The order of the Tribunal is that the decision of the Responsible Authority is varied. It is directed that Condition 1(a) of Planning Permit No. GE/PP-12449/2000 be deleted.

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Ms M Terjung, Town Planning Consultant of The Planning Group, represented the Responsible Authority.

Mr P Bisset, Solicitor of Minter Ellison represented the review applicant and called

Ms C Peterson, Planning Consultant of SJB Planning Pty Ltd.

Zoning: Business 1 - Development Contributions Plan Overlay

Proposal: Extensions to existing office and development of four dwellings.

Condition 1(a) is unreasonable as the third level is well setback and the deck is located in the front. They provide good amenity to the occupants without causing detriment to the neighbours.

1. Application No. GE/PP-12449/2000 was lodged with Council on 24 May 2001 for the purpose of carrying out alterations and additions to the existing office building at No. 144 McKinnon Road, McKinnon and using it for the purposes of offices and four dwellings.

2. Council described the details of the proposal in the following terms:

* Upper floor additions and alterations to the existing single storey commercial premises on the land, including demolition of part of rear of the building;

* The construction of an elevated building to the rear of the site;

* The overall proposal encompassing four residential on-site dwellings and a ground floor office facing the McKinnon Road frontage;

* With additions, the office is to encompass a floor area of 207m²;

* Units 1 and 2 are located above the office, facing out onto McKinnon Road. Both of these units accommodate 2 bedrooms, bathroom, laundry, kitchen, meals/ family area and a northern orientated balcony area of 14m². A third level rumpus room is proposed that incorporates a roof top deck area;

* Units 3 and 4 are proposed to the rear of the site accommodated within a proposed building that is elevated above the on-site car spaces. Both units accommodate 1 bedroom, bathroom, laundry, kitchen, living/ meals areas and a northern orientated balcony area of approximately 10m²;

* All dwellings accommodating pedestrian access to McKinnon Road, with the dwelling entry points gained via a set of shared stairs provided between the existing and proposed buildings;

* With its rear laneway access, the development proposes to accommodate 10 on-site car spaces via 5 sets of tandem configured spaces. Each dwelling is to be provided with two car spaces, whilst the office component is also to be allocated 2 on-site spaces;

3. The application was advertised and five objections were received. As a result of this, modifications were made to the plan which was further advertised. The objections were conveniently summarized by Council as:

* height of rear studio apartments will impact on privacy of backyard;

4. Council also sought comment from its internal departments and its heritage adviser. The

Council Traffic Engineer supported the car parking arrangements and noted that:

* The provision of 8 on-site spaces more than adequately satisfies the parking requirement for the townhouse component of the development;

* With parking `credits' applicable to the existing office on-site, the proposal for 2 on-site spaces for the office is considered acceptable;

* Despite the car space being 2.65m in width there is sufficient turning area to reverse into the ROW and exit the property.

Depending on Council's strategies, there is probably scope for some unit development to the rear of the property and a mix of commercial and residential use above in the building that is fronting the street. The current proposal does not fit very well into the streetscape for the following reasons:

* This particular commercial strip has a mixture of single and two storey shops;

* The height of the proposed building clashes with the adjacent single storey shops;

* The design of the third storey is overwhelming and would dominate the streetscape;

* Whether the construction of townhouses in the middle of a commercial area supports Council's objectives, needs to be carefully considered. It certain (sic) would set a precedent for any other commercial site in the precinct. At this point in time I cannot support the proposal

6. The Tribunal is unclear as to whether the Council heritage adviser is aware of Council's MSS strategy (as detailed below) of promoting higher densities in their activity centres. Comments questioning the construction of townhouses in the middle of commercial areas and the "precedent" that may be set for other commercial sites in the precinct suggest to the Tribunal that Council's strategic ambitions may not be well known to all its advisers. If this is the case, then this needs to be rectified immediately.

7. Council's Urban Designer did not support the original or the modified plans and was most concerned about the height of the uppermost level and felt that it sat "uncomfortably" on the building and would be highly prominent to the west.

8. As is the practice, Council convened a meeting between the objectors and the applicant.

According to Council, the objector's in attendance raised the following points:

* concerned with overlooking from the third level;

* concerned with parking and existing problems in the locality;

* cars will park within Nicholson Street and not park on-site due to narrow laneway.

* site has parking `credits' related to the previous use as a library and bank;

* the proposal is taking advantage of pedestrian access to McKinnon Road;

* some existing buildings in the locality are of a three storey scale;

* they want third level due to views - but could accept officer's recommendation;

* they feel the locality needs this type of proposal and hopes the proposal would "set a precedent".

