In permit application no. 878/05, a permit must be granted for the land at No. 1-5 Donald Street, Prahran. The permit will allow the use and development of the land for a residential building (student accommodation comprising no more than 43 student accommodation units and a maximum of 43 students) in accordance with the endorsed plans and subject to the following conditions:

1 Before the use and/or development starts, 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 (3) copies must be provided. The plans must be generally in accordance with the plans received by the Responsible Authority on 29 September 2005 but modified to show:

(a)

Changes shown on the plans marked as Revision B, dated 2/5/06 comprising modified window positions, relocated bins, external clothes drying facilities, bicycle storage and modifications to the balconies unless alternative locations for bins, bicycle parking and external clothes drying are approved by the Responsible Authority. The elevations are to be corrected to be consistent with the changes shown on these floor plans.

(b)

The deletion of either Room 09 or 10 on the ground level to provide an internal accessway/passage to the communal open space. Additional floor area may be added to Room 11.

(c)

Modifications to windows in ground level rooms as follows:

(i)

Convert the west-facing window in Room 4 to a highlight window;

(ii)

Screen the north-facing windows in Room 09 or 10 (whichever is retained as a result of Condition 1(b)) to minimise overlooking from the communal open spaces and car park.

(d)

Obscure glazing to be retained in existing south-facing and west-facing windows in the building at the first floor level. These windows must be modified so that the lower panes are fixed shut and the top window panes are openable.

(e)

Screening to the west-facing windows in Room 12 at the first floor level and Rooms 01 and 02 at the second floor level. Screening also to the northern edge of the north-facing balconies. Details of screening devices must be supplied.

(f)

Notations that the northern ground level exit door and northern external stairs shall only be used for fire escape purposes.

(g)

The car space located close to the north-west corner of the land to be a minimum of 2.7 metres wide or the adjoining landscaping kerb is to be no higher than 150mm above the level of the parking spaces.

(h)

Clearly visible signage on the existing northern fire escape stairs specifying the clearance height to the underside of the stairway.

(i)

The location of all plant and equipment including air conditioning units.

(j)

Details of bicycle parking spaces to confirm that they comply with the applicable Australian Standard.

(k)

Identification of kitchenette facilities in each room providing a sink, cooking facilities, cupboard(s) and a fridge.

(l)

Correction to the description of the property at No. 4 Donald Street to refer to brick.

(m)

A Management Plan in accordance with Condition 11.

(n)

A Waste Management Plan in accordance with Condition 12.

2 The use and/or development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3 Prior to the commencement of the use and/or development, or at such later date as the Responsible Authority may approve in writing, a landscape plan indicating the area or areas set aside for landscaping and a schedule of all proposed trees, shrubs and ground cover (including the location and size at maturity of all plants) shall be submitted to and approved by the Responsible Authority. An endorsed copy of the landscape plan shall form part of this permit.

4 Before the use allowed by this permit starts, landscaping works as shown on the endorsed plans must be completed prior to the commencement of the use and then maintained to the satisfaction of the Responsible Authority.

5 The site shall be drained to the satisfaction of the Responsible Authority.

6 Prior to the commencement of the use and/or development, the permit holder must enter into and execute an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987 to the satisfaction of the Responsible Authority and such agreement shall require that, without the prior written consent of the Responsible Authority:

(a)

The development shall be for the exclusive use of students enrolled full time at a tertiary institution and is to be vacated by any relevant student within three months of that student's completion of full time studies.

(b)

All rooms shall be managed by a single management entity and shall not be leased or otherwise managed other than under the control of that management entity.

7 The cost of the preparation or review of the agreement pursuant to Section 173 of the Planning and Environment Act 1987 and the cost of registering the agreement under Section 181 of the Planning and Environment Act 1987 must be borne by the permit holder.

8 The requirements contained within the agreement referred to in Condition 6 shall form part of any lease of the premises which the owner of the land under this permit may enter into with another party.

9 At all times there shall be a manager or other responsible person on the site who shall be responsible for the control and supervision of the accommodation and behaviour of students within the building and on the land.

10 The on-site manager's (or equivalent's) telephone contact number(s) must be provided on request to any resident of the area. This number must be contactable 24 hours per day that the building is used for the approved use.

11 Before the use allowed by this permit starts, a Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of this permit. The plan must include (but is not limited to):

(a)

Advice to prospective students that no on-site car parking is available once the eight on-site car spaces have been allocated or leased.

(b)

Supervision of students within the development including measures to limit noisy and anti-social behaviour and address any issues arising;

(c)

Maintenance of the building and surrounds;

(d)

Security of the building and surrounds;

(e)

Limiting use of fire escape stairs for that purpose alone;

(f)

Management of communal spaces including areas to be set aside for smoking;

(g)

Limiting the use of the communal open space area to no later than 10pm on any day;

(h)

Signage to be displayed on the building to provide 24 hour telephone contact numbers;

(i)

The storage of garbage and recyclables and waste collection.

