A permit is granted for the use and development of the land at 3 Albion Street, St Kilda, for the purpose of a boarding house in accordance with the endorsed plans and subject to the conditions included on the Responsible Authority's Notice of Decision to Grant a Permit issued on 3rd March 1999, when modified as follows:

1. Condition 1 shall be deleted and replaced with the following:

"1. Before the development begins, amended plans which are to the satisfaction of the Responsible Authority must be submitted to the Authority for approval. The plans must be drawn to scale and dimensioned. Three copies must be provided. When approved the plans will be endorsed accordingly, and will then form part of the permit. The plans must be generally in accordance with the plans considered by the Responsible Authority but modified to show:

* The provision of four non-tandem on-site car parking spaces generally as provided on Drawing P1 of October 1998 prepared by Baxter and De Jong, Architects. The dimensions of those spaces must met the Planning Scheme requirements.

* The driveway to the spaces having a minimum width of 3.0m.

* The driveway in Somers Street having a minimum 1m clearance to the street tree adjacent to the north-east corner of the site.

* All exit doors fitted with self-closing devices to minimise the time that the doors are open.

* The location of any air-conditioning plant room which is to the satisfaction of the Responsible Authority, and acoustically baffled to the Authority's satisfaction.

* The deletion of Unit 101 in the main building and the extension of the existing or another lounge into that space, but in such a way that the existing window in the northern elevation at Level 1 of the building provides light to the main corridor.

* The inclusion of skylights to the corridor on Level 2 of the main building.

* The inclusion of glazed doors to the lounges, kitchens, stairs and laundries on all floors of the main building so as to improve natural lighting to the corridors.

* Access from Bedsitter 104 in the Edwardian building to the south facing balcony, and the division of that balcony space between Bedsitter 104 and Bedsitter 105, with a suitable privacy screen erected between the two parties of the balcony."

"2. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority. Note: This does not obviate the need for a permit where one is required."

3. Wherever appearing "rooming house" shall be replaced by "boarding house".

4. Condition 5 shall be amended by the addition of the following clause:

"and no more than 42 persons may be accommodated on the site at any one time."

6. Condition 14 shall be amended by addition of the following phrase after "plan" where first appearing:

"generally in accordance with the landscape context plan prepared by Botanix Consultants of 26 July 1999 as tabled at the Tribunal hearing of the applications for review,"

7. The phrase "to the satisfaction of the Responsible Authority" shall be added at the end of Condition 12, and to Condition 19 after the words in brackets.

8. The following additional conditions shall be included on the permit:

"* A telephone available to residents must be provided on each floor of the two buildings.

* Occupancy of the boarding house is restricted to persons who are income and asset eligible for public housing.

* Before the use begins, the operator under the permit must enter into an agreement with the Responsible Authority made pursuant to Section 173 of the Planning and Environment Act 1987 in which it is covenanted that the residential units on the site will not be subdivided nor converted to dwellings or other forms of accommodation within the meaning of those terms in the Planning Scheme.

Before the use begins, the agreement must be placed as a restriction on title. The operator under the permit must pay all reasonable costs associated with the preparation and registration of this agreement.

* The use must be managed by the operator under the permit in such a way as is to the satisfaction of the Responsible Authority and achieves the following:

* medium to long-term tenancy is encouraged, that is occupants will generally stay for periods of longer than three months.

* the number of cars or trucks which are owned or driven routinely by occupants of the site and which are regularly parked in Albion or Somers Street does not exceed six in number.

* regular on-going maintenance of the buildings and landscaping occurs.

* prompt response to calls to management from occupants is ensured.

To this end, a management plan which is to the satisfaction of the Responsible Authority, must be prepared for approval by the Authority within six months of commencement of the use. Any variation to that plan must be authorised by the Responsible Authority."

The Responsible Authority is directed to issue a modified permit in accordance with this order.

Mr Colin Barlow of Middletons Moore & Bevins, Lawyers, appeared for the Responsible Authority.

Mr John Cicero of Best Hooper, Solicitors, appeared for the permit applicant.

Mr Peter Davey appeared on behalf of himself, Mrs Amanda Davey, Mrs Shirley Painter and Ms Gallagher.

Mr Malcolm Teesdale appeared on behalf of himself and Mrs Mary Teesdale.

Messrs Davey and Teesdale were admitted as parties to the proceedings pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998, at the outset of the hearing.

1. By Application for Review No. 1999/22169 filed on 24 March 1999, pursuant to Section 82 of the Planning and Environment Act 1987 ("the Act"), Mrs Barbara Heilemann and others sought a review of a decision of the City of Port Phillip ("the council") to grant a permit No. 1343/98/E to use and develop the property at 3 Albion Street, St Kilda ("the property"), as a rooming house. The applicant for permit was the St Kilda Housing Association Inc. ("the Association").

2. By Application for Review No. 1999/34135 filed on 5 May 1999, pursuant to Section 80 of the Act, the Association sought a review of part of Condition 1 of that proposed permit and Condition 8, in relation to on-site parking requirements.

3. The subject site is located on the north-western corner of the intersection of Albion and Somers Streets, St Kilda. Albion Street runs in an easterly direction off St Kilda Road. The land is flat and has a frontage to Albion Street of some 32m; and a sideage to the western side of Somers Street of some 41m. The land is developed with a double storey Edwardian building ("Edwardian building") apparently originally constructed as a single dwelling, and a large triple storey brick building of more recent origins ("main building") with associated outbuildings, including a single garage. The main building was constructed for use as a hostel. It sits close to the site frontage. The Edwardian building is set behind a conventional front garden. It too has been used in recent years for communal housing. Three on-site car parking spaces are provided at present: two in tandem with access from Albion Street, and one at the north eastern corner of the site with access from Somers Street.

