Victorian Civil and Administrative Tribunal|2008-12-22

Ryssal Three Pty Ltd v Stonnington CC [2008] VCAT 2619 (22 December 2008)

Ryssal Three Pty Ltd v Stonnington CC [2008] VCAT 2619

In permit application no. 10/08, the decision of the Responsible Authority is set aside. A permit is granted and must be issued. The permit relates to the land at No. 670 Chapel Street. South Yarra. The permit allows:
- Use and development of the land for shops, dwellings, home offices, restricted recreation facility (day spa), food and drink premises (café);

The permit is subject to the conditions contained in Appendix 1 to these reasons.

Ryssal Three Pty Ltd lodged an application with the Tribunal against the Stonnington City Council's failure to decide upon a permit application within the prescribed time. The proposal involves a substantial mixed use development on a large site in Prahran.
The Tribunal issued an interim decision with respect to this permit application on 22 October 2008. [1] That decision sets out the reasons for the Tribunal affording the Applicant an opportunity to prepare amending plans to address several discrete issues. Those matters were summarised in the conclusion of the reasons.[2] We said:

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.

In our reasons, we referred to several other matters of detailed design that we indicated could be dealt with by permit conditions, such as glazing at the department store level to the River Street corner and bicycle parking.

What material was received in response to the interim decision?

In response to our directions, a revised set of plans was filed by the Applicant (plans booklet November 2008).
No accompanying submissions were provided on behalf of the Applicant although our order had afforded this opportunity.
Submissions responding to the revised plans were filed by Mr S Miles of Bridgehead Properties (24 November 2008), Mr R Ryan (11 December 2008), Mr L Eisen (11 December 2008) and Minter Ellison lawyers for the Responsible Authority (12 December 2008). No party requested the hearing be re-convened although Mr Eisen suggested a hearing might be advantageous to resolve what the permit applicant is required to do to comply with the Tribunal's order. Having considered all supplementary submissions, we have decided not to direct a further hearing as we are satisfied it is now appropriate for a permit to issued subject to conditions.
In reaching a final determination, we have:
- considered all supplementary material and submissions filed with our leave, although we do not recite the contents;
- considered the submissions presented during the earlier phase of these proceedings including comments on permit conditions;
- proceeded on the basis that the circumstances of the review site and applicable planning controls and policies as relevant to this permit application are unchanged as our attention was not drawn to any variations that might be relevant to a final determination.

Changes to the plans upon which our interim order was based are described on the plans and statement provided in accordance with our directions. The changes include:
- 8 visitor bicycle parking rails;
- a 225 square metre public open space (13m x 20m) at the corner of Chapel and Malcolm Streets with a café;
- addition of one River Street office tenancy;
- modified entry to Malcolm Street to provide for pedestrian access;
- modified Level 1 glazing, canopies and detailing to River Street;
- urban art installation to mark the Chapel Street entry from Como.
Without reciting all of the details of the further submissions:
- Submissions in response to the revised plans by the Council contended the changes do not address the Tribunal's concerns because of matters such as:
  - The pedestrian entry from Malcolm Street is minimalist but satisfactory. Details should be required to ensure shop fronts face into the corridor.
  - The changes to River Street for one office provide less than contained in the 2004 approved plans that have multiple tenancies extending further along this façade and are set at a higher level.
  - Development plans should be consistent the elevations avoiding a door that might be concealed to the café corner.
  - The proposed open space meets the requirements of the interim order but is overhung by the floor level above. At minimum, the ground floor walls should be simplified and moved back to grid line 03-C and the first floor should also be moved back to grid line 03-C. If a permit is granted, the permit holder should be required to enter into a section 173 agreement with the Council with respect to the design, construction, ownership and maintenance of this space. The Council seeks for the space to be landscaped by a designer appointed by the Council with works to the permit holder's cost.
- Mr Ryan has suggested urban art be added along the River Street façade and makes other comments with respect to the activation of River Street and raising of street levels.
- Mr Eisen questioned the width of the entry/exit from Malcolm Street, the size of the open space, the floor levels, and the need for more activation at ground and first floor levels.
- Mr S Miles of Bridgehead Properties has expressed support for the plans.

