Deal Corporation v Stonnington CC [2010] VCAT 982

Deal Corporation v Stonnington CC [2010] VCAT 982 - VCAT 2010 case summary — Zoe

[45]

The Deal Corporation applied to the Council for a permit construct a seven storey residential development on land currently used as a car park, located to the rear of commercial buildings facing the south side of Greville Street, Prahran. Partial demolition of buildings fronting Greville Street and the construction of a first floor restaurant is also proposed.
Applications to amend permits authorising the use of existing buildings in Greville Street were also made. The applications sought to amend car parking requirements relating to those uses.
The Council gave notice of the applications and received 80 objections to the proposal.
The Council failed to grant a permit or to amend the permits within the prescribed time. The Deal Corporation have applied to the Tribunal in order to obtain decisions on the applications.
The Council subsequently decided that it would have refused the application for the seven storey building on the following grounds:
1. The proposed seven storey building dominates the prevailing intimately-scaled character of the highly valued and significant heritage area.
2. The proposal is contrary to the objectives of the Heritage Overlay and Clause 22.04.
3. The proposed development provides unsatisfactory access and layout of car parking and bicycle facilities.
4. The proposed development does not provide any loading/unloading area an-site.
Twenty five objectors have also lodged statements of grounds opposing the development.
With respect to the applications to amend the permits, the Council decided that had it not been for the applications for review, it would have amended the permits as requested.
The development of this site for a higher density residential use is supported by applicable policies and zone provisions. There was little dispute between the parties on this point. While the Council submitted that a five storey development would be acceptable, the objectors submitted that the planning scheme and the site context supported at most a three storey development. The dispute in this matter therefore centred primarily on the height, scale and form of the development, and the impact of these on the heritage significance of Greville Street and on the amenity of dwellings located to the south of the site. The principal issues in dispute are:

[50]

