RESPONDENTS: Stonnington City Council, Sally Holdsworth, Phillip Ring, Michael Graham and others

DATES OF HEARING: Monday 5 May and Tuesday 6 May 2003

SUBJECT LAND: 1891 - 1899 Malvern Road, Malvern East

MEDIUM NEUTRAL CITATION: [2003] VCAT 622

The decision of the Responsible Authority in relation to Planning Permit Application No. 1117/01 is set aside.

A permit is granted and the Responsible Authority is directed to issue a permit for the land at 1891-1899 Malvern Road, Malvern East. The permit will allow:

A variation of the Scheme's car space design requirements and the construction of a four storey building and associated works, including a basement, in accordance with the endorsed plans.

It is directed that the permit contain the following conditions:

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans substituted by the Tribunal in Application for Review No. P613/2002, but modified to show:

(a) Any changes necessary to ensure sightlines from the ground level car park conform to the relevant Australian standard.

(b) Retention of the existing acoustic fence on the north-eastern site boundary.

(c) A schedule of all external materials, colours and finishes and paving details (including samples and colour swatches) as required by Condition 3.

(d) Details of the proposed method of waste disposal/collection.

(e) Details of mechanical plant and acoustic treatments demonstrating that such plant accords with State Environment Policy N-1.

2. The development allowed by this permit and shown on the drawings and schedules endorsed to form part of the permit shall not be amended for any reason without the prior written consent of the Responsible Authority.

3. Prior to the commencement of the development, a full and detailed schedule of all external materials, colours and finishes and paving details is to be submitted to the satisfaction of the Responsible Authority. Once approved, the schedule will form part of the planning permit.

4. The "Urban Artwork" on the south-west elevation of the building must be to the satisfaction of the Responsible Authority.

5. Before any development starts a landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plan will be endorsed and will then form part of the permit. The plan must be generally in accordance with the landscape plan prepared by T. Vernon of Contour Design and tendered at the hearing of Application for Review P613/2002 but modified to show:

* Retention of the acoustic fence along the north-east site boundary and the use of plantings on the eastern side of the fence that would be visible above the ramp retaining wall of the development at 2 Moira Street.

* Use of advanced specimens for trees and tall evergreen shrubs with a height at planting of 2 - 2.5m for shrubs and 3 - 3.5m for trees.

* A planting schedule including directions for soil composition, mulching and irrigation.

6. The landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority prior to occupation of the office building and then maintained and where necessary renewed to the satisfaction of the Responsible Authority.

7. A qualified arborist must be present on the site whenever any excavation is to take place within 5m of the trunk of the existing Plane Tree in Moira Street. Any severance of roots associated with that tree is to be undertaken by the arborist. The Responsible Authority must be advised at least five business days prior to such excavation work being undertaken.

8. Accessways and car parking areas as shown on the endorsed plans must be properly formed to such levels that they can be used in accordance with the plans and must be surfaced with an all weather sealcoat and drained and maintained to the satisfaction of the Responsible Authority. A detailed design for construction and drainage must be forwarded to Council for approval prior to commencement of the development.

9. Car parking spaces must be line marked and are to be used solely for the parking of vehicles associated with the office use.

10. Where a car space is provided in the form of a mechanical car stacker each space in the stacker must be allocated to the same office tenancy.

11. The drainage of the site shall be to the requirements of the Responsible Authority and the discharge of water from the land affected by this permit shall be controlled around its limits to prevent any discharge onto any adjacent property or street other than by means of an underground pipe through the property, discharging to a legal point nominated to the satisfaction of the Responsible Authority.

12. "Keep clear" signs shall be provided in Moira Street to the satisfaction of the Responsible Authority and at the permit holder's expense.

13. Noise from air-conditioning and other plant and equipment installed on the building must not exceed the limits set by State Environment Protection Policy No. N-1.

14. Any exterior security lighting to be provided on the site must incorporate suitable baffles and/or be located so as to minimise the emission of light outside the site (save for pedestrian paths), to the satisfaction of the Responsible Authority.

15. This permit will expire if one of the following circumstances applies:

(a) The development is not started within three years of the date of this permit.

(b) The development is not completed within five years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

A road opening permit must be obtained from Council prior to the construction of any new vehicle crossover.

