SUBJECT LAND: 331 - 333 St Kilda Road, St Kilda

MEDIUM NEUTRAL CITATION: [2002] VCAT 665

1. The Responsible Authority's decision is set aside.

2. The Responsible Authority must issue a permit for use and development for 80 dwellings in two buildings, one 5 storey in height, one 3 storey in height above basement car parking, generally in accordance with plans by dKO Architects, 18 Jan 2002 No. a01-a15 (inclusive) but amended in accordance with Condition 1.

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 generally in accordance with the submitted but modified to show:

a) The fourth level of the building set back at least 3 metres from the Blanche Street property alignment.

b) A schedule of colours, materials, finishes and textures to the satisfaction of the Responsible Authority.

c) Delete reference to the stairwell above the third level parapet on the elevation(s) of the Blanche Street building and show the full height of the lift overrun.

d) Construction of the lane between the subject site and Market Street.

e) Landscaping generally in accordance with the Landscape Plan by EDAW tabled at Review Hearing 2001/7378 but modified in accordance with Condition 7.

f) Full details of screening devices to prevent overlooking of adjoining residential properties whilst continuing to allow horizontal and upward views.

g) Incorporation of the features of the energy rating report and energy efficiency and water saving techniques to the satisfaction of the Responsible Authority.

h) Provision of an intercom system at the Blanche Street vehicular access.

i) Provision for one secure bicycle storage or lockable parking area for each five units, preferably adjacent to lift cores.

j) Details of siting of solar panels, building plan and equipment, any satellite dishes and or plumbing.

k) Front fencing to the Blanche Street dwellings shown as 1.5 metres above footpath level (or an alternative height to the satisfaction of the Responsible Authority).

l) Screening of balconies to Units 2.10 & 2.11 and balconies and windows of 2.21 and 3.10.

m) Details of acoustic treatments consistent with the recommendations for "minimum/quality accommodation as outlined in Section 12 of the report by Marshall Day dated 2002 (as tabled at Review Hearing 2001/P51739).

n) Revised egress ramp detail to the northern lane consistent with the plan tabled at Review Hearing 2001/P51739.

2. The use, development and design as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

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

a) The development and use is not started within 2 years of the date of this permit.

b) The development is not completed within 2 years of the date of commencement of works.

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.

4. The Applicant/Owner shall do the following things to the satisfaction of the Responsible Authority.

a) Pay the costs of all alterations/reinstatement of Council and Public Authority assets necessary and required by such Authorities for development.

b) Obtain the prior written approval of the Council or other relevant Authority for such alterations/reinstatements.

c) Comply with conditions (if any) required by the Council or other relevant Authorities in respect of reinstatement.

5. Outdoor lighting must be designed, baffled and/or located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.

6. Prior to the occupation of the premises for the new use, areas set aside for parked vehicles, loading bays and access lanes as shown on the endorsed plans and approved engineering plans must be:

* Constructed to the satisfaction of the Responsible Authority.

* Properly formed to such levels that they may be used in accordance with the plans.

* Surfaced with an all weather seal coat to the satisfaction of the Responsible Authority.

* Drained and maintained to the satisfaction of the Responsible Authority.

* Line marked to indicate each car space, loading bay and all access lanes in accordance with the endorsed plans to the satisfaction of the Responsible Authority.

7. (a) Landscaping must be undertaken in accordance with the

EDAW landscape plans and schedule (as modified in accordance with part (b)) as tabled at Review Hearing 2001/P51739 and shall be completed before the building is occupied. All landscaping must be maintained to the satisfaction of the Responsible Authority.

(b) The landscaping plan prepared by EDAW must be modified by:

(i) deletion of reference to alternative pavement treatment and street trees within St Kilda Road and Blanche Street reserves.

(ii) the planting Lilly Pilly trees shall be not less than one metre from the north-western property boundary.

8. All piping and ducting shall be concealed unless otherwise approved by the Responsible Authority.

9. No equipment, services and architectural features other than those shown on the endorsed plan shall be permitted above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority. No more than three television antennae shall be erected within the perimeter of the site.

10. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

11. Finished ground floor levels of proposed buildings must be a minimum of 300mm above the applicable flood level.

12. The entry/exit driveways of the basement carparks incorporate a flood proof apex of a minimum of 300mm above flood level or the measures of prevent flooding of the basement to the satisfaction of Melbourne Water.

13. The basement drainage system is to be constructed so that external flooding is unable to penetrate the basement area. Vents, staircases and lift voids are not allowed to act as flood water inlets to floor levels below the flood level.

14. Upon completion of the works, a certified survey plan, showing levels reduced to the Australian Height Datum, must be submitted to Melbourne Water to demonstrate that Melbourne Water's conditions have been satisfied.

15. The car parking allocation used in any Plan of Subdivision for this development shall:

* Include not less than 1 car space per single bedroom apartment

* Visitor spaces (as required in the assessment) shown and marked accordingly, and the

* Remainder of car spaces allocated for the 2 bedroom apartments provided each unit has at least 1 car space.

All carparking spaces for the residential apartments shall be shown on any Plan of Subdivision as part lots to the dwelling lots.

16. Prior to occupation of any dwelling a mirror shall be erected (at the owners expense) at the intersection of the northern laneway and Market Street and shall be maintained to the satisfaction of the Responsible Authority.

17. Egress to the northern laneway from the subject site between 10pm and 7am on any day is prohibited (unless alternative access arrangements can be made to the satisfaction of the Responsible Authority).

18. Any airconditioning plant and equipment shall be obscured from a public view to the satisfaction of the Responsible Authority (this includes placement of any airconditioning equipment on balconies which are partially obscured by the front glazed feature).

19. The entry/exit gates and intercom facility shall be installed prior to occupation of any dwelling and must be maintained to the satisfaction of the Responsible Authority.

PLANNING AND ENVIRONMENT LIST PLANNING AND ENVIRONMENT LIST

Mr. R. Schuster, Town Planner, represented the Responsible Authority. He called evidence from Mr. R. Milner, Town Planner.

Ms. S. Provis, represented herself and other objectors.

Mr. J. Gobbo QC with Mr. P. Connor, represented the Applicant for Review/Permit Applicant. They called evidence from Mr. P. Borelli, Town Planner, Mr. P. Fearnside, Acoustic Engineer, Mr. M. Brits, Landscape Architect, and Mr. D. Grogan, Traffic Engineer.

1. This is an Application for Review pursuant to Section 79 of the Planning and Environment Act 1987 against failure of Port Phillip City Council to determine Application for Permit No. 421/2001 within the prescribed time.

2. The Responsible Authority subsequently resolved that had it the power to determine the application it would have refused the application on the following grounds:

1. The proposal is an overdevelopment of the site.

4. The proposal would adversely affect the amenity of adjacent residential properties.

5. Use of the closed Road at the rear would have significant impact upon the amenity of residential properties abutting the lane.

6. Internal amenity is compromised by inadequate access to private open space.

7. The issues of energy efficiency and environmentally sustainable development have not been adequately addressed.

3. The application for permit seeks approval for use and development of two buildings to contain 80 dwellings with ancillary basement level carparking. The plans (as amended) show the western or Blanche Street building will contain a three storey building with 5 dwellings, three of which are two bedrooms. This building is set back about 1 metre from the Blanche Street property alignment and about 1 metre from the western property alignment (with the exception of stairwell and balconies which protrude to the western boundary). A lift is supplied.

4. A larger eastern building will run for the entire St Kilda Road frontage and will be a total of five storeys. The basement is elevated. Part of this building for three levels will wrap around the Blanche Street property frontage for a distance of about 15.5 metres, whilst the remaining part would be set back about 1.6 metres from the Blanche Street elevation. A further fourth level would be set back between 2 and 3.6 metres from the St Kilda Road frontage. There would also be a fifth, but noticeably smaller level, which is set back about 5 metres from the St Kilda Road frontage and about 10 metres from the Blanche Street property alignment.

5. Parts of the lower level of this main building, particularly at the corner of Blanche and St Kilda Road and its northern extremity, will have brick face work whilst the remainder of the building will be glazed in two forms. Substantial glazing in the form of a specifically designed glazed curtain wall with opening shutters is proposed along all bedroom and living areas facing St Kilda Road.

