FJM Property Pty Ltd v Melbourne CC [2013] VCAT 1833

FJM Property Pty Ltd v Melbourne CC [2013] VCAT 1833 | Case summary | Zoe

[52]

The permit applicant submitted that clause 22.04 (Heritage Places within the Capital City Zone) includes a markedly different approach from clause 22.05 that guides change to heritage places in suburbs surrounding the CBD. It is markedly more prescriptive than clause 22.04 with regard to setbacks, concealment, heights and design "freedom". In general, the policy gives greater design discretion in lower graded buildings and streetscapes. The design bar is set high for "A" and "B" graded buildings in level 1 and 2 streetscapes, and design responses need to be highly recessive and secondary.
It was suggested the more specific design direction that applies outside the Capital City Zone arises from a strategic objective to retain the prevailing one to three storey built form in areas surrounding the CBD. Within the CBD the prevailing built form is considerably greater. New built form is less obvious set against a backdrop of existing buildings rather than against sky and trees that are evident in areas such as Carlton, North Melbourne or South Yarra.
We agree with the permit applicant that clause 22.04 provides considerable design discretion within the Capital City Zone and it is less prescriptive regarding appropriate design responses than is found in clause 22.05 that relates to areas outside the Capital City Zone. We give weight to policy direction in our assessment of the design response of this particular proposal.
The relevant objective in clause 22.04 requires additions to enhance the heritage place and to be undertaken in accordance with "accepted conservation standards". The first policy under this objective requires proposals to be accompanied by a conservation analysis and management plan in accordance with the Burra Charter.
Mr Briggs argued that the above references refer to "unwritten" standards that he says are commonly applied in the design of additions to heritage places. He said that these unwritten standards include generous setbacks behind parapets, proportions which are less in volume than the heritage place and retain the air rights above the heritage place so as not to diminish their 3 dimensional form. These unwritten standards mean that "you don't build over the top of the front part of a heritage place". It was his assessment that this addition would be contrary to these accepted conservation standards, and it would usher in a new paradigm in the redevelopment of heritage places that would diminish their value and prominence in central Melbourne.
We are not persuaded by Mr Briggs' interpretation of the planning policy framework. We consider the reference in a planning policy objective to "accepted conservation standards" needs to be understood by reference to the planning policy that references the Burra Charter. That document provides general principles regarding the methodology to be applied in designing a redevelopment proposal. It also sets out the principles to be applied in assessing a development proposal.
In our view the Burra Charter places weight on preparing conservation management plans that identify the site's heritage significance, the design parameters and context, and the appropriate conservation works. It does not prescribe any particular design approach such as mandatory setbacks, heights, proportions, materials or form. We consider that the reference in policy to accepted conservation standards and the Burra Charter refer to a "code of practice" that has as its central premises undertaking research of the place, preparing a statement of significance, taking a cautious approach, respect for the heritage place, separating the new from the old and documenting conservation works.
We must apply the planning scheme as we find it. We are not persuaded that the planning scheme prescribes particular responses or design outcomes for heritage places within the Capital City Zone. We are satisfied that policy deliberately provides considerable design discretion. The onus is on the designer to demonstrate that the proposal is a considered, thoughtful and careful response to the particular built form context and the heritage significance of the particular heritage place.
However, we agree with Council that Clause 22.04 does not say "anything goes". It requires that proposed additions are based on careful and thorough research of the heritage place and a sensitive design that responds to the particular significance of the heritage place and its context.
Conservation management plans were prepared for the building in 2002 and 2012. Both regard the building as significant, but diverge in respect to the appropriate scale and form of possible additions. The 2002 CMP recommends that alterations and adaptions should be undertaken in accordance with accepted conservation standards, should have a low level of impact on the identified heritage place and be complementary to the character, scale, form and appearance of the heritage precinct.
It concluded that any rooftop extensions should not overly dominate or conflict with the building below. The 2002 CMP suggested a two to three level mansard style roof as an appropriate model for any rooftop additions. Rooftop extensions should not be dominant in streetscape views of the site[12].
The 2012 CMP encourages proposed new floors to complement the existing structure, not overpower it through the addition of too many floors, or interfere with the architectural presentation of the building[13]. New works should not build up the parapet through screens or balustrades.

