Stockland Developments Pty Ltd v Stonnington CC [2009] VCAT 2179

1. In permit application 0950/08 no permit is granted.

Mr Chris Canavan QC and Ms Marita Foley, Barrister instructed by Deacons. They called written and oral evidence from:

• Mr Andrew Biacsi, Town Planner of Contour Consultants Australia Pty Ltd;
• Mr Mark Sheppard, Urban Designer of David Lock Associates (Australia) Pty Ltd;
• Mr John Kiriakidis, Traffic Engineer of GTA Consultants Pty Ltd;
• Mr Stephen Hunt, Traffic Engineer of Cardno Grogan Richards.

Mr Paul Connor, Barrister by direct brief. He called written and oral evidence from:

• Mr Craig Czarny, Urban Designer of Hansen Partnership Pty Ltd.

(In order of appearance) Mr John Gourlay; Mr Paul Chiappi, Barrister instructed by Rigby Cooke Solicitors for Robert Imhoff; Mr Jeremy Beaver for VicRoads; Ms Louise Wolfers. Town Planning Consultant for TX Australia Pty Ltd.

Demolition of existing buildings and construction of a 35 storey mixed use building comprising two retail spaces on the ground floor, an office on podium level 2, 359 car spaces and 151 bicycle spaces within the lower six levels (ground to podium level 6) and 377 dwellings above the podium level within the two tower elements.

Section 77 Planning and Environment Act 1987.

Clause 34.02-1 (use land for accommodation and shop in B2Z).

Clause 45.03-1 (environmental assessment for sensitive uses in EAO).

Clause 52.06-1 (reduction in the provision of on-site car parking).

Clauses 11, 12, 14, 16.02, 17.01, 17.02, 18, 19.03, 21 (various), 22.05, 22.06, 22.09, 22.12, 22.13, 22.17, 52.06, 52.07, 52.34, 52.35 and 65.

The site is located on the eastern side of Yarra Street and has a total area of 2,142m2. It comprises 3 lots - the northern lot is vacant, the middle lot is occupied by a two storey brick building while the southern lot contains a three storey brick building.

The site abuts a laneway to the rear beyond which is a site facing Claremont Street which Council advises has approval for a 13 level, 53 metre high office tower and a 59 metre high residential tower. Land abutting to the north at 5-7 Yarra Street contains a recently constructed 22 level building which rises to approximately 74 metres above ground level. The site to the south on the corner of Yarra Street and a laneway is occupied by a three storey brick building. South of the laneway is a 2 storey building and then the building facing Toorak Road.

The South Yarra train station and railway tracks occupy land on the opposite side of Yarra Street to the west. Yarra Street is a relatively narrow road carrying two way traffic and considerable pedestrian traffic - particularly school boys walking to and from Melbourne High School to the north.

The site is very well situated close to a wide range of urban amenities including public transport, and recreational facilities and commercial outlets.

1. The Prahran/South Yarra Principal Activity Centre, and the Forest Hill Precinct in particular, have been subject to an extensive amount of forward land use planning over many decades. Unlike many parts of Melbourne, there is no policy vacuum where development proposals are assessed without the benefit of local policies and controls tailored for the particular locality and circumstances.
2. Those policies and controls have been reviewed and refined over many decades with the most recent iteration approved by way of Amendment C58 which was gazetted on 25 June 2009, just 19 days before the commencement of this proceeding. Although the content of the exhibited version of Amendment C58 was known when the permit application was lodged in 28 October 2008, the Panel report was not completed until November 2008 and the final form of Amendment C58 remained somewhat uncertain until gazettal in June 2009. This uncertainty was reflected in the evidence statements (see for example paragraph 94 of Mr Biacsi's evidence statement) but fortunately the presentation of oral evidence provided an opportunity for witnesses to respond to the gazetted controls.
3. Council initially refused the application on two grounds but subsequently added a third. The grounds can be summarised as follows:
   1. Excessive height of the proposed building.
   2. The street podium wall fronting Yarra Street at 15 metres in height exceeds the mandatory height control.
   3. Too much parking will result in unreasonable traffic congestion.
4. At the hearing Council did not pursue ground 2 and agreed that the wall height as proposed is acceptable.
5. Nearby residents and landowners had some particular issues but in general terms supported Council's reasons for opposing the development. TX Australia had quite specific concerns about the impact of the high building on television transmission from its facility on top of the Como building. Adverse impacts on television reception were also a concern for Mr Gourlay. VicRoads did not oppose the proposal but had concerns regarding the potential cumulative impact of such a redevelopment on the surrounding road network.

Is the proposal supported by the Business 2 Zone and planning policies?

1. State planning policies aim to achieve urban consolidation and more intensive use of existing services and facilities within the established urban area. Clause 12.01 aims to facilitate sustainable development that takes full advantage of existing settlement patterns, and investment in transport and communication, water and sewerage and social facilities.
2. In the hierarchy of activity centres, a Principal Activity Centre (PAC) is second only in importance to the central activities district in the heart of Melbourne. Strategies in Clause 12.01-2 include:

Developing a network of activity centres that provide different types of housing, including forms of higher density housing.

Ensuring activity centres are developed in a way that reduces the number of private motorised trips by concentrating activities that generate high numbers of (non-freight) trips in highly accessible locations.

1. Under local policy at Clause 21.09 Prahran/South Yarra including Forest Hill, this site is identified within one of two Group 1 (Principal) activity centres within Stonnington. As such, policy at Clause 22.09 seeks to direct large scale uses to the activity centre. Local policy at Clause 22.17 is specific to the Forest Hill Precinct and was amended in June 2009 as part of the gazettal of Amendment C58. It applies to all applications for use and development and is to be read in conjunction with Design and Development Overlay Schedule 8 (DDO8). The policy is based on the Forest Hill Structure Plan 2005 which was prepared:
   • To implement the metropolitan strategy Melbourne 2030 - Planning for Sustainable Growth.
   • To manage pressure for redevelopment of the precinct, as it changes from an industrial past to a mixed-use future.
   • To recognise the potential of the precinct to accommodate more intensive development and provide capacity for new higher density housing, office and other compatible uses.
2. Policy in Clause 22.17 for Urban Structure seeks, amongst a long list of aims, to:
   • Create a new precinct character based on a built form typology of podiums built to the street edge with tower elements set back to maintain sunlight access and sky views.
   • Provide for a variation of building heights between sub-precincts, to respond to their urban context and the desire to create a distinctive built form character for each area. In particular:
     • Encourage taller buildings, along Yarra Street, at the edge of the precinct.
3. DDO8 is a specific control for the 7 precincts shown on the DDO8 map and requires consideration of the Forest Hill Structure Plan 2005 before deciding on any application. The Overlay is structured with general design objectives for the whole precinct, buildings and works requirements for the whole precinct and then individual preferred character statements, design objectives and design standards for each of the 7 character areas. We discuss these as relevant later in our reasons.
4. Although DDO8 is based on the Forest Hill Structure Plan 2005, the structure plan provides much more information about the precinct and how the structure plan was developed. It includes specific commentary about Yarra Street including, for example:

This area has the potential to accommodate building heights in the order of 20 storeys, which are designed to create a new character and amenity for the street that exemplifies design excellence.

The scale of development at the southern and northern ends of Yarra Street should respond to the lower scale of development along Toorak Road and the interface with Melbourne High School.

... there exists a real opportunity to integrate additional residential development with new mixed use buildings, particularly along Yarra and Claremont Streets.

Taller buildings will generally be found along Yarra Street, close to the station and unconstrained by heritage or character.

Yarra Street frontage - this edge of the precinct interfaces directly with South Yarra Railway Station and the rail corridor. Added height of development along this frontage will assist with defining a strong urban 'edge', as well as providing opportunities for passive surveillance of the proposed bicycle and pedestrian path within the rail corridor.

1. Based on our appreciation of the Planning Scheme provisions, we agree with parties that the site is suitable for a quite intensive development and that a mix of commercial and residential use is appropriate given the Business 2 zoning, the location within a Principal Activity Centre, the unrivalled access to heavy and light rail public transport, the existing and proposed built form in the locality, surrounding land uses and the directions set out in state and local policy frameworks.
2. Given this broad policy support for much more intensive development, we consider that the key issues in dispute concern:
   1. Whether the height and built form proposed is acceptable given planning policy and the site context.
   2. Whether proposed on-site parking is excessive with resultant unacceptable impacts on the road network.
3. Although not a major issue for Council and objectors, we also deal with the question of whether the building will cause unacceptable impacts on television transmission.
4. We now discuss each of these matters in turn.

Whether the height and built form is acceptable given planning policy and the site context

1. The central issue is this case is the height of the building. The building is described by the applicant as having two towers based on the visual indentation/recess running vertically the full length of the building, using a reflective gold glass and gold metal panel cladding system. The north 'tower' has a height of 112.9 metres RL to the top of the angled roof/plant room while the south 'tower' has a parapet height of approximately 85.5 metres.
2. While there may be legitimate differences in opinion about the architecture of the building, in general terms we agree with Mr Czarny that:

The proposal is clearly of high architectural quality and contemporary in appearance when viewed in the round.

1. However the quality of the design is not at issue in this case but rather whether it has responded to policies and specific provisions for this area.
2. The DDO 8 gazetted on the 25 June 2009 includes a design standard within the Yarra Street Character Area of a preferred building height of 76 metres. It also includes a street parapet height of a between 10 metres and 15 metres but, as already noted, Council does not object to the podium rising to approximately 18.6 metres where it abuts the existing new development to the north at 5-7 Yarra Street. We agree that the podium height and the way it has been designed to take into account the natural fall of the land along Yarra Street is a suitable response to this particular site context. (DDO8 also includes a design standard requiring a 2-5 metre street setback at ground level to allow for improved traffic and pedestrian movement - a 2 metre setback has been provided and is considered acceptable by Council and ourselves).
3. The northern 'tower' of this proposal exceeds the preferred height by approximately 36 metres to the top of the angled roof/plant room or around 31 metres to the top of the parapet. The parapet of the south 'tower' exceeds this height by up to 10 metres. None of the material presented at the hearing convinces us that such an exceedence should be permitted given the weight of planning policy and the very recent approval of DDO8. We accept that planning policies and the DDO8 objectives and design standards are not mandatory controls but we consider that approval of such a tall building would significantly undermine the whole thrust of recent strategic planning for the Forest Hill Precinct. That strategic planning has sought to provide some sense of what constitutes an acceptable outcome having regard to the broad range of competing interests that have had input into that strategic planning.
4. We accept that Mr Sheppard has consistently rejected any suggestion of mandatory or preferred building heights and we understand that it was his position (or more particularly David Lock Associates) that heights not be specified in the Structure Plan or DDO8. We also accept that the panel reviewing Amendment C58 concluded in its discussion about built form controls that:

While our preference would be to have no height limits and to leave it to performance based objectives and design criteria, ultimately we think that some degree of prescription is required, so long as it is clear that this is just one element in the decision making 'mix', complemented by clear design guidelines.

