Melbourne Domain Pty Ltd v Melbourne CC [2013] VCAT 1832

Melbourne Domain Pty Ltd v Melbourne CC [2013] VCAT 1832 - VCAT 2013 case summary — Zoe

[25]

The purposes of the Mixed-Use Zone at Clause 32.04 include:
- To implement the State and local planning policy framework including the Municipal Strategic Statement and local planning policies;
- To provide for a range of residential, commercial, industrial and other uses which compliment the Mixed-Use function of the locality;
- To provide for housing at higher densities; and
- To encourage residential development response to the existing or preferred neighbourhood character of the area.
The Parking Overlay Schedule 12, Residential development in specific inner city areas, provides for a maximum parking rate of one space per dwelling.
At a State Planning Policy Framework level, there are a number of relevant provisions which include:
- Clause 11.01-2 - Activity Centre Planning, which encourages consolidation of retail, residential, commercial, administrative, entertainment and cultural development within Activity Centres. Whether they range of housing types in higher densities in and around Activity Centres.
- Clause 11.04-3 - Central Melbourne, which seeks to support central Melbourne's capital cities functions through higher scale and higher density mixed residential and commercial development.
- Clause 15.01 - Urban Design which seeks to promote good urban design to create liveable and attractive spaces and developments which contribute to community and cultural life.
- Clause 15.01-2 - Urban Design Principles seeks to achieve architectural and urban design outcomes that make a positive contribution to local urban character and enhance the public realm while minimising detrimental impacts. Strategies that need to be addressed include: context, landmark views and vistas, pedestrian spaces, consolidation of sites, architectural quality, and policy guidelines which direct consideration of the design guidelines for Higher Density Residential Development.
- Clause 16.01-4 - Location of residential development, which looks to locate housing in or close to Activity Centres and employment areas.

[28]

Under the new MSS, the site is located within a new local area named "the Hoddle Grid area" which incorporates most of the previous central city local area but adds the area north of the grid which is roughly triangular in shape, bounded by La Trobe Street, Victoria Parade and Peel Street. The site is no longer in a designated sub-precinct designated for substantial change. Rather, the Hoddle Grid Local Area is an area now designated for "ongoing change".
There was a discussion at the hearing about the confusion cause by the use of the term "Hoddle Grid" in different parts of the planning scheme to describe both surveyor Hoddle's original city grid and also for the new local area which includes the review site. Council advised that the CCZ does not apply to the land bounded by Victoria Parade, La Trobe Street and Peel Street within which the review site is located.
The Scheme's Local Planning Policy Framework (LPPF)[2] gives guidance with regard to development outside the capital city zone. This guidance seeks to respect for the valued aspects of the existing built form character in the city and seeks to maintain the overall quality of the urban environment. The parts of this guidance that are relevant to this application include:
- To ensure that the scale, siting, massing and bulk of development compliments the scale, siting, massing and bulk of adjoining and nearby built form.
- To ensure that the building design includes the use of materials and activities at the ground floor frontages of buildings creating and improving pedestrian interest and engagement.
- To ensure that development uses design and detail to ensure all visible facades (including the rear and sides of buildings) provide a rich and positive contribution to the public realm.
- To ensure that developments avoid ambiguity and conflict in the design of fronts and backs of buildings.
- To ensure that development contributes to a pedestrian and vehicle network which ensures pedestrian movement and amenity is a priority and strength in its networks of pedestrian pathways through an area.
- To ensure that development promotes building forms that will minimise the adverse impacts of wind in surrounding the public spaces and provide weather protection where appropriate.

[36]

