Victorian Civil and Administrative Tribunal|2004-04-08|Before: Mr P

Michael Yates & Co Pty Ltd v Stonnington CC [2004] VCAT 637 (8 April 2004)

Section 79 of the Planning & Environment Act 1987; Stonnington Planning Scheme; Chapel Street/Toorak Road; Activity Centre; Melbourne 2030; Business 2 Zone; Clause 22.02; Height Control Precinct B; Forrest Hill Precinct; Building Scale - Height and Mass; Landmark; Strategic Justification; Pedestrian Access/Safety.

In permit application no. 0777/03, a permit is not granted and no permit is to issue.

Mr I McP Pitt SC and Mr A Finanzio of counsel instructed by Minter Ellison Lawyers. Mr Pitt SC called the following persons to give evidence:

Reports by Mr D Grogan, traffic engineer and Mr M Liddy, architect and computer modeller, were filed and served. They were not called to give evidence and no party sought to cross-examine them.

Mr M Dreyfus QC and Mr P Connor of counsel by direct brief. Mr Dreyfus QC called the following persons to give evidence:

* Mr J McDonald, architect in relation to environmental sustainability/design.

Mr V Evangelou for Melbourne High School on the first day of the Hearing and Mr D Smyth, Assistant Principal on the third day of the Hearing.

1 This is an Application under Section 77 of the Planning and Environment Act 1987 brought by Michael Yates & Co. Pty Ltd against the failure of the City of Stonnington ("the Council") to determine permit application no. 0777/03 within the prescribed time. The Application for Review was lodged on 19 November 2003.

2 Mr Pitt SC noted that a set of plans circulated with the statements of evidence included changes proposed by some witnesses but there was no request to substitute plans.

3 The subject site comprises four titles and is known as Nos. 5-10 Yarra Street. It is located on the east side of Yarra Street and forms part of the former Pinnacle Yeast Factory holding. The land has a frontage of 79.8 metres and a depth varying between 38.33 and 39.62 metres resulting in an area of around 3,121.6 square metres. The land is currently vacant, with most buildings and works associated with the former use having been demolished. The land falls toward the north east.

4 The subject site adjoins vacant land to its north, at No. 11 Yarra Street, for which a planning permit has been granted by the Council to erect an office building comprising seven storeys. At No. 12 Yarra Street, a planning permit has also been issued by the Council for a 46 metre high building comprising offices at the lower level and 127 residential units above. This is part of the former Tetley Tea site.

5 To the immediate south of the review site, at No. 4 Yarra Street, is a brothel operating from a double storey brick building.

6 To the rear, or east, of the site are lots fronting Claremont Street. One, at No. 21-27 Claremont Street, was also formerly part of the Pinnacle property and has a planning permit for a seven storey office building with a height of around 18 metres. The other lots abutting the eastern boundary of the review site are currently vacant (Nos. 9-13 and 15-19 Claremont Street).

7 To the west, opposite the site, is the South Yarra Railway Station with the rear of units in Darling Street further again to the west.

8 The area of the subject site includes a mix of uses including office and warehouses in mainly low rise buildings of around two storeys but with some three storey forms. There are a range of other uses in the locale, such as entertainment facilities and car parks.

9 Yarra Street carries two way traffic and has a footpath on its east side only. The street is used by students from Melbourne High School, further to the north of the review site, to access the South Yarra Railway Station.

10 The review site is close to the Toorak Road/Chapel Street shopping centre.

11 The permit application seeks approval for the use and development of the land for a 25 storey building (including basement) comprising:

* two cafes (270 square metres) at the ground level;

* a health spa at the first floor level (350 square metres); and

* a gym/sauna to service occupants of the dwellings at the third level (138 square metres).

12 The mix of units is 215 single bedroom dwellings and 83 two bedroom apartments. Some 13 of the two bedroom units are penthouses with an additional study.

13 A total of 357 car spaces is proposed in one basement and the podium, 13 of which are tandem.

14 The development is proposed to be built to the site boundaries at the basement level. The ground floor would be setback by 2 metres from Yarra Street with this level otherwise also built to the boundaries. The remainder of the podium levels have the same footprint as the ground level.

