1. The decision of the Responsible Authority is set aside.
2. In permit application 0631/08 a permit is granted and directed to be issued for the land at 33-37 Simmons Street, South Yarra in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • Use and development of an eight storey building for dwellings and associated reduction in the car parking requirements in a Business 2 Zone, Special Building Overlay and Environmental Audit Overlay.

Mr Chris Canavan QC and Ms Emily Porter of Counsel, instructed by Deacons Lawyers.

• Mr Peter Williams, architect of Williams Boag Architects;
• Mr Stuart McGurn, planning consultant of Fulcrum Town Planners;
• Mr Jason Walsh, traffic engineer of Cardno Grogan Richards.

The proposal is for the demolition of the existing building and the construction of an eight storey building for the purpose of accommodating 50 dwellings (including one home office) and 57 car spaces at ground level and within two basement levels.

The building would be constructed to all property boundaries, with at the upper levels. The building would have an overall height of 27.85m and be approximately 21m high at its interface with Dye Works Park.

A contemporary design is proposed with two distinct building elements on the east and west sides of the site. Materials include concrete panels, render, face brickwork, metal cladding, aluminium louvers and timber panelling.

An entry off Simmons Street would provide pedestrian access to the building. All vehicle access would be obtained via Oak Place.

A total of 57 car spaces are proposed - 42 spaces in two basement levels and 15 at ground level (10 in 5 car stackers). Access to the basement levels would be via a car lift from Oak Place.

Application under Section 77 of the Planning and Environment Act 1987 for review of the refusal to grant a permit.

Clause 34.02-1: use the land for the purpose of dwellings.

Clause 34.02-4: construct a building or construct or carry out works.

Clause 44.05-1: construct a building or construct or carry out works.

Clause 52.06-1: reduce the number of car spaces required by the table at Clause 52.06-5.

Clause 18.02 (Car parking and public transport access to development)

Clause 22.05 (Residential Development in Commercial Areas Policy)

Clause 22.06 (Residential Character, Amenity and Interface Policy)

Clause 52.35 (Urban Context Report and Design Response for Residential Development of Four or More Storeys)

The subject site comprises for lots on the northern side of Simmons Street, between Bray Street to the west and Palfreyman Street to the east.

The site is rectangular in shape. It has a frontage to Simmons Street of 22.73m and an abuttal to Oak Place of 32.61m, yielding a total area of approximately 750m2.

The site is currently occupied by a double storey brick building, previously used for industrial/commercial purposes. The building abuts the side and rear boundaries and is set back approximately 5m from the frontage.

There are 3 vehicle crossovers to Simmons Street and one to Oak Place.

In the surrounding area there are a range of land uses, building types and lot sizes. In the area to the west of Chapel Street there is a range of retail and commercial services. A part 9 and part 13 storey building - comprising 242 dwellings, licensed restaurants and other facilities - is currently being constructed on the corner of Simmons, Bray and Ellis Streets. Elsewhere along Simmons Street there are small-scale industrial and commercial uses. There are primarily residential uses to the south and east.

The land abutting to the north is developed with a single storey warehouse building facing Ellis Street. It also has vehicle access to Oak Place.

On the southern side of Simmons Street there is the Horace Petty public housing estate. It includes two 13-storey blocks of flats angled to the street and medium density 'walk-ups' of 3 to 5 storeys opposite the subject site. Associated car parking is adjacent to Simmons Street.

To the west of Oak Place there is a two storey industrial building fronting Simmons Street.

The land to the east of the subject site is developed as Dye Works Park. One of the main entrances to the park is within the south west corner, adjacent to the subject site. A public car Park is located to the north of the park, with access from Ellis Street.

Further to the east, beyond Palfreyman Street, there is an established residential neighbourhood.

After the hearing I undertook an external inspection of the subject site and the neighbourhood, including Dye Works Park.

