Mr Stephen Wainwright, Coordinator Statutory Planning, for the City of Yarra.

1 This matter came before the Tribunal on 17 November 2004. It involved the development of 15 dwellings in a three storey building over a basement carpark. The review site is located on a corner comprising 6 lots with a total site area of some 1234 square metres. Its primary frontage is to Cameron Street with a length of more than 50 metres.

2 On 22 December 2004, the Tribunal issued an interim decision. This decision must be read in conjunction with the remarks made in our interim one. As an overview, we found that the site would be highly suitable for medium density housing. We found however that there were a number of deficiencies with the proposal. In broad terms, this included the need for a better transition of the upper level (second floor) to adjoining single storey development; carpark layout changes and most critically, improvements to the Cameron Street elevation by emphasising vertical rather than horizontal articulation. We identified a list of suggested modifications deemed necessary to address our concerns. Rather than refuse the application, we invited the applicant to prepare amended plans in accordance with the list of modifications.

3 We recognised that some of our suggested modifications are substantial or may be difficult to appreciate unless viewed on a plan. We also accept that consequential amendments may arise. That is why our Directions required the amended plans to be circulated to all relevant parties who may be affected by consequential modifications or by modifications suggested by us. Opportunities for further submissions are considered an important part of that process.

4 We have now received several written submissions in response to the modified plans. Objections to the proposal were maintained by the Council and a number of other respondents citing non-compliance. We also received a letter of non-objection to the revised plans from Ratio Consultants on behalf or Roger and Colleen Peterson. We have considered those written submissions and those made orally at the subsequent hearing of this matter.

Statement of principle pertaining to amending plans

5 The opportunity provided to permit applicants by the Tribunal to amend plans is a privilege. Otherwise the Tribunal, if it were not satisfied that the development would be acceptable even with conditions, would refuse planning permission.

6 It is an opportunity not to be missed, because it is always easier for the Tribunal simply to refuse with reasons, rather than to calculate what modifications would make the plans acceptable in the particular circumstances of each case.

7 Further, that opportunity does not have to be taken up by the developer if he/she does not wish to do so. Our Directions clearly stated:

The Permit Applicant is to advise ......whether it intends to lodge amended plans in accordance with the opportunity and leave hereby given, and in accordance with the Tribunal's recommended plan modifications.

8 The benefit of this opportunity is to save the developer the cost of having to start again. Rather than a fresh application, the developer, council and objector parties who are already involved and have the background factual knowledge are all able to deal with an amending set of plans by returning to the Tribunal.

9 It also saves council's time and resources of considering a fresh application for a similar proposal.

10 In Rowcliffe Pty Ltd v Stonnington[1], a pertinent discussion summarises the process of inviting amended plans:

[6] At the outset something needs to be said regarding the process of inviting amended plans in these circumstances. In cases where the proposed proposal is generally satisfactory and the changes sought are minor or modest, the Tribunal normally leaves final adjustments to be carried out to the satisfaction of the Council, and it does not require the parties to attend a further hearing. However, in circumstances where the changes are more substantial, it is common for the Tribunal to pursue the course undertaken here, namely, to invite new plans but allow all parties an opportunity to make submissions in respect of them.

11 The Tribunal's calculations in these circumstances often involve:

i

setbacks for recessiveness; building bulk and scale;

ii

façade treatment and articulation in response to significant neighbourhood character features;

iii

internal amenity considerations for future occupants, such as air and light entry and which can sometimes include pedestrian circulation through a large development;

iv

parking and traffic considerations to facilitate convenience of access, functionality and to minimise off-site impacts;

v

landscaping improvements.

12 In this case, we feel this opportunity was missed, just as it was missed in Rowcliffe Pty Ltd v Stonnington, where the developer simply did not listen to a number of suggested modifications. We regard a number of the modifications which were not taken up by the developer, as being critical to acceptance of this proposal.

13 Before turning to our assessment of the modified plans, we think it necessary to say something about our Direction requiring the developer to prepare an "accompanying letter pointing out each modification made". We acknowledge that a statement outlining various changes was prepared and circulated with the amended plans. However, during our review of the documents sent to us, it became apparent that not all of the modifications had been declared. By this we do not mean amendments which are trifling or inconsequential in terms of their impacts internal or external to the review site. Rather, in this case we refer to modifications which we regard as fairly substantial in nature. Most notably, we discovered that the number of units had been increased from 15 to 16 and an additional car space provided.

14 We make it clear that non-compliance with our direction to identify each modification made is not the reason for our refusal of this proposal. Nor would we have necessarily refused permission for the additional dwelling in the particular circumstances of this case, had we been able to grant a permit. Rather, we wish to emphasise that when agreeing to our invitation to amend plans, an invitation we regard as a privilege, the developer also has certain obligations to the Tribunal and other parties which we expect to be met. Our Direction requiring the developer to declare each modification, serves the following purposes:

•

Expedites the process of reviewing plans by the Tribunal, the Council and other parties, at a stage in the process where considerable resources have typically been expended by those involved;

•

Facilitates procedural fairness by ensuring that parties are not taken by surprise from undisclosed modifications that might otherwise be overlooked, but which may impact upon their interests;

•

Allows, if necessary, the Tribunal to fine-tune permit conditions with the knowledge of and participation by interested parties.

15 In forming our view as to whether we should grant a permit, we think it is useful to consider those findings which led to the formulation of our suggested modifications and the consequences of non-compliance. We have taken these principles into account when considering the amended plans and the response to our suggested modifications. We have categorised the findings from our review of the amended plans under three main headings, namely:

•

Full compliance with a suggested modification;

•

Full or partial compliance with a suggested modification which could be cured by further permit conditions; and

•

Full non-compliance.

16 From our review of the amended plans, it is clear that a number of our suggested plan modifications have been fully complied with. They are as follows:

iv deletion of screens to the south facing balconies and windows for improved daylight access;

v site layout and elevation plans to depict existing natural ground level and proposed finished site and floor levels, demonstrating that the basement does not protrude above existing natural ground level;

vi a lowering of the building by up to 1m such that no walls or parapets have a height greater than 9.0 metres (or 8.8 metres if desired by the applicants) with the elevation plans incorporating RL's at the top and bottom of such features and proposed floor to ceiling heights;

viii detailed design of the ramp to the basement (including the provision of a north-south cross-section through the ramp) showing proposed finished levels at each change of grade including levels at the top and bottom of the ramp, with such design to accord with the relevant Australian Standard (Australian Standard for Off-Street Car Parking, AS2890.1:2004);

ix a cross-section through the basement entry demonstrating that a clearance of 2.2 metres is available;

xi the provision of at least 5 canopy trees within the front setback area along Cameron Street and 2 canopy trees within the front setback area along Bank Street at a minimum height of 4.5 metres height at the time of planting.

17 We note that further modifications have been undertaken to the plans either as a consequence of our suggested modifications or in addition to them which we consider to be acceptable or warrant further comment. They are as follows:

•

deletion of the proposed geometric façade treatment to achieve a simpler design theme which better responds to the finer-grain appearance of older housing stock on narrow lots

Geometric façade treatment deleted. See our discussion about the façade treatment below.

•

clearer definition of the parapet line at the building's first floor along Cameron Street and transitioning to the prevailing eave height of the cottages in Bank Street

The Cameron Street parapet is more clearly defined and the building now provides an acceptable transition in scale to the cottages in Bank Street

a.

deletion of Unit 12;

b.

permitting unit 11 to extend northwards up to 7 metres from the northern boundary, provided it is articulated along that northern elevation;

c.

setting back Unit 11's western elevation by a further 3m from the level below, including any balconies

Overall compliance with setbacks achieved. Balcony introduced on north side with a setback of less than 7m from this boundary but is acceptable. Balustrade materials to northern balcony need to be consistently depicted on elevations and site plans.

x increase the width of car spaces nos. 18 & 21 to 3 metres and widen the car wash by deleting its abutting kerb

Car spaces and car wash now deleted following modifications to ramp design and car park layout. Modifications are acceptable.

xii a full schedule and samples of proposed building materials, finishes and colours including specific reference to different elements on each elevation and incorporating the use of low maintenance materials and finishes.

Plans indicate proposed materials and finishes and samples were shown to us at the hearing. However, see comments below regarding the 'lightweight, recessive appearance" of the second floor.

Partial compliance which could have been cured by permit conditions

18 A number of modifications we have requested have been partially complied with but require some 'fine tuning'. We regard these modifications as important to achieve an acceptable outcome. However we are confident that any outstanding issues identified can be readily resolved through the imposition of permit conditions requiring the submission of further amendments for final approval by the Council. We also consider that these further necessary modifications are fairly discrete in nature. That is, we envisage that any consequential modifications will not occur or will be so minor that their consideration by third parties is not necessary.

19 The modifications and our comments on them are as follows:

ii

Redesign the building façades to reduce its horizontality including:

the design of the second floor such that it will have a light weight, recessive appearance.

xii a full schedule and samples of proposed building materials, finishes and colours including specific reference to different elements on each elevation and incorporating the use of low maintenance materials and finishes.

The use of 'aluminium-satin finish' cladding to the second floor is proposed in response to these conditions. Like Council, we have some reservations about the acceptability of this material in terms of its compatibility with other materials proposed and its extensive use reminiscent of a commercial building.

d. setting back the second floor from the level below, including any balconies, by an additional 2 metres from Cameron Street.

This condition would require a 6.6m setback from Cameron Street to what is now described as Unit 15. A 5m setback has been provided instead. We would require a further permit condition stipulating a 6.6m setback.

vi elevation and roof plans to show the location and dimension of any roof-top plant including any lift overrun and mechanical ventilation from the car park, designed as an integrated part of the building such that these elements will not be unreasonably obtrusive

Roof plan and sections indicate that a lift overrun will not protrude above the parapet height. No details of mechanical ventilation have yet been provided. We would require a further plan amendment showing the location and design of mechanical plant.

x design detail of any front fencing, such that such fence is not higher than 1.5m and is of a transparent appearance

We would require an elevation detail of the fence design to supplement notations provided on the plans.

