PT Capitol Development Partnership Pty Ltd v Stonnington CC [2013] VCAT 1683

PT Capitol Development Partnership Pty Ltd v Stonnington CC [2013] VCAT 1683 - VCAT 2013 case summary — Zoe

[36]

Design standards that relate to street wall heights and building setbacks are included.
The Tribunal in the earlier application found that the building it approved was acceptable and met all the design objectives of DDO8 because:
- The proposal would positively contribute toward the preferred character for the site, Forrest Hill Precinct and activity centre more broadly in its design, contribution to the public realm and gateway/landmark qualities.
- The proposed development would be seen, as is the intended outcome, but would not be considered visually bulky because of the breadth and curvature of the main residential tower.
  - The design creates a distinctive and landmark built form outcome that distinguishes the site as a gateway while respecting the relationships with buildings on other corners of the Chapel Street/Toorak Road intersection, Como site and other interfaces.
  - The proposal emphasises the site as an important corner gateway consistent with local policy including through the podium form (as modified), active frontages and contribution to the public realm including planting.
  - The design has architectural quality and merit.
  - The shadow impacts on the public realm are within expected limits of change and wind impacts can be further assessed and resolved to an acceptable level through detailed design[6].
The Council submits that the amended proposal is inferior to the previously approved building and that it does not respond well to the design objectives of DDO8. The Council relied on the evidence of Mr Czarny and Mr Hutson in support of its submission. In broad terms, it is their evidence that several aspects of the approved building that contributed to its achievement of an "iconic" status have been lost in the amended application. It is their evidence that the "slender telescopic form" of the original has been lost. Consequently, it is their evidence that part of the justification for the height of the approved building no longer exists. The bulk and the mass of the tower has been increased beyond that which was originally approved, and in their view, this contributes to a building which has bulging corner elements in contrast to the receding effects of the approved elliptical shape. Mr Czarny described this effect as being like bulky, over scaled silos, and a building "pregnant with the increased yield". Mr Hutson described the amended proposal as an "essentially orthogonal tower with applied treatments".
While both witnesses acknowledged the design qualities of aspects of the amended proposal[7], it is their evidence that this is not a design that exhibits the care and finesse required to achieve the iconic, land mark qualities that the planning scheme calls for on this site.
The approach to be adopted by the Tribunal in the consideration of an application under S.87A has been the subject of several decisions of the Tribunal in recent years. In Bestway Group Pty Ltd v Monash CC[8], Deputy Gibson commented that it is important for the consideration of applications made under this section of the Act to address the substantive merits of the proposed changes. Deputy President Gibson observed that the reforms to the Planning and Environment Act 1987 by the introduction of Division 1A and section 87A enables amendment applications to be considered in a timely and efficient manner, by focussing on the proposed changes, rather than re-opening debate about the whole proposal[9]. More recently, Deputy President Gibson sitting with Members Naylor and Chase, considered an application under S.87A to amend plans for a development previously approved by the Tribunal. The nature of the amendments was reasonably significant. The Tribunal in that case relevantly commented as follows:

[38]

