A18 Pty Ltd v Stonnington CC [2014] VCAT 1015

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

TP-01_B, TP-02_B, TP-03_C, TP-04_D, TP-05_D, TP-06_C, TP-07_D, TP-08_C, TP-09_C, TP-10_D, TP-11_D, TP-12_D, TP-13_B, TP-14, TP-15_C and TP-16_B

1. Pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998, the following persons are joined as part of the party to the proceeding known as Mr I Greenshields and others:

Brian & Ella Talbot, William Grainger & Amanda Mathews, Helen Gilbert, Alex& Lynette Holt, Brendan Downey, Paul & Christine Minogue, John Jennings, Peter Harrison, Linda Mayer, Bill Frost, Paul King, Merrilyn Beadle & Mark Gilfedder, Michael Choi, Jason & Claire Beveridge, Simon & Anne Collins, Diana Summons and Natalie Rolfe-Stuart & Drew Stuart.

1. The decision of the Responsible Authority is affirmed.
2. In permit application 0707/12 no permit is granted.

• Mr R Fairlie, traffic engineer of Ratio Consultants Pty Ltd;
• Mr R Thomson, landscape architect of Habitat;
• Mr D Crowder, town planner of Ratio Consultants Pty Ltd; and
• Mr T Biles, urban designer of Message Consultants Australia Pty Ltd.

Ms T Orrlov, planning consultant of Hansen Partnership

Mr I Greenshields on behalf of himself, L O'Sullivan, G Markov, R Bevridge and others

A 1,216sqm site on the northeast corner of Burke Road and Paxton Street. It contains a single house with a brick substation and right of way adjacent to its east boundary. There are a number of trees and shrubs on the site, of which three will be retained. The site falls about 1.4m from west to east with a cross-fall of about 0.6m.

A three storey apartment building containing 19 apartments with a single level basement containing 20 car spaces accessed via Paxton Street.

Section 77 Planning and Environment Act 1987

General Residential Zone Schedule 7 - Residential Boulevards & Corridors (GRZ7)

Clause 32.08-4 To construct two or more dwellings on a lot in GRZ7

Clause 52.06-3 To reduce the visitor car parking requirement from 3 to 0.

Two interim orders have been issued since the hearing of this matter.

In the order of 8 May 2014, the Responsible Authority was given leave to provide written comments and suggested conditions in response to amended plans tabled by Mr Fairlie at the hearing; and the Applicant was given leave to respond to any suggested conditions.

In the order of 20 June 2014, all parties given leave to provide a written submission about the relevance of the new General Residential Zone to the consideration of the merits of this application.

1. This is an application to review the decision by Stonnington City Council ('the Council') to refuse to grant a permit for a three storey apartment building at 82 Burke Road, Malvern East.
2. The Council agrees this site is suitable for redevelopment, particularly as it is on a street corner with a main road frontage; is large in area; and has no overlay control or topographical constraints. The Council's main concern is the extent and form of development proposed in light of the planning policy guidance, the neighbourhood character, the visual bulk and amenity impacts, landscaping and internal amenity. The residents share these concern and raised other concerns including car parking and traffic.
3. Having considered these concerns, I agree that some aspects of the proposal are not acceptable. Of particular concern is the unacceptable design response of the proposed building to Paxton Street and No. 84 Burke Road. Whilst some design changes were suggested during the hearing, they do not overcome my concerns. Hence, my decision is to refuse to grant a permit.

IS THE TYPE OF RESIDENTIAL DEVELOPMENT OR THE NUMBER OF DWELLINGS PROPOSED ON THIS SITE A RELEVANT PLANNING CONSIDERATION ?

1. Mr Greenshields submits on behalf of the residents that they would prefer townhouses on this site as this is more in keeping with the neighbourhood.
2. The Tribunal's role in deciding this matter is to consider the merits of the type of development that is proposed, being an apartment building. It is not appropriate or necessary to consider an alternative type of residential accommodation on this site. Rather, the planning considerations of the merits of this development must be considered including whether the proposed building form (such as its height, setbacks and appearance) is acceptable.

