The application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit is allowed. The order of the Tribunal is that the decision of the Responsible Authority is set aside.

A permit is granted in accordance with the direction set out below.

Appearing for Stonnington City Council: M Bastone of ERM Mitchell McCotter Pty Ltd, town planners.

Appearing for Buckerfield Pty Ltd: Mr. Michael Wright QC with Christopher Townshend of counsel. Mr. Wright called as expert witnesses: Ms Amanda Kyte Ring of SJB Planners Pty Ltd and Mr. Timothy Vernon, Landscape Architect. Mr. Wright also provided a written statement of evidence prepared by Mr. Grogan, traffic engineer, of Grogan Richards Consulting Engineers.

Appearing for themselves, as objectors/respondents: J. Robbie, L. Kortlang; J. Sitch; A. Finney; J Charvat.

To construct 12 flats (amended from 13 flats) in a four storey building over basement parking for 17 cars (amended from 19 cars).

The applicant had submitted a written request (letter dated 10th May 1999) to substitute amended plans. These plans reduced the number of dwellings from 13 to 12 and the number of parking spaces from 19 to 17, together with consequent changes to the basement car-access ramp (to reduce the gradient) and changes to the layout of the building. Having sought the views of those at the hearing, I directed that the amended plans be so substituted as the permit application plans.

The site is rectangular in shape with dimensions of:

Vol 1369 Fol 699, Parish of Prahran

Stonnington Planning Scheme. Residential C zone. There are no overlay controls. Under the exhibited, new format planning scheme, the site is to be zoned Residential 1 and the overlay control is to be Design and Development overlay.

2. The proposal does not meet the provisions of the Good Design Guide.

3. The proposal will result in excessive detriment to the amenity of the area.

4. The proposal will result in significant loss of vegetation.

1. The proposal is not an overdevelopment of the site.

2. The proposal meets the provisions of the Good Design Guide.

3. The proposal would not result in excessive detriment to the surrounding area.

4. The proposal will not result in the loss of significant vegetation.

During the course of the hearing I was provided with a substantial array of information relevant to the decision to be made in this Application for Review. This material includes written and oral submissions, written and oral statements of expert opinion and a large number of photographs of the subject site and its locality. I have also made a number of visits to inspect the site and its locality.

Mr. Bastone also provided with a copy of a decision by the Administrative Appeals Tribunal in which the Tribunal refused an appeal against Council's decision to refuse a permit for a four storey building containing 24 serviced apartments on this same site (AAT 1997/082811).

In brief summary this background information included the following facts.

Planning controls and policies relevant to this application for review include the following.

¨ Clause 3-3A, which provides the state framework for assessment of medium density housing including to improve housing choice, make better use of infrastructure, and to make use of the Good Design Guide for Medium Density Housing

¨ Clause 14-2, which includes support for urban consolidation, the maintenance and enhancement of existing neighbourhood character and appropriate housing design standards

¨ Clause 21, which establishes the Good Design Guide for Medium Density Housing

¨ Clause 119 - relating to the Residential C zone's objectives and controls.

Council's residential code supports the Good Design Guide and requires that new housing should "maintain and reflect the particular character (eg scale, density and style) of the area and protect the amenity of adjoining properties".

Because of the substantial criticism of Council's Municipal Strategic Statement by the Ministerial Panel that considered the new format planning scheme, I see little value in referring to this document as it currently stands.

I have drawn a description of the proposed development from the submission by Mr. Bastone and the statement of evidence by Ms. Kyte Ring which I consider, in their combination and in relation to the selected extracts, provide an adequate description of the proposal.

"The development contains 12 dwellings comprising either one or two bedrooms (7 x 1B and 5 x 2B) and open plan living areas. Each dwelling has private open space in the form of a balcony or courtyard terrace and, in each case, these are positioned adjacent to the main living areas.

Carp parking for the dwellings and visitors is provided in a secure basement car park accessible via a driveway and ramp positioned at southern edge of the site frontage (modifying an existing crossover). The basement is positioned to accommodate root growth for some canopy trees. Stairs and a lift in the basement provide ready access to the residential levels above.

The residential component of the development comprises four floors, set into the slope of the land. All elevations are articulated to achieve a high level of visual interest and reasonable privacy between the private open spaces. In addition, floor area diminishes at the upper levels (not characteristic of neighbouring buildings) so as to maintain solar access between neighbours and to contribute to the pattern of spacing between buildings evident elsewhere in the streetscape.

