[2006] VCAT 1070

The order of the Tribunal is that an application for a permit is refused. A permit must not be issued for this application.

Mr C.J. Canavan and Mr P. Connor, Barristers instructed by Holding Redlich.

1 This was an application pursuant to s 79 of the Planning and Environment Act 1987 against the failure of the Port Phillip City Council to determine an application for the construction of a seven level building comprised of 11 home offices, 99 apartments, 124 carparks and a dispensation to the car parking requirements of the planning scheme at 226-242 Rouse Street, Port Melbourne.

2 At the commencement of the hearing a number of parties sought to be joined pursuant to s 60 of the Victorian Civil and Administrative Tribunal Act 1998 to these proceedings. There was no objection to these parties being joined and accordingly the Tribunal joined the parties.

3 In addition, there was a request by the permit applicant to substitute amended plans for the application plans. The amended plans had been circulated in accordance with the Tribunal's Practice Note and again there being no objection to the substitution of these amended plans the Tribunal allowed the substitution to take place. The amended plans TP01 through to TPA30 all Revision D. Mr Canavan also tabled a series of photo montages that reflected the more simplistic podium level finish as outlined in Mr McGauran's evidence and these were noted as being dated 7 February 2006. These effectively were plans TPA23 through to TPA30.

4 The review site is located on the northeast corner of Rouse and Stokes Street in Port Melbourne. The site is rectangular in shape with a frontage to Rouse Street of approximately 55.5m, a frontage to Stokes Street of approximately 40.4m and an overall site area of 2232m2. To the rear of the site along its northern boundary is a 3.6m wide right-of-way known as Church Street.

5 At the present time the review site is developed with a single storey brick warehouse building which varies in height between 6 and 7 metres and has a zero setback to Rouse Street but a setback to Stoke Street of approximately 3.6m. The setback to Stoke Street is used as a landscape buffer.

6 Effectively to the north of the review site is land zoned Residential 1 and comprised of one and two storey terrace and semi-detached dwellings. Immediately abutting the north side of Church Street are 74 and 74B Stoke Street which are two two-storey dwellings that have their open space areas separating them and abutting Church Street.

7 To the west of the review site is also Residential Zone 1 land and occupied by the St Joseph's Catholic Church and associated outbuildings. Across the road on the south side of Rouse Street are the Swallow and Ariel buildings which are two storey heritage buildings constructed in the Renaissance revival style and have been recently converted to apartments.

8 To the east of the site 222 and 224 Rouse Street are single storey terraced dwellings. However, approval has been given for the construction of a four level building containing eight dwellings on the sites. The Responsible Authority has informed the Tribunal that that project is unlikely to proceed. Further to the east at 216 Rouse Street is a warehouse building of similar portions to the review site and a permit has been issued for the redevelopment of that site with a six level building containing some 68 apartments.

9 Within this area are a number of redeveloped industrial sites that have been developed primarily as residential apartments with commercial areas located at the ground floor. Most of these buildings have been designed with a 'podium base' consisting of three levels located at a zero lot line setback and the upper levels are generally set back around 5m.

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A basement level containing car parking, storage and other facilities.

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The ground floor level which provides for a total of 11 home offices facing Rouse and Stokes Streets with pedestrian access directly off the street. A substantial component of the ground floor is set aside for car parking and storage purposes. Vehicular access to the car park is off Rouse St.

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A mezzanine level containing 11 dwellings associated with home offices at street level and car parking.

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The proposed first and second floor levels have essentially a similar floor plan with setbacks to the street frontages generally being zero with the exception of the courtyard design element located off Church Street at the rear approximately mid-point along its length. There are approximately 24 dwellings located on each of Levels 1 and 2.

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Levels 3, 4 and 5 also have identical floor plans. The building at this level is set back approximately 5m to all three interfaces with the exception of the terraces which intrude into the setback areas. The balconies of Levels 4 and 5 have a curvilinear design with a lightweight material treatment. Seventeen dwellings are located on each of the top three levels.

11 Mr Canavan provided a helpful summary of the proposed accommodation as follows:

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7 x 1 bedroom units;

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39 x 1 bedroom plus study units;

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50 x 2 bedroom units; and

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14 x 2 bedroom plus study units.

In addition a total of 124 car spaces and 110 bicycle storage racks are proposed.

