8 The permit holder must ensure that internal noise levels of the sleeping areas of the proposed dwellings must not exceed 35dB(A) with the windows closed; and for all other habitable rooms, levels must not exceed 40dB(A) with windows closed in accordance with relevant Australian Standards for acoustic control (including AS2107-1987 and AS3761 - Road Traffic).

9 The development must not commence until a Development Contribution Fee of $150.72 has been paid to the Responsible Authority.

10 Disabled access to the office must be provided to the satisfaction of the Responsible Authority.

11 All work carried out to provide disabled access must be constructed in accordance with Australian Standards Design for Access and Mobility: AS1428.1-2001 and AS1428.4-2002.

12 The layout of the site and size, design and location of buildings and works as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

13 The layout and description of the use(s) as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

14 No new buildings or works shall be constructed/erected and no existing buildings enlarged, rebuilt or extended without the prior written consent of the Responsible Authority.

The amenity of the area must not be adversely affected by the use or development as a result of the:

i transport of materials, goods or commodities to or from the land; and/or

ii appearance of any building, works, stored goods or materials; and/or

iii emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; and/or

or in any other way, to the satisfaction of the Responsible Authority.

15 All outdoor lighting must be baffled and/or located to prevent light from the site causing detriment to the locality to the satisfaction of the Responsible Authority.

16 All pipes. fixtures, fittings and vents servicing any building on the site other than stormwater downpipes must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.

17 Adequate provision must be made for the storage and collection of garbage, bottles and other solid wastes in bins or receptacles, to the satisfaction of the Responsible Authority.

18 All bins and receptacles used for the storage and collection of garbage, bottles and other solid wastes must be kept in a storage area screened from view, to the satisfaction of the Responsible Authority.

19 All bins and receptacles must be maintained in a clean and tidy condition and free from offensive odour, to the satisfaction of the Responsible Authority.

20 Provision must be made on the site for letter boxes and receptacles for newspapers to the satisfaction of the Responsible Authority.

21 Collection of waste must be in accordance with a Waste Management Plan as approved by the Responsible Authority and must be undertaken by a private contractor and must not cause unreasonable disturbance to nearby residential properties to the satisfaction of the Responsible Authority. Collection of waste must only occur between the following hours:

22 The walls on the boundary of adjoining properties shall be cleaned and finished in a manner to the satisfaction of the Responsible Authority.

23 No plant, equipment, services, or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.

24 Areas set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must be:

* properly formed to such levels that they can be used in accordance with the plans;

* line-marked to indicate each car space and all access lanes;

* clearly marked to show the direction of traffic along the access lanes and driveways

Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose.

25 External lighting of the areas set aside for car parking, access lanes and driveways must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.

26 A minimum of 16 car parking spaces must be provided on the land for the development/use, including 4 spaces set aside and clearly marked for use by the office, 2 spaces set aside and clearly marked for use by visitors and 10 spaces set aside and clearly marked for use by the dwellings at a rate of minimum 1 car space per dwelling.

27 Before the commencement of buildings and works, a detailed Landscape Plan to the satisfaction of the Responsible Authority must be submitted to, and approved by the Responsible Authority. When the Landscape Plan is approved, it will become an endorsed plan forming part of this Permit. The Landscape Plan must incorporate:

* Buildings and trees (including botanical names) on neighbouring properties within 3 metres of the boundary.

* A planting schedule of all proposed vegetation including botanical names; common names; pot sizes; sizes at maturity; quantities of each plant; and details of surface finishes of pathways and driveways.

* Landscaping and planting at the rear of the site. .

* Advanced canopy trees (minimum 2.0 metres tall when planted) in the following areas:

Ø one in the garden bed south of visitor car space 1

Ø one in the garden bed south of visitor car space 2

28 The landscaping as shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the Responsible Authority before the occupation of the development and/or the commencement of the use or at such later date as is approved by the Responsible Authority in writing.

29 The landscaping as shown on the endorsed Landscape Plan must be maintained, and any dead, diseased or damaged plant replaced in accordance with the landscaping plan to the satisfaction of the Responsible Authority.