4. A residential property abuts the site to the north and a right-of-way abuts the site to the west. Surrounding development is predominantly single-storey detached dwellings. There is a pedestrian access from the eastern end of Albion Street by means of a right-of-way to Ripponlea Station and shops along Glen Eira Road. The streets to the north of Albion Street give access to shopping along Balaclava Road.

5. We were also advised at the hearing that a permit application has been lodged with the City of Port Phillip in respect of the properties at 38 - 40 and 40a Brighton Road which are to the west of the subject land separated by the right-of-way. The properties at 38 - 40 and 40a Brighton Road are owned by Mr and Mrs Davey, who are objectors in these proceedings. It would appear that the application is to construct 13 units and eight townhouses.

6. It is proposed to refurbish the Edwardian building and use it for ten self-contained bedsits. The main building would also be refurbished and used as a rooming house (with lift access) providing three, one bedroom flats and 29 rooms. Communal bathrooms, kitchen/dining and lounge room facilities would be provided on each floor. A total of 42 units of accommodation would be provided. The external walls of the buildings would be largely unaltered except for some minor window and doorway changes at ground floor level.

7. In the application as originally lodged with the Council six on-site parking spaces were proposed: three tandem pairs. However, by the time of the review hearing, the parking provision had been amended to four on-site spaces, all non-tandem. Access to two of the spaces is proposed from Albion Street, and the other two from Somers Street.

8. It is proposed that the people to be housed in the property ("tenants") would be long-term residents of the City of Port Phillip who are income and asset eligible for public housing and in need of secure accommodation. They would be of mixed gender and age although preference would be given to persons who would benefit from the lift service (for example the aged and mobility impaired). The accommodation would be for medium to long-term tenure only with no budget/overnight or casual accommodation provided.

9. No live-in manager is proposed for the housing. It is further proposed, however, that the Association's staff would attend the property two to three times per week although attendances could be more frequent if required. Staff would be available at short notice to attend the property 24 hours per day. In addition, cleaners, gardeners and other trades people are proposed to be employed as required.

10. The property is owned and the use will be managed by the St Kilda Housing Association Inc.

11. The Association was incorporated in 1986. It is a non-profit community housing manager which holds public benevolent institution status with the Australian Taxation Office. Its main purpose is to facilitate the provision of low cost housing for low income and disadvantaged people in the City of Port Phillip. To this end it has been managing community housing in the City of Port Phillip since its incorporation. In April 1999, approval was granted by the Director of Housing for a long-term community housing fund of $500,000 for the development of the property.

12. It was the uncontested evidence of Ms Karen Barnett, the executive officer of the Association, which we accept, that the Association has tenancy and property management responsibilities for 182 units of low cost accommodation in the City of Port Phillip. This accommodation is a mixture of rooming houses, family town houses, older persons units and single person one bedroom units.

13. The property was purchased by the Association from the Returned Soldiers League War Veterans Homes Trust of Victoria ("Trust") in 1998. It was first used by the Trust as a hostel for nurses who had returned from service after the end of World War II, and was subsequently used to accommodate returned service women and later the widows of returned male veterans. From 1991 male veterans were also permitted to reside on the premises. Immediately prior to the Trust vacating the site in September 1998, the use of the premises was classified as a Resident Aged Care Facility providing low care services pursuant to the Aged Care Act 1997 (Cth). Prior to this the property was classified as a hostel under the Aged and Disabled Persons Care Act 1954 (Cth).

14. Following acquisition of the property by the Association, on 29 July 1998, the Association lodged application for Planning Permit No. 917/98/E with the Council to use part of the premises for the purpose of a "rooming house". The application was advertised and a total of 63 objections were received.

15. On 26 October 1998, the Association lodged a further application for a Planning Permit No. 134/98/E (the subject application) in which it sought to use the property as "a residential building". At the same time, it withdrew its application for planning permit 917/98/E. At about this time, the Association had received legal advice that the use proposed did not require a planning permit as such a use was a continuation of an existing use of the site pursuant to the Port Phillip Planning Scheme.

16. Council required that notice of application for the planning permit 1343/98/E be given under Section 52(1A) of the Act by certified mail to owners and occupiers within the immediate neighbourhood and by the placement of two public notices on the site to both the Albion Street frontage and Somers Street frontage. There were 45 objectors to the proposal including Mr Davey and Mrs Painter.

17. On 12 October 1998, by Application No. 1998/80594, the Council applied to the Tribunal for a determination under Section 149A of the Act as to whether a permit was required for the use of the property as a rooming house. That application was later withdrawn on 27 May 1999.

18. On 3 March 1999, the Council issued a Notice of Decision to Grant a Permit No. 134/98/E. The permission was described as:

"To develop and use the land for the purpose of the refurbishment of the 1920s 2 storey house into 10 self-contained bedsits and 1950s 3 storey hostel into a rooming house (with lift access) providing 3 one bedroom flats and 29 rooms. Communal bathrooms, kitchen/dining, loungeroom and laundry facilities will be provided on each floor. In all, 42 units of accommodation in accordance with the endorsed plans and subject to the following conditions ..."

A number of conditions were attached to the notice.

19. An application for review of the decision was then lodged with the Tribunal by Messrs McMahon Fearnley, solicitors, on 24 March 1999 on behalf of "Barbara Heilemann and Others (see the attached schedule)". The schedule attached to the application contained the names of some 63 people ("the objectors"). The grounds for the review were as follows:

"1. Insufficient on-site car parking has been provided for the proposal and as evidenced in the plans accompanying the application.

