Appeal under Section 77 of the Planning & Environment Act 1987 against a decision to refuse to grant a permit.

To develop and use of the site for the purpose of a nine level residential apartment building with ground level retailing at 67 Beach Street and partly demolish the rear section of the existing building at 18 Stokes Street and construct a three level residential apartment building including ground level carparking.

67 Beach Street and 18 Stokes Street, Port Melbourne.

The land consists of 2 titles of rectangular shape, together forming an L-shape with a frontage of 8.21 metres to Beach Street (67 Beach Street), a frontage of 9.14 metres to Stokes Street (18 Stokes Street) and an overall area of 484 square metres.

* fronting Beach Street, a two storey building occupying the full width of the site, previously used for retail and then office use

* fronting Stokes Street, a two storey historic building occupying the full width of the site, originally designed and used as a Masonic Temple and more recently used for offices.

Zonings affecting the whole of the site: Mixed Use zone.

Overlays affecting the whole of the site: Heritage Overlay (HO23) affects the whole of the site, the schedule to the overlay specifies No. 18 Stokes Street (HO233) as an individual building; the whole of the site is also within the Potentially Contaminated Land overlay.

1. The development is an overdevelopment of the site by virtue of overshadowing of the Port Phillip foreshore and car parking.

2. The proposal does not comply with the purposes or specific requirements of Council's Design and Development Guidelines for the area.

3. The proposed development will have a detrimental impact on the amenity of the area as a result of the building bulk and overshadowing of the public domain.

4. The proposal is contrary to the purposes, and guidelines for permit of Clause 140 (Conservation of Individual Buildings, Works, Trees and Sites of the Port Phillip Planning Scheme).

1. The proposal represents an appropriate level of development for the site.

2. The proposal has proper regard to the amenity of the Port Phillip Bay foreshore.

3. The proposal is consistent with Clause 140 of the Local section of the Port Phillip Planning Scheme (Conservation of Individual Buildings, Works, Trees and Sites).

4. The proposal is consistent with Clause 154 of the Local Section of the Port Phillip Planning Scheme (Urban Conservation Areas).

5. The proposal is appropriate within the neighbourhood and streetscape settings.

6. The proposal has proper regard to the amenity of neighbouring residential properties.

8. The proposed development is an appropriate response having regard to the constraints of the site and has regard to the built form and amenity of surrounding development.

9. The proposed development is consistent with all applicable planning controls and planning policies.

10. There is no proper basis on which the development should be refused and the grounds contained in the Council's notice of decision to refuse are not sustainable.

James Livingston, planning advocate, for the City of Port Phillip.

Stuart Morris of Council, instructed by Clayton Utz, representing Southern Capital Corporation Pty Ltd. Mr. Morris called, as expert witnesses, Mr. Rothe of Rothe Lowman Property; Mr. Greg Tucker of Greg Tucker and Associates Pty Ltd; Mr. Tim Biles of Contour Consultants Aus Pty Ltd; Mr. Bryce Raworth of Bryce Raworth Pty Ltd.

Ms. Liz McArthur, resident, representing Ms. Debbie O'Donnell and 49 Port Melbourne neighbours as objectors/respondents.

The parties and witnesses made both verbal and written submissions and statements of evidence. A number of plans, photographs and other documents were tendered to the Tribunal. The Tribunal inspected the appeal site and the surrounding locality during the course of the hearing.

At the commencement of the hearing, Mr. Morris presented to the Tribunal an alternative set of plans. Mr. Morris requested that the Tribunal should either direct that the amended plans be substituted for the original plans or that the Tribunal should direct, if it determined that permit is to be granted, that the original plans of layout should be made subject to a variation in accordance with the amending plans. The differences between the original plans and the amended plans were illustrated and explained to the Tribunal by Mr. Shane Rothe, Director of Rothe Lownan Property Pty Ltd, architect for the project.

Objectors had been advised in writing of the amending plans.

After considering the views of the parties to the hearing, the Tribunal directed that the amended plans be substituted for the original plans.

In the following and all other discussions involving compass orientation, it is assumed for the sake of simplicity that Beach and Rouse Streets run east-west, Stokes and Nott Streets (and streets with similar orientation) run north-south.

