1 Within 28 days from the date of this permit, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and three (3) copies provided, substantially in accordance with the plans submitted filed with the tribunal with respect to application for review no. P2855/2004 on 1 March 2005 but modified to show:

(a)

Removal of the existing central crossover to Toorak Road;

(b)

Improvements to and or replacement boundary fences where in poor condition or have a height less than 1.8 metres; and

(c)

The designation of an external area defined by suitable fencing and provided with seating for residents.

2 The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

3 Prior to the commencement of the use, the owner of the land must enter into an agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987 which in addition to the usual machinery provisions contain provisions dealing with the following matters:

•

the use of the land must be limited to a residential building (rooming house) principally for those in need of crisis accommodation or low cost accommodation and which are referred to the rooming house by an organisation such as Melbourne City Mission, Salvation Army or the like or such other use for which a permit is granted under the Boroondara Planning Scheme;

•

while the land is used under this permit not less than 5 of the rooms must be always available for the purpose of the provision of crisis accommodation with at least 1 room being a multi-bed room;

•

while the land is used under this permit the maximum number of beds, including that occupied by the on site manager/caretaker, being limited to 50 beds and the maximum number of persons to be accommodated must not exceed 50;

•

the land must not be subdivided unless the use allowed by this permit ceases;

•

the agreement comes to an end upon the expiry of this permit or the land is used and/or redeveloped for another purpose in accordance with a planning permit.

The agreement must be prepared at the cost of the owner.

4 Before the commencement of the use, the owner of the land must prepare a Management Plan and submitted it to the Responsible Authority for approval. The Management Plan must, to the satisfaction of the Responsible Authority:

•

set out the proposed method of operation of the use carried out on the land including the use of outdoor areas, maintenance of grounds and landscaping, storage and collection of garbage.

• explain the procedures and processes associated with the referral of lodgers to the land;

• set out the house guest rules to be observed and the action to be taken if they are not observed;

• explain the role of the live in Manager/caretaker;

•

management arrangements to be put in place when the manager/caretaker is not on the site, off duty due to illness or on leave;

•

Multi-bed rooms to be used by families groups or other related groups and not to be used as dormitories accommodating individuals who have no association with each other;

• set out a process or procedure that will be available to neighbours in the event that they need to contact the Manager/caretaker in relation to some aspect of the operation of the use, and

•

Any other matter that is relevant to the conduct of the use in accordance with the conditions of this permit.

When the plan is approved by the Responsible Authority, the use must therefore be conducted in accordance with the Management Plan. The Management Plan may be amended by the Responsible Authority after a written request by the owner or the operator of the use.

5 A telephone number or numbers with 24 hour access to the operator, manager and/or caretaker of the residential building must be displayed on the front door entry in order that any neighbouring resident can register a complaint or address any other matter arising from the use of the site.

6 The amenity of the area must not be detrimentally affected by the use or development, through the:

(a)

Transportation of materials, goods or commodities to or from the land;

(b)

Appearance of any building, works or materials;

(c)

Emission of noise, artificial light, vibration, smell, fumes, smoke. vapour, steam, soot ash, dust, waste water, waste products, grit or oil;

(d)

Presence of vermin, or

(e)

In any other way.

7 Multi-bed rooms must only provide accommodation for one person, a family or group of associated persons. Multi-bed rooms must not be used as dormitories accommodating persons who have no association with each other.

8 Within 30 days of the endorsement of the plans referred to in Condition 1 of this permit, a landscape plan prepared by a landscape architect or suitably qualified and experienced person or firm, incorporating:

(a)

The area(s) set aside for landscaping;

(b)

Improvements to existing garden bed areas within the property frontage and new landscaping and fencing in the rear backyard area;

(c)

A schedule of all proposed trees, shrubs and ground cover, which will include the location, number, size at the time of planting, height and spread at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;

(d)

Planting required by any other condition of this permit; and

(e)

Paving, retaining walls, fence design details, and other landscape works including areas of cut and fill and finished site levels;

must be submitted to the satisfaction of the Responsible Authority. When the landscape plan is to the satisfaction of the Responsible Authority it will be endorsed and will form part of this Permit.

9 An in-ground sprinkler system must be installed in all landscaped areas, to the satisfaction of the Responsible Authority.

10 Landscaping as shown on the endorsed landscape plan must be carried out and completed within 3 months of the commencement of the use hereby permitted, to the satisfaction of the Responsible Authority.

11 All landscaping works shown on the endorsed landscape plans must be maintained to the satisfaction of the Responsible Authority.

