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[2009] VCAT 367
appellant. The responsible authority's decision was set aside. The Tribunal required it to issue a permit for use and development of four-storey student accommodation above a basement car park, with a...
The Tribunal allowed a purpose-built student accommodation proposal near Monash University's Caulfield Campus, despite Council's objections. It did not treat the absence of the site from the local policy's preferred locations as decisive. It relied on the site's proximity to the university, public transport, a major activity centre and existing or proposed non-residential uses. It also accepted evidence that student accommodation nearby generated less parking demand than the general local policy rate suggested. The Tribunal considered the design in its surrounding context and used permit conditions to address management, waste, landscaping, occupancy and other operational matters. The decision concerns this proposal and site; it does not establish that similar development would be suitable elsewhere.
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Monash Gate Project Pty Ltd applied to Stonnington City Council for a permit for a four-storey student accommodation building at 949 Dandenong Road, Malvern East. The land was in a Residential 1 Zone, had no overlays, and abutted Dandenong Road, which was a Road Zone Category 1. The applicant sought review after Council did not determine the application within the prescribed time. The proceeding was brought under section 79 of the Planning and Environment Act 1987.
The proposal considered by the Tribunal was for 66 apartments, with a basement containing 12 car spaces. Vehicle access would be from a rear right-of-way via Moama Road, and the existing Dandenong Road vehicle access would be closed. The proposal also included a common room, laundry, external drying facilities and common outdoor space. Following the review application, amended plans added six apartments, provided basement parking, modified the building footprint and facade, and increased landscaping, particularly near the north-eastern rear interface.
Council maintained its opposition. Its concerns included overdevelopment, visual bulk, inadequate landscaping, conflict with clause 22.08, amenity effects, inadequate parking, internal layout and amenity, and insufficient information about parking, bicycles and refuse. The objector, Jennifer McNeilly, raised concerns about height, bulk, access, rubbish services, parking dispensation and overlooking, but did not appear at the hearing.
The setting was important to the Tribunal's assessment. The site was about 150 metres from Monash University's Caulfield Campus, opposite East Caulfield Reserve and about 400 metres from the Caulfield Major Activity Centre. A large Masonic Temple was next door to the north-west. A four-storey motel had a permit on the vacant site to the south-east. Dandenong Road carried substantial traffic, and the Tribunal noted nearby public transport connections.
The order substituted specified amended architectural plans, set aside the responsible authority's decision, and required Council to issue a permit for the use and development, the parking dispensation and deletion of the Dandenong Road access. The permit was subject to conditions in Appendix 1. Those conditions included landscape and waste plans, a student accommodation management plan, a 66-person occupancy limit, restrictions on who could reside in the accommodation, controls on parking spaces, and reinstatement of the former vehicle crossover.
The Tribunal's central approach was to assess the relevant planning objectives together and in the context of the site. It referred to clause 11 of the State section of the Planning Scheme, which calls on planning and responsible authorities to integrate relevant policies and balance conflicting objectives in favour of net community benefit and sustainable development. It also identified the purposes of the Residential 1 Zone, including a range of housing and respect for neighbourhood character.
Council's principal policy objection was that the site was not identified as a preferred location for student housing under clause 22.08. The Tribunal accepted that the policy was relevant, but did not read the preferred-location listing as an absolute prohibition. Its reasons state that the site's omission did not necessarily mean the use was inappropriate and that there needed to be good reason to depart from policy. It considered the policy's intent and wording, together with the relevant decision guidelines.
The location provided that site-specific justification in the Tribunal's view. The site was close to the university, had direct pedestrian connectivity, was near a major activity centre and had access to bus and train services. It was opposite a large reserve and situated between a prominent non-residential building and a site with a permitted non-residential motel. The Tribunal also considered that the proposal had been modified in response to the Council urban designer's concerns. It found these factors strongly supported the use, notwithstanding the absence of the site from the local preferred-location map or list.
Parking was another major issue. The proposal had 12 spaces. Council relied on its local policy allocation of 0.25 spaces. The applicant's traffic evidence referred to surveys indicating that student accommodation in the locality generated demand of about 0.12 spaces per room or bed. The Tribunal regarded those surveys as relevant and more accurate for this type of use than a general rate. It also considered nearby public transport and the activity centre. Importantly, it observed that the applicant's evidence had not been contradicted by a study for Council. It therefore concluded that providing more parking without evidence of demand would be wasteful. The Tribunal linked the more realistic assessment to State planning objectives concerning affordable housing near transport and services, and increased use of public transport.
