The subject land is an irregular shaped parcel with a total area of some 3698m2. It has frontages to Varcoe Close and Uganda Street of 14.59m and 15.29m respectively. It also has rearage to Crisp Place of some 24m.

Under the Whitehorse Planning Scheme, the subject land and surrounds are zoned Residential C.

1. The layout of the development is insensitive to the streetscape and adjoining properties in terms of presentation of car parking areas to the street, building height and bulk in some locations, and loss of significant trees.

2. The proposal will not achieve a medium density development which is respectful of the predominant character of the neighbourhood or make a positive contribution to the character of the neighbourhood.

3. The proposal will cause material detriment to surrounding residents.

4. The proposal does not meet aspects of the Good Design Guide for Medium Density Housing.

5. Insufficient car parking is provided for the development.

6. The proposal is considered to be an overdevelopment of the site.

7. The proposed development is contrary to the orderly and proper planning of the area.

The proposal does not produce any significant or unreasonable amenity impacts on adjacent properties.

The proposal is responsive to the area character and site context.

The proposal complies with all relevant planning requirements.

The proposal achieves sufficient compliance with the Good Design Guide for Medium Density Housing.

* Mr Graeme Peake, Barrister, instructed by Maddock Lonie and Chisholm, Solicitors, appeared for the Responsible Authority.

* Mr Stephen Jones, Barrister, appeared for the permit applicant, by direct brief. He called to give evidence:

- Mr John McDill, Town Planner of John McDill and Associates Pty Ltd.

- Mr Geoffrey Wilson, of Student Housing Management (the trading name of Falconer, MacArtney Robinson, Licensed Real Estate Agents) the prospective housing manager.

- Ms Jandy Godfrey, Director, Deakin International, Deakin University.

- Mr Rob Galbraith, Arborist of Galbraith and Associates.

- Mr Des Grogan, Traffic Engineer of Grogan Richards Pty Ltd, Consulting Engineers.

- Mr Nicholas Daviotis, Architect and the Project Designer of Nicholas and Alexander, Architects.

* The following objectors appeared in person Mr Ern and Mrs Elizabeth Treloar, Ms Sylvia and Mr Andrew Tomasovic, Mr Ivor Anderson, Mr Robert Weir who also spoke on behalf of the Lucking family, Mr Michael and Ms Teresa Jackson and Mr Peter Au-yeung,.

* Ms Anne Edmunds represented Ms Anne Connell of the Inner East Rooming Housing Group.

* Mr Clive Jackson represented the Director of Housing, another objector.

Written submissions were received from Ms Wendy Armstrong, Ms Anne and Mr Jeffrey Lay & Ors, Mr Y.C. Pang and Ms S.K. Yip, Mr & Mrs K.& C. Lucking, Mr K. Trieu, Dr Sally Constable and Mr Simon Kennedy.

Since the hearing, the Tribunal has inspected the subject site and surrounds to better understand the issues raised by the parties.

This application for review is one brought by the permit applicant in response to the decision by the City of Whitehorse to refuse planning permission for the use of the land at 2 Varcoe Cloe and 8 Uganda Street, Burwood for residential buildings which are intended to provide student accommodation. An ancillary administration building and associated car parking and landscaping are also proposed.

Upon receipt of the application, the Responsible Authority had required it to be advertised and in response 73 objections were received from owners/occupiers of surrounding properties. Mr Peake's submission to the hearing of the application for review summarised the grounds of objection as follows:

"- the proposed density of accommodation is too high for the area;

- the parking proposed to be provided is inadequate for the number of students to be accommodated on the site, which will cause increased parking in nearby streets;

- the proposal will result in increased traffic in residential streets, which will result in increased noise, congestion and traffic noise;

- the proposed use of the site will increase noise levels in the area;

- the use of the site for student accommodation is not appropriate for the area;

- the development does not interface well with dwellings adjacent to the site;

- the proposal will result in the loss of existing trees."

Those concerns for the most part remained at issue in the Tribunal proceeding.

The subject site comprises land in two titles. One is a conventionally sized (597sq m) rectangular residential lot with a frontage of 15.24m to the northern side of Uganda Street and a depth of 49.28m. It is developed with a post-war dwelling. The dwelling is proposed under the revised plans before the Tribunal to be retained and extended to serve as the administration building for the student housing. An existing driveway at the western side of the site will also be retained and provide access to on-site car parking spaces.

