Bayvue Pty Ltd v Port Phillip CC [2009] VCAT 1436 (24 July 2009)

Mixed use development, Business 2 Zone abutting St Kilda Road, Road Zone Category 1, High density residential offices, cafe, Local policies, Car parking dispensation, Car share, Building bulk and mass, Walls abutting open space

Bayvue Pty Ltd v Port Phillip CC [2009] VCAT 1436

1. The responsible authority's decision is set aside.

2. Vic Roads and Anita Bahree are admitted as parties.

1. The responsible authority must issue a permit for use of cafe and dwellings, development of a 13 storey mixed use building and car parking dispensation for offices, dwellings and cafe, generally in accordance with the endorsed plans and conditions. The conditions on the permit are contained in Appendix 1to this Order.

Develop 13 storey building comprising apartments, offices and cafe. Access to a main road and parking dispensation

Section 79 of the Planning and Environment Act 1987 concerning failure of the responsible authority to consider application within the prescribed time

Elevated, irregular shaped property with a land area of 1780 square metres at the southwest corner of St Kilda Road and Alma Road, St Kilda

Mr Christopher Canavan QC with Ms Emily Porter of Counsel. They called evidence from:

Ms Tania Cincotta, solicitor of Best Hooper. Ms Cincotta called evidence from Mr Andrew Hutson, Urban Designer.

Mr Damien Iles, Town Planner of Hansen Partnership on behalf of Barbara & David Mushin.

Mr Colin Fraudenfelder, Facilities Manager Port Phillip Housing Association.

Mr Clive Jackson, Town Planner, for Director of Housing.

1. This is an Application for Review by Bayvue Pty Ltd against the failure of Port Phillip City Council to determine application for permit for a mixed use development at the northwest corner of St Kilda Road and Alma Road in St Kilda. Initially the development was 17 storeys high, but amending plans reduced the building to 13 stories, the podium was lowered and the foot print of the building was modified to show a greater stepping -up from the southern boundary in order to lessen the visual massing.
2. Despite amending plans the responsible authority maintained its opposition, principally for the following reasons:
   • Inadequate on-site parking;
   • Inappropriate amenity impacts by way of loss of light and outlook;
   • It is inconsistent with local planning policies; and
   • It is out of character in the context of the site by way of scale and inappropriate visual and streetscape relationship especially in relation to the nearby church.
3. Owners and occupiers of properties to the west and south, including the Director of Housing objected to the application and in summary raised the following issues:
   • failure to respond to the site and neighbourhood character;
   • inadequate response to local planning policies;
   • impact on nearby landmark church spire;
   • poor architectural quality for pubic spaces;
   • loss of daylight and sunlight;
   • inadequate car parking facilities;
   • lack of attention to waste management;
   • potential overlooking and overshadowing;
   • inadequate car access;
   • excessive building height, bulk and massing;
   • overdevelopment of the site;
   • visual impact on immediate open space areas.
4. VicRoads sought to be a party on the basis of a disagreement about internal vehicular access ramp detail. It sought compliance with relevant Australian Standard.
5. Mr Canavan on behalf of the permit applicant submitted:
   • The proposal is strongly supported by State and local planning policy including urban consolidation initiatives;
   • The built form of the proposed development is appropriate and responsive to its site context;

(a) Is the height, scale and bulk of the development excessive in the context of the character of the streetscape of this locality?

(b) Will the proposed development have an unreasonable impact on the amenity of adjoining properties?

(c) Are the car parking and traffic outcomes acceptable?

1. The amended proposal shows a 13 storey mixed use development comprising:
   • 3 basement levels of car parking containing a total of 116 car spaces, 23 motorbike spaces, and 97 bicycle spaces and 4 car share spaces;
   • At ground level 714m2 of office floor area, a 72m2 cafe, resident gym, and resident theatre together with entry foyers for both offices and the apartment complex. At first floor level 1038m2 of office area.
   • Levels 2-12 will contain a total of 110 dwellings. Levels 2 to 4 have similar layout whilst from Levels 5 to 7 a reduced footprint leading up to Levels 8 to 12 having a smaller footprint again.
   • The external expression of the building will be one of stepping back at either two storey or single storey increments up away from the lower residential interface from the south.
2. Architectural expression is modern vernacular. The visual treatment of the elements facing Alma Road aside from contrasting glass and white expressed elements would be with rhythmic and sharply angled balconies on each floor. There will also be obvious terrace treatments and various and irregular protrusions facing St Kilda Road of individual or extruded "box" treatment and contrasting vertical and horizontal board like off form concrete cladding arranged level by level. The visual treatment of the podium levels will be the curtain type glass cladding with relatively narrow white horizontal/criss cross banding set behind various angled and expressed column features on the St Kilda Road face.
3. Vehicular access to the site is from the south eastern portion of the site south of the left turn slip lane to Alma Road. This treatment is designed for left-in left-out.

1. The subject site has an area of about 1780 square metres and is irregular in shape with an angled front boundary to St Kilda Road and an the apex abutting the north eastern corner of 3-7a Alma Road. Virtually the south western / north western boundaries abut and follows the St Kilda Road alignment including the left turn slip lane into Alma Road.
2. The site has a western abuttal to 3-7a Alma Road, which is an 8 storey[1] apartment complex known as Santorini apartments. This apartment building has a large wall on its eastern interface but its southern elevation is designed to step up away from 50 Barkly Street. The built form is robust, particularly to Alma Road.
3. The site also has western abuttals to 50 and 52 Barkly Street that comprises 2 two storey buildings operated by the Port Phillip Housing Association for rooming house accommodation for about 72 people. Recently substantial two storey contemporary designed extensions have been added close to the eastern property boundary. The rear of No 50 Barkly Street abuts the site, whilst No 52 Barkly Street is separated by an un-constructed road.
4. Land to the immediate south is a recently reconstructed road that provides pedestrian access to the rear of 52 Barkly Street. It also has the potential to provide access to 12 Waterloo Crescent although there are no gate entrances.
5. Land to the immediate south of this laneway (road) is a row of single and two storey dwellings owned by the Director of Housing. Some dwellings have small north facing courtyards and a large central common open space area. There is also a remnant two storey Victorian building facing Waterloo Crescent and other two storey dwellings including a remnant coach house that is occupied by Ms Bahree as a dwelling.
6. Further to the south-east of the site at 189 St Kilda Road is a recently constructed two storey apartment complex.
7. Land to the north comprises older style flats, offices, and a large church on the corner of Alma Road and Barkly Street. This church building and its spire will be referred to later.
8. Opposite the site on the eastern side of St Kilda Road comprises a mix of commercial uses including a petrol filling station and shops. There is also a recent four storey apartment complex behind commercial premises.

1. The subject site and the 8 storey building to the west and the properties at 189 and 191 St Kilda Road are zoned Business 2 under the Port Phillip Planning Scheme[2]. The purposes of the Business 2 Zone are to encourage the development of offices and associated commercial uses and implementing State and Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
2. There are Decision guidelines to guide the exercise of discretion and these include assessing:
   • The movement of pedestrians and cyclists, and vehicles providing for supplies, waste removal, emergency services and public transport.
   • The provision of car parking.
   • The interface with adjoining zones, especially the relationship with residential areas.
   • The streetscape, including the conservation of buildings, the design of verandahs, access from the street front, protecting active frontages to pedestrian areas, the treatment of the fronts and backs of buildings and their appurtenances, illumination of buildings or their immediate spaces and landscaping of land adjoining a road.
   • The storage of rubbish and materials for recycling.
   • The design of buildings to provide for solar access
   • The objectives, standards and decision guidelines of Clause 55. This does not apply to a development of four or more storeys, excluding a basement.[3]
3. There are relevant provisions in the State Planning Policy Framework[4] that seek the integration of relevant environmental social and economic factors in the interest of net community benefit and sustainable development. There are also relevant local planning policies that underpin the land use and development provisions of the Port Phillip Planning Scheme.[5] Clauses 22.06 -Urban Design Policy for Non- Residential Development and 22.09 -Housing.
4. During the hearing the responsible authority also referred to recent initiatives which included in the proposed Amendment C62 to the Port Phillip Planning Scheme. This amendment is awaiting approval to be exhibited from the Minister for Planning. Review Hearing
5. At the review hearing all parties present made written and oral submissions. Mr Hutson, Mr Biacsi and Ms Dunstan provided detailed written witness statements and were available for cross-examination. Mr Nonda Katsalidis, Architect provided an explanation of the proposal.

1. The Council's principal concern about the height and massing of the development is best summed up in the evidence of Mr Hutson whose criticisms are summarised as:
   • The architectural language of the exposed horizontal balconies to the north and the stacked box like elements to the south has no direct relationship to the immediate context but does share characteristics with the broader context of recent residential developments constructed in this decade.
   • The proposal for a 13 Storey building would be 5 storeys above the height of the adjoining recent development at 3-7a Alma Road and would make it easily the highest form within the immediate context and the broader vicinity.
   • The 13 storey proposal would have a dominating urban presence beyond the site's capacity to support a landmark building as it would visually work beyond urban expectations offered by the context.
   • The urban scale expectations in the immediate vicinity has been visually promoted by the 8 storey height of the adjacent development that, although prominent, works with the height of the church spire and does not dominate. The location of the highest point for the development in line with the bulk of the adjacent development brings the high forms of the proposal within the view cone of views to the spire from the east.
   • The proposal is to step the development away from the single storey houses abutting the south boundary and the generally lower scale of buildings south along St Kilda Road. While in principle this is reasonable site management to reduce amenity and visual impacts, the outcome would be confronting for the occupants of these houses.
   • The Rescode set back line is not intended for use above 9 metres. The reason for the height limit is that the building above this height may still impose unacceptable visual bulk despite being progressively set back as it would encroach on the sky aspect in outlooks from the adjoining properties. The proposed development would certainly impose a substantial visual bulk on the adjoining properties which is not sufficient ameliorated by the setbacks.
   • Notwithstanding that the setback indicator is not intended to be used above a height of 9 metres even by such measure it also lacks credence as the 10th, 11th and 13th storeys encroach on an extension of the setback line.

1. We undertook various views of the site and the view lines of the church spire along Alma Road, St Kilda Road and Barkly Street and Princess Street and came to a similar conclusion to Mr Biacsi that the highest elements of the building will not be within the primary view line of the church spire. This is due to a juxta- position of the proposed building, its relationship and alignment with 3-7a Alma Road. Both of these property alignments veer in a south-easterly direction away from the original Alma Road alignment. Furthermore the higher levels of the building are in close alignment with the largest part of the Santorini apartments building and tends to turn the corner at Alma Road. The Alma Road alignment actually has opened up a greater vista of the church spire, but it also means that this building cannot interrupt a view of the church spire from Alma Road. Any westerly view of the Church spire from the either side of Alma Road is maintained.
2. We appreciate the need to protect prominent views of important landmarks[6]but suggest this would seem to be more of an issue if redevelopment was proposed on the northern side of Alma Road.

1. We consider the bulk and mass of the development on the southern interface has largely been ameliorated by a substantial stepping up design approach so that dwellings and their courtyards to the south of the subject site will only focus on the two storey wall of the proposed development. The building then rises incrementally away from the subject site, but for most parts this view in contention is obscured by the second floor parapet close to the southern elevation. We do not consider the upper level intrusions into this view are substantial or need to be altered. We consider this a clever design solution to treating the impression of building bulk on this site having regard to the proximity of relatively low-level buildings. Not only has this treatment ensured that usual day- lighting and overshadowing standards are met but it has also assisted to avoid overlooking of properties to the south.

1. Whilst the proposed building is larger than the 8 storey (9 levels) Santorini apartment building, we do not consider, generally speaking, that that building should necessarily be identified as the tallest or largest building in this locality. This is a prominent site and a high building can be placed on it provided various amenity and siting issues are addressed. We note, with interest that the subject site has no specified height limit and there is no specific policy or Design and Development overlay to give design or policy direction on this issue.
2. Ms Cincotta argued with some force that local planning policy directs a higher level of development to areas north of St Kilda Junction or areas which are:
   • Within an Activity Centre (defined by a business zoning)
   • Not more than 200 metres to a fixed rail public transport
   • Strict control of on-street parking
3. Whilst we appreciate the general thrust of Council policy to encourage higher order development into the St Kilda Road (north) precinct, the Barkly Street/Inkerman Street precinct or in the Port Melbourne area this does not preclude a high density mixed use building establishing on land which is well suited to a higher form of development. Some of the benefits attributed to this site include:
   • its abuttal to St Kilda and Alma Roads which is a busy metropolitan arterial road
   • its abuttal to a busy tramway which links the CBD with Balaclava Caulfield, Elwood, Elsternwick and Carnegie
   • its close proximity to a busy bus service that runs along Barkly Street/Punt Road/Hoddle Street
   • its proximity to the St Kilda Junction
   • its proximity (ie walking distance) as Albert Park
   • its proximity to activity centres such as Fitzroy Street and Acland Street (Village Belle)centre and to a lesser extent the Balaclava (Carlisle Street) Activity Centre.
4. Whilst the site is not located within an "activity centre" it has specifically been zoned for business purposes and having regard to the higher built form and proximity to so many excellent facilities and services it would seem remarkable, if not a wasted opportunity, if an owner did not seek to capitalize on the development opportunities on this site.

