Jefferies v Melbourne CC [2010] VCAT 1711

Jefferies v Melbourne CC [2010] VCAT 1711 - VCAT 2010 case summary — Zoe

[12]

The amenity principles in table 4 to clause 31.05 include:
- Ensure that the height and bulk of new buildings responds to site context including the prevailing neighbourhood and heritage character;
- Ensure that development does not undermine the significance of any identified heritage place or precinct; and
- Ensure that neighbouring properties are not adversely affected by the scale and bulk of the development.
The objectors expressed concern about visual bulk, which is related to the height and setbacks of the building. Mr Walker submitted on behalf of the Council that the proposal fails to comply with clause 55 standards relating to the street setback, the 9 metre building height, and the side setback to the north.
I agree with Mr Peake this site is unusual as it has three street frontages and only one abutting property. In Buncle Street, the east side has a more utilitarian character containing predominantly fences and walls as it generally forms the back boundary to Melrose Street properties. Given this existing context, I have no concern about a building on this site being built to the street frontage. In Alfred Street, there are no immediately adjoining properties as it is separated on each side by Buncle Street and Melrose Street. As such, I am satisfied that a building along the street frontage is appropriate[2]. Mr Walker submitted the building should have a front setback that accords with the cottages fronting Melrose Street to the north of this site. These cottages generally have a 2 metre setback to the front façade with the verandahs extending approximately 1-1.2 metres into that setback. I note apartments 4 and 5 are provided with courtyards adjacent to Melrose Street that have a depth of approximately 1.1 to 1.2 metres. The inclusion of these front courtyard spaces creates a similar streetscape pattern to that of the cottages, but I acknowledge the front setbacks differ to those of the cottages. As this is a new building on a corner site, I am of the view some variation in the Melrose Street frontage setback is appropriate, and therefore I find the provision of the courtyards with the setbacks proposed to apartments four and five is an appropriate design outcome.

[13]

The Heritage Overlay requires consideration as to whether the proposed building will have an adverse impact upon the significance of the heritage place. Mr Raworth gave evidence there is no statement of significance for the Racecourse Road/Alfred Street North Melbourne heritage precinct. I note that it is a small precinct, and Mr Walker described it as containing residential properties as well as commercial properties fronting Flemington and Racecourse Roads. Mr Raworth focussed on the residential component, particularly Alfred and Melrose Streets. Overall, he described this heritage precinct as being unified by its fine collection of Victorian and Federation building stock, leafy established gardens, wide streets lined with mature street trees, garden squares, a mix of land uses and hilly terrain. Under cross-examination, Mr Raworth explained his reference to leafy established gardens focuses upon properties on the north side of Alfred Street and in George Street.
Mr Raworth described this site and the section of the heritage precinct that it is located in as "unusual". This is because this section of the precinct is, in his opinion, of low integrity and significance because each of the frontages to Alfred, Buncle and Melrose Streets have little to no heritage significance and contain low or ungraded buildings immediately surrounding the site[3]. Mr Raworth explained the Council undertook a review of E and F graded buildings a number of years ago and either removed them from heritage overlays or upgraded them to a D grade. The parties agree that the fact there remains a number of E graded buildings around this site appears to relate to the fact that this area of the City of Melbourne was previously part of another municipality at the time this review was done. What this means is the Heritage local planning policy has very limited requirements that are applicable to either E graded or ungraded buildings. For example, the Heritage policy does not require the retention of an E graded or ungraded building, which means there is the possibility any of the cottages to the north of this site along Melrose Street could be demolished (subject to obtaining a planning permit).
What I have taken from this situation is that much of the area around this site could change over time, including second storey additions or demolition, given there are limited requirements in the Heritage local planning policy applicable to E graded or ungraded buildings. As such, I do not agree the local planning policy framework seeks the preservation of the area surrounding this site when all of the relevant planning policies are balanced in favour of net community benefit and sustainable development.
I am persuaded by Mr Raworth's evidence that there are two key aspects of the design that need to be considered in terms of their impact upon the significance of the heritage place. These are the scale of the building and the details/materials of the building.

