Victorian Civil and Administrative Tribunal|2002-07-29

North & West Melbourne Association Inc v Melbourne CC [2002] VCAT 485 (29 July 2002)

PLANNING AND ENVIRONMENT LIST Application for Review o.P367/2002

Application for Review under section 82 Planning and Environment Act 1987, Mixed Use zone, Heritage Overlay, Clause 19.03, policy framework, demolition, development for retail and residential use, internal amenity considerations, car parking and access.

Applicant for Review North and West Melbourne Association Inc& Ors

Subject Land 140 - 164 Peel Street, North Melbourne

MEDIUM NEUTRAL CITATION [2002] VCAT 485

The decision of the responsible authority is affirmed. A permit is granted and directed to be issued for the land at 140 - 164 Peel Street, North Melbourne

The demolition of a building and the construction of a building under the Heritage Overlay , the use of the land for the purpose of shops, the construction of dwellings, buildings and works associated with a section 2 use, the reduction in the provision of car parking and a reduction in the requirement for the provision of loading and unloading facilities.

1. Prior to the commencement of the development hereby permitted the applicant must submit to the Responsible Authority three copies of plans drawn to scale generally in accordance with the plans substituted at the hearing of the Victorian Civil and Administrative Tribunal on 28 May, 2002, but amended to show;

(a) The removal of the timber batons at ground floor level fronting Little Cobden Street adjacent to units B.1 to B.5 inclusive.

(b) Storage facilities for individual dwellings provided generally in accordance with the plan tabled at the Victorian Civil and Administrative Tribunal on 13 June, 2002.

(d) Centralised bin storage area designed to accommodate 660 litre bins.

2. Prior to the commencement of the development, the permit holder must prepare a construction management plan indicating a works program, with the objective of minimising the impact of construction works upon the adjoining properties, to the satisfaction of the responsible authority. The plan must specify (but not be limited to) a dilapidation survey of surrounding buildings, the means of reducing impact (at the cost of the land owner) of dust, noise, vibration and the like, upon adjoining properties and hours of construction.

3. The developer and its builders shall use all reasonable care to undertake the construction activities associated with the project in a manner which ensures that clear access via Little Cobden Street to adjacent properties is maintained at all times, to the satisfaction of the responsible authority.

4. The use of any land or building or part thereof as shown on the endorsed plan(s) must not be altered or modified without the prior consent of the Responsible Authority.

5. 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, doors, fences and paying, (including car park surfacing), outbuildings and structures.

6. Glazing materials used on all external walls must be of a type that does not reflect

more than 15% of visible light when measured at an angle of 90 degrees to the glass surface, to the satisfaction of the Responsible Authority.

7. A scheme for landscaping and planting in connection with the proposed development must be submitted for the approval of the Responsible Authority before development on the site commences and the agreed scheme must be implemented within six months of the completion of development, or as otherwise may be agreed with the Responsible Authority and the area(s) concerned must be subsequently maintained to the satisfaction of the Responsible Authority.

8. The eight "tenancies" GR.1 - GR.8 as illustrated on Plan No. 0178 TP07 C must be used for shops.

9. The in-tandem car spaces must be allocated to two bedroom dwellings.

10. All garbage and other waste material must be stored in a well ventilated area set aside for such purpose to the satisfaction of the Responsible Authority.

11. 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.

12. Signage or a flashing warning device shall be installed at the exit point into Peel Street to alert pedestrians of exiting vehicular traffic and vice-versa.

13. The design of the carpark shall be safe, convenient and non-discriminatory for people with disabilities. Disabled parking spaces shall be provided to the satisfaction of the Responsible Authority.

14. The design of all parking spaces must be to the satisfaction of the responsible authority.

15. Bicycle parking facilities shall be provided at a minimum rate of one bicycle parking

16. The loading and unloading of vehicles and delivery of goods to and from premises

must at all times take place within the curtilage of the site where practical except with the consent of the responsible authority.

17. Waste storage and collection arrangements shall be fully specified and must be to the

18. The positioning of any proposed boom gates, card readers and any other control equipment shall be specified and designed to the satisfaction of the responsible authority.

