APPLICANTS (Permit Applicants): O'Connell Street Developments Pty Ltd

DATES OF HEARING: Monday 17, Tuesday 18 and Thursday

Medium Neutral Citation [2003] VCAT 448

With respect to permit application no. PL02/0664, a permit is granted for use and development of an office, dwellings and associated car parking provision in accordance with the endorsed plans on land at 49 - 51 Stewart Street Richmond. The permit must include the following conditions:

1. Before the development starts, 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 three copies must be provided. The plans must be generally in accordance with the advertised plans received in December 2002 and numbered TP01 to TP11 inclusive and endorsed Revision C, except for TP03 and TP07 which were endorsed Revision B, but modified to show:

a) Plans and elevations to show the full extent of demolition proposed.

b) A schedule of construction specifications indicating the construction of the proposed residences to be in accordance with the relevant Australian Standards for acoustic control, and specifically limiting internal noise levels to a maximum of 45dB(a).

c) All proposed external plant and equipment (including roof top plant and equipment) concealed from view from below and acoustically baffled.

d) Details and specifications of a bicycle storage system, supplemented by supporting documentation.

e) Baffling to existing street lighting to prevent light spill to the proposed dwellings, designed in accordance with the specifications of the relevant road authority.

f) A notation showing reinstatement of all redundant crossovers.

h) A schedule of all external materials and finishes (including colour and material samples) showing materials, colours and finishes to all external wall, roof, fascias, window frames, glazing types, doors, fences, paving, outbuildings and structures, with glazing being non reflective.

i) A schedule detailing the car park allocation for dwellings, office and visitors, which must include two car parking spaces for offices and five car spaces for visitors.

j) Provision of mirrors to improve visibility for vehicles entering and exiting at the bends of the ramps to car parks, and in the vicinity of the 3 metre wide section of car park adjacent to the lift.

k) The existing Tennyson Street entrance opening retained and closed with a grill or similar structure at the building face.

l) Retention of timber frames to the front section of the existing building.

m) Deletion of the copper canopy to Tennyson Street, and provision of a canopy over the entrance.

n) Deletion of reference to "steel bars to windows" and retention of the existing window frames, without glazing, and screens behind to provide natural ventilation.

o) Retention of the glazing above the proposed tilt up door at east face third bay.

p) Deletion of the reference to re-glaze with `opaque' glass, and replacement with simple obscure or translucent glazing.

q) The door at the centre of the east face blocked in as a panel, and retention of the threshold if this is original.

r) Retention of existing sloped sills on the fifth window bay in Tennyson Street.

s) Retention of the "Henry Bucks" sign on the front parapet, and retention of any other early signage recovered on cleaning back the wall face.

u) Widening of the openings from Tennyson Street, for vehicles to enter and leave the car park areas, to 4.2 metres.

v) Use of curved walls to adjacent dwellings to improve connectivity between living areas and balconies for Dwellings 13, 15, 8, 23, 25 and 28, generally in accordance with the Buckerfield Pty Ltd sketches retained on the Tribunal file.

w) Use of glass blocks for bathroom and bedroom windows of Dwellings 14, 19, 24 and 29 to maintain privacy, generally in accordance with the Buckerfield Pty Ltd sketches retained on the Tribunal file, or deletion of those windows.

x) Modification of Dwellings 3, 11, 21, 31 and 41 to increase the setback and improve solar access for balconies, generally in accordance with the Buckerfield Pty Ltd sketches retained on the Tribunal file.

y) The provision of suitable facilities to facilitate access for disabled persons into the building.

z) Modifications to west facing windows and balconies to minimise the potential for direct viewing to and from the AKM building

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

3. All areas set aside for parked vehicles and access lanes as shown on the endorsed plans must, to the satisfaction of the Responsible Authority, be:

b) Formed to levels and constructed, line marked, sealed, illuminated and drained.

4. Any existing vehicular crossing made redundant by the building and works depicted on the endorsed plans must be broken out and reinstated as standard footpath and kerb and channel to the satisfaction of the Responsible Authority and at the permit holder's expense. Any new vehicular crossings must be constructed to Council's standard vehicular crossing specification.

5. All damaged roads and footpaths adjacent to the development site must be reinstated to the satisfaction of the Responsible Authority.

6. Before the construction or carrying out of buildings and works in association with the residential uses commences, either:

a) A Certificate of Environmental Audit or a statement indicating that the land is suitable for residential use must be issued for the land in accordance with Section 57AA(5)(b) of the Environment Protection Act, 1970; or

b) An environmental auditor appointed under the Environmental Protection Act, 1970 must make a statement in accordance with Section 57AA(5)(b) of the Act that the environmental conditions of the land are suitable for the proposed sensitive use.

7. Prior to the occupation of dwellings a letter must be submitted to the Responsible Authority by an Environmental Auditor accredited with the EPA, to advise that all construction and remediation works necessary and required by an environmental audit or statement have been carried out.

8. Disposal of soil removed from the site during the construction phase must comply with EPA requirements for off-site disposal for potentially contaminated soil (ie EPA Publication No. 626, October 1998.).

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

a) The transport of materials, goods or commodities to or from the land.

b) The appearance of any buildings, works or materials.

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

10. The loading and unloading of vehicles associated with the commercial premises must be carried out entirely within the site.

11. Alarms associated with the commercial premises must be directly connected to a security service and must not produce noise beyond the premises.

12. Rubbish, including bottles and packaging material, must at all times be stored within the building and screened from external view. All waste collection for both residential and commercial uses on site must be undertaken by private contractors.

13. Storm water drainage of the property must be provided to the nearest Council pit of adequate depth and capacity, to the satisfaction of the Responsible Authority.

14. Areas must be provided inside the property line and adjacent to the footpath to accommodate pits and meters, and private pits, valves and meters must not be located on council property.

15. During the construction phase of the development, the following conditions must be met, to the satisfaction of the Responsible Authority:

a) Only clean rainwater may be discharged to the stormwater drainage system.

b) Stormwater drainage system protection measures must be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises enters the stormwater drainage system.

c) Vehicle borne material from the premises must not accumulate on the roads abutting the site.

d) All machinery and equipment must be cleaned (if required) on site and not on adjacent footpaths or roads.

e) All litter (including items such as cement bags, food packaging and plastic strapping) must be contained within the site boundaries, and disposed of responsibly.

16. Before the development starts a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the Plan will be endorsed and will then form part of the permit. Three copies must be provided. The Plan must address, but not be limited to, the following:

a) Site contamination and disposal of contaminated matter.

b) Containment of dust, dirt and mud within the site, and the method and frequency of clean up procedures in the event of build up of matter outside of the site.

e) Delivery and unloading points and expected frequency.

f) A liaison officer for contact by residents and the Responsible Authority in the event of relevant queries or problems experienced.

g) An outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services.

h) Any requirements outlined within this permit as required by relevant referral authorities.

17. Except with the written consent of the Responsible Authority, demolition, or construction works must only be carried out between: 7am - 6 pm, Monday - Friday (excluding public holidays) and 9 am - 5pm, Saturday and public holidays. No works are to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environment Protection Authority's Guidelines on Construction and Demolition Noise.

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

a) The development is not started within two years of the date of this permit.

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

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

The Responsible Authority is directed to issue a permit in accordance with this Order, pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.

PLANNING AND ENVIRONMENT LIST PLANNING AND ENVIRONMENT LIST

For the Responsible Authority: Mr A Hooper, QC and Mr A Hooper of Counsel,

Milner, a Consultant Planner, as an expert witness.

For the Minister for Planning Mr M Dreyfus, QC, and Mr J Smithers, Solicitor,

(who was joined as a party): instructed by the Victorian Government Solicitor

Respondents/Objectors: Mr D Gabbedy, Ms T Blazey, Mr S Coxon,

For the Applicants for Review/ Mr J Gobbo, QC, and Ms S Brennan of Counsel,

Permit Applicants: Counsel, by direct brief. Mr Gobbo and

1. This is an application under Section 79 of the Planning and Environment Act 1987 ("the Act") brought by the permit applicant against the Yarra City Council's ("the Responsible Authority") failure to grant a permit within the prescribed time in relation to planning permit application no. PL02/0664. The permit application seeks permission for the use and development of the subject land for the purpose of office, residential apartments and associated car parking.

2. By letter dated 12 March 2003, Maddocks, solicitors for the Responsible Authority, advised the Tribunal and the other parties of a question of law arising in respect of the application. The letter referred to the Tribunal determination in Ashlyn Enterprises Pty Ltd v Yarra City Council (P1856/2002 - 24 February 2003) and requested that a legal member determine the question of law which was stated as:

"What is the legal status of the document(s) known as Melbourne 2030."

3. At the commencement of the hearing, Deputy President Horsfall joined the Members of the Tribunal constituted for the hearing of the merits of the planning application to consider directions in respect of the determination of the question of law.

4. At that time Mr J Smithers appeared for the Minister for Planning.

5. After hearing from the parties, orders were made that:

* the Minister for Planning be joined as a party, and

* pursuant to Clause 66 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the question of law be referred to Judge Higgins and Deputy President Horsfall for determination with submissions on this question to be heard on Wednesday 19 March 2003.

6. After discussion, additional issues associated with the question of law were identified as follows:

* Is Melbourne 2030 a strategic plan, policy statement, code or guideline adopted by a Minister in terms of Section 60(1)(b)(ii) of the Planning and Environment Act 1987?

* Is Melbourne 2030 a seriously entertained planning proposal?

* Has Melbourne 2030 been adopted within the meaning of Section 60(1)(b)(ii) of the _Planning and Environment Act 1987_and how?

* The applicability of the decisions in Australian Aluminium Shop Fitters and Lyndale and Black.

* The extent of public consultation before and after the adoption of Melbourne 2030.

* The appropriate legal criteria to be applied in deciding the weight to be given to Melbourne 2030.

7. At the hearing on 19 March 2003 before Judge Higgins and Deputy President Horsfall, Mr A Hooper QC made submissions for the Responsible Authority, Mr M Dreyfus QC instructed by the Victorian Government Solicitor made submissions for the Minister and Mr J Gobbo QC for the Applicant/Permit Applicant. No objector appeared at that hearing or made submissions. No evidence was adduced in the hearing of the question of law although some documents were tendered.

