Victorian Civil and Administrative Tribunal|2003-04-29|Before: Mr J, Ms J

Merchant Pacific Pty Ltd v Banyule CC and Ors [2003] VCAT 517 (29 April 2003)

Application under s. 77 of the Planning and Environment Act 1987; Banyule Planning Scheme; Multi Level Building; Business 2 Zone; Design and Development Overlay Schedule 5; Development Guidelines; Weight to be given to Development Guidelines; Melbourne 2030; Building Scale; Landmark Building; Traffic; Car Parking; Impacts of Light Emissions.

Construct an 11 storey building (plus 3 basement levels) comprising shops and café, offices (levels 1-6) and 26 apartments (levels 7-11), a reduction in car parking, waiver of loading zone requirement, and alteration of access to a Road 1 Zone

The decision of the Responsible Authority in permit application no. P422/02 is affirmed. A permit is not granted and no permit is to issue.

Mr J Gobbo QC and Ms S Brennan of Counsel appeared by direct brief on behalf of the Applicant for Review. Mr Gobbo QC called the following persons to give evidence:

s Mr C Butler, Traffic Engineer of Grogan Richards Pty Ltd;

s Mr M Stokes, Landscape Architect of Tract Consulting;

s Mr T Biles, Town Planner of Contour Consultants Pty Ltd; and

Mr J Cicero of Best Hooper Solicitors appeared on behalf of the Responsible Authority.

Mr Z Spark, Ms C Tramontana, Mr M McKelson, Mr C Greenwood, Ms J Crone, Ms R Roberts, Mr G Speers, Mr A Marotta and Mr G Baker appeared as Respondent Objectors. Ms Crone tendered read a written submission on behalf of Ms L Cuthbertson.

Dr B Clark appeared as a Respondent Objector and gave evidence in relation to the light-related effects of the proposal.

The parties made written and verbal submissions and a number of plans, photographs and other documents were tendered to the Tribunal. All documentary material is retained on file. Witnesses were made available for cross-examination. The subject site and locality were inspected by the Tribunal subsequent to the Hearing.

1. This is an Application under Section 77 of the Planning and Environment Act 1987 brought by Merchant Pacific Pty Ltd to review a decision made by the City of Banyule ("the Council") to refuse to grant a permit in application no. P422/02. A Notice of Refusal was issued by the Council on 21 October 2002 on the following grounds:

1. The proposal is an overdevelopment of the subject site.

2. The height, bulk, scale and design of the building is inappropriate for the site and will have a detrimental impact on the surrounding area.

3. The proposal fails to meet the objectives of the Development Guidelines for the site.

4. Insufficient information has been provided to demonstrate that the proposal will meet the requirements and objectives of the Development Guidelines for the site.

5. Inadequate on site car parking is provided for the development.

6. The proposal will result in detrimental traffic impacts on the surrounding residential streets.

7. The proposal will have a significant impact on the amenity of nearby properties.

2. An Application for Review was lodged on 16 December 2002 by Mr Govenlock of Urbis on grounds that rebut those set out in the Notice.

3. At the commencement of the Hearing, Ms Crone and Dr Clark each sought leave to be joined as a party to the proceedings. There being no objection, the Tribunal granted leave for these persons to be joined as parties.

4. At the commencement of the Hearing, Mr Gobbo QC tendered a written statement of evidence prepared by Mr M Bialek. The statement had not been circulated in accordance with the Tribunal's Practice Note. On the afternoon of the second day of the Hearing, and there being no objection, the Tribunal admitted the evidence.

5. During the morning of Day 1 of the Hearing, Ms Roberts sought leave to be joined as a party to the proceedings. There being no objection, the Tribunal granted leave for Ms Roberts to be joined as a party.

6. The subject site is triangular in shape and is bounded by three major roads: the Bell/Banksia Street dual carriageway cutting (south), the residual Bell Street to the north (one way east bound) and Upper Heidelberg Road to the east. The land appears to be residual to the major road works completed some years ago. The site has a frontage of 86.7 metres to Bell Street, 70.2 metres to Upper Heidelberg Road and 107.75 metres to Bell-Banksia Link and a total site area of 3360 square metres. It is currently utilised as an unsurfaced commercial car park with several trees located in the centre of the site. There is a fall of approximately 5 metres from east to west. The land is elevated above the footpath along its northern and eastern boundaries with stone retaining walls in place.

7. To the south of the review site, on the opposite side of Bell/Banksia Road cutting, is a large water storage facility comprising a water tank approximately 65 metres in diameter and nominally 8 metres above ground level. We understand that it is owned by Melbourne Water. Residential development is located adjacent to the reserve where the tank stands, and further to the south.

8. To the east, on the opposite side of Upper Heidelberg Road, is the Austin Hospital which comprises a number of large institutional buildings, some of which are currently undergoing redevelopment. Some car parking for the Hospital is located immediately adjacent to the opposite side of Upper Heidelberg Road.

9. To the east is also the signalised intersection of Bell Street and Upper Heidelberg Road. Further to the east is the core of the Burgundy Street shopping centre.

10. To the north, on the opposite side of Bell Street, are commercial activities associated with the local shopping centre located further along Bell Street to the west. These premises are of one-two storey in scale. A residential area is located further to the north along Upper Heidelberg Road. There is one residential property on the north side of Bell Street that faces toward the subject site and the sideage of another that fronts Upper Heidelberg Road.

11. Parking restrictions apply in nearby local streets.

12. Heidelberg Train Station is located approximately 700 metres (walking distance) east of the site and several bus routes are available from nearby bus stops.

13. It is proposed to construct an 11 level development plus three levels of basement car parking. The three level basement is proposed to be accessed via a ramp provided at the northern corner of the site, off Bell Street. The car park provides for a total of 228 spaces. Additional parking is provided on the ground level and is accessed from a separate entrance off Upper Heidelberg Road. That has a total of 41 spaces.

