He called the following witnesses to give expert evidence in their respective fields:

Mr David Crowder, town planner, of Ratio Consultants;

Mr Russell Fairlie, traffic engineer, of Ratio Consultants;

Mr Mark Sheppard, urban designer, of David Lock & Associates;

Dr Peter Yau, arborist, of PSY Investments Pty Ltd; and

Mr John Patrick, landscape architect, of John Patrick Pty Ltd.

He called Mr James Coomes, town planner, of Coomes Planning to give expert town planning evidence.

It is proposed to construct a part four level/part three level/part two level apartment building. The building contains 35 dwellings above a part basement/part undercroft containing 40 car spaces. Eleven one bedroom dwellings and twenty four two dwellings are proposed.

The front of the building is generally at natural ground level and is approximately 4 metres below ground at the rear. It has a maximum height of 12.35 metres yet the height varies in a range of 10.5 metres to 12.3 metres due to the fall of the land.

The basement level extends to the side boundaries except for two 'cut outs' where canopy trees are proposed and for the first 30 metres of the building's length near the northern boundary. A 2.5 metre wide landscape strip is proposed here.

From the south boundary, upper level walls are recessed 2.8 metres, with the open walkways recessed 1.3 metres. Upper level walls are recessed between 2 metres and 6.6 metres from the north boundary with balconies extending into this setback. A 9.2 metre front setback and a 4.2 metre rear setback is proposed.

The building is of contemporary design and is clad in a variety of materials and finishes. Private open space areas are oriented northwards and take the form of terraces and balconies. Pedestrian access is via open walkways on the building's south side that, in turn, are accessed via a lift and two stairways in the building and from Main Street via a ground level entry with access to the lift and eastern stairway.

Application under Section 77 of the Planning and Environment Act 1987.

Clause 32.01-4: construction of two or more dwellings on a lot.

Clauses 11.01, 11.04, 15.01, 16.01, 18.01, 21.04, 21.05, 21.06, 22.03, 22.04, 52.06, 52.34 and 65.

The site is generally rectangular in shape with a 16.46 metre frontage, a 109.88 metre depth and has a site area of 1,718 square metres. It falls approximately 5.2 metres from the rear to the front boundaries. It is occupied by a single storey dwelling with a range of mid-sized canopy trees and other garden plantings in the frontage and along the boundaries.

It is adjacent to a two storey wall and car park of a supermarket on its south boundary, a comparable size lot occupied by a single dwelling on its north boundary and a more conventionally sized residential lot to its rear boundary.

Lee v Whitehorse CC [2010] VCAT 794

Dekas One Pty Ltd v Whitehorse CC [2012] VCAT 1755

King & Anor v Mornington Peninsula SC [2012] VCAT 1882

Hu v Whitehorse CC [2006] VCAT 1750

Elcheikh v Banyule CC [2010] VCAT 404

Kennedy v Stonnington CC [2011] VCAT 926

1. In July 2012, the Whitehorse City Council determined to refuse to grant a planning permit for an apartment building at 102 Main Road, Blackburn South. The permit applicant seeks a review of this decision by the Tribunal. A number of objectors to the proposal have joined this review.
2. The council refused to a permit on the basis that the proposal is not supported by the policies of the Planning Scheme and is excessively bulky and discordant in the streetscape. It says the building's landscaping is inadequate and its construction will adversely impact on trees in the neighbour's property. It also contends the building will unreasonably overlook the property to the north. The objector parties share these concerns and contend that adverse parking and traffic outcomes will occur.
3. All grounds of refusal and objection are contested by the permit applicant.
4. The questions for determination are:
   • Is there policy support for the proposed development?
   • Is the proposed development an acceptable response to the site's policy and physical context?
   • Will adverse parking and traffic outcomes result from the proposed development?
5. 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 Whitehorse Planning Scheme[2], I have decided to refuse to grant a permit. My reasons follow.

Is there policy support for the proposed development?

1. It is worth outlining the relevant State and local policies. These are as follows:

1. State policy at clauses 11 and 16 encourages more intensive residential development in or near activity centres. State policy also supports the identification of 'strategic redevelopment sites for large residential development'[3] and
2. I find these policies support a greater intensity of residential development on the review site than would be acceptable on nearby residential land, as it abuts a Neighbourhood Activity Centre and is large enough and located such that it is a strategic redevelopment site[4].
3. State policy qualifies this support, as it encourages higher density housing in and near Neighbourhood Activity Centres that 'is designed to fit the context and enhances the character of the area'[5].
4. Clause 15 of State policy provides guidance on context and character as follows:

Development must take into account the natural, cultural and strategic context of its environment; and that:

A comprehensive site analysis should be the starting point of the design process and form the basis for consideration of height, scale and massing of new development.

1. The local policy framework identifies the site as being in a Natural Change Area[6] with a garden suburban character[7]. The policy refers to the Whitehorse Neighbourhood Character Study 2002/2003 that identifies vegetation character as being generally the 'most significant determinant of neighbourhood character' in the municipality.
2. Natural Change Areas are earmarked for incremental change to the intensity of residential development. They are distinguished from Substantial Change Areas where intensive redevelopment is encouraged, and from Minimal Change Areas where the existing suburban context is to be retained. The local housing policies anticipate that redevelopment based on the three areas of change outlined above will provide the municipality's contribution to State urban consolidation objectives[8]
3. Local policy on residential development includes a 'statement of desired future character' for the garden suburban areas in the municipality[9]. The statement identifies that generous front and side setbacks contribute to the openness of these areas. It requires adequate space around new development for the planting of canopy trees. It encourages the retention of existing gardens and trees and the enhancement of these existing plantings through further planting. It identifies a number of design objectives and design responses by which new development can achieve the preferred future character.
4. The preferred character for the precinct containing the review site is found in the Reference document titled 'The Blackburn Lake Surrounds Study 2002'. This Study identifies a further layer of precincts within the garden suburban area near Blackburn Lake, provides 'preferred neighbourhood character' statements for these precincts and prescribes measures to achieve this preferred character.
5. Local policy on activity centres[10] recognises that State policy encourages residential development amongst the mix of uses in activity centres and acknowledges that the municipality's Neighbourhood Activity Centres provide convenient retail and other services for local residents. It foreshadows further strategic work for these centres.
6. Mr Song referred to embryonic strategic work on housing, neighbourhood character and Neighbourhood Activity Centres. This work indicates that the council intends to retain much of the existing neighbourhood character policy and to encourage more intensive residential and commercial development in specific Neighbourhood Activity Centres. Building heights of four to five storeys are envisaged in the Blackburn South centre adjacent to the review site.
7. Local policy on Tree Conservation[11] is an adjunct to policies on housing and neighbourhood character. It encourages the retention and regeneration of canopy trees in the municipality and specifies performance measures for these outcomes.

