Jeremy Gobbo, QC and Jennifer Trewhella, Barristers instructed by Best Hooper Solicitors.

Mr Gobbo and Ms Trewhella called expert evidence from Mark Sheppard (urban designer) of David Lock and Associates, Catherine Heggen (town planner) of Message Consultants and John Kiriakidis (traffic engineer) of GTA Consultants.

Mr Gobbo and Ms Trewhella also circulated but did not call expert evidence from Samantha Slicer (visualisation) of Flood Slicer.

Jason Kane, Barrister by direct brief, assisted by Joanna Cuscaden, Principal Planner of Bayside City Council.

Mr N Tonkin appeared in person and read a submission prepared by John Scott.

Construction of a five storey building comprising a café and offices on the ground floor, and 51 apartments on an additional four floors above the ground floor. Car parking is to be provided in two basement levels. Permissions are sought to reduce the standard car parking requirement, and to waive the loading bay requirement associated with the café.

Application under Section 79 of the Planning and Environment Act 1987.

Clause 34.01-4 to construct a building or construct or carry out works on land within the Commercial 1 Zone.

Clause 52.06-3 to reduce the standard car parking requirement set out under that Clause.

Clause 52.07 to waive the requirement for a loading bay.

Clause 52.34 to reduce the standard bicycle facilities requirement set out under that Clause.

Clauses 10, 11, 15, 16, 17, 18, 21, 34.01, 52.06, 52.07, 52.34 and 65.

The land is the combination of two allotments which combine to produce a rectangular shaped parcel with a frontage to Martin Street of 25.62 metres, a sideage to a laneway of 59.48 metres (plus a splay) and an overall area of 1596 square metres. The land is presently occupied by a two storey brick building and a single storey shop. The land sits within the Martin Street Neighbourhood Activity Centre.

The Tribunal inspected the site and surrounding area on 18 March 2014.

M & A Brighton Pty Ltd v Bayside CC [2013] VCAT 2113; Glenhill Pty Ltd v Stonnington CC & Ors [2013] VCAT 488; Buckerfield Architects v Boroondara CC [2004] VCAT 659.

1. Double Yellow Dot Pty Ltd (the 'Applicant for Review') have sought a review of the failure of the Bayside City Council to grant a permit within the prescribed time, in relation to a site at 116-120 Martin Street, Brighton. The proposed development is a five storey mixed used building, comprising a café and offices on the ground floor, and 51 apartments on the floors above that. Permissions are also sought to reduce the standard car parking requirement, and to waive the loading bay requirement associated with the café.
2. The Bayside City Council has determined that it would have refused to grant a permit, based on three grounds. Those grounds relate to the scale and bulk of the proposed development, the amenity impacts on surrounding residential properties, and the extent of car parking provided on site.
3. The Application for Review is also being opposed by a number of local residents, who raise concerns similar to those relied upon by Council. In addition some of the residents raise concerns in relation to the likely increase in traffic movements in the local road network.
4. The key issues or questions for determination are:

1. Is a building of this scale supported by the Bayside Planning Scheme? 2. Is the built form appropriately managed on site?

1. Will there be any unreasonable off-site amenity impacts?

1. Is an appropriate level of internal amenity achieved? 2. Does the proposal appropriately provide for car parking and traffic movements?
2. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Bayside Planning Scheme, we have decided to set aside the Council's decision, and direct the grant of a permit subject to conditions. Our reasons follow.

Is a building of this scale supported by the Bayside Planning Scheme?

1. Mr Kane for the Council submitted that the proposed development at five storeys in height did not achieve the policy objective of a village feel in its Neighbourhood Activity Centres. He also submitted that this scale of development was more appropriate in the higher order activity centres, including the Major Activity Centres found elsewhere in this municipality.
2. State policy is fairly clear in its expectation that Neighbourhood Activity centres be a focus for higher density housing. Policy specifically seeks to:

Encourage higher density housing in and around Neighbourhood Activity Centres that is designed to fit the context and enhances the character of the area while providing a variety of housing options for different types of households.[2]

Increase the proportion of housing in Metropolitan Melbourne to be developed within the established urban area, particularly at activity centres, employment corridors and at other strategic sites, and reduce the share of new dwellings in greenfield and dispersed development areas.[3]

1. This policy intent is continued at a local level. Firstly, the municipality is identified as needing additional housing, and at a greater diversity, to provide for its future housing needs. This is not unique to the Bayside municipality, it is a desire expressed throughout metropolitan Melbourne as our population ages and the number of lone person housholds continues to increase at a significant rate. This trend is identified at Clause 21.03:

At the last Census in 2006 Bayside had a population of 87,939 people. Forecast population increases and a trend towards smaller household sizes and an ageing population is increasing the demand for a greater variety of housing types and more affordable housing. To meet the forecast population increases and demographic changes, additional dwellings will be required.

In addition to this expected population growth, Bayside is a municipality where people choose to spend their whole lives. It will therefore be essential to ensure that a range of accommodation options are provided to meet the needs of the existing and future populations throughout the various life stages.

