The order of the Tribunal is that the decision of the Responsible Authority is set aside. A permit is granted for shops and dwellings in a 10 storey building over 3 basement levels at 326-350 Lygon Street Brunswick generally in accordance with the endorsed plans and subject to the following conditions:-

1 Before the development commences, three copies of amended plans must be submitted to and when approved by the responsible authority become the endorsed plans and form part of this permit. These plans must be generally in accordance with the plans by Metaxas Architects (Drawings TP1.01 to TP1.10, TP2.01 to TP2.03 all Rev Dii) but amended to show:

(a) the buildings base or podium comprising 5 storeys rather than 6 storeys of the buildings 10 storeys;

(b) the designation of the tenacies marked as "retail" as "shop";

(c) Acoustic measures (if any) required to protect the internal amenity of the permitted dwellings in accordance with the recommendations of an expert acoustic report prepared to the satisfaction of the responsible authority;

(d) Measures (if any) required to ameliorate wind effects associated with the proposed building in accordance with the recommendations of an expert wind effects assessment report prepared to the satisfaction of the responsible authority;

(e) The glazing of the south façade of the "retail 2" premises adjacent to the car park accessway to improve sight distance at this location;

(f) The floor levels, wall and total buildings heights to Australian Height Datum (AHD);

(g) Environmentally Sustainable Design (ESD) measures in accordance with condition 6;

(h) Any other matters arising from the conditions of this permit which can be reasonably illustrated on the endorsed plans;

(i) The location of the basement car parks air exhaust vents away from the maternal and child health centre land;

(j) All exterior lighting colours materials and finishes, in particular including the lighting and paving of the land where publicly accessible and outside the curtilage of the building;

(k) The removal of all redundant vehicle crossings along the Lygon Street frontage;

(m) The design details of all plant, lift overrun and air conditioning equipment indicated on the roof plan and elevation plans;

All amendments must be made to the satisfaction of the responsible authority

2 The development as shown on the endorsed plan must not be altered unless with the written consent of the responsible authority.

3 If within 3 months of the date of this permit, the responsible authority notifies the owner of the land that it requires provision to be made within the development hereby permitted for the relocation of the electricity sub-station currently located on the maternal and child health centre land then the owner shall make such provision in a location and of an area which is to the satisfaction of the responsible authority.

4 Prior to the commencement of the development, a Car Park Management Plan must be submitted and be to the satisfaction of the responsible authority. The Plan must address the following matters:

(a) Access and security of the car parking areas, including after hours access for residents and visitors and management of restricted and unrestricted parking areas.

(b) Within the basement car park the allocation of 125 car parking spaces for occupiers of the apartments and 21 visitor spaces for the apartments.

(c) The allocation of 12 car parking spaces for the retail tenancies.

(d) The location and management of any vehicle access card reading, intercom and/or other security device required to operate the gate into each car park.

(f) Access for service and waste collection vehicles.

5 Prior to the commencement of the development, a Disability Access Plan must be submitted to and approved by the responsible authority. When submitted and approved to the satisfaction of the responsible authority the plan will be endorsed and form part of this permit.

6 Prior to the commencement of the development, an Environmentally Sustainable Development (ESD) Management Plan must be prepared by a suitably qualified environmental engineer or equivalent, outlining the design initiatives and construction methods to be incorporated into the development. This report must include, but not be limited to the following:

(b) Water Conservation and Re-use Plan, including stormwater retention and reuse;

(e) Schedule for monitoring of the ESD Management Plan;

(f) A demolition and construction Waste Management Plan.

When submitted and approved to the satisfaction of the responsible authority the plan will be endorsed and form part of this permit.

7 Prior to the commencement of the development, a comprehensive waste management plan must be submitted and approved by the Responsible Authority. When submitted and approved to the satisfaction of the responsible authority the plan will be endorsed and form part of this permit.

8 Prior to the commencement of the development, a construction management plan must be submitted and be to the satisfaction of the responsible authority. When approved the plan will be endorsed and will then form part of the permit. Three copies must be provided. The plan must address, but not be limited to, the following:

(b) Site contamination and disposal of contaminated matter.

(c) Containment of dust, dirt and mud within the site, and the method and frequency of clean up procedures in the event of build up of matter outside of the site.

(e) Measures to minimise the impact of construction vehicles arriving at and departing from the land.

(g) A liaison officer with a mobile telephone number for contact by residents and the responsible authority in the event of relevant queries or problems experienced.

(h) The storage and collection of waste and construction materials.

9 Prior to the commencement of the development allowed by this permit, or prior to any other date, event or construction phase approved by the responsible authority upon the request of the owner, the owner must provide:

(a) A Certificate of Environmental Audit in accordance with Section 53Y of the Environment Protection Act 1970; or

(b) A Statement of Environmental Audit and/or Section 53Z of the Environment Protection Act 1970. A Statement must state that the site is suitable for the use and development allowed by this permit.

10 All conditions contained within the statement of environmental audit must be complied with to the satisfaction of the Responsible Authority. Written confirmation must be provided by a suitably qualified environmental professional or other suitable person acceptable to the Responsible Authority.

11 Where there are conditions on a statement of environmental audit that require ongoing maintenance and/or monitoring requirements, the owner must enter into a Section 173 agreement under the Planning and Environment Act 1987. The Agreement must be executed on title prior to the commencement of the development or prior to any other date, event or construction phase approved by the responsible authority upon the request of the owner. The owner is responsible for all costs associated with drafting and execution of the Agreement, including those incurred by the Responsible Authority.

12 The area set aside for the parking of vehicles and access lanes shown on the endorsed plan must be constructed and marked out prior to the occupation of the development to the satisfaction of the responsible authority. Thereafter the car spaces must be maintained and not used for any purpose other than the parking of vehicles unless with the written consent of the responsible authority.

13 Any plumbing pipe, ducting and plant equipment must be concealed from external views to the satisfaction of the responsible authority. This does not include external guttering or associated rain water down pipes.

14 Prior to the commencement of the development, a detailed stormwater drainage plan must be submitted to and approved by the responsible authority.

15 All telecommunications and power connections (where by means of a cable) to the land must be underground to the satisfaction of the responsible authority.

16 No goods, storage containers, pallets or materials are to be stored on car parks, accessways or roadways.

17 Any external light on the land must be provided with a suitable baffle so that direct light is not emitted outside the land to the satisfaction of the responsible authority.

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

a) the development is not commenced within two (2) years from the date of issue of this permit;

b) the development is not completed within four (4) years fiom the date of issue of this permit.

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

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.

Mr Chris Canavan QC with Mr Paul Connor, Barrister. Mr Canavan and Mr Connor called Mr Stephen Hunt, Traffic Engineer,

Mr Craig Czarny, Urban Designer, as witnesses in support of his submissions.

