Icon Developments Australia Pty Ltd v Stonnington CC [2009] VCAT 2574

Icon Developments Australia Pty Ltd v Stonnington CC [2009] VCAT 2574 - VCAT 2009 case summary — Zoe

[8]

The FHP policy is based upon the Forrest Hill Structure Plan 2005 (a reference document in the Planning Scheme). Mr Connor placed emphasis upon the content and illustrations of the Structure Plan in explaining the Council's concerns, but we have not given this document much weight in our considerations of the planning merits of this case. The reasons why are twofold:
- Firstly, it is a reference document in the Planning Scheme, which means it provides background information only and does not carry the same weight as the Planning Scheme provisions or a document that is incorporated into the Planning Scheme[2]; and
- Secondly, cl 21.06 of the MSS states that all relevant material from this structure plan (amongst others) has been included in the Planning Scheme, so the structure plan should be used for "background research only".
The FHP policy includes many objectives about supporting intensive development that is innovative and achieves design excellence. Having regard to the particular concerns of the Council and Mr Taraborrelli with this proposal, the pertinent objectives of this policy are:
- To ensure new development contributes to a high quality, safe and distinctive public realm with an emphasis on walkability, active street frontages, sunlight access, create of new public and private spaces, a new east west link and enhanced access to the rail and tram network.
- To encourage site amalgamation and intensive development on large sites, while ensuring the design of buildings achieve a fine grain rhythm at street level.
The policy seeks an urban structure and character that has:
- A hard street edge with a podium scale of about 12 metres;
- A new character based on a built form typology of podiums being to the street edge with tower elements set back to maintain sunlight access and sky views;
- An encouragement of mid-rise buildings along Claremont Street; and
- Building facades that avoid extensive expanses of blank glass or solid wall.
DDO8 contains similar general design objectives such as:
- To avoid unreasonable visual bulk of new development when viewed from surrounding areas by ensuring appropriate scale, form and articulation.
- To encourage site amalgamation and intensive development on large sites, while ensuring the design of buildings achieve a fine grain rhythm at street level.
- To reduce wind turbulence at ground or podium level through using stepped building forms and articulation of the building mass.
- To incorporate a continuous street wall that will create enclosure, preserve sunlight penetration to the street and avoid loss of sky views.
- To provide tall, slender building forms rather than bulky, monolithic buildings in order to minimise visual bulk.
DDO8 also contains specific preferred character outcomes for each precinct of Forrest Hill including Claremont Street, together with Design Objectives and Design Standards for each precinct.

[10]

The Council is satisfied that:
- The nominated preferred character sought for Claremont Street in DDO8 is met by this proposal;
- The Claremont Street design standards for a street wall parapet, a preferred building height of 50 metres and an active ground level frontage are met by this proposal; and
- The first two Claremont Street design objectives are met.
However, the Council considers the remaining two design objectives about building across the full width of a lot (boundary to boundary) and encouraging well designed human scale development are not met because it is not the intention of the FHP policy or DDO8 for small lots such as this to be built across, from side boundary to side boundary. Mr Connor submitted such an outcome undermines the benefits derived from podium/tower design strategy of the policy and DDO8 by:
- Loss of sky views from street level as there would be no separation between towers;
- Overshadowing at street level;
- Creation of a visual building bulk; and
- Potential impact upon future development of surrounding properties due to the close proximity of apartments and balconies.
Mr Connor submitted this site should be amalgamated with others as the Council's desire for site amalgamation, particularly of small sites such as this, is clearly articulated in both the FHP policy and DDO8. Whilst we acknowledge the policy and DDO8 encourage site amalgamation, there is no suggestion by either State or local government that it will assist to ensure this occurs, i.e. through site acquisition or other incentives. Further, we agree with Mr Gobbo that the planning controls do not require site amalgamation as a prerequisite to development. Mr Connor acknowledged that no development on this and other small sites would be a poor outcome[3] having regard to the clear policy intent for increased development in this precinct. Hence, we conclude that site amalgamation is not a necessity. This leaves us with the question as to whether this proposal will undermine the benefits Mr Connor says are derived from the podium/tower design strategy.

[15]