Locate a substantial proportion of new housing in or close to activity centres and other strategic sites that offer good access to services and transport by...(amongst other things):

• Increasing the proportion of housing to be developed within the established urban area, particularly at activity centres and other strategic sites, .....
• Encourage higher density housing development on sites that are well located in relation to activity centres and public transport.
• Supporting opportunities for a wide range of income groups to choose housing in well serviced locations.

1. Ms Cincotta referred to the Council's encouragement of buildings up to 60 metres in height in the area to the north of St Kilda Junction. This is understandable having regard to the presence of buildings that are already that height in the area north of St Kilda Junction.
2. On a "first principals" basis most development north of St Kilda Junction is likely to have a greater built form and intensity than most development sites to the south of St Kilda Junction. This is because of the subdivision and development patterns, residential interface issues and limited opportunities for redevelopment on remnant sites left over from the 1970s widening of the old High Street St Kilda.
3. The site is zoned for Business and is identified on the Strategic Land Use Framework Map in an area for "Opportunities for new residential growth". Realistically it is one of the few sites that could be considered for higher density high- rise development along this section of St Kilda Road. We acknowledge that there is a sensitive interface with residential properties to the south and west but this development through sensitive and clever design treatment has provided a two storey interface and then stepped the higher elements away from the residential interfaces.
4. However just because the Council identifies preferred areas for higher buildings, does not mean that when a suitable site is presented that it should be shunned on the basis of not being supported by policy. If anything this undervalues the policy direction in Clause 12.

1. We have considered the interface with Santorini Apartments in two parts, amenity and appearance, though they are related, as they are to the way in which the review building turns the corner.
2. The parties have generally acknowledged that, in the building of Santorini apartments, there would have been an expectation that a new large building would eventually be built on its eastern boundary. The blank East wall and the screening and setting back of the unit 7.02 terraces provide reasonable evidence of this expectation. The occupants of unit 7.02 have outstanding views in most directions and, even with the proposed five level blank wall above them to their east, their views would be difficult to outclass. Despite this observation, and whilst we do not find it necessary to criticise the building height generally, we do not think it is reasonable to build a wall of 5 levels in height in such proximity to a residential open space due to the imposition and presence of such a structure. We consider a five storey wall hard against the balcony will produce an oppressive and dominating visual impact on both the balcony area and the primary bedroom to this Dwelling 7.02. Accordingly, this wall should be off set from the boundary.

1. We agree with Mr Biacsi that the shape of the review site will dictate that the turning of the corner will occur naturally in plan though, in consideration of the elevational views of this part of the building, we believe that the proposed step is abrupt and does not provide a visually acceptable transition to the Santorini apartment building. Accordingly, we believe the northern façade, where it is higher than the top of the Santorini unit 7.02 planting box, should be set back and, whilst the proposed building should not be designed to appear as if it is a part of Santorini building, it should turn the corner at the same height.
2. Mr Iles submitted a montage suggesting that the building would make a better transition if the 10 or so units comprising the upper 5 levels of the north-western part are deleted, and did not suggest that the ultimate height is an issue. We consider that whilst some of Mr Iles suggestions have credence in reducing the visual impact of the building on the Mushin's dwelling others suggested changes are excessive. In attempting to balance conflicting objectives of encouraging well designed, affordable housing whilst providing a reasonable level of amenity to dwelling 7.02 we consider the following amendments are required to produce a better transition with the Santorini apartment building:
   • Align the review building's north- western structure with the existing patterned concrete Eastern boundary wall of the Santorini building elevation up to the height of the top of the planting box of unit 7.02 so that both buildings turn the corner at the same level.
   • Set back that part of the western side of the building, but not the western stair, that abuts and is above the height of the planter box of unit 7.02 of the Santorini building back at least 3 metres.
   • Set the north- western corner of the building, above the level of the planter box on unit 7.02 back to align with grid 7 on the plans.
   • The stair abutting the western boundary shall be rotated away from the Santorini building to align with the basement car park aisles.