14. The ground level of the development is also proposed to comprise shops, with a floor area of around 115 square metres, and a 53 seat café. The retail and café areas face Bell Street. The residential lobby area is also accessed from Bell Street with the commercial lobby provided to Upper Heidelberg Road. We were advised that the forecourt to the building on the corner of Upper Heidelberg Road and Bell Street is to be available for the exhibition of community art and provides 180 square metres of communal open space. Part of the café would be available for art purposes.

15. The ground floor is proposed to be setback 3 metres from Bell Street and varying between 3 metres and 14 metres to Upper Heidelberg Road as a result of the curved façade. The building is constructed on the title boundary to Bell-Banksia Link.

16. Levels 1 - 6 comprise offices, with a total of 10,300 square metres of floor space. At these levels, the building is proposed to be setback by 0.3 metres from Bell Street and an average of 10 metres from Upper Heidelberg Road. It would be constructed on the site boundary abutting the Bell-Banksia Link.

17. Levels 7-11 contain 26 residential apartments comprising 2 single bedroom, 16 two bedroom and 8 three bedroom units. Each apartment has a balcony area of a minimum of 8 square metres with a larger communal open space area facing north located on level 7. These four residential levels are setback further along the north and east façades; by around 9.5 - 14.7 metres from Bell Street and at least 14 metres from Upper Heidelberg Road.

18. The development would have a maximum height of 41.5 metres above natural ground although Mr Cicero described the height as up to 43 metres at the lowest point of the site. The site coverage at ground level is approximately 55%. The east façade is curved in form with a projecting feature stairwell. The curved stairwell is also a feature to Bell Street. There is a strong triangular corner/apex element.

19. A landscape plan was tendered through Mr Stokes's evidence. The landscape theme includes eucalypts planted in the forecourt and along the east boundary and part of the north boundary. The planting height is 3 and 10 metres, and the trees are expected to grow to a height of approximately 25 metres. A stone wall to the base of the landscaping at the north-east corner and a raised external dining area are also part of the proposal. Landscaping is proposed along the Bell Street frontage, including some works in the road reserve. Bluestone paving is included.

20. The subject site is zoned Business 2 under the provisions of Clause 34.02 of the Banyule Planning Scheme ("the Scheme"). Shop and offices are Section 1 uses with buildings and works approval required. A permit is required to use the land for the purpose of dwellings given that the frontage to the dwellings at ground level is over 2 metres in width.

21. Decision guidelines are set out at Clause 34.02 in relation to buildings and works including matters such as the interface with adjoining zones, the streetscape, pedestrian and vehicle movement, parking provision and solar access. Decision guidelines are also set out in relation to the use of land. Notice and appeal exemption provisions are set out in the Clause but they are not triggered in this case.

22. Clause 19.03 sets out design principles that are required to be taken into account. As relevant to the Application, they are:

s Development must take into account the natural, cultural and strategic context of its location.

s A comprehensive site analysis should be the starting point of the design process and form the basis of consideration of height, scale and massing of new development.

s The public realm, which includes main pedestrian spaces, streets, squares, parks and walkways, should be protected and enhanced.

s Landmarks, views and vistas should be protected and enhanced or, where appropriate, created by new additions to the built environment.

s Design of the relationship between buildings and footpaths and other pedestrian spaces, including the arrangement of adjoining activities, entrances, windows, and architectural decoration, should enhance the visual and social experience of the observer.

s New development should contribute to the "complexity" and diversity of the built environment.

s The development process should be managed so that sites are not in an unattractive, neglected state for excessive periods and the impacts from vacant sites are minimised.

s All building, subdivision and engineering works should promote more efficient use of resources and energy efficiency.

s New development should aspire to the high standards in architecture and urban design.

s Any rooftop plant, lift over-runs, service entries, communications devices, and other technical attachment should be treated as part of the overall design.

s Recognition should be given to the setting in which buildings are designed and the integrating role of landscape architecture.

23. A Design and Development Overlay (Schedule 5 Bell/Banksia Site, 443 Upper Heidelberg Road, Heidelberg) applies to the land pursuant to Clause 43.02. The provisions of Clause 43.02 are:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To identify areas which are affected by specific requirements relating to the design and built form of new development.

A schedule to this overlay must contain a statement of the design objectives to be achieved for the area affected by the schedule.

24. Pursuant to Clause 43.02, a permit is required to construct a building or construct or carry out works. Buildings and works must be constructed in accordance with any requirements in a schedule to the Overlay. Decision guidelines are set out and include:

s The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

s The provisions of any relevant policies and urban design guidelines.

s Whether the bulk, location and appearance of any proposed buildings and works will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area.

s Whether any proposed landscaping or removal of vegetation will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area.

s The layout and appearance of areas set aside for car parking, access and egress, loading and unloading and the location of any proposed off street car parking.

s Any other matters specified in a schedule to the overlay.

25. The provisions of Schedule 5 (in their entirety) are:

s To give direction to the design of any proposed development on the site.

s To minimise any adverse impact from a development on the site on neighbouring uses.

s To minimise any adverse visual impact from a development on the site on the urban hinterland and the character of the surrounding urban development.

In considering any application to use, develop or subdivide land, the responsible authority shall have regard to the _"Development Guidelines Bell/Banksia Site 443 Upper Heidelberg Road Heidelber_g" adopted by Banyule City Council on 30 June, 1997.

26. No exemptions from notice or appeal rights are set out in Schedule 5.

27. We refer to the 1997 Development Guidelines Bell/Banksia Site 443 Upper Heidelberg Road Heidelberg as the "Development Guidelines" for ease. We return to these again later.

28. Car parking requirements are set out at Clause 52.06 of the Scheme. Specific requirements are set out for shop, office, restaurant, and dwelling. It is common ground between the parties that based on the requirements of the table to Clause 52.06, a total of 366 car spaces would be required.

29. The decision guidelines of Clause 52.06-1 require a range of matters to be considered if a permit application seeks to waive or reduce the parking requirement. Those matters are (inter alia):

* The availability of car parking in the locality.

* The availability of public transport in the locality.

* Any reduction in car parking demand due to the sharing of car spaces by multiple uses....

* Any car parking deficiency or surplus associated with the existing use of the land.