The use must operate and be managed in accordance with the conditions and provisions of the approved Management Plan to the satisfaction of the Responsible Authority. The plan must be implemented to the satisfaction of the Responsible Authority. The plan may be amended from time to time to the satisfaction of the Responsible Authority.

12 Before the use and/or development starts, a Waste Management Plan for the student accommodation use to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Plan will be endorsed and then form part of the permit. Waste collections must be in accordance with the approved Plan to the satisfaction of the Responsible Authority.

13 Disabled access to the building must be provided to the satisfaction of the Responsible Authority. All work carried out to provide disabled access must be constructed in accordance with Australian Standards Design for Access and Mobility: AS 1428.1-1998, AS1428-2 1992, AS1428-3 1992 and AS1428-4 1992 and the Disability Discrimination Act 1992.

14 Air extraction fans, air conditioning and all other plant and equipment installed on the building shall be baffled in accordance with the requirements of the Environment Protection Authority. Ventilation systems shall be designed and installed in accordance with the relevant Australian Standards to the satisfaction of the Responsible Authority.

15 Any external lighting shall be designed, baffled and located to suitably manage any adverse effects on adjoining land to the satisfaction of the Responsible Authority.

16 Before the use and/or development starts, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:

(a)

constructed to the satisfaction of the Responsible Authority;

(b)

surfaced with an all-weather seal coat, to the satisfaction of the Responsible Authority;

(c)

drained and maintained to the satisfaction of the Responsible Authority;

(d)

line-marked to indicate each car space and all access lanes, to the satisfaction of the Responsible Authority.

Parking areas and access lanes must be kept available for these purposes at all times.

17 This permit will expire if one of the following applies:

(a)

the development and use is/are 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.

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.

The Responsible Authority is directed to issue a permit in accordance with this order pursuant to the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mr D Scally of Best Hooper solicitors. Evidence was called from:

•

Mr R Kelderman, town planner.

•

Mr G Wilson, Director of Student Housing Australia Pty Ltd.

•

Mr J Walsh, traffic engineer.

•

Mr M Jeffreson, project architect.

A report by Ms C Frank-Mas, landscape architect was tendered. No party sought to cross-examine her.

Mr C Ermert on his own behalf and for Mr R McCracken.[1]

Ms S Kelsall on behalf of Mr B McCormick & Ms J Thompson and Mr W Kelsall.

Mr P Burke on his own behalf and on behalf of Mrs S Burke.

Ms E Searls, Ms E A Groeneveld, Mr A Chanen, Ms L Henry, Ms A Sedgley all in person.

1 This is an Application under Section 77 of the Planning and Environment Act 1987 brought by Glenferrie Developments Pty Ltd seeking review of a decision by the Stonnington City Council ("the Council") to refuse to grant a permit in permit application no. 878/05. The proposal involves the use and development of the review site for a residential building comprising 44 student accommodation rooms including a reduction in car parking.

2 The subject site is located on the west side of Donald Street. It has a frontage of 28.2 metres and a site area of approximately 1,042.6 square metres. The subject site is developed with a part two storey and part three storey L-shaped building. A marker on the building's façade indicates that it was erected in 1938 for the Villa Maria Society. I was advised that the Society operated a residential facility for visually and possibly hearing impaired persons including elderly persons. The site was sold several years ago and is now occupied by the Lighthouse Foundation. On my inspection, the building was unoccupied except for a small office area on the uppermost floor. An informal open car park is to the northern and western portion of the site. It is accessed via a 2.7 metre wide driveway to the north of the building. That access has high metal gates. Landscaping is mainly limited to trees within the front setback behind a low brick fence.

3 The property to the north of the review site, at No. 7 Donald Street, is a single storey double fronted Victorian dwelling. It has three habitable room windows facing toward the review site including a bedroom and two kitchen windows. It has a rear private garden with some planting and a rear carport. That carport has access via a rear lane. The review site also has a narrow abuttal to that lane but it appears to be un-used.

4 The review site's other direct abuttals include Nos. 17 - 23 High Street. These are four residential lots each with rear private courtyards. The two properties that I inspected have open glazing to the rear (north) of the dwelling and No. 23 includes a deck that is elevated above the remainder of the attractive rear garden. No. 23 is a corner lot. No. 19 High Street has a carefully tended garden with a very large olive tree, a large lemon tree and other plantings. The existing structure on the review site is obvious from this row of dwellings. The review site also shares an abuttal along its western boundary with Nos. 2-4 and 6-8 Alfred Street. The former is a block of two storey brick units while the later are single storey dwellings with rear private open space.

5 To the east of the subject site, on the east side of Donald Street, are a three storey centre for the visually impaired persons at No. 2 Donald Street and then a row of single and one double storey dwelling at Nos. 4-10 Donald Street. The north-east corner of High Street and Donald Street is occupied by the St Francis Xavier Church.

6 High Street is a main road with tram services while Donald Street is a local residential street with parking restrictions. Those restrictions apply on weekdays and include no parking on one side of the street to allow for garbage collection one day per week between 9am and 10am.