The site is situated in the south western corner of the block bounded by Beach, Stokes, Rouse and Nott Streets. The subject site is L-shaped and wraps around the northern and eastern boundaries of the adjoining allotment occupied by the Sandridge Hotel which itself is situated on the corner of Beach and Stokes Streets. A 3.05 metre wide blue-stone paved ROW/cul-de-sac runs off Stokes Street along the northern boundary of No. 18.

To the immediate east is a site (the Guilfoyle site) which is currently under development for a residential development of 8 storeys plus plant room - the Nautica Apartments. Beyond this, across Donaldson Street, is an existing residential development - Marine Apartments, also of 8 storeys plus plant room.

On the western side of Stokes Street, fronting Beach Street, is another existing residential development of 6 to 8 storeys. Other major residential redevelopment in the area includes Beacon Cove residential development a little distance to the west and a number of residential tower blocks further west of that.

To the north of the site, along the eastern side of Stokes Street, is a row of two storeyed Victorian attached dwellings (terrace houses). Another cul-de-sac runs southwards off Rouse Street towards the site - Portview Square. This cul-de-sac has, along its western side, the rear entries to dwellings facing Stokes Street, while along its eastern side are the frontages to another row of recently constructed, two storeyed attached dwellings (terrace houses).

Opposite the site, to the south, is Beach Street, a secondary road, and beyond that the Public Resort and Recreation zone (PPRZ) of the foreshore reserve and beach area south of Beach Road.

The Sandridge Hotel is presently vacant and is the subject of a separate permit application for a 7 storeyed residential development.

We have adopted the description of the proposed development which was provided by Mr. Tim Biles, of Contour Consultants Pty Ltd. Mr Biles described the development as the:

* "construction of 8 residential apartments over 9 levels above the existing Ground Level at 67 Beach Street - each floor level will comprise one apartment, except for the two smaller upper floor levels, which together form one apartment;

* demolition of the rear portion of the existing building at 18 Stokes Street and construction of 3 new levels in its place, comprising car parking at Ground Level, an apartment at Level 1 and an apartment at Level 2.

* refurbishment of the front portion of the existing two-storey building at 18 Stokes Street to accommodate a new building entry, stairwell and terrace areas for two apartments within this part of the development; and

* "retention" (rebuilding) of the existing Basement Level storage area and the Ground Level retail area (112 m2) at 67 Beach Street;

* provision of 15 on-site car spaces within the combined Ground Floor car park area of the two buildings, all of which are accessible via the side laneway along the north side of the Stokes Street building.

* a graduated front setback for the Beach Street building, which ranges from a zero setback for the first three levels to a 20 metres setback at Level 9;

* zero side setbacks for the Beach Street building, with the exception of light courts at each level;

* a separation distance of 3.3 metres between the Beach Street building and the Stokes Street building;

* zero setbacks on all boundaries for the Stokes Street building, with the exception of the front section of the north boundary along the laneway;

* internal access to both buildings from the Ground Level car park;

* a separate entry to the retail area and the apartment foyer for the Beach Street building;

* three-bedrooms for each apartment within the total development, with the exception of the two higher level apartments in the Beach Street building, which have two bedrooms; and

* individual balconies and terraces for each apartment within the total development.

The car parking area on the Stokes Street property includes four undercroft car spaces, which are also partly located within the section of the former rear laneway that has recently been acquired by the applicant".

We add the following analysis of the building's urban form on the Beach Street frontage:

The Beach Street elevation of the proposed building is generally to have the following form:

* levels 1 and 2 to have patios built to the street frontage, with enclosing walls 3.1 metres back to create enclosed verandahs

* level 3 to have a patio built to the street, but with an open patio and the southern wall being 3.1 metres setback

* levels 4 and 5 to have front walls set back 5 metres, balconies continuing to within 3.1 metres of the street for these levels

* level 6 front wall being set back 7.0 metres, but the open patio extending to within 5 metres of the street

* each of levels 7, 8 and 9 being progressively set further back, with the open patio in front of each level being formed by the roof of the level below.

We also note the following points with respect to the parking provision. The development proposes to provide 15 on-site car spaces at ground level with access from the ROW off Stokes Street. Two spaces are located in a separate parking area closer to Stokes Street and 13 in the larger parking area which is to the east.