1. Emery O'Bryan Pty Ltd applied to the Stonnington City Council for the 'Use and development of an eight storey building for the purposes of 51 dwellings and a reduction in the standard car parking requirement.'
2. In response to the giving of notice of the application, the Council received 6 objections - from four separate properties.
3. In response to internal referral of the permit application, there was general support from a number of Council departments.
4. The Council did not adopt the Planning Officer's recommendation that a Notice of Decision to Grant a Planning Permit be issued. On 23 July 2009 the Council issued a Refusal to Grant a Permit. Reasons for refusal related to overdevelopment; excessive height; inadequate and poorly designed car parking access; overshadowing of the adjoining public open space; internal design and amenity; and lack of a suitable active street frontage to Simmons Street.
5. The permit applicant seeks a review of that decision. None of the objectors are parties to this proceeding.[1]
6. In the light of the submissions and expert evidence at the hearing, and my subsequent inspection, I consider that the key issues to be determined are:
   • Whether the proposed building is too high given the strategic and physical context of the subject site?
   • Whether the proposed building would cause unreasonable overshadowing of public open space?
   • Does the proposal provide a suitable active frontage to Simmons Street?
   • Would the proposed development unreasonably affect the development potential of the land to the west of Oak Place?
   • Are the access and car parking arrangements adequately designed and convenient for future residents?
7. My principal findings are that the scale of the proposed building is appropriate given the strategic and physical context of the site; the resulting overshadowing of public open space is marginal and not unreasonable; there would be suitable active interfaces to Simmons Street, Oak Place and Dye Works Park; future overlooking to the west has been effectively addressed; and with minor modifications the vehicle access and car parking arrangement would be convenient.
8. In setting out the reasons for my decision I do not recite all of the documentation tendered by the parties and provided as expert evidence as all material is retained on the Tribunal's file.

1. Before considering the key issues I note that the Council accepts that the subject site is a suitable candidate for substantial redevelopment. In that regard, I note the following:
   • The land is redundant industrial land within a Business 2 Zone that is suitable for urban renewal.
   • The subject site is within, or just outside, the Prahran/South Yarra Principal Activity Centre.[2] It is only a short walk from Chapel Street - the spine of the Activity Centre - and its wide variety of commercial, dining and recreational offerings. It is surrounded by various public transport options, including railway stations and tram routes. Accordingly, the proposal would effectively respond to State and local policy objectives for urban consolidation and higher density housing adjacent to major transport corridors and within activity centres.
   • The provision of 50 dwellings of various sizes would improve housing choice and help accommodate future housing needs, as identified in the Council's Municipal Strategic Statement.
   • Apart from in this pocket of land, there are few other large sites near Chapel Street, to the south of Toorak Road, that are suitable for intensive redevelopment.
   • In the Chapel Vision Structure Plan 2007-2031[3] - which represents the Council's most recent strategic planning for this area - the subject site is within a 'Substantial Change Area'. As defined in the document, Substantial Change Areas are:

...those areas that can accommodate significant amounts of new development and where there may be substantial changes from the form and character of existing development.

• In Chapel Vision the subject site also lies within the 'Jam Factory and Environs Key Change Area' that is identified as presenting 'significant opportunity for new medium density residential development'.

1. I agree with Mr Wong that despite the 'favourable locational characteristics' of the site, there are factors tempering intensive redevelopment. As put by Mr Wong:

...the successful redevelopment of the South Yarra activity centre does not solely rely upon more intense development but rather its ultimate success will be achieved through the redevelopment taking into account important issues such as site context and maintaining sunlight to key areas within the centre.

1. The specific site context and potential overshadowing of public open space are amongst the considerations under later headings.

Whether the proposed building is too high given the strategic and physical context of the subject site?

