1. The application for review is made under Section 79 of the Planning and Environment Act 1987 seeking review of the Port Phillip City Council's (the 'Council') failure to grant a permit within the prescribed time.
2. Council subsequently advised the Tribunal that it would have determined to grant a planning permit for the proposed development.
3. Nearby residents opposed the development generally on grounds that:
   • Amenity impacts to nearby properties would be unreasonable specifically in relation to overlooking and overshadowing;
   • There is inadequate on site provision for car parking in an area where on street parking is increasingly under pressure;
   • Increased traffic to the street will be a hazard to existing residents; and
   • The four storey height of the proposal is in conflict with the neighbourhood character of Farmer Street and the two storey built form to St Kilda Road.
4. I have found that the proposed use and development, subject to alterations including a setback of the top level from the east boundary, is acceptable for the site, will not unreasonably impact on amenity of nearby properties, makes adequate provision for car parking and creates a built form that is acceptable in the neighbourhood context. These findings are based on my inspection of the review site and surrounds, consideration of the submissions and evidence at the hearing and having regard to the planning controls and policies of the Port Phillip Planning Scheme (the 'Scheme').

1. My decision to support the proposed development is based on my findings on the following key issues:
   • Suitability of site for high density residential development and ground floor office use having regard to the planning provisions and policy context.
   • Acceptability of the built form of the proposed development, especially in regard to height.
   • Off site amenity impacts
   • Internal amenity
   • Adequacy of car parking and traffic matters.

1. St Kilda Road, including the review site, is identified in local policy[2] as having opportunities for new residential growth and being a suitable location for high density residential development. The location of the site on a main road and a public transport route and in excellent proximity to services and facilities are factors which local and State policy identify as appropriate for increased residential densities.
2. State and local policy identify the need to provide a diversity of dwelling types and to compensate for population losses caused by falling household sizes. Local policy builds on the State Planning Policy Framework which provides support for urban consolidation and recognises the advantages of providing opportunities for residential land use in close proximity to activity centres to support economic activity, environmentally sustainable living and make maximum use of public transport and other infrastructure.
3. I find the vacant corner site in a Business 2 zone, located on a main road, with excellent access to public transport and commercial and community infrastructure is an appropriate location for higher residential density and such development is supported by policy.
4. Local policy[3] envisages St Kilda Road South (which includes the review site) as a

'gateway' of high quality office and commercial development with some residential uses. New development is designed in a manner that upgrades and develops the appearance of the boulevard by responding to the consistent scale, form and "hard-edge" of the buildings along the east side of St Kilda Road.

1. I am satisfied that the ground floor office floor space proposed is consistent with this policy and ensures an 'active' street frontage to encourage pedestrian activity as sought in local policy.[4] The office use does not require a permit in the Business 2 zone and is specifically encouraged in the purpose of the zone.
2. I agree with Mr Trickey's evidence that the local and State policy support for increased dwelling density and diversity on this site together with the Business 2 zoning of the land creates a different starting point for consideration of built form compared to a site within an area identified as an established residential neighbourhood where existing residential character should generally be protected and the impact of new medium density development be minimised.[5] This is an area identified for change and as such the question for me to determine is whether the change proposed by this development is acceptable.