2. The proposal will give rise to unreasonable off-site amenity impact by reason of:

(c) substantial overlooking of adjoining and nearby residential properties; and

3. Given the intensity of residential use as countenanced in the proposal, the amenity that will be enjoyed by residents of the proposal will be substantially compromised by reason of:

(i) insufficient floor area for each of the proposed residential units;

(ii) an unsatisfactory level of private open space for the intended residential occupants;

(iii) an unsatisfactory provision of private amenity areas and facilities for intended residential occupants and intended visitors.

4. The documentation accompanying the application for permit does not specify or include an overall management plan for the proposal which is, prima facie, a fundamental prerequisite for the proper management of the intended land use.

5. The proposed intensity of residential occupation of the land gives rise to overdevelopment of the site and accordingly is contrary to sound town planning practice.

6. Were the proposed use assessed against each Element of the Good Design Guide for Medium Density Development, substantial non-compliance is evidenced.

7. The proposed use will give rise to on-site and off-site amenity impacts by reason of on and off-site car parking, traffic generation and ingress and egress to the site.

8. The proposed intensity of residential occupation will give rise to unacceptable levels of noise emission which will be detrimental to the residential amenity of adjoining and/or nearby residential properties.

9. The proposed use, as evidenced in the documentation accompanying the application for permit is indeterminitive of the sociological composition of future intended occupants and the facilities specifically provided for such residential occupants, and accordingly is, prima facie, incompatible with the nature and character of surrounding and/or nearby residential properties."

20. On the 5th May 1999, the permit applicant lodged Application 1999/34135 with the Tribunal seeking a review of Condition 1 of the Notice of Decision to Grant a Permit to the extent that it relates to the number and location of on-site car parking spaces; and Condition 8 which requires the provision of an additional two on-site parking spaces. The applicant for permit's grounds for review were:

"1. Five car parking spaces only are required for the proposed use.

2. These car parking spaces can be located on the site at locations which will allow a better use of the balance of the site."

21. By letter dated 5 May 1999, Messrs McMahon Fearnley advised the Tribunal that ten of the objectors wished to withdraw their objection. By letter dated 11 June 1999, Messrs McMahon Fearnley advised the Tribunal that it no longer acted for the objectors and that all further correspondence should be addressed to Ms Helen Milovanovic. Ms Milovanovic was not one of the people included in the names of objectors. By letter dated 17 June 1999, Ms Heilemann informed the Tribunal that she withdrew her objection. At about the same time, Ms Milovanovic informed a Tribunal officer that she did not wish to receive correspondence on behalf of the objectors.

22. On 17 June 1999, the Registrar of the Tribunal wrote to each objector informing them the Tribunal no longer had an address for service. The Registrar also advised the objectors in relation to the hearing of the matter and requested notification of their grounds of objection in relation to Application No 1999/22169 and whether they wished to provide a statement of grounds in relation to Application No 1999/34135. Subsequently, 10 objectors withdrew their objection to the proposal.

23. At a directions hearing on 25 June 1999, the Tribunal granted the Association a speedy hearing. The Tribunal also ordered that both applications for review be heard together.

24. On 9 July 1999, the Registrar sent a letter to each of the objectors named in the schedule informing them of the hearing date of the applications for review. Subsequently, 10 further objectors withdrew their objections. On 15 July 1999, the Tribunal received a letter from Mr Davey on behalf of himself and Mrs Davey advising that they had lodged objections to the Association's application for a planning permit and that they sought leave to become applicants for review in the proceedings before the Tribunal. Mr Davey also sought an adjournment of the hearing. On 16 July 1999, the Tribunal received notices of objection in respect of the conditions review (proceedings numbered 1999/34135) from two objectors.

25. By letter dated 26 July 1999, the Council advised the Tribunal that although Mr Davey and also Mr Russell Gilmour lodged an objection with the Tribunal in relation to the proposal, their names were not included in the list of objectors forwarded to the Tribunal. On 28 July 1999, the Registrar sent a letter to Mr Gilmour notifying him of the proceedings and the date fixed for hearing. Mr Gilmour was requested to contact the Tribunal in relation to the matter. On or about the same date, an officer of the Tribunal attempted to telephone Mr Gilmour but he was not available. The Tribunal officer left a message for Mr Gilmour to ring her the next morning. However, Mr Gilmour made no contact with the Tribunal.

26. When the hearing commenced on 2 August 1999, there was no appearance by Mr Gilmour. A Tribunal officer rang Mr Gilmour to ascertain whether he intended to be heard in relation to the proposal. She was informed however that he was out of the country for six months. During the course of the hearing, we informed the parties that we were of the view that Mr Gilmour should be offered the opportunity to make submissions to the Tribunal. The hearing was adjourned to 23 August and we ordered that any submissions upon which Mr Gilmour relied should be filed and served by 23 August and that Mr Gilmour should advise the Tribunal if he opposed the proposal whether he intended to be represented at the further hearing. On 3 August 1999, the Registrar of the Tribunal informed Mr Gilmour of these directions. When the hearing resumed on 23 August 1999, there was no appearance by Mr Gilmour and he had not filed any written submissions.

27. On 2 August 1999, after the hearing commenced, Mr Malcolm Teasdale and Mr Peter Davey were joined as parties to the proceedings. Mr Davey appeared for himself, Mrs Amanda Davey, Mrs Shirley Painter and Mrs Gallagher all of whom attended the hearing. He informed us that he also appeared for 40 other residents. However, he did not advise us of the basis of his instructions to appear for them and in those circumstances and in the absence of notification from any of the 40 residents that they had requested Mr Davey to appear, we took him to be appearing only for himself and the earlier named persons. Mr Teesdale appeared for himself and Mrs Mary Teesdale.