30 No buildings or works are to be constructed over any easement or other restriction on the land or any sewers, drains, pipes, wires or cables under the control of a public authority without the prior written consent of the relevant authority and the Responsible Authority.

* The development and/or use does not start within two (2) years from the date of this Permit; or

* The development is not completed within four (4) years of the date of this Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before this Permit expires or within three (3) months after the expiry date.

Mr D Scally, Solicitor of Best Hooper. Mr Scally called the following witnesses:

Mr M Bastone, Town Planner, ERM Pty Ltd; Mr J Douglas, Architect, JDA Architects; Mr R Fairlie, Traffic Engineer, Ratio Consultants Pty Ltd.

Mr M Stanojevic, Town Planner represented Glen Eira City Council.

Ms M Foley of Counsel, instructed by Garland Hawthorn Brahe represented the Roads Corporation.

Mr A Henningham represented himself and Ms T Wight.

1 By letter of 12 March 2004, the applicant for review advised the Tribunal that at the hearing of this matter they would request to substitute amended plans for those originally lodged. This request and the plans were forwarded to all parties.

2 At the commencement of the hearing the Applicant called Mr Douglas, the building architect, to explain the modifications. Mr Douglas also explained the proposed design of the front of the building and its ability to be separated from the rest of the structure. Mr. Douglas was available to answer questions on the modifications and on the design at the North Road frontage. While it is unnecessary to detail all of the changes it was common ground that the modifications were a reduction in the footprint of the building and an increase in the number of car spaces.

3 Council and the other parties did not object to the substitution of plans. In fact, Council advised that on the basis of the amended plans they would no longer pursue Grounds of Refusal No. 1 which related to access and parking. The Council maintained its position with respect to grounds of refusal 2, 3 and 4.

4 Accordingly, I accept the modified plans and I substituted them accordingly.

5 There is no need to describe the proposal in any detail as it was well documented in the written submissions of the parties. In very brief terms, it is proposed to demolish the existing buildings on the site and to erect a three storey building, being an office at ground level with 16 car spaces behind it, and then two levels of ten residential units above. The building reaches a maximum height of just under 10 metres.

6 I have inspected the subject site and surrounding area and I confirm the descriptions provided at the hearing, especially of Council, so there is no need to repeat those here, save to note that the site consists of two blocks in the mid point of an older style local shopping centre on North Road. The centre has assumed a different role to its original purpose with lower order service outlets replacing shops. The centre is opposite a new integrated transport service centre complete with car wash, petrol station and McDonalds food outlet.

7 Other than the local centre and the transport service centre, this part of the Bentleigh East is almost exclusively residential with detached housing being dominant. To the south of the site there are detached houses fronting either Melva Street or Poet Road. Nos. 25 Melva Street (the Stone residence) and Nos. 28 Poet Road (the Pym residence) are to the rear of the subject site which is separated from them by a three metre wide concrete lane.

8 The subject site is within the Business 1 zone under the Glen Eira Planning Scheme. Council advised that planning permission was required for both use and development for the office and dwelling components. The site abuts a Residential 1 Zone to the south and a Road Zone Category 1 to the north (North Road).

9 The review site is affected by two overlays. The Development Contributions Plan Overlay (DCPO) affects all properties in the municipality and it generates the requirement for a fee where there is an increase in site building coverage. Most relevantly, the first three metres of the site is affected by a Public Acquisition Overlay (PAO) where VicRoads is nominated as the acquiring authority. The overlay applies on the south side of North Road from Warrigal Road to Coban Street which is a distance of about 1.5kms. Evidently, the north side of North Road (in the Monash Planning Scheme) has a similar overlay.

10 In addition to these statutory provisions there are an array of relevant state and local policy provisions in the Glen Eira Planning Scheme and these are discussed in greater detail below.

11 When the application was advertised by Council, thirty three (33) objections were received citing grounds including, (but not limited to) parking, traffic, overshadowing, loss of privacy, height, bulk, density, noise, rubbish and overdevelopment. Council ultimately refused the application on four grounds being:

* The amount of car parking proposed on the site is inadequate. This lack of on-site parking will have an adverse impact on the surrounding area.

