Deal Corporation Pty Ltd v Yarra CC [2003] VCAT 573

b) roof and sunshade fins to the Cremorne Street elevation of the development to be redesigned so as not to project over title boundaries;

d) details of the use of area noted as "Residents Facilities" on the ground floor;

e) details of adequate secure storage facilities to be provided for each dwelling;

f) the carpark entry/exit route must incorporate a continuous, flood proof apex that is at least 600mm A.H.D. above the 100-year flood level or such lower clearance approved in writing by Melbourne Water Corporation.

g) a schedule demonstrating that each dwelling in the development achieves a 4-Star First Rate energy rating applying the SEAV, First Rate - House Energy Rating Software or equivalent. All dwellings in the development must achieve a 4-Star rating;

h) details of the use of natural ventilation for offices;

i) details of measures to provide on site retention of some stormwater to enable irrigation of the landscape podium and other landscaped areas;

j) a schedule of high efficiency lighting to the satisfaction of the Responsible Authority to be used for internal and external lighting for the development;

k) details of the waste management notably during building construction and demolished materials recycling;

l) A landscape plan drawn to scale with dimensions and three (3) copies must be provided to show:

(i) the location, quantity and maturity of all proposed plants, the botanical name of plants;

(ii) the location of all areas to be covered by lawn or other surface materials;

(iii) provide a specification of works to be undertaken prior to planting;

(v) details of site permeability and ensure that hard landscaped areas are so designed and use materials designed to maximise permeability; and

(vi) confirmation that soil depth is adequate to permit the growth of trees to a mature state and ensure their ongoing health.

o) the ramp grade must not exceed 5% (ie 1 in 20) across the property line or building alignment and for at least the first 6m into the car park;

p) column positions at Car Park 1 and Car Park 2 (ie space no. 19, 22, 25, 28, 31, 34, 37) must be 250mm clear of the aisle;

q) all the tandem spaces at Car Park 1 and Car Park 2 must be 9.8 metres in length;

r) the provision of secure permanent storage for a minimum of 17 bicycles for the commercial uses on the site with details of storage lockers or compound to be submitted and approved by the Responsible Authority;

s) the provision of adequate trip end facilities for cyclists to be provided within the development to include one storage locker for each permanent bicycle space together with adequate showering and changing facilities;

t) the provision of a minimum of eight bicycles rails to be provided at ground floor level within the development to cater for short term bicycle storage; and

u) the provision of secure permanent storage for a minimum of 40 bicycles for the residential uses on site with details of storage lockers or compound to be submitted and approved by the Responsible Authority.

2. All development and use must accord with the endorsed plans. Any alterations must be approved by the Responsible Authority.

3. Where the endorsed plans depict an area of the development as being for a specified use or uses, that area must be used in the manner specified and for no other use unless with the written consent of the Responsible Authority.

4. Landscaping must be carried out in accordance with the endorsed Landscaping Plan and maintained to the satisfaction of the Responsible Authority.

5. Prior to commencement of the development hereby approved, a car park 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. The car park management plan must include:

a) the allocation of each of the parking spaces to a dwelling, residential visitor spaces and showroom office (all tandem parking to be allocated to the same dwelling);

b) proposed signage to direct occupants and visitors to their designated spaces;

c) the collection of waste and garbage (including the separate collection of organic waste and recyclables); and

d) the loading and unloading of goods and materials for the commercial uses.

When approved, the car park management plan will be endorsed and form part of this permit.

6. The Owner must enter into an agreement under Section 173 of the Planning and Environment Act 1987 with the Responsible Authority prior to the sale of any dwelling in the development. The cost of preparing and lodging this agreement, including any Land Titles Office registration fees shall be borne by the applicant. The agreement must provide for the following:

no owner or occupier of the development shall make application for resident priority parking with the relevant authority in respect of their respective lot or dwelling within the development.

7. All delivery and collection of goods associated with any business must be conducted between 8.00am and 6.00pm Monday to Saturday.

8. No fewer than 252 car spaces must be provided on the land for the use and development.

9. The car parking area must be used for no other purpose and must be line-marked and maintained at all times to the satisfaction of the Responsible Authority.

10. Any existing vehicular crossing made redundant by the building and works depicted on the endorsed plans must be broken out and reinstated and any new vehicular crossings must be constructed to Council's standard vehicular specification to the satisfaction of the Responsible Authority and must all be carried out at the permit holder's expense.

11. Any noise emitted form the subject premises shall:

a) at all times comply with any limits, standards or rules prescribed thereto or imposed by, in or under State Environment Policy made pursuant to the Environment Protection Act 1970, and in particular the State Environment Protection Policy (Control of Noise from Commerce, Industry or Trade) No. N-1; and

b) at all times be such as to comply with any noise control notice served on the occupier of the subject premises pursuant to Section 47 of the Environment Protection Act.

12. Alarms must be directly connected to a security service and must not produce noise beyond the premises.

13. The amenity of the area must not be detrimentally affected by the use or development, through:

a) The transport of materials, goods or commodities to or from land;

b) The appearance of any buildings, works or materials;

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

14. Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on nearby land.

15. Rubbish, including bottlers and packaging material, shall at all times be stored within the designated bin store and screened from external view.

16. All waste collection for commercial and residential uses on site to be undertaken by private contractors.

17. Before the commencement of construction or carrying out of works associated with the residential component of the development, the owner of the subject site must provide to the satisfaction of the Responsible Authority a report from an appropriately qualified and experienced acoustic engineer specifying any measures required to provide noise attenuation from the nearby industrial/commercial properties to protect the amenity of the future residents of the dwellings. The owner must carry out any works that are specified in the report.

18. Before building or works are constructed or carried out in association with the development hereby approved, either:

a) a Certificate of Environmental Audit or a statement indicating the land is suitable for a sensitive use must be issued for the land in accordance with Section 57AA(5)(b) of the Environment Protection Act 1970; or

b) an environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Section 57AA(5)(b) of the Act that the environmental conditions of the land are suitable for the proposed sensitive use.

