Victorian Civil and Administrative Tribunal|2004-09-09|Before: Carlos Constructions P

Carlos Constructions Pty Ltd v Moreland CC [2004] VCAT 1752 (9 September 2004)

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit. Business 1 Zone. Design & Development Overlay (DDO1). Clause 52.06 Car Parking. Shop & Dwelling (2 shop premises 121 dwellings in 10 storey building over basement levels). Site (Frontage 47 metres, Area 1597 square metres). Melbourne 2030. State and Local Planning Policy Framework. Zone Purposes. Effect on the significance of the heritage place. Neighbourhood character. Streetscape. Back yard amenity. Building envelope. Energy efficiency. Overshadowing. Privacy. Car parking, Traffic.

The order of the Tribunal is that the decision of the Responsible Authority is set aside. A permit is granted for shops and dwellings in a 10 storey building over 3 basement levels at 326-350 Lygon Street Brunswick generally in accordance with the endorsed plans and subject to the following conditions:-

1 Before the development commences, three copies of amended plans must be submitted to and when approved by the responsible authority become the endorsed plans and form part of this permit. These plans must be generally in accordance with the plans by Metaxas Architects (Drawings TP1.01 to TP1.10, TP2.01 to TP2.03 all Rev Dii) but amended to show:

(a) the buildings base or podium comprising 5 storeys rather than 6 storeys of the buildings 10 storeys;

(b) the designation of the tenacies marked as "retail" as "shop";

(c) Acoustic measures (if any) required to protect the internal amenity of the permitted dwellings in accordance with the recommendations of an expert acoustic report prepared to the satisfaction of the responsible authority;

(d) Measures (if any) required to ameliorate wind effects associated with the proposed building in accordance with the recommendations of an expert wind effects assessment report prepared to the satisfaction of the responsible authority;

(e) The glazing of the south façade of the "retail 2" premises adjacent to the car park accessway to improve sight distance at this location;

(f) The floor levels, wall and total buildings heights to Australian Height Datum (AHD);

(g) Environmentally Sustainable Design (ESD) measures in accordance with condition 6;

(h) Any other matters arising from the conditions of this permit which can be reasonably illustrated on the endorsed plans;

(i) The location of the basement car parks air exhaust vents away from the maternal and child health centre land;

(j) All exterior lighting colours materials and finishes, in particular including the lighting and paving of the land where publicly accessible and outside the curtilage of the building;

(k) The removal of all redundant vehicle crossings along the Lygon Street frontage;

(m) The design details of all plant, lift overrun and air conditioning equipment indicated on the roof plan and elevation plans;

All amendments must be made to the satisfaction of the responsible authority

2 The development as shown on the endorsed plan must not be altered unless with the written consent of the responsible authority.

3 If within 3 months of the date of this permit, the responsible authority notifies the owner of the land that it requires provision to be made within the development hereby permitted for the relocation of the electricity sub-station currently located on the maternal and child health centre land then the owner shall make such provision in a location and of an area which is to the satisfaction of the responsible authority.

4 Prior to the commencement of the development, a Car Park Management Plan must be submitted and be to the satisfaction of the responsible authority. The Plan must address the following matters:

(a) Access and security of the car parking areas, including after hours access for residents and visitors and management of restricted and unrestricted parking areas.

(b) Within the basement car park the allocation of 125 car parking spaces for occupiers of the apartments and 21 visitor spaces for the apartments.

(d) The location and management of any vehicle access card reading, intercom and/or other security device required to operate the gate into each car park.

(f) Access for service and waste collection vehicles.

5 Prior to the commencement of the development, a Disability Access Plan must be submitted to and approved by the responsible authority. When submitted and approved to the satisfaction of the responsible authority the plan will be endorsed and form part of this permit.

6 Prior to the commencement of the development, an Environmentally Sustainable Development (ESD) Management Plan must be prepared by a suitably qualified environmental engineer or equivalent, outlining the design initiatives and construction methods to be incorporated into the development. This report must include, but not be limited to the following:

(b) Water Conservation and Re-use Plan, including stormwater retention and reuse;

(e) Schedule for monitoring of the ESD Management Plan;

(f) A demolition and construction Waste Management Plan.

When submitted and approved to the satisfaction of the responsible authority the plan will be endorsed and form part of this permit.

7 Prior to the commencement of the development, a comprehensive waste management plan must be submitted and approved by the Responsible Authority. When submitted and approved to the satisfaction of the responsible authority the plan will be endorsed and form part of this permit.

8 Prior to the commencement of the development, a construction management plan must be submitted and be to the satisfaction of the responsible authority. When approved the plan will be endorsed and will then form part of the permit. Three copies must be provided. The plan must address, but not be limited to, the following:

(b) Site contamination and disposal of contaminated matter.

(c) Containment of dust, dirt and mud within the site, and the method and frequency of clean up procedures in the event of build up of matter outside of the site.

(e) Measures to minimise the impact of construction vehicles arriving at and departing from the land.

(g) A liaison officer with a mobile telephone number for contact by residents and the responsible authority in the event of relevant queries or problems experienced.

