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[147]
[2021] VCAT 1093
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2021-10-05
Mr J
Original judgment source is linked above.
Dr Catherine Clark, Fitzroy Residents Association, Joanna Yan, Navin Khorana, Piccolo Argyle Pty Ltd, Mitchell Grady, Carly Donovan & Others
88 Kerr Street, 71-75 Argyle Street and 380 Fitzroy Street,
Hengyi (88 Kerr) JV Pty Ltd v Yarra CC [2021] VCAT 1093
1 Pursuant to clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
TP-2.01 to TP-2.16 inclusive, TP-3.01 to TP-3.06 inclusive, TP-4.01 to TP-4.04 inclusive, TP-6.01 to TP-6.08 inclusive
2 The applicant is provided with the opportunity to prepare amended plans that address issues identified by the Tribunal which have not been resolved to its satisfaction.
3 By no later than 29 October 2021, the Applicant must advise the Tribunal in writing whether it wishes to take up the opportunity to amend the plans of the proposed development, and if so, by what date the amended plans will be prepared (the 'Amended plans date'). A copy of the response to this order must be provided to the other parties.
4 By close of business on the Amended plans date, the Applicant must circulate to the Tribunal and all parties a copy of the amended plans drawn to scale and appropriately dimensioned. The Applicant must also provide by this date a written submission detailing the changes incorporated in the amended plans and explaining how the plans respond to the issues identified by the Tribunal.
5 By close of business fourteen days after the Amended plans date, the Council and objectors may make written submissions in response to the changes detailed in the amended plans. There is not an opportunity for these submissions to address matters other than the changes detailed in the amended plans.
6 At any stage prior to this date any party may request a further hearing to make further written and oral submissions about the amended plans.
Ms N Collingwood of Counsel instructed by Mr A Iser of Planning and Property Partners.
A statement of evidence prepared by Mr B Watson was filed but Mr Watson was not called to give evidence.
Mr M Brennan appeared on behalf of the Fitzroy Residents Association.
Mr W Pearce appeared on behalf of Dr Catherine Clark
Demolition of all buildings and structures and the construction of a seven-storey building above three levels of basement car parking. The proposal comprises commercial premises (food and drink premises) with frontages to both Kerr street and Fitzroy Street. Above the ground floor commercial premises, it is proposed to provide 29 dwellings comprising a mix of 2 and 3 bedroom apartments.
Application under section 79 of the Planning and Environment Act 1987 - to review the failure to grant a permit within the prescribed time.[1]
Clause 45.06: Development Contributions Plan Overlay (DCPO1).
Clause 32.04-2: A permit is required to use the Subject Land for Food & Drinks premises.
Clause 32.04-6: A permit is required to construct two or more dwellings on a lot. An apartment development of 5 or more storeys, excluding basement, must met the requirements of Clause 58.
Clause 43.01-1: A permit is required under HO334 to demolish or remove a building, construct a building or construct or carry out works.
Clause 52.06-5: A permit is required to reduce (including reduce to zero) the number of car parking spaces required under Clause 52.06-5. A reduction of 14 parking spaces is required for the proposal (7 residential and 7 commercial).
The site is located on the south side of Kerr Street and the east side of Fitzroy Street. It has two frontages, one to Kerr Street of 15.53m (including the 2.68m wide laneway adjacent to 84 Kerr Street) and one to Fitzroy Street of
The site shares a boundary to the north with 70 Kerr Street for 15.67m and a boundary to the west with 76-84 Kerr Street of 22.98m.
The site has an interface with a north- south aligned bluestone laneway along the extent of its eastern boundary for 37.01m.
The site also has laneways to the side of 84 Kerr Street and the rear of 76-94 Kerr Street that are shown as part of the Subject Land on title but are affected by easements benefitting the adjacent lots and are identified on Council's Road Register as Right of Ways.
The site has an 'L' shaped configuration with a total area of 1,187 square metres. It is currently occupied by a two-storey office building and an at grade car park accessed from Fitzroy Street.
The site has several direct abuttals, including the rear of commercial properties that front Brunswick Street to the east. To the south there is an apartment building and a commercial building fronting Argyle Street, and on the corner of Argyle Street and Fitzroy Street is a seven-storey building with basement car parking comprising office and dwelling uses. It includes the preserved streetscape of the former Arthur Engineering Co factory that has individual heritage significancet. Known as Fitzroy House, this development is nearing completion.
A two-storey commercial building of late 20th C origins is located on the corner of Fitzroy and Kerr Streets (70 Kerr Street).
The properties at 76 to 84 Kerr Street are single and double storey terrace houses. They are separated from the review site by the east-west aligned lane that runs along their rear boundaries and are graded as contributory heritage buildings.
The Fitz Café and roof top bar is located on the south west corner of Kerr Street and Brunswick Street and is graded as an individually significant heritage building. The Evelyn Hotel is located on the north west corner of Kerr Street and Brunswick Street and is graded contributory. Both heritage buildings have a frontage to Brunswick Street but with their longer frontages to Kerr Street.
The north side of Kerr Street opposite the review site comprises double storey Victorian-era terraces, which are constructed to their respective lot boundaries at Kerr Street and are graded as contributory heritage buildings. They directly adjoin the Evelyn Hotel thus forming a complete heritage streetscape.
In a wider context the site forms part of a former industrial precinct that is undergoing a rapid transition to a mixed-use precinct comprising residential and commercial uses. It enjoys immediate access to the Brunswick Street Major Activity Centre (adjoining to the east). Several higher density residential and commercial developments have been approved and have been constructed or are under construction. The built form is mixed. Kerr Street is a relatively low scale street reflecting its heritage stock and industrial history. Brunswick Street is a heritage street with traditional commercial frontages and built form. Along Fitzroy Street, there are heritage buildings with more recent upper additions. Along Argyle Street, the built form is also relatively recent and more robust.
We conducted an unaccompanied inspection of the site and the surrounding neighbourhood during the hearing.
1 This is an application to review the failure of the Responsible Authority to grant a permit within the prescribed time in respect of a permit application for a mixed-use development at 88 Kerr Street, 71-75 Argyle Street and 380 Fitzroy Street, Fitzroy North.
2 The Responsible Authority ultimately decided that had it not been for the application for review it would have refused permission for the following reasons:
3 There are objectors to the application who broadly support the Council's grounds of refusal. The objectors do raise additional matters including concern about the proposal's impact on the amenity of future residents in the abutting Fitzroy House development, the impact on the amenity of the abutting terrace houses, and the lack of affordable housing provision.
4 Council argues that the southern end of the South Fitzroy precinct has a higher percentage of significant and contributory buildings, and that Kerr Street is particularly intact and requires a more sensitive response. They say the extent of visibility of the development in Kerr Street would negatively impact upon the heritage environment, and similarly the proposal would intrude into the Brunswick Street environment, that is a particularly intact Victorian streetscape that presently has very few modern intrusions.
5 The Council and objectors say the proposal fails to respond to the off-site amenity of the surrounding properties and public realm, resulting in unreasonable visual bulk, noise, overlooking and overshadowing impacts. Council points to the five Victorian terrace houses to the immediate north of the subject site and says the extent of overlooking and visual impacts to the secluded private open spaces of these properties would effectively destroy the amenity of those spaces. Similarly, it is submitted the proposal would unreasonably impact upon the amenity of the developments to the south, because of the extent of development across the site.
