A. The application for review was amended by consent to add the word "Ltd" to complete the name of the applicant company. The permit application was amended to substitute amended plans being the plans marked as exhibit P1 at the hearing. This amendment was made by consent.

B. This application for review is granted. A permit is granted for a four storey residential apartment building over a basement carpark in accordance with the endorsed plans provided for in the conditions below which are to be the conditions in the permit:

1 Before the development starts modified plans are to be submitted to and approved by the responsible authority. Such plans are to be drawn to scale with dimensions and three copies are to be submitted. When approved the plans will be endorsed as evidence of their approval and will then be the endorsed plans in relation to this permit.

The plans must be generally in accordance with the plans marked as Exhibit P1 at the hearing before the Victorian Civil and Administrative Tribunal of planning application for review P241/2006 but modified as necessary to show:

(a)

the floor type to be constructed and finished floor levels to AHD;

(b)

all wall heights above ground level to be nominated on the plans;

(c) all paving above the basement except for driveways to be permeable with details of the permeability of such paving to be specified;

(d)

a schedule of all external materials and finishes to be provided showing the materials, colour (including two colour samples) and finish of all external walls, roof, fascias, window frames and paving (including car park surfacing);

(e)

the proposed landscape treatment for the site including the existing and proposed species;

(f)

all plant and equipment (including air conditioning units, heating units, hot water systems) which is proposed to be located externally must be identified with such equipment to be located away from bedrooms of adjoining properties;

(g)

the headroom clearance for the basement car park to be 2.3 metres high;

(h)

all columns to have a 300-750mm setback from the parking aisle;

(i)

the provision of at least two (2) disabled car spaces to be provided and the location to be revised to occupy the positions shown on the revised plans allocated to car spaces 117-121;

(j)

the plans to show all distances and dimensions of the site boundaries and the location of the proposed crossings and driveways;

(k)

a splitter island to be installed in Grandview Road, at the Grandview Road/ Warleigh Grove intersection;

(l)

a second speed hump to be installed in the lane close to the footpath in Hillcrest Avenue;

(m)

'No Stopping' signs to be installed at each end of the main entrance to the site to provide reasonable sight distances;

(n)

introduce window elements on the east elevation of the stairway abutting apartments G.08, 1.08 and 2.08;

(o)

introduce a hipped roof form to the north-south apartment block located parallel to the rear side boundary which hip should be located near the central window element in the east elevation;

(p)

introduce further highlight windows at third and fourth levels on the east elevation either side of the proposed central window element;

(q)

introduce panels of brick either side of the central window element on the east elevation and other select locations on the north elevation;

(r)

delete the pitched roof over the balconies to apartments 2.23, 2.24 and 1.08 and replace with flat roofs and pergola elements;

(s)

modifications to reflect the alterations marked in yellow on the plans marked as Exhibit P15 at the hearing of the said planning review by the Victorian Civil and Administrative Tribunal; and

(t)

remove the "hat" like feature over the east elevation stairway and replace with a flat roof.

2

(a) The development as shown on the endorsed plans must not be altered or modified (whether or not in order to comply with any statute, statutory rule or for any other reason) without the prior written consent of the Responsible Authority.

(b) The cost of the splitter island, the speed hump and the "No Stopping" signs referred to in paragraphs (k), (e) and (m) of Condition 1 are to be borne by the developer.

3 Before the development starts, a site layout plan drawn to scale and dimensioned must be approved by a Building Practitioner registered under the Building Act 1993 and submitted to the Responsible Authority.

The plans must show:-

(a)

a drainage scheme providing for the collection of storm water within the site and for the conveying of the storm water to Council's nominated point of discharge to the satisfaction of the Responsible Authority.

4 Before occupation all buildings and works specified in this permit must be completed to the satisfaction of the Responsible Authority. The Responsible Authority must be advised in writing when all construction and works are completed to enable the site to be inspected.

5 Street numbers contrasting in colour to the background must be fixed at the front boundary of the property as near as practicable to, or on the letterboxes in order to clearly establish the identity of the property.

6 All service pipes, fixtures and fittings (other than stormwater downpipes) must be concealed on exposed elevations to the satisfaction of the Responsible Authority.

7 Soil levels at the boundaries must be retained by the provision of an adequate retaining wall, constructed of brick or masonry or other suitable alternative approved by the Responsible Authority, to buttress the soil against the possibility of shift. The construction of this retaining wall is to be the sole responsibility of the owner/developer.

8 Before occupancy starts, areas set aside for parked vehicles, access lanes and associated access ramps as shown on the endorsed plans must be:

(a) constructed to the satisfaction of the Responsible Authority;

(b) properly formed to such levels that they can be used in accordance with the plans;

(c) surfaced with an all-weather sealcoat to the satisfaction of the Responsible Authority;

(d) drained, maintained and not used for any other purpose to the satisfaction of the Responsible Authority;

(e)

line-marked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority;

(f)

generally in accordance with the relevant Australian Standard for car parking facilities; and

(g)

directional signage indicating car parking areas to be erected as required by the Responsible Authority and to the satisfaction of the Responsible Authority.

Parking areas and access lanes must be kept available for these purposes at all times.

9 Before the development hereby permitted starts, three (3) copies of a Landscape Plan must be submitted for approval by the Responsible Authority. The plan must show the proposed landscape treatment of the site and include supporting information to the satisfaction of the Responsible Authority. In particular, the plan should be to a scale of 1:100 or 1:200 and show:

(a) accurate location of boundaries, existing and proposed built elements, neighbouring buildings and/or vegetation that may affect or be affected by the proposed development and landscape;

(b)

accurate location and identification (botanical name) of existing vegetation to be retained and/or removed;

(c)

tree Protection Zones as required by the Responsible Authority;

(d)

clear identification of the following elements:

(i)

areas proposed to be lawn, pavement, garden beds, other landscape features,

(ii)

proposed tree locations, shrub and ground cover groupings, climber locations,

(iii)

coded identification for these groupings and the numbers proposed, and

(iv)

a Plant Schedule, which consists of an itemised list of all proposed species which schedule must include the following headings:

plant code (refers to codified botanical names used on plan, for example, Bm),

(e) supporting notes on the plan that elaborate on specific requirements for the proposed landscaping (including site preparation, protection during construction of existing vegetation, use of a suitable mulching material and proposed depth); and

(f)

a legend that explains any graphic symbols used on the plan.

When approved the plan will be endorsed and will then form part of the plans in relation to this permit.

10 Before the dwellings allowed by this permit are occupied, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

11 All existing vegetation shown on the endorsed plans to be retained must be suitably marked before any demolition of existing buildings commences or development starts on the site and that vegetation must not be removed, destroyed or lopped without the written consent of the Responsible Authority.

12 The landscaped areas shown on the endorsed plan and schedule must only be used as landscaped areas and must be maintained in a proper tidy and healthy condition to the satisfaction of the Responsible Authority. Should any tree or shrub be removed or destroyed it may be required to be replaced by a tree or shrub of a similar size and species.

13 The Responsible Authority must be advised of the completion of the landscaping so that a site inspection can be carried out. Note: A further inspection will be carried out by the Responsible Authority six (6) months after completion of the landscaping to ensure that species have been adequately maintained.

14 All disturbed surfaces on the land resulting from the development authorised or required by the permit must be revegetated and stabilised to the satisfaction of the Responsible Authority so as to prevent any erosion or siltation either on or adjacent to the land.

15 The tree removal hereby approved must be in accordance with the endorsed plan. The endorsed plan shall not be altered or modified unless further consent is obtained from the Responsible Authority.

16 The tree removal or pruning authorised by this permit must be completed to the satisfaction of the Responsible Authority.

17 The existing street tree/trees must not be removed or damaged.

18 Existing vegetation shown on the endorsed plans as to be retained must not be removed, destroyed, pruned or lopped without the written consent of the responsible authority and all tree pruning must be carried out by a qualified Arborist to AS 4373, Pruning of Amenity Trees."

