Minawood Pty Ltd v Bayside CC

Minawood Pty Ltd v Bayside CC - [2009] VCAT 440 - VCAT 2009 case summary — Zoe

[13]

This is an application to amend an existing permit[1]. The subject site is occupied by Khyat's Hotel, an iconic local landmark and 'watering hole'. The permit allows 21 dwellings in a three storey development whilst retaining the front portion of the existing hotel. The amendment to the permit now proposes to demolish the remaining portion of the hotel and replace it with a further 5 dwellings.
The proposed demolition of Khyat's Hotel has generated an enormous groundswell of public opposition. In excess of 4,300 statements of grounds have been received by the Tribunal vehemently opposing the loss of Khyat's Hotel. There has been a small handful of submissions supporting the application.
Khyat's Hotel has existed and traded continuously as a hotel since its construction in 1865. Its built form has altered considerably over time. It was extensively extended and remodelled during the 1950's resulting (largely) in the present external appearance of the building. Despite its age and location within the Brighton Civil Precinct, the hotel is not included in a Heritage Overlay. It has been considered for inclusion on a number of occasions, but each time the council has resolved against its inclusion. Following this application to amend the permit, council requested the Minister for Planning to place an interim Heritage Overlay over the site. The Minister has refused this request[2].
The council has resolved not to support the amendment on the following grounds:
- The proposed Amendment to the Permit does not respect the cultural, social and historic associations and significance of the site.
- The proposed Amendment to the Planning Permit does not accord with the objectives of Clause 22.07 - Neighbourhood Character Policy of the Bayside Planning Scheme.
- The proposed Amendment to the Permit will dominate and detract from the Neighbouring heritage buildings.
- The proposed Amendment to the Planning Permit does not comply with the front and side setback requirements of the Schedule to the Residential 1 Zone and the Bayside Planning Scheme.
We agree with the council that the application should be refused because the proposed amendment to the permit does not respect the cultural, social and historic associations and significance of the site. We also agree that it fails to accord with the objectives of the Neighbourhood Character Policy as well as other objectives relating to cultural identity within the Bayside Planning Scheme.

[14]

The key town planning questions that were framed by Stuart McGurn, who gave evidence on behalf of the applicant, were characterised as follows:
- Is the proposal consistent with the statutory provisions and policy objectives of the Bayside Planning Scheme?
- Does the proposal respond appropriately to the opportunities and constraints presented by the site?
- Will the proposed dwellings provide a high standard of amenity for future occupants without a significant affect on the amenity of the surrounding area?
We agree that it is necessary to assess whether the proposal is consistent with the statutory and policy objectives of the planning scheme, although we take a less restricted view of what is relevant in this respect than Mr McGurn.
In terms of residential objectives, there is no question that the site is suited for residential development. However, we are not persuaded that the prospect of an additional 5 dwellings (on top of the 21 already approved) is, in itself, a strongly persuasive reason for approving this amendment. Simply because this area is identified as a residential opportunity area in the planning scheme is not enough, in our view, to justify the proposal. The existing permit achieves a substantial increase in residential density whilst maintaining the cultural identity of Khyat's Hotel. So in terms of opportunities, the residential opportunity has already been achieved.
Vibrant and sustainable communities require a balance of facilities to serve the residential population. The development proposal that was approved in 2001 represented a balance between new residential development and retention of the existing hotel building and use. It drew very little public opposition (compared to the present proposal). Most of that was focused on issues such as car parking[3], the design and height of the new building, and amenity impacts on adjoining properties. In 2006, the Tribunal again considered this proposal in the context of an application to extend the permit[4]. Notwithstanding some recent changes to the Bayside Planning Scheme[5], Justice Morris found that the proposed development of the land with 21 apartments gave effect to council's objectives for a residential opportunity area and that the changes which had occurred to the planning scheme and to planning policy since the permit was initially granted, did not militate against the extension of time to start the development.[6]
We have no concerns that the proposed dwellings would not provide a high standard of amenity for future occupants. We find that they would not have a significant effect on the amenity of the surrounding area save for the change that would occur to the neighbourhood character. In our view, this is the critical issue.
Fundamentally, this case is about protection of neighbourhood character and heritage values. Khyat's Hotel forms part of what is known as the Brighton civil precinct.[7] The Brighton civil precinct consists of the Brighton Town Hall, Brighton Court House, Council Chambers, Library and formal gardens and St Cuthberts Church on the south side of Wilson Street, and the Brighton Police Station and Khyat's Hotel opposite on the north side of Wilson Street.
Creating urban environments that have an easily recognisable sense of place and cultural identity is an important objective of the State Planning Policy Framework (SPPF) - see clause 12.05.
Within the Local Planning Policy Framework (LPPF), overarching goals of the Bayside Planning Scheme are:[8]