12 The building has been designed in three design elements consisting of the base, the mezzanine or middle level and the top. The base has a strong horizontal element while the middle consists of a strong rectilinear form, featuring masonry and/or glazing on all street frontages. The top of the building is a very lightweight material pallet and has a curvilinear balcony treatment. Glazing predominates the top three levels.

13 The review site is zoned Mixed Use under the Port Phillip Planning Scheme. Within the Mixed Use Zone a permit is required pursuant to Clause 32.04-5 to construct two or more dwellings on a lot and for office use.

14 As this proposal is greater than four storeys the provisions of Clause 55 do not apply in the consideration of this application.

15 Car parking requirements are set out pursuant to Clause 52.06-1 which generally requires two car spaces per dwelling to be provided and 3.5 spaces per 100m2 of net office floor area to be provided. A dispensation may be given in relation to these requirements.

16 The review site is also covered by a Design and Development Overlay DDO1-2a. Pursuant to Clause 43.01-1 a permit is required to construct buildings and works on land within a Design and Development Overlay. The relevant purposes of the Design and Development Overlay include 'identifying areas which are affected by specific requirements relating to the design and built form of new development'.

17 The review site falls within Area 2a of the Table to Schedule 1 of the DDO. The relevant design objectives of Schedule 1 include:

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To encourage a built form that responds to the area's significant development opportunities at the same time as respecting those elements that make this area special and distinct from other parts of the municipality such as its seaside ambience, open sky views along Bay Street between Rouse and Beach Street and low rise built form at the street frontage.

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To achieve a built form that responds to the existing characteristics of Port Melbourne (which include the diversity of lot sizes, built form, design features and the complex grain of the urban fabric).

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To achieve an acceptable balance between the opportunity for increased built form, bulk and height and maintaining a reasonable level of residential amenity.

18 The specific design objectives for buildings and works suggests that the design objectives are satisfied if they do not exceed the preferred maximum height specified in the table to the schedule or setbacks are not less than setback distances from the boundary specified in the Table to the Schedule. The Table to Schedule 1 for Area 2a is as follows:

Development is consistent with the traditional low rise, mixed character of the area's built form.

There is comparatively higher development that does not interrupt views of the CBD from Station Pier and the Bay or dominate the lower scale setting of the remainder of Rouse St.

The foreshore including associated bicycle and pedestrian paths, and to Bay Street and Rouse Street enjoys good solar access in mid winter.

19 Variations are possible to the preferred maximum heights and setbacks with the Responsible Authority able to consider exceeding the preferred maximum height up to the absolute maximum height where it can be clearly demonstrated that the proposed development will continue to meet all the relevant design objectives, achieve all the outcomes specified in the Table to the Schedule and not result in any additional detriment to the amenity of any surrounding public realm or private residential areas as a result of the increased height.

20 In terms of setbacks a permit may be granted to vary the setback distances from the boundaries specified in the Table where it can be demonstrated that the variation will:

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achieve the design objectives;

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be consistent with the context of surrounding urban form.

21 The Schedule also includes building design objectives which states inter alia:

Building and works are considered to meet the design objectives for building design in the following requirements, as appropriate, are met:

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In all areas, the design of buildings should:

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provide direct access from the footpath with minimal change of level;

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incorporate provisions for visual 'interaction' between ground floor activity and pedestrians, and

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avoid half-basement or ground floor car parks at a street frontage.

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In Beach, Rouse and Bay Streets between Graham and Rouse Streets, the floor to ceiling heights at ground are a maximum of 4.5m or capable of accommodating a future change of use to retail or entertainment, except for Beach Street between Johnston and Pickles Street.

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The design of lower levels (ground to third storey) integrates successfully with (and could interpret) traditional building forms in Port Melbourne by including:

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a predominantly masonry style with 'punched' openings and articulated wall surfaces.

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The design of buildings above three storeys is in a contrasting, 'lighter' style of design, including:

s

a stepping back of upper levels on frontages to all street frontages and lanes;

22 Thus, it can be interpreted that what is being sought to be achieved by the DDO1-2a policies is the development of buildings with a theme that provides for a podium or base level of approximately three storeys in height and a recessed upper level.

23 The review site is also affected by two other Overlays, a Development Contributions Plan Overlay and an Environmental Audit Overlay. However, these Overlays are not determinative in the consideration of this application.

