Ms Grace Millar. She also appeared on behalf of Mr G Mahon.

Mr Geoffrey Dawson. He also appeared on behalf of Ms S Badzillous.

Mr Anthony Tyrer and Mr Jim Papanikolaou. They also appeared on behalf of a large group of objectors whose details are recorded on the Tribunal files.

1. This case concerns a proposal to construct a contemporary 2-storey residential building with 16 apartments for student accommodation. The site is on the corner of Waverley Road and Mountfield Avenue, East Malvern within an established residential area dating from c.1950 zoned Residential 1 and known by local residents as the Green Gables Estate. The Estate generally comprises a triangular precinct bounded by Waverley Road, Warrigal Road and Batesford Road. Some properties in the Estate, but importantly not the review site, are affected by a restrictive covenant limiting development to just one dwelling per lot. The Holmsglen Institute of TAFE, Chadstone Campus ("Holmsglen TAFE") is located nearby - about 200m away to the north.
2. The Council has a Student Accommodation Policy which identifies preferred locations for this form of housing. The review site is not located within one of these preferred locations. Interestingly, single dwelling covenants encumber many of the lots identified in the preferred location.
3. Karpidis Pty Ltd has brought this review following the Council's failure to determine an application within the prescribed time. The Council received 98 objections to the proposal and formed the view that had it been in a position to do so, it would have refused the permit application citing concerns with the site's location, the design of the building; amenity impacts and the internal layout.
4. Residents opposed to the proposal also expressed concerns with the adequacy of car parking, increased traffic and the potential for students to create noise and nuisance.
5. The key issues in this case are whether:
   • the location of the review site is an appropriate one for Student Accommodation in the context of State and local policies;
   • the design of the proposed building would be acceptable in neighbourhood character terms;
   • the design and layout of the building would provide future occupants with acceptable levels of on-site amenity
   • the proposed use would result in any unreasonable off-site amenity impacts;
   • car parking and access arrangements would be satisfactory.

1. The review site is located on the north-west corner of Waverley Road and Mountfield Avenue. It is an irregular shaped lot with a frontage of 25.4m to Waverley Road and sideage of 22.9m to Mountfield Avenue, yielding a total area of 794sq.m. A 1.83m wide drainage easement runs along the north-eastern boundary.
2. The site is not encumbered by any restrictive covenants.
3. A detached single storey brick dwelling occupies the land with some scattered plants and medium sized ornamental trees of no particular significance. Vehicle access is presently provided from Mountfield Avenue near the north-east boundary.
4. Surrounding land is residential. The site abuts two other properties - No. 1A Mountfield Avenue to the north-east and No. 613 Waverley Road to the north-west - both of which are developed with single storey brick dwellings.
5. As I have mentioned, the site is located within a 200m walk of the Holmsglen TAFE which is located to the north in Batseford Road. In the area more broadly, other services and facilities include a bus route on Warrigal Road (350m away), the Holmesglen railway station (600m to the north), neighbourhood activity centres in Warrigal Road and fast food outlets (400-600m to the east) and the Chadstone Shopping Centre about 1km away to the south-west. A hotel complex is also located in Warrigal Road opposite Mountfield Avenue. Peverill Park is the nearest area of public open space about 400m to the south-east.
6. Mountfield Avenue runs between Waverley Road and Warrigal Road. Parking restrictions apply in Mountfield Avenue (resident parking only) and in some other nearby local residential streets.

1. This proposal involves the demolition of the existing house on the land and its replacement with a two-storey residential building with 16 apartments for student accommodation. More particularly:
   • The apartments are designed as either a bedsit/studio (5) or single bedroom (11) with a living/dining room, kitchenette; bathroom and study nook;
   • Eight apartments are proposed on each level of the building;
   • Vehicle access is proposed from Mountfield Avenue on the north side of the site. A ramp adjacent to the easement would provide access to a basement. It would contain 5 car spaces, a communal laundry; 16 storage units and bicycle parking;
   • Each apartment has open space in the form of a balcony (5.5sq.m) or ground level courtyard (ranging in area from 10.5sq.m to 15sq.m).
   • The building's main entry faces Waverley Road;
   • The building is to be set back a minimum of 1m from the north-west boundary, 3.7m from Waverley Road, 3m from Mountfield Avenue and 6.08m from the north-east boundary. Wall heights vary from about 6.4m to 7.8m around the building;
   • Architecturally, the building has a flat roof design and external finishes include feature blockwork and stone cladding, rendered cladding and frosted glazing to balustrade screens. A blockwork fence is proposed along part of both street frontages to screen courtyards.