6 Council says the proposal has not taken sufficient account of the existing music venues on both corners of Brunswick Street, as required by clause 53.06 (Live music and entertainment noise) of the Yarra Planning Scheme.
7 They say the proposal would result in an unacceptable internal amenity outcome, contrary to clause 15.01-2 (Urban design principles), clause 21.05-2 (Urban design), clause 58 (Apartment Developments).
8 The Respondents support Council's position, saying the amenity impacts upon the existing residences both to the north and south will be severe. They also strongly support concerns about the impact upon the heritage context of the area and on the pedestrian environment of Fitzroy Street.
9 The Applicant argues that policy clearly supports intensification in this area and that there is a clear trend towards development of this scale in and behind heritage streetscapes. They say that it is not necessary for new development to be invisible in such a context, and that the setbacks and particularly the introduction of the 9m gap provides an acceptable response to the heritage context.
10 They say amenity impacts have been acceptably dealt with through screens and ledges, and that it would be unreasonable to require greater setbacks given the limited depth of the site, given the strategic policy support for intensification.
11 Having considered the submissions and the evidence and having inspected the site and the surrounding neighbourhood, we have concluded that the primary issues in this case can be categorised under the following headings:
12 Having considered all submissions and evidence presented and having regard to the applicable policies and provisions of the Yarra Planning Scheme, we have decided that changes are required to the proposal to achieve an acceptable outcome.
13 In summary, the changes generally amount to the reduction of one floor across the main part of the development. We also invite the Applicant to consider further refinement of the Kerr Street façade. Relatively small changes are required to achieve acceptable internal amenity outcomes.
14 The changes we have identified are likely to result in additional consequential changes to floorplans and basement layouts. The changes also go beyond what can reasonably be achieved by way of permit conditions. Because we are satisfied that the redevelopment of the review site is supported by the relevant policy provisions of the planning scheme, we have therefore decided to issue an interim decision to provide the Applicant with the opportunity to respond to our concerns about the form and scale of the proposed building, through the preparation of amended plans.
15 Our Order puts in place a process that requires the Applicant's amended plans to be provided to other parties and invites submissions from the parties on the amended plans. Those submissions must be limited to the changes detailed in the amended plans.
17 The Subject site is located on the south side of Kerr Street, Fitzroy and is an L shaped parcel of land made up from several titles with a total site area of approximately 1,187sqm (including the easement / laneway). The topography of the land including the surrounds is relatively flat.
18 It has a frontage to Kerr Street of 15.53m (including a 2.68m wide easement / access lane on its western boundary) and a second frontage to Fitzroy Street to the west of 16.97m. The bulk of the land is behind other sites except for the eastern boundary, that addresses a narrow service lane that also serves the rear of Brunswick street properties. The general arrangement and abuttals can be seen in the cadastral plan extract below:
Figure X Subject land and immediate context (Subject land outlined in blue) Source: Council submission p3/62 / VicPlan.com.au
19 It has a frontage to Kerr Street of 15.53m (including a 2.68m wide easement / access lane on its western boundary) and a second frontage to Fitzroy Street to the west of 16.97m. The bulk of the land is behind other sites except for the eastern boundary, that addresses a narrow service lane that also serves the rear of Brunswick street properties.
20 The Subject site shares a boundary to the north with 70 Kerr Street for 15.67m and a boundary to the north and west of 22.98m with 5 sites containing Victorian Terrace houses at 76-84 Kerr Street, with No 84 being the site immediately adjacent the easement / access lane.
21 The site interfaces with the bluestone laneway along the extent of its eastern boundary (as noted above) for 37.01m.
22 The laneways to the side of 84 Kerr Street and the rear of 76-94 Kerr Street are shown as part of the Subject Land on title but are affected by easements benefitting the adjacent lots and are identified on Council's Road Register as Right of Ways.
23 A two-storey modern office building is located at 88 Kerr Street and an at-grade open-air car park is at 380 Fitzroy Street which is accessed from Fitzroy Street. This building is of 1950s/60s era brick masonry construction with a floor area of 950sqm. It is constructed to the boundary at Kerr Street and along the southern boundary and eastern laneway. The open-air car park provides 11 car parking spaces. It has a vehicle crossover on the northern end of the Fitzroy Street frontage.
24 A small cluster of seven trees is located to the west of the building at 88 Kerr Street.
25 To the north, the Subject Land abuts Kerr Street, a wide local street (approximately 20m) with one lane of traffic in each direction and parallel parking and a bike lane along its southern side. There are well established street trees on the southern side that appear to be London Plane trees, with a smaller and likely more recently planted species on the north side.
26 On the southern side of Kerr Street (and immediately to the north of the interior part of the subject site) are five Victorian-era terraces, which are constructed to their respective lot boundaries at 76-84 Kerr Street. No 82 and 84 are a pair of single storey terrace houses in apparently original condition; the remaining three are two storey terrace houses some with apparent recent changes. The private open space to the rear of each lot interfaces with the right of way easement aligning the common boundary with the Subject Land.
27 Further to the west on the corner of Fitzroy Street is 70 Kerr Street, a 2-storey commercial development of apparently late 20th Century origins, with vehicular access off Fitzroy Street.
28 Further to the west again, on the south side of Kerr Street is a two-storey building that appears to be a former Victorian era hotel but may be presently used as a residence. This is followed by several two and then single storey Victorian era terrace houses.
29 On the northern side of Kerr Street are a mix of fine-grain commercial and residential dwellings of a particularly consistent two storey scale built to the street edge, and apparently built at a similar period. This row extends from Fitzroy Street in the west to The Evelyn Hotel that wraps around the corner into Brunswick Street.
30 Further to the west across Fitzroy Street there is a single storey house and corner shop and then a row of seven single storey Victorian terrace houses, followed by a recently constructed 4 and 6 storey development at 41 Kerr Street and 48 Rose Street (with the 6 storey component located towards the Rose Street part of the site).
31 To the north-west of the Subject Land is 419 Fitzroy Street, Fitzroy. A 7-storey development has recently been approved for this site to be used as a residential hotel (planning permit application PLN18/0990).
32 To the east the Subject Land abuts a 3.75m laneway which runs in a north-south direction from Kerr Street to Argyle Street. On the eastern side of the laneway are 6 attached 2 storey heritage retail buildings at 337-345 Brunswick Street with frontage to Brunswick Street. These properties are accessed via the laneway. A two storey heritage street wall of "The Fitz" Café wraps around the corner from Brunswick Street to the laneway adjacent to the Subject Land, noting that the western end of "The Fitz" comprises a rooftop bar over what appears to be a non-heritage extension.
33 Further east is the Brunswick Street Major Activity Centre (MAC) and commercial spine which is characterised by numerous fine grain commercial buildings of 1 and 2 storeys.
34 To the south is 71-81 Argyle Street. At 71-75 Argyle Street, the 'Fitzroy House' development is currently under construction, being a 7-storey residential building above an office with frontage to Argyle Street and Fitzroy Street corner. This development retains the heritage building at the frontage to Argyle Street and Fitzroy Street and has a 3-storey podium along Fitzroy Street. It will be constructed to the southern boundary of the site for 6 storeys except for a 3m wide light court and a 4.5m setback at the eastern boundary. The top (7th) storey of this development will be set back 4.2m from the common boundary with the Subject Land.
