Leaper Investments Pty Ltd v Yarra CC [2013] VCAT 2209

Leaper Investments Pty Ltd v Yarra CC [2013] VCAT 2209 - VCAT 2013 case summary — Zoe

[56]

The site is located at the very north-eastern end of the heritage precinct as it applies to properties on the south-eastern side of Queens Parade. As such the properties further to the north-east along Queens Parade are located outside of the heritage overlay. The building on the review site is non-contributory, and no one at the hearing opposed its demolition. The building on the opposite side of Dummett Crescent from the review site is also non-contributory, which means that the review site neither contains nor adjoins any contributory or important heritage elements.
There are two nearby important heritage buildings. The closest is the former Clifton Motors site at 205-211 Queens Parade, and is a moderne (art deco) facade added to an earlier building. The facade was designed by J H Wardrop, a noted architect of this style of building. It presents to the streetscape with a two storey facade and a centrally positioned iconic art deco finned tower.
The second nearby heritage building, and clearly the most important of the two, is the former United Kingdom Hotel at 199 Queens Parade. It is listed on the Victorian Heritage Register, and within its own site specific heritage overlay under the Yarra Planning Scheme. In its Statement of Significance, and during the course of the hearing, the former United Kingdom Hotel was described as 'spectacular,' 'remarkable' and 'possibly Victoria's most exquisite and intact example of the Jazz Moderne style of architecture.' It was also designed by J H Wardrop. Despite its location further away from the review site, at a distance of some 60 metres, it was the impact of the proposed development as a backdrop to views to the United Kingdom Hotel which most concerned those parties opposing the proposed development.
Having regard to all of the matters which were put to us, we find that this proposed development will not detrimentally affect the significance of the heritage place. We have come to this finding for the following reasons.
Firstly clearly the proposed demolition is of no concern, as no heritage fabric will be lost.
Secondly, the proposed building will be read within a streetscape that is far from intact. In fact, in this part of the Queens Parade streetscape between Hoddle Street and Heidelberg Road, there are only two heritage properties, neither of which adjoin the review site. Therefore this is clearly not a streetscape with a consistent heritage character, nor a consistent period of construction. Further, despite the boundaries of the Heritage Overlay, the properties on the north-eastern side of Dummett Crescent[15] read as a separate collection of semi-warehouse or industrial buildings on larger allotments, which have little to do in character terms with the finer grain development on the heritage sites and those that immediately abut them. We find that this context 'opens the door' for a more robust development on the review site.
The proposed building has responded to these two nearby heritage properties by proposing a podium or street wall height of two storeys, which relates to the scale of the nearby heritage properties. What happens above that podium height will be very different to the nearby heritage properties, regardless of whether a scale of four, six or eight storeys is adopted.
Thirdly, this is not the first approval for a taller building in this precinct. We note that the site at 6-12 Dummett Crescent has been granted a permit for a four or five storey development.[16] We consider that this scale of building, immediately behind the Clifton Motors building, is an indicator that buildings of higher scale can reasonably be expected in this precinct. The review site's separation from a heritage building provides an opportunity for a further increase in height over that nearby approval.
Fourthly, the building will clearly be read as a contemporary piece of architecture that could not be confused for a heritage building. Much criticism was made of the façade composition, of both the podium and tower elements. Those that criticised the podium were concerned at to its dark colour, and how this does not draw any influence or reference from the design elements and multicoloured bricks used in the nearby heritage buildings. We think this proposal is the appropriate response, as the dark colour and modern simple lines of the proposed podium will more effectively highlight the detailed façade and colours of the two heritage buildings. We note that a similarly dark façade has been employed, to some success, on the more contemporary façade to the 'Stakehouse' building which is sited between the two nearby heritage properties.
A number of criticisms were made about the proposed tower façade composition, including what was described as a 'white 1200 by 300 glazed tile rain screen,' which seeks to emphasise every second balcony treatment in a way that attempts the disguise the overall height of the tower. This was criticised as being a too simplified façade compared to the intricate detailing on the heritage buildings. Also the light colour of the white tiles used in this detailing was criticised as detracting from the prominence of the heritage buildings, when viewed together. We agree with this criticism, though only in part. We consider that the contemporary nature of the architecture is an appropriate way to distinguish this new building from the nearby heritage buildings, and as a result ensure that the heritage buildings are recognised for the level of importance they hold in this precinct.
However we agree that the extent of white tiling, especially to the south-west elevation facing Dummett Crescent sought to draw the eye unnecessarily to this building, when the more intricate and important heritage buildings should be the more interesting and prominent built forms. During the course of the hearing the Applicant for Review prepared and circulated options for amended façade treatments to the tower element to deal with this criticism. All parties had an adequate opportunity to review these options, and put questions to the witnesses being called by the Applicant for Review. We find that Option 4 as prepared by the Applicant for Review presents the most appropriate way of softening the façade composition. We will adopt Option 4 in the conditions.
Lastly, the building is sufficiently separated from the important heritage assets so as to not impact upon their setting or appreciation. In relation to the Clifton Motors building, we are satisfied that the art deco finned tower will continue to be a recognisable and striking element in this streetscape, and will not be 'lost' amongst the tall buildings proposed here and expected on other sites further to the north-east.
In relation to the former United Kingdom Hotel, the following factors have weighed heavily on our consideration. The former United Kingdom Hotel presents to the corner of Queens Parade and Heidelberg Road, a location that ensures that it will always be prominent in the public realm and read for its important architecture. What happens well behind this façade will not, in our view, decrease its prominence to this corner, or its significance either as a single building or in the broader precinct. The fact that the proposed development will be set some 95 metres behind this main façade is a more than adequate separation, in our view.
Further we note that the main façade of the former United Kingdom Hotel is not clearly viewed at mid to long range views from front on. That is because the façade faces a reserve, which has been heavily planted out and which hides front on views of the main façade, particularly when the deciduous trees are in leaf. As such the building is more often viewed, except when in very close range, at an angle to the main façade. As a result of these angled views, the proposed building will not be read in mid to long range views behind the main façade of the former United Kingdom Hotel. Further, in close range views the former United Kingdom Hotel façade will dominate, and some glimpses of a taller building, located well behind, may be seen. For these reasons we are of the opinion that this proposed development with the recommended change will not present an unreasonable backdrop to views to the former United Kingdom Hotel.

