Jeremy Gobbo, QC and Emily Porter, Barristers instructed by Tisher Liner FC Law.

Mr Gobbo QC and Ms Porter called expert evidence from Robert Milner (town planner) of Ten Consulting Group and Robert McGauran (architect and urban designer) of McGauran Giannini Soon Pty Ltd.

Susan Brennan, SC Barrister instructed by Moray & Agnew Lawyers.

Ms Brennan SC called expert evidence from Jamie Govenlock (town planner) of Urbis, Mark Sheppard (urban designer) of David Lock and Associates, Charmaine Dunstan (traffic engineer) of Traffix Group and Lindsay Richardson (environmental engineer) of Sustainable Development Consultants.

Construction of a mixed use building of 12 storeys in height, comprising a restaurant on the ground floor and 26 apartments above. Car parking is be provided via a laneway to the rear of the site.

Applications under Section 82 of the Planning and Environment Act 1987.

Clause 32.04-6 to construct more than one dwelling on a lot on land within the Mixed Use Zone.

Clause 43.02-2 to construct a building or construct or carry out works on land affected by the Design and Development Overlay.

Clause 52.06-3 to reduce the standard car parking requirement set out under that Clause.

Clauses 10, 11, 15, 16, 21, 22.06, 32.04, 43.02, 52.06, 52.34, 52.35 and 65.

The land is a narrow allotment with an area of 353 square metres, a width of 7.3 metres and a depth of 51.05 metres. The land has a frontage to Park Street and a rear abuttal to a laneway known as Little Bank Street. The land presently supports a two storey building at the Park Street end of the site that contains a restaurant.

The Tribunal conducted an accompanied inspection of the site and surrounding area on 20 November 2013.

Knox City Council v Tulcany Pty Ltd [2004] VSC 375; Highbury Focus Pty Ltd v Melbourne [2012] VCAT 841; Melbourne Domain Pty Ltd v Melbourne CC [2013] VCAT 1832; San Domenico v Stonnington CC [2013] VCAT 1907.

1. On 15 November 2012 the Port Phillip City Council determined to grant a permit for the proposed development of a 12 storey building on the land at 50 Park Street, South Melbourne (the 'review site'). The proposed building comprises a restaurant on the ground floor and 26 apartments above. Car parking is to be provided by way of stackers, and involve access from the rear laneway, known as Little Bank Street.
2. Two Applications to review the Council's decision to grant a permit have been lodged by different parties, each with an interest in the adjoining land to the west at 52 Park Street, South Melbourne. That adjoining property is presently subject to a construction of a convenience restaurant and 192 apartments in a 16 storey building. The construction is practically completed, such that an Occupancy Permit has been issued, and at the time of our inspection some people had moved into some of the apartments. I am advised that 55 of the recently completed apartments are orientated entirely towards the review site, with a setback of approximately 1.47 metres to the balconies, and 2.95 metres to the apartments themselves. It is the amenity impact on these just completed east-facing apartments, along with the related argument of equitable development rights, that was the primary, and almost exclusive, focus of the hearing.
3. The key issues or questions for determination are:

1. Is the proposed development an appropriate built form response to the site's context? 2. Will there be any unreasonable off-site amenity impacts?

1. Will an appropriate level of internal amenity be achieved?

1. Does the proposal appropriately provide for car parking and traffic movements?
2. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Port Phillip Planning Scheme, I have decided to set aside the Council's decision, and direct that no permit be issued. My reasons follow.

1. Before I turn to the issues in contention I find it appropriate, in a case such as this, to remind myself of my role here, and what overarching guidance is provided to decision makers in the planning sphere. As was clearly articulated in the decision of Knox City Council v Tulcany Pty Ltd [2004] VSC 375, I am not seeking to achieve an ideal outcome. In that decision His Honour Justice Osborn remarked[2]:

The statement that the present outcome "might not be ideal" does not demonstrate an error in law. The planning scheme does not require an ideal outcome as a pre-requisite to a permit. If it did, very few, if any, permits for development would ever be granted and there would be difficult differences of opinion as to whether the outcomes were in fact ideal. The Tribunal is entitled to grant a permit where it is satisfied that the permit will result in a reasonably acceptable outcome having regard to the matters relevant to its decision under the planning scheme.

