With respect to planning permit application no. PP04/1391, the Responsible Authority's decision to refuse the grant of a permit is set aside.

A permit is granted for the development of a 3 level building, the use of the site for dwellings, reduction in car parking and alterations to access to a road within a Road Zone category 1 in accordance with the endorsed plans at 976 Riversdale Road Surrey Hills.

Amended Plans Required

1 Before the 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 identified as drawing numbers 0410 -121 Sheets 1 of 10 Revision A, 2 of 10 Revision A, 3 of 10 revision A and 4 of 10 Revision B, all dated 15 June 2005, but modified to show:

a

The redesign of the landscaping adjacent to "office 1" so that it extends at a single level to the west boundary; with a minimum soil depth of 500mm; the height of the wall of the wall on the west boundary not to exceed 96.72 AHD and a minimum clearance of 2.2 metres to be maintained within the basement and its entry.

b

The provision of a 3m by 1m light court adjacent to bedroom 2 in Apartment 3 to provide daylight from windows to both bedrooms 1 and 2 of that apartment.

c

Details showing compliance with the requirements of conditions 9, 10 and 14.

2 If required by the Responsible Authority, the permit applicant or the owner of the site must provide street trees in Riversdale Road and Warrigal Road to the satisfaction of the Responsible Authority and Vicroads.

3 Except with the further consent of the Responsible Authority, before the development starts, a landscape plan generally in accordance with the plan prepared by John Patrick identified as drawing no. 05-112 TP must be prepared to the satisfaction of the Responsible Authority. The plan must be 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 area(s) set aside for landscaping;

(c)

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;

(d)

Planting required by any other condition of this permit;

(e)

Paving, retaining walls, fence design details, and other landscape works including areas of cut and fill and finished site levels;

(f)

Provision of street trees, if required by the Responsible Authority , and

(g)

Provision of an irrigation system.

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

4 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.

5 All landscaping works shown on the endorsed landscape plans must be maintained to the satisfaction of the Responsible Authority.

6 Access to the basement car park must be maintained to allow for visitor parking during the business hours when the offices are open to the public, to the satisfaction of the Responsible Authority.

7 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 except with the prior written consent of the Responsible Authority.

8 The applicant must undertake to engage a licensed surveyor to prepare a Plan of Subdivision showing the affected land on the eastern property boundary (enveloping the nature strip in Warrigal Road) labelled "ROAD" to be vested in the Roads Corporation upon certification of the Plan of Subdivision without any encumbrances. Subsequent to the registration of the plan, the subdivider must ensure that the original Certificates of Title that issue in the name of the Roads Corporation are forwarded to the Roads Corporation.

9 The edges of the vehicular crossover shall be angled at 60 degrees to the road reserve boundary, to improve entry and exit conditions.

10 The applicant will splay and/or make the walls adjacent to the vehicular access, of such height that maximises the sight lines to passing vehicles and pedestrians to the satisfaction of the Responsible Authority.

11 Any redundant vehicular crossovers shall be removed and the footpath, nature strip and kerbing reinstated to the satisfaction of the Responsible Authority.

12 All car parking spaces shall be designed to allow for all vehicles to drive forwards when both entering and leaving the property.

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

14 As part of the functional layout plans, the applicant must submit a written confirmation that sight distance requirements are in accordance with AUSTROADS Traffic Engineering Guidelines Part 5, Chapter 5 is provided.

15 A soil contamination report is to be submitted to the satisfaction of the Responsible Authority, outlining the likelihood of any contamination within the site having any adverse impacts on future uses. The report must outline any remediation works necessary in order to make the site suitable for the future uses and must have regard to clause 15.06 of the Boroondara Planning Scheme.

Driveways and Car Parking areas to be constructed

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

a

Constructed;

b

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

c

Surfaced with an all weather seal coat;

d

Line marked to indicate each car space;

e

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

to the satisfaction of the Responsible Authority.

17 Car spaces, access lanes and driveways shown on the endorsed plan must not be used for any other purpose, to the satisfaction of the Responsible Authority.

18 All loading and unloading of' vehicles must be carried out within the boundaries of the land, to the satisfaction of the Responsible Authority.

19 The land must be drained to the satisfaction of the Responsible Authority and all drainage works must be completed prior to the completion of the development approved under this permit.

