The Capitol (Vic) Pty Ltd v Stonnington CC & Ors [2009] VCAT 1227

The Capitol (Vic) Pty Ltd v Stonnington CC & Ors [2009] VCAT 1227 - VCAT 2009 case summary — Zoe

[19]

Mr Imhoff , Mr Mann, Mr Hamilton and others referred to the close proximity of the proposed development to existing residents and the impacts of increased shadowing including in winter from this proposal and other developments occurring in the area. The consequences of a much larger shadow overall and increased energy use was said to be an unreasonable impost on residents.
Strategies such as the Forrest Hill Structure Plan emphasise that impacts on private amenity must be regarded differently when compared with residential areas that will experience a lower density of development. That does not mean that existing residents must be unreasonably impacted but it does confirm the commonly accepted principle that amenity expectations are not commensurate with properties that are not related to a principal activity centre.
In this context, the Guidelines for Higher Density Residential Development recognise that the amenity of existing residents is a consideration in site responsive design.
The Guidelines state that an assessment of the impact of shadowing of private open spaces is typically based on the equinox as the design standard.[26] Thus, even though shadows will be longer in winter, this is not the test set through the planning system. The design suggestions include "Maintain sunlight and daylight access to adjoining private open spaces of dwellings in accordance with Clause 55 of planning schemes".[27]
The dwellings in issue are some distance to the south-west and south-east of the site, such as in Williams and Cunningham Streets. It is correct that residential properties generally to the south-east to south-west of the review site will experience increased shadowing particularly in winter. The extent of time that shadowing would occur would be limited for the proposed development although there could be a greater cumulative affect in time if other permit applications near or adjacent to the review site are approved. Even with this outcome, we are not persuaded that the proposal should be scaled down or rejected. The impacts are consistent with the expectations created by the design objectives set by the Council for this area and, for some existing residents, could be expected to be less than shadows cast by the building designed in the valid planning permit for the review site.

[25]

The proposal provides 496 car spaces, of which 359 would service the residential uses (with 24 spaces for visitors), 125 spaces would service the offices, and 12 spaces would service the retail tenancies. This represents a reduction from a total of 1,066 spaces that would be required when applying the standard rates at Clause 52.06. Relevantly, this total number of car spaces contrasts with 666 spaces allowed in the valid permit for the review site allowing dwellings, serviced apartments and retailing.
Some Respondent Objectors expressed concern about the extent of the reduction in car spaces from the standard rates that is sought in this application. We have no difficulty with a reduction in principle given the rates for retailing, at 8 spaces per 100 square metres of leaseable floor area, are widely accepted as being too high compared with actual demands. Similarly, there is strong State and local policy support for a lesser rate than 3.5 spaces per 100 square metres of leaseable office floor area and for dwellings to provide less than two spaces each. That policy support is evident in provisions such as Clauses 12.01-2, 17.01, 21.05-1, 22.12 and 22.13 of the Scheme. Clause 22.13 supports a reduction in parking in specified circumstances, to which we have had regard. This is also a strong policy theme in Chapel Vision[29] and the Forrest Hill Structure Plans[30] .
Clause 52.06 provides the basis for deciding upon the suitability of the parking reduction sought. We have considered all of the decision guidelines and note key considerations include the availability of parking and public transport and an empirical assessment of parking demand.
The Council submitted the overall number of car spaces proposed in the development is acceptable but it does not support the intended allocation of those car spaces. In particular, the Council submitted the amount of parking for the residential component is too high, being significantly above Clause 55 (Rescode) rates if applied. More should be provided for retail and restaurant uses. One option canvassed by Mr Bisset was to lower the residential tower rate although the Council's primary position was to reallocate the spaces at a Rescode rate for dwellings, with 24 for visitors, 125 for offices and 81 for retailing/restaurants. That contrasts with the proposed allocation set out in Ms Dunstan's evidence of 1 space per one bedroom dwelling (55 total), 1.5 spaces per two bedroom dwelling (131 total), and no less than 2 spaces for the 62 larger dwellings (143 spaces).
Parking for residents may be oversupplied. We have considered Ms Dunstan's evidence on this question. Her evidence in part relates to the marketing of the largest dwellings and in part relates to Chapel Vision's demographic forecasts for Forrest Hill that suggest a higher rate is needed when compared with developments with much smaller units, pitched at a different market (eg. students) where less or no parking would be acceptable.
It is, therefore, common ground that the amount of parking for offices is acceptable and the debate focuses on parking for residents and retail/restaurant/café uses. Having considered the submissions, evidence and policy guidance, we are concerned that 12 spaces for the retail component is insufficient. We find that more parking is necessary to allocate to the retail uses with the aim of achieving a level that could accommodate staff. We have adopted a rate of 1.15 car spaces for the retail component having regard to the peak car parking rate derived from surveys in Chapel Street referred to by Ms Dunstan even though we are mindful that those premises were smaller than the tenancies proposed in the application plans for the Capitol site. Adopting that rate would result in a total of 38 spaces, a figure referred to at the hearing. By requiring 26 additional spaces for the retail/restaurant uses, there would be fewer spaces for the residential uses from the total of 496 spaces. We will require parking for the dwellings to be allocated at these rates: not less than 1 space per 1 or 2 bedroom unit and not less than 2 spaces per 3 or 4 bedroom unit.
Local residents were concerned about the extent to which the proposal relies on public transport options, services which they say are overburdened. An overburdened public transport system was referred to by a number of parties in their statements of grounds and Mr Imhoff at the hearing. There was a suggestion in one submission that the permit applicant should find ways to improve the public transport system.
Although the community is experiencing difficulties with public transport, we are aware that it is an infrastructure issue that is being addressed in a much wider planning context. Real or perceived failings with the public transport system are not reasons to refuse or modify the proposal before us. The permit applicant cannot fix any existing systemic problems and we give weight to the fact that the Director of Public Transport has not objected to the grant of a planning permit.