1. The land is included in a Residential 1 zone and no overlay controls apply. Waverley Road is in a Road Zone Category 1.
2. Although not specifically defined in the Planning Scheme, the use "Student Accommodation" would fall within the definition of "Residential Building" which in turn is included in the definition of "Accommodation". A planning permit is required for the use "Accommodation" in the Residential 1 zone.
3. Clause 32.01-4 provides that a planning permit is required to construct a residential building and the requirements of Clause 55 of the Scheme (ResCode) must be met. These requirements are that a development must meet the objectives and should meet the standards of that clause.
4. Car parking requirements are set out at Clause 52.06 of the Scheme. The standard rate for a residential building is one car space per lodging room, equivalent to 16 car spaces. As only 5 car spaces are proposed, permission is required to reduce the number of spaces required.
5. There were a number of relevant State Planning Policies referred to at the hearing and I have taken them into account.[1]
6. Applicable local policies include:
   • Clause 21.01-2 - Strategic Framework Plan;
   • Clause 21.02-2 - Urban Environment and Character;
   • Clause 21.03 - Housing;
   • Clause 21.05 - Infrastructure;
   • Clause 22.02 - Urban Design Policy;
   • Clause 22.06 - Residential Character, Amenity and Interface Policy;
   • Clause 22.08 - Student Housing Policy.
7. In broad terms, these policies support the provision of diverse housing types that is respectful of neighbourhood character. Policies also recognise the need to provide well located affordable housing and student housing close to large tertiary institutions such as Swinburne, Holmesglen and Monash
8. Council's Strategic Framework Plan identifies locations were medium density housing is encouraged, including:
   • In activity centres;
   • In mixed-use areas as freestanding residential development;
   • Large redevelopment sites where infrastructure capacity can be optimised;
   • Along arterial roads in areas where a high proportion of medium density housing already exists.
9. In balancing the impact of new development against neighbourhood character objectives, policies[2] seek to achieve a high standard of urban design and:

To maintain the distinctive character of Stonnington's residential areas and ensure that use and development is consistent with the character, scale, appearance and amenity of the area.

1. The Student Housing Policy is of particular relevance to this case and I will discuss it in more detail shortly. Its Objectives are:
   • To channel purpose-built student housing into locations which have good access by foot or public transport to the tertiary institutions which generate the demand for this type of housing, and which offer high accessibility to relevant facilities such as shops, community facilities and appropriate services.
   • To provide on-site car and bicycle parking to meet anticipated student needs.
   • To ensure that the design, mass, scale, and character of student housing is appropriate to its location and sensitive to its impact on surrounding properties.
   • To ensure that the layout, standards, and facilities for student housing provides a positive living experience for students.
   • To ensure that the layout of the site and the design of buildings contributes to a high level of personal safety and security for student occupants.
   • To ensure that appropriate management is in place to minimise negative impacts on surrounding properties, and to create a positive and safe living environment for students.
   • To ensure that student housing is only occupied by bona fide tertiary students.
2. This policy is focused around 7 elements, namely Location; Traffic and Parking; Neighbourhood Character and Amenity; Internal Layout and facilities; Conversion of Existing Buildings; Management and Keeping Student Housing for students. The Council's Student Housing Study (October 2006) is a reference document under Clause 22.08-5 of this policy.
3. Clause 65 sets out decision guidelines that must be considered, as appropriate, when considering any application for permit under the scheme. Of relevance to the issues in this case are the State and Local planning policy provisions referred to above, the purpose of the zone and other relevant controls, the orderly planning of the area and any effect on the amenity of the area.

1. The parties at the hearing of the application for review relied on both written and oral submissions. A number of photographs, plans and other documents were tendered to the Tribunal and are retained on file. I also conducted two inspections of the site and its locality. I set out my findings in relation to the key issues in this Application, having regard to these submissions, the material presented at the hearing, my inspection of the site and surrounds and the policies, objectives and decision guidelines of the Scheme. I also inspected two student housing developments in Stonnington[3] opposite the Caulfield Campus of Monash University.
2. Before turning to the key matters for consideration in this case it is necessary to say something about the need for student housing.
3. It was Mr McDonald's evidence that there is high demand for student housing in the area and demand is continuing to grow, particularly from international students. Of the 40,000 students enrolled at Holmesglen TAFE in 2006, 816 are international students. His firm, Student Housing Australia (SHA) is a property management group specialising in student housing. He advised that at the time of the hearing, there were 48 applicants on SHA's waiting list for accommodation within the area serving the campuses of Monash Caulfield, Monash Clayton and Holmesglen TAFE.
4. No purpose built student housing is presently available in close proximity to Holmesglen TAFE and Mr Mc Donald explained that students are at a distinct disadvantage when seeking accommodation in the private rental market. He explained the difficulties confronting many students seeking to enter the housing market for the first time, particularly international students, in the absence of appropriate references, a past rental history, Australian residency and locally based support networks. Coupled with recent hikes in the cost of rent, it was Mr McDonald's evidence that the need to provide purpose built student accommodation is becoming increasingly important.
5. I accept Mr McDonald's evidence that there is an existing and growing need for this form of housing. Relevant also is the Council's decision to commission its Student Housing Study (October 2006) and the introduction of the Student Housing Policy in the Stonnington Planning Scheme - the former after Council received five permit applications in a twelve month period.[4]
6. While I find that there is likely to be a need for this form of housing, the potential off-site impacts and the development's fit in neighbourhood character terms still requires careful consideration. That much is clear by the policy framework that has been established to provide guidance to decision makers when considering proposals for student housing. I say this being mindful also of the site's location outside the preferred area for student accommodation - an issue to which I now turn.