Do the changes adequately address the Tribunal's concerns?

After considering the revised plans and submissions, we have decided to set aside the Council's decision and direct that a permit be issued. The improvements made in the revised plans respond sufficiently to the issues raised in our interim decision, subject to some further variations to respond to some of the matters raised in submissions. With the following variations, we find the proposal would produce an acceptable outcome when tested against the applicable provisions of the Stonnington Planning Scheme:
- While the extent of activation along River Street could be greater, we are satisfied with the revisions, including level differences, subject to the addition of urban art along River Street frontage to further add visual interest but without additional office tenancies being mandated. The artwork could be located to be a marker to the Como Green.
- Details of the pedestrian entry off Malcolm Street to be provided to the Council's satisfaction so as to ensure glazing faces into the internal accessway. The width is minimal but sufficient.
- Delete references to signage that has not been approved in this permit.
- Changes to the open space as sought by the Council to provide a more open and regular space. We will not require a Section 173 agreement with respect to the matters referred to by the Council because these can be negotiated within the context of permit conditions.

For the above reasons, we are satisfied that, subject to modifications based on the revised plans, the proposal represents an acceptable outcome taking into account the physical and planning context of the site and locality. We will set aside the decision made by the Responsible Authority and order that a permit be issued subject to conditions.
In deciding upon appropriate conditions, we have considered all submissions received with respect to possible permit conditions including conditions agreed by VicRoads and the responsible authority on the first day of the hearing. We record that we have not acceded to some requests with respect to modified building heights, restrictions on hours of operation of some activities or varied traffic management works suggested by Mr Eisen. We have not had final clarification of Melbourne Water's position but have adopted the position set out in its correspondence to the Council as conditions.

Before the use and development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to a scale of no greater than 1:100 with dimensions and three copies provided generally in accordance with the plans dated November 2008 but modified to show:
- (a) Any Melbourne Water requirements.
- (b) A schedule of building materials, finishes and colours for all external parts of the building including the provision of a sample board.
- (c) Any consequential changes required as a result of submitting documents to satisfy Conditions 3, 4, 5, 6, 7, 8, 12, 22 and any requirements of Melbourne Water.
- (d) Floor plans showing the café at the ground floor corner of Malcolm and River Streets to accord with the elevations so to avoid a concealed door.
- (e) Details of the pedestrian entry off Malcolm Street so as to ensure glazing faces into the internal accessway.
- (f) Provision of urban art along the River Street façade, such as a marker to the Como Green.
- (g) The ground floor walls addressing the public open space on the north-west corner of the site straightened and moved back to grid line 03-C
- (h) The first floor of the public open space on the north-west corner of the site moved back to grid line 03-C.
- (i) Detail of the Chapel Street facade to the podium at a scale of no greater than 1:50 to clarify the position, alignment, depth and separation of all intricate details of this facade.
- (j) Details of any rain water detention tanks, solar panels or water cooling pool areas.
- (k) The Chapel Street car park entrance shown as left in left out only with associated signs.
- (l) Signs provided at the entrance to the Chapel Street underground car park stating "Resident/ Staff Parking Only".
- (m) Delete reference to signage boxes.
The development allowed by this permit and shown on the plans endorsed to accompany the permit shall not be amended for any reason without the consent of the Responsible Authority.
Prior to the commencement of any buildings or works above basement level, a suitably qualified person must undertake a comprehensive wind tunnel test of the entire development and a Wind Climate Assessment Report must be provided for the written approval of the Responsible Authority.

Any modifications required to the development in order to ensure acceptable wind conditions must be submitted to and approved by the Responsible Authority. The design details of any wind mitigation works must receive the endorsement of the owner's wind climate experts, preferencing the use of architectural features and planting.