19 Prior to the commencement of any development or demolition works a Tree Protection Zone Fence of cyclone wire or similar construction must be erected to a height of at least 1.8 metres at a minimum distance in radius as specified below from the centre of the following tree(s):

(a)

Tree No.1: (Lophostemon confertus) 5.00 metres

(b)

Tree No.2: (Lophostemon confertus) 5.00 metres

(c)

Tree No.3: (Lophostemon confertus) 5.00 metres

(d)

Tree No.4: (Lophostemon confertus) 5.00 metres

(e)

Tree No.5: (Lophostemon confertus) 5.00 metres

(f)

Tree No.6: (Lophostemon confertus) 5.00 metres

(g)

Tree No.37: (Melaleuca styphelioides) 3.00 metres

(h)

Tree No.38: (Lophostemon confertus) 5.00 metres

(i)

Tree No.39: (Lophostemon confertus) 5.00 metres

(j)

Tree No.40: (Lophostemon confertus) 5.00 metres

(k)

Tree 12: (X Cypressus leyandii) 4.00 metres north

(l)

Tree 92: (Quercus robur - English Oak) 8.00 metres west

(m)

Tree 96: (Corymbia cirriodora -

Lemon Scented Gum) 9.00 metres west

20 Barrier fences must stop access by persons, vehicles or machinery to the area it encloses and be maintained throughout the entire construction period and must have a sign attached stating 'tree protection zone fence'. (Access may be permitted only with the consent of the Site Manager or the Consultant Arborist)

21 There is to be no excavation in the area enclosed by this fence and a layer of organic mulch (woodchips) to a depth of not less than 100mm, must be laid and receive at least 1 litre of water for every 10mm of trunk diameter on a weekly basis during the construction period to assist moisture retention and reduce the impact of soil compaction.

22 No materials, chemicals, paints, equipment, temporary building or other things are to be dumped, stored or erected within tree protection zone fence.

23 There is to be no excavation or change to the existing soil level within the following distances from each of the tree protection zone fences:

Tree Particulars Distance From Tree Protection Fence

(a)

Tree No.1: (Lophostemon confertus) 0.5 metre

(b)

Tree No.2: (Lophostemon confertus) 1.00 metre

(c)

Tree No.3: (Lophostemon confertus) 1.5 metres

(d)

Tree No.4: (Lophostemon confertus) 1.5 metres

(e)

Tree No.5: (Lophostemon confertus) 1.5 metres

(f)

Tree No.6: (Lophostemon confertus) 1.5 metres

(g)

Tree No.38: (Lophostemon confertus) 2.5 metres

(h)

Tree No.39: (Lophostemon confertus) 0.5 metre

(i)

Tree No.40: (Lophostemon confertus) 2.0 metre

A qualified Arborist must be on site during any excavation or trenching works on or adjacent to the minimum limit from the Tree Protection Zone fence to inspect and advise on possible damage to the root system.

24 The following is required to the satisfaction of the Responsible Authority in relation to the protection of street trees. Within 3.0 metres of the tree Protection fence associated with all street trees tree the following is required:

(a)

tree protection fences are to be provided along the edges of the existing naturestrip during construction;

(b)

any excavation must be done by hand in the presence of a qualified arborist; and

(c)

any roots encountered must be cut cleanly with a sharp instrument;.

25 The installation of utility services must be bored under the root systems of the trees to be retained.

26 Supplementary watering is to be provided to the satisfaction of the Responsible Authority to all trees during dry periods for a time not exceeding two years from construction as recommended by an arborist, such watering to consist of deep soaking at least twice a week during Summer, and daily during extreme heat conditions.

27 Except with the consent of the Responsible Authority nothing is to be attached to any tree including temporary services, wires, nails, screws or any other fixing device.

28 All root zones are to be bridged using timber planks, to assist in reducing soil compaction and consequent root damage.

29 A Qualified Arborist must attend a pre-construction meeting and attend the site during site cut and excavation to ensure that all affected tree roots are managed correctly and to ensure any damaged or exposed tree roots are pruned cleanly and the cut ends sprayed with a root hormone solution before covering with soil.

30 Any backfill material must be a mixture of quality topsoil and organic composted material and the trees must be monitored on a regular basis during and (if required by the Responsible Authority) after construction, by the Consultant Arborist.

31 Open trenching that would affect tree roots of trees being retained must be avoided with boring under root systems as an alternative.

32

(a) The proposed crossing between Trees No 4 and 5 to be investigated with an air knife to determine its form and location. It is not to be constructed so as to cause undue damage to the roots of trees. Note: Currently there is a stormwater side entry pit and fireplug located between these two trees. Construction of a crossing between Trees Nos 4 & 5 will necessitate relocation of these two items which will have additional detrimental affect on the trees.

(b) Other crossings must be constructed in a manner that will not damage the root systems of any mature trees.

(c) An experienced and qualified Arborist must be engaged prior to the design and construction to plan and oversee construction methods, to ensure no damage to the trees (above and below ground).

(d) The crossings are to be designed to the satisfaction of the Responsible Authority and in the light of the air knife investigation referred to in (a) above to protect street trees which are to be relocated if necessary to accord with the recommendations of a qualified arborist.

33 All basic services, including water, electricity, gas sewerage and telephone, must be installed underground and located to the satisfaction of the Responsible Authority.

34 Before any construction or demolition works commence on the site, to the extent that the site perimeter is unfenced and/or is not fenced to the satisfaction of the Responsible Authority, a secure fence is to be erected around the perimeter of the site to prevent access to the site from unauthorised persons. This fence is to be maintained for the duration of the construction and demolition, to be a minimum height of 1.8 metres, or such alternative height as is approved in writing by the Responsible Authority, and be constructed and sited to the satisfaction of the Responsible Authority. The gates or openings to the fence must be securely locked at all times when work has ceased on the site.

35 The redundant vehicle crossings must be removed and the area reinstated with appropriate kerbing and channelling (and then sown with grass) to the satisfaction of the Responsible Authority.

36 Except with the written approval of the Responsible Authority vehicle crossings must be a minimum distance of 1.5 metres from any street tree.

37 Any proposed crossovers to be setback a minimum of 1 metre from any road reservation assets to the satisfaction of the Responsible Authority.

38 Prior to the issuing of a building permit for the development hereby permitted, a report must be submitted to the satisfaction of the Responsible Authority certifying that the proposed development has been designed to achieve a five star energy rating, using the Sustainable Energy Authority of Victoria 'FirstRate' system or equivalent.

39 The Legal Point of Discharge for this development is to be the Council drain located at the drainage reserve within 4.0 metres from the south boundary of the property. The Developer should be satisfied that levels permit the adoption of the above discharge point.

40 The development to have a "Stormwater Detention System' designed and to the satisfaction of the Responsible Authority.

41 Basement drainage (seepage water/ agricultural) must be pumped to the nearest Council Drain Pit and not be discharged to the kerb and channel.

42 Plans for the construction of the outfall drain are to be approved by the Responsible Authority prior to the commencement of development.

43 Any paved courtyards and paths must be graded and drained to prevent stormwater discharge into adjacent properties.

44 All waste and recycling collection to be by private contractual arrangement between the owner/developer and a private waste contractor in consultation to the satisfaction of the Responsible Authority.

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

(a) the development and use is/are not started within four (4) years of the date of this permit; or

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

C. The Responsible Authority is directed pursuant to Section 85(1)(b)(ii) of the Planning and Environment Act 1987 to issue a permit in accordance with Order B above.

_________________

RUSSELL BYARD

SENIOR MEMBER

Mr. Chris Wren SC appeared on the instructions of Maddocks Solicitors for the responsible authority. He presented written and oral submissions and called two expert witnesses. They were Craig Czarny, urban designer and Robert Milner, town planner. Each of these witnesses gave oral evidence and presented written reports. Mr. Czarny also used a powerpoint presentation.

Mr. Ian Pitt SC of Best Hooper Solicitors appeared with Scott Stewart for the applicant company. They presented written and oral submissions and called four expert witnesses. They were John William Patrick, landscape architect; Christopher James Butler, traffic engineer; Jamie Andrew Govenloch, town planner; and Catherine Anne Heggen, town planner. Each of these witnesses gave oral evidence and presented a written report.

Mr. Bill Kusznirczuk, town planner, appeared for the North Brighton Residents Social Action Group Inc. He presented written and oral submissions.

Mr. Peter Richardson, objector, appeared in person and presented written and oral submissions.

Ms. Fiona Carroll appeared in person. She presented written and oral submissions.

