The applicant has entered into an agreement with the owner of 377 George Street in relation to a set of agreed privacy measures between the proposed building, and the building proposed for 377[3]. This is a private agreement between the applicant and the owner of an adjoining property who is not a party to this application.
The existence of the agreement is a relevant consideration for us but we also need to decide whether or not it produces an appropriate outcome and in regard to the range of planning considerations outlined above. Moreover, we need to be aware that in resolving the privacy arrangement between the subject land and 377 we have seen a pattern for decision making which should probably be applied to the future development of other properties to the south in George Street which also adjoin the subject land.
The agreement proposes a mixture of highlight windows for bedrooms and bathrooms and privacy screens on balconies. In respect of corner apartments in both developments which primarily face onto both Argyll Street, in our view the agreed solution is generally acceptable. However, we are concerned that the balcony screens proposed for the smaller apartments with a sole frontage to the laneway will unacceptably compromise other elements of the amenity of the future residents of those apartments.
For these apartments the balcony screens also screen the main living room windows and as a result significantly compromise the outlook from both the balcony and the apartment. Moreover, the screens further reduce sunlight access to both the balconies and the apartments and compromise daylighting.
Does the additional privacy resulting from these screens outweigh these disbenefits? We are of the opinion that the compromise which results in relation to daylighting and sunlight is unacceptable because of the constrained amenity already affecting these apartments. The design of the proposed apartments at 377 demonstrates that it is possible to achieve at approximately 9 metres separation between living room windows. If there is no screening the balconies are only separated by the 4 metre wide laneway.
On balance we think this is a preferable outcome. A future occupant may not use such a balcony to have a cup of coffee in their pyjamas but the same occupant may never use of the balcony, other than to store junk, if it is an narrow space largely enclosed by the apartment building itself and 1.7 metres high privacy screens.
To the west, west facing apartments in the proposed building face onto 324 Napier Street across a 3 metre wide private laneway. We do not think any equitable development issues arise in respect of this interface. 324 Napier Street is a narrow site with a long frontage to Napier Street in addition to its frontage onto Argyle Street. In our opinion this land can be efficiently developed so that all living rooms and balconies for the proposed apartments can front onto either Argyle or Napier Street. For this reason we consider that the apartments in the proposal before us will not necessarily affect the privacy of future apartments at 324 Napier Street or compromise the development potential of this land.
[2]
Within the proposed development there are 15, one bedroom apartments in which the bedroom relies on borrowed light. There are two designs, Design 1 with a bedroom directly behind the living space deriving its light from the main living room window and Design 2 with the bedroom having a highlight window onto the central hallway which is intended to be a source of both light and ventilation.
[3]
There are two issues, are there too many apartments relying on borrowed light, and should Design 1 with the bedroom directly behind the living room be preferred.
Dealing with the second of these issues first we are of the opinion that Design 1 with the bedroom directly behind the living room is to be preferred. The other design is likely to be inadequate in terms of daylighting, and exposes these bedrooms to noise and privacy issues from within the shared hallway.
Having concluded that Design 1 is an acceptable approach to the design of small one-bedroom apartments we do not think the number of apartments of this design is a relevant consideration. In part this conclusion is informed by our opinion that alternative approaches to design, avoiding reliance on borrowed light, would seriously compromise the number of dwellings which could be accommodated on the land, and is no merely a consequence of poor design.
[4]
The respondent objectors are concerned that their amenity will be affected by the operation of the proposed cafe and shop and by traffic related issues. Council does not consider there to be unacceptable traffic impacts and supports the proposed commercial uses although it proposes a 7:30am start for the proposed cafe when the applicant seeks a 6.30am start.
Argyle Street is somewhat narrower than surrounding streets but it is not a very narrow Street and it operates as a one-way street avoiding the conflicts which can arise as a result of opposing traffic movements. Access to the proposed car park is off a 3.9 metre wide laneway which runs south from Argyle Street. Having regard to the likely traffic generation it is difficult to see that this create traffic circumstances which would unacceptably affect amenity.
The objectors referred to the difficulty large trucks have in accessing a Johnson Street business via the 3.9 metre wide laneway. We accept that this is the case but it is an existing situation. It is not inevitable that this proposed apartment building with its small cafe and shop is likely to result in very large trucks using this laneway on a regular basis.