[19]

Throughout clause 55, there is constant reference to neighbourhood character and the need to ensure that the design respects the existing neighbourhood character or contributes to a preferred neighbourhood character.[9]
The Tribunal which granted the permit clearly found that the design of the proposal would not create any unreasonable impacts on neighbourhood and streetscape character.[10] This finding was made in the context of a proposal that retained the front portion of the hotel. The Tribunal acknowledged that the character of the immediate vicinity of the subject site had a different scale and context to the neighbourhood character of the domestic scale of surrounding residential areas. It was into this streetscape and built form context that the proposed apartment building had to fit. On this issue, the Tribunal was of the view that "design of the review proposal would make an appropriate transition between the large scale non-residential buildings, including the harder edged vertical facades of the hotel, and the residential dwellings in Wilson Street."[11]
We are now faced with a proposal to alter the streetscape and built form context that the previous Tribunal was concerned to ensure the development proposal would fit into. We are considering an amendment to a proposal that retained an important aspect of the existing streetscape and built form context in the shape of the hotel. Whilst we agree with Mr McGurn that the built form context now also comprises the 21 apartment development already approved under the permit, it still includes the existing hotel as an integral aspect of the built form context. We therefore consider it is most important to explore the effect that removal of the hotel will have on the existing built form context, which is what establishes the neighbourhood character of the area. It is also important to consider the effect of its removal on other values.
Thus, in response to the questions posed by Mr McGurn, we consider the existing proposal already responds adequately and appropriately to the opportunities and constraints of the site. Increasing the number of apartments will mean taking greater advantage of the site's opportunities but at the expense of the 'constraint' that Khyat's Hotel represents.
We consider that the issues surrounding the retention or otherwise of Khyat's Hotel raise more complex issues of planning policy than identified by Mr McGurn. In deciding whether to amend the permit, we believe that the following key issues need to be addressed.
- Can the Tribunal refuse to allow demolition of the hotel in the absence of a Heritage Overlay?
- What weight should be given to the volume of objections?
- What social, heritage or neighbourhood character values does Khyat's Hotel have?
- Would demolition of the hotel result in a loss of these values?
- What contribution does the replacement building make in urban design terms?
- Do the urban design values of the replacement building outweigh any loss of social, heritage or neighbourhood character values?
- Will retention of the hotel building safeguard the social significance of Khyat's Hotel.

[21]

There is no Heritage Overlay applying to Khyat's Hotel, therefore there is no direct control over demolition. Theoretically, the applicant could demolish the hotel at any time without a planning permit. However, the application currently being considered is an application to amend an existing permit. The development proposal, which is allowed by this permit, includes retention of the front portion of the hotel. Under the permit, the development cannot proceed without its retention. If the hotel building were demolished without amendment of the permit, it would mean a new permit for a new development scheme would need to be considered.
In our view, we are entitled to consider whether this element of the proposed scheme should be changed as part of our consideration of the application to amend the permit. Indeed, we cannot avoid considering whether the hotel should be demolished and replaced by a new building because this is the essence of the change sought.
We do not consider that we are bound to agree to the demolition simply because there is no demolition control under the planning scheme or that our task is simply confined to deciding whether the proposed new building is acceptable in urban design or neighbourhood character terms.
The Khyat's Hotel site is a large site offering excellent opportunities to achieve increased residential densities in an area recognised within the planning scheme as a residential opportunity area[12]. When planning for the comprehensive redevelopment of such sites, good planning principles dictate that important features contributing to the neighbourhood character, heritage and cultural identity of an area are retained and incorporated into the new development design. Thus it is common for significant trees or buildings or other features of a site to be retained and for conditions in permits to protect them, even though they may have no formal planning protection.
The fact that a building could be demolished tomorrow may be relevant in some cases. However, the emphasis on the protection of neighbourhood character and cultural identity throughout the planning scheme means that in certain circumstances it is important to retain significant elements contributing to the character of a place, not just replicate or interpret a character through totally new development. Judgements will need to be made based on the facts of each case. In our view, Khyat's Hotel has a particular significance, which makes it appropriate to consider whether the existing built form (or at least of the front portion) should be retained as part of the overall development scheme as a means of protecting neighbourhood character and cultural identity.
We consider that the approved design under the existing permit exhibits the good planning principles we have referred to above. The rear portion of Khyat's Hotel will be demolished but the historic front section will be retained. A suitable balance has been struck between facilitating new residential development and retaining an important feature contributing to the existing sense of place and cultural identity of Bayside. As we shall discuss later, these are important objectives within the planning scheme. We must decide whether the balance in achieving the various planning objectives, which is represented by the existing permit, should be changed and whether the new scheme represents a better net community benefit.
For these reasons, we consider that we can, if appropriate, refuse to amend the permit, which requires the front portion of the hotel to be retained. This would effectively mean refusing to allow the hotel to be completely demolished, even though there is no demolition control in the form of a Heritage Overlay over the hotel.