1 Metaxas Architects propose a ten storey building for Lygon Street East Brunswick near Victoria Street and Fleming Park. The architecture is contemporary and the building highly articulated. There are to be 2 shops at ground level, 103 inner city apartments in 9 storeys above and basement car parking. This building supersedes an earlier proposal for a 16 storey building.

2 The council and neighbours, whilst acknowledging new five storey buildings nearby, object to the bulk, height and amenity impacts of ten storeys. Council believes that taller buildings should not be considered until a structure plan for the area is prepared.

3 The land is in an urban village on an arterial road and tram route leading to Melbourne's city centre. The land is in a business 1 zone, backed by land in a business 3 zone, which forms a buffer to nearby residential land. It is in a pocket where can be developed with very limited impact on others. Urban villages are areas slated for change, provided development is of appropriate quality and style and enhances the function of the area.

4 We have found the this to be the case. The mix of shops and dwellings and the intensive development of the land is strongly supported by the planning scheme. There will be amenity effects, in particular the overshadowing of the maternal and child health centre, but these effects are not unreasonable given the planning policy framework. The existing planning scheme and Melbourne 2030 enable a timely decision to permit a building of this height even though a structure plan is yet to be prepared.

5 Mr Metaxas has designed a very attractive and carefully considered building. From a streetscape perspective it is considered that the base or podium of the building should be reduced in height by 1 storey but that the overall height is acceptable. The upper storeys are recessive and do not unduly affect the streetscape. We propose to grant a permit subject to this change for the reasons which are set out in this decision.

6 At the commencement of the hearing Mr Canavan applied to amend the permit application by the substitution of amending plans as foreshadowed in notice given in accordance with the Tribunal's practice requirements. The most notable change shown on the amending plans is the proposal to reduce the overall height of the building, above basement levels from sixteen storeys to ten storeys. No party opposed the amendment of the permit application in this way, and the Tribunal ordered the amendment of the permit application in accordance with Mr Canavan's request.

7 The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality on a number of occasions.

8 The subject land, and all the land fronting Lygon Street for a considerable distance to the north and south of the subject land, falls within a Business 1 zone. The southern most of the three lots which constitute the subject land, is affected by a Design and Development Overlay (DDO1 - Heritage Protection) because of the lands abuttal to the maternal and child health centre a heritage place.

9 Shop is a permitted use in the zone, a permit is required for the use of the land for dwellings, because the frontage for dwellings at ground floor level exceeds 2 metres. A permit is required to construct a building or construct and carry out works under both the zone and overlay provisions. The zone provisions in this regard include exemptions in relation to notice and review.

10 Amendment C43 to the Moreland Planning Scheme proposes to introduce two new local planning policies, clause 22.10 Neighbourhood Character and Clause 22.11 Buildings Over Three Storey. The panel considering submissions in respect of this amendment has recently released its report and recommended adoption of the amendment subject to 43 detailed recommendations. These provisions and associated documents are referred to during the course of these reasons.

11 The subject land is a regular lot contained within three titles and located on the east side of Lygon Street approximately 18 metres south of Victoria Street in Brunswick. The intersection of Victoria Street with Lygon Street is controlled by traffic signals. The subject site is also located approximately 130 metres north of the intersection of Albert Street with Lygon Street. There are pedestrian signals a short distance north of Albert Street in Lygon Street. A bluestone paved right of way extends across the rear boundary of the site, running from Victoria Street south to Albert Street.

12 Under the planning scheme provisions an area centred on the intersection of Albert Street with Lygon Street is designated as the Lygon Street/Albert Street urban village.

13 The subject land contains three industrial buildings occupying almost 100 percent of their sites areas. The buildings were developed at various stages during the 20th century. The northern most building is a two storey building while the other buildings are single storey. The buildings are predominantly used for warehousing and peripheral retailing. To the immediate south of the subject land is the Brunswick Maternal and Child Health Centre, a modest single storey purpose built art deco brick building which is of considerable heritage significance, both architecturally and culturally.

14 The character of Lygon Street in this part of Brunswick is highly eclectic, with buildings fronting the street, which are predominantly commercial buildings dating from the late 19th century through to the end of the 20th century. Within the broader area, in Lygon Street, there has been some considerable redevelopment with a number of four and five storey buildings being constructed or recently permitted. These newer buildings are, with some exceptions, designed to be used for commercial purposes at ground level, and for dwellings above. In an economic sense, low order commercial/retail uses predominate along Lygon Street in this locality.

15 The neighbourhood character guidelines[1], which form part of amendment C43 of the Moreland Planning Scheme, set out a summary of the existing character for Precinct 76 which includes the subject land

The area is mainly zoned business uses but includes many small workshops and clothing factories/sales outlets. Its character is also moulded by Lygon Street' arterial status as it carries heavy traffic. The street's commercial nature also involves significant on-street parking and signage.

Setback varies along Lygon Street with some flats, service stations and workshops/factories set back. The area has an almost equal mix of Victorian, Inter-war and post-war buildings. However, the style of building is often difficult to read due to poor maintenance, renovation or conflicting signage.[2]

16 Land to the rear of the subject land across the adjoining right of way is occupied by industrial buildings fronting onto Gale Street and Victoria Street. Some Victoria Street properties and the Gale Street properties fall within a Business 3 zone, and are predominantly industrial in character, although there remains some of the original dwellings, among the industrial buildings, the closest being dwellings fronting onto Victoria Street at the south eastern corner of Gale Street. The closest residential uses within a residential zone are located on the north side of Victoria Street approximately 34 metres north east of the subject land.

17 Lygon Street for much of its length through Brunswick is affected by a Business 1 zone. An important characteristic of this part of Lygon Street extending from Victoria Street to approximately 100 metres south of Albert Street is that the land behind the Lygon Street properties both to the east and west is affected by either a Business 3 zone, or an Industrial 1 zone, with the exception of a small area of residentially zoned land on the north side of Albert Street to the east of Lygon Street. This characteristic is undoubtedly related in part to the selection of this area as an urban village, and is important to this application for review, because of its implications for the direct amenity affects of the proposed building on dwellings within a residential zone.

18 The proposal is for a ten storey building over basement car parking. The various components of the building can be described as follows:

19 There are three basement levels in which a total of 158 car spaces are provided. The layout of the basements is very straightforward, and there are no tandem car spaces. Vehicular access to the basements is via a ramp connecting to Lygon Street in the south western corner of the subject land. The central lift/stairway core extends to all levels of the basement, and bicycle parking is provided adjacent to this lift core at all basement levels.

