1. The decision of the Responsible Authority is set aside.
2. In permit application TP-2008-999, a permit is granted and directed to be issued for the land at 33-43 Batman Street West Melbourne in accordance with the endorsed plans and subject to the conditions set out in Appendix A. The permit allows:
   • Part demolition, buildings and works in a Heritage Overlay;
   • Buildings and works and to use land for the purpose of a café in a Mixed Use Zone;
   • The sale and consumption of liquor;
   • A reduction in the standard car parking requirement; and
   • A waiver of the requirement to provide a loading bay facility.

Mr J Gobbo QC instructed by Best Hooper solicitors.

• Mr C Fraser, architect, to explain the proposal;
• Mr P Lovell, heritage consultant of Lovell Chen;
• Mr M Negri, town planner of Contour Consultants; and
• Mr J Walsh, traffic engineer of Cardno Grogan Richards.

Mr H Jackson, barrister instructed by Ms B Ryan of Melbourne City Council

• Ms M Gould, heritage consultant of MGA; and
• Ms S Merat, urban designer of Melbourne City Council.

The site is on the south side of Batman Street, between King and Spencer Streets in West Melbourne.

It has a frontage of 30.35m, a depth of about 50m and a total area of approximately 1,520sqm.

It is currently occupied by a circa 1940s single storey engineering factory building of moderne style. Vehicle access into the building is provided through a central, single width access from Batman Street.

The surrounding area contains a mix of land uses, building heights and styles.

TP-2005-1236 was issued on 4 December 2006 and has been extended so it will expire on 4 December 2010. This Permit allows partial demolition and alterations to the existing building and use as 22 offices with a partial waiver of the standard car parking requirement.

Section 77 Planning and Environment Act 1987

Cl 32.04-1 & 32.04-7 To use land as a food and drink premises (café) and undertake associated buildings and works in MUZ

Cl 32.04-5 To construct two or more dwellings on a lot in MUZ

Cl 43.01-1 To demolish a building, construct a building and construct or carry out works in HO770

Cl 43.02-2 Buildings and works not in accordance with the 6 metre podium setback requirements set out in the Table in DDO33

It is proposed to demolish all but the front 8.5 metres of the existing building, the eastern side wall and part of the sawtooth roof. A new 14 storey building will be built in place of the demolished section.

The new building will be 40 metres high. Overall, the development contains:

• Parking for 112 cars provided at basement, ground, first and second floor levels;
• A caretaker's apartment retained at the first floor level of the existing building;
• A café with 20 seats is provided on the ground floor;
• 135 new apartments of 50-65sqm with 28 having no car parking.

The front façade and front section of the existing building is retained and a new tower featuring predominantly glass on three sides with a rear sculptured concrete façade is to be constructed. Mr Fraser described the design of the new building as a simple form with the lowest tower level setback about 10 metres from the front façade. The upper levels of the tower overhang this level (with an approximate 8 metre front setback) to create a deliberately dark element to separate the old and new elements of this development.

1. This is an application to review the decision by Melbourne City Council ('the Council') to refuse to grant a permit for the proposed apartments in a new 40 metre high building with an existing caretaker's apartment and a café in part of the existing building at 33-43 Batman Street, West Melbourne.
2. The Council received 7 objections to the planning application and the Tribunal has received 4 statements of grounds from objectors in response to this review application. The matters of concern to the objectors include the height of the building and podium setbacks; impacts upon the amenity of nearby residents; the appropriateness and reflectivity of the proposed glass facades; the reduction in car parking provision; the waiver of loading bay requirements; the traffic impact; and the appropriateness of a licensed café.
3. The Council refused the proposal because it is not consistent with key elements of the Design Guidelines for Higher Density Residential Development or relevant Heritage and Urban Design local planning policies; is an overdevelopment of the site and has an inappropriate car park layout at basement and ground floors.

