[2003] VCAT 1895

In permit application no. PP02/01167 a permit is not granted and no permit is to issue.

Mr M Wright QC and Mr A Finanzio of Counsel, instructed by Mr M Naughton of Minter Ellison Lawyers, appeared on behalf of the Applicant for Review. They called the following persons to give evidence:

s Mr J Talacko, sustainable development consultant.

Mr T Montebello of Maddocks Lawyers appeared on behalf of the Responsible Authority. Ms M A Taranto was also in attendance for part of the proceedings. Mr Montebello called Ms R Hansen, town planner, to give evidence.

Mr P Connor of Counsel instructed by Ms T Brezzi of Deacons Lawyers appeared on behalf of a large number of Respondent Objectors, as set out in a schedule tendered to the Tribunal. Mr N Bonnaci also presented an oral submission.

Mr B Merrick and Mr H Ng appeared in person as Respondent Objectors at various times during the Hearing.

The parties made written and/or verbal submissions and a number of plans, photographs and other documents were tendered to the Tribunal. All documentary material is retained on file.

Witnesses were made available for cross-examination.

The subject site and locality were inspected by the Tribunal on the morning of the second day of the Hearing and again subsequent to the Hearing. Two display suites were available for inspection on the review site.

1. This is an Application under Section 79 of the Planning and Environment Act 1987 brought by Duxwell Pty Ltd against the failure of the City of Boroondara ("the Council") to determine permit application no. PP02/01167 within the prescribed time. An Application for Review was lodged on 6 August 2003.

2. At the commencement of the Hearing, Mr Wright QC sought leave to substitute the plans submitted with the permit application with revised plans circulated in accordance with the directions given by Deputy President Horsfall on 17 October 2003. There being no objection, we granted leave pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") to substitute the plans identified as TP01RevA, TP02RevB, TP03RevD, TP04RevC, TP05RevF, TP06RevF, TP07RevF, TP08RevD, TP09aRevC, TP09bRevC, TP10RevD, TP11RevD, TP12RevD, TP13RevC, TP14RevC, TP15RevC, TP16RevC, TP17RevD, TP18RevC, TP19RevD, TP20RevD, TP21RevC, TP22RevC, TP23RevD, TP24RevD, TP25RevD, TP32RevC and associated elevations and images included in the booklet of plans and montages marked for identification on the Tribunal's file (noting that TP14RevC that was initially inadvertently omitted from the booklet).

3. The subject site is located on the south side of Barkers Road, east of the intersection with Power Street/Denmark Street. The site has a second frontage to Hawthorn Grove. The land is irregular in shape, being part of a former railway reserve. It has a frontage to Barkers Road of 72 metres, a frontage to Hawthorn Grove of 37.9 metres and a depth along the west boundary of around 137 metres. The site area is some 7,797 square metres.

4. The site comprises two lots. One lot is a former petrol station/car wash to the north-west of the site while the larger lot contains a single storey restaurant building facing Barkers Road and the California Motel. The reception area for the motel is contained within the building fronting Barkers Road that is a setback from the street by around 11.5 metres. The motel, with 82 rooms, was constructed in the 1960s and comprises several double storey wings located close to the east and west boundaries of the site. Those setbacks vary from 1-4 metres and 3.2 - 5.2 metres respectively. The setbacks from Hawthorn Grove are a minimum of 3.6 metres. The two storey buildings have a flat roof form and are around 5.4 metres in height.

5. The central part of the site is substantially paved and used for carparking. Paved parking areas and accessways extend along much of the site frontage to Barkers Road. There is a cyclone wire fence along the Hawthorn Grove frontage, partly covered with creeper.

6. The north side of Barkers Road opposite the review site is dominated by the grounds of Xavier College. The grounds include mature trees, high cyclone wire fencing and elevated ovals. School buildings are well setback.

