Buildings and works must be constructed in accordance with any requirements in a schedule to this overlay. A schedule may include requirements relating to ... [b]uilding height.

A permit may be granted to construct a building or construct or carry out works which are not in accordance with any requirement in a schedule to this overlay, unless the schedule specifies otherwise.

1. DDO2 provides for height controls in the CCZ. In clause 2.0, the 'requirements' include -

With the exception of architectural features and building services, buildings and works must not be constructed to exceed the maximum height set out in Table 1 to this schedule. A permit cannot be granted to vary this requirement.

The height of a building or works is the height of its highest point above the permanent footpath at the centre of the site frontage. If there is no footpath, the natural surface level of the centre of the site frontage is the base level.

1. Table 1 provides that in area HC-1 (which applies to the subject land), the maximum building height is '40 metres'.
2. The existing building is much higher than 40 m, measured from the footpath at the centre of the frontage.
3. If the subject land was vacant and if it were proposed to construct a building of identical height to the existing building, such construction would be clearly prohibited.
4. Building includes part of a building.[2]
5. The first issue, readily disposed of, is whether the construction of a new level 18 containing plant and a lift motor room, is prohibited. I find that this new level, although having a floor area that is only a small proportion of a typical floorplate, is construction of part of a building that would increase the height of the building. However, it is 'building services' and is therefore exempt from the prohibition. A permit is still required to construct this new level.
6. The second issue concerns the construction of dwellings in existing level 16. This level is currently occupied wholly by building services. The building services room at this level slightly exceeds in height the tower parapet at this level and rises to about RL 69.4, well above the 40 m maximum height. Does the construction of these dwellings fall within the prohibition?
7. I have decided it does not fall within the prohibition having regard to the purpose of DDO2, the drafting of clause 2.0, and by policy considerations.

1. In interpreting DDO2, the purpose underlying the provision must be promoted.[3] The purpose is reflected in the design objectives, none of which refers to prohibiting existing buildings that exceed the height limit from being modified in any way.
2. The purpose of DDO2 clause 2.0 is to ensure new buildings are not constructed to exceed 40 m in HC-1. As a matter of logic, other purposes are
   • To prohibit additions to an existing building in HC-1 (if that building does not exceed the maximum height limit) that would result in the height limit being exceeded.
   • To prohibit additions to an existing building in HC-1 (if that building exceeds the maximum height limit) that would result in the height limit being further exceeded.
3. According to purpose, I do not discern an intention to prohibit additions or alterations to an existing building in HC-1 (if the building exceeds the maximum height limit) that do not result in the maximum height limit being further exceeded.
4. This is consistent with the view expressed by the Tribunal on a similar but not identical DDO provision that a permit could not be granted to extend a building if the building becomes a building that breaches the relevant DDO control.[4]
5. This approach is confirmed by the drafting of DDO2.

1. Clause 2.0 provides that the prohibition only applies to buildings and works which are proposed to be 'constructed to exceed' 40 m (emphasis added). It does not apply to all buildings or parts of buildings over 40 m, but just against buildings or parts of buildings proposed to exceed 40 m.
2. The language in the provision makes it clear that it does not apply to construction of a building or part of a building which exceeds 40 m or, in other words, if the exceedence has already occurred.
3. Applying this meaning to the proposed addition, I first need to determine what is the current maximum height of the building. There are two approaches. First, the current actual maximum height is, as stated above, about 72 m (to the top of the level 17 building services room). Second, the current maximum height excluding exempt building services is about 65 m (to the top of level 15).
4. For a building constructed before DDO2 and which exceeds 40 m, as in this case, the preferred approach is to apply the actual maximum height. That is consistent with purpose and clause 2.0 overall in its application to existing buildings.
5. The relevant question then becomes whether constructing part of a building, being the dwellings on level 16, results in the actual building height exceeding 72 m. The proposed works on level 16 changes the layout within the existing built form and the top of those works is below about 69 m. The actual building height is not exceeded and those works are therefore not prohibited.

1. DDO2 is not specifically drafted for all alterations and additions to existing buildings above 40 m, and consideration could be given to amending DDO2 to provide greater clarity. However, I am fortified in my conclusion by policy considerations. The approach I prefer is better imbued with commonsense.
2. The approach does ensure that, if building services occupy the top levels of a building that exceeds 40 m, conversion of those levels to leasable floor space would not be prohibited. Prohibition makes little sense if technological changes allow building services to be provided in a more compact form towards the top of buildings, and sensible and economic and pleasant spaces (eg rooftop gardens) cannot be established having regard to the prohibition.
3. The approach I prefer does not mean that conversion of such space is permitted. All it means is that a permit may be considered and granted for such works. If it fails to produce an acceptable planning outcome, a permit should be refused.
4. The approach I prefer would not prohibit the works included in the permit application because the two dwellings on levels 16 and 17 would also be below the current maximum height of about 72 m. However, a permit would still be required for those works and the greater lateral extension of level 17 and its visibility above the current building parapet may not have been an acceptable planning outcome and resulted in the grant of a permit.

