Exploration Lane Developments Pty Ltd v Melbourne CC [2012] VCAT 152

Exploration Lane Developments Pty Ltd v Melbourne CC [2012] VCAT 152 | Case summary | Zoe

[35]

Exploration Lane Developments Pty Ltd is seeking to amend an existing permit. In a general sense, the amendment involves an increase in the building's height and accommodation from 25-storeys and 62 apartments to 34-storeys and 89-apartments; the other significant change involves amending the layout of dwellings on various floors. Otherwise, the general character of the building remains much the same.
Council has opposed the application on the ground that there is no justification for the additional height and that it raises anew Council's concerns about the extension of height on a building of unsuitable typology. Mr. Holdsworth, expert planning witness called by Council, opposed the amended plans on a number of grounds: the extra height was inappropriate on a simple, cuboid-shaped building, the amended layout of the dwellings would result in these dwellings experiencing poor internal amenity and the additional floors would have a detrimental effect on nearby residential buildings and public spaces. Mr. Holdsworth was also critical, for much the same reasons, of the already approved development.
Council also argued that it is either "not appropriate" to grant this 87A[1] application or that, if it is, any assessment should be undertaken "very cautiously", as this would fly in the face of previous Tribunal concerns about such appeals, in particular that they should not be used to undo the intent of the Tribunal's original decisions.
The following are the questions that I conclude I should address:
- is it appropriate to amend a permit at all in this case, given previous Tribunal guidance on the use of s 87A to amend permits and, if so
- is the increased height acceptable in urban design terms, either generally or for a building lacking the podium/tower typology
- would the amended internal layout of the dwellings provide an acceptable level of internal amenity
- Would the increased height cause an unreasonable loss of amenity for nearby dwellings or public spaces?
The Tribunal is required to decide whether a permit should be amended and, if so, what conditions it should apply to the amended permit. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Melbourne Planning Scheme, I have decided to direct the responsible authority to amend the permit. My reasons follow.

[37]

Council submitted that earlier Tribunal guidance in relation to s 87A appeals leads to the conclusion that it would be inappropriate to amend the permit in this case, at least with respect to the additional building height.
I have concluded that, having assessed the facts cautiously in this case, it is appropriate for me to proceed to make a finding about the merits of the proposed amendment and, if appropriate, direct the permit be amended.
Council argued that the original consent order involved a concession by the permit applicant about the building's height, reducing this from the 32 storeys of the original application to the 25 storeys shown in the amended plans. Council argued that this application effectively seeks to reinstate key conditions of Council's consent relating to building height and setbacks and is therefore an inappropriate use of s 87A.
As to background this hearing, the first Tribunal decision about this matter[2], was based on an application for a consent order[3]. There was no mediation before the Tribunal and no hearing at which the Tribunal considered the proposal's merits[4].
The consent order did not involve any concessions by the permit applicant in relation to the building's height as indicated on the drawings that Council had considered.
Section 87A of the Planning & Environment Act 1987 provides a wide discretion to the Tribunal, stating that the Tribunal may amend a permit issued at its direction if the Tribunal considers that "it is appropriate to do so". The Act does not specify any relevant considerations. It now appears to be widely accepted that the scope of the Tribunal's consideration should be limited to the effect of the amendment as it would vary the approved development[5], rather than undertaking a review of the amended proposal de novo.
Several Tribunal decisions have explored the circumstances in which it would be "appropriate" to amend an existing permit pursuant to s 87A[6] and have identified two over-riding issues to guide its consideration in such matters: would the amendment maintain public confidence in the finality of the Tribunal's decisions, as a matter of broad public policy; is the amendment acceptable on its planning merits.
In Marone, the Tribunal adopted a series of questions which it used to explore these two issues.
In Bestway, the Tribunal also observed that the introduction Division 1A, especially s 72(3), into the Planning & Environment Act, 1987 (and, for similar reasons, s 87A) was

[48]

I have concluded that that aspect of the amended plans relating to height does not seek to win back a concession that Council made as part of its agreement to the consent order. In this respect, therefore, this amendment does not threaten the integrity of the Tribunal's original decision.
There were no objections pursuant to s 52 of the Act as the Central City Zone's provisions do not provide for a permit application for use or development to be advertised[9] and any objectors have no review rights. Consequently, there are no other parties to whom concessions have been made or who can hold Council to account for its position.
Council only considered a proposal for a 25-storey building, which it refused on various grounds relating in part to its overbearing relationship to the lane[10]. After Council's refusal, the permit applicant made no concessions about the proposal's height in order to obtain Council's support for the consent order, though it made some changes to the internal layout and agreed to some additional conditions.
I do not have a copy of the officer's report that recommended to Council that it eventually support the grant of a permit for a 25-storey building, though Council did provide me with a Council letter to Mr. Steve Blackie, Owners Corporation Committee, Regency Towers, 265 Exhibition Street (one of the parties that, presumably, had objected to the original permit application). The letter explained Council's intention to support the grant of a permit and set out, briefly, a number of reasons, all of which except one related to the internal changes; the one reference to building height simply stated "the building height will be maintained as 25 storeys".
In this respect, therefore, I differentiate this proposal to increase the scale of development permit from an attempt to undo or win back a concession that was offered in order to obtain the consent order. It is, in terms of Council's two decisions (to refuse and then consent to a 25-storey building) and the Tribunal's consent order, an entirely new issue.