20 Stormwater drains must be connected to a legal point of discharge approved by the Responsible Authority. Drainage connections within a road reserve must be to Council's standards. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.

21 No plant, equipment, air-conditioning or cooling units, services or architectural features other than those shown on the endorsed plan are permitted above the roof level of or external to the approved building/s without the prior written consent of the Responsible Authority.

22 All bins and receptacles used for the collection and storage of garbage, bottles and other wastes must be kept in a storage area to the satisfaction of the Responsible Authority. This storage area must be:

a

properly paved and drained to a legal point of discharge;

b

screened from view with a suitably designed enclosure;

c

supplied with adequate hot and cold water; and

d

maintained in a clean and tidy condition flee from offensive odours;

to the satisfaction of the Responsible Authority.

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

a

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

b

appearance of any building, works, stored goods, service yard areas or materials;

c

emission of noise, artificial light, vibration, smell, fumes, smoke, steam, soot, ash, dust, waste water, waste products or oil.

to the satisfaction of the Responsible Authority.

24 All security alarms or similar devices installed on the land must be of a silent type approved by the Standards Association of Australia and must be connected to a registered security service.

25 Noise from the premises must not exceed limits prescribed by the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1, to the satisfaction of the Responsible Authority.

a

The development 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.

The Responsible Authority is directed to issue a permit in accordance with this order.

Mr R Rogalsky, Planning Consultant appeared for Rockerfeller Investments Pty Ltd.

Dr L Fusinato appeared on his own behalf and on behalf of Mrs S Fusinato; Lady Dulcie Hickman; Ms H Sawyer; and Mr J Buin and other co signatories at 971 and 970 Riversdale Road.

1 This was an application under Section 77 of the Planning and Environment Act 1987 against a decision by the Boroondara City Council [the council] to refuse the grant of a permit for the construction of a multi-storey building containing offices and dwellings over basement car parking on land at 976 Riversdale Road Surrey Hills [the site]. The permit application number is PP04/1391.

2 The permit application was lodged with the council on 22 December 2004. The application sought permission for the construction of a 3-storey building providing for 2 levels of office space and 4 dwellings within an additional level over basement car parking. On the 31 March 2005, the council decided to refuse the grant of a permit on 6 grounds. The grounds of refusal relate to matters of neighbourhood character [scale, massing and height; inadequate setbacks and landscaping]; inconsistency with the policy at clause 22.08, and inadequacies associated with the car park layout and vehicle access.[1]

3 The application for review was filed on the 18 April 2005. The applicant was directed to give notice of the application for review under Section 83B of the Planning and Environment Act 1987. The respondent objectors who appeared and/or were represented at the hearing have filed statements of grounds setting out the basis upon which they oppose the grant of a permit. The statements of grounds also raise concerns with respect to neighbourhood character issues [height, scale and bulk; inadequate setback and landscaping]; adverse amenity impacts [noise, traffic and parking] and contrary to the policy at clause 22.08.

4 The subject site is located on the southwest corner of the Riversdale Road/ Warrigal Road intersection in Surrey Hills. The site is rectangular in shape with a frontage width of 34.75 metres to Riversdale Road and a depth of 22.56 metres along its west boundary. The site has an overall area of about 784 square metres.[2] The site is reasonably flat; however, it falls towards both the northwest and southeast corners. Further, it is relevant to note that there is a reasonably significant change in levels along the site's western boundary and at the southwest corner with the ground level of the 2 adjoining properties being about 2 metres lower. The site was previously used as a petrol station, a use that ceased just over a year ago. The site is currently vacant.

5 The site comprises the northernmost of a small group of commercial properties on Warrigal Road. Two double-storey buildings that are used for the purposes of a flag/flag pole supplier; massage school and offices exist on the properties immediately to the south of the site. These buildings are setback about 3 metres from the line of the footpath adjacent to the site to provide 2 indented kerbside parking bays. Access to car parking on these 2 properties is via a laneway that extends from Warrigal Road adjacent to the southernmost building and then doglegs at 90 degrees northward up to the site's southwest corner. This is one of the locations where the difference in levels between the site and the adjacent properties can be appreciated.

6 A single storey brick dwelling exists on the adjoining property to the west whilst double and single storey dwellings exist opposite on the north side of Riversdale Road. Wattle Park exists directly to the east. Riversdale Road and Warrigal Road are main arterial roads with about 50,000 vehicles passing through the intersection daily.

