Ms R Wilson, Solicitor. Ms Wilson called Mr H Turnbull, a Consultant Traffic Engineer of Traffix Group Pty Ltd, as an expert witness.

1. This is an Application under Section 77 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Applicant for review of a decision of the Monash City Council ("the Responsible Authority") to refuse to grant a permit.

1. By Order dated 28 May 2009 we amended the permit application by substituting in it the Burgess Associates Drawing Nos 001 to 004 inclusive all being Revision B dated 21/4/09, and Drawing Nos 005 and 006, both being Revision A dated 1/9/2008.
2. We also directed that the applicant for review/permit applicant file and serve larger scale plans as directed at the hearing and perspectives taken at eye level from the east and the west of the proposal, being from the west side of the laneway and the west side of the property at 82 Railway Parade south and also from the east side of Huntingdale Road. We directed that the Responsible Authority file and serve comments on those perspectives and provide the opportunity for the applicant for review/permit applicant to file and serve a response to what was filed and served by the Responsible Authority.
3. We also directed that the Responsible Authority file and serve advice of approval of Amendment C57 to the Monash Planning Scheme if any approval is given prior to the final order in this matter. It will not be necessary for any response to this direction.
4. The directions were satisfied, except for the direction with respect to Amendment C57. We have taken into account what was filed and served in response to the directions in coming to our decision in this matter.

1. The subject land is on the west side of Huntingdale Road approximately 13 metres south of Railway Parade South. It is regular in shape with a frontage of 6.4 metres to Huntingdale Road, a depth of 29.11 metres, and an area of 186.3m2.
2. This is one of a group of seven shops on the southwest corner of Huntingdale Road and Railway Parade. It has a first floor which contains a two bedroom dwelling. The remaining shops are all single storey. No onsite parking is provided for the dwelling and shop. There is angled car parking at the front of the shops in a setback from Huntingdale Road.
3. Six of the shops are in the Business 1 Zone. There is a pharmacy, at the southern end of the group on a wider lot, which is in the Residential 1 Zone. There is a medical centre to the south of the pharmacy. The medical centre, which is a converted dwelling, was vacant at the time of our inspection.
4. There is a 6.1 metre wide laneway at the rear, and to the west of the laneway is a residential area in a Residential 1 Zone. The dwelling on the opposite side of the laneway fronts Railway Parade South.
5. The Glen Waverley Railway line is to the north of Railway Parade South and the Jordanville Railway station is to the east of Huntingdale Road. North of the railway line is the Riversdale Golf Club, the Riversdale Bowls Club and the Glen Iris Valley Recreation Club.
6. There is a railway car park with 57 car spaces for commuters on the north side of Railway Parade South. The main railway car park is on the east side of Huntingdale Road.
7. There is another small Business 1 Zone south of the Jordanville Railway Station containing shops and three double storey office buildings.

1. The proposal is for:
   • Reduction of the area, and refurbishment, of the existing shop. Four car spaces 2 x 2 in tandem are proposed at the rear, with provision for bin storage, and storage under stairs and a 1 metre wide shelf at a height of 1.9 metres,
   • At the first floor level retention of the existing two bedroom dwelling with a revised layout including a balcony to Huntingdale Road,
   • A two bedroom dwelling at the rear at the first floor level and a mezzanine level above with rear balconies at each level,
   • A two bedroom dwelling at second floor level with balconies at the front and rear,
   • Light would be from the east and west facing balconies, from light courts on the southern boundary and the northern boundary, and skylights for unit 3.
2. The maximum height of the building is proposed to be 11.2 metres. The building would be four levels including the mezzanine level.
3. The setbacks would be as follows:
   • At ground floor level, the shop would be built to the front boundary and the car spaces at the rear would be to the rear boundary.
   • At first floor level, the balcony to unit 1 would be to the front boundary and the balcony to unit 2 would be to the rear boundary.
   • At mezzanine level the balcony to unit 2 would be 0.7 metres from the rear boundary.
   • At third floor level the balcony to unit 3 would be 0.5 metres from the front boundary and the rear balcony would be 2.7 metres from the rear boundary.

