Victorian Civil and Administrative Tribunal|1999-07-31|Before: Teac Australia P

Teac Australia PL v Port Phillip CC [1999] VCAT 1222 (31 July 1999)

Policy framework, Premature application, Urban design, High rise development, Area in renewal, Views, Traffic and car parking, Overshadowing, Privacy, Heritage, Architecture

The order of the Tribunal is that this Application for Review is adjourned until the Panel considering Amendment C5 of the Port Phillip Planning Scheme has published its report.

The following persons appeared on their own behalf:

Mr Mathew Townsend, Barrister appeared on behalf of Mr and Mrs Torok and others, Respondent/Objectors. Mr Townsend called Ms Jeanette Bolitho, and Mr Nicholas Vandernol as witnesses in support of his submissions.

Ms Liz McArthur appeared on behalf of the Friends of Port Phillip Foreshore Inc, a Respondent/Objector.

Mr Chris Canavan Q.C with Mr Adrian Finanzio, Barrister instructed by Deacons Graham and James, Solicitors appeared on behalf of Teac Australia Pty Ltd, the Applicant for Review and Permit Applicant. Mr Canavan and Mr Finanzio called Mr Nonda Katsalidis, Architect, Mr Tim Biles, Consultant Town Planner, Mr Russell Symons, Traffic Engineer, and Mr David Whitney, Consultant Town Planner as witnesses in support of their submissions.

The parties and the witnesses in the appeal made both written and verbal submissions and a number of plans, photographs, models and other documents were tendered to the Tribunal. The Tribunal inspected the appeal site and its locality.

The proposal is for the demolition of the six houses and the existing Teac warehouse and showroom building, and the development of a series of inter-connected buildings that range from 2 to 18 storeys and comprise -

* two levels (ground and first floor) of commercial space along the total Bay Street frontage;

* 4 level above-ground car parking for 540 vehicles;

* recreation and open space facilities for internal use, including gymnasium, swimming pool and communal terrace area comprising approximately 1,050 sq. metres.

Port Phillip Planning Scheme/ Mixed Use Zone/ Heritage Overlay/ Environmental Audit Overlay

The Responsible Authority issued a notice of refusal to grant a permit for the following reasons:

1. The proposed development is an overdevelopment of the site, particularly in regard to it's height, bulk and density.

2. The height and scale of the proposed development is out of character with Bay Street and the surrounding area.

3. The proposed development would significantly reduce the amenity of nearby residential properties, particularly in relation to overlooking and overshadowing.

4. The proposed development is contrary to the requirements of the Port Phillip Planning Scheme and Council Policy, particularly in relation to the objectives of Clause 19.03 (Design and Built Form) of the State Planning Policy Framework and the requirements of the ten design principles under Clause 19.03-2, the Mixed Use Zone objectives (Clause 32.04), the Bay Street South Mixed Use Area Policy (Clause 22.04-2) and the Heritage Overlay (Clause 43.01).

5. The proposed development is contrary to the intent of Amendment C5 to the Port Phillip Planning Scheme.

6. The proposed development is not consistent with proper and orderly planning.

1. Our decision in this Application for Review at this time, is to adjourn the application until the Panel considering Amendment C5 of the Port Phillip Planning Scheme has published its report.

2. Primarily we agree with Mr Wright that this Application for Review is premature having regard to the state of urban design policy for this precinct under the Port Phillip Planning Scheme. Our reasons for forming this view are:

* We agree with Mr Whitney in his approach to the consideration of policy in the context of VPP planning schemes. We think the preferred approach is to develop an overall picture of the strategic and policy framework relevant to a particular proposal, and that it is not a correct approach to attempt a clause by clause analysis. This latter approach assumes that the complex layering of strategy and policy which is evident in the Port Phillip Planning Scheme is so coherent that it is amenable to analysis by a close examination of the minutiae of its text. It would be surprising if this complex amalgam of policy developed by different authors over different time periods achieved this degree of coherence. In VPP planning schemes, strategies and policies are more than ever part of planning schemes, and therefore have a statutory basis, notwithstanding this however, we believe it would be a mistake to apply the principles of statutory interpretation to strategies and policies.

* We believe it follows from this approach that it is relevant to consider the emerging character of the area when considering proposals in this precinct. It is policy that this area undergo extensive redevelopment. The existing character of the broader locality, in particular of those parts of the locality which are not to be the subject of significant redevelopment is relevant, but it is only relevant to the question of how a transition is achieved between the emerging character of the redeveloped industrial sites, and the established residential and commercial character of old Port Melbourne.

