Victorian Civil and Administrative Tribunal|2010-10-12

Peddlethorp Architects v Melbourne CC [2010] VCAT 1694 (12 October 2010)

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit. Capital City zone. Design & Development Overlay (DDO1 & 56). Clause 52.07 Loading and unloading of vehicles. 21 storey building providing serviced apartments. Ambit of discretion. State and Local Planning Policy Framework. Zone Purposes. Built form abutting CBD Lanes. Amenity.

Peddlethorp Architects on behalf of Brady Jones Pty Ltd.

Peddlethorp Architects v Melbourne CC [2010] VCAT 1694

Leave is given to the applicant to substitute for the permit application plans, the following plans filed with the Tribunal:

The decision of the Responsible Authority is set aside.
In permit application Tp-2009-587 a permit is granted and directed to be issued for the land at 113-115 Little Lonsdale Street, Melbourne in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
- The demolition of a building, the construction of a building and the construction and carrying out of works.

Mr Pitt called Mr A Hutson, architect and Ms R Hansen, town planner of the Hansen Partnership.

Mr T Wallwork of counsel instructed by Toby Hayes, Corporate Solicitor, City of Melbourne.

Demolition of a building and the construction of a 21 storey building. The ground floor is proposed to be used for a retail tenancy and café/restaurant. The balance of the building is proposed to be used as accommodation incorporating 92 serviced apartments.

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit.

Clause 37.04 Capital City Zone Schedule 1 Outside the Retail Core.

Clause 43.02 Design and Development Overlay Schedule 1 (Active Street Frontage Capital City Zone) and Schedule 56 (CBD Lanes Class 1 and Class 2).

Clause 37.04-4 and Clause 3.0 of Schedule 1: A permit is required to construct a building or construct or carry out works.

Clause 43.02-2 and Schedule 1 and 56: A permit is required to construct a building or construct or carry out works.

The site is located on the south side of Little Lonsdale Street, about 60 m west of the intersection with Exhibition Street. The site abuts Jones Lane which runs along the western side of the site. The site has a frontage of 8.67 m and a depth of 21.34 m. The site has an area of 185 m2. A two storey brick, warehouse (currently used as an office) occupies the site.

To the south of the site there is a small access way (Corporation Lane 0106), beyond which the site abuts the rear of 265 Exhibition Street, a 34 storey residential building (Marriot Regency Towers).

The first eight levels of this building comprise a podium car park. Apartments in this building face the review site. To the east, the site abuts a three storey warehouse building. To the west, on the opposite side of Jones Lane is the heritage listed Wesley Church and Wesley Central Mission complex. A permit has been issued by Heritage Victoria for the redevelopment of this site, comprising partial demolition, and the construction of a 21 storey building.

The northern side of Little Lonsdale Street directly opposite the review site is occupied by a recently constructed 30 level residential building. Two and three storey commercial buildings flank this development.

Peddlethorp Architects applied to the Council for a permit to construct a 21 storey building comprising ground level retail and café/restaurant, and 92 serviced apartments on the land at 113-115 Little Lonsdale Street, Melbourne.
A permit is required for this proposal under various provisions of the planning scheme, as detailed elsewhere in this decision. There is however no third party objection or appeal rights under any of the planning scheme provisions. The Council did however receive a large number of objections to the application[1].
The Council considered the application and resolved to refuse to grant a permit on the following grounds:

The proposal by virtue of its height and lack of setbacks detracts from Jones Lane and Corporation Lane 0106 and would be contrary to Clause 22.01 (Urban Design Outside the Capital City Zone), Clause 22.20 (CBD Lanes) and Clause 43.02 Schedule 56 (CBD Lanes - Class 1 and 2) of the Melbourne Planning Scheme.

The proposal by virtue of its height and lack of setbacks detracts from Little Lonsdale Street and surrounding properties and would be contrary to Clause 22.01 (Urban Design Outside the Capital City Zone) and Clause 37.04 - Schedule 1 (Capital City Zone - Outside the Retail Core) of the Melbourne Planning Scheme.

