Neometro Architects v Port Phillip CC & Ors [2002] VCAT 427

Condition identified as paragraph 3.2.1 (a) be amended by substituting all the words therein with the words "all the changes shown on the plans substituted by the Tribunal at its direction on the first day of the Review hearing and numbered 00084 - TP03E, TP04E, TP05F, TP13C and (incorrectly) dated February 2001.

A new condition to be added as follows "Prior to completion of development, the permit holder must to the satisfaction of the responsible authority make an arrangement for the relocation of the light presently mounted on the pole in the laneway to the north-west of the site, with alternatives including relocation of the pole or the provision of an alternative mounting point."

A new condition to be added as follows "Parking in Units 3 to 7 to be provided by means of the "Park 23" model scissor stacker manufactured by Eco and Park."

Mr. P Bissett, lawyer, of Minter Ellison, appeared for the permit applicant

Messrs. and Mesdames Brown, Baxter, Wheelahan, Czermak and Guthrie appeared for themselves.

Mr .J Rantino, lawyer, of Maddocks appeared for the Responsible Authority.

Mr. P Bissett, lawyer, of Minter Ellison, appeared for the permit applicant

Mr .J Rantino, lawyer, of Maddocks, appeared for the Responsible Authority.

1. Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit to construct two 2-storeyed dwellings, five three-storeyed dwellings and car parking dispensation for one on-site visitor car space.

2. At the commencement of the hearing, Mr. Bissett applied to substitute amended drawings for the permit application drawings. The parties to the hearing had been advised of this application to amend the drawings in accordance with the Tribunal's relevant Direction No. 1. After consulting with the parties present at the hearing, I directed that the amended drawings be substituted for the original permit application drawings.

Planning Scheme and Zoning/Overlay/Schedule Controls

4. Port Phillip Planning Scheme. Residential 1 Zone. Adjoining land opposite across Vautier Street and the adjoining laneway is in a business zone.

s The proposal is contrary to the objectives and policy of the Elwood Neighbourhood as identified in the Local Planning Policy Framework contained within the Port Phillip Planning Scheme.

s The proposal fails to satisfy the key objectives and criteria of Elements 3, 6 and 8 of the Good Design Guide.

s The proposed development is not in keeping with the scale, form and character of surrounding development and would not make a positive contribution to the area.

s The proposed car parking arrangements including access and provision of visitor car parking are not considered to be satisfactory.

s The proposed development would be detrimental to the amenity of the surrounding area.

s The proposed development is an overdevelopment of the site.

6. The grounds of the application for review are effectively a rebuttal of the grounds for refusal.

7. The land is situated at 3 Vautier Street, Elwood.

9. I have adopted Mr. Biles' description of the site and its locality, together with the description of the proposed development (following).

The review site is located on the south-east side of Vautier Street, approximately 40 metres (to the south-east of) the intersection of Vautier Street and Ormond Road in Elwood.

The site is regular in shape with a frontage of 15.24 metres to Vautier Street, a depth of approximately 40 metres, and a total site area of approximately (621) square metres. There is a slight fall towards the rear of the site of approximately 100mm. A 4.97 metre wide laneway extends between Ormond Esplanade and Ormond Road and abuts the rear boundary. An additional laneway with a width of 3.1 metres also runs along the north east boundary of the review site which connects with Vautier Street and the rear laneway.

The land is currently improved by a single storey rendered brick dwelling of inter-war period, which addresses Vautier Street. The dwelling comprises a pitched tiled roof and is setback between 9.2 metres and 11.4 metres from Vautier Street, approximately 1.2 metres from the north east boundary and approximately 2.4 metres from the south west boundary.

A carport is located in the front south-west corner of the site and is accessed via an existing crossover from Vautier Street. A small brick pier fence is located along the site's frontage to Vautier Street and a timber paling fence, which has a height of 1.85 metres is located along the north east (side) and south east (rear) boundaries. A brick fence to a height of 1.85 metres is located along the south-west boundary.

A number of medium sized trees are located to the front and rear yard of the review site and a large Plane Tree is located directly adjacent to the site in the front nature strip.

As outlined on the City of Port Phillip Neighbourhood Character Map, the dwelling on the review site is listed as 'contributory', but is located outside of the Heritage Overlay for this area.

The review site is located on the southern edge of the Elwood Village Local Shopping Centre and forms part of the residential hinterland of Elwood, which separates the commercial precinct of Elwood Village from Elwood Park and Elsternwick Park.

Located approximately 40 metres from the Elwood Village Local Shopping Centre and some 300 metres from Elwood Park and Elsternwick Park, the review site is well located in regard to surrounding infrastructure and recreational and shopping facilities. Both Elwood Park and Elsternwick Park include informal reserve areas, with the former comprising an-open grassed area used as a playing field, and the latter comprising walking and cycle paths and a public golf course. (See Figure 3 - Locality Plan).

Immediate access beyond the village centre is available with Bus Route 600 operating along Ormond Road and Bus Route 246 operating along Glen Huntly Road, and good access is available to the Elsternwick train station and the Brighton tramline.

The residential properties along Vautier Street comprise a mix of 1960's and 1970's medium density housing and single detached dwellings, with building heights that vary between 1 to 3 storeys. There is a range of architectural styles from pre and post war periods, along with a number of more recent contemporary medium density developments.