1. The concerns about built form of the proposal primarily related to height and the impact this has on neighbourhood character and amenity although concern about the appearance of the car stackers to Farmer Street was also raised. The issue of amenity I deal with later.
2. Ms Cannold raised concern about the height of the building being three times the height of buildings on Farmer Street. She argued that while it might be convenient to consider the site as part of the St Kilda Road, the connection to Farmer Street is clear and the residential hinterland will be faced with a sheer wall creating an intrusive built form. In Ms Cannold's submission, the setback of the upper level to St Kilda Road is justified as appropriate to fit into the streetscape yet no similar approach to the more sensitive residential interface is provided. The deletion of the upper level would be the appropriate response in terms of built form and would also, in Ms Cannold's view, reduce concerns about shadows, privacy and car parking.
3. Other residents argued that a four storey building in the context of predominantly single storey dwellings in Farmer Street and two storey buildings in St Kilda road will be overwhelming and detrimental to the character, appeal and value of the existing neighbourhood.
4. Mr McConchie, on behalf of Council, submitted that the neighbourhood character of the review site relates to the commercial strip along St Kilda Road defined by roads, zoning and laneways rather than the residential area to the east. It was Council's submission that the proposal would broadly be in scale with the 2 and 3 storey structures to the north and would not detrimentally impact on views down Farmer Street to the dwellings beyond.
5. Mr Stokens submitted that the built form proposed is appropriate having regard to the following matters:
   • The St Kilda Road streetscape in the vicinity of the review site is not intact and demonstrates a diversity of architectural styles ranging from two storey Victorian shops to contemporary incursions into neighbourhood character in terms of height, style and scale.
   • 100% site coverage is typical of surrounding development.
   • The 7.6 metre setback from St Kilda Road at the fourth level will ameliorate any perception of height when viewed from the footpath.

1. I find the four storey height to St Kilda Road is acceptable and that the development will result in a built form that contributes to the 'gateway' effect sought in local policy for this part of St Kilda Road. I say this for the following reasons:
   • The three storey scale proposed to the street frontage will have an appropriate relationship with the nearby two storey development. I agree with Mr Stokens that the recessed fourth level will limit visibility from St Kilda Road.
   • Construction to the street frontage is consistent with nearby commercial development and in accordance with local policy that seeks to maintain a 'hard edge' to the street.
     • The glazed office front with a canopy over creates a human scale and an 'active' frontage to the street in keeping with nearby commercial development.
   • The presentation to St Kilda Road is contemporary and of a high architectural quality contributing to an upgrading of this important boulevard.

1. The Farmer Street elevation of the proposed development incorporates a three storey building adjacent to the St Kilda Road frontage which then rises to a four storey height as it extends east along Farmer Street. At ground level the elevation presents with a shop front to the corner, an open area to the car stacker, a glazed pedestrian entry and then timber cladding screening the car stackers accessed from the rear laneway. At upper levels, the elevation presents with a series of balconies facing south and east interspersed with windows, sections of rendered wall and aluminium louvres.
2. The residential development in Farmer Street is predominantly single storey with one two storey dwelling at 4 Farmer Street. I agree with residents that the proposed built form and height will change the character of the area and but I am satisfied that such change, subject to modifications that I address later, is in accordance with planning policy and is acceptable. I say this for the following reasons:
   • The separation provided by the 3.6metre wide laneway creates a demarcation between different built forms with the review site having no direct abuttal to the fine-grained residential properties in Farmer Street.
   • The dwelling on the east side of the laneway has no outlook to the review site. I acknowledge the outlook from the west facing window at 4 Farmer Street will alter but I am satisfied that the separation of some 12 metres between this window and the development is sufficient to avoid the appearance of visual bulk.
   • The southern and eastern elevations are well articulated with recessed walls behind balconies, a canopy over the ground level footpath, timber cladding and glazed balustrades to balconies and the use of varied external materials.
   • The amenity impacts to existing residential uses have been acceptably minimised, a matter I address in detail later.
   • The character of Farmer Street is not uniformly residential with an industrial building and use at 6 Farmer Street and a community centre and associated car park at the eastern end of the street.
   • Other buildings on the east side of St Kilda Road extend to the laneway in sheer two or three storey walls providing a hard edge pattern between the residential and business zones.
   • The dominant interface to Farmer Street is the south elevation and this faces a one and two storey commercial building which is in a Business 2 zone.

