APPLICATION FOR REVIEW NO P959/2004 (REVIEW AGAINST NOTICE OF DECISION TO GRANT A PERMIT)

The decision of the Responsible Authority in relation to permit application No TP03/827 is affirmed, subject to changes to conditions. A permit is granted and directed to be issued pursuant to the provisions of Section 85(1)(b) of the Planning and Environment Act 1987 for the land at 80 Jolimont Street, Jolimont. Conditions contained in the Notice of Decision to Grant a Permit dated 17th March 2004 are amended as set out in the following Order.

APPLICATION FOR REVIEW NO P1260/2004 (REVIEW AGAINST CONDITIONS)

It is the Order of the Tribunal that in 'What will the permit allow?', all the words be deleted and replaced with the following:

Partial demolition, alterations and additions to the existing ground and first floor restaurant, and construction of an additional two storeys for the purposes of a caretakers dwelling in accordance with the endorsed plans.

It is the Order of the Tribunal that all of Conditions 1 - 8 (numbered 1-6, 9 and 10 in the Notice of Decision) be deleted and replaced with the following new conditions:

1. Before the development starts, 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 generally in accordance with the application plans, but modified to show:

a) No increase in the restaurant floor area available to the public for seating;

b) Deletion of the lift overrun and redesign of the stair roof;

c) An increased front setback of the third floor level to 7.6 metres as measured from the existing ground floor parapet, so that the third level does not protrude forward of the front of the top level of the building to the west;

d) A rear setback of the third level of 3 metres measured from the southern boundary of the laneway;

e) The rear parapet of the roof deck is to be set back 3 metres from the rear edge of the building so it does not protrude forward of the top level of the building to the west;

f) No part of the building is to protrude over the rear laneway;

g) Confirmation that the rear first floor window of the restaurant will not be openable;

h) Confirmation that the dwelling will achieve a 5 star rating or better using the Sustainable Energy Authority of Victoria 'First rate' system or equivalent;

j) Details of all rubbish storage, disposal and collection methods, including hours of pick up.

2. The buildings and works as shown on the endorsed plans must not be altered or modified without the prior consent of the Responsible Authority.

3. This permit will expire if one of the following circumstances applies:

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

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

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

Mr Hohnen (for East Melbourne Group Inc), Ms Hill, Ms Russell and Ms Rappolt (in P959/2004)

Mr Cicero, Solicitor of Best Hooper Solicitors (in P1260/2004)

Mr Cicero Solicitor of Best Hoper Solicitors (in P959/2004). Mr David Bick Architectural Historian and Conservation Architect, and Mr Barry Goold Town Planner of Urban Planning and Development were called to provide expert evidence.

Mr Matthew Townsend of Counsel by direct brief. Mr Bryce Raworth, Conservation Consultant and Architectural Historian was called to provide expert evidence.

1 These are two concurrent applications under the Planning and Environment Act 1987 in relation to a proposal at 80 Jolimont Street, Jolimont. The applications are as follows:

i P959/2004 is an application under Section 82 of the Planning and Environment Act 1987 to review a decision by Melbourne City Council to Issue a Notice of Decision to Grant a Permit for partial demolition, alterations and additions to the existing ground and first floor restaurant, construction of an additional 2 storeys for use as a dwelling and waiving of standard car parking requirements.

ii P1260/2004 is an application under Section 80 of the Planning and Environment Act 1987 against conditions imposed by the Melbourne City Council in Permit Application TP03/827. Specifically the request was to delete Conditions 1(a), 1(b), 1(c), 1(d) and 4. The Notice of Decision to Grant a Permit was issued on 17th March 2004 and contained 10 conditions.

2 Mr Townsend, Ms Hill, Mr Hohnen (for the East Melbourne Group Inc) and Mr Cicero made written and verbal submissions. Ms Rappolt and Ms Russell also made verbal submissions in support of the submissions made by Mr Hohnen and Ms Hill. Plans, photos and other documents submitted at the hearing have been retained on Tribunal files. Evidence was called for the permit applicant from Barry Goold Town Planner and Surveyor of Urban Planning and Development and Mr David Bick Architectural Historian and Conservation Architect. Mr Michael O'Brien Traffic Engineer of TTM Consulting Pty Ltd also provided a written statement but was not called as the existing use is not being enlarged and no waiver is required for car parking. Evidence for the Responsible Authority was called from Mr Bryce Raworth, Conservation Consultant and Architectural Historian.

3 The site and locality (including Ms Hill's apartment in Agnes Street) were inspected by the Tribunal in the week following the hearing.