1. The residents say the number of dwellings is far too great for the site and surrounding streets. Their submission goes on to talk about the number of people to be accommodated in the proposed dwellings with the only pedestrian and vehicular access from Paxton Street. They say this will unnecessarily and unjustifiably burden Paxton Street. The number of dwellings per se is not a reason to refuse this proposal. I agree the pedestrian and vehicle access via Paxton Street will create an additional level of activity in the street. I have no concern about the pedestrian activity. In regard to the vehicular access, a driveway off Paxton Street is not out of character. Whether the access arrangements are safe from a traffic perspective is a matter I will deal with separately later in these reasons.
2. What this all means is that my consideration of the planning merits does not focus upon the type of accommodation or number of dwellings proposed. A primary consideration in this case is whether the proposed form of the development is acceptable having regard to the issues raised by the Council and the residents. Other considerations will include the acceptability of the parking provision and traffic access arrangements.

BALANCING PLANNING POLICY FOR RESIDENTIAL DEVELOPMENT AND NEIGHBOURHOOD CHARACTER

1. The Council submits this is not a site where there is policy support for a development of a scale and form that is completely at odds with the established built form. However, the Council also acknowledges that the local planning policy framework places this site in an incremental change area[2], earmarked for 'medium density residential development'[3]; and that three storey development has some policy support[4]. Hence, while three storey development may be somewhat at odds with the established built form in this neighbourhood[5], local planning policy provides some support for this level of change.
2. This policy support is now recognised in the new General Residential Zone schedule that applies along both sides of Burke Road (GRZ7 - Residential Boulevards & Corridors). GRZ7 allows a maximum building height of 10.5 metres, which enables the construction of a three storey building. Whilst the building height in GRZ7 does not apply to this application[6], it nevertheless provides a clear indication of the extent of change envisaged in the planning scheme for this site and other properties fronting Burke Road.
3. The site and all surrounding land are zoned General Residential[7], which includes in its purpose:

To encourage development that respects the neighbourhood character of the area.

To implement neighbourhood character policy and adopted neighbourhood character guidelines.

To provide a diversity of housing types and moderate housing growth in locations offering good access to services and transport.

1. I am satisfied that this site is in a location that offers good access to services and transport, so this site is suitable for moderate housing growth. The Council says this proposal is not moderate as contemplated by GRZ7, but rather than is an intense response in this location. I am unable to agree with this. Plan Melbourne contains an example of applying the GRZ in Greater Dandenong[8] and explains that it is applied to incremental change areas where lower-scale, medium-density development of 2-3 storeys is preferred. Planning policy in this case says the site is in an incremental change area and GRZ7 provides for three storey development. Further, in an existing neighbourhood with generally 1-2 storey high buildings, a three storey building is an incremental change and a three storey apartment building can be described as moderate housing growth. For all of these reasons, I am satisfied the planning scheme zone and policies provide support for a three storey building on this site.
2. The Council emphasised the change in the GRZ purpose to include the implementation of neighbourhood character policy and adopted guidelines, however it acknowledged that this site is not affected by any such policies or guidelines. Whilst Amendment C175 seeks to implement a neighbourhood character policy, it has not yet reached a stage where it can be considered as a seriously entertained planning proposal. As such, it carries little weight in this case. Hence, for this site, greater weight must be given to the zone purpose that encourages the development to respect the existing neighbourhood character.

RESPECTING NEIGHBOURHOOD CHARACTER DOES NOT PREVENT CHANGE

1. The Understanding Neighbourhood Character general practice note[9] states:

Respecting character does not mean preventing change. The neighbourhood character standard is not intended to result in the replication of existing building stock or stop change.

Neighbourhood character is one of many objectives that must be met. Some areas will see significant changes as a result of new social and economic conditions, changing housing preferences and explicit housing policies. In these areas, it is important that respecting character is not taken too literally, as a new character will emerge in response to these new social and economic conditions.

In simple terms, respect for the character of a neighbourhood means that the development should try to 'fit in'. Depending on the neighbourhood, there are two broad approaches to respecting character:

• respecting the scale and form of surrounding development
• respecting the architectural style of surrounding development.