1. The subject land is covered by the Monash Planning Scheme and is in a Business 1 Zone which is the subject of Clause 34.01. The permit is not required for use of land for a shop and a permit is not required for use of land for a dwelling as the proposal meets the Section 1 condition that any frontage at ground level must not exceed 2 metres.
2. A permit is required for buildings and works pursuant to Clause 34.01-4. A permit is required for accommodation in the Business 1 Zone.
3. Clause 55 does not apply to the proposal because it is four storeys. Clause 52.06, Car parking, applies to the proposal. Clause 52.06-1 provides that where the floor area occupied by an existing use is increased the parking requirement only applies to the floor area of any extension of the use provided the existing number of car spaces is not reduced. No car spaces are presently provided for the shop and dwelling. Clause 52.06-1 also provides that the table at Clause 52.06-5 sets out the number of car spaces required. The table sets out a requirement for two car spaces per dwelling and four car spaces are therefore required. A permit may be granted to reduce or to waive the number of car spaces required by the table.
4. Reference was made to relevant planning policy. Ms Wilson, for the applicant for review/permit applicant, submitted that there are no local planning policies applying to the subject land.

1. The Grounds of Refusal were:
   1. The proposed development is not site responsive and has not paid due regard to the character of the area with regards to Clause 22.01-3 of the Monash Planning Scheme.
   2. The proposed development is out of character with the existing development in the area, in particular with regard to mass, bulk and scale and building form.
   3. The proposed development of the site is considered unsuitable having regard to traffic and parking considerations.
   4. The proposed development will have an adverse impact on the amenity of nearby properties, in particular with regard to inappropriate visual impact and the over-spill of car parking on the street network.

1. The Grounds of Application for Review were:
   1. Responsible and has regard to the character of the area.
   2. Responsive and proper redevelopment of the area. Given the Business 1 Zone, in respect to proposed mass, bulk and building form.
   3. The proper car parking and traffic considerations apply and are in excess of the required provisions.
   4. Will have no adverse effect or impact on the amenity of the area.

1. Ms Moser, in her written submission for the Responsible Authority, addressed the grounds of refusal. She said that the use of the site for a shop at ground level and shop top residential development is consistent with the principles of Melbourne 2030, State and Local policies and the Municipal Strategic Statement. She submitted that this "should not be translated into open slather approach to redevelopment" particularly in a small commercial area with a residential interface such as this.
2. Ms Moser submitted that the proposal "with its four level height" is too high and is out of scale and context with its commercial surrounds and the low-scale environment of the residential area to the west. Ms Moser pointed out that there are single storey dwellings with private secluded open space at the rear, and there are only seven premises in this commercial area all of which, except for the subject land, are single storey.
3. Ms Moser submitted that Amendment C57 to the Monash Planning Scheme would see refinement of the commercial hierarchy and under the Amendment a four-storey building would not be supported and three storeys would be the maximum level of height sought.
4. Ms Moser said that the provision of four levels on this narrow site is out of context with its surrounds and fails to meet policy. She said that the presentation to the laneway at the rear would be a four level building with the garage at ground level and three levels above and the overall height would be 11.2 metres. She said that this contrasts sharply with the commercial buildings around the subject land and there would be a substantial contrast with the residential area to the west.
5. Ms Moser said that the car parking on the west side of the laneway at the rear restricts ability to provide two sets of tandem car spaces as proposed. She said that restricting car parking along the west side of the laneway would exacerbate parking issues in the area, and lead to parking of vehicles on Railway Parade South and in front of residential properties along Railway Parade.
6. Ms Wilson submitted:
   1. Melbourne 2030 recognizes and the Tribunal has often acknowledged that:

Higher-density housing will be encouraged in and around the Neighbourhood Activity Centres. It should be designed to fit the context and enhance the character of the area while providing a variety of housing options for different types of households. Development of these centres can improve access to local services and accommodate the changing housing needs of those who do not want to break their links with their local community.