In the larger parking garage, there will be 3 spaces in tandem and one space having an under-dimensioned length. Six spaces (including the three in tandem) which face the rear of the shop are under-dimensioned in width, having 8.21 metres overall, which also incudes provision for a public accessway past the parking spaces. All of the spaces in the larger garage are at right angles to, or extensions of, the access laneways which in turn connect with the ROW at a right angle. As stated above, the ROW has a width of 3.05 metres. Each garage has a separate access doorway from the ROW.

Existing Planning Controls and Policy Framework

There is an extensive range of planning policies and controls affecting the site. These include the following:

* The Port Phillip MSS, which seeks to encourage new medium density housing in particular areas, including the area between Beacon Road and Pickles Street abutting Beach Street (and including the subject land).

* Clause 19, relating to the requirement for good quality architecture and urban design

* The purpose and controls of the Mixed Use zone. This zone's purpose is: "To provide for a range of residential, commercial, industrial and other uses which complement the mixed-use function of the locality." A permit is not required to use land for a dwelling. A permit is required to construct two or more dwellings on a lot (Clause 32.04-5). A site analysis, as described in the Good Design Guide, together with a written statement that explains how the design responds to the site analysis, must be presented to Council. A permit is required for a shop

* The purpose and controls of the Heritage Overlay, which include, in part: "To conserve and enhance heritage places of ..... cultural significance. To conserve and enhance those elements which contribute to the significance of heritage places. To ensure that development does not adversely affect the significance of heritage places". The Heritage Overlay requires a planning permit for demolition, building and works and any external alterations to a building. Decision Guidelines include: "whether the location, bulk, form and appearance of the proposed building will adversely affect the significance of the heritage place" and "whether the proposed location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place".

* The `Bay Street South Mixed Use Area' under the Port Phillip "Commercial Land Use Policy", which encourages the "transition of the area from industrial to mixed use, with a substantial residential component".

* The "Port Melbourne Foreshore Strategy Plan (January 1995)", which sets out a number of land use objectives and design principles, including criteria relating to protection of the foreshore from significant overshading. The Strategy recommends that the subject land has the potential to accommodate a diversity of uses, that it should provide an active frontage to Beach Street and that the existing historic building should be retained. The Strategy makes specific comment about the amenity of the foreshore and control of shading of the foreshore: "New buildings should not significantly overshadow the foreshore or beach promenade. Only minor overshadowing (up to 12pm on 21 June) may be allowed".

* The Environmental Audit Overlay requires that the environmental conditions of the land must be made suitable for a sensitive use such as residential.

* The Port Melbourne Conservation Study Review (1994), which identifies 18 Stokes Street as being of local significance. The study notes that the front elevation is substantially intact and that the building contributes to the overall character of the precinct.

Proposed Planning Controls and Policy Framework

The site is subject to further planning controls as proposed in Amendment C5 to the Port Phillip Planning Scheme. This amendment has been exhibited and adopted by Council. It proposes to place the site in Design and Development Overlay DDO1-A1 which, for this site, would have two effects:

* apply a "preferred maximum height of 24 metres (14 metres if less than 5 metres from any road boundary)"

* add to the MSS's explicit policy for protection of the foreshore from shading by restating the same criterion within the DDO, where it would specify (using generally similar wording to the MSS) that "all buildings and works should be designed to avoid casting shadows beyond the southern side of the road reserve adjoining the Port Phillip Bay foreshore between the hours of 10:00 AM and 4:00 PM on 22 June (the winter solstice)".

The Department of Infrastructure has recently published the "Gateway to the Bay: Inner Melbourne Foreshore Urban Design Framework". This report (p3) sets out an "urban design strategy to reposition the Inner Melbourne Foreshore as Melbourne's principal urban waterfront. It identifies opportunities for the area to develop an international status and a role that is complementary to the successful Southbank experience and the emerging Docklands development, whilst preserving important heritage elements".

The report contains a number of recommendations, including:

* "That Gateway to the Bay be adopted by State and local government authorities and appropriately expressed in the State Planning Policy Framework and the Port Phillip planning Scheme

* That in accordance with the requirements of Section 12 of the Planning & Environment Act 1987, Port Phillip City Council has regard to the Victoria Planning Provisions and Gateway to the Bay when its Municipal Strategic Statement and Planning Scheme are reviewed.

* That coordination and implementation groups be established to manage areas of joint State and Local government interest.

* That a detailed urban structure plan with urban design policies and guidelines be prepared for both St Kilda and Port Melbourne, to identify actions and projects for implementation and establish priorities for future consideration."

