1. In application P1006/2024 the decision of the responsible authority is affirmed.
2. In planning permit application PLN22/0520 no permit is granted.

Construct one two storey dwelling to the rear of the existing shop, and provide one car space in a garage

Application under section 77 of the Planning and Environment Act 1987 (Vic) - to review the refusal to grant a permit.

Clause 34.01-2 - Use of land for accommodation where the frontage of the site exceeds 2 metres.

Clause 34.01-4 - Construct a building or carry out works

Clause 52.06-3 - Reduce the number of car parking spaces required under Clause 52.06-5

The site is a small lot with a frontage of 6.1 metres to Village Avenue, a depth to the rear constructed laneway of 30.5 metres, with an overall site area of approximately 186 square metres. The site forms part of a small activity centre which comprises a number of attached shops, generally single storey in nature, communal parking to the front and a rear constructed laneway which provides loading and garbage access to many of the shops.

1. J & G Manos & Son Pty Ltd (the 'applicant') proposes to develop a two storey dwelling at the rear of an existing shop at 5 Village Avenue, Doncaster. In August 2024, Manningham City Council (the 'council') determined to refuse to grant a planning permit for the proposal. The permit applicant has requested the Tribunal to review council's decision.
2. Council refused the proposal on the following grounds:
   • The proposal fails to respond to its context or minimise its impact on adjoining properties, contrary to Clause 34.01 - Commercial 1 Zone, Clause 15.01-2L-02 - Commercial design - Manningham, Clause 54.04-1 - Side and rear setbacks, Clause 54.04-2 - Walls on Boundaries, and Clause 54.03-3 - Site Coverage of the Manningham Planning Scheme.
   • The proposal presents excessive visual bulk, lacking in any detail design, and would not positively contribute or improve the surrounding area, contrary to Clause 15.01-2L-02 - Commercial design - Manningham, Clause 54.06-1 - Design detail of the Manningham Planning Scheme.
   • The dwelling orientation to the laneway does not integrate with the street, has no sense of address, inadequate wayfinding, and does not promote private or public safety, contrary to Clause 34.01 - Commercial 1 Zone, Clause 15.01-1L-01 - Safer neighbourhoods - Manningham, and Clause 54.02-2 - Integration with the Street of the Manningham Planning Scheme.
   • The internal amenity of the dwelling has an inadequate outlook, inadequate daylight access, and inappropriate siting adjacent to noise sources, contrary to Clause 54.05-1 - Daylight to New Windows, Clause 15.01-2L-02 - Commercial design - Manningham, and Clause 13.05-1S - Noise management of the Manningham Planning Scheme.
   • The proposal has not limited off-site amenity impacts and creates unreasonable overshadowing to the secluded private open space of No. 7 Village Avenue, contrary to Clause 34.01 - Commercial 1 Zone, and Clause 54.04-5 - Overshadowing Open Space of the Manningham Planning Scheme.
   • The car stacker is not functional with insufficient height or clearance to accommodate vehicles and an EV charging system that prevents stacker use, contrary to Clause 52.06-9 of the Manningham Planning Scheme and associated Australian Standards.
   • The design response is convoluted and does not adequately separate or buffer the dwelling from the shop, creating poor future management, internal conflicts and poor amenity, poor delineation of spaces, and would not result in orderly planning of the area, contrary to Clause 65.01 of the Manningham Planning Scheme.
3. Prior to the commencement of the hearing, the applicant circulated amended plans in accordance with the Tribunal Practice Note PNPE9. Amongst design changes, notably the plans increase the reduction of car parking sought from one to two spaces by the deletion of the proposed car stacker and the removal of a balcony screen, seeking to provide a balustrade in its place.
4. In response to these amended plans, and through further investigation, council now agrees that as adjoining properties are not used as a dwelling, its grounds relating to amenity impacts and No. 7 Village Avenue has been deleted.
5. Council now relies on three amended grounds being:
   • The proposal fails to respond to its context or minimise its impact on surrounding properties, contrary to Clause 34.01 - Commercial 1 Zone, Clause 15.01-2L-02 - Commercial design - Manningham of the Manningham Planning Scheme.
   • The dwelling orientation to the laneway does not integrate with the street, has no sense of address, inadequate wayfinding, and does not promote private or public safety, contrary to Clause 34.01 - Commercial 1 Zone, Clause 15.01-2L-02 - Commercial design - Manningham, Clause 15.01-1L-01 - Safer neighbourhoods - Manningham, and Clause 54.02-2 - Integration with the Street of the Manningham Planning Scheme.
   • The privacy of surrounding properties in the General Residential Zone 1 has not been maintained due to unreasonable overlooking, contrary to Clause 15.01-2L-02 - Commercial design - Manningham, Clause 34.01 - Commercial 1 Zone, and Clause 54.04-6 (Overlooking) of the Manningham Planning Scheme.
6. There being no objection, I allowed the amended plans to be substituted, and these now form those on which my decision is reached.
7. I must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions presented with regard to the applicable policies and provisions of the Manningham Planning Scheme (the 'Scheme'), I have decided to affirm the decision of the responsible authority and direct that no permit issue.
8. My detailed reasons follow.