7 It is proposed to use and develop the subject land for the purpose of student accommodation in the form of 44 single bedrooms. I was advised that each room would have an en-suite with kitchenette (hot plate, microwave, sink and small fridge). Eight line-marked on-site car spaces are proposed.

8 The major works comprise an addition to the second level of the building. That would extend along the southern wing of the building and be linked with the existing two level structure on the northern portion of the building. That addition would comprise eight rooms with a communal lounge area contained within a roof form. This addition would rely on skylight windows for the communal area and new north-facing windows for the added bedrooms. The works involve a maximum increase in the height of part of the existing building by 2.6 metres and an increase in the height of the ridgeline by 1.81 metres (to a maximum of 11.04 metres). The front façade would comprise two dorma window elements.

9 Some rooms would be provided with balconies at the first floor and second floor levels, these being partly in the area of an existing deck but with additional balconies included. Other rooms would rely on an area of communal open space (with BBQ) to the south of an existing set of fire escape stairs[2] and to the east of car spaces #6 - 8.

10 I was advised by Mr Scally that it is not intended to change frosted windows within the building but that frosted glazing is not identified on the plans. Those glazed windows do not seem to be fixed at present. Other screening measures are shown to some windows and balconies.

11 A landscape plan was submitted through Ms Frank-Mas' evidence.

12 The works include changes to the internal fabric of the existing building as well as window and door openings. These are shown on the plans. Other than the proposed addition as I have referred to, changes include modified openings in the northern façade in the rear wing and western stairs.

13 The subject site is located in a Residential 1 Zone pursuant to the provisions of the Stonnington Planning Scheme ("the Scheme"). A permit is required to use and develop the land for the purpose of a residential building. Decision guidelines are set out in the Clause and Clause 55 applies.

14 The review site is affected by two Overlays:

•

A Heritage Overlay (Schedule 126) wherein a permit is required for demolition and buildings and works including the proposed alterations and additions to the existing building. Decision guidelines set out at Clause 43.01 have been taken into account by the Tribunal. The existing building is graded C in the local conservation study.

•

A Design and Development Overlay (Schedule 2) relating to the protection of the Shrine Vista. No permit is required for the works proposed under the provisions of this Overlay.

15 Car parking requirements for a residential building are set out at Clause 52.06 wherein 44 car spaces are required to service 44 lodging rooms. The proposal seeks a reduction in parking to eight spaces. The decision guidelines at Clause 52.06 must be considered in assessing a reduction.

16 The provisions of Clause 63.02 were relied upon by the Applicant to some extent and I discuss them again later in these reasons.

17 The State and Local Planning Policy Frameworks are relevant to the assessment of this Application, including Clauses 15, 16, 18, 19, 21 (Municipal Strategic Statement) and 22.02 (Urban Design Policy), Clause 22.04 (Heritage Policy), 22.06 (Residential Character, Amenity and Interface Policy), 22.12 (Traffic Policy) and 22.13 (Parking Policy). The general decision guidelines at Clause 65 must also be considered.

18 I have considered the submissions presented having regard to the policies, objectives and decision guidelines of the Scheme. That has been assisted by my inspection of the existing building on the subject site, the properties at Nos. 7 Donald Street and 19 & 23 High Street, and the wider area on the morning of the second day of the Hearing. I also inspected the area at 9.30pm on Wednesday 3 May 2006 to review on-site car parking, this being an evening prior to Thursday morning parking restrictions that were said by some parties to add stress to on-street parking supply. In setting out my reasons for directing that a permit issue, I do not recite all of the material presented as the written submissions and statements of evidence tendered by the parties are retained on file, although I do refer to some key points.

19 Based on the issues identified by the parties, the questions for the Tribunal's determination are:

•

is the site an appropriate location for a student accommodation facility having regard to the nature and intensity of the use?

•

does the proposal represent an acceptable response to the streetscape and character of the area?

•

would the proposal have unreasonable impacts on residential amenity?

•

is an acceptable level of internal amenity achieved for occupants of the proposed development?

•

does the proposal provide sufficient on-site parking and would it unreasonably impact on-street parking supply and traffic movement?

20 A significant component of the cases presented by the Council and Respondent Objectors is based on their submission that student accommodation is not a suitable use for the subject land. Referring to various policies in the Scheme, such as Clause 21.08 and 22.06, it was submitted that the proposal would not be consistent with policies that seek to protect residential character and amenity. Mr Bowden submitted that there are more appropriate areas for student accommodation noting (but not relying upon) a draft Student Accommodation Policy adopted by the Council that would channel student housing into an area 400 metres within Swinburne's Prahran campus. Local residents expressing concern about the density and intensity of the proposed development relied on the same policies identified by the Council. They also strongly felt that the proposal would be at odds with the character and amenity created by the existing social structure and composition of residents that comprises young families, older persons and owner-occupiers. The following extracts from two submissions summarise sentiments expressed on these points:

There is clearly more to character and amenity than brick and mortar. The south end of Donald Street is characterised by a quiet, community oriented group of residents with a high population of young children. The introduction of 44 students with no connection to the community or to one another and with limited pastoral support or communal space will have a detrimental impact upon the neighbourhood character.[3]

The proposed development does not consider the existing or preferred neighbourhood character that is quiet and family oriented. Smaller numbers of residents houses in 1-5 Donald Street would maintain this character, the proposed 44 official residents would change the neighbourhood permanently.....