The strategy deals with an area of foreshore extending from Port Melbourne to St Kilda. For the Port Melbourne section of the foreshore, the Strategy proposes a series of urban design outcomes, which include: "intensification of activities and resident population"; "architecture that considers and expresses the maritime theme"; "promote public enjoyment of the foreshore"; and, with respect to built form, to:

* "encourage buildings with an active interface to the street

* maximise views to the Bay by placing taller elements away from the water front

* higher density development is designed to protect the environmental quality (eg. solar access, wind and overshadowing mitigation) of the foreshore and other public open spaces within the precinct, including streets and civic spaces with high pedestrian usage (eg Bay Street and Gasworks)".

The accompanying plan indicates a "consistent low rise urban edge" along Beach Street, with "consolidation of medium-density mixed-use" to the north of this strip and extending to Graham Street. As no definition is given for the terms "consistent low rise" and "medium density mixed use", it is difficult to interpret the strategy's implications with respect to this project, particularly in a context where Beach Street already contains several 8 or 9 storey buildings.

It is clear that this urban strategy is, at this stage, only in the early stages of public discussion, with considerable debate to follow before any revised version might "be adopted by State and local government authorities and appropriately expressed in the State Planning Policy Framework and the Port Phillip planning Scheme".

Insofar as it is possible to interpret this strategy, the development proposal described in this application for review appears to be generally consistent with the strategy's various objectives and principles. However, in our view, this strategy provides us with no assistance in assessing the more detailed aspects of this proposal.

Council's grounds for refusal included "The development is an overdevelopment of the site by virtue of overshadowing of the Port Phillip foreshore and car parking". Contour Consultants acknowledged, in its original submission to Council in support of the application, that "the extent of overshading of the foreshore and Beach promenade is a major consideration with respect to any proposal for multi-level development on the subject land". There was much discussion during this review's hearings concerning the exact nature of the present shade-control policy and the process by which it has been developed, particularly having regard to nearby foreshore buildings which cause shading of the foreshore which appears to exceed current policy limits.

There has been a progressive development of policy relating to the extent of acceptable shading of the foreshore areas.

The earliest example provided to us is the Port Melbourne Foreshore Strategy (1995), which requires that "New buildings should not significantly overshadow the foreshore or beach promenade. Only minor overshadowing (up to 12pm on 21 June) may be allowed".

The later Port Phillip MSS includes statements dealing with the foreshore: "Port Phillip's nine kilometres of foreshore ..... is the City's most outstanding natural asset and is a valuable resource to the local community, to the wide rmetropolitan population and supports a variety of local flora and fauna. The Council must protect and enhance the foreshore by ensuring that new and on going activities and developments, either on or near to the foreshore, make a positive contribution to the sensitive coastal environment and offer a net community benefit". This is to be achieved, in part, by "minimising adverse amenity impacts on the local area." This strategy is to be implemented, in turn, by requiring that "New development which is adjacent to the foreshore should not overshadow any part of the foreshore reserve between 10.00 am and 4.00 PM on 22 June to ensure that all parts of the foreshore receive maximum sunlight all year".

Amendment C5 will apply the Design and Development Overlay 1 (DDO1-A1) to the site. This DDO includes a similar requirement with respect to the applicable time limits for protection of the foreshore from shading (10.00 AM to 4.00 PM on the 22nd June).

* the importance to be placed on these two policies which set out slightly different, time-based criteria for prevention of shading on the foreshore (and the question of which should be given precedence, given the difference between them)

* the definition of the foreshore or beach promenade

* the extent of any shading of the foreshore reserve in any case, and its significance

* whether there are any other extenuating circumstances or qualifications that would support the proposed development, notwithstanding any infringement of this `shading' strategy.

To the south of the site are the following: the Beach Street carriageway with adjoining footpaths to north and south; beyond the footpath a wide grassed nature strip with a second foot/bike path on its southern side; beyond that, a stone sea wall separating the nature strip and paths from the sand of the beach itself. The grassed area between the stone wall and Beach Road also contains a row of palms, a brick toilet block and public seating.

Council argued that, in the absence of a better definition, the foreshore reserve should be treated as all the area available for public recreation south of Beach Road itself, thus including the wider nature strip and the adjoining bike/pedestrian path in the foreshore area. Neither Mr. Morris, nor Mr. Biles, argued against this proposition.