1. The Applicant also submitted, in support of the approach I have adopted, that clause 62.02-2 would have authorised the works without a permit if office or retail space, and not dwellings, were proposed for level 16. This submission would require me to find that the works are an 'internal rearrangement' of a building. On the evidence, I could not make that finding because a part of the level 16 building services are not internal but are open cooling towers.

1. The rooftop addition, generally in accordance with a modified plan tendered at the hearing, is not prohibited.

1. The Council submitted that, if I were to reach the above conclusion, it would not oppose the deletion of condition 1(a). Having regard to the relevant planning considerations, including policy, and to the fact that the rooftop addition is behind and below the existing building parapet, it is a satisfactory planning outcome to allow the rooftop addition. I will therefore vary the condition so that it authorises the rooftop addition generally in accordance with the modified plan.

1. The reasoning I have adopted means that it would not be prohibited to convert a rooftop level of building services on an existing building in DDO2 HC-1 that exceeds the maximum height (such as level 17 of Riverview House) to leasable floor area and build new plant above that level. By this means, the overall height of a building might be increased. However, this action would require a permit.

The electronic major promotion sign - condition 1(b)

1. The electronic major promotion sign wraps around the podium to both streets at levels 1 and 2 (immediately above the existing canopy) for a distance of about 10 m to each street. It is flushed mounted.[5]
2. The sign structure is about 7 m high. At its base is a 1 m high LED scrolling text panel which extend the full width on both frontages. Above that is a banded clear glazing panel about 1 m high on both frontages. Above that high resolution digital signage panel about 3 m high and about 7.5 m wide on both frontages. Finally, above that is more banded clear glazing panels about 2 m high. About 2 m wide clear glazing panels also frame the side of the digital signage panels.
3. The total area of the sign structure is 140 sq m. The total area of the digital signage panel is about 43 sq m. The total area of the scrolling text panel is about 20 sq m.
4. The digital signage panel will feature advertisement and promotion material with an image cycle of five second intervals. The LED scrolling text panel will be on a continuous loop.
5. The nearest major electronic promotion sign is the sign on the roof of Young & Jacksons Hotel on the corner of Flinders Street and Swanston Street that faces into both streets (the Y&J sign). It does not have a scrolling text panel. The digital signage panel is about the same height but is longer in total and (based on the evidence of Mr Pryor) its area is about twice as large, at about 89 sq m.[6] It is located higher above the footpath (being on the roof of the three-storey building) but is not positioned above a footpath canopy.
6. The parties agreed that VicRoads was not a referral authority for the application. Informal comment was not sought from VicRoads. VicRoads did not seek to be joined in the proceeding.

1. The key issues for determination of the challenge to condition 1(b) is whether the sign is a satisfactory outcome having regard to its impact on urban design, on the heritage precinct, and on pedestrian and traffic safety.