We agree with and adopt the principles articulated in E A H Batman and Bestway. While the views of the expert witnesses about the relative merits of the two proposals provide some interesting insights into the differing opinions of experts on the relative architectural merits of the two proposals, they are not particularly relevant to our consideration of the proposal before us. As the Tribunal commented in E A H Batman, our role is not to act as judges in a beauty contest comparing the qualities of the originally approved proposal with those of the amended proposal. Our role is confined to a consideration of the merits of the amended plans.
It is relevant however that both Mr Hutson and Mr Czarny are of the view that the amended proposal does not achieve a design or built form outcome that is acceptable having regard to the design objectives of DDO8.
In this respect it is Mr Czarny's evidence that while the ground level presentation and the podium is an acceptable response to the design objectives of DDO8, the tower element is not. It is Mr Czarny's evidence that the tower does not produce a sculptural and slender building outcome, because the footprint is the same at the top as it is at the bottom. Consequently, there is no reduction in massing or significant change in architectural treatment. Mr Czarny is concerned that the building will assume a large, sheer mass and will have an overbearing presence on the Chapel Street streetscape. Mr Hutson is similarly concerned that while the building will provide a gateway status of sorts, by virtue of its height and scale, the lack of sculptural quality in the building would diminish its gateway status, because it would not be distinguished from other larger sale forms in the general vicinity.
There is no significant dispute in this case about what the planning scheme seeks to achieve in terms of built form outcomes for this site. It is an important site being located at the gateway to one of Melbourne's Principal Activity Centres and it is part of the Forest Hill Precinct, one of the city's major urban renewal precincts. It is a site that the planning scheme has identified as warranting a building that achieves more than just another acceptable outcome.
At the core of the dispute in this matter therefore, is whether the building represented in the amended plans achieves the requisite degree of design excellence to achieve the design objectives of the DDO8.
As the Tribunal commented in EAH Batman referred to above, planning decision-making generally is about achieving acceptable outcomes rather than best or better outcomes. In this respect, we do not need to be persuaded that the proposal we are considering is the best or optimal outcome for the site in order for us to be satisfied that it is an acceptable outcome. Neither are we judges in a contest between the previous scheme and the one before us. However, we make this observation in the knowledge that the planning scheme does call for a building on this site that exhibits design qualities that lift it above the ordinary. It follows therefore that any consideration of what constitutes an acceptable outcome is contextual in nature. That is, it must involve a consideration of the site's particular physical and strategic context. Factors such as the prominence of the site, the importance of the site in terms of achieving planning objectives for the PAC and for Forest Hill, the physical constraints of the site, as well as the planning scheme objectives for the site, are all relevant to the decision about whether a proposal is acceptable.
We are satisfied that the design of the complex, as amended, continues to display architectural quality and merit.
- It will reinforce the site as a primary gateway to Forrest Hill Precinct.
- It will strengthen the legibility of the Toorak Road and Chapel Street intersection. Indeed, the transformation of the southern building into a largely residential development will result in 24 hour activity around it, rather than one limited to business hours. The retail uses and active street frontage sought by the planning scheme remain and will assist in the revitalisation of the two streets.
- The podium level, though differently configured, continues to complement the existing streetscapes of Toorak Road and Chapel Street. The increase in the length of the façade above podium level along Chapel Street, which is the result of the reconfiguration of the northern tower, alters but will not destroy the well resolved streetscape interface. The design proposed is one which will enhance both this part of Chapel Street and greatly improve the vehicular and pedestrian use of Almeida Street, and help 'knit' the development into the rest of Forrest Hill.
- It makes a significant contribution to urban consolidation, providing a range of high quality apartments.
- Whilst the amended tower design may not display the slender elegance of the former proposal, it remains a well considered and integrated whole. The revised form still has a sculptural outline and the increased setback from the ILK development to the west assists in differentiating the nothern tower from its neighbour, the increased spacing allowing it to be read as a singular element. It also improves the spatial relationship with the 'Vogue' tower on the east side of Chapel Street.
- A high level of architectural quality is also displayed in the proposed materials and finishes, which seeks to subtly differentiate and emphasise the curved corners of the tower. We acknowledge that the materials may be subject to further design refinement, but the evidence of Mr Poole gave us confidence that the design team realises the importance of "getting it right".
- We consider that the high level of internal amenity demonstrated by the orientation and configuration of the new apartments provides further evidence of the architectural merit of the proposal.
We conclude that the amended proposal is an acceptable outcome for the site, acknowledging that the context demands a quality outcome to mark and enhance this prominent and important intersection.

[39]

