Jeremy McLeod, Lisa Edgar, Mic Looby, Rachel Carbonell, Alastair MacInnes and Jennifer Barber

11 West Street, 1, 3, 5, 7, 8, 9, 10 and 12 Duckett Street, 24-16 Hope Street, Brunswick

Michael v Moreland CC [2015] VCAT 1110

1. The decision of the Responsible Authority is varied. The Tribunal directs that Permit No. MPS/2014/7 must contain the conditions set out in the Permit No. MPS/2014/7 issued by the Responsible Authority on 19 March 2015 but with the following modifications:
   • (a) Condition 1a) is deleted and replaced with the following new condition:

1a) The top two levels of the 8-storey building on site A to be set back at least 10 metres from Duckett Street (excluding balconies). Articulation is to be provided to the façade of the set back walls.

(b) The description of what the permit allows (The Permit Allows) is deleted and replaced with the following new description:

Use and development of four buildings comprising two five storey buildings and two eight storey buildings with dwellings with associated shop, office and food and drink premises and a reduction in the standard rate of car parking and loading bay requirements and works in Duckett Street, in accordance with the endorsed plans.

1. The Responsible Authority is directed to issue a modified permit in accordance with this order.

Mr Giovanni Gattini, Town Planner of G2 Urban Planning. He called expert evidence from Mr Mark Sheppard, Urban Designer of David Lock Associates (Australia) Pty Ltd.

Mr Andrew Clarke, Town Planner of Clarke Planning Pty Ltd.

For Jeremy McLeod, Lisa Edgar, Alastair MacInnes and Jennifer Barber

Mr Jeremy McLeod, Ms Lisa Edgar and Mr Alastair MacInnes (all for part of hearing).

Construction of 4 separate buildings of up to 8 storeys to be used for shop, office, food and drink premises and dwellings.

Application under Section 80 of the Planning and Environment Act 1987 to review the conditions contained in the permit.

Cl. 34.01-1 (use land for a dwelling with frontage of more than 2 metres in C1Z).

Cl.34.01-4 (construct a building or construct or carry out works in C1Z).

Cl. 43.02-1 (construct a building or construct or carry out works in DDO13).

Cl. 44.05-1 (construct a building or construct or carry out works in SBO).

Clauses 9, 10, 11, 15, 16, 21.02, 21.03, 22.07 and 65.

The review site comprises two parcels of land north and south of Duckett Street and east of the Upfield railway line. The total area is 4,860m2 comprising approximately 3,220m2 south of Duckett Street and approximately 1,640m2 north of Duckett Street. The land is occupied by a number of industrial/warehouse buildings.

I undertook an accompanied inspection of the review site, No 23 Breese Street and No 109 Florence Street on the second hearing day, Tuesday 21 July 2015. I also inspected the locality on my own.

Naqebullah v Kingston CC (Correction) [2014] VCAT 1537.

Calodoukas v Moreland CC [2012] VCAT 180.

FOUR CONDITIONS BEING APPEALED - COMPULSORY CONFERENCE HAS RESOLVED THREE

1. The permit applicant has sought to review four conditions on a permit issued by Council in March 2015. A number of residents lodged statements of grounds and are parties to the application for review.
2. Following a compulsory conference conducted by the Tribunal in June 2015, three of the conditions have been resolved with the consent of all parties.
3. The remaining condition in dispute is condition 1a) which requires the deletion of levels 7 and 8 from the two tallest buildings so that they do not exceed 6 levels. I note that Council officers recommended approval without the removal of two levels and that the condition was included by Councillors when making the decision to grant the permit.
4. As I explained at the hearing, the sole focus of my attention is therefore confined to whether two levels should be removed from the two tallest buildings. Although residents made reference in their submissions to a number of other matters including design and materials, consultation process, achieving an active streetscape, carparking and drainage, my consideration is only about the height of the two tallest buildings.
5. To the extent that additional traffic is generated by the dwellings on the top two floors, I understand the concern raised by residents and it is a common issue raised at Tribunal hearings. I have commented about traffic congestion on many occasions including in a recent decision in Highett[2]:

[68] Traffic congestion is always a more problematic issue. Whilst I fully understand concerns raised about traffic and parking congestion, it is an unfortunate fact that any increase in housing and motorists living in an area will lead to more traffic. It is a cumulative effect but it is an effect that needs to be considered on a much broader regional or metropolitan scale than on an ad hoc or application-by-application basis.

