Victorian Civil and Administrative Tribunal|2008-10-15|Before: Mr J

Deal Corporation Pty Ltd v Moreland CC [2008] VCAT 2121 (15 October 2008)

Section 79 of the Planning and Environment Act 1987; Moreland Planning Scheme; Business 2 Zone; Six Storey Building; Townhouses; Scale; Overlooking; Residential Interface; Traffic; Parking; Internal Amenity.

J Mussawir, T O'Lincoln, T Hannaford, J Bennett, D Nemec, J & I Woodcock, M Cuatt, J Phiddian, I Rose, S Milke, R Wolfe, J Ren, L Whiting, T Fullerton, H Judd, L McDonald

No. 201 - 207 Albert Street and No. 2 - 12 Beith Street, Brunswick

Deal Corporation Pty Ltd v Moreland CC [2008] VCAT 2121

In permit application no. MPS/2008/30, the decision of the Responsible Authority is set aside. A permit is granted and must be issued. The permit relates to the land at No. 201 - 207 Albert Street and No. 2 - 12 Beith Street, Brunswick. The permit allows:
- development of a five storey building with basement for offices and up to 61 dwellings;
- use and development for food and drink premises (café);
- development of 20 townhouses;
- a reduction in car parking;
- removal of an easement;

The permit is subject to the conditions contained in Appendix 1 to these reasons.

Mr J Cicero, solicitor of Best Hooper. He called expert evidence from Mr J Govenlock, town planner; Mr M Sheppard, urban designer; and Mr J Walsh, traffic engineer.

Mr J Bennett, Ms M Cuatt, Mr I Woodcock and Mr R Wolfe in person and for Ms I Rose and Mr L McDonald.[1]

Construction of 72 dwellings (20 townhouses and 52 apartments in a six storey building) plus four offices and a 40 seat café or restaurant at the ground level of the apartment building. The mainly three bedroom townhouses would be in three east-west rows to the central and northern part of the site with the larger building to the southern section of the land. The apartment building would contain a mix of one and two bedroom units including some with one bedroom plus study or office. Basement and some ground level (enclosed) car parking for 127 vehicles and 38 bicycle parking spaces are proposed. Two rows of townhouses would have two car spaces (tandem layout) accessed from Beith Street. The third row of townhouses and units within the apartment building would have parking at grade or in a basement within the larger building. This parking area would also be accessed from Beith Street. A gym is at the third level of the apartment building.

Business 2 Zone, Environmental Audit Overlay and Design & Development Overlay (Schedule 8 - 191 - 199 & 201 - 207 Albert Street, Brunswick).

Clauses 11, 12, 14, 15.12, 16.02, 17.02, 18.02, 19.03, 21, 22.02, 22.05, 52.02, 52.06, 52.07, 52.34, 52.35, 52.36 & 65.

The review site is 5,000 square metres with frontages to Albert Street, Beith Street and Lobb Street. The land is vacant having previously been occupied by industrial/warehouse buildings with multiple undercroft parking areas. An industrial building is to the east of the site. To the south, on the opposite side of Albert Street, is a row of townhouses and Randazzo Park. The townhouses are double storey or have an attic style third level. To the west of the review site, on the opposite side of Beith Street, is the side of one single storey dwelling, its open space, another single storey dwelling and then several small scale commercial/industrial uses. To the north, on the northern side of Lobb Street, are several single storey dwellings and other commercial buildings. Beith Street is one-way while Albert Street is two way.

An inspection was undertaken on 1 October 2008 and another occurred mid-evening on 8 October 2008.

Deal Corporation lodged an application with the Moreland City Council for a mixed-use development on a former industrial site in Brunswick. The site has a long history over nearly nine years leading to its rezoning in December 2007.[2] The permit application proposes a multi-level mainly residential building with basement parking[3] as well as 20 townhouses. Four offices and a 40 seat café or restaurant are proposed at the ground floor of the apartment building fronting Albert Street and the Beith Street corner.
A review against the Council's failure to decide upon the application within the prescribed time was lodged by Deal Corporation.[4] The Council has since determined to support the proposal subject to conditions. It seeks changes to improve the internal amenity of some dwellings, address the potential for overlooking and deal with some design matters with respect to the ground level along Albert and Beith Streets.
Respondent Objectors have more substantial concerns about the scale and extent of the proposed development in terms of its visual impact, relationship to the existing and future character of the area, environmentally sustainable design, as well as additional traffic and parking within the area. Some also identify concerns about shadowing impacts on their dwellings particularly in winter, the potential for overlooking, and unreasonable visual bulk. Impacts on Randazzo Park have also been cited by Respondent Objectors. The Applicant challenges grounds opposing the proposal.
The Tribunal must decide whether to grant a permit and, if so, what conditions should apply. Having considered all submissions and evidence, assisted by our inspections, we will set aside the Council's decision and allow a modified form of the proposal for reasons that follow. In setting out our reasons, we do not recite all of the material tendered by the parties as all documents are retained on the Tribunal's file.

What is the planning context for the assessment of this proposal?