3. It was observed at our site visit, that the south- eastern corner balconies of Santorini will be immediately exposed to the western stair. Our review of the plans suggests that the western stair could be rotated away from these balconies to increase their view radius. The rotation should align with the basement car park aisles.

1. The amended plans indicate stepping away from the southern boundary with the purpose of limiting overshadowing of and overlooking to the properties to the south. Whilst there were differences of opinion between the parties as to the finer detail of the sight lines, we consider that the proposed stepping is an acceptable method of addressing overshadowing and overlooking objectives. Some minor tweaking of the sight lines will not have a material effect, positive or negative, on the southern neighbours, especially at the position of their rear yards, where the sight lines were drawn from.
2. On inspecting Ms Bahree's home, we found that its aspect is generally to the north- east, toward St Kilda Road, which is not in the general direction of the review site. Whilst the building may be visible from some points of the rear yard, it is unlikely to dominate the outlook or have any substantial amenity effect. From the remainder of the yards of 12 Waterloo Crescent though, the two level office wall will be visible and we feel it is reasonable for this wall, to be designed appropriately to be viewed by the residents, that is, not as a 'back of building' style of construction. We consider that a two story building form separated by a 3metre wide Right of Way is a reasonable design response at the interface between a Business 2 Zone and Residential 1 Zone in Inner metropolitan Melbourne and is also consistent with previous Tribunal findings such as in the Martin Stuart[7].
3. We considerate it is reasonable for all windows in this southern elevation are screened to 1.7 metres high to prevent overlooking. This was conceded by the applicant and is addressed by a condition on permit.
4. We agree with Mr Biacsi, that the proximity of all of the units to the west and south- west will create some overlooking and, where this is the case, they must be appropriately screened. Additionally, the balconies of the 3 southernmost units at level 2 need to be set back a minimum of 2.0 metres from the boundaries and screened to prevent overlooking. These matters will be addressed through conditions on permit

1. We would also remark persons living at the interface of a residential and business zone cannot expect the same level of amenity that would be found in a conventional residential only area. This can apply equally to the level of activity, building bulk, height and massing or even car parking and traffic issues. It is best summed up in an often quoted Martin Stuart[8] Decision:

The owners and occupiers of allotments at such zone interfaces must both make compromises. The occupier of the residential allotment must accept a lower residential amenity. The occupier of the business zone allotment must accept a possible requirement that the height and intensity of development that maybe appropriate elsewhere in the zone be softened or scaled down at the boundary.

1. When the site is viewed in detail and the relationship with various abutting properties we conclude the design has responded well to the general thrust of the planning scheme and its site context. Whilst concerns were held about the relationship with the single storey dwelling to the south, we noted that these dwellings actually have a large, pleasant courtyard with a southern orientation and that in many respects these dwellings to turn their backs on the subject site and the St Kilda Road/Alma Road intersection. This has meant that the interfaces are less sensitive than one would otherwise expect.

1. Ms Cincotta claimed there should be 110 resident car spaces along with 22 visitor car parking spaces on the basis that this was consistent with the Rescode rate and despite the parking rates in Clause 52.06. Ms Cincotta acknowledged the responsible authority had recently commissioned a study by Ratio Consultants that indicated about 20% of smaller, single bedroom dwellings could reasonably be expected to not need on-site car parking. She claimed the study took into account local facilities and distance to public transport. She also claimed that dwelling size is also a relevant factor whereby smaller dwellings could reasonably be anticipated to generate lower car ownership.
2. Ms Cincotta claimed that only 11 of the 56 small single bedroom dwellings could be car free and this represents about 10% of all dwellings however due to the market thrust of the proposal and the higher quality architecture, car ownership, even of the smaller dwellings, could be slightly higher than claimed. Ms Cincotta argued parking facilities for office use was insufficient. She claimed that a rate of in the order of 2.8 car space for 100 was more appropriate for this development rather than the provisions of 1.9 per 100 square metres. Whilst she acknowledged that the site had generous bicycle parking and good access to public transport, the car parking facilities were inadequate. Ms Cincotta called no traffic evidence to verify these assertions.
3. On the other hand the applicant relied on detailed traffic evidence of Ms Dunstan's which concluded:
   • the site is located in close proximity to extensive public transport services,
   • on-street parking in the local area is subject to short-term restrictions or pay parking, which discourages long-term parking by staff and residents,
   • the site is located along the St Kilda Road commercial/office corridor (a major employment precinct), which is a significant generator of locally accessible employment, and is easily accessed via public transport, by foot or by bicycle in preference to private ears,
   • the site is located in close proximity to Major Activity Centres such as Fitzroy Street, Carlisle Street, and Acland Street all of which are within convenient walking distance or via a short public transport trip,
   • the size of the proposed dwellings is generally small (51% less than 45m2),