In deciding whether or not the design response respects the character of the neighbourhood, consider:

• the extent to which it reinforces existing patterns and interactions of elements
• the sensitivity of the character of the neighbourhood to changes in those patterns
• the planning objectives to deal with those changes.

1. Given the planning scheme zone and policies provide support for a level of change along Burke Road. As such, a three storey building on this site is acceptable and the question in this case is whether this proposed three storey building is responsive in an acceptable manner to the existing characteristics of the neighbourhood.

1. The Council highlighted the following characteristics that, having inspected the neighbourhood, I agree with:
   • An arterial road frontage;
   • Leafy streetscapes and buildings from a range of architectural periods;
   • Regular front and side setbacks providing space around buildings and landscape qualities to the streetscapes;
   • Newer houses that complement the form, scale and design detail of older buildings in Paxton Street;
   • Low, visually permeable front fencing in Paxton Street and a greater incidence of higher fencing in Burke Road;
   • A well treed streetscape in Paxton Street comprising mature street trees and private gardens.
2. Council's principal concerns with the design response are its scale and extent being out of character most particularly in Paxton Street; and its failure to complement the landscape quality and character of Paxton Street. The residents say the design is an unsightly monolith with few redeeming features and is not compatible with the architecture and design character of the street.
3. This site has two sensitive interfaces, being the north interface with No. 84 Burke Road and the south interface to Paxton Street. The interfaces with the laneway to the east and Burke Road to the west are less sensitive due to their road frontages.

1. The architectural style and choice of materials is contemporary. As there is a range of architectural styles in this immediate neighbourhood, this design response is acceptable in the Burke Road streetscape. The proposed building is set back 8.9 metres at ground and first floor levels, with framed first floor balconies projecting forward to a setback of 7.3 metres. The top floor is then set back 12.35 metres with the front balcony setback 9.05 metres. I agree with the Council that the projecting first floor balconies are a dominant feature of this elevation, but I also agree with Mr Crowder that they create visual interest in the façade. Overall, the setbacks, wall heights and balconies, including the setback of the top level further behind the lower levels all create an acceptable design response to the Burke Road streetscape.

1. The proposal has a ground floor wall along the majority of the laneway frontage; the first floor wall is set back 1.03 metres; and the top floor is set back 13.57 metres with a balcony set back 8.25 metres from the laneway.
2. I have no concern about the top floor as it has a very generous setback from the laneway, which assists to provide an appropriate transition in building height from three storeys along Burke Road down to two storeys in Paxton Street. The second (top) floor plan has nominated an area within the top floor balcony setback area for "possible" rooftop air conditioning equipment and solar panels. I do not support the inclusion of such plant and equipment in the absence of any detailed elevations showing how this would be integrated into the building design. If, for example, it appeared unsightly or added to the bulk of the building, such a design change may be unacceptable in the Paxton Street streetscape.
3. The first floor plan shows a balcony wrapping around the east side of the building for unit 107. The Applicant and its witnesses agreed this is unnecessary as there are no habitable room apartment windows or doors in the east elevation of this unit and it is a secondary balcony area accessed via a bedroom. Hence, I find the east section of this balcony and the associated overhanging roof should be removed.
4. Subject to the findings I have made above, the laneway elevation is acceptable.

