The conditions on the permit are the same of those contained in the Notice of Decision to Grant a Permit dated 20 June 2005 except that:

A. Condition 1(c) is deleted and replaced with the following:

1(c) The first floor window in the north-east wall and the first floor kitchen window in the north-west wall screened in accordance with Standard B17 of Rescode.

C. Condition 5 shall be deleted and replaced with the following:

5. Prior to occupation of the residential building a management plan must be prepared and submitted to the satisfaction of the Responsible Authority. The management plan must contain the following:

5.1 General management of the use including peace and quiet, use of communal areas, security, safety, cleaning, sub-letting, pets, use of premises for illegal purposes, moving and vacating rooms (such as that contained in the documentation attached to the Witness Statements of B O'Keefe and R Armstrong in VCAT Hearing P1725/2005 and P1859/2005).

5.2 Waste storage, recycling and collection management, which will provide the following information:

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The location of bins to be stored for collection purposes

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Bin allocation rates

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Owner/operator management of bin placement and retrieval from the street or collection from the site by a private waste collection contractor.

The implementation of the management plan must be undertaken by the owner and/or operator to the satisfaction of the Responsible Authority.

D. The conditions on permit shall be renumbered accordingly

1 Two applications for review have been lodged against the Notice of Decision to Grant a permit for the conversion of an existing motel building to a residential building (rooming house), new buildings and works to the existing building and a reduction in the car parking provision for the rooming house.

2 Andreas Demetriou and others, local residents, seek a review of the entire decision by Maribyrnong City Council to approve the proposal. The main concerns raised by the residents/objectors were:

The Council has failed to examine issues relating to the granting of the permit including:

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The adequacy of room sizes for the proposed accommodation

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The lack of opportunity for handicapped access

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Lack of opportunity for car parking for target users

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The permit discriminates against some members of the target group by ignoring planning scheme provisions

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The conditions on the permit do not, as claimed control the residential amenity issues raised by objectors.

3 The Director of Housing has lodged a review against the imposition of Conditions 2, 3 and 5 on the Notice.

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Condition 2 places a limit on supervised accommodation facility for persons subject to supervision or remand

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Condition 3 requires the owner or manager to make reasonable endeavours to ensure the persons residing on the premises do not create a nuisance or annoyance to neighbours or otherwise disturb the amenity of the area

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Condition 5 imposes a detailed management plan including general management, emergency management, and waste storage recycling and rubbish collection

4 During the hearing there was also debate about the appropriateness or otherwise of Condition 1(c) requiring screening of first floor windows in the north-eastern and north-western elevation of the building.

5 Mr Peake on behalf of the Director of Housing claimed:

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The Planning Scheme recognises the need for and encourages the provision of a variety of housing types, and in particular the provision of low cost housing, which is an important part of the housing mix.

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The proposed use will cater for persons who are eligible for community housing and who do not have the means to enter the private rental market.

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Suitable tenants will be single persons seeking long term accommodation who are able to afford the cost of rooming accommodation and do not have extensive furniture or appliances and therefore will find fully furnished rooming house accommodation to be convenient and suited to their needs.

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This proposed use will assist in addressing the existing waiting list for public housing in the Footscray/Flemington area.

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The use will provide an appropriate level of internal amenity for rooming house residents.

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The use will not have any identifiable offsite effects that arise from the use.

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The nexus between the conditions that have been appealed and the planning permission to be granted.

6 Mr Ilsley on behalf of the responsible authority claimed the proposed use will not have a detrimental effect on the amenity of adjoining residential properties and conditions have been included on the Notice of Decision to ensure appropriate management of the site. Council's Municipal Strategic Statement and Residential 1 Zone Local Planning Policy encourage a diverse range of affordable housing in locations that promote improved residential amenity and are close to and well connected to activity centres such as Footscray.

7 The primary issues for determination in this matter are:

• Will the proposed use provide an appropriate level of amenity for future residents?

• Will the proposed have an adverse effect on adjoining and nearby residential properties?

• Are the conditions which are the subject of appeal appropriate for a rooming house use in a Residential 1 Zone?

