With respect to planning permit application no. PP03/1301, the Responsible Authority's decision to refuse the grant of a permit is affirmed. A permit must not be granted.

Mr S Molesworth QC, of Counsel, instructed by Gadens Lawyers.

Mr T Montebello, solicitor, Maddocks assisted by Mr M Deidun, town planning officer.

Mr R Appadurai, of Counsel, with Mr T Kenna, instructed by Kenna Teasdale lawyers for all respondent objectors.

1 This matter relates to an application under Section 79 of the Planning and Environment Act 1987 against the Boroondara City Council's failure to grant a permit in permit application no. PP03/1301. The permit application sought permission for the development and use of the site for a motel complex.

2 The council had not required notice of the permit application to be given at the time the application for review was lodged. Notice of the application for review was given pursuant to directions under Section 83B of the Planning and Environment Act 1987. Mr Appadurai's clients filed statements of grounds expressing the grounds on which they oppose the proposal.[1]

3 The council has adopted the position of being opposed to the proposed use and development on grounds relating to neighbourhood character [excessive size, height and bulk of the building, not responsive to pattern of development, insufficient opportunities to retain existing vegetation and for new landscaping] and adverse amenity impacts due to potential overlooking to neighbouring properties, lack of building articulation in elevations facing neighbours and insufficient parking.[2]

4 At the hearing Mr Molesworth QC, Mr Montebello and Mr Appadurai tabled and spoke to detailed written submissions. I was also presented with other documents, marked as exhibits, to assist my consideration of the proposal. These included various plans, maps and photographs; a model; tribunal decisions; and extracts from the planning scheme and the council's neighbourhood character study. I was also given a copy of an arboricultural assessment of the existing vegetation on the site.[3] The author of the report was not called to give evidence.

5 A number of witnesses were called to give evidence.

6 Mr Montebello called expert evidence from Ms R Hansen, a town planning consultant.

7 Mr Appadurai called expert evidence from Ms K Prentke, the architect who prepared the model[4] depicting the proposed development and buildings on the properties immediately adjoining the site, and Mr D Bicknell[5], an engineer who provided evidence with respect to photomontages that he had prepared depicting the impact of the proposed building when viewed from various locations. Mr Appadurai also called Mr T White, the owner and occupier of a property fronting Range Road that has an abuttal with the central part of the subject site's rear boundary. A statement of evidence was also tabled on behalf of Ms J Anderson, the owner of the property adjoining the site to the west.[6]

8 Mr Molesworth called expert evidence from Mr S Linke, town planning consultant; Mr C Goss, an expert in photo imaging and preparing visual aids; Mr P Edwards, a traffic engineer and Mr Paul Hamilton, Landscape Architect.

9 All witnesses who presented evidence at the hearing were made available for cross-examination.

10 At the commencement of the hearing, Mr Molesworth applied to amend the permit application by altering the description of the permission being sought to "use and development of a 3 storey motel with basement car parking" and seeking to substitute amended plans including landscape plans as the application plans.

11 Mr Deidun and Mr Kenna who were appearing at the time, offered no objection to the amendments. I allowed the amendments pursuant to Clause 64 in Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

12 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.

13 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 north or rear boundary down towards its Toorak Road frontage by about 4 metres.

14 The site is occupied by a single storey development that was used as a nursing home for a number of years; however, that used ceased about 2-3 years ago. 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 level pending the outcome of the decision in this and another matter.

15 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[7]. 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.

16 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.

17 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.

18 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[8] 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.

19 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.

20 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.

21 The proposal involves the demolition of the existing buildings including the removal of all vegetation and the development of a 3 storey motel complex on the site. A total of 51 motel units are proposed.

22 The proposed development provides for:

• 51 car parking spaces, lifts, plant room and bin storage area at the basement level;

• lounge, lobby and reception areas; a restaurant; manager's residence and 19 motel units at ground floor level;

• 17 motel units; common lounge and lobby are and a small "business centre" at first floor level;

• 15 motel units at second floor level plus common lounge areas.

23 Motel units range in size from 30 square metres to 47.5 square metres. Most units will be located around the perimeter of the building with access to daylight from windows in the front, side and rear elevations. Many of these windows are to have high sill heights. There are also a lesser number of units internal to the building. These units are to be located around a central light well that is to extend from ground level to the levels above.

24 I understand that the restaurant is to be provided primarily for motel guests and their visitors. It is not to be operated as a use in its own right; rather as an ancillary component to the motel.

