Victorian Civil and Administrative Tribunal|2003-08-29

WAF Constructions Pty Ltd v Yarra CC [2003] VCAT 1122 (29 August 2003)

PLANNING AND ENVIRONMENT LIST VCAT Reference: P798/2003

Planning and Environment List; Application under s 80 Planning and Environment Act 1987; Yarra Planning Scheme; Business 3 Zone; Five level building for Office use and car parking; Conditions relating to massing of building and car parking.

MEDIUM NEUTRAL CITATION: [2003] VCAT 1122

The order of the Tribunal is that the decision of the Responsible Authority is varied.

It is directed that Planning Permit No. PL02/0031 must not contain Conditions 1(a), I(b), 1(c), 1(d), 1(e), 1(f), 1(k), 1(l), 1(n) and 9.

The Responsible Authority is directed to issue the permit without those conditions and with the remaining conditions re-numbered accordingly.

For the Applicant for Review: Mr N J Tweedie, of Counsel, instructed by Deacons. He called the following persons to give expert evidence:

* Mr Donald Robertson, traffic engineer with Grogan Richards.

* Ms Colleen Peterson, town planner with Metropol Planning Solutions.

For the Responsible Authority: Mr David Vorchheimer, planning advocate.

The written submissions of the parties, the reports of Mr Robertson and Ms Peterson, together with numerous photographs, policy documents and other material tendered at the hearing, have been retained on the Tribunal's file. At the request of the Applicant for Review a model of the proposed development has not been retained. It will be available for collection at the 7th Floor, 55 King Street, Melbourne.

1. This is an application under Section 80 of the Planning and Environment Act 1987 to review conditions in a permit (No. PL02/0031) issued by the City of Yarra (hereafter, "the Council") on 4 April 2003 for the demolition of the existing building at 21-25 Cremorne Street, Richmond and the development of a five level building for office use, and associated reduction in car parking.

2. The application for review, lodged on 31 March 2003, sought review of

sub-sections (a)-(f), (k) and (n) of Condition 1 (which requires the submission of amended plans for endorsement) and Condition 9.

3. The grounds of review state that the requirement in Conditions 1(a)-1(e) "is unreasonably restrictive given site zoning and scale and character of surrounding development". Those conditions read as follows:

(a) deletion of proposed fourth floor level and terrace;

(b) deletion of proposed vehicle car parking stackers;

(c) deletion of upper level tenancy 4, 5 and 6 located on the second floor level;

(d) deletion of floor area of tenancy 10, 11 and 12 east of the stair on the third level, inclusive of the terrace area;

(e) increase in setback of the proposed third floor level from the western boundary by an additional two metres (no increase in floor level or increase in footprint to the east);

4. Condition 1(f) requires "redirection of car parking ducts from the eastern boundary to maximum distance from properties, adjacent and to the east". The grounds of review state "Our client endeavours to achieve the intention of this condition however believes the wording to be unreasonably restrictive".

5. Condition 1(k) requires "floor to ceiling levels in the basement car parking to be reduced to minimum clearance height for single (non stacker) car parking spaces". The grounds of review state "As part of this application for review, our client intends to rely on stackers for car parking and, given this, this requirement is not achievable.

6. Condition 1(n) requires "the overall height of the building reduced by a minimum 4.2m relative to submitted plans". The grounds of review state that "No reduction in height is proposed".

7. Condition 9 is worded "No fewer than 28 car spaces must be provided on the land for the use of the development". The grounds of reviews state "We request the wording be revisited given the above conditions to be appealed".

8. The subject site is located on the east side of Cremorne Street, commencing approximately 100m south of Swan Street. The site is slightly irregular in shape. It has a frontage of 19.98m, a maximum depth of 33.8m and an area of 678.72m2.

9. The site is developed with two, double storey warehouse/industrial buildings which occupy almost the entire site. The buildings have a maximum height of between 7.5m and 8m adjacent to the frontage. They are single storey at the rear with a height of approximately 7m.

