With respect to planning permit application no. WH 15120, the responsible authority's decision to refuse the grant of a permit is affirmed. No permit is granted.

Mr A Robertson, Planning Consultant with Ms J Stamkos, Town Planner.

Mr M W Friendship ; Dr P Johnson; Mr H Amos; Mr M J Pratt; Ms P Gallagher and Ms K Hyde

1 This was an application under Section 77 of the Planning and Environment Act 1987 against the Whitehorse City Council's decision to refuse the grant of a permit for the construction of a 3 storey multi-dwelling residential development at 5-7 Victoria Street Box Hill [the site].

2 The permit application[1], as lodged with the council on 26 November 2004, sought permission for the construction of 37 apartment style dwellings on the site.

3 The council required notice of the permit application to be given and in response it received 28 objections including a petition with 155 signatures. The grounds of objection raised concerns about the proposed density and level of development; consistency with local policy; neighbourhood character [excessive height and visual bulk, inadequate front setback, inappropriate materials and loss of vegetation]; and various adverse amenity impacts [noise, traffic, car parking, rubbish, overshadowing, loss of daylight, and overlooking][2].

4 The council decided to refuse the permit application on the 30 March 2005 on 6 grounds relating to the failure to comply with various objectives set out at clause 55; excessive scale and mass of the proposed buildings; inappropriate architecture that is not responsive to neighbourhood character; adverse effects on the amenity of adjoining properties; inappropriate internal amenity and overdevelopment.

5 The site is located on the west side of Victoria Street, between Rutland Road and Albion Road. The site comprises 2 adjoining lots each of which contains single storey dwellings. When combined, the 2 lots create a development site with a frontage of 40.08 metres, a depth of 74.37 metres with an overall area of about 2981 square metres. The site appears to be relatively flat; however, it falls by about 1.7 metres from its northeast front corner down to the southwest rear corner. There are about 40 trees on the site, of varying type and condition. Most of the larger vegetation is located around the side boundaries although there is a group of plants located along what is currently the common boundary between the 2 lots that comprise the site. The most notable of these include a large oak tree[3] located near the southwest corner, a Norfolk Island Pine near the Victoria Street frontage as well as several eucalpts.

6 The site's northern side boundary is partly opposite a "dual occupancy" development comprised of 2 single storey dwellings; 1 fronting the street with the other immediately to its rear. The balance of the site's northern boundary is in common with the southernmost section of a public park known as Victoria/Glenmore Chain. The site's southern boundary is in common with 3 residential properties occupied by medium density housing developments comprised of either single or double storey dwellings. Properties on the opposite side of Victoria Street are generally occupied by single storey dwellings, either as 1dwelling on a property or as part of a villa unit style of medium density housing. Single storey dwellings on properties fronting Rose Street exist to the rear of the site.

7 Contextually, the site is located within an established residential area with surrounding properties generally used for some form of residential development. Many properties along the length of Victoria Street have been redeveloped for medium density housing generally comprised of single storey dwellings. On my assessment, the site is located about 700-800 metres[4] from the eastern edge of the commercial part of the Box Hill Activity Centre which is nominated as a "Principal Activity Centre" under the metropolitan strategy Melbourne 2030.

8 At the commencement of the hearing Mr Pitt sought leave to amend the permit application by substituting amended plans.[5] The other parties offered no objection. I allowed the amendment under clause 64 in schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

9 The proposal, as amended, involves the construction of 34 dwellings within a 3 storey development over basement car parking. The existing buildings on the site are to be demolished.

10 The proposed dwellings are to be provided within 2 building forms both of which would largely sit over the basement level of car parking below.

11 The front building, which would provide for 15 dwellings, is to be setback a minimum of 6metres to Victoria Street, with a staggered front façade increasing the setback to about 7.6 metres in parts. The dwellings within this building would comprise either 1 or 2 bedroom apartments on 1 level; or 2 bedroom quasi "townhouse" style apartments that straddle 2 levels. Open space for these apartments would be in the form of ground floor courtyards or upper level balconies.

12 The rear building, which would provide for 19 dwellings, is separated from the front building by a centrally located communal open space that has a width of about 15 metres; and setback a minimum of 7.6 metres from the rear boundary. Dwellings within this building would comprise 2 bedroom apartments or 2 bedroom quasi townhouse style apartments that straddle 2 levels. The main open space for each apartment would be in the form of an elevated balcony/terrace area. The uppermost level of this building is setback from the line of the levels below and encased within a mansard roof form.

13 The architectural form of the building employs a mix of hipped, flat and mansard roofs.

14 Entry into the basement car park is via a ramp that is to extend from Victoria Street near the site's southeast corner. A total of 41 car parking spaces are to be provided, of which 35 are to be allocated for use by the residents with 6 spaces allocated to visitors.

15 The site is to be landscaped in accordance with the plan prepared by Mr Thompson. It is proposed that the majority of the existing vegetation would be removed, with the large oak tree and Norfolk Pine being retained.

16 Under the Whitehorse Planning Scheme, the site is located within the Residential 1 zone, as are all the immediately surrounding properties. The site is not affected by overlay controls.

17 The purpose of the Residential 1 zone, insofar as it is relevant to this matter, is:

• To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

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

• To encourage residential development that respects the neighbourhood character.

18 Under the zone provisions, "Dwelling" a land use term which embraces apartments and townhouses, is an "as of right" or "no permit required" use within the zone. However, a permit is required under clause 32.01-4 for the construction of more than 1 dwelling on a lot. An application under this clause must meet the requirements of clause 55.

19 The decision guidelines at clause 65 require that consideration be given to a range of matters including planning policy. There is a raft of policies within the planning scheme that are in some way relevant to the consideration of this proposal. These were comprehensively covered in the submission presented by Mr Robertson on behalf of the council and referred to where appropriate by Mr Barnes in his evidence. Mr Robertson and Mr Barnes also referred to the proposed changes under Amendment C50. I will refer to the various policies where relevant, including the changes proposed under Amendment C50 that have now been incorporated into the planning scheme with the approval of Part 1 of the amendment.

20 At the hearing, Mr Pitt, Mr Roberston and a number of objectors tabled and spoke to written submissions while some objectors made oral submissions. I was also presented with other material relevant to the consideration of the proposal including various plans maps and diagrams; photographs of the site and surrounding area; and extracts from the panel report on Amendment C50 to the Planning Scheme. I also heard from several expert witnesses. Mr Robertson called Mr R McGauran to give evidence on urban design issues. Mr Pitt called Mr D Barnes, a town planner; Mr H Turnbull, a traffic engineer and Mr R Thomson, a landscape architect. The evidence in chief of all witnesses was set out in reports and they were made available for cross examination. I have inspected the site and locality.

21 Turning to the consideration of the merits of the proposal, it is appropriate that I firstly observe that it is relatively clear that, as a matter of principle, the site presents itself as one that is suitable for some form of appropriately designed medium density housing development. In this regard I note that the site is relatively large, having an overall area of just under 3000 square metres. The site also has the benefit of a relatively wide frontage and regular rectangular shape. The slope is minimal. The dwellings on the site are not in themselves significant and can be demolished. There are no difficult or awkwardly positioned easements.

22 Further, it is relevant that the site is located within an established urban area where all physical infrastructure services are available. There was nothing of any substance put before me to demonstrate that such infrastructure cannot cope with the consequences of development at more intense levels than what exists. Also, it can be said that the site is within reasonable proximity to good public transport facilities and the various facilities and services available in the Box Hill Activity Centre. Even at a walking distance of 700-800 metres from the edge of the Activity centre, it would be difficult to say that this site is remote from the various facilities and services that are available within it.

23 The vegetation on the site may be seen as a constraint, particularly given the thrust of the local policy at clause 22.04. In general terms, this policy seeks to facilitate the retention of trees of appropriate species that are in sound health and have good structure so as to maintain the canopy cover that contributes to the municipality's garden character. In this case however, the arboricultural assessment submitted with the permit application shows that most of the trees on this site have a 'low' retention value with others falling within the 'moderate' category. Only 2 trees have a high retention value.

24 I accept that it is desirable to retain good quality mature vegetation and for this to be incorporated into new developments as this works toward reducing the extent and magnitude of the change. However, it is also appropriate to consider whether the retention of such vegetation is appropriate in the long term having regard to the nature of the development under consideration. In this case, it seems to me that while it is appropriate for some vegetation to be retained, I do not think that the vegetation per se would present a constraint of such magnitude that it would render the site incapable of being redeveloped in a more intense way.

25 All in all, the reality is that the site is reasonably big, free of major constraints and is reasonably well located in terms of facilities and services. There is no doubt that it offers a good opportunity for an appropriate residential development.