35 Also south at 77-79 Argyle Street there is a 3-storey office building that has a sloping roof, resulting in a one storey interface with the Subject Land.
36 At 81-83 Argyle Street is a 6-storey apartment building generally built to the common boundary with the Subject Land. The upper floors of this development are visible across the top of the shops from the eastern footpath in Brunswick Street.
37 At its interface with the western boundary of the Subject Land, Fitzroy Street is a narrow, one way, south bound street with curb-side car parking on the eastern side. On the western side of Fitzroy Street is a single storey warehouse building used as a Restricted Recreational Facility (Personal Training Studio).
38 More broadly the subject land is located within a former industrial pocket known as 'Fitzroy West'; and is located in close proximity to the Brunswick Street MAC which is served by trams (adjoining to the east) and the Johnson Street Neighbourhood Activity Centre (NAC) (88m to the south).
39 It is surrounded by a mix of uses with the allotment pattern being typically a relatively fine grain but with some variation. Land to the north-west and north is characterised by a mix of residential and larger lots for commercial uses, as is the north side of Argyle Street. Land along Brunswick Street to the east comprises predominantly commercial and retail uses.
40 The subject site is located approximately 400m to the south of Alexandra Parade, a major arterial road providing a linkage from the Eastern freeway into the Melbourne CBD; and is approximately 2km to the north of the Melbourne CBD.
41 The built form of the area varies. Kerr Street is a relatively low set street indicative of its heritage stock with traditional built form and hip and gabled roofs with a distinctly industrial history. Brunswick Street is a heritage street with traditional commercial frontages and built form.
42 Along Fitzroy Street, there are heritage buildings with more recent upper additions. Along Argyle Street, the built form is also relatively recent and more robust.
43 Fitzroy west has been undergoing a noticeable transformation in recent years, with the introduction of larger mid-rise mixed use/apartment buildings often extending deep into the blocks, These are presently more noticeable further to the north in Moore Street and further north, where the existing fabric is more varied.
44 The proposed development involves the demolition of all buildings, structures and surfacing on the Subject Land (except for the easements), as well as the removal of the existing crossover on Fitzroy Street, and the construction of a mixed use "L shaped" building that extends over most of the site from Kerr Street through to Fitzroy Street.
45 The proposed building would vary from 3 to 7 storeys with a maximum height of 24.2m (excluding plant) over 3 levels of basement car parking with a total site coverage of 89%; the basement car parking will comprise 16 car parking spaces on basement 3 and basement 2, and 15 car parking spaces including one DDA compliant space on basement 1 (47 total). These car parking spaces are all allocated to residents with the exception of 2 car spaces, which are allocated to the 2 commercial tenancies in the building (i.e. one space per tenancy).
46 Access to the basement car park is proposed from Fitzroy Street with a 6.5m wide crossover adjacent to the southern boundary on Fitzroy Street. Access to the basements would be via a car lift, with a 'vehicle hold area' proposed from Fitzroy Street, preceding the car lift. The basements are generally constructed to the title boundaries and are shown to encroach slightly over the title boundary to the north, over the ROW and Kerr Street.
47 52 bicycle spaces are provided within the basements, with a repair station on basement level 2. The bicycle spaces will be allocated as follows:
48 The building will have a 3-storey street wall built to the title boundary to both Fitzroy Street (11.39m) and Kerr Street (10.4m), except for the ground level commercial frontages to which would both have a small recess.
49 Beyond each street wall the building progressively steps back and in before reaching its maximum eight of 7 storeys, with a 9m gap between the two "wings" down to a four-storey linkage. The setbacks are as follows:
Ground level - 0.9m to the glazing from Kerr Street
Levels 1 and 2 - 2.2m (with balcony built to Kerr Street boundary)
Level 3 - 8.2m (with a balcony accommodated in setback area, which is set back 0.9m to Kerr Street boundary and with a raised planter of approximately 1m deep forming the northern edge)
Levels 4 and 5 - 7.6m (with balcony and planter accommodated in setback area, which is set back 5.1m to Kerr Street boundary and with a raised planter approximately 0.6m deep forming the northern edge.)
Level 6 - 22.8m (with balcony accommodated in setback area, which is set back 15.2m to Kerr Street boundary)
Ground level - 1.2m to the glazing from Fitzroy Street
Levels 1 and 2 - built to Fitzroy Street boundary (with balcony accommodated in part of setback)
Level 3 - 2.2m (with balcony built to the Fitzroy Street boundary)
Levels 4 and 5 - 2.5m (with balcony accommodated in part of the setback)
Level 6 - 5.3m (with balcony accommodated in setback area, which is set back 2.1m to Fitzroy Street boundary);
IS THE PROPOSAL ACCEPTABLE IN ITS STRATEGIC CONTEXT?
50 We have commented previously that the review site is located within a former industrial pocket known as 'Fitzroy West'. The site is close to the Brunswick Street MAC which is served by trams (adjoining to the east) and the Johnson Street Neighbourhood Activity Centre (NAC) (88m to the south).
51 Because of its proximity to activity centres and public transport, and all the retail, commercial, employment, entertainment and recreational facilities typically concentrated in activity centres, the site is very well located in strategic terms.
52 Because of its strategic location, the Fitzroy West area has been the focus of significant redevelopment in recent years, broadly in line with the planning scheme's strategic settings.
53 In this respect, in relation to the current proposal applicable policy seeks to:
54 The review site and the broader Fitzroy West area is zoned Mixed Use. The relevant purpose of the zone is to implement policy and:
55 The Fitzroy West area is also affected by a Heritage Overlay (HO334), the relevant purpose of which is to implement policy and to conserve and enhance heritage places, conserve and enhance those elements which contribute to the significance of heritage places, and ensure that development does not adversely affect the significance of heritage places[12].
56 During the hearing we were advised that the Council has undertaken a significant amount of strategic work intended to review policies and to provide more precise direction about intended built form outcomes across the municipality and for this locality specifically.
57 The built form in Fitzroy West was assessed as part of the Fitzroy & Collingwood Built Form Review Stage 2: Fitzroy West, Built Form Framework (December 2020) (Built Form Framework) prepared by Hansen Partnership in conjunction with GJM Heritage.
58 The Built Form Framework formed the basis of Amendment C288 which proposes to introduce Design and Development Overlays (DDO's) to areas of Fitzroy and Collingwood, including Fitzroy West. The review site is proposed to be included in schedule 40 to the DDO (DDO40). The relevant Design objectives of DDO40 encourages development to respond to the mixed typology and heritage character in the streetscape by supporting a mid-range character (ranging from 3 to 8 storeys).
59 In relation to the review site, the proposed DDO40 would provide for a preferred building height of 5 storeys (17.6m) for the lot facing Kerr Street, and 6 storeys (20.8m) for the balance of the site. The proposed DDO40 provides that a permit should only be granted to construct a building exceeding the preferred building height where a range of criteria are met to the satisfaction of the of the responsible authority. Preferred street wall heights (2 storeys (8m) along Kerr Street and 3 storeys (11.2m) along Fitzroy Street) are specified together with preferred upper-level setbacks.
60 The Council in March 2021resolved to request the Minister for Planning to approve Amendment C288 under section 20(4) of the Planning and Environment Act 1987 (the Act). The Minister has not yet made a decision on Amendment C288.