7. Residential properties abut the western and part of the eastern boundary of the review site.

8. To the west, at Nos. 9 and 11 Hawthorn Grove, are single storey dwellings with open space abutting the common boundary with the subject site. No. 134 Barkers Road contains three single storey units with a driveway along the common boundary with the review site. To the east of the subject land are residences at Nos. 11 and 13 Hawthorn Grove. No. 11 Hawthorn Grove comprises two double storey units with a garage abutting the review site. No. 13 Hawthorn Grove is a single storey Victorian building with access via a rear right of way; the lane terminates at the review site.

9. Also to the east, at No. 140 Barkers Road, is a double storey building utilised as a medical centre. It is setback by 7.5 metres from Barkers Road.

10. To the south, on the south side of Hawthorn Grove, are the L E Bray Park (also part of the former railway land) and single storey Victorian dwellings at Nos. 22 and 22 Hawthorn Grove.

11. Barkers Road comprises a mix of dwelling types including single and double storey forms. There are some unit developments and some grand period homes. Hawthorn Grove is an outstanding heritage streetscape.

12. Barkers Road is a busy arterial. Parking restrictions apply along Barkers Road at nominated times. Hawthorn Grove is a local residential street with speed humps and speed restrictions.

13. It is proposed to develop the land for 129 units contained within a series of attached and detached buildings numbered 1, 3, 4, 5 and 6.

s Demolition of the existing buildings fronting Barkers Road, ie. restaurant, reception and petrol station/car wash.

s Construction of a new two, three and four storey building ("Building 1") along the Barkers Road frontage. The building would contain 41 units, in the form of 31 one bedroom units and 10 two bedroom dwellings.

s Retention and refurbishment of the remaining motel units for 88 bed-sitter units. Buildings 4, 5 and 6 would all remain as two storey while Building 3 would be extended by the addition of a third level comprising seven units to a maximum height of 9 metres.

s A notional area for a sub-station extending from Building 5 toward Hawthorn Grove, although no details are otherwise provided.

s Private open space generally provided in the form of balconies or ground level courtyards. A large central courtyard, for communal purposes, is also proposed.

s Provision for 103 basement car spaces and 45 ground level car parking spaces, with 62 spaces in the form of car stackers (ie. 31 stackers).

15. Access to the basement is proposed via an access point to the north-west of the site. Separate access is proposed to the at-grade spaces, through an entry/exit beneath part of Building 1. Pedestrian and emergency access is proposed to be available via Hawthorn Grove.

16. Building 1 has a maximum height above ground level of 13.9 metres. Materials and finishes to the new Building 1 would include manganese brick wall cladding with banded courses. Zinc wall cladding to the upper levels is proposed and painted wall cladding. The refurbished buildings would include render finish to external walls, texture base sheet cladding to parapets and vertical elements, metal deck roofing and face brickwork. Timber balustrades and fence elements are intended.

17. A landscape plan forms part of the application material. Some documents show a brush fence to Hawthorn Grove although it was confirmed by Mr Wright that the proposal is for a 2 metre high corrugated iron fence with timber capping consistent with the substituted plans. That fence would have pedestrian and emergency vehicle access available.

18. Building 1 would be setback behind the area affected by the Public Acquisition Overlay. The setback for units in Building 1 is around 2 metres, measured to the edge of the fencing associated with ground level units.

19. The subject site is zoned Residential 1 under the provisions of Clause 32.01 of the Boroondara Planning Scheme ("the Scheme"). A permit is required to develop the land for multiple dwellings. The refurbishment of the existing motel units, and third level addition to Building 3, must be assessed against the provisions of Clause 55 in addition to the State and Local Planning Policy Frameworks. Building 1, being 4 storeys, is not required to be assessed under the provisions of Clause 55.

20. The southern portion of the subject site is located within a Heritage Overlay (HO152 Grace Park and Hawthorn Grove precinct) pursuant to Clause 43.01. A permit is required to demolish an existing building and to construct a building and carry out works. Decision guidelines are set out in Clause 43 and have been considered by the Tribunal. Several documents relevant to a heritage assessment are incorporated in the Scheme pursuant to Clause 81, including "Design Guidelines" Hawthorn Heritage Study, 1993, Vol. 1A, Chapter 6, Hawthorn Development and Design Guidelines, 1987 and Hawthorn Heritage Guidelines 1994 (Revised January 1996). Copies or extracts of these documents were tendered by various parties.

