436-438 Johnston Street, Lot 1 on Plan 752212 and Lots 1 & 2 on Plan 225991, Abbotsford

Investa Properties Ltd v Yarra CC [2007] VCAT 703

With respect to permit application PL06/0448, the Responsible Authority's decision to refuse to grant a permit is set aside.

A permit is granted for the construction of a 4-5 storey building (building and works); the removal of 4 trees; the use of part of the land for the purposes of food and drink premises (café) and restricted retail premises; a reduction in the car parking requirements; modifications to the loading bay requirements at clause 52.07; and permission to sell and consume liquor in the café under clause 52.27 at 436-438 Johnston Street, Lot 1 on Plan 752212 and Lots 1 & 2 on Plan 225991, Abbotsford generally in accordance with the endorsed plans and subject to the following conditions:

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 drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the substituted plans received on 7 February 2007, but modified to show:

(a)

The design of the west (Trenerry Crescent) façade of the proposed building modified to incorporate an appropriately dimensioned transom at the height of the Byfas building's front parapet.

(b)

The design of the Johnston Street portion of the proposed building modified by lowering the bottom of the projecting framed façade and/or the ground floor by 1.5 metres.

(c)

Schedule of all external materials and finishes. The schedule must show the materials, colour and finish of all external walls, roof, fascias, window frames, glazing types, doors, fences, paving (including car park surfacing), outbuildings and structures.

(d)

Addition of 'keep clear' imprint on the road pavement of the existing access driveway at the point of the car park entry into the proposed development.

(e)

Reconfiguration of car parking spaces (level 3) immediately above the ramp to a tandem arrangement as per Grogan Richards recommended alterations dated 17/5/2006 but modified to ensure reasonable access to the rear store/plant areas;

(f)

Either a head room clearance of at least 4m above the loading bay or evidence that larger vehicles are able to manoeuvre within this designated area;

(g)

Deletion of all reference to signage;

(h)

Provision of end of bicycle trip shower facilities;

(i)

The location of all pits, valves or meters (none of which are to be located on Council property);

(j)

A landscape plan showing the location, quantity and maturity of all proposed plants, the botanical name of plants, the location of all areas to be covered by lawn or other surface materials and a specification of works to be undertaken prior to planting. This must designed in consultation with Council's Open Space planning unit;

(k)

A notation showing that the irrigation of garden beds is to be achieved through the implementation of a bioretention treatment system; and

(l)

The location of vehicle crossings.

2 The layout of the café and restricted retail premises land uses and the detail of the development on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

3 All damaged road(s) and footpath(s) adjacent to the development site must be reinstated to the satisfaction of the Responsible Authority.

4 The areas designated on the endorsed plans for car parking must be used for no other purpose and be maintained at all times to the satisfaction of the Responsible Authority.

5 Any redundant crossover must be reinstated to the satisfaction of the Responsible Authority, including the reinstatement of the bluestone channel. The cost of these works must be borne by the developer.

6 All works associated with street trees (including the protection of street trees) is to be carried out under the supervision of Council's Open Space unit with all cost of works to be borne by the developer.

7 Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on nearby land. Outdoor lighting of the uppermost open deck car park (other than essential services lighting) must be switched off between 10.00pm and 5.30am.

8 Prior to occupation of any part of the development approved by this permit:

(a)

A waste management plan must be submitted to the Responsible Authority for approval and, once approved, shall form part of this permit. The waste management plan must include details of how waste generated by the uses is to be sorted (recyclables from non-recyclables), stored on site, collected from the site and transported off the site. It must further include a restriction on collection of waste to the main on-site garbage collection/loading area between the hours of 8.00-9.30am and 4.30-6.00pm (other than with the consent of the Responsible Authority). Collection of waste (including empty bottles from the licensed premises) must be by private contractor; and

(b)

A car park management plan must be submitted to the Responsible Authority for approval and, once approved, shall form part of this permit. The car park management plan must include, but not limited to, the allocation of car parking spaces to the various uses and/or occupancies within the development. It must provide for a minimum of 5 spaces near the entrance to be short-term parking for visitors. The following car parking spaces are to be allocated to staff of either the offices, café or restricted retail premises:

(i)

Any car parking space that is adjacent to a solid wall not having a width of 2.9 metres or greater;

(ii)

The southernmost parking space in the blind aisle on the ground level;

(iii)

Any car parking space which is adjacent to a column where that column is not setback at least 0.25 metres.

