St Kilda Holdings Pty Ltd v Port Phillip CC [2013] VCAT 120

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

TP00A, TP02A, TP03A, TP04A, TP05A, TP06A, TP07A, YP08A, TP09A, TP10A, TP11A, TP12A, TP13A, TP14A, TP15A, TP16A, TP17A, TP18A, TP19A, TP20A

1. The decision of the responsible authority in relation to permit application no. P537/2012 is affirmed. No permit is granted.

Mr Paul Chiappi, Barrister instructed by Minter Ellison

• Mr Peter Lovell, heritage consultant, Lovell Chen
• Mr Mark Sheppard, architect and urban designer, David Lock Associates
• Mr Jamie Govenlock, town planning consultant, Urbis Pty Ltd
• Mr John Kiriakidis, transport engineer, GTA Consultants
• Mr Hayden Burge, landscape architect, ERM Australia
• Barry Roben, civil engineer, Irwinconsult Pty Ltd

Evidence from Mr Jeff Latter, arboricultural consultant, Treed Environs was accepted on the papers.

Mr Gary Wissenden, town planning consultant, Hansen Partnership, represented Ms Carolyn Simm and Mr John Baldock on 21 January 2013. Mr Baldock appeared in person on 22 and 23 January 2013.

To demolish all existing buildings and to construct a six storey building over a basement. The building would accommodate 87 dwellings, comprising studios, one bedroom and two bedroom dwellings.

The building would include a basement that would accommodate 86 car parking spaces for residents, one visitor car parking space and nine bicycle parking spaces. Vehicle access would be from Carlisle Street.

Levels ground to two inclusive would be set back 8 metres from Carlisle Street. Levels 3-5 inclusive would be set back 17.1 metres from Carlisle Street. All six levels would be built to the St Kilda Road boundary. The building would have a height of 24 metres with a lift overrun of a further 2 metres.

Materials would include face brickwork, natural concrete and metal. The south façade would include white framed balconies. Vertical screening of concrete blades and powdercoated metal blades would be provided on most façades.

Application under section 79 of the Planning and Environment Act 1987

Clause 32.01-4 (two or more dwellings on a lot in R1Z)

Clause 43.01-1 (demolish building and buildings and works under HO288)

Clauses 10.04, 11.01, 15.01, 15.02, 15.03, 16.01, 18.01, 18.02, 21.03, 21.04, 21.05, 21.06, 22.04, 22.06, 52.06, 52.29, 52.34, 52.35 and 65

The review site is located on the north side of Carlisle Street, approximately 40 metres to the west of the intersection of Carlisle Street and St Kilda Road. The site has an "L" shape, with a frontage of 26.04 metres to Carlisle Street and a frontage of approximately 22 metres to St Kilda Road. It has a maximum depth of 90 metres and an area of 2262 square metres.

The site is occupied by a two storey flat roofed funeral parlour and associated single storey outbuildings behind. The land is flat and is not constrained by any special features or encumbrances.

The land is within a predominantly residential precinct. The site is well located to Carlisle Street major activity centre, trams and buses and a wide range of recreation and community facilities.

We inspected the site and its environs on 22 January and 6 February 2013. The parties accompanied the first inspection.

Harding v Port Philip CC [2002] VCAT 416

Doncaster Road Property Partnership v Manningham CC [2004] VCAT 2445

Seban Holdings Pty Ltd v Yarra CC [2004] VCAT 1499

The University of Melbourne v Minister for Planning [2011] VCAT 469

Orrong Road Investment Trust v Stonnington CC [2012] VCAT 737

1. An application for a town planning permit to demolish an existing building and to construct a six storey apartment building was lodged with Port Phillip City Council in June 2012. Council failed to make a decision on the application within the statutory period, and the permit applicant has requested the Tribunal to decide the application.
2. In January 2013, Council determined that had it been able it would have refused the application for the following reasons:

Demolition of the existing building would adversely affect the significance of the broader heritage place.

The building's height is excessive and fails to respond to the streetscape characteristics of Carlisle Street.

