ARE THERE UNACCEPTABLE AMENITY IMPACTS TO NEARBY RESIDENTIAL PROPERTIES?

1. Respondent objectors raised the following concerns in relation to amenity impacts:
   • Overshadowing of properties facing Ann Street and Cecil Street.
   • Creation of visual bulk especially due to the slab of side wall at a height more than double the height of dwellings in Ann Street and the use of the winged balcony screens.
   • Overlooking to secluded private open spaces and habitable room windows to the west and south. They say every balcony facing west allows views into the adjoining sensitive interfaces.
   • Increased noise arising from additional traffic in laneways and occupiers of dwellings, especially given proximity of balconies to nearby properties.
2. It is Council's submission that the design allows overlooking to the secluded private open space of a number of residential properties from balconies at all levels, that shadows will be cast to 23 Ann Street and that the proposal fails to meet side and rear setback standards resulting in a built form that will negatively impact on nearby dwellings.
3. Mr McGauran gave evidence that the south western and south eastern corners of the building present with largely solid built form that are visually intrusive to the open space of the fine grain residential sites to the south. He said that the privacy screens to the west facing balconies create visual bulk in the context of the adjoining residential properties to the west, exacerbated by the angled sections projecting into the lane.
4. It is the applicant's submission that while the introduction of a 3 to 4 storey form will change the outlook from the houses to the west, such change must be expected given DDO11 actively encourages higher scale development. The applicant says the projection of the screens beyond the boundary of the site is minor and unlikely to have any material impact on perception of the building, the south west corner of the building is appropriate at two storeys and with the remainder of the southern elevation creates a well-articulated form generously separated from sensitive interfaces.
5. It is Mr Sheppard's evidence that the proposal will not result in unacceptable visual bulk. He says this is achieved though upper level setbacks to the west and south that will limit the visibility of the proposed upper form from the neighbouring properties; the articulation and resolution of the elevations that will break up the mass; and separation of buildings from adjoining properties provided by the lanes. He says the boundary construction of part of the western elevation and the balconies extending slightly into the lane can be supported given the 3.5 metre wide lane which allows higher form to be more easily integrated with existing built form. It is his evidence that the use of the lane width in assessing side setback (B17) compliance is appropriate since it is the amenity of the adjoining property that is sought to be protected, not the lane, and it accords with the commonly accepted approach at locations such as activity centre edges.
6. In relation to overlooking, Mr Sheppard says the mix of highlight windows and screened balconies to the west and south will ensure limited overlooking in accordance with relevant standard (B22). Mr Sheppard says that shadows cast by the development to the west and south will predominantly fall within the laneways and will comply with the relevant standard (B21).
7. Mr Crowder's evidence is that amenity expectations of existing residents need to be tempered and contextualised by the planning framework that encourages taller and more intensive housing in this area. It is his evidence that:
   • All windows and balcony areas with potential to overlook adjoining properties have been treated in accordance with the relevant standard, but he recommends a permit condition that requires detailed demonstration of compliance.
   • The additional minor shadow to adjoining properties is acceptable and in compliance with the relevant standard.
   • Any noise associated with the use of the dwellings will be residential in nature and acceptable in a residential area. Traffic use of the laneway will create noise but this is to be expected given lanes are intended to facilitate vehicular movements.
   • The combination of well-articulated western and southern elevations created by varied setbacks, materials and colours, a design that has tempered the building envelope where it aligns with the rear yards of properties not affected by DDO11 and the separation provided by the lanes limits adverse visual bulk.
8. Although the review site does not have direct residential interfaces due to the three road frontages and the existing non-residential use to the east, there are nevertheless sensitive interfaces to the west and south. We consider these in addressing the amenity impacts.
9. To the south the proposal presents with a two to three storey form to the laneway with the fourth level setback 6.5 metres with a balcony to 4.9 metres. We consider this presentation will avoid unacceptable visual bulk to the properties to the south due to the separation provided by the 7.4 metre wide lane, the inclusion of the lower two storey element to the south west corner, the recessed upper level and the modulation provided by varied external materials and the two inset balconies. The shadow impacts are acceptable with minor additional shadow before 10am (at the equinox) and compliance with the standard[4] relating to shadows to private open space. Overlooking from windows is addressed by the inclusion of highlight windows. We think the south facing balcony of dwelling 108 will require screening and while this can be achieved, such screening would have a negative impact on the internal amenity of that dwelling, a matter we have addressed elsewhere.
10. To the west beyond the 3.5 metre wide lane are the secluded private open spaces of attached double storey dwellings at 25, 27 and 27A Ann Street with habitable room windows facing those spaces. The western elevation of the proposal opposite the rear boundaries of these properties presents a series of balconies at the first and second floors extending to the laneway, all with angled solid screening to a height of 1.5 metres. The building is setback approximately 2.4 metres from the laneway. The upper level is setback 8 metres from the western boundary with a balcony to within 4.8 metres.
11. Although finding the upper level setback appropriately recessive to these properties, we are concerned that the middle two levels of this elevation creates an unacceptably imposing built form within close proximity to sensitive interfaces. Unlike to the south, the laneway to the west is narrow at 3.5 metres and does not, in our view, provide sufficient separation to avoid the appearance of visual bulk. Contributing to the appearance of building bulk is the pronounced screening of balconies that project over the site boundary and the use of highlight windows that result in a solid appearance. While this treatment is needed to limit overlooking, we think it is an unsatisfactory design response and in combination with the extent of this elevation will create unreasonable visual bulk.
12. We are not persuaded that compliance with the B17 side setback standard using the west side of the laneway demonstrates acceptable amenity impacts in this context. We do not agree with Mr Sheppard that this situation is comparable to an interface at a commercial zone given that B17 does not apply in that zone. We acknowledge that the DDO11 creates expectations of more intense development, and that four levels are clearly anticipated under that control. However, the General Residential Zone applies to both sides of the lane and the DDO11 design objectives seek the bulk and setback of new development to be respectful of the context.
13. We do not have the same concerns about the visual bulk impact of the western elevation opposite 21 and 23 Ann Street. These properties have been used for non-residential purposes which makes the interface less sensitive. Furthermore both sites are included in DDO11 with a 10 metre mandatory height limit, a circumstance that makes redevelopment likely[5].
14. In regard to other amenity impacts we find as follows. We agree with Mr Sheppard that the additional shadows cast are minor and acceptable. Although there will be additional noise arising from occupants of the dwellings, use of the laneways and general activity, these are expected and acceptable outcomes in an area where more intense residential development is sought and will be less likely to result in adverse amenity impacts compared with the previous industrial use of the land.
15. We accept that the design has incorporated measures to limit overlooking through the use of screening and highlight windows. We agree with Mr Crowder that additional detail to demonstrate compliance with the relevant standard could be included on any permit issued. However, as discussed, we are not satisfied that the impacts these design elements have on the visual bulk of the building and on the quality of internal amenity are acceptable.

