1. Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 the application is amended by changing the name of the applicant to:

1. The decision of the responsible authority in relation to permit application no. MV/785/2011 is set aside.
2. A permit is granted in relation to land at 119 Maribyrnong Road, Ascot Vale. The permit will allow:

• Partial demolition, use and development of the land for a three storey mixed-use development and a reduction in car parking requirements in a Heritage Overlay

generally in accordance with the endorsed plans and subject to the conditions contained in Appendix A.

Mr Daniel Bowden, town planning consultant, SongBowden Planning. He called evidence from:

• Mr Evan Boloutis, traffic engineer, EB Traffic Solutions.

Ms Lorraine Stupak, town planning consultant, LS Planning P/L.

Mr Cary Helenius and Mr Brendan Feehan appeared in person.

Partial demolition, use and development of the land for a three storey mixed use development comprising a ground floor office and five dwellings and the provision of one car space.

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

Council advised that it would have refused to grant a planning permit on grounds of inadequate car parking and access issues, overdevelopment of the site and the proposal does not respect the heritage character of the site.

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 building. To the south is a right of way, beyond which are the rear of residential properties that have frontage to The Parade. A public car park is also located to the south east of the site.

Goetz & Anor v Moonee Valley CC [2011] VCAT 1181 (22 June 2011).

1. An application was made to the Moonee Valley City Council for a permit for the partial demolition, use and development of the land for a three storey mixed-use development and a reduction in car parking requirements in a Heritage Overlay. Council failed to make a decision within the prescribed time but advised the Tribunal that it would have refused to grant a planning permit on the grounds of inadequate car parking and access issues, overdevelopment of the site and the proposal does not respect the heritage character of the site. It is a decision that the permit applicant has requested be reviewed by the Tribunal.
2. It was put to me by Mr Bowden that this is a 'repeat appeal' following an earlier decision Goetz & Anor v Moonee Valley CC[2]. Reference was made to 'repeat appeal' principles including Jopsal Pty Ltd v Moonee Valley Council [10 February 2010] where the following observations were made:

[3] Mr Pitt also submits that because there has been no material change in the planning provisions, the built form context and very limited change to the heritage or urban character aspects of the proposal, that therefore there is no basis for departing from the Tribunal's earlier decision in these respects. I agree with him and am satisfied that this is a repeat appeal. There are numerous Tribunal cases dealing with repeat appeals including Van De Velde v Wodonga CC [2005] VCAT 1426 and K & B Reichert v City of Banyule & Ors, (1996/38819) where four factors were identified which might justify a departure from an earlier determination:

• significant changes in the application itself;
• changes in the circumstances of the land and its surrounds;
• changes in planning policy; and/or
• changes in the interpretation of the facts or law relevant to the Tribunal's consideration.

1. In applying the 'repeat appeal' principles, I note that there has been no material change in the circumstances of the land and its surrounds, no changes in planning policy applying to the site and surrounds and/or no change in the interpretation of the facts or law relevant to the Tribunal's consideration. Mr Bowden put to me that the changes made to the building are significant which include the introduction of a dual stacker to provide two car spaces, rear access to the office component and improved internal amenity to the apartments. I find that this is a repeat appeal. In light of this, I will review what Member Sibonis's conclusions were in the previous case?
2. He observed that the site is located within a Business 1 zone and a Major Activity Centre and therefore it is a location where substantial change is envisaged and encouraged by the policies in the planning scheme. He considered that the absence of on-site car parking for the office use was a concern. He also raised concern with some internal amenity issues of the proposed development. The issue of visual bulk and amenity concerns was raised by Mr Helenius and Mr Feehan. Both Mr Helenius and Mr Feehan raised concern regarding the impact of a three storey wall on the shared east/west boundaries. In the earlier decision, Member Sibonis made some conclusions regarding the possibility of walls on the boundary which reads:

[20] 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.

[21] 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.

