Victorian Civil and Administrative Tribunal|2008-07-02|Before: Mr P

Cremorne Corporation Pty Ltd v Yarra CC [2008] VCAT 1202 (2 July 2008)

Yarra Planning Scheme; Application under Section 79 of the Planning and Environment Act 1987 (the Act) against a failure to determine the application within the prescribed time; Business 1 zone and Mixed use zone; Heritage Overlay affects part of site; Mixed use development comprising 117 dwellings and retail space; 10 storey building; Urban design; Impact on heritage significance; Car parking layout, Local traffic impacts; Internal amenity; Setbacks from neighbouring commercial site likely to be redeveloped.

Pursuant to clause 64 in schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting plans by Fender Katsalidis Architects numbered TP00I, TP100 - TP110 Rev A, TP111, TP112, TP201 - TP204 Rev A and TP205 as the permit application plans.
The decision of the Responsible Authority is set aside. In permit application PL07/0876 a permit is granted and directed to be issued for the land at 243-249A Bridge Road and 34 Hull Street, Richmond. The permit will allow the demolition of existing buildings and associated structures, construction of a ten storey mixed-use development (plus three basement levels) for shops and up to 117 dwellings, use of land for shops and a reduction in car parking pursuant to the Yarra Planning Scheme generally in accordance with the endorsed plans**.** The permit must contain the conditions in Appendix A.

Mr K Fender, Project Architect, Fender Katsilidis Architects

Mr C Butler, Traffic Engineer, Cardno Grogan Richards.

Mr M Sheppard, Urban Designer, David Lock and Associates.

Mr B Raworth, Heritage Consultant, Bryce Raworth and Associates.

Mr B McGauran, Architect/Urban Design Consultant, MGS Architects.

Ms A Johns, Solicitor, For Richmond Plaza Pty Ltd. Ms D Middleton, Mr S Germano, Mr K Moore and Mr R Cameron appeared in person.

Cremorne Corporation Pty Ltd has lodged an application for review against the Yarra City Council's failure to grant a permit within the prescribed time for the construction of a 10 storey building on a site measuring about 3516 square metres within the Bridge Road Activity Centre, Richmond.
After the application was lodged, the council subsequently decided that it would have refused the permit application on three grounds. In summary the grounds assert that the proposed height and bulk of the building is inappropriate having regard to the neighbourhood context and policies within the planning scheme; the height and scale of the proposed building would dominate the heritage place [HO310] which essentially comprises the shopping strip along Bridge Road; and the proposal would not contribute to the built form character of the surrounding area in a positive way taking into account various local policies. The residential objectors have similar concerns; however, they are also concerned about traffic, parking and other amenity impacts. The Richmond Plaza is concerned about the setback of the east façade and balconies, in that it does not provide for an equitable sharing of the development opportunity on their site.

The site is irregular in shape with a frontage of about 22.5 metres to the north side of Bridge Road, a depth of about 100 metres that extends through to the south side of Hull Street, to provide a secondary frontage of about 5.5 metres. Access to the site is also possible via laneways that extend along the west boundary, off Hull and Bosisto Streets, and along the east boundary, off Bridge Road.
Although the site's frontages measure 22.5 and 5.5 metres, the central part of the site widens considerably to about 55 metres. The site is occupied by a number of buildings including a shop that is setback about 10 metres from Bridge Road, as well as warehouse buildings which partly abut the side and rear boundaries. The buildings are not of heritage significance.
The site forms part of the Bridge Road shopping strip which is, by and large characterised by Victorian shop buildings, mostly of 1 and 2 storey height, with the occasional 3 storey building. The area to the north is characterised by low to mid rise development, between 1 and 3 storeys, that is mainly used for residential purposes.

The proposed development encompasses a 10 storey building over 3 basement levels of car parking [282 spaces] accessed from Hull Street.
The lower and upper ground floor levels, including a mezzanine area, are to provide for about 3550 square metres of retail floor space with the nature of the tenancies as yet undefined, although Mr Pitt said the applicant would agree to a condition that this area not be used as a supermarket. The remaining above ground levels would provide for up to 117 apartments, comprising a mix of 1, 2 and 3 bedroom accommodation, with open space provided in the form of balconies.
Entry to the residential component is to be from a laneway adjacent to the east boundary off Bridge Road and the car parking levels via lifts. The applicant has also agreed to allow lift access to the residential component from within the retail areas. Loading and unloading is to occur in a designated area off the west side of the building with access via two laneways, one off Hull Street and the other from Bosisto Street.
The building has been designed so that the height steps up from both the Bridge Road and Hull Street frontages, which will have a scale of about 3 storeys, to mid-rise levels of about 6 storeys which progressively step back, with the highest 10 storey component located within the wider central section. There are some cantilevered balconies on levels 3 and 4 that project into the 11 metres setback of these levels. We mention these given the nature of the concern raised with respect to heritage matters.
The architecture is strikingly modern, particularly the Bridge Road façade and the upper 3 levels of the tower which are characterised by feature timber elements, randomly positioned to create a bird's nest type of effect.

