Caydon High Street Development Pty Ltd v Darebin CC [2017] VCAT 1422

Caydon High Street Development Pty Ltd v Darebin CC [2017] VCAT 1422 - VCAT 2017 case summary — Zoe

[27]

make associated changes to the permit preamble.[7]
The responsible authority indicated that it regarded this suite of changes as an improvement on the previous plans filed in the proceeding but retained concerns with the proposed changes. In summary, the responsible authority considered that:
- the amendments would not meet the objectives of the current Design and Development Overlay (Schedule 3) (DDO) and the 'package' of changes introduced to the planning scheme via Amendment C137;
- the streetscape presentation was insufficiently resolved;
- there would be unacceptable visual bulk to sensitive residential properties to the rear. In particular, it emphasised that the proposed setbacks from the west boundary would present excessive massing and a poor transition in scale, such that the amended proposal would be detrimental to the Gertrude Street streetscape and heritage character and would be contrary to the setback controls contained within the DDO; and
- the proposal would result in unworkable storage areas for residents of some apartments.
A number of the respondents live proximate to the review site. Others are broadly local yet have concerns about the impacts of the changes to approved development. They opposed the amendments on similar grounds to the responsible authority. They were particularly concerned about the certainty of the original decision and associated permit being eroded.
In addition, residents emphasised concerns about the urban design response being a lesser outcome than the current proposal and raised amenity issues arising from the interface with a low rise residential area.
In arriving at this decision, we have considered all statements of grounds filed with the Tribunal, including those from non-parties.
The applicant submitted that the amendments would result in an improved development which would support current policy directions with respect to urban intensification, built form outcomes, activation of streestcapes and would also provide acceptable amenity outcomes to neighbours and future residents.

[40]

In the outline submissions filed with the Tribunal, the applicant conceded that the control would limit a new building on the land to six storeys or 20 metres in height. However, in submissions at the hearing, the applicant subsequently submitted that the DDO restricts the height of a building (to 20 metres) but does not in fact restrict the number of storeys, since clause 2.1.2 refers to a new building not exceeding 'the maximum height' shown on the maps.
I find that that the wording and mapping of this particular schedule in combination provide two relevant restrictions for this site - new buildings cannot exceed six storeys, or 20 metres in height.
In terms of the map to the schedule, it can be reasonably inferred from the nearby marking of "6" south of Gertrude Street that the subject land is included within an area of six storey maximum height, assisted by the horizontal red line demarcating the relevant area north of Oakover Road as an area of six storey maximum building height. It is clear that the site itself is identified as a strategic site within the Junction map.
While there is no maximum height in terms of metres specified for buildings in the map attached to the schedule (being an anomaly), this is clearly specified in the wording of the provision itself and its intention is obvious in this regard.
Maximum building height can be prescribed in a number of ways. In the case of this DDO, it is evident that both measures (i.e. storeys and a measured maximum height) were intended to be used together to avoid any doubt, particularly given the mandatory nature of the control.[12]
I consider that this analysis of the controls applying to the subject land is generally consistent with the suite of documentation accompanying the relevant Panel Report and the analysis of the Panel.[13] This interpretation is also consistent with the parent provision of the DDO which enables a schedule to include requirements pertaining to building height or other requirements relating to the design or built form of new development.
Nevertheless, it would be significantly desirable for the map to the schedule to be amended sooner rather than later to clearly depict the number of levels and maximum heights for all mapped properties to avoid future doubt.
The issue of the angle of the rear setback was addressed in submissions concerning the merits of the proposed amendments. In my opinion, comparable issues arise in respect of the restriction in clause 2.1.3 of the Schedule, which appears to nominate mandatory rear setbacks where there is an adjoining residential site.
In reality, these are far exceeded by the current approval and would be perpetuated in the amended proposal. This is especially the case for the upper levels of the building which must otherwise be set back at a 30 degree angle from adjoining residential sites to the rear, as identified in Map 1.
There are no express transitional provisions that accompany this schedule, and ordinarily, any proposal would need to be addressed against all provisions of this overlay.