12 Prior to the use commencing, a waste management plan must be submitted to the Responsible Authority for approval. Such plan must provide details of a regular garbage collection service to be provided by the owner of the site, including information regarding the type of refuse bins, type/size of trucks, means of accessing bins and frequency and timing of refuse collection, to the satisfaction of the Responsible Authority. Once approved, such plan must be implemented to the satisfaction of the Responsible Authority.

13 Car spaces must not be used for any other purpose other than the parking of vehicles in association with residents of and visitors to the land, to the satisfaction of the Responsible Authority.

14 Redundant vehicular crossing(s) must be removed at the same time as the construction of any new crossover (s) and prior to the completion of development works. The cost of removal of the existing crossing(s) and the reinstatement of street assets (ie. footpath, nature strip and kerb and channel) is to be borne by the applicant and must be to the satisfaction of the Responsible Authority. Additional approval may be required to be obtained from VicRoads prior to the commencement of these works.

15 The applicant and/or any other responsible person will be required to meet the full cost of reinstatement of Council assets damaged as a result of demolition and/or building or construction works. The reinstatement of any and all damaged street assets (ie. road, crossover, footpath, nature strip, kerb and channel, drainage assets, etc) is to be borne by the applicant and must be in accordance to Council Standards. A Council Supervision Permit is required for this work.

16 All bins and receptacles must be screened from view and be maintained in a clean and tidy condition and free from offensive odour.

17 No plant, equipment, services or architectural features other than those shown on the endorsed plan are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.

18 All outdoor lighting must be designed, baffled and located to prevent light from the site causing any detriment to the locality, to the satisfaction of the Responsible Authority.

19 This Permit will expire if the use does not start within two (2) years of the issue date of this Permit.

The Responsible Authority may extend the time referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.

I direct that a permit be issued in accordance with this order.

Mr R Appadurai, Barrister, instructed by Kenna Teasdale lawyers for all respondent objectors.

1 This matter relates to an application under Section 77 of the Planning and Environment Act 1987 against the Boroondara City Council's decision to refuse the grant of a permit in permit application no. PP03/730. The permit application seeks permission to use existing buildings on the land known as 1011 Toorak Road Camberwell [the site] for the purpose of a residential building.

2 The grounds of refusal are:

1. The proposed use of the site as student accommodation fails to achieve any strategic justification for the location having regard to the distance of the site to public transport.

2. The proposed use of the site as student accommodation fails to comply with the objectives of draft clause 12 (Metro Strategy) of the Planning Scheme as it is not located close to an activity centre or suitable public transport.

3. The proposed use of the site as student accommodation fails to comply with the objectives of Clause 22.04 of the Boroondara Planning Scheme (Discretionary Uses Policy).

4. The proposed number of on-site car parking spaces is insufficient to meet the likely parking requirements of future residents and their visitors and will therefore have a detrimental impact on the surrounding residential area.

3 At the hearing Mr Montebello, Mr Appadurai and Mr Sumner all tabled and spoke to detailed written submissions. I was also presented with other documents to assist my consideration of the proposal including various plans, maps and photographs; tribunal decisions and newspaper articles.

4 Mr Appadurai called Ms Jill Anderson, the owner of the vacant property to the west of the site; Mr A W Burgess, the owner and occupier of 32Range Road; and Mr Trevor White, the owner and occupier of 30 Range Road, to give evidence essentially relating to their experiences with both the previously existing nursing home and the more recent use of the site for accommodation. Mr Sumner called expert evidence from Mr P Edwards, a traffic engineer. All witnesses were made available for cross-examination.

5 At the commencement of the hearing, Mr Sumner applied to amend the permit application so that permission being sought is to use the site for the purpose of a "residential building".

6 Mr Montebello and Mr Appadurai offered no objection to this amendment. I allowed the amendment pursuant to Clause 64 in schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

7 After the hearing I inspected the subject site and locality. My inspection included viewing the site from a number of neighbouring properties including the vacant property to the west at 1005 Toorak Road and from the 4 properties immediately to the rear that front onto Range Road.

8 The subject site is located on the north side of Toorak Road, roughly mid-block between Glen Iris Road to the east and Athelstan Road to the west. The site is a regular rectangular shape with a frontage of about 45.71 metres, a depth of 51.61 metres and an overall area of about 2362 square metres. The site is set on sloping terrain, falling from its rear boundary down towards its Toorak Road frontage by about 4 metres.

9 The site is occupied by a single storey development that was used as a nursing home for a number of years. Mr Montebello submitted that the nursing home ceased operation in about August 2003; however, Mr Appadurai submitted that it ceased some time in 2002. This is, however, not critical to the consideration of the merits of this matter as Mr Sumner did not seek to rely on existing use rights.