It was the applicant's submission that the consideration of this proposal's impact on the heritage place needs to be undertaken within a strategic context. In particular, the review site forms part of a principal activity centre within which the maximisation of development potential is encouraged. Mr Pitt acknowledge that the existence of the heritage overlay represents a potential constraint on development because the overlay requires a decision about whether the proposed building has an unacceptable affect on the significance of the heritage place.
Mr Pitt relied on the evidence of Ms Brady in support of his submission that the proposal is acceptable in this heritage context. Mr McGuaran also provided urban design evidence which at least in part, complemented Ms Brady's assessment of the building and its affect on the heritage place.
It was Ms Brady's evidence that the heritage place is the totality of the HO126 which is a large, diverse and predominantly commercial area generally following a linear form along Chapel and Greville Streets[1]. Ms Brady referred to and summarised the main points contained in the statement of significance for the heritage place which emanate from the 1983 Prahran Conservation Study and the 1992 Prahran Character and Conservation Study. The statements emphasise the commercial and retail development through the 1880's to the early twentieth century, which enabled Chapel Street to rival the Melbourne CBD as a shopping destination. Ms Brady recognised the level 1 status of the Greville Street streetscape and the A2 graded buildings on and adjoining the review site on the south side of Greville Street. It was Ms Brady's evidence that the Greville Street commercial area is characterised by lower scale development which have larger buildings behind and with low scale buildings juxtaposed with more substantial buildings. It is an area which has a history of change, a characteristic which is reflected in the Leggets development undertaken in the 1980s.
It was Ms Brady's evidence that in this context, the proposed seven storey building's impact on Greville Street is acceptable because:
- The building needs to be considered in the context of the history of change which has occurred to the rear of the commercial buildings, including the Leggets development, which provides a backdrop to Greville Street and the HO126.
- The building will be setback from the Greville Street streetscape which will remain substantially intact. The proposal cannot be regarded as an infill development within Greville Street and as a consequence the graded buildings in Greville Street will continue to contribute to the significance of the place.
- While the proposed building will be visible from vantage points within the heritage place, it will provide a contemporary contrast to the heritage place in a manner which is common within and abutting HO126, and in a manner which has become readily acceptable.
With respect to the demolition of part of the face brick walls at first floor level of 120 - 122 Greville Street, and the first floor infill, it was Ms Brady's evidence that the valued elements of the buildings are retained, and the setback of the first floor infill ensures that the outdoor seating area between the buildings continues to be read as a "laneway". Ms Brady regarded the first floor infill as a contemporary insertion which is an acceptable response to the significance of the place.
We were also referred to a number of examples where higher built forms have been successfully juxtaposed with lower, heritage buildings or have been constructed behind heritage streetscapes. It was submitted that this is, or at least can be, a legitimate approach to the design of contemporary buildings in a heritage context. We accept that this approach is an appropriate design response to this heritage context, but the extent to which a particular proposal will be acceptable will be dependant upon a range of factors including the site's physical context, the significance of the heritage place, the design of the proposal, and the range of polices and provisions applicable to the site. A design which may be acceptable in a Central activities district context, may not be acceptable in a principal activity centre when its immediate context is low scale and intimate.
While we accept that the HO126 covers a wide and diverse area in which large buildings are a significant component, the immediate context of the review site, in particular Greville Street, exhibits characteristics which are immediately apparent to even the casual observer, and which differentiate this locality from Chapel Street and other precincts within HO126. Greville Street in the vicinity of the review site is relatively narrow, the scale of abutting buildings is one and two storeys, the Victorian and Edwardian shopfronts and upper level facades are relatively intact. There is an intimacy to the scale of Greville Street which Mr Raworth described as being part of the "ethos" of modern Prahran.
Our observations and assessment of Greville Street are consistent with its designation as a level 1 streetscape and the grading of many of the buildings as A2. The combination of these factors supports Mr Raworth's assessment that the significance of Greville Street is of the highest order of local significance.
In designing a new building to respond to this heritage context, the Council's heritage guidelines[2] provide reasonably clear direction. The guidelines call for buildings which enhance existing architectural qualities of the area. Contemporary buildings are contemplated provided they adopt an understated character and do not visually dominate the streetscape in height, bulk or size. Reproduction is discouraged.
We agree with Mr Raworth that the proposed building adopts a degree of visual dominance when viewed from within Greville Street and the wider heritage area, in particular from the west. The visual dominance will be especially pronounced when viewed from Grattan Gardens (opposite the site on the north side Greville Street), from within Grattan Street and the Grattan/Greville Street intersection, from directly opposite 120 - 122 Greville Street, and from opposite the single storey building at 110 Greville Street. The visual dominance does not only derive from the building's height and the fact that it will be visible above the Greville Street shops, but it is compounded by the building's continuous length which extends over a distance of some 45 m.
The fact that the building sits behind the Greville Street buildings which are to be retained, is beneficial from a heritage perspective. We acknowledge and applaud that outcome. Similarly the fact that the building will be visible above and behind those buildings is not of itself an indicator of visual dominance. We are also satisfied that the building materials on the northern façade featuring glazing, glass balustrades, dark metal panelling and dark steel screens, are appropriately low key. However, the combination of the height, the degree of visibility from important vantage points to the north and west, the length of the building, and its proximity to Greville Street despite being setback about 12 m, all contribute to our conclusion that the proposal in its present form will assume a degree of visual dominance which will disrupt the low scale, intimate form of Greville Street.
It was the applicant's submission that notwithstanding the height, scale and form of the building, it is acceptable in its context because the site is located in a principal activity centre and because there is significant policy support for the maximisation of development potential of site's in these locations. Mr McGuaran referred to the Chapel Vision Structure Plan[3] in support of his evidence that the Council's latest strategic planning encourages a level of change in this locality[4] and that the proposal is consistent with that strategic direction. Mr McGuaran emphasised that the proposal at a height of about 20 m is within the parameters of a five storey commercial building. Mr McGuaran also referred to a number of recent Tribunal decisions which had approved developments in the broad vicinity of the review site and which had relied on the strategic direction provided by Chapel Vision rather than its preferred heights.
It is appropriate that we record our findings about the weight which ought to be accorded to Chapel Vision. It is a document which has been adopted by the Council and we regard it is a document which reflects the Council's latest thinking on strategic planning for the area. Under section 60(1A)(g) of the Planning and Environment Act 1987 it is a document which we may consider if the circumstances appear to so require. It is not however a document for which the Council has sought authorisation to prepare a planning scheme amendment. We agree with Mr Pitt that it is a matter of conjecture as to whether the Minister would accept Chapel Vision as being consistent with the State Planning Policy Framework.
We do not intend to embark on a forensic examination of Chapel Vision nor the broader policy framework contained within the planning scheme. We are content to record our findings that this site's strategic context encourages its development for higher density residential uses, but that the scale of the development is constrained by the heritage overlay. We have not been persuaded that the strategic context supports a building which impacts on the heritage place to the extent that this building does.
We are less concerned about the minor demolition works to 120 and 122 Greville Street and the contemporary infill above the outdoor seating area. We agree with Ms Brady's evidence that valued elements of the buildings are retained, and the setback of the first floor infill ensures that the outdoor seating area between the buildings continues to be read as a "laneway".
It was the Council's submission, supported by Mr Raworth's evidence that an acceptable outcome could be achieved by the modification of the building. The deletion of two mid levels and changes to the western elevation treatment were put forward.
We agree with Mr Raworth that the deletion of the top recessed level would have little appreciable benefit on the building's presentation to Greville Street. The deletion of two mid levels as suggested by Mr Raworth would effectively conceal the building from most key vantage points in Greville Street. It would also lead to the loss of 26 dwellings, assuming the internal configuration is retained.
On balance we are satisfied that the deletion of one mid level and the retention of the recessed top level, will be sufficient to reduce the visibility of the building to a level which is acceptable in heritage context. This amounts to an effective reduction in height of at least 3.0 m based on the floor to ceiling heights represented in the application plans. With this reduction we appreciate that the building will be visible from key vantage points in Greville Street but it will not be visually dominant.
We have also adopted Mr Raworth's recommendations about the treatment to the western elevation and incorporated these changes into a permit condition requiring the submission of amended plans.

