Victorian Civil and Administrative Tribunal|2002-11-28|Before: Ms J, Mr P

Searspoint Pty Ltd v Melbourne CC & Ors [2002] VCAT 1538 (28 November 2002)

Application under s. 77 of the Planning and Environment Act 1987; Melbourne Planning Scheme; Mixed Use Zone; Southbank Village; Design and Development Overlay DDO18B (Area 23); Design and Development Overlay DDO27 (City Link Exhaust Stack Environs); Urban Design; Building Heights; Status of Amendment C20; Neighbourhood Character; Overlooking; Noise; Loss of Views; Traffic; Car Parking; Amendment VC16.

The decision of the Responsible Authority in relation to permit application no. TP02/212 is affirmed. Pursuant to Section 85(1)(a) of the Planning and Environment Act 1987, it is directed that a permit must not be granted.

Mr M Dreyfus QC and Mr M Bartley, instructed by Phillips Fox Solicitors, appeared on behalf of the Applicant for Review. Mr Lucy Phillips Fox Solicitors was in attendance on Day 4 of the Hearing. Mr Dreyfus QC called the following persons to give evidence:

s Mr T Biles, Town Planner of Contour Consultants Aust. Pty Ltd.

s Mr G Tucker, Traffic Engineer of GTA Consultants Pty Ltd.

s Mr R Stent, Architect of Hayball Leonard Stent Pty Ltd.

Ms N Bannister of Blake Dawson Waldron Solicitors, appeared on behalf of the Responsible Authority and called Mr R Moore, Urban Designer with the City of Melbourne, to give evidence. Ms Bannister also tendered submissions on behalf of Ms C Lew, Ms J Bilby and R & H Weir, all Respondent Objectors. Mr P Priest of the Council was also in attendance.

Mr I Lonie of Clayton Utz Lawyers appeared on behalf of Merchant Pacific Pty Ltd, a Respondent Objector. He called the following persons to give evidence:

s Mr A Cook, Town Planner of ERM Australia Pty Ltd.

s Mr P Brook, Architect of Peddle Thorp Architects.

s Mr R Symons, Traffic Engineer of Ratio Consultants Pty Ltd.

Mr P Amor and Mr W F Stephens appeared on their own behalf as Respondent Objectors.

Ms N Johansen appeared on her own behalf as a Respondent Objector on Day 1, part of Day 2, and Day 3 of the Hearing.

Mr R Easton of Easton Consulting appeared on behalf of A Walton, D Dumble and Body Corporate 325178U on Day 1 and part of Day 2 of the Hearing.

Mr T Young of Baker & McKenzie Solicitors appeared on behalf of Transurban on part of Day 2 of the Hearing. Mr A Brearley of the same firm appeared on part of Day 3 of the Hearing.

The parties presented written and oral submissions and a number of plans, photographs and other documents were tendered to the Tribunal. A variety of images of the proposed development were also tendered. All material is retained on file and has been considered by the Tribunal. All witnesses were made available for cross-examination.

The subject site and locality were inspected by the Tribunal between the third and fourth days of the Hearing and subsequent to the Hearing.

1. This is an Application under Section 77 of the Planning and Environment Act 1987 brought by Searspoint Pty Ltd to review a decision by the Melbourne City Council ("the Council") to refuse to grant a permit in application no. TP02/212. A Notice of Refusal was issued by the Council on 17 May 2002 on the following grounds:

* The proposal does not meet the preferred height of 4-5 storeys, as set out in Clause 22.13 (Development and Use in the Mixed Use Zone) and shown on Map 3 Southbank, dated 27 December 2001.

* The proposal does not meet the objectives of Design and Development Overlay 18, Southbank Area, which requires development in Area 23 to be compatible with the existing 4-5 storey Southbank Village residential precinct.

* The proposal does not acknowledge the importance of Sturt Street as a pedestrian focus with physical and visual connections to the CBD and Arts Centre Spire.

* The proposal represents an overdevelopment of the site in terms of built form, particularly in relation to height and bulk.

* The proposal does not respect the residential amenity or future development potential of adjacent sites.

* The proposal does not adequately provide for the amenity, safety, and convenience of future occupiers of the land.

* The proposal does not adequately meet the parking requirements likely to be generated by occupants and visitors to the site.

2. The Application for Review was lodged on 29 May 2002 on the following grounds:

* The proposal meets the requirements of the Melbourne Planning Scheme.

* The proposal recognises the importance of Sturt Street as a pedestrian focus.

* The proposal will not be detrimental to the amenity of the area, is not an overdevelopment and meets the relevant design and planning policies of the Melbourne Planning Scheme.

3. At the commencement of the Hearing, Mr Dreyfus QC sought leave to substitute the plans submitted with the permit application with those circulated in accordance with the Tribunal's Practice Note. The statement of service was dated 23 September 2002.

4. There being no objection from any party, and pursuant to the provisions of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal granted leave for the substitution of the plans submitted with the permit application with those dated September 2002.

5. At the commencement of the Hearing, Mr Easton sought leave for D Dumble to be joined as a party. As there was no objection, the Tribunal granted leave for this Mr Dumble to be joined into the proceedings in accordance with the provisions of the Victorian Civil and Administrative Tribunal Act 1998.