Under the planning scheme, the site is partly zoned Business 1 and partly Mixed Use. A permit is required under the zone provisions for the construction of buildings and works. Shop and dwelling are as-of- right uses for which no permit is required in the Business 1 zone, however, a permit is required for "shop" in the Mixed Use Zone.
The front part of the site; that is up to about 42 metres from Bridge Road; is also within the Heritage Overlay. A permit is required under this overlay for the demolition of the existing buildings, the construction of new buildings and works. There are a range of matters which must be considered pursuant to the decision guidelines including the impact on the significance and character of the heritage place, particularly, in terms of the location, appearance, height and bulk of the new development.
Other permit triggers in this case include the provisions of clause 52.06 for car parking. Bicycle parking requirements are at clause 52.34.
General decision guidelines at clause 65 also require consideration to be given to other matters such as the purpose of the zone and overlay, orderly planning; the interface with other zones; and the impact on amenity.
There is a raft of planning policies that are in some way applicable to the consideration of this proposal. These were comprehensively set out in the officer's report for the responsible authority and in Ms Ring's report. We do not propose to repeat all of that detail here; rather we will refer to planning policy as appropriate.
We were also referred to Amendment C84, a major review of the MSS and local policy. The amendment has been the subject of a panel report. Specifically, the panel rejected the inclusion of references to "benchmark" heights of 5 to 6 storeys for development on strategic redevelopment sites. The amendment has not yet been approved.

The key issues in this case are:
- Site suitability and direction given by policy.
- Acceptability of the height and bulk from a heritage and urban design viewpoint.
- Interface with Richmond Plaza
- Internal amenity
- Car Parking
- Traffic
- Loading
- Construction Management

The owners of the Richmond Plaza shopping centre, which has a partial abuttal to the site's east boundary, and a number of local residents, oppose the proposal. The Richmond Plaza is primarily concerned about the adequacy of the setback to the common boundary, and whether it provides for an equitable outcome in terms of the future redevelopment potential of its own site.
The residents share the council's views about the height and bulk of the building; however, they also have concerns about the impact on their amenity, particularly in terms of additional traffic, adequacy of the number of car parking spaces to be provided; the conflicts between pedestrians using the laneway and vehicles seeking to access the loading bay areas and disruption that would occur during construction.
It was asserted for the permit applicant that a permit should be granted. It was submitted that the site offers an excellent opportunity for a significant development within the Bridge Road Major Activity Centre and that planning policy provides strong support for the intensity of the proposed development. It was contended and that the height and scale have responded appropriately to the site, the heritage place, the neighbouring Richmond Plaza site and the surrounding area generally. It was also asserted that the amenity impacts are acceptable having regard to the context.

The starting point with cases like this is to look at the attributes of the site and the direction given by the planning scheme as to what type of outcome is envisaged.
There is no doubt that this is a good site for redevelopment. It is large. The buildings on it are of no particular value and despite being partly affected by the Heritage Overlay, no one took exception to their demolition. The site is well located within a large activity centre. The activity centre provides for a range of retail, commercial, service and entertainment facilities. It is well served by public transport. It is not surprising therefore that Bridge Road has been identified as Major Activity Centre under the Metropolitan Strategy Melbourne 2030. Further, the site is well located and accessible to central Melbourne.
In a strategic sense, the importance of sites like this are recognised in Melbourne 2030, which would classify this site as a strategic redevelopment site.
It is true that the site is not free of constraints. Not many sites are. There is a heritage overlay over the Bridge Road half. There are residential neighbours nearby. The frontage to Hull Street is not overly wide. The laneways provide both an opportunity for access, but there is a need to consider their amenity for future users and the impact that their use will have on the amenity of surrounding residents.
While we agree with Mr McGauran that these matters are "constraints", we do not accept that they are of such magnitude that they cannot be overcome through appropriate design, or that they create a formula that leads us to the conclusion that development on this site must be reduced to 7 storeys as advocated by Mr McGauran.
This is a good site, and after considering the evidence of Ms Ring, one that is not overly common. There are some sites in the activity centre that are substantial and have attributes making them capable of being redeveloped in an intensive way. The Richmond Plaza is one. However, they are not commonplace.

We have reviewed the strategic framework set out in both the State and local sections of the planning scheme. We are in no doubt that the Metropolitan Strategy as expressed in clause 12 of the planning scheme together with clause 14.01 provide a strong and clear basis for this site being redeveloped in an intensive way, particularly for housing. The council does not shy away from the proposition; albeit that it believes that the outcome can also be achieved within a building that is 3 storeys lower. In this regard, the MSS directs development that involves "change" to sites within activity centres and Mixed Use Zones.
While it is true that even with 7 storeys the site would make a meaningful contribution to the achievement of urban consolidation outcomes, good reasons need to be given if the possible yield is to be reduced. These reasons could include an unacceptable impact on heritage; the context; and the amenity of neighbours. However, these matters cannot be considered in isolation, without due regard to the outcome sought by policy with respect to the intensification of development in activity centres like this one.
An example of how this needs to occur was demonstrated in Mr Raworth's evidence. He indicated that a purist view of heritage issues would not support the introduction of a tower on Bridge Road. However, in coming to his conclusion that the 10 storey element is acceptable, Mr Raworth did not simply limit his consideration to heritage matters, importantly, he also took into account the strategic context. He took a balanced approach. This is appropriate.
Mr McGauran did not reach his conclusion in a vacuum. He also took into account the context and was up front in agreeing that the site is suited to accommodating a major redevelopment, even though a building of up to 7 storeys would still be substantially higher than the fine grain built form to the north. Ultimately we have not agreed with him, however, he also sought to consider "context" in terms of both the physical environment and the policies that will guide development in that environment.
We should start by saying that we consider the height of the building to be acceptable.

We begin our assessment of the physical context by reference to the precinct's heritage significance. In forming our view, we have taken into account the Statement of Significance[1] for this area which on the one hand describes the precinct as having:

... many double storey shops of diverse styles and varying degrees of elaboration which are remarkably intact above verandah level. ...

while on the other, the site is within one of the less intact parts of the precinct.