21. Part of the site frontage to Barkers Road is included in a Public Acquisition Overlay. The Overlay has an angled alignment, widening toward the north-western boundary. A permit is required for any works within the Overlay area. VicRoads has offered no objection to the proposal and has suggested that parking restrictions opposite the site in Barkers Road be extended.

22. Clause 19.03 sets out design principles that are required to be taken into account particularly in relation to Building 1 which is not assessed pursuant to Clause 55. As relevant to the Application, those principles include consideration of the site context, the public realm, landmarks, views and vistas, pedestrian spaces, heritage, energy efficiency, architectural quality, landscape architecture, light and shade and consolidation of sites.

23. Car parking requirements are set out at Clause 52.06 Scheme. Specific requirements apply to dwelling that are relevant to Building 1, whereas the remainder of the development is required to be assessed pursuant to Clause 55. Based on this application, the Council's assessment is that 188 car spaces would be required. [If applying Clause 55 to the whole development, 148 spaces would be required].

24. The decision guidelines of Clause 52.06-1 require a range of matters to be considered if a permit application seeks to waive or reduce the parking requirement. Those matters have been considered by the Tribunal.

25. Pursuant to Clause 52.29, a permit is required to construct or alter access to a Road 1 Zone. VicRoads comments were sought by the Council in relation to the permit application and have been noted above.

26. Clauses 14, 15.11, 15.12, 16, Clause 21 (Municipal Strategic Statement), Clause 22.03 (Car Parking Policy), Clause 22.07 (Neighbourhood Character Policy that applies to all residential development in the municipality) and Clause 65 (general decision guidelines) are relevant and have been taken into account by the Tribunal.

27. The review site is within Character Area 71 in the Council's Urban Character Study, a reference document in the Scheme.

28. Melbourne 2030 has been taken into account by the Tribunal. We note that the nearest major activity centre to the review site is Kew Junction. Other retail precincts in the area are in Glenferrie Road and at the intersection of High Street/Barkers Road.

29. Another division of the Tribunal in O'Connell Street Developments Pty Ltd v Yarra City Council [2003] VCAT 448 has recently considered the legal question as to the status of Melbourne 2030. We do not need to go to the Tribunal's reasons in detail.

30. Suffice to say that we adopt the Tribunal's finding that Melbourne 2030 is an adopted strategic plan to which the Tribunal must have regard pursuant to Section 60 of the Planning and Environment Act 1987. The Tribunal must give greatest weight to the provisions of the Planning Scheme as it exists at the date of its decision and in giving weight to the policies in the Scheme must have regard to Melbourne 2030. It is important that a decision by the Tribunal does not undermine the policies of Melbourne 2030. It is often necessary to balance the various policy objectives. Critical policies in relation to the current Application include (but are not limited to) housing, neighbourhood character and heritage.

31. We have considered the submissions and evidence presented and have inspected the site and locality. We do not recite all of the submissions, expert evidence and tendered material, as the documentary material is retained on file. We set out our findings in relation to the key issues which are:

s whether the proposal is an acceptable response in terms of character of the surrounding area having regard to the applicable planning policies.

s whether the proposal is acceptable in terms of the provisions of the Heritage Overlay and notably the Hawthorn Grove streetscape.

s whether the access and parking arrangements are acceptable.

s whether the proposal results in unreasonable off-site amenity impacts.

s whether the proposed units achieve an acceptable level of internal amenity.

32. We first address policy considerations relating to the proposal and specifically housing objectives.

33. In addressing these matters, we emphasise that we must consider whether the Application before us is acceptable in terms of the policies and decision guidelines of the Boroondara Planning Scheme, as required by Clauses 31 and 41 and embraced fully at Clause 65. It is not our role to find the best solution for any redevelopment of the subject site. That should not be confused with statements sometimes made that the Tribunal must seek the right or best decision on the Application before it. That proposition relates to the proposal actually under consideration and does not relate to other possible development options as that would be to consider other applications rather than the one made.