[69] Ever increasing traffic volumes have been a feature of our society since motor vehicles first used our roads last century. Government policies aim to reduce our dependence on motor vehicles by, amongst other things, encouraging new development into areas already well served by public transport and by trying to better match housing and work places (Plan Melbourne's concept of the 20-minute neighbourhood). The proximity to the train station, bus routes and the commercial areas of the Highett Activity Centre within a few minutes walk and larger commercial centres within an easy train ride will encourage residents to leave their cars at home, thereby reducing traffic movements even further than would be expected if the site was more remote from such facilities.

[70] Rejecting new development on sites such as the review site because of the potential for increased traffic congestion does not mean that the traffic situation will improve or stop getting worse. Allowing new development on sites such as this, located so close to public transport and in areas where people can readily access jobs, education institutions and other facilities, may eventually encourage a slowdown in the growth of traffic volumes. It may be an optimistic and long term outcome, but it is one that planning policy seeks to achieve.

1. These comments are equally relevant to the circumstances at Brunswick. However I am coming to the conclusion that our community, either as a whole or individually, has not come to grips with how living in a city of 8 or more million people will impact on how they travel. It is my expectation that it will become the norm for developments in locations such as the Sydney Road/Upfield Corridor to be provided with little or no on-site car parking and that people will, of necessity and convenience, choose to live without access to private motor vehicles. The Commons development at 109 Florence Street is an example of that future world, where construction of additional dwellings does not generate additional traffic movements or cause additional traffic congestion.