Prior to the commencement of any buildings or works above basement level, a Parking Management Plan must be submitted to and approved by the Responsible Authority. When approved the plans shall be endorsed to form part of the permit. The Plan must include the following:
- (a) The allocation of car parking areas for retail and residential uses, including specified car spaces for residential visitors on common property (visitor car spaces must not include tandem car spaces);
- (b) Time restrictions and hours of operation of the 237 public car spaces that are consistent with market practices for comparable public car spaces in the surrounding area;
- (c) Management of the public car parking area to ensure efficient utilisation of the public car spaces;
- (d) Details of the signage, line markings, the overall operation of the car park, and any safety mechanisms that will be put in place for someone backing out of the spaces opposite the ramps;
- (e) Details of where and how loading and unloading will occur;
- (f) Details of any access controls to the parking area, such as boom gates which shall take into account the queue length specified in section 3.4 of AS 2890.1;

all to the satisfaction of the Responsible Authority.

Prior to the commencement of any buildings or works above basement level, an Environmentally Sustainable Development Management Plan (ESD Management Plan) must be prepared by a suitably qualified person. The ESD Management Plan must address the following:
- (a) Energy Management;
- (b) Water Conservation and Re-use;
- (c) Construction Waste Management.
- (d) Relevant statutory obligations, strategic or other documented sustainability targets or performance standards.
- (e) Document the means by which the appropriate target or performance will be achieved.
- (f) Responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring.
- (g) Demonstrate that the design elements, technologies and operational practices in the ESD management plan can be maintained over time.
Prior to the commencement of any buildings and works above basement level, a Waste Management Plan must be submitted to, and approved by the Responsible Authority. Details to be provided in the Waste Management Plan must include:
- (a) Adequate storage space for waste bins.
- (b) Adequate provision for access to recycling facilities.
- (c) The frequency of collection of waste.
- (d) How the waste bin capacity is balanced against the collection frequency.

The Waste Management Plan must be approved by the Responsible Authority prior to commencement of construction and all waste storage and collection must be carried out in accordance with the approved Waste Management Plan.

Prior to the commencement of the use of the land in accordance with this permit a letter must be submitted to the Responsible Authority, to the satisfaction of the Responsible Authority, to verify that the conditions of a certificate or statement of environmental audit issued for the land have been satisfied.
Prior to the commencement of any buildings or works above basement level, a landscape plan indicating, but not limited to, the following items must be submitted to and approved by the Responsible Authority:
- (a) A schedule of all proposed trees, shrubs and ground covers (including size at planting and maturity and botanical and common names);
- (b) Accurate widths of footpaths adjacent to the site;
- (c) Level of paving and planting of specimen trees to the satisfaction of the Responsible Authority;
- (d) Details of paving materials (including colour and type), street trees (to be adjacent to the street frontages of the site, in accordance with Council's Street Tree Master Plan) and furniture to be utilised for the frontage of the site adjacent to Chapel Street. Such items must be consistent with existing infrastructure;
- (e) The public footpath paving is to be as per the paving (sawn bluestone) on the west side of Chapel Street between Oxford Street and Bond St, South Yarra;
- (f) The spacing and offset of street trees along the Chapel Street frontage is to be in line with the agreed spacing on Chapel Street north of Malcolm Street;
- (g) Irrigation system as required;
- (h) Details for correct planting procedure as required;
- (i) Proposed fence types, height and materials as required;
- (j) Existing and proposed grades represented as either spot levels or contours;
- (k) Adequate drainage provided to paved areas;
- (l) The construction of materials of any footpath reinstatement adjacent to the frontages of the site;
- (m) Details of street furniture;
- (n) Additional tree planting along the southern edge of the podium; and
- (o) Landscaping of the public open space on the north-west corner of the site including street furniture.

When approved, the landscape plan will form part of the endorsed plans under this permit.

