The decision of the Responsible Authority is varied. In permit application

Tp-2007-706 a permit is granted and directed to be issued for the land at

16-18 Agnes Street, Jolimont. The permit allows demolition of the existing dwelling and construction of a residential apartment building comprising dwellings and associated ground level car parking in accordance with the endorsed plans and subject to the conditions contained in the

Notice of Decision to Grant a Permit Tp-2007-706 issued by the Responsible Authority on date modified by the replacement of conditions 1(a) and 1(b) with the following:

(a) the provisions at grade or wheelchair access to the entry foyer from the public realm;

(b) the activation of the Agnes Street and Sophie Lane facades.

Mr Christopher Townshend, Barrister instructed by Best Hooper Solicitors.

1. This proceeding relates to applications in respect of the decision of the responsible authority to grant a permit for demolition of the existing dwelling and construction of a 6 level residential apartment building comprising dwellings and associated ground level car parking at

Objectors' application, P291/2008, to review the decision of the responsible authority to grant a permit is made on the following grounds:

Heritage impact on identification places and the precinct.

Visual intrusion of the proposed development on the buildings, streetscape and precinct of Jolimont.

Height in excess of the 9 metre discretionary height control and the adjacent buildings in Agnes Street.

Incompatibility with the scale and character of buildings in the area.

Amenity impacts on neighbouring properties, specifically relating to:

• Visual bulk;
• Impact on access to natural light;
• Provision of no visitor car parking; and
• Construction disruptions.

The permit applicants application, P453/2008, to review proposed conditions 1(a) & 1(b) is made on the following ground:

Condition 1(a) which requires the deletion of one primary floor level and condition 1(b) which requires modifications to the ground floor level to reduce the building height by at least an additional 500mm where possible, are not justified as the scale and form of the proposed development is an appropriate response to the site context and policy.

1. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal.
2. The subject land is a small regular lot located on the east side of Agnes Street approximately 31 metres north of Jolimont Street in Jolimont. The land is occupied by an ungraded two storey dwelling located towards the rear of the land.
3. The land has a frontage to Agnes Street of approximately 10 metres, and a site area of approximately 244 square metres. On three sides, the land abuts roadways. To the east is Agnes Street itself, to the north is Sophie Lane a 4.5 metre wide bluestone laneway, while to the south is an unnamed 3.2 metre wide bluestone laneway.
4. The east side of Agnes Street contains a mixture of commercial and residential buildings developed during the late 20th century. On the west side of Agnes Street there is a reasonably coherent group of much earlier 19th century buildings.
5. The following extract from Ms Dimity Read's evidence statement provides a usefully succinct description of the locality:

While Jolimont was once a curious little pocket of Victorian houses tucked away and largely out of sight, it has slowly became an edge condition to Central Melbourne with a number of businesses located in large buildings throughout. However, the charm of it being a secret place remains, enhanced by the five minute walk to Spring Street or across Yarra Park to the MCG.