26 The question then arises as to whether the development that is proposed in this case is appropriate having regard the thrust of the planning scheme's policies. In this regard there are 2 main themes in the various policies to be considered. First, there are those policies that clearly call for the consolidation of the existing urban area; higher density development in and around activity centres and the provision of housing that adds to diversity and choice. The second policy theme is that which calls for development that "appropriately responds to its landscape, valued built and cultural context"[6], and respects neighbourhood character.

27 In relation to the first theme, the SPPF sets out general policies for planning in Victoria, with those relating to Metropolitan Development, Settlement, and Housing relevant to the consideration of this proposal.

28 The general thrust of the relevant policies at clauses 12.01, 14.01 and 16.02 is to encourage the consolidation of existing urban areas to make more effective use of infrastructure and to provide for a wider variety of housing that better meets the needs of the community. In particular, the policy for housing at clause 12.01supports the location of a substantial portion of new housing in or close to activity centres and other strategic redevelopment sites. Higher density around activity centres and housing development that matches changing demand is contemplated in the policy. Encouragement for higher density development near public transport routes and the provision of housing that improves choice and makes better use of infrastructure is also supported in clauses 14.01 and 16.02 respectively.

29 The MSS builds on the themes expressed in State policy by, amongst other things, endorsing "....the provision of a wider range of housing types to meet the changing needs of the population" with ".....higher density housing being located in specific areas with excellent public transport and shopping access." [7]

30 It seems to me that if the outcomes envisaged by these policies, that is, higher densities and diverse housing forms are to be achieved, it is inevitable that this will require change to the nature of the built form that exists in established urban areas.

31 This leads me to the second main policy theme that requires consideration in this case. The planning scheme's policies, relating to the need for development to be responsive to the context of the site and neighbourhood character are essentially about how the change sought by urban consolidation policies is to be managed. It is not a case of open slather. It is clear that there are various policies throughout the scheme that call for development that responds to a particular site's context and "respects" neighbourhood character.

32 Quite clearly, there is going to be tension between the 2 policy themes that I have discussed above; one which calls for more intense development and the inevitability that this will require "change"; the other which calls for development that responds to neighbourhood character.

33 I would make 3 observations about the above.

34 The first is that while it may be convenient to argue that more weight or preference should be given to either urban consolidation or respecting neighbourhood character, the reality is that consideration must be given to the policy context as a whole, with competing or conflicting policies balanced with the aim of achieving acceptable outcomes.

35 Second, it must be accepted that the notion of "respecting" neighbourhood character does not mean or imply that new development should seek to replicate what already exists. For example in Sinn v Moira SC[8] the tribunal observed that:

However, Residential 1 Zone, the policies at Clauses 16 and 21.04 and Clauses 55 and 56 all emphasise the need for new development to respect neighbourhood character. That does not mean more of the same, nor does it preclude double storey dwellings, unit development or smaller lots.

36 Further, in Iloray Pty Ltd v Darebin CC and Ors [9], the tribunal commented:

53. In considering this issue, the first point to be made is that the notion of development which is "respectful" of neighbourhood character does not imply that such development must be the same as what already exists. If policy, the purpose of the zone and the objectives of clause 55 were calling for the development that is more of the same, then they would say so. Rather, the notion of "respectful" development must embrace the need for change and diversity in the type of dwellings that are provided and an increase in the intensity of development in circumstances where this is encouraged by planning policy and the purpose of the zone.

37 Third, accepting that planning policy calls for development that responds to its context and respects neighbourhood character, nonetheless it will not always be appropriate to base expectations as to what would constitute responsive and respectful development on what already exists. For example, given the thrust of planning policy, it would seem to me that it would be reasonable to anticipate a far greater degree of change in terms of more intense development due to increases in height and density on sites within or directly adjacent to larger activity centres compared to sites that are more remote from such centres. This would be so even if the existing built form or density in both locations was similar.

38 In this particular case, much of the argument revolved around whether the intensity of the proposed development, particularly the 3 storey height and mass of the buildings, represents an acceptable response to neighbourhood character.

39 The position advanced on behalf of the applicant is that the overall level of development is not excessive when consideration is given to the site's context and proximity to the Box Hill Activity Centre. Mr Barnes noted that the Box Hill is one of the Principal Activity Centres under Melbourne 2030 and provides for a substantial employment base, TAFE College, various medical facilities shops and social services as well as an inter-modal transport exchange. It was Mr Barnes' view that given the location, size and the absence of environmental constraints, the site offers the potential to be "fully utilised" to achieve the consolidation objectives set out in the SPPF.