[52]

Mr Waldon on behalf of objectors and the objectors who also appeared outlined their concerns about the impact of the proposed building on the amenity of dwellings to the south of the site and in the area generally.
The objectors submitted that the evolution of planning scheme controls in this area and the existing Local Policy Framework applying to this locality contemplates a two storey development of the site. It was further submitted that the existing policy framework combined with the application of the heritage overlay had created a reasonable expectation among residents that a development of around two storeys represented an outcome contemplated by the planning scheme. Mr Waldon submitted that Chapel Vision which specifies a 3-5 storey preferred height is not a document which had been subjected to exhibition procedures or independent scrutiny by a panel. To the extent that it represents Council's current planning for the area, this has emerged in the absence of any involvement by residents. Mr Waldon submitted that a seven storey development represented a quantum leap from the existing provisions of the planning scheme[5] and that a 2 to 3 storey building would represent an appropriate response to the site's strategic and physical context.
The objector's interpretation of the existing planning scheme's policies and provisions is constrained and represents a too literal interpretation of policies which are not intended to be applied literally or prescriptively to every site. A reading of the policy framework in its entirety (including the State policy framework) and of the zone provisions leads us to the conclusion that a site having an area in excess of 1000m2, located within a principal activity centre, within 50 m of a railway station, and zoned Business 1, is a site upon which a building of some substantial scale is encouraged. As we have stated previously the appropriate scale and height of a development will be determined by, among other things, the specific characteristics of the site, the nature of its interfaces, the design of the proposed building, and on the basis of an assessment of its amenity impacts.
It is also of some significance that in assessing this proposal against those provisions of the local policy framework which call for developments to respond to existing context, part of the existing context is a five storey apartment building adjoining the review site to the south.
The objectors identified the following specific amenity impacts.

[55]

These principles have been adopted, applied and reinforced by the Tribunal on many subsequent occasions[7] by the Tribunal.
We acknowledge that the proposed building, even at the reduced height we have required, will impact adversely on the enjoyment of views currently obtained from a number of dwellings in the Leggetts development. Having regard to our findings about the policy framework and zone provisions applying to this site, we are unable to conclude that the loss of views is a factor which ought to determine what type of development can be permitted on the review site.
A related issue identified by Mr Waldon was that the dwellings in the Leggetts development would suffer a decline in property values consequent upon the loss of views. The relevance of the effect of a proposal on land values is a matter which the Tribunal has considered on many occasions over the years. The Tribunal's views on the matter range from findings that it is not relevant, to findings that it is relevant but that its relevance must be made clear[8]. Mr Waldon submitted that this proposal's adverse affect on the value of adjoining dwellings is relevant and that it is an indicator of the amenity impacts the residents of those dwelling will experience primarily as a consequence of the loss of views.
Two points need to be made about the submissions concerning property valuations. Firstly, any consideration of the affect of a proposal on property valuations needs to be undertaken as part of the total assessment of a proposal's impact, with those impacts being weighed against the raft of planning scheme policies and provisions which influence the future use and development of land.
The second point is that land valuation can be a complex business. There is for example a temporal dimension to the issue. That is, over what time frame should the valuation of a property be assessed? Will an immediate loss of value be offset by a longer term increase in response to ongoing development within a locality as a consequence of the implementation of planning policies? What impact on values will the replacement of a car park with a residential development have on the values of abutting properties? The assertion that a proposal will adversely affect the value of nearby properties must therefore be treated with caution. In the absence of properly tested, expert valuation evidence we are not able to arrive at informed conclusions about the affect of this proposal on the value of other properties in this locality.

