No. 68-72A Acland Street & No. 4 Havelock Street, St Kilda

Innominata Pty Ltd v Port Phillip CC [2008] VCAT 1085

1. Leave is granted to substitute for the application plans, plan numbers SK00 to SK15 inclusive, all dated 04/04/08, prepared by ARM Architecture Urban Design Masterplanning.
2. In permit application no. 516/2007, the decision of the Responsible Authority is set aside. A permit is granted and is to be issued. The permit relates to the land at No. 68-72A Acland Street & No. 4 Havelock Street, St Kilda. The permit will allow:
   • demolition of the existing buildings;
   • construction of a four storey building plus a basement;
   • a reduction in car parking;

1. The permit is subject to the conditions contained in Appendix 1 to these reasons.

Mr J Gobbo QC with Mr C Townshend of counsel. They called expert evidence from:

• Mr A Hutson, architect.
• Mr B Raworth, conservation consultant.
• Mr J Govenlock, town planner.
• Mr J Walsh, traffic engineer.
• Mr P Lovell, heritage architect.

Mr P Beard, Town Planner. He called expert evidence from Mr D Islip, heritage architect and urban designer.

1. "The Face" is the name of a four storey mixed use development proposed on a prominent site at the intersection of Acland, Havelock and Carlisle Streets, St Kilda. That name derives from the building's façade that is inspired by the works of artist Salvador Dali and draws on the imagery of Luna Park. A permit application was lodged by Innominata Pty Ltd with the Port Phillip City Council for the development comprising retailing, two restaurants and 14 apartments. The Council refused the permit application. Its opposition is based on the loss of five significant heritage buildings currently on the site, the failure of the replacement building to achieve a suitable transition to properties it abuts in Havelock Street, some other aspects of the design detail in terms of the building's relationship to the public realm, and insufficient parking to service all proposed land uses.
2. Innominata Pty Ltd has sought a review of the Council's decision. All grounds of refusal and opposition to the proposal are contested by the Applicant. The Tribunal must decide whether to grant a permit. Having considered all submissions, assisted by our inspection of the site[1], we will set aside the Council's decision. The reasons why we grant a permit follow.

1. The review site is located on the north-east corner of Acland, Carlisle and Havelock Streets facing a wide, complex, landscaped intersection with The Esplanade. The land comprises five lots with a total site area of 692 square metres. The street frontages are respectively 19.27 metres, 13.32 metres and 25.78 metres. Four of the lots contain a row of single storey attached shops (originally dwellings) with inter-war façade detailing. These face Acland and Carlisle Streets and include the side of one building and rear car park also fronting Havelock Street. The fifth lot contains a single storey Queen Anne dwelling that is one of a pair with a dwelling to its east[2] at No. 6 Havelock Street. There is a narrow walkway down the west side of No.4 Havelock Street leading to the rear of two of the shops (used as Greasy Joe's bar). The other two shops are used for retailing.
2. To the north of the review site is a single storey commercial premises with a high front parapet all in black tiles. This is also part of Greasy Joes business. Next to the north is a double storey milk bar/mixed business on the southern corner with Fawkner Street. Next to the north, across Fawkner Street, are two large buildings, Columbo Court and Harley Court.
3. To the east of No. 4 Havelock Street are single and double storey dwellings on the north side of that street. The south side of the street, fronting into Carlisle Street, comprises the Cosmopolitan Hotel with its three storey building and car park. The opposite corner of Carlisle and Acland Streets contains a double storey period building.
4. Around the intersection are also a McDonald's premises, the O'Donnell Gardens and the side of Luna Park. Kerb extensions associated with the intersection in front of the site include two palm trees. South of the intersection is the heart of the Acland Village centre.

1. Approval is sought to demolish five buildings and construct a four storey building plus a basement. The building comprises retailing (215 square metres) and a restaurant at ground level (268 square metres), another restaurant at first floor level (503 square metres) and 14 dwellings. The units would each contain two bedrooms except for one three bedroom unit. The units would be at first and second floor levels except for the ground level of unit no. 11 that abuts No. 6 Havelock Street and would be accessed direct from the street. Roof decks are proposed for nine units. We understand the ground level retail uses would be accessed from Acland Street but no entry details are shown on the plans for the ground level restaurant and retailing. The first floor restaurant and apartments would be accessed from Carlisle Street with separate lifts to upper levels. A balcony fronting Acland Street is associated with the restaurant at first floor level.
2. A basement with 20 car spaces is proposed, accessed from Havelock Street, west of unit no. 11. The car spaces would be allocated for the residential component with the balance of spaces for staff associated with both commercial uses. The basement would be left-in/left-out given Havelock Street is one-way. The basement would provide for some loading, storage and a tank for recycled water. Lift access would be available for residents.
3. The building would be 13.5 metres high plus four metre high stairwells for access to roof decks and plant/services. The decks would have glazed balustrades and steel divides. During the hearing, variations to the treatment of the roof top elements were proposed as discussed later in these reasons. The building would abut Acland and Carlisle Streets and have a narrow setback from Havelock Street at ground level. The form would be four storeys except for a transitional element toward No. 6 Havelock Street that would be three storeys. The palm trees would be retained.
4. The façade treatment features a folded sheath, of copper cladding, in the form of a giant mask perforated by amoebic-shaped openings. The western façade is simpler and details of the corner and edge treatments were tendered during the hearing, as well as a materials board. The north-east and north-west elevations include "drawer" detailing.

