1. The minimum setback of apartment balconies from the eastern boundary must be 4.5 metres and the minimum setback of the tower façade from the eastern boundary must be 5 metres; 2. Pedestrian sightline diagrams as per Figure 2.3 and 3.3 of AS or flashing warning device installed at the exit point to Fawkner Street to alert pedestrians of existing vehicles. Swept path diagrams must demonstrate that vehicles are able to enter/exit the car parking spaces between the ramps and that a car is able to wait clear of the bollards to enable another vehicle to pass. Basement ramp grades to be a maximum of 1:5 as per Australian Standards. Cross -sections must show head clearance on all ramps and details of car park security arrangements must be provided; and

1. Bin store area on ground floor plan amended to the satisfaction of Waste Services Engineering Branch.

3. The Responsible Authority is directed to issue a modified permit in accordance with this order.

37 level high rise tower to an overall height of about 109 metres with 22 metre high podium. Building to be used for retail, office and residential use. Building to be constructed to the west side boundary. Building setback 4.5 - 5 metres off east boundary.

Application under Section 80 of the Planning and Environment Act 1987.

Design and Development Overlay - Schedules 1 (Active Street Frontages Capital City Zone), 27 (City Link Exhaust Stack Environs) and 39 (Southbank Central Interface)

Clauses 11, 11.02-1, 11.04-1, 11.04-4, 11.04-5, 15.01-1, 16.01-1, 17.01-1, 18.01-1, 19, 21.03-1, 21.04-1, 21.05, 21.05-2, 21.05-5, 21.05-6, 21.08-3, 22.01 and 22.02, 52.06, 52.34, 52.35, 52.36, and 65.

Rectangular site with frontage of 20 metres, depth of 45.35 metres and area of about 900 square metres. Currently occupied by single storey building used for commercial purposes.

Site is located in mixed context with high rise high density towers interspersed with low rise buildings on small, fine grain lots.

R N Nominees Pty Ltd and Ors v Melbourne CC and Ors [2010] VCAT 1336 (12 August 2010)

