Ms J Brennan appeared on her own behalf and on behalf of Ms J Phibbs and Mr S Barak.

1 On 8 September 2005, Pace Development Group Pty Ltd lodged an application for a planning permit with the Glen Eira City Council seeking permission for the construction of 19 apartment style dwellings and 2 shops within a 4 storey building with basement car park on land known as 114-120 Patterson Road Bentleigh [the site].

2 The council advertised the permit application and received 4 objections including a petition with 18 signatures. Concerns were raised in the objections about overdevelopment, traffic and parking impacts, various amenity impacts [overlooking, shadows, noise, loss of light]; height and character; quality of the design as well the impacts associated with the construction of the building and its basement.

3 The council subsequently decided to refuse the application on 5 grounds. In summary, the grounds of refusal say that the proposal does not represent a satisfactory response to state and local policies; it is an overdevelopment and fails to respond to neighbourhood character particularly due to its height and bulk; the building would result in unreasonable impacts on the amenity of neighbouring properties, and the standard of amenity for future residents would not be acceptable.

4 Pace is asking that I set aside the council's decision and grant a permit for the proposal.

5 Various matters were raised and discussed during the course of the hearing; however, they can be distilled into the following key issues:

•

Are the height and bulk of the building acceptable?

•

Would the proposal have unacceptable impacts on the amenity of neighbouring properties?

•

Would the proposed apartments provide future residents with satisfactory amenity?

6 The site comprises 3 adjoining lots located at the eastern edge of the Patterson shopping centre, a relatively small local activity centre that is centred on a railway station.

7 The site fronts the south side of Patterson Road, between Anderson Street and Railway Crescent. The main body of the site is rectangular with a frontage of about 31metres and depth of about 36.6 metres along its east side boundary. The site also includes a 3 metre wide strip of land that extends from its southwest corner to the east side of Railway Crescent. The site has an overall area of about 1186 square metres[1]. The site is affected by covenants; however, it was common ground that the proposal would not breach the restrictions set out in the covenant.

8 The site is reasonably flat. There are various buildings on the site including a somewhat dilapidated single storey timber dwelling and garage; 2 shop buildings, one being single storey and the other 2 storeys high; and a substation located on a strip of land between the dwelling and the shops. The garden/open space areas surrounding the buildings are in unkempt condition and devoid of significant vegetation. A 1.83 metre wide easement containing a sewer pipe runs along the site's southern boundary.

9 Properties surrounding the site include dwellings to the east, south, and northeast with retail and residential buildings to the west and northwest.

10 Ms Phibbs occupies a dwelling on the property immediately to the east of the site. Ms Phibbs dwelling is similar to the dwelling on the site in terms of its position, height and scale; however it is kept in much better condition. The area to the rear of Ms Phibbs' dwelling comprises a somewhat open backyard largely comprising lawn areas.

11 A group of single storey villa style units forming part of a development fronting Anderson Street exist immediately to the rear of the site. The villa units are setback about 3 metres from the common boundary with the site. The setback areas are used as small courtyards. The villa units have floor levels that are elevated off the ground and have some windows facing toward the back of the site. From the north facing windows in Ms Brennan's unit, I was able to look over the boundary fence toward the back of the buildings on the site as well as other buildings on Patterson Road including a relatively recent 3 storey apartment block. Other residents within neighbouring units would have a similar outlook.

12 Single storey shop buildings and the 3 storey apartment block to which I previously referred exist to the west of the site.

13 Bendigo Avenue extends in a northerly direction from Patterson Road directly opposite the site. Single and double storey shop buildings fronting the north side of Patterson Road exist to the west of Bendigo Street while single storey houses exist to the east.

14 The proposal [2] involves the construction of a 4 storey building containing 2 shops and 18 apartment style dwellings over a level of basement car parking. The existing buildings are to be demolished.

15 The building would provide for 2 shops with a combined total of about 187 square metres of floor space fronting Patterson Road. The building has a contemporary design style.

16 The proposed apartments are designed to be either fully on one level; or straddle 2 levels, similar to a townhouse style dwelling. The apartments provide for either single or 2 bedroom accommodation with open plan living areas. Open space would be in the form of ground level courtyards and upper level balconies. A lift near the building's Patterson Road frontage provides access between the basement and all floor levels within the building.

17 The building is designed to provide for the 2 shop tenancies flush against the front boundary; with 2 dwellings fronting Patterson Road presenting staggered front setbacks of 4.5 metres increasing to 5.5 metres. The eastern half of the development would provide for 3 storeys, with the ground level setbacks varying from 1.8 metres to 3.6 metres, with the upper levels progressively stepped back to between 1.8 and 6.3 metres at first floor level and to about 7 metres at second floor level. A fourth level is proposed over the western half of the site.

18 The stepping back of the building is also proposed to the rear, commencing at about 2.3 metres at ground level, then increasing to 5.32 to metres at first floor level, 9.435 metres at second floor level and 12.2 metres at fourth floor level.

19 A total of 22 car parking spaces are to be provided within the basement car park. Access to the car park is to be via a ramp that extends off the 3 metre wide strip from Railway Crescent.