The proposal by virtue of its proximity and lack of setbacks detracts from the amenity of the residential properties at 265 Exhibition Street Melbourne and would be contrary to Clause 37.04 - Schedule 1 (Capital City Zone - Outside the Retail Core) of the Melbourne Planning Scheme.

The permit applicant has applied to the Tribunal to review the Council's decision.
The issues in dispute in this matter can be categorised under the following heading:
1. Does the proposal achieve an acceptable built form outcome having regard to the context of the locality and the policy context?
2. Does the proposal contribute to unreasonable amenity impacts?
Having considered the submissions and evidence, and having undertaken an inspection of the site, its environs and the apartments in the neighbouring building, we have concluded that a permit should issue for this proposal.
The proposal will make a positive contribution to the character and amenity of Little Lonsdale Street and of the abutting laneways. We are also satisfied that the proposed building responds appropriately to the mixed character of this locality. A strict adherence to policies which encourage a podium - tower typology is neither achievable nor warranted in this case. Similarly we are satisfied that the design of this proposal has successfully met the specified tests which are required to be applied when a reduction to the tower separation policy is sought. Consequently the proposal will not give rise to unacceptable amenity impacts having regard to the planning scheme provisions which encourage this form of development in this locality. The amenity expectations of residents living within a central city context must be informed by those planning scheme provisions.
Our reasons are set out below.

Does the proposal achieve an acceptable outcome having regard to the built form context of the locality and the policy context?

The Council submitted that this proposal, incorporating a 21 storey tower without a podium or setbacks is not supported by the Council's local policy framework, or by the physical context of the locality.
Mr Wallwork submitted that the relevant policy framework provides clear direction as to the form and typology of new development which is encouraged within central Melbourne[2]. The building typology encouraged by the policy framework incorporates tower elements above a 35m to 40m podium, with the towers setback at least 10m from street frontages. The policy also encourages development above 45m to be set back 24 metres from any surrounding podium - tower development. It was acknowledged however that the policy does stipulate that 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.
The Council submitted that the failure of this proposal to adopt the podium - tower typology has the effect of creating an overpowering building which will disrupt the pedestrian experience in this locality, and does not create or maintain a built form which reinforces the human scale of this urban context.
The Council also relied on the provisions of DDO56 in support of its refusal of the application. The design objectives of the DDO are:

To maintain and enhance the pedestrian amenity of the Central Business District's Class 1 and Class 2 lane ways.

To manage future development along the Central Business District's Class 1 and Class 2 lane ways to maintain or create a built form that reinforces the human scale and relates to the prevailing building height along the lane wall.

