CSTP Pty Ltd v Boroondara CC & Ors

CSTP Pty Ltd v Boroondara CC & Ors - [2009] VCAT 1078 - VCAT 2009 case summary — Zoe

[18]

Within 28 days of the date of this order the permit applicant must in writing advise the Tribunal, the responsible authority and other parties whether it is intending to accept the opportunity provided by the Tribunal to prepare amended plans to address the issues identified by the Tribunal in the attached Reasons (Attachment A contains a summary of the issues which the Tribunal consider need to be addressed by the permit applicant).
In the event that the permit applicant accepts the opportunity provided by the Tribunal to prepare amended plans, the permit applicant must:
- (a) Circulate to the Tribunal, the responsible authority, Vic Roads, the Director of Public Transport and the Boroondara Residents Action Group, three clearly readable, scaled copies of the amended plans incorporating the modifications to the application plans which respond to the issues identified in Attachment A, together with a statement in writing describing the changes from the previous plans and explaining how the changes respond to the issues identified by the Tribunal.
- (b) Advise all other parties in writing that amended plans and an accompanying report have been prepared and are available for inspection free of charge at the offices of the Boroondara City Council.
Upon receipt of the amended plans and accompanying report, the responsible authority must immediately make these documents available for inspection free of charge at the council offices.
Within 28 days of the date upon which the amending plans were circulated in accordance with direction 2 above, the responsible authority and the other parties may make further written submissions in respect of the amending plans. Copies of any such written submissions must be provided to the Tribunal and the permit applicant. Such written submissions must be confined to issues associated with the amendments to the plans.
Within 14 days of the receipt of any of the further written submissions referred to in direction 4 above, the permit applicant may make a written submission in response. Copies of any such response must be provided to the Tribunal, the responsible authority and the other party.
Any party may request a further hearing in respect of the amending plans within the timeframes specified above. The request should be accompanied by reasons supporting the need for such a hearing, and copies of such request must be provided to the other parties to the Application for Review. The Tribunal will otherwise decide the application in accordance with the submission made at the hearing and the further submissions referred to in these directions.
In the event that the permit applicant does not accept the opportunity provided by the Tribunal to prepare amended plans, the Tribunal will proceed to determine the application on the basis of the submissions, evidence and plans presented at the hearing.

[35]

The proposal to undertake a development of the Camberwell Railway Station has a long and chequered history. It is a proposal which has generated considerable public interest and debate and culminated in an eight day hearing before three members of the Tribunal, during which evidence from 14 expert witnesses was presented, in addition to extensive submissions from objectors to the proposal, the Council, the applicant, VicRoads and the Director of Public Transport.
The proposal has its genesis some time before 2002 when VicTrack, the owner of the Camberwell Railway Station and associated land, appointed a preferred developer to redevelop the land in the area generally between Cookson Street, Railway Walk, the western side of Burke Road and the eastern station pedestrian footbridge. Over the ensuing years, VicTrack's tender process to facilitate the station's development was placed on hold. The Council in response to concerns about the proposed redevelopment undertook a heritage review of the Camberwell Station which led to the introduction in 2007 of a heritage overlay to give effect to the identified local significance of the site. The Council also facilitated a process to prepare an urban design framework (UDF) for the station precinct. In 2008 the Council adopted a structure plan which recommended a "low scale" development of the precinct, an outcome which is at odds with an earlier 1993 Camberwell Junction structure plan upon which policies in the Boroondara Planning Scheme for the Junction and the Railway Station are based.
In November 2007 CSTP Pty Ltd, VicTrack's preferred developer for the site, applied to the Council for a permit to construct two buildings comprising dwellings, shops and offices, and an open plaza. The Council in April, 2008 resolved to refuse the application on 31 grounds.
In June 2008, CSTP Pty Ltd applied to the Tribunal for a review of the Council's decision.
Following the receipt of the application for review, the Tribunal conducted a number of directions which dealt with adjournment requests and other procedural matters. Because the Council refused the application without giving notice, the Tribunal directed that notice of the application be given. In response to the giving of that notice, the Tribunal received a large number of objections to the proposal. The Tribunal has also given directions with respect to the substitution and circulation of amended plans and the circulation of witness statements.
In broad terms the dispute about the proposed redevelopment of Camberwell Station centres on differing views about the interpretation and application of state and local planning policies and, more specifically, how state policies should be applied at the local level.
The Council and objectors hold the view that any development on or around the Camberwell Station must be low key and low scale in order to respect the cultural and heritage significance of the station and the character of the Camberwell activity centre generally. The applicant takes the view that a much larger development of the scale proposed in this application is capable of respecting the cultural and heritage significance of the site. The applicant also submits that State policy objectives to create a more sustainable urban form for metropolitan Melbourne in turn creates an imperative for sites in major activity centres close to public transport to be developed to a high level of intensity and scale.
We have concluded that, subject to changes which we discuss subsequently, the proposal strikes the correct balance between seemingly conflicting planning scheme objectives. The retention of the station buildings, the low scale building on the northern part of the site, the incorporation of a central public plaza and the location of the more substantial building to the southern part of the site currently used for car parking and other railway infrastructure, represents an appropriate design response for the site.
We acknowledge that the Council and the objectors prefer a low scale, low intensity, minimalist option for the site, which is primarily reflected in the 2008 structure plan. This option responds to the cultural and heritage significance of the site and to the existing character of Burke Road[1], but such a development ignores all other policy directions which provide overwhelming and specific encouragement for this site to be developed to a higher level of intensity and scale. We are satisfied that the applicant's proposal responds in a more balanced manner to these policy influences and also to the cultural and heritage significance of the site.
Notwithstanding the above, we have also concluded that there is a number of design, functional and built form issues which have not been adequately resolved in the plans presented to us. In particular, while we support the incorporation of a podium element in the southern, mid rise building, it is our view that a greater setback is required for the element above the podium. We have also identified a number of issues concerning the central plaza and the access to the station platforms, internal amenity and some aspects of its configuration which need to be reassessed.
These design issues need to be adequately addressed prior to us concluding that we should direct the issue of a permit. The changes to the proposal's design which are needed to address our concerns may necessitate quite minor amendments to the plans, or they may result in more significant changes. We are not in a position to determine the extent of design changes which may flow from our findings. The changes we are seeking are not therefore matters which can be addressed by us imposing permit conditions.
Having regard to our findings that the proposal represents an acceptable "in principle" design response to the site's physical and strategic context, we think that the appropriate course is to provide the applicant with the opportunity to prepare amended plans responding to our concerns. We have prepared an order to this effect and have provided the opportunity for the Council, referral authorities and objectors to make further written submissions on the amended plans.
Our reasons are set out below