25 The building is to be positioned on the site so that it would be setback about 12 metres from the frontage at ground floor level; however, a porte cochere that provides shelter at the entry to the reception area extends about 6 metres into the setback. The first and second floor levels of the building step back away from the alignment of the ground floor level to have a minimum setback of 15.21 metres from the frontage. The building would also be setback at least 3 metres from the side and rear boundaries, however it has been designed to provide for quasi courtyard like areas at various points along the side and rear elevations to between 5.5 and 6 metres wide. The upper levels of the building also step back away from the alignment of the ground level to provide for a minimum setback of 6.14 metres to the rear boundary and 5.65 metres to the side boundaries.

26 The building form includes a mix of gable and hipped roof forms; the use of varied materials including brick, render and tiles. Variation in external colour is proposed with darker tones at the lower level of the building with lighter colouring as the height increases.

27 Substantial excavation of the site is proposed. The basement level of the building would submerged below natural ground at all parts of the site. Given the slope of the land, the basement floor level would be about 5.9 metres below the natural ground level at the rear boundary at its deepest point.[9] This also results in a substantial part of the rear part of the ground floor level of the building being below the natural ground level as a consistent floor level is proposed from the front entry to the rear motel units. The extent of excavation will require a series of retaining wall structures to be developed around the rear and side boundaries.

28 The setback areas are to be landscaped in accordance with Mr Hamilton's plans. The landscape theme shows fairly extensive use of tall hedges along all site boundaries interspersed with tree planting.

29 Vehicle access to the site is via 2 crossings that would create a semi circular type driveway across the site's frontage. The access into the basement would be from the driveway, at the southeast corner of the proposed building.

30 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".

31 Under the planning scheme's definitions and nesting provisions, "Motel" is included with "Residential Hotel" which in term falls within "Residential Building". All of these land use terms are embraced within the broader definition of "Accommodation". "Accommodation" other than a dwelling is a Section 2 or permit required use within the zone. A permit is also required under the zone provisions at clauses 32.01-4 and 32.01-6 to construct a residential building. Under clause 32.01-4, a development must meet the requirements of clause 55.

32 Permission is also required under clause 52.29 to provide new access or to alter existing access to a road within a Road zone. An application must be referred to VicRoads.

33 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.

34 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.

35 These include clauses 11[Introduction goals and principles]; 14.01 [Settlement]; 14.02 [Metropolitan development]; 15.02 [Energy efficiency]; 17.02 [Business]; 17.04 [Tourism]; 18.02 [Car parking and public transport access to development] and 19.03 [Design and built form] of the State Planning Policy Framework [SPPF].

36 With respect to the Local Planning Policy Framework [LPPF], relevant policies include clause 21.04 [Vision for Boroondara]; 21.05 [Urban Character]; 21.06 [Environment]; 21.07 [Residential land use] and 21.12 [Movement] in the Municipal Strategic Statement [MSS] as well as the local policies at clauses 22.04 [Discretionary uses in residential zones] and 22.07 [Neighbourhood character].

37 It is also relevant to consider the Metropolitan Strategy, Melbourne 2030.

38 I do not intend to set out the details of all the policies in this document. Rather, I will refer to the planning scheme's policies as appropriate later in these reasons.

39 After having considered the submissions and evidence, the details of the proposal and the relevant matters under the planning scheme and legislation, it seems to me that the key issues to be considered are the suitability of this site for a motel; whether the proposed development is respectful of neighbourhood character; the reasonableness or otherwise of the impacts on the amenity of neighbouring residential properties; adequacy of car parking provided; traffic issues and whether suitable amenity is provided for guests.

40 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.

41 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 P2855/2004[10], is also made by the applicant in this case. I was also listed to hear the merits of that application the day immediately before the commencement of the hearing of this matter. In my decision in the other case [for a Residential Building (rooming house)], I commented:

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.

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.[11]

42 The same comments apply to the consideration of this proposal.

43 Second, as part of the objectors' case, I was presented with a model of the proposal prepared by Ms Prentke. Mr Molesworth raised queries about the accuracy of the model. After hearing from Ms Prentke, I understand that the model does not provide a millimetre perfect depiction of what is proposed. I accept that the purpose of the model was to provide a reasonable depiction and understanding of what is proposed both on the site and its relationship with development on adjoining properties. To this extent I agree that the model is of general assistance; however, it needs to be used with caution. Its usefulness is limited to providing a general picture of the site and immediate surrounds. It is of little value in terms of assessing wider neighbourhood character issues which embrace more than just the site and its immediate surrounds.