From a heritage viewpoint, Mr Raworth and Mr Lovell were in agreement that the tower element is sufficiently setback away from Bridge Road and is clearly designed so that it is not read as part of the Bridge Road streetscape of shops that is of significance to the heritage place. The 40m plus setback, which sees the tower element outside the area covered by HO310 and the contrasting design style, make sure of this.
Mr Lovell and Mr Raworth did disagree on 2 aspects of the proposal, the impacts of the façade to Bridge Road and levels 3 to 5 of the mid-rise element.
Mr Raworth agreed that it is the height of the proposed façade that is the problem, being higher than its immediate neighbours. He conceded that if the height were lowered, the contemporary design and its breadth would not be a concern. In considering this issue, we agree with Mr Lovell that the height and design of the façade are acceptable. Although taller than its neighbours, it is not significantly so, and it is within the range of heights that can be found along this part of Bridge Road. Bringing the façade to the street alignment is a positive aspect, reflecting the siting of the shop buildings of heritage value. The contemporary design is also appropriate - contemporary architecture that ensures it can be distinguished from the heritage fabric. We also agree with Mr Lovell that the raking back of the façade to achieve a lower height would not result in a form that responds appropriately to the parapet style facades, that is the planar form, of the buildings along the streetscape.
On reviewing the photomontages and after having the benefit of an inspection, we do not agree that the front part of levels 3, 4 and 5 is appropriate. The scale and continuity of single and double storey buildings is an important element of Bridge Road. It is important that the views up and down the street maintain this sense of height and openness toward the frontage. In our view, the cantilevered balconies would intrude unreasonably in to this setting, almost appearing to sit over the façade. This is not appropriate. Further, we remain unconvinced that the 11 metre setback to the building face at levels 3 and 4 is acceptable.
We consider that the appropriate outcome is to delete the cantilevered balconies, set levels 3 and 4 back 15 metres and introduce recessed balconies. We consider that the balconies to level 5 should also be set back to 15m but are otherwise satisfied that the 21m setback to the balance of this level is substantial and still provides for the notion of a stepping back of built form from Bridge Road.
Subject to these changes, we accept that the building as a whole would be satisfactory from a heritage viewpoint.

The appropriateness of the building from an urban design point of view needs to take into the context, both policy and physical. The policy context is clear enough; substantial increases in the intensity of development is to be encouraged in locations like this, subject to the design being appropriate having regard to heritage [as set out in both State and local policy], amenity and other matters set out in clause 19.03 in relation to the built form.
It was not disputed by Mr McGauran that this site can accommodate a substantial building. The residents agreed with this, although the suggestion that only a 4 or 5 storey building be allowed, as submitted by Ms Middleton, would be at the very bottom end of the scale of what policy demands of sites like this. Mr McGauran's 7 storeys may be more akin to a mid point, while we note the concession made by both Mr Lovell and Mr Sheppard that 10 storeys is about the maximum.
We are also mindful of policies such as those at Clause 21.05, one strategy of which is to:

Ensure that development above the prevailing height of the City's low-rise urban form is confined to sites and locations where a specific urban design benefit can be met

