Victorian Civil and Administrative Tribunal|2008-10-22|Before: Mr J, Dr P

Ryssal Three Pty Ltd v Stonnington CC [2008] VCAT 2113 (22 October 2008)

Section 79 of the Planning and Environment Act 1987; Stonnington Planning Scheme; Mixed Use Zone; Multi Storey Building; Supermarket; Discount Department Store; Building Scale/Mass; Chapel Vision Structure Plan; Urban Design; Public Interface; Traffic; Flooding.

Ryssal Three Pty Ltd v Stonnington CC [2008] VCAT 2113

The two booklets of plans dated August 2008 are substituted as the application plans in permit application no. 10/08 and in this proceeding.
By close of business on Friday 14 November 2008, the Applicant may prepare an amended east (River Street) elevation and other changes to respond to the Tribunal's directions contained in the conclusion to these reasons. Amended plans, any associated documents and any accompanying submissions must be filed and served by the Applicant using the form appended to these reasons. Service is required on the Responsible Authority, all persons originally notified of the permit application, and all parties to this proceeding. A statement of service must be filed with the Tribunal.
By close of business on Friday 12 December 2008, any person may submit to the Tribunal submissions in writing in relation to material filed by the Applicant. A copy of any submission filed with the Tribunal must be served at the same time on other parties to this Application for Review.
Any party to the Application for Review may request that the proceeding be brought on for a further hearing in order that submissions may be made orally. Only if a request for a further hearing is expressly made, or otherwise if the Tribunal of its own volition determines that a further hearing is required, will a further hearing be directed. Otherwise, the Application will be decided on the basis of all written and oral submissions presented at the Hearing on 6-9 October 2008 (and statements of grounds filed prior to that time) and the supplementary material filed in accordance with the above directions.

Mr J Gobbo QC and Ms E Porter of counsel instructed by Minter Ellison lawyers. Evidence was given by:

Ms A Ring, town planner.
Mr M Sheppard, urban designer.
Mr D Morrison, urban designer.

Mr C Wren SC (Days 1, 2 and 4) & Mr A Finanzio of counsel instructed by Moray & Agnew lawyers. Evidence was given by:

Mr B Shaw, project architect.
Mr A Hutson, architect.
Mr T Biles, town planning/urban design consultant.
Mr J Govenlock, town planner.
Mr J Walsh, traffic engineer.
Dr R Wulf, landscape architect.

Statements of evidence by Mr M Thompson, engineer (environmental sustainability), Mr T Candalepas, acoustic engineer, Mr A Dimasi, economic consultant, and Ms S Slicer, with respect to photomontages, were filed. None were called to present their evidence and no party sought to cross-examine them.

Mr A Walker & Ms A Skipper of DLA Phillips Fox lawyers for VicRoads (Days 1 and 2). A statement of evidence by Mr H Turnbull, traffic engineer, was circulated prior to the hearing but he was not called to present his evidence[2].

Mr L Eisen for Scandia Jewellery Pty Ltd and L & N Ejenbaum.

Dr P R Coulter in person and for Ms H Coulter (Days 1 and 2).

Construction of a large mixed use development comprising retailing, residential townhouses, residential apartments and home offices. The building podium sits atop three levels of basement car parking (991 spaces including 237 public spaces). The podium includes a supermarket (4,300m2), discount department store (7,828m2), two cafés, and specialty shops (3,825m2) across two levels. The arcade is entered from Chapel Street and via a link with the adjacent Como Green. A lobby for the residential uses is provided near to the corner of Chapel/Malcolm Streets. Recreation facilities are at level 2. Three level townhouses/home offices face Malcolm Street. A loading dock, internalised in the building, is accessed from River Street. There are multiple access points to the basement separating residential and commercial usage. Two residential towers are proposed above the podium, one is a similar height as the Armytage Apartments and the other is 27 storeys. A total of 164 dwellings is proposed including home offices.

Mixed Use Zone, Environmental Audit Overlay and Land Subject to Inundation Overlay.

Clauses 32.04, 44.04[3], 45.03, 52.06, 52.11 and 52.29.

Clauses 11, 12, 14, 15.12, 16.02, 17.01, 17.02, 18.02, 18.03, 19.03, 21, 22.02, 22.05, 22.06, 22.09, 22.12, 22.13, 22.15, 52.06, 52.07, 52.29, 52.34, 52.35, 52.36 and 65.

The review site is 1.47ha and bounded by Chapel, Malcolm and River Streets. The fourth boundary is to Como Central separated by a major drainage easement. A basement car park is in construction (Stage 1 Permit 1208/04). The land falls by 3.6 metres from the north-west to the south east. Obligations of a section 173 agreement include a 20% contribution for traffic signals at Malcolm/Chapel Streets and 237 public parking spaces.

Properties in River Street are mainly two storey commercial uses. To the north is Mirvac's SY21 residential development. To the south is Como Central with its raised Green and then the Armytage and Lonsdale Apartments. Chapel Street is managed by VicRoads.

The Tribunal inspection occurred on 9 October 2008.