24 The Responsible Authority in a detailed submission outlined its concerns which it summarised as being:

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Urban design response.

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On and offsite amenity impacts.

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Car parking.

and as a consequence considered the development an overdevelopment of the site.

25 This hearing was conducted over a number of days with evidence being called from a number of experts and submissions made by a number of the parties including the resident objectors living nearby the review site.

26 The Tribunal has considered all the material presented to it together with the evidence provided at the hearing in determining this application. After the hearing the Tribunal carefully inspected the area and the surrounding area, noting the developments that have taken place recently or under construction nearby and existing development.

27 All of the material presented to the Tribunal has been retained on the Tribunal's file. It would be an injustice to summarise the submissions made by the parties and the experts in this proceeding. Submissions made by the objectors were carefully considered and the Tribunal was impressed with the presentation quality of these submissions. As mentioned above, all matters were taken into account in reaching the Tribunal's decision.

28 In the Tribunal's view the following are the key issues that need to be addressed in determining this matter:

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How does the proposal respond to the policy context of the Port Phillip Planning Scheme particularly in respect of urban design issues?

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What are the amenity impacts or outcomes both onsite and offsite?

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Is the level of parking provided acceptable to service the proposed use?

29 As Mr Canavan submitted there is a 'surfeit' of policy support for the redevelopment of this land for a more intensive use, particularly one that integrates commercial and residential uses.

30 In addition, this location has detailed policy frameworks in the form of the DDO1-2A to assist guide the future development of this area. To that extent the observations of Member Komesaroff in Poulakos v Port Phillip City Council [2004] VCAT 1369, are appropriate, where the Tribunal considering an application nearby stated at paragraphs 57-62:

57 This case does raise the usual tension between a planned new character for an area and respecting historic form that has made the area special.

58 When the drafters of DDO1 created higher building envelopes, by multi layered sub schedules, in order to revitalise, populate and intensify the area, they also planned up to six storeys on the south side of Rouse Street, notwithstanding the lower finer scale Victorian heritage dwellings which they knew existed there.

59 The municipal planners also altered the zoning to Mixed Use, which adds expectation of substantial change to built form and residential amenity than if this were a normal residential zone.

60 After so much effort has gone into planning scheme amendments, the principles of DDO1(2a) should be implemented if both possible and reasonable.

61 As I said in Treloar v Bayside CC, [2001] VCAT 250

It is a waste of human energy and skill for time to be expended on drafting, testing and adopting specific policies for a particular centre ... and for that effort to then be ignored ... later. How much ink, how many reams of paper and how much human effort must continue to be wasted if such exercises are rendered futile?

62 But that is not to say such implementation can go ahead regardless. The micro amenity impacts such as bulk, massing and overshadowing render it necessary to scale the proposal back in parts, particularly as the planning scheme itself seeks setbacks from rear laneways.

31 This Tribunal agrees with the above observations. In this case there is essentially unanimous agreement between the parties that this site and location represents an opportunity to achieve the policy objectives of the Port Phillip Planning Scheme. The real question is how well does this proposal do that in terms of its specific design response, to the opportunities and constraints presented by the site and location?

32 As mentioned earlier the DDO1-2a policy generally provides for a podium level to be provided with a preferred height of 10.5m (3 storeys). It is acknowledged that the provisions of the DDO1-2a also allow an absolute height of 19.5m.

33 Clause 43.02 of Schedule 1 under Section 2 Buildings and Works under the heading "Height" provides that 'the preferred maximum height may be exceeded up to the absolute maximum height ... if the proposal meets all the relevant design objectives and achieves all the outcomes specified in the Table to this schedule and will not result in any additional detriment to the amenity of surrounding public realm or private residential areas as a result of the increased height'.

34 It is noted that the site adjoins an area which has the DDO1-4 Overlay to the north. The DDO1-4 provides for a podium level that under its provisions has a preferred set back between 3-8 metres to a preferred height of 9m.

35 Thus, while it is true the zone and DDO-2a Overlay are anticipating change, this to some degree needs to be tempered by the recognition this site is located, insofar as the northern boundary is concerned, at the interface with a more sensitive sub-area.

