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[2006] VCAT 1031
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2006-05-30
Original judgment source is linked above.
Review pursuant to Section 79 failure (PEA); B2Z, Chapel Street Regional Activity Centre; broad policy support for increased density and scale; policy of preferred building height limited to 12 metres; proposal would exceed policy-preferred height by a substantial degree; question of whether preferred-height policy is somewhat stale; urban design issues related to architectural details and form; comparison of podium/tower principle v stand-alone tower.
9-13 Simmons Street and 12 Ellis Street, South Yarra
The order of the Tribunal is that the decision of the Responsible Authority is set aside.
The Responsible Authority is directed under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987 to issue a permit which allows the construction of a seven to twelve storey building with two basement car parking levels to be used as offices, student accommodation, serviced and non-serviced apartments with a reduction in the provision of associated car and bicycle parking on the land at 9-13 Simmons Street and 12 Ellis Street, South Yarra, in accordance with the endorsed plans and subject to the following conditions:-
1 Before the use or development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and three (3) copies provided, substantially in accordance with the plans submitted with the application but modified to show:
(a)
The consolidation of units S311 and S312 and the corresponding units on the first, second and fourth to sixth floors as depicted in Omiros One Architecture plan TP06A dated 13 April 2006 tendered to the Tribunal;
(b)
Amended ground floor and basement plans showing the location of storage units for the permanent apartments as depicted in Omiros One Architecture plans TP01A, TP02A and TP03A dated 13 April 2006 tendered to the Tribunal;
(c)
The provision of bicycle storage facilities at ground floor level as depicted in plan TP03A tendered to the Tribunal;
(d)
A modified treatment of the east facing wall of the 12 storey tower component of the development to provide increased visual interest;
(e)
Modifications to the ground floor façade treatments to both Simmons and Ellis Street to provide windows to these frontages;
(f)
The installation of warning devices at the car park entrance and exit points;
(g)
Screening to prevent opportunities for overlooking between:
(i)
serviced apartments A204 and A207;
(ii)
(iii)
(iv)
S311 and S313 and
(v)
S411 and S413.
(h)
Car park layout as follows:
(i)
aisle width and space dimensions to comply with Planning Scheme Clause 52.06.
(ii)
Headroom clearance to be shown on plan and comply with AS 2890.1-2004.
(iii)
Car park layout requirements, where not specified in the Planning Scheme, to comply with Australian Standard AS 2890.1-2004.
(iv)
Sight distance to comply with AS 2890.1-2004.
(v)
Ramp sections indicating grades, levels and lengths to be provided and comply with AS 2890.1-2004.
2 The use and development and the layout of the uses shown on the endorsed plans must not be altered without the further written consent of the Responsible Authority.
3 Where the following conditions include requirements for the preparation of various types of management plans, such plans may be varied from time to time to the satisfaction of the responsible authority.
4 Plant and equipment on the rooftop shall be screened from view to the satisfaction of the Responsible Authority.
5 All walls on or facing the boundaries of the site must be cleaned and finished to the satisfaction of the Responsible Authority.
6 Any noise emissions from any proposed air conditioning units or other mechanical equipment to comply with the Environment Protection (Residential Noise) Regulations 1997 to the satisfaction of the Responsible Authority.
7 Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.
8 All services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
9 The existing footpath levels must not be lowered or altered in any way unless to the satisfaction of the Responsible Authority.
10 Prior to the commencement of the development or use hereby permitted for the land either:
(a)
A certificate of environmental audit must be issued for the land in accordance with Section 57AA of the Environment Protection Act 1970, or
(b)
An environment auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Section 57AA(5)(b) of the Act that the environmental conditions of the land are suitable for residential use.
Four copies of the certificate of environmental audit and/or statement, complete audit report and audit area plan must be submitted to the Responsible Authority prior to the commencement of the use of the land.
11 Prior to the commencement of the use of the land in accordance with this permit a letter must be submitted to the Responsible Authority prepared by the EPA appointed Environmental Auditor to verify that the conditions of the certificate or statement of environmental audit issued for the land have been satisfied.
12 Before the development starts, a landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be generally in accordance with the landscape plan prepared by Tract Consultants Pty Ltd and comprising drawings numbers MP01 Revision 02, MPO2 Revision 02, and MPO3 Revision 02 all dated 18 April 2006 or otherwise to the satisfaction of the responsible authority. The plan must show:
(a)
Details of the surface finishes of paths and driveways; and
(b)
A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant.
The Landscape Plan may be amended to the satisfaction of the responsible authority.
13 Before the use allowed by this permit starts or by such later date as is approved the landscaping works shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority.
14 The landscaping shown on the approved landscape plan shall be maintained in a proper, tidy and healthy condition to the satisfaction of the Responsible Authority. Should any tree or shrub be removed or destroyed it may be required to be replaced by a tree or shrub of similar size and variety.
15 The Responsible Authority must be advised in writing of the completion of the landscaping so that a site inspection can be carried out.
16 The drainage of the site shall be to the requirements of the Responsible Authority and the discharge of water from the land affected by this permit shall be controlled around its limits to prevent any discharge on to any adjacent property or street other than by means of an underground pipe discharged to a point nominated to the satisfaction of the Responsible Authority.
17 All redundant existing crossings must be removed with footpath, kerb and channel reinstated at the permit holder's cost.
18 Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.
19 Prior to the commencement of works on the site, the landowner shall prepare to the satisfaction of the Responsible Authority a Waste Management Plan for the site to the collection and disposal of garbage and recyclables for the various uses on the site. Once approved, the Waste Management Plan should be endorsed and will then form part of the permit. The Waste Management Plan must provide for:
(a)
the method of collection of garbage and recyclables for the residential apartments and other uses
(b)
designation of methods of collection including the need to provide for private services or utilisation of council services
(c)
appropriate areas of bin storage on site and areas for bin storage on collection days
(d)
measures to minimise the impact upon local amenity of operations such as waste collection, vehicle loading and unloading times and management and maintenance of car parking areas
(e)
litter management.
The Waste Management Plan may be amended from time to time to the satisfaction of the responsible authority.
