MELBOURNE PLANNING SCHEME AMENDMENT C125 PERMIT APPLICATION 2008/0758 324-332 ST KILDA ROAD, SOUTHBANK
PANEL AND ADVISORY COMMITTEE (PAC) REPORT
JUNE 2009
MELBOURNE PLANNING SCHEME AMENDMENT C125 PERMIT APPLICATION 2008/0758 324-332 ST KILDA ROAD, SOUTHBANK
PANEL AND ADVISORY COMMITTEE REPORT
Mark Marsden, Chair
Ross Ramus, Member
Michael Read, Member
JUNE 2009
Contents
1. EXECUTIVE SUMMARY ...... 1
2. INTRODUCTION...... 5 2.1 The Amendment...... 5 2.2 Planning Permit Application ...... 7 2.3 Role of PAC...... 8 2.3.1 Terms of Reference ...... 9 2.4 Site and surrounds ...... 9 2.5 The Hearing...... 11 2.5.1 Hearings and inspections...... 11
3. APPROACH OF PAC IN PREPARING THIS REPORT...... 13 3.1 Introduction ...... 13 3.2 Submissions...... 13 3.3 Discussion...... 14
4. PLANNING PERMIT APPLICATION 2008/0758 ...... 16 4.1 Introduction ...... 16 4.2 Issues...... 16 4.2.1 Will the proposed development have an adverse impact on the cultural significance of the Shrine?...... 17 4.2.2 Will overshadowing have an adverse impact on the Shrine and reserve?..... 25 4.2.3 Is the proposed building of high architectural quality?...... 27 4.2.4 Will glare from the proposed building have an adverse impact on the Shrine and reserve and activities that occur in the Shrine environs?...... 29 4.2.5 Will light spill have an adverse impact on the Shrine and reserve and Melbourne Observatory? ...... 32 4.2.6 Are the amenity impacts acceptable, particularly on residents at 8 Dorcas Street?...... 32 4.2.7 Does the lack of a setback to the building to the north impose unreasonable constraints to future development to the immediate north? ...... 37 4.2.8 Are the traffic and car parking impacts acceptable? ...... 39 4.2.9 Is the proposed development in accordance with the existing policy framework? ...... 42 4.2.10 How should land surrounding the Shrine be managed? ...... 45 4.2.11 Does the CMP provide a statutory basis to consider the impact of the proposed development on the cultural significance of Shrine? ...... 47 4.2.12 Draft Planning permit conditions ...... 48 4.2.13 Need for an “informed judgement”...... 49 4.3 Conclusions and recommendations...... 49
5. AMENDMENT C125 ...... 51 5.1 Introduction ...... 51 5.2 Issues...... 51 5.2.1 Is the lack of planning controls relating to height on the subject land an anomaly or the strategic intention of MCC?...... 53 5.2.2 Is the omission of a height control a significant matter in determining appropriate future controls for the subject land? ...... 62
MELBOURNE PLANNING SCHEME AMENDMENT C125/PLANNING PERMIT APPLICATION 2008/0758 PANEL REPORT: JUNE, 2009
5.2.3 Does the existing policy framework justify the introduction of the controls proposed in Amendment C125?...... 63 5.2.4 Is the Incorporated Plan Overlay (IPO) applying to 236-254 St Kilda Road, Southbank (the Melburnian site) relevant in considering the policy framework applying to the area?...... 70 5.2.5 What is the relevance of the existing built form in determining the appropriateness of the controls proposed in Amendment C125? ...... 71 5.2.6 What is the importance of height controls relative to other urban design issues? ...... 77 5.2.7 What is the impact of potential towers on other sites on the subject land on the St Kilda Road streetscape and Shrine and reserve? ...... 78 5.2.8 What controls, if any, should apply to the subject land?...... 79 5.3 Conclusions and recommendations...... 84
6. RECOMMENDATIONS...... 86
Appendices
A TERMS OF REFERENCE...... 87
B LOCALITY PLAN ...... 92
C TABLE OF SUBMITTERS ...... 93
D MELBOURNE PLANNING SCHEME AMENDMENT C20 REPORT – APPENDIX D (SOUTHBANK PRECINCT BOUNDARIES) ...... 95
E DRAFT PERMIT CONDITIONS...... 97
MELBOURNE PLANNING SCHEME AMENDMENT C125/PLANNING PERMIT APPLICATION 2008/0758 PANEL REPORT: JUNE, 2009
Glossary
AHD Australian Height Datum
CBD Central Business District
CMP Conservation Management Plan
DDO Design & Development Overlay
DPCD Department of Planning & Community Development
IPO Incorporated Plan Overlay
LPPF Local Planning Policy Framework
MCC Melbourne City Council
PAC Planning & Advisory Committee
RSL Returned Services League
VPPs Victoria Planning Provisions
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1. Executive Summary
The Planning and Advisory Committee (PAC) has been appointed by the Minister for Planning to consider: an application for planning permit for a 117 metre high mixed use development lodged by Overland Properties Pty Ltd (Overland) (PPA 2008/0758); and a 60 metre discretionary height control with 25 metre podium to the land at 312‐332 St Kilda Road, Southbank as proposed in Amendment C125.
The PAC comprised Mark Marsden (chair), Ross Ramus and Michael Read and a Hearing was conducted over eight days between 23 March, 2009 and 3 April, 2009.
Melbourne City Council (MCC) prepared and exhibited the Amendment in response to its concern that an application for planning permit was pending and no height controls existed on the subject land. MCC contended that the absence of a height control was an anomaly in the planning scheme.
Over eighty submissions were received in response to the exhibition of the Amendment. Most of the submissions were from owners and occupiers of 8 Dorcas Street, 320 and 350 St Kilda Road. They generally opposed the 60 metre height limit and considered that the 36 AHD height control that existed prior to 1999 should be reinstated over the land.
In addition, submissions and objections were received from the Shrine of Remembrance Trustees (Trustees) and Returned Services League (RSL), which were concerned about the impact of high rise buildings on the cultural significance of the Shrine of Remembrance, which is located to the east of the subject land.
Over fifty objections were received in response to the public notice of the application for the planning permit. Most of the objectors were also the submitters who opposed the Amendment.
Overland contended that the proposal for the 117 metre high tower should be supported because it was consistent with the State and local policy framework, there were already high rise buildings in the area and that the building would not have an adverse impact on the cultural significance of the Shrine.
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In addition, Overland contended that the design of the building demonstrated architectural excellence which would contribute to the St Kilda Road streetscape and not result in unacceptable amenity for nearby residents.
In terms of approaching the PAC’s terms of reference, the Trustees contended that the PAC should first consider the planning policy framework because it is the policy framework that will inform the outcomes of the application for planning permit. While the PAC accepts the logic of this approach, it considers that the assessment of the application for planning permit has been important in understanding the impacts of height controls on the Shrine and St Kilda Road streetscape. Accordingly, the PAC’s approach in preparing this report has been to consider the application for the planning permit before considering the Amendment.
Having regard to the State and local policy framework, the submissions and evidence from the parties and from its own inspections of the site and surrounds, the PAC makes the following recommendations: the application for the proposed development should be refused because it would have an adverse impact on the cultural significance of the Shrine of Remembrance; Heritage Victoria should consider reviewing the Shrine’s Statement of Significance to address the impact of external development on the cultural significance of the Shrine; and Amendment C125 should be supported subject to a 60 metre high discretionary height control.
In making the above recommendations, the main conclusions of the PAC are that:
With respect to Planning Permit Application 2008/0758: in assessing the application for planning permit for the proposed development, it is necessary to weigh up the competing policies on promoting urban consolidation and protecting places of cultural heritage significance, and make a judgement against net community benefit; despite the lack of explicit planning controls to protect the Shrine other than the Shrine vista control which applies along the Swanston Street and St Kilda Road axis, there are general provisions in the planning scheme that require development to be respectful of culturally significant places; the features of the Shrine’s purpose, design and setting enhance its perception as a culturally significant place that provides opportunities
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for individual contemplation and reflection, for solemn group ceremonies and to educate the community about the events that it commemorates; the proposed development would have an adverse impact on the cultural significance of the Shrine because it would cause a substantial increment to the building bulk visible from the western forecourt, which is one of the most important areas within the Shrine grounds for commemoration and reflection; while shadows from the proposed building may impact on people’s experience of the Shrine, due to the Shrine’s mature landscape setting where existing vegetation already casts extensive shadow, it is difficult to relate this to the impact on the Shrine’s cultural significance, and is considered to be a less critical issue; and the proposed development would result in a net community disbenefit.
With respect to Amendment C125: there were planning controls restricting height of buildings that applied to the subject land at least up until the time the new format planning scheme was introduced in 1999; the current absence of a height control on the subject land appears to be an anomaly in the planning scheme which Council had unintentionally failed to address in a municipal‐wide review of height controls (Built Form Review ‐ Amendment C20); notwithstanding the lack of planning controls regarding height, a clear task in the terms of reference is to consider appropriate planning controls for the subject land to apply in the future; in considering suitable controls for the subject land, it is appropriate to consider the current State and local planning policy framework objectives and strategies; further, it is also appropriate to consider the existing built form in the surrounding area, which includes some buildings with tower elements that significantly exceed existing height controls; having regard to the current State and local policy framework, including the current 60 metre discretionary height control applying in the area generally bounded by St Kilda Road, Coventry Street, Wells Street and Kings Way, a 60 metre height discretionary height control should apply to development on the subject land; the recommendation for a 60 metre height control is also appropriate notwithstanding the existence of high rise buildings in the area; and subject to the consideration of any future planning application, a 60 metre discretionary height control applying to the Amendment area
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would not have an adverse impact on the cultural significance of the Shrine.
In reaching a conclusion that the proposed development would have an adverse impact on the cultural significance of the Shrine, the PAC agrees with the statement made by the Shrine’s planning expert that the ultimate consideration as to whether a permit should be granted for the development requires an “informed judgement”. While such an approach is largely subjective, in the PAC’s judgement the proposed building would have an overwhelming presence from significant viewpoints from the Shrine despite the existence of the two other towers from those viewpoints.
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2. Introduction
2.1 The Amendment
Amendment C125 to the Melbourne Planning Scheme, as exhibited, proposes introducing: Design and Development Overlay (DDO – Schedule 43) to 312‐332 St Kilda Road, Southbank.
Schedule 43 to the DDO contains a discretionary height control of 60 metres with a 25 metre podium.
The planning authority is Melbourne City Council (MCC).
The Amendment was exhibited from 17 April, 2008 to 21 May, 2008. A total of 83 submissions were received. From the MCC’s Planning Committee report dated 8 July, 2008 Council officers provided the following summary of submissions: · The majority of submissions were from owners and occupiers of apartments at 8 Dorcas Street, 320 and 350 St Kilda Road. They generally opposed the 60 metre height limit and considered that the previous height limit that applied up until 1999 should be reinstated; · The submission on behalf of the owners of 328‐332 St Kilda Road (i.e. the applicants for the planning permit) also did not support the height control. They consider that the Amendment should be abandoned or amended to contain no maximum height limits; · The submission on behalf of the owners of 312 St Kilda Road questioned the justification for establishing the proposed height control particularly in the absence of any built form review; · The Shrine of Remembrance Trustees support the introduction of a height control for the site. However, their position, after reviewing the effects of shadows on the Shrine and reserve, is that the height limit should not exceed 36 metres above AHD and buildings should not cast shadow onto the Shrine reserve before 4pm at the equinox; · The City of Port Phillip questioned the justification for the 60 metre height limit and why the original height of 36.05 metres is not being reinstated on the land. They consider that the lower scale surrounding the site has not been taken into account.
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More specific issues raised in submissions included: potential loss of views towards the Shrine and CBD, should buildings of 60 metres be allowed on the subject land; potential loss of natural light; effect on the St Kilda Road streetscape, including concerns that the Amendment did not include setbacks for tower and podium elements and that if all four sites were developed there could be a wall of buildings presenting to the streetscape; the Shrine of Remembrance Trustees expressed concern that a 60 metre high building will result in shadows that will intrude into the reserve just before 3pm at the equinox and more substantially at 4pm; potential increase in traffic and parking congestion; and decrease in property values.
Council resolved on 8 July, 2008 to: Request the Minister for Planning exercise his powers under section 20 of the Planning & Environment Act 1987 to prepare and approve an amendment to the Melbourne Planning Scheme. The planning scheme amendment would seek to apply a mandatory height control of 36.05 metres at AHD to the land at 312‐332 St Kilda Road, Southbank and to amend the Municipal Strategic Statement accordingly, so that it reflects the expected built form outcome for the land.
The wording of the MCC’s resolution was confusing and did not properly relate to the provisions of the Act. However, following DPCD correspondence to the MCC seeking clarification of its resolution, the Council responded as follows: We hereby wish to clarify that the City of Melbourne requests the Minister for Planning to exercise his powers under section 20 of the Planning & Environment Act 1987 to prepare and approve an amendment to the Melbourne Planning Scheme. The planning scheme amendment would seek to apply a mandatory height control of 36.05 metres at AHD to the land at 312‐332 St Kilda Road, Southbank and to amend the Municipal Strategic Statement accordingly, so that it reflects the expected built form outcome for the land.
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2.2 Planning Permit Application
Planning Permit Application 2008/0758 was submitted on 27 June, 2008 and proposes a 31 level mixed use tower of approximately 117 metres in height comprising retail, office, an art gallery and dwellings with a basement car park.
The responsible authority is the Minister for Planning and the applicant is Overland Properties Pty Ltd (Overland).
The proposed development was described in the SJB Planning Pty Ltd report as follows: The application seeks approval for: · Demolition of existing buildings on the sites (currently 7 and 8 level offices) · Buildings and works for the construction of a building designed in a podium and tower form, with the podium reflecting the dominant 25 metre streetscape height and a 100 metre tower (117 metres to the top of the roof plant) · The lower and upper ground levels with the podium will provide four food and drink/retail tenancies; 8,990 square metres of office floor area (NFA) over five levels (plus lobby), along with resident amenities (gym and pool), an art gallery/function space and external viewing platform at level six · Car parking will be provided within building’s seven level basement, plus ground level parking areas, providing car parking for 389 vehicles along with 71 motorcycle and 90 bicycle spaces · The flexible office floor plates will enable their occupation by single or multiple occupants and each level is provided with shower and change facilities commensurate with ESD offices · The 26 level tower incorporates the resident amenity and gallery/function space, with 25 levels of residential apartments above, containing 101 apartments overall.
The Minister for Planning’s representative at the Hearing stated that “a large number of objections were received in response to the application being publicly advertised”. The objections were summarised as follows: · Concerns relating to the impact of the tower on the significance, environs and the ability of people to appreciate the Shrine of
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Remembrance including concerns about overshadowing, visual intrusion and building bulk; · Concerns about the effect of the proposed tower on St Kilda Road; · Concerns about the impact of the proposal on adjoining buildings and in particular 8 Dorcas Street and 320 St Kilda Road; · Concerns about the removal of the previous height control and arising from assumptions and information about the existence of height controls limiting development height in the previous planning scheme; · Desire to see the previous height control for the amendment area reinstated; · Concerns regarding inconsistency with the Melbourne Planning Scheme; · Incompatibility with existing built form; and · Matters relating to property values and oversupply of apartments in the area.
2.3 Role of PAC
The Panel and Advisory Committee (PAC) was appointed on the 7 November, 2008 pursuant to Sections 151, 153 and 155 of the Planning and Environment Act 1987 (P&E Act) to hear and consider submissions in respect of the Amendment and Planning Permit Application.
The PAC consisted of: Chair: Mark Marsden; Member: Ross Ramus; and Member: Michael Read.
The Panel has been appointed to consider the application for planning permit 2008/0758 and the Advisory Committee has been appointed to consider the application for planning permit, the planning scheme amendment and any other matter relevant to the nature of planning controls to guide height and setbacks that apply to 312‐332 St Kilda Road, Southbank.
The PAC sat as a joint body.
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2.3.1 Terms of Reference
The PAC must produce a report for the Minister for Planning providing: A response detailing the nature and content of appropriate planning controls to apply to the land at 312‐332 St Kilda Road, Southbank, having regard to all relevant considerations, including: · The physical context of the site and its surrounds, including the importance of the nearby Shrine of Remembrance, the surrounding gardens and St Kilda Road; · The height of development in the surrounding precinct and appropriate limitations on height that should be applied to the site taking into account the context; · The past and present context of planning controls that have applied to the site and the surrounding precinct along St Kilda Road including land in both the Melbourne Planning Scheme and the adjoining Port Phillip Planning Scheme; · The background context of Amendment C125 and issues associated with the ostensible omission of a height control on the land limiting development to 36.05 metres above the Australian Height Datum; · The adequacy of the current Local Planning Policy Framework in terms of protecting and enhancing the Shrine of Remembrance and its surrounding gardens and St Kilda Road. These matters will inform: · A response on the overall merits of the application for Planning Permit No 2008/0758 for land at 324‐332 St Kilda Road, Southbank including recommendations as to whether the permit should issue and if so, under what conditions.
The terms of reference are included in Appendix A.
2.4 Site and surrounds
Appendix B includes a location plan of the subject land.
The PAC adopts the assessment of the site and surrounds description prepared by SJB Planning Pty Ltd as follows: The land subject to the Amendment includes 312, 320, 324 and 332 St Kilda Road. These four lots are bounded by St Kilda Road to the east, Coventry Street to the north, Anthony Lane to the west and Dorcas
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Street to the south. The application for the planning permit relates to two of the four sites within the block: 324 and 332 St Kilda Road. Total area of the 324 and 332 St Kilda Road sites is 2,150 square metres. Frontage to St Kilda Road is 37 metres; to Dorcas Street is 49.9 metres; to Anthony Lane is 49.9 metres; and 52.87 metres to the northern boundary. The two sites fall 4.08 metres from east to west along the northern boundary; 2.86 metres from east to west along the southern boundary and rises 1.25 metres from north to south along the western boundary. The Site is relatively flat along the St Kilda (eastern) boundary). Vehicle access is provided along Anthony Lane which is a Council‐owned lane that runs north‐south behind the two sites. No. 324 St Kilda Road is developed with an eight story building constructed in the early 1960’s and which is used for office purposes. No. 332 St Kilda Road is developed with a seven storey building which was constructed in the mid 1980’s and which is also used for office purposes. The site is located at the south‐eastern corner of Southbank and is opposite the Domain Parklands and Shrine of Remembrance and gardens. The gardens are approximately 8 hectares and extend from St Kilda Road to the west, Birdwood Avenue to the east, Anzac Avenue to the north and Domain Road to the south. Residential properties immediately abut the site to the west and north (8 Dorcas Street and 320 St Kilda Road respectively). The building at 8 Dorcas Street contains two retail tenancies at ground level fronting Dorcas Street, serviced apartments from levels one to five, car parking from ground level to level seven and residential apartments from levels seven to twenty. The building at 320 St Kilda Road is established with a nine level strata‐ titled residential building, with an IGA supermarket at ground level. Further to north at 312 St Kilda Road is a seven level building which is used for commercial purposes. The site borders the City of Port Phillip to the south and west. Development farther south along St Kilda Road varies in scale and intensity, from the one‐storey Christian Reading Room at 336 St Kilda Road to the 26 storey (85 metre) St James building and the 40 storey (135 metre) Royal Domain buildings. Development farther west along Dorset Street to Wells Street is primarily used for commercial purposes.
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Landmarks of State and National significance close to the site include the Royal Botanic Gardens, Albert Park Lake, the Malthouse Theatre and Australian Centre for Contemporary Art, the Arts Centre and Federation Square.
2.5 The Hearing
2.5.1 Hearings and inspections
A Directions Hearing was held on 10th December, 2008 at Planning Panels Victoria. The Panel Hearings were held on 23rd, 24th, 25th, 26th and 31st March and 1st, 2nd and 3rd April, 2009 at Planning Panels Victoria.
The Panel inspected the site and surrounding areas, making: an unaccompanied visit on 19th March 2009; and an accompanied visit on 26th March, 2009.
In addition, two members of the PAC attended the Anzac Day service on 25 April, 2009.
Parties who appeared before the PAC
The PAC have considered all written and oral submissions and all material presented to it in connection with this matter.
The PAC heard the parties listed in Table below.
