In permit application No. PP03/00567 a permit is granted and is directed to be issued. The permit will allow the use and development of the land at No. 60 Auburn Road, Hawthorn, for student accommodation (22 units with 47 beds), in accordance with the endorsed plans and subject to the following conditions:

1 Before the use and development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and three (3) copies provided, substantially in accordance with the plans submitted with the application (Revision C) but modified to show:

(a) The lower sill of north-facing windows to Units 1.1 - 1.4 inclusive to be a minimum of 1.7 metres above finished floor level.

(b) Internal walls for dwellings G6 and 67 clearly shown.

(c) A 1.7 metre high screen on the west side of the balcony to Unit 2.4.

(d) West facing windows adjacent to the west boundary at first floor level to have sill heights shown at a minimum 1.7 metres above the finished floor level.

(e) Trees within the reserve to the south and along the property boundary to the west (No. 95 Liddiard Street) shown as being protected.

(f) Any minor adjustments to the layout of the development to address the findings of the arborist report referred to at Condition 7.

(g) Provision of an entry pergola to the north-east pedestrian entry to the development.

(h) Creation of a ramp for disabled access between car space 11 and the rubbish enclosure.

(i) Re-arrangement of car spaces 1, 2 and 3 to provide for a clear fire escape along the western boundary.

(j) A reduction in the height of the front fence panel adjacent to the rubbish enclosure to no more than 2 metres.

(k) The retention of the existing fence along the western boundary.

(l) The retention of the liquidambar to the north-east of the site.

(m) Details and profiles of the solar hot water panels.

(n) A schedule of all external materials, finishes and colours (including colour samples), showing the materials, colour and finish of all external walls, roof, fascias, window frames, glazing types, doors, fences, and paving. The schedule must address the degree of reflectivity of glazing.

2 The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

3 Prior to the endorsement of the plans referred to in Condition 1, the owner of the land must enter into and execute an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987 to the satisfaction of the Responsible Authority and such agreement shall require that, without the prior written consent of the Responsible Authority:

(a) The car parking spaces approved under this permit are only permitted to be used by the occupants of the relevant dwellings and their visitors, in accordance with the endorsed plans, and such car spaces must not be on-sold or leased to any other person;

(b) That the building is to be used for student accommodation only.

A memorandum of the Agreement is to be entered on title and the cost of the preparation and execution of the Agreement and entry of the memorandum on tide is to be paid by the owner.

4 Prior to the use commencing, a Site Management Plan must be prepared for the site to the satisfaction of the Responsible Authority having regard to the adjoining properties. The plan must not be modified without the written consent of the Responsible Authority. The plan must address (but is not limited to):

(a) The allocation of car spaces to specific dwellings, with the spaces abutting the doors to Units 1.1 - 1.4 inclusive being allocated to those units respectively.

(b) Resident and/or guest behaviour, activities and noise, visitors and parties and the extent to which external areas may be used at night;

(d) A requirement that should behavioural problems occur at the site causing disruption to surrounding residents, the operator under the permit must immediately take immediate ameliorative action to the satisfaction of the Responsible Authority;

(e) Maintenance of the grounds and upkeep of the buildings;

(g) Management of clothes drying facilities to ensure that no laundry drying occurs on the balconies of the units.

This Site Management Plan to be prepared to the satisfaction of the Responsible Authority and shall only be amended with the written consent of the Responsible Authority.

5 Buildings, engineering works and fences must be maintained to the satisfaction of the Responsible Authority.

6 Within 30 days of the endorsement of the plans referred to in Condition 1 of this permit, a landscape plan prepared by a landscape architect or suitably qualified and experienced person or firm incorporating:

(a) an accurate survey of all existing vegetation to be removed and retained and other natural features;

(b) the retention of the liquidambar to the north-east of the site and trees on adjacent properties including No. 95 Liddiard Street and within the reserve adjacent to the southern boundary;

(d) a schedule of all proposed trees, shrubs and ground cover, which will include the location, number, size at the time of planting, height and spread at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;

(e) the provision of canopy trees along the western boundary, taking into account the position of vegetation on the land at No. 95 Liddiard Street;

(f) the use of canopy trees planted at an advanced stage;

(g) with the agreement of the Responsible Authority, the provision of a street tree(s) adjacent to the Auburn Road frontage of the site;

(h) planting required by any other condition of this permit;

(i) paving, retaining walls, fence design details and other landscape works including areas of cut and fill and finished site levels;

must be submitted to the satisfaction of the Responsible Authority. When the landscape plan is to the satisfaction of the Responsible Authority it will be endorsed and will form part of this Permit.

7 Prior to the construction of the building or the carrying out of any works, a qualified arborist approved by the permit holder to provide a report to the satisfaction of the Responsible Authority as to the measures to protect trees on adjacent sites during construction, notably trees on the eastern boundary of No. 95 Liddiard Street and the northern boundary of the reserve on the corner of Liddiard Street and Auburn Road.

8 In the event that any of the trees on adjacent properties die as a result of the works it/they must be replaced with a tree or trees of an appropriate size and species to the satisfaction of the Responsible Authority.

9 An in-ground sprinkler system must be installed in all landscaped areas, to the satisfaction of the Responsible Authority.

10 Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.

11 All landscaping works shown on the endorsed landscape plans must be maintained and any dead, diseased or damaged plant replaced, all to the satisfaction of the Responsible Authority.

12 The land must be drained to the satisfaction of the Responsible Authority and all drainage works must be completed prior to the occupation of the building.