Reference to the State and Local Planning Policy Frameworks demonstrates that a proposal may potentially be favoured by some policy considerations but opposed by others. In the present case the proposal is favoured by policies relating to housing diversity and social needs to which I shall shortly return. The goal of the State Planning Policy Framework is expressly stated in terms that recognised decision makers must address the question of whether outcomes are acceptable in terms of "net community benefit". Clause 11.02 provides:

"The State Planning Policy Framework seeks to ensure that the objectives of planning in Victoria (as set out in Section 4 of the Planning and Environment Act 1987) are fostered through appropriate land use and development planning policies and practices which integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development." (My emphasis)

The concept of net community benefit is not one of ideal outcomes, but of outcomes which result in a net benefit to the community assessed within a policy framework by reference to both their benefits and disbenefits.

1. The reference in Clause 11.02 referred to by Justice Osborn is now found at Clause 10.02 of the Port Phillip Planning Scheme, but otherwise remains unchanged. It is now joined by a similar statement at Clause 10.03 under the heading of integrated decision making.

Planning authorities and responsible authorities should endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.

1. My task therefore is to determine whether the proposal before me achieves a net community benefit, and a reasonably acceptable outcome, noting that there may be associated benefits and disbenefits.

How have other Tribunal decisions approached this type of issue?

1. During the course of the hearing I was informed as to how the issue of the ongoing amenity of existing poorly designed apartment buildings had been approached in other recent Tribunal decisions. As this is an issue that is arising more and more, it is appropriate and helpful to explore the more relevant decisions.
2. In the matter of Highbury Focus Pty Ltd v Melbourne[4] the Tribunal considered a proposed 35 storey building adjacent to an apartment building in which there were a number of south facing apartments built very close to the southern boundary of that adjoining site. A plan and diagram of the relationship between the existing and proposed buildings in that case can be found following paragraph 25 of the decision. In relation to the existing apartment building the Tribunal remarked:[5]

To the north of the subject land is Wills Court, a 25 storey residential building. This building is built to the northern boundary of the subject land. Midway along the south facade of the Wills Court building is a 2.6 metre x 5.4 metres[3] light court. 48 small one bedroom apartments face on to this light court, two per level.

From level 1 to level 20 the window facing onto this light court is the sole source of natural light and ventilation for these apartments. The equivalent apartments in the upper five levels of the building have the benefit of a large south facing window built into the south boundary wall of the building.

The fact that these apartments were approved solely reliant on this inadequate lightwell for light and ventilation is a serious failure of the planning system. It is apparent that when the Wills Court building was approved it was anticipated that a building of similar scale could possibly be constructed on the subject land. The decision to approve these dwellings completely disregarded this possibility. However, the fact that these apartments exist is the relevant consideration. While the residents of these apartments cannot reasonably expect that no building will be constructed on the subject land, in our view their already compromised access to light and ventilation should not be further compromised.

1. In the matter of Melbourne Domain Pty Ltd v Melbourne CC[6] the Tribunal, in considering a proposed 36 storey building in the Mixed Use Zone, remarked:[7]

The reduction in size of the allotment is only problematic in that it reduces the area available to the applicant to achieve an appropriate separation between the proposal and already built nearby towers, whilst not ignoring any future development to the immediate east. Consideration of the affect of the proposal on Concept Blue or 27-39 McKenzie Street is brought into sharp focus by the seeming disregard of each of these buildings in ensuring the preservation of its own amenity over time.

The two areas of blank wall along the western boundary of Concept Blue presented an acceptable level of equity for the development of the adjoining site - as at that time the allotment had not been subdivided and was thus less constrained. However, the dimensions of the lightwell imposed a considerable restraint on any development, as even had the current proposal reflected the 3 metre dimension of the existing lightwell, the amenity of the 17 rear apartments whose only outlook is south into the lightwell and the bedrooms which face east at the higher levels would have been totally inadequate. The apartments which face north onto the lightwell have an alternative outlook onto La Trobe Street.

We adopt the Tribunal's observation in Hightbury Focus Pty Ltd at [18] noting however that the development on Wills Street was within the Capital City Zone and the review site is in an area outside it, in a zone where a higher level of amenity is expected. The Tribunal said:

The fact that these apartments were approved solely reliant on this inadequate light well for light and ventilation is a serious failure of the planning system. It is apparent that when the Wills Court building was approved it was anticipated that a building of similar scale could possibly be constructed on the subject Subject Site. The decision that these apartments exist is the relevant consideration. While the residents of these apartments cannot reasonably expect that no building will be constructed on the subject Subject Site, in our view their already compromised access to light and ventilation should not be further compromised.

We accept the applicant's assertion that in this case the provision of an additional 7 metre separation in line with the Concept Blue lightwell is a more than acceptable response which also preserves an outlook to the southeast from the upper levels. Further, during the hearing the applicant offered a further 2.6 metre setback of the west wall of the car park on Level 4 adjacent to the lightwell. This amendment should be incorporated in any subsequent proposal for the site.