At the commencement of the hearing one of the objectors, Little Projects Pty Ltd, advised that subject to the inclusion of permit conditions it is content for a permit to issue. The permit applicant and the Council consent to the inclusion of the conditions. The conditions require very minor amendments to plans and we are therefore content to include them.
The applicant also seeks to amend other conditions in the permit. Some but not all of the amendments are related to the endorsement of the amended plans. The applicant circulated a set of the amended conditions and at the conclusion of the hearing we provided the Council and objectors with the opportunity to comment on them in writing after the hearing. The Council provided a written response and we have had regard to that response in preparing the conditions.
In broad terms the issues in dispute about the conditions relate to the possible staging of the development, and the off set of the cost of public works against any future public open space contribution that maybe required at subdivision.
We agree with the applicant that on a development of the scale proposed here, staging of the development is at least a realistic prospect. We have therefore included the applicant's proposed staging conditions which, subject to some minor rewording, also provide the Council with sufficient control to manage the implications of staging across the site. We note in this respect that the original permit is silent on the issue of staging. The applicant's proposed condition introduces a level of control over this issue currently lacking in the permit.
We have not included the condition requiring the cost of public works to be offset against a future public open space contribution. We are not persuaded that a sufficient nexus exists between the construction of works in the public domain required to be undertaken as part of the development of the land, and a public open space contribution required at the time of subdivision, to justify the inclusion of the condition sought by the applicant.
With respect to the provision of car parking, the Council accepts that the proposed provision is acceptable, with the exception that it requires visitor parking in accordance with the existing permit be retained. The applicant proposes to delete that requirement.
We are persuaded by the evidence of Ms Dunstan and Mr Hunt that the amended proposal is acceptable with respect to the provision of car parking (and other related matters) and the permit should be amended accordingly.

[67]

(a) Full work schedule/construction management plan for each individual stage to ascertain impacts on surrounding properties.

(b) Public/worker access and safety issues;

(c) Hours of construction activity (including at what stage "out of hours works" are proposed and what type of works are to be conducted outside the hours of operation;

(d) The location of hoardings, hoists and workers' amenities;

(e) The location of public precautions, loading zones, site sheds, materials, cranes and crane/hoisting zones, gantries and any other construction related items or equipment to be located in any street;

(f) Details as to how traffic and pedestrian safety and amenity will be controlled within the vicinity of the site and its surrounds;

(g) The provision of a traffic management plan, including detailed plans that show the areas required for and the nature of items to be placed on any street during all stages of construction in accordance with approval by the responsible Building Surveyor, entry and exit points for construction vehicles (including temporary and permanent vehicle crossings), traffic management during construction including road closures/road occupation/footpath closures, work zones/construction zones to accommodate vehicles and deliveries;

(h) Service connections/road and footpath openings and anticipated impact on public land during the connection of different services;

(i) Measures to be used to protect Council infrastructure from damage;

(j) Existing services and environmental management;

(k) A list of all environmental hazards that the activities on-site pose i.e.; contaminated soil, materials and waste, dust, stormwater contamination from run-off and wash-waters sediment from the site on roads, construction noise, hours of operation, vibration, washing of concrete trucks and other vehicles and machinery, spillage from refuelling cranes and other vehicles and machinery etc;

(l) Protection measures that will be undertaken to minimise the risk of the above hazards being realised;

(m) Regular monitoring/inspections of the above protection measures;

(n) Identification as to who will be responsible for managing all of the above issues; and

(o) Measures required for interim or temporary site management; including temporary site access; car parking provision; treatment and/or screening of vacant spaces;

[70]

All walls on or facing a boundary must be cleaned and finished to the satisfaction of the Responsible Authority prior to the approved development being occupied.
Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done at the cost of the owner and/or developer and subject to the relevant authority's consent.
All redundant existing crossings must be removed with footpath, kerb and channel reinstated at the permit holder's cost to the satisfaction of the Responsible Authority.
The vehicle crossings must be constructed to Council's standard vehicle crossing specifications to the satisfaction of the Responsible Authority.
All services to the site and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
Before the use of a particular stage allowed by this permit starts or by such later date as is approved by the Responsible Authority in writing, the landscaping works for that stage as shown on the endorsed plans must be carried out to the satisfaction of the Responsible Authority. Landscaping must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
Prior to the commencement of a particular stage of development a report for the legal point of discharge must be obtained from Council. A drainage design for that stage of the development must be prepared by a suitably qualified Engineer prior to a building permit being issued. The drainage must be constructed in accordance with the Engineer's design.
This Permit will expire if one of the following circumstances applies:
- (a) The first stage of development is not commenced within five years of the date of the amendment to this Permit, or;
- (b) The first stage of development is not completed within four years from commencement of the first stage;
- (c) Subsequent stages of development are not completed within four years from the completion of the first stage of development;
- (d) The use is not commenced within two years from the date of completion of the particular stage in which the use is located.

At a glance

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Judgment (83 paragraphs)

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Legislation Cited (2)

Cases Cited (1)

PT Capitol Development Partnership Pty Ltd v Stonnington CC [2013] VCAT 1683 (27 September 2013)