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 487 -497 Flinders Lane Pty Ltd v Melbourne CC [1998] VCAT 192 (10 September 1998)

Last Updated: 17 May 2000

IN THE VICTORIAN CIVIL AND

ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

PLANNING LIST

TRIBUNAL APPLICATION NO. 1997/91323

PERMIT APPLICATION NO. TP 97/881

HEARD AT MELBOURNE ON THURSDAY 16TH AND FRIDAY 17TH JULY 1998

TRIBUNAL

Jane Monk, Presiding Member

Ashley Pelman, Member

PARTIES

Applicant for Review/Permit Applicant  487 -497 Flinders Lane Pty Ltd

Responsible Authority City of Melbourne

Respondent/Objectors East Melbourne Group Pty Ltd and ors.

NATURE OF PROCEEDING

Application under Section 77 of the Planning and Environment Act 1987 for review of a decision to refuse to grant a permit.

PROPOSAL

To construct alterations and additions to the existing building, including the construction of two additional floors, to use the building for the purpose of 27 serviced apartments and one caretaker's house and to reduce the requirement for off-street parking.

THE LAND

Address

153 - 155 Wellington Parade South,

Jolimont

Area and Dimensions

The land, which is located on the south side of Wellington Parade South, between Jolimont Street and Agnes Street, has a frontage of 12.3m, a depth of 28.7m and an area of approximately 342sq m. Jolimont Lane, which has a pavement width of between 5.5 and 6.5m extends across the rear of the site.

PLANNING SCHEME AND ZONING

The land is within the Special Use Zone No. 10 of the Melbourne Planning Scheme. The purpose of this zone is:

"To provide for office development compatible with the character of the area and the amenity of the locality."

Within this zone, serviced apartment is an unspecified, Section 2 use for which a permit is required.

The site is also within an Urban Conservation Area No. 2 (UC2). The purpose of this overlay control, as set out at Clause 343 of the Scheme is:

"To conserve and enhance areas of architectural and historic significance and encourage development that is in keeping with them."

Unlike a UC1 area, within a UC2 area the external alteration or demolition of existing buildings does not require a permit. However, as with a UC1 area, the construction of new buildings and works requires a permit.

A permit is also required in the subject instance to reduce the car parking requirements of Clause 19 of the Scheme. Clause 19 requires that, except with a permit, land must not be used for flats - and serviced apartment falls within the definition of flat - unless two on-site car spaces are provided for each flat. With a permit this ratio may be reduced, pursuant to Clause 19-1, provided a ratio of 0.5 spaces per flat is achieved. Similarly, the requirement for a caretaker's house is one space reducing to zero spaces. The subject application makes provision for 14 spaces plus a staff car space and one small car space. The reduced requirement for 27 serviced apartments and a caretaker's house is 14 spaces.

Finally, the land is within two Height Control Areas, the controls for which are set out at Clause 331. The west side of the building is within Height Control Area No. 18 where the maximum height for a structure is 15m. The east side is within Height Control Area No. 14 where the maximum height is 12m. Not withstanding these height limits, a ministerial amendment, No. L264, was approved on 15 August 1997 which provides, in the case of the subject site only, that subject to a permit, the existing building may be extended to a maximum height of 24m if it is to be used for residential purposes and does not exceed a plot ratio of 6.5:1. The existing building has a parapet height of 19.14m with the lift motor and plant room attaining a height of 21.85m. The building as proposed to be extended will have a maximum height of 23.8m.

GROUNDS OF REFUSAL

1. The proposed development is bulky, visually intrusive and inappropriately designed in relation to the surrounding built form.

2. The proposed development is inconsistent with the purpose of Urban Conservation Areas of the Melbourne Planning Scheme.

3. The proposal will detract from the appearance and character of the Wellington Parade South streetscape and the locality.

4. The proposal would detract from the amenity of nearby residential properties.

5. The proposal provides insufficient car parking pursuant to Clause 19 of the Melbourne Planning Scheme.

6. The proposal fails to meet the layout requirements for the provision of on-site car parking pursuant to Clause 19 of the Melbourne Planning Scheme.

GROUNDS FOR MAKING THIS APPLICATION

1. The design of the proposal is appropriate having regard to the character of the area.

2. The proposal is appropriate having regard to the Urban Conservation Area provisions of the Planning Scheme.

3. The proposal will not unreasonably impact on the amenity of nearby residential properties or the area.

4. The car parking arrangements are adequate for the proposed use.

APPEARANCES

Mr Mark Dreyfus of Counsel instructed by Mr T. Pikusa, Solicitor for the Melbourne City Council, appeared on behalf of the Responsible Authority. He called Ms Meredith Gould, Conservation Architect, to give expert evidence.

Mr Arnold Dix of Counsel, instructed by Arthur Robinson Hederwick Solicitors, appeared for the respondent objectors. He called the following local residents to give evidence:

Ms Mary Maxwell, Ms Elizabeth Albrecht, Mr John Lee CBE, Ms Jill Hauser, Ms Anita Steinbarth and the Hon. James Guest.

Mr Ian McP. Pitt of Best Hooper Solicitors, appeared for the applicant company. He called the following persons to give expert evidence:

- Mr Des Grogan, Traffic Engineer

- Mr Andrew Rodda, Town Planner.

All advocates and expert witnesses tabled and spoke to written submissions or reports. These, together with the various plans, photographs and other documents tendered in the course of the hearing, as well as the written statement relied upon by Mr Lee, have been attached to the Tribunal file. An exception is the bundle of photographs tendered by Mr Dix. These may be collected from the Tribunal after 28 days of the date of this determination.

Following the hearing, and at the direction of the Tribunal, Mr Dix forwarded a list of the individual objectors, in addition to the East Melbourne Group P/L, being represented by himself. The Responsible Authority also forwarded details in respect of resident parking permits and the term "resident". This additional material has also been included on the Tribunal file.

Prior to making our determination we inspected the appeal site and surrounding area.

TRANSITIONAL PROVISIONS

This proceeding was lodged with the former Administrative Appeals Tribunal of Victoria. Following the coming into operation on 1st of July 1998 of Section 312 of the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 (the "Miscellaneous Amendments Act"), that Tribunal has been replaced by the newly created Victorian Civil and Administrative Tribunal. Clause 9(1) of Schedule 2 of the Miscellaneous Amendments Act provides that where the Administrative Appeals Tribunal had not begun to hear a pending proceeding, the proceeding is to be heard and determined by the Victorian Civil and Administrative Tribunal.

PRELIMINARY MATTER

At the commencement of the hearing Mr Pitt sought leave to amend the permit application by substituting new plans and by altering the description of the use from 28 serviced apartments and three flats to 27 serviced apartments and one caretaker's house. The amended plans had been circulated to all parties who had originally objected to the application. In essence the principal change was to the ground floor in that an area to the rear and originally shown as serviced apartments, was converted to a car parking area for six cars plus one small car space, all with vehicular access via an existing loading bay door to Jolimont Lane at the rear of the site.

Having heard submissions from Messrs Dix and Dreyfus, the Tribunal ordered that the application for permit be amended pursuant to Clause 64 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act by substituting the plans (reference Drawing Nos. TP8 to TP14 dated 29.6.98 Revision A) for those originally accompanying the application. The Tribunal's reasons for this order were given orally.

ORDER

The Tribunal orders that the application for review be upheld and in respect of the land at 153-155 Wellington Parade South, Jolimont, a permit is granted and directed to issue.

The permit will allow:

Alterations and additions to the existing building - including construction of two additional floor levels - use of the building for the purpose of 27 serviced apartments and one caretaker's house and a reduction in the car parking requirements of the Planning Scheme.

The following conditions will apply to the permit:

1. Prior to the commencement of the development hereby permitted the applicant shall submit to the Responsible Authority three copies of plans drawn to scale generally in accordance with the plans substituted by the Tribunal in Appeal No. 97/91323 but amended to show:

(a) The location of garbage storage;

(b) The position and dimensions of lift and air conditioning plant;

(c) The ventilation system for the basement and ground floor car park areas;

(d) A section showing the floor to ceiling heights in the basement;

(e) Details of the ramp grades to the ground floor car parking area in accordance with Australian Standard No. 2890.1, 1993.