Is the site's location appropriate for Student Accommodation?

1. There was considerable debate about the Council's Student Housing Policy which identifies preferred locations for such housing in Stonnington. As the review site is not within one of the policy's preferred locations, objectors and the Council submitted that this is one reason why I should reject this proposal.
2. Preferred locations proximate to Holmsglen TAFE are identified on the west side of Warrigal Road, generally between the railway line and Waverley Road. These properties include both dwellings and some commercial properties. All but one of the dwellings[5] is affected by a single dwelling covenant[6] and I was told that the commercial properties are not affected by the covenant.
3. Mr Tweedie submitted that the presence of single dwelling covenants, and the process required to vary or remove them, severely limits the opportunity to provide student accommodation within the policy's preferred area. He contended that the policy, insofar as preferred locations is concerned, was prepared on a mistaken basis, submitting that until this permit application was made, Council seemed apparently unaware of the covenants. He argued that there is no evidence that the existence of these covenants was brought to the attention of the Independent Panel ("the Panel") convened to hear submissions in relation to the then proposed policy under Amendment C61 to the Stonnington Planning Scheme. Nor, he submitted, was this information conveyed to the Minister for Planning or his Department when the Amendment was submitted for approval.[7] Had it been, he surmised that the map identifying preferred locations in the policy would now be in different terms.
4. Mr Tweedie also submitted that the policy should be applied in a commonsense, intelligent and flexible way - used as a tool in the exercise of discretion - with consideration to the achievement of policy objectives. This approach he argued, is to be contrasted with its slavish application as a blunt instrument with the potential to create unsatisfactory outcomes.
5. Applying the policy in the manner he advocated, Mr Tweedie submitted that the site is otherwise consistent with the policy's locational objectives - it is well located in relation to Holmesglen TAFE, is not constrained by any overlays or other environmental features, has an abuttal with a main road and is reasonably well located near activity centres, services and public transport including fixed rail and bus services. This was a view also expressed by Ms Petersen.
6. Ms Morris acknowledged that the site's location just 200m away from Holmsglen TAFE, is a location consistent with the broad housing needs strategy in Council's Municipal Strategic Statement at Clause 21.03 which "supports suitable student accommodation close to large tertiary institutions such as Swinburne, Holmesglen and Monash". She explained, however, that the preferred locations under the Student Housing Policy seek to implement the Council's Strategic Framework Plan at Clause 21.01 - the latter which identifies specific areas for medium density housing on a municipal wide basis. Ms Morris submitted that the site has none of the preferred attributes at this broader level - it is not a large strategic redevelopment site. Nor is it in an activity centre, on an arterial road where a high proportion of medium density housing already exists or in a mixed use area[8].
7. Further, unlike the preferred locations for student housing under the policy at Clause 22.08, the review site is not located on the principal public transport network nor is it located adjacent to public transport - a locational attribute endorsed by the Panel in its report on Amendment C61[9].
8. Notwithstanding, Ms Morris contended that if I find that the site's location is acceptable, the proposal should not be eligible for any "concessions" that might otherwise apply to a site within a preferred location. To this end, the following comments of the Panel[10] were said to provide appropriate guidance when considering the acceptability of such a proposal:

Finally, while it is reasonable to highlight preferred areas in policy, the designation of these areas should not preclude other opportunities that satisfy neighbourhood character and urban design objectives, criteria relating to location relative to public transport and activity centres and residential development standards.