20 Prior to the commencement of works on the site, the landowner shall prepare to the satisfaction of the Responsible Authority a Student Accommodation Management Plan. Once approved, the Student Accommodation Management Plan should be endorsed and will then form part of the permit. The Student Accommodation Management Plan must provide for the following:
(a)
Employment of a suitably qualified full-time manager or lead tenant who is accommodated on-site
(b)
Provision for at-call contact details to be displayed so they are clearly visible to any person outside the site for response 24 hours a day and seven days a week
(c)
Provision to ensure that the student housing does not cause negative impacts on the amenity of the surrounding area
(d)
Permanent display of the Management Plan in a common area
(e)
The nature and experience of the management of the complex and the contact details of the manager/lead tenant
(f)
The means by which car spaces are to be allocated and a register that documents allocation of these spaces
(g)
House rules regarding occupancy and behaviour of residents and visitors and grievance procedures
(h)
Resolution process for disputes between residents.
The Student Accommodation Plan may be amended to the satisfaction of the responsible authority.
21 Prior to the commencement of the development hereby permitted, the owner of the land must enter into an agreement under Section 173 of the Planning and Environment Act 1987 with the responsible authority to covenant that no person may reside in the student housing unless that person is a full-time student (a student is classified as being full-time when their aggregated student load across all units of study (including work experience in industry units) for all courses undertaken by the student in the reference year is not less than 0.75 EFTSU (Equivalent Full-time Student Unit) or resides there in a supervisory, management or caretaker capacity.
22 Protocols for social activity and community engagement:
(a)
A support framework for students which ensures that tenants have knowledge of and access to care services including health, counseling and cultural contact
(b)
Critical Incident Management and Emergency & Evacuation Procedures
(c)
Maintenance and cleaning schedules
(d)
Management procedures over holiday periods
23 Prior to the commencement of any buildings and works allowed by this permit the owner and/or developer must submit a Construction Management Plan to the satisfaction of the Responsible Authority. Once approved, the Construction Management Plan will be endorsed and will then form part of the permit. The Construction Management Plan must include details on how the construction will be undertaken so it has minimal impact on the environment. Details to be provided in the Construction Management Plan shall include, but are not limited to:
(a)
Full work schedule/construction management plan for each individual stage to ascertain impacts on surrounding properties;
(b)
Public/worker access and safety issues;
(c)
Hours of construction activity (including at what stage "out of hours works" are proposed and what type of works are to be conducted outside the hours of operation;
(d)
The location of hoardings, hoists and workers' amenities;
(e)
The location of public precautions, loading zones, site sheds, materials, cranes and crane/hoisting zones, gantries and any other construction related items or equipment to be located in any street;
(f)
Details as to how traffic and pedestrian safety and amenity will be controlled within the vicinity of the site and its surrounds;
(g)
The provision of a traffic management plan, including detailed plans that show the areas required for and the nature of items to be placed on any street during all stages of construction in accordance with approval by the responsible Building Surveyor, entry and exit points for construction vehicles (including temporary and permanent vehicle crossings), traffic management during construction including road closures/road occupation/footpath closures, work zones/construction zones to accommodate vehicles and deliveries;
(h)
Service connections/road and footpath openings and anticipated impact on public land during the connection of different services;
(i)
Measures to be used to protect Council infrastructure from damage;
(j)
Existing services and environmental management;
(k)
A list of all environmental hazards that the activities on-site pose i.e.; contaminated soil, materials and waste, dust, stormwater contamination from run-off and wash-waters, sediment from the site on roads, construction noise, hours of operation, vibration, washing of concrete trucks and other vehicles and machinery, spillage from refuelling cranes and other vehicles and machinery etc;
(l)
Protection measures that will be undertaken to minimise the risk of the above hazards being realised;
(m)
Regular monitoring/inspections of the above protection measures;
(n)
Identification as to who will be responsible for managing all of the above issues; and
(o)
Anticipated staging of the development.
24 All activities associated with the construction of the buildings and works hereby permitted must be carried out in accordance with the approved Construction Management Plan. The Construction Management Plan may be amended to the satisfaction of the responsible authority.
25 Prior to the commencement of any use, a Parking Management Plan must be submitted to the satisfaction of the Responsible Authority detailing signage, line markings, the overall operation of the car park, safety mechanisms and allocation of car spaces to that use to the satisfaction of the Responsible Authority; matters to be addressed include any limits on fees that may be charged for the use of parking or bicycle storage and if there is any provision for spaces to be leased or made available to persons not working or residing on the premises and like matters relating to the availability of and barriers to the use of such spaces. Such Parking Management Plan may be amended to the satisfaction of the responsible authority.
26 Prior to the commencement of the development hereby permitted, the owner of the land must enter into an agreement under Section 173 of the Planning and Environment Act 1987 with the responsible authority to covenant that it will:
•
Maintain the condition of the buildings and works overhanging the public land to the satisfaction of the responsible authority
•
Ensure that a Public Liability Insurance Policy is entered into to the value of not less than $10 million. The Insurance Policy must stipulate that the policy covers public footpath areas adjacent to the buildings and works. Evidence of this Policy must be provided to the satisfaction of the responsible authority upon completion of the works hereby permitted and on or before each anniversary of that date.
The full cost of preparing, checking and approving such agreement must be met by the owner.
27 Pollution and sediment laden runoff shall not be discharged directly or indirectly into Melbourne Water's drains or waterways during the construction of development works.
28 Unless otherwise agreed in writing by Melbourne Water, finished floor levels must be a minimum of 300mm above the applicable flood level.
29 The entry/exit driveway of the basement car park must incorporate a flood proof apex a minimum of 300mm above the applicable flood level.
30 A bund wall to a minimum of 300mm above the applicable flood level is to be constructed along the driveway to prevent flood waters entering the basement car park.
31 The drainage system is to be constructed so that external flooding above the height of the applicable flood level is unable to penetrate the basement area.
32 All vents, staircases, etc are to be flood proofed to a minimum of 300mm above the applicable flood level to ensure no flood water inlets to floor levels below the applicable flood level.
33 This permit will expire if one of the following circumstances applies:
(a)
The development is not commenced within three years of the date of this permit; and
(b)
The development is not completed within five years of the date of this permit.
The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.
Mr. Jeremy Gobbo, QC., instructed by Ms. Marita Foley of Deacons lawyers.
Mr. Gobbo called the following persons as expert witnesses. They provided written statements of evidence and were available to the Tribunal for cross-examination:
•
Mr. Tim Biles, town planner, of Message Consultants
•
Mr. Stuart McGurn of Fulcrum Town Planners
•
Mr. Russell Symons of Ratio Consultants
•
Mr. Michael Stokes, landscape architect, of Tract Consultants
During the course of the hearing, Mr. Gobbo also called the project's architect, Mr. Emmanouilides Omiros, who was available for cross-examination.
Mr. Nick Tweedie, barrister, instructed by Ms. Roz Hansen, town planner, of Hansen Partnership.
Mr. Tweedie called Ms. Hansen as expert witness. She provided written statements of evidence and was available for cross-examination.
FOLLOWING THE HEARING, I INSPECTED THE SUBJECT SITE AND ITS LOCALITY.
This is a review of Stonnington Council's failure to grant a permit for the construction of a part 7, part 8 and part 12 storey building that would be used for student accommodation, serviced and non-serviced apartments. The site, of about 1,770m2, is situated in an industrial area immediately north of a site containing two 12-storey Y-blocks of flats built by the (then) Housing Commission of Victoria and immediately east of the lots fronting the eastern side of Chapel Street, between Toorak Road and Malvern Road. The 12-storey portion of the proposed building would be on the southern side of the site - closest to the HCV buildings.
The proposed architectural style of the building is very post-modern, using a variety of materials and details to a produce somewhat fragmented pattern to the elevations of the building.
The key issues related to urban design - the building's height and its architectural details.
Council's policies proposed a 12m height limit for the site and its locality - i.e. about 4 storeys. However, this policy had been formulated many years ago and had, in other reviews, been acknowledged to be stale. Council is presently reviewing its urban design policies for the Chapel Street area, but this process is in its early stages and the published analysis provides only limited guidance as to the possible policy outcome.
Both Council's and the proponent's expert urban design witnesses agreed that a 12-storey building could be appropriate on this site, depending on its design.
Another issue that was relevant, given the building's proposed height, was its architectural form, in particular whether such a tall building should be designed using the idiom of a tower atop a podium, or whether the facades could rise directly from the ground floor without some major articulation between lower and upper levels. Council's expert urban design witness favoured the former approach; the proponent's expert considered that the proposed design based on the latter concept is acceptable in the context of this site.
The Tribunal considered that with respect to the building's height, it should not give any weight to Council's current urban design policy. On the basis of expert evidence, the Tribunal concluded that a 12-storey building on part of the site would in principle be acceptable.
With respect to the building's specific design, the Tribunal also concluded that the podium-tower design concept is no more appropriate for this site than the alternative that is proposed here.
1 Application under S.79 of the Planning and Environment Act 1987 for review of the failure to grant a permit within the prescribed time to construct a seven to twelve storey building and two basement car parking levels for use as offices, student accommodation, serviced dwellings and non-serviced dwellings and with dispensation for a part of the required car and bicycle parking.
2 Subsequent to the application for review being lodged, Council determined that it would have refused the permit on the following grounds:
•
The proposed building height, building envelope, setbacks and building massing are excessive and do not respect the existing or evolving neighbourhood character.
•
The proposal does not comply with the objectives or policy content of Clause 22.02 (Urban Design) of the Stonnington Planning Scheme.
•
The proposal does not adequately respond to the requirements of Clause 19.03 (Design and Built form) of the Stonnington Planning Scheme or the requirements of the Design Guidelines for Higher Density Residential Development (Department of Sustainability and Environment 2004) included as part of Clause 19.03.
• The proposal results in a poor level of internal amenity for future occupants.
• The proposal provides an insufficient level of on-site car parking for people working and residing in the building and for visitors.
• The proposal results in an unsatisfactory outcome with regard to bicycle parking.
• The size of the waste storage areas are (sic) insufficient with regard to anticipated demand.
• The proposal does not demonstrate a satisfactory outcome with regard to access for people with limited mobility.
• The proposal unreasonably impacts on amenity levels on land to the south of the site.
• The proposal does not incorporate any landscaped/open space areas with an interface to the public realm.
3 The site is affected by the following zones and overlays:
•
Business 2 Zone
•
Environmental Audit Overlay and Special Building Overlay
4 A permit is required for the following reasons:
•
To use land for accommodation (residential building and dwellings) - Clause 34.02 (Business 2 Zone)
•
To construct a building or carry out works - Clause 34.02
•
To construct a building or carry out works - Clause 44.05 (Special Buildings Overlay)
•
To provide less parking than required - Clause 52.06
•
To provide less bicycle parking than required - Clause 52.34.
5 The subject land is situated on the eastern side of Bray Street, South Yarra, and is bounded to its north by Ellis Street, on its south by Simmons Street, with frontages to these streets of, respectively, about 68m, 22m and 32m. The site's area is 1,767m2.
6 The site is presently occupied by single-storeyed industrial buildings. It is effectively flat and contains no significant vegetation.
7 The site consists of two titles and, while its abuttal to the three streets creates a regular shape to these aspects, the eastern boundary describes a series of geometric setbacks, with the southern frontage being over twice that of the northern frontage.
8 I have adopted part of Mr. McGuren's description of the site's locality as appropriate:
The area surrounding the subject site contains a range of land uses, building types and lot sizes. The area's character is influenced by its location to the 'rear' of the commercial strip along Chapel Street and within a pocket of small scale industrial and commercial uses that lie between the Jam Factory retail and leisure development further north and the imposing Department of Housing flats south of Simmons Street. More particularly the area surrounding the site can be described as follows:
To the north, land between Ellis and Wilson Streets and through to Garden Street is in predominantly small scale industrial or commercial use including a number of workshops. Buildings are generally finished in painted or untreated brick or render and of one or two storey scale, with significantly taller buildings to the north of Garden Street at the Jam Factory.
To the south land across Simmons Street is in residential use in the form of a Department of Housing complex including two large multi-storey blocks of flats which rise to thirteen storeys, which are located on Bray Street, and lower scale three to five storey flats further to the east at Simmons Court and Browning Walk. The high-rise blocks towards the [west] of the site have angled setbacks from both street boundaries, with landscaping and car parking occupying these areas. South of these flats is Malvern Road, which runs east-west (and incorporates a tram route) and connects with the Commercial Road retail strip west of Chapel Street.
To the west across Bray Street are the rears (sic) of commercial and retail properties that front onto Chapel Street. The interface of these properties with Bray Street is characterised by high fences and roller doors which give access to courtyard areas. Buildings on the eastern side of Chapel Street are generally of Victorian or Edwardian origin and two-storey height, with various single and double storey rear additions visible from Bray Street, but with the majority of the built form setback from this street.
To the east in the block between Ellis and Simmons Streets are further small scale industrial and commercial operations including workshops and clothing manufacturers with building heights in the one to three-storey range. Further east is a public park known as Dye Works Park at the corner of Simmons and Palfreyman Street. Land to the east of Palfreyman Street is generally in residential use.
The subject site benefits from excellent access to public transport, shops, services and amenities. Hawksburn, South Yarra and Prahran railway stations are all within walking distance as are tram routes along Chapel Street and Commercial Road/Malvern Road. An extensive range of retail and leisure opportunities exist along Chapel Street as well as community facilities and local services, including the Town Hall.
The site is also in close proximity to Swinburne University's Prahran Campus, which is approximately 600 metres south of the site at High Street and Chapel Street. Formal and informal recreation faculties are available in the area, including the municipal recreation and swimming centre on Malvern Road and the local Dye Works Park to the east along Simmons Street.
9 The proposal consists of a 7-8 storey building over the northern two-thirds of the site (generally 7 storeys, but with a conference and recreation area on part of the 8th level), rising to a 12 storeyed block over the southern third. In addition, an area of landscaped garden is provided at the first-floor level, on the eastern side of the building. This garden is located so that appears to be excised from the lower block and abuts the north face of the 12-storey section of building.
10 The proposal includes the following uses:
•
Two levels of basement parking, accessed off Ellis Street, together with a further area of ground-level car parking which is accessed off Simmons Street - providing a total parking provision of 133 spaces
•
At ground level, three separate areas of office fronting onto Bray Street, containing about 1,000m2 of floor space
•
Above the ground floor, the building will contain the following uses:
− 84 student flats
− 118 serviced apartments
− 30 non-serviced apartments
− a conference facility and recreation rooms on the roof of the lower section of building.
11 The building would be constructed to all site boundaries. The proposed architectural style is highly contemporary, using a variety of materials and colours, projecting wings balconies and awnings, together with some strong sculptural elements.
12 Relevant planning policies identified by the various parties include the following (with Tribunal's emphasis on the most important of these):
•
Clause 12 and Melbourne 2030, together with other relevant clauses of the SPPF
•
LPPF strategies, in particular Clauses 21.01, 21.02, 21.03 Vision for the City of Stonnington, 21.05 Urban Environment and Character, Clause 21.07 Housing Choice and Diversity, Clause 21.08 Residential Areas Character and Amenity, Clause 21.09 Retailing Areas Viability, Clause 21.10 identify of Commercial Areas.
•
LPPF policies, in particular Clause 22.02 Urban Design, Clause 22.05 Residential Development in Commercial Areas, 22.08 Residential Character and Amenity, Clause 22.12 Traffic, Clause 22.13 Parking.
13 Other relevant documents include Council's Chapel Vision Structure Plan - Draft Issues & Opportunities Paper (March 2006).
Council's Consideration of the Permit Application
14 The application was referred to a number of Council's technical officers, with the following significant points being made:
•
Council's engineers considered that the provision of car parking would be insufficient (a shortfall of 19 spaces), no bicycle parking is to be provided and there are deficiencies in the design of the parking layout and access-ways
•
Council's urban designer was supportive of a number of aspects of the design, but was also critical of a number of aspects, noting the following:
− Two vehicular entries - which would produce blank sections of elevation at ground level
− The desirability of opening up the northern and southern frontages at ground level
− The abuttal of the taller sections of building to the site's boundaries, rather than being set back above the 4th level
− The proposed 12 storey section being too tall - with a suggestion that there should be at least a 2-storeyed height difference (i.e. a reduction in height) from the adjoining Housing Commission flats to the south
− The proposed 8 storey section being too tall - as it would not provide an appropriate transition to the existing lower-scale buildings around it, with a preference to match the "emerging character of 4-5 storey building (sic) around Wilson Street".
15 Council's urban designer made a number of comments relating to the architectural style and grain of detail but I have found these difficult to interpret, due to some confusion of grammar and terminology.
16 The application was referred to Melbourne Water and the National Trust of Australia (Vic), neither of which objected, though Melbourne Water required a number of conditions to be included in any permit.
17 While there are a number of detailed matters that must be addressed in this Review, the over-riding issue is that of the proposed building's urban design features and, in particular:
•
Its height on its frontages to Ellis Street (7 storeys) and Simmons Street (12 storeys)
•
The lack of design structure based on the podium/tower design principle
•
Its highly articulated, even flamboyant, style of architecture.
•
Reduction in the provision of parking for cars and bicycles
•
Affect on the amenity of adjoining sites
•
The provision of appropriate internal amenity for the future residents of the development
•
Particular design features, such as the 1st floor outdoor patio.
19 There was agreement between the parties at the hearing with respect to the following matters:
•
The subject land is suitable for redevelopment at a higher density and scale than its existing development and that this is supported, in principle, by Council's policies
•
The proposed uses are appropriate to the Business 2 Zone and are supported by state and local policies.
20 Policies and studies relevant to my consideration of the scale of this proposed development include in particular the guidance provided by Clause 22.02 and Council's current study Chapel Vision Structure Plan - Draft Issues & Opportunities Paper (March 2006).
