By Mark Marsden, Victorian Planning Reports
Birrarung Marr is one of the city’s relatively new green spaces along the banks of the Yarra River that fulfils a number of different roles, including events, active and passive recreation.
The closest high-rise buildings to Birrarung Marr are on the north side of Flinders St. These buildings are some distance away from the park (with the railway lines separating Flinders St from the park), however the taller buildings in Flinders St still cast some shadow over the park.
In DEXUS Property Group Ltd v Minister for Planning  VCAT 619, the developers sought approval to construct a 191 metre (54-level) tower at 32-44 Flinders St. The Minister approved the application but imposed a condition to reduce the height to 175 metres. The council supported the minister’s condition.
The Melbourne planning scheme had been recently amended so impacts of increased shadowing of the public realm were assessed during the winter period rather than the equinox. It was acknowledged by the tribunal that this change to the planning scheme “illustrate an evolving policy context that is now being implemented into the planning scheme, and demonstrates clear intention to provide for better protection of public open spaces against overshadowing by new development.”
The developers put legal arguments to the tribunal that the more stringent overshadowing controls did not apply because of the transitional provisions inserted into the Melbourne planning scheme when it was amended.
The tribunal found in favour of the developers on this point but also observed that had the new planning controls (now applying to the subject site) been applied when the application was made, they would not have been able to construct a 171 metre high building.
In ruling that the condition requiring a reduction of height to be retained on the permit, the tribunal said:
We consider the effect that another shadow will have, adjacent to the current one and extending further than the one already present, will cause unwarranted loss of sunlight to Birrarung Marr particularly at the 191.5 metre height proposed during the winter months. The 175 metre tower will regrettably also cast a shadow, but we believe that it is a more acceptable outcome than the higher form proposed.
We concede that city parks are vulnerable to overshadowing, particularly in dense and high cities such as Melbourne. But we do not agree this means that protection of sunlight to open space should not be given priority where possible.
The cumulative effects of a wall of towers at Flinders St is also an issue we believe must be taken into account in making our findings. We do not agree that just because one tower already overshadows the park that another will not make much difference. We go back to the diverging views put forward by the applicant and the minister and council about the function of the park.
We disagree with DEXUS that Birrarung Marr has the primary function of being a thoroughfare, ostensibly a walkway to the football on cloudy cold winter afternoons where the public is moving through quickly and rugged up against the elements. We believe this argument detracts from the many other uses put forward by others, including experts, as well as what we observed on site. To suggest that the role of the park is limited in this way and it is not an important city park patronised for other passive and active recreation uses is simplistic and unconvincing.
The park will experience more overshadowing from development of the review site in any event and we consider the decision to limit this extent by way of condition 1(b) is the right one for the public and for the future of Birrarung Marr as it continues to evolve.