15 The third level is the commencement of the residential use (other than the entry foyer to Yarra Street). This level would be setback by a minimum of 4.5 metres from the eastern boundary, 6.6 metres from the northern boundary, 6.6 metres from the southern boundary and 10.3 metres from the lower levels to Yarra Street.

16 The remaining levels are essentially the same, being levels 4-20. The setback to the eastern boundary would be the same for level 3, with the setbacks to the north and south boundaries being 5 - 6.6 metres and the setback from the lower levels to Yarra Street being 10.3 - 11.5 metres. Each unit would be provided with a balcony. The envelope of the tower is around 70 metres (long) x 20 metres (wide).

17 The uppermost floors, at levels 21-23, include plant, another gym/sauna and 13 penthouse units. These units extend through the building and each would be provided with a balcony.

18 The proposed development would have an overall height of around 77 metres. The west and east façades are proposed to be divided into vertical bays. The southern elevation is predominantly clear glazing. A range of materials and finishes are proposed, as shown in the application plans.

19 The cafes would open from 7am to 7pm while the first level health spa would operate from 7am to 7pm.

20 The subject site is located in a Business 2 Zone ("the B2 Zone") pursuant to Clause 34.02 of the Stonnington Planning Scheme ("the Scheme"). A permit is required to use and develop the land for the purpose of dwellings, cafes and health spa. Decision guidelines are set out in relation to the use of land, buildings and works. Exemptions apply in relation to notice and appeal rights in relation to buildings and works. Clause 55 does not apply and instead the proposal must be assessed in terms of Clause 19.03.

21 An Environmental Audit Overlay applies to the land. This overlay does not trigger a permit but requires certain audit statements to be obtained prior to residential land use.

22 A Land Subject to Inundation Overlay applies to part of the land. A permit is required for buildings and works. Melbourne Water does not object to the proposal subject to conditions. We were advised that it is proposed to include the review site in a Special Building Overlay, although Amendment C18 to the Scheme has not been gazetted.

23 A number of other Clauses are relevant to this Application, and have been considered by the Tribunal. They include:

* Clauses 11, 14, 15, 16, 17 & 18 of the State Planning Policy Framework.

* Local policies, including Clauses 21.03 (Strategic Framework Plan), 21.05 (Urban Environment and Character), 21.07 (Housing Choice and Diversity), 21.09 (Retailing Areas Viability), 21.10 (Identity of Commercial Areas, Their Focus and Residential Interface), 21.12 (Transport ), 22.02 (Urban Design Policy), 22.05 (Residential Development in Commercial Areas Policy), 22.09 (Retail Centres Policy) and 22.13 (Parking Policy).

* Clause 52.06 addressing car parking and Clause 52.07 (loading).

24 Melbourne 2030 has also been taken into account by the Tribunal. "Prahran/South Yarra" is identified as a principal activity centre. South Yarra Railway Station is part of the Principal Public Transport Network. Melbourne 2030 is a document to which the Tribunal must have regard [see O'Connell Street Developments Pty Ltd v Yarra City Council & Minister for Planning (2003) 13 VPR 247].

25 We have considered the submissions presented by the parties, inspected the site and locality, and reviewed the proposal in terms of the applicable planning policies and objectives of the Stonnington Planning Scheme. We have been assisted by the evidence of both parties and the impressive imaging and visualisation packages presented on behalf of the Applicant. On inspection, we viewed the site and locality from many of the same vantage points demonstrated in the images.

26 The key issues for determination are whether the proposal is acceptable in terms of the applicable policy directions and the emerging character of the area and whether the proposal is appropriate to the site and its context. We briefly address several other matters later in these reasons.

27 It is first necessary for us to consider the strategic planning framework that is relevant to our consideration of this Application. That is because the weight to be afforded to various elements of the Scheme is in dispute.