[36]

In relation to the current proposal we can confidently say that there was little dispute between the parties that the state and local planning policy framework policy framework seeks to achieve the following outcomes:
- Encourage urban consolidation in established urban areas;
- Encourage development that improves housing choice and accommodates future housing needs;
- Facilitate residential and commercial development in existing activity centres with good access to public transport;
- Ensure that development achieves a reasonable standard of amenity for existing and new residents;
- Encourage the design of energy efficient buildings;
- Ensure that development respects the existing or preferred neighbourhood character;
- Achieve high quality urban design and architecture;
- Protect the environment and achieve sustainable land use and development;
- Protect the cultural and/or heritage significance of the locality;
Activity centre policy is a key component of the policy framework. It is within activity centres that new development is to be concentrated near current infrastructure and in areas best able to accommodate change[2].
There is a hierarchy of activity centres identified in the State Planning Policy Framework (SPPF). Camberwell Junction is one of nine Principal Activity Centres in metropolitan Melbourne. As the name implies, principal activity centres sit at the tier below the Central Activity District in terms of being the preferred location for ongoing investment and change in retail, office, service and residential markets. The location of principal activity centres on the public transport network is recognised as a significant factor in achieving increases in public transport usage and reducing reliance on motor vehicle transport.
Within activity centres, development is nevertheless expected to respond to its landscape, valued built form and cultural context[3]. This objective is reinforced where an activity centre or sites within it are affected by heritage overlays or other similar controls intended to protect heritage places or to achieve particular built form outcomes.
In the context of this site there is a heritage overlay which applies to the Camberwell Station and this overlay necessitates a consideration of the affect of the proposal on the significance of the heritage place.
Clause 15.11 of the SPPF is a Heritage Policy. Its objective is:

[43]