So how do we decide if the height is acceptable?
First, we need the acknowledge the principle set down in Rowcliffe v Stonnington CC[2] that mere visibility does not in itself mean that a development proposal is unacceptable.
1. If mere visibility becomes the test across metropolitan Melbourne, then it will be virtually impossible to construct buildings above the prevailing scale. This, in turn, would render it impossible to achieve the clearly stated urban consolidation objectives expressed in the Planning Scheme, objectives which Clause 11 requires us "to give effect to". The Tribunal rejects the notion that, because some of the buildings would be visible above the existing built form, they are therefore unacceptable. Rather, the test is whether the proposal is complementary to the surrounding area, and of a scale that can be assimilated without unreasonably disturbing the surrounding built environment.
Second, the policies at clause 12.01-2 set a clear direction for Principal and Major Activity Centres. This clause requires that planning "supports the role and function of the centre given its classification, the policies for housing intensification, and the development of the public transport network". Further, the outcome to be delivered by Major Activity Centres is the same as that for Principal Activity Centres in terms of having "the potential to grow and support intensive housing developments without conflicting with surrounding land uses". More specifically Major Activity Centres with good public transport links, like we this one has, are encouraged to "grow in preference to other centres with poor public transport links serving the same catchment". In contrast, the policy for lower order centres, such as Neighbourhood activity centres, provides more emphasis on new development "fitting the context" and "enhancing the character of the area".
The policy position demands that the opportunity provided by suitable sites in strategic locations should be optimised. This accords with the views of the tribunal in the Golden Ridge v Whitehorse CC (Mitcham Towers)[3] case.
1. However the reasons given for the decision in the Watsonia case articulate a number of important principles which should apply in assessing higher density residential development in activity centres. One principle is that it is necessary to have regard to the scarcity of opportunities for higher density residential development. Another principle is that sites having close proximity to transport services, being within an activity centre and having a limited residential interface, generally provide an excellent opportunity for higher density residential use. The reasons in the Watsonia case also establish that when an excellent opportunity exists, there is a clear strategic imperative to make the most of that opportunity.[4] This is so even if no structure plan exists for the activity centre.
Of course, this is not at all costs. Other matters, such as those that we go on to set out our views on, must also be considered.
Third, it is appropriate to look at the design result as a whole. The tallest component is centrally located on the site. The setbacks to both the heritage sensitive context of Bridge Road is over 40 metres while the setback to the residential hinterland further north is over 30 metres. The building then steps down to provide a transition in scale. This is a reasonable and balanced response to the imperative presented by policy for intensification and the need to respond to the lower scale, fine grain development to the north.
Fourth, we do not accept the proposition advanced by Mr Cameron that the building will affect key landmarks, such as the spire of St Igantius church. We agree that the spire is a landmark of some importance in the local context as is the clocktower of the town hall. Both are identified under Council's Landmarks and Tall Structures Policy (Clause 22.03-3). The policy recognises that:
- The profile and silhouette of new tall structures add to the interest of the City's urban form and skyline.
Under this policy, new buildings within the vicinity of these and other local landmarks must be designed to ensure these landmarks remain as the principle built reference.
We consider that the notion of protecting views to landmarks, as espoused by policy, does not however mean that every view needs to be preserved. Key or important views need to be carefully dealt with, not every incidental view. In this regard we note that none of the experts, including those called on behalf of the council, considered the impact on the spire to be an issue in this case. The spire can be seen from Bank Street, but this is not a key view. Rather, it is a view that is vulnerable from the impacts of even low scale development on this site and others. For example, the construction of a two-storey development on the vacant land (corner of Bank and Cameron Streets) would obstruct the views of the spire presented by Mr Cameron. There was also nothing presented to show that the town hall tower would be affected in an unreasonable way.
Fifth, there are no unreasonable amenity impacts in terms of overlooking, overshadowing or loss of daylight to the habitable room windows of dwellings.
Sixth, for reasons that we will set out later, the car parking and traffic impacts are reasonable given the context. The proposal will increase traffic in the area, however, it can be managed in a way to maintain public safety.
Seventh, the design incorporates specific urban design benefits we regard as consistent with Clause 21.05, such as bringing the building to the Bridge Road frontage, reactivating the use of laneways that in some cases are somewhat "dingy", and establishing a building that delivers an architectural quality that is of a high standard. There will be benefits to the public realm.
We agree with some of the criticisms raised by Mr McGauran about the sense of address to the building from Bridge Road and the liveability of some of the apartments. However, we are of the view that these matters can be dealt with by conditions.
The suggestion presented by Mr Fender to widen the laneway entry to the apartments is appropriate, and will overcome the "level" difference identified by Mr McGauran as a problem. The provision of lift access from the retail floors, as agreed to by the applicant, provides another access option to the apartments.
The corridors to be provided at a width of 1.8 metres [as agreed by condition] and the foyer widths are at the narrow end of the scale; however, ultimately we cannot conclude that they are unacceptable.
The applicant has taken on board Mr McGauran's criticism of some of the apartments that have bedrooms that rely on borrowed light. These are to be reduced in number with only a few, with a northern orientation to be kept. The overall percentage of these is low. We accept that they may not be everyone's cup of tea, but in a sense, they provide accommodation akin to a "bedsit" where the ability to partition off the sleeping area is provided. As noted by Mr Pitt, they will be priced accordingly, providing a more affordable housing option in what can only be described as a great location. Most of the apartments have been designed to receive direct sunlight at least for some part of the day.
Other amenity issues were raised, but in general, we consider them to be minor and capable of being resolved through conditions and the more detailed development of the plans which we accept is an on-going process in a substantial development like this.
The quality of the architecture is of a very high standard, with none of the design experts taking issue with it. We think it will contribute to the "complexity" and diversity of the built environment and may well become a valued landmark in its own right in the future, creating a worthy legacy for future generations. These are all outcomes contemplated under Clause 19.03. We ask rhetorically, is this undesirable within a municipality with a rich urban texture, where large tall buildings juxtaposed adjacent to the fine grain have in places historically formed part of Richmond's urban fabric?
All of this demonstrates that the principles set out in clause 19.03 have been dealt with in an appropriate way. Bearing this in mind, together with the site's attributes, location and the policy context that applies, we have formed the view that this building is acceptable. We understand that this may not accord with Mr McGauran's view of a natural order of height within the centre; however, we do not consider that this concept is compromised by this proposal.
Ultimately we have concluded that this building is of a high design quality, and although we have identified some changes, we do not think that this detracts from the overall merits of what has been presented.
We now turn to some more specific issues.

The council and Richmond Plaza argue that the east side setbacks proposed do not provide for an equitable sharing of development opportunities between the site and the Plaza's land. Essentially it was argued that a 4.5 metre setback to the edge of walls and balconies should be provided on this site, replicated on the Richmond Plaza site so as to achieve the desired 9 metre separation between dwellings, a concept that accords with some of the standards set out in clause 55.
The Guidelines for higher density residential development include the objective 2.6 which states:

To ensure areas can develop with an equitable access to outlook and sunlight.

Design Suggestion 2.6.1 under this objective is:

Consider the possible future development of adjoining sites and allow, as best as possible, or [sic] an equitable spread of development potential throughout the area.

Essentially, the above support the notion of equity with respect to the potential for sunlight access and outlook and that new development not unduly prejudice their availability to another site.
We have little doubt that the Richmond Plaza site is also ripe for redevelopment given its size, corner location and context. However, save for the balconies at the lowest residential level that come to about 1 metre off the common boundary, we are satisfied that the proposal has made enough effort to setback from its neighbour. As indicated by Ms Ring these balconies can be reduced so as to provide greater separation, to say 3.35 metres, like the levels above.
The notion of equity does not in itself mean equal. The reality is that expectations as to what can be achieved from site to site varies. For example, we do not apply the standards of clause 54 for the redevelopment of small inner suburban lots in the same way as they may be applied to a larger site. The site size, proportion and context all come into play.
What is to happen on the Richmond Plaza site is unclear. However, as this is a larger site, much wider than the subject site and having the added benefit of a corner location, we do not think that the development potential of the site would be unreasonably prejudiced by this proposal. There is plenty of room to move. Rather, the expectation that all sites contribute equally, as opposed to equitably, may well stifle the development potential of smaller, narrower sites. We do not accept that this is an outcome that is consistent with the intent of the objectives of the Guidelines for Higher Density Residential Development.