8. At the end of the hearing on that day the parties present consented to a proposal that, at the conclusion of the hearing of the merits of the application of review by Senior Member Sharkey and Member Cimino, the Tribunal be reconstituted to comprise Judge Higgins, Deputy President Horsfall, Senior Member Sharkey and Member Cimino pursuant to Section 108(6) of the Victorian Civil and Administrative Tribunal Act 1998, that the matter be determined without further hearing and that the reconstituted Tribunal have regard to any record of the proceeding in the Tribunal as previously constituted. At the end of the merits hearing before Senior Member Sharkey and Member Cimino, Mr Rantino for the Responsible Authority lodged a formal request for reconstitution to the same effect and the Tribunal was reconstituted accordingly on 2 April 2003. No further hearing took place.

9. The site and the area have been inspected and Judge Higgins and Deputy President Horsfall have had regard to the record of the proceedings as requested.

10. The parties' respective positions can be summarised as follows:

* Melbourne 2030 is a Strategic Plan and policy statement which has been adopted by State Government, and the Tribunal is required to consider it under Section 60(1)(b)(ii) of the Planning and Environment Act 1987;

* Melbourne 2030 in so far as it is an adopted strategic plan and policy statement is a seriously entertained plan, and to the extent that it proposes amendments to the planning scheme is a seriously entertained planning proposal, and

* The Tribunal should give substantial weight to Melbourne 2030.

Melbourne 2030 is in an embryonic state, the planning scheme has not been amended to give effect to it, and little if no weight should be given to it at the present time.

* The proposal is justified by the existing provisions in the planning scheme;

* It does not need to rely on Melbourne 2030 to justify the proposal;

* It does not see the debate on the question of law to be relevant for the proceedings, and

* If Melbourne 2030 is relevant it supports the proposal.

11. The issues are discussed under the following headings:

12. The other parties did not contest Mr Dreyfus' submissions that the documentation comprising Melbourne 2030 is as follows.

* Melbourne 2030 - Planning for Sustainable Growth dated October 2002 ("Metropolitan Strategy " - See definition in Ministerial Direction No 9).

* Draft Implementation Plan 1 - Urban Growth Boundary dated October 2002.

* Draft Implementation Plan 2 - Growth Areas, dated October 2002.

* Draft Implementation Plan 3 - Housing dated October 2002.

* Draft Implementation Plan 4 - Activity Centres dated October 2002.

* Draft Implementation Plan 5 - Green Wedges dated October 2002.

* Draft Implementation Plan 6- Integrated Transport dated December 2002.

* Advisory Note - Implementation in the Planning System, dated October 2002.

("Melbourne 2030" means all the documents, and "Implementation Plans" means the draft Implementation Plans and the Advisory Note including the draft Clause 12 in the Advisory Note.)

13. There is also a summary dated October 2002, a CD containing the documents and publications on the Department of Sustainability and Environment's website.

Distinction Between the Metropolitan Strategy and the Implementation Plans

14. Mr Dreyfus submitted there is a distinction between the first document, the Metropolitan Strategy, on the one hand and the Implementation Plans relating to implementation and further consultation. Whilst the status of the documents was contested, the distinction was not.

15. It was acknowledged by the parties that the Metropolitan Strategy or any aspect of the Implementation Plans (except the designation of the Urban Growth Boundary pursuant to Ministerial Direction No 10) do not as yet form part of the Yarra Planning Scheme as an incorporated or reference document or as an amendment.

16. Mr Dreyfus further submitted, and in doing so made a detailed comparison between the structure and text of the Metropolitan Strategy and the Implementation Plans, that the draft Clause 12 is on its face a restatement or translation of the Metropolitan Strategy as a State Policy in the State Planning Policy Framework ("SPPF"). We accept this proposition.

Section 60(1)(b)(ii)

17. The next issue is what status does the Metropolitan Strategy have under Section 60(1)(b)(ii) of the Act which reads as follows:

"60. What matters must a responsible authority consider?

(1) Before deciding on an application, the responsible authority--

(b) if the circumstances appear to so require, may consider--

(ii) any strategic plan, policy statement, code or guideline which has been adopted by a Minister, government department, public authority or municipal council; and

18. Mr Hooper did not concede that any part of Melbourne 2030 had been adopted by the Minister. Mr Dreyfus said his instructions were that the Minister had adopted the Metropolitan Strategy.

19. However, clause 4 of Ministerial Direction No 9 provides that in preparing a planning scheme amendment, a planning authority must (inter alia) have regard to the Metropolitan Strategy. The Tribunal is also aware that the Minister has publicly announced Melbourne 2030. Produced were letters to the Tribunal and to all Municipal Councils on 7 and 8 October 2002 to apply and implement Melbourne 2030 and Hansard of 9 October 2002 records the Minister's statement about Melbourne 2030 as "A Matter of Public Importance". Signatures of the Premier, the Minister and other members of the Cabinet appear in facsimile on the Melbourne 2030 documents.

20. On the above material we find, and in doing so accept Mr Dreyfus' instructions on behalf of the Minister, that the Metropolitan Strategy has been adopted by the Minister and that it is a "strategy plan ... which has been adopted by a Minister....." for the purposes of Section 60(1)(b)(ii) of the Act.

21. We accept Mr Dreyfus' submission that in Section 60(1)(b)(ii) of the Act the word "adoption" has its ordinary English usage meaning and not the technical meaning of Part 3 Division 3 Sections 29 - 39 of the Planning and Environment Act 1987 for the adoption and approval of amendments to a planning scheme.

Section 60(1)(b)(ii) - "must" or "may" consider

22. Mr Hooper submitted that the opening words of Section 60(1)(b) "if the circumstances appear to so require, may consider" conferred on the Tribunal a discretion to consider the matters set out. Mr Dreyfus contested this and said that if the Tribunal found that "the circumstances appear to so require", the Tribunal must consider the matter. Mr Dreyfus relied on the decision of the Supreme Court of Victoria in RSL (Victorian Branch) Inc., Glenroy Sub-Branch v Moreland City Council [1998] 2 VR 406 as authority for the proposition that if the Tribunal finds that if the circumstances do require, then the Tribunal must consider the relevant plan or other matter. See Hayne JA at pages 413 - 4.

23. Mr Gobbo relied on Section 60(1)(b)(iii) and argued that if the matter was relevant under (iii), as the Metropolitan Strategy in his view was, the Tribunal is also required to consider it.

24. We agree with Mr Dreyfus, that that decision is authority for the proposition that if the Tribunal finds that if the circumstances do require then the Tribunal must consider the relevant plan or other matter.

Tests for Giving Weight - Australian Aluminium Shop Fitters and Lyndale & Black decisions

The test applied for seriously entertained planning proposals can be found in appeal decision P82/1162, 30 December 1982 - Australian Aluminium Shop Fitters and Glazing Company Pty Ltd v City of Fitzroy."

26. Page 1 also states:

"Melbourne 2030 has been adopted by the Victorian Government and sets out the Government's position on many issues relevant to land use and transport planning.

Melbourne 2030 has the status of a seriously entertained strategic plan and policy statement that should be considered in planning decision making where relevant."

27. The parties agreed with the proposition that decisions by the Tribunal on whether "the circumstances so require" under Section 60(1)(b) and the weight to be given to a proposed amendment to a planning scheme, policy or code are an exercise of discretion by the Tribunal and not decisions on questions of law.

28. Also not contested was that the decision of the Planning Appeals Board in Lyndale and Black Pty Ltd and I O Black v MMBW (P82/1729 and P82/1730) [1983] 7 APAD at 470 sets out principles that a planning authority and the Tribunal should consider in deciding the weight to be given to a planning proposal. Legislative effect has since been given to that decision by Section 60 (1)(b)(ii) and Section 84B(1)(f) of the Act, the latter which states:

"84B(1) In determining an application for review under this Act, the Tribunal-

(f) must (where appropriate) have regard to any amendment to a planning scheme which has been adopted by the planning authority but not, as at the date on which the application for review is determined, approved by the Minister;"

but the decision continues to be regarded as an authority setting out principles as to the weight to be given.

29. The following passages of Lyndale & Black are relevant.

"For many years the courts have held that the existence of a "seriously entertained planning proposal" is an important circumstance to be taken into account in the exercise of planning discretion. The leading case is Coty (England) Pty Ltd v Sydney City Council (1957) 2 L.G.R.A. 117. In that case the Land and Valuation Court of New South Wales held that a development proposal should be refused, although it had many desirable features, because it would be prohibited under a draft planning scheme."

"The principle that planning proposals should not be compromised is based upon a number of considerations. Firstly, it is important to protect the integrity of a proposed planning scheme. Such an approach minimises the number of nonconforming uses of land in the long run. Secondly, haphazard departures from a draft planning scheme make the maintenance of the plan difficult as a matter of administration. Thirdly, the principle recognises that the primary responsibility for planning policy rests with the responsible authority and the State Government and not with an appeals body such as the Planning Appeals Board."

"The true position is that a proposed change to the operative planning controls is a relevant consideration to be taken into account, whether or not the planning proposal is in the form of an adopted amendment to a planning scheme. However, the weight that should be given to such a planning proposal will vary according to a number of factors. Some of these factors are:

(a) The form of the planning proposal - a formal planning scheme amendment will be given much more weight than a planning proposal of a less formal nature.

(b) The stage which the planning proposal has reached in the planning process - greater weight will be given to a planning proposal which has reached an advanced stage in the planning process than to a proposal of an embryonic nature.

(c) The seriousness with which the responsible authority or State Government is pursuing the implementation of the planning proposal.

(d) Whether the grant of a permit would impair the objectives of the planning proposal and not merely be inconsistent with the strict letter of the planning proposal.

(e) The nature of the development or use for which a permit is sought - for example: a planning proposal will generally have greater weight when a permit is sought to develop vacant land or to subdivide land than when a permit is sought to use an existing building especially for temporary purposes.

This list is not intended to be an exclusive list of relevant factors that may determine the weight that should be given to a planning proposal."

30. We also consider that the factors for assessing weight set out in Lyndale & Black are relevant in considering the weight to be given to a strategic plan, policy statement, code or guideline under Section 60(1)(b)(ii).

31. Australian Aluminium Shop Fitters and Glazing Contractors Pty Ltd v City of Fitzroy [cited above] is a 1982 decision considering whether the then Planning Appeals Board should give weight to a code adopted by the local authority. In it the then Board Member, Mr Marsden, now a Senior Member of this Tribunal, set out factors the Board should consider in the exercise of its discretion in applying such a policy or code. At page 49 he said:

"If the discretion available is to be exercised in favour of the Responsible Authority in circumstances such as this, this Division of the Board is of the view that it must be assured that several necessary prerequisites have been fulfilled. Firstly, it is apparent that a policy or code should be based upon a specific and thorough research of the relevant issues and not on an elective whim. Secondly, it is desirable that some degree of public involvement has taken place, with participation from those people most likely to be affected. Thirdly, the objectives should be clearly and precisely stated and capable of implementation. Fourthly, no unduly disproportionate financial burden should be placed on any particular sector of a community in order to achieve goals which are of general benefit to the community at large. Finally, bearing in mind the delays inherent in achieving statutory recognition of policy objectives, it is desirable that there be clear evidence that the Responsible Authority is endeavouring to pursue such a goal as an end objective.

