[2005] VCAT 1611

The decision of the Responsible Authority in permit application No 5.2004/798 is set aside. A permit is granted and directed to be issued pursuant to Section 85(1) (b) of the Planning and Environment Act 1987 for the land at 109-133 Burwood Road, Hawthorn.

Use and development of offices, convenience restaurant, car parking, bicycle parking and altering/creating access to a Road Zone (Category 1) in accordance with the endorsed plans.

1 Before the use starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and three (3) copies provided, substantially in accordance with the plans substituted by the Tribunal (TP00D, TP01A, TP02C, TP03C, TP04D, TP05D, TP06D, TP07E, TP08F, TP09E,TP10C, TP11C, TP12C, TP13C, TP14C, TP15C, TP16C, TP17C, TP18C, TP19C, TP20C, TP21C, TP22A, TP23B, TP24B, TP25B and TP26A) but modified to show:

(a)

Lynch Street shown as 9.5m wide at the intersection of Power Street, with a 4 metre wide eastbound lane and two 2.75 metre wide west bound lanes, one turning right and the other left turning. All lanes to be clearly line marked over the entire Lynch Street frontage;

(b)

With the exception of the Lynch Street loading bay, the Lynch Street pedestrian pavement to the west of the site measuring a minimum 2.5 metre wide to enable tree planting within the Lynch Street road reserve;

(c)

The footpath to Power Street raised adjacent to the Power Street frontage to slope down towards the street and the pavement spoon drain in the Power Street road reserve removed with stormwater redirected to drain into the road Kerb and channel;

(d)

Details of how the basement garage of the development is to be drained;

(e)

Power lines connecting to the site located underground;

(f)

The indented loading bay in Lynch Street increased to 14 metres in length.

2 The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

3 Stormwater drains must be connected to a legal point of discharge approved by the Responsible Authority. Drainage connections within a road reserve must be to Council's standards. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.

4 Any new vehicle crossover or modification to an existing vehicle crossover must be constructed in accordance with Council's standard details. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.

5 Prior to the occupation of the permitted buildings, access for disabled persons must be provided to the site and buildings. All work carried out to provide such access must be constructed in accordance with the relevant Australian Standard for such access and mobility.

Driveways and Car Parking areas to be constructed

6 Before the use starts or any building is occupied, areas set aside for car parking, access lanes and driveways shown on the endorsed plans must be:

(a)

Constructed;

(b)

Formed to such levels and properly drained so that they can be used in accordance with the endorsed plans;

(c)

Surfaced with an all weather seal coat {or surfaced with compacted crushed rock or gravel};

(d)

Line marked to indicate each car space;

(e)

Clearly marked to show the direction of traffic along the access lanes and driveways;

7 External driveways must be constructed with dark coloured concrete to the satisfaction of the Responsible Authority.

8 The building is to achieve a 4 star rating energy rating under the Australian Building Greenhouse Rating system to the satisfaction of the Responsible Authority.

9 Prior to the completion of the development, the developer must remove all disused or redundant vehicle crossovers and re-instate kerb and channelling and the affected nature strip, to the satisfaction of the Responsible Authority.

10 Car spaces, access lanes and driveways shown on the endorsed plan must not be used for any other purpose, to the satisfaction of the Responsible Authority.

Road/pavement/drainage works in Power Street and Lynch Street

11 Prior to the commencement of buildings and works, a design and construction plan showing the road/pavement/drainage works within the Power Street and Lynch Street road reserves with appropriate engineering computations is required to be submitted to Council's Manager Works Investigations for approval. A checking fee of 0.75% of the estimated cost of the civil works is required to be forwarded to Council prior to the commencement of work. Any costs related to the construction or upgrading of the road, footpath, kerb and channel, nature strip, etc, are to be borne by the applicant. Such plans shall be to the satisfaction of the Responsible Authority and when endorsed shall form part of the permit.

12 The areas set aside for car parking shown on the endorsed plans must be made available for use free of charge to employees and visitors at all times and must not be used for any other purpose, to the satisfaction of the Responsible Authority.