The proposal falls well short of the car parking rates required under clause 52.06. A permit for a reduction is sought. The amount of the reduction appears substantial, from 518 required to 282 provided. However, what must be realised is that the provisions of clause 52.06 specifically contemplate the possibility of a reduction. The provision of an empirical assessment of parking demand is one of the criteria, as is the availability of public transport. We would think that other matters such as the size of the apartments and the location within an activity centre, where shops and other facilities can be accessed without the need for a car are other relevant factors.
We have been presented with the assessment of 2 traffic engineers, Ms Dunstan for the council and Mr Butler for the applicant. They both agree that the number of spaces to be provided is acceptable based on survey data. We agree with them, as the parking rates they support have relatively common application.
In relation to the car park layout, we note that residents are to be separated from retail customers and visitors. A pay and display system is to be introduced which will avoid some of the problems foreseen by Ms Dunstan at the car park entry.
The ramp grade of 1:16 is acceptable. Although the Australian Standard requires 1:20, the difference between the two is negligible in terms of what a driver would perceive at the top of the ramp. The change in grade may however, have implications for transitional ramps and the possibility of reduced parking on the site. We do not accept that it is necessary to modify the grade.
Other matters can be dealt with by condition. These include the removal of two spaces to enhance circulation at Basement 3 and the provision of a mirror and window at the entry to assist with sightlines for drivers leaving the building. The design of the crossing and the traffic arrangements allowing access to the car park can be dealt with through the preparation of a Functional Layout plan.

There is no doubt that there will be a noticeable increase in traffic. However, the evidence presented by both traffic experts was that it can be managed and is acceptable given the context.
The applicant has agreed to implement improvements to the intersection of Hull and Bosisto Streets. Mr Rantino conceded that the evidence did not support the provision of similar works at Cameron and Bosisto Streets and therefore did not pursue this condition.

A large loading dock is proposed. It can accommodate a number of trucks at the one time. We note Mr Dunstan's assessment that the about 20-30 vehicles will need to be accommodated each day for the proposal, provided there is no supermarket.
While we understand Mr Moore's apprehension, the reality is that the area where the loading bay is to be provided has been used for this purpose and access to parking. The laneway on to which his property fronts has provided this access.
The number of movements is low. We do not foresee the need for queuing, except in extraordinary circumstances.
We are satisfied that the trucks to be used can negotiate the laneway and turn into and out of the loading bay.
The laneway off Hull Street has the benefit of a pedestrian path which provides separation and a point of refuge. We also note that entries to the dwellings off this laneway are recessed behind the footpath.
A condition will require the loading area to be secured after hours with a pull down barrier or similar.

Mr Germano raised concerns about the inconvenience during construction. We agree that this will occur. It is inevitable with a project like this. However, this short term inconvenience does not outweigh the overall benefit. The construction process and side effects can be managed and this commonly occurs through a Construction Management Plan. We see no reason why this should not be acceptable in this case.

We have decided that a permit should be granted. Although the site has some attributes that may be regarded as constraints, nonetheless it is a very big site within a major activity centre. It is ripe for redevelopment. The policy context supports a substantial development on this site.
We are satisfied that, save for some relatively minor changes; the height, scale and overall design of the building is acceptable.
It has responded appropriately to the heritage place, subject to changes to the Bridge Road frontage to levels 3, 4 and 5, generally as recommended by Mr Raworth, involving the removal of cantilevered balconies and replacement with recessed balconies and the setback increased to 15 metres. We accept Mr Lovell's evidence that the front façade is acceptable given the context and that the change suggested by Mr Raworth would not be beneficial.
From an urban design viewpoint, the proposed building generally fits the context, bearing in mind that the outcome sought to be delivered by policy is part of the context. The policy context clearly calls for a substantial development on sites like this in this type of location. The proposal has also responded to the physical context. In particular the height of the building steps up the height, away from the frontages, so that the 10 storey component is confined to the central part of the site, substantially setback from both frontages. This allows the taller component to be read as a recessive element.
With some changes, the residential component of the building would be provided with a satisfactory connection with and sense of address to Bridge Road [as suggested by Mr Fender] while other matters of internal amenity can be overcome, again with changes.
The evidence does not support Mr McGauran's view that the loading arrangements are unsatisfactory or that difficulties with the car parking layout and access cannot be overcome. Ultimately we find the number of car spaces to be provided acceptable. With some minor changes the car park layout will be acceptable and the loading arrangements will work satisfactorily.
Further, there was no evidence of unreasonable impacts due to factors such as overlooking, overshadowing or loss of daylight to windows.
While the site is subject to some constraints, nonetheless, we conclude that the design response has overcome them in an acceptable way.