Ms. Fiona Bates, objector, appeared in person and presented and oral submissions.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

The land and locality were inspected before the hearing and again after the hearing.

Application under s.77 of the Planning and Environment Act 1987 (PE Act) for review of a decision of the Responsible Authority to refuse to grant a permit.

Four storey residential development over a carpark.

Residential 1 Zone and subject to a Design and Development Overlay under the Bayside Planning Scheme. At the commencement of the hearing the relevant schedule in relation to the Design and Development Overlay was Schedule 2 but, during the course of the hearing, I was notified that amendment C51 to the Bayside Planning Scheme had been approved substituting Schedule 6 as an interim measure.

The proposal is contrary to the intent and objectives of the Bayside Planning Scheme.

The proposal has a detrimental impact on the character of the area, as its scale, massing and height are out of context and would cause an unreasonable level of visual bulk to the streetscape.

The proposal would cause an unreasonable level of detriment to the amenity of the surrounding residents.

The proposal fails to comply with the objectives of the Guidelines for Higher Density Residential Development prepared by the Department of Sustainability and Environment.

The proposal is an overdevelopment of the site.

The proposed car accommodation is inappropriate.

The proposal will create unreasonable and difficult access points for delivery/services vehicles to access the site.

The proposal does not provide suitable storage areas.

The proposal will result in unreasonable amenity impacts for future residents in relation to the central courtyard in terms of:

• internal overshadowing of its own communal open space

• overlooking

• sense of visual bulk

• lack of separation and

• sense of enclosure

The proposal will have a negative impact on the existing street trees which are considered an important characteristic of the street.

The proposal provides minimal opportunity for appropriate planting.

The proposed basement will compromise the opportunity for planting canopy trees in the central courtyards.

The proposal is consistent with the intent and objectives of the Bayside Planning Scheme.

The proposal is appropriate within the context of the site, in terms of scale, massing and height and will not have a detrimental impact on the character of the area and will not cause any unreasonable level of visual bulk to the streetscape.

The proposal will not cause an unreasonable impact on the amenity of the surrounding residents.

The proposal complies with the objectives of the Guidelines for Higher Density Residential Development prepared by the Department of Sustainability and Environment.

The proposal is not an overdevelopment of the site.

The proposal provides appropriate car accommodation.

The proposal will create reasonable access points for delivery/service vehicles to access the site.

The proposal provides suitable storage areas.

The proposal has been designed to provide a reasonable level of amenity for future residents, including in relation to the central courtyard.

The proposal will have a minimal impact on the existing street trees and their character within the street.

The proposal provides opportunity for appropriate planting and will be appropriately landscaped throughout.

The proposed basement will not comprise the opportunity for appropriate landscaping in the central courtyard.

1 This case concerns a proposal for a four storey apartment building to be constructed over a basement carpark in the Bay Street major activity centre, Brighton in close proximity to the North Brighton railway station. The responsible authority has recognised that the review site is an ideal site for a medium density housing development of greater intensity than the residential development to the north and east of the site. However, it considers the form of this particular proposed development to be inappropriate for various reasons. The objectors are also opposed to the proposal without necessarily conceding that the site is ideal for its proposed purpose.

2 The nature and location of the site is the most crucial factor in this case. I will deal with its location first.

3 The Bay Street major activity centre in Brighton is based on the Bay Street strip shopping centre running off to the east and west from the intersecting north-south railway line and the North Brighton railway station located just north of Bay Street and to the west of a segment of Warleigh Grove in Brighton.

4 The Bay Street strip shopping centre is constituted by a large number of single and double storey shops on either side of Bay Street. However, there are several larger four storey buildings within the shopping centre to the west of the railway line. They present to the street as two storied. The upper levels are unobtrusive being set back from Bay Street and hidden behind their front two storey parts. There was a suggestion, in the course of the hearing, that there is or should be a policy of limiting such buildings to that side of the railway line. The justification for that suggestion is not, by any means, apparent. No doubt it depends on the availability of sites and the suitability of situations.

5 Although shops are strung out to east and west from the railway line the cross roads constituted by Bay Street east to west of the railroad north to south is a focal centre of the major activity centre.

6 Warleigh Grove is a rather unusual street. It forms a "T" intersection with Bay Street running north from that intersection parallel to the railway line against the railway reserve. (There is in fact a two storey commercial building between the first part of Warleigh Grove and the railway line, but the street alignment kinks back behind that building to run north along the railway reserve past the railway station.) Having passed the station by some distance Warleigh Grove then turns through 90 degrees to travel east as far as Grandview Road. Grandview Road runs north from its intersection with Warleigh Grove. Grandview Road is in fact the second intersection since Warleigh Grove made its 90 degree turn to go east at right angles to the railway line. The first intersection is Montclair Avenue. It runs north from the "T" intersection with Warleigh Grove shortly after the 90 degree turn from north to east.

7 After Grandview Road, Warleigh Grove changes direction again to run south-east for a short direction before turning yet again to run south until it reaches the rear property line of shops facing the north side of Bay Street. Warleigh Grove itself stops at the rear of the shops, although it there intersects with a rear lane running to west and east behind the shops and connecting with Hillcrest Avenue, the next north-south road to the east. Thus, apart from a couple of kinks in its alignment, Warleigh Grove almost encircles the block containing the review site. It runs north from Bay Street, then east, then south almost back to Bay Street.

8 The main part of the review site itself is a large open area that has been a croquet club. It is shaped like a fat back to front "L" with a frontage to the south side of the east-west portion of Warleigh Grove and a southern boundary abutting the rear of shops facing the north side of Bay Street. For part of the rear boundary there is a concrete laneway between the review site and the rear of the shop properties.

9 The whole of the review site is that croquet club premises plus the sites of four adjoining houses. Three of them (Nos. 30, 32 and 34) front the south side of the east-west segment of Warleigh Grove filling in the reversed "L" and extending somewhat further to the west. A fourth residential property (No. 42) is on the eastern side of the stroke of the "L" with its main frontage on the short diagonal stretch of Warleigh Grove where it turns from east to south. The site of this fourth house is almost triangular.

10 To the south of that house, and fronting the west side of the south bound leg of Warleigh Grove there are three brick houses at 46, 48 and 50 Warleigh Grove, the first and last being double storey.

11 The next property to the west of the review site is No. 26. It is a long thin property running from Warleigh Grove partly opposite Montclair Avenue back to the rear lane between it and the shop premises to the south. There is a long thin building down the western half of this property. This building contains flats. There is a vacant area behind No. 30, and between the rear part of 26 and the rear part of the croquet property. It is vacant apart from a shed.

12 To the east of No. 26 there is a row of houses numbered 10, 14, 16, 18, 20, 22 and 24 which back onto No. 26 and front the east side of Warleigh Grove as it runs north opposite the railway line.

13 That completes the description of the block containing the review site as Warleigh Grove circles around it. On the other side of Warleigh Grove, to its north, north-east and east there are other houses including a double storey one at 27 and a block of four apartments on the north-east side of the diagonal at 42. There are street trees on the eastern and south-eastern and southern legs of Warleigh Grove and in Montclair Avenue and Grandview Road that run north from it. Only 8 residential properties are wholly or partly opposite the review site on the opposite side of Warleigh Grove.

14 The croquet club site is largely vacant. Apart from a brick club house building it is open grounds and croquet greens. Apart from the croquet club it can be said that the residential interface from the residential properties to the north comes down to the rear of the commercial properties facing the north side of Bay Street, or the concrete laneways between the residential land and the rear boundaries of those shops. The southern end of the southern leg of Warleigh Grove, where it reaches a concrete lane, is almost a cul de sac although, as I have said, it has an outlet via the lane to the next street to the east. Also there is a walkway and a laneway from the east-west concrete lane down to Bay Street although neither of them is aligned with the south bound leg of Warleigh Grove.

15 The shops along the north side of Bay Street are in a Business 1 zone. The site and the other properties around Warleigh Grove and facing Montclair Avenue and Grandview Road are in a Residential 1 zone.

