Mr N J Tweedie, Barrister. He called the following witness:

• Ms Colleen Peterson, town planning consultant, Ratio.
• Mr Mark Sheppard, urban designer, David Lock & Associates.

It is proposed to construct a ten storey mixed use building above a five level basement car park. The development includes:

• 126 apartments comprising 63 one bedroom, 16 one bedroom plus study and 47 two bedroom apartments. Ground floor office and commercial space [retail/cafe] space is proposed.
• 152 car spaces including 12 car stackers providing for 22 car spaces, each apartment allocated one car space, 13 car spaces allocated to visitors and 13 spaces allocated to the office and café. 20 bicycle spaces are provided.

The building is a height of 30 metres (32.08 metres for lift/overrun).

The proposed development is a contemporary design using a range of materials including render, natural and textured concrete, galvanised metal, rusted metal, powdercoat, stone and glazing.

Application under Section 77 of the Planning and Environment Act 1987.

Clause 34.02-1 A permit is required to use the land for a dwelling and retail purposes.

Clause 34.02-4 A permit is required to construct a building or construct or carry out works.

Clauses 10, 11, 13, 15, 16, 18, 21.02, 21.04, 21.07, 21.08, 22.03, 22.08 and 65.

The site is located on the western side of Montrose Street, between Montrose Place to the south and Lilydale Grove to the north, Hawthorn East.

The site comprises of two separate lots, which have a frontage to Montrose Street of 51.45 metres, a southern boundary of 24.69 metres, a western boundary abutting a narrow laneway of 51.51 metres, a northern boundary of 24.69 metres and a total site area of 1271 square metres.

Lilydale Grove is located directly north of the review site. It provides vehicle access to the adjoining property at 2A Montrose Street, as well as pedestrian access to the Auburn Railway Station.

Adjoining to the west of the site is a 1.37 metre wide roadway easement that extends between Lilydale Grove and Montrose Place.

Beyond the easement is 2A Montrose Place, a 5-6 level apartment building. Vehicle access to this building is provided via Lilydale Grove to the north. The building adopts minimal setbacks from its eastern boundary which range between 1 metre to 2.8 metres, with balconies extending to the boundary at first floor level and to within 600mm at the upper levels. A number of the apartments have east facing balconies that overlook the subject site.

I conducted an accompanied site inspection on 15 May 2012.

Asolo Developments Pty Ltd v Boroondara CC [2012] VCAT 203.

1. This case involves an application to develop the site for a ten storey mixed use building above a five level basement car park. The development comprises 126 apartments, an office, café and 152 car spaces.
2. The site enjoys planning policy support for more intensive development in the following way:
   • Clauses 11 and 16 seek for new housing to be located in or close to activity centres, employment corridors and at other strategic redevelopment sites that offer good access to services and transport[2].
   • Clause 21.07 seeks to increase residential development opportunities (including higher density development) in and around commercial centres and other strategic locations. It further seeks to encourage a high standard of residential development whilst protecting existing residential stock.
3. Council and the Permit Applicant took me to proposed Amendments C107 and C108. In summary, the amendments seek to:
   • Implement the built form outcomes of the Activity Centres Strategy [ACS].
   • Apply a Design and Development Overlay [DDO20] to the site,
   • Replace a number of policies within the Municipal Strategic Statement [MSS] and Local Planning Policy Framework policies including clause 22.10 [Neighbourhood Centre and Enterprise Corridors Land Use Policy] and clause 22.12 [Neighbourhood Centre and Enterprise Corridor Urban Design Policy].
   • Place the site within an Enterprise Corridor.
4. The site is identified within ACS as part of an Enterprise Corridor. The site is also identified[3] in an area with an overall height of eight storeys/30 metres. The ACS envisages a mixed use development with retail, showrooms and/or office uses at ground level with offices uses and/or residential uses on upper levels. I need to comment on the weight to be given to the ACS. This issue has been discussed in several Tribunal decisions, and the observations made in Asolo Developments Pty Ltd v Boroondara CC[4] are relevant here. In that case, Members Martin and Deidun made the following comments:

[15] In summary, we accept that it is appropriate that we place a modest degree of weight on the ACS document, in exercising our discretion. In particular, the ACS document provides some assistance at least in terms of highlighting some of the key design issues that arise in this type of proposal and provides one approach to how to deal with them.

a. the ACS has not even got to the Ministerial authorisation stage; and

b. hence we do not know how it might be received by a panel, or for that matter the Planning Minister.