We have chosen to have children in Donald St due to the family profile that Donald street possesses, this influx of out of character residents will significantly alter this.[4]

21 Some local residents also relied on newspaper reports of a declining demand by international students seeking to study in Australia and concerns that the facility might fail and be converted to another inappropriate use such as a rooming house or backpacker's lodge.

22 These submissions were challenged by the Applicant through the evidence of Mr Wilson and Mr Kelderman that I do not recite.

23 The submissions raise a number of points that I address in turn.

24 First I refer to submissions questioning the need for the proposed facility. Mr Wilson did not accept the proposition that the need for student housing is declining. I also note that newspaper reports expressing a contrary position to the articles cited by Mr Chanen about the demand by overseas students to study in Australia can readily found.[5] I find no need to investigate the need for the proposed facility suffice to say that even it was conclusive that fewer students may opt to study in Melbourne in the future, it cannot be assumed that student housing needs are adequately met by the options currently available to them. From the perspective of the provisions of the Scheme, it is convenient to repeat the findings I have made in other cases where the need for student accommodation has been challenged or it has been argued that there are too many like-facilities in an area[6]:

A purpose of the Residential 1 Zone is to provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households. Student housing is a valid component of this and the permit itself and associated conditions ensure that approval is confined to that use. As I said in Melbourne International Student Accommodation v Boroondara CC [2004] VCAT 800 at paragraph 34:

That other facilities may be developed is not a factor that causes me to reject this Application. There are a number of cases where the Tribunal has considered need, decisions with which I agree (for example Shell Company of Australia Pty Ltd and Ors v City of Frankston and Anor 8 APAD 127 at 135). The main point is that demonstrated need for a facility or use may be a relevant factor but "lack of a need will rarely, if ever, be a ground for refusing to grant a permit" as stated in Shell. It is not necessary to await the development of other approved facilities before the current proposal should be considered or allowed to proceed.

25 I find no reason to depart from these conclusions in the circumstances of the current proceeding.

26 Second is the physical location of the review site and whether a student housing proposal accords with the directions contained within the policies set out in the Scheme. There is no doubt that the provisions of Clause 21.08, 22.06 and other policies focus on the protection of residential character and amenity. I discuss the physical aspects of those provisions later in these reasons and the social/demographic issues shortly. These amenity and character considerations are, however, only several of the multiple policies that are the basis for assessing this permit application. It is also evident that the Council has recognised and sought to respond to the challenge of address the housing needs of the population. [7] The Municipal Strategic Statement adopts a vision that emphasises harmonious and cosmopolitan lifestyles. Provision of housing choice is part of that, as is (inter alia) recycling of older buildings. Encouraging "suitable student accommodation close to large institutions such as Swinburne" is a specific policy direction.[8] The phrase "close to large institutions" is not defined however, at a distance of around 450 metres, I think that the review site can be said to be reasonably proximate to the Prahran campus of Swinburne.

27 On this latter point, I was referred to a draft Student Housing Policy adopted by the Council. It is not at a stage that can be influential weight in these proceedings. Nonetheless, I note that it adopts a figure of 400 metres from the Prahran campus of Swinburne as a "secondary area" [9] into which student housing should be channelled. Such sites are expected to be in business or mixed use zones and beside specified arterial roads. It is self-evident that the review site would not meet these criteria should they be given weight. However, it must also be accepted that the subject land comprises a locally significant heritage building that desirably should be recycled rather than being proposed for demolition. The building is adaptable for a student housing use in the model proposed in this application. In my view, the reuse of the building is a significant factor in support of the proposal and I accept the point made by the Applicant that options to recycle the building are limited. The proposed use seems to be more intense than the most recent experience of residential occupation of the subject building and higher density housing is sought by local policy to be located on nominated main roads. However that does not mean that a lower intensity of use must automatically be dictated if, on a proper and informed assessment, an intensive residential use is found to meet other tests relating to car parking, traffic and potential off-site amenity impacts such as noise and overlooking.

28 Third is the question of the existing social fabric of the immediate environs of the review site and how the proposed use would relate or impact on the community.

29 The Donald Street community appears to be dedicated to its neighbourhood and each other, articulate and community-spirited. Residents who presented submissions regard their community to be rare and something to be protected from a new profile of residents and particularly a facility with 44 resident students. It is interesting to view this argument when reading the provisions of Clause 21.08 and 22.06. The basis of the policies is the relationship of a proposal to the physical environment and impacts such as traffic, parking and noise particularly at night. None of the objectives at Clause 22.06 make explicit the issue of the social character of a residential neighbourhood when considering a new residential use. Even the draft student housing policy I have referred to does not mention this element.