* The resultant decreased articulation to the front façade that is caused by VicRoads setback requirements will produce a stark and imposing elevation that does not provide an interesting or positive contribution to the streetscape.

* The mass and scale of the proposed building will have an adverse impact on the adjoining properties to the south, is unsympathetic to the neighbourhood character as it does not represent a reasonable transition and is beyond that envisaged in Council's strategic direction for a Local Centre.

* The proposed development constitutes an overdevelopment of the land.

12 I have inspected the site and the area and I have viewed the review site from the vantage of the Stone property and the Pym property. I have also reviewed all the material presented during the hearing. I believe that there are four issues which need to be addressed being:

13 I was advised that the proposed widening of North Road has been identified on relevant planning schemes since about 1955. The purpose of the widening is to provide for extra lanes of traffic on this well used east/west artery. The widening has obviously been progressively implemented over many years with the subject area being the only narrow (or unwidened) section of North Road from Nepean Highway in the west to the Monash Freeway in the east. Evidently VicRoads has no immediate plans for the widening and only a few properties in the affected 1.5km strip have been the subject of land acquisition. Nonetheless Roads Corporation submitted, and I agree, that this is a substantial infrastructure project which may have a long lead time requiring decisions many years out from construction.

14 I was advised of a number of relevant Tribunal decisions over the years which have addressed the principles in dealing with similar acquisition objectives. In the unreported decision of the Administrative Appeals Tribunal, Lofts Quarries v Kingston City Council & Ors (1997/56470; 1997/80103), the Tribunal noted (among other things) that:

* These road reserves remain an important part of the strategic plan for the future development of Metropolitan Melbourne, they are not defunct or obsolete reservations no longer required by the relevant authority.

* It is true that this land has been affected for a very long time by these road reservations, while this does affect the way in which the land can be used it is simply a reflection of the long lead time required for the planning of major metropolitan infrastructure, and it is this need for long term planning which is one of the basic reasons for the existence of a planning system and planning schemes.

* The objectives for planning in Victoria include providing for the orderly and economic development of land, and for the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community. VicRoads and its predecessors have used the planning processes available to them to set aside both the land within the Main Road reservation and in the Proposed Road Widening Reservation for the future development of a main road either as an arterial road or as a freeway in this location.

15 The Tribunal in Lofts Quarries then went on to comment that:

Having regard to these considerations the Tribunal believes it would be inappropriate for the Tribunal to permit any development within the reserved land which would compromise any possible option for the design of a road within this reserve. In the Tribunal's view the Applicants have not demonstrated that the use of the land within the proposed road widening reservation for the purpose of an extractive industry would not prevent the adoption of various forms of road development which may be considered desirable from a broader planning context.

16 It seems to me that the "test" that this case establishes is whether or not it can be demonstrated that the intermediate use of the land would prevent the ultimate execution of the road widening. In other words, would the long term purpose of the reservation/overlay, be prejudiced by short term use and development.

17 In Lewenbery v City of Stonnington (1997/88586) the Tribunal considered a request to construct a first floor office building above two existing shops. The site was affected by a 20m wide road widening reservation for Punt Road. Interestingly, the shops on the site were erected as a result of a permit issued at the direction of the (then) Town Planning Appeals Tribunal in 1980. The decision in Lewenbery noted:

The Tribunal at that time was of the view that the land would not be required for road purposes within a fifteen year period, and therefore the issuing of a permit was appropriate, but with a condition that no compensation be payable with respect to anything done in accordance with the permit after the expiration of fifteen years in respect to the subject land or any part of the subject land.

18 The Tribunal concluded in Lewenbery that the permit for the first floor office extension should be refused as, in its view:

..... it is inappropriate to permit further development on this site in the context of its zoning as a Road Widening Reservation, and the element of uncertainty as to when this reservation would be needed for the zoned purpose.

19 They added that the grant of the permit would have compromised the primary purpose for which the land is reserved. I think that the "test" applied in Lewenbery is quite similar to that in Lofts Quarries. Namely, will the purpose of the reservation be prejudiced by the use or development?

