Ellis Group Architects Pty Ltd v Port Phillip CC [2012] VCAT 5

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

1818TPA201C, 1818TPA202C, 1818TPA203C, 1818TPA204C, 1818TPA205C, 1818TPA501C, 1818TPA502C, 1818TPA503C, 1818TPA504C, 1818TPA505C

1. Pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998 the Owners Corporation Nos. 1, 2, 3 and 4 Subdivision 500744M is joined as a party to this proceeding.
2. The decision of the responsible authority in relation to permit application no. 0778/2010 is affirmed. No permit is granted.

• Mr Andrew Clarke, town planning consultant, Matrix Planning Australia Pty Ltd
• Ms Charmaine Dunstan, traffic engineer, TraffixGroup

Rima Youill, Morris Miccelli, Emily Mudge in person

Dorothy LeClare represented the Owners Corporation Nos. 1, 2, 3 and 4 Subdivision 500744M

To construct an eight storey building to be used for a shop and twenty-four dwellings and associated car parking.

The ground level would comprise a shop (97 square metres), entry and lobby, nine car parking spaces and utility services including waste storage.

Levels 1 and 2 would both comprise three dwellings and storage for residents. Levels 3, 4 and 5 would each comprise four dwellings and a lift lobby. Levels 6 and 7 would both comprise three dwellings.

Access to the car parking would be provided from a laneway to the northern boundary.

At the Bay Street interface, the ground level would be built to the boundary, and levels 1 and 2 would be set back 1.5 metres. Levels 3-5 would be set back six metres and levels 6 and 7 would be set back twelve and thirteen metres. Balconies would intrude into the setback area.

At the rear, the building would be set back eight metres from the boundary, with balconies intruding 2.5 metres to four metres into the setback area.

The side walls would be built to the boundaries, with indents for balconies and a lightwell on the north side and indents for three balconies on the south side.

Materials would include precast concrete panels with applied colour, powder coated aluminium windows and clear glass balustrades.

Application under section 79 of the Planning and Environment Act 1987

Clause 32.04-1 (two or more dwellings on a lot and use of land for a shop in MUZ)

Clause 32.04-6 (buildings and works for a section 2 use in MUZ)

Clause 43.02-2 (construct building or works in DDO)

Clauses 10, 11, 13, 15.01, 15.02, 15.03, 16, 17, 18, 21.01, 21.04, 21.05, 21.06, 22.06, 52.06, 52.07, 52.34, 52.35 and 65

The review site is located on the west side of Bay Street, between Graham Street and Rouse Street, Port Melbourne. The site is rectangular in shape, with a frontage of 6.73 metres, a depth of 57.89 metres and an area of 387 square metres.

The site is vacant. It has a concrete slab over the entire site designed for a shop and child care centre (with rooftop deck). The land is flat and is not constrained by any special features or encumbrances.

The site has access via a laneway that abuts the site approximately two thirds of the length of the northern boundary. The site abuts multi level apartment buildings to the south and west, and a two level shop with heritage values to the north. The site is located at the southwest end of the Bay Street major activity centre. It is proximate to shops, cafes, services and Station Pier and beach. The Port Melbourne light rail station is approximately 600 metres to the northwest.

I inspected the site and its environs on 19 December 2011. The inspection was accompanied by Rima Youil, Emily Mudge (both respondents) and Jim Koumbarakos (for the permit applicant).

1. In August 2010, the permit applicant lodged with Port Phillip City Council an application to develop an eight storey mixed use building on the review site. The responsible authority failed to determine the application within the statutory period. In June 2011 the permit applicant sought a review of the application by the Tribunal.
2. Port Phillip City Council determined that had it been able it would have refused to grant a planning permit. Whilst the responsible authority considers the site to be suitable for a higher density development, it submits this proposal fails to respond to its context, the proposed height and massing would impose unreasonable adverse impacts on neighbours and it would be an inappropriate transition in the streetscape.
3. Residents of the adjoining apartment buildings support the decision of the responsible authority. They consider the development to be excessive and it would adversely affect the amenity of their dwellings. They also consider the access and parking arrangements to be inadequate.
4. The permit applicant contests these grounds of refusal and submits the development complies with planning policy, would be a comfortable fit into the streetscape and would not impose unreasonable impacts on its neighbours.
5. The key issues that I must determine in this matter are:
   • Does the development appropriately respond to its public realm and heritage context?
   • Would the development impose adverse amenity impacts on neighbours?
   • Would the development provide satisfactory amenity for its future residents?
6. I must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Port Phillip Planning Scheme, I have decided to affirm the decision of the responsible authority and direct that no permit be granted. My reasons follow.

