Melbourne CC and Or v Min for Planning and Baulderstone Hornibrook P L [2003] VCAT 516 (17 April 2003)

IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

PLANNING AND ENVIRONMENT LIST Nos. P1394/2002 &

Planning and Environment List - ss.80 and 82 Planning and Environment Act 1987 - Melbourne Planning Scheme -- Mixed Use zone - Heritage Overlay - Environmental Audit- MSS - Local Policies - status of North-West Melbourne 2010 - Multi storey residential apartment complex - reuse of existing heritage buildings relocation of above ground gas regulator - height - bulk - internal amenity - overshadowing of adjacent parkland - car parking - traffic.

North-West Melbourne Residents Association Inc. and Others

PERMIT APPLICANT: Baulderstone Hornibrook Pty Ltd

APPLICANT FOR REVIEW: Baulderstone Hornibrook Pty Ltd

DATE OF HEARING: 21, 23, 23, 24 and 25 October 2002

Medium Neutral Citation [2003] VCAT 516

2. The permit applicant must advise the Tribunal in writing within 21 days of the date of this document, with copies to each of the parties who appeared or who were represented at the hearing, as to whether the applicant wishes to prepare and tender amended plans taking account of the reasons given herein and the time required for such plans to be prepared and circulated.

Responsible Authority: Mr R Appudurai, Barrister, instructed by the Victorian Government Solicitors Office.

Permit applicant: Ms M Quigley, SC, instructed by Deacons, lawyers.

Melbourne City Council: Mr J Gobbo QC & Ms J Davis barrister, by direct brief.

North-West Melbourne Ms A Williams, Ms K Oddie, Ms N Hawkins and Mr S Farrell

Association Inc and others: appeared for the Association and for the following other persons:

(NWMA) T A'Hearn, C Douglas, P and V Carlton, B Champion,

R and G Di Domenico, R Eden, S Farrell and A Ralph, L Firth,

J Friedl, E Hannan, M Hannan, W and L Hannan, N Hawkins,

P Wiggins on behalf of BCSP 12295, P Houghton, J Yim,

J Cheng Chung Kao, S Karovich, M Kehoe, P Lambrick,

A McPherson, H Chung Martin, B Moore, A Raftopoulos, C-L Seeger, J Snowden, T Tiganis, J Todorov and A Williams.

Vic Gas Distribution Pty Ltd: Mr C Townshend, barrister, instructed by Foster Hart Lawyers

1. The hearing concerned two applications seeking the review of a decision to grant a permit made by the Minister for Planning [the Minister] acting as Responsible Authority in relation to permit application no. 2001/686.

2. Application no P1394/2002 is one brought by objectors, the Melbourne City Council and the North-West Melbourne Association Inc, under s 82 of the Planning and Environment Act 1987 against the Minister's decision to grant a permit to use and develop land at 36-96 Macaulay Road North Melbourne for "....multiple residential dwellings, office and retail uses and associated car parking, vehicle access, landscaping and on-site facilities and to alter vehicle access arrangements to/from Macaulay Road and make alterations to the wall that are included in the heritage overlay."

3. The grounds of review given by the Melbourne City Council are:

The bulk of the proposed development is too big resulting in excessive bulk and an overdevelopment of the site.

The height of the development is inappropriate in terms of the neighbourhood character and the shadow impact of the development on Gardner Reserve.

The proposal does not provide for adequate internal amenity in terms of access to daylight for dwellings, visual privacy and amenity of open space.

The proposal does not provide for adequate car parking for the proposed commercial uses and parking for visitors to the site.

The proposal does not adequately incorporate environmental sustainable design principles in the design.

6. Lack of resolution of the gas regulator issue.

The development is reliant on the relocation of the gas regulator currently located on the site and an appropriate location for the gas regulator has not been finalised.

4. The grounds of review given by the North-West Melbourne Association Inc and other joint applicants are:

1. Overdevelopment of the site - excessive height, scale and massing.

4. Not in accordance with the local area plan NorthWest 2010.

6. Not in accordance with Planning Scheme Clause 22.05 - Heritage Places Outside the Capital City zone.

7. Inadequate incorporation of environmentally sustainable design.

9. Unresolved issue of relocation of gas regulator.

5. Application no. P1714/2002 is one brought by the permit applicant, Baulderstone Hornibrook Projects Pty Ltd, under s 80 of the Planning and Environment Act 1987 against conditions 3, 5, 7, 33 and 34 on the Notice of Decision to Grant a Permit. The respective conditions and the grounds upon which the applicant relies are set out below:

Prior to the commencement of any buildings and works on the land either; a certificate of Environmental Audit must be issued for the land in accordance with Section 57 AA of the Environment Protection Act, 1970, or: and Environmental Auditor appointed under the Environment Protection Act, 1970, must make a statement in accordance with Section 57AA(5)(b) of that Act that the environmental conditions of the land are suitable for the approved sensitive uses.

Condition 3 of the Notice of Decision to Grant a Permit (the "NOD") requires that an environmental audit be carried out prior to the commencement of any demolition on the land. The condition is unreasonable and impractical and should be amended to require that the environmental audit be carried out prior to the commencement of a sensitive use on the land.

Prior to the commencement of any works on the land known as Shields Lane, Corporation Lane 253, including demolition and construction works, which forms part of the subject site must be discontinued and sold to the satisfaction of the City of Melbourne.

Condition 5 of the NOD is inconsistent with the "Note A" at the end of the NOD. "Note A" must be amended to require that discontinuance of the lane occur prior to works being carried out in Shields Lane, not the entire site.

Prior to the commencement of the development, a First Rate Energy rating assessment prepared by a person accredited by the Sustainable Energy Authority must be submitted for each of the units demonstrating that each of the units is to achieve a minimum of a 4 Star Rating.

Condition 7 of the NOD requires a minimum 4 star energy rating to be achieved for each unit. While this is achieved for each of the new residential units proposed, it cannot be achieved for the existing heritage buildings to be retained and it is unreasonable to require that this be the case.

After 6 months buy no later than 12 months after the completion of the development and during a busy traffic period, a full traffic impact analysis shall be carried out by the developer for Macaulay Road at no cost and to the satisfaction of the VicRoads. The analysis should include the before and after traffic volumes on Macaulay Road, the traffic generation to and from the site, the degree of saturation and the maximum queue length at the pedestrian operated signals outside the development. (Note: The development is considered complete when certificate of occupancy is issued for all apartments.)

Condition 33 (required by VicRoads) is too vague and uncertain and places unreasonable and onerous obligations on the permit holder and should be deleted.

Prior to the issuing of a certificate of occupancy for the apartments, a bond or bank guarantee to the value of $100,000 in the name of VicRoads shall be taken out for a period of 18 moths from the completion date of the development.

Condition 34 (required by VicRoads) is unreasonable and not sufficiently connected to the development proposed and should be deleted.

6. At the hearing the representatives of each of the respective parties tabled and spoke to written submissions to which they added further oral argument.

7. The following persons were also called to give expert evidence:

* Mr Townshend called Mr K Anderson, a consulting risk assessment engineer and director with Risk and Reliability Associates Pty Ltd.

* Mr Gobbo and Ms Davis called Ms R Hansen, a town planning consultant with Hansen Partnership and Mr A O'Brien, a traffic engineer with Andrew O'Brien and Associates Pty Ltd.

* Ms Quigley called Ms C Heggen, a town planning consultant with Fulcrum Town Planners Pty Ltd; Mr C Butler, a traffic engineer with Grogan Richards Pty Ltd; Ms R Riddett, a conservation architect with Allom Lovell and Associates Pty Ltd; Mr J Patrick, a landscape architect with John Patrick Pty Ltd and Mr F Chaney, an architect with Cox Sanderson Ness architects.

8. The evidence in chief presented by these witnesses is set out in written reports. All witnesses were available for cross examination.

9. In addition to the above we were presented with a variety of other material tendered as exhibits including photographs of the subject land and surrounds, various maps, diagrams and extracts from various documents relevant to the consideration of the proposal. In addition we were assisted to some extent by a presentation of a computer model prepared by the project architects showing a "fly-by" around and within the proposed development. Ms Williams also spoke to a model of the proposed development that she had prepared. We have taken into account the submissions made by the parties with respect to the purpose and limitations associated with these visual aids.