During the course of the hearing, the parties were given the opportunity to comment on the council's draft conditions. We have finalised the form of the conditions taking into account what was said. This includes conditions agreed to by Mr Pitt which in some cases require changes to the plans, while in other cases, add to the obligations imposed on the owner/occupier of the land. We have also deleted some draft conditions that Mr Rantino said were unnecessary, or could not be justified in the circumstances.
We have decided to keep some draft conditions resisted by Mr Pitt. We will include a condition for a Green Travel Plan which we think, like other divisions of the Tribunal, is justified for a major development of this kind, where discounted parking rates have been applied. We consider the same applies to the conditions relating to the specification of ESD measures.
We have added a condition that says that the retail area must not be used for a supermarket, unless otherwise approved by the Responsible Authority. We are able to do this because most of the retail area is located within that part of the site zoned "Mixed Use" were "shop" is a permit required use. A condition limiting the size of vehicles to those that can be accommodated within the loading bay has also been included.
We have also included a requirement for a Functional Layout Plan to be prepared for the area near the car park entry given the need to modify footpaths, the vehicle access point and the possible need to assign priority for vehicle movements at the Hull Street/Bank Street intersection.
We have also made a number of changes, some of which are relatively minor but are nonetheless necessary to make the condition clearer in terms of the obligations to be met.

Demolition of existing buildings and associated structures, construction of a ten storey mixed-use development (plus three basement levels) for shops and up to 117 dwellings, use of land for shops and a reduction in car parking pursuant to the Yarra Planning Scheme generally in accordance with the endorsed plans**.**

Before commencement of the development hereby approved, plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans produced by Fender Katsalidis Architects numbered TP001, TP100 - TP110 Rev A, TP111, TP112, TP201 - TP204 Rev A and TP205, but modified to show:

Levels 3 and 4 to be setback no less than 15 metres from Bridge Road, with balconies recessed into the building rather than cantilevered; and the balconies to Level 5 setback not less than 15 metres from Bridge Road;
Increase setback from the eastern boundary to 3.35 metres at Level 1. No balconies to project within this setback;

That part of the land directly north of stair 2 at basement 1 level incorporated into a widening of the east laneway off Bridge Road and consequential reconfiguration of the retail area immediately above at ground level;

Provision of residential lobby at Ground Level;
The provision of a door to the pedestrian lobby on the north boundary;

The location of integrated art work (including the east façade to the court area adjacent to the laneway from Bridge Road);
Details of a proposed canopy over the residential lobby entrance;

All internal residential corridors to have a minimum width of 1.8 metres;
The junctions of corridors on the residential levels reconfigured for improved connectivity;
Reconfigure dwellings 108 and 115; 208 and 215; 307 and 312; 407 and 412; 507 and 510 so that all habitable room areas have access to external light and ventilation (this redesign may include these dwellings being incorporated into the more generously scaled adjacent dwellings to the east and west);
Details of public spaces including:
1. location behind the staircase to the court zone;
2. provision of a screen to secure the loading dock;
3. the area between the pool and gym zone;
4. the Hull St northern end of the pedestrian access route external to the double doors; and
5. the area behind the Bridge Road lift at basement level.

to increase visibility and surveillance and to eliminate possible places of concealment;

The specification and location of all storage units (all dwellings to be provided with a minimum 6 cubic metres of storage);

An area set aside within the property boundaries for pits, meters and essential services;
The specification and location of all proposed external plant and equipment (including roof top plant and equipment, carpark ventilation and individual air conditioning and hot water units). All plant and equipment must be screened to prevent views from the street and habitable room windows of nearby dwellings;
Provision of fixed screening to 1.7m high above finished floor level to the west facing terraces with direct view over 9m into the habitable room windows and private open spaces of the residences to the west. Screening to be no more than 25 per cent visually permeable;

A landscape plan and report prepared by a suitably qualified professional. The plan must be drawn to scale with dimensions and three copies provided. The landscape plan must show:
1. the location, quantity, name and mature size of all proposed plants;
2. details of all proposed design features outside and around the building such as paths, paving, lighting, irrigation system and fixed furniture; and
3. specification of the water retention and storage facilities.

A car parking allocation schedule to accord with the following rates:
1. one bedroom apartments @ 1 space per dwelling;
2. two bedroom apartments @ 1 space per dwelling;
3. three bedroom dwellings @ 2 spaces per dwelling;
4. balance of the spaces allocated for residential visitor and retail use;

or a suitable alternative to the satisfaction of the Responsible authority.

Detailed drawings of the proposed cross over to Hull Street ensuring pedestrian safety is maximized;
All car parking spaces to be at least 2.6m wide and 4.9m long unless adjacent to a blind aisle where car spaces must be wider to comply with Australian Standards or otherwise to the satisfaction of the Responsible Authority;
The ramp grade for the first 6m into the site as a 1:16 grade;
A notation that there will be no ticket machine or similar control within the entry ramp;

The installation of a convex visibility mirror (for exiting vehicles to the west) and the removal of cut out /transparent section of wall for a distance of 2.5 metres into the site between the car parking access and the pedestrian access way to the east.

The corner locations on ramps between Basement Level 2 and 3 and between Basement Level 3 and 4 to provide for simultaneous passing of two vehicles, including appropriate splays and swept paths to accommodate an 85%ile and 99%ile vehicle;

Columns located adjacent to parking spaces located between 250mm and 1250mm from the open end of the parking spaces;

A vehicle priority identified by line marking and signs;
The details of all ramp grades;
Redesign the parking layout at Basement 3 to provide for a circulation aisle to the south of the goods lift;

Details of environmentally sustainable principles required by the Environmentally Sustainable Principles report referred to in Condition 6;

An updated schedule of all external materials and finishes (including colour and materials samples and coloured elevations/perspectives). The schedule must show the materials, colour and finish of all external walls, roof, fascias, window frames, glazing types, doors and fences;

The finished floor levels of every level and sub-level of the development, and
All new on-boundary walls labeled as being cleaned and finished to the satisfaction of the Responsible Authority.

All development must accord with the endorsed plans. Any alterations must be approved by the Responsible Authority.
Floor levels shown on the endorsed plan(s) must not be altered or modified without the written consent of the Responsible Authority.