[47]

The parties agreed that the development has been approved at a number of storeys and a maximum height which are above those now specified for the relevant area in the DDO.[20] It has also been approved with reduced setbacks compared with the current mandatory suite of provisions. Essentially, the current approval takes the benefit of the earlier suite of planning scheme provisions which did not prescribe mandatory controls pertaining to height or setbacks.[21]
It is relevant that there is no indication in the current DDO3 provisions that the maximum height restriction or staggered setback requirements are intended to operate retrospectively.
In my opinion, in line with relevant case law, this has significant consequences for opportunities to vary this permit, which extend beyond the current requirements in the planning scheme. This represents rights or privileges that have been accrued under the permit to exceed the current controls pertaining to maximum building height and minimum setbacks, amongst other restrictions.
A further question that arose in the current proceeding is how to define the right that has accrued under the permit - is it a right to construct a building above the current prescribed maximum height, or is it a right to construct a building to a specified level?
The responsible authority submitted that the extent of any accrued right in this case is confined by the precise maximum height of the building depicted on the set of plans endorsed under the permit immediately before the gazettal date. Consequently, it submitted that the accrued right is to construct a building with a maximum height of 20.55 metres. The amended proposal would seek to increase this maximum height by approximately 500mm in addition to providing an extra storey of apartments.[22]
With respect, I find this submission misguided. At the time the permit was granted, a building could lawfully be approved on the subject land to an unrestricted height. In this context, the measurement of 20.55 metres is almost arbitrary since it was not referenced to any height limitation in the scheme at the time. A building of seven storeys could have been approved consistently with the Tribunal's decision at a height of 22 metres, for example.[23] Therefore, I find that it is not reasonable to seek to limit the accrued right in this case to the measure of maximum height depicted on the currently endorsed set of plans.
A more vexed question may be whether there is an accrued right to construct above a mandatory height where there is an existing permit for a building that is below that height, as was considered in Pantas v Boroondara City Council.[24] In such a case, it was arguably relevant to consider the maximum height approved on the plans for that purpose. That aspect of the reasoning in that case is distinguished on the basis that the approval at present is above the height stipulated in the newly introduced control.
In summary, I find that the opportunity to increase the height or number of storeys or to make other changes to the permission that has been granted is preserved in the current proceeding because the proposed amendment sits outside the application of the mandatory controls that would presently apply to a new proposal.
In Gembrook Pines, Senior Member Wright held that there was no warrant to impose a strict literal interpretation since section 28(2) of the ILA is a permissive provision. However, he observed that clearly the right could not extend to a 'transformation' of the development.[25] I would agree.
The Tribunal in that case nevertheless considered that there were limitations on the scope of the accrued rights that had been conferred, by virtue of section 35(a) of the ILA. That section provides:

[54]

