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[2006] VCAT 2345
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2006-11-20
Original judgment source is linked above.
Construction of nine storey building, Residential Hotel, Function Centre, Restaurant, Adequacy of car parking, Traffic generation, Potential for spillover car parking, Overshadowing, Overlooking
Iser v Manningham CC [2006] VCAT 2345
The responsible authority's decision is varied. The responsible authority must issue a permit in accordance with the Notice of Decision No. PL06/17521 dated 31 July 2006, but modified by:
(a) Inserting the term "flags and signage" within the description of the approval.
(b) Inserting a new sub-condition to condition 3(the Car parking and Access Management Plan), which shall read:
Not more than 200 persons (excluding staff) shall occupy the restaurant at any one time and not more than 200 persons (excluding staff) shall occupy the function centre facility.
Mr N Crawford of Best Hooper. Mr Crawford called evidence from Mr T Hardingham and Mrs K Partenio, Traffic Engineers
1 David Iser, Joan Iser and other residents lodged an Application for Review[1] against the decision of Manningham City Council which granted planning approval for construction of a nine storey building comprising residential hotel, function centre and restaurant with vehicle access to Doncaster Road and reduction in the car parking requirements at 682 Doncaster Road, Doncaster.
2 The Isers and others argued:
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The proposal is contrary to good and proper planning and is inconsistent with State and local planning policy in a number of material aspects.
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The proposal fails to make adequate provision for onsite car parking. The objectors were particularly concerned about Council's decision to grant a reduction in the statutory car parking requirements in respect of the hotel and submitted that the proposed reduction is based are flawed and the reduction is not justified.
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The proposal will result in creation of traffic problems and hazards in Doncaster Road and other streets in the vicinity of the land.
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The proposal will result in adverse consequences for the amenity of the area in the vicinity of the land.
3 Mr Rantino on behalf of Manningham City Council:
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The site presents a prime redevelopment opportunity located within a Principal Activity Centre with very good access to established physical and community infrastructure.
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The site is located in an area where the policy context provides a clear focus on mixed use and higher density residential land uses and enjoys significant strategic support from the planning policy framework and achieves compliance with the Design and Development Overlay.
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The long term vision for the Centre has been set out for high density mixed development which includes such uses as cafes and restaurants to activate the street frontage and complement the proposed boulevard character and the vision for a higher scale of development that takes advantage of the ridgeline location and incorporates clear podium and tower components.
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The Council inserted conditions which address car parking arrangements, including use of valets and limits on the maximum number of seats for the restaurant.
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The development should not result in any unreasonable traffic impacts on the local residential streets.
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The approved building is of substantially the same footprint and envelope as a previously approved apartment building.
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Any amenity impacts associated with the built form and use of the building such as overshadowing, visual bulk and overlooking would be similar to the existing approved building proposal.
4 Mr Crawford on behalf of the applicant made similar comment to Mr Rantino but also claimed:
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The design response presents a modern and articulated presentation to Doncaster Road and its environs in accordance with Council's strategic direction for the area.
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The evidence of Mr Hardingham and Mrs Partenio, Traffic Engineers, is that the proposal does not rely upon offsite parking in the locality.
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The planning controls and policies of Council have been established over a number of years through a detailed public participation process. The strategic direction of Council is clear and proposals such as are clearly contemplated by this direction and the statutory controls.
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The scale of the development, the recessive upper floor setbacks, and the reduction in roof plant underpin the considered approach by the applicant to ensure that there would be no unreasonable affect on the amenity of adjoining properties whilst also achieving an appropriate built form servicing the needs of the applicant and achieving the appropriate yield called upon by the location of the land.
i
Is the use and development appropriate having regard to the State and local planning policy framework and the specific provisions of the zone and overlay?
ii
Are there adequate car parking arrangements for this mixed use?
iii
Are there likely to be any off site traffic impacts to nearby residential land and Doncaster Road?
iv
Are there likely to be unreasonable amenity impacts?