9 Any storm water drainage within the property must be provided and be connected to the nearest Council pit of adequate depth and capacity (legal point of discharge), to the satisfaction of the Responsible Authority.

10 Prior to the commencement of construction, the application is to contact Council's Reinstatement Officer to arrange a pre-construction site meeting and condition assessment of the infrastructure surrounding the site.

11 Prior to the commencement of construction, the applicant must submit for approval to the Responsible Authority a Traffic Management and Construction Management Plan in line with the requirements of the City of Yarra's Building Code of Practice. Once approved, the plan shall form part of this permit. The plan must address, but not be limited to the following:

(a)

site contamination and disposal of contaminated matter;

(b)

containment of dust, dirt, sediment and mud within the site and method and frequency of clean up procedures in the event of build up of matter outside the site;

(c)

on site facilities for vehicle washing;

(d)

parking facilities for construction workers;

(e)

delivery and unloading points and expected frequency;

(f)

a liaison officer for contact by residents and the Responsible Authority in the event of relevant queries or problems experienced; and

(g)

an outline of requests to occupy footpaths or roads, or anticipated disruptions to local services.

12 During the construction phase of the development:

(a)

only clean rainwater shall be discharged to the stormwater drainage system;

(b)

stormwater drainage system protection measures shall be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises enters the stormwater drainage system;

(c)

vehicle borne material from the premises shall not accumulate on the roads abutting the site;

(d)

all machinery and equipment must be cleaned (if required) on site and not on adjacent footpaths or roads;

(e)

all litter (including items such as cement bags, food packaging and plastic strapping) must be contained within the site boundaries, and disposed of responsibly; and

(f)

all site operations shall comply with the Environmental Protection (Residential Noise) Regulations 1997.

13 The licensed café premises must be managed in accordance with the City of Yarra Noise and Amenity Action Plan (NAAP) to the satisfaction of the Responsible Authority.

14 Liquor may only be sold within the licensed café premises between the hours of 7am and 9pm unless with the prior written consent of the Responsible Authority.

15 The number of patrons permitted within the cafe premises at any time may not exceed 100 without the prior written consent of the Responsible Authority.

16 Noise emitted must not exceed:

(a)

the permissible noise level from mechanical equipment as specified in the State Environment Protection Policy N-1 (Control of Noise from Commercial, Industrial or Trade Premises); and

(b)

the permissible noise levels for entertainment noise as specified in the State Environment Protection Policy N-2 (Control of Music Noise from Public Premises)

17 The amenity of the area must not be detrimentally affected by:

(a)

The transport of materials, goods or commodities to or from land;

(b)

The appearance of any buildings, works or materials;

(c)

The emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, or

(d)

The presence of vermin.

18 During all hours (whether or not liquor is served) in which the cafe is open to the public, entry must be made freely available to any authorised officer(s) of the Responsible Authority for the carrying out of any investigations associated with the sale or consumption of alcohol on the site.

19 During all operating hours of the cafe, there must be present on the site a person above the age of 18 years, who has been authorised by the occupier of the land and that person will be responsible for the good conduct of patrons arriving, using or leaving the premises. (For the purposes of this permit, this person is known as "the Manager").

20 The Manager must be qualified in operating a licensed premises in accordance with the policies and guidelines prescribed by Liquor Licensing Victoria.

21 All staff on the premises are to be appropriately trained in the responsible serving of alcohol.

22 No polluted and/ or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

23 Except with the written consent of the Responsible Authority, construction works must only be carried out between: 7.00 am - 6.00pm, Monday - Friday (excluding public holidays) and 9.00 am - 3.00 pm, Saturday and public holidays. No works are to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environment Protection Authority's Guidelines on Construction and Demolition Noise.

24 This permit will expire if the development is not commenced within two years from the date of this permit or not completed within four years of the date of this permit. The Responsible Authority may approve extensions to these time limits if requests are made within three month of expiry.

The Responsible Authority is ordered to issue a permit in accordance with this determination pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.

Mr J Gobbo QC instructed by Planning & Property Partners Pty Ltd lawyers

Mr Gobbo called the following expert witnesses, who presented their evidence-in-chief and were made available for cross-examination:

Mr J Rantino of Maddocks and Ms L Fleming, town planner

Mr Rantino called the following expert witnesses, who presented their evidence-in-chief and were made available for cross-examination:

1 This is an application to review the failure by Yarra City Council ('the Council') to grant a permit within the prescribed time for the development of a five storey building containing offices, restricted retail premises and a café at 436-438 Johnston Street, Abbotsford.

