Kingsley Down (Cowes) Pty Ltd v Bass Coast SC [2004] VCAT 2643

Kingsley Down (Cowes) Pty Ltd v Bass Coast SC [2004] VCAT 2643 - VCAT 2004 case summary — Zoe

[14]

2 Several matters were dealt with at the commencement and during the course of the Hearing that we record below.

3 At the commencement of the Hearing, Mr Stewart sought leave to amend the name of the Applicant for Review to "Kingsley Down (Cowes) Pty Ltd (in liquidation)". There being no objection to the request to amend the documentation we granted leave to make the necessary amendments pursuant to the provisions of the Victorian Civil and Administrative Tribunal Act 1998.

4 At the commencement of the Hearing, there was objection by Objectors to the late service of witness statements and the inclusion of revised façade details prepared by Perkins Architecture in Ms Peterson's evidence ("the Perkins design"). After some discussion, we ruled that we would receive the evidence but agreed with the parties to vary the order of proceedings. Ms Peterson was called to give her evidence after the Council's submission and prior to the submissions by Respondent Objectors. We indicated that, at the conclusion of the Hearing, any party could request leave from the Tribunal to file supplementary submissions if they felt disadvantaged by the material. No party sought to take up that opportunity.

5 During the course of the Hearing, it was noted by Mr Mason that no permission had been sought for the proposal under Clauses 52.06 and 52.07 of the Bass Coast Planning Scheme and we also drew attention to Clause 52.17. To the extent necessary, we granted leave pursuant to the provisions of the Victorian Civil and Administrative Tribunal Act 1998 to amend the permit application to clarify the permissions sought, in addition to the use and development of the land as a motel/conference facility and removal of vegetation under the Vegetation Protection Overlay (Schedule 2).

6 We record that a letter of 15 November 2004 was received by the Registrar from a Mr R K Brown in relation to the proceeding. As leave was not granted for further submissions the material has not been considered.

[15]

7 The description of the review site is largely the same as considered by us in a previous Application for Review[1]. The following draws from our reasons in that Application. The site comprises two properties, being No. 114-122 Thompson Avenue and No. 89 Church Street, on the south-west corner of those streets. The land has a frontage to Thompson Avenue of 80.5 metres, a frontage to Church Street of approximately 121 metres and a total site area of around 9,754 square metres. The fall across the land is around one metre. The subject site was previously occupied by a motel comprising single and two storey structures. Other uses associated with the motel included a restaurant, tennis court and swimming pool. The land at No. 89 Church Street was previously occupied by a single storey dwelling. The subject land is now partly used as a car park by the Council by lease while the redevelopment of the land is being considered. The remainder of the land is otherwise vacant, except for a stand of mature Eucalypts located to the south-west of the site. There are several other Eucalypts on the property, including two trees abutting the Church Street frontage, as well as a cypress along the east boundary and some palm trees.

8 Residential properties abut two boundaries of the site. To the west, at No. 91 Church Street, is a two storey dwelling with a lantern style feature atop. It has an open garden and large shed to its rear. Other residences are located further to the west along Church Street. Part of the southern boundary of the subject site abuts single and double storey dwellings with frontage to Hollydene Court.

9 A petrol station also abuts the southern boundary of the subject site and has frontage to Thompson Avenue and Hollydene Court.

10 To the north of the subject site, on the north side of Church Street, is St Philip's Anglican Church, a dwelling (set well back from the street and with extensive planting in the front setback) and a masonic lodge.

11 The subject site is located to the south of the Cowes main retail and activity precinct. It is within a section of the business area with some retail outlets, public and community uses, and other activities such as petrol stations. The scale of development is one to two storeys, with the canopy of golden cypress trees along Thompson Avenue being a defining feature. Thompson Avenue is the main street into that precinct and terminates at the foreshore reserve/The Esplanade. Church Street is a collector road.

12 Recent development in the wider area includes tourist accommodation facilities on The Esplanade and Steele Street that comprises three or more storeys. A permit issued in 1999 allowing a 54 room motel development on the subject site has expired.

[16]

13 It is proposed to develop the land for a five star resort hotel including conference facilities, retailing, two restaurants and associated facilities. A total of 126 rooms is proposed within a four storey building. The plans show accommodation in the form of 91 one bedroom units, 30 two bedroom units, 1 four bedroom unit and 4 penthouses.

14 A ground level restaurant (seating area of 251 square metres with 150 seats) is proposed to the north-east corner (street intersection). A second smaller restaurant of 161 square metres with 50 seats is proposed on the upper level (level 3). Conference room facilities, a gym, recreation area and indoor pool are shown at ground level. A deck at roof level is also proposed.