6 It is proposed to develop a nine storey residential hotel above three basement car parking levels. The building will have a height of 33 metres although its maximum wall height is 29 metres. The residential hotel will comprise 140 rooms, and there is a function centre and associated facilities including a business centre and a restaurant with 200 seats. There will also be gym, spa and sauna facilities at roof level and a total of 123 car parking spaces. The building is set back at various distances from site boundaries, in additional to particular increase setbacks as described in Condition 1 of the Notice of Decision.
7 A new vehicle entrance will be provided together with a bus / vehicle drop off lane at the front of the site in Doncaster Road.
8 The design of the building is contemporary and the building is constructed of cement rendered walls of various colours, a Colorbond curved roof, glazed balconies with anodised aluminium frames.
9 The subject site is located within a Comprehensive Development Zone Schedule 1 under the Manningham Planning Scheme. The purposes of the zone are:
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To provide for a vibrant range of mixed uses that support the strategic role of Doncaster Hill Activity Centre.
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To increase the residential population within the Doncaster Hill Activity Centre by encouraging high-density mixed use development that primarily comprises residential accommodation.
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To provide for high-density residential development on individual sites in conjunction with a diversity of other uses including a mix of retail, commercial, social, community and entertainment uses.
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To encourage active uses and pedestrian generating activities to be located at street level, adjoining public urban spaces, boulevards, open space areas and pedestrian linkages.
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To provide for a mix of uses and a high level of activity that attracts people, provides a focal point for the community, creates an attractive and safe urban environment, increasing opportunities for social interaction.
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To provide for use of land that is consistent with the Doncaster Hill Comprehensive Development Plan, September 2004.
10 The site is located adjacent to a Road Zone Category 1 and it abuts a Residential Zone to the rear.
11 The site is also located within a Design and Development Overlay Schedule 6 (DDO6) and a Development Contributions Plan Overlay DCPO1.
12 The relevant purpose of the DDO6 is:
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To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
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To identify areas which are affected by specific requirements relating to the design and built form of new development.
13 A permit is required to construct a building or to construct access to a Road Zone Category 1.
14 No permit is required for "Residential Hotel" provided the use is in association with two other uses in Section 1 or 2. A permit is required for a "Restaurant" and a "Function centre" in the zone. Therefore the hotel component is an as-of-right use provided it is conducted with the two other uses.
15 A permit is required to construct a building or carry out works under Clause 43.02 (DDO6) of the Planning Scheme. This provision also requires that any new buildings and works must be constructed in accordance with requirements of the Schedule. There are various guidelines to this Schedule in Clause 43.02-5 which requires an assessment of:
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The design objectives of the relevant schedule to this overlay.
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The provisions of any relevant policies and urban design guidelines.
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Whether the bulk, location and appearance of any proposed buildings and works will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area.
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The layout and appearance of areas set aside for car parking, access and egress, loading and unloading and the location of any proposed off street car parking.
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Any other matters specified in a schedule to this overlay.
16 The DDO6 applies to the Doncaster Hill Activity Centre and its objectives are:
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To provide for high-density development that supports the strategic role of the Doncaster Hill Activity Centre as the location for sustainable, contemporary, vibrant mixed use development.
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To encourage the use of contemporary architecture combined with innovative urban design and building techniques incorporating ecologically sustainable design principles.
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To step down built form within the boundaries of the Doncaster Hill Activity Centre to create a transition between the higher density and larger scale developments of the Doncaster Hill Activity Centre and the traditional residential scale of the surrounding neighbourhood.
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To achieve development that provides a distinctive sense of identity for each precinct in the Doncaster Hill Activity Centre.
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To create treed boulevards framed by podiums, consistent front setbacks and a high quality landscape treatment along Doncaster, Williamsons and Tram Roads.
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To encourage active street frontages and pedestrian generating activities along public urban spaces, boulevards, open space areas and pedestrian linkages.
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To achieve development of circulation networks that focus on providing strong linkages within the Doncaster Hill Activity Centre, and enhance pedestrian and bicycle users' amenity.
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To achieve development that provides accessible, safe, attractive and functional private and public open space opportunities, which are well connected and integrated within a permeable urban environment.
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To encourage development to either incorporate urban art into its built form or provide a form of urban art within open space areas adjacent to the building or, contribute to the provision of urban art.