The building's height would detrimentally impact on the amenity of the public realm of St Kilda Road, particularly the abutting footpath and public park.

The building's height fails to respond to the streetscape character of St Kilda Road.

The proposed development would detrimentally impact on neighbouring properties by overlooking, overshadowing of private open space.

1. Five objectors to the proposal support Council's decision. They consider that the development would comprise excessive height, scale and massing, and the architectural treatment fails to reflect the fine grain streetscape of the area.
2. VicRoads and Public Transport Victoria have no objection to the application subject to the inclusion of conditions that relate to vehicle access to Carlisle Street.
3. The permit applicant considers that the development complies with planning policy, the proposed height, scale and massing would fit into the character of the area and the demolition of the existing buildings would comply with heritage policy.
4. The key issues that we must determine in this matter are:
   • Would the demolition of the existing buildings comply with heritage policies?
   • Would the development appropriately balance housing diversity and respect for neighbourhood character?
   • Would the development impose unacceptable amenity impacts on neighbours?
   • Would the development provide acceptable amenity for its future residents?
5. We must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Port Phillip Planning Scheme, we have decided to affirm the decision of the responsible authority and direct that no permit be granted. Our reasons follow.

What are the prevailing conditions of the site and its context?

1. The review site is occupied by a brick building constructed in 1953 and used as a funeral parlour. The main building is located centrally in the site, setback approximately 24 metres from Carlisle Street. A prominent portico supported by twelve slender columns faces Carlisle Street. The entry is framed by a row of Cypress trees on both the east and west boundaries. A large single storey building and a smaller second outbuilding are located to the funeral parlour's rear. Car parking is provided around the building.
2. The site also has a short boundary to St Kilda Road that does not provide access to the site.
3. No.53 Vale Street abuts the site's northern boundary. The southern part of that property is used for a dwelling and the northern part is used for an office and associated car parking. A two storey building faces west and south. No windows abut the common boundary. The dwelling's secluded private open space at both ground and first floor levels close to the common boundary make this a sensitive interface.
4. An apartment building has been developed at No.49-51 Vale Street to the site's northwest. The building has a height to the boundary of three storeys over an elevated basement. A recessed fourth storey is visible from the review site. Part of the apartment building is located on the boundary, and private open space and habitable rooms are located within 3 metres of the common boundary.
5. Also to the west is a Jehovah's Witness temple. It is a single storey building with a large pitched roof. It is set back 24 metres from Carlisle Street.
6. A two storey building used for a shop with a dwelling above abuts to the southeast. The rear of that land is used for car parking and storage. Also to the east is a small public park that fronts St Kilda Road. Screened and shaded on three sides by high solid walls, it is a public space with little amenity.
7. Except for the adjoining four storey apartment building, the built form along Carlisle Street comprises a mix of single storey dwellings interspersed with two and some three storey apartment buildings. Whilst there is a diverse range of architectural styles, the streetscape has largely consistent heights of two and three storeys, limited set backs to Carlisle Street of 3 to 4 metres, generally low and transparent front fences and consistent materials (brick and render) and colours (largely browns and greys). Most roofs are pitched, except for the 1960 walk-up flats.
8. The built form along St Kilda Road (between Carlisle Street and Inkerman Street to the north) comprises single and two storey commercial buildings. Taller buildings are visible at Alma Road and behind the buildings fronting the eastern side of St Kilda Road.
9. The site is well located to activity centres and public transport. Tram services operate along Carlisle Street and St Kilda Road. The Carlisle Street major activity centre is located on the east side of St Kilda Road, and the Acland Street major activity centre and St Kilda beach are approximately 600 metres to the site's west. The St Kilda Town Hall and library/community centre are located on the southeast corner of Carlisle Street and St Kilda Road.

Would the demolition of the existing buildings comply with heritage policies?

1. It is proposed to demolish all of the existing buildings. Heritage Overlay 288 applies to the review site (except for its St Kilda Road frontage). Planning permission is required to demolish a building affected by a Heritage Overlay. The heritage overlay does not apply to the adjoining or nearby properties.
2. The property is identified as a significant place in the Port Phillip Heritage Policy Map (August 2011, Figure 4) that forms part of the Port Phillip Heritage Review. The Review is an Incorporated Document in the Scheme.
3. A significant place is defined in the Planning Scheme as follows

Significant heritage places include buildings and surrounds that are individually important places either State, regional or local heritage significance and are places that together within an identified area, are part of the significance of a Heritage Overlay[2].

a remarkable work of classically inspired formality in a modern 1950's idiom. The landscaping and signage are fundamental to the integrity of the complex and to its significance[3].

1. The heritage citation notes that the symmetry of the portico and the central entry, bordered by the cypress trees, create a "theatrical orchestration" that was rare at that time.
2. Mr Lovell, Mr Raworth and Council's heritage adviser agree that the portico and the entry area comprising the central driveway bordered by mature cypress trees are the significant heritage elements. The remainder of the building is "utilitarian" with little heritage value.
3. Our consideration of whether we can support the demolition of this heritage place is guided by clauses 15.03, and 43.01. We consider the State planning policy framework encourages:
   • conserving and enhancing heritage places of natural or cultural significance
   • conserving and enhancing elements that contribute to the significance of heritage places
   • ensuring that development does not adversely affect the significance of heritage places[4], and
   • development is to be respectful and to maintain the setting and context for the heritage place.
4. Council's policy framework at Clauses 21.05, 22.04 notes that heritage is an important element of Port Phillip[5]. The heritage fabric is to be conserved and enhanced, and development within such areas is to be constrained[6]. Strategies to achieve this include:
   • protect, conserve and enhance all identified significant and contributory heritage places.
   • support the restoration and renovation of heritage buildings and discourage their demolition[7].
   • encourage high quality design that positively contributes to identified heritage values.
5. Clause 22.04 provides further guidance as follows:
   • retain and conserve all significant and contributory heritage places.
   • discourage the demolition of significant and contributory heritage places.
   • ensure all new development and redevelopment of significant and contributory places is respectfully and harmoniously integrated with the surrounding character.
6. The Scheme further provides:

• Refuse the demolition of a significant building unless and only to the extent that:
  • The building is structurally unsound;
  • The replacement building and/or works displays design excellence which clearly and positively supports the ongoing heritage significance of the area[8].

1. The responsible authority submitted that demolition should be strongly resisted. It should be contemplated only when necessary for structural reasons. We agree with Mr Rantino's submissions that once the heritage fabric has been demolished, no heritage place would remain and hence the development would not be required to display design excellence that supports the area's ongoing heritage significance.
2. The parties agreed most of the funeral parlour is structurally sound, except for the prominent portico that faces Carlisle Street. It comprises twelve slender (225mm) columns that support the large canopy. Slender steel posts (75mm) have been added to each of the twelve concrete posts.
3. Mr Roben assessed the structural integrity of the portico. He advised that the original columns are no longer plumb and are out of alignment by 25mm. The steel poles added to each column are connected to the paving but not to a foundation.
4. He advised that the poles are at the theoretical edge of their capacity to support the canopy. The poor alignment doubles the load being carried by the poles. In his view the steel poles are ineffectual and do not provide the necessary additional support. He advised the canopy is close to failure, is "absolutely unsound" and has an unacceptable and minimal low level of safety. If a pole fails, he opined that the canopy is likely to fall towards Carlisle Street.
5. A further matter is relevant. Council recently extended Planning Permit 87/2010. This permit allows the twelve columns to be replaced with four columns located along the southern (outer) edge of the canopy. It also allows the portico to be made more slender.
6. Mr Lovell and Council's heritage adviser support its demolition[9]. Mr Lovell advised that the loss of any heritage place would be "regrettable". However he considered that on balance the demolition of this building could be supported as:
   • the portico is structurally unsound, faces imminent collapse, and there are no proposals to rectify it to its original form.
   • Planning Permit 87/2010 allows the portico to be modified in a manner that would be highly inconsistent with its original form so that its heritage integrity would be lost.
   • without the portico, the remainder of the building has no heritage significance.
   • there is no wider heritage place that would be adversely affected by the demolition of the building.
7. He gave weight to the proposition that this building is one of approximately 21, twentieth century buildings of significance in the municipality. He opined there are better examples of twentieth century architecture, and the 'heritage pool" will expand as more heritage reviews are completed. Hence, the loss of this building would have limited adverse impact on twentieth century heritage in Port Phillip.
8. The existing building is classified in the Planning Scheme as a significant heritage place. This is the highest level of importance, higher than a contributory building. It is a stand alone heritage place. If the building is demolished, the heritage place ceases to exist. There is no wider heritage place that continues despite the loss of one of its parts. To lose a significant heritage building that is the whole of the heritage place is a very high benchmark and our decision cannot be taken lightly.
9. We do not support the demolition of the heritage building for the following reasons.
10. Firstly, while the portico may be at its theoretical structural limits and at imminent failure, it has stood for 60 years and it remains standing. We do not know if, or when it may fail. It may stand for many years, particularly if remedial works are completed. At present, the building is being used, people walk under the portico, and cars park in the front part of the site where the portico would fall to. We think that if the risk of failure is so imminent, it would be prudent for the use of the building to cease and to prevent public access to the area into which the portico might collapse. We would expect that urgent preventative works would be evident to ensure public safety. However, we saw none and no safety works were pointed out to us as evidence of imminent failure.
11. Secondly, we were not provided with information as to whether the portico can be made sound in its present configuration, or that the costs of repairs are so great to be unreasonable. Given that a permit has been granted to fix the portico with fewer columns, we think it likely that the existing portico can be made structurally safe and its heritage form retained. Indeed we consider that the owner of the property has an obligation to maintain a significant heritage place in good repair.
12. Thirdly, the parties and experts agreed that the remainder of the building is structurally sound. Whilst it may be utilitarian and bland, it is in planning terms, a significant heritage building. There are no compelling heritage reasons why the remainder of the building should be removed.
13. Finally, the other important component of the significance of the heritage place are the cypress trees. These are in good health and have no immediate prospect of failing or needing to be removed[10].
14. The permit applicant opined that approval to replace the twelve columns with only four means the fate of the heritage place is inevitable. We do not agree. At this time, the heritage place is entirely intact, largely in good repair and we have no reason to conclude that the portico cannot be repaired in its present form. If the permit is acted upon and the portico then has no heritage value, the permit applicant can request the planning authority to remove or amend the heritage overlay. The altered building can inform that review. At this time, we are considering the removal of a significant heritage place that is intact. We think the case to remove the heritage place on the grounds of structural unsoundness has not been proven.
15. The permit applicant submitted clause 10.04 requires that where policies may be inconsistent, they need to be balanced so the outcome provides community benefit and sustainable development. The permit applicant submitted that the development of 87 dwellings in a well designed building on a site well located to public transport and major activity centres provides sufficient positive outcomes to offset the loss of significant heritage fabric.
16. We are not persuaded that the development of an apartment building outweighs the loss of a significant heritage place. In our view the urban consolidation outcomes of more households living in a well serviced location do not outweigh the loss of this significant fabric. There are many opportunities in this area and Port Phillip municipality generally to achieve urban consolidation objectives. This is not the only site available for a more intensive development. We note that this site has not been identified in any structure plan or urban design framework as being strategically important, or a key site that if not developed would thwart wider planning objectives. We think that the community outcomes need to be very high and significant to offset the loss of significant heritage fabric. This was the balance in the Ampol House[11] case in which the loss of heritage fabric was found to be appropriate as it facilitated the development of a world class medical research institute that needed to locate in that place to maximise its effectiveness. The benefits were sufficiently great to outweigh the loss of heritage fabric, that in itself was not of very high significance.
17. The Tribunal has considered in other cases balancing the loss of heritage fabric with urban consolidation objectives gained through approval of an apartment building. In Virgon Constructions Pty Ltd v Boroondara CC[12] the Tribunal refused demolition of a contributory building in a large heritage place. The Tribunal found that

There is strong policy support for the retention of buildings which contribute to a heritage place. Equally there is strong policy support for increased housing diversity in activity centres. In assessing the application, we must decide whether the proposal will produce "acceptable" not optimum outcomes in terms of the decision guidelines of clause 65. The proposed provision of medium density housing supports Melbourne 2030 (and other objectives). However, we consider there are many opportunities within the activity centre for this to occur, so these factors do not change our decision that the balance required of us favours the retention of the heritage building.