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Table 1 Submittor Represented By Overland Property Group Pty Ltd Mr Ian Pitt SC of the firm Best Hooper and Ms Susan Brennan of counsel who called the following witnesses: Ms Roz Hansen, Hansen Partnership, town planning Mr Mark Sheppard, David Lock & Associates, urban design Mr Andrew Hutson, architecture Mr Peter Briggs, heritage Mr John Kiriakidis, GTA Consultants, traffic engineering Mr Simon McPherson, SJB Urban, urban design Mr Charles Justin, SJB Architects, architecture Mr Chris Goss, Orbit Solutions, visual amenity Melbourne City Council Mr P Chiappi of counsel Mr M Belmar of counsel appeared on 2 April, 2009 Minister for Planning Ms Sarah Porritt of counsel Shrine of Remembrance Trustees Mr Peter O’Farrell of counsel instructed by Mr Mark Bartley and Mr Andrew Natoli, solicitors of the firm DLA Phillips Fox, who called the following witnesses: Mr Tim Biles, urban planner Mr Peter Lovell, heritage On 25th March 2009 Mr Bartley appeared for the Shrine of Remembrance Returned Service League Mr Michael Annett, chief executive officer Mr Anthony Dowd and Mrs Monica Dowd Mr David Gibbs Mr Henry Jolson Mr Bruce Henderson Mrs Linda Willersdorf Mr Bruce Lowery Dr Barry Clark
A list of all written submissions to the Amendment is included in Appendix C.
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3. Approach of PAC in preparing this report
3.1 Introduction
A number of submissions were made as to how the PAC should approach its tasks set out in the terms of reference. The main points of these submissions were: the need to consider the policy framework first, which would then inform the PAC’s views on Overland’s development application for the 117 metre high tower; the need for a balancing of policy between promoting urban consolidation objectives for higher density development, against policies that require the protection of culturally significant buildings such as the Shrine of Remembrance, from inappropriate development; and the PAC need not be constrained by considering the development application against the existing planning controls, because the terms of reference require it to make recommendations as to the appropriate planning controls that should apply to the subject land.
3.2 Submissions
Order of approach between policy framework and assessment of proposal.
Mr O’Farrell for the Shrine of Remembrance Trustees submitted that the PAC’s role in this matter should be to consider the policy framework first, then to consider whether or not Overland’s development should be supported. From this perspective, Mr O’Farrell stated that if the PAC recommended that height controls should apply to the land then it would logically follow that the development application should be recommended for refusal.
Need to balance competing policy
On this issue, Mr Chiappi for Melbourne City Council (MCC) stated:1 The goal of the State Planning Policy Framework is set out at clause 11 of the Planning Scheme. It is the expectation of the State Government that decisions to amend planning schemes, and issue planning permits,
1 Paragraphs 73 and 74 of Mr Chiappi’s submission
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will be made after integrating social, economic and environmental policies in favour of net community benefit and sustainable development. It is submitted that the proposed amendment to the Melbourne Planning Scheme to introduce a height control to the site provides a net community benefit. Although it reduces the ability of this land to contribute to urban consolidation, it achieves the preservation of the significance of one of the most important places protected by planning schemes. There are many parcels of land which can be developed to significant densities to assist consolidation aims but the Shrine is unique. Planning authorities must be particularly vigilant in relation to the scale of development that can be allowed at such close distance.
Mr O’Farrell stated:2 The task set for the PAC ultimately will require a balancing of policy. It is submitted that the PAC must find that that policies and objectives that support the protection and conservation of buildings, and areas and places of architectural value attract the most weight in the context of this hearing. It is submitted that this policy imperative is not outweighed by the asserted benefit of the proposal before the PAC.
While Mr Pitt did not make any express submissions about the task of the PAC, the approach of his submission and the planning, heritage and urban design witnesses he called was to assess both the Amendment and the development proposal against the various competing policies.
PAC’s terms of reference
Mr O’Farrell also submitted that the PAC is not constrained by the existing policy context of the Melbourne Planning Scheme in the same way that the Victorian Civil & Administrative Tribunal (VCAT) would be in considering this matter because the Minister has given the PAC broad terms of reference including the ability to suggest alternative planning controls applying to the subject land.
3.3 Discussion
Order of approach between policy framework and assessment of proposal
While the PAC accepts the logic of Mr O’Farrell’s suggestion that it consider the policy framework before assessing the development application, it considers the terms of reference require it to provide a full and proper assessment of the application for planning permit that was submitted to the
2 Paragraph 20 of Mr O’Farrell’s submission
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Minister for Planning as responsible authority for the land. To this end, the PAC notes the applicant has prepared a comprehensive application with detailed plans and reports, and engaged legal counsel and a number of experts, including experts that provided a peer review of aspects of the proposal, for the Hearing. Comprehensive submissions were also received in response to the planning permit application. As a result of this process, the PAC has gained a deeper understanding of the impact of any height controls for the subject land on the Shrine, St Kilda Road streetscape and nearby buildings.
Further, the PAC notes that its role is to provide a recommendation to the Minister for Planning; it is not the decision‐maker itself. As such, it is possible that the Minister could reach a different view than the PAC on the planning controls and also on the development application.
Need to balance competing policy
The PAC accepts that under the Victoria Planning Provisions (VPPs) it is appropriate that it consider the Amendment and Overland’s development application against the competing policies and that its role is to weigh up the competing policies and make a recommendation to achieve net community benefit. As the very first clause of the VPP’s states:3 The purpose of State policy in planning schemes is to inform planning authorities and responsible authorities of those aspects of State level planning policy which they are to take into account and give effect to in planning and administering their respective areas. It is the State Governmentʹs expectation that planning and responsible authorities will endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.
The PAC does not believe that any party appearing before the PAC disputed the need for the PAC to adopt this approach.
PAC’s terms of reference
The PAC accepts that as an advisory committee appointed by the Minister for Planning, that its role is broader than what would be the case if VCAT was considering a review of the planning application. However, as stated above, the PAC’s view is that it should provide a full assessment of the development proposal against the existing policy framework because an application has been received and the terms of reference require a full and proper assessment of that application.
3 Clause 11.01 of the State Planning Policy Framework
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4. Planning Permit Application 2008/0758
4.1 Introduction
The PAC’s terms of reference require it to make recommendations as to whether a permit should issue, and if so, under what conditions.
A comprehensive description of the application for the planning permit is provided in section 2.2.
As noted above, the PAC considers that it should provide a full assessment of the application against the current planning framework notwithstanding any recommendations it makes on future planning controls it considers should apply to the site.
4.2 Issues
Having regard to the submissions and evidence regarding the proposed development the PAC considers that the following issues need to be addressed in considering the development: Will the proposed development have an adverse impact on the cultural significance of the Shrine? Will overshadowing have an adverse impact on the Shrine and reserve? Is the proposed building of high architectural quality? Will glare from the proposed building have an adverse impact on the Shrine and reserve and activities that occur on the Shrine environs? Will light spill have an adverse impact on the Shrine and reserve and the Melbourne Observatory? Are the amenity impacts acceptable, particularly on residents at 8 Dorcas Street? Does the lack of a setback to the building to the north impose unreasonable constraints to future development to the immediate north? Are the traffic and car parking impacts acceptable? Is the proposed development in accordance with the existing policy framework? How should land surrounding the Shrine be managed? Does the CMP provide a statutory basis to consider the impact of the proposed development on the cultural significance of Shrine?
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Based on the above analysis, the PAC considers it needs to make an assessment as to whether: Is an informed judgement appropriate as a basis for refusing a permit for the development?
4.2.1 Will the proposed development have an adverse impact on the cultural significance of the Shrine?
What is the Shrine’s significance?
The Shrine, with its reserve, is included in the Victorian Heritage Register under the Heritage Act 1995. It is also mapped and included in a specific Heritage Overlay of the Melbourne Planning Scheme (HO489). The Shrine and its reserve are also mapped and included in a broader heritage overlay that includes much of South Yarra (HO6). Two statements of significance exist for the Shrine: that prepared by Heritage Victoria, a somewhat similar statement in the Shrine’s Conservation Management Plan (CMP) 4. Referring to the former Statement of Significance, the Shrine of Remembrance is of cultural significance for the following reasons (PAC paraphrasing): historically – as a memorial to the devastating impact of WWI; as the largest war memorial in Victoria; historically – for its association with a wide range of prominent people; for the presence of the Lone Pine tree within its reserve; socially – as the pre‐eminent war memorial in the State, providing a focus for related public events and private reflections; as reflecting the rare level of public support given to this building; architecturally – as a large and imposing memorial building; being “important for its prominent siting; strong axiality; the variety of materials used, …; the unusual emphasis placed on the interior space; the ray of light in the sanctuary and an array of major sculptural works …”; and aesthetically – for its design within the landscape, “which ensures prominence and vistas from all directions. …”
The curtilage of the Shrine, insofar as Heritage Victoria and the Planning Scheme is concerned, is defined by the boundary of the reserve itself. The CMP also concludes that the curtilage should be:
… considered to include the St Kilda Road/Swanston Street axis extending back into the City. In considering any development within
4 Allom Lovell & Associates with John Patrick Pty Ltd, 2001, Conservation Management Plan for the Shrine of Remembrance and the Shrine Reserve
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this area, consideration should be given to the impact on views to the Shrine.5
Submission and evidence
The various submissions and evidence identified a number of aspects of the proposed development that would be allegedly deleterious to the cultural significance of the Shrine: creating an overbearing building bulk, shadow falling across the Shrine reserve and the Shrine itself, increased overlooking of the Shrine and reserve and sunlight glare onto the Shrine’s forecourt and adjoining areas.
Both Mr Briggs (for Overland) and Mr Lovell (for the Trustees) conceded that any assessment of the effect of the proposed building on the heritage value of the Shrine can only be subjective, even if the physical extent of change can be judged objectively.
Mr Briggs’ evidence was that any effect of the proposed development on the cultural significance of the Shrine related to the latter’s aesthetic significance. In reaching his conclusion that the impact would be acceptable, Mr Briggs relied on a number of preliminary conclusions.
Firstly, he concluded that, given the importance of the Shrine and the long‐ standing nature of the relevant planning controls, views of or from the Shrine that need to be protected have been well established, i.e. any views that would be affected by the proposed development have not been identified as significant in either the CMP or the existing planning controls; he also gave weight to the fact that these controls have been of long standing and long accepted.
Secondly, he concluded that the proposed development would not dominate the Shrine or its reserve. Rather, he concluded that an additional tall building would, by creating a heightened contrast between itself, together with the other adjoining tall buildings, and the Shrine, further differentiate the Shrine and its surroundings, stating with respect to “the proposed built presence:” … as experienced in juxtaposition with the Shrine and Cenotaph (it) will not diminish the appreciation of the monuments which exist, in part, as counterpoint to the wider urban setting.6
5 CMP, p152 6 Page 6 of Mr Briggs’ expert statement
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Thirdly, with respect to the anticipated shading, Mr Briggs concluded that the effect of shading would be acceptable: the extent of shading would be limited to the late afternoon on about one‐fifth of the days in the year, would only occur with the happenstance of sunlight, at which times much of the reserve would also be shaded by trees, and, finally, that one’s experience of the Shrine forecourt is dynamic rather than static. On this basis, he concluded: … at particular times the capacity for appreciation of the place will be changed but not to the extent that the fundamental heritage significance of the Shrine will be diminished.7
Mr Lovell considered a number of aspects of the Shrine’s cultural significance and the impact that the proposed development would have on these. With respect to a historical perspective, he held the view that the Shrine’s designers had intended it to be a place of “tranquillity”, providing, in turn, opportunities for privacy and repose. Intruding buildings, in his view, would reduce this quality in direct proportion to their height. He saw the Shrine’s social value as being related to its role as a gathering place. Mr Lovell concluded that increased overlooking would reduce the Shrine’s ability to, in particular, provide for private reflection. In addressing the Shrine’s architectural value, Mr Lovell concluded that this in part rests on the layout’s strong axiality. While the dominant north‐south axis had long been protected, he believed that the east‐west axis is also important and the existing tall buildings to the west already impacted on this to the detriment of the Shrine’s cultural significance; the proposed building would extend this impact.
Overall, with the advantage of hindsight, Mr Lovell regretted that the CMP did not define a curtilage that included the subject and adjoining sites, observing that his opinion on this matter is reinforced by his opinion that: … the aesthetic value of the place rests in the ’design within the landscape, which ensures prominence and vistas from all directions’.8
He expressed the opinion that any building on the subject site should be limited to the established podium level of 25 metres above St Kilda Road.
Discussion
In reaching a conclusion as to the effect that the proposed development in the permit application would have on the “the traditional use and cultural meanings of the [Shrine]”9 the PAC has considered the following questions:
7 Page 8 of Mr Briggs’ expert statement 8 Page 39 of Mr Lovell’s expert statement
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What physical attributes are generally used to enhance people’s sense of a place as being an important memorial, as appropriate to support the veneration of important events and thereby endowed with cultural significance in relation to those events? What physical attributes were originally incorporated in the Shrine’s design to enhance people’s sense of it as a sacred place? To what extent do the above physical attributes of the Shrine remain today? What objective effects would the various proposals – the particular development or planning scheme amendment or their variations – have on the attributes that affect people’s sense of the Shrine as a sacred place? Finally, what is the likely subjective effect of the development proposal or the amendment on people’s sense of the Shrine as a place of great cultural significance?
Drawing on statements made in submissions and expert evidence, together with the personal experiences of the PAC members, the PAC has drawn the following conclusions about the qualities typically sought in memorials and sacred places, and which are demonstrated in the design of the Shrine.
Places of great cultural significance, including major memorials, major places of worship or places associated with other major rituals are generally designed to create a sense of awe and solemnity by a number of design strategies: being visually separated, by one means or another, from everyday activities, giving a sense of being a place apart – using physical separation and visual differentiation of the place from its everyday context by distance, elevation or use of larger structures; by providing a place with an environment supportive of individual contemplation and reflection – through a quiet setting that is free of distracting activities, using symbols associated with the subject that is memorialised, by providing physical and auditory isolation from the mundane surroundings; and by providing an environment supportive of ceremonies – traditionally achieved using designs which create a sense of solemnity by way of such monumental qualities as larger buildings and spaces, places raised above their surroundings, other aspects of giving visual prominence and by using symmetry and repetition on a grand scale to create a sense of overwhelming formality.
9 Lovell P, Statement of Evidence, p18
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Mr Lovell’s statement, in referring to the CMP, usefully encapsulates the relationship between the Shrine’s design and its effectiveness for its intended purpose:
… the key principles … of the maintenance of the traditional use and cultural meanings of the place … are inextricably linked to its aesthetic attributes, including both its external presentation and the experience when one is within the place.10
In this case, the features of the Shrine’s design and its environmental setting that enhance one’s perception of the Shrine as a place of great cultural significance include its ability to provide an environment suitable for individual contemplation and reflection, for solemn group ceremonies and to educate the community about the events that it commemorates.
A sense of the Shrine’s separateness from its surroundings has been created by setting it on raised ground and in a park which, in its early days, provided a visual buffer from its mundane surroundings – including the immediately adjoining St Kilda Road, the commercial and industrial areas of the City to the north and the residential and commercial development to its west and south. Its elevated position ensured the Shrine’s visibility from, and outlook over, most of its surroundings and particularly those to the north, west and south.
A sense of solemnity and grandeur had been sought through the Shrine’s hilltop location, by constructing a relatively large and tall building, by using architectural styles drawing on recognisable temple architecture of past civilizations (i.e. building types readily identified as places of historic cultural significance) and by using a highly formal site layout dominated by an axial symmetry based on a grand ceremonial approach along St Kilda Road and Swanston Street beyond. The Shrine’s internal hall, closed off from all outward scenes and activities, provides the ultimate experience of isolation and solemnity.
All the above were cited as desirable attributes of the Shrine’s siting and design, as quoted from original sources by Mr Lovell in his evidence11. A sense of the Shrine’s separateness and grandeur could therefore potentially be compromised by visual intrusions of the mundane, e.g. greater visibility of external buildings, by increased noise of worldly activities or by other reminders of the external: shadows or sunlight glare cast across the reserve or Shrine itself from adjoining buildings; by overlooking from outside and
10 Page 18 of Mr Lovell’s expert statement 11 For example, there is the statement attributed by Lovell to the Shrine’s architect, Phillip Hudson; The National War Memorial of Victoria: an interpretive approach (undated, c. late 1950s);
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Over recent years the key elements of the Shrine’s internal design and external context have remained intact. Modifications to the forecourt (construction of the WWII memorial) and the two side courts have not changed the place’s formal symmetry, its landscape setting within its reserve or its orientation towards the dominant St Kilda Road axis, though the PAC agrees with Mr Pitt’s inference that the latter do intrude awkwardly into side‐angle views of the Shrine’s northern elevation. However, as is readily observable, the most significant change is to the Shrine’s setting – being the presence of large buildings along the western side of St Kilda Road, including in particular the St James and Royal Domain Apartments but also the lower but closer 8 Dorcas Street to the immediate west, the former BP House to the south‐west and other tall buildings extending southwards, particularly along the western side of St Kilda Road. While the “Melbournian’s” towers can be noted to the nor‐nor west, they are largely obscured by trees; within a short arc further to the north are the various tall residential and commercial towers of Southbank and the central city but any intrusion by these is rather ameliorated by distance.
The other significant change, the scale of which is a matter of subjective judgement, is the increase in activities within and bordering the Shrine and its reserve: visitors attending the Shrine and its reserve for various reasons and road traffic, including the tourist buses that park along Birdwood Drive.
As the various expert witnesses emphasised, the character of the views that one experiences around the Shrine reflect the experience one has of arriving and walking around the Shrine itself, an experience that cannot be reflected in images captured at a single point. From the photographs presented at the Hearing, and the members’ observations during several visits to the Shrine, including this year’s Anzac Day Dawn Service and March, the PAC has noted the intrusion of a number of tall building’s into one’s experience of the Shrine: in progressing towards the Shrine along the ceremonial axis from Swanston Street and St Kilda Road and looking towards the Shrine, the tall buildings to the west of the Shrine are not particularly intrusive and are subordinate to the avenue of cypress pines and the structure of the Shrine itself; as one nears the Shrine and its forecourt, the tall buildings to the immediate west become even less relevant in views of the Shrine from the principal axis (though tall buildings to the south‐west, grouped around the former BP House, do intrude into the otherwise pristine view of the Shrine);
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from most points west of the Shrine and the Cenotaph, particularly from the western side of the forecourt but also from views towards the Shrine from along Birdwood Drive, the existing tall towers to the west dominate the view; in fact, the further the view point is to the west, the more dominating the towers appear; it is difficult for anyone to experience the Shrine from most close aspects without being very much aware of the tall towers’ looming presence and the extensive backdrop of other tall buildings to the west and south‐west; many of the specific small memorials plaques and dedicated trees around the reserve, particularly where close to both Birdwood Drive or St Kilda Road, are experienced in a context dominated by traffic (trams and cars along St Kilda Road; cars and tourist buses and related activities along Birdwood Drive) and, along St Kilda Road, the commercial buildings to the west; and the sense of isolation one experiences within the Shrine’s interior remains, of course, unchanged.
The PAC agrees with Mr Briggs that one’s awareness of the Shrine and its surroundings, as experienced from the upper balcony, equates more to tourists’ experience of enjoying elevated outlooks than being likely to engender a sense of reverence, awe or contemplation relating to the purpose of the Shrine (i.e. in the PAC’s opinion the view from the upper balcony is more a distraction from, rather than reinforcement of, the Shrine’s cultural significance).
The Shrine hosts visitors having many different purposes: attending formal memorial or dedication ceremonies which occur over the year and mostly in the morning (though some do occur at other times of the day); informal visits by individuals or small groups seeking their own opportunities for reflection; tourists, with a range of expectations and often attending in large groups; other groups, particularly from schools, undertaking educational visits12; tourist and school visits also frequently rely on bus transport, so that nearby sections of Birdwood Drive provide for extensive bus parking. Consequently, apart from large‐group ceremonies where the group itself may be a dominant presence close to the Shrine, individual visits often occur in a context that includes the presence of many other individuals with unrelated interests and possibly distracting behaviour.
12 Herald Sun, 17th April, 2009: “The Shrine of Remembrance has been forced to turn hundreds of students away from its education centre because it has run out of space and resources to teach.” and “The (proposed) expansion proposal would lift capacity from 35,000 students to 100,000 students annually.”
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While the PAC has identified a sense of isolation as an important quality for a shrine or memorial, it also concludes that many parts of the Shrine’s reserve lack this quality and, further, that this does not appear to deter people from seeing the place as appropriate to its purpose. No one has suggested that memorials close to, say, St Kilda Road, which experience high levels of external activities, are less valued than places with a greater sense of isolation. For example, The Cobbers memorial13, recently established through the activities of a special interest group, has been located adjoining what is probably the most distracting context of any memorial in the reserve – the Domain / St Kilda Road intersection, with its heavily trafficked arterial roads and tall offices as a backdrop to the west and south‐west. Yet submissions to the PAC suggested that this memorial’s setting has no deleterious effect on its value.