61 Amendment C269yara to the Scheme proposes to update Council's local policies by replacing the Municipal Strategic Statement (MSS) at clause 21 and local planning policies at clause 22 of the Scheme with a Municipal Planning Strategy (MPS) and local policies within the Planning Policy Framework (PPF), consistent with the structure introduced by Amendment VC148.
62 Relevantly the revised local planning policy seeks to include the Fitzroy West Mixed Use precinct within the Brunswick Street MAC. The following relevant strategy for the revised MAC is provided below:
Support development that responds to the character distinctions between the commercial land with frontage to Brunswick Street and the Mixed Use zone behind.
63 The review site and surrounding MUZ land is identified as being an 'incremental change area', consistent with the Yarra Housing Strategy. The following proposed strategy is:
Support mixed use development in incremental change areas within activity centres to maintain the role and function of the centres as locations for economic activity.
64 Amendment C269 was exhibited between 20 August 2020 and 4 December 2020. In response, 421 submissions were received. The submissions were considered at the Council meeting on 4 August 2021, during this hearing.
65 The Council at its meeting on 4 August resolved to request the Minister for Planning to appoint an independent Panel to consider all submissions.
66 A Panel has been appointed but hearing dates remain unknown.[13]
What Weight have we given to the Planning Scheme Amendments?
67 During the hearing all parties were provided with the opportunity to make submissions about the weight to be given to the planning scheme amendments.
68 The Council, the Applicant and most of the respondent objectors acknowledge that the amendments do not qualify as seriously entertained planning proposals[14]. Notwithstanding their positions on the status of the amendments, the parties did make relatively detailed submissions about them in support of their respective positions in this case. The Council for example went to some lengths to differentiate this proposal from the built form outcomes encompassed within proposed DDO40. The Applicant for its part referenced and sought to rely on the inclusion of the Fitzroy West MUZ in the Brunswick Street MAC.
69 The Fitzroy Residents Association submits that we ought to accord both amendments significant weight because the strategic intent of both amendments has been adopted by the Council and they represent the views of the broader community.
70 It is self-evident that neither C288 nor C269 can be regarded as seriously entertained. While C269 has been exhibited it has received many submissions. Those submissions have not yet been considered by a Panel. After the Panel hears those submissions it will make recommendations to the Council as the Planning Authority which will then consider those recommendations before adopting the Amendment in whatever form it considers appropriate. The Council is also empowered to abandon the Amendment.
71 It is of some relevance that the strategic basis underlying both amendments continue to recognise the Fitzroy West MUZ as an area in which redevelopment is contemplated in a manner that achieves a balance between the precinct's acknowledged locational attributes and its heritage values. In this respect we agree with the Council's submission that the Amendments have some value in that they reflect the Council's strategic thinking for this area. It is of some relevance therefore that neither amendment facilitates a fundamental reversal in strategic direction for the Fitzroy West MUZ.
72 Beyond that however, we are unable to accord any significant weight to either amendment in our consideration of this application primarily because there is considerable uncertainty about the final, adopted form of those Amendments.
73 The parties are not significantly apart in their submissions about the review site's strategic context. It is broadly acknowledged that redevelopment of the site can be supported on strategic grounds.
74 In large part the dispute in this case focusses on built form issues and the acceptability of the proposal's design response. The proposal's acceptability will be informed by the underlying strategic framework applying to the site, but in the absence of detailed built form controls which give effect to adopted strategic objectives we are left with the task of deciding on this proposal's acceptability without the benefit of the guidance provided by those detailed controls.
75 We acknowledge that DDO40 proposed to be introduced via Amendment C288 is an attempt to provide guidance on detailed built form outcomes. However, for the reasons outlined above DDO40 is not a control we can appropriately apply in our consideration of this proposal.
76 Our assessment of the proposal's built form is detailed below.
DOES THE PROPOSAL ACHIEVE BUILT FORM OUTCOMES THAT ARE APPROPRIATE TO ITS CONTEXT INCLUDING THE HERITAGE CONTEXT?
77 The subject site is located within the South Fitzroy Precinct, HO334. This is a very large precinct, extending from Victoria Parade to the south to Alexandria Parade to the north, and from Nicholson Street to the west to the rear of properties facing Brunswick Street almost immediately to the east.
78 It was acknowledged by all parties that the consistency of heritage properties varies across the precinct, with the south eastern portion of the precinct having a generally higher proportion of individually significant and contributory buildings; while parts to the north and west are more varied.
79 Kerr street is one of the parts of this precinct that has a higher concentration of heritage buildings. On the north side of Kerr Street, opposite the subject site, is a consistent row of two storey terrace houses that extends from Fitzroy Street to the Evelyn Hotel, which is of a similar scale. Almost all these buildings are graded as contributory including the Evelyn Hotel.
80 To the west of Fitzroy street, there is a mix of one and two storey buildings with more contributory buildings, until 41 Kerr Street which has a recently constructed 4 and 6 storey residential development (with the 6 storey component set to the north facing Rose Street).
81 The south side of Kerr Street is more mixed. No 88 Kerr Street (the northern part of the subject site) is a modern non-contributory building of two storeys. To its west are the five existing terrace houses all graded contributory, followed by No 70 Kerr Street which is a contemporary two storey building
82 Immediately to the east is HO311, the Brunswick Street Precinct. This is a narrow north-south precinct that extends only one block deep in the vicinity of the subject site. All parties acknowledged that this is a relatively intact heritage environment however there was disagreement about the sensitivity of the street to intrusion from the neighbouring precinct and the proposed development.
83 Fitzroy Street was accepted as being less sensitive by both heritage experts.
84 Having reviewed the context for the proposal, we now turn to the questions we find are critical to determining if the response to context is acceptable.
85 The proposed development would provide a 3-storey street face to Kerr Street, with progressive setbacks to the upper levels culminating in the 7th storey that would return across the east-west part of the site to the point where the 9m "gap" commences. The expressed intention is to allow the part of the development that addresses Kerr Street to "read" as a three storey element in the streetscape that is compatible with the two and three storey heritage fabric, with the taller elements recessed so as to be read as behind the streetscape.
86 The Tribunal received conflicting evidence in this regard. The Council's urban design expert expressed the view that the proposed street wall needed to be reduced by one level to not visually dominate the streetscape, and to be more responsive to the single storey Victorian terraces that are to its immediate east. In his view, while the setbacks to the recessed upper levels may be adequate, the recommended reduction in the street wall would lead to a greater exposure of the upper levels. Hence, he says there would also need to be a reduction in the height of recessed upper levels reducing the overall height to no more than 6 storeys. He also recommended that the uppermost level be further recessed from the east to minimise the visual impact on the heritage streetscape of Brunswick Street.
87 The Council's Heritage expert found that the three-storey form of the street front would be acceptable, as it generally matched the form of the corner building ("The Fitz"). Although heritage policy generally calls for new development to match the lower of adjoining buildings, she was of the view that the street face relates more directly to the corner heritage scale and is anyway separated from the single storey terrace houses by a lane.
88 Ms Riddett also expressed concern with the architectural expression, finding that there are too many materials resulting in a discordant presentation, although much of her concern appears to relate to the metal cladding of the upper levels.