Does the development appropriately respond to its context including the planning policy framework?

1. The State planning policy framework generally encourages Melbourne to become a more compact metropolitan area largely by accommodating in the order of half of the anticipated new households within established suburbs. Planning policy encourages most areas within metropolitan Melbourne to play a role in accommodating additional households. Much of the new housing is to be provided through intensive development in and around activity centres and strategic redevelopment sites. Development within higher order activity centres such as principal and major activity centres should not conflict with its neighbours and respond to, and fit into its context.
2. The Port Phillip Planning Scheme is generally consistent with these broad policy directions. The municipal strategic statement encourages development in designated locations that have the capacity for change and are conveniently located to public transport, shops and social infrastructure. Bay Street major activity centre is one of three places in the municipality identified for more intensive development, and the review site is close to the activity centre. The review site is within the Port Melbourne Mixed Use Growth Area, an area designated as a substantial residential growth area[2]. It was common ground amongst the parties this site is within an area designated for intensive residential development. The parties also agreed the policy has been highly successful and the area has been transformed from a place characterised by one and two storey industrial/commercial buildings to apartment buildings up to ten or so storeys. As put by Ms Youil, "long term residents in this area have been living in a construction zone for the past decade".
3. Design and development overlay schedule 1 (DDO1) guides consideration of the appropriate built form in the intensive change area. The overlay generally encourages taller buildings at the southwest end of Bay Street, (including Rouse Street and parts of Beach Road) scaling down to lower buildings at the edges and outside of the intensive change area.
4. The review site is within two sub-precincts within DDO1. Pursuant to clause 2.0 of the schedule to the overlay a development may be designed to comply with the more generous provisions. In the two relevant sub precincts, the preferred height of a building is 10.5 metres within five metres of a street frontage. More than five metres from the street frontage, the preferred height of a building is 18 metres or six storeys. DDO1 also prescribes the maximum height of a building. A building may rise to but not exceed 31.5 metres (ten storeys) in the two relevant sub precincts. Development greater than six storeys (the preferred height) must demonstrate it meets the relevant design objectives and outcomes. The DDO1 also provides guidance regarding scale, massing and design of built form with particular regard to the fit of a new building into the public domain and its interfaces with neighbours. The urban design objectives in DDO1 are generally consistent with those expressed in clause 15.01 and 15.03, and also reflect design objectives of the Design Guidelines for Higher Density Housing (DSE 2004)that guide the assessment of taller residential buildings.
5. In my view the entirety of the planning policy framework encourages intensive redevelopment in the precinct in which the review site is located. Such development should generally comprise relatively tall and robust apartment buildings with commercial uses on the ground floor. Buildings should generally have a three storey street wall consistent with the street walls seen in the remaining older industrial/ commercial buildings. Residential levels above this should be set back. This area is to be the most intense of the areas designated for change, and the tall robust form should as a whole in this precinct should transition to lower forms in other precincts.
6. Planning policy qualifies this broad approach by requiring developments to identify and respond to their site context and neighbours. Whilst the design and development overlay generally encourages buildings in this precinct to be between six and ten storeys, this is a guide and it does not ascribe an as of right entitlement to six storeys. The entire built form is discretionary and must demonstrate it fits within its context and achieve preferred built form outcomes set out in the DDO and the whole of the planning scheme.
7. A new building should demonstrate it provides acceptable amenity for tis future residents and its neighbours, as expressed in the objectives of the design and development overlay:

to achieve an acceptable balance between the opportunity for increased built form, bulk and height whilst maintaining a reasonable level of residential amenity.

