Victorian Civil and Administrative Tribunal|2003-02-20|Before: Mr J

Dzanovski v Banyule CC [2003] VCAT 217 (20 February 2003)

Application under s. 77 of the Planning and Environment Act 1987; Banyule Planning Scheme; Multi Level Building; Heidelberg Central Shopping Centre; Building Scale; Laneway Access; Car Hoist; Off-Site Amenity Impacts; Melbourne 2030; Weight to be given to Melbourne 2030; Weight to be given to draft Design Guidelines.

Heidelberg Central Traders Association Inc. and Others

Construct an 8 storey building comprising ground floor retailing, 20 apartments and a reduction in car parking

The decision of the Responsible Authority in permit application no. P262/01 is affirmed. A permit must not be granted and no permit is to issue.

Mr A Hooper QC and Mr A Hooper of Counsel appeared by direct brief on behalf of the Applicant for Review. Mr Hooper QC called Mr M Ryan, Town Planner; Mr M Sheppard, Urban Designer; and Mr T Hardingham, Traffic Engineer, to give evidence.

Mr E Patterson of Local Planning Services appeared on behalf of the Responsible Authority.

Mr G Baker appeared on his own behalf as a Respondent Objector.

Mr M Waldon appeared on behalf of the Heidelberg Central Traders Association Inc. on the first and second days and the morning of the third day of the Hearing. Ms K Gibb appeared on the afternoon of the third day. Mr M Dwyer appeared on the fourth day of the Hearing.

Mr J D'Aloia appeared on behalf of the Warringal Conservation Society Inc. on the first day of the Hearing.

The parties made written and verbal submissions and a number of plans, photographs and other documents were tendered to the Tribunal. All documentary material is retained on file. Witnesses were made available for cross-examination. With the consent of the parties, the subject site and locality were inspected by the Tribunal on the morning of the second day of the Hearing.

1. This is an Application under Section 77 of the Planning and Environment Act 1987 brought by C Dzanovski to review a decision made by the City of Banyule ("the Council") to refuse to grant a permit in application no. P262/01. A Notice of Refusal was issued by the Council on 31 January 2002 on the following grounds:

1. The proposal will have a detrimental impact upon the users of the Heidelberg Central Shopping Centre due to its height and the provision of insufficient useable on site car parking facilities.

2. The proposal fails to have sufficient regard for the surroundings in which it is located, particularly with reference to:

(a) The height of the proposed building and resultant bulk and loss of amenity to surrounding properties.

(b) The proposed setback from Burgundy Street to Levels L2 to L7 and the associated bulk and shadow to the surrounding area.

3. The lack of setback of the building from Sheffields Lane is contrary to the proper and orderly planning of the area.

2. An Application for Review was lodged on 5 April 2002 by Mr Ryan on the following grounds:

1. The proposal is an appropriate development of an underutilised site in the Heidelberg Shopping Centre that will provide substantial benefits to the centre, both through improvements to the pedestrian and shopper environment and by adding life and interest to the central part of the centre. It provides a well considered building form that is both appropriate and sensitive to the strip shopping centre.

2. The proposal is site responsive and has proper regard to its surroundings, including in regard to its height, being located in a valley, with a staggered and varied setback to Burgundy Street and does not impact on adjoining properties, while the proposed layout abutting Sheffield (sic) laneway is appropriate.

3. The proposal complies with Local and State policy including by providing a (sic) appropriate retail frontage to Burgundy Street and by achieving a mixed use development in a shopping centre.

3. At the commencement of the Hearing, Mr Waldon and Mr Baker sought the deferment of the Hearing given their concerns about the late notification of the Hearing dates and late provision of expert witness reports. Having heard submissions from the parties in relation to these matters, we ruled that the matter would proceed on the basis of the Applicant's case being put before Objectors ,if so desired by the Objectors, with a right of reply for the Applicant after Objector submissions. We also foreshadowed the opportunity for Objectors to seek an opportunity to make further submissions orally or in writing at the conclusion of the Hearing.

4. At the conclusion of the Hearing, no Respondent Objector sough to make further submissions in writing. We did, however, grant leave for Mr Hooper QC to advise the Tribunal (and other parties) of sites where a car hoist could be viewed.

5. The subject site is located on the north side of Burgundy Street, between Cape and Hawdon Streets. It comprises three titles having a combined frontage of 21.34 metres and a depth of 36.58 metres. The site area is approximately 777 square metres. There is a fall of some 3.6 metres from the north (rear) to the south (street. The subject site is occupied by single and double storey buildings and an arcade. Existing uses include a post office, solarium and offices. Some premises are vacant.

6. The subject site extends through to a lane (Sheffields Lane) that is around 3.7 metres wide and extends between Cape and Hawdon Streets. It services various retail premises fronting the north side of Burgundy Street. There is a traffic management device installed along the lane. There is pedestrian access to the lane from Burgundy Street, via a walkway around 40 metres to the west of the subject site.

7. To the north side of the lane, and north/north-west of the subject site, is a Council car park. It is elevated above the subject site as a result of the slope of the land. The car park has pedestrian access via the lane to Burgundy Street.