1. Secondly, the site is identified as being within a residential opportunity area on the Strategic Land Use Framework Plan to Clause 21.02, being within easy walking distance of the Gardenvale Railway Station. Thirdly, Martin Street is identified as one of four 'large' neighbourhood activity centres. As a result of these policy themes, the following policy objectives therefore apply at a local level:

Activity Centres will play an increasingly important role in providing for future housing needs, particularly as opportunities diminish elsewhere due to neighbourhood character, heritage and environmental constraints.

The redevelopment potential within and around selected Activity Centres provides opportunities for medium density housing, resort style accommodation and shop top housing.

Direct new medium density housing to Major Activity Centres, residential opportunity areas, particularly those with good access to public transport routes as identified in the Strategic Land Use Framework Plan.[4]

Add to or replace single storey buildings with new multi-storey buildings to provide additional housing opportunities in business precincts and zones.

Encourage redevelopment of larger sites for higher density residential dwellings.

Encourage the more efficient use of built form through the consolidation of sites and construction of basement car parks.[5]

1. Based on this policy analysis, we do not support the proposition put forward by Council that Neighbourhood Activity Centres, such as the one before us, should not be expected to be burdened by development of this scale, in preference for such development to be accommodated in higher order activity centres. The policy, at both a State and local level, clearly contemplate the extent of development that should occur within activity centres within the hierarchical context. Both confirm that higher density housing, that is housing of four or more storeys in height, are appropriate for Neighbourhood Activity Centres. We note again that this policy encouragement exists not only at a State level, but also within the local policies found within the Municipal Strategic Statement of the Bayside Planning Scheme.
2. As such, we agree with and adopt the comments contained in the decision of Glenhill Pty Ltd v Stonnington CC & Ors[6], which considered a similar argument concerning a Neighbourhood Activity Centre in Glen Iris:[7]

Our analysis of State policy is that higher density housing is specifically contemplated and encouraged not only within, but also around, a NAC. The notion of higher density housing within a NAC, particularly one where land is underutilised, comprising a centre which contains redevelopment opportunities, is well served by public transport and has a high level of accessibility given its proximity to Melbourne's arterial road network is clearly in line with State policy.

The MSS, as its stands, notes there is a need to 'cater the diverse housing needs of the municipality's existing and future population' and that 'population projections indicate a continuing need for accommodation for smaller households'. It also directs residential development to large redevelopment sites where the infrastructure capacity can be optimised.

There is clear direction given by broad strategic policy that increased housing densities are specifically contemplated in this type of location. Development expectations are, however, tempered by the qualification that such development must fit the context and 'respect the character of adjoining residential areas'.

We have reviewed the policies at Clauses 22.02, 22.05 and 22.06 and find that they do not conflict with the general strategic intent set out above. Those policies do not work against increased housing in NACs, rather, they express a position, consistent with state policy and the MSS, that new development should fit the context, respect the character of residential areas and not have adverse or unreasonable impacts on amenity. We accept that these policy requirements are important in assessing this proposal. Provided these matters are satisfied, we do not accept that a 7 storey building is inappropriate having regard to the strategic context

The Council argues that the level of development is too much for a NAC at the lower end of the hierarchy. It argues that the centre's location at the bottom end of the hierarchy brings with it an expectation of lower scale development compared to that found in higher order centres such as PACs or MACs.

In principle, we do not disagree with the general proposition that the most intensive forms of development should be concentrated in higher order centres. However, in cases like this, where there is no specific direction given with respect to height either through policy or an overlay, an assessment that relates specifically to the context at hand must be made. We agree with Glenhill that it is not as simple as saying that to respect the Activity Centre hierarchy, buildings within NACs must be lower than those in higher order centres.

1. Council sought to rely on policy that seeks to achieve a 'village feel' in its neighbourhood activity centres as arguing for a smaller scale. The meaning of this term in local policy was relevantly explored in the decision of M & A Brighton Pty Ltd v Bayside CC[8] which considered a proposed five storey building next door to this review site at 79-81 Asling Street, Brighton. The following reasons are recorded in that decision:[9]

Local policies[10] variously refer to the 'village feel' of activity centres in Bayside as a strength and the desirability of enhancing the 'village focus'.

The absence of any clear definition of what is meant by the term 'village' in the context of planning scheme policies, poses some difficulties in understanding what is intended by these references.

It is also relevant, as pointed out by Mr McGurn, that the vision for this activity centre at Clause 21.11-7 makes no reference to the term 'village' nor is it expressed anywhere in this policy. Moreover, this term is used to describe the Sandringham Village - a major activity centre where buildings at a height of 5 storeys are envisaged.

Therefore, in relation to at least the question of height, I do not think that policy references to the term 'village' are particularly helpful and nor can they be relied upon to conclude that a 5-storey building would be unacceptable in the Martin Street Activity Centre.