10. All of the submissions, evidence and other material presented during the course of the hearing have been considered. References to the NWMA also includes the other parties incorporated

11. We have carried out an inspection of the subject land and surrounding area.

12. On the first day of the hearing, Ms Quigley applied to amend the permit application by substituting amended plans. The plans are identified as TP1-2d, TP3-4d, TP5 - 6d,

TP7 - 8d, TP9 - 10d, TP11d, TP12d and TP 13d, and the landscape plan by Mr Patrick numbered 01: 159C TP1 Revision C. The plans had been circulated to the other parties before the hearing. There was no objection to the amendment from the other parties. The application was amended as requested pursuant to clause 64 in schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

13. The subject land comprises a number of lots which create an irregular "L" shaped site prominently located on the corner of Macaulay Road and Haines Street, North Melbourne. The land has an overall area of about 9827 square metres with frontages of about 165 metres and 120 metres to Macaulay Road and Haines Street respectively. The northern end of the land has a curved alignment which links Haines Street to the south side of Shiel Street. The land also has a somewhat irregular slope given that it is partly cut into the natural terrain, but none the less there is a fall of about 7 metres from Shiel Street down to Macaulay Road.

14. Ms Heggen set out the details of the main buildings on the land in her report as follows:

* The Gas Regulating House at 60-96 Macaulay Road which is owned by Vic Gas Distribution Pty Ltd and contains natural gas regulator that are part of the metropolitan supply network. Origin Energy is the asset manager of this facility. The building dates from the Victorian era and is in the `Free Classical' style. The building as a hard edge to Macaulay Road where it has a parapet height of 7.5 metres (to RL 10.3). Attached to the eastern side of the Gas Regulating House and extending along part of the Macaulay Road frontage is a 3.6 metre high brick fence (to RL 6.4). The gas Regulating House and fence are included on the Victorian Building Register (H1731).

* The former Omnibus Company's stables at 36-58 Macaulay Road comprising a two storey brick building constructed in 1873. The building has a parapet height of 8.3 metres (to RL 11.8). Abutting the rear and side of the stables building are a number of large sheds which are in part contained behind a single storey brick perimeter wall that sits on the property line of Macaulay Road and Haines Street. Until recently, the building was the premises of "Stokoe Motors". The Stables and part of the perimeter wall are included in the Victorian Heritage Register (H1810).

* A single storey brick workshop ("Automotive Fleet" premises) at 118 Haines Street. It abuts a larger single storey brick workshop ('S S Motors' premises) at 116 Haines Street, beyond which is a right of way and a single storey factory building at 110 Haines Street, beyond which is a right of way and a single storey brick factory building at 110 Haines Street. Further north and separated by a 3.05 metre wide corporation lane is a single storey workshop ('Tito Coach and Car Detailers' premises) at the corner of Haines Street and Shiel Street. This property is known as 1 Shiel Street.

15. Ms Heggen went on to describe the surrounding area which we adopt as follows:

The surrounding area is characterised by a variety of land use activities. To the west of the site is "Woods" Accident Repair Centre at No 5 Shiel Street and the State Archive Centre which extends between Macaulay Road and Shiel Street. The Centre contains a car parking area located adjacent to the west boundary of the subject site. Land to the south of the Centre's car park is currently vacant. To the east, on the opposite side of Haines Street is a triangular public park bounded by Macaulay Road, Haines Street and Dryburgh Street and known as Gardiner Reserve. The park encroaches into the land defined as part of the Haines Street and Dryburgh Street road reserves. To the south, on the opposite side of Macaulay Road is the North Melbourne Recreation Reserve and adjacent public swimming pool.

A range of commercial and light industrial premises extend west from the Recreation Reserve along the south side of Macaulay Road. Land to the north of the subject site, in Shiel Street, is residential in nature and comprises a variety of dwelling types including one and two storey Victorian terrace houses, a three storey contemporary dwelling at 40 Shiel Street, a four storey 'six pack' 1960's flat development at 42-44 Shiel Street and three double storey 1970's townhouses located on the corner of Shiel and canning Streets. At the east end of Shiel Street is a single storey Californian bungalow, located immediately on the corner of Shiel and Dryburgh Streets.

Shiel Street is characterised by avenue planting of mature Elm trees on the south side and mature Plane trees on the north. Street tree planting in Macaulay Road is intermittent and comprises Melaleucas. There is no street tree planting on the west side of Haines Street abutting the subject site, although the Gardiner Reserve contains a number of mature Plane trees that define the edge of the park.

16. The proposal essentially involves three main elements, namely, the decommissioning and removal of the gas regulator, the retention and adaptive re-use of the heritage registered buildings, the Gas Regulating House and former Omnibus Stables, for commercial purposes and the development of a combination of three, four and five storey apartment buildings over a large semi-basement car park over the balance of the land. A total of 203 one, two and three bedroom apartments and 228 car parking spaces are to be provided.

17. Ms Heggen described the proposal in more detail as follows:

In essence the proposal envisages the construction of seven buildings comprising 3, 4 and 5 storeys over a basement car park for 228 vehicles with an entry/exit crossover from Macaulay Road. A second vehicle entry is proposed off Shiel Street, however, this crossover provides access to only 9 vehicle spaces under Building 1 as well as 2 visitor spaces at grade.

The seven [new] buildings are sited so that Building 1 is located on the corner of Shiel and Haines Street, Building 2 and 3 directly address Haines Street, Building 4 is located immediately on the corner of Haines Street and Macaulay Road and Buildings 6 and 7 directly front Macaulay Road. Building 5 is located behind building 3 on Haines Street and the restored and recycled Omnibus Stables. The Gas Regulating House is located between Building 7 and the vehicle entry off Macaulay Road into the Victorian Archive Centre. In the north-west corner of the subject land a tennis court for use by residents is to be constructed.

In addition to providing access to the basement for 9 vehicles, the Shiel Street access also continues as a drop off/pick up road for residents and visitor use to access Building 5 and the tennis court.

The proposed building heights utilise the topography of the site so that Building 1 on the corner of Shiel Street, which is the highest point of the subject land, is 3 and 4 storeys at approximately 10 metres and 12 metres in height. Buildings 2 and 3 addressing Haines Street are 4 storeys and vary between approximately 13 metres and 14 metres in height and Building 4 on the corner of Haines Street and Macaulay Road steps up to 5 storeys or 17.55 metres. Building 6 and 7 on Macaulay Road are 4 storeys and vary between 14.2 metres and 14.8 metres in height. Building 5 is also 4 storeys (above the car park level) and has a height of 15.2 metres.

Each building is designed around a central lift core with 4 apartments at each level taking direct access from the central lift lobby. The effect of this arrangement is to create a 'cruciform' building layout.

Building 5 is a free standing structure whilst Buildings 1 and 2, Buildings 3 and 4 and Buildings 7 and 8 are attached so that they create three discrete modules around the perimeter of the site rather than six individual buildings.

The gas Regulating House and the Omnibus Stables are contained in their own 'free standing' curtilage. The heritage brick boundary walls that run along the Macaulay Road and Haines Street frontages will be incorporated into the residential development behind.

The landscape proposal shows the 'internal' pedestrian and soft landscape treatment in between the buildings and includes installation of five semi-mature Elm trees along the Haines Street site frontage.

Pedestrian access through from Shiel Street to Macaulay Road is achieved via landscaped walkways and plaza areas in between the proposed buildings.

Planning Scheme Provisions and proposed amendments

18. Under clause 61.01 of the Melbourne Planning Scheme, the Minister is the Responsible Authority in this matter given that the gross floor area of the proposed development exceeds 25,000 square metres.

19. The site is located in the Mixed Use zone, the provisions for which are found in clause 32.04 of the planning scheme ordinance. The purpose of the zone is:

* To implement the State Planning Policy Framework and Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To provide for a range of residential, commercial, industrial and other uses which complement the mixed use function of the locality.

20. "Dwelling" is a Section 1 or "as of right" use within the zone, however, a permit is required pursuant to clause 32.04-5 for the construction of more than one dwelling on a lot. Permission is also required for the "office" and "retail" components of the proposal as these uses fall within section 2 of the land use table at clause 32.04-1 and for the construction of associated buildings under clause 32.04-7.

21. The subject land is also affected by a number of overlay controls.

22. At the time of the hearing, Heritage Overlay No. 870 (36 Macaulay Road and 120-130 Haines Street, North Melbourne) applied to the return wall on the corner of Macaulay Road and Haines Street. No other part of the land was covered by the overlay. However, it seems that following an amendment to the planning scheme [C67] the return wall is no longer covered by the overlay. Instead, HO870 now applies to the Omnibus Stables and the Gas Regulator Building is cited under the overlay as HO891. The inclusion of these buildings within the heritage overlay was foreshadowed by the parties at the hearing although the amendment had not been approved at that stage.

23. Under clause 43.01-1 a permit is required to demolish a building and to construct or carry out works. However, the provisions of clause 43.01-3 state that no permit is required under the overlay to develop a heritage place identified in the schedule as a place included on the Victorian Heritage Register if a permit has been granted under the Heritage Act 1995.

24. The Gas Regulator Building and the Omnibus Stables are included within the Heritage Register and are identified as such in the schedule to the overlay. Furthermore, permits have been issued under the Heritage Act 1995 for the works to these buildings. As such, a permit is not required under the overlay as permission has already been given via the permits issued by Heritage Victoria.