1. Other than visual bulk which I have addressed in my assessment of built form, respondents raised concerns regarding overlooking, overshadowing and loss of light. As the building is four storeys the provisions of Clause 55 of the Port Phillip Planning Scheme in regard to external amenity are not applicable. There are however a number of provisions in the Scheme that require consideration of amenity of adjoining properties including the provisions of the Urban Design Policy at Clause 22.06 of the Scheme and the Guidelines for Higher Density Residential Development prepared by the Department of Sustainability and Environment 2004[11].
2. Addressing each of these matters in turn I find as follows.

1. Mr Kok was concerned about potential overlooking to a window located on the west side of his dwelling. Ms Cannold and Mr Clarke raised concern about loss of privacy to their property.
2. The Guidelines for Higher Density Residential Development specify that

The internal layout of buildings and individual apartments should take adjoining properties into account. Existing dwellings should be protected from potential overlooking in accordance with the requirements of Clause 55 of planning schemes.

1. The objective of Clause 55.04-6 Overlooking of the Port Phillip Planning Scheme is to:

To limit views into existing secluded private open space and habitable room windows.

The standard to achieve this objective is (in part):

A habitable room window, balcony, terrace, deck or patio should be located and designed to avoid direct views into the secluded private open space of an existing dwelling within a horizontal distance of 9 metres (measured at ground level) of the window, balcony, terrace, deck or patio....

A habitable room window, balcony, terrace, deck or patio with a direct view into a habitable room window of existing dwelling within a horizontal distance of 9 metres (measured at ground level) of the window, balcony, terrace, deck or patio should be either:

1. I have considered the potential for overlooking to residential properties assisted by my inspection of Mr Kok's dwelling and rear yard and the area generally. I am not persuaded that there will be unreasonable loss of privacy as a result of the development for the following reasons.
2. To the east the three upper levels will allow opportunity for views from the living room, bedroom and balcony associated with Units 4, 8 and 11. To the south there will opportunities for overlooking from a number of habitable room windows and balconies of the three upper levels.
3. Given that Clause 55.04-6 of the Port Phillip Planning Scheme specifies a 9 metre distance is sufficient to limit overlooking I am satisfied that the impact on privacy of habitable room windows and secluded private open space is acceptably limited by distance and window type as follows:
   • The west facing window of 2 Farmer Street, facing the right of way, is of opaque glass avoiding any opportunity for views into the adjacent room.
   • The secluded private open space of 2 Farmer Street is located to the north east of the review site some 11 metres from the east facing habitable room windows and 14m from the east facing balconies.
   • The west facing window of 4 Farmer Street (Mr Kok's property) is approximately 12 metres from the east facing habitable room windows and balconies.
   • Habitable room windows of 1 Farmer Street facing the street and an adjoining lane are at least 12 metres from the east facing windows of the proposal and 18 metres from the south facing balconies and habitable room windows and, in any event, already allow for some public views given their proximity to public spaces.
   • The overlooking to front gardens of properties in Farmer Street is acceptable given that these areas have a public interface and do not constitute secluded private open space[12].

1. Ms Cannold raised concern about the shadow cast to windows of 1 Farmer Street facing the laneway. Although acknowledging that the standards refer to shadows between 9am and 3pm, she was particularly concerned about shadows cast after 3pm when rooms are in use.
2. Mr Kok was concerned about any loss of light to his dwelling and outdoor space given the limitations on light received from other aspects of his property. Loss of winter light was of particular concern.
3. My assessment of overshadowing impacts is guided by various provisions of the Port Phillip Planning Scheme relating to amenity. Local policy at Clause 22.06 specifies in relation to sunlight and daylight that a new development must allow sunlight and daylight to the main living room windows of existing dwellings and this may be achieved by ensuring that:

There is not a significant loss of daylight to existing habitable rooms (excluding service areas) in nearby properties.

Main living room windows on existing or nearby residential properties are not significantly overshadowed.

1. The Guidelines for Higher Density Residential Development provide guidance on daylight and sunlight with Objective 2.6 of the Guidelines seeking:

To ensure areas can develop with an equitable access to outlook and sunlight.