1. The site is located within a strip shopping centre comprising 19 shops known as The Village on High shopping centre. The tenancies principally comprise food and drinks premises, included within generally single storey attached buildings. While there is some two storey form, the council confirms that there are no shop-top dwellings in the centre.
2. Public parking in the area is provided in front and east and west of the shops comprising short term 30 minute to 2 hour restricted parking.
3. The laneway to the rear provides vehicle access to the commercial properties, and vehicle access to some of the residential properties along Curnola Avenue and Tudor Road.
4. Only one residential property has an address to the laneway, at No. 1A Tudor Road, which is a single storey dwelling with its frontage and entry visible from Tudor Road.

Figure 1: Aerial image of centre. Source: Applicant submission.

1. The review site is currently developed with a single storey shop, occupied by the food and drinks premises, 'Doncaster fish & chips'. The building faces Village Avenue and occupies the front half of the site with a floor area of 74.25 square metres. To the rear of the shop is a small storage shed with the remaining area being largely undeveloped.
2. It is proposed to retain the existing shop and construct a new two storey dwelling at its rear. A small gap will be provided between the retained shop and proposed two storey building that will provide for the bin storage area and toilet for the retained shop. The two storey building is proposed to be built generally boundary to boundary, with a small recess providing solar penetration to a ground and first floor bedroom.
3. A narrow walkway provides access for the rear of the shop to the rear laneway to allow for deliveries and garbage collection to/from the retained shop.
4. The proposed dwelling comprises two bedrooms with the first at ground level, and the second together with the living/kitchen areas at first floor. The garage to the dwelling directly abuts the laneway as does the first floor balcony which provides approximately 12 square metres of open space. The pedestrian entry to the dwelling is also proposed directly off the rear laneway.
5. A small ground level service area provides light to the ground level bedroom, accessed through a ground level bathroom.

1. There is no dispute that metropolitan planning policy encourages development within and adjacent activity centres[2]. Increased density of housing around and within activity centres supports the economic enhancement of these centres, provides alternative housing types in well located areas, and allows for activation of commercial streetscapes across a broader range of hours.
2. There are many emerging examples of successful mixed uses proposals comprising commercial uses and dwellings within activity centres, which are generally consistent with the purpose of the C1Z. Similarly, many people would be familiar with older 'shop top' style dwellings above shops (some in the form of caretaker dwellings) in smaller activity centres.
3. Although there is policy support for residential intensification in commercial centres, such potential is not unconstrained. Other policy[3] seeks development that is contextually responsive, provides for a high level of amenity both on and off site, safe, and be well designed.
4. In reaching a decision, I am required to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations
5. While the amended proposal may improve on the original permit application as emphasised in the council's submissions, I find the amended permit application does not meet the test of acceptability under the Scheme.
6. I find that the proposed dwelling has various positive and neutral outcomes. It is consistent with some aspects of policy, and I would not refuse a permit on some contested grounds, for example, overlooking of nearby residential properties. These findings carry weight. However, having considered and weighed all relevant matters, I find the permit application does not achieve a net community benefit.
7. While I have no economic evidence before me, I consider that any economic benefit arising from one additional dwelling is a neutral factor in reaching my decision.
8. Similarly, while there is general policy support for intensification of activity within activity centres, a high degree of change in a local centre is not explicitly supported by local policy. For example, there are no Design and Development Overlay's that seek higher building form for this activity centre and the local policy for activity centres at clause 11.03-1L-01 does not mention residential land use within this particular centre.
9. Clause 11.03-1L-01 establishes the activity centre hierarchy in Manningham. The Village Avenue shops are identified in the lowest level of activity centres, being a 'local activity centre'. For local activity centres, the clause does not mention medium density development instead seeking to:

Support development in local activity centres that:

• Provides convenient access to daily shopping needs within walking distance of residents.
• Minimises negative impacts on the amenity of adjoining residential areas.