[32]

In this passage, the Court clearly identifies that it is the provisions of the Gaming Regulation Act 2003 that make these subjective perceptions of community members about their community relevant. The Planning and Environment Act 1987 establishes a different framework and a different set of considerations. We are not persuaded that 'social impact' within the meaning of the Gambling Regulation Act 2003 and as interpreted by the Court of Appeal in the Romsey Hotel case is necessarily the same as 'significant social effects' within the meaning of the Planning and Environment Act 1987.
Whereas the Gambling Regulation Act 2003 is clearly concerned with the subjective perceptions of community members, matters which have been held to be relevant social effects under the Planning and Environment Act 1987 have tended to be more objective and evidenced in more tangible ways. For example, they include things like whether proposals -
- generate demand for increased community facilities and services;
- provide adequate facilities and services;
- meet needs for facilities and services already known to be deficient;
- improve or reduce accessibility to social and community facilities;
- provide greater or lesser choice in housing, shopping, recreational and leisure services;
- improve or reduce safety for people;
- meet the needs of targeted groups, such as aboriginal communities, youth, unemployed, aged, disabled etc.
The emphasis tends to be on 'community' rather than 'individual' social effects. There also needs to be a connection between the social effect and the use or development of the land: it is not about considering the likes or dislikes of people for the proposed use or development. Thus the Tribunal has not considered relevant objectors' views about the religion, ethnicity or socio economic status of people who will use a particular development. It has repeatedly said that aversion to a proposal that is otherwise a lawful activity on moral grounds is not a relevant social effect.[17]
The need for some objective link between a proposed use or development and an alleged social effect was discussed by the Tribunal in Johnson v Greater Shepparton CC[18]. This was a case involving an adult sex bookshop, which had generated considerable local opposition on the basis of its potential social and economic effects on the community. The Tribunal said:

[53]

Neighbourhood character is essentially the combination of the public and private realms and the way these come together to give an area its own particular character.
The scale of the buildings in the Brighton civil precinct, their disparate architectural forms, their strong street presence and clear non-residential function set them apart from the domestic scale of surrounding residential areas. Khyat's Hotel holds its own in this context. Despite its alterations over the years, it maintains the form of a traditional 19th century hotel building and its public character.
We consider that the dominant presence of Khyat's Hotel in this streetscape, adjacent to the police station and opposite the Town Hall, mark the intersection of Wilson and Carpenter Streets as a significant intersection. The neighbourhood character values of Khyat's Hotel derive from its physical form, its absence of setback, the contribution it makes to this intersection, and its role in establishing the public or civil character of the broader Brighton civil precinct.
The Neighbourhood Character Policy in the Bayside Planning Scheme "builds on the objective of Clause 21.05-3 of the Bayside MSS by ensuring that development complements and respects the existing and desired future character of residential areas" [29].
Khyat's Hotel is included in Precinct B2 in the Bayside Neighbourhood Character Policy. This is a large residential area where the objective of the precinct is to "encourage the retention of dwellings that contribute to the valued character of the Precinct in the design of development proposals."
However, is policy[30] to take into account:
- The extent to which the characteristics of the built and natural environment in the immediate vicinity of the site may determine a preferred future character that is different from that applying to the remainder of the precinct in which the site is located.
- Whether the site is located within a residential opportunity area as shown on the Strategic Framework Plan of the Municipal Strategic Statement and the extent to which this may alter the relevance of the design responses to consideration of the proposal.
We consider that the preferred future character for Precinct B2 is more relevant to the predominant residential component of the precinct than to the Brighton civil precinct, even though it falls within Precinct B2. We consider the Brighton civil precinct has a quite different neighbourhood character to the rest of the residential component of the precinct. The neighbourhood character value of Khyat's Hotel (or any replacement building) should not be judged by reference to the preferred future character for Precinct B2, but by reference to the character of the civil precinct itself and the fact that this site is within a residential opportunity area.
The council agreed with this approach.
Ultimately, any policy should be applied having regard to the objectives it seeks to achieve. In this case, we consider that the most relevant objective is to "retain and enhance the identified elements that contribute to the character of the area."[31] Khyat's Hotel is such an element.