21 Clause 22.02 Urban Design Policy encourages, as its policy basis,
all new development to generally respect the one to two storey built form character of the City in residential areas and most commercial areas ....
higher scale development to particular land designated on the Strategic Framework Plan, generally land:
•
With a frontage to a Road Zone (category 1).
•
Within commercial centres in the group 1 category of the centres hierarchy.
23 After setting out its general policy provisions, Clause 22.02 includes specific provisions relating to development in the commercial centres in the group 1 category (i.e. which include Chapel Street). This section of the policy sets out preferred building heights in different areas of the Chapel Street precinct and matters to be considered if higher buildings are proposed. I have quoted below from the policy (excluding irrelevant sections and with the Tribunal's emphasis).
Development in the Chapel Street, Toorak Road commercial centre not exceed the preferred height or setback defined on Map 1: Chapel Street and Toorak Road Precincts. If the preferred height or setback is exceeded, the applicant is to demonstrate satisfactorily that the development:
•
Is compatible with and respectful of the scale and character of existing buildings and the area.
•
....................
•
....................
•
Achieves a pleasing physical environment, including pedestrian and shopper safety and amenity, by encouraging a high standard of architecture, urban design and streetscape works.
•
Accommodates uses that are specifically encouraged in the area, and in particular, residential uses on upper floors.
•
Meets all relevant requirements within the zone and overlay.
24 All experts supported the view that Council's study Chapel Vision Structure Plan - Draft Issues & Opportunities Paper (March 2006) represented only a preliminary stage in the process of formulating a new urban design policy for this activity centre. However, they all turned to it for its "useful existing conditions analysis" (Roz Hansen, p12). This study contains the following analysis as relevant to the subject site:
•
Diagram 9 - Ownership: Opportunities identifies the area containing the subject site with the note "Encourage consolidation and create connections"
•
Diagram 11 -- Built Form & Density: Opportunities identifies the southern portion of the subject site for development of 3-5 storeys while the northern portion is identified as 6-8 storeys.
•
Diagram 12 - Managing Change: Opportunities, the site is located in an area 6 Jam Factory Environs, which is indicated as "Opportunity for mixed use redevelopment of 3-8 storeys and upgrade street with park environs"
•
Diagram 16 - Precinct 2: Prahran (Central) Key Change Areas, the subject site is identified as being in the Jam Factory Mixed Use Precinct, which is designated as "Redevelopment Opportunities".
25 This report accompanies each of its diagrams with a brief, half-page commentary under the headings of 'issues' and 'opportunities' but with no or little explanation as to how the observations or suggestions on the maps have been reached and with no suggestion that there has been any serious analysis of, in the case of building heights, alternative urban design outcomes.
26 The other matter that Mr. Gobbo raised and Mr. Tweedie discussed was the question of whether Council's current Clause 22.02 policy might be, or be becoming, stale and, in any case, what weight I should give to it.
27 In Michael Yates & Co Pty Ltd v Stonnington CC [2004] VCAT 637 (8 April 2004), the Tribunal noted as follows, referring to the provisions of Map 1 in Clause 22.02 as they relate to a more northerly, Forest Hill precinct of the Chapel Street activity centre:
41 It is common ground between the Responsible Authority and Applicant that the height and setback provisions are based on strategic research that was undertaken more than 15 years ago, and closer to 20 years ago, as discussed in a report prepared by an Advisory Committee appointed to consider several matters in relation to a proposal to develop land at No. 10 Claremont Street for an 11 storey building (August 2002). The Advisory Committee referred to the "very stale strategic foundation" of the current Scheme provisions (at page 23).
28 Subsequently, Council has prepared a new set of policies for the area containing 10 Claremont Street and these are now incorporated in the planning scheme (the Forest Hill Precinct Policy - Clause 22.17). These policies envisage buildings exceeding 16 storeys on some sites
29 The actions that Council is taking in preparing a new strategy for the Chapel Street Activity Centre, as demonstrated by its commissioning of the study Chapel Vision Structure Plan is evidence of Council's acceptance that its current policies for urban design in this centre are no longer the most appropriate.
30 While Council's officers' report had criticised the building's height and recommended that development on this site should be limited to 4-5 storeys, Council's submission and all expert witnesses, including Ms. Hansen, did not support this position.
31 While Ms. Hansen was critical of a number of features of the building, including in particular its height, design typology and architectural details, she observed during cross-examination that she was "not saying no to a 12-storey building on this site", that she considered that a 12-storey building could be appropriate but that it would require a very carefully considered architectural design.
32 Specific features of the design that Ms. Hansen criticised included the basic design philosophy of the building and the architectural style.
33 From Ms. Hansen's and Mr. Biles' evidence, it is clear that they each support alternative design philosophies as appropriate to this site. I have categorised these as follows:
•
The tower and podium concept: i.e. a lower-level podium to the site's boundaries - say about 3 storeys in height - with the taller structure set back from the site's boundaries to create something of a tower effect; with this concept, the podiums of buildings on adjoining sites would abut, but the tower-sections would be free-standing.
•
The straight-up concept: with the building rising directly from whatever ground-level setbacks are proposed (if any), with the lower levels designed to reflect street-level design principles and using whatever transition to the architectural treatment of higher levels the designer considers appropriate.
34 The former concept is exemplified by the urban design controls for the West Melbourne that can be found in the Design and Development Overlay 33 (Melbourne Planning Scheme) and which were refined in the exhibited version of Amendment C96. It is also identified in Guidelines for Higher Density Residential Development, which identifies a number of benefits of this architectural form, including mitigating amenity problems that could affect adjoining sites (shading, overlooking, wind effects), providing a pedestrian-related scale, mitigating canyon-like effects, and also the policies of the Forest Hill Precinct. The latter concept is also widely demonstrated throughout the higher-density central metropolitan areas. Examples include the tower blocks of Corbusier, the adjoining HCV residential blocks themselves and many of the earlier tower buildings in central Melbourne.
35 In the circumstances of the evidence presented to me and Council's actions to replace parts of and review the balance of the present Clause 22.02 policies (respectively the Forest Hill Precinct and the current urban design study), I conclude that the existing height controls of Clause 22.02 as applicable to this precinct are now stale and do not provide useful guidance as to the appropriate future form of development, either in the site's locality or for the site itself.