8 It is intended to convert an existing two storey motel building into a rooming house to accommodate 24 persons. At present there are 27 motel style rooms and provision for 10 under croft car parking spaces and other areas of hard stand parking areas at ground level. Four under croft car parking spaces will be removed so as to create a new ground level dining room, laundry and storage facility. Twenty two motel rooms will be refurbished and some rooms removed to create two self contained dwellings rooms and a new ground floor lounge. Communal kitchen and dining facilities will be provided on each level.

9 The external footprint of the building will change little except for the deletion of four under croft car parking spaces and various concrete/brick driveway areas will be removed and replaced with landscaping. Two additional car parking spaces will be located in the south-eastern corner of the site thereby providing a total of 8 car spaces.

10 Once the refurbishment has been completed the Young Women's Christian Association will manage the facility and a YWCA representative will attend the site two or three times a week to monitor the operation of the site. There will be no on-site manager.

11 The subject site comprises the former Midgate Hotel in Droop Street Footscray. This is a two storey brick structure erected around 1973 or 1974. The site is located on the north-east side of Droop Street between Geelong Road and Tiernan Street in Footscray. It is directly opposite the Footscray Fire Station.

12 The site has a frontage of 27.43 metres, a depth of 50.29 metres and a land area of 1380 square metres. The building is set back 7.65 metres from the frontage, 6.43 metres from its rear northern boundary, 5.1 metres from its north-east boundary and about 9.1 metres from its south-eastern boundary.

13 Land to the north and south of the site comprise two storey blocks of flats. Land behind comprises detached and attached housing.

14 Droop Street contains a traffic lane in each direction and tram tracks connecting the site with the Footscray Shopping Centre which is located about 400 metres to the south-east. The site is within walking distance of the Footscray RSL, bowling club, schools, Western Hospital, Victoria University, extensive parklands close the Maribyrnong River and the Footscray Activity Centre.

15 The subject site is zoned Residential 1 under the Maribyrnong Planning Scheme. A Development Contribution Plan applies to the land but this is not relevant to this location.

16 A permit is required under clause 32.01-1 to use land for the purpose of accommodation and a permit is required to construct or carry out works for a Section 2 use.

17 There are various State and Local Planning Policies of relevance in this application including:

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Clause 11 The need to recognise and balance planning policies and provisions

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Clause 12 Development Network close to Activity Centres

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Clause 21 Municipal Strategic Statement

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Clause 55 Rescode

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Clause 65 Decision Guidelines

18 At the review hearing both Mr Ilsley and Mr Peake read from detailed written submissions and made oral commentary. Mr Demetriou and Ms Sandeman made oral submissions. Both Ms O'Keefe and Mr Armstrong provided written expert reports and were available for cross-examination. I was provided with locality plans, plans and elevations of the proposal, an, an aerial photograph, copies of other VCAT decisions, DiPietro v Boroondara CC [2005] VCAT 1271 and Heilemann and Ors v Port Phillip CC [1999] VCAT 2148 and extracts of the Residential Tenancies Act, the Health Act and the Housing Standards Policy Manual Version 1.0. Following the review hearing I undertook and inspection of the subject site and abutting properties.

19 At the commencement of the hearing Mr Peake sought leave to substitute the name of the permit applicant to the Director of Housing. There was no objection and amendment was made pursuant to Section 64 of Schedule 1 to the VCAT Act.

20 Mr Demetriou and Ms Sandeman raised concerns about the adequacy of rooms for the future occupants of this rooming house and that the facilities did not meet current trends and directions for community housing. They focused on various definitions of bedsitter type rooms as defined in the Community Housing Standards. There was also debate about whether the proposed accommodation rooms were truly self-contained.

21 The adequacy of the size and components of the rooms are addressed in housing standards of the Department of Human Services (Director of Housing) and there are also various standards in the Health Prescribed Accommodation Regulations 2001, the Health Act 1958 and the Residential Tenancies Act 1997.