1. A permit is required for buildings and works in the Business 1 Zone of the Port Phillip Planning Scheme.[3] No. 4 Havelock Street is within a Residential 1 Zone where a permit is required for the development of dwellings. A permit would also be required use and develop a car park in association with Section 1 and 2 uses within the proposed development. [4]
2. A permit is required for demolition, buildings and works under the Heritage Overlay (HO5 - St Kilda Hill) that applies to this site.[5]
3. A Design and Development Overlay (Schedule 6 - St Kilda Area - Including Fitzroy Street, The Esplanade and Acland Street) also applies to the four lots within the Business 1 Zone but not to No. 4 Havelock Street. A permit is required for buildings and works under the DDO. DDO sub-area 6-7 includes the review site.
4. A Special Building Overlay applies to the land. A permit is required for buildings and works. Melbourne Water has offered no objection to the proposal subject to conditions. Its conditions would require floor levels to be changed. Having regard to revised flood mapping, there is some prospect that Melbourne Water may not require these levels to be altered. [6]
5. Car parking requirements are at Clause 52.06. A permit is required to reduce the amount of car parking proposed for all uses that would occupy the proposed buildings. A permit is required to vary the loading requirements at Clause 52.07. Bicycle parking can be provided in accordance with Clause 52.34.
6. A number of other Clauses of the Scheme are relevant to a decision and have been considered by the Tribunal including Clauses 11, 12, 14.01, 15.11, 15.12, 16.02, 17.01, 17.02, 18.02, 18.03, 19.03, 21, 22.02, 22.06, 22.09 and the general decision guidelines at Clause 65.

1. The review site is mostly within a Business 1 Zone with a Design and Development Overlay that guides development in St Kilda. No. 4 Havelock is affected by a different suite of controls typical of St Kilda's residential areas. The whole of the subject land is within a wide heritage precinct.
2. As the parties variously stated, there are many policies within the Port Phillip Planning Scheme that are relevant to the proceedings before us.
3. We have sought to distil them into some key themes most relevant to the proceeding before us. We do not think these are contentious in terms of the outcomes they are seeking. These themes are:
   • The area has a fine grain urban pattern and significant heritage buildings are part of St Kilda's identity. Existing iconic buildings are important in this respect.
   • Significant and contributory heritage assets are to be conserved, protected and enhanced as part of the identity of the City.
   • The character and amenity of residential areas is to be protected.
   • The tourist role of activity centres is to be supported.
   • The existing shops are part of the Acland Street major activity centre with overall aims to retain the centre's vibrancy, eccentricity, low rise village feel.
   • The Acland Street - Carlisle Street intersection provides a sense of entry to the Acland Village and to the St Kilda Foreshore precinct.
   • The DDO6 control guides change that can be expected to occur in a major activity centre. The sub-areas within the Overlay work together to set a vision for the development of the St Kilda foreshore and Acland Street areas.
   • New development should be of high quality, result in a net improvement in the public realm (including active frontages), and graduate between low and higher rise development.
   • New buildings are to be compatible with the existing diverse architectural and streetscape character of St Kilda, reinforce its distinctive built form, and be compatible with neighbouring buildings.
4. At the core of the dispute before us is what we believe is a particular tension between the directions of the Scheme relating to heritage protection and the design objectives for St Kilda and DDO6-7 (O'Donnell Gardens). The former emphasise the demolition of "significant" heritage buildings is strongly discouraged and would be supported only in specific and limited circumstances, as we discuss below. DDO6-7 sets a maximum height limit of 13.5 metres and seeks to ensure new buildings contribute to the sense of arrival at O'Donnell Gardens and Acland Street, including the prominence of Luna Park. DDO gives rise to expectations of some four storey development in DDO6-7 despite the fact that over half of the 17-18 lots in the sub-precinct are "significant" heritage places pursuant to Clause 22.04 and those lots are contained in both Business 1 and Residential 1 Zones.
5. The Council's position is that the heritage and design objectives can be achieved together by the retention of heritage stock and redevelopment that respects that stock and achieves the stated design outcomes. We understand that position although the extent of development possible will be influenced by the varied lot sizes and depths that dictate the amount of developable area if parts of significant buildings are retained. The same physical constraint affects the extent of graduation that can be achieved between development in the DDO and abutting lots outside DDO6.
6. The Overlay gives limited direction as to how to deal with heritage fabric in DDO6-7. The only design objective addressing this point relates to all sub-areas. It is "To ensure new development on sites containing or adjacent to a heritage place is of a form and scale that is respectful of the heritage place". Underlying the objective could be said to be the premise of retention of heritage stock consistent with Clause 22.04, but DDO6-7's preferred character, design objectives and requirements do not refer to heritage considerations at all. That contrasts with other sub-areas such as DDO6-1 that refers to adjacent heritage buildings and DDO6-5 that has several references to the heritage of St Kilda Hill.
7. Amendment C43 introduced the current suite of controls in DDO6. The Panel report for that Amendment does not refer to heritage issues in its discussion of the proposed controls specifically for DDO6-7. That is, there is no recognition of a possible tension with other Scheme provisions and how such a tension should be resolved. There is no comment in the Panel's discussion of No. 68-72A Acland Street that there may be heritage considerations when it addressed a submission on behalf of the owner for the proposed 13.5 metres height limit to be discretionary rather than mandatory. [7]
8. Having regard to the above, the critical issue is how the proposal addresses all of the Scheme's directions and, ultimately, whether it represents an acceptable outcome even though it may fail some aspects of local policy.

Is the demolition of five 'significant' buildings acceptable?

1. Demolishing five buildings identified as "significant" in the Port Phillip Planning Scheme has essentially no prospect of finding support from the Council through its local policies unless the buildings are structurally unsound, cannot be feasibly reused and a replacement displays design excellence supporting the area's ongoing heritage significance. The Council considers demolition to be arguably the proposal's major failing because that would not comply with the policy contained in the Scheme that strongly discourage removal of "significant" heritage buildings. Mr Beard cited Clause 22.04-4 and DDO6 provisions in support of this position.
2. Mr Islip gave evidence describing the impact of the loss of the commercial buildings as detracting from the inter-war heritage character of the Acland Village precinct. Mr Islip described the loss of No. 4 Havelock Street as affecting the symmetry and original significance of the pairing with No. 6 Havelock Street and the streetscape overall. Evidence in reply was presented by Mr Lovell and Mr Raworth.
3. The provisions of Clause 43.01 trigger a permit for demolition of all buildings on the review site. The decision guidelines include:
   • The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
   • Any applicable heritage study and any applicable conservation policy.
   • The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.
   • Whether the demolition, removal or external alteration will adversely affect the significance of the heritage place.
4. The decision guidelines require us to consider the significance of the buildings in issue and their contribution to the heritage place HO5 (that can bring into the assessment the buildings' condition, integrity and context). They also require us to consider the merits of the proposed building and works as we discuss later.
5. The Council's position is based on the two arms of its demolition policy:

Not support the demolition of a significant building unless and only to the extent that:

• the building is structurally unsound or cannot be feasibly reused.
• the replacement building and /or works displays design excellence which clearly and positively supports the ongoing heritage significance of the area.