89 The Applicant's urban design expert was comfortable with the 3-storey form of the street wall but was concerned that the architectural expression was not sufficiently compatible with the heritage context. He proposed that the materials of the upper two storeys should be brought to ground level to "tie the building to the ground" in a more traditional fashion, and at the same time, reducing the materials palette somewhat.
90 The Applicant's Heritage expert generally agreed that the 3-storey street face would be an acceptable form but said the three levels above needed to be recessed a further 2m to allow the street wall to be more prominent within the streetscape. He also recommended that the projecting awning over level 5 should be changed to a louvered or light weight structure, and the upstands of Levels 5 and 6 changed to a glazed material to lighten the balcony expression and allow the street wall to be the prominent element of the proposal.
91 Mr Raworth accepted that the north side of Kerr Street was a particularly intact row of Victorian buildings, but in his opinion the south side is more varied and less sensitive.
92 The Applicant indicated they would accept Mr Raworth's recommendations and prepared 3D model views to illustrate the impact of these proposed changes (retaining the 7th storey). Shown below are the photomontage views of the existing conditions and the review proposal, followed by two 3D model views showing the proposal with the additional 2m setback.
93 We agree with Council that Kerr Street is a heritage environment with greater consistency and a higher proportion of significant or contributory buildings than other parts of the precinct such as to the north where recent developments are more evident. In our site visit it was particularly evident that the north side of Kerr Street presents as a very consistent form at least back to Fitzroy Street and with a largely intact if more varied heritage streetscape after that.
94 In addition, because of the relative width of Kerr Street, and the fact that heritage buildings return along each corner, we found that there is a strong sense of connection with Brunswick Street. Although the south side is more varied because the side elevation of "The Fitz" presents strongly to Kerr Street, the existing commercial building on the review site stands out as a disruptive element in an otherwise relatively intact heritage streetscape, at least until the more recent intrusion at No 70 Kerr Street. This is then followed by an individually significant building on the west side of Fitzroy Street followed by more seemingly intact one and two storey houses.
95 As a result, we cannot agree that the intrusion of 2 non-contributory buildings amounts to a "highly varied" streetscape.
96 Notwithstanding the sensitivity of this streetscape, we accept the evidence of the two heritage experts that the 3-storey form of the street wall is acceptable. We agree that the new building, which is similar in scale to that which it will replace, has a stronger relationship to the Brunswick Street corner than to the run of houses to its east.
97 However, we are not persuaded that the treatment of the façade is either sufficiently recessive or of such high architectural quality that it has the potential to be seen as future heritage that can justify its location in a sensitive heritage environment.
98 We find that the recommendations by the Applicant's experts do go some way towards addressing this concern. We think the simplification of materials tying the ground floor to the upper two floors is a positive step.
99 We also think the recommended changes by Mr Raworth to increase the setback of the upper levels and lighten the upstand and canopy treatments of the recessed upper levels will assist the lower three levels to read as a building element in its own right. These recommended changes should be incorporated into the amended plans.
100 We are concerned about the colour of the proposed brickwork which appears in the photomontage representation as much lighter than the adjoining face brickwork and in our view makes the new building quite prominent. It is interesting to note that in contrast, the existing building makes use of two brick colours that are quite similar to the polychromatic brick colours in the two single storey contributory buildings to its west.
101 We also find that the arrangement of the "bricksnap" panels away from an orthogonal relationship in the façade design of the upper two levels to be somewhat discordant. We are not persuaded that these will read as a contemporary interpretation of punched windows, as suggested by Mr Raworth.
102 We note the Applicant's submissions that the representation of the brick colours in the photomontages may not fully do justice to the finished result. It may be that a brick colour that relates to the existing streetscape may alleviate our concerns regarding the other aspect so the façade design. Hence, we encourage the Applicant to work with a heritage architect to develop the façade design including the preparation of a revised 3D representation illustrating how the new façade can be visually recessive within this sensitive heritage streetscape.
Is the visibility of the proposal from Brunswick Street acceptable?
103 The Council says the seventh level of the Kerr Street "wing" will protrude into the heritage streetscape of Brunswick Street and will negatively impact upon this relatively intact heritage streetscape.
104 They noted that the photomontage provided from Brunswick Street shows the new building projecting well above the existing contributory streetscape and a clear floor above the new development to its south.
105 They relied upon the evidence of Ms Riddett who found that the new development would dominate the heritage streetscape more so than the new development to its south, which she also viewed as excessively impacting upon the heritage streetscape. However, she agreed that the horizontal and relatively uniform nature of that development mitigated the impacts to some extent.
106 There was some dispute about the extent to which the proposed seventh level would be visible from directly adjacent to the significant façade of the corner building ("The Fitz"). Council was initially concerned that the top of the building would be visible from this location and relied upon the evidence of Mr Czarny who evaluated the visibility diagrammatically and considered that the proposed building should step back or down.
107 Subsequently the Applicant provided additional visual assessment diagrams that confirm that the seventh level would be largely, if not entirely, concealed by the parapets of "The Fitz". However, the additional 3D views prepared by the Applicants to illustrate the recommendations of Mr Raworth and Mr Sheppard show that the 7th storey would also be visible from the north east corner of the Kerr Street/ Brunswick Street intersection.
108 The Applicant relied upon the evidence of Mr Raworth who found that the extent of visibility in Brunswick Street was acceptable. This was because the additional impact would mainly fall upon the contributory building in Brunswick Street, and in his view the additional impact compared to the new building to the south was minimal.
109 He acknowledged that while the upper level would be largely concealed from directly adjacent in Brunswick Street, it would be visible from locations towards the north east side of the Kerr Street intersection, as shown by the additional views. In his view this would be acceptable as the southern side of Kerr Street is more varied.
110 We are satisfied that the upper levels of the proposal will be largely if not wholly hidden from viewing positions adjacent to the site in Brunswick Street.
111 However, we agree with the Council that the seventh level is visible to an unacceptable degree from positions to the south as indicated in the photomontage, and from the north side of the Kerr Street intersection as indicated in the later studies provided by the applicant.
112 We are concerned that the visual impact in the former location will be detrimental to the appreciation of the heritage streetscape of Brunswick Street for the following reasons:
113 Our comments are not intended as a criticism of the particular photomontage provided. The Tribunal recognises that there is always a trade-off to be made between a realistic angle of view and the need to show enough context. Indeed, that is one reason why a site inspection is generally required to fully assess a likely visual impact.
114 We are less concerned about the visual impact of the upper levels from the Kerr Street intersection. This is because we found the positions where the view would be available are quite limited, and we are satisfied that the setbacks are sufficient to allow the three storey street wall hold the attention of the viewer, with the glimpse of the upper level being too limited to dominate the Kerr Street streetscape.
115 As a result of these findings, we find that the seventh level of the Kerr Street wing must be modified to reduce its visual impact to be no more than the existing new form to the south, when viewed from the east side of Brunswick Street.
116 This suggests the seventh level should be deleted unless it can be set back from the east by sufficient an amount to not appear above the six-storey form of the new development to the south. This could result in a smaller apartment or possibly a two-level apartment by linking the space to the apartment below.
117 The proposal would provide a three-storey street wall to Fitzroy Street, like that proposed for Kerr Street. It incorporates a small retail tenancy at ground floor with a driveway and crossover along the southern boundary.
118 There is a slightly deeper recess at the ground floor in front of the retail use. It was generally agreed that this recess was appropriate to give some collection or trading out space given that Fitzroy Street is relatively narrow.