15 Ground level open space, a swimming pool, play area and tennis court are provided to the south and central areas of the subject site, involving the retention of the stand of Eucalypts.

16 Seven shops are proposed along the Thompson Avenue frontage, with a bin store to the south of shop 7, adjacent to the southern boundary. The retail premises are proposed to have an area of around 764 square metres.

17 A basement car park for 145 spaces is proposed. Access is shown via Church Street in addition to a porte corchere with bus parking. A loading bay is provided from the same access point adjacent to the kitchen to the hotel. In addition, a 9 space staff car park is proposed at ground level off Church Street adjacent to the western boundary. The plans also provide for on-street angle parking along part of the Church Street frontage of the subject site (in place of parallel parking at present) and along Thompson Avenue.

18 The elevations are not dimensioned. As described by Ms Peterson, the height would vary from 14 - 14.4 metres along the Church Street façade. The ground level setback would be mainly around 14 metres. The first and second floors would be partly cantilevered to a minimum of around 9.8 metres (excluding balconies) increasing to 18 metres (excluding balconies). Other than a stairwell and kitchen, the fourth level would be recessed mainly by around 4.5 metres. The setback from the western boundary would be 9.1 metres at first floor level (the building being partly cantilevered over the staff car park) increasing to a minimum of 13.65 metres at the second floor and 16.35 at the upper level.

19 The height along the Thompson Avenue façade would be 14.6 - 15 metres. The setback from Thompson Avenue would be 6 metres at ground level reducing to 5.4 metres at the first and second floors. Balconies at the upper levels extend into this setback area so that the setback from the title boundary would be 1.8 metres. The upper most level would be setback by 9 metres with larger balconies aligning with the outer edge of those below.

20 The building would partly abut the southern boundary at the eastern part of the site at first floor level and then step back from this boundary at the upper two levels.

21 A circular balcony element is proposed to the Thompson Avenue/Church Street corner with the design adopting a flat roof with parapet. Design details include central tower elements, portholes and sails. A detailed landscape plan has not been prepared although the proposal includes the retention of the group of Eucalypt and two Eucalypt to the north-west of the site. An LPG gas tank is located close to the driveway to the staff car park.

22 During the course of the proceedings, we have been referred to possible changes to the façade treatment through the evidence of Ms Peterson. The plan attached to her evidence shows a treatment prepared by Perkins Architecture. Those plans are retained on file and have been taken into account. In addition, Ms Peterson recommended modifications to the north-west section of the fourth level (Church Street wing) to delete part of that portion of the building (mainly associated with penthouse 1) to provide a greater transition to the residential area to the west. That option has also been considered as have relatively minor changes to the basement layout referred to by Ms Donald including the necessary addition of disabled parking.

[17]

23 The subject site is substantially contained within a Mixed Use Zone pursuant to the provisions of Clause 32.04 of the Bass Coast Planning Scheme ("the Scheme"). That Zone aligns with the land known as No. 114-122 Thompson Avenue. The remainder of the site, at No. 89 Church Street, is located in a Residential 1 Zone under the provisions of Clause 32.01 of the Scheme. In both Zones, a permit is required for the use of the land as a motel, shop and restaurant for buildings and works associated with those uses.

24 A Vegetation Protection Overlay (Schedule 2 Phillip Island) applies to the lot at No. 89 Church Street, but not to the remainder of the site. The schedule to the Overlay states that the vegetation protection objective to be achieved is "To protect and enhance all existing vegetation on Phillip Island". Permit requirements are set out at Clause 42.02 and Schedule 2.

25 Car parking requirements are set out at Clause 52.06. Specific car parking requirements are set out for hotel, restaurant, shop and place of assembly uses. The decision guidelines of Clause 52.06-1 require a range of matters to be considered if an application seeks to waive or reduce the parking requirement to which we have had regard.

26 Clause 52.07 requires consideration of loading and access arrangements.

27 Pursuant to Clause 52.17, a permit is required to remove native vegetation on a lot of more than 4,000 square metres. Victoria's Native Vegetation Management - A Framework for Action[2] is based on the concept of "net gain" and other decision guidelines in the Clause must be considered.

28 A permit is required to alter a crossing to a road within a Road 1 Zone pursuant to Clause 52.29 however, no access is proposed to Thompson Avenue.

29 A number of other Clauses are relevant to the consideration of this Application, including Clauses 11, 15, 16, 17.01, 18.01, 18.02, 19, 21 and Clause 65 (general decision guidelines). A local policy at Clause 22.05 addresses tourist development. Melbourne 2030 has also been taken into account by the Tribunal.