1. Mr Biles acknowledged the proposed building will be a different building form to that which currently exists in Paxton Street. It is a long building measuring about 48 metres at the lower two levels and 30 metres at the top level with setbacks generally of between 2.3 and 4.0 metres. Mr Biles acknowledged the first floor balconies are the main element of articulation in the elevation.
2. I do not find this elevation to be an acceptable design response to the Paxton Street streetscape.
3. First, there are four existing Pin Oak street trees along this frontage. Mr Thomson has endeavoured to plot the extent of canopy on his landscape plan, which suggests there may be some encroachment by the proposed building for the easternmost street tree and for the second street tree (counting from Burke Road). They are part of the established landscape character of Paxton Street and make a significant contribution to the existing neighbourhood character. The Applicant tabled an arboricultural report[10] that describes these trees as mature, of average health, and fair or poor form. The report recommends they be appropriately protected before and during building works, especially their root zones.
4. The street trees have been severely pruned because of existing powerlines, so their canopies are largely growing horizontally. Mr Thomson is of the opinion these trees can be further pruned and trained to grow vertically instead. The Council acknowledged much of northern canopy of these trees is across this site and under common law could be cut back. Hence, the Council does not oppose the pruning of these trees. As such, the Applicant says this is a matter that can be dealt with by permit condition.
5. The Applicant is seeking to utilise these street trees and the additional landscaping in the Paxton Street setback area to soften views of the proposed building in Paxton Street. Given this and the significance of the contribution that the street trees make to the existing neighbourhood character, the extent of pruning that may be required and the impact this may have on the health of some of the street trees is a matter that should form part of the consideration of the acceptability of an apartment building on this site. This is not a matter that should be left to a permit condition with a degree of uncertainty as to what the implications may be for the continued health and viability of some of the trees.
6. Mr Biles gave evidence at the end of the second day of the hearing, after hearing the concerns of the Council and the residents about the presentation of the building in Paxton Street. He began his oral evidence-in-chief by explaining the dilemma in this case as the site slopes and the design of the proposed building has pitched itself from the west end (at RL44) rather than from the east end (at RL43). He said if the building was dropped in height, it "would help". Mr Biles says the building can be dropped 190mm and still accommodate the proposed ramp (albeit with revised gradients). He acknowledged this drop is not significant but "might help", particularly for No. 84 Burke Road to the north.
7. Whilst Mr Biles' suggested changes lessen the presence of the building marginally in Paxton Street, I am not persuaded this change sufficiently addresses the overall presence and bulk of the building. Whilst on the one hand it is reasonable to expect a new building to be situated close to Paxton Street, this closeness needs to be carefully managed through articulation and landscaping. Mr Thomson has endeavoured to incorporate new trees sitting below the street trees, but I am not persuaded the proposed landscaping will be sufficient to address the overall presence and bulk of the new building. Hence, the articulation of the building is equally important in this case.
8. The extent of two storey walls with a few projecting balconies does not achieve an acceptable level of articulation of this elevation. The building length is clearly evident and, when combined with the height and commonality of materials and finishes of the lower two levels, it has a detrimental prominence in Paxton Street. The Council suggested a break in the length of the building may assist in reducing this prominence, and I agree this is an option. However, so too would be further articulation through, for example, having more steps in the building so it moves in and out along the street and/or a greater range of materials either horizontally (each floor level) or vertically (breaking the building into segments). Creating an acceptable level of articulation should involve a consideration of whether a reduction in the size or number of apartments proposed is necessary to achieve an acceptable outcome. Ultimately, it is a matter for the designer to determine how best to achieve a design of lesser prominence in Paxton Street.

1. There are two neighbouring properties that require consideration in regard to amenity impacts, being No. 1 Paxton Street and No. 84 Burke Road. During the hearing, I inspected both properties and then advised the parties of what I saw.

1. No. 1 Paxton Street has two ground level bedroom windows facing the laneway and, hence, this site. One is located near the substation and the other is further south, closer to Paxton Street.
2. No. 1 Paxton Street is concerned about the overlooking from the east facing balconies; the light and amenity impacts because of the proposed building along the laneway; and noise.
3. I have already explained that the eastern section of the first floor secondary balcony of unit 107 would be removed, so any potential for overlooking is removed. The other balcony of unit 107 is setback about 8.7 metres from the east side of the laneway, which means it is more than 9 metres from No. 1's rear west facing bedroom window. The planning scheme does not require overlooking to be prevented, rather overlooking is to be limited. As such, a separation distance of 9 metres or greater is a benchmark by which the planning scheme says overlooking can be said to be limited. In this case, I find the separation distance proposed and the fact that the balcony is oriented to the north rather than the east limits the overlooking potential, and is acceptable.
4. The planning scheme only requires sunlight penetration to be considered for north facing habitable room windows. As such, it is not a requirement to maintain sunlight penetration into the west facing habitable room windows of No. 1 Paxton Street. The planning scheme suggests daylight into existing windows is achieved if a one metre setback and a three square metre light court is provided. In this case, the existing setback of No. 1 Paxton Street from its boundary with the laneway and the width of the laneway achieve the suggested setback and light court. As such, the proximity of the proposed building to No. 1 Paxton Street does not unreasonably impact upon its amenity by way of overlooking or loss of light.
5. It is proposed to have a wall height of 4.4 metres adjacent to the laneway. This is higher than the suggested 3.2 metre wall height in the planning scheme. However, this is acceptable in this case because the wall is adjacent to a laneway; is of a similar (albeit slightly higher) wall height to the existing substation next door; and it creates no unreasonable amenity impacts to No. 1 Paxton Street in terms of overshadowing and overlooking.
6. In regard to noise, the basement car park ramp is facing Paxton Street (to the south) and is well separated from No. 1 Paxton Street. Hence, I have no concerns about vehicular noise. Any residential noise associated with the use of the balcony areas is to be expected (i.e. typical residential noise in a residential area), and is not sufficient reason to refuse a residential development on this site.