40 Mr Barnes also expressed the view that the latest local policy position, as expressed in Amendment C50, provides support for the redevelopment of the site at the intensity proposed. In this regard, Mr Barnes noted that the site is located within "Character Area 8 - Garden Suburban Area" which has been earmarked for Natural Change under the policy that is now included at clause 22.03.

41 While the policy exhibited under the amendment stated that areas of Natural Change would undergo a "modest level of change" and with the objective that "...development which responds to the prevailing neighbourhood character..." would be encouraged in these areas, Mr Barnes noted that the panel reviewing the amendment was critical of the language that had been used. In particular the panel was critical of the reference to "modest level of change" and that development should respond to "prevailing character". It made these criticisms given its view that areas of Natural Change[10] will, together with areas of Substantial Change ".....need to make a significant contribution to increases in dwelling stock"[11] and that such increases would occur "incrementally" on infill sites to achieve the "desired future character".

42 Accordingly, Mr Barnes suggested that in light of the panel's views, it could be anticipated that quite substantial housing redevelopment is to occur within Natural Change areas provided that such redevelopment has regard to the preferred neighbourhood character for the area.

43 I note that clause 22.03, as it now exists in the planning scheme, continues to state that areas of Natural Change will "undergo a modest level of change to accommodate future increases in dwelling stock" with the objective being that development should respond to the "prevailing character".

44 In general terms, I agree with the proposition that in a location like this, close to a large activity centre, near public transport and properties tend to be large, a considerable amount of housing redevelopment can be expected to occur. I would expect that much of this redevelopment would involve properties typically occupied by single dwellings being redeveloped for medium density housing. It would be difficult to say that this would be inappropriate on this site and other suitable sites in Victoria Street given the reasonably good access to public transport, services and facilities. Indeed, the council and the objectors did not take issue with the principal that this site could be redeveloped at a higher density than the 2 dwellings that now exist.

45 However, I think that a distinction needs to be drawn between an area that is earmarked for Substantial Change and one that is earmarked for Natural Change.

46 I agree that the panel suggested that both these areas would make a significant contribution toward the provision of new housing, but this does not mean that the same built form response to neighbourhood character can also be expected.

47 On reviewing the policy at clause 22.03, the "Categories of Change" map makes it clear that the areas earmarked for Substantial Change are quite targeted in terms of location and discreet in terms of size. The objectives for these areas are clear in that they are the location where higher density development and variation in building height is encouraged. I would expect that the encouragement for variation in building heights would mean taller buildings. The impact on the character of these areas can be expected to be substantial, with the redevelopment of many sites and new development potentially being at considerable odds with what currently exists. The increased intensity of development and substantial change in the nature of built form would work towards these areas making the significant contribution towards the provision of more housing envisaged by the panel. While the scheme contains many policies supporting the notion that new development should respect neighbourhood character, I think that this is an example of an area where, on balance greater weight would be placed on the achievement of urban consolidation objectives with a more flexible attitude taken to the character issue.

48 The direction for areas identified for Natural Change is, however, quite different. Unlike Substantial Change areas, Natural Change areas are far more widespread. It is evident that the panel was of the view that these areas would, in the main, provide opportunities for infill development to occur within established housing, not wholesale redevelopment of these areas per se. Because of their size and the number of properties within them that are likely to offer opportunity for redevelopment for medium density, I agree with the panel's view that, like Substantial Change areas, they are areas capable of making significant contribution towards the provision of more housing within this municipality, albeit that it would be in a different way. Essentially this would entail modest increases on individual sites, however, the overall increase in housing could be significant given the number of properties that offer the potential for redevelopment over the vast Natural Change areas that have been identified.

49 On reviewing the policy as proposed and as it now stands, it seems to me that new development in areas of Natural Change needs to be responsive to neighbourhood character. The panel was critical of objectives in the proposed clause 22.03 policy that refer to the need for new development to respond to the prevailing character without making an allowance for the type of change that can be expected due to infill development. I agree that for statements of desired or preferred future character to be helpful, they need to embrace the notion that change will occur and articulate the type of built form outcome that is envisaged. It is somewhat simplistic to say in a policy that new buildings should reflect what already exists or "prevails"[12].

