CK Designworks v Melbourne CC [2011] VCAT 584

CK Designworks v Melbourne CC [2011] VCAT 584 - VCAT 2011 case summary — Zoe

[20]

CK Designworks has designed and applied for a permit to construct a building with shops on the ground floor, offices on the next 3 levels and 154 dwellings on the upper floors. A basement will contain bicycle parking and various services and plant. A 'mezzanine' floor above part of the retail level will contain further plant and plant rooms will also be located above the top residential level. Five of the upper floors, at evenly spaced intervals and on different elevations, are to contain large, well-landscaped communal gardens ("hanging gardens") within the floor plan. There will be two landscaped, private balconies at the top residential (penthouse) level. Above each of the communal balconies, the next five floors are to be progressively raked back as they descend towards the balcony garden. In addition to the hanging gardens, there will be small, triangular balconies scattered in a deliberately random pattern across the three residential façades.
Council has refused to grant this permit and CK Designworks has applied for a review of Council's decision.
Council refused to grant a permit on various grounds relating largely to the building's form. From these grounds and the various submissions and evidence we consider that the determinative issues are encapsulated by the following questions:
- Is the building too high for a site that is too small to provide upper-level setbacks above a lower-level podium?
- Are the projecting balconies detrimental to the public space?
- Would the building unfairly restrict the development potential of nearby sites or lead to an inevitable wall of towers along Russell Street?
- Is the relatively blank southern wall acceptable?
- Would the building cause unreasonable wind gusts at ground level?
- Should the building include loading bays?
- How to ensure that the constructed building achieves a high quality outcome?
We have concluded that the building would provide an innovative architectural contribution to the City, that its height is acceptable and that in the circumstances of its design and location, it is acceptable that it not include upper-level setbacks; also, that other contested aspects of its design are reasonable.

[21]

Council submitted that the combination of the proposal's height and lack of upper-level setbacks failed to comply with policy and would overwhelm the pedestrian experience, contending instead that it should be limited to 14 storeys. We have concluded that the building's height and form are acceptable.
Council relied on the evidence of its urban design expert, Mr Pryor, who interpreted policy to conclude that the proposal's combination of height and lack of podium would result in an excessive density and an unacceptably overbearing presence for pedestrians.
There are several strategies and policies relevant to this matter. Table 4 to Clause 21.05 identifies, by default, the site's locality as one where "substantial built form change is envisaged" and seeks to ensure appropriate spacing and offsetting of tall buildings. Clause 21.08-1 supports residential accommodation for a diverse population in an area of increased development intensity and mixed uses.
The objectives of Clause 22.01 include emphasising street corners and maintaining the "traditional and characteristic vertical rhythm" of the streetscapes. Policies of Clause 22.01 require building forms based on towers above podiums: podiums may be 35-40 metres in height and, above that, towers should be setback 10 metres from street frontages, with other setbacks required to ensure spacing between towers. Clause 22.01 also requires all development in any City block to not exceed, without justification, a plot ratio of 12:1[1]. We later discuss other aspects of this policy such as projections, wind and weather protection.
Clause 22.20 identifies Hayward Lane as a Class 3 lane, based on the absence of two or more of the four core values of lanes: through-block connectivity; active frontages; elevational articulation and views to other connecting lanes, streets or landmarks. Class 3 laneways "generally provide vehicular access to the rear of buildings for ... service requirements ...". In our view, this is very much the character of Hayward Lane. Policies seek to improve lanes generally [i.e. "encourage (Class 2 and 3 laneways) to show signs of Class 1 lanes"] and to use upper-level setbacks so that the lanes "have a sense of openness that reinforces a human scale".
Mr Pryor agreed that the effect of the policies, including ones relating to the spacing between adjoining towers, would effectively preclude any tower on this site, leaving only the podium level. However, he conceded that a building of 48 metres height[2] would be acceptable because of the proposal's innovative design (the 'hanging' gardens), the mitigating effect of these gardens' recesses, the preservation of the streetscape grain and the proposed ESD initiatives.
Leaving aside the question of whether the upper levels should be set back, we see no 'in-principle' reason to reject the building's height. There are several actual or approved buildings of almost the same or greater height within one block of the site: the 39 storey BHP building, corner of Lonsdale and Russell Streets; the 52 storey QV building across Russell Street; the 29 storeys of Celsius House, north-eastern corner of Hayward Lane and Lonsdale Street; an approved 50 storey building at 302 Russell Street; the Rockman's Apartments, of 33 storeys at 285 Exhibition Street and two buildings of 28 and 21 storeys to the site's east, in Little Lonsdale Street on the corners of Exploration Lane and Jones Lane respectively. Some of these buildings have podiums to some of their street frontages while other frontages or buildings do not. In the company of these buildings, the proposal's height would be a good fit.
Moreover, the relevant policies in Clause 22.01 are quite neutral on building height in the site's locality. The Planning Scheme provides neither encouragement for nor discouragement of taller buildings in this location. Strategies of Clause 21.08-1 merely seek to ensure that there is a strong distinction between the height of buildings in the CCZ1 and those in surrounding areas[3]. While we were referred to the DDOs of the Docklands area as reflecting a positive encouragement for height in that locality (and hence, we were told, the absence of such controls argued against high buildings on the subject site), it seems to us that those DDOs are designed to limit heights that might otherwise, in that locality, be even greater.
We endorse Mr Hutson's opinion that in views along Russell Street the proposed building would provide a reasonable visual foil to the taller and bulkier QV building almost opposite.
The question then becomes this: should the building be extended above 48 metres height, given that it cannot be effectively set back at its upper levels?
Relevant objectives are set out in Clause 22.01 and, as is usually the case, are understandably but unhelpfully vague, referring only to a building "establishing its own identity", having "sensitive and innovative design", taking account of "the experience ... for pedestrians" and reflecting "appropriate design standards" for public spaces, buildings and circulation spaces. In order to achieve these objectives, Council has framed many policies, many of which seem to us to be self-evident or uncontentious, e.g. buildings are to emphasise street corners, are to repeat the existing vertical rhythm of streetscapes, are to address both street frontages (if relevant), are to maintain important views. However, of particular relevance is Council's adoption of a 'tower-podium' typology that applies to all taller buildings on all street frontages.
The question of a policy requiring a tower-podium typology for all taller buildings was considered by the Tribunal in the Peddlethorp Architects decision[4], relating to the property at 113-115 Little Lonsdale Street. In its decision, the Tribunal observed:

[23]

We conclude that the same circumstances apply in this case and endorse the above opinion for the following reasons:
- The lower four levels of the building are to be treated in ways that differentiate them clearly from the upper levels and provide a more visually interesting elevation closer to the pedestrians' level.
- The building, with its innovative concept of the five hanging gardens, will create a dramatic element on this corner and, although it is not a corner of the same significance as the major City intersections, it will nevertheless provide good views of the building from close to middle distance along Russell Street and the hanging gardens will introduce a striking visual element that would potentially lift this building's contribution to the streetscape well above those around it.
- The lack of podium setback above 40 metres would, we believe, have no effect on nearby pedestrians and, in the context of a number of nearby tall buildings with little on no podium setbacks (existing or approved), provision of a podium or truncation of this building at 48 metres height would be, in our opinion, of little benefit.
- There are a notable number of nearby tall buildings that do not (or approved buildings that will not) have a podium on one or other street frontage, so that there is no clearly emerging building form of the podium-tower typology in this locality.
- Hayward Lane[5] presently has no desirable pedestrian qualities and the Celsius building, to the south, is a tall building with no podium to the lane; in any case, we do not believe that a pedestrian nearby in this lane would be able to differentiate between the proposed building and the 48-metre alternative.
We have great difficulty relating the policy allowing podiums to 35-40 metres, or Mr Pryor's concession of 48 metres height, with anything approaching a human scale. As we were advised during the hearing, this podium level was a continuation of the historic 132 ft building height that applied prior to the planning schemes[6]. It seems to us that such a podium height may create an attractive urban form if applied consistently in wide boulevards but we find it difficult to understand why it is considered to have any relationship with the human scale[7].
We also reject Mr Pryor's view that the 5:1 height-to-width ratio that applies to Class 1 and 2 lanes is a useful benchmark for assessing this proposal's effect on Hayward Lane. Mr Pryor considered a 48-metre high building without further setbacks to be acceptable. From the point of view of pedestrians using Hayward Lane, we believe that there would not be any noticeable difference between a 48-metre high building and this one. In both cases, the building would tower so much above a pedestrian's view that any perceived difference would be immaterial.
We accept Mr Hutson's view that, given other aspects of the building's design, there would not be any benefits to pedestrians if the building could be set back above the 40 (or 48 metres) height. While the lowest hanging garden would not provide the effect of a podium with set back tower[8], we do believe that the architectural treatment of the elevations below the residential level will provide an important visual differentiation of the lower elevations.
For several reasons we also place no weight on the policy seeking to limit the plot ratio of individual City blocks to 12:1, in part because of its clear lack of current enforceability and in part because of a lack of any apparent nexus between the height of buildings on any site and overall urban form outcomes. In some respects, this policy is similar to the control that planning schemes apply to retail floor space in business zones, where a schedule to the zone can limit the total retail floor space in a retail centre to a specified total. This leads to a first-come-first-served situation as early-mover owners can increase their floor space towards the cap at the expense of others who might delay action. Any such control or policy requires the Council to monitor the growing retail floor space. That action is missing in this case, as Council was not able to specify what the current development plot ratio for this block is, let alone how this proposal would affect it.
Furthermore, if the desired plot ratio is an average that is applied across the whole block, then one would expect some sites to exceed the desired ratio while the development of others would be less. The fact of this proposal exceeding the 12:1 ratio is therefore, of itself, irrelevant.
Finally, as noted above, we cannot see any clear nexus between this plot-ratio policy and any of the objectives of Clause 22.01.

