1. The responsible authority must issue a permit for development of a four storey building above a basement carpark comprising shops and apartments, partial waiver of car parking and loading facilities in accordance with the endorsed plans.

2. The conditions to be imposed on the permit are contained in the Appendix to this decision.

Develop a four storey building above a basement car park comprising 4 shops and 16 apartments with partial waiver of car parking and loading facilities.

Section 77 of the Planning and Environment Act 1987.

The site is located in the southern section of the Hampton Street Activity Centre. The site has a frontage of 19.55 metres to Hampton Street and a depth of 44.74 metres. It currently comprises shops. It has a rear abuttal to a right-of-way that connects with Small Street.

Mr Nick Tweedie of Counsel. Mr Tweedie called evidence from:

1. This is an Application for Review against the decision of Bayside City Council to refuse an application for a four storey building comprising shops at ground level and three levels of apartments in Hampton Street, Hampton.
2. The grounds of refusal were:
   • The proposal is considered to be excessive in height and is not in keeping with the character of the area.
   • The proposal does not meet the requirements of DDO6.
   • The proposal will result in unreasonable detriment to the residential amenity of the surrounding area.
   • The proposed development will result in traffic conflicts and congestion to the detriment of the amenity of the area.
3. Various objectors lodged Statement of Grounds although none attended the Tribunal hearing. The issues raised by objectors were related to:
   • Overdevelopment
   • Inadequate car parking
   • Traffic difficulties for vehicles using the laneway to the rear of the site
   • Potential safety issues
4. After hearing all submissions, examining the Statement of Grounds by objectors, and viewing the subject site including the rear laneway, I consider the principal issues in contention are:
   • Is the proposed development excessive in height and in keeping with the character of the area?
   • Will there be unreasonable detriment to the residential amenity of the surrounding area?
   • Will there be unreasonable traffic conflicts and congestions having regard to the context of the site and its zoning?

1. It is proposed to demolish existing buildings on the site comprising shops and replace this with a four storey building with basement car parking, ground level retail, and three levels of residential apartments (16 in number). The application also seeks waiver of the loading bay requirement and partial waiver of the car parking requirements in that it intends to provide one car parking space per dwelling and one car space per shop occupancy.
2. The proposed development will have a two storey facade to Hampton Street with four shops and a pedestrian entrance to the apartments. The levels of first and second floor apartments will be set back about 4 metres from the Hampton Street frontage although a large portal parapet structure will provide a two storey false facade particularly in front of the first floor level apartments.
3. The top level will be set back about 9.9 metres from the Hampton Street frontage and about 6.8 metres from the rear property alignment.
4. Vehicular access is to be obtained via a 3.4 metre wide concrete access lane which connects with Small Street.
5. Architectural treatment is contemporary vernacular, with a combination of glass and masonry facade treatments. Side walls will be a combination of render painted warm white concrete (natural grey colour).
6. The overall height is about 13.8 metres (from the rear laneway level) or about 13.6 metres above the footpath pavement in Hampton Street. A lift overrun and screen will exceed this, but this is located in a central position on the building.

1. He subject site is located on the western side of Hampton Street about 20 metres south of Small Street in the Hampton Activity Centre. This section of the Activity Centre comprises predominantly single and two storey retail facades and residential above generally in a fine- grain subdivision pattern although the subject site has shops which have a wider frontage than the norm.
2. Land to the rear yet located in the same Business zone, facing Small Street comprises two storey apartments with various garage entrances abutting the laneway. There are also some first floor level terraces of apartments orientated to the north or south of their respective dwelling.
3. The Hampton Railway Station is located about 75 metres to the north. The Hampton Beach is about 300 metres to the west.
4. Land opposite comprises commercial premises in the Hampton Street Activity Centre.
5. There is on-street car parking in both Hampton and Small Streets, and a public car park behind the Hampton Street shops in Small Street to the east of the subject site.
6. There is evidence of recent residential redevelopment, particularly in Small Street to the west of the subject site and parts of Hampton Street to the south of the Activity Centre.

