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[2003] VCAT 1769
appellant. The Council's refusal decision was set aside. The Responsible Authority was ordered to issue a permit subject to the stated conditions, including approved amended plans, materials and finishes, a...
The Tribunal allowed the review of the Council's refusal and ordered a permit for a 69-room student accommodation proposal in existing heritage warehouses. It accepted that the site did not need on-site car parking, mainly because it was well served by public transport and close to educational institutions. It also accepted that the proposal could provide adequate amenity despite concerns about light and outlook, giving substantial weight to retaining the A-graded heritage building. The permit conditions required further detail and controls on matters such as noise, overlooking, management and building services.
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O'Connell Residence Pty Ltd applied for permission to alter and extend existing buildings at 15-19 O'Connell Street, North Melbourne, for use as student accommodation. The application, dated 16 December 2002, also sought a reduction in the standard car-parking requirement ([1]). The site contained a Victorian red-brick warehouse at No. 15, graded “C”, and a four-storey bluestone and brick warehouse at No. 17, graded “A” in the Heritage Places Inventory ([6]).
No linked legislation citations have been extracted yet.
The responsible authority, Melbourne City Council, refused the application on 10 July 2003. Its grounds included concerns about internal amenity, the proposal's height, the absence of on-site parking, overdevelopment, amenity impacts and heritage issues ([5]). The applicant sought review under section 77 of the Planning and Environment Act 1987 (Vic).
The proposal changed during the application process. The room count was reduced from 75 to 69, and the revised proposal met the Design and Development Overlay's mandatory 14-metre height limit ([7]). The Tribunal heard the review on 28 and 29 October 2003. It set aside the Council's refusal and directed that a permit issue, subject to conditions ([53] and Orders).
Those conditions required revised plans and details, including reduced levels, relocated bicycle racks, reflective surfaces in the light court, acoustic treatment, measures to limit overlooking, and concealment of air-conditioning units and other equipment. A section 173 agreement was also required. It was to restrict the building to full-time students at secondary or tertiary institutions, require occupants to leave within three months of completing full-time studies, and require a management plan with a suitably qualified manager available 24 hours a day, seven days a week (Order, condition 3).
The Tribunal's reasons address four principal subjects: building height and floor-to-ceiling dimensions, car parking, internal amenity, and energy rating. The decision turned on the evidence and planning context of this particular conversion proposal.
On height, Council's planner was concerned that compliance with the 14-metre limit had been achieved by compressing floor-to-ceiling heights. He raised practical questions about plumbing and other services in tight floor spaces, and whether those services might reduce bedroom heights further ([21]). The applicant responded that the proposed habitable-room heights were 2.4 metres and that services could be accommodated in adjoining hallways ([23]). The Tribunal considered the response adequate. It found the proposal capable of implementation in accordance with the plans, while emphasising that the permit holder remained responsible for complying with the permit and other controls ([24]). That was an assessment of the evidence before it, not a general finding that similar ceiling arrangements will always be acceptable.
On parking, the Tribunal acknowledged that the proposal provided no on-site car spaces, while the Council's Student Housing Guide called for seven ([10], [25]). It nevertheless considered the proposed use, the site's “outstanding access to public transport” and its proximity to educational institutions. On those grounds, it considered it reasonable to waive the parking requirement entirely ([30]). The decision does not set out a general rule that student housing does not need parking. It gives a site- and use-specific explanation for the waiver.
The most extensive consideration was internal amenity. Concerns included the narrow, 2.1-metre light court, outlook and daylight to bedrooms, overlooking, acoustic privacy, and the limited communal and recreational space ([33]-[39]). The Council's planner considered that many rooms would have a poor aspect and that the light court would provide limited access to sunlight ([35]-[37]). The objector also raised concerns about windows, noise transmission and social and study facilities ([38]-[39]).
The applicant relied on expert evidence about illumination and acoustic performance. The lighting evidence accepted that Bedroom 7 on the ground floor did not receive adequate natural light, while considering that most other bedrooms would have adequate natural light ([41]). The acoustic evidence identified ways to address sound transmission, including appropriate glazing and sealed windows ([42]-[44]). The Tribunal acknowledged the conflict between adapting heritage buildings for a new use and providing adequate daylight in every bedroom ([45]).