7 At the commencement of the hearing, Mr Peake applied to amend the permit application by substituting amended plans and changing the description of the permission being sought to include references to buildings and works, a reduction in car parking and alterations to the access to a road within the Road Zone - Category 1. The other parties offered no objection to the amendments. I allowed the amendments under clause 64 in schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

8 The proposal, as amended, involves the construction of a new 3 level to be used for offices, apartments and car parking.

9 Twenty-eight car parking spaces are to be provided within the basement level[3], 8 of which are in tandem without direct access. Access to the basement would be from a ramp extending down from Riversdale Road at the site's northwest corner.

10 The ground floor level of the building is to be divided into 5 office tenancies fronting Riversdale Road. Total office area measures about 568 square metres. The ground floor level offices are setback between 2.5-3 metres off the Riversdale Road frontage to provide for a pedestrian concourse and landscaping; however, the setback increases substantially at the western end of the site over the ramp leading down to the basement. Part of the ground level is to be constructed to the footpath alignment along Warrigal Road with a 1metre setback provided along the balance of the façade. Given the extent of the proposed basement level, most of the proposed landscaping within the setbacks is to be provided in raised planters.

11 The first floor level of the building is to be divided into 4, 2-bedroom apartment style dwellings ranging in size from about 115 square metres to 135 square metres. Private open space for the apartments is to be provided in the form of balconies. The upper level has been designed to step back from the line of the ground floor at the northeast corner and at the western end of the building.

12 Under the planning scheme, the site and the 2 commercial properties to the south are located within the Business 2 zone whilst surrounding dwellings are within the Residential 1 zone. Riversdale Road and Warrigal Road are both within the Road Zone - Category 1. There are no overlay controls.

13 Under the Business 2 zone provisions, "office" is a "no permit required" use; however, a permit is required to use the land for the purpose of "dwelling". A permit is also required under the zone controls for buildings and works.

14 Car parking requirements are set out at clause 52.06. Pursuant to clause 52.06-1, a use must not commence unless car parking is provided in accordance with the requirements set out in the table to clause 52.06-5. However, a permit can be granted to reduce or waive the parking requirements.

15 A permit is also required under clause 52.29 to alter access to a road in a Road Zone Category 1. An application must be referred to Vicroads.

16 Other relevant decision guidelines are at clause 65. These require that consideration be given to a range of factors including the planning scheme's policy frameworks, the purpose of the zone, orderly planning and the impact on amenity.

17 There is a raft of planning policies that are in some way applicable to the consideration of this proposal. I will refer to the scheme's policies as appropriate.

18 After having considered the submissions and evidence, the details of the proposal and the relevant matters under the planning scheme and legislation, it seems to me that the key issues in this matter are whether street setbacks and landscaping proposed are acceptable; adequacy of car parking; traffic impacts; noise and the suitability of daylight to the bedrooms in one of the apartments.

19 Whilst these are the key issues, I consider it appropriate to make some observations about other matters that are relevant to the consideration of the merits of the proposal as a whole.

20 First, there was no real dispute that the subject site presents an opportunity for an appropriately designed mixed use building. Although the site is not very large, it is located on a corner of a busy intersection and adjacent to commercial uses. Although the area to the north and west is residential, the site directly adjoins only 1 residential property. Further the site is not subject to any insurmountable constraints. For example, the buildings associated with the previous petrol station are of no particular significance or value; there is no vegetation to consider given that the site is paved or built on and there was no indication that soil contamination or other environmental issues associated with the previous use cannot be dealt with.

21 Second, the site has been included by the council within the Business 2 zone. The proposed building is to be partly used for a purpose that is "as of right". Further, the upper level of the building is to be used for apartments, a use that Mr Templar conceded is appropriate. In general terms, it would be fair to say that there was no substantive dispute about the appropriateness of the proposed uses.

22 Third, the site and its immediate neighbours have been included within the Business 2 zone to create what could be reasonably described as a small commercial "island". This is of significance given that the zoning is one of the tools available to the council to implement the strategies set out in the MSS. In this regard I note that the objectives at clause 21.08-3 seek outcomes that contribute to the provision of local employment and to "encourage office and other commercial development within the city". Strategies to achieve these objectives include accommodating new office development in designated areas within the city. The MSS also makes it clear that the Business 2 zone is to be applied in areas where office development is encouraged.