Mr Connor submitted building boundary to boundary would impact upon the development potential of adjoining lots as they may need to be set back from this site in order to create appropriate separation and privacy between buildings. We do not agree with this concern because this proposal has been cleverly designed to orient all apartments to the east (over Claremont Street) and the west (over the rear laneway). There are light courts in the centre of the building that provide light and ventilation into the rear of some of the apartments, and this opportunity will remain even if buildings are built alongside this site.
Mr Connor expressed concern that buildings built boundary to boundary will create a wall of tall buildings that is not in accordance with the intent of the FHP policy or DDO8. What is sought here is an intense area of development and we are cognisant of the fact that the Amendment C58 Panel were specifically encouraging of 'design excellence' outcomes[4] with performance based objectives and design criteria (rather than prescriptive building heights and setbacks to create 'wedding cakes'). The objectives of the FHP policy and DDO8 seek innovative and site responsive design solutions. We think this design creates such a solution whilst maximising its development potential without impacting upon the development potential of adjoining properties.
Mr Taraborrelli expressed concern that balconies built to the boundary at level 4 and rear setbacks of the balconies and apartments at levels 5-14 of between 2 and 4.7 metres would limit the development potential of his property in Yarra Street because of direct overlooking.
The rear laneway is 3.3 metres wide, and this creates a combined setback between the proposed balconies and the Yarra Street properties of 5.3 to 8 metres. Consideration of the weight to be given to the issue of direct overlooking between buildings needs to have regard to the fact this is an area where intense development is expected. If Mr Taraborrelli was to design a building with balconies set back similar distances, the separation between balconies would be in the order of 7.3 to 12.7 metres[5]. Further, the separation between the apartments themselves would be even greater. We are of the view separation distances of this order will maintain a reasonable level of privacy between apartments and between the balconies of apartments. So, we are not persuaded the development potential of Mr Taraborrelli's property is detrimentally affected by this proposal.

[17]

There was a detailed discussion about the draft permit conditions and we do not intend to provide detailed findings on each condition. However, there were certain matters raised that we do wish to comment on.
Mr Gobbo submitted a wind analysis, landscape plan and parking management plan should be done prior to the commencement of any building and works above ground level. We disagree in regard to the wind analysis and landscaping as there may be design issues that require resolution and, as such, they should be completed in association with the approval of the plans of the development (condition 1).
The Council's requirement for a legal agreement for a monetary development contribution and for works to be done within Claremont Street is not compliant with s 62(5) & (6) of the Planning and Environment Act 1987 and so we have deleted it. We suggest that if Council wishes to obtain developer contributions in this precinct, it should seek to introduce a Development Contributions Plan Overlay into the Planning Scheme or a introduce a special charge scheme.
We do not support the conditions by Council and the Department of Transport for a Green Travel Plan. We note Cardno Grogan Richards submitted one with the application, but we agree with the findings of Member Keaney[7] that whilst the intent is good the conditions fail every one of the accepted tests of the validity of a permit condition being relevance, reasonableness and certainty. We are not persuaded such conditions can be enforced, particularly for a residential land use that requires no planning permission. In regard to the intent of green travel, we note the proposed development has limited car parking, it provides (unusually) scooter parking, it has ample bicycle parking and it also provides two share car spaces. When combined with the existing limited available of on-street parking and the easy access to public transport, we find this development ticks all the right (green) boxes.
Mr Gobbo submitted the environmental audit should be required prior to the pouring of the concrete slab for the basement. However, we agree with the findings of Senior Member Rickards[8] that there remains a requirement under cl 45.03-1 of the Environmental Audit Overlay, which affects this site. This requirement requires either a certificate or statement of environmental audit before the construction or carrying out of buildings and works in association with a sensitive use (including residential use) commences. Therefore, we have altered the wording of the condition to accord with cl 45.03-1.

[21]