(f) The car park entry door in the rear elevation.

The amended plans shall be to the satisfaction of the Responsible Authority and when approved shall be the endorsed plan for the permit.

2. The development as shown on the endorsed plans shall not be altered or modified except as provided for under Sections 60, 72 and 87 of the Planning and Environment Act 1987.

3. The ventilation equipment at ground and basement level shall not cause a nuisance to people beyond the site because of its discharge, noise, smell or otherwise.

4. Any noise emitted from the air conditioning or other plant installed at the subject premises shall not cause injury to or prejudicially affect the amenity of the locality by reason of the emission of noise.

5. All garbage and other waste materials shall be stored in the area set aside for the purpose to the satisfaction of the Responsible Authority.

6. No garbage bin or waste materials generated by the permitted use shall be deposited or stored outside the site and bins must be returned to the garbage storage area as soon as practicable after garbage collection.

7. The parking area must be kept available for that use at all times and the car parking spaces and accessways must not be obstructed or otherwise rendered inaccessible.

8. A convex mirror or other safety feature to the satisfaction of the Responsible Authority shall be fitted at the permit holder's expense in an appropriate position to assist drivers exiting the ground level car park in Jolimont Lane.

9. No persons occupying a serviced apartment shall apply for, hold, use, allow the use of or retain a resident's, visitor's, multi-use or other permit allowing parking in the street in the area bounded by and including Wellington Parade South, Jolimont Terrace, Jolimont Street and Jolimont Road (Brunton Avenue).

10. The external ledges to the west-facing windows on Levels 1 to 5 must not be accessible to occupants of the building except for maintenance purposes.

11. The development hereby permitted shall at all times comply with the approved plans and the conditions of the permit and be maintained to the satisfaction of the Responsible Authority.

12. The use of Units 1 - 27 shall be for serviced apartments, managed by a resident caretaker, and shall not be leased or otherwise occupied for long-term occupation.

13. Pursuant to Section 68(1) of the Planning and Environment Act 1987, the time for the commencement of the development hereby authorised is specified as two years from the date of issue of this permit and the time for completion of the development and commencement of the use is specified as two years from the date of such commencement.

The time within which the development is to be commenced or completed may on application made before or within three months after the expiry date of this permit be extended by the Responsible Authority.

REASONS

The order of the Tribunal was given orally on Tuesday 28th of July 1998. The Tribunal's reasons were also given orally. The following provides the basis for those reasons.

Having regard to the submissions and evidence the Tribunal finds that the principal issues for determination in this proceeding fall into the following five categories:

- Whether the height and bulk of the building as extended will cause the building to appear even more out of context with the character and appearance of adjacent buildings and the area having regard to the purpose of the Urban Conservation Area No. 2 and the height limits of the Scheme.

- Whether the provision to be made for off street car parking is adequate and appropriately laid out and whether the traffic likely to be generated will have an adverse impact on local access and vehicle safety.

- Whether the building will result in unacceptable overshadowing and overlooking impacts for nearby residents.

- Whether the use for serviced apartments is appropriate and the likelihood or implications of the apartments being used for permanent accommodation.

- Whether by providing openings in the western elevation, the development will compromise any future redevelopment of No. 157 Wellington Parade South.

Height and Bulk

Under cross-examination Ms Gould conceded that the design of the two additional floor levels - which are intended to present as a more lightweight structure on top of what is at present a bland and very hard edged structure - are an appropriate "architectural" response for this building. In her opinion however such a lightweight element would be better located lower down, that is to say as a replacement for the present top two floor levels rather than serving to add to the bulk of an already bulky building. In her view the additional height was unacceptable given the heritage significance of the precinct and the objectives of this Urban Conservation Area No. 2.

In the 166 Wellington Parade case (Appeal No. 97/89028) a new two storey structure to "finish" the previous Department of Agriculture building, was adopted. In that instance however the top two original floors were removed to make way for the new structure and so remain within the height limit which, in that part of Wellington Parade, east of the Hilton Hotel, is 45m.

