[2002] VCAT 666

A. The decision of the Responsible Authority is varied. A permit is granted for the use of the land at No. 405 High Street, Northcote, for the purpose of dwellings, buildings and works, and a reduction in car parking, in accordance with the endorsed plans and subject to the conditions set out in the Notice of Decision dated 19 September 2001 with the following conditions varied:

s A new Condition 1(b) is added as follows: "Deletion of level 4".

s Conditions 1(b) to (h) are re-numbered as 1(c) to (i) inclusive.

s Re-numbered Condition 1(d) is deleted and replaced with the following: "Measures as required to the habitable room windows facing High Street to achieve an appropriate level of internal acoustic amenity".

(i) Provision of openings, with glass bricks to the west elevation of the wall abutting the laneway, to provide additional daylight access to Units G.05, G.06, G.07, 1.10, 1.11 and 1.12 and their private open spaces and to provide some articulation of that wall.

(j) Translucent screening to a height of 1.7 metres above finished floor level to the west-facing balconies of dwellings within the Elm Street building that are not screened by the western boundary wall.

(k) Translucent screening to a height of 1.7 metres above finished floor level along the external (east) corridor of the Elm Street building to prevent overlooking into adjacent balconies and living areas and to limit visibility between habitable room windows.

(l) Location of all roof top antennae, telecommunications devices, and other external plant and equipment.

s Condition 12 is deleted and Condition 13 is re-numbered as Condition 12.

Ms J Forsythe of Counsel appeared by direct brief on behalf of the Applicants for Review.

Mr I Walters of Lain Walters Pty Ltd appeared on behalf of the Responsible Authority.

Mr I McP Pitt SC of Best Hooper Solicitors appeared on behalf of Respondent/permit applicant. He called Mr G Metaxas, Architect of Metaxas Architects; Mr R Milner, Town Planner of Coomes Consulting; and Mr T Hardingham, Traffic Engineer of Andrew O'Brien and Associates Pty Ltd; to give evidence.

A number of plans, photographs and other documents were tendered to the Tribunal. All material has been considered by the Tribunal and is retained on file. Witnesses were made available for cross-examination.

The site and locality were inspected by the Tribunal subsequent to the Hearing.

1. This is an Application under Section 82 of the Planning and Environment Act 1987 ("the Act") brought by S Cooney and others for a review of a decision by the Darebin City Council to grant a permit in application no. D449/01. A Notice of Decision was issued by the Council on 19 September 2001 subject to conditions. The Application for Review was lodged on 11 October 2001 with a detailed statement of grounds.

2. At the commencement of the proceedings, Mr Pitt SC tendered a revised set of plans. He indicated that they show an increased number of car spaces across two whole basement levels (total 81). He did not seek to substitute the plans but stated that the increased amount of parking could be provided by way of condition if required by the Tribunal.

3. The subject site is contained in a single lot and is located on the west side of High Street, close to its intersection with Elm Street. The land is "L" shaped with a frontage to High Street of 28.5 metres and a frontage to Elm Street of 17 metres. The site abuts a laneway to its west, for a length of some 40.2 metres. The total site area is approximately 1,729 square metres. The land falls from High Street and rises to the south from Elm Street.

4. The site is occupied by a three storey building that is used as the Elysee Reception Centre, shops and offices. It was said to have originally been a theatre. A later addition faces Elm Street and is two storeys. There is also an existing lower level car park that services 11 vehicles.

5. The existing building is quite prominent in the High Street retail precinct given its height and breadth. It has a high central singular brick columnar element (blade) that is shown on the plans to rise to around 18 metres. The remainder of the façade varies in height from 11 - 13 metres. The rear includes a large brick wall along the laneway that is around 9.2 metres in height. The concrete building fronting Elm Street is around 8 - 9.2 metres in height.

6. The subject site abuts a two storey bank building to its immediate north. That building is located on the corner of High Street and Elm Street and the subject site essentially wraps around it.

7. To the west side of the lane is a small vacant lot and then a row of single storey residential cottages.

8. The High Street retail precinct generally contains buildings of 1-2 storeys in scale. Elm Street comprises single storey cottages, with one recent two storey dwelling opposite the subject site, abutting a lane and the business precinct to its east.

9. High Street is a main road with tram services. Elm Street is a local residential street.

10. It is proposed to demolish the existing buildings and structures on the land and develop the site for retail premises at the ground level facing High Street and 48 residential units across the remainder of the land.

11. The proposal comprises two buildings at ground level and above, linked by a central courtyard. Two levels of basement parking are proposed, with the upper level extending across the whole of the land. A total of 65 car spaces is proposed, 8 within tandem bays. [As noted, the tendered plans provide for an additional 16 car spaces in an extended basement level].