Even so, and having regard to all these criteria, it should be said that the rigid and inflexible application of a code will not be able to meet every planning situation which arises. Undoubtedly there will be occasions when the particular benefits of an application will warrant some concessions or departure from the provisions of a code, no matter how thorough its preparation."

32. Australian Aluminium Shopfitters also has been given legislative effect in Section 60(1)(b)(ii), but the Tribunal has continued to follow the decision as an indicator of the factors to be considered in assessing the weight to be given to a document referred to in that Section. Given that the list of factors in Lyndale and Black is not exhaustive, we consider the matters set out in Australian Aluminium Shop Fitters are also of assistance in assessing the weight to be given to proposed planning scheme amendments under Section 84B(1)(f). Mr Hooper said he had some concerns, not articulated, as to the Tribunal relying on this decision rather than Lyndale & Black, but we consider the decisions are complimentary and not contradictory.

33. Mr Hooper did not distinguish between the Metropolitan Strategy on the one hand and the Implementation Plans on the other.

34. He approached both as a proposal to amend the planning scheme and submitted that under the Lyndale and Black criteria they should be regarded as embryonic and should not be given the weight of a seriously entertained planning proposal.

35. He criticised the Tribunal decision in Ashlyn as according an incorrect status to the Metropolitan Strategy, and said that the Tribunal in Ashlyn acted in error when they held that they were "nevertheless of the view of that the introduction of Melbourne 2030 does have an effect on how these competing policies should assessed on a case by case basis" given that, in his submission, the Metropolitan Strategy has not been introduced.

36. He also criticised the Tribunal's suggestion that in an appropriate situation where it finds arguably strong competing policy propositions for and against a proposal, it would regard Melbourne 2030 as decisive (see paragraphs 13 - 15 of the decision). Mr Hooper submitted that the Tribunal should not have any regard to Melbourne 2030 and, if it did, should not have regard to it in a decisive manner.

37. The Tribunal in Ashlyn did not use the word "decisive" in this context, its relevant statement being that where a consideration of existing policy, for example, in relation to height, gave rise to differing arguable propositions, "the preferred position is perhaps discerned by reference to Melbourne 2030", although it did use terms like "fundamental" in discussing the "A More Compact City" strategy in the Metropolitan Strategy. However, we discerned that Mr Hooper's criticism was that the Metropolitan Strategy was premature or embryonic and not to be regarded as a seriously entertained planning proposal or policy, rather than a criticism of the Tribunal's view that it was entitled to give weight to a strategic plan or to a seriously entertained planning proposal in balancing competing elements of the current Planning Scheme. In relation to the question of law, Mr Hooper made no argument as to the actual weight that should be given to that particular element of the Metropolitan Strategy.

38. In relation to the weight to be given to the Metropolitan Strategy he submitted the statements in the Advisory Note that it is a seriously entertained planning proposal from Day 1 do not give it that status.

39. He referred to Hansard on 10 October 2002 where he submitted the Minister referred to a consultation process to take place.

40. He also referred to many passages in the Advisory Note that a further consultation and implementation process was contemplated. An appropriate example was set out under the heading "Draft Clause 12 explained" on page 5 of the Advisory Note as follows:

"Changes to the State Planning Policy Framework to give effect to Melbourne 2030 are proposed following the consultation period. This advisory note contains a draft of a new Clause 12 to be included in the State Planning Policy Framework in all planning schemes. Other consequential changes to the State Planning Policy Framework will also be required to remove superseded provisions and update references.

The draft clause sets out the directions, policies and implementation measures in Melbourne 2030 that are relevant to land use, development and subdivision. It is an example of how the directions and policies in Melbourne 2030 may be expressed in the State Planning Policy Framework following the consultation period.

From Day One, planning authorities, responsible authorities and other stakeholders are expected to consider and implement relevant parts of Melbourne 2030. To help identify which parts of Melbourne 2030 might be relevant to a proposal and to identify any gaps in the draft clause, councils, government departments, developers and the community are encouraged to use the draft clause to help them in considering Melbourne 2030. The draft is also provided for consultation purposes, and comments are welcomed. On the basis of practical experience during the consultation period, we would particularly like to know whether you find that the draft clause adequately expresses and gives effect to the land use, development and subdivision directions and policies in Melbourne 2030."

41. He expressed serious concerns of the City of Yarra that a premature application of the Metropolitan Strategy over the present planning scheme provisions could lead to inappropriate development, particularly in the City's heritage areas, which could not be reversed if the consultation contemplated resulted in changes to the Metropolitan Strategy and the Implementation Plans or if ultimately they were never made part of the Planning Scheme.

42. Mr Dreyfus' submissions for the Minister were on a different basis.

43. His first point was that the Metropolitan Strategy (as opposed to the Implementation Plans) was not a proposal, but a final strategy or plan that had been adopted by the Minister after extensive consultation. He produced a chronology of consultations commencing in December 1999, involving the release of discussion papers, two rounds of public consultation with a range of interest groups, OECD input, commissioning of technical reports from independent specialists, peer group reviews, a review of the draft Metropolitan Strategy by a reference group, and the issue of information bulletins, leading up to the release of the final document on 8 October 2002. On its face, it appears to represent an extensive consultation process.

44. Accordingly he submitted the Metropolitan Strategy was final and had been adopted after an extensive public consultation process, and that applying the tests as to weight discussed above, it should be accorded the status of a seriously entertained strategic plan and policy statement as asserted in the Advisory Note.

45. He further submitted that following the issue of Melbourne 2030 in October 2002 a number of steps for actual implementation had taken place namely,

* The adoption of Amendment VC16 which made amendments to the planning scheme in anticipation of the adoption of Draft Clause 12.

* The issue of the Advisory Note and the letters by the Minister to the Councils and the Tribunal referred to above.

* The amendment of the Planning Scheme to include the Urban Growth Boundary in the maps by way of Ministerial Direction No 10 and the issue of other Ministerial directions Nos 2, 3 and 9.

* The statement made on 9 October 2002 by the Minister in Parliament regarding a matter of importance where she stated "Melbourne 2030 is a plan that starts now."

46. Mr Dreyfus took us to the detail of the passages referred to by Mr Hooper in the Advisory Note regarding the consultation process. His submission was that the Metropolitan Strategy was final, and that the references in the Advisory Note were intended as a consultation process as to how the Implementation Plans will effectively implement it. In other words the Metropolitan Strategy is a given and future consultation is intended to be confined to its implementation.

47. He made no criticism or comment on the Ashlyn decision.

48. Mr Gobbo made a short submission as summarised above and supported Mr Drefus' case. Likewise he made no analysis of Ashlyn.

49. We agree with Mr Dreyfus' submission that the Metropolitan Strategy (as opposed to the Implementation Plans) is a final Strategy adopted by the Minister which the Tribunal may consider and if the circumstances so require, must consider under Section 60(1)(b)(ii).

50. Applying the tests in Lyndale and Black and Australian Aluminium Shopfitters it is a strategic planning document that can be accorded weight tor the following reasons:

* It has been adopted after an extensive consultation process, and

* The Minister and the State Government are pursuing its implementation on a serious basis.

51. As it is final and adopted, it is not necessary to consider whether it is a seriously entertained planning proposal.

52. Given our decision on the Metropolitan Strategy, it is not necessary to make any decision whether the Implementation Plans should be regarded as a seriously entertained planning proposal, and we comment that Section 84B(1)(f) would not appear to be applicable as draft Clause 12 is not yet in the form of an amendment to the planning scheme which has been adopted by a planning authority.

53. All parties agree that, at present, the Metropolitan Strategy is not law, in the sense that the Metropolitan Strategy is neither a reference document nor an incorporated document of the planning scheme, which has not yet been amended to give effect to the Metropolitan Strategy (with the exceptions discussed above).

54. So how does the Tribunal "implement" the Metropolitan Strategy and the Implementation Plans? Our view is that the Tribunal's obligation in making planning decisions is to apply the current planning scheme and in doing so is obliged under Section 60(1)(b)(ii) and (iii) to have regard to the Metropolitan Strategy. The Implementation Plans, as discussed in paragraph 52 above, would not appear to be a matter for relevant consideration under Section 84B(1)(f).

55. On the questions of law before us, we agree with the approach of the Tribunal in Ashlyn in finding that the Metropolitan Strategy is a relevant matter to consider as it was a strategic plan adopted by the Minister and they considered that the circumstances appeared to require them to do so.

56. Also on the questions of law we can make no comment on the way in which that particular discretion was exercised on the particular facts in that case. No argument was addressed to us on this matter.

57. As stated above in paragraph 53 there is no contest between the parties that at the present time the Metropolitan Strategy is not law, in the sense that it is not a reference document or an incorporated document of the planning scheme and as yet the planning scheme has not been amended to incorporate or otherwise give effect to the Implementation Plans.

58. The primary obligation of a responsible authority and the Tribunal when deciding on a permit application is to apply the existing law, being the appropriate legislation and the planning scheme currently in force, and whilst it is desirable that discretion be exercised in a way that does not compromise the Metropolitan Strategy, until it is incorporated in the planning scheme, it should not be the basis for the approval of a proposal that is inconsistent with or contrary to the controls or policies of the existing planning scheme. The following passage from Clause 11 of the SPPF states the task of responsible authorities and the Tribunal in applying policies in the schemes:

`The purpose of State Policy in planning schemes is to inform planning authorities and responsible authorities of those aspects of State level planning policy which they are to take into account and give effect to in planning and administering their respective areas. It is the State Government's expectation that planning and responsible authorities will endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development."

59. The Tribunal should also be conscious that, despite the restraints suggested by Mr Dreyfus, the ongoing consultation may result in changes to the Implementation Plans and perhaps to the Metropolitan Strategy itself. As an example, we note in that even though the Urban Growth Boundary has been given legal status by Amendment VC16 and Ministerial Practice Direction No 10, no other planning scheme provisions or other law is in force to give it effect, and Draft Implementation Plan 1 - Urban Growth Boundary contemplates that "following this consultation period the Minister for Planning will determine its final location. Once the UGB has been settled by the Minister it will be permanent".

60. Ashlyn and this matter are not the first applications before the Tribunal where the Metropolitan Strategy has been raised. It is now commonly raised. Examples of earlier Tribunal consideration which in our view are consistent with the law are:

* the Member in the decision in Omiros One Pty Ltd, Chernov & Melbourne City Council (application P1287/2002 dated 23 February 2003) was not willing to give weight to the "A More Compact City" Strategy of the Melbourne Strategy as he found the site was outside the relevant activity centre, and

* the Members in the decision in Dzanovski v Banyule City Council (Application P1411/2002 dated 20 February 2002), that whilst

"We do not think that there is any debate that Melbourne 2030 is a strategic statement that must be given weight." [paragraph 51]

"We have no doubt that the successful implementation of Melbourne 2030 will produce changes in aspects of the city's urban form as the policies are intended to..."[paragraph 53]

"The documents must be read in their entirety, as we have done. We are persuaded that some change is encouraged and that is sought to occur in a managed way, including through further planning work at the local level. In absence of that further work by the State Government and/or Council arising from Melbourne 2030, we find nothing within the policies to direct the degree of change in or adjacent to a strip centre such as Heidelberg Central of a magnitude envisaged by Mr Ryan." [paragraph 57]

Application of the Melbourne Strategy in this case

61. As indicated below, the finding of the Tribunal is that the proposal is supported by the Planning Scheme as it presently stands without any need to refer to Metropolitan Strategy or the Implementation Plans. It is also clear the consideration of Metropolitan Strategy and the Implementation Plans leads to the conclusion that they support the proposal and the proposal is not inconsistent with them. Any impact of the Metropolitan Strategy and the Implementation Plans in the present case cannot be regarded as "decisive" or "fundamental" as the proposal on its merits is justified on the basis of the existing scheme.

62. We finally desire to say something with regard to how the Tribunal should deal with the Metropolitan Strategy. Clearly it is an integrated plan to deal with numerous planning issues taking into account population growth over the next 30 years.

63. When dealing with this Strategy it is, of course, necessary to have regard to the document in its entirety.

64. No particular aspect of the Strategy itself necessarily carries greater weight than another. When considering the Strategy the Tribunal must have regard to each of the policies contained therein. In some situations there may be conflict or tension between the respective policies. In those circumstances it will require the tribunal to balance those conflicting interests. Each case will of course depend on its own facts.

65. However, ultimately it will be for the Tribunal to carry out such an exercise so as to ensure that the result is consistent with the policies contained within the plan.

66. Mr Rantino, in his written submission for the Responsible Authority, described the proposal as follows:

"The proposal is for a seven level building within and above the existing warehouse building shelf.

* Retention of the existing two storey factory/warehouse shell, containing two car parking levels, office (77 metres at ground floor level facing Stewart Street) and the first residential level.

* Construction of an additional five residential levels comprising forty five dwellings.(36 one bedroom and 9 two bedroom dwellings).

* Pedestrian entrance and address is proposed on Tennyson Street.

* Overall proposed building height is 23.2 metres.

* Provision of 48 on site car parking spaces in a two level part basement carpark. The car parking area is accessed from two vehicle crossings on Tennyson Street (one existing). One car parking space is allocated to each dwelling and three spaces to the proposed office.

* Stairwell access is provided from the basement car park.

* Twenty five bicycle parking spaces are designated within the car park.

* A designated area of waste storage is located within the basement area.

* The building retains the existing building parapet in its entirety (with a single vehicle entry point added on Tennyson Street)

* Levels 1-3 of the proposal are contained within the existing building structure.

* Existing windows are proposed to be retained within the car park and fitted with secure meshing in place of glazing.

* Building setbacks are provided from Stewart Street for 5.2 metres for levels four to six and 14.4 metres at level 7 (balconies intrude into these spaces).

* From Tennyson Street the building is principally set on the existing building alignment (with some setbacks for balconies) for levels 4-6 and 2.5 metres for level 7.

* From the laneway to the north the dwellings are setback between 0 and 2.2 metres from levels 4-6 and 2.2 metres for level 7 (balconies are also contained within these setback areas).

* The building is not setback from the western boundary at any of the new floor levels (excluding a central light court).

* Dwellings are principally single bedroom (36 one bedroom and 9 two bedroom dwellings are proposed).

* All dwellings are provided with an open space area of 8 metres squared or greater.

* A range of dwelling configuration is proposed. Most dwellings comprise a single bedroom, living and kitchen, area and bathroom. Some dwellings are provided with an additional study area. Unit 2 on level 3 is provided with an upper level on level 4. Bedrooms utilise a combination of natural and borrowed light."

67. Mr Rantino described the subject land and surrounds as follows:

"The subject site is located on the north western corner of Stewart and Tennyson Streets, Richmond. The site has a frontage length of 20.92 metres on Stewart Street and 51.44 metres on Tennyson Street. The total site area is approximately 903 metres squared. The site consists of four separate titles as follows:

Presently a single warehouse shell occupies the entire site. The building is two stories in height (high stories) and appears to have a visual separation of building form approximately half way along Tennyson Street.

The applicant has submitted that access to the site is currently along the laneway that runs the length of the western property boundary. A roller door exists at the south western corner of the site to allow vehicle access and loading to the site from that point.

The subject site is located in a former industrial area immediately to the north of Richmond Railway Station and contained by Stewart Street, Punt Road, Tanner Street and Botherambo Street, Richmond. The site is in close proximity to the Swan Street retail strip and a range of community services.

The area south of Tanner Street is comprised of a group of early twentieth century industrial buildings that range from two stories at the western end to seven and eight levels at the eastern end. The land was rezoned to Mixed Use with the introduction of the New Format Yarra Planning Scheme in May, 1999 and since this time has undergone a transition to residential conversion. Some conversion have involved additions of one and two levels on top of the existing built fabric, other conversions (such as that recently approved by VCAT at 29-31 Stewart Street involve the introduction of a substantial level of built form above the existing industrial building.

To the north of the site is a right of way (which is gated at the western end). Beyond this is an open forecourt and car parking area of the building at 28 Tanner Street.

To the east of the site is Tennyson Street, beyond which is a recently redeveloped industrial building converted for residential purposes. The additions for the purpose of residential use are generally low in scale relative to other parts of the precinct, but modern in type. The building is four levels. It contains 30 apartments and 373 square metres of office space.

To the south-west of the site over Stewart Street is the Richmond Railway Station. The station and platforms are elevated well above street level. The presence in Stewart Street is of a large retaining wall and an entrance to the station. Richmond Railway Station is an important transport node servicing a number of suburban train lines and providing direct access to the city.

To the west of the site over a laneway is the Australian Knitting Mills Building. The northern half of this site (on Tanner Street) is known as 24 Tanner Street and has largely been converted for residential purposes. The southern portion of the building is still used for commercial and industrial purposes. The building is a solid red brick building, and is valued for its industrial heritage and is seen as the key industrial building within the generally coherent group of industrial buildings located at the bottom of Richmond Hill (principally because of its size and signature presence). Interfacing with the subject site in the east elevation of the building are a large number of windows. These windows presently have wired glazing within them.

As described in the Grogan Richards Traffic engineering report submitted by the Applicant:

Tennyson Street is a local street running north from Stewart Street for approximately 55 metres. Tennyson Street has a carriage way width of around 6.5 metres and allows for two way traffic. Parallel parking is permitted along one side of Tennyson Street only with approximately five (5) unrestricted spaces along the eastern kerb.

Stewart Street is a local street turning south- east from Punt Road (Hoddle Street) to Swan Street. Stewart Street generally provides for two-way traffic with ingress only permitted at Punt Road.

In the vicinity of Tennyson Street, Stewart Street has a 6.5 metre carriage way. Parallel parking is permitted along Stewart Street, however. Is restricted to the north kerb to the west of the subject site, with parking to the east permitted along both sides of the carriage way approximately 30 metres beyond Tennyson Street."

68. The subject land is covered by the Yarra Planning Scheme and is in a Mixed Use Zone the provisions for which are found at Clause 32.04. "Dwelling" is an as of right use in the zone, however, a permit is required to construct two or more dwellings on a lot pursuant to Clause 32.04-5. Office is a Section 2 - Permit required use pursuant to the Table at Clause 32.04-1. A permit is required to construct a building or construct or carry out works for a Section 2 use, pursuant to Clause 32.04-7.

69. The subject land is affected by the Heritage Overlay relating to the Richmond Hill Precinct. A permit is required pursuant to Clause 43.01-1 to demolish a building and to construct or carry out works. Decision guidelines for proposals on land affected by this overlay require consideration to be given to, amongst other things, the planning scheme's policies, how the proposal will affect the significance of the heritage place and whether the bulk, form and appearance of the building is in keeping with the character and appearance of adjacent buildings and the heritage place.

70. The subject land is also affected by Clause 45.01-1, Environmental Audit Overlay. A permit is not required under this Overlay, but before commencement of works for residential purposes, a Certificate in Environmental Audit must be issued in accordance with Section 57(AA) of the Environment Protection Act 1970, or an Environmental Auditor appointed under that Act must make a statement in accordance with Section 57(AA)(5)(b) of that Act that the environmental conditions of the land are suitable for the sensitive use.

71. Given that the proposal involves a residential building which has a height greater than 3 storeys, the provisions of clause 55 do not apply.

72. Requirements for car parking are set out at clause 52.06. We note Mr Gobbo's view that the car parking requirements in this clause do not apply in the Mixed Use zone in light of the provision at clause 52.06-4 which states:

The requirements of Clauses 52.06 do not apply to an application to construct or extend a dwelling or a residential building under any provision of this scheme if the land is in the Residential 1 Zone, Residential 2 Zone, Mixed Use Zone or Township Zone.

73. Whilst it would seem that there is some validity to Mr Gobbo's submission, none the less, the provisions of clause 52.06 provide one basis upon which to consider car parking provision for this development. The table at Clause 52.06-5 provides that two car spaces are required for a dwelling and 3.5 car spaces are to be provided for each 100 square metres of office area. Clause 52.06-1 provides that a permit may be granted to reduce or waive the number of car spaces required by the table, subject to decision guidelines set out at that Clause. The provisions of clause 55 also assist in the consideration of the car parking requirements for apartments of this type.