1. I will deal with each of these matters in turn.
2. I begin with the role of the single dwelling covenants. I do not consider that the policy, in terms of preferred locations, should be set aside because of these covenants or because some properties are commercial in nature. I make this finding for the following reasons.
3. Firstly, I am not persuaded that the establishment of student housing on any of the sites within the preferred area could never be achieved. While the removal or variation of a covenant may add a layer of complexity to the planning process, I am simply unable to conclude that a student housing proposal on a covenanted site would never succeed. Ultimately, the outcome of such a proposal would depend upon the specific facts and circumstances at play including the particular merits of the proposal, the number and location of beneficiaries to the covenant and their views on any proposal. Those matters are not presently before me.
4. Secondly, it is relevant that there are a number of properties within the preferred area that are not subject to a restrictive covenant. They include commercial properties between Mountfield Avenue and Batesford Road zoned Business 2, the dwelling at No. 650 Warrigal Road and properties between Batesford Road and the railway line. In relation to the latter, I note that the land is zoned Public Use 2 (Education) adjacent to Holmesglen TAFE. While I accept that these sites are limited in number, their zoning would allow permit applications to be made for student housing.
5. In relation to these commercial properties, I acknowledge Mr Tweedie's submissions that economics, existing tenure and nature of the commercially zoned properties, including the McDonald's fast food outlet on the south-west corner of Batesford and Warrigal Roads, may at the present time seem to impede the realisation of Council's policy in locational terms. I am not however persuaded that the policy (in terms of its locational preferences) should be set aside on the basis of speculating what might or might not be achieved on these sites. The policy expressly refers to locating student housing within Business (and Mixed Use Zones). Moreover, land may change ownership over time. Similarly economic circumstances can and often do change.
6. Ultimately, if this policy fails to deliver the strategic outcomes Council is seeking, the Council, in its capacity as the planning authority, has the responsibility to change it.
7. In light of these findings, should then this proposal be refused because it is not within a preferred location for student housing?
8. I would not refuse the grant of a permit solely on the basis that the review site is located outside the preferred area. I say this noting that Council's policy discourages the development and use of sites for student accommodation outside the preferred area.
9. As foreshadowed by the Panel in its report on Amendment C61 "while it is reasonable to highlight preferred areas in the policy, the designation of preferred areas should not preclude other opportunities" for student housing - albeit with the need for such locations to satisfy other relevant design and residential amenity criteria.
10. Further, the first decision guideline at Clause 22.08-4 requires decision makers to consider:
    • The extent to which the use and development meets the objectives and requirements of this policy.
11. It contemplates that some proposals may depart from the policy to some greater or lesser extent. Even if it didn't, I agree with Mr Tweedie's submission that policy should not be applied slavishly. Ultimately, in deciding whether to grant a permit, discretion is to be exercised taking into account the objectives and requirements of the policy. The first policy objective deals with locational considerations. It reads:
    • To channel purpose-built student housing into locations which have good access by foot or public transport to the tertiary institutions which generate the demand for this type of housing, and which offer high accessibility to relevant facilities such as shops, community facilities and appropriate services.
12. I consider that this site largely meets this objective. It is conveniently located just 200m from Holmesglen TAFE. Such a distance also meets the first part of the Council's policy for preferred locations which refers to a distance of 400m. It is true that access to the train station, bus route and convenience shopping facilities are further away. However, in terms of the distance from these other facilities and services, the site is no worse than some others within the preferred policy area. Importantly, I regard the distance from these facilities and services as reasonably convenient being within 400m to 600m away - equating to a 5-8 minute walk.
13. I give primacy also to the site's close proximity to Holmsglen TAFE, having taken into account Mr McDonald's evidence that this is one of the most important considerations for students. I have also taken into account the Council's Student Housing Study[11] which observes that:

The most successful developments have been those close to and linked with a tertiary campus, and in particular the Monash Caulfield Campus. This proximity is an asset for serious and hard-working students as they can walk easily to and from their campus.

1. The review site has several other attributes that lead me to find that in locational terms, it is suited for student accommodation or indeed some other form of medium density housing. It is a corner lot with a frontage to a main road (in a Road Zone Category 1). It also has just two abuttals with neighbouring residential properties. Only one of those abuttals is to a backyard.
2. Despite these favourable locational attributes, I agree with Ms Morris' submission that the site should not be eligible for any "concessions" that might otherwise apply to a site within a preferred location. I find that the site's context is more sensitive than its preferred Warrigal Road counterparts and any development on this site must still meet other policy imperatives including design outcomes that are contextually appropriate and respectful.

The design of the proposed building would be acceptable in neighbourhood character terms

1. Ms Morris and objectors were critical of the building's design, arguing that it has an institutional appearance and form and uses materials and finishes that would not be in keeping with the appearance of surrounding development. Of particular concern was the relationship with the modest form and scale of housing in Mountfield Avenue.
2. The bulk and form of the building - especially at the two interfaces with neighbouring dwellings was said to be excessive. Mr Tyrer and Mr Papanikolaou submitted that the development would have an unacceptably dominating visual impact when viewed from habitable room windows of the dwellings at No. 613 Waverley Road and 1A Mountfield Avenue and from the entry to this latter dwelling. The building's setbacks from side, front and rear boundaries were also said to be problematic.
3. Responding to these arguments, Mr Tweedie submitted that the building will inevitably look different to its neighbours given the nature of accommodation it provides - but that of itself is not adequate reason for a refusal.
4. Ms Peterson drew a distinction between the character of Waverley Road and that of Mountfield Avenue. It was her evidence that the Waverley Road interface is more robust, being a main road environment characterised by a number of two-storey multi-dwelling developments and a limited number of other non-residential uses including a petrol station at the junction of Waverley and Batesford Roads and the electricity terminal station further west in Waverley Road. In Mountfield Avenue, the character was said to comprise more traditional housing forms from the 1950's. In Ms Peterson's opinion, the building responds appropriately to each of these interfaces and its siting allows it to be read as a Waverley Road building. In particular, the presence of the driveway/ramp and 1.8m landscape strip between the proposed building and the dwelling at No. 1A Mountfield Ave was said to provide a clear and distinct separation between the contemporary style and form of the proposed building, this neighbouring property and the streetscape character of Mountfield Avenue.
5. Ms Peterson also regarded the 3m setback of the building to Mountfield Avenue as appropriate, taking into account the site's corner location and the side setback of the dwelling opposite (No. 617 Waverley Road) which was said to be 2.4m from Mountfield Avenue.
6. In forming my view about these issues, I must firstly say that despite submissions made by objectors to the contrary, I find that in-principle, there is nothing inherently unacceptable about the insertion of a two-storey building into a suburban residential context like this. That view has been expressed on many occasions by various divisions of the Tribunal. I say this acknowledging that there is a fairly consistent pattern of single storey housing in Mountfield Avenue. That being said, the more important consideration is whether the building has been appropriately designed to respond to the particular features of the area that characterise this part of Stonnington. That consideration applies whether the building is for accommodation of the kind proposed or indeed any form of housing.
7. As a matter of principle, development should always be designed with consideration to its context - it must be appropriate to the neighbourhood and the site and respect the existing neighbourhood character[12]. These are matters to which decision makers are taken under the first ResCode objective and Standard at Clause 55.02-1. Thus, while I accept arguments that housing of this kind may by necessity be different it must still be respectful - particularly given its location outside the preferred policy area as I have mentioned. I find that this proposal is not respectful of its context for reasons I will now explain.
8. I will deal firstly with the proposal's interface with the streetscape followed by the interfaces with its two residential neighbours.

