Emails tendered to VCAT in the Continental Hotel case have given a rare glimpse of behind-the-scenes negotiations that can occur before the shire, or the tribunal, reaches a decision in important planning cases.
In the Continental case VCAT, the Victorian Civil and Administrative Tribunal, ruled against the shire on two counts, one of which was a height limit imposed on the project to prevent it interfering with the view of the splendid Sorrento heritage limestone building.
The emails were between the applicant’s agent and a shire planning officer. They related to a councillor-imposed condition (Condition 1-F) on the proposed new accommodation wing at the hotel.
Condition 1-F as voted on by councillors required “The apartment building to not exceed RL 37.05 metres in height, with the exception of the lift overrun only”.
(The tribunal changed this to read: “A reduction in the roof terrace to 241 square metres which is to be in a central location and include deletion of the lift overruns and replacement with a lightweight structure over the stairwell only.”
The first email was from Mr Lloyd Elliott, a director of planning firm Urbis (slogan, “The best cities from the brightest minds”), acting for Continental Developments Pty Ltd, to Ms Clydie Brewer, shire statutory planning team leader.
On 9 August last year – after the councillors’ decision on 25 July – Mr Elliott wrote:
Subject: The Continental
Hope all is well. I spoke with David Bergin a week or so ago about this issue and that we are seeking written confirmation from Council regarding Condition 1F. See attached letter – we would appreciate Council Officer’s confirmation on this one.
Any questions please give me a call.
Ms Brewer emailed back the next day:
Subject: The Continental
I can confirm that at the meeting you attended on the 18th July at the Mornington Council Offices with David Bergin and myself that the issue of planning permit condition 1F was discussed. After further discussion and reasoning provided pertaining to the implications of imposing this condition on the development, it was unanimously decided that proposed Condition 1F be excluded from the recommended planning permit conditions, As David Bergin explained at the meeting and also at the council meeting on the 25th July, the last minute nature of the permit condition discussion resulted in the condition being included in the officers report and recommendation even though as a result of our meeting it was the Planning Officers opinion that it be deleted from the report.
On the night of the Council meeting the Councillors determined that the condition should be included on any Notice of Decision issued and on that basis determined to approve the proposal.
It has also been brought to my attention that the advertising fee for this proposal was never paid, which results in an outstanding amount of $671 being owed to Council. If you believe this fee has been paid would you be able to forward me a copy of the receipt so our planning support team can trace it.
(David Bergin is shire executive manager of planning services.)
The emails make clear that the applicant was keen to have the height condition removed and that planners Bergin and Brewer agreed that, despite the councillors’ position, the condition should be “excluded”.
But, as Ms Brewer explained in her email response to Mr Elliott, “Councillors determined that the condition should be included” and on that basis the application gained councillor approval.
‘Improvement to design’
Councillors dealt with the matter again at the 12 December council meeting, where Ms Brewer again promoted deletion of the councillor-imposed height limit, arguing that the results of a VCAT Compulsory Conference “are an improvement to the design … and can be supported subject to the attached conditions”.
Councillors rejected the recommendation, voting again to retain the RL 37.05 metres height.
Continental Developments then took the case to VCAT, which agreed that the new apartment building would not detract from the hotel’s place in the street view.
The Continental is regarded as one of the Mornington Peninsula’s outstanding heritage buildings.
The councillor-agreed height limit of RL 37.05 metres for the new apartments was replaced at VCAT by the applicant’s original height limit. This was not specified in the VCAT ruling but is believed to be just under RL 41 metres. Bandicoot is seeking the precise height.
(“RL” is Reduced Level, a surveying term related to measurements above or below an adopted point. This definition will not satisfy pedants but should suffice here.)
VCAT agreed with the applicant that several conditions sought to be deleted, including 1-F, “are not necessary to achieve an acceptable planning outcome”.
It stated that, “Comparatively, the top of the Hotel’s tower is at RL 46.45 metres, its higher roof ridge is at RL 37.67 metres and its lower roof ridge is at RL 37.05 metres.
It disputes a shire statement that the proposed apartment building “is visible from various vantage points, both close and distant around Sorrento”, saying this was not the case.
Most relevant to the hotel development site, VCAT states, “are the recent apartment buildings at 21 Constitution Hill Road and 1 Hayes Avenue…”
Support for argument
The reference to 21 Constitution Hill Rd is interesting. These apartments are the result of another VCAT decision that was hotly contested – so controversial that a senior planning official later quietly observed that the apartments should never have been approved.
The apartments’ significance in this case is that VCAT used their height – coincidentally, RL 37.05 metres – to support its argument that the Continental proposal should be approved.
As is always the case with VCAT decisions, the tribunal members examine many factors in depth. Bandicoot has no option but to glaze over the eyes of his readers with some of this necessary planning minutiae. He can but apologise.
The hotel is on the Victorian Heritage Register. State policy, it added, “encourages new development that respects identified heritage places like the Hotel and the Ocean Beach Road precincts”.
So does local heritage policy, encouraging new development “that is visually recessive and compatible with the identified heritage place” and also “compatible with the height, scale and siting of existing development”.