Apartment buildings generate a regular demand for waste collection and a more irregular demand for furniture removal and delivery. The first of these issues can be managed by a permit a condition requiring a waste management plan. The second is an issue which must be managed by Council as the road authority. It is the Council's strategic plan that this this area within the DDO10 develop as a relatively intensive mixed use area. The responsive management of on street parking and loading is part of the strategic process.
The Council has adopted the Business 2 Zone for the Johnson Street activity centre precisely because it wants to encourage a mix of commercial activities, particularly ground floor level, as well as encouraging residential development. The proposed shop and cafe respond to this strategy. Given the location of these two uses and the proximity of busy activity centres in Brunswick and Smith streets it is unlikely that either the shop or the cafe will serve anything other than a very local clientele. Again we consider that there is unlikely to be a significant amenity effect arising from these two uses, particularly when one has regard to the strategic context. Consequentially, we do not agree that the earliest start time should be 7:30am. It is our observation that cafes that open early in the morning are quiet places, attracting a relatively small number of patrons most of whom simply want to have a coffee and read the paper before embarking on the working day.
[5]
It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority set aside and a permit granted.
In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.
[6]
Before the development starts, amended plans 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 decision plans prepared by ITN Architects and known as plans A1 - A14 and date stamped 23 December 2011 (except A4, A8 and A9 which are date stamped 1 February 2012), but further modified to show:
(a) The finished floor levels at the property vehicular entrance set a minimum of 40mm above the edge of the Right of Way;
(b) A demolition plan and elevations clearly depicting which sections of the former Pfeiffer Engineering factory at 160 Argyle Street, Fitzroy are to be demolished;
(c) Modifications to the atrium detail generally as per sketch plan 6.1 & 6.2 prepared by ITN Architect dated 24 July 2012 contained in Appendix G of the Statement of Evidence of Catherine Heggen dated August 2012 but modified to increase the sill heights of the internal windows to 1.8m;
(d) Privacy screening to a height of 1.7m for apartments 09, 18, 27 and 33, generally as per sketch plan 0.01 & 0.02 prepared by ITN Architect dated 28 February 2012 contained in evidence prepared by Catherin Heggen (Appendix G);
(e) Layouts of one bedroom apartments (apartments 11, 12, 15, 16 and 17 on Level 2 and apartments 20, 21, 24, 25 and 26 on Level 3) to be modified to orientate bathrooms to the internal atriums;
(f) The provision of a minimum of 3 cubic metres of storage area for each unit;
(g) Details of the proposed art wall along the eastern boundary including materials, degree of perforation and method of fixing;
(h) All works recommended in the Acoustic Report referred to in condition 5.
(i) The ground floor door to western right opening inwards unless otherwise required to open outwards by applicable building regulation;
(j) The relocation of the rainwater pump from the basement blind aisle extension to a location to the satisfaction of the Responsible Authority;
(k) An updated schedule of all materials and finishes (including materials samples, colours and coloured elevations/perspectives). The schedule must show the materials, colour, finish and application methods (where relevant) of all external walls, roof, fascias, window frames, glazing types, cladding, doors, fences and privacy screens;
(l) A landscape plan submitted and prepared by a suitably qualified and experienced person or firm. The plan must show:
(i) the location, quantity and maturity of all proposed plants including, ground floor Argyle Street frontage, internal atrium landscaping communal areas at Levels 4 and roof level;
(ii) the botanical name of all new planting;
(iii) details of all proposed design features such as paths, paving and fencing for all areas; and
(iv) details of proposed watering and maintenance methods for all proposed planting, including use of recycled water;
(m) Details of the proposed perforated metal security door to the car park;
(n) All works recommended in the ESD report referred to in condition 3;
[7]
All development and use must accord with the endorsed plans. Any alterations must be approved in writing by the Responsible Authority.
[8]
Before the plans are endorsed, an amended Environmentally Sustainable Report to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the report will then form part of this permit. The report must be generally in accordance with the report ITN Architects 160 -164 Argyle Street, Fitzroy ESD Town Planning Report (21 December 2011) prepared by Hyder but modified to address the following:
(a) energy reports for all apartments on Level 3 and Level 5 showing they exceed minimum BCA standards; and
(b) A STORM rating report.
[9]
Before any demolition or construction works start, a fully detailed 'demolition method statement' to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the statement will be endorsed and will then form part of the permit. The 'demolition method statement' must fully describe and clearly demonstrate that the construction methods to be used on site will ensure that the building fabric shown to be retained on the plan approved under Condition 1 of the permit will be safeguarded during and after the demolition process has occurred, or finished in accordance with the plans approved under Condition 1. The statement must detail the necessary protection works required to retain the integrity of the former Pfeiffer Engineering factory building. Any recommended protection works be required under the demolition method statement must be carried out to the satisfaction of the Responsible Authority.