The preferred height of development along the Burke Road frontage of the site is specified as being 11 m for a 15 m setback. The height and scale of development beyond the 15 m setback is unspecified and is to be determined as part of a site-specific guideline or development approval[9].
These outcomes for the Camberwell Station are entirely consistent with the current designation of Camberwell Junction as a principal activity centre and the State policy impetus given to encouraging higher density development within and around activity centres and public transport infrastructure. While the 1993 Structure Plan predates the release by the State Government of the Melbourne 2030 strategy and the subsequent incorporation of the principles of that strategy into the planning scheme via Clause 12, the outcomes encompassed within the Structure Plan for Camberwell Station are consistent with long standing government policy for metropolitan Melbourne.
It is of some significance that the Structure Plan is 16 years old. Since the adoption of the plan, much has changed including of course the release of Melbourne 2030 (and the more recent State Government policy statement Melbourne @ 5 Million[10]) and the designation of Camberwell Junction as a principal activity centre.
The age of the Structure Plan does raise the question in our minds as to what weight we ought to give to it in our deliberations. This is a matter which has been considered by the Tribunal in other cases in Camberwell Junction. The Tribunal has consistently held that the policy at Clause 22.02 and the related 1993 Structure Plan remain relevant considerations, but that they must be interpreted and applied in the light of the more recent development of strategic planning for the Junction[11].
In our view therefore the fact that the review site, or at least part of it, has been formally recognised by the Council as a site upon which significant development is to be encouraged, is and remains very relevant and is a policy objective which has been reinforced by subsequent policy development for the Camberwell Junction, in particular its designation as a principal activity centre.
It is true that since 1993, the heritage significance of Camberwell Station which was identified in the Structure Plan has been formally recognised through the application of a heritage overlay. The application of the heritage overlay necessitates a consideration of the current proposal's impact on the significance of the heritage place. The application of the heritage overlay does not however have the effect of excluding broader policy considerations in the assessment of the proposal's impact on the heritage place. While the assessment of developments within heritage areas must be approached with care and attention, an examination of the overall state and local planning policy framework should not lead to the conclusion that such areas are to be excluded from contributing to the achievement of urban consolidation policy at a broader metropolitan level.
The impact of this proposal on the significance of the heritage place is an issue we consider in detail subsequently in our reasons.
A further aspect of the policy framework as it affects the site is the 2008 Camberwell Junction Structure Plan which was adopted by the Council in October of that year. We note that with respect to Camberwell Station it recommends that any development be contained to the car park area and "....be low scale, small footprint, with a focus on a public plaza, community use and low scale residential and commercial development"[12].
We do not propose to analyse this document in any detail because it is not a document to which we are prepared to accord any significant weight. Unlike the 1993 plan, the 2008 plan has not been included in the planning scheme in any form and there is no policy in the planning scheme which seeks to give effect to the recommendations of this document. The Council has not been granted authorisation to exhibit an amendment to the planning scheme based on the 2008 Structure Plan[13].
Notwithstanding the fact that the 2008 Structure Plan does not form part of the planning scheme, it has been adopted by the Council and in accordance with Section 60 (1A) (g) of the Planning and Environment Act 1987[14] it is a document we may consider if the circumstances appear to so require.
We can contemplate circumstances where it is appropriate to consider a structure plan where that plan does not form part of the planning scheme. For example, a structure plan may build on those policies and strategies contained in a planning scheme and may provide more detailed guidance for the development of an activity centre than that contained in the planning scheme. In such circumstances, the structure plan is complementary to the planning scheme and gives effect to the policy directions encompassed within the planning scheme.
These circumstances do not apply in this case. The 2008 Structure Plan, particularly as it relates to Camberwell Station, does not complement the planning scheme's policies and provisions. The 2008 plan in our view conflicts with and contradicts the State and Local policy framework of the planning scheme. It is not therefore a document which makes any significant contribution to the task we must undertake in the balancing of policies as they relate to this site.
The balancing of conflicting policies in favour of achieving a net community benefit and sustainable development is an integral part of decision making process in the planning system. The task of balancing policies is often a very difficult one, but in the present case the policy framework as it applies to this site provides a refreshingly consistent and unambiguous policy context for the consideration of this proposal. The low scale, low intensity, minimalist option for the site, supported by objectors and which is primarily reflected in the 2008 structure plan, responds to the cultural and heritage significance of the site but in doing so it completely ignores, and in the final analysis conflicts with, the overwhelming direction of State policy and the Council's own local policies contained in the 1993 Structure Plan and Clause 22.02.
An analysis of the policy framework in its entirety, leads us to conclude that a development, incorporating the retention of the station platforms, buildings and parts of their surrounds, and of the scale and intensity of the proposal on other, less sensitive parts of the site, is entirely consistent with the policy outcomes envisaged by the planning scheme for Camberwell Station specifically and more generally for the Camberwell Junction principal activity centre.
We now turn our attention to a consideration of the impact of the proposal on the cultural and heritage significance of the Camberwell Station, and of detailed design issues.

[48]

A recent heritage study[15] has recommended that a heritage overlay be placed on a properties in Burke Road extending on the eastern side between Victoria Street to the north and to just south of Prospect Hill Road, to include all of HO263 and the vacant railway land south of the station. Council has not yet prepared an appropriate planning scheme amendment.
Mr. Lewis, in his assessment of the impact of the proposed development on the heritage significance of the Station complex, took what we interpret as a broad view of the importance of the Station's setting, of views into and out of the defined heritage place[16]. He also considered that those parts of the station complex that would be directly affected by the proposal make a critical contribution to the Station's heritage values or to one's appreciation of them: the landscaped embankment and associated ramp, views into the place from Burke Road and views outwards or across the complex to Burke Road and the Palace Hotel. He considered that there is an intrinsic link, in terms of heritage values, between the Station itself and the nearby Burke Road 19th C streetscape.
In this vein, Mr. Lewis concluded that the proposal would unreasonably affect the heritage significance of the place. To address this, he proposed that the three-storey building to the site's north-west should not be built, the platform plaza should be reduced to the minimal functional size and be set as low as possible, the landscaping along the northern embankment should be retained, the podium of the southern building should be articulated and the upper level set back as recommended in the planning scheme.
In contrast, Mr Lovell's analysis of the effect of the proposed development on the heritage values of the station paid careful regard to the basis of its significance, as set out in the relevant Statement of Significance.
Having considered the two expert opinions, Mr. Lewis' and Mr. Lovell's, we conclude that Mr. Lewis has taken an excessively generous view of the significance of the contribution that the Station's surroundings make to its cultural significance. Rather, we agree with Mr. Lovell's evidence, where he concluded