While there is a good representation of single detached homes, two and three storey apartment buildings are common to Vautier Street and as a consequence, there is no real consistency of character in terms of architecture, landscape, fencing style, building setbacks or building scale. The unifying features of the streetscape are the substantial street tree plantings in Vautier Street and the fact that most buildings are on regular frontages and are 3 storeys or less.

A number of the residential properties located to the southern end of Vautier Street are located in Heritage Overlay HO8, which covers the Elwood- Glenhuntly Road, Ormond Road Precinct..

This area is located on a low ridge providing views to open space and Port Phillip Bay from the southern ends of most streets, The predominant lot size is greater than 750 square metres and the street pattern is fairly consistent with rear lanes constructed in bluestone,

The area retains a limited number of large Victorian houses but has been largely developed during the inter-war period with detached dwellings and walk-up apartments, The area also has a limited number of more recent flats and houses,

The large lots occupied by single dwellings often have generous gardens however, privacy is reduced by the high proportion of two and three storey houses and flats.

Most streets are lined with Plane trees and this aspect together with the relatively rich and varied architectural style and scale are important factors contributing to the character of the area.

The area has excellent (good) access to open space, the foreshore and local shops and limited through traffic.

The abutting commercial precinct of Elwood Village is a typical, inner suburban local shopping centre, which is characterised by a mix of single, two and three storey development. Uses are primarily commercial in nature, providing a range of local convenience retailing and services. This commercial precinct has, in the last 10 years, undergone a quite significant transformation, with the introduction of a number of multi level mixed-use developments and new "cafe society" activities in the street.

In terms of adjoining land, the north east boundary of the review site directly abuts the service lane which runs along the rear boundaries of the adjacent commercial properties. The commercial properties, which have a frontage to Ormond Road, comprise a mix of 1 to 3 storey buildings. The commercial property (No. 90 Ormond Road) located on the corner of Ormond Road and Vautier Street comprises a two storey sandstone brick building which addresses both Ormond Road and Vautier Street. At its Vautier Street frontage, this neighbouring building is built to the front pavement line and comprises a rear concrete car parking area with a brick garage built along its south-west boundary. The car parking area is accessed via an existing crossover from Vautier Street.

The commercial property at No. 96 Ormond Road is currently being extended to include a new second and third level extension.

Adjoining the south-west boundary of the review site is No.5 Vautier Street, which comprises a two storey block of 1970s brick flats (5), with a pitched tiled roof. Setback 4.1 metres from its Vautier Street frontage, this apartment building is setback approximately 4.4 metres from the common boundary with the review site. Within this setback is a common pathway and a private garden area for the ground floor units which is screened by a timber paling fence and various trees and shrubs which have a height of up to 5 metres. Internal garages are located to the rear of this adjoining building, which are accessed from the rear laneway. Two additional tandem car parking spaces are located to the side of the building in the north-east corner of the site, accessed via a single crossover from Vautier Street.

......... a Notice of Decision (No.832/2001) was issued on the 12 November 2001 for the construction of alterations and additions to the existing two storey building, including the addition of a third storey (two additional units) and associated car parking at No.5 Vautier Street, Elwood. ...... an appeal against Council's Notice of Decision has been lodged with the Tribunal.

Directly opposite the review site, across Vautier Street, is a row of four, two storey townhouses, which have recently been constructed at No.2 Vautier Street, and a two storey detached dwelling which has also recently been constructed at No. 2A Vautier Street. Further south at No.4 Vautier Street is a single storey weatherboard dwelling with pitched tiled roof.

10. I have also adopted Mr. Biles' description of the proposed development.

"The proposal involves the demolition of the existing 'single storey dwelling and the construction of an apartment building comprising seven dwellings with associated landscaping and car parking facilities.

Setback 2.4 metres from Vautier Street, the front section of the building is of two storey construction and comprises Units 1 and 2 which both address Vautier Street and occupy each floor level. Unit 1 comprises a bedroom, en- suite / toilet and laundry at ground floor level and a second bedroom, toilet, terrace and open living room area and kitchen at first floor level. A single car garage is located to the rear of this unit at ground floor level and is accessed via the bluestone laneway, which runs along the north-east boundary of the site. Located adjacent to the garage is a rubbish bin storage area for Unit 1.

Unit 2 comprises two bedrooms, en-suite/powder room and laundry at ground floor level and an open plan living room / kitchen area, terrace and toilet at first floor level. A ground floor courtyard associated with Unit 2 is located off Bedroom 1 along the south-west boundary of the site and a single carport is located adjacent to Unit 2, with access from the existing single crossover on Vautier Street. A rubbish bin storage area for Unit 2 is located in the rear corner of the proposed carport.

Units 1 and 2 each have an individual pedestrian entry point from Vautier Street and a courtyard area within the front setback, contained behind the proposed cedar batten paling fence.

The rear section of the building is of three-storey construction and is setback 12.8 metres from Vautier Street and is built to the rear south-east boundary of the site. This component of the development comprises five dwellings, which occupy each floor level. At ground floor level, Units 3-6 comprise a single garage with a double car stacker, laundry, toilet, rubbish bin store, studio/home office and a courtyard. Unit 7 comprises a single garage with a double car stacker, a rubbish bin store and a studio / home office with an adjoining courtyard area. At first floor level the five dwellings comprise an open plan living room and kitchen area, a north facing terrace and a powder room. At second floor level Units 3-6 comprise two bedrooms and a bathroom, with Unit 7 comprising 1 bedroom and a bathroom.