1. In addition to the responding to its neighbours and future residents, planning policies require new development to respond to the heritage of the area and make a positive contribution to the public realm. The site abuts four double storey Victorian era shops with residences above in a heritage overlay. State and local planning policies encourage new development to 'respect and enhance the scale, form and setbacks of nearby heritage buildings'. Urban consolidation is to be encouraged 'only when it can be achieved without affecting heritage significance'[3].
2. Hence the capacity of any site to be developed in accordance with the preferred heights depends on its particular context, with particular weight to be given to impacts on the amenity of neighbour, the public realm and heritage fabric. I consider the key planning policy directions that guide my consideration of this proposal to be:
   • the area in which the review site is located is to transition to predominantly residential uses with commercial uses at the ground level to encourage pedestrian activity along Bay Street.
   • development should respond to the wide mix of styles and forms seen in the precinct, and to the preferred built form character.
   • development is encouraged subject to heritage and amenity considerations.
   • development is to be designed to respond to its context, urban character and heritage, and to make the environment liveable and attractive.
   • a comprehensive site analysis should be the starting point for the design process and form the basis for the consideration of the height, scale and massing of development.
   • development is to provide a transition in scale to adjoining lower rise development.
   • development should not unreasonably affect the amenity of adjoining properties by way of overshadowing, privacy, bulk or their environmental performance.
3. I turn to the site's context, and its responses to its interfaces and public realm. I also turn to the amenity likely to be experienced by future residents of the development.

1. The review site is long and narrow, and is accessed via a lane towards the rear of the site. As noted above abutting to its north boundary are four double storey heritage buildings also on long narrow lots. Further north is located a development site on which a six and eleven storey retail and residential development is under construction.
2. Land to the south has been developed for the Bayshore mixed use complex with commercial shops and offices at ground level and apartments above. At ground level on the common boundary with the review site, Bayshore comprises a wall in the order of six to seven metres in height (two levels). Above this wall are located multiple levels of dwellings. Many dwellings are orientated north, facing the review site. The external walls of the dwellings are located approximately 5.1 metres from the boundary, with balconies closer.
3. Another apartment building at No. 54 Nott Street abuts the rear of the review site. This building is seven levels high, comprising six levels of apartments above ground level parking. The walls of some apartments abut the boundary of the review site. Three windows and a balcony abut the north boundary and two balconies abut the west boundary of the review site.
4. The context of this site is that it is a narrow finger of land that abuts on two sides tall apartment buildings with dwellings with habitable rooms and balconies that directly abut or are close to the common boundary. Access to the review site is via three metre wide right-of-ways that also provide access to other apartment buildings. It must respond to a public realm of Bay Street and adjoining heritage buildings. It must respond to residential neighbours sited close to and directly facing the side of the review site. It must also provide acceptable amenity to its future residents. I turn to each of these matters below.

Does the development adequately respond to the public realm and heritage context?