19. No vehicle shall reverse into or out of the site.

20. The owner of the subject land shall not be permitted to alter existing street levels in Peel Street, Meeks Lane or Little Cobden Street for the purpose of constructing a new vehicle crossings or pedestrian entrances without first obtaining approval from the Responsible Authority - Council's Group Manager - Engineering Services.

21. The owner of the subject land shall construct all necessary vehicle crossings and demolish all unnecessary vehicle crossings adjacent the subject land in accordance with the plans and specifications first approved by the Responsible Authority - Council's Group Manager - Engineering Services.

22. The proposed canopy over Peel Street shall be set at a minimum distance of 750mm

from the face of kerb and shall have a minimum clearance of 3.0 metres from the existing footpath surface to the underside of the canopy.

23. The carpark entrance shall be designed such that the crossing from Peel Street shall provide a pedestrian refuge having a minimum width of 1.2 metres between Meeks Lane and the new crossing to the satisfaction of the responsible authority.

24. The owner of the subject land shall construct a stormwater drainage system for the development at no cost to Council and make provision to connect this system to Council's underground stormwater drainage system and, where necessary, upgrade Council's system to accept the discharge from the site in accordance with plans and specifications

25. All necessary approvals and permits are to be first obtained from Council and the works performed to the satisfaction of the responsible authority.

26. Vehicular access to Peel Street must be limited to one crossover.

27. The proposed crossover on Peel Street must be restricted to left-in/left-out

28. At no cost to VicRoads and to the satisfaction of the responsible authority, the proposed crossover on Peel Street must be constructed such that it is at least 6.4 metres wide at the property line and for at least 6.0 metres into the car park. The width of the proposed crossover between the property line and the kerb line must be a minimum of 5.2 metres to accommodate the construction of a pedestrian refuge island between the the proposed crossover and Meeks Lane. The proposed crossover must have a 1.0 metre clearance from any fixed objects. Prior to the commencement of any works on site, plans showing the details of the proposed crossover must be submitted for approval to Vic roads.

29. At no cost to VicRoads, the developer shall be responsible for the removal/relocation of any trees, road furniture or other underground services that may be required in accommodating the new crossover on Peel Street.

30. At no cost to VicRoads, any existing redundant crossovers on Peel Street shall be

removed and the footpath and kerbing reinstated to the satisfaction of the

31. There shall be no gate or obstruction to the movement of vehicles within 12.0 metres

of the kerb line of Peel Street into the proposed underground carpark.

32. Any card reading device which may be required to operate the door/gate for the underground carpark on Peel Street shall be located at least 5.0 metres back from the property line of Peel Street

33. The maximum slope of the proposed crossover at the property line shall be 1 in 16 for at least the first 5.0 metres into the underground car park.

34. No advertising signs shall be erected, painted or displayed on the land without the

permission of the Responsible Authority unless in accordance with the exemption

35. 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 the development is subdivided, to the satisfaction of the Responsible Authority.

36. All service meters must be located in front of the flats/units with easy pedestrian

37. Vehicles under the control of the developer during the construction period shall not obstruct other vehicles or interfere with traffic flow in Little Cobden Street.

38. Prior to the commencement of development, a Certificate of Environmental Audit must be issued for the land or an Environmental Auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Section 57AA(5)(b) of the Act that the environmental conditions of the land ate suitable for the proposed use. A copy of the, Certificate or statement shall be provided to Council prior to the commencement of development. All costs associated with obtaining this Certificate shall be borne by the applicant.

39. The time for the commencement of the development hereby authorised is, pursuant to Section 68(1) 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.

Ms A Williams appeared on behalf of the Applicant for Review, the North and West Melbourne Association

Mr P Hirst appeared on his own behalf and Mr D Briggs appeared on behalf of Trans Australia Music Pty Ltd.

Mr R Harvey, town planner, appeared on behalf of the Responsible Authority.

Mr T Nguyen, Planning Engineer, appeared on the second day of the hearing on behalf of the Victorian Roads Corporation

Mr S Morris QC instructed by Mr A Preece, appeared on behalf of the permit applicant.

1. This is an Application under Section 82 of the Planning and Environment Act 1987 ("The Act") brought by the North and West Melbourne Association Inc to review a decision by the City of Melbourne ("The Council") to grant a permit in application no.TP01/1274 .