20 I note that both of these cases occurred prior to the introduction of the "new format" planning schemes and both involved "reservations" as opposed to overlays. Reservations were applied in lieu of a zone, and they reserved land for a certain purpose. In new format schemes, "overlays" sit on top of the zone (in this case Business 1) and provide an extra layer of control to meet a specific purpose.

21 The detail of the Public Acquisition Overlay is instructive as to its purposes and to its decision guidelines. The relevant purpose is:

To reserve land for a public purpose and to ensure that changes to the use or development of the land do not prejudice the purpose for which the land is to be acquired.

22 I regard this purpose as most relevant and it is not unlike the "tests" applied in both Lifts Quarries and Lewenbury. The decision guidelines are also relevant and they clearly contemplate that permits will issue within the overlay area as it notes that any permit granted may be conditional on:

* The extent of alterations and extensions to an existing building and works, and the materials that may be used.

* The location, dimensions, design and material or a new building or works.

* The demolition, removal or alteration of any buildings or works.

* The demolition or removal of buildings or works constructed or carried out in accordance with a permit under this clause.

* No compensation being payable for the demolition or removal of any buildings or works constructed under the permit.

23 I was advised by Mr Douglas that the front 3m of the building had been designed in such a way that it could be removed at any later date without compromising the structural integrity of the rest of the building. While Mr Douglas agreed with Ms Foley that he was not a qualified building surveyor, he said that based on his architectural expertise, the first 3m of the structure was quite readily able to be isolated and separated from the rest of the building. According to Mr. Douglas, in the event of the widening proceeding, then the front skin would, in effect, be able to be moved 3m to the south and attached to the remnant structure.

24 Since the introduction of new format schemes there has been one other relevant Tribunal decision in P & T Pantelakis v Monash City Council v Casey & Ors (P3125/2002; P3126/2002; P3127/2002). In that case, the Tribunal adopted the comments of both Lofts Quarries & Lewenbery and said that:

....... there are overriding public policy considerations that support the PAO over this land except for the small above ground intrusions proposed in Scheme 1.

25 These "small above ground intrusions" involved a glazed entrance canopy and balconies which protruded 1.6m into the overlay widening area which were approved.

26 In my view, a practical solution for this issue is required. On the available evidence it may be many years before VicRoads is in a position to do anything about widening North Road. I agree that this is a worthwhile public infrastructure project and its long term implementation should not be jeopardised.

27 In the meantime though, land should not be sterilised from a short or medium term use so long as the long term objective is maintained. In my view that long term objective could be maintained if the new structure is designed in such a way that it is "detachable" from the rest of the building, while not compromising the structural integrity of the rest of the building. I believe that this design is capable of accommodating that pre-requisite and accordingly I will not require the 3m setback requested by VicRoads in the event of a permit being granted. I am satisfied (unlike in Lofts) that the applicants have demonstrated that the long term road widening objective will not be compromised by the short/medium term use.

28 I finally note that the decision guidelines of the overlay address the issue of compensation and, once again, in the event of a permit issuing, then this condition would be needed. While I am reluctant to use legal agreements to achieve outcomes that could easily be done by way of permit, I feel that in this case, which may have a very long lead time, and potentially a mixed ownership regime, the safer option will be to require such an agreement.

29 I conclude that it is an appropriate interim response to use and develop the land in accordance with its zone so long as the long term objective of the acquisition overlay is not prejudiced by the "detachable" structure on the land.

30 It was common ground that the proposal enjoyed a degree of policy support as expressed in the existing Glen Eira Planning Scheme and in a well advanced amendment to that Scheme (Amendment C25).

31 The existing policy direction includes Melbourne 2030 with its emphasis on increased densities near activity centres and public transport, and the State and Local Planning Policy Frameworks of the Scheme. Clause 21 (the MSS) nominates a hierarchy of locations where medium to high density development is encouraged and Clause 22 has a relevant commercial centres policy which, among other things, notes that residential activity is to be promoted within and surrounding centres but not at ground level at the expense of core retailing.