(h) The storage and collection of waste and construction materials.

9 Prior to the commencement of the development allowed by this permit, or prior to any other date, event or construction phase approved by the responsible authority upon the request of the owner, the owner must provide:

(a) A Certificate of Environmental Audit in accordance with Section 53Y of the Environment Protection Act 1970; or

(b) A Statement of Environmental Audit and/or Section 53Z of the Environment Protection Act 1970. A Statement must state that the site is suitable for the use and development allowed by this permit.

10 All conditions contained within the statement of environmental audit must be complied with to the satisfaction of the Responsible Authority. Written confirmation must be provided by a suitably qualified environmental professional or other suitable person acceptable to the Responsible Authority.

11 Where there are conditions on a statement of environmental audit that require ongoing maintenance and/or monitoring requirements, the owner must enter into a Section 173 agreement under the Planning and Environment Act 1987. The Agreement must be executed on title prior to the commencement of the development or prior to any other date, event or construction phase approved by the responsible authority upon the request of the owner. The owner is responsible for all costs associated with drafting and execution of the Agreement, including those incurred by the Responsible Authority.

12 The area set aside for the parking of vehicles and access lanes shown on the endorsed plan must be constructed and marked out prior to the occupation of the development to the satisfaction of the responsible authority. Thereafter the car spaces must be maintained and not used for any purpose other than the parking of vehicles unless with the written consent of the responsible authority.

13 Any plumbing pipe, ducting and plant equipment must be concealed from external views to the satisfaction of the responsible authority. This does not include external guttering or associated rain water down pipes.

14 Prior to the commencement of the development, a detailed stormwater drainage plan must be submitted to and approved by the responsible authority.

15 All telecommunications and power connections (where by means of a cable) to the land must be underground to the satisfaction of the responsible authority.

16 No goods, storage containers, pallets or materials are to be stored on car parks, accessways or roadways.

17 Any external light on the land must be provided with a suitable baffle so that direct light is not emitted outside the land to the satisfaction of the responsible authority.

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

a) the development is not commenced within two (2) years from the date of issue of this permit;

b) the development is not completed within four (4) years fiom the date of issue of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing befbre 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.

Mr Chris Canavan QC with Mr Paul Connor, Barrister. Mr Canavan and Mr Connor called Mr Stephen Hunt, Traffic Engineer,

Mr Craig Czarny, Urban Designer, as witnesses in support of his submissions.

1 Metaxas Architects propose a ten storey building for Lygon Street East Brunswick near Victoria Street and Fleming Park. The architecture is contemporary and the building highly articulated. There are to be 2 shops at ground level, 103 inner city apartments in 9 storeys above and basement car parking. This building supersedes an earlier proposal for a 16 storey building.

2 The council and neighbours, whilst acknowledging new five storey buildings nearby, object to the bulk, height and amenity impacts of ten storeys. Council believes that taller buildings should not be considered until a structure plan for the area is prepared.

3 The land is in an urban village on an arterial road and tram route leading to Melbourne's city centre. The land is in a business 1 zone, backed by land in a business 3 zone, which forms a buffer to nearby residential land. It is in a pocket where can be developed with very limited impact on others. Urban villages are areas slated for change, provided development is of appropriate quality and style and enhances the function of the area.

4 We have found the this to be the case. The mix of shops and dwellings and the intensive development of the land is strongly supported by the planning scheme. There will be amenity effects, in particular the overshadowing of the maternal and child health centre, but these effects are not unreasonable given the planning policy framework. The existing planning scheme and Melbourne 2030 enable a timely decision to permit a building of this height even though a structure plan is yet to be prepared.

5 Mr Metaxas has designed a very attractive and carefully considered building. From a streetscape perspective it is considered that the base or podium of the building should be reduced in height by 1 storey but that the overall height is acceptable. The upper storeys are recessive and do not unduly affect the streetscape. We propose to grant a permit subject to this change for the reasons which are set out in this decision.

6 At the commencement of the hearing Mr Canavan applied to amend the permit application by the substitution of amending plans as foreshadowed in notice given in accordance with the Tribunal's practice requirements. The most notable change shown on the amending plans is the proposal to reduce the overall height of the building, above basement levels from sixteen storeys to ten storeys. No party opposed the amendment of the permit application in this way, and the Tribunal ordered the amendment of the permit application in accordance with Mr Canavan's request.

7 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 on a number of occasions.

8 The subject land, and all the land fronting Lygon Street for a considerable distance to the north and south of the subject land, falls within a Business 1 zone. The southern most of the three lots which constitute the subject land, is affected by a Design and Development Overlay (DDO1 - Heritage Protection) because of the lands abuttal to the maternal and child health centre a heritage place.

9 Shop is a permitted use in the zone, a permit is required for the use of the land for dwellings, because the frontage for dwellings at ground floor level exceeds 2 metres. A permit is required to construct a building or construct and carry out works under both the zone and overlay provisions. The zone provisions in this regard include exemptions in relation to notice and review.