This proceeding is about a major, landmark, proposal on perhaps the largest development site in the City of Stonnington. The land is the last parcel of that associated with the former Chia/Como project. On over 1.4 hectares, in a principal activity centre, with a Chapel Street address, a development has the potential to make a major contribution to the planning policies and strategies being pursued by the Stonnington City Council for this dynamic area. A development on the site is not, however, without significant complexities, not least those associated with three street frontages and an abuttal to Como Green that is elevated above the Prahran main drain. These strategic planning and physical considerations provide the main focus of our review. The Application before the Tribunal was made by Ryssal Three Pty Ltd against the Council's failure to decide upon the application within the prescribed time.[4] It seeks the issue of a permit for the proposal.
The Council has determined not to support the proposal on multiple grounds. Its evidence in this proceeding is consistent with respect to the acceptability of the design in terms of the overall height and scale of the podium, and mid rise and high rise towers. Its evidence is also substantially consistent with respect to various urban design concerns focussed on the proposal's relationship to River Street, permeability through the site, the relationship to Como Green, and the need for public open space. While two witnesses called by the Council consider a permit should issue subject to changes, one witness considers the proposal is flawed to the extent that comprehensive redesign would be needed. The Council's case requested an interim decision to allow some redesign or, if not, refusal.
Respondent Objectors have identified their concerns about the scale and extent of the proposed development in terms of its height, visual impact and relationship to other sites including Como Green and River Street, and a lack of open space. They have expressed concern about potential impacts on residential and commercial properties in the area (overlooking, overshadowing and increased noise), additional traffic and parking in nearby streets (including River Street and Tivoli Road), loss of on-street parking, loading off River Street, traffic hazards for pedestrians, wind and litter. The capacity of infrastructure to accommodate this and other development in terms of stormwater and drainage was a further issue.
Having considered all submissions and evidence, assisted by our inspection, we will afford the Applicant an opportunity to prepared revised plans to address our concerns. In setting out our reasons, we do not recite all of the material tendered as all documents are retained on the Tribunal's file.

What is the planning context for the assessment of this proposal?

The site's planning context is an important consideration in the Tribunal's determination of this proceeding. The review site is within a Mixed Use Zone and, through various policies contained within the Stonnington Planning Scheme, forms part of the Chapel Street principal activity centre[5]. Four themes are particularly relevant to our consideration of this proposal.
First, within the activity centre hierarchy, Chapel Street is a regional centre with local and regional roles including larger scale retail uses. The local policies promote higher density housing in and around activity centres, improved accessibility to and within commercial areas particularly the larger activity centres, consolidated commercial land uses within the boundaries of activity centres, and offices and housing in mixed use zones. These policies are part of the Council's broader housing strategies that nominate targeted areas for housing growth. Clause 22.09 states Group 1 centres cater for regional retail, office and service activities and needs and large scale/regional facilities are to be discouraged in lower order activity centres.
Second, and related to the above, non-residential uses are directed to locate in commercial areas and home office uses are encouraged in residential areas where they will not affect amenity[6]. There is, also, a focus on protecting the amenity of existing residents[7], particularly those close to commercial areas and affected by the intrusion of traffic, parking and noise. Parking and traffic local policies assist with decision making[8].
Third, policies for the urban environment and character encourage, among other things, high quality and energy efficient design that contributes positively to the character of the municipality and enhances its public spaces, streetscapes and gateway localities[9]. Arterial roads with a high proportion of medium density housing, principal activity centres, and large sites are locations where higher built forms are supported. The review site meets all of these criteria and is a strategic redevelopment site[10]. It is policy at Clause 22.09 that the scale of development be consistent with maintaining the commercial centres hierarchy. Clause 22.02 addresses Chapel Street/Toorak Road and the preferred height and setback for the review site (part of precinct D) is in accordance with any planning permit issued in the area. The policy for large sites, as is the case here, is that higher scale development be encouraged if the applicant has demonstrated satisfactorily that:
- The proposed development is consistent with the role and character of the area or will stimulate the restructure of surrounding land.
- Buildings are designed to reflect and complement the built form character of the surrounding area.
- Buildings are scaled down to integrate with any abutting residential properties.
Forrest Hill, opposite the review site on the west side of Chapel Street, is specifically identified as a location for higher density housing and more intensive development on larger sites. We note proposed Amendment C58, that is currently before an independent panel, would revise and replace existing local policies and provisions with respect to that area and would allow substantial development.
Fourth, limitations resulting from infrastructure, notably drainage, are recognised with a local policy to assist in the assessment of permit applications[11].
Our consideration is further assisted by design guidelines referred to in the Scheme including the Guidelines for Higher Density Residential Development, Activity Centre Design Guidelines and Safer Design Guidelines for Victoria (all Department of Sustainability and Environment). As relevant to the current proceedings, these guidelines have common themes with respect to connectivity and permeability between neighbourhoods and activity centres so as to maximise activity and surveillance with the aim of improved amenity, vibrancy, perceptions of safety and sense of community. Active uses are sought along street frontages. Related to these matters is the design of public spaces and street edges, such as footpaths, where sightlines should be maintained, expanses of blank wall should be minimised or avoided, weather protection should be provided, small scale uses should be incorporated around large stores and malls, and loading bays should be away from public spaces.
Chapel Vision is the Council's adopted structure plan for the principal activity centre[12]. We do not intend reciting all of the details of this plan, to which we have had regard. We highlight its focus on expanding the retail offer including supermarket and larger format retailing, accommodating housing growth and greater dwelling diversity, expanding pedestrian networks, enhancing liveability, and improving safety and security. Chapel Vision supports the presence of high rise buildings north of Toorak Road and identifies the potential for a full-line supermarket on the review site or other nominated sites. The extent of new development anticipated north of Toorak Road is to be complemented by enhanced pedestrian friendly environments and improved retailing and employment[13].
The review site is in an area identified by Chapel Vision as key change area and one of "substantial change" - where significant amounts of new development can be accommodated and where there may be substantial changes from the form and character of existing development. Despite that second arm of the descriptor of the substantial change area, the preferred maximum building height for the review site and some nearby land is "38 metres 10 levels with setbacks"[14]. We return to this again later. Related to the identification of the land as an area of substantial change are tempered expectations with respect to off-site impacts. One example to demonstrate this is policy minimising overshadowing on active solar collecting devices on adjoining buildings excluding areas where substantial change in built form character is envisaged[15]. Pedestrian priority and public open spaces are nominated through the review site to Como Green together with key viewlines. The site is not an identified gateway[16]. Another important aspect of Chapel Vision as relevant to this dispute is the nomination of River and Malcolm Streets as a traffic by-pass[17].
Having regard to the above, there can be no doubt that the review site presents opportunities to achieve outcomes sought by planning policy and, although a development must respond suitably to its context, a substantial built form presence that departs from the existing physical character is expected. Critical to the achievement of an acceptable outcome will be the way in which a development integrates with its setting and the public realm.