1. The proposal is to develop the land with a small six storey building occupying the entire site. The building is to accommodate four apartments above a ground level which is to contain a glazed foyer accessed from Agnes Street, and four two car garages accessed from Sophie Lane. Dwellings 1 to 3 each occupy a single floor, the first floor through to the third floor. Dwelling 4 occupies the fourth floor and a somewhat recessed fifth floor.
2. The subject land falls within the:
   • Business 5 Zone;
   • Heritage Overlay (HO2 - East Melbourne and Jolimont precinct);
   • Design & Development Overlay (DDO22 - Yarra Park Area, Area 11)
3. A permit is required for the demolition of the existing buildings under the Heritage Overlay, and a permit is required for the proposed development under the zone provisions, and both of the overlay provisions. The permission required under the Business 5 zone, is exempt from notice and review rights.
4. At the conclusion of the hearing the Tribunal gave oral reasons for its decision to vary the decision of the responsible authority and direct the grant of a permit without conditions requiring a reduction in the height of the building. A summary of the Tribunal's reasons are set out below.
5. It was clearly the opinion of council's urban designers, and of the expert witnesses called in support of the application at the hearing, that the proposed building was a high quality example of contemporary architecture by a well regarded firm of architects Jackson Clements Burrows. I agree with this assessment of the design. In my opinion those aspects of planning policy directed towards the achievement of high quality architecture and urban design are achieved by the current proposal.
6. The proposal is for the development of a moderately tall building on a very small site. The slenderness of the resulting building, Mr Biles referred to it as its aspect ratio, is a relatively important aspects of its architectural expression. Therefore, while I agree that a shorter building could result in a satisfactory outcome, the importance of the building's slenderness to the achievement of a better than satisfactory outcome should not be disregarded. I note that within central Melbourne there are a number of examples of very beautiful narrow tall buildings, jammed between much larger buildings, which demonstrate that the potential attractiveness of buildings with a slender principal façade. Perhaps a more three dimensional example is Woy Woy by Geoffrey Mewton of Mewton Grounds on Marine Parade in Elwood.
7. The subject land is an isolated site set within a group of relatively nondescript late 20th century buildings ranging in height from 3 to 5 levels. It is this particular characteristic of the immediate environs of the subject land which lead council to decide that a building substantially taller than the discretionary height limit set out within the DDO, and without any particular relationship to the architecture or scale of 19th century buildings within the heritage precinct was an acceptable planning outcome. I agree that the site characteristics support the conclusion reached by council, the issue is whether or not the council's decision to reduce the height of the proposed building by one storey can be justified.
8. The objectors on the other hand argued that the DDO height limit of 9 metres should inform the basic scale of the building, and that any higher elements should be recessive. I do not think that this approach recognises the opportunity created by the particular characteristics of the site.
9. The council's approach contemplates a building which is at least twice as high as the DDO discretionary height limit. I accept this approach but in my view this approach renders the specific height limit irrelevant. The issue to be resolved is does the building respond appropriately to the design objectives of the DDO, in particular is it consistent with the character and scale of the area.
10. The council's approach is to reduce the height of the building so that at its frontage it is only approximately one storey higher than the apartments at 22 Argyle Street and so its overall height is approximately one storey less than that of the HIA building to the east.
11. It is interesting to consider how language is used to describe the way in which new buildings should respond to the scale of buildings in its immediate context ie:
    • the new building should be recessive,
    • the new building should be respectful,
    • the new building should be compatible,
    • the new building should respond to the need for significant change.

The words or phrases, recessive, respectful, compatible, or significant change to my mind represent a continuum in the range of possible responses to context. I think that the council's response is closer to the recessive or respectful end of this continuum, than it is to the compatible or significant change end.

1. My observations in relation to the council's approach are:
   • The approach is not required by the DDO provisions, a compatible building is not one which sits within the range of heights in its context, are somewhat taller building may be compatible.
   • The caution of this approach to what could be regarded as being compatible is not really an appropriate response to metropolitan policy and the emerging consequences of metropolitan growth.
   • I prefer the "Dimity Read" approach. She asked what are the benefits which arise from reducing the height of the building. In my view there are no significant benefits.

The subject land is currently occupied by a relatively small two storey dwelling located towards the rear of the land. A proposal to develop a sixth level building occupying the entire site is undoubtedly a radical change to the lands existing condition. There is a temptation to moderate change to increase the acceptability of change. To a degree, I suspect that this influenced council's decision.

1. Having concluded that the proposed building is acceptable both from the perspective of the design and development overlay, and the heritage overlay, I do not think that it is necessary or appropriate to reduce the height of the building, either by deleting a floor as proposed by the Responsible Authority, or by reducing floor to ceiling height or other like measures.
2. Turning now to more detailed considerations I make the following observations:
   • There is an existing apartment building to the north of the proposed building at 22 Agnes Street. Privacy was a issue of concern to the objectors residing in this building. Except for the window and deck at the north west corner of the building the distance between habitable room windows is slightly greater than 9 metres[1], although there are "ground level" courtyards within this separation distance. The proposed design of the building incorporates vertical metal louvers, in part as a privacy screen, in part as a shade device, and in part as an element in the architectural finish of the building itself. These measures, and the highly urban character of the locality, leads me to the conclusion that no further measures are required from a privacy perspective.
   • Planning policy and decision guidelines refer to the desirability of active frontages. Ms Hansen for the objectors criticised the proposed design response. Ultimately I am satisfied that the measures agreed between the architects and council's urban designers are a reasonable approach to this issue in the context of a residential building in what is essentially a residential street.
   • At present there is a flight of stairs leading to the glazed foyer at ground floor level. There was discussion about the desirability of their being ramp access to this space. During the course of the hearing I was advised that the applicants agreed that there were a number of approaches to resolving the issue of at grade or wheelchair access. In the context where there are practical possibilities of dealing with this issue, I think it is desirable that the design provide for at grade or wheelchair access from the public realm.

[1] There are small balconies associated with north facing windows in the proposed development, but these balconies are more architectural features than useable spaces and I do not think have any practical implications in terms of privacy,