For the applicant for review: Mr Michael Wright, QC with Mr Adrian Finanzio of Counsel, by direct brief. They called the following persons to give expert evidence:

* Ms Catherine Heggan of Fulcrum Town Planners Pty Ltd;

* Mr Tim Vernon, Landscape Architect with Contour Design Aust Pty Ltd; and

* Mr Stephen Hunt, Traffic Engineer with Grogan Richards Pty Ltd.

For the responsible authority: Mr Andrew Crack, Consultant Planner

For the respondent objectors: The following respondent objectors appeared in person: Mr Michael Graham, Mr Graeme Orman, Ms Sally Holdsworth, Mr Phillip Ring, Mr Phil Moore and Ms Beverley Dihardjo.

1. This was an application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision by Stonnington City Council to refuse to grant a permit (in Permit Application No. 1117/01) to construct a five storey office building on the land at 1891-1899 Malvern Road, Malvern East.

2. At a directions hearing in October 2002 Senior Member Russell Byard considered an application by the permit applicant to amend the permit application by substituting revised plans for those that had originally accompanied the application. These revised plans, among other things, reduced the height of the building from five to four storeys and increased the Malvern Road setback of the top level.

3. The principal issue in this application for review was the question of the building's visual scale and bulk and whether this constituted an appropriate outcome for the small commercial precinct within which the subject land is located. Also at issue was the change in outlook from nearby dwellings and the likely impact on the local street network of traffic and parking generated by the use.

4. The application for permit was lodged with the Responsible Authority in September 2001. Following the giving of extensive notice of the application 119 objections were received. The grounds for objection were summarised in Mr Crack's written submission as follows:

"* The development is of an excessive height and scale in the context of the area.

* The proposal will promote an excessive number of traffic movements in surrounding residential streets.

* The development will promote excessive visual bulk.

* The provision for on-site car parking is inappropriate and will provide a spill-over effect into surrounding residential streets.

* The development will promote unreasonable overlooking to residential properties.

* The development is at odds with the character of the Hedgley Dene Gardens.

* The appearance of the development is not consistent with the neighbourhood character.

* The development will reflect light (during the day and night) off the glass and into surrounding residential properties.

* The development provides minimum setbacks on the site, further promoting its excessive massing and bulk.

* The development will promote a loss of daylight into surrounding dwellings.

* The development is an inappropriate scale in this local commercial strip.

* The proposal sets an undesirable precedent for the area.

* The development promotes visual pollution, noise pollution and environmental pollution (as a result of increased traffic movements in the area)."

5. In February 2002 the Responsible Authority's delegate considered the application for permit and, consistent with its officer's recommendation, resolved to refuse to grant a permit on the following grounds:

"1. The height and scale of the development is inappropriate and does not respond to the built form character of the area.

2. The development provides an inappropriate interface with surrounding residential properties.

3. The development will have an adverse amenity impact on neighbouring residential properties.

4. The proposed development does not comply with the relevant State and Local Planning Policies set out in the Stonnington Planning Scheme.

5. The development and intensity of use proposed is not consistent with a Group 4 Commercial Centre identified in the Municipal Strategic Statement.

6. There are limited landscape opportunities for a development of this magnitude."

6. The application for review was lodged with the Tribunal in March 2002 and the stated grounds for review are:

"1. The development responds appropriately to the site's location and character of the area.

2. The proposal is consistent with the objectives of the Business 2 Zoning.

3. The re-development of the site will improve amenity and the existing streetscape character.

4. The proposed height of the development is not unreasonable given the development's upper storey setback, articulated facades and proposed appropriate landscaping features.

5. The proposal responds appropriately to State and Local planning policies."

7. In the course of the hearing, and at the suggestion of the Tribunal, Mr Wright sought leave for the application for permit to be amended by substituting the property developer's name, that being 1899 Malvern Road Pty Ltd, for Fastnet Consulting Pty Ltd, who were agents for the proponent. There being no objection to this substitution we made the amendment pursuant to the powers vested in the Tribunal at Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).

8. Except for Messrs Graham, Moore and Ring, who presented oral submissions, those parties or their representatives that attended the hearing, as well as the persons called to give evidence, tabled and spoke to written submissions or witness statements. These, together with the plans, photographs and other material tabled in the course of the hearing, have been attached to the Tribunal's file.