1. The decision of San Domenico v Stonnington CC[8] took a different approach in relation to a proposed five storey building, where the Tribunal remarked:[9]

The only potential for unacceptable overshadowing is to the south to the dwellings in the Longford Apartments. This matter was subject to considerable discussion and revised shadow diagrams were prepared reflecting the correct floor levels of the Longford Apartments. I consider that the substituted plans with additional southern boundary setbacks have made a significant improvement to the amount of shadowing compared to the plans considered by Council. Based on the revised shadow assessment, only 3 of the 18 north facing apartments will not receive sunlight at the equinox. In other circumstances that may not be acceptable but this is a case that raises the concept of equitable development - a matter raised by Mr Biles on page 4 in his written evidence. The Longford Apartments have been built right up to the laneway boundary without any attempt to provide setbacks on that site to safeguard amenity should the review site or other nearby sites be redeveloped for taller buildings. I agree with Mr Townshend that the location within an activity centre and in a Business 1 Zone also influences what might be deemed reasonable or acceptable amenity expectations. I consider it unreasonable that the review site should bear 'the cost' of safeguarding the residential amenity of a development where no attempt has been made to provide some protection itself through boundary setbacks.

1. These decisions reflect the tensions that have occurred as to how to address situations where existing developments borrow amenity from adjoining properties, and thereby unreasonably impact on equitable development rights.

Is the proposed development an appropriate built form response to the site's context?

1. Ms Brennan for the permit applicant submitted that the existing development at 52 Park Street was an example of a development that did not sufficiently provide for its own future amenity within its own site, and therefore should not be 'rewarded' by restricting development on surrounding land. Instead Ms Brennan encouraged myself to send a clear message to the development community that the planning system will not protect the amenity of those apartment developments that do not provide for their own amenity within their own title boundaries.
2. Ms Brennan also submitted that what is at stake here is one of the objectives of planning in Victoria, as set out in Section 4(1)(a) of the Planning and Environment Act 1987:

to provide for the fair, orderly, economic and sustainable use, and development of land

1. Ms Brennan submitted that it was not fair to punish the owner of the review site, for the 'sins' of the development process at 52 Park Street.
2. These submissions were supported by the evidence of Mr Sheppard, Mr Govenlock and Mr Richardson. Mr Sheppard conceded that ideally a wider space between two buildings of this height is preferred for amenity reasons. However he defended the proposal as being appropriate in this substantial growth area, given the existing and likely future controls under the Design and Development Overlay. He also defended the proposed setbacks as being a reasonable contribution to the space between buildings given the setback at 52 Park Street, and also given the need to facilitate an appropriate development of the review site. Mr Sheppard expressed the view that the anticipated amenity impacts to the 52 Park Street apartments were reasonable and appropriate. In forming this opinion Mr Sheppard was informed by a comparative analysis of the shadows of the proposed building on the review site, with the likely shadows from other development scenarios on the review site and that further to the east.
3. Mr Govenlock defended the proposed setback and height as contributing to an acceptable amenity outcome. He noted that ideally the development at 52 Park Street would have a larger setback, to ensure an appropriate amenity outcome. However he opined that as the review site has the same planning context and thus development opportunity as the neighbouring site, that a reciprocal setback was justified. This he says represents an appropriate amenity outcome as the owners of the completed development at 52 Park Street must have reasonably expected a similar development to occur on the review site.
4. Mr Govenlock went on to assess the actual amenity impacts in terms of shadows, daylight, overlooking and visual bulk. In each case he considered that the amenity outcomes for the apartments at 52 Park Street would be appropriate in the context of a substantial growth area.
5. Mr Richardson provided specific expert evidence as to the existing and future daylight levels to be enjoyed in the existing apartments at 52 Park Street. It is Mr Richardson's evidence that while the amount of daylight will be reduced, that an appropriate level will still be maintained after the proposed development of the review site.
6. Ms Bisucci for the Council submitted that the poor design of the apartments at 52 Park Street was a decision by that developer that should not prevent development on the review site. Ms Bisucci defends the amenity impacts, which she submits are reasonable, on the basis that this development must be a reasonable expectation for the review site following the development at 52 Park Street.

1. All of the parties and experts that appeared before me were universal in their identification of this precinct as one that draws significant support from the Port Phillip Planning Scheme for the establishment of substantial built form. Where such a matter is in agreement it is easy to gloss over it and go straight to the matters in debate. However in this dispute it is important to reflect on the degree to which large scale development is supported on the review site, as it is an important factor in a net community benefit analysis.
2. The site is conveniently located in relation to a wide range of services and facilities, and is within an easy walking distance of the Domain Tram Interchange. As such it is a location that both State and Local Policy would identify as being an appropriate location for the achievement of urban consolidation.
3. Under the Council's Municipal Strategic Statement, the review site has been identified as a Substantial residential growth area, which are described as:

Strategically appropriate locations for higher density residential development (being proximate to major activity centres and / or the PPTN or within the Fishermans Bend Urban Renewal Area) which provide new housing opportunities as part of the renewal of precincts and large sites. They offer the potential for more intensive development through the creation of a new built form character.

