Jopsal Pty Ltd v Melbourne CC [2009] VCAT 2534

Jopsal Pty Ltd v Melbourne CC [2009] VCAT 2534 - VCAT 2009 case summary — Zoe

[24]

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.
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.
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.

[29]

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).
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.
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.
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.

[33]

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).
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.
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.

[41]

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.
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.
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.

[43]

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.
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.
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.
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.
All garbage and other waste material must be stored in an area set aside for such purposes to the satisfaction of the Responsible Authority.
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.
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.
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.
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.
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.
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.
No loudspeaker, amplifier, relay or other audio equipment may be installed or used outside the building.
Not more than 20 seats may be present in the licensed café at any one time without the written consent of the Responsible Authority.
The licensed café premises may be open between the following hours:

At a glance

Court

Decision date

Before

Source

Judgment (50 paragraphs)

Jopsal Pty Ltd v Melbourne CC [2009] VCAT 2534 (27 November 2009)

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