6. The applicant also proposes to superimpose the number "333" onto the glass facade for artistic purposes. The individual slot windows to each enclosed balcony would animate the facade.

7. Carparking for 104 parking spaces, garbage storage and private storage, will be provided in two basement level carparks with primary access and egress to Blanche Street. Vehicular egress is also proposed from the northern part of the site into an unconstructed or semi-constructed laneway which feeds into Market Street. No vehicular access is proposed to St Kilda Road although the main pedestrian access is oriented to St Kilda Road.

8. The subject site is located on the eastern side of St Kilda Road. It has a frontage of 71 metres to St Kilda Road and 54 metres to Blanche Street. Total area of land is about 2057 square metres. The site is currently occupied by a two storey office building.

9. Land to the west in Blanche Street comprises three 2 storey recently constructed dwellings, a vacant property and five single storey attached dwellings facing Market Street. Land to the immediate north is an open unconstructed carpark associated with a car rental business. Land opposite in Blanche Street comprises single and recently constructed two storey attached and detached dwellings. Land opposite on the other side of St Kilda Road comprises a mixture of commercial businesses in single two and three storey buildings.

10. St Kilda Road is a major metropolitan arterial road with heavy traffic movements. It also has tram services running along it.

11. The subject site is zoned Business 2 (clause 34.02) under the Port Phillip Planning Scheme. Accommodation (land used to accommodate persons, including dwellings) is a Section 2 use and requires a planning permit. A permit is required to construct a building or to construct or carry out works pursuant to Clause 34.02-4 of the Planning Scheme.

* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To encourage development of offices and associated commercial uses.

13. Land to the south in Blanche Street is zoned Residential 1, whilst abutting land to the west in Market Street is zoned Mixed Use. Land to the immediate north is zoned Business 2.

14. The site is also covered by a Special Building Overlay. The overlay identifies land which is subject to flooding and requires referral of the application to the relevant Flood Plain Management Authority, which in this case is Melbourne Water. Melbourne Water have placed various conditions in the event a permit is issued. These were not at issue in the application although they do have some impact on the design and placement of ground level floors and vehicular access arrangements.

15. There are various State and local planning policies of relevance to this application and these are included in the following:

* Clause 22.06 Urban Design Policy for Multi Residential

16. The Tribunal was required to consider the Good Design Guide for medium density housing especially as it related to that part of the development which was contained within three storey buildings (ie. the Blanche Street building).

17. At the review hearing all parties provided detailed written submissions. All witnesses were available for cross-examination. The Tribunal was provided with an array of photographs of the subject site. In addition the Tribunal undertook an inspection on the day following the review hearing.

18. At the commencement of the hearing Mr. Gobbo formally sought leave to substitute the application plans. There was no objection to this as these plans had been pre-circulated to all relevant parties. Accordingly the plans were substituted pursuant to Section 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

19. Mr. Schuster advised the Responsible Authority's key areas of concern were:

* The Blanche Street building was considered to be excessive in height and its third level at a minimum should be made to be more recessive;

* The Blanche Street building should be set back a greater distance from its western boundary to comply with the Good Design Guide

* An appropriate front fence to the Blanche Street building should comply with the Good Design Guide.

* The St Kilda Road building was considered to be excessive in height by up to two storeys.

* The density is excessive and is represented by excessive heights and would result in excessive vehicular use of Blanche Street

* An unconstructed lane would result in residential amenity impacts.

20. Mr. Schuster also argued that the private open space areas for the proposed dwellings requires resolution in that many units rely on entirely enclosed balconies abutting St Kilda Road or alternatively these open balconies would be exposed to traffic noise and pollution. He argued that these facilities do not act as private open space but are like rooms with openable windows.

21. Mr. Schuster was critical of energy efficiency techniques to be used in the construction and management of the buildings.

22. Mr. Schuster argued that there was a need for considerable redesign work, the extent of which are beyond amendments to be incorporated in conditions on a permit. He argued that the proposal should be subject to a fresh application and subject to another notification process.

23. Mr. Schuster gave a detailed account and comparison of the proposal against various policy objectives and strategies. We will not repeat these but hold this detailed submission as a record on file.

24. Mr. Schuster called evidence from Mr. Rob Milner, Town Planner. Mr. Milner's primary evidence was:

* Residential use of the business zoned land is appropriate, however the proposal fails to incorporate any commercial element at street level to St Kilda Road. In this regard 1 find it not to be consistent with the primary purpose of the Business 2 Zone and key provisions of Council's Municipal Strategic Statement (MSS), together with basic planning principles for the development and use of land within a business precinct with a highway frontage.

* The proposed use and development has positive attributes and as a concept should be welcomed for a site that is suitably located to capitalise on the excellent infrastructure available. It provides for excellent surveillance of nearby public and private places, thus possessing real potential to provide some relief to neighbours and the community in general that incur amenity loss arising from the use of the area by street workers and other nocturnal activities.

* The development would introduce a 'hard edge' form to St Kilda Road as promoted by local policy directions. The proposal also seeks to introduce a hard edge form to Blanche Street. Given the distinctly separate contexts of the respective streets, a different approach to the Blanche Street elevations, particularly the smaller three storey building should be carried out.

* The proposal does not effectively address the limitations of the site and its environs,. particularly in terms of traffic and built form constraints. Specifically, I consider the amount and anticipated frequency of traffic movements onto Blanche Street and a minor laneway to be excessive, whilst the combined building envelope is up to two storeys too high and the building forms are not sufficiently broken down or articulated to warrant their sheer size and coverage.

* It follows that overall 1 find the development fails against objectives of local planning policy in respect of Urban Design for non-residential development and multi-unit residential development (Clause 22.06), Urban Design for new Residential Development (Clause 22.05) and Housing (Clause 22.09) so as to warrant its support.

* I note that Melbourne Water has consented to the finished floor levels as proposed by the development and in this regard, the proposal is consistent with the provisions of the Special Building Overlay.

* For some proposed dwellings, the form of accommodation will provide compromised levels of amenity for the dwellings' future occupants, whilst the layout of the larger building is reminiscent of a serviced apartment development or similar short-term forms of accommodation.

* The area's in which 1 have identified the development as requiring major modification are its overall intensity, siting and form vehicle access and egress building envelope and external appearance, livability for its future occupants and amenity impacts on its neighbours.

* Under the above terms the proposal is an inappropriate use and development of the site and in my opinion a permit should not issue.

25. Ms. Provis on behalf of objectors raised concern about the proportions and dimensions of the proposed development. She claimed it was a massive overdevelopment of the site and was a huge supply of tiny dwellings, inconsistent with neighbouring properties which would dominate, overshadow and invade the privacy of neighbouring homes in two relatively quiet, mainly residential streets. She also claimed there was inadequate street setbacks and as result the building would dominate the streetscape.

26. Ms. Provis was also critical of the amount of open space for the development and claimed that much of the private open space provided faces the traffic, noise and fumes of St Kilda Road and was largely unusable.

27. Ms. Provis raised concern about traffic management and claimed the development will place unprecedented volumes of traffic on the narrow side streets which barely accommodate current residential and business needs. She claimed that traffic and parking generated by those living and visiting the development would be intolerable and claimed that both streets have kerb parking on both sides and both are wide enough for safe travel in one direction only when cars are parked on both sides of the street.

28. Ms. Provis was critical of the location of the crossover which served main access to the development. She claimed it would adversely affect the visual amenity of Blanche Street, increasing noise nuisance and pollution.

29. Ms. Provis was also concerned about the personal security of residents, most particularly women and women with small children who would be put at risk if required to park at any notable distance from their homes given the traditional traffic associated with the ongoing and apparently unsolvable street sex worker soliciting in the area. She claimed it was the objectors' experience that publicly accessible yet secluded spaces are used to shelter from the elements at night and provide convenient places for the well acknowledged and documented nasty elements of the area to undertake illegal and anti-social activities such as selling of drugs, soliciting sex and servicing clients.

30. Ms. Provis was highly critical of the architectural or aesthetic merit of the development and claimed it was completely out of context with the neighbourhood. In summary Ms. Provis suggested the proposed development should be of one to two storey in nature and claimed that she didn't see how it addressed the constraints of the site.