30 Despite this, I do not think that the social and demographic matters raised by the community should be excluded from consideration outright, insofar as the features they value can be said to be part of the feel of the area. However, it must be recognised that these matters are not given significant weight in any of the local policies. Social effects can be a relevant factor pursuant to the provisions of Section 60(1A)(a) of the Planning and Environment Act 1987 and the Tribunal can take into account other relevant matters as set out at Section 60. However, based on the information before me I find no reason to reject the proposal simply because the facility would bring with it a "different type" of resident, being students who would rent units and may be relatively short term members of this community (although some may well stay for some years as they progress through their studies). Other divisions of the Tribunal have been critical of submissions based on the notion of excluding specific housing groups such as tenants[10]. While I understand that the Respondent Objectors derive great support from within their community, that is not reason to prevent others residing in the area as a matter of principle. There are means by which incoming students and existing residents could interact but it will be an individual choice as to whether that occurs. Thus, I am not persuaded to reject the proposal because it will modify the social fabric of the area.

31 Fourth are concerns by Respondent Objectors that the use may change to another purpose. The use applied for in the permit application is for student accommodation and a range of permit conditions are possible to ensure that the use of the review site is confined to that purpose as I discuss later. It would not be appropriate to deny a permit for a use and development that is otherwise found to be acceptable on grounds that it might, unlawfully, change to another use.

32 I have referred above to submissions relating to the use of the land in social terms from a neighbourhood character perspective.

33 Few submissions were presented in relation to the form of the proposed third level addition and the modifications to the existing building. This was not a point argued by the Council, Mr Bowden stating that the Council considered the proposed works to be acceptable from neighbourhood character assessment. The only issue arising during the Hearing was when Ms Sedgley commented on the detailing of the proposed addition in terms of the dorma windows to the front elevation.

34 The proposed works retain and enable the existing heritage building to be re-used for a residential purpose in accordance with the purpose of the Residential 1 Zone. The modifications to the building have been found to be acceptable by the Council and I am also persuaded that the changes to the existing fabric are acceptable. Moreover, the addition to the second level would be an acceptable extension to the building both in heritage terms and in relation to the streetscape. I do not consider that it represents an overdevelopment. The addition would result in a more prominent third level but taking into account other higher elements at this end of the street, and the attic nature of the southern elevation, I consider the outcome to represent a reasonable fit and to be acceptable with respect to the purposes of the Heritage Overlay. The dorma window elements are acceptable as is the manner in which the proposed addition integrates with the host building.

35 A number of issues were raised by the parties in relation to the internal amenity of the proposed development. These focussed on an absence of amenities within rooms, an overall lack of communal facilities and detailed matters such as the position of windows relative to public spaces. Some other matters were raised during the course of the Hearing and led to Mr Kelderman being invited by the Tribunal to tender a plan with some changes he recommended. These plans are marked as Revision B, dated 2/5/06, and are retained on the Tribunal file.

36 The main internal amenity issue is the extent to which communal spaces, such as kitchens, lounges and open spaces, are provided for the proposed occupants. This was a matter that led the Council officer assessing the proposal to recommend a reduction in the number of units to enable communal spaces to be provided on each floor. As proposed, there is an external communal outdoor area with a BBQ and a third level lounge.

37 The proposal has been formulated on the basis of advice from Mr Wilson and it was his evidence that additional communal spaces would not be used. He stated that students can inter-relate without them and that they are not used because of factors such as religious and cultural differences that give rise to, for example, a desire by students to cook using their own facilities. Mr Jeffreson explained that each room would have a kitchenette although I do not think they are clearly nominated on the plans (but they can fit).

38 I am not persuaded that there is a deficiency of communal spaces and facilities on the basis of Mr Wilson's experience that indicates the contrary. Based on his evidence, there are opportunities for interaction between students and pastoral care is available (including through the university system). I am not persuaded to increase the communal facilities although the plans do require modification so as to identify kitchenettes within each room. I also find that there are grounds to improve access to the communal open space to facilitate its use and that can be achieved by deleting either Room 09 or 10 on the ground level to provide an internal accessway/passage to the communal open space. With this change (and noting a floor level difference as this space is currently a stairwell) additional floor area may be able to be added to Room 11 and that would improve what is otherwise a relatively confined room.

39 I consider that arrangements for external clothes drying, rubbish bin storage and bicycle parking have been improved by the Revision B plans although there may be scope for further review in association with the Council. That can be addressed by way of a permit conditions. The location of these facilities as proposed on the Revision B plans will require some additional minor window changes as discussed at the Hearing and that can be dealt with easily. Specifically modifications to the ground level rooms are required as follows:

•

convert the west-facing window in Room 4 to a highlight window;

•

screen the north-facing windows in Room 09 or 10 (whichever is retained as a result of Condition 1(b)) to minimise overlooking from the communal open spaces and car park.

40 With these changes I am persuaded that a satisfactory level of internal amenity would be achieved mindful that the proposal involves conversion of a 1930s building.