1. The subject site and all abutting properties including the residential properties in Small Street are zoned Business 1 under the Bayside Planning Scheme. The purposes of this zone are:
   • To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
   • To encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses.
2. There is no permit requirement for dwelling use because the pedestrian access to Hampton Street does not exceed 2 metres.
3. A permit is also required to subdivide land although there was no issue with this aspect of the application. Permission is also required to waiver the normal car parking requirement.
4. In consideration of any request for a waiver, Clause 52.06-1 requires an assessment of:
   • The availability of parking in the locality.
   • The availability of public transport in the locality.
   • Any car parking deficiency or surplus associated with the existing use of the land.
   • An empirical assessment of car parking demand.
5. Permission is also required for dispensation in the need for a loading bay.
6. Local planning policies referred to in this application include:
   • Clause 21.04-3 within the Strategic Framework Plan the subject site is identified as being within the Hampton Street Major Activity Centre where higher density of residential development is encouraged.
   • Clause 21.05 Housing - Encourages housing choice and quality design outcomes that make a positive contribution to the character of residential areas.
   • Clause 21.06 Activity Centres - Aims to identify opportunities use of shop top dwellings.

1. At the review hearing Ms Bowdern and Mr Tweedie provided detailed written submissions and each witness provided written statements and were available for cross-examination. There was no attendance by any of the objectors, however I have taken into account each written submission received. I advised the parties I had viewed the site and neighbourhood prior to the review hearing and that I was familiar with the Hampton Street Activity Centre.
2. Following the review hearing I set aside the responsible authority's decision and directed the issuance of a permit in accordance with conditions as contained in the Appendix to this decision. I advised the parties that having regard to the absence of the objectors and given the issues, I thought it prudent to provide written reasons for the benefit of the responsible authority and those persons not present at the hearing.

1. Essentially, the first two grounds of refusal are intertwined and the Council's primary objection to this development relates to the presence of a third storey because it did not meet the nominal height limit in what was then the Design and Development Overlay (DDO6) and because it is felt that this development is out of character with the neighbourhood.
2. The Design and Development Overlay (DDO6) expired on 30 June 2009 and has not been replaced. I acknowledge the Council would like to see it reinstated but there appears to be significant strategic reasons why this has not been enacted. However, as there is no height limit, whether discretionary of otherwise in the Planning Scheme, and ground number 2 is no longer sustainable.
3. The Council officer and the Council itself seem to think that the maximum height of a building along Hampton Street should be three storeys, irrespective of the strategic and design merits of the proposal. This approach seems to give insufficient weight to the strategic imperatives contained within State and Local planning that four storeys. Some of the important reasons include :
   • The purpose of the Business 1 Zone that seeks to encourage an intensive form of development.
   • The proximity of the site to excellent public transport and other community facilities, like the foreshore, other parks, excellent shopping.
   • The lack or direct interface with residential zoned land,
   • Strategic imperatives contained within Clauses 12, 14 and 16 of the State section of the Planning Scheme and Melbourne @5 million.
4. Ms Bowdern conceded many of these aspects in paragraphs 7.2 and 7.3 in her written submission:

7.2 Council concedes that the proposed mixed use of this site could be supported by both State and Local Policies that encourage a more intensive use in Major Activity Centres. The subject land is part of an established business area characterised by commercial developments built to the boundaries. The subject land is also located in the vicinity of Hampton Railway Station, which re-affirms the site's potential to support a variety of uses which complement the Activity Centre.

7.3 Furthermore, Council acknowledges that the proposal to develop the site within the Hampton Street Activity Centre and in close proximity to public transport, into a mixed use building incorporating retail tenancies and apartments accords with the State Planning Policy directives and the Bayside's Overarching Goals at Clause 21.04 of the Bayside Planning Scheme.

1. Where the two parties differed relates primarily to the placement of two apartments on the top floor of the building. In this case that section of the building will be set back 9.3 metres from the Hampton Street frontage and 6.8 metres from its rear abuttal. Whilst it is four storeys the upper floor will not form the prominent aspect of the building when viewed from immediately outside the site in Hampton Street or the rear laneway.

