M & A Brighton Pty Ltd v Bayside CC [2013] VCAT 2113

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Act 1998, the permit application is amended to substitute for the permit application plans the following plans filed with the Tribunal:

TP0.00, TP1.01, TP1.02, TP1.03, TP1.04, TP1.05, TP1.06, TP2.01, TP2.02, TP2.03, TP2.04, TP2.05, TP2.06, TP2.07, TP2.08, TP3.01, TP3.02, TP3.03, TP3.04, TP4.01, TP4.02, TP4.03, TP5.01, TP5.02, TP5.03, TP6.01 Project No. 1214, Revision B.

1. The decision of the Responsible Authority is set aside. In permit application 2013/242/1 a permit is granted and directed to be issued for the land at 79-81 Asling Street, Brighton. The permit will allow:
   • Buildings and works associated with the construction of a 5-storey building with two basement levels,
   • use of the land for dwellings,
   • a waiver of the loading bay requirement, and
   • a reduction of the car parking requirement associated with the use of the land for the purpose of dwellings (visitors), offices/shops and restaurant/café,

in accordance with the endorsed plans and subject to the conditions contained in Appendix A.

Mr Chris Wren SC, instructed by Mr Mark Naughton of Planning & Property Partners. The following witnesses were called to give evidence:

• Mr Mark Sheppard, urban designer of David Lock Associates;
• Mr Peter Williams, architect of Williams Boag Pty Ltd;
• Mr Simon Howe, arboriculturist of John Patrick Pty Ltd;
• Mr Stuart Mc Gurn, town planner of ERM;
• Mr John Kiriakidis, traffic engineer of GTA consultants;
• Mr Christopher Goss, architect of Orbit Solutions Pty Ltd.

Mr Darren Wong, solicitor of Maddocks. He called the following witness to give evidence:

• Ms Sandra Rigo, town planner of Hansen Partnership.

For I S Qubrosi; N & R Tonkin; R & R Lingard; J Phillips; L Hattam; D Loney & J Le Page; J & J Scott; P Osbourne; P Kent.

• ground level offices (Asling Street), office/shops (Martin Street) and a restaurant/café (Martin/Asling Street corner);
• 47 dwellings (19 x 1 bedroom and 28 x 2 bedroom) on the four levels above;
• basement carparking set over two levels for 75 cars and 14 bicycles[1] with lift and stair access to all building levels;
• vehicle access from Martin Street;
• 3-storey street wall with the two upper most levels setback beyond the lower levels;
• retention of two large trees within the Asling Street frontage (a Lemon Scented Gum and a Smooth-barked Apple Myrtle).

The four residential levels are configured around a central courtyard/light court. External materials include pre-cast concrete and metal cladding to walls, obscure and clear glass to balconies and black powder coated window/door frames.

Section 79 of the Planning and Environment Act 1987.

• Commercial 1 (C1Z).
• No overlay controls apply.

• Clause 34.01-1 - Use for dwellings (accommodation) (C1Z).
• Clause 34.01-4 - Buildings and works (C1Z).
• Clause 52.06 - Reduction in carparking.
• Clause 52.07 - Waiver of loading bay.

• Clauses 10, 11, 15, 16, 21.02, 21.03, 21.06, 21.11 and 22.17.
• Clauses 52.06, 52.07, 52.35 and 65.

Located on the south-west corner of Martin and Asling Streets, the site is a rectangular shaped parcel of 1570sq.m comprising two lots with frontages of 33.6m and 45.6m to Asling and Martin Streets respectively.

The land is developed with two single-storey commercial buildings with at-grade carparks to each street. The site has an abuttal with a Right of Way (ROW) on its west side.

The site is located at the western edge of the Martin Street Activity Centre and is about 170m from the Gardenvale train station. Land immediately surrounding the site is used and developed primarily for commercial purposes while land further south and east is residential.

An accompanied inspection of the site and locality was carried out on the afternoon of Thursday 31 October 2013.

Glenhill Pty Ltd v Stonnington CC [2013] VCAT 488.

Rowcliffe Pty Ltd v Stonnnington CC [2004] VCAT 46

1. M & A Brighton Pty Ltd ("the Applicant") sought a planning permit from Bayside Council to construct a 5-storey mixed use development on a 1570sq.m site zoned Commercial in the Martin Street Activity Centre, Brighton. The Council resolved to refuse the proposal which has prompted this review. After the Tribunal directed that notice of the application be given, the proposal attracted 13 objections.
2. Amended plans were prepared which I substituted at the commencement of the hearing. In short, the number of dwellings has been reduced from 50 to 47 and various changes to the building's internal layout, setbacks at the fourth and fifth level and external finishes have been made.
3. The Council and a number of third parties maintain their opposition to the proposal. First and foremost, they share concerns about the suitability of the building's height, mass, scale and the development's impacts upon neighbourhood character including locally identified heritage values as well as the adequacy of carparking. The Council also prefers to see vehicle access from Asling rather than Martin Street to limit the potential for pedestrian conflicts in the main street and on urban design grounds - a position that is not supported by local residents represented by Mr Ellenbroek.
4. An issue related to the scale of the development is a strategic one. That is, whether this proposal is a suitable one for a large Neighbourhood Activity Centre in the context of planning scheme policies that refer to a hierarchy of activity centres. Opponents say that a building of five storeys is too great for a lower order activity centre like this one in Bayside and that a 5-storey building would be better placed in a Major Activity Centre because it sits at a higher level in the hierarchy.
5. Another issue of concern, particularly for nearby residents, is the prospect that approval of this development in the form proposed would potentially set a precedent for the scale of future development in this activity centre. The issue has a sharper focus because another planning application for a 5-storey mixed use development immediately west of the ROW at No. 116-120 Martin Street has been lodged with the Council and at the time of the hearing was pending a decision.
6. 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 Bayside Planning Scheme, I have decided that a permit should be granted. My reasons follow.

1. The land is within a Commercial 1 Zone [C1Z] and this is the only control that triggers the need for a planning permit. Thus, there are no other controls regulating built form, including building height. As well as implementing policy, there are two zone purposes:
   • To create vibrant mixed use commercial centres for retail, office, business, entertainment and community uses.
   • To provide for residential uses at densities complementary to the role and scale of the commercial centre.
2. Abutting land and properties opposite are similarly in a C1Z. The nearest Residential 1 zoned properties to the south commence at No. 73 and 88 Asling Street.
3. Although none apply to the review site or have direct abuttals with it, Heritage Overlays affect a number of properties nearby either individually or as an area. This includes commercial premises on the north side of Martin Street and on both sides to the east including a site specific overlay for the former State Savings Bank building opposite on the north-west corner. The Westley Avenue Precinct (HO663) affects residential properties in Asling and Westley Avenue to the south, commencing at No.'s 65 and 88 Asling Street.

1. At the broad level, statewide policies include objectives that seek to develop a network of activity centres as a focus for high quality development, activity and living for the whole community. The concentration of a variety of land uses that are highly accessible are further objectives.[2]
2. Strategies promote strategic planning of centres, improvements to their social, economic and environmental performance and amenity as well as business synergies. Sustainable transport access and housing diversity at higher densities in and around centres are also encouraged.
3. A hierarchy of activity centres based on five classifications is described at Clause 11.04-2, comprising the Central Activities District, Principal, Major, Specialised and Neighbourhood Activity Centres. Corresponding strategies seek to "define the role and function of activity centres, preferred uses, scale of development and links to the public transport system" based on these five classifications.
4. This site is within a Neighbourhood Activity Centre [NAC]. Strategies promote the clustering of complementary facilities to provide good and easy access, opportunities for co-location, sharing of resources and support for local economic activity. Higher density housing in and around NACs is encouraged by policy at Clause 11.04-2 with the caveat unique to such centres that development:

... is designed to fit the context and enhances the character of the area while providing a variety of housing options for different types of households.

1. Other key statewide policies include those at Clause 15.01 which promote good urban design to make the environment more liveable and attractive. Eleven design principles are to be applied for proposals like this one that are not covered by the provisions of Clause 55 and I have taken them into account. These are supplemented by the Guidelines for Higher Density Residential Development which is one of several reference documents under this policy.
2. Local policies include the strategic vision that "Bayside will be a city which protects and enhances the quality of the natural and built environment" (Clause 21.02). Economic development policies encourage development that contributes to the diversity and vibrancy of Bayside's activity centres.
3. The site is within both a 'Residential Opportunity Area' and the Martin Street centre is one of four large NACs in Bayside. Settlement and housing policies (Clause 21.03) recognise the need to accommodate population increases and respond to changing demographic profiles. Amongst other things, policies support housing diversity and seek to direct new medium density housing to Major Activity Centres, large NACs and Residential Opportunity Areas.
4. Policies directed towards the built and environment and heritage at Clause 21.06 also seek to achieve high quality built form and public realm design whilst also protecting the amenity of dwellings within and adjacent to activity centres. Key strategies include the following:
   • Ensure new development is compatible with the vision for the centre and avoids materially altering the scale of the centre.
   • Maintain and enhance the traditional, fine grain streetscape rhythm and building scale of activity centres.
   • Enhance the 'village' focus of neighbourhood Activity Centres.
   • Ensure that the interface between Activity Centres and adjacent residential areas is appropriate in terms of built form and amenity. ...
   • Ensure that buildings are designed to provide a transition in built form at the interface between business and residential precincts.
   • Maintain the spacious, low scale landscaped character of residential precincts, with residential buildings set back within vegetated front gardens and streetscapes. ...
5. Whether this proposal will materially alter the scale of the centre and enhance the 'village' focus are central issues in this case to which I will return.
6. The Local Areas policy at Clause 21.11 provides the most specific guidance in the planning scheme for the Martin Street activity centre. Unlike the other three designated large NACs in Bayside, a structure plan is however yet to be prepared for this centre although I understand that one is imminent. Relevant elements of policy at Clause 21.11-7 nonetheless include the vision:

To create a vibrant shopping centre which recognises and builds on the character and streetscape features of the centre.

1. Objectives seek to maintain the Edwardian design theme including elements in the public realm; promote attractive, well designed development that complements surrounding residential character and the bayside location and encourage urban design improvements that offer variety, interest and convenience to shoppers. The policy includes a reference document titled "Outline Development Plan for the Martin Street Commercial Activity Centre" prepared for the former City of Brighton in about 1991. A map from that document is included in Clause 21.11.7.
2. In terms of built form, policies seek to:
   • Retain existing buildings on the north side of Martin Street, west of Asling Street as an important focal built-form element for the centre.
3. In respect of the review site, the only relevant statement is the direction that the carpark is to be landscaped "along the street edges with suitable planting to improve the visual appearance, screen the parking area and provide greater visual continuity between the adjacent streetscape components".

1. There are a number of features about this case which are worthy of some comment - either as factual considerations that weigh in favour of the grant of a permit or because they are not in dispute.
2. In relation to the physical context, it is broadly accepted that the site is underutilised in its current form. Demolition of the existing buildings on the site is not at issue and they, together with the at-grade carpark to Martin Street, make a very limited positive contribution to the public realm.
3. The site is also a relatively large parcel involving the consolidation of two lots, in a corner location without any direct abuttals with residential properties. In addition to benefiting from its two street frontages, its western boundary abuts a ROW. It has the features of a strategic redevelopment site within the context of Clause 16.01-2, being within an activity centre and well located relative to public transport including heavy rail. These circumstances make the site a suitable candidate for more intense development.
4. There are no particular environmental conditions affecting the site itself that constrain development outcomes, such as heritage or flooding. I note however, that heritage controls apply to other commercial and residential properties nearby and there are two large trees on the site along the Asling Street frontage. The manner in which this proposal responds to these features is contentious.
5. In relation to the proposal itself, the 3-storey street wall was not in contention and I agree that this element would present an acceptable scale, form and design. Setting aside potential visual impacts, there are no direct residential amenity impacts, such as overlooking or overshadowing in the private realm.
6. Nor are the various uses proposed for the building at issue.
7. The internal amenity of dwellings was not seriously challenged and I accept Mr Williams' evidence that their internal configuration and design adopts techniques that maximise the use and sense of space such as customised joinery.
8. On the issue of building height, both the Council and Mr Ellenbroek do not support a 5-storey building on the site. However, an important consideration is that, in-principle both support a 4-storey building on the land. I acknowledge that their support for a 4-storey building is not unconditional. The Council through its witness Ms Rigo, suggests removal of the fourth storey (Level 3) and greater articulation to the south elevation at its upper most level. Mr Ellenbroek prefers the deletion of the fifth storey and a greater south boundary setback (of 5m) at the resultant upper most level.
9. While I must assess this application as a whole in determining its acceptability, a question that arises is whether the various criticisms of this proposal at 5-storeys would be overcome if reduced by one level to 4-storeys.
10. Ultimately, I have decided that the proposal is acceptable on its merits and that in the circumstances, the reasons advanced in support of a reduction of the building by one level do not justify such a conclusion for reasons to which I now turn.

Would a 5-storey building undermine the activity centre hierarchy?

1. One of the arguments advanced against this proposal is that the activity centre hierarchy would be undermined by the construction of a 5-storey building in this large NAC.
2. I am not persuaded that it would. While activity centre policy seeks to differentiate centres, that differentiation is not just limited to an assessment of building scale although like the Tribunal in Glenhill I agree with the general proposition that "the most intensive forms of development should be concentrated in higher order centres"[3].
3. Rather, activity centres serve a variety of functions and their role in the hierarchy is not defined purely by reference to building height. The type and mix of land uses they accommodate, their physical size and their geographic location relative to other activities, infrastructure and development all play a part in defining the role of activity centres.
4. Thus, as the Tribunal went on to observe in Glenhill:
   1. ... It is not as simple as saying that to respect the Activity Centre hierarchy, buildings within NACs must be lower than those in higher order centres.
5. Ultimately, as other divisions of the Tribunal have found, it is necessary to assess the particular context in both strategic and physical terms. That assessment may also result in variations between sites within the same centre. Because a 5-storey building might be acceptable on one site within a centre, this will not automatically translate to the same conclusion for another site within the same centre. It would be rare to find two sites with physical and strategic features that are precisely identical.
6. That has certainly been the case in other activity centres within Bayside where structure plans have been prepared and a more detailed examination of the context undertaken. For example; in the Highett activity centre which is another of the four large NACs, maximum building heights of between 2 and 4 storeys are envisaged, dependant on locational and design criteria.
7. Finally, while it is true that other large NACs in Bayside do not envisage development that is more than 4 storeys in height, in relative terms, I consider that a 5-storey response is not so dramatically different to conclude that it would undermine the activity centre hierarchy. I might have well formed a different view if, as Mr McGurn suggested, this proposal involved a 7-8 storey building.

Would a 5-storey building materially alter the centre's scale?

1. In light of my findings about the need to assess each proposal on a site by site basis by reference to the context in determining the acceptability of a design response, I conclude that this proposal is unlikely to materially alter the centre's scale.
2. In saying this I also acknowledge that the construction of a 5-storey building on this site will alter the immediate context of this site and that will be a relevant consideration when assessing other future development proposals at the centre. However, the question of building height remains only one consideration of many.

What about the proposal's response to the 'village' feel and focus?

1. Local policies[4] variously refer to the 'village feel' of activity centres in Bayside as a strength and the desirability of enhancing the 'village focus'.
2. The absence of any clear definition of what is meant by the term 'village' in the context of planning scheme policies, poses some difficulties in understanding what is intended by these references.
3. It is also relevant, as pointed out by Mr McGurn, that the vision for this activity centre at Clause 21.11-7 makes no reference to the term 'village' nor is it expressed anywhere in this policy. Moreover, this term is used to describe the Sandringham Village - a major activity centre where buildings at a height of 5 storeys are envisaged.
4. Therefore, in relation to at least the question of height, I do not think that policy references to the term 'village' are particularly helpful and nor can they be relied upon to conclude that a 5-storey building would be unacceptable in the Martin Street Activity Centre.

Does the proposal respond in an acceptable way to its strategic and physical context?

1. There was broad agreement that the centre is one that can be defined as low scale, predominantly one to two storeys with some limited examples of 3-storey buildings.
2. Balanced against this is the site's favourable physical and strategic attributes which I have already outlined. These include its location within a Residential Opportunity Area as well as having the hallmarks of a strategic redevelopment site.
3. In the circumstances, it must reasonably be expected that the more intense use of this site will bring about some change. It is a generally understood principle that 'to respect' does not mean 'to replicate' what already exists. But can this building still achieve an acceptable fit while being taller than existing built form around it?
4. I have concluded that the development enjoys considerable policy support and fits the strategic context. Whether it fits the physical context involves a detailed assessment of the particular physical features of the site and surrounds and the design response. In doing so, it is also necessary to determine whether the building will enhance the character of the area as directed by Clause 11.04-2.
5. As an overview, I consider that the development is of a relatively high design quality that is well resolved, adopting an interesting palette of materials that will make a positive contribution to the varied architecture that presently exists in and around the centre. This design quality is a matter that weighs in favour of the grant of a permit.
6. I also accept Mr Sheppard's evidence that the presentation of the street wall is integral to the success of the design response. The street wall is designed as the most readable element of the building with the two upper levels reading as secondary, recessive elements. Although the street wall and two upper levels adopt a different architectural language they work together as a cohesive whole.
7. I am also satisfied that the development will not undermine the significance of various heritage elements identified in the centre including the former State Savings Bank building at 139 Martin Street. I find that this proposal will not compete with this building opposite to the extent that it will not remain a focal point in the centre. I say this having considered the physical separation between the two sites which assists in mediating the different scale of each building, the degree of activity, advertising signs and variety of commercial premises all vying for the observer's attention as one moves into and through the centre from each of its four approaches. I also find that the design of the proposed building itself and the colour scheme which includes varied grey tones is in no way ostentatious or unreasonably demanding of the viewer's attention. While different, it is quite separate and complements the centre's feel.
8. In terms of the site's exposure, the site is a large one and on a corner. While the proposed development on it will have a discernible presence, a notable feature is the confined nature of viewsheds towards the site, limiting the reach of its visual impacts. Elements such as street trees along the Asling Street frontage and on approach from the west in Martin Street, as well as the arrangement of surrounding buildings all play a part in confining one's ability to read the building as a whole. From the east, the utilitarian presence of the railway bridge and verandah overhangs above the footpath contribute to a built form setting that unmistakeably differentiates itself from the residential areas beyond. These features assist in providing a setting that is capable of absorbing this development in a way that avoids one's experience of it as an unduly jarring or dominating one.
9. Overall, I find that the development would contribute to the centre's vibrancy and builds on the centre's character and streetscape features in a way which is consistent with the vision articulated by local policies for this centre. In coming to this conclusion I have assessed the proposal in more detail by reference to each of the site's interfaces.

1. I find that the Martin Street façade is well modulated whose vertical and horizontal expression is respectful of the finer grain pattern of development further east. I also find that the development addresses and will positively engage with street level activity in a way that will add vitality to this end of the centre.
2. The scale of the building will primarily read as four storeys given the upper level setbacks above the street wall and parapet design such that the fifth rather than the fourth level is most legible. I consider that the overall building scale responds appropriately to the site's substantial frontage and will achieve an acceptable streetscape fit. I am not persuaded that maintenance of the street wall but removal of either of the upper two levels as recommended by Ms Rigo and Mr Ellenbroek is necessary. I also accept Mr Williams' evidence that such a modification would result in the creation of a squat building with a disproportionate horizontal emphasis.

1. I consider that the retention of the two large trees on the site and the setting back of building from the Asling Street frontage is a sensitive response to its landscape context and to the presence of residential development opposite and further south. It also responds appropriately to the pattern of development in this part of the centre that is characterised by buildings set back from rather than sited on front boundaries.
2. Street trees and the two trees for retention, which are evergreen species will assist in filtering views of the building and integrating the development into its setting at the residential commercial divide. While I appreciate that the building will sit higher than the tree canopy, I consider that the upper levels of the building are sufficiently recessed so as not to have a visually dominating impact.
3. Ms Rigo raised concerns about the degree to which the street wall is articulated in Asling Street compared with its Martin Street counterpart. I am satisfied that the building has an appropriate level of horizontal and vertical relief along Asling Street.

1. Portions of the south elevation will be visible above and across the frontage of dwellings and commercial buildings when viewed further south from Asling Street and from Westley Avenue.
2. The building will introduce a new higher built form as a background element from these vantage points. While visible, it is a commonly understood principle that visibility alone is not the test for determining a proposal's acceptability.[5]
3. In the present case I consider that the appearance of the south elevation will not be unreasonably intrusive or detract in an unreasonable way from the heritage significance of the Westley Avenue precinct. I make this finding with consideration to the distances involved, which I estimate to be in the order of 70m from the north side of Westley Avenue such that the upper levels will read as a background element.
4. Closer range views will probably be possible from the front and back yards of dwellings at No.'s 69, 71 and 73 Asling Street, however visibility of the south elevation is likely to be restricted to partial views and glimpses given the presence of neighbouring buildings and vegetation in the foreground.
5. I consider that to experience built form in this manner is not an unreasonable outcome at the interface with a commercial centre.
6. In light of these findings, I am not persuaded that a greater level of detailing is required to the south elevation and nor are greater south boundary setbacks warranted. In relation to the latter, I am also satisfied that the proposal makes adequate provision for an equitable spread of development opportunity in relation to any future proposal on the neighbouring property at No. 77 Asling Street.

1. I find that the presentation of the west elevation is well articulated and will be acceptable when viewed on approach from Martin Street. This elevation will be partially obscured by the existing 2-storey building at No. 116-120 Martin Street and even more so if any higher built form is permitted on that site.
2. Like the south elevation, I consider that this side of the building provides for an equitable spread of development opportunity, noting the intervening presence of the 3m wide ROW. I agree however with Mr Sheppard's recommendation of increasing the balcony setback on level 3 to 1.8m from the west boundary.
3. I also agree with Mr McGurn's evidence that if the developments for both this site and at No. 116-120 Martin Street were approved, direct views to habitable rooms and private open spaces (i.e. balconies) would be possible between the buildings. Mr McGurn recommended the implementation of appropriate screening treatments by both developments to restrict direct views between the properties.[6]
4. I appreciate that there remains uncertainty about the future development of this neighbouring site and at the present time, this proposal largely faces a blank wall separated by the ROW. However, taking into account the proposed location of balconies in this case, some which are sited on or very close to the west boundary together with the desirability of maintaining an equitable spread of development potential I also consider it appropriate to require some screening techniques. In the circumstances, I consider it reasonable to require the use of obscure glass to the west side of balconies facing No. 116-120 Martin Street to a height of 1.5m above the finished floor level of balconies.

Are the proposed access and carparking arrangements acceptable?

1. The Council does not support the use of Martin Street for vehicle access, preferring the use of Asling Street given that there are higher pedestrian volumes along Martin Street. In particular, concerns were raised about pedestrian safety given that there are many children who walk pass the site to and from local schools - primarily Star of the Sea College further west along Martin Street.
2. In principle, I agree that it is ordinarily preferable to locate vehicle access points where pedestrian volumes are lower and in a commercial setting if available, this commonly involves the use of laneways or side streets for corner sites. Aside from limiting the potential for pedestrian and vehicle conflicts, this arrangement has other urban design benefits. It provides better opportunities for street level activation and interest while minimising extensive gaps along frontages.[7]
3. As always, there is a need to balance conflicting objectives in favour of net community benefit. Having carefully considered this issue, the particular circumstances of this case lead me to conclude that on balance, the preferable outcome is to use Martin Street for vehicle access. I say this for a number of reasons.
4. Firstly, both trees along the Asling Street frontage are long established and I agree with Mr Howe's evidence that they are of high retention value and make an important landscape contribution to the area. I support their retention.
5. Secondly, the site is located near the western edge of the activity centre rather than within its central core where the lot pattern and levels of activity are quite different. Lots are wider and land uses are dominated by personal service type uses rather than the more traditional retail activity on narrower lots further east. The historic use of this part of the site for vehicle access brings with it a degree of familiarity about its on-going use by vehicles although I place less weight on this consideration than others given that this proposal involves a complete redevelopment of the site and its more intense use.
6. Thirdly, having visited the area at the end of the school day, I accept that many students do walk past the site[8]. However, these students are from a secondary school and are required to cross several streets on their journey past the site and beyond. In the circumstances, I would expect that they would have reasonably good road safety awareness.
7. Finally, I accept Mr Kiriakidis's evidence that vehicles can exit in a forward direction, ramp grades and sight distances are fully compliant with relevant standards and additional sight is available across the abutting ROW.
8. I am otherwise satisfied that the proposed access arrangements are acceptable and would not unreasonably impact upon the safe and efficient operation of the local road network or cause any unacceptable loss of amenity.

1. Concerns were raised by the Council and by residents about the adequacy of the proposed number of carparking spaces and the prospect of overspill parking kerbside throughout the area and in particular in front of nearby residential properties. These concerns are limited to the lack of on-site visitor spaces for the dwellings and the office use. That is, the provision of 3 spaces for the restaurant use is considered to be acceptable. It is contended that 11 additional on-site car spaces are required, comprising 5 for visitors and 6 for the office use.
2. In support of these concerns, Council contends that the methodology adopted by Mr Kiriakidis to calculate the required number of carparking spaces for the office use underestimates the statutory parking requirement.
3. A total of 75 car spaces are proposed on-site. This would reduce to 74 if two spaces are converted to one disabled car space as recommended by Mr Kiriakidis - a modification that I support.
4. Of these, 49 spaces are proposed for allocation to the dwellings, 22 to the office/shop uses including 1 disabled space and 3 spaces for the restaurant. No on-site visitor parking is proposed for any of the uses.
5. The standard carparking rates set out at Clause 52.06 of the planning scheme are 1 car space per 1 or 2 bedroom dwelling for residents and 1 visitor car space for every 5 dwellings. For 47 dwellings, this equates to 47 spaces for residents and 9 visitor spaces.
6. In relation to the office use, I agree with Mr Wong's submission that the 'Net Floor Area' is the starting point in assessing the standard parking requirement under Clause 52.06. This is defined under Clause 72 of the planning scheme as:

The total floor area of all floors of all buildings on a site. It includes half the width of any party wall and the full width of all other walls. It does not include the area of stairs, loading bays, accessways, or car parking areas, or any area occupied by machinery required for air conditioning, heating, power supply, or lifts.

1. Contrary to Mr Wong's proposition, it was Mr Kiriakidis' opinion that the term "accessways" excludes indoor corridors, entry lobbies and similar trafficable indoor areas by pedestrians.
2. I am inclined towards the view that the term "accessways" in this context does not exclude indoor corridors, entry lobbies and the like in common use but rather is a reference to accessways for vehicles. I note that the term accessways is also used extensively in Clause 52.06 to describe vehicle accessways. By contrast, the definition of "Net Leasable Floor Area" is a more confined measure of floor space within a building and explicitly precludes such areas by reference to the words "public or common tenancy areas, such as malls, verandahs, or public conveniences".
3. If this interpretation is correct, an additional 7 car spaces would be required to satisfy the statutory rate for offices, equivalent to a total provision of 32 spaces,[9] representing a shortfall of 10 spaces.
4. If I am wrong about this, permission is required for a reduction of 3 spaces in relation to the office use.
5. In reaching my findings I have considered both interpretations of NFA, the design response, the evidence and submissions made in relation to this matter together with my observations of parking conditions and the matters I am required to consider when assessing proposals for a reduction in carparking under Clause 52.06-6.
6. Firstly, taking into account the relatively compact size of the dwellings and the rates specified under Clause 52.06, I will require a reallocation of 2 resident spaces to the office use, so that each dwelling is provided with one car space. This will continue to meet the statutory parking rate for residents of one and two bedroom dwellings. The reduction in parking sought for the offices will then be between 1 and 8 spaces which I expect will largely comprise visitor demand.
7. With this modification I am satisfied that the reduction in parking sought is acceptable, will be overwhelmingly short term in nature and can be met by either on-street parking in the centre, public transport (which includes 5 bus routes within 100m and the Gardenvale train station within 170m), other means of personal transport such as cycling or a combination of these. I also note that peak resident visitor parking demands are unlikely to be co-incident with peak visitor demand for the office use. Relevant also is that substantial parking vacancies exist throughout the centre at night when visitor parking for the restaurant and dwellings are likely to be at their greatest levels. While there is a higher demand for on-street parking spaces closer to the site on the basis of surveys undertaken by Mr Kiriakidis' firm, I accept Mr Kiriakidis' evidence that this development will most likely lead to some redistribution in demand for spaces throughout the centre as a whole.
8. I acknowledge that this may well lead to a greater demand for parking spaces along residential frontages in Asling Street and perhaps in Westley Avenue because of their more convenient location proximate to the review site. I note however that parking restrictions already exist in these locations and if necessary these may need to be reviewed by the Council to limit any impacts from overspill parking.
9. I am not however persuaded that such an outcome warrants a refusal of this proposal. The issue remains one of better managing the use of a publically available resource whose efficient use is contemplated under the planning scheme,[10] while minimising amenity impacts at this commercial/residential interface.
10. Importantly, I am satisfied that the total pool of available parking at the centre without a residential frontage can accommodate any excess demand generated by this proposal.
11. I find that on balance, the number of on-site spaces proposed is acceptable.

Are there are any other matters that warrant refusal of the proposal?

1. At the hearing, I queried the location of the proposed waste storage areas and means of accessing bins for collection.
2. Two waste storage areas are shown within dedicated rooms at ground level, with a garbage chute servicing the residential refuse room. My support for this arrangement is limited to the commercial refuse room whose bins can be wheeled outside via the western ramp to the ROW past service areas. I do not however support the use of the north-south corridor to Martin Street or the entry lobby area to Asling Street for this purpose. Both involve the use of public areas that travel past the only entries to two office suites and the shared meeting room.
3. I also consider that the placement of the residential refuse room at ground level opposite the shared meeting room is a poor design response. In this location, the potential for noise, odours and general activity involving bin movements along corridors past office tenancies, some which only have internal corridor access, is likely to diminish the efficiency and amenity of the building at this level. Given that the residential refuse room is to service 47 dwellings, the number of bins and their size comprising three 660 litre bins for general waste and five 240 litre bins for recyclables[11] is not insignificant.
4. I therefore find that the residential refuse area should be placed within the basement and this is to be arranged so that no loss of parking spaces occurs.
5. These matters are best addressed in a detailed waste management plan.
6. The plan will also need to address the waste arrangements for the restaurant/café and specify the use of a private waste collection service, the type of waste collection vehicle, frequency of collection and intended collection points so as to minimise any disruption to traffic flows within the site or on the surrounding road network, to the Council's satisfaction.

1. I am satisfied that reliance upon existing on-street loading bays nearby, including one on the opposite side of Asling Street is an acceptable approach.

1. Storage for resident use is to be provided within the basement and on the residential levels near the lift core. To avoid any ambiguity, I will require plan notations that these are to be made available for use by residents.

1. A number of other matters about draft permit conditions were raised by the parties. With respect to those matters, other than those already addressed above, I have considered submissions about them in formulating permit conditions.
2. This has resulted in some consequential redrafting, refinement and re-ordering of conditions and the addition of new conditions including:
   • submission of a landscape plan for approval by the Council including design and drainage details of the central internal courtyard and planter boxes;
   • the Construction Management Plan is to be submitted for approval by the Council and is to be implemented to its satisfaction;
   • a requirement that plant and equipment is to be substantially screened from public view including details of screening devices;
   • a detailed schedule and samples of external finishes and materials including reference to the use of colorbond copper sub-base with a universal primer to the cladding material which features on the fourth level;
   • the Asling Street title boundary correctly depicted on the north elevation (Sheet TP3.01).

1. This proposal is for a well designed contemporary 5-storey mixed use development that is capable of being assimilated into its surrounds with minimal off-site amenity or visual impacts. Although it will introduce a new and larger building than what presently exists, it will make a positive and interesting contribution to the mixed architecture of the Martin Street Activity Centre.
2. The proposal enjoys a reasonably high degree of strategic support, being located on a large corner site - a strategic redevelopment site - bereft of any direct residential abuttals and in an area designated by Council's own policies as a Residential Opportunity Area.
3. I find that this proposal will add vitality to this centre without undermining the status of other higher order activity centres in Bayside.
4. For the reasons I have set out, the decision of the Responsible Authority is set aside.
5. I will direct the grant of a permit subject to conditions.

• Buildings and works associated with the construction of a 5-storey building with two basement levels,
• use of the land for dwellings,
• a waiver of the loading bay requirement, and
• a reduction of the car parking requirement associated with the use of the land for the purpose of dwellings (visitors), offices/shops and restaurant/café,

1. Before the developments starts, amended plans must be submitted to and approved by the Responsible Authority. When approved, the plans will form part of the permit. The plans must be drawn to scale and generally be in accordance with the plans prepared by Daryl Pelchen Architect comprising sheets TP0.00, TP1.01 to TP1.06, TP2.01 to TP2.08, TP3.01 to TP3.04, TP4.01 to TP4.03, TP5.01 to TP5.03, all inclusive and TP6.01; Project No. 1214 Revision B dated September 2013 and three copies must be provided. The amended plans must show:-
   • (a) the locations of all plant and equipment including air conditioning units and condensers, substantially screened from public view to the satisfaction of the Responsible Authority, including design details, materials colours and finishes of screening devices;
   • (b) the Asling Street title boundary correctly depicted on the north elevation (Sheet TP3.01);
   • (c) the west face of balconies on level 3 setback 1.8m from the west boundary;
   • (d) the use of obscure glass to the west side of balconies to a height of 1.5m above the finished balcony floor level where facing No. 116 Martin Street;
   • (e) plan notations showing the provision of dedicated storage areas that are to be made available for use by residents of each dwelling, including storage areas on Levels 1 to 4;
   • (f) the provision of at least 74 car parking spaces on the site including one disabled space;
   • (g) how the on-site car parking spaces are to be allocated to each of the uses on the land, based on the following:
     • (i) a rate of 1 car space per one or two bedroom dwelling,
     • (ii) 3 car spaces for the restaurant/café, and
     • (iii) the remaining car spaces including the disabled space allocated to the offices/shop uses on a pro-rata basis unless alternative arrangements are made to the satisfaction of the Responsible Authority;
   • (h) deletion of the residential refuse room from the ground floor and its relocation to the basement, including the extension of the garbage chute to the basement. No net less of carparking spaces is to occur.
   • (i) a detailed schedule and samples of external finishes and materials including reference to the use of colorbond copper sub-base with a universal primer to the cladding material which features on the fourth level
   • (j) any modifications arising from the recommendations contained in the approved Tree Management Plan required by Condition 11 of this permit.
2. The development and location of the uses as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
3. Before the occupation of the building commences or by such later date as is approved in writing by the Responsible Authority, all buildings and works and the conditions of this permit must be carried out and completed to the satisfaction of the Responsible Authority.
4. The predominant activity carried out in the restaurant/cafe during all trading hours must be the preparation and serving of meals for consumption on the premises.
5. No more than 60 seats may be made available at any one time to patrons on the premises of the restaurant/cafe, without the written consent of the Responsible Authority.
6. All pipes (excluding downpipes), fixtures, fittings and vents servicing the building must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
7. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building without the prior written consent of the Responsible Authority.
8. The vehicular crossing leading into the site must be constructed to the road to suit the proposed driveway to the satisfaction of the Responsible Authority.
9. Prior to the issue of a building permit for the development allowed under this permit, a landscape plan prepared by a landscape architect to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will form part of this permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must include the following:
   • (a) A planting schedule of all proposed trees, shrubs and ground covers including botanical names, cultivars, common names, pot sizes, sizes at maturity and quantities of each plant;
   • (b) Design and drainage details of the central internal courtyard and planter boxes including cross-sections;
   • (c) Method of irrigating all landscaped areas including planter boxes.
10. Before the occupation of the building, or by such later date as is approved by the Responsible Authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
11. Prior to the issue of a building permit for the development allowed under this permit but before the development starts, excluding root exploratory works, a Tree Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The Tree Management Plan must be generally in accordance with the recommendations contained in the statement of evidence dated October 2013 prepared by Simon Howe for the land. The plan must be implemented to the satisfaction of the Responsible Authority.
12. Prior to the issue of a building permit for the development allowed under this permit, the applicant must submit to the Responsible Authority, a Construction Management Plan (CMP) for approval. Once approved, this plan will form part of the permit. This CMP must state that:
    • Pedestrian access will be maintained at all times along both the Asling Street and Martin Street footpaths adjacent to the site (unless otherwise agreed by the Responsible Authority);
    • The Asling Street and Martin Street intersection will not be obstructed during construction works; and
    • All site facilities will be located on site during the construction period.

The CMP must be implemented to the satisfaction of the Responsible Authority.

1. Prior to the endorsement of plans under Condition 1, a Waste Management Plan must be submitted to the Responsible Authority for approval. When approved, the plan will be endorsed and will then form part of this permit. The Waste Management Plan must include (but is not limited to), the following items:
   • (a) Responsibility for collection by a private contractor and how collection of refuse and recycling materials will be managed;
   • (b) Use of the western ramp/corridor to the ROW for bins in the commercial refuse room, including that no bins are to be taken outside through the northern and eastern corridors to Martin and Asling Street respectively;
   • (c) The size and details of the waste collection vehicle to service the site;
   • (d) The frequency and hours for the collection of all waste and recyclables;
   • (e) The type of waste and recycling bins to be used;
   • (f) Collection of waste to occur from within the site boundaries and that no bins will be left on the nature strip for collection unless alternative arrangements are made to the satisfaction of the Responsible Authority;
   • (g) Collection measures to minimise disruption to traffic flows within the site and on the surrounding road network;
   • (h) Waste management arrangements for the restaurant/café including the location of bins; and
   • (i) Any other relevant matter.
2. The approved Waste Management Plan must be implemented to the satisfaction of the Responsible Authority.
3. Waste storage areas must be kept in a clean and tidy condition and free from offensive odours, to the satisfaction of the Responsible Authority.
4. Before the commencement of building works, detailed stormwater management plans must be submitted to and be approved by the Responsible Authority. When approved, these plans will form part of the permit. These plans must be drawn to scale with dimensions and three copies must be provided. The plans must accord with the provisions of Clause 22.08 (Stormwater management) of the Bayside Planning Scheme and must show:-
   • (a) The type of water sensitive urban design stormwater treatment measures to be used;
   • (b) The location of the water sensitive urban design stormwater treatment measures in relation to buildings, sealed surfaces and landscaped areas;
   • (c) Design details of the water sensitive urban design stormwater treatment measures, including cross sections.

The plans must be accompanied by a report in accordance with an industry accepted performance measurement tool which details the treatment performance achieved and demonstrates the level of compliance with the Urban Stormwater - Best Practice Environmental Management Guidelines, CSIRO 1999.

The water sensitive urban design stormwater treatment system as shown on the endorsed plans must be retained and maintained at all times in accordance with the Urban Stormwater - Best Practice Environmental Management Guidelines, CSIRO 1999, to the satisfaction of the Responsible Authority.

1. Before the development begins, three copies of detailed plans indicating the method of stormwater discharge to the nominated point of discharge must be lodged with Council's Asset Management Department for approval. Connection of the drainage system to the development must be to an existing legal point(s) of discharge. If the point of discharge cannot be located then the applicant may apply for a legal point of discharge and local drain information, if available, otherwise on site verification should be undertaken by the applicant.
2. Stormwater discharge is to be retained on site to the pre-development level of peak stormwater discharge. The development must have a 'Stormwater Detention System' installed, the design capacity of which is to be approved by Council.
3. All on-site stormwater is to be collected from the hard surfaces and must not be allowed to flow uncontrolled into adjoining properties. The on-site drainage system must prevent discharge from the driveway onto the footpath. Such a system may include either:
   • (a) A trench grate (150mm minimum internal width) located within the property; and/or
   • (b) Shaping the driveway so that water is collected in a grated pit on the property; and/or
   • (c) Another Council approved structure, layout or equipment.
4. This permit will expire if one of the following circumstances applies:
   • (a) The development is not started within two years of the date of this permit.
   • (b) The development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within six months afterwards, or within 12 months afterwards if the development commenced lawfully before the permit expired.

[1] An additional 8 visitor bicycle parking spaces are proposed at the ground level entry to Asling Street.

[2] See Clauses 11.01-1 and 11.01-2 of all Victorian Planning Schemes.

[4] See for example Clause 21.06 and 21.07.

[5] See Rowcliffe Pty Ltd v Stonnington CC [2004] VCAT 46 at paragraph 54.

[7] See for example Objectives 3.2 and 3.5 in Guidelines for Higher Density Residential Development.

[8] I would also expect a similar pattern in the opposite direction when students walk to school in the morning.

[9] Based on the rate specified in Clause 52.06 of 3.5 spaces per 100sq.m of NFA.

[10] See for example policy at Clause 19 and the Car parking purposes at Clause 52.06.

[11] Based on the assessment contained in the Waste Management Plan prepared by Leigh Design dated 8 May 2013 prepared for the permit applicant.