The University of Melbourne v Minister for Planning

The University of Melbourne v Minister for Planning - [2011] VCAT 469 - VCAT 2011 case summary — Zoe

[43]

The University of Melbourne proposes to establish the Peter Doherty Institute for Infection and Immunity on the subject land as a world class biomedical facility specialising in human infectious diseases and immunity. The Peter Doherty Institute is a partnership between the Victorian Government, Melbourne Health and the University of Melbourne. It will bring together other major organisational groups, which are recognised leaders in their fields and which have complimentary expertise in the fight against infectious disease. It will physically unite units comprising approximately 500-600 staff that are currently dispersed on separate sites around Parkville. These units include:
- University of Melbourne - Department of Microbiology and Immunology
- Microbiological Diagnostic Unit Public Health Laboratory
- Victorian Infectious Disease Service
- Victorian Nosocomial Infection Surveillance System
- Victorian Infectious Disease Reference Laboratories
- World Health Organisation Centre for Influenza Reference and Research
- Victorian Life Sciences Computational Initiative
- Nossal Institute for Global Health
The Commonwealth Government has provided funding of $90 million to build the Peter Doherty Institute on the subject land. The funding agreement provides that facilities will include peak computing and bioinformatics capability; a high through-put DNA sequencing facility; containment laboratories; and teaching and networking spaces.
The benefits that will flow from the establishment of the Peter Doherty Institute in this location are undisputed. However, to build the purpose designed facility, which the funding agreement with the Commonwealth envisages, the existing heritage building on site must be demolished.
The former Ampol House is an eight storey office building in reinforced concrete. Architecturally, the building is notable principally for its dramatic glazed circular corner tower, housing Melbourne's tallest concrete spiral stair. It was completed in 1957 to a design by Bernard Evans and Associates and originally housed the headquarters of Ampol. In 1980, the building converted to a hotel and operated as the Elizabeth Tower Hotel until purchased by The University of Melbourne in 2009 as part of the site for the Peter Doherty Institute.
There is strong policy support for the retention of heritage buildings in the planning scheme. Equally, there is strong policy support for the establishment of research and education facilities, such as the Peter Doherty Institute, within this precinct. The dilemma in this particular case is that achievement of each of these planning objectives is mutually exclusive. The Peter Doherty Institute requires a purpose built building. It is not possible to adapt the former Ampol House to its needs. The stark choice is either to retain the former Ampol House building and lose the Peter Doherty Institute, or to lose this heritage building through demolition.
In this situation, the Tribunal's responsibility is to take account of and give effect to the policies applicable to issues before it to ensure integrated decision making.[1] Clause 10.04 of the planning scheme relates to integrated decision making. It provides as follows:

[47]

Before considering the key issues we have identified, we must address the submission by the council that there is nothing to tie the Commonwealth funding to this particular site and that the Peter Doherty Institute could just as well be located on other land owned by the University of Melbourne.[2] The council submits that if the Institute was relocated, it would enable the former Ampol House to be saved. We place no weight on this submission for several reasons.
The Tribunal's task is not to identify alternative sites or more appropriate sites. It must assess the particular permit application, which has been made for this particular site. We must decide if the proposal will produce acceptable outcomes in terms of the decision guidelines set out in clause 65 of the planning scheme. The test which the planning scheme requires to be applied is one of acceptable not ideal outcomes.[3]
In the context of considering this permit application, it is not necessary to engage in a forensic analysis of the Commonwealth Funding Agreement and associated documents. Even if we did, our findings would not affect that Agreement. The fate of this application does not turn on whether we think it would be possible for the Peter Doherty Institute to apply the Commonwealth funding to some alternative site. The only relevance that evidence about the Commonwealth funding has, in our view, is to lend weight to the significance attaching at a national level to the establishment of the Peter Doherty Institute. The Commonwealth Government is not going to part with $90 million for a project that is not important to the national interest. The funding is for the purpose of establishing the Peter Doherty Institute. Our task is to decide if this is an appropriate site. It is inherent in this task to determine whether the former Ampol House should be saved at the expense of the institute or vice versa.
Finally, we place on record that we have no doubts about the credibility of Professor McCluskey and his evidence regarding the terms and conditions upon which funding has been provided by the Commonwealth for this proposal. Whilst we do not consider it is necessary to analyse the Commonwealth Funding Agreement in any detail, we consider that the interpretation provided on behalf of the applicant in response to the council's submissions on the subject[4] are to be preferred and we accept that the Commonwealth Funding is tied to the subject land.