1. It is common ground between the parties in this case that the demolition of the five buildings would result in a loss of heritage fabric and must therefore have some impact on the values of HO5. It is also common ground that the proposal fails the first test of the Council's policy as it is agreed between all parties all five buildings are not structurally unsound and could be re-used in some form (although the latter was the subject of some submissions as to how this might impact on the fulfillment of the DDO6 objectives).
2. Even though the proposal would not meet the first arm of the local policy at Clause 22.04-4, a critical analysis must have regard to the degree of significance and the actual contribution made by these buildings to HO5 to understand what the extent of loss would be.
3. This is essential because, for example, removal of a building(s) of high individual significance may be a too great a loss to allow when all relevant matters are taken into account. Conversely, if the buildings are of a limited significance and/or integrity, that is relevant to a final decision weighing the positive and negative outcomes of a specific proposal.
4. Clause 22.04 describes significant heritage places as including buildings and surrounds that are individually important places of either State, regional or local heritage significance or are places that together within an identified area, are part of the significance of a Heritage Overlay.
5. The statement of significance for HO5 cited by all heritage witnesses refers to St Kilda Hill's historical significance and diverse architectural character. It says that "Today, the Hill offers valuable insights into the housing styles of the rich from the 1840s onwards, retaining important examples of architectural styles from each period in its history". Mr Lovell said the focus of HO5 is privately owned buildings (houses, hotels and apartments), places of entertainment and recreation, and diverse architectural character. We agree. No single architectural style or period is identified in the statement as of particular or greater significance. Rather the evolution and range of styles is significant.
6. No party contended any of the structures in issue are individually significant. The buildings were referred to by Mr Raworth as being equivalent to 'D' grade. Mr Lovell referred to their grading from several heritage studies, none of which identified any of the buildings as of the highest or high significance.
7. The four buildings at Nos. 68-72A are regarded by the Council and Respondent Objectors as representative of the inter-war period, of which there is a dominance in the immediate setting, albeit the shops fronts are altered. These four buildings were originally dwellings modified in the 1920s by the addition of inter-war shop fronts with some interesting detailing. We observed the interiors of two premises that retain a dwelling layout to their rear including some details such as tiles, ceiling roses and cornices. Mr Lovell referred to this history as of interest.
8. The integrity of the group of four shops is affected by alterations to the inter-war treatment and the extent to which the fabric of the original dwellings has been altered and/or removed. We accept Mr Lovell's evidence that the context is not influenced by any specific or particular relationships that are significant; there is not a high degree of cohesion given the non-contributory building immediately to the north and the variation of forms addressing the intersection even though there is some presence of inter-war structures in the vicinity. We also accept Mr Lovell's and Mr Raworth's evidence that removal of the four buildings would represent a loss but would not affect other heritage places in the immediate area or represent the removal of individually significant structures.
9. The low profile of the group of four compares with the more dominant and obvious presence of higher structures, both old and new, in the immediate setting. The buildings consequently appear quite under-stated. The "castle" parapet detailing is interesting but we have not been presented with evidence by the Council or any other party to persuade us that the detailing or structures have a high degree of significance in architectural or other terms.
10. The prospect of the demolition of No. 4 Havelock Street is more challenging. It is typical of the precinct's layered development and is quite intact. It shares a symmetry (and party wall) with No. 6 Havelock Street. It is one of a pair in a domestic streetscape extending along Havelock Street's north side, and further eastwards also on the south side. The streetscape is a mix of building stock in terms of styles and heights. No. 4 sits at one end of this fairly consistent row. Its wider physical setting includes the non-contributory Cosmopolitan Hotel and the side of a site fronting Acland Street; a setting which Mr Lovell aptly described as "visually competitive".
11. We accept the expert evidence for the Applicant that the house is at an edge in physical terms and thus its removal would not create a gap or jarring element within a row. Nonetheless, demolition of No. 4 Havelock Street would represent a loss to the values of HO5 given the building makes a positive contribution at present. We consider this impact would be a greater loss than represented by the potential demolition of the row of four shops.
12. Demolition of the existing buildings does not accord with local policy. The loss would be notable with the greater impact being with respect to the proposed demolition of No. 4 Havelock Street.

Is the replacement building acceptable in terms of the Heritage Overlay?