The subject land is within an area identified by policy as an area of urban intensification. The reference to the maximum number of storeys in the DDO was intended to provide an integrated approach to maximum building heights for the Junction as a whole. The subject land is identified within an area with a consistent maximum height of six storeys (or 20 metres).
However, a relevant factor in this case is that the size and dimensions of the property are significantly larger than most properties within this part of the precinct, it occupies a large corner site and has been identified in the control as a strategic redevelopment site. In our opinion, this affords some flexibility in terms of the design response on the subject land, so long as the integrity of built form along the corridor is not compromised and the amended proposal responds suitably to its residential (rear) interface.
The 'gains' in providing an additional storey to the development have been achieved by crimping height off various levels of the approved building. This has resulted in a total increase in building height of half a metre. In the context of an approximate 20 metre high building within this location, we consider that the overall increase in height will be imperceptible. It is also relevant that this increase is taken from a point near High Street, which is emerging as a robust medium scale mixed use development corridor.
An aspect of amendments will also result in a reduction in height of the lower levels of the development, which are most proximate to residential properties and are in more direct viewlines.
We also accept the evidence of Mr Bastone, confirmed by our site inspection, that there is currently no perceptible horizontal alignment of building storeys across this part of High Street. While we recognise that both measures have been used to define height, we regard this element as far less critical compared with overall height in terms of setting expectations for the general scale and building presentation to the street.
Whilst we respect the strategic intentions underpinning DDO3, we consider that the changes proposed in this case would not undermine the objectives of that overlay. In our opinion, the amendments proposed would still result in a building with a high level of compliance with the purposes of the overlay and its decision guidelines. With the benefit of the slope, it would also result in a building of comparable perceived height in this part of the High Street corridor as existing buildings, such the Novat building opposite at 142-144 High Street.
By reference to the objectives in schedule 3 and clause 22.01 of the planning scheme, the amended proposal would still:
- Result in high quality urban redevelopment that achieves higher residential densities;
- Provide activation to High Street (increased somewhat for the reasons discussed below);
- Introduce commercial and residential development to improve the visual amenity of built form within the Junction;
- Achieve a balance between intensification, internal and external amenity (as discussed further below);
- Lead to cumulative high quality design outcomes;
- Provide a transition in scale along the side street frontage that responds to the character of adjoining sites to the rear;
- Provide dwelling diversity;
- Direct the building mass towards High Street and provide articulated built form with an activated public realm; and
- Subject to our analysis below, ensure that rear building setbacks are sympathetic to topography and minimise their visual dominance.

[55]

The approved plans detail Level 4 and upwards of the building being partially set off the northern boundary (with the adjacent commercially zoned land), and entirely off the southern boundary adjacent Gertrude Street. The amended plans propose that Level 4 (and 5 and 6) be constructed to the north and southern boundary.
Balconies extend into the approximate 2 metre setbacks from the southern boundary provided at Levels 4 and 5 of the endorsed plans.
The responsible authority asserted that these encroachments into the previously approved setbacks would increase the sense of bulk and mass. They considered that the approved setbacks from the northern and southern boundaries above the podium level provided for a sense of transition that would not exist in the amended plans.
The Tribunal in its previous decision was largely silent on the issue of proposed setbacks from the northern and southern property boundaries.
With respect to the northern elevation, we are not persuaded that a zero setback to this boundary would result in excessive bulk or a lack of transition to other uses. The site as this interface adjoins other land zoned for commercial purposes. While this land is currently developed with single storey retail shopfronts, the policy and zoning support now provided by the planning scheme encourages the redevelopment of this and adjacent sites for more intensive commercial and residential development of up to six storeys in scale. Subject to appropriate design treatment of this elevation, we are satisfied that the extension of the building footprint at the upper levels to the northern elevation is an appropriate response to the site context.
With respect to the southern elevation, opposite the site in Gertrude Street are buildings of single and double storey form currently being used for office purposes. These buildings are partially built to the boundary with Gertrude Street, and while windows exist within the facades, there is not a great sense of activation along this elevation.
This street corner is viewed in the context of the mixed use, higher scale High Street 'spine' of emerging development. It can be reasonably anticipated that the property on the south-west corner of the intersection will be redeveloped with a contemporary mixed use development of up to six storeys in height, albeit extending into Gertrude Street for a shallower depth compared with the subject land.
In this context, we find the proposed changes in setback, modulation and fenestration towards these street corners to acceptably provide a more robust presentation. The amendment to the upper floors along the Gertrude Street elevation would retain a high level of visual interest and articulation due to their balconies and changes in materials.