Finally, while all experts acknowledged the great importance of the northern axis – the formal or ceremonial approach to the Shrine – the PAC’s conclusion is that this axis is not particularly apparent or dominating in views from the Shrine forecourt. While the formality of the main axis is still apparent, there is a more even balance between it and the various other elements within this scene: the broad expanse of the forecourt itself; the Shrine building standing dominant to the south above its broad array of stairs; the Cenotaph to the west; the flagpoles to the east, the canopy trees around to east and west; the long parade of lower buildings to the west and south‐west with the two taller towers to the west. The great value of the principal north‐south axis seems best appreciated in external views from the north.
In forming its conclusion in relation to the questions that have been put to it, the PAC’s initial conclusion is that the existing tall buildings to the west of the Shrine (St James and Royal Domain Apartments and others) do intrude substantially onto, and markedly reduce the cultural significance of the Shrine as experienced in views from the west of the forecourt in that they diminish those qualities which create and maintain a sense of the Shrine as being something apart from its surroundings. We agree with those experts who held the opinion that the Shrine’s cultural significance would have been better maintained if these buildings had not been constructed. While the loss of cultural significance caused thereby primarily affects the westward outlook of persons within the forecourt and nearby areas, and while such outward views from these areas are not as important as the inward, northern‐axis view of the Shrine, the PAC concludes nevertheless that these views have significant importance. Furthermore, the PAC has concluded
13 Memorialising Australians lost in the disastrous WWI battle at Frommel, France.
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that the importance of westward views from or across the forecourt has been increased above its original state as a consequence of the reconstruction of the forecourt, completed in 1934, to accommodate the WWII memorial and associated ceremonies.
While the PAC acknowledges that there may be situations where the cultural significance of a place may be enhanced by visually emphasising the contrast between it and its context (one basis of Mr Briggs’ view that the proposed development is acceptable), that is not the basis of the Shrine’s original design or setting. The PAC does not find any basis on which to accept this aspect of the Shrine’s significance has been supported by one based on such a contrast.
In forming an opinion of the objective consequence of the permit application, the PAC has taken into account the several permits that have been issued for buildings on sites west or north‐west of 8 Dorcas Street, between Anthony Lane and Wells Street and which will be of a generally similar height.
4.2.2 Will overshadowing have an adverse impact on the Shrine and reserve?
One of the major concerns of the Trustees and MCC was the impact of the proposed building on the Shrine and reserve. Shade diagrams for buildings of various heights on the subject and adjoining sites for the winter and summer solstices and the equinox and for different times of the afternoon on these days were provided, as well as at the commencement times for a range of important ceremonies at the Shrine.
With respect to the proposed building at a height of approximately 117 metres, the overshadowing impacts were as follows: 14 in all cases, the proposed building’s shadow would just reach the Shrine reserve’s boundary by between 2:00 pm (the solstices) or 3:00 pm (the equinoxes) and would then progressively creep across the western slopes of the reserve towards the Shrine itself; at the summer solstice, by 6:00 pm the proposed building’s shadow would just reach the Cenotaph on the Shrine forecourt; by this time the shadows of the Royal Domain Apartments and St James building extend a generally similar length into the southern part of the reserve; at the equinoxes, by 4:00 pm the proposed building’s shadow would have barely reached the Shrine and by 5:00 pm would extend across the Shrine’s northern face; the shadows of the Royal Domain Apartments
14 We were not advised otherwise and so have assumed in our assessment that summer solstice times are given in Eastern Summer Time.
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and St James building and extend well into, or across, the southern part of the reserve; the sun would set by 6:00 pm; at the winter solstice, by 4:00 pm the proposed building’s shadow would reach across the southern portion of the reserve, well away from the Shrine itself, while the shadows of the St James and Royal Domain apartments extend into the reserve close by but to a lesser distance; and none of the significant morning memorial services would be affected by shading. By 4:00 pm on Anzac Day, the proposed building’s shadow would extend into the reserve to reach a point immediately south of and some distance away from the Shrine.
Submissions and evidence
Opposing submissions were that no shading should be allowed within the Shrine reserve, even at the winter solstice, referring to provisions in the planning scheme that prohibit winter shading in identified major parks at the winter solstice. Counter submissions argued that some shading is acceptable within the Shrine reserve, as it is not a place of high pedestrian use or where people come for general relaxation.
With respect to the effect of additional shadow that the proposed building would cause, it was put by the Shrine Trustees and Mr Biles that no shading of the Shrine itself or its reserve is acceptable, with Mr Biles more specifically opining that no shadow should intrude into the reserve before 4:00 pm. Mr Lovell believed that shadows will impact people’s experience but, due to the complexity of the Shrine’s setting, he found it difficult to relate this to the Shrine’s heritage significance; he considered this to be “a less critical issue”.
Discussion
Having regard to the submissions and evidence, the PAC considers that: there is no likelihood of shading structures being constructed to the north and east of the Shrine reserve, because of the public ownership of land in those directions. The only source of future shading could be from tall buildings in the Amendment area, as these would potentially cast late afternoon shadows across the reserve; Mr Lovell’s assessment and conclusion in this matter was accepted, as it appears to the PAC to be that which was most objective. Any intrusion by tall buildings will be generally more apparent than any intrusive effect of their shadows; and shading of the Shrine’s reserve should not be treated as equivalent to shading of the heavily‐used city squares. Given the occurrence of shading only late in the day, the limited and dispersed nature of people’s presence in the reserve generally and the ephemeral and
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oblique nature of such shading as would occur, the PAC concludes that the occurrence of some shading late in the day would not have a significant effect on the cultural value of the Shrine or the reserve.
4.2.3 Is the proposed building of high architectural quality?
A major theme of Overland’s submission was that proposed building demonstrated high quality architecture. Accordingly, the PAC considers it appropriate to make comments on this issue.
Submissions and evidence
Submissions and evidence on matters of urban design and the architectural proposal were in the form of an urban context study, a report on planning issues including the architectural proposal, and expert reports and statements of evidence, including: Urban Context Report, June 2008, prepared by SJB Urban; Report on Planning Issues, June 2008, prepared by SJB Planning Pty Ltd; SJB Urban on behalf of the proponent, represented at the Hearing by Mr Simon McPherson; SJB Architects, on behalf of the proponent, Statement of Evidence and represented at the Hearing by Mr Charles Justin; and Andrew Hudson on behalf of the proponent, Statement of Evidence, February 2009, and presentation at the hearing on Architectural matters.
On the specific matter of the architectural quality of the proposed development Mr Justin concluded:15 Our objective is to provide a building form that does justice to this prominent location on the corner of St Kilda Road and Dorcas Street that has been designated in the Planning Scheme to accommodate a significant building. I believe the building has been sensitively considered, resulting in a building of architectural quality that will be a fitting addition to Melbourneʹs urban environment.
Mr Hudson in his evidence on architectural quality, concluded:16 ....the architectural design of this proposed development is excellent in terms of urban planning, architectural composition and apartment amenity. The choice
15 Charles Justin, Witness Statement, Conclusion 16 Andrew Hudson, Expert Witness Statement, Para 45 and 46
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of style is contemporary, appropriate for the area and program and is well articulated. The proposal works well within the context, will have minimal impact on the environs of the Shrine Reserve and while acknowledging that it will have a bearing on the adjoining property to the west with regard to view, it is designed to ameliorate the potential impact.
Discussion
The formal composition of the development is based on the concept of a podium and tower building, with the principal functions of office space and residential dwellings distributed accordingly.
The form of the podium is largely a pragmatic response to the site boundaries and the requirement for building setbacks; this footprint is extended vertically to align with the height of adjoining buildings fronting St Kilda Road. The intention is that the podium reinforce the line of the existing streetscape, at the same time activating the experience of the street edge. Setbacks from the podium face at ground and lower ground floor levels form a double height arcade for part of the frontage, for the purpose of circulation and access to the retail tenancies. Separate entrances are provided at the ground level for office and residential users of the building.
The residential tower, set back from the podium’s edge, represents a more complex response to the dictates of both site and environs. In plan it employs a number of formal devices, analogous in the words of Mr Justin ʺto a series of layered shellsʺ: The use of linear and curvilinear sections of façade; disconnection of sections of the facade at the building corners; extension of the facade planes beyond the line of the corners; and the dissolving of the corners of the building by the inclusion of open balconies ʹnestingʹ behind the glass facades. In addition, there is the intention to ʹfloatʹ the tower above the podium by means of increased ceiling height and set back of the line of the facade at the transition or podium deck level. In combination, these devices serve to diminish the dimensional bulk of the tower, and ameliorate the amenity impacts on residents of the adjoining building.
The architectural image of the project is predicated in large part on the adoption of the tower and podium form as the strategy for development.
From here, design decisions have lead to the architectural treatment of the podium as a near solid mass; that is, heavy forms with a dark masonry cladding and punched window openings.
As a counterpoint, the architectural expression of the tower is determined by the adoption of both the imagery and the tectonics of office buildings and
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their application to a residential project; this is in line with much of the recent output of high rise residential building in Melbourne and elsewhere. The tower is clad in a light weight glazed skin, utilizes both grey and green glass in its elevations and employs glazing types including clear, translucent, opaque texture and reflective glass in a collage of apparently random but related colours and tones.
The intention of the architects, beyond the separate readings of the podium and tower, is to provide an ephemeral image for the tower to further lessen the impression of bulk and mass, an image that can be read at an urban level or appreciated for its finer grain of glazing colours and tones from within the precinct. The visual experience of the tower would be one responsive to changes in light and shade, reflective of the qualities of that light and, at night, the changing patterns of luminance within.
In the PAC’s view, the design proposal is representative of quality commercial architecture and holds out the possibility of a qualitative improvement in the architectural offerings within that section of St Kilda Road. It is not seen to be innovative, formally or aesthetically, nor is it an example of architectural excellence.
The PAC commends the intention for the treatment of the tower, in particular its use of a glazed skin and devices for the dematerialisation of its image; both have merit in this particular application. Less certain is the quality of the interior experience of the building, with the use of different glazing colours and the apparently random distribution of glazing types or tones all of which could have an unpredictable and not necessarily desirable effect within an individual apartment.
Overall the architecture is be seen to fall between possible strategies of a ʹsuiteʹ of related compositional elements on one hand, and the conscious pursuit of disjunction within the composition, where disparate elements are brought together. This latter strategy has successfully been employed locally in a number of buildings involving the vertical extension of existing structures for use in multi level housing.
4.2.4 Will glare from the proposed building have an adverse impact on the Shrine and reserve and activities that occur in the Shrine environs?
Mr O’Farrell for the Trustees expressed concern with the potential effects of sun reflections from the building facade on visitors to the Shrine of Remembrance, particularly during ceremonies and services.
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Submissions and evidence
SJB Planning in its report on planning issues and including the architectural design proposal, indicated glazing to the tower portion of the building would be a collage of glazing colours and tones. The tower facades would be a curtain wall of double glazed units utilising Low E glass, with colour grey to the north and west elevations and colour green to the south and east. These colours in turn would be a mix of four tones: clear vision glass (comprising approximately 50% of the facade area) translucent (25%), opaque texture (20%), and reflective glass (5%).
Submissions on reflectivity of the building facade were in the form of a report by consultants to Overland, and correspondence from the consultant to SJB Planning, tabled at the Hearing. Specifically: Facade Reflectivity Report, July 2008, prepared by Hyder Consulting Pty Ltd on behalf of Overland Development Corporation; and Letter, dated 01 April 2009, from Mr Dominic Li of Hyder Consulting Pty Ltd to SJB Planning, specifically addressing reflections towards the Shrine.
Hyder Consulting in its assessment and recommendations for use of glass in the tower, proposed the use of glass assemblies of a reflectivity of less than 20%.
On the matter of reflectivity, in summary the report concludes:17 Solar reflections from the podium facade would be shielded by surrounding buildings and trees and would not cause sun glare to motorists. Reflections from the lower parts of the tower facade would be shielded by surrounding buildings and trees and would not cause sun glare to motorists. Reflections from the upper parts of the tower could potentially affect motorists. Because these solar reflections could only be seen by motorists at a far distance and that the reflections are outside their sensitive vision zones, they would not cause disability glare.
Also of significance is the effect of reflections in the vicinity of the Shrine at times of ceremonies and services and at times outside these services. Here the report concluded:18 At times outside ceremonies and services, sun angles in most cases do not direct reflections towards the Shrine. Early morning sun could sometimes cause sun glare to visitors for a short period. The sun reflectionʹs intensity in
17 Hyder Consulting, Facade Reflectivity Report, P9 18 Hyder Consulting, Facade Reflectivity Report, P9
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these situations however is low and would not cause discomfort to visitors The visitors could also look away to avoid sun glare. .... At times when there are ceremonies and services at the Shrine, the sun angles are high and sunlight reflections are not directed towards the Shrine. They therefore would not cause discomfort glare to visitors to the Shrine.
In its supplementary letter to the report, Hyder Consulting address reflections at Anzac Day, 25 April at the specific times of 8.00 am and 9.00 am. In so doing it noted that at times before 8.00 am, the sun is very low and its reflections will be blocked by surrounding trees; from 9.00 am onwards, the sun rises higher and moves further north; as a consequence, its reflections move to the south of the monument and are at angles such that observers on the forecourt would not see sun glare.
Mr O’Farrell submitted that the prospect of sun glare was an unacceptable outcome, particularly its impact on Anzac Day. He tabled a running sheet of the Anzac Day ceremony, which shows the wreath laying ceremony occurring on the forecourt between 8.00 am and 8.30 am.
Discussion
In the knowledge of the PAC, no Australian standard exists for design guidance or the regulation of reflected glare from building facades.
The PAC endorses the recommendation contained in the Facade Reflectivity Report that to reduce the intensity of sun reflections from the tower in general, glass of a reflectivity of less than 20% be adopted for use.
In so far as an objective assessment can be made of the experience of reflected glare, the PAC‘s view is that at times outside identified ceremonies and services reflections from the facade of the subject building are not an issue of a magnitude that requires a design response. It is noted that at such times the experience of the Shrine and precinct is ambulatory rather than static.
In relation to the morning period on Anzac Day, the experience of reflected glare from the proposed building at 8.00 am is limited to observers standing south of a position at the bottom of the Shrine steps; and at 9.00 am the experience is largely confined to an area west of the Shrine building. In the PAC’s view, the effect of glare at these times is potentially an unwelcome intrusion and suggests should the development proceed, a condition of permit require a further reflectivity report to be submitted to the satisfaction of the responsible authority in consultation with the Trustees.
MELBOURNE PLANNING SCHEME AMENDMENT C125/PLANNING PERMIT APPLICATION 2008/0758 PANEL REPORT: JUNE, 2009 Page 32 4.2.5 Will light spill have an adverse impact on the Shrine and reserve and Melbourne Observatory?
A late submission was received by the Astronomical Society of Victoria Inc which expressed concern with the impact of light spill from the proposed building, both specifically on the Melbourne Observatory and more generally. This submission also raised more general concerns about light pollution.
Submissions and evidence
Evidence and submissions were made to the PAC by Dr Barry Clark, in his role as Director of the Outdoor Lighting Improvement Section, of the Astronomical Society of Victoria, Inc Australia.
Dr Clark focussed on the effects of outdoor lighting in general and the obtrusive effects of the phenomenon on observations at the Observatory; he extended his observation to include the negative effects of light pollution on public health, growth in crime, and Aboriginal cultural heritage.
During his submission Dr Clark tabled an abstract of Australian Standard 4282 Control of the Obtrusive Effect of Outdoor Lighting, and suggested consideration of its application for the proposed development.
Discussion
Having perused the Standard AS 4282 Control of Obtrusive Effects of Outdoor Lighting, the PAC considers its application is limited to outdoor lighting as distinct from internal lighting sources; and further, it does not appear to have application for floodlighting the exterior of buildings. Accordingly, the PAC makes no findings in relation to this issue.
4.2.6 Are the amenity impacts acceptable, particularly on residents at 8 Dorcas Street?
A large number of submissions to the Amendment and objections to the application for planning permit were received from the residents at 8 Dorcas Street. Issues were also raised about the amenity impacts to the north, at 320 St Kilda Road. The submissions are summarised in section 2.1 of this report.
Submissions and evidence
Some of the 8 Dorcas Street residents who appeared before the PAC indicated that when they purchased their apartments they were advised by MCC that a 36 metre AHD height control applied to the subject land. Accordingly, they said they never anticipated a high rise building. It was for
MELBOURNE PLANNING SCHEME AMENDMENT C125/PLANNING PERMIT APPLICATION 2008/0758 PANEL REPORT: JUNE, 2009 Page 33 this reason they contended, despite living in the inner city, their amenity expectations concerning views, loss of sunlight and privacy were reasonable.
Overland’s planning and urban design witnesses addressed the amenity concerns raised by nearby residents, particularly at 8 Dorcas Street.
Ms Hansen identified the main amenity issues to be: spacing between buildings; access to outlook and sunlight; and overlooking.
Mr Sheppard also addressed the issues of outlook, sunlight and overlooking. Both relied on the urban context report prepared by SJB Urban and the architectural plans prepared by SJB Architects to prepare their statements.
Spacing between buildings
Mr Pitt tabled an A3 plan prepared by SJB Architects that showed the following separation distances of various elements of the proposed building and 8 Dorcas Street: 11.1140 metres at Level 11 of the proposed building and the adjoining building balcony; 13.750 metres above Level 11 of the proposed building and the adjoining building balcony; and 15.220 metres between adjoining building windows.
With respect to the building to the immediate north at 320 St Kilda Road, there is a light court 3.4 metres wide for a depth of approximately 33 metres. South facing terraces on two of the upper levels provide access to natural daylight and ventilation to these two apartments. The plans for the proposed building show: a 3.6 metre setback for a distance of approximately 17 metres from the subject site’s northern boundary, thus creating a total 7 metre setback between the two buildings for approximately 17 metres; a varied setback from 6.3 metres to 9.8 metres between the uppermost level terrace up to level 6 of the proposed building; and a 9.8 metre setback from levels 7 to 31 due to the elliptical design of the tower element.
Ms Hansen submitted that the proposed building provided adequate spacing and offset in relation to 8 Dorcas Street because: whilst the podium height of approximately 25 metres of the proposed building would be constructed to the western property boundary, the
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interface at this boundary generally matched the height of the car park levels at 8 Dorcas Street, so there was no impact on residential amenity by the podium form; from Level 7 to Level 31 of the proposed building, which comprised the tower element, the building would be setback by adopting an elliptical form which receded back in a north‐east and south‐east alignment away from the eastern face of 8 Dorcas Street; and the 8 Dorcas Street building itself is setback from its eastern boundary line by adopting a north‐west alignment for its higher levels combined with a setback at its north‐west corner.
Access to outlook and sunlight
Ms Hansen noted that 8 Dorcas Street had not been designed to anticipate the development of 324‐332 St Kilda Road, and that the eastern facing apartments would lose their eastern outlook across to the Shrine and reserve.
Further, Ms Hansen stated that even if the 324‐332 St Kilda Road site was developed to a height of approximately 60 metres the eastern apartments of 8 Dorcas Street would result in a marked change in views and outlook.
However, Ms Hansen submitted the tower element had been designed to minimise the impact to the 8 Dorcas Street residents. She stated:19 The current proposal seeks to manage and minimise these potential off site amenity impacts by a combination of increasing setbacks, use of an elliptical tower form and a dominance of curtain glass walls for the tower element. This means that for those east facing apartments at the northern or southern most edges of 8 Dorcas Street the tall tower element will recede away from their view line allowing oblique views around the edges of the tower. I recognise that for the apartments closer to the mid point of the east elevation of 8 Dorcas Street the angle of view becomes tighter – I estimate it to be in the order of 38 degrees at its worst point for the north‐ northeast viewing arc and 48 degrees for the south‐southeast viewing arc. Obviously the further away from this mid point on the eastern elevation of 8 Dorcas Street at each level of this existing development above proposed level 6 (being the roof of the podium) the viewing arc increases. I consider this outcome to be reasonable given the orientation and form of 8 Dorcas Street.
19 Paragraphs 90 and 91 of Ms Hansen’s expert statement
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Ms Hansen also provided some analysis of the impact of shadow on the building at 8 Dorcas Street, and stated that:20 This analysis indicates to me that the shadow impacts of the proposed development on the east facing apartments at 8 Dorcas Street will be greatest at 9am but by 10am onwards these shadows are affecting fewer apartments and, by 11am the extent of shadow is minimal due to the shadow being cast on the south west corner of the Dorcas Street complex.