1. The Council acknowledged the Municipal Strategic Statement ('the MSS') in the Planning Scheme envisages a moderate degree of change (as distinct from no change or significant change) in this area of West Melbourne with the following amenity principles applying:
   • Ensure a high level of on-site amenity for future occupants of new residential developments.
   • Ensure that reasonable access to daylight, sunlight and privacy is maintained for neighbouring residential properties.
   • Ensure that development does not undermine the significance of any identified Heritage Place or Precinct.
   • Ensure that the form, bulk and scale of new development considers the potential future built form and land use on adjoining sites.
2. The key issue of concern to the Council in this case is whether the proposal is respectful of the heritage significance of HO770, as is sought in DDO33 and the relevant local planning policies. However, before turning to this, it is important to understand part of the planning control context within which I am considering the merits of this proposal:
   1. DDO33 allows for buildings up to 40 metres in height, hence I agree with Mr Gobbo that references to "transition" and "moderate change" expressed in the MSS clearly contemplate buildings in the order of 40 metres in height in this area of West Melbourne;
   2. Pursuant to DDO33, a permit is only required for the proposed building and works[1] because the 6 metre podium setbacks from the side and rear boundaries of this site are not met; and
   3. The decision guidelines and built form outcomes to be considered in determining whether the reduced setbacks are appropriate include:
      • Development provides a transition to adjoining lower scale heritage buildings by the use of podiums and upper level setbacks.
      • Building setbacks that strengthen the pedestrian scale and focus of the area ...
      • Whether the height of any new development or the height of its podium will adversely effect the heritage significance of any adjoining heritage building, including the grading of the building as listed in the Heritage Places Inventory 2002.
3. However, as a building that is 40 metres high with 6 metre podium setbacks from all boundaries is effectively 'as of right'[2], it can therefore be concluded that such a height and setbacks achieve a new built form outcome that will not adversely affect the heritage significance of any adjoining heritage building.

The Effect on the Heritage Significance of this Site and Precinct

1. HO770 is a small precinct containing about 4 properties in Batman Street and 1-2 properties in Jeffcott Street that Ms Gould described it as a cluster of early twentieth century buildings. I agree with Mr Lovell's description of the precinct - that it is simply a group of co-located buildings. Neither Ms Gould or Mr Lovell expressed the view the proposal will adversely affect the heritage significance of the precinct. However, Mr Jackson submitted at a broader scale, looking at the whole of DDO33, Heritage Overlays affected scattered properties and small precincts and:
   • None of the existing or permitted towers are on Batman Street;
   • Batman Street has a lower scale of built from than Jeffcott Street, Latrobe Street and Spencer Street;
   • With one exception, none of the buildings are subject to a Heritage Overlay; and
   • Most of the buildings do not even adjoin sites subject to a Heritage Overlay, or if they do, there is either greater comparability in scale, greater setbacks or heritage buildings viewed from different street perspectives to that of the tower.
2. Mr Jackson submitted the Planning Scheme requires the scale of the existing building on this site and the scale of Batman Street and the area covered by HO770 to be respected in a manner that is not achieved by this proposal.
3. The fact that this site is affected by a Heritage Overlay does not mean it cannot accommodate a new building, and in particular a new tower. I agree with the findings of Member Hewet in Rush v Melbourne CC [2009] VCAT 2211[3] that there exists a clear tension within the Planning Scheme through the application of both a Heritage Overlay and a Design and Development Overlay, which seek to achieve completely different outcomes. I acknowledge the Explanatory Report[4] for the introduction of the DDO controls in West Melbourne states the DDO controls reinforce the MSS identification that heritage places be protected, but it also states:

The objectives and outcomes within the revised Design and Development Overlay 33 have been drawn from the Council's built form vision for this part of West Melbourne, and also, where relevant, draw on the land use strategies. The proposed introduction of discretionary height controls seek to give direction about the scale of development that is considered appropriate to achieve the transition in scale between the Central City and the lower areas of West Melbourne.

1. As a building that is 40 metres high with 6 metre podium setbacks from all boundaries is effectively 'as of right' in DDO33, it can therefore be concluded that such a building achieves a new built form outcome that is appropriate and will not adversely affect Batman Street or the significance of the HO770 heritage precinct.

1. This site contains the highest graded building in the HO770 precinct, as it is graded B. Ms Gould described the existing building as a large factory building with a sophisticated face brickwork moderne façade, that is quite rare for an industrial/factory building. Ms Gould and Mr Lovell were in agreement that the B grading of the building is primarily because of its front façade treatment. However, Ms Gould is also of the view an associated component is the size of the factory building and that it is necessary to retain a reasonable portion of it in order to understand the relationship to the elaborate façade. She wants one bay in width (approximately 4.5 metres) along the length of the building kept, but acknowledged this may necessitate its removal and reinstatement as part of this proposal. I am not persuaded this is necessary as I agree with Mr Lovell that:
   • The issue is the heritage significance of the front façade of the existing building and hence its streetscape presence;
   • Retaining one bay along the length of the building will not be distinguishable from the street; and
   • Retaining the east side wall is beneficial and desirable as it will have some limited visibility from the street due to the current setback of the adjoining building (albeit Mr Lovell acknowledged it could be hidden from view in the future if a new building was constructed adjacent to it).
2. Ms Gould submitted the aspects of heritage significance that are affected by this proposal are:
   • A very tall building set close to the frontage (8-10 metres) with small side setbacks;
   • A building that is much taller than the existing building;
   • It is a transition area, not the central city hence a podium approach is not appropriate; and
   • The heritage place is overwhelmed by the tower.
3. I reiterate my earlier comments that a building that is 40 metres high with 6 metre podium setbacks from all boundaries is effectively 'as of right' in DDO33. As such, it can be concluded this height and setbacks achieves a new built form outcome that will not adversely affect the heritage significance of a heritage building.
4. In this case, the front setback actually exceeds the 6 metre setback specified in DDO33. The side setbacks are in the order of 4.2 metres and 5.0 metres, and I agree with Mr Lovell they are sufficient to maintain the presence of the front façade in the streetscape and to separate it from the tower. The rear setback is just over 3 metres and I am of the opinion it has no impact on the heritage significance of the front of the existing building. Overall, I agree with Mr Lovell the existing building and the tower visually appear as two separate and distinct elements. I am satisfied the proposal will not adversely affect the significance of the heritage place.