The remainder of the subject land comprises a large irregularly shaped lot with a frontage to the eastern side of Varcoe Close which intersects with Uganda Street just two lots to the west of 8 Uganda Street. Close to the Varcoe Street frontage there is a sealed car park which can accommodate approximately seven vehicles. This lot also has rearage to the western side of Crisp Place of approximately 24m. There is another sealed car park close to this boundary, accommodating perhaps 10 vehicles. The land is otherwise vacant and has an area of 3,110 sq m. There are a number of significant trees on the land, most of which are proposed to be removed under this application. The land falls by some 9m across its width which is approximately 80m. The subject land as a whole has abuttal to some nine properties developed with dwellings.

The large vacant lot forming the northern part of the subject land formerly was part of the site developed as the Orana Children's Home. Much of the remainder of this land was developed by the Ministry for Housing in the late 1980s for public housing purposes. It was as part of the subdivision of the Orana site in 1984 that Varcoe Close was created on land which was formerly used for a dwelling: No. 16 Uganda Street.

Uganda Street, is a local residential street running west from Elgar Road. Uganda Street has a pavement width of 7.2m within a 15.2m wide road reserve. According to traffic counts undertaken by Grogan Richards in late 1998, Uganda Street carries in the order of 1764 vehicles per day. Housing in this street and the area generally to the south is for the most part of post-1950s origins. There is a variety of building materials - weatherboard, some brick and render, and pitched/hipped tiled roofs are typical. Housing in the street is predominantly single storey and there is a variety of fence types. Some properties have no front fences.

Crisp Place is a dead-end local access place with a pavement width of 4.5m. It serves only four residential properties at the present time.

Housing in the neighbourhood generally to the north and west of the subject land, including that on the former Orana site, is of more recent origins. The land is more intensively developed than that south of Uganda Street, and two storey development is common.

The subject site is located less than 200m from the Deakin University Burwood campus which is located on the eastern side of Elgar Road.

This application was the subject of amendments on two occasions during the Tribunal hearing.

The plans considered by the Responsible Authority showed the development of the site for four residential buildings accommodating 84 student bedrooms, with an administration building located at the northern edge of the site. Nine studio apartments, six two bedroom flats, one three bedroom flat and ten six bedroom flats were proposed. A laundrette and recreation room for pool and table tennis were also included as part of the proposal. Thirty-seven on-site car parking spaces were proposed to be provided, utilising the existing seven and 12 space areas at Varcoe Close and Crisp Place respectively, and by demolishing the dwelling on the lot at 8 Uganda Street and converting its use to 17 parking spaces.

On the 18th of November 1998, the applicant gave notice that it was intended to seek the Tribunal's leave to amend the application by the substitution of new plans. Major changes to the proposal included:

"(1) the proposed 14 parking spaces and access on 8 Uganda Street is deleted and replaced by:

(i) retention of the existing dwelling to be extended and converted to an administration building;

(ii) the construction of a two-storey building (Building 5) in the rear yard. Building 5 contains two three bedroom flats;

(2) the extension of the car park accessed from Varcoe Close from 7 spaces adjacent to the south boundary of the site to 17 spaces;

(4) the separation of Building 3 into two elements connected by an elevated walkway;

(5) replacement of the proposed administration building with a two storey building containing two, two bedroom flats;

(6) total number of bedrooms reduced from 84 to 74, with an increase in the number of bedsits, so that the development accommodates 84 students;

(7) car parking reduced from 36 spaces to 34 spaces."

The revised development represented a site coverage of some 34% and a unit to site area ratio of 1:56sq m.

On the 4th of December 1998, the applicant again gave notice that it was intended to further amend the application before the Tribunal by reducing Building 5 at the northern end of 8 Uganda Street from two storeys to single storey.

At the outset of the hearing by the Tribunal, Mr Peake made successful application to substitute those late 1998 plans for the plans which had been considered by the Responsible Authority, pursuant to Clause 64(2) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

The Responsible Authority and all but two of the objectors then continued to oppose the proposal in its amended form. The remainder of the first day of hearing was devoted to submissions by the Responsible Authority and some of the objectors' presentations.

The hearing was then adjourned until late in January 1999. Between the days of hearing, the applicant advised the other parties that it was proposed to again seek leave to substitute new plans for the Tribunal's consideration. On approximately the 15th of January, the new plans were circulated to the other parties, and to other persons upon whom public notice had originally been served. The main changes to the plans were as follows:

"Removal of elevated walkways and placement of stairs away from boundaries.

Upper levels of Buildings 1, 3A, 3B and 4 reduced in area.