Units 3-6 each have an individual pedestrian entry point located along the north-east facade of the building, accessed via a landscaped pedestrian walkway, which is to adjoin the existing bluestone laneway. The proposed garages for Units 3-7 are accessed from the existing bluestone laneway which runs along the north-west boundary of the site. Internal access from each of the proposed garages is provided to its corresponding unit. A visitor car parking space is located in the rear south-east corner of the site and is accessed via the right-of-way, which runs along the south-east boundary of the site.

The two-storey component of the proposed development has a total building height of 6.6 metres, with the three storey component having a building height of 9.4 metres. At ground and first floor levels, the side wall of Unit 1 is built to the north-east boundary for a length of 5.8 and 6.570 metres respectively. The remaining sections of wall along this elevation are setback between 2.5 metres and 1.9 metres at ground level, 1.9 metres at first floor level, with each of the five terraces built to the boundary, and 1.2 metres at second floor level.

At ground and first floor levels, the two storey component of the building is setback 3.23 metres and between 2 metres and 3.2 metres respectively from the south-west boundary I with the rear three storey element setback 2 metres at ground and first floor levels and between [3.9, 4.7 and 5.5 metres][1] second floor level.

The rear three storey component of the proposed development is built to the south-east boundary, abutting the bluestone laneway, for a length of 6.3 metres, with the remaining section of wall associated with the studio/home office setback 1.5 metres.

The design of the development is contemporary, with a flat roof and a varied use of building materials and finishes which include glazed panels, light weight cladding or pre-finished metal panels, natural oxide render and timber screens."

11. During the course of the hearing I was provided with a substantial array of information relevant to the decision to be made in this Application for Review, including written and verbal submissions, extensive photographs of the site and its locality, expert written and verbal evidence and opinion.

12. I have also inspected the subject site on a typical weekend.

Matters for Consideration Under Planning Controls and Policies

13. The Planning and Environment Act 1987 (Vic),s 84B sets out the matters the tribunal must take into account in determining an Application for Review. Section 84B(2) also requires the Tribunal to take into account any matters that the Responsible Authority could have taken into account, for example, under s.60 of the Planning and Environment Act 1987.

14. Planning strategies, policies and controls that the parties considered as being relevant to this decision are set out below and, where relevant, discussed in greater detail in the Analysis section following.

15. State Planning Policy Framework, including the following excerpts:

s Clauses 14 and 16, which support the land use and development principles of urban consolidation, subject to increasing emphasis and status to neighbourhood character considerations in terms of location and design. Clauses 15.12 (Energy Efficiency), 18.02 (Car Parking and Public Transport Access) and 19 (Design and Built Form) are also relevant.

s Council's MSS describes Elwood (and Ripponlea) as having "a distinctly suburban character" and refers to the "higher proportion of detached dwellings on larger allotments (21.55%) than in other neighbourhoods in Port Phillip (17%)." An important issue for Elwood is the "loss of existing single dwellings on larger garden allotments that are an important component of the suburban character of Elwood ....." The City's vision for Elwood and Ripponlea includes "established residential areas retain their distinctive suburban character including large front and rear setbacks, established gardens and low rise building form."

s Residential Land Use (Clause 21.05-1, Residential Land Use) includes the strategy that "medium density residential development (be) located on sites that have frontage to a main road or public transport routes as indicated on the Framework Plan, .....", which is supported by the more specific strategy for Elwood (and Ripponlea) "discourage new medium density development in established residential area, except in appropriate locations such as on main roads or public transport routes if no other constraints exist such as heritage considerations."

s The MSS's Residential Land Use Framework Plan includes the locality in an extensive area designated as "Established residential neighbourhoods where existing residential character should generally be protected and the impact of new medium density development be niminised."

s Residential Neighbourhood Character Policy (Clause 22.01) discourages new development that would adversely affect the character of its neighbourhood and requires that heritage buildings that are not included in the Heritage Overlay be taken into account as part of neighbourhood character. Local Policy also identifies the neighbourhood character of Elwood (in part) as "detached dwellings on large allotments with generous front, rear and side setbacks that allow for attractively landscaped large open space areas with established trees; ...... consistent architectural character; ....... Low building heights ranging from 1-2 storey for single residences and 2-3 storey for flats. ......".

s Urban Design Policy for New Residential Development (Clause 22.05) includes the following aims (summarised):

- Consistent with existing dwelling densities, where this aspect contributes to the existing character

- Prevailing front and side setbacks to be maintained

- Building detail to respond to the streetscape character and should be designed to reduce the visual bulk of the building.

- Landscaping should contribute to the landscape character of the street and neighbourhood.

s Housing Local Policy (Clause 22.09) applies to all new residential use and development. Its relevant objectives include ensuring the municipality is a desirable place to live and providing a range of housing types to suite the diverse needs of the community.

16. The transitional provisions of Clause 52.04 apply, so that the proposal must be assessed against the provisions of the Good Design Guide for Medium Density Housing.

