Victorian Civil and Administrative Tribunal|2004-08-27

Design Consortia Australia v Frankston CC [2004] VCAT 1718 (27 August 2004)

Application under S.79 of the Planning and Environment Act 1987 for review of the failure to grant a permit within the prescribed time. Business 1 Zone. Design & Development Overlay. Special Building Overlay. Clause 52.06 Car Parking. Shops, Serviced Apartments and Dwellings (in a 10 storey building). Site ( Area 1708 square metres). State and Local Planning Policy Framework. Zone Purposes. Neighbourhood character. Streetscape.. Loss of established tree. Overshadowing. Public realm amenity. Good urban design.

The order of the Tribunal is that the decision of the Responsible Authority is set aside. A permit is granted for shops, serviced apartments and dwellings in a ten level building (over basements) at 2-20 Clyde Street Frankston generally in accordance with the endorsed plans and subject to the following conditions:-

1 Before the development starts, plans to the satisfaction of the Responsible Authority must be submitted and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application, but modified to show:-

(a) The insetting of the ground floor façades facing onto Ross Smith Avenue and Balmoral Street by 1 metre for the purpose of widening the adjoining footpath;

(b) The modifications set out in the plans by Design Consortia Australia "VCAT Issue" dated 12/08/04;

(d) The replacement of the Ross Smith Avenue street tree with an advanced tree;

(e) Acoustic measures (if any) required to protect the internal amenity of the permitted dwellings in accordance with the recommendations of an expert acoustic report prepared to the satisfaction of the responsible authority;

(f) The environmentally sustainable elements recommended for inclusion by Mr Chris Barnett in his statement of evidence in application for review P1093/2004;

(g) A Streetscape / Landscape Plan providing for streetscape works in Clyde and Ross Smith Avenue which abut the subject site. This plan must include a construction zone that limits and defines the extent of works within surrounding streets. The works must be designed in accordance with the "Frankston Central Activities Streetscape Master Plan" September 1998 to the satisfaction of the Responsible Authority;

(h) A Construction Management Plan to minimise impacts on the surrounding area and the environment to the satisfaction of the Responsible Authority. The Construction Management Plan must include details of management of construction vehicles, protection of street trees and assets, construction times, vehicle routes, nuisance abatement measures and maintenance of adequate footpath width during construction within streets surrounding the subject site;

(i) A Waste Management Plan including details of the operation of the rubbish enclosure adjacent to the carriageway easement and collection of rubbish from this area to the satisfaction of the Responsible Authority. The Waste Management Plan must include hours and frequency of collection and size of collection vehicles;

(j) A longitudinal section of the ramp to the basement;

(k) Provision of bicycle parking within the basement;

(l) Car Spaces 36, 46, 89, 99, and 142 widened to at least 2.9 metres (except where the spaces adjoin the duct shown on the plans);

(o) The location and method of screening of external mechanical plant equipment on the site, in particular provision for the future installation of air-conditioning units associated with permitted apartments and dwellings.

2 The use and development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3 Prior to the occupation of the building, Lots 1 and 2 of PS441068D must be consolidated under the Subdivision Act 1988.

4 Finished floor levels as shown on the endorsed plans must not be altered without the prior approval of the Responsible Authority.

5 Any Council assets that are damaged during construction shall be re-constructed at the Applicant's expense to the satisfaction of the Responsible Authority.

6 Detailed drainage plans of the internal stormwater drainage system including method of connection to existing Frankston City Council storm water drainage infrastructure are to be submitted to the satisfaction of the Responsible Authority and approved by the Responsible Authority prior to commencement of development. These plans must include details of reconstruction of the carriageway easement to the east of the subject site including relocation of existing Frankston City Council drainage stormwater infrastructure.

7 Vehicle crossings are to be constructed to Frankston City Council standards and specifications, to the satisfaction of the Responsible Authority.

8 Before the approved uses start, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:

(a) constructed to the satisfaction of the Responsible Authority.

Parking areas and access lanes must be kept available for these purposes at all times.

9 Where the development involves work on or access to Council controlled land including roads, reserves and rights of way, the owner, operator and their agents under this permit shall at all times take adequate precautions to maintain works to the highest public safety standards.

Precautions are to include, appropriate signage to AS 1743 road works signing code of practice, the provision of adequate barricading of works, including trenches of Service Authorities and any other road openings sufficient to ensure public safety.

All relevant permits are to be obtained from Council for works within the existing road reserves in addition to the planning permit.

10 The owner must ensure that street trees in the Clyde Street Mall are protected during construction of the development.

11 The amenity of the area must not be detrimentally affected by the use or development through the:-

(a) Transport of materials, goods or commodities to or from the land.

(b) Appearance of any building, works or materials.

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

12 The loading and unloading of goods from vehicles must only be carried out on the land.

13 Any outdoor lighting of the site must be baffled to prevent light from the site causing any detriment to the locality.