1. It is clear that the Council's MSS intends for this precinct to be developed at a level of intensity not surpassed elsewhere in the municipality.
2. The next layer of planning guidance is found within the zone and overlay controls that apply to the land. The site is within a Mixed Use Zone which, while being a residential zone and therefore a locality where residential amenity needs to be protected, is also a zone where the purposes include to provide for housing at higher densities. The land is also covered by a Design and Development Overlay, which anticipates significant development up to the mandatory height limit of 35 metres.
3. Having regard to this range of guidance from the Port Phillip Planning Scheme, it is clear that this location, including the review site, has been earmarked as appropriate for a significant scale of development. More to the point, it can be argued that to deny a certain scale of development would be counter to these policies, and contrary to the broad planning objectives of achieving urban consolidation in appropriate locations.
4. Of course, planning is rarely as simple as identify one policy theme and making a decision in respect of it. Planning policy seeks to achieve a variety of objectives, and often those objectives compete with one another, or pull the decision maker in different directions. In this case the key policy theme that argues against the grant of a permit is that which seeks to protect residential amenity. This policy theme can be identified from the following policy references within the Port Phillip Planning Scheme:

Ensure that the reasonable expectations of amenity for existing residential uses are maintained, including privacy, access to sunlight and adequate open space.[10]

Ensure new development does not unreasonably affect the amenity of adjoining properties by way of overshadowing, privacy, or visual bulk.

Ensure new development does not unreasonably affect the environmental performance of adjoining properties (e.g. overshadowing of solar panels).[11]

Ensure new development does not adversely affect the environmental performance of adjoining properties (e.g. overshadowing of solar panels)

Require that new private or communal open space areas receive a minimum of four hours of sunlight between the hours of 9.00a.m. and 3.00p.m. on 22 September (the equinox).

Ensure that solar access to existing habitable rooms and private open space of neighbouring residential properties is not unreasonably affected.

Ensure that existing habitable room windows and private open space areas of neighbouring residential properties are protected from additional direct overlooking through appropriate siting, setbacks, building articulation and screening devices.

Protect the occupants of existing and new buildings from external noise through appropriate acoustic building treatment (such as double glazing), and through the siting of mechanical equipment and open space areas.[12]

1. This policy framework informs the analysis that follows.

1. The site adjoining the review site to the west has very recently been developed with a 16 storey apartment building. By very recently I note that the planning permit was granted in November 2010, and the Occupancy Permit issued a few weeks prior to this hearing. The fourth to fifteenth storeys of this building is developed with either five or six apartments to each floor with entirely an eastern aspect, that is towards the side boundary shared with the review site. These apartments are setback 2.95 metres from the western boundary of the review site. On eleven of these twelve floors these apartments have balconies that extend to within 1.47 metres of the western boundary of the review site, on the fourth floor the balconies extend to the boundary above the three level podium. The sixteenth storey contains communal facilities including communal open space.
2. The design response for the review site proposes a building that is built to its western boundary on its fourth storey, and above that is set back 1.478 metres to its overall height of twelve storeys. The proposal does what it can to turn away from the completed development at 52 Park Street. Balconies are proposed to be located at the northern and southern end of the building, where five metre setbacks are proposed at either end to provide for solar and daylight access, and the street setback required under the Design and Development Overlay. Four bedrooms will have windows facing the western boundary on each level, except the fourth level where a light court is provided to two one bedroom apartments.
3. The upshot of the design of both sites is that, above the fourth level, the proposed development will be within 2.95 metres of the balconies and 4.42 metres of the living room windows of the east facing apartments. As a result a number of apartments within the development at 52 Park Street will be significantly impacted by the proposed development on the review site. Those impacts include a loss of outlook, loss of daylight and sunlight, a sense of visual bulk or enclosure from the proposed building, and potentially some privacy impacts from having neighbours so close to the existing balcony spaces at 52 Park Street.

