FJM Property Pty Ltd v Melbourne CC [2014] VCAT 108

FJM Property Pty Ltd v Melbourne CC [2014] VCAT 108 - VCAT 2014 case summary — Zoe

[4]

The Applicant was offered the opportunity to lodge amended plans. Council was invited to respond and to prepare amended draft conditions in response to the amended plans. Both parties responded, the Applicant with amended plans to which Council gave further consideration.
The amended plans compromise plans TP000(B), TP102(A), TP103(A), TP105(B), TP106(B), TP107(B), TP108(B), TP109(B), TP110(B), TP111(B) and TP112(B). In summary, they proposed the following changes:
- on levels 3 and 4, an increase in the setback of the glazing from the rear of the brick parapet from 1500 to 1950mm;
- on levels 5 and 6, a setback to the mesh façade of 800mm from the back of the brick parapet, and that of the glazing behind it to 1500mm; and
- a reduction in the height of the mesh screen by 1600mm and a reconfiguration of the mezzanine/plant level such that it now projects above the top of the mesh façade, set back 3785mm from the rear of the north parapet and between 3785 and 4300mm from the rear of the west parapet. Materials comprise glazing to the mezzanine office area and metal cladding to the stair/plant area.
This final hearing heard submissions about the merits of the revised proposal. The responsible authority submitted that although the amended plans were an improvement on those originally presented, the following issues remained unresolved:
- the proposed setbacks are insufficient to be clearly perceived from Flinders Lane and thus the primacy of the host building and separation between new and old is not affirmed. The setback to Flinders Lane should be increased from 800mm to 1.2 metres;
- the proportional relationship between the host building and the proposed additions above is not clear;
- whilst not altering the vertical dimension of the mesh screen, it should be raised by 850mm. This would reinforce the separation between the bottom of the screen and the top of the parapet and compensate for the apparent reduction resulting from the increased setback; and
- the longitudinal dimension of the screen facing Russell Street should be reduced by increasing the setback from the south boundary to 1200mm.
The responsible authority argued that we should take a cautious approach, in compliance with the Burra Charter. It is up to the architect to demonstrate that the proposal is a "considered, thoughtful and careful response" to its built form heritage context. Mr Briggs said that when viewed from Flinders Lane, the steep angle of view makes it difficult to distinguish old from new. A cautious approach would suggest that a deeper setback is required to create a perception of separation between the old and the new.
On the Russell Street elevation, Mr Briggs accepted that the reduced height of the mesh façade is a notable improvement as it increases the likelihood that the new box would be perceived as secondary to the existing building.
Mr McBride supported the proposed changes, reiterating his opinion that[2]:
- I would consider it essential that the Architects continue through all the continuing stages of the project in the conventional manner to ensure the quality of result required by this proposal.
- A further final mock-up should also be considered as a mechanism by which the relevant authority could ensure the quality of the detailing in the project. This is accepted practice in significant government projects and would not be an unreasonable proposition on such a prominent and significant heritage site. The City of Melbourne Urban Design department would have the expertise to assess this mock-up.
We have carefully considered Mr McBride's recommended changes and we respond to these below. With regard to a further mock up, we consider that this proposal has been the subject of extensive expert evidence, submissions, cross examination and site inspections. We are satisfied that it is acceptable. We think that we have settled most of the key design issues. We are now dealing with very fine detail. We appreciate that it is important to get the fine detail right, but we are not persuaded that a further mock up is necessary to achieve this. We think that the experts available to both the Council and the Applicant are sufficiently skilled to utilise the usual plans, schematics and material boards that can be produced to resolve the remaining fine grain considerations that are important but not determinative in this case.
At the hearing, the Applicant submitted some further plans (Revision D) which sought to respond to Council's concerns by:
- increasing the height of the mesh screen to match the dimension between the cornice and entablature on the host building and a reconfiguration of level 6 and the roof; and
- increasing the gap between the top of the parapet and the screen by 210mm to 2410mm.
Mr McBride suggested at the hearing that the amended plans should be further modified by increasing the height of the mesh screen by 1100mm to mask the Revision 'D' roof form. This was acceptable to the Applicant.
The matters in dispute are of fine detail. They are probably imperceptible to the lay observer walking along the two adjoining streets. We consider, however, that in this case the fine detail is important, as the building is significant in the streetscape and as a heritage place. None of the participants in this review would be satisfied with an outcome whereby the original fabric was diminished by additions that could and should have been better.
In light of the submissions, we think the key issues before us are whether the applicant has satisfactorily addressed the matters outlined in the interim decision; namely:
- Is the setback of the mesh screen from the parapet such that it can be clearly perceived from both streets?
- Is there a clear horizontal separation between new and old?
- Has a proportional relationship between the two volumes been maintained?
We must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered the submissions, we have decided to set aside the decision of the responsible authority and grant a permit subject to conditions. Our reasons follow.