Shadow diagrams provided by the applicant indicated that, between 10.00 AM and noon on the winter solstice, the shadow of the proposed building would fall beyond the southern edge of the road/footpath - at 10.00 AM this would extend well beyond the sea wall and, by noon, would extend only a little beyond the road's edge. From the single shading diagram provided for 10.00 AM, 30th July, we have inferred that at dates earlier than about the 5th May or later than 30th July, there will be little or no shading beyond the southern edge of Beach Street footpath after 10.00 AM.

Mr. Biles also pointed out that the two major developments to the east of the subject site, the Nautica and Marine apartments, overshadow the foreshore reserve to a somewhat similar extent to this proposed development (the Nautica Apartments would cast a slightly longer shadow, the Marine Apartments slightly less). The building immediately west of Stokes Street also casts a shadow that extends almost as far onto the foreshore, in parts, as will that of the proposed development.

We sought advice from Council as to the history behind the approval of the various buildings to the east and west of the subject site which infringed the no-shading-of-the foreshore policy. However, none of the information which was provided to us about the approvals process for the Nautica, Marine and The Anchorage apartments shed any light on the history behind approval of their respective heights, or the adoption of the 10.00 AM to 4.00 PM shadow-free criteria. The most useful explanation of the latter point was provided in Council's facsimile of the 23rd February 1999, as follows (sic):

"My investigations indicate that Council developed its view of an appropriate level of overshadowing as part of its preparation for the panel considering the HMAS Lonsdale development.

Following discussions ..... (with) ... the officers who briefed Councils representative at the panel hearing for HMAS Lonsdale, it appears the figure of 11 am (later changed to 10am after the panels report) was chose as a time when it was considered that people would begin to make use of the foreshore in any appreciable numbers.

The winter solstice was chosen on the basis that a resource such as the foreshore is likely to be used all year round and therefore should be free of shadow even in the winter months".

Various arguments were put forward by Mr. Morris, supported by statements of professional judgement by Mr. Biles, to justify the extent of shading as reasonable (our paraphrasing follows):

* the physical extent of shading beyond the edge of the Beach Street footpath would be relatively small and occur over only a limited period

* adoption of 10.00 AM as the commencement time for protecting the foreshore from shade is "a unique provision. As the Tribunal will be aware, most shadow tests are applied at the equinox and it is usual for the time of interest to be late morning to mid afternoon"; (Mr Biles pointed out that Melbourne City's provisions for control of shading of the Yarra River applies between 11.00 AM and 2.00 PM).

* the degree of inconvenience likely to be caused to the public would be minor, given that the infringement would occur mainly during late morning periods over a few midwinter weeks (as well any shading that might result from the proposed redevelopment of the Sandridge Hotel site, adjoining)

* there is a contradiction between the prevention-of-shading policy and the maximum permitted height of 24metres within 5 metres of Beach Road (Amendment C5, DDO1), in that this height would result in shading beyond Beach Street; this contradiction justifies a more lenient approach to the extent of shading in this case, given that those parts of the building that exceed 24 metres will be set back 11.0 metres or more from Beach Road.

* the shading infringement, seen in the context of the shading infringement that already results from the permitted buildings to the east (the Nautica and Marine Apartments) and west, together with the shading from other objects within the near foreshore area, is relatively insignificant.

This issue, as is often the case, relates to the problem of managing incremental change. That is, in implementing planning policies, any decision to stop further incremental changes beyond the current situation can appear unduly arbitrary, given that each step introduces only a small and seemingly inconsequential change from the preceding situation. By itself, of course, each decision may seem relatively inconsequential but, in combination, a series of small changes will eventually amount to something of considerable substance (sometimes referred to as the "tyranny of small decisions").

* a proposal for a quite small increase in the shading of the foreshore

* existing and nearby infringements of the foreshore non-shading policy

* two clear statements of current policy: the MSS (perhaps unduly prescriptive for an MSS) and the relevant provisions of Amendment C5, which provide a clearer context for implementing this objective.

Our assessment is that, notwithstanding the small degree of proposed change to foreshore shading and the adjacent context, the proposed building height is not acceptable.

Firstly, we do not accept that the apparent conflict between the proposed 24 metres height (Am C5) and the non-shading criteria has any relevance. It is not uncommon that different planning controls can create different outcomes with one or other control being critical with respect to different design situations. In such cases, it is the most stringent control that becomes the necessary test for any particular design element.