[54]

The site is located on the southeast corner of Russell Street and Flinders Lane. The building is prominent in the street and is readily visible from all four directions, particularly from Russell Street.
The site is within an area of mixed form and height. An eight storey building, the Brooks, occupied by apartments, abuts the south. The original building is five floors and three floors above were added in the 1990s. Further south at the intersection of Russell Street and Flinders Street, a multi storey hotel wraps around the side and rear of the two storey historic Duke of Wellington Hotel.
To the east of the review site on the south side of Flinders Lane is Pawson House at No. 141-143 Flinders Lane, It is a seven storey building constructed in 1935. This is subject to a heritage overlay. Further east, across Oliver Lane, is the three storey former Bank of New South Wales building at No.137 Flinders Lane. A two storey bluestone building constructed in 1858 as a warehouse is at No. 129 Flinders Lane.
On the northeast corner of Russell Street and Flinders Lane is the former four storey Royal Bank of Australasia, also subject to a site specific heritage overlay. The Grand Hyatt Hotel is located to the north and east of this building.
The T&G Assurance building is located on the northwest corner of Russell Street and Flinders Lane, diagonally opposite the site. The southwest corner of the intersection is occupied by the 12 storey Cavendish House. The Forum Theatre is on the west side of Russell Street on the corner of Flinders Street. Some of these buildings are within a precinct heritage overlay.
In summary, the review site's context is mixed and comprises buildings from a variety of eras, with varying architectural styles and heritage value. There are buildings of similar and greater height. A number of the nearby buildings were designed by HW & FB Tompkins and are subject to individual heritage overlays. The site is not included in a heritage overlay that applies to a precinct. Several heritage buildings have additions to their roofs, generally two to three storeys. There are also a number of modern infill buildings.

[58]

As noted above, the City of Melbourne[15] describes the Metcalfe & Barnard warehouse as significant as an early American Romanesque Revival building that successfully combines bold arched forms and ornate cement detail, set in contrast to bold brickwork.
The primary question before us is whether the proposed addition will so distract the observer as to reduce the ability to appreciate the significance of the building as displayed by its form and fabric. Mr Briggs argued that adjacent infill development can so transform the setting of a heritage place that it damages its setting and "the capacity for visual appreciation of the place and its heritage significance".
We acknowledge the truth in this. It is demonstrated in many parts of the City. His opinion is that the proposed addition would have the same effect and it is important for the original heritage building to maintain its visual primacy. He considers that the applicant has failed to explain how heritage objectives would be served by the proposal.
Mr Briggs says that the "wonderfully exuberant and optimistic design" of the warehouse and its composition generates something much more than a simple massive masonry building. He contends that this building has buoyancy and movement, one which "lays claim to its air space". He fears that the proposed design would result in a prominent, contrasting form presenting as a bulky and overwhelming protrusion over the host building that would lessen its heritage significance. Mr Briggs thought the casual observer would see the additions and express an "oh my god" response, that the observer's eye would be drawn away from the original and thus diminish its significance.
Ms Brady and Mr Raworth agreed with Mr Briggs' description and enthusiasm for the Metcalfe & Barnard warehouse. They also agreed that the proposed addition would be visible from many viewpoints. It was their evidence however, that the massing and appearance of the additions is an acceptable heritage response.
Ms Brady's evidence is that the clear separation between the old and new elements of the building would be evident when viewed along both Russell Street and, where it could be seen at all, in Flinders Lane. Her view is that the height is acceptable as the area is characterised by variety. The review site is not in a designated heritage precinct, nor one where lower scale buildings contribute to a recognised pattern or character. She said additions above heritage buildings are no longer rare or incongruous in the CBD. However, she accepts that each proposal should rightly be considered on its merits.
Her evidence is that the proposed addition is acceptable in heritage terms. The significant original form and architectural detailing of the original would be maintained. The form and expression of the addition, which she described as "quiet and neutral", would not be so large or overwhelming that it would have an adverse impact on the historic and architectural significance of the original building.
Mr Raworth agrees with Ms Brady. He says that the lightweight appearance of the mesh screen proposed for the exterior of the addition would not compete with the heavy masonry character of the original building. He disagreed with Mr Briggs that the large box would overpower and dominate the existing building or prevent the observer from seeing the original building in its three dimensions.
Both Mr Raworth and Ms Brady thought that the additions would be of fleeting interest when compared to the robust decoration and gravitas of the original.
The experts also disagreed as to whether this addition forms part of a new paradigm in redeveloping heritage places. Mr Raworth claimed that the number of historic buildings that have been built-over in the CBD has created a new paradigm. Ms Brady also noted many examples where this was the case, but we think was not arguing for a new paradigm, merely noting a number of site specific responses. Mr Briggs thinks that an extension which aligns with the front of heritage places is a new approach that is neither established nor agreed in terms of its compliance with "established conservation principles" as required by the Burra Charter and planning policy.