6. During the latter part of Day 2 of the Hearing, Mr Young appeared on behalf of Transurban. He indicated that pursuant to the provisions of Design and Development Overlay 27 Transurban was notified of the permit application by the Responsible Authority following the receipt of the permit application. Transurban had requested further information from the Council. None had been provided. Mr Young indicated that further information had more recently provided by the Applicant (via Phillips Fox Solicitors) and that further modelling work was sought to be undertaken by Transurban to allow it to come to a position in relation to the Application. That may take two weeks. The Tribunal asked whether Transurban sought to be joined as a party, and Mr Young advised that his client wanted to advise the Tribunal of its position and had no further instructions. The Tribunal stated that it would give some direction in relation to this matter at the commencement of Day 3 of the Hearing. The Tribunal also advised Mr Young that if he was in receipt of any further instructions from Transurban, including whether it wished to seek leave to be joined as a party, they could be conveyed at the commencement of Day 3 of the Hearing.

7. At the commencement of Day 3, Mr Brearley attended on behalf of Transurban. Mr Brearley made an application for Transurban to be joined as a party to the proceeding. He also advised that the modelling work could be completed within 7 days and could subsequently be made available to the Tribunal and other parties. He suggested that if necessary, the author of the report could then be called to give evidence and be cross-examined by the parties.

8. There being no objection from any party, the Tribunal granted leave for Transurban to be joined into the proceedings in accordance with the provisions of the Victorian Civil and Administrative Tribunal Act 1998. In addition, all parties concurred with the process proposed by Mr Brearley. Consequently, the Tribunal directed that any report be filed with the Tribunal and served on the other parties by 30 October 2002. If necessary, a directions hearing could be held to determine whether and what further proceedings would be necessary. Transurban was also to be advised of the resumed Hearing date, which occurred through the Registrar of the Tribunal.

9. Subsequently, by letter dated 31 October 2002 from Baker & McKenzie Solicitors, a copy of a report prepared by GHD relating to the impact of the proposal on the plume stack venting was forwarded to the Tribunal and other parties. The report indicated that although the proposed development would impact on the plume stack venting, it would not bring Transurban into breach of its licence conditions.

10. At the commencement of Day 4 of the Hearing, the future consideration of the GHD report was discussed and oral submissions made by Mr Lonie, Ms Bannister, Mr Stephens and Mr Dreyfus. A letter from Transurban, dated 8 November 2002, was received by the Tribunal during the course of the fourth day of the Hearing in which the Tribunal was advised that Transurban confirmed its position that it did not oppose the permit application, that it wished to withdraw from the proceeding, and that it did not wish the GHD report to be received as evidence.

11. The Tribunal subsequently ruled that it would note Transurban's position, and would determine the Application for Review based on the submissions and evidence received over the four days of the Hearing. The Tribunal stated that it remained open to it, having considered all of the material before it, to re-convene the Hearing or direct the receipt of further material and, if appropriate, the Tribunal may determine to take that approach.

12. The subject land is located on the east side of Sturt Street, north of Miles Street and south of Grant Street. It is regular in shape and has a frontage of 20.12 metres, a depth of 90.58 metres, and a total area of around 1,831 square metres. The land extends to have a second street frontage to Dodds Street and is relatively flat.

13. The subject site is occupied by a two storey commercial building with ground level retailing and an office above. Retail uses include a convenience shop, dry cleaner and video store. The building does not occupy the whole of the site. An open ground level car park faces Dodds Street with access from that street. The car park provides for 26 car spaces associated with the uses on the site and a further 6 spaces that are publicly available but have a 15 minute time restriction at nominated hours.

14. Given the slightly off-set orientation of the site, for ease we refer to the abuttals of the subject site as follows - the boundary with No. 151 Sturt Street as "north", the boundary with Dodds Street as "east", the boundary with the City View apartments as "south", and the boundary with Sturt Street as "west".

15. To the north is No. 151 Sturt Street which is owned by Merchant Pacific Pty Ltd. It has a frontage of 30 metres, but a carriageway easement extends along its northern boundary with a width of 2.62 metres. This adjacent site also extends from Sturt Street through to Dodds Street. It is occupied by a two storey office with associated ground level parking. Two double storey buildings are sited further north leading to the historic Malthouse Theatre and recently completed Australian Centre for Contemporary Art ("ACCA").

16. To the south of the subject site is the City View apartment development, on the north-east corner of Sturt and Miles Street. It comprises 3-4 storey "garden" or low-rise apartments and a 9 storey residential tower.

17. On the east side of Dodds Street is the Southbank Royale apartment complex. It comprises 3-4 storey apartment buildings and a higher multi-storey building.

18. On the west side of Sturt Street, opposite the site, is land associated with ramps to City Link.

19. Sturt Street is a collector road with tram services. An off-ramp from City Link joins Sturt Street further north of the subject site utilising traffic signals. Parking restrictions apply in Sturt Street. Dodds Street is a local road. Parking restrictions also apply.

20. It is proposed to demolish the existing structures and construct an 11 storey building. The proposal includes the following key components:

s Retail tenancies at ground floor level, of 1,016 square metres, including a restaurant/café and "convenience/café". The restaurant/café to the east end of the ground level was said in Mr Tucker's evidence to comprise 46 seats.

s Commercial tenancies to the street frontages of levels 1, 1A and 2, and well as across levels 3 and 4, with a total floor area of 2,846 square metres.

s 64 residential apartments on levels 5 - 10, comprising 56 one and two bedroom units (including one bedroom units with studies), and 8 three bedroom units.

21. The ground level provides a pedestrian link between two rows of retail tenancies and access to a centrally positioned lobby.

22. Vehicle access is proposed via a two way ramp off Dodds Street, abutting the southern boundary, rising to the car parking levels above the ground level. The internal ramps between floors are single car width.

23. The building is proposed to be constructed to the Sturt Street frontage at ground level and levels 1-4 (excluding a narrow indent). Along this elevation, at level 5, the narrow indent of 1 metre remains, with the recessed terrace provided along part of this elevation. This form is substantially the retained through levels 6 - 10.

