Victorian Civil and Administrative Tribunal|2011-06-20

Forty Ninth Macorp Nominees Pty Ltd v Melbourne CC & Ors [2011] VCAT 1156 (20 June 2011)

Section 79 of the Planning & Environment Act 1987; Melbourne Planning Scheme; Mixed Use Zone, Heritage Overlay Schedule 3, Amended Plans, Design and Development Overlay 32, Clause 21.04, Clause 22.05, Urban Design issues, Maximum Height.

Stuart James Garner, Pascal Rohan, Abbas Malas, Ros Ryan, Frank Barrasso, John Sayers, Michael Horscroft & Geoff Leach, Angela Williams, Paul Kounelis, Ryan Staggard, Vaia Louise Allen, Pan & Gary Britza, Penny Whaley, Kevin Wong Huy, Tiffany Major, Garry Britza

Forty Ninth Macorp Nominees Pty Ltd v Melbourne CC & Ors [2011] VCAT 1156

Pursuant to the VCAT Act 1998, Schedule 1 clause 64(2), the Tribunal permits the following plans to be substituted for the plans accompanying the application, plans prepared by Interland Mantesso Architects, identified as:
- Revision C identified as VCAT Submission 15 April 2011 and includes TP3.03, TP3.04, TP3.06, TP3.07, TP3.08, TP3.09 x 2, TP3.10 x 2, TP3.11, TP3.12, TP3.13, TP3.14, TP3.15.
- Revision D identified as VCAT Supplement 11 May 2011 and includes TP3.05, TP3.18, TP3.19, TP3.20, TP4.01, TP4.02, TP4.03, TP4.04, TP4.05, TP4.06, TP5.01, TP5.02, TP6.01
The decision of the responsible authority in relation to permit application no. TP-2010-494 is set aside

A permit is granted in relation to land at 130-140 Errol Street, North Melbourne. The permit will allow:

Demolition of existing building and construction of a new building

generally in accordance with the endorsed plans and subject to the conditions contained in Appendix A.

Mr Ian Pitt. SC, Best Hooper Solicitors. He called the following witnesses:

Ms Catherine Heggen, urban design and town planning, Message Consultants.
Ms Anita Brady, Lovell Chen architect and heritage consultants.

Mr Ryan Staggard for himself and Mr Kevin Wong Huy.

Demolition of the existing building and construction of a four storey building containing 28 dwellings plus basement car parking.

The dwellings are a combination of one and two bedroom units.

Car parking for 28 vehicles is to be provided in car stacker units within the lower ground/basement level.

Within this lower level/basement, 14 bicycle parking spaces, individual storage areas and bin storage area is provided.

Application under Section 79 of the Planning and Environment Act 1987.

Clause 32.04-5 Construction of two or more dwellings on a lot.

Clauses 11, 15, 16, 18, 21.05, 21.08, 22.05, 22.17, 52.06, 52.34, 52.35 and 65.

The site is a rectangular shaped lot located on the south east corner of Errol and Byron Streets, North Melbourne.

The site has a frontage to Errol Street of 23 metres, a depth to Byron Street of 30 metres and a total site area of 695 square metres. The site has a north east fall of approximately 2 metres.

The site is currently occupied by a single level brown brick commercial/warehouse building. It has a concrete yard to the Byron Street frontage.

We inspected the site and surrounds on 31 May 2011.

Forty Ninth Macorp Nominees Pty Ltd lodged an application for the review of the failure of the Melbourne City Council to determine permit application TP-2010-494 within the prescribed time. This application[2] proposes the demolition of existing building and construction of a five level building containing 28 dwellings with 28 car parking spaces. The Council resolved that it would have refused the proposed development on the basis that the development is contrary to the Heritage Overlay[3], the provisions of clause 22.05[4], contrary to the Design and Development Overlay Schedule 32, insufficient internal amenity for future occupants and has unreasonable impacts on the adjoining residential property. This decision was made notwithstanding an officer recommendation to support the granting of a permit subject to conditions.
At the commencement of the hearing, there was some confusion as to what plans were being relied upon. We need to be clear that the plans that form part of our assessment include those identified in the Order above, being a combination of Revision C and D plans. We have accepted the Revision D plans for the following reason.
A letter was received on behalf of Mr Garner an objector at 3/57 Byron Street, advising of an agreement between the parties should a permit issue agreeing to an additional change to the plans which reduces the height of the second floor parapet (to the east of unit 28) by 300mm. As part of the agreement, reference is made to the Revision D set of plans. In their evidence both Ms Heggen and Ms Brady referred to the circulated Revision C plans as well as a Revision D set of plans, which included their own design amendments. It appeared that all parties were referring to both Revision C and D plans for their assessment.
The issue regarding the proposal before us is how the proposed developments fits within its context in heritage, design and neighbourhood character terms. This is not a case about the suitability of the site for development, the number of car spaces to be provided or levels of internal amenity. We say this for the following reasons.
The site has a number of locational characteristics, which indicate that it can be developed to further urban consolidation objectives of the planning scheme. Clause 21.04[5] recognises that some areas within North Melbourne have the capacity to sustain an increase in population, whilst other areas are 'stable' and little growth is envisaged. There was no evident dispute between the parties regarding the suitability of the site for redevelopment to meet urban consolidation objectives. We accept that the site is suitable for some form of higher density development, and that this is promoted by planning policy.
We are also not concerned with the number of car spaces provided, one car space per dwelling is permitted. The amenity issues of overshadowing and overlooking have been addressed by the amended plans. We accept that the amenity impact on the adjoining properties is acceptable.
The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Melbourne Planning Scheme, we have decided to direct the issue of a permit subject to conditions. Our reasons follow.