28 Before so doing, we record that the B2 Zone is intended for office uses although the policies of the Scheme (at Clauses 21.07 and 21.09) indicate that the B2 Zone is applied to "enable residential development to be encouraged to locate in the vicinity of commercial centres and integrated into smaller retail areas" and "...to provide suitable opportunities for office development, to promote alterative commercial activities and to encourage residential development". There are a number of other statements in these Clauses that make the same points and there appears to be no suggestion by any party that the use of the land essentially for housing is inappropriate.

29 We are aware of the proximity of the proposed development to an adjacent brothel. This is not regarded as an issue by the parties in this case and we note that the operator did not seek to pursue an objection through these proceedings. Of course, there are many school children currently walking past the premises each day.

30 Section 74 of the Prostitution Control Act 1994 states that a Responsible Authority must refuse to grant a permit for a brothel if (inter alia) the land within 100 metres of a dwelling other than a caretakers dwelling and in other cases before the Tribunal the proximity of a new use near to an existing brothel has been a relevant consideration (see Appeal Nos. 1997/00708 & 1997/76497 Boydell v Yarra City Council and Anor).

31 Pursuant to Clause 34.02 and 65, we must consider state and local policies.

32 Clause 19.03 is an important consideration in these proceedings. We do not recite all of the provisions, but emphasise the following considerations:

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

* 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.

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

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

* 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.

* Enjoyment of the public realm should be enhanced by a desirable balance of sunlight and shade.

* This balance should not be compromised by undesirable overshadowing or exposure to the sun.

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

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

33 At Clause 21.10, the mixed use zone is applied to "facilitate a transition to compatible redevelopment" but no similar reference applies in relation to the B2 zone.

34 At Clause 21.10, Forrest Hill is identified as a Group 5 mixed use area. A number of strategic directions are set out for this group of centres and we note the following specific provisions for Forrest Hill and Prahran:

* Encourage the more intensive and larger scale mixed uses, such as office and service uses, to these localities.

* Encourage future use and development in these localities to be of a scale, height and intensity that is consistent with the traffic and parking capacities of the areas.

35 Under the heading "Policy and exercise of discretion", the local policy at Clause 22.02 is said to give:

guidance on preferred heights and setbacks for any buildings or works in the Chapel Street, Toorak Road commercial centre, in order to respect the character and identity of the area by managing the scale, density and design of future commercial development.

36 Clause 22.02 sets preferred heights and setbacks by way of a map associated with the Clause. The subject site is within Precinct B where the preferred building height is 16 metres and a building is to be setback 6 metres for parts of the building over 8 metres. [The Como site is within Precinct D and the Fun Factory within Precinct K, both of which have no specified height or setback requirements instead referring to any planning permit issued].

Development in the Chapel Street, Toorak Road commercial centre not exceed the preferred height or setback defined on Map 1: Chapel Street and Toorak Road Precincts_._ If the preferred height or setback is exceeded, the applicant is to demonstrate satisfactorily that the development:

* Is compatible with and respectful of the scale and character of existing buildings and the area.

* Encourages and facilitates the appropriate retention, recycling, restoration, renovation, redecoration, maintenance and effective use of existing and significant buildings, including their shop fronts and verandahs.

* Promotes the conservation of architecturally and historically significant buildings.

* Achieves a pleasing physical environment, including pedestrian and shopper safety and amenity, by encouraging a high standard of architecture, urban design and streetscape works.

* Accommodates uses that are specifically encouraged in the area, and in particular, residential uses on upper floors.

* Meets all relevant requirements within the zone and overlay.

38 These criteria assist to consider a proposal that seeks to exceed the preferred heights and setbacks shown on the map.

The responsible authority encourages the following and may support built form variations to this policy if this will facilitate:

* The restoration and retention of heritage places.

* Renovation and recycling of older style buildings.

* Effective use of upper floors of commercial buildings.

* Shop top dwellings and residential development within commercial areas.

* Medical and other service uses locating in commercial rather than residential areas, particularly in Group 4 centres.

* Improvements to public transport, such as bus or taxi parking, community services or infrastructure as part of new development.