[28]

Mr Bisset submitted the Council is concerned that safe sightlines are available for pedestrians who will increasingly use Almeida Crescent. This concern focused on the loading and basement access areas in the north-west corner of the site that abut an access to the adjacent ANZ site. Mr Bisset referred to the "pinch point" at this location and the need to maintain vehicular access to ANZ that is also the subject of a redevelopment proposal.
The proposal involves basement and loading access being provided to the western section of the site and exclusively from Almeida Crescent. The frontage occupied by these elements is substantially less than associated with the current permit and this, we consider, is a benefit of the design before us. The proposal includes substantial road works and streetscape improvements resulting in the widening and landscaping of the Crescent.
Ms Dunstan's evidence addresses sightlines, the pinch point, and movement through the Crescent. Recommended variations to the proposal are shown in a Functional Layout - Option 1A plan included in her evidence.
We accept Ms Dunstan's evidence that the revised layout would not limit access to No. 227 Toorak Road (ANZ) assisted by a bollard treatment instead of a wall as previously shown. It would allow two way traffic movement around the bend or pinch point in Almeida Crescent and would enable a pedestrian pathway to be installed. A number of minor design details are outstanding and these can be addressed by permit conditions:
- Details of the location and finishes of security doors to the vehicle accessway into the loading/residential area car park.
- Splay to the service room, convex mirrors or punched openings to the wall between loading areas as required to provide for adequate sightlines within the loading areas.
For these reasons, we do not accept the Council's submissions that the proposed entry arrangements to the loading and car park areas are unacceptable. Almeida Crescent will be significantly enhanced by this proposal.

[30]

VicRoads and the Director of Public Transport requested any permit to issue include a ban on right turn movements into Almeida Crescent. The basis of this request was the desire to prevent any disruption to tram services along Chapel Street. Mr Beaufoy explained the policy context supporting the request and submitted there are viable alternatives (ie. Daly Street signalised intersection) that would ensure the best operating conditions for general traffic and public transport. Mr Beaufoy tendered amended conditions sought by VicRoads and the Director of Public Transport that would prohibit right turns with appropriate signage installed to the satisfaction of VicRoads. Neither authority opposed right turns being allowed out of Almeida Crescent as explained at the hearing although this position may have changed from the Council's earlier advice and/or understanding.
Evidence in reply was given by Ms Dunstan. Her assessment was based on an analysis that concluded that any delay, to the extent that it would occur, would be negligible on the operation of tram services or the road's arterial function. Her analysis had regard to the tram priority works being undertaken.
We accept Ms Dunstan's evidence and note the lack of empirical assessment tendered on behalf of the authorities to support their position of a 24 hour ban. While we appreciate that right turns at Daly Street and Almeida Crescent could give rise to some delays, we also consider a permanent 24 hour ban to be excessive.
We agree with Ms Dunstan that any such restriction, should it be introduced, probably only needs to be limited to peak hours. That should be the subject of a detailed analysis that, based on the information available to us, has not yet been undertaken.
Moreover, we are cognisant that the movement of traffic through this area will change significantly as the precinct develops and roadworks are undertaken (eg, signalisaton at Malcolm Street/Chapel Street). Some restriction on traffic movement may be desirable in time as the vehicle traffic patterns evolve and can be assessed but, at present, we are not persuaded to adopt the conditions requested by VicRoads and the Director of Public Transport. We note that Chapel Street is not managed by VicRoads however it would be possible for any specific concerns to be raised with the Council as road authority and for turn restrictions to be considered at a later time.
We also consider there is the potential for delays to vehicles departing Almeida Crescent associated with right turn movements out of Almeida Crescent, given a back-up of vehicles from the signalised intersection at Chapel Street and Toorak Road. Again, this is a matter that the road authority could address should any identifiable problem emerge.