9. Council's Delegated Approvals Committee ultimately determined to grant a permit subject to (among other conditions):

Buildings and works shall not commence until amended plans are submitted to show:

* The deletion of the third level and roof top decking area;

* The deletion of one of the two proposed office kitchens;

* The deletion of reference to any signage on the elevation plans;

* The western wall of Bedroom 2 of Unit 1 to be stepped in from the title boundary by a minimum of 1 metre to allow the installation of a window. The window must have appropriate screening as per the requirements of Element 7 of the Good Design Guide to prevent overlooking into the rear yard of the adjoining property;

* The installation of a window on the east elevation for Bedroom 2 of Unit 2.

10. As no application for review was lodged against this decision, a planning permit was issued on 18 July 2001. An application for review by the permit applicant was received on 2 August 2001 against Condition 1(a) of the permit specifying the deletion of the third level and the roof top decking area.

11. The Tribunal has inspected the subject site and the surrounding area. The Tribunal noted that McKinnon is an attractive small local centre focussed on the rail station and with a mixture of commercial uses in a built form which dates to the interwar period and which most typically presents as double storey buildings. Evidence of change is emerging with a new (and quite innovative) commercial building at No. 125 McKinnon Road (the "Neostyle" building) plus a recent approval for a three level building adjacent to the rail line at No. 156 McKinnon Road. In a built form sense, the centre has a strong "two storey" element to it which, because of the age of construction, manifests itself at a higher level than contemporary two storey buildings.

12. In terms of the site itself and the surrounding area, the Tribunal adopts the following description as presented in evidence by Ms Petersen:

The site is occupied by a single storey office building of no particular architectural or historic significance. The building contains a tall parapet that adds height to the building within the streetscape. Consequently, this single storey building is 5.8 metres in height. This building occupies approximately the front quarter of the site only. The building is constructed to the street frontage of the property, to its western boundary and setback 1.43 metres from its eastern boundary. The rear of the property is an open grassed area and does not provide any on-site car parking for the office.

To the west is a single fronted, single storey building (No. 142 McKinnon Road) that is built to both side boundaries and also to the street frontage. This building has a staggered parapet, having a maximum height of 4.8 metres. This site contains car parking at the rear and the building is used as a hairdressing salon. Further to the west of this building are single storey dwellings.

To the east is a single storey building used as a shop, which contains a dwelling at the rear. This building forms part of a pair with the building immediately to its west and has a maximum height of 5.8 metres. This adjoining building to the review site is constructed along the common boundary for approximately two thirds of the length of the property and contains car parking and a mature tree in the rear yard.

On the northern side of McKinnon Road is a series of established retail premises, contained within a consistent row of interwar two storey commercial buildings. These buildings present a solid and continuous two storey form along McKinnon Road of approximately 8-9 metres in height.

To the rear is a right-of-way accessed from Nicholson Street, which serves both the commercial and residential properties fronting onto McKinnon Road as well as residences fronting onto Lees Street. To the south of the right-of-way is a large residential block fronting Nicholson Street, containing a planted pittosporum hedge along most of its northern boundary.

13. The strategic and statutory planning controls for the site are most relevant to the outcome of this application. The site is located within a Business 1 Zone, which seeks to encourage (among other things) the development of business centres for retailing and other complementary commercial, entertainment and community uses. Clause 34.01-1 provides that the use of land for a dwelling at first floor is an as-right use. A permit is required for all buildings and works. The Development Contributions Plans Overlay No. 1- Drainage, also affects the site. This overlay requires the payment of a drainage levy based on the increase in impervious surfaces.

14. In a strategic sense, Council's MSS recognises:

* The different role of activity centres and the need for diversity with the activity centre hierarchy of the municipality (Clause 21.02).

* The decline of retailing in the small strip centres and their run down appearance (Clause 21.02).

* The identification of the McKinnon activity centre as a `Neighbourhood Centre' where higher density housing, including shop top dwellings, are encouraged within the MSS Framework Plan (21.03-5).

* Encourage medium density housing in neighbourhood centres, such as McKinnon, with higher densities of development in the form of shop top dwellings encouraged, ensuring that development is in keeping with the scale of the activity centre (Clause 21.04-1) (Tribunal emphasis)

* Encourage highest residential densities in preferred strategic locations, such as within the commercial areas of neighbourhood housing, noting that higher density development within a commercial centre is encouraged than would be permitted in a residential area (Clause 21.04-2)

* Encourage residential uses, amongst others, in small commercial centres such as McKinnon (Clause 21.06).