[60]

The responsible authority submitted that we should give limited weight to the evidence from Mr Raworth and Ms Brady.
With regard to Mr Raworth, the responsible authority tabled copies of referral advice from Mr Raworth to Council over the previous decade regarding proposed additions. The comments were provided when he was the Council's heritage consultant. In that advice Mr Raworth generally did not support larger additions and commented that any additions should be recessive and set back behind the parapet. The responsible authority submitted this previous advice was contrary to his expert evidence.
Mr Raworth made clear in both his written evidence and evidence in chief that he did provide the advice described by Council. He then set out his reasons for his support for this proposal and his assessment within the framework of the planning scheme.
We accept Mr Raworth's evidence as his honestly held professional view about the merits of this particular proposal. We accept that an expert's view can change over time in the light of knowledge of other similar projects, the particular design and materiality of this proposal, and changes in policy and context. From the Tribunal's perspective the change has been declared rather than ignored or hidden and explained, and importantly, the proposal before us assessed on its merits.
With regard to Ms Brady, the responsible authority submitted that limited weight could be given to her evidence as her firm had prepared a heritage assessment that was submitted with the permit application. The responsible authority submitted that this long and early involvement diminished her independence.
As with the submission regarding Mr Raworth, we give this submission little weight. It is commonplace for the Tribunal to hear evidence from an expert who works with the firm that completed assessments in the early stages of the planning approval process. The important factors for the Tribunal are that the expert appearing in the merits review has not acted as an advocate and has completed an independent assessment based on "first principles" and sound, transparent methodology. We are satisfied that Ms Brady's assessment meets those criteria.

[61]

Mr McBride and Professor Goad presented evidence on the scale and massing of the proposed additions. Mr McBride described the Metcalfe & Barnard warehouse as skilfully elaborated. He observed that its most significant architectural elements are its giant vertical brick arches on both facades. These give the building extraordinary mass and weight by virtue of the relationship of their depth and height.
Mr McBride's evidence is that the most successful contributions to the public realm are made by buildings which have a consistent and clear relationship between the existing and new building mass. He says that the mass of the addition combined with its formal articulation is appropriate for such a prominent corner.
His opinion is that there is a clear separation between the old and new through the proportions, the difference of language and the modesty and lightness of the materials in the additions. He thought that the stainless steel mesh has the potential to provide a simple external skin which has a translucence that will change with atmospheric conditions and the viewer's position. At night, backlighting will enhance this effect. This variance will add a subtle interest, but not to an extent that it creates the experience feared by Mr Briggs. It will be perceived to be different from the original building, be interesting in its own right, but clearly subordinate to the old.
Mr McBride's conclusion is that the proposal's proportions, detailing and articulation would be of high architectural merit. The ensemble of the handsome neo-Romanesque warehouse and elegant contemporary companion will contribute to legibility and memorability at this prominent corner.
Professor Goad thinks the design is uncontroversial, as the aesthetic approach of complementary proportions and a clear separation through different architectural language creates an integrated yet separate new building. He says that this, together with the separation of the building parts and a new language which does not overpower or compete with the robust and decorative original, would create an addition that is "polite and silently respectful".
Council submits that this proposal is an inappropriate design response which dominates the heritage fabric of the existing building. It says achieving high quality architectural or even design excellence cannot compensate for a harmful impact upon a heritage asset. It urges us to ignore the evidence of Messrs McBride and Goad as they are not providing heritage analysis or opinion.
We however accept the evidence on design because it has a clear bearing on whether people in both streets would be likely to view the addition to the building as the dominant or secondary elements relative to the original building. It is for this reason that we have discussed it at some length.
In terms of urban design policy in the CCZ,[16] we are satisfied the addition clearly fulfils the requirements of the planning scheme. It aligns with the street pattern, respects the continuity of street facades, maintains the vertical rhythm of the streetscape and emphasises the street corner. Importantly, it has paid careful regard to the height, scale, rhythm and proportion of its adjoining heritage building.