10 The site is currently being used for the purpose of providing accommodation for about 12 persons. After the nursing home ceased, the site was being used to provide accommodation for many more people; however, the applicant agreed to reduce the number of persons to the current number pending the outcome of this decision.

11 The existing development on the site comprises 3 distinct building elements. The easternmost building would appear to have been constructed as a single storey dwelling dating from the Federation era. This building occupies what could roughly be described as the northern third of the site. The balance of the site is occupied by 2 wings that have been subsequently added[1]. The wings are essentially rectangular in shape and oriented to run side by side in a north-south direction. They are connected to each other and the original house by way of corridor like linkages to create one single building complex. The only other building on the site is a shed located towards the northeast rear corner.

12 The existing development is setback about 14-15 metres from the site's Toorak Road frontage. The frontage setback area is largely paved, providing for a substantial concrete apron that has been used for car parking. This area is capable of being accessed from Toorak Road via 3 crossings that exist along the site's frontage.

13 Unpaved areas within the front setback are used for landscaping that generally comprises low level shrubs and lawn; however, there are also 2 trees of note, a Silky Oak and Lilly Pilly, locate toward the northeast and southeast corners. There are various other trees/shrubs on the site, mainly along the west side boundary. I also note the existence of several tall trees [Sweet Pittosporum, Southern Blue Gum and Southern Mahogany] within the open space or backyard to the rear of the existing building. Except for these trees, the balance of the rear open space is largely grassed.

14 Contextually, the site is located within an established residential area with the adjoining and surrounding properties generally used and developed for either single detached dwellings or some form of medium density housing. A detached dwelling of weatherboard construction, essentially single storey with an attic within the roof space, exists on the property immediately to the east. The property to the west is vacant land; however, a permit was issued at the direction of the tribunal[2] allowing the construction of 2 double storey dwellings in a side by side layout on it. Properties to the south, on the opposite side of Toorak Road are occupied by either detached dwellings or medium density developments.

15 The subject site's rear boundary is directly in common with at least part of the rear boundaries of 3 properties fronting south side of Range Road. These properties are occupied by detached dwellings. The dwellings are generally well setback from the common boundary with the site, with the setback area comprising what could typically be described as suburban size backyard spaces.

16 There are various services and facilities near the site. A bus service runs along Toorak Road whilst a group of local shops exists within a 2 to 3 minute walk to the west on the opposite side of Toorak Road. Beyond this, there a neighbourhood activity centre and fixed rail transport in the form of tram services exist about 800 metres to the east of the site at the junction of Camberwell and Toorak Roads. Tram services can also be accessed by walking up Glen Iris Road to Camberwell Road at a slightly lesser distance.

17 The proposal involves the use of the existing buildings on the site for the purpose of 'Residential Building' providing for short, medium and possibly long term accommodation for persons with varying accommodation needs. No buildings and works are proposed.

18 It seemed fairly clear that there has been a degree of uncertainty as to the exact nature of the use being proposed. In the first instance, the permit application documents described the proposed use as "prescribed accommodation" with supporting material[3] stating that short and long term accommodation was to be provided for local and overseas students. However, in a subsequent document[4] forwarded by the applicant to the council before notice of the permit application was given, the proposed accommodation was described as being "low cost short to medium term accommodation catering for local and overseas students, travellers and local emergency accommodation."

19 As a result of concerns raised by Mr Sumner about the way that the use had been described in the notice material, on 18 February 2005 Member O'Leary gave directions that required, amongst other things, the applicant to provide the council and objectors with further information with respect to the patronage of the proposed use; the distribution of the various types of accommodation; method of management and the nomination of bedroom numbers on the plans. This information was subsequently provided by Mr Sumner in 2 letters, dated 25 February and 1 March 2005.

20 In the 25 February 2005 letter to the registrar, the details of the proposed use were described by Mr Sumner in the following terms:

1. It has always been proposed to use the facilities for a range of short and medium term accommodation options.

2. There are 21 rooms, of which 1 will be used as a caretaker's room and the remaining rooms will be used by paying guests.

3. There are 2 tandem car spaces associated with the caretaker's room and 13 car spaces associated with the other 20 guest rooms.

4. The type of accommodation applied for would fall under the broader 'nesting' definition of 'Residential Building' ....

5. The type of guests to be accommodated on the site will mostly consist of the following:

Crisis accommodation (people who need immediate accommodation on an emergency/crisis basis). This would consist of people who have been evicted from their regular place of accommodation, people whose accommodation has been damaged to the degree of not being habitable, people who have recently left their partners etc...

Student accommodation. Most of these guests would be relatively short term stays as they seek more permanent accommodations options.

Travellers. These would be sporadic with most travellers staying as guests during the warmer months.

People between places of accommodation such as looking for permanent housing).