It was concluded thus:21 Based on my summary of the extent of shadows that would be cast on the east facing apartments at 8 Dorcas Street I am of the opinion that the impacts have been significantly reduced due to the shape and alignment of the tower element. Whilst there will be a loss of direct sunlight to more than half of the east facing apartments at 9am on 22 September, the shadow impacts will be reduced from this time onwards with the shadows off the east elevation of 8 Dorcas Street just after 11am. I consider this to be a fair and balanced approach to the issue of sunlight and, of lesser impact than if the proposed development was 65m and adopted a podium tower form which was rectangular in shape and aligned in a north south alignment as is generally the case with 8 Dorcas Street.
Ms Sheppard reached similar conclusions, and stated:22 In my view, it is not reasonable to expect the same standards of amenity in an inner urban location such as this, as one would expect in a low‐rise residential suburb. Therefore, whilst the overshadowing impacts of the proposed development would not meet ResCode standards, I consider them to be reasonable in this situation.
With respect to the building to the immediate north, Ms Hansen stated that clearly there were no shadow impacts or loss of sunlight and that the current outlook for the south facing apartments is either a blank side boundary wall or the roof and plant equipment of the roof of the existing buildings on the subject site.
Overlooking
Mr and Mrs Dowd expressed concern that Apartments 4 and 5 at each level in the proposed building contain living areas that directly face the eastern facing apartments in 8 Dorcas Street, including their own apartment.
20 Paragraph 95 of Ms Hansen’s expert statement 21 Paragraph 97 of Ms Hansen’s expert statement 22 Paragraph 98 of Mr Sheppard’s expert statement
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Ms Hansen stated that in areas encouraging a substantial change in built form it is inevitable there would be a loss of privacy compared to what may occur in less dense, low rise areas. Notwithstanding, Ms Hansen submitted:23 In this regard I note that the proposal performs well in terms of seeking to maximise the physical distance between habitable room windows and balconies of the east facing apartments at 8 Dorcas Street. This is achieved by the adoption of the elliptical form which increases the setback of the proposed building line as one moves north or south along the western face of the development. Accordingly, the closest portion of the west facing wall to 8 Dorcas Street’s eastern boundary is 9.63m being in excess of the 9m distance if that is adopted as a benchmark figure. This setback then increases significantly due to the curvature of the western wall – a technique which I consider to be creative in minimising off‐site amenity impacts to neighbouring properties and visually exciting in terms of the overall appearance of the development as a whole.
Mr Sheppard also considered that the proposed development had been positioned to provide a minimum separation between the two towers of 16.8 metres.
Discussion
Having regard to the submissions and evidence of this matter and inspections of the site and surrounds, the PAC considers that: it is surprising that the residents who believed the St Kilda Road land was subject to a 36 AHD height control would make a substantial purchase to acquire their properties enjoying extensive views without confirming the nature of the planning controls that applied on nearby sites; notwithstanding these claims, expectations of loss of outlook, loss of sunlight and overlooking must be considered in the inner city context of a major capital city such as Melbourne; whilst there were some discrepancies between the setback distances of the proposed building and the building at 8 Dorcas Street in the plans lodged with the planning application and the A3 plan tabled by Mr Pitt during the Hearing, the discrepancies are not significant in the impact of amenity; the proposed building with the elliptical tower form contains loss of outlook and sunlight and overlooking to acceptable standards for the eastern face of 8 Dorcas Street given the urban context;
23 Paragraph 101 of Ms Hansen’s expert statement
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indeed, the overlooking complies with the ResCode standard of 9 metres that applies in low density, low rise areas; despite providing some setback off its eastern boundary, the building at 8 Dorcas Street has not been designed to anticipate in any way future development of adjoining sites. As well as the proposed building at 324‐332 St Kilda Road, the PAC notes that the outlook of residents on the western side of 8 Dorcas Street could be substantially affected by the proposed development of the building at 18‐24 Dorcas Street and the outlook of residents on the northern side could be affected by the proposed SJB development at 25 to 27 Coventry Street; it is acknowledged that should the proposed building not be constructed and that a future proposal complied with a lesser building height, it is possible that such a building would be constructed to the property boundaries and have a greater impact on adjoining buildings, particularly 8 Dorcas Street; there are no significant adverse amenity impacts to the building at 320 St Kilda Road given it lies to the north of the subject site, the current outlook of a blank wall and roof top equipment to the south and the existing 3.4 metre setback for a distance of approximately 33 metres; and the PAC’s overall conclusion is that the proposed building will not result in unacceptable amenity impacts, particularly to the building at 8 Dorcas Street.
4.2.7 Does the lack of a setback to the building to the north impose unreasonable constraints to future development to the immediate north?
The building to the immediate north at 320 St Kilda Road is setback 6.2 metres off the southern property boundary for approximately 33 metres from the western property boundary (i.e. at Anthony Lane). A small portion of the remainder of the building is setback from the southern property boundary. A question for consideration is whether the proposed building would unnecessarily constrain development opportunities of 320 St Kilda Road.
Submissions and evidence
It was submitted by MCC that the proposed development does not allow for an equitable sharing of development opportunities with the site to the immediate north at 320 St Kilda Road. Mr Chiappi stated that:
The absence of setbacks from the northern boundary for the proposed development places a level of constraint on the form of adjacent development to
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the north that is unreasonable. Orderly urban planning outcomes rely on mutual obligations to provide for amenity rather than a principle of first in first served. To maintain amenity for the subject site into the future including reasonable privacy, amenity, access to sunlight and views of the northernmost unit, an obligation would exist for the adjacent property to set back substantially.24
In response, Overland’s architect Mr Charles Justin stated during questioning that the multi‐ownership of the existing building at 320 St Kilda Road would reduce the likelihood of this site’s re‐development.
Further, Mr Pitt stated that Overland relied on the principles set out in Cremorne Corporation Pty Ltd v Yarra CC [2008] VCAT 1202, where the Tribunal said (at paragraphs 63 and 68): The council and Richmond Plaza argue that the east side setbacks proposed do not provide for an equitable sharing of development opportunities between the site and the Plaza’s land. Essentially it was argued that a 4.5 metre setback to the edge walls and balconies should be provided on this site, replicated on the Richmond Plaza site so as to achieve the desired 9 metre separation between dwellings, a concept that accords with some of the standards set out in clause 55. … The notion of equity does not in itself mean equal. The reality is that expectations as to what can be achieved from site to site varies.
Mr Pitt also referred to the Guidelines for Higher Density Development, which provides for “an equitable spread of development opportunities” and ensure “areas can develop with an equitable access to outlook and sunlight.”
Discussion
Having regard to the above submissions and evidence and its inspection of the site and surrounds, the PAC considers that: the multi‐ownership of the existing building to the immediate north at 320 St Kilda Road reduces the likelihood of the re‐development of this site, however it could not be said that it renders the site’s re‐ development as to be impossible; the proposed development on the subject site would not have an adverse impact on achieving solar related design objectives for any future development at 320 St Kilda Road, given it lies to the north of the subject property;
24 Paragraph 65 of Mr Chiappi’s submission
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the proposed building’s elliptical design which setbacks the tower form from the northern boundary in a curvicular shape leaves a reasonable development opportunity for 320 St Kilda Road, at least above 25 metres; and notwithstanding the above finding, it would be undesirable for 320 St Kilda Road to also be developed in tower form because of the “wall effect” on the St Kilda Road streetscape and the potential overwhelming impact on the Shrine of Remembrance.
4.2.8 Are the traffic and car parking impacts acceptable?
Vehicular access to the proposed building is to be from Anthony Lane which runs parallel to the western boundary. Access from Anthony Lane is from Dorcas Street to the south and Coventry Street to the north.
Car parking is to be provided in an eight level basement, which will also include plant and equipment rooms, loading/unloading areas and storage.
A total of 389 car parking spaces, 71 motorcycle spaces and 90 bicycle spaces are to be provided in the basement.
Submissions and evidence
MCC did not object to the application on traffic or car parking grounds. However, Mr Chiappi referred to Council’s letter dated 2 September, 2008 to DPCD that proposed a number of proposed conditions prepared by Council’s traffic engineers should be included on the permit to address concerns with dimensions of some car parking spaces and the impact on vehicular manoeuvrability.
A number of residents objected to the application on traffic and car parking grounds. Their main concerns were: the potential of increased traffic congestion within the surrounding road network during peak hours – specifically queuing along Wells Street (from the Park Street intersection) and the St Kilda Road/Dorcas Street intersection; and the adequacy of the proposed provision of on‐site car parking.
Mr Henderson, who resides at the Royal Domain Apartments, had a major concern with the capacity of Anthony Lane, which he estimated to be used to access 781 car parking spaces.25 He stated that the City of Melbourne required access to 8 Dorcas Street to be offset off Anthony Lane and for
25 As shown on the Parking Plan tabled by Mr Henderson
MELBOURNE PLANNING SCHEME AMENDMENT C125/PLANNING PERMIT APPLICATION 2008/0758 PANEL REPORT: JUNE, 2009 Page 40 separate entry and exits to be provided. He considered that if the development was approved Overland should be required to provide access directly onto Dorcas Street and thus avoid using Anthony Lane.
Overland engaged GTA Consultants to prepare transport impact evidence to the PAC.
Mr Kiriakidis expert statement contained the following conclusions: Based on the analysis and discussions presented within this report, the following conclusions are made: · The proposed development generates a statutory parking requirement of 578 spaces, for those uses with nominated rates; · The proposed supply of 389 on‐site car parking spaces and some 71 motorcycle parking spaces is considered to be appropriate having regard to the relevant decision guidelines; · Any off‐site office and residential visitor car parking can be accommodated within on‐street and off‐street car parking vacancies in the vicinity of the site; · The proposed parking layout is consistent with the dimensional requirements as set out in Melbourne Planning Scheme and/or Australian/New Zealand Standard for Off Street Car Parking (AS/NZ2890.1‐2004); · A total of 90 bicycle spaces are proposed on the subject site, exceeding the statutory requirement; · The provision of a rear loading bays in excess of the statutory requirements and is considered appropriate given the likely waste collection requirements of the development proposal; · The site is expected to generate up to some 200 and 1,000 vehicle movements in any peak hour and daily respectively; · There is adequate capacity in the surrounding road network to cater for the traffic generated by the proposed development; and · Provision is made for all access arrangements to operate safely and efficiently.
During the Hearing, Mr Jolson asked Mr Kiriakidis whether the traffic impacts and car parking assessment had taken into account recent approved development, specifically the proposal for 270 dwellings at 18‐24 Dorcas Street.
Mr Kiriakidis stated that his report had not taken into account the proposed development at 18‐24 Dorcas Street, but his analysis had not subtracted the
MELBOURNE PLANNING SCHEME AMENDMENT C125/PLANNING PERMIT APPLICATION 2008/0758 PANEL REPORT: JUNE, 2009 Page 41 traffic and car parking generated by the current uses of the subject land. However, Mr Pitt tabled a supplementary report prepared by Mr Kiriakidis that took into account both developments. Mr Kiriakidis’ conclusions were: · The on‐street car parking demands generated by the proposed development at 18‐24 Dorcas Street, Southbank are expected to be predominantly associated with residential visitor demand and hence not directly compete with the office demands generated by 324‐334 St Kilda Road Southbank; · There are sufficient on‐street car park vacancies to accommodate peak demands simultaneously generated by both development sites; · Additional off‐street car park vacancies exist in numerous car parks located in the vicinity of the subject site which supplement the available on‐street supply; and · There is considered to be sufficient capacity within the surrounding road network to accommodate traffic generated by the 324‐334 St Kilda Road site plus the additional 75 peak hour traffic movements generated by the proposed development at 18‐24 Dorcas Street.
Discussion
Having regard to the submissions and evidence of this matter and inspections of the site and surrounds, the PAC considers that: whilst acknowledging that there are very high traffic volumes in the vicinity of the site especially during peak periods, the proposed development would not add to traffic volumes to the extent that would justify refusal of the application; Anthony Lane is adequate to cater for additional traffic generated by the development, and notes that MCC, which is responsible for the management of this laneway, did not raise concerns with the use of Anthony Lane; Anthony Lane is also adequate to provide vehicular access to the site, and it is not necessary that access be provided directly onto Dorcas Street; given the provision of public transport in St Kilda Road, good pedestrian links to central Melbourne, the availability of both commercial car parks and on‐street car parking, the dispensation to provide the maximum amount of 578 car parking spaces is justified; and given the dimensions of the car parking spaces referred to in MCC’s letter of 2 September is less than 50mm than Council’s preferred standard and Mr Kiriakidis’ evidence that the car parking layout is
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generally consistent with the Australian/New Zealand Standard for Off‐ Street Car Parking (AS/NZ2890.1‐2004), it is not necessary to impose the amended conditions on the car parking layout suggested by MCC’s traffic engineers.
4.2.9 Is the proposed development in accordance with the existing policy framework?
Submissions and evidence
The submissions and evidence on the existing planning policy framework presented by the parties to the proceeding were made in relation to both Amendment C125 and the application for planning permit, and are summarised in section 5.2.3. Accordingly, it is not necessary to repeat these submissions here.
However, it is worth noting that Overland’s representatives and expert witnesses stressed that approving the development was important to achieve urban consolidation and higher density built form.
Discussion
As stated in section 3.2.1, the PAC considers that it should assess the proposed development against all relevant policies and to make its recommendation based on net community benefit.
In broad terms, the competing policies are those that support high rise development in this location on the one hand, and policies to ensure development are respectful of culturally significant places and the cultural identity of places on the other hand.
Further, there are policies that promote good urban design and architectural excellence that are relevant to this proposal.
Given planning objectives to support high rise development and promote design excellence and the absence of a height control applying to the subject site that specifically addresses the impact of height on the Shrine of Remembrance, the PAC considers that the existing policy framework does not provide a strong case to refuse the development.
Indeed, it was noted by Mr Lovell and other experts that other than the Shrine vista control there are no explicit planning controls that protect the cultural significance of the Shrine from inappropriate development.
Despite the lack of an explicit control protecting the cultural significance of the Shrine from inappropriate development, the PAC considers that there are
MELBOURNE PLANNING SCHEME AMENDMENT C125/PLANNING PERMIT APPLICATION 2008/0758 PANEL REPORT: JUNE, 2009 Page 43 broader State and local policies to consider in assessing the impact of development on cultural significant places relevant to the Shrine. These include the following:
Clause 15.11: Planning and responsible authorities should identify, conserve and protect places of natural or cultural value from inappropriate development. These include: · Important buildings, structures, parks, gardens, sites, areas, landscapes, towns and other places associated with the historic and cultural development of Victoria, including places associated with pastoral expansion, gold mining, industrial development and the economic expansion and growth of Victoria.
Clause 19.03: Context Development must take into account the natural, cultural and strategic context of its location Landmarks, views and vistas Landmarks, views and vistas should be protected and enhanced or, where appropriate, created by new additions to the built environment
Clause 21.02‐3 While mostly known for Victorian and Edwardian streetscapes; many examples of outstanding interwar, post war and contemporary architecture exist in the municipality. The City of Melbourne contains many precincts, intact streetscapes and buildings which are recognised for their cultural heritage significance. Their preservation is vital to the continuing character of Melbourne
Clause 21.05‐2 City structure and built form Structure and character Protect Melbourne’s distinctive physical character and in particular, maintain the importance of: · Identified places and precincts of heritage significance Maintain cultural heritage character as a major distinguishing feature of the City and ensure new development does not intrude visually so as to damage the character and heritage value of these areas
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Clause 21.05‐4 Parks, gardens and open space Ensure that development within and surrounding the City’s parks and gardens does not adversely impact on the solar access, recreational, cultural heritage, environmental and aesthetic values, or amenity, of the open space
Clause 22.17 The height of new development should respect the existing built form of the immediate surroundings.
In the PAC’s view, the proposed development does not adequately respond to the above provisions in the policy framework because of the adverse impact on the cultural significance on the Shrine of Remembrance. Specifically, the proposed development would cause an unreasonable intrusion into the ambience of the Shrine as it pertains to the area around the forecourt and Cenotaph. Objectively, in views to the west across the Shrine’s forecourt and from further east, the proposed tower on Nos. 324‐332 would be to cause a substantial increment to the building bulk visible to the west which presently consists of two tall towers (Royal Domain Apartments and St James building) and a range of other substantial, mid‐height buildings that are part of the general scene to the west and south‐west.
Further, the proposed new tower would change the existing group of two tall towers to west of the Shrine into a cluster of three, with the new tower appearing taller against the skyline (even though not physically the tallest of the group). This perception of height would be greater for view points closer to the tower (although, as pointed out earlier, the sense of these towers as overbearing the Shrine is enhanced for viewpoints further west). The PAC does not consider the fact that the proposed tower would be closer to the Shrine than the other towers to be a concern per se; rather, its concern is that it would be perceived as having greater bulk in terms of height and width.
In passing, the PAC notes that neither the proposed building at Nos. 324‐332 nor any additional building that could be constructed on No. 320 or 318 in the absence of any height limits would have a significant impact on views of the Shrine from along its northern axis or in views from the southern axis along St Kilda Road. The visual impact of this axis and its associated plantings is very strong and the offset of the Amendment area is sufficiently substantial that any such buildings would tend to be seen as separate from and not intruding on the Shrine.
With respect to concerns about overlooking, the PAC was not persuaded that additional overlooking from nearby buildings would compromise the
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Shrine’s existing degree of isolation. There is already a considerable degree of overlooking of activities that take place within the Shrine: from passers by on adjoining streets close to various memorials; from other visitors attending within the reserve itself including those on the Shrine’s upper balcony; from people who can be identified on the upper floors of nearby tall buildings.
The PAC considers that its recommendation that the proposed development should be refused does not compromise the objectives to promote urban consolidation and higher density built form.
While there are references in the planning scheme to promote high rise residential development on the subject land, it is significant, in the PAC’s view, that height controls in the general area do not exceed 60 metres whereas there are other locations, specifically the core Southbank area and Docklands, where height controls allow buildings up to 160 metres high. It is in these areas where the planning scheme specifically encourages greater urban consolidation objectives and higher density built forms than the subject site.
Accordingly, the PAC concludes the proposal does not achieve a net community benefit.
4.2.10 How should land surrounding the Shrine be managed?
During the course of the Hearing, a question arose as to whether provisions under the Heritage Act, 1995 could be invoked to include surrounding land in a Registered Place and thus provide greater protection to the cultural significance of the Shrine.
Submissions and evidence
Ms Brennan, assisting Mr Pitt for Overland, contended that if there were concerns with the potential impact of development on land surrounding a Registered Place, a course of action open to the Executive Director of Heritage Victoria is to apply section 37 of the Heritage Act, 1995. This clause states: 27. Registration of additional land (1) If the Executive Director considers that – (a)… (b) land surrounding a registered place or nominated place is important to the protection or conservation of that place or contributes to the understanding of that place –
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He or she may accept a nomination that that land be added to the Heritage Register as part of that place. A nomination may be accepted under this section whether or not the land is in the same ownership as the place.
In response, Mr O’Farrell contended that this provision was not relevant because the subject land has never had an association with the Shrine land and therefore is not important for the protection or conservation of the Shrine and would not contribute to its understanding as a cultural significance place. In Mr O’Farrell’s view, section 37 should not be used to prevent inappropriate development.
Discussion
The PAC agrees with Mr O’Farrell’s view that section 37 of the Heritage Act, 1995 is more relevant to situations where surrounding land may have had a direct historical association with a Registered Place and its purpose is not to simply prevent inappropriate development.
In this case, the issue is one of how the context of a place of cultural significance, a context which consists entirely of places having no historical association with the place of cultural significance, should be managed to maintain an appropriate context for that place. The PAC notes that there are numerous examples of planning controls that seek to control development surrounding a place of cultural significance – usually through the control of height and typically using the DDO as the preferred means to this end.
However, if, say, the DDO is to be used for this purpose, the selected height limit or any other aspect of the DDO’s control that is used to protect the cultural significance of a place should draw on the guidance offered by that place’s statement of significance (just as, for example, the Conservation Management Plan (CMP) should also be based on the Statement of Significance, as its purpose should be to maintain that identified significance).
There are two relevant Statements of Significance for the Shrine, one in the CMP, one by Heritage Victoria. The CMP has, at this moment, no statutory weight so that any planning scheme controls directed towards the Shrine’s conservation would have to rely on the latter. However, Heritage Victoria’s Statement of Significance makes only a passing reference to any cultural value that is derived from the Shrine’s isolation from surrounding tall buildings and it does not explicitly emphasise this feature as being of great importance relevant to other aspects of the Shrine:
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… is of aesthetic significance for its design within the landscape, which ensures prominence and vistas from all directions. …
In contrast, the CMP’s Statement of Significance places somewhat greater emphasis on this feature of the Shrine: Aesthetically and architecturally, the Shrine is a place of great ceremonial purpose, derived essentially from the combination of its cenotaph form with an interior. This approach is heightened by the Shrine’s isolated and elevated siting on the edge of the city, its highly formal and axial site planning …
In the PAC’s view, the latter statement of significance has greater consistency with the points made in Mr O’Farrell’s submission and Mr Lovell’s evidence, points that the PAC has supported in its conclusions elsewhere. The PAC suspects that those who draft such statements of the significance rarely do so with a view to guiding the design of extraneous planning controls.