13 Stormwater drains are to be connected to a legal point of discharge approved by the Council. Drainage Connections within a road reserve, parkland, within an easement or to a Health Act drain must be to Council's standards. A Council Supervision Permit is required for this work.

14 Any new vehicle crossover or modification to an existing vehicle crossover must be constructed in accordance with Council's standard details. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.

Construction of Driveways and Car Parking Areas

15 Before the use starts or any building is occupied, areas set aside for car parking, access lanes and driveways shown on the endorsed plans must be:

(b) Formed to such levels and properly drained so that they can be used in accordance with the endorsed plans;

(e) Clearly marked to show the direction of traffic along the access lanes and driveways;

16 External driveways and parking areas must be constructed with dark coloured concrete or bitumen, coloured patterned concrete, interlocking paving blocks or brick paving to the satisfaction of the Responsible Authority.

17 Car spaces must not be used for any other purpose other than the parking of vehicles, to the satisfaction of the Responsible Authority.

18 Redundant vehicular crossings must be removed at the same time as the construction of any new crossovers and prior to the completion of development works. The cost of removal of the existing crossings and the reinstatement of street assets [ie. footpath, nature strip and kerb and channel] is to be borne by the applicant and must be in accordance to standards specified by the Responsible Authority.

19 The applicant and/or any other responsible person will be required to meet the full cost of reinstatement of Council assets damaged as a result of demolition and/or building or construction works. The reinstatement of any and all damaged street assets [ie. road, crossover, footpath, nature strip, kerb and channel, drainage assets, etc] is to be borne by the applicant and must be in accordance to standards specified by the Responsible Authority.

20 All outdoor lighting must be designed, baffled and located to prevent light from the site causing any detriment to the locality, to the satisfaction of the Responsible Authority.

21 Prior to the endorsement of the plans in Condition 1, a waste management plan must be submitted to the Responsible Authority for approval. Such plan must provide details of a regular garbage collection service to each of the uses on the subject land, including information regarding the type of refuse bins, type/size of trucks, means of accessing bins and frequency of refuse collection, to the satisfaction of the Responsible Authority. Once approved, such plan must be implemented to the satisfaction of the Responsible Authority.

22 The Body Corporate/caretaker must provide a regular private waste collection including a regular collection of recyclable materials from the land to the satisfaction to the Responsible Authority. This condition must be brought to the attention of any and all prospective purchasers of dwellings to be constructed on the land by inclusion of a copy of the planning permit in the Vendors Statement affecting the land.

23 Collection of waste must be conducted so as not to cause any disturbance to nearby residential properties and may only occur between the hours of 6.30am and 8.00pm Monday - Saturday and 9.00am to 8.00pm Sundays and Public Holidays, to the satisfaction of the Responsible Authority.

24 All bins and receptacles must be screened from view and be maintained in a clean and tidy condition and free from offensive odour.

25 All works including earthworks, demolition and construction activity associated with the approved development is to be limited to the following hours, unless with the prior written consent of the Responsible Authority:

26 Prior to the commencement of development on the site (including any demolition and material removal) the applicant must submit to the satisfaction of the Responsible Authority a Construction Management Plan. The plan must address, but not be limited to, the following:

(a) Fencing to contain litter, restrict vehicle access and to restrict unauthorised access to the site, while ensuring that the right of way remains available for public use and vehicle access.

(c) Delivery and unloading points and expected frequency.

(d) A liaison officer for contact by residents and the Responsible Authority in the event of relevant queries or problems experienced.

Once approved, the Construction Management Plan will be endorsed and form part of this permit.

27 All pipes (except down-pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the Responsible Authority.

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

29 Any air-conditioning or cooling units, condensers and the like must not be located on external walls or on balconies without the prior written consent of the Responsible Authority.

30 Dividing walls and floors between dwellings must be constructed to limit noise transmission to 45 STC (Sound Transmission Class) in accord with Part 17(5) of the Building Code of Australia.

Reticulated Electricity to be Provided Underground

31 Reticulated electricity must be provided underground to the subject land and all buildings on the land, to the satisfaction of the Responsible Authority.

32 Temporary barricades to protect trees to be retained must be erected around such trees, to the satisfaction of the Responsible Authority prior to the commencement of any works. Such barriers must be of solid materials (such as temporary cyclone wire fencing securely positioned on the site) and must be maintained during construction operations, to the satisfaction of the Responsible Authority.

Contractors to be Advised of Trees to be Retained

33 The owner must ensure that all contractors/tradespersons operating on the site are advised of the status of trees to be retained prior to the commencement of the related construction tasks.

Measures to Minimise Compaction and Damage to Tree Roots

34 Without the prior written consent of the Responsible Authority:

(a) No goods, materials or stockpiling of fill is to be stored or vehicles parked within the drip line of any tree to be retained;

(b) No excavation, trenching or soil removal is permitted within 3 metres of any tree to be retained.

35 The applicant shall pay the full costs of all roadworks, service relocations, signage and other costs associated with these works.

36 Redundant vehicle crossovers shall be removed and the footpath, nature strip and. kerbing reinstated to the satisfaction of the Responsible Authority.

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

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

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

Mr A Southall QC instructed by Mr N Crawford of Best Hooper solicitors. Evidence was called from Mr C Czarny, urban designer, Ms S Rigo, town planner, Mr J Higgs, traffic engineer and Mr G Wilson, Director of Student Housing Australia Pty Ltd.

Mr A Greenwood, architect, was called at the commencement of the Hearing to provide an overview of the proposal.