Double bedrooms limited to four in number (Building 6).

Variations to external materials, room layouts, window openings and entries.

In summary, the further revised plans propose 62 single bedrooms, four double bedrooms giving a total of 66 bedrooms (70 students). Thirty-four car parking spaces are proposed. The number of car parking spaces has been reduced by two from the 36 originally proposed to the Council, and the number of bedrooms has been reduced from 84 to 66.

At the reconvened hearing, the Tribunal permitted the substitution of these new plans for its consideration, having first heard from the other parties.

Following the substitution of the plans, Mr Peake indicated that the Responsible Authority considered that the development depicted on the new plans was an appropriate and acceptable form of development of the land for student accommodation in association with Deakin University subject to only limited reservations. Those reservations related to access to the major car parking areas from Crisp Place and Varcoe Close and the effects on residential amenity arising therefrom. Another concern was the noise from the Varcoe Close car park affecting the amenity of the principal private open spaces of the adjoining properties, but this was seen to be capable of resolution by acoustic fencing and landscaping.

The objectors to the application, however, remained opposed to the development of the site.

Planning permission is required for the use of land for a residential building in the Residential C Zone of the Whitehorse Planning Scheme. Clause 16-2 generally guides the exercise of this discretion. It requires that consideration be given, inter alia, to the orderly planning of the area, relevant planning policies, and the effect of the proposal on the amenity of the neighbourhood. Clause 21 is also relevant to the application. It requires that the proposal be assessed against the element objectives and criteria of the Good Design Guide for Medium Density Housing.

At the hearing of the application for review, we were presented with oral and written submissions by the parties present. Expert evidence was called in relation to traffic, landscaping and town planning issues. In addition, Mr Jones for the permit applicant called two witnesses who attested to the need for student housing in the vicinity of Deakin University, and described the management arrangements proposed if the development were allowed to proceed. A number of written submissions had earlier been received by the Tribunal. These together with the oral and written submissions and evidence presented at the hearing have been taken into account in this determination. We have also inspected the subject land and surrounds in order to assist our assessment of the issues raised by the parties.

We have formed the view that the Responsible Authority's original decision should be set aside and a permit granted for the proposed development in accordance with the revised plans of January 1999. Our reasons for that view are as follows:

* We find the subject site to be strategically well located for student housing purposes: it is only 170m to the entrance to Deakin University; and the site is one well served by public transport with ready access to retail and community services. While some of the resident objectors appeared to be of the view that the student housing would represent a form of land use inconsistent with the residential zoning of the locality, we believe that this is not the case. Student housing is by definition a residential use, it is just that it takes an institutional form. Many institutional forms of housing, such as nursing homes and special accommodation homes, or indeed boarding houses, as abut the subject site are found within residential areas. Indeed this is an area which has a history of institutional housing. Further, residential areas/zonings also accommodate a range of non-residential uses. Whether institutional housing or a non-residential use is appropriate to a particular residential location, depends not upon the zoning of the land but largely upon the effects of the particular development upon the amenity of the locality.

* We accept the evidence given by Ms Godfrey of Deakin International at Deakin University, that there is a significant demand for student housing at this campus: there is a shortfall of in excess of a thousand units for overseas students alone. We are of the view that the clearly demonstrated need for the facility is a factor which we should take into account in our decision. In our view, it is a factor which offsets the only marginal disamenities for surrounding residents which may arise as a result of the proposal proceeding.

* We are of the view that the proposed development will not unacceptably affect the character of this neighbourhood as seen from the street: the northern lot has only limited street frontage and the utilisation of the land adjacent to the frontages will remain largely as at present, except that additional planting adjacent to these frontages is proposed. There will also be little or no change to the appearance of the development on the land at 8 Uganda Street: the existing dwelling is to be retained for use as the administration building. While two car parking spaces are proposed in the front setback, screen planting is also to occur.

Furthermore we are satisfied that the proposed form and materials of construction of the housing, to the extent that it is visible from surrounding properties, will visually integrate with existing development in the neighbourhood. That development, in any case, as we earlier noted, displays a good deal of variety.

This visual effect of this development, as Mr Peake submitted, is really to be assessed from a "back yard" perspective. This is dealt with below.

* In relation to direct amenity impacts for neighbouring properties, there are a number of particular matters to be considered.

- The issue of overlooking to surrounding properties was raised in a number of submissions. The Treloars were concerned about overlooking from the west facing upper level bedroom window in Building 4. However, having regard to the fact that this window is in excess of 20m from their property boundary, pertains only to a single bedroom, and there are intervening trees, no unreasonable overlooking will occur.