20 We regard the final category of modifications as critical to the acceptance of this proposal. These modifications, which were not taken up by the applicant are:

i Redesign of the building façades to reduce its horizontality including:

•

greater accentuation of vertical building elements including the breaking of the Cameron Street façade into 5 or 6 distinguishable modules;

•

...

•

the use of narrower glazing elements in lieu of large expanses of glazing and clearer definition of entries reminiscent of traditional design themes in the area;

21 These suggested modifications arose from our observations of the neighbourhood within which the review site is situated. In our Interim Decision of 22 December 2004, we expressed the view that this proposal ought to respond to a number of key design features in the neighbourhood. This includes the narrow width of lots and resultant pattern of development which has a vertical rather than horizontal emphasis at street level. Our reasons for requiring these modifications are expressed in clear and unambiguous terms in paragraphs 39 to 44 inclusive of our interim decision. We set out in full the relevant paragraphs (emphasis added):

[39] We are of the view that the traditional lot pattern plays an important part in defining the form of development which has occurred. Many allotments in streets nearby have fairly narrow widths in the order of 6m to 11m. New development should be designed to respond to the resultant pattern of existing development and to respect the sense of streetscape rhythm, which Mr Wainwright described as being unifying features in the neighbourhood.

[40] We agree that the proposed fussy façade treatment using variously angled wall panels of unspecified materials do not respond to the fine grain and pattern of existing development. We find that the façade treatment appears to have been applied as an afterthought, to what is otherwise a fairly box-like building form behind. Too often proposals come before us that are overly reliant on architectural add-ons to building façades as the primary means of achieving some sense of articulation.

[41] In contexts such as this, we find such an approach does not adequately respect the fine-grain character of development nearby, where buildings themselves and the spacing between them make a significant contribution to the streetscape rhythm. Thus, we are concerned that the proposed building will still read as a large and imposing horizontal form without offering a more refined level of vertical architectural relief.

[42] In any redesign, the building itself should be designed so as to read as a series of 5 or 6 vertical modules along Cameron Street. Better definition of entries and balconies to each module will also assist in mediating the horizontality of the building, particularly at pedestrian level.

[43] We envisage that this will involve a complete rethink of the proposed façade treatment (all elevations) to include a greater degree of articulation generally and clearer definition between the various building modules. We observed a number of what we believe are good examples of contemporary medium density housing nearby that achieve these objectives. These include developments on the south-east corner of Thomas and Cameron Streets and on the west side of Thomas Street, north of Cameron Street.

[44] Greater definition of the parapet line at the building's second storey along Cameron Street and transitioning to the prevailing eave height of the cottages in Bank Street is also recommended. Consideration should also be given to the design of window and door openings so as to better reflect the more traditional narrower width of these elements rather than introducing expansive areas of glazing.

22 We acknowledge that the geometric wall panels have now been deleted. What remains, however, is the same "fairly box-like building form behind" which has simply been dressed-up with architectural add-ons of a different kind. Conceptually, we regard the provision of the five town-house style units facing Cameron Street as providing an appropriate framework or 'the bones' for the vertical expression of the building which we believe is necessary. We anticipated that this configuration could be readily adapted to achieve our suggested modification of providing 5 or 6 clearly defined modules. However, we note for example that the footprint of the building at ground and first floor is substantially unchanged, even though we envisaged that the modified plans would involve "a complete rethink of the proposed façade treatment ... to include a greater degree of articulation generally and clearer definition between the various building modules". This has simply not been done.

23 The modified plans fail to provide 5 or 6 clearly defined vertical modules to Cameron Street. Front entries are not clearly articulated being tucked away behind the main façade. Large planes of glass continue to have a strong horizontal appearance rather than referencing the narrower more traditional width of windows which are characteristic in the neighbourhood. Materials and colours are again relied upon as the primary form of articulation rather than the building form itself expressing a more refined degree of vertical articulation. For the observer at street level, we find that the building and the sum of its parts will continue to read as a substantial horizontal form which will not adequately respond to its context.

24 Like the Tribunal's findings in the Rowcliffe Pty Ltd v Stonnington case we find that the applicant is "no closer to providing an appropriate solution" to the critical design issues than it was in November 2004. We provide the relevant extract from that case:

[21] The Tribunal is left with the following dilemma. On the one hand, it is patently clear that the site is suitable for a substantial residential development, and there is strong policy support for the proposal. The devil is in the detail. On the other hand, fairness dictates that there must be an end to litigation. Both the Responsible Authority and the objectors have devoted a considerable amount of resources in pursuing their opposition to this project. The Tribunal has come to the view that this opposition is well founded. The objectors contended (and the Tribunal agrees) that it would be unfair to provide yet another opportunity to supply amended plans. In the Tribunal's view, the applicant is no closer to providing an appropriate solution that it was in December 2003.

25 We also find as the Tribunal did in the Rowcliffe case that it would be unfair on those opposing the proposal to allow yet another opportunity to supply amended plans.

26 For the foregoing reasons, we affirm the Council's decision. We will order that a permit must not be granted.

[1] [2004] VCAT 1370