Ms di Carlo, solicitor of Russell Kennedy solicitors for Mr and Mrs Jeffrey.

Mr J Perry, Mr A Wilson, Mr E Ranieri, Ms A Stawell, Mr A Newman, Mr G Loel, Mr P Howells, Mr W Gault, Mr A Creighton, Ms F Grant, Mr A Renn and Ms S Gunnersen all in person. Several other persons were also in attendance.

1 This is an Application under Section 79 of the Planning and Environment Act 1987 brought by Melbourne International Student Accommodation against the failure of the City of Boroondara ("the Council") to determine permit application no. PP03/00567 within the prescribed time. The Application for Review was lodged 26 November 2003.

2 Ms Gunnersen sought leave to be joined into the proceeding. There being no objection, I granted leave for her to be joined as a party pursuant to the relevant provisions of the Victorian Civil and Administrative Tribunal Act 1998.

3 The subject site is located adjacent to the north-west corner of Auburn Road and Liddiard Street. It has an area of some 1,203 square metres, with a frontage to Auburn Road of 24.38 metres. It abuts a 4 metre wide bluestone right of way (leading to the rear of properties in Lyndhurst Crescent) to its north and a small public reserve that is on the north-west corner of Liddiard Street and Auburn Road to its south. [Liddiard Street terminates at this point and Rathmines Road is to east of this intersection]. The land falls toward the south, by some 1.5 metres and the small park is also elevated above the pavement level of Liddiard Street. The review site is occupied by a single storey Victorian era building that has most recently been used as a nursing home. It was in that use for some 45 years, since 1959.

4 The residence to the west of the review site, at No. 95 Liddiard Street, has its rear yard and a hipped roof garage in the north-east corner that is the immediate interface with the subject site. The residence abuts the open space reserve referred to above. Additional brick Victorian single storey dwellings, that are elevated at the front (utilising the fall in the land) are also further to the west. They have established front gardens and rear access to the right of way.

5 To the north of the review site, at No. 58 Auburn Road is a two storey c.1960s brown brick apartment block comprising 4 apartments, with an open car parking to the rear, off the right of way. It has landscaping along the front (east) of the site and along the southern boundary (adjacent to the building).

6 Further to the north, at No. 56 Auburn Road and the south corner with Lyndhurst Street, is a double storey brick building dating from the late 19th century that used as a dwelling and a separate medical practice.

7 To the south of the review site, on the southern corner of Liddiard Street and Auburn Road, is a unit development that comprised a refurbished c. 1960s/70s block of flats and an older two storey dwelling. These buildings have narrow front setbacks. Some other flats are further to the south, downhill along Auburn Road.

8 The opposite side of Auburn Road comprises predominately single dwellings slightly elevated on their lots (in part) with established front gardens and many high solid fences.

9 The surrounding area is residential in use with a range of building styles and forms.

10 Auburn Village and the Auburn Railway Station are a relatively short distance to the south of the review site. The Village is within a dip in the landform, under a railway line and then rising toward Burwood Road.

11 Auburn Road is an arterial road while Liddiard Street is a narrow but busy road with traffic control devices.

12 It is proposed to demolish the existing building and construct a three level building with 22 self contained apartments and a total of 47 bedrooms. The units involve bedrooms with a study desk and shared kitchen and bathroom facilities. A total of 11 on site car parking spaces is proposed, all accessed via the right of way with parking along the north side of the development.

13 The development involves split floor levels and some cut to the north of the land. The ground level would be below the level of the right of way, to effectively present as a two storey structure to the right of way. The ground floor of the building would the rise from natural ground level towards the southern end of the development, as the land slopes to the south. It would therefore present as 3 storeys when viewed from the east (part) and south. The maximum building height would be 9.85 metres.

14 At the lower level, the proposal provides for a minimum front setback of 6.18 metres to Auburn Road, a minimum setbacks of 3 metres from the southern boundary and 2 metres from the western boundary. The setbacks at the upper two levels increase along the western boundary to 2 - 2.5 metres and then 7.65 metres although the form adjacent to part of the rear yard of No. 95 Liddiard Street is partly single storey. The upper levels along the southern and eastern elevations are similar to the lower level.

15 The area set aside for parking is 6.4 metres with the upper level cantilevered over this space (excluding stairs and entry), with balconies at the second level being 1 metre from the northern boundary. The setbacks along the northern boundary vary considerably, given the inclusion of two courtyards that provide the main amenity for most units.

16 Each unit is provided with private open space in the form of balconies, except for four units (Units 1.1, 1.2, 1.3 and 1.4).

17 A rubbish enclosure is proposed to the street frontage, behind a 2.9 metre fence. Fencing to Auburn Road is to be a mix of timber and masonry panels, at a height of 1.6-1.8 metres. A vertical steel flat bar fence is proposed to the south boundary. Some pergola entry points are shown.

18 The design includes a flat roof and solar water/heating panels at locations shown on the roof plan. Other materials and finishes include rendered masonry, timber fascia and vertical cladding, and colourbond roofing.

19 Ms Rigo's evidence states that it is proposed to remove all vegetation from the site, with the exception of a liquidambar to the north-east corner. A draft landscape plan was tendered on the second day of the Hearing.

20 Mr Wilson explained Student Housing Australia's role in managing the facility. The facility would be marketed overseas and made known through Swinburne University's housing services. Units are rented fully-furnished.

21 The subject site is zoned Residential 1 under the provisions of the Boroondara Planning Scheme ("the Scheme"). Pursuant to Clause 32.01, a permit is required to use and develop the land for the purpose of a residential building. Decision guidelines are set out in the Clause. The provisions of Clause 55 apply to the construction of or extension to a residential building.

