VCAT has approved an 8 storey ‘mixed use’ development of  shops, offices, 54 dwellings and waiver of resident, visitor, and loading bay requirements. The site is at 28 Riddell Parade, Elsternwick. Below are extracts from the decision. Whilst VCAT will undoubtedly be ‘blamed’ by Lipshutz & Co for this decision, the member once again highlights how the Glen Eira Planning Scheme holds little terror for developers. The full decision is available at – 

http://www.austlii.edu.au/au/cases/vic/VCAT/2013/2006.html 

  • We find the policy guidance on height turns on the weight to be given to State policy, which clearly supports larger scale buildings in Major Activity Centre that do not conflict with surrounding land uses. Mr Sheppard expressed this policy direction succinctly by saying State policy anticipates new development will lead to Major Activity Centres having a different character than that which currently exists.
  • The absence of a Design and Development Overlay specifying a preferred maximum height for new development on the review site influences our interpretation of the site’s policy setting. It implies that a development’s height is only limited by the specific combination of the policy and physical context of this, or any other, site in this Major Activity Centre that is not encumbered by such an Overlay.
  • We found it relevant that numerous other 7 to 10 storey buildings have been approved in this Major Activity Centre, with many of these buildings having direct abuttals to low scale residential development. These buildings all display a different character to what currently exists and indicate that buildings of a comparable height to what is proposed have been considered acceptable in this centre.
  • To this end, we distinguish Mr Scott’s evidence as relying too strongly on the notion of respecting and maintaining the centre’s existing character. We find his reliance on the ‘success’ of recent four storey infill development is too heavily weighted towards the assumption that policy discourages any visual competition to this centre’s heritage character. We found Ms Heggen’s opinion that the proposed development is one of the ‘next generation’ of activity centre buildings better reflects the policy framework and the recent history of this centre.
  • We do not accept the concept that only the western end of Glen Huntly Road can accommodate taller buildings, as it is not reflected in State or local policy nor is reflected on the ground. The local policy does not distinguish between the eastern and western sides of the railway line nor does it call for ‘gateway’ buildings along Glen Huntly Road.
  • Rather, it separates the centre into precincts where particular development outcomes are anticipated. We note that the zone boundaries make an intentional deviation to include this site. It anticipates larger scale buildings at heights compatible with adjacent buildings in the precinct containing the review site and identifies Stanley Street as a ‘point of transition from larger scale to the north’ to ‘lower scale to the south’. We find this explicitly encourages larger scale development on the review site, despite it lacking a frontage to Glen Huntly Road and despite it being on the east side of the railway line.
  • Much turned on the meaning of these phrases in the local policy. We find the first phrase – heights compatible with adjacent buildings – is to be interpreted as including heights envisaged by the policy framework rather than just the height of the existing adjoining buildings. In this interpretation, it is reasonable to assume a larger scale building could occupy the commercial site to the north or could be constructed on the council managed car park to the east.
  • We find local policy is not clear on whether a gradual or an abrupt transition is required. To this extent, Mr Barber’s interpretation is credible yet we consider it is not correct. The policy guidance for Precinct 4 does not imply taller buildings are discouraged in Precinct 6, rather Precincts 5 and 6 require a ‘transition’ between the Stanley Street precincts. We see the term as standing on its own and being capable of interpreted as either an abrupt or a gradual transition.
  • Separately, Messrs Barber and Scott rely on the Design Vision for Elsternwick Planisphere 2004 to varying degrees. We find this is not helpful to our decision, as this document has no status in the Planning Scheme.

In summary, we find the policies of the Planning Scheme support the height of the proposed building.

Overshadowing of Elsternwick Plaza

  1. We do not accept that the public amenity impact of overshadowing of Elsternwick Plaza caused by this building is reason to reduce its height. The building will cast shadow on the southern corner of the Plaza, yet this shadow will recede before 10am at the equinox. We find this is a marginal and acceptable impact.
  2. We acknowledge that local policy discourages such overshadowing yet find this must be balanced against other policy considerations that promote larger scale development on the review site. We also acknowledge Mr Brazilec’s observation that greater shadow will fall on the Plaza at times other than the equinox, yet remain of the view that the shadow is acceptable, as it will fall on a relatively small section of the Plaza even in mid-winter.
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