1. I adopt these observations and note that I consider the ACS to be helpful in providing the future strategic thinking and direction of the Council. I further note that based on the ACS, Council has no objection to the proposed ten storey building height.
2. In summary, the site enjoys policy support for higher density development. It has the attributes of being located close to the Auburn Road activity centre and the Auburn railway station and is located within a nominated Enterprise Corridor. The height of the building is acceptable in principle as it is consistent with the proposed provisions of the ACS.
3. Council and the Permit Applicant further agreed on the following:
   • The use of the building for residential, office and retail uses is appropriate;
   • There is adequate provision of car parking spaces;
   • Vehicle access is acceptable subject to some design conditions;
   • The building is of high architectural quality;
4. I note that the objector Mr Wotherspoon maintained his objection to insufficient parking and traffic movement increase as identified in his statement of grounds.
5. Council refused the proposal on one ground:

The development will have an unreasonable impact on the amenity of the dwellings at 2A Montrose Place, Hawthorn East and the dwelling at 2 Lilydale Grove, Hawthorn East by way of visual bulk, reduced solar access and acoustic privacy.

1. The impact of the development on the amenity of these properties is the key issue in this case.

1. No. 2 Lilydale Grove is a single dwelling opposite the review site on the east side of Montrose Street. It is currently being redeveloped which has resulted in a two storey extension with built form extending the entire rear yard and incorporating a roof top terrace/private open space. Council put to me that the proposal has not had sufficient regard to its impact on the amenity of this property by way of visual bulk, reduced solar access and acoustic privacy.
2. This dwelling is located within a Business 2 Zone and within an area where Council's strategic thinking is for higher density development. Council submitted that the proposed ten storey height accords with the strategic context of the subject land, but maintained a concern that the treatment of the eastern elevation has not sought to minimise the visual impact of the building on 2 Lilydale Grove. I do not share Council's concern. This dwelling has been developed with its orientation to the north towards Lilydale Grove not to its west towards the subject site. Having regard to the physical and built form context, the amenity expectations of the dwelling's occupants cannot equal those of a dwelling in a residential hinterland.
3. As to the level of overshadowing to this property, I am persuaded by the evidence of Mr Sheppard that the level of overshadowing from the proposed building is acceptable He demonstrated that the proposed development will overshadow 2 Lilydale Grove from approximately 1.30 pm onwards at the equinox. The solar access to the property will be unaffected for 4.5 hours after 9am. I make the observation that the private open space is an elevated terrace with a north orientation. Therefore, I consider this impact acceptable given the zoning and physical context of the site.
4. As to the matter of acoustic privacy, I do not share the Council's concern. It is difficult to understand how Council can have a vision of encouraging higher density development and then be concerned about noise from balconies. There have been several permits issued by Council and the Tribunal for similar development in the immediate area. There may be a limited impact on the acoustic privacy of the neighbourhood arising from the use of the balconies, but this is to be expected in an area of higher density living and taller buildings. It is not a reason to refuse the proposed development.

1. In her evidence, Ms Peterson conceded that the relationship of the proposed building with its western neighbour is 'challenging', and I agree. The building at no. 2A Montrose Place is a five storey apartment building (above basement) with approximately six apartments on each level with a direct interface with the subject land. It has east facing windows and balconies.
2. As detailed earlier, there is an easement separating the proposed building and this property.
3. The concern is the impact on the east facing windows and balconies of this adjacent development. The parties put to me that the concern is not a daylight issue, but one of access to sunlight and I agree.

1. The apartment building at 2A Montrose Place is set back approximately 1.3 metres from its eastern boundary, with balconies encroaching to within 600mm of the boundary. The resulting space between the two buildings will be approximately 6.8 metres between walls and 4.2 metres between balconies.
2. Mr Sheppard submitted that due to the orientation, the east facing apartments currently receive within the order of one and a half to two hours of sunlight at the equinox. He further submitted that from midday, their solar access ceases.