50 So what does this mean in terms of the proposal?

51 In my view, while this site is located in proximity to the Box Hill Activity Centre, I am unable to come to the conclusion that it is in an area earmarked for higher density housing or significant change. This was made clear in Amendment C50 and the policy at clause 22.03 as it now stands. Rather, it seems to me that the site is located in an area where planning policy envisages that appropriate sites will be redeveloped for medium density housing that responds to the neighbourhood character. In other words, medium density housing will take the form of infill development that will contribute to a gradual or what the panel called "incremental" change in the area. The change in terms of each site might be considered modest, but development within these areas as a whole might bring about a significant contribution toward the provision of more housing within the municipality.

52 The "Statement of desired future character" for Natural Change areas, as set out in the policy at clause 22.03 does little to assist in identification of the type of buildings that can be accommodated. The emphasis in the design objectives and design responses for the "Garden Suburban Areas"[13] remains on the role of vegetation; that is, the retention of trees and the provision of space for new canopy trees. As noted by Mr Barnes, the provision of taller buildings, requiring a lesser footprint but achieving dwelling yield by adding storeys is one way of providing space to retain vegetation and to provide new landscaping. It seems to me that Mr Barnes picked up on this by suggesting that "vegetation" is an important contributor to neighbourhood character and that the proposal has responded appropriately given the retention of 2 larger trees and the provision of large setbacks that provide space for new landscaping.

53 It was also suggested by Mr Barnes that the site is located in an area of "mixed character" where the housing is not from a single period; of a single style or reflective of a particular typology. I think that this is true in that it is evident that the housing in the area, whether single dwellings or medium density housing, reflects the various styles that were in vogue at the time they were built.

54 While I agree that building style is 1 of the elements that contributes to the "feel" or character of a particular neighbourhood, there are a range of other factors to be taken into account. In terms of the built form, these would also include building height, setbacks as well as what is commonly referred to as the "grain" of the development. It is of course also relevant to consider how a proposal will fit into the particular streetscape that it forms part of.

55 On reviewing Mr McGauran's evidence, it seems to me that he had 3 fundamental concerns with respect to the built form proposed in this case. These were with respect to the 3 storey height of the proposed apartment buildings; the overall mass of the building form and its lack of compatibility with the "detached" nature of surrounding development and the inappropriate interface with the park.

56 It would be fair to say that the objectors shared these concerns. For example, Dr Johnson submitted that the development of 3 storey blocks of flats stretching across 2 properties would represent substantial change, a "radical" departure from what has occurred in Victoria Street. Mr Friendship submitted that the single storey unit and townhouse development that has occurred in more recent times represents "the pattern or orderly change" that fits in better with the new and preferred neighbourhood character for the area.

57 Mr Barnes conceded that the proposed 3-storey height of the proposed development would represent "a departure from the dominant single storey unit redevelopment that has occurred in the area". However, he considered the height to be acceptable given the mix of building styles in the area; the provision of adequate setbacks and the landscaping to be provided. In addition Mr Barnes pointed to other aspects of the design such as the staggered front setbacks; the provision of the third level behind a hipped roof form in the east building; articulation and detailing of facade as well as the materials to be used as contributing to an acceptable outcome.

58 On reviewing the proposal, I have come to the conclusion that it does not represent form of infill development having regard to the prevailing neighbourhood context.

59 The consolidation of properties to create larger sites can facilitate better opportunities for the more efficient use of land. However, within established residential areas, it can also result in the creation of a site that is substantially larger than others found within a particular streetscape and/or area. While it is appropriate to seek to take advantage of the opportunities provided by such sites, care needs to be taken to ensure that the development form outcome is responsive to the context. In this regard I think it is helpful to look at the provisions of clause 19.03 of the scheme which provide the following guidance with respect to the consolidation of sites:

• New development should contribute to the "complexity" and diversity of the built environment.

• Site consolidation should not result in street frontages that are out of keeping with the "complexity" and "rhythm" of existing streetscapes.

60 Some of the objectors expressed concern that the dwellings proposed in this case are in the form of apartments rather than "villa" units or townhouses typically found in Victoria Street. I do not share their concern. As I have noted earlier in these reasons, the definition of dwelling within the planning scheme does not differentiate between the different types of housing that are appropriate with the Residential 1 zone. Apartments have the same "as of right" land use status as detached houses, villa units and townhouses. It is also clear that the purpose of the zone includes encouraging a variety of dwellings to meet the needs of the different types of households we have in the community. The provision of apartment style dwellings per se is not in itself unacceptable.