1. We consider the facts of this case lead us to the same conclusion. We do not support the demolition of this building. To do so we need evidence that not only is the portico about to fail but it cannot be used, or repaired for a reasonable cost. We do not consider its replacement by another apartment building, no matter how competently designed, to be sufficient to outweigh the loss of a standalone significant building that once removed, would leave no trace.
2. We consider that its demolition would be contrary to the resolute and clear policies that urge a highly cautious approach to the redevelopment of significant heritage places.

Would the development appropriately balance housing diversity and respect for neighbourhood character objectives?

1. Notwithstanding our findings with regard to the matter of demolition, we turn to the building's fit into its context and its interfaces with its neighbours. We consider it appropriate to comment on this aspect as all parties made submissions and our findings should inform any subsequent redevelopment proposals.
2. The proposed building would be six storeys comprising a three storey podium set back 8 metres from Carlisle Street, with levels 4-6 set back 17 metres from the street. The frontage to St Kilda Road would comprise a sheer 6 storey wall built to the property line. The development would have a set back of 6 to 8 metres from its side boundaries and 3 to 6 metres from the north boundary.
3. The responsible authority submitted the building's height, massing and bulk would not be a comfortable fit into its context. Council proposed the development should be reduced to five levels, its setback to St Kilda Road increased and the proposed sheer wall replaced with a podium/tower form. Council also submitted that the scale and massing of built form to the north and northwest interfaces should be significantly reduced.
4. The State planning policy framework generally encourages approximately half of the forecast new households to be accommodated within established urban areas. State planning policy acknowledges that areas have different capacities to accommodate change. The preferred locations for intensive development are within and close to principal and major activity centres and train stations. Unless strategic policies identify an area for change or a preferred neighbourhood character, development is required to be responsive to the prevailing character of the neighbourhood.
5. The Port Phillip local planning policy framework complements the above strategic approach. The local planning policy framework acknowledges that the municipality has to play its role in the metropolitan task of accommodating additional households. Clause 21.04 forecasts that an additional 28,131 people living in 16,300 new households could be accommodated by 2026. Clause 21.04 identifies five levels of change within the municipality. In general Fishermans Bend Urban Renewal area, strategic redevelopment sites and former industrial precincts provide the key opportunities to accommodate additional dwellings. Other preferred locations are Glenhuntly Road, Ormond Road and the Business 2 zone along St Kilda Road. These areas are designated as substantial residential growth and moderate residential growth areas, and development is expected to comprise larger buildings. These development opportunities are to be complemented by shop top housing and development within activity centres, the scale and form of which is to be consistent with the scale and heritage qualities of these centres[13].
6. Areas outside the intensive change areas and activity centres are designated "established residential areas". This includes the areas around activity centres. Development in these areas should generally be sympathetic to the valued heritage or neighbourhood character. Policy identifies three levels of change, these being incremental residential growth, limited residential growth and minimal residential growth (areas affected by heritage overlay).
7. An incremental residential growth area is defined as follows

Established residential areas where there is justification for some further medium density infill housing, based on proximity to the PPTN and/or proximity to a MAC, and where there is an existing diverse neighbourhood character capable of accommodating change[14].

1. We note that Amendment C62 that introduced the five categories of change included both words and maps. The Minister for Planning approved the amendment without maps. This necessarily leaves the appropriate designation of the strategic directions for the area open to some interpretation. The Tribunal has adopted the approach that

as a consequence of the removal of the Framework Plan, a site's inclusion in one or other growth area is a matter about which a judgement needs to be made, based on the criteria included in the planning scheme[15].

