To construct a building or construct or carry out works

Construct a building or construct or carry out works

To vary, reduce or waive any requirement of Clause 52.34-5 and Clause 52.34-6

Partial demolition of existing rooftop features and construction of a single level addition comprising seven additional hotel suites (as part of an existing Hotel), a pedestrian bridge and rooftop terrace, and the waiver of two bicycle parking spaces.

Application under section 79 of the Planning and Environment Act 1987 (Vic) - to review the failure to grant a permit within the prescribed time.[2]

Capital City Zone - Schedule 1 - Outside the Retail Core ('CCZ1')

Design and Development overlay - Schedule 1 - Urban Design in Central Melbourne ('DDO1')

Design and Development Overlay - Schedule 2 Area 9 - Special Character Areas - Built Form (Hoddle Grid) ('DDO2')

Parking Overlay - Schedule 1 - Capital City Zone - Outside the Retail Core ('PO1')

Clause 37.04-4 - To demolish or remove a building or works and to construct a building or construct or carry out works

Clause 43.02-2 - Construct a building or construct or carry out works

Clause 52.34 - To vary, reduce or waive any requirement of Clause 52.34-5 and Clause 52.34-6

The site currently comprises a number of titles and is currently developed with the Victoria Hotel, being located on the south side of Little Collins Street between Russell and Swanston Streets, Melbourne.

To the north, over Little Collins Street, is Council House 1 (eight-storeys) and Council House 2 (ten-storeys).

To the east, is the Georges Building comprising retail and office uses (five-storeys).

To the south of the east wing of the hotel complex, is the Collins Street Baptist Church and a rear office building (ten-storeys).

To the south of the central block of the hotel complex is Clyde House Serviced Apartments (eight to nine-storeys) and the Melbourne Athenaeum Theatre and Library (three to four-storeys).

To the west is the Melbourne Town Hall and Administrative Building.

1. Schwartz Family Co Pty Ltd (the 'applicant') proposes to construct an additional level on part of the existing Victoria Hotel at 201-207 and 209-231 Little Collins Street, Melbourne. Following Melbourne City Council's (the 'Council') failure to determine the application within the statutory period, the permit applicant has requested the Tribunal to determine the matter.
2. Prior to the hearing, the Council subsequently advised that it supported the proposal subject to a number of conditions, which are opposed by the permit applicant.
3. In essence, the hearing focused on the condition matters in dispute. What is not in dispute is that:
   • The proposed increase in the number of lettable hotel rooms supports economic development and tourism opportunities in the CBD.
   • The proposed reduction in the standard on-site bicycle parking provision was acceptable in the context of the nature of the existing land use and its physical context.
   • Subject to additional setbacks to the street frontage, all other setbacks were acceptable.
   • The overall increase in height of the building was also acceptable.
4. In setting out my assessment of the issues below, I do not recite all of the relevant material tendered by the parties. I have considered all written submissions, assisted by my inspection.
5. My assessment must be undertaken in the context of the directions of the Melbourne Planning Scheme (the 'Scheme') and the specific evaluation criteria for the matters in which a planning permit is required.
6. I must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions presented with regard to the applicable policies and provisions of the Scheme, I have decided to set aside the decision of the responsible authority and direct that a permit be granted.
7. My detailed reasons follow.

1. The review site is within the Town Hall Special Character Area, which is an area that comprises a high concentration of heritage buildings, many listed on the Victorian Heritage Register. These include the Melbourne Town Hall and Administrative Building to the immediate west; the George Building to the immediate east; the former Victoria Car Park and Westpac office approved and redeveloped under the Scots Church Redevelopment, November 2012 incorporated document; and Scots Church.
2. Opposite the site (across Little Collins Street) is the Retail Core Special Character area. Buildings include Council House 1 and 2, the Georges Apartments and Shocko House.
3. The review site comprises an amalgam of lots and has the street address of 201-207 and 209-231 Little Collins Street. The proposal also seeks to construct a pedestrian air bridge over Baptist Place.