The planning context is an important consideration in the Tribunal's determination of this proceeding. The review site is within a Business 2 Zone and was rezoned to encourage the development of offices, associated commercial uses and residential uses[5].
The land was previously Industrial 3 as remains the zoning of land to the north and west, on the opposite sides of Lobb Street and Beith Street. Land to the east of the site was rezoned to Business 2 in the same Amendment; that is an industrial building with a ridge height of around 10.5 metres. The rezoning was based on the findings of the Moreland Industrial Land Use Study 2004 that included the land in a Multi-Use Residential Area. Both former industrial sites that are now Business 2 were included in a Design and Development Overlay (DDO8). We return to the DDO8 later.
There are many themes within State planning policy that are relevant to the merits of the application. These were set out by the parties and we do not need to recite them. It is noteworthy that Clause 12 of the Scheme identifies strategic redevelopment sites. Based on the specified criteria, there can be no doubt that the review site fits the descriptor of a strategic redevelopment site by being able to provide 10 or more dwelling units, being close to an activity centre, and being well served by public transport.
Clause 21 shows sites within urban villages and abutting or close to public transport corridors as locations for potential higher housing densities. Neither the Strategic Framework Plan (Map 3) nor the Housing Strategy (Map 4) shows the review site within the Brunswick Urban Village because the Village boundary is just east of Sydney Road. Amendment C62 refers to the land as being within the Brunswick Station Urban Village[6] and states rezoning of the land will assist to achieve the Council's vision for urban villages. The officer's report with respect to the Amendment makes the same comments. On its face, that seems at odds with the material within the Scheme. Clause 21.04 states that the boundary of the Brunswick major activity centre has yet to be defined and will be identified through further strategic work. We return to this below. Clause 22.02 is a local policy dealing with development within designated activity centres and urban villages but, because the boundaries of the activity centre are not identified in the Scheme and because the site is outside an urban village based on the plans within the Scheme, the applicability of this Clause can be questioned.
The void is being addressed by structure planning now being undertaken by the Council as foreshadowed in the Scheme. Council's draft Brunswick Structure Plan (July 2008) includes the review site in the boundaries of the Plan. The weight to be given to the recommendations and ideas in that draft Plan is very limited as the Plan has only been released for public consultation and is open to change. However, the inclusion of the review site within the activity centre boundaries is instructive with respect to the Council's thinking on this matter and that accords with a plan tendered by Mr Hughes showing a wider urban village boundary that bisects the review site. Both plans reflect the fact that the review site is a very large land parcel that is very well located with respect to services and facilities including public transport and is earmarked as multi-use residential.
Clause 21.05-2 refers to the Multi-Use Residential Areas which includes the review site. This is where new mixed use developments are encouraged. The Moreland Industrial Land Use Strategy 2004 is one of the documents to be used in assessing land use and development proposals in the Multi-Use Residential Area. Having examined that Strategy from the perspective of matters that might be relevant to the exercise of discretion in the current permit application, we do not find anything that is influential outside the Scheme provisions to which we have had regard.
Having regard to the above, whether or not the site is regarded as within an urban village or activity centre, or outside those nominated areas in terms of the Scheme, the site is suitable for an intensive housing development through Clause 12 of the Scheme as a strategic redevelopment site.
Clauses 22.10 and 22.11 as well as DDO8 are central to our consideration of built form outcomes. Clause 22.02, if applied, reinforces the same themes as evident in these Clauses and DDO8.
Clause 22.10 includes the review site in a commercial character area based on the Moreland Neighbourhood Character Guidelines 2006 (Character Area 78). It is policy that a development in the business zone responds positively to and reflects the characteristics of the existing character of the precinct and responds to the preferred character of the area. Decision guidelines similarly refer to how a proposal responds to the preferred future character. Design standards of relevance to this case included in Clause 22.10 are:

Preferred Future Character Commercial Character Areas

Built form should become a more prominent element in the streetscape.
Building height should not exceed 2 storeys above the prevailing heights of surrounding buildings unless it can be demonstrated that:
- The off-site impacts of the development can be mitigated through a design response, and/or
- The building height at the interface with the street and adjoining properties is no more than 2 storeys above the prevailing height of surrounding buildings.
Prevailing front setbacks should be retained.
Where a site is surrounded by residential uses, the design should respond, at the interfaces, to the Key Characteristics of the Precinct.
Landscaping should be provided within the front setback, where prevailing street setbacks permit.

Area 78's preferred future character statement includes to ensure that the redevelopment of redundant commercial/industrial sites in predominantly residential areas is responsive to the existing neighbourhood character at interfaces between commercial and residential character areas. Albert Street is a boundary between areas 77 and 78. Character Area 77 is a residential character area and refers to the existing character as including groups of two and three storey terraces as occurs opposite the review site. [7]
The scale and building height components of the preferred future character for Area 78 are identical to parts of the Clause 22.10 policy cited in paragraph 13 above. Where a structure plan does not apply, as is the case here, Clause 22.11 is to be used for taller buildings when considering setbacks and site coverage at the interface with residential character areas.
Clause 22.11 addresses development of four or more storeys and has a number of design themes. It is used in conjunction with the Guidelines for Higher Density Residential Development (2004) and complements those Guidelines. Specific guidelines are within Clause 22.11 including with respect off-site impacts such as overshadowing and outdoor space.
DDO8 is very important because it establishes design objectives specifically for the review site and abutting land to the east. These are:
- To increase permeability through the site and surrounding area by improving public linkages and access for vehicles, bicycles and pedestrians.
- To ensure a clear delineation between the public and private areas of the site.
- To ensure the streetscape design provides for pedestrian safety.
- To provide for landscape treatments to enhance the public realm.
- To minimise the number of vehicle crossings, to maximise on-street parking and to reduce pedestrian conflict.
- To ensure that development on the site integrates with the scale of the surrounding area whilst providing for a graduation in building heights across the site.
- To ensure that development on the site incorporates environmentally sustainable design.
- To provide for an appropriate interface with the public realm along Albert Street. [Tribunal emphasis added]
Despite differences in the parties' approaches to the application of the building height provisions referred to at Clause 2.0 of DDO8, we accept the position advocated by the Council and Applicant that there is no maximum height limit for the review site. The building height provisions deal with the edges or interfaces.
The Overlay provides tests by which the nominated heights along the street interfaces can be varied. A decision guideline requires consideration of the height of the development on the surrounding amenity and public realm. Even though the two specific tests referred to in Clause 2.0 of DDO8 might not apply to the overall height of the proposal, the decision guideline must be applied to decide if the proposal meets the design objectives (and there are the character policies which we have cited that are also relevant).
There is nothing within the explanatory report for Amendment C62 to indicate we should approach the application of DDO8 differently or read it as requiring mandatory height limits. That conclusion is plain on reading the Overlay and is supported by the gazetted explanatory statement that states:

The DDO also includes specific building height requirements that aim to provide for a new development that integrates with the building height and scale of the surrounding area.

There were other versions of the Overlay prior to the gazettal of DDO8 but we must apply the Overlay as we find it today in the Scheme.
A final matter we refer in setting the planning or strategic context for our assessment is the status of dwellings within the Industrial 3 Zone, as applies opposite the site in Lobb and Beith Streets. Some submissions referred the entitlements of those residents to a level of residential amenity that is akin to a residential zone. However, the Industrial 3 Zone does not allow new dwellings and they are instead non-conforming uses with existing use rights. Clause 22.03 assists to understand how these uses are regarded by the Planning Scheme where it states under the heading of "Residential and Mixed Use Development":

It is policy that non-conforming residential uses in Industry and Employment Areas are encouraged to be phased out over time and to convert to appropriate employment generating uses.

Having said that, it is somewhat ironic that policy recognises the same land as an area of multi-use residential and the zoning may change in time allowing increased residential uses. Even so, the nature of development in that area can be expected to be quite different to the presentation that exists today. It is, therefore, not appropriate to afford these residences the amenity expectations that some residents are seeking. That conclusion is reinforced by the land use interface policy at Clause 22.03 that states:

In Multi Use - Residential Areas, priority is for the continued operation of existing industry and the establishment of new commercial and mixed use developments. Amenity expectations for residential or other sensitive uses within or adjacent to these areas should accommodate commercial and mixed use development. Residential amenity levels consistent with residential zoning should not be expected, however, new industrial and commercial use and development must be designed and sited so as to minimise off-site impacts on existing residents.