28. During the course of the hearing, the Association called evidence from its Chief Executive Officer, Ms Karen Barnett; Mr Michael Durkin, a traffic engineer of Greg Tucker and Associates Pty Ltd; and Mr David Whitney, a town planner of Perrott Lyon Mathieson. At the completion of the hearing, the Tribunal made orders for the filing of written submissions by the parties. Subsequently we carried out an inspection of the property and the surrounding area.

29. The property is in a Residential 1 Zone under the Port Phillip Planning Scheme. One of the purposes of that zone is stated in Clause 32.01 as being:

"To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households."

Under Clause 32.01-1 "Accommodation" (other than Dependent person's unit and Dwelling) requires a permit.

30. The definition of "accommodation" includes "residential building", which in turn includes "boarding house" in the nesting diagram set out in the Scheme. We are of the view that the application meets all of these definitions.

31. Clause 32.01-4 of the Scheme requires the assessment of various residential applications including those for residential buildings, against the Good Design Guide for Medium Density Housing. The Guide is principally directed, in our view to privately owned medium density dwellings. Therefore, any assessment of a residential building against the Guide must be tempered by consideration of the communal nature of the housing. Consideration of other community housing standards as referred to later in these reasons, is also appropriate.

32. Clause 32.01-5 of the Scheme also imposes the need for permission for buildings and works associated with a Section 2 use.

33. The property and surrounds are also included in Heritage Overlay No 7. Clause 43.01 sets out the purposes of the Heritage Overlay which include :

"* To conserve and enhance heritage places of natural or cultural significance.

* To conserve and enhance those elements which contribute to the significance of heritage places.

* To ensure that development does not adversely affect the significance of heritage places".

Pursuant to Clause 43.01-1 a permit is required to externally alter a building by structural work or construct or carry out works. Particular matters for consideration are set out at Clause 43.01-5. The external works proposed are minor and do not conflict with the purpose of the overlay. Heritage effects were not at issue in the proceeding.

34. General guidance to the exercise of discretions under the Planning Scheme is provided by Clause 65. It provides that consideration is to be given to various matters including the State and Local Planning Policy Framework, the orderly planning of the area, the purpose of the zone, overlay or other control, and the effect of the proposal on the amenity of the neighbourhood.

35. That Clause in turn refers to the components of the Local Planning Policy Framework in which comprise the Municipal Strategic Statement as set out in Clause 21 and relevant local planning policies at Clause 22.

36. The MSS at Clause 21 of the Scheme sets out the Council's strategic planning objectives. Clause 21.02-1 sets out the objectives of the MSS in respect of residential land use. They include the following :

"* A high level of amenity for residents - including adequate open space, privacy, sunlight and daylight, parking and transport options.

* A stable residential population level by encouraging residential development in areas identified as having opportunities for residential growth ... and other major sites. ...

* A city which retains its residential flavour, especially by protecting residential properties and streetscapes which are significant for their heritage or character.

* A range of housing types to suit the diverse needs of the Port Phillip's community and to provide reasonable access to low-cost housing for low-income households".

"The City of Port Phillip plays a significant role in the provision of rooming house accommodation to meet the needs of single people in the State, many of whom are marginalised and disadvantaged. There are currently 85 public and private rooming houses in Port Phillip of which 55 are private, accommodating an estimated 1284 persons. Part of Council's Housing Strategy is to support the continued operation of private rooming houses. In addition, the Council encourages the maintenance or new provision of private rooming houses. As a direct housing provider, the city has provided 181 dwelling units since 1985, of which 42 rooms are in rooming houses.

There is a broad range of crisis and emergency accommodation provided by various community housing agencies within the municipality, making a substantial contribution to this type of accommodation within the State".

38. Clause 21.02-1 under the heading "Residential land use" states as follows :

"Port Phillip is home to many different cultures, families and individuals, all living closely together and all with their own particular needs. It is important that the range of housing choices, facilities and services available in the city reflects the diversity and needs of its people".

Under the heading "What do we want to achieve", a number of objectives are stated including :

"* A range of housing types to suit the diverse needs of the Port Phillip community and to provide reasonable access to low-cost housing for low-income households".

Under the heading "How will we achieve it?", the following statement is included :

"* By encouraging and facilitating private, public and community sector involvement in the provision of housing to ensure that a range of housing choices is available".

39. Clause 22.09 contains local housing policy for the municipality. It states in part as follows :

The City of Port Phillip adopted a Housing Strategy in May 1997. The fundamental purpose of this Strategy is to encourage `housing diversity which contributes to the maintenance of social diversity, and to achieve this by the facilitation of affordable, accessible and suitable housing which meets the needs of all groups within the community, in particular those which are disadvantaged within, or unable to adequately access the private housing market'.

The Strategy identifies a number of trends which have potential to reduce the diversity and affordability of housing, such as the continued redevelopment of detached houses which currently comprise only 17% of the total dwelling stock in Port Phillip compared with a metropolitan average of 78%. On this basis, the Strategy concludes that it is important that planning controls and policy should aim to support the broad vision and objectives described above.

The Municipal Strategic Statement supports the objectives of the Strategy and aims to provide a range of housing that meets the diverse needs of the municipality.

* To provide a range of housing types to suit the diverse needs of Port Phillip's community.

* To encourage the provision of purpose built rooming houses or building conversions for rooming houses.

* To provide reasonable access to low cost housing for low income households.

It is policy that the following matters be taken into account when considering applications for new residential use and development :

* Buildings registered as rooming houses should not be converted to private dwellings. Redevelopment may be permitted if it is proposed to retain some form of affordable low income housing as part of the development".