On built form, the Tribunal rejected an assessment based only on generic setback concerns. It considered the amended plans and surrounding context, including the Masonic Lodge and the proposed motel. The amended design increased setbacks and landscaping at the more sensitive rear interface, and revised the facade. The Tribunal found the built form to be a reasonable transition between the larger building and the proposed motel. It considered the rear interface, including the right-of-way, and found no adverse amenity impact from the proposed setbacks.
The Tribunal addressed other concerns through conditions. For example, it required direct daylight access to the terrace adjoining Apartment 17, a waste management plan, and a management plan covering supervision, noise, waste, complaint contact details, student behaviour and emergency arrangements. It did not require a section 173 agreement. The reasons state that several matters could be addressed through permit conditions, that Council had not provided evidence of problems with existing student accommodation in Stonnington, and that the effectiveness of the agreement was in doubt.
This is a VCAT planning merits review decision, not a judgment establishing a generally binding rule of law. The document does not identify a change to legislation or declare a new legal test. Its significance in this record is its application of the Planning Scheme to a particular proposal and location.
Before the decision, the relevant local policy identified preferred locations for student accommodation, and Council argued that this site fell outside them. The Tribunal's reasoning shows how it treated that policy in this proceeding: it was an important consideration, but not necessarily exhaustive. The Tribunal balanced it against the policy's wording and intent, the State framework, the purposes of the zone, and the evidence about the particular location. It relied on the Panel material concerning Amendment C61, which said that preferred areas should not preclude other opportunities satisfying neighbourhood character, urban design, transport and activity-centre criteria.
The decision also illustrates the distinction between a general parking policy rate and an empirical assessment under clause 52.06-1. The Tribunal did not disregard the local rate. Rather, it treated the provision's decision guidelines, including empirical demand and transport access, as requiring a case-specific assessment. On the evidence before it, the lower surveyed demand was more persuasive than the general rate.
As to what changed after this case, the supplied judgment gives no later appellate decisions or subsequent treatment. It therefore cannot establish whether later courts or tribunals followed, limited or distinguished its reasoning. The decision should be described as an example of VCAT's approach on the facts before Member O'Leary, not as proof of the current state of Victorian planning law.
The paragraph numbering in the supplied text restarts under different headings rather than giving a clear continuous paragraph sequence. The references below identify the relevant reasons heading and its locally numbered paragraph where available.
The reasoning may be relevant to planning assessments involving student accommodation where the local policy identifies preferred locations but does not expressly rule out other sites. The features that mattered here included proximity to a university, transport access, nearby activity-centre services, an appropriate urban context, and evidence that the design addressed sensitive interfaces. The decision does not mean those features will be sufficient in every case. The Tribunal expressly said the proposal might not be appropriate in other residential precincts or other parts of Dandenong Road.
The parking analysis may be relevant where an applicant seeks a parking reduction for student accommodation and provides empirical demand evidence specific to the use and locality. The Tribunal relied on surveys concerning nearby accommodation, public transport accessibility and the lack of contrary study evidence from Council. The reasoning is therefore tied to the evidence available in this proceeding. A case with different demand data, transport conditions, evidence or planning provisions could be assessed differently.
The built-form discussion may assist in understanding a contextual planning assessment where nearby development is unusually large or non-residential, or where a permitted adjoining project changes the transition and interface conditions. Here, the Tribunal considered the Masonic Lodge, the permitted motel, Dandenong Road and the rear right-of-way, alongside the amended plans. It did not treat the surrounding context as eliminating the need to assess amenity: it examined the rear interface, setbacks, landscaping and terraces.
The decision also illustrates the role of permit conditions in addressing operational matters, including management, waste collection, noise and student occupancy. It does not establish that every management concern can be dealt with by permit conditions, or that a section 173 agreement is never appropriate. Its reasoning was based on the proposal's purpose-built form, the matters capable of being controlled by the permit, and the lack of evidence of existing local problems.
The supplied decision does not identify any later court or tribunal treatment of Monash Gate Project. It contains no later appellate history, subsequent citation analysis or later judgments. Accordingly, no reliable statement can be made from this source about whether the case was followed, distinguished, approved or limited.