As set out in empirical assessment of the parking demands associated with the development at Section 5.2, the long-term parking demands associated with staff and residents are expected to be met on-site for this development. Short-fall in parking will be entirely associated with cafe customers and residential visitors.

These short-term demands can be met off-site within the available shared parking resources in the nearby area as identified by the various parking surveys undertaken by Traffix Group.

1. We appreciated that the Ratio Consultants report has not been adopted by the Council and it may never become part of the planning scheme. However, some of the findings in that report[9] are worthy of reporting because they tend to reinforce Ms Dunstan's evidence.
2. The responsible authority should be applauded for its approach in the Sustainable Transport Policy and Parking Rates document because of the necessity to approach car parking and traffic management in a more sustainable and equitable manner. Implementing maximum car parking rates or even a cap on the number of car spaces in a neighbourhood may be on the face of it unpopular or even illogical, particularly to car reliant residents, but it should not be restrained by acting in the interests of future generations by taking a more sustainable approach.
3. The Ratio report identifies average car ownership in this particular precinct of St Kilda is 0.0 - 0.49 cars. Further, some of the recommendations of the report suggest that car parking rates should range from 0 to 0.8 car spaces per small dwelling. Whilst 0.8 car spaces has been nominated in as a minimum for small single bedroom dwellings and the councils was prepared to accept what amounts to a 10% discount for small single bedroom dwellings, the rate mentioned by its own consultants indicates that 0.8 car par dwelling was intended to be the maximum rate.
4. The applicant proposes 0.4 spaces per apartment for dwellings under 45 square metres, 0.8 car spaces per apartment for dwellings over 45 square metres (that contain one bedroom) and one car space per apartment for two bedroom apartments thus giving a total of 72 car spaces. This is slightly higher than the empirical evidence from Ms Dunstan and the ABS statistics for the neighbourhood that was not contradicted.
5. Accordingly we consider there are grounds to vary the car parking ratio on the following basis:
   • ABS statistics demonstrates that the area has a relatively low car parking ownership for one bedroom and/or bed sit apartments.
   • Empirical evidence of low car ownership in this neighbourhood.
   • The site has excellent access to public transport, with a tram stop outside the site in St Kilda Road served by two tram routes.

Achieving greater use of public transport by increasing densities, maximizing the use of existing infrastructure and improving the viability of the public transport operation.

1. We consider that in a busy inner urban location that are very sensible transport and environmental reasons to attempt, wherever possible, to minimize car usage and congestion on the busy roads particularly having regard to its proximity to commercial areas, including St Kilda Road and the CBD.
2. When we examined this site, we asked ourselves:

Would a resident in this development go to the trouble of exiting a car park, travelling through congested streets to go to restaurants or shops in Fitzroy Street, or Acland Street, or would they rather walk the distance?

1. Whilst the distance to the heart of the Fitzroy Street or Acland Street/ Village Belle activity centres was more than 400 metres the lack of car parking facilities and road congestion in these busy popular activity centres is a disincentive for persons to drive a vehicle, attempt to find a parking spot. Whilst we acknowledge the larger one bedroom apartments may have a greater predisposition towards car ownership, if there is an expressed limitation on car parking, this itself will be a disincentive to anyone contemplating purchasing an apartment without a car space.
2. We acknowledge that at present there are some parking restrictions in the local streets that discourage all night parking, but nonetheless the only parking limitation is along St Kilda Road during business hours. However, at this stage there is still ample parking in St Kilda Road for residents and if it does pose a problem the Council itself has the powers to limit on-street parking if it feels there is a particular problem. If anything based on observations and Ms Dunstan's evidence it seems that St Kilda Road and the subject site is primarily being used for commuter parking.
3. We also question the assertion by Ms Cincotta's that the architectural superiority of the building there will lead to a higher car ownership. As it stands future owners and occupiers will need to make enquiries before purchase/ occupation, as they do in many CBD developments. But we do not see that that the applicant should be penalised by a higher parking rate for having an innovative and excellent design.