40. Clause 22.09 of the Scheme also refers to the City of Port Phillip Housing Strategy May 1997. The following extracts and summary are drawn from Mr Whitney's report:

"The Housing Strategy covers private residential use and development, public housing, community housing, residential care and home ownership. The Mission Statement contained in the study is:

"To provide housing diversity which contributes to the maintenance of social diversity, and to achieve this by the provision and facilitation of affordable, accessible and suitable housing which meets the needs of all groups within the community, in particular those which are disadvantaged within or unable to adequately access the private housing market."

The Council's Heritage Objectives include achieving:

"1. A municipality which continues to be a desirable place to live in.

2. A range of housing types to suit the diverse needs of the Port Phillip Community.

3. A city which retains its residential flavour and protects heritage and character.

4. A stable residential population through urban conservation initiatives targeted in appropriate areas.

5. Reasonable access to low-cost housing for low-income households.

6. Design excellence for new residential properties."

It would appear that the emphasis placed on ensuring adequate provision of alternate accommodation for low-income people, stems from the increasing number of closures of rooming houses within the municipality. The increased closures of existing facilities will, the study suggests, result in increased levels of homelessness. Port Phillip has 85 rooming houses providing 1510 beds. Of these, 55 are private and 30 are publicly owned rooming houses, ie those owned by the State Housing Authority (29) or Council (1). Of these, 76% are located in the former local government area of St Kilda. The Study reports that St Kilda has about 20% of the State's rooming houses and further that Port Phillip's rooming houses possess a resource of State significance."

41. Clause 52.06 of the Scheme which deals with car parking is also relevant to this application. Clause 52.06-6 requires that before the use begins one on-site car parking space must be provided for each lodging room in a "Residential building". This would result in a requirement for 42 on-site spaces. Clause 52.06-1, however, states that "a permit may be granted to reduce the number of car spaces required or to waive the requirement". Clause 52.06-1 under the heading "Decision Guidelines" states that:

"Before a requirement for car spaces is reduced or waived, the applicant must satisfy the responsible authority that the reduced provision is justified due to" (there is then set out a number of matters including -

* the availability of car parking in the locality

* the availability of public transport in the locality

42. Mr Davey argued that the permit should not be granted on the basis that amenity concerns for both tenants and residents of the neighbourhood had not been adequately addressed. Mr Teesdale did not oppose the granting of a permit. However, he sought a number of amendments to the permit conditions. As indicated earlier, the Association sought a review of conditions relating to carparking. In summary, the issues in this review relate to car parking, amenity for the tenants of property (including the number of tenants to be housed in the property, management of property and sufficiency of recreation space), and amenity of the neighbourhood (including overlooking, increased traffic and noise). We now set out in detail each of the issues for determination by the Tribunal.

Off-site Amenity Impacts from Intensification of Use

43. It was conceded by Mr Davey that the proposal may be permitted under the Scheme. However, he argued that the nature of the use proposed would be quite different to the prior use of the property in that there would be a significant increase in the occupancy levels for the accommodation from 50% usage to 100%, and a major change in the type of resident, from persons requiring aged care to persons who are younger, more socially active, more mobile and more likely to engage in activities capable of negatively impacting on the amenity of local residents. In support of his submission, he provided a report which he had compiled as a result of enquiries he had made from several people who had been employed by the Trust. Mr Davey submitted further that the perceived need for the type of accommodation proposed did not justify the abandonment of good planning practice. In this regard, he submitted that the same residential amenity could be enjoyed in other areas where "adverse impacts are lower". Further, there was no demonstrated need for the development in the particular area where it was proposed.

44. Mr Teesdale also submitted that the proposal entailed a significant increase in the numbers to be accommodated on the site and the proposed tenants would be more mobile than those previously housed. On that basis, there would be a significant increase in movement of people and vehicles with nuisance potential in a quiet residential neighbourhood.

45. Dealing first with Mr Davey's submission of a 50% increase in usage, Ms Maureen Walker, Chief Executive Officer of the Trust stated in a letter dated 17 August 1999 addressed to the Tribunal, that the property had Commonwealth approval for 36 residents. In her letter she provided details of occupancy levels between January 1995 and June 1998 when the hostel closed. The figures which she provided indicate that the monthly occupancy rate figures between January and June 1998 were between 25 and 28 people. In 1997, the hostel housed between 27 and 34 people in any one month. Whilst it is not clear whether the hostel comprised only the main building (and not the Edwardian building), the figures provided by Ms Walker do not indicate a significantly lower rate of occupancy. We do not believe therefore that adverse amenity impacts will arise by virtue of an increase in number of occupants alone. Further, whilst there may be a change in the type of resident who will occupy the property, the evidence does not establish that the proposed tenants will be more likely to engage "in activities capable of negatively impacting on the amenity of local residents" as asserted by Mr Davey. In these circumstances, we see no reason why this type of use cannot be located in this particular neighbourhood. Further, we see no reason why the achievement of the clear policies for low income housing are inappropriate in Albion Street.

46. Condition 1 of the permit conditions sets out the following provisions in relation to carparking :

"* The provision of 6 on-site carparking (no tandem) with suitable dimensions and vehicle manoeuvring.

* The deletion of the 2 sets of tandem parking arrangements off Somers Street.

* The deletion of the encumbered tandem carspace shown at the Albion Street frontage; leaving one carspace.

* The inclusion of a carparking area shown at the rear of the premises to have 4 car spaces with an acceptable turning circle to ensure that cars can drive out of the site in a forwards motion.

* The driveway to the car spaces having a minimum width of 3.0m.

* The driveway having a 1m minimum clearance to the street tree in Somers Street.

* The demolition of the rear garage/shed sufficient to implement the on-site car parking scheme outlined above.

* A suitable fence set back a minimum of 0.5m from the title boundary to effectively screen the new car space of the main drive in Albion Street.