[24]

Council argued that the small projecting balconies would exacerbate the building's overbearing presence. We have concluded that the balconies, due to their small scale and great height above the street, are both acceptable and beneficial to the overall design.
The balconies are small triangular devices, projecting 1.5 metres from the building's face, with a base of 2.2 metres and an area of 3 square metres. The architects have placed the balconies in an apparent random pattern across the three façades so that some dwellings have one, a few have two and some have none. Some balconies open off living rooms while others adjoin bedrooms. The lowest balconies are about 27 metres above street level. Mr Wyatt advised us that the balconies have an important function in collecting water from the building's façade, thereby assisting in the building's overall rainwater self-sufficiency[9].
Clause 22.01 is relevant. It contains a section dealing with projections over streets. The relevant policy states that proposed projections should be assessed against various design standards, including, importantly, this one:
- Open balconies, canopies, projecting cornices or other building elements should not overhang the lane unless they:
  - Follow a local pattern
  - Contribute positively to the character and safety of public spaces
  - Are discreet rather than prevailing elements of a building's design
  - Provide evidence of the building's occupation.
Mr Pryor considered that the balconies would be acceptable if at least partly recessed. He also considered that, with some reduction in their proportional numbers, they would be acceptable on the lower building that he had supported because their cumulative impact would then be less.
Mr Crowder proposed that the location of private balconies should be modified to ensure that they would always adjoin living rooms. We are not so persuaded.
It is clear that the balconies' placement is part of building's façade treatment, as their deliberately random pattern would create further visual interest across the building's façades.
We had difficulty in applying the four tests for projecting balconies in Clause 22.01[10]. Clearly, the proposed balconies do not fit a prevailing pattern, but then there are no examples, to our knowledge, of a prevailing balcony pattern in high rise buildings and this is to be expected, given the individuality of architectural treatments of such buildings. The balconies are too high to contribute to public safety and, in our view, would rarely if ever be occupied. We had great difficulty understanding how to apply the concepts of 'discrete' and 'prevailing' to any balconies. They would certainly indicate the residential nature of the occupancy of the upper levels.
With respect to the apparent randomness of the balconies' disposition across the three façades, we consider that this randomness, combined with the large number of balconies, actually creates a valuable degree of visual tension, and thereby greater visual interest, than could be ever achieved by placing them in a regular pattern. Rather, we view the visual effect of the balconies as a worthwhile, three-dimensional aspect of the building's façade and commend them for that.
We do not accept that the private balconies would be oppressive to pedestrians close to the building. In our view, pedestrians close to the building will not be aware of small balconies so far above, let alone feeling oppressed by them, and these balconies are so small that, to pedestrians further away, they will simply appear as part of the façade treatment.
We also do not agree with the suggestion that all balconies should be relocated to abut living rooms. If this is important, then all living rooms should be provided with balconies. On such a tall building, and with such small balconies, we do not consider that they would extend the dwellings' liveability to any useful extent.
We therefore conclude that the balconies provide useful support for sustainability principles, add significantly to the visual quality of the building's façades and would not have any detrimental effects for pedestrians.

[31]

