For the reasons set out elsewhere, we are not persuaded that the objectives that relate to a transition in height in this interface location are achieved.
This is not a location where a pedestrian link is sought by the Structure Plan.
We are satisfied that the extent of shadowing added to Gardiner Reserve in Haines Street is fleeting at the winter solstice, and will ensure a good level of solar access is maintained.
[2]
Ultimately, we cannot find that all of the criteria for exceeding the preferred height limit are achieved, primarily as a number of the objectives are not met, where they specifically seek that the height and setback of new development respond to the context with low scale residential neighbourhoods. Where we interpret the proposed planning scheme controls as seeking a moderation in height, this proposed building actually proposes to rise with the topography to a taller form than is otherwise under construction or approved in this immediate neighbourhood consisting of land within the urban renewal area. In our view that taller built form will not result in a desirable transition to the lower scale residential neighbourhood, despite the range of setbacks proposed, and the well resolved squashed elliptical tower form. If we had to be solely guided by the proposed controls preferred by the Panel to Amendment C190, we would find there to be inadequate justification to warrant a height above the preferred height limit, that is 9 storeys.
To the extent that little weight can be given to the Council's adopted version of Amendment C190, we note that it seeks for substantial setbacks above the street wall, such that a 6 to 7 storey building could be achieved on the review site. As we are placing little weight on this proposed control, we will only regard it as further support for our conclusions of the effect of the Panel adopted controls on the proposed development for the review site.
For the reasons set out above, we find that both the existing form of the Melbourne Planning Scheme, and the potential future form after Amendment C190, both do not support the extent of height proposed for the review site. On a net community benefit analysis, while we appreciate that there are many important benefits associated with the proposed development, our finding is that the failure to provide a transition in heights is a significant disbenefit in contrast to the guidance provided by the Melbourne Planning Scheme. In our view this proposal would not achieve a net community benefit in its present form.
It is our finding that the proposed height of a future development on the review site should demonstrate a readable stepping down from the height being achieved by the development under construction at 112 Haines Street, being that land to the immediate south-west of the review site. We anticipate that the preferred height set out in both the Panel adopted and the Council adopted versions of Amendment C190 of nine storeys is likely to represent an appropriate outcome, but ultimately this needs to be tested by a design response. Based on the current design response, and the concerns we have outlined above, we see no justification at present to exceed that preferred height limit.
For the reasons set out above, we find that the proposal as before us presents an unreasonable built form, and it is not worthy of the grant of a permit.
[3]
The Applicant seeks a partial reimbursement of its fees, to a total of $4279.60. Section 115CA(1) of the Victorian Civil & Administrative Act 1988 (the 'Act') sets out that there is a starting presumption that an order for reimbursement of fees will be granted in Applications under Section 79 of the Planning and Environment Act1987. That is in relation to proceedings where the Responsible Authority has failed to grant a permit within the prescribed time, being 60 days. Section 115CA(3) of the Act sets out the following guidance for our decision making task.
[4]
(3) Subsection (1) does not apply if the responsible authority satisfies the Tribunal that there was reasonable justification for the responsible authority to fail to grant the permit before the application to the Tribunal, having regard to -
[5]
(a) the nature and complexity of the permit application; and
[6]
(b) the conduct of the applicant in relation to the permit application; and
[7]
(c) any other matter beyond the reasonable control of the responsible authority.
[8]
As there is a presumption that fees will be reimbursed, the onus is on the Council to substantiate why a permit was not granted within the prescribed time. In its submissions dated 31 July 2017 the Council puts forward two reasons as justification for the delay in processing the application. One reason is the complexity of the permit application, a matter which we do not need to make any decisions about for reasons that will soon be explained. The other reason relates to the conduct of the Applicant. The Council submits that, in late November 2016, the Applicant contacted Council to arrange a meeting to discuss an alternative development scheme for the site, which we are told comprised amendments to the existing permit and approved development. The Council advises that a meeting was scheduled for 6 December 2016, at which some plans of a revised scheme were presented and discussed. On 7 December, an email with a copy of the plans of the alternative development scheme was sent to Council. On 12 December, a return email from Council provided feedback to the Applicant on the alternative development scheme.
Meanwhile, the application for review appears to have ticked over the 60 day mark on the same day as the meeting at Council, being 6 December 2016. On 9 December the Applicant lodged the present application for review with the Tribunal. On 13 December 2016 the Council received notification of the lodgement of the application for review.