We accept that the approach adopted for No. 166 Wellington Parade might be "better". Indeed we doubt whether the question of bulk and scale would have been an issue had that been what was proposed. This however is not the point. We must consider the proposal as put to us and in our opinion the question to be decided is whether the additional height and bulk will make so much of a difference to the visual impact of this building as to warrant a refusal of permit. Having inspected the area and studied the building from many vantage points, our answer is no.

In our opinion the additional height and bulk can be balanced against the better architectural resolution which these additions will give to the building. In our view the existing sense of bulkiness is exacerbated by the bland and hard edged manner in which the building interfaces with the skyline. The proposed additions, as illustrated in the photo montages tabled by Mr Rodda, will serve to break up these edges thereby relieving the sense of bulk.

Accordingly it is our conclusion that the subject development will not worsen the extent to which this building reads as an incongruous element and may even reduce that sense of incompatibility.

Car Parking and Traffic

It was Mr Grogan's evidence, based on surveys undertaken by his firm at the Metro Inn in Jolimont and from an inner metropolitan parking study of serviced apartments in South Yarra, that a ratio of 0.5 car spaces per serviced apartment would be more than adequate to meet the demands likely to be generated by this use. The further evidence of Ms Steinbarth confirmed these rates. Accordingly we find the provision of 16 spaces to be more than sufficient.

Mr Dreyfus suggested that the layout and dimensions of certain of the car spaces was inadequate and failed to comply with the standards set out at Clause 19 of the Scheme and, in respect of blind aisles, the relevant Australian Standard, AS 2890.1-1993.

The Australian Standard is not a document which we must give effect to when deciding whether or not to grant a permit pursuant to Clause 19. Having regard to Mr Grogan's evidence we are satisfied that the layout of the spaces and the dimensions can comply in all material respects. To the extent that some spaces may not comply - say for example Car Space 8 which will be more difficult to access, then we are prepared to treat these as sub-standard spaces.

Clause 19 of the Planning Scheme sets mandatory space and aisle width dimensions. The reason for this is that certain uses may commence without a permit subject to parking being provided in accordance with the standard requirements of the clause. A parking plan to the satisfaction of the Responsible Authority must be submitted and the number of spaces, dimensions and aisle widths would have to be complied with to avoid the need for a permit. If the number of spaces does not meet the standard requirement due among other things, to their being under dimensioned or less accessible, then a permit must be obtained to reduce or waive that requirement. We think it not unreasonable, in reducing or waiving, to have regard to the extent to which some spaces may almost comply. By way of an example this approach is frequently adopted in relation to tandem spaces. While tandem spaces fail to meet the access aisle specifications, their existence is had regard to when assessing the availability of spaces to serve a proposed use. Accordingly, to the extent that Spaces 9 and 15 are intruded upon by columns and the turning aisle to Space 8 is not met, we have taken note of this and find that it is better that they be provided as sub-standard spaces than deleted for reasons of non-compliance.

The objectors contended that the traffic likely to be generated by this use would compound existing local access problems in and around the appeal site - including in Jolimont Lane. Again, having regard to the evidence of Mr Grogan, we find no real basis for these concerns. It was Mr Grogan's evidence that the generation rate for these apartments would most likely be lower than the past generation rate as offices. Further, unlike an office use the peak generating times for the type of activity proposed here does not directly coincide with peak hour traffic periods. Accordingly, the most congested periods experienced in and around this precinct are unlikely to worsen as a result of this development. Indeed the evidence was that they may reduce.

Given the current low levels of off street parking for the office use and the evidence of Mr Grogan that the 16 spaces proposed constitutes a generous provision, then it is likely also that kerbside parking demands within the neighbourhood may reduce. Not withstanding this, we have included a condition preventing occupants from obtaining resident parking permits as, despite our confidence that such spaces may not be demanded, it acts as a guard against longer term changes.

Having inspected Jolimont Lane and given the narrowness of the footpaths and the prospect of reduced visibility for drivers exiting the car park, we think it useful to include a condition providing for a device, such as a mirror to assist exiting drivers.