The DDO contains requirements relating to building height along lane walls, setbacks and interfaces. Where these requirements are met a permit is not required for buildings and works under the DDO[3]. It was common ground between the parties that the building height, setback and interface requirements cannot be achieved on the review site because of the site's area and dimensions. It was also common ground that the discretion exists under the overlay to vary the requirements but that regard must be had to the design objectives and decision guidelines of the overlay[4].
We acknowledge the policy support for the podium - tower building typology contained within the planning scheme. This building typology however is not the only typology which can be contemplated for every site within the central city. The objective of creating or maintaining pedestrian amenity and mitigating unwanted wind effects are capable of being achieved without relying on the use of podiums. The discretion available under the planning scheme to vary the provisions of the DDO56 and the policy framework reflects the reality that not all towers require a podium treatment. Objective 2.2 of the Guidelines for High Density Residential Development[5] does advocate the use of setbacks and podium treatments, but it also states that taller buildings without a podium level create a dramatic urban form and this may be appropriate on some sites where the local context can support this approach. The context of this site allows such an approach to be taken.
We have reached this conclusion having regard to the following:
- Developments of the scale and height of this proposal are supported in the central city by the policy framework and the provisions of the planning scheme. While the existing scale of development in Little Lonsdale Street is typically characterised by low rise, commercial buildings, it is evident that this locality is undergoing significant change with tower developments emerging. This is an outcome specifically contemplated by the planning scheme.
- The podium - tower building typology is not capable of being achieved on this site having regard to its dimensions and area. We agree with Ms Hansen's evidence that this typology is more appropriately applied to larger sites and to sites located on central Melbourne's major streets. It is not a typology which has been uniformly applied within central Melbourne[6].
- The proposal achieves the desired effect of a podium by creating active street frontages at ground level and through the use of materials, incorporating a glazed lower three levels with the upper levels incorporating very different architectural detailing and composition. This approach successfully differentiates the base from the tower levels above.
- This proposal will enhance the existing pedestrian experience in Little Lonsdale Street primarily through the activation of the street frontages and the glazed lower levels. The lack of a setback for that part of the building located above a podium height of 40 m makes no appreciable difference to the pedestrian experience. We agree with Ms Hansen's assessment that an additional 27 m of building height above a 40 m podium does not create a building of such mass and bulk as to compromise the planning scheme's polices and objectives.
- Ms Hansen advised us that a Wind Tunnel Model study has been undertaken for this proposal and that the study concluded that the criterion for walking comfort for all wind directions is achieved. The Council did not dispute the findings of the study.
- The proposal will not overshadow public parks and gardens, public squares or major pedestrian routes. The Council was content with this aspect of the proposal.
Jones Lane is classified as a Class 2 Lane pursuant to Clause 22.20 of the Local Policy Framework[7]. The policy classifies lane status on the basis of the extent to which lanes exhibit the following core values:

Connectivity - The provision of a physical connection through a city block.

Active frontages - Building frontages that provide for visual and physical interaction between the public space of the lane and the ground floors of the buildings.

Elevational articulation - the architectural character of the buildings adjoining the lane and the degree to which this provides aesthetic and spatial interest to the public realm.

Views - views from the lane's public realm towards a connecting lane, street or landmark

Class 2 lanes show signs of three out of the four core value characteristics. The character and/or function of these lanes are significant and require protection.
The objectives and policy outcomes specified in Clause 22.20 are in broad terms reflected in the provisions of DDO56 and as we have discussed previously the building height, setback and interface requirements of DDO56 cannot be achieved on the review site.
We are satisfied however that the proposal does achieve the design objectives of the DDO56 and the policy at Clause 22.20 all of which are directed at retaining lanes and enhancing their function and amenity.
In arriving at our conclusions on this point we are influenced by Ms Hansen's assessment that Jones Lane would at best achieve two of the four values (connectivity and views) and cannot realistically be regarded as a Class 2 Lane. We agree with that assessment. The Lane currently provides a very low level of pedestrian amenity. There are no active frontages and the elevational articulation in the built forms abutting the lane is limited. This proposal creates an active street frontage and a street address to Jones Lane. Elevational articulation through the use of glazing and architectural features at the lower levels and the differentiation of the upper levels successfully achieves the outcomes sought by the planning scheme. The height of the building relates to the prevailing building height along the lane wall[8].

Does the proposal contribute to unreasonable amenity impacts?

The Council submitted that the failure of the proposal to adopt a podium - tower building typology, incorporating a 24m separation between developments above a 45m height, contributes to negative amenity impacts on residents of the abutting Regency Towers. These impacts include overlooking, noise, loss of light and views.
The Council relied on the lay evidence of Ms Capp in support of their submission.
As we have discussed previously, the policy at Clause 22.01 also provides for tower separations to 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.
The Council acknowledged that the proposed apartments have been treated through the location and orientation of balconies and habitable room windows to reduce amenity impacts, but submitted that the 6.1m (approx.) separation is not adequate.
Ms Hansens's evidence demonstrated to our satisfaction that the proposed building has been designed to ensure that habitable room windows do not directly face habitable room windows in the Regency Towers. The proposed building is also offset to the extent that it is aligned with the western edge of the Regency Towers. The apartments most directly affected are limited to those located on the western edge above the car park podium. These apartments enjoy a western and northern orientation.
In terms of assessing the extent of the impact and whether it is unreasonable or not, it is necessary for us to say something about the assessment of amenity impacts in a central activity centre context. This is an issue which the Tribunal has commented upon many times. Mr Pitt referred us to the decision of the Tribunal in Staged Developments Australia v Minister for Planning, Heritage Victoria & ors[9] which contained a detailed discussion about what constitutes reasonable amenity expectations for residents in a central city context. Ms Hansen referred to a decision of the Tribunal in Calabro Pty Ltd v Melbourne CC [10] which reached the same conclusions about amenity expectations in a central city context. In that decision the Tribunal said;