1. No. 84 Burke Road contains a two storey house with a large back garden that includes a Black Locust tree about 14 metres high close to this site's northern boundary. The house has ground floor kitchen/dining and living room windows and a first floor bedroom window facing this site.
2. Mrs Yodgee expressed concern that the proposal contains 10 north facing outdoor areas and balconies, which impact upon the south facing living and bedroom areas of her house. Whilst some are screened, the screening combined with the number of outdoor areas and balconies create both visual bulk and noise.
3. In regard to noise from the use of the residential balconies, the findings I made on this issue for No. 1 Paxton Street equally apply to this interface as well.
4. As discussed earlier in these reasons, the building becomes gradually elevated above the natural ground level because of the slope of the land. This means the ground floor apartments (units 003, 005 and 007) are all elevated, so freestanding privacy screens are proposed on this site's side of the common property boundary to a height of up to about 2.5 metres. Mr Crowder says not all of these units are elevated more than 0.8 metres above the ground (which is the trigger point for the suggested requirement for screening in the planning scheme), so a detailed/rigorous analysis of sightlines could be done to determine the extent of screening required.
5. Whilst it is understandably that the proposal wishes to capitalise upon the northern orientation in the design of the apartments, a balance needs to be struck in terms of the overlooking and visual bulk impacts upon No. 84 Burke Road.
6. Whilst the overlooking objective in clause 55 is to limit overlooking, I am not persuaded this is a case where a detailed analysis of the technicalities of overlooking outlined in the relevant standard in the planning scheme will necessarily meet the objective. The fact that, as Mrs Yodgee puts it, there are 10 outdoor areas requires consideration of the combined effect of their potential overlooking, particularly on her principal habitable rooms being the kitchen/dining and living areas. As such, ground floor screening may be necessary in this case even if not technically required.
7. When the screening that is necessary is then considered in combination with the length and height of the northern walls, this can contribute to an unreasonable visual bulk impact. To address this, Mr Biles suggested lowering the building by 190mm in order to get closer to complying with the wall height and set back requirements of clause 55. I am not persuaded this reduction in height is sufficient on its own to achieve an acceptable visual bulk impact.
8. Mr Crowder says the modulation, articulation and planning policy achieves an acceptable outcome in regard to building bulk and amenity. In regard to the modulation and articulation, my findings about the Paxton Street elevation needing greater articulation are also applicable to the north elevation, including the limited variation in setbacks, materials and finishes for the lower two levels. In regard to planning policy, whilst a three storey apartment building may be an acceptable outcome, the design detail needs to respond in an acceptable manner to the particular characteristics of the site and surrounds. I am not persuaded this design responds in an acceptable manner to the amenity of No. 84 Burke Road.
9. Mrs Yodgee advises she has regularly paid arborists to ensure the Black Locust tree is stable and healthy. She hopes the detail of this design means the tree is also safe from harm. The Applicant tabled a letter from an arborist (Mr Galbraith) who I am told inspected the tree by looking over the boundary fence. This letter says the tree protection zone is 9 metres from the trunk centre and the structural root zone is 3.5 metres from the trunk centre. The letter also says the proposed building and its basement are set back 3.0 metres from the boundary and therefore about 3.5 metres from the trunk centre. This encroachment into the TPZ is to be considered major according to the Australian Standard[11], but the letter goes on to say why this is not of concern in this case. This includes expressing an opinion that the tree does not have a long safe useful life expectancy. The recommendation is that there be no excavation within the SRZ, i.e. within 3.5 metres of the trunk centre.
10. I have some concern about the accuracy of the measurement of the trunk centre from the property boundary, particularly as there was no inspection from No. 84 Burke Road. Unfortunately this letter was not provided until the last hearing day so the measurement was not able to be checked during the hearing. Any future planning application for this site should check this dimension, and further arboricultural advice submitted to demonstrate that the tree will not unreasonably decline in health or be unreasonably impacted upon in terms of its safe useful life expectancy. If that means the basement needs to be modified in terms of its position, a new design should provide for this.