30 The Phillip Island San Remo Design Framework ("the Design Framework") is an adopted Council document, unlike the previous Application when a draft was in preparation. It is an adopted policy to which we have had regard pursuant to Section 60 of the Act. We were also referred to current heritage investigations by the Council that intend to recognise the avenue of golden cypress along Thompson Avenue and the St Philip's Church.

[46]

46 These opinions led Ms Peterson to request Mr Perkins to revise the façade without changing the proposed building envelope (save for some minor modifications to balconies). She acknowledged that these plans "present a substantially different appearance to the proposed building". Mr Stewart described the ability to alter the "skin" of the building while maintaining the overall mass and form (subject to Ms Peterson's recommendations) as a matter that could be dealt with by permit conditions.

47 In considering the submissions and evidence, our starting point is again what might be reasonably expected on this site in terms of a development outcome. We have previously found that a large building on the subject site, relative to the existing 1-2 storey character, is acceptable given the policy directions of the Scheme and nature of land use being proposed. We referred to the potential for a fourth storey, recessed in form, to Thompson Avenue and commented on the prospect that three storeys might produce the most comfortable fit to the Church Street elevation and in terms of providing a transition to the residential area to the west. Those comments were based on the form of the proposal involving wings along these two street frontages with an open central core where trees would be retained. The current proposal maintains that same design approach.

48 The inclusion of a strong corner element is desirable and it is also acceptable that such a component be higher to the corner then step down along the Church Street elevation. The current proposal provides the porte corchere and loading areas to the Church Street frontage with the three levels of building evident behind. The fourth level would be seen albeit recessed. Despite the deeper front setback, the ability to plant along much of the Church Street frontage is precluded by the paved areas associated with accessways and loading areas as well as a proposed footpath and revised parking along the site's northern frontage. It is proposed to retain two trees to the north-west and that area could be supplemented but the reality is that the building would be highly exposed to Church Street.

49 We do not believe that a highly visible three level form would be a problem if the design had strong vertical articulation to break up a building that extends across much of the breadth of the site for some 110 metres along Church Street. However, we are not satisfied that the current proposal has such articulation. Moreover, we are not persuaded that the extent of fourth level as proposed is acceptable and we are also not satisfied with the transition to the western boundary of this northern wing.

50 The recommendations of Ms Peterson in relation to the removal of part of the fourth level, primarily associated with penthouse 1, do not address our concerns about the extent of building bulk in this significant location. A three level form leading to a strong corner element at the street intersection would be more acceptable, assisted by improved articulation and modulation to break up the length of building. Some of the suggestions made in the Perkins design work toward such an outcome as do the suggestions by Mr Nott.

51 We now refer to Thompson Avenue. The Design Framework prefers three storeys to this Avenue and although that document can not be afforded determinative weight, we note that this would ensure that the cypress canopy remains the most dominant element. We remain of the view that a recessed fourth level on this site may be acceptable given the current Scheme provisions, however we have a number of concerns about the form proposed to Thompson Avenue as follows:

[48]

52 A number of Mr Nott's suggestions involving smaller and more articulated elements to the eastern façade would assist but we find that substantial changes are necessary to reduce the massing and increase setbacks if a proposal involving a long wing abutting Thompson Avenue is pursued.

53 We now refer to a strongly debated point in this Application being the architectural merit of the design.

54 We think that it is common ground that the review site is worthy of, and it is important to achieve, a high quality urban design outcome. The words "innovative" and "quality" can be easily said but architectural styling will always be a matter of debate and it will be somewhat subjective as to whether these laudable goals are achieved. In addition, in the current case, the Council is keen to seen the coastal setting reflected in the design but Mr Mason explained that it is not satisfied with the elements included such as sails, portholes or alternative elements involving materials such as sandstone proposed in the Perkins design. The evidence before us, for the Applicant, is that the styling as shown in the application plans does not achieve the necessary design quality. We accept Ms Peterson's evidence. We previously referred to the importance of detailing to the success or otherwise of a development (refer to paragraph 34 above). Our views have not changed and we find there to be only limited differences between the previous design and the current proposal. Moreover, as we have stated, our concerns go beyond that issue. Thus, it is not simply a matter of changing the outer "skin". We are certain that with changes in the massing to produce a less overbearing form and, "in the hands of a skilled designer" (using Ms Peterson's words) that a successful outcome can be achieved.

55 We are not persuaded to adopt the Perkins design albeit we recognise that it improves significantly on the proposal and, as we discussed with the parties, we do not believe that the objectives of innovative or high quality design can be written into a permit condition with a final decision to be left to the Council. The site is too important for this matter to be so uncertain both in terms of the architectural styling, finishes and materials. It is, also, a matter that should be open to broader scrutiny not only to those who have participated in these proceedings.