[59]

As we have set out in our policy analysis, the review site is located such that it receives significant policy support for the achievement of urban consolidation. While the review site is located in a Neighbourhood Activity Centre, and therefore at the lowest rung of the activity centre hierarchy, it nonetheless is highly accessible to a range of public transport options, and has no nearby sensitive interfaces, such as residential properties. Further the site is fairly large, and sits within a collection of similarly sized properties, some of which are likely to also be redeveloped in the short to medium term.
We note the local policy at Clause 21.05-2 which seeks that sites within activity centres be redeveloped at generally no more than 5-6 storeys in height, unless specific benefits are demonstrated. Some possible benefits that would justify an increase in height are listed, but the list is not exhaustive of the possible benefits that could justify additional height over the policy preference for 5-6 storeys. In this case we find that a height of eight storeys is consistent with this policy guidance. Specifically the benefit we identify to justify the increased height in policy terms, is the ability to achieve significant urban consolidation in a location where:
1. A combination of physical attributes result in a high level of policy support for higher density housing, those including the proximity of a range of public transport and an activity centre location on a large unencumbered site; and,
2. There will be no off-site amenity impacts due to the nature of the surrounding land uses. We consider the complete absence of off-site impacts (such as visual bulk, overlooking and overshadowing) to be rare in this municipality given the common occurrence of activity centres in the form of strip shopping centres immediately abutting a residential interface, and the frequency of shop top housing.
We further find that the proposed scale and design of the building will sit comfortably within this context. We agree with the residents that this will undoubtedly be the tallest building in this neighbourhood by a fair margin. However we do not see the height alone as a relevant criticism of this proposal. Instead, in the context of a planning framework that encourages urban consolidation, particularly within activity centres, there needs to be some adverse consequences as result of the proposed height for us to find that it is unreasonable.
A number of residents were critical of the height on the basis that they will see the building, either from the front of their dwellings for those that reside along Queens Parade, or from other locations in the nearby residential neighbourhood. The fact that this building will be seen is not an inappropriate outcome. Instead we need to find that the view to the built form will be offensive or inappropriate. Such views will be at a distance of at least 60 metres, being the width of Queens Parade. Further, a busy main road, with street trees, overhead tram lines and a fair degree of traffic will separate the review site from the nearest residential properties. At a distance of 60 metres, a building of 30 metres in height will be visible. However this is not a dominating element at this distance. It is certainly a tall structure, but one that will not appear as overcrowding the streetscape, or too tall for its urban environment. Such a view from this distance will be to a tall building, but not one that we consider will unreasonably dominate any residential property.
In response to the Council's criticism of the prominence of the tower design, save for the façade change we have already supported, we consider the overall design of both the podium and the tower to be appropriate. We do agree with the Council's assessment that on this building the tower will be the prominent visual element. However we do not agree that that is an inappropriate outcome. For the reasons we have already outlined, an eight storey building is appropriate and supported by policy, and a two storey podium is an appropriate response the scale of the important heritage buildings in the heritage overlay in close proximity. That means that the building will necessarily consist of a tower element that is three times taller than the podium, and which will be, regardless of the façade treatment, the most prominent element of the proposed building. We do not consider that to be an unreasonable outcome in this activity centre context, having regarding to the relevant policy guidance.
The building's relationship to the properties to the south-west is essentially its relationship to the heritage overlay, which we have already assessed and found to be appropriate.