[56]

The objectors raised concerns about the overshadowing impact of the proposal. It was submitted that the lower levels of the Leggetts development would in particular be adversely affected, as would Leggetts Lane. Mr Waldon noted that the shadow diagrams prepared by the applicant were based on the equinox and not the winter solstice, and did not take into account the combined impact of the proposal and of another proposal for a development of the Station Hotel to the west of the review site[9].
In response to questions from the Tribunal, Mr Waldon was unable to identify any provision of the planning scheme which requires shadow impacts to be assessed at the winter solstice. Mr Waldon did refer to the Design Guidelines for Higher Density Residential Development[10] to which regard should be had in assessing the design and built form of residential development of four or more storeys. This document provides general guidelines about shared access to outlook and sunlight, but they do not amount to a requirement to rely on the winter solstice as a basis for undertaking the assessment.
Mr Twite provided a detailed assessment of the shadow and daylight impacts of the proposal and while he acknowledged that additional shadows will be cast onto the apartments to the south and the town house to the south east, he concluded that the impact is acceptable in the context of a principal activity location. We agree with that evidence.
The proposed building is setback 6.2 m from the north facing habitable room windows of the dwellings to the south. While Clause 55 of the planning scheme includes specific requirements for solar access to existing north-facing habitable room windows, the Design Guidelines for Higher Density Residential Development does not contain an equivalent provision[11]. We are satisfied that the separation between the two buildings is sufficient to ensure that adequate solar access is available to neighbouring dwellings, having regard to the site's principal activity centre location.
We also note that the balconies in the proposal are setback between 6.4 m and 13 m from balconies and habitable rooms in the Leggetts development. Screening is provided to those balconies located within 9 m. This is consistent with the relevant Clause 55 standard B22 relating to overlooking. Objective 2.9 of the Design Guidelines for Higher Density Residential Development suggests that the Clause 55 standard is the appropriate standard for the protection of visual privacy.

[80]

All plant and equipment (including air-conditioning units) shall be located or screened so as to minimise visibility from any of the surrounding footpaths and shall be baffled so as to minimise the emission of unreasonable noise to the environment in accordance with Section 48A of the Environment Protection Act 1970 to the satisfaction of the Responsible Authority. Ventilation systems must be designed and installed in accordance with relevant Australian Standards.
The use and development must be managed so that the amenity of the area is not detrimentally affected through the transport of materials, goods or commodities to or from the land appearance of any building, works or materials.
The loading and unloading of vehicles and the delivery of goods to and from the premises must at all times be conducted entirely within the designated loading bay or from nearby publicly designated loading bays in a manner that limits interference with other vehicular traffic to the satisfaction of the Responsible Authority. The loading and unloading of vehicles and the delivery of goods to and from the premises must only occur between the hours of 7am and 10pm Mondays to Saturdays and between 9am and 10pm on Sundays or public holidays to the satisfaction of the responsible authority.
All screening devices designed to limit overlooking hereby approved must not have more than 25% openings or they must be of solid translucent panels, permanent, fixed and durable, and designed and coloured to blend in with the development, installed prior to occupation and maintained thereafter to the satisfaction of the Responsible Authority.
All walls on or facing a boundary must be cleaned and finished to the satisfaction of the Responsible Authority.
All services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
The level of the footpaths and laneways must not be lowered or altered in any way to facilitate access to the site.
External lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the Responsible Authority.
Bottles and rubbish must not be removed from the hereby approved commercial uses between the hours of 11pm and 7am the following day.
Noise emanating from the subject land must not exceed the permissible noise levels when determined in accordance with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1, to the satisfaction of the Responsible Authority. Any works required to ensure and maintain the noise levels from plant and equipment areas are in compliance with this policy must be completed prior to the commencement of the use or within 3 months of the occupation of the site and maintained thereafter, all to the satisfaction of the Responsible Authority.
The provision of music and entertainment on the premises must be in accordance with the State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2.
Equipment, services, architectural features or structures of any kind, including telecommunication facilities, other than those shown on the endorsed plans must not be located above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority.
A maximum number of 30 seats in the restaurant hereby approved must be provided to the satisfaction of the Responsible Authority.
The sale and consumption of liquor shall only occur within the licensed area between the following hours; Sunday - Wednesday 7am to 11pm, Thursday - Saturday 7am to 1am the following day.
This permit will expire if one of the following circumstances applies:

At a glance

Court

Decision date

Source

Judgment (95 paragraphs)

Deal Corporation v Stonnington CC [2010] VCAT 982 (11 May 2010)

Parties

Legislation Cited (2)