41 The main issues canvassed in submissions in relation to direct off-site impacts focus on the potential for overlooking, noise and increased shadowing. Visual bulk was not specifically raised as an issue by abutting neighbours. I address each disputed matter with regard to each interface.

42 The property to the north, at No. 7 Donald Street, has several habitable windows facing the review site and already experiences overlooking into its rear private open space from windows in the existing building. While some windows are more than 9 metres from that rear open space, some are not. Despite this, screening is shown between the north-facing balconies but not to the edge or to the rooms in the northern wing of the building that are closer to No. 7 Donald Street and have the potential for unreasonable overlooking. Views to No. 9 Donald Street are limited and more distant.

43 There are grounds for screening in my view and this would also address the potential for views into the rear open spaces of properties to the west of the review site at Nos. 2-4 and 6-8 Alfred Street that are open to view. Proposed landscaping may assist but the certainty of screening devices is necessary in my view for this site.

44 The use of the northern fire escape stairs to access the lower levels of the development was the subject of some discussion at the Hearing. This metal framed stair has direct and close views into No. 7 Donald Street and other properties at a longer view range. I am not persuaded that this stair should be trafficable on a regular basis and I will require notations to be added to the plans that the northern ground level exit door and northern external stairs shall only be used for fire escape purposes. The provision of an alternative passageway through the building as discussed at paragraph 38 will provide a better and more direct avenue for occupants to access the car park, external facilities such as bicycle parking and communal open space.

45 The land to the south is developed with four residential lots. At present, there are first floor windows with obscure glazing in the lower pane and the previous use of the land, involving those with sight impairment, appears to have cause little concern to adjacent residents. Although not specified on the plans I was advised that these windows would be retained and the Applicant did not oppose them being fixed with the upper pane to be openable. This is an acceptable outcome. The upper level would not result in overlooking to the south given skylights to the communal space at the top level. Ms Groeneveld was concerned that the opaque window pane in the first floor front windows had been removed and that occupants would be able to open their windows and look into her rear yard that abuts the front setback and part of the side wall of the existing building. I note that concern but do not consider that modifications to the windows are required.

46 Ms Groeneveld was also concerned about increased shadowing particularly in winter when her rear open space is already extensively shaded. I note that concern but the relevant test set by Clause 55 is the September equinox. The shadow diagrams indicate that the minor increase in overshadowing is within reasonable limits having regard to the tests under Clause.

47 Noise was raised as an issue for all adjacent residents who made submissions as well as those opposite the subject land on the east side of Donald Street. The proposal would result in additional noise than is currently experienced and may have been associated with previous uses of the land. On the evidence and information before me, a student housing development of this type is relatively quiet and does not result in late night parties and activities that some might recall from their own days as a student. Moreover, adjoining property owners can derive some comfort in the form of permit conditions addressing site management that would not usually apply to a conventional housing development or if, for example, students set up a shared house in the rental property at No. 7 Donald Street.

48 The conditions can address noise on the subject land, including some limit on the use of the communal open space as discussed at the Hearing, but do not address activity in the public realm. My evening inspection and some of the evidence confirms existing pedestrian use of Donald Street at night and that could be from people going to/coming from Chapel Street, nearby hotels or other residents (among a range of possibilities). While the proposal may cause more pedestrians on street with some additional noise, I do not think that there are sufficient grounds to reject the permit application for that reason in the context of the review site.

49 One of the primary concerns raised by the Council and Respondent Objectors is the potential or likelihood for the proposal to result in additional on-street parking in Donald Street. The Council's concern focussed on visitor parking, it otherwise accepting a reduced rate for car parking proposed on-site. Conversely, Respondent Objectors submitted that more spaces should be required for the proposed use, noting that Clause 56.02 would require one space per lodging room. The bases for these submissions are two fold. One is a concern that an already pressured on-street parking situation would be exacerbated by the proposal. The second is that reliance on on-street parking would bring with it greater safety risks for pedestrians and children in the street, increased traffic congestion and greater inconvenience to residents who cannot find a car park in the street.

50 In response to these and related concerns raised by the parties, the Applicant relied on the evidence of Mr Walsh and Mr Wilson as to the lesser needs for on-site car parking resulting from a student accommodation facility directed toward international students. Again I do not recite the detail as the statements are retained on the Tribunal's file.

51 As a residential building, the provisions of Clause 52.06 apply in relation to the amount of car parking required. That would be one space per lodging room (ie. 44 spaces). This permit application is also affected by the provisions of Clause 55 which also has a requirement for parking set out at Clause 55.03-11 Parking Provision. In this case, that would be one space per one bedroom dwelling[11] and visitor parking at a rate of one space for every five dwellings. I note the provisions of Clause 52.06 that the requirements of Clause 52.06-1 do not apply if (inter alia) there is a parking requirement for the particular use under another clause and Clause 55.03-11 could be said to do so. Whether under Clause 52.06 or Clause 55.03-11, there is an ability to grant a permit for fewer parking spaces that required by the table to Clause 52.06-5 or Standard B16.