Its key conclusion was that greater weight should be given to preserving the A-graded heritage building than to requiring natural light in every bedroom, where light wells and other measures could provide an acceptable level of amenity ([46]). It also relied on the evidence and observations that students' use of bedrooms differed from the use of ordinary flats, that room standards were addressed by the Building Code of Australia and Council policy, and that Council's Health and Building departments had not objected on the relevant grounds ([47]). The Tribunal noted that the Council's own student-housing policy recognised the difficulty of adapting large, older buildings and discussed using light wells and courtyards ([48]). It concluded that, despite the heritage constraints, the proposal incorporated light wells without compromising the building's heritage significance and provided acceptable amenity ([49]).
The permit conditions matter to the result. The Tribunal did not treat every design concern as resolved in the hearing. It required details and controls for acoustic transmission, overlooking, reflective surfaces and building equipment, among other matters. Its conclusion rested partly on the ability to deal with matters of detailed design through conditions ([46] and Order).
The judgment does not purport to alter a statutory rule or announce a general test for all student accommodation proposals. It applies the planning controls and policy material described in the reasons to one application. The provisions specifically identified include the mixed-use zoning, Heritage Overlay HO3, Design and Development Overlay DDO32, and the 14-metre mandatory height limit ([7], [13]). The decision also identifies section 77 as the basis for the review and section 173 as the source of the agreement required by a permit condition.
Before the Tribunal's decision, the Council had refused the application. Its refusal grounds treated internal amenity, height, parking, overdevelopment and heritage as reasons not to grant the permit ([5]). After the review, that refusal was set aside and a permit was ordered, but only with conditions. The outcome therefore changed the decision on this application, not the text of the planning scheme or the legal requirements described in it.
The Tribunal's reasoning gives an example of how heritage conservation and amenity concerns were weighed in this case. It did not say that heritage automatically overrides daylight or privacy. It considered the A-graded building, the proposed light wells, the expert evidence, the Building Code, Council policy and the ability to require design details through conditions ([45]-[49]). Similarly, its parking conclusion depends on the circumstances it identified at paragraph 30, rather than setting out a universal parking exemption for student housing.
The judgment refers to the Council's Student Housing Development and Management Controls but notes that the document was not incorporated into the Planning Scheme ([17]). It also reproduces policy text concerning light to study bedrooms at paragraph 48. The Tribunal considered that material as part of the planning context, alongside the constraints created by the heritage overlay ([48]-[49]). The text provided does not establish any broader change to the status or legal effect of that policy document.
At paragraph 24, the Tribunal said the proposal was “capable of being undertaken in accordance with the application plans”. In plain English, it accepted that the plans could work on the material presented. It did not guarantee that every construction detail would comply. It expressly stated that if the permit holder could not comply, separate approvals would need to be sought and assessed on their own merits ([24]).
At paragraph 30, the Tribunal said it was reasonable to waive the parking requirement “having regard to the nature of the use” and the site's access to transport and educational institutions. This explains why the absence of on-site parking did not prevent a permit in this instance. It should be read alongside the facts about this site and proposal, rather than as a general rule for other student accommodation developments.
The central heritage and amenity passage is paragraph 46. The Tribunal preferred preserving the A-graded building to requiring natural light in every bedroom, where light wells and other means could provide a reasonable level of amenity. In plain English, it considered that retaining the historic building justified accepting some limitations in the design, while requiring design measures to make the accommodation acceptably liveable.
Paragraph 47 explains some of the Tribunal's supporting considerations. It considered how students were expected to use the rooms and noted the Building Code and Council policy on room sizes, light and ventilation. It also noted that the Council's Health and Building departments had not objected on those grounds. These are reasons the Tribunal gave for its assessment, not findings that every student accommodation scheme will meet acceptable standards whenever it complies with the Building Code.
At paragraph 49, the Tribunal concluded that the applicant had incorporated light wells without compromising the building's heritage significance and had provided an acceptable level of amenity. This conclusion follows its assessment of the specific proposal and the heritage constraints identified in the case.
The reasoning is most relevant as an example where a proposal reuses existing, heritage-graded buildings for student accommodation and the reuse creates a tension between heritage conservation and internal amenity. The judgment specifically concerns a site with an A-graded warehouse, a heritage overlay, a proposed light court, and a revised scheme within a mandatory height limit ([6]-[8]).
Its parking discussion may be relevant where a student accommodation proposal seeks a parking reduction or waiver and is located close to public transport and educational institutions. Those were the location and use factors the Tribunal expressly relied on ([30]). The decision does not supply a numeric test for the transport access required or address a different land use.