[10]
Before the plans are endorsed, an acoustic report prepared by a suitably qualified acoustic engineer must be submitted to and approved by the Responsible Authority. When approved, the acoustic report will be endorsed and will then form part of the permit. The report must include an assessment:
(a) to protect all dwelling occupants from external noise sources with specific regard to Johnston Street and off-site commercial areas;
(b) the mechanical plant equipment and ventilation mechanisms installed or constructed as part of the development;
(c) protect dwelling occupants with a direct interface to commercial tenancies below from associated commercial noise sources; and
(d) protect dwelling occupants from internal noise from the internal atrium.
Before the occupation of the building, the recommendations of the endorsed acoustic report must be implemented to the satisfaction of the Responsible Authority. Where the recommendations require ongoing implementation then they must continue to be implemented and all recommended works must be maintained to the satisfaction of the Responsible Authority.
On the completion of the works in accordance with condition 6 above and before the occupation of the dwellings, an updated acoustic report prepared by a suitably qualified acoustic consultant must be submitted to the satisfaction of the Responsible Authority demonstrating that:
(a) the level of noise attenuation required by the endorsed acoustic report is achieved; and
(b) compliance with State Environment Protection Policy N-1.
[11]
Before the occupation of the building a car parking allocation schedule must be submitted to and approved by the Responsible Authority. The plan must show car parking allocated as follows:
(a) 25 residential spaces based on the following rates:
(i) 5 spaces for one bedroom;
(ii) 16 spaces for two bedroom;
(iii) 4 spaces for three bedroom (the tandem spaces located at basement level to be allocated to one of the three bedroom dwellings;
(b) 1 shop space; and
(c) 1 food and drink premise (café) space;
[12]
When approved, the car parking allocation schedule will be endorsed and will then form part of the permit. The endorsed car parking allocation schedule must be implemented to the satisfaction of the responsible authority. The car parking allocation schedule must not be amended without the further consent of the responsible authority.
[13]
Before the occupation of the building starts or by such later date as is approved in writing by the Responsible Authority, the landscaping works required in condition 1(h) and shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority.
[14]
The collection of all waste must be in accordance with the approved Waste Management Plan. The plan must be generally in accordance with the plan which forms part of the permit application. Rubbish, including bottles and packaging material, must at all times be stored within the building and screened from external view and be managed to the satisfaction of the Responsible Authority in accordance with the approved Waste Management Plan.
All waste collection and recycling collection may be undertaken only between the hours specified in Council's Local Law No. 3.
[15]
No more than 30 patrons are permitted in the food and drink premises (café) at any one time, unless with the further written consent of the Responsible Authority.
The food and drink premises (café) may only be open to customers between the hours of 6.30am and 8.30pm (seven days a week), unless further written consent is granted by the Responsible Authority.
[16]
The shop use may only operate between the hours of 9am and 6pm (seven days a week), unless further written consent is granted by the Responsible Authority.
[17]
The provision of music on the premises (shop and food and drinks premises (café)) must be limited to background music, unless with the written consent of the Responsible Authority.
The uses must comply at all times with the State Environment Protection Policy - Control of Music Noise from Public Premises (SEPP N-2), to the satisfaction of the Responsible Authority.
[18]
The use and development must be managed so that the amenity of the area is not detrimentally affected including through:
(a) the transport of materials, goods or commodities to or from land;
(b) the appearance of any buildings, works or materials;
(c) the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;
(d) the presence of vermin; or
(e) others as appropriate.
[19]
Prior to completion of the development, no fewer than 27 car parking spaces and 38 bike spaces must be provided in accordance with the endorsed plans and to the satisfaction of the Responsible Authority.
Before the uses starts, the area set aside for the parking of vehicles, together with the associated access lanes as delineated on the endorsed plan must:
(a) be provided and completed to the satisfaction of the Responsible Authority prior to the commencement of the development hereby permitted;
(b) thereafter be maintained to the satisfaction of the Responsible Authority;
(c) be made available for such use at all times and not used for any other purpose; and
(d) be properly formed to such levels that it can be used in accordance with the endorsed plan; and
(e) be drained and sealed with an all weather seal coat,
[20]
all to the satisfaction on the Responsible Authority.