1. Tapil Pty Ltd has been successful in obtaining a planning permit from the Responsible Authority, the City of Melbourne, for the redevelopment of land at 57-61 City Road in Southbank. The permit granted by the Council allows demolition of the existing building and the redevelopment of the land for the purposes of a 37 level building providing for retail premises, offices, dwellings and car parking.
2. This proceeding arises from an application by Tapil against one of the requirements in Condition 1 on the permit. Condition 1 requires that prior to the commencement of demolition or the carrying out of works on the land, plans showing changes to the proposed development are to be submitted to the Council for endorsement. The change required by part (a) in Condition 1 is that minimum side boundary setbacks to the east and west boundaries of 5 metres are to be provided.
3. The development proposal considered by the Council involved a 37 level building comprising 22 metre high podium with a tower element arising to about 109 metres. The east side setback to balconies was proposed at 3.35 metres with the west elevation constructed to the west side boundary.
4. Since the lodgement of the application, Tapil has prepared an amended proposal showing east setbacks increased to 4.5 metres to the balconies and 5 metres to the facade. Mr Townsend advised that the Council regards this change to the proposal as being acceptable and it no longer has concerns with respect to the way that the east setback is managed.
5. Therefore the dispute in this case is limited to whether it is acceptable to construct the west facade to the side boundary or whether it should be set back (5 metres as required under the condition in dispute).
6. The subject site comprises a rectangular lot with a frontage of about 20 metres to the south side of City Road. The lot extends through to the north side of Fawkner Street. It has a depth of 45.35 metres and an area of about 900 square metres. It is occupied by a single storey commercial building.
7. It is noted in Mr Townsend's submission and Mr McGurn's evidence the site sits within a context of larger scale high-rise buildings with high site coverage intermixed with buildings of smaller scale like the building on the site, the four-storey building to the east and the two storey building to the west. Notable tower developments near the site include the Eureka Tower Complex which is located on the north side of City Road, the IBM and the Herald Weekly Times Towers to the north-east and the Century Tower which is located south of the site.
8. Under the Planning Scheme the site is within the Capital City Zone in the area "outside the retail core". It is also affected by the Design and Development Overlay (DDO) with two schedules being applicable. In this case the provisions of Schedule 39 (to the DDO) are those which are relevant to the matters in dispute[1].
9. I refer to the relevant decision guidelines in the Capital City Zone provisions which require that appropriate consideration be given to, amongst other things, the size and shape of the parcel of land to which the application relates and the size and shape of land adjoining the land and adjoining development. They require that consideration be given to the impact on the amenity of existing dwellings and adjacent sites; and where new buildings incorporate dwellings, the design respects and anticipates the development potential of adjacent sites to ensure that future development of those sites does not cause a significant loss of amenity to dwellings on the subject site.
10. The Schedule (39) to the Design and Development Overlay (DDO39) sets out design objectives to be achieved as well as prescriptive requirements with respect to building heights and setbacks. The Council is satisfied that the height and street setbacks requirements are met. With the changes suggested by Tapil, the Council considers the setback to the east is also acceptable.
11. In relation to side setbacks, the minimum building setback is 6 metres for towers up to 40 metres. However, for towers above 40 metres, like that proposed in this case, a setback of 24 metres from an adjoining tower of similar height is required. Although called a 'setback' the requirement relates to a separation distance between towers rather than a setback from the boundary. It is also possible to vary the setback and the height requirements provided that the built form outcomes set out in the Schedule are met. The built form outcome in the Schedule which is particularly relevant in this case is that tower developments be well spaced so that there is an equitable distribution of access to an outlook and sunlight between towers.
12. Under the DDO39 provisions it is possible to have a tower over 40 metres with no side setback. This is subject to there being a 24-metre separation to the nearest tower which, in this case, is the Century Tower to the south. The proposal provides a 21.6 metre setback to this tower. The setback or separation has been approved by the Council under the permit. In doing so, the Council must have been satisfied that built form outcome set out in the Schedule is met.
13. Turning to the matters in dispute, the Council has several concerns about the positioning of the tower on the west boundary. In summary the Council contends that:
    • the absence of a setback will create a semi-detached or continuous built form extending down City Road;
    • the construction of a building on the west boundary would prejudice the development potential of the adjoining site to the west;
    • it is possible to achieve a building with the 5-metre setback sought by the condition on this site;
    • the absence of a setback to the west boundary would result in inappropriate spacing between tower elements thus having an adverse impact on the amenity of the nearby Century Tower, and
    • the west facade presented to the public realm is somewhat unfinished and therefore inappropriate in its appearance.
14. I will deal with each of these matters. In doing so, I think it is necessary to have an understanding of the relationship between the site and its neighbour to the west in order to properly deal with these issues.
15. The neighbouring property to the west is a relatively small 10-metre wide property. It is occupied by a two storey building. The lot is an example of the original fine grain fabric and the subdivision pattern that existed in this inner suburban/inner city area. However as noted by the Tribunal with RN Nominees (Vic) Pty Ltd v Melbourne City Council [2] :

A comprehensive reading of the applicable policy framework leads to the inescapable conclusion that this site is located in an area specifically identified for substantial change in built form and character.

1. The same policy context applies in this case. The question is how this change should be best managed.
2. The DDO and the various decision guidelines in the zone provisions are tools to manage this change. However, they need to be applied having regard to the circumstances at hand.
3. In relation to the Council's first contention, I do not accept that if the property to the west is redeveloped with a building constructed to the common boundary with the site that this would result in a continuous single wall of development along City Road that is feared by the Council. If the property to the west is redeveloped with a wall that is attached or abutting the proposed building, in my view, this would be akin to a form of development created if the adjoining site is consolidated with the subject land. The building footprint created (by the proposed building and a building on the neighbouring property to the west) would be no different to or very similar in term of size and scale to the building footprint of the adjacent Century Towers building.
4. It does not follow that because one proposal for development to the boundary is allowed that all future proposals should also be allowed. It is necessary for each case to be considered on its merits. The spacing between other built forms can be assessed at that time.
5. The redevelopment of the property immediately to the west with a building to the common boundary with the site would not prejudice the outcomes sought by the DDO with respect to the spacing of buildings or the relationship with other towers.
6. In relation to the Council's second contention, I do not accept the proposition that the construction of the wall on the boundary as proposed will compromise the development potential of the site to the west. Rather, it is my conclusion that the provision of a setback would create far greater difficulty for the development of that property. If, for example, a building on the site to the west were required to provide 5-metre side setbacks, this would not leave much of the property left for development.
7. The approach taken, to construct a wall to the common boundary with the neighbouring property, has responded to the immediate "fine grain" nature of the adjacent property and provides an opportunity for the property to be redeveloped.
8. I agree with my colleagues in the RN Nominees. In circumstances where there are small sites and no provisions within the Planning Scheme which actively encourage the consolidation of properties, the provision of sheer walls like the west wall proposed in this case, would, in their words:

"........create the best possible design solution to preserve the opportunity for adjacent land to be developed t an equivalent or similar intensity".

1. The provision of a sheer wall to the boundary, as proposed, creates a virtually unfettered interface with the adjoining property. It provides a great deal of freedom without adversely affecting the amenity of the future residents of the proposed tower.
2. In relation to the Council's third contention, it may be possible to create a narrower building on this site. However, that is not what is before me. A narrower building would inevitably lead to the loss of dwelling yield. That there would be a reduction in yield does not in itself justify approval of the proposal as presented. However, if it is to be reduced, there needs to be good reason. It is necessary to demonstrate that the proposal is inappropriate before the building is reduced taking away from the dwelling yield in an area where high density and high intensity development is clearly contemplated and encouraged. To do so unnecessarily would work against the outcomes sought by the Planning Scheme.
3. The Council's fourth contention concerns the impact on the amenity to the Century Apartments. Although the 24-metre setback (or separation) required under the DDO39 is not met, the Responsible Authority has already granted a permit for a tower on the subject land with a separation of 21.6-metre setback. Even if a 5-metre setback were provided, the separation distance between towers would not change. The separation between towers has already been agreed to. It is not a matter that before me. The issue before me is whether or not there should be space between the proposed building and the neighbouring property to the west.
4. A further point is that the position where the spaces are to be provided is not specified in the planning scheme nor are they predetermined. They can vary depending on the circumstances. I do no accept that the residents of the Century Towers development should expect a space or gap between buildings at a specific point.
5. For example if smaller properties are consolidated, such as the two or three sites immediately to the west of the subject site, the position of where a gap or setback between buildings would be different to if the property immediately to the west is redeveloped on its own.
6. The DDO is seeking to ensure that there are spaces at appropriate points. Those spaces may be created in two ways. One way is by ensuring that development of properties to the west occurs in manageable blocks with spaces to both sides. Alternatively, it must also be remembered that the provisions of the DDO, in terms of the design objectives, contemplate that there will be a mix of both high-rise high-density development which will be intermixed with low-density commercial development. It may well be that the building on the property to the west, a low-level commercial building, will remain. The existence of that building, and the air space above, would provide the space in between the towers. That is the second way to achieve spaces between buildings. It is too rigid to expect that the space between built form elements must be located at existing lot boundaries. Consideration needs to be given to how the built form responds to the particular circumstances at hand. Accordingly, I do not accept that the design compromises the amenity and outlook to the Century Towers given the separation with the proposed tower on the subject site.
7. Finally I turn to the Council's contention that the appearance of the west façade would be inappropriate if the site to the west remains as it is or redeveloped at a low intensity.
8. Mr Townsend describes the proposed west wall as being somewhat "unfinished". I do not agree. The west facade is well designed. The design integrates with the rest of the building. The facade is articulated and includes various colours and glass elements. As noted by Mr McGurn, the glass elements can be covered without compromising the amenity of the proposed building in the event that the property to the west is redeveloped. The west facade would not be unsightly; rather, it would present better than many side facades appurtenant to high-rise buildings.
9. For the above reasons I find that Condition 1(a) should be modified so that the east faced is setback off the boundary, as suggested by the applicant, but with the west facade at the boundary.

[1] The other schedule to the DDO which applies to the land is 27. Schedule 27 concerns the City Link Exhaust Stack Environs. It is of no specific relevance tho the matters in dispute.

[2] [2010] VCAT 1336