1. The proposal provides the number of residential car spaces required by the planning scheme, hence no planning permission is required for this part of the proposal.

1. Planning permission is required to reduce the visitor car parking requirement from three to zero. Mr Fairlie estimates the peak visitor parking demand during weekday business hours will be two car spaces and on evenings and weekends will be three car spaces. Mr Fairlie's opinion is that visitors will typically park in Paxton Street or on the east side of Burke Road. I agree this is likely as it is human nature to want to park close to a destination. I am satisfied that it is appropriate to reduce the visitor car parking in this case as Mr Fairlie's car parking surveys reveal there is ample on-street car parking available immediately around this site for visitors, particularly at peak times in the evenings and on weekends.

1. The basement ramp is about 4.5 metres wide, which means it provides one way access. Within the basement, the car spaces are all accessed off a central aisle. On the east, south and west sides of the aisle are 90 degree car spaces and on the north side of the aisle are parallel spaces. Concern was expressed during the hearing about the suitability of this proposed design.

1. In regard to the basement ramp, Mr Fairlie estimates in the peak hour one vehicle will use it every 10 minutes. I am satisfied that the basement ramp arrangement can work. The ramp is reasonably short and cars accessing the basement will be regular users of it, so they will become familiar with its shared two-way use and the need to give way to vehicles manoeuvring in the basement and using the ramp. I note the Council's senior transport engineer considers the ramp width, access gradients and headroom clearance are satisfactory. Hence, the proposed ramp is acceptable in this case.

1. In regard to the car park layout, Mr Fairlie tabled a VCAT decision[13] that approved a car park containing parallel spaces with a requirement for a turnaround bay with the car park. Mr Fairlie's opinion is that approved layout is very similar to this car park. There are two points to make about this. Firstly, Mr Fairlie did not provide a copy of the approved layout, and, when making a statement that the layouts are similar, it is preferable for all parties and the Tribunal to be able to visualise and ask questions about the similarities. However, secondly, having said this, each case needs to be decided on its own merits. I note the width and size of the East Ivanhoe property and this site appear to be different; the East Ivanhoe property appears to be in a mid-block location; and the East Ivanhoe design catered for both visitor and resident car parking. As such, I am not persuaded the characteristics of that property and that design are directly comparable to this site and this proposal.
2. I would not refuse this proposal because of the car park layout. It is certainly not an ideal layout as evidenced by the comments of the Council's senior transport engineer including that:
   • The car park layout contains some reasonably constrained car spaces, which may impact on their function;
   • The sightline with the convex mirror to the car space (19) next to the basement ramp is constrained, particularly for a reversing vehicle;
   • The parking space (20) sitting partly alongside the parallel space (8) is likely to create an impediment, whether perceived or actual when occupied; and
   • Parking space 3 access is difficult.
3. The functionality of some of the car spaces is dependent upon the availability of the vehicle turnaround area. Mr Fairlie says it should be chevron line marked and signed no stopping. In response to a question during the hearing, Mr Fairlie also said a bollard could be put about 600mm in front of the lift entry for pedestrian safety. Council's senior transport engineer says Mr Fairlie's turning template analysis for a medium sized vehicle (known as a B85 vehicle) show access is available and:

... that the only affected parties will be future residents of the development, this can be considered broadly satisfactory. It should be noted that residents with larger vehicles may experience difficulty accessing these parking bays.