24. Along the north boundary, the proposed development has no setback at the ground level and levels 1-2. At levels 3 and 4, part of the development abuts the north boundary and the remainder is setback by 3 metres. The same setback is provided to the remaining levels, with projecting balconies provided in the setback area.

25. The development is proposed to abut the southern boundary from ground level to level 2. At levels 3 and 4, a setback area of 3 metres is provided for section along this boundary. At levels 5-7 that setback is substantially maintained with parts of the elevation setback by 1.2 metres. Deeper setbacks are provided at levels 8-10.

26. To Dodds Street, the development abuts the boundary at ground level, level 1, 1A and level 2.

27. To Dodds Street, at level 3, a terrace is provided with a setback of around 6 metres. The 6 metre setback is maintained (with some recessed terraces) to level 7. At level 8, a terrace is included within a deep setback of some 15 metres. The larger setback is the same at levels 9 and 10, but terraces or balconies are excluded to this edge.

28. The maximum height of the building is 43.1 metres, measured to the top of the rooftop plant. To the Sturt Street frontage, the façade height is around 41.2 metres.

29. Each dwelling is provided with a terrace/balcony (except for Unit 13 on levels 5, 6 and 7). They range in size from 6 square metres to 71.9 square metres.

30. A strong contemporary design is provided to the Sturt Street elevation, with a variety of materials and finishes.

31. Between the third and fourth days of the Hearing, a plan was circulated on behalf of the Applicant showing a basement level providing a net increase of 44 car spaces compared with the proposal described above. An additional access ramp is shown to the Dodds Street frontage, with variations to the ground floor layout and Dodds Street elevation. Some loading facilities are shown within the basement. The plans were not sought to be substituted but were relied upon by the Applicant as demonstrating changes that could be made to the proposal.

32. The subject land is located in a Mixed Use Zone under the Melbourne Planning Scheme. At Clause 32.04, the purpose of the Zone is:

* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To provide for a range of residential, commercial, industrial and other uses which complement the mixed-use function of the locality.

* To encourage residential development that respects the neighbourhood character.

s to use the land for the purpose of offices, retail premises or shop.

s for buildings and works associated with a Section 2 use.

34. The State Planning Policy at Clause 19.03 of the Scheme addresses urban design and built form. It applies instead of Rescode because the height of the development is more than four storeys. Design principles relevant to this Application include provisions relating to context, the public realm, pedestrian spaces, architectural quality, light and shade.

35. The subject site is affected by two Design Development Overlays (DDO).

36. Schedule 18 of the Design and Development Overlay addresses Southbank. The design objectives for DDO18 include:

s To ensure that the design of new development respects the development potential of adjacent sites.

s To maintain the visual dominance and vistas to the city.

s To encourage high-density residential developments to complement and support the function of the city with low rise commercial and other uses to service the local area.

s To encourage a high standard of urban design which offers interest, safety and convenience to people living and working in the area.

s To retain views of the Arts Centre spire from St Kilda Road both from the south and the north, along Sturt Street.

37. At Clause 43.02-2, a permit is required to construct a building and such building "must be constructed in accordance with any requirements in a schedule to the overlay". The Clause goes on to provide, however, that a permit may be granted to construct a building not in accordance with such requirements.

Buildings or works should not exceed the maximum building height and/or plot ratio, or be constructed or carried out within the setback distance from the site boundary, specified in the tables to this schedule.

An application to exceed the maximum heights and/or plot ratio or to vary setbacks must

be accompanied by a site analysis plan and a written urban context report documenting how the development will achieve the specific design objectives and outcomes of this schedule. [emphasis added]

39. Table 2 to Schedule 18 includes the following:

Development is compatible with the existing 4-5 storey Southbank Village residential precinct.

40. The map attached to the Schedule shows Area 23 as applying to the area bounded by Grant Street, Dodds Street, Coventry Street and Sturt Street and then the northern portion of the block bounded by Sturt Street, Miles Street and Kingsway.

42. Clause 22.13 addresses land use and development in the Mixed Use Zone, including Southbank. It has the following objectives:

s To encourage growth in residential and compatible commercial, education and institutional uses in mixed-use areas.

s To enhance the distinctly urban physical quality and character of the City's streets, parks and built form through sensitive and innovative design.

s To ensure that environmental impacts (i.e. solar access, microclimate, wind mitigation) associated with new buildings or works support and contribute to the high-quality and enjoyment of the diverse public open space network, including streets, boulevards and civic spaces.

s To ensure new development supports the objectives of the emerging residential and mixed-use urban village concept.

s To ensure that all development promotes and supports high-quality pedestrian linkages, activities and the use of public transport.

43. Clause 22.13 sets out general design and land use principles as well as principles relating to Southbank. Of relevance to the matters raised in this Application are:

s A compatible and sustainable mix of residential and non-residential uses is encouraged, including ground level commercial and public activities in residential and institutional buildings.

s Non-residential uses should protect residential amenity from noise, light, and odours emitted from the site and new residential development should be designed to protect its occupants from external noise and not unduly prejudice the operation of surrounding non-residential uses.

s Land use should not unduly impact on traffic conditions or on-street car parking in the locality.

s Generally the height of new development or additions to existing buildings should be consistent with the dominant parapet height in the streetscape and with the objectives of the Municipal Strategic Statement.

s Development should not cause a significant loss of amenity to any nearby or adjacent dwellings by way of overshadowing, overlooking or massing. It should not result in any significant loss of sunlight at street level in streets with high pedestrian use and in adjoining residential properties between 11.00 am and 2.00 pm on 22 September or 22 March.

s Development should maintain and enhance the visual dominance of prominent landmarks and emerging urban form.

s Development should address the street, by orienting active parts of buildings to the street frontage.

s Buildings should not have blank walls on street frontages and the design of ground floor levels should contribute to the safety and visual experience of pedestrians and to the activity of the street.

s Car parking facilities and vehicle crossovers should not dominate the appearance of the development or the street frontage.

s New buildings should be designed and constructed to maximise energy efficiency.

s Where appropriate, habitable rooms of new dwellings should be located and designed to limit internal noise levels to a maximum of 45 dB in accordance with relevant Australian Standards for acoustic control.