Before the development starts, three (3) copies of amended plans, drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the VCAT substituted plans but modified to show:
- (a) A schedule of building materials, finishes and colours for all external parts of the building.
- (b) Cross sections of the central light court to show screening and ventilation generally in accordance with TP17 Rev A tabled at the VCAT hearing.
- (c) Rainwater tanks as per the Sustainability Statement (ark resources, 6 August 2009).
- (d) Confirmation the building is wholly contained by the title boundary.
- (e) A canopy over the footpath adjacent to the entry stair if possible, which is at least 2.7 metres above the footpath.
- (f) Lighting of the building entry and bicycle parking area.
- (g) Vehicular ingress from Claremont Street only and egress to the ROW only.
- (h) Manufacturing specifications for the car lift and car stackers.
- (i) The vehicular crossing detailed and designed in accordance with Council's Vehicle Crossing Policy.
- (j) Bicycle spaces, including access points and directional signage designed and dimensioned in accordance with Australian Standard 2890.1993, Bicycle Australia Standards, or to the satisfaction of the Responsible Authority.
- (k) An entry to the fire stair from level 4 generally in accordance with the entry shown on TP07 Rev E tabled at the VCAT hearing.
- (l) Privacy screens to apartments 4.1, 4.2 and 4.3 generally in accordance with TP10 Rev F, TP12 Rev D, TP13 Rev B and TP14 Rev D tabled at the VCAT hearing.
- (m) Any consequential changes required as a result of submitting documents to satisfy conditions 3, 5 and 7.
The development allowed by this permit and shown on the endorsed plans must not be amended without the written consent of the Responsible Authority.
Before the development starts, a Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan must be generally in accordance with the Waste Management Plan prepared by Leigh Design dated 11 August 2009 as modified to accommodate the substituted plans. When approved, the plan will be endorsed and will then form part of the permit and must be complied with at all times. Waste collection from the development must be in accordance with the plan, to the satisfaction of the Responsible Authority.
The Sustainability Statement (by ark resources, dated 6 August 2009 or as later amended to the satisfaction of the Responsible Authority) shall be endorsed and form part of this permit. All details contained within the Sustainability Statement must be complied with at all times.
Before the development starts, a suitably qualified person must undertake a comprehensive wind tunnel test of the entire development, and include an assessment on the conditions of the Roof Terrace. A Wind Climate Assessment Report must be provided for the written endorsement of the Responsible Authority. Any modifications required to the development in order to ensure acceptable wind conditions must be submitted to and approved by the Responsible Authority as part of the plans for endorsement. The design details of any wind mitigation works must receive the endorsement of the owner/applicant's wind climate experts, preferencing the use of architectural features and planting to resolve any issued identified.
Prior to the commencement of any buildings and works above ground level, a Parking Management Plan is to be submitted to the satisfaction of the Responsible Authority that must:
- (a) Provide that all car spaces (except for the "car share" spaces) be apportioned to and used by occupiers of the building and that not more than one car parking space be assigned to any single dwelling; and
- (b) Details of access controls such as boom gates securing access to the car park.
Before the development starts, a landscape plan to be prepared by a landscape architect or suitably qualified or experienced landscape designer, and submitted to and approved by the Responsible Authority. When approved, the landscape plan will be endorsed and will then form part of the permit. The landscape plan must be drawn to scale with dimensions and three copies must be provided. The landscape plan must be in generally in accordance with the plan prepared by CDA Design Group Pty Ltd (July 2009) but modified to show:
- (a) Size of plants at time of planting to be included in Plant Schedule. Trees should be at least 2.5 metres tall.
- (b) Planting densities or plant numbers to be included in Plant Schedule or on Plan.
- (c) Information on irrigation and drainage to be included on Plan.
- (d) Depth of Roof Level planters containing trees must be at least 750mm.
- (e) Depth of Roof Level planters containing shrubs, grasses and groundcovers must be at least 450mm.
Before the construction or carrying out of buildings and works in association with the proposed residential use commences, either:
- (a) A certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970, or
- (b) An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for the sensitive use.
Before the occupation of the building the Environmental Audit must be complied with to the satisfaction of the Responsible Authority. Written confirmation of compliance must be provided by a suitably qualified environmental professional or other suitable person acceptable to the responsible authority. In addition, sign off must be in accordance with any requirements in the Statement/Certificate conditions regarding verification of works.
Before the occupation of the building, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority. Landscaping must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
Before the occupation of the building, areas set aside for parked vehicles, scooters, bicycles and access lanes as shown on the endorsed plans must be:
- (a) Constructed to the satisfaction of the Responsible Authority.
- (b) Properly formed to such levels that they can be used in accordance with the plans.
- (c) Drained and maintained to the satisfaction of the Responsible Authority.
- (d) Line marked to indicate each car space, scooter, bicycle space (where appropriate) and all access lanes to the satisfaction of the Responsible Authority.
- (e) Made available for there intended purposes at all times.
Before the occupation of the building all redundant crossovers must be removed and reinstated with kerb, channel and footpath to the satisfaction of the Responsible Authority
All plant and equipment (including air-conditioning units) shall be located or screened so as to not to be visible from any of the surrounding footpaths and shall be baffled so as to minimise the emission of unreasonable noise to the environment in accordance with Section 48A of the Environment Protection Act 1970 to the satisfaction of the Responsible Authority. Ventilation systems must be designed and installed in accordance with relevant Australian Standards.
External lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the Responsible Authority.
All walls on or facing an exposed boundary of the site must be cleaned and finished to the satisfaction of the Responsible Authority.
To minimise environmental problems associated with sediment run-off, any clearing or construction activity associated with development in the subject land, shall be carried out in accordance with the requirements of the Environment Protection Authority.
All wastes generated from demolition, site preparation and construction stages shall be disposed appropriately in accordance with the requirements of the Environment Protection Authority.
The level of the footpath on Claremont Street and right-of-way levels at the rear of the site must not be lowered or altered in any way for any reason.
The drainage of the site shall be to the requirements of the Responsible Authority and the discharge of water from the land affected by this permit shall be controlled around its limits to prevent any discharge onto any adjacent property or street other than by means of an underground pipe discharged to a point nominated to the satisfaction of the Responsible Authority.
All services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
The grated side-entry drainage pit within the proposed crossing is to be relocated (and not simply modified) clear of the crossing.
Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done at the cost of the owner and subject to the relevant authority's consent.
Equipment, services, architectural features or structures of any kind, including telecommunication facilities, other than those shown on the endorsed plans must not be located above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority.

At a glance

Court

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Before

Source

Judgment (31 paragraphs)

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Legislation Cited (2)

Cases Cited (1)

Icon Developments Australia Pty Ltd v Stonnington CC [2009] VCAT 2574 (2 December 2009)