1. Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 the application is amended by changing the name of the applicant to "Oakleigh Development Pty Ltd".
2. Leave is given to the permit applicant to substitute for the permit application plans, the amended plans circulated in accordance with the Tribunal's directions, being plans TP00 - TP19 inclusive dated July 2009.
3. In permit application no. TPA/36719 the decision of the Responsible Authority is affirmed. A permit is not granted and no permit is to be issued.

Mr T Montebello, solicitor of Maddocks Lawyers. Mr M Diedun town planner of CPG Australia Pty Ltd gave evidence.

Mr M Naughton, solicitor of Planning and Property Partners. The following persons gave evidence:

• Mr R Kelderman, town planner of Contour Consultants Australia.
• Mr J Talacko, environmental scientist of Ark Resources Pty Ltd.
• Mr S Hunt, traffic engineer of Cardno Grogan Richards.
• Mr J Patrick, landscape architect of John Patrick Landscape Architects Pty Ltd.

Mrs F Smith, President, Oakleigh & District Historical Society Inc. Ms L Falduto in person (Day 1).

It is proposed to redevelop and convert the existing Motel into 52 dwellings. Five building modules are proposed. Three buildings, Blocks B, D and E, involve varying extents of demolition and re-use of the existing building fabric. Block B would remain single storey while the balance would be double storey (except for the western end of Block E that would remain single storey). Two new buildings are proposed, Blocks A and C. Both contain double storey townhouses fronting Dandenong Road. 59 car spaces are proposed on-site.

Clauses 32.01 and 52.29. Clause 55 (as varied) applies.

Clauses 11, 12, 14, 15.11, 15.12, 16.02, 16.05, 18.02, 19.03, 21, 22.01, 22.04, 22.05, 22.07, 52.34 and 65.

The 44 room Oakleigh Motel is located on the south-west side[2] of Dandenong Road (Princes Highway) between Huntingdale and Clayton Roads. The property also has a frontage to Surrey Crescent to the west. The land is 5,760 square metres in area. It contains three single storey buildings associated with the Motel. The land abuts a service station and single storey dwellings to the west. A church with a large parking area to its frontage is to the south. A recreation reserve is to the east.

1. Oakleigh Development Pty Ltd proposes to redevelop the Oakleigh Motel to provide 52 dwellings. The proposal comprises five buildings, three of which involve retention and re-use of parts of the existing Motel. Two new buildings comprising double storey townhouses would flank the retained single storey Block B fronting Dandenong Road. The other two Motel blocks would be modified and extended by double storey additions.
2. A permit application lodged with the Monash City Council to undertake this project was refused by the Council. The Council's grounds of refusal focus on heritage issues, neighbourhood character outcomes, and car parking. These grounds are supported by Respondent Objectors who have raised other concerns including overshadowing, overlooking, visual bulk, privacy, noise and traffic impacts, particularly associated with Surrey Crescent.
3. As Oakleigh Development Pty Ltd has applied for the Council's decision to be reviewed, the Tribunal must decide whether to grant a permit and, if so, what conditions should apply. Since the Council's decision, the site has been included on the Victorian Heritage Register and a permit has issued for the proposed development from Heritage Victoria. Thus, as no planning permit is required under the Heritage Overlay that applies to the land, our consideration addresses those matters for which a permit is required under the Scheme. The determinative matters, in our assessment, are neighbourhood character and the internal amenity/site layout.
4. Having considered all submissions based on the provisions and policies within the Monash Planning Scheme, assisted by our inspection, we will affirm the Council's decision. In setting out the reasons for our decision next, we do not recite all of the documentation tendered by the parties as all material is retained on the Tribunal's file.

1. A planning permit is not required for the use of the land for residential purposes. We are, however, mindful that the proposal involves re-use of the land for dwellings with the removal of the existing restaurant associated with the motel (Mexican Cantina).
2. More relevantly to the exercise of discretion, the proposal has the potential to positively contribute to the Scheme's housing diversity outcomes.[3]
3. We were advised that a housing society or similar body might participate in the project but Mr Naughton said the Tribunal should not assume that outcome. Accordingly, we have not given particular weight to the possibility of the development offering affordable housing as part of a social housing scheme.

Is the proposal acceptable in terms of character considerations?

1. The review site abuts a service road associated with the Princes Highway. It abuts a recreation reserve to the east, with commercial/ industrial uses further east on land zoned industrial. A service station is to the west. On the west side of Surrey Crescent there are also single storey dwellings, three of which are directly opposite the review site. A church with a large apron for car parking is to the south. The site currently has a low key presence assisted by the landscaped corner to Surrey Crescent/Dandenong Road. The site's frontage to the Highway is open with low scale building form and a low fence associated with the front Motel building and Cantina. Along the site's frontage to Surrey Crescent there is a colourbond fence with planting behind it and one (emergency access) gate.
2. The purpose of the Residential 1 Zone is to encourage residential development that respects the neighbourhood character. Rescode (Clause 55) requires a new development to respect the existing character or contribute to a preferred character. The character policies at Clause 22.01 do not apply with respect to a preferred character outcome because the review site is within a Heritage Overlay. The adjacent land to the west and south is within Residential Character Area B. That provides a basis for our understanding as to how that area might evolve in accordance with the desired future character statement. The heritage policy at Clause 22.07 could be said to be inapplicable because no permit is required under the Heritage Overlay, even though the review site is within such an Overlay to which the local policy applies. Thus, we must essentially rely on the directions set by Clauses 16.02 and 21, the purpose of the Residential 1 Zone and Clause 55 while also having regard to the policies for the Highway location and the nearby Residential Character Area B.
3. Clause 21.03 refers to the City's Strategic Framework Plan and states:

The major strategic directions identified on the plan include:

• Maintaining and enhancing the established Garden City Character of Monash on both private and public land including along main roads.