IS THE BUILT FORM AN APPROPRIATE RESPONSE TO THE PHYSICAL AND PLANNING CONTEXT?

1. Council submits that the massing and overall height is not responsive to its context, will overwhelm the surrounding low scale neighbourhood and fails to respond to design objectives in DDO11 and to policy that seeks development to complement neighbourhood character. The building will be substantially higher than any other built form nearby, will be highly visible from sensitive interfaces and will create a sense of enclosure due to inadequate boundary setbacks. Council submits that the height that is 14.7 metres to the roof top plant is prohibited by the mandatory maximum of 13 metres.
2. It is Mr McGauran's evidence that the building is one level too high and fails to provide a transition in scale from the higher buildings that will occur in parts of the DDO11 area to the low scale heritage hinterland toward Ann and Cecil Streets. It is his view that development needs to be substantially eroded at the interfaces with low rise residential to the south and west and to the heritage property to the north east. Further he says that the presentation to Aitken Street needs to be altered to achieve a 10 metre street wall with all solid elements above recessed, including balcony balustrades. The framing and glazed elements to the Aitken Street façade are criticised by Mr McGauran for sitting at odds with the existing valued typologies. In answering questions on the built form, Mr McGauran agreed that a 13 metre high building could be accommodated on the site subject to a design that responded to interfaces in a more nuanced and sophisticated manner and achieved an appropriate response to the street.
3. Mr McGauran raised concerns about how the design provided for equitable development opportunities to the property to the east and at 21 and 23 Ann Street. He also suggested access to ground level dwellings should be direct from the street to activate the street frontage.
4. Respondent objectors criticised the height and bulk of the development submitting that it does not respond appropriately to the neighbourhood character of Ann and Cecil Street. They say it will create a disruptive and dominating element in the context of low scale residential development, fail to provide a transition from the higher form elsewhere in the DDO11 precinct and exceed the mandatory height.
5. It is the applicant's submission that the inclusion of the site and surrounds in DDO11 provides a strategic direction that is markedly different to that applying to nearby areas and specifically seeks a new character to be established as part of an urban renewal process. The applicant says that the proposal in its height, scale, form and street interface is an appropriate response to the desired character for the precinct and through design and setbacks appropriately respects the established residential areas nearby.
6. As noted above, this site is identified in local policy[6] as within a 'strategic redevelopment area' where a new neighbourhood character is to be defined. Concurrently local policy[7] includes the site within 'Precinct 5 - Williamstown' where development is to respond to the preferred neighbourhood character. For Precinct 5 the preferred neighbourhood character seeks to ensure development retains and enhances the spacious informal qualities of the streetscape, early architectural styles and the distinctive low scale, light weight nature of development. We agree with Mr Crowder that limited weight should be given to the policy that includes the site in Precinct 5 and refers to characteristics such as garden settings, and spacious streetscapes that do not apply to this industrial area, now included in a residential zone. We think the more recent strategic work that has resulted in the area being identified as suitable for urban renewal and included in DDO11 with specific design objectives and guidelines about built form character is to be preferred over a policy that is based on a 2002 document[8].
7. We agree with the applicant that DDO11 provides for building height transition in the overall area by establishing mandatory heights that range from 25 metres (eight storeys) to 10 metres (3 storeys). Although we think that this interpretation means individual sites within the precinct are not routinely expected to provide further transition, it may be that the context demands a design response that provides a stepping down of height. Indeed the design objectives seek to ensure that the height, scale, bulk and setback of new development are respectful of the context of the area.
8. It is our view that the proposal responds well to the design objectives of DDO11 and, for the most part, will achieve an acceptable outcome in terms of height, street interface, upper level setbacks and urban design features. Our concerns are about the interface with the residential properties to the west and about how the design provides for equitable development. We set out our findings as follows.