Ms Williams put to us that there is tension between the heritage and urban design policies as they apply to the site, and that the heritage policies should be paramount. In this case, we do not see the same degree of tension between the policies. We agree with the submission of Mr Pitt that the outcomes sought by urban design policy are consistent with the outcomes sought under the heritage policy.
Clause 22.05[6] seeks to ensure that new development makes a positive contribution to the built form and amenity of the area and are respectful to the architectural, social or historic character and appearance of the streetscape and the area. Urban design policies at clause 22.17[7] establish more specific design objectives but it can be said that they also generally seek to ensure that buildings are designed to achieve a high standard of design. The maximum height of the site is clearly contemplated by the application of the DDO32 and the height set at 14 metres. There is a clear direction that any future development of this site is to be site responsive and make a positive contribution to the streetscape.
The dispute between the parties primarily focused on the design and look of the building and how it sits within the Errol Street streetscape. We should therefore look at the site within its context.
Errol Street contains a wide median planted with Plane trees. The subject site is located on the fringe of the Errol Street shopping strip. Of note is the former North Melbourne Town Hall and clock tower. Adjoining the site to the south are two single storey terraces. To the north the streetscape is a row of single storey buildings. To the east adjoining the site is a three storey residential development and on the western side of Errol Street opposite the subject site, is a collection of double storey Victorian and more recent buildings used for residential and non residential uses. The surrounding area is diverse in terms of period, scale, form and materials.
Having regard to the heritage precinct [HO3], we agree with the evidence of Ms Brady that the heritage precinct is very large and diverse having built form of varying periods. We further accept the evidence of Ms Brady that this heritage precinct is not one, which derives its significance from consistent streetscapes of lower scale development. The significance of the Errol Street streetscape changes from Level 2[8] to both the north and south of the site to Level 3 for the site between Byron Street and Bendigo Streets.
The DDO32 provides clear direction as to the maximum height of the building, 14 metres. The building complies. It further establishes the relevant design objectives:
- To maintain the predominant low scale nature of the area.
- To ensure that development retains views to significant landmarks.
- To ensure development supports high levels of pedestrian amenity related to access to sunlight and sky views and a pedestrian friendly scale.
The built form outcomes sought to achieve include as relevant:

New development respects existing built form especially low scale of the existing older building stock in the street.

Development in streets with higher typical built form provides a transition in scale to the lower building forms.

Development which retains views to the landmark Meat Market building and the North Melbourne Town Hall roof and tower.

Ms Williams was critical that the proposed height of the building failed to respect the existing built form and low scale of the existing older building stock in the street. It must not be forgotten, that the DDO clearly contemplates a height of 14 metres in this location.
The Revision D plans present to Errol Street as a 2 to 3 storey building. The higher levels have been setback to read as a recessive element to Errol Street. The façade to Errol Street has also been modified as suggested by Ms Heggen and Ms Brady to introduce a masonry treatment at the ground and first floors so there is a greater solid to void ratio and reflects a 'terrace' rhythm across the frontage.
We agree that consideration of any building and height must be combined with good design. We are persuaded by Ms Brady that the use of the masonry at the lower levels combined with the vertical articulation of the building responds to the fine grain of development to the street. We are also comfortable that the proposed height of the building to Errol Street provides a transition in height from the single storey terraces to the west rising up to the more robust forms within the Errol Street shopping centre.
This is a building that will sit taller than its immediate surrounds. However, the building is anchored to the street as a 2-3 storey building which is an appropriate response. Levels 4 and 5 are recessive. Whilst the upper levels will be visible from a distance, the building does not impact on any significant view. We are satisfied that the building sits comfortably on the site and within its context.
Ms Williams put to us that the Errol Street elevation is dictated by the car parking provision which results in an unacceptable plinth height and treatment on the corner of Errol and Byron Streets. Car parking is provided in a semi-basement and basement level taking advantage of the 2 metre slope in the site. Mr Pitt did not dispute this as 'driver' for the design. He submitted that there is a legitimate debate to be had regarding the 1.8 metre high plinth on the corner. He further submitted that a reduction in the car parking to 17 spaces could result in the building being lowered by 0.9 metres.
Due to the slope of the land, the Byron and Errol Street corner results in a 1.8 metre high solid plinth or wall. We raised concern that this wall may be considered as harsh and solid and failed to provide any interaction at street level. Based on our site inspection, we were surprised to observe that this treatment is common with many heritage buildings within the immediate surrounding area. Our walk around several blocks provided many examples of buildings built on the boundary with single storey walls. For example, this occurs on the north east corner of Errol and Byron Streets, the south east corner of Errol and Arden Streets just to name two.
Having regard to the heritage context, we accept this corner treatment as reflective of what occurs within the surrounding area and will not require changes. To put it simply, it is an interpretation of a condition that has occurred for 100 years.