[60]

We have concluded that the present Station has never contributed to the prevailing historic character Burke Road streetscape, appearing in this context as a pair of gaps in the generally two-storey commercial strip. Any development that filled in these gaps would therefore destroy that particular historic aspect of the strip that related to the original existence of Camberwell Station. Given our above conclusion that the proposed development is acceptable in terms of its affect on the heritage value of the station itself, the question then is, how should any development relate to the proposed Burke Street heritage precinct? Should any infill development replicate the scale and articulation of the historic buildings in this commercial strip, or could a new building use a more general approximation of this scale and articulation?
We agree with Mr. Lovell that the second choice is acceptable and that the proposal satisfies this criterion. We accept that the two proposed lower buildings (corner of Cookson Street and the podium on the southern side of the site) will stand out in the strip as modern buildings, being articulated less strongly[20] than traditional Victorian or 20th century commercial buildings, but without in our view being dominant or overwhelming within the strip. In effect, this proposal would produce another layering of history: being sufficiently sympathetic to the strip's heritage scale and character while reflecting the scale of modern architectural and property development. As discussed later, we also conclude that the quality of the architecture would itself be an enhancement to the Burke Road retail strip. That is to say we agree with Mr. Lovell that it is necessary that the infill structures should have and, in this case, do have merit.
Mr. Lewis was much concerned with the loss of a portion of the landscape strip, which he considered to be "a key attribute of the Camberwell Railway Station HO". We do not accept that the landscape strip is of such importance to the overall heritage value of the station. We accept Mr. Lovell's and Mr Patrick's evidence that it is typical of landscaping associated with railway stations of its era and has been poorly maintained for a long period, that the loss of three significant trees would be adequately offset by further appropriate plantings and improved maintenance and, overall

[62]

The section of landscaping to be lost is also only a very small part of the whole landscape strip, much of which is not included within the heritage precinct.
As a somewhat separate matter, Ms. Drost submitted that Camberwell Railway Station, particularly in its relationship with its immediate surroundings, has a cultural identity that is important to Camberwell Junction and the City. Ms Drost argued that this aspect of cultural identify could be considered separately from those aspects of heritage significance that are reflected in the Heritage Overlay. She referred us to the Tribunal's decision in the Khyat Hotel case[22], wherein Deputy President Gibson and Member Taranto refused, in considering a proposed amendment to an existing permit, to allow the demolition of the remaining front portion of a mid-19th century hotel because of its importance of its cultural identity to the City. This decision was made notwithstanding that the hotel was not included in a Heritage Overlay. In these circumstances the Tribunal drew its entitlement to reach its conclusion from Clause 15.11 Heritage of the Bayside Planning Scheme and, in reaching and applying its conclusion about the hotel's cultural significance, the Tribunal had regard in part to the weight of expressed community concern to retain the hotel.
We have concluded that the circumstances applying to the Khyatt case, and the range and nature of issues considered by the Tribunal in that case, are very different from those which are required to be considered by us in this case. Principally amongst those differences is the fact that the Camberwell Railway Station is already included in the Heritage Overlay. This overlay has been placed here in recognition of the heritage, that is the cultural, significance of the Station[23]. Consequently, in our preceding discussion we have assessed the affect of this proposal on the significance of the heritage place as we are required to do, and have concluded that the proposal is acceptable.

[64]

There is an inherent conflict in terms of built form and urban design in this case. The Council and community's view is that development if any on this site should be "contained on the carpark area and be low scale, small footprint, and with a focus on a public plaza, community use and low scale residential and commercial development" and the applicant, which seeks to insert an arresting contemporary design which nevertheless, it submits, "respects the typology of the main street image of the typical 19th/20th century strip shopping centre".
As discussed above, Clause 12.05 of the scheme, amongst its strategies, seeks to create urban environments that are of a better quality, safer and more functional, which provide more open space, promote good urban design and consider neighbourhood character. The local policy at Clause 22.02, the Camberwell Junction Policy, sets out a number of policies and decision guidelines to be followed in deciding an application. The proposal before us largely complies with the 1993 structure plan which designates the subject site as a development site with the potential to accommodate a landmark building. However, it clearly does not comply with the built form objective indicating a discretionary height of 11 metres along the Burke Road frontage for a depth of 15 metres. Beyond this, building form is to be "to site specific guidelines or development approval". As no site specific guidelines have been developed over the last 16 years[24], and no prior development approval has been given, it is now the responsibility of this Tribunal to consider the extent to which the design, height and scale of the current proposal responds to the site's physical and strategic context.
We say at the outset that we consider that the proposal responds well to its diverse context. We think the principal issues raised in terms of built form are:
- Whether, having regard in particular to the urban design policy at Clauses 22.02 and 19.03, of the Scheme, the heights, scale and design of the proposed buildings are appropriate to the very particular context of the site.
- Whether the interface to the station and the urban design response to Cookson Street, Burke Road and Railway Walk is appropriate, having regard to the design principles articulated by clause 19.03 of the Scheme in terms of context, the public realm, landmarks, views and vistas, pedestrian spaces and landscape architecture.
- Whether the internal amenity for future residents, particularly in relation to solar access and the apartment configurations is acceptable.
- Whether there are any unacceptable offsite amenity impacts.
The proposal is conveniently discussed in terms of its four related but separate components. These components are;