1. Local policy 'discourages' promotion signs, in a general sense. As the Tribunal has observed on several occasions, this policy does not amount to a prohibition on such signs.
2. The key urban designs issues are:
   • Whether the sign complements or enhances the character of the area.
   • The effect of the sign on the host building.
   • The effect of the sign on view-lines.
3. The sign is located at a key city intersection, which carries a high volume of pedestrian and vehicular traffic. It is an important, busy and bustling gateway to and from the city. There are supermarkets, fast food stores, hotels and adult book stores that are open late at night.
4. Mr Pryor's evidence was that the signs would be incompatible with the 'safe, calm and attractive place which needs to evolve at the south end of Elizabeth Street'. The need for this area to become 'calm' is not an objective expressly recognised by the scheme. It may at some time in the future, but for the moment, I can give little weight to that opinion.
5. The experts disagreed about whether the signs would result in visual clutter. There are numerous below canopy signs in and near the subject land. There are no signs above canopy level on the subject land (other than temporary leasing signs). Having inspected existing signs in the surrounding area, I do not find the sign would result in visual clutter.
6. The sign has no unreasonable effect on the host building. The clear glazing panels are carefully located to ensure there is reasonable daylight penetration of the floor area behind the sign structure. There is reduced but reasonable remaining surveillance of the street from that floor area.
7. Decision guidelines for the permit application require consideration of the effect of the sign on the appearance of a 'significant view corridor'.[7] A locational principle is that a major promotion sign is discouraged 'if it will 'obstruct significant view lines'.[8] The scheme expressly identifies the views to the Flinders Street Station Clock Tower (the clock tower) along Elizabeth Street.
8. I accept that the sign is large. Both components of the sign are major signs in their own right as they exceed 18 sq m. They are animated and internally illuminated. The latter will enhance its prominence in the evening. It is located relatively close to street level. However, it does not face into the north south viewline along Elizabeth Street to the Flinders Street Station (the station). It faces west into the end of the viewline at the intersection.
9. Accordingly, the sign is unlikely to obstruct any part of the viewline. On my inspection, this was confirmed. The clock tower is not visually obstructed by the sign. Taller buildings at Southbank projecting above and to the side of the clock tower are a greater obstacle to a clear view of the clock tower outline than the sign.
10. Pedestrians moving south on the east or west side footpaths will largely not see the sign due to canopy obstruction.[9] The sign comes into view for southbound pedestrians on the west side at about Flinders Lane, but the view of the sign is an oblique one and there is no net loss of view of the clock tower.
11. In conclusion, urban design grounds are not a proper basis to retain condition 1(c).

1. Part of the subject land, being the area about 20 m north from Flinders Street, is within the Flinders Gate Precinct (HO505) (the precinct). The precinct extends along Flinders Street between Russell Street and east of Queen Street. The statement of significance for the precinct refers to the historical gateway function, and the major nineteenth and early twentieth century buildings including the station, St Paul's Cathedral and Princes Bridge.
2. The precinct does not include the station which is opposite part of the precinct and which is within HO649.
3. Decision guidelines for the permit application require consideration of the effect of the sign on 'heritage places' and whether the sign will adversely affect the 'significance, character or appearance of the heritage place'.[10] It is policy that development complements the 'character, scale, form and appearance' of the heritage place. A locational principle is that a major promotion sign is discouraged if it will 'form a dominant visual element ... within a heritage place'.[11]
4. While there may be argument about whether a particular sign is a dominant element or rather a prominent element, I agree with the observation of Member Bennett that the more useful question is whether the heritage assets that the overlay seeks to protect will be threatened or damaged by the sign.[12]
5. The host building has no heritage significance. I do not consider the sign 'subsumes' the host building, given the sign occupies a relatively small part of its podium and it does not affect the tower above or the new tower.
6. The sign will not have any physical impact on any heritage fabric. As it lies flush on the façade, it does not obscure the view to or the legability of any heritage fabric.
7. The sign is physically separated from adjacent heritage assets being the station (about 30 m to the south), Hosie's Hotel and the four-storey Richard Beck Mural on its east facing wall (the mural) (about 30 m to the west), and the ANA Building (about 50 m to the north).
8. After having carefully inspected the precinct during day and night and its likely impact on the precinct and the station, I am unable to agree with Mr Briggs that the sign will 'overwhelm and dominate' the precinct. I accept that the sign will be visually arresting from some confined vantage points close the subject land. However, it does not damage the precinct as a whole.
9. The impact on the station and on the mural are particularly important. The scale and height of the station means that it will continue to visually dominate the precinct and its environs. At night, the dominance increases as its north facade is wholly floodlit. There will be some light spill onto the station's floodlit façade at night. I carefully observed this effect while viewing the station with my back to the Y&J sign. It is possible to observe the nature of the floodlighting changes as the images and their different colours spill and affect the façade around the main entrance. However, that effect is relatively subdued and subordinate to the floodlighting of the whole façade. As the south-facing part of the proposed sign is much smaller than the south-facing part of the Y&J sign, the subordinate effect will be further diminished.
10. The impact on the mural will also be relatively minor. One's appreciation of the mural from the main vantage point on the east side of Elizabeth Street is not affected. There may be some distraction from an appreciation of the sign from the south side of Flinders Street opposite the subject land (eg as passengers exit the station) but the sign does not obstruct the view and the mural is at least 30 m away. I have also considered the effect at night, and the likely subdued light spill of different colours onto the mural will not unreasonably affect the appreciation of the mural. At night, the appreciation of the mural from the south side of Flinders Street is obstructed by existing street lighting and tram terminus lighting.
11. I have also considered the impact on the heritage place being the streetscape on the north side of Flinders Street, and have walked along both sides of Flinders Street both east and west of the subject land. As the sign is flush mounted, one's appreciation of the sign in the streetscape is obtained from limited vantage points. These are points on the south side of Flinders Street, adjoining the station, for less than 100 m in either direction and represent a small part of the streetscape.
12. The Y&J sign has a greater impact on the streetscape, but can be distinguished from the sign because the Y&J sign has a greater area, is in a more open setting,[13] and the absence of a canopy increases impact from the north side of the street. On the other side of the ledger, the sign is closer to the footpath, its image is to change more frequently (at every five seconds), and also includes a scrolling text sign. As the sign is above the canopy, and as I intend to neither support the faster image change cycle nor the scrolling text sign, the overall impact of the sign will be significantly less than the Y&J sign.
13. In conclusion, the sign will command attention, especially at night, from points in close proximity to the subject land and, to a somewhat greater extent, from the western approach. However, I find that the sign will not have an unreasonable impact on the station or the mural and will not damage the precinct or adversely affect its character.