20 The podium of the proposed building comprises of six storeys. The ground floor contains two retail tenancies, the entry lobby to the proposed apartments above, a loading facility access from the rear right of way and various services and facilities. Levels 1 to 5 each contain 14 apartments. The east facing apartments are separated from the west facing apartments by a common central open lobby space which extends through the building from levels 1 to 8. The east and west facing apartments are provided with east and west facing balconies respectively. The building façade at ground floor level is setback approximately 1.7 metres from the frontage of the site. The balcony balustrades are solid structures (formed concrete with a crumpled finish) and are designed in a visual sense to define the front façade of the podium. The balustrade setbacks from the frontage of the site vary, but over a distance of 37 metres, the balcony balustrades are located close to the frontage with an average setback of 0.7 metres. In this same area, the façade at levels 1 to 5 is setback approximately 4 metres. The eastern balustrades are built onto the rear boundary of the site, while the eastern façade is setback approximately 2.2 metres.

21 The proposed design has three middle storeys, levels 6 to 8. The footprint of these levels is considerably smaller than the levels below, and each level contains ten apartments. As for the podium levels, the east and west facing apartments are separated by the common open lobby space. Again the balcony balustrades are solid, visually prominent building elements and they are setback an average of approximately 6.8 metres from the frontage. The west façade of the building at these levels is setback between approximately 8 and 10 metres from the frontage of the site. The eastern balustrades are built onto the rear boundary of the site, while the eastern façade is setback approximately 2.2 metres. Setbacks from the north and south boundaries of the subject land are also increased at the middle levels

22 The top storey, level 9, has a smaller footprint than the levels below and contains three dwellings. The balcony balustrades at this level are glazed, and therefore do not possess much visual weight.

23 The western balustrade and façade have minimum setbacks from the frontage of the site of 8.22 metres and 10.88 metres respectively. The eastern façade is setback a minimum of approximately 3.3 metres. The roof form has been designed to add to the architectural expression of the building.

24 Mr Metaxas provided a number of perspective views of the proposed building, one of which is reproduced below, to help illustrate the complexity of the design and its articulation.

25 In an overall sense the proposed building is highly articulated, indeed the building form is so complex it is difficult to describe in words. Having considered Mr Metaxas' evidence, we are satisfied that the architecture of the proposal is of a very high standard, and that the building is, as an example of its type, a very attractive building. Moreover, we were impressed by the innovation and practicality of many of Mr Metaxas' design features, examples of which are:

* The common central open lobby space that extends through the building above ground floor level, it is open at its ends, creating a sense for residents of moving from the outside to the inside when entering their apartments, facilitating natural ventilation, and enabling an expanded suite of options for the "interior" design of this space, and;

* the enclosure provided on each balcony, which is available to house and screen air-conditioning condenser units, while at the same time providing some storage space for a barbeque, or for outdoor furniture etcetera.

26 The Responsible Authority issued a Notice of Refusal to Grant a Permit for the following reasons:

1. The proposed building displays excessive building height and building bulk that is completely out of context with surrounding development.

2. There is no strategic justification or urban design basis for a building of this size or scale on this site.

3. The proposed development fundamentally fails to satisfy core SPPF and LPPF objectives in respect to urban design, neighbourhood character and heritage.

4. The development fails to meet the objectives for urban design as contained within Clause 19.03 of the Moreland Planning Scheme.

5. The development fails to meet the objectives for development within Urban Villages as contained within Clause 22.02 of the Moreland Planning Scheme.

6. The development fails to meet the objectives for development within the Lygon Street Precinct as contained within Clause 22.04 of the Moreland Planning Scheme.

7. The development fails to meet the objectives for development adjacent to heritage places as contained within Clause 22.04 of the Moreland Planning Scheme.

8. The development is not consistent with the City of Moreland's strategic vision for retail and residential development and in particular is not justified against the State and Local Planning Policy Frameworks including the Municipal Strategic Statement.

27 Having inspected the subject land and considered the submissions and evidence, we are of the opinion that significant issues in this application are:

* The suitability of the land for intensive redevelopment having regard to planning scheme policies and Melbourne 2030;

* The heritage issue, that is the impact of a proposed development on the significance of the Maternal and Child Health Centre a heritage place;

* Amenity impacts including overshadowing, car parking, traffic (including pedestrian safety) and waste management;

* The building height in the absence of a structure plan and from an urban design perspective.

Suitability of the land for intensive redevelopment

28 Mr Milner in his statement of evidence was able to conclude in part

The concept of a mixed use development with residential at the upper level, and a greater intensity and density than existing, is supported by policy at state, metropolitan and local levels.

29 This conclusion was based upon a consideration of the State Planning Policy Framework, in particular clauses 14.01 and 14.02, the Local Planning Policy Framework and Melbourne 2030.

30 Mr Canavan in particular referred to Clause 21.02 the Regional Context. This clause sets out the locational advantages of Moreland, in a metropolitan context, and Mr Canavan argued that these characteristics added weight to the more general planning considerations which supported the proposed development.

Moreland covers a significant part of the northern region of Melbourne. Map 1 shows Moreland in its regional context. The main advantages of its location include:

* proximity to business, entertainment and educational facilities of Melbourne's Central Business District (CBD);

* major transport links - including the Western Ring Road and City Link project to the ports, airport and industrial areas;

* business, production and communication hubs at the CBD, airports and the Hume and Laverton North industrial areas;

* proximity to large mixed-use activity centres at Broadmeadows and Moonee Ponds, and to Airport West, Highpoint and Northland shopping centres; relatively cheap land;

* a manufacturing base that can be restructured to become a centre of design excellence for the Asia Pacific Region; and

31 It struck us that we looked directly at the Melbourne CBD from the land down the Lygon Street artery, in our mind direct evidence of this regional context.

32 There is explicit support for more intensive mixed use development on transport routes and in urban villages to be found within the local policy framework. An example of this is the key strategic statement in respect of housing which is found at clause 21.06-1 Housing[3].

Housing form and type have major impacts on liveability and efforts to achieve environmentally sustainable development.

There are compelling strategic reasons to support urban consolidation and to provide new housing developments in existing areas. ...

It is also important to ensure that the stresses caused by increases in density are minimised by good design and improvements to urban character.

A declining population may mean a declining economy. New housing is needed to maintain the present population and provision of local services. This means constructing new dwellings. New `infill' housing needs to enhance rather than fragment the preferred urban character of the surrounding area. ...

Adequate, appropriate and affordable housing are basic factors affecting quality of life. ...

Housing affordability is not only a direct outcome of housing rent or purchase price, it also includes costs associated with transport to work, shops and services. ...

Building a variety of housing types will foster a more diverse community, with subsequent benefits flowing from that social diversity. Large development sites and smaller infill sites create opportunities to meet some of the housing needs of the region.

To manage the location and design of increased density development to achieve environmental sustainability.

Support increased residential density developments that include features which increase environmental sustainability, ...

