P T Limited as custodian for the Macquarie Office Collins Street Trust

163 - 173 Collins Street (known as 171 Collins Street) and 2-24 Watson Place & 178 - 184 Flinders Lane (known as 180 Flinders Lane) Melbourne

P T Limited v Minister for Planning [2008] VCAT 1240

1. Leave is given to the permit applicant to amend the address of the subject land in the application for permit and the application for review to 163 - 173 Collins Street (known as 171 Collins Street) and 2-24 Watson Place & 178 - 184 Flinders Lane (known as 180 Flinders Lane) Melbourne, pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act').
2. Leave is given to the permit applicant to amend the plans which form the basis of its application for review to those numbered in BatesSmart "Revised Drawings" Schedule pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act').
3. Body Corporate 29865W (of 165 Flinders Lane) and Body Corporate 326134L (of 267 Flinders Lane) (and represented by Mr Denton) are joined as parties to the proceeding, pursuant to the VCAT Act 1998, s.60(1)(b).
4. The Tribunal directs the responsible authority to delete permit condition no.1(e) of the notice of decision to grant a permit No. 2006/0471 issued on 10 December 2007.
5. The Tribunal directs the responsible authority to delete permit condition no. 1(a) (iv) of the notice of decision to grant a permit No. 2006/0471 issued on 10 December 2007 provided the plan by BatesSmart No. TP-2-03 Rev B dated 12 May 2008 forms part of the endorsed plans.
6. The Tribunal directs the responsible authority to amend permit condition no. 9 of the notice of decision to grant a permit No. 2006/0471 issued on 10 December 2007 as follows:

Prior to the commencement of the development, excluding demolition, bulk excavation and site preparation and retention works, piling, footings and ground beams and ground slab, a report by an accredited professional must be submitted to the satisfaction of the responsible authority documenting the energy efficiency measures introduced into the building design to the satisfaction of the responsible authority. The performance outcomes specified in the report must be implemented prior to the occupation of the development to the satisfaction of the responsible authority.

1. The Tribunal directs the responsible authority to delete the number '105' from permit condition no. 14 of the notice of decision to grant a permit No. 2006/0471 issued on 10 December 2007.

The decision of the responsible authority is varied. A permit is granted and directed to be issued by the responsible authority under the provisions of section 85(1)(b) of the Planning and Environment Act 1987 for the land at 163 - 173 Collins Street (known as 171 Collins Street) and 2-24 Watson Place & 178 - 184 Flinders Lane (known as 180 Flinders Lane) Melbourne which allows buildings and works including demolition to buildings in Watson Place and Flinders Lane, refurbishment of the building to Collins Street and the construction of a 17 level building, with a four level basement for the purpose of office, ground floor retail and car parking generally in accordance with the endorsed plans. The Tribunal directs that the permit must be subject to the conditions contained in the notice of decision to grant a permit No. 2006/0471 issued by the responsible authority on 10 December 2007 subject to the following modifications:

Prior to the commencement of the development, amended plans to the satisfaction of the Responsible Authority must be submitted to and be approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions, and three copies must be provided. The plans must be generally in accordance with the plans drawn by BatesSmart and identified as plans numbered:

Collins Street Plan (Mayfair Building) - Demolition

South Elevation (Flinders Lane) Revision B(12/5/08)

1. Conditions 1(a) (i), (ii), (iii) and (v) must be deleted.

Ms M Quigley SC of counsel, instructed by the Victorian Government Solicitors Office for the Minister for Planning and Community Development

Mr Canavan QC with Mr Tweedie of Counsel, instructed by Rigby Cooke Lawyers.

Mr Canavan QC called Mr Roger Poole, architect of BatesSmart; Mr Stuart McGurn, planning consultant of Fulcrum Town Planners; Mr Jamie Govenlock, planning consultant of Urbis PL; Professor Philip Goad, Architectural Historian and Urban Design Critic; Mr Peter Lovell, Heritage consultant of Lovell Chen; and Mr Stephen Hunt, traffic engineer of Cardno Grogan Richards Pty Ltd.

Mr H McM Wright QC of Counsel with Ms Cincotta instructed by Best Hooper Solicitors.

Mr Wright QC called Ms Charmaine Dunstan, traffic engineer of the Traffix Group and Mr Jason Marriner, General Manager of the Regent Theatre.

For objectors Body Corporate 310944M; Body Corporate 29865W and Body Corporate 326134L.