20 It is also proposed to relocate the substation on the site to the southeast corner of the basement.

21 Under the Glen Eira Planning Scheme, the western half of the site now occupied by the 2 shops is zoned Business 1while the lot occupied by the dwelling is zoned Residential 1[3].

22 The 2 shops are to be located on that part of the site zoned Business 1. "Shop" is an "as of right" or no permit required use in the zone. "Dwelling" is also an "as of right" use in the zone provided that the width at the ground level frontage does not exceed 2 metres. This requirement is met because the pedestrian entry to the apartments is located on that part of the site zoned Residential 1.

23 However, a permit is required under the Business 1 zone control at clause 34.01-4 for the construction of the building and carrying out works.

24 "Dwelling" is also an "as of right" or no permit required use within the Residential 1 zone. However, a permit is required under clause 32.01-4 for the construction of more than 1 dwelling on a lot. The building is more than 3 storeys. As such, this same clause says that the provisions of clause 55 do not apply to this building. Rather, the proposal is to be considered under DSE's "Guidelines for higher density residential development". However, Mr Adams and Mr Govenlock agreed that the standards at clause 55 can be used to assist the assessment of proposals like this. In light of my findings with respect to the height of the building, I agree with this proposition.

25 Car parking requirements are set out at clause 52.06. The table to this clause says that 8 car spaces per 100 square metres of shop space and 2 spaces per dwelling are required to be provided. This would mean that 51 car parking spaces would need to be provided; 15 for the shops and 36 for the apartments. However, clause 52.06-1 says that a permit can be granted to reduce or waive the amount of car parking that needs to be provided taking into account matters set out in the decision guidelines.

26 The purpose of the zone and the decision guidelines at clause 65 require that consideration be given to the various policies set out in both the State Planning Policy Framework [SPPF] and the Local Planning Policy Framework [LPPF]. The relevant policies were set out comprehensively in the submissions presented by Mr Adams and Mr Hooper as well as Mr Govenlock's evidence report. I do not propose to set out the details of all the policies in these reasons; rather, I will refer to them as appropriate later.

27 It is appropriate though that I note the policies that are most relevant to the consideration of the proposal in the SPPF include clause 12 which is based on the metropolitan strategy Melbourne 2030; clause 14.01[Planning for urban settlement]; clause 17.01 [Activity Centres]; clause 18.02 [Car parking and Public Transport Access] and clause 19.03 [Design and Built form].

28 In relation to the LPPF, the objectives and strategies set out at clause 21.03 [Strategic Framework]; clause 21.04 [Housing and Residential Development], clause 21.06 [Business]; clause 22.07 [Housing Diversity Area Policy] and clause 22.08 [Minimal Change Area Policy] are the most relevant.

29 Not unlike many cases, the council and the objectors are not suggesting that the site is unsuited to being redeveloped for shops and dwellings. The council and the objectors acknowledged that some form of redevelopment could occur on the site; however, it is their position that the intensity and form of what is proposed is too great for the locality and would result in unreasonable impacts on amenity. The applicant's position is that the intensity and form of the proposed development has responded appropriately to the context and that it would not have unreasonable impacts on amenity.

Are the height and bulk of the building acceptable?

30 Decisions about whether a particular built form is reasonable need to take into account a range of factors including the zoning; the attributes of the site, its location as well as its relationship with neighbouring properties. While these factors are relevant considerations, the direction given by the planning scheme's policies is fundamental to determining whether the intensity of the development form proposed and its consequential impacts on the character of the area and amenity are acceptable.

31 In this case, the policy context that applies is complex.

32 First, the site is in 2 zones, each of which has a different purpose. For example, the purpose of the Business 1 zone specifically encourages the intensive development of business centres for a range of uses. Residential accommodation is one of those uses. The purpose of the Residential 1 zone contemplates that it is a location where a different types of dwellings can be provided at a range of densities. The purpose of the zone does not call for intensive development; rather, it seeks development outcomes that are respectful of neighbourhood character.

33 The site is also partly within an activity centre that is based around fixed rail public transport. In this regard, the policies at clause 12.01 which are based on Melbourne 2030 encourage new development to be concentrated at activity centres and near existing infrastructure.

34 I agree with Mr Govenlock's view that the policies within the SPPF send out the very clear message that higher density development is encouraged in and around activity centres. The objective at clause 12.01 is "to facilitate sustainable development that takes full advantage of existing settlement patterns, and investment in transport and communication, water and sewerage and social facilities". The strategies for activity centres include building them up "......as a focus for high quality development, activity and living....." It is also policy to locate "a substantial proportion of new housing in or close to activity centres" and "to encourage higher density housing development on sites that are well located in relation to activity centres and public transport".

35 Consistent with the thrust of State Planning policy the council's local policies also encourage "housing diversity", including medium density housing "in preferred strategic locations that have good access to public transport"[4] as well as other facilities. The policy at clause 22.07 calls these preferred locations Housing Diversity Areas. Local centres, like the Patterson shopping centre, are one of the Housing Diversity Areas identified in the policy. There is no doubt that, at least in part, the site is located in an area where the council's own local policies encourage increased densities.

