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VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

PLANNING AND ENVIRONMENT LIST VCAT REFERENCE NO. P548/2015

PERMIT APPLICATION NO. PLN14/1024

CATCHWORDS

Section 79 of the Planning and Environment Act 1987; Yarra Planning Scheme; Mixed Use Zone; Part Design and Development Overlay DDO2; Relevance of DDO11; 12 Storey Mixed Use Building; Ground and Street Level Treatment;

Activation; Public Realm Impacts; Plan Melbourne Priority Bicycle Network; Vehicle Access; Overshadowing; Unit Layout; Equitable Development Opportunities.

APPLICANT Pace Development Group Pty Ltd

RESPONSIBLE AUTHORITY Yarra City Council

RESPONDENTS Elizabeth Long, Jenny Port & Michael Pollock, John Harmer & Dianne Dalziel, Shop for Shops Pty Ltd and Others, Vivien Carroll

SUBJECT LAND No. 73-77 Wellington Street, Collingwood

WHERE HELD Melbourne

BEFORE Margaret Baird, Senior Member

Peter Gray, Member

HEARING TYPE Hearing

DATE OF HEARING 13, 14, 15, 16 and 17 July 2015

DATE OF ORDER 17 August 2015

CITATION

ORDER 1 Leave is granted for Shane Gardner – W P Van Der Linden P/L and Shane

Gardner – Wet on Wellington to withdraw their statement of grounds. 2 Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative

Tribunal Act 1998, the permit application is amended by substituting the following plans for the permit application plans:

• Prepared by Pace Development Group.

• Drawing numbers TP01 – TP30 inclusive.

• Revision C dated 29 May 2015.

VCAT Reference No. P548/2015 of 22

3 The decision of the Responsible Authority is affirmed. 4 In permit application PLN14/1024, no permit is granted.

Margaret Baird Senior Member

Peter Gray Member

APPEARANCES

For Pace Development Group Pty Ltd

Mr P Bisset, solicitor, Minter Ellison layers. He called the following expert witnesses:

• Mr S Hunt, traffic engineer.

• Mr M Sheppard, urban designer.

• Mr A Dolnikov, in relation to the preparation of photomontages.

• Ms R West, town planner.

• Mr M McFall, landscape architect. Mr M Johnson, artist commissioned by the permit applicant, was also called to present evidence.

For Yarra City Council Ms M Marcus, solicitor, Maddocks lawyers. She called the following expert witnesses:

• Mr R McGauran, urban designer.

• Ms C Dunstan, traffic engineer.

For Shop for Shops Pty Ltd and Others

Mr P Connor of counsel. He called the following expert witness:

• Mr C Czarny, urban designer.

For Elizabeth Long, Jenny Port & Michael Pollock, John Harmer & Dianne Dalziel, Vivien Carroll

Mr J Harmer appeared for all residents on Day 1.

Mr J Harmer, Ms J Port, Ms V Carroll and Ms E Long appeared on Day 2 when they presented their submissions. Mr Harmer also appeared for Dianne Dalziel. Ms Port also appeared for Michael Pollock.

Ms Carroll and Mr Harmer also appeared on Days 3, 4 and 5. Ms Long and Ms Port also appeared on Day 5.

For Peter Wu Ms M Schroor, solicitor, Rigby Cooke lawyers (Day 1) and Mr M McArdle, solicitor, Rigby Cooke lawyers (Day 5).


INFORMATION

Description of Proposal 12 storey mixed use development plus four basement levels comprising two shops (total 318 square metres) and 87 dwellings. A total of 106 car spaces is proposed plus 137 bicycle parking spaces. All vehicle access is proposed from Wellington Street. All access to the dwellings is proposed from Cambridge Street.

Nature of Application Application under Section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit within the prescribed time1.

Zone and Overlays Mixed Use Zone.

Part Design and Development Overlay DDO2.

Environmental Audit Overlay.

Permit Requirements Clause 32.04-2 to use the land for a shop in excess of 150 square metres.

Clause 32.04-6 to construct two or more dwellings on a lot.

Clause 32.04-8 to construct buildings and works associated with a section 2 use.

Clause 43.02-2 to construct a building or carry out works.

Clause 52.06 to reduce car parking.

Clause 52.07 to waive an on-site loading bay.

Relevant Scheme Policies and Provisions

Clauses 9, 10, 11, 12, 15, 16, 18, 21, 22.02, 32.04, 52.06, 52.07, 52.34, 52.35, 52.36, 52.37 and 65.

Land Description The subject land is generally ‘L-shaped’ and located on the north-west corner of Wellington and Langridge Streets, Collingwood. It has frontages to these streets of 22.22m and 57.08m respectively. It also has a frontage of 18.05m to Cambridge Street to its west. The land is 1,139 square metres and contains a three storey commercial building. There is a light easement along part of the northern boundary.

Tribunal Inspection The Tribunal inspected the site and locality after the hearing.

1 Section 4(2)(d) of the Victorian Civil & Administrative Tribunal Act 1998 states a failure to make a decision is deemed to

be a decision to refuse to make the decision.


REASONS2

WHAT IS THIS PROCEEDING ABOUT? 1 The subject land is a large lot, with three street frontages, in part of

Collingwood that is earmarked for growth and change. Through the application of policy, the area is to evolve from its industrial and commercial past through a new phase of development into a mixed use precinct with a residential focus and improved street interfaces. Enhanced and safe pedestrian and bicycle movements through the locale are related strategic directions through the Yarra Planning Scheme. Redevelopment has occurred, and is occurring, in this area, such as along Wellington Street, around Stanley and Peel Streets, and further east on the former Yorkshire Brewery land. Multiple permit applications are being lodged and assessed for sites within the near and wider environs of the subject land.

