1 Before the development starts, plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be in accordance with the plans by Metaxas Architects Pty Ltd Nos. TP2.01, TP2.02, TP2.03, TP2.04, TP3.01, all Revision A dated 21 March 2005, but modified to show :

a

the provision of bicycle parking 1.2 metres above finished floor level abutting those car spaces which abut either an internal or external wall in the ground floor car park to the satisfaction of the responsible authority;

b

the provision of suitable screening measures to a minimum height of 1.7 metres above finished floor level for the balconies to dwellings 2.04 and 2.05, which screens must be provided to the satisfaction of the responsible authority to the extent necessary to completely prevent overlooking into the private open space of the open deck at first floor level at the rear of No. 24 Grattan Street;

c

plan notations indicating a minimum head clearance of 2.2 metres to the car parking area;

d

minimum ground floor level of 13.7 metres to Australian Height Datum;

e

a replacement public light on the east elevation of the new building at the owner's cost, which light must be baffled for the occupants above ground floor level and provide security light for occupants of these dwellings to the car park apron and car park accessway along Hinton Lane.

f

a reoriented car park layout with access taken through car spaces 6 and 10 on figures 7, 9 and 10 in the D J Hancox/TTM Consulting Pty Ltd expert witness statement dated February 2006 provided:

i

the former access aisle is converted to two car parking spaces;

ii

eight car parking spaces are provided in the basement with as many as possible at three metre widths;

iii

the centre access aisle is maintained at or as close to 6.65 metres width if at all possible;

iv

storage space is provided at the end of each car space to the satisfaction of the responsible authority;

v

the internal columns are located 250mm from the end of internal spaces;

all to the satisfaction of the responsible authority.

2 The development allowed by this permit and shown on the drawings endorsed to accompany the permit shall not be amended for any reason without the written consent of the responsible authority.

3 All service connections for the new development must be provided directly from Porter Street, unless otherwise approved by council.

4 A replacement public light at the permit holder's cost must be provided for occupants of these dwellings on the east elevation of the new building, which light must be baffled for the occupants above ground floor level and must provide security light to the car park apron and car park accessway along Hinton Lane.

5 Reticulated electricity and other services must be provided underground to the subject land and all buildings on the land, to the satisfaction of the responsible authority.

6 With the exception of the office component, all waste collection to the development must be carried out by a private contractor, with no refuse or recycling bins or receptacles put outside the curtilage of the building for collection.

7 This permit will expire if one of the following circumstances applies:

i

The development and use is not started within two years of the date of this permit.

ii

The development is not completed within four years of the date of this permit.

The responsible authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

Mr P Connor by direct brief. Mr Connor called the following expert witnesses to give evidence:

•

Mr Stuart McGurn, town planner, Fulcrum Town Planners

•

Mr Damien Hancox, traffic engineer, TTM Consulting

Mrs Jane Tait, consultant planner for City of Stonnington.

1 This land lies at the fringe of the Chapel Street Principal Activity Centre in a Business 2 zone and approximately 200 metres from a train station and the Chapel Street tram and Commercial Road bus and tram. In short, it lies in the part of a locale into which mixed use residential and commercial development is being directed by the State and local governments.

2 Porter Street Prahran is a one-way street leading from Commercial Road to High Street with the subject site lying opposite the railway track. A new three storey plus rooftop deck has been built on its eastern side with remnant warehousing and industry to its north towards Commercial Road.

3 The subject land is zoned Business 2 with a Special Building Overlay for flooding purposes affecting the very rear of the subject land where the four garages are proposed direct onto Hinton Lane.

4 The permit applicant discovered that the Hancox traffic report was not circulated in accordance with the Tribunal's Practice Note, and was only circulated at the hearing. Council and the objector had an opportunity to look at the report over the lunch hour, which report was largely similar to the traffic report lodged with the application and on council's file. Both parties agreed that there was no need to adjourn the hearing and list another day for cross-examination, as there was adequate time to address questions to Mr Hancox. As matters eventuated by the end of the hearing, Mr Hancox recommended an alternate car park layout, which will have to be discussed with, and be to the satisfaction of, council's traffic engineers.

5 Mr Connor for the permit applicant advised that although Mr Louey, the objector, has a right of review in respect of the application for residential use in this Business 2 zone, the same zone exempts applications for buildings and works from notice and review pursuant to clause 34.02-4.

6 The developer wishes to build a four storey medium density development comprising an office with a dedicated car space and garbage and storage facilities on the ground floor and entry to apartments at first and second floor levels. Six apartments are proposed for each of the first and second floors but two of the second floor apartments are proposed to be double storey with their top storey on the third floor or fourth level being a second bedroom with ensuite.

7 That fourth level is set back from the Porter Street frontage 9.310 metres, from the Hinton Lane rearage 9.490 metres, from the southern boundary to the adjoining medium density building 5.086 metres and from the abutting brick warehouses to the north 5.104 metres.

8 Out of the twelve apartments at first and second floor levels, two are one bedroom units and the balance is two bedroom units. Twelve car spaces are proposed for these twelve apartments with the ground level car park also catering for garbage bin storage, bicycle storage and additional apartment storage in cupboards.

9 Other than the dedicated car space for the office fronting Porter Street, all other twelve spaces are accessed from the rear via Hinton Lane East into Hinton Lane and then into car park. Out of the twelve spaces, four have enclosed garaging direct onto Hinton Lane with what is currently proposed as a dogleg access into the rest of the car park containing eight spaces.

10 The responsible authority highlighted three issues which prompted it to refuse a permit for the development. These issues were

i

the car park layout;

ii

non-provision of visitor car parking; and

iii

the internal amenity to the bedrooms of the centred units at first and second floor levels.

11 The objector had an issue with overlooking into his private open space plunge pool terrace at his first floor level, which private open space abuts Hinton Lane. Mr Louey was concerned with overlooking from the second floor balconies to units 2.04, 2.05 and possibly 2.06 and queried whether there would be any overlooking from the bedroom window to unit 2.05 at fourth floor level.

12 Units 1.02 and 1.05 as well as the first bedrooms of units 2.02 and 2.05 all rely on 'borrowed light' from the living room which faces a window and balcony to its respective street frontage. The bedroom, which has no direct access to a window, has sliding doors which can be opened or closed to allow light entry. These doors are 6.2 metres to the glass sliding doors of the balconies, which is an internal amenity that the Tribunal has found time and again to be acceptable in principal activity centre locations, inner city locations or locations designated for increased densities. This is even more so in this case where the proportion of bedrooms relying on borrowed light is only four out of twenty-two bedrooms. All other bedrooms in this development have light access from windows to lightwells or, at fourth floor level, large walls of glazing.

13 In addition, Mr Metaxas, the architect, has added skylights wherever possible to the bedrooms that enjoy lightwell entry, to increase light entry into the bedrooms.

14 Member Hewet in North and West Melbourne Association Inc v Melbourne City Council[1] succinctly summarised the issues applying to amenity from a borrowed light circumstance, and I agree with his analysis:

In the context of a proposal for a near central city mixed use, retail and residential apartment building, I do not think that it is either essential nor practical to require that all bedrooms in such a development enjoy access to natural daylight in order to achieve acceptable internal amenity standards. In forming a view as to what constitutes an acceptable standard, a level of judgement is obviously required and with respect to those dwelling units which do rely on some degree of borrowed light, my judgement in this matter is informed by the following considerations:

•

The reliance on borrowed light is limited to bedrooms only and the balance of the habitable rooms in all of the dwellings enjoy access to natural daylight.

•

The proportion of dwellings within the development which rely on borrowed light to a bedroom is 26%, which I do not regard as excessive.

•

The layout of the proposed dwellings includes the use of open splays with sliding and glazed panels to all bedrooms relying on borrowed light and this provides the opportunity for occupants to integrate the bedrooms into the living areas or to close them off from the living areas, depending on their own individual preferences and requirements. I consider this layout to be preferable to that of a "bedsit" apartment in which there is no opportunity to isolate the bedroom from the living areas, but which do not rely on borrowed light.