2 Following the lodgement of this application, the Council determined that it would have refused the proposal on the following grounds:

1. The proposal is contrary to the State Planning Policy Framework (in particular clause 19.03 - Design and Built Form).

2. The proposal fails to satisfy elements of Council's Built Form and Design Policy contained at clause 22.10 of the Yarra Planning Scheme, specifically:

3. The proposed development fails to address the concerns of the relevant road authority with regards to traffic movements within the local road network ...

Change to Description of Land Included in Application

3 Mr Gobbo sought leave to amend the description of the land included in the application to correctly identify all of the land forming the development site. In addition to 436-438 Johnston Street, Abbottsford (also known as Lot 2 on PS531744), Lot 1 on Title Plan 752212 and Lots 1 & 2 on Title Plan TP 225991 should also be included and we granted leave for this change to the description of the land.

4 Mr Gobbo sought leave to substitute amended plans prepared by Woods Bagot architects[2] that had been circulated in accordance with the Tribunal's Practice Note requirements. There was no objection to this request and we granted leave.

5 Mr Handfield advised he was appearing on behalf of a number of people and tabled a list as part of his submission. They included:

•

Each of the respondent objectors who lodged statements of grounds (except for Ms M Shauley);

•

Mr C Stevens of 4/8 Trenerry Crescent and the Collingwood Abbotsford Residents Association of 5 Trenerry Crescent who lodged a late statements of grounds; and

•

Ms S Lawrence of 27/8 Trenerry Crescent, G & A Sewell of 14/8 Trenerry Crescent and A Page of 28/8 Trenerry Crescent who lodged statements of grounds and section 60 applications to be joined as parties in response to the request to substitute amended plans; and

•

11 other owners/residents of the Byfas Building at 8 Trenerry Crescent who are not parties to this proceeding and have not sought leave to be joined prior to this hearing (B Hope, N Betts, R Lawler, C Rumney, C & B Kelly, F Stathakis, G Candy, G Day, M Koopman, S Bastin and T Zielinski).

6 The Council and Mr Gobbo had no objection to those persons who lodged late statements of grounds or statements of grounds in response to the amended plans being joined as parties to this proceeding and we granted leave for this to occur.

7 Mr Gobbo had no objection to Mr Handfield representing the other 11 owners/residents of the Byfas Building on the basis that they are considered submittors rather than being joined as parties to this proceeding. We advised Mr Handfield we agreed with Mr Gobbo's submission and would consider the additional owners/residents as submittors only.

8 The hearing took place over three days and we inspected the review site and surrounds after the hearing.

9 The review site is located on the northeast corner of Johnston Street and Trenerry Crescent in Abbotsford, approximately 250 metres west of the Yarra River. It has an area of 4,826 square metres with a Johnston Street frontage of 82.48 metres and a Trenerry Crescent frontage of 53.3 metres. The site also has an abuttal along its northern boundary to a 6 metre wide asphalt and bluestone laneway accessed off Trenerry Crescent known as Yarra Falls Lane.

10 The review site comprises some vacant buildings, vacant land, four deciduous trees, one crossover to Trenerry Crescent and two crossovers to Johnston Street. One of the existing buildings was originally used as part of a cable tram depot and most recently used as a factory/warehouse.

11 The review site has a fall in the order of 3 metres from the west to the east.

12 To the east of the review site, beyond the signalised intersection on Johnston Street, is a refurbished factory complex (including a heritage building known as the Yarra Falls building) with offices, some car parking accessed via Yarra Falls Lane and a five storey car park building, all of which is used by the business known as Computershare. The access to the car park building is available via a three lane wide access road and signalised intersection with Johnston Street. The review site has a carriageway easement over the access road, allowing it to utilise this road and the Johnston Street intersection for access. The review site and the Computershare property are affected by a section 173 agreement requiring VicRoads consent to increase the capacity of vehicles utilising this road and intersection.

13 To the south of the review site, on the opposite side of Johnston Street, are a mix of single and two storey houses and commercial buildings. Further to the southeast (accessible via some local streets off Johnston Street) is the Abbotsford Convent and Collingwood Children's Farm.

14 To the west, on the opposite side of Trenerry Crescent, is a two storey showroom and milk bar with commercial buildings generally situated between the review site and Punt Road. To the northwest of the review site is a residential area, whilst along Trenerry Crescent is a mix of residential and commercial land uses. The east side of Trenerry Crescent contains a series of large buildings built close to the street frontage.