74. Reference was made to the following planning policies and other documents:

* Clause 18.02 Car Parking and Public Transport Access to Development

* Clause 22.02 Development Guidelines for Heritage Places

* City of Yarra Heritage Review, Allom Lovell & Associates 1998

* Richmond Conservation Study, O'Connor, Coleman and Wright Architects 1995

* Urban Character Study, Mike Scott & Associates 1997

75. We will refer to the detail of these policies and other documents as appropriate.

76. Mr Rantino also drew our attention to Amendment C43 to the Yarra Planning Scheme. Amongst other things this amendment modifies clause 22.02 and the Statement of Significance for the Richmond Hill area. In particular we note that the new version of the Statement of Significance makes reference to the industrial area within which the subject land lies. Whilst Mr Rantino drew our attention to this amendment, he conceded that the amendment has not progressed to a stage that it can be regarded as one which is seriously entertained.

77. The Responsible Authority advised the Tribunal by letter dated 12 March 2003 that it intended to rely on the following grounds:

1. The proposal is inconsistent with State and Local Planning Policies relating to Heritage and Urban Design.

2. The proposal has not adequately resolved the relationship between the new building elements and the retained heritage structure.

3. The proposal is inconsistent with Council's MSS Element 1- Urban Design Framework and Element 2 - Residential Land Use and Development in that the development fails to achieve a high level of amenity for future occupants.

4. The proposal does not provide sufficient on site visitor car parking.

78. Mr Rantino made written submissions for the Responsible Authority. Mr Rantino submitted:

"It has already been acknowledged by Council that the mixed use development proposed for the site, including the addition of some new housing stock, positively advances a number of State and local planning policies.

* in close proximity to retailing activities and public transport;

A critical question for these proceedings, however, is whether the advancement of these policies is to be accommodated at the expense of the other policies relating to built form, neighbourhood character and heritage conservation.

The policies contained in the State and local planning policy frameworks are not weighted or prioritised. In considering a development, it is necessary to assess the development equally against the full suite of policy.

If anything, if there is to be a weighting, it is submitted that the weighting should be towards those policies relating to heritage conservation where a development concerns or impacts upon a Heritage place.

It is to be noted that even those policies which seek to encourage urban consolidation and increasing housing stock (including increasing housing stock in and around activity centres), invariably require this to be done in a manner which responds to the neighbourhood character, neighbourhood amenity and heritage values of an area (if any). In this regard, reference is made to the purpose of the Mixed Use zone and to clauses 14, 16, 18, 19.03, 21.04, 21.05 of the Scheme and, to the extent that weight is to be given to it, Melbourne 2030.

It is submitted that, despite compliance with a number of State and local policies, the proposed development fails against the important urban design and heritage conservation policies. It is this failure, along with other factors, which should result in the refusal of a permit.

When assessing this application, three main issues arise. These can generally be summarised as:

* heritage and urban design principles and policies

80. In support of his submissions, Mr Rantino called Mr R Milner, a Consultant Planner, as an expert witness. In relation to the subject land's suitability for a residential apartment complex with an office component, Mr Milner said:

I conclude that the proposal to convert and extend the building at 49-51 Stewart Street and 16-18 Tennyson Street, Richmond into a residential apartment project with a small office component is a well-conceived concept.

The proposal has a number of positive attributes that partially or completely contribute to the attainment of metropolitan planning strategy, settlement, residential, heritage or urban design policy.

81. However, in relation to the design detail of the proposed development Mr Milner said:

There are two aspects of the proposal that warrant review. One is the combination of the bulk, height and mass of the extension, which I conclude would be over intrusive and insensitive to both the context of the site and the intent of policy.

I recommend measures to reduce the height and setback of the building that would address that concern.

My second concern is with the liveability and quality of accommodation to be offered with some dwellings. I recommend changes to address these concerns.

With the modification of the design as recommended, a permit might issue.

82. Mr Milner expressed the following view about the design approach to be adopted on the subject land:

The principal conclusions to draw from the above are that a tempered design approach should be adopted to the issues of height, bulk and mass in a heritage area. It is important to identify and understand the distinctiveness and sense of place of the environs of the site and conserve and enhance those features that contribute to its significance. Height and bulk should be managed so that where it does rise above existing parapets and adjoining buildings it does so in a manner that is not intrusive or dominating, but preferably is hidden, recessive and setback from facades allowing the important cultural identity to remain the principal definer of the sense of place

83. Whilst Mr Milner agreed that it was acceptable to provide additional floor space above the existing building and for the extension to be designed utilising contemporary architectural forms, he expressed the view that:

o The height, bulk and form of the extension will constitute the larger and dominant form on the site, detracting from the older contributory fabric of the existing warehouse buildings.

o The proposal will be only partially screened by the existing parapet and AKM complex and will be evident as a relatively substantial and visually intrusive form from Tennyson Street and the eastern part of Stewart Street. It will rise over and in front of the AKM building when viewed from the railway station, railway line and Stewart Street.

84. To overcome these concerns, Mr Milner recommended a number of changes to the proposed development. Fundamentally, these involved increasing the front and side setbacks and lowering the height of the extension by two stories to reduce the prominence of the development when viewed from the adjacent streets. In addition to the design guidelines in the scheme, Mr Milner said that his view was influenced by the Tribunals' decision in Places Australia Pty Ltd vs. Yarra City Council and Ors P1224/2002 [2002] VCAT 1440 (11 November 2002) where the upper level of development was also setback a substantial distance from Stewart Street, approvals granted by the Council for lower profile industrial conversions in this area and his understanding of the "well accepted practice" of extensions to buildings being designed to play "a recessive and minor role".

85. On the issue of the internal amenity or liveability of the proposed apartments, Mr Milner said:

The proposed accommodation is a combination of single and two bedroom apartments, and I would anticipate having particular appeal to young professionals without dependants.

The spaces are generally small with single bedroom units being as modest as approximately 42.7m2.

In terms of a literal technical compliance it could be held that has been achieved in regard to matters of provision of a suitable area of private open space, energy efficiency, storage and car park provision.

........despite the above there are aspects of the proposal that suggest that the dwelling yield comes at the expense of the liveability of certain dwellings........

In my opinion the quality of these living spaces can be addressed by a reduction of number of dwellings per floor and a redistribution of space.

The inter-visibility issues on the western boundary could be addressed by screening techniques.

Solar access to west facing balconies on the lower levels (3 & 4) would be addressed by a redesign of the space."

87. Mr Rantino also raised a number of other internal amenity issues of concern to the Responsible Authority. These included the potential for apartments and balconies to receive adequate daylight and sunlight, the small size of some of the apartments, some dwellings not being provided with external storage areas, lack of adequate means of access into the building by disabled persons and inefficiencies in the internal floor layout.

88. Mr Rantino also submitted that the Responsible Authority does not consider that sufficient on site parking is to be provided and that the car park layout is deficient in terms of vehicle access and manoeuvrability.

89. In submitting that a permit should not be granted, Mr Rantino concluded by saying:

The concept of providing high density apartment living in this location is sound and is consistent with State and Local Planning Polices and in the draft Metropolitan Strategy, Melbourne 2030. An addition to the heritage building could be one that is visible and contemporary in nature, but one which exhibits a recessive relationship of visible separation and volume relationship which respects the existing building as the predominant dominant form to be read from the site. Materials should be simple and visually different from the existing heritage fabric, greater setbacks should be provided to the new levels, and a further reduction in height of the new portion of the building would be appropriate to ensure that the vertical portion of the new building is lesser than the vertical portion of the existing facade.

It is considered that the internal amenity of a significant number of dwellings is compromised and could be better resolved through floor plans that reduced the number of dwellings proposed at each level, thus allowing for an acceptable standard of residential amenity and consistency with planning scheme policies that specify this.

90. Ms T Blazey, Mr S Coxon, Ms J Wigley, Mrs S Woodward, Mr D Gabbedy and Mr D Damon, Respondents/Objectors of various apartments in 28 Tanner Street (the Kayser Building), made submissions. In summary their concerns included:

* The proposal is out of character with other developments in the area and the Heritage Overlay.

* The proposal would block views to 28 Tanner Street, the Kayser Building, and the AKM Building.

* An increase in traffic congestion and parking problems.

* The proposal is an overdevelopment and the proposed height would be excessive.

91. Mr Gobbo made oral and written submissions for the Applicant for Review/Permit Applicant. In relation to the proposal in general, Mr Gobbo said:

"In the permit applicant's submission, this not a case about whether approval should be given, but about what approval should be given. Neither the Council's submissions nor the evidence upon which it relies support a refusal of the proposal; instead they call for a reworking of the proposal in specified ways. The permit applicant does not take issue with a number of the recommended changes; it does contest the appropriateness of applying a policy guideline that additions in heritage places must be hidden from the street. The main issue in dispute between the Council and the permit applicant is the height and setbacks of the proposed additions to the heritage building.

92. In relation to the concerns raised by Mr Milner, Mr Gobbo noted that if the height of the building is reduced by two storeys and additional setbacks are provided, this would reduce the overall yield of the project by about 20 dwellings. Mr Gobbo maintained that this could not be justified having regard to the relevant policy, urban design, heritage and amenity considerations and furthermore would not represent the reasonable balancing of policies relating to heritage and urban consolidation.

93. In support of his submissions, Mr Gobbo relied on the evidence of Mr P Small, a consultant planner and Mr B Rayworth, a architect with expertise in heritage conservation.

94. Mr Small 's evidence was that the subject land is ideally suited for a major mixed use development given the opportunities which it presents including:

* Strategic planning support for the proposed use in this area.

* An established neighbourhood character of mixed residential of typically two to seven levels.

* Overall dimensions of the site, in that it is effectively an island site.

* Existing residential conversions and warehouse buildings adjacent to the site with no immediate habitable room windows within 9 metres, reducing potential off site amenity impacts, particularly overlooking and overshadowing.

* Access to physical, social and community infrastructure that support increased density.

95. In addition to generally rejecting Mr Milner's criticisms of the proposal, Mr Small went on to say:

The site presents an opportunity for high-density residential development given the proximity of public transport and core commercial, retail and community services. Both the SPPF and LPPF encourage high-density developments to be located in areas proximate to these services. The proposed built form has been designed to respond to the characteristics of the built environment of the neighbourhood. I consider that the proposal responds to state planning policy and is consistent with the objectives of the Planning Scheme. The proposal results in the mixed-use conversion of a marginalised industrial area, providing additional housing opportunities within the area through a design which responds to the established character through appropriate setbacks, articulated building form and building materials.

96. On the heritage issue, Mr Gobbo submitted that:

In heritage terms, the permit applicant submits that the most important measure adopted in the design is the retention of the overwhelming majority of the heritage building and the restoration of the original brickwork. This ensures that the legibility of the industrial origins of the building is fully retained and forms the defining architectural influence on the design. Such modifications to original fabric as are made are minor and sympathetic e.g. car openings, garage doors, entry canopy.

