E R Ronge & Co Pty Ltd v Moreland CC [2008] VCAT 1491

1. Leave is given to the applicant to substitute for the permit application plans, the following plans filed with the Tribunal:

1. Ms H Auchettl is joined as a party to this proceeding.
2. The decision of the Responsible Authority is affirmed.
3. In permit application MPS2006/0458 no permit is granted.

Mr Pitt called the following expert witnesses who gave evidence-in-chief and were made available for cross-examination:

Mr R Symons, traffic engineer of Ratio Consultants;

Mr A Biacsi, town planner of Contour Consultants; and

Mr M Hughes, urban appeals advocate and Mr D Camilleri, town planner

They called Mr J Holdsworth, architect to give expert urban design evidence and he was made available for cross-examination.

Ms R Fitch appeared on behalf of herself and Ms H Auchettl

Ms E Collins on behalf of herself and Mr F Macdonald (appeared on 26 March only)

1. This is an application to review the decision by Moreland City Council ('the Council') to refuse to grant a permit for the partial demolition of existing buildings on the land, and the development of apartments and townhouses in new buildings up to 3 storeys in height at 31-37 Stewart Street and 12-20 Hardy Street, Brunswick.

1. Mr Pitt sought leave to substitute amended plans at the start of the hearing. No objections were received to this request and we granted leave. This means the four storey height of the proposal considered by the Council has been reduced to three storeys (amongst other changes), and it is these amended plans that we have considered in making this decision.
2. Ms Fitch sought leave for Ms H Auchettl of 50 Stewart Street to be joined as party to the proceeding. No objections were received to this request and we granted leave.
3. Mr Hughes advised Amendment C43 to Moreland Planning Scheme ('the Planning Scheme') would be approved by the Minister for Planning and come to effect in the Planning Scheme during the week of this hearing, and the Council would provide a copy of the approved amendment when it became available. This was subsequently provided and the parties had the opportunity during the hearing to comment on its relevance to this proceeding.

1. The review site is located on the north side of Stewart Street, approximately 320 metres east of Sydney Road and approximately 600 metres west of Lygon Street. It is an irregular shaped large allotment of 8,659 square metres. The site has a frontage on part of its southern boundary to Stewart Street and a frontage on part of its eastern boundary to Hardy Street.
2. The review site comprises three lots at 33-37 Stewart Street that contain one and two storey industrial buildings fronting either Stewart Street or Hardy Street; and one lot containing a single storey dwelling fronting Stewart Street. Many of the industrial buildings have two storey walls that are built adjacent to the property boundaries of the review site.
3. The surrounding area is a residential neighbourhood; and the review site abuts residential properties with frontages to Stewart Street, Hardy Street and Connelly Street.

1. It is proposed to demolish parts of all of the existing buildings on the review site and construct a series of two and three storey buildings containing a total of 146 dwellings (136 apartments and 10 townhouses) over two separate basement car parks. One basement car park contains 103 spaces and will be accessed via Stewart Street. The other basement car park contains 73 spaces with access via Hardy Street.

1. The review site and all surrounding properties are contained within a Residential 1 Zone under the Planning Scheme. Planning approval is required to construct two or more dwellings on a lot and the development must meet the requirements of clause 55 (commonly known as 'ResCode').
2. Part of the site (to a depth of approximately 40 metres from the Stewart Street frontage) is affected by Heritage Overlay HO24, which applies to the Blyth Street heritage precinct. This precinct includes the north and south sides of Stewart Street and then extends southwards over the area generally between Staley Street and Howard Street. This means the Stewart Street frontage of the review site forms part of the northern boundary of this heritage precinct. Planning approval is required to demolish buildings and to construct a new building and carry out works within the first 40 metres of the review site from the Stewart Street frontage.
3. The Council and Mr Biacsi provided details of all the relevant State and local planning policies in the Planning Scheme, and we do not intend to repeat them in this decision. Instead, we acknowledge and agree with the Council and Mr Biacsi as to the extent of relevant policies and, where appropriate, we have referred to relevant policies in the reasons for our decision.
4. As mentioned earlier, Amendment C43 came into effect in the Planning Scheme during this hearing. It introduced a new Neighbourhood Character local planning policy at clause 22.10 of the Planning Scheme and updated the Municipal Strategic Statement to include objectives and strategies for neighbourhood character. Again, where appropriate, we have referred to these policies in the reasons for our decision.