12. The building facing High Street has four retail tenancies of varying sizes at ground level fronting the street. They are centrally separated by a pedestrian walkway that provides access to two dwellings to the rear of the shops and a lift and stairs that service the 30 dwellings above. There is a mix of 1, 2 and 3 bedroom units with the larger units being at the upper levels. All units are contained within one level.

13. The building to the rear of the land, facing the lane and Elm Street, comprises 18 dwellings. It includes a single two bedroom dwelling at a "lower ground" level, accessed off Elm Street, with parking behind. All other units are accessed via High Street or the basement car park. All units at ground and first floor levels are within a single level and have two bedrooms. Seven double storey units extend across levels 3 and 4. The two storey dwellings all comprise two bedrooms with the exception of one single bedroom unit. There is no lift access to units in this rear building.

14. The building facing High Street (we refer to as "the High Street building" for ease) has a height of approximately 20.3 metres, excluding existing telecommunications facilities that will be rationalised and sited on the roof level. The building is proposed to abut all boundaries at ground level, with the exception of the 2.7 metre wide central walkway to the lift lobby and dwellings that is setback by around 1.1 metres from the street. At levels 1 and 2, 2 metre wide individual balconies front High Street. Level 3 is proposed to be setback by 2.65 metres from the street with balconies abutting the street. Level 4 is setback by 1.5 metres to the edge of the balcony and 3.85 metres to the face of the building. Level 5 is setback by 2.65 metres to the edge of the balcony and 4.9 - 5.65 metres to the face of the building.

15. The upper levels of the High Street building are built to the side boundaries to Level 4, with a setback from both side boundaries at Level 5 of between 2.5 and 6.32 metres.

16. The building facing the lane and Elm Street (we refer to as "the Elm Street building") appears as three levels with the fourth level stepped back by between 2.3-4.97 metres (in a curved form) and a fifth level stepped back by 8.15 metres. The building is partly constructed to abut the laneway near to the intersection with Elm Street and also relies on a wall to around 8.5 metres in height abutting the southern portion of the abuttal with that laneway. The western elevation is setback by a minimum of 5.18 metres at ground level (the courtyards are between the wall and building) and 6 metres where there is no intervening wall. The second level maintains the same setback. The third level is setback by 3.8 metres to the balcony and 5.54 metres to the building with the upper-most level within a curved roof form. The overall height above natural ground level is around 15 metres. Some balconies overhang the Elm Street footpath.

17. The lane to the west of the site is proposed to be widened in part to 6 metres.

18. The separation between the two buildings is around 11.26 metres at the upper-most level of the Elm Street building and this is maintained throughout.

19. Mr Metaxas explained the design including the "tripartite expression" of the High Street building and its vertical metal clad blade elements and canopy to the street. The upper-most levels of the Elm Street building are proposed to be clad in zinc.

20. The subject site is located in a Business 1 Zone under the provisions of Clause 34.01 of the Darebin Planning Scheme. The purpose of the zone is:

s To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

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

21. The transitional provisions of the Scheme apply at 24 August 2001. However, as the proposal is more than 4 storeys, the Good Design Guide does not apply. Alternatively, the provisions of Clause 19.03 of the Scheme addresses design and built form considerations. The provisions of the Zone do not require a permit for the use of the land for dwellings where the frontage does not exceed two metres. No permit is required to use the land for the purpose of a shop provided the leaseable floor area does not exceed the amount specified in the Schedule (not applicable).

23. A number of other Clauses of the Scheme are relevant to the consideration of this Application, and have been taken into account by the Tribunal, including:

s State Planning Policy Framework - Clauses 15.12, 16.02, 17.01, 17.02, 18.01, 18.02 and 19.03.

s Local Planning Policy Framework - Clause 21 (Municipal Strategic Statement). The Council's Urban Character Study is a reference document. The subject site is not within an urban character precinct. It adjoins Precinct A1 which is west of the laneway abutting the site and Precinct A2 on the north side of Elm Street.

s Provisions at Clauses 52.06 and 52.07 addressing parking and loading facilities.

s General decision guidelines at Clause 65.01 relating to development.

24. During the Hearing, an issue arose in relation to the permissions that are required for the proposal and whether the exemption provisions set out at Clause 34.01-4 apply. This flowed from questions asked by the Tribunal during submissions as to the applicability of any exemption provisions to the proceeding.

25. As the Tribunal was not constituted by legally qualified members, we sought and obtained the agreement of the parties, pursuant to Clause 66 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, to decide the matter.

26. Some oral submissions were made by the parties in relation to this matter and we granted leave for further written submissions on this matter alone. [We observe, but place no weight on the fact, that the Respondent's written submissions (at paragraph 2.2.3) and expert evidence appear to have been prepared on the basis of a review of the whole of the development not just that part of the subject site within 30 metres of the adjacent residential zone].