Noise emanating from the development, including plant and other equipment, must comply with the State Environment Protection Policy N-I.

Details of the public artwork to be provided in the locations shown on the endorsed plans must be submitted to the Responsible Authority for approval. The cost of the public artwork is to be borne by the owner or occupier of the land. Except with the consent of the Responsible Authority, the artwork must be installed prior to occupation of any part of the development and then maintained to the satisfaction of the Responsible Authority.

Except with the consent of the Responsible Authority, before the plans are endorsed, a report prepared by a suitably qualified and experienced Environmental Sustainable Design expert must be submitted and endorsed to the satisfaction of the Responsible Authority. The report shall address the ESD principles proposed for the site including but not limited to, energy efficiency, water (retention, storage and use), waste and recycling, building materials, landscaping, crossflow ventilation, passive climate control through enclosed winter gardens/louvers and balcony overhangs, centralised floor boosted hot water system, energy and water efficient appliances and high thermal performance building skin.

Before the development hereby approved is occupied, either:
1. A Certificate of Environmental Audit indicating the land is suitable for residential use must be issued for the land in accordance with Section 53Y of the Environment Protection Act 1970; or
2. An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Section 53ZS of the Act that the environmental conditions of the land are suitable for residential use.
A copy of the certificate of environmental audit and/or statement, and the complete audit report and audit area plan must be submitted to the Responsible Authority.
The development works allowed by this permit must comply with the directions and conditions of any statement of environmental audit.
Prior to the occupation of dwellings a letter must be submitted to the Responsible Authority by an Environmental Auditor accredited with the EPA, to advise that all construction and remediation works necessary and required by an environmental audit or statement have been carried out.
Any handling and disposal of contaminated site soil must be in accordance with the requirements of any statement of environmental audit issued for the land, the requirements of the Environment Protection Authority and the Environment Protection Act 1970.

Prior to the occupation of the development hereby approved, a car parking management plan to the satisfaction of the Responsible Authority prepared by an appropriately qualified traffic consultant must be submitted to and approved by the Responsible Authority. When approved, the car parking management plan will be endorsed and form part of this permit. The car parking management plan must address, but is not necessarily limited to, nor must it include, all of the following:

The allocation of the car parking spaces to any office, retail tenancy and dwelling as the case may be, with any tandem parking spaces applied to a single tenant or dwelling; 2. The allocation of parking proposed to be used for the purpose of a commercial car park including information regarding duration of stay within the car park;

Information regarding parking fee structure and pay parking system;

The management of visitor parking spaces and security arrangements for occupants of the development, including the provision of an intercom system at the security entrance; 2. Provision for regular inspections; 3. Policing arrangements and/or formal agreements; 4. A schedule of all proposed signage including directional arrows and signage, informative signs indicating location of disabled bays and bicycle parking, exits, restrictions, pay parking system etc; 5. The collection of waste and garbage including the separate collection of organic waste and recyclables, all in accordance with the Waste Management Plan required by Condition 35, and 6. Details regarding the management of loading and unloading of goods and materials for the commercial and residential uses.
The car parking management plan must be implemented to the satisfaction of the Responsible Authority. No alterations may be made without the prior written approval of the Responsible Authority.

Before the shops and dwellings are occupied, a Green Travel Plan must be prepared to the satisfaction of the Responsible Authority following consultation with the Department of Infrastructure (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 address, but is not necessarily limited to, nor must it include, all of the following:
1. A description of the location in the context of alternative modes of transport and objectives for the Green Travel Plan;
2. Outline Green Travel Plan measures for the development including, but not limited to:
  1. household welcome packs - tram, train and bus timetables relevant to the local area must be included in the pack of information provided to purchasers and/or occupiers upon occupation of an apartment;
  2. bicycle parking and facilities available on the land; and
  3. monitoring and review.

Any existing vehicular crossings made redundant by the building and works depicted on the endorsed plans must be broken out and re-instated as standard footpath and kerb and channel to the satisfaction of the Responsible Authority and at the permit holder's expense.
The installation of a new vehicle crossing servicing the basement car park must be to the satisfaction of the Responsible Authority.
Any damaged road(s) and footpath(s) and other infrastructure adjacent to the development site must be reinstated to the satisfaction of the Responsible Authority.
The permit holder must not commence any civil infrastructure works on any Public Highway without obtaining official consent from the Responsible Highway Authority.

The area set aside for the parking of vehicles, together with the associated access lanes as delineated on the endorsed plan must:

be provided and completed to the satisfaction of the Responsible Authority prior to the commencement of the development hereby permitted; 2. thereafter be maintained to the satisfaction of the Responsible Authority;

be made available for such use at all times and not used for any other purpose;

be properly formed to such levels that it can be used in accordance with the endorsed plan; and 2. be drained and sealed with an all weather seal coat.

Except with the further consent of the responsible authority, the retail area must not be used for a supermarket.