36 The question then is whether this particular proposal is acceptable, having regard to the site's context and the building's particular design. It is clear that the site's locality will undergo change - all the policies and current studies strongly support the Chapel Street area as one that will be subject to change. The present urban design study certainly provides a focus on this site's locality as appropriate for a higher degree of change as most other areas.
37 On that basis, there is no value in taking much account of the established neighbourhood character in the area of semi-industrial development, as this is the area most likely to experience the greatest degree of change in the Chapel Street Activity Centre (led only be the changes forecast for the Forest Hill Precinct). And because there are no urban design policies relating to future change to which I can give any weight, there is no policy guidance as to the likely emerging urban form for the site's locality.
38 Mr. Biles and Ms. Hansen agreed on a number of aspects of the design, or referred to matters that could, in my view, be readily addressed by readily feasible design changes, in particular:
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The appropriateness of the 'active' frontage treatment and landscaping proposed for Bray Street
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The absence of any significant amenity disbenefits to adjoining properties or the public realm
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The desirability and feasibility of incorporating windows to the northern and southern elevations for the ground-floor office areas.
39 In his analysis of the urban design Mr. Biles concluded that the building would not impact on views from Chapel Street and, from many points where it might be visible, it would act as a visual foil to the existing HCV towers, in particular being slimmer and much more elegant in its architectural design. He considered that the Ellis Street elevation would, with its 7-storey height and narrow width of 21m, would be similar to many buildings in European cities and equally acceptable. He considered the 12-storey section to be appropriate and acceptable in the context of the 12-storey HCV towers immediately opposite.
40 Ms. Hansen, in contrast, took the view that the building's design should be based on the podium and tower typology, with a podium of no more than 3 stories and the higher structure being set back from all title boundaries, so that it would be free-standing on all aspects. (Although Mr. McGurn also referred to this design as complying with the tower and podium typology, I do not consider this to be so and certainly not in the way that I understood Ms. Hansen's to mean). She was critical of the architectural treatment of the facades and sought a much more strongly sculpted building form rather than relying on the finer detail, including balconies and coloured materials, that is proposed. Overall, most of her criticism emanated, one way or the other, from the absence of podium and tower building form and could only be addressed by rewording the design to reflect this concept.
41 Turning to my own consideration of the broad urban design issues, I conclude that, in terms of its impact on views from Chapel Street, the 12-storey height is acceptable. Where occasionally visible, the HCV flats provide a broad and dominant, if distant, backdrop. I consider that the introduction of another building of related height in front of or adjoining this view would have minimal effect on anyone's enjoyment of the scene. There are a number of other high buildings that can be seen in distant views and another would make little or no difference. The same can be said, but perhaps more so, in respect to the southerly views from further north along Bray Street, from where the HCV flats provide a particularly dominant backdrop. A narrow building of similar height would, in my view, not be out of place in such a setting.
42 With respect to the 7-storey elevation to Ellis Street, this is supported by Mr. Biles and the Draft Issues and Opportunities Paper: Chapel Vision Structure Plan suggests 5-8 storeys as being appropriate on this frontage. Ms. Hansen's principal concern appeared to be the absence of a podium which, in respect to the Ellis Street frontage and the existing building scale, she concluded should be limited to 3-storeys. In effect, the principle difference of opinion relates to building form, not building height.
43 With respect to the 12-storey southern section, Mr. Biles again considered this acceptable in the context of the 12-storey Y-shaped block of the HCV flats. Ms. Hansen envisaged these towers as being separate from the locality which should be considered as forming part of the appropriate context for assessing this proposal. She reached this conclusion on the basis that the HCV towers are a distinctly different urban form and are set apart from other buildings within an extensive, landscaped area, while the other buildings to their north are low rise and built to their site boundaries.
44 There are, inevitable, a number of different but acceptable urban design outcomes that could reasonably be envisaged for this site and its locality, particularly if other imperatives such as development pressures are put aside. These include, as two variations:
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The HCV towers remaining as the sole tall buildings in the area, rising above a townscape of consistently low buildings (which might be limited to anywhere between 2 and 5-storeys)
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The HCV towers set amongst a scatter of other tall buildings close by, with those at the edges of this collection stepping down in height to their lower-rise surroundings - with variations based on whether tall buildings are designed as towers over podiums or with simple, less-differentiated forms.
45 I find it difficult to conclude that either of these principal design concepts is intrinsically better than the other; likewise for the wide range variations within or between either. As countless Tribunal hearings and much research have amply demonstrated, people are generally most fond of those patterns with which they have become most familiar, though these can objectively vary widely, and what might have been abhorred in its conception can, with the passage of time, become a treasured icon (e.g. the Eiffel Tower, as one well-known example).
46 In other words, this is an area where change is broadly envisaged by Council's policies but it could be guided to create a range of different patterns of urban form, many of which would prove equally acceptable. It seems to me that in these circumstances, any coherent and rational urban design policy for this area, if fulfilled, would likely be acceptable as any other as long as the details of each building's fit with its immediate surroundings are properly considered.
47 From my inspection of the site and review of material submitted, I make the following observations.
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The section of Bray Street adjoining the site is quite wide, while Chapel Street, to its west, contains low-rise buildings, limited to a Victorian 2-storey scale
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On the basis of the existing planning controls affecting Chapel Street, including an extensive area of Heritage Overlay (HO17), together with related Council policies, I conclude that development in Chapel Street in this site's vicinity will remain at the present general height for the foreseeable future
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The open space setting around the HCV flats, to the site's south, provide a sense of openness and space that is to the general benefit of Simmons Street, with substantial eucalypts providing a tall vegetation canopy
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Ellis Street is relatively narrow and provides an interesting contrast to the site's other aspects and has the advantage of being on the site's northern aspect and therefore not subject to any shading from development on this site.