1. The parties generally agreed that the review site fits within an incremental residential growth area. The land abuts a main road, it is within an area with a diverse neighbourhood character, and it is within 400 metres of a major activity centre.
2. Local policy also includes the following guidance:

Ensure that the form and density of new residential development within established residential areas is determined by neighbourhood character considerations rather than urban consolidation objectives[16].

1. Hence, the capacity of an incremental residential growth area is to be tempered by the prevailing character of an area, and the extent of change is encouraged to be less intensive than substantial and moderate growth areas.
2. Mr Sheppard and Mr Govenlock opined that this site is well located and a relatively robust and intensive height, scale and massing is appropriate in this context. In addition to its proximity to a main road, major activity centre and tram routes, the site is a strategic redevelopment site as defined in Clause 16.01-3. They opined that other benefits of redeveloping this site as proposed include removing a non-residential use from a residential area, making good use of an underused site, providing housing choices, retaining the cypress trees and providing further landscaping.
3. Applying the above policy directions and considering the site's context, we consider that whilst the site is within an area designated for incremental residential growth, weight is to be given to the prevailing context. The site is not within a major activity centre or any of the other areas identified designated for intensive growth such as the east side of St Kilda Road. Hence, whilst some change is encouraged, a proposal should be responsive and respectful of the prevailing character of the area.
4. We think that while the site is proximate to Carlisle Street major activity centre and tram routes, St Kilda Road presents a considerable visual and physical barrier between the site and the activity centre. The site does not appear to be part of, or have distinct connectedness to that centre. On the contrary, we consider the site is part of a discrete neighbourhood that has a built form and appearance considerably less intensive than the Carlisle Street major activity centre.
5. We acknowledge that the character of the locality around the site is more diverse than many local residential streets in Port Phillip. However, we find that the built form around the review site has unity and consistency. This predominantly derives from a consistent two and three storey height, consistent setbacks to the front and side boundaries and fencing. Except for the social housing development, there is no building in this neighbourhood greater than three storeys. Rather than setting a precedent to go higher, we think the social housing development is an anomaly in the prevailing character of the neighbourhood.
6. We find that the development's upper levels built form would present a considerable deviation from its neighbourhood context. Within Carlisle Street the built form would be distinguished by two specific architectural components - the lower three storeys and the upper storeys above. The mass of the lower three storeys adjoining Carlisle Street would be complimentary to the height and mass of the immediately adjoining property to the west and to the typical height of buildings found within this side of Carlisle Street. We think that this component of the development thus fits into its neighbourhood context.
7. However, the upper storey component of the Carlisle Street façade presents a visibly imposing element even though it would be recessed behind the lower element. It is this upper element, by virtue of its form, façade treatment and scale which would be an overbearing design response which 'does not fit' into its neighbourhood context. To the east, west and south, the building's architectural form, façade treatment and scale would visually present as a solid mass with very little façade articulation or modulation that would be desirable to soften the confronting mass of the upper storeys of the building. The height of the building, in excess of the neighbourhood character scale, further compounds this undesirable effect.
8. Council's urban design expert acknowledged that the height difference with the adjoining developments would be three storeys and recommended that the height difference be two storeys with the removal of one storey from the development. We concur with that assessment.
9. Reducing the building by one storey would be a significant improvement. However, even if we could support the demolition of the heritage building, we are not persuaded that the reduction of one storey alone would remedy the concerns we have in relation to the building 'fitting into the neighbourhood'. We are concerned with its interfaces with its immediate neighbours and turn to these matters below.

Would the interface to St Kilda Road be acceptable?