10. There is a 3m-wide crossover at the northern section of the frontage which provides access to internal car parking. An 8.5m-wide crossover at the southern section of the frontage provides access to two car space and a loading bay in an undercroft.

11. The surrounding land is predominantly developed and used for a mixture of industrial and commercial purposes. There are various building types. Most are one or two storeys in height. Exceptions include some of the buildings associated with the TAFE college to the south.

12. The property abutting to the north (13 Cremorne Street) has a single storey brick office building. It is set back 6m from the street and has a height of approximately 4.2m. Land further to the north (9-11 Cremorne Street) is developed with a

free-standing warehouse built to all boundaries and with a maximum height of 8m.

13. The property abutting to the south (23 Cremorne Street) has a two storey masonry building constructed to all boundaries. It has a maximum height of 8m. An application to add a floor is currently being considered by the Council.

14. Land abutting to the east (16 & 18 Dove Street) is relatively recently developed with a two storey building and a three storey building. The endorsed plans for 16 Dove Street show car parking, storeroom, office, bathroom and studio at ground floor level and a studio, kitchen, laundry, office and north-west facing deck area at the first floor. The endorsed plans for 18 Dove Street detail a business area consisting of 40% of the floor area. The plans show a garage, workshop, kitchen and light courts at the ground floor level, a meals/sitting area, laundry, workshop, living room, bedroom and bathroom at the first floor level and a sunroom and 8m2 deck at the second floor level. A sign on the façade identifies its use as "Bishop decorative finishes". Mr Vorchheimer advised that when these developments were approved in 1997 the zoning of the land allowed a caretaker's residence

15. Cremorne Street has an 11m-wide carriageway in a 15m-wide reserve. It is currently being reconstructed. It provides for two-way traffic movement and parking along both sides.

16. The Tribunal adopts the following description of the key elements of the proposal taken from the report of Ms Peterson:

* Construction of a five level building containing a total of 1283m2 of office floor space in 13 tenancies, some of which are two storeys.

* Two level car park, accessed from a dual crossover, providing a total of 36 car parking spaces, of which 16 are provided in a tandem car stacker arrangement. This equates to parking provided at a rate of 2.8 spaces per 100m2 of floor area. The car parking entrance is setback 1.8 metres to integrate improved sight lines from the basement into an architecturally treated entrance with tiling and glazed wrap around façade.

* Central foyer with communal stairs and lift to all levels and office space at ground level.

* Central glazed atrium at each level above ground level and communal amenities.

* Terraces facing east and west at the third floor, to incorporate setbacks at this level.

* Smaller fourth floor, integrating lift overrun and plant equipment along the northern boundary with a west facing terrace.

* The building is proposed to be constructed to each boundary for the first three levels with light provided to the rear office space through the central light court. The third floor is setback 4.6 metres from Cremorne Street and between 3.0 to 6.2 metres from the rear boundary. The three storey component of the building is 11.95 metres in height.

* The fourth level is setback 5.8 metres from Cremorne Street and between 12.9 to 21.2 metres from the eastern boundary. The fourth level is 15.55 metres in height.

* The building is 17.85 metres in height at its highest point with the lift overrun an additional 700mm.

* The three storey 'podium' of the building incorporates a glass and perforated metal louver screen in a distinctive graphic to provide solar protection to the western façade of the building.

17. The walls are proposed to have a painted render finish. There is to be an "alucobond" entrance canopy and glazed fold up panel doors at the entry to the car parking levels.

18. A comprehensive description of relevant planning controls and policies was provided in the written submission of Mr Vorchheimer and the report of Ms Paterson. As those documents are attached to the Tribunal's file it is not necessary to again detail the provisions. They can be briefly summarised as follows:

* Business 3 Zone in the Yarra Planning Scheme. No permit is required to use land for purpose of an Office. However, pursuant to Clause 34.03-4 a permit is required to construct a building or to carry out works.

* Pursuant to Clause 34.03-4 before deciding on an application for buildings and works consideration must be given to the decision guidelines in Clause 65 of the Planning Scheme and, as appropriate, certain listed matters. These include the provision of car parking and the streetscape.

* Clause 65.01 requires consideration of certain matters, including the matters set out at Section 60 of the Planning and Environment Act 1987, the State and Local Planning Policy Frameworks, the purpose of the zone, the orderly planning of the area and the effect on the amenity of the area.

* Car parking provisions at Clause 52.06, including purpose, number of spaces required and decision guidelines to be considered before a requirement is reduced or waived.

* State Planning Policy at Clause 11.03-1 (Settlement), Clause 14.01 (Planning for urban settlement), Clause 14.02 (Metropolitan development), Clause 17.02 (Business), Clause 18.02 (Car parking and public transport access to development) and Clause 19.03 (Design and built form).

* Municipal Strategic Statement (hereafter, MSS") provisions at Clause 21.04 (Vision), objectives for Urban Design, Industry and Commerce and Transport and Access at Clause 21.05.

* Local policy regarding Location of Commercial/Industrial Activities at Clause 22.05.

* The State Government's draft metropolitan strategy, Melbourne 2030

19. The land is also affected by the City Link Overlay. Pursuant to Clause 45.07-5 the application was referred to the Melbourne City Link Authority. The Authority advised that it has as no objection to the application.

20. The application was lodged on 15 November 2002. Notice of the application was given to the owners and occupiers of neighbouring and adjoining properties. Twenty-two objections were received. The grounds of objection were summarised in Mr Vorchheimer's written submission as follows:

* loss of amenity - natural light, city views, overshadowing, invasion of adjoining open space, loss of morning sun in Jessie Street;

* impact on neighbourhood character - inappropriate building height, unsympathetic building treatment;

* increase car parking pressure/congestion - insufficient parking provision, lack short term parking provision, impact on pick up/deliveries within the street; and,

21. No resolution was reached as a result of a consultation meeting.

22. On 15 November 2002 amended plans were submitted. They decrease the floor area and increase the third level setback from the rear boundary. The plans were re-advertised. A number of original objectors reiterated their concerns. No objections were withdrawn.

23. The Council's Physical Services (Engineering) Branch made favourable comments in relation to the width of the car access, aisle widths, column position, length and width of bays, except for stacker spaces 7/32. Concerns were raised about the ramp grade and width. In relation to traffic impacts comments included that subject to all employees parking being accommodated within the site, there will be a minimal impact on the street network resulting from the visitor parking requirement. However, it was noted that "on site car parking provision appears low and arguments for a reduction do not appear to be very robust".

24. Council's delegated committee approved the application on 19 February 2003 subject to fourteen conditions.

25. There is no issue with the proposed use or the quality of the building. It is designed by one of Australia's most illustrious architectural practices, Edmond and Corrigan. Mr Vorchheimer conceded that it would present "an interesting contemporary interface to Cremorne Street". Ms Peterson was particularly effusive about the clever aspects of the design. She pointed to the environmentally sustainable features, including the abstract metal sun shade on the western façade. She also noted that an internal atrium will ensure light to tenancies irrespective of subsequent redevelopment of nearby land.

26. Bearing in mind the rationale behind the conditions which are the subject of review two basic questions need to be asked:

* Will the bulk and setbacks of the building and setbacks originally

proposed have an unreasonable impact on the streetscape and character

* Does the development provide suitable accommodation for vehicles?

27. My understanding of the first of the issues was assisted by an unaccompanied inspection of the area after the hearing. It was also very useful to have a model showing the proposed development, the form proposed by the Council and the context of the neighbouring buildings.

28. Mr Vorchheimer submitted that the Council supports the "fundamentals" of the development but considers that the form, in the context of the surrounds, "needs massaging". The Council has thus imposed conditions to reduce its height and mass. These include the deletion of the fourth floor, an increase in the setbacks of the third floor from the street and the rear and an increase of the setback of the second floor from the rear to match the level above.