The internal-amenity reasoning may also be relevant where the evidence identifies limited daylight, outlook, privacy or acoustic performance, but proposes mitigation through light wells, glazing, acoustic measures and planning conditions ([41]-[49]). The judgment indicates that heritage constraints and detailed design controls were important to the Tribunal's assessment.
The facts also show the limits of the comparison. This proposal was reduced to 69 rooms, met the 14-metre height limit, and included proposed light wells. The Tribunal relied on evidence from lighting and acoustic consultants and imposed conditions requiring further details ([7], [40]-[44] and Order). A proposal without comparable evidence, heritage significance, mitigation or conditions would not necessarily be treated the same way. The judgment does not decide that question.
The supplied judgment does not contain any discussion of later cases applying, distinguishing or rejecting its reasoning. Its only other case reference is to Metaxas Architects v Melbourne City Council & North and West Melbourne Association Inc., Appeal P1432/2003, which concerned a different nearby development. The Tribunal mentions that permit as part of the surrounding site's planning context, including a permit for a six-level building on adjoining land ([6]). It does not rely on Metaxas as a legal authority for its conclusions.
Accordingly, later treatment cannot be established from the supplied text. The judgment itself is a VCAT decision, and the material provided does not include subsequent judgments, appeals or citations. Any account of later treatment would require sources beyond this judgment, which are not available here.
The reasons do not provide a general standard for how much natural light or outlook is adequate for student bedrooms. The Tribunal accepted this design in its heritage and policy context, while recognising that Bedroom 7 did not receive adequate natural light according to the applicant's lighting evidence ([41], [46]-[49]). The judgment does not specify how that balance would be approached for a building with a different heritage grading or different light-court design.
The decision also leaves unresolved how far compliance with the Building Code answers planning concerns about amenity. The Tribunal regarded the Code as addressing matters including room size, light, ventilation and noise, and noted the absence of objections from Council's Health and Building departments ([47]). Yet it also imposed conditions addressing acoustic treatment and other design matters. The judgment does not define where the planning assessment ends and other approval processes begin.
The practical feasibility of the compressed floor arrangements was accepted on the evidence available, but the Tribunal did not determine how any later service or construction problem would be resolved. It stated that separate approvals would need to be applied for and assessed on their merits if compliance proved impossible ([24]).
Finally, the order's section 173 agreement required full-time student occupation and management arrangements, but the reasons do not discuss the monitoring, enforcement or duration of those restrictions. Nor does the judgment explain how the detailed condition requirements were subsequently implemented. Those issues cannot be answered from this decision alone.
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Residential Building, Student Accommodation, Parking, Internal amenity, Heritage.
2. The Responsible Authority is ordered to issue the permit which must contain the following conditions:-
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 submitted with the substituted plans (Rev E 15/9/03) at the hearing but amended to show:
a) A plan clearly identifying all those areas of the existing buildings proposed to be demolished.
b) Details of reduced levels (RLs) above the Australian Height Datum, or a temporary benchmark which relates to existing conditions of the site, for all finished floor levels, the tops of all existing and proposed walls and roof structures.
c) Relocation of the proposed bicycle racks from the external wall of No. 17-19 O'Connell Street to adjacent to the proposed security fence in the laneway.
d) The application of smooth and highly reflective wall surfaces of buildings within the light court to improve overall illuminance of the rooms.
e) Details of noise attenuation measures to be included in the design of the walls between units and between units and communal areas to limit noise transmission to 45 STC (Sound Transmission Class) in accordance with part F5 of the Building Code of Australia.
f) Details of measures to prevent overlooking between bedrooms within the development.
g) Details of the location of all air-conditioning units, plant equipment and TV antennae to be reasonably concealed from view from adjoining and nearby streets, laneways and public spaces.
h) Details of the location of any security access to the building, including the location of any intercom system.
These amended plans must be to the satisfaction of the Responsible Authority and when approved shall be the endorsed plans of this permit.
2. A schedule and sample board 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 paving (including car park surfacing), outbuildings and structures.