52 The decision guidelines in both Clauses are not identical but have common elements such as the availability of pubic transport and on-street parking, local traffic management and safety considerations. Moreover, consideration of proposals involving a reduction in parking is assisted by Clause 22.13 setting out relevant factors for a reduction including restoration of a heritage building, if the parking generated by the use is lower than the requirements of Clause 52.06, if public transport is available and will be used, whether sufficient parking is available in nearby streets during operational hours and where the amenity of nearby residents is not adversely affected through the use of local residential streets for parking.

53 The case presented by the proponent in relation to car parking demands associated with the proposal is persuasive. Based on case studies of other student accommodation facilities and the format of the proposal, the uncontested evidence is that the likely rate of parking required to service the development will be much lower than associated with many other forms of residential use. The evidence presented by Mr Wilson and Mr Walsh indicates low car ownership rates for occupants of like facilities. The list included in Mr Wilson's statement at Appendix C shows the rate of car park usage in three developments in 2005 at rates that I calculate to be 0.02, 0.11 and 0.13 spaces per student.[12] His list also includes approved student housing developments setting out the number of students permitted and number of car parks within the approved plans for properties Student Housing Australia will commence managing in 2006 and 2007. I calculate those rates to vary between 0.08 and 0.33 for the 11 projects nominated.[13] Rate vary given locational factors and the higher rates are for properties in Malvern East, Hawthorn and Burwood whereas lower rates have been accepted for properties in Prahran, Carlton and North Melbourne. Mr Walsh adopted a rate of 0.15 spaces per bed (7 spaces for 44 students) as appropriate based on four case studies. With eight on-site spaces and 43 rooms[14] a rate of 0.19 would be achieved.

54 I note that two of the case studies were also referred to by Mr Wilson. Mr Wilson's rates were higher than shown in Mr Wilson's survey.[15] Adopting the higher rate identified in Mr Wilson's evidence, the estimated demand is still below that provided for by this proposal.

55 No data was able to be presented in relation to car parking rates for developments with students originating from locations within Australia. Nor was any specific data available relating to visitor parking associated with the case studies referred to other than in relation to one of Mr Walsh's case studies that included on-site visitor parking within the figures.

56 Thus, on the information before me and based on the intended use of the facility for students drawn from overseas, and primarily Asia, the amount of car parking proposed on-site would satisfy the projected demands of students resident on the land and probably also enable some visitor parking on-site (accommodated by a student opening the gates for a visitor or another arrangement approved by management). Bicycle parking demands are similarly not high based on the information provided by Mr Wilson and 10 spaces as suggested by the Council is generally in accordance with a minimum of eight bicycle spaces recommended by Mr Walsh. If students had another mode of vehicle such as a motorbike or moped then there would be opportunity for that to be parked as well.

57 The main difficulty I envisage in relation to car parking provision is the prospect that the building is used by students from other originating home-bases who have a different profile in relation to car ownership or car use. As indicated, there is no data before me on this point. One way to deal with this situation is to include a condition that requires the managing entity to advise prospective students that no on-site car parking can be provided once a situation is reached where incoming students with signed leases have been allocated the eight spaces available. That suggestion was not opposed by the Applicant and it would cause those with a car to be encouraged or directed to search elsewhere for accommodation. That type of restriction is desirable when the building has been accepted on the basis that it would be for predominantly overseas student use. I note that the Council has stated that it would not make resident parking permits available to residents of the proposed development and I do not intend making any findings in relation to that except to say that it is not a permit condition suggested by the Council and it is not a condition that I would include on a permit.[16]

58 Some visitor parking will occur on-street and it is possible that residents may park on-street from time to time instead of using their designated on-site parking bay. On the information before me, including my two visits to the site, I am satisfied that there is scope for on-street parking to service those visitors who might come to the subject development. The parking situation in Donald Street is pressured given that many houses have no on-site parking or do not use access available from a lane or a road. However, the area is not "parked out" and there are convenient options including parking along High Street.

59 The other arm of the case against the permit application relates to increased traffic on-street including waste collection vehicles. I am not persuaded that the additional traffic, to the extent that it might occur and/or be perceptible, is unreasonable even given the confined width of the street when parking occurs on both sides of the road and the presence of older persons and children in the street. The proposal enables all cars to enter and depart the site in a forward motion. Although I would prefer the driveway gates to be further into the site to avoid a vehicle overhanging the footpath when waiting for the gates to open, the width of the accessway does not allow for that possibility.

60 That leads me to address submissions on the adequacy of the access. It is 2.7 metres wide and less with the gates. It does not comply with the relevant Australian Standard and the Council sought for the driveway clear of the building to be widened to 3 metres. I am not persuaded to require any changes to the access shown on the plans as the arrangement exists today and is workable albeit not as one would design it if this was a new building (rather than a conversion). Other detailed changes to the car park sought by the Responsible Authority are not required or can be addressed by conditions. I am not persuaded to reduce the car parking spaces to seven as suggested by the Applicant to allow for more flexibility in relation to bin and clothes line locations. I am satisfied those facilities can be provided without the loss of a car space.