27. Detailed supplementary submissions were provided by Ms Fosyth (dated 14 June 2002 and received by the Tribunal on 20 June 2002) and Mr Pitt (dated 17 June 2002). We do not recite the details of the supplementary submissions in full as they are retained on file. There was a delay in the Tribunal receiving confirmation that the Council would not make a further submission, that eventually occurred on 15 July 2002. The position taken by Council at the Hearing was consistent with that put by Mr Pitt, that is, those parts of the development that are more than 30 metres from residentially zoned land are exempt; that is a distance of 27 metres into the site given the 3 metre wide lane.

28. Given that the matter of the relevant permissions is critical to the ambit of the Tribunal's discretion and the matters of concern to the parties, we turn to the provisions of the Zone and the supplementary submissions next.

PERMISSIONS REQUIRED AND APPLICATION OF EXEMPTION PROVISIONS

29. No permit is required for the use of the land as a shop in accordance with the Zone provisions at Clause 34.01. Buildings and works require a permit pursuant to Clause 34.01-4. Exemptions provisions in relation to notice and review rights are set out, which we refer to later. The provisions of Clauses 52.06 and 52.07 in relation to car parking and loading are relevant to the retail use.

30. The Zone provisions do not require a permit for the use of the land for dwellings where the frontage does not exceed two metres. There is no dispute that some dwellings within the Elm Street building face Elm Street and therefore require a permit for their use. In relation to the High Street building, Mr Walter's submission states that "no dwelling has a frontage to the street at ground level". Mr Pitt more specifically challenged the view that the dwellings in the High Street building require a permit for use as those parts of the proposed building comprising dwellings G.01 and G.02 do not face High Street. He also submitted that if the Tribunal reached a contrary view, then the accessway could be reduced to 2 metres thereby negating the need for permission.

31. We accept that the accessway could be modified to 2 metres or possibly less. However, we do not accept submissions that, as currently designed, all of the proposed dwellings in the High Street building do not require a permit for their use. The two ground level dwellings as well the dwellings above the retail component and most of the dwellings within the Elm Street building are all accessed by a communal 2.7 metre wide central walkway from High Street. At Clause 72 of the Scheme, the definition of "Frontage" is: "The road alignment at the front of a lot. If a lot abuts two or more roads, the one to which the building, or proposed building, faces".

32. In this case, the building within which Units G.01 and G.02 are located faces High Street. Although Units G.01 and G.02 do not overlook High Street, the building within which they are located and their primary pedestrian entry is via High Street and is more than 2 metres wide. We conclude that the use of the land for dwellings falls within Section 2 of the Table of Uses and requires a permit.

33. We are aware of a number of Applications for Review where other divisions of the Tribunal have determined that where an entry off the main frontage at ground level to units exceeded 2 metres then the proposed apartments required a use permit in a Business 1 Zone. Recent examples include Application for Review Nos. P51535.2001 PCH Melbourne Pty Ltd v Melbourne City Council and Ors and P51153.2001 Dentow Pty Ltd v Stonnington City Council and Ors.

34. The situation of the Business 1 Zone differs, for example, to the Residential 1 Zone or Mixed Use Zone where Clauses 32.01-6 and 32.04-7 state that a permit is required for buildings and works associated with a Section 2 use. In the current Application, buildings and works require a permit pursuant to Clause 34.01-4. It is argued by Mr Pitt that if there is a use permission for the dwellings the buildings and works exemption still applies to part of the development. We discuss that below.

35. The development, as a whole, requires a permit for buildings and works pursuant to Clause 34.01-4. The provisions include the following exemption clause:

An application is exempt from the notice requirements of Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of the Act. This exemption does not apply to an application for a building or works within 30 metres of land (not a road) which is in a residential zone or Business 5 Zone, land used for a hospital or school or land in a Public Acquisition Overlay to be acquired for a hospital or school.

36. The supplementary submissions by Ms Forsyth rely on a number of authorities for the propositions which were summarised by her as including:

s where a single development proposal involves the making of several discrete permit applications (albeit in the one document), review rights attach not to the approval of the development as a whole but to each of the discrete permit applications. Therefore, it is possible that review rights attach to some aspects of the proposal but not others.

s there is only one "buildings and works" application in the current case. To view the proposal as involving more than one buildings and works application is artificial and contrived.

s the exception in the exemption clause applies to "the application" in question and not to the buildings and works proposed (or parts of them).

s the buildings and works application must attach to the whole of the land which is proposed to be developed.

s the land that is the subject of the permit application and buildings and works approval is within 30 metres from residentially zoned land.

