E A H Batman Pty Ltd v Melbourne CC

E A H Batman Pty Ltd v Melbourne CC - [2011] VCAT 1477 - VCAT 2011 case summary — Zoe

[37]

During Day 2 of the hearing, we raised a question about the appropriateness of including the original roller door in the design, particularly given the combined design of the proposed access and waste collection areas. We acknowledge the requirement to incorporate the original roller door was imposed as part of the previous decision of the Tribunal. During that hearing, Ms Gould gave heritage evidence for the Council stating that she wanted it retained. At that time, Mr Lovell acknowledged its retention was desirable, but not necessary. He suggested it could remain in place in an 'up' position in perpetuity, which had been a common occurrence with its former industrial use for much of each day.
The amended plans now contain a combined accessway into the car park and the waste room with a security roller shutter door set at a 90° angle from the front facade, well back from the front facade and behind a substation. We expressed concern on Day 2 of the hearing about the security of this area given the original roller door is likely to remain open for much of the time[7].
On Day 2, Mr Lovell gave evidence the roller door is not intrinsic to the heritage value of the building, and he expressed the view that a new roller door could be incorporated into the current location of the original roller door. There was discussion during the hearing as to whether there should be a roller door set back from the street frontage with either a shallow or a deeper setback. Mr Lovell stated a like for like replacement would be the preferred outcome.
Our consideration is to balance the heritage benefits of retaining the original roller door with the benefits of providing safe and secure access to the site. We are persuaded by Mr Lovell's evidence that the original roller door is not intrinsic to the heritage value of the building. On this basis, we consider it is preferable to avoid creating an open space accessible from the street by members of the public that could be a security risk. Hence, we have required a new roller door in the current location of the original roller door as a condition on the amended permit issued.

[54]

Ms Donald's evidence also relies upon schedule 2 in clause 52.06, which was introduced since the previous decision of the Tribunal. The schedule applies to some inner areas close to the CBD and requires planning permission to provide car parking spaces in excess of one car space per dwelling. Ms Donald stated the schedule requires "no parking provision" and the area it covers, which is located approximately 125 metres east of the site, is "a negligible distance from this site"[12].
On Day 1 of the hearing, Ms Gee acknowledged two car spaces per dwelling "may be a bit over the top" and suggested one car space per dwelling may be more reasonable for one and two bedroom apartments. She pointed out a decision was made not to extend schedule 2 into this specific area of West Melbourne and Flagstaff train station is closed on the weekends. She submitted these are therefore reasons not to allow the reduction in car parking sought.
On Day 2 of the hearing, Ms Donald acknowledged that this site is just outside the schedule 2 area and stated she is unaware of any particular reason why that is the case. Ms Donald stated the car parking rate contained in schedule 2 has been applied to developments outside of the schedule area and that there is nothing about this area that makes it fundamentally different. On face value, there would appear to be some merit in Ms Donald's opinion, but the problem we face is the lack of empirical analysis to support this opinion.
On Day 2 of the hearing, Ms Donald referred to a development recently approved by the Tribunal at 49-53 Batman Street that contains no car parking. However, we are not persuaded that this development is comparable with this proposal. The apartments in 49-53 Batman Street are much smaller and the majority of them are what we would describe as 'bedsits'.
Like Ms Gee, we find a requirement for two car spaces per apartment is excessive. We agree the proximity of this site to the CBD 'points to' a reduction in car parking. However, we are not persuaded by Ms Donald's evidence that an appropriate car parking provision is 0.34 car spaces per apartment.

[60]

In regard to car parking requirements, pages 3 and 4 of the internal comments outline the requirements of clause 52.06, clause 55.03, the existing permit, 2006 ABS data, visitor parking and the proposed car parking provision.
In regard to clause 52.06, the internal comments acknowledge the standard car parking required would be 310 spaces; but it also notes the proposed office floor space has an area of approximately 77m², with a statutory requirement to provide three car spaces[14]. This is not mentioned in either Ms Donald's evidence or the submissions on behalf of the Applicant. The internal comments go on to recommend the provision of one car space for this office. In the previous decision of the Tribunal, it was proposed to provide one car space for the café staff and 111 for the residential apartments. Given the office effectively replaces the cafe, the office floor area is very small, and the Mixed Use zoning of the land, we are satisfied a reduction in the office car parking provision from three to one car space is justified.
The internal comments then refer to clause 55 that requires one car space for a one or two-bedroom apartment and 0.2 of a visitor car space per apartment, which equates to a requirement for 155 residents spaces and 31 visitor spaces. The internal comments refer to the 2006 ABS data "within Melbourne" for 'flat, unit or apartment' that indicates 59% and 38% of tenants in one and two bed apartments respectively do not own cars. This means the amended plans could generate a demand for around 75 residential car spaces.
The internal comments then state the provision of one car space for each two-bedroom apartment with the remaining two spaces allocated to one of the one-bedroom plus study apartments and the office is "generally in accordance with the VCAT determination for the residential apartments". It is unclear to us how a car parking requirement of 155 car spaces or 'demand' for 75 residential spaces has suddenly transformed into the current proposal for 53 spaces (including 52 residential spaces) and how this is acceptable.
At this point, it must be remembered that this is not a new permit application, but rather an amendment to an existing permit. Hence, we think it would be helpful to outline the residential car parking provision that has been approved for this permit, and what is now being sought.