The specific use components in the proposal were not disputed in submissions or statements of grounds but we do address this question briefly.
The review site is zoned Business 2 and therefore no permit is required to use the review site for offices. Siting the offices on the ground level, fronting Albert Street, would support various policies in the Scheme that focus on creating a connection with the street/public realm. It also supports design objectives of DDO8 to provide an appropriate interface with the public realm along Albert Street. The same is the case for the café/restaurant that does require use permission.
Clauses 21.05 states that wholly residential developments are not supported in the multi-use residential area unless in accordance with a structure plan. There is no adopted structure plan and the proposal is not wholly residential; but the commercial components are limited. Our reading of the provisions of Clause 21.05 indicates employment generating uses are sought. The proposal would not make a substantial contribution in this regard but does include commercial activity at ground level which is important to the achievement of design objectives in DDO8 and Clause 22.11. No party has taken issue with the proposal in this regard.

Are the design and form of the multi-level building and townhouses acceptable?

Before turning to the issues that are central to this dispute, it is important to refer to various positive elements of the layout and design that directly respond to the policy framework which we have described:
- the inclusion of a pedestrian/cycle link to the east that, in time, will create a new route to Thomas Street;
- the activation of the ground level to Albert Street that adds visual interest and activity that in turn will improve the quality and safety of the public realm;
- the diversity of dwelling formats, styles and sizes;
- the architectural approach to the townhouses and apartment building;
- reducing the number of vehicle crossings points compared with the existing situation and the concealment of parking.
The crux of the dispute is the inclusion of a highest component of the development in the southern portion of the site.
In addressing this and other built form and design issues raised by the parties, first we refer to the overall layout of the site.
Respondent Objectors referred to the overall massing and layout of the development. They said the design concentrates the tallest element at the most sensitive part of the site, abutting dwellings in the residential area, and instead may not take full advantage of the opportunity to have intensive development across the whole of the site. Their primary concerns with respect to the six storey form of the apartment building are overshadowing of residences and Randazzo Park to the south, the lack of similarly scaled development in the area, failure to graduate heights across the site and failure to integrate with the scale of the surrounding area that comprises buildings of 1-2.5 storeys in height. They said the pattern of redevelopment of larger sites to date has comprises two - three storey terraces with higher forms on Lygon Street and Sydney Road. They also referred to a four storey height across the site and abutting lands identified as a guide within the draft Brunswick Structure Plan and submitted the proposal would be contrary to that proposal. In addition, Respondent Objectors drew attention to differences in the expert evidence that the proposal would either fit with the character or would create a new character.
These submissions were challenged by the Council and Applicant, the latter through the evidence of Mr Govenlock and Mr Sheppard that we do not recite.
The site is one where a substantial development is envisaged by planning policy and is desirable to achieve various planning objectives. Change can be expected. The land is within a setting that currently includes lower, mainly single storey, structures within the Industrial 3 Zone and higher built forms to its east and in the abutting Residential 1 Zone/residential character area. This is perhaps the reverse of what one might expect in the future with the likely redevelopment of the area that is currently Industrial 3.
The tests relating to design and built form provided in the Scheme focus on:
- whether Clause 43.02 and DDO8's design objectives are met.
- whether the character policies are met with respect to more prominent built form and an acceptable graduation above the prevailing heights.
- whether the policies at Clause 22.11 are met that assist to test potential off-site impacts.
DDO8 seeks a street wall or interface with the residential area that responds to the abutting two and three storey dwellings mindful that, where it occurs, the third floor of the terrace row opposite is within a recessive pitched roof form. Beyond that, we must consider the impact of the height on the surrounding amenity and public realm. We must also consider whether the design integrates with the scale of the surrounding area whilst providing for a graduation in building heights across the site. For this commercial character area, Clause 22.10 refers to the building height not exceeding 2 storeys above the prevailing heights of surrounding buildings unless it can be demonstrated that:
- The off-site impacts of the development can be mitigated through a design response, and/or
- The building height at the interface with the street and adjoining properties is no more than 2 storeys above the prevailing height of surrounding buildings.
The proposed podium is less than two storeys above the prevailing height of the buildings to the east and south. The proposal's podium level is three storeys and rises above the 10 metre limit by 200-300mm. Although that departure is not agreed as being acceptable by all parties, we find the variation is without any significant consequence in terms of off-site impacts and it is not critical to the overall impact of the development.
The more contentious and difficult aspect of the building is its three upper levels that are positioned close to Albert Street. In one sense, Albert Street is well able to accommodate a substantial building form particularly when one considers that robust building forms have traditionally been part and parcel of the locale. In addition, there is scope to borrow from the street width and that same width provides an opportunity for a buffer from the dwellings and park to the south. DDO8 and applicable policies do not seek a uniform height along Albert Street and the key question is whether the proposal provides a sufficient graduation. The DDO8 seeks to achieve an acceptable interface by setting upper levels back by 5 metres from a 10 metre street wall although the 5 metres setback can be varied.
A 1 metre setback at ground level is provided in the design, as desired by DDO8, with the three lower building levels setback from this line. The building line is setback a minimum of 5 metres from that 1 metre setback. At all three upper levels there are balconies protruding into the setback area by around 1.5 metres. While the balcony positions and widths vary across the three upper levels, the visual impact of the solid horizontal elements mitigates to a degree the setback of the building face so that the building seems closer to the street than 5 metres at these levels. The intent of the DDO8 is to produce a setback above the podium that has reduced visibility from the opposite side of Albert Street. The sections show the extent to which the top two levels would be seen.
We were referred to a report by Hansen Partnership prepared for the Council with respect to Amendment C62. In discussing building heights (based on a 13 metres street wall) the report noted "substantial setbacks in the order of 5-7 metres from the property boundary"[8] would mitigate the impact of additional height in a context of suggesting a discrete fifth level.