[56]

Craig Czarny gave evidence on behalf of the council about urban design. He considered that the proposed permit amendment constitutes a substantial and unacceptable change to the approved scheme, resulting in an adverse neighbourhood character and urban design outcome. Under the existing permit, the proposed apartment building was subordinate to the traditional Khyat's Hotel. Under the amending proposal, a replacement building on the hotel's footprint would compromise the important relationship between traditional buildings within this key civil precinct and undermine the integrity and character of the Wilson Street streetscape.
If we leave aside the issue of demolition and consider the replacement building on its merits, we agree with Mr Czarny that the proposed design of the new building is too homogenous and that architecturally, there should be a point of departure for the hotel site. However, we disagree with him that any new building on the hotel site should have no front setback.
The front of the new building is set back from the street in a staggered arrangement, although the closest element next to the police station still sits slightly forward of it. There was considerable discussion at the hearing about what would be an appropriate setback for the new building.
It is common ground that the hotel building is not significant on aesthetic grounds. Rather, the hotel is significant in the hearts and minds of the community as a 'place' and for what it has provided in social terms for nearly 150 years inside its four walls - a meeting place and focus for community gatherings. The proposed siting of the replacement building on the front boundary, forward of the police station is, in Mr Czarny's view, a means of replicating the familiar location of the hotel building as an external and tangible expression of its physical importance to the community.
But in many respects this misses the point about the hotel's significance. To site the new building on the boundary would, in our view, only mock or insult the memory of the place and what has occurred inside its four walls over many years. The hotel's significance cannot be evoked simply by siting the new building on the boundary. Symbolically, retention of the existing external fabric, even with a different use, is necessary in order to salvage something of the place's significance and the memories it evokes.
In our view, it does not matter that the existing hotel is so prominent from many vantage points within the streetscape. Perhaps its prominent siting relative to the police station, obscuring it from the west, is analogous to its importance to the community - despite the greater aesthetic significance of this neighbouring building.
However, if the existing building is removed, we agree with Mr McGurn that the new building should be subservient to the police station, which is of recognized heritage significance and covered by a Heritage Overlay. There is clear policy support for this position. These policies are based primarily upon the visual and aesthetic significance of heritage places and the relationship of new buildings to them. It is appropriate that the new building is assessed against these policies by way of visual appraisal taking into account streetscape and neighbourhood character considerations, including the heritage elements of the precinct.
Mr McGurn proposed various setbacks and modifications, but even with them, we consider the built form response would not be acceptable. We consider that:
- The new building is too homogenous and linear in form when combined with the approved building. It is an uncharacteristic response taking into account the siting and proportions of other buildings in the area.
- The design detailing of the façade is poor and the form and massing is not characteristic of the other significant buildings in the immediate vicinith. The overall design accentuates the horizontal too much compared to the strongly vertical patterns found within the police station and Town Hall.
- The building seems to have been added as an afterthought to the original design concept rather than forming an integral part of it. The approved building around the hotel site and the small size of the lot are constraints to which this proposal has not adequately responded. We note that nearly 20% of the apartments are to be contained on a portion of the site that only comprises around 10% of the total site area.

At a glance

Court

Decision date

Source

Judgment (90 paragraphs)

Parties

Cases Cited (3)

Minawood Pty Ltd v Bayside CC (includes Summary) (Red Dot) [2009] VCAT 440 (25 March 2009)