36 This sensitivity is verified by the inspection undertaken by the Tribunal of that area. The Tribunal found that dwellings located to the north of Church Street to be generally well maintained and in fact some had been recently upgraded. It did not appear to the Tribunal that this was an area likely to undergo massive redevelopment within the short-term.

37 Simply the opportunities provided by large single owned or occupied holdings of land available for redevelopment, such as the review site and many of the others recently developed sites, is not present in the area to the north of the review site.

38 The Tribunal notes the objectives of the building design section of the DDO1 which includes:

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Floor to ceiling heights at ground level are a minimum of 4.5m or capable of accommodating a future change of use to retail or entertainment.

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Design the lower levels (ground to third storey) to integrate successfully with and (could interpret) traditional building forms in Port Melbourne by including:

s A predominantly masonry style with punched openings and articulated wall surfaces.

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The design of buildings above three storeys is in a contrasting "lighter" style of design including:

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A stepping back of upper levels on all frontages, to all street frontages and lanes.

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Heavy articulation in plan form and massing and in front and side elevations to provide a varied skyline and avoid monolithic tower or slab block forms and ...

39 In this proposal the replacement building provisions do not assist with the consideration of this application.

40 Mr McGauran's evidence was essentially that the proposed podium level particularly at the north and north-western end of the review site was not significantly respectful of the existing character of the dwellings to the north and west of Church Street. This he suggested was required to respond to the 'fine grain' of the character of the area.

41 The lack of any transition along the northern edge for the podium level Mr McGauran submitted was not supported by the policy objectives nor a carefully considered design response of the residential areas to the north.

42 The proposed design on the northwest corner and along the north boundary (abutting Church Street) essentially provides for a zero lot setback up to four levels. While the floor to ceiling levels are relatively low the overall height of the wall on this northwest corner is approximately 11.5m. The northwest corner is in our view the most sensitive corner of the proposal in terms of its residential interface. The Tribunal is of the opinion that the height of the wall at this corner and along Church Street is unacceptable.

43 The Tribunal believes the increased height does result in increased detriment to the north and thus does not satisfy the test set out in the DDO1.

44 The Tribunal does not accept that policies, even though strongly supporting change in this location, go so far as to require the Tribunal to disregard this sensitive interface. We do not believe that the building should be dropped to single storey or such but we are of the opinion a transition between what may be expected to occur to the north under DDO1-4 and what can occur on this site would at least be a starting point for determining that transition.

45 The Tribunal is also of the view that the strong policy support that has occurred for development in this area has been quite successfully implemented. We believe the objective of the planning scheme to create a podium comprised of one level of a 4.5m in height with two levels of 3m in height above has been generally well embraced and now clearly forms a distinctive emerging character in this area. The Tribunal sees no reason to allow an increase from the preferred height of 10.5m and even see little reason why four levels should be permitted in this podium component of the development.

46 We believe the visual mass represented by the four levels at the corner of Church and Stokes Streets and along the Church Street abuttal is simply unacceptable in the context of this area.

47 While the Tribunal recognises that a two level home office has some merit we are concerned that the minimal floor to ceiling levels proposed in this development will result in a poor level of amenity for future residents.

48 The Tribunal is also of the view that the flexibility that is being sought by the Responsible Authority in the policies of the planning scheme have much merit as the changing nature of this area brings with it a demand for services to be provided nearby.

49 Thus, we are of the opinion that the flexibility of having a ground floor area level with a height of approximately 4.5m to facilitate flexibility in future use is quite appropriate.

50 In terms of other urban design issues we are of the opinion that the façade treatment of the building as generally shown in the perspectives table and including Revision E dated 7 February 2006 provide a simpler and more appropriate treatment for the building.

51 The Tribunal expressed concern with the quality of internal amenity to be provided for the future residents of these dwellings.

52 The Tribunal recognised that in developments within mixed use areas, not covered by the provisions of Clause 55 and located within a DDO that actively encourages higher densities, the amenity standard cannot be expected to be set at the same standard as suburban residential development.

53 In respect to this application a number of internal amenity impacts were raised by Mr McGauran. Some of these are design related decisions that we do not consider determinative in this application. These included matters such as provision of the lobbies to the home office, the absence of visitor waiting room areas, length of corridors, etc. The two critical internal amenity impacts in the Tribunal's view arise from the number of habitable rooms that rely on borrowed natural light and the privacy between dwellings fronting the internal courtyard.

