Mr D Bowden, Town Planner of Daniel Bowden Town Planning

Mr P English, Town Planner of Peter English & Associates Pty Ltd

Construction of alterations and additions (including a three-storey extension) to accommodate an office and four dwellings.

Application under Section 79 of the Planning and Environment Act 1987.

Cl. 34.01-4 (construction of buildings and works on land within the B1Z).

Cl. 43.01-1 (demolition and the construction of buildings and works on land in HO15).

Cl. 52.06-1 (reduction/waiver of the car parking requirements).

Cl. 10, 11, 11.01, 11.04, 15, 15.01, 16.01, 17.01, 18, 18.01, 21, 34.01, 43.01, 52.06 and 65.

The review site is located on the south side of Maribyrnong Road, some 80 metres west of Union Road. It has a frontage of 4.98 metres, a depth of 48.75 metres and an area of 242.77 square metres. The land is occupied by a two-storey Victorian terrace which accommodates a shop and dwelling. To the east is a similar two-storey building that forms part of the terrace row.

To the west is a single storey commercial building and associated dwelling. To the south is a right-of way, beyond which are the rear of residential properties that have frontage to The Parade.

1. In September 2010, an application was made to the Moonee Valley City Council for a permit to partially demolish the existing building on the review site and to construct alterations and additions. The purpose of the development is to accommodate an office and four dwellings. The Council did not determine the application within the prescribed period and this Application to the Tribunal is for a review of the Council's failure to grant a permit.
2. The Council has since considered the proposal and resolved to deny its support on grounds relating to car parking, impacts on the amenity of adjoining land and inadequate internal amenity for the proposed dwellings. Objectors to the application oppose the grant of a permit on similar grounds.
3. The key issues for determination may be summarised as follows:
   • Is the proposed reduction/waiver of the car parking requirements justified?
   • Will the development have an unreasonable impact on the amenity of adjoining land?
   • Will occupants of the proposed dwellings be provided with an acceptable level of amenity?
4. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions presented with regard to the applicable policies and provisions of the Moonee Valley Planning Scheme, I have decided to affirm the Council's decision. My reasons follow.

Is the proposed reduction/waiver of the car parking requirements justified?

1. This is a key issue in contention between the parties. The Council and residents argue that it is not appropriate to waive the car parking for the proposed office use and to provide an on-site car space for only one of the dwellings. They submit that the public car parking in the vicinity of the site is time-restricted and is in high demand throughout the day. It was also submitted that the available long-term parking is fully occupied by nearby traders by 7.00am.
2. In support of the proposal to provide only one car space on the land, the Applicant referred to the activity centre location of the review site[2], its accessibility to public transport (notably the tram route that runs along Maribyrnong Road) and the various policies of the Planning Scheme that seek to reduce dependence on private motor vehicles. The Applicant did not dispute the submissions that parking is in high demand, and that long-term car parking is limited. It was stated, however, that the proposed dwellings will appeal to persons who do not own a car and to those who do not want to pay for a dwelling with a car space they do not need. The Applicant went on to suggest that this is a location where "not owning a car is sustainable".
3. The Planning Scheme policies refer to the desirability of concentrating developments in activity centres, being strategic locations with a high level of accessibility to a range of services and facilities[3]. Similar themes are found within the Local Planning Policy Framework. For example, the Municipal Strategic Statement (MSS) at Clause 21.03-2 includes the following strategy:

Promoting activity centres as places to work, shop, live and recreate which will result in fewer car trips as services and facilities will be co-located.

1. The same clause includes a further strategy to encourage alternative transport use (such as walking, public transport and cycling) in the planning and design of new developments.
2. These policies and strategies are aimed at achieving sustainable environments, but are also related to the broader objective of consolidating the existing urban form to make greater use of existing infrastructure.
3. I was not provided with any empirical evidence to demonstrate the availability of car parking within the vicinity of the review site. Nevertheless, it was generally agreed amongst the parties that the majority of the car parking is time-restricted and that the available long-term parking is heavily utilised. Having regard to the relevant policies, the availability of public transport and the activity centre context of the review site, the provision of small dwellings without car parking in locations such as this can represent an acceptable outcome. Whether it does in any particular instance is dependent on the facts and circumstances of that case.
4. The restricted site dimensions limit the number of car spaces that can practically be accommodated on the land. If parking is used as the key driver, it is likely to result in a limited ability to provide increased development density on this site. This must then be balanced against the suite of policies than actively promote and encourage higher density development in activity centres.
5. The site is accessible to the wide range of services and facilities available within the centre, and to public transport. If persons who do not own (or do not wish to own) a vehicle were looking to reside in an area where they would encounter limited inconvenience as a result of this, then this may be an appropriate location for them. Residing in such a location can, potentially, represent a practical option for households without a car.
6. The nature of the surrounding parking conditions would make it very difficult for future occupants of the development to own a vehicle. Parking in Maribyrnong Road and Union Street is time-restricted and the spaces in the nearby residential streets are subject to resident parking permits (to which occupants of this development will not be entitled). The only potentially available spaces are the all day spaces in the public car park, but these are occupied by traders during the day. My inspection revealed that unrestricted parking is also available in Normanby Street, although this was also heavily utilised. As a consequence of these circumstances, the dwellings within this development will not be attractive to persons owning a car.
7. The absence of on-site car parking for the office use concerns me. Mr Bowden referred me to a decision where the Tribunal had supported a reduction of car parking for a development within this centre. In that particular case, however, on-site car parking was being provided for each of the dwellings and for tenants of the commercial premises, with visitor and customer parking being accommodated on the street. This proposal is different in that the proposed office use will not have any on-site car parking. I have not been persuaded that this is an acceptable outcome, given this use's need for long-term car parking and the scarcity of this form of parking in the vicinity of the review site. My conclusion is that the office use should be provided with one car space. The practical issue of accessing the office from the rear of the property may be addressed by combining the office and rear dwelling into one occupancy, similar to a 'home occupation' arrangement. However, there may well be other design solutions.
8. Mr Bowden suggested that, if I were to find that additional car parking should be provided on the land, then this could be achieved by the installation of a stacker system. He did emphasise, however, that this is not a preferred response. I have not been provided with details of a suitable stacker system or how it would work in practice, but it may be an option which could be investigated as part of any future application.