22 No Overlays apply to the land. Land to the north of the review site (north of the right of way) is located within a Heritage Overlay (HO 155 Lyndhurst Crescent precinct). Land to the east, on the east side of Auburn Road, is within HO 151 the Harcourt Street precinct. A further area, HO146, is further to the south-west, around the Hawthorn Central Gardens.

23 Car parking requirements for a residential building are set out at Clause 52.06. Pursuant to the table to the Clause, 1 car space would be required per lodging room. The proposal seeks a reduction in parking to 11 spaces and the decision guidelines set out at Clause 52.06 must be considered.

24 Auburn Road is located in a Road 1 Zone. The permit application was referred to VicRoads as it is proposed to remove the existing crossover to the Auburn Road frontage (south-east).

25 No objection was offered to the proposal by VicRoads, subject to a number of conditions as set out in correspondence dated 1 December 2003 to the Responsible Authority.

26 A number of other Clauses are relevant to the consideration of this Application, including Clauses 11, 14, 15, 16, 18.01, 18.02 and 19.03, Clause 21, Clause 22.03 (Car Parking), Clause 22.04 (Discretionary Uses in Residential Zones); Clause 22.07 (a Neighbourhood Character Policy that applies to all residential development in the municipality) and Clause 65 (general decision guidelines).

27 The land is located within Area 75 as described in the Council's Residential Urban Character Study that is a reference document in the Scheme.

28 The Tribunal has had regard to Melbourne 2030.

29 I have considered the submissions and evidence presented and have inspected the subject site and locality including private properties closest to the review site. I do not recite all of the material presented, as the written submissions, statements of grounds and statements of evidence tendered by the parties are retained on file, although I do refer to some of the main points. I set out my findings in relation to the key issues in this Application having regard to the policies, objectives and decision guidelines of the Scheme. The key issues for determination by the Tribunal are:

* whether the proposed use is acceptable in the location proposed.

* whether the proposal is acceptable in terms of urban design, streetscape and neighbourhood character considerations.

* whether the proposal would result in unacceptable off-site impacts.

* whether the internal design and layout are acceptable.

* whether unacceptable impacts on traffic and parking would result.

30 The Scheme recognises that Swinburne University and other institutional facilities are major assets. Clause 21.09 seeks to retain the City of Boroondara as a regional centre for education and health services and it is a strategy to "continue the vital role of education and health facilities in order to provide the best education and health care for the community". The strategies are to be implemented by, inter alia, the application of the local policy at Clause 22.04 (Discretionary Uses in Residential Zones).

31 Other policies relating to urban character (Clause 21.05 and 22.07), residential development (Clause 21.07) and movement (Clause 21.12 and Clause 22.03) are also relevant. [I note that although Clause 22.06 (Institutional Uses policy) makes reference to Swinburne it is not specifically covered in the list of institutional uses to which the policy applies and therefore is not of particular relevance to this Application].

32 A balance between policy outcomes is sought by Clause 22.04 where it adopts various general objectives such as that a proposed use provides services responding to a demonstrated need, that the use minimises impacts on existing residential areas, that new buildings complement the appearance of existing nearby dwellings, that sites previously used for non-residential purposes be favoured and that demolition of existing dwellings be minimised.

33 Having regard to the more specific provisions of Clause 22.04, I note Mr Crowder's remarks that the proposed use was assessed by the Council officer as a "high intensity community" but could be more aptly considered as an "institutional use" given that "residential building" is specifically nominated under the latter heading. The provisions are not, however, significantly different in terms of design, character, on-site and off-site considerations and I am therefore satisfied that this is not critical. In that context, it is relevant that the subject is located on land with frontage to a Road 1 Zone as is sought by both parts of the policy.

34 It is common ground between the Council, Applicant and some Objectors that there is a need for student accommodation. Some Objectors expressed concern about the development of another facility, taking into account several student accommodation proposals that are under construction or have been approved. That other facilities may be developed is not a factor that causes me to reject this Application. There are a number of cases where the Tribunal has considered need, decisions with which I agree (for example Shell Company of Australia Pty Ltd and Ors v City of Frankston and Anor 8 APAD 127 at 135). The main point is that demonstrated need for a facility or use may be a relevant factor but "lack of a need will rarely, if ever, be a ground for refusing to grant a permit" as stated in Shell. It is not necessary to await the development of other approved facilities before the current proposal should be considered or allowed to proceed.

35 The Council's submission expressed concern about the use and its intensity outside an activity centre, comments reiterated by some Objectors, noting distances to supermarket and other shopping facilities and that the proposed use would be outside the "university precinct". These submissions were challenged through the evidence of Mr Wilson and Ms Rigo.

36 I am not persuaded that the subject site is readily proximate to the Glenferrie Road major activity centre given it is some 750 metres to the east but it is close to Auburn Station and Auburn Village at 200-300 metres.

37 Auburn Village is a smaller and more specialised centre than Glenferrie Road that has a much broader range of retail and other facilities, as recognised by Clause 21 and Clause 22.10. However, I am not persuaded that the subject site is unsuitable given distances to the closest supermarket, for example. Rather, the site is accessible to Swinburne University and rail services and these are important factors for a facility of the type proposed. The Planning Scheme does not identify a "university precinct" but there may well be a masterplan or other strategic statement relating to the University. I find no reason to require a student accommodation to be closer than this site or within some designated precinct based on the current Scheme policies.