Figure 1: Location Plan Source: Council delegate report

1. The site is located on the south side of Little Collins Street between Russell Street to the east and Swanston Street to the west. The site has an irregular shape and is dissected by two dead-end lanes, Athenaeum Place, which is a private lane and Baptist Place, which is a Council-owned lane with an L-shaped bend at its end.
2. The overall site has a frontage to Little Collins Street of approximately 80 metres and a maximum depth of 47 metres. The land falls approximately 3.5 metres along the street frontage (east to west). The site is currently developed with a residential hotel (The Victoria Hotel) and comprises four adjoining buildings:
   • The 'east wing' is nine-storeys in height.
   • The 'central block' is eight storeys at the front and four storeys at the rear.
   • The 'south wing' is four storeys in height.
   • The 'west wing' is six storeys in height. The 'west wing' is affected by Heritage Overlay HO504 and is identified as a 'contributory' building in the Heritage Places Inventory March 2022 (Amended August 2024) under 223-231 Little Collins Street. The remainder of the site is not included in the Heritage Overlay.

Figure 2: Aerial image Source: Council delegate report

1. The residential hotel on the land has existing multi-level pedestrian bridges over both Athenaeum Place and Baptist Place.

1. This application relates to the east wing and central block, which are both interwar buildings, neither of which are heritage listed. The east wing has a number of architectural features at roof level including a tall turret set back 4.9 metres from the front façade that conceals a lift, chimneys and a decorative parapet. Existing air bridges over Baptist Place connect the east wing and central block.
2. The application seeks planning permission for partial demolition and buildings and works for the construction of a single storey addition on the rooftop that comprises seven additional hotel suites, a further pedestrian air bridge and rooftop terrace, and a waiver of two bicycle parking spaces.
3. The proposal includes the partial demolition of the roof including the existing perimeter fence, building services, and a portion of the lift lobby/turret.
4. New works comprise the construction of an additional habitable floor level on the east wing and central block with a new connecting pedestrian bridge (above those existing) over Baptist Place. The addition contains six one-bedroom suites and a three-bedroom suite. Two suites are proposed to have private terraces facing Little Collins Street.
5. The addition is proposed to be set back approximately between 1.7 and 3.6 metres from the Little Collins Street façade and between 0.2 and 3.6 metres from the east boundary. The pedestrian bridge is set back 4.9 metres from Little Collins Street, above the existing pedestrian air bridges. The addition is approximately 313 square metres in gross floor area.
6. The addition above the east wing has a three metre floor to ceiling height and one metre high parapet, while the addition above the central block has a three metre floor to ceiling height, a one metre high parapet and two metre high plant between the existing roof level and proposed addition.
7. The addition will increase the overall building height from 29.4 metres (east wing) and 30.9 metres (central block) excluding architectural features and building services, to 34.4 metres (east wing) to 37.6 metres (central block) to the top of the one metre high parapets.
8. It is also proposed to construct a 121.9 square metre communal rooftop terrace above the central block with access via a shared balcony and stairs.
9. The addition comprises a flat roof, arched windows and doors and white metal shingle cladding in a diamond formation. A two metre high (approximate) plant with white/light grey aluminium louvers is also proposed between the existing roof level and proposed addition above the central block.
10. A 2.2 metre high glass balustrade is proposed to the private terraces and 1.6 metre high glass balustrade to the communal rooftop terrace with a white to clear gradient film tint.