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To encourage built form that capitalises on key views and vistas including to the Dandenongs, the Kinglake Ranges and the central Melbourne skyline.
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To preserve solar access in mid winter to the key boulevards of Doncaster Road and Williamsons Road so as to contribute to a comfortable, pedestrian friendly urban environment.
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To facilitate the enjoyment of public urban spaces, streetscapes, pedestrian and bicycle paths by ensuring that these areas are not excessively overshadowed or affected by wind tunnelling from new buildings or works.
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To encourage consolidation of land that facilitates the creation of viable development sites capable of achieving the outcomes promoted by the Scheme for land within the Doncaster Hill Activity Centre.
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To discourage the fragmentation of sites other than in association with a development proposal that achieves the outcomes promoted by the Scheme for land within the Doncaster Hill Activity Centre.
17 There are a number of design requirements relating to maximum building height, design element height and front setbacks which are mandatory and cannot be varied.
18 In this precinct the following design requirements are applicable:
• Maximum building height 0 29 metres
• Design element height (5.8 metres above the maximum building height)
• 5 metre setback from podium edge to front boundary
• 9 metre setback from tower edge to front boundary
• 4.5 metre setback from side boundaries
• 5 metre setback from rear boundary
19 The precinct to the south of the subject site seeks a transitional scale between the higher intensity development to the north along Doncaster Road and the lower scale, residential areas to the south. In this sub-precinct he maximum height is set at 14.5 metres.
20 The Development Contributions Plan Overlay 1 requires that any permit granted must be consistent with the provisions of the Contributions Plan. There is a nominal amount which has been inserted in conditions on the permit.
21 Car parking provisions are found at Clause 52.06 where a permit is required to vary or reduce the nominal car parking amount in the Table to that clause. The proposal generates a total statutory car parking requirement on 347[2] car parking spaces. As the proposal provides 123[3] on-site car spaces a planning permit is required to reduce or waiver these requirements.
22 There are various State and local planning policies of relevance in this application[4]. These were extensively referred in Mr Rantino's submission and the Council Officer's report which shall remain on file.
23 At the review hearing each party tabled and read from detailed written submissions and provided oral commentary. I was provided with photographs of the subject site and general neighbourhood, planning scheme maps and documents, locality plan, shadow diagram, cross section, plans and elevations of the previous approved development, and graphic depiction of the proposed development.
24 Following the review hearing I undertook an inspection of the subject site and general neighbourhood including Short Street, Hepburn Road, Whittens Lane and the small shopping centre west of Whittens Lane.
25 I received further correspondence after the review hearing but I have not considered any of these. I did not direct or request any further correspondence.
Consistent with State and local planning policy directions
26 Mr Iser was highly critical of the Council's decision to approve the proposed development and argued that the proposal does nothing to achieve the primary aim of policies identified in the State Planning Policy and Melbourne 2030 to achieve additional dwellings to accommodate the perceived demand in the period up to 2030. He argued that unlike the previous permit for a 41 residential apartment building with retail and commercial facilities, this proposal does nothing to provide additional dwellings.
27 During the hearing I remarked that the proposed Residential Hotel came within the definition of "Accommodation" which is a Section 1 use in the zone. So it is beyond my power to examine or determine the appropriateness of the Hotel use when it is conducted with two other uses permitted in the zone.
28 This area has been the subject of substantial strategic planning review by the Manningham City Council and Independent Panels. Amendments C33 and C45 to the Manningham Planning Scheme culminated in changes to the zoning of the land to Comprehensive Development Zone and modification to the Local Planning Policy Framework and planning controls applicable to the land including:
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Amending Clause 21.05 - Urban Design
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Inserting a new Clause 21.21 - Doncaster Hill Activity Centre
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Introducing Clause 22.13 - Doncaster Hill Activity Centre Sustainability Management Plan
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Introduction of a Design and Development Overlay Schedule which introduced new height and building setbacks controls
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Rezoned the land from a Business 2 Zone to a Comprehensive Development Zone
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Incorporated the Doncaster Hill Comprehensive Development Plan into the planning scheme through Clause 81
29 The strategic documents for the Doncaster Hill Activity area are reinforced by sophisticated and extensive statutory planning provisions in the Comprehensive Development Zone and the Design and Development Overlay.
