Victorian Civil and Administrative Tribunal|2008-12-18

MacRiver Pty Ltd v Yarra CC [2008] VCAT 2568 (18 December 2008)

Yarra Planning Scheme; Application pursuant to Section 149 Planning and Environment Act 1987; Mixed Use Zone; Development Plan Overlay (Schedule 4 - Jaques site); Approval of Development Plan; Strategic Redevelopment site; Planning policy; Height; Setbacks; Open space contribution; Affordable housing;

MacRiver Pty Ltd v Yarra CC [2008] VCAT 2568

The decision of the Responsible Authority is set aside. The Tribunal is satisfied that a Development Plan (Jaques Development Plan) be approved as satisfying Clause 43.04-3 and the requirements of Schedule 4 to the Development Plan Overlay Yarra Planning Scheme.
The Responsible Authority is directed to approve the Jaques Development Plan dated December 2008 but modified by deleting the second paragraph in Section 6.2 and replacing it with the following new paragraph:

The development area committed to public open space represents 8+% of the Jaques site. This equates to an amount of public open space greater than the 4.5% requirement under Clause 52.01 of the Yarra Planning Scheme and the 5% requirement under Section 18 of the Subdivision Act 1988.

Mr Chris Canavan QC and Mr Chris Townshend, SC instructed by Deacons. They called written and oral evidence from Mr Tim Biles, Town Planner and Urban Designer of Message Consultants Australia Pty Ltd and Mr Jamie Govenlock, Town Planner of Urbis Pty Ltd.

With the agreement of parties Mr Jason Walsh, Traffic Engineer of Cardno Grogan Richards was not required to attend to give oral evidence and answer questions.

Mr John Rantino, Solicitor of Maddocks Lawyers. He called written and oral evidence from Craig Czarny, Urban Designer of Hansen Partnership Pty Ltd.

We inspected the site and locality on the afternoon of the second day of the hearing. Parties then returned on Wednesday 17 December 2008 and we gave an oral decision to approve an amended development plan and the following are the reasons for our decision.

Redevelopment of the Jaques site has had a very long and tortuous history and the development plan under review now is the last iteration in a long line of different development proposals for this site. Despite the additional changes sought by Council as set out in its 3 page letter to the Registrar of the Tribunal (dated 9 September 2008), it is apparent that to a large extent the development concept for this site has now reached a point where it has the support of Council.
Despite Council supporting the Jaques Development Plan (JDP) subject to quite a number of changes, at the hearing, the points of contention narrowed to five key issues. Two involve built form and three involve references in the development plan to affordable housing, the status of open space and environmentally sustainable design. We now comment on each of these in turn.

Built form - 8 or 10 storeys for the Griffith Street Building and additional top floor setback along Palmer Street

The site is zoned Mixed Use and is identified as a strategic redevelopment site. Both State and local policy encourage the redevelopment of large, well located sites such as this in order to meet the burgeoning need for additional residential accommodation in metropolitan Melbourne. Subject to satisfactorily responding to the site context, we agree that there should be no impediment to development achieving its maximum or optimum potential. There are no off site amenity impacts such as overlooking and overshadowing and we agree with the description that this site is an 'island'. Not only is it an island in a zoning sense (Mixed Use surrounded by Residential 1) but it is surrounded on all sides by wide street reserves and it is therefore physically and visually separated from dwellings in the Residential 1 Zone. Tall street trees serve to reinforce the physical and visual separation of the site.
One of the key points for Council seeking to reduce the height of the ten storey Griffith Street building was its appearance in relation to the Richmond Town Hall clock tower and the civic precinct. We do not accept that the ten storey building on the review site will compete or detract from views of the clock tower or other taller spires and structure referred to in Council's Landmarks and Tall Structures Policy (Clause 22.03). The existing building already obscures views from the north east towards the clock tower, cathedral spire and the Pelaco sign and the new building will not remove existing views, other than perhaps very long distance views from higher ground on the eastern side of the Yarra River. We viewed the review site from many vantage points and observed the many taller structures around Richmond. These include the spire of St Ignatius Cathedral and the Pelaco sign referenced in Clause 22.03, but also include the various Ministry of Housing tower blocks, the Epworth Hospital and the old grain silos now converted to apartments. We are also aware of other approved developments that are yet to be built which will add to the kaleidoscope of taller structures around Richmond.
We accept that the taller parts of the building will be visible. But visibility/invisibility is not the test as to whether a building is acceptable - if that criterion had been accepted in the past then some of our finest churches and civic buildings (such as the Richmond town hall and clock tower and the St Ignatius cathedral and spire) would never have been built. In an inner urban context, in an activity centre and civic centre close to public transport and a great range of urban amenities it is unrealistic to expect new buildings on this site to be reduced in height based on what has gone before.
We do not accept Mr Czarny's suggestion that the height and setbacks of buildings on this site should be constrained by what occurs to the south. It is a small pocket of very tired residential development that in our view will inevitably be replaced by much higher and more intensive built form in the coming decades. This is a strategic redevelopment site and policy unambiguously requires more intensive and more efficient use of sites such as this and inevitably that will mean taller buildings that do not seek to be constrained by the height of the relatively few dwellings in the residential areas to the south.
Council's proposed Clause 21.02 suggests that Yarra will need to accommodate 12,800 additional dwellings by 2030, of which 85% or 10,880 are to be accommodated on strategic redevelopment sites. As discussed at the hearing there seems to be no appreciation by State Government or Yarra City Council of what this means in terms of built form. It is easy to calculate how many dwellings are required to be built each year to achieve the target but what does it mean for each strategic development site in terms of the height and intensity of built form. We also make the perhaps obvious point that although the planning horizon is 21 years, Melbourne will not stop growing in 2030 and we need to keep in mind that even more intensive forms of development will be required if Melbourne is not to spread unendingly to Geelong, Ballarat, Bendigo, Seymour and the Latrobe Valley.
We suspect that the debate in a few decades will be about allowing even much taller buildings on such large sites, in areas so well serviced with urban facilities. As we have noted in other decisions, although there are strongly held alternative views about the wisdom of urban consolidation policies, the inescapable fact remains that Melbourne's population and household numbers are growing at a very rapid rate and new dwellings need to be provided. We don't intend to provide a discourse on the pros and cons of urban consolidation policies other than to note that it has been a crucial element of metropolitan planning for many decades.
Unlike Council, Mr Czarny supported 8 storeys for the Griffith Street building compared to the 10 storeys proposed by the applicant. Having regard to the evidence and our appreciation of the planning scheme provisions and the site context, we consider that there is no justification for removing two storeys from the Griffith Street building.
We have also reviewed the proposed 4 metre setback for the top floor of the 6 storey building fronting Palmer Street. Although Richmond is not Barcelona, we agree with Mr Biles that it is the articulation and materials of building facades which are critical to how a building 'works' in its setting and whether it is worthy of support. We therefore agree with him that it is not necessary to setback the upper floor of the six storey building but, as he demonstrated in photos, the detailed design of the building will determine how successful the building appears when viewed from this direction.