The building presents a side setback to the north-east boundary of 3 metres. None of the proposed apartments have their sole aspect to the north-east boundary. Rather the apartments face either to the front or rear of the site, and to the side boundary are a series of windows to bedrooms and one window on each floor to a living area, which is a secondary source of light for that area. As a result, we consider that the proposed development is an appropriate response to the future development site to the north-east, and does not limit the development potential of that adjoining site. We see the adjoining site as retaining a range of development options, in terms of setbacks to a tower element.

[63]

The Council raised concerns with the acoustic amenity to be enjoyed by residents in the rear facing apartments on the first and second floors who will be near to an elevated on ramp from Hoddle Street to Heidelberg Road. The concerns raised were in relation to the standard to be applied to acoustic treatment of the building, not as a ground on which the proposal should be refused the grant of a permit.
The elevated on-ramp is located approximately 2.5 metres below the floor level of the proposed first floor apartments, and approximately 5 metres from the rear boundary of the review site. We are satisfied, based on the submissions and evidence heard, that the elevated on-ramp is sufficiently separated from the first floor apartments such that head light glare and visual privacy will not be unreasonable.
In relation to acoustics, our deliberations on this matter has not been assisted by the fact that no acoustic evidence was called, and no written submissions made by either party on the acoustic implications of the access ramp to the proposed apartments. In fact this matter only gained attention from the parties in a discussion regarding conditions at the conclusion of the hearing.
We were presented with different positions from the Council and the Applicant for review, in respect of the standard of noise attenuation that should be achieved within the apartments. The Council wants to impose a condition requiring the achievement of Leq 40dBA during the day and Leq 35dBA during the night time period. The Applicant for Review sought to have both of these noise limits increased by 5dBA. The difference in position is a matter of interpretation of the relevant Australian Standard, which sets both 'maximum' and 'satisfactory' noise levels.
We have decided to adopt the Applicant's preferred noise limits, for the following reasons. Firstly, we note that the 'maximum' noise levels are those that signify, "the level of noise above which most people occupying the space start to become dissatisfied." We interpret this to mean that noise levels at and below these maximum levels are a level at which most people are satisfied. We find some correlation between that outcome, and the guidance provided by the Yarra Planning Scheme that we should seek to achieve outcomes that are reasonable and appropriate.
Secondly, we note that the Tribunal has recently applied standards for dwellings near train lines of 40dBA in bedrooms and 50dBA in living rooms.[17] We appreciate that in this case we are not dealing with an adjacent railway line. However we draw comfort that the noise levels sought by the Applicant have previously been found to be an appropriate standard of noise internally within an apartment adjacent to an external noise source. In short we consider that the Applicant's preferred standards of 45dBA during the day and 40dBA during the night to be an appropriate reflection of the standards adopted by the Tribunal previously in similar decisions.
Thirdly, one of the policy objectives is the achievement of affordable housing. While we are not suggesting that these apartments will be available to people who otherwise would be shut out of the housing market, we are cognisant of the need to ensure housing can remain affordable for as much of the population as possible. Therefore we are not inclined to require an onerous set of acoustic standards for an apartment development, unless a party can convince this Tribunal that the standard being sought is appropriate and reasonable. Ultimately we have not been satisfied that the Council's suggested noise limits are reasonable.
In relation to the noise that will be experienced on the balcony spaces, we agree with the suggestion put to us by Mr Biles that the balconies to levels 1 and 2 could be enclosed by glazing, so as to increase their amenity level. We will require such a change by way of a condition.
None of the submitters raised any other concern with the level of internal amenity that will be achieved with the proposed development. We find that the proposed development will largely achieve an appropriate level of internal amenity having regard to:

[69]

Car parking and traffic evidence was given by Mr Walsh. It is his evidence that while the proposed development has a shortfall of 21 car parking spaces when compared to the requirements under Clause 52.06, an empirical assessment reveals a likely actual shortfall of fourteen car parking spaces. That is, it is anticipated that, at peak demand, this development will generate fourteen cars looking for car parking in the surrounding streets. We accept this empirical analysis as a likely assessment of the actual parking demand, particularly those created by visitors to the residential apartments.
Mr Walsh presented data from a range of car parking surveys undertaken of the area surrounding the review site. In the latest surveys, conducted in early September this year, the survey area was located solely on the southern side of Queens Parade, consisting of the service road, Dummett Crescent and the road on the northern side of Mayors Park. The surveys, which were conducted on a Wednesday, Friday and Saturday (including Friday and Saturday nights) revealed at least 62 vacant spaces available in the surveyed area. On Friday and Saturday nights, when most visitors would likely be in attendance, there was at least 101 car parking spaces available at all times.
The residents attested to their difficulty in finding car parking on the northern side of Queens Parade, and the Tribunal does not doubt that car parking in that area is under high demand. However, the car parking surveys adequately demonstrate that the off-street car parking generated by this proposed development will be able to be met by available car parking on the southern side of Queens Parade. Further, a number of the residents who made submissions stated that they did not look to the southern side of Queens Parade for car parking, due to the awkwardness in crossing Queens Parade. For similar reasons we consider that visitors to this development are unlikely to seek car parking on the northern side of Queens Parade, particularly given the ample provision of available car parking on the southern side.
Some of the residents submitted that apartments will likely generate more than one car parking space per apartment. In our decision making, we need to be guided by the provisions of the Yarra Planning Scheme which sets a standard requirement of one car parking space for every one and two bedroom apartment. We cannot require, in this instance, a higher rate of resident car parking than that set out in the Yarra Planning Scheme.
For these reasons we consider it appropriate to allow the partial waiver of car parking as sought by the Applicant for Review.
Finally, some residents in their statement of grounds raised concern with the non-provision of a loading bay within the development. A loading bay is required under Clause 52.07 of the Yarra Planning Scheme for the retail premise and the food and drink premises. A permit is being sought to waive that requirement. Mr Walsh supports the waiver of a loading bay on the basis of the infrequent deliveries to two relatively small tenancies, and the existing on-street provision of a loading bay in the service road in front of the review site. We agree with Mr Walsh that the existing on-street provision of a loading bay is sufficient, and more than capable of handling the limited deliveries expected to the retail premises within the proposed development. For this reason we will waive the requirement for an on-site loading bay.

At a glance

Court

Decision date

Source

Judgment (120 paragraphs)

Leaper Investments Pty Ltd v Yarra CC [2013] VCAT 2209 (17 October 2013)

Parties

Legislation Cited (1)