30. Clause 52.07 requires consideration of loading and access arrangements. In this case, a permit is required to waiver the loading requirements set out in the Scheme. A permit may be granted if the land area is insufficient or adequate provision is made for loading and unloading to the satisfaction of the Responsible Authority (or Tribunal on review).

31. Pursuant to Clause 52.29, a permit is required to construct or alter access to a Road 1 Zone. Upper Heidelberg Road, Bell Street and Bell/Banksia Street link are all within the Road 1 Zone. We were advised that VicRoads has not objected to the grant of a permit for the proposal, subject to a number of conditions being included on any permit to issue. Those conditions are set out in a letter to the Council (September 2002) and included as Appendix C to Mr Butler's statement of evidence.

32. Clauses 14, 15.12, 16, and 17, Clause 21 (Municipal Strategic Statement), Clause 22.04 (Environment Policy), Clause 22.06 (Housing Policy), Clause 22.07 (Neighbourhood Character Policy that applies to all residential development in the municipality) and Clause 65 (general decision guidelines) are relevant and have been taken into account by the Tribunal. We have also considered Clause 22.01 (Middle Yarra Environs Policy) as submissions were made that the proposal would impact on the environment of the Yarra and its associated parklands.

33. Land in Bell Street, to the west of the review site, is mainly located within a Business 3 Zone. The Austin and Repatriation Hospital areas and Melbourne Water tank are located in a Public Use Zone (under different Schedules) and other land is zoned Residential 1.

34. Melbourne 2030 and Amendment VC16 were introduced on 8 October 2002. We have taken Melbourne 2030, its draft implementation plans and the draft Clause 12 of the State Planning Policy Framework into consideration. "Heidelberg" and "Ivanhoe" are identified as major activity centres and the "Heidelberg - Austin Repatriation Medical Centre Biomedical Alliance Precinct" is identified as a specialised activity centre for health research. The boundaries are not specifically identified in the documents accompanying Melbourne 2030. We note that the draft Implementation Plan refers relating to activity centres to future strategic directions for each of these classifications of centres.

35. We have considered the submissions and evidence presented and have inspected the site and locality. We do not recite all of the submissions, evidence and tendered material, as the documentary material is retained on file.

36. We set out our findings in relation to the key issues in this Application which are:

s whether the land use components are acceptable having regard to the purpose of the Zone and policies of the Scheme.

s whether the form of the proposed development is an acceptable response in terms of character of the surrounding area and wider urban landscape having regard to the applicable planning policies.

s whether the access and parking arrangements are acceptable.

s whether the proposal results in unreasonable off-site amenity impacts.

s whether the proposal results in an unacceptable increase in light emissions.

37. In this Application, a permit is only required to use the land for the purpose of dwellings as the other land use elements are included in Section 1 of the table to Clause 34.02. There was no issue raised with the proposed land use components by any party. While there may be an arguable point to require a higher proportion of the development to be utilised for offices, given the zoning of the land and policies of the Scheme, we do not find the siting of 26 residential apartments above the fairly substantial commercial component to be inappropriate.

38. One land use issue did, however, arise through a discussion in the Hearing about car parking. During Mr Butler's evidence, we asked a number of questions about the use of the land by medical practitioners, that is, seeing patients on-site. Mr Butler explained that his assessment was based on the use as serviced offices and that a different (and higher) parking rate would apply for a medical centre. Toward the conclusion of the Hearing, Mr Gobbo and Mr Cicero discussed a draft permit condition that sought to prevent the land being used for the purpose of a medical centre, primarily to allow the issue of the higher parking requirement to be assessed through a separate permit process.

39. We have concern about this matter for several reasons including:

s First, a purpose of the Business 2 Zone is to "encourage the development of offices and associated commercial uses". To specifically exclude a commercial use seems contrary to the purpose of the Zone and the principles of orderly and proper planning. It does not sit comfortably with the policies at Clause 21.04-2 that seek to facilitate projects that will support business growth, employment and service delivery. We are also inclined to consider it to be contrary to the directions of Melbourne 2030 that encourages uses that complement the role and function of the specialised activity precinct.

s Second, in principle, the subject site is suitable for medical-related uses given its proximity to a major and developing hospital precinct. The zoning of the land supports that, as does the policy framework of the Planning Scheme, for example:

Ø Clause 18.06-1 requires the following - "Consideration should be given to planning public and private developments together and to including some degree of flexibility in use"

Ø Clause 21.04-4 places some emphasis on the coordinated planning and integration of health facilities in a manner that minimises amenity impacts on surrounding areas.

s Third, Mr Govenlock's evidence identifies the potential for linkages with the Hospital including office uses "as part of the activities associated with the Austin Hospital". He confines the potential to health-related businesses such as insurance, recruitment for medical staff and legal support to supplement the role and function of the Hospital. However, land use pressures around many major hospital facilities are renowned, including a demand by specialist practices. This has led some Councils to introduce local policies to guide the consideration of applications for medical centres in residential zones near to hospitals, such as Box Hill and Sunshine (Manningham and Brimbank Planning Schemes respectively). Subject to parking, the subject site is likely to be appropriate for some specialist medical-centre type activities, as it is within a Business 2 Zone. Allowing such use could assist to take pressure off the potential for encroachment of non-residential uses into residential areas. This is possibly alluded to at Clause 21.04-4 when the Banyule Planning Scheme makes reference to the need to address off-site impacts of the redevelopment of the Austin and Repatriation Medical Centre in terms of parking and "ancillary uses".

s Fourth, and putting aside the question as to whether such a permit condition would be lawful, in our view the proposed restriction highlights a wasted opportunity. It would indeed be a pity to construct a building on the land that could not potentially be used for specialist medical services on the basis that car parking considerations were not part of the initial planning.

40. This matter is not properly a basis for us to refuse the current proposal and we do not do so. Rather, we express our concerns for the assistance of the parties. Given our conclusions in relation to built form issues, we consider that it may be prudent for any revised proposal to address the potential for the subject land to be available for use by, for example, specialist medical practitioners with patients in attendance. If car parking is a constraint, as we can understand it may be, then allowing for part of the office floor area to be available for that type of use could be an option.