40 The same Clause includes specific provisions for large sites, defined as being more than 0.5 ha in commercial areas. It is common ground between the parties that the subject land is less than this area in size and therefore this part of the policy is not strictly applicable. However, we think it is fair to conclude that it is a large site in relative terms given the pattern of lots in the Forrest Hill Precinct/Precinct B. This factor can not be overlooked.

41 It is common ground between the Responsible Authority and Applicant that the height and setback provisions are based on strategic research that was undertaken more than 15 years ago, and closer to 20 years ago, as discussed in a report prepared by an Advisory Committee appointed to consider several matters in relation to a proposal to develop land at No. 10 Claremont Street for an 11 storey building (August 2002). The Advisory Committee referred to the "very stale strategic foundation" of the current Scheme provisions (at page 23).

42 We understand that criticism caused the Council to undertake the preparation of Urban Design Guidelines for the Forrest Hill precinct ("the Guidelines"). Following public consultation in the second half of 2003, Guidelines for Nos. 5-11 Yarra Street and Nos. 12-13 Yarra Street were adopted by the Council in December 2003. [These properties have a combined area of 7,671 square metres and are contiguous lots]. The adopted Guidelines state at Page 3 that they are an initial stage of a broader study known as the Forrest Hill Precinct Urban Design Study, for which we understand Pride of Place funding has recently been received by Council.

43 We do not recite all of the relevant guidelines in the December 2003 Guidelines document, but note the following:

* the maximum height of walls built to the new street alignment should be 2.5-3 storeys, or 10-12 metres whichever is the lesser; this forms a podium for higher elements.

* building height should not exceed 45 metres for any site on Yarra Street.

* an additional 5 metres above the 45 metres if permissible for architectural roof top features to enhance the skyline.

* a minimum distance of 18 metres should be provided between the tower components of a building or building.

* the maximum horizontal dimensions of buildings parallel to the street frontage should not exceed 40 metres.

44 The proposal does not meet the latter three components, and is slightly over the podium height referred to (although that latter point is not a substantive issue between the parties). The proposal has a height of 77 metres and a dimension parallel to Yarra Street of around 70 metres.

45 There are other provisions relating to side and rear setbacks set out in the Guidelines in addition to matters relating to design, materials and car parking.

46 The Guidelines are relevant to the consideration of a permit application that seeks to exceed the preferred heights and setbacks but what weight should they be given in determining this Application? They are relevant to take into account as an adopted policy or adopted guidelines pursuant to Section 60 of the Planning and Environment Act 1987. In addition:

* the fact that they exist and that further work is being pursued by the Council, assisted by recently received State government funding, confirms Council's belief that the current Scheme provisions warrant review.

* the fact that the Guidelines refer to a 45 metre maximum building height in Yarra Street is another indication that the Council would accept buildings higher than 16 metres, reinforced by the fact that it has issued permits for 7 and 15 storey buildings in the Forrest Hill precinct in recent months.

* we understand that the Guidelines have been mindful of the policy directions of Melbourne 2030 as referenced in the document.

47 The Guidelines may include principles that make planning sense, such as maintaining a human scale to the public realm, a consideration at Clause 19.03. However, we consider that the nominated provisions can not be determinative in this review, for the following primary reasons:

* the Guidelines do not address the whole of Precinct B, only part of it, and have been developed to address a larger land holding to that involved in the current Application; outcomes for larger sites may well differ to smaller sites on a performance based approach (as recognised by Clause 22.02).

* the basis for the selection of 45 metres as a maximum height is not entirely clear. We were provided with extracts of the draft Guidelines that give some indication but there is nothing before us to conclude that 45 metres is reasonable, too high or too low.

* the Guidelines have not been tested through any independent Panel or Advisory Committee process.

48 We next refer to was described by the Applicant as the "fresh" policy of Melbourne 2030 contrasting with the "stale" and outdated Clause 22.02.

49 Melbourne 2030 identifies "Prahran/South Yarra" as a principal activity centre. South Yarra Railway Station is part of the Principal Public Transport Network. Some of the imperatives and directions set out in Melbourne 2030 are now well known. For example, there is a need to comfortably absorb some 620,000 extra households and an emphasis on the protection of "the liveability of established areas and to increasingly concentrate major change in strategic redevelopment sites such as activity centres and undeveloped land" (page 1 of Melbourne 2030). There is no doubt that the policy supports higher density housing in strategic locations. Change, including quite significant change in the built environment in strategic location such as the Forrest Hill precinct is, therefore, an inevitable consequence of the successful implementation of Melbourne 2030.