Proposed impact on sunlight to east facing balconies on 2A Montrose Place

1. Mr Sheppard submitted that according to the 3D shadow diagrams, the majority of the east facing apartments at 2A Montrose Place would be overshadowed by the proposal until somewhere between 11am and 11.30am at the equinox. Most of the east facing apartments would receive less than one hour of sunlight at the equinox and a small number of apartments at lower levels will receive less than half an hour.
2. Mr Sheppard found this an unacceptable outcome and recommended the deletion of that part of the development which extends to the western boundary at its northwest corner from the 4th floor upward. This has the effect of reducing the visual impact on the neighbouring dwellings as well as improving the overshadowing to their balconies. As a result of these changes, almost all of the east facing apartments would receive at least 1 hour of sunlight at the equinox. He further considered that this is an acceptable level of solar access for east facing apartments in an area designated for significant intensification.
3. Ms Peterson in her evidence submitted that the proposed development is acceptable as submitted. She further put to me that six metres[5] is an acceptable separation distance between the buildings. This distance is based on her experience with managing other projects in Lygon Street rather than any quantifiable outcome.
4. I am not convinced that even with Mr Sheppard's recommendation to delete that northwest corner of the building that a reasonable level of amenity of the adjoining east facing apartments will be provided or received.
5. Ms Piskuric put to me that in respect of this issue, the provisions of clause 55 should be applied, and I note that they are referenced at Design Suggestion 2.6.2 of the Guidelines for Higher Density Residential Development [the Guideline's]. I accept the submission of Mr Tweedie who submitted that this is not a reasonable position. It is difficult to reconcile the strategic vision for higher density development and the site's nominated location within a future Enterprise Corridor which permits up to ten storeys in height with the expectation that the provisions of clause 55 would be applied. These would be unlikely to be achieved within this area.
6. What I find more useful in this case is to utilise to the Guidelines. These refer to the concept of 'sharing development opportunities'. Mr Tweedie put to me that in approving the development at 2A Montrose Place, Council must have contemplated the effect of future development. This may or may not have occurred, but what we have now is an existing situation where the development of the site is constrained or tempered by the existence of the building at 2A Montrose Place.
7. The Guidelines address the issue of the relationship to adjoining buildings.

Objective 2.5: To ensure building separation supports private amenity and reinforces neighbourhood character.

Design Suggestion 2.5.3: Use side setbacks where they are important for private amenity, e.g. for solar access, access to the rear of the lot, or to avoid unreasonable impacts on neighbouring properties and public spaces.

Design Suggestion 2.5.3: Use side setbacks where they are important for private amenity, e.g. for solar access, access to the rear of the lot, or to avoid unreasonable impacts on neighbouring properties and public spaces.

Objective 2.6: To ensure areas can develop with an equitable access to outlook and sunlight.

Design Suggestion 2.6.1: Consider the possible future development of adjoining sites and allow, as best as possible, or an equitable spread of development potential throughout the area.

Design Suggestion 2.6.2: Maintain sunlight and daylight access to adjoining private open spaces of dwellings in accordance with clause 55 of planning schemes.

Design Suggestion 2.6.3: Provide spacing between taller buildings to provide outlook, daylight access and privacy for residents.

1. I consider that it is a reasonable expectation that the east facing apartments maintain the level of sunlight that they currently receive. They receive limited sunlight at present, and whilst it is the expectation that the area will develop with taller forms and higher density development, there is recognition by the Guidelines that spacing between buildings should be provided to maintain sunlight and daylight access.
2. To improve the access to sunlight to the east facing balconies of the adjacent building, an increase in the setbacks of the west elevation is required. To what extent, is unknown. I have considered the setbacks put forward by Ms Piskuric (9 metres) and Ms Peterson (6 metres) but do not accept these arbitrary distances in the absence of any real justification as to what impact the setbacks have on the east facing balconies.
3. The Guidelines seek to ensure that areas can develop with an equitable access to outlook and sunlight.
4. I have contemplated refusing a permit, but have decided to offer the Permit Applicant the opportunity to respond to my concern by preparing an amended set of plans addressing the impact of overshadowing to the east facing balconies. The amended design must modify the western setbacks of the proposed building to ensure that the east facing apartments of 2A Montrose Place maintain their current level of sunlight.
5. I wish to emphasise to the Permit Applicant that this interim order provides an opportunity for the Tribunal's concerns to be addressed, and this order is not an opportunity for further changes (other than consequential changes) to be made to the design.
6. The orders that I have prepared also provide the parties with a date for a further hearing to present submissions on the proposed changes.
7. In the event that I find the amendments to be satisfactory, I will order that a permit be granted subject to appropriate conditions. Conversely, should I find the amendments do not address my concerns, I will affirm the Council's decision and refuse to grant a permit.

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

[2] Council submitted that whilst the site is not located within a nominated activity centre, it is identified as being within an Enterprise Corridor under the Activity Centre Strategy and is in close proximity to fixed rail.

[3] The site is identified in Area 4 on the Built Form Areas Map 1.

[4] Asolo Developments Pty Ltd v Boroondara CC

[5] I note that balconies encroach within this space with the balcony to Unit 7 being located a distance of 4.2metres from the balcony directly opposite.