10 Amendment C43 to the Moreland Planning Scheme proposes to introduce two new local planning policies, clause 22.10 Neighbourhood Character and Clause 22.11 Buildings Over Three Storey. The panel considering submissions in respect of this amendment has recently released its report and recommended adoption of the amendment subject to 43 detailed recommendations. These provisions and associated documents are referred to during the course of these reasons.

11 The subject land is a regular lot contained within three titles and located on the east side of Lygon Street approximately 18 metres south of Victoria Street in Brunswick. The intersection of Victoria Street with Lygon Street is controlled by traffic signals. The subject site is also located approximately 130 metres north of the intersection of Albert Street with Lygon Street. There are pedestrian signals a short distance north of Albert Street in Lygon Street. A bluestone paved right of way extends across the rear boundary of the site, running from Victoria Street south to Albert Street.

12 Under the planning scheme provisions an area centred on the intersection of Albert Street with Lygon Street is designated as the Lygon Street/Albert Street urban village.

13 The subject land contains three industrial buildings occupying almost 100 percent of their sites areas. The buildings were developed at various stages during the 20th century. The northern most building is a two storey building while the other buildings are single storey. The buildings are predominantly used for warehousing and peripheral retailing. To the immediate south of the subject land is the Brunswick Maternal and Child Health Centre, a modest single storey purpose built art deco brick building which is of considerable heritage significance, both architecturally and culturally.

14 The character of Lygon Street in this part of Brunswick is highly eclectic, with buildings fronting the street, which are predominantly commercial buildings dating from the late 19th century through to the end of the 20th century. Within the broader area, in Lygon Street, there has been some considerable redevelopment with a number of four and five storey buildings being constructed or recently permitted. These newer buildings are, with some exceptions, designed to be used for commercial purposes at ground level, and for dwellings above. In an economic sense, low order commercial/retail uses predominate along Lygon Street in this locality.

15 The neighbourhood character guidelines[1], which form part of amendment C43 of the Moreland Planning Scheme, set out a summary of the existing character for Precinct 76 which includes the subject land

The area is mainly zoned business uses but includes many small workshops and clothing factories/sales outlets. Its character is also moulded by Lygon Street' arterial status as it carries heavy traffic. The street's commercial nature also involves significant on-street parking and signage.

Setback varies along Lygon Street with some flats, service stations and workshops/factories set back. The area has an almost equal mix of Victorian, Inter-war and post-war buildings. However, the style of building is often difficult to read due to poor maintenance, renovation or conflicting signage.[2]

16 Land to the rear of the subject land across the adjoining right of way is occupied by industrial buildings fronting onto Gale Street and Victoria Street. Some Victoria Street properties and the Gale Street properties fall within a Business 3 zone, and are predominantly industrial in character, although there remains some of the original dwellings, among the industrial buildings, the closest being dwellings fronting onto Victoria Street at the south eastern corner of Gale Street. The closest residential uses within a residential zone are located on the north side of Victoria Street approximately 34 metres north east of the subject land.

17 Lygon Street for much of its length through Brunswick is affected by a Business 1 zone. An important characteristic of this part of Lygon Street extending from Victoria Street to approximately 100 metres south of Albert Street is that the land behind the Lygon Street properties both to the east and west is affected by either a Business 3 zone, or an Industrial 1 zone, with the exception of a small area of residentially zoned land on the north side of Albert Street to the east of Lygon Street. This characteristic is undoubtedly related in part to the selection of this area as an urban village, and is important to this application for review, because of its implications for the direct amenity affects of the proposed building on dwellings within a residential zone.

18 The proposal is for a ten storey building over basement car parking. The various components of the building can be described as follows:

19 There are three basement levels in which a total of 158 car spaces are provided. The layout of the basements is very straightforward, and there are no tandem car spaces. Vehicular access to the basements is via a ramp connecting to Lygon Street in the south western corner of the subject land. The central lift/stairway core extends to all levels of the basement, and bicycle parking is provided adjacent to this lift core at all basement levels.

20 The podium of the proposed building comprises of six storeys. The ground floor contains two retail tenancies, the entry lobby to the proposed apartments above, a loading facility access from the rear right of way and various services and facilities. Levels 1 to 5 each contain 14 apartments. The east facing apartments are separated from the west facing apartments by a common central open lobby space which extends through the building from levels 1 to 8. The east and west facing apartments are provided with east and west facing balconies respectively. The building façade at ground floor level is setback approximately 1.7 metres from the frontage of the site. The balcony balustrades are solid structures (formed concrete with a crumpled finish) and are designed in a visual sense to define the front façade of the podium. The balustrade setbacks from the frontage of the site vary, but over a distance of 37 metres, the balcony balustrades are located close to the frontage with an average setback of 0.7 metres. In this same area, the façade at levels 1 to 5 is setback approximately 4 metres. The eastern balustrades are built onto the rear boundary of the site, while the eastern façade is setback approximately 2.2 metres.