Prior to the occupation of any dwelling, home office or commercial tenancy allowed by this permit, the works shown on the endorsed landscape plan must be carried out and completed in accordance with the endorsed landscape plan to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.
Prior to the occupation of any dwelling, home office or commercial tenancy allowed by this permit, details of the method and frequency of maintenance of the "green wall" fronting the Como development must be provided to and approved by the Responsible Authority. Should access be required from the Como development, details of any access agreement with that property must be provided to the satisfaction of the Responsible Authority.
If the permit holder is granted consent to do so, it must pave the remaining unpaved section of the walkway link between River Street and Chapel Street (being the section over the Prahran main drain). The paving must be at the cost of the developer and completed to the satisfaction of the Responsible Authority.
Prior to the commencement of any buildings and works above basement level, a Disability Access Management Plan must be submitted to and approved by the Responsible Authority. The plan must be prepared by a suitably qualified person and must satisfy the relevant Australian Standards and conform to the Disability Discrimination Act (1992). The plan must include details of:
- (a) Visitor parking for people with disabilities;
- (b) Internal and external paths of travel;
- (c) Raised tactile signs and Braille, (internal and external);
- (d) Tactile ground surface indicators (TGI's) internally and on pedestrian approaches;
- (e) Ramps and stair design;
- (f) Vertical transport systems (eg lifts, escalators & travelators);
- (g) Building access;
- (h) Entrance door design and function;
- (i) Seating/rest areas internally and on pedestrian approaches'
- (j) Sanitary facilities for people with disabilities.

Before any building approved by this permit is occupied, works required by the Disability Access Plan as shown on the endorsed plans must be carried out and an audit by a suitably qualified person must be submitted indicating compliance with the Plan or reasons why compliance cannot be achieved to the satisfaction of the Responsible Authority.

Prior to the commencement of any buildings or works above basement level, a Green Travel Plan must be submitted to and approved by the Responsible Authority. When approved, the Green Travel Plan will be endorsed to form part of the permit. The Green Travel Plan must include actions and recommendations designed to reduce the use of cars and increase the use of alternative travel methods to the satisfaction of the Responsible Authority.
Prior to the commencement of any works in Chapel Street, Malcolm Street and River Street, detailed engineering construction plans must be submitted to and approved by the Responsible Authority. The plan must provide comprehensive details including:
- (a) Pavement details for footpaths on Chapel Street, Malcolm Street and River Street, which are consistent with materials in the area and satisfactory to the Responsible Authority;
- (b) Levels and gradients;
- (c) All proposed drainage works;
- (d) The provision of any necessary service conduits and services beneath the footpaths;
- (e) Road widening and right turn lanes for Malcolm and River Streets.
Prior to the commencement of any buildings or works, the engineering works required by Condition 14 and associated landscaping, must be installed and constructed in accordance with the approved plan under the supervision of the Responsible Authority. The works must be at the full cost of the developer, including a charge capped at 2.5% (plus GST) of the cost of the works, representing the charge for supervision by the Responsible Authority.
Prior to the occupation of the relevant part of the building the footpath works located outside the title boundary adjacent to that building must be constructed in accordance with the approved footpath construction plan so as to match the existing levels, under the supervision of the Responsible Authority and to the satisfaction of the Responsible Authority.
Prior to the construction of any buildings and works above basement level, additional drainage, including stormwater pits must be provided in River Street and Malcolm Street to the satisfaction of the Responsible Authority and Melbourne Water. The additional drainage placed in Malcolm Street must satisfy a 1 in 100 year storm.
New and additional drainage collection pits and associated drainage must be provided at the low point of Malcolm Street at the owner's cost, to satisfy a storm recurrence interval of 1 in 100 years to the satisfaction of Council. A design for the works must be submitted to Council for approval and the works must be completed under the supervision, and to the satisfaction of Council.
All discharge from the development shall be discharged directly to the main Melbourne Water drain subject to Melbourne Water consent for any new connection to the drain.
Prior to construction commencing above basement level written evidence must be provided to Melbourne Water indicating that Council accepts maintenance responsibilities for any works that provide for the passage of stormwater from the local drainage system to the existing Prahran Main Drain.
At least 7 days prior to the construction commencing above basement level, a Site Management Plan, detailing pollution and sediment control measures, must be submitted to Melbourne Water and to Council for comment.
Prior to the commencement of any buildings or works above basement level, a 'Stormwater quality and water reuse plan' must be prepared and submitted to the Responsible Authority and Melbourne Water for approval. The plan and any accompanying report must demonstrate consideration of site water retention and stormwater treatment opportunities. Buildings and works must subsequently apply identified measures.
Prior to occupation of any home office, dwelling of commercial tenancy, any abandoned or disused vehicular crossings must be removed in conjunction with the development and the footpaths and kerb and channel surrounding the site must be reconstructed to the satisfaction of the Responsible Authority.
Any vehicle crossings must be constructed to Council's standard vehicle crossing specifications to the satisfaction of the Responsible Authority.
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 subject to the relevant authority's consent.
All services to the site and buildings approved as part of this permit must be provided underground unless with the written consent of the Responsible Authority.
The food and drink premises (café) uses approved by this permit shall only operate between the hours of 7.00am and 11.00pm on any day unless otherwise with the prior written consent of the Responsible Authority. The public car-park must always be open during these hours, but may be open longer hours (as regulated by the Section 173 agreement that burdens this land).
A total of no more than 30 seats may be made available for the accommodation of patrons within each cafe to the satisfaction of the Responsible Authority.
Prior to the commencement of any use, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:
- (a) Constructed to the satisfaction of the Responsible Authority.
- (b) Properly formed to such levels that they can be used in accordance with the plans.
- (c) Surfaced to the satisfaction of the Responsible Authority.
- (d) Drained and maintained to the satisfaction of the Responsible Authority.
- (e) Line-marked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority.
- (f) Appropriately sign posted as to access and use entitlements.
- (g) All driveways and access ramps to car parking spaces to comply with the relevant provisions of the Stonnington Planning Scheme.