2 Pace Development Group Pty Ltd has lodged this proceeding with the Tribunal in response to a failure by the Yarra City Council to determine the permit application for a 12 storey mixed use development within the prescribed time. It is seeking the grant of a permit. There is no dispute that the subject land is suitable for redevelopment. Rather, it is the design response that gives rise to opposition to the permit application by Council and Respondent Objectors. More specifically, the grounds relied upon by all parties, and related matters raised in written and oral submissions, can be distilled to the following key questions for the Tribunal’s determination:

• Is the proposed land use mix acceptable or should there be a stronger representation of commercial/employment uses?

• Is the use of Wellington Street for all vehicle access acceptable?

• Does the proposal result in acceptable urban design and built form outcomes with respect to: o The building envelope and architectural response? o The interface with the site’s street frontages? o The interface with future development sites to the north? o Shadowing over the south side of Langridge Street?

• Is the internal layout acceptable including dwelling amenity?

• Are other internal arrangements acceptable with respect to loading, waste collection and the layout of commercial uses?

• Is a reduction in parking acceptable?

2 We have considered the submissions of all the parties that appeared, all expert and other evidence, all the exhibits tendered by

the parties, and all the material filed. We do not recite or refer to all of the contents of the documents or oral submissions and evidence in these reasons. We record the written withdrawal from Mr S Gardner. We also record a written agreement with Mr Wu and the withdrawal of his objection on the basis of the inclusion of two permit conditions relating to window screening treatments to several apartments. Ms Schroor and Mr McArdle attended the hearing to explain Mr Wu’s position including at the end of the hearing when drat permit conditions were discussed.


3 We address these key questions below. In so doing, we do not recite the submissions and evidence presented. We have considered all of the material, assisted by our inspection of the site and locality. We have also considered the numerous suggestions for modifications to the design presented through expert evidence and submissions.

4 Our reasons explain the basis for our conclusion that, despite the opportunities provided by the subject land and the evolution that is expected to occur in this area, the design response is not acceptable in a number of respects and most importantly the relationship to street frontages, the building envelope, and urban design outcomes.

WHAT IS HAPPENING IN THIS AREA? 5 The subject land is part of an area that is historically commercial and

industrial with pockets of residential uses. The land, itself, is a large commercial form but not of historic value. It is one of many such buildings, and heritage structures, of generally two to four storeys, built to site frontages. These types of buildings create the hard urban form for which Collingwood is well known. The subject land has interfaces with three streets, each with a different character. It has only two direct abuttals, both to its north – No. 72-94 Cambridge Street and No. 79 Wellington Street.

6 It is common ground between the parties that the subject land is on one corner of an important intersection. Wellington Street runs north-south and has varied built form along its length. As we discuss below, planning policy distinguishes different parts of this road. Langridge Street, which becomes Gertrude Street further to its west, falls from Smith Street to Wellington Street and then runs through to Hoddle Street and beyond. Both Wellington and Langridge Streets are higher order link roads than Cambridge Street. [They are not within a Road Zone under the Scheme]. Wellington and Langridge Streets are “Council-arterials”3. Wellington Street has recently been provided with Copenhagen-style bicycle lanes that separate bicycles from other road traffic. Langridge Street has a different form of bike lane in each direction. Cambridge Street runs north-south with lower rise buildings up to two storeys and a local traffic function.

7 Our introduction has hinted at the wave of development, redevelopment, and proposals in this area. We do not recite each of these. We summarise the following points with respect to existing higher built elements:

• To the north of the subject land, at No. 95-105 Wellington Street, is an affordable housing project with a stepped façade from four to seven storeys.

• Opposite, on the north-east corner of Wellington Street and Langridge Street, is a contemporary four storey office building.

3 Based on Ms Dunstan’s evidence.


• In construction, off Waterloo and Robert Streets, is the redevelopment of the Yorkshire Brewery site that comprises (inter alia) buildings of varying heights and forms, heritage restoration, public open space, and one building that will rise to 17 storeys.

• Silos appear in the wider context, further to the east.

• A pocket of higher development forms of seven to nine storeys is located around Stanley Street and Napolean Street as well as six storey elements in Peel Street. The older, large, historic Foy and Gibson complex, is around Stanley, Oxford and Little Oxford Streets with some contemporary additions.

• An infill development at No. 132 Smith Street varies in its street wall and height, up to nine storeys.

8 There are also approved projects and developments in construction to which we were referred at the hearing. For example, No. 107-109 Wellington Street is the subject of an application for review seeking (as we understand it) a nine storey building, having been approved at seven storeys. There is No. 64 Oxford Street, with an approved six storey development, and No. 195 Wellington Street with a nine storey approval.

9 Further, there are permit applications before the Council. One is the large block to the south of the subject land bounded by Wellington, Langridge, Cambridge and Derby Streets. At the time of the hearing, this application for a 12 storey development had not yet been advertised.

10 Finally, there are proposals to which we were referred that are not the subject of permit applications. Most relevant is that for Nos. 72-94 Cambridge Street included in Ms West’s statement of evidence. It comprises a 12 storey apartment building. Mr Czarny also referred to a lapsed permit for a six storey building on the other lot that abuts the subject land at No. 79 Wellington Street. This dates back possibly some 10 years. The existing structure on this abutting site is a two storey commercial form.

11 It is relevant to note that when citing the number of storeys, above, that we are referring to the maximum height and take on board the point emphasised by Mr Harmer and Ms Port that street walls and stepped forms mean that there are often lower elements in these developments.