9. Following the hearing, and in order to gain a clearer understanding of the issues raised we inspected the subject land and surrounding neighbourhood.

10. On Tuesday 20 May 2003 we delivered oral reasons for our decision to grant a permit. These reasons constitute a summary of those oral reasons with additional background detail added for completeness.

11. The subject land is located on the south-eastern corner of Malvern Road and Moira Streets in Malvern East. The land is regular in shape and has a frontage to Malvern Road of 35m, a depth along Moira Street of approximately 40m and an area of approximately 1,391 sq m. The land is currently used as a mechanical car wash. We were advised that this use operates seven days a week between 9.00 a.m. and 10.00 p.m. and we think it would be fair to say that none of the parties were in disagreement that this development makes very little in the way of a positive impact on the built form character of the neighbourhood.

12. The subject land is located on the northern periphery of a small commercial centre centred around the Malvern Road and Darling Road intersection and adjacent to the Darling Railway Station. According to Mr Hunt's evidence the station is some 150m to the south east of the subject land.

13. Immediately to the south of the subject land there is a single storey building occupied by a Chinese restaurant. To its south there is a three storey office building (Progress Software) which extends as far as Hurstmon Street. On the opposite side of Hurstmon Street, to the south of Progress Software, is a further office building of quite attractive contemporary lines used by the firm Ultra Data. This is a two storey building although it has a height, as acknowledged by Mr Crack, of approximately two and a half storeys. Beyond this to the south there is a series of mostly two storey shops and other commercial premises. We do not believe that any exhibit much architectural merit.

14. Land to the east of Malvern Road, behind the strip of commercial uses fronting Malvern Road, is zoned and used for residential purposes as far as the railway line and Monash Freeway. In Moira Street the predominant land use is multi-dwelling developments, mostly two storey and including a recently completed two storey apartment development immediately abutting the car wash and separated by a high acoustic fence and modest landscaping.

15. Immediately opposite the subject land in Malvern Road, before it converts to commercial uses further to the south, the land is occupied by single storey detached dwellings of the inter-war period. The same can be said of residential development in Hurstmon Street between the commercial strip and the Darling Station.

16. The following description of the proposal, which we adopt, is taken from Ms Heggan's witness statement:

"It is proposed to construct a four storey building containing thirteen separate office tenancies over basement car parking. A total of 2730 sq m of office space will be provided. A breakdown of the floor space allocation for each of the tenancies is as follows:

Access to the basement car park is achieved via one double width crossover from Moira Street. Two basements comprising four split levels are proposed containing a total of 88 car spaces which includes 18 car stackers (ie. 36 spaces). Lift and stair access is available from the car park into the offices. A further eight car spaces are provided at ground level in a four stacker arrangement. Access to these spaces is achieved via a single crossover also via Moira Street.

The ground level comprises three office tenancies and associated services. Pedestrian access is from Malvern Road and is identified by a cantilevered verandah section. The building setbacks at this level range from 2 to 2.5 metres from the Malvern Road frontage, 3 metres from the Moira Road frontage 1.78 metres to 3 metres from the north-eastern boundary and 600mm to 3.45 metres (light court) to the south-eastern boundary (ie. abutting the Chinese restaurant). Landscaping is proposed within both frontage setbacks and adjacent to the north-eastern boundary.

Identical floor plans are proposed for the first and second floor levels comprising four office tenancies and associated services. This level will have a zero setback to the Malvern Road frontage other than a 2 metre cut-away section in the southern corner and a recessed element above the pedestrian entry. The setback to Moira Street is generally 3 metres other than a section at the western corner of the building (also on the corner of Malvern Road and Moira Street) which is constructed to the Moira Street boundary. The setback to the north-eastern boundary (ie. to the residential interface) is 6 metres and the setbacks to the south-eastern boundary are the same as the ground level.

The third level is recessed and contains two tenancies. The setback to Malvern Road is 9.15 metres and the setback to Moira Street and the north-eastern boundary is 6 metres. The setback to the south-eastern boundary is 3.45 metres. Balconies are provided adjacent to Malvern Road and wrap around both sides of the building for a limited distance.