1. In Waverley Road, I agree with Ms Peterson that the character is more mixed than in Mountfield Avenue and the development response can be more robust to some extent.
2. In Mountfield Avenue, I observe that buildings are fairly homogenous in appearance and form. There are many intact examples of cream and red brick 1950's dwellings with tiled roofs set within established spacious garden surrounds. Front setbacks are typically generous and consistent - in the immediate context they range from 7.4m to 9.7m. Front fencing is characteristically low contributing to the sense of spaciousness.
3. While I consider that in broad terms the proposed building will sit reasonably comfortably in Waverley Road (except for an oblique view of the north-west elevation from the south - a matter to which I will return), I am not persuaded that it has adequately responded to the streetscape character of Mounfield Avenue. I make this finding for the following reasons.
4. The uniform setback of the building, together with its height, form, siting of balconies and front fencing in Mounfield Avenue is not contextually responsive. I consider that the setbacks of the dwelling on the opposite corner of Mountfield Avenue and Waverley Road do not lend support for the design response proposed. There are only two elements of this opposite that come to within 2.4m of the street - with the remainder of this dwelling setback about 4.5m. It is also a single storey building with gable ends that in my view do not have a dominant visual impact.
5. In contrast, while the wall of the proposal's Mountfield Avenue elevation is setback 3m and complies with the numeric ResCode standard, it fails to meet the neighbourhood character objective at Clause 55.02-1. The 6.3m height of the two storey wall at this interface extends for a distance of 13m. Balconies, balustrading and wing wall screens between balconies are sited within 1.5m of the street. Front fencing on the boundary line is proposed to provide privacy to ground level courtyards. It would be of solid masonry construction, extending the full length of this elevation at heights ranging from 1.4m to 1.8m. In light of the consistent low scale, spacious qualities that otherwise characterises housing in Mountfield Avenue, I find that the proposed development is not respectful of these qualities and would have an unreasonably dominating streetscape impact. It would have a hard edge quality that would be jarring in the local neighbourhood context.
6. Contributing to my concerns is the appearance of the north-east elevation when viewed obliquely from the street. While I accept that the setbacks of this building from the north-east boundary are reasonably generous, this elevation would be highly exposed and dominating when viewed across the basement ramp from vantage points diagonally opposite in the street where there is a bend in the road and the land rises.
7. This side of the building comprises sheer two-storey walls on the same plane. The elevation extends for a distance of more than 17m and the upper level footprint follows the alignment of the ground level footprint below. I do not consider that this elevation is sufficiently articulated even with varied external materials proposed. Fundamentally, its mass, height and form with sheer 2-storey walls is substantial and too bulky - uncharacteristic of other development in this street. I consider that it would have an institutional appearance - particularly with its external stair case which would be highly exposed from the street.
8. In short, I find that the proposal would be contrary to planning scheme policies such as those at Clause 22.06 which provide that:

It is policy that when considering an application for a use or development, the applicant demonstrate that:

• ... The proposed development reflects, maintains and enhances the predominant scale and built form character of the surrounding area.
• The proposed use and development maintains and enhances the overall amenity of the surrounding area, particularly the protection of residential properties from unreasonable:
• ... Visual bulk.

1. In any redesign, the upper level should be further recessed from the level below and a greater overall setback should be provided from the street taking into account the impact of any balconies and side screens within the setback space.

1. Like the streetscape impacts I have just described, I have similar concerns with the visual impact of the north-east elevation when viewed from three habitable room windows[13] of No. 1A Mountfield Avenue that face the site. I am not persuaded that the ability to provide some planting along the easement presents an appropriate solution. Importantly, a building that is designed to sit respectfully in its context should not have to rely upon landscaping to screen it and to render it acceptable in neighbourhood character terms. I find that this elevation is not acceptable in its own right. I also find that the side setback does not overcome the difficulty I see with this side of the building.
2. I do however find that the development would not result in any unreasonable impacts when viewed from the back yard of this property, given the configuration of the two allotments and the intervening location of the neighbouring garage.
3. In any redesign, I am of the view that the upper level needs to be set back from the level below so that it transitions down to a single storey form. This technique has been used with other recent multi-unit developments - such as the developments on the corners of Shrewsbury and Waverley Roads and Rotherwood Drive and Waverley Road.