The building is richly detailed using variable fenestration, rendered, rusticated and embossed masonry, copper panelling, slatted timber and steel fencing and different balcony balustrades. These features are variously used to create light and shade across its elevations .......... In doing so, the building presents as a complex and visually interesting form............."

"The proposed development has the following features:

* a ground floor setback of 3.7 metres to Darling Street. First floor setback of between 3.7 to 4.5 metres (excluding the protruding balconies), second floor setback of 4.5 metres and a third floor setback of 19.8 metres; (the third floor effectively occupies only the rear half of the building)

* a ground floor setback of 0.3.7 metres to the northern boundary. First floor setback of between 1.5 and 2.7 metres, second floor setback of 1.5 to 3.9 metres and a third floor setback of between 1.5 and 3.9 metres;

* a ground floor setback of 0.7 to 4.6 metres to the southern boundary. First floor setback of between 2.2 and 4.6 metres, second floor setback of 2.9 and 4.6 metres and a third floor setback of between 4.6 and 5.7 metres;

* a ground floor setback of 0 to 3.7 metres to the western boundary. First and second floor setback of 6.2 metres (excluding protruding balconies) and a third floor setback of 8.9 metres);

* due to the fall in the land a building height ranging between 8.5 and 13 metres."

The site has a fall of 2.0 metres from north to south and about 4.5 metres from west to east.

I am prepared to adopt the description of the adjoining development that was provided by Mr. Bastone (with additions by the Tribunal).

"To the north - a 12 unit three storey development with undercroft car parking [giving an effective height of 4 storeys to Darling Street] (27 Darling Street). This building is setback approximately 3.6 metres to Darling Street frontage and 4 metres to the common boundary with the subject site. There are several first, second and third floor habitable room windows that are orientated towards the subject site.

To the south - a 12 unit three storey development with undercroft car parking [also giving an effective height of 4 storeys to Darling Street] (23 Darling Street). This building is setback approximately 3.7 metres to the Darling Street frontage and 2 metres to the common boundary with the subject site. There are several first, second and third floor habitable room windows that are orientated towards the subject site.

To the west - a 36 unit three storey development with undercroft car parking (30 Murphy Street). This building is setback approximately 3.2 metres to the common boundary with the subject site.

To the east - across Darling Street is a 2 storey dwelling at 28 Darling Street, a 3 storey unit development at 26 Darling Street and a 3 storey unit development at 24 Darling Street."

Darling Street is a designate collector road that runs in a north-south direction between Alexandra Avenue and Toorak Road, directly to the west of the South Yarra train line. Council officers estimate that Darling Street carries approximately 5,000 vehicle movements per day.

On street parking is restricted to generally 4 hours between 9 a.m. and 9 p.m. and 9 p.m. Monday to Friday on the east side and 1 hour between 9 a.m. and 9 p.m. Monday to Friday and 9 a.m. and 1 p.m. Saturday. Due to the number of multi dwelling developments in the street and the proximity to the Toorak Road retail and entertainment precinct there is a heavy demand for on-street carparking."

1. From my assessment of the submissions and evidence presented to me, together with my own inspections of the site and its locality, I consider that the issues that are important to the assessment of this application are:

* its contribution to the streetscape character of the locality

* its effect on the immediately adjoining properties

2. In considering the effect of the proposed development on the local streetscape character, I have set out below my own assessment of the existing character.

* The section of Darling Street within a considerable distance of the subject site is dominated by blocks of flats of 1950s - 60s vintage. Building heights vary between east and west sides of Darling Street, due to the fall in the land. Buildings on the western side of the street are predominantly of 4 storeys height (3 residential levels over undercroft parking, with the parking usually clearly visible from the front). On the eastern side of Darling Street, buildings are generally of 3 storeys with the parking in basement towards the front of the site.

* There are a number of large, two storeyed Victorian `terrace' style dwellings on both sides of the street but, due to the high ceiling heights of these dwellings, they appear to be very similar in height and scale to the nearby blocks of flats. In the oblique view of Darling Street, the dominant visual characteristic is of large building blocks of generally simple massing. I found it quite difficult to differentiate, in the oblique view, between the blocks of flats and the Victorian terraces.