[75]

On Day 1 of this hearing, Mr Perrott advised that the Council's traffic engineers provided verbal advice that the change from ramps to car lifts and the turning circles were 'ok' as part of the Council's endorsed plans process. However, there is limited information on both the Council endorsed plans and these amended plans about how the car park will function.
On Day 1 of this hearing, Members Naylor and Chase cross-examined Ms Donald about the adequacy of the access arrangements, particularly the ability to turn safely and efficiently in and out of the car lifts and the car spaces. Ms Donald stated she was never engaged to review the appropriateness of the car space dimensions and aisle widths. She also stated she believed the aisle width is 6.2 metres as shown on the Council endorsed plans.
On Day 2 of this hearing, Ms Donald was again asked about the appropriateness of the access arrangements. This time she made a number of statements including:
- the car space dimensions are in accordance with the Australian standard;
- she believes the car lifts are 3 metres wide but she has not seen specification details;
- there are no dimensions of access aisles on the plans;
- the aisles and car lifts are design detail issues that can be resolved through permit conditions;
- car spaces 18 and 19 need to be moved approximately one metre further north to improve accessibility;
- whether car lift 1 should be moved further south to provide better access "comes back to the need for two car lifts";
- a three point turn into or out of a car space is acceptable for residential movements in the Australian standard; and
- she thought Council would have looked at the dimensions of the car spaces and access aisles.
Ms Donald also suggested improved access into and out of the car lifts may be enhanced by the removal of one 'middle' car space on each car park level so that cars can access both the east and west sides of each level. We agree with this suggestion as it will improve both efficiency and safety within the car park. We also consider car lift 1 should be moved further inside the building closer to the lift core to minimise potential conflict and delay for vehicles entering and leaving the site.
We appreciate that Ms Donald was never actually engaged to review whether the car space dimensions and access aisles, including the turning circles in and out of the car lifts were appropriate. Nevertheless, during the hearing neither the Council nor the Applicant was able to demonstrate to our satisfaction that the proposed parking levels (both in the amended plans and the Council endorsed plans) are accessible efficiently and safely.
We note the Council's internal traffic engineering referral comments on the amended plans raise some similar concerns, including:
- a swept path analysis should be provided to demonstrate that access to all car spaces opposite the proposed lifts is satisfactory;
- some spaces appear to be provided with reduced widths and should be identified as small car spaces;
- the architectural plans are not dimensioned and should be to ensure the car parking bays and access are generally in accordance with Australian Standard AS/NZS 2890.1:2004;
- a signalling system is needed within the car park to alert drivers when a car lift is in use within the car park, and at the entrance from the street so that vehicles do not conflict on the single lane section of the access from the street frontage;
- the signalling system should include an alert for pedestrians on the footpath when a vehicle is exiting the site; and
- there is a 2.08 metre level difference between the crossover and the eastern section of the ground level car park that should be reviewed to show the correct levels at the front of the site and the grade of the access.
It is evident from both Ms Donald's evidence and the internal comments that there are a number of uncertainties about the adequacy of the design and layout of the car parking and access, including the appropriateness of the location of car lift 1. We agree with the submissions that it is not uncommon for permit conditions to be imposed requiring the detailed design of the car park levels to be prepared and/or finalised. We have decided to include conditions to this effect. However, in this case, the number of matters commented upon by Ms Donald and in the Council's internal comments raise doubt in our minds as to whether an appropriate detailed design, when completed, can provide 112 car spaces as required by the previous decision of the Tribunal. We think it is possible that achieving an appropriate detailed design will result in greater floor area being required (e.g. all of level 2 and possibly a further level) to provide the required 112 car spaces. But this is a matter for the Applicant to determine with the Council whilst be cognisant of the need to ensure any approved plans are generally in accordance with the amended permit.
We are satisfied that the ramp system can be replaced by car lifts. We consider that two car lifts should be provided to service four levels of car parking. We also consider car lift 1 needs to be moved further south (further inside the building) to minimise the need for three point turning to access this car lift and to minimise the potential for conflict and delay for vehicles entering and leaving the site. Mr Townshend suggested that the car lift could be relocated to the adjoining car space to the south, however we think the correct location needs to be determined having regard to the objectives of minimising three point turning and the potential for conflict and delay. We have decided to require the detailed layout and design to be provided to the satisfaction of the Responsible Authority (i.e. the Council).
We acknowledge that, with the detailed layout and design issues already identified, it may not be possible to provide 112 car spaces in the four levels of car parking. It will then be up to the Applicant to decide whether to provide this level of car parking or whether to seek a further amendment to the permit pursuant to section 87A to reduce the car parking provision. As we have already identified, any further proposal to reduce the car parking provision needs to be justified. Justification to reduce the planning scheme's car parking requirements needs to be undertaken by applicants and assessed by Councils with some rigour, as it is important to applicants and the broader community that there is consistency in decision making, otherwise it would be an unfair and ad hoc approval process.