The decision does refer to other VCAT material available at the hearing. The reasons say the parties tabled other decisions, and the footnotes identify P.D. & K. Corporation Pty Ltd v Stonnington CC [2008] VCAT 238, Karpidis Pty Ltd v Stonnington CC [2008] VCAT 1093 and Porter Street Pty Ltd v Stonnington CC [2008] VCAT 2134. The text gives no detailed account of their holdings, so they should not be treated here as establishing propositions beyond what this judgment itself says.
The Tribunal also referred to PD7K Corporation Pty Ltd v Stonnington CC [2008] VCAT 348, describing that student housing decision as reinforcing the appropriateness of the site. It referred to Karpidis in connection with the Panel material on Amendment C61. Those references show the context in which the Tribunal considered the proposal, but the supplied decision does not set out the full reasoning in those other matters.
The source does not provide subsequent treatment or the current text of the relevant planning provisions. It cannot establish whether clause 22.08, clause 52.06-1 or the broader policy framework has since changed, or how later decisions have interpreted them.
The parking conclusion depended on specific survey evidence and the absence of contrary evidence from Council. The judgment does not provide the underlying survey methodology, sample sizes or full data. It therefore does not answer how much weight similar evidence should receive where methods or results are disputed, or where parking demand is measured differently.
The decision also leaves open how to assess an unlisted site where the local policy's preferred-location criteria are not met, but the site's proximity to transport, activity centres or a university is weaker than in this case. The Tribunal gave substantial weight to the combination of contextual factors here, but did not prescribe a formula for balancing them.
Finally, the section 173 discussion is specific to this purpose-built proposal and the evidence before the Tribunal. The reasons suggest a different assessment might arise for a conversion or transitional use, but do not decide such a case. They also do not determine when a section 173 agreement would be necessary where a permit condition could not effectively secure a planning objective.
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Four storey student accommodation, Residential 1 Zone, Student Housing Policy, Adequacy of car parking, Building setbacks, Urban design proximity to Monash University, Site context
Monash Gate Project Pty Ltd v Stonnington CC [2009] VCAT 367
3. The conditions on the permit are contained in Appendix 1 to this decision.
Four storey student accommodation above a basement with parking dispensation
Cl. 32.01-6 (Buildings and works associated with a Section 2 use)
Cl. 32.29 (Alteration of access to a Road Zone Category 1)
Single storey detached dwelling with single width vehicle access to Dandenong Road
Mr Christopher Townshend SC with Mr Adrian Finanzio of Counsel. They called evidence from Ms Sophie Jordan, Town Planner and Mr Russell Fairlie, Traffic Engineer
Finally, while it is reasonable to highlight preferred areas in policy, the designation of these areas should not preclude other opportunities that satisfy neighbourhood character and urban design objectives, criteria relating to location relative to public transport and activity centres and residential development standards.(Tribunal emphasis)
To deliver more affordable housing close to jobs, transport and services".
Achieving greater use of public transport by increasing densities, maximizing the use of existing infrastructure and improving the viability of the public transport operation.
Locate a substantial proportion of new housing in or close to activity centres and other strategic redevelopment sites that offer good access to services and transport by:
One way to comply with this policy would be by providing an area, preferably at ground level of communal open space at a ratio of 2.5 square metres per bed and a maximum of two parcels and each parcel with a minimum dimension of 3 metres.
To ensure ongoing management arrangements are in place to enable the proper and appropriate use of student housing.
When approved, the plan will be endorsed and will then form part of the permit. Waste collection from the development must be in accordance with the plan, to the satisfaction of the Responsible Authority.
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.
[1] Details of these were provided in Mr Wong's detailed submission
[2] Clauses 12.01, 12.05, 14, 15.12, 16.02, 18.02, 19.03 and there are also the local planning policy framework including Clauses 21.01-2, 21.02-2, 21.03, 21.05, 22.02, 22.03 and 22.08
[3] • P.D. & K. Corporation Pty Ltd v Stonnington CC [2008] VCAT 238
• Karpidis Pty Ltd v Stonnington CC [2008] VCAT 1093
• Porter Street Pty Ltd v Stonnington CC [2008] VCAT 2134
[4] Refer to in more detail in Karpidis
[5] PD7K Corporation Pty Ltd v Stonnington CC[2008] VCAT 348
Monash Gate Project Pty Ltd
Stonnington CC [2009] VCAT 367
The responsible authority's decision was set aside. The Tribunal required it to issue a permit for use and development of four-storey student accommodation above a basement car park, with a car-parking dispensation and alteration involving deletion of access to a Road Zone Category 1, in accordance with substituted plans and subject to the conditions in Appendix 1.