8. The site is within the Heidelberg Central Shopping Centre. The strip centre comprises a mix of single and two storey premises. It is situated in a valley with land rising up to both the south and north into residential areas as well as west, past Mount Street and a railway line, toward the Austin and Repatriation Medical Centre. There are a number of premises on the north side of Burgundy Street that are double storey to the street and single storey to the lane as a result of the topography.

9. The premises adjacent to the subject site include a restaurant with a dwelling to its rear and a single storey building used as a chemist. The dwelling to the west has some windows facing toward the subject site. A part one/part two storey Telstra building is located to the north-east with a maximum roof height of RL41.8m AHD.

10. There are parking restrictions along Burgundy Street and nearby streets.

11. We were advised of two recent planning permit approvals by the Council. One relates to the land at the corner of Burgundy Street and Rosanna Road (Permit P478/01) and the second is at Nos. 90-100 Mount Street (Permit P182/02). Copies of the permits and application plans were tendered by Mr Patterson. Both involve part six level buildings plus basement car parking.

12. It is proposed to demolish the existing structures on the site and construct an eight level development.

13. The ground level, as its presents to Burgundy Street, is proposed to comprise three shops, with a floor area of around 442 square metres. We were advised that this is slightly less than the existing retail floor area. Shop A is built to the street frontage with shops B and C stepped back from the street frontage by a minimum of 1.6 and 4.3 metres respectively. Shop C is also provided with a mezzanine level. The forecourt area that is created by these retail setbacks is proposed to also give access to the foyer serving the residences above. The entry is 2.3 metres wide and leads to a lift.

14. To the rear of the shops is a lower level car park, providing 8 spaces. It is proposed to be accessed via a "hoist" from the level (L1) above.

15. Level 1 comprises parking for the development and the mezzanine level of Shop C. A total of 25 spaces is shown on the plans. The car park is accessed via Sheffields Lane and this level gives access by hoist to the parking level below. The information accompanying the application identifies the total of 33 car spaces to be allocated for resident use. Level 1 adopts the same building footprint as the ground level, being built to all boundaries with the exception of the setback for the forecourt to Burgundy Street.

16. Levels 2 - 8 comprise 20 residential units of varying sizes - 4 one bedroom units, 6 two bedroom units and 10 three bedroom units.

17. Levels 2 and 3 each contain five units. Excluding balconies, these two levels are both setback by 3.5 - 6.8 metres from Burgundy Street, 2-3 metres from the side boundaries and 3 metres from the north (rear) boundary. Balconies extend to the site boundaries in part, to the street frontage, west boundary and rear corners.

18. Levels 4 and 5 comprise each four units. They adopt similar setbacks from the street as the lower two residential levels with balconies also built in part to the street. The side and rear setbacks are also the same, although the balconies are smaller. Balconies are proposed to in part abut the rear boundary.

19. Levels 6 and 7 provide for two penthouses. Excluding balconies, the setbacks are around 8.7 metres from the street, 11.4 metres from the rear boundary and 5.15 metres from the side boundaries.

20. Although incorrectly annotated on the plans, the height of the development is around RL55.3, from a relative level at the Burgundy Street frontage varying between 28.46 and 28.86AHD. Relative to ground level, the height of the development is a maximum of around 26 metres.

21. We were advised by Mr Ryan that a lift over-run would be necessary, of 1½ - 2 metres in height. This is not shown on the plans.

22. The plans show colourbond steel cladding to part of the Burgundy Street façade (car park level) and a "feature double height canopy" associated with level L1. Levels L2 to L5 are cement render with aluminium framed windows, have solid steel balustrading to balconies and cantilevered concrete awnings. The penthouses are metal clad with a contrast render "tower" with steel pipe railings to the balustrades.

23. The above description is based on the plans submitted with the permit application (we refer to these as the "application plans"). They are the plans that are before us. However, a number of variations to the proposal were referred to during the course of the Hearing by Mr Hooper QC and by witnesses for the Applicant including:

s a "reduced option" shown in plans accompanying Mr Ryan's statement of evidence that provides for the deletion of one level of the development and revised unit arrangements (reduction to 19 units), increased setbacks to various boundaries and the inclusion of a pedestrian link.

s a plan tendered by Mr Ryan showing modifications to the internal layout of Levels 2 and 3 to provide four units to each level (instead of 5) including re-positioning units so that none relies only a westerly aspect. Taking into account the "reduced option" and this tendered plan, Mr Ryan explained that the total number of units could be reduced to 17.

s a revised building envelope including six levels of development, with the recession of some levels, as described in Mr Lock's statement of evidence. No plans accompanied the statement relating the recommended envelope specifically to the layout of the proposal. However, a revised layout for residential levels was proposed and included, whereby all apartments would be given a northern aspect a north-facing balcony and cross-ventilation, through the introduction of side setbacks.

s a revision to the car park layout tendered by Mr Hooper through Mr Hardingham's evidence. That shows a reduction in the number of car spaces at the lower level and enlarged retail premises. Garbage collection facilities and a setback of 2 metres from the lane for Level L1 are also shown.