16 The site and surrounding land is also subject to a Design and Development Overlay under the planning scheme. At the time of the commencement of the hearing the relevant schedule of this overlay was schedule 2. However, in the course of the hearing Mr. Wren SC, who appeared for the responsible authority, was able to advise me that Amendment C51 to the Bayside planning scheme had been approved by the Minister. This is an interim provision to apply between 30 June 2006 and 30 June 2007. That does not necessarily mean that it could not be extended, but that time limit applies to it, at least for the present. This amendment places the site and a fairly extensive surrounding area to the north and south of Bay Street under Schedule 6 of the Design and Development Overlay.

17 The proposal envisages the demolition of the four houses presently existing on properties forming part of the parcel of land constituting the review site. It also contemplates demolition of the croquet club room. This then would provide a consolidated overall site of 9,015 square metres.

18 The proposal is to construct a building on the site to contain, in accordance with the amended plans, 91 apartments of which 85 would have two bedrooms and 6 would have three bedrooms. The building would be constructed over a basement carpark to contain 197 car spaces plus bicycle racks, storage facilities and rubbish recycling. There would also be a swimming pool, gymnasium, change rooms and a court yard garden in the basement. A further 10 ground level car parking spaces would be provided in the open air. Vehicle access to the basement carpark, and 8 of the ground spaces, would be via a driveway and a ramp leading from a crossing from the southern boundary of Warleigh Grove situated towards the centre of the frontage of the site of that street. There would also be a secondary crossing to the east of the driveway connecting to the main drive under a port cochere leading to the main foyer inside the building. Two ground level car spaces would have access from a minor driveway from the rear part of the triangle house site.

19 The building would be principally used to accommodate the various apartments with access corridors, balconies and the like. However, there would also be communal facilities off the main foyer of the ground floor including office, business centre, kitchen and multi purpose rooms.

20 The building is well articulated. It can be described as being, in plan form, something like a highly modified "H". The main wings of the building are oriented north to south down the site, but joined in the middle via a relatively narrow cross corridor at the various levels which corridor would be walled in glass on either side. But for that transverse connection there would be a north-south open space between the two halves of the building. This is clearly designed to take maximum advantage of northern sunlight and to allow sun penetration down through this central opening. Although criticised by Mr. Milner, this arrangement is a sound and sensible one which enables a substantial development without any of the units being dependant on solely southern aspect. That is something of an achievement. It is fair to say that few developments of this scale achieve that.

21 Apart from the open area through the middle of the site there are reasonably substantial setbacks from Warleigh Grove with landscaped areas. There are setbacks around the other boundaries of the property with two substantial landscaped courtyard areas on the eastern and western sides a short distance south of where the connecting structure between the two wings is located. Clearly particular attention has been paid to the landscaped courtyard and other grounds on the eastern side to protect the amenity of the three houses (Nos. 46 - 50), along that boundary so as to avoid them being unduly enclosed across the rear boundary. Attention has also been given to further setbacks at upper levels, particularly in favour of No. 46.

22 The floor plans diminish as the building rises from ground floor to third floor level, and as the built structure is progressively stepped back as its height rises. The ground floor, which also contains other facilities, would have 25 units with 28 on the first floor but only 12 on the upper floor. This third floor is thus very much smaller than the floors below it. Also it is located more or less in the centre of the site set back in its southern half or two-thirds. This means that it is well set back from adjoining residential properties that front various aspects of Warleigh Grove and set back quite considerable distances (30, 35 and more metres) from Warleigh Grove. This upper storey is positioned to the south so as to be away from residential properties and views from residential streets, back towards the common boundary with commercial properties to the south. This southern boundary has to be regarded as by far the least sensitive. Furthermore, this reduced upper level will be unobtrusive as being screened or substantially screened from the public domain (streets) by surrounding buildings including the proposed lower portions of the building to be constructed and the shops along Bay Street.

23 It appears that some parties to this case are opposed to a third floor (4th level) in principle, or because it is assumed that such a structure must necessarily overlook or overshadow surrounding dwellings. Such "principles" do not necessarily hold good in practice. Such claims of presumably made by people who have not studied the plans to ascertain whether there would in fact be overlooking or overshadowing, or to check the degree to which a reduced portion of the building at that level would in fact be visible or prominent, much less dominant. It is incumbent on me, at least, to assess the actual impact of what is in fact designed and proposed which sometimes (as in this case) does not support or justify the "in principle" opposition.

24 The land is in a Residential 1 zone and thus subject to cl.32.01 of the planning scheme. Purposes of that zone include the provision of residential development and a range of densities with a variety of dwellings to meet the housing needs of all households and to encourage residential development that respects the neighbourhood character.

25 This is a separate area within an existing neighbourhood character however, the evidence indicates, as a general proposition, a preponderance of detached family houses standing in their own garden settings. That is also a description of the residential area to the north and east of this review site. The need for a range of densities and a variety of dwellings to meet varying needs does not, of itself, justify any wholesale demolition or revolutionary change to an established residential area of this character. It should nevertheless be borne in mind when an opportunity for residential development at different ranges of density and variety of dwellings arises. Opportunities to meet such needs are scarce enough in suburbs like Brighton. The opportunity of a scarce site of substantial area in a less sensitive location than some, cannot be ignored.

26 "Dwelling" is a section 1 in the Table of Uses in the residential zone so no planning permission is needed on that account. However, cl.32.01-4 provides that a permit is required to construct two or more dwellings on a lot. Thus, a permit is required under that provision. Nevertheless, the so-called "ResCode" provisions in cl.55 of the planning scheme are not applicable in this case because, as cl.32.01-4 also says, cl.55 does not apply to a development of 4 or more storeys, excluding the basement.

27 Planning permission is also required under the Design and Development Overlay in cl.34.02 of the planning scheme. Clause 34.02-1 says as much.

28 The purpose of a Design and Development Overlay includes to identify areas with specific requirements relating to design and built form of new development. Design objectives are specified in various schedules to the overlay. When the hearing started the design objectives for schedule 2 of the overlay were applicable. That schedule applied, and still applies over a wider area. Schedule 2 is entitled BUILDING HEIGHT CONTROL-INLAND AREAS. The relevant design objectives are related to contributing to local urban character, enhancing the public realm, diminishing detrimental impact on neighbouring properties, preserving existing character and amenity of areas as low rise suburban areas with a strong garden character, maintaining streetscape rhythm and building scale and height with a strong landscape character.

29 This schedule specified that a permit is not required for a building height of no more than two storeys and no more than 9 metres with a modest extension on that limit in relation to sloping ground. That did not provide a prohibition on buildings of more than two storeys or more than 9 metres. It merely meant that a planning permit was required for such larger structures. It implied that buildings exceeding two storeys and 9 metres were contemplated as being appropriate and acceptable in some circumstances, but not without the proposal being scrutinised by the planning permit process.

30 It is important to appreciate that design and development overlay areas subject to schedule 2 are very extensive in Brighton and applicable to general residential areas to the north and east of which this site which is at the very fringe, and at the interface with Business 2 zoning. Schedule 2 does not recognise the crucial status of this site as being in the very heart of a major activity centre. It does not recognise the existence of the major activity centre at all, except insofar as it recognises that more than two storeys can be acceptable within the schedule 2 area although it might be fair to infer that such instances would be exceptional cases. By recognising the possibility of such exceptions, schedule 2 recognises the possibility, indeed the reality, of this site being just such an exception.

31 During the course of the hearing evidence was produced of an interim amendment to the planning scheme in the shape of schedule 6 to the Design and Development Overlay. This schedule supersedes schedule 2 so far as the review site is concerned, and also so far as the major activity centre based on the Bay Street shopping centre and the North Brighton railway station is concerned. It replaces schedule 2 over quite an extensive area around these features, and extending for a number of block to the north and south, well beyond the location of the current review site. Although quite an extensive area, it is small in comparison to the much more vast remaining schedule 2 area from which it has been extracted and within which it now forms an island.

32 Schedule 6 is concerned with INTERIM BUILT FORM STANDARDS FOR MAJOR ACTIVITY CENTRES. As such it has specific application and relevance to this site and the major activity centre in which it is situated in a way that schedule 2 certainly did not. Unsurprisingly, the emphasis is on the major activity centres to which the schedule areas relate, rather than the general residential hinterland which was the concern of schedule 2.

33 Consequently, the design objectives to be achieved by the Design and Development Overlay in relation to the schedule 6 area are quite different to those applicable under schedule 2.