25. The Special Building Overlay, the provisions for which are at clause 44.05, applies to that part of the land located on the corner of Macaulay Road and Haines Street and along part of the Macaulay Road frontage. Under the overlay, a permit is required for the construction of buildings and works and an application is required to be referred to Melbourne Water.

26. The Environmental Audit Overlay, the provisions for which are at clause 45.03, applies to the whole of the land. The overlay sets out the requirements that must be met before a sensitive use such as "residential "commences or before the construction or carrying out of buildings and works in association with a sensitive use commences. The requirements are essentially those set out in condition 3 on the NOD.

27. Macaulay Road is located within a Road zone category 1. Under clause 52.29, a permit is required to construct or alter access to a road in a Road zone - Category 1. An application seeking permission under clause 52.29 must be referred to the Roads Corporation (VicRoads).

28. Car parking requirements for the use of land are set out at clause 52.06.

29. The decision guidelines at clause 65 require that consideration be given to the provisions of the State Planning Policy Framework (SPPF), the Local Planning Policy Framework (LPPF) including the Municipal Strategic Statement (MSS) at clause 21 and local policies at clause 22, the orderly planning of the area and amenity. Given that the height of the proposed buildings exceeds three storeys, the proposal is not required to be considered against the provisions of clause 55.

30. The SPPF sets out general policies for planning in Victoria with those relating to Settlement (clause 14), Heritage (clause 15.11), Housing (clause 16), Car parking (clause 18.02) and Design and Built Form (clause 19.03) being particularly relevant to the consideration of this proposal. The general thrust of the policies for Settlement and Housing is to encourage the consolidation of existing urban areas, to make better and more efficient use of infrastructure and to provide for a wider variety of housing, including well designed medium density housing which respects neighbourhood character.

31. In relation to conservation and design issues, the policy for Heritage at clause 15.11 states, in part:

Planning and responsible authorities should identify, conserve and protect places of natural or cultural value from inappropriate development.

32. The policy for car parking requires that consideration be given to all modes of transport, including walking, cycling, public transport, taxis and private vehicles in providing access to new developments. In considering car parking, the policy states that Responsible Authority's should, amongst other things, have regard to existing and potential modes of access, car parking demand and road capacity and the efficient provision of car parking through the consolidation of car parking facilities.

33. The policy for Design and Built Form at clause 19.03 encourages development that achieves architectural and urban design outcomes that make a positive contribution to neighbourhood character and enhance the public realm whilst minimising detrimental impacts. The policy sets out various design principles for consideration relating to site context, the public realm, landmarks, views and vistas, pedestrian spaces, heritage, consolidation of sites, light and shade, energy efficiency architectural quality and landscaping.

34. We also refer to the SPPF policy at clause 18-11 of the scheme relating to "High Pressure Pipelines" the objective of which is:

To plan for the development of pipeline infrastructure subject to the Pipelines Act 1967 to ensure that gas, oil and other substances are safely delivered to users at minimal risk to people and the environment.

35. Under "General Implementation" at clause 18.11-2, the policy makes it clear that existing transmission lines should be recognised and protected from further encroachment by residential development whilst the siting of new pipelines should be planned along routes with appropriate buffers to, amongst other things, residential uses.

36. In relation to the LPPF, Part 1 of the Municipal Strategic Statement (MSS) at clause 21 (known as City Plan) sets out an integrated strategy for the city which is set out under six key themes. "Main aims" under City Plan of direct relevance to the consideration of this proposal include:

4.1 To increase the City's population to at least 48,000 by 2001.

4.2 To achieve a wide range of housing options that will cater for all sections of the population.

5.1 To enhance the physical quality and character of Melbourne's streets and city form through sensitive and innovative design and, in particular, improve the experience of the City for pedestrians.

5.2 To conserve and enhance Melbourne's architectural heritage and historic character, and enliven it by adaptive re-use and innovative promotion.

37. The discussion in City Plan under aim 4.1 states, in part:

Housing is encouraged across the municipality and there is potential to add significantly to dwelling stock. Some areas can absorb higher density housing without threat to their character, and some are suited to high-rise development. In areas such as conservation areas, additional housing must be restricted to sensitive infill.........

Industrial or commercial areas such as North and West Melbourne are beginning to attract residential developers due to the current economic climate and changing industry structure. Residential development in these areas is encouraged by Council.

38. Under outcome 4.1.2, City Plan notes that Council will, amongst other things:

* Encourage private sector medium and high density residential development in mixed use, inner city areas to satisfy significant metropolitan urban consolidation principles.

* Encourage private sector, high and medium density development in Docklands.

* In other areas, encourage private sector infill housing that complements the architecture, scale and character of the neighbourhood.

39. Part 2 of City Plan sets out specific objectives for different parts of the municipality including the "North and West Melbourne (Mixed Use area)" within which the subject land lies. The objective for this area is:

To encourage the creation of a sustainable and self-sustaining living and working urban village built upon existing infrastructure; public transport access to the CBD; and an improved amenity of the area resulting from the re-direction of through traffic to City -Link.

40. In relation to development, City Plan states, in part:

The Mixed Use zone area provides an opportunity for incremental urban renewal. The area already contains residential communities within which sustainable growth can occur. Development is encouraged to complement the historical, environmental and social fabric of the area in order to build upon its unique identity within inner Melbourne.

41. A number of local policies are also applicable to the consideration of this proposal. These are:

* Clause 22.05 "Heritage Places outside the Capital City zone" policy.

* Clause 22.13 "Development and land Use in Mixed Use zone" policy.

* Clause 22.17 "Urban Design Outside the Capital City zone" policy.

43. The permit application was lodged with the Minister on the 21 November 2001. The permit application sought permission for the use and development of land at 36-96 Macaulay Road North Melbourne for ".... the purpose of 7 residential apartment buildings and commercial uses and associated car parking, access and landscaping and on site facilities; to alter vehicle access arrangements to/from Macaulay Road and to construct the buildings and to construct and carry out works in association with the development shown on the plans submitted with the application."

44. On the 3 December 2001, the Minister required notice of the permit application to be given. The Minister received objections against the proposal. The applicant submitted revised plans in response to matters set out in the objections and comments received from the Council and officers from DOI. Mr Appadurai said that the Minister received 35 objections to the application and summarised the grounds listed in them as follows:

* Inappropriate scale and bulk of the proposed development;

* Inadequate provision of parking, particularly visitor parking;

* Inappropriate design and lack of regard to neighbourhood character;

* Overshadowing of the Gardiner Reserve in winter, and

* Issues concerning the relocation of the gas regulator.

45. Mr Appadurai also said that the permit application was referred to Melbourne Water and VicRoads. In relation to these referrals Mr Appadurai explained that:

Melbourne Water required, inter alia, the re-design of basement entry ramps and other entrances at specified levels above the applicable flood level for the site and required certain specified conditions be imposed on in any permit...VicRoads also sought the imposition of specified conditions, including a requirement that right turn arrangements from Macaulay Road into the site be altered in the event that a traffic impact analysis (required to be carried out within 12 months of the completion of the development) indicated a need for such works.....This condition was included partly because of the Council's intention to alter Macaulay Road to one lane only in each direction as a result of City Link, a change which will reduce the capacity for through traffic flow on Macaulay Road.

46. After consultation between the DOI officers, the Council, the applicant and Heritage Victoria, the Minister made the decision to grant a permit subject to the conditions set out in the Notice of Decision.

47. Over the seven hearing days of this case we were presented with a substantial amount of submissions and expert evidence on a range of matters associated with this particular proposal. The breadth of issues raised range from broader policy related matters down to quite specific design issues such as the nature of the fencing around some of the courtyards for ground level apartments. In light of this we do not propose to discuss in these reasons the detail of every single matter that was raised during the course of the hearing. Rather we will focus on the key issues, which in our view centred around a number of key issues, namely, whether the proposed development, in terms of the height, scale, bulk and setback of buildings, represents an appropriate design response for this site having regard to heritage, neighbourhood character, urban design and external amenity considerations; whether the proposed apartments will provide their future residents with an acceptable level of amenity and whether satisfactory on-site car parking is provided.

48. In particular we have sought to "group" our discussion of built form issues given that there will be some overlap in the way that some matters are considered. For example, the height of the proposed buildings is a matter where there is some degree of overlap in the consideration of urban design, neighbourhood character, heritage and amenity issues. We think this approach enables us to better express our reasoning.

49. Whilst we have identified the above matters at the outset, this is not to say that they were the only significant and important matters that were raised during the course of the hearing. Accordingly before turning to the key matters listed above, we think it appropriate that we set our views with respect to those other matters as they are relevant to the applications upon which we must decide.

