The order of the Tribunal is that the decision of the Responsible Authority is set aside. A permit is granted for Shops and Dwellings at 1-7 Waltham Street, Sandringham generally in accordance with the endorsed plans and subject to the following conditions:

1. Before the use and/or development starts, three copies of amended plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the plans submitted with the application but modified to show:

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

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

(c) the location of identification of all plant and equipment (including air conditioners, heating units, hot water systems, etc.);

(d) devices necessary for the safe and practical functioning of the basement entry and exit ramp;

(e) five car spaces allocated to the retail tenancies (one for each tenancy) and the balance of the car spaces allocated to the dwellings on the land.

(f) Floor levels and basement entry and exits being designed to minimise the risk of flooding to the satisfaction of Melbourne Water.

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

3. Before the use and/or development starts, a sited layout plan drawn to scale and dimensioned must be approved by a Building Practitioner registered under the Building Act 1993 and submitted to the Responsible Authority. The plans must show a drainage scheme providing for the collection of stormwater within the site and for the conveying of the stormwater to Council's nominated point of discharge to the satisfaction of the Responsible Authority.

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

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

* The development and use is/are not started within two years of the date of this permit.

* The development is not completed within four years of the date of this permit.

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

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

7. All brickwork on or facing the boundaries of the site must be raked and cleaned or rendered or bagged and painted to the satisfaction of the Responsible Authority.

8. Before the use and/or development starts, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:

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

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

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

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

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

10. All redundant vehicle crossings shall be reinstated to the satisfaction of the Responsible Authority at the cost of the Applicant/Developer.

11. The Applicant/Developer is to provide a certificate of environmental audit for the land in accordance with Section 57 AA of the Environment Protection Act 1970 before the use and development starts.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Ms Jennifer Bowdern, Solicitor, appeared on behalf of the Responsible Authority.

Mr Mark Naughton, Solicitor, appeared on behalf of the Applicant for Review and Permit Applicant. Mr Naughton called Mr Tim Biles, Town Planner, as a witness in support of his submissions.

Mr Arthur Briggs appeared on behalf of the Sandringham and District Masonic Hall Company Pty Ltd.

The following Respondent/Objectors appeared on their own behalf and on behalf of other Respondent/Objectors:

1. This is an application to review the decision of the Responsible Authority to refuse permission for a mixed use development comprising shops and dwellings in a three and four level building over a basement car park within the Sandringham shopping centre. The Responsible Authority issued a notice of refusal to grant a permit for the following reasons:

* The proposal will be detrimental to the neighbourhood character of the area in terms of mass, visual bulk and height.

* The proposal does not comply with the spirit and intent of the Good Design Guide.

* The proposal fails to make adequate provision for on-site parking and will be detrimental to the availability of on-street parking in the surrounding area of the site.

2. The parties and the witness in the appeal made both written and verbal submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject site and its locality.

3. The subject land is located at the south-eastern corner of the intersection of Waltham Street with Abbott Street in Sandringham. The site is triangular in shape, and is currently vacant having previously been occupied by a petrol station. The subject land is located on the northern periphery of the Sandringham shopping centre which is centred on the Sandringham railway station. The character of the shopping centre is largely defined by development which primarily took place in the first half of the 20th century.

4. From a planning policy perspective the Sandringham shopping centre is an Urban Village a designation which has arisen out of a special urban planning and development project pursued in the mid 1990s. Urban Villages were defined as:

"Urban Villages are mixed use urban centres with medium density housing, shops, workplaces and a central public transport stop. They have safe, attractive streets, some public parkland and opportunities for recreation. Their design promotes energy efficiency, pedestrian activity and social interaction."

(Energy Victoria 1996 - Urban Villages Project - Encouraging Sustainable Urban Form)

5. Local working groups were formed in respect of a number of Urban Villages around Melbourne with a view to preparing strategies for future development. Broadly speaking Urban Villages were focused around smaller shopping centres with good public transport access and which was seen as having some potential for more intensive pedestrian focussed mixed development which would enhance the role of the centre in a sustainable form.

