Claremont Street Project Pty Ltd, Mr Frank Taraborrelli

David Earle Architects v Stonnington CC [2012] VCAT 83

1. The decision of the responsible authority in relation to permit application no. 0991/10 is affirmed. No permit is granted

• Mr Trevor Hardingham, traffic engineer, O'Brien Traffic
• Mr Mark Sheppard, urban designer, David Lock Associates

• Mr Tim Biles, town planning consultant, Message Consultants
• Mr Jason Walsh, traffic engineer, Traffix Group
• Mr Chris Goss, architect, Orbit Visualisation

To construct an eighteen storey building plus roof terrace and lift overrun. The building would have a height of 61 metres (63.5 AHD).

The building would comprise lobby and two offices on the ground floor and 84 apartments above. The apartments would comprise 34 single bedroom dwellings, 11 dwellings each with one bedroom and a study, and 39 dwellings each with two bedrooms.

All dwellings would have bedroom(s), amenities, kitchen and living room. All dwellings would have a balcony of 8 square metres orientated to the east or west.

39 car parking spaces are to be provided in a Hercules car stacker system with two way access from the rear right-of-way.

Application under section 79 of the Planning and Environment Act 1987

Clause 32.04-5 (two or more dwellings on a lot in MUZ)

Clause 32.04-7 (buildings and works for a section 2 use in MUZ)

Clauses 10, 11.01, 11.04, 15.01, 15.02, 16.01, 17.01, 18.01, 18.02, 19.03, 21, 22.02, 22.05, 22.06, 22.09, 22.12, 22.13, 22.17, 52.06, 52.34, 52.35, 52.36 and 65

The review site is located on the west side of Claremont Street, approximately 300 metres north of Toorak Road, and 35 metres south of the entry to Melbourne High School. The site is rectangular in shape, with a frontage of 12.19 metres, a depth of 38.71 metres and an area of 472 square metres. The west boundary of the land abuts a right-of-way with a width of 3.09 metres that provides access to land fronting both Claremont Street and Yarra Street.

The site is occupied by a three storey office building with vehicle access from Claremont Street. The land is flat and is subject to inundation.

The land is within the Forrest Hill precinct and intensive redevelopment is underway. Existing one to three storey industrial and commercial buildings are being replaced with multi level apartment buildings, including on land adjoining to the south, the east side of Claremont Street and to the west, facing Yarra Street.

Melbourne High School and the Yarra River are located to the north. Toorak Road and Chapel Street shopping centres are proximate to the south. Trains and trams are also proximate to the site.

We inspected the site and its environs on 20 October 2011. The parties did not accompany the inspection.

Stockland Developments Pty Ltd v Stonnington CC [2009] VCAT 2179

Icon Developments Australia Pty Ltd v Stonnington CC [2009] VCAT 2574

Daly Street Developments Pty Ltd v Stonnington CC [2010] VCAT 1705

Chicago Developments Pty Ltd v Stonnington CC [2011] VCAT 995

1. David Earle Architects has designed an eighteen storey building to be located within the Forrest Hill precinct in South Yarra. The precinct has been identified as an area of substantial change. Many multi level apartment buildings have been completed within the precinct and several apartment buildings are under construction to the north and east of the review site.
2. In June 2011, Stonnington City Council determined to refuse to grant the application. Council considered the development to be excessive, the setbacks inadequate and the north and east facades to be unduly dominant. It also considered the traffic arrangements to be unsatisfactory.
3. Claremont Street Project Pty Ltd is developing an apartment building on the adjoining land to the south and this building is very close to completion. They consider the proposed development would have unreasonable impacts on the amenity of the northern most apartments and a rooftop terrace in their building. They support council's assessment of the traffic arrangements.
4. Mr Frank Taraborrelli owns at No. 17 Yarra Street on the west side of the right-of-way, directly opposite the review site. He considers the height of the development to be excessive, its setbacks to the right-of-way to be inadequate and its traffic arrangements flawed. He submits the proposed setbacks will compromise the amenity of future adjacent residential developments.
5. The permit applicant contests these grounds of refusal and considers the development responds to planning policy, to be well designed and the car access arrangements to be acceptable.
6. The key issues that we must determine in this matter are:
   • Would the proposed height and setbacks be consistent with the planning policy framework and respond to its context?
   • Would the design make a positive contribution to Claremont Street and the Forrest Hill precinct?
   • Would the development adequately provide for its traffic car parking?
   • Would the development provide satisfactory amenity for its future residents?
7. We must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Stonnington Planning Scheme, we have decided to affirm the decision of the responsible authority and direct that no permit be granted. Our reasons follow.

