1. It is relevant to note that the disputed condition was not included on the permit in accordance with the recommendation of the Council's planning officers. Indeed, the officers were supportive of the proposed six-storey height. Their report to the Council addresses this height, finding that it is acceptable, in the following manner:

The overall height of 6 storeys (20 metres) is one storey (2 metres) respectively above that identified in the Brunswick Structure Plan. The 6 storey component is setback 6 metres from the Lygon Street frontage. Sightline diagrams and perspective drawings provided by the applicant demonstrate that this variation sought in the building setbacks and heights, which are not mandatory controls, will not dominate the surrounding neighbourhood or the Lygon Street streetscape. The building demonstrates a good balance of promoting the podium level to Lygon Street and recessing the taller elements of the building. This is considered to meet the objectives of the Brunswick Structure Plan of reinforcing the importance of the Lygon Street streetscape, whilst promoting higher density.

1. That being the case, little or no guidance can be obtained from the Council report, or from the minutes of the Council's meeting, to explain why the Council decided to require the deletion of the top floor. The submissions put on behalf of the Council were:
   • The Council is not being unreasonable in seeking a reduction of the height as it is willing to support a development of five storeys in accordance with the Structure Plan while at the same time supporting a number of variations to the proposal's requirements in respect of the podium setback, car parking and loading bay facilities.
   • There is no sound planning reason why the proposed development should be permitted to exceed the maximum height specified in the Structure Plan.
   • No evidence has been provided to suggest that the deletion of the 5th level will compromise the attainment of policies or that the design of the building would be compromised.
   • The proposed five-storey height is generous given the site context.
   • A six-storey building is not appropriate on this site having regard to its narrow width. It would appear as an overly dominant and discordant element in the streetscape, and would have a poor interface with the adjacent properties.
2. The Council's submissions were supported by Mr Long and Mr Merrett, both owners of residential properties to the west, on the other side of the Right-of-Way. Both expressed concerns regarding the proposed six-storey height. In their view, a lower building would achieve a more responsive outcome to the site's context. Although preferring a lower height than five-storeys, Mr Long accepts that that height is consistent with the Structure Plan, which has been adopted by the Council. He considers that the height is disproportionate to the site's width and that the top floor will be unduly prominent. Mr Long also submitted that the size of the roof area reduces the ability of the development to incorporate Environmentally Sustainable Design measures (such as solar panels and rainwater harvesting). Lastly, he considers that the development will have an unreasonable shadow impact on his property. Mr Merrett agrees that the building height should be reduced but considers that this would have been better achieved by removing one of the lower levels, to avoid the creation of a 'block-like' appearance.
3. In supporting the deletion of the condition, the Applicant submitted:
   • The relevant test is not whether the proposal represents an ideal outcome. The Tribunal needs to be satisfied that it is an acceptable outcome having regard to the relevant considerations under the planning scheme.
   • The policy setting encourages significant change in this location.
   • A six-storey development has been approved by the Tribunal on the adjoining land to the north[4], and the proposal will sit comfortably with this. In that decision, the Tribunal commented that the Structure Plan:

...provides background information explaining the context within which a particular policy or provision has been framed. It is designed to guide, but not dictate, decision making.

• The proposal is only 2.02 metres higher than the maximum 18 metre height specified in the Structure Plan. In a streetscape sense, this additional height is irrelevant.
• The impact of the development on the amenity of the neighbouring residential properties is acceptable.
• The rear elevation is well articulated, and at a distance of 12 metres (being a position adjacent to the rear of the dwelling at 6 Stanley Street) only the upper most part of the top level will be visible. With a small increase in the setback, the top level will not be visible from this property.
• An acceptable level of on-site car parking is being provided. Although 7 dwellings would not have a car spaces (as compared with 4 if the 5th level were deleted), this was supported by the Council officers. In their report, the officers referred to the availability of public transport, the level of car ownership disclosed the Australian Bureau of Statistics figures and the provision of bicycle parking in support of the proposal.

Is the proposed six-storey height an acceptable response to the streetscape?