6. In the case of the Sandringham shopping centre this led to the development of the Sandringham Urban Village Strategy 1998, and ultimately to the incorporation of Clause 22.04 in the Bayside Planning Scheme. The planning policy framework of relevance to this particular application is very complex and it has been described in detail by both Ms Bowdern and Mr Biles. However, in some respects the most important aspect of this policy is the Urban Village Policy which is set out in full below:

This policy applies to the Sandringham urban village area shown on the Sandringham Urban Village Height Plan forming part of this policy.

This policy implements the strategic directions of the Municipal Strategic Statement on activity centres.

In response to concern that Sandringham's population and business activity is in a state of decline, Council has developed the Sandringham Urban Village Strategy to promote the concept of self-sustaining communities where living, working, recreating and shopping can all occur within walking distance.

Whilst the land use zoning provisions provide broad controls over land use and development in and around Sandringham, it is critical that Council provides more specific policy guidelines indicating priorities and preferred development within the various precincts if the strategy is to succeed.

* To protect and enhance the character, heritage, streetscape and pedestrian environment of the Sandringham Urban Village.

* To encourage development of Sandringham Shopping Centre as an active, safe, attractive coastal, commercial, community and housing node.

* To maintain a human scale and diverse and active building frontage at street level.

* To protect the foreshore, dwellings, public and private open space, public pedestrian areas and solar collectors from overshadowing.

* To maximise views of the bay and public street areas.

* To minimise overlooking of private open space associated with dwellings.

* To improve energy efficiency in building design and urban form.

* To maintain consistency with urban design and development objectives in the Bayside Coastal Strategy, 1997 and the Victorian Coastal Strategy.

* Buildings and works complement Sandringham's unique character with sympathetic contemporary design that respects heritage places.

- Follow Sandringham's pattern of narrow repeating frontages at street level.

- Follow the general 2-3 storey height of buildings at the street frontage in the shopping centre.

- Incorporate attics and set back of upper storeys from the frontage to complement scale of streetscapes.

- Respect the form and orientation of adjoining buildings.

- Have a "public face" to building elevations with detail in the facade treatment, windows, entrances and balconies LOCAL PROVISION

- Incorporate decorative or distinguishing features on corner buildings to add variety and legibility to the streetscape and highlight key locations within the shopping centre.

* In the retail core area, a fourth storey be permitted on corner sites or other sites where the setback of the fourth storey from the street frontage has a minimal visual impact from ground level.

* In the Bay Road office precinct, a maximum height of three storeys be permitted.

* In residential precincts (including the northern side of Abbott Street and south-west of Sandringham Road and Fernhill Road North), a maximum height of three storeys be permitted providing the third storey is set back from the street frontage in a similar way to the fourth storey setback of the retail core area.

* The layout of new buildings minimise the potential for overlooking private gardens and maximise views of public streets and the foreshore.

* The height and bulk of new buildings minimise overshadowing private gardens, public pedestrian areas and solar collectors.

* Building materials include the use of red brick, cream render and other complementary materials that respect Sandringham's Edwardian character influenced by key buildings.

* Shelter be provided to improve pedestrian amenity by providing continuos shop front verandahs and that verandah posts be incorporated only if heritage restoration is relevant.

* Balconies and rooftop courtyards providing views of the street be encouraged in commercial areas.

* New buildings and major extensions achieve a 4 or 5 star energy rating using the Energy Victoria's House Energy Rating Scoresheet.

* Storage space for bicycles, outdoor clothes drying and recycling collections be provided.

* The design of vehicle access ways and parking minimise impact on the pedestrian environment and streetscape.

* Street trees and established trees on private property be retained and opportunities for new plantings be pursued.

7. As can be seen from the above extract, the Urban Villages Policy contemplates in some limited circumstances development up to four storeys in height. While to-date there has only been a small number of projects which have sought to implement the Urban Villages Policy, the Responsible Authority is undertaking a review of those aspects of the Urban Village Policy relating to heights and has in response to Amendment C2 adopted as policy a three story height limit for activity centres. Nevertheless Clause 22.04 as set out above remains as the policy relevant to this project in the Planning Scheme Ordinance.

