1. The proposal has a poor level of internal amenity.
2. My decision is based on the amended plans circulated and submissions made to the Tribunal with particular reference to these issues identified at the hearing.

Does the proposal provide sufficient on-site parking?

1. The existing site provides for room to the rear of the shop for up to two car spaces, although inspection of the site indicates that the land has not been used actively for car parking for some time.
2. Ms Moser submitted Council had calculated the parking requirement under Clause 52.06 as 13 spaces, being 5 for the shop and 8 for the dwellings. This assumes 8 spaces for each 100sqm of retail space and 2 spaces for each dwelling. She indicated Council would accept a provision of 11 spaces based on Council's car parking code for residential development[2].
3. Mr Fairlie's evidence was that the residential component required only 4 spaces based on the requirements of ResCode. I agree this is the generally accepted rate for carparking for residential development, regardless of land zoning. I also agree with Mr Fairlie that some credit can be given to the existing shop use on site that provides 0 - 2 spaces on site, depending upon interpretation of use of the rear yard. Assuming the rear yard could be readily used, a credit of four spaces to the shop could be provided[3].
4. The proposal provides for one on-site car space to the shop and one to each dwelling. The spaces will be in the form of a proposed garage with car stacker to the rear of the site, accessed via a rear laneway. The critical question is whether the proposed provision of car parking meets the decision guidelines of Clause 52.06 of the planning scheme for the waiver of parking. These decision guidelines include:

1. Any car parking deficiency or surplus associated with the existing use of the land, and any subsequent credit from existing use on land. 2. Availability of car parking in the locality

1. Availability of public transport
2. The existing shop on site clearly does not provide the full requirement for on site parking, even assuming 2 spaces can be used to the rear of the site. Regardless of whether the room can be used, it is poorly maintained and accessed via a locked gate that needs to be opened by hand.
3. To the front of the site are 13 car spaces in Morton Street with 7 of these spaces restricted to ½ hour parking and 6 restricted to 2 hour parking[4]. From parking survey undertaken by Ratio Consultants and my own observations from site inspection I find the existing provision of on street parking for visitors to the shop and residences to be more than adequate. Ms Moser tabled a previous decision of the Tribunal in relation to 49 Morton Street in 2007[5]. In this decision, Member Mainwaring also made the observation that she found the area had no shortage of on street parking.
4. I find the provision of one on site space for the shop, which is reduced in size from the existing shop on site to be sufficient for the retail use. This provides for parking for one employee or owner of the site with visitor parking then provided on street in Morton Street. Ms Moser questioned if the proposed on site space would be sufficiently large to accommodate a van. There is no specific requirement in the planning scheme for a space for an employee to be larger to accommodate a delivery van. I agree with the evidence of Mr Fairlie that a tenant or owner of the shop would take the size of the space available into consideration when purchasing or tenanting the shop. I find no specific need to accommodate a larger than normal parking space for the shop.
5. I also find the provision of one space per dwelling on site to be sufficient. This is consistent with the requirements of ResCode and generally accepted as the standard for residential development.
6. The five on-site car spaces are proposed to be accommodated on site via a car stacker. This stacker is a pit stacker with 'Standard P310 - 175' Klaus Parking Automat stacker with a floor to ceiling height of 3.45m. The stacker can accommodate cars to a height of 1.5m on the bottom platform and 1.7m on the top platform. Ms Moser expressed concern that "the provision of a car stacker arrangement in a small local shopping area such as this would be most unusual and its convenience is questioned".
7. Whether the use of a stacker is an unusual occurrence in Monash is irrelevant to my consideration. To understand the issues associated with delay (and therefore convenience) in accessing a car space and noise associated with movement of vehicles in the stacker I indicated at the hearing that I would seek to view another site where a similar stacker was installed.
8. I inspected a similar model stacker in Elwood[6] on 27 February, 2009. This stacker was somewhat larger and located in a basement, so direct comparison is not possible. However, I was able to observe the likely noise and delays associated in moving cars.
9. Whilst there is some delay in retrieving a car from the stacker, the security benefits to a user I consider would encourage a resident to use the space than leave a car on the street. Some short term parking may still occur on street, however, I consider a similar scenario would occur if only a rear gate to an open yard to the rear of the site formed parking. In either instance there will be a choice residents make to "lock up" their car on site, or park for a short period of time on street with reduced security.
10. Ms Moser questioned the safety of pedestrians entering and leaving the stacker, having to leave the stacker into the rear laneway and then entering the pedestrian entry of the rear of the site. She questioned the safety and therefore usability of this arrangement at night. During the hearing, the applicant tabled a sketch of an alternative arrangement that would enable pedestrian access to the stacker via an internal walkway. I have attached a copy of this in Appendix B. I find this would significantly improve the pedestrian safety and therefore likely use of the stacker by residents at night. I will therefore condition that plans be amended to include internal pedestrian entry to the stacker in a form similar to the sketch detailed in Appendix B. This alteration will require minor internal re-configuration and may result in a reduced retail floor space. The reconfiguration can still enable appropriate storage and provision of rubbish bins.
11. I did express concern at the hearing that there is a need to ensure noise from operation of the stacker does not significantly impede the amenity of the dwelling proposed to be located directly above the stacker garage. From my inspection of the stacker in Elwood it is apparent the opening of the grill to the stacker creates little noise. It was my observation that the significant noise is associated with horizontal shifting of cars due to a hydraulic pump that moves the cars. Provided there is appropriate acoustic attenuation of the floor to the dwelling above the stacker and insulation of the pump, the noise associated with the stacker should not be significantly worse than that of a normal garage. I will therefore condition that an acoustic report be provided to address noise attenuation between the residential uses at first floor and the ground floor commercial and car stacker use.
12. Ms Moser also questioned the provision of bicycle parking in the development. Mr Fairlie advised bicycle hooks could be provided on the wall in the storage area. With the amended sketch tabled by the applicant, as detailed in Appendix B, bicycle parking would need to be located in with bin storage. I find this to be adequate provided condition is placed on permit for wall mounted hooks to be installed in this area for bicycle storage.