23 I accept that the site is not located within a Major Activity Centre under Melbourne 2030 or one of the higher order commercial centres under Boroondara's MSS. However, what also needs to be recognised that the proposal is far from being a major office development. It is an office development that can reasonably be said to be at the smaller end of the scale given that a relatively modest office floor area is proposed. I would have thought that the provision of office use at about this scale would have been in line with what could be reasonably expected in a small commercial centre like this.

24 Fourth, Mr Templar conceded that the changes to the plans have overcome some of the council's concerns with the proposal. In particular, Mr Templar said that the council would no longer contest the matters set out in grounds of refusal 1, 2 and 6. These grounds of refusal relate primarily to concerns about the scale, massing and height of the proposal and its compatibility with the surrounding area as well as the car parking layout and access arrangements. The reduction in building height, arising from the deletion of 1 level and the lowering of the ground floor level[4], results in a 2 storey building being presented to both Riversdale Road and Warrigal Road. In the context of an urban area where double storey buildings are not uncommon, the height of the building is compatible with surrounding development.

25 In relation to the access arrangements, Mr Tsongos advised that the changes required by Vicroads have been shown on the amended plans. Vicroads considers that the access arrangements to Riversdale Road, particularly with respect to the ramp design, grades and sight distance to be acceptable.

26 Fifth, during the course of the hearing Mr Peake indicated that the permit applicant would be willing to modify the design of the western side of the proposed building to address concerns raised by Mr Rogalsky who represented the owners of the adjoining residential property as well as those of the commercial properties to the south. In particular, Mr Peake said that the landscaping to the west of "office 1" could be widened so that it extends to the side boundary. The landscaping would be set within 500mm of soil with the height of the boundary wall raised by no more than about 100mm[5]. Mr Rogalsky indicated that this change would result in an acceptable interface with the residential property to the west. It was agreed that this change to the plans could be implemented by permit conditions.

27 I now turn to the key issues in dispute.

28 Mr Templar submitted that the proposed development has not been designed to be respectful of the surrounding area, specifically on the grounds that the setbacks to Riversdale Road and Warrigal Road are inadequate and that insufficient opportunity exists to provide for meaningful landscaping.

29 In relation to Riversdale Road, Mr Templar submitted that whilst it would be unreasonable to provide a 9 metres setback to match that of the dwelling to the west, nonetheless a setback of 6 metres would be appropriate, essentially so that the a greater degree of landscaping could be provided. With respect to the site's Warrigal Road frontage, Mr Templar submitted that the building should be setback 3 metres from the footpath alignment so that the building would follow the line of the 2 commercial buildings to the south.

30 Mr Rogalsky and the other objectors supported these submissions.

31 Mr Baulch expressed the view that the provision of setbacks ranging between 2.5 to 3 metres is appropriate along Riversdale Road. Mr Baulch said that whilst the adjoining property to the west has a 9 metre setback, it would be unreasonable to expect that a building on a commercial site should be designed to reflect residential setbacks. He added that the adoption of such an approach on this site would result in an underdevelopment. With respect to the setback to Warrigal Road, Mr Baulch expressed the view that the streetscape is more robust in character in that the site adjoins 2 commercial buildings both of which do not provide for landscaping. Mr Baulch acknowledged that the proposed building would be forward of those on the properties to the south, nonetheless, he did not regard this as being unacceptable given the commercial context of the zoning.

32 Interface issues between properties located within different zones can be problematic. On the one hand, it is reasonable for land to be used for a purpose that is specifically contemplated in the zone and for the development form to reflect that purpose. On the other hand, a proposal on site positioned at the zone boundary should also be designed taking into the sensitivity of adjacent properties and the surrounding area unless there is a policy or strategic reason for this not to occur.

33 In coming to terms with whether the proposal presents an acceptable interface with the surrounding residential area I refer to and express my agreement with the comments by Member Keaney in Buckerfield Architects v Boroondara CC [2004] VCAT 659 when he said:

19. I refer back to my earlier comments about the appropriateness of using this site for a commercial building and the inevitability of such an outcome given the zoning of the land and the strategic direction in the MSS. I agree with Mr Bisset that in an interface situation such as this there are competing objectives on either side of the residential / commercial divide and that a proper planning outcome is one which balances those competing objectives taking into account all of the opportunities and constraints of the site and its neighbours. Inevitably compromises will have to be made to reach an acceptable outcome which satisfies those competing objectives. The commercial site cannot ignore that they have a residential abuttal; nor can a residential property expect the sort of residential amenity one would anticipate in an area wholly zoned for residential purposes.