[67]

The Cookson Street building (the pavilion) was largely non-controversial amongst the design experts at the hearing. The highly transparent ground floor has the potential to activate both Burke Road and Cookson Street and the proposed refurbishment of the adjacent landscape of the northern railway embankments will further assist in its assimilation into what becomes, beyond Holly Street, the residential hinterland.
Council's chief concerns were the building's perceived failure to provide an active street frontage to Cookson Street and its affect on the pedestrian access to the station. Council's expert witnesses, Mr Andrew Hutson, Mr Craig Czarny and Mr Rob McGauran, all agreed that both the scale and architectural language of the pavilion were appropriate as marking the corner and the station entrance. Mr Czarny's concerns lay in what he considered to be "serious implications on amenity and functions of the (public) space". His evidence was that the building should be modified to allow for through access from the corner of Burke Road and Cookson Street, as he regarded this as a primary public safety issue.
Mr McGauran was also concerned about the access provided from Burke Road and Cookson Street to the northern platform of the station. He highlighted the need for a generous stair-free corner entry to the plaza with clear sightlines between the tram stop and platform destination. He criticised the projection of the two upper floors of the building over the lift and stair entrance to the station, submitting that it would prevent passive surveillance of the area from the apartments. Mr Czarny echoed these reservations.
We share the concerns about these aspects of the building. We agree that it is a well-designed building in its context, form and architectural treatment. It will make a small but distinguished contribution to the Burke Road streetscape. It may become even more important as a marker if in the future the tram stop is relocated nearer to the station which would more closely reflect its role in any Camberwell station transport interchange. We consider, however, that the pedestrian experience around the building could be greatly improved. The two metre-odd setback of the Burke Road wall at ground floor (as shown on the elevations on TP018, though not identified on plan TP010), provides an important link into the Plaza which in our view the splayed option shown on plan does not. We do not think that the drawings (presented at the hearing and unnumbered) showing a new stair connection to Cookson Street go any way to addressing the issue, and the diagonal cutback southeast corner has every characteristic of an after- thought to address what is clearly a poor solution to access onto the north platform. It is a design fault which we require to be addressed. We do not think that an additional stair to Cookson Street proposed during the hearing would give further benefit once access to the primary stair is resolved. In addition, it would appear to further disrupt Mr Patrick's proposed enhancement of the existing landscape of the adjacent bank area.
Indeed, we are somewhat at a loss to understand why the new northern stairway did not echo the design of the central stair and curve towards the track as it rises. This would result in an interface with the plaza some 3 or 4 metres south of that currently proposed. The access point would then be clearly visible from Burke Road and not involve a splay at the corner of the pavilion building. Be that as it may, as previously indicated we find that the present entrance to the northern platform is unacceptable in urban design terms.

[70]

