Dreaming Investments Pty Ltd v Yarra CC & Ors [2013] VCAT 1296

1. Ten drawings (TP01 to TP10 and marked 'Amended for VCAT') circulated to parties on 23 April 2013 are substituted for the application plans.
2. The decision of the Responsible Authority is affirmed.[1] In permit application PLN12/0127 no permit is granted.

Mr Paul Connor, Barrister by direct brief. He called written and oral evidence from:

• Mr Bryce Raworth, Conservation Consultant and Architectural Historian of Bryce Raworth Pty Ltd.
• Mr Mark Sheppard, Urban Designer of David Lock Associates (Australia) Pty Ltd.
• Mr Stuart McGurn, Town Planner of ERM Australia Pty Ltd.

Mr Andrew Clarkson of Raw Solutions Pty Ltd produced photomontages but with the agreement of parties was not required to attend and answer questions.

Ms Katrina Thomas, Planning Appeals Advocate. She called written and oral evidence from Ms Robyn Riddett, Architectural Historian, Interior Designer and Heritage Consultant.

Mr John McDill Town Planer of City Consulting Pty Ltd for Cameron McDill.

Ms Judy Morton for herself and Agyro Kontesis, Sheryl McGrillen and Guiseppe & Constandina Filipelli.

Ms Barrett for herself, Bob Virgona, Mihail Hatzantonis and Rae Gaven.

Demolition of the existing building and construction of a 3 and 7 storey building with basement parking containing 1 shop, 7 dwellings, 4 car spaces and 7 bicycle spaces.

Cl. 34.01-4 (construct a building or construct or carry out works in B1Z/C1Z).

Cl. 43.01-1 (demolition and buildings and works in HO310).

Cl. 52.06 (reduction in the provision of on-site car parking).

I undertook an inspection some weeks after the hearing.

The review site is located on the southern side of Bridge Road, has a frontage of 6.91 metres, a depth of 21.21 metres, an area 146m2 and a slope down from front to back of approximately 2.5 metres. It forms part of a strip of mainly one and two storey commercial buildings along the southern side of Bridge Road.

The site is occupied by a single storey shop building built to the front and side boundaries and has access from a rear laneway which links with Punt Road to the west. Car parking is provided in the rear yard.

1. Although Council failed to make decision within the prescribed time, it has since decided to oppose the proposal as shown on the amended now substituted plans for four reasons. In summary these concern:

1. The height and scale will visually dominate the heritage place which is contrary to the purpose of the heritage overlay at clause 43.01 and fails to comply with clauses 21.05-1 (heritage) and 22.02 (development guidelines for sites subject to the heritage overlay). 2. The scale, height and architectural quality of the proposed development does not respond to the site context nor fit into the emerging built form context and streetscape as envisaged under clauses 15.01-1 (urban design) and 21.05-2 (urban design).

1. The proposed building will have a monolithic appearance and will be visually dominating in Bridge Road and Napier Lane and the immediate surrounding area, failing to satisfy clauses 15.01-5 (cultural identity and neighbourhood character), 21.05-2 (urban design) and 21.08-10 (central Richmond).

1. Inadequate level of internal amenity and sharing of equitable development opportunities.
2. Nearby property owners also oppose the proposed development for similar reasons to those raised by Council, although they have particular concerns about excessive height and inadequate car parking.

1. Having regard to submissions and evidence I consider that the key issues are as follows:
   1. Is there policy support for redevelopment of this site with a building of the form and scale proposed?
   2. Does the new building represent an acceptable response to its site context?
   3. Are there any unacceptable external or internal amenity impacts, including inadequate on-site parking?
2. I now address each of these in turn.

Is there policy support for redevelopment of this site with a building of the form and scale proposed?