44 Third, Mr Molesworth also raised concerns about the representation of the proposed development shown on the photomontages presented by Mr Bicknell. Whilst I appreciate that Mr Bicknell has expertise in terms of surveying and engineering, I am unable to form the view that his photomontages can be relied upon to any great extent. Essentially, I remain unconvinced that the superimposition of an elevation onto a photograph is appropriate. The approach is too simplistic. The photograph essentially shows what I would describe as the "true view" that would be seen by the observer. There is a 3 dimensional aspect to that view. However, elevations do not do this; they are 2 dimensional. Even if Mr Bicknell's elaborate calculations are taken into account, the imposition of an elevation into a photograph is still, in my view, a relatively "rough" technique. I accept Mr Goss' evidence that the preparation of accurate photomontages that can reasonably be relied on requires specialist expertise, skill and sophisticated computer software. In saying this, I am not seeking to be critical of Mr Bicknell's efforts as I do not think that there was intention to mislead me. Mr Bicknell did the best he could with the expertise and tools available to him; however, there are limitations and problems with what he presented and this needs to be properly acknowledged.

45 Following on from this, it is appropriate that I say that in coming to my decision, I have essentially relied on the application plans to gain an accurate understanding of what is proposed. All of the other material and information such as the model, diagrams, photographs as well as the expert views of Ms Hansen and Mr Linke all work together, like the pieces in a jigsaw, in providing contextual information for the assessment of the proposal. However, ultimately, as an expert tribunal, I am able to take into account my own expertise and experience in the assessment of proposals like this.

46 I now turn to the key issues in this matter.

47 The first of these is whether the site is suitable for a motel development. The view put forward on behalf of the council and the objectors is that the subject site is not suited to being redeveloped for a motel complex. Mr Montebello said that the council accepts that the site has the physical attributes that would enable it to be redeveloped for some form of appropriately designed medium density housing. However, he went on to argue that it is unsuited to an intense form of motel development, given its remoteness of the site from public transport and a higher order activity centre and that there is no specific support in the planning scheme's policies for the redevelopment at the intensity proposed. Mr Appadurai essentially supported these submissions.

48 Ms Hansen's evidence supported these arguments. Ms Hansen acknowledged that the use is one that is discretionary within the zone and the site has its frontage to a main road [road in a Road zone - category 1]. However, her view was that the proposal does not enjoy policy support given the site's remoteness from facilities and services and that there is no demonstrated "need" for this use, something that is called for by the first objective at clause 22.04.

49 Mr Molesworth submitted that although the proposed motel is to be run as a commercial venture; nonetheless, it is a use that falls within the meaning of "residential building"; a use that is clearly contemplated as being appropriate within the Residential 1 zone. In relation to the concerns raised by the council about the site's location, Mr Molesworth submitted that the proposed "motel" use ought to be distinguished from a "hotel", with one of the main distinctions being that motel guests would be likely to have a higher degree of mobility as the use is more "car" based. He argued that this is a relevant factor in considering the distance to services and facilities and that the proposed use should not be likened to a form of high density housing.

50 In relation to the issue of whether there is a need for the proposed motel, Mr Molesworth suggested that this facility would provide accommodation for persons seeking to do business in Boroondara, noting that the municipality provides substantial amounts of office accommodation and is the home of a number of multi-national companies. Mr Molesworth went on to argue that even if I am not satisfied that "need" per se can be relied on, following the principle set down by the former Planning Appeals Board in Shell Company of Australia Limited v City of Frankston ( 1983) 8 APA 126, it is not essential for the applicant to demonstrate or prove that there is a "need" for this application to be successful.

51 Mr Linke expressed the view that the site is highly suited to being redeveloped as a motel complex. In particular, Mr Linke expressed the view that the land can be described as a "Major Redevelopment Site" under Melbourne 2030; being large site, well served by public transport and in proximity to a Principal Activity Centre. Mr Linke also supported Mr Molesworth's submission that the proposed use is one that is contemplated by the purpose of the zone and that it would provide a facility servicing both the local and wider communities.