15. The Commercial Centres policy at Clause 22.04 of the scheme seeks to:

* Consolidate and enhance the existing commercial hierarchy and address the decline of smaller centres.

* New development (including in-fill development and redevelopment of existing premises) be designed sensitively to the existing urban form

* Promote residential activity within and surrounding activity centres, yet not at ground level within the core retail area.

* Encourage new retail, commercial and other developments in existing activity centres to be sympathetic to the look, feel and ambience of the centre, and have regard to the existing built form, cultural, architectural and historical significance, and other urban design elements.

16. The Tribunal believes that there are only two issues in this application:

* Compliance with the MSS Activity Centre strategy for higher densities.

17. Issues such as overlooking, overshadowing, other off-site impacts, traffic and parking are not in dispute. Council submitted that, while the activity centre strategy is satisfied, neighbourhood character is offended and this is the key to the decision of Council. In the opinion of the Tribunal, the key to this application is its compliance with the Council strategy as contained in the MSS. An understanding of that strategy and what would logically flow from its implementation is initially required before any assessment is needed of character, design or amenity impacts.

18. All zones and overlays in new format schemes have, as their first purpose, the need to implement, among other things, the local planning policy framework. In the case of Glen Eira, that framework (especially as presented in the MSS) provides great clarity in the direction which Glen Eira wishes to see activity centres in their municipality develop. Not many Council strategies are as clear as Glen Eira's. The MSS states the following:

Many of Glen Eira's neighbourhood centres are ideal locations for medium density housing due to the range of facilities and public transport opportunities offered. Within the centres themselves there are opportunities for higher densities of development in the form of shop top housing and mixed used developments. (Clause 21.04-1).

Where a small retail centre is in danger of losing its retail role, alternative land uses should be encouraged to fill vacant premises. Favourable considerable should be given to uses such as small business, clean light manufacturing, service business, residential and community use. This is particularly the case in centres such as McKinnon, Patterson, Glenhuntley Road/Bambra Road/Booran Road, Murrumbeena, Hughesdale and a number of small local centres. (Clause 21.06).

Higher density housing is encouraged within the commercial areas of these centres (ie. shop top housing). Medium density housing is encouraged immediately adjoining the commercial areas of these centres. (Clause 21.03-5).

19. The Tribunal notes the distinction here between "higher" and "medium", with the former being within the commercial centres and the latter surrounding them. The Tribunal also notes the consistency of these ambitions with the State Planning Policy Framework (especially at Clause 14) which seeks higher densities around fixed rail nodes.

20. The whole long term strategy of Council is therefore very clear on reading the MSS. Council wants to "protect" their wholly residential areas from major change (Clause 21.03-5). However, they acknowledge (Clause 21.0-4-1) that they will need more dwellings to cater for their housing needs. The targeted areas for the "higher density" increases in dwellings are, according to Clause 21.03-5, in the urban villages (Bentleigh, Carnegie and Elsternwick) and in their neighbourhood centres such as McKinnon. The targeted areas for "medium density" housing is (once again) in neighbourhood centres, mixed use areas, around railway stations, along tram routes and on large transitional sites. These dual strategies free up Council to seek (at 21.03-5) to "............ maintain the scale, character and amenity of residential areas ... (which) ..... should remain largely unchanged .........". The MSS therefore openly invites residential proposals, including shop top housing and higher density development in centres such as McKinnon which will, in part, ease redevelopment pressures elsewhere.

21. Having established the strategy, it seems to the Tribunal that there will be obvious development consequences which Council must therefore anticipate. These include a change in the built environment of the centres, with this change potentially being quite significant. It is hard to see, for instance, how "high density development" might be encouraged without some significant change in the present built form and settlement pattern.

22. The Tribunal respects Council's strategy and believes it is an appropriate land use path for the future. The Tribunal believes that McKinnon could support change, inclusive of buildings at or about the present streetscape levels, without major impact, especially if the centre fringe is then the subject of redevelopment at medium densities. After all, that is the explicit direction given in the MSS.

23. When the subject application is now considered in the context of the above comments, the Tribunal is overwhelmingly satisfied that the proposed development is appropriate. It is of a height no greater than the predominant scale of the centre. Its upper level is recessed from the streetscape. It has no off-site amenity impacts in terms of overlooking or overshadowing. It provides a reasonable level of on-site amenity for end users. Finally it provides variety in accommodation in an area where detached housing dominates and where a variety of end users at various stages of the life cycle may be attracted to live. While it might be visible to persons from the west, this will be subliminal to the vista which already presents itself from Wheatley Road. The fact that it will be visible is not considered fatal especially as its visibility is in the context of an existing shopping centre.