1. Clause 43.01 requires consideration of the proposed building with the following decision guidelines being most relevant in addition to the State and Local Planning Policy Frameworks:
   • Whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage place.
   • Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place.
   • Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.
2. The second arm of Clause 22.04-4 requires a replacement building/works to "display design excellence" that will "clearly and positively support the ongoing heritage significance of the area".
3. We have considered the guidelines for new development in the Heritage Overlay referring to setbacks; buildings siting, scale and massing; and materials and finishes. They are relevant to the Clause 43.01 decision guidelines recited above.
4. It is common ground between the parties that the proposed building represents a very well resolved and very high quality design. We accept the evidence of Mr Hutson in this regard. Witnesses variously referred to the building's "quirkiness, "kooki-ness", "St Kilda-ness" and "flamboyance" in positive terms as to how the design has responded to the heritage fabric and would in time be seen positively in heritage terms.
5. We agree. We do not intend discussing at length what "design excellence" might mean, suffice to say that we accept the evidence of Mr Hutson, Mr Lovell and Mr Raworth that the proposal displays architectural merit and design quality that we find is consistent with what the local policy calls for. Our only concerns relate to some detailing at ground level, the roof top elements and the relationship to No. 4 Havelock Street, discussed below.
6. The Council criticised the size of the building's footprint, its failure to respect the fine grain pattern of HO5, and its abrupt transition to No. 6 Havelock Street. Mr Islip addressed these matters. Ms Davis supported some of these submissions. She was also concerned about the relationship to the buildings immediately to the north at No. 62-66 Acland Street.
7. Before addressing the specific concerns, we first remark on the scale of the proposed development in this setting, in heritage terms. The building would be four storeys in a robust context that includes a double storey corner heritage building to the south, a single storey ungraded building to the north, then a double storey heritage building on one corner with Fawkner Street. Next to the north are three storey heritage buildings, while opposite is a McDonald's store framed by the rear of a multi-level building being erected on The Esplanade. South along Acland Street are buildings at two and three levels as well as the wide vista created by the O'Donnell Gardens and low structures on the south-west side of Acland Street. All of these elements are within HO5. With the diversity of styles and scales, we do not consider the overall form and massing of the building would adversely affect the heritage place but instead would add a quality infill building into a diverse heritage context without competing with heritage icons such as Luna Park. It would respond to the exuberance associated with this area whether or not the Dali influences are fully identifiable by all.
8. The design satisfies Clause 22.04-4 relating to new development insofar as:
   • it adopts a zero lot line and would not interrupt views to the principal facades of an adjacent heritage place;
   • it responds to the diverse streetscape rhythm and adopts a scale that is respectful of the larger and taller heritage elements, such as found to the north and south in Acland Street;
   • it adopts interesting façade articulation and, even though it does not replicate materials found in the area, utilises materials and finishes that complement in a contextual manner.
9. The size of the building differs from the fine grain form represented by the four shops. However, the site and building wrap around the corner with the copper face presenting at this bend. The more conventional architectural treatment to the Acland Street frontage is not so broad as to cause a discordant element. Divisions within that façade would assist to maintain some form of connection with the finer grain of lots and older buildings.
10. The building's relationship to the north is with a single storey building presenting a black tiled façade and high parapet and then a double storey brick building with pitched tiled roof. The former is not identified in Clause 22.04 as being significant or contributory while the later is significant (as are the three storey forms to the north of Fawkner Street). The proposed four storey wall would represent a level difference of around 2½ storeys from the adjacent black tiled façade. We accept the evidence of Mr Lovell and Mr Raworth that the transition is manageable and acceptable in this commercial context. It is not unusual when viewing the relationship of high and low heritage structures in HO5. It can also be expected that the black tiled building will be redeveloped in time, and we have been mindful that it, and the lot to its north, are deeper than the review site and wholly contained in a Business 1 Zone and DDO6.
11. Next we refer to the relationship to No. 6 Havelock Street. The single storey form of that dwelling would abut a three storey form at the same street setback. The relationship is supported by heritage witnesses for the Applicant on the basis that it is common to see pronounced physical contrasts between built forms (residential and other) within HO5. The form was described as not diminishing the significance of No. 6 Havelock Street or detracting from the contribution No. 6 Havelock Street makes to the streetscape eastwards. Mr Lovell used the example of a like relationship between houses and the St Kilda Inn at the Barkly Street end of Fawkner Street. [The lower section of the Inn development was previously a car park and that proposal did not require the demolition of heritage buildings].
12. The height level difference between the proposed three storey form and No. 6 Havelock Street would be around 1½ storeys. The built form would appear quite different - the rectangular building shape and flat roof of the proposed building compared with the recessed pitched roof of No. 6 Havelock Street. The distinction would be accentuated by the dark colours associated with the existing dwelling and light colours for this part of the proposed building. The variation would be sharp given No. 6 Havelock Street is positioned on the boundary and that boundary would be shared with the three storey wall. Examples of the close juxtaposition of low rise and higher forms tend to involve some setback that gives some breathing space, albeit minor. The proposal does not offer that.
13. Mr Islip suggested the transition would be satisfactory by stepping the third level back by 3 metres from the street plus one metre along the east elevation. While we share some of his concerns about the relationship, we have not been persuaded this precise modification is necessary in the site's context nor given the consequent impact upon the proposed design. We believe the physical relationship can be improved and softened by some massaging in detailed design. We propose to leave the precise form of this variation to be decided by the architects with the Council - whether that be through modulation or varied detailing/colours to the walls and façades. We are confident the architects can address this matter.
14. The building would be obvious in views from Fawkner and Havelock Streets but would not cause a disruption to, or dislocation within, either streetscape. The proposed building would not affect the ability of these streets to retain their distinctive heritage characteristics. Views of a large form to the rear of existing heritage buildings are not unacceptable in the site's physical and planning context. Ms Davis expressed some interest in greater use of colour to the rear elevation (akin to No. 30 The Esplanade) which we would not oppose but will not require.
15. We have some issue about the roof top elements that, based on the substituted plans, would be dominant with four metre high stairwells. This is an unacceptable heritage response. We discuss these further below.
16. We agree with Mr Islip that quality materials are essential to a successful outcome in heritage (and urban design) terms. We requested and were provided with a materials board that identifies the intended materials. We can require that to be generally adhered to through permit conditions.
17. For the above reasons, we are persuaded that the proposed building would represent an acceptable outcome. It would not adversely affect the significance of the heritage place or adjacent heritage buildings, rather, it would make a positive and distinctive contribution to the evolution of HO5 subject to some minor changes with respect to detailing.