The key objective for this area is to create a high-quality `downtown' residential and service business precinct, extending the built form of the CBD in an area generally contained by the City Link, and to consolidate the lower-scale Southbank Village residential precinct around the College of the Arts and to the south of the City Link.

To help achieve this objective and address the issues and opportunities identified in the Municipal Strategic Statement, the following matters should be taken into account when considering an application for a new land use or development in the area:

s High-density and high-rise residential development should be located to the north of the City Link and generally to the west of Moore Street alignment provided it is designed to create good ground level pedestrian amenity.

s The area south of the City Link should be consolidated as a medium to high-density residential precinct.

s Only small-scale commercial development should be located in this area due to the traffic constraints.

s Development and land uses that contribute to or support the arts role of the area are encouraged.

s Development should maintain the vista to the Shrine from St Kilda Road.

s Development should maintain the visual dominance of the Art Centre spire and vista to the spire from Sturt Street.

s Development around the City Link exhaust stack should be designed so that the wind-driven dispersal of pollutants from the stack is not impeded.

s The height of new development should be generally in accordance with the preferred heights nominated on Map 3.

44. Map 3 Preferred Building Heights (Southbank) shows DDO18 [4-5 storeys (15 m)] to apply to the same area as described above. Other heights are nominated in various parts of Southbank, with higher forms nominated north of City Link, south of Coventry Street and west of Dodds Street.

45. Policy references cited in Clause 22.13 include the Southbank Village Structure Plan 1994 and the Southbank Structure Plan 1998.

46. Design and Development Overlay 27 applies to the City Link Exhaust Stack Environs. It requires notice to be given to (inter alia) Transurban City Link Limited and the Environment Protection Authority where a permit is required to construct a building or carry out works in the Overlay area.

47. Car parking requirements are set out at Clause 52.06. Specific car parking requirements are set out for restaurant, office and shop. The decision guidelines of Clause 52.06-1 set out a range of matters to which the Responsible Authority (or Tribunal on review) must consider if an application seeks to waive or reduce the parking requirement or if no rate is specified (inter alia):

* The availability of car parking in the locality.

* The availability of public transport in the locality.

* Any reduction in car parking demand due to the sharing of car spaces by multiple uses, either because of variation of car parking demand over time or because of efficiencies gained from the consolidation of shared car parking spaces.

* Any car parking deficiency or surplus associated with the existing use of the land.

* Any credit which should be allowed for a car parking demand deemed to have been provided in association with a use which existed before the change of parking requirement.

48. Clause 52.07 requires consideration of loading and access arrangements. In this case, a permit is required to waiver loading requirements set out in the Scheme. A permit may be granted if the land area is insufficient or adequate provision is made for loading and unloading to the satisfaction of the Responsible Authority.

49. Finally, a number of other policies set out in the State and Local Planning Policy Frameworks of the Planning Scheme are relevant to this proposal, including Clauses 13, 14, 15, 16, 21 (Municipal Strategic Statement known as "City Plan"), Clause 22.02 (Sunlight to Public Spaces) and, as appropriate, the general decision guidelines set out at Clause 65.

50. The Metropolitan Strategy was launched on 8 October 2002 and Amendment VC16 was introduced on the same date. The Advisory Note relating to the implementation of the Strategy states that Melbourne 2030 has the status of a seriously entertained strategic plan and policy statement. Melbourne 2030 is required to be considered by the Tribunal in reviews of decisions on permit applications. Responsible Authorities and the Tribunal on review are required to consider whether a proposal will produce acceptable outcomes in terms of Melbourne 2030.

51. We drew the parties' attention to these provisions on the first day of the Hearing. Ms Bannister, Mr Lonie and Mr Dreyfus addressed Melbourne 2030 in their submissions and through the evidence of the town planning witnesses, Mr Cook and Mr Biles.

52. We understand that sunset provisions associated with DDO18 (and others within the Melbourne Planning Scheme) arise from the findings of the Panel/Advisory Committee reviewing the new format Melbourne Planning Scheme. The Panel/Advisory Committee recommended a strategic review of built form policies in Mixed Use Zones for reasons that are set out in its April 1998 report. We understand from the C20 Panel report that the new format Melbourne Planning Scheme was approved on the basis that such a review be undertaken. Amendment C20 is the culmination of further work to respond to that matter. The sunset clause to the DDO has been extended on several occasions, as was described by Mr Stephens in his submission.

53. We were advised that Amendment C20 was adopted by the Council in June 2002 and then forwarded to the Minister for approval. There appears to have been no indication given to the Council by the Department or Infrastructure or Minister as to when or whether the Amendment will be approved.