In assessing the appropriateness of the extensions, it is submitted that the relative significance of this industrial precinct and the subject building within it must be critically weighed up. None of the precinct, the subject building or the adjoining buildings is identified as significant by the documentation underpinning the heritage overlay. This is common ground.

97. Mr Rayworth's report gave a detailed assessment of the proposal against the provisions of the heritage overlay and the policies which apply having regard to the significance of the both the building on the land and the area within which it lies. Mr Rayworth concluded that:

"In summary, I find the proposal should be considered acceptable in terms of heritage considerations for the following reasons:

* the subject building is not of individual significance, but is a contributory streetscape element within an industrial precinct that is within a larger heritage overlay area, H0323;

* the extent of fabric to be retained, being all of the two storey building to the Stewart Street end of the site and the external walls of the second building further to the north along Tennyson Street, is an appropriate response to the significance of the building;

* the proposed development has been modified to limit and substantially remove any impact arising with respect to streetscape views along Stewart and Tennyson Streets, and adopts a scale that is compatible with the area;

* the proposal also presents a palette of materials and finishes to the new work that is compatible with the industrial character of the area and that will allow the (restored) red brick forms of the extant building to remain visually dominant within the associated streetscapes.

On this basis, I believe the proposal has sufficient regard for the objectives of clause 43.01, the heritage overlay, and clause 22.02, Development Guidelines for Heritage Places, of the Yarra Planning Scheme.

98. In relation to the various amenity concerns raised by the respondent objectors, Mr Gobbo submitted that:

Notwithstanding objections raised by neighbours, the permit applicant submits that sunlight and daylight access, privacy and outlook are reasonably protected by the proposal. Mr Small's evidence supports this submission.

It is noteworthy that the Council officer identified no unreasonable overlooking or overshadowing to existing dwellings. Mr Milner took no issue in these regards.

External amenity impacts do not form the basis of any of Council's grounds of refusal.

99. In relation to off-site amenity impacts, Mr Small's view was:

The proposed development will have negligible impact on the amenity of surrounding residential areas. The site is afforded buffers to all sides, including Tennyson Street to the east, and laneways to the north and west. Further, the existing car park in front of the apartment building to the north provides a large buffer between that site and the proposed development.

100. Specifically on the issue of the potential overlooking between the proposed apartments and existing apartments on nearby properties, Mr Gobbo submitted that:

"The windows and terraces have been appropriately located such that there is limited overlooking to adjacent properties or within the site. Appropriately, this has resulted in the need for limited screening to the proposed windows within the building, which improves internal amenity to these dwellings. Opaque glazed screens ensure privacy between balcony areas of the proposed dwellings."

It is relevant in assessing potential overlooking from north facing windows and balconies to the Kayser building over a distance of more than 25 metres that the design of the Kayser conversion already allows ample and unobstructed views into apartments from the public domain. The potential absence of privacy is an existing condition. It is however readily addressed by blinds or curtains on south facing windows."

101. On this issue, Mr Small expressed the view that:

"The windows and terraces have been appropriately located such that there is limited overlooking to adjacent properties or within the site. Appropriately, this has resulted in the need for limited screening to the proposed windows within the building, which improves internal amenity to these dwellings. Opaque glazed screens ensure privacy between balcony areas of the proposed dwellings."

102. In relation to internal amenity, Mr Gobbo conceded that there is scope for improvement and suggested a number of modifications as follows:

* show existing openings in the heritage building on south elevation (TP03);

* introduce curved walls to adjacent units to improve connectivity between living areas and balconies for units 13, 15, 18, 23, 25 and 28 generally in accordance with the submitted sketches (TP04, TP05);

* use of glass blocks for bathroom and bedroom windows of units 14, 19, 24, 29 to maintain privacy (TP04, TP05); alternatively these windows can be deleted;

* relocate balcony alignment between units 13 and 14 and 23 and 24 one metre further west to provide northern light to units 14 and 24 (TP04, TP05);

* alteration to windows on level 3 within heritage fabric to allow for openable glazing;

* modification to units 3, 11, 21, 31 and 41 to increase setback to adjoining property to west and improve solar access for balconies generally in accordance with the submitted sketches (TP03, TP04, TP05, TP06). This change results in an increase the number of bed-sits and the loss of one apartment. The development as a whole provides a good mix of bed-sit, 1 bedroom, 1 bedroom plus study and 2 bedroom apartments.

103. In response to concerns about car parking and traffic, Mr Gobbo called evidence from Mr J Walsh, a Consultant Traffic Engineer. Mr Walsh provided details of a number of spot car parking occupancy surveys taken on a number of days and at various times in February and March 2003 and said that the minimum number of available on-street spaces at any time during these spot surveys was twelve. It is noted that the surveys were not taken whilst there were sporting events at any of the nearby sporting facilities, including the Melbourne Cricket Ground.

104. Mr Walsh assessed the required car parking against Clause 52.06, the City of Yarra Parking Policy and Clause 55 (which does not apply because the proposal is greater than four storeys). He also included an assessment based on Australian Bureau of Statistics (ABS) 2001 Census Data for Vehicle Ownership. These assessments indicated car parking requirements as follows:

* The City of Yarra Town Planning Parking Policy: 56 spaces

* Clause 55: 55 spaces (for the residential component only) and 3 spaces for office based on clause 52.06.

105. It is proposed that 48 car spaces be provided on site. Mr Walsh expressed the view that that the provision of 48 car spaces is appropriate having regard to ABS Data and Case Study Data. Mr Walsh suggested that two car spaces be allocated to the office use and that these be available for visitors to apartments when the office use was closed.

106. Mr Walsh recommended that the ramps from Tennyson Street to the two car parking levels be widened from 3 metres to 4.2 metres. Subject to this change, Mr Walsh said that the car parking and access provisions were otherwise satisfactory.

107. Mr Walsh also said that the additional traffic generated by the proposed use of the land would have a minimal impact on the surrounding road network.

108. After having considered the submissions and evidence presented by the parties, the relevant matters to be considered under the planning scheme and the legislation and the details of the proposal, it seems to us that the key issues in this matter are as follows:

* Is the proposal in accordance with the planning scheme's policies and provisions with respect to urban consolidation, housing, heritage and neighbourhood character?

* Will the proposed development result in unreasonable impacts on the amenity of the surrounding area?

* Will the proposed apartments provide future residents with a satisfactory level of amenity?

109. Before turning to these issues, it is relevant to note that it was common ground between the Responsible Authority and the applicant that, as a matter of principle, the redevelopment of the subject land for residential purposes represents an appropriate outcome. This is not surprising given that the land has a number of attributes that make it suitable for this form of redevelopment and use.

110. It is clear that the subject land presents itself as a redevelopment site for residential use. There has been a significant decline in industrial activity in the area within which the subject land lies and many properties have now been converted for residential use. It would seem that the land and the existing building are no longer required for industrial purposes and its redevelopment for residential purposes would follow the trend that has emerged. Whilst the land is not overly large having an area of about 900 square metres, none the less it has reasonably good proportions and has the benefit of having an abuttal with two streets. The existing building is not individually significant from a heritage viewpoint, however, it does offer an opportunity for adaptive re-use for residential purposes.

111. The land is also well located in close proximity to a range of public transport services including the Richmond Railway Station which is at the land's door step as well as tram and bus services in nearby Swan Street and Punt Road. The land is also locate in close proximity to a range of retail, service and entertainment facilities in the Swan Street shopping centre as well as employment opportunities in Melbourne's CAD. A range of open space and recreation facilities are also located nearby.

112. In light of the attributes of the land itself and the locality, it is not surprising that both Mr Milner and Mr Small came to the view that it is an appropriate site for residential redevelopment. However, the major policy issue before us is not whether the conversion of this land for residential use is appropriate, but rather whether the intensity or the level of development proposed the acceptable.

113. This leads us to the three key questions. The first of these is whether the intensity of the development proposed accords with the various policies within the planning scheme that relate to urban consolidation, housing, heritage and neighbourhood character. In considering the merits of the proposal there are clearly a range of policies that need to be considered and balanced having regard to the objectives and strategies set out in the scheme.

114. On reviewing the various urban consolidation and housing policies that apply in both the SPPF and LPPF, it is very clear that they provide strong support for the proposal.

115. In relation to the SPPF we note that the policy for "Planning for Urban Settlement" at clause 14.01 encourages planning authorities to plan to accommodate population growth "taking into account opportunities for redevelopment and intensification of existing urban areas" with higher densities and mixed-use development encouraged near public transport routes. The general implementation principles for the policy for "Metropolitan development" at clause 14.02 build on this by encouraging the consolidation of residential and employment activities within existing urban areas and designated growth areas. The general implementation principles go on to specifically say that higher land use densities and mixed-use developments should be encouraged near railway stations as well as tram and principal bus routes.

116. In relation to the LPPF, we note that under the "Yarra Strategic Framework Plan" at clause 21.04 of the Municipal Strategic Statement [MSS], the subject land is located within one of the identified mixed-use areas that accommodate residential, commercial and industrial activities. Furthermore the land is also located adjacent to a "Major Transport node". Under the "Residential Framework Plan" at clause 21.05-2 the subject land is also located within one of the identified mixed-use areas whilst under the "Retailing and Activity Centres Framework Plan", Swan Street is identified as one of the municipality's major retail centres.

117. In encouraging the maintenance of the municipality's diverse and distinctive social and urban character, the strategic objectives at clause 21.04-1 seek to facilitate, amongst other things, an increase in dwelling numbers in a manner which is consistent with infrastructure capacity, heritage and amenity considerations with a built form that achieves increasingly high standards of urban design and residential amenity. Key strategies to achieve this include:

* Maintain the mixed land use character of the city, both at broad municipal level and in localised areas, to promote sustainability in urban form, and maintain Yarra's distinctive and vibrant urban character.

* Emphasise major new residential development opportunities within designated mixed use areas, combined commercial/residential strips, major redevelopment sites and renewal areas, to meet the increasing demand for inner city living;[underlining our emphasis]

* Limit development within established residential areas, in order to protect and enhance the valued urban character and amenity of these locations.

118. At clause 21.05-2, the MSS objectives seek to bring about a range of outcomes including a sustained reversal of Yarra's decline in population, to retain a diverse housing stock and to provide a greater range in both the type and affordability of housing stock. The strategies at clause 21.05-2 call for, amongst other things, the creation of new residential development opportunities within mixed-use areas (formerly marginalised industrial areas) where the conversion of existing premises and new residential development is encouraged. Furthermore, the strategies make it clear that locations such as the mixed-use areas are emphasized as the "primary opportunity to maintain Yarra's population base, rather than established residential areas which are already developed to a "medium density".

119. In our view, the above analysis demonstrates that there is a very strong, almost overwhelming, policy and strategic planning basis within the planning scheme as it stands which supports the redevelopment of the subject land at relatively high intensity. The SPPF policies clearly direct higher density development to areas which are well served by a range of facilities, particularly fixed rail public transport. The subject land is ideally located in this regard. Furthermore, it is directly relevant that this is one of the locations identified in the Council's MSS where major new residential redevelopment should occur. The provisions of the MSS do not simply contemplate the need for additional housing and redevelopment within the municipality. Significantly, the strategies within the MSS at clauses 21.04 and

21.05-2 specifically direct higher density development to occur within the more robust mixed-use areas such as this whilst a more tempered approach to new development is called for within the more sensitive established residential areas.

120. This strategic approach demonstrates the way the scheme itself balances the need to on the one hand provide more housing in appropriate locations whilst at the same time maintaining the fine grain character of established residential areas. It is inevitable that the implementation of the MSS strategies will require a significant degree of change to occur and the location where the greatest level of change is to be anticipated has been identified. The mixed-use areas are one of these locations and accordingly the consideration of proposals such as this and their impacts must embrace the notion that there will be a greater degree of change than that which could be anticipated in the established residential areas.

121. As such, we have no difficulty agreeing with the conclusion reached by the Tribunal in Places Australia, a case involving the development of 91 apartments within a seven level building on nearby land at 29-31 Stewart Street, when it found:

The review proposal is highly consistent with both the seriously entertained Melbourne 2030 Metropolitan Strategy and also with local policy at clause 21.04-1 in terms of strategies emphasizing major new residential redevelopment opportunities within designated mixed use areas while limiting development within established residential areas in order to protect urban character.

122. In addition, the proposal improves housing choice by providing a range of dwellings from bedsits, single bedroom apartments, single bedroom plus study, two bedroom and two bedroom plus study. These dwellings would cater for single persons or two persons, particularly those wanting to be close to public transport and other facilities. The proposal would make better use of existing infrastructure, which with the cessation of former industrial activities would be under-utilised.

123. These are all favourable aspects of this proposal. The proposal's consistency with the thrust of these planning scheme policies cannot be lightly dismissed.

124. Whilst we have found that the proposal is consistent with these aspects of planning policy, this is not to say that higher density residential development should occur at all costs in this location. Rather the planning scheme's policies and the purpose of the Mixed Use zone also call for development which is respectful of neighbourhood character, conserves and enhances heritage assets and makes a positive contribution to the public realm in urban design terms.

125. In relation to heritage, we note that the policy at clause 15.11 of the SPPF seeks to bring about an outcome whereby places of aesthetic, historic, cultural or social significance are conserved and enhanced. In addition, it is relevant to refer to the policy for Design and Built Form at clause 19.03 which states that, in relation to heritage, "new development should respect, but not simply copy, historic precedents and create a worthy legacy for future generations. The policies which are most relevant within the LPPF are those at clause 21.05-7 of the MSS and clause 22.02 which sets out the "Development Guidelines for Heritage Places".

126. In considering the heritage issue, there are a number of observations that need to be made. The first is that whilst the subject land is located within the Heritage Overlay, the heritage area within which it lies is relatively large covering the whole of the Richmond Hill area. Although identified in the description of the area under the heritage study, there is no mention of the industrial area within which the subject land lies in the current Statement of Significance for the Richmond Hill precinct. Furthermore, we understand from the evidence and submissions that the existing building on the subject land is of no individual importance and Stewart Street is not identified as being one of the most intact streetscapes. We note that the revised Statement of Significance under Amendment C43 changes this in that there is reference to the industrial area within which the subject land lies. However, as Mr Rantino quite fairly conceded, this amendment is in its early stages and has not reached a stage that it can be considered as being seriously entertained.

127. A further point to be made relates to the application of the guidelines at clause 22.02. Mr Milner conceded that the proposal is consistent with a number of the guidelines. However, Clause 22.02-3.5 includes a guideline that new upper storey additions should normally be permitted where, amongst other things, the higher section is hidden from the street. The proposal does not comply with this guideline.

128. However, it is evident that permits have been given for additions to buildings which can quite clearly be seen from surrounding streets. The addition to the top of the Kayser building is an example. We also note that in his evidence, Mr Milner did not express the view that additions to the existing buildings must not be seen from the adjoining streets. Mr Milner said that the overall height of the building should be lowered by one and preferably two levels and that greater setbacks should b applied. This would however, still result in additions that would be quite clearly visible from the adjoining streets. We accept the general proposition put forward to us by the parties that as a matter of practicality on a corner site like this, it will not be reasonable to apply the policy at clause 22.02-3.5 so rigidly that only additions which cannot be seen from adjoining streets would be acceptable. In our view, the critical issue is whether the additions will detract from the significance or appearance of the building and the area generally having regard to the significance and character of the heritage place.

129. On this issue, we note the following views expressed by Mr Rayworth:

Several other factory buildings within the immediate area have been converted for residential purposes. Fronting Tanner Street, to the north of the subject site, is a 40 metre high seven storey brick warehouse conversion to apartments. To the west of the subject site is another three storey brick warehouse fronting Tanner and Stewart Streets that has been converted into apartments. To the immediate east of the subject site across Tennyson Street, is a residential development combining some older fabric along with substantial modem additions of high visibility within the precinct. Most notably, a permit has just been issued for a seven storey development of the two-storey factory at 19-31 Stewart Street, a site broadly similar to that at 49-51 Stewart Street in terms of period, height and character.

It is noteworthy that the combination of residential and industrial uses in the area has led to contrasts in character and scale within various streetscapes, including those around the subject site. This is not an area in which scale and character are homogeneous and valued, but rather one in which contrast is an entrenched aspect of the valued and significant character. While the subject buildings are part of a noteworthy sequence of (largely red) brick industrial buildings along Stewart Street, recent residential developments are also exerting an increasing presence upon the character of the precinct. To date this has not been to the detriment of the valued industrial character of the precinct, but rather has added a new dimension of complexity and interest that sits comfortably alongside the identified heritage values.

The proposed upper levels of the development will be largely hidden by means of their setbacks behind the existing building fabric. The new works will be substantially concealed on the Stewart Street facade from the opposite side of the street due to their step back from the existing facade and progressive stepping as the building becomes higher. To the extent that they may be visible from oblique views, the works will be visually distinct as a new phase in the building's history while also being respectful to the building's cultural heritage significance."

130. Whilst a large extension to the existing building is proposed, none the less a favourable aspect of the proposal is that the vast majority of the existing building is being retained. The proposed additions are acceptable having regard to the nature of the building and the context of the land. The additions have a contemporary architectural style, they are setback from Stewart Street and will be easily distinguished from the original heritage fabric. This approach ensures that the industrial origin of the building itself and its contribution to the understanding of the development of the area within which it lies remains reasonably intact. Furthermore, the original building is robust given its size and industrial character. It has a significant presence at street level. As such, it is a building that is capable of supporting an extension of the size proposed. Its dominance and appearance along the streetscape views will not be undermined by the extension given the limited views of the land that are available and the setbacks proposed.

131. We also consider that the scale of the building will not be out of place having regard to the nature of surrounding development. The siting and design of the extension will not, in our view, undermine any significant view of the adjacent AKM building. Taken overall, we find ourselves in agreement with the view expressed by Mr Rayworth that the proposal demonstrates satisfactory compliance with the scheme's heritage policies and guidelines.

132. We have also considered this proposal in light of the various policies within both the SPPF and LPPF (clause 21.05-1 in particular) that require neighbourhood character and urban design issues to be considered. For reasons not dissimilar to those that we have already set out with respect to heritage, we consider that the proposal is acceptable from a neighbourhood character viewpoint.

133. The subject land is located within an area where the built form is strong and imposing. There is variation in height, with some buildings, such as the Kayser building, presenting imposing industrial built form elements juxtaposed directly opposite single storey workers cottages. The subject land does not, however, have such a "delicate" context being surrounded by industrial and former industrial buildings as well as the railway line and station and the associated concrete wall running along the opposite side of Stewart Street. The height, design and bulk presented by this proposal is not out of place having regard to neighbourhood character and urban design considerations.

134. We have come to the conclusion that this proposal represents an appropriate outcome having regard to the various policies relating to urban consolidation, housing, heritage and neighbourhood character. To this we add that we do not see that there is any conflict between the proposal and the Metropolitan Strategy. None the less we have little difficulty accepting Mr Small's view that this proposal is supported by the planning scheme's policies, both within the SPPF and the LPPF, as they currently stand.

135. We now turn to the second of the key issues, namely whether the proposal will have any unreasonable impacts on the amenity of the surrounding area.

136. The objectors expressed concerns that there is insufficient parking provided for the proposed use of the land, particularly having regard to the pressures on kerbside parking in the area. The evidence of Mr Walsh was that when "spot" car parking occupancy surveys were undertaken by his firm, there was a minimum of twelve on-street car spaces available. We accept, however, that when there are major sporting events in the area, on street parking will be at a premium and difficult to find. It is one of the "disadvantages" of this area. This must, however, be balanced against the advantages of living in an area which has what can only be described as excellent accessibility to public transport and a range of other facilities. This is the type of location where it is reasonable and realistic to anticipate that it will be difficult to park and that it will appeal to residents who do not see the need to own a car.

137. Although the provisions of ResCode do not apply, we consider that the application of the car parking rates set out in clause 55 to be the more appropriate "benchmark" upon which to consider the provision of parking for the proposed apartments. Based on these rates, a total of 55 car parking spaces would be required, comprised of 46 spaces for residents and 9 spaces for visitors. A further 3 spaces would be required for the office component. Forty eight car parking spaces are to provided.

138. In reviewing this proposal and the evidence of Mr Walsh, we consider that satisfactory on site car parking has been provided. In particular we consider that this is one of those locations where it would be possible to accept that a limited number of small bedsit apartments could be provided without a dedicated car space.

139. On reviewing the proposal, we consider that it would be appropriate to provide a bank of five car spaces within the development for visitors to both the offices and the apartments. Given that there will be some access to visitor spaces, we consider the provision of two dedicated spaces for the office component to be satisfactory. This leaves 41 car spaces for the apartments.