37. The submissions by Mr Pitt in relation to the operation of this Clause cited a number of authorities and concluded (inter alia) as follows:

s the intent of the exemption clause is to address the proximity of a proposed development to sensitive uses and confer third party rights in this regard.

s the definition of a building includes part of a building and therefore the objectors do not have rights of appeal in respect of the proposed building that is further than 30 metres from the residential zone.

s if the objectors can not establish that their Application falls within the proviso (exception to the general exemption) then the exemption applying generally to applications for permission under Clause 34.01-4 applies and there no objectors rights in relation to any part of a building to be constructed in the Business 1 Zone. Here the proviso to the exemption calls for different treatment for the permission sought for the construction of a building or part of a building within and beyond the 30 metre criterion.

s if it is found that the use of the ground floor dwellings require a use permit then such a permission does not extend to development.

38. Having reviewed the submissions we conclude that the land that is the subject of the permit application and Application for Review is within 30 metres of a Residential 1 Zone and a permission for buildings and works is not exempt from the review rights of the Act. We summarise our reasons below.

39. We first state that we accept a number of the submissions of the parties, namely:

s that an intent of the exemption appears to be to focus on the interface between a proposed development within the Business 1 Zone and a nearby residential zone or other potentially sensitive land use situations.

s that a single permit application can comprise several applications in so far as different provisions of the Scheme cause multiple permissions to be required. The current permit application is an example whereby the proposal requires buildings and works approval pursuant to the Business 1 Zone, use permission for dwellings in that Zone, and approval for a reduction in car parking pursuant to Clause 52.06.

s that the use permission required for dwellings in this case is separate to the permission required for buildings and works.

s the definition of building can include part of a building in accordance with the definitions at Section 3(1) of the Act.

40. The current Application relates to one land parcel which we were advised is contained in a single title. As a single unit, that area of land is within 30 metres of a Residential 1 Zone, albeit only part of the area falls within that dimension.

41. We find it artificial and too narrow to interpret the exemption clause as applying to only some of the buildings and works for which application is made under Clause 34.01 or as applying to only part of the land for which the permit application is made (ie. to effectively divide the site horizontally and vertically into different "units").

42. The Scheme does not define "land". Clause 71 of the Scheme states:

A term used in this planning scheme has its ordinary meaning unless that term is defined:

- In the Planning and Environment Act 1987 or the Interpretation of Legislation Act 1984, in which case the term has the meaning given to it in those Acts unless it is defined differently in this scheme.

43. Section 3(1) of the Act defines "land" as including:

(a) Buildings and other structures permanently fixed to land; and

(c) Any estate, interest, easement, servitude, privilege or right in or over land.

44. As recognised in Application for Review No. 1998/94208 Zullaphella Pty Ltd v Stonnington City Council and Ors, the definition of "land" in the Act does not reference a number of components of "land" that may be expected when adopting an ordinary meaning; it is an inclusive term.

45. The view expressed by the Tribunal in Application for Review No. 2000/075150 S. Alexiou, A. Gianakis and LAS Nominees v Monash City Council, is relevant:

... the land to which the subject application applies is the whole of the land comprising the two separately owned parcels" (Emphasis added).

46. That approach is applicable to the current circumstances in so far as it recognises that a permit application can relate to part of a single land parcel, a single title or more than one title, lot or land parcel. Other Applications have made specific findings in relation to these considerations (eg. Application for Review No. 2000/9769 Ruven Nominess vs Greater Dandenong City Council and Ors).

47. We also find it to be relevant that the proposal before us is an integrated design; although comprising two buildings at ground level and above, it proposes a basement car park servicing all components of the development beneath both buildings and an intervening courtyard that gives pedestrian access to both buildings and a level of amenity to dwellings in both buildings that face into it.

48. Consequently, we find that the land that is the subject of the permit application and Application for Review is not exempt from the review rights of the Act.

49. We have said that we concur with submissions that an intent of the exemption clause is to give persons associated with sensitive uses at the interface of a proposed development within the Business 1 Zone both notice and review rights.

50. It is the proximity of the subject site to the residential zone that gives rise to the third party rights being exercised by the Applicants for Review in this permit application. Can it therefore be said that the Tribunal's ambit of discretion is confined to the interface issues, or are there a range of considerations that can and should properly be addressed in this review, namely the range of matters set down in the decision guidelines at Clause 34.01-4? [We say that putting to one side the discretion under Clause 52.06 in relation to car parking where there is no debate that third party rights apply in considering an application for a reduction in parking].

51. The submissions made by Mr Pitt and Council suggest a narrowing of the review in this way, contrary to Ms Forsyth's submissions. Although there is no debate that the Elm Street building may fairly be contended to have potential off-site amenity impacts to nearby residential properties, there is not the same level of agreement in relation to how we should address our consideration of the High Street building.