At the commencement of the hearing, Council provided the Tribunal with a helpful "fly by" of the site and its surrounds by using the computerized 3-D modelling tool used by it for a variety of purposes. This enabled all parties to appreciate the proposal and its physical context when viewed from various locations.
Design issues raised by Council in its grounds of refusal included the height of the proposal, the setbacks to east and west, the failure to provide equitable access to outlook and sunlight between towers and its failure to make a positive contribution to the public realm due to its lack of architectural quality.
We accept Council's submission that policy would at the very least indicate a lower scale for buildings on the north side of La Trobe Street as built form approaches the lower scale finer grain areas to the north. This appears to be the only indication of "identified preferred built form character".[6] This transition has largely been achieved north of McKenzie Street by the scale of the redeveloped Space Hotel and the historic Horti Hall next to it. However, this policy directive was apparently ignored in the approvals given for both the Concept Blue tower (27 storeys with a four to five storey high projecting fin above) and 27-39 McKenzie Street (32 storeys) which flank the review site to the west and northeast. An approval has also been given for a 34 storey building at 40 La Trobe Street with a front setback of 6 metres above a podium.
Despite these approvals, we cannot perceive any justification for a built form higher than the aggressive bulk of Concept Blue which marks the intersection of La Trobe and Russell Streets. Future redevelopment of the front half of the site will mask development on the review site, but we do not think this justifies a building which projects above what are already high buildings in an area designated for ongoing change, but with heights which provide a transition from the CC2 to the north. We accept Mr Sheppard's evidence that the size of the setback from La Trobe Street will reduce the visual presence of the building on the street, but not his justification of a building height roughly equivalent to the top of the Concept Blue "fin" as contributing to the emerging character of taller buildings supported by the area's intensification.
The reduction in size of the allotment is only problematic in that it reduces the area available to the applicant to achieve an appropriate separation between the proposal and already built nearby towers, whilst not ignoring any future development to the immediate east. Consideration of the affect of the proposal on Concept Blue or 27-39 McKenzie Street is brought into sharp focus by the seeming disregard of each of these buildings in ensuring the preservation of its own amenity over time.
The two areas of blank wall along the western boundary of Concept Blue presented an acceptable level of equity for the development of the adjoining site - as at that time the allotment had not been subdivided and was thus less constrained. However, the dimensions of the lightwell imposed a considerable restraint on any development, as even had the current proposal reflected the 3 metre dimension of the existing lightwell, the amenity of the 17 rear apartments whose only outlook is south into the lightwell and the bedrooms which face east at the higher levels would have been totally inadequate. The apartments which face north onto the lightwell have an alternative outlook onto La Trobe Street.
We adopt the Tribunal's observation in Hightbury Focus Pty Ltd at [18] noting however that the development on Wills Street was within the Capital City Zone and the review site is in an area outside it, in a zone where a higher level of amenity is expected. The Tribunal said:

[38]

We accept the applicant's assertion that in this case the provision of an additional 7 metre separation in line with the Concept Blue lightwell is a more than acceptable response which also preserves an outlook to the southeast from the upper levels. Further, during the hearing the applicant offered a further 2.6 metre setback of the west wall of the car park on Level 4 adjacent to the lightwell. This amendment should be incorporated in any subsequent proposal for the site.
The abutting neighbour to the east, whose small (525 square metres) property is also a candidate for redevelopment, wishes to preserve this potential for the land. Mr McNamara identified a concern that given Council's submissions which seek spacing between towers, in the absence of any setback of the east wall of the proposal before us, the onus would fall on his client to provide separation. He argued that there is little support in the scheme to support a dispersed urban form on sites such as his client's which are small in area, have narrow frontages and are without heritage constraints in a mixed-use area where the only policy guidance lies in the transitional nature of the location. We agree with him that the lack of regulation in this area may well have led to a high level of development activity within it. His client seeks reassurance that an approval on the review site will not inhibit development on his own, particularly as the low level of internal amenity of the proposed apartments (which we discuss below) allows little tolerance for any further impact from the redevelopment of 54-56 La Trobe Street. As an example, those units shown with balconies returning along the east face which enjoy a southeast aspect may be deprived of it by the redevelopment of 54-56. Mr McNamara noted also that Council has approved a wall to wall development at 36-40 La Trobe Street, a site wider than his client's.
Council policy for this area appears to be in a state of flux. Council officers suggest a setback on side boundaries on habitable room levels of at least 5 metres, a view supported by Mr Pryor. He agrees that to not set the proposal back from the east could limit the development options of the adjoining site. As it is our decision to refuse the grant of a permit for reasons of amenity and substantial reconfiguration will be required in any future iteration of the project, the extent of wall built to the east boundary is a matter for consideration at that time. Ideally the redevelopment of the two adjoining sites could be considered together and an appropriate urban design solution arrived at collaboratively.
The extent of the wall along almost the whole of the east boundary appears to result from the decision to maximise the intensification of the site, and to compensate for the setback from the west. We think that this may indicate an over-optimistic view of the potential yield which can be achieved on this site.
Council asserts that the approval of boundary to boundary development on this site will have a negative effect on the public realm of La Trobe Street in that it would encourage the development of a "wall of towers" which in turn would create an oppressive streetscape, rather than one of relative openness which is sought outside the Hoddle Grid. Mr Pryor also considers that the treatment of the south façade of the building lacks interest and has limited variation. He criticises the fact that the building has not been designed in the round. He says the blank cast wall does not provide "a rich and positive contribution to the public realm" sought by the objective in 22.17, and that this is particularly important due to the ongoing visibility of this wall from the Carlton Gardens. Another negative impact is the additional shadows cast on La Trobe Street.
We consider that "the horse has bolted" in terms of the impact on the public realm caused by previous approvals. We find that the abstract patterning on the south and north facades is acceptable, but in view of our refusal of this application make no further comment on the treatment of the exterior of the building.
The student accommodation building to the south is currently four levels with a mezzanine to the top level, with approval for an additional two levels. It is separated from the south wall of the proposal by around 7.7 metres. An 18 metre long corridor through the ground level of the building provides the main entrance and access to the proposed development. From an urban design perspective, this undistinguished building adds little to the public realm. It appears from the drawings that a facelift is proposed, at least to the ground floor entrance area. We find that the fact that the new building will remove any solar access now enjoyed by the constrained student accommodation is not a product of the height of the design proposal as any new building to the north would have a similar result.
We conclude that a height no higher than the Concept Blue tower (excluding the fin) would be acceptable.