1. I note that Member Sibonis did not make direct comment to the private open space of Mr Helenius adjoining the site to the east. This rear private open space is used partially for a garage with rear access but also notably for a garden area with several large trees and garden area. I make the same observation of Member Sibonis, that whilst impact of the proposed development will be significant, the built form proposed is consistent with the zoning of the land and future direction and scale of development for the site. Whilst Mr and Mrs Helenius use their property purely for residential purposes, this is not a residential zone where a higher protection of private open spaces is afforded. I find no reason to depart from the earlier conclusion of Member Sibonis regarding the issue of the proposed built form. I also make the observation that Council did not refuse the proposal on built form or amenity grounds.
2. The key issues for determination in this matter include:
   • Is if the proposed car parking waiver is appropriate?
   • Will the occupants of the proposed dwellings be provided with an acceptable level of amenity?
   • Does the proposal respect the heritage character of the site and surrounding area?
3. During the hearing many concerns were raised that are outside the scope of my consideration. Whilst I acknowledge that Mr Helenius family may have resided in their home for many years, I must assess the proposal based on the planning merits and the planning scheme zoning and policies. This is a business zone where a range of uses are permissible. It is not a residential zone. I further make the observation that matters relating to building issues such as potential for cracking, is to be considered at the building approval stage.
4. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Moonee Valley Planning Scheme, I have decided to grant a planning permit. My reasons follow.

Is if the proposed car parking waiver is appropriate?

1. It is proposed to provide a car stacker that provides two car spaces allocated to the office use. The five residential apartments are not provided with any parking. The issue of on site car parking was discussed in the previous decision with Member Sibonis making the following observations:

[11] 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.

[12] 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.

[13] 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.

[14] 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.

[15] 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.

1. Firstly to the issue of parking and the office use. Member Sibonis was concerned about the absence of parking for the office use. It was his conclusion that the office use should be provided with one car space. This has been achieved with this current proposal. The office space is provided with a car stacker that allows for two car spaces. I accept the evidence of Mr Boloutis that two car spaces for the office use is sufficient with any visitor car parking able to be catered for by the public car park or on street. Visitor parking is likely to be a short term demand.
2. The second issue is the absence of car parking for the five residential apartments. In this regard, Member Sibonis concluded that this location may be one which could potentially represent a practical option for households without a car.
3. Council refused the proposal on the grounds of inadequate car parking, failing to satisfy clause 52.06 of the planning scheme. Council's traffic engineers did not object to the proposal but expressed concern of a complete waiver of car parking for the site and indicated that there was insufficient justification for the waiver of car parking especially in light of the known problems experienced with residents and the availability of short term car parking in Maribyrnong Road. Both Mr Helenius and Mr Feehan expressed concern regarding the waiver of car parking for the residential apartments.
4. In his evidence, Mr Boloutis put to me that the waiver of car parking for the residential apartments is appropriate given that there are a number of available spaces available in on and off street parking areas to accommodate the peak parking demands anticipated to be generated by the proposal, access to public transport and anticipated car ownership. It was put to me that car occupancy based on no. of bedrooms in Moonee Valley is 0.70[3] and there are 348 one bedroom apartments in the municipality with no motor vehicle. It was further put that there would be no residents permit parking attached to the development, therefore the apartments would only be attractive to those without cars.
5. In considering the option of waiving the provision for five car spaces, I refer to clause 52.06 which sets a number of objectives including To support sustainable transport alternatives to the motor car. Clause 52.06 contemplates a reduction in the provision of car parking including 'reducing to zero'. In considering a reduction, the responsible authority must consider a number of issues including the availability of public transport in the locality, the car parking demand, the availability of on street parking, public car parks, the anticipated rates of car ownership and the provision of bicycle parking on the site.
6. One option that discussed during the hearing was the sharing of the car spaces by the offices during the day and residential apartments after hours and week ends. Whilst this option may have some merit, it is not without difficulty. It is not an option that I will require as a permit condition.
7. I find that a waiver of five car spaces is appropriate. The State and Local Planning Policy Framework both encourage alternative transport including walking, public transport and cycling[4]. There is a low level of car ownership for one bedroom apartments within the municipality. The site is located within a Major Activity Centre. Activity centres are encouraged as places to work, shop, live and recreate which will result in fewer car trips as services and facilities are co-located. Based on a survey undertaken by Mr Boloutis there is available parking within 250 metres of the site to cater for any short term parking demand. The development provides bicycle parking facilities for each apartment and the site has excellent access to public transport.
8. Mr Bowden put to me that the question to be answered is if you can not waive car parking in a site like this, where do you? If Council is to truly advance activity centre policies combined with alternative and sustainable transport strategies, then small apartments such as the proposed in a location such as this may be seen as good candidates for zero parking. I am persuaded by Mr Bowden that the site satisfies the planning policy criteria and clause 52.06 to waive the requirement for car parking for the five residential apartments.
9. Issues were raised regarding the proposed access to the car spaces and the use of the right of way for access to The Parade. I am persuaded by the evidence of Mr Boloutis that the access is workable and acceptable. I also used the right of way to exit to The Parade, and whilst I found it a 'tight' move, I was able to achieve it. This is not a reason to refuse to grant a planning permit but I will require the suggestion of Mr Boloutis to require curvilinear mirrors to be located on both walls adjacent to the entrance of the car stacker to warn motorists exiting the car stacker of any motorists travelling along the laneway (and vice versa). I will require details of the car parking stacker to be provided.