54. The Amendment addresses a large range of matters including height controls in the Southbank area. The version of the Amendment adopted by the Council in June 2002 does not adopt all of the recommendations of the independent Panel that reviewed the Amendment and submissions in relation to the Amendment (Panel report dated December 2001). Of relevance to this Application is that the Panel recommended a discretionary height control of 32 metres for the subject site and the remainder of the area between Grant Street, Dodds Street, Coventry Street and Sturt Street which is currently the subject of a discretionary 15 metre maximum building height. The Council adopted version of Amendment C20 proposes the subject site and same block have a mandatory 14 metre maximum height limit. The basis for the Panel's recommendation is set out in its lengthy report, notably at pages 109 - 113 in relation to Southbank Village and Sturt Street and we refer to its findings again below. Map 1 at Appendix D shows the subject site within the "Sturt Street" area and "Southbank Village" to the east side of Dodds Street. It is apparent that the Council and Panel defined these areas differently.

55. During the course of the Hearing, there was discussion as to whether the Panel had recommended the inclusion of a podium level to Sturt Street. We do not recite the submissions, but although arguably open to interpretation, we consider that the inclusion of a podium level to Sturt Street, as was proposed in the exhibited form of the Amendment, could be interpreted as being supported by the Panel. At page 109 of the Panel report, it is evident that the podium setback from Sturt Street was part of the Panel's consideration of the building height requirements of the DDOs it was required to review. At page 113, the building height requirements the Panel recommends are based on "the exhibited building height requirements" and an additional requirement relating to the DDO for the Southbank area, south of City Link. That additional requirement was for an appropriate podium setback height within 6 metres of Dodds Street. No recommendation was made by the Panel to delete the podium requirement to Sturt Street. If we are wrong, our findings in relation to the Application for Review nonetheless remain the same. There was no debate that the Panel recommended a podium form to Dodds Street.

56. The weight we can give the height controls in the Amendment as a seriously entertained proposal differs to an adopted Amendment that is consistent with a Panel's recommendation. It must have less weight in that circumstance and we therefore consider the Council's adopted mandatory height control of 14 metres in that context. Having said that, the Council appears to have pursued the matter seriously and relatively consistently. Certainly, parts of the Amendment were supported by the Panel, such as the thrust of Clause 22.13 and we give that weight. We are also required by Section 60 of the Planning and Environment Act 1987 to take into account the adopted Amendment C20 and, we add, Amendment C60 that commenced exhibition in mid November 2002 (a copy of which was provided by the Council). That latter Amendment is a revised Municipal Strategic Statement and we note that it was generally not a point of debate between the parties. It remains, however, that the existing provisions of the Planning Scheme have greatest weight and that was not challenged by the parties.

57. Our position is consistent with another division of the Tribunal, comprised of the same Presiding Member, that has addressed similar matters in Application for Review No. P1653/2002 Metaxas Architects v Melbourne City Council and Others. Indeed, some of the remarks are identical.

58. We have had regard to the policies and decision guidelines of the Planning Scheme, considered the submissions and evidence presented by the parties, and inspected the subject site and locality. The key issues for consideration are:

s whether the proposed works represent an acceptable design response in urban design, streetscape and neighbourhood character terms;

s whether unreasonable off-site amenity impacts will result in terms of overlooking, noise and visual bulk.

s whether the proposed car parking and traffic arrangements are acceptable.

59. We do not recite all material presented, as the submissions and statements of evidence are retained on file.

Urban Design, Streetscape and Neighbourhood Character Considerations

60. The strategic direction for the area in terms of built form, as described in the current Scheme, envisages Southbank Village as continuing its growth as a "low rise" precinct, stepping down from more intensive and high rise developments north of City Link. It is relevant that the current controls encourage high density, but not specifically high rise, development in the area of the subject site.

61. We understand from the submissions presented to us that this has been a consistent theme, extending back some 8 or more years when the area was located within the former City of South Melbourne. The 1994 Southbank Village Structure Plan refers to the area becoming a purpose built arts-village. On one view, when considering the change that has occurred in the past decade, it could be said that the area has developed as has been planned in terms of land use and mainly in terms of building form. From our reading, and the submissions presented to us, Amendment C20 seeks to reinforce that direction. The Panel did not oppose a lower-rise form when compared with the area north of City Link, however, it did not regard the lower scale development that has occurred as setting the benchmark for future residential development. That is one area where the Council, Department of Infrastructure and Panel diverge in their positions. The C20 Panel also concluded that pedestrian and residential amenity were important qualities, but not necessarily incompatible with higher buildings (see page 110). It regarded the use of performance criteria as important in ensuring that sunlight continues to penetrate to street level, the use of podiums and the implementation of many of the principles embodied in the proposed Clause 22.17 as a means by which street level amenity could be protected and improved. It also preferred strong built forms along Sturt Street to complete with the dominance of City Link and make Sturt Street and interesting urban place. For these reasons, the Panel opposed a limitation of 4 storeys and recommended a 32 metre (8 storey - based on 4 metre floors). It considered that this would meet the objective of City Plan of a lower scale of development in this area while taking advantage of redevelopment opportunities.

62. It is not our role to adopt a position in a debate as to whether the Council's or Panel's recommendations are preferable. It is apparent that the Council, Department of Infrastructure and the Panel have various views about the future development of this area and the recent release of Melbourne 2030 may add another component to the ongoing tension. We are mindful of the strength of the criticism of the Council's position by both the Panel reviewing the new format Melbourne Planning Scheme (that led to the building height and control review) and Amendment C20.

63. We are not persuaded that the proposal is acceptable in terms of the existing Planning Scheme provisions. In addition, when considering both the Panel's recommendations in relation to Amendment C20 and the Council's adopted version of that Amendment, we reach the same conclusion. We set out our reasons below.