Does the proposal need on site provision for loading?

1. I agree with the evidence of Mr Fairlie that there is no need for on site provision of loading for the shop premises. The premises is small and currently has no on site loading facility. The centre includes short term parking directly in front of the shop. From the assessment of parking there seems sufficient on street parking to support the occasional use of parking spaces for loading vehicles.

1. Ms Moser stated a building of three storeys is out of keeping with the built form and scale of the centre. She acknowledged that the officer report for the proposal accepted three storey development provided the upper level was setback from the façade to visually break up the building and achieve a graded change between the existing and new development.
2. Mr Czarny's evidence was that three storey development to the front façade was appropriate to the site. He stated he found no need to recess the upper level in this instance as the development did not directly abut residential form and the shops were already recessed from the main building line of the street due to the indented parking located in front of the site.
3. I agree the development is not so high that I find it will dominate or overwhelm the streetscape. It will be higher than its neighbours, however, over time these properties may also develop with higher development. I agree with Mr Czarny that had this site been directly abutting the residential dwelling to the west, greater consideration would need to be given to stepping down development to the residential form. The proposal however does not directly abut a single storey dwelling.
4. The side boundaries of the property include articulation, with a light well on the western boundary providing visual interest to this façade. On the east, variation in panel texture and colour can also be achieved. The application includes use of windows to the boundaries. I discuss further below in paragraph 29 that I am not comfortable in supporting windows on boundaries. Whilst they add visual interest to the east and west facades the I find the potential complications of placing windows on boundaries unnecessary for the limited benefits in visual interest they create to the facades.
5. In the hearing I questioned with Mr Czarny the need for 1.7m high screening to the balconies proposed to the front and rear of the site. He advised he considered the screen to the south west facing dwellings to Morton Street unnecessary as the south facing dwellings only overlooked a front yard to 39 Morton Street, across the roof of the shop at 41 Morton Street. From my inspection I agree the overlooking to 39 Morton Street is only to a front yard and should not result in undue loss of amenity to this property from the screen. However, given the plans have been advertised with the screen I am reluctant to now delete the screen as a condition when such a change may be considered to cause material detriment to the owner of this property. Likewise, if 41 Morton Street develops in the future with two or three storey development the screen may be necessary to divide any adjoining balcony. I therefore will retain the provision of a screen to the west on both the north and south ends of development as detailed in the plans before the Tribunal.