15 To the north, on the opposite side of Yarra Falls Lane, is a heritage building known as the Byfas Building. It has a history of industrial use but was converted in recent years into 'warehouse style shells' that could be used for residential and/or office purposes. The Council and Mr Handfield advised these shells are being used as residential dwellings. To the rear (east) of this building is vacant land which has planning approval for the construction of an additional 49 dwellings with access via Yarra Falls Lane.

16 The proposal involves the demolition of the existing buildings on the site (for which no planning approval is required); the removal of the four trees on the site; the construction of a 4-5 storey building with 4 storeys fronting Trenerry Crescent and 5 storeys fronting Johnston Street; and the construction of a three level car park structure at the rear of the new building with access via the existing access road shared with the Computershare car park onto Johnston Street.

17 The new building will contain a café with 100 seats able to sell and consume liquor; 716 square metres of restricted retail floor space; and 8,755 square metres of office floor space. The new car park structure will provide 282 car spaces, motorcycle parking, bicycle parking and an internal loading area near the car park entry off the access road to Johnston Street.

18 The review site and other land situated on the north and south sides of Johnston Street between the Yarra River (east) and Nicholson Street (west) is generally zoned Business 3 under the Yarra Planning Scheme ('the Planning Scheme'). Planning approval is required under this zoning for building and works and to use land for the purposes of food and drink premises (including a café) and restricted retail premises.

19 Planning approval is also required for this proposal because:

•

A reduction in the car parking requirements at clause 52.06 is sought;

•

A shower is not provided in accordance with the bicycle requirements at clause 52.34 (although this is proposed to be addressed in the permit conditions);

•

Modifications are proposed to the loading bay requirements at clause 52.07; and

•

Permission to sell and consume liquor under clause 52.27 is sought.

20 The properties to the north of the review site and on the east side of Trenerry Crescent are zoned Business 5, Business 3 and Business 2. Land on the west side of Trenerry Crescent and further northwest is zoned Residential 1.

21 The review site and land generally situated between Trenerry Crescent and the Yarra River is affected by an Environmental Significance Overlay Schedule 1 ('ESO1'), and planning approval is required to construct a building, carry out works and remove the 4 existing trees on the site. Mr Rantino advised the Council had no concerns with the removal of the trees. We accept this advice and have not commented any further on this aspect of the proposal in the reasons for our decision.

22 There were a number of matters of concern expressed by the parties during the course of the hearing. In summary, the Council placed much emphasis on the content of the local planning policy framework in support of its refusal of this proposal, particularly in regard to the characteristics of the surrounding neighbourhood. The Council and Mr Handfield both argued the design was not respectful of the heritage significance of the Byfas and Yarra Falls buildings or the residential amenity of the Byfas building. VicRoads expressed concern that the traffic generated by this proposal will detrimentally impact upon Johnston Street, although the Council and the permit applicant disagreed with this.

23 We have considered all of these matters and find, generally, the proposed development and use of the land for offices, restricted retail premises, a café and associated car parking with access via Johnston Street is an appropriate design outcome. There are matters of detail which are of concern to us, but we are confident they can be addressed by appropriate permit conditions. The reasons for our decision are explained below.

24 Mr Kelderman referred to clauses 12 (Metropolitan Development), 14 (Settlement), 17 (Economic Development), 18 (Infrastructure) and 19.03 (Design and Built Form) as being the relevant policies in the State Planning Policy Framework, and this was generally accepted by the parties.

25 Mr Rantino took us through the local planning policy framework in some detail referring to eight separate clauses, being clauses 21.03 (Key Influences and Issues), 21.04 (Vision - Strategic Framework), clause 21.05 (Strategic Elements), 22.03 (Landmarks and Tall Structures), 22.05 (Location of Commercial/Industrial Activities), 22.08 (Protection of Biodiversity), 22.09 (Licensed Premises), and 22.10 (Built Form and Design). In addition, we were referred to the Heritage Overlay, the Heritage Review (a reference document) and the City of Yarra Built Form Review (a reference document).

26 Mr Rantino emphasised the various 'residential' references to the review site in each of the above clauses, albeit it is zoned Business 3. He acknowledged that it can be developed for commercial purposes (which includes industrial land uses) but submitted it needs to be respectful of the heritage buildings on either side, the amenity of the residential properties nearby and the intact low scale, fine grain character of the surrounds.