The Council submits that the conduct by the Applicant caused it to presume that the Applicant may not wish to proceed with the current planning permit application, but rather with a revised proposal which would have involved an amendment to the existing permit. In light of this conduct, the Council officers delayed processing of the planning permit application that was before it.
The Applicant submits that the alternative development scheme discussed between the Applicant and Council was entirely distinct from the current permit application that was then before Council, and that no representation was made by the Applicant that the permit application would be withdrawn.
We are not persuaded by the submissions of the Applicant, and instead find that the conduct of the Applicant caused a reasonable delay in the processing of the planning permit application by Council. We make this finding for the following reasons. The application for review was lodged after 63 days, that is when the prescribed time had been exceeded by only three days. Therefore, only a short delay need to have been occurred by the actions of the Applicant, for that delay to be consequential in determining whether it contributed to the failure of the Council to determine the permit application in the prescribed time.
We are told that the Applicant contacted the Council to discuss arranging a meeting for an alternative proposal for the review site sometime in November 2016. We have not been given the date for that contact, but note that it would have to have been at least 6 days prior to the meeting, if that contact occurred on the last day in November. We consider it to be a fair and reasonable response from Council to cease processing the current planning permit application, upon receipt of a request from the Applicant to meet to discuss an alternative proposal for the review site. A Council planning department is under significant and multiple demands for the time of its planning officers and support staff. Where an Applicant has instigated contact with Council and a request to meet to discuss an alternative proposal for a site, it is reasonable for a Council to presume that there is at least a prospect that a current planning permit application may therefore be either withdrawn or amended. It is also reasonable for a Council to respond to that situation by focussing on the resolution of other planning permit applications that are before it, until the Applicant's intentions become clear. Where those intentions are not made clear by the Applicant in this case until it lodges the present application for review on 9 December, the resultant delay of at least 10 days caused by the conduct of the Applicant, is significant in the context of an application for review lodged after 63 days.
Section 115CA(3)(b) of the Act specifically identifies that the conduct of the permit applicant may provide reasonable justification for the failure of the Council to determine an application in the prescribed time. That conduct could not include a delay in providing further information sought under Section 54 of the Planning and Environment Act as any such delay would not add to the days counted in the prescribed time. It also could not include a delay in the carrying out of notice required by the Council under Section 52 of the Planning and Environment Act, as that also would not add to the days counted in the prescribed time. It therefore must refer to some other conduct, some 'interference' caused by the Applicant, which causes the Council to delay its processing. In our view, a scenario where an Applicant instigates discussions over an alternative design proposal for the review site, to be one scenario that could reasonably cause a Council to delay processing of a current planning permit application. In this proceeding the extent of delay caused is significant in the calculation of the prescribed time.
For these reasons we find that there is reasonable justification for the responsible authority to fail to grant a permit within the prescribed time, and that the Council is not liable to reimburse the Applicant's fees in this proceeding.
[9]
For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.
[2] The submissions and evidence of the parties, any supporting exhibits given at 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.
[12]
[3] Page 15, Plan Melbourne 2017-2050: Metropolitan Planning Strategy (Department of Environment, Land Water and Planning, 2017).
[13]
[7] the proposed building on the review site is taller, having regard both to the parapet height to the top habitable floor (46.05AHD compared to 44.79ADH), and the overall height of the two buildings (49.75 AHD compared to 46.69AHD).
Parties
Applicant/Plaintiff:
Shiel FCP Pty Ltd
Respondent/Defendant:
Melbourne [2017] VCAT 1060
Legislation Cited (2)
Environment Act 1987
Civil and Administrative Tribunal Act 1998
Cases Cited (3)
Shiel FCP Pty Ltd v Melbourne [2017] VCAT 1060 (24 August 2017)
The limited current guidance, as described by some, is sought to be addressed. The Council has adopted the Arden-Macaulay Structure Plan, and is pursuing Amendment C190 to the Melbourne Planning Scheme to introduce the structure plan and a suite of planning scheme controls to guide the future built form in this urban renewal precinct. This process is significantly advanced. The amendment has been exhibited, a Panel hearing and a Panel report occurred in 2015, and the Council has since adopted a version of the amendment and lodged it with the Minister for Planning for approval.