32 Council acknowledged that while this site and centre was not part of the retail hierarchy and so not explicitly an area for higher densities, they had sought to redress this in Amendment C25 which was the implementation of Council's Housing and Residential Development Strategy. This amendment has been supported by a Panel and is with the Minister awaiting approval. The amendment includes a new "Housing Diversity Area Policy" and this policy does include the site as a "local centre" wherein more intense residential densities are promoted.

33 Council summarised its position on the policy considerations of this application as:

* The site is within a commercial centre (referred to as a local centre in Amendment C25) which is expected to play a role in providing for housing diversity, but to a lesser extent than neighbourhood centres and urban village locations.

* Given the main road location, consideration has been given to a third storey component. However the extent of the third floor is excessive when considered in the context of surrounding height, bulk and scale and a broad context of policy objectives for other commercial centres in the municipality, including key neighbourhood centres and urban villages.

* The key concern is that the building will dominate the streetscape at the height proposed (particularly if required to be setback 3 metres from the frontage under the PAO1) and does not sufficiently step down at the rear to achieve an adequate transition to abutting residential area. As such any top floor envelope must be substantially smaller to limit its dominance and visual bulk impacts in this location.

34 What I detect from this is that Council is comfortable, in a policy sense, with a multi level commercial/residential development on the site but that it has difficulties with the extent of the development and the consequent amenity impacts. I will address the amenity impacts below, but I conclude that I find the proposal consistent with the existing and emerging policy position of Council which, as it transpires, is a policy position which neatly dovetails with Melbourne 2030 and which also assists Council in defending its position to reject denser proposals in its minimal change areas.

35 I finally note that clearly some of Council's local centres exhibit quite different characteristics given their site context. A more isolated centre located well away from a main road exhibits different characteristics than one such as this which is on a main road. I agree with Council that a slightly more liberal approach is needed in a case such as this on North Road and I note the extent to which similar sized buildings are being erected up and down the length of North Road.

36 I agree with Mr Scally that, apart from the road widening issue, the real issue in this application is the third level. Indeed, from Council's point of view it appears that it is not so much the third level, as the extent of the third level as it noted that "a maximum two storey transition at the rear of the site is required".

37 I will return to the south transition side in a moment but it is initially worth dealing with the other sides. To the east and west, the building will be built to either boundary which continues the trend of all other sites in this commercial block. The design incorporates a degree of articulation to both elevations with the use of upper level balconies and marginally rebated panel insets which give the appearance of two levels when viewed from the east and west. While it is true that the building will be twice as high as its neighbours and will therefore be exposed and visible to the east and west (at least in the short term) I don't regard this as either fatal or inappropriate. In fact I commend the attempts of the designer to introduce a degree of interest on what might otherwise have been a bland tilt slab concrete wall.

38 At the North Road frontage, the design includes glazing at ground level with balconies above. Once again this is a more interesting façade than might otherwise have been the case. The glazed ground level will be retained regardless of the road widening. In the short term, development is to be at ground level only thereby providing a "stepping" to the building. In the longer term, after the road widening, and once "detached", the ground level will adopt the same building line for levels 1 and 2 with a slightly protruding balcony at level 3. This is a perfectly normal and acceptable presentation to the street in a business zone and the use of the balconies, and the upper level protrusion will help "break up" this façade. I viewed the site from the front standing in the forecourt of the transport service centre opposite and feel that it will present well to North Road in either its original or ultimate form.

39 The most contentious amenity impact was at the rear and its presentation to the neighbours in Poet Street and Melva Street. When I viewed the site from the Pym property I was surprised how little of the site was visible from this property, mainly because of the existence of a substantial garage on their northern (laneway) boundary. It is only at the rear of the Pym land in what appears to be a fenced yard that there is any view. It is true that this part of the yard is much higher than the subject site but its use appears limited. The Stone property has a far greater exposure to the site and is also higher than the subject site. I noted that the Stones have a very high fence to the laneway as well as some plantings along this fence which are yet to reach maturity.