[52]

I have concluded that the s 87A process has not constrained Council's or the Tribunal's ability to consider all aspects relevant to the question of whether the additional height is acceptable.
Concerns about the building's height can have two aspects: the appearance of its additional height in the broader context of the height of other buildings (the cityscape); the acceptability of the additional height in relation to its appearance in the immediate streetscape. The former issue was not one that concerned Council in its original refusal or its submissions in this hearing. Rather, Council's and Mr. Holdsworth's concerns were about the relationship between a taller building and the lane; that while a 25-storey building with no effective setbacks was acceptable, a taller building on this site with similar setbacks would only be acceptable if it had some form of tower above a podium. They took the view that the taller building without a podium would have an overbearing presence on the lane.
From the submissions, evidence, earlier officer reports and my inspections of the locality, I have concluded that the totality of issues relevant to determining the acceptability of the building's additional height are the different aspects of building form (height and setbacks) in relation to the laneway and other buildings along the laneway (including its continuation to the south as Jones Lane). These are all matters that have been argued in this hearing.
In its submissions, Council noted that its policies seek to have tall buildings conform to a typology based on a tower above a podium; policy seeking a 10-metre setback for the tower element. Council also conceded that it is not practical to have tall buildings comply with this typology on small sites, as in this case. The crux of Council's position was that it considered a 25-story building with minimal setbacks from Exploration Lane to be acceptable but that a higher building with none was not; a higher building would only be acceptable if it reflected a more pronounced podium/tower typology.
I do not accept that the ambit of Council's or the Tribunal's considerations has been in any way constrained by the existing approval. Council was not constrained only to address the additional height placed on top of the approved building, even though that was the proposal before the Tribunal. It was open to Council to argue that the additional height would only be acceptable in the context of some degree of podium/tower typology, a view that it clearly held and which Mr. Holdsworth's evidence sought to address. In effect, it was open to Council to address all issues relevant to deciding whether the additional 9 floor would be acceptable or that would be required to render them acceptable. As I see it, while Council is constrained from debating the entirety of the proposal, it is not constrained from debating any aspect that is related to any increase in height.
If I were to come to the conclusion that the additional 9 storeys would only be acceptable as part of a podium/tower typology and not if placed straight onto the approved building, I would refuse this application. I do not consider that I am constrained in reaching such a conclusion by the existing approval.
The question of whether the additional height is only acceptable if associated with the adoption of some degree of podium/tower typology is a matter that I can consider on its merits.

[54]