Few submissions were made to the Tribunal with respect to the land use components in the proposal although these matters were more vigorously pursued in objections to Council. We address this question briefly.
It is self-evident from the planning framework to which we have referred that the inclusion of high density housing in the proposal is strongly supported. The mix of housing types will add to the diversity of housing opportunities in an excellent location and is consistent with the purpose of the Mixed Use Zone. While some parties opposing the proposal referred to the amount of housing proposed, we find the density of the development to be acceptable and instead built form outcomes are most influential here.
It is also apparent that a full line supermarket and a discount department store are supported to fill a retail gap referred to in Chapel Vision. The review site is one of very few lots that are large enough to contemplate this combination of uses and associated infrastructure such as parking. These uses are expected to be a boost to the activity centre and serve the large influx of residents and workers as the wider area develops.
Mr Dimasi's evidence emphasises these benefits as well as the potential impacts on other retail facilities and an overall net community benefit. Submissions by Mr Wren SC alluded to the supermarket as being 24 hour trading. Mr Eisen said this was a new aspect of the proposal but the evidence of Mr Dimasi, and reasonable expectations about retail trading as it occurs today particularly in major centres, gives rise to 24 hour trading as an accepted prospect. We also observe that the noise impact assessment is undertaken on a 24 hour basis with respect to matters such as plant and equipment, operation of the car park and loading dock activities.
Some home offices are proposed and they are acceptable uses in a Mixed Use Zone in this location. They would assist to activate street frontages and add to the finer grain of built form and uses along local streets.

Does the proposal suitably respond to its physical and planning contexts?

The site has many opportunities but faces major constraints. The opportunities derive from the land's size, location and street frontages. Its constraints arise from the slope with related drainage issues, open space to the south (Como Green) and lower scale development particularly to the east and south-east. It is necessary to appreciate that works are occurring on-site for the construction of a multi-level basement car park approved by the Council as Stage 1 of Permit 1208/04.
Site planning has generally responded well to these opportunities and constraints as well as the site's context. This was agreed by all urban design witnesses. The podium provides a suitable building scale to the street network and abutting development. Tower elements are acceptable having regard to existing towers and expectations with respect to the area north of Toorak Road. The high rise tower is toward the north-west where the majority of shadows at critical design times fall within the site but without adverse affects on residences within the development. The interface with Como Green is difficult because of the significant level differences as we discuss later.
Loading is appropriately positioned to the south-east, off River Street, and has been internalised within the building which is a good outcome. Some statements of grounds oppose loading off River Street and seek that activity from Chapel Street. We do not support such an outcome as it would be contrary to all policies and design guidelines to which we have had regard[18]. Loading bays associated with large retail uses will be substantial. They must be serviced by roads but are sought to be located away from key public spaces. Chapel Street is the primary pedestrian street where a continuous active frontage is critical to the achievement of policy outcomes. The proposal has achieved this aim by focussing the retailing and the retail entry from this street even though there is some basement access.
Drainage is a significant issue in this location and a matter to which Mr Ryan had clearly given considerable thought. The site is within a Land Subject to Inundation Overlay that also extends over a wide area including to the north-west toward the Yarra. Any development on the review site requires extensive drainage works, including potentially relocating and replacing services. A number of conditions are proposed by the Council to address this matter with the design standard being a 1 in 100 year storm event. We appreciate Mr Ryan's wider vision for infrastructure but this is a matter for the Council and servicing authorities to address mindful of the extensive development that is anticipated in the immediate area. Drainage issues are well known, as evident from Clause 22.15 and Chapel Vision, and permit conditions are the appropriate means by which service authorities can be satisfied the proposal meets its obligations in this regard.

Is the overall massing and form of the proposal acceptable?