[31]

This matter was the subject of evidence on behalf of the Applicant and TXA Australia/Broadcast Australia. The issue focuses on the location and height of the proposed development relative to the existing free to air television broadcast facilities atop of the Como building. Arrangements to site these facilities in their current location were made through the former City of Prahran. Construction of the proposed building would cast a signal transmission shadow meaning that the transmission available to some viewers to the west of the proposed Capitol development would be affected. That is common ground between the parties. We also note that the development at No. 670 Chapel Street and potentially others in the wider area could also create a shadow to the north or in other directions. It is, therefore, self-evident that the issue is not isolated to this permit application.
We offered the parties an opportunity to discuss the issues further with the assistance of a Tribunal mediator. That offer was accepted and discussions continued as the hearing proceeded. An agreement was not reached.
Proposed Condition 10, and variations to it proposed at the hearing, were the subject of written submissions filed and served with our leave subsequent to the hearing. The parties all agree that a condition proposed by the Applicant should be placed on any permit to issue although a variation was proposed on behalf of the Applicant. We have acceded to that request and added a further minor time element to it.
TXA Australia also proposed a variation to draft Condition 10 be included in any permit. We have not been persuaded to agree on this point. We agree that access to free to air television with appropriate reception is a matter of public interest, and relevant to consider, having regard to the provisions of Clause 18.13. However, we are not persuaded to require the permit holder to undertake an extensive and potentially slow process of remedial measures by a permit condition.
We accept that a similar condition was included on the current permit relating to the land. Nonetheless, we are concerned that the condition could involve the Responsible Authority potentially in a multitude of individual private commercial disputes. Moreover, the condition's operation could be complicated by other approved developments with impacts that may occur over a similar period of time making it difficult to isolate causes of transmission diminution, loss or failure. We also have some concern about the wording of parts of the condition.
We agree with the Applicant and Council that regardless of the outcome of any commercial negotiations that occur in the immediate or long terms, it is appropriate for a condition requiring the location and details of all plant and equipment on rooftops and any broadcasting or telecommunications plant and equipment to be shown on the plans which may only be on the rooftop of the proposed north tower of this site.

[34]

Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies provided generally in accordance with the plans date stamped 3 July 2008, but modified to show:
- (a) Location and details of all plant and equipment on rooftops and any broadcasting or telecommunications plant and equipment which may only be on the rooftop of the north tower.
- (b) Alterations to the office and retail components of the building as shown on the plans Council date stamped 23 September 2008. These plans show the addition of a canopy, an additional vertical element for the corner retail tenancy and alterations to the upper level setbacks of the office building.
- (c) The canopy modified, or a new canopy element introduced, so that the clearance between the underside of the canopy and footpath level is no greater than 7 metres at any point. The canopy must project no less than 3.5 metres from the building façade.
- (d) Any additional waste storage area as required by Condition 5.
- (e) Any changes required as a result of recommendation made as a part of the wind assessment at Condition 7.
- (f) Plan notation indicating any reuse of existing building materials, where reasonable and appropriate, as identified pursuant to the Conservation Analysis approved under Condition 9.
- (g) A redesign of the entry to the car parking areas from Almeida Crescent such that appropriate sight lines and levels of safety are achieved generally in accordance with the Functional Layout - Option 1A plan prepared by Traffix Group and included in the statement of evidence of Ms C Dunstan to the Victorian Civil and Administrative Tribunal in Application P3297/2008 at Appendix B.
- (h) The dimensions and layout of parking bays, access aisles, access gradients, sightlines and locations of columns such that they are generally in accordance with the Planning Scheme and Australian Standards or as otherwise approved by the Responsible Authority.
- (i) Additional bicycle parking generally in accordance with the recommendations contained in the statement of evidence of Ms C Dunstan to the Victorian Civil and Administrative Tribunal in Application P3297/2008 at pages 34 - 35.
- (j) All bicycle facilities (including the provision and design of bicycle spaces, showers and lockers) to meet the requirements of Clause '52.34 Bicycle Facilities' of the Planning Scheme and 'AS 2890.3 - 1993' or to the satisfaction of the Responsible Authority.
- (k) Any changes to the design of Almeida Crescent which are required as a part of the detailed design to be carried out as a part of the requirements of Condition 11 generally in accordance with the Functional Layout - Option 1A plan prepared by Traffix Group and included in the statement of evidence of Ms C Dunstan to the Victorian Civil and Administrative Tribunal in Application P3297/2008 at Appendix B.
- (l) Provision of an appropriate number of rain water storage tanks to minimise the use of mains water.
- (m) Details of the location and finishes of security doors to the vehicle accessway into the loading/residential area car park. This treatment must be of a high quality and design consistent with the quality and finishes to the ground floor residential lobby along Almeida Crescent to the satisfaction of the Responsible Authority.
- (n) Splay to the service room, convex mirrors or punched openings to the wall between loading areas as required to provide for adequate sightlines within the loading areas.
- (o) The allocation of the basement retail areas to the relevant ground floor tenancies.
- (p) Details of the urban art shown on Low Rise 9 Plate Plan sheet.
- (q) Finished floor levels to be achieved within the shops/restaurants at access points from Toorak Road and Chapel Street and the entry to the residential foyer from Almeida Crescent.
The development allowed by this permit and shown on the plans endorsed to accompany the permit shall not be amended for any reason without the consent of the Responsible Authority.
Prior to the commencement of any buildings or works, an Environmentally Sustainable Development Management Plan (ESD Management Plan) must be prepared by a suitably qualified person. The ESD Management Plan must be submitted to and approved by the Responsible Authority. The ESD Management Plan must address the following:
- (a) Energy Management;
- (b) Water Conservation and Re-use;
- (c) Demolition and Construction Waste Management.
- (d) Identify relevant statutory obligations, strategic or other documented sustainability targets or performance standards.
- (e) Document the means by which the appropriate target or performance will be achieved.
- (f) Identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring.
- (g) Demonstrate that the design elements, technologies and operational practices that comprise the ESD management plan can be maintained over time.
Prior to the commencement of any buildings or works, a Green Travel Plan must be submitted to and approved by the Responsible Authority. When approved, the Green Travel plan will be endorsed to form part of the permit. The Green Travel Plan must include actions and recommendations designed to reduce the use of cars and increase the use of alternative travel methods to the satisfaction of the Responsible Authority. Parking demand, travel modes and mode splits must be monitored and assessed after 3 years of operation of the uses. Following this assessment, the Green Travel plan must be reviewed and any changes deemed necessary to ensure alternative travel methods are utilised must be made, to the satisfaction of the Responsible Authority.
Prior to the commencement of any buildings and works a Waste Management Plan must be submitted to, and approved by the Responsible Authority. The Waste Management Plan must include details on how the waste will be undertaken so it has minimal impact on the amenity and the environment. Details to be provided in the Waste Management Plan must include, but not be limited to:
- (a) How the building is to assist Council in achieving the waste reduction and diversion targets outlined in the State Government Strategy; 'Sustainability in Action: Toward Zero Waste'.
- (b) That adequate storage space for waste bins has been provided.
- (c) That adequate provision has been made for access to recycling facilities.
- (d) The frequency of collection of waste.
- (e) How the waste bin capacity is balanced against the collection frequency.

[36]