17. A permit is required to construct more than one dwelling on a lot.

18. The issues that appear to be most critical to this review include:

s The appropriateness of the site for medium density housing per se, having regard to the various strategies relating to the appropriate location for such housing

s The importance that should be placed on the fact that the building to be demolished is identified as a heritage-contributory building in Council's heritage study

s The importance of policies relating to the retention of large dwellings

s Streetscape and neighbourhood character, including building height, front setback, landscaping

Appropriateness of the Site for Medium Density Housing

19. There was discussion during the hearing as to the interpretation that should be placed on the municipal-wide provision of Clause 21.05 that "medium density residential development (be) located on sites that have frontage to a main road or public transport routes as indicated on the Framework Plan, ....." Mr. Rantino's submission specifically quoted the above and sought to conclude that, as this site is not on a main road or public transport route, it does not meet the above criteria and fails to satisfy this policy. However, it is also important to consider the more specific requirement for the Elwood and Ripponlea neighbourhoods, namely that it is policy to "discourage new medium density development in established residential area, except in appropriate locations such as on main roads or public transport routes if no other constraints exist such as heritage considerations." (Tribunal's emphasis).

20. On the basis of the specific policy, it is clear that main roads and public transport routes are identified only as examples of appropriate locations, although there is no explanation as to why they are appropriate - we are left to guess. The test for this site is therefore whether it too is also in an appropriate location, taking into account all the other criteria that might be used to assess such appropriateness.

21. The same matter was discussed in an earlier Tribunal Decision (T K Investments Pty Ltd v Port Phillip City Council [2001] VCAT 482 (31 March 2110), where the Tribunal noted that "......... (Mr Montebello) did appear to overlook the words `such as' proceeding those two examples of appropriate locations. Clearly, the policy allows for a wider interpretation of what could be considered to be appropriate locations ......." If Mr. Rantino wishes to advance the same argument as Mr. Montebello, he should at least include an argument as to why the previous Tribunal's conclusion in this respect should be set aside.

22. In this case, the site is close to a public transport bus route in Ormond Parade and adjoins a very vibrant local commercial centre - Elwood Centre. In these respects, it could be hardly better placed. It therefore seems to me that the only other relevant criteria are whether there are any negative characteristics of the site itself (eg. suffers from inappropriate amenity for higher density housing. No submissions suggested the site was unsuitable for residential development per se, though there were submissions as to whether it was suitable for a detached dwelling or more suitable for medium density housing, given the nature of adjoining land uses. From my inspection, I see no reason why it could not be so used in principle for some form of residential development.

23. The question, therefore, is whether it is reasonable in principle to proposed medium density housing for this site and, more specifically, the particular design that is the subject of this review.

24. As stated, the existing building is identified in Council's Heritage Review as a contributory (heritage) building, though it is not included in a Heritage Overlay. Because the site is not included in the Heritage Overlay there is no power to refuse a permit to demolish the building on heritage (or any other) grounds. In effect, while the building has some heritage value, it has been judged as not being of local heritage significance - the minimum criterion for inclusion in a Heritage Overlay in a planning scheme.

25. Council's policies refer to the requirement that permit applicants should take account of the contribution of (heritage) contributory buildings not in a Heritage Overlay in assessing streetscape character. I was provided with a map from Council's Heritage Review, which indicated that there are 11 contributory buildings on the south-eastern side of Vautier Street, extending in a continuous row south-west from and including No. 7 (itself a rather plain, two-storeyed block of flats from the Inter-War period), and a further 6, more scattered buildings, on the north-western side of the street. The far end of Vautier Street is included in an area-wide Heritage Overlay, as is the building adjoining the subject site to the north-east, on the southern corner of Ormond Parade and Vautier Street.

26. No planning permit required for the demolition of the existing building, so that it could be removed at any time. It is therefore illogical to require a replacement building to respond to its character. At best, a replacement building can (and should) respond to the character of remaining contributory buildings.

27. In my view, Council's policy is merely an elaboration of the present policies relating to the protection of neighbourhood character. Given that decision-makers are already required to consider neighbourhood character, they should not need to be told to take account of any buildings that contribute to the neighbourhood character of an area. Mr. Rantino submitted that it was the responsibility of the developer to state how this policy had been taken into account. In my view, given that this policy is simply the application of the neighbourhood character policy in particular circumstances (ie. some nearby buildings have a particular heritage-related appearance) an appropriate response is merely to demonstrate that the proposed building satisfies the neighbourhood character requirements of the Good Design Guide per se.

28. In this respect, Council's elaboration of this point in its policy would be just as effective if Council instead provided a footnote to the effect that "in some situations, an area's neighbourhood character may be based on by a number of buildings of heritage character". In fact, given that No. 7, the nearest `contributory' building, is a rather plain, two storeyed block of flats, an argument could be made that the proposed building, being another block of flats, is generally quite appropriate other than, perhaps, for its excessive articulation.

29. In conclusion, given that there is no control over the demolition of the existing building on the subject site, Council has no grounds on which it can require the permit applicant to justify this building's removal.

30. Council has a number of strategies and policies relating to the retention of larger dwellings in the Elwood neighbourhood. An earlier version of the planning scheme made reference to a policy of retaining "family housing". This policy was criticised in an earlier Tribunal decision (Buckerfield Pty Ltd v Port Phillip City Council [2000] VCAT [30 September 2000]) where the Tribunal suggested that it would be beneficial if the Responsible Authority investigated the occupancy of the dwellings in its municipality to confirm that "'families' (however they are defined) do occupy or do wish to occupy `family housing', and thus there is some basis for the policy." However, Council did not undertaken such research but instead amended its policies to remove the reference to family housing. The planning scheme now includes the strategic objective "To encourage the retention and construction of larger dwellings to cater for larger households" (Clause 21.05 Residential Land Use) and, for Elwood specifically: "Protect the stock of larger dwellings and single dwelling lots in order to offer a range of housing options to the community". There is no specific (Clause 22) policy relating to this strategy and the nearest policy is Clause 22.09 (Housing) which contains an objective "To provide a range of housing types to suit the diverse needs of Port Phillip's community" with a supporting policy "Where possible, new residential developments should provide a variety of dwelling size and types to satisfy different needs as identified in the Port Phillip Housing Strategy_."_ However, I do note that there is reference to the importance of "detached dwellings on large allotments" as being one of the elements that is to be resected and, where possible, enhanced by new developments (Clause 22.01-3 (Residential Neighbourhood Character Policy).