The substituted plans have addressed some of the issues identified by the Council with respect to the application plans. However, the Council remains concerned that the proposal is flawed with respect to the design of the retail component. This was pursued through Mr Morrison's evidence whereas Ms Ring and Mr Sheppard considered the proposal to be generally worthy of support subject to addressing detailed design matters with respect to open space, the interface with River Street and pedestrian access to the retail centre from Malcolm Street. Mr Sheppard was also concerned about the relationship with Como Green. Respondent Objectors identified their concerns about the overall scale and mass of the proposal notably the high rise tower that many said is too tall. The Applicant challenged these submissions through the evidence of Messrs Biles, Govenlock and Hutson. We note that all three indicated changes to the detailed design are possible but were not regarded by them as necessary and/or appropriate.
The strategic context for the site has been summarised above indicating a significant built form outcome is expected. Despite being in a substantial change area and despite policy directions that anticipate a built form that is different to the prevailing character, Chapel Vision proposes a 10 storey preferred maximum building height. That is perhaps somewhat curious insofar as previous approvals, such as the Australand permit (Permit 1284/04) and the building on the north-west corner of River and Malcolm Streets, allowed higher forms to 11 and 13 storeys and taller buildings are present in the area. Even higher structures are being supported by the Council in Forrest Hill.
We consider a 10 storey form would fail to maximise the opportunities and expectations that have been set for this site. That has been conceded by the Council in that it has not opposed the mid rise or high rise towers within the proposal based on the substituted plans. None of the witnesses called by the Council opposed these elements of the design in the substituted plans.
We find the podium, mid rise tower and high rise tower respond suitably to the site's context that includes low rise buildings along River Street and to the east, and mid rise structures along Malcolm Street and Chapel Street[19].
The review site is not an identified gateway within the Scheme or any adopted policy, but the site is at the northern end of commercial/mixed use zones on the east side of Chapel Street north of Toorak Road (a residential area is north of Malcolm Street) and there can be said to be a case for a significant marker or icon. That again is acknowledged by the Council.
The design's architectural composition was not specifically criticised and we have no issue with it. The tower is a sculptured element and, with the mid rise tower having been lowered in the substituted plans, the high rise form will sit elegantly in a context of mid to high rise forms.
We are not persuaded to accept Mr Morrison's evidence that the proposal is so flawed that it must be rejected because of the internalisation of retailing and the supermarket. Mr Morrison's evidence was that the proposal fails to be an exemplar of a 21st century mixed use development because of an introspective traditional retail offering and a lack of permeability and public open space. He contrasted the proposal with the QV project with its supermarket and department store below ground, public spaces and laneway network. All other urban design witnesses did not agree that the proposal should fail on this basis and the Applicant referred to aspects of the design of the QV project that were said to not be ideal to follow.
The approach Mr Morrison proposes may have produced a suitable design response. But a three level basement is in construction under an existing Council approved permit. Is it realistic or fair to refuse the current permit application in favour of a basement supermarket when basement parking is already being built, the layout in the retailing is workable and, overall, the proposal can achieve many of the objectives sought by the Council? In the circumstances, our answer is "no". Even though we agree with some of the criticisms made by Mr Morrison with respect to activation along River Street and the need for additional public access to the retailing and a public open space as we discuss below, we consider these can potentially be resolved as Ms Ring and Mr Sheppard recommended. In other respects, we find the proposal suitably responds to Malcolm Street in terms of its built form and land uses. The interface with Chapel Street includes the main entry into the retail complex plus shops with direct access from the street. The inclusion of an access point for the residential car park along this frontage is less than desirable but that has been approved by the existing Permit 1208/04. There has been an effort to provide access into the retail section via Como Green, that would potentially benefit those in Como, and to provide a café fronting the arguably under-utilised Green.
For the above reasons, we are satisfied that the overall scale and massing of the development and positioning of land uses is acceptable in principle.

Submissions and evidence for the Council, supported by similar submissions by other parties such as Mr Eisen, focussed on four specific design issues with respect to the proposal's interface with the public realm. We deal with each in turn, in no particular order.

The proposal concentrates entry and exit into the retail centre via Chapel Street with a link to the upper level of retailing also available from Como Green. Having regard to policies within various design guidelines and Chapel Vision with respect to permeability, the evidence of all witnesses called for the Council was that a further access is required from Malcolm Street at ground level to service residents to the north and north-east of the site. Ms Ring described this aspect of the design as miserly and all witnesses referred to the potential to modify a fire escape corridor to allow pedestrian access via a modified internal layout with retail frontages within the development, at least on one side.
The Applicant and its witnesses supported the notion of permeability but opposed, or did not see as necessary, modifications to the fire escape to provide pedestrian access. The change was not supported because it would potentially draw patronage away from Chapel Street which is regarded by policy as the primary pedestrian precinct. It is evident that the Applicant also opposes the change for commercial reasons, seeking to ensure all customers enter and exit past the maximum number of retail premises mindful that speciality retailing will be dependent on custom drawn by the major anchors of the supermarket and discount department store.
Chapel Vision refers to a north-south link through the site. That cannot be simply achieved based on this concept, and mindful of difficulties associated with level differences as discussed below. Nonetheless, design policies advocate maximising permeability and linkages with the external environment including for malls and large stores as well as facilitating convenient and direct pedestrian movement[20]. The proposal includes a link from Como Green and good access from Chapel Street but fails to provide the same with respect to the north/north-east/east.
Modifying the proposal to accommodate an attractive link from the north, for the convenience of residents and workers in SY21, and nearby streets such as River Street and Tivoli Road, would assist to integrate the development with its environment in accordance with policy. It needs to be active on at least one side within the retail centre and accessible to the public for the same opening hours as retailing.
We are persuaded this modification is necessary despite its potential to take some pedestrian traffic off Chapel Street. The modest entry would add convenience for some but, when mindful of the new development occurring and expected to the south-west, west and north-west of the site, as well as customers driving into the basement or using public transport along Chapel Street/Toorak Road, Chapel Street will remain the principal customer focus. No submissions were made by the Applicant suggesting this change would undermine the complex to such an extent as to threaten its viability. Contentions that the additional entry would affect residential amenity along Malcolm Street do not sway us that a secondary entry is problematic to such an extent that it should be discarded.