The Council and Applicant argue that the setback of these three levels from Albert Street is sufficient to mitigate visual bulk but we are not persuaded to agree. Nor are we persuaded to agree with Respondent Objectors that the building should be limited to 4 storeys.
One of the reasons we do not accept the lower form sought by Respondent Objectors is because the proposal complies with the overshadowing policies at Clause 22.11 with respect to residential properties to the south and in terms of any increased shadowing of Randazzo Park. The policy at Clause 22.11-3.6 with respect to overshadowing of public spaces as well as private open spaces and habitable room windows in residences is based on the equinox. Winter shadows would be longer but that is not the test to be applied in the circumstances of this case despite us recognizing the northern sun is valued by many people in winter.
Applying tests such as overshadowing and overlooking (where there is a separation of more than 9 metres achieved here because of Albert Street), it can be said that measurable off-site amenity impacts have been mitigated.
However, what remains in issue are the impact of visual bulk and whether a sufficient graduation is achieved. The upper floors of the proposed development will be clearly seen in the near and wider locale, including the opposite side of Albert Street at ground level. That is within a visual reference of the townhouse row that comprises two levels and a third level within a pitched roof. On one view, the transition is from 2 to 6 levels or 2½ to 6 levels. That transition must be considered in the context of the setbacks from the street where balconies protrude into the setback area and the design adopts solid elements that accentuate the building perimeter.
The judgment we must make is a balance. On the one hand, the policies do not expressly support a sixth level nor do the documents that informed the preparation of DDO8 based on the material provided to us. Indeed, the earlier permit application for the site and the report by Hansen Partnership for the Council advising on Amendment C62 both refer a five storey outcome. On the other hand, the policies do not preclude a sixth level. Moreover, this site is very large and represents an excellent opportunity to advance many of the Council's policy aspirations. The importance of that opportunity should not be under-estimated.
We have concluded modifications are required to meet the design objective of DDO8 with respect to integration with the scale of the surrounding area. We may have been accepting of six floors in an apartment building if the upper two levels had been setback further into the site. But, at the setbacks proposed, those levels in particular will be obvious elements in the local setting and, to an extent, would loom over the public realm to the south of the site. With two rows of units in each of the upper three levels, the design can not readily accommodate significant increased setbacks from the street particularly given the position of the lift and stairwells.
A five storey apartment building would make a significant contribution to the Council's strategic ambitions and would achieve sufficient compliance with DDO8 and applicable policies. Within the context of an approved structure plan, there may be other potential options. However, having regard to current circumstances, we consider this to be a balanced outcome.
The apartment building would have a strong presence to Beith Street given the setback is only 2.8 metres at the upper levels. Is this setback sufficient? We are persuaded it is when also having regard to the conclusions we have reached above. This interface is less problematic because it faces the Industrial 3 Zone and although the transition would be from one level on the west side of the Beith Street to five levels on the review site, we find the relationship to have less impact. The transition along the east side of Beith Street within the site would be from 2 to 2½ - 3 levels (associated with the proposed townhouses) and 5 levels for the larger building. This is an acceptable graduation within the site as also required by DDO8.
We had some reservations about the position of a section of wall on the eastern boundary associated with apartments 1.06, 1.07, 2.01 and 2.02. We were concerned that this might unreasonably impact upon development opportunities for the abutting land. We also had some concerns about internal amenity. However, having reviewed the plans further, notably balcony positions above, the orientation of the units, and also being mindful of the limited wall length, we find this aspect of the proposal to be acceptable. We also note the lack of objection from the abutting land owner whose company has been represented in other fora by Mr Govenlock's firm.
It is self-evident that we have not assessed the proposal against the draft Structure Plan that includes the review site and abutting non-residential land in an area referred to as four storeys maximum, with a three level podium along Albert Street with development setback behind by a minimum of 5 metres. The document says the maximum height is a guide and alludes to more detailed built form controls to follow. It might be said there is an inconsistency between that recent discussion document and the position adopted by the Council with respect to the proposed development in this proceeding. That is demonstrative of some of the reasons why the draft Plan can not be determinative in this proceeding; the outcome of the consultation process and a final Plan are too uncertain.
We are satisfied that other elements of the DDO8's provisions and design objectives are met by the proposal such as the creation of a public access that will eventually link to Thomas Street through the abutting site to the west. We note the concerns about environmentally sustainable design referred to by the Respondent Objectors, this being another component of DDO8. The proposal includes some measures and an environmental management plan is accepted by the Applicant as a permit condition. While it may be possible to produce a design layout that results in more units facing north, subject to improvements to which we refer below, we do not think the proposal fails on this point.
Next we refer to the townhouses that were criticised by Ms Cuatt with respect to the size of the front setback from Lobb Street. The townhouses would be setback a minimum of 1.5 metres from Lobb Street over two levels with a recessed third level in the form of roof space.
Although the terrace row is long and unbroken along the Lobb Street frontage, and even though Standard B6 would not be met, we find the setback to be acceptable in the site's context and would respond acceptably to the preferred character for commercial character areas as sought by Clause 22.10. Indeed, the Character Statement for Area 78 indicates that front setbacks may be reduced to allow an increase in density of new development. The scale and height of the terrace row transitions to the lower forms to the north. Potentially, a more substantial form could have been accommodated on the northern and central parts of the review site and still have complied with the local policies and varied DDO8 height provisions.
A final matter is the provision of street trees in Beith Street. They are shown on the plans as within the road space presumably because the footpath is too narrow. However, the road space and available kerbside parking areas are confined too. Like the residents, we would prefer street trees in Beith Street, if possible. We will leave this design detail to be resolved with the Council.
For the above reasons, we find that the proposal represents an acceptable response to the site's physical and planning contexts subject to changes that we have identified. These changes can be addressed by permit conditions.