31. Two issues need to be considered here - the matter of protecting the existing stock of large and single lot dwellings, and the requirements to be made of new dwellings - ie. whether permits should be refused if proposed dwellings are not large enough or on a single lot.

32. With respect to the first issue, there is no overlay or zone that prohibits the demolition of any class of dwellings (other than those in a Heritage Overlay). Consequently, there is no means of protecting such existing dwellings by refusing to permit their demolition. The Clause 21 reference to "protect", in the context of protecting the stock of larger dwellings and single dwelling lots, can therefore only be interpreted as referring to the process of creating appropriate planning controls to achieve this purpose. This is an outcome yet to be achieved and is therefore not relevant here and, without any means of putting this policy into effect, it seems to me to be entirely useless in terms of having any influence on achievable outcomes. On this basis, I cannot accept Mr. Rantino's submission (p17) that "the (policy) demands the developer to make out a case for (the subject building's) demolition ......".

33. With respect to the second matter, the first point is that this was not included as a ground of Council's refusal. Mr. Rantino's reference to this matter appears to have been under the general reference to "non-compliance with fundamental planning policy objectives for this area." The first part of his argument related to the desirability of retaining the existing dwelling (refer discussion above), the second to the size of replacement dwellings.

34. In respect to the latter matter, it is appropriate to consider the Clause 21 and Clause 22 strategies and policies relating to the provision of large dwellings and single lot dwellings. Clause 21.05-1 includes the objective (in part) "to encourage the ...... construction of larger dwellings to cater for larger households." As discussed, there is no policy explaining how this is to be achieved. The most apt policy relates to housing diversity (Clause 22.09). The only Clause 22 reference to large dwellings etc. relates to the protection and enhancement of neighbourhood character.

35. Council appears to have no information, except at the broadest demographic analysis (eg. ABS census data) relating to the types of household or population that occurs in the different neighbourhoods and no information was offered to the Tribunal. Council has not adopted any planning controls (eg. overlays) that could be directed to the purpose of protecting large or single-lot houses and there is no control over demolition of such dwelling-types.

36. I also note that, as explained by Mr. Biles, the proposed accommodation of each dwelling offers an innovative flexibility, as each dwelling includes a third bedroom at ground level with its own toilet/bathroom facilities, somewhat separated from the rest of the living and sleeping accommodation and able to be occupied relatively independently. Mr. Biles pointed out that this accommodation would be suitable for older children at that stage of wanting the independence of leaving home without having to leave home, or for a small office with direct access to the street.

37. The difficulty for Council in implementing any strategy or policy relating to the provision of larger dwellings is that it is seeking to achieve a social objective by intervening in the production of the City's physical structure (its stock of private housing) by, in turn, guiding the behaviour of the housing market to provide housing types that the development industry finds less attractive. Apart from the fact that physical determinism has never had a great reputation in terms of successful social outcomes, the housing market is extraordinarily complex and, if Council expects to be successful in implementing such policies, they will in my view have to be framed with considerably greater sophistication than the present ones.

38. On the assumption that larger new housing is probably less profitable than smaller housing, Council has to set out a policy basis on which it is justified in discriminating against selected development proposals (ie. rendering them less profitable) in order to pursue a social-mix objective. The large proportion of planning controls has historically been based on the desire to ensure reasonable residential amenity by constraining the extent of development to an acceptable limit (neighbourhood character, traffic impacts, overlooking, overshadowing, etc.). Council's policy, in this matter, would seem to require developers to build larger (and presumably fewer) dwellings in order to retain a particular social mix. Clause 21.05's strategic reference to retaining larger dwellings is very general and there is no indication as to how it might or can be achieved. The operation of the housing market is extraordinarily complex and there is no indication that this complexity is recognized by this policy.

39. In these circumstances, do not consider that this strategic objective can be given any weight.

40. In this case, the developer clearly believes that there is a substantial demand for the type of accommodation proposed, where the type of accommodation is moderately spacious (units 3 to 7 having three bedrooms an area of 150 square metres excluding the garage, by my calculation) and an unusual and innovative layout is proposed.

41. Given the above discussion, I do not believe that the proposed development should be rejected on the basis of the size of the proposed dwellings.

42. In my view, this is probably one of the two most important issues in this matter (the other being parking).

43. There are numerous provisions in Clauses 21 and 22 relating to streetscape and neighbourhood character. The key issues in this case appear to me to relate to the scale and form of the building and its fit in the streetscape and, more particularly, the issue of front setback and provision of landscaping. The proposed building is to be of two storeyed height at the front, with the three-storeyed section set back a distance of about 13 metres from Vautier Street.

44. I consider it relevant that the site is situated between a 1970's, two-storeyed block of flats (No. 5 Vautier Street, with No. 7 being a second two-storeyed block), adjoins the rear of sitesF containing 2 and 3 storeyed commercial buildings (across the narrow laneway, with private car parking and a small outbuilding to their rear) and immediately opposite are other two storeyed residential buildings (in the business zone). The latter, together with the commercial buildings, are built to the street line, while the two-storeyed block of flats at No. 5 Vautier Street is set back 4.5 metres from the frontage. I also consider it of some relevance that Council itself considers it appropriate for the latter block of flats to be extended to 3 storeys in height. The proposed development's flat roof will be similar to the flat roofs of commercial buildings and the dwellings opposite.

45. In this admittedly very local context, I consider that the proposed building's scale and form will fit well with its immediate surrounds. In the circumstances, I find it difficult to consider how it could not. Mr. Rantino criticised Mr. Biles' reference to the site being "sandwiched" between buildings and "wedged" between zones and, while these terms are perhaps unnecessarily colourful and emotive, I consider them not inappropriate in their general sense. In effect, I consider that it is reasonable to characterise the subject site as being isolated in a small area best characterised as having a very urban type of development. Development immediately adjoining the subject site is distinctly different to that which occurs to the south of No. 7, along the eastern side of the street, and southwards of No. 2A on the western side of the street.

46. However, Council and the resident/respondents made various submissions to the effect that the relevant neighbourhood and streetscape that should be considered was that extending to the south-west down the length of Vautier Street. Council's policy (Clause 22.05) requires "all new developments to respect and, where possible, enhance the following elements of each local neighbourhood which contribute to its character" which, for Elwood, includes "detached dwellings on large allotments with generous front, side and rear setbacks that allow for attractively landscaped large open space areas with established trees." Submissions included the statement, put in various ways, that although the character of Vautier Street is mixed, it is nevertheless dominated by detached houses.

47. The Elwood characteristics referred to in Clause 21.05 are "Low building heights ranging from 1-2 storey for single residences and 2-3 storey for flats" which is exactly what can be found in the area. Mr. Biles referred to Vautier Street as comprising "a strong mix of medium density housing, which generally ranges in height from two to three storeys."

48. Other submitters made the point that the existing three storeyed dwellings were c1960s or thereabouts and did not create any precedence for a new, three-storeyed building.

49. From my inspection of the locality, the character of Vautier Street is not quite what submitters painted. Even though blocks of flats are in the minority, they are clearly present and make up a significant part of the street's visual character. Furthermore, I must take account of the fact that the three storeyed section of the subject building is well setback from the frontage and there are two, two-storeyed buildings adjoining to the south-west which partly conceal any views of it. It is also relevant that, in my view, the relatively dense vegetation of the avenue of deciduous trees (still bearing much of their leaf canopy in early May) prevents any long views of the street and only the nearer houses can be seen from any one viewing point. Also, even though a majority of dwellings are detached, there is a surprisingly high density of building form - a matter relevant to the next section of discussion about landscaping and setbacks.

50. It is also not relevant that the other three-storeyed buildings were built in the 1960s or 1970s. From a streetscape point, they exist and must be taken into account. Streetscape and neighbourhood character build on, and seek to enhance, the character that exists today.

51. The proposed development, as amended, is to have its two-storeyed front section set back 2.4 metres (rather than the 1.92 metres as proposed). To the north-east of the subject site is a rear outbuilding, car parking with boundary fence and two-storeyed commercial building built to the street line. To the south-west are two blocks of flats with frontage setbacks of 4.1 metres (No. 5) and 5.8 metres (No. 7). Opposite are the two storeyed dwellings built to, or with high masonry fences built on, the property's frontage. While the proposed 2.4 metre setback is much less than the existing dwellings' and is generally less than other setbacks in the street, it is very much in character with the short section of urban streetscape that is established by adjoining and nearby buildings. The setback also provides a transition between the no-setback walls of the commercial building on the corner of Ormond Esplanade and the larger setback of No. 5.

52. The actual elevation details to the Vautier Street frontage are, in my view, well articulated, represent an attractive arrangement of materials and patterning of voids and solids. Mr. Biles provided particularly glowing complements to the quality of this design in particular and the abilities of Neometro Architects in general, although his extensive personal association with the firm and its designs may perhaps have reduced his independence of opinion.

53. With respect to the length of the building extending along the block to the rear lane, some of the respondents and Mr. Rantino appeared to be filled with a kind of horror. It is quiet true that there will be a considerable extent and mass of building but, again, this must be assessed in the local context. For this site, because of its position between a long, two-storeyed block of flats to the south-west and the rear areas of commercial properties across a narrow lane, its context, and views down the length of the site, are rather different to the norm. In fact, because of the site's situation, views from the street along its length are rather limited.

54. I consider that, given the character of the block of flats to the south-west and the limited view into the site from the street, the scale and details of the building's southern elevation are acceptable. I note that the permit applicant has negotiated with residents of No. 5 and has modified the design to overcome their concerns. I consider this a reasonable test of the acceptability of the building's character and scale. With respect to Mr. Rantino's submission that the building is insufficiently articulated and that such variations as are provided to the long elevations are relatively superficial, I do not agree. Again, given the context and the limited views of this elevation, I consider it acceptable. (I rather suspect that the day may come when excessive building articulation is derided as much as it is today treated as a solution to most of the ills of excessive building mass.)

55. Likewise, I consider the considerable length and details of the building's north-eastern elevation to be acceptable in their context of facing across a narrow laneway towards the rear boundaries of commercial buildings in a shopping centre. This elevation of the subject building is set within a commercial rather than a typical residential environment and should be judged on that basis.

56. The proposed front fencing, 1.8 metres hight and semi-transparent, is different to other examples of fencing further to the south-west in the street but, in my view, fits well with the building's immediate setting. There will be no serious of significant vegetation (there is little vegetation of any value on the subject site) and there will be some opportunities for modest planting. I note that front gardens of dwellings in Vautier Street, towards The Esplanade, are not characterised by substantial vegetation and, according to the photographs submitted, many tend to be dominated by parking.

57. In this respect, I consider that the proposed development will fit reasonably well with the important aspects of the local streetscape and neighbourhood character. The photo-montage provided by the Mr. Bissett is, even if only providing one viewpoint, particularly helpful in gaining a general appreciation of the building's scale within its setting and the extent to which the substantial avenue of plane trees further mitigates against any risk that the subject building would dominating its setting.

58. The area is clearly under considerable parking pressure and respondents provided copious photographs of local parking and traffic misbehaviour, as well as of vehicles being parked in front gardens in Vautier and other streets for want of adequate on-street capacity.

59. Mr. Brown, Ms Wheelahan and others submitted that the traffic counts were taken during school holidays, at times outside the peak traffic periods and on a Friday, which is "notoriously inaccurate" as an indicator of typical volumes, so that the recorded traffic volumes would underestimate the real traffic volumes; furthermore, that the sample of volumes was statistically inadequate. According to Mr. Brown, the morning peak occurs much earlier, before 8.30AM, and the afternoon peak later than the times recorded by Mr. Symons.

60. In fact, while Mr. Symons' evidence stated that he had undertaken traffic counts on Friday 14th December 2001, evidence presented to the Tribunal indicated that the traffic counts had been taken over a whole day, with the peak periods identified only after data was collected and analysed. If a clearer description of the methodology used, or a full record of counts over the day had been included in Mr. Symons' evidence, a good deal of the residents' misunderstanding and angst would have been avoided! These counts indicated peak two-way volumes as follows:

s In the lane between Vautier and Docker Streets (the rear lane) - 10 to 15 v.p.hr and

s In the lane between the subject site and the commercial properties to the north-east (the side lane) - 1 to 5 v.p.hr.

61. Mr. Symons calculated that the development would create about 35 additional vehicles per day (or, using the general rule-of-thumb that about 10% of generated traffic occurs during each of the peak hours, about 3 to 4 vehicles per peak hour). This level of additional traffic would, in my view, not be noticed, even if substantially underestimated.

62. Mr. Symons traffic surveyors had noted vehicles parked in the side lane on a number of occasions while loading/unloading goods or entering or leaving the commercial properties. According to Mr. Symons, these vehicles had been seen to stand for about 3 or 4 minutes.

63. In response to questions on this matter, Mr. Symons explained that, in his experience, traffic flows are relatively constant over the week, but with Friday being the busiest day. Although the counts were taken after school holidays had begun, any consequent reduction in traffic would have been offset by the additional traffic that occurs in the period immediately before Christmas. On the basis of the further information provided by Mr. Symons under cross-examination, I am prepared to accept that the recorded peak hour times and volumes have been identified with sufficient accuracy to provide a reliable indication of the present situation.

64. These traffic volumes are minuscule in terms of volumes that are acceptable in local streets. Even if Fridays are misleading and traffic volumes are low after school holidays begin, the volumes are highly indicative of a street and lanes with low volumes of traffic. Even if the volumes had been substantially understated, I would draw the same conclusion.

65. Residents also gave examples of existing and potential conflicts between commercial vehicles parking and standing in the side lane while attending the commercial properties backing-onto the lane and submitted that this behaviour would only create further conflict with residents seeking to use the garages with access off this laneway.

66. While I accept that there may be a some conflict between residents and commercial traffic, I do not put great weight on the present situation as an indication of future events. After all, because there is only a side paling fence to the subject site, there is little reason for the drivers of commercial vehicles to have much regard to the needs of other drivers. If development were to proceed, I consider it reasonable to expect a different, and more considerate, behaviour by these drivers.

67. A more contentious issue was the provision of parking for the future residents of the subject development. Resident respondents had a number of concerns:

s demand for parking by the residents of the proposed dwellings would exceed the two spaces that were to be provided for each dwelling and

s residents would resist using the stacker system because of its inconvenience or the difficulty of driving into the garages, so that only one car at most would be parked on-site and additional parking pressure would be placed on the surrounding streets.

68. With respect to the parking required for dwellings, the good Design Guide requires 125 vehicles for each dwelling of two or more bedrooms. The new Rescode, which is presumably based on more recent analysis, only requires 1 parking space for one and two-bedroom apartments but two parking spaces for apartments with three or more bedrooms. Although the rear 5 dwellings are described as two-bedroom apartments, Mr. Biles described the ground floor habitable room as either a small office or third bedroom. On that basis, it would be a reasonable assumption to assume that each dwelling could be a three-bedroomed dwelling and should therefore have at least two parking spaces. The two front dwellings, being clearly only 2 bedrooms each would, under ResCode, only require one parking space each.

69. The conservative nature of the above assumption was demonstrated by Mr. Symons through comparison to a survey of resident parking, undertaken by his firm, for a block of 35 apartments in River Street, Richmond. In that case, the parking requirement for the apartments' residents was calculated at marginally less than 1.0 spaces per apartment.

70. There was considerable discussion about the practical usefulness of the car parking stacker system. Examples of this parking system can be found in a number of developments through the cities of South Yarra and Port Phillip.

71. In this case, the scissor-stacker that is proposed is the "Park 23", manufactured by Eco & Park. In response to the various assertions and submissions about the adequacy of this proposal, Mr. Symons, in response to my direction, prepared and submitted further diagrams illustrating the manoeuvring required for an 85% car to enter one of the garages and park on the platform of the stacker. From this illustration, the critical dimension is not the width of the garage door (amended to 3.1 metres) or the stacker unit, but the dimension across the laneway to the stacker.

72. I also received a dissenting submission from Ms Czermak and others complaining both about the process of notification of this further information and disputing that it demonstrated what Mr. Symons claimed. With respect to my direction, Ms Czermak is correct in that my notes indicate that I did require the information to be provided to all parties to the hearing, meaning those present on either day. However, although Minter Ellison provide a copy only to Ms. Czermak, it is clear from the various signatures to Ms. Czermak's letter that all those who I required to be notified had indeed had the benefit of viewing the further submission. Although Ms. Czermak raised a number of issues (noise, position of the base of the stacker, details of the swept path, safety issues in the laneway) I do not consider these amount to any serious omission or issue that would question the appropriateness of either the general location of the garages, vehicular access to them or use of a scissor-stacker. In particular, given the low traffic volumes that will be generated by the development, I do not see any objection to the laneway becoming a shared pathway/driveway - a design approach supported by the original Victorian Code for Residential Development.

73. The layout prepared by Mr. Symons demonstrated to my satisfaction that the 85% car can indeed enter the stacker in a single movement and can likewise be expected to exit satisfactorily. Although I consider that the dimensions are not over-generous, I am prepared to accept that the layout is workable. It is certainly clear that the stackers will have to be positioned carefully in each garage but I consider it reasonable to presume that the location can be adjusted at future dates, if necessary.

74. There was also discussion and submissions about the adequacy of the stackers' fit within the garages and whether a driver would be able to manoeuvre around their car to enter or leave it and also to operate the control, which is mounted on the outer end of the base frame. It also appears desirable that the internal garage doorways should be relocated to a position that would not require a person to walk past the support framework at the inner-end of the stacker.

75. The respondent-residents expressed disbelief that new residents would be prepared to tolerate the inconvenience of using the stacker. However, it appears to me that the only difference between the use of the scissor-stacker and the more conventional tandem parking, when it comes to gaining access to the inner or upper car, is that the stacker requires slightly more time to raise or lower the platform. In other respects, the two systems are remarkably similar in principle.

76. There was also discussion as to the size of vehicle that could be accommodated in the stacker system. It appears, from Mr. Symons' evidence, that a reasonable range of vehicles can be accommodated in the lower platform but that the upper platform would accommodate only the smaller types of 4-wheel drive vehicles. I see no problem with this situation.

77. I also note that Council's traffic engineer had no objection to any aspect of the provision of resident parking, including the reduction of visitor parking, the number of resident parking spaces, the means and dimensions of the access to the garages and use of the scissor-stacker system. In a supplementary report, the engineer noted that "The City of Port Phillip has been approving car stacker for over two years now and I am not aware of any difficulties caused by their use. In terms of delays, these are expected to be minimal and occurring only when the top car is to be taken out while bottom one is there. I have read the supporting material from experts on car stackers and cannot see a reason why the proposed car stacker would not be appropriate."

78. With respect to reduction in parking for the visitor spaces, Mr. Symons' gave no evidence in relation to the reduction in parking from the two required by the Good Design Guide to the one generous space proposed. However, this is the only marginal deficiency in a proposal that otherwise has been assessed as having adequate parking provision.

79. The resident-respondents are clearly concerned about the considerable and, as they see, increasing parking pressures that are being created in Vautier Street from the activities in Ormond Road, particularly the increasing numbers of restaurants. This pressure is reflected in fact that Vautier Street has quite restrictive parking controls including extensive use of 2P limits and Resident Permit Parking. Respondents provided extensive photographs illustrating the means that residents adopted to cope with the inadequacy of on-street parking. However, this is only an issue to the extent that the proposed development is seriously underprovided with its own parking. Certainly the residents were arguing both sides of the coin, in that if there is strong competition for on-street parking spaces, that will itself be a strong incentive for the new residents to make the maximum use of their on-site parking.

80. Reference was made to the conditions attached to the original report by Council's officers in support of the permit application. Changes requested by Mr. Bissett included:

s Amend condition 1(a) with more appropriate words identifying the already amended drawings

s Add a new condition requiring the relocation of the light pole in the side-lane or the provision of alternative means of mounting a public light to the satisfaction of the responsible authority

s Add a further condition requiring the parking in Units 3 to 7 to incorporate a scissor-stacker parking device, to be the model "Park 23" manufactured by Eco & Park or otherwise to the satisfaction of the responsible authority.

For the above reasons, the decision of the Responsible Authority is set aside. It is appropriate for a permit to be granted for the construction of 7 dwellings and the reduction in visitor parking and I so order.

[1] As corrected at the hearing by Mr. Biles