WHAT IS THE SCHEME SEEKING IN THIS AREA?

Redevelopment and renewal 12 The subject land is a former industrial site in a Mixed Use Zone that is close

to the Smith Street Major Activity Centre4. These areas are targeted for major housing development contrasting with a more tempered approach in established residential areas.

4 This is the term used in the Scheme even though the hierarchy of activities areas is no longer articulated at Clause 12. The

hierarchy remains in Clause 16.01 in identifying strategic development sites. The land is not within the corridor shown at Clauses 21.03 and 21.08-5 as the Major Activity Centre.


13 Through the application of policy and Scheme provisions, the municipality’s heritage character and low rise scale are to be protected.

14 The subject land is in an urban renewal precinct through Plan Melbourne.5 Further, the area of the subject land is targeted for development through local provisions of the Scheme. This is apparent through:

• The application of the Mixed Use Zone that applies to the land and surrounding sites to the north, south and west. So, too, is the Yorkshire Brewery site.

• Land opposite on the east side of Wellington Street is Commercial 2 in which new dwellings are prohibited.

15 The subject land is not shown on the map or one of six strategic redevelopment sites in Collingwood at Clause 21.08-5. Clause 21 does not define the phrase “strategic redevelopment sites” but it is used in State policy. It is policy at Clause 16.01 to locate a substantial proportion of new housing in or close to activity centres and other strategic redevelopment sites that offer good access to services and transport by identifying strategic redevelopment sites for large residential development that include:

• In or within easy walking distance of Principal or Major Activity Centres.

• Able to provide 10 or more dwelling units, close to activity centres and well served by public transport.

16 The Council and Applicant agree the subject land is a strategic redevelopment site under Clause 16.01. While it is not common ground as to whether the subject land is a strategic redevelopment site for the purposes of local policy, or whether it is properly characterised as being within the Smith Street Major Activity Centre, there is no doubt that the land is well located with respect to services and facilities including activity centres on Smith, Johnson and Gertrude Streets and to public transport such as on Victoria Parade and Smith Street. Moreover, we do not consider that the list of strategic redevelopment sites in Clause 21.08 can be regarded as exclusive or exhaustive.6 As the Tribunal has said on other occasions7, it will not always be possible to identify strategic redevelopment sites in advance. Opportunities that present themselves and fit the location criteria cited in Clause 16.01 can be considered for higher scale development. That does not mean any site that can yield more than 10 dwellings in Yarra should be contemplated for five to six or more storeys. Rather, an assessment of a site’s physical and planning contexts is required. Relevantly, Council approvals and support for higher forms even in the environs of the subject land (paragraphs 7 and 8 above) demonstrate that it has flexibility with respect to the question of strategic redevelopment sites based on contextual circumstances.

5 Pages 39 and 175, and Maps 10 and 20. 6 This is relevant because Clause 21.05 Strategy 17.2 states (inter alia) that development on strategic redevelopment sites

should generally be no more than 5-6 storeys unless it can be demonstrated that the proposal can achieve specific benefits. 7 For example, Common Equity Housing Ltd v Yarra CC and Ors (Correction) [2009] VCAT 1829.


Built form and design 17 Clause 21.05 refers to the aim to retain the low rise urban form of Yarra

with pockets of higher density development. The low rise form is described as “mostly in the one to two storey range, with some three and four storey buildings”. The pockets of taller buildings are identified as high-rise housing estates, some industrial or ex-industrial complexes and landmark towers, spires and signs. This built form is a characteristic said to help to differentiate Yarra from the urban form of adjoining cities.

18 Associated strategies in Clause 21.07 include: Strategy 17.1 Ensure that development outside activity centres and not on Strategic Redevelopment Sites reflects the prevailing low-rise urban form. Strategy 17.2 Development on strategic redevelopment sites or within activity centres should generally be no more than 5-6 storeys unless it can be demonstrated that the proposal can achieve specific benefits such as: • Significant upper level setbacks

• Architectural design excellence • Best practice environmental sustainability objectives in design

and construction • High quality restoration and adaptive re-use of heritage

buildings • Positive contribution to the enhancement of the public domain

• Provision of affordable housing.

19 Policies for Collingwood at Clause 21.08 show the site as “Non-residential” and “Improve the interface of development with the street”. The subject land is within an identified precinct bounded by Johnston Street, Wellington Street, Victoria Parade and Smith Street with policies:

• Maintaining the varied profile of the skyline and the built form character of Smith Street.

• Ensuring that no new development presents as a dominating built form along Smith Street.

• Retaining the prominence of the key ‘icon’ (landmark) buildings in the Smith Street streetscape such as Pattersons, Safeway, Post Office.

• Maintaining the Foy and Gibson complex of buildings as a large dominating visually cohesive group of buildings.

• Retaining the uniformity of the streetscapes associated with the Foy and Gibson buildings.

• Ensuring new development respects the scale of adjoining existing clusters of low rise residential development

20 There is no local policy otherwise citing a “preferred character”.


21 DDO2 relates to the eastern part of the subject land. Together with other lots to the north, south and the east side of Wellington Street, it is part of the “Main Roads and Boulevards” Schedule 2. Design objectives address the image and heritage character that contribute to Yarra’s identity. In addition, they address high quality contemporary architecture and a high level of community safety and comfort. The decision guidelines include:

• The contribution of the proposal to the streetscape.

• The design, height and visual bulk of the development in relation to surrounding land uses and developments.

• The design, height and form of the development in relation to the built form character of the street.