Would off-site amenity impacts be acceptable given the planning context?

The main issues in opposition to the proposal identified by nearby residents are the potential for overlooking, overshadowing (notably in winter) and visual bulk.
We have addressed visual bulk and shadowing impacts above. We add to those findings that the Guidelines for Higher Density Housing seek suitable daylight access to adjacent private open spaces and we are satisfied that no existing area of secluded open space would be unreasonably adversely affected by shadowing or a loss of daylight. The local policy at Clause 22.11-3.6 is similarly complied with.
With respect to overlooking, it is self-evident that the proposed apartment building would bring with it windows and balconies facing south toward existing residents in the Residential 1 Zone as well as units facing west toward houses in the Industrial 3 Zone. The Guidelines for Higher Density Housing seek to ensure that the privacy of existing residents is protected and rely on Clause 55 standards with respect to overlooking. The same policy is in Clause 22.11-3.7 with respect to a horizontal separation distance of 9 metres between the window or balcony of a new building and habitable room windows. The proposal complies with these tests.
We also refer to the café/restaurant and gym, which Respondent Objectors said have the potential to give rise to off-site amenity impacts such as noise and light spillage.
The gym is located on the third floor and no hours of operation are proposed by the Council. This is a small space with a terrace (including BBQ) and, given the layout, is likely to be limited in its use to residents. There is no reason to restrict hours of operation.
That contrasts with the café/restaurant that would not be exclusive to residents of the site and has greater potential to give rise to unreasonable amenity impacts. Respondent Objectors sought to limit the café/restaurant hours to 6pm in winter and 9pm in daylight savings. This was opposed by Mr Cicero who, through Mr Govenlock's evidence, referred to the desire to have flexibility in hours to attract an operator. The Council proposed 11pm seven days a week but we are not persuaded to agree having viewed the setting both in the daytime and in the evening.
The café/restaurant would be located on the corner of Albert and Beith Streets. It would be close to dwellings in the Residential 1 Zone. Bi-fold doors would allow open dining facing Beith Street. Mr Govenlock suggested outdoor dining could be limited to 10pm but we consider the proposal has the potential to adversely affect existing residents. The facility has been advanced on the basis of no on-site patron parking thus leading to patrons parking on-street. Parking in the area appears quite heavy at night. The changes we will require by permit conditions may enable some on-site patron parking but we are still not satisfied on the material presented that 11pm is reasonable in the site's circumstances. We will limit the hours to 7am - 7pm, which are appropriate for a café. Any proposal to extend hours could be considered in a permit application where the merits of a specific user/use could be assessed.

Is an acceptable level of internal amenity achieved?

The Council expressed concern about the internal amenity of some units. That was with respect to solar access to, and the size of private open spaces, for some units. Its position was based on the policy at Clause 22.11.3.14 that private open space associated with dwellings should have an area of 8 square metres with a minimum width of 1.6 metres.
The importance of achieving an acceptable level of internal amenity is set out in various policies and reference material including Clause 22.11 and the Guidelines for Higher Density Housing. The latter adopts a different approach to the local policy but the local policy is intended to complement the Guidelines having regard to local circumstances.
On the last day of the hearing, a series of plans and a schedule of changes to open spaces was tendered by Mr Cicero and explained by Mr Jones. They sought to improve upon the situation where 33 apartments do not meet the policy at Clause 22.11-3.14. The plans and schedule show more units to comply with the local policy but some units have less than 8 square metres and several have less open space than shown on the application plans.
Mr Hughes said the Council accepted those tendered plans as meeting its concerns but we are not persuaded to agree. The apartments in question may be small but the proposed balconies are very small and in a number of cases also face south and/or are shadowed by levels above. We think the local policy should be adhered to, even if that means some units may become smaller or some units may have to be merged.
Since the hearing, we have noticed the adequacy of daylight to bedrooms although this was not particularly raised as a concern by any party. A number of units are bed-sitters or have one bedroom or study and would rely on borrowed light. The notable units are 1.18 - 1.20, 2.13 - 2.15, 3.08 - 3.10, 4.09 - 4.11 and 5.09 - 5.11. The issue is less significant for the smaller south-facing units because the rooms are closer to windows and benefit from separation provided by Albert Street. Higher units would also enjoy city views. We consider the other north-facing dwellings require review through revised internal floor layouts. It may not be necessary to revise the layout for the top floor (that will become 4.09 - 4.11) as these may be able to be fitted with skylights or roof windows. This matter can be addressed by a permit condition.
We are satisfied that the townhouses are acceptable with respect to solar and daylight access particularly given the spacing between the rows of units. We therefore find no need to require modifications.
Our concerns about internal amenity might be said to partly accept Mr Woodcock's criticisms of the proposal's contribution to environmentally sustainable design. He said not all dwellings having north facing habitable rooms, sufficient solar access private open space or sufficient cross-ventilation. There may be many ways in which a development could achieve fewer south-facing dwellings and balconies but then there are also opportunities presented by the site that must also be considered in a design response such as road abuttals (to provide separation from other buildings) and views. On balance, we find the proposal to be generally acceptable and note other measures within the design to support ESD principles as set out in the tendered material that accord with the matters set out in DDO8.

Is traffic generation associated with the development acceptable?

Some parties referred to the increased traffic that would be expected with the proposal with consequent impacts on the safety and amenity of the area. Residents expressed concern about the location of access to parking within the apartment building being via Beith Street, a pedestrian and bicycle route, and the prospect of the street reverting to two way vehicle movement. They noted the position of a lane or easement along the eastern site boundary as an option thereby avoiding a new crossing/intersection along Albert Street.
The former building on the review site had not been used for many years and thus there has been no traffic generation associated with the review site for a long time. The proposal will obviously bring additional traffic and additional vehicle movement into and through this locality. Mr Walsh's evidence was that the number of vehicles along Albert Street would increase to around 2,500 per day. One may expect more vehicles if, for example, the land to the east of the review site is developed as well.
We are satisfied that the additional traffic can be absorbed into the existing road network including Beith Street. Traffic associated with the proposal will be primarily residential with only a limit amount of commercial traffic associated with the café and offices. Given the size of those non-residential uses, there are unlikely to be many large commercial vehicles so that deliveries and loading can be accommodated kerbside.[9]
The proposal assumes Beith Street is modified to become two-way as had been discussed with the Council during the permit application process. Given that change would be required to proceed through separate approval processes under different legislation, what happens if that cannot be achieved? Having regard to Mr Walsh's evidence we are satisfied that the proposed layout can work if Beith Street is retained for one-way traffic movement. There would be satisfactory options available for vehicles associated with the development to move through the area.
The use of Beith Street to access parking within the apartment building is acceptable and accords with the local policy at Clause 22.11-3.11 to provide vehicle access from a secondary street (rather than the busier Albert Street). There is no doubt that Beith Street is an important connector through the area, whether for vehicles, pedestrians and/or cyclists. However, the amount and nature of traffic is able to be accommodated. If the Council pursues any of the ideas in the draft Structure Plan for a pedestrian priority area along Beith Street, then any works or changes in traffic and/or parking regulations would need to take into account the existing circumstances with respect to vehicle access at that time. Noise from the roller door to the basement can be addressed via a permit condition ensuring the door and any associated intercom facilities do not cause unreasonable intrusion.