29. The Applicant has not contested Condition 1(j) which requires a 300mm reduction in the floor to ceiling heights of levels 1, 2 & 3. The submissions all assumed a 900mm reduction to the overall height.

30. In addressing the rationale for Conditions 1(a), 1(c), 1(d), 1(e) and 1(n) Mr Vorchheimer conceded that the area is undergoing a transition in land use and development. However, he argued that the proposed development is "overly ambitious in its immediate context", particularly with regard the predominantly two-storey scale of buildings in the immediate vicinity. He submitted that despite the frontage setbacks of the third and fourth floor levels the setbacks do not achieve a development that respects the prevailing height. Mr Vorchheimer highlighted the height of the walls along the north and south boundaries - 14.4m to the fourth level and 18.4m to the highest level - and the 11.95m height of the Cremorne Street façade. He submitted that such heights do not represent a design response which adequately and appropriately respects its site context. He submitted that the building envelope should be reduced "to provide a degree of empathy with surrounding development".

31. Mr Vorchheimer noted that even with the modifications required by the permit conditions the building envelope would still be far greater than that of adjoining buildings. Nevertheless, he saw the modifications resulting in "a more sympathetic building...which also provides for an appropriate transition to the new use".

32. In the light of the submissions, the cross-examined expert evidence and my inspection my principal finding is that no further reduction to the height and mass is necessary. In reaching that conclusion I have been influenced by consideration of the following matters.

33. I accept Ms Peterson's evidence that State and Local planning policies and Melbourne 2030 all support the development of the site for a multi-storey commercial building. Her report itemised how the development of the site with a five level building is supported by particular policies. The site's location in an identified commercial/industrial area, together with its proximity to an extensive public transport network and an Activity Centre, are factors supporting a higher density commercial development.

34. The MSS seeks to encourage a "transition" in the economic base of the municipality by encouraging the redevelopment of industrial sites for commercial uses. As described in Clause 21.03 and 21.04, such a transition is a means by which urban renewal can be achieved and urban quality improved. The Council has also taken an important policy step in designating all Business 3 Zones as "Business Enterprise Areas". Pursuant to Clause 21.05-3 these areas seek to facilitate the development of the service sector, allow for more efficient utilisation of business premises and encourage the development of employment areas that are serviced by public transport and bicycle and pedestrian networks.

35. I accept Mr Tweedie's submission that a development in the form proposed would achieve the objectives in Clause 21.05-3 to a greater extent than it could with the reduced floor area proposed by the Council. I also accept Mr Tweedie's proposition that the correct approach is to proceed on the basis that the height of the building should not be reduced unless there are compelling reasons to do so. The fact that a lower building might also be acceptable is not a compelling reason to reduce the "yield" for the site, especially given the policy support for development at higher densities close to activity centres and public transport.

36. I appreciate that the buildings in the immediate vicinity of the subject site have a relatively low scale. However, there is consensus that this is an area in transition. As described by Mr Tweedie, it is an area "crying out for redevelopment and renewal" given the state of the building stock and its convenient location. I consider it is appropriate to consider the likely future built form in the area. It does not amount to "crystal ball gazing" to predict that many other properties in the area will be redeveloped or extended. Much higher buildings are likely to be the norm, especially as policies support change and sites are not constrained by heritage considerations or residential amenity considerations.

37. Redevelopment is already occurring or about to occur. The parties agreed that the proposed additional floor on the building to the south is likely to be approved. Approval has been given for a major residential/commercial development at the "Holophane site" at 165 Cremorne Street. It includes a 10 storey tower. There are already numerous multi storey residential and commercial developments in Kelso Street. A four and five level office buildings on the corner of Cremorne Street and Blanche Street has also been permitted.