[40]

We have already discussed the impact of the proposal on the existing apartments in Concept Blue and the student housing in terms of overshadowing. The outlook to the north from the student housing is, at the lower levels, directly onto the ventilation louvres to the car park. With the upper levels are directly opposed to the residential units on Levels 6 and 7 of the new building. We note that with a separation distance of less than 8 metres, the proposal has had less regard for the 24 student units, directly facing or at 90º to the south face of the proposal, than it has for the 17 south facing units in Concept Blue.
We find the amenity afforded to the student housing unacceptable. We agree with Council that in addition these dwellings will be entrenched in shadow almost every day of the year. The imposition of screening to protect privacy will only serve to exacerbate the situation.
Council, Mr McNamara and Mr O'Connor were highly critical of the level of amenity afforded future residents of the proposal, identifying the following:
- Two dwellings per floor rely on borrowed light to bedrooms, and these are two of the four dwellings per floor which face south.
- The three dwellings per floor which face north will not enjoy the benefits of that orientation due to the development at 31-39 McKenzie Street. According to Mr Clarke's calculations, only the top three levels of the building will receive solar access at the equinox. We note that these are the apartments at or above the level of the roof terrace of 31-39 McKenzie Street.
- The minimal provision of communal facilities. We note that the pool at Level 4 will receive little sunlight.
- The minimal size of apartments. (One bedroom 41-42m², two bedroom 51-57m²)
- The low ceiling height (2550mm). At the hearing the Tribunal was advised that the applicant was happy to increase the floor to floor dimension, but not decrease the number of levels proposed.
- The inadequate provision of storage (21 spaces for 213 units). At the hearing the applicant offered to provide 50 additional over bonnet storage units.
We agree that these characteristics, when combined, cannot be said to provide high standards of amenity including good access to sunlight, daylight and privacy as sought by clause 21.07. We find that the proposal internal amenity is poor. The north-south orientation of the site does not make south facing apartments inevitable. The lack of storage for such small apartments indicates that they have been designed as investment properties with scant consideration for the living conditions of future residents.
The applicant points to the direct access of living rooms to balconies, access to communal facilities and maximised northern aspect and views of the city as indications of an appropriate level of internal amenity. We disagree. Few apartments derive any benefit from their northern orientation and the disadvantages of, for example, low ceiling heights, minimal floor area and lack of adequate storage tip the balance to an unacceptable outcome.
In balancing the competing objectives of urban consolidation and public and private amenity, we conclude that this proposal fails. The fact that both Concept Blue and 27-39 McKenzie Street have poor regard for either the transition in height from the Hoddle Grid to the north or for the provision of an appropriate standard of internal amenity for a considerable number of dwellings - in McKenzie Street there are considerable number of bedrooms totally reliant on artificial lighting - is not a reason to approve yet another development with poor levels of amenity.
We do not accept the applicant's contention that a trade-off for the availability of the attributes of the cultural city is an apartment with a poor level of amenity. As Mr Scally observes, there are many apartments in the city which have, for example, poor solar access. We do not think that their numbers need to be increased for lack of a more creative (and thus acceptable) design solution.
Research indicates that 85% of apartments in the City of Melbourne are bought by investors.[7] As apartments have become an investment class, the price point required has resulted in smaller and smaller apartments. In a market with low vacancy rates, the imperative for improved amenity is reduced.
Equally, in seeking to provide diversity in housing, there have been many dwellings built at the lower end of the amenity spectrum. Using "affordability" as an argument does not justify reducing amenity to a bare minimum. Policy seeks to ensure that "reasonable expectations" of amenity are maintained. This design has failed to achieve an appropriate balance. Whilst we acknowledge the constraints of the site, we think that rather than attempting to maximise the intensification of the site, it may be that a more modest yield could produce dwellings with an acceptable level of amenity both for future residents and those in adjoining buildings.