4 The site is located on the north side of Jolimont Street. The site and adjoining properties facing Jolimont Street are zoned Business 5 as are residential properties to the north in Agnes Street. A Heritage Overlay (HO2) and a Design and Development Overlay (DDO22) apply to the review site. Other relevant Planning Scheme provisions include Clauses 14, 15.11, 19.03, 21 (relevant sections of Part 1 and Part 2), 22.05, 22.17, 52.06 and 65. Melbourne 2030 is also applicable.

5 The proposal involves demolition of buildings at the rear of the property, internal alterations to the ground and part of the first floor (with a 3 square metre increase in size of the restaurant) and construction of a second and third storey addition containing a caretaker's dwelling. Although plans show the restaurant being increased by around 3 square metres in size, for all practical purposes there has been no increase in restaurant floor area. I deal with this matter later in my decision.

6 In this instance the ambit of discretion is quite limited. The following summarises the situation:

a The use of the land for a 'Restaurant' does not require a permit because the restaurant already exists (even if closed at present).

b The use of land for 'Caretakers Dwelling' does not require a permit.

c The use of land for 'Dwelling' does not require a permit provided it is not in the same building as an office.

d Buildings and works associated with restaurant, caretakers dwelling and dwelling require a permit but are exempt from advertising and review rights unless within 30 metres of land (other than a road) which is in a residential zone, land used for a hospital or an eduction centre or land in a Public Acquisition Overlay to be acquired for a hospital or an eduction centre (the East Melbourne Group Inc and Ms Hill are therefore limited to making submissions for buildings and works in relation to the overlays).

Demolition and buildings and works require a permit.

b Parking only required for restaurant if there is an increase in the area available to the public for seating (and only for the additional floor area).

(Note: Despite submissions by Ms Hill, the provisions of Clause 52.07 for loading and unloading of vehicles do not apply in this case).

7 A requirement for additional parking is only triggered for the restaurant if there is an increase in the floor area available to the public for seating and the additional parking is only required for that additional floor space (3 square metres in this case although by condition I have required that there be no increase in floor area available to the public for seating). At present no car parking is required to be provided for the restaurant (although in reality 3 spaces are available in the rear yard).

8 In relation to caretaker's dwelling, one car space is required to be provided and in the case of dwelling (where only one is being constructed), such provision is to be to Council's satisfaction.

9 The provision of two spaces in the new development will comply with the one space requirement for the caretakers dwelling plus provide one additional space for the restaurant (which is one more than the non-existent requirement at present).

10 Although car parking and on street congestion is clearly a major concern for Ms Hill and the East Melbourne Group Inc, given the limited ambit of discretions triggered by this proposal, it is not possible for me to consider or require car parking in relation to the ongoing use of the site for a restaurant. The only requirement relates to caretaker's dwelling and in this regard, one car space for a two-bedroom residence complies with the relevant provision of Clause 52.06-5 and is therefore quite acceptable.

Heritage and Design and Development Design Overlays

11 In relation to heritage matters, two experts presented evidence to the Tribunal - Mr Raworth for Council and Mr Bick for the permit applicant. Both expressed satisfaction with the current design. I note that Mr Raworth supports the current design despite Council officers requiring modifications to increase front and rear setbacks and lower the height of the building by removing the lift overrun and the roof top deck.

12 In relation to the Design and Development Overlay, Schedule 22 includes a 9 metre height limit for buildings between Jolimont Terrace and Agnes Street, and with an 11 metre height limit west of Agnes Street rising to 15 metres along Jolimont Road. In considering whether the 9-metre height limit should be exceeded it is necessary to consider the design objectives and outcomes listed in Schedule 22. It is also necessary to consider the decision guidelines listed in Clause 43.02-5 for the Heritage Overlay.

13 As in all cases, it is also necessary to consider the site context in determining whether a proposal is acceptable - one of design principles included in Clause 19.03 states that:

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

14 Other design principles listed in Clause 19.03 (and in the Decision Guidelines contained in Clause 65) must also be considered and a balance struck between the many, varied and sometimes competing matters listed in the Planning Scheme (although only those which are applicable to the ambit of discretion).

15 Having regard to all these matters I consider that the proposal needs some further, relatively minor modifications to make it acceptable. I do not agree with Ms Hill and the East Melbourne Group Inc that the height of the building should be limited to 9 metres. However I do consider that the building needs modification to better reflect the specific site context created by the building to the west. This will allow for a building much higher than 9 metres, but one that will sit comfortably within the built form in this lower section of Jolimont. In that respect, I consider that the Council was on the right track with conditional changes at the rear of the building, although these need finessing in order to achieve a more desirable and site responsive outcome.