1. One of the Council's reasons for refusal is that 'The proposed height is excessive and exceeds the preferred heights established by Chapel Vision.'
2. With respect to building heights, Mr Wong acknowledged that the current policies in the planning scheme are no longer particularly relevant to the subject site. For instance, pursuant to Map 1 at Clause 22.02 the subject site is located within Precinct J within the 'Chapel Street and Toorak Road Precincts' where there is a preferred building height of 12m, with setbacks consistent with adjoining properties.
3. As acknowledged by Mr Wong, Chapel Vision envisages a greater building height on the subject land. The block bounded by the west side of Dye Works Park, Simmons Street, Bray Street and Ellis Street is identified as an area where the 'Built Form and Preferred maximum building height' is '15m-23m (4-6 levels)', with lower development of '8m-12m (2-3 levels)' for the 6m sections adjacent to the streets and park. Effectively, it envisages a podium-tower style of development.
4. The proposed building height exceeds the 'Preferred maximum' in Chapel Vision - by 4.85m on the higher western element of the building. Furthermore, the building does not adopt a podium-tower style. The extent of building mass exceeding the preferred form in Chapel Vision was usefully illustrated on annotated elevations tendered by Mr Wong.
5. Chapel Vision reflects the most up-to date strategic thinking for this Principal Activity Centre. VCAT members have considered it to be the most useful and critical policy affecting this area.[4] However, while it may eventually be implement via an amendment to the planning scheme, it has no current statutory status. Nor is it the basis of any Design and Development Overlay affecting the subject site. Accordingly, it should not be applied as a de facto height control.
6. In responding to the referral of the permit application, the Council's Strategic Planning Unit noted that Chapel Vision is 'not intended to be prescriptive'.[5] I endorse that view. The 'Preferred maximum building height' is only an indicative height. It is certainly not a mandatory requirement.
7. Furthermore, I agree with Mr. Canavan's observation that the height provision has 'since been overtaken' by the Tribunal's approval of the 13 storey Society Apartments[6] - only 100m or so to the west of the subject site. The approval and subsequent construction of that development has altered the physical context of the subject site and changed the context for what Chapel Vision can expect for future development in this block.
8. With respect to the preference for podium-tower style development in Chapel Vision, I note that that is not the form adopted by the housing estate towers or the Society Apartments development. As highlighted by Mr Canavan, in approving the Society Apartments development Member Read cautioned against:

...uncritical insistence on podium and tower design for tall buildings without due regard to the particular circumstances of each design and its particular context.[7]

1. Like Member Read, I do not consider that there 'is any pressing reason to insist on the use of podium tower design principles', at least in an abstract sense. The acceptability of the proposed tower form should be judged in terms of any specific impacts. Furthermore, I note that the Council's Urban Design Advisor considered that a tower form on the subject site has the potential to form the eastern 'book-end' to the Society Apartments building.[8]
2. Ultimately, I concur with the Urban Design Advisor's conclusion that:

...the proposed scale and character of this development is compatible with its location, in close proximity to Chapel Street, and the general nature of the emerging character of this precinct.

1. That view was adopted by the Council's Planning Officer and reflected in Mr McGurn's evidence.
2. I agree with Mr Canavan that the starting point should be an acknowledgment that the subject site is within a 'Substantial Change Area' where sites 'should be developed to their highest and best use'. As put by Mr Canavan in his opening remarks, the question should be 'Not why, but why not eight levels on this site?'
3. Under the following headings I consider whether there are reasons 'why not' with respect to the specific matters raised in the grounds of refusal.

Whether the proposed building would cause unreasonable overshadowing of public open space?