1. It is not exaggerating to say that this part of Brunswick is undergoing enormous change. The previous character formed by the mixture of mostly small scale industrial/warehouse businesses physically intermingled with the modestly sized, single storey Victorian and Edwardian era dwellings is being replaced by a character of 5 to 9 storey mixed use buildings of considerable bulk and scale comprising commercial activities at ground level with dwellings on the levels above. Although there are a limited number of dwellings still remaining in this area, none of them are zoned residential and instead the whole area is zoned Commercial 1.
2. As discussed at the hearing, the area bounded by Sydney Road to the east, Hope Street to the south, the Upfield railway line to the west and Albion Street to the north already contains not less than 15 developments built, approved or under consideration comprising buildings of between 5 and 9 storeys. Of these, all but 4 are buildings of six or more storeys.
3. However, the issue of height is not just about what has been built and approved, but it is also about the strategic directions set out in the planning scheme. The linear strip along both sides of Sydney Road and west to the railway corridor is identified in both State and local policies as an area where major intensification of development will take place. Plan Melbourne identifies the area as part of the largest urban renewal corridor in the northern suburbs and the area is also within the Brunswick Activity Centre depicted on Map 1B in Clause 21.02. Part of Council's strategic planning assessment has included the Brunswick Structure Plan and the Sydney Road/Upfield Corridor Strategic Framework Plan (Moreland City Council 2014).
4. That assessment has resulted, as relevant to the review site, in the imposition of a Design and Development Overlay (DDO13) over the area bounded by Florence Street to the north, Breese Street to the east, the Upfield Path/railway line to the west and Hope Street to the south. Design objectives in DDO13 aim, amongst other matters, to encourage development to provide high density forms of residential accommodation above ground floor commercial spaces, promote design excellence and create pedestrian friendly environments.
5. The DDO13 contains design objectives and decision guidelines which must be considered, as appropriate. Except for the single issue of height, Council has not identified any other aspects of the development that offend or are unacceptable when assessed against these objectives and decision guidelines. Nor did Council find any reason to criticise the proposal against the many buildings and works items such as setbacks, design and articulation, pedestrian access, movement, amenity, car parking, vehicle access, noise attenuation and environmentally sustainable design.
6. As relevant to my consideration of condition 1(a), the guidelines or policy for buildings and works includes under the heading 'Built Form -Height' a statement that 'any new development should be limited to a height of 5 storeys (18 metres)'.
7. Parties also made reference to a proposed DDO18, what it contains and what weight it should be given now that is has been adopted by the Council.
8. DDO18 covers the Sydney Road-Upfield Corridor and extends from Park Street in the south to Moreland Road in the north. It replaces DDO13 with new provisions and seeks to implement the Sydney Road/Upfield Corridor Strategic Framework Plan (Moreland City Council 2014). It has been exhibited as Amendment C134, reviewed by an independent Panel, adopted by Council and submitted to the Minister for Planning for his approval.
9. The review site is included in an area identified for development with a height of up to 17 metres. The Panel recommended that it be a discretionary or preferred height. I understand that despite Council making submissions at the Panel hearing that it would not oppose discretionary height controls, it has since changed its position and has adopted it with a mandatory maximum height.
10. Although an adopted amendment would normally be given weight as a seriously entertained proposal, I am not convinced that this particular amendment, at least in terms of the mandatory/discretionary height limits, should be given the same weight that would be given to other adopted amendments. I am concerned that Council has taken very different and inconsistent approaches to height controls and that it is very likely that DDO18 will be approved with discretionary rather than mandatory height limits. As discussed at the hearing, changing from mandatory to discretionary controls is not as simple as changing one or two words and the result can lead to unintended and sometimes impractical outcomes.
11. It is also unclear to me why Council is seeking to impose a mandatory height control of 17 metres (one metre less than the existing discretionary limit) when it has been supporting proposals which already exceed that height. The removal of two levels required by condition 1a) would still result in a building exceeding the 18 metre height by approximately 2 to 3 metres. It suggests that Council is no longer pursuing the 5 storey height contained in DDO13, despite its support for a mandatory 17 metre height in DDO18. It also suggests that the heights specified in DDO13 and DDO18 bear little relationship to what is occurring on the ground.
12. In addition to the preferred height specified in DDO13, it is also necessary to consider the site context and the particular layout and composition of the buildings on the review site in deciding whether the two levels should be retained.
13. I have already observed that the precinct contains not less than 15 developments built, approved or under consideration comprising buildings of between 5 and 9 storeys. There are 5 seven storey buildings existing, approved or proposed along both sides of Breese Street in proximity to the review site. In addition, there is the 9 storey building on the former Whelan site.
14. I consider that the site context is such that two eight storey buildings on the review site, although exceeding the preferred height by 3 storeys, would be consistent with the scale of new buildings in this precinct. However, I also accept that 5 and 6 storey buildings would also be consistent with the scale of existing 5 and 6 storey buildings, although most of those are on smaller lots than the two parcels comprising the review site.
15. In considering whether the two top levels should be removed, I have been mindful that the two eight storey sections of the buildings on the review site only occupy a portion of the whole site and occupy a proportionally smaller footprint than the higher levels on the existing six and seven storey buildings. Unlike those other developments, the proposal on the review site incorporates three and five storey buildings which provide a physical and visual transition to the two top floors which is further enhanced by the curved form of the building on site B and the additional Duckett Street setback proposed by Mr Sheppard for the building on site A. (see below)
16. Mr Sheppard appeared at the hearing and gave evidence supporting the two top levels, although with a recommendation that the top two levels of the building on site A should be set back at least 10 metres from Duckett Street. I do not repeat his detailed reasoning for the additional setback which is set out on pages 5, 6 and 7 of his evidence statement, but in essence it is to largely achieve a building height to street wall ratio of 1:1 - a concept contained in the proposed DDO18.
17. I accept his suggestion and have reworded condition 1a) to require an additional setback rather than deletion of two floors. A consequence of that change is to further reduce the footprint of the two top floors of the tallest building on site A, which further reduces the visual impact of the built form.
18. Mr Sheppard also appeared at the Amendment C134 Panel on behalf of Council. Although Mr Clarke was critical of the apparent inconsistency between his support for a 17 metre height limit in DDO18 and his support for the eight storey buildings on the review site, I accept that Mr Sheppard's support for a 17 metre building height at the Amendment C134 Panel hearing was on the basis that it was discretionary, not mandatory as now adopted by Council. I also accept that he was supportive of an exemption of third party involvement for those buildings that did not exceed the discretionary 17 metre height, but that applications above that height could be contemplated and would not be exempt from notice and review. The redrafted DDO18 contained in the Amendment C134 Panel report reflects his position.
19. I do not find Mr Sheppard's opinion inconsistent given his ongoing support for discretionary building heights and the consequential need to assess each proposal individually. That is what he has done with this proposal.
20. In supporting the retention of the two top floors, I do not resile from the comments I have made in at least two other Moreland cases referred to by Mr Clarke.[3] In those decisions I commented that the progressive approval of taller buildings could result in ever higher buildings being proposed as the prevailing heights increased. In the present circumstances it would suggest that approval of two eight storey buildings on the review site would justify buildings of eight or more storeys on other sites in the precinct. That without the deletion of two floors it would set a precedent for ever higher buildings.
21. I acknowledge that approval of this application does change the site context for future development. However, I note that unless sites are consolidated there are few large, underdeveloped sites remaining in this precinct and that what is possible on a site as large as the review site may not be possible on other smaller sites in the precinct. Other sites may also have boundary interface issues which do not affect the review site. But even if buildings are proposed of eight or more storeys, each will have to be assessed against the Planning Scheme provisions in place at that time, including DDO18 in whatever form it is approved. I do not accept that retention of the top two levels on these two buildings means that other proposals of a similar or greater height will gain greater traction or automatic approval.