Would the proposed height and setbacks be consistent with the planning policy framework and respond to its context?

1. The building would have a height of 61 metres (63.5 AHD)[2] comprising eighteen floors in a podium/tower typology, be constructed to the north and south boundaries (except for a light court on each side) and be set back from the front (east) and rear (west) boundaries.
2. The ground, first and second floors of the building would be constructed to the Claremont Street front boundary, forming a podium with a street wall height up to 12.85 metres. The street wall would have a visually strong façade treatment comprising the front balcony walls to the dwellings on levels one, two and three.
3. Facing the rear lane, the podium includes the level four carpark taking its height 17.90 metres not including the glass balustrade above it.
4. The tower of the building comprises levels four to fifteen at the front, and levels five to fifteen at the rear. At each level, three dwellings face Claremont Street and three dwellings face the right-of-way. At the front, the northernmost dwelling would be set back 0.35 metres to the balcony and 2.3 metres to the dwelling, the middle dwelling 1.15 metres to the balcony and 3.1 metres to the dwelling, and the southernmost dwelling 1.95 metres to the balcony and 3.9 metres to the dwelling. Facing the rear lane, the two northern dwellings would be set back 1.05 metres to the balconies and 3.0 metres to the dwellings. The southmost dwelling would be set back 2.0 metres and 3.95 metres respectively.
5. Levels sixteen and seventeen comprise the top of the building. These two levels would be set back 8.1 metres from Claremont Street with the balconies variably set back. Setbacks to the rear right-of-way would be similar to the floors below. The north wall is not set back and the south is set back between 2.93 and 4.053 metres, though the stair is on the boundary.
6. The top of level fifteen would be at RL 54.45 metres, or 51.95 metres high, 4.05 metres above the roof deck of 45 Claremont Street adjoining to the south, known as 'See'. The overall building height including levels sixteen and seventeen would be 61 metres, which would be 10.6 metres above See's roof deck[3].

What guidance is provided by the planning policy framework?

1. All parties agreed intensive development is clearly contemplated and consistent with the State planning policy framework. The land is located within a principal activity centre where intensive residential development is encouraged[4]. The site is proximate to the principal public transport network, regional recreation facilities including the Yarra River, education, employment and health facilities in Melbourne's CBD and inner suburbs. It is also within walking distance to the shops, cafes, nightclubs and entertainment available in Toorak Road and Chapel Street and their environs. We consider development such as this would provide net community benefits and contribute to more sustainable development by broadening housing choices, supporting businesses in activity centres and enabling greater use of walking, cycling and public transport. It would also contribute to reducing Melbourne's outward growth.
2. The review site is within the Forrest Hill precinct of the Prahran/South Yarra principal activity centre. Use and development are guided by schedule 8 to the design and development overlay (DDO8), local policies (clauses 22.17 and 22.19) and the Forrest Hill Structure Plan (2005) that is a reference document in the scheme. Clause 15.01 and the Guidelines for Higher Density Residential Development (2004) are also highly relevant.
3. The vision for the Forrest Hill precinct is:

A vibrant, higher density mixed use precinct that makes a significant contribution towards providing housing and employment opportunities in the Prahran South Yarra principal activity centre and the broader City of Stonnington. New development will embody design excellence, make a positive contribution to the appearance, amenity and safety of the public domain, foster sustainable transport outcomes and improve pedestrian access and connectivity[5].

