The decision of the responsible authority is set aside. In permit application

TP-2007-649 a permit is granted and directed to be issued for the land at

138-144 Elgin Street, Carlton. The permit allows buildings and works to the existing building including demolition of the rear and construction of two new levels for 21 student accommodation apartments and waiver of the car parking requirements of the parking scheme in accordance with the endorsed plans and subject to the following conditions:

1. Prior to the commencement of any demolition, construction or carrying out of works on the land, the applicant must submit to the responsible authority three copies of plans drawn to scale generally in accordance with the plans considered at the hearing dated 19 September 2007 but amended to show:
   • (a) the roof terrace extended a further 2.0 metres to the north on the west side of the roof plant;
   • (b) the fixed opaque glazing of the first floor windows in the north elevation replaced with clear glazing; and
   • (c) the creation of additional communal open space on the first floor using the space occupied by the former Unit 14, portion of the light well and adjoining passages.

These amended plans must be to the satisfaction of the responsible authority and when approved shall be the endorsed plans of this permit.

1. The development and use as shown on the endorsed plans must not be altered or modified without the prior written consent of the responsible authority.
2. A schedule and samples of all external materials, colours and finishes must be submitted to the satisfaction of the responsible authority prior to the commencement of the development. The schedule must show the materials, colours and finishes of all external walls, roof, fascias, window frames, glazing types, doors and balustrades.
3. Prior to the commencement of the development, including demolition, a report prepared by a suitably qualified Structural Engineer, or equivalent, must be submitted, demonstrating the means by which the retained portions of building will be supported during demolition and construction works to ensure their retention, to the satisfaction of the responsible authority. The recommendations contained within this report must be implemented at no cost to council and be to the satisfaction of the responsible authority.
4. Prior to the commencement of the use and development hereby permitted, the owner of the land must enter into and execute an agreement with the responsible authority pursuant to section 173 of the Planning and Environment Act 1987 to the satisfaction of the responsible authority in which it shall be covenanted as follows:
   • (a) pursuant to the provisions of Section 181 of the Planning and Environment Act 1987 this agreement shall be registered with the Registrar of Titles and shall run with the land;
   • (b) that the requirements contained in the agreement shall form part of any lease of the premises which the owner of the land under this permit may enter into with another party; and
   • (c) the owner of the land under the permit shall pay the legal costs and be responsible for the preparation and registration of the said agreement.

The section 173 agreement must specifically provide for the following:

(a) the accommodation provided on the subject land is to be used for the exclusive accommodation of students enrolled full time at a secondary or tertiary level educational institution and to be vacated within three months of completion of full time studies; and

(b) the building to operate at all times in accordance with the Management Plan as required by Condition 7 of this permit to the satisfaction of the responsible authority. The Management Plan must establish a set of house rules for the use, to be followed thereafter to the satisfaction of the responsible authority. The plan must ensure that a suitably qualified full time manager/lead tenant with responsibility to oversee student behaviour permanently resides on the site and must detail the maintenance, cleaning, garbage storage and collection, supervision and security of the site.