Secondly, we see the reasonable protection of the foreshore from shading as a critical issue. The Beach Street frontage is extremely important part of Port Melbourne's, and Melbourne's, waterfrontage and this is properly reflected in the MSS. The foreshore and adjoining areas are already the focus of major housing development, with expectations of considerable more housing to follow, with increased usage by local residents in addition to visitors to the area. We consider that this aspect must be given great weight, so that protection of the amenity of public areas should be treated with greater priority than might otherwise be the case.

Thirdly, while use of the hours 10.00 AM to 4.00 PM may be unique, that is not an argument against this criterion. The situation is also unique and, in the final event, any criterion of this kind must be relatively arbitrary and reflect the Responsible Authority's own assessment of what, in the circumstances, it considers appropriate.

Finally, there is no particular or significant public benefit created by the development which can be used to justify this excess shading. That is, the proposed development offers no community benefit which both compensates for the shading effect and/or depends on it for its existence. While this development would satisfy a number of planning objectives, we do not consider that satisfaction of planning objectives, which should be satisfied in any case, justify failure to meet an unrelated and critical planning criterion.

Council had expressed concern about the adequacy of the urban character of the Beach Street elevation and its relationship with the Nautica Apartments, to the east. The relationship that would exist between these two buildings would be complex, due in part to the complex shape of the Nautica Apartments, also to the rather strongly articulated details of the elevation which is proposed for the subject building, which will have a somewhat different architectural `language' and detailing. It is perhaps sufficient to say that the Nautica Apartments will be slightly lower than this building and, while both buildings will have somewhat similar setbacks from Beach Street, levels 3 - 5 of this building will stand proud of the equivalent levels of the Nautica Apartments. There will also be a vertical glazed translucent panel to the eastern side of the elevation, extending over several floors, carrying the title "Lido Apartments".

Council's guidelines place emphasis on the lower 3 levels of the buildings being built to the street alignment and reflecting the `hole-in-wall' window character of other buildings along Beach Street.

Council had expressed concerns that the original elevation would not create enough sense of enclosing masonry walls. Consequently, the design was amended to create visually stronger enclosing wall elements around the balconies and patios.

The major design issue relating to this proposal is the fact that, due to the narrow site frontage, any tall building will result in a narrow vertical segment of elevation, 8.2 metres wide and 31 metres high, being inserted into the general streetscape of its block (though from closer at hand, the more readily visible portion will be either 19 metres, or 24 metres, high depending on the distance of the viewing point; eg. from Station Pier, the whole elevation will be clearly visible, from the opposite side of Beach Street, only about 19 metres). Whatever the subtlety of the design, this vertical element will tend to intrude restlessly into the larger elevation components of the whole block unless great care is taken to provide some relationship with the adjoining building to the east (Nautica) or any future tall building to the west. We see no evidence that this has been attempted or achieved.

Our assessment of the southern elevation's detailing is that it primarily reflects its designer's desire to satisfy particular internal design requirements of the site with little reflection of the larger urban design context of the elevation. This view relates to the general balance of balcony and fenestration details, rather than the particular pattern of setbacks.

Although the changes to the elevation, which arose from a desire to respond to Council's concerns about the original Beach Street elevation, achieve some improvement, we see these as minor adjustments within the context of a generally unchanged and somewhat unsatisfactory design approach. However, this is not an issue which is reflected in Council's decision or submission to the Tribunal.

A number of objections were concerned about the likelihood that residents in the proposed building would overlook nearby dwellings, particularly the two storeyed terrace houses in Portview Square, to the north.

The architect of this proposed development has sought to prevent overlooking of any development on the adjoining site to the west (the Sandridge Hotel site). To control overlooking to the west, a translucent, full height, glass screen is to be provided along the western side of all balconies up to and including the 6th floor level. To ensure privacy of properties to the north, the developer relies on the use of opaque balcony balustrades to 1 metre height, the provision of balconies that are only 1 metre wide (not enough for sitting out on) and the fact that the northern facing rooms are all bedrooms.

From our inspection of Portview Square, we noted that the front gardens of the terrace houses to the east side of the street are quite small, often contain substantial landscaping and generally do not appear to be designed for, or suited to, outdoor leisure activities. Opportunities for overlooking private gardens to the west side of the Portview Square are similarly limited.