31. Mr. Gobbo for the Applicant for Review argued the subject land is a prime candidate for a substantial residential development. He referred to Mr. Milner's evidence which he claimed acknowledges the subject land's connection and proximity to good quality infrastructure giving rise to an opportunity for medium to high density residential use of the subject land. He also referred to Mr. Milner describing the opportunities of the site including its:

* corner location with a range of vehicle access opportunities,

* proximity to a range of retail, entertainment, educational, recreational and public transport opportunities,

* the fact it provides for excellent surveillance of public spaces.

32. Mr. Gobbo submitted it was Mr. Milner, not Council that raised the issue as to whether or not the primary purpose of the Business Zone is met. He argued that there is no basis for rejecting this proposal because it has no commercial element.

33. In response to the criticisms by Mr. Milner, Mr. Gobbo advised that some form of commercial development is not necessary as:

* the use itself is discretionary and permissible;

* the site has limitation for many forms of commercial use given the absence of a service road and dedicated parking and loading areas;

* the proposal has greater integrity as a single use and as proposed avoids conflicts between commercial and residential uses giving rise to amenity concerns for residents or operational constrains for commercial users.

34. Mr. Gobbo, referring to Mr. Milner's criticism that the Blanche Street presentation is too "hard edge" submitted this criticism ignores both the integrity of the design and the form of the adjacent buildings to the west which have a Blanche Street frontage. He advised the proposal is an integrated design which presents a hard edge to St Kilda Road and it would lead to a design of poor integrity and lower standard of architectural response if the proposal addressed its respective street frontages in an entirely different way. He argued the proposal is ultimately softer and has much more generous setbacks than the cuboid form of the townhouse developments to the west of the subject site in Blanche Street and accordingly strikes a balance and constitutes a reasonable and appropriate resolution of the Blanche Street frontage.

35. Mr. Gobbo responded to the criticism of Mr. Milner about the development's compliance with Clause 22.05 of the Planning Scheme - Urban Design Policy for New Residential Development submitting that it complies with Performance Measure 1 which has as its objective that "new development be consistent with prevailing streetscape character". He submitted the analysis indicates that the proposal meets the suggested design response because the Blanche Street building is no more than one storey higher than the height of adjoining development. He argued that the proposed ground floors of the Blanche Street buildings are more generously set back than the adjacent townhouses to the west by a distance of 0.5 metres to 1.5 metres and second and third levels are set back 2 metres to 2.5 metres. He submitted this aspect of the proposal will have a far superior street interface than the townhouses to the west which have no front setback at both ground and first floor levels.

36. Mr. Gobbo argued that with regard to mass and orientation (Performance Measure 2) Mr. Milner had considered the roof form to be entirely appropriate having regard to the existing building on the site.

37. In responding to criticisms of Mr. Milner about landscaping (Performance Measure 4) he advised that the proposed development was a considerable improvement to a generally understated landscape character.

38. Mr. Gobbo argued that the four performance measures had been met and this strongly points in favour of compliance with policy.

39. Mr. Gobbo was critical of Mr. Milner's assessment of the proposal under Clause 22.05 and his lack of attention or test against the stated performance measures of Clause 22.06. He argued the reason is obvious - a high level of compliance is demonstrated.

40. Mr. Gobbo argued that there was no height or Design and Development Overlay in this section of St Kilda. He claimed there were no recommended height limits or guidelines. He referred to the performance measures and claimed the 3 + 1 performance measure operates over a wide area, most of which is quite unlike St Kilda Road and the relevant urban character study does not recognise building scale as an important element along St Kilda Road south of the St Kilda Junction.

41. Mr. Gobbo referred to Mr. Milner's criticism of the building envelope being up to two storeys too high and to the lack of articulation or stepping down of the building. He claimed that Mr. Milner later acknowledges that there is context for at least double storey development (third storey component in Blanche Street if recessive, and potential for a larger scale development to St Kilda Road). He argued that the dispute with Mr. Milner is really about one extra storey as to whether the proposal is sufficiently broken down and/or sufficiently articulated given that all parties supported the principle of the "hard edge" to St Kilda Road. He claimed this then becomes a dispute of limited scope because the opportunities for setbacks and/or significant articulation are minimal with the "hard edge" design solution.