1. The western wall of the proposed development facing the apartments at 52 Park Street will be significant in size. It has a length (from north to south) of approximately 38 metres, and a height above the adjacent three storey podium of just over 26 metres. When setback 2.95 metres from a balcony, or on the edge of the adjacent fourth storey balconies, a wall of these dimensions at this proximity will appear quite large and imposing. Consideration of the view from a low level apartment may not be reasonable given that such low level apartments in high density redevelopment precincts cannot expect a high level of amenity. However even a mid level apartment, positioned centrally on the 8th storey at 52 Park Street, will still be faced with a view to a wall that extends 15 metres both to the north and the south of the end of the balcony, and nearly 15 metres above the balcony floor level. A high sense of enclosure will still occur to these mid level apartments. They will also have a very limited outlook.
2. Such mid level apartments will also receive next to no sunlight access at the equinox, according to the shadow diagrams attached to Mr Sheppard's evidence statement. During the course of the hearing, I asked Mr Sheppard to explore with me what an apartment on the ninth storey will receive by way of sunlight access at the equinox. The upshot of that analysis is that just a slither of sunlight will access the balcony floor at around 1.00pm. In comparison a development which is setback 4.5 metres from the western boundary of the review site will provide sunlight access from just after 11.00am, until around 1.00pm, to an apartment on the ninth storey. While this is still a low level of sunlight access, the impact of providing a greater setback for these mid level apartments is, in my view, significant. While I acknowledge that a 4.5 metre setback cannot be achieved on this 7.3 metre wide development site, it could be achieved if the review site were consolidated with that to the east. That is a matter to which I will return.
3. Mr Richardson gave evidence as to the daylight levels that will be experienced in the east facing apartments at 52 Park Street. That evidence addresses both the existing level of daylight, and that to be experienced after the proposed development. The evidence provided an analysis of the 'daylight factor' to be experienced across the various living areas at levels 3, 5, 8 and 10. These levels were chosen to be modelled as indicative examples of the apartments at different levels of the building at 52 Park Street.
4. The daylight factor is a percentage of the available outdoor daylight that will be experienced at floor level at a certain point. As such, while the daylight factor is constant in different weather conditions, the amount of daylight or the lux level that eventuates, will depend on the lux level of the daylight in the surrounding outdoor environment at any particular hour of any day. Different organisations have established standards for what are considered by them to be appropriate daylight factors in apartment developments. None of these standards are found in the Port Phillip Planning Scheme, nor adopted by State or this local government, so I am not bound by them. Further I was not advised as to how the standards were arrived at, so I am not persuaded that they should be given significant weight.
5. The Sustainable Design Assessment in the Planning Process Indoor Environment Quality guidelines states that best practice is defined by 0.5% daylight factor for bedrooms and 1% for living rooms, including kitchens. Mr Richardson expresses the opinion that this document should be used as a guide to minimum standards, but not define best practice as the daylight factors used are too low. The Green Building Council of Australia considers best practice to be a daylight factor of 2% across a living room. Mr Richardson has adopted this as an appropriate standard, to be applied to at least 90% of the floor area of a living room, noting that the corners of a living room away from a window are sometimes difficult to light to an appropriate daylight level.
6. Mr Richardson presented his findings in a number of ways. Firstly in his evidence he provided a matrix of daylight factors as 'spot levels' across the various living areas assessed. While this is the most accurate form of assessment, the presentation of a variety of numbers in a tight grid across an area is in part overwhelming, and difficult to accurately assess. Secondly, upon my request, he provided average daylight factors across each of the assessed living areas. I agree however with Mr Richardson that the use of such averages can be misleading if a daylight factor is particularly bright right next to a window, but particularly dull in other parts of the living area.
7. The third way that the data was presented I found particularly helpful. This was done by way of a percentage of each living area which are above what Mr Richardson considers to be best practice, being a daylight factor of 2%. The kitchens when located at the far end of the apartments away from the balconies were not included in this assessment. That is appropriate given that these kitchens do not rely on direct access to daylight at present, and would clearly rely on artificial lighting for any food preparation or cooking activities. The following table sets out the results as provided by Mr Richardson.

% of living area receiving 2% daylight factor presently.

% of living area receiving 2% daylight factor after development.