1. We agree with and adopt these reasons in this present case, and also do not find the policy reference to a 'village feel' to be a defined and thus a helpful term or policy intent.
2. Having regard to the whole of policy, we consider that there is a clear and consistent message that large consolidated sites such as this within a large neighbourhood activity centre and an identified residential opportunity area, that is within 200 metres of a railway station, is suitable for higher density housing. We therefore consider that a building of the scale of five storeys, as proposed, is entirely consistent with this policy intent. Adding extra emphasis to the need to responsibly maximise the housing opportunity provided on the review site, is the fact that much of the land within the residential opportunity area that surrounds the Gardenvale Railway Station, including parts of the Martin Street Neighbourhood Activity Centre, are constrained by the Heritage Overlay. The land so covered by the Heritage Overlay may have difficulty contributing in a meaningful way to the increased and more diverse housing that the Bayside Municipal Strategic Statement so clearly calls out for. Those sites outside of the Heritage Overlay therefore need to undertake more of the 'heavy lifting' required to achieve the relevant policy. This only further clarifies for us the important role that the review site plays in providing additional and more diverse housing opportunities for this local community.
3. Of course both State and local policy also seek to achieve outcomes in addition to urban consolidation and more diverse housing. It also seeks to protect residential amenity, and ensure that new development responds to neighbourhood character. In this context of a 'large' neighbourhood activity centre within a residential opportunity area, the character that is sought to be respected is the future character of larger built forms that realise the development opportunity identified in both State and local policy. That future character is symbolised in this Neighbourhood Activity Centre by the approved 5 storey development on the land immediately adjacent to the east of the review site. For the reasons we set out in the following section, we find that the proposed built form is an appropriate response to this emerging future character. We consider it relevant to have strong regard to this adjacent approved but not yet built 5 storey form at 79-81 Asling Street, as on our site inspection we noted that all but five of the proposed 47 dwellings have been sold, according to the information in the display suite on site. This not only indicates a strong likelihood that the development will proceed, but also that a strong demand exists for this form of housing in this locale.
4. The final piece of the policy jigsaw is that relating to the protection of residential amenity. In this context such policy takes on a fine balance, given that it needs to be assessed against the overall policy framework which encourages the development of higher density housing in this locale. Therefore, any assessment of the impact on residential amenity needs to be conducted in the framework that a large building is appropriate for the review site. We undertake an analysis of the built form below, and find that the balance has nearly been struck in an appropriate manner in this proposal. With one minor change to the proposed setbacks from the residential interface, we find that the proposal will result in an acceptable impact on residential amenity, while realising the development opportunities presented by the review site.
5. For these reasons we find that there is strong policy support for the proposed development.

1. The Council and residents expressed concerns regarding three key facets of the proposed built form, those being:

1. The overall height of five storeys; 2. The height of the street wall and the extent of built form visible from Martin Street; and,

1. The setbacks and extent of built form visible from the residential interface to the rear of the review site.
2. None of the parties expressed any concern regarding the architectural quality of the proposed built form, overlooking, overshadowing or equitable development.
3. The Tribunal reviews higher density larger buildings on a regular basis and it is often suggested to us that such buildings are overdevelopments because their designs push the boundaries of planning policy and, as a result, their context. This is not such an example.
4. Both Mr Sheppard and Ms Heggen analysed the design response and they both opined that the design response was a good one. Mr Sheppard succinctly distilled his evidence into Preferred Future Character, Off Site Amenity, Equitable Development and Public Realm Amenity. This proposal has responded to each of these areas expertly and appropriately. This proposal is a refreshingly considerate design response.
5. The built form to Martin Street is an appropriate mid block response that makes a well-conceived transition between the approved building on the corner site and the context to the west including the edge of the activity centre. The three level street wall is not significantly higher than the two level street wall to its west and, in any instance that site could be redeveloped in the future. Further to the west is a panel beaters with again a high two storey form. The first property in the Residential 1 Zone is a two storey form raised above a part basement car park, and the next dwelling along to the west presents almost as high again to the streetscape.
6. In this context, the submission from Council that a two storey street wall should be developed on the review site is illogical. It would place the street wall of this strategic redevelopment site lower than the older two storey forms on the adjoining commercial properties to the west, and lower also than the residential development on the nearby interface. Instead, we consider that there is strong merit in the proposed three storey street wall, with an exposed fourth storey, which will provide a street wall consistent in height with the redevelopment of the corner site to the east, while being only marginally higher than the broader context to the west.
7. Mr Kane submitted that the third floor is not sufficiently recessive and that the fourth floor should be deleted altogether because it is too high. From Martin Street, the third floor is set back 5.0m and is contrasted in colour and the fourth floor is barely visible. The setbacks, as described by Ms Heggen, are more recessive that those of the corner approval and this is a balanced solution. For these reasons we support the proposed height of the street wall, and the setbacks from Martin Street of the levels above.
8. We now turn to the overall height of the building, at five storeys. The fifth storey will not be visible on views from Martin Street opposite the review site. From the corner of Martin and Asling Streets, both the fourth and fifth storeys will be visible until the corner site is developed but we do not consider this visibility, in itself, to be problematic. Similar views will be gained from Martin Street further west of the review site. The architecture is appropriately composed and articulated and the setbacks are such that these elements are secondary to the lighter three level building base. Further, the setbacks eliminate any amenity impacts and the fifth storey is likely only to be seen from longer distance views along Martin Street, or Asling Street to the east.
9. From the rear, views to the fifth storey will be obscured by the levels below when viewed from the immediately adjacent properties. Longer ranges views, such as those from the public realm in Westley Avenue, will reveal the fifth storey. However such views will be at some distance, and will also include views to the five storey approved development at 79-81 Asling Street. Views to buildings of this height must be a reasonable expectation, in streets that are adjacent to activity centres with the policy framework that applies here.
10. For these reasons we find that the overall built form is well composed, and this five storey building is an appropriate built form response to its context.
11. In terms of equitable development, the west and east profiles are respectful of existing, approved and possible future development. Whilst the eastern interface to the approved corner building is quite close over the right of way, it is a known future interface. The staggering of balconies and living rooms and the setting back of living room windows 4.5m from the centre of the lane is to match that of the corner site, providing a 9.0m separation of living areas. Clearly, this is a considered response that we find acceptable.
12. To the west, there is landscape buffer at the ground floor, 4.5 m setbacks to living rooms at the first floor increasing as the building rises, and breaks in the balconies to provide separation and light. We consider that an equitable sharing of development potential with the adjoining property to the west results from the range of setbacks employed. In short we are satisfied that if the adjoining property to the west were developed with a similar built form, then the proposed apartments on the review site would maintain an adequate access to both daylight and sunlight, as well as ventilation.
13. We now turn our minds to the residential interface to the south of the review site. This is often a difficult matter to assess, given the contrasting expectations of owners of residential and commercial properties. Our starting position is that residential properties at the interface to large strategic redevelopment sites in a Neighbourhood Activity Centre must reasonably expect to have a view of built form. The question for us is to what extent of built form is reasonable. It is however beyond question that a level of amenity that is enjoyed by residential properties that abut other residential properties, is not a reasonable expectation in this context.
14. The approach to take was clearly set out by the Tribunal in the decision of Buckerfield Architects v Boroondara CC[11], where the Tribunal remarked:

I refer back to my earlier comments about the appropriateness of using this site for a commercial building and the inevitability of such an outcome given the zoning of the land and the strategic direction in the MSS. I agree with Mr Bisset that in an interface situation such as this there are competing objectives on either side of the residential / commercial divide and that a proper planning outcome is one which balances those competing objectives taking into account all of the opportunities and constraints of the site and its neighbours. Inevitably compromises will have to be made to reach an acceptable outcome which satisfies those competing objectives. The commercial site cannot ignore that they have a residential abuttal; nor can a residential property expect the sort of residential amenity one would anticipate in an area wholly zoned for residential purposes.

I approach the task therefore of the interface issue not with a view to achieving a perfect residential amenity outcome; nor a perfect commercial outcome. If it were that simple I could favour one over the other and (say) allow a box like office building on the boundary with extensive windows as might be found in a wholly commercial area. Or I could favour a one storey commercial building well offset from the boundary with a "forest" as a buffer in deference to residential amenity. Rather, I must look for a balance which satisfies the "reasonable expectations" of all parties.

1. Despite our favourable overall response to this application, whilst we can see that an attempt has been made to address the direct residential interface to the south, we don't think it has gone far enough. During our inspection, we were able to view the site from the back yard of 4 Westley Avenue, being the most sensitive interface. We conducted this inspection with the permission of the tenants of that property. We agree that that the almost two-storey high south wall will be mostly obscured and well screened by vegetation and outbuildings. However, over that wall, the development is quite close and will be visually prominent. Whilst we acknowledge that a further setback of the second floor will expose more of the third floor, we can see from this property that it would benefit from a little more visual breathing space. We are accepting of the 6.24m setback of third floor and have conditioned the permit to provide a roughly half, 3.0m setback, to the second floor. This minor modification will bring this aspect of the building into acceptability. As a result of this modification, we find that the proposed development will not cause unreasonable built form impacts to the closest property at 4 Westley Avenue.
2. Our finding above extends to the other properties that are also positioned along this interface. The property at 2 Westley Avenue will have a more limited aspect owing to the 2.6 metre high fence along its northern boundary, above which is growing a row of what appears to be bamboo. Further, the property at 2 Westley Avenue has only part of its northern interface aligned with the review site, with the remainder aligned with the laneway and the rear of 75 Asling Street. We are satisfied having regard to this context that while the proposed building will be clearly visible from the rear yard, and north facing windows of 2 Westley Avenue, that an unreasonable view of built form will not occur. The increased setback we have required to the second floor will also be of some additional benefit to this property as well.
3. Other residential properties are further separated from the review site, with the next closest to the south-west separated by a garage in its rear yard. We therefore find that there will not be unreasonable levels of scale and bulk visible to the surrounding residential properties.

Will there be any unreasonable off-site amenity impacts?

1. Off site amenity impacts are generally measured in terms of visual bulk, overlooking and overshadowing. As we have addressed visual bulk above, we now need to consider the overlooking and overshadowing impacts to the residential properties to the south of the review site.
2. Shadow diagrams submitted with the plans demonstrate that, at the equinox, the shadow from the proposed building will fall mostly within the shadows currently cast by the fencing on the northern boundary of the adjacent residential properties and any intrusions are negligible. As such, the proposed development will not result in anymore than a negligible increase in shadows to these adjacent residential properties at the equinox. Of course, we expect the situation to be much worse in winter, and better in summer. However the Bayside Planning Scheme directs us to assess the shadow impact having regard to the shadows at the equinox, representing the mid point between the best and worst shadow outcomes for the year. Based on this assessment, we find that the proposal achieves a very good outcome for the adjacent residential properties.
3. Overlooking is to be addressed by the application of obscure glazing to all south facing windows at first and second floors, to a height of 1700mm above the respective finished floor levels. This will ensure that future residents of the apartments on these floors will need to look up from these windows, and will not be able to look down into the nearby residential properties. This is an appropriate method under the Bayside Planning Scheme to address overlooking, and we are satisfied that the technique has been appropriately applied in this design.
4. For these reasons we find that there will be no unreasonable levels of off-site amenity impacts as a result of the proposed development.