[49]

The subject land is within the Parkville Biomedical Precinct, which is a specialised activity centre based around existing education and medical research institutions. The physical proximity of these facilities is critical to create synergies that assist biomedical breakthroughs.
Melbourne is recognised as a centre for knowledge and innovation. The Melbourne Planning Scheme recognises that the continued prosperity of Victoria depends on providing for a changing economy. A number of emerging and traditional sectors are critical to the State's continued economic prosperity. These sectors include education, research and development, information and communications technology, advanced manufacturing, biotechnology, and environmental management, which already have a strong presence in the City of Melbourne.[5]
The subject land is within an area identified for medical, education, research and development opportunity.[6] It is also an area where moderate change to the built form character is envisaged.[7]
The planning scheme recognises that one of Victoria's greatest strengths in biotechnology capability is the co-location of key education, hospitals, and industry in a number of precincts of research excellence. These precincts, including Parkville and the Alfred (and others) provide for a focal point for sharing resources and the exchange of ideas.[8]
These statements in the planning scheme reflect similar statements in the Biotechnology Strategic Development Plan for Victoria, Department of State and Regional Development, 2001.
Location of the Peter Doherty Institute on the subject land is also in accordance with the Victorian Government's Parkville Precinct Strategic Plan. Implementation of the strategic plan has seen the establishment of the Bio21 Institute located on the north-eastern corner of Flemington Road and Park Drive, the University of Melbourne's neuroscience building on Royal Parade, which is nearing completion, and the proposed Victorian Comprehensive Cancer Centre development on the former Dental Hospital site on Grattan Street. This specialised land use precinct is focused around the University of Melbourne and the Royal Melbourne, Royal Womens and Royal Childrens hospitals, the Walter and Eliza Hall Institute of Medical Research and the Ludwig Institute for Cancer Research.
An objective of the SPPF is to create opportunities for innovation and the knowledge economy within existing and emerging industries, research and education.[9] We find that the location of the Peter Doherty Institute on the subject site will meet these policy objectives and others, which we have outlined. We therefore find that there is strong policy support, both within the planning scheme and more broadly by the Victorian Government, for the establishment of the Peter Doherty Institute on the subject land.

[78]