The Jacksons at No. 4 Uganda Street were also concerned about overlooking to their property. In particular, they were concerned about five south facing upper level windows in Building 3B. However, the upper level of Building 3B is set back further from the southern boundary of the subject land than the ground level, resulting in those windows being in excess of 10m from the Jackson property, a distance which the Good Design Guide recognises as adequate to protect privacy. Furthermore, the angle of view to the Jackson property is somewhat acute, certainly beyond the 45o arc from the window referred to in the Good Design Guide. Also, tall screening vegetation is proposed around the south-east corner of Building 3B.

It is to be noted the Jacksons were concerned not about actual overlooking but perceived overlooking having regard to the fact that screening is now proposed to those upper level windows. Perforated screens with 25% opening are proposed. Those screens would be set off the five bedroom windows in question at a distance of perhaps 0.75m. The elevation drawing suggests that the screens would cover the entire window. We are of the view that it is adequate for the screens to preclude overlooking to neighbouring properties when the occupant of the room is in a seated position at the desk beneath the window and propose that the screens be required to have a height above first floor level of only 1.3m. In this way the amenity of the student bedrooms will also be acceptable, in as much as some more distant views will be available.

Ms Connell's submission also expressed concerns about overlooking from the western elevation of Building 1. However, no windows are proposed in the upper level and we are satisfied that boundary planting will be adequate to screen views from ground floor windows towards the rooming house on the land to the west.

Concerns about overlooking to the residential property to the north of Building 2 have also been addressed by the proposed installation of window screens to north facing first floor windows. Two ground floor windows are also proposed to be screened as the slope of the land would allow overlooking even from this level. In all six bedrooms would be affected. The screens in this location are proposed, however, to be directional screens affording the student occupants a restricted but adequate outlook. We do not believe that any modification is to the screening in this location required.

- Visual bulk of the development in combination with removal of vegetation were also matters of concern in relation to surrounding properties. We are of the view that while the original plans, and indeed the intermediate plans, were of concern in this regard - Building 3 was a much larger building and in the intermediate plans elevated walkways accentuated the extensive built area - the final revised plans are acceptable so far as presentation to surrounding boundaries is concerned. For the most part the elevations are broken by articulation of the walls and roof forms. The only unrelieved long section of wall is the northern wall of Building 1 but this is proposed to be screened from neighbouring properties by 10m high trees. There will be some short-tern disamenity until the landscaping is well established, but in the long-term the presentation will be acceptable.

This application proposes the removal of a significant number of the large trees existing on the site at the present time. While this is regrettable, we were persuaded by Mr Galbraith's evidence that this was necessary having regard to the health of the trees. The landscaping proposed by Ms Manion will as it becomes established be an improvement on the current landscaping. The species have been carefully chosen to integrate with the landscaping of the area as well as respond to winter and summer solar conditions.

- Also of concern to the surrounding property owners and occupiers was disturbance to amenity by the noise generated by student activities. Mr Jackson was in particular concerned about an entry point on the eastern side of Building 3B where he believed students might gather.

In our view there should be no major disturbances in this regard. We accept the evidence given that whether or not the housing is used for overseas students, the studious nature of the occupants would ensure that no disturbing behaviour occurs. We were also persuaded that the development of a management plan would allow adequate behavioural regulation. In so far as Mr Jackson's concerns about the entry point to Building 3B are concerned, we note that it only serves two units and that this is not expected to lead to any major congregation of students. In general we would observe that the buildings are distributed around the site in such a way that any disturbance by persons coming or going is shared amongst a number of surrounding properties, and in this way no one property will be severely affected.

Another matter which relates to this issue was whether or not the proposed buildings would be let out to others in out of term times, and the behavioural consequences of this. Still others were concerned that the buildings would be vacant out of term time and this would not be appropriate in terms of neighbourhood safety. The evidence given by Mr Wilson indicated that the housing is likely to be continuously occupied. We do not have any reason to believe, however, that the temporary occupants would be any more likely to engage in anti-social behaviour than other members of the community.

- There were also concerns about the noise of vehicles accessing the site and air pollution consequences. So far as noise is concerned we agree with the suggestion that there be an acoustic fence along the southern boundary of the leg of the subject land which leads to Varcoe Close, abutting the car park. This is the only location in which we believe this is required as it is the only place where parked vehicles directly abut a boundary and where the nature of development on the surrounding properties does not of itself act as a shield to noise. In relation to the Treloars' concerns about increased air pollution, we are of the view that additional vehicles accessing an expanded car park adjacent to their property will not appreciably increase pollution levels. There is proposed to be an intervening fence and substantial landscaping. The Treloars already have a high level solid fence along their western boundary, and their garage is located to the rear of the property.