8. The proposal is for a three and four level building over a basement car park. The basement has provision for 24 car spaces and is accessed by a ramp to Abbott Street. The ground floor level contains five retail tenancies with active street frontages to both Waltham and Abbott Streets. The first and second floors of the building contain 12 two storey dwellings set around a central court or light well. Two of these 12 dwellings are three bedroom dwellings, and the remainder are two bedroom dwellings. At third floor level there is a single three bedroom dwelling located at the western corner of the site and a communal rooftop garden for all of the dwellings within the development. The architecture of the project is pleasing and modern with design details which reflect the Bayside location, makes some oblique references to interwar architecture, and has a richness of detail which respects the relatively high level of articulation and decoration found on buildings within the Centre. The Waltham Street and Abbott Street elevations are attached to this decision.

9. Having inspected the site and considered the submissions I think that there are two issues of importance, that is scale and car parking, and four issues of lesser importance, privacy, open space, loading and unloading, energy efficiency and flooding.

10. There are a wide range of ideas in relation to the appropriateness of these building heights within this shopping centre. The existing Urban Village Policy advocates buildings which adopted the two to three storey heights of buildings in the shopping centre generally, and contemplate buildings or parts of buildings which are four storeys in height at corner locations. Mr Haddaway does not necessarily oppose buildings which are three or more storeys in height within the Urban Village Area, Mr Haddaway having been part of the Urban Village Steering Committee, rather he opposes this project for reasons associated with energy efficiency and car parking. The other respondent objectors vigorously oppose the scale of the proposed building, and I think can fairly be said to have reservations about a three level building and the believe that a four level building is completely out of the question. As has already been indicated the Responsible Authority has adopted an informal policy setting three level height limits for activity centres, and has refused this project because of its scale. The officers recommended approval of the project on the basis of the deletion of the fourth level, a proposition not accepted by the Council which raises the question that the Council has reservations about even a three level building on this site.

11. Having inspected the site I am of the view that the most sensitive approaches to the site are those along Abbott Street, because it represents the boundary between the commercial and residential area. From the Abbot Street perspective the building is essentially a three level building with a smaller four level section located at the corner of Waltham Street. In my view the buildings which set the scale to which this building should respond on Abbott Street, are the Masonic Hall, and the Art Déco building containing shops and dwellings at the corner of Abbott Street with Station Street. The articulation of the proposed building is much different to and more detailed than that of the Art Déco building, but at three levels the overall height of the proposed building is very similar to that of the Art Déco building, and in may view responds appropriately to this building which sets the scale of buildings along this streetscape. The higher parts of the proposed building, that is the fourth level and the decorative corner tower address the corner in urban design terms and are all within the height parameters created by higher elements of the Masonic Hall, indeed the higher elements of the Masonic Hall are much more massive. Therefore not only does the proposed design directly respond to the policy framework set out in the planning scheme, it in my view reasonably responds to the nature of surrounding development.

12. It is true that the scale of the proposed building is different to that found in the surrounding residential areas, it is true that the scale of the proposed building is different to that of nearby single storey buildings within the shopping centre precinct, but in my view it is difficult to mount a rational argument which says that a building on the site should respond to these lower elements. There is no suggestion that Sandringham shopping centre should not be an Urban Village and that it does not possess the elements which make it attractive as a place for the creation of an Urban Village. In my view the proposal both in terms of the mix of its uses and the urban design outcome which is achieved responds appropriately to this broader planning objective.