1. Council is satisfied in general terms that the proposal gives effect to the strategic direction for the Hoddle Grid contained in the Planning Scheme and supports the City's role as a national and international tourist destination, that the works are consistent with the purpose of the CCZ1 which aims to '...provide for a range of...tourist...uses that complement the capital city function of the locality', and respects the contribution of the laneways to the urban structure of the Hoddle Grid.
2. The principal issue that remains in dispute is the council's position that the proposed addition should be set back five metres to the Little Collins Street street wall. The council says that this additional set back is required and relies on DDO1 and DDO2.
3. DDO1 relates to Urban Design in Central Melbourne. By its nature, it applies across broad areas of the CBD, and contains a number of design objectives which seek to ensure, amongst other matters, that all development achieves high quality urban design, and architecture, integrates with, and makes a positive contribution to its context, promotes a legible, walkable and attractive pedestrian environment.
4. The overlay seeks to achieve a number of design outcomes including:
   • Exterior design that is visually interesting when viewed up close and from a distance, responds to the distance at which the building is viewed and experienced from the public realm in the selection, scale and quality of design elements, and delivers high quality design on all visible sides of a building including rooftops, where visible from the public realm.
   • Facades that do not cause unacceptable glare to the public realm and use materials that are durable, robust and low maintenance in the higher parts of a building.
5. DDO2 relates to Special Character Areas - Built Form (Hoddle Grid). The design objectives for this overlay are:
   • To protect sunlight access to key public places and open space areas so as to provide a comfortable, pedestrian-friendly urban environment.
   • To ensure that the height of new buildings reinforces the built form character of unique areas.
   • To maintain the visual dominance of prominent landmarks.
   • To protect the unique built form and public realm amenity.
6. All buildings and works must meet these Design Objectives.
7. Buildings and works also must satisfy specified Built Form Outcomes; should meet specified Preferred Building Heights; and should meet the relevant Requirement specified for each relevant Design Element specified in Table 5 to this schedule.
8. The sole built form outcome that must be met for Area 9 (in which the site is located) is that the Town Hall and the historic buildings in the block remain visually dominant.
9. The issue in dispute relates to the proposed setback from Little Collins Street. The preferred setback expressed in Table 5 to the Schedule is that above the street wall, the upper levels of a building should be set back a minimum of 5 metres. The application proposes a street wall setback of between 1.7 and 3.6 metres from Little Collins Street.
10. Using the language of the DDO, this setback is a preferred ('ie. "should be") and not mandatory requirement, but any setback must satisfy the corresponding specified built form outcome, being that buildings are set back to ensure that:

larger buildings do not visually dominate the street or public space;

the dominant street wall scale is maintained; and

sun penetration and mitigation of wind impacts at street level (sic).

1. Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:
   • The Design Objectives.
   • The Built Form Outcomes of Table 3, Table 4 and Table 5 to the schedule.
   • Whether the development respects the built form scale and urban structure of the precinct where it is located.
   • Whether the development provides a high quality architectural response.
   • Whether the cumulative effect of the proposed development in association with adjoining existing and potential development supports a high quality of pedestrian amenity in the public realm, in relation to human scale and microclimate conditions including overshadowing and wind impacts.
2. The council acknowledges that the proposed building height is acceptable and ensures that the Town Hall and historical buildings in the block remain visually dominant.
3. Further, it takes no issue with respect to the proposed addition's side setback, noting that under the DDO2 the addition should be set back five metres from the centreline of Baptist Place on both sides (east-wing and central block). It says that a variation of five metres is acceptable given the existing built form, including the multi-level pedestrian bridge over Baptist Place, that the hotel suites face outwards and have an acceptable level of internal amenity in terms of daylight, sunlight, privacy and outlook and the function, character and amenity of the laneway.
4. However, it does not support a 3.3 metre variation for the upper level setback to Little Collins Street because it says that the proposed setback does not maintain the dominant street wall scale of the host buildings by providing a visually recessive addition. It says that the addition at the setback proposed does not achieve the design objective in DDO2 of maintaining the dominant street wall scale and protecting the unique built form.
5. The applicant says the proposed works are southward of Little Collins Street and therefore has no impact on sunlight access to public space. The addition will not impact upon any prominent landmarks (cited as the Town Hall and Historic buildings in Area 9) and will not reduce their visual dominance in the precinct. It says that the public realm amenity is undiminished and to the extent the additional height can be perceived at all it acts as a reinforcement of the built form character due to the sympathetic design fenestration relative to the existing building.