1. This site, abutting two heritage listed buildings, the T & G Building and the famous Regent Theatre, lies at the Paris end of Collins Street between Collins Street and Flinders Lane on the corner of Watson Place, Melbourne.
2. It already enjoys planning permission for a seventeen level building designed by Denton Corker Marshall, which permit expires in 2010.
3. The permit applicant wishes to refurbish the heritage listed Auditorium building to Collins Street, demolish buildings to Watson Place and Flinders Lane, and construct a 17 level building, with a four level basement for the purpose of office, ground floor retail and car parking. One crossover off Flinders Lane is proposed for the site, in the same location as an existing crossover.
4. Residential objectors review the decision to grant a permit on heritage grounds, having no review rights in respect of many other Capital City Zone controls or other Design and Development overlays.
5. The Regent Theatre and the permit applicant both oppose conditions imposed by the responsible authority, the Minister of Planning, the effect of which is to relocate vehicular access, loading and unloading from Flinders Lane to Watson Place.
6. The permit applicant also reviews conditions on the Notice of Decision by the Minister for Planning to grant a permit requiring amended plans showing:
   1. the tower to be set back above podium level from Flinders Lane for the depth of two structural columns (this equates to a 15.17-metre set back);
   2. the replacement of the Flinders Lane vehicular entrance with an active frontage to promote an interesting and safe pedestrian environment generally in accordance with the design objectives of clause 43.02 Schedule 1 - Design and Development Overlay 'Active Street frontage Capital City Zone';
   3. revision to the architectural treatment of the Flinders Lane podium to provide greater articulation and expression of detail;
   4. revisions to the southern elevation of the tower to provide greater articulation;
   5. all modifications necessary to ensure that the plans are consistent with the conditions of the permit issued under the Heritage Act 1995 for this development.
7. The permit applicant also reviews the following corrected ESD condition:
   1. Prior to the commencement of the development, excluding demolition, bulk excavation and site preparation and retention works, piling, footings and ground beams and ground slab, a report by an accredited professional must be submitted to the satisfaction of the responsible authority documenting the energy efficiency measures introduced into the building design and confirmation that a 6-star Energy Rating under the Green Building Council of Australia's (GBCA) Green Star rating tools can be achieved. The performance outcomes specified in the report must be implemented prior to the occupation of the development to the satisfaction of the responsible authority.

1. The site sits in the Capital City Zone (Outside Retail Core) Schedule 1, clause 37.04-1 Melbourne Planning Scheme, where no permit is required for use of office or retail. A permit is only required for buildings and works pursuant to clause 37.04-4.
2. Planning permission is also required pursuant to CCZ1 Schedule 1 clause 3.0:
   1. to construct a building or construct or carry out works which would cast a shadow between 11.00 am and 2.00 pm on 22 March and 22 September over ....public squares, major pedestrian routes including streets and lanes, and privately owned plazas open to the public;
   2. to construct any part of a building exceeding a height of 40 metres within 10 metres of a road frontage.
3. Decision guidelines at Schedule 1 clause 3.0 require us to consider, inter alia:
   1. Clauses 19 and 22.01 of the State Planning Policy Framework and the Local Planning Policy Framework;
   2. the potential for increased ground-level wind speeds and the effect on pedestrian comfort and the amenity of public places.
4. The site is covered by the following four heritage controls:
   1. HO504 - Collins Street precinct;
   2. HO506 - Flinders Lane precinct;
   3. HO581 - Former Auditorium Building at 167-173 Collins Street and Flinders Lane (Heritage Victoria Ref: H416)
   4. Heritage Victoria registration. (Heritage Victoria Ref: H416)

But as a result of the issue of a development permit by Heritage Victoria, no planning permission is required under the above three heritage overlays in respect of that portion of the subject land that is dealt with by the HV permit[1]. That only leaves the south western portion of the proposed building fronting Flinders Lane requiring planning permission in respect of heritage matters.

1. The site is also covered by design and development overlays.
2. The relevant purpose of DDO1 Active Street Frontages is to ensure ground floor frontages are pedestrian oriented and add interest and vitality to city streets. But on the majority of the site which enjoys a permit from Heritage Victoria, DDO1 Active Street Frontages does not apply, pursuant to its clause 3.0. DDO1 only applies to the south west corner of the development.
3. The relevant purposes of DDO2 Height Controls (Area 5) which seeks a 40 metre maximum building height are:
   1. to protect sunlight access to key public places and open space areas so as to provide a comfortable, pedestrian-friendly urban environment and
   2. to maintain the visual dominance of prominent landmarks (St Paul's Cathedral).
4. The Heritage Victoria permit does not however, exempt this development from the exercise of discretion under DDO2 Height Controls.
5. The relevant purposes of DDO3-Traffic Conflict Frontage are to promote pedestrian flow, safety and amenity; to improve opportunities for the enhancement of roads for pedestrian use by discouraging further access to off-street car parking across traffic conflict frontages; to minimise conflict between pedestrians and vehicles on footpaths and to ensure ground-floor frontages are pedestrian oriented and add interest and vitality to city streets.
6. The Heritage Victoria permit does not however, exempt this development from the exercise of discretion under DDO3-Traffic Conflict Frontage.
7. The relevant purposes of DDO4 Weather Protection is to promote pedestrian amenity on major pedestrian routes and areas. The Heritage Victoria permit does not exempt this development from the exercise of discretion under DDO4.
8. Decision guidelines at clause 43.02 require us to consider, inter alia cll 19 and 22.01 of the State Planning Policy Framework and the Local Planning Policy Framework and the design objectives of the relevant schedule to this overlay.
9. Clause 19 emphasizes the importance of protecting and enhancing, inter alia:
   1. the public realm, which includes main pedestrian spaces, streets, squares, parks and walkways;
   2. landmarks, views and vistas;

1. new development should aspire to the high standards in architecture and urban design.

