Section 80 of the Planning & Environment Act 1987; Yarra Planning Scheme;

Residential 1 zone, Apartment building, Neighbourhood character, Building Height, Building Bulk, Visitor Car parking, waiver of car parking.

Charter Group v Yarra CC [2011] VCAT 1113

1. The decision of the responsible authority in relation to permit application no. PLN 10/0746 is varied.
2. In accordance with section 85(1)(e) of the Planning and Environment Act 1987 the Tribunal directs that permit PLN 10/0746 must contain the conditions set out in the interim order of the Tribunal dated 30 May 2011 with the following modifications:
   • (a) Conditions 1m) and 1n) are deleted

Mr Stuart Morris, QC direct brief. She called the following witnesses:

• Mr Ernst Mensforth, Traffic Engineer of Cardno Richards.
• Mr Mark Sheppard, Urban Designer of David Lock and Associates

Construction of a 6 storey apartment building to accommodate 29 dwellings including basement car parking.

Application under Section 80 of the Planning and Environment Act 1987.

cl 32.01 - 4 construction of more than one dwelling on a lot.

cl. 43.01 - demolition and buildings and works in a heritage overlay.

cl. 43.02 - 2 buildings and works in the design and development overlay.

Clauses 11, 15.01, 16.01, 18.02, 21, 21.03, 21.04, 21.05, 21.07, 21.08, 22.02, 22.05, 22.07, 22.10, 22.13, 43.01, 43.02, 52.07, 55 and 65.

734 sqm with frontage to Murphy Street of 37m and frontage to Burnley Street of 19.6m. The site contains two dwellings. To the north is a pet food shop in a warehouse sales format. To the east is a mix of commercial and residential forms.

West of the site is a 3.88m wide laneway with single storey terrace style development west of this laneway facing Murphy Street.

Development south of Murphy Street is a range of housing, predominantly three storey near the Burnley Street intersection.

I undertook an unaccompanied inspection the site before the hearing on 11 June 2011.

1. At the conclusion of the hearing, I gave an oral decision to amend the existing order of the tribunal to delete conditions 1m) and 1n). This is a summary of reasons given at the hearing.

1. This review results from a decision by Yarra City Council to issue a planning permit for a six storey apartment building at 142 - 144 Burnley Street, Richmond with conditions requiring:
   1. The setback of levels 4 and 5 at its western interface to 13m from the western boundary.
   2. The provision of three visitor car spaces on site, not in stacker formation.
2. The proposal was also opposed by one objector. (review P784/2011). A previous mediation between parties resulted in agreement being reached to modify the Notice of Decision to Grant a Planning Permit in accordance with conditions detailed in an interim order of the Tribunal dated 30 May 2011 regarding conditions as part of review P1064/2011. This then led to the withdrawal of review P784/2011.
3. Council remains opposed to the removal of the two outstanding conditions in dispute. From submissions made by Ms Thomas I understand the key issues of Council are that.
   1. Does the proposed building provide a suitable transition in building form between the six storey form at Burnley Street and the residential form west of the site in Murphy Street?
   2. Is there a need to provide on site visitor parking?

Does this proposal provide an adequate transition between its Burnley Street and Murphy Street interfaces?

1. Ms Thomas acknowledged that Council accepted the proposed building adequately addressed amenity to the adjoining property at 54 Murphy Street. She submitted that Council was concerned that the development did not adequately address the transition in neighbourhood character between Burnley Street and Murphy Street.
2. She also acknowledged that the overall height of the development was acceptable to Council it was simply the transition that was not. She submitted that what was needed was a greater "stepping down" of the building form. In doing so she indicated a more staggered, incremental stepping, as had occurred at the corner of Palmer Street and Burnley Street provided a greater separation between upper levels and the adjoining property to the west.
3. The critical question here is not necessarily if a different transition is needed but whether the proposal provides an adequate transition. Council's local policy at Clause 22.10 - 3 directs that a development should "use massing or articulation or changes of surface treatment or a combination of these to relate taller buildings to the scale of their surrounds and to diminish visual bulk."
4. In this instance I am satisfied that the proposed design response that includes a three storey element to Murphy Street that has a strong horizontal emphasis with recessed fourth and fifth storey can achieve this transition so that the dominance of form facing Murphy Street will be the three storey form, transitioning the form between Murphy Street and Burnley Street.
5. As Mr Sheppard noted, the alteration proposed by Council will not make the upper levels disappear or nor is it required. The effect of the condition is that the sixth, upper level will become more exposed to Murphy Street. I do not see this is a more desirable outcome. More importantly I do not see it as a necessary design alteration. I find the building does adequately step down from its six storeys at Burnley Street and uses appropriate tools to reduce the bulk of the form so that it can transition from a larger form in Burnley Street to a residential form in Murphy Street. This is not a traditional, wedding cake tiered stepping, but rather a more considered three dimensional recession of the building from as it will be read from Murphy Street. I find this recession a considered and respectful design approach to the street and one that can lead to a more sculptured and elegant building form than simply stepping a building from in a wedding cake style as occurs in the Palmer Street building. Further I note that the issues debated at the Tribunal hearing about the Palmer Street building, were not so much whether the design of the steps was appropriate but whether the recessed upper level could be sustained.
6. I therefore will remove condition 1n) as identified in the tribunal orders of 30 May 2011.

Is there a need to provide on site visitor parking?

1. Ms Thomas submitted that Council acknowledged that there was available on street parking in the area and that this was more a matter of principle that visitor parking should be provided in accordance with local policy 22.10-3.10.
2. The local parking policy requirements replicate those of ResCode for parking in residential developments. I am aware that in both the ResCode provisions and Clause 52.06 I must have regard to whether a waiver can be considered based on the availability of a range of issues including the provision of other transport options, the provision of on street parking and the likely demand for parking on site. It is not for the Tribunal to ignore these considerations on the basis of a principle that is sought to be upheld by Council.
3. Mr Mensforth's evidence was clear that there is adequate available on street parking near the site and there are other transport options available in the area. Providing three spaces in the basement would therefore have very limited use for visitors. It would also require substantial changes to the basement parking provision, to the extent that the development may not be viable. On balance of the limited benefit of providing the visitor parking in the basement against the likely costs to the development I find no need to provide the visitor parking in the basement. I will therefore direct that Condition 1n) in the interim order be deleted.