1. There was one matter of detail that arose during the hearing, being the garage door in the front façade. Ms Gould wanted it retained and Mr Lovell acknowledged its retention is desirable but not necessary. He suggested it could remain there in an 'up' position in perpetuity, which is and has been a common occurrence on this site to date. I find the garage door should be retained and will therefore require a permit condition for a note to be added to the front elevation to give effect to this. Mr Gobbo stated it may need to be stored elsewhere during the construction stage, and this is an acceptable course of action.

1. Mr Jackson submitted the proposed tower building needs to respond to its context and called Ms Merat, one of Council's urban designers, to give evidence that the minimum podium setback requirements have been imposed to protect the development potential of adjacent parcels of land, ensure a level of separation between buildings, and reduce bulk. I have no concern about building bulk in this city fringe location that has a planning control (DDO) that allows for towers of up to 40 metres 'as of right'. I agree with Mr Gobbo the non-compliance with the side and rear setbacks is inconsequential as effective separation between properties can still be achieved with like setbacks if either of the adjoining properties are further developed.

1. Ms Merat was critical of the rear elevation that contains sculpted concrete panels, stating it is under designed and lacking in architectural interest. Mr Fraser described this rear elevation as having a similar chiselled design to that of the glass elevations but solid elements are being used because of their thermal benefits. He described the rear façade as sculpturally quite strong.
2. I am of the opinion the glass facades are modern, interesting and appropriate to this context. Indeed, this simple but effective design is one of the reasons I find the proposal is worthy of approval. However, I am of the view the rear elevation is quite different to the balance of the new building. Mr Negri acknowledged the rear elevation will be visible in Jeffcott Street and so it needs to have sculptural elements, but I am not persuaded the chiselled design will be a visible detail from Jeffcott Street, which is reasonably separated from the rear of this site. Mr Gobbo acknowledged the rear elevation does look like the back of the building and suggested it could be changed to include more glazing if I considered it appropriate. I do, so I have imposed a condition requiring modifications to the rear elevation to include more glazing.

1. Mr Senyard lives in Jeffcott Street and is separated from the rear of this site by a laneway and a reasonably sized substation. His main concern with this proposal is the overshadowing of his rear first floor living room and internal courtyard between 12 noon and 2pm in September (Equinox) and June (winter).
2. I have not considered the winter shadow impact because the 'test' applied in the Planning Scheme is the Equinox rather than winter as it is the 'middle ground' in terms of shadow impact - it is not the best case or the worst case. Mr Negri acknowledged there will be some shadow cast onto Mr Senyard's rear living room window, but stated the key consideration is daylight access into that room, which remains sufficient. I agree the shadow impact sought to be addressed in the Guidelines for Higher Density Residential Development focuses upon private open space areas, and I am satisfied the shadow impact on Mr Senyard's property is not unreasonable, particularly in the context of DDO33 that contemplates tower(s) of 40 metres.
3. Mr and Mrs Henley expressed concern that the glazing of the north façade will direct considerable reflection towards the townhouses at 40 Batman Street (opposite the site). The Council's draft permit conditions seek to deal with this by imposing a requirement that the glazing not reflect more than 15% of visible light when measured at an angle of 90 degrees to the glass surface. Mr Gobbo advised the proposal seeks 19% reflectivity as the range of reflectivity in glass is generally in the order of 15-25%. He submitted there is no science behind the Council's condition, but in turn I find there was no clear explanation as to why 19% is sought or necessary, and what impact, if any, this degree of reflectivity could have on the surrounds including Mr and Mrs Henley's property. Accordingly, I have decided to adopt Mr Jackson's submission that this condition be left as is because the degree of reflectivity can be varied but must be to the Council's satisfaction. If there remains any dispute between the Council and the Applicant about the degree of reflectivity, it is a matter that can be determined in the future by the Tribunal.