1. Clause 22.01 seeks to enhance the physical quality and character of Melbourne's streets, lanes and Capital City Zone form through sensitive and innovative design. Its policy is to assess applications against, inter alia, the following design standards:
   1. To improve the experience of the area for pedestrians.
   2. Towers should have a podium height generally between 35 to 40 metres except where a different parapet height already exists or where the need to provide a context for a heritage building or to emphasise a street corner justifies a variation from this norm.
   3. Towers above the podium should be setback at least 10 metres from street frontages.
   4. Towers should be well spaced to equitably distribute access to an outlook and sunlight between towers and ensure adequate sun penetration at street level as follows:
   5. Development above 45 metres be set back 24 metres from any surrounding podium- tower development.
   6. Tower separation setbacks may be reduced where it can be demonstrated that towers are offset and habitable room windows do not directly face one another and where consideration is given to the development potential of adjoining lots.

1. No third party appeal rights exist in relation to any issue concerning discretions under the Capital City Zone Schedule 1; DDO1; DDO2, DDO3 and DDO4 and HO 504, HO 581 and that part of HO 506 that sits within HO 581. The reason for the latter is a permit already issued by heritage Victoria for the redevelopment.
2. On 31 August 2007, Heritage Victoria issued permit P11166 which authorises, inter alia, the following works with respect to Heritage Place HO416:

Proposed development of former auditorium site as per Bates-Smart application dated 16 July 2007 including development of a 76 metre office tower at maximum parapet height RL93.50...

1. The Heritage Victoria permit covers the registered place, which comprises the entire Collins Street frontage and extending all the way due south back to Flinders Lane, equating to HO581. The registration however, does not affect the whole of the subject land. It does not apply to roughly half of the land fronting Flinders Lane at the Watson Place corner.
2. The effect of all this is that while a permit is not required under the Heritage Overlay for any of the land included within the Victorian Heritage Register, a permit is required for development of land outside the area of registration, coinciding with HO506. Effectively this splits the building down the middle at its frontage to Flinders Lane.
3. The legal and practical consequences of just such a circumstance was addressed by Justice Morris and Member Cimino in JGL Investments Pty Ltd v Minister for Planning[2] in the context of the previous development proposal for the subject land. They said as follows:
   1. By reason of a ruling previously made by the Tribunal, which was upheld by the Supreme Court of Victoria (both at first instance and on appeal), the only issue that the applicant for review can rely upon in this proceeding is whether or not a permit should be granted for the construction of the proposed building over that part of the subject land which is affected by Heritage Overlay HO506, but which is not subject to Heritage Overlay HO581. ...
   2. Clause 43.01-3 of the Melbourne Planning Scheme provides that no permit is required under the Heritage Overlay to develop a heritage place identified in the schedule to the overlay as a place which is included on the Victorian Heritage Register if, inter alia, a permit for the development has been granted under the Heritage Act 1995. The schedule identifies, as a heritage place, the place known as Formally the Auditorium, 167-173 Collins Street and Flinders Lane, Melbourne and refers to this place as HO581. The schedule also identifies this place to be a place which is included on the Victorian Heritage Register, noting the reference H416.
   3. The heritage overlay maps, which form part of the scheme, show the area HO581 as including the eastern portion of the land, but excluding two western portions, one at the centre of the site and the other at the south of the site.
   4. The land which is subject to the registration under the Heritage Act is not the same as that identified in Heritage Overlay HO581. The land identified in the Heritage Register includes the western portion, at the centre of the site; but excludes the portion in the south western corner of the land, but this exclusion is to a slightly greater extent than that in Heritage Overlay HO581. However, this difference is insignificant.
   5. The President holds that the circumstances where no permit is required under the Heritage Overlay are to be ascertained from the schedule to the overlay, rather than from the Victorian Heritage Register. This follows from the words used in clause 43.01-3.
   6. Hence, in the present case, a permit is required under the Heritage Overlay for the construction of that part of the building which is to be located on the two western portions of the subject land. In other words, a permit is required for the construction of a building on the land which is subject to Heritage Overlay HO506, except for that part of HO506 which is within HO581.
   7. The two tower elements which protrude onto the western portion of the land, and hence require a permit pursuant to the Heritage Overlay, are not in any way contrary to the policy objectives of Heritage Overlay HO506. This would be the case even if we were required to consider the whole of the proposed building. However we are only concerned with those parts of the building which are outside Heritage Overlay HO581; and a consideration of these parts needs to be performed on the assumption that the balance of the building exists on the land subject to Heritage Overlay HO581. On this basis, it is even easier to conclude, as we do, that the additional parts of the building are inconsequential and will not in any way be detrimental to either the heritage policies for area HO506 or the cultural significance of that place.
4. The Tribunal in Sweetvale No 1 ruled that 'the exemption provisions should be given force and effect in respect of the planning controls to which they apply'. The Tribunal further ruled that a party which was entitled to bring an application for review under a planning control which is not subject to an exemption provision was not then entitled to contest decisions made under planning controls which are subject to an exemption provision.
5. Neither of the third party objectors have indicated that they have issues with the demolition of any buildings or with car parking (as opposed to traffic and access matters). Both, therefore, are only entitled to be heard on issues which concern heritage impact on HO506, to the extent that those matters are not subject to a permit issued by Heritage Victoria.

