SUBJECT LAND: 9-13 O'Connell Street, North Melbourne

MEDIUM NEUTRAL CITATIONS: [2003] VCAT 1468

The decision of the Responsible Authority is set aside. A permit is granted and is to issue for a 6 level building and reduction of parking spaces at 9-13 O'Connell Street, North Melbourne in accordance with the endorsed plans and subject to the following conditions:

1. Prior to the commencement of the use and development hereby permitted the applicant must submit to the Responsible Authority three copies of plans drawn to scale generally in accordance with Drawings 02.017B dated August 2003 and September 2003 Revision C, but amended to show:

a) The front walls of the two upper floors set back a minimum of 3 metres from O'Connell Street.

c) Reduction of the bulk in O'Connell Street by increasing the setback for the balconies, the fourth floor and fifth floor above ground (labelled Level Four) by 2 metres.

d) Provision for an alternative proposal for the balustrades of the fourth and fifth floors to reduce their visual bulk.

These amended plans must be to the satisfaction of the Responsible Authority and when approved shall be the endorsed plans of this permit.

2. The development and use as shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.

3. A schedule of all external materials and finishes must be submitted to the satisfaction of the Responsible Authority prior to the commencement of any buildings and works on the land. The schedule must show the materials, colours and finishes of all external walls, roof, fascias, window frames, glazing types and doors.

4. Prior to the commencement of development, it must be demonstrated, to the satisfaction of the Responsible Authority that the development will achieve a minimum rating of 4 stars, as defined by the Sustainable Energy Authority.

5. The walls on the boundary of adjoining properties shall be cleaned and finished in a manner to the satisfaction of the Responsible Authority.

6. No architectural features other than those shown on the endorsed plans shall be permitted above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority.

7. The development hereby approved shall be designed and treated with noise attenuation measures so as to ensure that the maximum level of noise from external sources does not exceed 45db(A) within habitable rooms with windows closed in accordance with relevant Australian Standards for acoustic control, to the satisfaction of the Responsible Authority.

8. Mailboxes and newspaper receptacles must be provided prior to the occupation of the flats/units, including an additional mailbox for the body corporate if and when development is subdivided, to the satisfaction of the Responsible Authority.

9. All service meters must be located in front of the flats/units with easy pedestrian access to them.

10. No more than one television aerial is to be erected per building without the consent of the Responsible Authority.

11. All service equipment (including air-conditioning units), apart from roof downpipes, shall be concealed from the view of a person. at ground level within common areas, public thoroughfares and adjoining properties.

12. No satellite dishes shall be erected without the prior permission of the Responsible Authority.

13. The minimum clearance to the underside of the proposed projection over O'Connell Street from the existing footpath surfaces shall be 3.0 metres. The projections shall be drained to legal points of discharge in accordance with plans and specifications first approved by the Responsible Authority - Council's Group Manager Engineering Services.

14. The design of all parking spaces must conform to the requirements of Section 52.04-6 of the Melbourne Planning Scheme and Australian Standard AS2890.1 - 1993.

15. Headroom clearances must be in accordance with the minimum requirements set down in section 5.3 of AS2890.1 - 1993 ("The Standard").

16. The design of the carpark must be safe, convenient and non-discriminatory for people with disabilities to the satisfaction of the Responsible Authority

17. The area set aside for the parking of vehicles and access-ways shall be constructed, surfaced, sealed, drained, delineated and maintained at all times to the satisfaction of the Responsible Authority and such works must be completed prior to the commencement of the use allowed by this permit.

18. The areas set aside for car parking in the building must be restricted to the parking of vehicles by owners and occupiers of, or visitors to, the building.

19. The owner of the subject land shall remove the existing crossover on O'Connell Street and reinstate the footpath kerb and channel in accordance with plans and specifications first approved by the Responsible Authority - Council's Group Manager - Engineering Services.

20. All mechanical exhaust vents from the car park hereby approved must be sound attenuated to prevent noise nuisance to the occupants of the surrounding properties, to the satisfaction of the Responsible Authority.

21. The Owner of the subject land shall construct a drainage system within the development and make provision to connect this system to Council's stormwater drainage system in accordance with plans and specifications first approved by the Responsible Authority; Council's Group Manager - Engineering Services.

22. Prior to the occupation of the dwellings and the convenience restaurant hereby approved, sufficient waste storage and collection arrangement must be fully specified and must be to the satisfaction of the Responsible Authority - Council's Group Manager - Engineering Services.