30 The message about the Council's strategic planning initiatives is clear when Deputy President Gibson and Member Naylor[5] reiterated the decision of Member Keaney[6].
[29] ... The Tribunal believes that Council is entitled to have that strategic view. It is a view which has been publicly tested. It is a view which has been considered by a Planning Panel. It is a view now sanctioned by the State Government. Under new format planning schemes therefore it is a policy position of some importance which should only be overturned for very good reason. The Tribunal is not in a position of reviewing the merits of that policy; it is simply trying to implement it.
31 This proposed usage meets a number of the purposes of Comprehensive Development Zone Schedule 1, including:
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To encourage active uses and pedestrian generating activities to be located at street level, adjoining public urban spaces, boulevards, open spaces areas and pedestrian linkages.
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To provide for a mix of uses and a high level of activity that attracts people, provides a focal point for the community, creates an attractive and safe urban environment, increasing opportunities for social interaction.
•
To provide for use of land that is consistent with the Doncaster Hill Comprehensive Development Plan, September 2004.
•
To provide for a vibrant range of mixed uses that support the strategic role of Doncaster Hill Activity Centre.
32 This proposed nine storey building incorporates three uses which can operate independently or in conjunction with each other. The restaurant provides an active frontage to Doncaster Road. The result produces a mix of uses which is clearly anticipated in local policy and the provisions of the Comprehensive Development Zone.
33 The Design and Development Overlay (DDO6) provides for a number of design requirements including:
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maximum building wall height of 29 metres
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provision for design elements of 5.8 metres above maximum building height
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5 metre setback from podium edge to front boundary
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9 metre setback from tower edge to front boundary
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4.5 metre setback from side boundaries
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5 metre setback from rear boundaries
34 The proposed building, meets all of the above provisions with the exception of the side setbacks and the applicants seek modification to this requirement on the basis that the building form is similar to that previously approved by the responsible authority and which is still alive and its site context. From my observation the building has remarkably high levels of compliance with the stated purposes and provisions of the DDO6. The one area of non compliance is minor in the context of the site's location next to an historic church and offices and this deficiency does not lead to off site amenity to adjoining residential properties.
35 Whilst the initial impact of the development will be substantial on abutting properties, particularly to the south this aspect of the development meets the required setback distances in the overlay. The Council itself anticipated the form and extent of development in DDO6 and applied a separate DDO precinct in the residential area to the south which will provide for a transition in built form between the higher order development along Doncaster Road and the residential hinterland beyond.
36 The proposal therefore responds to the detailed set of planning outcomes sought by Council and achieves a very high level of compliance with all of the aims of local planning policy that must be considered, including the built form and a mix of uses to complement the strategic role of the Doncaster Hill Activity Centre.
37 Mr Iser suggested that the gym and lap pool which are in the rooftop area above the 29 metre wall height should be omitted from that area and relocated to a lower level. From my observation these features fit snugly into the curvature of the roof design feature which itself camouflages the lift overrun and plant room functions. The gym and lap pool do not in any realistic way add to the bulk or massing of the building above the nominated 29 metre building height. They seem a logical and sensible use of the roof top area without in any way diminishing from the integrity of the building or the intent of the nominated 5.8 metre maximum design element height.
38 Mr Iser and other objectors were particularly concerned about Council's decision to grant a reduction in the car parking requirements for the hotel.
39 Mr Crawford on the other hand relied on the evidence of two traffic engineers who came to similar conclusions which are best summed up in Mrs Partenio's evidence:
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The proposed supply of 123 spaces plus an additional valet service in parking aisles is considered to be appropriate having consideration to the relevant decision guidelines.
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The proposed car parking layout is generally consistent with the dimensional requirements as set out in the Manningham Planning Scheme and the Australian/New Zealand Standard for Off Street Parking.[7]
40 During the hearing there was some difference in estimated number of car spaces required for the development and these were corrected and rationalised by the two traffic engineers. It also is apparent from reading the traffic reports that the greatest dispute arose from differences in calculating the restaurant and function centre uses. Most debate arose from the discrepancy or difference in the floor area calculation for a function centre. If one was to apply the floor space calculation for the reception centre which was eventually agreed to as 447 square metres, then about 134 car parking spaces would have been required for that activity. However, if the maximum number of patrons for the reception centre is 200 then the car parking generation is about 60 spaces.