21 The proposed design has three middle storeys, levels 6 to 8. The footprint of these levels is considerably smaller than the levels below, and each level contains ten apartments. As for the podium levels, the east and west facing apartments are separated by the common open lobby space. Again the balcony balustrades are solid, visually prominent building elements and they are setback an average of approximately 6.8 metres from the frontage. The west façade of the building at these levels is setback between approximately 8 and 10 metres from the frontage of the site. The eastern balustrades are built onto the rear boundary of the site, while the eastern façade is setback approximately 2.2 metres. Setbacks from the north and south boundaries of the subject land are also increased at the middle levels

22 The top storey, level 9, has a smaller footprint than the levels below and contains three dwellings. The balcony balustrades at this level are glazed, and therefore do not possess much visual weight.

23 The western balustrade and façade have minimum setbacks from the frontage of the site of 8.22 metres and 10.88 metres respectively. The eastern façade is setback a minimum of approximately 3.3 metres. The roof form has been designed to add to the architectural expression of the building.

24 Mr Metaxas provided a number of perspective views of the proposed building, one of which is reproduced below, to help illustrate the complexity of the design and its articulation.

25 In an overall sense the proposed building is highly articulated, indeed the building form is so complex it is difficult to describe in words. Having considered Mr Metaxas' evidence, we are satisfied that the architecture of the proposal is of a very high standard, and that the building is, as an example of its type, a very attractive building. Moreover, we were impressed by the innovation and practicality of many of Mr Metaxas' design features, examples of which are:

* The common central open lobby space that extends through the building above ground floor level, it is open at its ends, creating a sense for residents of moving from the outside to the inside when entering their apartments, facilitating natural ventilation, and enabling an expanded suite of options for the "interior" design of this space, and;

* the enclosure provided on each balcony, which is available to house and screen air-conditioning condenser units, while at the same time providing some storage space for a barbeque, or for outdoor furniture etcetera.

26 The Responsible Authority issued a Notice of Refusal to Grant a Permit for the following reasons:

1. The proposed building displays excessive building height and building bulk that is completely out of context with surrounding development.

2. There is no strategic justification or urban design basis for a building of this size or scale on this site.

3. The proposed development fundamentally fails to satisfy core SPPF and LPPF objectives in respect to urban design, neighbourhood character and heritage.

4. The development fails to meet the objectives for urban design as contained within Clause 19.03 of the Moreland Planning Scheme.

5. The development fails to meet the objectives for development within Urban Villages as contained within Clause 22.02 of the Moreland Planning Scheme.

6. The development fails to meet the objectives for development within the Lygon Street Precinct as contained within Clause 22.04 of the Moreland Planning Scheme.

7. The development fails to meet the objectives for development adjacent to heritage places as contained within Clause 22.04 of the Moreland Planning Scheme.

8. The development is not consistent with the City of Moreland's strategic vision for retail and residential development and in particular is not justified against the State and Local Planning Policy Frameworks including the Municipal Strategic Statement.

27 Having inspected the subject land and considered the submissions and evidence, we are of the opinion that significant issues in this application are:

* The suitability of the land for intensive redevelopment having regard to planning scheme policies and Melbourne 2030;

* The heritage issue, that is the impact of a proposed development on the significance of the Maternal and Child Health Centre a heritage place;

* Amenity impacts including overshadowing, car parking, traffic (including pedestrian safety) and waste management;

* The building height in the absence of a structure plan and from an urban design perspective.

Suitability of the land for intensive redevelopment

28 Mr Milner in his statement of evidence was able to conclude in part

The concept of a mixed use development with residential at the upper level, and a greater intensity and density than existing, is supported by policy at state, metropolitan and local levels.

29 This conclusion was based upon a consideration of the State Planning Policy Framework, in particular clauses 14.01 and 14.02, the Local Planning Policy Framework and Melbourne 2030.

30 Mr Canavan in particular referred to Clause 21.02 the Regional Context. This clause sets out the locational advantages of Moreland, in a metropolitan context, and Mr Canavan argued that these characteristics added weight to the more general planning considerations which supported the proposed development.

Moreland covers a significant part of the northern region of Melbourne. Map 1 shows Moreland in its regional context. The main advantages of its location include:

* proximity to business, entertainment and educational facilities of Melbourne's Central Business District (CBD);

* major transport links - including the Western Ring Road and City Link project to the ports, airport and industrial areas;

* business, production and communication hubs at the CBD, airports and the Hume and Laverton North industrial areas;

* proximity to large mixed-use activity centres at Broadmeadows and Moonee Ponds, and to Airport West, Highpoint and Northland shopping centres; relatively cheap land;

* a manufacturing base that can be restructured to become a centre of design excellence for the Asia Pacific Region; and

31 It struck us that we looked directly at the Melbourne CBD from the land down the Lygon Street artery, in our mind direct evidence of this regional context.

32 There is explicit support for more intensive mixed use development on transport routes and in urban villages to be found within the local policy framework. An example of this is the key strategic statement in respect of housing which is found at clause 21.06-1 Housing[3].

Housing form and type have major impacts on liveability and efforts to achieve environmentally sustainable development.