1. The resident objectors all expressed concern about the scale and density of this proposal as it is larger, taller and contains a higher density of dwellings than is found in the surrounding neighbourhood. Mr Hughes explained the Council is of the view the Residential 1 Zone and various State and local planning policies support the redevelopment of the review site for residential purposes and there are a number of objectives in the State and local policies that support the suitability of this site for a "high density development", including:
   • Metropolitan Development State planning policy to locate a substantial proportion of new housing in or close to activity centres and other strategic redevelopment sites that offer good access to services and transport (clause 12.01-2); and
   • The review site's location just outside of two Urban Villages, which still makes it suitable as an area for change under the Municipal Strategic Statement (clause 21.04-2) given its proximity to urban villages and public transport.
2. Mr Hughes stated the Council acknowledges the size of this site creates a rare opportunity to provide a substantial amount of new housing within an established residential area. We agree the characteristics of this site, its location and the State and local planning policy support all provide the opportunity for this site to be developed with a high density of residential dwellings that is different to the existing housing stock.
3. The Council's concern with this proposal is that support for a higher density of development is contingent upon ensuring the new development responds to its context, provides high quality amenity on and off the site, and makes a positive contribution to the preferred character of the neighbourhood. The Council is of the view this proposal is a poor design response to the context and amenity of the surrounding neighbourhood.
4. Some of the residents expressed concern about the number of dwellings proposed and the size (number of bedrooms) of the apartments, however we are not concerned particularly with the number of dwellings or bedrooms as they are a product of the proposed building forms on the review site. Accordingly, the issues associated with the consideration of the appropriateness of this proposal in this neighbourhood are the form of the proposed buildings and their relationship to the site, the surrounding neighbourhood context and the amenity of the neighbouring properties.
5. In summary, our decision on this proposal finds the presentation of the development to Stewart and Hardy Streets is not appropriate and requires further consideration and refinement. The existing walls located along the boundaries to adjacent residential properties can be retained but should not be increased in height without incorporating appropriate setbacks. The internal layout of the dwellings requires some modifications to improve access to sunlight (townhouses 3-10); to minimise amenity and visual bulk impacts to the south and north; to improve access between the dwellings and the basement car parks; to improve the landscaped ambience of the communal pathways; and to review the division of resident and visitor car parking in each of the basement car parks. This summary is not exhaustive and the detailed explanation that follows outlines all of the matters we find require further consideration. We trust the detailed explanation will assist all parties in the consideration of a new planning application (in the future) on this site.

1. The Neighbourhood Character local planning policy and the purposes of the Residential 1 Zone and clause 55 all seek new development that reflects and responds to the existing or preferred future character. The policy and the preferred future character statements for precincts 69 and 75[1] provide the opportunity for building heights greater than 2 storeys in the neighbourhood if the site is large enough to allow off-site impacts to be mitigated through a design response, and if it is located in proximity to infrastructure and services. Mr Hughes submitted the Council is of the view the review site meets this criteria and we agree.
2. For developments greater than 2 storeys, the policy states the building height at the interface with the street and adjoining properties must not be more than one storey above the prevailing height of surrounding buildings.
3. Mr Biacsi described the surrounding neighbourhood as having a range of housing styles, both in terms of age and architectural style. This is reflected in the descriptions of the key characteristics of neighbourhood precincts 69 and 75, which also mention other variations such as building heights of between 1 and 4 storeys; lot sizes ranging from less than 300 square metres up to 750 square metres; and frontage widths of less than 6 metres up to 20 metres.
4. The review site is something of an anomaly in this residential neighbourhood due to its historical use for industrial purposes (in the midst of a residential area), its size and its two frontages to streets that have differing characteristics and differing planning controls. In our opinion, these site characteristics combined with the variation in the surrounding neighbourhood characteristics create an opportunity to introduce a new form of residential development (such as apartment buildings) on this site. As such, we agree with the Council and the applicant that the site is suitable for a more dense residential development than that found in the surrounding neighbourhood. This means the buildings on the review site will be different to the existing residential building forms of detached and attached single and double storey houses, and is more likely to contain an apartment style of dwelling rather than townhouses as suggested by Mr Morgan. The key issue is to design a new development that is respectful of the neighbourhood. Respectful does not mean that new development has to be of the same architectural style or building scale. What respectful does mean is that the development of this site should try to fit in to its surrounds.[2]