1. As outlined, this is a location where multi level development is encouraged and facilitated by the policies contained within the Planning Scheme. Council's support of this form of development is demonstrated by its decision to grant a permit, albeit subject to a reduction in height by one level. It appears to me from the submissions that the basis for the Council's decision in this respect is the non-compliance with the maximum height specified in the Structure Plan for this part of Lygon Street. I accept that the Structure Plan is relevant to my consideration for reasons that I set out earlier in these reasons. While the Structure Plan carries the weight of an adopted document, its weight within the context of this Application has been somewhat diminished by the expiry of the policy and DDO19 that previously gave the document recognition (and implementation support) within the Planning Scheme.
2. I observe that an objective of the Structure Plan is to guide development. It is clear that what is envisaged for this locality is development which does not exceed five storeys, or 18 metres, in height. The approval of the six-storey development to the north by the Tribunal was a decision made upon the facts and circumstances of that particular application and proposal. Undoubtedly, the decision would have been influenced by the design response. Nonetheless, it is relevant to note that the decision to allow six storeys was made at a time when Clause 22.15 and DDO19 formed part of the Planning Scheme. Arguably, this being the case, greater weight would have been given to the built form parameters of the Structure Plan than would be the case now, given the lapsing of these Planning Scheme provisions.
3. This is not to say that the Structure Plan should be ignored. It is an adopted strategic document that has a role to play in guiding development within the Activity Centre. The guidance that it provides in this instance is that buildings should not exceed a height of five storeys, also expressed as 18 metres. What is proposed here is a 20 metre high building, manifesting as a six-storeys. One question then becomes, is this an unacceptable response to the strategic vision for the Lygon Street corridor? My conclusion is that it is not.
4. In reaching this conclusion I consider that it is the height in metres, rather than the number of storeys, that is particularly relevant as this gives the tangible expression to the building's presence within the streetscape and broader context. In other words, it is the building's overall height that is of importance, not necessarily the number of storeys it accommodates. Commonly, when observing a streetscape, note is made of the overall scale and height of the building, and the effect this has on its environment, rather than the detail of the actual number of storeys contained within the structure.
5. I accept the Applicant's submission that the additional 2.0 metres of height will not render the building a dominant or unduly prominent element within the street. Over time, as the strategic vision for the Activity Centre is implemented and an increasing number of multi-level structures emerge, the development will sit comfortably within its context. I have not been persuaded that the reduction in height by two metres, in a building of this size, would make an appreciable difference to its presentation within, and impact on, the streetscape. In the short-term, the low-rise nature of surrounding buildings means that the building will be quite prominent. This is also partly attributable to the somewhat narrow nature of the lot, which potentially has the effect of marginally exaggerating its height. However, a 2.0 metre reduction in the height is unlikely to alter this.
6. All things considered, notwithstanding the development will rise 2.0 metres above the preferred height, my conclusion is that it is an acceptable response to the Lygon Street streetscape, and is consistent with the strategic vision for this part of the Activity Centre.

Will the proposed fifth floor result in an unacceptable impact on the amenity of the neighbouring residential properties?

1. The key amenity impacts on the neighbouring residential properties to the west are those of visual bulk and overshadowing.
2. The assessment of visual bulk in a context where an activity centre spine interfaces with a low rise residential area is invariably difficult and challenging. This is particularly so when the activity centre is a higher order one, where a significant level of change is envisaged. Here, there is the expectation that development on Lygon Street properties will rise to five storeys. I can only reasonably assume that this strategic decision has been made in the full knowledge that many of the sites interface with residential properties, albeit separated by a Right-of-Way. The Structure Plan, however, does not nominate rear setbacks for development in the Activity Centre. I was advised that this is different to what has occurred elsewhere.
3. I am therefore left with no guidance other than the somewhat general statement that development should be carefully designed to relate to adjacent scale. What this means is unclear; perhaps even more so in an environment where five-storey development will be located proximate to land that supports single-storey dwellings. While setbacks which increase with height are effective in reducing the visual bulk of a development, they cannot, of course, hide the significant overall building mass of a development of this scale.
4. Again, I have approached this assessment on the basis that what is required to achieve compliance with the Structure Plan is a 2.0 metre reduction in height. At its closest point, the western wall of the top floor will be set back 9.5 metres from the rear boundary of the Stanley Street properties (with the balcony projecting 3.4 metres into this setback). In terms of the residential property directly to the west, it is only from a position almost adjacent to the rear of the dwelling itself that the very top of the 5th floor will be visible. Of course, this is different from the oblique, where a far greater portion of the top level will be visible to the residential properties. However, the distance from the development from these sites is greater, and has the effect of reducing the visual impact. Although the balcony projects into the western setback of the top floor, it is an unroofed element which doesn't contribute to visual bulk. In the circumstances of this proposal, I do not consider that the visual impact of the 5th level on the amenity of the neighbouring residential land justifies the deletion of this floor. Again, in saying this, I bear in mind that the overall height is only 2.0 metres greater than what is envisaged by the Structure Plan.
5. I now turn to the matter of overshadowing. The relevant policy in respect of this issue is found at Clause 22.11-3.6. The Design Objectives of the policy are:

To ensure that neighbouring properties to development receive adequate daylight and sunlight.

To ensure that development allows good sun penetration to public spaces.

To recognise the different overshadowing constraints affecting development in commercial areas and development in residential areas.