1. The review site contains a single storey shop building in a Business 1 Zone/Commercial 1 Zone. Although within a heritage overlay, there is no dispute that the existing non contributory building can be demolished. Ms Riddett and Mr Raworth concur that demolition is non controversial from a heritage perspective.
2. Therefore the main issue in dispute is whether the replacement building is an appropriate response to relevant planning policy and the site context, particularly having regard to its location within a recognised heritage precinct. In essence the key point in contention is the appearance of the building - height, rear boundary setbacks, articulation, materials and colours. Internal amenity is of concern to Council and car parking, or rather what is considered an inadequate provision of on-site parking, is of concern to residents.
3. What is not in dispute is the strong State and local policy support that aims to focus new development in designated activity centres. Bridge Road is one of five Major Activity Centres in the municipality and is served by a tram route outside the site forming part of the Principal Public Transport Network (PPTN). It is also within walking distance of the Jolimont and West Richmond train stations.
4. As a Major Activity Centre, Bridge Road contains all the facilities and services expected of such a centre including a large number of convenience and higher order shopping outlets, community, health and education services, and entertainment and dining venues. Local policy (see for example Clause 21.04) seeks to accommodate the majority of new residential development on strategic redevelopment sites generally located in, abutting or close to activity centres. Clause 21.05-2 suggests that the municipality has a generally low rise urban form punctuated by pockets of higher development. Activity centres are noted as being generally of Victorian and Edwardian in origin, generally of two storeys in scale with some higher signature buildings.
5. Objectives and strategies include that development on strategic redevelopment sites or within activity centres should generally be no more than 5-6 storeys high unless certain outcomes can be achieved. Other strategies require development in activity centres to respect and not dominate existing built form and to consider the whole centre while recognising that activity centres may consist of sub-precincts, each of which may have a different land use and built form character.
6. In the case of Bridge Road, policy at Clause 21.08-10 identifies three distinct precincts with the western end between Punt Road and Church Street identified as having a retail (fashion, clothing and footwear) focus as well as the Epworth Hospital and associated health services. In addition to supporting development that maintains and strengthens the preferred built form character type set out in Clause 21.05 (for example, development to be generally not more than 5-6 storeys), it is also intended that there will be a reinforcement of the continuity of built form along Bridge Road, east of Church Street.
7. Three local policies dealing with development guidelines for sites subject to the heritage overlay, interface uses and development abutting laneways are also relevant, although it is the first (Clause 22.02) which impacts most on this application. In particular, Clause 22.02-5.7 contains guidelines for new development, alterations or additions on sites subject to the heritage overlay. These were discussed in some detail by both Ms Riddett and Mr Raworth and I deal with their comments in the following section. I also discuss the evidence of Mr Sheppard and Mr McGurn.
8. Based on my understanding of the policy context, I acknowledge that there is clear policy support for an intensification of development within the Bridge Road MAC, but that any new development must be tempered by the heritage attributes of the precinct and the physical site context. There is a tension between these two main strands of policy. As discussed at the hearing, that tension is not unique to Bridge Road given that I am advised that of the five MAC's in Yarra, all but one are also affected by Heritage Overlays.

Does the new building represent an acceptable response to its site context?