1. This analysis shows that there will be a noticeable, and one might say significant, difference between the amount of the living rooms achieving Mr Richardson's adopted best practice daylight standard before and after this proposed development. In addition to the amount of floorspace falling under the 2% daylight factor, the matrix of spot levels provided in the evidence demonstrates that the darker areas of living areas will become more dark, and the areas receiving a good amount of daylight will now receive less daylight. Overall the quality and amount of daylight to be experienced will noticeably decrease.
2. In some ways, that is an outcome that is to be expected. The east facing apartments at 52 Park Street currently enjoy an aspect or outlook across a low building on the review site, as well those sites further east to Wells Street. That will not be the situation in the medium to long term, with some taller buildings reasonably anticipated to be built to the east of 52 Park Street.
3. At this stage I have insufficient information to analyse whether the extent of loss of daylight is reasonable or not. In particular I am unsure whether the reduction in daylight factor predicted is reasonable in a context such as this, where ultimately some form of high building can be expected at some distance to the east of these existing apartments at 52 Park Street. In this matter, some further evidence from Mr Richardson would have been useful, demonstrating the impact on the daylight factor in these apartments under different development scenarios, with different setbacks. For example, would the impacts on daylight be substantially different if the proposed development had a 4.5 metre side boundary setback, as opposed to the proposed 1.478 metre setback?
4. What I can safely conclude from the evidence provided is that the proposed development on the review site will have an appreciable impact on the daylight received by the east facing apartments at 52 Park Street. In particular I am concerned by the change that will occur to the apartments on levels 3, 5 and 8, which will experience a marked reduction in the amount of the living area receiving Mr Richardson's adopted best practice daylight factor, as well as a general decrease of the level of daylight access across the affected living areas.
5. In the end, given the absence of a differential analysis of different development proposals, all I can conclude is that the daylight to be enjoyed by a number of these apartments will be noticeably less as a result of the proposed development.
6. The final area of concern raised in relation to amenity impacts was the acoustic and visual privacy between the two developments. The application proposes the positioning of four bedroom windows within the western elevation, to be located some 1.478 metres from a series of balconies. Mr McGauran in particular was critical of the potential overlooking from these windows, and the intrusion into acoustic privacy that would result. Firstly I find that there are numerous ways to ensure that overlooking can be addressed, and I am satisfied that a technique such as a full height obscure glazing would be sufficient in this instance.
7. Secondly, I agree with Mr McGauran that there is likely to be some acoustic impact between the apartments, particularly on a warm night when it might be desirable to open the bedroom windows. Although they are not marked as being openable on the plans, I would regard such an ability as being a minimum requirement for these bedrooms. While such an acoustic impact will benefit from some increase in setback, I am not convinced that an extra 3 or so metres of setback, as was advanced as one option, would necessarily achieve a much improved acoustic outcome for these spaces, particularly when bedroom windows are opened on a warm night. In the end I find that the impacts on acoustic amenity to these spaces to be just part and parcel of living in a high density urban environment.
8. Having regard to this analysis, I find that the existing apartments at 52 Park Street will have their existing amenity significantly compromised by the proposed development on the review site. I acknowledge that some impact on amenity is a necessary by product of developing sites within an area such as this which is identified for substantial change and higher density housing to 35 metre high forms. However I find in this case that the setback of 1.478 metres proposed from the western boundary of the review site causes amenity impacts that are, when combined, significant and unreasonable.
9. I have considered whether these off-site amenity impacts can be offset by the sizeable communal facilities available to 52 Park Street. I had the opportunity to inspect these facilities on our accompanied inspection. While the communal facilities were still being completed, they are extensive, including a large lounge area, a kitchen and dining room for dinner parties, a theatre, a gymnasium and a very large deck area to all boundaries. This communal area certainly has the ability to provide a quality recreation area for the occupants of the affected apartments at 52 Park Street.
10. In the end however I am not persuaded that these communal facilites can offset all of the impacts that would result from the visual bulk, sense of enclosure, and loss of solar and daylight access as a result of the proposed development on the review site.
11. Further, these amenity impacts need to be assessed in the context of the location of the review site within a Mixed Use Zone. While many areas to be developed to 35 or so metres in height may be found in a Capital City Zone (as was the case in the Highbury Focus decision or in Southbank), in this case the review site and surrounding land is included in a Mixed Use Zone. This zone is one of a suite of residential zones, where successive Tribunals have determined that residential amenity needs to be protected to a higher degree than in commercial zones. As such I conclude that while this area has been identified as one in which higher density development should be encouraged, it is also to occur in a manner which maintains, to a certain standard, residential amenity. This is supported by the emphasis placed on residential amenity in the Local Planning Policy Framework of the Port Phillip Planning Scheme, as evidenced by the policy statements I have repeated following paragraph 28 of this decision. For the reasons already set out, I find that an appropriate level of residential amenity is not maintained here for the residents of the east facing apartments at 52 Park Street.

