MEDIUM NEUTRAL CITATIONS: [2003] VCAT 1484

The Responsible Authority must issue a permit for demolition of buildings and development of a 28 storey building (comprising 27 levels of residential apartments with ground floor commercial spaces and a residents' gymnasium) with ancillary car parking in four basement levels in accordance with the endorsed plans (as tabled at VCAT Review Hearing P355/2003).

1. Prior to the commencement of the development hereby permitted the applicant must submit to the Responsible Authority three copies of plans drawn to scale generally in accordance with the plans accompanying the application but amended to show:

a) Sufficient headroom for disabled parking spaces.

b) Sufficient garbage storage facilities to be provided on site.

c) Detail and likely location of any external service facilities such as air conditioners.

d) Access to services and the provision of sanitary facilities within Tenancies 1 and 2 to be in accordance with AS 1428.

e) Bollards or other separation devices to be placed at lift doors which are off car park aisles to provide protection to pedestrians. Signs must also be provided warning pedestrians of moving traffic directly outside the doors.

These amended plans must be to the satisfaction of the Responsible Authority and when approved shall be the endorsed plans of this permit.

2. Wind tests must be carried out on a model of the proposed building to the satisfaction of the Responsible Authority and modifications must be made to the design of the building to reduce any adverse wind conditions, to the satisfaction of the Responsible Authority.

3. Car spaces must be allocated and marked to designated users to overcome unnecessary movements between floors using the car lifts.

4. All garbage and other waste material must be stored in an area set aside for such purpose to the satisfaction of the Responsible Authority.

5. No garbage bin or waste materials generated by the permitted use shall be deposited or stored outside the site and bins must be returned to the garbage storage area as soon as practicable after garbage collection.

6. The area (s) shown on the endorsed plans as garbage storage area(s) must contain floor waste tap and the area(s) must only be used for garbage storage.

7. Garbage storage and collection arrangements must be to the satisfaction of the Responsible Authority.

8. The minimum clearance to the underside of the proposed projections beyond the site boundaries from the existing footpaths shall be 3 metres and the minimum setback from the adjacent kerb faces shall be 750mm. Projections proposed to project beyond 750mm behind the face of the kerb shall be a minimum clearance to the underside of 5 metres above the road surface. All verandahs and balconies shall be drained to legal points of discharge in accordance with plans and specifications first approved by Councils Group Manager - Engineering Services.

9. The owner of the subject land shall construct a drainage system within the development and make provision to connect this system to Councils underground stormwater drainage system in accordance with plans and specifications first approved by Councils Group Manager - Engineering Services.

10. The owner of the land shall construct all necessary vehicle crossings and demolish all unnecessary vehicle crossings adjacent to the subject land in accordance with plans and specifications first approved by Councils Group Manager - Engineering Services.

11. The owner of the subject land shall not alter existing footpath/road levels without first obtaining the written approval of Councils Group Manager - Engineering Services.

12. The owner of the subject land shall reconstruct the footways adjacent to the subject land in accordance with plans and specifications first approved by Councils Group Manager -Engineering Services.

13. All necessary approval and permits are to be first obtained from Council and the works preformed to the satisfaction of Councils Group Manager - Engineering Services.

14. The design of the car park must be safe, convenient and non-discriminatory for people with disabilities.

15. Except with the further consent of the Responsible Authority, the gymnasium is to be for the exclusive use of residents of the subject site.

16. Prior to the commencement of the development, the landowner must prepare a construction management plan indicating a works program, with the objective of minimising the impact of construction works upon the adjoining properties, to the satisfaction of the Responsible Authority. The plan must specify (but not be limited to) a dilapidation survey of surrounding buildings, the means of reducing impact (at the cost of the landowner) of dust, noise, vibration and the like, upon adjoining properties and hours of construction.

17. The developer and its builders shall use all reasonable care to undertake the construction activities associated with the project in a manner which ensures that clear access is maintained to adjacent properties, to the satisfaction of the Responsible Authority.

18. Prior to the commencement of the development either:

(a) A certificate of Environmental Audit must be issued for the land in accordance with Section 57 AA of the Environment Protection Act 1970, or

(b) An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Section 57 AA (5) (b) of that Act that the environmental conditions of the land are suitable for the sensitive use.

A copy of the certificate or statement shall be provided to Council prior to the commencement of development and any recommendations contained in the certificate or statement must be complied with. The certificate/statement shall be obtained at no cost to Council.

19. A schedule of all external materials and finishes must be submitted to the satisfaction of the Responsible Authority prior to the commencement of any buildings and works on the land. The schedule must show the materials, colours and finishes of all external walls, roof, fascias, window frames, glazing types, doors, fences and paving, (including car park surfacing), outbuildings and structures.