* The policy framework is not intended to be treated as creating mandatory requirements, indeed, in this case the adopted as distinct from the proposed policy framework is somewhat general. Nevertheless, under the VPP system policies are to be accorded significant weight, they are intended to inform decision making. In our view this is particularly true of policies intended to influence urban design. If it is intended to achieve a particular outcome in a particular precinct from an urban design perspective, it would require the consistent application of policy over a long time frame.

* The policy relating to this precinct is in a state of flux. We accept that a decision in this case could significantly affect the future direction of urban design policy in this precinct. We are living in a period of substantial social change. It is not just that the "baby boomer" generation is ageing, there are very significant changes in the needs and expectations of the community. An important consequence of this from a town planning perspective is the change in household structures and the implications of this for housing demand and ultimately the shape of our city. An effect of this is that the social character of Port Melbourne is changing and that this change is and has been inevitable and is independent of the extensive redevelopment which has and will occur. The urban consolidation and housing policies of the SPPF directly address these planning issues, and indeed these policies have been a feature of Metropolitan and State policy for many years. However at this level, policy is necessarily very general and the Tribunal is concerned that at the local level, that is at the level of the LPPF in the new VPP Planning Schemes there are very few examples of positive planning solutions, instead the emphasis is overwhelmingly on controlling, managing, restraining, the incremental change arising from this social change. The preservation of those aspects of our city we value is of importance, but town planning should be about the future and not solely about the past. Town planners and the community should be looking for positive solutions to accommodate these changes, and not merely be reacting to a market driven response to these social changes. By contrast the identification of this precinct in Port Melbourne as a place for change, directly responding to need created by this social change, is an example of positive planning and should be supported. However the process of planning for this precinct is incomplete. The Tribunal is not itself a planning authority, and therefore in this context we believe that the existing processes leading to the development of policy in this precinct need to be further advanced before we can properly make a decision.

3. Notwithstanding our decision to adjourn the application, and being conscious of the fact that we must ultimately make a decision in this Application for Review, and because we have had the benefit of many days of submissions and evidence, it is considered appropriate to make some observations and conclusions in relation to the matters relevant in this Application for Review.

4. The primary issue in this appeal is one of urban design. The issue arises because this is an area under renewal. In this precinct, while it is not a greenfield site, we are not merely dealing with infill development in a strongly established urban context.

5. The precinct which is the subject of renewal is quite limited in its extent, and is with some minor exceptions bound by Princes Street, Beach Street, Pickle Street and Graham Street. Although the Tribunal has not surveyed this in any great detail, it is probable that some 50% of sites within this area have already been redeveloped or occupied by buildings of some heritage significance which should not be redeveloped. Of the remaining sites there are a number, like the appeal site, which are quite large in area and create considerable opportunities for redevelopment. Some characteristics of the area are:

* Large industrial sites capable of redevelopment,

* Limited interfaces with low rise nineteenth century residential areas,

* Proximity to the bay, the city, the Bay Street shopping centre, and the attractive residential environment of Port Melbourne, Albert Park, and Middle Park, and

* The enormous popularity of the area as a place to live.

6. These characteristics mean that this part of Port Melbourne is an area of metropolitan significance providing opportunities to create a new urban environment while advancing the metropolitan policies of urban consolidation and housing choice. There is a wide divergence of opinions in relation to how the opportunities evident within this precinct might be realised and in particular about what is the appropriate urban design outcome.

7. Some elements of the community, to a degree represented by Mrs. Anderson and the Friends of the Port Melbourne Foreshore, would prefer redevelopment which was predominantly one to two storeys in height, essentially a repetition of the nineteenth century model of residential development found in the established areas of Port Melbourne and nearby Port Melbourne. In essence there is some validity in this model for redevelopment, because of its association with the character of the broader area and the limited physical change to the environment which would result. However, it is doubtful that it could be reasonably argued that such a model for redevelopment is making best use of the opportunities available in this precinct in the context of significant social change and the needs of a major city at the end of the twentieth century.

8. A second option which could be described as the medium rise option is that proposed in Amendment C5, and by the process of evolution in the report of the Joint Working Group. This is also a valid option, and may be said to take better advantage of the opportunities of the precinct from a metropolitan perspective. However, care would need to be exercised to avoid a rather uniform wall of buildings on many of the streets within the precinct. Perhaps the more layered approach used in the Joint Working Group report may avoid this problem.

9. In some senses the medium rise proposals of C5 and the Joint Working Group might be seen as proposals designed to prevent the emergence of what could be regarded as the third option, that is the high rise option. It is clear that the high rise option is unpopular, and while the critical comparison of what could develop here with the Gold Coast is clearly misleading, there is nevertheless genuine opposition to high rise development. Notwithstanding this we are of the opinion that a high rise option is also a valid option. It will significantly alter the urban character of the precinct, but so will the medium rise option.