There are compelling strategic reasons to support urban consolidation and to provide new housing developments in existing areas. ...

It is also important to ensure that the stresses caused by increases in density are minimised by good design and improvements to urban character.

A declining population may mean a declining economy. New housing is needed to maintain the present population and provision of local services. This means constructing new dwellings. New `infill' housing needs to enhance rather than fragment the preferred urban character of the surrounding area. ...

Adequate, appropriate and affordable housing are basic factors affecting quality of life. ...

Housing affordability is not only a direct outcome of housing rent or purchase price, it also includes costs associated with transport to work, shops and services. ...

Building a variety of housing types will foster a more diverse community, with subsequent benefits flowing from that social diversity. Large development sites and smaller infill sites create opportunities to meet some of the housing needs of the region.

To manage the location and design of increased density development to achieve environmental sustainability.

Support increased residential density developments that include features which increase environmental sustainability, ...

Support increased housing intensity that exceeds the density benchmarks identified in the table in Diagram 2, if it is located within walking distance (approximately 400m) of tram or train services or within urban villages, provides clear social benefits and displays design excellence.

In accordance with Clause 55, encourage medium density housing across the municipality which achieves good amenity for occupants and neighbours and contributes to preferred urban character.

Recognise the opportunity for higher density development and innovative design on large sites that will benefit from establishing their own unique character with minimal impact on surrounding area.

To encourage the development of well planned urban villages.

33 In a recent report prepared by the Responsible Authority, entitled Moreland Urban Villages Review, February 2004, urban villages are defined in the following terms:

A suburban centre with either a 400 or 800-metre radius, having a range of community facilities and activities, a mix of housing and substantial local employment, and linked to other suburban centres by public transport. It has safe, attractive and well-defined public realm of interconnected streets fronted by buildings, and well-used public open space.[4]

34 In the local planning policy framework clause 21.05 sets out Moreland's vision, here it is said the urban villages proposed in the Moreland City Plan aim to embody this vision. Clause 21.05-2 defines the focus areas for change within the municipality, and the first of these are the urban villages.

Council's vision to create an environmentally sustainable and livable city, where people can shop, work and socialise locally is captured in the Urban Village concept. ...

A central concern of this implementation plan is to control development within urban villages so that the appropriate quality and style of development is achieved and the urban village concept is not simply abused as a way of cramming inappropriate development into streets that currently function well.

35 The urban villages policy is established in the Moreland Planning Scheme, as a means of providing a strategic direction for redevelopment within Moreland. The Urban Villages Review referred to above, was in a sense seeking to reconcile the urban villages policy with Melbourne 2030 and its emphasis on more intensive development around activity centres.

36 The review document reviews, analyses and makes recommendations in respect of the Lygon Street/Albert Street urban village. An extract of the commentary is set out in part below:

The lack of local convenience retailing would mean that this UV would not be classified as a NAC. In the original UV assessment this centre achieved a higher weighting because its street network, develop opportunities and access to open space. Given the opportunities for redevelopment of some industrial areas with the centre, the extent of the B1Z and access to the PTTN the use has a greater potential to become a viable NAC in the medium to long term.[5]

37 To some extent the fact that the review concluded that the Lygon Street/Albert Street urban village could not regarded as a Neighbourhood Activity Centre at present, for the purposes of Melbourne 2030, was a factor which for the responsible authority weighed against the intensity of development proposed in this case. We do not consider that this is the correct approach, because:

* The Lygon Street/Albert Street urban village, scored highly on the basis of the assessment criteria established for the selection of urban villages;[6]

* The selection criteria for urban villages are not dissimilar to those inherent in Melbourne 2030 other than for the emphasis in Melbourne 2030 on retail function;

* The hierarchy of activity centres implicit in Melbourne 2030, is not easily applicable to the linear retail and industrial strips found on the roads such as Sydney Road, Lygon Street and High Street Northcote. In the case of Lygon Street the proposed urban villages imply some structure or form to the redevelopment of this linear strip.[7]

38 However, the most important reason for the continued relevance of urban villages to this project is that urban villages remain at the centre of the Local Planning Policy Framework within the Moreland Planning Scheme.

Melbourne 2030 And Its Relationship To Local Policies

39 The evidence before the Tribunal in relation to the State Planning Policy Framework, and the discussion of the Local Planning Policy Framework set out above, demonstrates conclusively that Melbourne 2030 is not a radical new plan. Rather it restates and reinforces the fundamental themes which have been important to metropolitan planning for a very long time. The Moreland MSS is an exemplar of how this metropolitan approach to planning is implemented at a local level.

40 An important difference between Melbourne 2030 and earlier strategic documents is its reanalysis of population growth and housing demand, and the targets it sets for the achievement of a satisfactory outcome in the light of these anticipated demands. We think the effect of Melbourne 2030, when overlaid with the essentially similar policy framework within the planning scheme, is to emphasise the importance of optimising development opportunities where that can be achieved without unreasonably comprising other important planning objectives relating to issues such as heritage, neighbourhood character, or the established amenity of localities.[8]

41 It is our conclusion that having regard to Melbourne 2030, the State Planning Policy Framework, but more particularly having regard to the Local Planning Policy Framework, the more intensive redevelopment of the subject land for a mixed use purpose is strongly supported.