23. No garbage bin or waste materials generated by the permitted use shall be deposited or stored outside the site and bins must be returned to the garbage storage area as soon as practicable after garbage collection.

24. The convenience restaurant hereby approved may only be open between 7am - 11pm Monday to Sunday unless with the further written consent of the Responsible Authority.

25. No more than 24 table seats and 8 bar seats are to be made available to the public within the convenience restaurant at any one time.

26. The premises must be provided with a filter system to eliminate cooking odours, fumes and smoke to the satisfaction of the Responsible Authority.

27. The convenience restaurant hereby permitted must not cause any nuisance to neighbouring residential properties by reason of noise, transport of materials, goods or commodities to or from the land, fumes or Vibration from within the building.

28. No sound amplifying equipment shall be installed so as to be audible outside the premises.

29. Noise emitted from the premises must not exceed the permissible noise levels determined in accordance with the State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2.

30. The time for the commencement of the development and use hereby authorised is, pursuant to Section 68(3) of the Planning and Environment Act 1987, specified as 2 years from the date of issue of this permit and the time for completion is specified as 2 years from the date of such commencement.

The time within which the development is to be commenced or completed may on application made before or within 3 months after the expiry date of this permit be extended by the Responsible Authority.

For the Responsible Authority: Ms Meredith Gould, Heritage Architect

For the Applicant: Mr Bryce Raworth, Heritage Adviser

Mr David Barnes of Hansen Partnership, Town Planner

1. This is an application to review a refusal of the City of Melbourne to grant a permit for a 6 level building with one full basement and five storeys above to accommodate 40 apartments, food and drink premises and 36 car parking spaces. It is also to reduce the number of required parking spaces.

2. At the hearing Mr Connor requested that the application be amended by the substitution of plans, Nos. 1.01, 1.02, 2.01 to 2.07, 3.01 to 3.05 and 4.01. The plans had been distributed in accordance with the Tribunal directions. No objections were received from the other parties and the substitution was approved.

3. Mr Connor also advised us that Ms Gould in her evidence had raised issues of floor to ceiling heights at ground level in the car park as well as ramp grades. We found further discrepancies in floor to ceiling heights of the ramp adjacent to the stairwell. These required further amendments by Mr Metaxas.

4. These are well described in Ms Klein's submission where she states:

"A locality plan of the site and surrounds is located at Appendix 1 while photographs of the site and surrounding area are located at Appendix 2.

The application site is north west of the intersection of Elizabeth and Victoria Streets, North Melbourne and is in close proximity to the Queen Victoria Market.

The site comprises an irregular shaped parcel of land with a frontage to O'Connell Street measuring approximately 20 metres, a depth of 29.27 metres on its northern boundary and 34.596 metres on its southern boundary and a width at the rear of 20.94 metres. The total area of the site is approximately 646 sq.m.

The site slopes from West to East with a fall of approximately 1 metre towards O'Connell Street and North to South by around 300mm along O'Connell Street. The site is currently undeveloped and used as a commercial public car park with parking for 23 cars.

O'Connell Street intersects at an oblique angle with Victoria Street. The southwest corner of the site effectively abuts the rear of the properties that front Victoria Street.

O'Connell Street is a oneway street, with entry via Victoria Street and egress via Cobden Street. Parallel parking exists on the west side of the street, with angle parking on the east side.

Access is currently available to the site via a crossover on O'Connell Street and a Council laneway that accesses the rear of the site and connects to Cobden Street. The existing laneway also provides vehicle access to neighbouring properties with frontages to Victoria Street.

The Queen Victoria Market is the dominant land use activity in the area. Other land uses however include mixed use developments, hotels, car traders, student accommodation, small industries and increasingly residential uses.

Land immediately north of the application site is developed by a 2 storey red brick Victorian era warehouse graded 'C' in the Heritage Places Inventory, while the building located further north is a 4 storey bluestone and brick Victorian warehouse `A' in the Heritage Places Inventory. An application for a planning permit for "partial demolition and alterations and additions to the existing building for use as a residential building (student accommodation) with a reduction in the standard car parking requirements was refused by the Council's Planning, Development and Services Committee on 16 July 2003. An appeal (reference P1774/2003) has been lodged by the permit applicants against Council's refusal for this site and a hearing date has been set for 28 and 29 October 2003. A copy of Council's refusal and amended plans recently received are attached at Appendix 3.