1. We agree with this sentiment. The planning system in Victoria is fundamentally based on a philosophy aimed at encouraging performance based assessment of land use and development. With some notable exceptions there are very few black and white mandatory controls, particularly ones concerning height or number of storeys which is clearly a central issue for Council and neighbours in this case. While the use of discretionary or preferred heights may appear too ambiguous and open to interpretation when compared to mandatory height controls, it does not mean they have less weight; it simply means that such provisions are consistent with the fundamental principle of performance based assessment. Anyone who has been involved in the past with implementing rigid mandatory controls understands the often nonsensical, ridiculous and unsatisfactory built form outcomes resulting from such rigidity. In this case there has been no suggestion that the preferred 76 metre height be applied rigidly and there is an acknowledgement by Council (through the evidence of Mr Czarny) that a building averaging around 76 metres in height would be acceptable. He suggested a north 'tower' of around 86 metres and a south 'tower' of about 56 metres. This may or may not be an acceptable design outcome and it is not a question of determining the height based on some formula of + or - 10% of the preferred height.
2. In addition to concerns about the overall height of the building, we are also concerned about the building form. DDO8 includes a series of general design objectives for the whole Forest Hill Precinct which are categorised under 11 headings that replicate the headings used in Clause 19.03. Most of these objectives have some relevance to this proposal but it is the objectives relating to architectural quality which are of a particular interest in this discussion about the building form. One of the five objectives is:
   • To provide tall, slender building forms rather than bulky, monolithic buildings in order to minimise visual bulk.
3. Although it is applicable throughout the whole precinct it is relevant in our consideration of this particular proposal in Yarra Street. While we accept the submission that are no side or rear setback controls above the podium level in Yarra Street, and that "slenderness" was not a point of refusal, we are not satisfied that sufficient attention has been given to this design objective. At whatever height it is finally approved, this will be a very tall, very prominent and very visible building. The eventual building form and whether it appears visually slender or bulky will be crucial in determining whether it is an acceptable outcome.
4. The building form also has a more immediate impact on adjoining and nearby properties. At the hearing we asked questions about the side setbacks with a particular focus on the setbacks to the south and likely impacts on the future redevelopment potential of the site to the immediate south. This adjacent site only has a 16 metre street frontage but is also within the 76 metre high preferred height area. While we accept that the narrowness of the site automatically limits its future redevelopment potential, we are also mindful that the proposed minimal setback of the south 'tower' on the review site from this boundary would unreasonably impact on the height and scale of any future building on this adjacent narrow site). While we do not seek to set parameters for any redesigned proposal, we consider that a minimum setback of around 6 metres should be provided above podium level from the southern boundary. Such a setback will also allow for a stepping down in height and built form from the review site towards Toorak Road as set out in the preferred character and design objectives for the Yarra Street character area in DDO8.
5. In terms of applying DDO8 to this proposal it means that we can find no justification for substantially exceeding the preferred height set out in the DDO8. Let us be clear that we are not concerned about relatively minor variations but instead are concerned about a building that materially exceeds the nominated height in the DDO8.

Whether on-site parking is excessive and negatively impacts on the road network

1. The proposal provides 359 car spaces contained within the podium levels of the building. Access is via a ramp from Yarra Street at the southern end of the site. In addition a large loading bay is located off Yarra Street at the northern end of the site with lift access to the refuse bin area below. The rear laneway provides access to service areas including bin storage and 50 bicycle racks. Two cars spaces are provided but they are not intended to be used by residents. The balance of bicycle parking (101 racks) is provided on other car parking levels.
2. Council's supplementary ground of refusal was that:

The proposal provides for an oversupply of car-parking that will result in an unreasonable increase in traffic congestion.