41. We refer first to the planning policy framework that guides our consideration of the built form and design merits of this proposal.

42. The parties relied on many of the Scheme provisions we have nominated above in addition to Melbourne 2030 and the Development Guidelines (1997).

43. The subject site is not identified as being within either of the closest activity centres (Heidelberg that is focused on Burgundy Street or Bell Street that is further to the west). It is, however, opposite a number of premises within a Business 3 Zone that includes several shops and some office-based uses. They are single storey in form, and there are larger and expansive showroom and peripheral sales facilities also along Bell Street. While activity centre policies within the Scheme and Melbourne 2030 may therefore be of some relevance, it remains that the subject land is not actually within such a centre but could be said to be on the "periphery".

44. We note that Clause 21.04-2 refers to the policy for commercial development and encourages larger-scale office development to locate in nominated areas on the periphery of (inter alia) the Heidelberg centre - that is said by the Scheme to be the basis for the application of the Business 2 Zone. The same Clause notes that the Business 3 Zone is applied to in (inter alia) Bell Street to support and encourage service businesses and peripheral sales.

45. These roles are relevant to built form and design considerations. Element 6 - Built Environment (Clause 21.04-6) sets out the Council's desire to achieve a safe, attractive and high quality environment and new buildings whose design, form and bulk are consistent with or make a positive contribution to the character of an area. Protection and enhancement of diverse landscape values is a further objective. Several strategies of particular relevance to submissions presented by the parties are:

* Encouraging additional or replacement planting consistent with the landscape character of the area in association with new development or redevelopment.

* Encouraging dwelling designs, densities and site layouts which will ensure the protection and enhancement of neighbourhood and landscape character.

* Discouraging architecture and urban design which would be detrimental to identified streetscape and neighbourhood character.

* Encouraging resource- and energy-efficient design and site layout for buildings and infrastructure.

46. At Clause 21-04-6, the implementation of the strategies will be achieved by (inter alia) applying a DDO to No. 443 Upper Heidelberg Road. The subject site is within an area identified on the map accompanying the Clause where drainage issues are relevant and is opposite areas where urban design issues (built form, character, streetscape) are identified.

47. The local policies at Clauses 22.04, 22.06 and 22.07 refer to some general principles that are relevant to these proceedings. Despite a desire by some parties to do so, we are not persuaded that Clause 22.07 can be utilised in the same manner as if the subject site was in a residential area. There is common sense in this approach, given the zoning of the land and its separation from existing residential areas, and also business areas are not identified in the policy at Clause 22.07-3 (Garden Suburban areas):

Where a permit is required to develop or subdivide land in residential and rural residential areas it is policy to take the following description of key characteristics, objectives and statements of desired future character into account when considering any application. [Tribunal emphasis added]

48. We note that the submissions by Mr Cicero and Mr Gobbo reached similar conclusions that Clause 22.07 is of limited assistance.

49. Although questioned by some Objectors, we find that Melbourne 2030 is a strategic statement that, as Government policy, must be given weight pursuant to Section 60 of the Planning and Environment Act 1987. The draft Clause 12 and Implementation Plans are part of the Melbourne 2030 package released in October 2002, but it could be fairly argued that they carry different weight as draft documents.

50. Until further work is undertaken by local Councils and/or the State Government in the implementation of Melbourne 2030, there remains somewhat of a vacuum as to the extent of physical change that is sanctioned by Melbourne 2030.

51. We consider that the setting of the site, its Business 2 zoning, the policies of the Scheme, and Melbourne 2030, give weight to a building(s) of substance on the review site. Melbourne 2030 enshrines some long-standing metropolitan policies, such as urban consolidation. Nothing within it persuades us to depart from the conclusions we have reached as to the existing policies of the Banyule Planning Scheme, rather, it reinforces the direction in many facets.

52. The definition of the Heidelberg - Austin Repatriation Medical Centre Biomedical Alliance Precinct as referred to in Melbourne 2030 is not clear on the material before us. However, with the Austin Hospital site directly opposite, the former Repatriation Hospital a relatively short distance further west and the Warringal Hospital also within relatively close proximity, the subject site under its current zoning is positioned to be influenced by the development of those medical facilities.

53. We were provided with some information by Mr Cicero as to the future planning of the Austin and Repatriation Hospital sites, although we understand that at least one is exempt from the usual planning requirements. The plans show substantial buildings on the Austin site, of 6-11 storeys excluding basements and plant. The buildings are benched into that site, with the largest located further east, downhill toward the Heidelberg Railway Station.

54. The existing policies (eg. Clause 19.03) give weight to the protection and enhancement of the public realm and quality architecture and design. Energy efficiency is a further important consideration that also receives added weight in Melbourne 2030, as does quality design.

55. Before moving from the subject of relevant policies, it is important to remark on the question of whether this is a landmark site. Mr Cicero correctly indicated that there is nothing within the current Scheme policies or Melbourne 2030 that identifies the subject site as a landmark opportunity or specifically that a building on the subject site should be designed to be a landmark. However, when referring to the Development Guidelines (which we discuss below) the reality is properly acknowledged - the site is prominent (particularly when viewed from the west and east) and a development, over 3 storeys, would also be visible. A building may become a landmark for possibly no other reason that it will be seen. It is, however, relevant that Clause 19.03, which we have referred to above at paragraph 22, gives weight to the proposition that there will be occasions where it is appropriate for a landmark to be created. Given that a building on the subject site will be visible in a very wide arc, even at the Council's preferred maximum height of 5 storeys, we are cognisant that high quality design and architecture is very important in this case as the development would, in practice, be a landmark or marker for the local and wider communities. It may provide a "crown" as described by Mr McNabb. Therefore, we give weight to the physical circumstances of the site and its context that give justification for a landmark building on the subject site.

56. We are not distracted into lengthy discussions as to what constitutes a landmark. It is not in dispute that a landmark building does not have to be tall. Height is not crucial, albeit that it may be a factor. There are many qualities that could be displayed by a landmark building - related to the use to which the building is put or the function it serves, its position, its architectural qualities, its heritage or cultural values, or the circumstances of its design or construction. It may be radical in form and/or finishes; challenging conventional practice. It may simply be stylish.