42. Mr. Gobbo claimed that the proposed development starts at three storeys at the Blanche Street interface and steps up gradually by rising essentially one further storey and also incorporating a "minor" and highly recessive fifth storey element. He argued it was a well designed proposal of entirely appropriate density and corresponding form.

43. Mr. Gobbo argued the proposal will enhance neighbourhood character through the demolition of the existing building and the removal of the disamenity the present site creates, particularly having regard to street prostitution and illicit drug sales. He claimed there is no doubt that the proposal will provide a net improvement in the public realm and streetscape, particularly to the St Kilda Road frontage. This is entirely consistent with the underlying thrust of the policy framework.

44. Mr. Gobbo responded to criticisms by the Responsible Authority of various urban design elements and submitted that Mr. Milner's concern with the presentation of the main building is a product of its height, not the material employed. The south-east corner will read as a strong three storey element with the fourth level visible but in no way dominant. He claimed the proposed glazed screen will significantly enhance amenity levels and it should not be ignored that this is affordable housing on a site which has as both a constraint and an opportunity given its proximity to a major road and the trams that run along it. He claimed that prospective residents with a sensitivity to this aspect who consider that they will not be able to enjoy their open spaces despite the screen:

(a) may choose to avail themselves of the significant communal landscaped area to the west;

(b) may choose not to occupy a unit with a St Kilda Road frontage.

45. With regard to criticisms about traffic movements onto Blanche Street, Mr. Gobbo argued that Mr. Milner had not undertaken detailed analysis by reference to traffic counts or the increase in traffic movements by comparison with the present use of the site or any analysis of the capacity of Blanche Street. He claimed this was curious given the advice of Council's own traffic engineer.

46. Mr. Gobbo called evidence from Mr. Phillip Borelli, Town Planner, whose evidence in chief was:

"In my opinion, the application site is suited to an apartment-style housing use, provided the constraints of the site are properly addressed. The development addresses these constraints appropriately and also uses the opportunities the site presents. it will provide affordable but good quality dwellings with a good standard of amenity in a location where this form of housing is in demand.

The proposal also meets the relevant policy objectives of the Planning Scheme, particularly those policies that seek to provide housing diversity and to efficiently utilise the development potential of sites in designated residential growth areas. At the same time, the development respects the characteristics of the neighbourhood and avoids any unreasonable effect on nearby properties.

Overall, it is the type of use and development which the applicable planning policies seek to encourage and, in coming to this conclusion, I have made all the investigations which I consider desirable and appropriate and no matters of significance which I regard as relevant have, to my knowledge, been withheld from the Tribunal."

47. Mr. Borelli also provided verbal response to a number of criticisms raised by Mr. Milner and explained his interpretation of the policy context which this site should be seen.

48. Mr. Gobbo relied on evidence from Mr Peter Fearnside, Acoustic Engineer, whose principal evidence was:

"It is proposed to construct a residential development at No. 333 St Kilda Road, St Kilda. Parking for vehicles will be provided for residents with an access driveway located off Blanche Street and egress via an existing lane between Nos. 2 & 4 Market Street.

The nearest affected residential properties are the single storey properties located in Blanche Street to the south and in Market Street to the west.

The carpark is likely to generate 20-60 vehicle movements during the night period of 2200-0700hrs (10.00pm-7.00am).

Noise from both 'normal' and 'worst- case' vehicles using the proposed carpark will exceed the Griefahn and NSW EPA sleep disturbance criterion with open bedroom windows.

The rear of properties in Market Street and the front of properties in Blanche Street are currently affected by traffic noise from St Kilda Road. Existing traffic noise exceeds the Griefahn and NSW EPA sleep disturbance criterion with open bedroom windows.

The motorised carpark gate will be inaudible at the nearest affected residential properties.

The mechanical services equipment will be designed to be inaudible inside the nearest affected residential properties with windows open, using appropriate equipment selections and proprietary noise control equipment.

An acceptable level of internal traffic noise can be achieved using the specified glazing systems."