Is an appropriate level of internal amenity achieved?

1. The parties raised no concerns relating to internal amenity. We however had some questions for the expert witnesses that arose out of concerns following our review of the plans. Our first concern was in relation to the layout of apartments 206 to 211 inclusive. At 46 square metres in size these are small one bedroom apartments, which have been designed in a manner where each of the single bedrooms are provided with a narrow 'sleeve' providing direct daylight into each bedroom. As a result, the living areas to each of these apartments are relatively tight.
2. We think that a better outcome would be to remove each of the 'sleeves', thus making the bedrooms rely on borrowed light, but also making the living areas much larger and more usable. We will implement that outcome by way of conditions. Member Deidun has recently conducted a site inspection of some completed apartments that had bedrooms that relied on borrowed light. As a result of those observations, we feel it appropriate to require by way of conditions that the glass panel providing for the access of daylight to the bedroom have at least some component that is of clear glazing. We understand that some parts of the glass panel may need to be obscured for reasons of privacy between the living area and the bedroom, but the example which was inspected demonstrated that a glass panel of entirely obscured glazing means that very little daylight is received in bedrooms that rely on borrowed light. Alternatively we would also be satisfied if the bedrooms the rely on borrowed light were provided with the openable wall/door panels that are presently shown in Apartments 102, 103, 202 and 203.
3. We also questioned Ms Heggen regarding the layout of the fourth storey, where the second bedrooms of three apartments have a window to a corridor, which is open in part to the weather elements. Having been taken through the detail of that arrangement, and considered the alternative design options, we are satisfied that no change is required to the proposed layout. The bedrooms have highlight windows and so will not have their privacy compromised. Further, the open corridor will allow a good level of cross ventilation to be experienced by the fourth floor apartments, while the corridor will not be too exposed to the elements, orientated as it is on the east side of the building, and partially enclosed with a roof as well as walls to the north and south ends.
4. In terms of the other apartments, we are satisfied that the proposal will achieve a high level of internal amenity. We make this finding on the basis of the size and orientation of the balconies, the internal planning in each of the apartments, the absence of any apartments with solely a southern orientation, the good daylight access to all rooms, and the extent of storage and bicycle storage facilities in the basements. We also consider that the location of the site, as it is in a Neighbourhood Activity Centre with good access to a train station, schools and parks, will provide a high level of amenity for future residents.

Does the proposal appropriately provide for car parking and traffic movements?

1. Mr Kane for the Council submitted that activity centres across the municipality are experiencing a shortage of car parking. As such he submitted that the proposed development should not be granted a reduction for the amount of car parking provided on site. Mr Scott's written submission, presented by Mr Tonkin, also raises a concern regarding the inadequacy of car parking being provided on site, and the already high level of on-street car parking being experienced in this neighbourhood. Mr Scott also raised a concern with the increased traffic levels, and thus increased congestion in the surrounding road network. The statements of grounds lodged by other residents supported these submissions.
2. The development comprises a mixture of 51 apartments, 12 offices and a food and drink premise (café). Applying the car parking rates found under Clause 52.06 of the Bayside Planning Scheme, this mix of uses generates a requirement for 97 car parking spaces. The development proposes to provide 84 car parking spaces on site, and thus seeks approval for a reduction of 13 car parking spaces. The development seeks to provide for all of its long term car parking needs on site. These include the car parking requirements for residents, office workers and café staff. In addition, it is sought to provide four of the required visitor car parking spaces on site. However the remainder of the visitor car parking is not proposed to be provided on site. As such, the demand created off-site for car parking will be for short term spaces, for people visiting the dwellings, offices and café.
3. In addition, one on-street car parking space will be lost to provide for the new accessway to the basement car park.
4. There are a number of relevant factors that weigh in favour of allowing a reduction in the on-site car parking provision:

1. The site has excellent access to public transport, including a 200 metre walking distance to the Gardenvale Railway Station. It is therefore likely that the number of people using private vehicles to access the site will be lower than the standard requirements set out in the Bayside Planning Scheme; 2. A survey of the surrounding streets has been undertaken to assess the current availability of car parking. This has revealed that within a 200 metre walking distance of the review site, there were always at least 81 short term vacant car spaces available on street. This is more than sufficient to supply the up to 14 car spaces that the proposed development is short.[12]

1. The range of uses on site will be unlikely to generate their peak visitor demands at the same time on any given day. For example, the demand for car parking from visitors to the dwellings will peak after business hours and on weekends, whereas the peak visiting times for the offices will firmly be within business hours during the week. In addition, the café is likely to provide a proportion of its business to people who are already in the area doing their shopping and other local business. This is particularly the case given the café is not proposed to be open for dinner. It is therefore highly unlikely that the proposed development will generate the peak demand for 14 car parking spaces on street at any time, as this would require the demand for visitor car parking for the dwellings, offices and café to all peak concurrently.