27 The Council's submission and the cross-examination of Mr Kelderman's evidence focussed greatly on the detailed content of the local planning policy framework. Whilst Mr Gobbo indicated a desire to rebut many of the details discussed by taking us to yet further details in the local planning policy framework that encourage commercial development on a site such as this, he resisted such rebuttal. Instead, Mr Gobbo referred to a previous decision of this Tribunal (consisting of Members Kearney and Keddie) in Port Phillip where they stated:

Rather than dismantling the planning scheme word for word, we feel that it is preferable to stand back and try and summarise what Council is trying to achieve.[3]

28 We adopt this approach, but have found this Planning Scheme sends mixed messages in this case. What Council is trying to achieve through the policy framework becomes lost amongst many layers of material, much of which is contradictory. For example:

•

Industrial and commercial uses are encouraged in marginalised industrial areas and along arterial roads, and there is acknowledgement such land uses are in high demand on high profile sites along arterial roads;

•

High standards of urban design and residential amenity are encouraged throughout the municipality;

•

The site is within a combined office/residential area in the Municipal Strategic Statement's ('the MSS') Strategic Framework Plan, but the words of the MSS suggest such areas are suitable for new residential development opportunities;

•

Maintaining the heritage character and low rise/human scale of this city is encouraged where this is a valued feature, but at the same time innovative, contemporary new development is also encouraged in particular areas and on large sites;

•

There are references throughout the local planning policy framework to marginalised industrial areas, former/ex industrial areas, business enterprise areas, combined commercial/residential areas, mixed use areas, mixed activity areas, redevelopment/reuse areas, commercial development strips, major redevelopment sites, high profile sites, large sites, key entry sites and sites on arterial roads - the review site can be interpreted as falling within any or all of the above depending upon the particular local policy, objective, strategy, guideline or strategic map; and

•

Medium to large scale office/commercial activities are provided for in Trenerry Crescent and a broad range of industrial, warehouse and high profile commercial land uses are provided for on land zoned Business 3.

29 What do we draw from this? The policy framework is supposed to provide a basis for understanding the planning controls and overlays that apply to land. In this case the review site and surrounding land to the east, west and south along Johnston Street is all zoned Business 3; the Byfas building is zoned Business 5 and land further north along the east side of Trenerry Crescent is zoned Business 3, Business 2, Business 5 and Business 3 respectively. Residential 1 zoned land is situated to the west of Trenerry Crescent. Clearly, the zoning of the surrounding area has a 'business' focus, particularly along both Johnston Street and Trenerry Crescent, with an established residential area situated behind. As such, we do not agree with the emphasis the Council has placed upon this area having a low scale residential context. Rather, we find the policy framework is supportive of medium to large and high profile commercial activities on this site.

30 Ms Hunt gave evidence that the proposal impacts upon the St Hellier's convent site (Heritage Overlay HO9) because both the review site and St Hellier's are part of the former Abbotsford industrial precinct so collectively they play a major role in understanding the meaning of this former industrial edge to the municipality. We are not persuaded by this evidence. The two properties are well separated by Johnston Street and other intervening private properties. Whilst St Hellier's has heritage recognition, it must be remembered that this site does not. The review site is not affected by a Heritage Overlay or recognised as having heritage significance at either a State or Federal level. What this site does have is an interface with Heritage Overlay HO314 to the north and east, which is a site specific Heritage Overlay for the Byfas and Yarra Falls buildings.

31 There was much debate during the hearing about whether the design of the proposed building is respectful of the heritage significance of the Byfas and Yarra Falls buildings, as well as the Victoria Park heritage precinct, which is situated to the northwest of this site. We are not concerned with the Victoria Park heritage precinct, which includes the residential area on the west side of Trenerry Crescent surrounding the former football ground, Victoria Park. The character and context of this precinct is distinct from Victoria Park and, further, separated from the 'business' character and context of the east side of Trenerry Crescent and both sides of Johnston Street.

32 This leaves us with Heritage Overlay HO314, the site specific heritage control relating to the Byfas and Yarra Falls buildings. Much emphasis was placed upon the architectural qualities of these two buildings and the existing industrial chimney located at the rear of the Byfas building. However, we note there is no statement of significance for the Byfas building that clearly explains why it is considered to be of heritage significance. Ms Brady explained the 1998 Heritage Review undertaken by Allom Lovell & Associates recommended the inclusion of the Byfas building as part of the Victoria Park heritage precinct (rather than as an individual heritage place), but for some unknown reason during the introduction of these heritage controls the Byfas building was incorporated into a heritage overlay with the Yarra Falls building (which was recommended to be an individual heritage place).