3. Prior to the commencement of the development, the owner of the land must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987. The agreement must provide the following:
a) the building to be for the exclusive accommodation of students enrolled full time at a secondary or tertiary level educational institution and to be vacated within three months of completion of full time studies;
b) the building to operate in accordance with a management plan to the satisfaction of the Responsible Authority. Such plan must make provision for a suitably qualified full time manager to be available to the site, 24 hours per day, 7 days per week and for the maintenance, cleaning, garbage collection, supervision and security of the site;
c) the owner of the property to be developed must pay all of Council's reasonable legal costs and expenses of this agreement, including preparation, execution and registration on title.
4. The development and use as shown on the endorsed plans must not be altered or modified without the prior consent of the Responsible Authority.
5. 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.
6. All piping and ducting above the ground floor storey of the building shall be concealed.
7. Sufficient garbage storage facilities shall be provided within the property boundary. Garbage facilities shall be to the satisfaction of the Responsible Authority, Council's Group Manager Engineering Services.
8. The Owner of the subject land shall construct a drainage system within the development and make provision to connect this system to Council's stormwater drainage system in accordance with plans and specifications first approved by the Responsible Authority; Council's Group Manager Engineering Services.
9. The Owner of the subject land shall not be permitted to alter the existing footpath/road levels in O'Connell Street for the purpose of constructing new vehicle or pedestrian entrances without first obtaining the written approval of the Responsible Authority; Council's Group Manager Engineering Services.
10. All necessary approvals and permits are to be first obtained from Council and the works performed to the satisfaction of Council's Group Manager Engineering Services.
11. The time for the commencement of the use and development hereby authorised is, pursuant to Section 68(1) and (2) of the Planning and Environment Act 1987, specified as 2 years from the date of issue of this permit and the time for completion of the development is specified as 2 years from the date of such commencement.
The time within which the use and development is to be commenced or the development completed may on application made before or within 3 months after the expiry date of this permit be extended by the Responsible Authority.
Mr T.C. Radisich of Associated Town Planning Consultants. Mr Radisich called evidence from the following witnesses:
Application under S. 77 of the Planning and Environment Act 1987 for review of a decision to refuse to grant a permit.
1. The re-use of the heritage buildings for student accommodation is inappropriate given the resultant substandard internal amenity in respect to access to natural light, visual and acoustic privacy, and the lack of communal areas and facilities.
2. The height of the proposed additions exceeds the mandatory height as stipulated by Design and Development Overlay, Schedule 32 (DDO32) and is contrary to the Design Objectives and Built Form Outcomes of DDO32.
3. The proposal fails to provide any on site car parking to meet the demands of the proposed residents.
4. The proposal will result in an overdevelopment of the site.
6. The proposal does not adequately address the heritage issues.
1. By application dated 16 December 2002, O'Connell Residence Pty Ltd sought permission for :-
Alterations and additions to existing building for use as residential building (Student Accommodation) with reduction in standard car parking requirement.
2. On 8 January 2003, the Responsible Authority requested further information which was supplied in February 2003. The proposal was referred internally to various Departments including Health Services, Building Control and Engineering plus Ms Meredith Gould, Council's Heritage Consultant.
3. Amended plans were submitted which were superseded by further amended plans.
4. The proposal was widely advertised by a direction of the Responsible Authority and two objections received, one from the National Trust and the other from the North & West Melbourne Association Inc.
5. The proposal was recommended for approval by the professional staff of the Responsible Authority and was refused by the Council's Planning Development & Services Committee on 10 July 2003 on the grounds set out above. Prior to the hearing further amended plans were circulated to all parties and were substituted at the hearing without objection from any party.
6. The subject site is located on the west side of O'Connell Street a short distance north west of the Queen Victoria Market. It contains a red brick Victorian warehouse (No. 15: Heritage graded "C") together with a four storey bluestone and brick warehouse (No. 17; graded "A"). Both these gradings are taken from the Heritage Places Inventory. Land to the south (Nos. 9 - 13) is used as an open parking lot for 23 cars. A current planning permit exists to develop this site with a six level building for 40 apartments, convenience restaurant and 36 car spaces. The permit for that proposal was granted by the Tribunal following Appeal P1432/2003 Metaxas Architects v Melbourne City Council & North and West Melbourne Association Inc.; heard 25 and 26 September 2003. A permit has also been issued to develop land further south (Nos. 1 - 7) for 27 student accommodation units. Apartments and a residential building exist to the north of the subject site.