2. Prior to the commencement of the hearing and following the circulation of amended plans which the permit applicant intended to apply to have substituted for the application plans, Mr P Hirst and Mr D Briggs made an application under Section 60 of the Victorian Civil and Administrative Tribunal Act 1998 to become parties to the Application for Review

3. Following an objection from Mr Morris QC to both Mr Hirst and Mr Briggs being made parties to the Application for Review, Mr Hirst amended his application to be made a party and sought the leave of the Tribunal to make a submission. There was no objection to Mr Hirst's application and I granted his request in accordance with section 98 1 (c) of the Victorian Civil and Administrative Tribunal Act 1998, which enables me to inform myself on any matter as I see fit.

4. Mr Morris's objection to Mr Briggs being made a party to the Application for Review was based on a submission that while Mr Briggs had been an objector to the planning permit application he had not made an application to review the Council's decision to issue a Notice of Decision to Grant a Permit, and had only sought to be made a party following the circulation of amended plans. It was Mr Morris's submission that the amended plans incorporated minor alterations to the original proposal and the changes had no material affect on Mr Briggs. Mr Morris submitted that unless Mr Briggs could demonstrate that the amended plans did have an impact beyond the original plans, it would be inappropriate for Mr Briggs to have conferred upon him the rights of a party to this Application. Mr Morris advised that he did not object to Mr Briggs making a submission to the Tribunal as a person who is affected by the proposal.

5. In response to a question from myself, Mr Briggs acknowledged that the amended plans did not change the nature of the proposal beyond that of the original plans and he advised that he did not commence an application to review the Council's decision because he was interstate at that time.

6. Having regard to Mr Brigg's acknowledgment that the changes to the original application plans did not change the affect of the proposal beyond that of the original plans, it was my view that it was inappropriate for Mr Briggs to take advantage of the circulation of amended plans to seek to become a party to this Application for Review, having failed to seek a review of the Council's decision in the first instance.

7. I advised however that I was prepared to allow Mr Briggs to make a submission also in accordance with section 98 1 (c) of the Victorian Civil and Administrative Tribunal Act 1998.

8. Also at the commencement of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, Mr Morris requested the Tribunal to amend the application for permit by substituting revised plans for those which had originally accompanied the application.

9. Copies of the revised plans had been forwarded to all parties under the cover of a letter dated 29 April, 2002, detailing the changes and outlining the permit applicant's intention to seek approval for their substitution.

10. The nature and extent of the changes outlined in the aforementioned letter included:

"* Reconfigured parking layout of Basement 2 floor plan due to relocation of storage lockers away from the back of the tandem car spaces. This has resulted in a net decrease in the number of storage lockers in this location by four.

* Pedestrian access provided to each of the five units on the Basement 1 level direct from the car park.

* A minor decrease (0.7 metres) in the setback of Units B1 to B5 inclusive from Little Cobden Street frontage.

* Revised internal layout of many of the apartments such that all bedrooms in the two bedroom units will contain an external window and receive direct natural light. All single bedroom units that do not have an external window into the bedroom contain large sliding doors which will allow the bedroom to be opened up to the main living area.

* The inclusion of a small recess in the southern facade to provide a source of light to bedrooms windows with in the development.

* Increase in the number of two bedroom units from 24 to 35, and an associated decrease in the number of single bedroom units from 30 to 19.

* Minor alterations to the articulation of the facade of the building, to reflect internal layout changes and present correct graphical representation of the materials and finishes."

11. There was no objection to the substitution of these plans. Being also of the opinion that such substitution was appropriate, I made the amendment in the manner requested.

12. It is proposed to construct a four storey building (three levels above the ground level) plus a basement and semi basement for the purpose of providing 54 dwellings and 8 shops. A total of 91 car parking spaces are also proposed to be provided within the basement levels, accessed via a single driveway off Peel Street located toward the northern end of the site.