38 Moreover, I consider that the site is one that can support a relatively intense development. This is because it is on a main road, close to the intersection and prominent when viewed from various vantage points around the intersection, and because it shares a direct boundary with a lane, a park/reserve and only part of one boundary with a residence.

39 My comments in Application for Review No. P1521/2003 Melbourne International Student Accommodation v Whitehorse CC and Ors are apt in this context:

In my view, it is significant that the review site is located at the junction of two main roads where more intense building forms can often be accommodated more readily than on a site centrally within an established residential area as there are fewer sensitive abuttals with the potential to create amenity impacts.

40 Some weight was attached by the Applicant to the previous use of the land for a nursing home, and therefore for an institutional activity, which is a relevant consideration under Clause 22.04. It may be some of relevance that the land has not been in private residential use for some decades, but that is not particularly influential to my findings in so far as student accommodation is entirely appropriate in a residential zone, being a specialised but residentially-based use.

41 A number of other concerns were raised in submissions relating to the principal of the proposed use, referring to matters such as the potential for the units to be sold, the uncertainty that international students would reside at the site, and the future of the development if student accommodation was not successful or no longer required.

42 These are fair questions to ask but none cause me to reject the proposal, rather, they are matters that can be addressed or controlled by way of permit conditions. Mr Crowder proposed the requirement for a site management plan in the event that a permit was directed to be issued, a suggestion not opposed by the Applicant. The Council also proposed a Section 173 agreement between the Applicant and Council that would be a binding agreement (registered on title) confining the use as student accommodation. That was also not opposed by the Applicant.

43 I note a Site Management Plan was required in Application for Review No. P404/2003 Melbourne Student Housing Accommodation v Whitehorse City Council and Others, and that provides a model that can be adopted in the current proceedings. It addresses similar matters to those referred to by Mr Southall, Mr Wilson, Council and Objectors such as on-site management, supervision, waste collection, clothes drying, use of outdoor areas and providing a contact point between management and nearby residents.

44 Together, a Section 173 agreement relating to the use of the land and a Site Management Plan give a degree of certainty as to the ongoing use of the land. That is both in terms of the land use as well as in relation to day to day operations. It does not guarantee the future use of the land in perpetuity, as agreements can be varied and a permit can be applied for in relation to subdivision of units. However, they are matters that would require Council assessment consideration either by way of a variation to an agreement and/or planning permit.

45 Under this heading, I refer first to the demolition of the existing building on the review site, a matter of considerable concern to a number of local residents.

46 As many Objectors acknowledged, the review site is proximate to several heritage precincts as I have identified above but it is not located within a Heritage Overlay. There is, therefore, no planning permit required to demolish the building. Therefore, despite the policy at Clause 22.04 that "the demolition of existing dwellings be minimised", there is no control provided by the Scheme to achieve such an outcome in this case.

47 I accept that the building was graded C3 in the Hawthorn Heritage Study and that, on the face of it, could be restored to its former glory and grandeur as have many other buildings in the nearby heritage precincts. The building has been altered over the years and although the information tendered at the Hearing in relation to its history is of interest, I find no basis on the information before me to be able to require the building's retention.

48 I next turn to the proposed development and its relationship to the streetscapes and neighbourhood character.

49 The proposed building was criticised in terms of its contemporary design and flat roof, its height, mass and forward position on the land; and the lack of landscaping opportunities around the building with a resultant reliance on landscaping off-site. There were also a number of more detailed matters that were felt to be problematic by those opposing the Application, such as the height of a rubbish bin enclosure, the sense of address to the building and the potential reflectivity of glazing elements.

50 I first consider the relevant context for assessment, a matter on which all parties commented and evidence was given by Mr Czarny and Ms Rigo.

51 In defining the context, it is essential to consider the two directly adjacent sites, being No. 95 Liddiard Street and the reserve. There is also the lane, the two storey flats at No. 58 Auburn Road, north of the lane, and to a lesser extent the rear of properties at the end of Lyndhurst Crescent that back onto the lane. The dwellings on the east side of Auburn Road are relevant too as are, to a lesser extent, buildings on the south side of Liddiard Street.

52 It is also relevant that the subject site is at the intersection of three busy roads (Auburn Road, Rathmines Road and Liddiard Street). It is not on the north-west corner, given the location of the reserve. However, when viewed from the south in Auburn Road, at the intersection and from the east in Rathmines Road, the site is prominent. It is masked to a significant degree from Liddiard Street (north side) by the developments to the south-west of the review site but would be more exposed to the south side of Liddiard Street to a slightly higher degree.

53 I think that it is fair to say that the character of Auburn Road north of intersection differs to the character to the south. That is primarily in terms of the lesser contribution made by landscaping and the higher proportion of c. 1960s/70s style buildings that are present to the south of Liddiard Street/Rathmines Road. A "harder" built form is associated with the Auburn Village centre, with its charming and quite intact heritage character.

54 I do not share the views of some residents that Liddiard Street is a boundary that provides a demarcation between heritage areas to the north (and therefore heritage values to which a development on the review site should respond) and the more mixed character to the south. It is relevant that the dwellings on the north and south sides of Liddiard Street at its eastern end are not in a Heritage Overlay.