48 In these circumstances, I do not consider that there is any pressing reason for the upper portions of the building to be set back from the street on any of the frontages in terms of amenity to the surrounding area - either viewed more widely or close to the site. Nor do I consider that there is any pressing reason to insist on the use of podium/tower design principles. Ms. Hansen made regular reference to the desirability of a pedestrian-friendly scale of building, presumably on the basis that pedestrians would experience an instinctive negative response to tall buildings close to the street, but would not experience the same negativity when walking close to a 3-storeyed podium with a slightly set-back tower above.
49 Senior Member Liston referred, in another decision[1], to the circumstances whereby a good design solution (e.g. first-floor setbacks for two-storeyed buildings) can degenerate through rote use into a simplistic concept that applied without thought to the merits of alternatives, or even the lack of necessity, thereby ceasing to be a useful tool for ensuring good design. I believe that the same case can apply to uncritical insistence on podium and tower design for tall buildings without due regard to the particular circumstances of each design and its particular context.
50 In this case, I conclude that the building height along the three frontages is acceptable.
51 I also consider that the architect has provided an appropriately detailed treatment of elevation and entries to the ground level. Together with the proposed landscaping and design of the forecourt area within the wider section of Brady Street, this would provide the quality encapsulated in the term "active frontage" and, in total, the ground-floor treatment would provide an appropriately friendly quality for pedestrians on the adjoining footpaths. As a consequence, there is a natural differentiation between the architectural treatment of the ground level and those above it, which are simple elevations to the dwellings behind. This change of the elevation's treatment, reflecting the function of activities at different levels, is emphasised by a quirky, largely horizontal, decorative architectural device around the lower level of the building.
52 I accept the proposal put forward by Mr. McGurn that windows should be included in the northern and southern elevations to provide an outlook from, and a view into, the office areas adjoining these frontages. This will avoid the appearance of blank walls and provide greater visual interest.
53 With respect to the proposed architectural detailing of the upper levels of the building, I consider that this is also acceptable. The architect has adopted a very playful use of colours and materials and details (e.g. balconies) to create a somewhat unorthodox and disaggregated treatment of surfaces, thereby breaking up the simple rectangular form that would otherwise occur. Such repetition as is proposed is, in my view, not the dominant element of the elevations.
54 It may well be that there is an element of early 21st century fashion in this design - only time will reveal this - but I see no reason to criticise a building because its design is very much of its moment, i.e. because it may not be timeless. After all, we gain much delight today from the conservation or preservation of those buildings that best reflect the aesthetics of a bygone era, even one of only a few decades ago - aesthetics that, for the moment, we might also be reluctant to replicate.
55 Council's urban designer and Ms. Hansen specifically criticised the treatment of the eastern walls of the proposed building, in particular the 12-storey section of elevation. This wall would rise above the adjoining building and be seen as a blank end wall - forever waiting the future development of the adjoining site (which it would have encouraged by its existence) or forever remaining bare (because such development on the adjoining site might never be feasible, as that site is much smaller).
56 Ms. Hansen considered the prospect of this bare wall unacceptable and recommended it be set back sufficiently far, at least in part, to allow balconies to return around its ends.
57 Mr. Biles and Mr. McGurn concluded that the 12-storey section of this eastern wall could be rendered acceptable by providing an architecturally interesting treatment to its surface, i.e. some form of colouring or texture that would provide a conscious design element and avoid the impression of an unfinished surface. They concluded that such walls are a sufficiently familiar feature of areas of higher-density development in Melbourne that the general effect (subject to appropriate detailing of the finishes) would be acceptable and that it is not necessary to rely on this wall being concealed by subsequent development of the adjoining site.
58 I accept the conclusions of Mr. Biles and Mr. McGurn. Behind Ms. Hansen's view is the premise that plain walls are unattractive or that tall building's will be unattractive unless all elevations have a generally similar treatment. I do not see why this should follow. The different elevation treatments - windows and balconies to three elevations, a plain though quietly decorative surface on the fourth, would simply reflect the functional aspects of this building's siting. It seems to me that, again, rejection of this outcome may be a reflection of an a priori preference for the free-standing tower as a design response for tall buildings.
59 In conclusion, and as a summary to the above discussion, I accept Mr. Gobbo's submission that, in relation to the section of Clause 22.02 dealing with buildings that would exceed the preferred height, only the first and fourth sub-dot-points of this section of the clause are of possible relevance and in contention. In relation to the first of these, I am satisfied that, although this building would introduce a considerable degree of change, it would nevertheless be compatible with and respectful of the surrounding buildings for the reasons previously discussed. I am also satisfied that it satisfies the fourth sub-dot-point relating to the quality of the physical environment that it would create in its immediate environs.
60 Other matters raised by Council and Ms. Hansen included a number of undesirable features:
n
external effects - shading the open space to the south (on the northern side of the HCV tower), blind ground-floor elevations to the north and south, overlooking of adjoining properties, the adequacy on-site storage of waste and provision of on-site car parking, and
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Internal effects - shading of the first-floor garden area, rooms with low levels of natural lighting, management of the different areas of internal spaces and disabled access, storage for bicycles and other storage facilities.
61 With respect to the car-park entry points, I consider these to be better placed on Ellis and Simmons Streets than Brady and I consider it unreasonable to argue that there should only be one on a site of such size.
62 The proposal development's shading to the south would only fall on landscaped areas of open space around the HCV towers. Apart from some parking bays, these areas are provided as a landscaped relief and setting to the HCV towers. They do not provide for the recreation for their inhabitants. Consequently, there can be little significance in the intermittent shading of these areas.
63 While the proposal would result in some overlooking of adjoining sites, these are principally industrial (at present) and any existing residential uses are so remote that the privacy provisions of Clause 55 (as a useful test) are more than adequately satisfied.
64 Ms. Hansen objected to some proposed balconies and architectural features extending into the public realm (i.e. extending over the footpaths). Leaving aside any legal issues (none were raised at the hearing), I do not see any urban design grounds for objecting. Perhaps Council and Ms. Hansen feel that this device has been used to unfairly enhance the building while optimising its interior spaces. However, I do not consider that view to provide a basis for my decision. Rather, I have to consider whether the outcome would be reasonable in terms of the overall design and any imposition on the public realm.