57. We do not accept that height is "bad" and should automatically result in the rejection of the proposal, as was sought by some parties. Similarly, it is important to state that the visibility of a building on the review site does not automatically result in it having unacceptable visual bulk. While there are parts of Banyule that are regarded as significant because they are on a ridgeline, the subject site is not within a Significant Landscape Overlay or equivalent. By referring to a 5 level development, the Development Guidelines (which we come to next) endorse a proposal protruding above the ridgeline. We give weight to the landscape and cultural values that are sought to be protected by the Banyule Planning Scheme. However, the landscape values must be balanced with other policies in the Scheme - they do not carry over-riding weight particularly when, in this case, we have an Overlay that seeks to provide some specific direction as to the future development of the subject site. There may well be some tension as the Development Guidelines and we observe that they appear to pre-date the preparation/adoption of the Municipal Strategic Statement.

1997 Development Guidelines for the Site (Referenced at DDO5)

58. The Council and Objectors sought for any development on the subject site to be in accordance with the height and setbacks nominated as preferred in the 30 June 1997 Development Guidelines. The Applicant acknowledged that the Tribunal must have regard to the Development Guidelines, but stressed that there is no obligation on the Tribunal for the Guidelines to be strictly or inflexibly applied - they should be treated as signposts or pointers but are not a checklist for approval.

59. Other concerns raised by the Council included that the proposal would interrupt the skyline view along and beyond the northern site boundary, the articulation of the building does not sufficiently break down the mass and height, and the finishes relate to commercial buildings but not wider residential areas. While supporting the Council's position, Respondent Objectors referred to additional concerns such as the impact on views from the Yarra River environs and reflectivity. Submissions also sought to contrast the subject site with landmarks in places such as Doncaster.

60. These concerns in terms of built form were challenged mainly through the evidence of Mr McNabb, Mr Biles and Mr Bialek. We do not recite the evidence. It is suffice to record that all three experts concluded that a bold solution is acceptable or demanded by the site's position and its setting. Their evidence was that the proposal offers a high quality architectural solution, reading as a well proportioned and articulated structure without being monolithic. It would help to link a series of activity precincts located on an east/west axis that are presently separated by roads, such as the Bell/Banksia cutting. It would also link with the chimney and other elements in the Austin site. We add that both Mr Biles and Mr NcNabb placed some weight on Melbourne 2030 in terms of change that is foreshadowed in the suburban landscape - change that appears to be strongly opposed by some Objectors.

61. A detailed landscape concept prepared by Mr Stokes sought to complement the built form by a number of uniquely "Heidelberg" themes, including stone walls and stands of eucalypts. It is, we find, a landscape concept that has been well crafted and to be of immense appeal and merit.

62. We do not recite the provisions of the adopted Development Guidelines (June 1997). We note that having discussed two options (low-medium rise and multi-storey) the Guidelines acknowledge that the key differences between the options relate to "visual prominence" (page 8). Guidelines are set out for a low to medium rise building given that a high rise building (up to 40 metres) is said to "be visually dominant and have a negative impact on the broader neighbourhood and region". Six pages of guidelines are included addressing matters such as entry, architectural treatment, height, siting, landscaping, external finishes and treatments, and traffic.

63. In terms of height and siting, the adopted Development Guidelines state that:

s the height of any building should not exceed 5 storeys or up to 18 metres above the site's highest AHD.

s the site coverage is to be a maximum of 60% of the site area.

s an open intersection is sought to the north-east corner and "any building shall be detached from this corner of the site a minimum 15 metres along each boundary for a minimum of 15 metres from each boundary".

s a building envelope in excess of 2 metres shall be setback 10 metres from the northern and eastern boundaries.

64. Some other elements of relevance to submissions are that open space for residences are to be a minimum of 20 square metres per unit and reflectivity is to be limited to levels specified in the Development Guidelines.

65. Mr McNabb gave evidence that following a successful tender, he was commissioned by the Council in February 1997 to prepare Development Guidelines for the subject site as a result of a proposal for a 16 storey development that had been received by the Council. He explained the process through which the Development Guidelines were prepared. He also referred to his recommendations to the Council, as outlined in a document we identify as "April 1997", a copy of which was tendered by Mr Gobbo. We understand from Mr McNabb's evidence that there were discussions with Council officers as well as the proponent for the scheme then before the Council, but no consultation with other persons was said by Mr McNabb to have been undertaken by him.

66. We find the consultation process pursued by the Council in relation to the Development Guidelines to be of relevance. We understand from the information provided by Mr Cicero that the April 1997 document prepared by Mr McNabb was:

s received by Council officers and then modified by Council officers;

s advertised by way of letters to various persons and residents dated 15 May 1997;

s advertised by way of a notice in two local papers on 21 May 1997.

67. Submissions were required by 26 May 1997, only five days after the newspaper advertisements were published. Mr Cicero advised us that five submissions were received (including one from the proponent of the then current proposal) and the Development Guidelines were adopted by the Council in the same version as they had been exhibited on 30 June 1997.

68. This is, we remark, an extremely short time frame for submissions and an incredibly rapid process through which the Guidelines were finalised, advertised and then approved by full Council.

69. The relevance of detailing this process is to explain our conclusion that although we can accept that the Development Guidelines were advertised and submissions received, there appear to have been limited opportunities for involvement and meaningful community debate.

70. We have noted above that the Development Guidelines pre-date the new format Banyule Planning Scheme, which was exhibited and then considered by a Panel/Advisory Committee. The Panel/Advisory Committee report is dated August 1998. Mr McNabb stated in response to questions from the Tribunal that he did not recall any discussions with Council officers about a draft Municipal Strategic Statement or similar/other strategic planning framework as part of the preparation of his recommended guidelines. The Panel/Advisory Committee considering submissions in relation to the exhibited version of the new format Scheme received a submission contesting the inclusion of the Development Guidelines in the Scheme. It is not apparent from the Panel/Advisory Committee's report as to the extent to which they considered the content of the Guidelines, or even saw the documentation. The only comment that is made is that "the panel supports council's view that this is a prominent site and that design guidelines are warranted". The Panel/Advisory Committee supported the "inclusion" of the Guidelines and it is noteworthy, in our view, that they are referenced and required to be considered but they do not have the status of an incorporated document.