The elevations depict a contemporary architectural style and a variety of finishes including horizontal glazed elements comprising blue, green and grey tints, exposed concrete, several render finishes and a Colorbond roof canopy. The south-eastern elevation also provides an area adjacent to the southern corner of the building for urban artwork."

17. The subject land is zoned Business 2 under the Stonnington Planning Scheme. Within this zone no permit is required to use land for the purpose of an office however, pursuant to Clause 34.02-4 a permit is required to construct a building or to construct or carry out works.

18. The stated purpose of the Business 2 Zone, apart from implementing the State and Local Planning Policy Framework is "to encourage the development of offices and associated commercial uses".

19. Relevantly, as noted by Mr Wright, a shop is a discretionary or "permit required" use within the Business 2 Zone. We accept, therefore, that the primary purpose of this zone is for offices and the proposed development is consistent with that primary purpose. Furthermore, although the Victoria Planning Provisions allow for office floor space limitations - beyond which a permit would be required, the City of Stonnington has not sought to limit the floor area of offices within this particular commercial precinct.

20. Although there was some debate in the course of the hearing, we are also persuaded that a planning permit is required in this instance to enable the use of mechanical car stackers in the ground and basement level car parks. Pursuant to Clause 52.06-3 of the Scheme, referring to the design and car spaces and accessways, a permit is required to vary any dimension or requirement set out in that clause. We take the view that when a car space is supported in mid-air it is incorrect to suggest that it meets the design requirement for a 3.5m wide (or more) accessway to serve such space. Alternatively, or in addition, because there is less than 2.1m above the upper car space when a car is parked in the elevated stacker position, this further design requirement of Clause 52.06-3 is not met.

21. Should we be wrong in this we also accept Mr Wright's submission that in any case, pursuant to the buildings and works decision guidelines at Clause 34.02-4, the provision of car parking is required to be taken into consideration. Among other things such applications must be accompanied by a plan showing all driveways, car parking and loading areas. Clearly then, when considering whether to grant a permit for these buildings and works we must be satisfied about the nature and layout of the car parking spaces to be provided.

22. Clause 65 of the Stonnington Planning Scheme sets out decision guidelines which must be considered, as appropriate, when deciding about any application for permit under the Scheme. Importantly this clause commences with the following opening statement:

"Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause."

23. The decision guidelines of relevance to this application for review are:

* the matters set out in Section 60 of the Act;

* any matter required to be considered in the zone or other provision;

24. The purpose of the zone has already been set out. We will refer later to the relevant provisions of the policy framework. Section 60(1)(b)(ii), has relevance also in that it provides for the Metropolitan Strategy - Melbourne 2030, to be taken into consideration as it is a strategy that has been "adopted by (the) Minister".

25. As noted earlier the principal issue in this proceeding concerned the visual scale and bulk of the development and whether it makes an appropriate contribution to the built form character of the Darling Commercial Precinct, within which the subject land is located, or whether it would have an undesirable impact on the amenity of nearby residential properties. Also at issue was the potential impact on traffic and parking in the local area.

26. Referring firstly to the latter issue, this was a concern raised primarily by the respondent objectors. Indeed the submission on behalf of the Responsible Authority was that as the number of car parking spaces meets the requirement of Clause 52.06-1 of the Scheme, the "provision of car parking is considered satisfactory". Furthermore, it was Mr Crack's submission that "Council engineers have determined that the likely traffic impacts associated with the proposal are satisfactory. Though the proposal will result in increased levels of traffic, it is not considered that such increases should justify refusal of the development."

27. A concern of the respondent objectors, especially having regard to the fact that up to 30% of the requirement for parking is to be provided by way of mechanical car stackers, was that there may be a tendency for the on-site parking to be under utilised at the expense of public, kerbside parking. This, it was submitted could lead to parking congestion in Malvern Road and its residential feeder streets. Given the clearway restrictions on Malvern Road and Moira Street, overflow parking could concentrate in the nearby residential streets, to the detriment of local residents.