42 As stated above the southern most of the three lots which constitute the subject land, is affected by a Design and Development Overlay (DDO1 - Heritage Protection). The design objectives of Schedule 1 to the overlay are:

* To protect and enhance the environment of heritage places.

* To ensure that the character and appearance of heritage places is not adversely affected by the design of new buildings on adjoining land.

* To ensure that building heights, building bulk and setbacks on the sites adjoining heritage places are compatible with and enhance the character and appearance of the heritage places.

43 This overlay applies to land adjoining heritage places throughout the City of Moreland. The purpose of the overlay is to enable consideration to be given to the impact of a proposed development on the significance of that heritage place. It was accepted that the Maternal and Child Health Centre has heritage significance. As the health centre is a modest single storey building, there is an enormous disparity in scale between the proposed building and the health centre. Nevertheless, the design has sought to respond to the health centre to some degree, with the building being setback from Lygon Street at the south western corner of the subject land to open up views to the health centre from the north in Lygon Street. Moreover, the setting back and articulation of this aspect of the building increases through the upper levels of the building.

44 We agree with the conclusions of Mr Read in application for review P1516/2003 Carlos Constructions Pty Ltd v Moreland City Council, a decision in relation to the property to the south of the Maternal and Child Health Centre. The health centre is a modest, almost domestic building set in its own garden. In a streetscape sense the health centre contrasts sharply with the existing streetscape, and even more so with any reasonably anticipatable future streetscape based upon policies in the Moreland Planning Scheme. This is a dichotomy which, as Mr Read observed, has existed since the building was first constructed in 1939.[9] The subject land is a substantial development site, located centrally within an urban village. Whether or not the site is developed as a five storey building, or as a ten storey building, the sharp variation in streetscape character resulting from the existence of the health centre will inevitably occur. Considering the planning scheme as a whole, it would be inappropriate to significantly compromise the potential for the redevelopment of the subject land, to achieve a greater transition between the health centre and development on adjoining sites.

45 The significant off site amenity impacts argued during the course of the hearing related to overshadowing, car parking, traffic and waste management.

46 In relation to overshadowing there are two issues of concern. The first is overshadowing of the maternal and child health centre, and the second is the overshadowing of the Lygon Street footpaths.

47 To the east and north of the health centre building there is a secure area of open space which contains some play equipment, a sand pit and a small grassed area. The south wall of the existing single storey industrial building to the north abuts the northern boundary of this open space. At present the overshadowing of this open space, at least during the midday period is limited to the shadows cast by this wall which is between 3 and 4 metres in height. Consequentially this open space area is relatively sunny, and sunlight penetrates the windows of the health centre.

48 In addition to the normal consultations between the maternal health care nurses and their clients, the health centre is used during the week by numerous playgroups which operate under the auspices of the health centre. The playgroups utilise a large room within the health centre, and the open space area discussed above.

49 The issue is the overshadowing of the open space, and the health centre itself and the impact of that overshadowing on the uses, in particular the playgroups.

50 The proposed ten storey building will undoubtedly extensively overshadow the health centre and its open space. During the course of the hearing Mr Canavan tabled a shadow diagram for a five storey building on the subject land, and this diagram demonstrates that a five storey building on the subject land will also substantially overshadow the health centre and its open space. Indeed any building taller than the existing single storey building to the north of the health centre site will add substantially to the existing overshadowing. If one has regard to the overshadowing effects of various forms of development on the subject site, and the character of development preferred in this locality on sites such as the subject land having regard to the Planning Policy Framework, then we are of the opinion that while the effect of overshadowing on the health centre is significant, it is not unreasonable in the context of this locality.

51 Moreover, while the overshadowing effect is substantial, for much of the year there would continue to be morning and afternoon sunlight affecting parts of the health centre land. The health centre and the land will continue to enjoy excellent access to daylight even when overshadowed and it is probable that there will be views to sunlit gardens, walls and roofs from within the health centre land. The overshadowing is not in any fundamental way an obstacle to the continued use of the health centre by playgroups.

52 An interesting submission made on this topic, was the re-emergence of rickets as a health problem within the community. Sufficient exposure to sunlight is an important aspect of health, and is particularly important in the prevention of rickets. However, a child attending a playgroup at the health centre will in most circumstances only be at the site for two to three hours per week, and some of that time at least will be indoors. We think it improbable that a child's attendance at the health centre could reasonably be regarded as an important or essential opportunity for that child to gain exposure to sunlight. Additionally it is common practice nowadays for children to wear hats and sunscreen when playing out of doors, particularly in circumstances were public liability is an issue.

53 The issue here is the overshadowing of the Lygon Street footpath. The design guidelines for buildings over three storeys which are associated with the amendment include objectives and design standards in respect of overshadowing at clause 2.1. The relevant objective and design standard are

To ensure new buildings allow good sun penetration to public spaces.