49. Mr. Gobbo argued there were no insurmountable difficulties in achieving appropriate noise levels in order to comply with the Griefhan sleep disturbance criterion for Nos. 4 and 5 Market Street and that noise data prepared by Mr. Fearnside demonstrates that these properties are already subject to noise levels in excess of the Griefhan criterion due to the exposure to traffic noise from St Kilda Road. He claimed there would be a benefit in the form of a shielding effect created by the development for the benefit of the properties west of the development in relation to noise levels experienced from St Kilda Road and that good levels of internal acoustic amenity if laminated, toughened or monolithic glass at a range of gauges is used throughout the development as suggested by Mr Fearnside.

50. Mr. Gobbo argued there appears to be no issue over the number of car spaces to be provided and claimed this represents an appropriate number of spaces having regard to the various requirements of the Good Design Guide, Council's parking policy and an empirical assessment prepared by Grogan Richards.

51. Mr. Gobbo acknowledged an issue as to the appropriateness of the use of Blanche Street and the laneway for ingress/egress and referred to Mr. Grogan's evidence that traffic generation will be low in traffic engineering terms and will have no significant effect on traffic conditions acknowledging that access ways and crossovers are all adequate.

52. Mr. Gobbo claimed his client was prepared to have conditions imposed regarding placement of mirrors at the intersection of the laneway and Market Street, give an undertaking to glaze those dwellings abutting the laneway or alternatively, have conditions limiting use of the laneway after 10pm at night. He advised his client would install an intercom at the entrance to the carpark so that visitors could access the basement level carpark.

53. Mr. Gobbo also called evidence from Mr. Marius Brits concerning the selection of planting, the proposed pavement and landscaping treatment along St Kilda Road, and the landscape design response for the large courtyard.

54. The Tribunal is generally satisfied that the proposed use and development is appropriate for a site which is zoned Business 2, located close to a Mixed Use zone and abutting busy St Kilda Road. We consider that it has responded reasonably well to policies and design requirements in the Port Phillip Planning Scheme. We have some concern about the impact of the fourth level of the main building particularly that section facing Blanche Street. However, we consider that some modification to the building can be made to ameliorate this impact whilst still achieving a suitable design.

55. From an urban design perspective we see no impediment to the development of the larger building, which from most viewing points along St Kilda Road or neighbouring residential streets, will appear as a four storey building. Whilst the development along St Kilda Road has a fifth level, this level is a much smaller, recessive feature and does not add substantially to the visual bulk or overall scale of the development. We think little would be gained by requiring its removal simply to achieve a four storey building especially as there is no specific policy in the Port Phillip Planning Scheme requiring such.

56. It is acknowledged that Clause 22.06 of the Planning Scheme encourages a three storey built form adjacent to public spaces, however the fourth level has been set back from the Blanche Street and St Kilda Road frontages albeit a small amount. We have already expressed our concern about the impact of the fourth level on Blanche Street, and have required it to be set back further, but we are satisfied that the small fourth level setback when viewed in conjunction with the glazed feature in front of balconies, will be a novel yet innovative design treatment.

57. Having regard to the urban character of the western side of St Kilda Road, which is, at best a patchwork of buildings of various shapes and forms, and in many cases unkempt residual development sites, we are satisfied that this building will not only complement the character of the area but make a substantial positive contribution to it.

58. We consider that the southern wall at fourth floor level should be set back at least 3 metres from the Blanche Street road alignment so as to reduce the visual impact on properties opposite. We consider it appropriate to have a more recessive feature particularly opposite those lower scale residential properties to the south. We acknowledge that this would result in the need to reconfigure dwellings 4.01 and 4.02 and this will probably result in the loss of one dwelling. We consider this to be a relatively minor reduction in the overall development but an important change so as to reduce or ameliorate the visual impact of the fourth storey particularly when viewed from houses directly opposite in Blanche Street.

59. We consider the design response to both Blanche Street and St Kilda Road to be appropriate and that the proposed glazed wall is an innovative solution to the treatment of noise from St Kilda Road. Whilst the open space/balconies between the glazed wall and the front of the dwellings will be relatively narrow, we consider this design solution in this location to be appropriate, and to a certain extent, quite bold. We appreciate that the curtain wall will have openable glazing features. We suggest that if this is properly treated and maintained, that this feature will make a positive contribution to the building. We are satisfied that the proposed design treatment for the intersection of Blanche and St Kilda Roads using a three storey masonry wall in a "hard edge" treatment to be appropriate, whether it is of brick or masonry comes down to a matter of design choice by the architect or owner.