Suitability of the Site for a Major Housing Proposal and Residential Mix

34. We accept Mr Wright's contention that there is an existing policy basis to allow a significant development on the review site, given the size and physical circumstances of the land.

35. The subject site is very large compared with other properties nearby and has a substantial frontage to a main road. For those reasons, it is ideal for a significant residential redevelopment as it has the potential to minimise off-site amenity impacts while achieving a significant density of persons residing on the land and/or dwellings or units.

36. The land has other attributes which make it a candidate site for a significant residential-based scheme. These include its zoning, the absence of vegetation, no awkwardly positioned easements, the availability of all infrastructure services and the absence of buildings which need to be retained for heritage reasons. Only part of the land is within a Heritage Overlay.

37. Having said that, it is also relevant that the site is not on a corner, is not within an identified redevelopment or higher density housing area, and is not within or adjacent to an activity centre, which are typically locations where more intensive forms are directed or encouraged.

38. Indeed, much time was spent during the Hearing on the proximity, or separation, of the subject site from an activity centre. The subject site is beyond 500 metres from any retail premises or tram/train services. There are retail and community facilities at Kew Junction and in Glenferrie Road, Hawthorn, around 1 - 1½ kilometres to the north and east/south-east as well as facilities to the west at the intersection of Church/High Streets and Barkers Road. The site does not, therefore, attract some concession or bonus in terms of activity centre policies.

39. Many comments were made during the Hearing about the nature of the use, in particular, the size of the proposed dwellings and lack of diversity in unit forms. The proposal involves units of a style and in a location that is unusual in suburban Melbourne. Bedsitters, per se, are not uncommon - early examples can be readily found in older style flats in suburbs such as St Kilda, Elwood and East Melbourne, often with no private open space. Studio apartments are a more recent name for essentially the same product. The proposed small units are some distance from an activity centre or facilities such as a tertiary institution. We are not persuaded that renders the proposal unacceptable, rather, we are satisfied that the units would assist to add to the mix of housing styles and forms in this area as is a consistent objective in the State and Local Planning Policy Frameworks and a purpose of the Residential 1 Zone.

40. We note Mr Salt's evidence in relation to the changing demographic profile of residents within Boroondara and adjacent municipalities. We are persuaded that there is an economic rationale to the proposed unit mix in so far as a specific market gap or niche is sought to be targeted. It is obvious that the units would not suit all single person or small households but we are persuaded that they would be serviceable for those who choose such accommodation for various personal, lifestyle and/or economic reasons. In recognising that single person households are increasing, other than some census data for 2001 there is limited evidence before us as to the current mix of housing stock in Boroondara and nearby areas and whether the gap is being filled by other projects. That is not, however, fatal to the Application.

41. We are concerned that planning objectives may not be adequately addressed by the limited mix in this major development. The converted motel units comprise 88 bedsitter units, essentially of a similar size albeit with varying open space opportunities. The new Building 1 proposes 31 one bedroom units and 10 two bedroom dwellings. Adapting the existing motel rooms may place a limitation on the unit mix, however, as observed by Ms Hansen, it would be possible to merge rooms vertically or horizontally. Arguably the unit mix in Building 1 is the more important consideration in this regard given that it is a new structure but provides only two unit types.

42. Clause 55 seeks a diversity of dwellings within larger developments. We do not find that to be an irrelevant consideration, as put by Mr Wright. Mr Clarke's evidence was that the standard is met and we understand the basis of his conclusion. While diversity must be considered beyond a single site, diversity within a development is reasonable for a proposal of this scale. Indeed, in so far as Standards B3 applies, it requires that "Development of more than 10 or more dwellings should provide a range of dwellings sizes and types...". The current proposal does not adequately achieve that objective in our view. Moreover, this is not a facility where limited unit types may be a function of the use, such as a nursing home or student accommodation. While the unit mix may not be a basis to reject the Application given the re-use of existing buildings on the land, it may be desirable for a greater variety to be contemplated in any revised proposal.

43. Before we turn to the merits of the proposal in relation to built form and urban design considerations, it is necessary to first consider the principle of adapting the existing buildings versus a new development of the whole of the land.