20 I approach the task therefore of the interface issue not with a view to achieving a perfect residential amenity outcome; nor a perfect commercial outcome. If it were that simple I could favour one over the other and (say) allow a box like office building on the boundary with extensive windows as might be found in a wholly commercial area. Or I could favour a one storey commercial building well offset from the boundary with a "forest" as a buffer in deference to residential amenity. Rather, I must look for a balance which satisfies the "reasonable expectations" of all parties.

34 Similar principles can be applied to the issue of neighbourhood character and street setbacks. In my view, the proposition put forward by Mr Templar that there should be a 6 metre setback across this site's Riversdale Road frontage is unreasonable. This type of setback would perhaps be supportable if the site were within a Residential zone, however, it seems to me that the council has made a conscious strategic decision to include the site within a business zone and expectations of the development form outcome must anticipate not simply a commercial building form, but a corresponding level of development intensity. In my view, the position put forward by Mr Templar does not seek to achieve a reasonable balance; rather, it requires the commercial development to defer substantially to the residential streetscape.

35 This site is located on a busy intersection of 2 main roads, abutting commercial development at its southern interface with only 1 direct abuttal with a residential property. Other dwellings and the parkland to the east are "buffered" by the width of the intersecting roads. In my view, the proposed setback to Riversdale Road is reasonable having to this context. In particular, the approach taken is to provide a 2.5 to 3 metre wide forecourt along most of the site's frontage, with the setback increased substantially at the western end of the building over the ramp area. It should also be noted that at the northwest corner and along the west elevation, the upper level has been recessed further back away from the ground level. This contributes to the sense of transition from that part of the site adjacent to Warrigal Road where more intense development could reasonably be expected down towards the site's only direct residential interface to the west.

36 As for the adequacy of landscaping opportunities, this must also be considered in light of the zoning and site context with reasonable expectations formed as to the type of development to be anticipated. In my view, the landscaping proposal put forward by Mr Patrick is reasonable and appropriate for this building. Mr Patrick's plan includes the provision of street tree planting. Ultimately, it will be up to the council and Vicroads to decide on the form and location of such planting. If the council and Vicroads agree, I would not see the applicant's proposal to provide new street trees as being inappropriate given the commercial zoning of the site. This requirement can be included by way of permit condition.

37 In relation to Warrigal Road setback, I have not been persuaded that the 2 shops to the south set a benchmark that must be followed on this site. The commercial buildings to the south are setback; however, this area is used for parking not landscaping. It is a design approach that reflects a past practice in terms of parking provision at the front of commercial premises. If the setback area were landscaped, my view would be different; however, in the circumstances, I do not regard the proposed building having a relative strong built form interface with Warrigal Road as being inappropriate on a site located at this intersection.

38 The objectives of the policy at clause 22.08 include:

To ensure that the form of new office development contributes in a positive manner to the overall character and amenity of commercial and surrounding residential areas.

39 In my view, the form of the new building would make a positive contribution to the overall character of the area. The site has been used for many years as a service station with substantial hard paved surfaces and no landscaping. That development could not be said to be attractive. The proposal involves a new building with articulated facades; a height that is compatible with the surrounding commercial and residential development and a form that allows for appropriate transition along the streetscape whilst still allowing for a more intense building form that will mark the commercially zoned corner of the intersection. Bearing in mind that the zoning contemplates a commercial building form, I consider that the proposal would make a positive contribution.

40 I have not been persuaded that the extent of development or the site coverage is excessive. High site coverage should be anticipated in this type of situation.

41 Subject to some relatively minor changes to the landscaping to the west as discussed above, I consider that the form of the development is acceptable.

42 Next I turn to the adequacy of the car parking to be provided. Under the provisions of clause 52.06, a total of 28 car parking spaces are required[6]. The proposal provides the required number of car spaces, although some of the spaces are in tandem. This is not unusual or unacceptable provided that such spaces are allocated to the occupiers of the same tenancy. Prudently, Mr Peake requested that permission be granted for a reduction in car parking to avoid a dispute as to whether permission is required for a reduction given the use of tandem spaces.