1. The relevant Design Guideline in this instance is:

For development in a Business Zone or a Mixed Use Zone, at least 50% of adjacent residential private outdoor spaces and habitable room windows should receive a minimum of 5 hours direct sunlight between 9am and 3pm on 22 September each year. Scope for a maximum 25% additional shadow may be allowed for development with a connection to the street.

1. The shadow diagrams submitted with the planning application did not include the shadows cast by existing structures on the residential properties. It was therefore not possible to determine whether the above design guideline will be met by the proposed development. By Order dated 7 June 2012 I directed the Applicant to prepare shadow diagrams that incorporated the existing shadows on the residential properties. The diagrams were provided to the other parties for comment and responses were received from Mr Long and Mr Merrett.
2. The diagrams show that compliance with the design guideline will be achieved in respect to the shadow impact on the property at 6 Stanley Street.
3. There is some doubt as to whether extent of overshadowing of 4 Stanley Street complies with Clause 22.11-3.6. It is apparent that 50% of the open space area of this property will receive direct sunlight at 11.00am and 12 noon on 22 September. At 1.00pm 49.91% of the area will be in sunlight, and at 10.30am 49.62% of the area will receive sunlight. The Applicant's submission is that, given the marginal shortfall at 10.30am and 1.00pm, the property at 4 Stanley Street achieves compliance with the policy's '50% target' for 3½ hours.
4. In support of its case that the extent of overshadowing is acceptable, the Applicant referred to the statement in the Design Guideline which reads:

Scope for a maximum 25% additional shadow may be allowed for development with a connection to the street.

1. The Applicant considers that this means the area of secluded private open space in sunlight can be reduced to 25% in the nominated circumstance ie where the development has a connection to the street. In the Applicant's submission, if this were to be applied to the proposal, then compliance with the Design Guideline would be achieved, as at least 25% of the open space area of 4 Stanley Street is in sunlight for 5 hours between 9.00am and 3.00pm on 22 September.
2. Notwithstanding the foregoing, the Applicant provided modified shadow diagrams demonstrating that, by providing an increased western setback for the disputed top floor level, the shadows from this part of the development on No. 4 Stanley Street at 10.00am will fall within those cast by the level below, which has approval under the Permit. From 11.00am onwards, there is no shadow impact on this property.
3. The responses of Mr Long and Mr Merrett raised the following issues:
   • The calculation of the secluded private open space of 6 Stanley Street does not take into account that area beneath the rear verandah of that dwelling, nor does it consider the shadow from buildings on the adjoining land to the north, at 8 Stanley Street. As a consequence, rather than 60.65% of the open space being in sunlight at 2.00pm, it will be 48.42%.
   • If the verandah at 6 Stanley Street were included in the calculation of open space, then the percentage of the area in sunlight at 9.00am and 10.00am would increase.
   • The gazebo at 4 Stanley Street should be included as part of the open space area.
   • The statement referring to the connection to the street is interpreted as meaning where the minimum 50% guideline is not met, additional loss of sunlight may be permitted where the shadow falls on properties that are directly opposite the proposed development's connection to a street (in this case, Lygon Street).
4. It is not at all clear how the statement in the Design Guideline that refers to the scope for a maximum additional 25% shadow is to be interpreted and applied. I have to say that my task has not been assisted by the fact that the Council did not provide any comments in response to the revised shadow diagrams.
5. Consequently, due to this lack of clarity, there is real certainty as to whether the proposal meets the Design Guideline. I do not propose to embark on an exercise of attempting to interpret and apply the "maximum additional 25%" guideline. In the absence of further submissions, and potentially a further hearing, I am not satisfied that I have all the necessary information to make a finding as to whether the proposal meets (or qualifies for) this guideline with an adequate level of confidence. Rather, in the circumstances, I consider that the preferable way forward is to consider whether the Design Objectives are met.
6. The relevant objective is to ensure that neighbouring properties receive adequate daylight and sunlight. I am not persuaded that the level of overshadowing of No. 4 Stanley Street meets this objective. It is a relatively small space of 58 square metres that is presently affected by the shadows from the dwelling and outbuildings on that land. This will be exacerbated by the development at 9.00am and 10.00am, with the shadows reducing to an acceptable level from 11.00am onwards. I have concluded that the development should be modified by increasing the western setback of the top floor to ensure that the shadow cast by this component of the building on the secluded private open space area of No. 4 Stanley Street at 10.00am is contained within that cast by the fourth floor level. This is generally consistent with the Applicant's suggested modification. With this change, bearing in mind that the permit approves the development at five storeys, I am satisfied that the neighbouring residential properties will receive adequate sunlight.

1. For these reasons, I have determined to vary the Council's decision by requiring a modification to Condition No. 1 to reduce the extent of overshadowing from the fifth floor level.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[3] Clause 11.01, 11.04, 21.04, 21.05, 22.02

[4] 457-459 Lygon Street Pty Ltd v Moreland CC [2010] VCAT 2115