41 Having regard to the evidence of both witnesses who preferred to rely on a patron rate rather than a floor space calculation, I consider it is appropriate to insert a new sub-condition within the Parking Management Plan section of Condition 3 which limits the number of patrons in the function centre to 200. I have also used a similar number for the restaurant because both uses have similar generation rates.
42 I acknowledge the Council imposed Condition 11 which places a maximum number of seats at 200, but I consider the Parking Management Plan needs to clearly distinguish that the generation rate is more closely determined by the number of patrons in each use.
43 There were some comments about the possibility of patrons parking across the road in the Council car park in front of the Civic Centre. Access to the Civic Centre is possible via an underground pedestrian walkway. I understand the applicant is prepared to make a contribution towards some upgrading of this subway entrance but I do not consider it is necessary to rely on the off-street parking in that facility for this proposed development. Some patrons may use it on the basis of opportunities that may arise but I do not consider it is necessary or appropriate to rely on the Council car park to supplement car parking deficiencies or any perceived deficiencies of this site.
44 I acknowledge that in a mixed use development of this kind there is likely to be a number of efficiencies of scale in the use of car parking facilities whereby patrons from the hotel and reception centre may also use the restaurant at various times of the day. On the other hand, both the restaurant and reception centre facilities are intended to function independently of the hotel use at times. In fact it is a precursor of the nature of the Section 1 use that they are considered as separate functions.
45 So whilst on paper there is a theoretical generation of 347 car parking spaces, on balance I consider that a partial reduction of the number of spaces is justified particularly having regard to:
a
sharing of car parking facilities,
b
application of a parking management plan,
c
the ability to place 10 car parking space in car stackers, and
d
the proposed valet service, particularly at peak operating times when functions are likely to commence.
46 I consider the responsible authority was correct to allow a dispensation to the extent that it did. I note that the applicant did not oppose any of the conditions and has implemented a number of measures, such as a proposed bus lane outside the site in Doncaster Road to primarily service the hotel.
47 Mr Iser questioned the ability to enforce any such limitations. He referred to a case and claimed that Novatel hotel in Glen Waverley had exceeded the stated limits in their planning permit conditions, with the inference it was likely that any controls inserted in this permit could be breached. If there are such breaches to the maximum number of patrons this can be detected by examination of the function centre booking arrangements and the matter can be enforced before the Tribunal under the Planning and Environment Act 1987.
48 However judging by the documentation about the Novatel permit tabled at the hearing that the parking arrangements associated with the Novotel Hotel in Glen Waverley are somewhat different some uses and related car parking provisions are related to the construction of a public car park that has subsequently been extended. In addition the Novatel was part of a greater entertainment complex, involving cinemas, gaming facilities and a much larger component of food and drink premises. Car parking, traffic and access issues were treated differently. It therefore can be distinguished from this proposal.
49 Mr Iser raised concern about potential traffic conflicts in Doncaster Road and surrounding residential streets. Traffic consideration can really be divided into to parts; potential traffic conflicts in Doncaster Road which is a metropolitan arterial road carrying 20000-30000 vehicles per day and traffic issues in residential streets behind the site.
50 The evidence of Ms Partenio was that the site is expected to generate up to some 30 and 615 vehicle movements in any peak hour and daily respectively; and there is adequate capacity in the surrounding road network to cater for the traffic generated by the proposed development.
51 Similarly, Mr Hardingham's conclusions were:
•
The peak parking demand of up to 118 spaces on most days and evenings throughout the year will be readily accommodated by the provision of 125 parking spaces on site.
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On the up to 10 occasions throughout the year when a higher peak parking demand of up to 133 spaces is anticipated to occur, additional on site parking for up to 20 spaces in tandem can be provided at the end of the existing parking aisles by the use of the valet parking. This equates to a total on-site parking provision of 145 spaces, which is more than adequate to cater for the occasional higher peaks.