1. The maximum height of the building to parapet or roof is 13 metres with various services functions rising approximately 1.2 metres above that height. The services proposed on the roof are setback from the site boundaries and are relatively confined in extent and height comprising solar panels, screening, hot water units, burners and a lift overrun. We find none of the proposed roof top elements are of a size, nature and type of construction to warrant consideration as a roofed element in their own right. This finding of fact allows the roof top services, as proposed, without contravening the mandatory 13 metre building height limit required by DDO11 in accordance with Deputy President Dwyer's opinion on the question of law, as set out in Appendix A.
2. In addressing the potential need for roof services to be relocated, the applicant at the hearing showed a proposal that included some plant within the fourth level. Although not needed to comply with DDO11, we think this is a good design solution for a building which will be looked down upon by others in the area.
3. We find the 13 metre/four storey height proposed acceptable, in accordance with the mandatory height limit and we do not agree with submissions that the proposal should be reduced by one level.
4. It is our view that upper level setback of 5 metres to Aitken Street limits the visual presence of the fourth floor when viewed from the street. This outcome accords with the three storey street edge with upper level recessed 5 metres sought for the Aitken Corridor under DDO11. Furthermore the significant setbacks proposed for the upper level from both lane interfaces will achieve a graduated response to the secluded private open spaces of dwellings to the west and south and avoid this level being visually prominent.

1. The inclusion of dwellings facing the street at all levels together with a pedestrian entry provides activation and passive surveillance to the street, outcomes that accord with policies seeking a high standard of urban design and public safety. The elevated nature of the ground level dwellings allows for passive surveillance in a way that limits the need for high privacy screening, thereby achieving objectives relating to integration with the street. Individual entries to the ground level dwellings from Aitken Street are not required to achieve appropriate activation of this interface.
2. The placement of all parking off the rear lane avoids domination of the street façade by vehicle access and is a positive response to the public realm.
3. The design features to the Aitken Street elevation we consider appropriate. The hard edge construction is consistent with nearby development, including the heritage buildings, the three storey street wall will not overwhelm the streetscape and meets the height sought for a street wall in this part of the precinct. Future development of the vacant land opposite, on the north side of Aitken Street, will be restricted to four storey and will, in time, create a new character for this area in which the new building will be a 'comfortable fit'.
4. We do not agree with Mr McGauran's criticism of the framing element but rather think it will appropriately emphasise the three storey street wall height. Although the 'glass box' element at 10.6 metres on the east side of the elevation is slightly higher than the 10 metre street wall sought for the Aitken Corridor, it is confined in width, will add interest to the façade and provide a demarcation to the heritage building to the east.

1. The northwest corner of the development presents with a three storey wall to the lane with a short section of the upper level recessed 2 metres from the street. This creates a tall hard edge to this interface but one we consider is acceptable given the land on the opposite side of the lane is also included under DDO11. This land, 21 and 23 Ann Street, has a 10 metres (3 storey) height limit and it is likely that they will be developed with higher built form. This would contribute to the new context being created and limit visibility of the strong hard edge to the lane on the review site.
2. On the opposite side of the lane to the west of the site there are three attached dwellings (25, 27 & 27A Ann Street) that have habitable room windows and secluded private open space oriented to the review site. Opposite these sites the development presents with ground level balconies facing the lane. Again the slightly raised floor levels will allow views to the lane without the need for screening, achieving the dual aims of public safety through passive surveillance opportunities and a reasonable level of privacy for occupants. Although residents expressed concern about possible overlooking from the ground floor terraces, the standard[9] is met.
3. Above ground level the first and second floor are aligned with four balconies extending to the lane and the wall of the building setback 2.4 metres. We consider the presentation of this part of the elevation, where it is opposite the secluded private open spaces of 25, 27 and 27A Ann Street, unacceptable due to excessive visual bulk, as set out in our discussion on amenity impacts. It is the combination of a number of elements rather than simply height. These elements include the strong visual presence of protruding balconies with screens that extend over the lane, the extent of blank walls created by use of highlight windows and the breadth of the three storey elevation as viewed from sensitive spaces.

1. To the south the proposal presents with a two level wall above open car spaces and vehicle entry with the top level recessed. We find the built form to this interface is acceptable for the following reasons:
   • The top level setback to the south boundary is significant at 6.5 metre with a balcony to 4.9 metres. This setback combined with the confined width of the upper level element will limit its presence in views from the south.
   • The mass of the three level wall to the laneway is 'broken up' by the inclusion of a two storey element to the south west, the inclusion of two inboard balconies and varied external finishes.
   • The 7.4 metre wide lane provides a considerable separation from sensitive private open spaces.

1. We are satisfied that the appearance of the development to the east has been acceptably resolved. This is despite our concerns about the open accessway and the limited setback from the boundary.
2. The inclusion of the glazed element in the north east corner extends into the eastern elevation providing visual interest above the adjoining Stevedore Club. The remainder of the elevation is likely to be at least partly screened in the longer term given the four storey height allowed on land to the east.