[14]

Mr Raworth submitted the proposed building scale is reasonable because the three storey height is of a similar scale and height to the two storey buildings found at the corner of Flemington Road and Melrose Street and on Mr Costello's property. In addition, it is a corner site and is located opposite high rise former housing commission buildings. Under cross-examination Mr Raworth explained he considers a three storey building is a modest change in height and scale, particularly when a Victorian built form characteristic is for there to be no transition (stepping) between a one and a two storey building. Mr Raworth used the example of the relationship between Mr Costello's house and the house next door on the corner of Buncle Street. Mr Costello's house has a sheer two storey wall that is higher than a modern two storey building would be. I am persuaded by Mr Raworth's evidence that a stepping of the proposed building to create "a wedding cake effect" would be at odds with the building scale and building height relationships found in this heritage precinct. I accept a stepped building form is at odds with the Victorian characteristics within the key streetscapes of this precinct, being Alfred and George Streets. Hence, whilst a three storey building per se may seem at odds with the one and two storey residential buildings in Melrose, Buncle and Alfred Streets, I find the overall building height is not dissimilar to the "taller" heights of Mr Costello's house and the hotel building on the corner of Melrose Street and Flemington Road.
I did consider whether the northern setbacks should comply with the relevant clause 55 standard, but I am persuaded by Mr Raworth's evidence that it is not appropriate to create a wedding cake effect in this heritage precinct. The setbacks provided from the northern side boundary will not have an adverse effect either upon the amenity of these cottages or upon the significance of the heritage place. Similarly, I find that the overall building height and form will not have an adverse effect on the significance of the heritage place.

[16]

Mr Walker explained the Council is concerned that the height of the building, the 100% site coverage, the lack of permeability and the lack of landscaping does not retain the low scale built form character, including front gardens and fine grain, generally single fronted dwellings. Similarly, he submitted there are no three storey buildings within this portion of the heritage precinct.
Clause 21.05 seeks to preserve the existing built form character by, amongst other things, ensuring the height and bulk of a new building responds to the site context including the prevailing neighbourhood character. Within this neighbourhood are a large number of small properties containing houses and associated outbuildings that cover a significant proportion of the respective site area. This is evidenced by, for example, the adjoining property to the north (175 Melrose Street) that is a single storey, single fronted house built over the entirety of the property save for the front setback (of about 2 metres) and the rear courtyard (approximately 3 metres by 2 metres in area). I agree with Mr Bromhead and Mr Raworth that the dominant landscape features in this area are the street trees. As such, I am not concerned about the 100% site coverage or the lack of permeability and landscaping.
In regard to the building height, the plans illustrate an overall building height of about 9 metres with building services extending above. Mr Marianni questioned the accuracy of the 9 metre height given the lack of detail in the plans regarding the relationship between the natural ground levels and the floor levels. The key concern in this part of Mr Marianni's submission was the relationship between the car spaces, the car stacker and the natural ground level. Mr Peake submitted the width of the driveway (about 13 metres) enables an adequate fall and cross-fall to ensure the car spaces can be appropriately accessed, and Mr Fairlie agreed with this. However, Mr Peake also submitted it may be necessary to relocate the car stacker to the southern end of the car spaces to deal with the change in levels. Mr Fairlie agreed with this, but expressed the view the car stacker is not really needed, particularly for a part time employee (being a cleaner). I agree with Mr Fairlie that the car stacker is not necessary in order to provide a space that is only going to be used on a short term basis by a cleaner attending the premises for a few hours each day. Hence, if I was of a mind to grant a permit, I would require the car stacker to be removed. As such, an overall building height of 9 metres should be achievable as proposed. I agree with Mr Peake and his expert witnesses that this height is appropriate in this neighbourhood.