13 Prior to the commencement of the use, details of any car park control equipment (controlling access to and egress from the basement car parks) must be submitted to, and approved in writing by the Responsible Authority. These details must include a car park control device which can be accessed by visitors to the development including clear instructions on how to operate any security system, to the satisfaction of the Responsible Authority.

14 Not more than 40 seats are permitted on the restaurant premises whether indoors or in outdoor areas on the site, to the satisfaction of the Responsible Authority.

15 Noise from the restaurant premises must not exceed limits prescribed under State Environment Protection Policy (Control of Music Noise from Public Premises) N-2, to the satisfaction of the Responsible Authority.

16 Noise from the premises must not exceed limits prescribed by the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1, to the satisfaction of the Responsible Authority.

17 Prior to the endorsement of the plans in Condition 1, a waste management plan must be submitted to the Responsible Authority for approval. Such plan must provide details of a regular garbage collection service to each of the uses on the subject land, including information regarding the type of refuse bins, type/size of trucks, means of accessing bins and frequency of refuse collection, to the satisfaction of the Responsible Authority. Once approved, such plan must be implemented to the satisfaction of the Responsible Authority.

18 All bins and receptacles used for the collection and storage of garbage, bottles and other wastes must be kept in a storage area to the satisfaction of the Responsible Authority. This storage area must be:

(a)

Properly paved and drained to a legal point of discharge;

(b)

Screened from view with a suitably designed enclosure;

(c)

Supplied with adequate hot and cold water; and

(d)

Maintained in a clean and tidy condition free from offensive odours;

to the satisfaction of the Responsible Authority.

19 Prior to the commencement of any site works whatsoever, the owner must submit a Construction Management Plan to the Responsible Authority for approval. No works are permitted to occur until the Plan has been approved in writing by the Responsible Authority. Once approved, the Construction Management Plan will be endorsed to form part of this permit and must be implemented to the satisfaction of the Responsible Authority. The Plan must be to the satisfaction of the Responsible Authority and must provide details of the following:

(a)

Hours for construction activity in accordance with any other condition of this permit;

(b)

Measures to control noise, dust, water and sediment laden runoff;

(c)

The location and design of a vehicle washdown bay for construction vehicles on the site;

(d)

The location of parking areas for construction and sub-contractors' vehicles on the site, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises and traffic flows. Any basement car park on the land must be made available for use by sub-constructors/tradespersons upon completion of such areas, without delay;

(e)

Measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan;

(f)

Contact details of key construction site staff;

(g)

The location of any site sheds and the like;

(h)

Details of hoarding and structures within Council's road reserve; and

(i)

Any other relevant matters.

20 All works including earthworks, demolition and construction activity associated with the approved development is to be limited to the following hours, unless with the prior written consent of the Responsible Authority:

21 No trucks or heavy construction vehicles associated with earthworks, demolition or construction works are permitted to use surrounding residential streets (Manningtree Road, Thomas Street, Layidge Street, Drill Street or Guest Street) for access to or from the site, to the satisfaction of the Responsible Authority.

22 Suitable washing facilities must be provided and utilised on the site for the cleaning of vehicles so as to prevent any grease, oil, mud or other material to fall or run off a vehicle leaving the site, to the satisfaction of the Responsible Authority.

Environmentally Sustainable Design and Construction

23 Prior to the issue of a Building Permit, the applicant must submit a Certificate (issued by an accredited energy rater) indicating that the development will achieve a minimum 4 star rating under the Australian Building Greenhouse Rating system.

Reticulated electricity to be provided underground

24 Reticulated electricity must be provided underground to the subject land and all buildings on the land, to the satisfaction of the Responsible Authority.

25 Without the further permission of the Responsible Authority, the restaurant (cafe) approved under this permit must operate only between the hours of:

Monday to Friday (except Public Holidays) 7:00 am to 11:00 pm

26 The exit from the loading bay to the Right of Way must only be used by commercial vehicles using the loading bay to the satisfaction of the Responsible Authority.