7. Following advertising, the proposal was again amended with the result that the number of rooms was reduced from 75 to 69. The proposal now consists of a ground floor, mid first floor, first, second and third floors. Floor to ceiling heights vary from 3.87m to 3.56m in Nos. 17 and 19 and are 2.44m in No. 15. The proposal, originally greater than 14m in height, now complies with the mandatory height limit of 14m set out in the Design & Development Overlay.
8. As noted above, the proposal was forwarded to Ms Meredith Gould who made a number of comments most of which have been corrected in the set of plans which are now the subject of this review. One comment related to the retention of the view of windows in the south wall of Nos. 17 - 19 from the open carpark. However a permit has now been issued for a building on the common boundary which virtually obscures the view of these windows.
9. The Engineering Services Group in their response drew attention to the fact that the proposal includes use of a piece of land regarded as a lane by the Council. A proposed condition requires this matter to be clarified prior to construction proceeding.
10. Other comments from this group were as follows:-
* The Council's Student Housing Guide requires provision of 7.5 car spaces whereas none is provided.
* The proposal would have negligible impact on surrounding traffic.
* Arrangements for deliveries should be specified.
* Secure, covered lock-up facilities should be provided for bicycles.
11. It should be noted that there was no comment concerning room sizes, light or ventilation of the proposal from this department.
12. Health Services' reply included the following comments:-
* washing and toilet facilities must be provided at the rate of one for every 10 persons or part thereof.
13. Mr Harvey next set out (at page 13 of his submission) full details of the planning controls. Briefly summarised, these covered the following matters:-
* Student accommodation, which shares facilities, is not specifically defined in the Planning Scheme but falls within the description of residential building. The accommodation is distinct from a dwelling which must include self-contained facilities
* The proposal need not comply with the provisions of ResCode.
* 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.
* O'Connell Street has a Level 2 streetscape with the subject buildings being graded A and C (above).
* DDO 32 provides a mandatory maximum building height of 14 m (the amended proposal complies).
* Car parking - a permit is required to reduce or waive the car parking provision, none being provided on site.
* The Local Planning Policy Framework (City Plan) has an aim to increase the City's population. Outcome 4.1.1 suggests by "expanded student housing options".
Outline 4.1.2 suggests "encourage private sector development of some housing for group households of more than four people, such as students .... (etc).
* Part 2 of City Plan suggests North and West Melbourne "is a good location for student accommodation ...".
* Local policies refer to heritage places outside the capital City zone, the environs of Queen Victoria Market (parking) and others.
14. Mr Harvey set out details of proposed Amendment C60 which revises the Municipal Strategic Statement and local policies. Clause 21.04-4 Housing and residential development, states:-
* Increase the supply of affordable housing, social housing, crisis accommodation, rooming houses, and student housing in locations with good access to public transport.
* Facilitate the provision of affordable, safe and well designed and managed student housing in locations with good access to public transport, services and tertiary education facilities.
* Ensure that new residential development provides reasonable on-site and internal amenity, particularly in regard to access to daylight, the provision of open space and acoustic privacy.
15. The Strategy notes that high standards are required for residential buildings particularly with respect to sunlight, overlooking, shadowing and noise.
16. Revised local policies promote energy efficient buildings, bicycle facilities - provision for one bicycle for each four units applies in this case.
17. Next Mr Harvey referred to the document "Student Housing Development and Management Controls (July 1999) although it is not incorporated in the Planning Scheme.
* The existing and proposed policy framework is supportive of student housing, and at this location.
* Height is now generally met but only by compressing floors in a manner that raises amenity and practical issues. Requests for RL information has not been provided.
* Some heritage issues have not been met, but this is not an overwhelming issue.
* There is no on site parking at all. This could easily have been provided together with improved bicycle facilities.
* The application process has been marred by vague and insufficient information, and a lack of evidence that it stems from a site responsive approach. There is still no information upon the management and operation of the use. The amending plans worsen some aspects of amenity.
* There remains a poor standard of internal amenity for most rooms in terms of aspect, overlooking, daylight and sunlight, as well as insufficient community and break out spaces.
* Energy efficiency and application of ESD principles is poor.
19. In his overall review of the proposal Mr Harvey commented that the proposal for student accommodation is generally supported by various planning instruments. Further, as the buildings are to be largely unaltered, there will be not be significant change to the neighbourhood character or streetscape.
20. The issues to be resolved in this review can now be summarised as follows:-
* building height and effect on the floor to ceiling heights of 15 O'Connell Street;
* internal amenity and its effect on a "good living experience" (student housing controls).