[76]

Our consideration of the merits of these amended plans has led us to conclude that the proposed changes to the layout and appearance of the residential tower are appropriate having regard to the heritage significance of the former industrial building and the broader streetscape and urban design considerations subject to Mr Negri's recommendations and the provision of a schedule of colours, materials and finishes. We are satisfied with the modifications to the extent of demolition of the former industrial building subject to Mr Lovell's recommendations regarding the new roofing over the existing roof trusses of the section of the former industrial building to be retained.
However, we are not persuaded that the car parking provision is adequate or appropriate. We are not persuaded about the efficiency and safety of the proposed car park layout and access, although we are prepared to leave this to the Responsible Authority to assess and approve. Mr Townshend submitted it is a relevant and important consideration that development has already lawfully commenced, and we agree. If this proposal was for a brand new development, we may well have determined to refuse the application. However, given the basement level has been excavated and the core structure is being constructed, we have decided to amend the permit to allow the changes to the layout and appearance of the development.
Due to our concerns about the car parking provision and layout, we have decided not to amend the conditions other than to include conditions regarding waste management; specifying what the provision of car parking must be; and that the car parking levels and car lifts must be appropriately designed[19].
We note that this decision not to allow the amendments to the provision of car parking and consequently the number of levels required for car parking will affect the overall number of apartments. However, this decision generally accords with the car parking provision included in the Council endorsed plans, which presumably form the basis of the construction that has commenced.
We now leave the matter of preparing further amended plans that are generally in accordance with the modified condition 1 of this permit to the Applicant. We rely upon the Council to undertake its role as the Responsible Authority with care and attention so as to ensure that the new endorsed plans are generally in accordance with the amended planning permit.

[80]