71. To return to the advice given to the Council by Mr McNabb. Mr NcNabb explained that his preference for a multi-storey development is set out in his April 1997 document. That document refers to (inter alia):

s a building up to 40 metres, with a site coverage of 33% and maximum plot ratio of 3:2.

s siting of a multi-level building to the south of a line projecting around 7 metres inside the northern boundary of the site - development within the 7 metre "zone" should be limited to 3 storeys to "ensure presentation and continuity of sky view for an observor looking along either Bell or Burgundy Street".

s development should avoid having a squat proportion.

s a large plaza or forecourt (750 square metres) provided and open to the north-east corner.

72. Our impression on reading the April 1997 document is that a slender tower element with a podium was supported. Another principle that appears important is the skyline view along the Bell and Burgundy Street corridors. We do not find in the April 1997 document some of the principles included in the adopted form of the Guidelines. An example is on page 6 where the adopted Guidelines state that:

Having regard to the location of the site, its topography and features, it is held that a multi-story high rise building would result in an unacceptable visual intrusion....

A multi-story building would effectively see the placement of a major interruptive element into the otherwise suburban landscape. There would be a significant negative visual impact within the regional vicinity of the site if a multi-story high rise building were to be constructed.

73. It is always open for a Council to adopt a different view to that provided by a consultant advising it, and there is nothing improper in the Council coming to an alternative position. However, we remain uncertain as to the strategic basis for the adopted position. We could assume from reading the adopted Guidelines that it is because the Council felt that a lower form would be less obtrusive and would relate better to the character of institutional and residential buildings in the vicinity (see page 7 of the adopted Guidelines). Having said that, the adopted Guidelines appear to have embraced the concept of retaining skyline views from Burgundy Street, with a reduced site coverage to achieve this end, and open space to the "northwest corner" (read north-east?) and this seems to accord with the approach advocated by Mr McNabb's April 1997 document. That is, some elements of Mr McNabb's document are retained while others are not.

74. Mr McNabb indicated in cross-examination that he was prepared to support the Development Guidelines as adopted by the Council supporting a lower rise development (5 storeys/18 metres at 60% site coverage) but his preference was for a multi-storey building on the basis he recommended. In assessing the current proposal against his recommended April 1997 document, he conceded that some elements were not met, such as the setback from the north-east corner, the height and site coverage. Mr McNabb said that although the current proposal does not meet all of his recommended guidelines, he considered it to be acceptable on the basis that the Guidelines are an ideal and commercial realities may well require some ideals to be reconciled. He gave evidence that the high quality architecture and superior finishes were some of the factors that persuaded him that the proposal is acceptable. He stated that a view to the skyline along Burgundy Street is important but some transgression, as occurs in the current proposal, is acceptable.

75. We can strongly support the notion of applying development guidelines to provide some level of certainty and assistance. There is no single solution for any site and many options may be possible. The Development Guidelines provide a framework, but there is certainly no basis to require a development to fully comply with them given their status as a reference document. They can not and should not be applied as a "control" and we note that they do not entirely preclude a development of more than 5 storeys. We also consider it relevant that they pre-date the current Scheme and Melbourne 2030. That is, being some 6 years old, there are sound reasons to re-consider whether the approach advocated in the adopted Development Guidelines remains relevant and consequently results in an acceptable solution. Having said that, it is not our role to review the Guidelines, rather, we must have regard to the Guidelines and greatest weight must be given to policies included in the Scheme.

76. Mr Cicero submitted that the differences between the provisions of the Development Guidelines and the proposal are so great that, if the Tribunal was to conclude that the height of the proposal was acceptable, it would effectively give no weight to this element of the Development Guidelines and not have had regard to the element. We are not persuaded that this correct. A decision can be made to allow a proposal having regard to the Development Guidelines but determining that reasons exist for a departure from them. They are not a control. The decision of the Supreme Court in Glen Eira City Council v Gory [2001] 9 VPR 101 is authority for that proposition in relation to policies that are set out in detail in the Scheme itself.

77. The above has been lengthy and has sought to set out some of the dilemmas that confront us in relation to the status of the Guidelines, the extent to which we should fairly give weight to them, and the evidence of Mr McNabb. In the end, we are persuaded by various factors that we have identified that over-riding weight can not be given to the Guidelines and it would be inappropriate for us to blindly apply them.

78. Having said that, a number of the principles set out in the Development Guidelines are, in our view, reasonable. Among the most crucial in macro-terms are the use of a podium level which provides for skyline views along some vistas and assists to provide some graduation to the low rise form of buildings that fully surround the site. We do not consider that a maximum height can readily be fixed - an appropriate height will be influenced by (among other things) the scale of a tower element above the podium, its architecture and finishes. Landscaping is an important component in assisting to integrate a development on the site with its surrounds.

79. We find that the proposal before us has a number of meritorious components to which we give significant weight:

s the design has considerable architectural quality and in this regard we accept the evidence of Mr Biles, Mr Bialek and Mr McNabb;

s we have already remarked on the landscape concept which responds very well to the landscape values that are recognised in the wider area;

s active and public uses are included at the ground level fronting Bell Street and part of Upper Heidelberg Road.

s the area made available for a forecourt and its use for artworks is acceptable, albeit the area is substantially less than suggested in the Guidelines.

s treating the three façades of the building differently is appropriate and the façade to the Bell/Banksia link does not need to contain active uses at the ground level.

s design details, such as the degree of reflectivity, can be addressed.

80. The key issues relate to visual bulk, in terms of the scale and height of the "podium" forms, impacts on viewlines, and the scale of the upper levels. We readily applaud this quality design, but we are not persuaded that the architectural merit of the proposal, and its accompanying landscape concept, give justification to put aside our concerns in regard to the important massing and envelope issues. These are issues that are more critical in terms of the adjacent properties, that is the more immediate site context, than the longer range views that were of greater concern to some parties.