Amenity Impacts

Mrs Maxwell, next door in Wellington Parade South and the resident objectors in Agnes Street, expressed concerns that they would suffer an unacceptable increase in overshadowing and overlooking.

The existing building has a wall of windows facing towards the rear of Agnes Street properties. The proposed development adds two further floors on this rear elevation and also provides for windows in the currently windowless western elevation. The concerns over increases in overlooking were based primarily on the longer periods of the day and week that serviced apartments may be occupied compared to an office although, in the case of Ms Maxwell, there was the prospect of new overlooking from the western elevation. With regards Ms Maxwell, we are satisfied given the set back of the windows, the fact that a balustrade will extend across each external floor and the fact also that the setback will not be accessible for use as a balcony, that downward views into Ms Maxwell's property will not be available.

The distance between the rear windows of the appeal site and the windows and open space areas of objectors exceeds the suggested distance in the Good Design Guide for overlooking without the use of screening. It is also a fact that overlooking currently occurs not only from the subject building but from and between existing properties, including the objectors' own dwellings.

If standard 9 to 5 weekday office hours were applied, then the potential length of time and the number of days that persons might be at these windows could be said to increase as a result of this development. There has been nothing in the past, however to prevent the existing offices from being used for longer periods and at weekends and indeed we observe that there is an increasing trend in this direction for office use. However, even if the perception of a different level of overlooking was valid - and in our opinion it is not- we would agree with Mr Rodda that long-term occupants, such as would be generated by an office, and who could become familiar with the neighbourhood and what went on within it, are possibly a greater privacy concern than short-term serviced apartment occupants. The latter are more likely to be using the building as a place to sleep in the course of other activities conducted away from the property.

The existing building, given its location to the north of many of the objectors' properties, already casts long shadows across these properties in the afternoon period. The new floors will increase the height of the building and as a consequence the length of these shadows. The fact that the new floors are set in from the parapet of the existing building and to some extent the fact that part of their area is already occupied by substantial plant room, means that the additional length of shadow will not be as substantial as if the extension had continued on the same plane as the external walls. This was well illustrated by the shadow diagrams tendered by Mr Rodda. Accordingly, whilst there will be a modicum of additional shadow length and at some periods width, we are satisfied that the additional shading is not unreasonable. The existing sunshine able to be experienced by Agnes Street residents will be very little affected, indeed we suspect it may go unnoticed.

Serviced Apartments

A serviced apartment is defined in the Regional Section of the Melbourne Planning Scheme as:

"A flat in a building containing other flats where domestic housekeeping or catering services are regularly provided to each flat by a person who does not occupy the flat." (Tribunal's emphasis)

A flat is defined as:

"A dwelling that has another dwelling above or below it. It includes a serviced apartment but does not include either dwelling of a dual occupancy."

The Tribunal is aware of a practice whereby developers of serviced apartments pre-sell units to individual investors subject to a lease agreement which provides for a company to manage the apartment for an agreed period. Indeed we were advised that this is to be the case here. It is our understanding however that should an individual decide not to renew their lease, they may choose to occupy the unit as their permanent home.

A question to be asked therefore is whether, in assessing the merits of this application, the apartments should be assessed as permanent or only short-term accommodation. Clearly the traffic and parking assessment has been based on serviced apartments having special or different characteristics from permanent occupancy flats, thereby warranting a lesser on-site parking provision.

In our opinion a similar distinction must be made in relation to the liveability of such accommodation. If these apartments were to be used for permanent accommodation we would have found the internal layouts of many to be unacceptable. A principal design fault is the access to daylight. Another is the absence of any open space and there is an issue also with the extent of overlooking between dwellings with windows to the west-facing light court. It is only the three apartments on the new top two levels which do not suffer from any of these problems.

The two units in the south-east corner of each floor have bedrooms without any external windows and no prospect of skylights. Furthermore, in the event of a future development on the Maxwell land to west, which built across the proposed light court, the units on all floors to the height of that future building would loose a significant proportion of light and all outlook. The central unit on each floor has no alternative light source. As noted by Mr Pitt, the Property Law Act 1958 would prevent the subject site from making any claim for an easement of light or air over the Maxwell's land. One can only speculate however whether unit owners would not object strongly should a town planning permit for such a development be sought.