24. We have taken these possible variations into account in reaching our determination.

25. The subject site is zoned Business 1 under the provisions of Clause 34.01 of the Banyule Planning Scheme ("the Scheme"). Shops are a Section 1 use with buildings and works approval required. A permit is also required to use the land for the purpose of dwellings, given that the frontage to the dwellings at ground level is over 2 metres in width. Decision guidelines are set out in relation to buildings and works including matters such as the interface with adjoining zones, the streetscape and design to provide for solar access. Notice and appeal exemption provisions of the Clause do not apply.

26. The provisions of the Good Design Guide do not apply (the application having been lodged in May 2001 but being for 8 storeys). Clause 19.03 sets out design principles that are required to be taken into account. As relevant to the Application, they are:

s Development must take into account the natural, cultural and strategic context of its location.

s A comprehensive site analysis should be the starting point of the design process and form the basis of consideration of height, scale and massing of new development.

s The public realm, which includes main pedestrian spaces, streets, squares, parks and walkways, should be protected and enhanced.

s Landmarks, views and vistas should be protected and enhanced or, where appropriate, created by new additions to the built environment.

s Design of the relationship between buildings and footpaths and other pedestrian spaces, including the arrangement of adjoining activities, entrances, windows, and architectural decoration, should enhance the visual and social experience of the observer.

s New development should contribute to the "complexity" and diversity of the built environment.

s Site consolidation should not result in street frontages which are out of keeping with the "complexity" and "rhythm" of existing streetscapes.

s The development process should be managed so that sites are not in an unattractive, neglected state for excessive periods and the impacts from vacant sites are minimised.

s Enjoyment of the public realm should be enhanced by a desirable balance of sunlight and shade.

s This balance should not be compromised by undesirable overshadowing or exposure to the sun.

s All building, subdivision and engineering works should promote more efficient use of resources and energy efficiency.

s New development should aspire to the high standards in architecture and urban design.

s Any rooftop plant, lift over-runs, service entries, communications devices, and other technical attachment should be treated as part of the overall design.

s Recognition should be given to the setting in which buildings are designed and the integrating role of landscape architecture.

28. Car parking requirements are set out at Clause 52.06. Specific requirements are set out for shop and dwelling. The decision guidelines of Clause 52.06-1 require a range of matters to be considered if a permit application seeks to waive or reduce the parking requirement. Those matters are (inter alia):

* The availability of car parking in the locality.

* The availability of public transport in the locality.

* Any reduction in car parking demand due to the sharing of car spaces by multiple uses....

* Any car parking deficiency or surplus associated with the existing use of the land.

29. We were advised that the Heidelberg Central Shopping Centre Car Parking Precinct Management Plan & Pedestrian and Traffic Movement Plan was adopted by the Council on 23 October 2000. A copy was tendered by Mr Patterson. It is not referenced or incorporated into the Scheme. It sets out parking rates for uses such as dwelling and shop.

30. Clause 52.07 requires consideration of loading and access arrangements. In this case, a permit is required to waiver the loading requirements set out in the Scheme. A permit may be granted if the land area is insufficient or adequate provision is made for loading and unloading to the satisfaction of the Responsible Authority (or Tribunal on review).

31. Clauses 14, 15.12, 16, and 17, Clause 21 (Municipal Strategic Statement), Clause 22.04 (Environment Policy), Clause 22.05 (Business Plans Policy), Clause 22.06 (Housing Policy), Clause 22.07 (Neighbourhood Character Policy that applies to all residential development in the municipality) and Clause 65 (general decision guidelines) are relevant and have been taken into account by the Tribunal.

32. The local policy at Clause 22.05 requires the Tribunal to have regard to the Business Plan 2001-2005 for the Heidelberg Central Shopping Precinct ("the Business Plan") adopted by the Council on 18 June 2001.

This policy applies to business and industrial zones within the City of Banyule in relation to which business plans have been prepared.

A Business Plan is 3 to 5 year plan prepared by Council which sets a vision, directions and action strategies for a defined commercial or industrial precinct with the aim of ensuring the ongoing future economic sustainability of the area. It provides a profile of the precinct, addresses opportunities for change, a vision for the future and a comprehensive series of short and long term action strategies covering: marketing and communication; business development; streetscape/urban design improvements; car parking and transport; land use changes; and organisation and funding strategies. The action strategies are developed in partnership with and allocated amongst key stakeholders in the precinct. The long term success of the Business Plans depends on the strength of these partnerships.

Preparation of these plans is part of an on-going project of Council.

Retailing and manufacturing are important sectors in Banyule's economy and are major employers within the municipality. Banyule's more than 50 shopping centres provide a range of retail, personal, professional, business and service industry services. They also have a range of community and civic functions. Banyule's industrial precincts cater for a variety of manufacturing, transport, construction, warehousing and motor vehicle sales, service and repairs services.

A series of business plans has been and will continue to be developed for shopping and industrial precincts within the City of Banyule.

A business plan for any particular precinct is developed in a co-operative approach involving all stakeholders, including traders, property owners, public authorities and Council. Such a plan provides a framework for the future business and physical development of the precinct.

To ensure that business plans prepared in relation to shopping and industrial precincts are taken into account in the consideration of planning applications.

It is policy to promote economic development consistent with community needs and the distinctive character of Banyule and more particularly identified in any relevant Business Plan adopted by Council.