27 The applicant must demonstrate that the right turning storage lane on Power Street contains sufficient storage for vehicles turning right into Lynch Street without adversely affecting the operation of the Burwood Road/Power Street Intersection.

28 A convex mirror must be erected to assist vehicles exiting the subject property at Burwood Road, to the satisfaction of the Responsible Authority.

29 Prior to the commencement of works, a detailed functional layout must be submitted, outlining any ameliorative measures identified above to VicRoads and the Responsible Authority.

30 The eastern edge of the vehicular crossover must be angled at the road reserve boundary of Burwood Road to improve left turn only exit movements, to the satisfaction of the Responsible Authority and the Roads Corporation.

31 The developer must pay the full costs of all roadworks, drainage, road safety devices, service relocations, civil works, public lighting, traffic signals and any other associated costs ie. all works to be completed at no cost to VicRoads.

32 Prior to the commencement of works within the road reservation, a Road Use Permit must be obtained from the VicRoads Office at 12 Lakeside Drive, Burwood East 3151 (Telephone No 9881 8770)

(a)

The development and use does not start within three (3) years of the issue date of this Permit; or

(b)

The development is not completed within five (5) years of the issue date of this Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.

Mr Ian Pitt, SC of Best Hooper Solicitors. He called written and oral evidence from Mr Phillip Borelli, Town Planner of SJB Planning Pty Ltd; Mr Chris Butler, Traffic Engineer of Grogan Richards Pty Ltd; Mr Robert McGauran, Architect and Mr Len Hayball, Architect.

Mr Deiden, Planning Appeals Co-Ordinator. He called written and oral evidence from Mr Jim Holdsworth, Architect.

Ms Roz Wilson, Solicitor and Urban Planner appeared on behalf of Barnes Planning Pty Ltd, Eula Black, Tim & Helen Dowdell, Don & Marjorie Glasson, Henry & Janette Gordon-Clark, Michael & Stella Heaton, Katherine Henshall, Anita Hill, Ann Miller, Peter Neish, Peter & Lisa Selbie.

1 The proposal is to construct a 5 storey building over 5 levels of basement parking on a site of 3,490m2 located on the north eastern corner of Burwood Road and Power Street. The site is bounded by Lynch Street on its northern boundary and a right of way for part of its eastern boundary. The site currently contains a single storey industrial building that will be demolished to make way for the new building.

2 The building will contain 13,392m2 of office space and a small café/convenience restaurant accommodating 40 seats in the north western corner. Parking for 472 cars, parking for 24 bicycles and a loading bay for smaller, van sized delivery vehicles is provided within the 5 basement levels. The site has a fall of around 1.5 metres from south to north so that the top level of basement parking is largely at ground level on the north side and the building presents as 6 storey building along the Lynch Street frontage. The building has a minimum height to the top of the plant enclosure of 21.5 metres above the footpath in Burwood Road. The building abuts the footpath at ground, first and second floors and is setback at the upper levels. A colonnaded walkway for pedestrians is provided along the Power Street frontage.

3 The permit applicant sought to review Council's decision to refuse the application. Council's refusal was on 3 grounds concerning the excessive scale, bulk and height of the building being incompatible with the locality and contrary to office policy, the Business 2 Zone and the Planning Scheme, the proposal being an overdevelopment of the land, and adverse amenity impacts caused by a significant increase in traffic on the surrounding road network.

4 The site and land to the east and south is zoned Business 2. Land across Lynch Street to the north forms apart of the Belgrave/Lilydale railway line and is zoned Public Use 4. Beyond that is Grace Park zoned Public Park and Recreation and a small area of housing facing Power Street zoned Residential 1. Land on the western side of Power Street on both sides of Burwood Road forms part of the West Hawthorn activity centre and is zoned Business 1. A permit is required for the use of land for offices because the proposed floor area exceeds 2000m2 in area. A permit is also required for buildings and works, for car parking for the convenience restaurant, for variation in the employee/visitor split in bicycle parking (but not the total number of spaces) and for the creation/alteration of access to a Road Zone (Category 1). Other relevant Planning Scheme provisions include Clauses 11, 14, 15.05, 15.11, 15.12, 17.01, 17.02, 18.01, 18.02, 19.03, 21.05, 21.08, 21.08, 21.12, 22.03, 22.08, 52.06, 52.29, 52.34 and 65. Melbourne 2030 is also relevant - in particular Direction 1 (A more compact city) and Direction 5 (A great place to be).