1. The proposal seeks to utilise the walls of the existing industrial buildings that are built on or close to property boundaries, including:
   • Along/adjacent to the rear boundary of No. 29 Stewart Street;
   • Along/adjacent to the rear boundary of Nos. 2-12 Connelly Street;
   • Along/adjacent to the rear section of the southern side boundary of No. 14 Connelly Street;
   • Along/adjacent to parts of the rear boundary of Nos. 22 and 24 Connelly Street;
   • Along the southern side boundary of No. 10 Hardy Street;
   • Along much of the Hardy Street frontage of the review site; and
   • Along/adjacent to the western side boundary of No. 26 Hardy Street and No. 39 Stewart Street.
2. The proposed buildings are generally built across the site in an east-west direction with a two storey height generally adjacent to the review site's west, north and east side boundaries; and a three storey height along part of the Stewart Street frontage, internal to the site and along a small section of the Hardy Street frontage.
3. Ms Dixon described the proposal as "Ayers Rock dropped into the neighbourhood", but we disagree. Ms Dixon's description would suggest there is one large building mass on the site that is visually prominent from all of the surrounds. However, that is not the case. The buildings are broken up throughout the site and the three storey sections are generally internal to the site or adjacent to the street frontages. The stepping of the height of the buildings internal to the site and along each of the street frontages creates a cohesive development that begins at the street and continues into the site. It is by no means one large building mass. There is no doubt the buildings on this site will be different to the housing types surrounding it, but that does not mean they cannot fit in to the neighbourhood.

1. We acknowledge a benefit to the development of the review site is being able to build along or adjacent to some of the property boundaries because of the existing boundary walls. However, the proposed plans show many of these walls are to be increased in height[3] and we do not support this. The retention of the status quo (the existing length and height of the boundary walls) provides a reasonable design outcome for those adjoining residential properties that have a wall abutting their side or rear property boundary. Any increase in wall height creates potential amenity issues of visual bulk and overshadowing, which is not an appropriate design outcome. Mr Biacsi gave evidence the south and west boundary walls should be no higher than the existing boundary walls and the development could incorporate a roof that rakes or slopes up and away from the walls. This is one design solution that could be utilised. We are of the opinion the design needs to be reviewed to ensure the existing boundary wall heights are not exceeded and any new development is appropriately setback from the property boundaries.
2. The northern boundary wall adjacent to No. 10 Hardy Street is proposed to have eight townhouses constructed along it with eight openings punched into the top 1.8 metres (approximately) of the wall to create light and ventilation to the ground and first floor levels of the townhouses, as well as eight first floor terraces. Mr Biacsi gave evidence the first floor setback to the northern boundary should be increased from 2.1 to 3.5 metres to comply with standard B29 of clause 55 regarding solar access into the first floor terraces. In our opinion, the siting of 8 dwellings and first floor terraces against the boundary of a single dwelling and its secluded private open space is not an appropriate design outcome. Again, the ability to build along this boundary by utilising an existing boundary wall is a benefit, but the number of dwellings and the creation of openings that are partly adjacent to the first floor terraces and screened with perforated panels or trellis to 1.7 metres with 25% openings is not an appropriate design response to the amenity of the neighbouring property.

1. There are four internal existing walls that are proposed to be reinstated/retained and Mr O'Dwyer gave evidence this is good because they represent the history of the site. We do not consider the history of the site warrants retention or reinstatement of these walls. We agree with the evidence of Mr Raworth that the industrial buildings on the review site present a contrary character to the identified values of the heritage precinct along Stewart Street. The reality is only one of these walls is located within the heritage precinct and each of these four walls will need to be rebuilt as they are located above the proposed basement car parks. As such, we see no reason why the proposed internal layout of the development should be constrained by the retention of these walls.