1. The responsible authority was also concerned with the fit of the building into the St Kilda Road streetscape. It submitted that a six storey wall fronting St Kilda Road would be excessively tall. It submitted that the frontage should be set back approximately 4 metres and comprise a three storey streetwall with the upper levels recessed behind. It also submitted that the development would have inadequate surveillance of the streetscape and adjacent park.
2. We agree that the St Kilda Road frontage of the review site is a 'more robust setting' than Carlisle Street due to its width, lower amenity due to traffic and its wide boulevard appearance. Presently in this part of St Kilda Road, buildings on the west side of St Kilda Road and adjacent to the review site are set on the boundary. They have a domestic scale of one to two storeys and typically present a 'back of house' form.
3. The height and form of the eastern side of St Kilda Road, opposite the review site, comprises a two to three storey scale with buildings at a zero setback from the road boundary. Buildings behind the St Kilda Road frontage are up to three storeys or more higher. We note that the properties immediately adjoining St Kilda Road on the eastern side are generally limited to a preferred height of 10 metres (or three storeys), should preferably not exceed four storeys and any additional storeys above the street wall must be setback to be visually recessive. At the northwest corner of the St Kilda Road and Carlisle Street intersection the preferred character changes to DDO21-1(Carlisle Street West Precinct) whereby the street wall parapet height must be no greater than 6 metres (to match the existing facades along the northern side of Carlisle Street). Buildings should not exceed a preferred maximum height of 10 metres (three storeys) and any additional storey above the street wall must be setback 10 metres so as to be viewed as a separate form.
4. Whilst the review site is not subject to the height and setback controls of DDO21, and as noted previously we think that St Kilda Road forms a barrier between the review site and the Carlisle Street major activity centre, the existing built form and the preferred built form outcomes of the DDO provide a two and three storey context for the St Kilda Road side of the review site. We think a six storey sheer wall built to the boundary would be highly a blunt and incongruous new element.
5. Council proposes that a three storey podium with the uppermost levels setback further behind would better respond to the St Kilda Road streetscape interface. We agree that this approach would better fit with the existing characteristics of the western side of St Kilda Road interface and also with the preferred design outcomes on the east side of St Kilda Road. We are however, less concerned with the need for a landscape set back, noting that there is a varied treatment along St Kilda Road.
6. We think that this imposing and large building would be inconsistent with the planning policy framework and a more tempered development is more appropriate in this context.

Would the development impose unacceptable amenity impacts on neighbours?

1. We turn to the submissions regarding the interfaces between the proposed building and its neighbours.
2. Council's urban designer considered that whilst the materials and colours would be acceptable, the height and massing of the northwest corner of the building would be excessive. He proposed its height be reduced and its setbacks be increased.
3. Mr Sheppard and Mr Govenlock opined that the proposed development provides generous setbacks to its front and side boundaries and it would be a polite and respectful neighbour. Mr Burge opined that the proposed landscaping would provide medium and canopy height vegetation that would provide an effective screen between the existing and new buildings.
4. We turn to these matters below.

Would the interface to No. 49-51 Vale Street be acceptable?

1. No. 49-51 Vale Street is an intensive development. At three storeys with a recessed fourth level, it is taller than its context. It has also been built to its boundaries, including the common boundary with the review site. Its three levels (and part basement) extend to the boundary of the review site in two locations, and elsewhere it has minimal setbacks to provide private open space and daylight to the dwellings within. Balconies (that are screened) face the review site.
2. The Port Phillip Housing Association represents residents of this building. It considers that the amenity of the dwellings within that building would be adversely impacted by the proposal's height and massing.
3. We note that the Port Phillip Housing Association development has built to its boundaries with little regard to its neighbour in terms of sharing development opportunities. However, this is the built context to which this development must respond. The proposed development would be set back from 3.8 metres to 8.3 metres from the common boundary at the ground level, and these setbacks are carried to levels 1 and 2. At level 3 and above the northwest corner of the building, the setbacks are increased to 8.17 metres. The basement is also set back from 5 metres to 6.5 metres from the common boundary with No. 49-51 Vale Street. Landscaping, including canopy trees would be planted into the ground between the buildings.
4. We think the proposal's response is largely reasonable. Set backs of 6 to 8 metres on a site in inner Melbourne is generous. Such set backs are capable of mitigating possible adverse amenity impacts that arise between larger buildings. The capacity to have in ground landscaping and space for the growth of canopies would also soften the interface between the developments.