A range of other concerns were raised by Ms Williams. In regards to the disabled access, we are persuaded by Mr Pitt that this issue will be addressed at the building approval stage and can be accommodated. We understand that access to the ground level Errol Street units may be amended to provide acceptable access.
The DDO32 places a mandatory height limit of 14 metres for all buildings and works. Mr Livingston submitted that development exceeds this limit as the building has a height of 14.5 metres to Byron Street[9]. We accept the submission of Mr Pitt that the frontage of the site is considered to be to Errol Street and therefore the building complies with the provision of DDO32.

Having regard to the above, the decision of the responsible authority will be set aside and a permit issued subject to conditions.

Demolition of existing building and construction of a new building

Prior to the commencement of any demolition on the land, the applicant must submit to the Responsible Authority three copies of plans drawn to scale generally in accordance with the plans identified as:
- Revision D identified as VCAT Supplement 11 May 2011 and includes TP3.05, TP3.18, TP3.19, TP3.20, TP4.01, TP4.02, TP4.03, TP4.04, TP4.05, TP4.06, TP5.01, TP5.02, TP6.01

(a) The height of the second floor parapet (to the east of Unit 23) relative to the site's eastern side boundary by 300mm.

(b) Measures to improve the sightlines when existing at the foot ramp to the satisfaction of the Responsible Authority;

(c) Revised layout of the car park to accommodate pillars and stackers to the satisfaction of the Responsible Authority;

(d) A swept path diagram demonstrating access to space 8 to the satisfaction of the Responsible Authority;

(e) A longitude section of the ramp demonstrating adequate headroom to the satisfaction of the Responsible Authority;

(f) Any amendments required by the Waste Management Plan required by condition 4.

These amended plans must be to the satisfaction of the Responsible Authority and when approved shall be the endorsed plans of this permit.

The development as shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.
A schedule and samples of all external materials, colours and finishes must be submitted to the satisfaction of the Responsible Authority prior to the commencement of the development. The schedule must show the materials, colours and finishes of all external walls, roof, fascias, window frames, glazing types, doors, balustrades, fences and paving, (including car park surfacing), outbuildings and structures.
Prior to the commencement of the development, including demolition or bulk excavation, a detailed construction and demolition management plan must be submitted to and be approved by the Responsible Authority. This construction management plan is to be prepared in accordance with the City of Melbourne - Construction Management Plan Guidelines and is to consider the following:
- Public safety, amenity and site security.
- Operating hours, noise and vibration controls.
- Air and dust management.
- Stormwater and sediment control.
- Waste and materials reuse.
- Traffic management.
Prior to the commencement of development a Waste Management Plan (WMP) must be submitted. The WMP must comply with Council's Waste Guidelines 2010 and be to the satisfaction of the Responsible Authority.
The owner of the subject land should construct a drainage system, incorporating water sensitive urban design, within the development and make provision to connect this system to the City of Melbourne's stormwater drainage system in accordance with plans and specifications to the to the satisfaction of the Responsible Authority.
The Owner of the subject land should construct all necessary vehicle crossings and demolish all unnecessary vehicle crossings adjacent the subject land in accordance with plans and specifications to the to the satisfaction of the Responsible Authority.
The Owner of the subject land will not be permitted to alter the existing footpath/road levels in Errol Street and Byron Street for the purpose of constructing new vehicle or pedestrian entrances to the satisfaction of the Responsible Authority.
The Owner of the subject land should reconstruct the footways in Errol Street and Byron Street adjacent the subject land in accordance with plans and specifications to the to the satisfaction of the Responsible Authority.
Any requirement to temporarily relocate street lighting should be to the satisfaction of the Responsible Authority.
All necessary approvals and permits are to be first obtained from the City of Melbourne and the works performed to the satisfaction of the Responsible Authority.
This permit will expire if one of the following circumstances applies:
- The development is not started within two years of the date of this permit.
- The development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards

[1] We have considered all submissions presented by the parties although we do not recite all of the contents in these reasons.

[2] As amended. Original application was for 34 dwellings and 34 car spaces.

[4] Heritage Places Outside the Capital City Zone.

[6] Heritage Places Outside the Capital City Zone.

[7] Urban Design Outside the Capital City Zone.

[8] The streetscape grading of Level 2 and Level 3 refer to clause 22.05 of the Melbourne Planning Scheme.

[9] The height of the building at a midpoint to the Errol Street frontage is 13.3 metres. The height at the midpoint to Byron Street is 14.5 metres.

Environment Act 1987

Forty Ninth Macorp Nominees Pty Ltd v Melbourne CC & Ors [2011] VCAT 1156

At a glance

Court

Decision date

Source

Judgment (43 paragraphs)

Forty Ninth Macorp Nominees Pty Ltd v Melbourne CC & Ors [2011] VCAT 1156 (20 June 2011)

Parties

Legislation Cited (2)