1. At ground level, the proposal incorporates an entry into the basement car park at the western end of the Stewart Street frontage and four apartments setback approximately 3.2 metres. At level 2, there are five apartments with their balconies setback a minimum of 1.8 metres from Stewart Street and the westernmost apartment is setback a minimum of about 2.2 metres from No. 29 Stewart Street. At level 3, two apartments are built at the eastern end of the frontage, setback a minimum of 2 metres. There is one apartment at the western end that is setback 10.8 metres from Stewart Street and about 7.6 metres from No. 29 Stewart Street.
2. The Council and the residents expressed concern the building is large; inadequately setback; and fails to respect the neighbourhood and heritage character. There are two matters requiring consideration in regard to the the appropriateness of the proposed building along Stewart Street. The first is whether it is respectful of the neighbourhood character and the second issue is whether it will have an adverse impact upon the significance of the heritage precinct.
3. The streetscape of Stewart Street is of particular relevance in considering the impact on neighbourhood character. The properties to the east of the site are terrace-style housing built close to the street frontage (approximately a 3 metre setback) and the adjoining house has a two storey height that, in modern building design terms, is more equivalent to three storeys in height. The properties to the west also contain buildings sited reasonably close to the street, except for the immediately adjoining property at No. 29. It contains a single storey dwelling that is setback in the order of 14 metres.
4. Mr Biacsi gave evidence the western apartments at ground and first floor levels (being unit 4 at ground level and units 55 and 56 at level 1) could be setback further to achieve a minimum ground level setback of 5 metres. We presume this suggestion is to provide a greater setback adjacent to the 14 metre setback of No. 29; however we are not persuaded this is necessary. There is a rhythm of buildings built close to the street along Stewart Street, and this rhythm is broken by the house at No. 29 and the industrial buildings on the review site. The proposed residential building along the Stewart Street frontage will assist to fill in the majority of this broken rhythm. The incorporation of apartments above the basement car park entry is a good design outcome that allows for a gradual stepping up in the height of the building along the street and minimises the creation of a 'hole' or gap above the basement access.
5. The eastern end of the Stewart Street frontage has a height of three storeys, is built close to the side boundary, and has a front setback in the order of 2 metres. This will sit next to a pair of two storey terrace houses at Nos. 39 and 41 Stewart Street. The Council submitted the proposed building is too high and the level 2 apartment closest to Nos. 39 and 41 Stewart Street should be deleted. Mr Raworth described Nos. 39 and 41 as the most notable buildings (in regard to heritage significance) to the east of the review site, but stated the height, setbacks and architectural style of the proposed building is appropriate. The heritage significance of this precinct is "a large and intact area of Victorian and Edwardian residential buildings". The existing dwelling at No. 31 makes no heritage contribution to the precinct and the existing industrial buildings detract from the significance of the precinct. Therefore, we agree with Mr Raworth's evidence that the proposal is better than the existing conditions and will not adversely affect the significance of the heritage precinct. In regard to Nos. 39 and 41 Stewart Street, Mr Raworth acknowledged the proposed building is slightly higher[4] but argued "the mixed character of the north side of the street and the number of non-contributory buildings are each factors which mitigate against any adverse impact in relation to this aspect".
6. Mr Pitt submitted there is a diversity in built form and architectural expression and era in the buildings along Stewart Street and we agree. Mr Raworth acknowledged pitched roofs are a feature of this heritage precinct, but stated it does not need to be incorporated into the proposal due to the limited intactness of the north side of Stewart Street. In our opinion, the diversity in neighbourhood character and the limited heritage intactness of the north side of Stewart Street create an opportunity for the proposed building to incorporate differing architectural elements and materials, including a flat roof[5].
7. Returning to the three storey height of the eastern end of the Stewart Street elevation, we note the Neighbourhood Character local planning policy states building height must not be more than one storey above the prevailing height of surrounding buildings. The proposed design achieves this outcome as the approximate 3 metre height difference is the equivalent of one storey. Also, there are no significant viewlines along Stewart Street and there is no particular significance associated with the western side all of the terrace at 39 Stewart Street. For these reasons, we have no concern with the difference in building height between the review site and 39 Stewart Street.
8. The proposed front fence contains reasonably spaced pickets to a height of about 1.8 metres. The Council expressed concern about this and sought a reduction to 1.2 metres if the proposal was approved. Mr Biacsi gave evidence the fence style could be changed to provide appropriate privacy to the proposed secluded private open space areas at ground level with a reduced height of 1.5 metres. Mr Raworth did not consider the height or style of the front fence to be of heritage significance given the limited intactness of the north side of Stewart Street. Having inspected Stewart Street, we note there are a range of fence styles and heights and there is no consistency. Therefore, we find a fence height of 1.5 metres would be appropriate.