52 On reviewing the evidence and submissions, it is clear that the site's physical attributes are such that it would be capable of accommodating a motel development. In particular, this site is relatively large, much larger than many surrounding sites. It has a wide frontage and access to it is from Toorak Road which is within the "Road zone - category 1." The buildings on the site are not remarkable and they can be demolished. The slope is relatively moderate and offers an opportunity for a basement. Existing vegetation on the site is not of particularly good quality or appropriate within a residential environment. There are 2 trees adjacent to the frontage; the Silky Oak and Lilly Pilly which have some value; however, the larger trees, such as the Blue Gum and Southern Mahogany at the rear of the site, are very large and better suited to much larger spaces than those that could reasonably be expected within a suburban residential environment. It is desirable to keep existing vegetation where appropriate; however, its needs to be assessed in terms of its quality and suitability for a residential environment. I would not regard the loss of all vegetation on this site as being fatal provided that the replacement landscaping is appropriate. This approach is based on a medium to long term outcome for sites like this.

53 A further point to be made is that the use is one that is contemplated by the purpose of the zone. Whilst it is true that not every site within the Residential 1 zone will be suited to a motel development, this site has the benefit of having a wide frontage to a busy arterial road and set within a context where there is a significant presence of medium density housing and non-residential uses nearby. The availability of a bus service in front of the site, tram services about 800 metres away and a local convenience centre about 200 metres away to the west also lend support to the site's suitability for a motel development. I agree with Mr Montebello that motel developments are well suited to corner properties; however, this site has the benefit of a substantial frontage.

54 However, I do not accept Mr Linke's assertion that this site is one that could be described as being a "Major Redevelopment Site" as per Melbourne 2030, nor do I consider it to have any particular strategic importance. I think Mr Linke was trying to give the site more importance than it actually has. It is a large site, but it is in a mid-block location within an area that I would describe as residential hinterland. It is a long way from a Principal Activity Centre. The most proximate public transport is a limited bus service. Tram services are not that far away; however, the distance to these facilities is enough to detract from its importance from a strategic viewpoint.

55 Planning Policy, at both the State and Local level, clearly encourages the most intense development in residential zones within a sphere near and around the more important activity centres and fixed rail public transport. This is made clear at clauses 14.01 and 14.02 in terms of residential development. Even the policy at clause 17.04-2 for Tourism, which encourages well designed and sited tourist facilities such as motels calls for these facilities to have access to suitable transport. This suggests proximity to good public transport as something that is favoured.

56 In my view, the site has attributes that would enable it to be redeveloped and used for a motel. The site's size, frontage to a main road, context near medium density housing and the availability of some public transport and local shops all favour its potential to be redeveloped for a motel. The site's redevelopment for a motel would not, in my view, offend the planning scheme's policies or the purpose of the zone. The zone purpose contemplates that it will provide for a range of uses including a motel. Planning policy does not dismiss the possibility of uses like this from being established within the Residential 1 zone. The local policy objectives suggest that there should be a local "need" for such use and development; however, following the principle established by the former PAB in Shell, I do not regard the absence of such "need" to be a factor that ought to be fatal if the proposal is acceptable in all other respects.

57 Nonetheless, in considering the merits of this proposal, the evidence and submissions presented have not persuaded me that there is a policy imperative or substantial "need" to support the redevelopment of this site for a motel. Further, it is also relevant to recognise that this site is located outside of the sphere where the planning policy encourages very intense or high density development.

58 It is in this light that I now turn to the next key issue; namely, whether the proposal has been designed so that it represents a respectful response to neighbourhood character.

59 Without wanting to put to finer point on it, it was the council's view, supported by the objectors, that the proposed development has not been designed to be respectful of neighbourhood character because it is simply too big. The concerns with the proposal essentially stem from the overall size of the building compared to the form of the building stock that is generally found in the area.

60 Ms Hansen's main concerns essentially fall into the following areas;

• The continuity of the built form along the site's Toorak Road frontage, and its failure to respect the rhythm of development; that is, the spacing of buildings along the streetscape;

• The continuity of the built form along the side and rear setbacks;

• The excessive bulk presented by the proposed building;

• Removal of all vegetation and the failure to replace it with suitable planting, and

• Extensive excavation required to lower the height of the rear part of the development.

61 In contrast Mr Linke expressed the view that the proposal has been designed to be responsive to neighbourhood character. Whilst Ms Hansen saw the extent of excavation as a drawback, Mr Linke was of the view that this approach would result in the building presenting a 2 storey height and scale to the residential properties to the rear. From a streetscape perspective, Mr Linke said that the 3 storey height of the building would sit comfortably within a context of single, double and triple storey buildings found along the streetscape. Further, he regarded the architectural form to be acceptable, drawing on design elements of other buildings in the area. In relation to the massing of the building, Mr Linke suggested its is well articulated, with variation in materials and roof forms all working together with the proposed landscaping to allow the proposed development to fit in along Toorak Road and the area generally.