On the basis of the combination of these various elements, we do not consider that there will be any unreasonable degree of overlooking of private outdoor activities of residents in Portview Square from the upper levels of the proposed development.

No. 18 Stokes Street has been identified as a heritage building of local significance (HO265 to the schedule to the Heritage Overlay). The building's historic value is "as an early building demonstrating the significance of the foreshore area. Its proximity to the Sandridge Hotel (former Freemasons' Hotel) is of additional significance" (Ward, A., 1998_, "City of Port Phillip Heritage Review"_).

This building is a former Masonic Hall, built in 1858 and with a second storey added in 1874. The present building is now recognisable as an 1870s building, reflecting typical arrangements of architectural treatment and ornamentation of this era.

This building is adjacent to another individually listed building, `Longwell Terrarce', 20-24 Stokes Street (HO266) and is not far from another at 60 Stokes Street, corner Rouse Street (HO267). The site is opposite a registered building complex - the former Swallow & Ariell factory, corner Stokes and Rouse Street (HO246).

Various alterations have been made to the visible portions of the building: poor quality overpainting of the cement render; apparent removal of the parapet urns; recessing the front door to create a porch; damage to the external cement render mouldings. The proposed development of this site will include:

* extensive redevelopment of the building's interior to create three instead of two levels, with the third level protruding above the existing parapet line for the section of the building commencing about 4 metres from the street and abutting the ROW from a point about 10 metres back from the street

* construction of a parking garage on the ground floor, with two entry doors to the adjoining ROW

* widening of the building on its north side by 1.2 metres, commencing at a point about 10 metres back from Stokes Street.

The additional planning controls, as set out in the schedule to this overlay, provide only for control of external paint colours - no other additional controls will apply.

Mr Raworth gave evidence that the "significance of the building rests primarily with the external envelope. The interiors are not considered of a significance or integrity sufficient to warrant conservation, ....."

The principle issue to be considered in assessing the proposed alterations to 18 Stokes Street relates to the visibility of the external changes. These have now been arranged (as a result of modifications made to the original proposal) so that most of the external changes will either only be visible from almost directly opposite the building (with respect to the widening of the building on its north side) or from more distant points in Stokes Street (with respect to any visibility of the third, setback floor level).

The proposed changes strike a reasonable balance between retaining the historic integrity of the exterior of 18 Stokes Street, providing modern accommodation and revealing both the original external building elements and the points at which the historic fabric changes to modern materials. We consider that the proposal will retain a sufficient depth of side wall extending back from Stokes Street for the historic front section to be properly appreciated within its streetscape setting. With respect to the addition of the third level, which may be visible to a limited extent from some points in Stokes Street, we do not consider it to be so inappropriate or visible as to be unacceptable or in conflict with the remaining heritage aspects of this streetscape or locality.

Under the Port Phillip Planning Scheme, parking is required for dwellings at the rate of 2 car spaces/dwelling and 8 spaces for a shop of the size proposed. Council has the discretion to reduce or waive the parking requirement if it considers this is appropriate in the circumstances. The proposed development will include 15 car spaces on-site, with 3 being in tandem. Two spaces are to be provided in a separate, western garage and the remainder in the main eastern garage. Both garages are accessed from the ROW running past 18 Stokes Street.

The kerbside parking provision of about 126 spaces within 100 metres of the site includes the following:

* about 30 resident-permit spaces, together with a limited number of 1 hour and some uncontrolled spaces in Stokes Street.

We were informed by Mr Tucker that the existing building at 67 Beach Street relies entirely on street parking for its parking provision, but we were not told what its recent current parking demand was (we understand that the building has been vacant for some time).

Mr Tucker provided evidence from the 1996 ABS population survey which indicated the levels of car ownership for dwellings in buildings of different heights and of different numbers of bedrooms. From this, he argued that it would be reasonable to assume that there would be a demand of 0.76 car spaces per dwelling. He also calculated a "conservatively high" demand for 4 spaces for the shop, on the basis that the shop's custom would be largely local, walk-in business.