1. The design and development overlay sets out a large number of design objectives and design outcomes to be met and generally accepts that a building of six storeys would comply with the design objectives. A taller building may be supported if it can demonstrate that its design meets all of the design objectives and design outcomes set out in the schedule.
2. I think this proposed building complies with many of the design objectives that relate to the interaction of the development on the public realm of Bay Street as follows:
   • it responds to the development opportunity to provide an intensive development within the area so designated.
   • it would preserve views along Bay Street.
   • it includes an active street frontage capable of providing visual interaction with pedestrians.
   • it can include weather protection for pedestrians.
   • it includes punched wall openings and articulation to Bay Street.
   • it includes articulation and stepping back to the front and rear boundaries.
   • its built form at the first three levels reflects and fits well with the traditional street walls typically found in Port Melbourne.
   • it avoids ground floor parking visible from or accessed from Bay Street.
3. With respect to the design outcomes for precincts 1-3 and 1-4, I am satisfied the development would generally meet the following design outcomes:
   • forms part of a cluster of taller buildings in the area designated for intensive development.
   • the building forms part of a cluster of taller buildings that as a group transition to the lower scale built form found in existing residential areas.
   • the development would not intrude into the open skyscape that characterises Bay Street as viewed from within the public realm.
4. However, I consider the design fails to satisfy a number of the design objectives and outcomes set out in the schedule to the overlay in respect to its relationships to its neighbours. These are to:
   • protect the setting, appearance and significance of heritage place.
   • ensure its height provides a transition between height of the heritage buildings and higher surrounding buildings.
   • articulate side elevations to avoid monolithic tower or slab block form.
   • it fails to minimise overshadowing to Bay Street in the midday period on the winter solstice.
5. In respect to its interface with the adjoining heritage place (the four double storey Victorian era shops) to the north, the development would create a large and highly visible blank wall above and behind the Victorian shops. This large blank wall would form a highly visible backdrop to the heritage buildings. I think the north elevation would appear as a large, dark and imposing form that would dominate and detract from the heritage buildings. It would not be a benign or neutral backdrop to the heritage place. I think its large scale, sheer walls, dark colours and lack of articulation would detract from the fine grain, intricate and human scale the Victorian era shops contribute to the streetscape.
6. I think this development fails to provide an appropriate transition between a tall building and adjoining low scale buildings. The design objectives in the design and development overlay also require new built form to utilise extensive articulation to 'avoid monolithic slab like forms'. In this precinct, where a new building is much higher than an existing building, the taller elements have generally been designed to provide a transition where it is highly likely the lower buildings would be retained to minimise abrupt changes in built form and large expanses of blank walls. The responsible authority advised large expanses of side walls have been approved only where they abut an existing wall of similar height on the common boundary. Blank walls to side boundaries have been limited to two to three levels, anticipating a similar built form with the upper levels set back and articulated by dwellings orientated to the sides. Large blank walls with little variance or articulation are not commonly seen in Port Melbourne, including in the precincts identified for further development.
7. I am not persuaded the proposed building provides a satisfactory transition between the scale and form of the heritage place and the taller built form to the south and it would have adverse impacts on the heritage place. The large expanses of dark and sheer walls rising above and behind the heritage places would be imposing and incongruous. It would an unsatisfactory response to the fine grain built form adjoining to its north. The large blank wall would be an outcome that policy clearly seeks to be avoided. It would be monolithic and slab like, as the small balconies and lightwell provide little break in the side wall.
8. The large blank walls might be acceptable if it is likely they would be visible for only a relatively short period due to the impending development of an adjoining site. However, in this location, the proposed walls would continue to be part of the Bay Street public realm for many years. I can contemplate a taller built form located to the rear of the Victorian shops in the future. It is an obvious and attractive development opportunity. However, I think any taller built form would be likely to be required to be set well back to limit its visibility from Bay Street and its impact on the heritage buildings. Hence much of the proposed north wall would remain visible for a long period and in my view, be highly intrusive to the heritage place.
9. I accept the development complies with many of the design objectives and outcomes set out in the design and development overlay. However, I think the proposed development would have one important adverse impact on the Bay Street public realm. At the equinox the development would overshadow Bay Street from approximately 11.00am and by 3.00pm as the shadow would extend two thirds of the width of the street. The extent of overshadowing of Bay Street would be greater at the winter solstice. On that day, the shadow would extend across the southeast side of the street by 11.00am. The whole width of Bay Street would be overshadowed from 2.00pm. This is contrary to the design and development overlay and in conjunction withy my concerns regarding the impacts on the adjoining heritage shops, leads me to conclude the proposed development is not sufficiently respectful of the public realm and its heritage interface.

Would the development impose adverse amenity impacts on neighbours?

1. The responsible authority and respondents submitted the development would have adverse impacts on the amenity of residents of dwellings on the north interface of Bayshore and the east facing dwellings of No. 54 Nott Street. Possible adverse impacts would include additional traffic and parking congestion in laneways, overshadowing and overlooking of habitable rooms and balconies, visual bulk and loss of daylight to habitable rooms. The loss of natural light would also require higher consumption of energy in the affected apartments. I note the respondents did not object to the loss of their presently attractive views of Melbourne's CBD and inner suburbs. Respondents conceded those views would be largely obstructed when the development at No. 101 Bay Street currently under construction is completed.
2. Mr Clarke and the permit applicant opined the precinct has been earmarked to be a preferred location for intensive residential development and is within a Mixed Use zone. Residents who choose to live in this area cannot reasonably expect the level of amenity enjoyed in lower density suburban residential streets. There is a trade-off. They have a lesser amenity and privacy in their dwelling and accept more overlooking, overshadowing, noise and hustle and bustle from neighbours. They accept smaller open space areas and smaller living areas. To balance these impositions, residents enjoy convenient proximity to cafes, shops, restaurants, public transport and Port Phillip Bay. Furthermore, many residents in apartment buildings might be relatively transitory, residing for months or a few years before establishing longer term residence in Melbourne's established or new suburbs.
3. In general terms this approach has been supported by the Tribunal when considering the amenity of higher density developments. I think the responsible authority and the respondents fairly conceded the general approach. However, they noted many of the objectors are not transitory. They expect to reside in their apartments for long periods as owner/occupiers. Whilst they accept they may not enjoy comparable levels of privacy and amenity to a lower density suburban place, this development would be more intrusive and imposing than is reasonable or contemplated in planning policy.
4. As the building is taller than three storeys guidance on amenity and interfaces between buildings is provided by the Design Guidelines for Higher Density Housing (DSE 2004). The guidelines provide objectives and design suggestions to respond to these amenity and interface issues as follows:

Objective 2.5 To ensure building separation supports private amenity and reinforces neighbourhood character

Design suggestion 2.5.3 Use side setbacks where they are important for private amenity. For solar access or avoiding unreasonable impacts on neighbouring properties.