44. While many may prefer that the existing buildings be demolished and the site developed afresh, that outcome can not be dictated by this Tribunal. A substantial part of the proposal is based on the adaptation of the existing structures. That has some benefit in so far as it minimises the degree of change that may be experienced in streetscape terms. There are also efficiencies in doing so, as set out in Mr Talacko's evidence on the environmental benefits of recycling and adapting the existing buildings in contrast to demolishing the buildings and developing a new development of a similar number of units as proposed in Buildings 3-6 (without the third level addition to Building 3). Of course, demolition of all or part of the existing development may allow a better solution in heritage and streetscape terms but, as we have said, that is not something that we can direct.

45. In considering issues of built form in terms of streetscape and neighbourhood character, we have had regard to various policies set out in the Scheme. Clause 19.03 and other policies at Clause 21 encourage new development on large/consolidated sites to contribute to the "complexity" and diversity of the built environment. Clause 19.03 adopts the policy that site consolidation should not result in street frontages which are out of keeping with the "complexity" and "rhythm" of existing streetscapes. These are considerations that are most relevant to Building 1, which is a new structure ad is not required to be assessed against Clause 55.

46. We have had regard to policies that encourage the re-use of non-residential sites in addition to other objectives of ensuring that building mass and form is appropriate to nearby buildings, the neighbourhood and minimises off-site impacts.

47. We also have had regard to policies at Clause 22.07, for example, that encourage new works/alterations to complement the appearance of nearby dwellings, existing building styles and massing, as well as enhance the visual appearance of a site through landscaping. We note that the subject site is within Area 71 in the Council's Urban Character Study.

48. In acknowledging those policies, we note that there is policy support for a significant development on this land given the site's size and main road frontage and the key issues are the form and the intensity of the development. In saying that, we express our support for Mr Wright's contention that if Melbourne 2030 is to succeed, then there will be changes in form and fabric of existing urban areas. We have had regard to that, but do not give it over-riding weight. Rather, we are most significantly guided by the existing Scheme provisions and policies.

49. It is useful for the purposes of our review to separately consider the proposed new Building 1 and Buildings 3-6 that involve alterations and additions to the existing motel rooms. Although we make this distinction for ease, we have had regard to the development as a whole and the impact of all works proposed on the land.

51. The character of Barkers Road differs to the main road hinterland that is represented by streets such as Hawthorn Grove. Barkers Road is a setting where buildings are generally well concealed by landscaping or high fences. The exception is the subject site and to some extent buildings west of the review site toward Power Street. The character differs further again to the west. Opposite the subject site is Xavier College, with elevated sporting ovals, landscaping and fencing. Nearby dwellings toward the corner with Denmark Street are setback.

52. The proposal before us would represent a significant departure from the existing built form. That is primarily in terms of the building's breadth and height. The architecture would be different, as would the front setback for a multi-level building, particularly if the proposed road widening was to occur on the basis of the existing Overlay. The change in form is not necessarily fatal to the Application, as the site is large and can accommodate a substantial development. However, the policy framework suggests that there should be a reasonable degree of fit, there being no basis in the policies directing or supporting a more radical form despite the large site size and main road location. Mr Clarke addressed the policy framework but we note that the urban design evidence did not include any assessment of Building 1 against the policy framework of the Planning Scheme.

53. The Applicant's case focused on the transition achieved to the buildings to the east and west, with the higher element centrally positioned. It is correct to recognise the transition that is achieved to the edges of Building 1, with a single level difference between the medical centre to the east and single storey units to the west.

54. The plans show the level difference between the proposed development and the medical centre to be 1 metre. The height of the west elevation is around 7.3 metres, elevated by 1.1 metres above natural ground level. The western portion of the building would be stepped forward of the single storey unit and considerably higher than it.

55. Those edges may be acceptably treated but a more significant issue is the mass of the development across the site at the setback proposed.