1. Mr Tweedie was critical of the Council's assertion that the proposal should be assessed on the basis of existing neighbourhood character rather than what is likely to occur in the future. I agree the assertion that the existing neighbourhood character is likely to change. There is evidence of change occurring in and around the southern section of the Hampton Street Activity Centre and given its strategic location and the imperatives of Melbourne @5 Million one can expect further change.
2. The Business 1 Zone, particularly those in Major Activity Centres is intended to accommodate intensive development, it does not have a purpose that seeks residential development that respects the character of the neighbourhood. As Mr Biacsi said in his witness statement:

The proposal accords with the housing policies, which encourage quality urban, design outcomes that meet the changing needs of the local and broader community and make a positive contribution to the streetscape. The proposal also accords with the activity centre policies, which aim to identify opportunities for retail/office development in key commercial/retail precincts, and encourages the renovation/redevelopment of existing shops for shop top dwellings.

Despite the positive commentary, the Officers qualified their support by requiring the removal of the proposed fourth floor and retention of the entire front facade of the building facing Hampton Street. I believe that this is unreasonable particularly having regard to the weight the Officers appear to have placed upon the as yet "untested" Hampton Structure Plan and the now defunct DDO6 to guide its thinking. To do as the Officers are suggesting, would in my view not allow the full potential of the review site to be harnessed in line with its strategic location in a Major Activity Centre. Further, this would not be required to achieve either an acceptable urban design outcome, or prevent unreasonable amenity impacts.

1. A number of objectors claimed that a four storey development would be inappropriate or too high, or it would be the first in the area. This comment in itself is not a reason to refuse a permit. Interestingly, there is also a larger building to the west of the subject site comprising the Hampton Hotel redevelopment. It appears as three storeys(Victorian proportions ) but is clearly one level higher than the adjoining three story apartment building in Small Street. Whilst that building is in a Residential 1 Zone, nonetheless it forms a "bookend" to a higher form of development in and around the Hampton Major Activity Centre.
2. Member Keddie (VCAT Reference No. P1223/2009) recently considered a fourth level on a site diagonally opposite at 358 Hampton Street, and concluded:

I conclude that there is no reason either in policy or in the design response to the site to limit the development potential and the proposed residential yield of the review site. I therefore find the fourth floor storey acceptable.

It is not uncommon to see a difference of one or two storeys between adjacent 'buildings' in Hampton Street.

Will the proposal result in unreasonable detriment to the residential amenity of the surrounding area?

1. Some objectors expressed concern about overflow car parking due to a perceived parking shortfall for this development and about amenity impacts such as building bulk, overshadow and overlooking to residential buildings to the west and southwest of the subject site. I will address amenity issue and car parking later
2. In considering these issues, it is important to recognise that the subject site and the residential development to the west of the subject site are all in the Business 1 Zone. The test for unreasonableness is different in a business zone situation in Major Activity Centre compared to residential street in Hampton. There are different purposes of the zone and different strategic concepts that direct more intensive development and different level of commercial activity to these areas. Similarly, there is no requirement on the application to meet Rescode Standard although they sometimes are useful for comparative purposes.
3. In attempting to place some perspective of the issues at and near a residential interface I refer to the words of an often repeated decision of Martin Stuart[1]:

The owners and occupiers of allotments at such zone interfaces must both make compromises. The occupier of the residential allotment must accept a lower residential amenity. The occupier of the business zone allotment must accept a possible requirement that the height and intensity of development that may be appropriate elsewhere in the zone be softened or scaled down at the boundary.

1. In this case the subject site does not abut a residential zone. Whilst it is close to a residential zone, it abuts a residential development that is built up to the side laneway in a hard-edged form within a Business 1Zone. The applicant has compromised, to a certain degree, in its expectation for development close to the residential interface in an appropriate manner by setting the upper level of the building back 6.8 metres from that rear boundary. The building is also set back at a lower level to accommodate balconies. This seems to be is a reasonable design response in a Major Activity Centre
2. Residents living next to or inside a Major Activity Centre should temper their expectations of what is appropriate in terms of neighbourhood character and amenity standards because State and Local Planning policies direct a higher form of development of the kind proposed in this application, into the Hampton Street Activity Centre, and that this activity centre will be the focus for a change.