Objective 2.6 To ensure areas can develop with equitable access to outlook and sunlight.

Design suggestion 2.6.1 Allow as best as possible an equitable spread of development potential throughout the area.

Design suggestion 2.6.2 Maintain sunlight and daylight access to adjoining private open spaces in accordance with clause 55 of the Planning Scheme.

Design suggestion 2.6.3 Provide spacing between taller buildings to provide outlook, daylight access and privacy.

Design suggestion 2.6.4 Orient new buildings to optimise sunlight and amenity for dwellings, private open space.

1. Except for the reference to clause 55 in design suggestion 2.6.2, the above principles are general in nature without specific standards, and a judgment must be made on the particular circumstances and context.

What would be the impacts on the southern interface?

1. Dwellings on the north side of Bayshore facing the review site are set back 5.1 metres from the common boundary. Balconies intrude approximately 850mm into the setback, resulting in a separation of 4.24 metres. The dwellings in Bayshore appear to have been designed for the bedrooms and living room to be adjacent to the north wall to access natural light. The proposed building would comprise an eight storey wall adjacent to the common boundary, 5.1 metres from the walls to the Bayshore dwellings.
2. The shadow diagrams indicate the north facing habitable rooms and balconies in Bayshore would be overshadowed by the proposed development. Most north facing dwellings in Bayshore would be in shadow until 2.00pm, and the dwellings on lower levels would always be in shadow at the equinox. Residents of the Bayshore dwellings would have views of the sky only by craning their heads upwards at a sharp angle. They would have only fleeting views of Bay Street by twisting their heads sharply to the right.
3. I accept that as the south elevation of the proposed building is a blank, solid wall, there would not be any overlooking to the Bayshore dwellings. However, a largely blank and sheer wall with a height of 25.8 metres, extending for between 36 metres and 48 metres, located approximately five metres from existing habitable room windows would be unreasonable. I agree with the respondents that the intensity of daylight and solar access to balconies and apartments in Bayshore would be considerably diminished. This would be likely to have adverse consequences for energy consumption as additional lighting, heating and clothes drying would be required.
4. The setbacks to the common north boundary provided by the Bayshore development are not in themselves sufficient to ameliorate the visual bulk, overshadowing, diminished daylight and loss of urban landscape that would be experienced by the residents in Bayshore. Whether the designers of Bayshore reasonably expected the development of this review site would also include setbacks or Bayshore should have provided greater setbacks to protect the amenity of residents is irrelevant. Bayshore is an existing building, and development proposals for the review site need to respond to the prevailing circumstances.
5. I am satisfied the presence of a 25 metre high blank wall within five metres of habitable rooms and balconies would impose unreasonable amenity impacts on adjoining residents to the south. I think the outcomes do not meet the objectives and design suggestions included in the Design Guidelines for Higher Density Housing (DSE 2004), or the various policy directives in the planning policy framework that requires development to not conflict with, and to have regard for the amenity of its neighbours. A less intrusive response is required.

What would be the impacts on the western interface?

1. The proposed building would be set back eight metres from the rear boundary. Balconies at levels 2-7 would extend 2.5 metres into the setback. A balcony at level 1 would extend four metres into the setback.
2. Two unscreened balconies abut the west boundary, and three openable windows and a balcony abut the northwest boundary. Balconies without screening at each level of No. 54 Nott Street also abut the review site approximately 20 metres from the rear boundary.
3. The building would not extend beyond the three windows, but the balconies of the proposed building would abut the existing balcony on the northeast wall. The balconies of the proposed building would be within 5.5 metres of existing balconies to the west. The existing east facing balconies of No. 54 Nott Street some 20 metres from the west boundary would abut a large blank wall.
4. It is highly unusual that a building has windows to a wall on a side boundary. However, they exist and this proposal should have responded with more generosity rather than imposing new balconies adjacent or very close to existing balconies. Balconies also should not be located adjacent to the three openable windows. Greater setbacks are required. In respect of the two rear balconies, I think a separation greater than 5.5 metres should be provided.
5. I am less concerned with the effect on the balconies approximately 20 metres from the rear boundary. These balconies are small and appear to be adjacent to bedrooms rather than living rooms. A person standing on the small balconies or within the bedroom would have a view to Bay Street and beyond, and the rooms would continue to receive daylight and ventilation. The apartments also have other larger balconies more removed from the review site. I think a long boundary wall would not be unreasonable in this location, however, its height should be considerably less.