1. The precinct is divided into sub-precincts. The vision for Claremont Street is:

Contemporary, mixed use development that creates diverse opportunities for living and working, with greater emphasis on retail and commercial uses towards Toorak Road end, changing to a greater residential focus towards the northern end within the mixed use zone[6].

1. The vision is to be enacted through mixed use, intensive developments. A building typology is encouraged that comprises 7.5 metre to 12 metre podiums built to the street edge, with towers above to maintain access to sunlight and sky views. Building heights are to vary throughout Forrest Hill, with buildings in Claremont Street being "medium rise" with a preferred height of 50 metres.
2. The schedule to DDO8 and local policies include design objectives that generally encourage:
   • upper level setbacks where necessary to minimise off-site amenity impacts;
   • avoiding unreasonable visual bulk when viewed from surrounding areas by ensuring appropriate scale, form and articulation;
   • contributing to equitable and reasonable standards of privacy, daylight, solar access, natural ventilation and outlook within buildings;
   • having reasonable solar access and privacy available to all spaces within residential units[7];
   • not dominating the open spaces of Melbourne High School;
   • contributing to a human scale along Claremont Street[8];
   • design excellence;
   • active street frontages that have access to sunlight.

1. The preferred height in Claremont Street sub-precinct is 50 metres, and this proposal would exceed this by 11 metres. It would be higher than No. 45 Claremont Street by slightly more than that amount. As the building is on the north side of No. 45 Claremont Street, it would overshadow and obstruct the presently generous views from the communal roof garden.
2. The responsible authority, the respondents and Mr Biles thought there were no 'special circumstances' to exceed the preferred height, or to put it another way, there is no 'plausible reason' to exceed the preferred height. The permit applicant opined the additional height would have little impact on adjoining development or Melbourne High School, it would be consistent with other approvals in Forrest Hill and be imperceptible in longer distance views of the precinct.
3. The Planning Panel that reviewed the statutory planning framework for this area concluded that heights should be preferred rather than mandatory. This would encourage developments to be site and context responsive rather than responding to prescriptive rules. We note the Panel also supported an approach that heights should vary through the Forrest Hill precinct, and some sub-precincts would have taller built form than others. The preferred heights, whilst not mandatory, would guide the appropriate heights of new buildings. We consider the inclusion of preferred heights indicates the Forrest Hill area is not a "free for all" and the preferred heights are in place to guide development in an orderly manner and to set expectations for all parties. They should not be exceeded without justification.
4. We are not persuaded there is reasonable justification for this development to exceed the preferred height. The permit applicant was unable to provide any reasons for the greater height, suggesting to us the design approach has not paid sufficient attention to context or the planning framework. We do not think flexibility and performance based planning means the guidance in the scheme is to be disregarded without reason.
5. We acknowledge there are a number of sites where the approved development exceeds the preferred heights, including approvals by this Tribunal. Mr Connor and Mr Cicero referred to the decision of this Tribunal in Daly Street Developments Pty Ltd v Stonnington CC[9] where the preferred 50 metre height was exceeded. In that decision, the Tribunal concluded that, on that much larger consolidated site, the architect had skilfully responded to its context by utilising transitional articulated elements in a visually logical manner and further, there was no off-site amenity impact in exceeding the preferred height. That review site is much larger and the building will stand on its own visually. Hence we consider its context to be different, its design response was shown to be appropriate and any precedent set to be one of designing to the immediate context. Reference was also made to the taller building under construction at No. 50-54 Claremont Street. Again, this is a much larger consolidated site with visual independence.