It was Mr Pitt's submission that should a permit issue for these serviced apartments and to reduce the car parking requirements of the Scheme, that in the event of a unit being used for a purpose other than a serviced apartment - ie. for permanent accommodation - a further permit would be required to again vary the parking requirements of the Scheme. He observed also that under the Victoria Planning Provisions (VPP) based Melbourne Planning Scheme, which is likely to be approved before the end of this year, a similar situation would prevail.

The subject land is within a Business 5 Zone of the proposed VPP format, Melbourne Planning Scheme. A dwelling - and serviced apartment would fall within the VPP definition of dwelling - is a use for which no permit would be required. It was Mr Pitt's contention that Clause 63.02 of the VPP's would require the actual use "serviced apartment", to continue. Clause 63.02 reads:

"If a use of land is being characterised to assess the extent of any existing use rights, the use is to be characterised by the purpose of the actual use at the relevant date, subject to any conditions or restrictions applying to the use at that date, and not by the classification in the Table to Clause 74 or in Section 1, 2 or 3 of any zone."

Clause 63.04 goes on to state:

"A use in Section 1 of a zone for which an existing use right is established may continue provided any condition or restriction to which the use was subject and which applies to the use in Section 1 of the zone continues to be met."

It was Mr Pitt's submission that despite the provisions at Clause 31-01-1 which states that "a use in Section 1 does not require a permit ...", the provision of Clause 63-02 would prevent these serviced apartments from being occupied other than in accordance with the subject permit unless a permit issued to further vary the parking requirements of Clause 52.06-1 of the VPP's. As both Mr Dreyfus and Mr Dix agreed with these submissions we see no reason to take the matter further other than to suggest that the use "serviced apartment" may be better suited for inclusion in the "Group Accommodation" category of the VPP's. If in the future these units are to be regarded as "dwellings" and without the ability to have regard to their poor liveability for long-term accommodation then it seems appropriate, we suggest, for them to be placed in a more short-term accommodation category.

Future Impact on No. 157 Wellington Parade South

Ms Maxwell's property next door to the west has similar dimensions to the appeal site. Her single storey dwelling has been identified in the East Melbourne Conservation Study as a "D" grade building. The Urban Conservation Area No. 2 provisions do not prevent its demolition. It was Mr Dix's submission that a redevelopment of the Maxwell land to a height of 15m or, under the VPP format scheme to a greater height subject to the grant of a permit, would be possible. He contended that the subject proposal, by placing a wall of windows to within 1.5m of the boundary might prejudice the redevelopment opportunities for No. 157.

Having regard to the provisions of the Property Law Act 1958, we accept Mr Pitt's submission that the subject development would be prevented from claiming any rights to light across No. 157 and that the provision to be made for the light court could be adapted to provide some light penetration. We agree also that there is some likelihood that any future development on No. 157 would seek to make its own provision for a light court in a similar central position thus bringing advantages to both properties. We have said already that we regard the potential for loss of outlook and reduction in light to be a further reason for ensuring that these proposed apartments are used only for temporary accommodation.

CONCLUSION

The principal issues in this case were the visual impact of the development and the provision to be made for car parking. We have found, based on the evidence and submissions put to us, that the building as extended will not have a worse impact and that sufficient parking is capable of being provided. We are satisfied also that provided their use, and in particular those within the existing building shell, is for serviced apartments as presently defined by the Planning Scheme we see no reason to refuse a permit based on their suitability for short-term accommodation. We would not have been persuaded to grant a permit however for permanent accommodation flats and we are of the view that further consideration needs to be given to the nature of serviced apartments and whether it is appropriate that they fall within the "dwelling" group of the VPP's. We will forward a copy of this decision to the Minister for Planning and Local Government.

DATED

JANE MONK

PRESIDING MEMBER

ASHLEY PELMAN

MEMBER

JM:RB