52. We acknowledge the source of the review rights that are being exercised by the Applicants. However, it is important that there is nothing in the Scheme that directs that the matters set out in the decision guidelines of the Zone should be differently considered when a permit application relates to land within 30 metres of a residential zone. Issues arising at the interface of business and residential zones can be very wide-ranging. There may be the (arguably) quantifiable and discrete elements of visual and acoustic privacy, daylight and sunlight impacts. There are also the often more subjective and less clearly defined (in geographic terms) matters of streetscape and neighbourhood character. While zone boundaries are relevant, consideration of matters such as neighbourhood character and streetscape relationships frequently extend beyond those boundaries. Therefore, in the context of the components of the Application before us and physical circumstances of the subject site, we find no reason to unduly restrict our review and find it appropriate to address the decision guidelines at Clause 34.01. We are mindful that the evidence and submissions presented by all parties addressed this breadth of matters.

53. The situation before us can be contrasted with Application for Review No. P641/2002 Manning v Macedon Ranges Shire Council and Anor recently determined. In that matter, the Applicant for Review lived a considerable distance from the review site and was not an owner or occupier of land in the residential zone to which the subject site adjoined. In addition, the physical setting of Woodend is not comparable with the much more closely settled pattern of Northcote and the forms of the proposals in either matter are significantly different.

54. We next turn to the merits of the proposal. We do not recite in full the submissions and evidence presented by the parties as the comprehensive documentation tendered is retained on the Tribunal's file. The key issues in this Application are:

s whether the proposal is consistent with the policy direction for the development of this area; this discussion raises issues of "landmark" buildings and a draft interim Council policy on developments exceeding four storeys.

s whether the scale of the development is acceptable having regard to the existing built form and the policies of the Scheme.

s whether the proposal results in unreasonable potential off-site amenity impacts in terms of visual and acoustic privacy.

s whether the proposal results in unreasonable traffic and parking impacts.

s whether the proposal achieves an acceptable level of internal amenity.

55. We address each matter in turn, having regard to the policies, objectives and decision guidelines of the Darebin Planning Scheme. We record that there appears to be no in principle opposition to the land use components within the concept and we also find no issue in that regard.

56. There is no debate between the parties as to the current Scheme policies that are relevant to this Application. The issues, instead, are the extent to which new development should respond to the existing character and whether a landmark building on the site is justified in terms of the policies. A further matter is the weight to be given to the Council's Interim Policy Position on Multi Level Residential and Mixed Use Development (December 2001).

57. The subject site is referred to in Clause 21 as an "Internodal Activity Area". A core retail area is identified at the intersection of High Street and Separation Street/Arthurton Road, south of the subject site. Clause 21.04 explains that High Street contains a number of core retail centres and there is a range of land use activity between those nodes on the main road. In these areas there are:

Opportunities to facilitate land use change that leads to better usage of existing infrastructure and supports the function of the retail centres need to be explored by Council. Potential to encourage a mixture of uses, including residential development is an option being currently reviewed by Council.

58. This direction, and need for review, is recognised in a number of other parts of Clause 21, such as Clause 21.06 which refers to pressures for land use change in terms of residential use. Under the heading of "Future Work" Clauses 21.10 and 21.11 specify that a "Mixed Use policy" will be prepared to "set the parameters for applying Mixed Use Housing Zone in locations undergoing land use change, namely the `internodal activity areas along High St". We observe that there is no specific guidance to the form of development in these locations.

59. Clause 21.11 addresses housing issues. Generally, the policies encourage a range of housing styles and types with medium density housing in "appropriate locations" and of an "appropriate scale and density" and "responsive to urban character objectives". The Clause can be said to link Internodal Activity Areas with policies relating to housing diversity:

To encourage medium density residential development in appropriate locations along High Street internodal activity area to enhance retailing activity and enable better usage of existing infrastructure.

60. Clause 21.12 addresses urban character. We note that the strategies set out seek to apply the principles of the Council's Urban Character Study and precinct guidelines. We have already noted that the subject site is abuts areas included within character precincts, but is not itself included.

61. Clearly, further work in relation to the High Street Internodal Areas is foreshadowed by the Scheme. We were provided with a copy of the Council's Interim Policy Position on Multi Level Residential and Mixed Use Development (December 2001). We refer to this as "the Interim Policy" for ease. It addresses (inter alia) residential or mixed use development involving five or more levels anywhere within the City of Darebin and sets out the "major planning considerations" that are relevant to such applications. We were advised at the Hearing that public consultation in relation to the Interim Policy is continuing, having been exhibited publicly from late December 2001 to late March 2002. A report to the Council was expected to be presented in mid June 2002.