Business people. This would consist of people staying in Melbourne on business for short and medium periods of time.

6. There are 10 single bedrooms, 5 double bedrooms, 1 four bed room and 4 six bed rooms. The caretaker's room is a double room.

7. A minimum of 5 rooms will be set aside for the purpose of crisis/emergency accommodation (to be referred by Welfare agencies or government organisations).

8. The larger rooms (4 and 6 bed rooms) are to be used to accommodate families or groups of people that are somehow associated (for instance, people travelling together). There is no intention to use these as dormitories and the permit applicant is happy to have this as a requirement placed as a condition on the permit.

9. Therefore, with 5 rooms set aside for crisis/emergency accommodation, and the 5 larger rooms being used by the families or larger groups, there are 10 accommodation rooms available for other types of guests.

It should be noted that the usage is envisaged to have some flexibility in terms of the type of guests staying at the premises and therefore we do not wish to nominate a particular number of rooms for particular types of guests, other than those mentioned above.

21 The site is zoned Residential 1 under the planning scheme. The site is not affected by overlays. Toorak Road is zoned "Road Zone - Category 1".

22 Under the planning scheme's definitions and nesting provisions, "Residential Building" falls within "Accommodation". "Accommodation" other than "dwelling" is a Section 2 or permit required use within the zone.

23 Clause 52.06-1 of the planning scheme requires that a new use must not commence until car parking as specified in the table at clause 52.05 is provided. The table specifies that 1 car space must be provided for each lodging room. If the caretaker's room is included in the calculation, and I believe it should be as the caretaker will be a person who is a live-in lodger, then 21 car spaces are required to be provided. However, under clause 52.06-1, a permit may be granted to reduce or waive the car parking required under the table having regard to a range of circumstances set out in the decision guidelines in the clause.

24 I also note the provisions relating to "Crisis Accommodation" [clause 52.22] and will refer to them as appropriate later in these reasons.

25 Other relevant decision guidelines are set out at clause 65.01. Amongst other things, these require consideration to be given to the planning scheme's policy frameworks, the purpose of the zone, orderly planning and the impact on amenity.

26 In relation to policy, my attention was drawn to various clauses within the planning scheme that set out policy provisions that are in some way relevant to the consideration of the proposal. These include clause 11[Introduction Goals and principles], 14.01 [Settlement] of the State Planning Policy Framework [SPPF]; clause 21.07 [Residential land Use] in the Municipal Strategic Statement [MSS] and clause 22.04 [Policy for Discretionary Uses in Residential Areas] as well as the Metropolitan Strategy, Melbourne 2030. I will refer to the planning scheme's policies as appropriate later in these reasons.

27 In response to notice of the permit application, the council received 16 objections. The grounds of objection were summarised in the officer's "Delegates Report"[5]. In summary, the grounds raised concerns about parking; traffic; noise; problems associated with use of the site for 'crisis accommodation' including anti-social behaviour, graffiti and litter; loss of safety; inappropriate location and overdevelopment.

28 After having considered the submissions and evidence presented on behalf of the parties, the details of the proposal and the relevant matters to be considered under the planning scheme and legislation, it seems to me that the key issues in this matter relate to the appropriateness of the use having regard to the purpose of the zone and policy; suitability of the site's location; amenity impacts and whether the standard of amenity for the future residents of the facility is satisfactory.

29 Before I turn to these specific issues, it is appropriate that I set out my views with respect to some other matters that were raised during the hearing.

30 First, this proceeding relates to one of two applications for review involving the same site that are on foot "concurrently" before the tribunal. The other application, No P1251/2005[6], is also made by the applicant in this case. I was also listed to hear the merits of that application on the days immediately after the first hearing day of this matter.

31 Whilst the same site and applicant are involved, the proposal that is the subject of the other application is totally different and unrelated to what is proposed in this case. From a merits viewpoint, there is no link between the 2 proposals. Any inference that there is a link between the 2 proposals "on the merits" is, in my view, misguided.

32 It is possible to make more than one application for the use and development of the same land. There is nothing in the legislation to prevent a number of permit applications being made at the same time. It is incumbent on the council and this tribunal standing in its shoes to consider each proposal on its own individual merits. Whilst it is convenient from an administrative and efficiency viewpoint to have the same tribunal consider both proposals, the reality is that these cases could have been heard by tribunals constituted with different members and not necessarily heard on consecutive days. The existence of the other proposal is not, in my view, relevant to the consideration of the merits of the proposal before me in this case.

33 Second, Mr Montebello, Mr Appadurai and Mr Sumner all agreed that the proposed use falls within the meaning of "residential building". However, the land use term of "residential building" embraces a number of different forms of accommodation including backpacker's lodge, boarding house, hostel, nursing home and residential hotel amongst others. On hearing the submissions, it seems that there has been some uncertainty as to the exact type of "residential building" being proposed and who its residents would be.