1. The land is currently used for a range of uses which generate a parking demand of 41 car parking spaces, and only seven car parking spaces are currently provided on site. As such, the demolition of the existing building will actually result in an increase in the supply of vacant on street car parking, particularly in the evening when the existing squash courts on site are used to their peak capacity.
2. For these reasons, we find it appropriate to approve the reduction in car parking that is sought from this proposed development. We note that a further relevant factor is the reduction of car parking that was approved for the development at 79-81 Asling Street, which will result in a peak demand for an additional eleven on street car parking spaces during business hours, and 21 in the evenings. This would still result in a supply of 72 vacant car parking spaces during the day, and 89 in the evening, based on the survey undertaken of available car parking within 200 metres of the review site. That is even before the existing uses on the review site are ceased, which currently contribute in a significant way to the demand for on-street car parking. We therefore find that the reduction provided for the development at 79-81 Asling Street does not change our earlier finding, that the proposed development does not need to provide any additional on-site car parking.
3. In terms of traffic movements, the proposed development will create 26 vehicle movements in the peak hour, or less than one traffic movement every two minutes. The rate of increase in traffic movements reduces when one factors in the existing uses of the site which will cease, and the traffic they currently create in the surrounding road network. It is the evidence of Mr Kiriakidis that the surrounding road network will be able to accommodate this modest level of traffic increase. The evidence of Mr Kiriakidis in relation to traffic levels from the development was not challenged by the parties. We therefore need to give the evidence of Mr Kiriakidis in relation to that issue significant weight. Further, that opinion has been supported by the independent assessment undertaken by Council's traffic engineers, the result of which is reflected in Council's position to not oppose the proposed development based on traffic grounds (as opposed to car parking).
4. In the face of the expert evidence, and Council's own independent assessment, there needs to be submissions that are evidence based and which highlight significant deficiencies to prevail on traffic grounds. The submissions we received raise concerns regarding traffic levels, without providing any specific quantifiable material or actual examples. As such, we must accept the evidence of Mr Kiriakidis, supported by the independent assessment of Council, and find that there will be no unreasonable traffic impacts as a result of the proposed development of the review site.
5. The final aspect of the permissions sought by this proposal is the waiver of the loading bay required for the café. We agree with the sensible assessment undertaken by Council, that the loading requirements of a single café do not necessitate the provision of a separate loading bay on site, especially when more than adequate on-street loading facilities are provided within the Neighbourhood Activity Centre. For this reason we will support the proposed waiver of the loading bay requirement.

1. A number of other matters about permit conditions were raised by the parties. With respect to those matters, other than those already addressed above, we summarise our conclusions as follows:

1. A number of parts of the amended plans conditions sought certain design standards to be achieved by the basement car parks. It is the evidence of Mr Kiriakidis, which was agreed to by Council, that these various design standards had been already achieved. On that basis the conditions were not opposed. One such example is a condition requiring the ramp grades to comply with Clause 52.06, which the ramp grades already comply with. We are of the view that an amended plans condition should only deal with matters where an actual change is required to the plans, not list requirements which are already met. We will therefore delete requirements that have already been met, or where no added notation is required on the plans to ensure an appropriate outcome. 2. We will similarly not support the condition requiring a splay on the western side of the accessway, as we consider that the glazed windows to the café will adequately provide for observation of pedestrians on the footpath.

1. There was agreement, following the evidence of Mr Kiriakidis, that the required opening for the roller door to the basement should be reduced to 5.81 metres. We will implement that agreed position in the conditions.

1. We have been persuaded by Mr Kiriakidis' evidence in relation to the appropriate basement head heights, and so will implement his recommendations in the redrafted Condition 1(i). 2. There is also a need to draft a subset of the amended plans condition to leave open the possible need to slightly redesign the electrical substation so that its access doors face north. We consider that to be an acceptable outcome. However we note that it will require the relocation of the visitor bicycle racks, and the proposed new location handed to us at the conclusion of the hearing, which is hidden down the laneway, is not to us an acceptable outcome. We will draft the condition in a way which allows Council and the Applicant to resolve an appropriate location for these bicycle racks, on the basis of our opinion that they need to be visible from the Martin Street footpath. 3. Mr Gobbo opposed the condition drafted by Council which seeks to limit the capacity of the café to 60 seats. He opposed this condition as the car parking analysis was undertaken on the basis of the floor area, not the number of seats, and therefore the number of seats was irrelevant to the car park assessment. Firstly, we think that the submission is flawed, as clearly the number of seats and therefore the number of patrons allowed in a café will have a direct relationship to the number of car parking spaces required for that use. Secondly, we are concerned that the Applicant's opposition to this condition was only raised at the conclusion of the hearing, and therefore after we had the opportunity to put questions to Mr Kiriakidis in relation to this matter. For these reasons we find it is appropriate that a limit to the number of seats or patrons be applied to the café, and we have not been persuaded that 60 is not the appropriate number. In the event that the Applicant is concerned that 60 seats is not sufficient to ensure the ongoing viability of the café, that would appear to us to be reasonable grounds on which to review the Condition in question. That can be done through an application either under Section 72 or 87A of the Planning and Environment Act. At the time of any such application, a fuller assessment of the implication of an amendment to that condition can be undertaken. 4. Condition 18 as drafted by Council requires an on-site stormwater detention system to restrict drainage flows to the pre-development levels. However the review site is currently completely developed with either buildings or hard paving. Logically there would therefore be no increase to the pre-development flows arising from this development. Indeed the addition of modest landscaping areas to the review site as depicted in the plans before us may actually slightly reduce the flows leaving the review site. We therefore think that Condition 18 should be reworded, so that the installation of a stormwater detention system is not mandatory. 5. We will make other editing changes that were agreed to between the Applicant for Review and Council.