1. Clearly, the local strategy for this activity centre is focused on shopping needs and the minimisation of amenity impacts arising from these uses on adjoining residential areas. There is no explicit encouragement, within an activity centre of this nature, for residential development. While this does not mean that residential development is unreasonable, in the balancing of acceptability, the absence of definitive encouragement of residential development within this centre, combined with my concerns with the design detail as expressed below means that any strategic support is neutral.
2. Further, I do not accept that the proposal will contribute to any great extent to either housing choice or housing supply in Manningham. The proposal is for one additional dwelling, which makes no great contribution to housing supply. Further, there is nothing innovative or different, in my mind, that demonstrates an alternative housing choice. It is largely a two bedroom dwelling in a relatively traditional reverse living format. In reaching a balanced decision, I find that the proposal does not make such a positive contribution to housing choice or supply that would support the issue of a planning permit.
3. I also find that the proposal would offer little, if any, intensification of land use or activity benefits to the activity centre itself. The dwelling will largely be oriented to the 'back of house' with no pedestrian or even visual exposure over or into the activity centre. While the dwelling will technically be sited within the activity centre, it will have no direct relationship with the activity occurring in Village Avenue, as its vehicle and pedestrian access is from the service laneway and there are no windows to the dwelling that have the capacity to view the activity centre itself.
4. The design of the proposed dwelling is unacceptable. This outcome has arisen because of the applicant's desire to retain the existing shop without change. While this is their prerogative, it has resulted in a proposal that is 'squeezed' into the rear of the site. It offers poor amenity to future residents. There are no other broader community benefits to either the activity centre itself, or to housing supply or diversity. This is not to say that a residential development should not be supported in this location or even on this site. But for this to occur, the proposal must provide an improved housing outcome for both future residents and the broader activity centre.
5. Of most concern is that the proposed dwelling has some unacceptable amenity implications as a consequence of the design response. From an internal amenity perspective, while I accept that there are instances in which the sharing of the right of way by additional pedestrians and vehicles would be acceptable, in this case I am not persuaded that the direct abuttal of the only residential entry is to a laneway that serves a predominantly commercial function (with associated delivery vehicle, waste management including bin storage), is acceptable. I find that this configuration will give rise to unreasonable amenity impacts for future occupants of the dwelling. This design will give rise to land use conflicts between other commercial tenancies (which rely on the rear laneway for garbage collection and delivery), the proposed dwelling entry and the proposed balcony which provides the only recreational space for future residents, and which will be located directly abutting the laneway.
6. It is well understood that people prefer to walk along streets where there is activity, visual interest and a perception of being visible from nearby windows. People tend to avoid streets with long blank walls that contribute no interest or activity at street level. I agree with council that in the absence of direct access to the dwelling via the Village Avenue frontage, the proposed dwelling entry is located too far down the laneway, and that this sole access point is not conveniently located for visitors, or emergency services. There is no transition space at the dwelling entry and this will lead to conflict with the commercial users of the laneway. In the context of a commercially used laneway, which both photographic examples and my own inspection confirms is well used for bin storage and delivery access, the convenience and safety of dwelling occupants is not well resolved.
7. Finally, one of the benefits of living in an activity centre is the access that this location provides to a mix of land uses such as cafes/restaurants and entertainment. Residents of these activity centres often 'trade off' the disbenefits of living in commercial zones for these benefits. They can also expect a reduced level of amenity than should they live in a pristine residential environment. In this case, I see no tipping in favour of a residential development of the type sought. The proposal does not have direct residential access to the activity centre. It relies on a well used service and waste collection laneway for both pedestrian and vehicular access. Its sole recreation space is a 2 metre wide balcony that directly abuts this service laneway.
8. The dwelling has no frontage to Village Avenue either via windows or entries. The proposal does not maximise safety through informal surveillance of streets and public spaces from within buildings in activity centres. It does not provide any windows of the building that will overlook the adjacent street and public space. It does not provide building entries and transparent windows to the street frontage.

1. In conclusion and having regard to the requirements of Clauses 65 and 71.02, I consider that the proposal does not achieve a net community benefit. The decision of the responsible authority is affirmed. No permit is to issue.

[1] The submissions of the parties, any supporting exhibits given provided to the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.