13. The building is proposed to be constructed to the northern, southern and western boundaries at the lower levels, with progressively increasing setbacks at the upper levels. The design of the proposed building is contemporary in nature with the recessed upper levels contributing a design described by Mr Harvey as having "a horizontal layered emphasis". Material and finishes include a mix of pre cast concrete panels, cement render and zinc panel cladding. Timber batons are employed at the lower levels and glazing is provided in a mix of clear and translucent glass.

14. Mr Harvey provided the following detailed description of the use and layout of each of the levels in the proposed building in his written submission, and I adopt that description;

"* Basement (partial ground level to Cobden Street) Five single bedroom apartments are proposed fronting Little Cobden Street as well as having access to the basement car park. The apartments are approximately 60 sq m area, and each have a 18.5 sq m terrace area fronting Little Cobden Street. The area adjacent to the terrace is a living/dining area with a single bedroom, bathroom and study nook at the western end, abutting the car park area. Note that each bedroom has a floating and open splay access to allow penetration of light. This is a technique used on other floors of the development.

* Ground level - The remaining units have a shared, secure foyer entry from Peel Street, from which both stairs and a central lift well provide access to the basement car parking below and the apartments above. A central corridor provides access to the apartments on each level.

At ground level 10 apartments are proposed setback approximately 4.25 metres from Little Cobden Street. Four double bedroom units are proposed. Four single bedroom units at the southern end of the building (above the lower units) have a balcony facing east (approximately 5.5 sq m) and the other units have a larger terrace area facing east (approximately 20 sq m).

* First floor - At first floor level 16 apartments are proposed (12 x 2 br, 4 x 1 br), with one row facing Peel Street and the other facing Little Cobden Street, separated by a central corridor. Apartments facing Peel Street have a recessed terrace area generally of between 14-20 sq m. The built form to Little Cobden Street is set back 7.86 metres with terrace areas along this aspect of approximately 11-2 sq m.

* Second floor - At second floor level 15 apartments are proposed (12 x 2 br, 3x 1 br), of similar configuration to first level, save that the building is setback from the southern boundary and the area used for terraces. Terraces and balconies of various sizes ranging from 7.5 -33 sq m are proposed. The built form to Little Cobden Street is set back 7.86 metres.

* Third floor - At third floor eight (8) 2 bedroom apartments are proposed, and the built form is further recessed from all boundaries.

The greater setback areas at this level are used for large terraces ranging from 17-84 sq m."

15. The review site is located on the east side of Peel Street, between Queensberry Street and Princess Street. Little Cobden Street which is a local street with a 3.5 metre wide pavement and which runs in a north/south direction off Princess Street, forms the eastern boundary of the site. Meeks Lane which has a pavement width of 3.2 metres forms the northern boundary of the site.

16. The site is currently occupied by a petrol filling station and associated workshop buildings. The site is regular in shape with a 60.45 metre frontage to Peel Street, a maximum depth of 33.46 metres and an area of 2,016 square metres.

17. Mr Harvey provided the following useful description of the site and its local context which I find to be appropriate;

"There are currently two vehicular access points from Peel Street, and access is also directly available from the rear, east boundary of the site abutting Little Cobden Street. Abutting the site on the south-western corner is a two storey commercial building, built to the common boundary and fronting onto Peel Street. The rear of another two storey building with a frontage to Princess Street also abuts the site. At the south-eastern corner is a single storey commercial building used as an office and for storage) also fronting Princess Street, the service yard of which abuts the subject site.

On the east side of Little Cobden Street are 6 two-storey brick townhouses of recent construction and car parking facilities for business's fronting Cobden Street.

On the north side of Meeks Lane are a mixture of single and double storey commercial buildings which front onto Queensberry Street (including 333 & 335 Queensberry Street).

Peel Street is a wide carriageway, divided by a dedicated tram median flanked by a boulevard of established trees. The western side of Peel Street, opposite the subject site, contains a mix of single and double storey residential and commercial buildings. The south west corner of Peel and Queensberry Streets is occupied by a two storey hotel (Robert Peel Hotel).

The majority of buildings in the precinct are built to the street boundary. Residential dwellings are generally two storey, however there are some three and five storey residential buildings within close proximity of the site. The heights of commercial buildings in the area vary a little more, with some three storey buildings on the north side of Queensberry Street and four storey buildings further north along Peel Street.

