“Beware Developers Bearing Gifts” – Part 1

Kew Cottages Coalition Submission to Heritage Council re: Heritage Permit Application P22396

1. Summary.

The Walker Stage 8 proposal appears to be a ‘Trojan Horse’, like the infamous wooden horse that the Greeks left outside Troy, at the end of their ten year siege.

The latter Horse appeared to be a ‘gift’ for the Trojans left by a departing Greek army. But in reality it was a clever trick, that proved to be more successful than ten years of battles in finally opening the gates of Troy to the invaders.

So it is with this proposal. In our submission Walker’s Stage 8 proposal is a developer’s ruse designed to try and usurp by stealth this heritage listed landscape at the apogee of the former Willsmere Hospital’s Main Drive.

We, therefore, respectfully request that the Heritage Council dismiss Walker’s Appeal, and reaffirm the Executive Director’s Refusal to Grant a Heritage Permit.

2. The Subject Site: Yarra Bend Grove, Main Drive, Kew Cottages.

Walker’s Appeal appears to be designed to encourage the Heritage Council to view this particular proposal as a Cultural Heritage ‘gift’ to the subject site.

However, in our submission, the truth of the matter, is as stated in the Executive Director’s Notice of Refusal, namely that the Yarra Bend Grove site on Main Drive has, for over ten years been “set aside in the Kew Cottages Site Context Plan endorsed as part of permit P9639 as public open space with all trees retained.” (emphasis added).

3. The Proposal. 26 apartments over 5 levels on public open space. (P22396 )

Walker’s Appeal appears to be trying to camouflage the danger posed by building on the subject site.

The Appeal starts by denying the development will be detrimental to the cultural heritage values of either Kew Cottages or Willsmere, and then goes on to try and downplay the significance of both the Kew Cottages Site Context Plan, and Heritage Permit 9639.

However, the photographs Walker has presented appear to conceal more than they reveal about the significant potential impact the proposed apartments will have, on both Kew Cottages Main Drive, and the historic Willsmere skyline. (See Appendix A)

Walker’s response to submissions appears to be similarly unhelpful. (Link: HC14. Attachment to Heritage Council Notice of Appeal 22 July 2015)

It appears that either Walker simply do not understand Condition 8 of Heritage Permit P9639, and the associated 26 metre building setback restriction that burdens the whole length of both the south and west boundaries of Kew Cottages (KRS) , including Yarra Bend Grove, or Walker are actively trying to avoid scrutiny of this highly significant restriction.

4. The Restrictions

Walker’s boldly claim that:

“The subject site is not burdened by any restrictions in terms of setbacks to boundaries.”

(See: Applicant summary of submissions and comments, Re: Kew Cottages Coalition, Submission 6. Link: HC14 p.4 attached)

However, in our submission Walker’s claim is simply nonsense.

Firstly, ‘the subject site’, Yarra Bend Grove is shown on all endorsed plans as Public Open Space.

Secondly, Condition 8 of Heritage Permit P9639 states:

No part of the proposed apartment building in the south western part of the site located adjacent to the former Willsmere Hospital site is to be built within the 26 meter buffer zone set out in the Urban Design Framework October 2003….

Thirdly, the Boroondara Planning Scheme, and its incorporated documents require the same 26 meter Setback Buffer Zone for all buildings more than 3.5 metres above ground level both on the south and west boundaries of Kew Cottages (KRS). Ref: Link: Clause 43_04_s03_boro attached.

Finally, the Walker Development Plan Kew (WDP-K 2010) states that:

The Building Envelopes and Setbacks’ plan in the KRSUDF (2003 p.9) .. specifies a minimum 26 metres building setback from the south boundary (common with the rear properties fronting Wills Street) of the land..” (Link: WDP-K (2010) p.15) emphasis added.

However, the subject site, Yarra Bend Grove, is less than 13 metres from the south boundary of KRS, and therefore, it is in our submission, burdened by all of the above restrictions in terms of setbacks to the south boundary.

We submit that Walker’s failure to comply with the 26 Metre setback rule is a critical failure, because it goes to heart of the matter in terms of the strength of the Heritage controls protecting Main Drive and Willsmere.

Indeed, we say that even if Walker is successful at some point in having Planning controls either removed or downgraded, and if Walker is successful in arguing that Heritage Permit P9639 is now redundant, then in our view it will be vitally necessary for the relevant Heritage Controls for the site not just to be reaffirmed, but to be suitably strengthened and upgraded in order to properly protect the significant cultural values of both Kew Cottages and Willsmere.

5. The Applicant’s Reasons for Appeal.

Reason 1. The Applicant claims that:

The development will not be detrimental to the cultural heritage values of the Heritage Place or the adjacent Heritage Place (the Former Willsmere Hospital (H0861)).

We say that the Applicant is wrong, even in the event that they submit a modified plan with appropriate tree protection controls, because:

  • We support the Executive Director’s grounds for refusal.
  • As detailed in our original submission we believe the proposal fails to comply with Conditions 8 & 9 of Permit 9639 in terms of location.
  • We submit the proposal fails to comply with the 26 meter buffer zone set out in the Urban Design Framework October 2003; and
  • As a consequence the development will have an unacceptable detrimental visual impact on the landmark settings of both Kew Cottages Main Drive, and the former Willsmere Hospital building.