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

1. I consider there is an acceptable level of internal amenity to the residential apartments with the exception of a concern with the provision of the light courts where they are only 2 square metres. I consider that any light court should be at least 3 square metres. A 3 square metre light court would be consistent with the provision of clause 55.04-3 Daylight to existing windows objective which seeks To allow adequate daylight into existing habitable room windows. I will require this change as a condition of permit. This building in apartment living within a Major Activity Centre. The layout and level of internal amenity reflects this location.

Does the proposal respect the heritage character of the site and surrounding area?

1. Council refused the application on the grounds that the proposal does not respect the heritage character of the site and surrounding area and that the potential to affect the integrity of the adjoining heritage listed dwellings.
2. I first make the observation that Council's Heritage Advisor supported the application subject to detail conditions relating to type of materials used. Secondly, I find that the alterations do not impact on the streetscape view of the existing building. The subject building and those adjoining are all 'contributory' buildings within Council's Heritage Study. Having regard to the proposed works, to Council's Heritage Advisors comments and the fact that the new works retain largely the front façade (other than those works to improve the ground floor elevation), I find no reason to refuse the proposal on heritage grounds.

1. Having regard to the above, the decision of the responsible authority will be set aside and a permit issued subject to conditions.

• Partial demolition, use and development of the land for a three storey mixed-use development and a reduction in car parking requirements in a Heritage Overlay

1. Before the use and development starts, amended plans (three copies) must be submitted and approved to the satisfaction of the Responsible Authority. The plans must be drawn to scale, with dimensions, and be generally in accordance with the plans submitted and assessed with the application but modified to show:
   • (a) The word 'Unit' replaced with 'Dwelling'.
   • (b) The light courts provided are to be a minimum area of 3 m2 in area.
   • (c) Provision and details of curvilinear mirrors to be located on both walls adjacent to the entrance of the car stacker to warn motorists exiting the car stacker of any motorists travelling along the laneway (and vice versa).
   • (d) The aluminium sections proposed across the facade to be replaced with rounded polished stainless steel.
   • (e) The plinth provided across the facade to be tiled with a rectangular ceramic tile of appropriate heritage colour.
   • (f) The frameless glass entrance doors proposed across the facade for the office and dwellings to be replaced with a timber frame.
   • (g) Details of the external paint colour(s) proposed across the existing façade in accordance with Condition 4.
   • (h) All bedroom windows which abut the light court to be obscure glazed up to 1.7m above the finished floor level and fixed or openable up to a maximum of 150mm. A clear notation to the plans that the car spaces located on the ground floor are to be allocated to the office use and Dwelling 5.
   • (i) Each dwelling is to be provided with adequate storage area.
   • (j) The bicycle parking spaces to be a minimum of 1.7m in length.
   • (k) The make and model of the mechanical car stacker system, with required dimensions and operating system clearly shown on the plans.
   • (l) A schedule of all external material and finishes. The schedule must show the material, colour (including colour samples) and finishes of all external walls, roof, fascias, windows frames, fences and paving.

Once approved these plans become the endorsed plans of this permit.

1. The layout of the site and the size, design and location of the buildings and works permitted must always accord with the endorsed plan and must not be altered or modified without the further written consent of the Responsible Authority.
2. The office area must remain as a single premise at all times.
3. The external paint colours for the existing façade must be consistent with the original fabric and must not be altered without the written consent of the Responsible Authority.
4. Floor levels shown on the endorsed plan(s) must not be altered or modified without written consent of the Responsible Authority.
5. The privacy screens as shown on the endorsed plans must be installed prior to the occupation of the building.
6. The amenity of the area must not be detrimentally affected by the use of land, through:
   • (a) Transportation of materials, goods or commodities to or from the land,
   • (b) Appearance of any building, works or materials,
   • (c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot ash, dust, waste water, waste produces, grit or oil,
   • (d) Presence of vermin,or
   • (e) in any other way.

