HWL Ebsworth Lawyers successful in landmark Melbourne CBD hotel development case

Wednesday, 10 May 2017

The Victorian Civil and Administrative Tribunal recently granted a planning permit for the development of a 32 storey, 100 metre high hotel at 274-278 Little Lonsdale Street, Melbourne.

Melbourne Skyline

The HWL Esbworth Lawyers successfully advised the applicant, instructing Adrian Finanzio SC and Rupert Watters.

The Tribunal considered the definition of 'building services' in the context of exemptions to built form controls.

Controls

Concerned with the preservation of sunlight penetration to CBD streets and pedestrian spaces, Melbourne City Council introduced interim controls to the Melbourne Planning Scheme in September 2015. Amongst other controls, Design and Development Overlay (Schedule 10) (DDO10) required 5 metre side and rear setbacks above the podium of proposed buildings.

DDO10 had the potential to constrain development on many narrow CBD sites, potentially making many unfeasible for development.

Under DDO10, a permit could not be granted for buildings and works that exceeded the required setbacks. An exemption allowed 'building services' to be located within these setbacks (Building Services Exemption). The applicant sought to construct a hotel with elements including the lift core, stairs and garbage chutes abutting the blank wall of an adjacent building, providing no separation.

In the first instance Council refused to issue a permit based on a failure to comply with the setback requirements, a lack of sun penetration to Little Lonsdale Street and the appearance of a continuous wall of towers. On review, the Tribunal resolved to issue a permit.

Building Services Exemption

The Tribunal found that stairs, lift shafts and chutes fall within the meaning of 'building services' and will generally have the benefit of the Building Services Exemption.

The Tribunal's interpretation of 'building services', as an exemption, will be influential in respect of many other controls throughout Victorian planning schemes, such as those applying to building height. The decision is also a useful illustration of the proper approach to the interpretation of the planning scheme.

Wall of Towers

The Tribunal considered that the proposed hotel would not contribute to any significant visual bulk beyond that which already exists, having regard to the cluster of towers in that area of the CBD.

The Tribunal also considered that the proposed hotel would improve the public realm by covering the adjacent blank wall, and would not otherwise contribute to the impression of a continuous wall of towers.

Shadow Impacts

The Tribunal considered that the proposed hotel would not significantly contribute to overshadowing in Little Lonsdale Street, given the already extensive shadowing in the narrow streetscape. The Tribunal accepted that Little Lonsdale Street is at the low end of the hierarchy of significant pedestrian spaces, unlike the wide boulevards that line the Melbourne CBD.

Implications for Development in the Melbourne CBD

Permanent controls (Amendment C270) are now in force and have replaced DDO10 under Amendment C262. The Amendment C270 controls require mandatory separation of buildings taller than 80 metres and do not include the Building Services Exemption, however the Tribunal's approach will be important in allowing horizontal application of building service exemptions rather than just roof top structures which was the approach advocated by the Council.

Having regard to the substantial focus on sunlight penetration and daylight in the public realm sought by Amendment C270, the Tribunal's comments regarding the hierarchy of Melbourne CBD streets is relevant to future development.

The Tribunal's findings with regard to clustering of towers and the covering of blank walls is also of relevance to future development in the Melbourne CBD.

How can we help?

HWL Ebsworth Lawyers has advised extensively on CBD and other urban design challenges.

If you would like to discuss the outcome of this case or any other development matter please do not hesitate to contact us.

This article was written by Mark Bartley, Partner, James Lofting, Special Counsel and Alex Gelber, Solicitor.

For further information please contact:

Partner | Melbourne
P +61 3 8644 3712
Partner | Melbourne
P +61 3 8644 3539
Special Counsel | Melbourne
P +61 3 8644 3414

For information on our Planning and Environment Group please click here.

Important disclaimer: The material contained in this publication is of a general nature only and is based on the law as at 10 May 2017. It is not, nor is intended to be, legal advice. If you wish to take any action based on the content of this publication we recommend that you seek professional advice.