The plans assessed by Council did not conform with the mandatory 14 height limit. The proposed NOD required details of reduced levels (RL's) and the deletion of the upper floor above 15 O'Connell Street. The amending plans still do not have RL's, but purport to meet the height limit, achieved by a reduction in floor to ceiling heights to 2.44 metres (previously 2.44 - 2.48, and floor depths of 200mm, as compared to 250mm). The tolerances are now very tight, and the need for RL data remains. For example:
* The ground floor lounge, as advertised had a floor to ceiling height of 3.28 to 3.96 metres. Approximately half of this living room is now to have a 2.4 metre height, very low considered the intensive use it may be put to.
* 2.4m heights and 200mm floors may work where there are no penetrations, however, where bathrooms and ensuites are proposed in strata, the necessary drains etc may require medial treatments (eg. reduced ceilings below) to allow the infrastructure. This occurs at:
- proposed mid-first floor plan, shared bathroom above 2.4m lounge;
- proposed first floor plan, shared bathroom above bathroom (may be achievable);
- proposed second floor, shared bathroom above bedroom No. 30;
- proposed third floor, ensuites to bedroom 65 above bedroom corridor below, ensuites to bedrooms 68 and 69 above bedrooms 51 and 52 below.
The plans do not explain how this will be achieved without the reduction in height of some bedrooms further still. This arrangement is symptomatic of an overdevelopment, and threatens to further reduce the amenity of the already small, dark rooms.
22. Ms Williams criticised the fact that bathrooms and ensuites are not located directly one above the other thus adding complication to the internal planning. She also agreed with the comments regarding minimum ceiling heights made by Mr Harvey and considered that plumbing from bathrooms, etc. would be visible in the ceiling of the bedroom below.
23. In response, Mr Radisich pointed out that the minimum ceiling height under the Building Code of Australia (BCA) is 2100mm with 2400mm in habitable rooms. He said that no floor is less than 2400mm in height and that all services - where necessary - could be placed in the ceiling of the adjoining hallway. He also pointed out that no one has shown that the ceiling heights, including plumbing, cannot be achieved. In response to Mr Harvey's contention, he said that while part of the living room has a ceiling height of 2400mm, the first 9m into the room has a height of 3.96m.
24. We believe that this aspect of the review has been answered adequately. We agree with Mr Radisich that the onus rests with the permit holder to comply with any permit issued and plans endorsed as part of that permit, and all other relevant controls. On the basis of the information before us, we are satisfied that the proposal is capable of being undertaken in accordance with the application plans. In the event that the permit holder is unable to comply, separate approvals will need to be applied for, and assessed on their own merits.
25. Mr Harvey said that when used by the former occupant, Bicycle Victoria, the ground floor storage area was capable of being used as a carpark. He said applicable standards for student accommodation required the provision of seven onsite spaces which could be easily met in 15 O'Connell Street.
26. Ms Williams did not address this aspect of the review.
27. In response, Mr Radisich noted that the previous occupation of the building saw a total of 21 full-time and about 20 part-time employees on the site. No onsite parking is provided or available although the entire ground, first, second and third floors were occupied. This would require some 35 - 40 spaces based on floor area.
28. He then listed car parking for existing student facilities as follows:-
* Walsh Residences, Walsh Street, North Melbourne
* Swinnerton House, Anthony Street, North Melbourne
130 Students 8 car spaces - shared with staff/visitors.
230 rooms 50 car spaces - new tennis courts will reduce this by 20 spaces.
108 Students 26 car spaces - shared with backpackers.
29. Mr Radisich said that the availability of public transport, the close proximity to Melbourne University and RMIT militates against the necessity for students - most being from overseas - to have a car. He also pointed out that a student with a car could simply make arrangements for parking in any of the nearby commercial parking stations. He said that the hostel Manager will be able to park in the lane to the north of the building when visiting the premises.
30. In our view having regard to the nature of the use and to the site's outstanding access to public transport and proximity to educational institutions, it is reasonable to waive the parking requirement entirely.
31. Mr Harvey said that while the provision for bicycles was adequate, it was located against a wall used for bedrooms and not covered as required by MCC guidelines. Mr Radisich agreed to move the bicycle storage away from the bedrooms and to provide a cover over the storage area.