13. In relation to the general issue of scale there were a number of secondary arguments put forward, firstly the building was criticised because it was built to the street boundaries, as is common within a shopping centre, although the building is predominantly residential in its use, and secondly the building was criticised because of its 100% site coverage. I do not accept that either of these submissions are sustainable. Buildings in this shopping centre, as in most shopping centres are built to the street frontage. In urban design terms this is a defining character of a shopping centre while residential uses are appropriate in shopping centres above ground floor level, this does not mean that it is appropriate to adopt building forms and setbacks which would only otherwise be found in residential areas, rather notwithstanding its use the building must respond to the character of the shopping centre and not some other character. Site coverages of 100% are not uncommon in shopping centres, and in this particular case the 100% site coverage has the desirable outcome that except for the basement ramp, active shop frontages front all street frontages of the site.

14. When relatively small site are redeveloped in existing shopping centres it is usually not practical, and it is often not desirable, to provide all the commercial car parking demand on-site. Therefore for small retail tenancies I think its reasonable to provide one on-site staff car space, with customers relying on the pool of publicly available car parking within the shopping centre. Similarly for residential development within a shopping centre such as this it is reasonable to rely on the pool of publicly available car parking for visitor car parking, while on-site car parking for the use of residents is to be preferred, although there will be circumstances in which it would be appropriate to reduce or waive car parking for residents also.

15. On this basis if one allows 5 car spaces for the retail tenancies, the question then is how many car spaces should be required for the 13 dwellings. If one applies the Urban Village Policy 13 car spaces are required, if one applies the Good Design Guide 20 car spaces are required, and if one applies the forthcoming Res Code 16 car spaces are required. This results in an overall requirement, including the 5 for the retail tenancies, of either 18 car spaces, 25 car spaces, or 21 car spaces. Twentyfour car spaces are provided on site.

16. The actual car parking demand of a proposed development can only be known once the building is in use, and even then will vary from time to time. Given that I am of the view that it is reasonable for customer and visitor car parking demand to be met from the pool of publicly available car spaces within the locality, then in my view one can be reasonably satisfied that adequate provision is made on-site for resident and staff car parking demands. I am reinforced in this conclusion by the fact that this particular site has too long street frontages, and a large number of on-street car spaces immediately adjacent to the site itself.

17. Some concern was expressed about the safe operation and design of the car park entry ramp. Mr Naughton tabled a letter from a traffic engineer indicating that the ramp complied with the Australian Standards. The ramp is a one way ramp and will require appropriate warning devices, mirrors and the like, but I am satisfied that a suitable design could be achieved.

18. The project was criticised on the basis of the provision of open space for each of the dwellings. The dwellings within the project have access to small balconies, internal courtyards, and communal rooftop spaces. I am satisfied that the provision of open space is reasonable in the context of dwellings within a shopping centre environment.

19. The project was criticised on the basis of its impact on the privacy of the existing flats on the north side of Abbott Street. In my view the separation distance between the proposed building and this affected building across Abbott Street is so large that privacy cannot reasonably be regarded as a problem.

20. The project is criticised because there has been no on-site provision for loading and unloading of goods. The development proposes five small retail tenancies. In my view having regard to the location of the site and its extensive street frontages, the best and the most practical solution for loading and unloading to this site is via a kerbside loading area. The actual location of such an unloading space is a matter for Council in the exercise of its responsibility to manage on-street car parking and loading within the shopping centre.

21. Mr. Hadaway in particular was concerned that the building was not as energy efficient or as environmentally sustainable as new development should be in the context of the Urban Village Strategy. While it is true that the building does not employ what could be regarded as active measures to attain energy efficiency, a number of passive design techniques have been employed to promote energy efficiency an in particular to overcome the disadvantages of the site orientation. The use of the interior light court, improves solar access for dwelling located on the south side of the building and enables flow through ventilation in each of the dwellings.

22. The subject land is affected by overland stormwater flows in storm events. This was raised as a matter of concern by some of the objectors. However, Melbourne Water who is ultimately responsible for this issue is satisfied that the flooding issue can be managed by the imposition of a condition on the permit in relation to the design of the basement entry ramp. I accept Melbourne Water's advice in this regard.

23. It is my conclusion that this project is a thoughtful response to the Urban Village Strategy and an appropriate building for this important site.