6. We think planning policy strongly encourages the height of this building to be consistent with the preferred height and responsive to its context. This review site has a constrained context. It is a small, narrow lot between two other small sites. A building of nearly 50 metres height is present on the southern boundary. It is not a large site with visual independence on which a new building can be visually blended into the skyline. We think that, at 61 metres high and being an additional 11 metres high to its immediate neighbour, its height relative to its neighbour would be discordant.
7. Mr Biles opined the difference in height is significant and unacceptable as it would have adverse impacts on the amenity of the roof terrace. Shadow diagrams indicate that over half the roof terrace area on the western side of the roof of No. 45 Claremont Street would be overshadowed in the morning and early afternoon by the proposed building. Mr Cicero submitted the extent of overshadowing would be reasonable as few residents would use the rooftop when it would be overshadowed. He submitted the relevant amenity test in the DDO8 is amenity within dwellings rather impacts on balconies or communal spaces.
8. On balance, we concur with Mr Biles and think his expert advice better reflects the entirety of policies and reference documents in the planning scheme. We give particular weight to design suggestions 2.6.3 and 2.6.4 in the Guidelines for Higher Density Residential Development (2004) and design objectives and standards in the Forrest Hill Structure Plan (2005) that encourage communal spaces with 'optimised' access to sunlight. We think the entirety of policies and reference documents provides a consistent emphasis that buildings should be cognisant of their neighbours and the public realm, and be designed to minimise their impacts on these spaces. Design is not to be completed without such consideration.
9. This precinct already has an intense built form and residents of the apartments in No. 45 Claremont Street will have limited views and limited access to sunlight from their apartments. Their private balconies are very small. The amenity of the rooftop communal area is important to augment the limited amenity of their apartments. They can enjoy this greater amenity from the rooftop. It is more about the balancing of these points, rather than just sun and shade. We think weight should be given to reasonable sharing of development opportunities and designing to enhance the amenity of all residents in the vicinity of the review site, not only those of the subject development.
10. We agree with the permit applicant and Mr Sheppard that from medium and longer distances the additional height of 11 metres would have little impact or effect on the emerging character of the precinct. We also agree the additional height would have little adverse impact on the open spaces of Melbourne High School. It would appear as another apartment building with a height generally consistent with other similar buildings. If developments of similar and greater height are constructed as approved, an apartment building of 61 metres would be little different to an apartment building of 50 metres.
11. It is not the longer views that are important here, it is its immediate context. We think the proposed design assumes it is in an unconstrained context, but it has an abutting neighbour and a streetscape with an emerging character that would be impacted.
12. We were not provided with any compelling reasons for this building to exceed the preferred 50 metre height limit. We think it is constrained by its particular context and has failed to respond as required by the planning policy framework. We are not persuaded it should exceed the preferred height.

Would the setbacks to Claremont Street be acceptable?