1. A number of design suggestions to achieve this objective are provided including:

Maintain sunlight and daylight access to adjoining private open spaces of dwellings in accordance with Clause 55 of the Planning Schemes.

1. There are three key Clause 55 objectives relevant to the sunlight and daylight. These are as follows:
   • Clause 55.04-5 to ensure buildings do not significantly overshadow existing secluded private open space.
   • Clause 55.04-4 to allow adequate solar access to existing north-facing habitable room windows.
   • Clause 55.04-3 to allow adequate daylight into existing habitable room windows.
2. I am satisfied that the development will meet these objectives and the State and local policy for the following reasons:
   • There are no north facing habitable room windows within 3m of the boundary of an abutting lot thus ensuring the standard in relation to north facing windows is met.
   • The development will not cast shadows on secluded private open space between 9am and 3pm at the equinox thus meeting the applicable test.
   • The proposed building ensures a 3 square metre light court to any nearby habitable room windows.
   • Shadow diagrams provided at the hearing, which included the dwelling at 1 Farmer Street plotted, demonstrated to my satisfaction that shadows will not extend to the east facing windows of that dwelling.[13]
   • Although shadows will be cast further at the winter solstice this is not the test I am required to apply. I am satisfied that there will not be significant loss of daylight to habitable room windows of existing dwellings and that main living room windows of existing dwellings will not be significantly overshadowed.
   • The separation distance between the review site and the dwellings at 1 and 4 Farmer Street and the site orientation is such that loss of light will arise from shadows cast by closer buildings before shadows are cast by the proposed building.
   • The standards that are set in the Port Phillip Planning Scheme to achieve the Clause 55 objectives in relation to daylight and sunlight are met.

1. The size of the balconies range between 6.5 and 8 square metres and for seven of the units the balconies are oriented to the south. Mr Trickey agreed this is not optimal in terms of solar access but pointed out that the east west orientation and narrow width of the site constraint the design.
2. I am not persuaded that the size or orientation of the balconies is of such concern to warrant rejection or modification of the proposal. I consider that the provision of a small outdoor area for each unit accessible from a living room will provide for a sense of openness and ventilation and some opportunity for passive recreation for occupants of these relatively small dwellings. In making this finding I have had regard to the proximity of the site to Duggan Reserve accessible by foot from the eastern end of Farmer Street.
3. I consider there is an opportunity to increase the balcony size to Unit 9. This unit is on the top level and faces St Kilda Road. The plans show an 8 square metre balcony extending across part of the frontage of the unit. It is my view that the amenity of this unit would be improved if this balcony extended to the northern boundary and such alteration would not create adverse built form or external amenity impacts[14].

1. A number of respondents raised concerns about car parking and traffic as follows:
   • On site car parking is inadequate with no provision for visitor parking and only one car space per unit.
   • Farmer Street is already congested during the day due to overflow parking from local businesses that makes it very difficult to find a car space. This congestion will increase due to generation of parking from the development and the loss of parking currently provided on the site and makes it unreasonable to allow a reduced amount of parking onsite.
   • The inconvenience of the proposed stacker parking system will encourage future residents to park in Farmer Street for short term visits.
   • The demographics of current residents as well as likely future residents of the apartments is such that the majority will have two cars and this will mean the second car will park on Farmer Street.
   • Access to one of the stackers will consume an existing on street car space.
   • The development will increase traffic into the small 'dead end' street resulting in hazards for children and pets of the existing community and difficulties in access of emergency services.
   • The rear laneway is used as a shortcut to Argyle Street and the entry to the site from the laneway will create safety concerns.
2. Clause 52.06 of the Scheme requires the provision of 2 car spaces per dwelling which results in a requirement of 22 car spaces for the apartments.[15] The proposed office generates a requirement of 2 car spaces. The total requirement for car parking is thus 24 car spaces. The provision of car parking onsite is 12 car spaces and the applicant seeks a reduction from the specified standard as part of the application.
3. The Scheme allows a permit to be granted for the waiving or reduction of the specified number of car spaces. Before a requirement for car spaces is reduced the applicant must satisfy the responsible authority, and on review the Tribunal, that the reduced provision is justified due to a number of matters including:

• The availability of car parking in the locality.
• The availability of public transport in the locality.
• Local traffic management.
• Local amenity including pedestrian amenity.
• An empirical assessment of car parking demand.