He identified the dual role of the plaza as the provision of access to the residential apartment building and to considerably enhance the pedestrian linkage from Burke Road to the station.
Both Mr McGauran and Mr Czarny considered that its function as a link between the station and Burke Road was an appropriate response, but criticised the interface of the podium building with the plaza, the precedence given to retail core business in the Cookson Street building and the lack of clear access to the northern platform in what is first and foremost a pedestrian node and one which should be safe at all hours.
Mr Govenlock, for the applicant, held the opposing view, asserting that it met many aspects of Clause 19.03-2. Professor Goad in his evidence listed as one of four design challenges of the site, the creation of "a new public open space that also acts as a gateway to the station and hence a new entry and exit sequence that will reinvigorate and redeem a currently underutilised section of Burke Road". He applauded the increase in public permeability and the new focus that the plaza gave to the station. Mr Biles' evidence was that the Plaza would offer "commuters, shoppers, residents and office workers a place of transition and respite from the busy shopping strip of Burke Road".
Ms Burton was not alone in noting that the current proposal lacks seating or covered areas where the non-commuter and casual visitor could enjoy the space. She also held that the area was too small to create a sense of place identified in Melbourne 2030. She queried the role of the kiosks and had concerns that they reduced and obstructed current views to the station platforms. Mrs Crawford was concerned about the security of the undercroft spaces which the plaza would create. Mr Roach and Mrs Drost spoke in support the residents' proposal for a low open space plaza situated over the commuter car park with a community building to make it a central hub. Most of the residents who submitted to the hearing supported this minimal development option, seeing the opportunity for an open space lacking in the area, retaining a full view of the station platforms, available at present from Burke Road and Railway Walk. Few commented on specific details of the proposal before the Tribunal.
We strongly support the provision of a community facility on the site to both promote community "ownership", to provide a conveniently located service outlet and to increase the pedestrian usage of the plaza. There was general support from resident submitters for a community node in any development of the site, albeit that they wished any such development to be of minimal footprint overall. Mr Wren provided the Tribunal with a response to the suggested inclusion of a library in the proposed development, in the form of a preliminary list of requirements from the City Librarian. The key concepts require a high degree of visibility from both Burke Road and the plaza, with easy access to and from these locations, in order to maximise its attraction and ease of use to both commuters and the general community. We find these requirements to be reasonable, and we strongly urge the applicant to further explore the provision of a suitably designed library space which may include the area currently designated. While we are unable to make Orders or impose requirements on the Council and the applicant about the provision of a community facility such as a library, we are prepared to express the view that we regard the incorporation of such a facility in this proposal as an important goal.
The height of the plaza above Burke Road was an issue touched on at the hearing. When raised by the Tribunal, a letter from the structural engineer cited "current site specific restraint criteria" as determining the plaza level. We were also given a copy of Vic Track's Camberwell Station Specific Guidelines September 2000 which gave vertical clearance requirements. It was not explained to us whether the design of the existing Burke Road pavement has less structural constraints, or the plaza more constraints (leaving aside the issue of cost) which result in the difference in slab thickness required. We would strongly urge the applicants for review to investigate structural design options which could bring the plaza nearer to the level of the footpath at Burke Road. Whilst appreciating the advantages of a level plaza pavement, we consider that the design treatment of a walled enclosure to the south of the western entrance steps has a number of negative urban design impacts, particularly at the southernmost end where the bluestone retaining wall is above head height from the footpath, even before adding the required 1.0 m balustrading above the proposed seating which sits behind the retaining wall. We consider that a wide open stairway at the southern end of the plaza would give better exposure to the activity of the plaza, station entry and corner shop as well as the office and the residential entry.
Kiosks provide a useful community resource and are an activating feature, but as the details are not shown we consider that the number, location and design of the kiosks would be better determined once the details of ticketing and other functional requirements of the plaza are resolved. For example, the provision of ticket booths at the access stair to the northern platform will be a further constraint on that entrance as it is currently configured. It maybe prudent to defer the design and position of the kiosk while use patterns of the plaza are resolved.

[71]

Far more contentious than either the pavilion or the plaza was the design of the podium to the mid-rise apartments. Expert opinion was widely divergent. The lower level parking circulation and loading arrangements greatly concerned Mr McGauran. These are discussed below. He was also highly critical of the residential/office entry, considering that the single entry hidden, or at least masked, by the façade of the building, was a poor design solution. His concerns were echoed by Mr Czarny. Mr Biles raised doubts about the ability to identify the various entries into the different elements within the building - the mid-rise tower, the office, retail area or potential library. Clearly, these entries have posed a design challenge as they have already been moved nearer to Burke Road as the plans developed. We think that challenge has yet to be met - clear, legible and safe entries in situations such as this one are an accepted urban design imperative. We have no doubt that the applicant's architects have the skills required to resolve this important matter. It may be, as Mr McGauran suggests, that in addition a second more prominent entry point is required elsewhere.
The podium building plays a crucial urban design role enclosing the break between the north and south parts of the Burke Road shopping strip, meeting the objective of the Camberwell Structure Policy to activate and enliven a part of the activity centre which is in need of such treatment. Submissions and evidence covered both the urban design impact of the podium and its internal arrangements.
The podium building is clearly visible on the three of its four sides with a more circumscribed view available from Railway Walk. As noted above, there is an express provision in the planning scheme (taken from the 1993 Structure Plan) that buildings should not exceed 11m for 15m back from the frontage of the site to Burke Road. The height of the podium as designed at the Burke Road frontage ranges from 10.29m to 13.55m, which conflicts with the 11 m height specified in the planning scheme.
Professor Goad described one of the challenges of the site as to provide a sympathetic architectural setting to the Burke Road shopping strip. Whilst the strongly articulated contemporary design of the podium is different from the older buildings which will surround it, the clear glazed fine-grained shopfronts with canopies which step up Burke Road is in our view, an acceptable echo of those further south. A pedestrian on the east side of Burke Road would continue to experience narrow shopfronts protected by overhead canopies projecting over the footpath and only separated from the existing shopfronts by the width of Railway Walk. The clear glazed shopfront treatment returns down the laneway 25m or so to an office entry lobby. The black metal fretwork sitting over coloured glazing also continues across the south side of the plaza, although it was made clear at the hearing that the façade detailing has not yet been fully resolved.
With respect to the Burke Road frontage, Mr Czarny found this an "overly dominant design treatment over a length of 55m". He found the height generally acceptable, but was concerned that, in not reflecting the staggered parapets which define other parts of Burke Road shopping strip, it would become a dominant streetscape element. Mr Hutson agreed. He considered that the design of the podium should respond more directly to the fine grain pattern and rhythm of the existing streetscape to the south for a significant proportion of its length. His evidence was that in this way it could provide transition to the more striking language nearer to the plaza and had the added advantage of reducing the height of the podium at its southwest end where it met the existing form on the other side of Railway Walk. On the other hand, Mr McGauran considered that both the height and façade treatment of the podium could be justified by its association with the new plaza space.
We are persuaded that the height and proposed design treatment of the podium are acceptable, whilst noting that there are many unresolved design details.
The Tribunal was somewhat frustrated by the lack of a detailed correlation between the plans and the elevations, coloured and uncoloured drawings and the new suggestions which appeared at the hearing. We do accept, however, that there are many aspects of the design which will remain to be resolved as design development proceeds. We are confident that many of these matters can be adequately resolved through this process. There are other matters however we think should be resolved at the planning permit stage.
One of the issues which we think should be addressed at the planning permit stage relates to the appearance of the building when seen obliquely from the station or looking down Burke Road. During the hearing the applicant produced podium elevations showing more slender columns and additional lighter glazing elements. Suffice to say we preferred the more lightweight treatment.
Another issue raised at the hearing concerned the podium building's interface with Railway Walk. Council wished for full activation of this façade whilst the applicant pointed out that the current inability to attract traders, (at present there are only a single tenancy to the south side), would only increase when pedestrians were no longer required to use Railway Walk to reach the station. Safety issues were also raised. We consider that the glazed returned shopfronts of the Burke Road corner tenancy, the office entrance and the proposed innovative lighting treatment along Railway Walk will considerably improve the ambience of this laneway. We find the proposed treatment of the laneway acceptable.