Land immediately south of the application (at No. 1-7 O'Connell Street) site is developed by a 3 storey interwar building. This building has approval for "alterations and an additional level to the existing building to be used for 27 student accommodation units and associated uses and to reduce the car parking requirements" (Planning Permit No. TP01/754 issued on 27 November 20010."

5. The proposal is for a six level building with two levels of car parking (in the basement and on part of the ground floor) providing for 36 permanent spaces. The car park is accessed via a 2.875 metre wide lane off Cobden Street. The ground floor is to contain a 72 square metre cafe and an entry foyer as well as the parking. The cafe is to have 24 table seating and 8 bar seating. It is proposed to operate this cafe 7am to 5pm Mondays to Thursdays, 7am to 2am Fridays and Saturdays and 7am to 10pm Sundays. Levels 1 to 4 are to contain 10 dwellings each. There are to be 28 one bedroom and 12 two bedroom apartments. Each apartment will be provided with a small balcony. The bedrooms will rely on borrowed light. The building will have total height of 14 metres at the centre of the site frontage. There will be provision for bicycle storage in the foyer.

6. The modified plans introduced light courts to the central units, light wells and an elevational treatment to the east facade.

7. The latest provision includes small storage areas in the basement and ground floor, setting back of Level 4 from the O'Connell Street frontage by 1.2 metres, setback of Unit 4.01 from the northern boundary by 980mm and reduction in the area of the terraces on Level 4 with widths reduced from 2 metres to 0.4 metres.

8. This was lodged on 24 January 2003 and following the request and provision of further information the application was advertised on 27 March 2003. An objection was received from the North and West Melbourne Association with a very detailed list of objections summarised in Ms Klein's submission. The application was referred to the Council's Heritage Adviser who advised that the two buildings immediately to the north are the most intact of their kind in North Melbourne and they are graded C and A respectively. The shops along Victoria Street are two levels in height providing a low scale historic context for the market opposite. The proposal is taller than the common height for contributory buildings in the street and therefore dominates through its bulk and scale. Its parapet should be no higher than the parapet of the C graded building to the north and it should be set back the width of one unit for a depth of 9.5 metres at the third and fourth levels. It will be intrusive to Victoria Street when viewed from the Victoria Market.

9. The Urban Designers indicated that they were comfortable with a building height of 14 metres. They supported access from the rear to enable an active frontage to be provided and suggested that the northern elevation be simply articulated.

10. The Engineering Services Department commented on the number of car spaces provided and access via the lane, particularly for delivery and refuse collection vehicles.

11. Following that, the Responsible Authority' officer refused to grant a permit under delegation on these grounds:

1. The proposed development as a result of its scale, building bulk and height, will adversely affect the significance of a heritage place, being the North and West Melbourne Precinct.

2. The proposed development, as a result of its scale, building bulk and height, will dominate the O'Connell Street streetscape and the contributory elements of its neighbouring graded buildings.

3. The proposed development is contrary to the Built Form Outcomes of Design and Development Overlay Schedule 32 (Clause 43.02 of the Melbourne Planning Scheme).

4. The means of vehicular access to and from the site is not safe or manageable and is contrary to Clause 52.06-3 of the Melbourne Planning Scheme.

5. The inadequate provision of on-site car parking, together with the potential loss of on-street parking due to the proposed development, would place further pressure on the limited supply of on-street car parking in the area.

6. The proposal represents an overdevelopment of the site.

12. An application for review was made on the following grounds:

1. The proposed development as a result of its scale, building bulk and height, will not adversely affect the significance of a heritage place, being the North and West Melbourne Precinct.

2. The proposed development, as a result of its scale, building bulk and height, will not dominate the O'Connell Street streetscape and the contributory elements of its neighbouring graded buildings.

3. The proposed development is not contrary to the Built Form Outcomes of Design and Development Overlay Schedule 32 (Clause 43.02 of the Melbourne Planning Scheme).

4. The means of vehicular access to and from the site is safe and manageable and is not contrary to Claus 52.06-3 of the Melbourne Planning Scheme.

5. The provision of on-site car parking is adequate and will not affect potential loss of on-street parking due to the proposed development or place further pressure on the limited supply of on-street car parking in the area.

6. The proposal does not represent an overdevelopment of the site.

13. The land site is contained within a Mixed Use Zone under which a permit is required for the construction of two or more dwellings in accordance with Clause 32.04-5 of the Scheme. Clause 55 of the Scheme does not apply as the proposal is more than four storeys in height. The site is covered by a Heritage Overlay 3, North and West Melbourne Precinct, under which a permit is required to construct a building, construct or carry out works, pursuant to Clause 43.01-1 of the Scheme. The land is also covered by a Design and Development Overlay - Schedule 32, North Melbourne Peripheral, and a permit is required under Clause 43.02-2 to construct a building or construct or carry out works. A permit is required under Clause 52.06-1 to reduce the number of car parking spaces required in the table at Clause 52.06-5.