28. Having considered the evidence of Mr Hunt we are persuaded that for offices - although certainly not for a use such as shops or a place of assembly - the use of a limited number of mechanical car stackers is not an inappropriate means of obtaining efficiencies in the design and layout of car parks. We were persuaded that whilst two, four wheel drive vehicles may not be able to be accommodated within a double stacker certainly one, plus a sedan can be. Furthermore, the operation of these facilities appears to be no more or less convenient than tandem spaces which we acknowledge are commonly found in office developments where such spaces are allocated to single tenancies.

29. Mr Hunt acknowledged that certain visitors may choose to park in front of the land in Malvern Road, outside of clearway times and we see no difficulties with this; especially given the fact that an existing Malvern Road crossover to the car wash is to be returned to kerbside parking use.

30. On the subject of the capacity of local streets to accommodate the additional traffic to be generated by this development, we were again persuaded by Mr Hunt's evidence and indeed the Council Traffic Engineer's opinion that the additional traffic likely to be generated can be accommodated safely and without undue impact on existing levels of congestion in and around this intersection.

31. The photographs provided by Ms Dihardjo certainly show how traffic in Moira Street slows and banks back from the Malvern Road traffic lights during the morning peak hour. We were persuaded however by Mr Hunt's evidence that with the retention of a "keep clear" control over at least the main driveway crossover and possibly, if required by Council, the ground level car park crossover, will enable the relatively small number of vehicles accessing the site from the west to gain access without undue impact on traffic flows or safety. We acknowledge that Ms Dihardjo's photographs show vehicles standing across the existing keep clear driveway to the car wash. However we accept Mr Hunt's opinion that in the event of a driver seeking to turn right across the traffic stream, most drivers in the face of a keep clear sign will facilitate that movement. We do not regard a bank-up into Malvern Road as being a likely outcome on a regular basis.

32. Turning then to the matter of the scale and mass of the building, this issue can be considered both in terms of the impact on the public realm in Malvern Road and Moira Street and on the outlook from residential properties, particularly to the east and south-east.

33. With regard to the recently constructed apartments to the east, we agree with Mr Crack that these have been designed to "turn their back" on the subject land. This would appear to have been undertaken as a response to the existing car wash. Fortuitously, however, it has benefits for the proposed development also. It means that these dwellings have very little in the way of an outlook towards the subject land. Instead their principal outlook is to the front and rear which would not be affected by the proposed development. To the extent that some views will be available, we find that these views will be obscured or softened by the side boundary landscaping depicted in Mr Vernon's landscape plan.

34. Ms Holdsworth and Mr Ring expressed considerable concern at the scale and height of the proposed development as it would appear from the rear of their part one and part two storey dwelling and rear yard at 1 Hurstmon Street, to the south-east of the subject land. They already have the two storey, 2 Moira Street apartments to their north and the three storey Progress Software building to their west, The latter building is screened by a high, hedge-like row of Photinias. We would estimate that the Progress Software building is set back some 8m from the Holdsworth/Ring property boundary.

35. The proposed building is separated from the Holdsworth/Ring property by the intervening single storey Chinese restaurant which has a width of approximately 8m - scaling from the ground floor plan. At first and second floor level the proposed building would be set back 6m from its side boundary with No. 2 Moira Street and this increases to 10m at the third floor level.

36. We agree that the introduction of this building into the sky view from the Holdsworth/Ring residence will bring about a marked change to their outlook. We are not persuaded however that it is an unreasonable change having regard to their property's abuttal to land zoned for commercial purposes and to the fact that the proposed development would occupy a peripheral position in their outlook, with the 2 Moira Street apartments in their main viewline. We find it relevant also that the proposed building will not impact on the privacy of the Holdsworth/Ring residence. Neither will it cause any increase in overshadowing, having regard to the buildings and evergreen plantings around their rear yard.

37. In the following section we deal with the impact of the proposed building on the built form character of the Darling Commercial Precinct. Our findings in relation to this issue further reinforce our opinion that the impact of this development on the Holdsworth/Ring outlook is not unreasonable having regard to their Commercial Zone abuttal.

38. The Darling Local or Neighbourhood Activity Centre is shown as a Group 4 Local Centre on Stonnington's Strategic Framework Plan at Clause 21.03 of the Scheme. At Clause 21.10 and also in the Retail Centres Policy at Clause 22.09-1 it is suggested that within the Group 4 centres a hub" of retail uses should be retained to cater for local community needs. However, rather than applying the more retail focussed Business 1 Zone, the Business 2 Zone is applied in order, as stated at Clause 22.09-1, "to allow for restructuring and a wider range of office and service uses to locate". At Clause 21.10, referring to the "Identity of Commercial Ares, their Focus and Residential Interface", a relevant Strategic Direction is for such centres to "maintain a two storey scale that reflects the character of these areas".