The built form and land use patterns in vicinity of the site are truly 'mixed' and represented by industry, retail, office, service and residential uses. Newer development in the locality appears to mostly be for residential purposes including apartment buildings.

The subject site is well serviced by public transport, with trams in Peel Street and Elizabeth Street. The site is also well located with regard to shops, being 700 metres from Errol Street and 150 metres from the Queen Victoria Market, as well as a wide range of recreation, entertainment and community facilities in close proximity."

18. The review site is zoned Mixed Use under the Melbourne Planning Scheme. The purpose of the zone is, in addition to implementing the State and Local Planning Policy Framework;

To provide for a range of residential, commercial, industrial and other uses which

complement the mixed-use function of the locality.

To encourage residential development that respects the neighbourhood character.

19. A dwelling is a section 1 permit not required use in the zone. A permit is required under section 32.04-5 to construct more than two dwellings on a lot. The proposal is exempt from meeting the requirements of Clause 55 because it is four or more storeys.

20. A shop is a section 2, permit required use in the zone. A permit is required to construct a building or construct or carry out works for a use in Section 2, pursuant to Clause 32.04-7.

21. A Heritage Overlay (HO3) also applies to the review site. The purposes of the Overlay are;

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

To conserve and enhance heritage places of natural or cultural significance.

To conserve and enhance those elements which contribute to the significance of heritage places.

To ensure that development does not adversely affect the significance of heritage places.

To conserve specifically identified heritage places by allowing a use that would otherwise be prohibited if this will demonstrably assist with the conservation of the significance of the heritage place.

22. A permit is required to demolish a building, construct a building and to construct or carry out works, under Clause 43.01-1. Decision guidelines are at Clause 43.01-5.

23. Peel Street is included in a Road Zone Category 1.

24. A permit is required to reduce or waive the number of car spaces required to be provided in accordance with the table to Clause 52.06-5. The application of the car parking rates in the said table to the proposal generates a requirement for 159 spaces. A total of 91 spaces are proposed to be provided.

25. Clause 52.07 imposes requirements with respect to the provision of loading and unloading facilities. A permit is require to vary or reduce these requirements.

26. With respect to the State and Local Planning Policy Frameworks, the following clauses are relevant;

* Clause 22.05 Heritage Places Outside Capital City Zone

* Clause 22.13 Development and Land Use in the Mixed Use Zone.

27. I was also referred to Amendment C20 the Melbourne Planning Scheme which at the time of the hearing had been exhibited and the subject of a Panel report which the Council had at that time not considered. The Amendment proposes a Design and Development Overlay for the area within which the review site is located, in which a preferred height of 8 metres and a maximum height of 14 metres is specified. The Amendment also proposes to include a document titled North West Melbourne 2010 as a reference document in the planning scheme. I was advised that the Panel appointed by the Minister to consider Amendment C20 had recommended against both the specification of maximum building heights and the inclusion of the North West Melbourne 2010 document in the planning scheme.

Council Consideration and the Application for Review

29. The planning permit application was received by the Council in November 2001, and notice of the application was required to be given. Five objections to the application were received.

30. The application was also the subject of internal referral to a number of the Council departments including Urban Design and Traffic Engineering. The application was broadly supported by the Urban Design Department, subject to the submission of additional information, while Traffic Engineering expressed reservations about the adequacy of the parking provision, layout and design of the car park and vehicular access arrangements .

31. The application was referred to Vic Roads which did not object to the application subject to the inclusion of a number of conditions relating to access arrangements to the site from Peel Street.

32. The application was considered by a Council delegate and an officer recommendation to grant a permit subject to the inclusion of 39 conditions was adopted.

33. An application to review the Council's decision was subsequently commenced by the North and West Melbourne Association on the following grounds;

i) Inadequate car parking, storage, and loading facilities to service the development.

ii) Inadequate amenity for a number of dwellings, including those with borrowed light and ventilation.

34. At the review hearing all parties and those persons making submissions, tabled and read from written submissions and supplemented these with oral argument, or made oral submissions.

35. Mr Morris QC called Mr S McGurn, town planner of Fulcrum Town Planners Pty Ltd, and Mr S Hunt, traffic engineer of Grogan Richards Pty Ltd, to give evidence. Each witness presented a report and gave evidence and were made available for cross examination.