Parking areas and access lanes must be kept available for these purposes at all times.

To minimise environmental problems associated with sediment run-off, any clearing or construction activity associated with development in the subject land, shall be carried out in accordance with the requirements of the Environment Protection Authority.
All wastes generated from demolition, site preparation and construction stages shall be disposed appropriately in accordance with the requirements of the Environment Protection Authority.
The emission of noise or any other emission to the environment from activities on the site shall conform to the standards contained in the appropriate State Environment Protection Policy or policies to the satisfaction of the Responsible Authority.
Air extraction fans, air conditioning and all other plant and equipment installed on the subject buildings must be baffled in accordance with the requirements of the Environment Protection Authority. Ventilation systems shall be designed and installed in accordance with relevant Australian Standards.
All plant and equipment must be contained within the envelope of the buildings and screened so as not to be visible from the immediate public realm to the satisfaction of the Responsible Authority.
The loading and unloading of vehicles and the delivery of goods to and from all commercial uses must only be carried out entirely within the designated loading bay area and be so conducted as to cause minimum interference with other vehicular traffic. The loading and unloading of vehicles and the delivery of goods to and from the premises must only occur between the hours of 7am and 10pm Mondays to Saturdays and between 9am and 10pm on Sundays or public holidays to the satisfaction of the responsible authority.
The collection of wastes and recyclables from the premises (other than normal Stonnington City Council collection) must be conducted between the hours of 9am and 4pm Mondays to Fridays and between 9am and 1 pm on Saturdays to the satisfaction of the Responsible Authority.
Any external lighting must be designed, baffled and located to suitably manage any adverse effects on adjoining land to the satisfaction of the Responsible Authority.
The drainage of the site shall be to the requirements of the Responsible Authority and the discharge of water from the land affected by this permit shall be controlled around its limits to prevent any discharge onto any adjacent property or street other than by means of an underground pipe discharged to a point nominated to the satisfaction of the Responsible Authority.
Access to No. 670 Chapel Street from River Street and Chapel Street via the Como development is to be maintained in accordance with the terms on which the owners of the Como site allow public access to their land to the satisfaction of the Responsible Authority.