1. It is proposed to build the ground floor to the Claremont Street boundary. With the raised floor levels required to meet Melbourne Water's requirements, the façade to the street would comprise a street wall with a height of 4.75 metres. Levels one and two and the balconies to level three above create a strong podium. The "tower" form is created by the front façade at levels four to fifteen inclusive, with staggered setbacks as previously described.
2. We think the planning framework strongly encourages buildings in Forrest Hill precinct to comprise a podium and tower form. References to the preferred built form include:
   • a higher density precinct where new buildings would have upper levels set back where necessary to minimise off-site impacts (DDO8);
   • providing tall, slender building forms rather than bulky, monolithic buildings in order to minimise visual bulk (DDO8);
   • creating a well defined street wall to clearly delineate the public realm and complement a high level of street activity (DDO8);
   • creating a new precinct character based on a built form typology of podiums built to the street edge with tower elements set back to maintain access and sky views (clause 22.17).
3. Indicative illustrations of preferred built form in the Forrest Hill Structure Plan show podiums extending to all boundaries and towers above with front and side setbacks.
4. Given the generous setbacks and alignment of the balconies to the dwellings at No. 45 Claremont Street, the review building would extend between 2 metres and 4.8 metres closer to Claremont Street than those balconies.
5. The responsible authority and respondents had two main objections to the proposed setbacks to Claremont Street. Firstly they would be discordant in the streetscape, and secondly they would have adverse impacts on the amenity of adjoining dwellings in the See apartment building to the south.
6. Mr Biles opined the difference in setbacks between No. 45 Claremont Street and this proposal viewed along the street would be 'discordant' and 'awkward'. From the north, the lesser setback of this proposal at its north-east corner would mask or screen the setbacks of No. 45 Claremont Street, creating an incongruous gap in the streetscape. From the south the dominant feature would be a strong building edge of No. 47 Claremont Street that projects significantly beyond the leading edges of No. 45 Claremont Street. He thought greater setbacks should be provided to No. 47 Claremont Street to create a more integrated and coherent streetscape.
7. Mr Sheppard opined the variance would make Claremont Street _'interesting and attractiv_e'. He opined the residents of No. 45 Claremont Street 'could not reasonably expect these views (to the north-east) to remain in perpetuity over land designated for significant development'. He thought the lesser setbacks to No. 47 Claremont Street relative to the setbacks provided for No. 45 Claremont Street to be reasonable.
8. Member Martin considered a similar matter in respect of a development at No. 10 Claremont Street. He noted that whilst upper level setbacks are not prescribed in the DDO8, he thought it preferable for neighbourhood character outcomes that one building should avoid jutting out in front of an adjoining building. He thought the lack of specific setbacks did not impose a 'free for all' as the references to urban design and built form make clear a podium/tower form is preferred and that built form relies on the upper levels being set back behind the lower podium.
9. Member Martin found that requiring a setback of 4.8 metres would be 'overkill' given the generally more modest upper level setbacks emerging on Claremont Street and the relatively narrow frontage of that review site at 14.6 metres, similar to this review site. He found that balancing all the considerations, including a description of the setbacks emerging on Claremont Street, that the upper levels of the proposed development should be set back 3.1 metres, less than the adjoining building.
10. Member Martin attached a summary of front setbacks for buildings in Claremont Street. Sites with wide frontages such as 3-9 Claremont Street and 16-20 Claremont Street provide much greater setbacks to the upper levels than would be provided in this proposal. Upper level setbacks extend to 6.12 metres to balcony and 9.6 metres and greater to the front wall. On sites with smaller frontages, setbacks are in the range of 2.6 metres to the balcony and up to 4.75 metres to the front wall. The building at No. 50 Claremont Street opposite the review site has setbacks from 1.87 metres to 3.37 metres to the balcony and 3.37 metres to5.27 metres to the front walls.
11. We agree with Member Martin that it is not necessary or sought by the planning framework for all buildings along Claremont Street to have uniform setbacks. However, we think the planning policy framework and the emerging built form described by Member Martin requires new buildings to contribute to and reflect a unity and coherence and avoid sharp variances.
12. The See building has setbacks that are generous and atypical in its context and we do not believe that such generosity should form a precedent. We note the respondents did not seek matching setbacks, but greater setbacks that would have some relation to the See building. Mr Biles provided figures 7 and 8 in his evidence that illustrated how the upper floors could be further set back without compromising yield or residential amenity and we found these figures useful balancing the various considerations.
13. We acknowledge the review building has been designed to angle away from See in an effort to provide a transition in the setbacks, but this is not enough. The setbacks to the north are so minor that the tower form merges with the podium, and this is contrary to the preferred podium and tower form sought by DDO8 and the structure plan. The solid masonry composition of the balcony walls and the heavy balconies above the podium too, inhibit the notion of the street wall and do not enhance the openness of the street. Accordingly, it does not satisfy the visual and spatial objectives.
14. Cantilevering lighter balconies from the main walls would be a better response. An option of this type was offered by Mr Cicero in a hand drawn sketch that he tabled during the hearing. We think this approach will improve the design, but it is not sufficient on its own, and in its sketch form, fails to resolve the issue. It needs to be considered as part of a redesign of the building to address the minimal setbacks and the solidity of the gridded elements, with closer attention given to the planning scheme objectives. It should also have been considered well before the hearing, as we understand from the submissions this issue had been well ventilated by the respondent and responsible authority for some time prior to the hearing.