Unfortunately, that is where the process and therefore the weight to be given to the amendment becomes a little murky. To shorthand a complicated set of events, when the Council adopted its preferred form of the amendment to be submitted to the Minister, it made some substantial changes to the form of the controls that are to apply to the review site, compared to those supported by the Panel. The Tribunal was then called upon to decide as to whether there had been procedural defects in the Council process, and ultimately determined in the decision of Shiel FCP Pty Ltd v Melbourne CC[2017] VCAT 744 that there were defects which needed to be rectified by a subsequent further exhibition and panel process. That further exhibition and panel process has by our understanding not yet commenced.
Due to this process there was some disagreement about the extent of weight that should be given to the forms of the amendment as supported by the Panel, and adopted by the Council. Ultimately, we agree with the submissions of the Applicant that we should give the version of the proposed built form controls adopted by the Panel significant weight. That is due to the extensive process that these proposed controls have travelled, and the support provided by an independent Panel of experts, after community participation and input. However, we also agree with the Council that we should give some limited weight to the form of controls adopted by Council, as ultimately they may well be the form of controls that are put to the Minister for Planning for approval.
The controls recommended by the Panel and supported by the Council differ in terms of the manner in which built form above the street wall should be set back. Critically, they do not differ in terms of the possible maximum height allowable on the review site, and in relation to the objectives. Under the proposed Schedule to the Design and Development Overlay, the review site is provided with a preferred height limit of 9 storeys, and an absolute height limit of 12 storeys. Discretion in height applies up to the absolute height limit, which then operates as a mandatory requirement. The following guidance is provided when assessing a proposal that seeks to exceed the preferred height limit of nine storeys:
Having regard to these design objectives, we are not persuaded that the transition in scale sought by the proposed controls contained in Amendment C190 can purely be achieved through the provision of setbacks of those levels above the street wall, or by the provision of increased setbacks to the very upper levels of a development. Mr Tweedie submits that the Panel report makes it clear that it is Panel's intention that the transition in built form sought in this location be provided by the setbacks to the levels above the street wall. We are not persuaded that the design objectives sought to be applied by the Panel carry this intent. Further we do not consider that the provision of setbacks alone will achieve an appropriate transition in scale as sought by both the existing and proposed planning scheme controls, in this context. We explain our reasons to support this proposition below.
The proposed Schedule of the Design and Development Overlay seeks the establishment of a three-storey street wall. We are satisfied that this proposal achieves such a street wall height, and where a more prominent fourth storey exists than one might ordinarily find under these provisions, we consider that to be an appropriate response to the higher street wall that exists on the adjacent property to the east of the review site.
Above the street wall, the proposed controls put forward by both the Panel and the Council seek a 10 metre setback. The proposed development that is before us provides a minimum setback of 6.0 metres to levels 4 to 8, a setback of 8.5 metres to level 9, and a setback of 11 metres to level 10. These levels adopt a squashed elliptical form, which could also be described as an isosceles triangle with rounded edges. As such, the minimum setbacks noted above only apply to one location central to each of these levels, with additional setbacks provided to each side as they curve away from the street edge.
While the range of setbacks proposed comprise a significant departure from the setbacks recommended in Amendment C190, they nonetheless provide for an appropriate range of setbacks to a tower form in this transitional location. We make this finding for the following reasons. The curved nature of the tower form acts to reduce the breadth of built form that will be visible from most locations in the surrounding neighbourhood, particularly that part of the neighbourhood comprising the low scale forms to the north and east. As a result, while the built form protrudes in part closer to the street edge, the range of setbacks provided to the built form as a whole acts to achieve the type of outcomes sought under the proposed controls that form part of Amendment C190.
However, the same cannot be said in regards to the proposed height of the building. As previously identified, the proposed controls apply a preferred height limit of 9 storeys, with the potential to extend up to 12 stories subject to satisfying certain criteria. In applying the criteria, we adopt the position put forward by Mr Tweedie, that the criteria only applies to that part of the built form that sits above 9 storeys. We respond to the criteria with the following assessment:
We accept that the proposal by the Applicant to make a contribution to affordable housing in the manner proposed will be a benefit to the broader community. We adopt the Tribunal decision on the matter of Haines Street Holdings Pty Ltd v Melbourne CC (Correction) [2015] VCAT 1428, that all that is required is the provision of a benefit that can be demonstrated, it is not for the Tribunal to consider whether that benefit is sufficient: