La Strada Investments Pty Ltd v Moreland CC [2010] VCAT 1274

1. The permit applicant is to advise the Tribunal, the Responsible Authority, Ms Lasslett and Mr Fearnside by 30 days from the date of this order that it intends to prepare and circulate amended plans in accordance with these orders.
2. A further hearing of this case is listed for 9 November 2010 for one day if required.
3. By the close of business on 30 September 2010 the applicant is to file with the Tribunal and serve on each of the parties who appeared at the hearing of this case on 28 and 29 June 2010 (including the Responsible Authority) a copy of plans which demonstrate the following:

1. A building that is no higher than eight storeys and comprises a podium of no more than four storeys and recessed upper elements. 2. The deletion of the external structures to support vegetation.

1. A greater articulation to the Lygon Street façade through the inclusion of balconies and recesses to apartments.

1. A greater articulation to the east and south façades that improves the appearance of these facades to the local community. 2. An indicative layout of the remaining land in the title of the review site illustrating building envelopes for commercial or residential uses, road network and pedestrian access to illustrate that pedestrian links can be provided between Lygon Street and Methven Park, and vehicle links between Leinster Grove and Albert Street. 3. Montages showing the revised development as viewed from the northern end of Leinster Grove. 4. An increased proportion of dwellings with private open space in the form of terraces and balconies, and a reduction in the number of 'wintergardens'. 5. A reduction to approximately 25 percent in the number of dwellings that have bedrooms that rely on borrowed light. 6. An increased number of two bedroom dwellings.
2. By the close of business on 30 September 2010 the applicant is to file with the Tribunal and serve on each of the respondents who are parties but did not attend the hearing a letter informing them that amended plans have been prepared and are available for inspection at the council offices. The letter should also advise these parties how to make a submission as set out below.
3. Any party must advise the applicant, the registrar of the Tribunal and the Responsible Authority in writing by the close of business on 15 October 2010 of the following matters:
   • Whether they oppose the modified plans.
   • Whether the party wishes to be heard on the 9 November 2010 in relation to its opposition to the modified plans.
   • In the event they wish to be heard, such written statements must set out the ground(s) upon they wish to rely.
4. In accordance with these directions if no opposition is received from any party other than the applicant, it will be assumed that those parties do not oppose the modified plans.
5. The Responsible Authority is to provide to the Tribunal the permit applicant and the other parties by the close of business on 5 November 2010 revised draft planning permit conditions relevant to the amended plans.

Mr T Biles, town planner and urban designer, Message Consultants Pty Ltd.

Mr R Symons, transport consultant, Ratio Consultants Pty Ltd.

Mr P Brook, architect, Peddle Thorpe provided at the commencement of the hearing an overview of the project's design.

Ms L Hicks and Ms A Skipper, solicitors, DLA Phillips Fox.

Mr C Czarny, urban designer, Hansen Partnership Pty Ltd

It is proposed to construct an 11 storey apartment building over a basement with 4 levels. The proposed uses in the building include two retail premises at ground level fronting Lygon Street and 165 apartments. The apartments include bedsits, one bedroom apartments and two bedroom apartments. Parking for 151 cars and 49 bicycles would be provided in the basement.

Application under Section 79 of the Planning and Environment Act 1987.

Clause 34.01 - 1 (use of land for dwellings in B1Z as entry is greater than 2 metres)

Clause 34.01-4 (Construct a building or carry out works in B1Z)

Clause 52.29 Land adjacent to a road zone (category 1)

Clauses 11, 12.01, 12.05, 12.06, 12.07, 12.08, 12.09, 14, 15.05, 15.06, 15.12, 16.02, 16.05, 17.01, 17.02, 18.01, 18.02, 18.03, 18.10, 19.03,

Clauses 21.03, 21.04, 21.05, 22.02, 22.04, 22.10, 22.11.

The review site is located on the east side of Lygon Street, approximately 50 metres south of Albert Street. The review site is rectangular in shape, with a frontage to Lygon Street of 35 metres, a depth of 43.68 metres and an area of 1,569 square metres.

The review site forms part of a larger site that extends to the east. The larger site is generally rectangular and has an area in the order of 6,000 square metres. The review site and the larger site presently comprise one title, although the remainder of the land is included in the Business 3 Zone. The site is occupied by single storey industrial buildings. The land is flat and is not constrained by any special features or encumbrances.

The review site forms part of the Brunswick activity centre. This part of the centre is characterised by a mix of retail, wholesale, manufacturing and office land uses in commercial buildings. Land to the southeast fronting Leinster Grove is developed for residential and Methven Park is also located to the southeast of the land.

We inspected the site and its environs on 8 July 2010, including an inspection from the roof terrace of Mr Fearnside's residence, and the immediate environs of Ms Laslett's property. We also inspected an apartment with a wintergarden arrangement located in the Northbank development at 525 Flinders Street, Melbourne.

Metaxas Architects v Moreland CC [2004] VCAT 1752

Carlos Constructions Pty Ltd v Moreland CC [2005] VCAT 2718

Liistro & ors v Moreland CC [2009] VCAT 1795

1. In June 2009, La Strada Investments Pty Ltd (the applicant) lodged an application for a planning permit with Moreland City Council. It is proposed to develop an apartment building with a height of 35 metres (eleven storeys) over four basements. The building would accommodate 165 apartments comprising a mix of bedsits, one bedroom apartments and two bedroom apartments.
2. In November 2009, the applicant sought a review by the tribunal as the council had failed to determine the application within the statutory time period. The tribunal ordered in February that the application be amended to delete permission for access to a road in a category 1 road zone. The tribunal also ordered that the applicant notify owners and occupiers of nearby properties, and the wider community of the application.
3. Council supports medium density residential development on this site but does not support this application in its current form. Council considers that development to be excessive in height and that it would have adverse impacts on a nearby sensitive residential area and park. Development of this scale would be inconsistent with the draft Brunswick structure plan that encourages development in this locality to be in the order of five storeys. Council also considers that if approved, the development would set an undesirable precedent for the locality and Lygon Street.
4. The land is presently occupied by industrial activities in a single level industrial building. The review site comprises part of a larger site that has an area in the order of 6,000 square metres. The larger site is also used for industrial purposes. It has access to both Lygon Street and to Leinster Grove, a local residential street. Council and the community are concerned that the proposed development may prejudice development opportunities for the larger site and the wider precinct. Council would like to retain the capacity in the long term to extend Leinster Grove northward to Albert Street and create a pedestrian link between Lygon Street and Methven Park.
5. Local residents have joined the review and oppose the development on grounds similar to council.
6. We consider the following to be the key issues or questions that we need to determine:
   1. Would the development be consistent with the entirety of the planning policy framework, including the strategic planning work being developed by council?
   2. Does the development exhibit a satisfactory built form and design?
   3. Would the development prejudice the development of the residual land to the east of the review site?
   4. Would the development impose adverse impacts on adjoining properties?
   5. Would the traffic and parking arrangements be satisfactory?
   6. Would the development provide satisfactory amenity for its future residents?
7. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Moreland Planning Scheme, we have decided to provide the opportunity to the applicant to modify the proposal and submit amended plans. Our reasons follow.

Would the development be consistent with the entirety of the planning policy framework, including the strategic planning work being developed by council?

1. All the parties agreed that the review site should be considered as an opportunity to provide a range of smaller dwellings for single and two person households. Mr Milner, Mr Czarny, Mr Biles and Ms Peterson generally agreed that the development of the site for residential apartments would make a positive contribution to the objectives of the planning policy framework. The height and timing of the development was contested, with Mr Milner, Mr Czarny and Ms Hicks submitting that the development is too tall in the context of strategic planning for the Brunswick activity centre. They also submitted that the development is premature as the strategic context for the remainder of the site is unknown and approval of this development may prejudice the use and development of the larger site of which the review site forms a part. Mr Cicero, Ms Peterson and Mr Biles submitted that the development would have appropriate scale, massing and height given its location in the core of the activity centre, and the planning policy framework strongly encourages opportunities to maximise the yield of dwellings to reduce outward suburban growth.
2. We find that it is reasonably self evident that intensive residential development on this site would be consistent with much of the state planning policy framework. The review site is well located to the public transport network, given that tram routes operate in Lygon Street and provide convenient connections to Melbourne's inner suburbs and the central business district. The site is approximately 1.2 kilometres east of the Brunswick train station which as accessible, although not a convenient walking distance.
3. The site enjoys convenient access to the vast array of employment opportunities and education institutions located in Melbourne's inner suburbs. It is also proximate to the regional open network along the Merri Creek, and local open space including the attractive Methven Gardens. Primary and secondary schools, kindergartens and child care are located in this area.
4. This area of Lygon Street (south of Albert Street) is characterised by manufacturing businesses that also offer "factory direct" sales to customers. The sites are relatively large, the built form is industrial with premises being single storey industrial (5 to 7 metres in height), with some sites enjoying direct access to Lygon Street. However, the area includes many premises that are vacant. The area appears to be "on hold", waiting for its transition to a new Lygon Street.
5. A "new" Lygon Street is emerging. Lygon Street, north of Albion Street has a different land use. This area includes small cafes and restaurants, and also includes a maternal and child health facility. A 10 storey apartment building is under construction north of Albert Street and several 5 and 6 storey apartment buildings have been developed on Lygon Street. A number of apartment buildings up to 7 storeys have been approved along the street. If all are developed, Lygon Street would be substantially revitalised with many new households living in the locality. They would stimulate new businesses and support some of the existing ones, particularly restaurants, cafes, convenience stores and the like.
6. Accommodating new households that can access these facilities meets the objectives of clause 12 to make better use of the substantial existing infrastructure invested in Melbourne's established suburbs, particularly public transport. Melbourne should continue to provide a more diverse range of dwellings and an increasing proportion of households should be able to live in the established suburbs rather than on Melbourne's fringes. We note that accommodating a greater proportion of new households in the established suburbs would reduce the amount of land on Melbourne's fringes that needs to be converted to urban uses, thus protecting non-urban land that has productive, ecological and/or landscape values.
7. Melbourne @ 5 million notes that Melbourne is growing faster than previously forecast, and is now expected to reach 5 million by 2020 rather than 2030. Approximately half of the expected 600,000 new households should be accommodated in established suburbs rather than on Melbourne's fringes. It is notable that most of the new households are forecast to comprise one and two persons that may prefer smaller dwellings than the large traditional family home.
8. Brunswick is identified in Melbourne 2030 as a major activity centre. Clause 12 encourages major activity centres to support intensive housing developments without conflicting with surrounding land uses, and to accommodate growth where they have good public transport infrastructure. More intensive development in major activity centres (within the Business 1 zone) is not constrained by the need to respect neighbourhood character as residential development in a neighbourhood activity centre might be constrained.
9. We are satisfied that the redevelopment of this site for housing would make a positive contribution to meeting the metropolitan planning objectives of housing diversity, affordability, compact city and reducing Melbourne's suburban sprawl.
10. The local planning policy framework aims to complement the state planning policy framework, but places a local context on change in established suburbs such as Brunswick. Clause 21.02 notes that Brunswick is conveniently located to Melbourne's CBD and is well served by fixed rail public transport. Clause 21.03 outlines change in Moreland and particularly notes a declining household size and that the traditional manufacturing base may no longer be the source of local employment opportunities. The clause urges that the local community should benefit from increases in housing density.
11. Clause 22.04 (Lygon Street precincts) aims to create an environmentally sustainable city where people can shop, work and socialise locally in urban villages. Urban villages such as Brunswick are to be the preferred location for more intensive development as they are located around good public transport links and comprise a mix of residential, employment and open space. Clause 21.05 (Moreland's vision) strongly supports urban consolidation for environmental reasons. Increased housing intensity within designated urban villages is to be supported provided that it contributes to the preferred urban character statement. Clause 21.05 notes that in planning for urban villages, development should meet local needs, improve links between spaces and street networks, increase housing choice and protect sensitive areas from inappropriate development. The review site is identified as an appropriate location for a more intensive residential or mixed use development.
12. Local planning policies include variable approaches to preferred heights and massing. Clause 22.04 calls up the Lygon Street East Brunswick Concept Plan 1994. Buildings should generally not exceed the height of adjacent buildings by more than one storey, but buildings more than four storeys may be considered on large redevelopment sites where taller buildings are set well back from street frontages. Ms Hicks accepted that this approach was out dated and that we should not give weight to its provisions.
13. Clause 22.10 (Neighbourhood character policy) better reflects council's approach to development in urban villages. The clause encourages new built form to become a more prominent element in the streetscape. The clause refers to the Moreland Neighbourhood Character Guidelines 2006 and encourages development to be consistent with the preferred future character statements. In respect to areas with a commercial character, the clause provides:

Building height should not exceed 2 storeys above the prevailing height unless it can be demonstrated that off site impacts can be mitigated through a design response and/or it is no more than 2 storeys than the prevailing height of surrounding buildings. Side and rear setbacks may be reduced to facilitate increased density of new development. The site should respond at its interfaces to the predominant residential character where the site is surrounded by residential uses.

1. The final relevant local policy is clause 22.11 (development of four or more storeys) which applies design objectives and guidelines similar to clause 19.03.
2. Council has prepared the Brunswick Structure Plan (July 2008) to guide use and development along Lygon Street. The structure plan acknowledges that Lygon Street is in transition from its previous industrial/ manufacturing base to intensive residential and it has the opportunity to accommodate intensive residential development[2]. The structure plan identifies the precinct between Albert Street and Victoria Street as one of three core areas, based largely on its proximity to community facilities and east-west street linkages.
3. The review site is within precinct 2B and the preferred building height is to be 5 storeys generally comprising a 4 storey podium and a fifth level recessed by 3 metres. Development within the "core" area to the north of Albert Street could be up to seven storeys.
4. We were advised that Council has adopted in principle the draft Structure Plan and is expected to shortly consider a resolution to seek authorisation to prepare a planning scheme amendment.
5. We consider the draft structure plan to be a document that we may consider pursuant to section 60(1A)(g) of the Planning and Environment Act 1987[3]. However, we give it limited weight. It was developed in 2006, and the interpretation of policy has evolved since that time to give greater weight to maximising residential development opportunities in strategically advantaged locations. It has not been tested through the amendment process. We understand that there continues to be discussions between council and the Department, and hence its final recommendations remain uncertain. We consider it to be a guide that includes useful information regarding Lygon Street's issues and transition, and we have noted its recommendations in respect of height and built form[4].
6. Overall, we find the entirety of the planning policy framework gives strong policy support to intensive residential development. New residential development would positively contribute to meeting Moreland's housing needs, and contribute to a more compact city. The review site is in close proximity to the designated core of the centre and development up to 7 storeys is supported. Additional households would reinvigorate an area already in transition. We turn to the more detailed question of the appropriate height, scale and massing below.

Does the development exhibit a satisfactory built form and design?

1. The building comprises a 4 level podium set to the Lygon Street frontage and three distinct components above the podium. Mr Biles described the elements as:
   • The fourth and fifth levels immediately above the podium. These are setback 3.5 metres from Lygon Street, and eroded edges to the northwest and southwest corners. The northern side features a skeletal frame to support vegetation.
   • The sixth to tenth levels. At level 6 the building wall recesses 8.6 metres from Lygon Street. Openable louvers are provided on the west facing façade at levels 7 to 10.The southwest edge is recessed nearly 17 metres from Lygon Street.
   • The rear eastern elevations at levels 9 and 10. The 9th and 10th levels are recessed from all corners except the east. The north-west and north-east corners are eroded to accommodate a roof deck at level 9.
2. Whilst the redevelopment of the site for housing was not contested, the intensity and built form was contested. Ms Hicks advised that Council could support a building of 7 to 8 storeys providing the design was modified to have less bulk and to include a greater diversity of dwellings. Ms Hicks and Mr Milner submitted that the building would have an adverse impact on a sensitive precinct adjoining to the south-east of the site. The development would be within 13 metres of dwellings fronting Leinster Grove and approximately 30 metres of Methven Park also to the southeast. The park and Leinster Grove are within heritage overlay HO 113 and form a sensitive interface that could be adversely impacted by a building of this scale.
3. Mr Cicero put that development yields on this site should be maximised because it is one of few sites that are relatively unconstrained. Unlike other sites on Lygon Street, it has generous frontage and depth, and the industrial use to the south and east provides a significant buffer to the residential hinterland.
4. The tribunal has considered several significant development proposals in this locality, and has generally supported intensive development. It has approved two buildings each of 10 storeys in the core of the centre, largely on the basis that these sites were rare development opportunities that were relatively unconstrained by their interfaces[5]. It has also approved buildings with lower heights where the interfaces and context have required a lower response.
5. We do not think that a relatively tall building(s) on Lygon Street would necessarily have an adverse impact on the heritage qualities of Methven Park or Leinster Grove. We note that the heritage overlay applies to a precinct, and hence the primary intent of the overlay is to ensure that new development within the precinct has regard to its heritage integrity. We think that from within Methven Park, the building would be largely screened by the mature trees on the western and northern boundaries of the park. Even if the building is visible from within the park it would not be visually intrusive as it would be 30 metres from the northern edge of the park. We note that the upper levels of the building would be visible to a person standing in Leinster Grove, but it would form a background to the streetscape without dominating. We note that Leinster Grove is a highly attractive precinct, largely due to the street trees and the park. However, its heritage qualities are not of such significance that some change to its background would adversely affect its heritage integrity.
6. We consider that in balancing planning policy objectives, weight should be given to realising the housing opportunities available through redeveloping sites such as this. Sites with such clear strategic advantages and policy support should not be unreasonably constrained by their hinterland or interface. We consider that it is reasonable that development of this site can be seen from Leinster Grove, but not dominate or overpower its interface.
7. We also consider that there is little in the "core" of the Brunswick activity centre between Albert Street and Victoria Street that distinguishes it as a focal area. A few cafes, restaurants and a maternal child health centre do make a core of a major activity centre. We consider that the core of this centre needs some built form mass to distinguishes it from the remainder of Lygon Street. The ten storey building under construction is an initial step to creating a visible, active core, and additional prominent buildings close by would consolidate the emergence of a recognisable core of the activity centre.
8. Whilst we agree that the site is a suitable opportunity for properly designed higher density development, and that a prominent building would contribute to the adjacent core of the activity centre, we do not agree that this site is one of only a few redevelopment opportunities and hence its yield should be maximised. This site is one of several, and probably many sites that will transition from manufacturing to residential uses over the foreseeable future. Moreland's Industrial land Uses Strategy identifies a number of sites that should be redeveloped. We understand that planning permits have been granted for apartment buildings elsewhere on the municipality's main roads, and that other large development proposals are under discussion on other strategic sites. In Moreland, development yields do not need to take precedence over appropriate built form outcomes as there are many sites that will enable Moreland to play its part in Melbourne becoming a more compact city.
9. On balance, we concur with Mr Milner, Mr Czarny and Mr Biles that eleven storeys would be too tall in this context. We are concerned with the proximity of the review site to the dwellings in Leinster Grove. We note that it is a midblock infill site rather than a landmark site, proximate to but not within the designated core. We consider that in these circumstances it should be developed to a lesser height than the development approved in the core of the centre, assisting with the transition to the residential areas, and giving some weight to the strategic planning principles that underpin the draft Brunswick Structure Plan. We agree with Mr Milner that, as there are a number of other sites likely to be available for redevelopment we do not need to maximise the development yield on this site. We concur with Mr Biles that an eight storey building would be appropriate for this site, and note that this height is similar to a height that Ms Hicks advised council would be prepared to support.

1. We consider the building's appearance to be generally well conceived and the general concept should remain. We acknowledge that reducing it by three levels is likely to be a design challenge, and the architect should ensure that the elements remain in proportion. We also recognise that we are offering the applicant an opportunity to modify an existing application, and that the proposed changes should not transform the proposed building into an entirely different proposal that might have impacts that affect people who are not parties to this matter. Accordingly, we expect that the architect should, as far as possible, incorporate our suggested changes into the built form as submitted without undertaking a comprehensive redesign of the building.
2. The facades are broken down into principal elements which, as a rule, are easily identifiable as to where they start and where they finish. This articulated approach is appropriate in integrating varying set backs as opposed to what has become known as the "wedding cake" approach in which the upper levels have increasing setbacks but there is limited variation in materials and articulation.
3. We therefore support the principal of the elemental nature of the façades and the lighter areas of louvres being framed by these elements.
4. We are however, not convinced by the extensive use of louvres that are a consequence of the wintergardens. Mr Brook suggested that they would create a highly interesting textural pattern as the louvers are opened to differing degrees. Irrespective of the degree of variation, we believe that for much of the time, they would create a large, relatively flat facade that adds to the perception of bulk and prominence. Whilst we are happy to support the use of the louvres to an extent, we believe that this part of the façade could be better articulated and varied by punctuating the principal faces with a greater use of recesses, such as balconies. This should be addressed on all louvred facades.
5. We are also concerned with the random skeletal frame immediately above the podium on the western façade. We feel this architectural treatment is of an era and is alien to the remainder of the building. Any frame or treatment to be applied to the upper parts of the facade should be more sophisticated, allowing it to stand the test of time whilst maintaining the articulation and the separation that is needed between the podium and the principal upper elements.

Would the development prejudice the development of the residual land to the east of the review site?

1. The review site has an area in the order of 1,500 square metres and forms part of a larger site. The review site and the residual land to the east are presently on one title. Council and Mr Milner were particularly concerned that this proposal should not prejudice the orderly planning of the whole of the land and a wider precinct. This development should not foreclose long term land uses of the residual land (including residential uses), and road and pedestrian connections contemplated in the draft Brunswick Structure Plan.
2. We would all like to be comfortable that a particular development fits into a comprehensive plan for its context or surrounds. However, in this case there are many unknowns that are likely to take considerable time to resolve, including possible rezoning or the remainder of the land and transfer of part of the residual land for a public road. Ms Hicks advised that council has not determined its view about the future land use and zoning of the residual land. It has not determined if or how it would fund the extension of Leinster Grove to Albert Street, or a link between Lygon Street and Methven Park. These are complex issues, likely to require planning scheme amendments and extensive discussions. It seems to us that there are many possible development outcomes for the residual land, including no change.
3. Mr Cicero submitted that the landowner should not have to wait until the planning framework for the remainder of the land is resolved. It is an established approach that particular development proposals should be assessed on their merits, and assessment of a proposal does not need to wait until all the unknowns are known. There is no timetable to resolve these issues any time soon. Whilst we concur with Mr Cicero, we need to be mindful that the development of this land does not prejudice the orderly planning and development of the remainder of the land on this title, and the wider precinct.
4. We propose that the applicant prepare indicative plans that illustrate that a revised building would not prejudice options to develop the residual land for residential development, including the provision of the two linkages and access from the review site to Leinster Grove. Mr Biles provided some indicative illustrations about the wider context, and we consider that with some limited further work should be completed to demonstrate that this development would not foreclose strategic outcomes for the larger site and precinct. This work should include an indicative site layout illustrating that Leinster Grove can be linked to Albert Street and a pedestrian link can be created between Methven Park and Lygon Street.

Would the development impose adverse impacts on adjoining properties?

1. Mr Biles, Mr Milner, Ms Peterson and Mr Czarny agreed that the proposed development would have only two possible impacts on the residential precinct to the east. These are overshadowing and visual bulk. Mr Fearnside and Ms Laslett thought the height, scale and massing to be excessive.
2. We have considered the height and massing issues above.
3. Ms Peterson advised that there is no increase in overshadowing to the private open space of the northern most dwelling at unit 1/13 Leinster Grove, as the private open space is already overshadowed by the adjoining factory wall. However, the private open space at 2/13 Leinster Grove would experience a significant increase in overshadowing from 1pm onwards, from 59% in shadow to almost complete overshadowing by 3pm, a considerably worse outcome than the present circumstances.
4. Ms Peterson recommended that the building should not increase the overshadowing of this private open space. This would be achieved by increasing the setback to the southern boundary of the 8th and 9th floors by 10 metres and the 10th floor by 13.2 metres. We concur with this recommendation and Mr Cicero conceded that the entire top level should be removed.

Would the traffic and parking arrangements be satisfactory?

1. The proposed development comprises 46 studio apartments, 100 one bedroom apartments, 19 two bedroom apartments and two retail tenancies with a total floor area of 448 square metres. The proposed development provides 151 car parking spaces and parking for 49 bicycles[6]. The application seeks approval for a reduced provision of car parking than required pursuant to clause 52.06. Vehicle access would be via a six metre wide accessway to Lygon Street.
2. Ms Hicks and Mr Milner submitted that access to Lygon Street was unsuitable as the street is already congested and further traffic would increase congestion levels, particularly as occupants sought to complete right hand turns into the development. Such congestion would disrupt the operation of the tram services on Lygon Street. Mr Symons estimated that the development would generate in the order of 960 vehicle movements per day and 114 vehicle movements in each peak hour. Mr Symons was satisfied that these traffic levels can be accommodated on the surrounding road network without adversely affecting their existing conditions. We note that the Department of Transport had no objection to the proposal.
3. We consider that this and other similar developments may well contribute to the present peak hour congestion levels on Lygon Street and generate some difficulties for other motorists and tram operators and passengers particularly in the afternoon period as residents return home and seek to complete right hand turn movements into the buildings. However, we think that this outcome would be a small cost that is outweighed by the other benefits of a more compact city discussed in our reasons. It is not sufficient reason not to support a more intensive development on a site with its strategic advantages. It may well be preferable that access be provided via Leinster Grove, and this option should be retained for the future if the residual land is developed. We consider that the proposed access arrangements are not sufficient grounds to refuse the application.
4. With respect to car parking, one space is provided for each of the one bedroom and two bedroom apartments. Twenty nine spaces are to be provided for forty six studio apartments, hence seventeen of the studio apartments would not have a car parking space. Three spaces are provided for the two retail tenancies, and no visitor parking is to be provided.
5. Mr Symons noted that ABS Census information for Moreland indicated that 70 percent of occupants of studio apartments did not own a vehicle and that the average car ownership was 0.38 vehicles per dwelling. The twenty nine spaces provided for the 46 studio apartments would readily meet the likely demand. One hundred and nineteen car parking spaces would be available for 119 one and two bedroom apartments, which would exceed the likely car ownership rate. We concur with Mr Symons that there is adequate car parking provided for the likely occupants.
6. Whist no parking is to be provided for visitors and customers of the retail premises, parking surveys indicate that there is adequate capacity within the available on-street car parking to accommodate the likely demand for spaces. We are satisfied that the development makes adequate provision for car parking.

Would the development provide satisfactory amenity for its future residents?

1. Ms Hicks submitted that the amenity for future residents is poor. Nearly half of the apartments have no provision for private open space (as they are provided with wintergardens or community spaces). A large proportion of the apartments are south facing. Few dwellings would have cross ventilation and the narrow width dwelling types B, D, F and G provide limited access to natural light. Many dwellings have bedrooms that rely on borrowed light.
2. We note that the dwellings types mentioned comprise most of the apartments in the development. We concur with Ms Hicks and consider that these aspects should be addressed to improve the comfort and internal amenity for future residents. We suggest that changing the mix of dwelling types by increasing the proportion of wider and more generous dwelling types would result in a development with greater internal amenity and create a more diverse mix of households. As a guide, the tribunal has accepted that in the order of 10 percent of dwellings can have a southern orientation, and up to 25 percent of dwellings can have bedrooms that rely on borrowed light. However, where bedrooms rely on borrowed light, the tribunal would expect that measures such as louvers, opening or movable screens might be proposed to improve their access to light.
3. We also refer to our comments in these reasons regarding the use of balconies to assist in facilitating relief for the facades of the buildings and further suggest that these balconies will also assist in increasing the amenity for the future residents.
4. It is proposed that storage cages be provided in the basement. These would generally comprise cages with a capacity of approximately 3 cubic metres. They would be located above the car parking spaces. We find these cages likely to meet the storage needs of the households in the smaller apartments. Therefore the number of smaller cages should be no more than the number of bedsits, studio and one bedroom apartments. Residents of larger apartments should have access to storage containers with 6 cubic metres capacity.

1. We consider that this proposal has substantial merit and is appropriate in view of the transition of Lygon Street to a new built form and its proximity to the core of the centre. The detailed design of the building however requires review.
2. We have considered refusing the application and providing guidance to all parties in the expectation that a revised application that is consistent with our reasons would receive the support of the parties. However, we appreciate that the planning approval process is lengthy, resource intensive for all parties and without certain outcomes.
3. We consider therefore, that all parties would benefit from the tribunal clearly indicating the improvements that are needed to bring this proposal to a satisfactory standard. We have indicated our concerns and the matters that need to be addressed. We do not prescribe the solutions, and acknowledge that changing the design via permit conditions can lead to many unintended design consequences. It is the applicant that must respond through a review of the design. If the applicant does not wish to avail themselves of this opportunity, this application for review will be dismissed and the permit will be refused. If the revised plans fail to respond positively to the matters that we have raised, we will also refuse the application for review.
4. Mr Fearnside and Ms Lasslett made the considerable effort to prepare for, and attend the hearing. They should have the opportunity to be informed of the amended plans and to respond. Other people who were parties to the appeal, but who did not attend should also have the opportunity to be advised that amended plans are being prepared. They must advise the tribunal and other parties if they wish to make further submissions on the amended plans. We note that any further submissions and hearings will be confined to the matters of height, massing and design that we have identified in these reasons as needing change, as we have heard and considered the merits of the matter during the submissions of the parties.

1. It follows from the above reasons that it is our conclusion that the proposed development has substantial merit. It's height should be reduced, its massing to its east and south elevations needs greater articulation and the design of its facades needs review. The internal amenity of many of the apartments also needs review and a greater mix of dwellings should be provided.
2. We will provide an opportunity for the applicant to address the matters that we have identified prior to making our final decision.

[1] We have considered all submissions presented by the parties although we do not recite all of the contents in these reasons.

[2] The decline of the local industrial sector has provided sites for new apartment buildings and this is the most rapidly changing part of Lygon Street. This precinct has the capacity to accommodate a significant population growth through redevelopment. (page 11).

[3] We concur with the reasons set out in Liistro & Ors v Moreland CC [2009] VCAT 1795

[4] We note that the Brunswick Structure Plan is poorly presented, confusing and in need of a substantial review so that its strategic directions can be readily understood.

[5] Carlos Constructions Pty Ltd v Moreland CC [2005] VCAT 2718

[6] The parties agreed to provide 51 bicycle spaces within the development to meet the likely demand for bicycle spaces.