34 I accept that it is necessary to have a good understanding of the nature and type of residential building proposed as this is relevant to the consideration of the merits. For example, amenity considerations and car parking requirements may be different for student accommodation compared to a nursing home.

35 In this case, the documentation provided to the council by the applicant made references to both prescribed and student accommodation. In my view, this contributed to the uncertainty as to the type of residential building proposed. Whilst I appreciate the difficulties that both the council and the objectors may have had in understanding the exact nature of the proposed use, the information provided by Mr Sumner following Member O'Leary's directions went some way towards clarifying the situation. I was surprised that Mr Montebello proceeded to make substantial submissions about the proposal being student accommodation after this information was provided, although in fairness, he also went on to make submissions about the possible use of the land for emergency accommodation. Mr Montebello sought to cover all bases. Mr Appadurai, however, was able to come to grips with the nature of what is proposed, demonstrated by his depiction of the proposed use as set out at page 2 of his written submission.

36 Mr Sumner said that the applicant already runs a number of similar establishments which provide low cost accommodation in other parts of Melbourne. Many residents are referred to those establishments by welfare agencies such as the Salvation Army, Melbourne City Mission, Wesleyan Mission and like organisations at times of personal emergency or crisis. They are offered a room plus the use of common facilities such as the kitchen, bathrooms etc. Residents may comprise individuals or family groups. Residents may, in the first instance, be in need of accommodation due to personal emergency or crisis. Some residents may subsequently opt to reside within the establishment on a more permanent basis after the initial period of personal emergency or crisis is over.

37 The proposal involves what is, in my view, best described as a form of rooming house, managed by a live-in caretaker, aimed at providing low cost residential accommodation for both individuals and/or groups of related individuals such as families. This is the nature of the use for which permission is being sought.

38 Whilst Mr Sumner submitted that the applicant is reluctant to describe the use as a rooming house, I did not understand this to be because it would be an improper description. Rather, I was led to believe that other legislation makes it more difficult for tenants in rooming houses to be evicted if the owner considers those persons to be problematic. From my viewpoint, it is not appropriate to avoid the use being properly described for an ulterior motive; that is, to water down, perhaps even deny, tenants with rights provided under other legislation.

39 It would be fair to say that the building could potentially also be used to provide accommodation for students, travellers and business people. However, realistically, I think there would be a low probability that the accommodation would be attractive to these persons. I would expect that students would look for a site that is more proximate to a tertiary institution. There are none in close proximity to this site. I would also think that the majority of business travellers would be more attracted to other forms of accommodation, such as hotels, motels and/or serviced apartments.

40 I note that in his submission, Mr Montebello said that the ".... council thinks it unlikely that student, tourist and emergency accommodation type uses would be able to successfully co-exist." Mr Appadurai supported the proposition that the premises would not be attractive to either students or business people. I tend to agree with them. As such, I do not consider that the proposal should be examined as providing "student accommodation", or on the basis that significant numbers of business people or tourists would be attracted to the premises.

41 A third point to be made is that contrary to Mr Appadurai's submission, I do not accept that the proposal involves a non-residential use. It is a residential building. Whether a rooming house, boarding house, student accommodation, nursing home or the like, these are places where people live. Their function is residential, albeit that within the various types of residential buildings, the accommodation, facilities and services provided are tailored to cater for the specific needs of the residents. There may be a commercial element involved in that residents would need to pay a fee, however, this can be likened to rent or payment for board and lodging. In this regard, I consider that the proposed rooming house can be likened to a boarding house with any difference being, in my view, a relatively subtle one.

42 Having set out my views with respect to these matters, I now turn to the consideration of the keys issues that I identified at the outset.

43 The site is located within the Residential 1 zone. Paraphrased, the relevant purpose statements for the zone include facilitating the implementation of planning policy and to provide for residential development "at a range of densities with a variety of dwellings to meet the needs housing needs of all households".

44 It is clear that the purpose of the zone is not simply to provide for detached dwellings or medium density housing. Rather, the zone purpose specifically contemplates residential development with a variety of dwellings to meet the needs of all households.

45 A residential building of the type proposed provides a form of residential accommodation or housing. It may be different to other forms of housing found in the immediate area; however, this ought not to be regarded as a flaw; rather it adds to the housing opportunities available. This is supported by local policy. The objectives for residential land use as set out at clause 21.07-3 of the MSS include:

To provide a mix and range of housing types and forms.

Maintain and increase housing choice and diversity within existing residential areas.