54 On the question of borrowed light Mr Canavan referred the Tribunal to a decision of Member Hewet North and West Melbourne Association v Melbourne City Council [2002] VCAT 485 where Member Hewet stated at paragraph 47:

In the context of a proposal for a near central city mixed use, retail and residential apartment building, I do not think that it is either essential nor practical to require that all bedrooms in such a development enjoy access to natural daylight in order to achieve acceptable internal amenity standards. In forming a view as to what constitutes an acceptable standard, a level of judgement is obviously required and with respect to those dwelling units which do rely on some degree of borrowed light, my judgement in this matter is informed by the following considerations;

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The reliance on borrowed light is limited to bedrooms only and the balance of the habitable rooms in all of the dwellings enjoy access to natural daylight.

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The proportion of dwellings within the development which rely on borrowed light to a bedroom is 26%, which I do not regard as excessive.

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The layout of the proposed dwellings includes the use of open splays with sliding and glazed panels to all bedrooms relying on borrowed light and this provides the opportunity for occupants to integrate the bedrooms into the living areas or to close them off from the living areas, depending on their own individual preferences and requirements. I consider this layout to be preferable to that of a "bedsit" apartment in which there is no opportunity to isolate the bedroom from the living areas, but which do not rely on borrowed light.

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Each dwelling unit has access to (albeit small) external private open space in the form of a courtyard or balcony.

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Based on Mr McGurns's evidence, the proposal achieves compliance with the relevant requirements of the Building Code of Australia.

55 In general the Tribunal agrees with the above comments however this application needs to be distinguished by the fact that:

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This is not a near central city location.

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The percentage of habitable rooms relying on borrowed light is higher.

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This site is bounded by three streets and with the proposed internal courtyard provides opportunities to natural light access.

Thus, this is not a site constrained in terms of access to daylight as one may expect on a mid-block central city site.

56 In this proposal the Tribunal has calculated around approximately 37 of the 110 dwellings have bedrooms or study/bedrooms equating to 34% of the dwellings relying on borrowed light. In addition in excess of a further 16 studies rely on borrowed light.

57 As Member Hewet observed judgment needs to be made and in the Tribunal's view we have come to the opinion that the extent of rooms relying on borrowed light is unacceptable. The Tribunal has come to this view on the basis that this is a site that has the benefit of the street frontage abuttal (plus the central courtyard) and the opportunity to design apartments with direct access to sunlight has in our view been missed.

58 In addition the apartments are quite compact and in our view the internal amenity is compromised by having rooms with no direct access to sunlight.

59 Mr Canavan provided the Tribunal with a suggestion, if the Tribunal determined it necessary, with a reduction in the number of units and therefore a reduction in the reliance on borrowed light that would result from the redesign of combined units. We shall return to this issue later in these reasons.

60 The other major concern the Tribunal had was the separation distance and the orientation of habitable rooms around the central courtyard area. Privacy between the units and in particular between balcony areas, being the principal private open space for these dwellings, are located between 10 and 16.8 metres at a maximum and some have a zero separation.

61 Mr Govenlock's solution of sliding screens on the balconies while interesting and innovative in the Tribunal's view reinforces the fact that perhaps too much is trying to be squeezed on this site.

62 Finally, the Tribunal is also concerned with, as mentioned previously, the limited height provided from floor to floor. Each of the levels are approximately 2.8m floor to floor and allowing for a floor slab of approximately 200mm and for some other hidden services results in a typical floor ceiling level of about 2.4m. While this meets the minimum required height for the dwellings it does demonstrate the tightness in trying to achieve an extra level within the overall height limitation of this area.

63 External amenity impacts from this proposal are generally limited to the visual impact of the proposal when viewed from the surrounding street and in particular from the north being Church Street and the residences along the eastern side of Stokes Street.

64 On the Tribunal's inspection it was clear that many of the other recently constructed buildings that back onto Church Street provide a transition of their building mass from a low level along Church Street to higher level within the central part of the site.

65 On this proposal the visual mass of the building along Church Street in particular is quite large with wall heights up to 11.5m. This wall height needs to be compared with the typical two storey buildings along the northern side of Church Street on the east side of Stokes Street.