56. The submission by the Council, and evidence of Ms Hansen, was that the development is inadequately recessed in its façade and should be broken up and recessed. Ms Hansen considered that a three level should be provided to the site frontage with the third level recessed. That was contested through the evidence of Ms von Hartel who considered that a proposal with separate buildings may produce a poor outcome and instead the proposed development represents a good solution for the review site with its large street frontage. Submissions by Objectors opposed a four level development on the basis that the form is uncharacteristic of the area and out of scale with other development.

57. We first state that we have no issue with the architectural composition per se. However, we are persuaded by the submissions and evidence presented by those opposing the Application that the substantial four storey form would rise significantly above other elements that may be read with the building. There is some area for planting to integrate the form with the landscape character that is evident, however that is relatively limited when taking into account the areas of private open space and the road widening reservation.

58. The building is articulated through modulation in the form and variations in materials and finishes. However, that is not adequate to produce a more comfortable fit. Breaking the building into sections would result in a less imposing form, with recessing the upper levels being essentially unachievable given the depth of the building. In saying that, we would have no issue with a development presenting as two or three separate building elements of varied heights and styles. Creating two, three or more separate buildings has the added benefit of removing any need for emergency access to be limited to Hawthorn Grove, allowing an improved fence design to Hawthorn Grove (without the need for some special treatment for emergency vehicles) and landscaping along the Hawthorn Grove frontage.

59. We are concerned about the gap in the streetscape created by the access point to the at grade parking, with a security boom gate. We are not persuaded that would allow any significant views into a landscaped area to the rear of the car park. Rather, it presents quite a commercial form and in our view detracts from the overall development.

60. The Public Acquisition Overlay is a constraint on the development to the front portion of the site. The prominence and forward position of the building would be exacerbated if that Overlay area was to be purchased and developed for road widening.

61. The new building (particularly at its western frontage) should have regard for the future alignment of Barkers Road and be positioned so that setbacks and open space areas are of a more consistent depth across the frontage adjacent to the Overlay area. Although the road widening may be many years away, the Overlay remains in the Scheme and must be taken into account in a design response.

62. Building 1 would be visible from Hawthorn Grove and other streets, such as Barkers Road. Hawthorn Grove is a wonderful heritage streetscape, although there are some more recent buildings in the immediate vicinity of the review site, including two and one three storey (albeit setback) elements.

63. Building 1 would present as a well recessed and background element in views from Hawthorn Grove. The height would appear incongruous with surrounding neighbours but that is not the most critical failing of this proposal.

64. Buildings 3-6, including significant landscaping, would reduce the visual impact of the existing structures. We find the changes to be an improvement compared with the existing mansard roof styling, resulting in a simpler treatment, as we discuss in more detail below in terms of heritage considerations. Colours associated with the building detailing could be resolved by way of a permit condition, as there was some criticism of the use of bright colours by Respondent Objectors. There was much debate about the proposed fencing, which we discuss below.

65. The key heritage issues focus on the visual impact of the development, being Building 1 and alterations associated with Buildings 3-6, and the proposed fencing and landscape treatment to the Hawthorn Road frontage of the subject site. In summarising the issues in this way, it is important to recognise that the Heritage Overlay applies to the southern portion of the review site only. That is, Building 1 does not require approval under the provisions of Clause 43.01.

66. The Hawthorn Grove streetscape is significant and has been recognised as being of metropolitan significance in the Hawthorn Heritage Study. As we have referred to above, Building 1 would be seen from the public realm of Hawthorn Grove and would present a scale and form that contrasts with the heritage place. However, given the distance from Hawthorn Grove, and the extensive screen planting proposed along the Hawthorn Grove frontage, much of the visual impact could be reduced. Having said that, a new building of a lesser scale would obviously have less visual impact, as would also be the case if an infill building was sited along the Hawthorn Grove portion of the site concealing views to development behind. This latter option was proposed in Ms Hansen's evidence and while potentially a good idea, it is not part of the current Application.

67. The plans show an area for a sub-station positioned forward of Building 5, within the setback to Hawthorn Grove. No details of the sub-station have been provided, and Mr Wright indicated that it could be deleted - a proposition we would support.

68. As we have said, we find that the changes proposed to the existing buildings would be some improvement coupled with the additional landscaping in place of existing paving to the southern portion of the review site. In that respect, this part of the development (excluding sub-station) is acceptable in terms of Clause 43.01 and relevant policies at Clauses 15 and 21.