1. Ms Brennan is correct in identifying that these amenity impacts are partly a result of the failure of the development at 52 Park Street to provide for its own amenity within the boundaries of its own site. However I am not persuaded by Ms Brennan's submission that this failure should effectively be ignored, and that the proposal for the review site be assessed on its own merits, regardless of the amenity impacts on the existing adjacent development. I am not persuaded by this submission for the following reasons.
2. Firstly, while the development at 52 Park Street is a poor choice of design by its design and development team, it is also a poor design that has very recently been facilitated by the planning system. That is, this proposal was scrutinised and considered very thoroughly by the Responsible Authority, as evidenced by the size of their Council report, and supported on its planning merits. More to the point, this is not a development that was considered and approved some years ago when we may not have had the benefit of modern day thinking about these matters. The fact is that this proposal was considered and approved very recently, in late 2010, under a planning framework that largely survives today. It is therefore unreasonable, in my opinion, for another part of the planning system, that is this Tribunal, to now say it was a bad design, and therefore does not deserve protection. It is that kind of approach that will repeat inappropriate planning decisions, and make unfortunate planning outcomes worse than they already are. I do not endorse that as the role of this Tribunal.
3. Secondly, even if the development at 52 Park Street had been setback appropriately, which most of the experts appearing before me agreed would have required around a 4.5 metre setback, I would still have doubts as to whether the proposed 1.478 metre setback proposed for the review site would have been sufficient on amenity grounds. Such a setback would still create significant amenity impacts on the east facing apartments at 52 Park Street.
4. Thirdly, while I acknowledge that the development at 52 Park Street does not provide for its own amenity within its boundaries, that is a relatively common approach in such strategic locations identified for higher density housing. During the course of the hearing, I was referred to standards which apply in other areas seeking appropriate setbacks between tower elements, ranging from 9.0 to 20 metres. In those areas, such setbacks are not sought to be provided entirely on the one site, but rather are sought to be provided equally on adjoining sites, thus providing, on completion, an appropriate setback. Such setbacks are often sought for urban design reasons, as well as on privacy and amenity grounds. However they are sought on the expectation that a setback within one development site alone will not secure its full amenity, but rather that developments will benefit from setbacks on their own sites, and likewise on adjoining properties. I note that the proposed development on the review site has taken a similar approach, with very small light courts proposed along its eastern boundary, which it is hoped the adjoining property to the east will match to achieve an appropriate level of daylight penetration.
5. The fact that this proposal does not provide for its own amenity within its own boundaries therefore is not an unreasonable outcome of itself. Rather the issue is the extent to which it relies on a sympathetic design on the review site.
6. There are a number of other submissions and matters that I also need to address. Ms Brennan made submissions as to what constitutes equitable development rights, and questioned whether the development at 52 Park Street allowed an equitable development to occur on the review site. I agree with the starting point expressed by Ms Brennan that each site in a development precinct with identical planning controls should have an equitable opportunity to realise its development potential. However I do not agree that this will result in equality across all sites. That is because very few sites have an equal development potential to begin with. In the case of the review site, its narrow width of 7.3 metres, combined with a need to provide for equitable development of adjoining sites, is a very real factor limiting its potential for development. At the very least it limits the potential for the review site to be developed to an equal height, or an equal density, of those adjoining properties which are much larger in land area. I am not persuaded that even if this site was the first developed in this precinct, that it could be developed to 12 storeys in height in a manner that proves equitable for the adjoining properties.
7. That concern of mine is highlighted by the proposed light courts to the western boundary of the review site. These light courts service bedrooms at the second, third and fourth storeys, and are a secondary source of light to the apartments which each face either the front or the rear of the site. However these light courts are the only source of daylight to these bedrooms. The light courts measure some 1.2 metres deep by 2.4 metres wide. Both Mr Sheppard and Mr Govenlock were of the view that they allowed for an equitable development in that the adjoining site to the east need only match these light court dimensions to achieve an appropriate daylighting outcome to these bedrooms.
8. I have my doubt as to how much daylight would pass down an eleven storey high lightwell measuring some 2.4 metres square, or 5.76 square metres. Indeed I imagine that a vary low level of daylight would be experienced to the bedroom of the apartment on level 1. I compare this light well with the one provided on the western side of the development at 52 Park Street, which measures some 3.0m by 5.6m, or some 16.8 square metres without any contribution from a future development on the adjoining property. In my view the light courts provided for the lower level bedrooms on the eastern side of the review site are inadequate, and would necessitate the provision of a larger area on the adjoining property to the east as part of a future development of that site. In my view that is not an equitable outcome, either.