22 DDO11 applies to many properties on the east side of Wellington Street (aligned with the CZ2 Gipps Precinct, which excludes the Yorkshire Brewery land which is also MUZ). It is more prescriptive than DDO2 insofar as it defines a preferred future character:

A built form business and commercial environment which builds on the existing fine grain industrial nature of the area that allows for innovation and interest. A vibrant and safe street environment due to an increasing amount of street oriented development, particularly on Gipps and Langridge Street.

A consistent streetscape with active street-frontages and well articulated buildings with street facades built to a height of up to 3-4 storeys. Taller built form will be set back from property boundaries and spaced to create new interest and variety in building forms.

23 DDO11 is a relevant contextual consideration with respect to the future development outcome envisaged for the environs of the subject land. It applies to the blocks opposite on the east side of Wellington Street with the expectation of a three to four storey street wall that contrasts with the unspecified street wall for the subject land and properties on the west side of Wellington Street under DDO2.

24 Built form and design policies for Yarra are further expressed in various ways through Clauses 21 and 22.10, with the objectives of Clause 22.10-2 providing a useful overview of the outcomes being pursued:

• Ensure that new development positively responds to the context of the development and respects the scale and form of surrounding development where this is a valued feature of the neighbourhood character.

• Ensure that new development makes a positive contribution to the streetscape through high standards in architecture and urban design.

• Limit the impact of new development on the amenity of surrounding land, particularly residential land.


• Design buildings to increase the safety, convenience, attractiveness, inclusiveness, accessibility and ‘walkability’ of the City’s streets and public spaces.

• Create a positive interface between the private domain and public spaces.

• Encourage environmentally sustainable development.

25 There are many policies which we do not recite but which reinforce the above objectives such as Clause 22.10-3.4 Street and Public Space Quality. We have considered these and related decision guidelines.

Other policy and documents 26 Through the course of submissions and evidence, we were referred to other

policies and documents including:

• Urban Design Charter for Victoria 2012;

• Smith Street Structure Plan which has been the subject of Amendment C140;

• Inner Melbourne Action Plan;

• Guide to Best Practice for Waste Management in Multi-Unit Developments, Sustainability Victoria.

27 The Charter has status as a document cited in Clause 15.01-2. Through policy, we must also consider Design Guidelines for Higher Density Residential Development.

28 The other documents are noted. As far as we are aware, they are not incorporated or referenced in the Yarra Planning Scheme. A Panel recommended that Amendment C140 be abandoned.

IS THE LAND USE MIX ACCEPTABLE OR SHOULD THERE BE A STRONGER REPRESENTATION OF COMMERCIAL/EMPLOYMENT USES? 29 While the Council raised no concern about the land use mix, Respondent

Objectors, and particularly Mr Connor and Ms Long, referred to the loss of commercial floorspace and the ongoing loss of employment opportunities in this mixed use area. They described the value placed by the local community on diversity and co-location of housing with businesses. They are concerned that the inclusion of ground floor commercial uses is not enough and that, if further replicated over time, the locale will be become a dormitory suburb rather than retain the eclectic mix of uses.

30 Former and historic commercial and industrial uses on large sites are vacating this area. The Yarra Planning Scheme recognises the importance of the commercial and industrial sectors and a shift to service businesses. Through the application of the Commercial 2 Zone, the planning authority has set aside areas to allow a combination of industrial and office use.


31 The Gipps Precinct, east of Wellington Street, is such an area. Gipps is envisaged as retaining an industrial character while evolving to provide a wider range of employment opportunities including service business and offices uses. Residential uses are not directed to these locations. We appreciate that this is not the same as having dwellings with businesses in mixed use buildings, however, in this case where the use of the land for dwellings requires no planning permit (and noting that the Mixed Use Zone is part of the residential suite of zones), there is not scope to refuse this application because of the land use mix.

32 Somewhat ironically to the case advanced by Respondent Objectors is that the use of the land for a shop does trigger a permit because the floor area is greater than 150 square metres.

33 Overall, therefore, the policy focus is on dwellings with the aim for at least ground level commercial uses to assist to facilitate street activation. In principle, the land use mix in this application is acceptable insofar as it seeks shops at ground level and dwellings above.

34 Reference is made in some of the material before us that the proposal facilitates strategic goals with respect to affordable housing. Affordable housing is an important theme in planning policy. It is a term used in various ways. The proposal before us is not, for example, associated with a recognised social housing provider nor put forward as an affordable housing project per se. The role that this proposal seeks to play is to contribute to diversity in housing. This is consistent with housing choice and affordability outlined in Plan Melbourne which includes additional housing being located closer to jobs, transport and services. The subject land is well placed in this respect and its relationship to the Gipps employment area is relevant in addition to the proximity to activity centres and central Melbourne.

IS THE USE OF WELLINGTON STREET FOR ALL VEHICLE ACCESS ACCEPTABLE? 35 The proposal provides all vehicle access to a four level basement, with 109

car spaces, from Wellington Street. No other vehicle access point is proposed. The access is at the north-east corner of the site. It is a 7.1 metre wide opening with abutting service areas and a substation. This part of our reasons addresses this access from the perspective of the function of Wellington Street; we address design considerations below.

36 All parties agree that the location selected for the vehicle access is logical based on the slope. Mr Bisset explained the proponent’s understanding that the Council considered the proposed access from Wellington Street to be acceptable and only more recently did the applicant become aware that this is a “deal-breaker”. This understanding was based on the application plans that had two vehicle access points (Wellington and Langridge Streets) and the comments on that proposal by the Traffix Group and an internal referral in February and April 2015.