1. DDO6 has multiple design objectives that we do not need to recite in full. Of particular relevance to the matters in dispute are the following:
   • To ensure the built form and building siting respects the dominant street patterns.
   • To encourage high quality, well-designed new buildings, works... that are compatible with the existing diverse architectural and streetscape character of St Kilda and reinforce its distinctive built form.
   • To create articulated, attractive and detailed facades on all visible elevations, including exposed boundary walls.
   • To ensure that the facade design of new development is compatible with, and respects the character of, neighbouring buildings within the same streetscape.
   • To ensure that active frontages are achieved .....
   • To strengthen and enhance the pedestrian links between The Esplanade and Fitzroy Street and Acland Street, and to the St Kilda foreshore.
   • To encourage architectural design elements which enhance the character of the area and form and provide a safe and comfortable environment for outdoor eating and promenading.
2. We do not think there is a particular dispute about positive features of the proposed building such as activation of the ground level with retailing and a restaurant, the desirability of concealing car parking and the inclusion of a residential use adjacent to No. 6 Havelock Street. It is also common ground that the requirements of DDO6-7 are met with respect to height, shadows and setbacks. Instead, the issues raised in the submissions by the Council and Respondent Objectors relate to the scale and extent of the development, the lack of a suitable transition to residential areas, impacts on the public realm from the poles is the design, the balcony for dining at first floor level, and lack of a plan dealing with streetscape works.
3. DDO6-7 O'Donnell Gardens sets a preferred character upon which we set out our findings next:

High quality architecture that addresses the street and interfaces with the residential area to the south [sic].

The very high quality architectural response addresses all street frontages and, with some minor changes, represents an acceptable transition to the dwellings to the east and north.

Hard-edge, expressive urban form that defines the street edge and the urban space of the adjacent Acland Junction and of O'Donnell Gardens.

The design is hard-edged and expressive, at zero lot lines, and would make a strong and positive contribution to define and enhance the urban plaza.

Mix of uses above ground level leisure, shopping and dining facilities.

Residential and a restaurant are proposed above ground level retailing and dining. The design should make clear that entry can be gained from Acland Street at ground level.

A transition in scale between the Upper Esplanade, O'Donnell Gardens precinct and Acland Street.

The building height transitions between taller forms along the Upper Esplanade and lower forms in Acland Village. It meets the mandatory height control. Improvements can reduce the visible roof top elements by the addition of a sculptured screening device, lowered plant and deletion of the roof decks.

A built form that complements the scale, character and siting of the Luna Park entry face and towers and scenic railway structure to form a sense of gateway to the approach to O'Donnell Gardens and the Acland Village precinct.

The form would not compete with, but instead complement, icons such as Luna Park and the Palais Theatre. It would provide a strong built form and expressive design that adds to the built form character and helps mark the sense of gateway into Acland Street and out to the foreshore.

1. DDO6 calls for the type of building proposed here. We consider the design and form is a very positive response to the preferred character and would be an enhancement to both Acland Village and the nearby foreshore setting. We consider the objectives set out in Clause 19.03 are met.
2. We are not, however, satisfied with the roof top treatment. The substituted plans provide for nine, four metre high, stairwells to service nine roof decks as well as the lift plant and balustrade that would divide the roof decks. The decks would abut the eastern elevation but be setback 3.4 metres from the western elevation. One stairwell would abut the northern elevation.
3. During the course of the hearing, variations were proposed in response to Mr Islip's valid criticism of the outcome of these multiple roof details. That finally resulted in Version P of plan SK06 (06/05/08) with a metal screen curving around the roof stop stairwells that were lowered to 2.4 metres. The screen would need to be perforated to allow access across the decks. The screen is not shown along the northern elevation.
4. This matter was dealt with "on-the-run" and not resolved to our satisfaction. Putting aside the various submissions as to whether roof decks are lawful under the provisions of DDO6 when above 13.5 metres, we are not persuaded Version P would produce an acceptable outcome. Stairs are too close to the northern elevation and the layout would produce two sets of balustrades/ screens. We are not persuaded the glass balustrade to the eastern elevation would be essentially unseen or that the divides between decks do not add to clutter in an otherwise very streamlined form. The elements shown would not, in our view, be a fitting cap to the otherwise high quality design.
5. We will require the nine decks to be removed. We will require all plant to be relocated and surrounded by a screen of no more than 2.4 metres in height generally as shown on the plan marked SK-06 Revision P. We will also require the screen to be extended to all sides of the roof but no closer than 4 metres from the north-west and north-east elevations. In making this change, we appreciate the obvious desire for roof decks given the potential for views. Any argument as to the legality of roof decks can be determined if an application is made to add a roof deck(s). A central communal area may be suitable to avoid detracting from the balance of the design.
6. We find the transition to No. 6 Havelock Street to be generally acceptable for reasons set out above (subject to design detailing being varied as previously discussed). We also persuaded that this interface is acceptable having regard to the wider built form context in this part of St Kilda, outside HO5 and DDO6.
7. With respect to other specific criticisms, we find as follows:
   • Mr Hutson and Mr Govenlock agreed with Mr Islip that the pole elements in the design are worthy but need to be positioned to avoid intrusions and clutter in the public realm. We accept Mr Islip's suggestion that this can be dealt with by conditions.
   • The Applicant is willing to prepare a "landscape" plan dealing with the public space on Acland and Carlisle Streets including the addition of bicycle parking near the entry lobby on Carlisle Street.
   • We agree with the Council that the balcony should be reduced in size as approval from the Council for a larger area is unlikely and there is the potential for off-site impacts from the protruding form. An open area for smokers can be achieved by recessing the restaurant window. That does not mean removing the copper treatment that extends through this part of the building façade; Mr Lovell observed this important unifying element can be retained with a narrower balcony.
   • The detailing of the north-west corner and south-east corner was more clearly shown in montages tendered at the hearing than evident in the elevations. The same is the case for the "drawers" proposed in the north-east elevation. We will require these and related design details to be confirmed.
8. As noted, there does not appear to be direct access to the ground level restaurant and retailing from the street. That should be addressed in association with detailing of the glazed façade treatment at this level.
9. For the above reasons, subject to some refinements, we find the proposal to represent a positive response to the requirements of DDO6 and broader design outcomes sought through Clause 19.03 of the Scheme.