20. Glazing materials used on all external walls must be of a type that does not reflect more than 15% of visible light when measured at an angle of 90 degrees to the glass surface, to the satisfaction of the Responsible Authority.

21. Prior to the commencement of development it must be demonstrated to the satisfaction of the Responsible Authority that the development will achieve a minimum rating of 4 stars, as defined by the Sustainable Energy Authority.

22. A legally binding agreement under Section 173 of the Planning and Environment Act 1987 shall be entered into between the landowner and the Responsible Authority prior to the commencement of the development concerning liability, maintenance and possession of parts of the development that extend into air space or sub-soil of land vested in the care and maintenance of Council. The owner of the property being developed must pay all of Councils reasonable legal costs and expenses of this agreement, including preparation, execution and registration on title.

23. Any equipment or plant must not generate a noise level greater than then

5 db (a) above ambient L 90 sound level at the boundaries of the site at any time of day.

24. Dividing walls and floors between dwellings must be constructed to limit noise transmission to 45 STC (Sound Transmission Class) in accord with Part F (5) of the Building Code of Australia.

25. The demolition hereby permitted must not be commenced unless and until the Responsible Authority is satisfied that the permit holder has made substantial progress towards obtaining the necessary building permits for the development of the land generally in accordance with the development of the land proposed under this permit and the permit holder has entered into a bona fide contract for the construction of the development.

26. The development as shown on the endorsed plan(s) must not be altered or modified without the prior consent of the Responsible Authority.

27. The time for the commencement of the development hereby authorised is, pursuant to Section 68(1) of the Planning and Environment Act 1987, specified as 2 years from the date of issue of this permit and the time for completion is specified as 2 years from the date of such commencement.

The time within which the development is to be commenced or completed may on application made before or within 3 months after the expiry date of this permit be extended by the Responsible Authority.

Mr A Finanzio of Counsel, represented the City of Melbourne. He called evidence from:

Mr I. Pitt SC, instructed by Vincent Verduci & Associates, represented the Applicant for Review. He called evidence from:

Mr R Umbers, represented various objectors for most of the hearing and more particularly objectors who were members of the East Enders Inc.

Mr PW Mathews, substituted for Mr Umbers in his absence.

1. This is an Application for Review pursuant to Section 79 of the Planning and Environment Act 1987 concerning the failure of the Responsible Authority to determine the application within the prescribed time.

2. Subsequent to the lodgement of the Application for Review the Responsible Authority formed the opinion that had it the power it would have refused the application.

3. It is proposed to develop a residential tower of 28 storeys comprising 27 levels of residential apartments and above two ground floor commercial spaces fronting Little Lonsdale Street and a residents' gymnasium facing Exploration Lane. There will be a four level basement car park containing 60 car parking spaces with access via a rear (Evans) Lane. Access to each basement will be achieved by using two car lifts.

4. The proposed development is predominantly built to all title boundaries at ground level and the three immediate residential levels forming a podium and then a tower will be placed above the podium for a further 24 levels. At ground level , and more particularly the Little Lonsdale Street frontage two retail tenancies with shop fronts are proposed. The tower will have various setbacks ranging from 2 - 3.5 metres to Exploration Lane, 4.4 - 5.5 metres to Little Lonsdale Street and 1 - 1.5 metres to part of the eastern boundary.

5. In total 163 one and two bedroom apartments are provided. The one bedroom apartments will be about 51.2 square metres whilst the two bedroom apartments will be between 64 and 75 square metres in area. There will be two larger apartments having areas of 108 square metres on Levels 26 and 27.

6. There is provision for a refuse collection area on the ground floor with access to the rear (Evans) Lane and a narrow canopy to provide weather protection along the Little Lonsdale Street and rear lane.

7. The Tribunal was told the total height of the building would be about 94 metres and the building would be essentially oriented to face west with exposed northerly and southerly elevations. The eastern elevation, that is the side of the building facing towards Exhibition Street, will have a far more solid appearance but would be treated with terracotta curtain walls with articulated zinc panels.

8. The subject site is located within the block bounded by Latrobe, Exhibition, Lonsdale and Russell Streets and is located towards the north-eastern edge of the CAD grid. It has a primary frontage of 16.47 metres to Little Lonsdale Street and 34.01 metres to Exploration Lane. It also has a frontage of about 16.5 metres to Evans Lane.

9. The site has been occupied by a single storey big brick garage with carparking across the southern part of the site, a single storey brick warehouse formerly used for motor repairs, and a double storey rendered warehouse across the northern part of the site. All of these buildings will be demolished.

10. Land adjoining the site comprises two and three storey buildings to the immediate east in Little Lonsdale Street, two and three storey buildings to the west on the other side of Exploration Lane, and two storey buildings opposite on the southern side of Little Lonsdale Street.

11. It is noted the immediate built form of Little Lonsdale Street is predominantly low scale within the street frontage and immediate intersecting lanes, however these are set in amongst a backdrop of higher buildings more particularly to the north and east of the subject site and in particular:

* The Rockman's Apartments, 33 storeys in height at 285 Exhibition Street

* The Marriott Hotel, 16 storeys, 254 Exhibition Street

* Australia Post building, 20 storeys, 95 Latrobe Street

12. The Tribunal was told there had been a number of development approvals in the immediate above listed block. It was told these were usually in the range of 5 to 10 levels and included: 158 Little Lonsdale Street, 23 Bennetts Lane and 17 to 19 Exploration Lane. Some of these developments have not commenced.

13. The Tribunal was told that the Wesley Uniting Church site which is diagonally south-west of the subject site has an approval for a number of buildings including a 22 storey tower adjacent to the Rockman's Regency Apartments.

14. Little Lonsdale Street is a one-way west to east street with kerbside parking and loading zones. Exploration Lane and Jones Lane (opposite or extending from Exploration Lane) are two-way. Evans Lane, which is off Exploration Lane is a one-way west to east lane but doglegs around to provide egress to Little Lonsdale Street.

15. The land is located within the Capital City Zone Schedule 1 (Outside the Retail Core). The purposes of the Capital City Zone include:

* To enhance the role of Melbourne's central city as the capital of Victoria and as an area of national and international importance.

* To create through good urban design an attractive, pleasurable, safe and stimulating environment.

16. The purpose of Schedule 1 of the Capital City Zone is:

* To provide for a range of financial, legal, administrative, cultural, recreational, tourist, entertainment and other uses that complement the capital city function of the locality.

17. The site is located within a Design and Development Overlay Schedule 1 -Area 3. This overlay deals with ground level street frontages which should incorporate:

* Retail premises, customer service areas or other similar activities.

* Window and door openings, displays, artwork or architectural detailing.

* Scale appropriate to the street and proximity to pedestrians.

* To construct a building which casts a shadow between 11am and 2pm on 22 March and 22 September over public space including major pedestrian routes including streets and lanes;

* To construct a building which does not extend to the road boundary of the site, including any part of a building within 10 metres of a road frontage which is inconsistent with the predominant road frontage parapet height;

* To construct any part of the building exceeding 40 metres within 10 metres of a road frontage;

* For buildings and works at ground level (under the DDO).

It is noted that with the exception of demolition the application is exempt from notice and review provision in the Planning and Environment Act..

19. There are various Decision Guidelines in Schedule 1 to the Capital City Zone and these include:

* Consideration of the streetscape, the scale and height of the neighbouring buildings and the proposed development.

* The existing and future use and amenity of the land and the locality.

* The effect of the proposed works on sola access to existing open spaces and public places.

* The potential for increased ground level wind speeds and the effect on pedestrian comfort and the amenity of public places.

* The design of building to provide for solar access, energy efficiency and waste management.

20. The Schedule to Clause 52.06-2 includes specific car parking provisions applicable in the Capital City Zone. The Tribunal was told these seek to limit the number of car spaces that are provided, but they allow additional parking to be provided in conjunction with dwellings.

21. There are various State and Local Planning Policies of relevance including:

* Clause 18.02 Car parking and Public Transport Access to Development

22. Melbourne 2030, the new Metropolitan Strategy reinforces the general thrust of the existing State Planning Policies referred to above and in particular:

* Policy 1.1 seeks to build up activity centres as a focus for high quality development, activity and living for the whole community. Implementation measures include:

"Supporting the role of the CAD as Metropolitan Melbourne's largest central activity with the greatest variety of uses and functions including commercial, retail, housing, highly specialised personal services, eduction, government and tourism.

* Policy 1.3 seeks to locate a substantial portion of new housing in or close to activity centres. Implementation measures include:

"Encouraging higher density housing development on sites that are in and around the central activities district."

* Policy 5.1 seeks to promote good urban design to make the environment more liveable and attractive.

* Policy 6.1 seeks to increase the supply of well located affordable housing.

* Policy 8.8 seeks to promote the use of sustainable personal transport options.

23. In the Local Planning Policy Framework "CityPlan" (Clause 21), is the City of Melbourne's Municipal Strategic Statement 1999 and contains specific Planning and Urban Design Policies and Guidelines for development in the CBD. This includes encouragement of residential usages in the Capital City Zone, but requires buildings to be designed to minimise conflict between residents' reasonable amenity needs for solar access, quiet access and outlook and the future development of the CBD.

24. Clause 21.01 provides Urban Design Principles and Guidelines for the Zone. This urban design policy seeks to ensure that the physical environment continue to be recognised for its character and the liveability it engenders. The relevant valued elements of the City's character include:

* The orderly structure of the "Hoddle Grid" with its hierarchy of streets, lanes and arcades and it intricate subdivision pattern.

* The pedestrian amenity of the streets, lanes and arcades.

* Buildings with an active interface with the street and public spaces which provide architectural detail, excitement and interest at skyline and pedestrian levels.

* The formal definition of streets and public spaces created by consistent building frontages at the street alignment. More specifically the policy implementation addresses:

* 2.0 circulation - lanes, through - block arcades and links and

25. Clause 22.02 contains policies related to sunlight access to public spaces and Clause 22.09 contains policies for car parking in the Capital City Zone.

26. The Tribunal was told that Melbourne City Council had exhibited Amendment C60 to the Planning Scheme and which has recently been placed before an Independent Panel. The Amendment proposes changes to the Municipal Strategic Statement and some local policies. We note the Panel has not reported to the Planning Authority on the amendment and parts of it (at least) are uncertain.

27. At the review hearing both parties made detailed written submissions and called various expert evidence. All witnesses were available for cross-examination. We were provided with a substantial array of information and supporting documentation including planning scheme controls and policies, locality plans, planning scheme maps, photographs of the subject site and surrounding properties, various graphic displays of the proposed building, shadow diagrams. Samples of the proposed materials and a large scale model were also provided. The Tribunal and all parties attended a "virtual reality" display at the Urban Futures Laboratory RMIT and following this it undertook a detailed inspection of the subject site, surrounding properties and the locality in general.

28. At the commencement of the hearing Mr Pitt sought leave to substitute the plans in the application. He advised these had been pre-circulated to all parties including objectors well in advance of the review hearing. There was no objection raised to the substitution (including Mr Umbers) and accordingly the Tribunal substituted the plans pursuant to Section 64 of Schedule 1 of the VCAT Act.

29. The plans forming part of this development application are now described as. Job 28601/TP00 to 07 inclusive - edition G, TP08 - 12 inclusive - edition H, and TP13 - 22 inclusive - Edition G, and are signed by Tribunal Member PG O'Leary.

30. Also Mr Pitt objected to Mr Umbers' clients being parties to the proceeding. He advised the Tribunal that with the exception of demolition issues which were not at issue in this application, all other matters which were the subject of a planning application were exempt from notification and review rights and therefore those parties should have no standing in this matter.

31. Mr Umbers sought leave to be a party. Mr Umbers sought the discretion of the Tribunal pursuant to Section 60(1) of the Victorian Civil and Administrative Tribunal Act 1998 on the basis that his clients had an interest in the area as residents of nearby dwellings. Mr Umbers relied on a decision of Deputy President Horsfall in Anthony Stokes & Associates v Dandenong CC (2000) VCAT 1613 were the Tribunal had allowed objectors to be parties despite the exemption provisions on the basis that the exemption provision did not have the effect of excluding objectors from objecting to the permit application nor from lodging a statement of grounds to contest the Application for Review against the refusal of a permit or in this case a failure to grant a permit. Mr Pitt opposed the request and relied on Sweetvale Pty Ltd and anor and VCAT and others (2001) VSC 426 to argue that with the exception of demolition issues the objectors did not have standing to object or seek a review of the Responsible Authority's decision.

32. Mr Finanzio in supporting Mr Umbers application sought to distinguish the Sweetvale decision from this matter. He claimed that it should be distinguished in this case because the Council had not made a decision on the matter and this was a proceeding under Section 79 and not under Section 82(1) of the Act.

33. The Tribunal chairman suggested that having regard to Mr Pitt's objection to Mr Umbers' clients being parties to the proceeding, that the parties may be assisted if the Tribunal exercised discretion and sought submissions from Mr Umbers' clients pursuant to Section 98(1) of the VCAT Act where the Tribunal may inform itself on any matter as it sees fit.

34. There was discussion amongst the parties and this course of action was seen to be acceptable to all parties. It was noted that the objectors would have rights to be a party in regard to demolition matters. However all parties agreed that demolition was not an issue in dispute in this Application for Review. Accordingly the Tribunal exercised Section 98(1)(c) and allowed Mr Umbers to make submissions (only) on behalf of his clients.

35. Mr Finanzio argued the scale of buildings on laneways and in the small streets is an important contributing factor to the amenity of the public spaces at ground floor. He claimed the planning policy framework makes it clear that the scale is a very important aspect of pedestrian amenity and contextual design in the laneways and the subject land which is immediately surrounded by buildings significantly smaller in scale than that proposed.