37 The Council’s case, with which Respondent Objectors agree, is that the use of Wellington Street is not acceptable now that the Copenhagen-style bike lanes have been installed. Ms Dunstan’s evidence addressed the rationale for this position based on safety considerations such as the aim to move cyclists off roads such as Smith Street where there are high levels of cyclist accidents. Wellington Street is being promoted as a key north-south cycle link with expectations of growth in bicycle use by people of all abilities.

38 The Applicant’s case is advanced through expert evidence on the basis that all vehicle access from Wellington Street is acceptable. Mr Hunt noted that there are existing crossovers and intersections with side streets along Wellington Street with the bike lanes providing awareness for cyclists and drivers as to crossing points. His evidence was that the Copenhagen lanes provide a safer outcome for cyclists compared with standard on-street bike lanes with greater visibility. His evidence notes Ms Dunstan’s evidence that shows vehicle access is possible from Cambridge Street. Mr Hunt’s evidence included that vehicle access can be moved should the Tribunal consider Wellington Street to be unacceptable.

39 Taking access to a basement from the low point is a logical design decision. In this case, however, there is a consistent policy theme emphasising the importance and role of Wellington Street, and Langridge Street, for safer and enhanced cyclist movement. As we have indicated above, that is within Plan Melbourne8 as well as through local policy9. Wellington Street is given a regional role in an environment where cyclist numbers are increasing and alternatives to private vehicle use are strongly advocated through Plan Melbourne and local policy10.

40 In our view, the strategic context is to limit the potential for conflict and, where there is a feasible alternative, it should be used. Planning policy is giving an express status to cycling in the context of a shared road environment. The situation bears similarities with a Road 1 Zone where there is a strategic aim to limit new crossings where vehicle access to a lower order side street or lane can be achieved.

41 There are existing crossovers along Wellington Street which have been accommodated by the recently installed bicycle lanes. However, as some parties fairly observed, these are often to properties with only a few on-site car spaces. By contrast, the basement in this application would add a wide driveway to service around 100 cars with its entry a short distance to the north of the signalised intersection of Wellington and Langridge Streets. At the hearing, comments were offered by the traffic experts and Respondent Objectors about the likelihood of cars seeking to “beat” cyclists through the intersection so as to turn into the car park. There are varying opinions about who is required to give way under the road rules.

8 Map 21 on page 93 as potential bicycle network enhancements and described on page 94 as (inter alia) strategic cycling

corridors that provide viable alternatives to public transport and private vehicle use in new urban renewal precincts Collingwood is identified as an urban renewal precinct in Plan Melbourne..

9 In general policy terms such as Clause 21.06 and specifically with respect to Langridge Street based on Clause 21.08-5 Figure 13.

10 For example, Clause 21.06.


42 Taking into account the above, we are strongly of the view that the introduction of this new vehicle access servicing this sized car park is not acceptable. It would not support planning policies for Wellington Street expressed through Plan Melbourne in the context that there is an alternative driveway option without any conflict or direction interaction with cycle lanes. The proposal is inconsistent with the achievement of the stated objectives.

43 We are not in a position to describe or prescribe the form of an alternative access. Having regard to Ms Dunstan’s evidence, Cambridge Street can physically work despite the level changes. Mr Hunt agreed this is so. Ms Dunstan’s evidence includes a plan to demonstrate this but she emphasised in her oral evidence that the plan is not fully developed. It does not deal with other considerations such as on-site waste management and layout modifications she recommended11. There are wider implications for the layout with respect to the number of on-site car spaces (which would be reduced), and the location of Apartment 1.01.

DOES THE PROPOSAL RESULT IN ACCEPTABLE URBAN DESIGN AND BUILT FORM OUTCOMES? 44 Broadly, the proposed building rises from its Cambridge Street interface,

with a four storey street wall, to a nine storey street wall at the corner of Wellington Street and Langridge Street. The building is capped with a three storey curved form. The building has a six storey wall to its northern boundary as it presents to Wellington Street. A curved solid wall to the corner of Wellington Street and Langridge Street provides for an artwork for which Mr M Johnson has been commissioned. A smaller wall fronting Cambridge Street is also for an artwork by Mr Johnson. The ground level provides for vehicle access and a substation fronting Wellington Street as well as part of a shop that curves around the corner into Langridge Street. Given the topography, there is a section of wall at the western end of the shop leading to a second shop that extends into Cambridge Street. All dwelling access is from Cambridge Street. The Langridge Street façade is sought to be separated into three sections through rebates, varied materials, colours, finishes and modulations through the design.

45 The dispute about the building’s form and urban design is focused on the following:

• The level of activation to all street frontages given the location of vehicle access, the substation, shop entries and only one residential entry.

• The height and form of the street wall height particularly along the site’s longer Langridge Street façade and also to the shorter Wellington Street façade.

11 Mr Hunt did not agree with all of the recommendations such as with respect to the internal signalling system.


• The curved concrete wall to the Langridge Street/Wellington Street intersection, to a height of nine storeys, for use as one canvas for artwork.

• Other sections of blank wall including to Cambridge Street for a smaller artwork and along parts of the northern elevation.

• The overall height of the building to 12 storeys and the inclusion of the three top floors of the building, as a curved cap.

• The architectural quality and whether the high quality or excellence sought by the Scheme has been achieved.

• The impacts and acceptability of shadowing on the south side of Langridge Street during the day at the equinox.

• The interface with future development sites to the north and specifically whether equitable development opportunities are respected.