Mr Tucker also submitted to the Tribunal as evidence a one-page document (of unidentified origin but appearing to be based on analysis of ABS data relating to the proportion of the number of cars / household, persons / household and cars / person for 18 regions within the Metropolitan Statistical District (MSD). This evidence was used to demonstrate that, while the first two ratios varied widely across the MSD, the ratio of cars / person remained relatively constant, varying between a low of 0.57 (for a number of the inner/northern regions) and a high of 0.63 (for a group of the outer/southern, outer/eastern and inner/southern regions).

Mr Tucker had undertaken a parking demand survey on Saturday 14th November, 1998. The weather was described as "fine". Between 11.00 AM and 5.30 PM. This survey indicated a relatively constant demand for between 95 and 110 spaces over the survey day, with the peak of 112 spaces occupied at 3.30 PM.

With respect to parking provision for the shop, we consider that even regular shoppers would be unlikely to park in any on-site spaces that might be provided, particularly with the indirect and concealed access to parking areas that is proposed in this layout (and leaving aside any consideration of the further implications of the tight parking layout itself - see later comments). However, at peak periods, we consider that it is desirable to require on-site parking for at least 2 staff - we see no reason to assume that they would live in the area or would rely on public transport. The staff spaces could, however, be provided in tandem. This would leave 13 spaces for the occupants of 11 dwellings, of which 2 would be in tandem, giving two dwellings with 2 spaces each and 9 spaces for the other 9 dwellings.

We do not consider that the information submitted to us provides an adequate basis on which to calculate the likely parking demand for this building, or to argue that its parking provision should be reduced below the `optimum' requirement. The ABS figures quoted by Mr Tucker are the average parking demand/dwelling or the average cars/person-in-households for the municipality or a particular region. Mr Tucker did not even try to demonstrate in any way that the households that would occupy this development would conform to the various `average' households of the ABS analysis. The ABS figures provided to us give no indication of the range or variance in parking demand for the different categories of dwelling.

Given the heterogeneity of the inner-suburban population, dwellings of the same type/size as proposed in this development would generate a wide range of parking demand, depending on the socio-economic characteristics of the households as well as proximity to public transport and other factors. While we were given little information about the likely residents of this development, we would expect that new, beach front dwellings in a multi-storeyed tower would attract households in the upper extreme of the socio-economic profile of inner suburban residents with higher than normal levels of car ownership/usage. In this situation, we consider it appropriate to adopt a conservative approach to the likely level of car ownership and residents' parking demands.

While Mr Tucker was able to demonstrate that, at the time his survey was undertaken, there was a surplus of parking spaces within 100 metres, he did not demonstrate that this situation was representative of different periods of the week, month or year. We do understand that, at periods of peak beach usage, there will never be sufficient on-street parking spaces. However, given the encouragement that is being given by Council's MSS and other policies to increased residential development in this area, as well as other Council objectives to maintain acceptable standards of accessibility and parking provision, we do not consider that the applicant for review has demonstrated any case for reliance on off site parking for this project.

In addition, we do not accept that the car parking layout is reasonable. We consider that, overall, it relies too much on forgiveness of a number of inconvenient design features. We note the following difficulties in the parking provision:

* The six car spaces facing towards the rear wall of the shop (three car spaces across, each having a associated space in tandem) have a relatively narrow width of only 2.4 metres/car) and this also includes space for a public access way along one side of the area.

* The three west-facing parking spaces in the eastern garage area have an overall width scaling about 8.2 metres, while the four eastern-facing spaces have an overall width of about 10 metres. In both these cases, allowance has also to be made for 2 columns within the dimension, which will reduce manoeuvrability somewhat and space for opening car doors.

* The two spaces closest to Stokes Street require drivers to reverse awkwardly into the 3.05 metres wide ROW to exit the spaces.

* The doorway into the garage from the Stokes Street dwelling above the western car park is shown opening into the car space.

* It appears that it would be difficult to manoeuvre vehicles into/out of many of the car parking spaces in both garages. For some car spaces, the movements to exit appear to be extremely awkward, with complex movements required. While we accept that drivers familiar with a parking location will tolerate more confined dimensions and movements, this parking area appears to be excessively restricted in too any ways.

We conclude that the applicant has not justified the reduction in parking provision and that the proposed parking layout lacks reasonable flexibility in layout and dimensions to be acceptable.

In conclusion, we have determined that the proposed development is not acceptable with respect to:

- the extent of shadows cast onto the foreshore area, in contravention of Council's policy

The order of the Tribunal is that the decision of the Responsible Authority is upheld and no permit is to issue.