50 These matters were given great weight in the submissions and evidence presented by the Applicant. Mr Pitt stressed that the combination of the location of the review site within the activity centre and adjacent to the Railway Station, its separation from sensitive uses such as housing, and its size as representing "an unequalled opportunity for development that is a manifestation of the principles underscoring urban consolidation emphasised by Melbourne 2030".

51 We agree that the review site represents an opportunity for redevelopment. It is perhaps trite to say that a development at 7, 12 or 15 storeys, would make a contribution to urban consolidation and Melbourne 2030's housing policies. A lower rise building would not, however, make as significant a contribution as the current proposal. Likewise, an even taller building would make a greater contribution to that objective of Melbourne 2030.

52 There is no doubt that Melbourne 2030 is an influential policy statement, one to which we have regard pursuant to Section 60 of the Planning and Environment Act 1987. However, Melbourne 2030 does not suggest that priority should be given to the population/housing objectives over and above others such as those for urban design included at Direction 5.

53 Having said that, we appreciate that in some inner city locations, the adoption of population/housing projections and the identification of particular places to achieve the projections in accordance with the locational strategies of Melbourne 2030 will not be simple. The Forrest Hill Precinct is clearly one location that has the potential to make a contribution in this regard. The area as far east as River Street has already seen a significant amount of residential development and recent approvals between Chapel Street and the railway line reinforce the importance of this end of the activity centre for housing purposes.

54 Melbourne 2030 is intended to give "a high level overview of the directions metropolitan Melbourne is expected to take" (page 1). It is to be implemented through a range measures including detailed work at a local level as to how the policies will in fact manifest themselves through planning controls/policies in specific geographical areas. This is addressed at page 52 of Melbourne 2030 that also refers to "Careful structure planning will provide a basis for supporting more intensive and varied development...". That work has yet to be completed for the Forrest Hill Precinct.

55 The main issues in relation to the physical form of the proposed development focus on its height and mass (breadth). These are matters that must be considered together, perhaps more simply described by the term "scale".

56 We say that on the basis that it appears to be common ground between the Council and Applicant that:

* the podium/tower form is acceptable including the podium height;

* the architectural quality of the design is not in issue;

* an active street frontage is provided through the inclusion of cafes;

* the effective widening of the footpath, achieved by a 2 metre setback at ground level, is desirable given the volume of pedestrian traffic along Yarra Street;

* entry/exit arrangements to the car park and residential component are acceptable.

* we find the architectural composition to be acceptable and do not need to address the evidence of Ms von Hartel and Mr Hutson relating to the excellence of the design.

* we note Mr Milner's concerns about internal amenity in terms of the unit layout and lack of direct daylight to study spaces. However, we are generally satisfied with the internal amenity, even though the rear study spaces in some units would rely on artificial lighting.

* we consider that despite some debate about energy rating (individual dwellings contrasted with building fabric), the development could comply with a 5 star rating requirement for the building fabric.

58 In considering the submissions and evidence in relation to built form, in addition to the matters we have already referred to in terms of the applicable policy framework, we comment that:

* we have not located any specific policy reference to the creation of a transition from the Fun Factory site to lower development forms elsewhere in the activity centre, however, it could be implied to some extent in the variation in the heights in different precincts shown on Map 1 to Clause 22.02.

* we have not located any specific policy reference to the creation of a hard edge to the activity centre.

* we have not identified any specific provision identifying the Fun Factory site as of landmark status other than the site-specific nature of its inclusion in its own precinct under Clause 22.02. It is, however, widely recognised as a landmark site being on a corner and at an entry to the Toorak Road commercial strip as well being sited opposite the Como centre [see Toorak South Yarra Group Inc. and Ors v Stonnington CC [2002] VCAT 651 (5 August 2002).