1. We acknowledge that there is a theoretical shortcoming in the car parking rates for the proposed office development. This in itself is a disincentive to high parking usage. On viewing the Ratio report where it undertook a random sample of some office buildings in St Kilda Road. It was apparent that the car parking rates varied between 1.7 and 4 car parking space per 100 square metres. It seems that the more parking available the more parking will be taken up and this was aptly demonstrated by reference to the survey material undertaken by Ratio Consultants. For example the survey of Cadbury Schweppes House, where the parking generated for that building increased between 1991 and 2006 from 2.8 car spaces per 100square metres to 3.9 car spaces per100 square metres. It is interesting that when that building was constructed in the early 1970's the parking rate in the planning scheme was 1 car space per 90 square metres. Obviously additional parking (either onsite or nearby) has been obtained to respond to the demands of the occupier(s) and it now exceeds the normal rate in the planning scheme.
2. We therefore conclude parking for offices seems to elastic and the more there is available the more it will be used. Furthermore merely applying the parking rate in the planning scheme, or even a minor reduction in rate, may not be a sound long term approach in an area well served by public transport. If anything demanding higher parking rates for offices tends to be counter productive to its sustainable transport objectives

1. There was no dispute about car parking rate for the cafe. It is acceptable to rely on patrons walking to the premises either from nearby dwellings or commercial premises having regard to the site's excellent relationship with Alma Road and the likelihood that customers are more likely to walk to the premises.

1. Ms Bahree was concerned about vehicular access to the subject site and was concerned about noise of vehicles entering the site plus also vehicles using the laneway to the immediate north of the property. The proposed plans show all vehicle access to the car park will be via a single entrance off St Kilda Road. Council's engineers, VicRoads and Ms Dunstan all agree that this car access is logical, safest and the most practical place to enter and exit the subject site.
2. Ms Bahree and Mr Fraudenfelder raised concern about usage of the recently re-constructed laneway to the south of the premises. Mr Fraudenfelder advised that the laneway was re-constructed by Council to facilitate pedestrian access to the rear of 52 Barkly Street. Ms Bahree was concerned about this lane being used and also noise and disturbance from the St Kilda Road and the lane.
3. In reality, cars to the subject site will not need to have any access to this lane although it appears to be a declared a public road and it has been constructed by a public authority and those properties with legal access to it can enjoy that access. Whilst the Council may have re-constructed the lane for the benefit of one property the Port Phillip Housing Association should appreciate that they do not have sole access rights over this road. The only vehicular access we see likely from this development in the long term may be service vehicles such as electricity, telecommunications and possibly emergency services.
4. We suggest that if there is some concern about illegal parking in this laneway, the matter can readily be addressed installing by removable bollards with keys provided to the relevant servicing authorities. This is an accepted practice in the industry and would avoid conflicts that were raised in the hearing.
5. We do not consider the vehicular entrance will lead to a substantial increase in noise to Ms Bahree's dwelling because it will be at least 3 or 4 metres north of the closest section of her rear yard and this part of the yard abuts St Kilda Road that is a busy, noisy metropolitan arterial road.
6. The only dispute between VicRoads and the applicant relates to the grade of the access ramp. VicRoads wants an access ramp grade of 1 in 20 for the first 6 metres. The applicant's cross section shows a grade of 1 in 16 for 4 metres. Ms Dunstan explained that at a point along the cross section the access ramp did not meet the standard required by VicRoads.