This policy also “identifies the Hotel and Stringers Stores as having landmark qualities”, the tribunal continued, adding: “Its objectives on landscape, vistas and views include: ‘To retain the historical integrity of the Continental Hotel and Stringers Stores as landmark features at the entry to the main commercial area’.”
Another policy – the shire’s Ocean Beach Road Commercial Precinct Sorrento Heritage Policy – is then examined. It “encourages new development on Constitution Hill Rd to be subservient to the Hotel, and seeks to ensure that new buildings do not detract from this landmark…”
Had Bandicoot not known the outcome at this point of the tribunal decision he would have thought things were going well for a refusal of the application. He read on, knowing that the “on the other hand” argument was inevitable.
The shire’s expert witness, urban designer Craig Czany, told the tribunal the new apartment’s height should be reduced by sinking it into the ground or by cutting floor-to-ceiling heights, to reduce its prominence in oblique views. VCAT was “not persuaded” by Mr Czany’s evidence – applied to the new apartments, it lacked “the practical aspects of buildability”.
The tribunal was continuing to favour the height set by the Constitution Hill Rd apartments, at RL 37.05 metres, “but we find [that the shire] could easily have chosen one of the other dominant levels”, it said.
The die is pretty well cast (for a tick to the developer’s plan) when VCAT continues: “We find that what gives weight to the apartment building’s height and its role in the visual hierarchy is the fact that it is behind the Hotel and set back 36.6 metres from Ocean Beach Road and 40.5 metres from Constitution Hill Road.”
It then argues: “In terms of longer views, we accept that state and local policy value the ‘sense of place’ that the Hotel brings to Sorrento yet we are not persuaded that it demands subservience to the Hotel’s silhouette of roof ridgelines and tower.
“From our site inspection, we observed that while the Hotel’s tower was always prominent, its roofline ridges were often obscured by vegetation or formed part of an array of roof forms in the town.” [Damn those trees!]
The inspection took Presiding Member Michael Nelthorpe and Member Peter Gray, an architect, to the Sorrento-Queenscliff ferry terminal and to the “Nepean State Park” [sic; Bandicoot is told their viewing was from the Sorrento back beach end of Ocean Beach Rd], where they found “the tower was distinctive yet that [unsurprisingly] the silhouette of the roofline ridges was difficult to discern because of the distance.
“Importantly, we consider that the minor reduction in height sought by the council would be indiscernible at this distance,” they ruled.
The Nepean Conservation Group’s submission was peremptorily treated in the decision. Its argument that the hotel’s siting and design “sets the character expectations of Sorrento more than any other building is overstated.
“[W]e find the character expectations of Sorrento are set by the town’s history, its layout and its many significant heritage buildings … we are satisfied that marginally lowering the apartment building’s height will not detract from this significance,” the Members said.
Other matters, including planter boxes containing “low succulents” should be retained because they “provide a valuable symmetry and coherence to the apartment building’s appearance”.
Importantly, this finding comes in discussion of our old controversial favourite, 21 Constitution Hill Rd, where VCAT observed that “We consider that a building both close to and even moderately higher [than] the roofline of the hotel would be unacceptable. Such a building would provide an alternative and stronger focus to the view.”
Of course Messrs Nelthorpe and Gray respectfully differed from that earlier VCAT judgement, stating that the new apartment building “will not provide the ‘alternative and stronger focus’ that the earlier case mentioned.
Bandicoot now moves to the other point of the applicant’s appeal – the shire’s requirement that it contribute 50% towards improving local pedestrian and traffic flows in light of an anticipated rise in hotel patronage after redevelopment.
VCAT was able to pounce on a report to councillors at the 25 July council meeting to belt this issue high into the Southern Stand.
Unfortunately for the shire and fortuitously for the applicant, a shire traffic officer commented in the Council Report of 25 July 2016 that surveys indicated the loads on the intersection “show that some crossing works are a ‘high priority’ now”. “Extremely high volumes of pedestrian activity occur at this intersection at peak periods,” the officer wrote.
Said VCAT: “We are not persuaded that this development will be the catalyst for the need for upgrading works and thus, the applicant contributing to the council’s infrastructure works.
“… the council makes only the most general comments to support its submission. Once more, the lack of evidence leads us to doubt its claim, particularly given the high number of pedestrian movements throughout this strip shopping centre.”
VCAT further hammers the shire case, with more such comments.
“The council provides no evidence to support its submission [on increased hotel patronage],” it says. “It simply presumes an increase in patron numbers. It provides no estimate of what those numbers might be, when these patrons might attend the Hotel or what their path of travel might be. This leads us to doubt its claim that the Hotel necessitates these works.
Rubbing rather a lot more salt into the wounded shire case, it states: “We consider it equally likely that while the Hotel is likely to enjoy increased patronage, this does not mean that Sorrento will necessarily have significantly more visitors but merely the visitors that come may choose to visit the hotel rather than other venues.
“This would constitute a redistribution, rather than an increase.”
The condition was deleted. Victory went to the applicant. When, or if, the new apartment building rises behind the grand old limestone Conti, we shall see whether VCAT got it right.