Mr Morrison identified a need for a public open space with minimum dimensions of 15 metres x 15 metres at the north-west of the site, activated by a café/bakery or similar uses that would facilitate interaction. Mr Sheppard also referred to the importance of providing public open spaces in activity centres noting that a larger space on the north-west corner of Malcolm and Chapel Streets would be a valuable opportunity for resting and sitting in the sun. He said this must be a genuinely public space and street furniture should be co-ordinated with the balance of the Chapel Street streetscape. Some submissions contrasted the amount of open space in the proposal with other projects nearby (such as SY21 and Como Green).
The Applicant and its witnesses did not agree a larger space is required to the north-west corner, or anywhere else on the site, stating that the proposed area can be designed in the manner suggested by Mr Sheppard and would be activated by abutting land uses such as a café. They said activation of the space can be achieved in association with a commercial tenancy with an interest in the space. Moreover, Mr Wren stated there is no obligation to provide substantial public open space, the proposal already intends a substantial contribution to footpaths and road widening, and the retail complex itself provides a valuable recreational facility.
The plans show seating within a space at the north-west corner of Malcolm and Chapel Streets[21]. The space is overhung in part by the upper level of the podium. It abuts a gallery associated with the foyer to the residential component and a small landscaped area (that is not shown on the landscape plan). While the Applicant's advocates and witnesses spoke of this space also being abutted by a café or the like, the plans show the abutting use as specialty retailing. Glazing is proposed (any may be openable). The space can be readily enlarged to meet the Council's request of around 225 square metres and we see this as a necessary and valuable contribution to the public realm. A minimum dimension of 10 metres would be desirable.
The public open space would supplement the footpath improvements and arguably provide some compensation for the absence of a direct pedestrian route/open space through the site. Any space might need some greater clearance to the sky while still providing for some weather protection. The corner specialty retailing can become a café/bakery or similar use, with its northern elevation adjusted southwards to accommodate the change.

Mr Morrison referred to the need for a meaningful link with No. 670 Chapel Street and Como Green while Mr Eisen suggested the roof deck open space within the proposal be joined with Como Green.
This is a very difficult part of the site. Como Green sits atop a main drain and rises many metres above River Street and Chapel Street. It has a somewhat under-used appearance at present albeit we did observe its use by a number of people on our site visit, a sunny weekday spring afternoon.
As noted above, the proposal provides a stairway link to the interior of the retail complex as well as café that potentially could open up into the Green (should that be allowed by Como). The design relies on a green wall to provide visual interest to terminate the western end of the Green[22]. The stairs from River Street and ramp to Chapel Street are within the adjacent property and although works such as a path would assist movement across the Green (and would be supported by us) the land is outside the control of the proponent in this case. Moreover, the level difference of some 7 metres between Como Green and the roof deck open space within the development is a significant impediment to encouraging public movement to the deck even if stairs were provided. We consider the design response to be acceptable in the circumstances and encourage action by the Council to facilitate co-operation between land owners to facilitate use of the Green.
A further matter under this heading is a suggestion by Mr Hutson that the corner of the development (south elevation) at the ramp to Como Green could have greater architectural interest to mark the entry. He suggested extending "the folded planar language deployed on the terrace level of the podium down across the corner to draw the eye to this point" [23]. Mr Shaw did not regard this as appropriate or necessary. We think some form of marker would be desirable and will leave the precise nature of a change to this part of the southern elevation to the architect to devise.
Another suggestion made during the hearing by Mr Shaw was extending glazing at the department store level to the River Street corner. That was generally agreed by all witnesses to be desirable, subject to the window not being associated with storage in the store so that it does not present with boxes and the like.