1. The planning scheme is largely silent on the built form and setbacks to rights-of-way in the Forrest Hill precinct. The Guidelines for Higher Density Residential Development (2004) encourages spacing between buildings to allow access to private open spaces and to provide outlook, daylight, access and privacy for residents. We therefore think the consideration of setbacks need not be considered in the podium and tower context as for the Claremont Street frontage, but in the context of achieving reasonable amenity for future residents to both sides and the public realm.
2. We acknowledge the amenity of dwellings facing the right-of-way will be of a lesser quality than those facing Claremont Street, and this is more reason to ensure that their ultimate amenity is acceptable. West facing apartments that may ultimately interface with tall, imposing buildings fronting Yarra Street should, in our view, be designed to enjoy acceptable privacy and access to daylight. Again, it is about reasonable sharing of opportunity and amenity.
3. No.45 Claremont Street to the south has balconies and dwellings facing west and north-west. These balconies are set back from 2 metres to 3 metres to the leading balustrade corner and 3.6 metres to 6.4 metres to the walls of the dwellings. An alternate approach is utilised in an application to develop No. 18 Yarra Street opposite (lodged with council at the time of the hearing). This proposal would be 76 metres high and be built to the laneway.
4. Mr Biles opined separating the majority of outdoor balcony spaces by 9 metres is desirable to provide adequate amenity, requiring the balustrades to be set back 2 to 3 metres and walls to dwellings set back 5 to 6 metres from the respective boundaries (consistent with No. 45 Claremont Street). This is not achieved by this proposal. Mr Sheppard opined a lesser separation would be acceptable provided internal living areas are separated by 9 metres, although balconies can protrude within this separation space.
5. We think a minimum separation of 7 metres between the balustrades of dwellings and 9 metres between the external walls to habitable rooms is the preferable separation. This removes the need for screening that increases visual bulk and encloses the habitable spaces within the dwellings. Greater separation at the upper levels increases access to light and sky views for those below. If this approach is not established, the ultimate outcome for residents facing the lane will be bleak.

Would the design make a positive contribution to Claremont Street and to the Forrest Hill precinct?

1. This proposal would be a solid building from bottom to top, featuring stepped and gridded masonry-like elements. It has minimal setbacks, and presents as a single tower rather than podium/tower. The northern façade is of Alucobond panels, articulated and coloured in a Mondrian pattern and this facade has north facing windows in it, on the boundary. At street level, the yellow stepped façade panels meet the footpath to encapsulate the services cupboards all under a simple brown canopy.
2. The top of the building is brightly coloured and it forms a continuation of the north and west façades. It is recessive from the south and east facades.

Is the design of the Claremont Street frontage and street wall acceptable?

1. We acknowledge there is a tension between the objectives of the DDO8 to provide active and attractive street frontages and the requirements of the LSIO to minimise the inundation. In simple terms, the LSIO calls for a raised floor level whilst DDO8 seeks a well defined street wall to clearly delineate the public realm and support a high level of street activity.
2. The solution presented to us features a canopy and yellow gridded panel to enliven the public realm and to diminish the effect of the booster and gas services cupboards facing the pedestrian realm. We think this solution is formulaic and over simplistic. We believe this does not make sufficient effort to balance the competing objectives and does not achieve excellence in architecture and urban design sought by DDO8. The street level is a very important aspect of any building and, in any redesign, it should be further addressed.
3. The drawings for the See building were tabled at the hearing and we noted with interest how the designer had dealt with these street level issues and service enclosure requirements in a more sensitive manner that has greater architectural merit. We also observed many examples within the precinct where the street levels have been resolved in forms superior to this proposal.