* Almost all buildings are set close to the street. Landscaping in the street is predominantly dependent on the well spaced but substantial street trees. While there are a number of important trees and shrubs growing in private gardens, these generally appear to be mature specimens growing in the narrow front setbacks. The subject site, with its larger setbacks and over-mature garden, provides one of the few strong landscape elements on the western side of the street.

3. At the street frontage, the proposed development will generally replicate the heights of its northern and southern neighbours (it will in fact be slightly lower). It will, however, introduce a much more elaborate and sophisticated elevation, having a variety of colours, materials and surface planes. Mr. Vernon's landscape proposal includes 3 medium sized evergreen trees and two medium sized deciduous trees within or immediately adjoining the site's frontage setback. These trees should provide a more comprehensive and coordinated landscape frontage than occurs on most of the nearby properties.

4. The building's setbacks from north and south boundaries will provide building-to-building spacing that will replicate the general characteristics of other buildings in the street.

5. The building's architecture could be described as a post-modern, Mondrianesque style of architecture. I consider it to be a reasonably successful version of this style of architecture.

6. If the building's design has one failure, as judged by its `fit' into the streetscape, it is that its highly articulated architecture and variegated finishes and colours will contrast strongly with the very bland characteristics of neighbouring buildings. In this sense, its innovative character might be considered to be inappropriate - where something much blander would provide a better streetscape fit. However, that suggests that mediocrity should be complemented by further mediocrity. I am not intending to support such an approach. I do not consider innovative architecture, at least, not in this case, is a justification for concluding that the building is inappropriate.

7. On the basis of related building height and front setback, together with general massing effect and repetition of the common spacing between buildings, I consider that the proposed development will fit well within the nearby streetscape.

8. Mr. Baston's submission's made a number of criticisms of the effect of the building on its neighbours:

* loss of daylight, shading of lower windows on the building to the south

* loss of privacy - both between existing and new buildings and between separate dwellings within the proposed building.

9. The building falls outside the Good Design Guide's building envelope (Element E6) though only by a relatively small margin. I consider that, if the building's design were to be modified to meet this envelope, the neighbours would not have a significantly different perception of the building's bulk. In this example, a more critical test is that provided by the Good Design Guide's Technique E6T7 (Daylight and Visual Bulk) which requires that, for walls opposite an existing habitable room window, the wall height should not be more than twice the distance separating wall and existing window (a ratio of 1:2), with a further criteria relating to the arc within which this limitation applies.

10. Mr. Baston's submission claimed that the proposed development fails this test on both its northern and southern elevations. However, I cannot determine how Mr. Baston has arrived at his calculations. I have chosen to measure the height of the proposed wall from the level of the floor containing the existing window. (I can only assume that Mr. Baston measured his wall heights from ground level. If so, this seems to me a nonsensical approach, given that the ground level is for parking). Using my interpretation, the new walls comfortably meet the requirements of this technique, with the highest point of the south wall falling well within the required ratio for its setback from adjoining existing windows (giving a ratio of about 1:1.7 -6.5 metres width to 11 metres height) and the highest point on the northern wall falls inside this ratio even more easily (about 1:1.3 - 6.5 metres horizontally to 8.0 metres height after allowing for the 1.3 metre rise in floor level of the rear section of No. 27).

11. The drawings lodged with Council provided diagrams showing the net increase in the shadows that would be cast on the building to the south, after allowing for the effect of existing structures and established vegetation.

12. A comparison between the applicant's diagram for shading on the wall elevations of No. 23, and the shading on plan indicates that the wall shading for 12.00 a.m. (midday) for the equinoxes is drawn quite inaccurately. The shading that is shown on the north elevation of No. 23 is vastly exaggerated - much to the disadvantage of the applicant's case. My extrapolation of the shadow shown on the plans (Drawing No. TP09) onto the building section (Drawing No. TP10) together with confirmation provided by sunlight protractors: Commonwealth Experimental Building Station, Technical Study No. 23: "Sunshine and Shade in Australasia"), indicates that the midday shadow would fall just below the tops of the lowest level of windows. The building to the north of the subject site will cast a shadow of very similar extent onto the proposed building's north face. Even the most adversely situated windows in No. 23 - those on the lowest floor level - will receive access to some sunlight at the equinox, either in the morning or the afternoon.

13. The existing vegetation presently casts a much more extensive shadow onto the north face of No. 23 than will the proposed building. The construction of the proposed development will result in clearing this vegetation, so that while some windows will have increased shade from the new building, some will gain greater access to sunlight as a result of removal of existing vegetation.