To this end, the PAC considers that Heritage Victoria should consider reviewing the Shrine’s Statement of Significance with a view to better reflect those aspects of the Shrine’s significance that bear on the impact of external development.
4.2.11 Does the CMP provide a statutory basis to consider the impact of the proposed development on the cultural significance of Shrine?
Submissions and evidence
In his opening submission, Mr Pitt stated that the CMP prepared by Mr Lovell’s former firm (Allom Lovell & Associates) addressed some land outside the Shrine and reserve, namely the north axis to the city and to the southeast. However, he noted the CMP did not address land to the west and there was no reference to the impact of shadows on the cultural significance of the Shrine.
In response, Mr Lovell stated that the main purpose of the CMP is to assess the cultural significance of the Shrine and associated reserve, and from this analysis to provide a framework to guide its future management. As such, there was no focus on the impact of development external of the Shrine’s land on the cultural significance of the Shrine. With the benefit of hindsight, Mr Lovell considered this to be unfortunate.
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Discussion
While the PAC notes the CMP does not address the impacts of external development on the cultural significance of the Shrine (other than the Shrine Vista control), the PAC’s understanding, from reading the Australia ICOMOS Charter for the Conservation of Places of Cultural Significance (Burra Charter), is that the main purpose of a CMP is to address the on‐going management of culturally significant places. It is therefore not surprising that the CMP does not address the impact of external development. However, as discussed above, it is desirable that the Statement of Significance be reviewed to address the impact of external development.
4.2.12 Draft Planning permit conditions
Appendix E includes draft planning permit conditions and have been included should the Minister decide to grant a permit. They are based on the conditions submitted by the Ms Porritt for the Minister at the Hearing.
A noted in section 6.8, the PAC concludes that some conditions relating to the size of car parking spaces and the impact of manoeuvrability suggested by MCC are not considered necessary. However, other conditions relating to the car park suggested by MCC in its letter to DPCD dated 2 September, 2008 are included in the draft permit.
Ms Brennan submitted that: condition 9 should be sufficiently flexible to allow for pedestrian lighting for safety and security at ground level and ambient lighting for the art gallery terrace; and condition 13 is too restrictive in regards to the possible playing of background amplified music on the art gallery terrace.
The PAC notes that condition 9 must be to the satisfaction of the responsible authority, which provides scope for discussion to occur between Council and the applicant.
To address Ms Brennan’s concerns with condition 13 the PAC recommends the additional words “to the satisfaction of the responsible authority.”
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4.2.13 Need for an “informed judgement”
In reaching a conclusion that the proposed development would have an adverse impact on the cultural significance of the Shrine, the PAC agrees with the statement made by the Shrine’s planning expert that the ultimate consideration as to whether a permit should be granted for the development requires an “informed judgement”. In other words, notwithstanding the objectives of the planning scheme, the impact of the existing built form and the positive attributes of the proposed building, the PAC needs to make an informed judgement as to its view of the impact of the proposed building on the cultural significance of the Shrine. While such an approach is largely subjective, in the PAC’s judgement the proposed building would have an overwhelming presence from significant viewpoints from the Shrine despite the existence of the two other towers from those viewpoints. Hence, its conclusion that the proposal should be refused.
4.3 Conclusions and recommendations
The PAC’s main conclusions are: the features of the Shrine’s purpose, design and setting enhance its perception as a culturally significant place that provides opportunities for individual contemplation and reflection, for solemn group ceremonies and to educate the community about the events that it commemorates; the proposed development would have an adverse impact on the cultural significance of the Shrine because it would cause a substantial increment to the building bulk visible from the western forecourt, which is one of the most important areas within the Shrine grounds for commemoration and reflection; while the impact of shadows from the proposed building may impact on people’s experience of the Shrine, due to the Shrine’s mature landscape setting where existing vegetation already casts extensive shadow it is difficult to relate this to the impact on the Shrine’s cultural significance, and is considered to be a less critical issue; the effect of glare from the proposed building during Anzac Day morning ceremonies is potentially an unwelcome intrusion, and should the development proceed a condition should be included on the permit requiring a further reflectivity report to be submitted to the satisfaction of the responsible authority in consultation with the Trustees; the amenity impacts of the proposed development are acceptable, particularly on the residents at 8 Dorcas Street;
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the traffic impacts are acceptable and adequate car parking for the development has been provided; given the cultural significance of the Shrine of Remembrance, it is appropriate, in this instance, that more weight is given to the policies that require the protection of culturally significant places than those policies encouraging urban consolidation and higher density development; Heritage Victoria’s Statement of Significance for the Shrine should be reviewed to address the impact of external development on the cultural significance of the Shrine; and the proposed development would not result in a net community benefit.
The PAC recommends:
Application 2008/0758 for a 117 metre high mixed use development be refused because it would have an unreasonable impact on the cultural significance of the Shrine of Remembrance.
Heritage Victoria should consider reviewing the Shrine’s Statement of Significance to address the impact of external development on the cultural significance of the Shrine.
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5. Amendment C125
5.1 Introduction
Amendment C125 as exhibited applies the Design and Development Overlay (DDO) – Schedule 43 to the land. DDO 43 currently applies to the west of the subject land in the area bounded by Coventry Street to the north, Wells Street to the west, Dorcas Street to the south and Anthony Lane to the east.
Specific changes to the Schedule as it applies to the subject land include:
A new design objective, as follows: To ensure that buildings and works are of a compatible scale to that of the Shrine of Remembrance.
An additional area to the Table in Clause 2, as follows:
Area Maximum Building Height Built form outcomes 2 60 metres New development that Podium height up to 25 metres which responds establishes a new high‐ to the dominant streetscape rise built form whilst maintaining the visual dominance of the Shrine of Remembrance Development provides a transition to lower built form fronting St Kilda Road by the use of podiums.
Amendment C125 was exhibited prior to the lodgement of the application for planning permit for the 117 metre high tower at 324‐332 St Kilda Road. Council was aware of the pending application and had sought to introduce height control to prevent the proposed development from proceeding.
5.2 Issues
Before considering Amendment C125, the PAC considers that it is appropriate to respond to the claims by MCC that the absence of a height control applying to the land was an anomaly.
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The PAC also notes the terms of reference require a response detailing: · the background context of Amendment C125 and issues associated with the ostensible omission of a height control on the land limiting development to 36.05 metres above the Australian Height Datum.
The PAC has identified the following issues it believes should be considered in examining the planning history of the subject land: Is the lack of planning controls relating to height on the subject land an anomaly or the strategic intention of MCC? Is the omission of a height control a significant matter in determining appropriate future controls for the subject land?
With respect to Amendment C125, the PAC considers that the following issues need to be addressed in considering the Amendment: Does the existing policy framework justify the introduction of the controls proposed in Amendment C125? Is the Incorporated Plan Overlay (IPO) applying to 236‐254 St Kilda Road, Southbank (the “Melburnian” site) relevant in considering the policy framework applying to the area? What is the relevance of the existing built form in determining the appropriateness of the controls proposed in Amendment C125? What is the importance of height controls relative to other urban design issues? What is the impact of potential towers on other sites on the subject land on the St Kilda Road streetscape and Shrine and reserve?
From the above analysis, the PAC considers that to meet its terms of reference it must make recommendations on the following: What planning controls, if any, should apply to the subject land?
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5.2.1 Is the lack of planning controls relating to height on the subject land an anomaly or the strategic intention of MCC?
Submissions and evidence
Melbourne City Council (MCC) considered that the absence of a height control26 was an anomaly that arose by the failure to effectively carry over height controls applying to the subject land from the old planning scheme into the new format planning scheme.
This anomaly was addressed in the following terms in the explanatory report that accompanied C125: From the 1970’s to 1999 the land was subject to a mandatory height control but this was inadvertently omitted when the then Planning Scheme was updated into a new format in 1999. A mandatory maximum building height of 36.05 metres above the Australian Height Datum applied. This is approximately 25 metres above the footpath in St Kilda Road.
Mr Chiappi for MCC tabled sections of the planning scheme controls that applied to the subject land under the old Melbourne Metropolitan Planning Scheme.
One such document was an extract of the Special Use Zone 8 and Special Use Zone 8A as at 25 May, 1975. Clauses 24 3(b) and (c) of Special Zone 8 included the following provisions: No buildings and works shall be constructed to a height exceeding 37 metres above the Melbourne and Metropolitan Board of Works datum; No buildings or works (other than a fence) shall be constructed closer than 3 metres to the boundary of the site which forms the frontage to St Kilda Road.
In addition, Clause 24(3) (a) required referral of a permit application to the Shrine of Remembrance Trustees. This provision stated: The design of the exterior of all buildings and the layout of all sites shall be approved by the responsible authority after consultation with the
26 The PAC accepts that in referring to height controls MCC was not referring to the Shrine Vista control (DDO-17), which applies between the corner of Swanston and LaTrobe Streets in the CBD and St Kilda Road to the southern boundary of MCC, including the subject land. A Shrine Vista control also applies in the Port Phillip Planning Scheme (DD0-3). It is understood that the Shrine Vista control has been in operation since at least 1986.
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Trustees for the time being of the Shrine of Remembrance and shall be keeping with the immediate environment of the Shrine of Remembrance.
Special Use Zone 8A included the following provision in Clause 24 4(a): Notwithstanding anything contained in this Planning Scheme save with the permission of the responsible authority – (a) no buildings or works shall be constructed to a height exceeding 23 metres above the Melbourne and Metropolitan Board of Works datum, on any land within 45.5 metres of the western alignment of such part of St Kilda Road as lies between Nolan Street and Coventry Street.
Clauses 24 4 (b) and (c) provided other descriptions of where the height controls that applied in the area generally south of the CBD. It was accepted these areas did not include the subject land.
As well as the sections of the former Melbourne Metropolitan Planning Scheme, Mr Chiappi tabled a plan of part of the former South Melbourne Planning Scheme dated 24 November 1994 showing the boundaries of the various zones that applied in the area. While the plan is not fully detailed in that the zone boundaries are not shown against all streets, the plan shows Special Use Zone 8 applying between Coventry Street to the north, Park Street to the south and Wells Street to the west. Hence, this plan included the subject land in Special Use Zone 8.
In addition, Mr Chiappi tabled an extract of the Melbourne Planning Scheme dated 21 September, 1995 indicating that the subject land was still included in Special Use Zone 8 and that a mandatory 36.05 AHD height limit applied. It is apparent from this document that the subject land had by that date been transferred from the former City of South Melbourne to the City of Melbourne; also that the planning scheme had been divided into local, regional and State sections following the introduction of the Planning & Environment Act, 1987.
Finally, Mr Chiappi tabled the exhibited version of Schedule 17 to the Design and Development Overlay that was to apply in the Melbourne new format planning scheme. The design objective of the schedule is To ensure that the Shrine of Remembrance and its outline as viewed from Swanston Street outside the State Library is not fully or partially obscured by any buildings or works. In other words, the purpose of the schedule is to implement the Shrine Vista control.
However, the requirements in the schedule include two separate height controls: a 33 metre discretionary height control applying in Area 33 and a 22.34 metre discretionary height control applying in Area 34.
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From an extract of the planning scheme map of the Design and Development Overlay 17 that was attached to Mr Lovell’s addendum report, who was called to give heritage evidence by the Trustees, the subject land was included in Area 34. However, the PAC notes that the description of Area 34 in the DDO schedule appears to exclude the subject land.
Mr Chiappi referred to the Panel and Advisory Committee report which considered the Melbourne New Format Planning Scheme in 1998. This report recommended that either DDO 17 remove reference in the decision guidelines to the Shrine Vista Height Control formula or clarify its role so there is no inconsistency between building heights specified and the decision guidelines.
Mr Chiappi stated that Council’s Planning, Development and Environment Committee report dated 13 July, 1998 noted (at paragraph 15) that, since receipt of the report on the new format scheme, all height controls had been re‐analysed to remove any uncertainty or ambiguity as to the policy basis and expected outcomes of specific controls. This report also stated that future and current local area planning studies including Southbank may recommend change to development controls.
Further, Mr Chiappi submitted that Council did not agree with the Panel’s recommendation on DDO ‐ 17, as the Council report referred to above stated that the option of deleting the general height control was currently being reviewed; and that the formula providing the specific building envelopes required to protect the Shrine vista should not be deleted.
Mr Chiappi concluded thus: DDO17 was adopted without the express height control.27
With respect to the Built Form Review that was undertaken in 2000 and considered as part of Amendment C20, Mr Chiappi stated that: The subject land does not appear to have been reviewed as part of that amendment.28
The Shrine of Remembrance supports Council’s version of the history of the planning controls applying to the subject land. Mr O’Farrell for the Trustees stated that with the introduction of the new format planning scheme the height controls simply vanished, and that there was no explanation as to why they did not form part of the exhibited new format planning scheme.
27 Paragraph 16 of Mr Chiappi’s submission 28 Paragraph 18 of Mr Chiappi’s submission
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Earlier in the proceedings Mr O’Farrell sought a direction from the PAC that MCC and the Minister for Planning produce the following documents: Copies of departmental briefings, panel or officer reports which explain the background and approval of the following planning controls: Special Use Zone 8 under the old format South Melbourne Planning Scheme. In particular, Clause 3 (b) which previously applied a 37 metre height control for the Amendment land; DDO3‐8 of the Port Phillip Planning Scheme. Planning controls which pre‐existed the Special Use Zone 8 affecting the Amendment land.
Ms Porritt for the Minister for Planning tabled correspondence from the Department of Planning & Community Development (DPCD) that advised that historical information from 1946 until the introduction of the new format planning schemes in 1997 and 1999 would not be available until mid April 2009.
Mr Pitt for Overland stated in his opening submission to the PAC that the fact that the site was historically subject to a mandatory height control did not provide a strategic basis for the Amendment and the Council did not seek the opportunity in the subsequent Built Form Review or the MSS Review in Amendment C60 to introduce height controls for the site.
In his cross‐examination of the Shrine’s expert witnesses, particularly Mr Biles, Mr Pitt sought to seek clarification whether: referral to the Trustees under Clause 3(a) of Special Use Zone 8 was confined to the exterior design of buildings and not height per se, particularly as the provisions relating to height were in a separate clause; and Clause 4(a) of Special Use Zone 8A did not include the subject land because the control only applied between Nolan Street (now Southbank Boulevard) and Coventry Street, which lies north of the subject land.
Further, Mr Pitt stated in his right of reply that: the assertion that the subject land was governed by two controls, namely a height control in the Special Use Zone 8 and the Shrine Vista control is wrong; and the Built Form Review explicitly included the subject land in the study.
Mr Pitt’s written submission included a number of references where it appeared that the subject had been included in the study.
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Discussion
The PAC considers that it needs to develop its own conclusions as to whether: the historical planning controls applying to the subject land did contain height controls that expressly “protected” the Shrine and reserve; the Built Form Review included the subject land in the review of height controls applying to the subject land; and the MSS review included the subject land in the review of height controls applying to the subject land.
Did the historical planning controls applying to the subject land contain height controls that expressly “protected” the Shrine and reserve?
Because of local government amalgamation and changes to Victoria’s planning system, it is first useful to describe the different planning controls that appeared to apply to the subject land over the years. First, there was Special Use Zone 8 and Special Use Zone 8A under the Melbourne Metropolitan Planning Scheme. This scheme was in place until 1 February, 1988. Second, with the introduction of the Planning & Environment Act, 1987 when planning schemes were structured into State, regional and local sections, Special Use Zone 8 applied under the South Melbourne Planning Scheme after 2 February, 1988. Third, following local government amalgamation in 1993/94, Special Use Zone 8 applied under the Melbourne Planning Scheme. Finally, with the introduction of the new format planning scheme under the Victoria Planning Provisions (VPPs) in 1999, the land was included in a Mixed Use Zone (DDO17 was exhibited, but not introduced).
From the historical information provided by MCC and the submissions and evidence on this matter, it appears to the PAC that: despite the tabling of copies of extracts of the Melbourne Metropolitan Planning Scheme Ordinance as at 25 May 1975 relating to the Special Use Zone 8 and 8A provisions, there was no primary evidence presented to the PAC that conclusively proved that Special Use Zone 8 applied to the subject land. This was because neither the Ordinance provisions tabled provided a description of where the Special Use Zone 8 applied nor was there a certified planning scheme map tabled that confirmed the zone boundaries;
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however, it is evident that Special Use Zone 8A did not apply to the subject land because the Ordinance provides a description of where the Zone applied, and it did not include the subject land;29 it would appear that after the introduction of the Planning & Environment Act, 1987 when planning schemes were structured into local, regional and State sections, the subject land was included in Special Use Zone 8 as the South Melbourne planning scheme map dated 24 November, 1994 includes the subject land in that zone; further, it would appear that after Council amalgamation the subject land was transferred to the City of Melbourne and the Special Use Zone 8 continued to apply; the Special Use Zone 8 in the local section of the Melbourne Planning Scheme as at 21 September, 1995, had two distinct purposes; namely: · to prevent incompatible development taking place near the Shrine of Remembrance; and · to preserve the vista of the Shrine from St Kilda Road and Bank Street. Special Use Zone 8 also contained the following provisions: 320C‐3 A building must not be constructed unless the exterior design and the layout of the site is to the satisfaction of the responsible authority. The design must be in keeping with the immediate surrounds of the Shrine of Remembrance. The responsible authority must consult the Shrine Trustees on the design. 320C‐4 Building height A building or works must not be constructed higher than 36.05 metres above the Australian Height Datum …. Before deciding on an application, the responsible authority must consult with the Shrine Trustees.
In other words, the Special Use Zone 8 in 1995 seemed to incorporate both the Special Use Zone 8 and Special Use Zone 8A from the former Melbourne Metropolitan Planning Scheme because it contained
29 It would appear Special Use Zone 8A did not apply to the subject land because it had a different purpose – i.e. to protect the Shrine vista.
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purposes and provisions that addressed the Vista control as well as a building height control; It would appear that the height controls provisions in Clause 320 were translated into the exhibited DDO‐17, which included a 33 metre discretionary height control in Area 33 (that did not seem to apply to the subject land) and a 22.34 metre discretionary height control in Area 34 (which expressly excluded the subject land); Despite the schedule expressly excluding the subject land from Area 34, the planning scheme map showing DDO17 boundaries appears to include the subject land in Area 34; Whilst there were two separate height controls in DDO17, the PAC notes that the design objective of DDO‐17 was confined to protecting the Shrine vista; The Panel and Advisory Committee that considered the Melbourne new format planning scheme specifically addressed the confusion over the purpose of DDO‐17, and recommended that it either include the Vista control or a height control ‐ i.e. have one or the other, but not both; In response to this recommendation, the MCC Planning, Development & Environment Committee report dated 13 July 1998 recommended that DDO 17 only contain the Vista control and that a review be undertaken of the height controls; and Whilst the provisions in Special Use Zones 8 and 8A appeared to confine comments from the Trustees to the design of the exterior of all buildings and the layout of all sites, there is nothing to suggest that the Trustees were prevented from commenting about height. Indeed it could be interpreted that the design of the exterior of a building could include matters of height.
Accordingly the PAC concludes that, based on the balance of probabilities, the subject land did, at least up until the time the new format planning scheme was introduced, contain both the Vista control as well as a height control that specifically addressed the impact of the height of nearby buildings on the Shrine and required the comments of the Shrine before deciding on an application.
Further, the PAC concludes that, given the recommendation of MCC’s Planning, Development & Environment Committee on 13 July 1998 to retain the Vista control and review the height control, that there was a clear intention to review the height control applying to the subject. There was no information provided to the PAC that indicated there was a strategic intention to exclude the subject land from height controls.
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In response to Mr O’Farrell’s request for additional background information on the history of planning controls, the PAC advised the parties during the Hearing that it considered historical departmental briefings, panel or officer reports would unlikely to be readily available.
In addition, while the terms of reference require the PAC’s consideration of the past planning controls, the PAC considers that its main focus should be on the appropriateness of controls applying to the land in the future and that it was unnecessary to go further back than when the Special Use Zone 8 applied from the time of the introduction of the new format planning scheme in the late 1990’s.