119 There was general agreement that the three-storey street wall is acceptable because Fitzroy Street has a more mixed environment and was not seen as being as sensitive with respect to heritage qualities as Kerr Street.
120 There was a suggestion by some of the Respondents that the entry to the retail could be swapped with the location of a Booster cabinet, as this would allow a better connection and passive surveillance to the residential entrance. The Applicant indicated that this should be possible.
121 We agree with this suggestion and recommend that it be adopted if there are no technical difficulties in relocating the cabinet. We note that by moving the cabinet to next to the northern boundary it may be possible to move the cabinet forward into the recess, freeing up more floor space for retail.
122 Above the street wall the proposal steps back by just under 2.5m for the 4th to 6th storeys, and then to approximately 5.3m for the 7th and upper most storey.
123 We were advised that these steps generally match the setbacks and heights of the development to the south, Fitzroy House at 71-77 Argyle Street. Fitzroy House has its main address to Argyle Street but also has a broad frontage to Fitzroy Street and has been redeveloped as a mixed use / residential apartment building that retains at least the facades of the individually significant former Arthur Engineering Co. factory at the corner of Argyle and Fitzroy Streets, with new form wrapping around the retained frontage.
124 Council says that matching the Fitzroy House development brings too much built form towards Kerr Street, leaving all transition to be achieved on the 70 Kerr Street site.
125 Ms Riddett for Council in giving heritage evidence noted that the planning scheme required new development within a heritage context to be visually recessive and to not dominate the heritage place. She was concerned that the blank north wall of the proposed development would effectively bring the existing blank wall of the Fitzroy House development closer to the Kerr Street streetscape. In her view this would lead to an unacceptable level of visual bulk.
126 Ms Riddett notes there are only two non-contributory buildings on the south side of Kerr Street within the streetscape that would be affected by the visual bulk of the Fitzroy Street wing. She does not agree that this reduces the sensitivity of the heritage streetscape to any significant extent.
127 She says the proposed setbacks, other than in respect of the rear laneway/easement, while acceptable of themselves, do little to minimise the visibility and effect of the upper levels. In elevation (TP 3.01) five levels will be visible above and behind the Kerr Street terraces (Nos. 76 - 80. 82 and 84) whereas until recently they have always been silhouetted against the skyline like the other terraces in Kerr Street.
128 This position was supported by Mr Czarny, who noted that a reduction in the height of each "step" in the Fitzroy Street wing would also improve sunlight penetration into Fitzroy Street. He says Fitzroy street is already an important pedestrian movement link that parallels busy Brunswick Street and in his view this role will only grow as the area continues to evolve.
129 The Respondents support Council's submissions. Mr Pearce represented Dr Clark who is an owner of an apartment at the top level of the Fitzroy House development. He said she was not concerned about direct impacts on her apartments but was concerned that the excessive height presented towards the Kerr Street end undermines the pedestrian qualities of the area and the heritage character. They queried why this important issue was not shown in the relevant photomontage.
130 The Respondents agreed with Mr Czarny's evidence that the level of enclosure together with the cumulative shadow impacts arising from the development on Fitzroy Street are not acceptable and can be addressed with a reduction in scale by at least 1 storey.
131 They submit Fitzroy Street is one of only two north south connections in the grid bounded by Alexandra Parade, Brunswick, Johnston and Nicholson Streets. Fitzroy Street in their submissions is a vital north south connection to/from the Johnston Street Precinct. The Coles supermarket and associated shopping in the part of Johnston Street that exists to the south brings a high level of foot-traffic to Fitzroy Street highlighting the need for sunlight protection.
132 The applicant does not agree that the north wall would visually dominate the Kerr street streetscape. They rely upon the evidence of Mr Raworth who found that the visual impacts upon the Kerr Street streetscape would be acceptable, given that there are several non-contributory elements on the south side including 70 Kerr Street. Redevelopment of this site could be expected to see a higher form of development behind the street face, which would reduce the visibility of the 6-storey north wall.
133 The Applicant disputes the extent to which Fitzroy Street is a vital pedestrian link.
134 To the extent that it is, they say the reduced form proposed by Mr Czarny would result in approximately 30 minutes additional sunlight at the equinox, which would be unlikely to impact upon pedestrian use whereas the proposed retail outlet would positively encourage such use.
135 We agree with the Council and respondents that it is unfortunate that the photo montage does not illustrate the expected visual impact of the north wall upon Kerr Street. We have had to rely upon the various diagrams provided and our site view.
136 As we have previously noted, we do not agree with the Applicant that the south side of Kerr Street lacks heritage sensitivity because of the number of non-contributory buildings. It is clearly less sensitive than the north side, however when we consider the broader length of the streetscape including the buildings to the west of Fitzroy Street we find it is a street that is at the higher level of sensitivity in this heritage overlay.
137 We have found that the existing six storey north wall of the Fitzroy House development is readily visible above the Kerr Street streetscape. We are not persuaded that the 70 Kerr Street site necessarily has the potential to develop to a height that would screen views to the new form to an acceptable degree. We take into account that 70 Kerr Street is flanked by contributory buildings to its east and by a significant heritage building on the other western corner of Fitzroy Street. These are contextual issues likely to temper development expectations on this site.
138 For these reasons we find the proposal must begin a transition towards Kerr Street to minimise the visual impacts upon Kerr Street. We agree with the Council and Respondents that this could be achieved by the reduction of one complete floor so that the north wall would reduce to five storeys, and the overall height of the Fitzroy Street "wing" reduced to six storeys above ground.
139 We are not persuaded that additional sunlight is required to Fitzroy Street to facilitate its pedestrian function. To the extent that this might be achieved by the reduction in height we require, that will be a consequential outcome unrelated to the reasons we have required a height reduction.
Is the height of the 9m "link" acceptable and is the "gap" sufficient?
140 Both the Council and the Respondent Objectors raised interrelated amenity and urban design/heritage concerns about the acceptability of the link building. We address in more detail elsewhere in this decision amenity impacts generally. In this section we focus primarily on the urban design and heritage considerations associated with the link building.
141 The Council say that the 9m "gap" between the two wings is insufficient. They say the four storeys that joins the two wings is too prominent and will loom over the heritage streetscape and present as excessive bulk from the rear yards of these dwellings.
142 Ms Riddett for Council says the development is not visually recessive and will visually dominate the heritage place. It is Ms Riddett's evidence that the four-storey link should be reduced to fall within the visual line of sight that would limit any additions to the rear of the heritage buildings addressing Kerr Street. In her opinion, this would mean the link should be reduced to no more than 3 storeys.
143 The Respondents say the gap needs to be widened to allow more light and air to the developments to the south. They say the development should have provided an open link trough to Kerr Street which would have given an improved outcome for all.
144 The Applicant disputes that the development needs to be concealed behind the parapets of the heritage houses addressing Kerr Street. They say the distance behind is enough to allow the heritage streetscape to be appreciated.
145 The Applicant maintains that there would be limited views only above the pair of single storey terraces. Mr Raworth queried if the terrace at No 84 had been modified as its floorplan on the early services plan does not match the outline. However, he acknowledged that the pair appeared to be in original condition and there is no evidence of modification. Nevertheless, he was comfortable with the degree of visibility as shown in the photomontage.