55 The absence of heritage control affecting the review site is significant as a number of submissions sought to give weight to the relationship of the subject site to heritage areas and sought for the design to take stronger cues or give greater reference to heritage building forms. However, I am not satisfied that such a position finds policy support. The site abuts a heritage precinct to the north, however, the closest building within that precinct is at No. 58 Auburn Road, a c. 1960s block of flats. Given that this is the only interface of this site with a heritage precinct, and while still being mindful of the proximity of other heritage areas, I am persuaded that a contemporary form is acceptable in principle and policy seeks quality architecture which I believe is represented by this design. I add in passing that contemporary solutions are readily accepted in heritage areas. Consequently, I see no need for a pitched roof, for example, that would be a token element. Instead, I find the design to be well articulated along its east elevation and to present an acceptable solution along its southern elevation taking into account the trees within the reserve.

56 Therefore, I am not persuaded that the outcome of the development would be an unreasonable impost on the streetscape or that the scale would be excessive in terms of neighbourhood character. Rather, it would read as a contemporary design in a reasonably prominent location.

57 The presentation to Auburn Road and the intersection is modulated in form. The cut to the northern portion of the site enables the proposed building to present as partly two level and partly three level, with the higher element toward the corner. The overall height is not at odds with some quite substantial buildings in the vicinity, albeit it is taller than the single storey buildings opposite in Auburn Road. The front setback to Auburn Road was criticised by the Council, however, the siting of the building is acceptable when considering the existing buildings at the corners of the intersection.

58 The southern elevation of the proposed development is broader and higher, accentuated by the fact that the review site is elevated above Liddiard Street. Trees in the reserve would influence the extent to which the building would be seen, with a substantial proportion concealed for much of the year by evergreen trees. The building would not be hidden, but there is no need for it to be so. The design fairly uses the reserve to provide some sense of setting and does not present blandly to this edge. The envelope steps down toward the west to provide a transition to the single storey dwellings to its west. The step is greatest to the north-west where the proposed development would appear as single storey at ground level.

59 I am satisfied that there are sufficient opportunities to provide a landscape setting for the development on-site mindful that new planting would be influenced by the parkland to the south and the vegetation that exists to the west. The design does not borrow too heavily from the adjacent sites when considering the proposed low-rise north-west portion. In that way, I am satisfied that it is an appropriate response taking into account the policies at Clause 22.04. A higher form proposed closer to the western boundary may have caused me to conclude differently in relation to the western setback.

60 The front setback allows for new planting, while also retaining the liquidambar to the north-east. That could assist to ensure that the car parking area is not obvious in views from the street. In addition, as I raised at the Hearing, there may also be opportunities for street tree planting to the Auburn Road frontage, as supported by Mr Czarny and Mr Higgs.

61 The development would present as two levels to the lane, with the three level sections set back by 11-12 metres. The location of parking at the ground level may initially seem an issue, but the structure overhangs some of these spaces and the appearance is acceptable when taking into account the current laneway abuttals that include garages, fences and open parking.

62 The section of higher fencing associated with the rubbish enclosure should be reduced. A stronger marker to the pedestrian entry to the north-east of the site would also be desirable and can readily be achieved in a similar form as the entry to the south-east as noted by Ms Rigo.

63 The positioning of solar panels requires consideration in so far as there is limited detail about the profile of these elements. The roof plan appears to show them set back from the primary edges but that is a matter warranting review and can be dealt with by condition. It would not be desirable for these elements to be too prominent or distract from the principal façades.

64 I finally add that I am not persuaded that approval of the current development would set an undesirable precedent for heritage areas, a concern expressed by some residents. Each permit application must be assessed having regard to the controls and policies that are relevant. An application for a development in a nearby heritage precinct would be considered differently to the assessment required in the current Application.

65 For the above reasons, I accept submissions that the overall mass and form of the proposed building on the subject site is acceptable in this relatively prominent location. I am satisfied that the proposal represents an acceptable outcome in terms of the policies and decision guidelines of the Residential 1 Zone, Clause 55, Clause 21, Clause 22.04 and Clause 22.07.

66 I next refer to potential impacts on each of the adjacent properties.

67 To the north, residents of some dwellings in Lyndhurst Crescent and the owner of the property at No. 58 Auburn Road, expressed concern about visual bulk, the appearance of roof-top equipment/solar panels, overlooking and noise associated with increased use of the laneway and additional dwellings.

68 In relation to overlooking and loss of privacy, I find as follows:

* the minimum separation between windows in the proposed development (upper level, Units 2.1, 2.2 and 2.3) and the units at No. 58 Auburn Road is around 9 metres. That is measured to the proposed balconies with some screening and I note that the proposed living room windows are setback further. I am satisfied that unreasonable overlooking would not result, although all overlooking would not be prevented. No additional screening is required, although details of screening measures (louvres) should be provided to the Council.

* overlooking between ground level windows would not be an issue given the existing fencing associated with No. 58 Auburn Road.

* there is no need to require screening to respond to the position of dwellings or private open spaces further to the north-west of the review site with a separation distance well in excess of 9 metres as referred to at Clause 55.

69 In relation to visual bulk and outlook from dwellings to the north/north-west of the review site, I find as follows.

70 The development would be visible from residence to the north of the site, and present a larger form than currently exists. I am not, however, persuaded that the extent to which the building would be visible equates to unreasonable visual bulk. Rather, the building is well articulated along its northern and western elevations - the areas that would be exposed to view from houses and units the north and north-west. In addition, the fall of the land ensures that the development would in fact sit lower than the dwellings in Lyndhurst Crescent and at No. 58 Auburn Road. The ability to see roof-top panels and plant from nearby dwellings, or a loss of a view to the railway, does not cause me to require changes to the development, but details of these panels are required. I do not consider that there would be an unreasonable loss of outlook to the sky although the building would change views and appear in the foreground from some units.