1. Given the planning permit issued by Heritage Victoria for refurbishment of the Auditorium Building and redevelopment of much of the remainder of the site, the planning scheme takes consideration of this major part of the redevelopment out of the control and discretion of the Responsible Authority and in turn, VCAT.
2. Our consideration of those parts of the building within HO 506 but outside HO 581 is predicated on the reality that the balance of the building enjoys a development permit issued by Heritage Victoria. Third parties, the Minister and in turn VCAT cannot review heritage issues because the whole Collins Street and half of the Flinders Lane frontage is now permitted as-of-right under its Heritage Victoria permit.
3. Mr Canavan QC submits that it would be a nonsense for there to be two inconsistent decisions reached with respect to the appropriate height of the podium on Flinders Lane. The existence of the eastern part of the proposed building on the subject land (at the podium height specified) is a 'given'. Impact on heritage of the western part must be assessed with this in mind.
4. Mr Canavan QC concedes that the Responsible Authority can however impose tower setback and podium height conditions and design articulation under permissions required under the Capital City Zone (buildings and works), some of the DDO's and the clause 22.01 discretions. Remaining urban design issues, such as design articulation and adequacy, setback from podium and street-front activation as well as traffic and parking management issues remain to be decided by the Responsible Authority and in turn, VCAT.
5. A second anomaly is that because the Heritage Victoria permit does not cover the southwest corner of the site, in particular the corner tower element proposed for the corner of Watson Place with Flinders Lane, any decision concerning the activation of most of the Flinders Lane frontage under the DDO-1[3] is taken out of the consideration of the Responsible Authority, having been approved by the Heritage Victoria redevelopment permit. The Minister seeks the relocation of the access in order to activate the Flinders Lane street-front. But that part of Flinders Lane containing the access way is approved by Heritage Victoria and outside the scope of our discretion. The south west corner which is not covered by the Heritage Victoria registration contains an active street front in the proposal.

Amendment to documents, to NOD conditions and joinder

1. Leave to amend both the documents forming the basis of this proceeding[4], the parties to this proceeding and to delete or reword some conditions on the NOD was agreed to by all the parties, in accordance with the Consent Orders set out in this decision.

1. Ian Lonie, Solicitor of Clayton Utz acts for the objectors Sweetvale Pty Ltd, SachsenFonds Australian Property Investment I, GmbH and JGL Pty Ltd who own the heritage listed T & G Building. Mr Lonie wrote to the Tribunal before the hearing commenced:

.......Our clients' interests in these proceedings arise as owner and occupier of the building at 161 Collins Street, Melbourne ("Adjacent Building"), being the building adjacent to the site the subject of these proceedings.

An agreement has been reached between our clients and the permit applicant in relation to these matters. Accordingly, our clients advise that they wish to seek leave from the Tribunal to withdraw as a party from both proceedings, and for the Tribunal to note and respect the position of our clients as follows:

1. That they have been consulted by the permit applicant throughout the process of design development and refinement, and have been involved in the appeal process to date;
2. They support the grant of a permit for the proposed development as detailed in plans prepared by Bates Smart annexed to the Permit Application No. 2006/471 as revised on 17 July 2007 and the subject of the application for review dated 18 December 2007 ("the Plans") and in particular they support:
   1. the height of the proposed development;
   2. the setback of the proposed tower and its relationship to Flinders Lane at the podium level (and, further, would have no objection to the podium being aligned with the Flinders Lane street boundary if the permit applicant or the Tribunal thought it desirable for the purposes of the redevelopment).
3. It is important to our clients to preserve the aspect of the 4 banks of windows (24 in number) ("Windows") on the west side of their building to the atrium space and our clients would object to the proposed development being modified such that:
   1. The building footprint (as shown on the plans) extends the footprint of the tower (as shown on the plans) to the east or north of the current setbacks detailed in the plans, unless such extension to the footprint is less than one (1) metre in which case our clients would not object; or
   2. Any infill building is allowed to be constructed immediately north of the lift core to expand the floor areas of the office levels adjacent to the western boundary of the adjacent building to within 5 metres of any of the windows or otherwise in a manner which results in our clients having to infill any of the windows.