50. The first of these relates to the suitability of the subject land for residential use particularly having regard to the nature of some of the constraints that it is subject to. It was common ground between all parties that the eventual redevelopment and use of the land for residential purposes is supported by the zoning that now applies and that such use would accord with the general thrust of policies within the SPPF and LPPF which encourage the consolidation of existing urban areas and the provision of more housing in locations which have good access to a full range of services and facilities. It also seems to us that such redevelopment is consistent with the policy at clause 22.13 which encourages new residential development in the North and West Melbourne area that provides a wide range of housing forms in locations well serviced by facilities and service. There was also no real dispute between the parties that the redevelopment of the site for residential use would accord with the policies set out in Melbourne 2030 with respect to a more compact city. None the less it is also relevant to say that these policies do not say that such development should occur at all costs.

51. Rather policy also emphasis that new development should respect neighbourhood character and heritage assets, results in a positive urban design outcome and provides good internal amenity for residents whilst not unreasonably compromising the amenity of surrounding residents and the area generally. Direction 5 in Melbourne 2030 makes it clear that design issues are also important in delivering appropriate outcomes in terms of urban design, neighbourhood character and heritage.

52. Whilst the zoning of the land, the existing policies relating to settlement and housing and the thrust of the Melbourne 2030 strategy support the redevelopment and use of this site for residential purposes, none the less it is a site which is subject to constraints which appear to have thwarted its potential to be redeveloped for some time. It was clear to us that the most significant of these is the continued use of the land for the purpose of gas distribution. The redevelopment of this site for residential purposes has been the subject of interest from developers and planning scheme amendments dating back to the mid 1980's. However, it would appear that difficulties and costs associated with the relocation of the regulator has been an insurmountable obstacle that has prevented redevelopment from occurring.

53. The subject land has been used historically for industrial use with much of this being associated with the distribution of gas. No doubt many will remember the large gasometer which existed on the land, a landmark well known to many Melbournians not only because it was located on busy Macaulay Road, but also because of its exposure during many years of television replays of football games played at the Arden Street reserve. The gasometer was removed some time ago, however, the gas regulator building remains and it continues its regulating function modifying the pressure from high pressure pipelines to enable distribution to end users.

54. Although the high pressure pipelines to the subject land are underground, the regulator which modifies gas pressure is above ground. Mr Anderson said that the existing regulator station is not a major hazard facility under the Occupational Health and Safety (Major Facilities) Regulations 2000. None the less it was common ground amongst the parties that the regulator should be removed to facilitate the use and development of the land for residential purposes. In this regard Mr Anderson said that the aim should be to reduce risk and this would be best achieved by relocating the regulator to an underground location, probably within road reserves. The relocation of the regulator would not eliminate all risk, however, it would reduce the risk particularly in terms of the potential for explosions within the Gas Regulator Building and "horizontal jet flame".

55. Mr Townshend said that Vic Gas Distribution, which is the owner of the property upon which the gas regulator exists, supports the proposal. Mr Townshend said that whilst the subject land presents a good opportunity for residential use, it is necessary to first relocate the gas regulator. He argued that the proposal should be supported on the basis that funds that would be generated by the proposed sale of the land would fund the relocation of the gas regulator thus removing a major development constraint and it would provide a safer environment for the community given the reduction in risk. He submitted that this would provide a substantial community benefit.

56. Mr Gobbo and the objectors agreed that, as a matter of principle, the removal of the gas regulator is a positive aspect of the proposal. However, they argued that a permit should not be granted until the relocation of the gas regulator is finalised. In particular, Ms Oddie submitted that the community has concerns about the new sites identified for the replacement regulator.

57. Whilst the existence of the regulator is quite clearly a major constraint on the development of this site, we are none the less not satisfied that a permit should be denied until the regulator is relocated. This is particularly so given that there was no dispute that the cost associated with the relocation of the regulator is high. We would think that the grant of a permit provides a good degree of certainty for the prospective purchaser of the land. The absence of such certainty would create a significant degree of doubt that would threaten the potential of what is, as a matter of principle, a worthwhile outcome of this project.

58. Condition 4 on the Notice of Decision makes it clear that before a Certificate of Occupancy is issued, the gas regulator must be relocated to the satisfaction of the Responsible Authority. Mr Appadurai added that the relocation of the regulator, would in any event, be the subject of a separate approvals process and that the development cannot proceed until they are relocated. Mr Townshend submitted that his client would be opposed to residential redevelopment of any scale on the land without prior relocation of the facility.

59. We see no difficulty with the notion of a permit being granted subject to the issue of the relocation of the gas regulator being dealt with prior to the use of the land for residential purposes commencing. The practicality of the situation is that, at the very least, agreements, approvals and other necessary arrangements to relocate the regulator will need to be in place before development commences and we think that condition 4 should be better expressed to reflect this practicality. We are of the view that it should read as follows:

Before the development starts, arrangements must be in place for the removal of the operational gas regulator located in the Gas Regulating Building, to the satisfaction of the Responsible Authority. The operational gas regulator must be removed before any Certificates of Occupancy are issued, to the satisfaction of the Responsible Authority.

60. The condition requires that the Responsible Authority be satisfied that the necessary arrangements for the removal of the gas regulator from the land be in place before redevelopment commences. As to whether any work can commence before the facility is removed, we think that this is a matter that can be considered as part of the condition and any other approvals that may need to be granted. The new location for the regulator is also a matter that we consider to be beyond the scope of what we are required to consider. Subject to this change, we are of the view that the constraint associated with the existing gas regulator has been overcome in a satisfactory way.

61. A second constraint involves the environmental condition of the land. There is a likelihood that it has some level of contamination given its previous industrial use. Its inclusion within the Environmental Audit Overlay reflects this and furthermore, it cannot be used for residential use until the environmental conditions are satisfactory.

62. We note, however, that condition 3 requires that before the development is commenced, either a Certificate of Environmental Audit or a statement form an Environmental Auditor must be issued to the effect that the condition of the land is suitable for residential use. This requirement is also set out in clause 45.03-1. We note that although the applicant has sought to have condition 3 reviewed, the practicality is that the planning scheme itself sets out the requirement to be met with respect to contaminated land and as such, the condition is redundant. The implementation of the requirements of this clause effectively overcome any constraint associated with environmental condition of the land.

63. A third constraint relates to the heritage significance of Gas Regulator and Omnibus Stables buildings. It was common ground that these buildings should be retained and as such, any new development on the land will need to work around this. Both these buildings are included within the Victorian Heritage Register and now within the heritage Overlay under the planning scheme. It is clear that a positive aspect of the proposal is that both these buildings are to be retained and will be put to some form of productive use. Importantly, whilst it is clear that the need to retain these building does place some constraint on the development potential of the subject land, none the less it is a constraint that can be overcome with appropriate design.

64. Given the above, we are of the view that the main development constraints can be overcome. There are also other factors to take into account, such as the land's irregular shape, fall and the potential for flooding. However these are not factors that would in themselves prevent the land from being developed and used for residential purposes. Rather they are factors that need to be carefully considered in the preparation of a satisfactory design response.

65. Taken overall, we are satisfied that the "constraints" associated with this site can be overcome. It should also not be forgotten that the land also has a number of attributes which favour its redevelopment for residential purposes. It is a large site with substantial frontages. All physical infrastructure services are available and there was no indication that they do not have capacity to accommodate the additional demand associated with a proposal such as this. The land is also located in reasonably close proximity to a range of recreational, shopping and educational facilities as well as public transport and employment opportunities in central Melbourne. Furthermore, the land does not have a direct abuttal with other residential properties. Subject to the constraints being overcome, and we find that they can be, this site offers a wonderful opportunity for residential redevelopment.

66. Following on from the above, we now turn to the four key issues that we identified at the outset.

67. The first of these is whether the proposed development represents an appropriate design response for the land having regard to heritage, neighbourhood character and urban design considerations. In this regard, the main elements of the proposal which came under scrutiny were the height, scale, bulk and setback of the buildings as well as their impact on the amenity of the areas immediately around the subject land.

68. It was put to us by Mr Gobbo that the height, scale and bulk of the proposed development are excessive for the land having regard to the heritage considerations. In particular he submitted that the relationship between the proposed buildings and the existing heritage buildings on the land is unsatisfactory. In this regard he relied on the evidence of Ms Hansen who suggested that Buildings 6 and 7 need to be setback further away from the heritage buildings and stepped back at the upper levels to provide a more appropriate separation. The submissions presented on behalf of the NWMA also supported the view that the proposed development would simply overwhelm the heritage listed buildings on the land.