69. A 2 metre high corrugated iron fence with timber capping is proposed along the southern site boundary. It would have gates allowing pedestrian and emergency vehicle access. We were advised that this form of fence was recommended by the Council's heritage advisor, and the Applicant would be happy for the Tribunal to nominate another fencing type if preferred. The evidence of Mr Raworth was that from a heritage perspective, the corrugated iron fence would be acceptable, as would other fence treatments. Mr Wyatt suggested that it would be possible to retain the existing vegetated fencing.

70. A number of fence treatments would be acceptable, whether retaining the existing fence, using corrugated iron or some other more permeable form. We have referred above to changes to the development that would not require emergency access via Barkers Road and that would in turn remove the need for knock-down fencing or some other form of treatment.

71. The submission by the Council considered that the number of car spaces required to service the development fell short of that necessary to cater for the demands created. The practicality of the car stackers was questioned. Mr Connor explained that local residents were also concerned that the lack of car parking and inconvenience of car stackers would result in additional overflow parking in Hawthorn Grove. That would be exacerbated by the desire by VicRoads to limit parking on Barkers Road. Mr Ng added that he was concerned that that would in turn result in increased use of the laneway with consequent nuisance and security risks.

72. In response, Mr Hunt gave evidence (inter alia) that the proposal can satisfy its own parking demands on-site, based on empirical evidence as set out in his statement. Mr Hunt also described the site's proximity to services as a factor in his assessment. He proposed that visitor car spaces be allocated in the at-grade car park.

73. We have had regard to the provisions of Clause 52.06, 55 and 22.03, as relevant to the proposal. The design provides 148 car spaces involving basement spaces (including car stackers) and at grade parking to the rear of Building 1.

74. We accept Mr Hunt's evidence that the number of spaces may be acceptable for a unit development although we have significant concerns about the extent to which the proposal relies on car stackers. The site is not convenient to retail and associated facilities in the same way as a site within or adjacent to an activity centre. The possibility of the use of vehicles for short-trips is high and car stackers are unlikely to be convenient in some instances. The consequence is a likely increase in demand for parking off-site. The pedestrian access proposed to Hawthorn Grove would be likely to be used by those residents who find parking on-street more convenient from time to time, notably residents in the converted buildings to the southern portion of the review site. The laneway may also be used from time to time but that is not problematic in our view. A lesser number of units would allow a more convenient parking layout to the identified.

75. There are some lesser issues relating to the layout of the car park that we do not address in any detail, such as clearance height to the basement ramp, marking of visitor spaces and a preference to ensure that all spaces are compliant with the Planning Scheme or AS2890.1 relating to the design of off-street car parks.

76. Respondent Objectors raised concerns about the potential traffic impacts associated with the proposal, including provision for emergency vehicle access, including fire brigade and ambulance, from Hawthorn Grove.

77. We understand that VicRoads has advised the Council that it finds the proposal to be acceptable in terms of access and traffic movement. VicRoads does, however, propose that parking on the north side of Barkers Road be banned at certain times to limit the extent to which eastbound vehicles are impacted by vehicles waiting to turn right into the development.

78. In response, Mr Hunt considered that a change to car parking on north side of Barkers Road would be unnecessary. He was satisfied that adequate access could be made available for emergency vehicles.

79. We do not find any reason to reject the proposal given traffic demands to Barkers Road or any local streets but expect that the removal of parking on the north side of Barkers Road would be desirable.

80. We accept that emergency access can be made available and that a system involving drop-down gates or keys/remote control can be developed. However, we have considerable difficulty with the fact that a new building in a modern housing development with frontage to a major road does not enable emergency vehicle access from that road. Any new or re-design should provide for unrestricted emergency access from Barkers Road.