64. The Southbank Village area, south of City Link (Grant Street) is one that is generally low in form, relative to the many surrounding higher structures. Although the design outcome in DDO18 for this area (23) is "Development is compatible with the existing 4-5 storey Southbank Village residential precinct" (Tribunal emphasis), that is not an accurate description for the block surrounded by Grant Street, Dodds Street, Coventry Street and Sturt Street. As observed by Mr Cook, that area is generally 2-4 storeys with some taller buildings at around 8 storeys. This was also noted by the Panel/Advisory Committee reviewing Amendment C20 (see page 74).

65. Some reliance was placed on the presence of, and approval of, taller buildings in the area by the Applicant, and we have found it useful to examine those below:

9 storey (conversion of former World Vision offices)

Panama Apartments (cnr. Sturt & Miles Sts at Nos. 175-187 Sturt St)

Approved (not constructed) at 10 storeys as serviced apartments

Melburnian Apartments (cnr. Grant St & St Kilda Rd)

* Heights of tower elements as cited in Mr Cook's evidence, noting that the number of levels differs in Mr Bile's evidence for the Melburnian Apartments (25 storeys), Panama Apartments (17 storeys) and Sovereign Apartments (12 storeys).

Note: We note that the Council's position to the Panel/Advisory Committee and officer positions in response to the C20 Panel report differ again but are not included in this table.

66. We are aware that the Tribunal in the Panama case [Metier 3 Pty Ltd v Melbourne City Council Appeal No. 1997/74037] gave weight to the planning control regime existing at that time, prior to the introduction of the new format Planning Scheme. That Scheme was described by the Tribunal as encouraging "high density high rise development in this area" and the Tribunal noted "that Sturt Street in this vicinity already contains three substantial high rise buildings". We also note that the Tribunal found that the objectives of the new format Scheme would not be impaired by approval of the Panama development, even if the new format Scheme was adopted without alteration.

67. The decision of the Tribunal in the Pabuno case [Application for Review No. 1999/56513 Pabuno Pty Ltd v Melbourne City Council and McDonald and Ors] was made in the context of the current Scheme. We note the findings of the Tribunal at paragraphs 35 and 36 wherein the Tribunal appears to give significant weight to the context of the site and its compatible relationship with nearby high rise buildings and other elements that comprised its context. The Tribunal also appears to have given weight to the height limits that applied nearby (24 metres and 30 metres). We also observe the different use as serviced apartments, although that does not appear to be particularly significant.

68. The subject site is within DDO18B (Area 23) with a maximum but discretionary height limit of 15 metres. Two of the high-rise developments in the same precinct are conversions of older existing buildings and, from the 1994 Structure Plan, appear to have been strongly supported for residential use as part of the early and pioneering development of the area. We note the presence of higher structures in the wider area, such as south of Coventry Street, however, it is significant that a different height regime is applied by the current Design and Development Overlay controls and, in some cases, would continue to apply if Amendment C20 is adopted in accordance with the Panel's recommendations. We also observe, and find it relevant, that the Panel recommended a 16 metre limit in some parts of the precinct, despite the presence of some existing higher structures.

69. It may be initially attractive to find that, as there are tall buildings in the Southbank area, a development of 11 storeys on the subject site would not be a surprise or an anomaly. However, such an approach would not give weight to the existing controls for the area. Moreover, we find the following circumstances distinguish the sites with taller towers and the proposal for the subject site:

s the existing taller buildings within DDO18B (Area 23) are confined to former office buildings that were converted some time ago.

s planning permits have issued for two corner sites. The permit for one site was issued under controls that pre-date those now applying (Panama) whereas the serviced apartment complex at No. 231 Sturt Street (Pabuno) was under the current controls. There was some common ground in the evidence and submissions presented at the Hearing that construction difficulties may mean that the Pabuno development is unlikely to proceed.

s sites with tower elements are generally substantially larger than the subject site and involve tower elements positioned on part of the site rather than the whole site. The former IBM tower is an exception to that.

70. These circumstances generally contrast with the subject site which is mid-block, small in area, and where much of the land is proposed to be developed to 11 storeys. The proposal has sought to achieve a high level of intensity. However, the constrained land size means that there is little left to provide a setting for this building, contrary to a form which includes podium treatments and building spacing/separation.

71. Ms Bannister's submission was in part that the Council encourages residential development in Southbank but that existing levels of residential amenity and the prevailing neighbourhood character are required to be respected. We accept that these objectives are set out in Clause 21 and, in terms of the latter, is a purpose of the Mixed Use Zone. However, we are also required to consider the strategic directions for this locale and, in that context, what reasonable expectations are. The prevailing character is not 4-5 storeys and, even if adopting that as the desired benchmark as currently set out in the Scheme, change is inevitable.

72. At 41+ metres (excluding lift over-run), the proposal is inconsistent with the design outcome of DDO18 currently included in the Scheme that adopts a preferred maximum height of 15 metres and seeks an outcome where the scale of development is compatible with 4-5 storeys. At that height, and with no podium to Sturt Street, the proposal is also not consistent with the adopted version of Amendment C20 (DDO39 or Clause 22.13) or with the Panel's recommendations in relation to height (32 metres) and form. In that context, we find a proper strategic justification for the proposal to be absent.

73. We find that the absence of a podium element is a failing. We have no issue with a strong form to Sturt Street as advocated by Mr Biles and Mr Stent, given the significant presence of the City Link ramp opposite the site. However, we are persuaded by Mr Moore and Mr Cook's evidence that a podium would help to retain and develop a level of pedestrian amenity in terms of building scale and access to daylight. That would be lost with 11 storeys essentially built to the Sturt Street frontage as proposed. We recognise that the former office building that is now the City View apartment tower has no podium to Sturt Street but we do not consider replicating that form further along Sturt Street is desirable.