47 In principle, I do not consider that the proposed use is contrary to outcome set out in the objective or the strategies to achieve it. I would not regard the proposed use as being one that is inappropriately located within the Residential 1 zone. In support of this, I draw on the comments of Senior Member Monk in Deal Corporation Pty Ltd v Monash City Council [2004] VCAT 563:

There can be no question that residential buildings have a place within the Residential 1 zone and are eminently suited to such a zone.......

48 On reviewing Mr Montebello's submission, I think it would be fair to say that the council is of the view that the proposed facility is not in an appropriate location because of the distance to various facilities and accessibility to public transport. Mr Montebello did not, however, go as far as saying that the proposed use is inappropriate on land zoned for residential purposes.

49 Mr Appadurai, however, suggested that the use is contrary to orderly planning and, in particular, does not accord with the thrust of planning policy including Melbourne 2030.

50 There are many planning policies within the scheme, each directed toward achieving a particular outcome. It would come as no surprise to those who are required to frequently consider proposals against the full raft of planning policy that there can be occasions when there is a degree of conflict between policies. In such circumstances, the task is to consider them and balance conflicting policies in favour of net community benefit.

51 On reviewing the planning scheme's policy frameworks as a whole, I do not consider that the proposal would bring about an outcome that is contrary to or discouraged by policy. In addition to the support within the MSS for the provision of a mix and range of housing within residential areas, there is also policy support in the SPPF for the provision of "affordable" housing[7] catering for the needs of a particular group of people within the community as well as specific support for the establishment of facilities that provide for crisis accommodation in residential areas[8]. Further, Melbourne 2030 identifies the availability of well located "affordable housing" as a key issue to be addressed in policy 6.1. I would think that the provision of a residential building that makes a contribution toward the provision of a low cost housing is directly in line with the thrust of these policies.

52 There are, of course, policies within the scheme that encourage housing to be well located with respect to facilities and services. It was in relation to this aspect of policy that Mr Montebello and Mr Appadurai proceeded to attack the suitability of the subject site for the proposed use. In particular, it was asserted that the site's location is too remote from both good quality public transport and activity centres where a wide range of social services and other facilities are available.

53 In principle, I have no difficulty accepting that it is very desirable for a residential building to be located as close as practicable to good public transport and a range of facilities and services. Public transport is also not ideal in terms of the usual 5 minute walking time benchmark that is typically applied. There is a bus service that runs past the site on Toorak Road; however, buses stop running from about 6pm on weekdays and the service on weekends is more limited. The nearest tram services are about 800 metres away. I also accept that the site is not located within a 5 minute walk of a larger neighbourhood centre [also about 800 metres away] and that the nearest regional centre is about 2 km away.

54 That having been said, I do not think that the site's failure to meet the most desirable locational attributes should be considered as a fatal flaw in this case for a number of reasons.

55 First, I accept that there is a genuine community benefit and policy support for the provision of low cost housing in this form. Boarding and rooming houses provide low cost accommodation; however, its availability has been in decline. As observed by the tribunal in Tulcany Pty Ltd v Knox City Council [2003] VCAT 1627, boarding house accommodation generally is an "important aspect of what is described as social housing, important in the provisions of housing for disadvantaged groups in the community, who would otherwise verge on homelessness." [9]

56 Second, it is not easy to find sites that are suited to this type of use in terms of cost, size, location and buildings. This site has the advantage that the existing buildings are already in place and are suited to the type of accommodation proposed. To rule out sites like this on the basis of their location being more than a 5 minute walk from tram services and a larger activity centre would just add to the difficulty in providing low cost housing.

57 Third, there is a bus service that runs immediately past the site. This service provides a direct link between the site and the Camberwell activity centre. Granted it is a limited service; however, it runs during hours when business and service agencies are open. The tram services are located about 800 metres away and this is beyond the usual 400 metre of 5 minute walk benchmark. However, I do not consider that the need to walk for about 10 minutes instead of 5 to reach a tram service should be a barrier to this site being used for a residential building.

58 Fourth, the site has the benefit of being within easy walking distance, about 200 metres to the west of a series of local shops that provide for a small but convenient range of services including milk bar, take-away food, café/restaurant, medical centre and a petrol station. It is not the full range of retail services, however, convenience shopping needs would be close at hand.

59 When these factors are taken into account, I consider the approach taken by Mr Montebello and Mr Apadurai in terms of the distance to public transport and activity centres is too narrow and excessively restrictive. The site is located within a middle ring suburb where access to facilities and services is reasonably good, generally much better than outer areas. I find the location, in terms of access to public transport and activity centres to be acceptable.