1. The Hardy Street frontage has an east-west section of about 17 metres in length and then a north-south section about 102 metres in length (as it follows a 90 degree bend in the road). The proposal is to retain existing brick walls built along the street frontage that range in height from 5.3 metres to 8.6 metres. However, these walls are described on the plans as being "reinstated/retained" and the elevations of this frontage depict a number of windows and doors punched into the ground level; and windows, balconies and other openings at levels 2 and 3. In the centre of the Hardy Street frontage, the existing industrial building will be removed and there is proposed to be an entry/exit to the second basement car park. Unlike the Stewart Street entry, this basement ramp is effectively left open for a depth of about 22 metres with apartments built around it in a "U" shape. The open area between the proposed buildings along the frontage is about 14 metres in length and will include some landscaping, fencing and pathways.
2. We see the benefits to be gained for the Hardy Street neighbourhood by converting a hard edge industrial interface to a residential façade broken up with windows, doors, balconies and other openings; however we are not persuaded the proposed design response is appropriate to the neighbourhood context. Firstly, we see no reason why the front façade along Hardy Street should be constrained (if indeed it has been) by the retention of the boundary walls along the street frontage. Given the proximity of the basement below some of these walls, it is highly likely they will need to be rebuilt and, as such, opportunities for a better design response arise. The extent of alterations proposed to these walls brings into question what resemblance there will be to the original walls at the end of the day anyway.
3. We find building to the Hardy Street frontage is an acceptable and appropriate design outcome. Hardy Street is an intimate street and, in our opinion, the development of this site should seek to create a contemporary interpretation of a continuous terrace style building form. There is an opportunity for the building from to step up from the existing wall height at the northern end of the Hardy Street frontage to a 3 storey height at the southern corner of Hardy Street, but the setback of some three storey components (such as opposite Nos. 33 and 27 Hardy Street) needs to be reviewed and possibly increased. The appropriate balance needs to be struck to ensure the extent of building along the boundary does not create unreasonable visual bulk. In our opinion, there are greater opportunities for building height within the site itself.
4. We are of the opinion the space around the long ramp into the basement car park in Hardy Street creates a gap that detracts from the streetscape. The extent of fencing around private open space areas and paving for a communal pathway also detracts from the streetscape and Ms Frank-Mas' proposed landscaping. There are ways the design could address this deficiency by improving the amount of communal landscaping around the ramp; or minimising the length of the ramp by providing a flat vehicle entry that turns a corner and then ramps down into the basement; or by providing a building that encloses the ramp in a similar way to the Stewart Street frontage. We are of the view the design outcome that needs to be achieved is the creation of a contemporary residential façade to the Hardy Street frontage. We are not persuaded a façade broken up with punctuated windows, doors, balconies and other openings achieves this outcome. We acknowledge the majority of the dwellings on the site are apartments, which in itself constitutes a different style of housing to that found in the surrounding neighbourhood, but we consider a more appropriate streetscape design response would be a contemporary interpretation of a continuous terrace style building form that is respectful of the existing rhythm of buildings in Hardy Street.

1. Ms Dixon described the proposal as a gated community and expressed concern about the lack of surveillance into and out of the development. She submitted the development will potentially feel isolated from the broader community and there will be an increase in crime. We do not accept Ms Dixon's assertions. Mr Holdsworth gave evidence social interaction is not an urban design issue per se, rather its about the interfaces of the proposal to its street frontages and the internal amenity or ambience created in a development. We are of the opinion if the presentation of the proposal to the street frontages and the internal communal pathways are appropriate, the development will have an attractive and inviting presentation for residents and visitors. Through other findings we have made in this decision, we are confident an appropriate design can achieve an attractive and inviting presentation.