1. For the above mentioned reasons the responsible authority's decision is set aside and it is appropriate to direct the issue of a permit for the mixed- use development, generally in accordance with the amended version of the plans and elevations but with changes to address the height and set back of walls abutting 3-7a Alma Road, and overlooking issues.
2. There is a mutual and realistic expectation from the responsible authority and the applicant that the review site is a suitable candidate for a high order of quality residential development at a scale larger than the nearby residential interface to the south.
3. We consider that the proposed building is well designed and in general responds appropriately to the opportunities and constraints inherent in the review site. The amended plans constitute a significant reduction in height and bulk from the original proposal considered by the responsible authority, and attempt to address amenity, interface and urban design issues. Some issues relating to residential amenity and bulk at the interface with adjoining dwellings can be addressed by simple modifications to the building through permit conditions.
4. There are sound policy reasons to support a reduction to the normal parking rates for this mixed- use development. State Planning policy and local policy initiatives support high quality designed and sustainable development in inner suburban areas like of St Kilda .

1. Before the development starts, amended plans and elevations to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and form part of the permit. The plans must be generally in accordance with the amended plans dated 17 April 2009, Revision A - VCAT issue, but modified to show the following:
   • (a) screening of secluded open space and/or habitable room windows facing 50 & 52 Barkly Street to the west in accordance with the schedule of changes identified by and attached to Mr Biacsi's evidence statement in VCAT Applicationp3515/2008 and in accordance with usual requirements of Standard B22 of Rescode;
   • (b) Modify the upper western side of the building by:
     • Aligning the review building's north- western structure with the existing patterned concrete Eastern boundary wall of the Santorini building elevation up to the height of the top of the planting box of unit 7.02 so that both buildings turn the corner at the same level.
     • Setting back that part of the western side of the building, but not the western stair, that abuts and is above the height of the planter box of unit 7.02 of the Santorini building back at least 3 metres.
     • Setting the north- western corner of the building, above the level of the planter box on unit 7.02 back to align with grid 7 on the plans.
     • Rotating the stair abutting the western boundary away from the Santorini building to align with the basement car park isles .
   • (c) Amend the basement entry in accordance with ground floor plan dated 13 May 2009, Revision B;
   • (d) A detailed schedule of materials, finishes and colours consistent with the plans and elevations tabled at VCAT Hearing P3515/2008
   • (e) Translucent glass or other privacy screens up to height of 1.7 metres above floor level to all south facing windows in the office accommodation on the ground and first floors.
2. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3. Not less than 116 car parking spaces, not less than 97 bicycle and not less than 23 motorbike/scooter spaces must be provided on site to the satisfaction of the responsible authority. In the event the number of dwellings in the development are reduced below the number that will be achieved by the changes to the building in Condition 1of this permit then the number of car spaces may be reduced on a pro-rata basis to the satisfaction of the responsible authority

The Responsible Authority may extend the period referred to if a request is made in writing before the permit expires or within three months afterwards.

1. The vehicular access from St Kilda Road must be constructed in accordance with the endorsed plan and maintained to the satisfaction of the Responsible Authority and Vic Roads.

1. The internal ramp shall be constructed at a gradient with an average of than 1:20 for the first 6.0 metres from the property boundary to the satisfaction of the Responsible Authority and Vic Roads.
2. There shall be no gates, card readers or any other obstruction to the movement of vehicles within 6.0 metres into the property boundary.
3. The retaining wall on the north side of the ramp shall be no greater than 1.0 metres higher than the ramp for the first 2.5 metres into the property.
4. All mitigating works are to be completed at no cost and to the satisfaction of the Vic Roads and the Responsible Authority.
5. Work site traffic management practices must be in accordance with the Australian Standard A.S. 1742.3.2002 "Manual of uniform traffic control devices - Part 3. Traffic control devices for works on roads.

[1] It is 9 levels. There is a study installed within the upper level of apartment 7b.

[2] No's 50-52 Barkly Street and 12 Waterloo Street are located in a Residential 1 Zone

[3] There is also a requirement a neighbourhood and site description and design response

[4] Including Clauses 11.02, 12, 14, 15.12, 17,02, 18.02 and 19.03

[5] See Clauses 21.04 (Vision), Residential Land Use (cl. 21.05-1), Neighbourhood Character (cl. 21.05-3) Urban Design (cl. 21.05-4), Commercial Land use (cl. 21.05-8).

[7] Martin Stuart Pty Ltd v Port Phillip C.C. [2000] VCAT887

[8] Martin Stuart Pty Ltd v Port Phillip C.C.[2000] VCAT 887 at paragraph 47

[9] See Section 2.2