59 The proposal would meet some of the criteria for exceeding heights/setbacks at Clause 22.02. For example, it provides for residential development and widens the existing narrow public footpath. It is not compatible with and respectful of the scale and character of existing buildings within Precinct B and does not, in our view, include features that warrant "bonus points" in terms of ecologically sustainable development.

60 The proposed development would have a height of 24 storeys above ground level being 77.8 metres (at AHD 85). This compares with the Fun Factory that was approved at 27 storeys (at 97.5 AHD) and the Como tower at 21 storeys (at 83 AHD). On the information before us, it would be a considerably broader tower form than other developments such as the Como tower and Channel 10 tower given its 70+ metres length.

61 The existing context of the Forrest Hill precinct does not include any building of the scale proposed:

* the Fun Factory proposal is the closest comparable example in terms of actual height, although no works have commenced.

* the ANZ building in Toorak Road is comparable in breadth (although this length is not along a street frontage) but is much lower in height.

* the only other taller elements in the Forrest Hill precinct would be approved developments at 11, 12 and 15 storeys if they proceed.

62 Moving to the east side of Chapel Street, there is the major Como redevelopment site originating from the Chia project. It includes buildings at 16, 18 and 21 storeys (eg. Armytage, Lonsdale and Channel 10 buildings respectively). These developments were said by the Applicant to form part of the review site's strategic context, a contention given weight by the breadth of the urban context report prepared prior to the permit application being lodged based on boundaries agreed with the Council extending as far as River Street (ie. encompassing the whole of the former Chia site/Como site).

63 While we do not disagree with the basis of research that considers a wide context, and we note that buildings within the Como precinct are visible from the Forrest Hill precinct, it is noteworthy that the areas are currently treated differently by the Scheme and Council appears to seek to continue to do so. The proposal would exceed these forms on the east side of Chapel Street in terms of its height and mass.

64 It is common ground in the evidence that the review site is mid-block, is not identified as a landmark site and is not in a gateway location. The Applicant correctly noted that there is nothing in the Scheme to require a large building to be located at a landmark or gateway site or on a main road. It is, however, on the railway.

65 We are not persuaded that the strategic context of the review site requires new development to be consistent with the existing built form pattern. As it presently exists, excluding approved developments, the scale is around 2-3 storeys. It is of a "fine grain" when contrasted with large redevelopment sites such as Como but it is not of the same fine grain as seen in residential streets in Prahran and Windsor. That is, there are a large number of small scale office and warehouse type uses interspersed among some larger sites and developments, including some recent residential development. It is, in our view, typical of many older commercial and industrial precincts one might have found, and can still find, in parts of inner Melbourne.

66 For reasons we have set out, we can not conclude that Clause 22.02 is wholly irrelevant when having considered its provisions and, indeed, the proposal can be said to be consistent with the policy direction for the Forrest Hill precinct to encourage more intensive development. It fails against the specified heights and setbacks. However, the particular circumstances of a site or proposal must be reviewed to determine if there are factors that properly weigh in favour of an application, despite non-compliance with some specific policy provision, and whether an acceptable outcome is achieved as required by Clause 65.

67 That can, on one view, be said to be the approach taken by the Tribunal in Application for Review No. P3021/2003 Australian Horizons v Stonnington CC and Others.

68 Mr Pitt submitted that there would need to be a compelling reason if this proposal was not allowed to proceed. While many of the points that he made could be persuasive, we think that the proper future planning of this precinct weighs against his submission. The cases referred to by Mr Pitt of Australian Horizons and Bamfra Nominees Pty Ltd v Darebin CC [2003] VCAT 1741 in our view give support to the proposition that a development that is found on its merits to be acceptable should be granted a permit. Our reading of Australian Horizons is that the Tribunal felt that the development was not required to be reduced as had been sought by those opposing the proposal as it was not persuaded that there is a compelling reason to do so. We contrast this with the current proposal which we can not conclude is acceptable in the form proposed based on the current policies of the Scheme, the existing built form, and the emerging built form reflected by issued permits.