[72]

The design of the mid-rise apartments was the most contentious aspect of the whole proposal. The dispute around this aspect of the proposal related to the height, style and form of the mid rise building, as well as the failure of the proposal to incorporate a setback from Burke Road as called for by the Council's 1993 Structure Plan.
We accept that the building as presented to us is clearly distinguishable from the podium in both materials and form with its faceted raked glazed facades sitting above the rectilinear podium. The applicant's expert witnesses sought to persuade the Tribunal that the above-podium component would "take on a crystalline form with all of its facades sloping inwards or outwards so that it will appear as a shimmering crystal of soft silver glass"[25]. Professor Goad supported this view, saying that the drawings before the Tribunal concealed the clever modelling of the mid-rise building "which will negate the idea of a single and monotonous development" and that the faceted forms would ensure that the building did not read as a singular massive form. Mr Biacsi's view was slightly different: he thought the building would be highly visible, but considered that it would be "a prominent yet attractive contemporary addition that will mark this location when viewed from surrounding areas"[26].
This view was strongly disputed by Council's expert witnesses. Mr Czarny said that a nine-storey building did not respect the scale and proportion of Burke Road, that it would be an overwhelmingly dominant object in this sensitive location, and that in particular its closeness to the street alignment would be detrimental to the experience of Burke Road. His view was that a building of very substantial visual bulk and mass was not supportable in this location. Mr Hutson also thought that the considerable visual impact on the streetscape and border context meant that the building should be set back and reduced in height.
Mr McGauran, with whom we agree on this aspect of the design, considered that the imagery which seeks to imply that the building will dissolve in a background sky is highly optimistic. Whilst supporting the notion of a tall building on this portion of the site, Mr McGauran's view was that "a substantial setback from the Burke Road frontage and a minimum setback between the proposed residential development and existing commercial property boundaries and buildings south of Railway Walk of 9 metres"[27] is preferred.
During the course of the hearing, the applicant provided sketches showing how a 9 metre setback from Burke Road could be achieved whilst maintaining the existing yield by an additional level with a smaller footprint. Whilst not entirely agreeing with Mr McGauran's proposed setback, we think that this demonstrates a sound approach that could be further explored to bring the setback closer to the 15m set out in the planning scheme. It is our preliminary conclusion that an acceptable outcome in relation to visual bulk will be found if the building is set back somewhere between these two figures. We do not think it is appropriate for us to be prescriptive about what the setback of the mid rise building should be. It is our view however that the manner in which the mid rise building is differentiated from the podium, is a design response which does not successfully achieve the objectives of the Structure Plan. In terms of determining an acceptable setback from Burke Road, we will assess any revised proposal presented to us against the objectives of the Structure Plan.
We wish to make it clear that we consider a building of design excellence on this site can be a higher one if it resolves the interface issues and in particular those with Burke Road.
We also record that we have not required a setback of the mid rise building for reasons relating to views of Our Lady of Victories, as we consider that from this part of Burke Road, views of this building are fleeting or obscured. We recognise, however, that the wider view cone provided by an increased setback may address some of the concerns about the retention of the existing and familiar "townscape silhouette" raised by Council's witnesses.
Mr McGauran was also dissatisfied with the internal amenity of the apartments. He cited poor layouts which resulted in bedrooms with borrowed light, insufficiently large terraces, lack of laundry facilities and inadequate corridor width amongst other things. He, like the Tribunal, was frustrated by the lack of correlation between plans and elevations which made the design intent difficult to determine in relation to the proposed terraces and openable windows for example. We do not intend to discuss these or indeed the car park layout/access issues covered below in detail and will simply list in our order those issues we wish the applicant to explore and resolve in any amendments to the design.
In relation to these and other amenity issues raised in expert evidence or during the course of the hearing, it is our expectation that the architects will review these in the process of reconfiguring the proposal as required by our order. We most particularly wish to allow the designers the flexibility to creatively explore solutions to our concerns.
The use of reflective and coloured glazing on the facades of differing orientation will give rise to a variety of offsite impacts. We would expect the applicant to provide the Tribunal with expert evidence in regard to the various characteristics of the proposed glazing system which forms such a fundamental component of the design and has given rise to concerns from submitters regarding for example glare and thermal performance.