In rejecting Mr O’Farrell’s request, the PAC was also conscious that there was a danger that a pre‐occupation with the historical planning controls was not conducive to expediting the main purpose of this Hearing.
Given this perspective, the PAC was not overly concerned with Mr O’Farrell’s accusation that Ms Hansen, town planning witness called by Overland, had failed to fulfil her duties as a planning expert appearing before the PAC because she had not included analysis of the historical planning controls applying to the subject land.
Did the Built Form Review include the subject land in the review of height controls applying to the subject land?
From the information provided by MCC and the submissions and evidence on this matter, it appears to the PAC that: while the PAC accepts that the Built Form Review does include references that appear to include the subject land in the Study (as identified by Mr Pitt in his right of reply), the documents associated with the Study also include references that appear to exclude the subject land. These references include: the Urban Structure Plan and Landscape Structure Plan behind page 28 and the Development Interest Plan behind page 46 of the Background document; the Southbank Precinct Boundaries Plan behind page 78 and the Strategy Plan behind the page 115 of the Analysis document; and the Southbank DDO and Area Boundaries Plan behind page 68 of the Implementation document. further, the focus of the Review was on existing height controls. Under the heading Precinct Boundaries on page 7, the Report includes the following passage:
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Precinct boundaries used throughout this report relate to boundaries that exist between planning scheme amendment components (mainly Design & Development Overlays and areas included in the Mixed Use and Urban Design Policies). These precise boundaries were refined throughout the Review process. With respect to the last sentence in the above passage, the PAC was unable to find any references in the Review where the Southbank boundary was specifically refined to include the subject land in the Review; Whilst the text in section 9.4 of the Panel report (Amendment C20) that considered the Built Form Review refers to DDO25G (Dorcas Street/St Kilda Road), Map 1 – Southbank in Appendix D excludes the subject land from the Amendment. This Map is included in Appendix D of this report.
On the balance of probabilities, the PAC concludes that the Built Form Review did not include the subject land in the Study and that the exclusion was an oversight. It appears the oversight occurred because the focus of the review was on existing height controls under various DDOs, and, because the subject land was not covered by a DDO, it was excluded. Whilst this appears to a serious oversight, it is not the role of the PAC to reflect on the performance or otherwise of Council in this regard.
Did the MSS review include the subject land in the review of height controls applying to the subject land?
Mr Pitt stated that Council did not seek the opportunity to use the MSS review (Amendment C60) to review the height controls applying to the subject land.
From the PAC’s examination of the Amendment C60 Panel report, consideration was given by that Panel to general built form and urban design issues. With respect to the Southbank precinct of most relevance to the subject land, there was a recommendation in response to a submission by the City of Port Phillip to protect the boulevard nature of St Kilda Road by protecting wide medians and significant front setbacks; by maintaining large areas of public and private open space; and appropriately balancing active and non‐active uses for front setbacks. There was no specific recommendation in relation to height. Nor did the review include any changes to zones, overlays or schedules.
Because the review did not specifically address issues of height, it is not surprising that a review of height controls applying to the subject land was not included.
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The PAC’s terms of reference require it to produce a report detailing the nature and content of appropriate planning controls having regard to all planning considerations, including: · The past and present context of planning controls that have applied to the site and surrounding precinct along St Kilda Road including land in both the Melbourne Planning Scheme and Port Phillip Planning Scheme. · The background context of Amendment C125 and issues associated with the ostensible omission of a height control on the land limiting development to 36.05 metres above the Australian Height Datum.
The parties for and against the proposal sought to highlight the significance of the historical planning controls applying to the subject land. Mr Pitt for Overland expressed strong doubts as to whether the Special Use 8A ever applied to the subject land given the description as to where the zone applied in the Ordinance did not include the subject land, and noted during the Hearing there was no evidence provided to the PAC that proved the land was in Special Use Zone 8.
On the other hand, Mr O’Farrell submitted that from the information provided by MCC that past planning controls have been applied to the subject land that protected both the Shrine vista, and the interface between nearby buildings and the Shrine.
As noted above, Mr O’Farrell sought a direction from the PAC that it require the Minister for Planning and MCC to provide copies of departmental briefings, panel or officer reports on the previous planning controls that applied to the subject land. It would appear this request was made to provide conclusive proof of the existence of the planning controls and the reasons for their existence.
While the PAC accepts that having an understanding of the nature of the planning controls that applied to the subject land prior to the introduction of the new format Melbourne planning scheme is a relevant matter under the terms of reference and that confirmation of the controls that actually applied may have been useful to its understanding of the previous planning controls concerning potential impacts on the Shrine, it does not consider that this historical background is paramount in developing recommendations for appropriate future planning controls. Accordingly, the PAC concludes that the absence of a height control is not a significant matter moving forward.
MELBOURNE PLANNING SCHEME AMENDMENT C125/PLANNING PERMIT APPLICATION 2008/0758 PANEL REPORT: JUNE, 2009 Page 63 5.2.3 Does the existing policy framework justify the introduction of the controls proposed in Amendment C125?
In developing recommendations on the nature and content of appropriate planning controls for the subject land, the PAC’s terms of reference require it to consider the adequacy of the current Local Planning Policy Framework (LPPF) in terms of protecting the Shrine of Remembrance and surrounding gardens and St Kilda Road.
Submissions and evidence
The PAC was provided with considerable analysis of the current local policy framework on behalf of the MCC, the Trustees and Overland. These are summarised below.
In broad terms, Mr Chiappi for MCC highlighted the following provisions: the importance of protecting “enduring assets” (including historic buildings) under Clause 21.02‐3 of the MSS; to ensure that the scale, siting, massing and bulk of development complements the scale, siting, massing and bulk of adjoining and nearby built form under Clause 22.12 (Urban Design Outside the Capital City Zone); and encouraging a high rise built form on Dorcas Street on the corner of St Kilda Road in the area identified on Figure 14 of the MSS.
Having regard to these various provisions, Mr Chiappi stated:30 The Council acknowledges that there is policy support for higher density development opportunities within the Southbank precinct and along St Kilda Road. However, policies supporting residential growth should not be given greater weight than policies that promote the protection of culturally significant buildings or places. The area identified on figure 14 includes land which is subject to a discretionary height control. The built form objective of high‐rise development is supported by this height control. The planning scheme, by not providing a height control for the subject land, omits a significant guide or reference for the establishment of acceptable outcomes for the development of the land in terms of height. The Council submits that a height control of 36.05 m above AHD would be in line with the existing pattern of incremental height controls along
30 Paragraphs 35, 37, 38 and 39 of Mr Chiappi’s submission
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St Kilda Road both north to south (lower close to the city), and east to west (lower along St Kilda Road and the Yarra and higher in between). This is illustrated on plans of the current height controls in the immediate area as well as the broader Southbank context.
Mr O’Farrell for the Trustees generally supported the submissions made by Mr Chiappi, but added that given the purpose of Clause 22.05 (Heritage Places Outside the Capital City Zone) to ensure that new development….make a positive contribution to the built form and amenity of the area and are respectful to the architectural, social or historic character and appearance of the streetscape and the area, that:31 … consideration should be given to the nature of controls applying to buildings on the west side of St Kilda Road to ensure that the conservation and heritage values of the Shrine and the Reserve are recognised and protected.
Mr Biles, who gave planning evidence for the Trustees, provided an overview of current height controls applying in the precinct, but did not provide analysis of the existing local policy framework.
The planning and urban design experts called by Overland, Ms Roz Hansen of Hansen Partnership and Mr Mark Sheppard of David Lock & Associates respectively, included comprehensive analysis on the current local policy framework applying to the site and surrounds.
Ms Hansen made reference to the following provisions in support of her conclusion that a high rise development was appropriate for the subject land and that Amendment C125 was contrary to objectives to encourage high rise development:
Clause 21.08‐3 (Southbank Precinct) includes a vision that: Southbank continues to develop as an inner city neighbourhood providing opportunities for a mix of housing at different densities and scales.
The subject land is within a sub‐area identified as follows: Encourage high rise residential development with ground floor retail and small scale business uses.
This was in contrast to other areas in Southbank which encouraged a lower building scale because of:
31Paragraph 33 of Mr O’Farrell’s submission
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the impacts of the City Link Exhaust Stack in Grant Street and the need to maintain the visual prominence of the Shrine of Remembrance and Arts Centre Spire.
Further, Clause 21.08 ‐3 (Structure and character in Southbank) states: Encourage a high rise built form in Dorcas Street on the corner of St Kilda Road.
The clause also includes the following objectives: · Ensure that new tall buildings add architectural interest to the city’s skyline; · Ensure tower buildings are well spaced and sited to provide equitable access to an outlook and sunlight for tall towers; · Ensure that development maintains the view to the Shrine of Remembrance as an important landmark.
Ms Hansen also referred to Clause 21.05 (City structure and built form) which contain the following statements: St Kilda Road is an important business location as is the Hoddle Grid with this very wide, tree lined boulevard ‘interspersed with high rise development’ Other areas for high rise development in a campus style office layout mixed with high density residential development are Southbank and Docklands;
Figures 9 and 10 in this clause are relevant to the subject site. In relation to Figure 10, Ms Hansen stated:32 I note that Figure 10: Built Form Character as to whether all of the subject land and the two properties immediately to the north are within an area identified as ‘areas where a built form character change is envisaged – substantial change’ as the actual figure does not shade all of the said land within this designation. In my opinion this is simply an inadequacy in the quality of the maps which now often appear in planning schemes ‐ where the legibility of words and shadings in figures etc is often poor. Based on other provisions within the MSS it is my opinion that all of the land bound by St Kilda Road, Dorcas Wells and Coventry Streets is within an area designated as ‘Areas where a built form character is envisaged – Substantial change’. Outside the Capital City and Docklands Zone
32 Paragraphs 68 and 69 of Ms Hansen’s expert statement
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areas, these areas of ‘substantial change’ such as where the subject site is located, represent land anticipated to undergo substantial change. In my mind this includes taller, denser built forms as well as changes to the streetscapes, skyline and public realm of ground level conditions.
Ms Hansen distinguished the subject land from the built form character further to the west (west of Wells Street and bound by Dorcas Street, Kings Way and Coventry Street) , which contained lower height controls and were described as representing moderate change with medium rise buildings.
Hence, Ms Hansen concluded:33 This technique of stepping down height from the St Kilda Road edge (west side) has been in operation in the relevant planning schemes for many years and much of the current built form is testimony to this approach. Because of the very generous width of St Kilda Road, its established mature street trees and spacious proportions, which are complemented by extensive tracts of public parkland between the Yarra River and Domain Road, there is both the physical and visual capacity to absorb high rise tower elements… Furthermore, as one of Melbourne’s renowned tree lined boulevards, St Kilda Road has and continues to fulfil a vital strategic role for the Melbourne CBD as a linear corridor of high density residential and commercial development noting that the city living high rise apartment style developments have really only begun to have a strong presence along this boulevard since the mid to late 1980s.
Ms Hansen’s analysis also included references to Clause 21.05‐1 (City structure and built form – Built form amenity principles), which includes the following provisions: Maintain the visual prominence of historic buildings and local landmarks. Protect buildings, streetscapes and precincts of cultural heritage significance from the visual intrusion of built form both within the precincts and from adjoining areas.
Further, Clause 21.05‐2 includes the following: · the protection of iconic views including views to the Shrine along Swanston Street from the State Library; · maintaining cultural heritage character as a major distinguishing feature of the City and ensure new development does not intrude
33 Paragraphs 72 and 73 of Ms Hansen’s expert statement
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visually so as to damage the character and heritage value of these areas.
Ms Hansen provided an assessment of the proposed development rather than the Amendment against these provisions, however concluded that whilst the proposed building would undoubtedly be seen from the Shrine precinct “it was not a sin to be seen in a planning context.”34
Further, Ms Hansen contended that high rise in contemporary Melbourne meant more than 60 metres (which was the proposed height in the exhibited Amendment). According to Ms Hansen, recent high residential towers were evident in Southbank and Docklands, which clearly exceed 60 metres height.
However, in response to questions from the PAC and Mr O’Farrell, Ms Hansen was not prepared to indicate an appropriate height for the subject land other than to express support for the proposed 117 metre high building because of its architectural qualities and having regard to the existing built form in the area.
Mr Sheppard also provided a comprehensive analysis on the local policy framework, which is not necessary to repeat. However, it is worth noting that in response to the confusion as to whether the subject land was in a substantial change area (Figure 10 in the MSS), he concluded35: Whilst I cannot explain why the built form character of the Amendment land has not been designated for preservation or change in Figure 10 of Clause 21.05‐2, my interpretation of the other policy statements and controls is that substantial change is envisaged. Key factors leading to this conclusion are the encouragement in Clause 21.08‐3 of “high rise residential development” in the block bounded by St Kilda Road, Coventry Street, Dorcas Street and Wells Street compared with “medium scale development” to the west, and its strategy to “Encourage a high rise built form in Dorcas Street on the corner of St Kilda Road”.
Mr Sheppard also expressed doubt about the need for a height control. In his written statement, he stated36: However, it is questionable whether a limit is needed, let alone a mandatory control. There are a range of factors that contribute to a building’s visual impact, not only its height. Therefore, relying on a height limit to achieve a visually acceptable design solution is to unnecessarily constrain design creativity and development potential…
34 Paragraph 138 of Ms Hansen’s expert statement 35 Paragraph 30 of Mr Sheppard’s expert statement 36 Paragraph 38 of Mr Sheppard’s expert statement
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Finally, Ms Hansen referred to various provisions in the Melbourne planning scheme that sought protection of significant places such as the Shrine. Having regard to these provisions, Ms Hansen stated37: Furthermore, I do not believe the proposal will intrude visually on the heritage places in the immediate locality. I believe the new development will add to the visual interest of the area be it when the site is viewed from the Shrine precinct or from outside this precinct looking towards the Shrine itself.
Discussion
In terms of whether the existing local planning policy framework justifies the purpose of Amendment C125 to introduce a height control per se on the subject land, the PAC considers that: the local policy framework includes a number of provisions supporting higher density development and high rise building(s) on the subject land, particularly having regard to: Clause 21.05 and the acknowledgement that St Kilda Road is interspersed with high rise residential development; Figure 10 in Clause 21.05‐2, which distinguishes the land closer to St Kilda Road (i.e. the land bound by St Kilda Road, Coventry Street, Wells Street and Dorcas Street) and land further to the west as land where moderate change is envisaged; and Clause 21.08‐3 (Area 7 in Figure 14), which encourages a high rise development on Dorcas Street on the corner of St Kilda Road; further, the PAC accepts that, despite the apparent mapped exclusion of the subject land from a substantial change area in Figure 10 at Clause 21.05‐2, it is appropriate to interpret this map in conjunction with the Clauses 21.05 and 21.08‐3, which suggest that this is an area of substantial change.
On the other hand, the PAC considers that: when examining the height controls in the Southbank area south of the Southbank core, and also in the City of Port Phillip between Dorcas Street, Kings Way, Kings Place and St Kilda Road, it is clearly evident that height controls apply throughout the area and that the exclusion of the subject land from any height controls is an exception rather than the rule; further, the PAC notes that there are no height controls in the surrounding area exceeding 60 metres. While these height controls are
37 Paragraph 140 of Ms Hansen’s expert statement
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discretionary, the PAC does not consider proposals that substantially exceed this discretionary height are supported by the existing policy framework despite the existence of provisions that refer to high rise. In regard to this, the PAC endorses the following comment of the Melbourne C20 Panel report that considered the Built Form review:38 The Panel considers that if a building height is specified, there must be a sound reason for doing so which is clearly linked to achieving the design objectives set out in the schedule. Whether the requirement is mandatory or discretionary, it should reflect the desired built form outcome in the vast majority of cases. It is only in exceptional circumstances that the building height should be exceeded, and only then if the outcome will support the design objectives (or at least not undermine them). The Panel considers it weakens the status of a building height requirement if it is departed from too regularly. Such departures are a fair indication that the linkage between the height and the design objectives is tenuous. If the building height requirement is to be taken as no more than a guideline, it may be more appropriate to apply a policy rather than an overlay control. With respect to the two buildings in the area that substantially exceed the height controls, the St James building and the Royal Domain Apartments, it is significant to note that St James was a former Commonwealth defence building that did not require approval under the planning scheme and the approval of the Royal Domain Apartments clearly exceeded the 60 metre height control, without any publicly available rationale; despite submissions by Overland that the Domain Junction (i.e. the area around St Kilda Road, Domain Road, Park Street and Albert Road), is an area containing higher built forms, the area does not have any planning objectives to encourage a higher built form than the 60 metres height that applies in the general St Kilda Road area; in contrast to the 60 metre maximum height controls that apply in the area, the Planning Scheme contains opportunities for tower forms elsewhere in the Southbank area – namely, the 100 metre and 160 metre height controls in the core Southbank area; and Clauses 15.11 (Heritage), 19.03 (Design and built form) 21.02‐3 (Enduring assets) and Clause 22.17 (Urban design outside the capital city zone) all contain objectives and strategies that seek to ensure that
38 Page 22 Melbourne C20 Panel report
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development is respectful of culturally significant places and the cultural identity of places.
Following from the above analysis, the PAC’s overall conclusion is that, on balance, the local policy framework supports a planning scheme control on the subject land that is generally consistent with height controls applying in the surrounding areas.
5.2.4 Is the Incorporated Plan Overlay (IPO) applying to 236-254 St Kilda Road, Southbank (the Melburnian site) relevant in considering the policy framework applying to the area?
Schedule 1 to the Incorporated Plan Overlay (IPO) applies to 236 and 254 St Kilda Road (the “Melburnian” site).
The purpose of the IPO is to provide specific site controls for the redevelopment of that site. The specific controls include a schedule for height and setbacks – i.e. the further away from St Kilda Road the higher the building. Maximum building height range from 45 metres 45.5 metres from St Kilda Road to 75 metres 65.5 metres from St Kilda Road.
Two of the design guidelines are: To preserve the vista of the Shrine of Remembrance from St Kilda Road and Swanston Street. To ensure that development does not dominate the Shrine or detract from its appearance, having regard to viewing points from the centre point of the upper forecourt of the Shrine and the mid‐point of the eastern footpath of Princes Bridge.
Submissions and evidence
Mr O’Farrell for the Trustees submitted that the IPO confirmed that, in addition to the Shrine Vista controls, the planning scheme also sought to prevent development from dominating the Shrine. Mr O’Farrell also submitted that the IPO’s controls are similar to those applied under the SUZ8 and DDO3‐8 under the Port Phillip Planning Scheme and illustrate that a consistent built form is sought on privately owned sites within close proximity to the Shrine and Victoria Barracks.
Further, Mr O’Farrell noted that the site is considerably further away from the Shrine from the Amendment land, where the dominance issue is less important than the subject land.
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Mr Pitt for Overland did not make any formal submission on the IPO. In response to questioning, Ms Hansen stated that the purpose of the IPO appeared to be a re‐statement of the Shrine Vista control.
Discussion
The PAC was not provided with any background material associated with the introduction of IPO1 such as an explanatory report, nor was the PAC able to identify any individual planning scheme amendment that introduced IPO1 into the planning scheme. Such information may have shed further light on the purpose of the IPO.
Notwithstanding, from the PAC’s examination of the IPO, it appears that its purposes were to basically restate the Shrine Vista control (which explains the stepping back of the height of the building from St Kilda Road) and to prevent any building from dominating the vista from the given the wording in the Decision guidelines to: To ensure that development does not dominate the Shrine or detract from its appearance, having regard to viewing points from the centre point of the upper forecourt of the Shrine
Given the distance of the Shrine from the “Melburnian” site of over 500 metres together with the existing Shrine Vista control, the provision to ensure that any building does not dominate from the Shrine may appear a little surprising. However, in the PAC’s view there can be no disputing that the IPO has an express objective to prevent buildings dominating the Shrine in addition to the Shrine Vista control.
Because the IPO’s controls are specific to that particular site and quite original in design and because there is no apparent explanation as to why this was generally deemed necessary, the PAC does not place any weight on the IPO or draw any conclusions relevant to its task.
5.2.5 What is the relevance of the existing built form in determining the appropriateness of the controls proposed in Amendment C125?
In preparing a report on the nature and content of appropriate planning controls, the PAC’s terms of reference require it to consider: The height of development in the surrounding precinct and appropriate limitations on height that should be applied taking into account the context.
While there was no major disagreement on the descriptions of the urban context provided by the various experts called by Overland and the Trustees,
MELBOURNE PLANNING SCHEME AMENDMENT C125/PLANNING PERMIT APPLICATION 2008/0758 PANEL REPORT: JUNE, 2009 Page 72 there was a significant difference of opinion as to the appropriateness of the proposed controls given the existing context, particularly the Shrine and its reserve.