19. Prior to the occupation of any dwelling 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.

20. Any soil removal from the site during the construction phase should comply with EPA requirements for off-site disposal for potentially contaminated soil (ie. EPA Publication No. 626, October 1998).

21. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

22. The carpark entry/exit route must incorporate a continuous, flood proof apex that is at least 600mm A.H.D. above the 100-year flood level or such lower clearance approved in writing by Melbourne Water Corporation.

23. Prior to commencement of works, amended plans must be submitted to Council and Melbourne Water addressing Melbourne Water's condition 22.

24. The finished ground floor must be a minimum of 600mm above the applicable flood level or such lower clearance that is approved in writing by Melbourne Water.

25. Any vehicular and/or pedestrian access must be designed and constructed to comply with the following safety criteria associated with the applicable flood level:

c) The depth x velocity product does not exceed 0.35 sq.m/s.

26. Stormwater drainage of the property must be provided to the nearest Council pit of adequate depth and capacity to the satisfaction of Council.

27. Areas must be provided inside the property line and adjacent to the footpath to accommodate pits and metres. No private pits or metres on Council property will be accepted.

28. During the construction phase of the development, the following conditions shall be met:

a) only clean rainwater shall be discharged to the stormwater drainage system;

b) stormwater drainage system protection measures shall be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises enters the stormwater drainage system;

c) vehicle borne material from the premises shall not accumulate on the roads abutting the site;

d) all machinery and equipment must be cleaned (if required) on site and not on adjacent footpaths or roads;

e) all litter (including items such as cement bags, food packaging and plastic strapping) must be disposed of responsibly; and

f) all site operations shall comply with the Environmental Protection (Residential Noise) Regulations 1997.

29. Before the commencement of the development, a Construction Management Plan 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 indicate that the following matters will be addressed:

c) 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 of the site;

k) delivery and unloading points and expected frequency;

m) an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services;

n) a liaison officer for contact by residents and the Responsible Authority in the event of relevant queries or problems experienced and who is available 24 hours per day; and

o) details of any contaminated soil or other material on the site and methods proposed to deal with contaminated material, including steps proposed to protect construction workers and adjoining residents.

30. 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 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.

31. This permit will expire if the use or development is not commenced within two years from the date of this permit. All development must be completed within four years from the date of this permit. The Responsible Authority may approve extensions to these time limits if requests are made within three (3) months of expiry.

Pursuant to Section 85(1)(b) of the Planning and Environment Act 1987 the Responsible Authority is directed to issue a permit in accordance with this determination.

__________________________ __________________

Mr J. Rantino, Solicitor of Maddocks, appeared on behalf of the Responsible Authority on 28, 29, 30 April 2003. Ms A. Lane, Solicitor of Maddocks, appeared on 1 May 2003.

Mr I. Pitt SC of Best Hooper, Solicitors, appeared on behalf of the Applicant for Review.

Mr G. Ayers, an objector, represented the Respondent/Objectors. He was assisted by Mr J. Barker, Ms P. Chambers, Ms C. Hume and Mr G. Rundell.

Ms J. Tait, Town Planning Consultant, represented the City of Stonnington, an objector.

Application under S.79 of the Planning and Environment Act 1987 (PE Act) for review of the failure to grant a permit within the prescribed time.

Mixed-use development comprising 131 dwellings, 3860 square metres of office space, 575 square metres of showroom space, a licensed café and provision for car parking of 252 vehicles.

Yarra Planning Scheme - Comprehensive Development Zone.

The review site is bounded by Cremorne Street to the west, Bent Street to the south, Dover Street to the east and Balmain Street to the north. It is regular in shape with an overall area of 6470m2 and falls gently from north to south. The eastern part of the land is presently being developed for the purpose of 15 two-storey townhouses and these occupy the entire Dover Street frontage. This leaves an area of 4410m2 remaining for development.

The land supports a number of industrial buildings, generally two or three storeys high. These buildings have been vacant for a lengthy period.

Cremorne Street provides the main vehicular linkage through the precinct, and connects Swan Street (approximately 500m to the north) with City Link (approximately 80m to the south). Cremorne Street has a pavement width of 11.2m with footpaths and parallel parking being provided on both sides of the road. Various industrial buildings are situated on the western side of Cremorne Street at this point on land located in a Business 3 Zone.

The northern side of Balmain Street and the eastern side of Dover Street both support a variety of residential dwellings, some single storey, some two storeys, situated in a Residential 1 Zone. The eastern side of Dover Street is protected by a Heritage Overlay. Residential areas lie further to the east.

The south side of Bent Street, opposite the review site, contains warehouse buildings situated within a Business 3 Zone. Beyond these buildings lies the freeway.

The wider Cremorne precinct comprises a mix of residential, industrial, commercial and educational uses. The most dominant structure is the Barrett & Burston malting site with a complex of industrial buildings and silos rising to a height of 37m. The silos support the well-known landmark, the "Nylex clock".

It is clear that the precinct is one undergoing significant redevelopment. This is an inevitable product of its proximity to a highly developed public transport system, the shopping opportunities available in Church Street and Swan Street, and the closeness of the CBD and the freeway. Several other large redevelopment projects within the area are also under consideration by the City of Yarra.

In reporting to the Council, its Planning Officer provided the following comprehensive description of the subject proposal:-

The proposal before Council is to redevelop the land at 165 Cremorne Street, Cremorne (the subject site) for the purposes of a multi storey, (part 3 and part 10 storey) mixed use development including residential, office, showroom and restaurant uses. The proposal can be detailed as follows:

A total of 131 dwellings, including 14 apartments over two levels fronting Balmain Street, 29 apartments over three levels fronting Bent Street, and 88 apartments contained within the remainder of the proposed 10 storey building fronting Cremorne Street.

Pedestrian entry to the 14 apartments fronting Balmain Street is via a stairwell entry from Balmain Street. Pedestrian entry to the remaining dwellings is via a lift and stairwell entry from Cremorne Street.