1. Some objectors raised concern about the increase in traffic in the rear laneway which would cause congestion. The Council's traffic engineer had conceded :

This development is expected to generate 60-100 vehicle trips per day, which can be absorbed into the local road network.

1. In evidence, Mr Walsh, an experienced traffic engineer advised:

An assessment of the traffic generated by the proposed development indicates that the development is likely to generate an additional 8 vehicle movements (per dwelling) via the right-of-way and will have no significant impact on the existing operating conditions of the surrounding road network.

Access to the car parking area is proposed via a rear right-of-way of similar to existing conditions.

1. On the basis of the existing car parking facility for the existing shop, the net increase in traffic will be generated by the dwellings. The increase is likely to be noticed at the northern end of the laneway because access from Small Street is the most convenient access point. This would seem to be an appropriate access treatment having regard to:
   • The existing standard of construction of the laneway.
   • The nature of usage of this laneway which primarily services commercial properties in a Business Zone
   • Peak traffic is likely to be "tidal" at the AM or PM time not necessarily at the peak trading times of the activity centre.
2. Residents were also concerned about the difficulties if garbage trucks attempted to pick up large numbers of rubbish bins or when vehicles loaded and unloaded in the laneway. I consider there are ample opportunities for vehicles to load and unload in Hampton Street outside peak business hours or occasional loading in the laneway behind the subject site as this seems to exist at present. The level of retailing will only marginally increase above existing levels and in reality most loading needs of the retail functions could be expected to be similar to existing conditions.
3. I consider that the garbage collection issue can be address through a waste management regime in a permit condition. I accept the evidence of Mr Walsh that garbage collection can be arranged through a private contractor who can be engaged to pick up at non peak times and also make arrangements for the collection of rubbish and recyclables in a manner acceptable to the responsible authority. It is however not a justifiable reason to refuse this application for a development in a busy activity centre.
4. During the hearing Mr Walsh referred to a revised shop parking layout that would allow for vehicles to back out onto the lane. In theory, this is a better layout for future shopkeepers and in many regards provides opportunity for additional tandem parking. The provision of additional tandem parking for shopkeepers is a positive outcome having regard to some of the objections raised by residents. However one of the disadvantages of this is that it may encourage backing out of the car spaces which would result in possible damage to the wall of the dwelling on the western side of the laneway. I note most businesses on the eastern side of the lane already undertake the practice of backing out onto the laneway. On balance I accept that the provision four additional tandem car spaces (not specifically marked as such) is a reasonable addition to the new shops.
5. Car parking for dwellings is commensurate with usual Rescode standards and was not opposed by Council. However, there was dispute about the adequacy for visitor parking. I would expect that in Business 1 Zone it would be more beneficial to take advantage of the public domain for the provision of visitor parking, such as regulated street parking or the public car park off Small Street. In any event this is likely to be at non- peak trading times for the activity centre.

1. Issues of overlooking were addressed in detailed in Mr Biacsi's evidence and by and large, I have adopted most of his suggestions although I note that there is no requirement for screening devices of the balconies to the upper level because they meet the usual 9 metre threshold distance in Standard B22 of Rescode[2]. Similarly, I have not required a screen between apartments, particularly along the Hampton Street facade because in many respects these decks are not secluded. People walking or driving along Hampton Street can quite easily view persons on one of these balconies and I see that the introduction of a screen between balconies would introduce a discordant element to the detriment of the design of the building.
2. There are internal overlooking issues which needs to be addressed as part of a condition as agreed to by the applicant and Mr Biacsi's evidence.

1. During the hearing the responsible authority raised issues about the development site being in a future heritage area. There is no Planning Scheme Amendment on exhibition, nor is there sufficient justification to warrant rejection of this proposal on heritage grounds giving the lack of any direct policy support, evidence of significant heritage status of each building or other strategic imperatives currently contained within the Planning Scheme.

1. The kitchen exhaust vent seems to be in a moderately different position on plan TP04compared to TP05 and TP 06. This is not a planning issue but the plans should be consistent to avoid problems with the exhaust shaft at a later time.