1. Another of the grounds relied upon by the Council is that insufficient parking is included within the development; the reduction in parking sought is too great. Respondent Objectors were concerned about parking infiltrating local streets despite limits such as two hours in Fawkner Street.
2. The proposal would provide for parking for residents and most (but not all) staff to service the commercial components. No parking would be provided for customers.
3. Parking evidence was presented by Mr Walsh who referred to likely parking demands and the availability of parking in the area (400 metre radius) including on-street and off-street parking. Mr Walsh adopted 0.28 spaces/seat. At a rate of 0.3 spaces per seat, a rate adopted by the Council, the shortfall would be 75 spaces. The Applicant indicated a willingness to agree to limits on the restaurants of 100 patrons at ground level and 150 patrons at the upper level.
4. The proposal was said by Mr Gobbo to be consistent with the approach taken by the Council for No. 30 The Esplanade where a limited number of spaces were provided for staff but not patrons of the restaurant within that development. However, the Council is concerned the proposal would utilise too great a share of the public resource close to the site. Mr Beard noted some off-street carparks in the wider area close at midnight.
5. There is little parking at present on-site - only two spaces behind one shop. The proposal would provide on-site parking for all dwellings and a sizeable amount of parking for staff of the commercial uses. This is a positive outcome. Having regard to the availability of spaces in the wider area (that do not rely on spaces within residential streets), the major activity centre location, and the Business 1 zoning of the land, we are persuaded that proposal should not fail because of insufficient car parking or too many restaurant patrons (at a total of 250 patrons for the two restaurants). The area has excellent public transport access. Staff and patrons that can not be accommodated on-site can avail themselves of these facilities or consider other options such as walking or a bike.
6. We appreciate concerns about parking in local streets that can be very heavy. There may come a time for a permit system to be introduced. That would be for the Council to implement. Such a system may overcome concerns raised by Respondent Objectors about overflow parking into streets such as Fawkner Street and problems with patrons using and over-staying two hour parking spaces. Despite that occurrence, we are satisfied the impost on public car parking by this proposal is acceptable. It does not rely on accessing parking that is limited in residential streets.
7. The loss of public parking during the construction of the St Kilda triangle project may influence parking in the wider area as observed by Ms Davis. However, we do not consider this a reason why the proposal should fail.
8. We note a small loading area within the building although more loading could be expected to occur on-street. This is acceptable.
9. We are aware of concerns about rubbish removal referred to in statements of grounds relating to the operation of existing premises. We propose that this matter be dealt with by conditions addressing rubbish storage and disposal as well as general amenity conditions that can provide the basis for enforcement action if any nuisance arises.

Can access & parking layouts meet the Residential 1 Zone requirements?

1. We have recorded that a prohibition on access and parking spaces for the retail use within the Residential 1 Zone was raised as an issue by the Tribunal subsequent to the hearing. The hearing was reconvened to discuss it. Mr Gobbo accepted our interpretation of the Schemes provisions (as set out in our order of 21 May 2008) that a basement and its access to service proposed retail uses would be prohibited under the Residential 1 Zone although it would be allowable for the dwellings and restaurants.[8] Mr Gobbo tendered variations to the plans (SK01J and SKO2R) to demonstrate how this could be rectified[9], with corresponding modifications to the elevations. He said the Applicant would support a condition limiting car spaces #13-16 to residential use only. The plans had been provided to the Council and Ms Davis.[10] Mr Gobbo also suggested an alternative, being a full waiver of parking for the retail uses.
2. We are satisfied that the revised plans and permit conditions would enable this legal issue to be addressed, so that no parking or access associated with a shop would be within the Residential 1 Zone. The parking layouts in the substituted plans and the most recent revised plans are both workable, as noted by Mr Beard. However, we prefer the layout shown on the revised plans to ensure that the matter is addressed up-front rather than creating practical difficulties associated with the use of the land and issues with enforcement. We also prefer this course than a full waiver of parking for the retail use given benefits of on-site parking for retail staff. The minor changes to the elevations as a consequence do not alter the conclusions we have drawn above with respect to the merits of the design response.

1. Ms Davis referred to patron behaviour in the area and her concern about additional on-street behaviour that affects residential amenity. The same concern arose in statements of grounds by other Respondent Objectors.
2. The proposal would replace some existing restaurant/bar usage but the close proximity of dwellings and entertainment uses is a valid issue. The intended uses intended are restaurants, not bars or night clubs, and the nature of the restaurant is expected to be quite different to Greasy Joes. No permit is required for the restaurant use but we accept the hours of operation proposed by the Applicant as 7am to 1am the following morning as suitable for this site in this Business 1 Zone in this location.
3. We do not find an11pm finish on some weekdays is necessary given the existing use of the land and the zoning. Residents within the development would assist in some ways to ensure that the activities on-site do not unreasonably prejudice amenity. We will require a 7am start, not 6am.
4. The siting of residential uses abutting No. 6 Havelock Street would assist to minimise direct amenity impacts on that dwelling. The statement of grounds from Mr Rushworth refers to a loss of privacy given the scale of the development but we are satisfied that screening measures are in place to prevent unreasonable overlooking from the proposed dwellings and can be added in accordance with Mr Govenlock's evidence. With respect to visual bulk, we observe the dwellings to the eastern part of the proposed development would not extend past the rear wall of No. 6 Havelock Street. With this, and noting the DDO6/Business 1 Zone that apply to land directly behind Nos. 4 and 6 Havelock Streets, we find an acceptable outcome is achieved when taking into account the planning objectives that apply.
5. Mr Rushworth referred to the potential for damage to No. 6 Havelock Street during construction and associated with flooding. Impacts during construction are addressed through the building approval process and we have referred to Melbourne Water's position previously. We are satisfied that neither concern causes the proposal to fail or to require additional permit conditions than those proposed by the Council and Applicant.

Is an acceptable level of internal amenity achieved?

1. It was through Mr Islip's evidence that two matters concerning the internal amenity and layout of the development were raised.
2. First, Mr Islip referred to the need for adequate solar control to avoid excessive heat loads. This is readily resolvable and addressed through the finalisation of materials and finishes.
3. Second, Mr Islip queried the extent of natural cross-ventilation achieved in the design, other than for units 10 and 11. The design includes voids/courts and these could be provided with some form of opening to assist with air flow, subject to some consideration of the potential for noise transmission.
4. We consider these matters can be addressed if desired by the architects in detailed design but we will not require specific changes via conditions.