1. It is therefore submitted that the decision on this application comes down to the contextual response of the proposal to its location. Whether the proposed design and built form would contribute positively to the urban character of the area whilst minimizing detrimental impact on neighbouring properties, and whether the proposal would result in a net community benefit in relation to accessibility, efficient infrastructure use and the aggregation and sustainability of commercial facilities.
2. Ms Wilson submitted that there are only two sites north of the subject land and both are shops in the Business Zone. She submitted that views to the north wall of the proposal would be only from the rear of those shops, the right of way, Railway Parade South and the railway car park. She submitted that the railway line would impede all other views of this wall. Ms Wilson submitted that the fall from the south, ie the 3 metre fall from the pharmacy to the subject land, would impact on views to the south wall and limit its visual impact.
3. Ms Wilson submitted that there is significant boundary planting on the east boundary at the rear of the dwelling at 82 Railway Parade South, which is on the opposite side of the right of way at the rear, with a row of dense canopy trees extending south of the subject land.
4. She said that the proposal has been skilfully designed through the use of levels incorporating a mezzanine to minimise the four storey height. She submitted that the Council has "made much" of the maximum of 11.4 metre height but this is only for a 4.27 metre length of the 29.11 deep site and is 5.4 metres from the rear boundary and 19 metres from the front boundary. She submitted that the remainder of the building has a height of 8.4 metres. Ms Wilson submitted that whilst the proposal has a maximum height greater than its neighbours, the intensification is supported by relevant planning policies.
5. Mr Turnbull noted that four onsite car spaces are proposed, as required by Clause 52.06, and that these would be provided by two sets of tandem spaces accessed from the rear right of way. Mr Turnbull assessed likely parking demand based on parking rates set out in Clause 55, and car ownership results of the 2006 Australian Bureau of Statistics (ABS) Census for similar dwelling types in the Chadstone postcode.
6. Mr Turnbull submitted that the Clause 55 requirement for car parking would be two car spaces for the two proposed new two bedroom dwellings. It was the evidence of Mr Turnbull that provision of no more than one car space for each of the proposed dwellings would be appropriate.
7. It was the evidence of Mr Turnbull that there were two scenarios for car parking. The first scenario was where parking was banned along the west side of the right of way and two car spaces are provided in tandem for each of the proposed new dwellings. The second scenario was where parking along the right of way was not banned and one space was provided for each of the two proposed new dwellings.
8. We have had the benefit of the perspective drawings that were available at the hearing, and also the perspective drawings that were provided following our directions. We have also had regard to the written submissions that we have received thereon.
9. We have come to the conclusion that the proposal is unduly bulky having regard to its surrounds. The perspective from the east side of Huntingdale Road definitely indicates a three-storey building surrounded by single storey buildings. The perspective from the west boundary of the right of way at the rear shows what we consider to be undue mass and bulk having regard to its surrounds as does the perspective from the west boundary of the rear yard of 82 Railway Parade. We accept that vegetation within the rear yard of 82 Railway Parade south does help to screen the proposed development but this is merely borrowing from what is provided on another property to minimise the impact of bulk and mass when viewed from that property.
10. We also consider that the perspectives indicate undue bulk when viewed from either the north or the south.
11. We have concluded that the Council is probably correct in its submission that a three storey development is the most that would be acceptable. We consider that there might be some increase in setbacks from east and west however. We acknowledge that the properties to the north and south are single storey but it may be that they will be redeveloped themselves in the future.
12. We have therefore come to the conclusion that a permit should not be granted.
13. We did give some consideration as to whether we should provide the opportunity for the applicant for review/permit applicant to file and serve revised plans. We consider however, that it would be difficult to provide guidance for an alternative proposal with the confidence that that guidance might lead to a proposal for which a permit should be granted. We consider that it is a matter for the applicant for review/permit applicant to consider if it is desired to make a new application for a permit.
14. We would have had some concerns about the car parking if we were to direct that a permit be granted. The provision for four car spaces is tight having regard to vehicle manoeuvrability and provision for storage. The alternative is to direct the grant of a permit for reducing the standard parking requirements and providing for two car spaces only. We have some reservations as to whether two car spaces would be adequate.

1. For the above reasons it is appropriate that a permit not be granted. We will so order.