1. This recognises the emphasis on Garden City Character which the parties agreed is a central theme in the City's vision although it is one that could fairly be differently regarded in targeted areas for medium to high rise development that are generally within principal and major activity centres. [4] The Garden City Character is referred to in the Scheme as the tree-lined and vegetated aspect of the municipality. [5] This is created by "significant tree canopy cover contained within large, vegetated, set backs and areas of open space". [6] There is also a need to ensure a suitable amount or area of space is available to allow vegetation to grow and for canopy spread.
2. The review site was described by Mr Naughton and Mr Kelderman as an "island site". We agree that it is separated from other dwellings except those to its west/south-west and then further south of the Church. However, the land is part of a larger Residential 1 Zone and abuts the Highway where there are specific policy and character outcomes being pursued through the Scheme.
3. The emphasis throughout Clause 21 is on maintaining and enhancing Garden City Character. That outcome is very relevant to our consideration, despite the site's sense of detachment from the balance of land zoned Residential 1 and the main road location. The long solid high side fence along Surrey Crescent contributes to the site's lack of integration with the residential setting of which it is partly associated. In order to give effect to the Local Planning Policy Framework, part of the enhancement a redevelopment of this site should achieve is an improved presentation to Surrey Crescent. The site also has an aspect to the park/reserve to its east that is an opportunity with respect to the amenity of dwellings proposed on the review site. There are other opportunities provided by the review site, such as its size, lack of significant vegetation that requires retention, and the limited slope. The major constraint is with respect to the heritage matters.
4. We are not privy to the restrictions on redevelopment required by Heritage Victoria although, on its face, the amount of original building fabric proposed to be retained in Blocks D and E is limited and the legibility of the original block form and layout would be affected by the expansive and cantilevered upper levels. As relevant to this proceeding, there is a need for new development to work with the retained elements to produce an acceptable character outcome. We do not consider that the retained buildings should be used to justify the approval of an otherwise unacceptable built form in relation to neighbourhood character. Neighbourhood character is not within the purview of Heritage Victoria but is critical to our discretion. A requirement to retain heritage buildings is also particularly relevant to internal amenity considerations that we discuss later. There is a balance between the advantages of adaptive re-use (including retention of heritage fabric, reducing land fill and maintaining embodied energy) and reasonable amenity expectations. That, too, may not have been considered by Heritage Victoria in the same manner as we must.
5. It is also worthwhile stating at this point that we do not consider an outcome including some two storey development is unacceptable in principle. Some Respondent Objectors raised concerns about the inclusion of double storey elements in the design. However, such forms are clearly contemplated by local policy and the important questions are with respect to the amount of development, its siting, its articulation, and opportunities to contribute to the sense of spaciousness and canopy planting.
6. The main criticisms advanced by the Council concerning character were with respect to the setbacks of townhouses in proposed Blocks A and C from Dandenong Road and front fencing to that road.
7. Mr Diedun referred to the double storey dwellings as too close to the street and too dominating, an outcome accentuated by the "heavy form" of the dwellings and fenestration. He said the desired outcome should be retention of the existing Motel (Block B) as the dominant form in the streetscape with any development to each side being subservient in the streetscape. He emphasised that this does not necessarily mean lower buildings, but requires changes to setbacks and design detailing.
8. In reply, Mr Naughton submitted the proposal is an acceptable response to character objectives set through the Scheme. Relying on the evidence of Mr Kelderman, he submitted the design responds appropriately to the existing character, retaining the local landmark in a recognisable form, with low scale development of one and two storeys consistent with the established neighbourhood character. Mr Naughton submitted a robust form to Dandenong Road is acceptable. He submitted the setbacks of Blocks A and C, a matter of particular concern to the Council, are appropriate. He also highlighted that car parking would be almost completely out of view from both of the site's street frontages. In addition, new planting would assist to enhance the landscape values of the site and Garden City Character relying on Mr Patrick's landscape plan.
9. Mr Kelderman disagreed with Mr Diedun's evidence. He said the front setbacks reflect the heritage building and step back toward the reserve and Surrey Crescent. He said the fencing, at 1.5 metres compared with Council's preferred height of 1.2 metres, would be inconsequential in achieving a suitable streetscape outcome. Mr Kelderman also gave weight to the landscape plan to provide additional landscaping and increase the number and quality of trees on the site. Street trees would also be possible, should the Council agree to their planting.
10. We prefer the evidence of Mr Diedun. While we agree with Mr Kelderman that there are policy aims to make efficient use of the site, and aspects of the development are acceptable, we consider the design has sought to position too much development on the small areas of currently undeveloped land. Those pockets of land are to the north-west (where there is currently a pool and landscaping) and north-east (where there is a car park to the north of the end wall of an existing Motel block - proposed Block D). The consequence is the siting of two blocks too close to both street frontages with insufficient opportunities on-site for landscaping. More specifically, we are particularly concerned about:
    • the siting and orientation of Blocks A and C that has little relationship to the off-set footprints of Blocks D and E (the two retained Motel wings);
    • the ground level front setbacks of Blocks A and C are shallowest close to the single storey Block B and, with the high ground level parapet and blank side walls to townhouses 3 and 4, the interface between single and double storey elements is too abrupt;
    • that relationship is compounded by raised floor levels that, combined with the front setbacks of 1.3 - 3.3 metres and bins in the small front setbacks, means very confined planting opportunities available on-site;
    • a setback between townhouse 4 and retained Block B (Unit 5) of 1 metre to the eave and 2 metres to the wall, with the townhouse forward of the outward sloping window in Unit 5, is overbearing;
    • there is limited space to create a strong landscaped corner element to Surrey Crescent - an area of the site Mr Patrick referred to as a key corner and an important visual element, an opinion with which we agree;
    • the siting of townhouse 1 on the Surrey Crescent boundary is not acceptable in that it fails to accord with Standard B6 of Clause 55 and would not meet the objective given the limited room for planting;
    • the architectural treatment of the new building elements, particularly Blocks A and C, is fairly typical of what can be seen in the area and, although that is not problematic per se, seems to miss the opportunity to create an interesting corner form and design that would pick up more elements of Block B;
    • the front fence treatment of 1.5 metres along Dandenong Road is not high enough to provide privacy to the front habitable rooms, particularly given the elevated ground levels in the dwellings to up to around 750mm, and a higher fence would not accord with the character outcomes which emphasise landscaping and a sense of spaciousness;
    • retention of the colourbond fence along Surrey Crescent, with a large bin enclosure behind, misses the opportunity to enhance this frontage. Suggestions for a "softer" fencing form and a lower form to the corner may assist. However, we think a more integrated response to fence design is needed to achieve a more open character which Mr Patrick fairly identified is part of the strategic direction for this area;
11. There would be less planting around the interior of the site than occurs today. Street trees are desirable but not enough to overcome the deficiency of on-site canopy trees. Additional locations proposed for further canopy trees in evidence can not be accommodated given the overhang of upper building levels (eg. Block B and the southern end of Block D).
12. We also find the relationship between the single storey western section of Block E (Units 1 and 11) and the balance of the double storey form to be too strong. The double storey element has a setback from Surrey Crescent of approximately 9 - 17 metres. Its breadth is around 26 metres (including balcony elements given the need to add screening) and it has a height of close to 7 metres at the ridge peak. This built form contrasts with the single storey section that has a breadth of around 16 metres and is around 3 metres high. Although this western elevation is to the side of the retained Motel units and includes new two storey form above, we find the unarticulated upper level wall and form to be quite abrupt.
13. For these reasons, we are not persuaded the proposal respects the character of the area and policy directions with respect to Garden City character. Although the application fails at this point, below we have summarised our findings with respect to the other key matters raised in submissions.

Is the proposal acceptable in terms of internal amenity?

1. A series of criticisms of the proposal raised by the Council and Respondent Objectors focused on the internal layout and amenity associated with the design. The criticisms related to energy efficiency, location of visitor parking, internal overlooking, position of dwelling entries, daylight to windows, solar access to private open space, lack of storage, lack of private open space and insufficient environmentally sustainable initiatives.
2. These submissions were challenged by the Applicant, primarily through the evidence of Messrs Kelderman, Talacko and Hunt. We also note a large number of minor modifications were agreed to by the Applicant, such additional screening, provision of more storage for dwellings and water tanks, varied fencing, and the possible deletion of one or two visitor car spaces to the south-east of the site.
3. We acknowledge that some compromises with respect to the internal layout may be acceptable given the re-use of building fabric. However, there must still be an acceptable level of internal amenity including with respect to the ease and convenience of movement within the site. Thus, although a number of the Standards of Clause 55 might not be met, the assessment of the proposal against the objectives becomes central to our consideration. In this respect, we are not satisfied that all of the applicable objectives are met.
4. The existing Motel complex comprises three buildings with two wings (each with parallel rows of units) used for guest accommodation. They have the typical format comprising parking at the front that is separated from the room's window by a covered pathway and small area of low landscaping. The signage on-site shows a one-way vehicle movement system. There is little potential for viewing between units because the front building (proposed Block B) is the manager's residence, reception and restaurant and the layout means the side of the east-west row (Block E) presents to the side of the north-south form of the building along the eastern part of the site (Block D).
5. The proposal retains the same layout. But, with a two-way movement system and additions (particularly at the upper level of Blocks D and E), the spacing between buildings is tight. This has several consequences:
   • there is potential for inter-viewing between units. For example, there would be inter-viewing between the north-facing units in Block E and the southern aspect of the units in Block B at a distance of well less than 9 metres meaning screening is required to a number of the proposed north-facing balconies;
   • other locations will also require screening. For instance, on the east elevation of Unit 5 that abuts the narrow walkway between Blocks B and C and on the west-facing windows in Unit 1 that face the common driveway;
   • Units 1 and 11 have no areas of secluded private open space;
   • a proportion of units have only south-facing windows and open space in the form of balconies;
   • the location of the townhouses, and their shallow front setbacks, means those dwellings rely on balconies that face the Highway for their private open space;
   • the ground level windows in Blocks D and E (a total of some 40 units) would receive daylight but essentially no sunlight;
   • dwelling entries in Blocks D and E could be improved by signage or some form of identification;
   • spaces for communal clothes drying, storage and water tanks for the townhouses would reduce the open space for these dwellings;
   • several dwellings have less than the required number of car parks based on Standard B16 of Clause 55;
   • the location of parking to the rear of the townhouses in Blocks A and C is tight and constrained;
   • the turning area for several visitor car spaces is tight, notably those to the south-east of the site;
   • the breadth of access aisles, including at corners within the site, is narrow due to the overhang of the upper levels to Blocks D and E and, based on Mr Hunt's evidence, would prevent vehicles such as ambulances moving through the site;
   • the proposed arrangements for waste collection require large areas of bin enclosures and on-street collection.
6. We are particularly concerned about the number of units that would require extensive screening as well as rooms with limitations with respect to daylight access.
7. We are also not persuaded to allow a development with access that is not convenient and where the movement of larger vehicles through the site is prevented by the size of the upper levels. The number of rubbish areas should be reduced with a private collection to avoid both street frontages being lined with bins on collection days.
8. Some of the problems could be addressed by changes to the plans and some would not alone be enough to provide a basis to reject the proposal given the adaptation involved. Nevertheless, we consider the combined impacts mean an acceptable outcome is not achieved based on the following objectives of Clause 55 - Clauses 55.03-10, 55.03-11, 55.04-7, 55.05-1, 55.05-2, 55.05-4, 55.06-2 and 55.06-4.