1. I agree with council that being an addition to the existing building, the key consideration relates to how the new built form will be read in the streetscape. This includes an appreciation of the three-dimensional form, the built form character to be reinforced in the Special Character Area, and the need to maintain the visual dominance of prominent landmarks.
2. I agree with the parties that Little Collins Street has a relatively narrow road reserve whereby acute upward views of the single level addition from directly in front of the review site are not possible.
3. However, I disagree with council that the proposal will be highly visible on approaches from the east and west. While features of the rooftop of the existing east wing host building are visible from select and fleeting vantage points along Little Collins Street when purposely looking for them, the proposal seeks to site the addition behind the existing retained chimneys, thereby maintaining the limited viewing aperture to this feature.
4. In any event, visibility of an addition is not a test in the Planning Scheme. Responding to the design objective of the DDO, which is to ensure that the height of new buildings reinforces the built form character of the area, I note that the overall height of the building is consistent with the mix of building heights evident in the immediate context. This is not an area in which there is consistency in either lot sizes, building heights and building styles and eras with varying street wall and upper level setbacks.
5. The mix of building style, building heights and upper level recession are part of the character of this area, and the proposal does not offend these elements. The proposed single level addition at the setbacks proposed will sit comfortably within this setting.
6. While DDO1 and DDO2 are the key tools to guide an appropriate built form outcome, the quantified requirements of the DDO2 (particularly) are discretionary. A permit may be granted to vary a discretionary design requirement expressed with the term 'should'.
7. Contextually, there are a number of additions to heritage and non-heritage buildings within the streetscape with varying upper level setbacks. These include the west wing of the review site (which has an upper level addition set back approximately 2.65 metres from the Little Collins Street frontage).
8. The building at 188-194 Little Collins Street (Shocko House), diagonally opposite the review site (former Godfreys Building) which has a site specific Heritage overlay (HO1255), has benefitted from a contemporary two-level rooftop addition, which appears to be set back approximately 1.5 metres from the original lower façade.
9. The Car Park Building at 185 Little Collins Street (which is listed on the Victorian Heritage Register) has been redeveloped as part of the landholding of the Scots Church development, and this has a significant tower component above the original building, set back approximately four metres from the Little Collins Street frontage.
10. While I accept that these applications were assessed on their merits against the planning controls at the time, they provide an existing context in which a new development should comfortably sit.
11. I agree that setting upper levels of a building back above the street wall is a common practice in the immediate area. However, upper level setbacks in the immediate area are often less than the five metres now preferred in the DDO2. In my view, where these existing setbacks are less than the five metres sought, the overall outcome is one in which the original building form remains dominant. I am satisfied that the extent of setback sought by this proposal is similarly acceptable, as:
    • The addition will not visually dominate the street, being only one level in nature.
    • The dominant street wall scale is unaffected by the addition.
    • There are no impacts arising to sun penetration or wind impacts at street level.
12. My decision should not be taken as confirmation that in all cases a less than five metre street wall setback is acceptable. I agree that upper level street setbacks enable the benefits of a preferred street wall height to be realised. This is particularly the case where street setbacks need to be of a sufficient depth to ensure that there is clear delineation between the street wall and tower elements above, otherwise the many benefits of the street wall element are diminished or lost.
13. In this case, the single additional level is not in any physical sense a podium/tower form, and the single level addition does not diminish the dominance of the original host building. In other words, no additional upper level setback is required to reduce the visual dominance of the modest extent of built form sought above the existing street wall.
14. Further, the council is satisfied that there is no need for additional setback which is often sought to mitigate the downward wind impacts from taller buildings and impacts to the pedestrian experience. The council acknowledges that the addition would not overshadow Little Collins Street.
15. There are therefore no sunlight or wind amenity impacts that would otherwise warrant an alteration to the setback from that proposed.
16. The proposal satisfies the design objectives for DDO1 and DDO2 by:
    • having no impact on sunlight access to key public places and open space areas;
    • proposing a height which reinforces the built form character of the immediate area;
    • having no impact on the visual dominance of prominent landmarks; and
    • providing a high quality and contextual architectural response.