16 Given the specific site context and the higher buildings to the east and west, I consider that a higher building can be justified provided the objectives and outcomes of the two relevant overlays are satisfied. In relation to the heritage overlay I largely accept the evidence of Messrs Raworth and Bick that the proposal does accord with the relevant policies and guidelines in relation to heritage and conservation issues. It is not necessary for the extension to be fully concealed and in a Level 2 Streetscape higher rear parts of a new building only need to be partly concealed. By condition, Council required the third level to be set back 8 metres from the front parapet. There was some debate amongst parties about which parapet was the reference point, but taking a common sense approach I have adopted the front street parapet as the reference point. On that basis the proposal is setback around 6.4 metres from that parapet. I have taken the view that the top level of the extension needs to be consistent with the top level of the building to the west - which results in a setback of 7.6 metres rather than 8 metres as desired by Council. This will better conceal the building from the west while still providing views from the south west, south and south east. Because of the existence of trees in the park and along the street (both evergreen and deciduous), views of the new extension will be very limited and largely concealed from the public domain. The extensions will certainly not appear as a jarring or discordant element and their design would accord with policy requiring partial concealment.

17 In relation to rear setbacks, the Council's proposal for a 5-metre setback will bring the third level (and the roof deck above) close to the profile created by the existing building to the west. I agree with the general approach taken by Council but consider that it needs fine-tuning. A setback of 3 metres will bring the top level of the proposed building in line with the second top level of the building next door. It will still protrude in front of the top level of the adjoining building by about 3 metres but only for a height of around 2 metres. The roof deck parapet is setback 2.5 metres from this edge and will thus protrude by around 500mm in front of the neighbouring wall. I have required this parapet to be setback by a further 500mm to achieve greater visual consistency with the adjoining wall. The additional setback also has the consequential benefit of limiting the potential for people to stand on the deck and look down onto the neighbouring terrace.

18 Although these two changes at the rear may appear insignificant, they will together create a more reasonable visual transition between the two buildings, will allow the existing deck to the west to retain eastern sunlight, and will provide more articulation to the residential property to the north while still allowing for a reasonable floor area within the new dwelling. It may mean however, that there needs to be some consequential internal reorganisation of the dwelling at this level. Although the roof deck will be reduced in area it will still provide a very usable space with good solar orientation and privacy. Changes suggested by Mr Cicero at the hearing to remove the lift overrun and redesign the stair access with a sloping roof will also assist in reducing visual bulk and result in a building that sits more comfortably with the adjoining building.

19 A major concern for Ms Hill was the impact on her views towards Government House and possible overlooking into both her property and that of her neighbours. I reiterate that there are no third party review rights in relation to buildings and works for restaurant and caretakers dwelling - although rights exist under the overlays.

20 In relation to loss of views, there is nothing in the Planning Scheme or the specific overlays that requires the protection or sharing of views. While at least two of the top-level apartments at No 22 Agnes Street enjoy southern views between the two high buildings and across the top of the terraces, other more oblique views also exist towards the south west. These views will remain, as will partial views across the top of the two terraces to the east of the review site. The view corridor across the top of the terraces is narrow, although I agree with Ms Hill that the view southwards is pleasant. However given the Business 5 zoning, the specific contents of the overlays (and hence ambit of discretion) and the lack of specific provisions relating to views, I am not convinced that the proposal should be reduced in height to maintain these limited views.

21 In relation to overlooking, the north facing windows and roof deck far exceed the applicable 9 metres standard included in ResCode. Although this is not a ResCode application the 9-metre separation distance provides a useful yardstick. It is unreasonable to expect that all overlooking (particularly at distances which well exceed the ResCode standard) will be avoided in inner city suburbs - this is not a leafy low-density suburb on Melbourne's outer fringe. In relation to downward views into the residential property to the north of the lane (also zoned Business 5), I note that these owners have not sought to review the Council decision. I also note that this house has a front yard, which although fenced, is only partly private. On the day of my inspection the whole yard could be clearly seen from the street and is also overlooked from existing apartments in the block occupied by Ms Hill. In any event, the parapet of the roof top deck is to be set back 3 metres from the edge of the building and hence no downward overlooking will be possible from the deck. There maybe opportunities for overlooking from the north facing bedroom of the apartment, although with a 3 metre setback (plus the width of the lane) such potential will be minimal. The Tribunal has previously commented about opportunities for overlooking from bedrooms compared to living areas and has often taken a different approach to screening when it involves views from bedrooms.