14 All disused vehicle crossings shall be removed and the area reinstated to kerb and channel and paved and / or landscaped to the satisfaction of the Responsible Authority.

15 Noise attenuation must be provided by installing laminated glass of 6 to 12 mm thickness in external windows to limit noise levels in habitable rooms.

16 Mail boxes shall be provided within the development to each dwelling to the satisfaction of the Responsible Authority and Australia Post.

17 All plumbing work, sewer pipes etc. associated with the building shall be concealed from general view.

18 Power and telephone lines to the development shall be placed underground from the main points of service outside the boundaries of the site.

19 Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.

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

21 Floor levels of the proposed shops fronting Clyde Street are to be constructed with a finished floor level of 5.10 metres to Australian Height Datum (AHD).

22 The proposed reception and lobby area, located in the north eastern corner of the building must be constructed with floor levels of 5.59 metres to Australian Height Datum (AHD).

23 The entry/exit driveway of the basement car park must incorporate a flood proof apex a minimum of 300mm above the adjacent flood level in Balmoral Street. This translates to a minimum finished surface level of the apex of the ramp of 6.0 metres to Australian Height Datum (AHD).

24 The drainage system is to be constructed so that external flooding is unable to penetrate the basement car parking area.

25 All vents and staircases /stairwells are to be flood proofed to a minimum of 300mm above the applicable flood level to ensure no floodwater inlets to floor levels below the applicable flood level.

26 This permit will expire if one of the following circumstances applies:-

(a) The development is not started within two (2) years of the date of this permit.

(b) The development is not completed within four (4) years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

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

Mr John Cicero, Solicitor. Mr Cicero called Ms Jane Macy, Town Planner,

Mr John Rantino, Solicitor. Mr Rantino called Mr Kevin Van Boxtel, Town Planner and

1 This is an application to review the failure of the Responsible Authority to grant a permit within the prescribed time in respect of a permit application for shops, serviced apartments and dwellings in a ten level building (over basements) at 2-20 Clyde Street Frankston. The Responsible Authority ultimately decided that had it not been for the application for review it would have refused permission for reasons primarily relating to urban design. We ultimately have decided that the unusual isolation of the site makes the podium and tower model of development advocated by the responsible authority unnecessary. We have decided to grant a permit subject to some improvements to footpath widths at ground floor level.

2 The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject site and its locality.

3 The proposal involves retail floor space and the entry foyer to the serviced apartments at ground floor level, above that four levels for 105 serviced apartments, and above that again five levels for 71 serviced apartments (the plans tabled at the hearing incorporated changes recommended by Mr McGauran, reducing the number of dwellings by 7). The subject land is within the Frankston CAD.

4 At the resumption of the of the hearing on Tuesday 24 August the Tribunal gave oral reasons for its decision to set aside the decision of the Responsible Authority and direct the grant a permit. A summary of the Tribunal's reasons are set out below.

5 Having considered the submissions and inspected the subject land we were of the view that the significant issues in this application for review are:

6 It was common ground between the parties that the proposed mix of uses is strongly supported by the planning policy framework, and all the strategic work which is presently been undertaken by the Responsible Authority. Permanent residents are being encouraged back into the CAD, provision for short term accommodation is seen as supporting the local economy, including the tourist economy, and retail premises at ground floor level are the key to providing active street frontages at street level.

8 Clyde Street is a narrow pedestrianised roadway which appears to be functioning relevantly poorly as a retail space, but nevertheless, the proposal has shown faith in the ongoing development of the shopping centre, and proposes a group of shops fronting onto Clyde Street.

9 The Ross Smith Avenue frontage of the building, is its main frontage which is partly occupied by the foyer/reception area for the serviced apartments, and dwellings, and partly occupied by shopfront. The Applicants propose an realignment of the existing curb to provide a drop off facility resulting in the loss of a semi mature plain tree, and a reduction in the overall footpath width on this frontage of the site. The existing footpath and tree contribute to the very limited amenity of Ross Smith Avenue. We do not consider that the tree should be an obstacle to providing an appropriate drop down and pick up point for the proposed service apartments, however, we do think that the façade of the building at ground floor level fronting onto Ross Smith Avenue, should be inset at least 1 metre to effectively widen the remaining footpath and the tree should be relaced with an advanced specimen to improve the amenity of the public realm at this location.

10 The Balmoral Street frontage of the site comprises shop front, stairway, car park ramp and loading bay. Mr Van Boxtel was critical of the "inactive" aspects of this proposed frontage, in particular the car park ramp and loading bay. We do not consider it practicable to provide the car park entry off the laneway, it might be feasible to provide a loading bay off the laneway, but again it would not be as practical a solution as that currently proposed. If the laneway cannot be used, then Balmoral Street is the best option.