56 To address all of our concerns requires a fresh approach, not remoulding or recasting what was previously before us. A new design could be radically different to the current concept. Given our primary findings above, we next only summarise our views in relation to the other major matters in issue.

[49]

57 The dwelling to the west of the subject site has the most potential to be affected by the proposed development as the dwellings to the south would be separated by the central courtyard and stands of trees.

58 It is evident that the private open space of the adjacent dwelling to the west would be exposed to the visual bulk associated with the four levels of the northern wing. While issues of overlooking can be dealt with and overshadowing would be within reasonable limits if Clause 55 was to apply, the physical presence of the proposal would be significant. An improved transition to the north-west, as discussed above, would result in an improved outcome for the adjacent dwelling.

59 We note that reference was made to an agreement for a 3 metre high fence along the common boundary with this property although the owner was not present during the Hearing for us to confirm such an agreement. That is, however, a matter that could be dealt with by conditions and such a fence, if acoustically treated, could assist to ameliorate noise from the staff car park.

60 We have a greater concern about the refuelling of the LPG gas cylinder that is proposed to the north of the staff car park and would wish to see confirmed that the necessary regulations can be complied within in relation to filling. We do not consider that a LPG gas tanker reversing into the car park is an acceptable solution if the cylinder must be refuelled from the subject land. Our concern is both in terms of noise for the adjacent dwelling and the ability to use the staff car park efficiently and fully.

61 The dwellings to the south of the site would experience the mass of the development at a distance, although the four storey form less than 10 metres from the north-east of the closest residential property to this interface that fronts Holydene Court. That would represent a substantial impost. Again this is another reason why the massing to the fourth level should be reduced to enable a better transition to the south of the site.

62 Other impacts to nearby properties are more acceptable.

[51]

65 The proposal was criticised in terms of the reduction in parking sought, the reliance on on-street car parking, as well as a lack of parking for wheelchairs/motorised scooters and boats/trailers. As was also the case previously, we heard detailed submissions in relation to the adequacy of the proposed parking arrangements and the existing parking situation in the immediate vicinity of the subject site. Our attention was again drawn to activities at St Philip's Church, and parking demands in the vicinity as a result of other uses with such demands said to have increased with the growth of people visiting Cowes. The parties again provided varying assessments of the parking requirements for the proposal, and we do not describe the differences in detail.

66 The evidence of Ms Donald was that some 687 parking spaces are required by the provisions of Clause 52.06 with some credits that she said can also be applied. She gave evidence that an empirical assessment shows that the provision of around 115 spaces plus staff spaces on-site would be sufficient for most demands generated by the development. She concluded that parking for the development would generally be provided fully on-site. The exception would be at times of conference change-overs when there would be a reliance on on-street parking immediately abutting the site. The plans show parallel parking in Church Street being converted to 60o parking and Ms Donald recommended that this be amended to 90o parking to allow more flexibility for cars to depart either eastwards or westwards achieved through some minor adjustment on the site (additional widening).

67 Although we are not persuaded to adopt credits for this site, we accept Ms Donald's evidence that the on-site parking provision may be acceptable except at peak times. However, we remain concerned about the necessary reliance on on-street spaces at peak times when the precinct is busy in the obvious summer and holiday periods and also on other occasions. We record that revisions to the parking layout are necessary to accord with the relevant standards based on Ms Donald's evidence.

68 We are surprised that there have been no surveys undertaken at busy times in the nearly two years since we heard the last Application. We only have some spot surveys recently undertaken by Ms Donald and in fact her report is entirely based on 2001 data without updating changes such as new parking restrictions. For a major development we find this approach to be a failing particularly when this concern was previously flagged by us.

69 We also have a concern about the way in which the car park might work in so far as allocating spaces for staff of the shops, restricting public use and managing the hotel usage. A management plan would be have desirable if we had determined to grant a permit and that could have been addressed by way of a permit condition.

70 In addition, parking for others, such as disabled motorists, motorised scooters, bicycles (as required by Clause 52.34) and even recreational watercraft is not something we have addressed but requires attention in any revised concept for the land. Off-site bus parking was a further issue but is also not a matter that we have explored in any detail but it may be a consideration for a management plan.

At a glance

Court

Decision date

Source

Judgment (56 paragraphs)

Kingsley Down (Cowes) Pty Ltd v Bass Coast SC [2004] VCAT 2643 (22 November 2004)

Parties

Legislation Cited (1)