1. One of the Council's reasons for refusal is 'The proposal will result in unreasonable and inappropriate overshadowing of the adjoining public open space'. As elaborated upon by Mr Wong, that refers to both the overshadowing of Dye Works Park and the southern side of Simmons Street.
2. Mr Wong submitted that one reason why Chapel Vision seeks to place limits on the height of new buildings is to maintain solar access to footpaths and public places. He highlighted that Chapel Vision expressly seeks to protect public open space and 'Pedestrian priority spaces' from overshadowing between the key daylight hours of 10am to 3pm. One of the 'Desired objectives' for the Jam Factory and Environs is to 'Ensure additional development does not overshadow ... Dye Works Park.' The southern side of Simmons Street is also identified as a 'Pedestrian Priority Space' and an area where solar access should be retained.
3. The shadow diagrams submitted with the application show both existing and proposed shadows at the Equinox at every hour from 9am until 3pm. They include the existing shadow cast by existing trees in a dappled form. Mr Williams advised that modelling allows reasonably accurate depiction of shadows cast by foliage.
4. In relation to Dye Works Park, Mr Wong submitted that the shadow diagrams show that the proposed building will lead to approximately 8m of overshadowing at 1pm and up to 26m (when scaled) of overshadowing at 3pm. He argued that 'this degree of overshadowing is substantial and will have a significant impact on the amount of sunlight to this important piece of open space.' Mr Wong also argued that overshadowing caused by the proposed building should not be considered in isolation. He highlighted that there are two other sites adjoining the west side of the Park, as well as a further seven sites to the north of Ellis Street. As this area is earmarked for substantial redevelopment, Mr Wong submitted that it is critical to consider the cumulative impact of overshadowing of the Park.
5. In relation to the south side of Simmons Street, Mr Wong highlighted that the shadow diagrams show that the proposed building would result in overshadowing of sections of the southern side of Simmons Street at all times of the day between 9am and 3pm. Again, he highlighted the cumulative effects of overshadowing caused by existing, proposed and future buildings along Simmons Street.
6. I acknowledge that the proposed development would result in additional overshadowing of the south west corner of Dye Works Park and sections of the land to the south of Simmons Street. The question is whether that is an unreasonable off-site amenity impact.
7. The Council's Urban Design Advisor, Landscape Coordinator[9] and Planning Officer all considered that the extent of overshadowing was reasonable. Mr McGurn reached the same conclusion. It was his evidence that:
   • The level of overshadowing over Simmons Street is 'acceptable in the context of the site's location and will have a limited impact on the public realm'.
   • The proposed development will not cast shadows over the Office of Housing property.
   • The extent of shadow overshadowing of Dye Works Park would be limited to the afternoon, with the greatest impact at 3pm. During that time shadows would generally fall within the existing shadows cast by the mature trees along the western boundary of the Park and over the trafficable entry zone to the Park.
   • As the proposal would not cause overshadowing of the main active play areas within the Park, it 'will not unreasonably impact on the use or enjoyment of the Park in general'.
8. Bearing in mind the extent of additional shadow, and where it is cast, I agree with the various Council officers and Mr McGurn that the extent of additional shadow is reasonable.
9. The affected areas to the south of Simmons Street are primarily the footpath and the housing estate car park. There is already substantial shading by trees. The area within the northern boundary of the estate is identified as a 'Pedestrian priority space' in Chapel Vision. It is unclear what that actually involves. Nevertheless, I am satisfied that there would still be solar access during parts the day to that area and the footpath.
10. My inspection revealed that the Dye Works Park is an attractive space. It has areas apparently designed to have full sun access. It also has areas that are designed to offer shade - from a shade structure and dense tree plantings (described as an 'urban forest'). With various new housing developments in the area, the Park is likely to be increasingly used, perhaps by a different demographic. I tend to agree with Mr McGurn that one cannot expect a park in this area to be free from shadowing all day. Critically, however the proposal would not impact on the solar access to those areas designed for either active play or passive 'sunbathing'.
11. Shadow diagrams depicting the overshadowing that would result from a building that accorded with a maximum height and 2-3 level podium envisaged by Chapel Vision have not been prepared will. However, I agree with Mr McGurn that it would be likely that a form encouraged by Chapel Vision would result in overshadowing of the southern footpath and some extra shadowing of the Park. It is likely that the 'Desired Outcome' that new development does not overshadow Dye Works Park will be difficult to achieve.
12. Inevitably, there is uncertainty about the cumulative impact of overshadowing arising from future redevelopments in this area. The proposed building would obviously cause less overshadowing if the height was reduced, with setbacks at the upper levels. Nevertheless, on balance, I consider that a modest extra shadow is acceptable. I do not accept Mr Wong's submission that 'this ground alone justifies a refusal of the permit application'.

Does the proposal provide a suitable active frontage to Simmons Street?

1. A further reason for the Council's refusal is 'The proposal does not present a suitable active street frontage to Simmons Street'. As explained by Mr Wong, the Council's concerns arise from the fact that the proposed use is wholly residential. Mr Wong submitted that a mixed use development would be expected in this activity centre location. He argued:

...a café or similar use in the south east corner of the building would have been the type of active interface that a site of this type demands. Such a use would have achieved an appropriate degree of active integration between the subject land, Simmons Street and Dye Works Park.