[19]

In regard to item iii above, Mr Fairlie acknowledged under cross-examination that a lower rate of car parking is to be expected for a serviced apartment in the CBD. As such, I am not persuaded that reliance on this data is comparable to the serviced apartments proposed in this case. In addition, I note the information was collected in 2001, nine years ago, which was a matter of concern to both the Council and the residents. Mr Fairlie's response to this was to state that he presumed the car parking rate is now "likely to be lower". However, he did not provide any material/data to support this presumption.
In regard to item ii above, Mr Fairlie relied on data collected in 2003 (seven years ago) for a larger facility with 46 apartments and 19 on-site parking spaces. Mr Fairlie's evidence is that 30% of the apartments were occupied by guests requiring a parking space for either a personal car or a hire car. This equates to 0.3 of a car space per serviced apartment, a rate that Mr Fairlie stated is generally accepted by the Tribunal.
Whilst I acknowledge a rate of 0.3 of a car space per serviced apartment is one that 'rings a bell with me', I took it upon myself after the hearing to have a look at previous Tribunal decisions in an effort to locate a number of decisions where the Tribunal had clearly stated it accepted the rate of 0.3 per room. Whilst there are a number of Tribunal decisions that accepted a level of car parking provision (eg. by specifying a number of spaces), it was unclear whether they had accepted specifically a rate of 0.3[8]. Also, it is a general statement to say the Tribunal has accepted something. It could be, for example, that the car parking provision was not a matter disputed by the parties in a case, which means the Tribunal may well have not specifically determined that aspect of a proposal. Hence, I am not persuaded by the evidence presented (items ii and iii above) that the rate of 0.3 is generally accepted by the Tribunal.
The Council and the residents questioned the appropriateness of comparing CBD and Chapel Street locations with this North Melbourne location. The locational characteristics in terms of proximity to the hospitals or universities or other activities of interest combined with the availability of public transport or ease of access to major highways or freeways could all be factors that have an influence upon the car parking needs of a serviced apartment building in a particular location. Hence, I am not persuaded that the reliance on the CBD and Chapel Street serviced apartments surveys is comparable to the activities and public transport facilities surrounding this site.

[20]

Finally, Mr Fairlie has relied upon a questionnaire that was prepared by his office but completed by his client (or his client's staff) over eight days at what Mr Fairlie says he was told is a nearby serviced apartment facility (also run by his client) with a 90% occupancy. I was advised that this facility contains 18 rooms, hence 90% is about 16 rooms. During cross-examination, Mr Fairlie was unable to answer questions by the Council, the residents and myself about the content of the questionnaire, how it was undertaken, and how many questionnaires were completed. As a result, Mr Fairlie was required to attend the hearing for a second time to present further evidence in relation to these questionnaires.
Mr Fairlie advised 17 questionnaires were completed over an eight day period. In response to my question as to how 17 corresponded with a 90% occupancy (about 16 apartments) over eight days, Mr Fairlie stated his client advised there were "some international doctors and nurses staying for some months". There is no evidence of this based on the surveys that were undertaken as 14 (82%) stated they were staying a couple of days and 3 (18%) stated they were staying one week. Hence, I am not persuaded this survey includes all of those people staying (i.e. the 90% occupancy). In addition, only a small number of surveys were completed and I agree with the Council that that creates the opportunity for a significant margin for error in the results.
Mr Fairlie stated in his written evidence that 35% of the guests arrived by car, but when he gave oral evidence-in-chief for the second time he indicated that that was incorrect and there were in fact 3 guests (18%) that travelled to the apartments by car. However, the questionnaire asked whether the person filling it out had travelled to the apartments by car as a driver or as a passenger. It is possible that, for example, if there were multiple people travelling together, one person completed the questionnaire and they may have been a passenger. In fact, the results show another 3 guests said they were a passenger. Again, I acknowledge this is a very small figure in a small survey. However, if one was to presume that a car was used in both circumstances, this equates to 36% or 0.36 of a car space per apartment.
Mr Fairlie advised that he had been instructed this other serviced apartment building charges $10 a day to park a car in one of the 10 car spaces available. He also advised that he was instructed four of the ten spaces were occupied that day (of this hearing). I asked Mr Fairlie if he had any information about whether paying to park was a disincentive that resulted in car parking not being used in serviced apartment developments. In practical terms, Mr Fairlie acknowledged that it may be a disincentive but he was not aware of any examples, and stated that it is common practice to pay to park in a serviced apartment development. However, there is no material/data before me to support this opinion.
What this all means is that I am unable to conclude, based on Mr Fairlie's evidence, that this proposal will generate a car parking requirement of 0.3 of a car space per serviced apartment. I agree with the Council that the empirical analysis undertaken is insufficient.