1. Prior to the commencement of any building and works a Construction Management Plan must be submitted to and must be approved by the Responsible Authority detailing the construction activity proposed. The plan must include, but not be limited to:
   • (a) Hours of construction.
   • (b) Dust management.
   • (c) Parking and traffic movements of all worker's vehicles and construction vehicles.
   • (d) Any impacts upon adjacent roads and pedestrian walkways and providing for adequate movement and circulation of vehicles and pedestrians adjacent to the land during the construction phase.
   • (e) Access routes for construction vehicles.
   • (f) Temporary fencing works.
   • (g) Number of workers expected to work on the site and any time.
   • (h) Methods for limiting the escape of dust and litter from the site.
   • (i) Details regarding the method by which the public can register complaints and the details for investigating, action taken and method of response to those complaints.
   • (j) The method by which the public will be informed about the progress of works associated with construction.
   • (k) A liaison officer for contact by residents and the Council in the event of relevant queries or problems experienced.
   • (l) Where stock piling or other material will be placed.
   • (m) Clean-up measures and corrective action for materials spilt off site specifying sweeping and or collection for disposal, but not hosing or sweeping of any materials down the stormwater drain system.

The Construction Management Plan must be to the satisfaction of the Responsible Authority. Once submitted and endorsed by Council the plan shall form part of this permit and must not be altered or modified without the further written consent of the Responsible Authority.

1. Prior to the issue of an Occupancy Permit, all boundary walls must be cleaned and finished to the satisfaction of the Responsible Authority.
2. Any service units, including air conditioning units, must not be located on any of the balconies unless appropriately visually and acoustically screened to the satisfaction of the Responsible Authority.
3. Car and bicycle spaces must not be used for any other purpose other than the parking of vehicles and bicycles to the satisfaction of the Responsible Authority.
4. The area set aside for the parking of vehicles, together with the associated access lanes as delineated on the endorsed plan(s) must be to the satisfaction of the Responsible Authority;
   • (a) be provided and completed prior to the commencement of the use hereby permitted.
   • (b) thereafter maintained.
   • (c) be made available for such use at all times and not used for any other purpose.
   • (d) be properly formed to such levels that it can be used in accordance with the endorsed plan.
   • (e) be drained and sealed with an all-weather seal coat.
5. Provision must be made for the drainage of the land including landscaped and pavement areas. The discharge of water from the land must be controlled around its limits to prevent any discharge onto any adjoining or • adjacent property or streets other than by means of an underground pipe drain which is discharged to an approved legal point of discharge to the satisfaction of the Responsible Authority.
6. An on-site stormwater detention drainage system must be installed on the subject land to the satisfaction of the Responsible Authority. Prior to the commencement of building and works a drainage layout plan, together with computations and manufacturers specifications, must be prepared by a suitably qualified Civil Engineer and submitted to and approved by the Responsible Authority. Once approved by the Responsible Authority the plan must be carried out to the satisfaction of the Responsible Authority.
7. All stormwater runoff from the development is to drain via an underground drainage system and discharge to the ROW via an On Site Detention System.
8. Prior to the commencement of the development, the applicant shall submit a Waste Management Plan to the Responsible Authority for approval. The Waste Management Plan shall be in accordance with the City of Moonee Valley's "Waste Management Plans - Guidelines for Applicants" and once approved shall be implemented to the satisfaction of the Responsible Authority.
9. The development must be provided with external lighting capable of illuminating access to each garage, car parking space and pedestrian walkways. Lighting must be located, directed and shielded and of limited intensity so that no nuisance or loss of amenity is caused to any person within or beyond the site to the satisfaction of the Responsible Authority.
10. This permit will expire if one of the following circumstances applies:
    • The development is not commenced within two (2) years from the date of issue of this permit; or
    • The development is not completed and the use is not commenced within four (4) years from the date of issue of this permit.

Before the permit expires or within three (3) months afterwards the owner or occupier of the land may in writing request the responsible authority to extend the expiry date.

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

[2] Goetz & Anor v Moonee Valley CC [2011] VCAT 1181 (22 June 2011).

[3] Based on ABS Census (2011): Car occupancy based on no. of bedrooms - Moonee Valley.

[4] Clause 11, 18 and 21.03-2 of the Moonee Valley Planning Scheme.