Dwelling mix is proposed to be 81 x one bedroom dwellings, 5 x one bedroom (plus study) dwellings, 37 x two bedroom dwellings, 2 x two bedroom (plus study) dwellings and 6 x three bedroom dwellings. All apartments are provided with balconies of varying sizes.

Three levels of office floor space is proposed to be located in the north-west corner of the subject site fronting Cremorne and Balmain Street. A total floor area of 3850sqm would be provided with access to be provided from a separate entry from Cremorne Street.

A ground level showroom is proposed to be located in the south-west corner of the subject site, with a total area of 550sqm. Access to the showroom is proposed from Cremorne Street.

A licensed café/restaurant, of 160sqm, is proposed at ground level fronting Balmain Street. The proposed café/restaurant would include 60 indoor seats and 15 outdoor seats and is proposed to operate from 7.00am to 11.00pm, seven days per week. A liquor licence is also sought in relation to the café/restaurant.

A large communal open space area is proposed on the eastern side of the 10 storey tower building within a central courtyard.

The open space area includes a large lawn area, hard and soft landscaping and lap pool facility with outside seating area for the café to be provided within this area.

The height of the building above ground level varies across the site due to the fall in ground level across the site and can be summarised as follows:

a) height of the development to Balmain Street varies between approximately 11.6m and 12.8m with an additional 3.0m to the top of the plant room;

b) height of the podium level of the development along the Cremorne Street frontage varies between approximately 11.6m to 13.8m;

c) height of the tower element of the proposal varies between approximately 35.9m to the upper roof level adjacent to Bent Street and 34.5m to upper roof level at its northern end;

d) the lower roof level, which the highest point on the east elevation, is approximately 1.9m lower than the upper roof level with the plant room being approximately 2.0m higher than the upper roof level however is set into the roof plate; and

e) given the fall of the land one basement carpark is below ground level with the upper basement being benched into the land slope and as such is partly at ground level along the southern portion of the site.

The proposed development includes a setback of between 1 metre and 10 metres to the offices and showrooms from the Cremorne Street frontage, with the proposed tower set back approximately 7.9 metres from this frontage.

A 3 metre setback is proposed from the Bent Street frontage to the low level residential apartments, with the tower set back a minimum of 3.7 metres from this frontage.

The proposed offices and café at ground level are set back 2.0 metres from the Balmain Street frontage. The tower building is set back approximately 20.9 metres from this street frontage.

The fin elements and the roof at third level on the Cremorne Street elevation of the are proposed to overhang the title boundary to this frontage by up to 1.0m.

It is proposed to provide landscaping within the setback areas, either in the form of trees, as proposed within the Bent Street and Cremorne Street setbacks or via raised planters.

The design of the development is contemporary and is based on a three storey podium that wraps around the three street frontages of the site with the higher element of the development set back into the south-west portion of the site.

The podium elevations would have a horizontal emphasis broken up with vertical elements and are proposed to be clad in a mix of materials that would include clear shopfront glazing at ground floor level and a mix of ferric oxide treated precast concrete, off form concrete, white applied finish concrete and grey tinted glass with charcoal window framing and sun protection fins. To the Cremorne Street elevation the podium would feature a series of blue coloured metal sunshade screens and an overhanging room element. The showroom element is proposed to have double storey clear glass glazing with a feature piece of public art proposed at the corner of Bent and Cremorne Street.

The high rise element of the proposal uses the balcony design to model the elevations with balconies projecting and running north - south along the building with a concave from that would appear to "twist" from floor to floor as the balcony angles vary. The balcony material also would add to this effect using half solid balustrading below glass to create a strong visual presence.

The main elevations of the building would be clad with lightly tinted grey glass with powder coated charcoal coloured framing, broken up with vertical translucent white privacy screens and off white coloured concrete. The plant room is proposed to be clad with galvanised zinc purlin screens.

Sustainability design initiatives that have been incorporated into the design are as follows:

a) orientation of the building designed to maximise natural light with sun shading devices proposed to reduce solar gain;

c) use of natural ventilation is proposed for offices;

d) on site retention of some stormwater to enable irrigation of the landscape podium and other landscaped areas;

e) increase in permeable surfaces through use of landscaping;

f) perimeter lighting for offices to be on sensors; and

A total of 252 car spaces are provided within two basement levels with access to the proposed basement car parking spaces is via a 6.4 metre wide accessway from Bent Street.

A loading bay area is proposed to the west of the proposed car park accessway for rubbish collection and commercial deliveries.

It is proposed to allocate 108 spaces to the proposed office component, 134 spaces to the proposed residential component, and 10 spaces for the showroom and café uses.

The site is located in a Comprehensive Development Zone. It is necessary therefore to examine some of the history relevant to the present application.

In June 1998 the Responsible Authority exhibited a Planning Scheme amendment for the development of the subject land. That amendment (Amendment L71) comprised the following components:-

a) 27 terrace dwellings in the eastern portion of the site fronting Dover and returning along Balmain Street rising to two and three storeys and providing a mix of 14 x 2 bedroom and 13 x 3 bedroom dwellings;

b) the construction of an eight storey building extending the full length of the western or Cremorne Street frontage of the site with a depth of approximately 17.5m comprising lower ground and ground level showroom/foyer, four levels of office floor space and three levels of residential use;

c) a total of approximately 376sqm of showroom floor space and approximately 4540sqm of net office space would be provided in the eight storey building, a total of approximately 4916sqm of commercial floor space;

d) the residential component of building would provide 27 dwellings comprising 1 x one bedroom dwelling, 23 x two bedroom dwelling and 3 x three bedroom dwellings;

e) the building would rise to a maximum height of approximately 31.2m above ground level at the corner of Cremorne and Balmain Street and given the fall of the land towards the river, would rise to approximately 33.2m above ground level at the corner of Bent and Cremorne Street. The east elevation would rise to a lower height of approximately 26.7m. The building would be clad in a mixture of seamless curtain wall glazing and panellised metal cladding with a curvilinear roof profile; and

f) the provision of 237 car space on the site. 101 spaces within a basement level accessed from Bent Street, 89 spaces to be provided within an open deck at grade accessed from Balmain Street and 47 spaces provided in an undercroft area below the terrace dwelling accessed from Bent Street.