62 In considering this issue, the first point to be made is that the consideration of neighbourhood character issues in this case is somewhat more complex than usual given that this site has essentially 2 different contexts to respond to.

63 The site clearly forms part of the Toorak Road precinct; as one of many properties that front onto this main road. Many of the properties along Toorak Road near the site have been redeveloped with some form of medium density housing with detached housing interspersed amongst them.

64 I have some difficulty agreeing with Ms Hansen that the streetscape, at least within reasonable proximity to the site, can be described as providing for a mixture of brick Edwardian and Federation dwellings. There is a clear presence of newer development and medium density housing on both sides of Toorak Road and it would be inaccurate to discount this form of development as being relevant to the streetscape character. This observation is supported by the views of my colleagues in their decisions relating to proposals for the redevelopment of nearby properties. In Cooke v Boroondara CC[12] Member O'Leary observed that "Housing, particularly along Toorak Road has an eclectic mix and no one particular style predominates" whilst Member Fong in Perkins Architects v Boroondara CC[13] described the various building forms in the area and concluded that there is a range of styles and forms in this part of Toorak Road. In my view, the Toorak Road streetscape is somewhat "robust" given the nature of the built form and the impacts of the road itself.

65 It is relevant, however, to also bear in mind that this site also has a strong and direct interface with a number of residential properties fronting Range Road. The neighbourhood character or "feel" from Range Road and these residential properties is quite different. Range Road itself is more typical of a leafy suburban street comprising mainly detached houses of either single or double storey height. Backyards adjacent to the subject site have a considerable depth and currently enjoy an open outlook toward the area to the south given the fall of the terrain. Whilst I described the character of Toorak Road as one that is robust, the character of the area immediately to the north is suburban in character with the building form having a finer grain and backyards contributing to the sense of openness and a more tranquil amenity.

66 The challenge for sites like this is that the design must respond appropriately to both contexts. In this case, I am not satisfied that the proposed building has been designed to be sufficiently responsive to and respectful of neighbourhood character.

67 There are elements of the design that show that an attempt has been made to consider both contexts.

68 I have no difficulty with a design style that displays contemporary themes and draws on elements of the older buildings found in the area. I also think that it is fair to say that, in the main, building articulation has been reasonably well handled through the variation in building elements, materials and colours.

69 Both planning experts accepted that there is scope for a building with 3 storey height fronting Toorak Road. Again I have no difficulty with some 3 storey development along Toorak Road. As I have already said, the streetscape is relatively robust, with many properties being occupied by double storey development. I think that the proposed 12 metre setback is reasonable allowing the opportunity for landscaping and vehicular access. The number of vehicle access points has been kept to 2, allowing for landscaping along most of the site's frontage.

70 The notion of "sinking" the building down into the ground at the rear has some merit in terms of reducing the building height so that a 2 storey transition is provided to the rear. The need to reduce the height to no more than double storey is critical in this context. Compliance with setbacks and the stepping in of the upper levels are positives. I think that all of these measures need to be acknowledged as positives.

71 However, I consider that the downfall of this proposal form a neighbourhood character viewpoint is that its bulk has been consolidated into one large mass. It is a very big building and quite at odds with the finer grain form of development found along both Toorak Road and the residential area to the north.

72 I agree with Mr Molesworth that development proposals ought not to be dismissed simply because they present a form that is "different"; however, this building represent a substantial departure from what exists in this area. Whilst the site is located within an area where there is a significant presence of medium density housing; nonetheless the form of such development can be broken down into smaller elements comprising individual dwelling units, albeit that they may be attached. This can be contrasted with the large 2 storey office building to the south-west of the site, located at the edge of the small group of shops on Toorak Road. Unlike the surrounding dwellings, this building takes on a more solid massing.

73 It would be unfair to directly compare the detailing of the proposed building with the office building. However, I consider that the proposed building, well articulated as it may be, still presents itself to all boundary interfaces as a large, continuous and single building mass. I agree with Ms Hansen that the continuity of the built form along all elevations is a matter of concern and not an appropriate response to the site's context. I consider that the impact on the amenity of the neighbouring residential properties would be unreasonably affected by way of visual bulk and a built form that represents a radical departure from the neighbourhood setting.