In considering any application to use or develop land zoned business or industrial, the responsible authority shall have regard to any relevant business plan adopted by Council.

34. We were provided with a copy of the Business Plan by Mr Patterson and it was referred to by the other parties. We note, among other matters set out in the Plan, discussion and recommendations in relation to redevelopment opportunities and streetscape to which we return to below.

35. Melbourne 2030 and Amendment VC16 were introduced on 8 October 2002. We have taken Melbourne 2030, its draft implementation plans and the draft Clause 12 of the State Planning Policy Framework into consideration. "Heidelberg" is identified as a "major activity centre".

36. We have considered the submissions and evidence presented and have inspected the site and locality. We do not recite all of the material tendered, as the documentary material is retained on file. We set out our findings in relation to the key issues in this Application which are:

s whether the form of the proposed development is an acceptable response in terms of character of the retail precinct and surrounding area having regard to the applicable planning policies.

s whether the access and parking arrangements are acceptable.

s whether the proposal results in unreasonable off-site amenity impacts.

37. We address the various matters raised in submissions under these issue headings.

38. We refer first to the planning policy framework that guides our consideration of the merits of this proposal. We spend some time on the policies and associated reference material in terms of building form and urban design matters. We focus on this given its importance to the evidence and submissions presented.

39. The parties relied on many of the Scheme provisions we have nominated above in addition to Melbourne 2030 and the Business Plan. Reference was also made to Draft Proposed Urban Design Guidelines for the Heidelberg Central Shopping Precinct (Niemann Partners, dated 20/11/02), which were the subject of a public consultation process initiated by the Council in late 2002. A copy of the draft Guidelines was tendered by Mr Patterson.

40. We do not find there to be a significant divergence in the submissions and evidence in relation to the existing Scheme policies, in so far as the subject site is suitable for a re-development involving retail premises to the Burgundy Street frontage and residential apartments above. Indeed, that approach is entirely consistent with the applicable policies, such as Clauses 17.01 and 21.04.

41. The current Scheme provisions refer to Heidelberg Central as a "community centre". The policies at Clause 21.04 give some emphasis to " the viability and enhancing the local character of strip shopping centres" in addition to encouraging high quality architecture and urban design. Uniform shop frontages in strip centres are also encouraged. Built form policies include a general objective that new buildings adopt design, form and bulk that is consistent with or makes a positive contribution to the character of an area. The subject site is identified on the map accompanying Clause 21.04-6 as within an area with "urban design issues (built form, character, streetscape)".

42. The purpose of the Business 1 Zone includes encouraging "intensive development" and we have noted above that the relevant Clause includes decision guidelines requiring, among other things, consideration to be given to the streetscape.

43. Based on our reading of the existing Scheme provisions, there is an emphasis on promoting development and broadening the use base. That will, of course, bring change. However, we find nothing within the policies of the Scheme itself to give specific guidance as to how change in an activity centre such as Heidelberg Central is to be managed in design and built form terms.

44. The Business Plan assists to fill this vacuum to some extent and it is a document we are required to have regard to pursuant to Clause 22.05. Having said that, it is not incorporated into the Scheme and therefore its status is less than the policies and provisions that are within or incorporated into the Scheme. It is not a "control". The Business Plan discusses various issues, such as the role of Heidelberg Central, and identifies strategies to achieve the objectives that are articulated. Redevelopment opportunities and streetscape are referred to in section 5 of the Business Plan.

45. Reference is made on page 40 of the Business Plan to larger sites within the Centre that could be the subject of substantial development providing satisfactory car parking is provided. The Business Plan states that "While retail frontage is most desired at ground level, particularly on Burgundy Street, several storeys of apartment style dwellings could be considered for suitable sites...". The document notes that the Centre is generally 1-2 storeys in scale and considers that "Burgundy Street would benefit from the conversion of many single storey buildings to 2-3 storeys". It states that "This would result in more opportunities to provide shop-top housing and office areas, gradually enabling most ground floor premises to return to retail usage". In the recommendations, support is given to apartment development on appropriate sites subject to adequate parking and urban design outcomes. It is also recommended that the Council consider preparing urban design guidelines for the Centre, which we return to below.

46. Under the heading of "Streetscape" (page 41), the Business Plan includes:

A major opportunity in this centre that is just beginning to be realised is the potential for above-shop development for residences (see figure 5.3.3c). For example, Burgundy Street has a mixture of one and two storey buildings, the one-storey buildings often having parapets that equate then with a two-storey height. These buildings could easily accommodate extensions another storey upwards, maintaining the existing setback, but where further storeys are envisaged they should be stepped back to reduce the impact on the pedestrian scale of the street and also to maintain solar access at ground level...

47. Figure 5.3.3c refers to costings for "Streetscaping". Figure 5.3.3.(b) on page 44 is more relevant to the matter discussed in the quotation as it is entitled "Recommended setbacks for second storey development". A diagram is shown with a recessed third level to a two storey building. Possible actions are identified - "promote residential development above existing shops" and "develop a policy to step back any new development from existing frontages if exceeding two storeys in total height to maintain existing pedestrian-friendly scale and solar access".