33 As previously stated, the review site is not affected by a Heritage Overlay and does not form part of Heritage Overlay HO314. This raises the question as to what it is about these heritage buildings that needs to be considered as part of the merits of this case. The Council referred specifically to a design guideline in the Built Form and Design local planning policy:

The height of new development abutting land in a Heritage Overlay should:

•

Adopt a façade height to the street frontage which is no higher than the adjacent building within the Heritage Overlay;

•

Design and site taller structures so that they do not visually dominate surrounding heritage places; and

•

Match the floor levels of the adjacent heritage building.

34 Mr Rantino suggested all of the design guidelines in the Built Form and Design local planning policy (a policy that is 21 pages long containing many design objectives and design guidelines) are prescriptive elements that should be considered in a similar manner as the requirements contained in, for example, a Design and Development Overlay or the objectives, standards and decision guidelines of clauses 54 and 55. We are not persuaded by this submission and instead rely upon the following:

i

The user guide at the start of the Planning Scheme states the local planning policy framework identifies long term directions about land use and development in the municipality; presents a vision for its community and other stakeholders; and provides the rationale for the zone and overlay requirements and particular provisions that form part of the scheme;

ii

The VPP Practice Note "Writing a Planning Policy" states local planning policies are statements of intent or expectation. They are not controls. However, they may contain decision guidelines for the responsible authority, and/or criteria or performance measures against which an individual application will be tested;

iii

The Practice Note goes on to state "it should be remembered that decision guidelines only require the responsible authority to give specific consideration to a particular issue or fact. Of themselves they should be 'policy neutral'. They will gain direction from the LPP objective under which they serve"; and

iv

The relevant objectives which the design guideline quoted in paragraph 33 serve state:

•

To ensure that the setbacks of new development complement the desired neighbourhood character of the area.

•

To ensure that the height of new development is appropriate to the context of the area and respects the prevailing pattern of heights of the area where this is a positive contribution to neighbourhood character.

•

To ensure new roof forms respect any prevailing roof forms in the area and contribute to the skyline silhouette.

35 In regard to the desired neighbourhood character, we have already found the policy framework is supportive of medium to large and high profile commercial activities on this site. Hence, we also find the setbacks (or, to be more specific, the lack of setbacks) of the proposed building from Trenerry Crescent and Johnston Street are complementary to the commercial nature of the surrounding locality, as existing commercial buildings in the surrounds generally have little to no setbacks.

36 We are of the opinion the overall height of the proposal, with the building form stepping up from the 3 storey rear car park building to 4 storeys on Trenerry Crescent and 5 storeys on Johnston Street is appropriate to the context of this area. As we have found there are commercial buildings in the surrounding locality and the policy framework is supportive of medium to large and high profile commercial activities, we do not agree with the Council that there is a prevailing one to two storey height pattern, particularly for the commercial component of the locality.

37 The Council and Mr Handfield submitted the height of the building on Trenerry Crescent should be respectful of the height of the brick parapet on the Byfas building, which forms part of the front façade. However, the overall height of this building also includes an addition that is setback from the original walls of the Byfas building and, from a distance, this addition is part and parcel of the overall building form. The 4 storey height of the proposed building is respectful of the overall building height of the Byfas building. The proposed height is not exactly the same, but it does not need to be as the two buildings are separated by Yarra Falls Lane, which is 6 metres wide, and the height of the proposed building neither overwhelms nor dominates the Byfas building, which is distinguished by its location at precisely where Trenerry Crescent changes direction. We are of the opinion the two buildings will read as two distinct elements, a distinction that is elevated by the modern lighter materials of the proposed building versus the predominance of heavy solid materials on the Byfas building. Nevertheless we consider that it would not be difficult to incorporate a transom in the western façade of the proposed building, which picks up on the parapet height of the adjacent Byfas building. We accept this would provide a visual connection to an important element of the Byfas building façade.

38 In regard to the relationship between the 5 storey proposed building on Johnston Street and the single storey Yarra Falls building, we agree with Ms Von Hartel's evidence that the two buildings will be read as independent structures, as they will be separated by a distance of about 22 metres (generally comprising the access road to the Computershare car park building). This distance is similar to the distance between the north and south sides of Johnston Street. There is infrastructure in the form of car access lanes and traffic lights in between the two buildings and we find they will read as two distinct elements in the Johnston Street streetscape.