1. Prior to commencement of construction or carrying out of works, the owner of the property must enter into a legal agreement under section 173 of the Planning and Environment Act 1987 and pay a lump sum licence premium (payable at the outset rather than an annual fee), concerning liability and maintenance of those parts of the development projecting into airspace or subsoil of land under the care and management of council and disclaiming any right or intention to make or cause to be made at any time any claim or application relating to adverse possession of the land. The owner of the property to be developed must pay all of council's reasonable legal costs and expenses of this agreement, including preparation, execution and registration on title.
2. Prior to the commencement of the use and development hereby permitted, a Management Plan must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed as evidence of its approval and will then form part of the permit. The Management Plan must establish a set of 'house rules' for the use, to be followed thereafter to the satisfaction of the responsible authority. The plan must ensure that a suitably qualified full time manager/lead tenant with responsibility to oversee student behaviour permanently resides on the site and must detail the maintenance, cleaning, garbage storage and collection, supervision and security of the site.
3. All garbage and other waste material must be stored in an area set aside for such purpose to the satisfaction of the responsible authority.
4. No garbage bin or waste materials generated by the permitted use shall be deposited or stored outside the site and bins must be returned to the garbage storage area as soon as practicable after garbage collection.
5. The minimum clearance to the underside of the proposed window boxes/ balcony projecting over Aplin Place from the existing road surface should be 5.0 metres.
6. The minimum clearance to the underside of the proposed new canopy projecting over Elgin Street from the existing footpath surface should be 3.0 metres. The minimum setback from the adjacent face of kerb should be 750mm. The canopy should be drained to a legal point of discharge in accordance with plans and specifications first approved by the responsible authority - Council's Group Manager Engineering Services.
7. The owner of the subject land should construct a drainage system, incorporating water sensitive urban design, within the development and make provision to connect this system to council's underground stormwater drainage system in accordance with plans and specifications first approved by the responsible authority; Council's Group Manager - Engineering Services.
8. The Owner of the subject land will not be permitted to alter the existing footpath in Elgin Street for the purpose of constructing new pedestrian entrances without first obtaining the written approval of the responsible authority; Council's Group Manager - Engineering Services.
9. All necessary approvals and permits are to be first obtained from council and the works performed to the satisfaction of Council's Group Manager - Engineering Services.
10. This permit will expire if one or more of the following circumstances apply:
    • the development is not started within two years of the date of this permit;
    • the development is not completed within four years of the date of this permit; and/or
    • the use is not commenced within four years of the date of this permit.

The responsible authority may extend the date upon which this permit expires only if it receives a request in writing before the permit expires, or within three months afterwards.

Mr Garry Wissenden, Town Planner, Hansen Partnership

Ms Fiona Clyne and Mr Roger Woock represented the Carlton Residents Association Inc.