62. The Interim Policy identifies preferred locations for multi-level development including sites containing existing buildings of a height and bulk substantially greater than the prevailing height and bulk in the immediate locality, sites located on a Road 1 Zone, sites within 400 metres of a railway station, and sites where a high level of amenity can be offered and off-site amenity impacts minimised. Sites that are unlikely to be suitable for multi-level development are identified and we note that none of the criteria apply to the current Application for Review. We do not recite all elements of the Interim Policy, but note that height, setback, amenity impacts and car parking (among other matters) are addressed. Height limits are not specified, rather, reference is made to site context. There is some reliance on Rescode provisions which are not relevant in this Application for Review.

63. We do not give the Interim Policy weight given its interim status. Moreover, the version upon which submissions at the Hearing were based has not been the subject of a full public consultation process and the document is not referenced or incorporated into the Scheme. We give greatest weight to the existing provisions of the Planning Scheme. However, we do recognise Council's intent to develop a policy for the internodal areas along High Street, including the possibility of more intensive development forms when contrasted with adjoining residential areas.

64. Taking into account the policy direction of the Scheme, in principle, we find that a multi-level intensive mixed use scheme on the subject site is acceptable when considering the site's main road frontage, its Business 1 zoning which supports intensive development, and the site's excellent access to various forms of public transport, retail services and other facilities. We also accept that the proposal can add to housing diversity objectives of the Scheme.

65. The Applicants for Review submitted that there is no policy basis for a landmark building on the subject site. There are references in the Scheme to landmarks at Clause 19.03 and to "gateway" locations in Clause 21. We accept the submissions by the Applicants that there is nothing within the Scheme to specifically earmark the subject site as a landmark opportunity. We return to this matter later.

66. In relation to other considerations, Clause 21.04 recognises that Darebin will continue to experience high levels of road traffic, including internally generated traffic. Policies relating to transport and access are set out at Clause 21.14. Reference is made to a High Street, Northcote, Parking and Access Study. We are not aware of any Parking Precinct Plan relevant to the current review.

67. The Applicants opposed the scale of the proposal. Ms Forsyth submitted that the proposal relies too heavily on the height (blade) of the existing building on the land and would be "vastly out of scale with surrounding buildings". She submitted that the subject site does not have landmark or gateway status either in terms of the Scheme or its physical setting. Ms Forsyth submitted that there are other landmarks in the City and unless the site is recognised as a landmark there is no justification for the scale and height proposed. Attention was also drawn by Ms Forsyth to a number of major developments proposed in the wider area and including along High Street and adjoining the railway line to the western end of Elm Street.

68. The Council submitted that the proposal is acceptable and would improve the streetscape. Reliance was placed on compliance with the Interim Policy.

69. The Respondent submitted that the proposal responds to the urban consolidation policies of the Scheme as well as the local planning policies that seek to encourage activity and improved built form along High Street. Mr Pitt relied on the evidence of Mr Milner. Mr Milner gave evidence that the site is "ripe for and in need of renewal and investment". He stated that the existing building on the subject site is a landmark in terms of its location (on a bend/kink in High Street) and built form (eg. size and wide frontage). He went on to express a view that this part of the City is lacking in landmarks to articulate this location as a major intersection and retail core and that Clause 19.03 allows for landmarks to be created. The proposal, Mr Milner said, provides a structure that is taller and of a greater mass than the existing buildings and will be a landmark. Although policies seek new development and infill development that is responsive to the site and have regard to existing urban character, Mr Milner gave evidence that the proposal assists to achieve objectives relating to economic development, housing needs, quality urban design and efficient use of infrastructure. That is, an appropriate balance is struck.

70. In relation to the Elm Street building, Mr Milner gave evidence that the existing wall height along the western boundary is retained, with the taller elements being set back. He said that the proposal represents a reasonable transition to the residential area.

71. Mr Milner's evidence, and other submissions by the parties, address other considerations of Clause 19.03, such as pedestrian environment and architectural quality. We note that the architectural quality is at issue. Ms Forsyth described the design as mediocre, whereas Mr Milner and Mr Metaxas referred to the appropriate modulation, "ribs" or "fins", and variation to the High Street façade. It is also noted that Mr Milner suggested that a single telecommunications device, as shown on the plans, is unlikely to suffice, and a detailed design for these elements is required.

72. We now turn to our consideration of the submissions and evidence.

73. We consider that, as an integrated development, the proposal focuses building mass to the High Street frontage of the site and then progresses down toward the residential area to the west and north-west. That is an acceptable approach in principle.

74. We agree with Ms Forsyth that there is no policy basis for the designation of the subject site as a "landmark" in terms of the policy direction of the Scheme. The parties agree that the existing building on the subject site is, however, prominent. This results from the following factors - its location on bend in High Street; the breadth, height and form of the structure and its blade/telecommunications equipment which contrasts with the generally finer grain of lower development in the immediate vicinity; the building's distinct existing pink finish; and the social and community role played by the reception centre/theatre over many years. It is relevant that the bend in High Street and the topography of that road result in the existing building being both visually prominent and concealed from various vantage points in near and far distance views. Generally, the upper portion of the building (blade/telecommunications) is visible. We have noted the presence of the Reception Centre from All Nations Park.