Council objected to the proposed southern elevation, which will be largely blank other than for a raised patterning, on the ground that this elevation would lack visual interest. We conclude that subject to achieving an appropriate design, the southern wall can be quite sufficiently interesting to be acceptable.
The adjoining site to the south could potentially be redeveloped by itself or as part of an amalgamation of other sites to its south. The proposed building's southern elevation is to have a vertical recess ("cut out") in its centre, which will provide light to adjoining second bedrooms or bathrooms. The solid elevation to either side is to have a geometric pattern. This pattern would be slightly three-dimensional and be given colouring and further character with applied materials. We were shown examples of equivalent wall patterns on other buildings here and overseas. We were also advised that the shallow three-dimensional quality of the southern façade would allow it to incorporate water-catching channels to further support the building's ESD qualities.
Bedrooms adjoining the cut-out will also be provided with secondary access to light and ventilation, so that in the event of a future development abutting the southern elevation, they would still enjoy adequate access to light and ventilation. Because of the possibility that the cut out may be eventually built out, we agree with Mr Crowder that the fire rated windows be used in this location. We also agree with him that there needs to be a separate agreement regarding possible future construction on the adjoining site, so that owners are aware that the windows may be built over at some future time.
We note that the 'mural' on the southern elevation was critical to Mr Hutson's support for the proposal, though he agreed that there could be many acceptable solutions to the design of an appropriate mural. It seems to us that this wall offers the opportunity for a quite exciting piece of urban art.
We conclude that, subject to an appropriate mural treatment on the southern elevation, the lack of an in-the-round quality to the building is not critical. However, the quality of such a mural is critical and we have included a condition requiring any such mural to be subject to the satisfaction of Council.

[44]

As part of the consultant team an experienced architect and landscape architect, to the satisfaction of the Responsible Authority, must be engaged to oversee the design intent and construction quality to ensure that the design, quality and appearance of the approved building is maintained.
The development as shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.
Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
A schedule and samples of all external materials, colours and finishes must be submitted to the satisfaction of the Responsible Authority prior to the commencement of the development, excluding demolition. The schedule must show the materials, colours and finishes of all external walls (other than for the area of mural on the southern elevation), roof, fascias, window frames, glazing types, doors, balustrades, fences and paving, outbuildings and structures. When approved, the schedule will be endorsed and will then form part of the permit. All finishes and surfaces of all external buildings and works, including materials and colours, must be in conformity with the approved schedule to the satisfaction of the Responsible Authority.
Before any development (other than demolition) commences, a proposal for the mural on the southern façade must be submitted to and approved by the Responsible Authority. The proposal must specify the overall design, materials and detailing to be used. When approved, the mural specification and design will become part of the planning permit.
Prior to commencement of development, a scheme for landscaping and planting in connection with the proposed development, generally in accordance with the landscape proposal prepared by ERM (reference 0129344 RPT1, dated 23 February 2011), must be submitted to the satisfaction of the satisfaction of the Responsible Authority. The agreed scheme must incorporate water sensitive urban design features and be implemented prior to the occupation of the development, or as otherwise may be agreed with the Responsible Authority, and the landscaped areas must be subsequently maintained to the satisfaction of the Responsible Authority.
Prior to the commencement of the development hereby permitted, a suitably qualified consultant must undertake wind tests on a model of the approved building. A report detailing the outcome of the testing must be submitted to the satisfaction of the Responsible Authority and must also recommend any modifications which must be made to the design of the building to reduce any adverse wind conditions arising from the building's design in areas used by pedestrians, to the satisfaction of the Responsible Authority. The recommendations of the report must be implemented at no cost to the Responsible Authority.
Prior to the commencement of the development hereby approved (other than any preparatory earthworks or demolition) a Phase 1 Environmental Assessment must be submitted to the Responsible Authority indicating the extent and nature of any contaminated materials on site to the satisfaction of the Responsible Authority.

[51]

The owner of the property must enter into a Section 173 Agreement under the Planning & Environment Act 1987 requiring, in the event that development occurs on the abutting site to the south that encroaches on the southern windows, that owners of affected properties close off the windows to comply with the Building Code of Australia.
Prior to the demolition hereby permitted (other than as required to undertake the Phase 1 assessment referred to in Condition 9), the permit holder must satisfy the Responsible Authority that substantial progress has been made towards obtaining the necessary building permits for the development of the land generally in accordance with the development proposed under this permit and that the permit holder has entered into a bona fide contract for the construction of the development.
Prior to the commencement of the development, including demolition or bulk excavation, a detailed Construction and Demolition Management Plan must be submitted to and be approved by the Responsible Authority - Construction Management Group. This construction management plan is to be prepared in accordance with the City of Melbourne - Construction Management Plan Guidelines and is to consider the following:
- (a) public safety, amenity and site security;
- (b) operating hours, noise and vibration controls;
- (c) air and dust management;
- (d) stormwater and sediment control;
- (e) waste and materials reuse; and
- (f) traffic management.
Prior to the commencement of the development, the owner of the land must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act, 1987. The agreement must provide the following:
- (a) Liability and maintenance of those parts of the development projecting into airspace or sub-soil of land under the care and maintenance of Council and disclaiming any right or intention to make or cause to be made at any time any claim or application relating to adverse possession of the land.
- (b) Liability and maintenance of those parts of the development projecting into the air-space or sub-soil of land under the care and management of the Council, including provision, of an indemnity and comprehensive insurance cover against damage and injury resulting form the erection and use of the projection, to the satisfaction of the Responsible Authority.
- (c) Providing for the payment to the Council of one lump sum licence fee of such amount as may be reasonably determined by a certified practising valuer appointed by the Council for that purpose.