61 I should add at this point that I do not accept Mr Robertson's submission that the proposal fails to provide for "dwelling diversity". This proposal involves the provision of smaller dwellings; a housing type that I understand is needed within this municipality. Single and 2 bedroom apartments are provided. No compelling evidence was submitted to show that there is an imperative to provide dwellings that are either smaller or larger than those to be provided in this case.

62 The concern that I have in this case is not that apartments are proposed, rather that they are to be provided within buildings that are considerably larger, wider and higher than development that is typically found near this site.

63 In relation to streetscape impacts, I agree with Mr McGauran's view that the proposed development would be perceived as a very large and bulky development.

64 The proposed building fronting Victoria Street would have a width of about 34 metres, stretching across about 85 per cent of the site's width. Although the front façade is articulated, I agree with Mr McGauran that it has been designed to have a somewhat symmetrical presentation to the street. The front part has been designed to present itself as a double storey building with hipped roof over the central section with flat roof forms over the side wings; however, a third level encased within a mansard roof form is proposed behind the front hip.

65 All of these factors work towards creating a development form where the height and mass is emphasized. In my view, the proposal would be perceived as large, tall and bulky. It is quite at odds with the pattern of development within the streetscape has a more domestic scale and finer "grain" due to the much smaller size of the individual building modules and the degree of "detachment" or separation.

66 In my view, an appropriate form of infill development would seek to break up the width of the development in some way; say by the provision of a physical break or breaking the building into separate modules. I think that such an approach would be more in line with the policy at clause 19.03 which, in my view, supports the notion that new development on consolidated sites should be in keeping with the rhythm of development within streetscapes.

67 I am also concerned about the "mixing" of roof forms. In this regard, the design incorporates a "hipped" roof over the front part of the central section of the front building; flat roof forms over the side wings and a mansard roof form to the rear of the front hip. While I understand that the variation in roof form has been used to try to maintain a 2 storey presentation to the street and reduce the perception of height, in my view, the outcome presents what I consider to be an unhappy "mish-mash" that gives this building more of an institutional look rather than residential. It is appropriate to be mindful that it is necessary for some institutional uses to locate within residential areas. By necessity, the built form must take into account functional needs. However, I do not think that the same need applies in this case.

68 Mr McGauran expressed the view that it could be possible to incorporate some 3 storey development toward the front of the site; a component that would need to be more modest than what is now proposed. I am not in a position to determine whether it is possible to provide for a third level of accommodation at the front of the site; that ultimately would need to be something that is assessed on its specific merits should a further proposal be submitted. However, the design response which has been put forward in this case is unsuccessful and inappropriate.

69 In an area where I believe that policy is calling for infill development that "fits in" to the streetscape; the height, shape and width of the built form proposed is inappropriate.

70 I have also not been persuaded that the rear building would present an appropriate interface with the park and surrounding properties.

71 The rear building would also contain 3 levels, with the uppermost level setback from the line of the 2 below and encased within a mansard roof form. While the uppermost level of the building could be described as being contained within roof space, I agree with Mr McGauran that the vertical nature of the mansard roof would be read more like walls than roof form.

72 I accept that reasonably generous setbacks have been provided to the rear of the site and that these would provide good opportunity for landscaping. I have not been persuaded however that the 3 storey form and its resultant bulk would represent a sensitive transition to the park.

73 The park contributes greatly to the amenity and character of the immediate neighbourhood. Many residential properties have a direct interface with the park. By and large, development adjacent to the park is single storey with some double storey. I think that the low scale development on adjacent properties contributes to the amenity and ambience of the park. The development that can be viewed from the park reinforces the perception of the low scale and fine grain character of development that is found within this neighbourhood.

74 Although the uppermost storey of the proposed rear building would be setback off the line of the 2 levels below, the perception of the increase in setback would be largely lost when the site is viewed at a distance from within the park. The proposed building would be clearly perceived as a 3 storey development. I accept that the landscaping proposed by Mr Thompson would work toward mitigating the visual impact; however, I have not been persuaded that the introduction of a 3 storey built form at the rear of this site would not have an adverse impact on the amenity and ambience of the park.

75 The upshot of the above is that is that I have formed the view that the proposed development does not represent an appropriate response to neighbourhood character. The 3 storey height of the proposed buildings; the width of the front building and the mix of roof forms are all problematic. I think that the proposed development will simply stand out too much. The type of development put forward in this case would be more acceptable in an area earmarked for substantial change rather than one where infill development with established residential development is envisaged. The proposal should therefore be refused.