69 Mr Pitt referred to the following comments of the Advisory Committee (August 2002) that considered a proposal for the redevelopment of land at No. 10 Claremont Street:

The redevelopment of the east side of Chapel Street did not just happen; it was the consequence of long term planning. The future of the Forrest Hill area should similarly not be determined in a piecemeal fashion or be influenced by site specific outcomes. It is much too important for that. It is the opposite of what good "planning" is all about to just rezone land out of context and on a piecemeal basis. This area must be thoroughly researched to enable the Council to set acceptable development parameters for all players and not just isolated properties.

70 These comments are entirely apt in the current circumstances. Approval of the current proposal would result in a site specific outcome of a magnitude that would pre-empt the future of the Forrest Hill precinct. We are not persuaded that the proposal is underpinned by the necessary strategic rationale to give a basis for its approval. Rather, we have the existing 16 metre height policy at Clause 22.02 that Council conceded could be increased to 45 metres whereas this proposal seeks to take what could be said to be a major leap to 77 metres. While we can envisage that the 16 metre limit may warrant change, the Council's position in relation to the strategic direction of the area has not been independently tested by a Panel or Advisory Committee, nor approved by the Minister for Planning. That is the same for 24 storeys (ie. excluding basement). While there has been an urban context report prepared and we must give weight to the provisions of Clause 11, we cannot conclude that these factors alone give justification to the proposal.

71 As put by the Advisory Committee for No. 10 Claremont Street, the Forrest Hill area is strategically significant. It should not be approached through ad hoc approvals when such approvals would radically change the existing building form and would raise the expectations of other property owners.

72 We add that much of the discussion in this Hearing related to built form. A strategic planning exercise for an area such as Forrest Hill can not ignore land use outcomes. In the end, it is not up to this Tribunal to set a new strategic direction; that should be undertaken by a planning authority.

73 Our findings are consistent with similar approaches taken in cases such as Application for Review No. P56/2003 Melbourne City Council v Minister for Planning and 420 Spencer Street Developments Pty Ltd where the Tribunal said:

In our view the applicable policy framework has not been formulated to a sufficient degree of detail and clarity to enable us to form the view that a 26 storey building on this site is consistent with the outcomes sought to be achieved for the CDB Fringe. In the absence of such policy support we are also of the view that the proposal represents a scale of development which does not respond in an appropriate manner to its local context.

74 Similarly, in Searspoint Pty Ltd v Melbourne City Council and Others [2002] VCAT 1538 the Tribunal found, among a number of factors that finally sought the proposal being rejected, as follows:

At 41+ metres (excluding lift over-run), the proposal is inconsistent with the design outcome of DDO18 currently included in the Scheme that adopts a preferred maximum height of 15 metres and seeks an outcome where the scale of development is compatible with 4-5 storeys. At that height, and with no podium to Sturt Street, the proposal is also not consistent with the adopted version of Amendment C20 (DDO39 or Clause 22.13) or with the Panel's recommendations in relation to height (32 metres) and form. In that context, we find a proper strategic justification for the proposal to be absent.

75 We do not consider our findings to be at odds with the Tribunal's determination in Vasiliou v Stonnington CC [2003] VCAT 785. That application considered a proposal for an 11 storey building on the land at No. 10 Claremont Street, essentially the same proposal as considered by the Advisory Committee referred to above, being 57 serviced apartments and a chapel. At the time of its decision, the Council's draft version of the Urban Design Guidelines for Yarra Street and Claremont Street had not been completed. The Tribunal was appraised of the Advisory Committee's position that there was no contemporary strategic context to justify a change in height controls on a site specific or precinct basis or the support the proposal. The Tribunal commented as follows at paragraph 11:

The Responsible Authority's approach to these larger sites recognises that it is not always fair or appropriate to make land owners wait long periods, in this case many years, for a proper assessment of their proposal, on the basis that the planning policy framework relevant to the locality is in need of review. It seems to us that the question to be resolved in this case is whether or not the present proposal if approved is likely to prejudice the development of a long term plan for the management of use and development of land within the precinct. We have already reached the relatively uncontested conclusion that the proposed use of the land is an appropriate use, the remaining issue to be resolved is whether or not the proposed building is appropriate from an urban design/neighbourhood character perspective.