10. It could be said that the high rise option takes even greater advantage of the opportunities existing in this precinct by utilising twentieth century building materials and technology. A particular aspect of this would be views into and out of the precinct. An opportunity characteristic of sites in the precinct is the opportunity for views of the bay and the CBD, high rise development would enhance these opportunities for future residents within the precinct. The area under discussion is very compact, an island within the low rise forms of the nineteenth century residential areas of Port Melbourne and Albert Park and the newly developing low rise environments of Bayside. A small cluster of high rise buildings in this locality may enhance views into the precinct, just as views of the high rise forms of the CBD are valued views.

11. High rise dwellings are a sort after and valued housing form, very few locations can support this form of housing, perhaps this precinct could be one of that can.

12. An issue raised is the effect of the proposed building on views up and down Bay Street to the bay and to the city. From a number of advantage points within Bay Street, (and elsewhere) close to the site, the proposed building will be a significant element in the view shed, however, this is largely a matter of degree, as it is clear that any significant redevelopment of the site even a medium rise development, would be a significant intrusion into the existing character of the streetscape. Notwithstanding this, however we do not consider that the redevelopment of the site as proposed or in some more medium rise form, will unreasonably intrude into the views up and down Bay Street.

13. We are satisfied on the basis of Mr Symons' evidence that sufficient car parking is provided on-site to cater for the proposed uses, and that the traffic effects of the proposal are manageable within the existing road system, subject to some improvements to be undertaken at the cost of the owners of the various development sites within the area. There will be quite significant increases in traffic volumes, but this will to some extent be offset by a reduction in the heavy industrial traffic which presently uses the area. Traffic congestion and parking demand in the area are likely to be more affected by seasonal tourism etc, than by local redevelopment.

14. Prof. Dovey was critical of the shadows cast by the proposed building, but by and large he was relying on the shadow effects created late in the day, or around the winter solstice. It is reasonably clear that the proposal does not create undue shadowing when tested against the Good Design Guide standards for overshadowing. We are of the view that it is the Good Design Guide standards which should be applied. It is difficult to see why a relatively distant high rise tower should be subject to a more stringent standard than an immediate neighbour who is proposing a first floor extension to their dwelling. We prefer Mr. Biles' analysis in this regard

15. Mr Biles referred to plans for various devices to prevent overlooking from the high rise tower. We are satisfied that the implementation of these devices will adequately protect the privacy of nearby residents. It was also submitted that notwithstanding the use of privacy devices, a high rise tower would create the perception of overlooking in nearby low rise residential environments. We accept that there is some truth in this submission, but it will be also true of any medium rise proposal at least within the immediate neighbourhood of the site where these issues could be of importance. We are of the view that this perception in respect of overlooking is an outcome which must be accepted if renewal in this precinct is to go beyond the model of one to two storey Victorian residential development patterns.

16. There was no real argument that appropriate decisions have been made in relation to this particular site with respect to the existing buildings which are to be demolished and the existing buildings which are to be retained within the proposed redevelopment. There was also broad agreement that the direct interfaces of the proposed development with the various street frontages have been carefully considered, providing an appropriate human scale on the street and being reasonably consistent with the heritage character of the area. Other than for this, the proposal, in particular the tower, is very different to the existing urban character of the precinct, however, a very different urban character is an inevitable consequence of the renewal of the area unless ultimately decided that the appropriate urban design solution for the area is the low rise one or two storey option.

17. Within the precinct which is available for extensive renewal, there are a scattering of buildings which are of heritage significance. It is appropriate that these buildings are preserved. It is not inconceivable that these buildings could be preserved in the context of substantial change in the urban environment of the area. If this is to be achieved the development of podium structures addressing the street, as has been done in this case, will be an important element in integrating the heritage buildings into the fabric of the newly developing area.

18. Putting aside the question of whether or not a high rise tower is an appropriate solution on this site, we are generally of the view that the architecture in this proposal is of a very high standard. It was broadly agreed in the hearing that from the perspectives of design and use, the integration of the proposal with its street frontages was very well resolved.

19. Therefore, in conclusion it is the Tribunal's view that the outstanding issue in this Application for Review is the question of the relationship of this proposal to the urban design future of this precinct in renewal. While the Tribunal acknowledges that under the VPP framework the Tribunal will ultimately have to make a decision about whether or not this proposal is acceptable on its own merits, such a decision must be influenced by the planning policy framework applicable to urban design in the precinct, and that in this case that framework is in a state of flux, and the Tribunal should not pre-empt the decisions which must be made.

20. The Tribunal will give further directions in this mater once the report of the Panel is published.

Teac Australia PL v Port Phillip CC [1999] VCAT 1222

At a glance

Court

Decision date

Before

Source

Judgment (49 paragraphs)

Teac Australia PL v Port Phillip CC [1999] VCAT 1222 (31 July 1999)

Parties