1. There being no objection, leave was given to JGL Investments Pty, Sweetvale Pty Ltd and SachsenFonds Australian Property Investment I GmbH to withdraw their review against the decision of the Minister for Planning.

1. The Tribunal repeats with modifications, Professor Dr Philip Goad's description. The urban block bounded by Collins, Swanston, Flinders and Russell Streets is rich in architectural heritage and typifies Melbourne's distinctive urban morphology. At the corners of the block, facing the broad major streets which have the character of boulevards, are landmark buildings such as the Gothic Revival St Paul's Cathedral with its spires completed in the 1930s, the fanciful Forum Theatre (1929) with its Moorish cupola and winged green gargoyles, and the modem commercial palazzo form of the former T&G Building (1928-9). The fourth corner is occupied by the open space of the City Square.
2. Between these buildings on Collins, Flinders and Russell Streets are infill buildings that range in date, style and scale, with almost all having retail functions at ground level. For example, at 171 Collins Street, the subject site, the Mayfair Building, formerly the Auditorium Building and designed by Nahum Barnet in 1913, is a fine example of the tall-arched American Romanesque style.
3. Bisecting this large urban block in the east-west direction is the narrow Flinders Lane, which has a completely different urban character to that of the city's major boulevards that form Melbourne's colonial grid. On the lane's south side is a handsome series of buildings that range in height from three to eight levels, in date from the 1880s (next to St Paul's) to the 1980s, have proportionally tall and narrow facades, and in style range from late Edwardian Baroque to the Moderne of the Adelphi Hotel. The buildings are built hard on the street and because of the slope of Flinders Lane, there are sub-basements or steps up to main entry levels. On the north side of Flinders Lane, the character is less consistent. The scale and bulk of the buildings increase. There are also existing lanes and car park openings. The only two buildings of historic merit on this north side of Flinders Lane are the rear of the former T&G Building with its 1990s Post-Modem addition by Metier III and the American Romanesque form of the 19th century Richard Allen Building (with its later addition of two storeys dating from c1920s), which is immediately adjacent to the subject site. The rear of the Regent Theatre fronting Flinders Lane is brutal, lacking surface modulation.
4. The two buildings on the subject site that face Flinders Lane - a four-level 1980s commercial building and a three-level 1960s office building (VSPA House) - have little or no architectural merit. In this section of Flinders Lane on the north side, there is almost no retail activity. However despite this, the distinctive, small scale and intimate character of Melbourne's laneways does exist within this section of Flinders Lane, a character gained by a series of wall-like buildings hard on the street where building height far outweighs street and lane width and there is a sense of north-south permeability of the urban block - i.e. the use of lanes, arcades or throughways within buildings that allow pedestrian movement within and across the larger urban block - and this impression is gained despite many of the lanes being dead-ends or dead-end dog leg lanes.
5. The design challenge therefore, in terms of urban design, is fourfold:
   1. to retain and enhance the heritage-listed building on Collins Street and at the same time minimise the impact of any tower behind
   2. to respond to the scale and character of Flinders Lane
   3. to provide a neutral backdrop to the spires of St Paul's Cathedral
   4. to provide a building which is contextually responsible and achieves the above three goals, but exudes design excellence.