22 During the hearing I explained that neither Rescode nor any other provision in the Maribyrnong Planning Scheme places a minimum size for a habitable room, whether it is occupied for self-contained flats, bedsits or otherwise. This understandable because these matters are more appropriately addressed in other legislation. The State Government has, for good reason, deliberately inserted "planning" and amenity controls, that is matters which may impact on neighbouring properties in the planning scheme but it has identified other more specific or targeted habitation standards in other legislation, such as the Health Prescribed Accommodation Regulations, according to the particular needs and requirements of the authorities that need to oversee specific types of residential accommodation.

23 I am satisfied, with some reservation concerning conditions on the permit, that the responsible authority has examined the relevant planning issues, such as the adequacy of car parking, open space and landscaping, day lighting and privacy applicable to a rooming house in the context of this being a conversion from a motel use. Whilst I am satisfied the intensity of the use in general is satisfactory I consider it is not my, nor the responsible authority's role to delve into a dispute about different levels of rooming house standards and definitions, including their adequacy, particularly when there is separate legislation and government departments charged with such.

24 Ms Sandeman was highly critical of the council for not adequately checking the accuracy of statements about the level of self contained accommodation and also the size of rooms. Neither Mr Demetriou nor Ms Sandeman had undertaken their own detailed examination of the dimension of the plans. So the Tribunal scaled the plans and identified the layout of dwellings. This examination showed, as a matter of fact, that only two of the dwellings will be self-contained, that is, they will have their own bedroom, living, kitchen, shower and bathroom facilities. The remaining 22 rooms, whilst having a sink, will not have full kitchen facilities and are not self contained. Instead two communal kitchens and dining areas are provided, one on each level. Whilst I acknowledge Ms Sandeman's claim that the applicants had promoted this as "fully self-contained" accommodation, this is not the case when viewing the layout plans of the development.

25 The rooms according to my estimates, based on the scale drawing, are about 16 square metres in area excluding the toilet and shower facilities. This would seem to exceed the minimum standard for this form of accommodation. Although this issue is not determinative because there are no minimum habitation standards in the planning scheme.

26 In recording this information it should be stressed that the Director of Housing had sought approval for a "residential building" although two of the dwellings will be self contained and can be termed a "dwelling". However the net difference is negligible in a planning use sense because the standards of Clause 55(Rescode) are the same for self contained dwellings and accommodation rooms in a residential building. In addition the entire building is to be established and run as on rooming house unit.

27 It is acknowledged that the building is not suited for handicapped access, the building having been constructed around 1973 or 1974 has stairways to the first floor which are not unacceptable to persons in wheelchairs. Similarly rooms on the ground floor level are unsuited to handicapped persons because existing door openings and bathroom/toilet facilities are inadequate in terms of size and the doors are not wide enough.

28 It would be impractical to require this building to meet the needs of persons who would access a dwelling from a wheelchair. This is not to say that such access is not important, but the Director of Housing has different commitments for this form of accommodation and provides separate accommodation for handicapped persons usually in a new building or in a substantially remodelled building. This would seem reasonable in the context of the Director of Housing's overall obligations to providing affordable housing in the inner and middle suburbs of Melbourne.

29 Mr Demetriou was of the view that providing only 8 car parking spaces for 24 inmates is unfair and discriminates against such future inmates. Mr Armstrong's evidence and the survey provided of car parking for similar rooming houses throughout Melbourne shows that irrespective of the venue the car parking supply outweighs demand. Whilst the survey is not an empirical survey it is a useful indicator of likely parking demand trends for rooming houses in Melbourne, and there was no conflicting information provided about car parking difficulties experienced from rooming houses conducted by or on behalf of the Director of Housing.

30 I am satisfied that the car parking provision will be relatively generous and I have doubts that all 8 spaces will be used in most circumstances. Whilst one or two residents may own a car, the very nature of this use, which is to provide affordable accommodation for persons unable, under normal circumstances, to afford furnished rental accommodation, that this will be an appropriate amount of parking and it would be wasteful to provide a higher car parking provision for this rooming house.

31 I gave consideration to requiring additional car parking noting that an extensive proportion of the motel already had a large paved parking and driveway area on both sides of the building. However I consider such is unnecessary. This landscaping around the site will not only improve the visual appearance of the use and development but it will provide a vastly improved amenity area for future residents. I consider the provision of this open space area vastly outweighs any theoretical or perceived shortfall in car parking anticipated by Mr Demetriou.