* A suitable fence (as needed) to effectively screen the car park area located off Somers Street".

"7. Residential parking permits will not be issued to residents in this property beyond the number which can be accommodated within the frontages of the property.

8. Within 4 months of the rooming house being occupied to the level of 85%, a further 2 off street carspaces shall be provided off the existing driveway at the rear of the site should the need be determined by Council following a survey of the cars generated on-site and on-street parking. This determination shall involve consultation with both the Body Corporate managing the premises and also residents in the near vicinity".

47. It was contended by Mr Barlow who appeared for the Council that application of a parking ratio relevant to a boarding or rooming house should be applied to this proposal. No ratio is specified in the Good Design Guide for such a use. The Scheme allows Council to apply between 0 and 1 space per lodging room. We were advised that a Council survey conducted in 1997 of some 10 rooming house sites identified that the average ratio of cars per tenant within the municipality was one space per 8.5 tenants. In accordance with this car parking rate, the subject site would require a total of five to six car spaces for the proposed 42 persons. It was submitted by Mr Barlow that there was substantial availability of public transport in the locality and off-site parking was available along the frontages to Albion Street and Somers Street. On this basis, he said six car parking spaces would adequately accommodate the car parking demand for the proposed use together with the additional four on-street spaces adjacent to the site.

48. It was further contended for the council, however, that, as not all of existing dwellings in Albion Street have adequate available on-site car parking provision, still fewer in Somers Street and in Brunning Street into which Somers Street leads, the car parking should not be further reduced to five spaces as submitted for the applicant.

49. Mr Barlow also advised that the Council had found the proposed tandem layout of six on-site spaces unacceptable, and instead proposed leaving a single space at the Albion Street frontage and creating a parking area with reversing lane adjacent to the north-east corner of the site. That area might ultimately accommodate seven vehicles if required.

50. The permit applicant relied upon the oral and written evidence governing car parking given by Mr Durkin, a traffic engineer, dated 2 August 1999. In his written report, Mr Durkin said that he had obtained recent car ownership data for Community Managed Rooming Houses throughout Melbourne. He said the data had been compiled from 49 rooming houses (759 rooms) in Melbourne, equating to 70% of all community rooming house stock in Victoria. He summarised the data as follows :

He said that application of these rates to the development proposal suggested the following resident parking demands:

51. He said that on the basis of this empirical data a proposed provision of four on-site resident carparking spaces was adequate in providing for the likely resident parking demands generated by the site.

52. Ms Barnett said in evidence that the Association could limit to nine the number of tenants who have cars at the property.

53. Mr Durkin also provided advice on visitor car parking demands. He said the specific guidance on the provision of visitor parking for community housing developments was provided by surveys undertaken at a comparable Community Housing Facility in Tennyson Street, Elwood. The surveys were undertaken over a weekend period in May 1999, and a peak visitor demand of 2 vehicles was recorded, equating to 0.10 cars/units. Application of this rate to the development proposal suggested a peak visitor demand of 4 spaces. He said that a reliance could be placed upon the unrestricted parking areas in Albion Street and Somers Street for visitor parking. In his view, such an arrangement was appropriate given the demand was only expected to be minimal and could easily be accommodated by on-street vacancies and six on-street parking spaces directly abutting the site could be credited to the development.

54. In respect to accommodating other vehicles, such as delivery vans and the like, he said that on-street parking would be used. However, it was his view that such an arrangement was acceptable given that the occurrence of such events could be expected to be minimal and at periods when parking demand was not at its peak (ie during the day). He said that to design for such an infrequent situation would impose an extreme design standard which would represent an inappropriate constraint on the development. He said design standards by convention typically accommodate the peak repeatable or the 85th percentile situation rather than to accommodate all eventualities.

55. It was submitted by Mr Cicero for the Association that therefore the revised parking provision of four spaces was sufficient and that Mr Durkin's evidence indicated that no review of the car parking space requirement contemplated by Condition 8 was warranted.

56. It was argued by Mr Davey the Council has failed to comply with the planning standards contained in the scheme and the Good Design Guide and has based its decision in relation to car parking requirements on a survey conducted in 1997, which he argued was flawed. He submitted that there was no evidence of any studies as to existing traffic patterns in the area and noise generation and the impact the proposal could have on the area. He said the Council's assessment of car parking needs of tenants appeared to rely on unsubstantiated tabulation of parking at other premises. In relation to the evidence of Mr Durkin he argued that the sample surveys were inaccurate or insufficient and car ownership levels reported had not been related to the supply of spaces, size of hostel etc.

57. At the hearing, it was submitted by Mr Teesdale that the parking provision required by the Council was appropriate. In a written submission filed with the Tribunal on 3 September 1999, he further stated that if the application for a permit to construct units and town houses at 38-40 and 40a Brighton Road was granted, there would be additional pressure on parking in Albion Street and the surrounding area.

58. In relation to this matter of on-site parking provision, we accept the evidence given by Mr Durkin, that resident and visitor parking demand will be at very low levels as found in his empirical research. We accept that Mr Durkin's research is at a sufficient level of accuracy to reliably indicate this demand. We believe that it is appropriate to apply the results of that research in determining to reduce the Planning Scheme requirement. We believe that the research gives a more accurate picture of parking demand than simply applying the Good Design Guide standard.

59. Even if the maximum parking demand ratios revealed by Mr Durkin's surveys are applied to the proposal, the maximum number of spaces required, on and off street, would be nine. We do not believe, therefore, that the consequences for reduced on-street parking space availability are so severe as to warrant refuse of this application which is so clearly in accordance with Scheme policy. We believe, however, that it would be appropriate to include a condition on any permit granted is designed to regulate car ownership levels as generally suggested by Ms Barnett, viz:

"The occupancy of the site must be managed to the satisfaction of the Responsible Authority, in such a way that the number of cars or trucks owned or driven routinely by occupants of the site and which are parked in Albion or Somers Street, does not exceed six."