Within 6 weeks of the date of this amended permit, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the amended plans substituted by VCAT in its order of 2 June 2011 but modified to show:
- (a) A new roller door in the current location of the original roller door;
- (b) The description on the second floor plan of the roof over the portion of the former industrial building being retained changed from "new roofing over existing roof trusses" to "the new roof to match the former roof it is replacing, including corrugated iron material and the correct pitch";
- (c) The external expression of the tower generally in accordance with the images contained in Appendix 3 of Mr M Negri's P3108/2010 expert witness report dated June 2011, including:
  - (i) setting back the 2nd and 3rd levels of the building from the Batman Street frontage to create a sense of a tower floating above the retained building when viewed from the north side of Batman Street;
  - (ii) glazing the entire northern facade of the tower to produce a clean presentation to the street;
  - (iii) the provision of balcony space to provide interest and a uniform pattern in the northern facade;
  - (iv) removal of the red framing around central elements of the north facade; and
  - (v) removal of the graded paint colour from the base of the tower to the parapet in favour of cleaner mid-grey and black tones to provide distinction from the retained heritage building and to better relate to the original proposed external colour scheme.
- (d) A schedule and samples of all external materials, colours and finishes showing the materials, colours and finishes of all external walls, roof, fascias, window frames, glazing types (including whether the balconies contain clear, tinted or dark glass), doors, balustrades and paving.
- (e) The provision of two car parking lifts with car lift 1 (closest to the street) moved further into the building to minimise the need for three point turning and the potential conflict and delay for vehicles entering and leaving the site;
- (f) The provision of 112 car parking spaces, including one car space for the office floor area, in four levels of car parking with two of these levels replacing approximately two levels of apartments;
- (g) The specifications of the car lifts, including their model number and make and dimensions;
- (h) Fully dimensioned plans of the car parking levels to ensure the car parking bays and access are generally in accordance with AS/NZS 2890.1-2004 or the planning scheme;
- (i) A notation that any smaller parking spaces not complying with (h) above will be allocated to small cars only;
- (j) A swept path analysis to demonstrate that access to all car spaces opposite the car lifts is satisfactory, including consideration as to the most appropriate location for the car lifts within the car park;
- (k) The car park levels, other than ground level, having an aisle at one end that allows vehicles to move between the northeast and southwest sides to assist in the efficient use and operation of the car lift system;
- (l) A signaling system adjacent to the car lifts alerting other users that the lift(s) is/are in use, and a signaling system alerting pedestrians on the street footpath when a vehicle is exiting the site;
- (m) The levels of the ground floor car park and the driveway leading into it off Batman Street designed in accordance with AS/NZS 2801:2004;
- (n) Details of any wall mounted bicycle racks including their model number and make. All mounted racks must be installed according to manufacturer's requirements, planning scheme requirements or the requirements of Bicycle Victoria to the satisfaction of the Responsible Authority.
The use and development as shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.
Prior to the commencement of the development, including demolition, a detailed construction and demolition management plan must be submitted to and be approved by the Responsible Authority. This construction management plan is to be prepared in accordance with the City of Melbourne - Construction Management Plan Guidelines and is to consider the following:
- (a) Public safety, amenity and site security;
- (b) Operating hours, noise and vibration controls;
- (c) Air and dust management;
- (d) Stormwater and sediment control;
- (e) Waste and materials reuse; and
- (f) Traffic management.
Prior to the commencement of buildings/works other than demolition works, the applicant must provide an environmental site assessment report by a suitably qualified expert. The report must include recommendations as to whether the history of the site and the proposed use of the site requires that an environmental audit ought to be undertaken pursuant to the Environment Protection Act. If no environmental audit is required, the report must provide recommendations about the management of any potentially contaminated land during and after construction. The report will form part of this permit and the applicant must comply with the recommendations to the satisfaction of the Responsible Authority.
The dimensions and layout of access lanes must be in accordance with the requirements of Australian Standard AS 2890.1-1 2004, Parking Facilities, Part 1: Off-Street Car-Parking or be to the satisfaction of the Responsible Authority.
Before the occupation of the development, a traffic management plan must be prepared, approved and implemented to the satisfaction of the Responsible Authority. This plan must detail the installation and operation of the signaling systems required within the car park and adjacent to the street footpath.
Any mechanical exhaust systems for the car park must be sound attenuated to prevent noise nuisance to the occupants of the building and surrounding properties to the satisfaction of the Responsible Authority.
All garbage and other waste material must be stored in an area set aside for such purposes to the satisfaction of the Responsible Authority.
No garbage bin or waste materials shall be deposited or stored outside the site and bins must be returned to the garbage storage area as soon as practicable after garbage collection.
All service pipes, apart from roof down pipes, must be concealed from the view of a person at ground level within common areas, public thoroughfares and adjoining properties.
Glazing materials used on all external walls and balconies must be of a type that does not reflect more than 15% of visible light when measured at an angle of 90 degrees to the glass surface to the satisfaction of the Responsible Authority.
The Owner of the site must construct a drainage system, incorporating water sensitive urban design features within the development and make provision to connect this system to the Council's stormwater drainage system in accordance with plans and specifications first approved by the Responsible Authority, Manager, Engineering Services.
The Owner of the site is not permitted to alter the existing footpath/road levels in Batman Street for the purpose of constructing new vehicle or pedestrian entrances without first obtaining the written approval of the Responsible Authority, Manager, Engineering Services.
Waste material may only be removed from the premises between the hours of 9.00 am and 4.00 pm Monday to Friday and 9.00 am to 6.00 pm on Saturday, Sunday or public holidays.
Within 6 months of the date of this amended permit, a Waste Management Plan (WMP) shall be prepared and submitted to the City of Melbourne, Engineering Services. This WMP should detail waste storage and collection arrangements and be prepared with reference to the City of Melbourne's Guidelines for Preparing a Waste Management Plan. Waste storage and collection arrangements must not be altered without prior consent of the City of Melbourne - Engineering Services. When approved, the WMP will form part of this permit.
This permit will expire if one or more of the following circumstances apply:
- (a) The development is not started within two years of the date of this permit; and/or
- (b) The development is not completed within four years of the date of this permit.

At a glance

Court

Decision date

Source

Judgment (98 paragraphs)

Parties

Cases Cited (1)

E A H Batman Pty Ltd v Melbourne CC (includes Summary) (Red Dot) [2011] VCAT 1477 (3 August 2011)