No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
The entry/exit of the basement car park must incorporate a flood proof apex of a minimum of 300mm above the applicable flood level. [The applicable flood level is 4.6 metres to Australian Height Datum].
All doors, windows, vents and openings to the basement car park must be a minimum of 300mm above the applicable flood level.
Any drainage system to the basement must be designed such that stormwater is unable to penetrate the basement.
All finished floor levels must be a minimum of 300mm above the applicable flood level.
Prior to the issue of a Certificate of occupancy, a certified survey plan, showing finished floor levels (as constructed) reduced to the Australian height Datum, must be submitted to Melbourne Water to demonstrate that the floor levels have been constructed in accordance with Melbourne Water's requirements.

Prior to the commencement of any use of the land pursuant to this permit, traffic signals, public lighting and associated mitigating works must be installed at the intersection of Malcolm Street and Chapel Street in accordance with a design that is to the satisfaction of VicRoads.
Prior to the commencement of any works for the purpose of constructing the traffic signals at the intersection of Malcolm Street and Chapel Street:
- (a) Plans showing the detailed functional layout generally in accordance with the functional layout shown on Drawing Number 106180/T/10 dated 8 May 2008 prepared by Cardno Grogan Richards must be submitted to and approved by VicRoads and Responsible Authority.
- (b) Plans showing public lighting, traffic signals and the proposed signal phasing at the intersection of Malcolm Street and Chapel Street must be submitted to and approved by VicRoads.
- (c) Detailed engineering plans for the works at the intersection of Malcolm Street and Chapel Street must be submitted to and approved by VicRoads, and an additional copy of those detailed engineering plans supplied to VicRoads for surveillance purposes.
- (d) Written consent must be obtained from VicRoads for the works in, on under and/or over the Chapel Street road reservation in accordance with Section 63 of the Road Management Act 2004.
- (e) Payment of the pre-estimated audit fee must be made to VicRoads.
- (f) Payment for the costs associated with the supply and installation of traffic control signals must be made to VicRoads.
- (g) VicRoads must be provided with a bank guarantee in favour of it for a sum equal to the estimated cost of the works.
- (h) Any contractor engaged to carry out works must demonstrate, to the satisfaction of VicRoads, that it has a public liability insurance policy to the value of at least $10 million, effective for the duration of the works.
- (i) VicRoads must be provided with the name, address, business and out-of-hours telephone numbers of the principal roadworks contractor.
Any works carried out at the intersection of Malcolm Street and Chapel Street related to the installation of traffic signals, public lighting and associated mitigating road works must be performed by a prequalified contractor of the appropriate level of otherwise approved by VicRoads.

The permit holder must take all reasonable steps to ensure that disruption to tram operations along Chapel Street is kept to a minimum during the construction of the development. Foreseen disruption to tram operation during construction and mitigation measures must be communicated to Yarra Trams and the Director of Public Transport fourteen days (14) prior.
The permit holder must ensure that all track, tram overhead and supporting infrastructure is not damaged or that works do not cause unplanned disruption to tram operations. Any damage to public transport infrastructure must be rectified to the satisfaction of the Director of Public Transport at the full cost of the permit holder.
The signalisation proposed at the intersection of Malcolm and Chapel Streets must provide tram priority signalling to the satisfaction of the Director of Public Transport.

This Permit will expire if one of the following circumstances applies:
- (a) The development is not commenced within two years of the date of this Permit, or;
- (b) The development is not completed within five years of the date of this permit, or;
- (c) The uses are not commenced within six years of the date of this permit.

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.

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

Ryssal Three Pty Ltd v Stonnington CC [2008] VCAT 2619

At a glance

Court

Decision date

Source

Judgment (33 paragraphs)

Ryssal Three Pty Ltd v Stonnington CC [2008] VCAT 2619 (22 December 2008)

Parties

Legislation Cited (1)