1. As Council's senior transport engineer considers the layout "broadly satisfactory", I am satisfied the layout is acceptable, which is all it needs to be (rather than ideal) under the planning scheme. Having said this, as I have decided to refuse this proposal for other reasons that may necessitate some changes to the building form and consequently the number and/or size of the apartments, I encourage the Applicant to also review the basement layout as part of any new design for this site with a view to improving the car park layout and functionality, where possible.

1. The residents are concerned about pedestrian safety from the proposed driveway; passing difficulties along the Paxton Street frontage of this site; and the queues, waiting times and risk of collision at the Paxton Street and Burke Road intersection.
2. The driveway design incorporates sightlines for vehicles exiting the car park, so pedestrian safety along the footpath at the front of this site is acceptable.
3. Mr Fairlie gave evidence that Paxton Street is 8.5 metres wide. This allows for parking either side of the street and for a vehicle to be able to pass between parked vehicles. The residents described passing difficulties as a current problem. If they are concerned about this, it is a matter for them to take up with the Council in its role as the relevant road authority for Paxton Street. It is up to the Council to decide whether to change or introduce parking restrictions to address traffic safety issues.
4. In regard to traffic safety, it must be remembered that the use of land for residential purposes (including apartments as proposed here) does not require planning permission in the General Residential Zone. Also, no planning permission is required to provide or exceed the required number of residential and visitor car spaces specified in the planning scheme[14]. In this case, planning permission is only required to reduce the provision of visitor car parking on the site itself[15], which arguably lessens the traffic movements generated from this site. In circumstances where no planning permission is required for the residential land use or the proposed residential car parking, it is an inevitable consequence that traffic will be generated by that car parking provision.
5. In regard to the Paxton Street and Burke Road intersection, Mr Fairlie gave evidence that he observed traffic at the intersection between 8am and 9am, and noted 40 vehicles turning right and 36 turning left from Paxton Street. He said the maximum queue in Paxton Street was 4 vehicles for about 5 minutes, but generally the queue length was 2 vehicles. Mr Fairlie says the maximum queue does not reach the proposed driveway entry/exit to this proposal. The Council advised me during the hearing that it was satisfied with the queuing based on Mr Fairlie's evidence. Mr Fairlie is not of the opinion that the intersection is saturated[16] and he explained Paxton Street currently carries between 820 and 900 vehicles per day, which is well within the environmental capacity[17] of the road at 2-3,000 vehicles per day. Hence, I am not persuaded the traffic generated by the proposed car parking will adversely affect the amenity of the locality in terms of the operation of the existing streets.

1. For the above reasons, the decision of the Responsible Authority is affirmed and no permit shall issue.

[1] I have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed by parties that did not appear. I do not recite or refer to all of the contents of those documents in these reasons.

[2] As it is not a designated location where higher densities will be accommodated in the Strategic Framework Plan at clause 21.03.

[4] Clause 21.05-2 says incremental change areas are suitable for multi-unit development of 2-3 storeys

[5] Noting that there are limited examples of three storey development nearby in Burke Road

[6] As there are transitional provisions that apply to applications lodged prior to GRZ7 coming into effect

[7] Albeit the properties behind Burke Road in Paxton and Brunel Streets are with GRZ10 (Garden River & Garden Suburban Precincts) that has a maximum building height of 9 metres.

[10] Aboricultural Report by Richard Forbes dated 4 March 2013

[12] My findings on this aspect of the proposal are based on the dimensioned amended plans tabled by Mr Fairlie during the hearing (TP-05_F, TP-04_E and TP12_E)

[13] 167 East Ivanhoe Pty Ltd v Banyule CC [2013] VCAT 455

[15] Visitor car parking will still generate traffic in the surrounding streets, but not specifically on to and off the site itself.

[16] The traffic engineering technical term to describe the number of vehicles that an intersection can accommodate in its operational functions.

[17] The traffic engineering technical term to describe the number of vehicles that a road/street can accommodate.