Arguably the most contentious of the detailed design issues is the proposal's interface with River Street. The Council submitted the proposal essentially turns its back on River Street and pedestrians would be confronted by a substantial wall. Mr Gobbo QC submitted that policies in the Scheme, various design guidelines as cited above, and Chapel Vision seek activation of street frontages and require more than a blank wall. The Council proposed a habitable edge of small offices and/or residential studios as shown in Permit 1208/04. Mr Morrison's and Mr Sheppard's evidence was that this sleeve of uses should extend between the café on the corner with Malcolm Street and the loading bay to mirror the upper level activity that occurs on the east side of River Street. Mr Sheppard made additional suggestions with respect to glazing. Ms Ring agreed that River Street is not a service road but a street that, like others, should be improved. Ms Ring and Mr Sheppard supported the idea of land use activation. As we understand it, throughout the course of discussions about the proposal, the Council has consistently sought this revision to the River Street elevation.
The Applicant submitted the proposal's response to River Street is acceptable as shown in the substituted plans. Mr Wren and his witnesses referred to the significant constraints to development and renewal along the east side of River Street and within the site given drainage and flooding issues as well as the traffic by-pass function intended for River Street through Chapel Vision. Mr Wren said River Street is not intended to be, or likely to be, a pedestrian friendly environment and it is appropriate to treat River Street as back of house. In this context, urban design aspirations should be tempered and the proposal accepted as an attractive solution in architectural and landscape terms. Mr Biles emphasised that surveillance is the most important outcome and the proposal can satisfy that objective. We also note Mr Wren's comments that a commercial agreement has been entered into with Woolworths for a supermarket of the size proposed and difficulties in negotiating alternative arrangements and layouts.
Mr Wren said if the Tribunal considered changes are necessary, then modifications shown in plans tendered at the hearing address the need for activation and, most importantly, passive surveillance. One of those plans, dated October 2008 and tendered on the first day of the hearing, is in sketch form and shows additional glazing among other changes. Plans tendered on the final day of the hearing show a revised floor plan and elevation. The Applicant's witnesses regarded the changes as improvements but not necessary whereas the later plan was not available to be put to the Council's witnesses[24]. Mr Govenlock noted the potential of outdoor seating associated with a café to activate the corner of Malcolm and River Streets by a change to the layout of that part of the site.
We agree with Mr Wren that the Tribunal should not require changes to the proposal to achieve a better outcome if the proposal as presented is acceptable in the terms required by the Scheme. That is how we have approached our consideration of all issues in this case.
We have very carefully considered the proposal's River Street elevation having regard to the existing site context. River Street has a fine grain presentation with mainly double storey commercial premises that have ground level undercroft parking. There are several recent refurbishments/ redevelopments on the south-east corner with Malcolm Street and several lots southwards. These appear to include residential components. We understand the Land Subject to Inundation Overlay affects land southwards of No. 56 River Street, or thereabouts; that is south of the proposed car park entrance. This is an obvious constraint for redevelopment along River Street and the east side is also affected by its abuttal to the residential area in Tivoli Road. The Business 2 zoning affecting the east side of River Street gives opportunities for a mix of uses in this constrained location although we are not as pessimistic as the Applicant as to the likelihood of further investment. Nor are we as indifferent to the qualities of the setting. We consider the investment that has occurred is demonstrative of what is possible with flexible floor plates and scope for residences and/or offices in the northern section of the street.
We have previously found that the use of River Street, and the low point of the land, for servicing is appropriate. River Street's anticipated role is for additional traffic and thus the vehicles associated with loading resulting from the development are acceptable. Moreover, although River Street is expected to carry more traffic, the by-pass route continues to Malcolm Street with traffic signals to be erected at Chapel Street. This is relevant insofar as Mr Wren submitted this traffic is one reason why residential development associated with this part of the review site would be in a compromised setting but this factor will also apply with respect to townhouses and home offices proposed along Malcolm Street.
River Street is not a small back lane. It is a road that is expected to play a stronger role in time for traffic movement through the area but that does not have to exclude improved pedestrian friendliness. We see potential for River Street to be enhanced and, in accordance with Chapel Vision and urban design principles expressed through design guidelines[25], River Street should not be regarded as solely for car access and loading. The proposal provides for improved landscaping at the southern end of the street including a section of green wall. We find these works, and elevation treatment shown in the substituted plans, are not enough to achieve the design outcomes sought by the Scheme. More than passive surveillance is required; genuine activation by land use activity is necessary to match activity on the east side of the street and achieve policy goals.
For these reasons, we are not persuaded that the revised sketch and tendered floor plan/elevation are sufficient to resolve our concerns nor is the idea of varying the café at the corner of River/Malcolm Streets. At footpath level, the tendered plan improves upon the substituted plans by removing a nook between fire escape stairs and a void to the plenum, providing a splay to improve pedestrian sightlines and enabling a single wall plane abutting a footpath. Although additional glazing is proposed and desirable, the spaces behind the glazing are corridors to toilets for supermarket staff, a dining room (that is separated from River Street by a second internal glazed section), and other enclosed spaces. As a result of the slope down River Street and flooding constraints, southwards, the glazing would be considerably raised above footpath level moving toward the loading dock.
As shown on the endorsed plan to Stage 1 of Permit 1208/04, it would be possible to provide office suites and/or home offices and studio apartments wrapping around the corner into the northern section of River Street extending then to the car park entry/exit. These could be single level or possibly have two levels or include mezzanine spaces given the footpath level relative to the floor level of the supermarket (RL6.4m). The grades mean that these uses could have direct access from the footpath or a small number of stairs for units closer to the car park. Further south with increasing slope, the same endorsed plan shows how an active frontage can be achieved with ramping behind a landscaped edge. We consider the format on the endorsed plans provides a workable solution that could be modelled here but accept there may be other solutions particularly in terms of access for uses south of the car park and extending toward the loading dock. We also consider lower and upper level glazing treatments along this eastern elevation should reflect the finer grain of built form opposite.
We have disagreed with the Applicant's position about the River Street elevation on urban design and policy grounds as discussed above. Two further arguments against this change were presented by the Applicant.
One argument was the impact on the supermarket layout and floor area. It is obvious the Applicant, and/or proposed tenant, seek to avoid any loss in supermarket floor space. It is self-evident that these types of retail facilities are increasing in size and enough space for potential expansion may be desired to be built-in to a design. Mr Gobbo pursued questions of the Applicant's witnesses with respect to the scope to reduce that space to allow for alternative land uses to front River Street. None conceded it was not possible although reluctance by a tenant to do so was plain.
The planning report accompanying the permit application states the largest supermarket in the region is in Malvern with 3,200 square metres and thus the proposal would be the largest available. We have not been persuaded that a loss in some floor area, or an adjustment to the internal layout to achieve the same floor area, is not possible. There were no submissions that such a change would jeopardise the project albeit it was said existing agreements would need to be revisited.
The amount of floor area required to accommodate studios/offices might be 5 - 8 metres in width (having regard to the endorsed plan in Permit 1208/04) with a loss of floor space in the order of several hundred square metres. That means substantial floor space would remain for a full line supermarket facility, unless the layout is modified internally so that there is less or no loss of supermarket floor area.
A second reason why the land uses along River Street were opposed by the Applicant was because, if the units cannot be leased or sold, then vacancies would be detrimental to the complex as a whole. Further, the types of units advocated by the Council were said by Mr Wren to not accord with the proponent's vision or the quality of the balance of the development. There was, however, no evidence presented to support contentions that any offices/residential studios or the like sited along the River Street elevation would not be able to be leased or sold or would be unattractive proposition for occupants. We noted on our site visit a three bedroom home office directly opposite the site that was for sale with the real estate board citing $1.295m (ONO). The Council's position on this elevation has been known for a long time and Permit 1208/04 has been approved for some time. We think inferences can be drawn by the Tribunal given a lack of evidence to support the Applicant's contentions with respect to the prospect of proposed uses along River Street potentially failing.
We were shown a photograph of a vacant shop along Little Lonsdale Street to the rear of QV as well as premises along Burnley Street associated with the Victoria Gardens complex. The former faces the rear wall of the State Library and its context is quite different to River Street. Importantly, River Street is activated by uses along its east side. Victoria Gardens is again different and we do not think it can be relied upon as an indicator of a potential problem in the current case.
For these reasons, we accept submissions and evidence for the Council that net community benefit is in favour of the inclusion of land uses along the River Street elevation rather than solely relying on modified elevation treatments as proposed by the Applicant.