1. Conditions were discussed at the hearing and any changes to the permit conditions contained in Appendix A of this order reflect those discussions plus further consideration by the Tribunal.
2. Council sought to impose a condition that required further information about the alignment of the proposed pedestrian air bridge over Baptist Place. For the purpose of clarity, council sought to ensure that the new bridge was aligned with the existing bridge below, and this was not opposed by the permit applicant. I have modified the draft condition provided by council to make it clear that the plans submitted for endorsement under the permit must provide confirmation that the proposed pedestrian bridge is aligned with that below.
3. I have also amended the condition to clarify the agreed position that the grade change required for the proposed bridge (due to the differing floor heights of the central block and the east wing) must be accommodated internally within the bridge structure whilst ensuring the external appearance of the bridge adopts a horizontal form (as per the bridges below).
4. As I am satisfied the proposed glazed balustrading is acceptable (subject to a reduction in overall height) I have not adopted council's preferred position that it be set back one metre from the front and side parapets.
5. I have adopted council's referred position that an east boundary window (to Baptist Place) be removed from the plans, as the applicant agrees with this position and the affected room retains the benefit of another window for light access.
6. I have retained other conditions sought by council relating to disability glare, discomfort glare and the requirement to enter into a Section 173 Agreement regarding the projections over the Council road (Baptist Place) as the applicant was satisfied that these were appropriate.

1. In conclusion and having regard to the requirements of Clauses 65 and 71.02, I consider that the proposal is an acceptable outcome, and that when assessed against all relevant policies it does, on balance, achieve a net community benefit. The decision of the responsible authority is set aside and a permit is granted.
2. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

201-207, 209-231 Little Collins Street and part of the airspace above Baptist Place, MELBOURNE VIC 3000

To construct a building or construct or carry out works

Construct a building or construct or carry out works

To vary, reduce or waive any requirement of Clause 52.34-5 and Clause 52.34-6

1. At all times what the permit allows must be carried out in accordance with the requirements of any document endorsed under this permit to the satisfaction of the Responsible Authority.

1. Prior to the commencement of the development, an electronic set of plans drawn to scale must be submitted to and approved by the Responsible Authority, generally in accordance with the plans prepared by CYJ Architects Pty Ltd dated April 2024, Revision C but amended to show:

(a) Confirmation that the pedestrian bridge aligns with or has a greater setback than the existing pedestrian bridge over Baptist Place.

(b) Confirmation that the horizontal grade change for the new pedestrian bridge level is accommodated internally within the structure.

(c) The glass balustrades be reduced in height to the minimum extent necessary to meet building regulations.

(d) Deletion of the window on the east boundary.

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

1. The development as shown on the endorsed plans must not be altered or modified unless with the prior written consent of the Responsible Authority.

1. Concurrent with the endorsement of plans pursuant to Condition 1, a Materials and Finishes Schedule must be submitted to and approved by the Responsible Authority. The Schedule must include the colour, type and quality of materials showing their application and appearance. The materials and finishes must be high quality, contextually appropriate, durable and fit for purpose. The materials and finishes must be demonstrated in coloured elevations or renders from key viewpoints and linked to a physical sample board with coding.

1. No architectural features, plant and equipment or services other than those shown on the endorsed plans are permitted above roof level, unless with the prior written consent of the Responsible Authority.

Demolition and Construction Management Plan (to the satisfaction of Site Services)

1. Prior to the commencement of the development, a detailed Demolition and Construction Management Plan must be submitted to and be approved by the Responsible Authority - Site Services. This Demolition and Construction Management Plan must be prepared in accordance with the City of Melbourne's Code of Practice for Building, Construction and Works and is to address the following:

(a) Public safety, amenity and site security.

(b) Operating hours, noise and vibration controls.

(c) Air and dust management.

(d) Stormwater and sediment control.

(e) Waste and materials reuse.

(f) Traffic management.

1. Specular light reflectance must be less than 15 per cent for all external building glazing and cladding materials and finishes when measured at an angle of 90 degrees to the surface of the material (normal incidence), except with the written consent of the Responsible Authority.

1. Extended periods of discomfort glare for pedestrians and occupants of surrounding buildings caused by glazing and external cladding materials and finishes with specular or glossy finishes (including polished metal cladding, finished stainless steel, glazed tiles, high gloss paint finishes) must be avoided or minimised, to the satisfaction of the Responsible Authority.