Support increased housing intensity that exceeds the density benchmarks identified in the table in Diagram 2, if it is located within walking distance (approximately 400m) of tram or train services or within urban villages, provides clear social benefits and displays design excellence.

In accordance with Clause 55, encourage medium density housing across the municipality which achieves good amenity for occupants and neighbours and contributes to preferred urban character.

Recognise the opportunity for higher density development and innovative design on large sites that will benefit from establishing their own unique character with minimal impact on surrounding area.

To encourage the development of well planned urban villages.

Support increased housing intensity that exceeds the density benchmarks identified in the table in Diagram 2, if it is located within walking distance (approximately 400m) of tram or train services or within urban villages, provides clear social benefits and displays design excellence.

33 In a recent report prepared by the Responsible Authority, entitled Moreland Urban Villages Review, February 2004, urban villages are defined in the following terms:

A suburban centre with either a 400 or 800-metre radius, having a range of community facilities and activities, a mix of housing and substantial local employment, and linked to other suburban centres by public transport. It has safe, attractive and well-defined public realm of interconnected streets fronted by buildings, and well-used public open space.[4]

34 In the local planning policy framework clause 21.05 sets out Moreland's vision, here it is said the urban villages proposed in the Moreland City Plan aim to embody this vision. Clause 21.05-2 defines the focus areas for change within the municipality, and the first of these are the urban villages.

Council's vision to create an environmentally sustainable and livable city, where people can shop, work and socialise locally is captured in the Urban Village concept. ...

A central concern of this implementation plan is to control development within urban villages so that the appropriate quality and style of development is achieved and the urban village concept is not simply abused as a way of cramming inappropriate development into streets that currently function well.

35 The urban villages policy is established in the Moreland Planning Scheme, as a means of providing a strategic direction for redevelopment within Moreland. The Urban Villages Review referred to above, was in a sense seeking to reconcile the urban villages policy with Melbourne 2030 and its emphasis on more intensive development around activity centres.

36 The review document reviews, analyses and makes recommendations in respect of the Lygon Street/Albert Street urban village. An extract of the commentary is set out in part below:

The lack of local convenience retailing would mean that this UV would not be classified as a NAC. In the original UV assessment this centre achieved a higher weighting because its street network, develop opportunities and access to open space. Given the opportunities for redevelopment of some industrial areas with the centre, the extent of the B1Z and access to the PTTN the use has a greater potential to become a viable NAC in the medium to long term.[5]

37 To some extent the fact that the review concluded that the Lygon Street/Albert Street urban village could not regarded as a Neighbourhood Activity Centre at present, for the purposes of Melbourne 2030, was a factor which for the responsible authority weighed against the intensity of development proposed in this case. We do not consider that this is the correct approach, because:

* The Lygon Street/Albert Street urban village, scored highly on the basis of the assessment criteria established for the selection of urban villages;[6]

* The selection criteria for urban villages are not dissimilar to those inherent in Melbourne 2030 other than for the emphasis in Melbourne 2030 on retail function;

* The hierarchy of activity centres implicit in Melbourne 2030, is not easily applicable to the linear retail and industrial strips found on the roads such as Sydney Road, Lygon Street and High Street Northcote. In the case of Lygon Street the proposed urban villages imply some structure or form to the redevelopment of this linear strip.[7]

38 However, the most important reason for the continued relevance of urban villages to this project is that urban villages remain at the centre of the Local Planning Policy Framework within the Moreland Planning Scheme.

Melbourne 2030 And Its Relationship To Local Policies

39 The evidence before the Tribunal in relation to the State Planning Policy Framework, and the discussion of the Local Planning Policy Framework set out above, demonstrates conclusively that Melbourne 2030 is not a radical new plan. Rather it restates and reinforces the fundamental themes which have been important to metropolitan planning for a very long time. The Moreland MSS is an exemplar of how this metropolitan approach to planning is implemented at a local level.

40 An important difference between Melbourne 2030 and earlier strategic documents is its reanalysis of population growth and housing demand, and the targets it sets for the achievement of a satisfactory outcome in the light of these anticipated demands. We think the effect of Melbourne 2030, when overlaid with the essentially similar policy framework within the planning scheme, is to emphasise the importance of optimising development opportunities where that can be achieved without unreasonably comprising other important planning objectives relating to issues such as heritage, neighbourhood character, or the established amenity of localities.[8]

41 It is our conclusion that having regard to Melbourne 2030, the State Planning Policy Framework, but more particularly having regard to the Local Planning Policy Framework, the more intensive redevelopment of the subject land for a mixed use purpose is strongly supported.

42 As stated above the southern most of the three lots which constitute the subject land, is affected by a Design and Development Overlay (DDO1 - Heritage Protection). The design objectives of Schedule 1 to the overlay are:

* To protect and enhance the environment of heritage places.

* To ensure that the character and appearance of heritage places is not adversely affected by the design of new buildings on adjoining land.

* To ensure that building heights, building bulk and setbacks on the sites adjoining heritage places are compatible with and enhance the character and appearance of the heritage places.

43 This overlay applies to land adjoining heritage places throughout the City of Moreland. The purpose of the overlay is to enable consideration to be given to the impact of a proposed development on the significance of that heritage place. It was accepted that the Maternal and Child Health Centre has heritage significance. As the health centre is a modest single storey building, there is an enormous disparity in scale between the proposed building and the health centre. Nevertheless, the design has sought to respond to the health centre to some degree, with the building being setback from Lygon Street at the south western corner of the subject land to open up views to the health centre from the north in Lygon Street. Moreover, the setting back and articulation of this aspect of the building increases through the upper levels of the building.

44 We agree with the conclusions of Mr Read in application for review P1516/2003 Carlos Constructions Pty Ltd v Moreland City Council, a decision in relation to the property to the south of the Maternal and Child Health Centre. The health centre is a modest, almost domestic building set in its own garden. In a streetscape sense the health centre contrasts sharply with the existing streetscape, and even more so with any reasonably anticipatable future streetscape based upon policies in the Moreland Planning Scheme. This is a dichotomy which, as Mr Read observed, has existed since the building was first constructed in 1939.[9] The subject land is a substantial development site, located centrally within an urban village. Whether or not the site is developed as a five storey building, or as a ten storey building, the sharp variation in streetscape character resulting from the existence of the health centre will inevitably occur. Considering the planning scheme as a whole, it would be inappropriate to significantly compromise the potential for the redevelopment of the subject land, to achieve a greater transition between the health centre and development on adjoining sites.

45 The significant off site amenity impacts argued during the course of the hearing related to overshadowing, car parking, traffic and waste management.

46 In relation to overshadowing there are two issues of concern. The first is overshadowing of the maternal and child health centre, and the second is the overshadowing of the Lygon Street footpaths.