5 Submissions, plans, photos and other documents submitted at the hearing have been retained on Tribunal files. The Tribunal inspected the site and locality during a recess in the middle of the second day of the hearing.

6 At the commencement of the hearing a request was made to join Mr John Santoro. There being no objection I agreed to join him. Also at the commencement of the hearing Mr Pitt asked that circulated amended plans be substituted. There being no objection I agreed to the substitution.

7 An oral decision was delivered on the morning following the hearing. This summary contains the basis of those oral reasons.

8 Mediation narrowed the issues to be decided to two:

•

The urban design form of the building particularly in respect to the provision of a fifth storey (4th level) and the setbacks provided at Levels 2, 3 & 4.

•

The traffic implications of the additional floor space created by reason of the building not being modified in accordance with Council's resolution of the 7th February as set out in its letter of 5th April 2005.

9 Mr Pitt pointed out that third parties do not have rights of review in terms of building and works and are confined to dealing with use in the Business 2 Zone (subject to certain criteria). Ms Wilson responded by saying that Clause 34.02-2 concerning use of land raised issues concerning the amenity of the neighbourhood such as the appearance of any building, works or materials and that she could make submissions in relation to the two matters set out in paragraph 9.

10 Ultimately this is of little real impact because Council and Ms Wilson were singing the same tune in relation to building and podium height and street setbacks at the upper levels and Mr Pitt correctly identified these as three key issues in this case.

11 For the record I note that there was no dispute that the site is in principle suitable for office development and I agree with this analysis. In dealing with the height and setbacks I need firstly to say something about the context and planning policy.

12 I spent the first 30 years of my life in Boroondara or in places just east of the municipality. I have travelled around and through Boroondara all my life and I feel there are parts of the municipality that I know better than my own backyard. In thinking about the arterial roads in Boroondara and the sort of development that has occurred along them, it is apparent that most of the commercial areas along these roads, many zoned Business 2, are narrow strips with direct abuttals to residential properties, or only separated by narrow laneways from the backyards of residential properties, many of heritage value. The site I recently considered in Church Street (P3500/2004) is just such an example where the zone boundary is along the paling fences of abutting residential properties.

13 This long strip of Business 2 zone along the north side of Burwood Road is, without exaggeration, unique within the municipality because it has no direct abuttals to residential areas and is buffered by the railway reserve to the north and Burwood Road and commercial development to the south. It also has extraordinarily good heavy rail access, with stations no more than about 10 minutes walk from any point in this linear strip. It also has excellent access to tram routes and shops/cafes and the like providing great convenience to workers, students and the growing population of residents.

14 The local policy framework singles out this strip as the Primary Mixed Activity Corridor on the Commercial Framework Plan and in Clause 21.08-3 requires implementation by:

•

Applying the Business 2 Zone to encourage appropriate office development in defined areas and precincts (particularly the Burwood/Camberwell Road Corridor, and on the fringes of existing shopping centres).

15 Policy in Clause 22, and in particular the office policy at Clause 22.08, provides more specific guidance as to what Council is seeking in terms of office development in the municipality. Submissions and evidence dealt at some length with this policy and in particular the policy that new office development generally not exceed four storeys. Apart from the fact that the word 'generally' means that buildings higher (or lower) can be considered, policy and individual parts of policy are not mandatory and, as required by Clause 11.01, responsible authorities (and the Tribunal on review):

will endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.

16 Other local policies seek to achieve a 100% self containment rate for employment in the City (whatever that might mean in terms of practical achievement) and to encourage office and other commercial development within the City.