46 The Council considered that a seven storey street wall is an appropriate starting point for this site with the ability to step up to the main street corner. Ms Marcus also emphasised that the Council does not oppose a 12 storey building per se but has issues with this design response as we have summarised above. These issues were addressed through Mr McGauran’s evidence. Mr McGauran emphasised the importance of the ground level activation and explained his opinion that the development should not cast a shadow over the footpath on the south side of Langridge Street at the equinox between 11 and 3pm given active uses are desired on that site too. He recommended multiple changes to the proposal including to the ground level treatment, and particularly relocating the substation and vehicle access. Among his recommendations with respect to the building form were removing the building cap, modifying the art wall, and modifying the upper levels of the Langridge Street façade by removing two units at level 8. He was also critical of the layout of several units at levels 1-8 which face inward and to the west. Mr McGauran’s evidence was that these units should be reoriented and face north to provide for equitable development opportunities for the property to the north-west at No. 72-94 Cambridge Street.

47 Mr Connor, through the evidence of Mr Czarny, examined some of the broader townscape considerations including the fact that the subject land is toward the lower part of the slope down from the west to flatter land east of Wellington Street. Mr Czarny’s criticisms covered some similar points as those of Mr McGauran. They included the internal layout, the blank corner wall, and a lack of reference to the context and emerging new buildings that reference the valued industrial setting. He considered the proposal presents as an overwhelming mass, singular form in oblique views, and “interrupts the order of anticipated scale and form”. Like Mr McGauran, he did not consider that the proposal represents the high quality or excellence sought by the Scheme because of the impacts on the private and public realms.


48 Other Respondent Objectors agreed with the Council’s opposition to the proposal but not on some key points. They relied on the Scheme’s policies, including Strategy 17.2, DDO2, and development that has occurred to date, to support their view that development to four – six levels is an acceptable response to the features of the area, dominant forms such as Foy and Gibson, and policy outcomes sought by the Scheme. While they agreed with Council as to the matters in issue they did not agree that the changes sought by Council, as advanced through Mr McGauran’s evidence, go far enough. They argued (inter alia) that the building is not of a human scale, is still too dominating, and does not reflect the Collingwood character that other new developments have achieved.

49 The Applicant’s responses to criticisms of the building form, architecture and urban design outcome were made through the evidence of Mr Sheppard and Ms West in particular. These witnesses concluded the proposal is acceptable as presented having regard to the site’s physical and strategic contexts. Mr Sheppard’s evidence provided an indication of how the vehicle access to Wellington Street can be treated in design terms and also proposed relocating the substation to Langridge Street. Mr Sheppard’s evidence gave weight, inter alia, to the site’s location on the corner of a main intersection with grounds, in urban design terms, to mark the corner. He referred to seven storeys being the evolving podium height in this area and said the progression to nine storeys in this proposal is acceptable on this site. Neither Ms West nor Mr Sheppard believed that the proposal would offend principles relating to equitable development opportunities and both stated that layout changes sought by Mr McGauran for inboard units would be worse because north-facing units would have no solar access and because of the likely form of a building at No. 79 Wellington Street.

50 No party relied on the Yorkshire Brewery project as a precedent. All recognised the different features of that site, including the extent to which it is set off the main road network, and benefits it achieves including the restoration of State heritage assets and the provision of public open space.

51 Further, substantial, development will occur in this locale in response to the policy framework that applies and mindful of the absence of constraints found in other areas such as Heritage Overlays. This is the time to ensure that outcomes accord with, or do not undermine, the aims of policy with respect to streetscapes and the public realm. These policies reflect good urban design principles as the expert witnesses all agreed. The role of Langridge and Wellington Streets is articulated with respect to cyclist and pedestrian enhancements. While neither street is of a higher order such as along Smith Street within the activity centre, we have concluded that, based on policy, both streets are given an important future role. This is not just about better outcomes compared with blank and lifeless ground level treatments that might exist today. It is about creating a high level of amenity through activation and amenity. Solar access is part of achieving the role envisaged for them in policy notwithstanding that there is no prescriptive policy or standard on this matter in the Scheme on this point.


52 Having analysed all of the material and evidence, we accept many of the points made by the Council and agreed with the Applicant. We find the following to be acceptable:

• A lower street wall to the western, higher, end of the site which interfaces with the lower rise forms in Cambridge Street and then steps up along Langridge Street moving east.

• The adoption of seven storeys as a street wall to the Wellington Street elevation mindful of development permitted and constructed further north along Wellington Street.

• The minimisation of vehicle crossovers, to one.

• The use of zero lot lines to all ground floor frontages that responds to the hard edged pattern of development.

• The concept of breaking up the longest, Langridge Street, façade into three discrete components.

• The concept of marking this corner of the intersection through interesting urban design responses. These do not demand height. The notion of a quality artwork that reinforces the built form and industrial heritage would, itself, provide a valued marker if well executed. We accept that Mr Johnson has the credentials and local knowledge to deliver such an outcome and, on that basis, do not consider the size and height of the ‘canvas’ is too large. The artwork is intended to be permanent and not akin to an LED sign of the type in Times Square to which it was compared in terms of its size at the hearing. We reach the same conclusion with respect to the smaller ‘canvas’ along the Cambridge Street frontage.

53 We do not consider the proposal unreasonably affects equitable development rights for properties to the north and north-west. The inboard units would enjoy a better amenity than would be the case if reoriented to the north. We note the agreement reached with Mr Wu. That is not determinative on this point. We have, however, been persuaded by Mr Sheppard’s analysis of the circumstances of the adjacent lots and modifications to the unit layout that he recommended. Changing the unit layout to a northern orientation may be worse for the occupants of the units and create greater pressures with respect to protecting amenity when contemplating the redevelopment of the land at No. 79 Wellington Street. There is greater scope for spacing to the north-west where a corridor between developments is likely. That would provide better daylight and potentially some solar access. Having said that, redesigning the building would give the potential to remove the inboard units. With three street frontages, it should be possible to avoid this outcome.