1. My inspection confirmed Mr McGurn's observation that Simmons Street is now 'degraded'. There is an open car park on the south side, although the trees are a positive feature. The warehouses on the north side have unattractive concrete aprons.
2. There can be no doubt that the proposed building will substantially improve the Simmons Street streetscape. Although the existing building has a number of windows facing the street, the dominant elements are the car parking area and sections of sheer brick wall.
3. Arising from the Special Building Overlay requirements, the ground floor level must be raised 750mm above natural ground level. As Mr Williams observed, that constrains the possibility of direct entry to ground level premises. In any event, I agree with Mr Williams that a café or similar use is not necessary to achieve a suitable activation of the street. At the ground level the proposed building would have a large home office on the corner of Oak Place, a raised planter box, the main entry and elevated windows of one dwelling. At the higher levels they would be balconies facing Simmons Street, as well as habitable room windows.
4. The existing building effectively turns its back to Dye Works Park. In contrast, the proposed building would provide an active interface - with windows and balconies at each level proving an attractive backdrop and increasing surveillance. As noted during the hearing, there is also the prospect of creating some openings in the blank car park wall that extends almost half way along the ground level. Such openings - or perhaps plantings (in the form of a 'vertical wall'[10]) - would enhance the presentation to the Park.
5. The windows facing Oak Place would also enable far greater activation than the existing building.
6. My finding is that the proposed building will provide a suitable active interface to Simmons Street, Oak Place and Dye Works Park.

Would the proposed development unreasonably affect the development potential of the land to the west of Oak Place?

1. Although it was not specifically raised in the Council's reasons for refusal, there is the issue of whether the proposed zero setback to the Oak Place boundary adequately anticipates the possible future redevelopment of the land immediately to the west of Oak Place.
2. On that issue I note that the 'Guidelines for Higher Density Residential Development'[11] include the following:

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

DESIGN SUGGESTION 2.6.1: CONSIDER THE POSSIBLE FUTURE DEVELOPMENT OF ADJOINING SITES AND ALLOW, AS BEST AS POSSIBLE, OR AN EQUITABLE SPREAD OF DEVELOPMENT POTENTIAL THROUGHOUT THE AREA.

1. Upon reflection after the hearing I recognised that this issue was only given cursory attention at the hearing. Although Mr Wong cited various provisions of the Guidelines, including Objective 2.6, he made no submissions regarding the options for future development of the land to the west. During the hearing I did not seek advice on the Council's attitude to the issue. Mr Canavan's' submissions did not address the issue. It was only briefly mentioned in Mr McGurn's responses to cross-examination and my questioning of Mr Williams. Furthermore, while the owner of the land to the west was an objector, they were not a party to the proceeding.
2. I gave the parties an opportunity to make further submissions on the specific issue of the impact of the proposed development on the future development of the land at 29-31 Simmons Street.[12] I have considered the submissions that were received in response to my order.[13]
3. I understand that the applicant's survey shows that the Oak Place reserve has a width varying between 5.35m (at the northern end) and 6.15m (at Simmons Street). However, the subject site does not extend the whole length of Oak Place. Adjacent to the northern end of the subject site the width of the road reserve is 5.51m.
4. In their further submissions the parties agreed that the primary issue arising from the distance between the properties on the east and west of Oak Place is the potential for future overlooking.
5. Essentially, the Council considers that the 9m ResCode threshold is too stringent a requirement in this location. It wants a minimum separation of 6m between buildings. That accords with the approach taken within the Forrest Hill Precinct (to the north of Toorak Road) where the Council allows unscreened windows up to 6m apart to face onto each other. The Council considers that the building setback should be increased to facilitate this minimum setback and that 'a re-working of the floor plate... could be comfortably achieved given the reasonable size of the internal spaces proposed'.
6. There is very little difference between the proposed setback and the minimum setback sought by the Council. Given the narrowing of the road reserve, the difference is no more than 490mm (at the north end).
7. Ultimately, I consider that the proposed zero setback to Oak Place is acceptable. According to Chapel Vision, these properties are within a 'Substantial Change Area'. Furthermore, while a podium-tower style development is envisaged in the structure plan, there is no suggestion that the lower levels should be set back from the street. Indeed, there is no suggestion that the building should be set back at all from the side boundary (Oak Place) at any level.
8. At the hearing Mr Williams suggested that this is a situation of 'first in, first right'. I do not accept that. The proposed development should anticipate and allow for the equitable development potential of the land to the west. Ultimately, I am satisfied that the proposal achieves that. The proposed building includes devices on the west elevation to limit overlooking. There will also be options for a future building on the west side of Oak Place to respond to development on the east side - including off-setting windows and balconies, as well as screening.

Are the access and car parking arrangements adequately designed and convenient for future residents?