71 The parking area and use of the laneway would cause noise, although possibly little more than the nursing home use which also relied on the laneway for some of its parking.

72 In considering the relationship of the development to the dwelling to the west of the review site, Ms di Carlo expressed concern about the increased visual bulk, noise associated with the entry to some units along the western site boundary and potential for overlooking that would be experienced by her clients at No. 95 Liddiard Street, together with issues such as increased shadowing and potential impacts on vegetation on No. 95 Liddiard Street. Submissions by other residents to the west, such as Mr Renn, also expressed concern about visual bulk and a loss of privacy.

73 I first refer to visual bulk as presented to the west. The proposal is designed to present with two levels at natural ground level relative to the northern edge of the Jeffrey dwelling at No. 95 Liddiard Street and part of their rear secluded open space. The third level of the development would be setback by some 7.8 metres from the common boundary. The remainder of the development would be at single storey relative to natural ground level.

74 The proposal would present a change in outlook from the Jeffrey property but it is not unreasonable in my view. In reaching that conclusion, I am persuaded by the substantial setback of the third level and the single storey form that presents to around one half of the rear private open space. There is also the extensive planting along the common boundary but on the Jeffrey property, which is important to protect, and the potential for supplementary planting on the review site's western boundary.

75 The third level would be more noticeable in longer range views, such as potentially from Nos. 93 and 91 Liddiard Street, but that again does not equate to excessive visual bulk when taking into account the distance and intervening elements such as planting and fences.

76 There would be some increase in morning shadows as a result of the development, that being to the north-east section of the dwelling at No. 95 Liddiard Street and a small section of the rear open space. [That excludes the impact of existing vegetation which would limit some sunlight access at present]. The standards of Clause 55 are met and I find no basis to reject or vary the proposal for reasons relating to shadowing impacts.

77 There could be some noise associated with the western portion of the review site, such as if students access a unit along the western boundary. I do not find that unreasonable in a residential setting and am not persuaded to restrict the use of the western pathway to fire escape purposes only or to require acoustic attenuation, as had been suggested by Ms di Carlo.

78 The potential for unreasonable overlooking to properties to the west has been addressed by the use of opaque and highlight windows at the first floor level. The extent of setback to the third level and position of the second level would limit views from the upper-most bedroom windows in Unit 2.5 and that circumstance, together with the separation distance of nearly 8 metres, leads me to conclude that the upper level west-facing bedroom windows to that unit do not require screening.

79 Again long distance views to other properties to the west would not be precluded from Unit 2.5, but the separation distances well exceed the Clause 55 requirements.

80 I find no basis to vary or reject the proposal for reasons of noise associated with the laneway for other properties further to the west of the review site.

81 In addition, I find no issues in terms of impacts to residents to the south or east of the review site.

82 Having regard to the above, I am satisfied that the proposed works would not result in unreasonable impacts to the properties to the north and west and others further from the review site.

83 Several aspects of the layout of the proposed units were criticised.

84 First I refer to the entries to some units. Several submissions referred to the poor entry arrangements for some units and lack of a sense of address for the development. Evidence for the Applicant was that the layout was acceptable, although Ms Rigo suggested that the north-east entry could be marked by a pergola element as associated with the south-east entry.

85 While there could potentially be a somewhat circuitous arrangement for some units, the multiple entry points allow ready access in most cases. While I agree with the suggestion made by Ms Rigo, I am unable to find the form of entries to be a basis to reject the proposal.

86 Second, is the location of some car parking spaces adjacent to doors and windows in Units 1.1 - 1.4. This is a valid concern in terms of noise and headlight glare. The plans show the windows to be opaque to 1.7 metres and alternative entry doors are available. I am not persuaded to delete the doors, but I intend to require that the windows be highlight in form. Access to daylight and sunlight would remain via the larger windows that face into the courtyards.

87 Third, the sunken courtyards could be seen as an issue in terms of daylight/sunlight access. However, the size of these spaces would allow a reasonable level of amenity based Ms Rigo's and Mr Czarny's evidence.

88 Fourth, is the adequacy of private open space. Many units have a separate north-facing balcony however, several units have no balcony. Those that do not have access to the courtyards and that is acceptable for this housing type.

89 Fifth, is the fire escape to the western boundary, which is potentially blocked by car space no. 1. Mr Higgs explained that it would be possible to reconfigure car spaces nos. 1-3 to allow a clear fire escape, and that is desirable in my view. That can also be addressed by a permit condition.

90 Overall, while the layout may not be suitable for a conventional medium density housing scheme, I find it acceptable for the use proposed.

91 One of the main concerns raised by local residents related to their view that the proposal is severely lacking in on-site parking and would exacerbate an already congested parking situation. Other concerns related to the potential for cars to block the laneway or park in it as well as increased traffic on local streets. Evidence in relation to these matters was presented by Mr Higgs on behalf of the Applicant.

92 First, I refer to the adequacy on on-site parking. The proposal provides for a total of 11 on-site spaces and does not provide for any separate visitor spaces. That is based on a rate of 0.1 space per student and 4-5 visitor spaces based on Clause 55, in Mr Higg's evidence. Mr Higgs said that 11 spaces would be ample and if, on occasion, there were numerous visitors, then adequate space would be available on-street for any overspill.

93 The Council's submission identified a need for 19 spaces based on a rate of 0.3 spaces per bed and 0.1 space per bed for visitors, thereby resulting in a shortfall of 8 spaces. Mr Crowder stated that the Council had adopted a similar rate for other applications. Residents argued for a much higher rate given the number of students on site and the potential for students to have vehicles.