The council submitted that the new building, which is to replace the heritage building should but fails to "make an equivalent architectural statement" and fails to provide a corner statement equivalent to that of the former Ampol House. We disagree and find that this proposed building will make an architectural statement of appropriately high calibre and adequate sufficiency. We reach this conclusion based on the following analysis.
The council argued that the proposal failed, architecturally, to achieve an equivalent architectural statement to the former Ampol House on various grounds: it would not provide an appropriate landmark; it was not designed to be viewed in the round; it lacked an appropriate corner treatment (i.e. to emulate that of the former Ampol House); and its modest corner emphasis would be nullified by the location of the lift shafts part-way along the Grattan Street façade.
Mr. McGauran gave evidence for the applicant that the building will achieve a high calibre of architectural quality by way of subtlety in the use of quality materials and detailing, and through variations in the visual texture and patterning of different elevations.
It has become something of an architectural dictum that one should set aside the principle that a building's architectural expression should grow out of a functional representation of both the activities it contains and the associated choice of structure and finishes. This functionalist ('form follows function') aesthetic arose in the early 20th century in reaction to the prevailing use, and debasement, of historicist styles with their avoidance of the aesthetics of industrial production. More recently, this functional approach has itself become debased and, applied en masse, has lead to a widespread perception of, and desire to reject, a now boring aesthetic. And so we now have an emerging new aesthetic which, by manipulating the building's form, structure or finishes, seeks to treat buildings in part as urban sculpture while still maintaining their functionality.[20]
In this context, we agree with Mr. Lovell (together with the National Trust's citation) that the former Ampol House is, apart from the prominent and decorative feature of the corner stair, an interesting but undistinguished example of a commercial style of architecture as more generally practiced some 20 years or more before the building was constructed.
Council's submissions seemed to imply that any replacement building should use this more current sculptural style of architecture to achieve a landmark emphasis, including setbacks to upper floors to create a more tower-like form above a podium.
However, this sculptural approach can be applied more readily to some types of buildings than others. In the present case, we have a building with highly complex internal functions and functional relationships, involving extensive amounts of plant. The architect has proposed a building that maximises the volume defined by the whole site up to the building's highest level. If this is indeed the required volume, some sculptural treatment could only be adopted if floor areas were reduced in area and height increased. We are not persuaded that this is necessary.
We do not accept the council's concern that revealing the panel of lifts part-way along the Grattan Street façade will distract a viewer from the building's landmark role, which we believe will be achieved quite adequately from its scale and corner location. We acknowledge the way the architect has chosen to characterise the Grattan Street façade in terms of a Mondrian-type patterning. We consider its asymmetry is much preferable to a symmetrical pattern.
We endorse the assessment by Mr Gauran that this building is one of high architectural calibre. The requirements of the design brief and the Commonwealth funding agreement have been incorporated into a refined, building, which relies on a subtle juxtaposition of line, texture, and detailing to balance its size. It is not an outlandish, sculptural building, but is nevertheless a building of distinction.
We also agree with the evidence of Mr McGauran and Mr Biles that the building's ground floor design and footpath interface (after further recommended modifications) with its associated activities will provide an appropriate social enlivening of adjoining footpaths.

[79]

Council objected to the grant of a permit because of the proposed building's excessive height and lack of upper-level setbacks. However, we agree with the applicant's urban design experts that the building will make an appropriate urban design contribution to its locality.
The council says that the building would be too high and would lack appropriate upper-level setbacks, each of these design features being contrary to the objectives of DDO44.
The objectives for buildings in DDO44 include promoting Elizabeth Street as a major boulevard, achieving consistency of higher form, maintaining a contrast with (i.e. by being lower than) buildings in the CBD, placing dominant landmark buildings around the Haymarket roundabout and developing a new built-form character.
The schedule to DDO44 states, in part, that buildings should have a maximum height (i.e. "preferred height", as this provision is discretionary) of 8 storeys. At 4 metres per floor for a non-residential building, this provides for 32 metres for such buildings, as compared to this proposal with a height of 48 metres or thereabouts. The schedule also sets out a number of "desired outcomes" that generally elaborate the overlay's various objectives.
Mr. Biles, in evidence on behalf of the applicant, pointed to the large number of existing, approved (or seriously entertained) buildings in this site's locality that are of generally equivalent height to this proposal. They include the Alan Gilbert Building to the immediate east ( 9 storeys); an approved medical/research building on the Ford site to the south (15 storeys); the Faculties of Business and Economics (13 storeys) and Law (12 storeys) nearby to the south; and the foreshadowed Victorian Cooperative Cancer Centre on the old Dental Hospital site opposite on Elizabeth Street (anticipated to be 15 storeys in part). Mr. Biles concluded that buildings of these heights will contrast effectively with the substantially higher buildings on the northern edge of the CBD; for example, the proposed CUB site redevelopment includes buildings to 50 storeys and there are other existing or approved buildings of between 20 and 50 storeys in various parts of the northern sections of the CBD.
Mr. McGauran concluded that the building's extra height above the DDO44 preferred height limit was justified by the height of other tall buildings in the locality and from the benefit it offered by emphasising the Elizabeth Street boulevard and the Haymarket roundabout.
We find it difficult to discern which views of the taller buildings in the southern portion of the University and South Carlton are most important. In fact, after our site inspection, we found it hard to establish where this grouping of buildings is best observed, other than from within the area itself or from its immediate surrounds. Long or middle distance views tend, at best, to be fragmented and limited by buildings in the viewer's foreground or by the substantial avenue plantations in Royal Parade and the various public gardens. We believe that the best views of the proposed buildings and other tall buildings nearby will be from Grattan Street and the area's bounding boulevards. However, even in this context and with these taller buildings looming over the viewer, the difference between their heights and the much higher buildings in the central area's northern edge will be very apparent. Certainly, during our inspection, the taller buildings of the central city were very visible from viewpoints within South Carlton and their greater height was very prominent.
From our site visit we also conclude that the existing building is not prominent when seen in the context of the other tall buildings around it. The only feature that justifies it having some landmark quality is the corner staircase. In terms of its size, the building is now somewhat of an understatement. To achieve a landmark statement with a new building, such building would have to be significantly higher than the former Ampol House.
In considering the most effective means of making a strong landmark statement at an important gateway, we conclude that a building using the podium/tower form would be potentially less dramatic than this proposed structure, which will rise sheer from the street[21]. Elizabeth Street and the Haymarket create an extensive vista within which such dramatic form is appropriate. Furthermore, almost all of the recently constructed tall buildings in South Carlton rise sheer from the street with no podium.
We therefore find this aspect of the proposal is acceptable.