1. To meet the above challenges, the Tribunal repeats with modifications, Professor Dr Philip Goad's description of the proposal. The development comprises a refurbished nine-level heritage-listed building on Collins Street with a new screened rooflop plant and a seven level office building behind, which then steps down to a six-level podium on Flinders Lane. The new office building is rectangular in plan and form, and it has glazed façades of alternating canted sections on its north, west, southern and eastern elevations. The podium façade, also all glazed, has a different surface treatment to that of the taller office building behind.
2. The rear section of the Mayfair building - a hip-roofed four-level structure - is to be demolished to create a new sky-lobby and glazed atrium between the old Collins Street building and the new office tower. At this Level 1 sky-lobby, one will be able to look northward and up and see the oñginal window openings in the Mayfair Building's rear brick façade and also new windows to match the existing. In this way, it will be clearly evidence where old ends and new begins.
3. From Collins Street, a new pedestrian and retail link will be inserted to connect to Watson Place and also Flinders Lane, in effect creating a new sense of permeability across the urban block. At two locations along this contemporary glazed arcade will be a double bank of escalators which will carry workers and visitors upwards to the new sky-lobby at Level 1. The effect of this strategy is to give back to the street level the small, publicly accessible urban grain of the ground-floor single occupancy shop, the 19th century arcade and the laneway, and hence not introduce the large undifferentiated foyer spaces typical of the post-war skyscraper. Such large foyer spaces do exist in the proposed development but on the floor above and are combined with further retail and retail functions as well as security barriers for tower access.
4. The office tower is set back 32 metres from Collins Street and 4.93 metres at ground level (and 4.33 metres above Level 6) from the alignment of the Richard Allen Building on Flinders Lane and rises to a height of 73.65 metres above Collins Street [RL93.50-19.85] and 76.85 metres above Flinders Lane [RL93.50-16.65].
5. The tower's setback from Collins Street means that the tower will be concealed when viewed from Collins Street. To protect and enhance the view of St Paul's Cathedral's spires, the form of the tower - a simple rectangular slab block - and its facade has been designed as a backdrop element. Rather than provide a building with a picturesque, eye-catching silhouette such as a pinnacle or feature element, the architects instead have adopted a design approach which defers to context, sightlines and a requirement that the office tower not cast any shadow onto Federation Square.
6. Instead of using an unadorned and anonymous reflective glass façade, the architects have proposed a series of alternating canted bays (each five storeys high) across the breadth of each façade. The glazing consists of floor to ceiling fritted glass, which is a tempered glass with a white ceramic-based paint permanently bonded onto the glass. This "frit" assists in preventing UV rays from penetrating the glass. In this case, the fritted glass combined with the alternating canted bays reduces the potential for a mirror-like surface, reducing glare and allowing the building to read as a unified whole and not as a series of stacked floors or as a giant mirror. The height of the bays also introduces a surface modelling that is sympathetic with the scale of the lower canopy of heritage and infill buildings at street level. The overall result therefore of the form and façade of the tower, from each direction, will be a softly textured, gently modelled and non-reflective glazed backdrop.
7. At the southwest corner, the podium steps back from the title boundary to allow increased turning circle space for service vehicles wishing to use Watson Place. This step also allows, compositionally, the tower to read as touching the ground. It means therefore that the setback of the tower to Flinders Lane is 4.33 metres.
8. The podium, like the tower, is also glass-clad but its treatment is entirely different. The Flinders Lane façade is broken into three portions (a tactic employed commonly in Renaissance palazzi and 19th and 20th century Renaissance Revival designs) of a base, middle and top, similar to many neighbouring buildings now in Flinders Lane. The vertical and horizontal divisions of the podium façade are achieved through the use of deep metal plates, which means that there are vertical glass panels or "pilasters" which sit forward and glazed infill panels that are set back. The steel plate forms then a deep reveal which echoes the deep reveals of the language of pilasters used elsewhere in Flinders Lane. A modulated surface which provides shadow and visual relief and is normally achieved through brick or cement stucco is here achieved through the contemporary use of glass and steel. The "pilasters" in this contemporary account draw their proportions from neighbouring buildings and their impression of solidity because the glass is reeded, i.e. textured horizontally. The arrangement of the pilasters is not symmetrical and this is deliberately so, again to break down the visual mass of the façade, and imbue it with a similar sense of surface variety and interest as its historic neighbours. A similar treatment is deployed over the three lowest levels of the tower as it meets the ground along more than half the length of Watson Place. The intent is again to introduce new visual interest through materials and surface modulation, and also to signal the tower as having an "address" to Flinders Lane.

1. The principal issues for consideration in respect of this application for review fall into four major categories. They are design articulation; street frontage activation; traffic and parking circulation and setback of the podium to the tower element. A plethora of Capital City Zone policies, Heritage overlays and Design and Development overlays apply to this site and make many demands of any redevelopment.
2. Given the consent orders agreed to by the parties, the remaining issues in the application may be distilled to the following:
   1. is the podium an appropriate height?
   2. is the tower appropriately setback from the Flinders Lane podium or should it be setback more, and if so, as much as the Minister's desired 15.17 metres?
   3. is the façade treatment of the south side of the tower appropriate?
   4. should the vehicle access to the basement be relocated to Watson Place to secure greater activation of the Flinders Lane frontage?
3. The parties and the witnesses in the appeal made both written and verbal submissions, a number of plans, photographs and other documents were tendered to us and remain on the Tribunal's file. The Tribunal conducted an extensive inspection of the site and its locality, including addresses directed by the applicant's witnesses.

1. Given the heritage listing of the Auditorium Building and much of the site, VCAT has a defined role, a constrained ambit. Firstly, the Heritage Council of Victoria is the arbiter of heritage matters. Secondly, the role or input of third parties is strictly prescribed. Thirdly, our answers must be informed by the planning scheme.
2. Mr Canavan was at pains to point out that the architect achieved the following outcomes when designing to all the constraints posed by the context of this site. The former Auditorium Building is being refurbished and uplifted. To respect the heritage Auditorium Building, the tower element is setback 32 metres from Collins Street. Pedestrian connectivity will now occur between Collins Street, Flinders Lane and Watson Place. Both Flinders Lane and Watson Place will be activated by retail activity and window displays. Shadow impacts on public streets and St Pauls are acceptable. The podium height reflects the heritage Richard Allen building. The architecture and particularly the cladding of the proposal responds to the importance of views to major landmarks such as St Pauls Cathedral.