We agree with Mr Borelli's summation of the amenity issues raised by resident objectors that residents in the Capital city Zone cannot expect the same type of amenity standards that exist if the development was located in a Residential 1 Zone in the suburbs of Melbourne.

We note that the Council's Municipal Strategic Statement (MSS) also recognises that the types of amenity to be enjoyed by residents are different in different parts of the city[11].
We acknowledge that some north facing apartments in Regency Towers will experience a loss of views as a consequence of the construction of a 21 storey building at 113-115 Little Lonsdale Street Melbourne. The views will not however be obliterated due partly to the dual orientation of the directly affected apartments.
We must balance this impact against the raft of planning scheme provisions and policies applicable to this locality and which influence the development of land in the Capital City Zone[12].
Having regard to our findings about the policy framework and zone provisions applying to this site, we are unable to conclude that the extent of the loss of views resulting from the construction of this development, is a factor which ought to constrain in any significant way the development of the review site.
The proposal will also impact on the level of daylight available to the directly affected apartments. We accept Ms Hansen's evidence that the affected apartments will continue to receive a level of daylight which is acceptable in a central city context. We note that we were not presented with any contrary expert evidence on this point.
The Council also submitted that the proposal's failure to adopt a podium - tower typology will also adversely impact upon the development potential of adjoining lots. The Council referred specifically to the site on the western side of Jones Lane which is separated from the review site by a distance of about 5.5m.
As we have discussed previously we agree with Ms Hansen that the podium - tower typology has limited practical application to sites in central Melbourne's "little streets" and it has not been universally applied in those contexts. The availability of discretion to vary the standard typology ensures that sites are and will continue to be developed in these streets in a form which does not include podiums and set back towers. We are not persuaded that the failure to provide upper level setbacks or the 24 m tower separation on this site compromises the development potential of adjoining lots.

It follows from the above reasons that it is our conclusion that the decision of the responsible authority should be set aside and a permit be granted.
In deciding the conditions to be included on the permit we have had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.

Conditions to be included in permit TP-2009-587

Prior to the commencement of any demolition, bulk excavation, construction or carrying out of works on the land, the applicant must submit to the Responsible Authority three copies of plans drawn to scale generally in accordance with the plans substituted by the Victorian Civil and Administrative Tribunal but amended to show:
- (a) return of webforge on the east elevation as shown on amended plans received 17 August 2010;
- (b) any amendments required for waste storage and collection in accordance - with the Waste Management Plan required by condition 5;
- (c) location, dimension and nature of all projecting building and architectural elements beyond the title boundaries on all levels, elevations and sections;

These amended plans must be to the satisfaction of the Responsible Authority and when approved shall be the endorsed plans of this permit,

The development as shown on the endorsed plans must not be altered or / modified without the prior written consent of the Responsible Authority.
A schedule and samples of all external materials, colours and finishes must be submitted to the satisfaction of the Responsible Authority prior to the commencement of the development, excluding demolition. The schedule must show the materials, colours and finishes of all external walls, roof, fascias, window frames, glazing types, doors, balustrades, fences and paving, (including car park surfacing), outbuildings and structures, All finishes and surfaces of all external buildings and works, including materials and colours, must be in conformity with the approved schedule to the satisfaction of the Responsible Authority.
Prior to the commencement of construction a Waste Management Plan detailing waste storage and collection arrangements must be submitted and approved to the satisfaction of the responsible authority. The waste storage and collection arrangements must not be altered or modified without the prior consent of the responsible authority
Prior to the commencement of the development hereby approved (excluding bulk excavation), a Phase 2 Environmental Assessment must be submitted to the Responsible Authority indicating the extent and nature of any contaminated materials on site to the satisfaction of the Responsible Authority.