65 In terms of the proposed building's scale, the intrusions are relatively minor, would provide greater depth to the building's elevation and would not cause any detriment to the appearance, or usability, of the public realm.
66 I accept Mr. Symons conclusion that the car parking provision will be adequate for the proposed type of accommodation, as it has been based on reasonable and extensive research into the parking behaviour of students and other types of resident. The reduction in the number of student dwellings associated with the resolution of some design issues would also reduce the on-site parking demand.
67 Mr. Tweedie cross-examined Mr. Symons relating to his estimates of the parking required for the serviced apartments, in particular the relevance of the research into the parking demand for like accommodation. In this research, those arriving at a building providing serviced accommodation were surveyed as to their mode of arrival. The issue related to whether those in the research-case using such accommodation might collect a car before arriving at the accommodation (as contended by Mr. Symons) or whether they would pick up a car subsequent to arriving at their serviced accommodation (and therefore having been treated as non-car arrivals), but still requiring parking. It seems to me that Mr. Tweedie's hypothesis, if correct, would be likely to apply to only a very limited proportion of cases, given Mr. Symons' reasonable suggestion that travellers would be most likely to pick up a rental car at their port of arrival, rather than their accommodation. I therefore do not put any weight on this suggestion.
68 With respect to bicycle storage, the original plans had made no provision, while amended plans had been prepared which indicated how provision could be made for 18 bike storage lockers and 13 bike-rail spaces. There was some discussion as to whether it was practical for bicycles to be stored in rooms (possibly on balconies) or whether additional storage should be provided in the basements. Mr. Symons expressed the view that, given the value of many bicycles, their owners would not be prepared to leave them exposed in such relatively public places as the basement car parks. The student rooms, on the other hand, are proposed to be very small and are very neatly detailed, so that the most likely storage space would be the balconies (or the window access-way in those rooms with semi-internal bedrooms - see later comment).
69 The removal of 6 student dwellings (as a result of the reconfiguration required for design reasons) would release at least one parking space, which could be converted to use for further bicycle storage (or bulk storage).
70 Ms. Hansen was concerned at the degree of shading of the north-eastern facing, first-floor garden area and proposed that this garden should be relocated to the western face of the building, where it would certainly enjoy greater amounts of sunlight.
71 In my view, we have little understanding of how the types of resident in a building such as this would use such a landscaped garden area, so any conclusions must be somewhat speculative. All we know of this garden area is that it would be principally (or solely) available to the residents of serviced and non-serviced flats. With its presently surrounding development, this garden would have access to reasonable proportions of morning sunlight at the equinox. The affect of any future development of sites to the east is unknown. In the circumstances, although there are some longer-term risks associated with the location of this garden, I accept that it provides a reasonable opportunity, if limited in area, for the recreation of the residents of the proposed serviced and non-serviced dwellings.
72 Both Ms. Hansen and Mr. McGurn expressed concerns about the lack of amenity of a number of dwellings to the western side of the above first-floor garden. The proponents presented modified plans that would remove one dwelling on each level at and above this garden and thereby provide for the balance of adjoining dwellings to be reconfigured. This change would adequately resolve this particular concern. The change can be adequately addressed by way of permit condition. Mr. McGurn was likewise concerned about the privacy of the dwellings adjoining, but slightly lower than, the first-floor garden. I agreed that this matter also should, and can, be adequately dealt with by way of permit condition.
73 One particular design aspect that affects some of the dwellings and student accommodation relates to a design feature that involves placing a second bedroom within the interior of the dwelling, but with a narrow section of that bedroom extending to the external wall, so that it can include a window and obtain natural daylight. This extension of the bedroom involves a section measuring about 1 metre width and with a depth of about 3 metres - in effect, a short passageway to the external wall.
74 The question that was posed during cross-examination related to whether this design feature would create an unacceptable (i.e. dark or gloomy) quality for the inner bedroom. There was also some discussion as to whether and how this narrow space could be used by the room's occupants.
75 The parties accepted that the provision of daylight would satisfy the relevant requirements of the building regulations.
76 The rooms involved are bedrooms, not day-living rooms. Given that this matter is directly controlled by the building regulations, I am loath to make a separate judgement of the acceptability of the amenity of these proposed rooms in this case. I note that the building regulations also provide for bedrooms that receive only indirect (secondary) light across a living room. I consider that the design in this case is more desirable than the accepted borrowed-light concept.
77 Mr. McGurn also criticised the lack of bulk-storage facilities and proposed changes to the parking basements to provide such facilities. I consider his point, and response, appropriate.
78 At the conclusion of the hearing, the parties discussed the draft conditions provided by Council. The following proposals were made:
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Amendments to be made to the first-to-sixth floor plans to overcome problems of amenity, as proposed by Mr. McGurn (supported)
•
The layout of the parking levels to be amended to incorporate solid and bicycle storage, to amend the parking layout, as proposed by Mr. McGurn, or to similar effect and to provide for external bicycle storage (I consider this appropriate)
•
Modifications to the ground level facades to the north and south to include windows, as proposed by Mr. McGurn and a more architecturally interesting façade to the eastern high-rise elevation (I support both of these proposals)
•
Deletion of the requirement for a Section 173 agreement relating to the use of student accommodation by 'full time' students, as requested by Mr. Gobbo. I have supported this request as it seems to me that the condition as drafted would not achieve anything beyond that already provided by an enforceable condition that includes a requirement for an approved management plan for the student accommodation, on which the enforcement of the s. 173 agreement depends in any case.
•
Considering the scale of the project and the considerable amount of further approvals, including various management plans that must be prepared, I consider it reasonable to provide for 3 and 5 year periods for commencement and completion, respectively.
•
Other changes made to correct grammar, avoid tautology or ambiguity and to include appropriate provision for secondary consents to be granted at future dates in order to provide for variations to the design, layout and management of the use and development.
79 For the reasons set out above, I conclude that it is appropriate that a permit be granted and I so order.
[1] Desire Australia Pty Ltd v Boroondara CC & Ors [2005] VCAT 2210 (25 October 2005)
SY Ellis Pty Ltd
Stonnington CC [2006] VCAT 1031