[5]

Mr Briggs says that an 800mm setback from the back of the parapet would be acceptable when viewed from Russell Street, but is adamant that it should be 1200mm along Flinders Lane. He thought a slightly larger separation along Flinders Lane is necessary to enable the separation to be read, given the narrowness of the street and the generally oblique views of the review site. This is strongly opposed by the applicant who says that, at a minimum, the proposed 800mm setback would create a clear shadow line would be apparent between the new and the old, and this would be appropriate in Flinders Lane.
We observe there are only limited views of the Flinders Lane façade. The view of the building from the east along Flinders Lane is largely obscured by the outline of the adjoining building at No.141-143 Flinders Lane. From the west along Flinders Lane the view of the building is restricted, due to the street trees.
The Russell Street façade is more than twice the length of Flinders Lane and it is the dominant façade. Passersby are more likely to observe the two elevations together particularly when travelling east along Flinders Lane or north or south along Russell Street. We consider that the critical viewpoints are along Russell Street as these enable the building as a whole to be appreciated. We are more concerned to get the views along Russell Street correct. We think that the views along Flinders Lane are less visible or important.
We think that it is important that the setbacks to both facades are symmetrical to reinforce a consistent and integrated separation of the old from the new. We are satisfied that an 800mm setback to both facades is sufficient to achieve a perceived separation. It may not be the optimum one, but we find it acceptable as it will make the separation clear in the primary view from Russell Street and at the street corner. We also think that distinct differences in the materiality of the old and the new will provide strong differentiation that will distinguish the screen from the host building.

[20]

Prior to the commencement of the development, an Environmentally Sustainable Design (ESD) Statement shall be prepared by a suitably qualified professional and submitted to the satisfaction of the Responsible Authority. The ESD Statement must be generally in accordance with the plan prepared by GIW Environmental Solutions Pty Ltd dated 27 July 2012, and must demonstrate that the building has the preliminary design potential to achieve the following:
1. compliance with the energy efficiency requirements of the Sustainable Design Scorecard or equivalent; and
2. 3 points for Wat-1 credit under a current version of the Green Building Council of Australia's Green Star - Office rating tool or equivalent.
Prior to the commencement of the development, a Waste Management Plan (WMP) shall be prepared and submitted to the City of Melbourne -Engineering Services. The WMP should detail waste storage and collection arrangements and be prepared with reference to the City of Melbourne Guidelines for Preparing a Waste Management Plan. Waste storage and collection arrangements must not be altered without prior consent of the City of Melbourne - Engineering Services.
Prior to commencement of development a Tree Protection Plan is to be developed in accordance with AS-4970-2009 and must be reviewed and approved by the City of Melbourne's arborist prior to the commencement of development. The removal of any trees is not supported. During all phases of work City of Melbourne trees must be protected in accordance with the Australian Standard for Protecting Trees on Development Sites (AS-4970-2009) and the City of Melbourne's Tree Protection Fact Sheet. A bond for the protection of any street trees potentially impacted by the development will be held by the City of Melbourne. The bond will be equal to the replacement value for a mature tree species and will be held for the duration of the development.
Prior to the commencement of the development, a detailed construction and demolition management plan must be submitted to and be approved by the Responsible Authority - Construction Management Group. This construction management plan must be prepared in accordance with the City of Melbourne plan must be submitted to and be approved by the Responsible Authority Construction Management Plan Guidelines and is to consider the following:

At a glance

Court

Decision date

Source

Judgment (24 paragraphs)

Parties

Cases Cited (1)

FJM Property Pty Ltd v Melbourne CC [2014] VCAT 108 (6 February 2014)