47 To the east and north of the health centre building there is a secure area of open space which contains some play equipment, a sand pit and a small grassed area. The south wall of the existing single storey industrial building to the north abuts the northern boundary of this open space. At present the overshadowing of this open space, at least during the midday period is limited to the shadows cast by this wall which is between 3 and 4 metres in height. Consequentially this open space area is relatively sunny, and sunlight penetrates the windows of the health centre.

48 In addition to the normal consultations between the maternal health care nurses and their clients, the health centre is used during the week by numerous playgroups which operate under the auspices of the health centre. The playgroups utilise a large room within the health centre, and the open space area discussed above.

49 The issue is the overshadowing of the open space, and the health centre itself and the impact of that overshadowing on the uses, in particular the playgroups.

50 The proposed ten storey building will undoubtedly extensively overshadow the health centre and its open space. During the course of the hearing Mr Canavan tabled a shadow diagram for a five storey building on the subject land, and this diagram demonstrates that a five storey building on the subject land will also substantially overshadow the health centre and its open space. Indeed any building taller than the existing single storey building to the north of the health centre site will add substantially to the existing overshadowing. If one has regard to the overshadowing effects of various forms of development on the subject site, and the character of development preferred in this locality on sites such as the subject land having regard to the Planning Policy Framework, then we are of the opinion that while the effect of overshadowing on the health centre is significant, it is not unreasonable in the context of this locality.

51 Moreover, while the overshadowing effect is substantial, for much of the year there would continue to be morning and afternoon sunlight affecting parts of the health centre land. The health centre and the land will continue to enjoy excellent access to daylight even when overshadowed and it is probable that there will be views to sunlit gardens, walls and roofs from within the health centre land. The overshadowing is not in any fundamental way an obstacle to the continued use of the health centre by playgroups.

52 An interesting submission made on this topic, was the re-emergence of rickets as a health problem within the community. Sufficient exposure to sunlight is an important aspect of health, and is particularly important in the prevention of rickets. However, a child attending a playgroup at the health centre will in most circumstances only be at the site for two to three hours per week, and some of that time at least will be indoors. We think it improbable that a child's attendance at the health centre could reasonably be regarded as an important or essential opportunity for that child to gain exposure to sunlight. Additionally it is common practice nowadays for children to wear hats and sunscreen when playing out of doors, particularly in circumstances were public liability is an issue.

53 The issue here is the overshadowing of the Lygon Street footpath. The design guidelines for buildings over three storeys which are associated with the amendment include objectives and design standards in respect of overshadowing at clause 2.1. The relevant objective and design standard are

To ensure new buildings allow good sun penetration to public spaces.

Development should not reduce the amenity of public spaces by casting any additional shadows, between 11 am and 2 pm on 22 September, on public parks and gardens, public squares, major pedestrian routes including streets and lanes and privately owned plazas accessible to the public.

54 This is a very onerous standard, and would, if applied literally, prevent the development of taller buildings near streets such as Lygon Street. However, this is a topic upon which the panel made a recommendation, that the design standards be amended to allow scope for additional shadow for taller buildings with a connection to such a street.

55 The proposed building will undoubtedly overshadow the east and west footpaths of Lygon Street at various times during the day. However, Lygon Street is a north south street and the public realm within the street will enjoy good solar access for substantial periods of the day, the actual period of sunlight penetration varying depending on whether or not you are on the eastern or western side of the street. We do not think that the overshadowing impact of the proposed building, on the public realm, is unacceptable.

56 There are 156 car spaces provided on site within the three level basement. On the basis of Mr Hunt's assessment this car parking supply exceeds demand in all of the empirical scenarios that he developed in his report. An assessment based on the table to clause 52.06 results in a car parking requirement in excess of the proposed provision, but it was not seriously argued that this was a reasonable assessment of the likely car parking demand.

57 Mr Hunt estimated that peak customer parking demand for the retail component of the proposed development will be 22 car spaces, and on the basis of his surveys he argued that these spaces could be comfortably accommodated on street in the immediate vicinity of the site. While during the business day, some additional car parking is likely to be available within the basement car park, it was conceded that these spaces are unlikely to be used by casual visitors to the retail premises.

58 We accept Mr Hunt's assessment that the customer car parking can adequately be accommodated on street. It must be acknowledged that the existing businesses on the subject land currently generate car parking demand, and that the 22 car spaces estimated by Mr Hunt to be the likely future demand, will not therefore be entirely new car parking demand. Moreover, it must be recognised that the subject land is within an urban village, the use of buildings for commercial purposes, particularly at ground floor level is encouraged, and that therefore any proposal for the redevelopment of the site will result in some demand for on street car parking as a consequence of the generation of commercial customers.

59 However, we note that the car parking assessment is based on the likely future use of the premises described as retail premises on the plans for the purpose of a shop. We think that any permission should expressly refer to the use of these premises as shops, because under the planning scheme retail premises is very broadly defined, and can include other uses with higher car parking generation characteristics. This should not be taken as indicating that we think such uses would be inappropriate, rather we think that it proper that the question of whether or not car parking should be waived in respect of higher demand uses be considered at the time such as a use is proposed.

60 There are three significant, and related traffic issues in this application. They are:

* The adequacy of the proposed car park access arrangements from a traffic engineering perspective;

* Whether or not it is preferable that car park access be provided off the rear right of way;

* Whether or not the proximity of the proposed car park accessway to the maternal and child health centre raises unacceptable safety concerns.

61 The only traffic engineering assessment before the Tribunal in relation to the performance of the proposed car park accessway which in effect creates a new minor intersection with Lygon Street was that undertaken by Mr Hunt. A number of objectors expressed concern about the likely performance of the intersection of the accessway with Lygon Street, referring to the difficulties experienced at other nearby uncontrolled intersections, such as Albert Street, or at Anne Street.

62 At some times, congestion in Lygon Street, will cause some delay to persons seeking to enter or leave the site, but we accept Mr Hunt's assessment that the presence of traffic signals at Victoria Street (and to a lesser extent at Albert Street) )will serve to break the flow of traffic and provide regular opportunities for vehicles to enter or leave the traffic stream.

63 As a matter of general principle it is preferable that the accessways to basement car parks in developments such as this be located on rights of way, or onto minor side streets. The reason for this is not so much a traffic reason, but an orderly planning reason. Car park entries tend to be visually unattractive, they can create gaps in what should be active street frontages, and vehicles entering and leaving the site can disrupt pedestrian movement in busy shopping streets.

64 The subject land is essentially a mid block site, so it is not possible in the context of this application to widen the rear laneway through to one of the intersecting streets, either Victoria Street or Albert Street. In this context, we tend to agree with the objector's submissions that the right of way is unlikely to be a desirable means of accessing the site, having regard to the overall size of the car park, even if a theoretical assessment of the capacity of the laneway and its intersections proved to be satisfactory.