39 In light of the way in which the Built Form and Design local planning policy should be interpreted; the separation of roads and infrastructure between this site and the Byfas/Yarra Falls buildings; and the distinguishing materials and finishes of the heritage and proposed buildings, we are satisfied the height of the proposed building is respectful of, and appropriate in, this locality.

40 Mr Handfield stated the height and appearance of the northern elevation of the proposed building creates a massive, visually intrusive and dominating presence, as well as a loss of light to some of the apartments, in the Byfas building.

41 Both properties have a business zoning which allows for the development of commercial buildings and we are of the opinion it is unreasonable to expect that a site adjacent to a 6 metre wide road in a business zone and adjacent to another business zone cannot construct a multi-storey building along its boundary with the road. We are satisfied with the heights and level of articulation of the proposed northern wall and do not consider that any modifications are necessary.

42 In regard to loss of light, the issue to be considered is daylight to existing habitable room windows. Mr Kelderman gave evidence that daylight into the windows of the Byfas apartments meets standard B19 in clause 55 (otherwise known as 'ResCode'), except for the eastern bedroom window in apartment 1 on the ground level. The closest point of the top level of the Trenerry Crescent side of the proposed building would need to marginally increase its setback in order to comply. However, it must be remembered that clause 55 is not applicable as the Byfas residential apartments are in a Business 5 Zone. It should also be remembered that the existing planning permission for the Byfas building was the approval of warehouse shells that could be used for either residential or office purposes; hence there is nothing to prevent any of these shells being used for office rather than residential purposes in the future.

43 Having said that, the extent of non-compliance with standard B19 is one bedroom window in one apartment; and it was pointed out that this window currently has an opaque film on it. Given the zoning, the opportunity for both properties to be used for commercial purposes and the current circumstances of this window (being a bedroom with a film on it), we are not persuaded that it is necessary or appropriate to alter the design of the proposed building in order to achieve total compliance with standard B19. On balance, we are satisfied an appropriate level of daylight is maintained into the Byfas building.

44 Mr Handfield pointed out a number of the apartments will lose views towards the Collingwood town hall clock tower and St Hellier's convent, both of which are heritage places. Mr Handfield questioned Ms Brady about this on the basis that the local planning policy framework encourages the protection of such views. We agree with Ms Brady that the protection of significant elements of heritage places from the public realm is what the Planning Scheme is seeking to achieve, and is not the protection of individual private views.

45 Mr Kelderman pointed out that there is no legal right to a view in the consideration of the planning merits of a proposal and we agree. In particular, we adopt the findings of Justice Kellam and Member Gilfillan in Juliano, Furletti and Scott and Ors v Melbourne CC (1999/19285) on pages 35-36:

... in a location where planning controls allow and encourage high or medium density developments, a view is something that is fortuitously enjoyed and cannot be the sole or even major determinant of what type of development may be permitted in adjacent areas. ... Secondly, in circumstances where planning controls apply and which encourage medium rise buildings, we do not conclude that there can be a reasonable expectation that a view will be retained particularly where preferred or prescribed height controls are in place (as in this case). ... The protection of private views in areas where high or medium rise buildings are encouraged would in our view cause significant inhibition upon development and would be opposed to the central thrust of current planning policy.[4]

46 The local planning policy framework seeks to ensure new development in areas of established and consistent urban character is respectful of existing streetscapes and neighbourhood character[5]. The Council placed emphasis upon this area having an established and consistent low scale/fine grain character that needs to be respected, based upon the small lot sizes found along much of Johnston Street and in the established residential area situated behind. We disagree. This interpretation of the character is narrow and does not give due recognition to the 'business' focus of Johnston Street and Trenerry Crescent or the local planning policy support for medium to large and high profile commercial development on this site.

47 There are a number of large buildings in the immediate surrounds and this site is a large site. As such, we agree with Mr Hutson that the site can sustain a new development of some substance, but we disagree with his suggestion that an appropriate building form is a podium of 3 storeys with upper levels setback. There are no such buildings (with podiums and upper levels setback) to be found along either Johnston Street or Trenerry Crescent; rather, there are robust, solid building forms of various styles and heights, built hard to the street edge.