14. Schedule 32 of the Design and Development Overlay sets a mandatory maximum height limit of 14 metres. Schedule 32 also requires respect of the existing built form and a transition of scale to lower building forms with higher typical built form buildings. It also specifically mentions respect for the Victoria Market which has a heritage place and pedestrian focus.

15. The Responsible Authority also has a number of incorporated documents such as Heritage Places Inventory 2000. This grades buildings from A to D in streetscape from Level 1 to Level 3. O'Connell Street is a Level 2 streetscape under this document. The building adjacent to the north is C graded and north of that is an A graded, four storey building.

16. The proposal is subject to the policies and provisions of the State and Local Planning Policy Frameworks in the Planning Scheme, the MSS and Local Policies. The MSS in particular requires the conservation and enhancement of Melbourne's architectural heritage and historic character, and enlivening of it by adaptive re-use and innovative promotion.

17. Part 2 of the CityPlan of the MSS locates this site in the North and West Melbourne Mixed Use Area Precinct. There is potential for growth and residential uses through infill development here and "Development is encouraged to complement the historical, environmental and social fabric of the area ...". The CityPlan encouraged medium density development. It requires that development provide attractive streetscapes and that higher building forms may be appropriate adjacent to the CBD edge.

18. Clause 22.05 of the LPPF refers to Heritage Places Outside the Capital City Zone. This is "to encourage development which is in harmony with the existing character and appearance of designated heritage places and areas". A new development must also make a positive contribution to built form and be respectful of architectural and historical character. Regard must be given to listed buildings.

19. There are Performance Standards for Assessing Planning Applications in these policies and these refer to Form, Facade Patterns and Colours, Materials, Details, Concealment of Higher Rear Parts (Including Additions), Facade Height and Setback (New Buildings) and Building Height. Clause 22.08 relates to Victoria Market. Clause 22.13 - Land Use and Activities in the Mixed Use Zone and Clause 22.17 - Urban Design Outside the Capital City Zone both apply.

20. There is a new Amendment C60 to the Melbourne Planning Scheme. This proposes a new Municipal Strategic Statement. It was adopted in October 2002 and has been before a Panel and as such is a seriously entertained planning proposal. It proposes a number of changes and reinforces a number of existing policy frameworks.

21. Melbourne 2030 is applicable to this application.

22. All parties tabled written submissions to which they spoke. These together with the statements of evidence from the witnesses, plans, photographs and other information tabled are all retained on the Tribunal file.

23. We received very detailed submissions and consequently cannot refer to all the information put to us. We intend therefore to concentrate on the issues that we believe are the critical ones in this matter. We thank the witnesses and submitters for their advice and documentation which has assisted us in coming to this decision.

24. During the course of the hearing we inspected the site and its surrounds which assisted us to concentrate on the issues before us. At the end of the hearing we advised the parties that we were of a mind to grant a permit subject to a number of specific conditions requiring some redesign of upper floors of the building. In reaching that conclusion we gave consideration to all those matters put before us and in order to assist the parties we will give our reasons in point form.

25. Included in the submissions were a number of previous Tribunal Decisions including one for this very site included in a much larger area. The rest were provided by Ms Williams in her submission.

26. At the hearing we changed the order of appearances so that we could hear from both Heritage Advisers together to enable us to make more accurate comparison of their evidence.

27. We also noted the following which we believed to be relevant to our consideration:

28. This is a vacant allotment that is ripe for development. A permit has been issued for 1 to 7 O'Connell Street for a fourth storey above the existing three storey building that will be only slightly lower than the proposal. No. 15, the C graded building, presently has a proposal for accommodation that will raise its level to approximately the same level as the proposal but this would be set back 9.5 metres from the O'Connell Street building line.

29. To the north of the A graded building there has been a major two storey extension to the Mercatore building that runs through from O'Connell to Cobden Street. Similarly there has been a new building four storeys in height built to 15 metres high called the Market Square building that also runs through between the two streets. To the north again is a series of saw tooth warehouse buildings running between the two streets that also has had significant upper floor extensions added.