65 The proposed car park entry is located adjacent to the health centre with its own vehicular crossover which is already an established break within the streetscape. The car park entry is set well back from the frontage of the site and is therefore less visually prominent. We accept Mr Hunt's assessment that the accessway will function well from a traffic engineering perspective.

66 Any intersection represents an additional risk to the safety of pedestrians. However the "intersection" created by the proposed accessway, involves low vehicle speeds and good site distances. The setback of the proposed shop fronts, the setback to the car park entry, and the open character of the frontage of the health centre, has the effect that both motorists and pedestrian are afforded the opportunity of being aware of each other. This high level of visibility will be enhanced if the southern façade of the "retail 2" tenancy is glazed adjacent to the accessway.

67 We do not think that the immediate proximity of the proposed accessway to the health centre site substantially increases the risk associated with the proposed accessway. Even if the accessway was relocated to the north western corner of the site, there would remain parents and children who would have to cross the accessway travelling to and from the health centre, and the site distances associated with such an entry would be diminished. Some form of fence or barrier would be desirable between the accessway and the health centre land, in case parents having entered onto the health centre land relax the vigilance which would be natural when walking with very young children along busy Lygon Street. A barrier preventing a child running onto the accessway may be desirable.

68 A variety of submissions were made to the Tribunal in respect to the question of solid waste disposal from within the proposed building. It was alleged that the provisions made on ground floor level for storage of waste is inadequate and concern was expressed about the use of the right of way for the removal of waste. In our experience of apartment style development, the provision made for the disposal and storage of waste from within the building, and its ultimate removal from the building, has been quite carefully considered. It is commonplace for buildings of this type to employ private contractors for the removal of waste. Without accepting the basis used by objectors for the estimation of the volume of wastes which should be capable of being stored within the building, we observe that even if it is true that the storage facilities provided are inadequate for the waste generated within a week, the solution is to move to twice weekly collections, rather than to double the storage space available. A condition of permit will require the waste management system to be satisfactory to the Responsible Authority.

69 It is our conclusion that the intensive redevelopment of the subject land will result in some off site amenity impacts. The most important of these impacts is the overshadowing of the maternal and child health centre, but even a five storey build would substantially overshadow the centre. These amenity affects do not go beyond what could be reasonably expected, having regard to the policies found within the Moreland Planning Scheme.

70 In many respects the major issue in contention in this application for review is the height of the proposed building. Mr Milner in his conclusions observed:

The matter of contention is the height and form of the proposed building which will be notably higher and distinctly a "tower" form, in a area where low-medium rise terraces have been the prevailing form of development. More intense residential redevelopments in the locality, consistent with policy, have respected the prevailing character, being predominantly terrace forms and approximately half the height of the proposal.

71 Within the existing planning scheme, the local planning policies on urban villages and the Lygon Street precincts, have policies which give some guidance to the assessment of a preferred neighbourhood character, and of the appropriate form and height of buildings.

22.02 DEVELOPMENT WITHIN DESIGNATED URBAN VILLAGES

This policy applies to areas designated as urban villages in the Strategic Framework Plan in the Municipal Strategic Statement.

* The use and development of land is consistent with any approved Urban Village Structure Plan.

* New development constitutes contemporary architecture that respects the scale and form of surrounding buildings.

* Higher densities will be considered in accordance with Diagram 1 - Deciding on Increased Density in the Municipal Strategic Statement.

* The design and layout of buildings face and reinforce the public realm.

This policy applies to land in the vicinity of Lygon Street, East Brunswick.

* Applications for use and development have regard to the Lygon Street, East Brunswick Concept Plan.

* Buildings reflect the scale and form of adjacent buildings with height differences generally not exceeding one storey.

* Buildings above 3 storeys may be considered on large development sites where taller buildings are set well back from street frontages.

* New developments (up to 3 storeys) are constructed to the street frontage to reinforce the existing predominant setback of Lygon Street.

* Within retail nodes, continuous retail facades are preferred, even where a premise is being used for non-retail use.

72 The neighbourhood character guidelines, which form part of amendment C43 of the Moreland Planning Scheme already referred to, sets out a preferred character statement, and performance measures in respect of a variety of character elements including building height.[10]

The preferred future character of Commercial Character Areas is for a mix of uses at higher densities and an increased scale to Residential Character Areas. Mixed use developments will become a common element in these areas with the residential component providing a broad range of housing types, with particular emphasis on providing smaller dwellings. An increasing number of new buildings will be two or more storeys, with active ground floor frontages, often of a commercial nature. Built form will become a more prominent element in the streetscape.

New development is encouraged to be of an increased density, scale and form, including increases in site coverage and height (subject to meeting relevant amenity standards). The pattern of front setbacks will be retained but where side and rear setbacks exist they will be reduced to allow an increase in density of new development.

* Building heights must be consistent with the Preferred Future Character statement described above and any relevant structure plan.

* If a structure plan has not been prepared, graduation in the order of up to 2 storeys difference to adjoining buildings is acceptable, subject to meeting relevant overlooking and overshadowing standards (in clauses 54, 55, 56 or the Design Guidelines for Buildings over 3 storeys).

73 The existing planning scheme in effect provides that on Lygon Street buildings should be constructed to the street frontage with a podium height of three storeys, and that buildings above three storeys may be possible on large development sites where taller buildings are set back from street frontages. The proposed neighbourhood character guidelines, only supports graduations in height of two storeys from adjoining buildings, in the absence of a structure plan.

74 In our view the issues which revolve around the height of the proposed building can be usefully discussed under the following broad headings:

* Is a proposal for a ten storey building premature because of the absence of a structure plan?

* Is a proposal for a ten storey building acceptable from an urban design perspective?

* Does the proposed ten storey building have any unreasonable off site amenity effects? and

* Is the proposed six storey podium height, appropriate in the Lygon Street context?