1. I am satisfied that the design, height and form of that part of the north-west elevation comprising Units 7, 8, 15 and 16 would not have unreasonable visual impacts when viewed from the backyard of this neighbouring property. It is reasonably well articulated and its siting and bulk would not be unacceptably intrusive.
2. I do however have some concerns with the bulk and scale of the southern part of this elevation comprising Units 6 and 14. This part of the building has setbacks of 1m to 2m and a height ranging from 7m to 7.6m located opposite a bedroom window[14].
3. The wall setback 1m from the boundary opposite the neighbouring window has a height of about 7.2m and does not comply with ResCode standard B17 (Side and rear setbacks) and standard B19 (Daylight to existing windows). Applying these respective standards, setbacks of 2.29m to 2.4m would be required.
4. The southern-most portion with a 2m setback rises to a height of 7.6m, compared with a ResCode compliant setback of 2.69m under standard B17.
5. Although on one view a bedroom might be regarded as less sensitive than a main living area, I nonetheless find that the appearance of this part of the elevation would be visually dominating from inside this neighbouring dwelling and would unreasonably diminish daylight access to the existing window.
6. The southern part of this elevation when viewed obliquely across the front yard of No. 613 Waverley Road would also have a dominating impact rising to a height of 7.6m, setback just 2m and sitting above this neighbouring dwelling. The upper level footprint, like the north-east elevation is to have the same setbacks as the level below. While not as problematic as the north-east and Mountfield Avenue elevations, the design of this part of the building would nonetheless have an uncharacteristic vertical emphasis.
7. Although these setbacks could be modified to achieve compliance with standards B17 and B19, I think that this part of the elevation needs to be revisited more carefully so that its verticality and bulk is further diminished. I say this given its proximity to and the modest form of the neighbouring dwelling together with the need to meet Neighbourhood character and Design detail objectives at Clauses 55.02-1 and 55.06-1.

1. A final matter concerns the proposed palette of materials and finishes including the use of blockwork to some walls (in part) and front fencing. I am not overly troubled by the use of this material if it were to be used more sparingly than is presently proposed and in a colour that is respectful of the traditional cream and red colouring of brickwork of surrounding houses.
2. I also add that I have no difficulty accepting a contemporary design response. Replication of existing housing styles or forms is not warranted but a building which respects the sum of its contextual parts is.

Would the design and layout of the building provide future occupants with acceptable levels of on-site amenity

1. One of Council's reasons for refusing this proposal is that:
   1. The internal layout of the proposed units is inconsistent with the provisions of the Student Housing Policy in respect of amenity, function and safety.
2. Ms Morris explained that Council has particular concerns with the small size of some balconies which are 5.5sq.m in area and less than 8sq.m described in ResCode standard B28. While the introduction of a common room in the basement as recommended by Ms Peterson would supplement these areas, as well as providing an opportunity for student interaction and a sense of community, Ms Morris submitted that the amenity of this room is poor. Because of its siting below ground, daylight is limited to a light shaft at one end of the room. As access to it is also via the basement, its attractiveness for a range of activities as encouraged under Council's student housing policy and likelihood of use was questioned.
3. The position of the laundry in the basement was also said to be problematic from a security perspective because passive surveillance of this area would be minimal. As it is not within a "high movement area" Ms Morris submitted that this would be contrary to Council's Student Housing Policy.
4. Council's urban designer also expressed concerns with some matters of detailed design within the units themselves, such as the placement of kitchens next to sleeping areas and the location of desks next to the toilet. These design shortcomings were said to be a by-product of trying to squeeze too many units onto the site.
5. Ms Millar and Mr Papanikolaou variously supported the Council's concerns.
6. In response, Ms Peterson and Mr McDonald expressed the opinion that these units, which range in area from about 29sq.m to more than 33sq.m are at the generous end of the spectrum for student housing and would provide a high level of amenity.
7. Although Ms Peterson recommended the introduction of a common room, it was her evidence that there is less of an imperative to provide such facilities for a project of this size. Mr McDonald also held the view that such common areas do not typically attract a high level of use.
8. On the question of security Mr McDonald explained that an electronic security system would be in operation so that only students, their visitors or other permitted persons would be allowed inside the building. While vehicular and pedestrian access to the basement is presently unrestricted from the driveway, under cross-examination from Mr Papanikolaou, Ms Peterson agreed that a garage door should be provided to restrict access. It was Ms Donald's evidence that a door could be provided at the bottom of the ramp[15].
9. I find that the internal amenity of the units is or could be made to be acceptable with some modifications to the plans.
10. Firstly, I agree that the overall size of the units is acceptable for student accommodation. In broad terms, I am also generally satisfied with the size of private open space areas for this form of accommodation with some exceptions that I describe below. Were I minded to grant a permit, I would however require the following changes to the unit layouts as follows:
    • provide larger desk spaces and place them away from toilets;
    • in relation to the studio apartments, reconfigure kitchens away from beds - they are presently separated by little more than 1m;
    • in relation to the 1 bedroom apartments, include additional or modified windows that are openable for ventilation but oriented and designed to limit overlooking into neighbouring dwellings (e.g. within the wing elements facing the street);
    • the provision of deeper balconies to Units 15 and 16 to about 2m (presently 1.5m wide) to minimise their sense of enclosure by the high glazed screen required to limit overlooking into the backyard of No. 613 Waverley Road.
    • the provision of larger areas of private open space for Units 7 and 8 to take advantage of their ground floor location, perhaps in the order of 8sq.m to 12sq.m.
11. In relation to the common room, I am of the opinion that it is appropriate to provide a suitable break-out space for students, allowing the opportunity for group study, socialising and to foster a sense of belonging and well being. Such outcomes are contemplated by Council's Student Housing Policy which has recurring objectives that seek to create a "positive and safe living environment for students". At the present time, I am not persuaded that the location of the common room nor its design would advance these objectives. I am primarily concerned about the amenity it would offer students but I also hold some reservations about its isolated location. Despite security measures proposed on the site, such spaces must also be perceived as safe. The common room is, and upon my questioning Ms Peterson agreed, an afterthought, rather than an integral part of the design. It would not be consistent with Council's student housing policy that seeks to:
    • Ensure internal common areas are located in 'high movement areas' to achieve passive surveillance.
12. If common areas are to be used and properly enjoyed, they must be designed as inviting spaces that feel and are safe. In any redesign, consideration should also be given to visually and or physically linking the common room with outdoor areas (and high movement areas) rather than being accessible only from a basement with minimal daylight access, the absence of an outlook to outside areas and minimal passive surveillance.
13. In relation to the laundry, although I find that its location in the basement is not fatal to this proposal, I nonetheless hold the view that in any redesign it should be placed in a less isolated location.