1. Clause 55 of the Planning Scheme that applies to development up to and including four storeys does not specifically address equitable development[10]. We think the strategic direction for this precinct that contemplates significant change and intense built form, justifies consideration of likely development on adjoining sites.
2. Given we are rejecting the proposal for reasons relating to poor internal amenity and visual bulk impact to the west, we do not make specific finding on the issue of equitable development opportunities. Any future redesign will need to address this issue in a comprehensive manner and we raise the following concerns about the layout before us:
   • To the east the central recessed section of the building above ground level includes an open walkway that would impact on privacy of any windows or balconies proposed on the adjoining property. If the walkway was enclosed to address this issue, the setback of 2.2 metres provides a minimal contribution to any future light court.
   • To the west, the development is built to the boundary opposite 21 and 23 Ann Street with a 3.5 metre wide lane between. The reliance on the width of the lane to achieve the B17 side setback standard for the proposal limits the potential for development on 21 and 23 Ann Street to do the same. This is an aspect that should be considered in any future design.

DOES THE PROPOSAL RESPOND ACCEPTABLY TO HERITAGE VALUES?

1. It is Council's submission that the proposal fails to respond appropriately to heritage values through excessive height and bulk and inconsistent external finishes. Council also says there is adverse impact from the proposal on the adjoining individually heritage listed Stevedore Club at 25 Aitken Street and that the height and bulk of the proposal together with the sheer glass feature on the north east corner of the proposal will overwhelm this building.
2. Respondent objectors have concern about adverse impact to the heritage values of the precinct. They say it is a poor design response to the individually listed heritage buildings nearby including the adjoining Stevedore Club, the former Telegraph Hotel and former Britannia Hotel. Attention was drawn to signage on the western wall of the Stevedore Club which they said would be screened by the proposal development and detract from the heritage asset.
3. The applicant says that this section of Aitken Street does not have a strong heritage character and can readily accommodate substantial built form without adversely affecting the wider precinct. The proposal has had appropriate regard for the adjoining and nearby individually listed heritage buildings in the applicant's submission.
4. Mr Raworth's evidence is that the three storey plinth form responds in height to the tall two storey forms of the nearby former Telegraph and Britannia Hotels. Although taller than the adjacent Stevedore Club, the absence of consistent height in the street and the recessed upper level make the proposal acceptable. He says the proposed zero street setbacks to the street and side boundaries will not appear out of place in a context where boundary construction is evident and the use of modern materials will clearly distinguish the building as contemporary with the neutral colouring avoiding competition with the neighbouring significant building.
5. The review site is within Heritage Overlay HO8, the Government Survey Heritage Precinct, which covers a relatively large area of Williamstown. The statement of significance for the precinct refers to the historic significance of the area for its demonstration of early settlement associated with the port, socially significant for the understanding it provides of lifestyle in the 19th century and aesthetically for its intact and cohesive groups of 19th and early 20th century buildings.
6. There are three individual heritage overlays nearby. The adjoining Stevedore Club (HO35), the former Telegraph Hotel diagonally opposite (HO43) and the former Britannia Hotel at the corner of Aitken and Kanowna Streets (HO162).
7. The objectives and provisions of the heritage overlay seek to ensure new development does not adversely affect the significance of heritage places and to conserve those elements which contribute to the significance of heritage places. There are a number of guidelines that must be considered in making a decision on a proposal under the heritage overlay including any applicable statement of significance, whether the location bulk, form or appearance of the proposed building will be in keeping with the character of the adjacent buildings or adversely affect the significance of the heritage place.
8. State and local policy place emphasis on protecting places of heritage significance and ensuring new development responds positively to the valued character of heritage places and precincts. Local policy seeks new development to maintain and enhance the setting of heritage places and precincts by ensuring infill development is visually recessive and compatible in scale, siting, design, form and materials with the character of the heritage place or precinct. Specifically for the Government Survey area, that includes HO8 and other overlay areas, objectives seek to retain the distinctive cultural heritage significance of this precinct and encourage infill development that has respect for the valued characteristics of the precinct.
9. Local policy specifies that regard is to be paid to the Guidelines for Infill Development in Heritage Areas in Hobsons Bay 2006, an Incorporated document in the Planning Scheme. These Guidelines aim to

To ensure that new development is of a high quality design that creatively interprets and responds positively to the historic context provided by the heritage place or precinct.

To ensure non-contributory buildings are replaced by development that responds positively to the historic context provided by surrounding heritage places.

To ensure new development becomes a valued addition, which complements the aesthetic qualities of a heritage place or precinct.

To ensure new development does not distort historic evidence of heritage places by copying or reproducing historic styles or detailing.

To ensure new development does not visually dominate a heritage place or area.

To ensure new development responds positively to special features such as views, vistas, significant vegetation and landmarks.