76 While I have decided that the application should be refused on neighbourhood character grounds, it is appropriate that I also make some brief comments about other matters of concern raised by those opposing the proposal.

77 In relation to impacts on the amenity of the area generally, concerns were raised about traffic, potential for overlooking and the capacity for infrastructure to cope with the additional demand generated by the proposal.

78 Ms Gallagher raised concerns about extra traffic. I note that the council's traffic engineer did not express any concerns about the amount of traffic to be generated while Mr Turnbull's evidence, which I consider was reasonably conservative, demonstrated that peak hour volumes generated by the proposal would be in the order of about 27 movements. I am unable to come to the view that the additional vehicle movements generated by the 34 dwellings of the size and type proposed could not be accommodated within Victoria Street and other surrounding streets.

79 The overall amount of car parking to be provided on the site is reasonable having regard to the type of dwellings proposed and the availability of public transport. It is reasonable for the visitors to this development to be able to utilise kerbside parking along the site's 40 metre frontage. Visitors who visit the site more frequently will, in my view, come to grips with the arrangements that need to be made to utilise the visitor spaces within the basement.

80 I consider that any potential for unreasonable overlooking, whether external to the site or internal, could be overcome by minor changes to the design.

81 Mr Pratt submitted that the infrastructure in the area would not be able to accommodate the demand generated by this proposal. I note that the council's engineering department considered the impact on infrastructure and did not express any such concern. There was no evidence presented to show proposed development could not be accommodated.

82 Mr Robertson also raised several "internal amenity" or liveability issues.

83 A concern was also raised about the "sense of address" to the apartments within the rear building given that access would be through the foyer to the front building. The arrangement that is proposed is not in itself unusual and I have observed a number of apartment developments that have this type of arrangement. I tend to agree with Mr McGauran that it if such an arrangement is to be provided, direct views through to the rear building should not be impeded by structures such as stairs. I also accept that it would be better if a separate external entry is provided; however, if the current arrangement were to be improved to provide better direct sightlines, I would not find it unacceptable.

84 I do not accept that the proposed apartments have not been designed to be energy efficient. Mr Robertson put forward this proposition on the basis that the majority of the dwellings do not have a northern orientation. While I accept that this is so, northern orientation is not the only factor that contributes to energy efficiency. The attached nature of the construction, the materials to be used, the ability for the majority of apartments to receive direct sunlight for part of the day and adequate daylight to habitable rooms all contribute toward energy efficient design.

85 I have noted the concerns raised by Mr Robertson about the positioning of the private open space for a small number of apartments within the front setback. Only very limited areas within the front setback would need to be fenced to provide seclusion. The extent to which this is required is minor and not unacceptable given the opportunities for landscaping. I also disagree that the open space provided is ad hoc. Each apartment is provided with a balcony or other suitable area with these generally being accessible from an internal living space. The majority of open spaces would receive direct sunlight for at least part of the day.

86 It was asserted the car park ramp is located adjacent to the bedroom for one of the proposed apartments. The bedroom is shielded from the ramp by a wall. I do not accept that this is sufficient basis to reasonably conclude that the proposal would result in unacceptable noise impacts.

87 While the site presents a good opportunity to be redeveloped for medium density housing and that such development is supported by policy, I am unable to conclude that the design response put forward in this case is appropriate from a neighbourhood character viewpoint. The site is located within an area where "infill" development rather than wholesale or substantial change can be expected. I have not been persuaded that the design response is appropriate having regard to the context of the site within this neighbourhood. I will affirm the council's decision.

[2] This summary is based on the list of objections set out in section 6.1.1 of the responsible authority's written submission.

[3] This tree was identified as Tree 13 in an Aboricultural Assessment report by Tree Logic that was submitted with the permit application.

[4] I have based this on the travelling distance up Victoria Street and along Rutland Road; the distance would be closer "as the crow flies"

[5] The amended plans are identified as TP05 to TP12 [inclusive] all dated May 2005 and TP13 and TP14 dated June 2005.

[8] [2004] VCAT 75

[9] [2003] VCAT 692

[10] The panel considered that these areas should be described as areas of "Incremental Change"

[11] page 55 Amendment C50 panel report

[12] In this regard I refer to the design response for the "Garden Suburban Area" which states that [development] "Should reflect the dominant building forms in the street....."