74. Wind conditions associated with the existing pedestrian arcade were referred to as an issue by local residents however, we have no evidence before us as to the impact of the proposal in that regard.

75. The impact on the development potential of the site at No. 151 Sturt Street was the subject of considerable discussion and evidence. We are persuaded that the proposal does not eliminate the potential for that adjacent site to be developed, but does limit the options available to it. This is because the proposal has directed its mass away from the southern boundary, abutting the City View apartments, toward its northern boundary, which is the common boundary with No. 151 Sturt Street. We do not consider that a reasonable balance is achieved when nearly the whole of the length of the subject site is developed to 11 storeys.

76. The evidence of the experts was consistent in so far as the vistas to the Arts Centre spire from the public realm of Sturt Street would not be substantially impeded, although Mr Moore suggested some views may be impacted from Dodds Street.

77. The view from the east side of Sturt Street is impacted by existing buildings, dependent upon where the viewpoint is taken. The view from the west side of Sturt Street would remain. Pursuant to Clause 22.13, the critical view is from Sturt Street and therefore we have less concern in relation to the impact from Dodds Street in this regard. Loss of views from private properties is a matter we discuss below.

78. We accept that this area is one where change is envisaged and we are persuaded that there are sound grounds on which a development above 4 storeys in height is acceptable, particularly to the western portion of the subject site, without undermining the design outcomes and objectives of the Scheme. A permit can be granted to vary from the maximum building height of 15 metres, where the design outcomes are met. It is proper to consider whether the proposal does meet the stated design objectives for DDO18 and the Scheme. We have summarised our findings in this regard in the table below:

s To ensure that the design of new development respects the development potential of adjacent sites.

s We are not persuaded that the 11 storey proposal achieves an acceptable balance.

s To maintain the visual dominance and vistas to the city.

s We accept the evidence presented that, from the public realm, views and vistas to the City are not significantly affected.

s To encourage high-density residential developments to complement and support the function of the city with low rise commercial and other uses to service the local area.

s We have no issue with the land use components within the proposal that support this objective and the purposes of the Mixed Use Zone.

s To encourage a high standard of urban design which offers interest, safety and convenience to people living and working in the area.

s Although we have no issue with the architectural merit of the design per se, we are not persuaded that the building mass across the site, at the scale proposed, is an acceptable urban design outcome. The lack of a podium level to Sturt Street is a related concern.

s To retain views of the Arts Centre spire from St Kilda Road both from the south and the north, along Sturt Street.

s We accept the expert evidence that this view would not be substantially impeded, although from longer distances on Sturt Street, the inclusion of a podium may facilitate view retention.

79. The C20 Panel discussed discretionary height controls and at pages 22 and 32 said:

The Panel considers that if a building height is specified, there must be a sound reason for doing so which is clearly linked to achieving the design objectives set out in the schedule. Whether the requirement is mandatory or discretionary, it should reflect the desired built form outcome in the vast majority of cases. It is only in exceptional circumstances that the building height should be exceeded, and only then if the outcome will support the design objectives (or at least not undermine them). The Panel considers that it weakens the status of a building height requirement if it is departed from too regularly. Such departures are a fair indication that the linkage between the height and the design objectives is tenuous.

Building height requirements should be regarded as the general rule only to be departed from in exceptional circumstances or where it is clear that the design objectives will be met by the proposed built form outcome.

80. The Panel also remarked on departures from the height controls in the interests of achieving other strategic objectives. The Panel refers to 'design excellence' at page 100. It states that 'good design' should "at the very least" result in a building that is "well mannered":

Well mannered in that though it may not enhance and enliven its setting in the breathtaking way that design excellence almost certainly does, it does not detract from its neighbours or diminish the aesthetic quality of the area in which it is situated...In reality, planning schemes endeavour to provide a framework in which the exemplary is possible and the well mannered the norm.

81. We are not persuaded that any circumstances exist for us to depart from our findings that the proposal does not satisfy the current provisions of DDO18 or Clause 22.13. Although we take no issue with the architecture per se, we do not find the proposal to be well-mannered in terms of its relationship to adjacent sites. We also find that it would not satisfy the provisions of Amendment C20 as recommended by the Panel or as adopted by the Council. We have said that a development over 4 storeys may be acceptable, but our key concerns are the 11 storey height coupled with the substantial mass across the site. The form of the Sturt Street frontage is also a concern, although a matter more simply rectified.

82. Submissions by and on behalf of local residents referred to concerns about a loss of amenity associated with the proposal. The concerns included a loss of views to the City and Arts Centre spire, shadowing of private open spaces within the lower-rise "garden apartments" of the City Views complex, visual bulk associated with the size of the building, overlooking and noise. These submissions were challenged through the evidence of Mr Biles and, to some extent, Mr Stent. Mr Cook also gave evidence in relation to these matters.

83. It should be said, first, that the subject site and the City View apartments are within a Mixed Use Zone, rather than a Residential 1 Zone. Therefore, there are legitimate reasons to expect a different standard of amenity when compared with a Residential 1 Zone. Of course, that does not mean that existing resident amenity should be unreasonably compromised, but potential impacts must be considered in the context of the development and land use objectives set out in the Scheme.

84. We have considered the generally accepted principles applied in matters involving views that are set out in Tashounidis v Shire of Flinders and Others 1 AATR 116 and Clausen v Shire of Mornington and Others 4 AATR 125, cited below:

(b) views form part of the existing amenity of a dwelling and their loss is a relevant consideration to take into account;

(c) the availability of views must be considered in the light of what constitutes a reasonable sharing of those views; and

(d) added emphasis will be placed on considerations (b) and (c) above if the question of views is specifically addressed under the Planning Scheme.