61 As noted earlier, the Applicant relied on the provisions of Clause 63 to allow an intense residential use of the land in terms in terms of an assessment of amenity impacts. However, Mr Scally conceded an arguable difference between a residential building, being a hostel for visually impaired persons many of whom were elderly, and student housing.

62 As recently set out by the Tribunal in Stoiljkovic[17] the provisions of Clause 63 given rights to existing uses but within set parameters. As the Tribunal conveniently summarised:

The provisos in cl.63.05 include that the existing use may continue provided that no buildings or works are constructed or carried without a permit. No such permit is to be granted unless the buildings and works comply with any other building or works requirements of the planning scheme. Furthermore, any condition or restriction to which the use is subject, including any implied restriction on the extent of the land subject to the existing use right and the extent of activity within the use, must continue to be met. Lastly, the amenity of the area must not be damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use rights.

63 Some information and evidence was provided to me in relation to a continuing use right that might be established pursuant to the provisions of the Clause. That was primarily in the form of anecdotal evidence from local residents, Mr Kelderman's observations in 1984-85 when he lived adjacent to the Villa Maria Society in Donald Street, and some submissions by Mr Scally in relation to more recent use on the subject land when purchased by his client some 18 months ago.

64 There was, however, little in documented form submitted to the Tribunal to establish that a right might exist. For that reason, and given the somewhat uncertain substance of some submissions on this point, I do not think it is reasonable to place reliance on the provisions of Clause 63.05 for a continuing use involving 32 full-time residents and their carers at the approval date of the Stonnington Planning Scheme in July 2000[18] to establish a right for an intense residential use as intended in the current proposal. That view is reinforced by the fact that on 21 July 2000 the Council issued a permit for the use and development of a residential building on the land and an extension to increase the number of beds from 32 to 40[19]. Ultimately this is not a critical matter in my view as I am satisfied for the above reasons that a planning permit should issue for the use and development of the land for student accommodation with up to 43 rooms and 43 students.

65 I have relied on the draft permit conditions supplied, as required, by the Council. These were based on the recommendation of the planning officer in the report considered by the Council on 19 December 2005. as indicated above, I have not adopted internal changes to create additional communal spaces other than to improve access to the communal open space. I have adjusted other conditions, such as drainage and disability access, as well as varied conditions relating to a management plan and a Section 173 agreement in accordance with my findings.

66 For the reasons I have set out above, I conclude that the proposal represents an acceptable outcome in terms of the policies and decision guidelines of the Stonnington Planning Scheme. I will direct that a permit issue subject to conditions that will include modifications to the plans, a restriction on the use through a Section 173 agreement and the preparation of a site management plan.

[1] At the commencement of the Hearing I granted leave for Mr R McCracken to be joined as a party to the proceeding without objection from any party.

[2] I refer to these stairs as the "northern fire escape stairs" as the exit doors are in the northern façade of the building.

[3] Page 2 of Mr Chanen's and Ms Henry's submission.

[4] Page 1 of submission by Ms S Kelsall for Mr B McCormick & Ms J Thompson.

[5] A recent example is "More foreign students choose Australian unis", page 5 The Age 6 May 2006.

[6] Refer Walters vs Whitehorse City Council [2005] VCAT 1428 at paragraph 30.

[9] The "primary area" relates to 800 metres of Monash University Caufield Campus.

[10] For example Iloray Pty Ltd v Darebin CC and Ors [2003] VCAT 692 at paragraph 48.

[11] Each of the proposed rooms within the application have the four elements required to comprise a "dwelling" for the purposes of Clause 74 of the Scheme being a sink, food preparation facilities, bath/shower and closet pan and wash basin.

[12] Campus Walk 1 and 2 (Waverley Road Malvern East) and Melbourne Student House in High Street North Melbourne.

[13] Table prepared by the Tribunal based on information set out in Appendix C of Mr Wilson's statement of evidence:

B Central Apartments in Waverley Road/Darling Road Malvern East

University Square Apartments Barry & Leicester Streets Carlton

Riversdale Road Apartments Riversdale & Station Streets Burwood

[14] Given the change referred to in my paragraph 38 would result in one room being removed.

[15] Campus Walk 1 (Malvern East) was shown by Mr Walsh to have 2 students requiring parking while Mr Wilson showed 11 car spaces as being used in 2005. Campus Walk 2 (also Malvern East) was shown by Mr Walsh to have 1 student and 1 staff parking required whereas Mr Wilson's evidence states 7 car park spaces were used in 2005. In these cases, the on-site car parks were not fully utilised with vacant spaces remaining.

[16] A number of cases deal with this matter involving such a permit restriction proposed by the City of Port Phillip, see for example Krapinvensky vs Port Phillip CC and Anor [1999] VCAT 132. Stameen Pty Ltd vs Port Phillip CC [2003] VCAT 1903 deals with the situation of such a restriction being a note on a permit.

[17] Stoiljkovic v Cardinia SC No. 6 [2006] VCAT 738 at paragraph 5.

[19] Permit 518/99 referred to in Mr Bowden's submission.