Development should not reduce the amenity of public spaces by casting any additional shadows, between 11 am and 2 pm on 22 September, on public parks and gardens, public squares, major pedestrian routes including streets and lanes and privately owned plazas accessible to the public.

54 This is a very onerous standard, and would, if applied literally, prevent the development of taller buildings near streets such as Lygon Street. However, this is a topic upon which the panel made a recommendation, that the design standards be amended to allow scope for additional shadow for taller buildings with a connection to such a street.

55 The proposed building will undoubtedly overshadow the east and west footpaths of Lygon Street at various times during the day. However, Lygon Street is a north south street and the public realm within the street will enjoy good solar access for substantial periods of the day, the actual period of sunlight penetration varying depending on whether or not you are on the eastern or western side of the street. We do not think that the overshadowing impact of the proposed building, on the public realm, is unacceptable.

56 There are 156 car spaces provided on site within the three level basement. On the basis of Mr Hunt's assessment this car parking supply exceeds demand in all of the empirical scenarios that he developed in his report. An assessment based on the table to clause 52.06 results in a car parking requirement in excess of the proposed provision, but it was not seriously argued that this was a reasonable assessment of the likely car parking demand.

57 Mr Hunt estimated that peak customer parking demand for the retail component of the proposed development will be 22 car spaces, and on the basis of his surveys he argued that these spaces could be comfortably accommodated on street in the immediate vicinity of the site. While during the business day, some additional car parking is likely to be available within the basement car park, it was conceded that these spaces are unlikely to be used by casual visitors to the retail premises.

58 We accept Mr Hunt's assessment that the customer car parking can adequately be accommodated on street. It must be acknowledged that the existing businesses on the subject land currently generate car parking demand, and that the 22 car spaces estimated by Mr Hunt to be the likely future demand, will not therefore be entirely new car parking demand. Moreover, it must be recognised that the subject land is within an urban village, the use of buildings for commercial purposes, particularly at ground floor level is encouraged, and that therefore any proposal for the redevelopment of the site will result in some demand for on street car parking as a consequence of the generation of commercial customers.

59 However, we note that the car parking assessment is based on the likely future use of the premises described as retail premises on the plans for the purpose of a shop. We think that any permission should expressly refer to the use of these premises as shops, because under the planning scheme retail premises is very broadly defined, and can include other uses with higher car parking generation characteristics. This should not be taken as indicating that we think such uses would be inappropriate, rather we think that it proper that the question of whether or not car parking should be waived in respect of higher demand uses be considered at the time such as a use is proposed.

60 There are three significant, and related traffic issues in this application. They are:

* The adequacy of the proposed car park access arrangements from a traffic engineering perspective;

* Whether or not it is preferable that car park access be provided off the rear right of way;

* Whether or not the proximity of the proposed car park accessway to the maternal and child health centre raises unacceptable safety concerns.

61 The only traffic engineering assessment before the Tribunal in relation to the performance of the proposed car park accessway which in effect creates a new minor intersection with Lygon Street was that undertaken by Mr Hunt. A number of objectors expressed concern about the likely performance of the intersection of the accessway with Lygon Street, referring to the difficulties experienced at other nearby uncontrolled intersections, such as Albert Street, or at Anne Street.

62 At some times, congestion in Lygon Street, will cause some delay to persons seeking to enter or leave the site, but we accept Mr Hunt's assessment that the presence of traffic signals at Victoria Street (and to a lesser extent at Albert Street) )will serve to break the flow of traffic and provide regular opportunities for vehicles to enter or leave the traffic stream.

63 As a matter of general principle it is preferable that the accessways to basement car parks in developments such as this be located on rights of way, or onto minor side streets. The reason for this is not so much a traffic reason, but an orderly planning reason. Car park entries tend to be visually unattractive, they can create gaps in what should be active street frontages, and vehicles entering and leaving the site can disrupt pedestrian movement in busy shopping streets.

64 The subject land is essentially a mid block site, so it is not possible in the context of this application to widen the rear laneway through to one of the intersecting streets, either Victoria Street or Albert Street. In this context, we tend to agree with the objector's submissions that the right of way is unlikely to be a desirable means of accessing the site, having regard to the overall size of the car park, even if a theoretical assessment of the capacity of the laneway and its intersections proved to be satisfactory.

65 The proposed car park entry is located adjacent to the health centre with its own vehicular crossover which is already an established break within the streetscape. The car park entry is set well back from the frontage of the site and is therefore less visually prominent. We accept Mr Hunt's assessment that the accessway will function well from a traffic engineering perspective.

66 Any intersection represents an additional risk to the safety of pedestrians. However the "intersection" created by the proposed accessway, involves low vehicle speeds and good site distances. The setback of the proposed shop fronts, the setback to the car park entry, and the open character of the frontage of the health centre, has the effect that both motorists and pedestrian are afforded the opportunity of being aware of each other. This high level of visibility will be enhanced if the southern façade of the "retail 2" tenancy is glazed adjacent to the accessway.