Does the proposal provide sufficient internal amenity?

1. Ms Moser questioned the quality of the internal amenity to the dwellings, particularly provision of light into the kitchen, bathroom and entry areas.
2. At the hearing Mr Bardini accepted the window on the side boundary to the kitchen areas would be better located to face toward the light court to provide unimpeded light into the kitchen from any potential future development to the west. This also enables such a window to be openable, enabling better cross ventilation through each dwelling. I acknowledge the bathroom has no natural source of light, however, this is relatively minor as the bathroom is not a main living room. At the upper level there is opportunity to include skylights into the bathrooms.
3. At the hearing I noted the roof plan does not include details of skylights that are indicated in the hallways of dwellings on the third floor and the communal stairwell. Mr Bardini indicated this was an error on plan. I will condition that details of skylights be detailed on the roof plan.
4. I stated at the hearing that I did share concern of Ms Moser that proposed windows along the side boundaries, whilst adding visual interest to the development may cause legal problems between neighbours in the future if adjoining properties develop 2 or 3 storey development. Mr Bardini submitted the windows could be fire rated so that if they were enclosed by adjoining development at a later date there was no need to alter the window fixture. The windows are not essential to providing natural light into the dwellings and I consider the limited benefits of providing visual interest to the east and west façade are not sufficient to require the windows to be retained. I will therefore condition that plans be amended to delete these windows.
5. Finally, Ms Moser expressed concern that the entry to the dwelling and shop was too recessed in context to the street. The pedestrian entry in the plans to the Tribunal provides for both the shop and dwelling entry to be recessed 2.1 metres for a width of 2.8m, which is approximately 40% of the property frontage. I agree this has potential to reduce the active frontage to the street. Mr Czany also agreed on questioning that it may be more appropriate to require the shop to have door at street level. I will condition that the dwelling entry be recessed by no more than 1.5m, with the shop entry then relocated to be flush with the street frontage.

1. I find the fatal flaw as stated by Council, being a lack of on-site parking not to be justified in this application. Whilst the installation of a car stacker may be new to the area, this does not make it wrong. Sufficient amenity can be maintained to the site through appropriate condition to ensure the stacker does not unduly impact the amenity of the dwellings to be located above the stacker.
2. I also see no need to set back the upper level of the development to the street given the recessed nature of the existing shop fronts to the remainder of the residential street.
3. It therefore follows that I will allow the review and issue a permit subject to conditions detailed in Appendix A.

1. Before the use and/or development start(s), amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans substituted by the tribunal and presented at the tribunal hearing but modified to show:
   • (a) Alteration of the ground floor façade to relocate the shop entry to be flush to the Morton Street property façade and the dwelling entry to be located no more than 1.5m in from this property façade.
   • (b) Alteration of the ground floor internal room arrangement to enable internal pedestrian entry to the car stacker from the pedestrian passage along the eastern boundary.
   • (c) Deletion of all window openings on walls abutting the east and west boundaries
   • (d) Provision of a new, openable window to each kitchen facing into the light well in a north / south alignment.
   • (e) Details of all skylights and other mechanical equipment to be located on the roof plan.
   • (f) Provision for sensor triggered lighting at the rear pedestrian entry to the site from the laneway. This lighting should be baffled to minimise any light spill into upper level residences.
   • (g) Conversion of the kitchen island bench in each dwelling with sink to a larger bench.
   • (h) Provision of at least four wall mounted hooks for bicycles within the bin storage or general storage areas.
   • (i) The incorporation of acoustic protection measures to dwelling 1.1 and 1.2 from ground floor commercial use and car stacker, including acoustic attenuation of all building services and plant equipment in accordance with Condition 2.
   • (j) The location of all external plant and equipment including, but not limited to service units for heating cooling and hot water, solar panels, services shafts, ventilation systems, waste chute, television antennae and communication devices, service meters, clotheslines, car park mechanical exhaust and ventilation.
   • (k) a coloured schedule of external materials and finishes
   • (l) a notation that the right-of-way is to be constructed behind 43 Morton Street up to 49 Morton Street
2. Before the development starts a qualified acoustics expert must prepare an acoustic report and a copy must be provided to the Responsible Authority, that details the noise attenuation measures required to all habitable rooms within dwellings 1.1 and 1.2 to ensure minimal impacts from noise sources external to those dwellings. The recommendations of the acoustic report must be approved by Council in writing and once approved implemented to the satisfaction of the Responsible Authority prior to the completion of the development.
3. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
4. All on-site stormwater is to be collected from hard surface areas and must not be allowed to flow uncontrolled into adjoining properties.
5. Before the development starts, a site layout plan drawn to scale and dimensioned must submitted to the Responsible Authority for our records.