1. I do not want to downplay or hide the fact that the eight storey buildings will represent a significant departure from the existing built form on these sites adjacent the railway line and Upfield Shared Path. However the review site forms part of the Sydney Road/Upfield Corridor and is within walking distance of the Anstey train station and all the facilities and services in Sydney Road.
2. Council, through its strategic planning work, is establishing a framework which permits buildings of the general scale proposed in this application. Whilst the proposal may seem to be further extending what is deemed an acceptable height in this precinct, I consider that the additional height is supportable on these two sites.
3. As I have already noted, the two eight storey sections of the proposed buildings have relatively small footprints, have no unreasonable off-site amenity impacts in terms of overshadowing or overlooking to residential properties (particularly those to the west of the railway line in a Neighbourhood Residential Zone) and with one exception do not have a direct abuttal to a site containing a dwelling in the Commercial 1 Zone.
4. In the absence of any unreasonable off-site amenity impacts it is also necessary to ask whether removal of two floors and the loss of 36 dwellings are justified on a site with the acknowledged locational attributes because of its proximity to Sydney Road and the Anstey railway station.
5. I therefore do not support the removal of the top two levels as required by condition 1a).

A CONSEQUENTIAL CHANGE IS REQUIRED TO THE PERMIT PREAMBLE

1. As a consequence of my decision to retain two levels and reword condition 1a), it is necessary to amend the description of what the permit allows to refer to two eight storey buildings.

[1] I have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I do not recite or refer to all of the contents of those documents in these reasons.

[2] Naqebullah v Kingston CC (Correction) [2014] VCAT 1537.

[3] Calodoukas v Moreland CC [2012] VCAT 180. Sydney 808 Pty Ltd v Moreland CC [VCAT] 1132.