Would the development adequately provide for its traffic and car parking?

1. It is proposed to provide 39 car parking spaces for residents of the apartments, with no spaces for visitors, staff or customers. The provision of parking spaces would be at the rate of 0.46 spaces per dwelling. This would be less than the two spaces per dwelling required under clause 52.06 and less than the one space per dwelling required under clause 55.03-11 for residential developments up to three storeys.
2. The permit applicant and the responsible authority agreed the provision of parking at this lesser rate is satisfactory. A reduced rate was supported by expert traffic evidence, on the basis that car ownership rates would be likely to be relatively low given the site's proximity to public transport, regional trails and facilities. We agree and are satisfied with the rate of 0.46 spaces per dwelling.
3. We are not persuaded the proposed access is acceptable. It is proposed that vehicles would have two-way access and egress to the site via the 3.05 metre wide right-of-way at its rear.
4. The right-of-way presently provides two way access to approximately 36 car spaces in various buildings, and carries in the order of 14 inward movements in the morning peak and 11 movements outward (and one inbound) in the afternoon peak. The total daily movements at present along the right-of-way would be in the order of 140 movements per day. We understand that, apart from existing uses, no other site has been built or approved with two-way, right-of-way access and, if this proposal was to be approved, it would be the only one.
5. Mr Walsh and Mr Hardingham provided conflicting evidence as to the number of vehicle movement that could be expected in and out of the right-of-way. Mr Hardingham relied on probability calculations to estimate the likelihood that the laneway could operate with two-way traffic movements. He did not include the likely traffic movement generated by other approved and potentially approved developments. Under cross-examination by Mr Finanzio about his methods of calculation and his analysis, he conceded that he had not factored unbuilt, unapproved or potential development into his calculations. He also conceded that his probability calculations understated the likelihood of vehicles meeting in opposite directions within the right-of-way.
6. The responsible authority, Mr Taraborrelli and Mr Walsh opined that a two-way arrangement would lead to an immediate increase in traffic conflict that would worsen as further development occurs. Traffic conflict within the right-of-way would be further compounded by the operation of the Hercules car stacker which might require queuing into the right-of-way. Mr Taraborrelli also noted that from time to time trucks unload in the right-of-way, blocking it for up to 30 minutes at a time.
7. The responsible authority and the respondents opined access to this and other sites should be via a one-way network using both Claremont Street and the right-of-way, consistent with other approvals.
8. The Tribunal has previously expressed caution regarding the continued increase of vehicle movements in this right-of-way arising from intense abutting development, urging council to 'monitor the laneway usage to ascertain the appropriate time to change it to egress only'[10].
9. We think it is inevitable the development on adjoining lots will increase traffic levels beyond the functional capacity of a 3 metres wide right-of-way carrying two-way traffic. The responsible authority has several options to manage the additional traffic, including creation of a through link, widening, requiring additional setbacks at ground level to provide passing bays and making it one-way. We understand a preferred strategy has not been "locked in" but understand Council prefers the one-way option. Hence development of this site should leave open the option of converting the right-of-way to one-way traffic. This option requires access to this review site to include access from Claremont Street. Approval of this development relying on two-way access to this site only from the right-of-way, with no vehicular access to Claremont Street, would eliminate Council's preferred option.
10. If this development was approved with two-way access via the lane, it would be contrary to all other approvals in Claremont Street to date. The precedent appears to have been set and, whilst existing uses will endure some discomfort in the short term, the one-way system ensures that cars will be able to circulate through the area as new developments are completed. We think any redesign of this proposal needs to include access from both Claremont Street and the right-of-way, and this requires significant modification to the appearance and internal configuration of the proposed building.

Would the development provide satisfactory amenity for its future residents?