69. In addition, it was submitted to us that the proposed buildings do not respond to the key character elements of the existing residential area and of the overall 5 ½ storey height of Building 4 on the corner of the Macaulay Road/Haines Street intersection is inappropriate given that it is higher than the predominant heights in the surrounding residential areas. Mr Gobbo said that the Council is also unhappy about the spacing between buildings, the continuity of the built form along both the Macaulay Road and Haines Street frontages and the lack of front setbacks which do not allow for a soft green edge in the form of landscaping to be established along the front boundaries. Ms Hansen's evidence was that whilst she had no real difficulty with the height of the proposed buildings on neighbourhood character grounds, none the less, she was of the view that more separation is required along the Haines Street frontage, either in the form of an additional break, between buildings 3 and 4 like that which is provided in between buildings 2 and 3, or at least part of the upper levels taken away to create the impression of a break or visual "permeability" through the development. Ms Hansen also called for the provision of a 3 metre front setback and better building articulation.

70. It would be fair to say that the submissions presented on behalf of NWMA and others supported the views put forward by Mr Gobbo on behalf of the Council. However, Ms Hawkins also argued that the density of the proposed development is far greater than that of other medium density housing in the area, the buildings do not follow the slope of the land and there is inadequate provision for landscaping throughout the site.

71. We have reviewed the detailed submissions and supporting evidence put to us by the parties on these issues. Essentially we do not find that the proposal is unsatisfactory having regard to heritage, neighbourhood character or urban design reasons.

72. In relation to heritage, we note that although at the time of the hearing the Gas Regulator Building and the Omnibus Stables were not covered by the heritage overlay, both buildings were listed on the Victorian Heritage Register. Both buildings are now covered by the heritage overlay. Heritage Victoria has issued permits for the adaptive re-use of these buildings. In addition we note that the plans endorsed under the heritage permits also show the proposed development on the balance of the land. It seems fairly clear to us that Heritage Victoria has been aware of the proposal before us, it has endorsed plans showing the full proposal and furthermore, it has not sought to make a submission opposing the proposal. Whilst Mr Gobbo queried the level of detail in the reports prepared by Heritage Victoria's officers, none the less the simple fact of the matter is that heritage permits have been issued. In any event, even if called on to make the decision with respect to heritage matters, we would not accept Ms Hansen's view that additional more separation is required between the heritage buildings and the new development. Essentially we agree with the views of Ms Riddett that the proposal provides for satisfactory separation between the heritage and new buildings and that the additional separation which Ms Hansen has called for would, in our view, not present any great benefit to the way that the buildings are viewed or understood. The retention of the Gas Regulator Building and the Omnibus Stables is a major plus for this proposal. The buildings are well separated from the new development and will read as former industrial buildings set within a new residential redevelopment. The result is an acceptable one in heritage terms.

73. We also note that the wall near the corner of Macaulay Road and Haines Street is no longer covered by the heritage overlay. The wall has been given a "C" grading within a level 2 streetscape under the Council's heritage study. We note that this wall is to be retained and incorporated into the development of Building 4. We understand that this approach is not supported by the Council or the NMWA, however, we were not persuaded that what is being proposed is inappropriate. The proposal allows for the wall to be retained and whilst not retained in its current form, it will altered or adapted so that it will form a useful part of the new development.

74. We find that the heritage buildings are being preserved and incorporated into the redevelopment of the land in an acceptable way.

75. In relation to neighbourhood character, it seems to us that Ms Oddie, and to a lesser extent Ms Hansen, sought to criticise the proposal on the basis that it does not follow the height, form and setbacks of other development in the area with particular references being made to the nature of development along the residential side of Shiel Street and the 1970's style flats that exist to the north-east along Haines Street. We were asked to accept the proposition that any redevelopment of the subject land should respond to and reflect the character of the adjacent residential area.

76. Ms Heggen, however, expressed the view that the subject land together with the adjacent State Archive centre, function as a "discrete island" lying in between the predominantly residential areas to the north and east and the light industrial areas to the south and west. In supporting the proposal, Ms Heggen said that the redevelopment of former industrial sites such as this must embrace the notion of change and this is particularly so for a site such as this given that it has been identified as a site suitable for medium density housing.

77. It is clear that the planning scheme's policies in both the SPPF and LPPF together with the purpose of the zone encourage an outcome that is "respectful" of neighbourhood character. In making submissions on this issue, it is often put to the Tribunal that a proposed development is not respectful on the basis that it is not similar to what already exists. This was the type of argument being put to us by the NWMA. In particular there were several references to the height, density, setbacks and landscaping associated with the 1970's style flats that exist in the area. It was also put to us that the proposed height does not accord with the North-West 2010 local plan which suggests that buildings should generally be up to 3 storeys high in the majority of the precinct.

78. In setting out our views on the neighbourhood character issue, it is appropriate that we make three observations. The first is that the notion of "respecting" neighbourhood character does not mean "no change" or repeating/copying the type and form of development that already exists. Such an approach would be at odds with other aspects of planning policy, such as urban consolidation, which as a matter of practicality, require some degree of change to be countenanced. The notion of "respectful" development must embrace the notion that there will be change, however, such change must respond to but not necessarily replicate those elements that make the key or important contributions which define the character of a particular neighbourhood.

79. The second thing is that in considering neighbourhood character, we think that this assessment must be based on the true context of the land and not on the basis of isolated elements. For example, we would have thought that the consideration of neighbourhood character issues would legitimately take into account the subject land's adjacency to open space, industrial uses, the State Archive Centre as well as the nearby residential development. Furthermore the subject land is located within an inner urban area and it is appropriate that the design respond to this context. In this regard, we agree with Mr Chaney's view that this site needs to be read as part of a broader context.

80. Third, we have some difficulty placing any great weight on the height limits specified North-West 2010 plan. Whilst we understand that this plan has been developed by the Council in consultation with the community, the difficulty is that the plan itself has not made its way into the planning scheme as an incorporated or reference document. Ms Quigley submitted that the plan cannot be given any statutory weight given that it is not a reference document within the scheme and in light of the criticisms of the panel which considered Amendment C20. We note that references to this local plan have now been deleted in part two of City Plan and there is no mention of it at clause 22.13. Mr Gobbo did not seek to rely on it in any substantial way. It is appropriate that Councils and local communities work together to produce strategic plans, however, these plans must, at the end of the day fit in to the broader policy and strategic framework set out in the scheme. It would seem that this local plan does not achieve this and as such, it is not a document that should be given any substantive weight.

81. Whilst medium density housing exists further along Haines Street, we do not consider that it is necessary for development on this site to follow the design of the often criticised 1970's style flats. Whilst the subject land is not an island site in its truest sense, we agree with the gist of what Ms Heggen said, that is, that the subject land is somewhat isolated in that it has limited direct abuttals with other properties. Furthermore it seems clear to us that context of the land is one which is at the interface between existing industrial and residential areas, remembering that the land itself has traditionally formed part of the industrial area.

82. In our view, the proposed development has responded to neighbourhood character considerations in an appropriate way. The design response has utilised the slope of the land to keep the height of the development at the Shiel Street end to 3 storeys which is compatible with the scale of buildings in the adjacent residential area. Although the height increases down the length of the Haines Street frontage and along Macaulay Road, we do not find this to be unacceptable on neighbourhood character grounds given the context of the land at this interface location. We have no difficulty whatsoever with the overall height proposed along Macaulay Road given that this part of the site fronts a relatively busy road and is located opposite industrial uses and open space. In relation to Haines Street, the height increases from about 3 storey at the Shiel Street end and increases towards the Macaulay Road. In our view this is a reasonable response bearing in mind the slope of the land and the nature of the adjacent land uses at either end.

83. We note that none of the design experts had, as a matter of principle, difficulty with the height of the proposed development. Although Ms Hansen sought to reduce the height of some parts of the proposed buildings, her reasons for doing this were related to creating more separation with the heritage buildings and to achieve an increase in the level of visual permeability through the development. We note the criticism of the NWMA that the height of the buildings do not step down the slope. We are of the view that this criticism would have some validity if the land was located in the midst of or opposite other development which presented a built form which steps down the slope. However this is not the case here.

84. It was argued by Mr Gobbo and the NWMA that the proposed buildings should all be setback at least 3 metres from street boundaries to create a soft green edge similar to that which has been achieved with the 1970's style flats. We again question the need for the pattern established by 1970's style flats to be repeated on this site. We find ourselves in agreement with the views expressed by Ms Heggen and Mr Chaney. Essentially we have no difficulty with the approach taken whereby buildings are to be partly constructed to the street frontages creating a strong urban edge with sections well setback to create meaningful spaces that not only break up the continuity of the built form but also allow for landscaping. Despite the constraints associated with the site being occupied by a basement, we consider that Mr Patrick's landscaping proposals along the frontages are satisfactory, although we find the 300 mm lawn strips abutting Haines Street to be impractical and perhaps some form of trimmed miniature hedging or similar is called for.