Formal notification was provided to the owners and/or occupiers of 281 surrounding properties. As a result, 86 submissions were received and consideration of the proposal and the submissions was referred to a panel. During the panel proceedings the Council strongly supported the proposed development. Its submission contained the following passage:-

a) it can be argued that once in a while, a development is proposed which does not strictly comply with existing principles or policies but which should be given special consideration; and

b) the current proposal is a case in point. It is a new land use concept for the City of Yarra. The City's key strategic directions in relation to residential development and business activity are met; and a major urban renewal site will be revitalised with an innovative design solution which does not compromise amenity which should make a landmark statement of metropolitan significance for the City of Yarra.

In January 1999 the panel submitted its report to the Council. The report acknowledged the unique attributes of the site and its suitability for a tower component. The panel endorsed the Council's view that the proposal was consistent with its MSS in that :-

* it encouraged quality, contemporary development;

* it encouraged business types which could co-exist with residential uses, while minimising conflict;

* it offered redevelopment of land which was surplus to industrial activity.

On 8 February 1999 the Council adopted the Amendment with minor changes. The Minister approved the Amendment in May 1999 and it now forms Schedule 2 to the Comprehensive Development Zone at Clause 32.07 of the Yarra Planning Scheme. The resulting proposal is now known as the "Wardle Proposal", apparently a reference to the original architect.

The effect of Clause 37.02 is that the development plans of the 1988 development are incorporated into the Planning Scheme and any development "generally in accordance with those plans" can proceed without the need for a further permit. However,

Sub-clause 4 provides that any development "not generally in accordance with the Comprehensive Development Plan, or variations to the Comprehensive Development Plan which are not minor" requires a permit.

It was common ground between the parties that the provisions of the Planning Scheme did not prevent consideration of an application for the mix of uses specified in the documentation accompanying this proposal.

As in all matters of this kind, the Planning Policy Framework is extensive and we see no point in setting out all the provisions of the Scheme in elaborate detail. Those relevant to this proposal are set down at pages 10 - 19 of the Council Officer's report. In coming to its decision, the Tribunal has had careful regard to the planning controls and to the policy framework.

Some mention was made during the hearing of the document "Melbourne 2030", Mr Rantino relying on the fact that the site was more than 400m from an activity centre to suggest that the strategy was of little or no relevance to these proceedings. However, Mr Pitt submitted that the officer's assessment of that issue was to be preferred. The report states:-

The site itself is not within 400m of an Activity Centre with Swan Street being some 530m to the north and Church Street being further than 400m to the east. Punt Road however lies just to the west of the site and the Richmond Station and other public transport routes, and services are relatively close by. It is considered that the site has a functional relationship with these activity centres and their transport opportunities and other services and that an arbitrary application of the 400m radius is not appropriate for this site.

It is therefore considered that the development as proposed is consistent with the Key Direction 1 of 2030, "A More Compact City". In accordance with the policy direction the further assessment of this proposal will need to be aware of the balance that must be struck between this Key Direction of consolidation and other relevant Key Directions of 2030 such a Key Direction 5, "A Great Place to Be", that focuses on the promotion of good urban design, the protection of neighbourhood character and heritage places.

Setting aside that issue, it is clear beyond argument that the proposal is consistent with the urban consolidation provisions of the Scheme, provisions that have been pursued as an important plank of State planning policy for well over a decade. Fundamental to that policy is the principle that, as industry migrates to the outer suburban reaches of the metropolis, the vacancies which it leaves behind will be reclaimed for residential purposes, thus revitalising the inner core of the city.

These policies are also reflected in the LPPF. Several specific passages from the local policy framework which reinforce the urban consolidation strategy will be set down later in this determination.

4. Council's consideration of the present application.

The Responsible Authority received the present application on 24 May 2002. It sought and received some additional information. Advertising procedures commenced on 12 September 2002 and, as a result, 26 letters of objection were received. These covered the following grounds:-

d) disruption of view to the historic Nylex clock;

f) concerns regarding intoxicated patrons from the proposed licensed restaurant and noise;

h) out of keeping with the predominant scale of the area.

A consultation meeting was conducted on 13 November 2002. On 25 November, the applicant lodged an application for review against the Council's failure to make a decision within the prescribed time.

Subsequent to the application for review being lodged, the Council considered the proposal, the objections and a very comprehensive (53 page) report from its Town Planning Officer recommending that the Council support the development but subject to a condition requiring the removal of the upper two floors. The Responsible Authority however resolved that, had the application for review not been lodged, it would have refused to grant a permit on the following grounds:-

1. The proposal fails to respond sufficiently to the CDZ - Schedule 2 purposes.

2. The scale and bulk of the proposed development is unacceptable in its locational and strategic context.

3. The proposal does not adequately respond to the predominant surrounding built form along Cremorne, Balmain, Dover and Bent Streets and their environs.

4. The proposed development would result in a poor level of amenity for future occupiers.

5. The location is not one which can properly support the extent of higher density residential development as proposed.

6. The proposed development would provide inadequate parking provision on site and would result in an unacceptable increase in traffic within the local road network, both to the detriment of local amenity.

7. The proposed development would result in the loss of views from the public domain towards the local landmark, Nylex Skysign.

8. The proposed development is an overdevelopment of the site.

9. The proposal is contrary to the orderly and proper planning of the Cremorne area.

It is necessary to say something regarding the assessment carried out by the Council's Planning Officer.