[42]

Although not a determinative matter in our decision made in relation to this proposal, the car parking and access arrangements were fully discussed at the hearing. Currently, the site is accessed from La Trobe Street with a 23 space public car park. Towards the rear of the site is a 20 space commercial car park, accessed from Grange Place. Recently completed works at 27-39 Mackenzie Street included the widening of Grange Place to a 5.5 metre carriage way width and a pedestrian footpath on the west side of the lane. Although the review site currently has two access points for vehicular movement, these are not connected. If the proposal were to be approved, the vehicle access from La Trobe Street would be removed and all access to car parking would be from Grange Place via a roller door at the end of the lane.
Based on the proposed uses of one and two bedroom dwellings, office, restaurant and retail, the statutory parking requirement for the development is 221 spaces. The plans indicate provision of 87 spaces spread over two basement levels and two above ground levels accessed by two car lifts.
The maximum number of parking spaces required is one space per dwelling or 213 spaces[8], therefore the total provision on-site is 87 spaces, satisfying Schedule 12. However, Schedule 12 deals with residential car parking requirements and does not make any reference to office, restaurant or retail uses. The applicant proposes to provide one on-site parking space for each of the commercial tenancies, creating four spaces in total to be used by staff. A loading bay is also provided within the development, directly accessed off Grange Place for the ground floor premises and for residents loading and unloading furniture.
Surveys taken in similar developments indicate that a trip generation rate of 0.14 vehicle movements per parking space will be generated. This rate generates 12 vehicle movements during both the morning and afternoon peak periods. It is expected that Grange Place will generate in the order of 20 vehicle movements during the peak hour and approximately 200 vehicle movements per day. Mr Hancock's evidence is that the capacity of Grange Place is between 1000 to 2000 vehicle movements per day, thus the traffic generated by the proposal would be appropriate accommodated within Grange Place. The other parties do not dispute these findings.
However, Council is concerned that access to some spaces and to the lifts (discussed below) is awkward and may lead to queuing and thus be dangerous for pedestrians entering the site from Grange Place. The car spaces are typically 4.9 metres long and a minimum of 2.6 metres wide, with a minimum aisle width of 6.29 metres.[9] The swept-path diagrams confirm that although some spaces may be tight for access in the residential building, three manoeuvres or less are required to access these spaces, each of which will be used regularly by the same driver. We agree with the applicant that this is acceptable.
Council's concern is with the time taken to access and exit the car lifts and the potential for queuing within the site. Mr Hancock noted that there were a number of different car lifts on the market, and that typically these car lifts have a service rate of up to 90 seconds, giving a capacity of 40 vehicles per hour per lift or 80 vehicles for the two lifts. The Tribunal is satisfied that, with the capacity for two vehicles to prop within the forecourt adjacent to the car lifts, the movement of vehicles will not cause difficulties for users of the site.
Refuse collection can be undertaken by vehicles up to a 6.4 metre long rigid truck. Mr Hancock demonstrated that there is sufficient space within the site for this vehicle to manoeuvre and enter and exit in a forward direction. It can also use the loading and service bays, as can removal vans.
The Scheme requires 65 bicycle spaces to be provided. The proposal indicates provision of 136 on-site bicycle spaces. Council queried the deletion of spaces for motor scooters or motorbikes which had been shown in earlier proposals. We consider that there is sufficient space for such vehicles to be safely accommodated. We are satisfied that the provision of parking on the site, the use of car lifts to move cars within the site, and that adequate provision of bicycle parking has been provided. Access to load and unload furniture and collection of refuse from the site via Grange Place is also acceptable.
We note that there is a deficiency in the amount of secure storage provided on the site. It was suggested that additional over the bonnet storage could be provided in the parking levels to off set this shortfall. If this were found to be acceptable, it could be dealt with by permit condition.

At a glance

Court

Decision date

Source

Judgment (46 paragraphs)

Melbourne Domain Pty Ltd v Melbourne CC [2013] VCAT 1832 (23 October 2013)

Parties