1. The Council has not taken issue with the quantity of car parking spaces to be provided on the land. A ground of refusal is that 'The proposal will be served by inadequate and poorly designed car parking access and exit arrangements'. As explained by Mr Wong, that relates to the proposed access to car spaces in the basement levels via a single car lift.
2. Mr Wong submitted that reliance on a car lift will cause unreasonable impacts on Oak Place and Simmons Street and will provide car parking that is not convenient for future occupants. He cited the following factors:
   • Only one car lift is proposed, which provides access to almost 3/4 of the total parking spaces;
   • The arrangements for maintenance and 'break down events' (and flow on demands for on street car parking) are unknown;
   • The constrained width of Oak Place;
   • The busy and relatively congested nature of Simmons Street;
   • The high usage of the on-street car spaces on Simmons Street; and
   • The lack of a waiting area for the car lift.
3. I have never before considered a proposal involving a car lift. Nor have I had personal experience of the use of a car lift. The evidence of Mr Walsh was that car lifts are becoming increasingly common, particularly for developments on tight sites in inner-city areas. I was referred to various VCAT decisions which have endorsed the use of car lifts. For instance, in Enward Pty Ltd v Port Phillip CC the tribunal commented that car lifts:

...have their place in an inner city area where it may be economically and physically impossible to gain a reasonable yield and provide sufficient parking and access arrangements.[14]

1. I acknowledge the factors highlighted by Mr Wong. However, it was Mr Walsh's evidence that one lift is suitable to serve the 42 car spaces in the basement levels.[15] Mr Walsh concluded that the proposed car lift 'clearly has sufficient capacity to service the basement car park' - based on a conservative car lift travel speed, the proposed travel distance, the number of spaces on each basement level and the likely peak hour traffic generation rate. In the absence of evidence to the contrary, I adopt that conclusion.
2. I also note that in response to referral of the application the Council's Traffic & Parking Unit was generally satisfied with the proposed car lift. It was, however, recommended that minimum dimensions of 6m x 3m be shown on revised drawings; the entrance be located a minimum distance of 10m from Simmons Street; the Oak Place carriageway south of the lift be increased in width; and a splay be included at the entrance to the lift. Those matters are addressed in a proposed Condition 1 requiring amended plans.
3. Mr Walsh did not consider those modifications to be necessary. However, I was advised that the applicant is willing to comply with the Condition 1 items. Plans were tendered showing modifications to the ground floor and basement levels. In particular, I note that widening of Oak Place would provide for two-way access between Simmons Street and the car lift entrance and would act as a waiting area. I also note that the plans continue to show a 3.7m car lift width, which is comparable to the larger 'comfort cabin' in the three options described in a brochure annexed to Mr Walsh's report.

1. The outcome of this review is effectively determined by my findings on the above issues. For the sake of completeness, I will briefly mention some other matters that arose during the hearing.
2. One of the Council's reasons for refusal is 'The proposal represents a poor design outcome with bedroom windows being located on the property boundary.' Mr Wong was unsure about which elevations and levels are of concern in this regard. He suggested that the Council's concern possibly arises regarding the lack of privacy for windows facing Dye Works Park. I do not share that concern. There are a limited number of windows and balconies on the ground level that face the Park. Furthermore, the adjacent section of the Park is not a trafficable area. It is a heavily planted strip at a lower level than the grassed 'amphitheatre'.
3. Mr Wong submitted that 5 of the apartments would have poor amenity, as they would rely on borrowed light for the bedroom. He was also critical of the failure to provide any of the apartments with a northern aspect.
4. I do not consider those matters to be fundamental flaws of the proposal. I accept Mr McGurn's evidence that the proposed dwellings would provide good levels of internal amenity. The lack of northern orientation is a response to the prospect of the land to the north being redeveloped. The sheer wall invites an attached building form. Instead, all dwellings have a west or east orientation. There are appropriate measures to shield the

west-facing windows from the harsh sun. 5. Understandably, the Council has not raised any objection to the overall style of the proposed building. The building is a fine example of contemporary architecture. It comprises two distinct building elements, linked by the central corridors. As noted by Mr Williams, the louvred corridors would allow cross flow ventilation and act as 'the lungs' of the building. That design may obviate the need for the air-conditioning for cooling. 6. The proposal involves 57 on-site car spaces. The allocation suggested by Mr Walsh would provide resident parking at Clause 55 rates and leave 2