[56]

The approved plans detail a stepped interface with the residential properties at No. 4 Gertrude Street and No. 31 Garnet Street (i.e. the intervening laneway).
The setbacks from this interface broadly comply, and in most cases exceed the setback envelope defined by standard B17 of ResCode (used as a guide). At fourth floor level and above the building was proposed to be set back between 16 and 19 metres from these adjoining residential properties. (That part of the building east of the communal open space is set back at least 18 metres to balconies at first floor level and above).
The design also maintains a large communal open space above the car park at ground floor level. This open space is located to the western side of the proposed building. The open space has been sited so that it coincides with the rear garden of No. 4 Gertrude Street. The first, second and third floor levels are also setback between 17 and 19 metres for the extent of this open space.
The Tribunal in its original decision found that the design of the western interface of the proposed building, the proposed setbacks and the siting of the communal open space, provided a sufficiently appropriate response to this sensitive interface. The Tribunal noted that the development had been designed to achieve the ResCode standards relating to this issue, even though ResCode did not directly apply to the proposed development
With respect to the amended plans, the responsible authority concedes that the revised setbacks generally comply with the ResCode setback requirements and, except for Level 4, setbacks approved by the Tribunal in the Mance Property decision. Mr Bastone's evidence was that subject to the amended plans satisfying ResCode Standard B17 Side and Rear Setbacks Objective, that the altered setbacks will not result in any increased visual bulk to the western interface.
We find that the overall building form will continue to transition away for the western boundary as the building height increases, and subject to a condition requiring that the development demonstrate the setbacks as being in accordance with Standard B17, the amended built form would not result in an inappropriate change from the original proposal, notwithstanding the addition/expansion of certain apartments at level 4.
We are satisfied that the scale of the amended built form is carefully moderated through varied setbacks, materials and recession of upper levels. The upper floors in particular would continue to have a high level of visual interest and articulation due to their balconies and changes in materials.
The amended plans 'push back' the footprint of the building at the central area of the site where the communal open space is proposed. In effect, this will increase the setback of the built form in the area closest to the secluded rear yard of the Passaportis property, which we regard as the most sensitive interface.
While we understand the concerns of respondents with respect to the visibility of the building form, we are of the opinion that the visibility of the one additional level sought within a comparable overall building height is a temporary concern, as we think that it is inevitable that its presence will diminish over time as further development occurs in this precinct, including the adjoining site to the south. Also, given the upward view lines from most proximate properties, we are inclined to the opinion that the additional storey within the development envelope will not result in any material difference in presentation of the built form to those properties.
In combination, we are satisfied that the amendments sought would continue to provide for a building with a high level of visual interest and which would fit comfortably in this location in line with policy aspirations for a spine of mid rise mixed use developments along this part of High Street which address nearby residential properties via a transition in built form.

[69]

An experienced architect must be engaged to oversee the design intent and construction quality to ensure that the design and quality and the appearance of the approved building is maintained to the satisfaction of the Responsible authority.
Before the development starts, amended plans must be submitted to and approved by the Responsible authority. Three copies of the plans drawn to scale with dimensions must be provided. When approved, the plans will be endorsed and will then form part of the permit. The plans must generally in accordance with the plans by Caydon Property Group (Drawings 04 to 22, VCAT Amendments Submission REV 5), but modified to show:
- (a) The western elevation building setbacks to comply with Standard B15 at Clause 55.04-1.
- (b) Shadow diagrams and consequential building modifications to demonstrate that there will be no additional overshadowing of the secluded private open space of No. 4 Gertrude Street and No. 2/31 Garnet Street.
- (c) All windows within 15 metres of adjoining secluded private open space and habitable room windows of residential properties treated in accordance with Standard B22 at Clause 55.04-6.
- (d) The rooftop plant area and associated screening moved towards High Street to minimise viewlines from the public realm and residential properties.
- (e) The section of wall on boundary development at the northern end of the west boundary, which abuts the lane, reduced in height so there is no upstand protruding above the Level 1 roofline.
- (f) An increase in the size/depth of the vertical recesses to High Street at Levels 4, 5 and 6 to match those previously approved (3 metres in width and 6 metres in depth).
- (g) All balconies to meet Standard B28 at Clause 55.05-4.
- (h) All bedrooms to be a minimum of 3 x 3 metres not including wardrobes.
- (i) All living areas to be a minimum of 3 metres wide.
- (j) All dwellings to have a minimum floor to ceiling height of 2.6 metres in living areas and bedrooms.
- (k) A full colours and materials schedule with samples of materials, with external materials on the schedule and plans amended to:
  1. refer to glazed bricks snaps instead of matte brick snaps for C1; and
  2. provide variation to the monotone gold finish to the metal battens of the building edges and balconies facing or turning west, to appear as a more subdued building feature from the adjacent residential area to the west.
The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
Before the development starts:
- (a) an arboricultural report considering any measures required during construction to protect trees within 5 metres of the land must submitted to and approved by the Responsible authority; and
- (b) any tree protection measures required by the approved arboricultural report must be implemented