39. It was submitted by the Responsible Authority and the respondent objectors that the proposed building contravenes this strategic direction and that the preferred outcome for this site would be at most a three storey building, with the top floor set back behind a two level podium to the street.

40. Throughout the Stonnington Planning Scheme, including in particular at Clause 22.02 setting out the City's Urban Design Policy, there is an emphasis on respecting the generally "two storey built form character of the city in residential areas and most commercial areas_"_(emphasis added). Indeed in the Urban Design Policy basis at Clause 22.02-1 it is suggested that higher scale development within the city should be directed to:

"Particular land designated on the Strategic Framework Plan, (being) generally land:

* within commercial centers in the Group 1 category of the centre's hierarchy.

* at identified gateway localities and large sites."

41. Although Malvern Road to the front of the subject land is a Category 1 Road Zone, this particular section of Malvern Road is not among the Category 1 Road Zones designated on the Strategic Framework Plan. Neither is the subject land identified or included within a gateway - although we note that there do not appear to be any gateways shown on the Strategic Framework Plan. Furthermore, although the land has an area of 1,391 sq m, which is relatively large, it is apparent that the policy interpretation of a "large" site in a commercial centre is one that is in excess of 0.5h ie. 5,000 sq m.

42. However, the Urban Design Policy does not rule out development over two storeys per se. It is clear that the policy provides for buildings of a greater scale or height where it can be demonstrated that they achieve an appropriate urban design outcome. The objectives of the policy, that is to say the outcomes sought to be achieved by having this policy include:

"* To ensure the design and scale of new development makes a positive contribution to the built form of the area and is respectful to the existing character and streetscape.

* To encourage innovation, good design and high standards in the construction of new buildings.

* To maintain the diverse character of the city's building forms ...

* To ensure the use of materials and form of construction respects the character of the area ..."

43. The provisions of the policy go on to suggest how these objectives might be met and as stated at Clause 20 of the Planning Scheme, a local planning policy provides guidance to decision makers on a day to day basis and can help the community to understand how the Responsible Authority will consider a proposal. At Clause 22.02-3, stated policies for new buildings are that they not be significantly higher or lower than surrounding buildings; that the parts of a building over two storeys be set back to minimise impacts on the streetscape and that development be of a height and scale that is consistent with its "particular" setting and location.

44. It is policy also that if development in locations other than the Chapel Street/Toorak Road area are to be of a height and scale that is inconsistent with the site's setting and location then an applicant should demonstrate that:

* The building does not abut a heritage place - and in this particular case the building does not abut a heritage place.

* Portions of the building over two storeys are set back from the frontage to maintain the streetscape - and in this case the part over three storeys is set back. We were advised that this is in response to the three storey and two and a half storey scale of the Progress Software and Ultra Data buildings nearby.

* The building has been designed to complement the character of the area - it was the evidence of Ms Heggan, and we agree with her, that the design would provide a contemporary and carefully composed northern entry statement for the Darling Precinct - replacing the car wash which all parties agreed makes only a negative contribution to the built form of the precinct and disguising or concealing the also rather poorly composed three storey side elevation of the Progress Software building.

45. A further dispensating factor for buildings of a height and scale inconsistent with their setting is that the building should not adversely affect the amenity of adjoining residential properties through "overlooking, overshadowing, traffic and parking associated with the use". In this regard we have already found that there are no unreasonable impacts on overlooking, overshadowing, traffic and parking.

46. A final relevant provision of the Urban Design Policy is that variations to the policy may be considered if they will facilitate various outcomes that are stated in the policy to be specifically encouraged in Stonnington. These include:

"* effective use of upper floors of commercial buildings.

* communication and technology based industries.

* medical and other service uses located in commercial rather than residential areas, particularly in Group 4 centres."

47. It was submitted by Mr Wright that the Darling Local Activity Centre is fast becoming a centre for new technology businesses and in this regard he pointed in particular to the Progress Software and Ultra Data developments.