Internal Amenity and "a good living experience"
32. This aspect of the review probably occupied the greater part of the time taken for hearing.
33. Mr Harvey said that the Council supports the provision of student housing - students in fact comprise about 25% of the population of Melbourne City. However, because it is probably their first experience away from home, their stay should be a safe and happy experience. Mr Harvey detailed examples of overlooking between some rooms across a light court which is 2.1m wide. He believed the width of the light court should be increased and windows screened or staggered (some staggering already exists).
34. He said that the guidelines recommend that all bedrooms be provided with natural light from an external wall, with sunlight available at some time of the day.
One of the prime deficiencies of the proposal is the poor aspect of many of the bedrooms, and their ability to enjoy a reasonable outlook or access to daylight or sunlight. While making this comment, it is acknowledged that the recycling of a heritage building raises challenges in this regard, particularly for No. 17-19, and that the proposal does provide a light court. However, the depth of the light court, its dimensions, and the size and orientation of many of the rooms abutting it will render the outlook from many rooms as oppressive, dark and not conducive to a good "living experience".
In making these comments it needs to be recognised that that these modest size spaces are to be the main living, sleeping and studying areas for young persons, for considerable stretches of time. It is not just an apartment to sleep in, but a space where considerable time will be spent in study mode, or simply as a private space. The enjoyment of living in a space with good natural light, and even the occasional warming effect of sunshine compared to one perpetually relying on artificial light, heating and cooling is dramatic in its difference.
36. Mr Harvey then analysed shadow diagrams for the proposal and concluded:-
It can be summarised that for nearly all of the year, the north facing windows of the light court will be in shade. The upper two levels will enjoy narrow glimpses of sunlight at the summer solstice. However, the academic year has ended at this time.
Taking this situation, and the narrow, 2.1 width of the light court, the potential for natural light, view to sky or amenable outlook will be poor indeed.
37. Next Mr Harvey examined "aspects of the communal life offered" and said little communal or recreational space is available with only the main living room on the ground floor available plus an outdoor area which is provided by the light court. This has an area of only 16.5m2.
38. Ms Williams presented a very detailed examination of the provision of windows and so on which will not be repeated here fully. However she made the following principal points:-
* there was limited opportunity for social interaction;
* many rooms are overlooked both by others in the complex and by adjacent residential buildings. Amenity of bedrooms is poor;
* potential is available for noise, transmission and reverberation between rooms across the light well;
* few rooms have a window on an external wall thus limiting natural light and ventilation and access to sunlight;
* kitchen facilities are available only on the ground floor and then for all students.
... there are too many factors indicating this proposal has not been successfully resolved.
40. Responding on this aspect of the review, Mr Radisich called evidence from the following Consultants:-
Mr Poulton, who is widely experienced in matters of illumination, examined the proposal in some detail and calculated the light available to the various bedrooms.
Given that the rooms which rely on the light wells are bedrooms, and that their major times of occupation would not therefore be expected to be in daylight hours, and supported by the above summary of calculations, it is our considered opinion that there will be adequate natural light available in most of these bedrooms.
However please note that the exception to this statement is Bedroom 7 on the Ground Floor level which as shown in the calculations does not receive adequate natural light into the bedroom.
As stated in our earlier Report herein lies the dilemma of trying to balance the desire to preserve Heritage Buildings for new uses, against the need to provide adequate daylighting into proposed bedrooms.
As it is clearly not practical to increase the width of the light well or the size of the existing windows, it therefore seems that the plan should be accepted as it is presently shown.
42. Mr Growcott said that the Building Control Act (BCA) sets the minimum standards for noise reduction between independent adjoining accommodation. He said the project design includes light courtyards with openable windows in adjacent independent suites and in suites on the opposite sides of the light courts. He considered that the BCA minimum requirements would not be met in the above suites with windows open, but would be achieved "with both window systems closed against effective edge seals".
43. Thus he said that basic ventilation should be provided other than through the light court windows and said:-
It would seem reasonable that the light court windows can be openable provided the occupants have the ability to close the windows when requiring acoustic privacy.
The ground floor courtyard includes a doorway. If this doorway remains locked at times other than for courtyard cleaning then this area has equal characteristics to the suites above.
If students can occupy this area at any time windows to bedrooms off the courtyard should include double glazing. In particular 6.38mm laminated glass and 10.38mm laminated glass separated by at least 75mm to achieve the Rw (STC) 45 minimum performance.