48. There is also a discussion in the Business Plan on the need for well-defined gateways to the Centre.

49. On our reading, as a whole, of the existing Scheme provisions and the reference document, we do not consider that encouragement is given to radical change within the heart of the retail precinct. "Change" is a term that can be widely interpreted but we accept the Council's submission that the policies encourage new development in a manner that has a degree of fit with the existing character and scale.

50. The submissions and evidence of the Applicant placed significant emphasis and reliance on the provisions of Melbourne 2030 in support of the Application. This was both in terms of the land use elements as well as in relation to (the most contentious issue in this Application) whether the proposal is acceptable in built form and urban design terms.

51. We do not think that there is any debate that Melbourne 2030 is a strategic statement that must be given weight. There was considerable discussion during the course of the Hearing as to the implications of Melbourne 2030 on a major activity centre, such as Heidelberg Central. Mr Ryan's interpretation (and to a lesser extent Mr Sheppard's) was that the policy and its directions and initiatives would result in substantial and considerable change whereas others (eg. Mr Baker) were of the view that change in a more moderate form could occur while protecting the character of the centre and achieving significant housing and population outcomes.

52. Melbourne 2030 refers to major activity centres (and other nominated centres) as being mixed use, "demonstrating a range of housing forms and densities and high quality urban design" (page 31). Major activity centres are identified as "potential sites for significant developments and infill building programs" (page 32). We note that the diagram accompanying this part of Melbourne 2030 refers to higher development "restricted to locations away from existing residential area" and "new development with increasing height away from existing houses". There are other policies and initiatives including those relating to activity centres, energy efficiency and housing, that are also relevant. Emphasis appears to be given to urban design considerations and outcomes.

53. We have no doubt that the successful implementation of Melbourne 2030 will produce change in aspects of the city's urban form as the policies are intended to. At policy 1.1 on page 52 of the Strategy, each activity centre is to be assessed against standard performance criteria (listed on page 53) by Councils before developing detailed planning responses to the policy of encouraging development in such centres. As identified by Mr Sheppard, Melbourne 2030 clearly states that "In some cases, this will involve change to the urban form of the centre".

54. At the Hearing we drew the parties' attention to several provisions of Melbourne 2030 that suggest that some degree of (what we describe as) comfort is sought, rather than the relatively radical change that was described in Mr Ryan's evidence. For example, the draft Implementation Plan 4 Activity Centres, at Appendix 3, refers to possible guidelines relating to incorporating higher density housing into activity centres and the scale, form and design of higher density housing in existing centres. Two draft guidelines are:

s Maintain a scale of built form that allows eye contact with people in public spaces.

s Design buildings to complement the scale and character of their surroundings.

55. Under the heading "Avoid" is (inter alia) "Buildings that are sited, massed or articulated in ways that fail to respect local character or heritage".

56. Mr Ryan noted these provisions and referred to other aspects of Melbourne 2030, including the diagram on page 32, to support his opinion. Mr Hooper's submission was that the thrust of Melbourne 2030 is toward significant change and that must be given considerable weight as a policy adopted by the Minister.

57. The documents must be read in their entirety, as we have done. We are persuaded that some change is encouraged and that is sought to occur in a managed way, including through further planning work at the local level. In absence of that further work by the State Government and/or Council arising from Melbourne 2030, we find nothing within the policies to direct the degree of change in or adjacent to a strip centre such as Heidelberg Central of the magnitude envisaged by Mr Ryan.

58. We now turn to the draft Proposed Urban Design Guidelines for the Heidelberg Central Shopping Centre, which we refer to for ease as "the draft guidelines". They were prepared in 2002, pre-dating the launch of Melbourne 2030, and we understand they were then adopted by the Council as the basis of a public consultation process. The public exhibition is complete and Mr Patterson stated that there were five submissions. Given these circumstances, the draft guidelines can not be regarded as a seriously entertained proposal. The can be regarded as having some relevance but of no influential weight.

59. Mr Hooper also expressed concern about any weight given to the draft guidelines given (inter alia) that their rationale was not clear and the author had not been called to give evidence. On the first day of the Hearing, during the Council's submission, Mr Hooper requested that the author (Mr Niemann) be called so that he could be cross-examined. Mr Patterson later advised of Mr Niemann's inability to attend on the second day of the Hearing. The request was not subsequently pursued by Mr Hooper.

60. We have indicated above that the draft guidelines are not given weight by us, but, as the Council and some Objectors sought to rely on them and both Mr Ryan's and Mr Sheppard's evidence referred to them, we note some of the contents below. We add that although we have discounted the guidelines given their embryonic stage, that is not to say that some of the principles in the draft guidelines are inappropriate or at odds with current Scheme provisions/policies. The following components of the draft guidelines are relevant to the submissions and evidence presented by the parties:

s the subject site is located within the core of the retail centre and close to an identified "node".

s landmark and gateways are nominated, but the subject site is not earmarked as such.

s views over the Shopping Centre and to opposite ridgelines are referenced and given significance and sought to be given protection.

s the subject site is within Sector C. Links are encouraged through shops to the right of way to the rear of the subject site and the Council car park to its north. The future character is identified as having a "traditional strip shopping centre scale", with varied buildings that "respect traditional scale and form".

s recommended heights and setbacks for the subject site are two storey built to the street frontage stepping to three storeys. Setback provisions are linked to the maximum average façade height permitted by the guidelines plus 2 metres for every 1 metre of building height above the façade limit until the maximum building height for the site is reached.

s the recently approved developments at Mount Street and Burgundy Street (refer paragraph 12 of these reasons) are within different sectors.