81. The proposal would create a building that would stand out and alone from other buildings in the immediate vicinity and would be seen from many vantage points in the wider suburban context. It would be most obvious from lower-points, such as Burgundy Street or Bell Street and would be seen on a more even plane when viewed from the east along Upper Heidelberg Road. It would less obvious from the winding form of Upper Heidelberg Road to the south-west. As one moves closer to the site, the building would, obviously, increase in prominence.

82. The building would be visible from many more distant locations and any building over 3 storeys may be viewed from them. In an urban context, we have no difficulty with that notion and do not consider that the provisions of the Banyule Scheme require a development on this site to be wholly nestled among vegetation. There are places where that approach may be warranted, but we are not persuaded that the review site and its strategic position demands such a design outcome. Consequently, we have no difficulty with the visibility of the development from far-reaching vantage points in principle, rather, it is the form of the envelope on which we focus.

83. Based on the policy considerations of the Scheme that we have set out above, we find much of Mr McNabb's evidence to be persuasive in relation to a development on the subject site. We are persuaded that retaining a view to open sky when viewed along Burgundy Street is desirable - warranting a low level treatment along the northern portion of the site. While it was argued by Mr Gobbo that the degree of intrusion is minor, it is, nonetheless an interruption into a view corridor that is desirable to retain.

84. The building adopts a podium form in part along the north elevation above ground level. The same setback is retained through levels 1-6 and partially at levels 7-11. The same occurs on the east elevation where the commercial levels have the same setback and the residential levels are recessed above that.

85. The built form to the north of the subject site is low in scale, being two single storey houses and retail premises directly opposite. As was Mr McNabb's evidence, a lower podium form can assist with integration of a substantial development on the review site when the immediate context includes buildings of such low scale. His April 1997 document referred to three storeys to preserve viewlines and we expect that this would encourage a better fit and a more comfortable pedestrian and human scale. We consider that the six level podium represents an overwhelming visual element to the Bell Street interface and is abrupt in terms of its relationship to the lower scale immediately to the north. The five residential storeys above the six level podium, which partially encroaches into the desired Burgundy/Bell viewline, serves to reinforce this dominating visual appearance. A slender "tower", set back above a recessed and lower podium would, we find, provide a far less overpowering element and a more positive relationship to the lower form of development to the north.

86. We have no issue with a solid form to the Bell/Banksia link, but consider that the bulk along this edge is excessive given that there is effectively no setback through all 11 levels, albeit the length of this façade is reduced at the residential levels as a result of the setback to Upper Heidelberg Road. Moreover, the very strong corner element to the north-west accentuates the bulk. The projecting stair elements that extend into the north and east setback areas also accentuate the breadth and mass.

87. Overall, we are not persuaded that the proposal meets the design objectives of the Overlay, in particular, "to minimise any adverse visual impact from a development on the site on the urban hinterland and the character of the surrounding urban development". We also are not satisfied that some of the principles set out at Clause 19.03 are met, notably in terms of impact on the public realm.

88. In addition, we are concerned that energy efficiency principles are not adequately addressed. For example, the proposal includes the expansive west-south/west façade where few shading devices are provided across any of the 11 levels, except for several residential balconies where the upper level cantilevers over balconies. This façade would catch the afternoon sun, particularly in summer, and there appear to be no opportunities for minimising the use of mechanical heating and cooling units.

89. We are cognisant that Clause 19.03 also seeks to avoid derelict sites, and although the current condition of the site could hardly be praised, we are not persuaded that provides justification to accept the proposal in its current form.

90. To summarise, we have gone to some lengths to explain that "the presently unencumbered ridgeline" which is highly valued by some Respondent Objectors, realistically will not remain given the position of this site, its zoning and policies that give scope for a significant building.

91. We are persuaded that the visibility of a building with a lower podium element and a more slender tower than before us, may be appropriate. We find that a slender tower element would be desirable and we expect that the achievable volume will be strongly influenced by car parking requirements.

92. We do not go to other details, except to remark that we find the provision of open space for the units to be acceptable without the need for 20 square metres per unit.

93. Mr Cicero submitted that the proposal should be self-sufficient in parking and its failure to provide 366 spaces warrants refusal. However, over the course of the Hearing, some of those concerns abated and, in the end, the shortfall identified by Mr Cicero was reduced to several spaces for staff of the café and retail uses and the provision of 5 on-site visitor spaces for the residential component.

94. Local residents were clearly concerned about parking congestion in the locality and an overflow of parking from the proposed development into local streets. The proximity of the site to sufficient and convenient public transport was referred to in support of submissions by Respondent Objectors that a reduction in parking should not be allowed. The accuracy of the survey information that formed the basis of Mr Butler's evidence was questioned.

95. We understand from the information tendered by Mr Cicero and further information provided through the evidence of Mr Butler that a large on-site car park is proposed within the Austin redevelopment.

96. We acknowledge that the subject site is accessible by several bus services with a bus stop proximate. We also note that the Heidelberg Railway Station is around 700 metres walking distance with the likelihood of its reliance being influenced by a readiness or otherwise to tackle the hill leading from the station to the subject site or a more circuitous route through the Austin property. However, given the topography and parking pressures in the area, it is, we think, fair to say that this is predominantly a car-based site in contrast to a site that abuts convenient public transport of several and inter-connecting modes.

97. We accept Mr Butler's evidence that there is on-street parking available in the area, although the presence of time restrictions in local streets is possibly evidence of problems of parking (eg. staff parking from hospitals and businesses). [We have a concern that Mr Butler relies on data from 2000 and that no further parking surveys have been undertaken. We would prefer more up to date information on which to base our conclusions]. Our observations confirmed Mr Butler's remarks that the review site is heavily used, we understand by staff who can park for extended periods.

98. Mr Butler's evidence was that the proposal would satisfy resident parking needs on-site applying the rates at Clause 55, rather than 2 spaces per dwelling as at Clause 52.06. Residential visitors would reasonably rely on on-street parking, in Mr Butler's opinion. Mr Butler also considered that office needs could be met on-site, with a rate of 3 spaces per 100 square metres of floor area - a figure not disputed by Council officers. Mr Butler added that the layout of the car park could allow for 10 office visitor spaces to be available at the entry to the basements.