1. Turning first to car parking, I am satisfied that the proposed provision is acceptable for the following reasons.
2. An empirical assessment of car parking demand[16] provided in Mr Malinas' evidence shows a rate of 0.78 cars per 1 bedroom unit and 1.11 cars per 2 bedroom unit. Application of these rates would result in a requirement of 10 car spaces for the dwellings.
3. The Sustainable Transport Policy and Parking Rates Strategy[17] of Council provides a 'sustainable' rate of 0-0.8 car space per 1 or 2 bedroom dwelling provided the key criteria are met. The review site meets all the criteria including being within a specified distance to an activity centre, a supermarket and fixed rail transport. Application of the maximum rate under this Strategy results in a requirement of 9 car spaces for the dwellings.
4. The provision of 1 car space per 1 or 2 bedroom dwelling is in accordance with ResCode requirements which this Tribunal has accepted on a number of occasions as providing a more appropriate ratio of parking for residential development of this type.
5. I am satisfied that the provision of one car space per dwelling will cater for the likely demands of future residents.
6. Accepting the provision and allocation of one car space per dwelling for the reasons provided above means that there is one car space available for the demand generated by the office space. This is one short of the two car spaces required by the provisions of the Scheme. In addition there is no onsite provision for visitor car parking.
7. I consider that the waiving of one car space for the office space and the absence of onsite visitor car parking is acceptable having regard to the following:
   • I accept the evidence of Mr Malinas that there is capacity on street within reasonable distance of the review site to accommodate both long term car parking to cater for the shortfall for the office and short term car parking to cater for visitors to the apartments.[18]
   • The review site has excellent access to public transport with tram and bus routes nearby.
   • The development provides onsite parking for bicycles and motorbikes.
8. The provision of a double crossover to Farmer Street will result in the loss of an on street car space. While it would be preferable to maximise on street parking availability I consider it unreasonable to deny the property a point of access in circumstances where it is safe to provide such access and having regard to the 30 metre frontage to Farmer Street. The past use of the currently vacant review site for unofficial car parking is not relevant to my consideration of parking for the proposed development.

1. The draft conditions circulated by Council were discussed at the hearing. I have generally adopted these conditions subject to changes to reflect the findings in this decision and discussions at the hearing. I have included a condition requiring on going maintenance of the car stackers.

1. For the reasons set out above, I conclude that, subject to modifications set out in this decision, the proposal is acceptable having regard to the policies and provisions of the Port Phillip Planning Scheme and I will direct that a permit be granted.

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans TP3A, TP4A, TP6A & TP7A dated 5 October 2008 and TP5 & TP9B amended 5 October 2008 prepared by DCPM Architects and substituted by VCAT for the application plans submitted with the application but modified to show:

1. The fourth level setback 3 metres from the eastern boundary. This may result in the fourth level setback to St Kilda Road being reduced by 3 metres. 2. The balcony for Unit 9 facing St Kilda Road at the fourth level extending the full width of the west elevation.

