1. It is peripherally relevant to consider that although there has been a very modest change in the number of habitable rooms, the practical consequence is that the use as a whole becomes controlled by permit conditions, compared with the existing condition where it is as-of-right. I regard this as an improvement. In addition, through refinements in the plans for endorsement, enhancements will be made to provide communal open space and a common room.
2. The responsible authority proposed screening for the first floor (southern elevation) passage way windows to a height of 1.7 metres above finished floor level. Having inspected these windows, I accept the submission on behalf of the permit applicant that this screening is not necessary since the windows only serve a long narrow passageway and serve to provide light to non-habitable areas of the building. In addition, the adjoining property is still undeveloped and there is ample capacity to design an appropriate building that would provide an acceptable level of privacy.
3. I have given effect to the applicant's commitment to remove cooking facilities from individual rooms (even if portable and temporary) and to allocate one ground floor room for a common kitchen/meals area. This will be addressed via a condition requiring submission of amended plans.
4. I have modified the landscape plan requirement to focus principally on the area to the side and rear of the property, including the provision of shared facilities within a designated communal open space area. I regard this area as appropriately orientated and dimensioned, even though it is accessible via a shared sideway.
5. On the whole, I regard the existing landscaping within the frontage as acceptable, noting that a number of shrubs, trees and grasses have been planted but that it will still take time for these to advance in size and street presence.
6. I have imposed a condition in line with the parties' request to record that the leasing arrangements should be centralised and that the housing offer is principally directed toward people genuinely requiring low cost and crisis accommodation. I concede that imposing these requirements by way of a section 173 agreement may be excessive where the housing offer is relatively small[17] and the land is owned and operated privately, rather than by a housing or government agency. In the present circumstances, I have worded this as a 'best endeavours' requirement, noting that the permit continues for the duration of the use and the conditions remain operational.
7. I have also provided flexibility in terms of the overall number of residents, since the current condition contemplates a maximum of one person in almost all rooms. The nature of crisis accommodation is such that there may be families or couples that wish to share a room, and this should be permissible with consent of the responsible authority.

1. For the reasons above, I consider it appropriate to grant a permit for the use of the land as a Residential Building (Boarding House) subject to conditions generally agreed by the parties.
2. I recognise that there may be a relatively fine line between uses of land for crisis versus low cost accommodation and/or general boarding houses. While the 10 habitable room limit in clause 52.22 may, on one view, seem arbitrary, the fact that minor changes could be made and the building approved for a different purpose might occasion some consideration of the way the crisis accommodation exemption is formulated.
3. To the extent that the responsible authority requested that I give direction in this regard, I consider that this would more properly be a matter for the government if it elects to, after taking advice from a broad range of agencies, interested groups and individuals. The provision for crisis accommodation in the planning scheme is an issue that raises numerous challenges, and would need to be approached in an integrated way, rather than on a case-by-case basis.

Use of the land for a Residential Building (Boarding House) in accordance with the endorsed plans and subject to the following conditions.

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to be approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted but modified to show:
   • (a) the conversion of one proposed bedroom/unit on the ground floor to a communal kitchen/meals area;
   • (b) A landscaping plan in accordance with Condition 4 of this permit;
   • (c) Deletion of all cooking facilities from each bedroom/unit including the stove notations;
   • (d) Provision of communal open space for residents at the rear of the building for all areas that are not separately fenced for secluded private open space; and
   • (e) A notation allocating currently fenced ground floor open space to adjacent units.

1. The use and development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

1. The number of persons residing within the building must not exceed twelve (12) persons except with the further consent of the responsible authority.

1. Before the approved use starts, a Landscape Plan prepared by a suitably qualified person, must be submitted to and approved by the Responsible Authority to its satisfaction. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:
   • (a) Buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary;
   • (b) Details of surface finishes;
   • (c) Details of landscaping with a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, size at maturity and quantities of each plant with:
     • (i) a planting theme of a minimum 40% indigenous, 40% native species and 20% exotic within each plant group);
     • (ii) at least two canopy trees within the communal open space with a minimum mature height of seven metres and a width of five metres, to be planted at a minimum height of 2 metres tall; and
     • (iii) at minimum, planting two shrubs in each fenced ground floor semi-private open space area.
   • (d) The provision of a designated area with seating, shade and a BBQ or similar for residents within the communal open space area.

Before the use starts, the permit holder must carry out all landscape and surfacing works and must provide all furniture and facilities within the communal open space area to the satisfaction of the responsible authority. This area and its facilities must be maintained in accordance with the endorsed plans to the satisfaction of the responsible authority.