1. For the abovementioned reasons, the responsible authority's decision is set aside. The proposed development is strongly supported on State and local planning policies, and even if there was less strategic justification, the proposal is of a size and form appropriate to a Business zone that has little direct residential interface.

1. Before the development starts three copies of revised plans drawn to scale and dimensioned, 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 generally in accordance with the application but modified to show to the satisfaction of the Responsible Authority:
   • (a) All west-facing balconies on the first and second floor level screened in accordance with the requirements of Standard B22 of the Bayside Planning Scheme.
   • (b) The windows/ balconies in the internal north facing light-court adequately screened to meet Standard B22 of Rescode.
   • (c) A longitudinal section of the ramp is to be provided noting all relevant design levels, grades, transitions, main ramp lengths and headroom clearances. All signage and line markings at each access point indicating vehicles must turn right from the site to exit at Small Street, to be noted on the plans.
2. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3. All shops and dwellings must be provided with a minimum of one car parking space each on site to the satisfaction of the responsible authority.
4. Before the development starts, a Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must include:
   • (a) Details regarding waste collection to be undertaken.
   • (b) Garbage receptacles are not to be stored in the road reserve at any time.
   • (c) The use of commercial waste and recycling bins to be in accordance with the guidelines in Schedule 1 of Local Law No. 2 (Environment), Section 15.
   • (d) The collection of commercial waste and recycling to be in accordance with EPA Noise Control Guidelines, Industrial Waste Collection, Section 6.
   • (e) Details of space made available for bin storage.
5. Before the plan of subdivision is certified under the Subdivision Act 1988, 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 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 submitted with the application/other specified plans but modified to show:
   • (a) All bearings, distances, levels, street names, lot numbers, lot sizes, reserves and easements.
   • (b) Easements in favour of the applicable authority to the satisfaction of the Responsible Authority.
6. Before the development starts, a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. Construction operations on and adjacent to the site must conform to this endorsed plan. Three copies of the plan must be submitted. The plan must be generally in accordance with the plans submitted but must include:
   • (a) The location of all areas on-and/or off-site to be used for employee/ contractor parking.
   • (b) Hours of operation for building and construction.
   • (c) Delivery times (including waste collection) to and from the site.
   • (d) The ROW must be kept clear at all times.
7. All security alarms or similar devices installed on the land must be of a silent type in accordance with any current standard published by Standards Australia International Limited and be connected to a security service.
8. All pipes, heating and airconditioning plant, fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
9. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the written consent of the Responsible Authority.
10. The walls on the boundary of the adjoining properties shall be cleaned and finished and materials to the satisfaction of the Responsible Authority.
11. The proposed internal drainage is to be connected to the existing legal point of discharge.
12. Stormwater discharge is to be retained on site to the pre development level of peak stormwater discharge.
13. Basement drainage (seepage water/agricultural) must be pumped to the nearest Council Drain Pit and not be discharged to the kerb and channel.
14. The driveway / parking areas / paved courtyards / paths and 'pervious' pavements must be graded / drained to prevent stormwater discharge neither onto the front footpath nor into adjacent properties.
15. Melbourne Water Condition
    • (a) No polluted and/ or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
16. United Energy Distribution (Jemena East) Condition
    • (a) The applicant shall enter into an agreement with UEL for extension, upgrading or re arrangement of the electricity supply to lots on the plan as required (A payment to cover the cost of such work will be required).
17. Multinet Gas Condition
    • (a) The plan of subdivision submitted for certification must be referred to Multinet Gas in accordance with Section 8 of the Subdivision Act 1988.
18. Telstra Condition
    • (a) That the plan of subdivision submitted for certification be referred to Telstra in accordance with section 8 of the Subdivision Act 1988.
19. This permit will expire if one of the following circumstances applies:
    • The development is not started within two years of the date of this permit.
    • The development is not completed within two years of the date of commencement.
    • The plan of subdivision is not is not certified within 3 years of the date of this permit.
    • The registration of the subdivision is not completed within 5 years of the date of this permit

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] Martin Stuart Pty Ltd v Port Phillip CC [2000] VCAT 887

[2] There is no imperative to comply with this requirement but all agreed at the hearing that it is the most appropriate test to use for overlooking in a suburban situation.