Reason 2. The Applicant says that:

Heritage Victoria Permit Number P9639, which endorsed the Site Context Plan, has expired.

The Applicant appears to be trying to draw the Heritage Council’s attention away from not only the Site Context Plan itself, but also the detailed Heritage Permit Conditions in P9639, because the latter conditions includes the 26 meter buffer zone set out in the KRSUDF (Oct 2003)

However, while Permit P9639 may well have expired, what is important to note is that the grounds for the relevant Heritage Permit Conditions in this Appeal have not changed. That is to say:

  • Willsmere itself has not changed, and the prominent Willsmere skyline still needs to be properly protected. Similarly,
  • Main Drive retains it historical form. The only new building over 3.5 metres built within 24 metres of the southern boundary has been Walker’s Sales Office. The Sales Office was only granted a temporary permit, and has now been removed. A Permit has also been granted for the removal of Walker’s existing office building on the subject site. The 24 metre setback rule remains in force, and the Drive’s significant avenues of trees, views, and open space still need to be properly protected.

As a consequence we recommend that any new Heritage Permit Conditions required to address the subject site be no less robust than those contained in P9639.

Similarly, should Walker Corporation be successful in their attempts to have existing planning controls downgraded, then we recommend that Heritage Permit conditions be comprehensively strengthened accordingly.

Reason 3. The Applicant claims that:

The Site Context Plan endorsed under Heritage Victoria Permit Number P9639 does not reflect the “as built” context of the Heritage Place, which has resulted from subsequent approved development of the Heritage Place.

We would agree if the Applicant simply means that the “as built” stages 1-7 do not reflect the equivalent stages in the ‘Site Context Plan’.

However, we would not agree that that in any way constitutes a logical reason for seeking approval to construct high rise apartments on public open space, nor for appealing the Executive Director’s view that:

” Any construction on the part of the registered land bounded by Main Drive and Oak Walk is considered detrimental to the significant cultural heritage values of both this Heritage Place and the adjacent Heritage Place – the Former Willsmere Hospital (H0861)

As the Executive Director has said, “The Site Context Plan has remained an endorsed document without amendment for the duration of the now almost completed redevelopment of the registered land.”

Moreover, as we have said above, the grounds for the relevant Heritage Permit controls have not changed with respect to the subject site (Stage 8), nor have the objectives, principles, and design framework on which the Site Context Plan was based.

These principles, objectives, and design guidelines for the site are set down in the Kew Residential Services, Revised UDF (Urban Design Framework), October 2003, now an incorporated document in the Boroondara Planning Scheme.

The UDF states (p3) that:

Overarching strategy for the site is to utilise opportunities for the maintenance, enhancement and celebration of significant cultural and landscape assets on the site, generally within the future public realm.

The UDF then details the very specific interface and edge conditions for the subject site (“Yarra Bend Grove”) , including not only the 26 metre minimum setback rule for buildings greater than 3.5 metres from both the south and west boundaries (p.10 & 22), but also the significantly larger setbacks required to:

  • Recognise significance of the high ground adjacent to Yarra Bend Park as an important public feature,
  • Recognise the old Willsmere complex as the dominant building element of the precinct,, and provide
  • “Protection of existing trees and public open space amenity” in the Yarra Bend Grove.

(See: Built Form at Edge Connection, 10am-3pm Max shadow diagram at Equinox “Yarra Bend Connection” UDF p13)

We recommend, therefore, that the Applicant be requested to provide an adequate and comprehensive explanation as to how their proposal complies with the requirements of the KRS Urban Design Framework (October 2003), as referred to in Heritage Permit Condition 9639 including:

  1. How their proposal complies with the 26 meter building setback requirement from the southern boundary ? ( Link: KRSUDF pp.10&19 attached )
  2. How their proposal complies with the interface and edge conditions for the Yarra Bend Connection as shown on ( Link: KRSUDF pp.13&19 attached)

Reason 4. The Applicant says that:

Construction will not cause unacceptable damage to the root system of Tree 158, a Hoop Pine (Auricania cunninghami).

On this issue of potential damage to Tree 158, with the greatest respect to the Applicant and to their expert Arborist and his report, we would respectfully recommend that the Heritage Council place greater weight on Heritage Victoria’s independent expert advice, than on expert advice that has been paid for by the applicant.

We say this given our perception that the Applicant has a poor track record in managing the heritage trees at Kew Cottages. For example we understand that the Applicant was prosecuted by Heritage Victoria for breaching the Heritage Act after a number of significant Red Gums were damaged by construction works.

Reason 5. The Applicant says that:

The development would not result in the loss of significant trees which would be detrimental to the cultural heritage values of this Heritage Place.

We understand that despite Permit Conditions and similar assurances in the past regarding Tree Protection measures at Kew Cottages significant trees such as Tree 160 (which was actually located on the subject site) have apparently been lost due to poor management by the Applicant.

Again we would recommend caution before accepting such assurances at face value.


Part 2

Part 3








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