1. Mr Peake contends the local policy on Natural Change Areas does not acknowledge the different State policy framework that applies to sites near activity centres. In his contention, the policy reads as though it applies to all land in Natural Change Areas whereas State policy distinguishes between land near activity centres or main roads and land deeper into the residential hinterland. He contends this same issue is embedded in local policies on Garden Suburban Precincts.
2. He elaborates on this by saying the local policies originate in strategic work prepared before 2003, when the metropolitan planning framework (Melbourne 2030) was incorporated in the Planning Scheme.
3. He emphasised two aspects of statutory interpretation. The first is that section 7 of the Planning and Environment Act 1987 gives priority to state policy when there are unresolvable inconsistencies between State and local policy. The second is that reference documents, such as the 'The Blackburn Lake Surrounds Study 2002' are to be interpreted as providing background to the Planning Scheme's provisions and are not a primary source of statutory assessment.
4. I agree with Mr Peake's assessment the local planning policy context must be given less weight as it fails to acknowledge that sites beside activity centres can be more intensively developed. I qualify my agreement, as I am not willing to read the policy provisions as literally as he would like me to. I do not see an unresolvable inconsistency between State policies at clauses 11 and 16 (on settlement and housing respectively) and local policies on housing and neighbourhood character.
5. I consider the statutory assessment task is to comprehend and apply the policies in light of the overarching state policies. This requires a judgement of what weight to give to the particular policy objectives, design responses and performance measures.
6. As such, the broad concepts of State and local policy, such as 'fitting the context', 'enhancing an area's character' and encouraging 'modest change' act as filters for assessment of scale, mass and intensity and are not suited to literal translation. In this setting near an activity centre, the prescriptive form of the Garden Suburban design responses similarly should be viewed as filters rather than edicts.
7. I find against a number of literal translations of policy put to me in submissions and evidence. The first is the submission that the design response of landscaping either the side or rear setback is met by landscaping the rear setback of the review site. I find that a substantive reading of the policy requires landscaping that respects the area's character to be provided in the review site's side setback, simply because of the site's length and its side abuttal to its residential neighbours.
8. The second is that the reference to 'near activity centres´ in the local policy on Substantial Change Areas means the local policy encourages substantial change on the review site. This is simply not correct as a full reading of the policies and associated maps clearly locates the review site in a Natural Change Area.
9. Equally, local policies on housing and neighbourhood character cannot be read to mean that all large residential buildings must be located in Substantial Change Areas. Terms like 'substantial change' and 'natural change' are relative and must be applied to each site in its context. By this I mean that factors such the size and location of a site and the sensitivity of its surrounds allow for different degrees of change within the context of 'natural change'. As such, modest change on a small site in the residential hinterland will be different than modest change on a large site next to an activity centre.
10. The third is that I found Mr Song's reliance on the design guidelines of the Garden Suburban Precinct 1 brochure unhelpful. This brochure derives from the The Blackburn Lake Surrounds Study which is a reference document to the local neighbourhood character policy. As Mr Peake rightfully pointed out, the 'avoid' column in the brochure did not make its way into the Planning Scheme. The Planning Scheme's guidelines are broader and more facilitative of change. As a result, I will place no weight on whether the proposal complies with the 'avoid' column of the guidelines.
11. The fourth is that the performance measure requiring 35 square metres per canopy tree must be applied literally. I agree with Mr Peake that this performance measure is inconsistent with policies encouraging urban consolidation. I also agree with Mr Patrick that this quantum of space is not required to achieve the objective of providing canopy trees. I see it as an expression of the objective to ensure landscaping occurs in a spacious setting and will read it as such.
12. In all, it is a matter of degree and an issue of scale, intensity and mass. State policy at clause 15 'Built Environment and Heritage' and local policy on neighbourhood character assist me in resolving the inconsistencies between State and local policies on housing and character.
13. To summarise, I find the planning policy framework encourages the intensive use of this site subject to a proper application of state and local objectives for built form and character.

1. The physical context comprises the site itself, its immediate abuttals and its hinterland.
2. The site's characteristics are relevant. It is over 100 metres long and just over 16 metres wide. Its 5 metre fall from the rear boundary to the street is significant. It is particularly relevant that the adjoining property to the north has a similar length.
3. Its other immediate abuttals are the supermarket building and car park to the south, and the residential form of 21 to 15 Baldwin Road to the west.
4. The southern abuttal is robust and urban in form. For the first 66 metres, the site abuts an at grade car park with some large canopy trees. A 3 metre wide landscaping strip with immature screening vegetation is adjacent to the shared boundary. The interface with Main Street is occupied by two wide, double crossovers serving the supermarket car park.
5. The rear wall of the supermarket building is adjacent to the next 41 metres of the site. This wall is shown on the elevation plans as being 13 metres high and setback 3.3 metres from the shared boundary, with this setback occupied by a concrete service path.
6. The northern abuttal is to 102 Main Street. This lot is as long as the review site and slightly wider. A two storey dwelling with aspects to the east, west and south is located 30 metres from the frontage and a minimum of 2.6 metres from the shared boundary. A three car garage/carport and in ground swimming pool are adjacent to the rear of the dwelling and are on the shared boundary. An established garden of canopy trees, with some higher than the supermarket building, occupies the frontage and the rear garden beyond the swimming pool.
7. The western abuttal is to the rear yard of a single storey dwelling at 23 Baldwin Road, with single and double storey dwellings close to the shared boundary at 21 and 25 Baldwin Road.
8. The southern hinterland comprises the commercial buildings of the Neighbourhood Activity Centre and the intersection of Main Street and Canterbury Road. Robust built form and road surfaces, broken visually by scattered canopy trees on Main Street and in the supermarket car park, characterise this southern hinterland.
9. The northern hinterland predominantly comprises villa units extending deep into sites on the west side of Main Street and single dwellings on shallower lots on the east side of Main Street. Mid-height to tall canopy trees screen buildings from view along the street. I agree with Messrs Peake, Crowder and Patrick that this vegetated canopy is mainly in the frontage of sites on Main Street's west side, with the exception of 102 Main Street.

1. I find the site's dimensions create challenges for the proposed building. Its 109 metre length ensures that any large building will be obvious along both side boundaries. Its narrowness, relative to its length, is also problematic as it limits opportunities for deep side setbacks that might provide visual relief for the building's mass.
2. The distinct southern and northern attributes of the site's physical context provide opportunities and challenges for the proposed building. The robust character of the land to the south provides opportunities as it can readily accommodate a large building, whereas the low scale residential character of the land to the north constrains development as a large building will be conspicuous and potentially incongruent with this character.
3. The particular character of the abutting property to the north generates uncommon challenges. Extensive lengths of any large building on the review site will be apparent from any vantage points on this property and there is great potential for adverse amenity impacts resulting from a large building's visual bulk.
4. The site's length provides great flexibility for front and rear setbacks, as the length of any new building can more easily be expanded or reduced to accommodate a required or preferred setback.

1. Mr Peake contends that a proper appreciation of the physical and policy context of this site requires equal weight to be given to the Neighbourhood Activity Centre to the south[12] and the residential neighbourhood to the north.
2. He relies Mr Crowder's opinion that this site is obliged to make a genuine contribution to the Planning Scheme's urban consolidation objectives and that either underdevelopment or overdevelopment would be contrary to planning policy.
3. With regard to 102 Main Street, Messrs Crowder and Sheppard say that, on any objective assessment of context, it is a nascent strategic redevelopment site that will be intensively redeveloped at some time in the future. In Mr Crowder's opinion, state policy gives this future development primacy over the site's existing conditions, as its use for a single dwelling is contrary to State policy objectives.
4. Following this, Mr Crowder sees the strategic role of the review site and 102 Main Street is to create a transition from the robust, higher and larger built form of the Neighbourhood Activity Centre to the residential hinterland of the Natural Change Area. His vision of the future of the two sites of a robust, intense form at 104 Main Street and a similar, yet less intense, form at 102 Main Street.
5. Mr Crowder accepts that more intensive development on the review site will adversely affect the amenity of 102 Main Street. He considers this should be given limited weight, given the site's development potential. He contends that compliance with the clause 55 standard on side setbacks (Standard B17) is an acceptable response in this context in principle.
6. Mr Coomes disagrees. He does not give such primacy to state policy and disagrees with the weight given by Mr Crowder to the future development of 102 Main Street. He places more weight on the site's residential context and 102 Main Street's existing amenity. He contends these constraints demand a more tempered response - something that Mr Crowder would describe as an 'underdevelopment' of the site.
7. I agree with Mr Peake that equal weight must be given to the Neighbourhood Activity Centre context and the residential context. I also agree with Mr Crowder that the review site and 102 Main Street are transitional sites that should be more intensively developed than other residential sites to the north.
8. As such, I find that a multi-storey apartment building is a legitimate response to the site's context. It is a question of whether the proposed apartment building 'fits comfortably' in this context, as is encouraged by clause 15 of the Planning Scheme.
9. I do not agree with Mr Crowder that the future development potential of 102 Main Street should outweigh consideration of its existing amenity. must be read in this context. I find this assessment is too aggressive and pays insufficient regard to the characteristics of 102 Main Street.

Is the proposed development an acceptable response to the site's policy and physical context?

1. I find a number of aspects of the proposed development are an acceptable response to its context.
2. The south elevation is an acceptable response to its interface with the supermarket car park. The robust setting of the activity centre can accommodate a long and large building that is similar in these aspects to the supermarket building and is considerably better articulated.
3. Its front and rear setbacks are acceptable as they comply with or exceed what would be expected under clause 55 of the Planning Scheme and, apart from that, are an acceptable response to the context. I accept the building will sit forward of its neighbours to the north and south, yet the front setback is deep enough to provide landscaping that is consistent with that in the residential area to the north and the robust character of the activity centre can accommodate the proposed building being set forward of the supermarket building.
4. I find the internal amenity of the dwellings is acceptable. The north-south orientation of the dwellings ensures the living rooms and balconies have good access to sunlight notwithstanding that the balconies are screened, and the layout of the dwellings allows good ventilation.
5. I find the open pedestrian walkways that provide access to each dwelling are acceptable, as they face an activity centre where activity and surveillance are valued. It also improves the access to daylight for the rooms on the south side of the dwellings. I agree with Mr Peake that the third level walkways should be covered rather than being open to the sky, yet consider this could be easily addressed.
6. I find the numerous balconies face towards 102 Main Street is acceptable, in principle. I acknowledge this results in a greater sense of activation of the northern elevation, with consequent negative impacts on the secluded use of the rear of 102 Main Street. However, the northern orientation of these balconies considerably benefits the proposed dwellings' internal amenity and I consider this outweighs the adverse impacts on 102 Main Street.
7. However, the building's northern elevation does not sit comfortably with the residential hinterland to the north. This results from its combination of height, length, proximity to the northern boundary, and lack of any built form in the first 30 metres of the property to the north.
8. This combination of features results in a building that is not a comfortable fit with the open landscaped character of the residential hinterland to the north. I accept that the treed character of this hinterland results principally from trees within the frontages of other sites along Main Street, yet I consider this results from a combination of the location of these trees and their height relative to that of the dwellings on these properties.
9. Most of the nearby villa units are very modest in size and are not highly visible from the street. Their landscaping generally comprises low shrubs and border plantings that frame and soften these modest dwellings. In this context, the character is dominated by the larger trees in the front setbacks because the dwellings make little impression in the streetscape.
10. This is not the case with the building on the review site, as its height ensures the building is highly visible and its limited side setbacks ensure it reads as a building that occupies most of the site. I find the proposed building needs to compensate for these impacts in order to be acceptable.
11. I have chosen to assess the north elevation in three parts, being:

1. the 39 metres from the front boundary to the end of the 'basement' void; 2. the 41 metres from the end of the void to the western tree planting area; and

1. the remaining 29 metres from the western tree planting area to the rear boundary.
2. In short, I find the first section of the building dos not fit comfortably with its residential hinterland, the central section unacceptably impinges on the amenity of 102 Main Street and the rear section of the building is acceptable. I elaborate on these reasons below:

The 39 metres from the front boundary to the end of the 'basement' void

1. The height of the first 30 metres of the building, which is 10.2 metres to the top of the balustrade at the front wall and 12.3 metres at the front wall of Unit 27, is a stark transition from the northern hinterland as there is no adjoining built form in the front 32 metres of 102 Main Street. Generally, a one-storey transition is acceptable, i.e. from an existing two-storey building to a proposed three-storey building is acceptable, whereas a four storey transition is proposed here.
2. Mr Peake conceded that the terrace of Unit 27 on Level 3, and the front wall of Unit 14 on Level 2 could be set further back, however, I find these changes would not make this transition acceptable. I find these changes, in combination with the 9 metre front setback and the buildings 12.3 metre height, do not result in a comfortable fit. This is particularly so, as the front setback occupies less than one third of the comparable setback of 102 Main Street and the building is at its highest at the front of Unit 27.
3. The proposed building's length is the next factor to consider. I find the 95 metre length of the building contributes to its height being unacceptable. While it will be screened to some extent by the tall trees on 102 Main Street, its uncommon length will be visible between the trees and will contribute to the building being visually incongruent with its northern neighbours. In this context, I find it is simply too tall.
4. The final factor is the setback from the northern boundary. This setback comprises a 2.4 metre wide void at 'basement' level. At Level 1, it comprises two walls and three balconies setback between 2 metres and 3 metres. At Level 2, it comprises an angled wall setback between 5 metres and 3.3 metres with 1.5 metre wide balconies protruding into the setback. A similarly angled wall setback between 6.4 metres and 6.9 metres is proposed at Level 3.
5. I find the setbacks of Levels 2 and 3 are genuinely recessive and will minimise the visual impact of the mass of the front of the building. However, the 2 metre to 3 metre setbacks found at the 'basement', Level 1 and the rear of Level 2 are not sufficient to result in a comfortable fit, given they abut the open front yard of 102 Main Street or, in the case of Level 2, sit above the roofline of the dwelling on that property. I accept there may only be limited views of this continuous length, however these views will show how consistent this setback is and will contribute to the sense of an uncomfortable fit.
6. I acknowledge this setback will be landscaped. Mr Patrick proposes 7 Capital Pears in the 30 metre length of the void. These trees are anticipated to be 11 metres high and 3 metres wide at maturity. In time, they will screen the basement, Level 1 and Level 2. I accept they will be an effective screen. Mr Patrick tendered photographs of this species flourishing between the footpath and the wall of the 'Skipping Girl Vinegar' building in Richmond, with its canopy covering the first 7-8 metres of the buildings height. Yet, when applied here, this canopy will be hard up against the Level 1 balconies of Units 1, 2 and 3 and marginally clear of the Level 2 balconies of Units 14, 15, 16 and 17 given the proximity of these balconies to the side boundary. I find this is an unacceptable outcome in terms of the amenity of these dwellings.
7. I also find a landscaped screen of this height is out of kilter with the relatively spacious landscaped setting of the residential hinterland to the north. A landscape screen is acceptable in principle for an apartment building on this site, however, the height and setback of the proposed building demands a screen that is too dominant in this setting.
8. While Mr Peake says I must have regard to the Neighbourhood Activity Centre, I find this Neighbourhood Activity Centre does not presently have a great impact on the residential hinterland to the north. This is due, in part, to it being a narrow band of commercial properties along a main road whereas the residential hinterland covers a much larger area. It is also due to the current layout of built form abutting Main Street. As I mentioned earlier, this comprises a car park with scattered trees and a single storey convenience store close to the street's edge. In this context, I would support a building that is indicative of change but do not support the proposed building, as it is premised on the optimum future development of the Neighbourhood Activity Centre.
9. I find this section of the proposed building would move significantly towards being acceptable if the 'basement' level was a genuine basement rather than an under croft. In this section, this 'basement' level is over 3 metres high at the frontage and 2.6 metres high at the end of the void. If its height was reduced by 1.8 metres throughout this length, with the current setbacks retained, the building would be a better 'fit' in its context.

The 41 metres from the end of the void to the western tree planting area

1. I find the amenity impacts on 102 Main Street are not acceptable. I accept Mr Crowder's submission that activity centre policy dictates that the amenity expectations of this property cannot be the same as those of a site deep in the residential hinterland. Yet, I consider the loss of amenity to this property caused by the proposed building is not acceptably limited.
2. I consider its failings are caused by a combination of the height and length of the building and its proximity to the dwelling and swimming pool on 102 Main Street.
3. Starting from the eastern end of this section, the Level 1 finished floor level is at the top of the 2.6 metre boundary fence and diminishes to natural ground level at the western end. As a result, the 'basement' level that is built to the boundary, except for the eastern tree planting area, is 100mm lower than the fence at its maximum height, and is between 1.4 metres and 2.5 metres above the natural ground level of the eastern tree planting area.
4. At Level 1, the walls are setback between 2.4 metres (Units 7 and 8) to 3.5 metres (Units 5, 6, 9 and 10) with protruding terraces varying from 1.3 metres (Unit 8) to 1.9 metres (Unit 10) from the shared boundary. At Level 2, walls are setback 3.9 metres or further, with six balconies protruding to between 1.5 metres (Units 20 and 21) to 2.4 metres (Units 22 and 23) from the shared boundary. At Level 3, walls are setback between 5 metres (Units 32 and 33) and 7.8 metres (Unit 29) with five protruding balconies, the closest of which is 3.6 metres from the shared boundary.
5. The walls and balconies of Units 9, 22 and 32 are directly opposite the swimming pool at the rear of the dwelling on 102 Main Street. The balcony of Unit 8, the screen of which is above the boundary fence, sits slightly to the side of the pool. The balconies of Units 6 and 7 which are setback 1.3 metres from the boundary and elevated between 1 metre and 1.4 metres above natural ground level, and the balcony of Unit 19 (above Unit 6) similarly impose on the open space area immediately at the rear of the dwelling at 102 Main Street.
6. These walls and balconies unacceptably diminish the amenity of the dwelling and pool due to the combination of their height, proximity and number.
7. Once more, landscaping is proposed to minimise the building's visual impact to the north. Here, the landscaping is in a planter box except for the tree planting area. Mr Patrick's evidence is that the trees and shrubs in the planter box will succeed and I accept this, given the lengthy cross-examination of Mr Patrick dispelled doubt about the effectiveness of landscaping in planter boxes. The proposed trees are two Crepe Myrtles, with a height of 9 metres and a width of 8 metres at maturity. One is located in the tree planting area, while the second is in the planter box and is opposite the pool at 102 Main Street. These are accompanied by three Capital Pears immediately to the west of the pool. Otherwise, the planter box will contain a range of 1 metre tall shrubs.
8. I note that the tree planting area is a void between 1.4 and 2.5 metres below the 'basement's' lid and is constrained by the terrace of Unit 6, which partially covers the void. This is unacceptable as it diminishes the effectiveness of the void and impinges on the usefulness of this terrace.
9. I also find the canopy of the Crepe Myrtle opposite the pool will conflict with the purpose and amenity of the terrace of Unit 9, which is only 1.3 metres from the boundary and with the balcony of Unit 22, which is setback 1.9 metres from the boundary. In all, there is not enough space to deliver the desired twin outcome of successful landscaping and useable private open space in the situations outlined above.
10. Mr Peake proposed expanding the western tree planting area and relocating it opposite the swimming pool. This would be advantageous yet would need to be done in concert with applying a design response comparable to that of Units 11, 24 and 34 in order to ensure sufficient space for a tall canopy tree such as the Chanticleer Pear (12 metres high and 6 metres wide at maturity) that Mr Patrick proposes next to those dwellings.
11. Otherwise, I find this section of the proposed building would move considerably towards being acceptable if the 'basement level' was a genuine basement. As mentioned earlier, it is considerably higher than natural ground level for much of this section's length and this contributes to the building's visual bulk when viewed from 102 Main Street and should be lowered by 1 metre or thereabouts.

1. I am satisfied with the design response of the rear 25 metre length of the building and find the design response of Units 9, 22 and 32 can replace the more recessive Units 11, 24 and 34. My finding is influenced by the design response in this section of the building, the distance of this part of the building from the sensitive areas of 102 Main Street and the high, blank wall of the adjacent supermarket.
2. With regard to this first matter, the 'basement' is finally at or below natural ground level with the consequent reduction in height and visual impact. The building also steps down to two levels when approaching the rear boundary, which is an acceptable response to the tall two-storey form on adjacent sites facing Baldwin Road. I acknowledge Ms Downes' opposition to the building yet consider this design response could reasonably have been anticipated, that the rear setback is sufficient for screening vegetation and that the views of the proposed building will replace views of the blank supermarket wall.
3. With regard to the second matter, I find the considerable distance between this section of the building and the well-used open space areas of 102 Main Street minimises its impact on the amenity of that property.
4. With regard to the third matter, I find the rear of 102 Main Street is affected by the high, blank wall of the supermarket despite the review site acting as a buffer between these two properties. I consider the proposed building is a reasonable 'replacement' notwithstanding that it is considerably closer to 102 Main Street.

Will adverse parking and traffic outcomes result from the proposed development?

1. 40 car spaces are proposed as part of the development, while 35 resident car spaces and 7 visitor car spaces are required to comply with clause 52.06. As a result, a waiver of two visitor car spaces is sought.
2. A number of objectors contend that adverse traffic and parking outcomes will result from the proposed development. They are particularly concerned with the impact of additional traffic on the intersection of Main Street and Canterbury Road, additional traffic using the local street network, and the impact on traffic safety of vehicles parked kerbside on Main Street.
3. Mr Fairlie's evidence includes a survey of existing traffic conditions near the review site. The survey shows the intersection of Main Street and Canterbury Road is reasonably busy, with a maximum queue of 8 vehicles observed in the time of the survey. It also confirmed that a significant proportion of motorists turning left into Canterbury Road use the right turn/U-turn slots along that road to change direction in order to travel towards the city. Mr Fairlie also observed queues of up to 10 vehicles during the typical shopping peak period on Saturdays.
4. He advised that crash statistics between 2007 and 2011 indicated no mid-block crashes on Main Street and 7 reported casualty crashes on Canterbury Road near the review site. His opinion is that the road network near the site is operating in a relatively safe manner.
5. He considers the proposed development will generate 18 additional vehicle movements during the morning and evening peaks. He considers this is a relatively modest increase in traffic movements along Main Street and will not create any significant adverse traffic safety or operational impacts.
6. Mr Fairlie's firm also undertook parking surveys that demonstrated an occupancy range of on-street parking spaces near the site of between 24% and 32% on weekdays and a slightly higher peak demand on Saturdays. Mr Fairlie's opinion is that the waiver of two visitor car spaces is acceptable as there is ample on-street parking available to accommodate this shortfall.
7. I agree with Mr Fairlie's evidence on traffic and parking. It is clear that there is a degree of existing congestion at the intersection of Main Street and Canterbury Road and that existing traffic volumes along Main Street are reasonably high. The proposed development is not expected to resolve or ameliorate these existing issues.
8. The additional traffic generated by the proposed 35 dwellings will not significantly add to the existing level of congestion at the intersection of Main Street and Canterbury Road nor create a significant change in traffic volumes on Main Street and nearby side streets. 18 additional movements in peak times will only marginally change the existing situation. As such, there is no reason to refuse the proposal on traffic grounds.
9. It is also clear that visitors would be able to park on Main Street without causing undue inconvenience to existing road users. I accept that parking arrangements may change marginally if this development went ahead yet the level of inconvenience would be acceptable. This is particularly so, given that the site is adjacent to an activity centre that generates a reasonable degree of traffic on a daily basis.

Do any other matters warrant rejection of the proposal?

1. Mr Fairlie recommended that the over-bonnet storage areas above a number of car spaces[13] should be removed so that vehicles could conveniently access these car spaces and enter and depart in a forward direction. He recommended that these storage areas be relocated elsewhere, such as in a separate, lower basement storage area. I agree that a satisfactory arrangement of car spaces and storage areas should be provided in any future proposal for this site.
2. He also recommended that a pedestrian sight triangle of 2 metres by 2.5 metres be provided to the north of the access ramp. I agree that this should be provided in any future proposal.
3. He also confirmed that refuse and recyclables would be collected on-street on Main Street by a private collection service and recommended that a Waste Management Plan to the council's satisfaction should be a condition of any permit for this site. I agree with this.
4. Mr Yau considered the proposed development would not adversely impact on the health of existing trees at 102 Main Street. I accept this is the case given that the extent of impact on the Tree Protection Zones of these trees is under the allowable 10% limit of the Australian Standard AS4970-2009.

Can a condition requiring amended plans make the proposed building acceptable?

1. I have found that an apartment building generally of three storeys height is appropriate for the review site. On this basis, it is likely that a further permit application will be lodged with the council. I considered curtailing this process by granting a permit with a condition requiring amended plans addressing the matters I have raised.
2. I find I am unable to draft such a condition, as I am unable to anticipate the consequential changes to the building that would result from my recommendations regarding the 'basement' in particular. As a result, such a condition would either be unduly vague and uncertain or would potentially restrict a future design response in ways that may be illogical or impractical.
3. As such, I have refused to grant a permit for the proposed development.

1. For the reasons outlined above, the decision of the responsible authority will be affirmed.

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

[2] I note that Amendment VC100 replaced the Business 1 Zone of the Neighbourhood Activity Centre adjacent to the site with the Commercial 1 Zone. This change does not substantially affect my decision.

[4] In saying this, I accept the site abuts the Principal Public Transport Network.

[8] Mr Song took me to Member Cimino's decision in Hu v Whitehorse CC [2006] VCAT 1750 where, at paragraphs 47 and 48 he accepted that modest change in Natural Change Areas would make a significant contribution towards providing more housing in Whitehorse.

[12] I note that Amendment VC100 changed the zoning of this Activity Centre from Business 1 to Commercial 1 yet consider this change does not substantially alter the policy context so far as it is relevant to this proposal.

[13] He referred to car spaces 3, 5, 7, 9, 10, 11, 14, 15, 16, 17, 21, 25, 29 and 31