1. Any building has a three dimensional form and it must be assessed as a total package. However on a site such as this where the building abuts existing buildings on either side, forms part of a strip of commercial development and where the proposed building has two distinct sections with quite different heights, it is convenient to comment separately on the built form of those two sections before making some remarks about the building as a whole.
2. I make it clear at the outset that I have not refused the proposal because of the design concept of a three storey street façade with a taller element behind.
3. The façade has an overall height of 10.29 metres. Both heritage witnesses support the façade height although Ms Riddett considers that the blandness and minimal detailing and articulation will make it intrusive because it is out of keeping with the richer articulation and detailing of the Victorian shops. In so far as height is concerned Ms Riddett notes that the heights of the graded heritage buildings in this part of Bridge Road vary in height from 5.13 metres to approximately 8.8 metres. She further comments that the proposed podium height of itself is not necessarily out of scale with the heritage buildings and the context: parts of Bridge Road are characterised by higher and lower Victorian buildings, with higher ones being up to 3 storeys.
4. In contrast, Ms Morton suggested a two storey façade would be more consistent with heritage policy which encourages similar façade heights to adjoining contributory elements in the street and that where there are differing façade heights, the design should adopt the lesser height. With the exception of the modern 3 storey building next to the Napier Hotel and Nos 52 to 56 to the east, all of the buildings in this section of Bridge Road between Punt Road and Rotherwood Street are identified as contributory or individually significant. The north side is very different, both because of the significant amount of newer built form, but also because the most intact group of heritage buildings between Moorehouse Street and Normanby Place have a generally more imposing appearance than those on the southern side; partly caused by being on the higher side of the street but also because they include three storey elements.
5. I note that the two adjoining contributory buildings are single storey to the west and double storey to the east. The single storey building and the low façade height is not representative of the majority of buildings in this section of Bridge Road. Whilst the policy referred to by Ms Morton could be read as suggesting that any building on the review site should have a façade height equal to or less than the adjoining single storey building, I consider a more realistic approach would be to consider a broader streetscape perspective. In other words, if the great majority of buildings have a two storey façade height then that should be the benchmark or starting point for any assessment of an appropriate façade height.
6. The application plans (TO08) include a streetscape elevation and Mr Sheppard included a marked up elevation to demonstrate that the proposed façade had a height broadly similar to the taller buildings in this section of Bridge Road. A more useful diagram would have included the Napier Hotel on the corner of Punt Road since the parapet of that building, excluding the advertising signs, more closely matches that of the two storey shop building at No 6-8 Bridge Road. A line drawn from that point to the parapet of the two storey buildings to the east would suggest that the proposed three storey façade on the review site is something in the order of half a storey higher. That fact alone suggests that a three storey façade is inconsistent with the heritage policy referred to above by Ms Morton.
7. However, in principle I agree with Ms Riddett and Mr Raworth that a three storey façade height of 10.29 metres is acceptable. Unlike some other main roads in Yarra, this is not a heritage streetscape where façades are of a uniform height and where a higher or lower façade on a new building would undermine that consistent street edge. Façades along Bridge Road already exhibit considerable variety in heights, materials and designs. Such differences in height and visual appearance are common and have, with few exceptions, always existed. I consider that variety adds visual interest and complexity to views along Bridge Road.
8. Although Ms Riddett was critical of the blandness and lack of articulation, I agree with Mr Raworth that a contextual modern interpretation of the traditional façades is appropriate and that the use of red coloured bricks, vertical window openings and very simple detailing is an appropriate counterpoint to the much more ornate Victorian buildings in the street. For these reason I do not reject the proposed façade.
9. I now discuss the higher upper levels which I do not find acceptable and cannot support. Council's detailed reasons for opposing the development referred to height and scale. Articulation is appropriately grouped with setbacks, scale, mass and bulk as it is integral to how a building is viewed.
10. Unlike other sites along Bridge Road that have new higher levels setback well behind lower front sections, the review site is constrained by the relatively shallow depth from front to back of just 21.21 metres. The narrow width of just 6.87 metres exacerbates the ability to view the building from oblique angles and serves to emphasise the height and visual dominance of the rear section.
11. Whilst I agree with Mr Sheppard that there is an emerging character of recent taller developments and approvals behind the heritage streetscape, as far as I am aware all, or at least the great majority, are on the north side of Bridge Road. Unlike the higher rear extensions on the north side of Bridge Road, the high rear section of the proposed building on the review site does not gain any visual amelioration because of higher intervening front parapets or buildings on adjoining and nearby sites. Nor does it have a backdrop of higher built form such as is provided on the north side by the tall and visually dominating Epworth Hospital buildings or the new tall buildings further east near Church Street.
12. As such, I agree with Council that the rear section of the proposed building will have a monolithic appearance. Whilst that is the case in views along Bridge Road, it is even more evident when viewed from the lower ground to the south of the site. While the elevations clearly depict the effect of seven storeys with minimal setbacks along the southern boundary, the photomontage provides visual confirmation of how dominating and out of scale the rear section of the building will be when viewed from this direction. Not only is the building too high but the lack of setbacks exacerbates the appearance of visual bulk and the monolithic appearance referred to in Council's ground of refusal. The height of the rear section (excessive height) was also commented upon by Ms Morton in her written submission. It is correct that the height does not cause any direct amenity impacts because of the adjoining laneway and open at-grade car park that provides physical separation to the nearest residential properties.
13. Despite the lack of sensitive residential interfaces, I have formed the view that the 6/7 storey section of the building with an overall height above Napier Lane of 22.34 metres pushes the boundaries in height terms when viewed from within the Bridge Road corridor and from the residential area located on topographically lower land to the south of Napier Lane. The side walls of building abut the rear boundary for three levels (Lower ground, upper ground and level 1). Although balconies at upper ground, level 1 and level 2 provide some articulation, the building will still have a very dominating, solid appearance particularly when viewed from the east and the west - an effect exacerbated by the slope of the land away from the site and the very open and exposed interface to the south. The three upper levels are setback 3 metres from the laneway boundary with a balcony at level 3 protruding into the setback and slightly overhanging the balcony below. The overall visual effect is of a building that looms over the laneway and the car park to the south. I have already acknowledged that this is not a sensitive interface with residential properties directly abutting the laneway. But the appearance of such a tall building, with relatively minimal setbacks result in a built form outcome I am not prepared to support.
14. I acknowledge that over time, other sites along the south side of Bridge Road may be developed with taller buildings in response to planning controls and policy directions and that those taller buildings will not be confined to the north side. I also acknowledge that a taller building on the review site should not be penalised because few tall buildings have yet been constructed along this southern section of Bridge Road.
15. Whilst I accept that the review site can potentially sustain a taller building because it is separated from sensitive residential interfaces, the fact that most of the other sites along the south side of Bridge Road do not share those advantages means that a 6/7 storey building of up to 22.34 metres in height will likely remain one of the most obvious and visually dominant buildings in this streetscape and when viewed from the south.
16. For the same reason that I support some variation in street wall height, so too do I support some variation in overall building height. However I consider that the variation has gone too far with the current proposal and that it needs to be scaled back to better respond to the site context. I do not intend to be prescriptive about what may be acceptable since it is not just overall height but also setbacks, articulation, materials and colours that influence whether a building is acceptable in its context. Although local policy at Clause 21.05-1 would suggest that buildings of not more than 5-6 storeys would be acceptable, that may not be achievable on a site which is very narrow, surrounded by low rise heritage fabric and where any new higher built form will be highly visible and visually dominating.