38. Mr Tweedie highlighted that the latter development was also the subject of an application for review against conditions - Keylink Properties Pty Ltd v Yarra CC & Ors, Application for Review No. 1999/067009. In her consideration of Council's argument that the building heights should be reduced as they were excessive in the context of the surrounding buildings Member Monk stated:

In any event, what would such a reduction achieve? As Mr Bissett put it - "to what end?". Such an amendment to the design would reduce the floor area of Building A by 25%. This would take away an opportunity for the economic activity which is being encouraged under the policy framework...

The only basis for a reduction in height is that otherwise the building is too prominent. To that end I accept Mr Bissett's submission that in the context of this fast changing precinct, prominence is not a fault. Indeed, as suggested by him, it may act as a catalyst for other business enterprises who may see this as an up and coming upmarket, high quality architectural precinct. Such facilitation is of course consistent with Council's policies for the area.

39. I accept Mr Tweedie submission that Member Monk's comments are apposite to the matter before me. As put by Mr Tweedie, "There is nothing in the Planning Scheme which would suggest that a prominent building on the site is inappropriate, and much to suggest that it would be a good thing given its high architectural standard".

40. The properties to the north currently have one and two storey buildings. The building to the south will probably have a three storey building. The proposal would thus be significantly higher than its neighbours. Nevertheless, I accept Ms Peterson's view that given the commercial and industrial nature of the area, the emergence of multi storey buildings and the absence of any sensitive interfaces, "traditional notions of one storey transitions in building scale...are redundant" when considering redevelopment of the subject site. There are no height controls or express policies in the Planning Scheme which suggest what height is acceptable. The idea of a transition in height, usually invoked when considering residential development, is not necessarily applicable.

41. I agree with Ms Peterson that it is more important to consider whether the building will make a positive contribution to the streetscape in terms of its architectural merit and urban design.

42. I consider that the building will make such a contribution. In particular, it will introduce a glazed element and active frontage which will be a great improvement

on the current façade. The 11.4m high facade is consistent with the height of three storey buildings and large two storey buildings in the area. The upper levels are minimal elements and only the very top will be visible from opposite the site. The upper floors will be visible from vantage points to the north and south. However, the likely additional floor at 23 Cremorne Street will substantially screen views from the south. Views from the north will be more prominent, especially as one moves further away. However, I do not consider that factor to be critical given the recessive nature of the upper floors and the high quality of the development. Cremorne Street is major point of access to the industrial area and is a link to the Monash Freeway. The proposed building is likely to be a new landmark building in the precinct.

43. The final matter is whether the development and use of properties to the east should temper the height and form. As noted earlier, the development of each of those properties includes a caretaker's dwelling. The owners were amongst the objectors to the application but did not seek to be parties to this application for review. In any event, it needs to be acknowledged that the trigger for notification was the requirement for a dispensation of car parking. In this instance the Planning Scheme does not include a right to comment on buildings and works or land use.

44. Mr Vorchheimer suggested that the permit conditions requiring modifications to the building are to address streetscape issues and general "stepping down". He acknowledged, however, that Conditions 1(c) and 1(d), which seek to increase the rear setback of the third and fourth levels of the building to between 5.6m and 8.8m, would have the advantage of reducing the impact on the occupiers to the east. The model and plans of the approved Dove Street buildings allow an appreciation of the likely impact of the proposed development. Essentially, the proposal would lead to higher walls on the rear boundary and more building bulk adjacent to the Dove Street properties.

45. Many of the policies refer to the amenity of residential areas, particularly those at the interface of mixed activity areas and residential neighbourhoods. However, such policies are not relevant to this purely industrial/commercial area. I accept Ms Paterson's opinion that given the zoning of the land traditional notions regarding overshadowing, visual bulk and daylight do not apply in this case. The amenity expectations of residents occupying caretaker's dwellings in a Business 3 Zone cannot be the same as could be expected in a residential zone.