1. Of the 359 car spaces to be provided, 344 are nominally allocated to the dwellings, 2 to the retail uses and 13 to the office use. The 344 spaces for the 377 dwellings equates to a rate of 0.91 spaces/dwelling.
2. Council does not dispute the number of spaces set aside for retail and office use but considers that a rate of 0.66 spaces/dwelling should be applied for the dwellings. This would equate to the provision of spaces 227 or 117 less than now proposed.
3. Our refusal of this proposal and a suggestion that the building be lowered in height will result in a different car parking scenario. We do not therefore need to give a definitive answer on the car parking proposed in this application but we consider it would be very helpful to give some guidance about what might be appropriate for any future proposal. In making these comments we are also conscious that VicRoads is greatly concerned about the cumulative impact on the road network as a result of the intensification of land uses in the activity centre.
4. It is unusual for a Council to submit that on-site parking should be both less than the statutory rate and less than the development is providing. Invariably the debate, particularly if residents are involved, is that the rates set out in Clause 52.06 should be met. While each case is different, the Tribunal is generally supportive of providing less parking than that required by Clause 52.06, particularly where the site is within an activity centre and with excellent access to public transport. In a recent case of VMR Property Investments Pty Ltd[1] the Tribunal in supporting a lower car parking provision made the following comments:
   1. I fully understand Mr Brygel's concerns about traffic and parking congestion and such opinions are commonly raised in Tribunal hearings by residents living in the inner parts of the metropolitan area. It may be very obvious, but it is worth noting that ever increasing traffic volumes have been a feature of our society since motor vehicles first used our roads last century. Government policies aim to reduce our dependence on motor vehicles by, amongst other things, encouraging new development into areas already well served by public transport and by trying to better match housing and work places. I also consider that the proximity to excellent public transport services (train station and tram routes within a few minutes walk or outside the site) and commercial centres within easily tram or walking distance will encourage residents to leave their cars at home, thereby reducing traffic movements even further than would be expected if the site was more remote from such facilities. Rejecting new development on sites such as the one on the review site because of a relatively slight shortfall in on-site car parking or potential for increased traffic congestion does not mean that the traffic situation will improve or stop getting worse. Allowing new development on sites such as this, located so close to public transport and in areas where people can readily access jobs, education institutions and other facilities, may eventually encourage a slowdown in the growth of traffic volumes. I accept that it may be an optimistic and long term outcome, but it is one that planning policy seeks to achieve. It is also an outcome that has recently gained added impetus because of the higher cost of fuel and the adverse environmental impacts of utilising motor vehicles to the extent that we have become accustomed to.
5. In our view the direction is all one way. Planning policy and broader State Government policy (see for example the Victorian Transport Plan 2008) is unambiguously seeking to lessen dependence on car based travel. In paragraph 7 we referenced policy in Clause 12.01-2 that seeks to reduce the number of private motorised trips by concentrating activities that generate high numbers of trips in highly accessible locations. Reducing dependence on motor vehicles has three main components:
   1. Providing very attractive alternative travel modes such as trains, trams and buses.
   2. Locating activities so that there is less need to travel long distances so that walking/cycling become practical and appealing means of movement.
   3. Providing the above are in place, discouraging people from owning motor vehicles by providing fewer opportunities for off-street car parking.
6. With the exception of central Melbourne, there are few other places in the metropolitan area that have such excellent access to public transport and such convenient proximity to a broad mix of activities and attractions. If there is to be a serious attempt at reducing our dependence on motor vehicles then this is one such location. We therefore support a significant reduction in on-site parking and in principle agree with Council's desire that car parking be less not more. Whether the exact rate is 0.66 or 0.91 spaces per dwelling is less important than that there is a genuine attempt to reduce the total amount of parking.
7. It follows that we share VicRoads concerns about the cumulative impact on the road network. Ben Elton may have taken an amusing and pessimistic view about traffic gridlock in his book Gridlock (1991) but at some point (whether in 10, 20 or 50 years) our road network will reach a point of intolerable saturation. We fail in our task if we only pay lip service to this need to reduce our dependence on motor vehicles when approving developments in such a well serviced and vibrant Principal Activity Centre.

Whether the building will cause unacceptable impacts on television transmission

1. TX Australia Pty Ltd operates free to air television re-transmission facilities on top of the Como building located on the eastern side of Chapel Street. At present it is the highest building within Forest Hill and TX Australia Pty Ltd is concerned that construction of the proposed building would cast a signal transmission shadow meaning that the transmission available to around 2,655 viewers to the west of the proposed building would be affected.
2. While we are sympathetic to the concerns raised by Ms Wolfers, it is our understanding of the technology that any large buildings around the re- transmission site have the potential to create shadows and affect television reception. The potential problem is not unique to this development and every proposal for a tall building will have the potential to adversely affect free to air television reception. It is also obvious that the lower or narrower the building the less shadowing that would be caused.
3. As discussed at the hearing, we consider that a more strategic approach needs to be taken on this matter rather than responding to every application on an ad hoc basis. Although it is beyond the ambit of our discretion, we would strongly encourage TX Australia Pty Ltd to discuss with the State Government the desirability of introducing a planning control/policy to allow a consistent approach to be taken of this issue in all applications around the Como site (and other re-transmission sites where they exist). What form that control/policy may take is not something we are in a position to comment on but our refusal of this application provides an opportunity for the issue to be further investigated prior to any new application on the review site.

1. Having regard to all of the above, we will therefore order that no permit issue.

[1] VMR Property Investments Pty Ltd v Moonee Valley CC [2008] VCAT 1265