61. Much of the above discussion has focussed on building form. The existing policies (eg. Clause 19.03) give weight to the protection and enhancement of the public realm and notably, with relevance to an activity centre, the pedestrian environment. This is something that appears to be more strongly emphasised in Melbourne 2030 and is addressed more specifically in, for example, the Business Plan. Maintaining and enhancing the activity centre as a pedestrian environment, of a comfortable scale with daylight and sunlight access, is a matter which we give weight.

62. Finally, in terms of the policy framework relating to built form and design, we briefly refer to the notion of a landmark. The information supporting the permit application, prepared by Mr Ryan, suggests that there is an opportunity to facilitate a landmark development in the core of the Shopping Centre and that submission may imply that the subject site could be suitable in that regard. This was not a matter relied upon in Mr Ryan's evidence at the Hearing, although he did not resile from his opinion that a centrally-located landmark may be appropriate. Mr Waldon submitted that the review site is not well positioned to be appropriately considered as an icon.

63. We find nothing in terms of the physical circumstances of the site, its context or existing or proposed policies/guidelines to give strategic or other justification for a landmark building on the subject site. However, we would hope that its re-development would demonstrate high quality architecture and design and, in that way, provide a benchmark for other works that may occur within the Centre.

64. There are other policies within the Scheme that apply to matters such as parking, traffic and protection of residential amenity. We do not go to those in detail but simply note that they have been considered by us.

Neighbourhood Character and Streetscape Considerations

65. The Council's submission was that the scale and mass of the proposal would not be acceptable in the context of the prevailing scale of the Shopping Centre and impacts on the amenity of users of the Centre. The potential for a loss of views within and across the valley was also referred to. While noting that the draft design Guidelines refer to three levels being appropriate for most of the subject site, Mr Patterson submitted that officers recognised that a building of equivalent height to the Telstra building (ie. RL41.8 AHD) may be acceptable. Respondent Objectors referred to similar concerns about the height, lack of setbacks to Burgundy Street, and loss of amenity within the shopping centre. There was some concurrence with the view that a four level development, stepped back from the street, may be acceptable.

66. These submissions were challenged by the Applicant through the evidence of Mr Ryan and Mr Sheppard. As we have highlighted at paragraph 12 above, a number of variations to the proposal before us were suggested through this evidence. We record Mr Ryan's evidence that a 7 storey proposal would be acceptable (as shown in his reduced option) but that he would also support a six storey proposal as suggested in the evidence of Mr Sheppard. We have also noted that Mr Sheppard's evidence documents a building envelope with no revised plans in the same manner as the reduced option attached to Mr Ryan's evidence.

67. We now turn to our consideration. The activity centre has a one and two storey scale that is also strongly influenced by the topography. It is a traditional strip centre in so far as there remain mainly narrow retail frontages to the main streets with car parking and servicing behind. There are a number of larger developments that have occurred (eg. Leo's supermarket) and substantial redevelopments that have been approved. We give weight to the fact that the existing retail and commercial facilities on the site could be considerably improved and recognise that the arcade is a discontinuity in the streetscape and retail frontage.

68. There is no issue that there are a number of positive components of the design shown in application plans. We have referred to some of these above and highlight that the provision of a retail frontage to Burgundy Street, comprising three shops, reflects the grain of the strip centre and replaces the arcade that is a dead spot in the retail frontage. The provisions of Clause 19.03 and decision guidelines of the Business 1 Zone, among others, encourage active retail frontages.

69. We find much of the evidence of Mr Sheppard to be persuasive both in terms of the treatment of the retail frontage and Burgundy Street elevation and the macro-issue of the building form overall. We accept his evidence that an 8 level building is not appropriate. Mr Sheppard considered that a five level development (at 16.5 metres) would be appropriate with a sixth level appropriate in the following circumstances:

if it is setback sufficiently from all sides to be invisible from standing eye level directly across the street, barely visible when viewed obliquely along the street - taking account of likely future development - and clad in visually recessive materials and colours.

I consider that additional floors above a sixth level would change the building type from an urban infill block into a tower, which would only be appropriate at landmark locations. (I do not consider the subject site to be a landmark location - it is not a key node in the movement network or visual structure, nor are the proposed uses particularly publicly significant). [Tribunal emphasis added]

71. A footnote to this paragraph states that although the site is larger than most or all other properties in the street block, this is not sufficient reason to justify a landmark building, and could easily be replicated through consolidation.

