Design Consortia Australia v Yarra CC [2009] VCAT 2573 - VCAT 2009 case summary — Zoe

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Design Consortia Australia v Yarra CC [2009] VCAT 2573

[2009] VCAT 2573

Victorian Civil and Administrative Tribunal|2009-12-02

At a glance

AI case summary

Result

appellant. The decision of the Responsible Authority is set aside. A permit is granted subject to conditions set out in Appendix A, allowing development of a residential apartment complex of up to nine...

Key principles

The Tribunal concluded that the subject site at 4-16 Garfield Street, Richmond constitutes a 'strategic redevelopment site' within the meaning of Clause 12.01-2 of the Yarra...
The Tribunal determined that the additional two storeys (taking the building from seven to nine storeys) were acceptable because: (a) the site is a strategic redevelopment site...
The Tribunal found that the setbacks from Garfield Street (1.13m at ground/first floor, 3.1m at levels 3-4, and 5.5m at levels 5-8) combined with strong façade articulation and...
The Tribunal accepted that the sub-basement protrusion of 1.2m above Garfield Street level, with balconies lowered to 0.9-1.15m above footpath level, provided acceptable...

Issues before the court

Whether the subject site qualifies as a 'strategic redevelopment site' under the Yarra Planning Scheme, despite not being mapped in Figure 2

Plain English Summary

The Victorian Civil and Administrative Tribunal approved a nine-storey apartment building in Richmond, overturning Council's refusal. The Tribunal found the site was a 'strategic redevelopment site' suitable for higher density housing due to its proximity to public transport and shops. The Tribunal ruled that under local planning policy, it was better to have a clearly tall building (nine storeys) than an awkward intermediate height (seven storeys), provided it had proper setbacks and good design. The building's setbacks from the street and neighbours were found acceptable, and specific conditions were imposed to improve privacy and design details for some apartments.

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Judgment (120 paragraphs)

[1]

Design Consortia Australia v Yarra CC [2009] VCAT 2573 (2 December 2009)

[2]

[43]

Clause 21.05-2 Urban design includes Objective 17[2] with the title "To retain Yarra's identity as a low-rise urban form with pockets of higher development". Strategy 17.2 relates to issues relevant to high-rise pockets of development and states that development on strategic redevelopment sites should "generally be no more than 5-6 storeys ..., and then sets out a series of criteria which can be used to support higher buildings (though some of these appear to have no nexus with urban design issues[3].
A question that was extensively canvassed in submissions and cross-examination of Mr Milner and Mr Sheppard was whether Council's policies relating to strategic redevelopment sites (Clause 21.05-2) apply to this site or not. We have considered how to interpret the strategies within Objective 17, depending on whether the term "strategic redevelopment sites" had leading capitals or not[4]. We have concluded that it is reasonable to interpret Figure 2 (which is stated as being "indicative only") as confirming the most notable, but not all, strategic redevelopment sites. In the absence of any wording that specifically provides otherwise, we conclude that Objective 17 and the relevant policies should also apply to any other sites that meet the criteria for strategic redevelopment sites as set out in Clause 12.01. It would seem nonsensical to us that otherwise suitable sites could only be classed as strategic redevelopment sites after being included in Figure 2, which would require a planning scheme amendment. Such an approach, would in our view be inconsistent with the strategic directions of Melbourne 2030 and Clause 12 that views sites with particular characteristics as strategic redevelopment sites and encourages their development for higher density residential and mixed use.
In our view, Council's previous decision to accept a seven-storey development on this site acknowledges, at least implicitly, that this is a strategic redevelopment site and the policy that affects the adjoining residential area, namely for low-rise development, does not apply to it. It is not open to us to apply the local planning policies in a literal manner, as this would lead to lesser development than has been already approved.
In this respect, we conclude that much of the cross-examination of Mr Milner that related to whether this site formed part of a pocket of high-rise associated with other tall buildings - being the Housing Commission towers to the east, or the tall commercial building on the corner of Elizabeth Street and Shelley Street, to the north - was of limited value[5].
The question then is, and this is the most important issue in this case: are an additional two storeys acceptable in the site's context? Messrs Milner and Sheppard thought so, and Mr Hutson thought not.
Given our conclusion that this is a strategic redevelopment site, the criteria to assess an increase over the 5-6 storeys proposed in policy (Strategy 17.2) include:
- Significant upper level setbacks
- Architectural design excellence
- Positive contribution to the enhancement of the public domain
- No off-site amenity impacts
While he agreed the western side of the site, adjoining the railway line, could support a building to 5-6 storeys, Mr Hutson considered that the additional two storeys proposed for the tower would dominate views from Garfield Street and Regent Street and from west of the railway reserve. He considered that the site is not a landmark site and there are "no specific contextual conditions that encourage a building of the height proposed; to the contrary, it would be an inappropriate insertion into the urban fabric around the subject site."
Mr Sheppard considered that the present industrial character of the MUZ is not highly valued and that this is an area where change is expected, so that the focus should be on the area's future character. This can be guided by policy directions set out in the Planning Scheme at (Clause 21.05-2):