The author of the report did not rely solely on his own judgement. He referred the application to Mr Robert McGauran of McGauran, Soon Architects, and to Mr Mike Scott of Planisphere, each of whom assessed the proposal and provided independent urban design and architectural advice. A document prepared by Mr McGauran which offers a comparison of the Wardle proposal with the present application has proved to be a useful analysis and forms attachment 1 to this determination. The relevance of that comparison is a question to which we shall later return.

Mr McGauran supported the proposal. While making some suggestions for minor improvements, Mr McGauran did not recommend any reduction in the height of the structure. As to State and Local policy objectives, he pointed out that the proposal:-

a) enables the redevelopment of redundant industrial land and unattractive buildings specifically rezoned by the City of Yarra for the purposes of offices and/or multi-unit residential development for these express purposes;

b) it allows the provision of new mixed-use development to occur where it is well serviced by existing and emerging educational, public transport, open space, retail, and employment infrastructure in accordance with State and Local Planning policy objectives; and

c) it provides for a significant boost to available new housing forms to compliment existing heritage stock and main road located new housing elsewhere in the municipality that would be difficult to provide elsewhere in the municipality without substantial streetscape impacts in accordance with Local Planning Policy Objectives.

Mr Scott has been retained by the Responsible Authority to supervise a review of "Built Form" within the City of Yarra. His analysis also concluded that the proposal deserves support. As to the tower element, he commented:-

The tower element of the proposal is therefore well sited in relation to its surrounds. But should there be a tower at all? The Built Form Review places a strong emphasis on maintaining the City of Yarra as a low rise city, with occasional `islands' of higher development. The important point in this location is that a high rise island is proposed by the Built Form Review along the Freeway River Edge. The subject site is tucked into a corner between two large land parcels that would be covered by Freeway River Edge objectives. As there are few built form constraints on the site's southern and western edges, there is potential to include a taller element on this south western corner of the site. It would form part of the higher rise massing along the Freeway/River frontage.

If a tower is appropriate, how tall should it be? Definitely no taller than the highest part of a new development on the Freeway/River frontage. As already indicated, the proposed height of the Gough Street design is up to 12 storeys. Our view is that the Gough Street development should be within the range 16 to 28 metres. Therefore 28 metres (above ground level) should be the maximum height for the tower in the 165 Cremorne Street development. At its south west corner, the current proposal appears to be about 36 metres in height (the height is somewhat less elsewhere due to ground level differences). This should be reduced accordingly.

The officer's report, from which the above extracts have been taken, provided a most detailed analysis of all aspects of the proposal. It also made the important and valid point that the Planning Scheme seeks to take advantage of development opportunities in marginalised industrial areas away from the residential core. By this means (the report points out) the Responsible Authority can relieve pressure on the more intact and sensitive residential hinterland. Such a philosophy gains express recognition in the MSS where, at Clause 21.04, the following strategic objectives are enunciated:-

c) emphasise major new residential development opportunities within designated mixed use areas, combined commercial/residential strips, major redevelopment sites and renewal areas, to meet the increasing demand for inner city living;

d) limit development within established residential areas, in order to protect and enhance the highly valued urban character and amenity of these locations; and

e) maintain the prevailing 19th century heritage character and low rise/human scale of the City, whilst providing opportunities for innovative, contemporary development on major redevelopment sites and renewal areas.

These provisions are of fundamental importance to the present proceedings.

The Tribunal has long held that the officer's report is a relevant consideration to be taken into account in proceedings such as this. That is not to say, of course, that a Council is obliged to blindly follow the advice of its officers. However, as was made plain in Modern Living Design & Construction Pty Ltd v Box Hill CC & Ors (1988) 1 AATR 166, reports such as this represent the professional advice available at the time a Council reaches its decision. In this case we accept Mr Pitt's submission that the report was thoroughly prepared, comprehensively addressed all relevant issues, and is a document to which we should give weight.

At the commencement of the hearing Ms Tait, a Town Planning Consultant representing the City of Stonnington, sought leave to become a party to the proceedings. By correspondence dated 2 April 2003, Stonnington had foreshadowed such an application asserting that, as the upper levels of the structure would be plainly visible from various vantage points within its municipality which lies to the south, its interest were affected by the proposal. Mr Pitt objected to Stonnington being joined. However, the Tribunal took the view that it would be difficult to make an assessment of the strength of Stonnington's claims unless it was given an opportunity to elaborate upon them. It therefore granted leave pursuant to s 60(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998.

At the hearing both Mr Rantino and Mr Pitt SC tabled and read written statements while the objectors made both oral and written submissions. Neither the Council nor the objectors sought to adduce evidence before the Tribunal. Mr Pitt called evidence from the following persons:-

* Dr. G. Gunn, an Architect who provided a peer review of the urban design aspects of the proposal.

Each witness provided a written statement of evidence on which he was

Mr Fender provided the Tribunal with a "Powerpoint" presentation of the proposal, including a detailed assessment of the development against the proposal incorporated into the Planning Scheme. The objectors provided an array of slides and photographs depicting both the existing built form and traffic conditions within the precinct.

During the course of the hearing the Tribunal conducted an inspection of the review site and the surrounding neighbourhood. It also viewed the area from the rear of one of the objector's dwellings in Cubitt Street.

We do not propose to set out a detailed summary of all the submissions and evidence put before us, but we will deal with all the matters raised by considering the relevant issues as they arise. We have come to the conclusion that, on proper analysis, the issues before the Tribunal can be addressed by posing the following six questions:-

a) Having regard to all relevant considerations, what is the appropriate starting point for assessing this proposal?

c) Have the built form/urban design issues been satisfactorily resolved?

d) Will the proposed development detrimentally affect the amenity of surrounding properties?

f) Will the proposal unreasonably add to congestion in the surrounding road network?

The Tribunal proposes to deal with each of these matters in turn.

Prior to reporting to the Council, the Planning Officer sought legal advice as to the manner in which the application should be assessed and, specifically, the relevance of the development permitted by Clause 37, Schedule 2 of the Planning Scheme. The report notes the advice that "the application should be seen as being a fresh scheme and assessed in total, though regard should be given to the existing and ongoing approval as per the Comprehensive Development Zone".