60 The policy at clause 22.04 sets out specific requirements for "discretionary uses" within residential areas. It was submitted that the proposal would need to meet the requirements for "Institutional Uses" as set out in the policy. I have considered the requirements and find that they are generally met. I do not see a need for a master plan for a proposal like this. I have already found that the proximity to public transport is satisfactory. The site is on a main road, headlights should not be a problem and parking is provided on site.

61 Landscaping can be provided as can suitable areas for the storage of garbage. Lighting can be baffled. I see no need for noise attenuation barriers for this use, although I consider that the boundary fences, particularly toward to northwest corner need to be improved in terms of both their condition and height. These matters can be dealt with by permit conditions.

62 Concerns were also raised about the potential impact that the proposed use would have on the amenity of the surrounding residential area.

63 In particular, Mr Appadurai submitted that the residents of nearby properties were fearful that the occupants of the proposed facility would introduce anti-social behaviour; noise, litter and impact on personal security and safety. Residents of properties adjoining the site; Ms Anderson, Mr Burgess and Mr White, gave evidence of their experiences in living next to the nursing home and the changes they observed when it was later used for a residential building, much the same way as proposed now, with substantially more residents than the 12 or so that presently occupy the site.

64 Ms Anderson told of an incident involving her daughter and one of the residents. She advised that a resident with a strange look on his face confronted her daughter in the street and told her that he could "walk on glass". Ms Anderson said that the her daughter felt nervous and vulnerable and this contributed to the family moving out of the home and renting it before it was demolished. Ms Anderson also told me of conversations that she had with the owner of the site that led her to believe that the on site manager was responsible for administering medication to residents. Ms Anderson advised that she may not pursue the development of her property if this proposal goes ahead.

65 Mr Burgess, a resident of a property to the rear of the site in Range Road, advised that the noise was rarely heard from the site when operating as a nursing home. However, after the site commenced operating as a residential building, noise from residents in the backyard space was more prevalent. He also expressed concerns about the standard of management and issues such as drugs, alcohol as well as parking problems.

66 Mr White and his family also reside on a residential property immediately to the rear of the site in Range Road. Mr White advised that there had been a "peaceful co-existence" with the nursing home; however, when the use started operating residents having arguments and using "foul" language could be heard from his backyard. Mr White also told me about incidents where police helicopters had circled over the site late at night and his observations that some residents appeared to be affected by medication.

67 In considering these issues, I would not find it difficult to accept that the use of the land as a residential building would probably result in more "people" noise being heard when compared to the previous nursing home where, in all likelihood, residents would be frail, less ambulatory and indoors for most of the time. However, the previous use does not set the benchmark to be met.

68 On reviewing the evidence, I accept that conversations and perhaps offensive language may have been heard. Some residents may have been taking medication; although I was not persuaded by Ms Anderson's evidence that the caretaker or owner would be responsible for dispensing medication to residents. In any event, I do not think that is relevant. I have no reason to doubt that the police helicopter was present on the occasions cited by Mr White.

69 However, based on the material before me, I have difficulty in accepting that these concerns are a reasonable basis upon which to deny permission being granted for this use. The difficulties that I have are not dissimilar to those expressed by the tribunal in Tulcany. In that case, permission was also being sought retrospectively, to use 2 properties as boarding houses. The 2 boarding houses in had already been operating, ironically also providing crisis accommodation. The tribunal also heard allegations about anti-social behaviour. In considering the issue, my colleagues said:

14. A good example of how need can be relevantly applied in the context of these applications relates to the question of anti social behaviour. There has been one quite serious incident at 54 The Avenue, which understandable was of particular concern to the respondents. There was no evidence led comparing anti-social behaviour associated with boarding houses compared with such behaviour in all housing. Nevertheless it is probably reasonable to assume that housing primarily directed towards disadvantaged single men, brings with it a greater than average risk of anti social behaviour by comparison with the surrounding suburban environment. However it would be rare for this to be a relevant factor, notwithstanding the planning policy provisions in relation to the character and amenity of residential environments.

15 There is a need for boarding houses within the community, boarding houses are a residential use, residential areas are the appropriate location for boarding houses, therefore it would be inappropriate to find that boarding house should not be located in a particular residential environment because of the slightly heighten risk of anti social behaviour, when the implication of that decision is that a boarding houses would be generally inappropriate in almost all residential environments.

16 The Tribunal finds that this is the circumstance of these applications. There is nothing peculiar about the location of these boarding houses, which would mean that the risk of anti social behaviour associated with the boarding houses is greater than it would be for a boarding house established elsewhere. It is the Tribunals observation that these boarding houses are well run establishments.[10]

70 Hearing "people" noise within a residential environment does not represent an unacceptable impact on amenity. The potential for loud arguments and the use of less than desirable language exists in any residential situation. There will be an increase in people living on the site. However, this is a large site. If redeveloped for medium density housing, either townhouses or apartments, there would be a greater concentration of people on it compared to surrounding properties.