Would the access and parking arrangements be acceptable?

1. The proposed development would provide nine car parking spaces at the ground floor to the rear of the shop. The car parking spaces would be accessed via a 5.8 metre wide lane. That lane is in turn accessed from Little Bay Street, a lane with a width of 2.8 metres to 3 metres between Nott Street and Bay Street. It is one way (east to west) except for the west section adjacent to No. 54 Nott Street.
2. Seven garages presently abut the lane that provides access to the review site. The heritage properties also access their sites from this lane. The respondents submitted that turning circles are narrow, sightlines truncated by the corners of buildings, and additional traffic would impose unreasonable dangers to vehicles, cyclists and pedestrians using the lanes and Bay Street.
3. I note the responsible authority considers the access arrangements to be acceptable. Ms Dunstan also opined the access arrangements would be satisfactory. In her view, the development would generate 45 movements in a typical day, a relatively low number of additional vehicle movements in the lane. She estimated the number of movements in the peak periods to be 5 movements in each hour, or one movement every 12 minutes. She considered this reasonable, and opined that residents who use the garages at the rear of Nott Street would exercise due care and diligence to minimise impacts. If accidents occurred, they would be likely to have minimal consequences as they would likely be at low speed, and result only in property damage.
4. In general terms I concur with Ms Dunstan. The rear lanes are the only appropriate access for the review site. It would be entirely inappropriate to access the site from Bay Street, as that arrangement would have adverse impacts on pedestrian and traffic movements and also have adverse urban design outcomes.
5. The proposed arrangement would be akin to travelling through a small commercial car parking area. Vehicles usually travel slowly and drivers are usually alert for cars reversing from parking bays. Similarly, people reversing from bays would be alert to cars travelling along the access aisle. I think the arrangement to be workable provided adequate care is provided and the numbers are small.
6. Nine car parking spaces would be provided for 24 dwellings. No parking would be provided for staff of the shop, or any visitors. The development would have a shortfall of 49 spaces compared to clause 52.06, or 24 spaces compared to clause 55.03-11. The responsible authority considered the number of car parking spaces to be inadequate. It however accepted the deficiency in spaces could be offset by three car share spaces located in the basement. It also suggested the shortfall could be lessened by the inclusion of two or three car share spaces. Ms Dunstan opined the shortfall would be acceptable as buses and the Port Melbourne light rail are proximate, and the likely residents would have relatively low car ownership rates. She also opined most residents who choose to reside in this development would not own cars as car parking would not be available. Households more reliant on cars would choose to live in other apartment buildings that provide car parking.
7. I think the provision of car parking is unacceptable. Traffic consultants routinely advise the Tribunal that approximately three out of ten single bedroom households do not own a car, and some limited waiver of spaces can be, and often is supported. However, in this case, I am not persuaded a waiver of seven out of ten spaces is justified. The Port Melbourne light rail is some 600 metres from the site and provides a convenient link to Melbourne's CBD. However public transport links from Port Melbourne to non CBD locations are less convenient. I am not persuaded the apartment market is so diverse, and choice so free that households can pick and choose their residence with the freedom suggested by Ms Dunstan. My understanding is that both the rental and owner occupier markets are highly competitive. Households may not gain the dwellings that best suit their car ownership situation, and would be likely to choose a dwelling for a host of reasons unrelated to parking availability. I think adopting a "free market" approach that relies on consumers making rational housing choices based on parking availability to achieve a workable balance between car ownership and the provision of car parking is an abrogation of sensible planning and a recipe for conflict over public parking resources.
8. I am also not convinced that car share spaces would adequately supplement the proposed shortfall. Whilst I support their provision, I think they presently are a travel solution for a very small proportion of people. Much more rigorous research and evaluation of car share schemes is needed before they can be accepted as a mainstream alternative to car ownership by individual households.
9. I find the access arrangements to be generally appropriate, but the provision of car parking to be inadequate for the number of dwellings proposed. Given the dimensions of the site prevent to inclusion of basement parking, a considerable smaller development is appropriate, or parking would need to be provided off site.