34 There are, in fact, four major activity centres to which schedule 6 applies. The first of them is Bay Street, Brighton. The others are Church Street, Brighton; Hampton Street, Hampton; and Sandringham Village. I will refer only to Bay Street, Brighton.

35 Editing the statement of design objectives in that way they read:

To ensure that the height of new development is compatible with the character of the major activity centres and adjacent sites of Bay Street, Brighton ...

To maintain the prevailing streetscape rhythm, building scale and height of the centres.

To maintain a strong landscape character with residential buildings set within vegetated surrounds.

36 It can be seen that, although the objectives do not overlook residential uses and developments within the area the concentration is upon the centre, rather than the surrounding residential area and on new development being compatible with the centre and its adjacent sites. This is quite a different emphasis, and essential difference is that it is the purposes of designated major activity centres that are to be achieved.

37 Clause 2 of schedule 6 then goes on, in somewhat similar terms to the equivalent provision in schedule 2, to provide that a permit is not required in areas zoned Residential 1 for buildings not exceeding two storeys and more than 9 metres in overall height, or 10 in areas of a specified natural slope of the ground.

38 Clause 2 of schedule 6 then goes on to deal with permit requirements. It imposes some general ones applicable to all centres before dealing specifically with each of the major activity centres beginning with Bay Street, Brighton. However, in doing this it does not prescribe particular controls in narrative form but rather sets out a map of the Bay Street, Brighton schedule 6 area divided into built form precincts denoted as A, B, C1, C and D. A key or legend to the map headed "Built Form Precincts" reads:

39 This map and the provisions in relation to it generally match, but are not identical to equivalent material to be found in the Bay Street Centre Draft Structure Plan (exhibit W10) said to be a draft structure plan summary document with closing date for comments at 16 September 2005. That document was referred to and discussed in the course of the hearing. Mr. Pitt, on behalf of the applicant was anxious to point out that it is not, and has not reached the status of a so-called seriously entertained planning proposal and thus, according to him, of little weight or relevance in the circumstances. I do not propose to discuss it at length at this point but merely to observe that the precinct areas in that document were A, B, C, and D, without the elaboration of a distinction within C between C1 and C. In it C residential areas are contemplated as having a height at street frontage of up to 7.5 metres and with larger sites buildings up to 12 metres. It should be noted that the present proposal exceeds 12 metres. The present site is wholly within the C area in the draft structure plan map except for the triangular residential site at the eastern end of the frontage to Warleigh Grove fronting the diagonal south-east leg of that street.

40 As previously noted, schedule 6 was introduced by Amendment C51 to the planning scheme with operation from 30 June 2006 to 30 June 2007. It was introduced at the urging of the responsible authority in its capacity as a planning authority. It has put this forward, by its own admission "reluctantly". Exhibit W3 is a bundle of documents containing correspondence and other communications between the responsible authority and the Minister in relation to Amendment C51. It includes a document of the council entitled Interim Height Controls for Major Activity Centres. The document is a submission intended to articulate presentations made on 11 May 2006 in support of proposed interim height controls for major activity centres in Brighton. It appears that the council was anxious to have the interim control in place fairly promptly, perhaps in time to influence this current case. In the introduction the following appears:

In the context of the above, Council has developed a new compromise position for consideration by the Minister. Council does so reluctantly, but in a spirit of co-operation to provide interim management of applications seeking to exploit certain aspects of Melbourne 2030 and activity centre designation.

41 It appears that it is a new "compromise" because it does not represent what the council really wants, but cannot obtain. The council apparently wants to impose restrictions, including height controls, but are so restrictive as to defeat the intention of major activity centres and the Melbourne 2030 metropolitan policy. It is hard to avoid the impression that the council is "reluctant" as it realises it cannot have limitations as restrictive as it would wish, and therefore seeks limitation as restrictive as possible. It apparently regards proposals seeking to realise major activity centre objectives and Melbourne 2030 as attempts to "exploit" them.

42 The responsible authority in fact sought the imposition of mandatory height limits in interim controls for major activity centres including Bay Street limiting development to three storeys for commercial and two storeys for residential land. It is hardly surprising that these unrealistic proposals would be rejected. They are quite destructive of important relevant policies.

43 Amendment C51 did come into operation in time for the determination of this proceeding. It did not provide any hard and fast height limits or limits on numbers of storeys. Rather it imposed indicative limits but allowed planning permission to allow proposals exceeding them. The council sought the interim control for two years, being the maximum allowable in relation to interim controls of this sort. A 12 month "sunset" was imposed.

44 The actual provisions in schedule 6 relating to Bay Street, Brighton differ from the structure plan map by dividing the C precincts into C1 and C. This distinction applies to this review site. Its central core down to its southern boundary adjacent to the rear of the shops is C1. A fringe along the Warleigh street frontage and down the eastern side is C. The almost triangular residential block remains D. The C1 area extends from the site through to the western leg of Warleigh Grove beside the station, and thus through some of the residential properties facing the eastern side of that segment of Warleigh Grove.

45 In addition to the legend on the map there is a table of provisions with a couple of footnotes making up the balance of the Bay Street, Brighton provisions in schedule 6. The table is introduced by the following words:

Buildings and works must be constructed in accordance with the following requirements:

The table, in relation to C1 an C imposes restraints on maximum building height, maximum number of storeys and minimum setbacks. For C1 the maximum number of storeys is three, and for C it is two. This is more restrictive than the draft structure plan. For building heights it is 12 metres for C1, not to exceed 13 on sloping ground and for C it is 9 not to exceed 11.

46 At first reading the words introduced in the table might appear to impose a mandatory height limit. However, when schedule 6 is read together with the Design and Development Overlay provisions of cl.43.02 of the planning scheme, it can be seen that this is not the case. The map and table in the Bay Street, Brighton portion of schedule 6 impose generally applicable restrictions that can be exceeded if planning permission is granted for such exceedance. That is provided for by a paragraph in cl.43.02-2 of the Design and Development Overlay provisions which reads:

A permit may be granted to construct a building or to construct or carry out works which are not in accordance with any requirement in a schedule to this overlay, unless the schedule specifies otherwise.

47 Schedule 6 provides a requirement of not exceeding the limits in the table in the relevant area on the map, but does not contain a specification that those requirements cannot be exceeded by the grant of a permit under the above quoted provision.

48 The result then is that a permit can be granted to exceed those requirements in relation to a particular proposal if the planning merits of that proposal justify such permission. The needs, characteristics, location and surrounds of particular sites are to be taken into consideration in making this assessment. Amongst relevant considerations in this connection must be the need to achieve the purposes of the major activity centre having regard to its purpose and importance as part of the wider metropolitan strategy known as Melbourne 2030. Over and over again, in the course of a fairly lengthy hearing, I was urged to affectively ignore this central consideration. Values and concerns of the wider residential hinterland were urged upon me as applicable here to the exclusion of these major activity centre and Melbourne 2030 considerations. Of course, on behalf of the responsible authority, there was at least token mention of major activity centres and Melbourne 2030, but I was nevertheless repeatedly urged to view this proposal as if it was in the midst of a residential hinterland, and not at the heart of a major activity centre and hard up to its railway station, bus routes along Bay Street and commercial strip shopping centre. If I would not view height, scale, bulk, streetscape and like considerations in quite that way, then every endeavour is made to at least minimise what might be approved.

49 In my opinion that is a quite inappropriate approach generally. Whether some people like it or not I am bound to have regard to in relation to 2030, the status of the major activity centre and the Design and Development Overlay control provisions together with schedule 6 thereof. They are very important planning considerations relevant to this site and its surrounds.

50 I was urged to consider that the "community" and its interests and concern in a very narrow localised way. It was as if the community is limited to the immediate neighbours, and the residential neighbours at that, within sight or a stone's throw of the site. That would not be correct. Community includes those people and their concerns, and they need to be taken into consideration. It also includes the wider major activity centre the regional and metropolitan community of which immediate vicinity is part.

51 In applying these planning control provisions that I have mentioned and explained above it is important to ensure that this scarce and valuable site, which is of significant importance in relation to realising the purposes of the centre and Melbourne 2030, is not wasted. Just as it should not be overdeveloped, so it should not be underdeveloped and under utilised. It is important that its optimum potential, including its optimum potential in relation to yield or dwellings, should be realised. It is often assumed by opponents of planning proposals that less is always better. That is not, by any means, always true. It is not true here.