146 He says it is inevitable that new development will be visually prominent given the intended character of the area, and notes that there are several developments that are clearly visible behind lower scale streetscapes.
147 We are not persuaded that the intended character of the area presupposes that new development must be visually prominent. This is because the intended character includes the retention of significant heritage elements.
148 We have previously observed that not all parts of this Heritage Overlay are equally sensitive, and we find that the eastern end of Kerr Street represents one of the most intact heritage contexts in this heritage place.
149 We find that in this localised context where heritage is the dominant character, it is not acceptable to see the entire development as a single form that wraps around the heritage streetscape.
150 We are not persuaded that the existing terrace houses are likely to have rear additions that stand tall enough to screen the proposed four storey link. We think this is less likely for the two single storey terrace houses, which appear to this tribunal to be in a very high state of preservation with a particularly attractive street façade.
151 For these reasons, we will require the "link" to be reduced by one complete level. We think a three storey link will allow the proposed development to read as two distinct forms each addressing its own street, and will not visually dominate either the streetscape or the private open spaces of the heritage buildings.
152 In relation to the proposal's amenity impacts, the Council and the respondent objectors submit that the proposal's amenity impacts are unacceptable, having regard to the review site's location outside an activity centre, its inclusion in the MUZ and other applicable planning scheme provisions that, in their submission temper development expectations for this site.
153 They submit that the amenity of the dwellings at 76-84 Kerr Street will be adversely affected by a combination of excessive visual bulk and overlooking into the secluded private space of those dwellings.
154 They also submit that the proposal has unacceptable daylighting, overshadowing and restriction of outlook impacts on the future residents of the Fitzroy House development to the south.
155 It is their submission that the Fitzroy House development has been designed to respect the review site's equitable development rights and to protect the reasonable amenity expectations of its future residents. They submit that the current proposal has not be designed in a reciprocal manner, leading to the identified adverse impacts.
The approach to the consideration of amenity impacts.
156 The assessment of amenity impacts must always be contextual. That is, when determining whether the impacts of a proposal are acceptable or not, the assessment must have regard to a range of factors, including the zoning of the land, and the policy outcomes encouraged for the site and the wider locality by the planning scheme's policy framework.
157 This is not to say of course that amenity impacts are not an important consideration, but the assessment of those impact must have regard to the matters outlined above.
158 The amenity impacts of an apartment development are also to be assessed against Clause 58 of the planning scheme[15]. This clause in effect calls for a contextual analysis to be undertaken in the design of a proposal, and in the assessment of the proposal's amenity impacts.
159 For example, the objective of Clause 58.04 Amenity Impacts encourages new buildings to be setback from a boundary to respond to the existing urban context, to limit views into habitable room windows and private open space. Other objectives relate to the amenity of residents of new developments.
160 Standard D14 of Clause 58.04 is similarly expressed in 'performance oriented' terms rather than specifying quantifiable standards. Notably, overshadowing impacts to existing adjoining private open space areas has been excluded as a relevant consideration in Clause 58 assessments.
161 The task confronting us therefore is to arrive at a decision about whether the amenity impacts generated by the proposal fall within the realm of acceptable outcomes, notwithstanding that some of the impacts may in some cases be quite significant. We emphasise that the planning scheme does not seek to protect existing levels of amenity currently enjoyed by residents, but rather to ensure that residents continue to receive acceptable levels of amenity.
162 We address our task by focussing on the following aspects of the proposal and its amenity impacts:
163 We are broadly satisfied that, subject to some relatively minor changes, amenity impacts have been contained to acceptable levels. We note that the reduction in the height of the link building discussed above, will have a consequential beneficial amenity impact for the Kerr Street terrace houses. We are satisfied that this change is sufficient to achieve an acceptable amenity impact in relation to those properties.
164 With respect to overlooking, the Council's concerns are in part based on what it considers lack of clarity in the amended plans about how balconies and habitable room windows are treated to address overlooking concerns. In broad terms the Council submits that because of the lack about the overlooking treatments, views may be possible from parts of the proposal to the Kerr Street dwellings.
165 It is also submitted that the 'gap' between the two wings is not sufficient to mitigate the visual bulk of the proposal viewed from the rear yards of the Kerr Street dwellings.
166 In relation to overlooking, Clause 58 of the planning scheme seeks to limit views into habitable room windows and private open space of new and existing dwellings. While standard D14 of Clause 58 discourages the use of screening to reduce views, screening is a legitimate technique to limit views, provided they are used judiciously rather than indiscriminately, and in line with a careful analysis to determine their utility.
167 This proposal's use of screening is acceptable and achieves the relevant Clause 58 objective of limiting views. We note Mr Twite has recommended additional measures to address downward views toward the Kerr Street dwellings. We agree with Mr Twite's recommendations. The additional measures can be imposed by either permit condition and/or they can be shown in amended plans.
168 The visual bulk impacts have also been contained to an acceptable level.
169 The proposal has been setback sufficiently to ensure the neighbouring dwellings have an outlook that creates a reasonable connection to the external environment. We acknowledge that the outlook for existing residents from the rear open space will be significantly altered, but in the context of this site, this impact is acceptable.
170 The creation of a meaningful gap at level 4 and above between the proposal's east and west wings aligns with the rear secluded open spaces of the Kerr Street dwellings. Having regard to our findings that the link building should be lowered by one level to achieve an acceptable built form and heritage response, we are satisfied that the visual bulk impacts are acceptable.
171 Our conclusion in this respect is also informed by the nature of the interface with the rear of the Kerr Street dwellings. The dwellings are separated from the review site by the easement/access lane. The rear open spaces are also constrained in their dimensions and their visual exposure to the review site is therefore limited.
172 On this site, the proposal's design response to its sensitive interfaces with the Kerr Street dwellings has been successfully managed to an acceptable degree.
173 Fitzroy House is located to the south of the review site and occupies the site on the north - east corner of Argyle Street and Fitzroy Street.
174 The Fitzroy House development is currently under construction, and at the time of our inspection appears to be nearing completion.
175 It comprises a 7 storey residential building above an office with frontage to Argyle Street and Fitzroy Street corner. This development retains the heritage building at the frontage to Argyle Street and Fitzroy Street and has a 3 storey podium along Fitzroy Street. This development will be constructed to the southern boundary of the site for 6 storeys except for a 3m wide light court and a 4.5m setback at the rear. The top storey of this development will be 4.2m from the common boundary with the review site.
176 The Respondents raised a concern that the repetition of the lightwell where the proposal adjoins the north wall of the Fitzroy House development would result in unacceptable daylight conditions particularly in the lowest units in this development, where second and third bedroom windows rely on light from this direction.
177 They also query why the proposed development biases its lightcourt towards the west, since the windows from the bedrooms face either east or north and thus would face a blank wall to their east.
178 The Respondent were further concerned that the proposed development with its continuous form across the site would place the lowest apartments in extensive shadowing.
179 The Applicant relied upon the evidence of Mr Talacko who prepared an ESD evaluation of the proposed development, and also modelled the likely daylight outcomes in the relevant bedrooms in the Fitzroy House development.
180 He agreed that the 3m x 3m lightwell provided in the Fitzroy House development was inadequate to achieve satisfactory daylight levels if the lightwell was matched as might normally be expected.