1. Generally, the retention of existing walls along the boundaries with other properties has assisted to minimise potential amenity impacts upon the adjoining residential properties in Stewart, Connelly and Hardy Streets.
2. Ms McIntyre expressed concern about the ability of apartment 95's balcony to overlook her property at 18 Connelly Street and the proximity of level 3 to her property. The plans demonstrate screening is proposed to apartment 95's balcony in accordance with clause 55, so we find the location and design of this balcony to be acceptable. Level 3 (apartments 130 and 136) are setback between 7.8 and 9 metres from Ms McIntyre's property, which complies with the setback requirements in clause 55 for a building of this height. However, there is also the question as to whether this building will cause unreasonable visual bulk to Ms McIntyre's property. Visual bulk can be dealt with via setbacks, articulation and/or landscaping. In this case, we find the combination of the 6 metre ground and level 1 setback from Ms McIntyre's property and the further setback of level 3 will assist to articulate the building form. Ms Frank-Mas has included three trees that will reach a mature height of 5 metres and more than 6 metres. Based on the articulation and landscaping, we are satisfied level 3 will not cause unreasonable visual bulk to Ms McIntyre's property.
3. Ms Collins expressed concern about the potential for noise and pollution from the vehicles entering and exiting the basement car park off Hardy Street as the front two rooms in her dwelling (opposite the proposed ramp) are bedrooms. Mr Pitt pointed out the ramp has a transition at the top to reduce the possibility of headlight glare. We support the provision of two basements, including one accessed via Hardy Street (refer to our findings in regard to parking and traffic). As such, it is inevitable that the crossover to the basement will be located at some point along the Hardy Street frontage, and is likely to be located opposite existing dwellings. We have made findings already on the need to alter the design of the basement access to reduce the impact of the gap in the Hardy Street streetscape. We agree with Mr Pitt the key design consideration is ensuring the angle of the ramp reduces the possibility of headlight glare, and this should continue to form part of the design of the ramp access to Hardy Street.
4. The statement of grounds from No. 29 Stewart Street expressed concern about the impact of construction upon their property, but this is a matter that is dealt with at the building permit stage of the development rather than now. They also expressed concern about the loss of privacy and overshadowing, particularly in winter. Clause 55 requires consideration of overshadowing at the Equinox (March or September), as it is not the worst case or the best case but, rather, the middle impact of overshadowing. The shadow cast at the Equinox needs to be considered between 9am and 3pm and the shadow already cast by the existing wall on their northern rear boundary and their existing garage must be taken into account. Having explained this, we have not assessed the shadow impact in any detail because we are not persuaded the height of the southern wall or the height and length of the western wall (containing apartments 17, 18 and 68) are appropriate.
5. We are concerned about the visual bulk impact of the development upon No. 29 caused by the length and height of walls (both proposed walls and existing walls with an increase in height) surrounding the back garden of this property. As we have already determined, the proposed increase in the height of the southern wall is not appropriate. The proximity of the proposed second storey (level 2) should meet the clause 55 standard setback requirement (if it does not already). The length and height of the western wall (adjacent to No. 29's garage) should be reviewed in light of the objectives and standards of clause 55 regarding building on the boundary and the length and height of walls on the boundary or setback from the boundary. A new 3 metre high wall of the length proposed along the part of the eastern boundary of No. 29 appears reasonable but that is not what is depicted on the elevation as the wall is higher than this and is, in part, two storey. The enclosure of No. 29's back garden by walls creates, in our opinion, an unacceptable level of visual bulk.
6. In regard to the 8 townhouses adjacent to the northern boundary, Mr Pitt submitted the Tribunal has consistently held the potential for noise from elevated terraces is acceptable in an urban context[6]. However, the Tribunal assesses each case on its merits, and there will be circumstances where a proposal may not be appropriate because of amenity impacts upon neighbouring properties, including noise impacts. As we have already explained, the punctuations into the northern wall assist in the creation of good internal amenity for 8 townhouses but this increases the potential for impact upon the single fronted house and its back garden next door by the 8 dwellings and their first floor terraces, which are adjacent to the living areas of the dwellings. Privacy screens in the punctuations in the wall that accord with clause 55 would not be a panacea for any noise problems.[7]

1. The Council was particularly critical of the internal amenity afforded to residents of this proposal in terms of private open space provision, overlooking, overshadowing and sunlight access.