140. We consider such allocation to be acceptable given that 12 of the single bedroom apartments are from a practical viewpoint, small bedsit style units that have a small wall separating the sleeping and living areas. There is a reasonable prospect that these apartments will appeal to persons who will essentially rely on the excellent public transport services that are available. It must also be borne in mind that the previous industrial use of the land would also have generated car parking demand of some sort, yet there has not been any substantive provision of parking on this site. We would consider it reasonable to make some allowance for the previous use given the desirability of retaining the existing building. When consideration is given to the inner suburban context of the land, the excellent public transport, that the existing building on the land is being retained and recycled for heritage reasons and the small size of many of the apartments, we accept Mr Walsh's evidence that satisfactory on site parking is provided.

141. Concerns were also raised about various aspects of the car park layout. The Responsible Authority was concerned that on the two car park levels there was a width of 3 metres adjacent to the lift. The length of this 3 metre wide section is only a little over 4 metres, and we do not consider that this is unacceptable, particularly with provision of mirrors.

142. The Responsible Authority was concerned about vehicle ramp gradients from Tennyson Street. Mr Walsh recommended that the ramp widths be widened from 3 metres to 4.2 metres, and it was his evidence that the car parking and access provisions were otherwise satisfactory. Mr Rayworth said these changes would not affect his views on heritage matters. We accept that evidence and consider that the ramp gradients and widths proposed are not inappropriate.

143. Accordingly, subject to some relatively minor changes, we consider the layout to be acceptable given the desirability of maximising the number of spaces available and that it is to be largely used by residential users and visitors who will become familiar with its operation.

144. We have also reviewed the traffic issues raised by the objectors. In short, we agree with Mr Walsh's view that the surrounding street network has the capacity to accommodate the traffic that would be associated with this proposal.

145. A further matter raised by Mr Rantino relates to the potential for overlooking between the proposed apartments and any new apartments that may eventually be developed within the AKM building. This concern arises because the AKM building has many windows facing towards the subject land. Although the front part of the AKM building has not been redeveloped for residential apartments, we think that there is s strong likelihood that this will occur given the trends in the area and the thrust of planning policy which encourages this to occur. We consider it reasonable for the design of this building to incorporate measures to reduce the potential for privacy problems to occur between these two buildings given the small distance between them. We consider that there is potential for windows and balconies facing toward the AKM building to be modified or screened to reduce the potential for privacy problems and that this can be achieved by way of amendments to the plans that can be required by way of permit conditions.

146. Mr Rantino acknowledged that a number of the Kayser building residents had raised concerns about potential for overlooking resulting from views towards their apartments from the apartments and balconies that form part of the subject proposal. However, Mr Rantino said that the 25 metre separation of the two buildings is an adequate distance to limit the potential for unreasonable overlooking and we accept that submission.

147. We have also considered the daylight and shadow impacts of the proposal. We have no concerns in relation to ambient daylight to the windows of dwellings on surrounding properties given the separation between buildings. In relation to overshadowing, there will be an increase in the level of shadowing to the east in the mid to late afternoon period, however, on balance, when consideration is given to the nature of the locality and the extent of the impact, we do not find this to be unreasonable.

148. Another concern raised by the residents of the Kayser building relates to the impact on views. At present, apartments facing towards the subject land enjoy expansive views towards the south. The proposed building will have an impact on part of those views. In considering this issue we refer to the following extract from the Tribunal's decision in Ariss and Morrow v Surf Coast Shire (1995/843 and 2048 unreported, editorial comment 14 AATR 294-5) which conveniently sets out the accepted principles on the issue of views:

(b) views form part of the existing amenity of a dwelling and their loss is a relevant consideration to be taken into account;

(c) the availability of views must be considered in light of what constitutes a reasonable sharing of those views; and

(d) added emphasis will be placed on considerations (b) and (c) if the question of views is specifically addressed under the Planning Scheme.

149. After having inspected the subject land, which included viewing it from one of the upper level apartments in the Kayser building, we are unable to find that the extent to which the proposed building will interrupt existing views will be unreasonable bearing in mind the principle that there is no legal right to a view and that the planning scheme provisions do not refer to the issue of view protection. The impact on views was not of concern to the Responsible Authority or to Mr Milner. Furthermore whilst the proposal will interrupt part of the existing view, substantial views will still be available from the upper level apartments.

150. Accordingly, we find that it will not result in unreasonable amenity impacts on the surrounding area.

151. The third key issue relates to whether the proposed apartments will provide future residents with an acceptable level of amenity.

152. On this point Mr Rantino and Mr Milner raised several concerns relating to such matters as the extent to which apartments and balconies would have access to daylight, sunlight and ventilation, the relationship between balcony/deck areas and bedrooms to other apartments, noise from lifts, lack of storage facilities and lack of suitable access for disabled persons.

153. In relation to these matters we consider it relevant to say that the assessment of amenity issues requires, amongst other things, consideration to be given to the context of the land, the policies that apply and the nature of the development_._ This point was discussed by the Tribunal in the following passage from the decision in Melbourne City Council and Others v Minister for Planning and Baulderstone Hornibrook Pty Ltd (Application no. P1394/2002 unreported):

It is somewhat unrealistic to expect that all dwellings will provide the same type of amenity. For example, is it realistic to expect that an apartment within a high rise complex in inner Melbourne will provide the same type of amenity that will be provided by a townhouse in middle to outer suburbia? It may be that both provide a good standard of amenity, however, the factors that contribute to the amenity on offer may be quite different...........

The relevance of site context and policy is also discussed in the Tribunal's decision in North West Melbourne Association Inc V Melbourne City Council and Banco Group [2002] VCAT 485 (29 July 2002). In Banco, a case involving a mixed use development in an inner city location, the Tribunal expressed the view that in considering amenity issues "....a level of judgement is obviously required...." and furthermore that:

"...........the exercise of judgement on these matters cannot be divorced from my earlier findings that the redevelopment of this site for a mix of retail/residential uses is specifically encouraged by the planning scheme. In this planning context there is I think considerable merit in the proposition put by Mr McGurn that some future occupants of this development will be prepared to sacrifice some elements of internal amenity in return for enjoying the benefits of living in this central location, at a relatively affordable price."

Whilst the subject land is not within the CBD, its context is none the less inner urban and furthermore, it is clear that policy encourages and supports the development of this site at a relatively intense level. It is also clear to us that the location of the land offers residents a range of advantages including good access to a range of services and facilities such as local and regional shopping, open space, recreation facilities, education facilities, public transport and employment opportunities in Melbourne's CBD. These advantages make a contribution to amenity on offer. Furthermore, the type of dwellings proposed will offer a low maintenance environment whilst many of the upper level apartments, particular those facing towards the south and south-west, will have the benefit of views over open space and towards the CBD and Docklands.

154. In our view, the dwellings within the proposed development will offer future residents most of the advantages set out in the last paragraph of the above passage. These factors cannot be ignored.

155. The consideration of the above factors does not mean that the matters raised by Mr Rantino and Mr Milner should be dismissed. Rather, it is fair to say that Mr Gobbo and Mr Small recognised that there was some scope to improve the internal amenity or liveability of the proposed apartments. Mr Gobbo suggested a number of changes and we have set these out at paragraph 102. We have considered these and have come to the view that they are appropriate improvements that would bring the liveability of the proposed apartments to an acceptable standard. In particular these modifications would result in the loss of one dwelling and would increase the number of bed sits. These modifications would also slightly reduce demand for car parking, improve general amenity and increase the setback to the adjoining property to the west.

156. Amenity expectations and the level of interaction with the occupiers of other apartments must be in line with what can reasonably be expected within a development of this type. The apartments are of a smaller nature and will appeal to a particular segment of the residential market. In the main they provide for on site parking and open space in the form of balconies and decks. Floor layouts are functional and well suited to small households seeking a low maintenance environment. Despite the concerns raised on behalf of the Responsible Authority, we consider that apartments will receive reasonable daylight.

157. We do however, still have an issue with the lack of suitable access for disabled persons into this building. We see no reason why suitable access arrangements should not be provided in some way and we note that in response to our queries, Mr Gobbo agreed that it would be appropriate for this to be provided within a development of this size.

158. Subject to the changes foreshadowed by Mr Gobbo and the provision of suitable disabled access, we find that the proposed dwellings will provide acceptable internal amenity.

159. We have come to the conclusion that a permit subject to conditions should be granted.

160. We have come to this conclusion having regard to the Planning Scheme as it presently stands, ie. the relevant State and Local Planning Policies and the planning provisions. It has not been necessary to rely on the Metropolitan Strategy Melbourne 2030 in coming to this conclusion, albeit that we are of the view that this proposal is also consistent with it. We find that there is strong policy support within the SPPF and LPPF for a development at the intensity proposed. We also consider that the proposal has been designed in a manner that accords with the thrust of the planning scheme's requirements with respect to heritage and neighbourhood character. The proposed development will not result in unreasonable amenity impacts on the surrounding area. Subject to some modifications, we consider the proposed dwellings will provide a satisfactory standard of internal amenity for future residents.

161. The Responsible Authority tendered draft conditions to be considered in the event that we were to direct that a permit be granted. Our attitude to some of these draft conditions will be apparent from the reasons above. Condition 1 requires amended plans. There are numerous amendments required, however, these are generally of a minor nature and seek to either implement changes foreshadowed by the applicant and recommended by the consultants as well as providing some additional detail. We do not consider any of these changes to be of a significant nature.

162. One of the conditions would have required deletion of reference to "steel bars to windows" and retention of existing window frames and glazing where possible, unless a suitable alternative could be proposed. It was the submission of Mr Gobbo that natural ventilation is required because these openings were to the proposed car parking areas. He suggested an alternative of retaining the window frames, without glass and with a screen behind. We consider that this would be appropriate.

163. One of the conditions would have set out office hours between 8am and 8pm Monday to Sunday. Mr Gobbo submitted that the Applicant wanted a 7am start. Mr Rantino submitted that this was not opposed by the Responsible Authority and the Responsible Authority would be agreeable to operation of the office component to be 10pm. We consider that office is a relatively benign use, and we see no reason why the office could not be used at any time. We do not consider it necessary to include a condition restricting office hours.

164. The draft conditions tendered by the Responsible Authority included five notes at the end. There is some argument about whether notes should be included or not and they certainly do not form part of the conditions. We have not included any notes as part of our order. However, we have some difficulty with Note 5 given that the issue of whether or not there is to be a public open space contribution as a condition of subdivision, and the level of any such contribution, is a matter to be considered as part of the merits of that subdivision application.

165. For the above reasons, our decision is that a permit is granted subject to conditions.

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