Council, supported by the evidence of Mr. Holdsworth, opposed the increased height in conjunction with building's lack of any podium/tower form, as well as because the tower would be too close to other tall buildings. I have concluded that the building's height and its relationship to other towers, at least in terms of urban design, are acceptable[13].
Council's strategies for the Central City area contain no references to preferred building heights in this area, other than that there should be "a strong distinction between the built form scale of the Central City with that of surrounding areas[14]". There are areas where high buildings are specifically discouraged or encourage (e.g. "low scale streetscapes in the Retail Core"[15] and "high rise, high density" in Southbank[16]). Other than for these areas, the Central City is identified as an area where "substantial built form change is envisaged"[17].
The Delegate's report concluded that the resultant building as amended "will have an overbearing impact upon the pedestrian" and if further development of a similar height and setback occurred "a canyon like effect could result".
Mr. Holdsworth's objections to the increased height (apart from various amenity effects, discussed later) were based on the absence of any justification for the additional height and its inappropriateness on a building that does not exhibit the podium/tower typology. In fact, Mr. Holdsworth initially stated that he did not support the approved building's inadequate setbacks from Exploration Lane as these also conflicted with good urban design principles, as set out in the Planning Scheme's Clause 22.01 (Urban design within the Capital City zone) and 22.20 (Laneways). Both these policies require higher tower forms to be set back 10 metres from the predominant or preferred parapet height and be well spaced.
Mr. Holdsworth strongly favoured, for its urban design benefits, a relationship between buildings and streets in higher-density areas where the dominant buildings created a space along the street with a ratio of about 1.3:1 (height to width). He pointed out that this is the ratio originally existing along such streets as Collins Street, because of the historic 40-metre high buildings[18] located along a 30-metre wide street. He considered that, in an ideal situation, this ratio should be generally supported by setting taller structures well back from a 40-metre high podium[19], though conceding that in streets such as Exploration Lane, with its 7.5-8.0 metre width, this ratio would result in podiums of about 3-storeys height and this is now largely impractical due to other approved buildings with no or higher podiums. However, having accepted this point, Mr. Holdsworth nevertheless opined that a 40-metre high podium would still be worth achieving in such lanes.
Mr. Holdsworth conceded, in cross-examination, that the extra 9 storeys "would not be readily perceived from Exploration Lane", though he later stated that setting the additional 9 floors back from the frontage would "ameliorate some of his concerns".
Mr. Hutson and Mr. Biacsi both concluded, on the basis of their site inspections and their review of Council's City model, that the additional height would only be effectively viewable from distant points and against a backdrop of other buildings of somewhat similar height - some lower and some as high or higher. Mr. Hutson in particular had carefully considered the site's context, the height of existing or approved buildings within this general context and the way that the amended development would be perceived within this context from close at hand and from different middle-distant viewing points. Neither were concerned about the lack of compliance with the 24-metre tower spacing that is sought be policy and Mr. Holdsworth did not raise this issue in his evidence.
Both Mr. Hutson and Mr. Biacsi considered that an observer within Exploration Lane would not have sufficient view of the additional upper levels to experience any additional effect from their presence.
I have given greater weight to the evidence of Messrs. Hutson and Biacsi who, particularly in the latter's case, provide a detailed description of his analytic methodology to support his conclusions. I have not felt able to place any great weight on Mr. Holdsworth's evidence, given his lack of explained analysis and his objection to the approved building's form. Mr. Holdsworth did not explain how he had objectively been able to separate his assessment of the proposed amendment's urban design faults from the urban design faults that he identified in the approved development.
Buildings along Exploration Lane and Jones Lane (Jones Lane being the continuation of Exploration Lane south of Lt Lonsdale Street) generally have no significant podiums, though their facades often provide a symbolic reflection of a podium/tower typology, with a podium set to the street and a tower effect created with very small setbacks, if any, and differing architectural treatments (relatively plain for the 'podium', more complex for the 'tower').
For example, the building opposite in Exploration Lane has a podium effect to a height of about 5 storeys, with the building above that set back above 2 metres at either end and one metre in the middle (i.e. a slightly bowed façade), but with balconies extending one metre into this setback across the full frontage to Exploration Lane, so that the "tower" effect is created largely by the different architectural theme of the balconies and the one-metre-effective balcony setbacks at either end. This is more a stylistic treatment that reflects, but is certainly not itself, a tower/podium type in terms of the structure above the podium providing significant visual relief. The same can be said of most of the other taller buildings along Exploration and Jones Lanes, at least with respect to their presentation to Exploration Lane. Another relevant example is the Charter Towers building, which abuts Jones Lane. Its height is over 30 storeys abutting the lane for its full height, with plainer architectural treatment to a 'podium' and a more articulated treatment, including balconies, above.
In terms of creating a canyon effect, I conclude that this already exists in significant parts of Exploration and Jones Lanes and would be reinforced by the approved development. I do not accept that the additional 9 storeys would make this canyon effect perceptually more pronounced.
Council has agreed to a 25-storey building with no setbacks. I do not accept that a further 9 storeys above that, with no additional setbacks, would make a sufficient, perceivable difference as to justify introducing a stronger podium effect than has been considered unnecessary for the 25 storeys[20].
I accept that once a building in such a narrow laneway significantly exceeds 10-15 storeys, nearby pedestrians would not be able to readily appreciation any additional building height. One has to be some considerable distance away before the additional height would become apparent and, from such viewpoints, one usually cannot view the whole of the building in its street context. From more distant viewpoints, the question of whether a tall structure is a tower above a podium or rises directly from the street is irrelevant; the building's lower levels are either concealed or too remote.
Considering the proposed higher building and its existing context, I conclude that there would be no benefit in seeking a more pronounced podium architecture or in requiring floors to be set back above some 'podium' level. Council has accepted setbacks for limited parts of some facades abutting Exploration and Jones Lanes of 1 metre at best, in some other cases not at all. Such setbacks or articulations are, in my view, useful in terms of greater architectural interest but irrelevant as to whether a building is overbearing or not. All of the taller buildings along Exploration and Jones Lanes are overbearing; their upper levels would have had to be set back substantially (in my judgement, 5 or more metres) to make any significant reduction in this effect.
I therefore conclude that the additional 9 floors without further setbacks, or without requiring further setbacks for lower floors, would be acceptable in relation to Exploration Lane and its existing development.