•
The additional traffic flow generated by the proposed development is expected to have a minimal impact on traffic flow in Doncaster Road and the surrounding road network.
52 Both witnesses were of the view that the development will not rely on on-street parking in either Doncaster Road or in residential streets to the south of the subject site.
53 The applicant proposes a drop-off lane at the front of the site for tour buses, ambulances, fire trucks, taxis and special services. The plan of this access change has been approved by VicRoads, and in many regards, improves vehicular access to and from the site compared to the current access arrangement. When I visited the site I found the current in/out loop tight, and whilst it was serviceable for individual car movements, the proposed double accessway at the western edge of the site, together with the drop off lane provides better inward access. It essentially provides a defacto taper when the lane is not in use.
54 I examined car movements along Doncaster Road and I noted that it was in a 70km speed zone. Vehicles seemed to move in an orderly and safe manner. This observation seems consistent with the observations of both traffic engineering witnesses.
55 The development has no direct access to properties to the south and does not rely on vehicle access to residential streets beyond the site. I do not see reason for a vehicle, related to this site to rely on access to residential streets to the south. There may be an odd occasion when a vehicle associated with this development parks in Short or Hepburn Street, but I do not see any reason that this should be the norm.
56 Similarly I see no reason for vehicles in this development to seek access to the southern residential area, simply because there is such good access to arterial and collector roads nearby.
57 It is acknowledged that the proposed building will have some off-site overshadowing implications to properties to the south of it. The Council has previously approved a similar sized development on this site which would have cast a similar shadow to this development. Further the Council anticipates broad redevelopment of properties to the south of it as part of the Doncaster Hill Strategy and the various provisions of the DDO. It is therefore unreasonable to expect conventional "Rescode" siting standards on a nine storey apartment or residential hotel building in an Activity Centre which has been designated for intensive form of redevelopment.
58 Similarly, overlooking has been addressed to ensure that the usual standards in Rescode are met although it would be expected with a development like this that distant overlooking would be part of the normal phenomena for an intensively developed Activity Centre.
59 There has been a modification to the description of the approval to include signage and flags. The flags and signs were referred to in the application plan and in fact there are conditions on permit which seek to modify them. These conditions were not opposed by the applicant. Accordingly, this minor matter has been included in the approval.
60 During the hearing there were also discussions about whether the description of the use should address liquor licence matters under Clause 52.27. I confirm my initial response that I believe that a separate planning permit will be needed for a liquor licence. This may be a procedural matter but nonetheless, it is a separate issue which an individual proponent to each activity can address during the construction phase.
61 For the abovementioned reasons the responsible authority's decision is varied. Essentially, the responsible authority's decision is affirmed. There is one critical modification to the car parking requirement by placement of a maximum limit on patrons to the function centre and restaurant uses to ensure that there is some manageable control of parking associated with them.
62 The Council has a vision for the Doncaster Hill Activity Centre and it has pursued this in a comprehensive overhaul of its planning policies and provisions including extensive consultation and assessment by an independent panel. The Council is clearly saying this is an area of substantial change where it anticipates a different built form to that of the residential hinterland beyond.
63 The responsible authority's decision is based on sound reference to the State and Local Planning Policy, the provisions of the Comprehensive Development Zone, and the DDO6.
[1] Under Section 82 of the Planning and Environment Act 1987
[2] The generation rate was corrected by traffic witnesses at the hearing.
[3] 125 car spaces, but two spaces are substantially undersize and were discounted, in addition the responsible authority required 10 car spaces in "car stackers".
[4] Clauses 11, 12, 14.01, 15.12, 17.02, 18.12, 19.03, 21.05, 21.07, 21.14, 21.15, 21.21, 22.13
[5] Doncaster Road Property Partnership v Manningham C.C. [2004] VCAT 2445(8 December 2004)
[6] Mitchell v Port Phillip City Council[2002]VCAT 452 (11 VPR 127)
[7] Extract of summary of opinion Mrs Kate Partenio, GTA Consultants Expert Report dated 19 October 2006
Iser
Manningham CC [2006] VCAT 2345