75. The subject site is not a strategic location in a physical sense and we accept Ms Forsyth's submission that there are plenty of existing landmarks to guide and service frequent and infrequent visitors to the area.

76. However, these findings are not fatal to the proposal. The form and scale of the existing building is a relevant consideration. Taking into account the policy direction set out in the Scheme, the Applicant has a reasonable expectation to be able to build to a similar mass and scale as existing buildings on the subject site. In this case, there is no basis for redevelopment to have to revert to a significantly lower scale than that existing.

77. In relation to the High Street building, we note that the proposal does not significantly exceed the height of the existing development on the land when taking into account the telecommunications and related equipment currently atop of the Elysee Reception Centre. However, it is obvious that the proposed development would fill in much more of the site at these upper levels. Consequently, its scale and mass is far more substantial and would be visible from a wider area, both near to and further removed from the site, than at present.

78. We have carefully considered the relationship of the High Street building to its immediate and wider setting. While Ms Forsythe was critical of the architecture of the proposal as a whole, we do not accept those submissions. We also do not consider that a development should be confined to a three or four level building, as was suggested. Generally, the design is well considered, including the horizontal variation that treats the upper levels differently to the more solid base. Having said that, we have concerns about the height differential presented by a six storey structure in a predominantly two storey section of streetscape. Significant expanses of blank walls would be apparent to both side elevations that would be exposed from many viewing points. Moreover, the fin/blade elements and high floor to ceiling heights of the fifth level accentuate the scale and mass.

79. We consider that the deletion of one level (eg. level 4) and modifications to the articulation of the fifth level (deletion of blades as required by the Notice of Decision) would produce a more appropriate outcome in terms of the current policies and objectives of the Scheme. That would result in the building presenting as three solid lower levels, with two upper levels that are contrasted in their form, materials and finishes. The setback of the fifth level is adequate.

80. Appropriate weather protection is proposed along High Street.

81. The Elm Street building is higher than the existing structure that faces that street. However, the higher elements are setback into the site and would appear sufficiently recessive in views from High Street and Elm Street. Overall, we do not find the height problematic. We find the curved roof form to be appropriate and it assists with a graduated transition from the residential area to the west. We consider that balcony detailing, the widening of the laneway and the part-cantilever of the building over that widened section are acceptable.

Impact on Adjacent and Nearby Existing Residents

82. The main issue raised by Ms Forsyth in relation to potential off-site impacts concerned the intent to retain the high rear western wall. She submitted that removal of the wall would present a smoother transition to the residential area, reducing overshadowing and visual bulk. However, other consequences flow in terms of loss of privacy. She suggested a modified, lower, building should be preferred. These submissions were challenged through Mr Milner's evidence on the basis that the relationship and transition are acceptable. We note that Mr Milner proposed some punctuations to the wall, which we discuss below.

83. The immediately adjoining land to the west of the subject site is vacant. It is a long narrow lot. We note that there are no east facing windows (ie. toward the subject site) within the closest dwelling.

84. We have no difficulty, in principle, with the Elm Street building and its inter-relationship with the vacant land and residences to its west. The retention (involving re-building) of a wall along much of this boundary limits overlooking potential and would not worsen existing morning shade on properties to the west.

85. While another approach involving a "softer" interface may well be suitable, we do not find the current proposal to be inappropriate in its massing. Having said that, for reasons we discuss below, some punctuations within the wall would be beneficial for several reasons and can be addressed by way of permit condition.

86. With increasing distance, the upper levels of the proposed development would be progressively exposed to view from residential properties in Elm Street. Although apparent, we do not find the consequent visibility of the buildings to be unreasonable in terms of off-site amenity effects.

87. We accept Mr Milner's evidence that, subject to some additional screening measures, the proposal is acceptable in terms of potential overlooking to existing Elm Street residences. The western boundary wall would prevent overlooking from many units. We accept Mr Milner's evidence that it would be appropriate to require screening to the west-facing balconies of dwellings within the Elm Street building that are not protected by the western boundary wall. We note that this would impact on the internal amenity of some units and that there is the potential for a south-facing window to be introduced into some bedrooms (eg. G.04 and 1.09) to provide additional light and without causing internal or off-site amenity issues. Although we do not require the additional windows as a condition, it is a change that can be considered in the preparation of revised plans.

88. As noted, the proposal retains a western wall along the site's abuttal to the lane, at a similar height. Taller elements to the Elm Street building are recessed into the site. Consequently, shadowing impacts are not significantly greater than exist at present.