[62]

We do not wish to enter into the precedent or new paradigm debate. The examples proffered were disparate in terms of the heritage significance of the host building and scale and design of the additions, and the context of the development. What they did was to explore the many ways in which architects, planners and heritage professionals have sought to conserve and adapt the city's historic building stock. However, we consider they have limited relevance to this particular development, except to indicate the approach has been used before and there are numerous examples of good and not so good additions. Even the approach advocated by Mr Briggs has produced outcomes that are in the not so good category. We conclude that there is no one size fits all solution and an acceptable outcome is very much dependent on the skill of the architect in collaboration with the heritage consultant.
We directed all parties in this review to focus on the impact that these proposed additions might have on the original building and its immediate context, guided by the planning scheme. We have carefully examined the drawings and the submissions and evidence before us. We have inspected the review site and its surrounds. We have also inspected many of the heritage places within the CBD that have additions and that were referred to by the experts. All of this material leads us to conclude that:
- The approach before us is legitimate.
- The mansard roof suggestion in the 2002 CMP was simply that - a suggested approach that is non-binding or prescriptive.
- The proposed height is compatible with the varied height found in the surrounding area.
- The clarity of form and clear separation of the addition from the host building means that it will not dominate and thus detract from the original building. Far smaller extensions to buildings can confuse due to the choice of massing and materials in a way that this one does not.
- The key to the success of the proposal lies in both the clear separation between the old and the new and from the proportional relationship with the original building.
The applicant explained to the Tribunal the fundamental importance of the proportional relationship between the volume of the addition and the existing building in achieving an acceptable design response. The proportions of the "body", ie that part between the ground floor cornice and the upper parapet, are repeated in the upper three floors of the addition. We accept that this clear relationship contributes to the harmony of the whole composition.
Mr Briggs submitted that the volume of the proposal would be excessive, that it would draw the eye and compete with the heritage place below. He submitted that a smaller addition may be appropriate and referred us to Charter House in Bank Place and 169 Flinders Lane as examples of less prominent additions above a heritage building. He noted that the 2002 CMP and Mr Raworth's advice to Council urged a recessive response in the order of two to three levels, set back behind the parapet.
Notwithstanding our overall support for this proposal, we find that a further reduction is required to preserve the primacy of the host building and to make the proportional relationship more explicit and the addition more self-effacing in its relationship to the host building. This is because the drawings are unclear as to precisely where the mesh face of the building would be located in relation to the existing parapet. We consider that it should be around a metre behind inner face of the existing parapet. Such a setback is required to "lessen the competition" between the overall size of the building components. If the proportional relationship of the "body" of the existing building is applied, the height of the building should also be reduced. We think that this is also important as it would diminish the prominence of the addition in both the close range views from Flinders Lane and from the more open viewpoints from north and south along Russell Street. The proposal as depicted in the photomontages appears to sit directly on top of the host building, despite the separation provided by the recession above the parapet.
The proposed addition comprises a glass box enclosed within a stainless steel mesh screen. Professor Goad describes the screen as a semi-transparent light natural metallic colour, a complete contrast to the host building. He says that the consistent treatment in a composition, which is complementary in scale to the original, would produce a building that is "harmonious and composed". Mr McBride observes that the fineness and simplicity of the proposed design requires skilful detailing to achieve the design outcome. He considers that the photographs tendered of the test mock-up demonstrate the subtle changes which would take place as atmospheric conditions and viewing positions vary.
Professor Goad and Mr McBride both thought that the detailing of the attachment of the mesh to the building requires further work. We note their reservations, but this has not guided our decision. We assess the proposal before us and are persuaded that it is acceptable from heritage and urban design viewpoints. In making that decision the Tribunal assumes that the permit would be complied with and further design development would take place. If in time another "skin" has to be used, it would have to be approved through an application to amend a permit. An alternate skin would be assessed on its particular merits.
The proposal before us demonstrates considerable care and thought, and we are satisfied that it would be an acceptable outcome. The strict geometry and self-effacing finishes give the building a severe modesty that responds and would be secondary to the exuberance of the host building. We are persuaded that the scale, massing, materials, bulk, form and appearance of the addition would not adversely affect the significance of the warehouse. We consider that with some increase in the setback and consequential reduction in the scale of the addition, the proposal has the potential to enhance both the building and this prominent corner in the CBD.