54 We do not consider the proposal jeopardises the relationship to prominent Foy and Gibson buildings. This was not a ground advanced by the Council. The site’s separation from this precinct is important in our conclusion on this point.


55 Despite these findings, we share many of the concerns about the design solution identified by the Council including through its expert evidence. Specifically:

• We are not persuaded that the overall height of the building to 12 storeys and the inclusion of the three top floors of the building, as a curved cap, are acceptable. The lower forms of the building, up to the nine storey parapet, appear ordered, well articulated and each individual form appears respectful of the others. The upper three levels, by contrast, appear alien to the lower forms and confuse the overall built form. This, together with our later comments about how these levels add to the shadow of the 9th level parapet further reinforce to us that, in the form presented, they are not acceptable.

• Additionally, taking into account the aims of policy, and the likely outcome of street walls on the east side of Wellington Street and moving along Langridge Street eastwards, we find the proposal is too dominating to the public realm as a consequence of this built form response.

• The height and form of the street wall height to the shorter Wellington Street façade is unacceptable. We consider there should be a more obvious step from seven storeys to nine storeys within the site.

• Reducing the height of the Langridge Street façade, accentuating stepping, and deleting the three level building cap, would have the benefits of reducing the extent of overshadowing on the south side of Langridge Street. We believe that the amount of overshadowing the proposal causes is an undesirable outcome when taking into account the clear aims to enhance the public realm of streets that are given an important pedestrian role and which lead into and out of the Major Activity Centre.

56 The criteria in Strategy 17.2 are relevant to our assessment but they are not exhaustive. A design might achieve none, some or all of the criteria and be found to be acceptable. Given that the criteria were the subject of much discussion in submissions and evidence, we conclude as follows on the proposal’s response to them:

• Significant upper level setbacks. The proposal can be modified to achieve significant upper level setbacks notably along the streetscape facades whereby the building would scale up to the corner. We are not persuaded that the form and setbacks of the top three levels achieve a sufficiently recessive upper level rather, the form adds to the bulk and massing in a prominent location.

• Architectural design excellence and high standards in architecture and urban design. The submissions as to what this means focused on the findings of the Tribunal in cases such as Richmond Icon12.

12 Richmond Icon Pty Ltd v Yarra CC [2013] VCAT 298.


We do not have concerns with the architecture per se, rather, we do not consider the proposal achieves the outcomes sought by the Scheme with respect to high standards and quality because of its unacceptable interface with the public realm. As we have stated, this is a strongly emphasised outcome not achieved in this permit application. There are also issues with respect to internal amenity, which we refer to below, which underscore our finding.

• Best practice environmental sustainability objectives in design and construction. We accept that the proposal has some positive outcomes in this respect but, taking into account the assessment by the Council, we are not persuaded best practice is achieved. We have assumed this could be improved by changes and details that could have been addressed in permit conditions.

• Positive contribution to the enhancement of the public domain. We have accepted positive elements of the design include its treatment to Cambridge Street and the potential interest associated with the artwalls. However, it is self evident from the above findings that we are not persuaded that the proposal makes a positive contribution because of the vehicle access issues, insufficient activation, building dominance and shadowing impacts.

• Provision of affordable housing. We have discussed this earlier in these reasons. We have accepted the proposal would add to housing diversity.

57 We have not found other reasons or specific benefits associated with the proposal’s design response or its public realm outcomes to set aside the above findings so as to determine that the proposal is acceptable.

58 In conclusion, we are not persuaded the proposal achieves acceptable design and built form outcomes having regard to the strategic directions being pursued through local policy for this area. Some of these matters could be addressed through permit conditions, potentially adopting building envelope modifications recommended by Mr McGauran, but not all can be resolved through conditions.

IS THE INTERNAL LAYOUT ACCEPTABLE INCLUDING UNIT AMENITY? 59 The main concerns to which the Council, and Mr McGauran, referred about

the layout of the development focus on the amenity of several apartments, ESD performance, corridor widths, and the interface between units and communal spaces. There was also commentary on aspects of the commercial tenancies.

60 Given our overall conclusion in this proceeding, we do not review this finer level of design detail and resolution. Suffice to say that improvements could clearly be made, such as to corridor widths, as acknowledged through the evidence of Mr Sheppard and Ms West. We believe such improvements would enhance the amenity for occupants of the units.


61 We have also commented on the inboard units above and, although they do not provide a reason why we have refused a permit, we think redesign could avoid units limited in their outlook to another development site.

ARE ARRANGEMENTS FOR LOADING AND WASTE COLLECTION ACCEPTABLE? 62 Arrangements for loading and waste collection, off-site, are of concern to

Respondent Objectors. Ms Port submitted that so many bins will be a physical obstacle to all street users including cars, cyclists and pedestrians taking into account the narrow footpath widths. In addition, collections will delay motorists and have the potential to create odour and excessive visual clutter. The potential for other developments to propose on-street waste collection underlies the concerns as well. The consequent need for waste collection to occur on-site is the outcome sought. Residents also sought an on-site loading bay to assist with resident deliveries and removal vans given that there is no loading area available near to the proposed access.