Before the development is commenced or at such later time to the satisfaction of the Responsible Authority, the owner and /or occupier of the land must make a contribution to Council for the cost of traffic treatment works associated with the Hull Street / Bosisto Street intersection. The traffic treatment works are to include:
1. Two splitter islands on the east and west approaches to the Bosisto Street/Hull Street intersection to slow turning traffic and general traffic and to improve service to pedestrians in line with Council's Strategic Transport Statement at a cost of $10,000 each; and
2. Two DDA compliant pedestrian ramps at a cost of $2000 each;
3. A priority change at the intersection at a cost of $2000.
Before the development is commenced or at such later time to the satisfaction of the Responsible Authority, the owner and/or occupier must prepare a functional layout plan for works required at the Hull Street/Bank Street intersection and access point into the car park, to the satisfaction of the Responsible Authority. The plan must include measures specifying the priority for traffic movements and details of any changes to footpaths, crossings and any other council assets.
The cost of the design and construction of the traffic treatments and any modifications to council's assets required under conditions 21 and 22 must be borne by the owner and/or occupier of the land, to the satisfaction of the Responsible Authority.
Except with the consent of the Responsible Authority, any works referred to in condition 22 that are required by the Responsible Authority to be carried out by the owner and/or occupier of the land must be completed before the occupation of any part of the development, to the satisfaction of the Responsible Authority.
The eastern laneway accessed from Bridge Road must be reconstructed for its entire length, to the satisfaction of the Responsible Authority. All costs associated with these works are to be borne by the owner and/or occupier of the land. All works must be completed before the building is occupied, unless otherwise agreed to by the Responsible Authority.

Unless otherwise agreed to by the Responsible Authority, vehicles used in the loading and unloading of goods must not exceed a length of 8.8 metres, to the satisfaction of the Responsible Authority.
All vehicles must enter and exit the road network in a forward direction.
All loading and loading must be carried out within the confines of the land's boundaries.
The loading area must be closed and secured by the screen required under condition 1(k)(ii), to the satisfaction of the Responsible Authority.

The development must be provided with external lighting capable of illuminating access to each car parking space, motorcycle parking space, bicycle parking space, store, rubbish bin, recycling bin, pedestrian walkways, stairwells, lift, dwelling entrances and entry foyer. Lighting must be located, directed, shielded and of limited intensity so that no nuisance or loss of amenity is caused to any person within and beyond the site, to the satisfaction of the Responsible Authority.

Alarms associated with the commercial premises must be directly connected to a security service and must not produce noise beyond the premises.
The amenity of the area must not be detrimentally affected by the use or development, through:

the transport of materials, goods or commodities to or from land; 2. the appearance of any buildings, works or materials;

the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, or

Provision must be made for the drainage of the site, to the satisfaction of the Responsible Authority.
All piping and ducting, other than for drainage above the ground floor storey of the building must be concealed.

Prior to the completion of the building a waste management plan must be submitted for approval, to the satisfaction of the Responsible Authority. Once approved the waste management plan must be complied with. Collection may be undertaken by private contractors or by Council Service. When approved, the waste management plan will be endorsed and form part of this permit. The waste management plan must address, but is not necessarily limited to, nor must it include, all of the following:
1. Location of all waste collection points including recycling for the residential, office and retail areas;
2. Details of recycling services;
3. Frequency of collection , and
4. Location of collection points and details of collection
Rubbish, including bottles and packaging material, shall at all times be stored within the building and screened from external view. All waste collection and recycling collection to be undertaken by private contractors or Council Service between the hours specified in Council's Local Law No. 3.

The development, once commenced must be undertaken in a timely manner to the satisfaction of the Responsible Authority.
Before any development starts, a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed as evidence of its approval. The plan must address, but is not necessarily limited to, nor must it include, all of the following:

A pre-conditions survey of Hull Street (Bosisto Street to Bank Street), Bank Street (from Hull Street to Cameron Street) and the laneways to the west of the site from Hull Street and Bosisto Street; 2. Protection works necessary to road and other infrastructure (limited to an area reasonably proximate to the site);

Remediation of any damage to road and other infrastructure (limited to an area reasonably proximate to the site)

Containment of dust, dirt and mud within the site and method and frequency of clean up procedures in the event of build up of matter outside the site; 2. On site facilities for vehicle washing; 3. Methods for management of noise and general nuisance; 4. Site security; 5. Waste and stormwater treatment; 6. Construction program; 7. Preferred routes for trucks delivering to the site; 8. Parking facilities for construction workers;

Delivery and unloading points and expected frequency;

An outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services; 2. An emergency contact that is available for 24 hours per day for residents and the Responsible Authority in the event of relevant queries or problems experienced; 3. Traffic management measures, and 4. Details of any security door to the vehicle ramp and its management.
During the construction, the following must occur:

Any stormwater discharged into the stormwater drainage system to comply with EPA guidelines; 2. Stormwater drainage system protection measures must be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises enters the stormwater drainage system;

Vehicle borne material must not accumulate on the roads abutting the site;

The cleaning of machinery and equipment must take place on site and not on adjacent footpaths or roads; 2. All litter (including items such as dement bags, food packaging and plastic strapping) must be disposed of responsibly; and 3. All site operations must comply with the EPA Publication TG302192.

Except with the written consent of the Responsible Authority, demolition or construction works must only be carried out between: 7.00 am - 6.00 pm, Monday-Friday (excluding public holidays) and 9.00 am - 3.00 pm, Saturday and public holidays. No work is to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environmental Protection Authority's Guidelines on Construction and Demolition Noise.

This permit will expire if the development is not commenced within two years from the date of this permit. All development must be completed within five years from the date of this permit. The Responsible Authority may approve extensions to these time limits if requests are made within three months of expiry.

[1] City of Yarra Heritage Review Allom Lovell (1998)

[2] [2004] VCAT 46 (29 January 2004)

[4] [2004] VCAT 1035, at [64] - underlining our emphasis

Environment Act 1987

Cremorne Corporation Pty Ltd v Yarra CC [2008] VCAT 1202

At a glance

Court

Decision date

Before

Source

Judgment (96 paragraphs)

Cremorne Corporation Pty Ltd v Yarra CC [2008] VCAT 1202 (2 July 2008)

Parties

Legislation Cited (1)