1. A permit is required for demolition under HO8. The existing building on the land has no heritage value, a view that no party disputed and we have no concerns about its demolition.
2. Although the proposal will introduce a new built form that is higher than nearby development and contemporary in appearance, we consider it an acceptable response to heritage values. We say this for the following reasons.
3. Although this section of Aitken Street is within the HO8 precinct, it is an area undergoing change and that change is sought by DDO11. This is reflected in the recently cleared sites opposite the review site and to the east where new development of between three and ten storeys has been approved or is anticipated.
4. The area to the west of the review site has limited heritage significance although included in HO8. It includes, on the opposite side of the lane, four attached two storey dwellings of relatively recent construction (at 25-29 Ann Street). Two further sites at 21 and 23 Ann Street, the latter on the corner of Aitken Street, contain buildings of no heritage significance and are included in DDO11 with height to 3 storeys (10 metres) anticipated.
5. Thus the immediate context to the north and west of the review site has limited heritage assets and creates a setting very different from much of HO8 which is characterised by single and double storey development from the 19th and early 20th century. This allows consideration of a built form that is different to what might be acceptable elsewhere in the precinct.
6. There are sensitive heritage interfaces to the east and the south and there are individually significant heritage buildings at either end of this section of Aitken Street. We consider the proposed development has been designed in manner that is respectful of these interfaces and will avoid adverse impacts on heritage values.
7. The Stevedore Club, to the immediate east, although a single storey, building, presents to Aitken Street with a form that is imposing arising from zero lot line siting, a classically derived façade with a rendered finish and a decorative balustrade to the parapet that reaches a height of approximately 6 metres. It is setback from the review site by 3.5 metres with a roller door to the street enclosing that setback.
8. We think the three storey street presentation of the proposal flanked by a higher glazed element to the eastern boundary provides an acceptable transition in scale and form to the Stevedore Club, eased by the space between the buildings. The height also responds appropriately to the tall two storey former hotels at each end of this section of Aitken Street. We agree with Mr Raworth that the setback of the top level from the street frontage and the side elevations reduces the prominence of the building in views along Aitken Street. From our inspection, our assessment is that the existing signage on the west side of the Stevedore Club would remain visible.
9. We find the construction hard to the street edge is consistent with the Stevedore Club and the two nearby former hotels.
10. This section of Aitken Street will contain individually significant heritage buildings as stand alone elements in a modern street rather than a heritage streetscape containing buildings of consistent scale and materials and this setting allows the opportunity for interpretive architectural expression with varied materials. We consider that the proposed materials will clearly distinguish the development as a contemporary insertion in the street and agree that the neutral tones will not compete or overwhelm the neighbouring significant building.
11. To the south there are weatherboard dwellings, mainly single storey facing Cecil Street, that are part of the Cecil Street Heritage Precinct within HO1 and of local historic, social and aesthetic significance. The separation of the site from the rear of these properties provided by the 7.4 metre wide lane and the relatively generous setbacks of existing dwellings from the laneway will limit the visual connection of the proposed development with these dwellings. We are satisfied the presence of a four storey building with the upper level recessed some 6.5 metres from the southern boundary will not dominate the heritage setting of the Cecil Street properties or cause detriment to the heritage values of that precinct.

ARE THE VEHICLE ACCESS AND CAR PARKING ARRANGEMENTS APPROPRIATE?

1. The plans show car parking in two locations, both accessed off the rear laneway. At ground level four covered car spaces are proposed for visitor use. At basement level a total of 26 spaces are proposed for residents of which 18 are in independent stacker units and 8 are at grade. The allocation proposed would result in one car space for 26 of the 27 dwellings and four car spaces for visitors.
2. Council says the total number of car spaces is acceptable but submits there should be one car space per dwelling and any shortfall in numbers should be associated with visitor car parking.
3. Respondent objectors raised a number of concerns about parking and traffic including:
   • The required parking provision is not met. Some future residents will have more than one car and some will prefer not to use car stackers. These factors will combine to increase pressure on limited on-street parking.
   • Cumulative impact of shortfalls in onsite parking given that on-street car parking nearby is generally at capacity and having regard to the additional parking demand generated by the approved and proposed development nearby.
   • The use of a narrow, one way, unmade lane for all vehicle access is impractical, will result in vehicle conflict, is unsafe for pedestrians and will not provide for emergency vehicle access. Vehicle access should be taken via Aitken Street utilising the existing vehicle crossing.
   • The use of the laneway has the potential to restrict existing vehicle access to rear yards and result in adverse noise impacts to residents of nearby dwellings.
4. It is the evidence of Ms Marshall that the level of traffic likely to be generated by the development will be 135 vehicle movements per day with 14 of those during the am and pm peak hours. She said this level of traffic activity can be accommodated by the surrounding road network. It was her evidence that the sections of the laneway adjacent to the site should be sealed. The car parking demand assessment undertaken by Ms Marshall indicated the proposed development will generate a car park demand for 25 resident spaces and 3 visitor spaces. On the basis of that assessment, the availability of alternative transport modes and the proximity to recreational and retail facilities, Ms Marshal said the proposed parking provision is satisfactory.
5. The Planning Scheme specifies a requirement of one car space per one and two bedroom dwelling and one visitor car space per five dwellings. Applying these ratios results in a requirement for 27 resident spaces and five visitor spaces. A permit can be granted to allow a reduction in the provision of spaces and in this case we find a reduction of two car spaces is warranted.
6. The 2011 Census data[11] on car ownership for the Williamstown area indicates average car ownership is 0.79 per one bedroom dwelling and 1.04 per two bedroom dwelling. Based on these figures, the development would be anticipated to generate an average resident parking demand for 25 car spaces. We consider the 26 spaces proposed will cater for the likely demand.
7. The site is well served by public transport with the railway station and a bus service within 400 metres of the review site allowing future residents transport options other than private vehicle. Furthermore the site is within proximity to services and facilities that enable access by walking and cycling.
8. The reduction in provision of visitor car spaces by one is supported by parking demand surveys referred to by Ms Marshall[12] that indicated a peak demand for visitor parking of 0.1 spaces per apartment during evenings and weekends and 0.06 per apartment during weekday business hours. Based on these surveys the proposal will generate an evening and weekend peak demand for three visitor spaces and a weekday peak demand for two car spaces. The four spaces provided on site will meet that likely demand.
9. Supporting our view on the acceptability of waiving visitor car spaces is the availability of on-street term parking in the vicinity of the site. Ms Marshall's evidence referred to parking surveys[13] taken approximately one year apart. Although the two surveys showed different results, both support the conclusion that there is on-street car parking available in proximity to the site suitable for visitor use. The most recent survey in June 2016 showed that of the 106 on-street car spaces within close proximity of the site (which are restricted to two hour parking during business hours and unrestricted at other times) a minimum of 38 vacant spaces were available on-street on Friday and a minimum of 37 vacant car spaces on Saturday.
10. Car stackers are becoming an increasingly common form of car accommodation and we think future residents, who will become accustomed to their operation, will not choose on-street parking over secure, under cover and convenient parking.
11. We find the vehicle access arrangements appropriate subject to the sealing of the laneways adjacent to the review site. The likely total and peak hour volumes of traffic (135 daily movements and 14 vehicle movements during am and pm peak hours) are relatively low and we are satisfied that this level of traffic can be accommodated in the laneway and surrounding road network[14], a view shared by Council traffic department. While there may be times where conflict occurs, the low volumes mean they will be limited in extent and number. Further the 7.4 metre wide east-west laneway that allows for vehicles to pass combined with the option of heading north to Aitken Street or south to Cecil Street provides appropriate means to deal with any conflicts that may arise from simultaneous vehicle movements or vehicles exiting existing properties.
12. We consider access to the premises for emergency services is similar to many apartment buildings and is satisfactory. We think the low speed and low traffic volume environment of the laneway will avoid adverse safety impacts to pedestrians. There will be increased noise from vehicles using the laneways but this is not an unreasonable outcome on land set aside for access and we are not persuaded that the noise impacts of residential traffic will be unreasonable.
13. The use of the laneways for vehicle access we consider an appropriate design response for this site and one that is encouraged under local policy[15]. Use of the Aitken Street frontage for vehicle access would have a negative impact on that streetscape and be contrary urban design outcomes that seek to activate street frontages though orientation of apartments directly to the street at ground level and avoid domination of the street frontage by vehicle access.