76 It was significant to its ultimate decision to direct the issue of a permit that the Tribunal considered the proposal for an 11 storey building to be consistent with the character of the locality, and the scale and form of existing and proposed buildings in the environs. We have not been so persuaded in the current proceeding; nor have we been persuaded that the proposal would not prejudice the planning of the Forrest Hill Precinct.

77 It is evident, therefore, that we do not accept Mr Pitt's submission that no further strategic work should be awaited and that the proposal is not premature. Moreover, we do not accept that there is little further strategic work that could be done that is likely to have a bearing on the outcome of development proposals on the land or that the application can not be regarded as piecemeal.

78 To conclude, we accept the general proposition put by Mr Pitt that not all development should be put on hold pending completion of strategic planning. However, when a proposed development presents a radical departure from previously accepted built form and current thinking as evidenced by recent permit approvals, and when the precinct is of considerable strategic importance, we find there is justification to reject a development which would result in a monumental leap outside existing planning parameters. It would cause the direction for this very important renewal area to be set in a manner that is not consistent with the Scheme provisions and policies and is not evident in adopted policies. Unlike Vasiliou, the scale of the proposal is not consistent with, or in the same ballpark as, others that have been approved. It goes beyond much of what has been allowed on the Como site. The future direction for the Precinct should be set through a managed process as intended by Melbourne 2030.

79 The Council raised no issue with the proposal in terms of the volume of parking proposed, accepting the evidence of Mr Grogan.

80 The proposal would provide 327 spaces, less than the 668 spaces estimated by Mr Grogan to be required by Clause 52.06. Mindful of the analysis by Mr Grogan, the matters to be taken into account in considering a reduction in the parking requirements of the Scheme at Clause 52.06, and the policy at Clause 22.13, in principle we find the parking proposed would be acceptable for the combination of uses included in the Application.

81 The proposal would add a considerable volume of traffic to a confined and narrow street network. Despite Mr Grogan's findings, the Applicant proposed assisting with the upgrading of nominated intersections by way of a permit condition. If we had been minded to direct the issue of a permit, we would have accepted that condition.

82 The main issue raised by Mr Smyth in terms of pedestrian movement is the ability of students from Melbourne High School to safely access the South Yarra Railway Station. We understand from Mr Smyth's submission that an extraordinarily high proportion of students from the School use the Railway Station, being some 95%. There is, as described by Mr Milner, a "wave" of students along Yarra Street in the morning with greater congestion in the afternoons when more students depart simultaneously. The proposal would provide for an additional 2 metres of footpath area and this would be a positive addition to the pedestrian environment along Yarra Street.

83 The Council submitted that the proposal had failed to provide a through block pedestrian pathway that might eventually lead to Daly Street. Such a link is proposed in the Guidelines. Increasing the permeability of the Precinct would have merit in our view, although we would not refuse the Application for reason of the absence of a link. A structure plan, or similar strategic plan, for the Precinct would enable the pedestrian environment to be enhanced along the length of the street and through the area.

84 Sightlines to the car park/accessway should ensure that pedestrians can readily be seen. The design was said to comply with the relevant Australian Standards but given the number of students using Yarra Street, additional warning or similar devices are warranted to maximise safety.

85 During the course of the Hearing Mr Milner raised some concerns about infrastructure in the Forrest Hill Precinct, although in cross-examination this mainly concerned traffic movement and open space. These were not vigorously pursued by Mr Milner and we are not persuaded to reject the proposal on the basis of these issues.

86 For the above reasons, we conclude that the proposal is not acceptable. We will therefore direct that no permit issue.

Environment Act 1987

Michael Yates & Co Pty Ltd v Stonnington CC [2004] VCAT 637

At a glance

Court

Decision date

Before

Source

Judgment (153 paragraphs)

Michael Yates & Co Pty Ltd v Stonnington CC [2004] VCAT 637 (8 April 2004)

Parties

Legislation Cited (1)