Another ground relied upon by some parties is that insufficient parking is provided by the development notably for the café and for visitors. Objectors were also concerned about parking infiltrating local streets.
Having regard to the evidence of Mr Walsh, we find sufficient parking is proposed for the residential components of development in accordance with standards usually adopted by Rescode (Clause 55).
Removal of one level of apartments will allow more parking for the remaining uses. That would be 87 spaces for 61 apartments unless some spaces are reallocated to the offices and/or café which would be desirable. If one space was provided per apartment (noting there are no three bedroom apartments) then 26 spaces would be available for the other uses. That would give scope for some residential visitor parking on-site, some dwellings to potentially have two car spaces, and additional spaces for the commercial components within the development, above the current proposal for a total of 12 on-site spaces for the café and offices.
Overall, we are satisfied that the volume of parking proposed to service the apartment building and its uses would be sufficient to service the proposed uses in this context. The spaces allocated per dwelling would accord with Clause 22.11-3.11 and any necessary reduction in the parking requirements of Clause 52.06 would be acceptable.
We intend dealing with variations in parking arrangements as a consequence of the deletion of the top floor by including a permit condition that addresses the reallocation of car parking within the building through a parking management plan. That can have regard to the potential for sharing car spaces.
In reaching these conclusions, it is important to note access to public transport is excellent and provision is made within the development for bicycle parking (38 spaces). We have also been mindful that on-street parking abutting the site would become available with the removal of existing crossovers. The Applicant has estimated that to be 19 spaces. That number cannot be achieved unless on-street parking restrictions are varied. Moreover, we have some doubt that parking can be achieved on the east side of Beith Street given the narrow width, but again that will be a matter for the Council to review under its local government powers.
A number of issues were raised by Mr Walsh with respect to the detailed layout of the accessway and car park for the apartment building (at page 14 section 5.4). These modifications were accepted by the Council and can be addressed by permit conditions. We do not adopt the plan attached to Mr Walsh's evidence as his oral evidence was that not all of the changes shown would be appropriate such as the loss of the footpath area on the south side of the accessway abutting the café. That path should instead be retained to assist with sightlines.

What about concerns about the detailed design of the public realm?

Several matters were raised by the parties with respect to the detailed design of the public realm. We summarise our findings on these next.
Residents were critical of the landscaped mews and its design, submitting it would not serve as public/communal open space.
It is true that the space will not be like a park or active open space. Rather it is intended to provide a pedestrian/cycle link to Thomas Street in association with a future development of the land to the east of the site and to enhance the amenity of the site itself. These outcomes accord with the design objectives of DDO8 to increase permeability through the site and surrounding area. There is nothing within DDO8, any other Council policy, or draft Structure Plan, to suggest a park or equivalent is required. The proposal would be likely to add to the use of Randazzo Park as Respondent Objectors say but subdivision of the land is the time when a contribution to public open space can be assessed in accordance with the Scheme's requirements. In time, if pedestrian priority programs are adopted and implemented as foreshadowed in the draft Structure Plan, the mews may work as part of a wider network. In the meantime, the final design and landscaping treatment of the mews is a matter for further consideration through permit conditions.
Residents said they doubt the ability of the proposed Section 173 agreement to maintain the space as being in the public realm. We do not agree because if there is a legal obligation for unrestricted public access then that is required to be complied with. The agreement is required to be included on titles and thus will run with the land should it be sold or subdivided. At the hearing, timing of public access was discussed mindful that the redevelopment of land to the east is uncertain. We do not intend placing any timing restrictions on a legal agreement as we consider 24 hour unrestricted public access should be available from the commencement of the use in accordance; that is the way the proposal has been advanced even though it would be likely to be some time before a through path to the east linking to Thomas Street becomes available.
The Council sought deletion of the columns in the one metre building setback from Albert Street. The plans tendered on the final day of the hearing revising open space also showed the columns reduced to 300mm in width. This was not regarded as sufficient by the Council and we agree that footpath intrusions should be minimised. We will require the columns to be deleted to maximise available public footpath space free of encumbrances.

There are clearly many ways in which the development of the review site could be approached to achieve policy aims. A more intensive development might have been possible with respect to the site's interface with the Industrial 3 area to the west and north as might a proposal with a higher commercial component. However, we are required to assess the proposal before us and, for the above reasons, we are satisfied that, subject to modifications notably the removal of the top floor of apartment building, the proposal represents an acceptable outcome taking into account the physical and planning contexts of the site and locality.
We will therefore set aside the decision made by the Responsible Authority and order that a permit issue subject to conditions.

Before the use and development commences, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application (TP100.0 03-03-2005, TP101.0 09-07-2007, TP102.2 31-01-2008, TP103.2 31-01-2008, TP200.2 31-01-2008, TP201.1 10-12-2007, TP202.1 10-12-2007, TP203.1 31-01-2008, TP204.1 31-01-2008, TP205.0 31-01-2008, TP30.0 09-07-2007, TP300.3 31-01-2008, TP301.3 28-11-2007, TP302.4 28-11-2007, TP303.5 31-01-2008, TP304.4 28-11-2007, TP305.4 28-11-2007, TP306.2 31-01-2008, TP307.1 28-11-2007, TP308.1 28-11-2007, TP309.1 28-08-2008, TP310 31-01-2008) but modified to show:
- (a) Deletion of the fifth (top) floor of the apartment building.
- (b) Balconies located within the apartment building increased to provide a minimum area of 8 square metres of private open space, with a minimum width of 1.6 metres without reducing any setbacks of the building from the property boundaries.
- (c) The layout of Units 1.18 - 1.20, 2.13 - 2.15, 3.08 - 3.10 revised to improve daylight access to the study. The layout of units 4.09 - 4.11 must be similarly revised unless an alternative source of daylight is provided to the satisfaction of the Responsible Authority.
- (d) Screening of the townhouses rear balconies as set out in the statement of evidence by Mr J Govenlock to the Victorian Civil and Administrative Tribunal in Application for Review No. P1343/2008 dated September 2008 at page 16-17 section 6.4.3.
- (e) Details of the lift over-run to ensure it is integrated into the building design.
- (f) All heights and setbacks to be clearly dimensioned on the plans.
- (g) Deletion of ground level columns into the one metre setback from Albert Street.
- (h) A parking management plan setting out the allocation of car parking for each use.
- (i) Changes to access and parking arrangements as set out in the statement of evidence by Mr J Walsh to the Victorian Civil and Administrative Tribunal in Application for Review No. P1343/2008 dated 12 September 2008 at page 14 section 5.4.
- (j) The proposed vehicle crossings with 1m straight splays on either side across the full width of the footpath to the kerb in accordance with Council's Standard Vehicle Crossing design.
- (k) Details of the roller door abutting Beith Street including details of any intercom or similar arrangements to facilitate entry into the parking area.
- (l) Details of all proposed exterior materials, decorations, colours and finishes shown on elevations and a separate sample board.
- (m) The location, visual and acoustic screening, of air-conditioning units and other plant equipment.
- (n) Incorporation of any requirements of the Waste Management Plan in accordance with Condition 9 of this permit.
- (o) Implementation of the requirements outlined in the Environmentally Sustainable Design (ESD) Management Plan in accordance with Condition 7 of this permit.
The use and development as shown on the endorsed plan(s) must not be altered or modified unless with the further written approval of the Responsible Authority.
Prior to the occupation of the development, the footpath widening created by the 1 metre setback from Albert Street is to be transferred to the Moreland City Council as part of any future subdivision to ensure consistent on going liability, care and maintenance.
Prior to the commencement of the development hereby permitted, an agreement under Section 173 of the Planning and Environment Act 1987 must be entered into between the Owners of the land and the responsible authority in a form satisfactory to the Responsible Authority providing for:
- (a) Unrestricted public pedestrian and bicycle access through the landscaped mews located between the apartment and townhouses for 24 hours a day.
- (b) The owners of the land to indemnify the Moreland City Council against any claims associated with the use of the landscape mews and to accept liability and responsibility for the on-going maintenance of the pedestrian link.