1. The retention of the front façade in its entirety understandably creates some design constraints in how the car parking, waste and services can be accommodated on the site. The central driveway will be retained for vehicle entry and exit, and it is narrow (4.2 metres wide) so vehicles will need to give way to each other when entering and leaving the site. Mr Jackson expressed concern about this but Mr Walsh gave evidence the likelihood of vehicles meeting on the site is minimal[5]. As the car parking is all resident car parking, they will become familiar with the arrangements and I am satisfied installation of flashing warning lights and signage (as suggested by Mr Walsh) will assist.
2. I am satisfied with Mr Walsh's responses to the Council's particular concerns about the design of car spaces 16, 17 and 25 on level 2 and car spaces 17 and 36 on level 1, and have imposed conditions to deal with these matters.
3. Mr Jackson expressed concern about the potentially dangerous interaction between pedestrians, bicycles and vehicles in the car park, but again I find these areas will be utilised by residents and they will become familiar with the arrangements.

1. The proposal seeks approval to reduce the standard car parking requirements. It is proposed to provide one car space for the café staff, 111 car spaces for the residential apartments (which means 28 apartments will not have a car space), and no on-site visitor car parking.
2. Mr Senyard and other statements of grounds expressed concern about the reduction. Mr Senyard pointed out the on-street car parking is well used during the day by businesses in the area and is well used on weekends and evenings when there are events, particularly football, on at the stadium in Docklands.
3. The Council has not raised any concern with the amount of car parking provided. Mr Fraser explained the apartments are small (50-65 square metres) and are designed for people who work or wish to live close to the central city. This is an inner city location, and I am satisfied it is appropriate to reduce the car parking provided in this location. I agree with Mr Walsh the café is small and likely to serve a local clientele, hence a reduction in the standard parking requirement is warranted. Overall, I am of the opinion an appropriate level of car parking is provided.

1. Some of the statements of grounds raised concerns about the traffic generated by this proposal. Mr Walsh has concluded the traffic generated by this development will have no significant impact on Batman Street or the surrounding road network; and the Council has raised no concerns with this aspect of the proposal. Accordingly, I do not share the concerns expressed. I similarly have no concern with the proposal to waive the loading bay requirement for the café. It is small in size and it is possible for loading to occur safely from the street.

1. One statement of ground expressed concern about introducing another drinking venue into an area that already has 3 cafes and one licensed pub within 300 metres.
2. Permission is sought for a small café containing 20 seats. Mr Negri supported the Council's draft permit condition that the hours of use be between 7am and 11pm Sunday to Thursday and 7am to 12 midnight Friday and Saturday. He stated the proposed café does not create a cumulative impact as it is a small venue likely to be patronised by the local community. It has an internal control created because it will share the entry to the residential apartments; and its capacity is physically constrained within the building (by existing walls and the residential entry foyer) in any event. On balance, I am satisfied the proposed café is appropriate and will not have a detrimental impact upon the surrounding community. I will require one minor internal change so that access between the café and toilet is internalised rather than requiring café patrons to traverse through the residential foyer.

1. The proposal achieves a good design response to retaining the old heritage fabric and introducing a new tall building element behind. I find the design is simple and the setbacks are effective in ensuring the primary heritage fabric of the building is protected and maintained. I am satisfied the proposed new building will not adversely affect the amenity of nearby residential properties and does not impact upon the development potential of adjoining properties. The other concerns raised by the Council and surrounding residents/properties have been adequately dealt with through the detail of the design and the conditions to be imposed on the planning permit. Therefore, I find a permit should issue subject to appropriate conditions.

Partial demolition of existing building and construction of a 14 level building, use of part of land as a licensed café, reduction of standard car parking requirements and waiver of loading bay requirement in accordance with the endorsed plans.