89. The presence of the relatively high western wall along the laneway has an effect of considerably enclosing the private open space to the ground level and, to a lesser extent, the first floor west-facing units in the Elm Street building. Mr Milner suggested that the liveability of these units and their open spaces would be improved by creating "windows" in the wall as well as adding some visual relief to the wall. We accept that evidence and this can be addressed by condition. We consider such openings should be of translucent glass (eg. glass bricks) to avoid overlooking to the properties to the west of the subject site.

90. Mr Milner also recommended that a 1.7 metre high translucent screen be located along the external corridors of the Elm Street building to prevent overlooking into adjacent balconies and living areas and to limit visibility between habitable room windows. We accept this evidence and can require it to be addressed by permit condition.

91. Local residents expressed concern about the adequacy of parking provided within the development, particularly for visitors. Much of their concern related to the potential for overflow parking into local streets. However, when taking into account the expanded parking area proposed by Mr Pitt in the tendered plans, these concerns were substantially addressed. We note that a condition included on the Notice of Decision requires an increased parking provision (10 visitors, 54 for units and 8 for commercial tenancies, ie. a total of 72 spaces).

92. Mr Hardingham's evidence was that parking provision on-site (based on the application plans) would be sufficient to cater for the demands generated by the development. His assessment took into account credits associated with the existing use, survey results, and existing deficiencies associated with that use. Mr Hardingham's evidence was that no additional spaces are necessary.

93. We note that there are parking restrictions in Elm Street and that there is an overflow into this street from the retail precinct. There is also parking associated with the railway at the end of Elm Street.

94. We find that the amount of parking proposed in the tendered plans is ample to service the needs generated by the development. However, if 6 units are deleted as we required through the deletion of level 4 (discussed above), then 42 units remain, of which only 4 are three bedroom. On this basis, 65 spaces as proposed in the application plans are adequate to service the residential and commercial components. We find that the larger car park is acceptable if desired by the Respondent, but do not require it.

95. The proposal may result in some on-street parking in Elm Street or High Street, but we find no basis to reject it for that reason. Some residents or their visitors may park in the street, as others do at present, but there are no factors that would persuade us that, to the degree that might occur, such a situation would be unreasonable. We give weight to the fact that the site has excellent access to public transport and that the development comprises mainly one and two bedroom units.

96. Policies in the Scheme relating to parking and access are set out at Clause 21.14, in addition to the standard provisions of the State Planning Policy Framework and Clause 52.06.

97. Local residents expressed some concern about an increase in traffic in local streets and the operation of the intersection of Elm Street and High Street. The possibility of a left-turn only from the car park was suggested.

98. Evidence in relation to traffic impacts associated with the proposal was given by Mr Hardingham. His report is retained on file and we do not recite his evidence in full. He concluded that around 237 trips per day would be generated by the residential component, with about 10% in a peak hour. He considered that the additional traffic generated by the proposal in Elm Street can be absorbed within the capacity of the street and would not be likely to be discernible, particularly when taking into account potential activity associated with the operation of the Reception Centre. He did not consider any turn restrictions to be warranted.

99. Residents may have concerns about the local traffic situation and increased vehicle activity. The proposal would result in higher traffic volumes at times when (we understand) the Reception Centre has not been operational. However, we are not persuaded that the impacts of the development result in a change that is unreasonable and should be rejected.

100. We also accept Mr Hardingham's evidence that the access and egress arrangements proposed for the various components of the development are suitable and workable without the need for turn restrictions.

101. No issues were raised by the parties in relation to loading provisions which, for the retail tenancies, is via High Street.

102. At the Hearing, it was noted that Conditions 8 and 12 address the same matter and are not consistent. One condition seeks a 4 star energy rating while the other seeks a 5 star rating. Submissions were made by the parties in relation to this matter and we accept the Respondent's position that the four star rating be required.

103. We have adopted a number of the conditions suggested through the course of Mr Milner's evidence in terms of screening treatments. It is also appropriate for the west-facing rear wall to be treated with some translucent glazed openings, as we have discussed above.

104. At the conclusion of the Hearing we indicated that we would reserve costs. Our order reflects that and any application for costs would be the subject of further proceedings.

105. We have carefully considered the proposal before us.

106. We conclude that the proposal would achieve a number of the positive outcomes sought by the Darebin Planning Scheme. The height and mass of the upper levels of the High Street building are our only concerns in relation to this Application as we are comfortable with the Elm Street building in most respects. Our concerns with the High Street building can be addressed by permit condition.

107. Other minor modifications to both buildings can also be addressed through revisions to the current plans.

108. We are also satisfied with the volume of parking that is proposed to be provided on-site and that traffic and parking impacts are within acceptable levels of change for this commercial precinct even when taking acknowledging that there would be some impacts on the adjacent residential area.

For the above reasons, we allow the Application for Review in part and will order that the decision of the Responsible Authority be varied.