1. Each apartment is provided with either a ground level private open space area or an upper level balcony. Mr Pitt submitted it is generally accepted with apartments that they will have private open space often in the form of a balcony and it will not be secluded in the same way one would expect a ground level private open space area to be.
2. The ground level of the development has been broken up into small private open space areas with communal pathways running through the development, connecting each of the buildings and street frontages. As such, the Council questioned whether the ground level spaces would be secluded and Mr Biacsi gave evidence the fencing should have a degree of permeability so there is some privacy but also connectivity and interaction with the communal pathways. Ms Frank-Mas gave evidence the design needs to be modified to include individual access gates from the communal pathways to 52 of the ground level private courtyards. We find this is a level of detail that has not been thought through in the proposed plans of the development, but could easily be incorporated into the design.
3. It poses a question in our minds as to whether some attractive landscaped communal areas would be a more appropriate design response than dividing up the majority of the ground level into small courtyard spaces. The clause 55 objective is to provide adequate private open space for the reasonable recreation and service needs to residents and the matters to be considered include:
   • The useability of the private open space, including its size and accessibility.
   • The availability of and access to public or communal open space.
   • The orientation of the lot to the street and the sun.
4. We note all the dwellings are provided with some form of private open space but it is not necessarily secluded; it may be adjacent to a street or communal pathway; and it may receive limited sunlight. We also note there is limited public open space available in the surrounding neighbourhood[8]. We are not persuaded it is appropriate to require a communal open space area with communal facilities such as a barbecue (as suggested by the Council). Such areas can create management issues that also affect the internal amenity of a development. Given this, we find the provision of a private open space area for each dwelling is important, but we note the ground level private open space areas range in size from 24 to 155 square metres. As these apartments contain 1 or 2 bedrooms, we are not persuaded these areas need to be so large and we are of the opinion there needs to be a balance between private open space areas and landscaped communal areas that contribute positively to the ambience of the development. We find the landscaping opportunities along each of the communal pathways should be increased by reducing the size of some of the ground level private open space areas.

1. The east-west orientation of the majority of the buildings across the site mean that a number of proposed buildings have the potential to cast a southerly shadow over the private open space areas, balconies and apartments situated behind. The Council submitted 39% of the dwellings face south or predominantly south, which is unacceptably high. Mr Pitt disputed the analysis by the Council and Mr Holdsworth, and pointed out solar access must be assessed having regard to the orientation and dimensions of the site, which is approximately 42 metres wide and 175 metres long on a north-south axis. We accept Mr Pitt's submission that the development can achieve 5 and 6 star ratings for energy efficiency and find, on balance, the development achieves a reasonable level of internal amenity by way of its solar orientation.

1. The proposal contains two basement car parks, one accessed via Stewart Street containing 103 car spaces, including 10 visitor spaces, and the other accessed via Hardy Street containing 73 car spaces, including 20 visitor spaces. Mr Pitt and Mr Symons both explained earlier plans before the Council had the two basements connected, but they were separated to minimise the number of cars exiting onto Hardy Street. Mr Symons stated the vehicles were more likely to use Hardy Street and Albion Street for ease of access even if they were ultimately intending to travel south.
2. Clause 55 requires a total of 176 car spaces to be provided for the proposed dwellings, including 146 resident car spaces and 30 visitor spaces, and this has been met in this proposal. Some of the residents expressed concern about the adequacy of the car parking given the total number of bedrooms proposed, but the car parking standard in clause 55 is the provision of 1 car space for a 1-2 bedroom apartment and we are satisfied this has been provided.
3. The visitor car parking standard in clause 55 has also been met but Mr McLeod expressed concerned about the impact upon availability of on-street parking as he explained some existing residents in Stewart Street do rely solely on on-street parking. Mr Symons acknowledged there may be instances where visitors choose to park on the street, and we find there is nothing unusual about a visitor to any dwelling making a choice as to where they park. The fact remains visitor car parking is provided in each basement and the number of visitor car spaces satisfies the standard in clause 55.
4. Mr Symons gave evidence Stewart Street, Hardy Street and the surrounding street network are capable of accommodating the traffic generated by this proposal. He acknowledged the residents observations that both Stewart and Hardy Streets effectively become one way streets when cars are parked on either side of the streets, but gave evidence the capacity of both streets is sufficient to cater for the additional traffic generated by this proposal. We accept Mr Symons' evidence and note the Council is not opposing this proposal on traffic and parking grounds.
5. The Council did question the safety of pedestrians in each basement using one of the five proposed lifts. Mr Symons stated the northern lift in the Stewart Street basement should be setback one metre but the other lifts are acceptable as they are located generally at the end of aisles where there are a small number of resident car spaces.
6. Ms Fitch and Mr Morgan questioned the safety of pedestrians walking along the Stewart Street footpath crossing in front of the proposed access to the Stewart Street basement car park. Mr Symons explained the design of the concrete crossing and ramp meets the appropriate standards; and the road rules require giving way to pedestrians. We find the design of the access to each of the basements is satisfactory.
7. The Council and Mr Holdsworth questioned the workability of the car parking arrangements given the perceived difficult access arrangements between the basement car parks and the apartments, particularly between the Stewart Street car park and the central apartments, and between the Hardy Street car park and the northernmost townhouses. Mr Pitt submitted intercom and security systems can be put in place to allow easy access, and Mr Biacsi gave evidence a 1.2 metre wide pedestrian accessway should be provided between apartments 47 and 48 to provide ease of access to a car park lift for townhouse residents. We are of the opinion the implications of individual dwelling access to a basement car park have not been fully thought through in the amended plans. However, we would not refuse this application for this reason alone as it is evident from the submissions and evidence that minor modifications can be made to the proposal to ensure all residents can be provided with access to a basement car park.
8. We note 20 visitor spaces are provided in the Hardy Street basement and 10 visitor spaces are in the Stewart Street basement. Mr Symons advised there is no particular reason for this division and there are no traffic generation reasons for this division. Given this, we are of the opinion the division of resident and visitor car parking should also be reviewed to ensure all residents and their visitors can be provided with optimal access arrangements to a basement car park.