1. Provision of a roller door or similar in front of the car stackers accessed from Farmer Street.

1. All plant and equipment (including air conditioning, heating units, hotwater systems, etc.) which is to be located externally must be identified on plans. 2. The location of letter boxes. 3. The number of bicycle spaces to be accommodated in the bicycle storage area.
2. The development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.
3. Before the development starts, a full schedule of materials, finishes and paint colours, including colour samples (colour samples in a form that is able to be endorsed and held on file), must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit.
4. No equipment services and architectural features other than those shown on the endorsed plan must be permitted above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority.
5. Prior to the occupation of the premises, areas set aside for parked vehicles as shown on the endorsed plans must be constructed to the satisfaction of the responsible authority.
6. The mechanical car stackers are to be maintained in good working order and be permanently available for the parking of vehicles to the satisfaction of the Responsible Authority.
7. Parking areas/spaces and all access lanes must be kept available for those purposes at all times.
8. Vehicular crossings must be constructed in accordance with the endorsed plans to the satisfaction of the responsible authority, before the use is commenced or building occupied:
   1. Standard vehicular crossings must be constructed and/or widened to the satisfaction of the responsible authority.
   2. Any redundant crossing (or part thereof) must be removed and the footpath and kerb reconstructed incorporating bluestone pitchers or suitably shaped and coloured concrete kerb and channel to match existing kerb and guttering (as appropriate) to specifications to the satisfaction of the Responsible Authority and at no cost to the Responsible Authority. Any new car space(s) created along the street frontage of the site as a result of the removal of the crossing must be line marked to the satisfaction of the responsible authority. Any surplus bluestone pitchers must be returned to Councils depot, at cost to the applicant or owner.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

[1] A review against failure is a deemed refusal under Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998.

[2] In the Strategic Land Use Framework Plan at Clause 21.04-8, at Clause 21.05-8 Commercial Land Use and in the Residential Land Use Framework Plan at Clause 21.05-1.

[4] At Clauses 21.05-8 and 22.06 of the Scheme.

[5] As indicated on the Residential Land Use Framework Plan at Clause 21.05-1.

[6] I Y Lords Investments v Port Phillip CC [2007] VCAT 1221 (11 July 2007)

[7] 333 St Kilda Road Pty Ltd v Port Phillip CC & Ors [2002] VCAT 665 (16 April 2002)

[8] Kleytman v Port Phillip CC [2008] VCAT 1841 (1 September 2008)

[9] At Clause 22.06-4 Performance measure no. 8

[10] The evidence of Mr Malinas was that Farmer Street carries approximately 60 vehicles per day which will increase to approximately 122 vehicles per day upon occupation of the proposed development.

[11] Referred to at Clause 19.03 of the Port Phillip Planning Scheme.

[12] Secluded private open space is defined in the Scheme as that part of private open space primarily intended for outdoor living activities which enjoys a reasonable amount of privacy. The front gardens of Farmer Street properties would not be considered as secluded private open space given their visibility to the street.

[13] Noting that even had the shadows extended to affect those windows after 3pm I would not have found this contrary to the Planning Scheme standards.

[14] Noting that the alterations I have required to the siting of the upper level will result in the balcony being setback 2m from St Kilda Road.

[15] The provisions of Clause 55 of the Scheme do not apply as the development is four storeys. The table to Clause 52.06-5 sets the car parking requirements for the residential and office component of the development

[16] Based on Australian Bureau of Statistics 2006 Census data of car ownership for residents of flats or units in St Kilda and St Kilda East.

[17] Adopted by Council in April 2007. I acknowledge this Strategy does not form part of the Scheme although I was advised that an amendment to include it in local policy is proposed.

[18] Parking demands surveys undertaken by GTA Consultants on 17 and 18 October 2008 at 12noon and 8pm showed minimum short term on street vacancies of 24 and minimum long term on street vacancies of seven car spaces.

[19] Mr Malinas advised that occupants are assigned a top or bottom space in the stackers and a key activates access. Sometimes it will not be necessary to move the stacker to access the car space.

[20] Based on traffic counts undertaken by GTA Consultants at AM and PM peak times on Friday 17 October 2008 and provided in the expert evidence of Mr Malinas dated 29 October 2008.