Overall, would the proposal achieve an acceptable outcome?

1. If heritage considerations are considered in isolation, we may have no difficulty reaching a conclusion that the demolition of five significant buildings is not acceptable. The buildings make a contribution to the significance of HO5, are in a condition to enable their further and continuing use, and are part of the diversity upon which HO5 is significant.
2. However, to reach a view that demolition is precluded does not give any or sufficient weight to the other development control applying to most of the review site, being the Design and Development Overlay, that sets other planning objectives for this locale.
3. The review site importantly presents as one corner to the Acland/Carlisle Street intersection. The outcomes of the Overlay are, among other things, directed at improving and enhancing this part of St Kilda to facilitate its role as providing for a sense of arrival to Acland Village and the foreshore. It is necessary to consider what the Scheme, as a whole, is seeking for this place. There is an expectation that significant heritage buildings would be retained but there is also an expectation that the corner site would make a contribution to the enhancement of the particular function of this intersection to the village to the south and foreshore to the north. The loss of four shops and a dwelling would be apparent but that is within a context that the buildings do not have high or individual significance and the setting is visually competitive. The proposed replacement building would be a bold and strong element that would enhance the intersection/plaza. It is critical to our decision that the contribution of the proposed building to the HO5, DDO6's design objectives, and the preferred character and design outcomes for DDO6-7, is extremely positive. It clearly meets the very high design standards sought generally and specifically for this key focal and transitional space subject to some fine-tuning.
4. The case for removing the four shops is stronger than for No. 4 Havelock Street. We have faced a particular dilemma with respect to that dwelling because it is not part of DDO6, it is quite intact, it is a pair with No. 6 Havelock Street, and it is part of a strong streetscape in heritage terms albeit it is at one end of the row of heritage buildings. After careful consideration, we find demolition of No. 4 Havelock Street is acceptable within the context of the redevelopment of the review site as a whole. The layout prevents the amenity impacts of the car park access being intrusive upon No. 6 Havelock Street by placing a dwelling between the driveway and existing dwelling to the east. Furthermore, inclusion of No. 4 Havelock Street enables a less abrupt interface between residential and business areas. The setting is compromised to a degree and may be further so given the Business 1 Zone extends behind No. 4 Havelock Street but this is not the most persuasive factor in our decision. Indeed, if we were considering a proposal to demolish No. 4 Havelock Street and replace it with a three storey dwelling in isolation from the remainder of the review site, it would be highly unlikely to receive our support.
5. However, mindful of the benefits of the proposal as a whole and its achievement of the outcomes expressly sought by DDO6, we have been persuaded to allow the demolition of No. 4 Havelock Street given the role this part of the proposed development can play in producing a positive design outcome and given the loss of No 4 would not be substantial.
6. This situation is different from various Tribunal decisions Ms Davis tendered addressing applications for the demolition of heritage buildings.[11] Most of the cases involved residential properties where there was a proposal to demolish an existing dwelling and replace it within another or multiple dwellings. There was no other Overlay or additional development control relevant to a decision, rather, assessment was required under the Heritage Overlay and Residential Zone within a policy context of encouraging "a conservation approach to urban consolidation in Heritage Overlay areas...".
7. The difference here is that we have several planning objectives being pursued through the Scheme and, when we consider them as a whole and assess the proposal's positive and negative outcomes, our determination finds in favour of the permit application. We agree with Mr Lovell that the project would deliver very high quality design. It would reinforce the evolving flamboyance and diversity of St Kilda's heritage. The building would substantially improve this important corner and would relate well to the iconic sites in the vicinity. It is, however, imperative to ensure the quality is carried through to material and finishes.
8. For the above reasons, we will set aside the decision made by the Responsible Authority and order that a permit be issued subject to conditions.

Permit 516/2007 - No. 68-72A Acland Street & No. 4 Havelock Street, St Kilda

• demolition of the existing buildings;
• construction of a four storey building plus a basement;
• a reduction in car parking;

