Overshadowing restriction for park

By Mark Marsden

VCAT has again supported both the City of Melbourne and Minister for Planning in ensuring that new skyscrapers in the southern part of the CBD do not overshadow Birrarung Marr.

The case, 63 Exhibition Street Pty Ltd v Minister for Planning [2018] VCAT 861, went to mediation at the tribunal in December 2017. All issues other than height were resolved at the mediation.

Council wanted to reduce the building height by 21 metres, and the minister wanted to reduce the height by 36 metres. The minister insisted on the bigger reduction so that the building cast no more shadow than the building at 32-44 Flinders St (which is the site subject to the previous tribunal hearing).

Because the minister is the responsible authority for the application, the larger reduction was included as a condition of permit. The developer challenged the condition.

Both sides called expert witnesses. The developer’s town planning and urban design witnesses argued against the reduced height. They told the tribunal that Birrarung Marr had no state, regional or metropolitan significance (unlike the Botanic Gardens); that it was only in winter when the upper terrace levels of Birrarung Marr would be over-shadowed by the building, when there would be less use of the park; and that the policy which applied when the application for the planning permit was made restricted shadowing at the equinox, not the solstice.

The minister’s urban design witness told the tribunal that the peak usage of the park in cooler months was vastly different when the sun was out, regardless of whether the grass was wet or dry, supporting the urban design principle that people seek sun in winter.

It was also said that use was not necessarily limited to sitting on the grass; there were long banks of seating areas for park users on the upper terrace. It was therefore preferable that no shadow extend over the sloping terrace between 11.00am and 2.00pm on any day of the year.

The tribunal upheld the minister’s condition. It said “To limit further solar access to a valued public park such as Birrarung Marr in perpetuity is in our view unwarranted. As the City of Melbourne continues to grow at previously unforeseen population forecasts, the rise in apartment dwellers in the nearby environs of Birrarung Marr, including from proposals such as the review site, will increase demand and patronage that will be enhanced by access to sunlight in the winter months”.

The tribunal noted that the Ernst and Young building and other buildings approved before the last planning controls for Melbourne’s CBD were introduced already cast shadows over Birrarung Marr. But the tribunal considered that without the reduction of height, the proposed building would “contribute to the existing cumulative effect of shadowing that is not acceptable.”

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