72. Based on the policy considerations we have set out above, we find Mr Sheppard's evidence to be persuasive in relation to the appropriate approach to a development on the subject site, being infill rather than a landmark tower. We return shortly to the question of an appropriate height for an infill form shortly. Before we do, we refer to other aspects of Mr Sheppard's evidence that we also accept:

s the inclusion of a north-south pedestrian link is not critical given that a good link already exists a short distance from the subject site. If such a link is to be included, it is preferable for it to be in the form of access via the shop with two levels rather than the less attractive option of down a set of stairs and through the foyer of the residential complex. The route proposed in the reduced option may have security issues that warrant attention, be they for occupants of the units or for users of the link.

s the provision of modified verandah form at the same height above footpath level as others in the street. The proposal shows the verandah at the second level (L1) which would fail to maximise the benefit of its provision in terms of weather protection to pedestrians and continuity of existing verandah forms.

s each shop front should abut the site frontage with an angled window arrangement to maximise visibility to passing pedestrians (and motorists). The plans show the shop fronts of shops B and C to be setback by 1.6 - at least 4.3 metres.

s modifications to the layout of units could readily improve their access to northern light as well as significantly improve the articulation of the west and east elevations of the building. The design approach described (eg. see pages 5 and 12 of Mr Sheppard's evidence) would introduce side setbacks and a central light court at level L3 and above, breaking up the building mass along the side elevations. That has considerable merit given the absence of adjacent development of a comparable height or form that means that the west and east elevations of the proposed development would be readily apparent to those in nearby streets such as Cape Street. This approach has the added benefit of significantly improving the amenity of the units without necessarily reducing the yield as well as considerably breaking up the building bulk and horizontal emphasis in the design. In addition, it ensures that amenity to the units is achieved from within the site without unreasonably impeding the re-development potential for adjacent properties.

73. We accept the principle of establishing a podium level to Burgundy Street and stepping the higher levels of development from that point. Mr Sheppard's evidence was that three levels is possible at this point. He nominated an appropriate podium form to Sheffields Lane of two levels "in recognition of its orientation towards a residential zone".

74. [We add that a discussion in terms of relative levels is probably more helpful than one of numbers of storeys given the slope of the land and differences that may result from the internal height of commercial floors when contrasted with domestic floors].

75. We accept the principle of establishing podium levels to both the Burgundy Street frontage and rear laneway. That is appropriate in terms of the Scheme's policies and is also reflected in the Business Plan. However, as shown in the application plans, we find that the proposal does not adequately adopt this approach and, as a consequence, fails to adequately achieve a design outcome that is sensitive to the form of the shopping centre, public realm, pedestrian environment and interface with the Residential 1 Zone. There is some recession to part of the Burgundy Street elevation but only across part of the site. Otherwise, the balconies to the units on levels L2 - L5 are not recessed and the solid balustrade form accentuates the overwhelming visual bulk presented to the retail face of the Shopping Centre. A similar problem applies to the rear of the site, in the northern elevation.

76. We are not persuaded that the reduced option resolves this issue in any substantive way given the relatively small increases in setbacks of balconies relative to the mass of the building and continuation of the same setback line at several levels. The same problem applies to the laneway which abuts the property line at the residential levels L2-L3 and then adopts a narrow setback to L4-L5. A podium effect is not adequately achieved in either elevation.

77. Mr Sheppard's recommendation was that a podium level to the street frontage could be three levels (say, up to 10 metres) before then stepping back by 1.5 metres at each of two further levels, with a much larger recess to a sixth level. His assessment was that this would allow 3.5 hours of sunlight to the southern side of Burgundy Street on 31 August but none in winter. When asked by the Tribunal whether this was sufficient, he replied that he did not consider deeper setbacks were necessary to achieve more sunlight access when taking into account the imperatives of Melbourne 2030.

78. We are not persuaded that the outcome proposed by Mr Sheppard is acceptable in terms of the street environment having regard to the policies of the Scheme and in particular the desire to retain the strip centre as an attractive place for pedestrians and shoppers. The micro-climate is important part of the amenity and "human scale" experienced by those using the centre. Additional recession of the fourth and fifth levels described by Mr Sheppard could achieve a more acceptable outcome, as we are not persuaded that a recess of 1.5 metres at each level is adequate to achieve an acceptable outcome in terms of the design principles at Clause 19.03. We would prefer a two level form to Burgundy Street as a more comfortable fit, which is then recessed at the third and fourth levels, possibly with a deeply recessed (essentially invisible in the terms described by Mr Sheppard we have cited above) fifth level.

79. Having said that, we could not automatically discount other outcomes or envelopes that may be prepared through careful planning and involve innovative architectural solutions. We add that any lift over-run should be properly integrated into the design.

80. It follows from the above discussion that we do not accept Mr Ryan's evidence that the proposal is acceptable as proposed in the application plans (at 8 storeys). We also are not persuaded that the 7 storey form shown in the reduced option is acceptable even with modified setbacks to some elevations.

81. There was some discussion of views from the public realm during the course of the Hearing. Although the proposed development would be evident in many distant views, such as from the pedestrian bridge associated with the Austin Repatriation Hospital, that does not equate to a level of visual bulk that we find should cause the Application to be rejected. Moving closer to the site, and further down the hill, it is obvious that the impact of 5-7 storey building would increase, although the recession of the proposed penthouse levels would reduce their visibility from closer views.

82. Views between ridgelines may be lost and although we understand that the form of the valley may be a feature that is of interest, we are not persuaded on the evidence before us that the proposal would be a major intrusion into those views from yet to be nominated critical vantage points.