Would the development provide satisfactory amenity for its future residents?

1. The first and second floor would each have three dwellings, the third, fourth and fifth floors would each have four dwellings and the sixth and seventh floor would each have three dwellings.
2. The dwellings adjacent to Bay Street, (dwellings 3, 6, 10, 14, 18 and 24) all have a bedroom that relies on borrowed light. The bedroom is generally within six metres of the external window, and would obtain secondary light via a living area that is wider than six metres. The Tribunal consistently concludes that bedrooms with borrowed light can be acceptable if it is the only bedroom in the dwelling, the wall nearest the external window has openings, it is not located too far from the external window and it receives its light through a wide room. The amenity of these dwellings is enhanced by generous balconies that would overlook Bay Street and Beacon Cove, adding to their ambience.
3. Dwellings at the western end of the building would have modest amenity. The bedrooms in all these dwellings (1, 4, 7, 11, 15, 19 and 22) are located on the external wall to maximise their access to light and ventilation. This arrangement responds to their outlook being little more than a concrete walled lightcourt. Their orientation to the west, and the height of the adjoining buildings would mean these dwellings would receive little direct sunlight and have limited ventilation. Their close proximity to No. 54 Nott Street and Bayshore would also diminish the privacy.
4. Apartment 1 at the ground level has an outdoor terrace of 48 square metres. However, this area would be overhung by a balcony above that extends four metres from the external wall, and it is at the bottom of what is effectively a lightcourt 25 metres deep. I think it would be a claustrophobic space with no outlook and little amenity.
5. The responsible authority was critical of the amenity of the internal apartments, being dwellings 2, 5, 8, 9, 12, 13, 16, 17, 20 and 23. I agree with the responsible authority. Light to these dwellings would be provided by small balconies or a lightwell. Balconies to dwellings 9, 13 and 17 would be on the south side of the building and hence would be overshadowed. These dwellings would receive limited natural light. With the exception of the dwellings facing Bay Street, most of the dwellings in this development would have very poor energy efficiency.
6. I think a more generous design is needed to ensure residents in the middle and western apartments would have a reasonable internal amenity rather than residing in dwellings that would be dark, foreboding and have little visual or sensory connection to their external environment. New residents should reasonably expect a better environment than offered by this development.

1. I accept this site is within a precinct identified for intensive development, and such development should in general be optimised to make efficient use of scarce opportunities in Port Phillip. I acknowledge the design and development overlay encourages buildings in the order of six to ten storeys.
2. However, within this strategic context, the starting point for the design of a new building is its physical context. What is the character and form of the built form at its interfaces? What are the design outcomes sought by policy? In my view this proposal fails because the design has responded only to the strategic planning context and not the physical context. It has responded to the height controls in DDO1 and it tries to insert a tall narrow building onto a site that has significant constraints. It has not responded well to those constraints.
3. Consequently I am persuaded that it would have significant adverse impacts on residents to the south, and invade the privacy of the residents to the west. It would also be a blunt and overwhelming interface to the sensitive heritage interface on its north side, and it also impacts on the Bat Street public domain. Whilst I think a low number of vehicles can safely access the site via the laneways, access is constrained. I also think it fails to provide adequate car parking on site. I am unconvinced about the waiver sought. Finally I think the amenity of most of the apartments would be unacceptable. They would have limited access to daylight, face dismal outlooks and their residents would rely heavily on the amenity of the locality to compensate for the very limited amenity of many of the dwellings.
4. I conclude this development is unacceptable and cannot be supported. In my view, this proposal cannot be modified through permit conditions. The designer must do what the planning scheme requires; carefully examine its context and find creative design solutions. A comprehensive new approach is needed, and alternate design solutions are possible. I think various design solutions are possible. These could include a lower building of three to four storeys as supported by the responsible authority and for which there is current planning approval. A slightly taller building might be possible but it would need generous space midway in the built form to provide acceptable amenity to Bayshore and its own residents. Development of this site in conjunction with the development of the rear of the heritage shops is also an approach worth exploring.
5. It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be affirmed and no permit be granted.

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