1. The Minister is satisfied that the podium height, at 31.65m above Flinders Lane, is acceptable because, although it is not in the recommended range of 35m to 40m (clause 22.01), it does align with the top of the adjoining Richard Allen building. This building is a heritage building, and makes an important contribution to the heritage values of the Flinders Lane heritage precinct.
2. Only Mr Denton took objection to the podium height, submitting it should be lowered by two levels to repeat the discontinuous building profile ranging from two to eight storeys along Flinders Lane where adjacent parapets do not align. This would have the benefit of allowing sunlight into this section of Flinders Lane.
3. We do not support his submission. We find the podium correlation with the height of the abutting heritage Richard Allen building and with the heights of many heritage buildings opposite this part of Flinders Lane compelling. Heritage expert witnesses concur.

Is the tower appropriately set back from Flinders Lane?

1. We will continue to call the highest portion of the new building a 'tower' for the sake of planning scheme nomenclature even though we acknowledge Mr Canavan's submission that it is not a tower by comparison with 101 Collins Street and other Collins Street towers between Spring and Exhibition Streets.
2. The glazed tower façade, by virtue of its in+out-slant articulation, projects a variation of 0.5m. The setback of the tower from podium is only 2.5m-3.0m and so the podium is very shallow. This tower has a minimal setback from Flinders Lane of 4.33m - 4.83m from the building line, or only 2.5m-3.0m from the subject land property line near the corner of Watson Place.
3. The Minister's condition seeks a 15.17-metre setback. Mr Denton wished its setback to align with the setback of the T & G Building behind the Richard Allen warehouse.
4. The tower setback follows policy in clause 22.01 that towers above the podium should be setback at least 10m from street frontages. This policy does not distinguish between the larger and smaller city streets, so the importance of retaining appropriate scale of towers is as important in smaller streets as in large streets.
5. The urban design witnesses gave evidence. Their evidence was that this policy is not about seeing the tower; it's how you read the tower in relation to the rest of the street, and should come back to the quality of the design, rather than a numerical calculation.
6. One of the purposes behind the policy is to prevent heritage buildings looking like stage sets. The policy enables heritage buildings to be read clearly and distinctly, and 30-metre wide streets contribute to the need for that podium/tower differential.
7. The policy tests whether the tower is intrusive; overtaking the space through which the pedestrian is travelling. The policy tests the scale of the walk-through experience. The expert witnesses acknowledged the subjectivity involved in this assessment. Although acknowledging that the policy applies to both scenarios, the experts differentiated between wide and narrow streets.
8. Mr McGurn in particular, suggested that the recessing of the towers was more appropriate in wide streets, such as Collins Street, where the recessing of the towers deferred to the primacy of historic building forms found along the street alignment. Mr McGurn stated that there were many other examples when no tower setbacks were provided in the CBD where the maintenance on existing built form on the street alignment was not an important element.
9. The Tribunal can understand that at first glance recessing the upper level may appear to be a reasonable outcome to pursue. However, a close examination of what is sought by the policy objectives and the design guidelines of the Melbourne Planning Scheme is not a singular arithmetic arrangement or a one-size-fits-all approach. Each site must be assessed on its merits.
10. The Tribunal acknowledges that there is more than one acceptable outcome for each site; however our role, like the role of the responsible authority, is to consider the planning policies and balance the competing interests in favour of net community benefit and sustainable development.
11. As both Mr McGurn and Mr Govenlock attested, increasing the setback at the upper level provides little improvement to an otherwise high quality design outcome. The photo montages and the 3D animation presented to us on behalf of the permit applicant, together with our own observations during multiple site inspections, confirmed that setting the building further back would achieve very little in terms of its visual presentation.
12. In our view, this is partly because of the topography of the land, the narrowness of Flinders Lane and the pedestrian views capable of being captured along Flinders Lane; because there are already significant buildings to the east and west of the review site, and finally because of the setback of the building from the street alignment with respect to the Richard Allen building to the east.
13. As we observed on our various site inspections, the buildings with setbacks in the order of 3-5 metres from the street frontage all appear to be well setback and sufficiently articulated to distinguish the podium levels from the tower elements.
14. We have considered in some detail the treatment of the south-west corner of the building. In this section there is no recess between the podium level and the tower element, due to the podium level being setback the full 4.93 metres from the street alignment.
15. We accept and believe this design treatment is quite appropriate in identifying and holding the corner of the building with Watson Place. It also assists in our view in the reading of the building and the design concept as a building turns a corner along the Watson Place abuttal.
16. We have come to the conclusion that the setback provided in this application with the high design response proposed is an acceptable response and we propose to delete the condition which requires the tower setback from podium to be further recessed.