75 We have ultimately formed the opinion that the absence of a structure plan in this case is not an obstacle to the approval of the proposed building. Our reasons for this conclusion relate to timeliness, the detailed strategic framework which already exists under the Planning Policy Framework, and the particular characteristics of the subject land.

i The Lygon Street/Albert Street Urban Village was identified as a priority urban village site in 1997, in a report entitled Urban Villages: A Sustainable Future for Moreland adopted as council policy on 23 June 1997. This report was predicated on the preparation of structure plans for urban villages, and discussed the preparation of two to three structure plans per year.[11] This Urban Village was fourth on a list of 27 urban villages.[12]

ii Carlos Constructions Pty Ltd own a number of key sites within the subject urban village, and have been discussing with the Responsible Authority an integrated approach to the development of these sites since 2001, some work has progressed, but to date no preferred structure plan has been developed.

iii The Urban Villages review report identified as a short term priority, the preparation of a structure plan for the Brunswick Major Activity Centre (centred on Sydney Road). The Lygon Street/Albert Street Urban Village is within the sphere of influence of this major activity centre, and it is recommended that the structure planning exercise include an assessment of the role and function of this activity centre, among others.[13]

77 The long delay to date in the preparation of a structure plan for the subject urban village (notwithstanding the existence of a developer with significant land holdings therein) and the priority which must reasonably be given to the development of a structure plan for the Brunswick Major Activity Centre, casts doubt on the likelihood that a structure plan will be prepared within a reasonable time frame. The subject land presents an important opportunity to achieve the planning objectives of a planning scheme, and of Melbourne 2030 in this context it is important that the potential of the land is optimised, and that its redevelopment occurs in a timely way.

78 Structure planning is indeed an important but not essential tool for management of development. If one considers the number of activity centres which have potential for development of the type encouraged by Melbourne 2030, one has a sense of the enormity of the task and the time and resources required. As for Moreland, every municipality will have activity centres which have a higher priority than others for preparation of structure plans. Brunswick Major Activity Centre is an example of this. It ought not be the case that development elsewhere outside these priority activity centres must be delayed or otherwise compromised if it is otherwise supported by the planning scheme and the sites characteristics.

79 The Moreland MSS, and the local planning policy framework in general, provides a very detailed strategic framework for land use development within the municipality. The planning scheme as it presently exists does not prescribe a preferred height for the subject land, be it five storeys, ten storeys or twenty storeys. However this is not a case when the planning scheme fails to provide guidance in relation to issues relevant to the question of the buildings height. The planning scheme in fact provides a sound basis for the consideration of the redevelopment of the subject land.

80 The subject land is a large redevelopment site on Lygon Street, separated from land within a residential zone by more than 30 metres. The land in a Business 3 zone to the east of the subject land ensures that land within a residential zone which may be affected by overshadowing from the proposed building is separated from the subject land by distances greater than 80 metres to the east, and 90 metres to the south. The subject land is located close to the centre of the subject urban village. These site characteristics favour the development of a taller building on the land, and distinguish it from many other sites along Lygon Street. The approval of a ten storey building on the subject land will not necessarily be a precedent for the widespread development of other ten storey buildings along Lygon Street. It is the particular context and the distinguishing characteristic of the land which has informed our decision

81 It is interesting that the absence of structure planning is argued to be an obstacle to a building of the proposed height, but it is not an obstacle to a substantial five storey building here and elsewhere nearby on Lygon Street. As we have found in this case height is an issue which can be decided on a case by case basis by reference to the general policy framework, the emerging streetscape character and the likely amenity impacts. However there are other planning issues which are not so amenable to this approach, an example of this, in this case, is the evident desire of the responsible authority to widen the Lygon Street footpath.

82 The ground level façade of the proposed building is inset by 1.7 metres and we note that the building recently approved on the corner of Victoria Street has a similar although not identical inset. If this approach is followed for every development on all the developable sites in the urban village then the planning objective will ultimately be achieved. This is an example of a objective which requires the uniform achievement of a particular outcome in a large number of developments over a very considerable time frame, maybe decades rather than years.

83 It is in relation to this type of planning objective that a policy such as a structure plan is of importance. The achievement of the ultimate outcome is no longer dependant on the maintenance of a corporate memory of an unwritten policy. Unless you are Baron Hausmann and rebuilding Paris, height will rarely be an issue of this type. Height will be determined by reference to an established neighbourhood character or where substantial change is anticipated, height will be determined by reference to the general policy framework, the preferred or emerging streetscape character and the likely amenity impacts.

84 Time and resources are an obstacle to timely "full blown" structure planning. Perhaps a more pragmatic approach is required for activity centres(or urban villages) other than the Principal or Major Activity Centres. An approach might be to identify the planning issues which require uniform application over many sites, over time, for achievement. Where such issues exist a more limited plan or policy could be prepared.

85 Both Mr Tyblewych and Mr Czarny emphasised the importance of the building's base or podium as the feature of the building which defines its impact on the streetscape. Mr Czarny advocates a strong double storey street wall as a dominant element, although he acknowledged the presence of taller buildings in the streetscape. Mr Tyblewych referred to the more recent, taller buildings which in his view defined an emerging streetscape wall of 4 to 5½ storeys.

86 It was Mr Tyblewych's ultimate analysis that the proposed, strong, six storey building base defined the building's contribution to the streetscape, and was acceptable in the emerging streetscape character. In his view the upper storeys of the building are, by comparison, recessive elements which do not contribute overwhelmingly to the streetscape, and are not inappropriate in the locality.

87 Mr Czarny argued that a ten storey building would be a dominant and incongruous element in a streetscape whose preferred character is of village scale. Mr Czarny advocated a hierarchy in building height and form within the hierarchy of activity centres or urban villages. In his view the subject urban village is a low order centre, within which buildings should be similarly modest in scale.

88 We believe that Mr Tyblewych's assessment is more fairly based on the emerging character of development within this part of Lygon Street. Moreover, the outcome which follows from Mr Tyblewych's assessment is more consistent with the realisation of the potential of the site in the context of the expectations created by the broader planning policy framework and Melbourne 2030.

89 The height and scale of buildings within activity centres will not be determined so much by the position of a particular centre within the hierarchy of activity centres, rather it will be determined by particular locality characteristics, including the likely implications for off site amenity, streetscape character, heritage issues and the like.

90 The only real amenity effect consequent upon the proposal to build a building on this site greater than five storeys in height, is the potential for overshadowing of Lygon Street. We have dealt with this issue elsewhere in this decision, and concluded that the effect is not unreasonable. The only other amenity effect alleged during the course of the hearing, was its visibility.

91 The proposed building is a visually attractive building of its type. It is therefore difficult to discern the loss of amenity which would result from it from being visible. A ten storey building will be visible from a larger number of vantage points than would a five storey building. From a streetscape perspective, in this case the most important perspective, a five storey building would also be highly visible and would be a very substantial change to the appearance of the site and its locality.

92 We are of the opinion that it is the base or podium of the building which is of most important from this "the building will be visible" perspective. While from time to time a person in a street either as a pedestrian or a driver will look up, and appreciate the taller elements in their environment, the observer ordinarily focuses on the immediate lower scale environment, and taller objects are seen as distant elements in this low level view. This bring us to the question of the podium height

93 The discussion above of the contentious issue of height has focussed on the importance of the base or podium of the proposed building. The base or podium comprises six storeys. A question which has exercised our mind is the question of whether or not this base or podium is too high. Mr Tyblewych found the proposed podium height acceptable, even though it was at the high end of the height which would derive from his assessment of the appropriate approach to determining the podium height in what he called a "Main Street" context.

94 We agree that it is difficult to be dogmatic about what is the correct answer on issues such as this in the context of this site where change is being advocated. The newer buildings being developed, or recently permitted within the locality have podium heights within the range of 4 to 5½ storeys. A number of the buildings with four storey podiums, have a fifth storey setback a relatively short distance behind the four storey podium. It is highly unlikely that the "street wall" will develop at a uniform height.

95 The architecture of the building, in particular the design of the balconies ensures that the entire six storey podium is perceived as defining the streetscape interface of the building. Ultimately we have formed the view that the podium should be reduced in height by one storey, without reducing the overall height of building. On balance we think that a five storey podium is more consistent with the emerging character of the locality and while we do not expect that podium heights should necessarily be entirely uniform, this section of Lygon Street is somewhat narrower than elsewhere, and we do not think that it is the appropriate location for a taller podium.

96 In simple terms we think the building could be modified by deleting a level within the levels 2 to 5, and adding a level within the levels 7 to 8. Nevertheless we intend to express the requirement to reduce the podium height more generally in the permit conditions, because it maybe that Mr Metaxas has a more creative approach to the resolution of this design issue.

97 The existing policy framework is sufficient to enable a decision to be made on a building of this height in a timely manner. It is the base or podium storeys of the building which is most important from an urban design or streetscape perspective, and it is considered that the podium of this building should be reduced by one level. The upper levels of the building are sufficiently recessive to ensure that while visible, they will not unreasonably alter the emerging character of the locality, while aiding in the achievement of other planning objectives, in particular the provision of housing.

98 Clause 21.05-2 of the planning scheme referred to earlier in this decision identifies urban villages as focus areas for change within the municipality. However, this identification of the potential for redevelopment within urban villages comes with an important proviso.

A central concern of this implementation plan is to control development within urban villages so that the appropriate quality and style of development is achieved and the urban village concept is not simply abused as a way of cramming inappropriate development into streets that currently function well.

99 Having considered the submissions and evidence and inspected the site we have formed the view that with some modification the proposal for redevelopment is of an appropriate quality and style for this urban village. There is no objective evidence that the proposal will do anything other than enhance the function of Lygon Street in this locality. In particular we conclude that:

* having regard to the Melbourne 2030, and the State Planning Policy Framework, but more particularly having regard to the Local Planning Policy Framework, more intensive redevelopment of the subject land for a mixed use purpose is strongly supported.

* the intensive redevelopment of the subject land will result in some off site amenity impacts. The most important of these impacts is the overshadowing of the maternal and child health centre. However, these amenity affects do not go beyond what could be reasonably expected, having regard to the policies found within the Moreland Planning Scheme.

* the existing policy framework is sufficient to enable a decision to be made in relation to a building of this height in a timely manner. It is the base or podium storeys of the building which is the most important from an urban design or streetscape perspective, the podium of this building should be reduced by one level. The upper storeys of the building are sufficiently recessive to ensure that while visible, they will not unreasonably alter the emerging character of the locality, while aiding in the achievement of other planning objectives, in particular the provision of housing.

100 In deciding the conditions to be included on the permit we have regard to the "without prejudice" conditions provided to the Tribunal by the Responsible Authority, the submissions and evidence of the parties during the course of the hearing, and the matters which arise from our reasons set out above. We believe that some comment is warranted in respect of a small number of the contested conditions.

101 The proposed design includes provision for bicycle parking. The conditions proposed by the Responsible Authority included a requirements that bicycle parking be provided at a ratio of one space per dwelling. We agree that this does seem to be a very high ratio, however, during Mr Metaxas' evidence, it was apparent there were a number of solutions to the provision of bicycle spaces possible. Our solution has been to generalise the requirement and trust that a solution satisfactory to the Responsible Authority can be negotiated.

102 A condition which resulted in some debate, was a condition requiring a 5 star energy rating for the proposed dwellings. We have some reservation about conditions of this type, particularly in the light of the recently introduced regulatory regime under the Victorian chapters of the Building Code of Australia. The appropriateness of including energy rating conditions in planning permits is questioned for the following reasons:

* Dwellings are not treated equally under the planning scheme provisions. It is generally only medium density dwellings which require planning permits, and can be subject to energy rating conditions different to those set out in the building control. In many instances these are buildings which will be inherently more efficient, in a global context, than dwellings not caught up in the planning control process. Moreover, there are already significant development related cost penalties with these more efficient building types.

* The energy rating regime established under the Building Code was developed after very extensive consultation and in introducing the regulations, the state Government has presumably had regard to its other social and economic objectives in addition to those relating to environmental sustainability.

103 This is not to say that conditions requiring higher ESD standards will always be inappropriate. Not all aspects of ESD are dealt with under the current regulatory regime in the BCA, and there may be circumstances in which a higher standard than that set out in the BCA is warranted. However, if a higher energy rating is to be required, then such a requirement will require a higher level of justification including, we would argue, some assessment of the social and economic implications of the widespread application of higher standards above and beyond those required by the BCA.

104 The Responsible Authority sought a condition requiring the undergrounding of the power cables currently extending across the frontage of the subject land. We agree that from an aesthetic perspective the undergrounding of power cables is a desirable objective, and is a outcome we would encourage. However, we can see no particular nexus between the proposed development and the undergrounding of power cables in Lygon Street, and do not consider the condition to be a valid condition. In any event, projects like the undergrounding of power cables are better implemented on a precinct wide basis, using different powers to those found in the planning scheme and the related planning permit process.

[1] Neighbourhood Character Guidelines - Draft June 2003

[2] Neighbourhood Character Guidelines - Draft June 2003 - page 33

[3] The entire clause is persuasively relevant, however, the quoted extract has been truncated for brevity.

[4] Moreland Urban Villages Review, February 2004 - Page 1

[5] Moreland Urban Villages Review, February 2004 - Attachment 7

[6] Moreland Urban Villages Review, February 2004. - Attachment 4

[7] Moreland Urban Villages Review, February 2004. - Para 1 Page 15

[8] Keylink Properties Pty Ltd v Yarra CC & Ors [1999] VCAT 242

Bamfra Nominees PL v Darebin CC [2003] VCAT 1741

Gatum Holdings Pty Ltd v Banyule CC [2004] VCAT 1035

[9] P1516/2003 Carlos Constructions Pty Ltd v Moreland City Council - para 23

[10] Neighbourhood Character Guidelines - Draft June 2003 - page 9

[11] Urban Villages: A Sustainable Future for Moreland - page 14

[12] Urban Villages: A Sustainable Future for Moreland - page 19

[13] Moreland Urban Villages Review, February 2004. - Page ii