The agreement must be registered on title. The owner must pay the costs of the Responsible Authority in relation to the preparation, execution and registration of the agreement on title.

Prior to the commencement of construction or carrying out works (other than site investigation works to determine the level of contamination if any on the land) pursuant to this permit, or any works associated with a sensitive use, or where no works are proposed, prior to the commencement of the permitted use, either:
- (a) A Certificate of Environmental Audit for the land must be issued in accordance with Section 53Y of the Environment Protection Act 1970 and provided to the Responsible Authority; or,
- (b) An Environmental Auditor appointed under Section 53S of the Environment Protection Act 1970 must make a Statement in accordance with Section 53Z of that Act that the environmental conditions of the land are suitable for the use and development that are the subject of this permit and that statement must be provided to the Responsible Authority.

Where a Statement of Environmental Audit is issued for the land, the buildings and works and the use(s) of the land that are the subject of this permit must comply with all directions and conditions contained within the Statement.

Where a Statement of Environmental Audit is issued for the land, prior to the commencement of the use, and prior to the issue of a Statement of Compliance under the Subdivision Act 1988, and prior to the issue of an Occupancy Permit under the Building Act 1993, a letter prepared by an Environmental Auditor appointed under Section 53S of the Environment Protection Act 1970 must be submitted to the Responsible Authority to verify that the directions and conditions contained within the Statement have been satisfied.

Where a Statement of Environmental Audit is issued for the land, and any condition of that Statement requires any maintenance or monitoring of an ongoing nature, the Owner(s) must enter into an Agreement with Council pursuant to Section 173 of the Planning and Environment Act 1987. Where a Section 173 Agreement is required, the Agreement must be executed prior to the commencement of the permitted use, and prior to the certification of the plan of subdivision under the Subdivision Act 1988. All expenses involved in the drafting, negotiating, lodging, registering and execution of the Agreement, including those incurred by the Responsible Authority, must be met by the Owner(s).

Prior to any remediation works being undertaken in association with the Environmental Audit, a 'remediation works' plan must be submitted to and approved by the Responsible Authority. The plan must detail all excavation works as well as any proposed structures such as retaining walls required to facilitate the remediation works. Only those works detailed in the approved remediation works plan are permitted to be carried out prior to the issue of a Certificate or Statement of Environmental Audit.
Prior to the commencement of development, a suitably qualified environmental engineer or equivalent must prepare an Environmentally Sustainable Development (ESD) Management Plan in consultation with Council's E.S.D. Unit and to the satisfaction of the Responsible Authority. The plan must provide further detail in relation to the following:
- (a) FirstRate assessments for the apartment and townhouse buildings. This should adequately demonstrate the source of the FirstRate values used within the STEPS assessment, as well as the average FirstRate score for the apartment block.
- (b) Illustration on plans of the ESD initiatives committed to in the relevant STEPS assessment and 'Sustainable Development Report'. These include, though are not limited to:
  - (i) Water tanks;
  - (ii) Solar hot water services.
- (c) Additional information regarding the proportion of fluorescent lighting to other forms of lighting.
- (d) Additional information describing the installation of solar hot water services in the apartment building, including the number of apartments this utility will service.
- (e) The recommendations of the plan must be incorporated into the design and layout of the development and must be implemented to the satisfaction of the responsible authority prior to the occupation of the development. When submitted and approved to the satisfaction of the responsible authority, the Environmentally Sustainable Development (ESD) Management Plan and associated notated plans will form part of this permit.
Prior to the commencement of the development, a Waste Management Plan must be submitted for the apartment building and approved to the satisfaction of the Responsible Authority. The Plan must include, but not limited to the following:
- (a) A description of ease of disposal for residents that does not disadvantage recycling, for instance chutes work for garbage but not for recycling (because of glass and cardboard), requiring additional effort to recycle, discouraging recycling;
- (b) The location of the bin storage area and details of screening from view;
- (c) A plan showing that the storage area is sufficient to cater for 2 x 240 litre mobile bins (one for garbage and one for recycling) for every 3 dwellings plus sufficient bins for the commercial occupiers;
- (d) Details of ventilation if garbage bins are in enclosed areas;
- (e) Details of how the bins will be taken to the point of waste collection;
- (f) Details of where the bins will be placed for waste collection.

When submitted and approved to the satisfaction of the responsible authority, the Waste Management Plan and associated notated plans will form part of this permit.