17 Of any place in Boroondara, this strip of land along the north side of Burwood Road can accommodate quite intensive development and I have already spoken of the locational advantages. I suspect that the debate in 10 to 15 years will not be about 4, 5 or 6 storeys but about 14, 15 and 16 storeys along this strip.

18 So where does that leave this site and this proposal? There was no dispute about the architectural merit of the building and all three architectural experts spoke highly of the design. I too like the proportions, the mix of materials, the high level of articulation and the manner in which the south west corner has been accentuated by the distinctive design and materials which in my mind reflects the taller corner buildings of the past. The taller building on the south west corner of the Burwood/Glenferrie Roads intersection is an example of this taller corner form that I am referring to. Mr Hayball described it as a bookend and Ms Wilson as a gateway site.

19 There is nothing magic about seeking to limit buildings to four storeys and each proposal must be assessed having regard to its particular site context. For example, the Church Street site previously referred to could not sustain a building such as the one proposed here and could not even sustain the partly four/five storey building proposed on that site. But the review site is very different and I consider it can sustain a taller building of the height proposed here. In time other sites with lower buildings along this strip will be redeveloped and this building will sit amongst buildings of broadly similar scale. The fact that is one of the first at this end of the strip should not preclude it being built. Whether it is 2 or 5 metres taller than existing buildings is irrelevant to whether it is appropriate in its context. Having assessed this site from various vantage points including high points in Burwood Road to the east, high points in Power Street to the north and south, from Grace Park, and from points close to the site I am satisfied that it will sit within its context.

20 I now want to say something about visibility. There seems to be an obsession in some quarters that buildings be made invisible or as inconspicuous as possible. I disagree strongly with this view, particularly when a building is acknowledged as being distinguished and of great architectural merit. We live in an urban area, a large and exciting metropolis, where buildings and views of buildings are part and parcel of everyday living. It is exciting and uplifting to see good architecture and buildings which do not seek to replicate what has gone before.

21 In terms of the podium and whether it should extend for 2 or 3 storeys, I am not convinced by the argument that is should be lowered to 2 storeys, with the upper levels setback above the second storey. I can see no basis for selecting an 8 metre height as the upper limit for podiums or buildings sitting flush with the street frontage and disagree with Mr Holdsworth that 8 metres is a reasonable height for a podium along Burwood Road. As I noted, and as was demonstrated by Mr Hayball at the hearing, existing two storey Victorian shop buildings rise vertically for well beyond 8 metres. Other newer buildings to the east in Burwood Road nearer Glenferrie Road also rise well beyond 8 metres at the street boundary. In terms of this particular building, I consider that the proportions of the building are such that lowering the podium would upset the outstanding design for no demonstrable benefit. I do not find it overly dominating of Burwood Road in either a functional or visual sense and therefore will not require that the podium be lowered.

22 I now briefly turn to upper level setbacks. As with the other matters requested to be changed by Council, I have been persuaded that there is no justification on policy and design reasons to alter these setbacks. Burwood Road is already bounded on both sides (save for vacant sites) by industrial style buildings. Except for those sites containing single storey buildings, the impression is one of driving or walking along a corridor of buildings pressing in close to the road. It is not a green and open boulevard like St Kilda Road or Royal Parade. When viewed from the hill near Swinburne, Burwood Road towards Power Street presents as a corridor leading the eye to the tall city skyline in the background. Increasing upper level setbacks would not in any way affect this view, or make any noticeable difference as one nears the site.

23 I indicated at the hearing that I was satisfied with the number of cars spaces and that there would not be unreasonable impacts on the traffic network. Mr Deiden estimated that reducing the size of the building as required by Council would reduce the need for 114 car spaces and that this would result in less adverse impacts on the surrounding road network and in particular on the operation of the Burwood Road/Power Street intersection. Mr Butler demonstrated to my satisfaction that there would be negligible improvements to traffic conditions if there were 114 fewer car spaces on this site.

24 Having regard to the above, I will order that the decision of the Responsible Authority be set aside and that a permit issue with conditions.