Would the interface to No. 53 Vale Street be acceptable?

1. No. 53 Vale Street is developed with a two storey building aligned to St Kilda Road boundary and Vale Street. The north half is used as an office and the south part of the land is used as a dwelling. The building turns its back to the two streets and hence its rooms face west and south. An area of secluded private open space for the dwelling is located on the west side of the building, abutting the common boundary with the review site. The dwelling is a reverse living arrangement whereby the living rooms are upstairs, and include an outdoor deck that also abuts the common boundary. We note that there are no windows in the south facing wall of the dwelling.
2. Presently the occupants of the dwelling and office have unscreened views of the rear wall and pitched roof of the outbuilding at the rear of the site. The ridge of the roof of the outbuilding would be approximately two storeys in height.
3. Mr Wissenden on behalf of the owners of No. 53 Vale Street to the north submitted that the proposed built form comprised a scale and bulk that would be unduly imposing to the residents to the north. He also considered that the landscaping would be ineffective to filter views of the proposed building.
4. The basement of the proposed building would extend to approximately 0.5 metres from the north property boundary. It would extend approximately 2 metres above the ground at this boundary. The northern wall of the apartment building would be 5.1 metres from the boundary. It rises five levels above the basement with a consistent setback of 6.2 metres, with balconies extending into the setback. The northwest corner would be set back at levels 3-5 inclusive to 7.2 metres opposite the respondent's secluded open space. It would also be set back 4.3 metres at levels ground to level 2, and 8.1 metres at levels 3-5 inclusive. Landscaping comprising canopy and medium height vegetation would be provided on the north boundary, located in planters due to the basement below.
5. We concur with the respondents and Council that only a limited effort has been made to respond to the neighbours to the north. It would have a height of approximately 20 metres, with limited variances of only one metre in the setbacks as seen from the property to the north. It would be a tall and highly imposing building that would be a marked change to the existing open sky and long distant vistas. In addition to the tall building, residents of No. 53 Vale Street would interface with eighteen balconies and two windows. Whilst they would be screened, this highly active interface would create a perception of intrusion that would severely diminish their use of the private open space, rear deck and upper living rooms in the dwelling.
6. The landscaping proposed along the northern boundary would comprise seven trees and medium height vegetation. Much of the vegetation would be in planters, and only four trees would provide a screen to the proposed building. Mr Burge opined that whilst trees can successfully grow in planters, they would be likely to reach 10 metres at maturity with sparse canopies. We think the landscaping would do little to filter and soften the visual bulk and perception of overlooking from the adjoining development.
7. We think the northwest corner where the building directly interfaces the deck and secluded open space of No. 53 Vale Street should be reduced by the removal of dwellings at levels 3 to 5 inclusive so that built form would be made considerably more recessive.

Would the development provide acceptable amenity for its future residents?

1. We have found that demolition would be inappropriate and the proposal would be inconsistent with the entirety of the planning policy framework as it would not be a respectful and tempered fit into its context. We also concur with Council and the respondents that it would impose unacceptable amenity impacts on its neighbours. It is in our view an unacceptable development.
2. We do not therefore consider it necessary to assess the amenity to be provided to its future residents.

1. It follows from the above reasons that it is our conclusion that the decision of the responsible authority should be affirmed and no permit be granted.

[1] We have considered all submissions presented by the parties although we do not recite all of the contents in these reasons.

[3] Building datasheet in the Port Phillip Heritage Review (Version 15, 2011)

[9] Mr Raworth also supported the demolition of the heritage place. We give limited weight to Mr Raworth's evidence as he was unavailable for cross examination.

[10] Expert evidence by Mr Jeff Latter, arborist Treed Environs November 2012

[11] The University of Melbourne v Minister for Planning [2011] VCAT 469

[12] [2011] VCAT 2296

[15] Palladium Investments & Anor v Port Phillip CC [2011] VCAT 1680