Objectives of planning in Victoria and net community benefit

1. As previously summarised, Ms Brennan submitted that the outcome for the review site was not consistent with the objectives of planning in Victoria, which seek to provide for the fair and orderly development of land. I agree that the burden the development of 52 Park Street has placed on the review site is not particularly fair. However I also do not consider it fair to belittle the role of the planning system in creating these apartments, and thus produce unacceptable amenity outcomes for the new occupants of these apartments. I also consider that the development of a 12 storey building on the review site, as presently proposed, is not overly fair for the equitable development of land further to the east.
2. I also note that the objectives of planning in Victoria also seek:

to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria

1. In my view a pleasant living environment would not prevail for the occupants of the east facing apartments at 52 Park Street if this development on the review site were allowed. I understand that is as much the fault of the design of the development at 52 Park Street as it is of the proposed development on the review site. The fact is that there are two developments here, one built and one proposed, which each do not achieve appropriate setbacks from their side boundaries. However only one of these two buildings are before me in terms of their planning permit approval. And I do not consider it appropriate to multiply or compound the poor planning decision already made in respect of 52 Park Street, by making another poor decision to approve a development with inadequate setbacks on the review site.
2. At the outset of these reasons I identified my task of assessing whether the proposal will achieve a net community benefit. That is an important analysis as, despite its clear failings, this is a proposal which does achieve compliance with a range of planning objectives. The benefits associated with this development include:

1. The clear achievement of increased housing in a location where it could not be much more comprehensively supported by policy, a zone and an overlay; 2. The achievement of more housing diversity and affordability in a city that still predominantly overly relies on single detached housing;

1. The placement of more housing in a location richly serviced by public transport;

1. The presentation of an attractive piece of architecture as viewed from the public realm; 2. The provision of convenient car parking facilities from a rear laneway; 3. The provision of jobs during the construction process; 4. The updating of an existing restaurant into a modern facility, in a manner that achieves a level of activitation of the public realm.
2. These benefits are not insubstantial, and indeed go to the core of some of the key facets of planning policy at both a State and local level. On the disbenefit side of the equation is the significant amenity impact that will result to 47 one and two bedrooms apartments across levels 3-11 at 52 Park Street. That is what I regard as a significant disbenefit. I also list on this side of the ledger the small light courts for the bedrooms on the lower levels on the eastern side of the proposed development, and the potential impact this may have on the equitable development opportunity for land further to the east.
3. In my view the disbenefits, particularly the amenity impacts to 47 existing apartments which I find to be entirely unreasonable and inappropriate, weigh so heavily that a net community benefit is not achieved. I therefore cannot support the grant of a permit. Given my findings on this matter, I do not need to address the other issues which were in dispute.

1. There are two other matters which were raised with me during the course of the hearing. I have ultimately decided to give these matters little weight, however they do give me some comfort that, in refusing to grant a permit for the proposed development, I will potentially be supported by future planning controls and strategies. The first of those matters is the proposed Amendment C107 to the Port Phillip Planning Scheme. This amendment proposes to update the Design and Development Overlay, with that which currently applies to the land having an expiry date of 20 January 2014.
2. The Amendment is currently awaiting authorisation, and is yet to be exhibited. It is therefore a matter to which I can give little weight. However it is interesting to note that the Amendment seeks to increase the potential building heights within this precinct while also mandating a 4.5 metre side setback. While I acknowledge that the side setbacks may vary, and may not be mandatory when they are introduced, the fact that strategically the Council is identifying the need for more consistent side setbacks to tower elements in some small way confirms in my mind that larger setbacks are warranted in this situation that is before me. Of course that can probably not be achieved on the review site alone. It will require the review site to be consolidated with the site to the east to achieve a larger development site capable of providing appropriate side setbacks.
3. The second matter that I have given little weight to is the guidance provided regarding the internal amenity of apartment buildings in Plan Melbourne. Initiative 2.1.4 identifies that there are current concerns with the standard of amenity in residential apartments, and a need to improve those standards. Of course, Plan Melbourne is at this stage in draft form during a period of final comment from the public. However it is interesting that the issue of the standard of amenity in apartment development has been identified as an issue facing Melbourne, one about which some actions are proposed.

1. In part I sympathise with the permit applicant having to address what everyone in this dispute agrees is a poor design outcome at 52 Park Street. However that context is only part of the reason why the proposal before me has failed to receive my support. Even if the development at 52 Park Street did not exist, I would have significant concerns with the setbacks proposed to both side boundaries, and whether this development provides for the reasonable development opportunity of adjoining properties. This is a precinct that is identified for development of a significant scale, and yet being a Mixed Use Zone still needs to provide for a reasonable level of residential amenity. In this case I am not persuaded that a narrow site such as the review site can achieve both of these objectives, in relation to the proposed 12 storey building, without needing to contemplate consolidation with the adjoining land to the east.
2. For the forgoing reasons the decision of the Responsible Authority will be set aside, and no permit granted.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[4] [2012] VCAT 841.

[6] [2013] VCAT 1832.

[8] [2013] VCAT 1907