11 However, one of the disputed permit conditions reflects a concern about site distances associated with the car park entry ramp and it is our concern that the combination of, the very narrow footpath in this location, and the volume of traffic movements associated with the car park entry, are likely to diminish the safety and amenity of pedestrians. For these reasons we believe that there should be a similar indentation of the façade at ground floor level, to that proposed for the Ross Smith Avenue end of the building.

12 Mr Van Boxtel expressed concern about the lack of activisation of the laneway frontage of the site. Ms Macy on the other hand argued that the laneway, like Clyde Street, provided an east west connection between Ross Smith Avenue and Balmoral Street, and that the better approach from an urban design perspective was to focus on improvements to the appearance and function of Clyde Street, while leaving the laneway to continue to perform its existing service function. Mr Chaney supported Ms Macy's conclusion, and we agree with their views on this matter.

13 The Responsible Authority submitted that the proposal was essentially for a sheer 10 storey building, built to the site boundaries. In the Responsible Authority's view the building should have a three to four level podium, with a reduced floor plate above the podium level.

14 In a general urban design sense the podium and tower approach to taller buildings is a useful concept because:

* the podium level can be set to respect an established streetscape character, or to define a preferred streetscape character, and;

* the insetting of the tower can create a sense space between buildings at the upper levels and can be important in creating a degree of amenity for the occupants of upper levels on adjoining buildings, particularly residential occupants, etcetera.

15 However, in our view these are not considerations which are of great importance in the current circumstances ie:

* The subject land is essentially an island site surrounded by roads and a laneway. The site is accessed via two short streets, which are very utilitarian in their function and character. The site is not prominent and it is only the upper levels of the building which were highly visible.

* Clyde Street is a very narrow pedestrianised street. The existing building on the land has a weather protection canopy, and one is proposed for the proposed building. We accept Mr McGauran's opinion that the setting back of the upper levels of this building on this façade, would serve no useful purpose.

* The architecture of the building does articulate the building into three parts, a bottom podium, a mid section, and a top. Mr McGauran recommended some further changes to the top, to enhance this architectural expression.

* In relation to overshadowing, it is the overshadowing of Clyde Street which we believe is the important effect. Any taller building on the subject land will increase the overshadowing of Clyde Street, any practicable insetting of the upper levels of the subject building will have a very limited impact on the extent of overshadowing, and is not warranted from this perspective.

16 We doubt whether or not the existing policy framework is intended to protect vistas from the railway land to the east across the CAD to the bay. The existing DDO, and the building heights it encourages, challenges such a notion.

17 In practice buildings on the railway land, are more than one hundred metres from the subject land and would enjoy panoramic views across the CBD of the bay from higher levels. The effect of the proposal will be a building in the view, not a loss of view.

18 While one could conceive of, and perhaps hope for, a level of development within the Frankston CAD which represents a threat to views across the CAD from the east we think that such a scenario would more properly be regarded as a planning success, rather than a planning failure.

19 The main amenity issue, other than overshadowing already discussed, is there a future relationship between the proposed building, and other tall buildings which may be developed on adjoining sites.

20 Mr McGauran suggested that 9 metres between habitable room windows on adjoining buildings, and something less than this, say 7 to 8 metres, between the face of balconies on adjoining buildings, would result in an acceptable amenity outcome. We agree that this is an appropriate rule of thumb. In our view, while Frankston is a considerable distance from the centre of Melbourne, development within its CAD will ultimately be a highly urban form of development.

21 Clyde Street is 9 metres wide, and therefore windows and balconies built to the west boundary of the site should not unduly impact on the amenity of any building built to the west.

22 Mr McGauran proposed a number of changes which provides a satisfactory resolution to the amenity issue in respect of any building built on the land to the east, provided that any such building is setback from its west boundary a similar distance to that of the proposed building.

23 Mr Van Boxtel and Mr Chaney both suggested that the Responsible Authority was keen to avoid a first in best dressed scenario, with early buildings compromising the development potential of adjoining land. we agree with this approach, although we observe that it would be important to have regard to the characteristics of the sites in question. For example, the east west dimension of the subject land is substantially smaller than that of either the land to the east or the west, and in this scenario we would say that somewhat larger setbacks might be appropriate on the larger sites, because on larger sites the development potential of the site is less likely to be significantly compromised.

24 It follows from the above reasons that it is our conclusion that the decision of the responsible authority should be set aside and a permit issued.

25 In deciding the conditions to be included on the permit we have had regard to the "without prejudice" conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from my reasons.

Environment Act 1987

Design Consortia Australia v Frankston CC [2004] VCAT 1718

At a glance

Court

Decision date

Source

Judgment (87 paragraphs)

Design Consortia Australia v Frankston CC [2004] VCAT 1718 (27 August 2004)

Parties

Legislation Cited (1)