Would the proposal unreasonably impact abutting and nearby properties?

The main issues arising in statements of grounds and submissions by Respondent Objectors with respect to direct amenity impacts focus on overshadowing, overlooking, noise, wind and litter.
The review site gains separation from its closest neighbours by roads along its eastern and northern boundaries. Como Green provides separation as well. It is correct that the proposal will give rise to increased shadowing mindful that the site has been vacant for an extended period of time. Many properties have had the benefit of access to sunshine that will be removed even if a much lower and less intensive development was contemplated.
The Guidelines for Higher Density Residential Development indicate that shadowing of private open spaces is typically based on the equinox as the design standard[26].
Overshadowing diagrams show impacts on properties east of the site may occur after 1pm at the equinox with increasing shadows after 2pm. The Como Green would experience fairly minor shadowing to its northern end before noon. The impacts are within acceptable limits of change. We are also satisfied that reasonable access to daylight will remain for properties in the area.
Given the site's three street frontages and presence of Como Green, windows within the proposed development will be more than 9 metres from any habitable room windows or open space in surrounding properties. This is the design standard referred to in the Guidelines for Higher Density Residential Development relying on Clause 55 of the Planning Scheme[27]. While there may be perceptions of overlooking with respect to a significant number of windows and balconies, the outcome is not unreasonable given the strategic intent for this location.
It is self-evident that the proposal would change the outlook for many properties in the near and wider area. The podium form, mid-rise tower and taller but sufficiently slender high rise tower assist to ensure that the building bulk is not broad across the whole of the site.
The noise impact assessment sets design criteria for noise limits at nearest residential receptors. Loading, car park operation and mechanical plant are the main potential noise sources, other than people movement in the area, tram and traffic noise. The report does not describe specific design recommendations. It was undertaken at times (2006 and 2008) when the review site was not occupied by buildings and there are (possibly new) residents on the opposite side of River Street close to a car park entry and exit, north of measured Location C. A revised assessment to ensure compliance with applicable noise standards will be required. That could be included on any permit to issue in addition to limits on loading hours as proposed in permit conditions recommended by the Responsible Authority.
The proposal will change the micro-climate including with respect to wind movement. The design has adopted principles referred to in design guidelines such as the Guidelines for Higher Density Residential Development whereby stepped building forms will assist to reduce wind turbulence at ground level. A wind environment assessment submitted with the permit application has further assisted and we note further testing is recommended. We propose that be dealt with by a permit condition in the event that a permit issues.
A waste management plan can address the disposal of litter within spaces on-site and associated with all land uses.

Is traffic generation associated with the development acceptable?

Some parties referred to the increased traffic that would be expected with the proposal and consequent impacts on the safety and amenity of the area.
The proposal will increase traffic movement in the area, including Tivoli Road, however the basement is already approved under Permit 1208/04 and in construction. This matter has, therefore, been addressed under that approval including the use of multiple access points. Safety has been assessed in that decision. We understand from the assessment by the Council officer that traffic expected to be generated by the proposal would be less than that arising from the approved proposal in Permit 1208/04[28].
Mr Eisen drew attention to Mr Turnbull's evidence wherein Mr Turnbull refers to the need for a traffic management plan for the area. Neither the Council nor the Applicant support any delay in approvals for such work to be completed. We appreciate that changes in traffic conditions significantly concern those in the immediate environs and the evidence suggests work is underway by the Council. Given the car park is already approved and under construction it would not be appropriate to delay a development on the review site to await a traffic management study. It is, however, evident that the Council will need to pursue and finalise its investigations with a degree of urgency. Signals at the intersection of Malcolm and Chapel Streets are important to service the proposed development and we note conditions agreed by the Applicant and VicRoads in this respect. We also record that the section 173 agreement applying to the review site requires 20% of the cost of the signals to be paid to the Council, the road manager until VicRoads assumed responsibility for Chapel Street sometime after the agreement was entered into. Mr Gobbo confirmed that the money Council received would be forwarded to VicRoads.

Another of the grounds relied upon by some parties is that insufficient parking is included within the development. Respondent Objectors were particularly concerned about parking infiltrating local streets.
We are satisfied on Mr Walsh's evidence and the assessment by the Council officer that the proposal provides sufficient car parking to support all of the proposed uses and the additional 237 spaces required by the section 173 agreement applying to the land. There will be a loss of on-street parking in River Street but that is also the case as a consequence of the works approved in Permit 1208/04 including some kerbside widening along River Street. This may affect businesses in the locality but it is relevant that public parking will be available on-site, albeit a charge might apply.
At the hearing we raised the question of casual bicycle parking on-street and the provision of hoops was not opposed by the Applicant. We have since noticed that visitor bicycle parking is mentioned on the plans. Final details and locations could be settled with the Council.