Would the proposed use cause any unreasonable off-site amenity impacts?

1. Mr Tyrer and Mr Papanikolaou expressed particular concerns with the potential for nuisance and a loss of residential amenity arising from the proposed use. They submitted that antisocial behaviour including brawls and youths congregating in the street would cause noise disturbance, particularly at night. Other impacts described include littering in streets and the dumping of hard waste on nature strips, abandoned shopping trolleys, washing visible from public areas and accumulation of rubbish around bin storage areas on the site causing smells and eyesore. It was also submitted that proposed garden areas would not be maintained to an acceptable standard.
2. Residents explained that some of these impacts were already being realised which they attributed to the number of students either passing by or living in private rental housing and that this proposal, if approved, would intensify these problems. Photographs of private houses said to be rented by students nearby and other purpose built student accommodation were tabled in support of their claims.
3. On the other hand, Mr Tweedie submitted that proposals like this are relatively benign neighbours and:

... to the extent that impacts on amenity are possible, they can be properly controlled by appropriate permit conditions; conditions which are, ironically unable to be used if an existing dwelling is simply let to a student which, it appears, is already happening in this neighbourhood.

1. I understand the concerns raised by objectors about the potential for there to be off-site impacts. I have however formed the view the proposed use is unlikely to result in any unreasonable loss of amenity or give rise to personal safety risks for neighbours. In reaching this finding, I have taken into account:
   • This proposal if approved, would be subject to various controls and a management regime that would be given effect through conditions on any permit issued. These would include a requirement for a manager and/or lead tenant (permanently residing on the site), a waste management plan and a further management plan providing for such matters as house rules, expectations as to the behaviour of students and visitors, maintenance and cleaning procedures.
   • The consistent findings on this issue by other divisions of the Tribunal[16], the Independent Panel convened to hear Amendment C61 and by the authors of the Council's Student Housing Study that "good management is the key to responsible student housing and maintaining local amenity"[17].
   • The relatively small size of the proposal accommodating about 16 students.
2. Were I minded to grant a permit, in addition to appropriate management conditions, I would also require relocation of the bin storage area from the front setback to the basement.

Car parking and access arrangements would be satisfactory.

1. Mr Tyrer and Ms Millar submitted that the proposed number of car parking spaces would not be adequate and this would result in overspill parking in Mountfield Avenue - despite the existence of permit parking restricted to residents only. Objectors contended that illegal parking already occurs within Mountfield Avenue and this would worsen. Alternatively, if increased kerbside parking in Waverley Road occurred as a consequence of this proposal, it was said that this would create traffic safety problems by limiting sight distances for motorists exiting from Mountfield Avenue.
2. On a related issue, Mr Dawson questioned the economic viability of this proposal and the likelihood that if it fails, an alternative use would be sought for the building. The consequences of this was said to be problematic in light of the proposed provision of only 4 or 5 on-site car parking spaces.
3. Residents also expressed concerns with increased traffic volumes in Mountfield Avenue and the impact this would have on residential amenity.
4. I will deal with each of these matters in turn.