66 The Tribunal is also of the opinion that a considerate transition of the building bulk along the northern part of the review site would have resulted in part of the structure being set back 3m from Stokes Street as it approaches Church Street in a similar form as provided by the sketch by Mr McGauran. The Tribunal however, does not agree with Mr McGauran's suggestion that a setback is required at the lower level along Church Street or that there should be an active frontage along Church Street.

67 In the Tribunal's opinion the northern boundary of the review site adjacent to Church Street should have a height in the order of 9m, with a setback of 3m to a higher portion and then 5m to the higher portion (as required in the DDO1-2a) would appear to be quite appropriate. We acknowledge that the provision of a light court located somewhere along the centre of the abuttal to Church Street is a positive design feature.

68 Mr Hunt on behalf of the Applicant for Review provided evidence in respect of parking in the area together with an analysis of the likely parking demand of the facility.

69 Mr Hunt's analysis suggested 99 car spaces be allocated to the residential component, 11 car spaces be allocated to the home office and 14 car spaces be available for visitors to the site resulting in a total of 124 car spaces which is the number provided in this proposal.

70 Mr Hunt submitted that the 14 visitor spaces are sufficient to meet the demands of the home office and visitors parking. Mr Hunt submitted that an empirical analysis of visitor parking in the area of a similar development e.g. Beacon Cove, resulted in a peak visitor demand of 0.11 space per unit. This would equate to a peak visitor parking requirement of 12 visitor spaces for this proposal.

71 Thus, on Mr Hunt's evidence approximately 122 car spaces would be sufficient to serve the proposal and with at least 18 car spaces available

on-street in the immediate area he concluded that the parking availability in the area and onsite provision is adequate.

72 Objectors to the application raised concerns in respect of the analysis particularly by the fact that the surveys tabled as part of the evidence were undertaken during the summer vacation period. This is of course a two edge sword. Locations such as beach suburbs tend to become more popular during summer vacation periods and therefore as Mr Hunt indicated parking demand may generally be expected to be higher.

73 Nevertheless, the Tribunal is concerned with the level of parking provided. The first concern expressed by the Tribunal is that the area is an area undergoing rapid redevelopment and the full affects of parking demand from nearby developments would not be realised until those developments are completed and occupied. Thus, while an empirical study may show at present at least 18 spaces available it is difficult to estimate what change would occur when other developments that are also relying on some overflow parking on-street area are completed.

74 Another factor is that many of the apartments in this proposal are two bedrooms and have a dedicated study area. Thus, one can really anticipate a number of the internally provided visitor spaces being utilised by residents when allocated parking within the site is exceeded.

75 Thus, we are of the opinion that the parking for this proposal for the amount of units provided is inadequate.

76 The Tribunal is of the view that this proposal should provide for at least one car space for each of the residential units and 0.2 spaces be provided for visitors which in the Tribunal's view would also cater for customer parking for the home office. That is a minimum of 132 spaces should be provided for a proposal of this size.

77 As mentioned earlier Mr Canavan on behalf of his client submitted to the Tribunal the consolidation of a number of two dwellings into one dwelling and three dwellings into two dwellings. In fact the changes put forward resulted in a reduction of 13 dwellings from the development.

78 This option provides the Tribunal with a decision as to whether it should refuse the application outright, provide consideration of a conditional approval or alternatively invite the applicant for review to submit amended plans addressing the key issues identified in these reasons.

79 In the first instance the Tribunal dismisses the concept of a conditional approval as it would be too difficult to draft an outcome which would reflect all the reasons and concerns of the Tribunal and one might anticipate the outcome could readily end up before the Tribunal again in terms of endorsed plans being to the satisfaction of the Responsible Authority and the Responsible Authority trying to interpret the Tribunal's intent.

80 The Tribunal gave serious consideration to providing the applicant with the opportunity to amend the plans however the extent of changes considered necessary are too broad and in the Tribunal's view it would be inappropriate to require these changes. The changes would include the deletion of a level from the podium level, changes to the northwest corner of the intersection of Stokes and Church Streets, and the sought of changes identified by the applicant for permit themselves to respond to the borrowed light issues. Options such as lowering the building by excavating down we find an unacceptable outcome.

81 Thus, the Tribunal believes it must refuse this application and allow the applicant the opportunity to recommence the planning process having regard to the comments set out in these reasons.