[80]

Prior to the issue of a building permit for any building or any works authorised by this permit, a development levy must be paid to Darebin City Council. The amount of the development levy for each charge unit must be calculated in accordance with Schedule 1 to the Development Contribution Plan Overlay.
Floor levels shown on the endorsed plans must be confirmed. The confirmation of the lowest floor level must take place no later than at the time of the inspection of the subfloor of the development required under the Building Act 1993 and the Building Regulations 2006. This confirmation must be in the form of a report from a licensed land surveyor and must be submitted to the Responsible authority no later than 7 days from the date of the sub-floor inspection. The upper floor levels must be confirmed before a Certificate of Occupancy is issued, by a report from a licensed land surveyor submitted to the Responsible authority.
If within six months of development commencing the responsible authority notifies the owner of the land that traffic management measures are required in the Gertrude Street road reserve to reinforce the intention that all vehicles leaving the car park on the land must turn left into Gertrude Street the owner must implement such measures to the satisfaction of the responsible authority. The measures to be implemented must be to the reasonable satisfaction of the responsible authority. The measures must be implemented prior to the occupation of the building. The measures must be implemented at the owner's cost.
Before the use starts, a sustainable transport display must be provided in a visually prominent location near both front entrances of the apartment entry foyer and must include public transport route maps and timetables and maps of walking and cycling routes to and from the site. The display must be regularly monitored and kept up to date to the satisfaction of the Responsible authority.
Prior to the occupation of the permitted building, a car parking allocation plan must be submitted to and approved by the Responsible authority. The plan must set out the allocation of onsite car parking to the occupants of and if appropriate visitors to the building.

[88]

Before the commencement of works, or other time agreed in writing with the Director of Public Transport, the bus stop and shelter in High Street including all associated infrastructure, must be relocated at a cost born by the permit holder to the satisfaction of the Director of Public Transport and deemed compliant with the Disability Discrimination Act - Disability Standards for Accessible Public Transport 2002.
The permit holder must take all reasonable steps to ensure that disruption to bus operation along High Street is kept to a minimum during the construction of the development. Foreseen disruptions to bus operations and mitigation measures must be communicated to the Director of Public Transport fourteen days (14) prior.
Before the use of the land commences, a Green Travel Plan must be prepared to the satisfaction of the Responsible authority following consultation with the Department of Transport (Public Transport Division). The Plan must be prepared by a suitably qualified person and must encourage the use of non-private vehicle transport modes by the occupiers of the land. The Plan must include the following:
- (a) A description of the location in the context of alternate modes of transport and objectives for the Green Travel Plan;
- (b) Outline Green Travel Plan measures for the development including, but not limited to:
  - (i) Household welcome packs - tram, train and bus timetables relevant to the local area must be included in the pack of information provided to purchasers upon a purchaser's occupation of an apartment;
  - (ii) Include a minimum of 10 by 2 hour Metcard (zone one / two) within the household welcome pack or a Myki pass (of equivalent value) and registration information;
  - (iii) Bicycle parking and facilities available on the land
  - (iv) Pedestrian routes to key destinations.
- (c) Monitoring and review.
The Green Travel Plan must not be amended without written consent of the Responsible authority following consultation with the Department of Transport (Public Transport Division).

At a glance

Court

Decision date

Source

Judgment (114 paragraphs)

Caydon High Street Development Pty Ltd v Darebin CC [2017] VCAT 1422 (19 September 2017)

Parties

Legislation Cited (4)