- Garbage collection and bin storage are matters which can be resolved by condition. Indeed the draft conditions prepared by the Responsible Authority have so provided.

- Noise from the common laundry facilities was raised as an issue. The amended plans address this by provision of a brick wall for this building.

These effects for the wider community are perhaps the most significant issues to be addressed.

- The surrounding residents were particularly concerned about the traffic to be generated by the large numbers of residential units to be provided on the site. However, it was Mr Grogan's evidence that while there is a relatively significant increase in morning peak hour traffic volumes in Crisp Place and Varcoe Close in relative terms (60% and 43% respectively), the overall traffic generation from the development could be catered for on the surrounding network with minimal impact on existing operating conditions.

Mr Grogan provided advice about anticipated traffic generation levels for the development. His calculations were based on surveys at Monash University halls of residence. Those surveys revealed a peak hour traffic generation rate of 0.09 to 0.14 vehicle movements per bedroom at the surveyed sites. He was of the view, however, that traffic generation by the subject development is likely to be lower than that recorded at Monash, because car ownership levels per bedroom are likely to be lower (given the intention that a higher proportion of the students would be from overseas), and car park areas within Deakin University have a daily charge, thus encouraging walking to and from the campus The areas of the University are accessible by foot within 15 minutes walking time of the proposed student housing. Mr Grogan calculated that the daily traffic generation for the proposed development as a whole would be in the order of 86 vehicle movements per day. He noted that this would be comparable to the traffic generation of the land if it were instead developed for medium density housing (13 dwellings at perhaps eight vehicle movements per day per unit). We accept Mr Grogan's evidence that the proposed student housing would not unreasonably overload the road capacity of the locality. We are also of the view that the additional traffic generated would not significantly alter the amenity levels of surrounding residential properties. It is to be noted that in Varcoe Close the existing morning peak traffic volume is 14 vehicles and this would be increased to only 20. The evening peak increase would be from 21 to 26 vehicles.

- This matter of traffic generation, raises a further issue which requires our attention. Mr Treloar suggested at the hearing that an agreement had been made by the Ministry for Housing as developers of the Orana Children's Home site with himself and/or the Responsible Authority that the traffic volumes on Varcoe Close would be limited. Indeed, Mr Peake provided to us at the appeal hearing a copy of an agreement made pursuant to Section 52A of the Town and Country Planning Act 1991 of December 1994. That agreement apparently relates to the Orana land which is described as 87 Elgar Road Burwood. The agreement is made between the Director of Housing and the Minister for Planning and Environment (as the Responsible Authority for the Planning Scheme at the time). The agreement includes that the Director of Housing covenants with the Responsible Authority that:

"(a) Not more than 25 units shall be constructed upon any part of the subject land which has, directly or indirectly by means of any path, lane, street or road access to and egress from any road connected with Uganda Street and passing between the lands known as and situate at Nos. 14 and 18 Uganda Street Burwood."

The agreement also provides that the Director of Housing agrees to do all things necessary to enable the Responsible Authority to enter a memorandum of the agreement on the certificate of title to the land in accordance with Section 52B of the Town and Country Planning Act. The agreement further provides that it will lapse upon cessation of the use and development of the subject land for the purpose of residential development.

That agreement of the 4th of December 1985 was signed by the then Minister for Planning, Evan Walker. It is also signed by an officer of the Ministry for Housing to whom the Director of Housing had delegated the appropriate power.

Mr Treloar also forwarded after the hearing a copy of that same agreement and another dated the 29th of May 1986 which so far as we can ascertain, is in identical terms. That May version of the agreement is signed by the Director of Housing and by the then Minister for Planning, Jim Kennan.

Extracts of Hansard of late 1985 were also forwarded by Mr Treloar. They suggest that while subdivision of the Orana site at 87 Elgar Road was intended to be conditional upon the prior completion of this agreement, as required by the decision in Appeal P84/0828 and P84/0829 I. & B. Wood and Others v Melbourne and Metropolitan Board of Works and City of Box Hill and Ministry for Housing (unreported decision of the Planning Appeals Board), it seems that the agreement was not entered into before the land was subdivided. The Hansard extracts suggest, however, that remedial action was to be taken to overcome this failure to comply with the permit, and not least, to avoid the Minister for Planning having to respond to a request to take enforcement action against the Ministry for Housing. The December 1985 and/or May 1986 agreements appear to be the result.