181 In his assessment the wider lightwell provided by the proposal would improve the situation compared to duplication of the lightwell dimensions but not necessarily sufficiently to meet appropriate standards for the Fitzroy House apartments. To assist, he recommends that all wall surfaces in the new lightwell be finished in a light colour; and in his view the location of the solid wall was appropriate as it would ensure the maximum light reflection available to the neighbouring windows.
182 In his assessment, the proposed lightwell is appropriately located such that the eastern wall will diffuse daylight to the benefit of the existing apartments in Fitzroy House, and there would be no benefit in pushing the lightcourt eastwards.
183 He was confident that there would be sufficient daylight in these rooms to provide for practical activities such as moving around safely.
184 He agreed that the development would cause additional shadows affecting the lowest units in Fitzroy House. In his opinion this was acceptable because only one unit is impacted and given its location he said additional shadowing was always likely. The applicant provided additional shadow analysis by Mr Sheppard to show that the additional shading was limited to only parts of the ground floor unit; a reduction in height of the link building would improve the outcome but only to a marginal degree.
185 We accept the evidence of Mr Talacko. We note that it would normally be expected that a developer could match the size of a lightwell and this could well have been the case if the proposed development did not need to use the lightwell for its own daylighting purposes.
186 In this case, the proposal provides a lightwell that is both deeper and wider than the existing opening and will ensure all finished surfaces are a light colour as opposed to a natural concrete finish which is much less reflective. Subject to a condition ensuring the surfaces are a light colour, we are satisfied that the proposal is acceptable in this regard.
187 While Clause 58 does not reference overshadowing as an impact to be assessed, we have nevertheless been assisted by the shadow analysis undertaken by Mr Sheppard which demonstrates that the majority of the affected terraces in Fitzroy House will have access to sunlight from 9am through to 12pm, and all but one between 11am and 12pm. We agree with Mr Sheppard's conclusion that having regard to the review site's strategic context, the level of overshadowing is commensurate with a reasonable level of residential amenity.
188 Nevertheless, we note that the reduction in the height of both the west wing and the link building by one storey which we require for other reasons will have a consequential benefit for this unit by improving its access to direct sun even if only by a marginal amount.
Does the proposal provide acceptable levels of internal amenity?
189 The Council submits that the proposal fails to achieve several of the objectives and standards of Clause 58 as they relate to internal amenity considerations. The Council acknowledges that many of the concerns it had in about the original application plans have been addressed by the amended plans. The Council continues to raise concerns about the following matters:
190 In addition, the Council, and objectors express concern about the adequacy of the proposal's wind impacts. They submit that on the basis of the available information they cannot be satisfied that the development will result in acceptable wind impacts with the both the development and the public realm.
191 The primary dispute in relation to the proposal's wind impacts focus on the adoption by the applicant of 'walking criteria' rather than 'sitting criteria' especially in relation to the balconies.
192 In summary we are satisfied that the proposal provides an acceptable level of internal amenity for future residents. Any shortcomings are capable of being addressed by way of permit conditions or otherwise incorporated into amended plans.
193 Our findings about the proposal's acceptability are in large part informed by our overall assessment of the proposal which provides a range of two and three bedroom apartments all with relatively generous internal dimensions with direct access to balconies. All balconies and windows have primary outlooks to the north or west while all windows facing south (including into light courts) are second windows, bedroom windows or non-habitable room windows. All habitable rooms have a window in an external wall of the building, except in some study areas which can be provided. The apartments have floor to ceiling heights of 2.7m and all single aspect apartments have a relatively generous depth of 8.43m.
194 Future residents of the apartments will enjoy the benefits that flow from the review site's proximity to the wide range of services and facilities available in this locality.
195 Our reasons for reaching our conclusion are also informed by our assessment of the detailed aspects of the proposed design which are summarised below:
196 With respect to noise related matters, the proposal is subject to the application of Clause 53.06 of the planning scheme because the residential use is within 50 m of a live music entertainment venue (The Evelyn Hotel).
197 It was established at the hearing that the planning permit for the The Fitz, which is located on the opposite side of the lane/easement to the east, prohibits live music and restricts music emissions to background music only.
198 Mr Tardio undertook noise modelling in relation to both The Evelyn and The Fitz, and recommended a series of noise mitigating devices be included in the plans, including balcony screening, façade, and glazing treatments to achieve compliance with the requirements of Clause 53.06.
199 Mr Tardio also recommended compliance with other relevant policies (City of Yarra Guideline - Managing Noise in Urban Development for patron noise and plant noise). Conditions restricting the use of the proposed food and drink premises in the proposal are also recommended.
200 Subject to the incorporation of Mr Tardio's recommendations, we are satisfied that the proposal is acceptable. Given the proximity of the Evelyn Hotel and (potentially) The Fitz we think it would be preferable that post construction analysis be undertaken to determine the success of the proposed acoustic attenuation. This is a matter that can be addressed by a permit condition.
201 As we stated previously, and for the reasons previously articulated, we have decided to provide the applicant with the opportunity to address the issues raised by us, by preparing amended plans.
202 The following is a summary of the changes identified in these reasons:
203 We appreciate that the changes outlined above are likely to necessitate other unforeseen and consequential changes to the design. We emphasise however that any amended plans prepared in response to this Order must confine themselves to the changes we have identified (and associated consequential changes). The opportunity we have proved to the applicant must not be regarded as an opportunity to pursue further unspecified changes beyond those deriving from these Reasons.
204 The parties will be provided with the opportunity to comment on any amended plans. Following the receipt of any further submissions on the amended plans, we will proceed to determine this application.
[1] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 states a failure to make a decision is deemed to be a decision to refuse to make the decision.
[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.
[3] Adopted by Council on 4 September 2018.
[4] Clauses 11.01-1R, 11.02-1S, 21.04-1, 21.04-2,
[5] Clauses Clause 15.01-1S, 15.01-4S, 15.01-4R, 15.01-5S, 15.03-1S, 15.01-5S, 21.08-7.
[8] Clauses 15.01-1R, 15.01-2S, 21.05-2, 21.05-3.
[9] Clause 15.03-1S, 21.05-1, 21.05-1, 22.02.
[11] The MUZ purpose To facilitate the use, development and redevelopment of land in accordance with the objectives specified in a schedule to this zone is not applicable because there are no objectives specified in a Schedule to the zone.
[12] An Environmental Audit Overlay (EAO) and a Development Contributions Plan Overlay (DCPO) also apply to the review site.
[13] Department of Environment Land Water and Planning website.
[14] A seriously entertained planning proposal is typically regarded as a planning scheme amendment that has progressed through an exhibition process, been adopted by the relevant planning authority and submitted to the Minister for Planning for approval. Section 84B of the Act states that the Tribunal must (where appropriate) have regard to any amendment to a planning scheme which has been adopted by the planning authority but not, as at the date on which the application for review is determined, approved by the Minister or the planning authority.
[15] Clause 58 Apartment Developments Yarra Planning Scheme.
[16] Mr Talacko's evidence about daylight penetration is based on the application of a 'functionality test' which provides that daylight access should be sufficient to enable the use of specific types of rooms for their particular purpose during daylight hours. This approach has been adopted by the Tribunal as a reasonable basis for assessing the acceptability of daylight penetration (refer to G3 Projects Pty Ltd v Yarra CC (Red Dot) [2016] VCAT 373).
Hengyi (88 Kerr) JV Pty Ltd
Yarra CC [2021] VCAT 1093