22 At the end of the hearing two residents - Ms Russell and Ms Rappolt - also addressed me. They raised matters previously put forward by Ms Hill and Mr Hohnen. Ms Russell in particular was concerned about impacts on pedestrians and shadowing created by the building on footpaths and the park. I am satisfied that with the recession of the top levels of the extension there will be no adverse effects on pedestrians using either Jolimont Street or Yarra Park.

23 My discussion above addresses the four condition 1 requirements sought to be reviewed by the permit applicant - (1(a), (b), (c) and (d)). In relation to Condition 4, Council and the permit applicant agreed that if the word 'entertainment' was changed to 'music' then Condition 4 could remain. Council included this condition to prevent loud music and conceded that live entertainment could include quiet entertainment (including as suggested by Mr Cicero -magicians and the like). While I support the changed wording, I have a more fundamental concern about the inclusion of such a 'use' condition. I now discuss that matter.

24 Four of the conditions included in the Notice of Decision relate to the restaurant use (3, 4, 5 and 6). I have considered whether conditions relating to hours of operation, compliance with the SEPP and patron noise should be deleted. Despite the agreement between Council and the permit applicant, Condition 4 as modified would also fit into this category. Although Conditions 3, 5 and 6 were not sought to be reviewed by the permit applicant, they properly relate to the use of the land for restaurant and were raised by me during discussion of conditions included in the Notice of Decision to Grant a Permit. Both Mr Cicero and Mr Townsend made submissions as to whether conditions 3, 5 and 6 should be retained in any permit that may issue. Mr Cicero took the view that they shouldn't be retained as they relate to the existing use of the land for a restaurant - a use which is not changing or being enlarged and hence not subject to any approvals other than for buildings and works.

25 In support of the retention of these conditions, Mr Townsend referred me to a decision by Member Byard in John Paul College v City of Frankston (1991) 7 AATR 185. Mr Byard stated that:

In my view, if in circumstances such as this a development permit is sought which would vary, intensify or extend the use in some manner so as to affect the surrounding amenity or give rise to other related town planning issues, then provided a condition is reasonably related to the development then conditions affecting the use could in those circumstances be imposed.

26 In Roy Boyz Pty Ltd v Port Phillip CC & Ors [2002] VCAT 907 (15 August 2002) Deputy President Horsfall discussed the above case and also Challister Limited v City of Caulfield (1992) 8 AATR 22. The condition being reviewed in Roy Boyz Pty Ltd v Port Phillip CC & Ors related to a limitation on the number of patrons allowed at an existing hotel in South Melbourne. The permit application had been for buildings and works to enclose a previously open courtyard and a triggered a car parking requirement. In considering submissions in relation to the above cases, Mr Horsfall stated that:

34. The test for validity of a condition on a permit is well established. The test makes no reference to whether the permit or the condition are for "development" or for "use" We agree with what was said in Challister, but do not consider that the last paragraph quoted above (included in my paragraph 25) means that the only circumstance in which a "use" condition may be applied to a "development" permit is where there is a variation "intensification or extension of the use". The last paragraph gives those circumstances an example of appropriate circumstances, but the Member confirms that the test is that the condition must be reasonably related to the development. The paragraph also adds that a use condition on a development permit may be appropriate where the circumstances give rise to other planning issues.

35. Accordingly the determination of the question of law is that the condition is not void by reason of it being a "use" condition applied to a "development" permit.

27 Unlike the case quoted above, there is no proposal at 80 Jolimont Street to increase the restaurant floor area available to the public and in my opinion, there are no other planning issues arising from the buildings and works occurring to the restaurant. There are planning issues concerning the construction of the dwelling sitting above the restaurant (in terms of height, setbacks, etc) but these do not relate to conditions about the hours of operation, compliance with the SEPP, music and patron noise - all specifically targeted at the restaurant use. I therefore consider it quite appropriate that I delete the four conditions referred to in paragraph 24. I also note that the matters dealt with in these conditions will be covered under other legislative arrangements (for example, compliance with the relevant SEPP or licensing conditions).

28 I have also made some minor changes to the permit preamble to remove reference to car parking waiver and the use of a dwelling since these are not part of the permit approval. I have also referred to a caretakers dwelling (not dwelling) as this was what was included in the permit application.

29 Having regard to the above, I will Order that in relation to P959/2004, Council's decision be varied and that a permit issue subject to conditions included in the Order.

30 Having regard to the above reasons I will vary Council's decision in relation to P1260/2004 and Order that all the conditions be deleted and that they be replaced by the conditions included in the Order.