1. For the reasons explained above, the decision of the Responsible Authority is affirmed. No permit is to issue.

1. Mark Dwyer, Deputy President, was nominated pursuant to Clause 66(1)(b) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), as the member who is a legal practitioner to provide an opinion on the question of law arising in the proceeding.

[1] Does the operation of the mandatory height limit of 13 metres pursuant to clause 4.0 in the table to Design and Development Overlay Schedule 11 of the Hobsons Bay Planning Scheme prevent any roof structures or elements over that height limit such as a lift overrun, water tanks, screening and solar panels (and if so which ones)?

1. The proposed development that forms the subject matter of this proceeding is within a precinct covered by the Design and Development Overlay Schedule 11 (DDO-11) under the Hobsons Bay Planning Scheme, and more specifically in an area known as the 'Aitken Corridor' within the DDO-11.
2. Clause 1.0 of DDO-11 contains a plan which includes the Aitken Corridor area, with a notation for that area indicating '13m Building Height'.
3. Clause 4.0 of DDO-11 contains the following provision:

No permit may be granted to allow a building that exceeds the applicable maximum building height specified in the Table to this schedule.

The height of a building or works is the height measured at its highest point above the permanent footpath at the centre of the site frontage. If there is no footpath, the natural surface level at the centre of the site frontage is the base level.

1. The relevant Table to the DDO-11 Schedule makes specific provision for the Aitken Corridor area. Under the heading 'maximum building height' appears the words '13 metres'.
2. As I understand it, the Revision C plans for the proposed development before VCAT comprise a building where the primary roofline sits at or below 13m, but where a number of service installations (such as a lift overrun, water tanks or hot water units, burners, screening and solar panels) extend above 13m.
3. The Council and a number of objectors contend that the mandatory height control in DDO-11 is an absolute control that constrains any structural elements or service installations from exceeding the 13m limit. The permit applicant contends that the 13m limit does not include service installations of the type proposed here.
4. Given that the Tribunal constituted for the proceeding did not include a legal member, the parties have requested that this issue be framed as a question of law and determined pursuant to clause 66(1)(b) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998. The Council, permit applicant, and a number of objectors have made written submissions on the question. I have considered each of those submissions.

