Garden Street Investments v Stonnington CC [2016] VCAT 2016 (2 December 2016)

1. It was common ground that the stand out issue in this proceeding is Council's requirement that three storeys be removed from the project - ie Council believes that levels 5, 6 and 7 should be deleted, which would make the new building have a height of seven storeys rather than 10. This is strongly opposed by the applicant. Apart from this 'height' dispute, other relevant aspects here to the design are that:
   • Above the street wall, the minimum setback is 2.8 metres with marginally protruding balcony elements at levels 4-7, whereas the relevant Amendment C172 provisions (see discussion below) nominates a 3 three setback for this aspect.
   • Level 8 is setback 4.89 metres, where the Amendment C172 preference is for a 6 metres setback.
2. The urban design evidence of Mr Sheppard and the planning evidence of Mr Bromhead during the hearing was to the effect that the relevant planning framework and the nature of the locality and existing built form (together with the strongly evolving nature of this location) justify condition 1(a) being deleted.
3. In seeking to justify condition 1(a), Council has had regard to the proposed Activity Centre Zone Schedule 1, which would be introduced to this locality if Amendment C172 of the Stonnington Planning Scheme is approved. Given the length of time that Amendment C172 has been with the Planning Minister but not approved, I acknowledge that it is a 'grey area' as to whether or not Amendment C172 can be considered a 'seriously entertained planning scheme amendment'. For example, in Third Street Pty Ltd v Stonnington CC [2015] VCAT 1768, the Tribunal expressed more caution about giving Amendment C172 any significant weight, whereas the Tribunal did give considerable weight to Amendment C172 in Chapel Plaza Pty Ltd v Stonnington CC [2015] VCAT 1730.
4. In all the circumstances but noting the increasingly uncertain fate of Amendment C172, I consider it reasonable to give it some degree of weight and I have taken this approach in making my findings set out below.
5. To summarise the relevant key aspects of the relevant planning framework, we know that the site is zoned Commercial 1, but sits in an interface area ie at the edge of the Commercial 1 zoning and close to the Neighbourhood Residential Zone Schedule 3 area. The Special Building Overlay and the Environmental Audit Overlay play no particular role in my discretion. Pursuant to clause 21.05 (housing), the site is located in an area nominated as a Substantial Change Area.
6. Moving the Amendment C172 itself, this is a very detailed proposed control, which establishes a large number of smaller size sub-precincts in this Chapel Street Activity Centre area. The subject land falls within the JF-3 area within the Precinct 2. The preferred maximum height within this JF-3 area is 27 metres (8 storeys). At page 10 of the Council written submission, there is a useful reproduction of the relevant preferred height and setback requirements for the JF-3 sub-precinct area and the nearby equivalent sub-precincts, together with a diagram showing the preferred street wall height and setback.
7. Council's preferred outcome here is for the building to be one level lower than the preferred maximum height ie Council wishes for the building to have a height of 7 storeys, where the preferred maximum height for the JF3 sub-precinct is 8 storeys. In taking this position, Council in summary relies upon the relatively modest size and constrained frontage of the subject land and the other nearby built form, which is more constrained in its height and scale eg the four storey abutting building to the east. Council also argues that the proposal provides no 'significant community benefit', where the planning framework indicates that there will be a greater case for increased heights where such a benefit can be shown.
8. Mr Sheppard's evidence was that this is a rapidly changing context, in the sense that the built form in this locality is rapidly intensifying. He noted the prominent 13 storey 'Clara' building on the northern (opposite) side of the railway line and the nearby 12 storey 'Society' apartment building. He noted that Amendment C172 provides for development with a preferred maximum height of 40 metres on the Jam Factory land to the west. Hence, even allowing for the relatively narrow width of the subject land, Mr Sheppard's view as that it is a reasonable planning outcome to allow the full 10 storeys, but on the basis that the front setback of the third-to-top level is marginally increased to match the front setback of the second-to-top level, as conceptually shown at page 9 of his written report. Mr Bromhead's planning evidence supported the same position.
9. Turning to my own findings, one aspect of the situation here seems more straightforward, whereas the other is more challenging.
10. The more straightforward aspect is that I am satisfied that it is unnecessary and excessive that the building be reduced right down to seven storeys, being one level less than the preferred maximum height.
11. To be clear, my thinking here is not that it is appropriate for the design debate here to go straight to the preferred maximum height and then consider any additional height. While such a line of thinking might suit proponents, it is overly simplistic and fails to do justice to the relevant planning controls. My thinking here is reinforced by Buckerfield Architects v Stonnington CC [2014] VCAT 792 at [8], where the Tribunal stated: