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

(a)

Bicycle parking in accordance with clause 52.34 of the Planning Scheme.

(b)

A minimum of one (1) car parking space to be clearly shown as allocated to each shop and dwelling within the building.

(c)

Wind amelioration measures as recommended by the Wind Climate Assessment Report required by Condition 4 of this permit.

(d)

Details of all proposed exterior materials, decorations, colours and finishes shown on elevations and a separate sample board. Three copies of the sample board must be submitted to the Responsible Authority in a form that can be filed (ie. a colour copy on a page that can be folded).

(e)

The elevation plans must specify natural ground level, finished ground level, finished floor level and total building height measured relative to a level taken from a defined point on the footpath at the front of the site that will not be altered during construction or in relation to Australian Height Datum (AHD) without any actual changes to buildings heights or finished floor levels.

2 The use and development as shown on the endorsed plans must not be altered except with the consent of the responsible authority.

3 Before the construction or carrying out of buildings and works commences the owner shall provide a report by an Environmental Auditor that the environmental conditions of the land are suitable for the use and development that are the subject of this permit to the satisfaction of the Responsible Authority.

4 Prior to the commencement of the development, a comprehensive wind tunnel testing of the development must be undertaken by the permit holder and a Wind Climate Assessment Report submitted to and approved by the Responsible Authority. The Climate Assessment Report must include recommendations as to any modifications required to the development to ensure acceptable wind conditions to the surrounding streets and public areas. The modifications must be carried out and completed to the satisfaction of the Responsible Authority.

5 Prior to the commencement of the development, a reflectivity assessment of external glazing and any other visibly reflective material must be submitted to the Responsible Authority. The reflectivity assessment must be to the satisfaction of the Responsible Authority and when approved will form part of this permit.

6 All works must be undertaken in accordance with the endorsed Environmentally Sustainable Development (ESD) Management Plan prepared by Sustainable Development Consultants dated February 2005 to the satisfaction of the Responsible Authority.

7 Prior to the commencement of the development, a landscape plan prepared by a suitably qualified landscape architect must be submitted to and approved by the Responsible Authority. The landscape plan must show the location, quantity, size and botanical names of all proposed vegetation and be in accordance with the Moreland Landscape Guidelines and Technical Notes.

8 Before any of the building is occupied (or by such later date as may be approved by the Responsible Authority in writing), the landscaping works shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority. After installation, the landscaping shown on the endorsed landscape plan must be maintained to the satisfaction of the Responsible Authority.

9 Prior to the commencement of the development, a Public Areas Development Plan must be submitted and be to the satisfaction of the Responsible Authority. The plan must provide for the following:

(a)

The provision for cabling underground to relevant infrastructure services.

(b)

All redundant vehicle crossovers removed and the kerb and channel reinstated.

(c)

The details and location of all lighting proposed for public areas.

(d)

Paving and planting treatments, including street tree planting and footpath design.

(e)

The treatment of all surfaces within the public area.

10 Before any of the building is occupied (or by such later date as may be approved by the Responsible Authority in writing), the works shown on the endorsed Public Areas Development Plan must be carried out and completed to the satisfaction of the Responsible Authority. The cost of all such works must be borne by the developer/owner of the land.

11 A Waste Management Plan must be prepared to the satisfaction of the responsible authority. It must be implemented and complied with at all times to the satisfaction of the Responsible Authority.

12 Before the development commences, three copies of a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plan will form part of the permit. The plan must address, but not be limited to, the following:

(a)

Hours of demolition and construction.

(b)

Methods to contain dust, dirt and mud within the site, and the method and frequency of clean up procedures.

(c)

Facilities for vehicle washing.

(d)

The protection measures for site features to be retained (eg. vegetation, retaining walls, buildings, other structures and pathways, etc).

(e)

Delivery and unloading points and expected frequency.

(f)

A liaison officer for contact by residents and the Responsible Authority in the event of relevant queries or problems experienced.

(g)

The movement of construction vehicles to and from the site must be regulated to ensure that no traffic hazards are created in and around the site.

(h)

Parking facilities for construction workers.

(i)

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

(j)

An outline of requests to occupy public footpaths or roads, and anticipated disruptions to local services.

(k)

The processes to be adopted for the separation, re-use and recycling of demolition materials.

(l)

The measures for prevention of the unintended movement of building waste and hazardous materials and other pollutants on or off the site, whether by air, water or other means.

(m)

The measures to minimise the amount of waste construction materials; the provision for the recycling of demolition and waste materials; and the return of waste materials to the supplier (where the supplier has a program of reuse or recycling).

(n)

The measures to minimise noise and other amenity impacts from mechanical equipment and demolition/construction activities, especially outside of daytime hours.

(o)

The provision of adequate environmental awareness training for all on-site contractors and sub contractors.

13 The Construction Management Plan approved under Condition 12 of this permit must be implemented and complied with at all times to the satisfaction of the Responsible Authority.

14 The car parking spaces provided on the land must be for the occupants of the building and not subdivided or sold separate from the development for any reason.

15 The car park entry door is to be automatic and able to be remote controlled.

16 The vehicle access card reading, intercom and/or other security device required to operate the entry door into the car park must ensure the convenient access of tenants/occupiers and visitors.

17 An automatic light must be installed and maintained in the car park entry area so that the light operates automatically when a vehicle enters or leaves the land between dusk and dawn and no direct light is emitted onto any adjoining property.

18 Prior to the occupation of the development, access to the site, any vehicle crossover and any ancillary road and road drainage works must be constructed to the satisfaction of the Responsible Authority (Moreland City Council, City Infrastructure Department).

19 Prior to the occupation of the development, external lighting on the land must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse amenity impact on any adjoining property.

20 All boundary walls must be constructed, cleaned and finished to the satisfaction of the Responsible Authority.

21 Prior to the occupation of the development, any air-conditioner unit, plant and generator equipment shown on the endorsed plans must be screened from the view of adjoining properties and the street, and acoustically insulated to the satisfaction of the Responsible Authority.

22 A mailbox containing a newspaper holder must be provided for each of the premises at the street frontage. The mailbox dimensions, location and height must be consistent with the standards specified by Australia Post to the satisfaction of the Responsible Authority.

23 All telecommunications and power connections (where by means of a cable) and associated infrastructure to the land must be underground to the satisfaction of the Responsible Authority.

24 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 rainwater down pipes.

25 The development shall be drained to the satisfaction of the Responsible Authority.

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

(a)

The development is not started within two (2) years of the date of this permit.

(b)

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

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

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 C Canavan QC with Mr P Connor of Counsel. They called evidence from Mr S Mc Gurn Town Planner and Mr F Chaney Architect.

Ms M Marshall, Lawyer. Ms Marshall called evidence from Ms R Hansen Town Planner

1 Carlos Constructions Pty Ltd has applied for a review concerning the failure of Moreland City Council to determine an Application for Permit for use and development of an 11 storey building comprising 41 dwellings, 2 commercial/retail tenancies and four levels of basement car parking at 304-310 Lygon Street, Brunswick East.

2 Whilst the Council failed to make a decision within the prescribed time it subsequently formed the opinion that it would have refused the application on 10 grounds. Essentially these grounds can be synthesized to:

•

Excessive building height and mass of the building

•

The proposed building is inconsistent with Local Policies and in particular the Development Within Urban Villages (Clause 22.02) and Lygon Street Precincts (Clause 22.04)

•

There is a lack of respect for neighbourhood character and urban design

3 Sophie Osborn and Robert Osborn, Objectors, claimed that:

•

The development is not site responsive and does not respond to its context.

•

The proposal is unsympathetic to the character of the neighbourhood which is influenced by nineteenth century low scale development.

•

The development generates too many unreasonable off-site adverse amenity impacts.

•

Given the size of the site at just 675 square metres, the capacity of the site simply cannot adequately accommodate this scale of development.

4 Mr De la Coeur supported the responsible authority and other objectors' submissions.

5 Mr Canavan on behalf of Carlos Constructions, submitted:

(a)

There is clear State and Local planning policies that supports optimisation of good development sites

(b)

The tall elements of the building are similar in overall scale to the earlier proposal approved by the Tribunal at 326 - 350 Lygon Street

(c)

It is important that the Tribunal have regard to Clause 11 of the Planning Scheme which requires it to balance conflicting objectives in favour of net community benefit and sustainable development

(d)

Whilst the site is not located within an immediate area which has the features of a major activity centre it does follow that this precinct cannot have medium rise buildings located within it or that some notional activity centre hierarchy will be upset if buildings of a 10 storey scale are constructed in this urban village

(e)

There is no foundation to the argument that the development of this building will be contrary to activity centre hierarchy

(f)

The site may not be located in a major activity centre, however this is not relevant for the purpose of consideration of the appropriate scale of the building in this case

(g)

The proposed building does not raise any offsite amenity impact

(h)

The surrounding laneway and roadwork will comfortably accommodate the traffic generated by the proposal

6 The principal issues to be resolved in this application are:

• Has the proposal responded to the relevant State and Local Planning Policy Framework

• Is the proposed development compatible with the character of the area and in particular the height of the building

• Will there be any unreasonable offsite amenity impacts from the proposed development

• Does the development provide a suitable standard of amenity/facilities for future occupants

7 It is proposed to develop an 11 storey building comprising 41 dwellings and 2 retail tenancies above 4 levels of basement car parking. The two commercial/retail tenancies and the main pedestrian lobbies for the apartments face Lygon Street. There will also be direct access to rear car park and loading bay facilities. All levels will be connected by lift to basement car parking in four levels.

8 Vehicular access to the basement is via a rear bluestone right-of-way.

9 The proposed building will be 37 metres in height with a podium along the Lygon Street frontage to a height of five levels or 16.3 metres above ground. The building will then have various set backs from Lygon Street, including:

• 4 metres at levels 5 - 8 with balconies located within the front setback

• 2.4 metres at level 9, noting that the penthouse lap pool area has a glazed roof at this alignment

• 5.84 metres for the upper level of the penthouse

10 There are also some setbacks from the rear boundary of zero, 1.54 metres and 4.5 metres to the upper level of the penthouse. In addition, there are various architectural elements, including recesses to accentuate the different features and levels of the building

11 The architecture of the building is modern contemporary with three layers being the podium (ground plus levels 1-4), the mid-levels (levels 5-8) and the top levels being the two storey penthouse (levels 9-10). The architectural form and finishes seek to delineate the three layers by way of materials, colours and finishes. The main building material is pre-cast concrete, zinc cladding and rendered finishes. A steel framed screen extends vertically from the podium providing an enclosure to the proposed roof gardens of the upper levels.

12 A total of 58 car parking spaces are provided in the basement carpark. There is also provision for bicycle parking at each level.

13 Garbage collection facilities are provided in the maintenance area at ground level with direct connection to the rear right-of-way.

14 The subject site is located on the eastern side of Lygon Street. It has a frontage of 20.12 metres, a depth of 33.53 metres and an overall site area of 674.6 square metres. A 3.5 metre wide right-of-way abuts the eastern boundary of the site and provides vehicle access to the rear of commercial properties fronting Lygon Street and the light industrial uses and residential properties fronting Gale Street.

15 The site is relatively flat and is occupied by one and two storey brick buildings which are essentially built to all boundaries. These buildings have been primarily used for manufacturing.

16 The locality is varied in terms of built form and land usage. Overall it comprises a mixed urban form and use, and this is evident in the eclectic character of the locality. Much of the streetscape is characterised by one and two storey commercial buildings from the Victorian era through to pre 1960s. However in recent years there has been an influx of medium density housing of a higher built form and greater intensity.

17 Land to the north of the site comprises a two storey brick building used as a textile business.

18 Land further north is vacant. The Tribunal was told that a permit has been granted at the direction of VCAT for a five storey commercial and residential building.

19 Progressing further north, land is occupied by one and two storey buildings used for retail and commercial purposes. Further north again is the Maternal and Child Health Care Centre at 320 Lygon Street which is a single storey art deco building set back from the street. This building originates from the 1920s and is subject to an individual Heritage Overlay (HO106).

20 Then at 326-350 Lygon Street is a development site earmarked for large scale redevelopment. The Tribunal was told that a permit had been issued at the direction of VCAT (P303/2004) for a 10 storey residential building.

21 Land to the south of the site comprises commercial buildings and further to that is the East Brunswick Club Hotel which is a large three storey Victorian building located on the corner of Lygon and Albert Streets. It is covered by a Heritage Overlay along with other residential properties on the northern side of Albert Street.

22 Land to the immediate east of the site on the other side of the right-of-way generally comprises a mix of commercial, light industrial and some residential properties which are one and two storeys in height.

23 Land to the east of Gale Street is residential.

24 Opposite the site on the western side of Lygon Street are a number of one and two storey buildings mainly used for retail and commercial purposes with some residential uses.

25 The locality is well serviced by public transport with at least two tram routes running along Lygon Street linking the Melbourne CBD.

26 The subject site and properties abutting to the north and south are zoned Business 1 under the Moreland Planning Scheme. The purpose of the zone is:

To encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses.

27 No overlays apply to the land.

28 Permission is required for:

•

Buildings and works under clause 34.01-4of the planning scheme.

•

Use of land for dwelling because the residential element at the ground floor frontage of the land exceeds 2 metres (ie. the entry lobbies).

•

To reduce car parking requirements under clause 52.06-1

•

To reduce the size of the loading bay dimensions under clause 52.07

29 There are various State and Local Planning Policies of relevance in this application. These include:

•

Clause 11 Introduction, Goal and Principles

•

Clause 12 Metropolitan Development

•

Clause 21 Moreland Municipal Strategic Statement

•

Clause 22.02 Development within designated urban

30 There are also other provisions relating to car parking, loading, bicycle parking and an Urban Context Report and there are other more general policy directions at both State and Local Policy Framework level which were referred to by all the parties and these are succinctly contained in the Book of Documents provided by Ms Marshall on behalf of the responsible authority. We will refer to the more relevant parts of these policies in our decision.

31 At the review hearing the responsible authority, the applicant and the Mr Kane provided detailed written submissions whilst Mr De La Coeur verbally advised he supported the Council and the Osborn's submissions. We were provided with locality plans, plans and elevations and cross sections of the proposed development, planning scheme maps and documents, details of Amendment C43 concerning neighbourhood character and buildings over three storeys, reports on the Moreland Urban Villages Review February 2004, together with photographs of the subject site and locality.

32 Mr McGurn, Ms Hansen and Mr Chaney provided written evidence statements and were available for cross-examination. Mr Turnbull provided a written submission but was not called to give evidence.

33 In addition we undertook an inspection of the subject site and locality following the review hearing.

34 The primary matter of debate in this application relates to the height of this eleven storey building. The Council and objectors were strongly opposed to what they regarded as the excessive height having regard to its context whilst objectors raised both the context and offsite amenity issues such as overlooking and overshadowing.

35 Ms Marshall, on behalf of the responsible authority, claimed the applicant has proceeded on the false assumption that the site is within the Brunswick Major Activity Centre. Ms Marshal referred to recent recommendation of the Priority Development Panel which placed a 7 storey height limit on the Coburg Principle Activity Centre. She said it is counter intuitive that a Major Activity Centre should have taller buildings than a Principle Activity Centre. She also claimed the decision concerning the site to the north at 326-350 Lygon Street Carlos Constructins Pty Ltd v Moreland City Council[1] should be read in the context that it was decided at the same time as the Mitcham Towers decision. She claimed its value as a precedent is limited because of changes that have occurred both locally and at state level since that time.

36 Ms Marshall relied on the evidence of Ms Hansen whose principal criticisms of the proposal are best summed up in paragraphs 112 and 113 of her evidence report which stated:

112 As I have stated earlier, this section of Lygon Street is a transport corridor with a mixture of uses and does not have the character nor the width to support development to the height proposed. This intensity of development is more suited to the Urban Villages which have been identified as capable of being designated a Neighbourhood Activity Centre within the Brunswick Major Activity Centre zone. These sites are primarily located along a train line, have a streetscape more capable of supporting tall, bulky buildings and provide the community with a wide choice of retail, employment, entertainment and community service options.

113 The Lygon Street / Albert Street Urban Village precinct and surrounds is too isolated from community, business and retail activities to warrant the intensity of development that an eleven storey residential building brings to the area In the context of Melbourne 2030 and Clause 12 I see the Lygon St / Albert Street Urban-Village to continue developing as a transport corridor suited to accommodating mixed use development fronting Lygon Street that incorporates commercial space at street level and up to 5 additional storeys of residential use above depending on the mass and bulk of the development and its off site amenity impacts.

37 This is to be contrasted to the evidence of Mr McGurn for the applicant who said at paragraph 91 of his statement:

91 In a sense, the existing local policies are of limited relevance in terms of defining appropriate building heights for the site. The Lygon Street Precincts Policy states that buildings over three storeys may be considered on larger sites, with taller buildings set back from the street, while development up to three storeys should be constructed to the street frontage. This infers that taller buildings can be accepted (with no specific limit referred to) but that the podium should be a maximum of three storeys. Weaknesses of this policy, however, relate to the fact that it does not refer to the designated urban villages identified along Lygon Street and the aim of accommodating greater density at these nodes. More significantly a number of more recent developments along Lygon Street are clearly at variance with the 3 storey podium height, having podiums of four and five storeys and importantly this has been supported by the Tribunal (specifically in the decision relating to 326-350 Lygon Street - VCAT reference P303/2004).

38 We consider, having regard to the various submissions, our own observations and having regard to the context of the site and the planning policy framework, that the proposed development has responded well to the emerging character of this area and its height will not result in a loss of amenity to the area. We consider it will provide impetus for further change to this area which is in transition and in time will contribute to a new urban form. The design has responded well to the relevant dominant building stock and the emerging built form elements. The modern contemporary design is appropriate and it will produce a net benefit to the neighbourhood. It is a good example of urban consolidation because it has maximised its site context without any appreciable negative off sit amenity impacts.

39 The design follows an emerging theme of providing a five storey podium form along the Lygon Street frontage with upper levels recessed beyond this element. This was from the concept adopted for the ten storey building which has been approved nearby at 326-350 Lygon Street. It forms a logical connection to the parapet level of the East Brunswick Hotel building which has three Victorian levels that in contemporary architectural terms translates to about five storeys. It also follows the flavour of other recent medium rise residential and mixed use buildings along Lygon Street. During our observation we noted a number of larger medium density housing developments erected along Lygon Street with higher sections of building set back from the street or podium level.

40 We have some difficulty understanding why a podium level building up to five storeys on the street which then rises another five or six levels is an undesirable planning outcome in the context of this section of Lygon Street when there are other buildings with four or five storey podiums along the street and higher buildings erected above them.

41 Whilst Ms Hansen was critical of the height on the basis of the relative narrow width of Lygon Street and the concern about creating a canyon effect, we consider this concern has been addressed by limiting the podium to five levels and then recessing the building above this podium. We consider the five level podium will produce the strongest facade context to the building. That is a similar height to other contemporary buildings approved along Lygon Street and the dominant East Brunswick Hotel building.

42 This is not a tall, bulky building. Rather, given its relatively narrow frontage and restricted footprint, we consider it to be a tall, slender building of elegant proportions and well conceived detail. Bulk in buildings is not about height but about proportions - proportions of the overall building envelope and the relationship between the envelope and the architectural elements such as fenestration, entrances, roof, façade articulation and decorative detailing. Reducing the height of a building will not reduce the bulk of a building if its inherent proportions are not right in the first place. For example, the building at 408 Lygon Street is not saved from being bulky just because it is only 5 storeys in height.

43 'Bulky' has entered the planning lexicon as a derogatory term. Initially it referred to any building extremely large and massive. Now it has become a shorthand term to refer to a building that doesn't work aesthetically because it lacks pleasing proportions. But over-use of the term and its inappropriate equation with any building that is tall, and hence disapproved of, threatens to devalue the term as a useful description. In our view, the term 'bulky' should be confined to being an assessment of proportion and overall size, not automatically equated with height. There is nothing wrong with height in a building per se. Height only becomes a problem when it gives rise to adverse off-site effects and when it is in the wrong context.

44 This development has minimal off-site effects and certainly no direct effects on dwellings in nearby residential zones. And it is not in the wrong context. In fact, we would say that the context for a building of this type is exactly right.

45 The Tribunal in Carlos Constructions Pty Ltd v Moreland City Council[2] analysed the policy context applying to this part of Lygon Street and stated:

[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.

46 The policy context has not changed since that decision and the subject land is only 40 metres distant from the land in that case. Our conclusions on policy are the same as those of the Tribunal in the earlier Carlos Constructions case. We have independently read the policy provisions in the planning scheme and had regard to the careful analysis by both Mr McGurn, on behalf of the applicant, and Ms Hansen, on behalf of the council, in reaching our conclusion.

47 It is clear that local policies affecting the site envisage quite significant change within this area. It is also clear that 10 and 11 storey buildings are substantially taller than existing buildings. The key issue is therefore the degree to which development should be bound by existing character and the importance that that should be placed on the achievement of higher density development and key policy objectives in a location that we consider is well suited to accommodating change.

48 Whilst Ms Hansen claimed there was little policy support for an 11 storey building, we on the other hand see there is little policy reason for saying there should not be an 11 storey building. Whilst we agree that support for a higher order building should not be made solely on the basis of good public transport access, having regard to the manner in which the area is undergoing change and a higher more intensive built form is replacing lower order commercial and industrial buildings, it would seem that this new form of development produces a superior standard of urban design than the current run down stock.

49 Lygon Street is a long, well established, commercial strip. It has been designated as an urban village in the local planning policy framework of the Moreland Planning Scheme.

50 We were not persuaded that the council's current intent to prepare a structure plan for the Brunswick Major Activity Centre, the study area for which includes Brunswick Road and Lygon Street, should lead us to reject this proposal pending the outcome.

51 Strategic planing is not a static exercise but one that is ongoing in response to changing economic, social and demographic trends. There is no single point that is ever arrived at when it can be said with certainty, "this is our vision for this locality, fixed for all time". Rather, planning is dynamic. The council has identified this area as an urban village and set out its policies and objectives in the planning scheme. They may change in the future, but that is no reason for freezing development in the meantime, especially when the development supports the policies and objectives.

52 Similarly, we were not persuaded by Ms Hansen's focus on the lack of retail facilities and distance from major centres, such as Barkly Square in Brunswick Road, as grounds for saying it is unlikely that Lygon Street will be designated as a Major Activity Centre. We consider it is irrelevant whether Lygon Street is given such a designation. This is not a commercial development, in which case its place would be in a suitable activity centre, but a residential development. Intensive redevelopment for residential purposes throughout Melbourne isn't just restricted to Major Activity Centres. Such a restrictive interpretation of Melbourne 2030 would dramatically curtail the potential to achieve its key objectives, which are aimed at a sustainable future.

53 The strongest policy direction emerging from a consideration of state and local policy is to promote sustainable neighbourhoods. Increasing the intensity of activities and people within an area is central to the idea of creating sustainable neighbourhoods.

54 But whilst policies at a state and local level promote the concept of sustainable neighbourhoods or 'urban villages', people tend to shy away from the translation of this concept into reality when presented with specific projects, such as the one in this case. They baulk at notions of 'intensity' and 'density' fearing that they will lower some ill-defined, established benchmark of what is acceptable. Projects such as the present are different to the status quo. They introduce change and will modify the character of this section of Lygon Street, but is that a bad thing? We think not.

55 If ever there was an area close to the Melbourne CAD able to absorb change, this is it. There are no Heritage Overlays that might define or otherwise constrain built form. There is excellent public transport. There may not be a supermarket within five minutes walk, but as new dwellings proliferate, shops and other facilities to serve the growth in population will establish. Already there is evidence of this and the proposed building design promotes this outcome by providing retail premises at street level. There is a continuous strip of suitably zoned land able to accommodate mixed uses. There are nodes, which include the subject site, where the Lygon Street properties are buffered from immediate abuttal to residential zones/uses by industrial or other non residential zones/uses. This frees up those nodes for more intensive development because the amenity issues often encountered at the interface between residential and business zones are absent. The existence of these nodes create the potential for clusters of higher built form and more intensive development, which results in diversity along the length of the Lygon Street strip. Already there exists an eclectic mix of use and development. It is an area that has undergone many changes throughout its history, each era adding a different layer. The present changes which are occurring are only adding yet another layer, but in the process they are reinvigorating the strip with life and activity as more people return to live in what was a run-down area with a depleted population.

56 Making neighbourhoods sustainable entails achieving a critical mass of population and development to generate the informal vitality of streets, viable businesses and impetus for improvements to public transport and facilities, thus leading to energy efficiency through reduced travel demand and car usage. To achieve this requires maximising opportunities for development in appropriate locations. Nothing, we believe, will be served by requiring this development to be shorn of several stories simply because, at 11 stories, it is perceived to be 'too tall'. Reducing the height would destroy the pleasing proportions and design of the building and reduce the potential population increase for no benefits that we can see. In our view, the policy objectives of promoting sustainable neighbourhoods expressed in state and local planning policies would be undermined by requiring a height reduction resulting in fewer dwellings and hence fewer residents.

57 We acknowledge that most of the newer buildings along Lygon Street are in the order of four and five storeys but there does not seem to be any adverse amenity outcomes arising from the higher built form which is set back from the podium level streetscapes.

58 It may be a much different outcome if the building had an immediate abuttal to a residential zone, where the visual form and mass would have a more immediate effect on abutting properties; and overshadowing and where overlooking may be a more critical. However, in this case there is no residential zone interface with this section of the Lygon Street business area. Mr Chaney the applicant's architect, aptly referred to this as a "bulge" of commercial activity and built form and we agree it is an important planning and contextual issue to consider in the formulation of the design response.

59 Mr Kane raised concerns about the overlooking and overshadowing from the development to properties to the southeast of the site. There was some debate about the extent of overlooking and the degree of adverse impact from overshadowing. We acknowledge there will be an increase in overshadowing from the building. However, most overshadowing in the middle of the day will be over the commercial properties to the south. These properties do not rely on sunlight for a residential style of amenity. There will be an increase in overshadowing in the afternoon period over the properties to the southeast but again these properties are located in a Business 3 Zone, and different amenity considerations apply to them.

60 Similarly, there will be some overlooking from the apartments in the building to surrounding properties to the east but the extent of overlooking is diminished to some extent by the oblique angle of viewing, not to mention that the view is of factory roofs, commercial buildings, and the occasional remnant dwelling with various lean to and stair structures. This is not a case of overlooking conventional back yards.

61 Interestingly the there was no objection from the owners or occupiers of the only two dwellings at the rear of the property. This is understandable because the site is owned by the applicant, its interface with the subject site is one of a high rear wall and it is not clear to us if the dwellings were inhabited as their condition is somewhat degraded.

62 We do not consider it is appropriate to strictly apply standards found in Clause 55 (ResCode) to determine amenity standards in this business area. The site is in a Business 1 Zone and the sites referred to by Mr Kane are zoned Business 3. The amenity provisions applicable to these zones are found in clauses 34.01-2 and 34.03-2. These clauses refer to matters usually related to industrial activities, such as the transport of goods and materials, appearance of the building, emission of noise, smell on so forth.

63 In assessing amenity impacts, it is important to examine the site context and planning scheme provisions applicable to both the subject site and the site that it is alleged will suffer a loss of amenity. We note what Member Moles said in Kelghan Pty Ltd v Mornington Peninsula Shire Council[3] :

[24] ...With respect to transitional sites or sites located at the interface of zones, the Tribunal has said on numerous occasions that there needs to be an expectation that in each zone, the use and development of land will be constrained or influenced by the adjacency of land in the other zoning."

In this case the site is not adjacent to or at the interface with a residential zone. Rather the nearest residential zoned land is a small "L" shaped section of land in Albert Street and on the western side of Sedgeman Street, quite some distance away.

64 Accordingly we find it difficult to see any resident in the adjoining commercial zoned land, if there is one, being adversely affected by the proposed use and development. Persons living in a commercial zone, set in the context of a built up commercial and light industrial environment, cannot expect the same level of amenity to that found in a conventional residential area. In the closest land that is within a residential zone we find that there will be no adverse amenity effects.

65 Mr Kane expressed concern about the need for a development, which adjoins a heritage place or a heritage overlay, to respect the adjacent heritage context. The subject site does not adjoin a heritage place or a heritage overlay. Whilst there are some isolated heritage buildings along this section of Lygon Street, with the exception of the East Brunswick Hotel, these are not dominant features in this eclectic streetscape. We are satisfied the proposed built form does not detract from the important heritage assets that do exist this area. In fact, part of the design response takes its cues from the built form of the East Brunswick Hotel.

66 We note the responsible authority did not raise any concerns about vehicular access or parking and no party sought to cross-examine Mr Turnbull. Whilst we accept that the right-of-way to the rear of the site will provide the sole vehicular access to the site, we consider that its current condition is rather ordinary and we experienced some delay in accessing it during our inspection. We suspect there will be a need for the Council to examine traffic movements in the future, particularly if this development and the two recently approved developments proceed as approved. We suggest the council may wish to implement one-way traffic so as to reduce future conflicts.

67 We consider the proposed building is a positive response to the site context and urban consolidation policies. It will provide a positive contribution to this emerging mixed use area and there will be little, if any, amenity impacts on surrounding and nearby properties. We consider, on balance, that the proposal will be a net benefit to the area..

[1] [2004] VCAT 1752

[2] [2004] VCAT 1752; (2004) 18 VPR 130

[3] [2000] VCAT 2538