Are there any unacceptable external or internal amenity impacts, including inadequate on-site parking?

1. Because of the separation distance between the review site and the nearest residential properties to the south, south east and south west, there are no unreasonable or unacceptable overshadowing or overlooking issues when assessed against the relevant criteria - screening within 9 metres, overshadowing at the equinox, and 3 metres setback from north facing windows.
2. Although I have refused this particular proposal primarily because of the visual dominance of the rear section, I agree with Council that the internal layout is also problematic, particularly as it relates to the light court and the rooms in the lower level dwellings gaining sole light from this source. As discussed at the hearing, the inclusion of skylights on some sections of roof (for example, the eastern section of roof outside Dwelling 7) could improve daylight access. However, there is also the issue of whether windows to the light court are openable for ventilation purposes and, if so, whether there is then unacceptable noise transmission between dwellings. These are not insurmountable issues and would not by themselves cause me to refuse the application. They nevertheless demonstrate that achieving acceptable levels of internal amenity can be quite complex on very narrow sites, particularly when the Guidelines for Higher Density Residential Development seek a sharing of equitable development opportunities. The provision of blank walls, such as occurs on the western elevation, provides one solution but it can then result in consequential adverse impacts on internal amenity.
3. Council is satisfied with the amount of on-site parking and does not have any concerns about unacceptable or unmanageable impacts on the road network. That view was not shared by neighbours who raised concerns about lack of on-site parking and congested parking in this part of Richmond.
4. Applying the car parking rates set out in Clause 52.06 would require 9 spaces - 1 for the shop, 7 for residents and 1 for residential visitors.[3] Parking for 4 vehicles is being provided in a stacker unit in the lower ground level resulting in a shortfall of 5 spaces.
5. Although I understand why neighbours may consider the parking to be inadequate and that there is a desire to provide parking in accordance with Clause 52.06 (or at least allow less of a reduction against those rates) that desire needs to be balanced against contrary policy which seeks to reduce private vehicle travel and to use alternative environmentally friendly travel modes. One way to do that is to provide dwellings and other facilities without the full measure of on-site parking set out in Clause 52.06.
6. The site is well served by public transport and Government policies aim to reduce dependence on motor vehicles by, amongst other things, encouraging new development into areas already well served by public transport and by trying to better match housing and work places.
7. Part of the underlying philosophy for urban consolidation and activity centre planning is to reduce dependence on the use of motor vehicles for private travel. A site such as this within a Major Activity Centre, on the PPTN, relatively close to two train station and where not owning or using a car is a practical alternative lifestyle choice for residents creates an opportunity to provide a different form of residential accommodation less reliant on the private motor vehicle. It won't suit everyone, but decisions about whether to live in this building will include consideration of parking availability. If we as a community are serious about reducing our dependence on motor vehicles and limiting the growth in traffic (and congestion) then a site such as this is one where a reduction in on-site car parking can be supported.

1. For all of the above reasons I will direct that no permit is to issue.

[1] In accordance with Section 4 (2) (d) of the Victorian Civil and Administrative Tribunal Act 1998 a failure to make a decision is deemed to be a decision to refuse the application.