[21]

To assist the parties in the event that another planning application is sought for serviced apartments on this site, I will make further findings on the basis that an empirical analysis of 0.3 could be substantiated.
The provision of 0.3 car spaces per apartment means this development needs to provide six car spaces for its guests. Mr Fairlie is also supportive of a car space being made available for the manager of the facility, and Mr Peake advised me that the manager would be on site between 7.00 am and 8.00 pm seven days week. Given these hours, I agree that it is desirable for a car space to be provided for the manager. I also agree with Mr Fairlie that it is not necessary to provide a car space for a part time cleaner. The restricted car parking, such as the four hour car parking in the centre of Alfred Street, could be used by part time employee(s).
The proposal provides four on-site car spaces for guests, which means that two guests will be required to find car spaces on the street. In addition, the incorporation of a 13 metre long crossover results in the loss of two on-street car spaces in Buncle Street.
Mr Fairlie's surveys show car parking on the east side of Buncle Street is at or near capacity for much of the day and the evening. The parking restrictions in Buncle Street are significant[9] and appear to ensure there is the opportunity for resident parking. None of the parties, including Mr Brennan, were aware of any particular reasons as to why the restrictions were more significant in Buncle Street than in surrounding streets, but Mr Brennan explained he has lived there since 1975 and it is a very busy area with a commuter parking issue.
Mr Fairlie's evidence report did not address the loss of the on-street car parking. Through his oral evidence-in-chief and cross-examination, Mr Fairlie stated he supported the provision of long term parking on this site rather than short term parking on the street. He also stated the loss of resident spaces could be catered for on the north side of Alfred Street, which has 2 hour parking restrictions but again allows residents to park for longer. Mr Peake and Mr Fairlie argued that if this site was developed purely for residential purposes, a similar loss of on-street parking would be likely along Buncle Street. It may be that the replacement of an on-street resident space with an on-site resident space is a reasonable argument, but it is not relevant to this case before me[10]. Rather, what is proposed here is to replace two resident car spaces with four car spaces allocated to a private development that cannot be used by residents; and the car parking spaces on-site (4 spaces) will not meet the peak parking demand of six car spaces. Hence, overall, there will be a further demand on other car spaces within the surrounding streets in the order of four car spaces[11]. Hence, the question in my mind is is this a reasonable outcome given the general acknowledgment by the parties of the high utilisation of car parking throughout this area.
I think this question is best answered having regard also to the proposed layout of the car parking in the form of a 13 metre long crossover. Mr Fairlie stated this proposal is the most efficient car park because otherwise more of the ground floor would be needed to provide a car park within the development accessed via a single or double crossover. However, Mr Fairlie did not say that it could not be done. Hence, I am not persuaded the proposed provision of four guest spaces is appropriate due to the 13 metre long crossover and the loss of two on-street car spaces in a street that has limited car parking already. Any new design for this site should turn its mind to providing more car parking on the site whether it be at ground floor level or at basement level. The car parking provided should cater for the manager or for the identified peak parking demand based on a satisfactory empirical analysis.

At a glance

Court

Decision date

Source

Judgment (31 paragraphs)

Parties

Cases Cited (1)

Jefferies v Melbourne CC [2010] VCAT 1711 (21 October 2010)