The windows opening onto the light courtyard should be a minimum 6.0mm thick glass and have edge seals capable of allowing the glazing system to achieve an acoustic rating of at least Rw 28. A system achieving such a result would require edge seals better than simple brush seals. Systems would be available from Capral, Australian Aluminium, Lidco and G James.
A window system providing Rw 35 performance would allow compliance with one window closed and the adjoining one open. A well sealed 14.76mm laminated glass window system would be capable of achieving such a result.
45. It is clear that the resolution of this aspect of the review revolves around the conflict presented " by the desire to preserve heritage buildings for new uses against the need to provide adequate daylighting into proposed bedrooms", to quote Mr Poulton (above).
46. In this case we believe greater weight should be given to the desire to preserve an A graded heritage building in preference to requiring that natural light be provided into all bedrooms, especially in circumstances where a reasonable level of amenity is capable of being provided by the use of light wells and other means. While we acknowledge that there are issues of detailed design relating to for example, the location and treatment of windows to minimise overlooking opportunities, these are matters capable of being resolved by way of permit conditions.
47. We have reached this conclusion for the following reasons:-
* An inspection of existing student accommodation showed that few students occupied the building during daylight hours. We were told - and we accept - that most students prefer to study at their tertiary institutions where excellent libraries and other study facilities are available. Further, recreation facilities and meals are readily available over a wide range of times throughout the day. In addition, the academic year only extends for some 30 weeks so that students are not permanent residents in a way that residents of flats would normally be.
* It was argued against the proposal that room sizes were too small, with inadequate lighting and ventilation. All these matters are covered in some detail by the BCA and we see no justification - indeed none was presented - to increase the standards. The room sizes are also generally consistent with that required by the Council's own policies for this form of accommodation.
* Thus we conclude that the matters of light, ventilation and noise transference can be handled appropriately by the provisions of the BCA. It should also be recalled that neither the Health nor Building departments of the Responsible Authority raised any objection to the proposal on these grounds.
48. We are also influenced in arriving at our conclusions by the fact that the proposal is consistent with the Council's own policies contained in the document Student Housing Development Controls. This document specifically recognises the difficulties associated with converting large, older buildings into student accommodation. With respect to issues of natural light the document states;
"Although larger buildings may seem ideal for student housing, they also present their own problems. They may have the space for large numbers of study bedrooms, but many of the rooms will be internalised and have no natural light or external aspect. In these cases, it is important for floors to be arranged so that light wells and courtyards can be included in the design.
Installing light wells in a multi level existing building may be expensive, but this should not be an argument for compromising the amenity of study bedrooms.
As a general principle, all sources of light to study bedrooms must be from external walls open to the sky and not through highlight windows to corridors or through glazed internal light wells or atria. While this requirement is in conflict with Clause F4.3 of the Building Code of Australia, it is a fundamental minimum standard for accommodation"
49. The difficulties identified above concerning the conversion of existing multi level buildings are compounded in this case by the existence of the heritage overlay on the building which further limits the ability to incorporate substantial changes to the building structure. Notwithstanding this, the applicant has successfully incorporated light wells into the building without compromising the heritage significance of the building, and in a manner which provides, in our view, an acceptable level of amenity for future occupants.
50. This aspect of the review was not included in the grounds of refusal (above). However Mr Harvey argued that the proposal "has used an inappropriate (and flawed) energy efficiency rating".
51. Mr Radisich however called evidence from Mr A. A. Kirk, an accredited Energy rater. Mr Kirk acknowledged that the software directed to be used by the Council in the assessment of the subject building, was not appropriate in this instance, but that it was carried out at the insistence of the Council .
52. We do not believe that this is a substantial issue in this review, considering that we are dealing with the conversion of existing, heritage graded buildings rather than the construction of new buildings, and having regard to the fact that the outer walls of the existing buildings are some 500 or 600 millimetres thick thus offering excellent insulation against both thermal and noise variations.
53. It follows from the above that the decision of the responsible authority is set aside and it is directed that a permit issue in accordance with the attached Order.
O'Connell Residence Pty Ltd
Melbourne CC [2003] VCAT 1769
The Council's refusal decision was set aside. The Responsible Authority was ordered to issue a permit subject to the stated conditions, including approved amended plans, materials and finishes, a section 173 agreement restricting the use to eligible full-time students and requiring a management plan, and conditions addressing noise, garbage, drainage and commencement and completion timeframes.