Should there be a commitment to the inclusion of affordable housing?

Section 7.4 of the JDP comments about affordable housing. As amended, this section includes a commitment to provide 10 market entry units. Council sought to include a commitment that 5% of the dwellings would be utilised for affordable housing. What is meant by affordable housing, who provides it and how it is provided are very complex issues not simply solved by including a prescriptive requirement in a development plan. We agree with Mr Canavan QC that the provision of affordable housing is very difficult to control in practice and we also agree that at the development plan stage it is preferable to include aspirational statements with the detail to be assessed at the permit stage. We agree that the changes suggested by Ms Janiszewski provide a clearer statement about what is sought to be achieved with affordable housing on this site.

The status of the east west pedestrian link/reference to a public open space contribution

The provision of an east/west pedestrian link, linking Coppin and Griffith Streets is consistent with Schedule 4 of the DPO to provide an east west link through the site to provide pedestrian access to Citizen's Park and public facilities west of the review site.
Within section 6.2 of the JDP, there is a statement that this 8+% of public open space being provided on the site satisfies the open space requirement under Section 18 of the Subdivision Act. Council submits that the calculation as to what constitutes the public open space contribution should wait until the development is subdivided since the amount required maybe more than that now shown on the JDP.
Clause 52.01 of the Yarra Planning Scheme requires a 4.5% contribution for public open space upon subdivision of land or buildings intended to be used for residential purposes. Section 18 of the Subdivision Act 1988 which in this case may apply to subdivision of a commercial building indicates a contribution can be sought for an amount up to 5%.
Clause 22.12 sets out Council's policy for Public Open Space Contributions and has as policy that land contributions will be preferred to cash contributions in the area of Yarra identified as 3121C. The review site is within 3121C and the proposal to include a physical pedestrian link is consistent with that local policy.
While we understand Council's position regarding the desirability of calculating contributions at the time of subdivision, we are not sure why Council is so concerned when the JDP already provides a land contribution as required by Clause 22.12 and in a location required by Schedule 4 of the DPO. It seems that Council is keeping its options open to also obtain a cash contribution depending on the eventual subdivision, but we are satisfied that the open space as now provided does accord with Council's intensions as set out in the Planning Scheme and it is not inappropriate to recognise it at this stage.
Whilst we are generally supportive of the content of this section we think it should be slightly reworded.

DPO4 seeks a response to Clause 15.12 Energy Efficiency and Clause 22.10-3.5 Environmental Sustainability. Section 7.2 of the JDP responds to those energy efficiency and environmental sustainability objectives. In particular, section 7.2.5 includes performance targets for residential of an average 5-star energy rating and for commercial of a 3.5-star rating. Council instead sought a residential 6-star energy rating and a commercial 5-star rating.
We agree with Mr Canavan QC that setting energy targets is already dealt with at the building approval stage and that there is no justification, and we have been given no evidence, as to why different standards should apply to this particular development. Clause 22.10-3.5 (Environmental Sustainability) includes decision guidelines aimed at improving environmental outcomes. It does not specify energy ratings, nor in our view should local policies seek to replicate and vary the targets and standards agreed at the State and National levels.
We also agree with Mr Canavan QC that it is the total approach to environmental sustainability and not just energy usage which determines the sustainability of a development - including the use of green energy, water consumption, water recycling, and discouraging motor vehicle usage. We therefore do not support any changes to this section of the JDP.

Having regard to the above, we will order that the Jaques Development Plan, December 2008 (with amendments and with the additional change set out in our order) be approved as complying with the requirements of the Development Plan Overlay.

Environment Act 1987

MacRiver Pty Ltd v Yarra CC [2008] VCAT 2568

At a glance

Court

Decision date

Source

Judgment (18 paragraphs)

MacRiver Pty Ltd v Yarra CC [2008] VCAT 2568 (18 December 2008)

Parties

Legislation Cited (1)