52 This does not mean that local and neighbouring concerns are to be ignored. On the contrary, they are important and need to be taken into consideration. However, they are not so important as to be the only considerations or to dominate or exclude other values of great importance to the planning metropolis as a whole and the success of this major activity centre. More activity, and more population in close proximity, is important to the Bay Street activity centre itself. So far as reducing dependence on motor car transport, and the enhancement of the use of public transport, and particularly heavy rail transport, is concerned, the optimum use (exploitation in the language of the responsible authority) for sites like this is of key importance.

53 The responsible authority tendered, in exhibit W7, a general practice note of the Department of Sustainability and Environment December 2003 in relation to structure planning for activity centres. This and related documents bring out a significant fallacy in the approach urged on me by the responsible authority. There was frequent enough reference to maintaining existing neighbourhood character, and some reference to preferred future neighbourhood character. This was all on the basis that I am dealing with an existing and future neighbourhood character of a Brighton residential hinterland type, whilst ignoring what the real preferred and planned future neighbourhood character of the activity centre, and this site at the heart of it is intended to be. The future here on this large site wedged between the back of the shops and the side of the railway station is not merely leafy gardens around one and two storey detached family houses. If the purposes of the activity centre and Melbourne 2030 are to be achieved, preferred future character implies major changes. As the structure plan document says, in answering its question as to what is structure planning:

Structure plans will guide the major changes in land use, built form and public spaces that achieve economic, social and environmental objectives of the centre.

It then notes that a structure plan will usually require planning scheme amendment as one of its implementation mechanisms. It goes on to say:

Principal and Major Activity Centres identified in Melbourne 2030 are likely to experience significant change over time as Melbourne moves to a more sustainable future ...

Structure plans will provide the foundation for activity centre change by defining the preferred direction of future growth and articulating how this change will be managed.

It then observes that activity centres are places where people shop, work, meet, relax and live and that increasingly they will be served by public transport and they include strip shopping centres. The document goes on in relation to directions in Melbourne 2030, and in relation to direction 1 therein

It envisages activity centres as locations where new development will be concentrated, including new commercial development and a range of housing forms and densities.

It notes that Melbourne 2030 discourages new development or expansion of activities away from activity centres (unless there are special circumstances).

The document goes on to the process of structure planning. It says that the plan must give effect to state and local planning policies for the area including the Municipal Strategic Statement, but the latter is subject to this significant qualification "(provided it is consistent with Melbourne 2030)". There is a need to identify "stakeholders". I suggest that this concept of stakeholder should not be too narrowly drawn.

Melbourne 2030 Activity Centres - Interim Structure Plans December 2004

54 It is to be recalled that Amendment C51 and schedule 6 of the Design and Development Overlay is part of the interim structure plan arrangements. The Department of Sustainability and Environment has published an advisory note of December 2004 entitled Melbourne 2030 Activity Centres - Interim Structure Plans. This document reiterates that structure planning is a process for developing a framework of integrated development of an activity centre and that

Structure plans will guide the major changes to land use, built form and public spaces that together can achieve economic, social and environmental objectives of the centre.

The Minister for Planning has enabled interim structure plans as interim amendments to planning schemes. However, it is important to note the following passage

While planning authorities prepare structure plans and the necessary planning scheme amendment, development proposals will continue to be lodged and will have to be dealt with in accordance with the planning scheme provisions.

Interim Structure Plans will help protect key features and opportunities in centres on a temporary basis while final Structure Plans are being prepared.

55 It is important to notice this passage because it runs quite contrary to the major submission made in the case on behalf of the responsible authority. It was urged on me that the interim structure plan represented by schedule 6 is intended to hold the situation while the planning authority prepares its structure plan. It was strongly urged that to allow this proposal, particularly if it in any way exercised the power reserved to grant permission for something exceeding the limitations of the schedule 6 map and table, would be contrary to orderly planning and might prejudice, undermine or forestall the structure planning activity being undertaken by the planning authority. It was said that the structure plan preparation was well "on track".

56 Mr. Wren argued that orderly planning demands that schedule 6 indicates that its limits should only exceed in "extraordinary circumstances" and that no such extraordinary circumstances apply here. This rhetorical flourish does not really add much of any use. He did not say what circumstances might amount to being extraordinary for this purpose, or how extraordinary they would need to be.

57 I do not think that the choice of the phrase "extraordinary circumstances" is a happy one in this context. I think exceptional might be more appropriate. In other words, indications of schedule 6 should apply unless there are circumstances that warrant the grant of a permit which would amount to an exception to that guide. As previously indicated, physical conditions as well as policy considerations and location in relation to major activity centre might well justify an exception in a particular case.

58 It would be contrary to sound planning, and unreasonable, to take this approach as meaning that everything must remain as it is, or at least nothing exceeding the really quite restrictive limitations of schedule 6 should be approved, until a final structure plan is implemented. Mr. Wren urged that there should be a "mort main"[1] over any such development in the interim. I would not have accepted this approach in any event, but the above quotation demonstrates that it is misconceived. Current applications are to be considered on its merits, and as things stand at the time the determination was to be made.

59 I might add that I do not think that I can assume that either the interim controls in schedule 6, or the draft structure plan will represent the final result of the structure planning exercise. The responsible authority, in its capacity as a planning authority, is apparently approaching its task reluctantly with a view to minimising what is allowed. No structure plan or planning scheme amendment to implement it is likely to come into force as a permanent provision if it is so restrictive as to undermine the purposes of the major activity centre or to prevent the sort of major changes the land use and built form contemplated for activity centres, much less restrictions that would undermine the achievement of Melbourne 2030 generally or in relation to this particular major activity centre. Even where there is a proposal that can be regarded as a seriously entertained planning proposal, the weight that might be given to it in relation to a particular permit application may vary according to whether it represents sound planning and is likely to be implemented. Some proposals might be seriously entertained by a particular planning authority whilst being quite unreasonable or improbable or most unlikely to ever become part of the planning law or a permanent part thereof. The reason for giving weight to seriously entertained planning proposals is to avoid the situation that sound proposals that are well advanced and likely to be implemented should not be compromised or undermined by particular planning decisions made in the interim. That is a sound part of orderly planning. It does not really apply to improbable and unreasonable proposals that are never likely to achieve acceptance and be approved as planning scheme amendments.

60 It is this document in relation to Interim Structure Plans that indicates that the maximum time for a sunset clause will be not more than two years. Nevertheless, I cannot rely upon the idea that this interim control will only last until 30 June 2007. Such sunset clauses are often extended. I cannot assume that the draft structure plan will become an actual adopted and approved part of the planning scheme within the next 12 months, any more than I can assume that it will take on the form of the present draft or the present schedule 6. Of course none of this means that schedule 6, which is part of the planning scheme at present, is to be ignored or made light of or given less than its full weight.

61 This document (exhibit W10) is a summary document inviting comment by 16 September 2005 and is said to be built upon "emerging ideas" that were displayed in June 2005. An important part of the emerging ideas appears to be local comment but from a narrow pool of "stakeholders". Although there has been an idea that some larger sites within major activity centres might be mixed use with commercial below and residential above that concept seems to be opposed in relation to this present review site. In particular it is suggested that this so-called "croquet site" should not be a supermarket. The current proposal, of course, goes along with those notions. To do otherwise would be to bring commercial activity further north behind the existing Business 1 zone or require some means of breaking through the existing row of shops to achieve some exposure to Bay Street. The document goes on to reiterate a number of familiar planning policies and purposes including need for increased residential density to be accommodated in the centre without significantly detracting from existing residential amenity, the need to identify such larger sites and to encourage a range of housing types. It records comments that height of buildings should be limited to two storey because three storeys is said to bring an acceptable degrees of overlooking and overshadowing. That takes no account of the possibility that particular proposals might be devised to avoid doing those things, and that three or four storeys might be designed in such a way to be unobtrusive or at any rate not unreasonably intrusive, and where upper portions are recessed so as to be invisible or substantially so. I have already mentioned its dealing with C precincts as to building height and storey. I have perused this draft document but do not think it necessary here to go into further details.