1. We are of the opinion it is generous to say a number of the existing walls are to be retained. In reality, many of them are to be rebuilt and, as such, they do not pose a constraint to the way in which the layout of the development can be planned. We find the internal layout of the development has flexibility to work around the external boundary walls that will be retained; and hence there can be some changes made to the internal layout to improve the internal amenity of communal pathways, solar orientation and the like. The external boundary walls should be retained at either their existing heights or a lower height. Increases in height are not acceptable having regard to the amenity of the adjoining residential properties. The design requires further consideration in order to achieve appropriate outcomes, particularly along Hardy Street. A contemporary design that reflects the rhythm of building forms in Hardy Street would be a more respectful response to the existing neighbourhood character. The design should seek to minimise the gap created by the basement car park ramp as well.
2. Other changes need to be made to the design to provide a better distribution of resident and visitor car parking in the two basement levels; improved ease of access between the basement levels and the dwellings for residents and visitors; and the communal pathways require greater areas of landscaping to enhance the ambience and internal amenity of the development.
3. In our opinion the combination of all of these changes will necessitate significant modifications throughout the overall development and they are not changes that can be adequately dealt with by the imposition of permit conditions or by issuing an interim decision providing the applicant with an opportunity to amend the proposal. The appropriate course of action is for the applicant to reconsider the detail of the proposal in light of our findings and prepare a new application for planning permit that satisfactorily addresses the deficiencies we have identified.

For the above reasons, the decision of the Responsible Authority to refuse to grant a permit is affirmed. It is ordered that no permit be issued.

[1] The southern end of the review site forms part of Precinct 75 and the northern end forms part of Precinct 69 of the Moreland Neighbourhood Character Guidelines 2006, which is a reference document to clause 22.10 of the Planning Scheme.

[2] For more information on this, refer to the Department of Planning and Community Development's General Practice Note on "Understanding Neighbourhood Character".

[3] Mr Pitt advised the west and south boundary walls are to be increased by 600-700mm. The east boundary wall is also being changed, but it is unclear to us what increase(s) in wall height there may be.

[4] Mr Pitt advised the height difference would be a maximum of about 3 metres

[5] Ms Fitch opposed the flat roof of the front façade

[6] He cited Akehurst v Stonnington CC [2007] VCAT 985 and Potts v Glen Eira CC [2003] VCAT 1129 in support of this submission.

[7] This view was also expressed by Member Martin in the matter of Secen v Stonnington CC [2007] VCAT 2217

[8] There are two 'pocket parks' - one in De Carle Street to the northwest of the review site and the other is on the southwest corner of Lygon and Blyth Streets to the southeast of the review site.