36. Various plans, photographs and other documents were tendered, either as attachments to written submissions and reports, or as separate items. The evidence submitted in documentary form, together with the written submissions, have been retained on the

38. Th issues raised in this Application were slightly unusual in the sense that there was broad agreement between the parties that the development of this site incorporating a mix of retail and residential uses is consistent with the outcomes sought to be achieved by the zone provisions and policy framework of the planning scheme. Similarly, there was broad agreement that the form, scale and height of the proposed development represents an appropriate response to the local context and to the heritage place.

39. Having regard to the above, I do not intend to detail my assessment of the proposal with respect to these matters, other than to record my findings that I agree with the submission of Mr Harvey and the evidence of Mr McGurn that the proposal is of an appropriate scale and form and incorporates a mix of uses which accords with the outcomes sought by the State and Local Planning Frameworks of the planning scheme.

40. The principal issues in this Application relate to internal amenity considerations, the adequacy of the proposed car parking and access arrangements, and the adequacy of the proposed loading and unloading facilities.

41. Prior to dealing with these issues, it is necessary for me to record my finding with respect to those matters raised by Mr Hirst and Mr Briggs.

42. Mr Briggs concerns related primarily to the impact of the noise and vibration caused by the construction of the proposed building on the sound recording studio operated by him in a building adjoining the review site. It was Mr Briggs submission that during the construction period, he would be constrained from conducting his business due to the impact of ground borne noise. Mr Hirst expressed support for the proposal but submitted that any approval for it ought to contain conditions preventing future occupants from objecting to any development proposal which Mr Hirst might put forward for his site.

43. In response to Mr Briggs submission, Mr Morris advised that his client would be prepared to accept a permit condition requiring the preparation and approval of a construction management plan, through which Mr Briggs concerns could be addressed. I agree with this submission and I have included a condition requiring the preparation and approval of construction management in the Order.

44. With respect to Mr Hirst's submission, any future development proposal for his site will need to be assessed against the relevant provisions of the planning scheme applying at the time that an application is made and in the event that objections to that proposal are received, the merits of those objections will also need to be addressed at that time. It is inconceivable to me that a condition imposed on a permit for the proposal which is currently before me could seek to limit the right of a future owner or occupant, a right which is conferred by the Act, to object to an application on an adjoining site. To impose such a condition would in my view, contravene most tests of validity for permit conditions.

45. It was Ms Williams submission that the proposal has attempted to maximise the number of dwellings on the site at the expense of the amenity of future residents, and that this is reflected in the fact that 26% of the proposed dwellings are reliant on borrowed daylight and ventilation. Ms Williams presented a very detailed submission in which each of the dwellings which rely on borrowed light and ventilation were identified. These dwellings are predominantly located on the lower levels of the building where, in Ms Williams submission, the reliance on borrowed light and ventilation cannot be justified on the basis that the consequential internal amenity affects cannot be compensated for by, for example, the provision of views.

46. Ms Williams also made reference to a number of decisions of this Tribunal which have dealt with the issues of internal amenity in apartment style buildings, and relied on these decisions in support of her submission that daylight to habitable rooms has been an issue which the Tribunal has;

* Required modifications to proposals to increase daylight access.

* Permitted developments with a small percentage of rooms relying on borrowed light.

* Permitted limited use of borrowed light for temporary accommodation but not in permanent accommodation.

47. In the context of a proposal for a near central city mixed use, retail and residential apartment building, I do not think that it is either essential nor practical to require that all bedrooms in such a development enjoy access to natural daylight in order to achieve acceptable internal amenity standards. In forming a view as to what constitutes an acceptable standard, a level of judgement is obviously required and with respect to those dwelling units which do rely on some degree of borrowed light, my judgement in this matter is informed by the following considerations;

* The reliance on borrowed light is limited to bedrooms only and the balance of the habitable rooms in all of the dwellings enjoy access to natural daylight.

* The proportion of dwellings within the development which rely on borrowed light to a bedroom is 26%, which I do not regard as excessive.