on-site spaces available for visitors. There would also be two additional spaces created along the Simmons Street frontage. I accept Mr Walsh's conclusion that the provision of 4 spaces for visitors would exceed expected daytime parking demand (of 3 spaces) and accommodate all but 2 of the peak evening and weekend visitor parking demand. 7. There was discussion at the hearing about whether it would be acceptable to remove the car stackers in the ground level car park and whether there should be any on-site visitor car parking spaces. 8. The removal of the car stackers would reduce the on-site parking provision by 5 spaces to 52 spaces. I agree with Mr Walsh that there are various factors that could justify a reduced parking provision for residents. Census data suggests that many of the occupiers of the one-bedroom apartments will not own a car.[16] The subject site is very close to Chapel Street and has good access to public transport. Sustainable transport is a current policy thrust. Given those factors, I am prepared to accept that the stackers could be removed. 9. The recent Ministerial Advisory Committee regarding car parking rates in the planning scheme recommended that developments of more than 5 dwellings in Activity Centres have no visitor car spaces. However, my site inspection (during the early afternoon, not at a peak period) confirmed Mr Walsh's observation that there are limited available on-street parking spaces in this area. That situation will be exacerbated if the 40 or so car spaces within the northern side of Dye Works Park are eventually removed, as promoted by Chapel Vision. The proposed development will also involve the loss of informal car spaces on the west side of Oak Place. Accordingly, I think it is appropriate that 2 on-site spaces be provided for visitors. 10. As noted earlier, I understand that the revised plans annexed to Mr Walsh's report show various amendments required by the Condition 1 in the Council's 'without prejudice' permit conditions.[17] They include the widening of the Oak Place carriageway to 5.5m. Although they also show a 1.2m-wide footpath along Oak Place (as required by the Council), I accept Mr Walsh's view that a 600mm-wide footpath would be adequate. The footpath would only lead to the car lift and ground level car park. The existing footpath has a width of only 600m. 11. With respect to permit conditions, the parties agreed that there should be lighting at the entrance to the car lift so that it is readily visible. I consider that it would be acceptable for some screens on the western elevation to project approximately 400mm beyond the property boundary.

1. It follows from the above reasons that my conclusion is that the decision of the Council should be set aside and a permit be granted.
2. In deciding the conditions to be included on the permit I have had regard to the draft conditions provided by the Council and the submissions and evidence of the parties, in addition to the matters that arise from these reasons.
3. Although my order does not include the 'Notes' suggested by the Council and Melbourne Water, such advisory information may be included in the permit that the Council is directed to issue.

1. Before the commencement of the development, three (3) copies of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the plans advertised in September 2008 but modified to show:
   • (a) The entrance to the car lift located a minimum distance of 10 metres from Simmons Street.
   • (b) The Oak Place carriageway, south of the car lift, to have a minimum width of 5.5 metres (kerb to kerb), exclusive of an additional 600mm for a footpath on the east side of Oak Place (it is noted that this will require the building to be setback within the property boundary to accommodate this requirement). All such works to be paid for by the applicant.
   • (c) The inclusion of a splay at the entrance to the car lift, having a minimum internal radius of 4m. Such splay to be designed in accordance with the applicable Australian Standards.
   • (d) All of the building, including balconies but excepting the vertical blades on the western elevation, to be within the title boundaries.
   • (e) Changes to the dimensions and layout of parking bays, access, access gradients, sightlines, location of columns generally as shown on plans annexed to the Traffic Engineering Assessment of Mr Jason Walsh - being plans prepared by Williams Boag Architects identified as

tp2.01 & tp2.02, Revision G, or such other amendments to the satisfaction of the Responsible Authority. * (f) The deletion of the car stackers in the ground level car park. * (g) The location of external lighting for the car lift. * (h) Treatment of the ground level wall on the eastern boundary so that it does not present as a blank wall - by the creation of openings, landscaping or some other means. * (i) A schedule of construction materials, colours and finishes. * (j) A Waste Management Plan in accordance with Condition 3.

All to the satisfaction of the Responsible Authority.