[56]

Council objected to the proposed changes to the internal layout of the dwellings because this would reduce their internal amenity to an unacceptable degree. Mr. Holdsworth found various faults in this aspect of the amended plans.
I have concluded that the changed dwelling layouts provide acceptable internal amenity.
In my following considerations, I have taken into account the fact that we have, to my understanding, no research-based knowledge of city apartment dwellers' preferences or how these vary from those of inner, mid or outer-suburban apartment dwellers'. Nevertheless, it seems clear to me that for most inner-city households, their preferred life-styles, housing costs, position in their housing life cycle and various tradeoffs between housing and other choices, will be very different to the others.
While the total number of dwellings and bedrooms on any floor remain the same (3 and 4 respectively) but they have been reconfigured so that, on each level:
- there is now to be only one dwelling across the eastern face of each floor (with east-facing windows to one living and one bedroom), rather than two dwellings with two separate living rooms
- a second bedroom is placed against the western perimeter of the building with a west-facing window that receives both light and ventilation from beyond the site's boundary
- one dwelling would only have, effectively, a southern outlook no balcony.
Mr. Holdsworth gave evidence that this amended layout of a number of dwellings would create unacceptably poor amenity:
- apartment 0.02 on each floor would have no balcony and would effectively receive no or minimal sunshine as it has an entirely southern outlook
- apartment 0.01 on each floor, an east-facing apartment, would face the apartments in the building opposite at 3 Exploration Lane, a distance of only 7.5-8 metres
- apartment 0.03 on each floor has a second bedroom in the building's north-western corner and this relies for light and ventilation on a window abutting the site's western boundary.
Both Messrs. Biacsi and Hutson considered the above changes, with their related reduction in sunlight, absence of some balconies and closeness to neighbouring dwellings, to be acceptable on a site in the central city and in an area designated for high-density development.
The Guidelines for Higher Density Residential Development[21] make no recommendation as to the provision or otherwise of balconies on high-rise buildings, though they do acknowledge

[60]

Council raised a number of objections to the effect of the proposed additional 9 storeys on public or private amenity outside the site: too close to No. 8-12 Exploration Lane in terms of overlooking nearby apartments, loss of development opportunities for the abutting land to the west (fronting Bennetts Lane), impact on the desirable amenity of Exploration Lane itself and increased shading of public spaces.
I have concluded that the additional floors would not cause unreasonable loss of the amenity in public places or to nearby dwellings or, subject to appropriate permit conditions, unreasonable loss of development opportunities.
Exploration Lane is a Class 3 lane[22]. Such lanes generally have a service and access function. Policy for Class 2 and 3 lanes is to encourage them to eventually meet the four criteria[23] for Class 1 lanes, to maintain their intimate environment by setting towers back from the predominant parapet height and to protect the lanes' microclimate.
My previous discussion has explained why I conclude that the additional floors, with no additional setback, would not threaten the existing character of the lane, as perceived by pedestrians within it. Council has already accepted the design features of the building's ground floor, which will not change. Views along the lane and the architectural quality of the building's lower levels will be altered in detail but not, in my opinion, in any significant way more generally
The additional shadow from the extra storeys appears to be confined to a brief period of additional shadow in Jones Lane and a small area of the open space associated with St James, on the southern side of Lt Lonsdale Street. In this site's physical and policy context, the latter of which encourages increased densities, I conclude that this additional, small amount of shadow is acceptable.
The abutting land to the west, being part of Nos. 4-10 Bennetts Lane, contains two 2-storey brick commercial buildings. The whole site (which may or may not consist of two titles, judging by the two separate buildings) has an area in excess of 400 square metres. Mr. Biasci held the view that the neighbouring site's larger size provided for a degree of flexibility in the layout of a new development than could be achieved on the subject site. From this, he concluded that the now-proposed windows on the western wall would not unreasonably prejudice development on the adjoining site. He also opined that, as the apartment building to the north has been subdivided, there is much less likelihood of its redevelopment and it could be an appropriate alternative to place the new bedroom windows on the northern boundary.
Regardless of the greater size of Nos. 4-10 Bennetts Lane, I conclude that it would be unacceptable to allow windows on the western (or northern) boundary of this site to potentially restrict the neighbouring sites' development opportunities. It should be feasible to provide for the affected rooms on this site to have alternative sources of light and ventilation in order to address the possibility that the western boundary might be built-up. The associated dwellings should therefore be designed so that there is no presumption that their design precludes abutting development. This matter can be addressed as part of the initial development.
I accept Mr. Hutson's opinion that in the longer term secondary light and ventilation would be acceptable for the secondary bedroom of one-third of the dwellings in a central-city apartment block such as this, where such light and ventilation could be provided across the kitchen/living area, as in this case.

At a glance

Court

Decision date

Source

Judgment (81 paragraphs)

Exploration Lane Developments Pty Ltd v Melbourne CC [2012] VCAT 152 (31 January 2012)

Parties

Legislation Cited (1)