[91]

As the Supreme Court observed, the test of acceptable outcomes is informed by the notions of net community benefit and sustainable development. An outcome may be acceptable despite some negative characteristics. In the present case, we have concluded that, on balance, development of the Peter Doherty Institute will result in a net community benefit despite the negative outcome resulting from the loss of the former Ampol House.
We have earlier referred to the strong policy support for establishment of the Peter Doherty Institute on the subject land as part of the Parkville Precinct, the public health benefits that will flow from establishment of the institute and the contribution it will make to the economic development of Melbourne and its competitive advantages. We consider these are all important and substantial community benefits.
We accept that retention of heritage assets is also a community benefit. The physical character of cities and the contribution which places of heritage significance make to that character is another contributing factor in the way in which cities compete with one another.
Yet cities must be regarded as palimpsets: they must be capable of growth and adaptation to meet new needs. Over times the buildings of one era will invariably require replacement or adaptation to meet these needs. It is important to conserve and enhance buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value.[28] However, when a conflict arises between this objective and other objectives, and a choice must be made between them, the Tribunal must balance those conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.
In the present case, we conclude that a greater community benefit for present and future generations will ensue from the establishment of the Peter Doherty Institute than from retention of the former Ampol House. The demolition of this building will be a loss and will be a negative consequence. However, it will not be anywhere near so great a loss as the community would suffer if the Peter Doherty Institute did not proceed. The former Ampol House is of local significance under the planning scheme. Its loss will be felt locally. But given the scale of risks posed by the emergence of infectious diseases that we have no capacity to combat, the loss of the Peter Doherty Institute for Infection and Immunity would be a loss for the community at a national and international scale.
For the reasons we have given earlier, we consider that the design of the proposed new building will meet the needs of the Institute and retain sufficient flexibility to be adaptable for future alternative uses. Its five star rating for a laboratory building represents a sustainable development. It is also a building of high architectural merit and its height is appropriate in its context.
We therefore conclude that a permit should be granted for demolition of the former Ampol House and for the use and development of the Peter Doherty Institute.

At a glance

Court

Decision date

Source

Judgment (165 paragraphs)

The University of Melbourne v Minister for Planning (includes Summary) (Red Dot) [2011] VCAT 469 (22 March 2011)

Parties

Legislation Cited (2)

Cases Cited (2)