99. Mr Butler proposed the preparation of a Parking Management Plan to address the allocation of visitor car spaces on site, such as resident spaces out of business hours on the ground floor and office visitor parking at the entrance to level B1 by the addition of a boom gate or re-positioning of the roller door. Mr Butler's evidence was that a space for each of the café and retail premises could be provided on-site and that on-street spaces would cater for customers (some of whom may walk from nearby businesses and the hospitals).

100. We are persuaded that it is necessary to provide for staff parking on the subject site and that the rate adopted by Mr Butler for traditional office-based uses is acceptable. We have commented above on the use of the property for, say, medical practitioners with a higher turnover of visitors than is usually the case for offices. We find no need to go to that further. We can accept the application of Clause 55 rates for residents, although we would prefer to see some ability for residential visitors to park on-site and the concept of sharing spaces with offices in this regard is desirable. The sensible idea of a parking management plan could resolve some of these matters. We would prefer for staff needs for a café and retail use to be properly met, albeit accepting that not all staff may drive (eg. junior staff).

101. We expect that there would be some increase in parking in local streets but we are not persuaded that is a reason to reject the proposal if the majority of the needs of the development can be met on-site.

102. Loading is proposed to be undertaken on-street in Bell Street. This was considered a usual and acceptable arrangement by Mr Butler for the café and retail uses, given their relatively modest size. He also considered the arrangements suitable for serviced offices and did not consider dedicated on-site loading facilities to be necessary. We accept that evidence. We have little information about garbage collection arrangements but expect that matter can be addressed.

103. Respondent Objectors raised various concerns about the difficulty of access to the subject site and their concerns about safety with increased traffic generated from the proposed development. We do not describe all of the matters to which they referred, but summarise that issues included safety for vehicles merging into a high speed and already complicated traffic environment with poor sightlines, additional hazards with reflective glare, increased traffic generally over time with additional developments in the wider area (eg. Mont Park redevelopment) and locally (eg. dual occupancies), and increased through traffic on local residential streets (notably Thames and Dresden Streets).

104. Mr Butler gave evidence in relation to these matters. His evidence was that the proposal would result in an increase in traffic on adjacent roads but that the location of access points had been determined in association with VicRoads and are safe and workable. He also accepted that there may be an increase in through traffic on Thames and Dresden Streets, but in his opinion that would only be a small percentage. The increase would be most likely to occur in the mornings. We note that Mr Butler's evidence, and the proposed access arrangements, are based on the assumption that the median break near to the existing access point on Upper Heidelberg Road would be closed, as is understood to be part of the Austin Hospital redevelopment. We also note that his traffic data dates from 2001.

105. VicRoads has given its approval to the proposal, subject to conditions.

106. There is no doubt that this intersection and the road network in the immediate vicinity is complicated. Frequent users come to master it and we can accept resident submissions that those visiting for the first time may well find it difficult to navigate.

107. We do not describe all of the permutations and combinations for vehicle access, suffice to say that we are persuaded that the arrangements negotiated with VicRoads are acceptable. Some of the concerns raised by residents are existing traffic issues and we do not consider that the volume of traffic generated by this proposal would worsen existing conditions in a manner that warrants refusal. We understand that the car park operating on the review site accommodates more than 160 or so cars and we are not persuaded on the submissions and evidence before us that providing for an extra (approximately) 110 cars would jeopardise vehicle or pedestrian safety.

108. We expect that there may be some increase in the use of local streets by through traffic, as occurs at present. Again, we are not persuaded that this is a factor that warrants rejection of the proposal.

109. The main issues raised were in relation to direct amenity impacts were overshadowing (particularly in winter), the potential for overlooking, and the visual impact of the proposal.

110. It is common ground that the proposal would result in some winter shadows, could cause perceptions of overlooking given the glazed elements, and would be visible to residents closest to the land (eg. north of Bell Street).

111. However, the site is also well separated from existing residence in terms of the standard of 9 metres adopted in Clause 55, given the road network that surrounds the property. While we can understand that existing residents may be able to be seen, or they may see people in the residences or offices, we would not require changes or reject the proposal for those reasons.

112. The usual test in terms of overshadowing is at the equinox. The proposal is acceptable in terms of this standard. The changes we have referred to above in modifying the podium form and higher built elements may reduce winter shadowing.

113. We have some concern about visual bulk as presented to existing residents, such as the interface of the Bell Street façade with development to the north and for residents to the south-west. The development would appear as a powerful presence. The changes we have discussed would produce a more graduated transition.

114. Dr Clark made submissions and presented evidence in relation to the impacts of light emissions associated with the proposal. His concerns included increased sky-glow and its impact on astronomical studies, and recent investigations conducted by him as to a link between increased light emissions and increased crime, environmental and health impacts. The potential for migratory birds to be attracted to and disoriented by light was a further matter raised.

115. Dr Clark considered that inadequate attention had been given to light emissions, particularly given the extent of glazing proposed in this proposal.

116. The information presented by Dr Clark in relation to light emissions and suggested links with crime challenges what we understand to be conventional views. For example, it is frequently held that increased lighting assists to reduce crime, not the reverse as is propositioned by Dr Clark. We can imagine that his investigations will be the subject of considerable debate in scientific, criminology, planning, design and other professional circles in due course if his research findings are published. However, we are not persuaded to reject the proposal on the grounds upon which Dr Clark relies or to require that any development on the subject site emit no more light than occurs at present as was sought by Dr Clark.

117. The subject land is a difficult site in so far as most forms of development that may be contemplated would result in a visible built element high on a ridgeline, would increase traffic at a complex intersection and have the potential to increase off-site parking demands in an area that is highly pressured for car parking.

Merchant Pacific Pty Ltd v Banyule CC and Ors [2003] VCAT 517

At a glance

Court

Decision date

Before

Source

Judgment (203 paragraphs)

Merchant Pacific Pty Ltd v Banyule CC and Ors [2003] VCAT 517 (29 April 2003)

Parties

Legislation Cited (1)