* The layout of the proposed dwellings includes the use of open splays with sliding and glazed panels to all bedrooms relying on borrowed light and this provides the opportunity for occupants to integrate the bedrooms into the living areas or to close them off from the living areas, depending on their own individual preferences and requirements. I consider this layout to be preferable to that of a "bedsit" apartment in which there is no opportunity to isolate the bedroom from the living areas, but which do not rely on borrowed light.

* Each dwelling unit has access to (albeit small) external private open space in the form of a courtyard or balcony.

* Based on Mr McGurns's evidence, the proposal achieves compliance with the relevant requirements of the Building Code of Australia.

* The amenity of the ground and sub basement dwellings would be improved by the removal of the timber screens on the Little Cobden Street frontage. I agree with Mr McGurn on this matter.

48. I also agree with Mr McGurn's evidence that the exercise of judgement on these matters cannot be divorced from my earlier findings that the redevelopment of this site for a mix of retail/residential uses is specifically encouraged by the planning scheme. In this planning context there is I think considerable merit in the proposition put by Mr McGurn that some future occupants of this development will be prepared to sacrifice some elements of internal amenity in return for enjoying the benefits of living in this central location, at a relatively affordable price.

49. I am conscious that the reference to the provision of affordable housing ought not be analogous to the provision of sub standard housing, or that it is used as justification for the provision of sub standard housing. For the reasons which I have outlined above, I do not think that the accommodation to be provided in this proposal can be regarded as sub standard. It is my view that the style of accommodation to be provided will adequately respond to the needs of that sector of the housing market identified by Mr McGurn in his evidence, at an acceptable standard of internal amenity.

50. My findings with respect to these matters are I think, consistent with those of the various Tribunals to which Ms Williams referred. In each of those cases the Tribunal made findings based on the circumstances and merits of each proposal, and these factors varied from site to site. I agree with Ms Williams summary of those findings to the extent that it is clear that the Tribunal has accepted this form of accommodation relying on borrowed day light for bedrooms and where it was considered necessary, has modified proposals to improve internal amenity standards or to limit the proportion of dwellings which are so reliant. I note that the Tribunal in Application for Review no. P50111/2001 Australian Conservation Foundation v. Melbourne City Council & Surrowee Pty Ltd, in granting a permit for 56 Serviced Apartments, limited the number of apartments providing internal moveable partitions to bedrooms, to 25% of the total number of apartments, in comparison with the 26% provided in this application. I acknowledge that the Tribunal in that matter did make a distinction between serviced apartments which provide for short stay accommodation and dwellings which provide for permanent occupation and expressed the view that the internal amenity of the apartments in that proposal would be suitable only for short stays. The Tribunal in that matter however referred to a number of design considerations which led it to form that view, of which access to daylight was only one. Those design considerations which were present in that application are not in my view, present in the current proposal.

51. Ms Williams also referred me to a media release from the Minister for Planning in which the Minister states that it is intended to amend planning schemes so that Clause 55 applies to all residential developments of four or more storeys. Ms Williams submitted that I ought to regard the media release as a seriously entertained planning proposal and the provisions of clause 55 should therefore apply to my consideration of the current application.

52. It is unclear from the information provided to me what form a proposed planning scheme amendment would take to give effect to the Minister's stated intention. It is not clear for example whether it is intended that all or only part of clause 55 would be applied to the assessment of these developments. I note Mr McGurn's evidence in this respect that in his view, it would be difficult to apply several of the standards (for example setbacks) in Clause 55 to a four or more storey mixed use building in a central city location. In these circumstances I am reluctant to give to the media release the weight which Ms Williams submitted that I should. I am bound therefore to apply the planning scheme as I find it and at the present time the planning scheme specifically exempts developments of four or more storeys from assessment under clause 55.

Car Parking Vehicular Access, Loading and Unloading Facilties.

53. It was Ms Williams submission that the magnitude of the reduced parking provision (from 159 to 91) is not justified having regard to the following;

* "On street parking in the area is highly utilised, particularly during market opening days (5 days per week)

* Retail outlets should be provided with 3 car spaces minimum per outlet.

* Each unit should have at least one least one car space.

* It is unrealistic to assume that out of 35 X 2 bedroom units, only 2 will have a second car.