1. Clause 71 of all VPP-based planning schemes, including the Hobsons Bay Planning Scheme, provides that a term has its ordinary meaning unless defined in the planning scheme, the Planning and Environment Act 1987 ('P&E Act'), or the Interpretation of Legislation Act 1984. A term defined in these Acts applies unless it is defined differently in the planning scheme.
2. A 'building' is not defined in the planning scheme, but is defined in the P&E Act to include a structure and part of a building or structure, and 'service installations and other appurtenances of the building'.
3. The term 'building height' is expressly defined in clause 72 of all VPP-based planning schemes as 'The vertical distance from natural ground level to the roof or parapet at any point'. The term 'ground level' is defined in the same clause as 'The natural level of a site at any point'.
4. Given the clear wording of clause 71, and the definitions in the P&E Act and the planning scheme, I do not agree with the assertion by some objectors that regard should be had to the definition of a building under the Building Act 1993 or by reference to other definitions, concepts or standards of what may comprise a building that are not directly related to planning.
5. Contrary to a view expressed by the Council and some objectors, I do not consider that there is any inconsistency in the definitions of 'building' in the P&E Act and 'building height' in the planning scheme. The first assists in determining what comprises a building - primarily for the purpose of the general application of planning controls for 'buildings and works'. The second assists in determining how building height is calculated - primarily for the purpose of the application of mandatory and discretionary height controls. They are related but different concepts for planning purposes. Accordingly, although a building (as defined) includes any rooftop service installations, the height of the building is calculated from ground level to the roof or parapet, and the height calculation thus excludes service installations or other elements above the roof or parapet.
6. As a matter of general principle, this outcome is also one of practicality and common sense, and accords with common planning practice. The height of a building, particularly for planning assessment purposes, is essentially concerned with the primary built structure. It would be impracticable and incongruous for building height to be determined, for example, by reference to a television antenna sited on the rooftop. I agree with the permit applicant that building heights are simply not measured on such a basis. The definition of 'building height' is clearly intended to avoid such an anomalous outcome, and references the upper measurement point as being the roof or parapet, rather than the antenna that sits above the roofline.
7. I consider that the same applies to other common service installations, such as a lift overrun, water tanks, heating or cooling units, or solar panels. Although some of these service installations are perhaps a little larger in size, there is no difference in principle. The definition of 'building height' still references the upper measurement point of the building as being the roof or parapet, rather than the service installation above.
8. However, the situation may be different for a structural element above the main roofline that contains its own roof, such as a canopy over a rooftop terrace, or an enclosed and roofed stairwell structure providing access to the roof, or a large plant room within which other service elements are housed. The definition of 'building height' references the vertical distance to 'the roof ... at any point', and may therefore include the highest point of any material roofed element. This is perhaps a contextual issue that I do not need to finally resolve here.
9. Of the specific structures or service installations mentioned in the question of law (lift overrun, water tanks, screening and solar panels), the one that could potentially create the greatest level of debate in this regard is the lift overrun. The lift overrun is perhaps more a part of the main physical structure of the building, rather than the other service installations such as water tanks or solar panels that are more in the nature of an appurtenance to the building. In the ordinary case, there is still ultimately no real difference in principle given that the definition of 'building height' still references the upper measurement point of the building as being the roof or parapet. It may nonetheless be the case that a particular lift overrun is of such a size or nature or type of construction, or housed in such a way, that it should be treated as a roofed element in its own right, such that the definition of 'building height' should be referenced to the vertical distance to the roof of that element. Again, this is a contextual issue having regard to the plans for a particular development. It is also primarily a question of fact for the Tribunal as constituted, rather than a question of law for me.
10. The outcome I have set out above means that, in the ordinary case, service installations above the roofline are not included in the calculation of building height for the purposes of determining whether a building meets a mandatory or discretionary height limit under a planning scheme. That does not mean that any planning impacts of the service installations are completely excluded from assessment. For example, although some service installations are exempt from a permit requirement in some circumstances, by reference to clause 62 of all VPP-based planning schemes, there may be other circumstances where the location or visual impact of a particular service installation is relevant to an overall planning assessment of whether a building should be permitted and/or whether the service installation should be relocated or conditioned in some way.
11. This outcome is also consistent with clause 15.01-2 of the State Planning Policy Framework that states that: 'Any rooftop plant, lift overruns, service entries, communication devices, and other technical attachment should be treated as part of the overall design'. This policy appears in the SPPF only as a design principle under the heading 'architectural quality', for matters not covered by clauses 54, 55 or 56. Those latter clauses include specific standards and objectives in relation to building height, but do not refer to rooftop surface installations.
12. I have indicated above that my comments apply 'in the ordinary case' to the measurement of building height, having regard to the definition of 'building height' in clause 72. A further question here is whether there is anything in the particular control in DDO-11 in the Hobsons Bay Planning Scheme that evinces a contrary intention, or warrants a different outcome.
13. Here, clause 4.0 of DDO-11 states that the height of a building or works is the height measured at its highest point above the permanent footpath at the centre of the site frontage and, if there is no footpath, the natural surface level at the centre of the site frontage is the base level.
14. The Council contends that this is a more specific and more recent planning scheme provision, that introduces a different methodology for the measurement of building height that overrides the more general definition of 'building height' in clause 72. It introduces a fixed and specific point for the calculation of building height, and it is contended that this difference must be given some meaning having regard to the advisory committee report that led to the introduction of the DDO.
15. I do not agree with the Council contentions for reasons including the following:
    • Although the Council relies on broad principles of statutory interpretation (i.e. that clause 4.0 of DDO-11 is more specific and more recent than the general definition in clause 72), the Council omits reference to s 7(4)(b) of the P&E Act which would likely lead to the opposite view. If resort needs to be had to s 7(4)(b) to resolve an inconsistency, a State standard provision such as clause 72 would prevail over a local provision such as clause 4.0 of DDO-11.
    • Moreover, even ahead of resorting to such principles of statutory interpretation or s 7(4)(b), s 7(4) of the P&E Act more generally requires that, if there appears to be an inconsistency between different provisions of the planning scheme, the scheme must so far as practicable be read so as to resolve the inconsistency. Under more modern approaches to the construction of regulatory instruments, this involves a purposive approach. Specifically, in relation to the construction of the planning scheme, I consider that it also involves the recognition that planning scheme provisions are commonly drafted by and for non-lawyers without the technical precision of an Act of Parliament.
    • Whilst the second sentence of the height control in clause 4.0 refers to the height of the building or works (by reference to the height above the footpath at a specified point etc.), the active part of the control is in the first sentence: 'No permit may be granted to allow a building that exceeds the applicable maximum building height specified in the Table to this schedule'. There is no reference to 'works' in this part of the control, and nothing to suggest that the State standard definition in clause 72 should not apply to the reference to 'building height'.
    • There is nothing in the advisory committee report that led to the introduction of DDO-11 that deals expressly with the issue of rooftop service installations in the recommendations concerning the maximum building height.
    • The recommended wording, now reflected in clause 4.0 of DDO-11, does clearly specify the lower point in the measurement of building height as being a single point above the permanent footpath at the centre of the site frontage. In context, that is not inconsistent with the definition of 'building height' in clause 72 and, even if inconsistent, does no more than qualifies the reference to 'any point' under the general definition to a specific point relevant to the specific development under the DDO.
    • There is nothing in the reference in clause 4.0 to the 'highest point' above this fixed lower measurement point that evinces an intention that the upper measurement point in the calculation of the building height is anything other than the roof or parapet above that point. Moreover, in any event, the service installations that the Council and the objectors contest as exceeding the height limit are not directly above this fixed point.
16. I also agree with the permit applicant that, having regard to the design objectives and built form outcomes discussed by the advisory committee as a basis for the introduction of the mandatory height controls under DDO-11 for the Aitken Corridor area, these height controls have been introduced to ensure that new development is respectful of the context of the area and this is sufficiently achieved or influenced by the roof or parapet sitting within the maximum height limit. The objectives and outcomes are not sensitive to the prospect of a service installation sitting above the building roofline and above this maximum building height. There is nothing to suggest that the ordinary concepts of 'building height' (under the definition in clause 72) were not intended to apply. Indeed, I suspect the more likely scenario is that the advisory committee, the Council and/or Minister did not expressly turn their mind to this issue in the consideration, adoption and approval of the amendment to the planning scheme that implemented the DDO.
17. The Council refers to other DDO schedules under the Hobsons Bay Planning Scheme, one of which (DDO-8) contains the words: 'Roof and other ancillary works may exceed the maximum building height'. There are occasional examples of specific references to service installations in other local provisions in planning schemes. The suggestion is that, given the drafters of planning schemes have sometimes turned their minds to this specific issue, the absence of any express exemption in a DDO (including DDO-11 here) evinces an intention that rooftop service installations are otherwise included in a DDO measurement of building height. I do not consider that this outcome necessarily follows at all, having regard to the definition in clause 72. It is also possible that the wording in some DDOs that specifically envisages certain rooftop works exceeding the maximum building height has simply been included for clarification, rather than evincing any intention that common service installations would otherwise have been subject to the maximum height control. As I have indicated earlier, one needs to be careful not to adopt an unduly legalistic approach to the interpretation of a planning scheme provision drafted by and for non-lawyers.
18. In my opinion, a common sense and purposive construction of the maximum height limit in clause 4.0 therefore still leads to an outcome whereby the upper measurement of the 'building height' is the roof or parapet at the relevant point, rather than any service installation above the roofline. This applies to all of the examples of service installations included in the question of law posed for my consideration, namely a lift overrun, water tanks, screening and solar panels, unless the lift overrun is of such a size or nature or type of construction that it should be treated as a roofed element in its own right, forming part of the building, such that the definition of 'building height' should be referenced to the vertical distance to the roof of that element. From the revised plans in this proceeding, it is not apparent to me that the lift overrun would fall into this category. However, as I have indicated, that is a question of fact for the Tribunal as constituted having regard to the plans before it.