43 As for the provision of visitor parking, I note that it is proposed to leave the access door leading to the basement open during business hours to give visitors the opportunity to use vacant spaces. This can be included as a permit condition. Parking provision is acceptable.

44 The material before me does not support the view that the proposal would lead to traffic problems. Vicroads have not opposed the proposal subject to permit conditions. The applicant has already modified the proposal to meet some of the conditions and agreed to accept the others.

45 I would expect that the actual traffic generated by the proposed uses would be relatively modest, particularly compared to the previous service station use.

46 Although the site is located on a busy intersection, the access to the basement has been located at the furthest point away from it at the northwest corner. All vehicles would be able to enter and leave in a forward direction. The ramp and access arrangements are to Vicroads satisfaction. There was no evidence to support the view that there are sight distance problems.

47 I consider the traffic impacts to be acceptable.

48 Dr Fusinato submitted that the proposal would add to the noise experienced by surrounding residents. Dr Fusinato said that noise associated with existing traffic and trams is highly intrusive. He argued that although the proposed building facades were articulated, the panels are relatively flat and would facilitate traffic noise being reflected toward surrounding residential properties at much greater intensity than at present.

49 I have a great deal of difficulty accepting that this would be a valid basis for refusing the proposal or requiring changes. I accept that the traffic noise would be substantial at this intersection; however, there was nothing presented to show that the there would be an increase in the noise experiences at neighbouring properties or that the extent of the increase would be noticeable particularly given the distances involved. Further, there was nothing presented to show that any increase in setbacks or lowering of building height would result in any noticeable difference.

50 There was no material put forward to support the view that shadow impacts would be unreasonable or that the measures to be put in place to prevent unreasonable overlooking are not adequate.

51 I consider that the proposal would not result in unreasonable impacts on the amenity of surrounding properties.

52 Finally, I turn to the issue of whether it is appropriate for daylight to bedrooms to be solely available via v-lux windows. Apartment 3 is located adjacent to the site's southern boundary, adjacent to the northern wall of the building on the property to the south. The 2 bedrooms appurtenant to that apartment would rely on v-lux windows in the ceiling for daylight. This can be contrasted with the layout of the bedrooms to Apartment 4 which have access to a 3m by 1m light court. This enables both these rooms to be provided with windows that face out onto a small balcony with v-lux windows used to supplement daylight.

53 The distinction between the 2 layouts is that one allows for bedrooms with windows that provide for an outlook whilst the other does not. I see no reason why the layout of Apartment 3 could not be changed to provide for bedrooms facing out onto a light court, similar to the Apartment 4 arrangement. In my view, it is desirable to provide habitable room windows with some outlook, even into a limited space. I consider this to be a relatively minor change that can be implemented by permit conditions.

54 I have no difficulty with the use of v-lux windows to supplement daylight.

55 Having considered the issues of substance raised at the hearing and the other relevant matters, I have come to the conclusion that a permit should be granted. The amended proposal has resulted in the height, scale and mass of the building being substantially reduced. I consider the height and scale of the building to be acceptable given the site's context, the zoning and the design which allows for a reasonable transition towards the west. Adequate parking is provided. Traffic impacts are acceptable. I have not been persuaded that the proposal would not result in unreasonable amenity impacts on neighbouring properties. Subject to some minor changes, internal amenity of the apartments would be acceptable.

56 I will set aside the council's decision. A permit is granted.

[1] The grounds are set out in full in the "Refusal to Grant a Planning Permit" issued on 31 March 2005

[2] These dimensions refer to the actual 'site' on which the proposed development is to occur. The site is on a property that includes rhe footpath and nature strip area along Warrigal Road within the title boundaries. I have excluded the footpath and nature strip area from the 'site' as this area is to remain as footpath and nature strip and the applicant has agreed to transfer the ownership to the Roads Corporation [Vicroads].

[3] The lowest level of the building would be viewed as a basement from Riversdale Road; however, due to the sudden drop in levels between the site and adjacent properties to the west and south, the lowest level would be exposed well above the ground level of the adjoining properties.

[4] The lowering of the ground floor level was achieved because less headroom is required in the basement level as car stackers are no longer proposed as part of the car parking provision.

[5] The parties agreed that the boundary wall height would not be higher than 96.72 AHD.

[6] This assessment is based on 3.5 spaces per 100 square metres of office floor area and 2 spaces per dwelling.