[54]

Prior to the commencement of the development, excluding demolition, bulk excavation, site preparation, soil removal, site remediation, retention works, footings, ground beams and ground slab, a report by an accredited professional must be submitted to the satisfaction of the Responsible Authority documenting the energy efficiency measures introduced into the building design. The performance outcomes specified in the report must be implemented prior to the occupation of the development to the satisfaction of the Responsible Authority.
Prior to the commencement of the development, a Waste Management Plan (WMP) must be prepared and submitted to the City of Melbourne - Engineering Services. The WMP must confirm that the waste collection area is sufficient to service the size of the development and also to specify the size of the truck required to determine if a permit is needed to access the lane. The WMP should also detail waste storage and collection arrangements and be prepared with reference to the City of Melbourne Guidelines for Preparing a Waste Management Plan. Waste storage and collection arrangements must not be altered without prior consent of the City of Melbourne - Engineering Services.
The minimum clearance to the underside of the proposed projection over Hayward Lane from the existing road surface should be 5.0 metres.
Except as otherwise agreed in writing by the Responsible Authority, the following requirements apply. The minimum clearance to the underside of the proposed projections over Russell Street and Little Lonsdale Street is 3.0 metres and the minimum setback from the adjacent faces of kerb should be 2.5 metres. Projections proposed to project beyond 2.5 metres behind the face of kerb should have a minimum clearance to the underside of 6.3 metres above the road surface. The maximum projection beyond the street alignment should be one tenth of the road width.
All projections should be drained to legal points of discharge in accordance with plans and specifications approved by the Responsible Authority - Manager Engineering Services.
All building plant and equipment on the roofs are to be concealed to the satisfaction of the Responsible Authority. The construction of any additional plant machinery equipment, including but not limited to air-conditioning equipment, ducts, flues, all exhausts including car parking and communications equipment, must be to the satisfaction of the Responsible Authority.
Any satellite dishes, antennae or similar structures associated with the development must be designed and located at a single point in the development to the satisfaction of the Responsible Authority, unless otherwise approved to the satisfaction of the Responsible Authority.
Mailboxes and newspaper receptacles must be provided prior to the occupation of the development, including an additional mailbox for the body corporate if and when the development is subdivided, to the satisfaction of the Responsible Authority.
All service pipes, apart from roof down pipes, must be concealed from the view of a person at ground level within common areas, public thoroughfares and adjoining properties.
The owner of the subject land should construct all necessary vehicle crossings and demolish all unnecessary vehicle crossings adjacent to the subject land in accordance with plans and specifications first approved by the Responsible Authority - Engineering Services.
The owner of the subject land will not be permitted to alter the existing footpath/road levels in Russell Street, Little Lonsdale Street and Hayward Lane for the purpose of constructing new vehicle or pedestrian entrances without first obtaining the written approval of the Responsible Authority - Engineering Services.
The footpaths in Russell Street should be upgraded and reconstructed in sawn bluestone together with associated works including the renewal and/or relocation of kerb and channel and the relocation of all services pits and covers as necessary at the cost of the Owner/Developer in accordance with plans and specifications first approved by the Responsible Authority; Manager - Engineering Services.
Prior to the occupation of the development hereby approved, a stormwater drainage system, incorporating water sensitive urban design, must be constructed for the development and provisions made to connect this system to Council's underground stormwater drainage system and, where necessary, upgrade the system to accept the discharge from the site in accordance with plans and specifications first approved by the Responsible Authority - Engineering Services.
No street tree adjacent to the site may be removed, lopped, pruned or root-pruned without the prior written consent of Council's Tree Planner.
Any requirement to temporarily relocate street lighting should be first approved by the Responsible Authority - Manager Engineering Services.
Glazing materials used on all external walls must be of a type that does not reflect more than 15% of visible light when measured at an angle of 90 degrees to the glass surface, to the satisfaction of the Responsible Authority.
This permit will expire if one or more of the following circumstances apply:
- (a) The development is not started within two years of the date of this permit; and
- (b) The development is not completed within four years of the date of this permit.

At a glance

Court

Decision date

Source

Judgment (67 paragraphs)

CK Designworks v Melbourne CC [2011] VCAT 584 (5 April 2011)

Parties

Legislation Cited (4)