1. This is an application to review the decision of the responsible authority to refuse permission for buildings and works to the existing building including demolition of the rear and construction of two new levels for 22 student accommodation apartments and waiver of the car parking requirements of the parking scheme, at 138-144 Elgin Street, Carlton. The responsible authority issued a Notice of Refusal to Grant a Permit for the following reasons:
   • (a) its failure to satisfy the objectives and design standards of Council's Student Accommodation Guidelines;
   • (b) additional concerns include insufficient light and ventilation and problems with overlooking.
2. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality.
3. The subject site is on the north side of Elgin Street, between Drummond and Rathdowne Streets. It is rectangular in shape with a frontage to Elgin Street of 20.3 metres, a depth of 25.6 metres and a site area of 519.68 square metres. The northern boundary abuts Alpin Place, a right of way providing rear access to the property, which has a width of 6.15 metres at the subject site and 3.8 metres wide elsewhere. The whole of the site is occupied by two double storey Victorian brick buildings fronting Elgin Street and two brick buildings at the rear on the same title. There is no car parking on site. The buildings are used by a hardware store at ground level and for residential purposes on the first floor. The Victorian facades on Elgin Street are rendered brick with aluminium shopfront glazing. A divided canopy overhangs the footpath. The buildings have a 'D' heritage grading and both sides of Elgin Street are Level 2 Streetscapes in Council's Heritage Places Inventory (2000).
4. The northern side of Elgin Street is characterised by Victorian style buildings at a range of heights, which are currently used for a variety of retail purposes. Setbacks and street frontage designs also vary quite significantly. The south side of the street is composed predominantly of Victorian double storey terrace buildings which are used for retail purposes at ground level. The abutting area to the north is closely developed for residential use with high site coverage and heights of dwellings ranging from one to three storeys.
5. The proposal is predicated on the owners of the land continuing their hardware business on the ground floor in a revamped more efficient retail layout and replacing the existing residential apartments on the first floor with a double storey development of 22 student accommodation units ranging in size from 20.7 square metres to 45.2 square metres on the first and second floor levels. A small rooftop terrace of approximately 25 square metres is also proposed. No on-site car parking is to be provided. Access to the units is via a 3 metre wide entry foyer from Elgin Street on the eastern end of the hardware shop's frontage. The foyer provides for mail collection and gives access to the lift, refuse bin and bike storage spaces.
6. The land is situated in the Business 1 Zone. Pursuant to clause 32.01-1, accommodation is a section 2 use and a permit is required. Under clause 34.01-1, a shop is a section 1 use and no permit is required. Clause 34.01-4 requires a permit for the construction of a building or to construct or carry out works. A Heritage Overlay, Schedule 1 also affects the land. Under clause 43.01-1 a permit is required to demolish, externally alter a building or construct a building or carry out works. Clauses 52.06-1 and 52.34-1 require that a new use must not commence or the floor area of an existing use be increased until the required car and bicycle spaces have been provided on the land.
7. In relation to the current proposal the state and local planning policy framework seeks to:
   • Encourage urban consolidation in established urban areas;
   • Encourage development that improves housing choice and accommodates future housing needs;
   • Facilitate residential and commercial development in existing activity centres with good access to public transport;
   • Ensure that development achieves a reasonable standard of amenity for existing and new residents;
   • Encourage the design of energy efficient buildings;
   • Ensure that development respects the existing or preferred neighbourhood character;
   • Achieve high quality urban design and architecture;
   • Protect the environment and achieve sustainable land use and development;
   • Protect the heritage significance of the locality.
8. In particular, the Municipal Strategic Statement at clause 21.08-7 - Carlton supports the limited residential development of the area around the review site including 'shop-top' housing within the Lygon Street area, where it does not interfere with business activity and maintains the existing low scale of buildings. This strategy is supported by local planning policies at:
   • clause 22.05 - Heritage Places outside the Capital City Zone;
   • clause 22.15- Lygon and Elgin Street Shopping Centre; and
   • clause 22.17 - Urban Design Outside the Capital City Zone;

which variously aim to ensure that new development and the external alteration of buildings:

• make a positive contribution to the built form and amenity of the area;
• are respectful to the architecture, historical character and appearance of the streetscape; and
• maintain a local shopping role to help promote residential development in the surrounding area.