14. In the circumstances of an inner suburban location, where residents are making a number of trade offs in their dwellings' amenity in return for increased urban accessibility, I consider that the outcome strikes a reasonable balance.

15. Council was concerned about loss of privacy, both between existing and new dwellings, and between the different balconies of the proposed development. Mr. Baston's submission pointed out that the proposed development included a number of "innovative" solutions to the need to ensure reasonable privacy between existing and new dwellings.

16. As Ms Ring pointed out, the amended design minimises the number of north-facing living rooms and uses a number of window box elements to create east and west facing windows for room adjacent to side boundaries. Windows facing north and south are mostly kitchens and bathrooms, with some bedrooms and side-windows of living rooms. The former at least are rooms which are less frequently occupied than other rooms. Many of these rooms are to have high sills. For the third floor, distances between north-facing living room windows and windows opposite are 9 metres; to the south, varying between 6.8 and 8 metres.

17. There are a number of balconies, particularly on the north, east and west elevations. These are typical of balconies found in many similar buildings and, thought they are large enough in some cases for residents to sit out on (particularly the western and eastern sections of balconies), I expect that their major value will be to provide a visual extension to the living room behind. As Ms. Ring pointed out, it is typical that many living room windows in neighbouring buildings already have sheer curtains to provide privacy to habitable rooms. I do not consider that this proposed development will impose unreasonable loss of privacy on adjoining dwellings, or between dwellings within the building.

* there proposed development would not have any significant effect on traffic amenity in Darling Street (a proposition that had been accepted by the Tribunal in the previous matter - appeal No. 1997/82811 - which involved a development with a somewhat similar number of parking spaces)

* parking provision conforms with the requirements of the Good Design Guide, including calculation of 2.4 visitor spaces.

19. I am prepared to accept this evidence as providing a reasonable assessment of the likely traffic and parking outcome of this development. However, Mr. Grogan's calculation of parking requirements is based, reasonably enough, on probable parking ratios. In a situation where cars will occupy whole spaces (ie. the concept of 2.4 visitors is nonsensical) there must be provision of whole parking spaces in a way that will ensure minimum parking overflow occurs. I consider that no more than one car space should be allocated to the exclusive use of any flat - whether by way of title or otherwise - and that the balance, ie. 5 spaces, be retained in common ownership for apportionment by the building manager between visitor spaces and any residents requiring more than one car. On the basis of Mr. Grogan's evidence, I propose that 3 spaces be held available at all times for exclusive use by visitors. If the future occupants or manager of the building consider that some other allocation is more appropriate, an application can be made to the responsible authority to vary this permit condition.

20. I considering this proposal, I have reviewed the previous decision of the Administrative Appeals Tribunal. That proposal was, in many respects, based on a building of approximately similar scale. In that case, the Tribunal found against the proposal on a number of grounds: neighbourhood character, site layout, building bulk and parking. In this case, the differences that the proponent has achieved in the modified design have, in my opinion, adequately addressed these issues. Building setbacks from side boundaries, which are carried through to the frontage, will ensure that the spacing between buildings, which has been identified as an important element of the streetscape, is retained; in the circumstances the landscaping provision will equal or better the landscaping associated with similar types of building in the area; the building's bulk is acceptable in terms of both streetscape and its effect on adjoining buildings is much reduced, particularly in respect to building to the north; the car parking provision will be adequate it terms of the type and size of dwellings which are proposed, subject to acceptable management of the parking spaces.

21. On this basis, I have concluded that it is reasonable that a permit be granted.

The Responsible Authority is directed under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987 to issue a permit which allows the construction of 12 flats on land at 25 Darling Street, South Yarra, generally in accordance with the endorsed plans and subject to the conditions as set out in Council's Officer Report dealing with this application and dated 14th December 1998, but varied as follows:-

Condition 3 to read "The plans to be endorsed as part of this permit to be generally in accordance with plans submitted by the applicant on the 10th May 1999 (including Drawings Nos. TP01C; TP02B; TP03C; TP04B; TP05B; TP06B, TP07C) but varied to show, to the satisfaction of the responsible authority:

* the basement layout reconfigured to provide additional space for the vehicle in space No. 17 to reverse and turn within the basement to exit in a forward direction

* provision of an intercom at the car entry point to allow visitors/drivers to communicate with residents of flats."

An additional condition to be added: "no more that one car space to be allocated to the exclusive use of the occupants of any flat."