85. In relation to the height of the 5 1/2 storey element on the corner of Macaulay Road and Haines Street, we do not accept that the lack of consistency the height limit set out in the North-West 2010 plan to be a sound basis upon which to reject the notion of a taller building at this prominent corner location. Whilst this part of the development will be taller than most buildings in the area, it is not significantly taller, particularly given that this part of the development is set at a lower level than the most proximate residential development given the slope of the terrain. Rather it seems appropriate to us to have a taller element at this location to better define the prominence of this corner of the site. It is acceptable not only from a neighbourhood character perspective but also in urban design terms.

86. Whilst on the issue of building height, concerns were also raised about the impact on the amenity of Gardiner Reserve which is located to the south of the subject land. Gardiner Reserve is a triangular shaped park. It contains large trees, a playground and substantial lawn areas. The point was made that the boundaries of this park have been extended into the Haines Street road reserve, however, for our purposes we are content to accept the validity of the boundaries and they currently exist.

87. It was put to us on by Ms Oddie that the proposed development would have unreasonable impacts on the amenity of the park by way of shadows. We were presented with diagrams depicting the shadows that would be cast to the south. These showed that shadows would there would be some shadows cast over the northernmost section of the park mid to late afternoon, however, the vast majority of the park would be in sunlight. We agree with Mr Appadurai's submission that the level of incursion is relatively minor and we are satisfied that that it consistent with the policy at clause 22.02.

88. We note that Ms Oddie argued that we should consider the shadows cast at the winter solstice rather than those at the equinox on the basis that winter sunshine is precious. We do not dispute that the park is a valuable asset for the local community and that sunshine is precious during winter. However, a balance needs to be struck between reasonable access to sunshine and facilitating development that works towards the achievement of other planning objectives. In this case the local policy at clause 22.02 sets the equinox as the standard to be applied and, in our view, this reflects the balance that must be struck.

89. In relation to the appearance of the development, we do not accept that it will detract from the amenity of the park. We were given two photographs, "before" and "after" shots showing the view from a point within the park towards the subject land. We found these photographs to be a limited assistance given that they were taken behind a large tree. They were helpful in showing what the view would be like with a large tree in the foreground, but in general terms, shots showing views with a more open aspect would have been more helpful. None the less we have made our own assessment based on our own observations and cannot find that that appearance, height and scale of the proposed development is unsatisfactory having regard to the amenity of the park. Rather we consider that these views will be enhanced through the replacement of industrial buildings with contemporary residential buildings.

90. We also consider that the detailed design of the buildings to be well resolved. There is some degree of repetition in the built form and design detail, however, we were not persuaded that the extent to which this occurs is a problem. Rather, there is a good deal of articulation and visual interest presented by the facades. This has been created through the stepping of the various levels, the variation in architectural elements and the use of materials and colour. We agree with Mr Patrick's view that there should be additional tree planting in Haines Street opposite Gardiner Reserve. The street trees in this area are large and make a significant contribution towards the appearance and character of the area. We think that it would be most appropriate for this theme to be continued along Haines Street as this would result in more cohesion with the existing adjacent residential area.

91. We referred earlier to Ms Hansen's criticism relating to the extent of visual permeability through the development. We understand that the initial proposal submitted to the Minister did not allow for a gap in the development form along Haines street. This has now been provided and allows for both visual and pedestrian permeability through this site. We agree that, as a matter of principle, what has been provided is generally acceptable, however for internal reasons which we will elaborate on later, we believe that the area in between Buildings 3 and 5 needs to be widened.

92. Taken overall we find that the proposed development is acceptable from a neighbourhood character and urban design viewpoint. We have no difficulty with height, scale, massing and bulk of the development. The proposal will make a positive contribution of the appearance of this area. The manner in which the heritage buildings have been incorporated into the development is acceptable and the proposal will clearly enhance the appearance of the area though the proposed redevelopment.

93. The next set of keys issues to which we give consideration relate to impacts on residential amenity.

94. On this point we note that it was not suggested on behalf of the Council or the NWMA that the proposal would result in unreasonable adverse impacts on the surrounding residential area in relation to such matters as loss of privacy, loss of daylight, overshadowing of private open spaces and noise. This is not surprising given that the subject land does not have a direct abuttal with residential properties and it is located to the south and down slope of the adjacent residential area. There were, however, concerns raised in relation to car parking and traffic which we will discuss later in these reasons.

95. A substantial number of amenity concerns raised on behalf of the Council and the NWMA related to whether the proposed dwellings would provide future residents with a good standard of amenity. We have considered the many issues raised in the submissions presented by Mr Gobbo and Ms Williams as well as Ms Hansen's evidence and set out our findings below.

96. In doing so we need to say something first about the way in which some of the concerns raised were quantified particularly with respect to references to standards set out in clause 55. The planning scheme makes it clear that the standards and requirements set out in clause 55 do not apply to this development given that it comprises buildings that are essentially four storeys and higher. Taller and higher density residential developments are different in nature to the medium density housing to which the clause 55 provisions generally apply. In this regard we note the Minister's announcement that new guidelines are to be prepared for higher density residential development that follows on from Melbourne 2030 policies. Accordingly we are of the view that whilst the standards in Clause 55 may be used as a guide, they need to be applied with some caution given that they essentially apply to low rise forms of medium density housing and not the type of development which is proposed in this application.

97. We also think that it is relevant to say that the assessment of amenity issues requires, amongst other things, consideration to be given to the context of the land, the policies that apply and the nature of the development. It is somewhat unrealistic to expect that all dwellings will provide the same type of amenity. For example, is it realistic to expect that an apartment within a high rise complex in inner Melbourne will provide the same type of amenity that will be provided by a townhouse in middle to outer suburbia? It may be that both provide a good standard of amenity, however, the factors that contribute to the amenity on offer may be quite different. We consider that this point is well set out in the following extract from the Tribunal's decision is Staged Developments Australia v Minister for Planning, Heritage Victoria and Ors [2001] VCAT 1447 (29 June 2001):

...........It would be fair to say that different locations offer different types of residential amenity. For example, the factors that may contribute to the amenity prized by residents living in an outer suburban location could include a low rise built form in a somewhat spacious setting, open space in the form of suburban size backyards or courtyards, low traffic volumes, relatively low levels of overlooking and remoteness from activity that can generate noise. It would be difficult to see how these factors could apply in the CBD, yet this does not mean that a dwelling within a CBD context does not offer good residential amenity. Rather the factors that may contribute to the amenity prized by CBD residents may include proximity to employment and entertainment facilities, access to excellent public transport, low maintenance private open space which if provided in the form of upper level balconies can also offer views and proximity to the Yarra River and surrounding public parkland. Although both locations offer "residential amenity", the factors that contribute to that amenity are markedly different.

262. It is also evident that in accepting those factors which contribute to amenity, there must also be "trade offs". For example, the "trade offs" made by an outer suburban resident may be remoteness from services, entertainment and facilities and employment, limited access to public transport and greater reliance private cars. "Trade offs" which CBD residents may make are acceptance of higher density and more intense urban development, a less "open" or spacious environment, traffic congestion and noise associated with normal CBD activity and development.

98. The relevance of site context and policy is also discussed in the Tribunal's decision in North West Melbourne Association Inc V Melbourne City Council and Banco Group [2002] VCAT 485 (29 July 2002). In Banco, a case involving a mixed use development in an inner city location, the Tribunal expressed the view that in considering amenity issues "....a level of judgement is obviously required...." and furthermore that:

"...........the exercise of judgement on these matters cannot be divorced from my earlier findings that the redevelopment of this site for a mix of retail/residential uses is specifically encouraged by the planning scheme. In this planning context there is I think considerable merit in the proposition put by Mr McGurn that some future occupants of this development will be prepared to sacrifice some elements of internal amenity in return for enjoying the benefits of living in this central location, at a relatively affordable price."

99. Whilst the subject land is not within the CBD, its context is none the less inner urban and furthermore, it is clear that policy encourages and supports the development of this site at a relatively intense level. It is also clear to us that the location of the land offers residents a range of advantages including good access to a range of services and facilities such as local and regional shopping, open space, recreation facilities, education facilities, public transport and employment opportunities in Melbourne's CBD. These advantages make a contribution to amenity on offer. Furthermore, the type of dwellings proposed will offer a low maintenance environment whilst many of the upper level apartments, particular those facing towards the south and south-west, will have the benefit of views over open space and towards the CBD and Docklands.

100. Mr Gobbo and Ms Williams attacked the proposal on a range of internal amenity issues. We have considered their submissions and those presented on behalf of the Minister and the applicant together with the evidence of Ms Hansen and Ms Heggen. We do not propose to set out all that was said, rather, we simply express our views with respect to the issues raised.