83. Mr Patterson expressed concern about the parking arrangements, but did not raise issue with the number of spaces proposed. Concerns including the practicality of the hoist arrangement, lack of information about columns, narrow aisle width to Level L2, lack of setback to Sheffields lane to facilitate loading.

84. Mr Waldon submitted that the proposal does not provide adequate on-site parking and that allowance on-site should be made for parking for the retail premises given that the proposal involves the re-development of the whole of the land rather than, for example, a conversion. The hoist arrangement was questioned by Mr Waldon and Mr Baker.

85. The evidence of Mr Hardingham was that no parking need be allowed on site for the shop uses given that the amount of floor area proposed is slightly less than currently exists on the land. He estimated that the amount of parking provided for the development is reasonable taking into account the provisions of the Good Design Guide and Rescode (although not strictly applicable) and empirical analysis. He said that the layout of the car park was workable, including the proposed hoist system, and that columns would not result of car spaces. Mr Hooper relied on this evidence and also made reference to a contribution made by the subject land to a special rate that provided for the car park now present to the rear of the subject site.

86. We accept that adequate provision can be made to service the residential component of the proposal. We would prefer some parking to be provided on-site for the retail premises given that this is a new development involving the demolition of all buildings on the land. That would allow for some potential sharing of car spaces out of retail operating hours. We have concerns about the limited information relating to columns as that may impact on the number of car spaces when also taking into account the already small areas for storage. There is also the matter of the narrow aisle to the upper level car park which is of some concern.

87. The proposed hoist system drew some criticism from the parties. Mr Hardingham's evidence was that such a system could work, although he could not refer us to any examples in operation when he gave his oral evidence.

88. Given some of our concerns about the hoist system, Mr Hooper suggested that the lowest level of parking (relying on the hoist) be used for storage and shops rather than residents. He added that a reduction in the number of units (per the reduced option and changes to the layout of levels L2 and L3) would mean that adequate resident parking would be available on level L3 alone.

89. We note that no reference was made to the potential for sharing spaces out-of-hours.

90. We were provided with one example by Mr Hooper (via a fax. from Mr Ryan) of where a hoist system could be viewed. That was at No. 31 Spring Street, Melbourne. It could best be described as a car elevator, with a length of around 6 metres and height of 2.1 metres with an additional area of 700mm above the lift and an area below. There were two lifts serving several floors of car spaces.

91. Our inspection confirmed our concerns that the layout of the car park is likely to require revision if such a lift system is to be adopted. The length of the hoist is greater than the area provided, there is no queuing area available and we have no details about the ability to accommodate over-runs above and below the lift.

92. Mr Patterson and some Respondent Objectors expressed concern about the arrangements for loading and the potential impact of the development on Sheffields Lane. The submission made by Mr Hooper, reflected in the reduced option, was that a 2 metre setback of the development can be provided along the lane, at level 1. [The remaining upper levels are proposed to cantilever over the top of this setback].

93. That solution would appear to be attractive in terms of facilitating loading arrangements to the site while avoiding the narrow lane from being unreasonably impacted. We would prefer that enough clearance be provided for trucks to use this area, which is not possible under the reduced option.

94. There remain some outstanding issues in relation to the allocation of adequate space within the development for waste storage for both the shops and dwellings. However, that is a matter that could be addressed.

95. The main issues raised were the loss of sunlight, daylight and outlook from the dwelling to the rear of the restaurant to the west of the subject site.

96. While we understand those concerns, it is relevant that the dwelling is within a Business 1 Zone and that the standards of residential amenity that can fairly be applied differ to those that can reasonably expected in, for example, an established residential precinct that is zoned Residential 1.

97. Some of the changes described in the course of these reasons may well reduce the impacts on that adjacent dwelling in terms of loss of daylight. In any outcome, it would be desirable to ensure that unreasonable overlooking is avoided.

98. A number of other issues were raised by Mr Lee such as structural damage, however, we summarise that this is a matter that is relevant at a later stage, once a planning permit has issued. It would be addressed through the building approval process.

99. There is no dispute that the subject site is suitable for redevelopment involving a retail frontage to Burgundy Street and residential above. However, we are not persuaded that there is any strategic justification for the scale of development proposed. The expert evidence presented on behalf of the Applicant is not consistent and clearly various revisions were proposed to the development during the course of the Hearing. We have been persuaded by much of the evidence in relation to building form presented by Mr Sheppard in preference to that of Mr Ryan, but find that further modifications would be necessary beyond the building envelope Mr Sheppard proposed. We also find that the extent of modifications required would vary the proportions of the building and therefore requires a review of the architectural response. Then there are also the detailed issues relating to the car parking and servicing arrangements.

100. Mr Hooper urged us to direct the issue of a permit, with necessary changes, if possible. However, we are not persuaded that the changes necessary to address the matters raised in our reasons can be addressed by permit conditions. A more fundamental review is necessary that warrants a fresh permit application.

For the above reasons, the Application for Review is not allowed and we will order that the decision of the Responsible Authority be affirmed.

Environment Act 1987

Dzanovski v Banyule CC [2003] VCAT 217

At a glance

Court

Decision date

Before

Source

Judgment (169 paragraphs)

Dzanovski v Banyule CC [2003] VCAT 217 (20 February 2003)

Parties

Legislation Cited (1)