[45]

It seems to us that the high rise element of this proposal satisfies the broader strategic aesthetic set out in the local planning policy at Objective 17.2. This aesthetic is one of pockets of taller buildings, rising above a plinth of low-rise development. It seems to us that, if this aesthetic is to be successful, the pockets of high-rise development should provide a clear contrast with their surroundings. In the context of the Richmond area, an effective building should not be half-way between low-rise and high-rise. In this context, it is acceptable that taller buildings would dominate closer views in ways that would otherwise be unacceptable.
In effect, while this urban design aesthetic of occasional high buildings amongst a base of low-rise buildings is not commonly promoted in other municipal policies, we believe that the key to its success is that, where it is applied, it should be applied fully and consistently. Where a strong contrast in building height may be fairly judged as discordant in one policy setting, it can be judged as appropriate in this setting. We do not accept that there is anything intrinsically wrong in having an occasionally dominant building. The fact that strategic redevelopment sites, whether mapped in Figure 2 of the Planning Scheme or emerging in response to the criteria of Clause 12.01, are rare will ensure that such examples of an aesthetic of contrast will also remain rare.
From our site inspection and examination of the photomontages, we are concerned that a seven-storey development would be neither high-rise nor low-rise. The photomontages have been prepared for viewpoints relatively close to the site and, using these, it is easy to establish that the seven storeys of the proposal, by themselves, would be visible but as a rather large, inelegant lump. From further away, where there is a view available, the seven storey structure will be clearly visible, but still achieving neither one thing, nor the other. In this context, we consider that the additional two storeys would better fulfil Council's urban design policies.
We have considered the issue of any amenity effects of the tower structure or other aspects of the proposal later in this report.

[47]

Council and Mr Hutson were concerned that the tower, from the third-floor level upwards, is too close to Garfield Street and that this would excessively dominate this narrow street. We have concluded that the design of the building demonstrates sufficient upper level setbacks and overall design excellence as to satisfy the criteria of Objective 17.2 and that the building's setback is therefore acceptable.
The proposed building effectively abuts the street for the first three levels, has a 3.1-metre setback for the next two and a 5.5 metre setback for the top four levels. The face of the building, at all levels, is strongly complex, being well articulated by a combination of balconies, changes in materials and use of different colours. Both sides of the façade of the top four levels, the tower proper, are also angled back slightly from Garfield Street, further differentiating this element from the levels below.
Mr Hutson's concern was that the tower's setback from Garfield Street would be insufficient to prevent the tower dominating this street.
Our experience is that the closer one is to a tall building, the less visible is its upper levels: they are too far out of one's normal view. As we observed earlier, the upper elements of a tall building will progressively come into one's comfortable view line as one moves away from the site; but, of course, the available view points will also diminish as one moves away. Mr Hutson agreed, in response to our questions, that the further away a viewer is from the site, the more prominent would be the tower; the closer, the less prominent; also that it would be acceptable to increase the extent of development up to seven storeys.
In this case, we conclude that the combination of the 5.5 metre setback for the top four floors (remember, it is only the top two that are effectively under contention) together with the narrowness of Garfield Street itself, renders the effect of the top two levels acceptable in terms of Objective 17.2.
Objective 27.1, of Clause 21.03, is also applicable to this locality, and in our view appropriately so, with its non-residential character and larger sites:
- Strategy 27.1 Allow flexibility in built form in areas with a coarse urban grain (larger lots, fewer streets and lanes).
With respect to Clause 22.10-2 Built form and design policy, we also accept Mr. Sheppard's opinion that this semi-industrial area is not one with a valued neighbourhood character and that the design meets the other general objectives of this clause.

[49]

It is our view that the substituted plans provide an acceptable interface to Garfield Street at the street level. The proposed development has a sub basement that protrudes in the order of 1.3 metres above the ground on the Garfield Street frontage. This is necessary to enable the ground level apartments on the western side to be at ground level. The effect of this is that apartments fronting Garfield Street will be higher than the street level. Mr Hutson was critical of this outcome as this potentially creates a visual separation between pedestrians and balconies.
In the substituted plans, the balconies of the ground floor apartments and planters have been lowered by 0.3 metre, so that the balconies are 0.9 to 1.15 metres higher than the Garfield Street footpath. We consider that this is a satisfactory design outcome. The variance in height does not prevent casual interaction between people on the footpath and in the apartments. It also removes the need for fences that can prevent casual interaction. We agree that the raised floor levels should not be an impediment to interaction and casual surveillance, provided that the planting materials are low rise ground covers and the like that do not become a barrier to line of sight and interaction.
The materials and textures of the Garfield Street façade has been also a matter of on-going refinement. We consider that the façade treatment to the ground floor level has been bland and would be improved by the use of textured stone or similar to become more finely textured and interesting.
We agree with Mr McGauran's written advice to Council in which he indicated that the dwelling over the basement entry should have a distinct treatment to provide visual termination and diversity. We agree that the substituted plans illustrate that intention. We also concur that further details of the panel lift wall to the basement need to be provided to ensure that it will be designed to be a significant visual element in Garfield Street façade. We consider that these are matters of fine detail that are best considered in selection of the final palette of materials and colours. The conditions of the permit should ensure that this occurs.