74 The landscaping response put forward by Mr Hamilton has done little to overcome my concerns. If anything, Mr Hamilton's choice of landscaping response to the boundary interfaces, comprised largely of tall and quite dense hedge planting, seemed to be more about shielding direct views of the building rather than providing for filtered views from neighbouring properties. In fairness to Mr Hamilton, the proposal requires substantial excavation to achieve a 2 storey building height at the rear of the site with retaining walls along the rear and part of the west and east side boundaries. I consider that this has also limited or constrained Mr Hamilton's options.

75 In my view, the proposal represents a fairly aggressive and intense redevelopment response. It is a response that I would expect to see in an area where substantial change is envisaged because the planning scheme's policies and strategies encourage high density or intense development. For reasons outlines earlier, I was not persuaded that this is an area where great change and high intensity development is envisaged. I can find no imperative within the scheme to support a motel in the form and at the intensity proposed on this site.

76 Rather, this site is more suited to infill form of development that responds to neighbourhood character. A more subdued response in terms of the level of development is required to achieve a satisfactory response to neighbourhood character. I find that the proposal has not been designed to be respectful of neighbourhood character in the terms required by planning policy and the objectives of clause 55. The building is too big and its singular form is not appropriate.

77 This is sufficient basis upon which to refuse the grant of a permit. This is not a case where I think that there should be a redesign; rather, the whole concept needs to be thought through again.

78 Whilst I have already expressed the view that the proposal should be refused, I will briefly set out my views with respect to a number of other matters raised at the hearing.

79 In relation to other amenity issues, I am essentially satisfied that the proposal would not result in other unreasonable impacts.

80 A motel, when or not part of a broader suite of facilities, is a relatively benign use from an amenity viewpoint. Essentially it is a place for travellers to sleep and I would expect them to be away for most of the day.

81 Even though a restaurant is proposed, this is for use by guests and not the public at large. There is no outdoor pool or large children's play areas proposed. The proposal would need to comply with the relevant SEPP's with respect to noise. I would not expect noise to be a problem, particular when considered in light of the site's context abutting Toorak Road.

82 To avoid overlooking, windows at upper levels have been designed to have high sills. Whilst this may affect the outlook for guests, it avoids the potential for direct overlooking onto neighbouring properties.

83 There is no evidence of unreasonable shadow impacts.

84 In relation to car parking, I note Mr Montebello's submission that the council is satisfied that the requirements of the scheme are met. During the course of the hearing, I expressed some concerns about whether adequate space would be provided to allow for car parking in the driveway[14] and vehicles seeking to access the basement to pass; and the adequacy of sight lines for drivers leaving the site. Mr Molesworth produced some plans showing changes to the layout of the driveway and landscaping. I think these issues could have been resolved.

85 In relation to traffic, I note that VicRoads did not object. I was not presented with any evidence or persuasive submissions to enable me to come to the conclusion that traffic impacts would be problematic.

86 Finally, Ms Hansen raised concerns about internal amenity. Ms Hansen was particularly critical of the use of high sill windows. The lack of connection between ground floor motel units with courtyard areas and the lack of sunlight to those areas was also raised. Whilst the proposal is for a type of residential building, nonetheless, it is for a motel. The units would be for temporary accommodation only. Whilst I think that the concerns raised by Ms Hansen would need to be carefully scrutinised if this were another form of residential building, I am not concerned about them with respect to a motel.

87 I have come to the conclusion that a permit should not be granted.

88 The subject site has attributes that would lend it to being redeveloped for a motel. However, in my view, there is no strategic imperative for such use and development to occur on this site nor do the planning scheme's policies and strategies identify the area within which the site lies as one where high density and/.or intense development is encouraged.

89 This needs to be taken into account when considering whether the design response is acceptable from a neighbourhood character viewpoint. On reviewing he details of the proposal, I have not been able to come to the view that the proposal is respectful of neighbourhood character. The building is too big and represents a radical departure from the existing neighbourhood character.

90 No permit is granted.

[1] Statements of Grounds are retained on the tribunal's file.

[2] Refer Exhibit R18: Planning Permit Application - Delegates Report 22 March 2005.

[3] Marked Exhibit A40 - Report by Treelogic dated August 2004

[5] Mr Bicknell is also the owner and occupier of a residential property fronting Range Road that has an abuttal with the subject site's rear boundary.

[7] 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.

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

[9] I have used the levels shown on the east elevation.

[10] See Di Pietro v Boroondara CC [2005] VCAT 1271]

[12] MNC [2000] VCAT 988

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

[14] Essentially associated with guests arriving at the motel and waiting to "check in"