24. In the face of overwhelming compliance with one of the most important strategies in the MSS; and in the absence of any suggestion of off-site amenity impacts; it was a surprise to the Tribunal to find that Council's decision was based on a "neighbourhood character" focus. The Tribunal finds this curious for three reasons. Firstly, the context for neighbourhood character considerations in its MSS (Clause 21.05) is "residential". This area is not residential. It is a commercial centre. The "character" of a commercial area is fundamentally different to the considerations for residential character. A commercial area makes a statement that you have entered an area where business and commerce is its reason for being. This typically manifests itself with taller buildings, signage, activity, street furniture and car parking. The fact that it is near to a residential area certainly gives rise to "interface" issues but in this instance all of these are satisfied. There is an intervening commercial building and the nearest house (No. 140) turns its back on the centre.

25. The Tribunal has trawled through the MSS and policies to find the link between commercial centres and neighbourhood character which might be at the basis of the Council decision, but it has been unable to find it. From Clause 21.02 ("Key Influences"), to Clause 21.03 ("Vision"), to the thematic issues of "Housing Diversity and Density" (21.04); "Residential Urban Character" (21.05) and "Business" (21.06), all discussion of character is in the context of the residential environment and not the commercial environment. The MSS is silent on "character" in the commercial sense. The relevant MSS reference is at 21.04-1 which asks that development be in keeping with the "scale" of the activity centre. The Tribunal regards the scale of the proposal , even with a third level, as being in keeping with the existing, and emerging, built form in the McKinnon shopping centre.

26. The Tribunal therefore thinks it is misleading to "piggyback" the residential urban character ambitions of Council onto this commercial centre. Reliance on "character" as a basis for a decision must have its limits. It simply cannot be used as a reason for every modification or rejection especially when the MSS is silent on its relevance in specific areas.

27. Secondly, there is no suggestion anywhere from Council as to what the character of the McKinnon shopping centre is anyway. There is no relevant study; as noted already, there is no MSS position; there is no Design and Development Overlay to refer to; and there was no attempt in either the Council report or the Council submission to define what makes up the character of this area. On the Tribunal's observations, the centre appears as an attractive local neighbourhood centre which hosts a variety of uses and building styles with interwar double storey shops being the dominant built form. There is already evidence of change taking place with newer buildings being constructed or permitted.

28. But the third and more important reason is that, in many cases, it will be a futile exercise to demand respect of a "character" in an area that you are hoping will change. If, as is the case here, Council is contemplating the rejuvenation of a small activity centre with shop top housing and higher density development, then of course the "character" that is there today will be different to the character that will be there if Council's strategy comes to fruition.

29. Council cannot have it both ways. If they want the development, investment, employment and accommodation in their older centres requiring renewal then it must follow that existing centres will change; and so the present "character" will probably change. That is not necessarily a bad thing, as it is clearly part of their strategy to breathe life into many of the older strip centres. But to deny redevelopment because it offends a character that is referenced only to a point in time prior to the strategy, means that redevelopment is unlikely to be as ambitious as Council seemingly want.

30. Council's confusion on this issue is best summarised in the concluding remarks in the submission to the Tribunal. Council stated that the proposed condition deleting the upper level was justified because it ".......ensures that the neighbourhood character is protected, delivering a balance between urban consolidation, housing diversity and neighbourhood character objectives". This "balance" is not evident from a thorough read of the MSS. On the contrary, it is unambiguously the strategy of the Council to generate housing activity in their comemrcial centres. "Character" is not mentioned in those strategies but is confined to an assessment of the residential areas of the city which Council wants to keep as they are.

31. The Tribunal supports the deletion of condition 1(a). The proposed development in its modified form is precisely what Council's MSS is encouraging. If ever there was an example of an application dovetailing with the new "strategy-driven" planning system then this is it. The Council condition requiring the deletion of the upper storey therefore is a surprise to the Tribunal as it confounds the strategic direction of the scheme. What is even more surprising is that the basis for the condition is "character" in an area where the character is likely to change to fit Council's strategy. The Tribunal believes that asking for significant change, while demanding an observance of "character" is the equivalent of driving a motor car with the foot on the accelerator and brake at the one time.

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