1. All landscaping works shown on the endorsed landscape plans must be maintained to the satisfaction of the Responsible Authority on an ongoing basis.

1. All bedrooms/units must be leased through a licensed central managing agent or crisis accommodation service, except with the further consent of the responsible authority. The agent or service must use their best endeavours to ensure that the accommodation is tenanted principally to people in need of crisis accommodation or low cost accommodation.
2. Within one month of the date of this permit and before the use starts, a Site Management Plan must be submitted for approval to the satisfaction of the Responsible Authority. Once approved, the Site Management Plan will be endorsed and will form part of this permit and must be upgraded as required from time to time. The management plan must address (but is not limited to) the following:
   • (a) The name and contact details of the managing agent for leasing purposes;
   • (b) The name and contact details of the person responsible for the day to day management of the premises (if different);
   • (c) Rubbish storage and collection;
   • (d) Facilities maintenance;
   • (e) Building and landscaping maintenance; and
   • (f) A process or procedure that will be available to neighbours in the event that they need to contact the manager in relation to some aspect of the operation of the use.
3. The telephone number or numbers with 24 hour access to the operator/ manager of the residential building must be displayed on the front door entry so that any neighbouring resident can register a complaint or address any other matter arising from the use of the site.

1. The use and development must be managed so that the amenity of the area is not detrimentally affected including through the:
   • (a) transport of materials, goods or commodities to or from the land;
   • (b) appearance of any building, works or materials;
   • (c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;
   • (d) presence of vermin;
   • (e) others as appropriate; or
   • (f) in any other way.
2. Before the use starts, all outdoor lighting must be designed, baffled and located to prevent light from the site causing any detriment to the locality, to the satisfaction of the Responsible Authority.

1. Car spaces must not be used for any other purpose other than the parking of vehicles in association with residents of and visitors to the land, to the satisfaction of the Responsible Authority.

1. This permit will expire if the use has not commenced within two (2) years of the date of this permit. In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the period referred to in this condition.

[1] In clause 52.22 of the planning scheme.

[2] Under clause 32.08-1. The applicant did not elect to seek permission for Crisis Accommodation (more than 10 habitable rooms) as an innominate, unspecified use. The land is now included in the General Residential Zone and no overlay controls apply. Policy at clauses 11, 15 and 16 are relevant in addition to clauses 21 and 65.

[3] At the time of its decision, the land was in the Residential 1 Zone but it confirmed its position had not shifted with the rezoning.

[4] From the outset, I endorse the comments of Member Wilson in PosCorp v Frankston CC [2011] VCAT 1140 on similar facts, see paras 15-17 in particular, that the approach adopted which is similar here is not currently unlawful or an abuse of process.

[5] As well as concerns about the suitability of internal walls that have been erected, and may be amended or rebuilt under different processes.

[6] With shared washing line at the rear.

[7] These facilities appear to have been optional before and confined to a small portable, plug in electric oven/cooktop unit.

[8] The same finding was reached on similar facts in Poscorp v Frankston CC. A relevant consequence is that the provisions in ResCode in clause 55 do not apply. Nonetheless, for the purpose of convenience, I have referred to the rooms to be tenanted as units from time to time in this decision.

[9] See for example the reasoning of Deputy President Gibson in Armato v Hepburn SC [2007] VCAT 603.

[10] Contrasted against the facts presented in Merrett v Moira SC [2005] VCAT 242.

[11] By reference to Frankston Character Area 5 for example and my observations of the area on my site inspection, for example rendered wall finish and pitched tiled roof.

[12] Approximately 12 metres to the street, 5.5 from the northern and western boundaries and 1.5 from the southern boundary.

[13] For example, the Frankston CAD and railway station is 1.1km from the site, the hospital is 600 metres away and Monash University is within 700m.

[14] See for example the Frankston Housing Strategy September 2013, sections 5.2.2 and section 6. A relevant objective is to increase the supply and distribution of public and social housing across the municipality.

[15] In cases such as Balmer Pty Ltd v Moreland CC & Ors, a decision of Member Naylor dated 29 September 2009, where Ms Dunstan gave evidence that average parking rates for six House Share Vic buildings including that on the subject land were 0.22 cars per lodging room.

[17] Contrast J Di Pietro v Boroondara CC & Ors [2005] VCAT 1271, where 50 beds were proposed and an on-site manager was provided and such a condition was imposed.