Landscape plan including on-building planting

1. Prior to commencement of development, a Green Infrastructure/Landscape Plan prepared by suitably qualified person(s) must be submitted to and approved by the Responsible Authority. The Green Infrastructure/Landscape Plan must detail all proposed on-building landscaped areas and include the following:

(a) A planting schedule of proposed vegetation details such as:

1. Genus, species, common names, cultivar names
2. Quantities of all plants
3. Pot size at time of planting
4. Mature height and width of all plants
5. Diversity of plant species and forms

(b) Green roof/ green wall details such as:

1. Annotated construction details including sectional diagrams
2. Support structures
3. Materials
4. Growing media, volume, depths and specifications
5. Waterproofing
6. Drainage
7. Irrigation systems demonstrating use of non-potable water sources (rainwater, stormwater and recycled water)

1. Prior to commencement of development, a Green Infrastructure/Landscape Maintenance Plan prepared by suitably qualified person(s) must be submitted to and approved by the Responsible Authority. The Green Infrastructure/Landscape Maintenance Plan must detail all proposed on-building landscape areas and include the following:

(a) A statement to describe how the canopy, vegetation and urban ecology planning provisions that are required by the development will be successfully maintained in the future.

(b) Maintenance tasks for establishment period.

(c) Ongoing maintenance schedule for after the initial 52-week period detailing weed and pest management, succession planting, re-mulching, plant nutrition.

(d) Re-planting timeframes for poor-performance vegetation that interfaces with the public realm.

(e) Access requirements/agreements.

(f) Maintenance schedule for green infrastructure structures.

Projections over Council roads (Baptist Place)

1. Prior to the commencement of the development on the land, the owner of the land must enter into an agreement pursuant to Section 173 of the Planning and Environment Act 1987. The agreement must provide the following:

(a) Liability and maintenance of those parts of the development projecting into airspace or sub-soil of land under the care and management of Council ('Projections').

(b) Payment of a lump sum license premium (payable at the outset rather than an annual fee) in respect to the Projections.

(c) A disclaimer of any right or intention to make or cause to be made at any time any claim or application relating to adverse possession of the land occupied by the Projections.

The owner of the land must pay all of the Melbourne City Council's reasonable legal costs and expenses of this agreement, including preparation, execution and registration on title.

1. Prior to occupation of the development approved by this permit, all new or extended walls on or facing the boundary of adjoining properties and/or a laneway must be cleaned and finished to a uniform standard to the satisfaction of the Responsible Authority. Unpainted or unrendered masonry walls must have all excess mortar removed from the joints and face and all joints must be tooled or pointed also to the satisfaction of the Responsible Authority. Painted or rendered or bagged walls must be finished to a uniform standard to the satisfaction of the Responsible Authority.

1. Prior to the commencement of the development, a stormwater drainage system incorporating integrated water management design principles must be submitted to, and approved, by the Responsible Authority - City Infrastructure. This system must be constructed prior to the occupation of the development and provision made to connect this system to the City of Melbourne's stormwater drainage system.

1. This permit will expire if one of the following circumstances applies:

(a) The development is not started within three (3) years of the date of this permit.

(b) The development is not completed within five (5) years of the date of this permit.

The Responsible Authority may extend the permit if a request is made in writing before the permit expires, or within six (6) months afterwards. The Responsible Authority may extend the time for completion of the development if a request is made in writing within 12 months after the permit expires and the development started lawfully before the permit expired.

1. [1] On 2 September Amendment VC283 to the Melbourne Planning Scheme was gazetted. According to the Explanatory Report, Amendment VC283 to the Victoria Planning Provisions and all planning schemes is required to update the Planning Policy Framework to implement Plan for Victoria (Department of Transport and Planning, 2025). The amendment updates and introduces policy, removes references to Plan Melbourne 2017-2050: Metropolitan Planning Strategy and makes general drafting improvements and clarifications. The interim order provided the opportunity for the parties to provide a written submission addressing any implications Amendment VC283 may have for this proceeding, should they wish to do so. I have considered the submissions from the parties in response to this order.

[2] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) states a failure

to make a decision is deemed to be a decision to refuse to make the decision.

[3] The submissions of the parties, any supporting exhibits provided to the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.