* An under supply of parking will result in occupants seeking Resident Parking permits in an area of saturation".

54. Ms Williams submitted that 106 spaces ought to be provided and noted that this number is the same as that recommended by the Council's traffic engineers.

55. It was Mr Hunt's evidence that, based on car ownership data from the 1996 census, the current proposal would generate a resident parking demand for 57 parking spaces (0.81 spaces per 1 bedroom apartment and 1.19 spaces per 2 bedroom apartment) with a provision for 7 - 11 visitor spaces. Mr Hunt also regarded a provision of 2 spaces per retail tenancy as being more than adequate in terms of accommodating staff parking. It was Mr Hunt's evidence that the proposal would generate a total parking demand of 80 - 84 spaces and that the proposed 91 spaces is more than sufficient. Mr Hunt based his evidence on the following considerations:

* The site enjoys outstanding access to public transport.

* The site enjoys outstanding access to employment, retail, entertainment, cultural and social facilities.

* On street parking is generally "tight" during the operating times of the Queen Victoria Market, but these times do not correspond with peak parking times for visitors to residential uses (mid week evening and Saturday afternoons).

* Customer parking for the retail tenancies will be appropriately accommodated on street, and any provision for customer parking in the basement is unlikely to be utilised.

56. I accept Mr Hunt's evidence and I also endorse his observations that the provision of car parking for developments of this nature in near central city locations, must be considered in the context of the applicable policy framework which seeks to encourage increased levels of activity and residential densities where access to existing infrastructure is available. It seems to me that it is counter productive to the achievement of these policy objectives to require on site car parking to be provided at a level which ignores the outstanding access this site enjoys to existing infrastructure, and which has insufficient regard to the likely car ownership and useage characteristics of future residents of the development.

57. I am satisfied that the proposed provision of 91 parking spaces is a more than adequate provision for a mixed use development of this type and in this location. I also agree with Mr Hunt that the tandem parking spaces ought to be allocated to residents rather than the retail uses because I do not think that customers to the retail uses will utilise parking located in the basement.

58. With respect to the vehicular access arrangements, I am also satisfied that the intent of the conditions sought to be imposed by VicRoads, relating to the width of the access, the provision of a pedestrian refuge and the gradient of the access ramp, are capable of being met by the changes to the plans recommended by Mr Hunt. In particular, I am satisfied that the gradient of the access ramp at 1:16 is acceptable and that 1:20 gradient is not justified having regard to the scale of the development, the traffic volumes, the turnover rate of parked vehicles in the car park and the likely incidence of vehicle queuing.

59. With respect to loading and unloading facilities, Ms Williams submitted that these facilities ought to be provided on site and noted that condition 16 of the Notice of Decision requires loading/unloading to take place within the curtilage of the site. It was Ms Williams submission that the substituted plans do not allow for this condition to be met.

60. I agree with Ms Williams that the substituted plans do not provide for on site loading/unloading, but I think the crucial question for me is whether or not such provision ought to be made.

61. In my view, the changes to the development which would be necessitated by the provision on site loading/unloading facilities, such as those outlined by Ms Williams, are not justified having regard to the relatively small retail component of this development. The use of on street loading/unloading is common within the central and inner suburbs of Melbourne and I do not think that the volume of loading/unloading activity generated by this development will be such that separate facilities ought to be provided. I note that my findings in this respect are consistent with Mr Hunt's evidence.

62. During the course of the hearing a number of matters were raised relating to the conditions contained in the Notice of Decision. All parties made submissions with respect to these matters and these have assisted me in forming my view on them. I do not intend to elaborate on the submissions received other than to record that the changes to the original conditions and the inclusion of additional conditions, flow from the findings I have made and which are outlined above.

63. It follows from the above that the decision of the responsible authority is varied and it is directed that a permit issue in accordance with the attached Order.

Environment Act 1987

Civil and Administrative Tribunal Act 1998

North & West Melbourne Association Inc v Melbourne CC [2002] VCAT 485

At a glance

Court

Decision date

Source

Judgment (177 paragraphs)

North & West Melbourne Association Inc v Melbourne CC [2002] VCAT 485 (29 July 2002)

Parties

Legislation Cited (3)