1. The use and development must be in accordance with the endorsed plans unless otherwise agreed in writing by the Responsible Authority.
2. Concurrent with the endorsement of plans, a Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan must include:
   • (a) The number of bins to be provided
   • (b) Method of waste and recyclables collection
   • (c) Hours of waste and recyclables collection
   • (d) Method of presentation of bins for waste collection
   • (e) Strategies for how the generation of waste and recyclables from the development will be minimized.

When approved, the plan will be endorsed and will then form part of the permit. Waste collection from the development must be in accordance with the plan, to the satisfaction of the Responsible Authority.

1. Before the construction or carrying out of buildings and works (other than works which are required to obtain the certificate of environmental audit or statement) in association with the use commences, either:
   • (a) A certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970, or
   • (b) An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for the sensitive use.
2. All the conditions of the Statement of Environmental Audit must be complied with to the satisfaction of the responsible authority, prior to commencement of use of the site. Written confirmation of compliance must be provided by a suitably qualified environmental professional or other suitable person acceptable to the responsible authority. In addition, sign off must be in accordance with any requirements in the Statement conditions regarding verification of works.
3. Prior to occupation of the building or commencement of use, any existing vehicular crossing made redundant by the building and works hereby permitted must be broken out and re-instated as standard footpath and kerb and channel at the permit holders cost to the approval and satisfaction of the Responsible Authority.
4. Prior to a building permit being issued a report for the legal point of discharge must be obtained from Council. A drainage design for the development must be prepared by a suitably qualified Engineer in accordance with the above report prior to the commencement of works and the drainage must be completed in accordance with that design.
5. Access to the site must be maintained to the satisfaction of the Responsible Authority.
6. Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.
7. All services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
8. The levels of the footpath and street in Oak Place and Simmons Street must not be lowered or altered in any way to facilitate access to the site, to the satisfaction of the Responsible Authority.
9. The exposed walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.

1. No polluted and / or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
2. The ground floor area for the building (except for the car parking area) must be constructed with finished floor levels a minimum of 300mm above the applicable grading flood level.
3. The entry / exit driveway of the basement car park must incorporate a flood proof apex of a minimum of 300mm above the applicable flood level.
4. All lifts and stairwell, windows, openings, vents and other entry points that may allow for entry of floodwaters to the basement, must be a minimum of 300mm above the applicable flood level.
5. The basement areas must be for vehicle and bicycle parking only.
6. The ground floor car parking area must be constructed with finished surface levels a minimum of 150mm above the applicable flood level.
7. Any drainage system to the building must be designed such that stormwater is unable to penetrate the basement area and sub-floor car stackers.
8. This permit will expire if one of the following circumstances applies:
   • (a) The development is not started within two years of the date of this permit.
   • (b) The development is not completed within four years of the date of this permit.
   • (c) The use is not commenced within five years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

[1] Ms Mary Argyrou lodged a Statement of Grounds with the Tribunal. She was advised that as her name did not appear on the list of objectors provided by the Council, at the commencement of the hearing she would need to make a formal application to be made a party. Ms Argyrou did not appear to make such a request.

[2] The Strategic Framework Plan at Clause 21.01 identifies the site as being at the edge of the Principal Activity Centre. In Chapel Vision it is within the Centre.

[3] Adopted by the Council in December 2007.

[4] For instance, in Asian Pacific Building Corporation Pty Ltd v Stonnington CC [2007] VCAT 1076 and Oxdra Pty Ltd v Stonnington CC [2008] VCAT 1864.

[5] As summarised in the Council officer's report.

[6] SY Ellis Pty Ltd v Stonnington CC [2006] VCAT 1031.

[8] Urban Design Comments by David Morrison, dated 10 November 2008.

[9] Landscape Coordinator Comments by Megan Jones, 10 October 2008.

[10] As recommended by the Council's Landscape Coordinator.

[11] Department of Sustainability and Environment, 2004.

[12] In an order dated 27 October 2009.

[13] A further submission was received from the Council's Planning Appeals Coordinator (Andrew Clarke) on 9 November 2009. A further submission from the applicant's representative was received on 10 November 2009. Neither party took the opportunity to provide a responding submission.

[14] [2006] VCAT 1439.

[15] His firm advises that there should be a maximum of 50-60 car spaces for one car lift.

[16] The 2006 ABS census indicates that residents living in 40% of one-bedroom apartments within the Prahran collector district do not own a car.

[17] Based on the conditions initially recommended in the Council planning officer's report.