30. To the west is a large area of undeveloped land presently used as a commercial car park, to the north of which are buildings that are possibly ripe for redevelopment. In other words, much of this area is in a state of flux.

31. We therefore have difficulty in accepting that there will not be some changes to view lines from the Victoria Market looking over the two storey buildings on Victoria Street. However, even so, we do not believe that a 14 metre height limit will provide an unacceptable visual bulk within those view lines. If it is not the building on this site, it will be one of either to the west or further to the north that will create an equal visual bulk.

32. In relation to heritage we understand this site is contained in a Level 2 streetscape. Ms Gould maintained the two storey parapet height is the trigger height in the streetscape whereas Mr Raworth maintained it is the height of approximately 14 metres that is the trigger height. Mr Raworth based his opinions on the Market Square building to the north.

33. Mr Raworth disagreed with Ms Gould's assessment and preference to keep the southern wall of the A graded building available for view lines from south of the two storey building. We agree with Mr Raworth that views of that wall will still be obtained when someone is moving up O'Connell Street.

34. We agree with Mr Raworth that the two most northerly units of the upper floors of this proposal should not be set back to 9.5 metres, but agree with both Heritage Architects that the parapet height of approximately the same height as the two storey building should be the prime facade line of the new building.

35. We depart from views of both Heritage Advisers in that we believe that the two upper floors should be set back further from this parapet line and balconies at these upper levels reduced in bulk and size accordingly. Therefore we maintain that a minimum setback of 3 metres for those two upper floors is appropriate.

36. In relation to floor to ceiling heights we accepted the revised drawings of Mr Metaxas that provided sufficient head heights for both the ramp and the entry conditions for the car park. We also accept Mr O'Connor's submission that the building regulations allow for a 2400mm floor to ceiling height for a cafe such as that proposed. We also accept his submission in relation to floor to ceiling heights of the floors above.

37. In relation to access from the rear lane, while we initially had concerns about this, we were persuaded by Mr Higgs' evidence that access for cars and small vehicles will be quite satisfactory and that with a turning area provided at the end of this lane and entry to the subject car park, movement of smaller vehicles such as the 85 percentile passenger vehicle should be adequate. Mr Higgs agreed that fire trucks and waste collection vehicles would find difficulty in manoeuvring along the lane and proposed that garbage would be taken to be collected at Cobden Street. Mr Higgs also proposed that any development of the lot fronting Cobden Street now being used as a car park would provide the opportunity for the laneway to be widened. He also indicated the number of rear entries for the commercial premises along Victoria Street to this rear lane. We accept Mr Higgs' evidence.

38. We accepted it particularly as an option to utilise the existing access into O'Connell Street was put to bed by the Responsible Authority and the Applicant's desire to maintain an active frontage to O'Connell Street.

39. In relation to parking numbers we again accept Mr Higgs' evidence about both the cafe patrons and the occupiers of the proposed residences. We understand there will be a shortfall but we were persuaded by Mr Higgs that there is adequate parking provided after hours, particularly after the market closes, and that the Responsible Authority does not seem to have any prejudice to issuing parking permits for occupiers of the Mercatore and the Market Square apartments. Therefore we are persuaded that the required parking numbers can be waived to 36 in total.

40. In relation to internal amenity, we note Ms Williams' concerns about access to direct light for many of the units and also the perceived inadequacy of some of the light wells and voids. We noted the evidence of Mr Barnes in relation to this and understand that, while the upper floors may achieve good daylight and some sunlight penetration through these voids, the lower floors will not receive much sunlight and some reduced daylight. However that does not mean that small units such as these do not have a place in the provision of accommodation in the inner city areas. We note the comments of other Divisions of the Tribunal that were provided by Ms Williams. We also note Mr Hewet's Decision as provided by Mr Connor. We understand that whatever we decide in relation to this may need to be adjusted because of the requirements of the Building Regulations and the Building Code of Australia. In other words, there will have to be provision for sufficient light to enable a building approval to be obtained.

41. In relation to noise emanating via these voids and light courts we note that double glazing and smart glass are very efficient in the reduction of noise and would expect that provision being made for such, again at the time of building approval.

42. Other matters were raised by Ms Williams that could generally be referred to as management and building approval issues such as rubbish facilities and stair winders.

43. In relation to the provision of adequate open space we form the view that while these do have small balconies, they are small apartments and adequate for the purpose for which they have been built.

44. Having considered the submissions, evidence of the witnesses and supporting information, we have come to the conclusion that a permit should be issued subject to conditions. The conditions were discussed at the conclusion of the hearing.