It is not clear to us, however, whether or not that agreement was ever attached to the title to the land at 87 Elgar Road. It is also not clear whether the subject site of the application now before the Tribunal was part of the site at 87 Elgar Road. Further, there are interpretation difficulties associated with the agreement including the reference to "units" as part of the covenant, and how that might affect the proposed student housing. It is also unclear whether the agreement has lapsed in accordance with its own terms. It may be that the "agreement" was or is now nothing more than a general statement of intent leading to certain expectations by the residents.

Section 52A of the Town and Country Planning Act was the precursor to the provisions now contained at Section 173 of the Planning and Environment Act 1987. Both relate to agreements which may be made between land owners and responsible authorities and others which are then imposed as a restriction on the land title, and run with the land. Applications may be made to this Tribunal for enforcement of those agreements. In as much as this Tribunal has that enforcement role to play under the Planning and Environment Act, as well as the determination of applications for review of permit decisions by Councils, it would be (at least) inappropriate that any decision in relation to a permit review led to circumstances where there was a breach of an agreement made under those related legislative provisions.

There are other processes for modifying or removing agreements of this kind from land titles. See Sections 177 and 178 of the Act. We propose to deal with this issue of the possible existence of the covenant by imposing a condition on the permit granted below for the housing development, which will allow the development to proceed only after any such restriction on the title to the land and which is in conflict with the approval granted, is removed or varied.

- The adequacy of on-site parking is another matter which has required careful consideration in relation to this application. This is because the surrounding street network provides limited opportunity for overflow parking if on-site facilities are inadequate. Mr Grogan addressed this matter as part of his evidence. Again he relied on surveys undertaken at the Monash University halls of residence. While at least one of the objectors suggested that such surveys were inadequate, we feel that only the substantial difference in the size of the parking areas which were surveyed, may lead to them not being completely relevant. Nevertheless we believe that the results are indicative and give a conservative prediction for parking demand on the subject land.

These surveys indicated that there was a parking demand of between 0.28 and 0.30 spaces per bedroom at the Monash facilities. Overall visitor demand was found to be 0.09 spaces per occupied bedroom. Mr Grogan also reported that surveys undertaken earlier by his firm at Latrobe University had indicated similar results, with a peak parking demand of 0.27 cars per occupied bedroom. Mr Grogan adopted a 0.3 car spaces per bedroom and a conservative visitor demand of 0.1 space per bedroom to calculate an anticipated parking demand for the proposed housing as a whole of 26 car spaces. He also anticipated that there would be demand for two parking spaces for administrative staff giving an overall demand for 28 spaces. This contrasts to the proposed on-site provision of 34 spaces (later modified to 32).

At the hearing there were concerns raised that the Monash figures were influenced by the fact that only 55% of the students were drawn from Australia, with 45% being overseas students. It was argued that overseas students would have a lower level of car ownership. Thus if there was a higher representation of local students in the Burwood housing, car ownership and consequent parking demand may be higher. Weight was lent to this argument by the fact that the lower parking to bedroom ratio revealed by the Monash surveys of (0.28 spaces per bedroom) occurred at a hall of residence exclusively occupied by overseas students.

Mr Grogan provided some further figures concerning car parking by various types of students upon our request after the hearing. That material included that the Monash local students generated car parking demand at a rate of 0.32 spaces per bedroom. If this were applied to the 66 bedrooms now proposed, a demand for 21 spaces would occur - well short of the proposed supply.

It is to be noted that the proposed supply was also reduced to 32 spaces because of a modification to the layout of the western car park required to improve car space dimensions and access arrangements. Mr Grogan forwarded after the hearing a copy of the revised car parking layout (Plan TPA7) and Ms Manion also forwarded a revised landscaping plan for the western car park responding to the new layout. Nevertheless Mr Grogan noted that the modified design produces a car park ratio of 0.45 spaces per bedroom - well above the anticipated demand likely to be generated.

We have considered the further submissions by Mr Grogan and the response provided by others to that further material. We are satisfied that the on-site parking provision is quite adequate to meet the anticipated demand by the student occupants.