Should the Phase 2 Environmental Assessment conclude that an Environmental Audit is necessary, prior to the commencement of the buildings/works hereby approved the applicant must provide:

(a) a Certificate of Environmental Audit in accordance with Section 53Y of the Environment Protection Act 1970; or

(b) a Statement of Environmental Audit under Section 53Z of the Environment Protection Act 1970. This Statement must state that the site is suitable for the use and development allowed by this permit.

Should a Statement of Environmental Audit be required, any conditions of the Statement must be complied with to the satisfaction of the Responsible Authority prior to the occupation of the development hereby approved. Written confirmation of compliance must be provided by a suitably qualified environmental professional or other suitable person acceptable to the Responsible Authority. In addition, sign off must be in accordance with any requirements in the Statement conditions regarding verification of works. If there are conditions on a Statement of Environmental Audit that the Responsible Authority consider require significant ongoing maintenance and/or monitoring the applicant must enter into a Section 173 Agreement under the Planning and Environment Act 1987.

All garbage and other waste material must be stored in an area set aside for such purpose to the satisfaction of the Responsible Authority.
No garbage bin or waste materials generated by the permitted use shall be deposited or stored outside the site and bins must be returned to the garbage storage area as soon as practicable after garbage collection.
Prior to the demolition hereby permitted, the permit holder must satisfy the Responsible Authority that substantial progress has been made towards obtaining the necessary building permits for the development of the land generally in accordance with the development of the land proposed under this permit.
Prior to the commencement of the development, including demolition or bulk excavation, a detailed construction and demolition management plan must be submitted to and be approved by the City of Melbourne - Construction Management Group. The construction management plan is to be prepared in accordance with the City of Melbourne - Construction Management Plan Guidelines and is to consider the following:
- (a) public safety, amenity and site security;
- (b) operating hours, noise and vibration controls;
- (c) air and dust management;
- (d) stormwater and sediment control;
- (e) waste and materials reuse; and
- (f) traffic management.
Prior to the commencement of the development, plans/details showing treatment to the habitable rooms windows/openings to limit internal noise to a maximum of 45dB(A) in accordance with relevant Australian Standards must be submitted to the satisfaction of the Responsible Authority.
Glazing materials used on all external walls must be of a type that does not reflect more than 15% of visible light when measured at an angle of 90 degrees to the glass surface, to the satisfaction of the Responsible Authority.
Mailboxes and newspaper receptacles must be provided prior to the occupation of the development, including an additional mailbox for the body corporate if and when the development is subdivided, to the satisfaction of the Responsible Authority.
Any satellite dishes, antennae or similar structures associated with the development must be designed and located at a single point in the development to the satisfaction of the Responsible Authority, unless otherwise approved to the satisfaction of the Responsible Authority.
No architectural features and services other than those shown on the endorsed plans shall be permitted above the roof level unless otherwise approved in writing by the Responsible Authority. All services must be sited and suitably screened so as not to minimise visual impact to the satisfaction of the Responsible Authority.
There must be no air conditioning units or other permanent structure located to the balconies unless screened to the satisfaction of the Responsible Authority.
All service pipes, apart from roof down pipes, must be concealed from the view of a person at ground level within common areas, public thoroughfares and adjoining properties.
No advertising signs shall be erected, painted or displayed on the land without the permission of the Responsible Authority unless in accordance with the exemption provisions of the Melbourne Planning Scheme.
Any requirement to temporarily relocate street lighting should be first approved by the Responsible Authority.
Any projections must be drained to a legal point of discharge in accordance with plans and specifications approved by the Responsible Authority
A legally binding agreement under Section 173 of the Planning and Environment Act 1987 should be entered into between the land owner(s) and the Council regarding the-projections over the street alignment of Little Lonsdale Street greater than 300mm to the satisfaction of the Responsible Authority. The Agreement is to indemnify Council against any claims arising from the existence of the projection. The Agreement should require the Owner to maintain and keep 'in good repair the projection at its cost and to the satisfaction of Council whether or not the need for maintenance or repair of the structures arose from the act, neglect or default of the owner. The Agreement should refute any future adverse possession claims over the space occupied by the projection. The owner must pay all of Council's reasonable legal costs and expenses of this Agreement, including Land Titles Registration fees.
The owner of the subject land should construct a drainage system, incorporating water sensitive urban design, within the development arid make provision to connect this system to Council's stormwater drainage system in accordance with plans and specifications first approved by the Responsible Authority - , 1Engineering Services.
The owner of the subject land will not be permitted to alter the existing footpath/road levels in Jones Lane and Little Lonsdale Street for the purpose of constructing new vehicle or pedestrian entrances without first obtaining the written approval of the Responsible Authority.
This permit will expire if one of the following circumstances applies:
- (a) the development is not started within two years of the date of this permit.
- (b) the development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