The Waste Management Plan approved under Condition 8 of this permit must be implemented and complied with as all times to the satisfaction of the responsible authority unless with the further written approval of the Responsible Authority.
Prior to the commencement of any development works, a landscape plan must be submitted to and approved by the Responsible Authority. The landscape plan must provide the following:
- (a) A schedule of all proposed trees, shrubs and ground covers (including numbers, size at planting, size at maturity and botanical names), as well as sealed and paved surfaces. The flora section and landscape design should be drought tolerant and based on species selection recommended in the Moreland City Council Landscape Guidelines and Technical Notes.
- (b) Identification of any existing tree(s) and vegetation proposed to be removed and retained. Vegetation retainment must include strategies for the retainment (ie. Barrier and signage during the construction process).
- (c) Details of the location and type of all paved and sealed areas. Extensive hard surfaces are not supported. The adoption of porous/permeable paving, rain gardens and other water sensitive urban design features is encouraged.
Following completion of the development the areas designated as garden areas on the endorsed landscape plan must be maintained and used as garden areas to the satisfaction of the Responsible Authority.
All pedestrian paths and access lanes shown on the endorsed plans must be constructed and maintained to the satisfaction of the Responsible Authority.
Air-conditioning and other plant equipment must be screened from view of adjoining properties and the street to the satisfaction of the Responsible Authority.
Prior to the occupation of the development all visual screening measures shown on the endorsed plans must be installed to the satisfaction of the Responsible Authority. All visual screening measures to prevent overlooking must be maintained to the satisfaction of the Responsible Authority. Any screening measure that is removed or unsatisfactorily maintained is to be replaced to the satisfaction of the Responsible Authority.
The area set aside for the parking of vehicles and access lanes shown on the endorsed plan must to the satisfaction of the Responsible Authority:
- (a) Be completed prior to the occupation of the development.
- (b) Be properly formed to such levels that it can be used according to the endorsed plan.
- (c) Be drained and surfaced.
- (d) Have the boundaries of all vehicle parking spaces clearly marked on the ground to accord with the endorsed plan.
The thirty eight bicycle parking spaces must be installed in a manner that accords with the specifications in AustRoads' Guide to Traffic Engineering Practice (Chapter 10) or Bicycle Victoria's Bicycle Parking Handbook, to the satisfaction of the Responsible Authority.
The car park entry door is to be automatic and able to be remote controlled, and installed prior to the occupation of the development to the satisfaction of the responsible authority. The remote control and any other security device required to operate the car park entry door must ensure the convenient access of occupants to the building and minimise noise emissions off-site to the satisfaction of the Responsible Authority.
The car parking spaces provided on the land must be solely associated with the development allowed by this permit and not subdivided or sold separate from the development for any reason.
The garage door to each townhouse garage is to be at least 3.5m wide, as required by the Australian Standard for Off-Street Parking (AS/NZS2890.1).
The garage doors are to be automatic remotely controlled to the satisfaction of the Responsible Authority.
Any Council or service authority pole or pit within 1m of a proposed vehicle crossing including the 1m splays on the crossing, must be relocated or modified to the satisfaction of the Responsible Authority.
If any existing street tree is too close to the proposed vehicle crossing and requires removal, the owner must provide an advanced replacement tree in an appropriate location in a nature strip nearby in accordance with the Moreland Street Landscape Strategy to the satisfaction of the Responsible Authority.
An automatic light must be installed and maintained in the car parking area so that the light operates automatically when a vehicle enters or leaves the land between dusk and dawn and no direct light is emitted onto any adjoining property including properties opposite the site.
Prior to the occupation of the development, the 1 metre wide footpath extension to Albert Street, access to the site, any vehicle crossover and any ancillary road and road drainage works must be constructed in accordance with any requirement of the Responsible Authority.
Prior to the occupation of the development, any existing vehicle crossing not to be used in this use or development must be removed and the kerb and channel, footpath and nature strip reinstated to the satisfaction of the Responsible Authority.
The external material, colour and finishes shown on the endorsed plan must not be altered unless with the consent of the Responsible Authority.
A mailbox, with separate aperture for newspapers and other non mail articles must be provided for each of the premises at the street frontage. The mailbox dimensions, placement and numbering must comply with the Australia Post - General Post Guide 2004 (Point G4.3) as published on its website to the satisfaction of the Responsible Authority.
All telecommunications and power connections (where by means of a cable) and associated infrastructure to the land must be underground to the satisfaction of the Responsible Authority.
Any plumbing pipe, ducting and plant equipment must be concealed from external views to the satisfaction of the Responsible Authority. This does not include external guttering or associated rainwater down pipes.
All stormwater from the land, where it is not collected in rainwater tanks for reuse, must be collected by an underground pipe drain approved by and to the satisfaction of the Responsible Authority.
The surface of all balconies and terraces are to be sloped to collect the stormwater run-off into stormwater drainage pipes that connect into the underground drainage system of the development to the satisfaction of the Responsible Authority.
The café use allowed by this permit must operate only between the following hours:
- (a) Monday to Sunday 7am to 7pm.
No more than 40 seats shall be made available to patrons of the café.
The café must not be used for live music.
Noise emanating from the café must comply with the State Environment Protection Policy N-2 'Control of Music Noise from Public Premises.' to the satisfaction of the Responsible Authority.
Noise emanating from the café must comply with the State Environment Protection Policy N-1 'Control of Noise from Commerce, Industry and Trade.' to the satisfaction of the Responsible Authority.

Before the commencement of any building or works on the land a Construction Management Plan (CMP) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority and when approved shall thereafter be complied with. The CMP must deal with hours of construction, the parking of vehicles during construction, delivery of materials, containment of waste on site, public access to footpaths and roads, site security and suppression of dust.

This permit will expire if one of the following circumstances applies:
- (a) the development is not commenced within two (2) years from the date of issue of this permit;
- (b) the development is not completed and the use is not commenced within four (4) years from the date of issue of this permit.

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

[1] An email received by the Registrar on 1 October 2008 refers to Mr J Bennett, Ms M Cuatt, Mr I Woodcock and Mr R Wolfe also representing Mr D Forde and Ms N Kennedy but the Tribunal did not receive a statement of grounds from either person. The same applies to further emails sent to the Registrar from N Atkin, N Skill, J Doherty, K Francis & Cpt M Davies-Kildea none of whom are parties in this proceeding. We also note that some Respondent Objectors had given authority for Mr J Bennett, Ms M Cuatt, Mr I Woodcock and Mr R Wolfe to appear for them at any mediation but mediation was unable to be accommodated in the Tribunal's listings as was discussed at the start of the hearing.

[2] Amendment C62. During the hearing there was discussion about submissions made to the Council during the exhibition of the Amendment including a submission by Mr Wolfe. Although on the Council file, that submission seemed to have been overlooked by the Council in its assessment of the Amendment. This is not, however, relevant to the merits of this permit application and thus it is not something for the Tribunal to pursue. We are bound to apply DDO8 as we find it today.

[3] We refer to this as the "apartment building" for ease of reference.

[4] A review against failure is a deemed refusal under Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998.

[5] Explanatory report for Amendment C62.

[6] Explanatory report for Amendment C62 at page 5.

[7] Dwellings within the Industrial 3 Zone are within Character Area 78.

[8] Report by Hansen Partnership to the Moreland City Council, August 2006, at page 8.

[9] Changes in parking restrictions are likely to be required as a consequence of the development, whether to provide for visitors and/or loading. This will be a matter for the Council to address.

Environment Act 1987

Deal Corporation Pty Ltd v Moreland CC [2008] VCAT 2121

At a glance

Court

Decision date

Before

Source

Judgment (59 paragraphs)

Deal Corporation Pty Ltd v Moreland CC [2008] VCAT 2121 (15 October 2008)

Parties

Legislation Cited (2)