Submissions and evidence
For the sake of brevity as much as anything else, the PAC adopts the description of the urban context prepared by Mr Biles: Surrounding context Travelling along St Kilda Road from the Yarra River to Domain Road, land on the east side is used primarily for park land and gardens. There are a number of ceremonial monuments along this route, the pre eminent one being the Shrine. Beyond this parkland and gardens are the Botanical Gardens, Myer Music Bowl, Melbourne Observatory and Government House. It is an open parkland landscape, dotted with mainly ceremonial structures and memorials. On the opposite side of St Kilda Road (west) the buildings from the Yarra to Coventry Street are mainly associated with the arts, except for the residential tower called “The Melbournian” with its highest point at AHD 85.9m The Victoria Barracks starts at Wadey Street and extends to Coventry Street opposite the site of the proposed amendments. Most of these buildings are low in scale and often set amongst gardens and urban courtyards. Beyond these buildings, Southbank has been developed with a series of mixed use but largely residential buildings ranging in height from 2‐3 storeys to towers in excess of 20 storeys. In the main these buildings sit well back from St Kilda Road, and behind the Barracks and Arts precinct buildings. To the south west, from Coventry Street, a series of taller office and residential towers have been constructed. The most prominent of which are: • 8 Dorcas Street (73.6 AHD to highest element)* • 1 Albert Road, former BP offices and new apartments (90.50 AHD)* • St James Apartments (111.2 AHD)* • Royal Domain Apartments (157.90 AHD)* • Hallmark Apartments (72.2 AHD)* *(AHD information from SJB Design Response Drawings May 2008)
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Moving south beyond Albert Road and Melbourne Grammar School along St Kilda Road, office and residential buildings line either side of the boulevard with the shape and form influenced by height and set back controls that are designed to maintain axial vistas to the Shrine. The influence of these structures on the grounds of the Shrine becomes more peripheral as one moves southward down St Kilda Road.
Both Ms Hansen and Mr Sheppard for Overland emphasised that the Shrine has always existed in an urban environment, particularly to the north, west and south and that an evolving urban context should be expected to occur in a major capital city like Melbourne. Examples of early tall buildings clearly visible from the Shrine included the former Prince Henry hospital built in the late 1930’s, the former BP building built in the early 1960’s and the St James building constructed in the mid 1970’s.
Further, Overland’s legal advocate and expert witnesses submitted that a higher built form was occurring in an area they described as the Domain Junction – i.e. St Kilda Road, Domain Road and Park Street.
On the other hand, Mr Biles for the Trustees expressed concern that some elements of the evolving urban context, particularly the St James and Royal Domain Apartments, were unacceptable visual intrusions into the Shrine area and that proposals that encouraged any further significant visual intrusion should not be supported.
It should be noted that Mr Biles did not have any objection to the planning scheme encouraging tall buildings on the subject land other than for its impact on the Shrine and its reserve.
Both Ms Hansen and Mr Sheppard for Overland addressed the inappropriateness of the proposed height controls in Amendment C125 because of the existing built form.
Ms Hansen noted that four buildings were in excess of the 60 metre discretionary height, including St James Apartments (100m approx), Royal Domain Apartments (147m approx), the Domain Apartments (78m approx) and an office building at 390 St Kilda Road (85m approx.). Ms Hansen stated:39 In my opinion very tall buildings punctuate the St Kilda Road streetscape and skyline when viewed from within and beyond this boulevard. These buildings reinforce and celebrate the importance of the boulevard….
39 Paragraph 109 of Ms Hansen’s expert statement
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In terms of the visual impact on the Shrine, Ms Hansen stated that the perspective view from the Shrine forecourt – Cenotaph and Panoramic View from the Shrine forecourt (as depicted in SJB Urban Design Plan TP33):40 These views indicate that when looking west from this location to the surrounding urban areas the tall high rise buildings to the left of the Cenotaph are in full view and stand as ‘obelisks’ on the skyline. The proposed development will contribute to this view of tall elements rising to the sky with lower buildings and gaps of open sky between. There is almost a visual balancing effect produced by the presence of another tower element when standing at this location. I recognise that as one moves further south this sense of balance in the spacing and forms will alter and there will be a location where the alignment of the cenotaph is the same as the new development. Perhaps what this demonstrates is that firstly already the public have a clear view of the high rise buildings along St Kilda Road from this elevated vantage point and the addition of more such structures on the horizon is inevitable and indicative of a highly urbanised environment on the western edge of the heritage precinct. This is already the ‘context’ of the Shrine precinct and it is not unreasonable or inappropriate to envisage that this horizon will change over time as new developments rise from the ground to stand proud along the St Kilda Road boulevard. I note that the panoramic view (TP33) demonstrates how the podium elements of existing buildings and the proposed building can create a visual layer to the view whereby the tower elements can be either setback some distance from the St Kilda Road street edge or be much closer and yet give the impression of being on similar setback parameters. This is an interesting outcome in terms of the discussion about setbacks of tower elements on a podium base. Also this view shows the Melbourne CBD in the distance with the Eureka tower standing supremely high in this cityscape.
Mr Sheppard stated:41 The visual prominence of the Shrine is achieved by its position on the Swanston Street and St Kilda Road axes, so that it terminates long views. The Bank Street viewline provides similar prominence, albeit from a less significant viewpoint. The protection of these views is considered in section 3.5 below.
40 Paragraphs 132-135 of Ms Hansen’s expert statement 41 Paragraphs 61-65 of Mr Sheppard’s expert statement
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The visual prominence of the Shrine is patently not achieved by being the tallest building around. Therefore, a height limit is not required on the Amendment land to achieve this objective. In relation to visual intrusion, the photo below indicates that a number of taller buildings already intrude upon the experience of the Shrine. In other words, it is not a secluded experience, cut off from any sense of the city around it. On the contrary, the built form of the city provides an urban backdrop that is part of the character of the Shrine experience. Were this not the case, it might be argued that buildings near the Shrine should be limited in height so as to preserve a more secluded experience. But given that this opportunity no longer exists, there would seem to be little point in attempting to ‘lock the gate after the horse has bolted’. It should be noted that the Amendment land is approximately 230 metres from the Shrine. This is a substantial distance, which will alleviate the visual impact of buildings on the Amendment land. The Amendment land is also approximately 12 metres lower than the Shrine forecourt, further lessening the visual impact of development.
Mr Biles for the Trustees stated:42 On the north, eastern and southern quarters the Shrine and its grounds have an interface with gardens and low rise buildings. Because of its elevated position, it sits in a commanding position relative to these three quarters. On its western quarter the land falls to St Kilda Road and the carriageway sits below the Shrine building. The buildings fronting St Kilda Road are low rise (generally less than 36m AHD) and it is the structures behind and to the west that have the strongest visual impact. The exception is The Melbournian at 77m above ground (85.9 AHD), which has a smaller tower on St Kilda Road with the taller tower behind this element but still visually prominent. The group of towers from Park Street to Coventry Street are closer to the Shrine than The Melbournian. The effect of this is to reduce the sense of bulk and height of The Melbournian seen from the Shrine building and its immediate grounds. Standing within the northern forecourt of the Shrine (SJB Plan TP33 illustrates this condition) and looking west, the buildings on the St Kilda Road frontage are at, or below, 36m AHD. They have a courteous relationship with the Shrine and there is a continuing sense of
42 Pages 12-13 of Mr Biles expert statement
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spaciousness on this western quarter because the tops of these buildings sit almost at the same height as the base of the Shrine itself. The buildings that sit behind the 36m AHD control to the west, and which are around 60m in height (e.g. 8 Dorcas Street) continue to deliver a sense of spaciousness around the Shrine. This is because they appear as stepped and set back forms from the Shrine grounds and from St Kilda Road (SJB Plan TP32 illustrates this condition). The buildings that intimidate this sense of spaciousness are the Royal Domain Apartments and the St James Apartments which are 146.8m and 100m respectively above natural surface. They are simply too tall and too close to the Shrine building and particularly its western grounds. The Royal Domain Building is more than twice the 60m preferred height and the St James buildings 40m higher. Examining the series of perspective views in the SJB Architectural Design Response Plans (TP28, 29, 30, 31, 32 and 33) the presence of 8 Dorcas Street remains subservient to the Shrine, its grounds and the St Kilda Rd from all the viewing points shown in these perspectives. The 8 Dorcas Street building is effectively consistent with the 60m preferred height (the lift overrun and roof element take it to 65m) and it is set back 60m off St Kilda Road behind buildings that appear to be consistent with the 36m AHD.
Discussion
Given the above submissions and evidence and its own inspections of the site and surrounds, the PAC considers that: it is clearly evident that there has been an increase in both the number and height of buildings in the surrounding urban context from the late 1930’s to the present day to the north, west and south of the Shrine; this evolving urban context has occurred because of the location of the Shrine on the fringes of a major capital city, and by past planning policy that has encouraged high rise development south of the CBD where there were more development opportunities for high rise buildings; the existing urban backdrop consisting of the CBD and Southbank buildings to the north, the buildings in Queens Road to the west and the buildings in St Kilda Road to the south do not visually dominate the Shrine when standing at various point at the Shrine grounds, particularly the forecourt; buildings north of Park Street on the west side of St Kilda Road have a greater visual impact on the Shrine, particularly the Royal Domain
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Apartments and the St James building, and are unfortunate and undesirable visual intrusions into the Shrine environs; and the existing urban context, including the existing towers, is a relevant matter in considering the appropriateness of the proposed controls in Amendment C125.
Given the above findings, the PAC concludes that the purpose of Amendment C125 to restrict the height of buildings on the subject land has some justification notwithstanding the existence of tall buildings in the area that already have a visual impact on the Shrine.
5.2.6 What is the importance of height controls relative to other urban design issues?
In the submissions and evidence presented to the PAC and during the course of the Hearing, there was considerable discussion on whether height controls were warranted on the subject land given the importance of other urban design issues on producing acceptable design outcomes.
Submissions and evidence
Ms Hansen for Overland stressed that higher tower forms may be acceptable if there are articulated podiums and ground level active frontages, appropriate spacing’s between towers and the towers themselves are of architectural excellence.
Mr Sheppard expressed similar sentiments, and as mentioned above queried the need for any height controls on the subject land at all.
Mr Biles did not necessarily disagree with the above comments, but stressed that it was the cultural significance of the Shrine which justified a need for a height control in this instance.
Discussion
The PAC notes that the Melbourne C20 Panel that considered the Built Form Review examined the circumstances when height controls may be appropriate. Such circumstances include:43
Establishing preferred character ‐ Numeric building height requirements will be appropriate in order to set benchmarks to define the preferred future character of an area where this will be different to that presently existing
43 Section 4.3 of Melbourne C20 Panel report
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Achieving a particular built form outcome ‐ It is appropriate to use either a performance based or numeric building height requirement in order to achieve a particular built form outcome. Examples of particular built form outcomes that might justify the use of a building height requirement include: · To protect viewlines. For example, the Shrine Vista Control (DDO17). · To protect skyline views. For example, in Royal Park. · To protect the functioning of some piece of infrastructure. For example, the operation of the City Link exhaust stack. · To maintain solar access. For example, protecting public open space from overshadowing during certain hours
Achieving general built form outcomes ‐ Numeric building height requirements may be used to achieve a general built form outcome. A good example would be to establish the stepped contrast between the concentration of tall buildings in the CBD and Southbank, intermediate buildings in fringe locations and the lower built form of surrounding areas.
Maintaining an existing character ‐ Either numeric or performance based building height requirements may be used to maintain the existing character of an area. However, two provisos apply: · Height must be a defining element of the character. · Other VPP tools must be inadequate to achieve the desired outcome
In terms of the current circumstance the PAC considers that, with the existence of the Shrine to the immediate east, it is appropriate that a height control be introduced to achieve a particular built form outcome – namely, to prevent additional visual domination of the Shrine from tall buildings. Accordingly, whilst acknowledging the importance of other urban design issues relative to height, in the PAC’s view the circumstances of this location justifies a numerical height control applying to the subject land.
5.2.7 What is the impact of potential towers on other sites on the subject land on the St Kilda Road streetscape and Shrine and reserve?
Amendment C125 applies to the area between Dorcas Street to the south and Coventry Street to the north, which includes four lots of land – 318, 320, 324 and 332 St Kilda Road.
With Overland’s planning and urban design expert witnesses opposing any height controls on the subject land and Ms Hansen’s view that there should
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be adequate spacings between towers, a question emerged during the Hearing as to whether any other towers could be accommodated on the subject land if the proposed 117 metre tower was constructed on two of the lots, i.e. 324 and 332 St Kilda Road.
Ms Hansen stated that because of the limited opportunity to redevelop the “strata‐titled” building to the immediate north of the Overland site (320 St Kilda Road); it was likely that adequate spacing could occur if 318 St Kilda Road was also constructed with a tower. However, Ms Hansen acknowledged that the impact of any tower on this site would need to be carefully considered given that it would sit slightly forward of the proposed building at 324‐332 St Kilda Road and have a different impact on the Shrine and reserve.
In contrast, Mr Biles for the Trustees expressed concern that without height controls applying to any of the four sites on the subject land it had the potential to create a “wall” effect that would not only detract from the Shrine and reserve, but the St Kilda Road streetscape generally.
In the PAC’s view, even if the middle lot at 320 St Kilda Road was never re‐ developed, the potential to redevelop the site with a tower at 318 St Kilda Road in addition to the tower on the Overland site at 324‐332 St Kilda Road would result in reducing adequate spacings between the towers and potentially have an adverse urban design outcome. This issue is considered further below.
5.2.8 What controls, if any, should apply to the subject land?
The terms of reference require the PAC to develop recommendations on the nature of planning controls that should apply to the subject land. In broad terms, there are three options as to height: 25 metres or 36.05 metres AHD (as existed prior to the new format planning scheme); 60 metres (as proposed in Amendment C125); or no height controls.
In addition, consideration needs to be given whether the height controls should be mandatory or discretionary.
As well as the height controls, other aspects of the planning controls requiring consideration include whether: A 25 metre podium height should apply; and A 3 metre setback off St Kilda Road should apply.
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There are also potential consequential changes to various local policies in the Melbourne planning scheme should a new control apply to the subject land.
Submissions and evidence
Subsequent to exhibiting the Amendment with a 60 metre discretionary height control, MCC resolved on 8 July, 2008 that a 36.05 metre AHD height mandatory control should apply on the subject land.
Mr Biles for the Trustees supported this lower and prescriptive control on the basis that “it will establish a courteous relationship with the Shrine and its grounds.”44
As stated above, Overland’s planning and urban design expert witnesses argued against any height control for the land.
Discussion
Impact of 36 AHD height control
Given the number of buildings that exist, or will exist, to a height of 60 metres to the west of Anthony Lane, the PAC sees no benefit in limiting the height of buildings in the Amendment area to 25 metres or 36 metres AHD. There will effectively be a wall of buildings to 60 metres to the immediate west of the Amendment area and these would establish the skyline in westward views from the Shrine’s forecourt. The fact that buildings west of Anthony Lane will be a little further away than buildings within the Amendment area is, in the PAC’s view, not relevant to their impact on views from the Shrine. The relatively small difference in distance, in the PAC’s opinion, renders the effect of greater closeness to be immaterial. The important fact is that there will be a 60 metres high skyline within reasonably proximity to and immediately west of the Shrine.
Impact of a 60 metres height control
It follows logically from the previous conclusion that a preferred building height of 60 metres would be acceptable. As previously stated, it is considered that the key visual change to the Shrine’s setting will be the skyline established by the existing and future buildings to the west. This outcome is fait accompli.
44 Page 19 of Mr Biles expert witness statement
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Should the 60 metre height control be mandatory or discretionary?
In the PAC’s view, a discretionary height control of 60 metres applying to the subject land is appropriate to provide some degree of flexibility given the relatively steep fall of the land, and to allow for some minor architectural roof top features if this was to enhance the overall design.
While a discretionary height control technically allows a proposed development of a height above the numerical limit to be considered, the PAC endorses the approach of the Panel that considered the Built Form Review (Amendment C20) that: Building height requirements should be regarded as the general rule only to be departed from in exceptional circumstances or where it is clear that the design objectives will be met by the proposed built form outcome.45
Another matter to be considered under a scenario of a 60 metre discretionary height control applying to all four lots between Dorcas Street and Coventry Street is the cumulative impact of a “wall effect” on both the Shrine and the St Kilda Road streetscape.
In the PAC’s view, any future proposal on any of the sites would need to address adequate spacings between buildings in the terms described by Ms Hansen. However, the PAC acknowledges that the context of spacings between 60 metre high buildings and between much taller buildings is different. Indeed it is noted that further south along St Kilda Road there appears to be a relative consistent height of buildings that have some form of separation to ensure the impact of a “wall effect” is minimised.
What would be the effect of no height control in the Amendment area?
The effect of additional buildings, of similar height to the proposal and constructed on the immediate north at 320 St Kilda Road and further north at the intersection of St Kilda Road and Coventry Street (318 St Kilda Road), would have a substantially greater impact on the ambience of the Shrine than would the proposed tower by itself. While the proposed tower would extend and emphasise the northern end of the existing group of two tall towers, a second tall tower on No. 320 St Kilda Road and a third tall tower at 318 St Kilda Road would alter the whole character and balance of this group, with its visual centre moving north of, or straddling the westward view from, the Shrine’s forecourt.
45 Page 32 of Panel Amendment C20 report
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Impact of a 25 metre podium control
Amendment C125 proposes to include a requirement for a 25 metre podium height. This control currently applies in this part of St Kilda Road north of Park Street to Dorcas Street.
Given MCC’s position that the height control applying to the subject land should be reduced to 36 AHD, the need for a podium height would be negated.
Overland’s planning and urban design experts support the concept of a podium height, which had been incorporated into the design of the proposed building.
In the PAC’s view, the effect of a 25 metre podium height will have less relevance to 60 metre high buildings than taller buildings. The PAC notes that many of the 60 metre or so high buildings further south along St Kilda do not have podiums. Nevertheless, the PAC considers that design features responding to the line of the 25 metre podium may still be desirable for a 60 metre high building and suggests an appropriate design objective could be inserted into the Design and Development Overlay.
Impact of a 3 metre setback from the St Kilda Road boundary
Existing buildings in St Kilda Road between Dorcas Street and Coventry Street are setback 3 metres, which reflects the outcome of prior planning controls.
MCC submitted that the proposed building at 324‐332 St Kilda Road should not be setback the 3 metres, and cited difficulties in providing adequate landscaping over hard surface land (i.e. over a basement).
In the PAC’s view, it would be appropriate to provide a consistent setback along this part of St Kilda Road and considers that with suitable species appropriate landscaping can be provided. Overall, landscaping would assist in softening the hard edges of building forms in this location and there are numerous practical ways landscaping can be achieved.
The Design and Development Overlay Schedule
Amendment C125 simply extends existing DDO 43 from the west to the subject land. Accordingly, not all design objectives are relevant to the subject land. Further, as noted by Ms Hansen, the area subject to DDO 43 is known as Dorcas Street. The four sites subject to the Amendment have a St Kilda Road address.
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The PAC considers a separate schedule to the DDO should apply to the subject land, and suggests the following design objectives and built form outcomes: A number of the suggested design objectives are lifted from DDO 19.
312‐332 ST KILDA ROAD
Design objectives To encourage site development that will enhance the appearance, dignity and spaciousness of St Kilda Road. To protect and enhance the appearance of St Kilda Road as a major boulevard. To encourage urban design improvements so that the physical environment offers variety, interest, safety, and convenience to people in the area. To encourage design of the buildings with materials and/or finishes that respond to a 25 metre high podium line. To ensure that any new development or redevelopment is at a scale that protects the visual amenity of the Shrine of Remembrance reserve. To ensure that any development or redevelopment does not have an adverse impact on the cultural significance of the Shrine of Remembrance by reason of height and/or material and finishes to buildings.
Buildings and works An application must be accompanied by a site analysis and urban context report which demonstrates how the proposed building or works achieve each of the Design Objectives and Built Form Outcomes of this schedule, and any local planning policy requirements. Buildings or works should not exceed the Maximum Building Height specified in the table to this schedule. An application to exceed the Maximum Building Height must demonstrate how the development will continue to achieve the Design Objectives and Built Form Outcomes of this schedule and any local planning policy requirements. Building height is the vertical distance between the footpath or natural surface level at the centre of the site frontage and the highest point of the building, with the exception of minor architectural features and building services.
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Referral to Shrine of Remembrance Trustees Any application for buildings and works must be referred to the Shrine of Remembrance Trustees. Comments by the Trustees must be submitted to the responsible authority no less than 28 days after they are sent by the responsible authority.