1. As mentioned earlier, the treatment of the south tower element is a fritted glass panel proposed to be constructed in a series of alternating canted bays across the width of the façade. These bays are to be slanted alternatively 500mm in and 500mm out to reduce the reflectivity of the glass and provide an interesting, textured building façade.
2. Condition 1(v) requires revision to the southern façade of the tower element to provide greater articulation. It was submitted by Mr Canavan that this condition is essentially vague, meaningless, and therefore unnecessary.
3. It was submitted to the Tribunal that the building will appear from a distance as a glass enclosed structure and as a consequence of its fritted finish and the alternating cantered bays, will produce an even diffuse light from the tower element. This result means that at night time the building will avoid the traditional bands of light emanating from each of the office floor levels and emit a more even light that produces a backdrop for important buildings, such as St Pauls Cathedral, from key vantage points to the south. The evenness of the light will enhance the visual impacts of elements such as the cathedral spires.
4. During the day the building will appear as a finely modulated glass structure without the reflectivity that is normally associated with glass buildings.
5. We have had the benefit of expert explanation and evidence as to the effect these fritted glass panels will have on the building as a backdrop to other buildings. We are of the view that what is proposed is a highly sophisticated design response and further modification ought not be required.
6. The applicant itself further modified part of the southern façade element being a podium, in response to the Minister's concerns about articulation, and this is reflected in the consent orders.
7. As a consequence of the above we will delete the requirement of condition 1(a)(v).

Traffic circulation and relocation of vehicular ingress/egress

1. In relation to the traffic issues, it was submitted to us by a number of parties that the character of Flinders Lane east of Swanston Street is markedly different to that west of Swanston Street.
2. To some extent that observation is quite obvious, as Flinders Lane west of Swanston Street is contained within the retail core precinct in the planning scheme, whereas the area east of Swanston street, within which the review site is located, is outside the retail core precinct area.
3. More importantly perhaps is that in terms of the physical attributes of Flinders Lane east of Swanston Street right through to Spring Street, there is a greater emphasis on its function as a primary access route to basement and above-ground car park areas for both public and private developments. Many of these developments have their principle pedestrian access to the front of the buildings, fronting either Flinders Street or Collins Street.
4. In our opinion, an important consideration is that this site together with the adjoining and nearby buildings fronting the north side of Flinders Lane, do not provide any realistic foreseeable prospect of a continuous street activation potential. That is, immediately to the west is the brutal and austere rear fly tower of the Regent Theatre, with no possibility of activation to the Flinders Lane frontage, while to the east is the elevated floor level of the warehouse type building being the Richard Allen building, and further to the east is a partly uninviting rear of the T&G Building.
5. In addition, what is proposed here is a consolidation or reduction of the existing provision of three crossings into one concentrated crossing.
6. These factors alone, in our view tip the balance of competing interests in favour of permitting the vehicular crossing in Flinders Lane.
7. However, there are also a number of compelling reasons why vehicular access is better retained on Flinders Lane than in Watson Place.
8. The first of these reasons is the potential to activate not only the balance of the Flinders Lane frontage, but the potential to also activate the Watson Place abuttal and enhance pedestrian access along that laneway.
9. There are numerous references within the planning scheme to the objective of enhancing activation of Melbourne's CBD laneways. We were informed by both Mr McGurn and Mr Govenlock that perhaps the greatest improvement to the CBD pedestrian amenity over the last 20 years has been the activation of many of Melbourne's minor laneways. The Melbourne CBD is comprised of a grid system of inter-twined streets with laneways providing more direct, and often more stimulating pedestrian routes through the CBD.
10. The traffic evidence of both Ms Dunstan and Mr Hunt was that there was nothing to be gained by relocating the accessway to Watson Place. If anything the relocation of the accessway to Watson Place would compromise the functionality of the basement car park, during dump-in and dump-out periods associated with the Regent Theatre.
11. The opportunity to activate a large portion of the Flinders Lane frontage (the modified Flinders Lane ground floor abuttal results in a percentage of active frontage that is almost equal to that sought in the DDO3 objectives), together with the opportunity to activate much of the Watson Place abuttal results, in our opinion, a superior outcome.
12. The Tribunal was taken to Amendment C105, which seeks to amend the existing policy provisions as they relate to laneways. We are satisfied there is no inconsistency with those proposed policy changes and the location of an access way along this part of Flinders Lane.
13. Thus, we believe the access provision on Flinders Lane is on balance both acceptable and consistent with the outcomes sought in the planning scheme.

1. In summary we have found that
   1. The building is of high design quality; it is unnecessary to further modify the building form other than in the agreed manner in which the plans have been amended during the course of the hearing.
   2. The height of the podium level is acceptable as is the setback of the building from the Flinders Lane building alignment.
   3. The proposed access way from Flinders Lane is appropriate and the enhanced activation of both Flinders Lane and Watson Place are positive outcomes for this proposal.
2. Accordingly, the Tribunal allows the application for review in part and directs the grant of a permit subject to the conditions outlined in the Notice of Decision and modified by these orders.

[2] [2004] VCAT 37

[3] Prompting the Minister to relocate the access from Flinders Lane to Watson Place

[4] By substituting plans and amending the address of the subject land