85. There can be no doubt that views form part of the amenity of existing residences immediately to the south of the subject site. Unlike some other municipalities (eg. Surf Coast), there is no viewing sharing policy included in the Scheme. A reasonable sharing of views has often been adopted as a reasonable test.

86. Based on the current provisions of the Planning Scheme, residents in the lower levels of the City View apartments could not expect to retain views and an unencumbered outlook to sky, as even a 4-5 storey development would impinge in this regard.

87. There is no doubt that the proposal would have a significant impact on the amenity of residents in the higher levels of the City View tower apartments, many of which face north to gain views of the City. Some oblique views to the east and west would still be available if the proposal was to proceed, although the primary views would be significantly impeded or totally blocked. However, we do not consider that a fair balance is achieved in relation to the City View development.

88. In relation to shadowing impacts to habitable rooms, only the lower levels of the City View apartments within the tower would be shaded to any significant effect (given the stepped form of the south elevation of the proposal). However, there would be a loss of daylight to existing occupants of the City View tower although we accept that ambient daylight would still remain albeit at a reduced level.

89. Residents in the City View garden apartments would be affected in so far as the private open space of Unit 70 and potentially the communal open space would be shaded. Even though a loss of sunlight to the private courtyard of Unit 70 may occur with a lower form of development on the subject site, we consider that some respect could be paid to the "gap" between the garden terraces buildings, possibly through some recession in building form.

90. Overlooking into habitable rooms of the City View apartments is a consideration but the stepping back of the development from its southern boundary provides separation distances of 12-25 metres that are within acceptable levels. Perceived or actual overlooking will be an issue even if a building of a significantly lower form is proposed, or the mass broken in two or more components, although in either event, there would be likely to be a lesser number of windows and balconies involved.

91. Noise was a further concern in relation to balconies but that is not a matter that would cause us to reject the Application. We do not find noise intrusion to be a matter that should cause the Application to be rejected. We accept that the conditions on a permit could address the potential for unreasonable noise to emanate from plant and equipment (eg. air-conditioning, vents/flues etc).

92. The Council and Objectors submitted that the proposal does not provide adequate parking on-site to service its use components given the existing pressures on parking in the area. They also expressed concern about the use of car parks at some 400 - 600 metres from the subject site for visitors and users of the retail and office facilities. Mr Lonie called evidence from Mr Symons in relation to parking and his evidence was challenged through the evidence of Mr Tucker for the Applicant.

93. The evidence of Mr Symons and Mr Tucker was not greatly divergent in terms of the car parking required for this development under the provisions of Clause 52.06 (324 spaces calculated by Mr Tucker and 355 spaces calculated by Mr Symons). The estimated peak parking demand would require 195 (Mr Tucker) or 204 spaces (Mr Symons). The variations are generally explained by a different rate applied by Mr Symons relating to restaurant/café use based on floor area rather than number of seats as had been advised to Mr Tucker. There was also some variation in relation to the size of dwellings. We record that some resident submissions adopted different figures and calculations.

94. It was common ground between Mr Symons and Mr Tucker that the number of spaces proposed, being 120, would service residents (accepting a Rescode figure as generally acceptable) and retail users. There is no proposal for dedicated on-site provision for either resident visitor car parking and a proportion of the demand required by the office component within the development. However, we note that the commercial spaces were said by Mr Tucker to potentially be available to resident visitors outside office hours. We also note Mr Tucker's comments about a quasi-parking limitation policy being in operation and that the on-street parking restriction regime is likely to evolve into more short-term parking in the future.

95. The critical issue, and difference in opinion between the experts, is how the deficiency or margin is to be made up. Mr Tucker gave weight to some sharing of spaces. He also sought to rely on on-street parking, as was said to be available, as well as off-street car parks within 450 - 600 metres of the site. Mr Symon's principal concern related to the deficiency for the office component and his view that the alternatives proposed by Mr Tucker were not convenient or appropriate.

96. We note the criticisms of both experts by local residents. Only one survey of on-street and off-street parking was undertaken by Mr Tucker, at times when it was submitted by Objectors that ACCA had not opened, the College of the Arts was in recess, the National Gallery was closed for renovations, there was no performance at the Malthouse Theatre, and other developments (such as Panama apartments) are not yet constructed. Mr Symons had only undertaken one spot survey.

97. We are not satisfied that the provision of on-site car parking is adequate to service the demands generated by the proposed development particularly in terms of office needs. The current provisions of the Planning Scheme refer to traffic constraints in the locality and at Clause 22.13 it is policy that land use should not unduly impact on traffic conditions or on-street car parking in the locality. There was generally no dispute in the expert evidence that parking demands in the area are high. There is no parking limitation policy that we could be referred to within the Scheme.

98. We are concerned about the limited nature of the survey information. Often one car parking survey may be acceptable in area of greater stability and homogeneity in terms of land uses. However, the rapidly changing nature of this locale and the demands associated with the public arts and educational facilities are important to take into account. We are concerned that several of the uses that contribute to parking demand in the area were not in operation at the time of Mr Tucker's survey (eg. ACCA and also the National Gallery which, as conceded by both Mr Tucker and Mr Symons, may have flow-on impacts to this precinct rather than direct impacts). We have no contrary evidence or submissions to dispute the claims about other facilities not being operational at the time of the GTA survey.

Searspoint Pty Ltd v Melbourne CC & Ors [2002] VCAT 1538

At a glance

Court

Decision date

Before

Source

Judgment (210 paragraphs)

Searspoint Pty Ltd v Melbourne CC & Ors [2002] VCAT 1538 (28 November 2002)

Parties

Legislation Cited (1)