Mr Rantino sought to distance the Council from that advice. He submitted that it was "neither appropriate, nor fair that the town planning analysis be confined to the "before and after" approach adopted by the applicant and further, that the tower element "was not responsive to the area, character and amenity" and, as such, was contrary to the purpose of the Comprehensive Development Zone. In answer to a question from the Tribunal, Mr Rantino stated that he believed the permitted development was not a relevant consideration.

Mr Pitt vigorously disputed this contention. He pointed out that, unlike the conventional situation where an applicant relied on a previous permit, the approved "Wardle" development actually formed part of the Planning Scheme. It was not, for example, subject to the time limits that applied to a planning permit, and would remain as part of the Scheme unless and until an amendment took place. Mr Pitt relied on the following decisions in support of that view:-

* Austcom Pty Ltd v Buckerfield & Anor (unreported Supreme Court decision, Balmford J, 19 February 1999).

* J L Gibson & Co Pty Ltd v Prahran CC & Ors (1991/248 and 1991/784, unreported decision of the AAT, 19 June 1992).

These decisions turn on their own facts, but nonetheless serve to support Mr Pitt's submission. We are of the view that the existence of the permitted (Wardle) development is a highly relevant factor which the Tribunal must take into account in determining whether the present proposal is an appropriate one. That is not to say that other relevant provisions of the Scheme can be ignored. However, the Wardle development passed through an exhaustive process which included examination by an independent panel and subsequent Ministerial approval. It thus sets certain relevant parameters, particularly those relating to height, bulk and built form. These are now recognised by the Planning Scheme. To ignore the 1998/1999 process, and its ultimate product, would be both misguided and inappropriate. We therefore concur with the legal advice given to the Council.

We have already made several references to the policy framework and can add little to those observations. In our view, all other things being equal, there is ample policy support for replacing a disused industrial building in the inner city with a

well-designed mixed-use development which includes a significant residential component.

Mr Rantino was critical of the shift in the balance between commercial uses and residential occupation in favour of the latter. Again such a shift is consistent with policy. Moreover, the Wardle project depended largely on "penthouse" type accommodation. The residential mix of the present proposal is as follows:-

This suggests to us that the accommodation will be more likely to be "affordable" to a wider range of persons, thus fulfilling another objective of the Council's MSS.

Of particular importance, we believe, is the policy consideration that, by increasing population density in the less sensitive areas of the municipality, the pressure for redevelopment in the more vulnerable residential areas can be reduced.

It is clear from the submissions made to us that design issues and building height lie at the heart of these proceedings.

Those opposing the proposal contended that the building was too high, too bulky and would dominate the low-scale setting in which it is to sit. Those supporting the proposal contended that the quality of the architecture, its high level of detailing and the use of contrasting materials would serve to break down the effect of mass. Moreover, it was suggested, the modelling and articulation of its façade would make a positive contribution to a mono-scaled and somewhat drab industrial environment.

In making its assessment of the height and bulk issues, it is important to consider the context of this site and the manner in which the building, and in particular the tower, responds to it. The site is bounded to the south and west by two and three storey industrial buildings set in a relatively harsh environment. It is at this point that the tower rises. Existing residential properties are situated to the north and to the east. As we have previously described, all have significant setbacks from the tower element.

It would be trite to suggest that this building will have no impact on the precinct. It will undoubtedly be prominent, but prominence is not synonymous with some of the other adjectives used to describe the proposal, for example, monolithic, intrusive, ugly or even bulky.

During the amendment process which led to the Wardle proposal, the panel identified the following principles to guide development on this site:-

a) the Urban Character Strategy 1997 suggests that the site has few constraints that would predicate against the existence of a taller element to the western portion of the site;

b) the large island site gives rise to the opportunity of a taller element without significant amenity conflicts arising;

c) a 200m radius from the dominant height of the Barrett & Burston silos forms the height context within which a building in the western portion of the site would exist;

d) the topography of this part of Richmond is flat and featureless and taller elements can allow visual relief to the monotony and act as landmarks;

e) in a broader context the corridor between Church Street and Punt Road along the River adjacent to the City Link Freeway contains numerous large scale buildings; and

f) a precedent in terms of height would not be set in allowing a taller element on this site as large consolidated island development sites are rare and there would be few sites where such a development would be appropriate.

Having regard to all those principles, we believe that the present approach responds appropriately to the site, as it is recessive in form, highly articulated and well balanced.

It is noteworthy we believe that not one of the independent experts reviewing this proposal has expressed the view that the site cannot support a building of significant height. Mr McGauran found no fault with the height of the proposal at all. Mr Scott supported a tower structure, albeit while suggesting that it be lowered by approximately 6m. Dr Gunn expressed his total support. The independent panel held that a tall building (albeit in a different form) would "add visual interest" to the precinct.

The Tribunal found the Powerpoint presentation provided by Mr Fender to be most convincing. As to the question of comparison with the Wardle proposal, it demonstrated that the additional height of around 2m will be barely discernible in the context of this site. The width of the tower, viewed from the most sensitive neighbourhood (to the east) is approximately 20% less than the approved development. We believe there is little difference in design quality although we accept that, in many ways, the interface at ground level is less abrupt with the present proposal than with its predecessor.

We reject the Council's reserve position that the height of the building should be reduced by two storeys. Such a requirement would result in the unnecessary decapitation of a building which has been carefully proportioned, and we accept the evidence of Mr Fender that the outcome would be a less handsome, squat building. The originator of this suggestion, Mr Scott, was not called to give evidence and the Tribunal was thus unable to pursue that issue with him. The Town Planning Officer's support for it appears to be predicated as much upon perceived parking problems as on aesthetic considerations.