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the submitted plans but modified to show the following:
   • (a) Revised access to the basement so that it is not contained within the Residential 1 Zone as generally shown on plans SK01 Revision J dated 03/06/08 and SKO2 Revision R dated 04/06/08. Any car spaces within the Residential 1 Zone must be nominated for residential use only.
   • (b) The roof deck and stairs associated with roof decks deleted. [Plant and equipment can remain with a stair access to that plant and equipment of no more than 2.4 metres in height].
   • (c) All plant positioned so as to be surrounded by a screen of no more than 2.4 metres in height. The position of the screen is to be generally in accordance with the plan marked SK-06 Revision P tendered to the Victorian Civil and Administrative Tribunal in Application for Review No. P3281/2007 but with the screen extended to all sides of the roof and no closer than 4 metres from the north-west and north-east elevations.
   • (d) Entries added to the ground level retailing and restaurant from Acland Street.
   • (e) All balcony or trafficable areas modified to protrude no more than 500mm over any title boundary while retaining the curved copper edge/finish.
   • (f) The decorative/feature poles repositioned so as to minimise impacts on pedestrian movement along the footpath.
   • (g) Bicycle parking racks close to the entry to the apartment lobby.
   • (h) Detailing to the street façades refined to include corner detailing shown on the montages tendered to the Victorian Civil and Administrative Tribunal in Application for Review No. P3281/2007 and a transition to the front and side of No. 6 Havelock Street.
   • (i) Screening from the court for Unit 9 to prevent unreasonable overlooking to the dwelling to the east.
   • (j) A landscape plan including details of works associated with the footpaths and street environment including bicycle parking.
   • (k) A schedule of external materials and colours, including samples (glass and otherwise) in a form capable of being endorsed and placed on file. This shall be generally in accordance with the "Finishes Board" 06.05.08 tendered to the Victorian Civil and Administrative Tribunal in Application for Review No. P3281/2007.
   • (l) A cross section (at 1:20 scale) through the balcony areas.
   • (m) Variations to floor levels if required by Melbourne Water as per Condition 22. Written evidence confirming Melbourne Water's position with respect to finished floor levels and stormwater management must be supplied.
   • (n) No part of the building, other than building service and plant areas, as higher than 13.5m above ground level.
   • (o) Car parking allocation as per Condition 18.
2. The development as shown on the endorsed plans, including dimensions, finishes, materials/textures and colours, must not be altered without the written consent of the Responsible Authority.
3. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
4. All external materials finishes and paint colours are to be to the satisfaction of the responsible authority and must accord with those endorsed under Condition 1.
5. The copper façade must be included within the permanent treatment of the building façade. Details of its method of fixing to the building façade must be to the satisfaction of the Responsible Authority.
6. The walls on or facing the boundary of adjoining properties shall be cleaned and finished in a manner to the satisfaction of the Responsible Authority and shall accord with the finishes endorsed under Condition 1.
7. No equipment, services and architectural features other than those shown on the endorsed plan shall be permitted above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority.
8. The restaurants shall have a maximum of 100 patrons at ground level and 150 patrons at first floor level.
9. The restaurants shall only operate between the hours of 7.00am and 1.00am the following day.
10. The restaurant tenancies must be suitably acoustically treated, to Council's satisfaction, to prevent excessive noise impacts upon nearby residential properties, including those within the development.
11. No external amplified equipment, music playing (live or recorded), loud speakers or public address system shall be used in conjunction with the use. No music, other than light background music, shall be played within the premises.
12. Noise levels shall not exceed the permissible noise levels stipulated in State Environment Protection Policy N-1 (Control of Noise from Industrial Commercial and Trade Premises within the Melbourne Metropolitan Area) and State Environment Protection Policy N-2 (Control of Music Noise from Public Premises).
13. Provision shall be made for the storage and disposal of garbage to the satisfaction of the Responsible Authority. All garbage store areas must be screened from public view.
14. Signs must be erected near exits requesting that patrons leave the building in a quiet and orderly manner so as not to disturb the peace and quiet of the neighbourhood.
15. Bottles shall not be emptied into any refuse bins between the hours of 11pm and 8am.
16. The amenity of the area must not be detrimentally affected by the use through the:
    • (a) Transport of materials, goods or commodities to or from the land.
    • (b) Appearance of any building, works or materials.
    • (c) Emission of noise, artificial light, vibration, smell, fumes, smoke, steam, waste water, waste products, grit or oil.
    • (d) Presence of vermin.
17. Parking areas and access lanes must be kept available for those purposes at all times.
18. All car parking spaces for the residential apartments shall be shown on any Plan of Subdivision as part lots to the dwelling lots. Not less than one car space shall be provided to each dwelling. Visitor and retail/restaurant staff car spaces must be shown as common property. Retail staff car spaces must not be located within the Residential 1 Zone.
19. Any solar panels, satellite dishes and air conditioning units shall be appropriately sited so as to minimise visual impact on the streetscape and/or on adjacent properties.
20. All piping and ducting, other than any down pipes above the ground floor storey of the building shall be concealed and any air-conditioning units installed shall be located so as to minimise noise and visual impact on abutting residents and are to be located behind sound reducing structures if necessary to the satisfaction of the Responsible Authority.
21. The Applicant/Owner must do the following things to the satisfaction of the Responsible Authority:
    • (a) Pay the costs of all alterations/reinstatement of Council and Public Authority assets necessary and required by such Authorities for the development.
    • (b) Obtain the prior written approval of the Council or other relevant Authority for installation/alterations/reinstatement of its assets, principally, the relocated vehicle crossover and public footpath works,
    • (c) Comply with conditions (if any) required by the Council or other relevant Authorities in respect of alterations/reinstatement.
22. Finished floor levels of the development, including the exit/entry to the basement car park, must be to the satisfaction of Melbourne Water.
23. No polluted or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
24. This permit will expire if the development is not commenced within two years from the date of this permit. All development must be completed within four years from the date of this permit. The Responsible Authority may approve extensions to these time limits if requests are made within three months of expiry.

[1] We inspected the site and locality on the morning of the third day of the hearing.

[2] Given the site is off-set from north, we have simplified some directional references for ease.

[3] Pursuant to Clause 34.01. The requirements of Clause 55 do not apply to a four storey building.

[4] Pursuant to Clause 32.01. More than one dwelling is proposed on the land aligned with No. 4 Havelock Street. A prohibition on the use of the car park and access for retail use within this Zone was raised by the Tribunal in an order dated 21 May 2008 and the subject of the reconvened hearing on 10 June 2008. Options to address this matter were referred to by Mr Gobbo including relocating the access from the Residential 1 Zone (shown on plans SK01J and SK02 R).

[5] Pursuant to Clause 43.01. The purpose and relevant decision guidelines have been considered by the Tribunal in addition to Clause 15.11 and 22.04 (Heritage Policy). Clause 22.04 identifies all five buildings as "Significant Heritage Places".

[6] Letter from Mr D Bonello of Melbourne Water to Mr A Rasmussen, Water Technology, dated 7 May 2008 indicating the land may not be subject to flooding. Mr Gobbo proposed conditions to address the possibility that Melbourne Water may not seek changed flood levels. We are satisfied floor levels could change and still meet the DDO requirements.

[8] This interpretation is also consistent with a recent decision by a legal member in Marble Swirl Holdings Pty Ltd v Kingston CC (Red Dot) [2008] VCAT 973.

[9] We have not confirmed the precise location of the zone boundary but we consider the revisions can be accommodated as proposed by the Applicant with any fine-tuning dealt with through the endorsement of plans. We also note a letter tendered from Cardno Grogan Richards relating to the revised layout.

[10] A written submission relating to the revised plans filed by Ms Davis has been considered by the Tribunal.

[11] For example, Catalano Family Pty Ltd v Port Phillip CC [2003] VCAT 1739, Evangelidis v Port Phillip CC [2002] VCAT 303, CRJ Industries v Port Phillip CC [2004] VCAT 1471.