46. I accept Ms Peterson's opinion that the caretaker's dwellings gain their light and aspect principally from their Dove Street frontage and internal light voids. No 18 has a sunroom at the top but it is oriented to the north. There can be no expectation of views to the west. While the modifications sought by the Council would reduce the impact I am satisfied that the original proposal appropriately balances the reasonable expectations of the occupiers to the east and the zone and policy objectives. The proposal would not mean the occupiers were deprived of an acceptable level of amenity such as to justify the modifications proposed by the Council.

47. In summary, I consider that the height and massing is appropriate in its context. The use of the site for higher density commercial development is strongly encouraged by the policy framework. The proposal would satisfy the design and built form policy at Clause 19.03-2 which states:

Development should achieve architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties.

48. Applying the rate at the table at Clause 52.06-5 the proposed office development requires 45 car spaces or 3.5 spaces to each 100m2 of net floor area. Clause

52.06-1 allows this requirement to be reduced or waived where it can be justified having regard to specified decision guidelines.

49. In the light of Mr Robertson's evidence I accept that a reduction is appropriate, particularly given the excellent public transport accessibility, the availability of public car spaces and an empirical assessment of parking demands likely to be generated by the proposed use. In relation to public transport accessibility I note that Richmond Railway Station (a Premium Station which is a major interchange for the City Loop) is 200m to the north of the subject site. There are also nearby tram and bus routes. There is a Council-owned car park, adjacent to the hotel on the corner of Cremorne Street and Swan Street, which is mainly used at night. It could be available for use by visitors to the subject site. In relation to parking demands I was advised that the Council recently commissioned consultants to identify appropriate levels of car parking for potential land uses in the Cremorne Street precinct. Their December 2001 report, the "Cremorne Street Precinct Traffic Study (Draft)", recommended that for offices with up to 5000m2 of net floor area no reduction below the rate of 2.8 spaces for every 100m2 of floor area should be considered. The report has been reviewed by Council's traffic engineers and an independent traffic consultant.

50. There is agreement that minimum rate of car parking associated with the proposed development should be 2.8 spaces per 100m2 of floor area.

51. According to Mr Vorchheimer the permit conditions requiring a reduced floor area were not driven by car parking considerations. However, he highlighted that a development with a reduced floor area would, coincidentally, allow for on-site car parking at the agreed minimum rate without the need for car stackers. Mr Vorchheimer also noted that the deletion of stackers would reduce the necessary head clearance, allowing a reduction in the ramp gradient to comply with the applicable Australian Standard and a reduction in the overall building height.

52. In the light of my finding that there is no imperative to reduce the floor area for design or streetscape reasons the question remains of whether the proposed parking provision of 36 spaces is adequate for the proposed floor area of 1283m2 accommodating 13 tenancies. The agreed minimum rate is satisfied. However, the outstanding issue is whether the reliance on a tandem stacker arrangement for 16 of the spaces is acceptable.

53. Mr Vorchheimer submitted that the inclusion of stackers is unacceptable, particularly for a new development. He argued that their use is dependent on the movement of other vehicles, in a similar manner to tandem spaces. He acknowledged that reliance on tandem spaces and stackers may be appropriate in certain circumstances. He cited examples of such circumstances as where vehicle owners are common residential tenants, where heritage and urban design considerations impact on the visual appropriateness of parking provision, where the size of a site or access constrains the provision of spaces and small developments limited in their provision of on-site spaces. Mr Vorchheimer submitted that as the subject site is "not constrained by these particular, or other reasoned and valid constraints" the use of stackers is inappropriate.

54. Information provided by Mr Tweedie and Mr Robertson allowed me to understand how stackers work in practice. The car using the lower space is free to come and go. The stacker is not raised until the second space is needed. Obviously the bottom car needs to be moved before the stacker is lowered to allow the top car to depart. An etiquette is usually developed to manage their use.