48 We support a robust building form of the size, shape and height proposed on the review site. Where we have concern is in the detail of the design response so that it provides an appropriate level of articulation, particularly along Johnston Street. The ground level of the Johnston Street section of the building provides a restricted retail premises within what is effectively a two storey void space and we consider this to be a good design response. However, due to the slope of the site towards the east, the ground floor level is situated about 1.5-2.0 metres out of the ground at its eastern end and this is not a desirable outcome. Further, the framed façade of levels 1 to 4 is visually well above the height of the adjacent Yarra Falls building. We are of the opinion both of these design aspects can be improved by lowering the bottom of the framed façade and/or the ground level by 1.5 metres. By lowering the projecting part of the façade (this framed façade), the presentation of the Johnston Street section of the proposed building will be improved.

49 The Computershare car park was built a few years ago containing 310 car spaces with access to Johnston Street via a new signalised intersection. This followed an earlier planning permit (PL03/1392) for the development of a 925 car space car park of which 310 were allocated to Computershare and the rest intended for an unspecified development on the review site.

50 This proposal contains 282 car spaces that, combined with the Computershare car park, creates a total of 592 car spaces proposed to use the new signalised intersection. VicRoads has objected to this number of car spaces utilising the Johnston Street intersection. However, Ms Dunstan and Mr Walsh both pointed out in their expert evidence that this total number is significantly less than the 925 car spaces previously accepted by VicRoads.

51 Mr Graves explained VicRoads' main concern is the queuing of cars likely to occur in the morning peak period that will prevent buses travelling west towards the city from accessing the designated bus lane along Johnston Street. VicRoads based their submission on the work done by the company represented by Mr Walsh (Cardno Grogan Richards) and submitted an increase in queue length in the order of 100 metres, extending easterly toward the bridge across the Yarra River, will make it more difficult for buses to transition from the free flowing traffic stream to the designated bus lane.

52 However, Ms Dunstan gave evidence that the Cardno Grogan Richards traffic generation was different to (and higher than) the traffic surveys she had undertaken of vehicles accessing the Computershare car park. What this means is Mr Walsh's traffic movement calculations are more conservative and more likely to be a worst case scenario. Applying Ms Dunstan's survey results, Mr Walsh stated any increase in queue length is more likely to be in the order of 40-60 metres.

53 VicRoads' concern stems from the fact that Johnston Street's four bus routes form part of the principal public transport network, the efficiency of which the State Government wishes to improve. Mr Graves submitted this proposal "may compromise" the effectiveness of this network and VicRoads suggested a solution may be to split the proposed car park access between Johnston Street and Yarra Falls Lane. We do not agree with this suggestion as Yarra Falls Lane is only 6 metres wide and serves a 'local' access need for the Byfas building, the approved residential dwellings behind the Byfas building and an existing car park at the eastern end of Computershare. Further, cars from the review site would then need to traverse the Trenerry Crescent/Johnston Street intersection which is not signalised. In our opinion, such a traffic outcome is more likely to cause traffic delays and safety issues than having all of the traffic utilising the new signalised intersection on Johnston Street.

54 Mr Graves suggested permit conditions be imposed requiring the applicant pay $135,000 towards mitigation works if there is any increase of 20% or more on bus running times; however we consider such a condition is not appropriate or warranted. Ms Dunstan described the timing of the signals as "slow" and Mr Gobbo suggested the timing of the signals could be reviewed by VicRoads in order to maximise flow rates to assist the buses and we agree with this suggestion. The intersection was designed on the basis that it would accommodate significantly larger volumes of traffic than what is proposed here and we are not persuaded the development of the review site should be altered or prevented on the basis of this concern.

55 We have considered the submissions made by the parties about what the conditions of permit should be. Where we consider it appropriate, we have incorporated modifications to, or deleted, the Council's draft permit conditions.

For the above reasons, the decision of the Responsible Authority to refuse to grant a permit is set aside. It is ordered that a permit be issued subject to conditions.

[1] It is noted there is one Respondent Objector, Ms M Shauley, not represented by Mr Handfield

[2] The drawing numbers of the substituted amended plans are SK1000/B, SK2200/H, SK2200a/G, SK2200b/G, SK2201/H, SK2202/G, SK2203/G, SK2204/G, SK2206/F, SK3000/H, SK3001/E and SK3100/H.

[3] Refer to paragraph 36 of Hooper v Port Phillip CC [2005] VCAT 1136

[4] A finding also reiterated in 139 Chetwynd St Pty Ltd v Melbourne CC [2004] VCAT 44 and Stanley Street PL v Melbourne CC [2004] VCAT 928

[5] Clause 21.03-3 of the Local Planning Policy Framework