48. In Ms Heggan's opinion a contemporary styled building with up-to-date facilities adjacent to these other premises could well consolidate the new technology emphasis that has developed within the precinct to date, providing the activity centre with a sense of identity which we understand to be an objective of the Activity Centre's Policy 1.1 in the Metropolitan Strategy, namely to "encourage economic activity and business synergies".

49. Ms Heggan also contended that the size of the office tenancies proposed for this building could be suited to new technology businesses in their start up phase as well as for businesses in allied areas. We consider these to be reasonable assumptions. We are also persuaded that the building has obvious potential for medical and allied service uses. Another important consideration is the locational advantages offered by this particular activity centre. Not only is it very well served by public transport but it has, at its door step, access to the Monash Freeway and therefore linkages throughout the metropolitan area.

50. Having regard to the Urban Design Policy as a whole we are persuaded that the proposed building will indeed deliver an outcome consistent with the policy's aims and objectives. We find it relevant that the development of an up-to-date, well designed office building in a contemporary style, and well served by both road and rail, will attract the types of businesses being encouraged for these Group 4 centres. At the same time and consistent with the retail centres policy this building will not take away from the existing commercial viability of this centre. Rather, and in this we agree with Ms Heggan, that if anything the injection of this office development will assist in the restructure of the centre and provide a fillip for existing businesses, bringing new patrons to their doorstep.

51. We are not persuaded that the building is, in any case, of a height and scale that is "inconsistent with its particular setting and location", thereby warranting consideration of the urban design policy's dispensating factors. However, if we had been we would have found that it met the "let out" provisions referred to by not abutting a Heritage Precinct, by being designed to complement the character of the area, by having the upper floors set back - albeit above third floor level - and by not unreasonably affecting residential amenity to overlooking, overshadowing, traffic and parking.

52. Our inspection confirmed that the existing "character" of this activity centre is such that it can happily accommodate the proposed building. Indeed we are of the view that it will positively enhance that character. It will add a quality structure to replace an unattractive car wash and to mask the rather unfortunate built form of the Progress Software building. We think this finding is further reinforced by the June 1999 "Commercial Strategy - Background Paper" referred to by Ms Heggan. At page 30 of the background paper the Darling Centre is described as follows:

"There has been substantial redevelopment for larger scale two - three storey office buildings. A few local shops remain (eg. milk bar, bakery, newsagent) and there are some specialist retailers (eg. baby goods) plus services in the original shop buildings (predominately one - two storey inter-war style). However the visual focus of the centre is on the offices_. Both street furniture and consistency of planting needs to be improved._" (emphasis added)

53. As acknowledged by Ms Holdsworth this centre is the only such local centre where it could be said that the "visual focus" is on larger scale two to three storey office buildings. In our view the addition of this building simply builds upon that character in a manner consistent with the objectives of the Urban Design Policy. It does this we find without having any significant disbenefits in terms of its interface with the residential hinterland.

54. We think it also open to find that the resultant built form outcome is consistent with the outcomes being sought by the Metropolitan Strategy - Melbourne 2030.

55. As noted by Ms Heggan the strategy's support for the now implemented urban growth boundary reinforces the need to restructure established activity centres. Read as a whole the Metropolitan Strategy anticipates that such restructure must continue to respect the built form context within which it is to occur. However we do not consider that a thoughtfully designed, contemporary three storey office building, with an additional floor set less obtrusively above, is an unreasonable or unacceptable outcome. This is especially so having regard to Ms Heggan's evidence, confirmed by our own inspection, that the view shed for this proposed building is quite limited. For the most part it will be read against its two and a half to three storey near neighbours or, in the case of views from the north, from relatively close quarters and against a primarily commercial precinct background. This is because of the road geometry and local tree canopy which combine to restrict views until one is almost upon the centre itself.

56. In conclusion we are persuaded that consistent with the objectives of the Retail Centres and Urban Design Policies, the design and scale of this new building will make a positive contribution to the built form of the area and is respectful to the existing character and streetscape. It is also a building of a high architectural standard that is both well designed and innovative and is likely to assist in the restructure of the Darling Commercial Precinct by adding to its economic base and vitality.