81. The main issues raised were in relation to direct amenity impacts were overshadowing, the potential for overlooking, and the visual impact of the proposal. Most attention focussed on overlooking, given that the closest buildings would be converted motel units and no additions are proposed to Buildings 4, 5 and 6 that are most proximate to existing residents to the south-west and east of the review site. Some residents expressed concern about the potential for overlooking from new balconies associated with units in Buildings 3 and 4. Some balconies would face east with the potential for long range views to some adjacent properties. However, the site is well separated from existing residences in terms of the standard of 9 metres adopted in Clause 55, given the road network that surrounds the property. Standards and objectives relating to overlooking are not designed to prevent all overlooking between neighbours, but only unreasonable and potentially invasive overlooking at close range. While we understand that existing residents may be seen, or they may see people in the proposed units, we would not require changes or reject the proposal for those reasons.

82. There are matters of visual bulk when considering Building 1, particularly for the single storey units at No. 134 Barkers Road. Given the separation provided by the driveway at No. 134 Barkers Road and the setback of Building 1 from its western boundary, the setback requirements of Clause 55 are met. Nonetheless, the presence of the proposed development would be obvious given the open nature of the private open space associated with the modest units.

83. The usual test in terms of overshadowing is at the equinox. The proposal is acceptable in terms of this standard given that Buildings 3-6 exist and the increased afternoon shadowing associated with the proposed addition to Building 3 would be to a commercial premises that is sited across a laneway.

84. While compact and small in size, the proposed units involving the conversion of the former motel rooms are cleverly designed. However, there are valid issues of internal overlooking and overshadowing to south-facing open spaces, which is partly a function of the existing building positioning and the desire to adapt the building for small units. Screening could assist to limit overlooking in some cases. We are concerned about the relationship of ground level car spaces to the private open space of units in Building 3, which we find to be poor. It would create the potential for headlight glare and noise, with no opportunity for residents to retreat to another part of a unit that is not proximate to car spaces.

85. The proposed units in Building 1 share some of these issues in terms of the opportunity for overlooking to ground level open spaces within the same building or to other buildings. We consider that the layout of the units and design of the building could be improved to reduce the extent of internal overlooking without the need for expansive screening devices. There is also the problem of south-facing open spaces for a high proportion of units. A different design, involving separation of building elements would enable some of these concerns to be addressed, by providing different placing of open space and improved access to sunlight for all units.

86. A number of these units face Barkers Road, with their only private open space to that road. That has the benefit of achieving a good northern orientation, however, there are issues of traffic noise to the internal spaces and the open spaces that would reduce the amenity of these dwellings. There is no indication that acoustic glazing is proposed, although presumably that could readily be provided. We appreciate that the occupants would have the opportunity to utilise communal open space that would be less affected by traffic. However, if the road widening was to proceed, then some private ground level spaces would be within around 3-3.5 metres of the road reserve - which we find unacceptable given the absence of any secluded alterative.

87. The question of ventilation was raised in relation to the refurbished units, but may equally be applicable to some of the new units in Building 1. While there is scope for cross-ventilation, it is not convenient to open the high window above the kitchen bench area particularly given the false panel forward of that window. We expect this could be improved, although it is not fatal to the Application.

88. The Scheme contains policy direction in relation to environmentally sustainable development, a matter of greater prominence in Melbourne 2030. The proposal does not include any specific measures, such as water re-use. Mr Talacko said that for a development of this size, the inclusion of water conservation measures would be desirable. We agree.

89. The subject land presents an ideal redevelopment opportunity, however, for the reasons we have set out above, we are not persuaded that the proposal before us is acceptable in terms of the policies and decision guidelines of the Boroondara Planning Scheme.

90. During the course of the Hearing, Mr Wright raised the possibility of allowing part of the development if we were not persuaded that parts of the proposal were acceptable (ie. separating Building 1 from the remainder of the development).

91. We have considered this possibility but have not been persuaded to adopt that approach. We have indicated that we find the adaptation of the motel units to be acceptable in principle, however, the car parking for the entire proposal is integrated, involving the basement and at grade facilities. If we were not to allow Building 1, but approve the remainder of the development, we have no details as to the final form of a parking area and presentation to Barkers Road. Certainly we would be concerned if that was to be an open at grade parking area in place of demolished buildings.

92. Consequently, we have determined to not allow the Application.