36. Mr Finanzio argued the applicant was wrong to justify the proposed tower on the basis of the relationship between the tower and the podium and reliance on medium and longer range views of the building against a backdrop of taller buildings. He claimed the podium is simply inadequate in this case as a technique separating the tower from the street and the towers that are the backdrop are not the dominant context for this mid block location. He called Mr Graeme Dixon, Town Planner, whose summary of evidence was:

"My conclusion is that the proposed 28 level development will have a negative impact on the important built form character of Little Lonsdale Street and adjacent lanes in this mid-block location.

The proposal is out of scale with adjacent buildings and valuable streetscape, more suitable to a major street frontage site. It does not recognise the distinction between streets in the hierarchy, which is a distinctive part of Melbourne's character.

The Little Lonsdale Street streetscape contains a significant number of B, C and D graded buildings, in Level 2 and 3 streetscapes.

This together with the Wesley Central Mission precinct and the high number of Category A lanes create a unique and sensitive built form environment which requires infill development, sensitive to that scale and character.

The proposal does not meet this test, and there are no mitigating circumstances, which would support development of this density and scale in this location.

The block-by-block development of individual character along Melbourne's minor streets has added diversity and interest to the city, and here the opportunity exists to build on a distinctive streetscape environment.

The building, because of its scale and podium form with relatively minor setbacks to the tower element, I believe will prejudice the pedestrian environment in the abutting streets, both visually and potentially with wind effects.

Secondary factors, which are of concern, are the relative lack of response to sustainability issues such as energy efficiency, although these could be dealt with by condition, as should a number of other design and facility matters raised.

Finally, the mixture of old and new buildings creates visual and planning tension, the treatment of streetscape a major consideration. Height and rhythm, not architectural style, determines what is an appropriate balance. That balance is not evident in this proposal.

For these reasons I cannot support the proposal as it currently stands. A significantly lesser scale building of about 10 levels would be a more appropriate development, with an appropriate response to sustainable building design."

37. Mr Finanzio also relied on Mr Craig Czarny whose summary of evidence was :

"In assessing the proposal against relevant strategic and statutory documentation and principles of good urban design, the proposed development will:

* negatively affect the Little Lonsdale Street and Exploration Lane streetscape as a function of the proposed building's form and scale.

* erode the particular townscape character of Little Lonsdale Street's 'East End' between Russell and Exhibition Street as a result of its considerable three dimensional presence.

* impact upon the sensitive arrangement of views and vistas that define City's skyline and the traditional grid pattern of main and little streets and lanes,

* limit the capacity of Little Lonsdale Street and Exploration Lane to serve as high amenity pedestrian environments, and

* present an inappropriate design format and scale given the site's location and its immediate urban contexts.

I believe that the proposal fails to comply with the key principles of good urban design and I support Council's grounds of refusal."

38. Mr Finanzio referred the Tribunal to the decision in John Douglas Architects Pty Ltd v Melbourne City Council (2000/40379) which made comments concerning scale. He argued the applicant must convince the Tribunal that the principles apply to the development in John Douglas and other matters are not applicable in this case. He argued that in an urban design response the proposed development is not supported because of its relationship to part of the fine grain subdivision pattern and surrounded by small scale buildings. He claimed that rather than the proposed development appearing as a slender tower within a context of higher building forms, this tower will appear as an isolated form from a number of vantage points within the public realm, and will, most noticeably show the back of the building to substantial parts of the public realm.

39. Mr Umbers' clients position was summarised as:

"There is no strategic planning justification for a 28 storey building on the subject site.

* The proposed 28 storey building will have an irreversible negative impact on the well established built form character of Little Lonsdale Street and adjoining lanes.

* The overall scale and form of the building does not respond appropriately to the site context and is more suited to a main street frontage. The rhythm of existing low rise buildings requires a sensitive, well designed building, not one that has been "squeezed" onto the site. The proposed development is insensitive to the built form of adjacent and nearby buildings, in particular, residential dwellings to the west and east and the Wesley Church site to the south. It is completely out of proportion to the existing built form of properties in the neighbourhood.

* The built form, scale, limited tower setbacks and additional traffic will destroy the high amenity, residential ambiance at street level which is a distinctive characteristic of this precinct.

* The proposal will set an inappropriate precedent and benchmark for similar developments in the area. The cumulative effect of such a precedent will further contribute to loss of sunlight, overshadowing of streets and lanes, wind effects and traffic congestion.

40. Mr Pitt on behalf of the Applicant for Review argued that the proposal is an outcome sought by the policy matrix when a proper balance is made, that it is of the highest architectural quality, will cause no detriment to the laneway networks, is an appropriate urban design response to the strategic and built form context, and accordingly the decision of the Council should be set aside and a permit granted. He called evidence from Mr Phillip Borelli, Town Planner, whose evidence stated (in part):

"The Capital City Zone in which this proposal is situated, is recognised in the Planning Scheme as an area where higher. density development is to be encouraged. The application is consistent with this objective and comprises a mix of uses that is also appropriate, as it will add to the supply of affordable housing in a very accessible location and contribute to a vibrant streetscape environment, The streetscape will be greatly enhanced by the removal of the existing motor vehicle repair workshop, the reinstatement of the footpath and the introduction of retail frontages and more people into the area, particularly after business hours. Potential negative effects on the public realm due to building shadows and wind impacts, have been considered in the design process and these will not be significant in my opinion.

The design of the building conforms to the laneway and built form policies set out in considerable detail in the Planning Scheme. These policies do not seek to inhibit high-rise buildings in this part of the CBD. They do, however, seek to encourage a lower level podium that respects the streetscape scale with a setback provided for higher tower elements and this approach has been adopted.

The development will not have any unreasonable effect on the amenity of nearby residential properties, bearing in mind that amenity in the Capital City Zone is substantially different from amenity in a residential zone and that Rescode standards do not apply to land in this zone or to multi-level buildings. In addition, I am satisfied that the amenity of the apartments proposed in the development is adequate, particularly in relation to daylight access and open space."

41. Mr Pitt also called evidence from Mr Stephen Axford, Urban Designer:

"It is the professional view of the author that the proposed development fits reasonably within its context. The podium treatment will provide an effective pedestrian focus and will contribute to the liveliness of the street environment, with opportunity for the retail outlets to develop individual character. It is critical that the design detail of the retail frontages is of a sufficiently high quality to respond to the existing complex character of the area.

The proposed tower will generally be seen within the context of other existing towers, especially from the middle distance such as from LaTrobe Street or Lonsdale Street, and does not significantly impact the Wesley Church.

The tower will have most of its impact from approximately mid way along Little Lonsdale Street approaching from the West and when viewed from Bennetts Lane. However the additional impact of the upper floors of the tower are not great.

The alternative of a shorter tower would make no significant difference to impacts provided that a properly designed podium is provided. The other logical alternative of a mid rise development raising ten or more levels direct from the street would provide less of a human scale at the pedestrian level."

42. Mr Pitt called Mr Yurie Tyblewych, Urban Design whose opinion in summary was that the proposal:

* Is appropriate in the broader "Capital Cities" context.

* At a local context, the proposal will improve the pedestrian and streetscape experience.

* That the ability to see the building in the precinct does not have any direct visual impact on the established urban composition.

* The proposed tower does not affect any key views of the city skyline.

* Achieves the desired balance between existing context and new architectural expression.

43. In dealing with the architecture of the building, including materials and finishes, Mr Pitt relied on the evidence of Mr Ivan Rijavec who claimed in paragraph 2.6:

"In this context the proposed building forges a link to both the lowest scale buildings west of Exploration Lane and to the increased scale of buildings to the north and east. The physical model demonstrates how this proposal completes the gradual progression in height between the Australia Post building and the Regency Towers apartments."

and later in Section 3.0 of his witness statement Mr Rijavec stated

"In summary, this proposal is a quality contemporary design, that knits well into the subject precinct. The proposal distinguishes itself by way of its material of construction and by the introduction of new building elements that incorporate ESD solutions and therefore set positive precedents for the future."

44. Having regard to the policy matrix which guides decision making in the Melbourne Planning Scheme, we are satisfied that this proposal successfully responds to its CBD context at the eastern end (or eastern hill sector) of the Central Activities District. We are satisfied that it has properly responded to State and Local Planning Policy, Melbourne 2030 and the relevant specific Decision Guidelines contained within the Melbourne Planning Scheme. In particular the additional population and activity associated with the use of the proposed building is likely to add to the vibrancy of the east end of the CBD.

45. We see the issue of the proposed project as principally one of urban design and more particularly whether the building is too high in its CBD context.

46. We are satisfied that the proposed development has made appropriate reference to the valued elements of the City's character including the "Hoddle Grid" with its hierarchy of streets, lanes, arcades and intricate subdivision pattern. We are satisfied that the placement of podium at the lower level of the building is a legitimate design treatment on this site and it will not only assist to maintain the orderly structure of the Hoddle Grid, but in some respects it will enhance the relationship of the streets and lanes and improve pedestrian amenity particularly along Little Lonsdale Street.

47. The proposed building will introduce an active interface at ground level which provides architectural interest and in some respects will fill in a gap in the Little Lonsdale streetscape that currently exists and the tower will add to the diverse interest of the CBD skyline. Accordingly we are satisfied that it meets the relevant objectives of Clause 22.01 of creating and enhancing public spaces within the city.

48. We are satisfied that the objectives of Section 1.0 of Clause 22.01- Public Spaces - Internal and External, have been met. We consider the podium is an appropriate urban design treatment particularly with regard to the scale of it in the Little Lonsdale Street streetscape and we are satisfied it will make a contribution to the functionality and diversity of the City's pedestrian network.

49. We are satisfied that the proposed active frontage along both Little Lonsdale Street and Exploration Lane complements, and to some extent, enhances the lane network and therefore satisfies the objectives of Section 2.0 of Clause 21.01-Circulation Lanes through Block Arcades an Links. It provides for and maintains the primary role that Exploration Lane serves as a pedestrian and vehicular thoroughfare, takes advantage of Evans Lane for primary vehicular access and reduces potential vehicular/pedestrian conflicts at the Little Lonsdale Street alignment by the deletion of existing crossovers. Exploration Lane is nominated as a Category A lane. The specific performance guideline in Clause 22.01 about such lanes is met because Exploration lane will be retained, and if anything the ground level interface will be enhanced. We also note the provision of an active frontage for small retail commercial activities was not criticised by any party as it clearly met that objective in the Planning Scheme. We are therefore satisfied that the proposed building reinforces the public role of the lanes, and in many ways provides safer pedestrian routes.

50. From our observation Exploration Lane does not appear in the main to have a residential character. It seems to serve as a pedestrian/vehicular access link and much of the recent built form seems to have given little regard to providing active street frontages and visual interest. This treatment is in contrast with the Bennetts Lane streetscape which seems to have maintained a human scale where there is greater emphasis on direct interaction with the street. The contrast in intimacy between the two streetscapes was quite noticeable.

51. We note proposed Tower above the podium does not meet the nominated performance Guideline setbacks for major streets in Section 3- Building Design however that particular guideline is silent about podium setbacks on "Little" streets. On the other hand there is a more general guideline in the same section allowing a podium height to be different to the nominated 35 and 40 metre height where a different dominant parapet height exists or where there is a need to provide a context to a Heritage building, or to emphasise a street corner. This section seems more relevant to major street abuttals but it may also point to a lack of specific policy attention to the Little Streets.

52. We also note that one of the Design principles (rather that a Performance Guideline) for - Microclimate - Wind Protection of Streets has not been met but the Performance Guideline attributed to that principle requires the use of secondary building elements to attenuate existing or expected detrimental wind effects of the proposed building. In his written and oral evidence Mr Rijavec explained to our satisfaction how the combined effect of the metal fabric screens that span between the projecting balconies will assist to modulate the effect of wind on pedestrian areas and we agree with his conclusion that a standard condition providing for full detailed wind tests will be appropriate at final design stage before commencement of the development.

53. We also consider it appropriate to remark on the Council's insistence that a building of 8 to 10 storeys of a cuboid shape would be a far better urban design response in this location having regard to the "emerging" character of the inner portion of this city block bounded by Russell, Exhibition, Latrobe and Lonsdale Streets. In this regard we note there is only one 10 storey residential apartment building being developed at 158 Little Lonsdale Street and another 9 level car park building near it to satisfy the claim that this is the "emerging" character of this inner portion of the city block. We also note that in recent years there have been a number of 7 to 10 storey buildings approved in the vicinity of Bennetts Lane although they have not been developed.

54. Whilst Mr Dickson gave considerable attention to the existing planning policy framework we had difficulty coming to the same conclusion as him that a 10 storey building would be a more appropriate built form than the proposed 4 storey podium level and tower treatment above. We note with interest that Mr Czarny seemed to come to a different view about the Exploration Lane abuttal, when he suggested it should be 7 to 8 stories rising up to about 10 storeys at the intersection of Exploration Lane and Little Lonsdale Street.

55. We see no specific design guidelines or policy reference directing this specific height or built form and therefore, we have had some difficulty coming to terms with this suggested height and built form per se. We see the "defacto" 8 - 10 storey height limit as somewhat obscure particularly having regard to the built form on land to the east of Exploration Lane and Jones Lane and accordingly we have doubts that a 10 storey cuboid as preferred by the Responsible Authority is a superior response to the objectives in Clause 22.01.

56. From our understanding of the various suggested design responses and having regard to the different interpretations of the character influences and the lack of any specific policy attention to the Little Streets we conclude that there can be various design responses in this CBD location and therefore we are guided by the broader directions in the objectives to Clause 22.01 of the Planning Scheme.

57. We agree with Mr Tyblewych's summation of the site and locality. The environs of the site has robust, diverse character with some fine grained features on Little Lonsdale but nevertheless within the context of some much larger buildings at this eastern end of the CBD.

58. There are largely three vantage points to view a full or predominant extent of the tower, these being:

* From the east along Little Lonsdale Street, east of Exhibition Street, which in our view is probably the most exposed area.

* From a position in Lonsdale Street south west of the Wesley Uniting Church site and which is viewed at an oblique angle; and

* From Latrobe Street north west of the subject site.

59. We agree with Mr Tyblewych's evidence that in many respects the tower will form part of the CBD's east end skyline and that in most part a pedestrian's experience will not be substantially interrupted. We note that the building will, in part, be most noticeable along Little Lonsdale Street at a distance of about 100 - 150 metres west of the site. However we are satisfied that most pedestrians' views will be drawn to the podium level and that the upper level facade will be a secondary backdrop when viewed with other tall buildings towards the eastern hill. We therefore agree with both Mr Axford and Mr Tyblewych when they claimed that the proposed building will add to the diversity of the CAD skyline without detracting from it. So in summing up we consider the design has successfully responded to the Local policy and Decision Guidelines by:

* Incorporating a four level podium of human scale with an active frontage to both Little Lonsdale Street and Exploration Lane.

* Placing an elegant slimline tower form back from the edge of the podium with appropriate separation from other high buildings in a respectful manner.

* Is preferable to a squat 8 - 10 storey cuboid as suggested by the Responsible Authority.

60. We consider the treatment of all elevations are vitally important in this development and we are satisfied that the proposed design treatments, finishes, material and colours are an essential ingredient in determining an appropriate design response for this site. While we initially held some concern about the "back end" or eastern view of the building Mr Rijavec's explanation satisfies us that the proposed facade treatment, was a suitable and legitimate response to the proposed building. The combination of different planes, a curved element and textured surfaces described by Mr Rijavec is considered to be far superior to the sterile views of blank or exposed concrete walls that appear on other buildings in the precinct.

61. We are satisfied the proposed tower does not offend the policy direction of Clause 22.02-Sunlight to Public Spaces. We acknowledge there will be some increase in shadowing of Little Lonsdale Street at about 10 am at the equinox, but we have viewed the shadowing in the context that this is not a major public pedestrian thoroughfare. The footpaths are relatively narrow at 1 metre and a 10 storey building, as suggested by the responsible authority would achieve similar shadowing between 11 am and 3pm. We also note the shadowing criteria identified in this clause refers to the impact of the building on the public domain and does not refer to the impact on residential development.

62. We note Mr Umbers raised various issues including overlooking, overshadowing, solar access and loss of daylighting, but we consider it is appropriate to remark that these issues must be examined in the context of a site which has no height limits and is located between a 20 storey office building and a 33 storey residential building in the CAD. We agree with Mr Borelli's summation of the amenity issues raised by resident objectors that residents in this Capital City Zone cannot expect the same type of amenity standards that exist if the development was located in a Residential 1 Zone in the suburbs of Melbourne. This is an area for intense development noting that the Responsible Authority supported a building of 10 stories. We note that the provisions of the Capital City Zone purposefully exempt the usual opportunities for notification and objection so that false expectations about such standards are not raised.

63. We acknowledge that views from various locations such as Bennetts Lane may be altered and there may be some additional sense of being overlooked. However given the context of similar relationships between differing built forms in the CBD context this would seem to be an outcome envisaged in the Planning Scheme provisions site.

64. We also wish to comment on the request from Mr Umbers to provide some commentary on strategic planning directions for the east end of Melbourne. We do not believe it is our role to direct the City of Melbourne or any other responsible authority as to what strategic directions would be appropriate. To do so would misunderstand the role of the Victorian Civil and Administrative Tribunal because the Tribunal's role is to review a decision(or lack of decision) having regard to the relevant provisions of the Planning and Environment Act, the State and Local planning policies and the provisions of the Melbourne Planning Scheme_._ Whilst we may assist the responsible authority, objectors and developers to interpret existing planning controls and policies contained within the scheme, we consider it would be inappropriate and overstepping our role to direct a planning authority to introduce a policy or adopt a specific policy.

65. Whilst we made remarks about a lack of direction about a specific section of the local policy differentiating the little streets from major streets, this may or may not have been a deliberate decision by the planning authority. This may be an isolated dispute about a tower in a "Little" street, and may not have been warranted in the context of all other policy initiatives undertaken by the Council in recent years. However it would be a quantum ( and inappropriate) step for us to suggest there should or should not be specific development controls and/or policies on amenity issues, or suggesting that certain notification provisions should be amended to suit a particular group of landowners. Strategic planning issues require consultation with all relevant stakeholders and are the subject of detailed scrutiny prior to inclusion or otherwise in the Planning Scheme.