[64]

Heritage is the primary matter before us as Council's grounds of refusal relate entirely to those matters. However, planning permission is required for new buildings and works in the Capital City Zone. The decision guidelines of schedule 1 to clause 37.04 require the responsible authority and, on review, the Tribunal to consider a wide range of urban design matters. A number of these matters such as scale and massing, and response to its corner location have been addressed above with regard to heritage and design quality. Other matters to be addressed include:
- Impact on the public realm
- Access to and from the site.
- Internal amenity.
- Impact on the amenity of neighbours.
- Impact on the development opportunities for adjoining land.
Whilst the responsible authority had no objections with regard to the above matters, some of these matters such as the amenity of neighbours and the impacts on the public realm have been raised by objectors. We address these matters below.
With regard to effect on the public realm, the additions would increase the extent of shadow to the southwest corner of Flinders Lane and Russell Street until some time between 9.00am and 11.00am when the shadow from the existing Hyatt Hotel engulfs it. For the rest of the period between 9.00am and 3.00pm the additional shadow from the extension remains within the existing shadow.
We consider that the additional shadow in the early morning period would be acceptable as Flinders Lane continues to receive sunlight until affected by the Hyatt Hotel, and the additional shadow occurs only a short section of the west side of Russell Street directly opposite.
We accept that the proposal is not so tall that it is likely to cause significant wind tunnels or down draughts.
The proposal makes no changes to access arrangements and the legibility of the building's entry, and in our view complies with the outcomes sought by clause 22.01.
The additions would be used for an office, and amenity considerations relate to matters of heating, cooling and ventilation for office workers and their visitors. A sustainability report was submitted with the permit application. It does not address the impacts, if any, of the mesh screen on natural light or heating or cooling. We think it is likely to affect heating, cooling and access to daylight. We also think that the screen over all windows could restrict views out of the building and create a constrained internal amenity.
On balance however, we think that a somewhat reduced internal amenity and energy efficiency would be an acceptable trade-off to achieve an addition that is appropriately separate and subordinate to the old building and hence is acceptable in heritage and urban design terms. It may be that the internal amenity and efficiency of the addition now needs to be a focus, given that the external design is largely resolved. Our concerns are not sufficient to warrant refusing this proposal.
The development interfaces with neighbours to its east and south. The existing building is constructed to its boundaries. The adjoining buildings have windows in the interface walls above the existing building.
The additions have responded by setting back from the windows in the adjoining walls to the east. The windows to the south are to the additions above the roof and these are set back from the common boundary.
We think the setbacks to the east wall are reasonable to provide ventilation and daylight to the adjoining windows.
Several residents of the Cavendish building lodged objections with Council proposing that the amenity of their dwellings would be affected by construction noise and additional lighting to bedrooms. The Cavendish building is located on the southwest corner of Flinders Lane and Russell Street, separated by the width of Russell Street.
Clause 21.06 acknowledges that the CBD is a busy place and residents should not expect an amenity similar to residents of a suburban precinct. However, as far as possible, the amenity of residents within the CBD should be protected. New development should ensure all residents, existing and new, have access to daylight and an outlook and are protected from unreasonable overlooking.
We think that in the context of the scale and intensity of built form and illumination, this proposal would make little difference to the amenity of dwellings located on the opposite side of Russell Street. As the addition is to be used for offices, its night time illumination may be less than dwellings. Noise and disruption from construction can be managed through permit conditions.
We are satisfied that the proposal complies with the Capital City Zone and clause 22.01.

At a glance

Court

Decision date

Source

Judgment (73 paragraphs)

FJM Property Pty Ltd v Melbourne CC [2013] VCAT 1833 (23 October 2013)

Parties