1. The principal issues requiring my consideration in relation to this matter are the internal and external amenity impacts, heritage character and business activity in the Lygon and Elgin Streets precinct, car parking and the sustainability of the use.
2. The proposal was criticised by both the council and objectors as offering poor internal amenity to future occupants. They pointed specifically to the small room sizes, limited access to daylight and the compounding factor of the lack of any communal space for residents within the building. The proposal consists of 19 one-bedroom and 3 two-bedroom apartments. Each single unit is essentially a bedroom/sitting room with bed, desk, meals preparation area and wardrobe, bathroom with shower, toilet, hand basin and cupboard. The double units have two separate bedrooms and a sitting room in addition to the other standard fittings.
3. I am satisfied that the individual units provide an appropriate standard of accommodation for the student occupants and that the accommodation proposed in this case exceeds the space guidelines within the council's Student Housing Management and Development Controls (SHDMC), a reference document under the planning scheme that is currently being updated. However, I agree with council and the objectors, that the proposal as a whole is compromised given the absence of a communal sitting area where students can socialise away from their own rooms. In response to these concerns the applicant outlined a modification to the design of the first floor area to address this deficiency, which involves the elimination of the former Unit 14 and the conversion of that space, together with the section of the court at the base of the lightwell aligned with that unit and the adjoining passages to form a sitting area. A condition of the permit will require this amendment to the proposal.
4. Two aspects of the proposal relate to external amenity. The first is the concern that the northern elevation first floor unit windows will overlook the southern elevation, rear windows and service yards of the property at 7 Little Palmerston Street. I have accepted the arguments advanced by Mr Twite that the 9 metre separation across Aplin Place and the latter building's boundary setback, meets the requirements of clauses 54/55, if they were applicable to the proposal and that the areas in view do not constitute the main orientation of the Little Palmerston Street units. Given the foregoing, the internal amenity of the first floor north facing units would be improved by the removal of the fixed opaque glazing shown on the application plans, without adversely affecting the amenity of the neighbouring property. A further benefit of such a change would be to improve surveillance of the Alpin Place cul-de-sac.
5. The opportunity exists to improve the communal open space available to students by a modest extension to the roof terrace proposed. Roof terraces are commonly found in the area. Extension of the terrace 2 metres to the north on the western side of the roof plant would increase the size of the terrace to approximately 35 square metres. Conditions addressing these amenity aspects form part of the permit.
6. I am satisfied that the form of the building is consistent with local policy at clause 22.05, in that the new built form and higher rear portion is set back 8.1 metres from the frontage and therefore is partly concealed from the south on the opposite side of Elgin Street by the Victorian façade of the first floor. Even though it will be visible from the south and on approaches from the east, it will be a recessive and obviously modern architectural element. The Post Office building on the western side of the subject is set back 2 metres from the common boundary and is an A2 graded building in the Council Conservation Study in this Level 2 Streetscape. The new portion of the building will be of comparable height to the ridge of the Post Office and the lift overrun lower than the Post Office chimney. In each case the new construction as already noted will be a recessive element.
7. While the Council's Heritage Advisor suggested that the stable building at the rear should be retained, the Council Delegate report noted that there is no policy support in the planning scheme for the retention of the rear of a D graded building. Accordingly, demolition of the stable was regarded as acceptable. I agree with the Delegate Report that the proposed replacement of the first floor windows on the western end of the façade with windows to match the balance of the building should be fully support and in my view will make a worthwhile contribution to the streetscape. Taken as a whole, I have accepted the view put on behalf of the applicant that the proposal will not unreasonably impact on the visual heritage qualities of Elgin Street or the adjacent Post Office building.
8. Pursuant to clause 52.06 of the scheme the development generates a requirement for 56 car parking spaces, being 22 for student accommodation and 34 for 430 square metres of retail space. The retail space is an existing use, which will continue after the redevelopment with a slightly smaller area due to the provision of a larger ground floor foyer for the accommodation above and space for refuse bin and bicycle storage areas. The business has operated without providing parking on-site in the past and is entitled to continue.
9. It is recognised and confirmed in the SHDMC that student accommodation generates very low levels of parking demand, with a rate of 0.25 spaces per bed often used. This converts to a parking demand of 6 spaces, for which the applicant seeks a waiver. This may well be little different to the parking demand generated by the existing 6 flats on the first floor of the present building. Given the relatively small scale of this proposal, the proximity of the site to the University of Melbourne, RMIT University and excellent public transport by tram, with close links to the suburban rail network at Melbourne Central, it is appropriate that a waiver should be allowed. I note that Council's Traffic Engineer supported the waiver. I support the engineer's contention that the development should not be included in the resident parking scheme.
10. In relation to the sustainability of the use, Mr Woock and Ms Clyne of the Carlton Residents Association Inc. argued that:

The project represents an unsustainable use of the land in that there is no clear evidence that such a building could be re-used once the flow of international students ceases, while the failure to provide adequate on-site parking makes adaptive re-use problematical as well.

1. No evidence was submitted to demonstrate that the flow of international students was diminishing or that available single accommodation in close proximity to educational institutions would not be taken up by domestic students. However, the lack of need for a proposal has not generally been seen by the Tribunal as a ground for refusing a permit. (See, Shell Company of Australia Pty Ltd and Ors v City of Frankston and Anor

8 APAD 127 at 135 and Melbourne International Student Accommodation v Boroondara City Council [2004] VCAT 800.)

1. Having regard to the foregoing I have determined that the decision of the responsible authority should be set aside and a permit issue.