32 In addition, I note the site's excellent location in proximity to public transport and the Footscray Activity Centre.

33 There were concerns expressed about overlooking from the new north-east habitable room window on the first floor section of the building and Mr Demetriou also raised concern about overlooking from the new first floor kitchen which faces north-west. I note this kitchen window already overlooks the adjoining property however the applicant offered to provide screening in accordance with Standard B17 of Rescode. Accordingly I have modified Condition 1(c) imposed by the responsible authority in for the north-east facing window and I have also applied it to the north-west facing kitchen window. This is a minor matter.

34 In summary I am satisfied the proposed use and development will be a suitable form of accommodation and any potential adverse impact on neighbouring properties, such as increased overlooking and adequacy of car parking is either acceptable or can be addressed by conditions on permit.

35 I have required removal of Conditions 2 and 3 as I consider these are unnecessarily onerous on the future managers of the building and do not reasonably relate to a normal residential use.

36 I have also required substantial modification to the management plan requirement in Condition 5. I consider the responsible authority has overstepped the mark in attempting to manage the inmates of a rooming house far and above that which would normally be required at a normal rooming house.

37 Having heard the evidence of both Ms O'Keefe and Mr Armstrong I am satisfied that a simple management plan, and one that is directed more at providing guidance to future residents, is more appropriate than to have a management plan which is directed at controlling the behaviour of particular section of the community.

38 I have examined the house rules of the rooming house attached to Ms O'Keefe's evidence and I consider that these provide a suitable framework for management of the use without necessarily impinging on future occupiers. In this regard I agree with Mr Peake's submission that all members of the community are ultimately responsible for their own conduct. There is no reason to anticipate that, and certainly there is no evidence that the residents of this residential building will have any greater propensity to create a nuisance, annoy neighbours or disturb the amenity of the area than any other member of the community.

39 I also consider that in this case it is not the Council or the Tribunal's role to impose conditions on the terms of tenancy of a rooming house when it is being conducted by or on behalf of a State Government agency or managed by an eminently qualified housing agency such as the YWCA. It is also inappropriate to apply conditions and require an emergency and neighbourhood management plan. Not only are the conditions inappropriate, I suspect some may be Ultra Vires, and they are well beyond the scope of matters which need to be examined under Local Policy, Rescode or normal amenity considerations one would expect to find in the Residential 1 zoning, in this locality.

40 I have imposed a requirement for a set of house rules, noting that Section 126 of the Residential Tenancies Act 1997 allows a rooming house owner to make house rules. Whilst it may be appropriate that house rules be applied they should be confined to the type of matters contained within the attachment accompanying Ms O'Keefe's witness statement. These matters include peace and quiet, use of and maintenance of communal areas, security, safety, cleaning, sub-letting, pets, use of the premises for illegal purposes, moving and vacating rooms. All matters should be written in an advisory tone.

41 I am satisfied this use and development will provide a useful social benefit by assisting to reduce waiting times for this much needed form of accommodation. Whilst the accommodation is not perfect or does not meet the high accommodation expectations of Mr Demetriou or Ms Sandeman it is a worthwhile and logical conversion of a disused piece of building infrastructure for a needy sector of the community. I consider there will be little, if any, negative outcome from the use above and beyond that which existed from the existing motel use.

42 For the abovementioned reasons, the responsible authority's decision is varied. The responsible authority's decision was generally correct however I consider that it had overstepped the mark in terms of some conditions particularly those which attempted to control the behaviour or conduct of residents within these dwellings. I consider the proposed conversion of the motel use to a rooming house to be an appropriate planning outcome. It will result in a substantial improvement to the appearance of the site and will provide affordable accommodation in accordance the Council's own Municipal Strategic Statement.

43 There will also be little if any overlooking, and in some respects an improvement in privacy conditions for adjoining neighbours. There will be an enlarged landscape area which future occupants can enjoy and the accommodation is commensurate with the needs of a target group in the housing market.