Draft Southern Regional Housing Statement July 2005

62 I was also referred to various passages in the draft Southern Regional Housing Statement July 2005 (exhibit W7). This document has a broader focus than the Bay Street centre, or indeed Brighton, and has various concerns not related to this particular proposal. Although it is a draft it contemplates an ultimate Southern Regional Housing Statement. Even then that document will not be formally incorporated in the Victoria Planning Provisions or the Municipal Planning Schemes. As stated on page 3

Due to the Statement's regional focus, it does not identify specific local sites or their capacity to accommodate future growth at a local level. Therefore it is not appropriate that it be used to determine individual planning applications by local Councils and the Victorian Civil and Administrative Tribunal (VCAT).

63 I have not sought to do so but have used it more generally as background information. It refers to Melbourne 2030 and first direction therefore being to encourage a greater proportion of housing to locate at strategic development sites including activity centres. At page 9 it also notes that Melbourne 2030 proposes a gradual shift in location of housing over time to achieve Melbourne 2030 policies and directions with an increase in the overall proportion of dwellings in and around strategic development sites and activity centres from a current rate of 10% up to 25% between 2001 and 2031. At page 28 the document notes that many councils have structure planning programs and that Bayside has indicated a potential to accommodate almost 2,600 additional dwellings in strategic development sites including activity centres. The potential for accommodating housing in activity centres will, it is said, be identified in Council's four major activity centres including Bay Street, Brighton.

64 This leads me to comment on a complacent argument relied upon the responsible authority in this case. It is said that Brighton is "on track" in relation to meeting contemplated targets for increased numbers of dwellings over the years to come. This is used for a basis for saying that there is no need to worry much about achieving targets, or optimising opportunities like this site. That is because targets will be met in any event.

65 There are several things to be said about this. In the first place it is not clear whether these "targets" are maximums or minimums. In any event, there is an ongoing need in relation to achieving the strategies of Melbourne 2030 in place of major activity centres within that. It does not mean that there is no need to worry in relation to a particular site or a particular centre or a particular municipality if certain overall targets are said to be being met. Inevitably it is easier in initial stages to find sites and meet targets but they are not really targets so much as planning priorities and projectives. In the course of the hearing a comparison was drawn with a lazy soldier who was apparently a good marksman. His unit was told before an action that they could expect stiff fighting because they were outnumbered 6 to 1. The sergeant remonstrated with him later on finding him smoking quietly in the shell hole whilst the battle raged on. "It is all right Sarg" he is supposed to have said, "I've already got my half dozen". Ultimately, there is no half dozen or other particular number allocated to this site or to the Bay Street major activity centre or Bayside. In any event, that is certainly no justification for giving up on the achievement of important planning policies in relation to this site or elsewhere. There are ultimate strategic objectives to be achieved that do not warrant relaxation by responsible authorities anymore than by lazy soldiers. If Bayside council has been tempted to say don't worry about this site, sufficient has been achieved to realise the strategic objectives of Melbourne 2030; I am not similarly tempted. Melbourne 2030 is a relatively long term strategy applicable to the whole metropolis. There is a lot more to it than just a target number of new households in a limited area. In any event, I am not aware of any sufficient evidence or analysis to justify such complacency.

66 A good deal of relevant planning policy, both metropolitan and local, were referred to and discussed in the course of the hearing. Some essential elements in relation thereto are apparent in what I have said so far in these reasons. It would be laborious and repetitive to attempt to set out in these reasons all policy provisions that were referred to. By abstaining from long repetitions does not mean, by any means, that relevant policy propositions have not been taken into consideration and assessed.

67 State and metropolitan policy in cls.11 to 19 of the planning scheme received their due share of attention, particularly cl.12 in relation to metropolitan development. Clause 12 runs to 20 pages. It applies to metropolitan Melbourne including, of course, Brighton and Bayside. It deals with metropolitan strategies including the hierarchy of activity centres and the notion of an urban growth boundary. Emphasis is placed on the concentration of new development, including new residential development, in and near activity centres including major activity centres, and also in relation to public transport, particularly high volume public transport like railway lines and railway stations. There is an emphasis to reducing the number of private motorised trips by concentrating activities and locating them near transport facilities.

68 In relation to housing cl.12 emphasises that a substantial proportion of new housing should locate in or close to activity centres and with good access to such transport with high densities to be in such location, change in styles to meet various demands and with opportunities for a wide range of income groups to choose housing in well serviced locations. There is also reference to the need to identify strategic development sites for large residential developments in or within easy walking distance of major activity centres and on principal public transport networks. These themes are repeated over and again in cl.12 and in other state and metropolitan and local policies.

69 This site is clearly a key opportunity with reference to these various planning purposes. It would be quite contrary to the achievement of these purposes and the strategies designed to achieve them if this site was not utilised or if it was to be underutilised. The design previously expressed by the council to restrict development to two storeys would represent such underutilisation and would be contrary to the principal relevant planning policies.

70 It is common ground between the responsible authority and the applicant that this is a suitable and important site for the sort of development here proposed. That view is echoed by all of the expert planning witnesses called on either side. The officer's report goes so far as to describe it as ideal.

71 The responsible authority nevertheless has some criticisms of the particular form of development proposed. Notwithstanding that there are various aspects that do not attract criticism from the responsible authority. It is considered to be quite suitable from the point of view of overlooking or overshadowing neighbouring land.

72 Some criticisms of the actual proposal are made on behalf of the responsible authority by its expert witnesses, although Mr. Milner and Mr. Czarny do not agree between themselves on all points. For example, Mr. Milner does not endorse criticisms made by Mr. Czarny in relation to inadequate landscaping opportunities.

73 Mr. Milner had various criticisms to offer, but generally they are amounted to possible alternative design approaches that are not necessarily an improvement on the proposal. There would, no doubt, be many ways of tackling the task of designing such a proposal for this site. An acceptable alternative does not render the proposal being advanced defective as having "fundamental flaws"[2].

74 Criticisms were raised of the idea of the north-south separation between the two main wings of the building. This arrangement allows the penetration of northern light and sunshine down through the middle. There must necessarily be some shading on one side or another earlier in the morning or later in the afternoon before the sun reaches its meridian, or after it passes it. The incidence of some shading in this area does not make it unacceptable. The cross stroke of the "H" in the plan of the layout of the building being glazed rather than solid walls assists in allowing light through.

75 I think this design technique is generally a sound one, and a sound one in this instance. I reject Mr. Milner's notion that it would be better to separate the building east to west rather than north to south. It is really quite an achievement in the design of this proposal but there is no unit solely dependant on south facing windows.

76 Another notion was that the space between the buildings on the central front part facing the east west section of Warleigh Grove contains too wide an open space. This space is part open space and partly parking with access to parking at ground and basement levels. The criticism includes some associated objection to the inclusion of the secondary driveway running under the port cochere.

77 I think Mr. Milner may have quite a sensible case for his suggestion that this space is too wide and interrupts too much the rhythm and continuity of building along the road frontage. He suggested the inclusion of an extra two storey unit on the western side to reduce that space somewhat. That would have occasioned some redesign of other facilities.

78 Whilst I recognise a degree of validity in what he has said on this account, I am not persuaded that the improvement is so marked and so essential that the current proposal is not also acceptable. Mr. Pitt, on behalf of the applicant, acknowledged a willingness to accept this suggestion of Mr. Milner, if I thought it really was necessary and justified. There are some difficulties of this rearrangement would give rise to. Ultimately, I am content to approve the proposal without the inclusion of this additional dwelling.

79 I take a similar view in relation to the secondary driveway running under the port cochere.

80 I take a different view of Mr. Milner's criticisms that the main driveway leading to the ramp down to the basement carpark should not be located in its present central position on the street frontage, but should be located further to the west with a driveway down the western side of the property turning then to the east to run down a ramp into the basement. I do not say that such an arrangement could not be achieved, but I am not at all satisfied that it has been properly assessed and that there has been a proper balancing of the advantages against the disadvantages of such an arrangement. It is not enough, in criticising a proposal, to fail to give credit where its due or to put up an alternative without investigating it properly to demonstrate that it is both feasible and an improvement on the original. In any event, I am satisfied that the proposed arrangement is acceptable, even if Mr. Milner thinks he could improve upon it. I repeat, an alternative, even an improvement, does not necessarily mean that a proposal contains "fundamental flaws") or that it is unacceptable.