60. We also are of the view that the evidence is such, that the provision of more than four additional on-site parking spaces is not warranted, especially in light of the fact that it would significantly erode the valuable area of northern oriented open space available to residents.

61. We also are of the view that Condition 7 can be deleted in light of the condition limiting off-site parking demand. Further, we do not believe it is appropriate to retain Condition 8, as we are satisfied that off-site demands can be controlled.

62. Another issue in the proceeding was whether the management arrangements proposed would be adequate to ensure no significant amenity impacts for neighbours especially in terms of noise, and maintain appropriate standards on site.

63. The following permit conditions were imposed by the Council in relation to the management of the property :

"4. For so long as these premises operate as a rooming house, it shall at all times, to the satisfaction of the responsible authority, be owned and/or managed by a body corporate that has a specific charter in community housing.

9. The management shall, as required by the Responsible Authority, make statements on its behalf to any officer of the Responsible Authority concerning the conduct of the premises.

10. Upon registration residents shall be provided with a list of the most up to date house rules and management charter (as from time to time amended).

19. Within 1 month of the commencement of this permit the owner of the site shall set up a management charter for the site (including `house rules') and this shall be clearly displayed in prominent locations within the building for residents to clearly read.

20. A 24 hour, 7 day a week phone `hot line' shall be made available for abutting and nearby residents to call a representative of the owner (managers) to record any concerns and seek a timely management response".

64. It was submitted by Mr Teesdale that a manager should reside on the property "to ensure that the proposed accommodation is as safe, stress free and dignified as possible", and to protect neighbours from potential nuisance and harm. He submitted that tenants will be socially and economically disadvantaged and that such disadvantage will impose various stresses. The combination of stress, the proposed number of tenants, the small rooms and limited recreation areas created the potential for conflict amongst tenants, he said.

65. In a written statement of evidence provided to the Tribunal, Ms Barnett said that the Association has had 28 after hours call-outs in the past 12 months for 41 rooming house rooms: 50% of these were maintenance related and 12 were lockouts. The remaining two calls were from residents concerned about their neighbours' well being. She said that it was her view that the property did not need an overnight manager. She said none of the rooming houses in Victoria have an overnight manager. She conceded that the largest shared housing project managed by the Association (in Tennyson Street) contains only 20 tenants.

66. We accept Ms Barnett's evidence that an overnight supervisor is not required at the property. She has had 13 years of experience in managing rooming houses and, in our view, the conditions of the permit are adequate so far as they relate to management issues. It is relevant in this regard that all tenants must be able to live independently at the property. The fact that a manager resided on the property when it was operated as a hostel is, in our view, irrelevant. The hostel housed people who required a supervised or assisted living environment unlike the tenants who will live in the property under the current proposal. We consider however that a further condition should be included in the permit requiring a telephone to be installed on each floor of each of the buildings. This will enable tenants to telephone the Association or police in the event an emergency arises

67. Further, it was accepted that a condition might be imposed on the permit granted that the property be managed in such a way that long and medium term tenancy is encouraged and occupancy restricted to persons income and asset eligible for public housing. A management plan to deal with garbage disposal and other such matters could be required to be prepared to the satisfaction of the Responsible Authority.

68. It was submitted by Mr Davey that there was an unreasonable degree of overlooking of nearby houses. He said the overlooking would be significantly increased by the change of use from aged care hostel to rooming house and the fact that this change of use was likely to result in a 50% increase in the occupation rate.

69. Mr David Whitney, town planner, gave evidence for the Association and his report dated 15 July 1999 was tendered in evidence. At page 9 of his report he stated :

"Each bedroom/bedsit/apartment is provided with a window, ensuring internal amenity to residents. Only two windows are located in the north elevation, at first and second level. I consider that these windows will not result in unacceptable or unreasonable overlooking because of the distance between the windows and the adjacent open space; the siting of an outbuilding and driveway on the common boundary; and, because both windows belong to `bedrooms', where it can reasonably be expected that leisure time of these residents will be spent in the common living facilities. In addition, the two windows already exist".

70. Our inspection of the property indicated that there is some overlooking possible from the north facing windows of Rooms 101 and 201. There is also an oblique view from Room 201 to the east. We accept Mr Whitney's evidence however that the overlooking from these windows would not be unacceptable or unreasonable. Further, the insertion of obscure glass or a higher sill height would have a detrimental effect on occupants of rooms and would be inappropriate. Further, while we propose that Unit 101 be deleted for the reasons given later, and the north facing window in this location would become associated with the corridor, we equally feel that overlooking from the corridor would not be an unreasonable invasion of privacy given the location of the window at the end of the corridor and therefore not routinely passed by residents. We also reject Mr Davey's submission that overlooking would be significantly increased having regard to our earlier findings in relation to increased occupancy. Further, we believe that the distance to private open space areas to the west, intervening buildings, fencing and vegetation ensure adequate levels of privacy for existing dwellings. Should these properties be redeveloped and open space areas be included closer to the subject land, the opportunity exists for that development to incorporate its own features ensuring privacy.

71. Mr Davey submitted that the increased traffic generated by the change in nature of the accommodation and occupancy rate would adversely affect the amenity of the area in terms of increases in noise and traffic, particularly if tenants and visitors to the property utilised on-street parking.