67 We do not think that the immediate proximity of the proposed accessway to the health centre site substantially increases the risk associated with the proposed accessway. Even if the accessway was relocated to the north western corner of the site, there would remain parents and children who would have to cross the accessway travelling to and from the health centre, and the site distances associated with such an entry would be diminished. Some form of fence or barrier would be desirable between the accessway and the health centre land, in case parents having entered onto the health centre land relax the vigilance which would be natural when walking with very young children along busy Lygon Street. A barrier preventing a child running onto the accessway may be desirable.

68 A variety of submissions were made to the Tribunal in respect to the question of solid waste disposal from within the proposed building. It was alleged that the provisions made on ground floor level for storage of waste is inadequate and concern was expressed about the use of the right of way for the removal of waste. In our experience of apartment style development, the provision made for the disposal and storage of waste from within the building, and its ultimate removal from the building, has been quite carefully considered. It is commonplace for buildings of this type to employ private contractors for the removal of waste. Without accepting the basis used by objectors for the estimation of the volume of wastes which should be capable of being stored within the building, we observe that even if it is true that the storage facilities provided are inadequate for the waste generated within a week, the solution is to move to twice weekly collections, rather than to double the storage space available. A condition of permit will require the waste management system to be satisfactory to the Responsible Authority.

69 It is our conclusion that the intensive redevelopment of the subject land will result in some off site amenity impacts. The most important of these impacts is the overshadowing of the maternal and child health centre, but even a five storey build would substantially overshadow the centre. These amenity affects do not go beyond what could be reasonably expected, having regard to the policies found within the Moreland Planning Scheme.

70 In many respects the major issue in contention in this application for review is the height of the proposed building. Mr Milner in his conclusions observed:

The matter of contention is the height and form of the proposed building which will be notably higher and distinctly a "tower" form, in a area where low-medium rise terraces have been the prevailing form of development. More intense residential redevelopments in the locality, consistent with policy, have respected the prevailing character, being predominantly terrace forms and approximately half the height of the proposal.

71 Within the existing planning scheme, the local planning policies on urban villages and the Lygon Street precincts, have policies which give some guidance to the assessment of a preferred neighbourhood character, and of the appropriate form and height of buildings.

22.02 DEVELOPMENT WITHIN DESIGNATED URBAN VILLAGES

This policy applies to areas designated as urban villages in the Strategic Framework Plan in the Municipal Strategic Statement.

* The use and development of land is consistent with any approved Urban Village Structure Plan.

* New development constitutes contemporary architecture that respects the scale and form of surrounding buildings.

* Higher densities will be considered in accordance with Diagram 1 - Deciding on Increased Density in the Municipal Strategic Statement.

* The design and layout of buildings face and reinforce the public realm.

This policy applies to land in the vicinity of Lygon Street, East Brunswick.

* Applications for use and development have regard to the Lygon Street, East Brunswick Concept Plan.

* Buildings reflect the scale and form of adjacent buildings with height differences generally not exceeding one storey.

* Buildings above 3 storeys may be considered on large development sites where taller buildings are set well back from street frontages.

* New developments (up to 3 storeys) are constructed to the street frontage to reinforce the existing predominant setback of Lygon Street.

* Within retail nodes, continuous retail facades are preferred, even where a premise is being used for non-retail use.

72 The neighbourhood character guidelines, which form part of amendment C43 of the Moreland Planning Scheme already referred to, sets out a preferred character statement, and performance measures in respect of a variety of character elements including building height.[10]

The preferred future character of Commercial Character Areas is for a mix of uses at higher densities and an increased scale to Residential Character Areas. Mixed use developments will become a common element in these areas with the residential component providing a broad range of housing types, with particular emphasis on providing smaller dwellings. An increasing number of new buildings will be two or more storeys, with active ground floor frontages, often of a commercial nature. Built form will become a more prominent element in the streetscape.

New development is encouraged to be of an increased density, scale and form, including increases in site coverage and height (subject to meeting relevant amenity standards). The pattern of front setbacks will be retained but where side and rear setbacks exist they will be reduced to allow an increase in density of new development.

* Building heights must be consistent with the Preferred Future Character statement described above and any relevant structure plan.

* If a structure plan has not been prepared, graduation in the order of up to 2 storeys difference to adjoining buildings is acceptable, subject to meeting relevant overlooking and overshadowing standards (in clauses 54, 55, 56 or the Design Guidelines for Buildings over 3 storeys).

73 The existing planning scheme in effect provides that on Lygon Street buildings should be constructed to the street frontage with a podium height of three storeys, and that buildings above three storeys may be possible on large development sites where taller buildings are set back from street frontages. The proposed neighbourhood character guidelines, only supports graduations in height of two storeys from adjoining buildings, in the absence of a structure plan.

Carlos Constructions Pty Ltd v Moreland CC [2004] VCAT 1752

At a glance

Court

Decision date

Before

Source

Judgment (259 paragraphs)

Carlos Constructions Pty Ltd v Moreland CC [2004] VCAT 1752 (9 September 2004)

Parties

Legislation Cited (2)