[1] The Tribunal constituted by Mrs Rickards, a senior legal member, considered an application in March 2010 to grant leave to a number of objectors to make submissions to the Tribunal opposing the grant of a permit. The application was contested by the applicant for review. Mrs Rickards by Order dated 29 March, 2010, refused to grant leave for the objectors to make a submission to the Tribunal.

[2] Clause 22.01 Urban Design within the Capital City Zone.

[3] Clause 2.0 of schedule 56 to the DDO.

[4] The decision guidelines at Clause 4.0 of schedule 56 state;

Before deciding on an application, in addition to the decision guidelines listed at Clause

Whether tower forms are generally concealed from the view of a pedestrian within the

[5] Design Guidelines for Higher Density Residential Development (Department of Sustainability and Environment 2004). Pursuant to the State Planning Policy Framework this is a document to which Planning and responsible authorities should have regard.

[6] Ms Hansen referred to the example of the Queen Victoria development on the north east corner of Little Lonsdale and Russell Streets, where a change in materiality has been adopted to visually differentiate the base of the building from the glass tower above.

[7] Corporation Lane 0106 also appears to be classified as a Class 2 Lane on the basis of the plan which forms part of the policy at Clause 22.20.

[8] We note in this respect that the Marriot Regency Towers which also abuts the lane to the south of the review site, rises vertically from the lane edge up to 34 storeys, with minimal setbacks above the 8 storey car park podium.

[10] VCAT Reference: P335/2003, 21 October 2003.

[11] Table 3 of Clause 21.04 refers to a hierarchy of land use amenity principles based on the zoning of land.

[12] This is a principle which has been adopted, applied and reinforced consistently by the Tribunal over many years. See for example Juliano, Furletti and Scott and Ors v Melbourne CC (1999/19285), VCAT reference No. P2719/2006 Investa Properties Pty Ltd v City of Yarra (May 2007), 139 Chetwynd St Pty Ltd v Melbourne CC [2004] VCAT 44 and Stanley Street PL v Melbourne CC [2004] VCAT 928. The Tribunal in the aforementioned Staged Developments Australia v Minister for Planning, Heritage Victoria & ors, also considers the specific issue of loss of views in a central city context_._

Environment Act 1987

Peddlethorp Architects v Melbourne CC [2010] VCAT 1694

At a glance

Court

Decision date

Source

Judgment (61 paragraphs)

Peddlethorp Architects v Melbourne CC [2010] VCAT 1694 (12 October 2010)

Peddlethorp Architects v Melbourne CC [2010] VCAT 1694 (12 October 2010)

Parties

Legislation Cited (2)