1. The scheme requires consideration of the impact of the sign on road safety. It also requires consideration of the impact of any glare and illumination on safety of pedestrians and vehicles.
2. The intersection is a high pedestrian area, with a wide crossing area made available to pedestrians in and out of the station. Vehicle movements are restricted at the intersection.[14] There is constant congestion during weekday daytime hours and vehicles move slowly.[15] Nonetheless, there have been relatively high numbers of pedestrian accidents.
3. There was broad agreement between Mr Harris, Mr McGurn and Mr Walsh,[16] that the main concern was the scrolling text sign. Mr Harris referred to research that showed that scrolling text slows driver reactions and is a 'fairly high' safety risk. All favoured removal or relocation of this sign.
4. In my view, the red LED scrolling text sign is not an acceptable safety risk. It will be a particular distraction to eastbound drivers on Flinders Street parked or moving slowly at Elizabeth Street. Higher driver concentration is required due to high pedestrian volumes crossing at Elizabeth Street, many rushing to catch trains in the afternoon and evening. It will also present a confusing background to the signal lanterns, having red scrolling text. It will also be a distraction to pedestrians, where particular concentration is required to start and finish any crossing. All these risks will be greater in the evening.
5. Mr Harris also favoured raising the digital signage panel about 2 m so that it was fixed closer to the top of the building's podium, on the grounds that there was poor visibility to the signal lanterns when travelling eastbound along Flinders Street. I am not persuaded this is an unacceptable risk and am not persuaded that raising the digital signage panel about 2 m will significantly reduce the risk.
6. Permit conditions, requiring compliance with VicRoads veiling luminance design guidelines, can reduce the distraction risk. I will also include conditions requiring the minimum image cycle to be increased from five to eight seconds so that potential distraction is reduced.
7. In conclusion, I will amend condition 1(b) so that the scrolling text sign is deleted and add conditions relating to the digital signage panel.

1. In accordance with these reasons, the decision of the responsible authority will be varied.

[1] I present my reasoning on this issue in some detail because to my knowledge the Tribunal has not yet considered this issue.

[2] Planning and Environment Act 1987 s 3; the scheme cl 71.

[3] Interpretation of Legislation Act 1984 s 35(a); Poci Brothers Pty Ltd v Bayside CC [2003] VCAT 1884 at [14].

[4] Cope v Hobsons Bay CC [2004] VCAT 2487 at [27].

[5] The plans show a projection of no more than 600 mm but this is not a significant projection having regard to the width of Flinders Street and Elizabeth Street and to the presence of the full width canopy immediately below.

[6] The size of the Y&J sign is not entirely clear. Mr Lovell's opinion was that its area was 97 sq m.

[9] There is no obstruction for pedestrians crossing Elizabeth Street east-west on Collins Street or Bourke Street because sight is focused east or west for safety reasons. There will be no obstruction for tram passengers and car drivers and passengers because of the way the sign is mounted and because of the obstruction of the vehicle.

[12] Property Funds Australia Ltd v Melbourne CC [2008] VCAT 78.

[13] It is at a full intersection and there is open space behind buildings lines on other corners of the intersection ie at the Cathedral, Fed Square and the station.

[14] Eastbound traffic along Flinders Street may turn left into Elizabeth Street. Westbound traffic along Flinders Street must not turn right into Elizabeth Street. Southbound traffic on Elizabeth may only turn left into Flinders Street.

[15] Although Mr Harris stated the 85th percentile for off-peak operating speed is 45 kmh, which is a speed that is likely to cause fatalities for pedestrians.

[16] Mr Walsh is a traffic engineer with Cardno Grogan Richards and his report was attached to the written report of Mr McGurn. Mr Walsh was not called to give evidence.