Table to Schedule No xx
Area Maximum Building Built form outcomes Height and setbacks 312‐332 St Kilda Road 60 metres height New development that establishes suitable height for St Kilda Road adjacent to the Shrine of Remembrance 3 metre setback from Consistent setback of St Kilda Road buildings to provide landscaping opportunities
Other planning provisions
Mr O’Farrell for the Trustees tabled a marked up copy of relevant sections of the Melbourne Planning Scheme which he suggested should also be considered to ensure the cultural significance of the Shrine was protected and which achieved other urban design outcomes. In response, Mr Chiappi for MCC stated that in general terms Mr O’Farrell’s suggestions appeared appropriate but indicated that Council would not want to consider the proposed changes without community consultation.
Given MCC’s response, the PAC has retained the marked up copy of the suggested changes to the planning scheme on the PPV file which the MCC may wish to view at sometime in the future.
5.3 Conclusions and recommendations
The PAC’s main conclusions are: the absence of planning controls applying to the subject land is an anomaly, and was not the deliberate intention of MCC; while this is a significant anomaly in the planning scheme, the main purpose of the PAC’s terms of reference is to consider the nature of future controls that should apply to the land;
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the existing local policy framework justifies applying a height control to the subject land, having regard to broader objectives to protect sites of culturally significant places and other urban design objectives to restrict height of buildings in the surrounding area; despite the existence of taller buildings in the surrounding area, notably the Royal Domain Apartments and St James building, there is still a strategic justification to apply a height control to the subject land; it is considered appropriate that a 60 metre discretionary height control should apply to the subject land, with a further control requiring a 3 metre setback from St Kilda Road; and the podium height of 25 metres is not considered necessary for a 60 metre high building; however design objectives should include a requirement that the materials and finishes respond to the 25 metre high podium line.
The PAC recommends:
Amendment C125 to the Melbourne Planning Scheme be approved subject to the draft DDO in section 5.2.8.
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6. Recommendations
1. Application 2008/0758 for a 117 metre high mixed use development be refused because it would have an unreasonable impact on the cultural significance of the Shrine of Remembrance.
2. Heritage Victoria should consider reviewing the Shrine’s Statement of Significance to address the impact of external development on the cultural significance of the Shrine.
3. Amendment C125 to the Melbourne Planning Scheme be approved subject to the draft DDO in section 5.2.8.
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MELBOURNE PLANNING SCHEME AMENDMENT C125/PLANNING PERMIT APPLICATION 2008/0758 PANEL REPORT: JUNE, 2009
TERMS OF REFERENCE
Planning Panel appointed pursuant to Part 8, Section 153 of the Planning and Environment Act 1987
And
Advisory Committee appointed pursuant to Part 7, Section 151 of the Planning and Environment Act 1987 to report on issues concerning
MINISTERIAL ‘CALL IN’ PURSUANT TO SECTION 97B(1) OF THE PLANNING AND ENVIRONMENT ACT 1987 for PLANNING PERMIT APPLICATION NO. 2008/0758, 324-332 ST KILDA ROAD, SOUTHBANK
And
PROPOSED HEIGHT CONTROLS TO APPLY TO LAND AT 312-332 ST KILDA ROAD, SOUTHBANK ______
BACKGROUND AND PURPOSE
1. The Minister for Planning, the Hon Justin Madden MLC has appointed a joint Advisory Committee and Planning Panel pursuant to the Planning and Environment Act 1987 (P&E Act) to report on Planning Permit Application No. 2008/0758 for land at 324-332 St Kilda Road, Southbank which was “called in” by the decision of the Minister for Planning pursuant to clause 97B(1) of the P&E Act and to advise on the nature of proposed height controls to apply to land at 312-332 St Kilda Road, Southbank.
Planning Permit Application 2008/0758
2. An application for Planning Permit No. 2008/0758 was submitted on 27 June 2008 by Overland Properties Pty Ltd C/- SJB Planning to the Minister for Planning in his capacity as responsible authority pursuant to the Melbourne Planning Scheme. The application proposes a 31 level mixed use tower of approximately 112 metres in height comprising retail, office, an art gallery and dwellings with a basement car park. 3. On 17 July 2008, the responsible authority directed the Applicant to give notice of the application in accordance with the provisions of the Mixed Use Zone and the P&E Act. The application was also referred to the Shrine of Remembrance Trustees and the relevant authorities in accordance with the Schedule 17 to the Design and Development Overlay (DDO17) - Shrine Vista and the DDO27 -City Link Exhaust Stack Environs Overlay. To date fifty six (56) objections have been received in response to the application being publicly advertised. 4. Pre-application enquiries made in respect of the proposal sought to determine the maximum development potential of the site and involved discussions with the Department of Planning and Community Development (DPCD) and the Melbourne City Council (MCC) about a building of up to 180 metres in height. These enquiries brought
to the MCC’s attention that there is no planning overlay control that would limit building height and setbacks applicable to the site at 324-332 St Kilda Road, plus the adjoining land all bounded by St Kilda Road, Dorcas Street, Coventry Street and Anthony Lane. 5. It is noted that Schedule 17 to the Design and Development Overlay (DDO17) - Shrine Vista, has a specific purpose of protecting the vista to the Shrine of Remembrance but does not include a height control in relation to the surrounding built form context.
Melbourne Planning Scheme Amendment C125
6. On 17 March 2008, the MCC was granted Authorisation to prepare and exhibit Amendment C125 which proposes to extend Schedule 43 to the Design and Development Overlay (DDO43) – Dorcas Street, to cover the land bounded by St Kilda Road, Dorcas Street, Coventry Street and Anthony Lane. The amendment would have the effect of placing a discretionary 60 metre height limit and applying setback requirements to the land. 7. The MCC provided the following contextual background to the absence of height controls on the land and the need for Amendment C125: “From the 1970’s to 1999 a mandatory building height control of 36 metres above Australian Height Datum (about 25 metres above the St Kilda Road footpath level) applied in the Planning Scheme as it was then. This control was not included in the subsequent Victoria Planning Provisions new format planning scheme which was introduced in 1999. 8. The Explanatory Report in describing why the amendment is required, cites the failure to include a height control on the land as an “anomaly” and Council has indicated its concern that without a specific height control, a planning application could be made for a building out of scale with the area. 9. At the time Planning Permit application No. 2008/0758 was lodged, exhibition of Amendment C125 had been completed and attracted 83 submissions. Many of the submissions received in response to the amendment requested that the Council reinstate the previous height control of 36.05 metres above the Australian Height Datum (AHD) or mean sea level, that applied under the old format Melbourne Planning Scheme. Instead of referring the submissions to a panel, the Council resolved to: “Request that the Minister for Planning intervene using his Ministerial Powers of Intervention in Planning and Heritage Matters and adopt Amendment C125 reverting to the previous mandatory height control of 36.05 metres above AHD to avoid uncertainty” 10. The wording of the MCC’s resolution was confusing and did not properly relate to the provisions of the P&E Act. However, following the Department writing to the MCC seeking clarification of its resolution, the Council has responded as follows: “we hereby wish to clarify that the City of Melbourne requests the Minister for Planning to exercise his powers under Section 20 of the Planning and Environment Act 1987 to prepare and approve an amendment to the Melbourne Planning Scheme. The planning scheme amendment would seek to apply a mandatory height control of 36.05 metres at AHD to the land at 312-332 St Kilda Road, Southbank and to amend the Municipal Strategic Statement accordingly, so that it reflects the expected built form outcome for the land.”
11. As a result of this request, the MCC has not proceeded with the processing of Amendment C125 and has not requested that a panel be appointed to consider the submissions received in relation to the amendment. 12. In view of the MCC’s recent position regarding the process of Amendment C125 and height controls that should apply to the land at 312-332 St Kilda Road, Southbank, there is a need to investigate the question of what is an appropriate height control to apply in order to determine Planning Permit application No. 2008/0758.
Task
13. The Minister for Planning has decided to exercise his powers to call in Planning Permit application No. 2008/0758 from the responsible authority pursuant to Section 97B(1) of the P&E Act and refer all objections and submissions received in respect of the Planning Permit application No. 2008/0758 to a Panel pursuant to Section 97E of the P&E Act. 14. The Minister for Planning has also appointed an Advisory Committee under Section 151 of the P&E Act to advise him on all relevant matters concerning application for Planning Permit No. 2008/0758; the exhibited Melbourne Planning Scheme Amendment C125 and the submissions made in respect of that amendment; and any other matters that the Advisory Committee believes is appropriate in considering the nature of planning controls to guide height and setbacks that apply to all the land bounded by St Kilda Road, Dorcas Street, Coventry Street and Anthony Lane. 15. The Panel and Advisory Committee will sit as a joint body.
Outcomes
16. The Panel / Advisory Committee must produce a report for the Minister for Planning providing: • A response detailing the nature and content of appropriate planning controls to apply to the land at 312-332 St Kilda Road, Southbank, having regard to all relevant planning considerations, including: - the physical context of the site and its surrounds, including the importance of the nearby Shrine of Remembrance, the surrounding gardens and St Kilda Road; - the height of development in the surrounding precinct and appropriate limitations on height that should be applied to the site taking into account the context; - the past and present context of planning controls that have applied to the site and the surrounding precinct along St Kilda Road including land in both the Melbourne Planning Scheme and the adjoining Port Phillip Planning Scheme. - The background context of Amendment C125 and issues associated with the ostensible omission of a height control on the land limiting development to 36.05 metres above the Australian Height Datum. - The adequacy of the current Local Planning Policy Framework in terms of protecting and enhancing the Shrine of Remembrance and its surrounding gardens and St Kilda Road. These matters will inform: • A response on the overall merits of the application for Planning Permit No. 2008/0758 for land at 324-332 St Kilda Road, Southbank including recommendations as to whether the permit should issue and if so, under what conditions.
Method
17. The Panel / Advisory Committee shall inform itself in anyway it sees fit, but shall consider: - Relevant documentation prepared by or for the Applicant for application for Planning Permit No. 2008/0758 or otherwise provided to the Panel and all written objections and submissions made in regard to application for Planning Permit No. 2008/0758; - All relevant documentation relating to Melbourne Planning Scheme Amendment C125 including written submissions to Amendment C125. 18. The Panel / Advisory Committee shall hold a public hearing and invite the submitters to Planning Permit Application No. 2008/0758, the submitters to Amendment C125, the Applicant and the City of Melbourne to make verbal and written submissions including evidence. 19. The Panel / Advisory Committee shall retain a library of any written submissions or other supporting documentation provided to it, which must be available for public inspection up to the end of the last day of the hearing date.
Timing
20. The hearing proper is to be conducted as soon as practicable being not less than six weeks from the date of appointment of the Panel / Advisory Committee. 21. The Panel / Advisory Committee is required to submit its report in writing within eight weeks of completion of the hearing.
Fee
22. The fee for the Panel / Advisory Committee will be set at the current rate for a Panel appointed under Part 8 of the Planning and Environment Act 1987.
Page 92
Appendix B Locality Plan
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Appendix C Table of submitters
SUBMISSION NAME ORGANISATION 1 Darren Woodward South East Water 2 Peter John Smith C/- Blanalko Pty Ltd Department of Sustainability and Doug Miller 3 Environment 4 Eva & Marcus H. Rose 5 Bruce Lowery 6 Steve Porter 7 Andrew Pultar 8 Matthew McCroy 9 Janette Hartz-Karp 10 Paul Duffell 11 Brooke Lowery & Tim McDowell 12 Lisette Fisher 13 Adrian Briones 14 John Wickham 15 Greg S. Fisher 16 Monica & Anthony Adrian Dowd 17 Yau Yeu 18 Janeece Rincovitch 19 Peter King 20 Robert & Janice Fairweather 21 Vic Hopkins 22 Linda Willersdorf 23 Hilda Hayes 24 Kristine Hayes 25 Maggie Lam 26 Niall Baird 27 Brian Andrews 28 Lynette J Grigg 29 Cath & Warren Smith 30 Leslie C. Gordon 31 Frances Dumaresq 32 David C. L. Gibbs 33 Marcus Tow Renaissance Assets Pty Ltd 34 Helen Leake 35 Janet Maree Hopkins 36 Dr. Brendan Nunn 37 John Martin & Kevin Pendergast 38 Richard & Ann Pearce 39 Graham Schmidt 40 Xiaodu Li
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41 Dr Zita M Unger 42 James Lewis 43 Jamie & Peta Campbell 44 Robert J. Galbally 45 Bruce Henderson 46 Rev Dr Tim & Mrs Mary McCowan 47 B S Bjornesjo 48 Reg Hunt 49 Mr Nigel Hunt 50 Mr John Willey 51 Mr Peter and Mrs Cate Longney 52 Jodie Peters 53 Norm Tilling 54 Terry & Delma Valmorbida 55 G. A. Robinson & G. Johansson 56 Tom & Anita Roper 57 Graham Weston 58 Michael Bialek 59 Esther Goldberg 60 Ian Pitt Best Hooper 61 David Willersdorf 62 Rosemary Maxwell 63 Mario Amenta 64 Vivyan Amenta 65 Fiona Reed 66 Henry Jolson Owen Dixon Chambers West 67 Labrini Platis CB Richard Ellis 68 Renee Boots 69 Catherine Mapperson Quest on Dorcas 70 Holly Stansfield-Smith Rigby Cooke Lawyers 71 Jim Richardson 72 Ian Anderson 73 Steven and Sharon Streitberg 74 Maria-Luisa Higgins 75 Dr J D Roydhouse 76 Shrine of Remembrance Trustees C/- DLA Phillips Fox 77 Bruce A Stirling 78 Cheryl Hunt 79 John A McIntosh 80 Jan & Andrew Selvay 81 Tonya Gabriel-Brennagh Katrina Terjung - Coordinator City of Port Phillip 82 Strategic Planning 83 Bernd & Marie Aberle
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Appendix D Melbourne Planning Scheme Amendment C20 Panel Report – Appendix D (Southbank precinct boundaries)
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Appendix E Draft Permit Conditions
Amended Plans (if required)
1. Prior to the commencement of the development, amended plans to the satisfaction of the responsible authority must be submitted to and be approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must generally be in accordance with the plans prepared by SJB Architects TP00 – TP‐36 dated 16.05.08 submitted with the application but modified to show: (a) The positioning of boom gates, card readers and any other control equipment needs to be specified and should be designed to the satisfaction of Council’s Manager – Engineering Services; (b) The carpark control point should normally be placed at an adequate distance inside the property line, particularly if a key control arrangement is used, to eliminate or reduce the occurrence of vehicles queuing over the Anthony Lane carriageway. The queuing space at the entrance lane should normally be deigned in accordance with table 3.3 in section 3.4 of Australian Standard AS2890.1 – 2004; (c) The ramp grade at the car park entrance should be specified to ensure that any entry/exit ramp should not be steeper than 1 in 20 for the first 6 metres into the car park from the building line. Grades near the control points should not exceed 1:20 for at least 6 metres prior to the control point. All aspects associated with the car park ramps should be designed to feature the gradients, transitions, lane widths and all other design features as recommended in Sections 2.5 and 3.3 of AS2890.1 – 2004; (d) A bollard or other suitable separation devices should be placed at those pedestrian entrances and stairwells doors which open onto or are close to the carpark’s circulating aisles, in order to provide protection to pedestrians entering into the car park. Considerations should also be given to the provision of signage near those same pedestrian entrances and stairwell doors, warning pedestrians of moving traffic directly outside the doors; (e) Signage and an audio/flashing warning device should be installed at the exit point into Anthony Lane to alert pedestrians of exiting vehicular traffic and vice‐versa;
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(f) Headroom clearances within the carpark shall be in accordance with section 5.3 of AS2890.1 – 2004; (g) All opening doors projecting into Anthony Lane to be redesigned so that they do not project beyond the street alignment when open or closed.
Layout not altered and satisfactory completion
2. The development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.
3. Once the development has started it must be continued and completed to the satisfaction of the responsible authority.
Wind assessment
4. Prior to the commencement of the development, a comprehensive wind tunnel testing and environmental wind effects assessment report of the development by a suitably qualified engineering consultant must be undertaken by the owner of the land and be submitted to and be to the satisfaction of the responsible authority. The wind tunnel tests must include all structural or siting changes to the building required as a result of condition 1 of this permit. Any modifications required to the development in order to ensure acceptable wind conditions to the surrounding streets and public areas must be carefully developed as an integrated design solution with the architectural and landscape design to the satisfaction of the responsible authority.
Materials and finishes
5. Prior to the commencement of the development, a schedule of external colours materials and finishes including a sample board with a colour notated elevation(s) that illustrates the location and details of all external materials and finishes and must be submitted to and be to the satisfaction of the responsible authority. The colours, materials and finishes indicated must be generally in accordance with the schedule submitted with the application. When approved, the schedule will form part of the endorsed plans. All colours materials and finishes of the building must conform with the approved schedule to the satisfaction of the responsible authority.
Building appurtenances.
6. The minimum clearance to the underside of any projection beyond the street alignment shall be 2.7 metres from the existing footpath surface.
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7. All building plant and equipment are to be concealed to the satisfaction of the responsible authority.
8. The development must provide the capacity for television signal distribution to each dwelling and any satellite dishes, antennae or similar structures must be designed and located at a single point to the satisfaction of the responsible authority.
Hours of operation
9. Except with the written consent of the responsible authority, the Food and drink premises use may operate only between the hours of x ‐ x on x day. The Place of Assembly (Art Gallery) use may operate between the hours of x and x on x day, all to the satisfaction of the responsible authority.
All deliveries to the site must occur within the hours of operation.
Noise Control
10. Noise levels emanating from the premises must not exceed those required to be met under State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade), No N‐1 and (Control of Music Noise from Public Premises), No N‐2 to the satisfaction of the responsible authority.
Loudspeakers
11. No external sound amplification equipment or loud speakers are to be used for the purpose of announcement, broadcast, playing of music or similar purpose to the satisfaction of the responsible authority.
Car parking, traffic and access
12. Prior to commencement of the development, a report from a qualified traffic engineer must be submitted to certify that the internal design of the car park is generally in accordance with the Australian and New Zealand Standard 2890.1‐2004 ( or as updated), including ramp gradients, headroom clearances, access aisles and car space dimensions, to the satisfaction of the responsible authority.
13. The areas for the parking of vehicles must be clearly indicated on the floor and the boundaries of all car parking spaces and access lanes and the direction in which vehicles should proceed along the access lanes
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must be in conformity with the endorsed plans. The car parking spaces must not be used for any other purpose and all access aisles must be kept clear, to the satisfaction of the responsible authority.
14. The areas set aside for parking on the endorsed plans are to be used in connection with the lawful uses carried out on the site and must not be operated as a public car‐parking facility.
15. Bicycle parking must be provided and located in accordance with the approved plans to the satisfaction of the responsible authority.
Street levels and crossovers
16. The owner of the subject land shall not be permitted to alter existing street levels for the purpose of constructing a new vehicle crossing or pedestrian entrances without first obtaining the written approval by the City of Melbourne’s Group Manager ‐ Engineering Services to the satisfaction of the responsible authority.
17. The owner of the subject land must construct all necessary vehicle crossings and demolish and make good all unnecessary vehicle crossings adjacent the subject land in accordance with plans and specifications first approved by the City of Melbourne’s Group Manager ‐ Engineering Services to the satisfaction of the responsible authority.
Drainage
18. The owner of the subject land shall construct a drainage system, incorporating water sensitive urban design, within the development and make provision to connect this system to Council’s underground stormwater drainage system in accordance with plans and specifications first approved by Council’s Group Manager ‐ Engineering Services.
Construction Management Plan
19. Prior to the commencement of the development, including demolition, a detailed construction and demolition management plan must be submitted to and be approved by the responsible authority. This construction management plan is to be prepared in accordance with the City of Melbourne ‐ Construction Management Plan Guidelines and is to consider the following: public safety, amenity and site security; operating hours, noise and vibration controls; air and dust management; stormwater and sediment control; waste and materials reuse; and
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traffic management.
Waste Management
20. The waste storage and collection arrangements must be designed and located to the satisfaction of the City of Melbourne.
Reflectivity report
21. A reflectivity report must be submitted to and approved by the responsible authority. The reflectivity report must specifically address potential reflectivity impacts of the building on Anzac Day activities at the Shrine. The responsible authority must consult with the Shrine of Remembrance Trustees before approving the report.
Expiry of the permit
22. In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies: The development and use are not started within two (2) years of the date of this permit. The development is not completed within four (4) years of the date of this permit.
In accordance with section 69 of the Planning and Environment Act 1987, the responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.
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