1. My opinion on the question of law is therefore as follows:

The operation of the mandatory height limit of 13 metres pursuant to clause 4.0 in the table to Design and Development Overlay Schedule 11 of the Hobsons Bay Planning Scheme does not prevent any service installations or elements over that height limit such as a lift overrun, water tanks, screening and solar panels, unless the service installation or element (such as the lift overrun) is of such a size or nature or type of construction that it should be treated as a roofed element in its own right, forming part of the building, such that the definition of 'building height' should be referenced to the vertical distance to the roof of that element.

[1] We have considered the submissions and evidence of all the parties and witnesses that appeared, the statements of grounds submitted and all the exhibits tendered by the parties. We do not recite or refer to all of the contents of those documents in these reasons.

[2] On the substituted plans the laneway width is shown as varying between 3.46 and 3.6 metres.

[5] Noting a permit issued for a three storey development containing offices and dwellings at 23 Ann Street has now lapsed.

[8] The Hobsons Bay Neighbourhood Character Study December 2002 which is a policy reference at clause 22.10.

[10] This is in contrast to the Design Guidelines for Higher Density Residential Development, Department of Sustainability and Environment, 2004, referred to in clause 15.01-2 of the Planning Scheme and used in assessing the design and built form of residential development of five or more storeys.

[11] Provided in Ms Marshall's evidence.

[12] Surveys referred to include those undertaken by Cardno of apartment developments at 127 & 147 Beach Street, Beacon Cove conducted over a 36 hour period from 6am Friday 19th to midnight Saturday 20th November 2010.

[13] Conducted on Friday 19 and Saturday 20 June 2015 and Friday 17 and Saturday 18 June 2016.

[14] Noting we were advised that Aitken Street, between Ann and Kanowna Street, is proposed to be formalised with a road pavement of 5.5 metre width and footpaths on both sides as part of the Nelson Place Stage 1 development.