101. On reviewing the evidence it is clear that about 10 per cent of the proposed apartments will not have access to direct sunlight and about a further 15 per cent will have access to relatively limited levels of direct sunlight. The remaining apartments will have excellent to reasonable access to direct sunlight. M Heggen suggested further changes to the plans to improve daylight and sunlight access into a number of apartments together with improved access into Building 2. We think these changes are appropriate and should be shown on the plans. A number of the open spaces will be subject to considerable overshadowing, however, most will have good access to direct sunlight.

102. We acknowledge that there will be some apartments that will not have direct sunlight, and that there will be a degree of overshadowing, however, we do not consider that this should be fatal to an application that involves a large site and the development of over 200 dwellings. Whilst these south facing apartments may not have access to direct sunlight, this does not mean that they do not provide a reasonable level of amenity given that benefits derived from the location of the land and the views which may be achieved. There are amenity "trade offs" and policy initiatives to be balanced. The simple fact of the matter is that there will be south facing apartments on sites like this, particularly given that this is where the road abuttals are. On balance, we consider the proposal to be acceptable.

103. Subject to some changes to the relationship between the corner wall and the lower apartments in Building 4 (as shown on sketch plans submitted to us at the hearing) we consider that satisfactory ambient daylight will however be achieved in all cases.

104. There will be some potential for overlooking, particularly from balcony to balcony. Screens have been put in place to reduce this potential. In general we do not regard the potential for overlooking to be outside the bounds of what can be reasonably expected within an environment involving higher residential densities. However, we consider that the situation can be improved by way of increasing the separation between Buildings 3 and 5. Essentially we consider that these buildings are too close to each other and that the width of the walkway in between them should be increased to a width similar to that of the walkway between Buildings 2 and 3 extending from Haines Street. We consider that this provides a much better internal pedestrian environment and an appropriate level of separation between buildings of the height proposed.

105. A range of open spaces, mainly in the form of balconies will be provided. Whilst some balconies are less than 8 square metres, there is nothing in the scheme that requires them to be this size. We consider that the sizes provided, whilst in some cases are small, have dimensions which will allow them to be used for personal outdoor living. We are of the view that the overall mix of apartments and range of open spaces provides considerable choice. Furthermore, the land is located directly adjacent to public parkland which can be used by residents.

106. We note the concerns raised by Ms Williams about apartments which contain "internal rooms" that do not have natural light and ventilation. This issue was partly addressed in the conditions imposed by the Minister. Ms Williams identified additional rooms (in apartments 4.09, 6.07 and 7.07) that were not picked up in the conditions, however, we understand from Ms Heggen that that these apartments can also be redesigned so that all habitable rooms have direct access to daylight and ventilation.

107. We have considered the concerns raised by Ms Williams about the proximity of the vehicle access ramp to apartments 4.04 and 4.05. We consider that the design of these apartments must be augmented to amended given the proximity of the balcony to the access ramp and the amount of vehicle traffic that it will service. Essentially, these apartments should be redesigned so that the focus is way from the ramp, not towards it with attention to sound proofing and air conditioning.

108. We have no difficulty with the garbage storage room, we are satisfied that flooding issues have been resolved in light of Melbourne Water's requirements and we have no issue with the ventilation of the car park.

109. Concerns raised about the access into the proposed apartment buildings have validity. We have two fundamental concerns. The first is that we believe the pedestrian entry into Building 1 is not acceptable. Access into this building should be provided at street level. Access into the building from the street is via a rather lengthy stairway and we do not consider this appropriate when there is, in our view, opportunity to provide such access directly from street level. We also have concerns about the ability for disabled persons to enter the buildings from the street. There are many steps involved and we do not think that the access via the basement car park ramp is appropriate. It was suggested to us that some temporary mechanical systems can be put in place on request by the manager of this complex. We do not regard this as appropriate. We are of the view that a development of this size should be designed to properly consider the access needs of disabled persons. It is important that suitable access to all buildings be provided for disabled persons on a more permanent basis without the need for intervention by management.

110. We note that some storage facilities are provided, however, we agree that more needs to be provided. Ms Quigley said that this could be achieved around the lift core of each building.

111. Mr Gobbo raised concerns about possible amenity conflicts between the residential use of Building 1 and the adjacent "Woods" panel beating works. Ms Quigley explained that the permit applicant has entered into an agreement to purchase the Woods site. Building 1 is reasonably close to the panel beating works and whilst there is an obligation on the panel beating operation to meet environmental standards with respect to noise and smells, the relationship is one which could give rise to conflict. The problem may not arise if the "Woods" operation ceases before the apartments are occupied. If this is the case, then we would not be concerned. If this is not the case, and the "Woods" operation is to continue for some time after the apartments are occupied, then we consider that the design should seek to minimise the potential for conflict. This would involve modifications to the design of Building 1.

112. In relation to environmental sustainability, we note that all apartments are to achieve a minimum 4 star energy rating. We accept Mr Appadurai's submission that this is acceptable. Ms Heggen indicated that stormwater retention tanks are to be provided. The detail as to how this is to be achieved should be documented.

113. The upshot of our analysis is that the proposal is generally acceptable, however, some matters require redesign or more detail to be provided. In particular we find that:

* Greater separation needs to be provided between Buildings 3 and 5;

* The entry to Building 1 should be provided as near as practical to street level whilst the entry to Building 2 can be modified as suggested by Ms Heggen (see appendix 1 to these reasons);

* Apartments 4.04 and 4.05 need to be modified or redesigned so that the focus is away from the vehicle access ramp together with sound proofing and air conditioning;

* Some apartments redesigned (as suggested by Ms Heggen as per appendix 1) to improve access to sunlight and daylight;

* Permanent measures/facilities are needed to facilitate reasonable access for the disabled to all buildings;

* Clarification needs to be provided as to the future of the "Woods" site. If it is to continue operation after the apartments in Building 1 are occupied, then the apartments located adjacent to the Woods site need to be modified and/or include measures to minimise the potential for amenity conflicts, and

* The details of stormwater retention tanks should be documented.

114. We are of the view that these matters need to be rectified before we can find the proposal to be acceptable from an internal amenity viewpoint.

115. Next, we turn to car parking and traffic issues. Essentially there are three matters to consider. The first is whether sufficient car parking is to be provided. The second is whether the car park layout is acceptable. The third is whether the vehicle access arrangements into and out of the site are acceptable.

116. We note that under the application plans, a total of 239 spaces were to be provided on site with 213 allocated to residents, 24 for the commercial use of the heritage buildings and 2 spaces for visitors.

117. Under clause 52.06, two car parking spaces are required to be provided for each dwelling [406 spaces in total]. This clause allows for the car parking requirement to be reduced based on a range of factors. Furthermore we note that the Minister, Mr O'Brien and Mr Butler all referred to the car parking requirements in ResCode [clause 55.03-11] as a form of benchmark, albeit that they do not from a statutory viewpoint. There was general agreement that under the ResCode rates, the proposed apartments would require the provision of 254 spaces which includes a component of 41 spaces for visitors.

118. Mr O'Brien referred us to the results of surveys undertaken by his firm and the results of the well known IMRA study with respect to parking generation rates for one, two and three bedroom apartments. Mr O'Brien said that if the averages of the rates generated were used as the basis of the car parking calculation, then 250 car parking spaces would be required for the apartments plus an additional visitor requirement of 41 spaces based on the 1space per 5 apartments ratio. Mr O'Brien also added that the visitor rate might be low based on experiences at his own apartment building.

119. Mr Butler said that if one uses ABS data for average car ownership in the City of Melbourne (excluding the CAD) and if the 85th percentile rate is applied, then 221 car parking spaces would need to be provided for the residential component (revised from 203 in the report), plus an additional 25 spaces for visitors based on survey results which showed a peak visitor demand of 0.12 spaces per apartment [Survey of 496 apartments at Beacon Cove in June 2001]. The application of these rates would give rise to a requirement for 246 car spaces for residents and their visitors.

120. We also note that in between the October and November hearing days, an amended car parking plan was filed and circulated to the other parties. Amongst other things, this plan increased the on site parking provision in the basement to 232 spaces bringing the total on site provision to 243 spaces. In giving his evidence Mr Butler also said that the allocation of 24 car spaces for the commercial component was too high and that it would be appropriate to allocate 20 spaces for these uses based on conventional rates for retail and office use in inner areas. The application of these changes would mean that some 223 spaces would be allocated to the residential component.