Prior to construction works commencing a Parking Management Plan is to be submitted to the satisfaction of the Responsible Authority and shall:
- (a) Show how the 496 car spaces shall be designated to the individual tenancies/dwellings. Spaces are to be allocated as follows:
  - (i) Not less than 1 space per 1 or 2 bedroom unit.
  - (ii) Not less than 2 spaces per 3 or 4 bedroom unit.
  - (iii) 24 residential visitor spaces.
  - (iv) 125 spaces for the offices.
  - (v) Not less than 38 spaces for the retail uses.
- (b) Provide details of how the residential visitor spaces are to be differentiated and controlled.
- (c) Detail the signing and line marking of parking spaces;
- (d) Detail where and how loading and unloading will occur;
- (e) Detail any access controls to the parking area, such as boom gates which shall take into account the required queue length required as per section 3.4 of AS 2890.1.
Prior to the commencement of any buildings or works, a suitably qualified person must undertake a comprehensive wind tunnel test of the entire development and a Wind Climate Assessment Report must be provided for the written approval of the Responsible Authority. Any modifications required to the development in order to ensure acceptable wind conditions must be submitted to and approved by the Responsible Authority. The design details of any wind mitigation works must receive the endorsement of the owner(s) wind climate experts and preference should be afforded to the use of architectural features and planting.
Prior to the commencement of any buildings or works, a Landscape Plan to be prepared by a landscape architect or suitably qualified or experienced landscape designer, must be submitted to and approved by the Responsible Authority. When approved, the Landscape Plan will be endorsed and will then form part of the permit. The Landscape Plan must be drawn to scale and three copies must be provided. The Landscape Plan must be generally in accordance with the landscape streetscape concept plan prepared by Mark McWha landscape architect drawing no. 1555LC1 dated 20.06.2008 and show:
- (a) 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;
- (b) Landscaping and planting within all open areas of the site; and
- (c) Trees of a substantial size to be included within the design.
Prior to the endorsement of the plans and the commencement of any buildings and works, a Conservation Analysis must be submitted to and approved by the Responsible Authority. When approved it shall be endorsed to form part of the permit. The Conservation Analysis must:
- (a) Be prepared by a qualified Heritage Architect;
- (b) Include an historical account of the origin and previous uses and development of each building on the site;
- (c) Identify any existing building materials or components of specific cultural significance;
- (d) Identify the external and internal elements of the buildings that should be recorded and documented;
- (e) Propose the text and illustrations for a display of the history of the site to be incorporated into the development;
- (f) Include plans of all existing buildings sufficient to indicate the location of all materials and components identified as being of specific cultural significance pursuant to condition 1f); and
- (g) Include a photographic record of all existing buildings.

[38]

The permit holder will, at the request of a broadcast transmission service provider, enter into a lease of such space on the roof of the northern tower as is necessary to replicate or relocate the television transmission facilities presently located at the Como Centre together with such internal space as is necessary to operate, maintain and service the facilities. The terms and conditions of the lease must be to the satisfaction of the Responsible Authority. The lease must upon execution by the parties be incorporated into an agreement under section 173 of the Planning and Environment Act 1987. A request by the broadcast service provider under this condition must be made prior to, or within 30 days of, the commencement of buildings and works for the residential tower allowed by this permit.
Prior to the commencement of any buildings and works allowed by this permit, the owner of the land at Nos. 241 - 257 Toorak Road and 625 Chapel Street, South Yarra must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act to the satisfaction of the Responsible Authority and such agreement shall require that:
- (a) The owner / developer must enter into discussions with Council to reach agreement on a plan for the treatment of the public area (including any treatment to the wall on the north side of Almeida Crescent) abutting the site within Chapel Street, Toorak Road and Almeida Crescent. Once the plan has been agreed to the satisfaction of both parties, this plan will be endorsed and will then form part of the permit. The plan must provide comprehensive details of the public realm works and the works must be constructed at the cost of the owner / developer and under the supervision and to the satisfaction of the Responsible Authority prior to the commencement of the use allowed by this permit.
- (b) The owner must carry out traffic management works in Almeida Crescent in accordance with detailed engineering construction plans prepared by the developer and approved by the Responsible Authority.

[46]

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.

[48]

The emission of noise or any other emission to the environment derived from activities on the site must conform to standards contained in the appropriate State Environment Protection Policy or Policies.
All walls on or facing a boundary must be cleaned and finished to the satisfaction of the Responsible Authority prior to the approved development being occupied.
Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done at the cost of the owner and subject to the relevant authority's consent.
All redundant existing crossings must be removed with footpath, kerb and channel reinstated at the permit holder's cost to the satisfaction of the Responsible Authority.
The vehicle crossings must be constructed to Council's standard vehicle crossing specifications to the satisfaction of the Responsible Authority.
All services to the site and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
Before the use allowed by this permit starts or by such later date as is approved by the Responsible Authority in writing, the landscaping works as shown on the endorsed plans must be carried out to the satisfaction of the Responsible Authority. Landscaping must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
Prior to the commencement of the development a report for the legal point of discharge must be obtained from Council. A drainage design for the development must be prepared by a suitably qualified Engineer prior to a building permit being issued. The drainage must be constructed in accordance with the Engineer's design.
This Permit will expire if one of the following circumstances applies:
- (a) The development is not commenced within five years of the date of this Permit, or;
- (b) The development is not completed within eight years of the date of this permit.
- (c) The use is not commenced within eight years of the date of this permit.

At a glance

Court

Decision date

Before

Source

Judgment (74 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)

The Capitol (Vic) Pty Ltd v Stonnington CC & Ors [2009] VCAT 1227 (30 June 2009)