[21]
Before the uses start, external lighting capable of illuminating access to the basement car park, pedestrian walkway, laneway and dwelling entrances must be provided. Lighting must be located, directed, shielded and of limited intensity so that no nuisance or loss of unreasonably amenity is caused to any person within and beyond the site, to the satisfaction of the Responsible Authority.
[22]
Any damage to road(s) and footpath(s) or other Council infrastructure as a result of the approved development must be reinstated prior to completion of the development and to the satisfaction of the Responsible Authority.
Prior to the completion of the development, the eastern right of way must be reconstructed at the cost of the permit holder and to the satisfaction of the Responsible Authority.
Any redundant vehicle crossings must be broken out and reinstated with paving, kerb and channel of the surrounding area to the satisfaction of the Responsible Authority. The cost of these reinstatement works must be borne by the Permit Holder.
Existing footpath, kerb and channel, and road pavement surface levels must not be altered unless with the prior written consent of the Responsible Authority.
Prior to the completion of the development, any wall on the boundary of an adjoining property must be cleaned and finished to the satisfaction of the Responsible Authority.
Before the occupation of the building, areas must be provided inside the property line and adjacent to the footpath to accommodate pits and meters. No private pits, valves or meters on Council property will be accepted.
[23]
Before the development starts (including demolition), a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed as evidence of its approval. The plan must provide for or include the following:
(a) a pre-conditions survey (dilapidation report) of the subject site and all adjacent Council roads frontages and nearby road infrastructure;
(b) protection works necessary to road and other infrastructure (limited to an area reasonably proximate to the site);
(c) remediation of any damage to road and other infrastructure (limited to an area reasonably proximate to the site);
(d) containment of dust, dirt and mud within the site and method and frequency of clean up procedures in the event of build-up of matter outside the site;
(e) on site facilities for vehicle washing;
(f) the location of loading zones, site sheds, materials, cranes and crane/hoisting zones, gantries and any other construction related items or equipment to be located in any street;
(g) site security;
(h) Management of any environmental hazards that the activities on-site pose including but not limited to: contaminated soil, materials and waste, dust, stormwater contamination from run-off and wash-waters, sediment from the site on roads, washing of concrete trucks and other vehicles and machinery, spillage from refuelling cranes and other vehicles and machinery;
(i) construction program ;
(j) preferred arrangements for trucks delivering to the site including delivery and unloading points and expected frequency;
(k) parking facilities for construction workers;
(l) measures to ensure that sub-contractors/tradespersons operate in accordance with the Construction Management Plan;
(m) an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services;
(n) an emergency contact that is available for 24 hours per day for residents and the Responsible Authority in the event of relevant queries or problems experienced;
(o) the provision of a traffic management plan to comply with provisions of AS 1742.3-2002 Manual of uniform traffic control devices - Part 3: Traffic control devices for works on roads;
(p) a noise and vibration management plan showing methods to minimise noise and vibration impacts on nearby properties and to demonstrate compliance with Noise Control Guideline 12 for Construction (Publication 1254) as issued by the Environment Protection Authority in October 2008, to the satisfaction of the Responsible Authority. In this regard, consideration (amongst other matters) should be given to:
(i) using lower noise work practice and equipment;
(ii) the suitability of the site for the use of an electric crane;
(iii) silencing all mechanical plant by the best practical means using current technology; and
(iv) fitting all pneumatic tools operated near a residential area with an effective silencer on their air exhaust port.
Except with the written consent of the Responsible Authority, demolition or construction works may be carried out only between: 7 am - 6 pm, Monday-Friday (excluding public holidays) and 9 am - 3 pm, Saturday and public holidays. No work is to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environmental Protection Authority's Guidelines on Construction and Demolition Noise.
The development once commenced, must be completed to the satisfaction of the Responsible Authority.
[24]
Noise from the land must comply at all times with the State Environment Protection Policy - Control of Noise from Commerce, Industry and Trade (SEPP N1), to the satisfaction of the Responsible Authority.
[25]
This permit will expire if one of the following circumstances applies:
(a) The development is not started within two years of the date of this permit.
(b) The development is not completed within four years of the date of this permit.
(c) The use is not started within five years of the date of this permit.
[26]
The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.
[27]
[1] Notwithstanding the opinion of its heritage adviser and expert witness that a four level building was preferable based on heritage considerations alone.