40 The first thing that needs to be said is that the decision guidelines of the Business 1 zone make it clear that due regard must be given to adjacent zones. Clause 34.01-4 notes that the Responsible Authority must consider (among other things):

The interface with adjoining zones, especially the relationship with residential areas.

41 I recently had cause to comment on a similar residential/commercial interface in Buckerfield Architects v Boroondara City Council and E Shelton & Ors (P2505/2003) where I commented that in residential/commercial transition areas such as this:

...there are competing objectives on either side of the residential/commercial divide and that a proper planning outcome is one which balances those competing objectives taking into account all of the opportunities and constraints of the site and its neighbours. Inevitably compromises will have to be made to reach an acceptable outcome which satisfies those competing objectives. The commercial site cannot ignore that they have a residential abuttal; nor can a residential property expect the sort of residential amenity one would anticipate in an area wholly zoned for residential purposes.

42 I added in that case that the task was not to achieve a pristine residential outcome nor a perfect commercial solution but one which balances the reasonable expectations of the parties.

43 I am satisfied that, with the modified plans, this balance has been achieved. Like Mr Bastone, I doubt I would have reached this conclusion based on the original plans but the new plans incorporate an array of measures which help buffer the effects of the building. But for the constructive input of the Stones and Pyms, and without the intervention of Mr Bastone, I feel that the design could easily have given rise to amenity impacts. But, as modified, the building has rear setbacks about double what ResCode would have required; there is landscaping onto the laneway; there is a building setback to the laneway; there is a reduction in shading so that it is restricted to the lane; there is no prospect for overlooking with privacy screens to 1.7m on all sides of the south facing balconies; there is a stepping and grading of building away from the lane at the upper levels; and there is a strong sense of articulation to the rear façade.

44 I think that the interface protection is further assisted by the already "defensive" measures employed on the neighbouring properties. The Pym garage is a significant buffer while the high fence and emerging vegetation on the Stone property mean that all affected parties have contributed to ameliorating the impacts of the inevitable redevelopment of this commercial site.

45 I therefore conclude, unlike Council, that the "offending" third level does not give rise to the amenity impacts which it or the neighbours anticipate and that the third storey is not excessive when considered in terms of height, bulk and amenity.

46 As noted earlier, Council had initially refused this application on the inadequacy of on-site car parking. The modified plans remedy this and it was not in dispute that sufficient parking under the planning scheme was now provided. Another improvement of the modified plans was the provision of a passing bay in the laneway at the entrance to the rear car park. The length of this bay was in question but I am satisfied that the proposed length (6.4m) enables a vehicle to stand while another passes it in the lane. To lengthen the bay would mean that the proposed rear landscaping is compromised.

47 The residents quite properly urged me to look to the practical reality as opposed to the planning scheme requirements as, in their view, there are existing and emerging traffic and parking problems in the area. I have looked at this issue closely and I am satisfied that there is sufficient parking provided and that whatever traffic issues are there now won't be adversely affected by this development. The site accommodates all its parking on site and at nights and weekends when the office is not operational extra use can be made of these vacated spaces. While from time to time a resident may have a party or an unusually large attendance at their unit, this is no different to any home owner who has the same demands. The planning system caters for the norm, not the exception, and I believe that the proposed provision comfortably meets normal standards.

48 There will be a minor increase on the road networks but this will be largely confined to the point at or near the junctions of North Road with Poet Street and Melva Street. The first of these is controlled by lights and the second has ample capacity. I agree with Mr Fairlie that the traffic impacts of the proposal can be easily absorbed.

49 I think that both Council and the neighbours were entitled to have reservations about this application but that most of these concerns have been addressed in the modified plans. This is an example of where the planning process has achieved a better outcome by the constructive input of all parties.

50 While I support and applaud Council's policy initiatives for centres such as these, I don't feel that its fears of negative amenity impacts will be realised. This is a very sensitively handled design at its residential interface.

51 I acknowledge that the front portion of the land is within a road widening overlay but I am prepared to authorise its short/medium term use because it has been designed in such a way so as not to compromise the long term widening objective.