[51]

Dwellings fronting Shelley Street are located to the east of the review site, and dwellings in a former industrial building are located to its south, creating two sensitive interfaces. We agree with the submissions that the interface to the southern properties is acceptable. The proposed building is setback to the southern boundary 3.8 metres at the second level, 9.4 metres to the third level and 12.9 metres to the fourth level. Screening is provided to windows, and the heights and setbacks are largely consistent with those of the refurbished building. The shadows cast by the development will be significantly less than the shadows cast by the existing building on the land.
The expert advice generally concurred that the setbacks and heights to the eastern (Shelley Street) residences are satisfactory. The proposed development abuts 32 Shelley Street for only 3.4 metres of its 8 metre rear boundary. Adjacent to 34 to 40 Shelley Street, the development is setback 3 metres to Level 1 and 5.5 metres to Level 2. The eastern wall of the ground floor encroaches above the parapet, but is screened by the retaining wall. The shadow diagrams show a slight increase in shadows on the private open spaces for 36 and 40 Shelley Street, but these meet the required standard.
Overlooking of Shelley Street residences from the development is prevented by the inclusion of screens on the east facing windows and balconies within 9 metres of the boundary. We also note that the existing saw-toothed wall on the eastern boundary is to be retained. This will prevent overlooking of the Shelley Street residences from dwellings at the ground level and much of the first floor of the development. Mr Burun, representing his parents who own much of the Shelley Street properties, expressed general satisfaction with the design of the eastern façade.
Submitters were concerned with the visibility of the taller elements of the development from the rear yards of the Shelley Street properties. Cross sections of the development illustrate that a person standing in the rear yard of nos.36, 38 or 40 Shelley Street is likely to see only the second floor of the eastern building, and this will screen the taller building behind it. A person in the rear yard of no. 36 Shelley Street may see the upper storeys of the tower. The distance between viewer and the taller tower ranges from 39.5 metres to 53.3 metres. We find the separation of the taller element of the development from the established residential dwellings to be acceptable. The review site forms part of a relatively dense, inner city built form and viewing taller elements in a distance is a common feature in this area, as described in the planning policies. We consider that views of the taller building will not cause detriment to the amenity of the residents to the east of the review site.

[53]

We understand from the parties that the design of this development has undergone a number of iterations that have been influenced in part by comments by Council and Mr McGauran. In December 2008, McGauran found that an unacceptably large number of units to be reliant on borrowed light to bedrooms and recommended that this be limited to no more than 10% of units. We find that the substituted plans meets this benchmark. We concur with Mr Hutson and Mr McGauran's advice that a number of minor design improvements that are still required to provide satisfactory amenity to their residents. These changes include:
- Realign the bedroom windows in the light court of Units G10 and G11, 1.11 and 1.12 so they are offset to provide greater visual and acoustic privacy.
- Install screening devices to unit 1.29 to minimise overlooking and to allow middle distance outlooks.
- Delete blade wall elements in units 2.08, 2.11 3.04, 3.07, 3.12, 3.13, 4.03 and 4.12 and replace with translucent screens or similar.
- On west façade consider climber planting on guide wires or similar treatment to reduce graffiti.
- Include glass louvres (wintergardens) on the rail corridor (west) façade to mitigate noise.
We have noted that the central space and the private open space of the dwellings that are orientated to this central spine within the site will be in shade for much of the day. We consider that this is an acceptable amenity outcome for a large inner city development. Mr Sheppard and Mr Hutson also discussed the possible loss of amenity of the private open space areas orientated to the central spine. Some units such as 2.05, 2.06 and 2.07 have balconies just within 9 metres of opposite windows and balconies, and the need for screening was discussed by the experts. We find that this screening should be deleted to enhance the surveillance and overlooking of the central spine and to improve the amenity of these dwellings. In our view, residents who choose to reside in these dwellings will do so knowing that they face a central public open space area and other dwellings, and hence will have neighbours (just) within 9 metres of their dwellings. Being able to enjoy casual surveillance and interaction with others in the development is a better outcome than having people hidden away behind screens.
Mr Hutson also submitted that the ground floor units that face east to the boundary brick wall will have limited outlook. Unit G27 would have a living area with windows separated from the brick wall by 1.0 metre. He recommended redesigning that apartment to a one bedroom apartment. He also proposed that unit 1.27, also on the eastern boundary, have a balcony screened to 1.7 metres height. These modifications were not opposed by Mr Cicero, and we consider that they are sensible improvements.

Design Consortia Australia v Yarra CC [2009] VCAT 2573

At a glance

Result

Key principles

Issues before the court

Plain English Summary

Judgment (120 paragraphs)

Design Consortia Australia v Yarra CC [2009] VCAT 2573 (2 December 2009)

Cited legislation

Parties

Legislation Cited (2)

AI Analysis