72. It was Mr Durkin's evidence that on the basis of his assessment of car ownership and visitor data, it was estimated that the site was likely to generate in the order of only 40 vehicle movements per day (assuming six vehicle movements per day per resident car, plus 0.38 vehicle movements per unit for visitors). At page 7 of his report he said :

"In respect to the traffic impact of the proposed development, and the resultant impact on the surrounding road network, it is noted :

(i) Against existing traffic levels, the additional traffic likely to be generated by the development could not reasonably be said to compromise the traffic functioning and safe operation of Albion Street, Somers Street and the adjoining road network;

(ii) The use of these roads by vehicles accessing residential uses is entirely appropriate and consistent with their functional designation as `local streets'."

73. We accept Mr Durkin's evidence in this regard. In our view the traffic consequences of this development having regard to anticipated car ownerships/access levels, would be minimal.

74. Mr Davey submitted that there was no adequate control mechanism to ensure that noise emanating from the proposal and from tenants and visitors entering, leaving and enjoying the open spaces will in fact be controlled.

"12. The open areas at the front and side of the property shall not be used for any noisy activities by residents".

"13. The amenity of the area shall not be prejudicially affected by the emission of noise from the premises, or by other means, including but not restricted to any of the following :

* transportation of materials to and from the site

"22. No permanently fixed sound amplification equipment, juke boxes or loud speakers shall be used for the purpose of announcements, broadcasts, playing of music (whether recorded or otherwise) or similar purposes (so as to be audible on adjoining public or private land). No music from any mechanical or electrical source (including musical instruments) shall be played on the premises which is audible from adjoining residential properties".

75. In our view these conditions are appropriate to control noise and are framed in such a way that they might readily be enforced.

76. It was submitted by Mr Teesdale that there should be a reduction in the maximum number of tenants to be accommodated in the property "so as to both minimise any detrimental effects on the neighbourhood and facilitate the provision of more dignified facilities (internal and external recreation areas) for the tenants". He submitted that Condition 5 while it sets a maximum number of 42 beds by not specifying single or double beds, permits a theoretical occupancy of as many as 84 tenants. Mr Teesdale also submitted that there was not sufficient outdoor recreational area for the proposed number of tenants and their visitors. Further, the car parking proposals all impacted to some degree on the available outdoor space. He said it was not possible to provide the required on-site parking for tenants without reducing or eliminating the outdoor recreational area that currently existed.

77. It was also submitted by Mr Teesdale that additional lounge space was required on each floor to provide adequate common living facilities and to offer a choice of lounge so as to avoid forced companionship which might lead to friction. He submitted that the dimensions of the proposed bedrooms in the main building of approximately 3 metres x 3.5 metres would be adequate only where suitable common areas were provided.

78. Mr Davey submitted that given the dimensions of the bedrooms and the minimal area provided for communal indoor space, tenants would be forced to use outdoor recreation areas and other areas outside the property. He submitted that the liveability of the proposed development was of concern in so far as the amenity of tenants was concerned given the size of the rooms, the proximity of the rooms to each other, limited communal recreation areas, limited open space and limited parking space. He submitted further that the site afforded a total communal area of approximately 390m2. This represented approximately 9m2 per person. While, this compared favourably with the Good Design Guide requirements for balcony areas for flats (8m2), he said, this overlooked the fact that the Good Design Guide required an 8m2 balcony in addition to the open space required at ground level.

79. Mr Cicero indicated, however, that the Association would agree to amend condition 5 so that it provided that only 42 tenants may be accommodated in the property at any time.

80. In our view, the proposal including its open space and communal lounge areas, and bedroom size, provide an adequate standard of accommodation for 42 tenants. We accept the invited post hearing submissions by the permit applicant in this regard, especially in so far as requirements exceed those in the Allocations Policy Procedures Manual of the Department of Human Services. That document, in our view, sets the appropriate standards for housing of this type and should be given weight in this matter in preference to Good Design Guide standards. We nevertheless indicate that we do not agree with Mr Davey that that Guide's 8sq m balconies are additional to ground level open space. The E9.T1 suggestion for open space provision are set out as alternatives. We do say, however, that we believe that the Good Design Guide objectives at E9.O2 and E9.O3 are met by the proposal. This is not a case like Application for Review 1998/66207 Michael Barnett v City of Frankston and Milne and Anor editorialised in 2 VPR 8, where the standard of low income housing was rejected on the basis of very poor amenity for future residents. In the present case the smallest private accommodation units are limited in size, being only 10-12sq m rooms, but each room has an outlook, and the tenants would have access to a well oriented and attractively landscaped open space area, as well as a number of internal communal living spaces.

81. We do not believe that there is any gain (when assessed against the loss of accommodation units) by the provision of an additional lounge or lounges on each floor of the main building. If social frictions do occur between tenants they can be resolved by resort by one party to the kitchen rather than lounge area on their floor, to another floor of the building or to the open space area(s) in appropriate weather. Nevertheless, the deletion of Unit 101 as suggested in the following paragraph, offers the opportunity for a larger or separate lounge area on that floor.

82. We are of the view that on-site amenity could be improved by increased daylighting to the corridors of the main building. To this end, we will require glass doors to the communal living areas, skylights to the upper floor corridor, and deletion of Unit 101 in favour of a window to the Level 1 corridor. The remaining portion of Unit 1 is to be used as lounge room space.

83. For the above reasons, we believe that this proposal, which is squarely in accordance with the Council's policies for improved access to low income housing should be approved. We believe that the design (as modified by us) offers an appropriate level of on-site amenity for the future tenants, and the management arrangements proposed and/or which can be required by condition, together with the layout of the development, will ensure no significant adverse amenity impacts for neighbours. It is acknowledged that there will be some small additional demand for on-street parking by visitors to the site, as discussed earlier, but this will be minimal based on survey evidence and not be appreciably different from that associated with the former use of these buildings.