Would unreasonable amenity impacts result for nearby dwellings?

1. A number of criticisms of the proposal made by residents in Surrey Crescent focused on the potential for overlooking (loss of privacy), overshadowing, visual bulk and noise.
2. We are satisfied that none of these matters warrant rejection of the proposal for the following reasons:
   • the proposed windows and terraces would be more than 9 metres from any habitable room windows or open space in surrounding properties, achieving compliance with Standard B22 of Clause 55;
   • the double storey forms within the development would not cast unreasonable shadows to any abutting residential property at the equinox (or at any other time);
   • the noise associated with the proposed use would be typical of a residential apartment building;
   • the visual impact of the development would not unreasonably impact on the amenity of existing open spaces or habitable room windows, given the closest dwellings are on the opposite side of Surrey Crescent and the church is to the south;
   • one vehicle access to Surrey Crescent, as proposed, would not have an unreasonable adverse effect on the amenity of the closest residences.

1. As alluded to above, two dwellings would not meet Standard B16 with respect to on-site parking provision but the balance of dwellings would.
2. The proposal provides for six on-site visitor car spaces in three locations on the land. We accept Mr Hunt's evidence that the spaces could be reduced by the removal of one or two at the south-east corner, as there is sufficient on-street parking available for visitors.
3. The potential for parking on-street was a strong concern in statements of grounds, given the parking that occurs in association with the church. While mindful of the church's activities, we are satisfied that the site's long frontage to Dandenong Road is a good opportunity for parking. The provision of four or five on-site visitor spaces would be acceptable. There may even be an argument to allow that figure to be further reduced in the circumstances.

1. For the above reasons, we will not allow the Application for Review. We find there are too many issues arising with respect to the location of Blocks A and C, and the internal amenity and layout of the development, to accept submissions that the proposal would represent an acceptable outcome. We will order that the decision of the Responsible Authority be affirmed.

[1] A permit is not required under the Heritage Overlay because the site was included on the Victorian Heritage Register (H2193) on 7 May 2009. Heritage Victoria has issued a permit for the development shown on the substituted plans.

[2] Given the land is off-set from north, we have simplified directional references. We refer to Dandenong Road as "north".