81 At this stage I have dealt in substance with the issues raised in the case presented on behalf of the responsible authority. In doing so I do not claim to have dealt with every passing comment or observation on behalf of the responsible authority, or the other parties. I have dealt with the main issues and the ones that determine the case. Other matters can be dealt with by conditions or are small or even trifling and not sufficient to warrant either refusal of the proposal, or any significant alteration to it. For example, the suggestion that the main part of the development being centred towards the southern boundary, and close to the rear of the shop properties might prejudice future opportunities for "shop top" dwelling is not, in my opinion, sufficient to warrant refusal. There is still sufficient setback space on either side of this boundary to allow some northern exposure to such "shop top" dwellings. In any event, something being introduced after a neighbouring development sometimes has to make concessions to adjust to the earlier development. It would be a proverbial tail wag of the dog to refuse this proposal or significantly reduce it because of the possibility of one or several shop top dwellings. Dwellings in a Business 1 zone can be quite a good idea, and can contribute to the building up of population in a major activity centre, but they nevertheless come into a business zone on terms of a business zone amenity. They cannot expect pristine residential amenity as might be available in the midst of a residential hinterland.

82 I will now briefly traverse the grounds of refusal as a means of summarising the case in relation to the responsible authority. I will set out the 12 grounds relied upon in bold in each case followed by my comments.

1.

The proposal is contrary to the intent and objectives of the Bayside Planning Scheme.

This is a rather generalised ground. What I have said makes it clear why I consider that it is very much in accordance with the intent and objectives of the Bayside planning scheme, particularly those related to the status of this area as a major activity centre.

2.

The proposal has a detrimental impact on the character of the area, as it scale, massing and height are out of context and cause an unreasonable level of visual bulk to the streetscape.

This proposal accords with the planned future character of the area. It is a substantial building compared to detached houses but the interface transition is really only to a two storey structure well set back from the Warleigh Grove frontage. Upper levels, particularly the highest of them, are further stepped back and located so as to be unobtrusive in the streetscape.

The expression "valued low scale development" received a good deal of use in relation to questions of existing or future preferred neighbourhood character. Of course "low scale", whether valued or not, is a relative expression. What is not low scale in relation to single storey housing might be low scale in relation to central Melbourne or a major activity centre. Of course particular proposals have to be judged on their particular circumstances and location and, for that matter, surroundings. Nevertheless, I should have thought that three and four storeys, particularly if able to be accommodated in unobtrusive situations, might be regarded as low scale in the heart of major activity centres close to railway stations. Centres like Box Hill and Moonee Ponds now have much taller buildings with many more storeys than three or four. That does not mean that eight or more storeys would necessarily be appropriate on this site in this locality. Nevertheless, it is hard to argue that four storeys well set back visually and physically, and set back in close proximity to the rear of the commercial buildings along the north side of Bay Street is not appropriate.

3.

The proposal would cause an unreasonable level of detriment to the amenity of the surrounding residents.

The development is clearly different in style to detached houses or even small blocks of flats, but that is in accordance with the future planning and purposes of the area. The proposal is a well designed one with considerable articulation and setbacks to accommodate and relieve its impact on neighbouring properties. These features are designed to ameliorate the visual impact which is really the aspect of amenity that could give concern to surrounding residents. Other potential detriments have been avoided by the design of this proposal.

4.

The proposal fails to comply with the objectives of the Guidelines for Higher Density Residential Development prepared by the Department of Sustainability and Environment.

This ground and these guidelines were not significantly pursued by the responsible authority or its witnesses in the presentation of its case. Mr. Govenloch in appendix 5 to his written submissions presented an analysis and assessment of these objectives. I have perused them and I am satisfied that the proposal is sufficiently complies with them.

5. The proposal is an overdevelopment of the site.

I do not agree with this proposition. In fact, having regard to the special characteristics of this site including its location, I think that anything significantly less would be an underdevelopment of the site.

6. The proposed car accommodation is inappropriate.

This ground was not pursued. I think that maybe because criticisms of the original proposal had been rectified in the modified plans. In any event, this ground is not made out.

7. The proposal will create unreasonable and difficult access points for deliveries/services vehicles to access the site.

In relation to this ground I repeat what I have said in relation to ground 6.

8.

The proposal does not provide suitable storage areas.

This is not a genuine ground of refusal. If it were true it is something that could be readily rectified by the imposition of conditions. In any event there is suitable opportunity for storage in the basement.

9.

The proposal will result in unreasonable amenity impacts for future residents in relation to the central courtyard in terms of;

•

internal overshadowing of its own communal open space,

•

overlooking,

•

sense of visual bulk,

•

lack of separation, and

•

sense of enclosure

This ground concentrates on the central courtyard and does not refer to the other open space areas including the other courtyard spaces. I appreciate that each of these noted points in relation to this central courtyard warrant assessment and consideration. This is, of course, an apartment building rather than some other form of residential development. I have concluded that the proposal is reasonable as to its amenity impacts for future residents.

10.

The proposal will have a negative impact on the existing street trees which are considered an important characteristic of the street.

The street trees in Warleigh Grove (and for that matter in the two streets that run off from it to the north) are certainly attractive features and rightly regarded as important. The landscaping proposal contemplates retention of them all and their possible supplementation. It is appropriate to make arrangements to protect the trees, if necessary, during construction and to make minor adjustments in their favour if required. In the circumstances of this case this ground does not amount to a reason to refuse the proposal.

11.

The proposal provides minimal opportunity for appropriate planting.

12.

The proposed basement will compromise the opportunity for planting canopy trees in the central courtyards.

This is the area where Mr. Milner apparently disagrees with Mr. Czarny. There are setback areas of varying dimensions and courtyard open space areas that provide opportunities for appropriate landscaping. It is an unfair exaggeration to describe them as "minimal". The basement carpark is an enormous savings of space and an enormous saving of unsightly car parking and car facilities. The word "compromise" does not mean prohibit or wholly prevent. There are suitable opportunities for landscaping including canopy trees. These grounds are not substantiated.

83 Inevitably a number of matters of concern to objectors have been dealt with in giving my reasons in relation to the case of the responsible authority. I will mention some at further points not relied upon by the responsible authority.

84 Ms. Carroll referred to a restrictive covenant that affects her land. Such covenant does not affect the review site and is not relevant.

85 I can understand that some residents prefer single dwellings on single lots and that they may have thought that this immediate area would remain in that form, or at least in that form together with the croquet grounds. Even if that expectation was formed only recently, it is a mistaken one that takes no account of the future planning of this immediate area and its status in and in relation to the major activity centre.

86 Concerns about possible traffic congestion have not been substantiated. The evidence indicates undue traffic congestion is not to be anticipated from this development having regard to the capacity of the road system. The council could impose parking limits if it was thought necessary, but the need is not apparent. The proposal includes ample parking for the demand it will itself create. The proximity of trains, the station and bus routes in Bay Street make reliance upon motor vehicles less than would otherwise be the case.

87 Concern was raised about the danger of traffic, but has likewise has not been substantiated. There is always some danger that there will be traffic accidents or that pedestrians might be hit by cars if they or the drivers are careless. There is traffic already. An accident can happen in the safest of circumstances. There is no untoward danger inherent in this proposal. This is not to guarantee that accidents will never happen, but they should not happen where proper sight lines are provided and where vehicles will be moving at slow or relatively slow speeds, particularly if people take ordinary care.

88 Conditions were discussed in the course of the hearing on the basis of a draft set of conditions submitted on behalf of the responsible authority. that draft has formed the basis for the conditions I propose to impose but with some modifications reflecting views formed in the course of the hearing and on the basis of the discussion of conditions. In some cases I have also made alterations to improve, at least to my satisfaction, the setting out or English expression employed.

89 The draft conditions contained some notes which are not part of my order. I have increased the time for commencement of the development to four years, as I regard that as more realistic and more reasonable, having regard to the scope of the project. I have determined not to include a construction management plan suggested by Mr. Kusznirczuk.

90 For the above reasons I have concluded that this application for review should be granted together with a permit for a four storey residential development above a basement carpark in accordance with conditions.

_________________

RUSSELL BYARD

SENIOR MEMBER