1. I find that a parking rate of 0.25 spaces per bed would be adequate to cater for likely parking demand generated by this proposal.
2. In making this finding, I firstly note that the Council did not take issue with the number of car parking spaces proposed. Its policy recommends the provision of 0.25 spaces per student bed. This equates to 4 spaces. Five spaces are proposed but if modifications to the basement were to be implemented (including the provision of the common room) only 4 car spaces would remain. Even with the reduced number of spaces, the proposal would comply with this policy. I would find this lesser number of spaces acceptable.
3. Secondly, I accept Ms Donald's evidence that the provision of 0.25 spaces per bed is consistent with empirical assessments undertaken by her firm of other student accommodation developments.
4. Moreover, I find from my review of other Tribunal decisions for student housing that car parking rates of between 0.1 to 0.25 are consistently applied[18] and are found to be adequate to cater for likely demand.
5. If an alternative use were to be sought for the site at some future point in time, it would be necessary for a new permit application to be sought and consideration given to the likely parking implications at that time.
6. Thirdly, I have taken into account that this accommodation may be occupied by international students who typically have low rates of car ownership. Even if this were not to occur, I would be satisfied that the site's location just 200m from Holmsglen TAFE, 600m from the train station and within 350m of a bus route on Warrigal Road lend support for the parking rate proposed.
7. Fourthly, even if there were to be some parking in Waverely Road, which might be attributed to visitor demand, I would be satisfied that sufficient parking is available in this street. My observations of parking availability during both of my site visits in the middle of the day were that there is moderate demand for parking in Waverley Road but that spaces are readily available. My observations are consistent with Ms Donald's evidence.
8. Finally, while I appreciate that residents may be experiencing problems with cars parking illegally in Mountfield Avenue or across the footpath, it may be that Council needs to more rigorously enforce parking restrictions in the street. I consider however that it would be unfair on the permit applicant to refuse this proposal on the basis that other road users occasionally park illegally in the street.

1. I find that the proposal would not result in any unreasonable traffic impacts in Mountfield Avenue. I doubt that any increase in traffic volumes would be readily discernible given the low numbers of on-site car spaces proposed and the typically low traffic generation rates associated with uses of this kind. Nor am I persuaded that this proposal would lead to dangerous intersection conditions at Waverley Road.
2. I am also satisfied that the proposed point of access to the site is appropriately located, noting also Vic Roads' objection to an access point in Waverley Road.

1. Although this site is located outside one of Council's preferred policy areas for student housing, it has a number of positive attributes that make it suited for this purpose. The design of the present proposal does not however adequately respect the existing scale, form and character of housing in this neighbourhood, particularly in Mountfield Avenue. It is primarily for this reason that this proposal fails. If an alternative development is to be pursued, a less intensive proposal may be necessary, taking into account neighbourhood character considerations but also the other concerns that have been identified in relation to internal amenity.
2. For the reasons I have set out, the decision of the Responsible Authority is affirmed.
3. I will direct that no permit is to issue.

[1] These statewide policies include Clause 11 (Introduction), Clause 12 (Metropolitan Development); Clause 15.12 (Energy Efficiency) and Clause 16.02 (Housing).

[3] 60 Waverley Road and 903 Dandenong Road, Caulfield East.

[4] Stonnington City Council - Student Housing Study - Page 3.

[5] Upon my examination of covenant particulars provided to me by Mr Tweedie, four covenants were removed from properties by order of the Supreme Court dated 1 December 1982. One of these is No. 650 Warrigal Road which is located within Council's preferred area for student housing. This site is developed with a single dwelling. I am unable to determine the location of the other three properties based upon the limited material provided to me.

[6] The covenant provides that "not ... more than one private dwellinghouse with outhouses and garage" is to be built, constructed or erected on the encumbered lots.

[7] Department of Sustainability and Environment as it was then known.

[9] A finding consistent with the Report of the Advisory Committee on Student Housing in Melbourne - December 1997. Dimity Reed (Chair) and Lester Townsend.

[12] I note that in this instance the Stonnington Planning Scheme does not express a preferred character for this area. It is the existing neighbourhood character that must therefore be respected. Council has however prepared a draft Neighbourhood Character Study for ultimate inclusion in the Planning Scheme through Amendment C67 which is awaiting Ministerial authorisation. In light of this Amendment's status, I am unable to treat the Neighbourhood Character Study as a seriously entertained policy.

[13] Two bedroom windows and a lounge room.

[14] This window is incorrectly described on the plans as a non-habitable room window.

[15] The appropriateness of this arrangement was not examined in any detail at the hearing.

[16] See for example CBG Architects Pty Ltd v Whitehorse CC [2007} VCAT 134; Glenferrie Developments Pty Ltd v Stonnington CC [2006] VCAT 832;

[17] Page 13 - Stonnington City Council - Student Housing Study October 2006.

[18] See for example Melbourne International Student Accommodation v Whitehorse City Council [2003] VCAT 1619 cited with approval in Pembroke Development Corporation Pty Ltd v Boroondara City Council and Ors [2004] VCAT 605 at paragraphs 52-53.