* A final matter which was raised by the objectors is whether other residential use might be made of these buildings if student occupancy were abandoned. In response to this concern, and the consequences such a change might have for parking demand and traffic generation, we have included on the permit granted below restrictions tying the residential use to student occupancy. Those restrictions are designed to ensure that under the current Planning Scheme arrangements, a further permit would be required if the dwellings were to be used for non-student purposes (other than in an ancillary way to the primary use of the land for student housing). This process would enable input by affected persons.

With the introduction of the Victoria Planning Provisions-based Scheme for the municipality, however, the subject site would be zoned Residential 1. In that zone, the use group "accommodation" with certain exceptions, requires planning permission. The use group includes a residential building or group housing. When the new Planning Scheme would be introduced, however, the use of the land would be subject to the provisions of Clause 63.05 relating to existing uses lawfully pre-dating the Scheme. That clause would impose the requirement that "any condition or restriction to which the use was subject and which applies to the use in Section 2 of the zone continues to be met". Thus the restriction that the accommodation be used for student purposes would need to continue to be met, unless a further planning permit were granted.

* The Responsible Authority's principal submission to the Tribunal hearing, which was made in response to the plans as first amended at the end of 1998, raised significant concerns about the liveability of the proposed units for future occupants. In particular Mr Peake raised concerns about the southern orientation of the principal living areas, and lack of solar access, cross-looking between buildings, poor daylight to the interior of the units, particularly where windows were to be overhung by balconies or upper level structures. When the mid-January plans were substituted for consideration in the proceedings, however, as we have earlier noted, the Responsible Authority indicated that they no longer had concerns about the amended plans. Mr Peake's submission to the second day of the appeal hearing included that the Responsible Authority had noted that the further amended plans had reoriented windows, deleted bedsits and deleted walkways above and adjacent to windows. He also indicated that he believed that the issue of cross-looking had been satisfactorily addressed.

We concur with the Responsible Authority's assessment of the adequacy of the units in terms of the amenity offered for future occupants. While there remain a large number of southern oriented bedrooms, in all cases, principal living rooms have northern or eastern and western orientation, and stairways are located away from windows. The only concern we have in relation to the liveability of the units is the screening of the bedroom windows which was proposed in no less than 13 cases. We are prepared, however, to accept directional screens as not significantly eroding internal amenity, and have required the modification of the screens on the southern face of Building 3B, which were proposed to completely preclude an outlook.

At the conclusion of the Tribunal hearing, we requested that the Responsible Authority prepare a draft of conditions which might be included on any permit granted. The other parties to the proceeding were afforded the opportunity to respond to the draft conditions. That process has now been completed. Final submissions were received in mid-March. The Responsible Authority's draft and the comments thereon have formed the basis of the conditions we have included on the permit granted below. We have made some modifications of our own.

The order of the Tribunal is that the Responsible Authority's decision is set aside. A permit is granted for the use of land at 2 Varcoe Close and 8 Uganda Street, Burwood, for the purpose of residential buildings (student housing) with associated car parking and landscaping in accordance with the endorsed plans and subject to the following conditions:

1. Before the use or development starts, or vegetation is removed, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions, and two copies must be provided. The plans must be generally in accordance with the plans adopted for consideration by the Tribunal at the hearing of Application for Review 1998/066522 on 28th January 1999 (a copy of which is held on the Tribunal file and endorsed accordingly) being:

(b) Drawing No. 9855 TPA2 Rev. D Ground floor plans

(c) Drawing No. 9855 TPA3 Rev. D. First floor plans

all prepared by Nicholas and Alexander Architects, but modified to show:

(i) bicycle racks for the use of residents of which the number and location shall be to the satisfaction of the Responsible Authority;

(ii) the northern setback of Building 6 increased to at lease 0.8m to allow reasonable maintenance access;

(iii) an acoustic fence along the southern boundary of the site adjacent to the Varcoe Close car park, commencing at a point directly north of the north-eastern corner of the existing garage at the rear of 14 Uganda Street and proceeding easterly to a point adjacent to the eastern edge of the Varcoe Close car park. The height, appearance and acoustic properties of the fence must be to the satisfaction of the Responsible Authority;

(iv) the revision to the layout of the Varcoe Close car park as shown on Drawing 9855 TPA7;

(v) alterations to the screens to the upper floor south-facing windows in Building 3B, so that the maximum height of the screens does not exceed 1.3m above first floor level; and

(vi) landscaping of the site generally in accordance with the landscape plan prepared by Ms Rosemary Manion and tabled at the hearing of Application for Review 1998/066522, as modified by the revised plans for the Varcoe Close car park shown on Drawings RM9-1a and 2d for Job 9811/6 prepared by Ms Manion.

2. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3. Prior to the occupation of the buildings, the operator under this permit must establish a management plan for the site to the satisfaction of the Responsible Authority having regard to the views of the owners and occupiers of properties abutting the subject site. The plan must not be modified without the written consent of the Responsible Authority. The plan must cover the following points, but may include other points:

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

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

(iv) residents and visitors must be advised by such means as are approved by the Responsible Authority not to park in nearby streets;

(v) disciplinary action that may be taken against any resident that parks his/her vehicle in nearby streets;

(vi) a requirement that all of the car parking spaces provided on the site are generally available on a shared basis, and that no car parking spaces be allocated to particular units;

(vii) details of disciplinary action that may be taken against residents for breaches of house rules;

(viii) provision for servicing and cleaning of the apartments (apartments should be treated as individual rooming houses with the common areas of lounge room, dining room, kitchen, bathroom and toilet being cleaned by the Manager);

(xi) the convening of meetings on a needs basis but at least every two years between the operator under the permit and surrounding residents to discuss management issues.

On-site operations and activities are thereafter required to comply with the management plan to the satisfaction of the Responsible Authority.

4. A telephone number with 24 hour access to the management of the student accommodation must be displayed upon the front wall of the administration building fronting Uganda Street, in order that any neighbouring resident can register a complaint or address any other matter arising from the use of the site as student accommodation.

5. No more than 70 persons are permitted to reside in the residential buildings on the site at any one time except with the further written consent of the Responsible Authority.

6. No person may reside in the residential buildings unless that person is a bona fide student, whether part-time, full-time or short-term, a member of the teaching staff at any registered educational establishment in Victoria, or is required to reside at the complex in a supervisory, management or caretaker capacity.

7. The amenity of the area must not be detrimentally affected by the use or development, through the:

(i) transportation of materials, goods or commodities to or from the land;

(ii) appearance of any building, works or materials;

(iii) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot ash, dust, waste water, waste products, grit or oil;

8. The site must be so ordered and maintained that it does not prejudicially affect the amenity of the locality by reason of appearance.

9. Alarms (except fire alarms) must be directly connected to a security service and must not emit noise which is audible beyond the site.

10. Drainage must be provided to the satisfaction of the relevant building surveyor. It will be required by means of an underground pipe drainage system designed on the basis of a 10 year average storm recurrence interval and discharging into an approved outlet in a street or an underground pipe drain to the requirements of the Responsible Authority.

11. Any new power and telephone connection between units on the land or between the front unit and the point of connection within the road reserve shall be concealed.

12. The development shall be provided with external lighting capable of illuminating access to each car parking space. This and other external lighting must be located, directed and shielded and of limited intensity so that no nuisance or loss of amenity is caused to any person within and beyond the site.

13. All piping and ducting, except stormwater downpipes, above the ground floor storey of the building shall be concealed.

14. Not less than 32 car spaces must be provided on the land, in accordance with the endorsed plans.

15. The car parking areas and accessways as shown on the endorsed plans must be formed to such levels that they may be used in accordance with the plans, and must be properly constructed, surfaced, drained and line marked. The car park and driveways must be maintained to the satisfaction of the Responsible Authority.

16. The car parking spaces provided on the site are to be available on a shared basis and not allocated to particular units or individuals, except with the consent of the Responsible Authority.

17. Any rooftop plant and equipment on the buildings on the site must be screened and/or located so that they are of limited visibility from Varcoe Close and Uganda Street to the satisfaction of the Responsible Authority.

18. Landscaping in accordance with the endorsed plans must be completed within six months of the issue of a certificate of occupancy.

The Council's Planning Inspector must be advised of the completion of the landscaping so that a site inspection can be carried out. A further inspection will be carried out six months after the completion of the landscaping to ensure that species have been adequately maintained.

19. The garden areas shown on the endorsed plan must only be used as gardens and must be maintained in a proper, tidy and healthy condition to the satisfaction of the Responsible Authority. Should any tree or shrub be removed or destroyed it may be required to be replaced by a tree or shrub of similar size and variety. An automatic irrigation system must be installed for all garden and lawn areas.

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

(a) The development and use is not commenced within two (2) years from the date of issue of this permit;

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

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

21. Before the development begins, any restriction upon the title or titles to the land prepared pursuant to Section 52A of the Town and Country Planning Act 1961 or Section 173 of the Planning and Environment Act 19987, which would be breached if the use and development of the land proceeded in accordance with this permit, must be removed or varied so as to preclude such a breach.