Before parting with this aspect of the matter, we turn to the objections of the City of Stonnington which were predicated on the basis that parkland and residential properties on the south side of the Yarra River would suffer a loss of amenity. We note that Stonnington's objection was lodged against the advice of Council officers and we reject the Council's contentions as fanciful. The upper part of the tower will certainly be visible, but at a distance of approximately 300m, across the river, Alexandra Avenue, the City Link Freeway and an intervening factory building. Far from creating a "unacceptable impact on the amenity", the Tribunal is of the view that the top of the tower will appear as one distant element in a heavily modified landscape, and will have no impact whatsoever on the residents of Stonnington.

In summary, the Tribunal holds that the urban design and built form of the proposal represents an appropriate response to the site and its context, and is consistent with the provisions of the Planning Scheme.

While the objectors' main concerns were based on scale and bulk, some disquiet was expressed in relation to privacy. It was suggested that views from the north and east facing balconies in particular would offer an outlook into neighbouring backyards.

As the Tribunal frequently has cause to emphasise, inner city living inevitably involves some trade-offs between amenity and convenience. Moreover, town planning controls do not seek to eliminate all opportunities for overlooking but rather, to curtail any unreasonable loss of privacy that might arise.

In the present case, the balconies in question will be separated from the rear yards of neighbouring properties by both vertical and horizontal distances of considerable magnitude. ResCode (and before it, the Good Design Guide) stipulate a 9m separation as an appropriate interval for overlooking. Even the closest overlooking opportunity in the present case exceeds that distance by many multiples.

We do however have some concerns regarding the amenity consequences of the proposed licensed café, the planned location of which is along the Balmain Street frontage, directly opposite several residential cottages located on the north side of that street. While the Tribunal is, in principle, supportive of the inclusion of a licensed café, it is somewhat surprised that its proposed location is at the closest point of the entire development with its residential neighbours. Although the Tribunal accepts that most of its patronage is likely to come from within the building, the café is the only component of the development which is likely to consistently attract evening visitors in significant numbers. It is more probable than not that visitors would park in the surrounding streets rather than in the basement, particularly during the evenings.

There is a significant likelihood, we believe, that the operation of a licensed café within 10m or so of residential properties is likely to have a deleterious impact on the amenity of the occupants of those dwellings. We note Mr Pitt's submission that the café was not fundamental to the proposal and, if the Tribunal did not support that use, the space could be converted for use as showrooms. For the reasons we have given, we do not favour the inclusion of a café at the chosen location.

It is convenient at this point to deal with the assertion that loss of views to the "Nylex clock" would affect the amenity of neighbouring residents. The Yarra Planning Scheme does not confer any right to a view. While views to the clock from the public domain may be relevant, any such loss from private property is not a relevant consideration.

The Tribunal does not believe that any significant viewshed from the public domain will be affected by this proposal.

In order to ensure the orderly provision of parking within the neighbourhood, a comprehensive traffic and parking study was carried out at the expense of three development companies with interests in the area. The present applicant was a participant in that process. The study was carried out by two well-known traffic engineering companies, Greg Tucker & Associates and Grogan Richards. Mr Hunt, a Traffic Engineer of Grogan Richards, acted as Chairman of the study process.

The results of the study, which is known as the Cremorne Traffic Study (CTS), were reviewed by an independent Traffic Engineer engaged by the City of Yarra, Mr John Piper. In addition to traffic issues (which we will later address) the CTS also derived parking ratios that, although not necessarily consistent with Clause 55 of the Planning Scheme, are considered by the Council to be appropriate for this precinct. Those rates are:-

Visitors 0.1 spaces per dwelling (on or offsite, depending on circumstances).

Parking provision for the development has been provided in a two level basement carpark as follows:-

Parking provision for the residential and office components has been supplied in accordance with the requirements of the CTS. The Council did not challenge the 10 spaces for the café/showroom as inadequate. However, the applicant submitted that the 26 spaces provided for office usage would be utilised for residential visitor parking during the evenings and weekends, times when office-generated demand would be at its lowest. At that time, 82 spaces would still be available for office usage.

The evidence of Mr Hunt, a very experienced Traffic Engineer, was that given peak demand for residential and commercial uses clearly occurred at different times of the day and week, the dual use of parking spaces was appropriate. Mr Hunt also pointed out that there was ample spare capacity available in front of industrial properties in Cremorne Street during evenings and weekends, when residential demand was most likely to peak.

Mr Rantino contended that the requisite number of spaces should be provided so that reliance was not then placed on the management of the carpark to minimise parking problems.

One needs to fully understand the actual ramifications of the Council's position. If approved, one group of parking spaces, set aside for residential visitor parking, would be idle for most of the day and many evenings, although it would be well utilised at weekends. By its side would be another group of spaces set aside for day visitors, and these would be largely idle during evenings and weekends.

In the Tribunal's view, the provision of car parking is satisfactory, even generous. ABS census data (2001) for the Yarra municipality suggests the following residential demand would be generated:-

Given the excellent public transport system which exists in the Cremorne area, and the spare capacity in front of industrial properties which would be available during evenings and weekends, the Tribunal is confident that the supply of car parking will exceed likely demand by a significant margin. The availability of public transport is one of the principle factors that attracts inner-city dwellers. The ABS data provides a strong indication that there will be spare capacity available in the carpark at all times.

As the Tribunal has frequently pointed out, it is unwise and indicative of bad planning to encourage an oversupply of car parking in the inner city. In Maurici v Moonee Valley City Council & G & M Constructions Pty Ltd, noted at [2000] 4 VPR 122, 123 the Tribunal commented as follows:-

That said, this site is extremely well located in terms of public transport. Trams, trains and buses all serve the District Centre on a regular basis. There is abundant car parking available in the area for most of the time. Certainly that car parking comes under severe pressure at peak shopping times. However, for 90% of the time, there is plenty of spare capacity. The Tribunal believes that persons residing in accommodation of this kind, be they owners or tenants, will tailor their decision to buy or to rent according to their own car parking needs. The Tribunal agrees with Mr Turnbull that inevitably there will be some "mixing and matching" as residents without cars negotiate with those families who may have two vehicles.