The plans must show a drainage scheme providing for the collection of stormwater to the nominated point of discharge.

The nominated point of discharge is the south-east corner of the property where the entire site's stormwater drainage must be collected and free drained via the existing property connection to the 450mm Council drain in the road reserve to Council Standards.

If the point of discharge cannot be located then the City of Monash Engineering Division must be notified immediately.

1. Stormwater discharge is to be detained on-site to the predevelopment level of peak stormwater discharge. Approval of any detention system is required from Council prior to works commencing.

A drainage contribution may be accepted in lieu of a detention system. 2. The owner is to construct the right-of-way at the rear of number 43 Morton Street up to number 49 Morton Street to the satisfaction of Council. 3. Prior to the commencement of works on the site, a Construction Management Plan must be submitted and approved by the Responsible Authority. Construction must be carried out in accordance with the plan to the satisfaction of the Responsible Authority. The plan must detail, but not be limited to, the following: * (a) site contamination and disposal of contaminated matter; * (b) containment of dust, dirt and mud within the site and method and frequency of clean up procedures in the event of build up of matter outside the site; * (c) delivery and unloading points and expected frequency; * (d) car parking of construction worker vehicles; * (e) a liaison officer for contact by residents and the Responsible Authority in the event of relevant queries or problems experienced; * (f) an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services; * (g) a waste minimisation and recycling strategy; * (h) any requirements outlined within this permit as required by the relevant referral authorities. 4. Prior to the commencement of works on the site, a Waste Management Plan must be submitted and approved by the Responsible Authority. The Waste Management Plan shall provide for: * (a) the method of collection of garbage and recyclables for all uses on the land; * (b) designation of methods of collection including the need to provide for private services or utilisation of Council services; * (c) appropriate areas of bin storage on site and areas for bin storage on collection days; * (d) measures to minimise the impact upon local amenity and on the operation, management and maintenance of car parking areas; * (e) litter management. 5. No equipment, services, architectural features or structures of any kind, including telecommunication facilities, other than those shown on the endorsed plans shall be permitted above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority. 6. No air-conditioning units are to be placed individually on dwellings or within the balconies unless otherwise agreed to in writing by the Responsible Authority. 7. Before occupation of the development a centralised television antenna system must be installed and connections made to each apartment to the satisfaction of the Responsible Authority. 8. Before occupation all buildings and works specified in this permit, including the stormwater drainage works, must be completed to the satisfaction of the Responsible Authority. The Responsible Authority must be advised in writing when all construction and works are completed to enable the site to be inspected. 9. This permit will expire if one of the following circumstances applies: 1. The development and is not started within two years of the date of this permit. 2. The development is not completed within four 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] There was dispute between parties as to whether the land to the rear of the shop constituted room for on site car parking, although it was clearly currently unused at the time of my inspection.

[2] The parking rate is based on the Monash preferred standard of 1.5 space per 2 bedroom dwelling. Clause 52.06 requires 2 spaces for each 2 bedroom dwelling. ResCode requires 1 space per 2 bedroom dwelling.

[3] 71 sqm of shop at 8 spaces per 100sqm would give a credit of 6 spaces. Assume 2 on site, provides a waiver of 4 spaces from currently required.

[4] Based on evidence of Mr Fairlie and my site inspection.

[5] Klanklon v Monash CC [2007] VCAT 1106 (25 June 2007)

[6] Development of basement car park with similar stacker in basement at 95 - 103 Ormond Road, Elwood. This stacker provided three vehicles in height, but was wider with 2 stacker sets of 6 car width.