63 The Council and Applicant agreed that waste collection can, and preferably should, be undertaken on-site by a private collection service. Ms Dunstan and Mr Hunt stated that this can be achieved through modifications to the application plans. They did not agree that a loading bay should be provided on the subject land, both saying that this would not be the norm for a development of the type proposed with limited shop areas. Ms Dunstan further commented that no waiver of a loading bay is required for residential uses under the Scheme.

64 On its face, it appears that on-site waste collection could be accommodated with a redesign of the internal layout of the car park, a waste management plan, and car parking management plan, to address detailed requirements. We agree with the parties that on-site waste collection should be required as there is insufficient kerbside in the context of a development of the size proposed without negative impacts on the public realm. On-street waste collection would impede pedestrians and potentially other users and we do not consider this to be acceptable.

65 In addition to the requirements of Clause 52.07, Clause 22.10 addresses loading bays for non-residential development. It states that they should:

• Be clearly separated and screened from pedestrian areas; • In the case of larger sites, allow for vehicle turning to prevent

reversing onto and off the site; • Provide for loading and unloading to occur entirely off street;

and • Be concealed from the frontage and street corners.

66 Having regard to the submissions and evidence, we do not consider it necessary to provide an on-site loading bay. The commercial component within the proposed development is limited to modestly sized retail premises.


67 Deliveries would be most likely to be made by small vehicles that can utilise existing on street spaces. Deliveries often occur at times when there is less pressure for on-street parking from other users. An on-site loading bay would be likely to have an even greater impact on the streetscape and public realm than the proposed access arrangements.

68 Deliveries and loading associated with the residential use are also possible on-street and, if necessary, the Council can change parking signs to provide a loading bay. It is not possible, however, to achieve such a bay on the same side of Wellington Street as the proposed access. This is because the new bicycle lanes have removed kerbside parking. Loading would therefore need to occur in Langridge Street. We do not agree with the Council that this is practical. Loading may be possible on-street in Cambridge Street using the residential access but this becomes a lengthy trip for dwellings in the eastern part of the site.

IS THE REDUCTION IN PARKING ACCEPTABLE? 69 It is common ground between the Council and Applicant that the proposal

provides sufficient parking to service the proposed uses and that there is a surplus of spaces based on expected demands having regard to the empirical assessment. The Council and Applicant agreed that changing vehicle access to Cambridge Street would be likely to result in reduced on-site parking supply but that could be accommodated with respect to the commercial uses.

70 Concerns about parking supply, and impacts on on-street parking, were identified in the some statements of grounds. Given our overall conclusion in this proceeding, we do not analyse this issue in detail in these reasons but do record our acceptance of the Council’s and Applicant’s position. This is a locality which has ready access to a range of public transport and, based on the expert evidence presented, the proposal has sufficient parking for residents, the shops, and some residential visitors.

WHAT IS THE TRIBUNAL’S CONCLUSION? 71 The subject land is a suitable candidate for redevelopment. The

achievement of higher density housing and a building of some scale and height are acceptable. We have, however, found that the design response is not acceptable in a number of respects and most importantly its relationship to the street frontages, the building envelope and urban design outcomes. We agree with the much (but not all) of the case advanced by the Responsible Authority on these matters.

72 We consider that modifications could be made to the permit application to address a number of the unacceptable elements we have identified. For example, changes in the building envelope at the upper levels could be addressed by permit conditions as could, for example, variations to widen corridors.


73 Not all outstanding matters can, however, be addressed by permit conditions in our view. The most difficult is with respect to vehicle access to the site plus the revised ground level treatment including substation relocation and the introduction of residential entries to all street frontages. Our assessment is that there are too many uncertainties as to what the design outcome would be to address these modifications through permit conditions. Moreover, and importantly, relocating all vehicle access from Wellington Street to another street is properly a matter that should be shown in plans, fully assessed, and the subject of public notification. The latter point was stressed by Ms Marcus and it is a point with which we agree.

74 We have not been persuaded that pursuing relocated vehicle access through an interim decision is an appropriate way forward in this proceeding. Vehicle access for a basement serving some 100 vehicles is a significant change to a permit application in the context of the subject land and the streets involved. It may impact on other property owners and people who are not party to this proceeding.

75 We understand that the Applicant believes that the Council’s position has changed with respect to the suitability of Wellington Street for vehicle access. However, the Applicant’s case has been advocated to the Tribunal on the basis of Wellington Street being acceptable (while also acknowledging that Cambridge Street is workable as an alternative, if the Tribunal so decides, based on Ms Dunstan’s evidence). We do not agree that Wellington Street is acceptable for the proposed basement access. While we believe Cambridge Street is preferable for vehicle access on the basis of the material before us, we cannot be confident that we are apprised of all of the implications to direct this change be made through an interim decision. This is particularly because the traffic evidence has not fully analysed the option of using Cambridge Street nor are the design consequences (internal and external) clear. Vehicle access from Cambridge Street may be physically possible in terms of the proposed building but it may give rise to issues that have not been raised, explored or assessed to date. There are, importantly, potential impacts on other property owners/occupiers to consider when such a change to a permit application is contemplated.

76 Having concluded the permit application, as presented, is unacceptable and cannot be modified to be acceptable through permit conditions, it is not the Tribunal’s role to redesign the development through further opportunities to the revise plans and continue the hearing. Too many significant changes are required in this case. It is a matter for the proponent, should it wish to seek to pursue a modified version of the same building, to revise access arrangements through new plans that are considered in the context of a fresh permit application that also addresses other findings in these reasons. However, revising pedestrian and vehicle access also offers the opportunity for a different building and design response.


77 For these reasons, we will affirm the decision of the Responsible Authority. Margaret Baird Senior Member

Peter Gray Member

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