The permit must contain 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 plans submitted with the application but modified to show:
   • (a) A note added to the front elevation that the existing garage roller door will be retained.
   • (b) Modifications to the rear elevation to include more glazing.
   • (c) Clarification of the walls and levels around the stores between car spaces 35 and 36 on Level 1 to improve accessibility and increase at least one of the car spaces to a width of 2.7 metres.
   • (d) A note added to car spaces 16 and 17 on Level 2 that they are for small cars only.
   • (e) Inclusion of a pedestrian door on the east side of the stairwell on the ground level to provide direct access between the lobby and car park.
   • (f) Modifications to the café layout to provide internal access between the café and toilet without requiring café patrons to traverse through the residential foyer.
   • (g) Deletion of the doors to the bicycle racks in the basement level and replacement with one security door at the south end of bicycle store and storage cage area.
   • (h) A schedule and samples of all external materials, colours and finishes showing the materials, colours and finishes of all external walls, roof, fascias, window frames, glazing types, doors, balustrades and paving.
2. The use and development as shown on the endorsed plan(s) must not be altered or modified without the prior written consent of the Responsible Authority.
3. Prior to the commencement of the development, including demolition, a detailed construction and demolition management plan must be submitted to and be approved by the Responsible Authority. This construction management plan is to be prepared in accordance with the City of Melbourne - Construction Management Plan Guidelines and is to consider the following:
   • (a) Public safety, amenity and site security;
   • (b) Operating hours, noise and vibration controls;
   • (c) Air and dust management;
   • (d) Stormwater and sediment control;
   • (e) Waste and materials reuse; and
   • (f) Traffic management.

Prior to the commencement of buildings/works other than demolition works, the applicant must provide an environmental site assessement report by a suitably qualified expert. The report must include recommendations as to whether the history of the site and the proposed use of the site requires that an environmental audit ought to be undertaken pursuant to the Environment Protection Act. If no environmental audit is required, the report must provide recommendations about the management of any potentially contaminated land during and after construction. The report will form part of this permit and the applicant must comply with the recommendations to the satisfaction of the Responsible Authority.

1. The dimensions and layout of access lanes must be in accordance with the requirements of Australian Standard AS 2890.1-1993, Parking Facilities, Part 1: Off-Street Car-Parking or be to the satisfaction of the Responsible Authority.
2. Ramp grades and head clearances within the car-park must be built in accordance with the requirements of Australian Standard AS 2890.1-1993, Parking Facilities, Part 1: Off-Street Car-Parking or be to the satisfaction of the Responsible Authority.
3. Before the occupation of the development, a traffic management plan must be prepared and implemented to the satisfaction of the Responsible Authority. It must describe the installation and operation of the warning system and signage for vehicles accessing the car park levels and entering and exiting the property and must be generally in accordance with the expert evidence of Mr Walsh (Job Number CG108616) dated 3 August 2009.
4. Any mechanical exhaust systems for the car park must be sound attenuated to prevent noise nuisance to the occupants of the building and surrounding properties to the satisfaction of the Responsible Authority.
5. All garbage and other waste material must be stored in an area set aside for such purposes to the satisfaction of the Responsible Authority.
6. No garbage bin or waste materials shall be deposited or stored outside the site and bins must be returned to the garbage storage area as soon as practicable after garbage collection.
7. All service pipes, apart from roof down pipes, must be concealed from the view of a person at ground level within common areas, public thoroughfares and adjoining properties.
8. Glazing materials used on all external walls must be of a type that does not reflect more than 15% of visible light when measured at an angle of 90 degrees to the glass surface or a suitable alternative % to the satisfaction of the Responsible Authority.
9. The Owner of the site must construct a drainage system, incorporating water sensitive urban design features within the development and make provision to connect this system to the Council's stormwater drainage system in accordance with plans and specifications first approved by the Responsible Authority, Manager, Engineering Services.
10. The Owner of the site is not permitted to alter the existing footpath/road levels in Batman Street for the purpose of constructing new vehicle or pedestrian entrances without first obtaining the written approval of the Responsible Authority, Manager, Engineering Services.
11. The noise generated by the licensed premises must at all times comply with the requirements of the State Environment Protection Policy, Control of Music Noise from Public Premises No. N-2, to the satisfaction of the Responsible Authority.
12. No loudspeaker, amplifier, relay or other audio equipment may be installed or used outside the building.
13. Not more than 20 seats may be present in the licensed café at any one time without the written consent of the Responsible Authority.
14. The licensed café premises may be open between the following hours:

Any extension of these hours will require separate planning approval.

1. No bottles or other waste material may be removed from the licensed café premises between the hours of 9.00pm and 7.00 am the following morning seven days a week.
2. This permit will expire if one or more of the following circumstances apply:
   • (a) The development is not started within two years of the date of this permit; and/or
   • (b) The development is not completed within four years of the date of this permit.

The Responsible Authority may extend the dates upon which this permit expires only if it receives a request in writing before the permit expires, or within three months afterwards.

[1] Clearly there remain other reasons why a permit is required including constructing two or more dwellings on the site and to demolish and build in a Heritage Overlay.

[2] Which means no planning permission would be required under DDO33

[3] Specifically his observations at paragraphs 29 and 31 to 32

[5] Mr Walsh stated there may be a conflict in 1 in 100 vehicle movements