Will the development have an unreasonable impact on the amenity of adjoining land?

1. The key amenity impacts referred to in the Council's and residents' submissions are those of overlooking, and visual bulk. I will consider each of these in turn.
2. According to the plans, screening (which is 1.7 metres high and has 25% permeability) is proposed to be provided to the stairwell and to the eastern and western edges of the rear balconies. This will restrict views of the adjoining properties to within the parameters of Clause 55.04-6 (Standard B22)[4]. The balconies are sited more than 9 metres from the rear of the neighbouring residential properties to the south. According to Standard B22, this distance is sufficient to restrict overlooking to an acceptable level. Screening to the rear of the balconies is therefore not required.
3. The Council expressed some concerns regarding the potential for overlooking from the stairwell, given that screens are only provided adjacent to the landings. I accept the Applicant's submission that the screens will prevent downward views into the adjoining property to the west and will adequately protect the privacy of that property.
4. Submissions also referred to the development's potential to present visual bulk to the neighbouring properties. It is intended to extend the existing boundary walls to within 9.65 metres of the rear property boundary. These walls will have a height of up to 9.5 metres. While the top of the new walls will be consistent with the existing boundary walls, their overall height is greater at the rear due to the fall of the land.
5. The adjoining land to the east and west has open space areas behind the respective buildings. The proposed walls will abut these spaces and will have an obvious visual impact. The issue to be determined is whether this impact is acceptable, when considered within the strategic and physical context of the review site. It is highly relevant that the site is within both a Business 1 Zone and a Major Activity Centre, as are both adjoining properties to the east and west. It is a location where substantial change is envisaged, and encouraged, by the policies in the Planning Scheme. It is also relevant that a purpose of the Business 1 Zone is to encourage intensive development in business centres. While the impact of proposed walls will be significant, it is a built form which is consistent with the existing scale of development in the centre. The impact is one which could be reasonably anticipated as arising from development within a centre such as this.
6. Mr Feehan works and resides in the adjoining property to the west. He advised that the rear area of his land, while entirely paved, is used for secluded private open space purposes by his family. In response to my questions, he confirmed that a further open space area is provided to the west side of his building, removed from the review site. Based on the width of Mr Feehan's property (approximately 9.8 metres) and the existence of a second open space area, I do not consider that the development will have an unacceptable impact on this land. This is particularly so given the zoning and activity centre context. It is conceivable that, over time as the policies are implemented, development will occur at the rear of the adjoining sites and will potentially extend to the side boundaries.
7. Mr Lewis is concerned about the overall height, scale and bulk of the development, and that the development will not integrate with the neighbouring residential properties. The proposed addition will be located in excess of 12 metres from the rear of the residential land to the south. This separation is more than double that nominated at Standard B17 at Clause 55.04-1 and is adequate to ensure that unreasonable visual bulk is not presented to these neighbouring properties. I accept that the building will be visible from these sites. However, visibility is not an automatic indicator of an unreasonable impact. The impact is lessened by the intervening distance and should be sufficient to ensure that the development, while visible, does not have an over-bearing presence. Again, the acceptability of the impact must be assessed within the strategic context of both the review site and the neighbouring properties. Being in an area identified for significant change, I do not consider that the development will have an unacceptable impact on the amenity of the properties to the south.

Will occupants of the proposed dwellings be provided with an acceptable level of amenity?

1. The Council considers that the absence of north-facing open space areas, and the provision of only one north facing window will result in a compromised level of amenity for residents. The narrow width of the review site, in conjunction with its north-south orientation, makes it difficult to provide north facing balconies and windows for the dwellings. The Applicant advised that heritage considerations prevent the provision of a balcony in the north elevation. It was further submitted that the proposed south-facing balconies, while lacking direct solar access, will provide an adequate level of amenity and will have the advantage of allowing city views.
2. I consider that the open spaces for Units 1, 3 and 4 are acceptable. They are of adequate dimensions, are directly accessible from the living area and will have some solar access in the morning or evening. Although not ideal, when considered within the context of the review site, they will provide a reasonable level of amenity for occupants. I am less persuaded that the open space area of Unit 2 is acceptable. It is defined by walls on all sides, and is partially covered so that only a 1.23 metre width is open to the sky. It will most likely have less solar access than the other open space areas, and its amenity will be further compromised by its enclosed nature. I do not consider this to represent an acceptable outcome.
3. Although not raised in the submissions, I also have some concerns regarding the amenity of dining room of Unit 2. It is an internal room without a window. It is proposed to include two 'velux opening skylights' to provide light and ventilation. The absence of a window and any opportunity for an outlook from this room will result in a compromised level of amenity for occupants. An alternative design solution could perhaps see an open plan living/dining area, with the skylights retained to supplement daylight into this space.

1. For these reasons, I have concluded that a permit should not be granted. The decision of the Responsible Authority is affirmed.

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

[2] The land forms part of the Ascot Vale Major Activity Centre.

[4] The decision guidelines at Clause 34.01-4 refer to consideration of Clause 55 in the assessment of applications for the construction of buildings and works on land in the Business 1 Zone.