•

Each dwelling unit has access to (albeit small) external private open space in the form of a courtyard or balcony.

•

... 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. ... ... ... 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.

15 Given that this is a four storey development, ResCode's parking rate of one visitor space per five apartments does not apply to this proposal. Whereas clause 52.06 does apply, it seeks two spaces per apartment (irrespective of the number of bedrooms) as opposed to ResCode's one car space per one or two bedroom dwelling, with no addition for visitors.

16 A traffic survey conducted by Mr Damien Hancox of TTN Consulting, traffic engineer, along Porter Street between Commercial Road and Greville Street at various spot times and dates revealed that there was always some capacity available on-street for visitor car parking at each spot time surveyed but with low availability at 8.00pm and 9.00pm evenings.

17 Whereas the current warehouse on the subject site provides 90 degree angled parking off-street along the Porter Street frontage, the redevelopment of this warehouse with the proposed four storey development will reinstate the concrete footpath kerb and channel in front of the subject land. In turn this will add two on-street parking spaces which can be used for visitor parking. The only catch is that this section of Porter Street is currently designated as 'loading bay' only, but I envisage a situation where the council can be persuaded to convert the loading bay to shared use as a loading bay between 8.00am - 5.00pm and for unrestricted use thereafter, providing space for visitors in the evenings or after business hours.

18 Mr Stuart McGurn, town planner, in his evidence to me also pointed out clause 22.13 of the Stonnington Planning Scheme on 'parking policy'.

19 In particular clause 22.13-3 sets out council's policy that a responsible authority can consider a reduction in the parking required for a use if the proposal is for a change of use and waiving of up to three car spaces will facilitate residential development in commercial areas. This is a classic example of this type of change of use. An additional factor in waiving up to three car spaces is that public transport is available and will be used by residents or visitors to the site.

20 Even though ResCode does not strictly speaking apply, the three visitor parking spaces it generates are reasonably waived given the addition of two on-street car spaces where shared loading bay/visitor parking can be provided by council and given that this is in an area with such high public transport services. Additionally, given that this development locates itself in an area where higher densities are encouraged both by State and local government, it would be unreasonable to refuse this development based on failure to provide visitor parking on site.

21 Mr Louey attended the hearing to express his concerns. A sight line exercise was performed by Mr McGurn in respect of views obtained by a person standing in the bedroom window at fourth floor level in unit 2.05 which proved that given the setback distance of 9.49 metres of this window from the edge of the building, the view would be blocked by the building's roof.

22 However Mr Metaxas, the architect, confirmed that overlooking would occur within a nine metre distance from the balcony in unit 2.04 at second floor level as well as from a part of the balcony to unit 2.05 at second floor level. The distance from the balcony to unit 2.06 is greater than nine metres as well as being at an extremely oblique angle to Mr Louey's private open space deck and plunge pool.

23 It was also ascertained that overlooking at first floor level into Mr Louey's first floor level, private open space was an impossibility, given the high wall at first floor level of Mr Louey's own property.

24 Mr Metaxas sought a condition that would allow some flexibility in screening to the satisfaction of the responsible authority so that the entire balcony to units 2.04 and 2.05 did not need to be obscured to a height of 1.7 metres above finished floor level. I don't think this can be achieved in respect of unit 2.04 but am prepared to make this type of condition for unit 2.05's balcony.

25 The developer provides at least fourteen bicycle parking spaces which is at least four times as much as the planning scheme seeks. Mr Hancox confirmed that those bicycle racks shown between car spaces would hinder drivers or passengers opening their car doors. However those bicycle racks hung off the wall abutting car spaces would allow adequate room for the bicycle as well as people exiting their cars.

26 The delineated bin store shows room for five 240 litre garbage bins whereas council sought a storage area with minimum dimensions 3 by 2.4 metres holding double that amount. As the developer advised it would be providing private contractor garbage collection, I have kept the designated bin storage size. If a once weekly collection is inadequate to empty the amount of rubbish generated by these twelve apartments then the body corporate will have to engage the contractor on a bi-weekly basis.