55. Mr Tweedie submitted that the use of this type of stacker is appropriate for an office development where one can expect a low turnover of cars and there is a connection between the drivers who use the spaces. He saw the arrangement as better than a normal tandem space as it takes up less area and is thus an efficient use of land. Mr Tweedie highlighted that only a limited number of spaces are to be provided in a stacker configuration. Accordingly, there would be flexibility for their allocation to tenancies.

56. Those submissions were supported by the evidence of Mr Robertson. He was of the view that the accommodation of sixteen cars in eight stackers would not require sharing between tenancies. He advised that 4-wheeel drive or other high vehicles would not be able to use the proposed stackers. The stackers would, however, accommodate vehicles up to the 99th percentile.

57. Mr Robertson also gave evidence on the how the car parking area would need to be designed if stackers are not used. He advised that the limited width and length of the site restricts parking options. In order to accommodate 36 non-tandem spaces there would need to be multiple levels of car parking with inclined spaces on only one side of a continuous circular ramp. He predicted that there would need to be at least three and half levels of car parking, rather than the two proposed. Much of the basement space would be devoted to ramps and structures, rather than car spaces.

58. Mr Robertson's evidence suggests that the subject site does represent one of the circumstances identified by Mr Vorchheimer where the use of stackers is appropriate. The dimensions of the site constrain the provision of car spaces. The use of stackers for some of the spaces allows an efficient car park design. I accept Mr Robertson's opinion that they do not indicate an overdevelopment. Rather, they reflect the geometry of the site.

59. The reliance on stackers for some of the required car spaces is not ideal. However, given the constraints identified by Mr Robertson and the proposed office tenancies my finding is that the proposed arrangement to be acceptable.

60. I am also satisfied that the internal layout of the car park is acceptable. Mr Robertson provided a "swept path analysis" of access to a number of spaces. This included ingress and egress to and from space 21 (at the end of the basement) and some of the stacker spaces. It included an analysis of spaces 7/32. The accessibility to the latter spaces had been questioned in the comment by the Council's Engineering Branch. I accept Mr Robertson's conclusion that the spaces have appropriate dimensions and are accessible.

61. The final issue needing to be addressed is the proposed grade of the ramps. Condition 1(l) requires the submission of amended plans showing:

the ramp grade to basement and ground level car park to not exceed 5% across the property line for the first 6 metres in accordance with Australian Standard AS2890.1-1993 unless otherwise agreed with Council's Traffic Engineers".

62. Mr Robertson indicated that the Applicant did not seek a review of that condition as it was thought that the Council's engineers could be convinced that the requirement was not necessary. However, that has not been the case.

63. It was Mr Robertson's evidence that the ramp grades as proposed are acceptable. In support of that conclusion he noted that the Standard referred to in the condition is not mandatory, the ramp grade provisions in the Standard are very conservative and the proposed ramp grades meet the performance requirements of the Standard. I understand that the intention of the relevant provision of the Standard is to prevent problems getting onto the road from the car parking areas and to ensure adequate sightlines. I accept Mr Robertson's evidence that the design of the building would ensure good sightlines and the proposed transitions in the ramps are acceptable. The modification required by Condition 1(l) is not necessary.

64. In summary I have found that the height and massing of the proposed building is acceptable in its context, particularly in the light of policy considerations. Conditions 1(a), 1(c), 1(d), 1(e) and 1(n) are not justified.

65. It follows that if the building is not modified there is no need to impose a condition relating to the location of "car parking ducts". Condition 1(f) should also be deleted. That implication was acknowledged by Mr Vorchheimer..

66. I am satisfied that the accommodation for vehicles is satisfactory, in terms of the number, the reliance on some stackers and access. Conditions 1(b), 1(k), 1(l) and 9 are not necessary.

67. Accordingly I will allow the Application for Review and make the appropriate order.

Environment Act 1987

WAF Constructions Pty Ltd v Yarra CC [2003] VCAT 1122

At a glance

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Judgment (116 paragraphs)

WAF Constructions Pty Ltd v Yarra CC [2003] VCAT 1122 (29 August 2003)

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Legislation Cited (1)