1. For the forgoing reasons the decision of the Responsible Authority will be set aside.

The construction of buildings and works associated with a mixed use building, reduction of the standard car parking requirement and waiver of the loading bay requirement in accordance with the endorsed plans.

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:

1. Provision of a 3.0 metre setback from the southern boundary of the review site to the second floor; 2. Inset the southern wall of the internal corridors of levels 2 & 3 so that it is setback a further 1.8 metres each, compared to the relative setback of the remainder of the southern walls at these levels (as has occurred on the first floor);

1. If required by the relevant authority, the plans may be amended to provide for the ground floor substation doors to open along its northern wall, rather than along the wall facing the laneway. If this is to occur, then the visitor bicycle racks may be moved to another location on the ground floor where they are visible from the Martin Street footpath for visitors to the site;

1. Deletion of the 'sleeve' providing direct daylight to each of the bedrooms to apartments 206-211 inclusive, which will allow an increase in the size of the living area to each of these apartments, and necessitate the provision of a glass panel providing borrowed daylight to each of these bedrooms, at least part of which must be clear glass, or the provision of an openable panel wall/door that faces the source of daylight; 2. the locations of all plant and equipment including air conditioning units and condensers, substantially screened from public view to the satisfaction of the Responsible Authority, including design details, materials colours and finishes of screening devices; 3. The disabled space and 'shared zone' need to be installed as per AS/NZS 2890.6:2009 requirements; 4. Column setbacks (to each side of the columns) should be dimensioned on the plans; 5. The panel lift door securing the basement car park must be a minimum opening width of 5.81 metres; 6. Basement height clearances must be specified on the plans, taking into account any overhead obstructions that may exit e.g. lights, pipes, ducts etc. The relevant requirements are, unless otherwise agreed by the Responsible Authority: 1. General traffic - 2.1m 2. Path to/from disabled spaces - 2.2m 3. Above disabled spaces - 2.5m or otherwise in accordance with AS/NZS 2890.6:2009 requirements. 4. Path to/from bicycle spaces - 2.2m

A cross section must be provided to demonstrate the height clearance above the ramp between the lower and upper basement levels.

1. Signage to be provided which directs visitors to the designated parking spaces;
2. A Car Parking Management Plan in accordance with Condition 10;

1. A Construction Management Plan in accordance with Condition 11;

1. A Waste Management Plan in accordance with Condition 14;
2. A schedule of construction materials, external finishes and colours (incorporating two (2) paint samples).
3. A landscape plan in accordance with Condition 12 of this planning permit.
4. Water Sensitive Urban Design measures as required by Condition 20.

1. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
2. Before the occupation of the building commences or by such later date as is approved in writing by the Responsible Authority, all buildings and works and the conditions of this permit must be carried out and completed to the satisfaction of the Responsible Authority.
3. The cafe use must not open any later than 6pm Monday-Sunday.
4. No more than 60 seats may be made available at any one time to patrons on the premises of the cafe, without the written consent of the Responsible Authority.
5. The predominant activity carried out in the cafe during all trading hours must be the preparation and serving of meals for consumption on the premises.
6. All pipes, fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
7. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building without the written consent of the Responsible Authority.
8. The vehicular crossing leading into the site must be constructed to the road to suit the proposed driveway to the satisfaction of the Responsible Authority.
9. A car parking management plan must be prepared to the satisfaction of the Responsible Authority. When approved, the car parking management plan will become part of this permit. The use and development of the land must comply with the approved car parking management plan. The car parking management plan must show or include:

1. The location, designation and reservation of any staff, resident and visitor car parking spaces in the basement car park for that purpose; 2. The location and provision of bicycle parking facilities;

1. The provision of any statutory control signage and line-marking at the basement car park entrance and within the ROW at Martin Street required to ensure there is adequate and appropriate traffic delineation; and,

1. The adoption of measures considered adequate and necessary to encourage visitors of the development associated with residents and offices to fully utilise the car facilities and to discourage and prevent commuters or staff from other land uses in the area from using the basement car park as a source of all day car parking. These measures may include: 1. A security gate and associated intercom facilities; 2. Line marking; 3. Signage; and, 4. Time limitation.
2. Prior to the issue of a building permit for the development allowed under this permit, the applicant must submit to the Responsible Authority, a Construction Management Plan (CMP) for approval. Once approved, this plan will form part of the permit. This CMP must state that, unless otherwise agreed by the Responsible Authority:

1. Pedestrian access will be maintained at all times along the Martin Street footpath adjacent to the site; 2. The Martin Street footpath will not be obstructed during construction works; and

1. All site facilities will be located on site during the construction period.

1. All waste material not required for further on-site processing must be regularly removed from the site. All vehicles removing waste must have fully secured and contained loads so that no wastes are spilled or dust or odour is created to the satisfaction of the Responsible Authority. 2. All roads/storage areas/external stockpiles/vacant or grazed areas must be (covered and) maintained to avoid dust nuisance to any residential area to the satisfaction of the Responsible Authority. 3. A truck wheel-wash must be installed and used so vehicles leaving the site do not deposit mud or other materials on roadways to the satisfaction of the Responsible Authority.

The CMP must be implemented to the satisfaction of the Responsible Authority.

1. Before the developments starts, a landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and two copies must be provided. The landscaping plan must show:-

1. A survey (including botanical names) of all existing vegetation to be retained and/or removed; 2. Buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary;

1. Details of surface finishes of pathways and driveways;

1. Details of water sensitive urban design elements to be incorporated and the plant species to be used; 2. A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant; 3. Landscaping and planting within all open areas of the site. 4. Provision of an in-ground irrigation system to all landscaped areas.

All species selected must be to the satisfaction of the Responsible Authority.

1. Before the occupation of the development or by such later date as is approved by the Responsible Authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
2. A Waste Management Plan must be submitted to the Responsible Authority for approval. When approved, the plan will be endorsed and will then form part of this permit. The Waste Management Plan must include (but is not limited to), the following items:

1. Responsibility for collection by a private contractor and how collection of refuse and recycling materials will be managed; 2. Use of the western ramp/corridor to the ROW for bins in the commercial refuse room, including that no bins are to be taken outside through the northern and eastern corridors to Martin and Asling Street respectively;

1. The size and details of the waste collection vehicle to service the site;

1. The frequency and hours for the collection of all waste and recyclables; 2. The type of waste and recycling bins to be used; 3. Collection of waste to occur from within the site boundaries and that no bins will be left on the nature strip for collection unless alternative arrangements are made to the satisfaction of the Responsible Authority; 4. Collection measures to minimise disruption to traffic flows within the site and on the surrounding road network; 5. Waste management arrangements for the restaurant/café including the location of bins; and 6. Any other relevant matter.
2. The approved Waste Management Plan must be implemented to the satisfaction of the Responsible Authority.
3. Waste storage areas must be kept in a clean and tidy condition and free from offensive odours, to the satisfaction of the Responsible Authority.
4. Before the development begins, three copies of detailed plans indicating the method of stormwater discharge to the nominated point of discharge must be lodged with Council's Asset Management Department for approval. Connection of the drainage system to the development must be to an existing legal point(s) of discharge. If the point of discharge cannot be located then the applicant may apply for a legal point of discharge and local drain information, if available, otherwise on site verification should be undertaken by the applicant.
5. Stormwater discharge from the site is not to exceed the pre-development level of peak stormwater discharge. If the development is to have a 'Stormwater Detention System' installed to achieve this outcome, the design capacity is to be approved by Council.
6. All on-site stormwater is to be collected from the hard surfaces and must not be allowed to flow uncontrolled into adjoining properties. The on-site drainage system must prevent discharge from the driveway onto the footpath. Such a system may include either:

1. A trench grate (150mm minimum internal width) located within the property; and/or 2. Shaping the driveway so that water is collected in a grated pit on the property; and/or

1. Another Council approved structure, layout or equipment.
2. Before the commencement of works, detailed plans to the satisfaction of the Responsible Authority must be submitted to and be approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be in accordance with the guidelines outlined in Clause 22.10 of the Bayside Planing Scheme and must show:-

1. The type of water sensitive urban design stormwater treatment measures to be used; 2. The location of the water sensitive urban design stormwater treatment measures in relation to buildings, sealed surfaces and landscaping areas;

1. Design details of the water sensitive urban design stormwater treatment measures, including cross sections;

These plans must be accompanied by a report from an industry accepted performance measurement tool, which details the treatment performance achieved and demonstrates the level of compliance with the Urban Stormwater Best Practice Environmental Management Guidelines, CSIRO 1999. The water sensitive urban design stormwater treatment system as shown on the endorsed plan must be retained and maintained at all times in accordance with the Urban Stormwater - Best Practice Environmental Management Guidelines, CSIRO 1999, to the satisfaction of the Responsible Authority.

1. This permit will expire if one of the following circumstances applies:
   1. The development is not started within three years of the date of this permit.
   2. The development is not completed within five years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within six months afterwards, or within 12 months afterwards if the development commenced lawfully before the permit expired.

[1] We have considered all submissions presented by the parties although we do not recite all of the contents in these reasons.

[2] Clause 11.04-2 of the Bayside Planning Scheme.

[6] [2013] VCAT 488

[8] [2013] VCAT 2113.

[10] See for example Clause 21.06 and 21.07.

[11] [2004] VCAT 659.

[12] Taking into account also the loss of one existing on street car space to provide for the new accessway.