For the above reasons, we find many aspects of the proposal to be acceptable having regard to the land's physical circumstances and the policy directions being pursued by the Council through the Planning Scheme and structure planning processes. We do not accept one arm of the Council's position that the overall urban design outcome is flawed and requires a fundamental revision of the position of the retail component. We do, however, accept the other arm of the Council's case (as supported by some Respondent Objectors) that detailed design improvements are necessary to produce an acceptable outcome.
We have not been persuaded that the alternative eastern elevations proposed by the Applicant during the course of the hearing sufficiently respond to our concerns. Rather, we find the design requires the following revisions:
- A pedestrian entry/exit is required from Malcolm Street to the retail complex, as can be accommodated on the plans. This should be accessible to the public for the same opening hours as retailing. This should not be a wall lined corridor but should include open glazing to retailing on at least one side to provide for surveillance.
- The corner of Malcolm Street and River Street, and then River Street extending south to the loading dock, should be activated by the provision of dwellings, offices or home offices. The balance of the east elevation should include glazing to reflect the fine grain of built form on the east side of River Street. A modified plane wall to the footpath to avoid nooks and ensure good pedestrian sightlines is desirable. The kerb alignment should accord with that agreed with the Council involving some widening at the southern end thereby allowing increased planting (as shown on the landscape plan).
- A public open space of around 225 square metres with a minimum dimension of 10 metres should be provided at the north-west of the site to which food and drink uses abut.
We have decided to afford the Applicant an opportunity to prepare amending plans with respect to the eastern elevation. At the same time it would be convenient to include the other changes we require with respect to the provision of a public open space to the north-west of the site, an entry off Malcolm Street to the supermarket and minor refinements to the architectural detailing with respect to the southern elevation.
We will require the plans to be circulated in accordance with the Tribunal's practice requirements with respect to amending plans and allow submissions upon the changes only. We do not invite submissions on matters that we have already decided upon as set out in these reasons and we will not be revisiting our findings other than with respect to the discrete, three, items listed immediately above (save for consequential changes that might arise)[29].
Our directions are set out in our order.

Notice of Proposed Amendment - Planning Permit 10/08

An Application for Review against a decision by the Stonnington City Council to fail to decide upon permit application 10/08 within the prescribed time was heard by the Tribunal on 6-9 October 2008. Directions were issued by the Tribunal on 22 October 2008 regarding the notification of amending plans with respect to the east (River Street) elevation and the receipt of written responses.

Address of Land - No. 670 Chapel Street, South Yarra

The amended plans (insert drawing numbers and dates) may be inspected during business hours at the premises of the Victorian Civil and Administrative Tribunal, 55 King Street, Melbourne, and at the (insert name and address of the Planning Department at the Responsible Authority).

Attached to this notice is a summary of the changes made to the plans.

The Tribunal will not decide on the Application until four calendar weeks after the date of this Notice. Provided you respond in writing to the Tribunal, Stonnington City Council and the permit applicant with respect to the amended application on or before that date ............ (insert date four calendar weeks from date of notice), your responses will be taken into account in any decision made by the Tribunal. A copy of your response must also be served on the Applicant for Review at ........... (insert address) and the Stonnington City Council (insert address and contact person) by .............. (insert date four calendar weeks from date of notice).

Any party to the Application for Review may request that the proceeding be brought on for further hearing in order that submissions may be made orally. In absence of such a request, and unless the Tribunal of its own volition determines that a further hearing is required, the Application will be decided on the basis of the further written submissions in addition to material already submitted.

[1] A number of parties sought to withdraw their objections including Sunhall Pty Ltd, South Yarra Fun Factory Holdings Pty Ltd, The Capitol (Vic) Pty Ltd, Mr S Parmenter, Dr J & Mrs G Winnett and Mr Kirsner.

[2] Proposed permit conditions were agreed between VicRoads and the Applicant on Day 2 of the hearing. Mr Walker withdrew from the hearing at that time.

[3] Melbourne Water initially objected to the proposal but we have been advised that has since indicated it does not oppose the issue of a permit. Mr Wren agreed to follow up a further letter from Melbourne Water with respect to this application.

[4] A review against failure is a deemed refusal under Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998.

[6] Clause 21.03. The review site is opposite a Business 2 Zone and Residential 1 Zones. The Mixed Use Zone is within the suite of residential zones.

[10] Based on the criteria specified in Clause 12.

[12] Chapel Vision Structure Plan 2007-2031, December 2007.

[13] Chapel Vision at pages 23, 24, 39 and 40. The review site is also known as the "Australand site" based on previous permits.

[14] Chapel Vision at page 32. Some existing buildings around the site are more than 10 storeys.

[16] Chapel Vision at pages33, 34 and 36.

[18] Including the Activity Centre Design Guidelines.

[19] Noting a permit has issued for an 11 storey building on the vacant site at the north-west corner of Malcolm River Streets_._

[20] For example, Objective 6.1 in the Activity Centre Design Guidelines_._

[21] The roof top deck is proposed for usage by residents of the development and thus is not proposed for public use.

[22] We understand that this is proposed to be maintained from within the site as described by Mr Wren at the hearing.

[23] Paragraph 23 of Mr Hutson's statement of evidence at page 6.

[24] There was some cross-examination of Ms Ring with respect to the type of changes that were later shown in plan form.

[25] For example, Objective 6.2 and design suggestion 6.2.2 in the Activity Centre Design Guidelines and Objective 3.2 in the Guidelines for Higher Density Residential Development and design suggestions 3.2.1 - 3.2.4.

[28] Section 7.5 of officer's report (General Business item 5 May 2008).

[29] Mr Ryan filed an amended submission subsequent to the hearing without our leave. We have not taken that into account, and will not take into account, material that does not accord with our directions confining further submissions to the matters we have set out.

Environment Act 1987

Ryssal Three Pty Ltd v Stonnington CC [2008] VCAT 2113

At a glance

Court

Decision date

Before

Source

Judgment (66 paragraphs)

Ryssal Three Pty Ltd v Stonnington CC [2008] VCAT 2113 (22 October 2008)

Parties

Legislation Cited (1)