1. The general arrangement of the building is well conceived. All dwellings would have convenient access to the lift foyer. Waste, storage and services appear to be adequately provided. The rooftop terrace would be a convenient and attractive place to entertain and enjoy the ambience of Melbourne's inner city. It would augment the amenity provided by relatively small dwellings.
2. There are however several areas where we believe the design of the building could be improved to provide better internal amenity for the residents.
3. The development comprises dwellings with a mix of one bedroom, one bedroom plus study and two bedroom dwellings, with six dwellings on most floors. Up to level 4, all dwellings are one bedroom. From levels 5 to 15, there are 66 dwellings, comprising 22 dwellings with one bedroom, 11 dwellings with one bed plus study and 33 dwellings with two bedrooms. Six, two bedroom dwellings are on levels 16 and 17, and in total there would be 34 one bed, 11 one bed plus study and 39 two bed dwellings.
4. The one bed dwellings are typical of what appears to be the new breed of compact one bed apartment style dwellings. These comprise a long thin arrangement where the living spaces open onto a balcony and the bedroom at the rear of the apartment relies on borrowed light and ventilation from the living areas. The bedroom can be opened or closed as required by the residents without compromise to amenity or privacy because they are likely to be occupied by a single person or a couple. In general we think this design is acceptable, consistent with the findings of other Tribunals.
5. The two bed dwellings are more complex. These could be occupied by a small family or shared by singles or couples co-habituating rather than in relationships. Most bedrooms in the two bedroom dwellings do not. Furthermore, the studies in the one bedroom plus study dwellings could be used as bedrooms and these rooms have no natural light or ventilation.
6. Including the dwellings with studies, 47 out of 84 dwellings will rely on borrowed light and ventilation to one or both bedrooms. This comprises 56% of the dwellings. For a family with young children, this arrangement may work but, in shared accommodation, retiring to one's bedroom for privacy, to work or to sleep would often be compromised as the rooms can only be ventilated by opening the bedroom door or ventilation panels. We do not see this as acceptable amenity for residents.
7. We do not support the inclusion of windows on the north façade. The permit applicant proposes that these windows would provide immediate benefit to residents but these windows could be removed when the site to the north is developed, all subject to a Section 173 Agreement.
8. We note that, apart from levels 3, 16 and 17, these windows provide light and possibly ventilation to 22 bedrooms over levels 4 to 15. Whilst the amenity of these 22 bedrooms may be adequate in the short term, this is almost certain to be removed over time. We think that offering future residents "false amenity" that would be likely to be removed by adjoining development would be short sighted.
9. Mr Biles suggested that the southern light well should be aligned with the northern light well of See. We agree. Whilst the planning scheme is not prescriptive on such issues, we believe it is common sense to capitalise on such opportunities to maximise the internal amenity of the future residents. It is another example of the benefits of designing to the context of the site rather than viewing it as an island site.

1. It follows from the above reasons that it is our conclusion that the decision of the responsible authority should be affirmed and no permit be granted.
2. Our decision requires changes to the building envelope including the reduction of height, increased setbacks and changed traffic arrangements. These changes will consequentially enable the designer to review the amenity and the façade issues we have also identified.
3. Mr Cicero requested the Tribunal to approve this building and include conditions to overcome the issues that were tabled during the hearing. He made clear the permit applicant was willing to respond to any concerns we may have and modify the building.
4. Whilst it is sometimes possible for a specific improvements to be conditioned, this opportunity is limited to improvements that are specific and that do not transition the development to something new. We think the changes identified in our decision will require a thorough review of the way this building is planned, the on and off-site amenity impacts, how it looks and importantly how it interfaces with its neighbours. This building is not acceptable in the form presented to us and it requires comprehensive review.

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

1. [2] Typically, we will use the ground level of RL 2.5m at the entry to determine heights where written dimensions are not provided.

[3] The height of the roof deck handrail of the See building is approximately 48.6 metres.

[6] Schedule 8 to the design and development overlay

[8] Schedule 8 to the design and development overlay

[9] [2010] VCAT 1705

[10] Icon Developments Australia Pty Ltd v Stonnington CC [2009] VCAT 2574