60. Similarly we consider the placement of open spaces behind punched holes in walls along St Kilda Road also to be novel yet responsive to various acoustic issues confronting the subject site.

61. During the hearing there were various references to the site being occupied as a serviced apartment building and we agree with Mr. Borelli's evidence that the building could quite easily be converted to serviced apartments with minimal changes to the building. We see nothing wrong with that proposition given the design of the building, the location of the site, and its zoning.

62. We are largely satisfied with the elevation treatment of the Blanche Street building although we consider it appropriate to have the reference to a high stairwell above the roof removed as it is no longer necessary. Similarly the lift plant room should be shown in elevation.

63. We are satisfied that the three storey built form and set backs are appropriate in this location. We see no need to require the building to be set back from the western boundary in accordance with the Good Design Guide because the adjoining building has blank walls facing the subject site. In fact it turns its back on this site. We note part of the Blanche Street building steps up higher than the adjoining building but we consider this is consistent with urban design policy and is an appropriate response to the built form, particularly along the northern side of Blanche Street.

64. We consider that the subject area is of a mixed use nature. We note the adjoining land is zoned Mixed Use and that this area which includes Market Street is really a mixed use area rather than a partial residential area. We acknowledge that various properties on the southern side of Blanche Street are of a much lower, more modest and generally single storey height, although we note there have been recent two storey incursions. We also note the form of recent development further to the west of the subject site (on both sides of Blanche Street) contain contemporary and modern architectural treatments. We consider this area, that is the area between St Kilda Road and Greeves Street to be in transition, and while some of the older remnant parts of the southern side of Blanche Street are more modest in size and scale, we see no compelling argument which would suggest that this should be the only form of development that takes place in this area.

65. We acknowledge the development's relative high density and note there are no specific guidelines in the Port Phillip Planning Scheme which give direction about density in this location. We consider that a site with a relatively large St Kilda Road frontage, with good public transport is capable of achieving such a high density whilst having minimal direct impact on adjoining and nearby properties. We do not consider this to be a conventionally zoned residential area rather it is a mixed area, in transition and it is expected, judging by recent development in the locality that the character of the area will change over time.

66. We are satisfied that the car parking and vehicular access arrangements are generally acceptable.

67. Whilst we would have liked to have seen further exploration of vehicular egress to St Kilda Road, we are satisfied with the ingress/egress to Blanche Street and the single egress to the northern laneway would be acceptable. We do however propose to place a limit on accessibility from the northern laneway between 10pm and 7am on each day in an effort to protect what amenity remains for residents with rooms facing this laneway. Having said this we acknowledge that this laneway is not in very good condition, it requires construction to a higher standard. We can also foresee at least one of the dwellings which abuts the laneway will be redeveloped in the near future given its condition, ownership, zoning and proximity to other commercial/industrial uses.

68. We propose to insert a condition requiring the installation of an intercom at the Blanche Street vehicular entrance so that visitors can utilise the car park if necessary. Having said that, we note there is carparking available in St Kilda Road.

69. We accept the evidence of Mr. Brits and are satisfied that the landscape treatment of the common area on site is appropriate. We have taken on board his recommendations that the trees, particularly along the rear of the Market Street properties, should be 3 - 3.5 metres in height at planting. We have requested these trees be planted at least 1 metre back from the boundary to protect adjoining properties. We accept the Responsible Authority's criticism of the landscaping along St Kilda Road (including the paving treatment for the footpath). We acknowledge this is a matter for the Council to determine rather than the applicant.

70. We acknowledge that the open space provision for each dwelling is relatively small and that one or two dwellings may not have individual balconies/private open space. However we note that the site provides a considerably large north-west facing common open space area with relatively generous planting and hard paved surfaces. We consider this is satisfactory in a development of this nature. We consider the placement of many of the balconies behind the glazed wall to be a novel yet practical response for the urban design imperatives for the site.

71. For the above reasons the Tribunal determines that a permit should be granted subject to conditions.

PLANNING AND ENVIRONMENT LIST PLANNING AND ENVIRONMENT LIST