94 As noted by Mr Southall, the question of parking demands for student accommodation has been dealt with by various divisions of the Tribunal on a number of occasions. There is a consistent theme that the parking demands associated with accommodation for international students is low, a matter on which Mr Wilson and Mr Higgs gave evidence in the current proceedings. That is a result of a range of factors such as a low number of students that do not arrive in Australian with an international driver's license, the availability of public transport, and accessibility to education facilities that limit the need for a vehicle for study, work or recreation.

95 A recent case addressing this matter relates to a proposal for student housing in Queens Avenue (Application for Review No. P2286/2003 Pembroke Development Corporation Pty Ltd v Boroondara City Council and Others), a short distance to the south of the review site in the current proceedings and closer to Auburn Village, Auburn Station and Swinburne. In that matter, Member Cimino said:

On reviewing this issue, there is a relatively strong body of evidence to support the proposition that student housing facilities such as this generate relatively low car parking requirements. This has been the consistent finding of the various divisions of the Tribunal in cases relating to student housing accommodation. [see Melbourne City Council, Carlton Residents Association Inc and National Trust (Vic) v Minister for Planning and Becton Corporation [2003] VCAT 1525; Melbourne Student Housing Accommodation v Whitehorse City Council and others [P404/2003 15 VPR 241] and Melbourne International Student Accommodation v Whitehorse City Council [2003] VCAT 1619.]

In those relatively recent cases the Tribunal has accepted car parking rates of between 0.1 and 0.25 car spaces as being acceptable. In the Melbourne International case in which car parking at 0.25 per bedroom was accepted, the Tribunal said:

63. I have no issue with the number of car spaces proposed to service the development as a student accommodation facility including options for visitor parking. I found the evidence of Mr Wilson of low or no vehicle ownership by international student occupants in like facilities to be persuasive. Moreover, his evidence is consistent with the empirical review undertaken by Mr Higgs and the findings of this Tribunal in other Applications involving accommodation primarily for international students ( eg. 141WR Pty Ltd v Stonnington CC and Ors [2002] VCAT 250).

64. Even if more students were based locally, rather than being from overseas, I am satisfied that the reduction of car parking sought by this Application is acceptable.

96 Given the proximity of the site to services and the railway, I accept Mr Higg's evidence. Even if there is some overspill, I am not persuaded that would cause an unreasonable impact locally.

97 Next I refer to the adequacy of turning areas. The Council's submission expressed concern about this matter given the width of the lane and position of columns. Mr Newman and others referred to additional matters, such as the position of a sewerage vent, the potential for sightlines to be blocked and the probability of delays in the laneway given turning difficulties.

98 Mr Higg's evidence was that the parking layout is acceptable and workable, taking into account the Scheme's requirements, the laneway configuration and location of the sewer vent. I accept that evidence. I note that Mr Higgs did not consider a mirror in the laneway as essential to assist with sightlines but he felt it would be reasonable to provide. That involves attaching a mirror to other property and is a matter Council could pursue.

99 Traffic issues were not raised by the Council, Mr Crowder stating that the Council did not believe that the proposal would unduly burden the laneway or surrounding street network. The use of the laneway to access the parking area, rather than a direct access from Auburn Road, was a matter raised by some residents and I note that Clause 22.04 encourages access direct from the Road 1 Zone for institutional and high intensity community uses.

100 In my view, reliance on the public laneway is acceptable and sensible given that the site is on the corner of the lane not mid-block along the lane. That minimises the extent to which vehicle use would intrude on adjacent properties.

101 A number of other matters were raised in submissions, on which I briefly as follows:

* Tree protection - the protection of trees on adjacent properties is important and I intend including conditions requiring the protection of trees on adjacent sites (being primarily No. 95 Liddiard Street and the reserve to the south). I will also require an arborist report to be prepared in relation to trees on No. 95 Liddiard Street (being aware that a report exists in relation to the reserve) so that any minor changes required to the development can be made to ensure the protection of vegetation on the adjacent site.

* Drainage - Ms Gunnersen raised concern about the potential for water accumulation within the courtyards and questioned whether they can be properly drained being mindful of recent heavy downfalls. Drainage matters are appropriately addressed through the conditions set out by the Council and service authorities. If there are more general problems associated with drainage in the area, they are necessarily a responsibility of the Council.

* Reflectivity of glazing - This is a matter that can be addressed by way of a permit condition relating to materials and finishes wherein the Council can be satisfied that glazed elements (such the stairwell) would not cause excessive reflectivity to distract motorists in Rathmines Road and Auburn Road.

* Plant and equipment - This is a matter that can be addressed through permit conditions wherein the location of plant and equipment is identified on the plans.

* Construction impacts - The potential for access to be obstructed during construction was a further issue. As raised at the Hearing, I consider that a construction management plan would give a level of comfort to users of the laneway that the lane would remain available for public use. I intend including it as a condition.

* Construction hours - Ms di Carlo submitted that the proposed hours for construction should be confined to 8am to 5pm on weekdays, a matter strongly opposed by Mr Southall. I am not persuaded that it is reasonable to limit the hours in that way and adopt the hours nominated by the Council in its draft conditions.

* Devaluation of properties - There is no evidence in support of decreased property values and I can not rule in favour of such an objection. The matters which determine the final outcome of this Application for Review are based on planning considerations.

102 For the above reasons, I conclude that the Application for Review should be allowed. I will therefore direct that a permit issue, subject to conditions.