71 Persons taking medication can live in any house in any residential street. I can appreciate that some people may feel uncomfortable when they encounter persons with a scruffy appearance; however, I am unaware of any law or planning requirement that makes this a relevant matter.

72 State policy is unequivocal in its support for the provision of crisis accommodation in residential areas and affordable housing. There was no evidence presented to show that the risk to safety and security associated with this proposal would be any greater than those of any other similar residential building. Despite the police helicopter incidents, there was nothing presented to confirm that this would continue to be a regular occurrence simply because of the proposed use. Mr White said he had discussions with police and told me of their concerns; however, there was no evidence to show that the police are more concerned about this particular facility compared to any other similar facility.

73 In Tulcany, the tribunal placed weight on its observation that the premises were well run. I agree that the standard of management is a relevant consideration. In this case, Mr Sumner advised that the applicant is an experienced person who operates a number of similar facilities in other parts of Melbourne. Mr Sumner advised that residents of the premises would be asked to sign an agreement[11] that they would adhere to "house rules". These would include no smoking or alcohol; no drug use/possession; no incense or candles; no abusive or offensive behaviour. Further, Mr Sumner indicated that the applicant would agree to a condition requiring the preparation and implementation of a management plan to the council's satisfaction. I am unable to form the view that the standard of the management would be lacking given the experience of the applicant together with the need for a management plan to be prepared and implemented.

74 Car parking is provided on site. Mr Montebello conceded that "...one advantage with the use of land for emergency accommodation proposed use is that the likely low car parking generation will easily be able to be accommodated within the restricted size of the car parking area presently available on site." On reviewing Mr Edwards evidence, I am satisfied that sufficient car spaces are provided and that a reduction in the scheme's car parking requirements is acceptable.

75 Essentially, I have not been able to come to the conclusion that the external amenity impacts associated with the proposed use are unacceptable.

76 Mr Appadurai also criticised the proposal on the basis that there would not be any upgrading of the existing building or the facilities on site. I am inclined to agree that some measures need to be taken to improve the appearance of the site. These would include improving existing landscaped areas along the frontage; providing additional landscaping to the rear of the building and replacing boundary fences where they are in poor condition.

77 Internal areas within the building provide for basic amenities including kitchen, laundry and bathroom facilities. A "common area" is also to be provided within the building, towards the northwest corner, that gives residents the opportunity to meet and socialise outside of their rooms, but within the building. Rooms have access to daylight from windows.

78 The amount of outdoor open space is adequate. I consider that it would be desirable for an outdoor sitting area to be formally identified and for a timber of fence to be constructed around it, much like what is shown on the plan that was filed pursuant to Member O'Leary's directions.

79 Subject to these changes, I consider the internal amenity to be satisfactory.

80 For the reasons set out above, I have reached the conclusion that a permit should issue. I will set aside the council's decision.

81 The proposed use accords with the purpose of the zone. When balanced, the proposal enjoys the support of planning policy. The location of this use is acceptable. I have not been persuaded that the amenity impacts would be unreasonable. The amenity for future residents is satisfactory.

82 I have settled the form of the permit conditions taking into account the submissions presented on behalf of the parties. In particular, as suggested by Mr Sumner, I have included a condition that multi-bed rooms are not be used as general dormitories for accommodating individuals with no association with each other. These rooms are to be used to accommodate an individual, families and/or groups of individuals who have some form of association with each other. I have not imposed a condition reducing the maximum number of residents to 15 as suggested by Mr Appadurai. Whilst the maximum occupancy is 50 persons, I doubt that it would be reached at most times given that the conditions require the provision of a minimum number of rooms for crisis accommodation, one of which must be a family room; and that multi-bed rooms must not be used as general dormitories. I have also refined the management plan and section 173 agreement taking into account the conditions suggested by Mr Montebello and Mr Appadurai.

[1] From their appearance, the "wings" that have been added to the original house would appear to date from around the 1960's to early 1970's, however, for the purposes of the decision to be made in this case, this is not critical.

[2] Perkins Architects v Boroondara City Council [VCAT Reference No P3360/2003 issued 23 April 2004 unreported, no medium neutral citation]

[3] Statement in support of an application for additional use received by the council on 27 August 2003

[5] The planning officer's delegates report was filed by the council in accordance with VCAT Practice Note 2. The report is dated 7 September 2004, however, signed as approved on 31 August 2004.

[6] See Di Pietro v Boroondara CC [2005] VCAT 1272]

[10] I have added the underlining in the extract from Tulcany to highlight findings that I consider particularly relevant.