121. In considering the car parking issue, whilst the provisions of clause 55.03-11 do not apply, we agree that they are a useful benchmark to assist our consideration of whether a reduction should be granted. There was essentially nothing presented to persuade us that the ResCode rates cannot be reasonably applied to this type of development, albeit that it involves is 1 to 2 storey higher additional one to two storeys If the ResCode rate is applied, then a total of 213 car parking spaces are required for the residents of the apartments with a further 41 spaces required for visitors, a total of 254 spaces. Given that 223 spaces are to be provided for the residential use, this leaves a shortfall of 31 spaces based on the ResCode standards. If the rates put forward by Mr Butler using the ABS data and the results of surveys at Beacon Cove are applied, then the requirement is 246 spaces, which is not markedly different to the overall requirement set out in ResCode. The consistency between the requirements set out in ResCode and Mr Butler's results demonstrate that the application of the ResCode rates is reasonable.

122. The application of the ResCode rate requires then gives rise to two issues. The first is whether it is appropriate to rely on kerbside parking resources in the area to make up the shortfall in visitor parking. The second is whether there should be a bank of ten visitor spaces on the site given that 213 spaces are required for residents and 223 spaces can be provided for the overall residential component of this development.

123. On the issue of the shortfall, it seems to us that it is not unreasonable to rely on the kerbside parking resources available for visitor parking. There are a number of factors that have led us to this view. First, the subject land has substantial frontage abuttals to both Macaulay Road and Haines Street. The various surveys conducted by Mr Butler, including spot checks, indicated that at over 50 car parking spaces are available at times of peak demand, however for most of the time, the availability is between 60-70 spaces. Second, the land was occupied by industrial land uses which relied on kerbside parking, mainly in Haines Street. We think Mr Butler's survey results show this given that the car parking demand was higher during business hours and then dropped off markedly before and after them. These land uses are to be replaced. Third, we do not accept Mr O'Brien's assertion that the spaces on the opposite side of Macaulay Road will be unsafe for visitor use and therefore should not be counted. The reality is that the spaces exist and they are adjacent to the site. We also do not accept that their use will create an unsafe situation given that there are two pedestrian crossings adjacent to the land. Fourth, we accept Mr Farrell's submission that there are parking pressures in Shiel Street. However, given the location of the apartments and the availability of parking in Macaulay Road and Haines Street, we see no reason why visitors would not seek to park in these locations. We consider it reasonable to rely on kerbside spaces for visitor parking having regard to the circumstances of this site.

124. In relation to the second issue, we consider that it would be desirable for a bank of at 10 visitor spaces to be provided on site given that we have accepted that the provision of 213 spaces would suffice for residents. There may be some practical difficulties with this however, we consider that it is a worthwhile objective to be achieved.

125. Taken overall we are satisfied with the amount of car parking provided on site and that it is reasonable to rely on kerbside parking to the extent proposed.

126. Next we turn to the internal layout issues. In his report, Mr O'Brien set out a number of concerns in relation to the safety and efficiency of the car park layout at page 8 of his report. In our view the most significant of these was his concern that there is only one access point from the car park to the street network and his suggestion that the car park should be broken into a number of smaller components with various access points provided.

127. Whilst it would not be undesirable to have more than one access point we note, from what Ms Quigley said, that the applicant had been advised to keep access to and from the site to Macaulay Road and to avoid Haines Street to reduce the potential for traffic to enter the adjacent residential area.

128. It is clear that a second access point to Macaulay Road would prove to be difficult given the constraints associated with the retention of the heritage buildings and the shape of the site. However, we were not persuaded that it is needed. We note that VicRoads have not objected to this proposal and have come to an agreement with the applicant with respect to access. In addition it must be remembered that whilst this is a relatively large car park, it is also one which mainly serves residential uses. We consider the provision of a single access point acceptable. We would also have thought that a system could be put in place whereby in the event of a mechanical breakdown, the security gates could be opened manually and then left open until repaired.

129. We have also considered the other issues raised by Mr O'Brien, Mr Butler's response together with the changes to the parking layout shown in the amended basement plan (TP1-2f) which was filed and circulated before the resumption of the hearing in November 2002. In summary we consider that:

* Concerns associated with the vehicles speeding along longer aisles can be remedied through the introduction of small speed humps where required;

* The access aisle arrangements have been modified so that the distance that vehicles have to reverse out of spaces 36 and 37 is not overly excessive;

* Additional area has been provided for spaces located at the end of aisles to manoeuvre;

* The aisle and wall adjacent to bays 167 and 168 have been modified in a satisfactory way;

* The width of the access aisle running parallel to the main entry ramp and near spaces 180 and 204 are satisfactory;

* The width to the ramp at the security gates has been widened to 6 metre as suggested by Mr O'Brien;

* We agree that the car space indented into the access ramp should be deleted and for the ramp to be widened accordingly, and

* A number of disabled parking bays have been provided.

130. In general terms we consider that most of the issues have been resolved to our satisfaction on the TP1-2f plan, however, some additional detail should be provided with respect to the provision of devices to slow vehicle speeds in longer aisles, the deletion of space 102 and the widening of the ramp and more detail on the basement security gates to ensure that they are capable of being manually operated in the event of mechanical or power failure.

131. Subject to the above, we find the car park layout acceptable.

132. In relation to access into the site, discussions were held between the applicant, the Council and VicRoads in the period in between the October and November hearing dates. Mr Butler tables a plan (101708/T/01 issue P3) showing how the access arrangements from Macaulay Road into the subject land would work. Essentially, we are of the view that satisfactory vehicle access can be provided via Macaulay Road. We note the concerns raised by Mr Farrell about the secondary access to the smaller car park off Shiel Street, however, the evidence does not support the proposition that it is unacceptable.

133. We have thus far focussed on the application seeking the review of the Minister's decision to grant a permit. There is also another application by the permit applicant against conditions. We note however, that the matters concerning the conditions review have essentially been resolved between the applicant and the Minister. The general terms of the agreement reached were set out in the letter from Deacons to the Tribunal dated 3 October 2002. During the course of the hearing further revisions to conditions were required, including the deletion of condition 3 on the basis that its requirements are already in the planning scheme and the reference to the latest traffic plan presented by Mr Butler for works in Macaulay Road. None the less at this stage, we are satisfied that the revised set of conditions as set out by Mr Appadurai represent the agreed position between the Minister and the permit applicant

134. Our conclusion is that as a matter of principle, this proposal is one which has substantial planning merit. It is consistent with planning policy, converting a large under utilised site for residential use. This is clearly consistent with the purpose of the zone and the thrust of the planning scheme's housing and urban consolidation policies. We find that the removal of the above ground gas regulator is a significant factor in favour of this proposal whilst the retention and adoptive re-use of the heritage buildings in a manner that is to the satisfaction of Heritage Victoria is also a major plus for this project. We find that the relationship between the heritage buildings and the new buildings has been well resolved.

135. In general we find that the proposal has been designed in a manner which is acceptable in both neighbourhood character and urban design terms and is consistent with the design and built form policies in the scheme. There are some modifications needed to the built form, some of which are significant, however if resolved, the outcome will be one which is acceptable having regard to the various design and built form policies in the scheme.

136. We have reviewed the various issues raised with respect to internal amenity. We acknowledge that it would be ideal for all apartments to have access to direct sunlight etc, however, the various issues relating policy and the factors that work towards providing amenity need to be balanced. We agree that modifications are required to enhance residential amenity and we have set out in these reasons changes that we consider are reasonable and achievable.

137. Car parking and access are also satisfactory.

138. It follows from the above that we have formed the view that this is a case where what is proposed is largely acceptable. However, there are a number of aspects of this proposal which we consider require modification and/or further information. We have set out earlier in these reasons our concerns on these matters and indicated whether changes or further information is required.

139. One option is to require these changes by permit condition. However, conditions ought to be as specific as possible to ensure that their meaning is clear.

140. Some of the changes which we find are needed, such as increasing the separation between Buildings 3 and 5 and the replanning the entry to Building 1 (and possibly its redesign depending on the future of the "Woods" operation) are significant. We think they will require some thought. We do not wish to stifle the potential for alternative design responses to be considered in relation to these issues. Furthermore we consider that the Council and the NWMA should be given an opportunity to view the changes and to comment on them.

141. Accordingly we have issued this interim document. We consider that the permit applicant should be given the opportunity to modify the plans and to demonstrate how the issues we have raised can be overcome. We have given a direction that requires, in the first instance, the permit applicant to advise the Tribunal in writing within 21 days of the date of this document, with copies to each of the parties who appeared or who were represented at the hearing, as to whether it wishes to prepare and tender amended plans taking account the matters raised in the reasons given herein. Upon the applicant advising whether the Tribunal's invitation to prepare amended plans is accepted and the timeframe within which they can be filed, we will give further directions requiring such plans to be served on the other parties, for the other parties to have an opportunity to make written submissions with respect to the changes shown and, finally, an opportunity for the applicant to make a written response to any further submissions made. We will make our final orders after this process.

142. In the event that the permit applicant does not accept our invitation to prepare amended plans, we will make our final orders based on the proposal as it now stands.