[73]

The plans considered by us during the hearing provided for the replacement of 27 parking spaces which are currently available on the land and which are used as commuter parking. We were advised that these spaces have been included in the design at the insistence of the land owner (Vic Track) but that it was the applicant's preference that such spaces not be included. We were invited by the applicant to make observations about the desirability or otherwise of making provision for commuter parking at a railway station located within a principal activity centre.
At the conclusion of the hearing we were provided with correspondence from Vic Track advising that it is prepared to waive its requirement to replace the commuter parking at this site. The letter indicated Vic Track could better provide commuter parking further down the line.
We think that this is an eminently sensible position because the provision of commuter parking at railways stations in principal activity centres has the potential to compromise the functioning of the centre. It also has the potential to undermine the objective of integrating public transport infrastructure and use within activity centres[28].
The removal of the 27 spaces does necessitate a redesign of the car park. In view of Mr McGuaran's comprehensive concerns about the layout of the car park, we think it is appropriate that the redesign be incorporated into the amendments to the proposal we have identified elsewhere.
We received submissions that the proposed loading and unloading facilities are inadequate and poorly designed/located. We are satisfied that the proposed facilities are sufficient for a development of this type.
The final matter we need to make findings about is the Vic Roads' requirement that vehicular access and egress from the site be limited to left in and out only.
We have been assisted in our deliberations on this issue by the expert evidence of Mr Turnbull and Mr Hunt. Both witnesses agreed that access and egress should be to and from Burke Road. It was Mr Turnbull's evidence however that having regard to the traffic volumes and to the tram services in Burke Road, a left in and left out restriction is warranted. Mr Hunt relied on a gap analysis undertaken by him to support his evidence that there are sufficient opportunities in the traffic flows along Burke Road to enable vehicles to turn right into the site and right out, without adversely affecting the functioning and efficiency of Burke Road or the tram route.
It was Mr Hunt's evidence that a left in and left out restriction does not compromise the proposed development and that it could accommodated within the design. In his view however, it is simply not necessary.
We have concluded that a left in and left out restriction is supported by applicable policies and that in this case it is warranted. We agree with Mr Turnbull's evidence and Mr Beaufoy's submission that Vic Roads and public transport authorities have adopted a range of policies and guidelines aimed at improving the design of developments that affect public transport services[29]. These policies and guidelines are aimed at ensuring the provision of a sustainable public transport network into the future. With respect to this proposal, it is relevant that the guidelines aim to facilitate priority treatment for trams within the road network. Developments undertaken on land abutting tram networks are encouraged to be designed to give effect to tram prioritisation. The guidelines incorporate a range of design solutions and suggestions including minimising right turning vehicle movements in the path of trams.
We wish to emphasise that the design guidelines cannot be regarded as design rules or regulations with which all developments in activity centres or abutting tram routes must comply. Each development must be assessed on its merits and must be assessed against that proposal's achievement of the objectives contained in the guidelines.
In this case we are satisfied that the imposition of a restriction preventing vehicles turning right out of the site and turning right into the site is consistent with the achievement of the objectives associated with the provision of sustainable public transport networks through the prioritisation of tram routes. This can be achieved without compromising the functioning of the proposed development. The imposition of the restriction on right turn movements will necessitate a redesign of the Burke Road access and potentially the internal configuration of the car park and associated access ramps and aisles. These changes should be reflected in the amended plans.

At a glance

Court

Decision date

Source

Judgment (101 paragraphs)

CSTP Pty Ltd v Boroondara CC & Ors (includes Summary) (Red Dot) [2009] VCAT 1078 (2 July 2009)

Parties

Legislation Cited (1)