It is, in the Tribunal's view, a waste of resources to conservatively assess car-parking needs in these circumstances. If car parking is oversupplied, it is likely that demand will simply expand to meet the supply, thus defeating one of the fundamental objectives of the urban consolidation process, that is, to take advantage of areas with a well developed transport system.

Those observations are equally apposite to the present situation. An oversupply of car parking may well encourage rather than discourage the use of motor vehicles. Planning does not operate in an economic vacuum. Purchasers will make their decisions in the knowledge of parking availability. "Two car families" are unlikely to purchase a property if aware that only one car parking space is available to serve their needs. On the other hand, if spare parking capacity is always available, demand for spaces is likely to artificially expand to meet supply.

While Mr Pitt indicated that some additional spaces could be made available if the Tribunal so desired, we do not, for the reasons expressed above, believe it appropriate to encourage an oversupply of car parking. We are satisfied that the provision shown on the plans is more than adequate and, in this regard, we accept the evidence of Mr Hunt.

There is no doubt that, at peak times, the precinct suffers from traffic congestion. A significant portion of this peak traffic is not locally generated, but comprises vehicles seeking to avoid the major roads and intersections in Punt Road, Swan Street and Church Street.

The Council's Engineering Department reviewed the proposal and, having derived the appropriate traffic generation rates, it stated:-

Overall the trips generated from this proposal would not in themselves result in any perceived reduction in the level of service for road users in the precinct. Although in combination with the other developments, it could be expected that there would be some reduction in service levels, as detailed in Council's response to the Traffic Study, this in itself is no grounds for refusing this application.

Mr Hunt carried out a comprehensive study addressing the traffic implications of this proposal. Inclusive of Stage 1 (which is presently under construction) the proposal will add 161 traffic movements in the AM peak hour, and 157 movements in the PM peak hour. These would be distributed through the surrounding local street network and thence to the arterial system. Mr Hunt's analysis suggests that the performance of the four critical intersections will not be significantly affected by the development, and none will achieve the DoS rating > 0.95 either in the morning or evening peaks.

The Tribunal understands that this empirical analysis is technical in nature and not readily understood by lay people whose perceptions and beliefs are coloured by what they see as undue delays at intersections. However, the technical analysis provided by Mr Hunt was not challenged by the Council and indeed, it concurs with the Council's own professional assessment of the situation.

It should be noted that traffic management within the precinct was affected by road works at the time of the hearing and these, and associated temporary road closures, tended to distort traffic patterns during our inspections.

We also note that the applicant has agreed to fund a number of traffic improvements including intersection treatments which will serve both to limit "rat run" traffic, and facilitate easier movements within the local road network. There is, we appreciate, no "easy fix" to existing problems. However, some relatively low cost measures can be put in place which will assist in improving traffic flows.

Again we are satisfied that the evidence provided to us by Mr Hunt represents a fair and accurate appraisal of the traffic implications of this proposal and we accept that evidence.

Mr Rantino supplied the Tribunal with a set of draft conditions identical to those recommended by the officer in his report to the Council. These were the subject of discussion during the hearing. We make the following observations in respect of that discussion:-

a) The café, and all conditions relating thereto have been deleted in accordance with our earlier comments.

b) Conditions regarding Melbourne Water's requirements have been amended to allow further consideration of the issue of clearances above A.H.D.

c) We are satisfied that tandem spaces of 9.8m are satisfactory in the circumstances.

d) We see no need to include a rider that conditions 1(p), (q) and (r) be to the satisfaction of the Responsible Authority as the preamble to condition 1 already specifies that requirement.

e) We have deleted the "notes" in the report. The Tribunal does not have the power to place "notes" on permits. The Council is not so constrained.

We have come to the conclusion that this is a well-designed proposal that fully accords with the provisions of the Planning Scheme. Our findings are now briefly summarised:-

a) The permitted development (ie the Wardle development) is a relevant matter to take into account and provides a convenient starting point for considering various issues, particularly those relating to height, bulk and scale.

b) Both the State and Local Planning Policy Frameworks provide abundant policy support for a proposal of this kind.

c) The building is well designed and is not excessive in height given the relatively harsh environment in which the site is located. It will make a positive contribution to the urban form of the precinct.

d) The development will not detrimentally affect the amenity of neighbouring properties in any relevant sense.

e) Sufficient car parking has been provided and does not need supplementation.

f) The proposal will not add appreciably to traffic congestion in the surrounding streets, and the funding by the applicant of certain remedial works to the local road system may well result in a net improvement to traffic flows within the precinct.

g) The mix of uses as proposed is appropriate save for the café which, given its location close to residential properties, has the propensity to detrimentally impact the amenity of neighbouring dwellings.

We believe that the Council's position in this matter is untenable. It had before it a comprehensive analysis prepared by its Town Planning Officer. Quite properly, advice was obtained from its solicitors, from a consultant architect and an experienced urban designer. It chose to ignore all that advice. Its submissions at the hearing relied on the few negative passages of its consultant's advice, generally taken in isolation and out of context. The positive aspects of the advice were ignored, as was much of the relevant history. It called no evidence, the irresistible inference being that professional experts were not prepared to support the Council's stance. Having supported a very similar proposal in 1998 and 1999 the Council chose a complete about face, contending that a building of perhaps five storeys was the maximum that should be permitted. In so doing, it ignored not only a great deal of sound advice, but some key aspects of its own Planning Scheme.

The Tribunal understands the objector's concerns. It was clear from the submissions that they are concerned about the nature of the changes that are taking place in Cremorne. They demonstrated in the course of their submissions an affinity with the area and a concern with regard to the harm that may occur to social interactions. Nonetheless it must be accepted that this process of change is, in fact, a product of longstanding planning strategies for this area. It is not unexpected or ad hoc change. Rather it is a result of planning decisions made over a significant period of time.

For all the foregoing reasons the Tribunal will order that permit issue subject to conditions.

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