27 I see it as an advantage that a private contractor collect the rubbish from this development, given the right of way Hinton Lane access to the car park and garbage bin store. If council's waste collection service was used, individual residents would have to wheel out the wheelie bins once a week, park them in front of the garage doors thus potentially blocking access to their occupants or otherwise blocking Hinton Lane. This could occur over a twenty-four hour period once a week. Therefore I find it far preferable that a contractor arrive at the building, enter the building to empty and replace the bins and depart the site without the bins ever leaving the bowels of the building.

28 I have also imposed a condition requiring all waste collection to be carried out by a private contractor, in accordance with the representation by the developer.

29 The Infrastructure Unit has made the following comments:

The site is subject to overland flow from the rear right-of-way (Hinton Lane) and the identified flood level is 13.65 AHD. The floor level of the habitable room, offices and storage areas must be 13.8 metres AHD.

30 Council's drainage engineer sought a minimum ground floor level of 13.8 metres to AHD. Firstly, the vast majority of the building is at an RL above 13.8 metres and secondly, the SBO only applies to the rear portion of the subject land, in the vicinity of the four garages fronting Hinton Lane.

31 The RL of the natural ground level at Hinton Lane is 13.39 and the developer has sloped the land up to the end of these four garages to RL 13.7. Given that the 13.8 was calculated on a worst case scenario, that the developer has elevated the apron and garages to cope with the RL 13:65 AHD flooding event and given that this is only a garage area for cars, it is my opinion that the design adequately covers the drainage engineer's concerns.

Public Lighting to the Rear of the Proposed Building

32 I have required the developer to provide lighting at the ground floor level fronting Hinton Lane, to provide security lighting for residents accessing the four garages fronting onto Hinton Lane and also the car park entry for the remaining eight spaces provided in the ground floor car park.

33 Part of council's motivation to refuse this permit was the consequence that if the central apartments were supplying borrowed light to the bedrooms were removed, that would generate less parking spaces in the ground floor car park and enable the widening of the car access ramp which is shown on the lodged plan as at the northern corner of the subject land.

34 A resident would need to do a dogleg turn to access this car park entry. In doing so the resident would likely traverse the apron to Mr Louey's property located between Mr Louey's garages and Hinton Lane east. This apron is private land, although on the Revision A plans the developer shows this apron as part of Hinton Lane East instead of belonging to Mr Louey's building at 24-25 Grattan Street, Prahran.

35 When Mr Damien Hancox gave evidence, he confirmed that rathe than the chicane entry to the northern accessway, the best option was to put the access aisle where proposed spaces 6 and 10 exist and rearrange the car park to substitute these two car spaces into the area currently occupied by the northern access ramp.

36 Car spaces 6 and 10 are not shown in the Metaxas lodged plans but are delineated in the TTM/Hancox traffic report submitted as an expert witness statement to this Tribunal.

37 I have included a permit condition where the responsible authority will supervise the reoriented car park layout, although Mr Hancox's evidence confirms that:

i

the 6.65 metre aisle is generous;

ii

the 4.9 by 3 metre wide spaces are very generous;

iii

the 2-2.78 metre apron in front of the four garages allows adequate turning room into Hinton Lane; and

iv

the 3.05 metre access aisle/ramp complies with the planning scheme;

v

the storage spaces provided in each car space, combined with the storage cupboards on each balcony are adequate storage for these small apartments;

vi

columns to the internal parking spaces be indented 250mm from the end of each internal space, to permit the swept path of vehicles to avoid being damaged by the building of columns.

38 Given the adjustment through permit conditions of the car park layout and privacy screens, it is my opinion that the developer has proposed a well designed, well thought through medium density, mixed use office and residential building for this Principal Activity Centre location highly serviced by public transport.

[1] North and West Melbourne Association Inc v Melbourne City Council [2002] VCAT 485 (29 July 2002)