36 However, the above policy position applies to the full spectrum of activity centres. It must also be acknowledged that not all activity centres are the same, in terms of size, form and function and, accordingly, expectations as to what can happen need to take this into account. Planning policy recognises this.

37 For example, because of its size, the Patterson shopping centre could be regarded as a Neighbourhood Activity Centre under Melbourne 2030. While clause 12.01 encourages higher density housing in and around a centre of this type, the policy also asks that such development be ".....designed to fit the context and enhances the character of the area". This can be contrasted with the policy direction given for higher order principle and major activity centres where the same "constraint" is not applied. The policy position provides greater latitude to depart from existing character in higher order centres compared to those lower down the hierarchy.

38 Local policies within the scheme are consistent with this policy direction. For example, the policy at clause 22.07 specifically directs more intense housing forms to Housing Diversity Areas. However, the objectives of the policy also say that the "density, mass and scale of residential development is appropriate to the location, role and neighbourhood character of the specific housing diversity area". Under this policy, it is clear that the most intense forms of development are directed to urban villages, the Pheonix precinct and the 10 neighbourhood centres that are identified. The policy goes on to "recognise neighbourhood centres as locations which provide significant opportunities for housing diversity, but at a lesser scale and density than developments in urban villages and the Pheonix precinct."

39 The policy position for smaller "locals centres" like Patterson is that "any residential development is designed and sited to minimise adverse impacts on adjoining and existing residential properties by way of building bulk, overlooking and overshadowing".

40 What the above analysis shows is that while more housing and increased densities can be anticipated in all activity centres, the greatest degree of change is directed to the higher order centres with development in the smaller more localised centres to be more responsive to and respectful of the existing context, particularly when located adjacent to residential properties.

41 However, in the case of the Patterson and Gardenvale Centres, the policy at clause 22.07 goes on to recognise that "more intense forms of mixed use/ residential development" may be appropriate in these commercial areas compared to other locals centres. Whereas the policy seeks to limit building height in local centres to 2 storeys, this does not apply to the Patterson and Gardenvale centres. Nonetheless the policy goes on to say that "gradual increases in height between existing and new buildings are encouraged" and that where the building heights beyond those that are prevailing are proposed, the building should be designed to reduce visibility of the upper storeys.

42 A factor that further complicates the policy context in this case is that the boundary between the Housing Diversity Areas and the Minimal Change Areas to which the policy at clause 22.08 applies falls down the middle of the site, essentially in line with the boundary between the business and residential zone. Unlike the Housing Diversity Areas policy, the policy for Minimal Change Areas does not seek to promote medium density housing; rather, it is directed toward achieving development outcomes that protect the low density and predominantly single dwelling character of residential areas. Although the policy objectives include promoting a diversity of dwelling layouts and sizes, the policy clearly calls for less intense development in terms of lower site coverage, greater setbacks and more open space compared to Housing Diversity Areas with the aim of achieving development that is 'respectful' of neighbourhood character.

43 In light of the policies that apply, it was Mr Adams contention that the proposal is only partially consistent with policy. He said that while the redevelopment of that part of the site within the Business 1 zone is supported by the policies at clause 12.01 and 22.07, the proposed development over the Residential 1 zoned component would not be consistent with the Minimal Change Area policy.

44 It seems to me that the approach taken by the council is somewhat simplistic. It is not appropriate to apply policy in such a black and white way, particularly when the line that differentiates the policy approach to be taken happens to run through the middle of a site.

45 As noted by the tribunal in SMA Projects v Port Phillip CC[5] ".....policy must be applied in an intelligent and flexible way having regard to the entire strategic and policy framework affecting the future use of land while at the same time avoiding unfortunate outcomes in individual permit applications". Applying the local policies in a way whereby half the site is in a Housing Diversity Area and the other in a Minimal Change Area is unhelpful. The reality is that the site is located at the edge of an activity centre where increased density is contemplated by the policy at clause 22.07. It would be sensible to acknowledge that the residential property concerned is located at the interface with a Housing Diversity Area and, at the very least, that a development providing a transition to the Minimal Change Area would be reasonable. Such an approach would not be contrary to policy; rather, it would be consistent with clause 22.07-3.1 which encourages "..... a decrease in density of residential development as the proximity to the commercial area of the neighbourhood centre decreases."

46 I have come to the conclusion that it would not be inappropriate to redevelop this entire site for some form of higher density housing that generally accords with the policy for Housing Diversity Areas provided that the design acknowledges the site's transitional location adjacent to a Minimal Change Area.

47 The position advanced on behalf of Pace was that the proposed development has been designed to do this.

48 Mr Czarny said that at present, the east end of the Patterson Activity Centre lacks critical mass with the more intense commercial activity occurring in the area to the west of the railway line. Mr Czarny expressed the view that given the context and the availability of a site capable of accommodating intense development, it would be appropriate for it to be developed with a notable building that would provide some balance to the centre and define its eastern edge.

49 Mr Govenlock and Mr Czarny both referred to the way that that the most intense part of the proposed development has been positioned adjacent to the commercial properties to the west of the site with the building designed to step down towards the east and rear where the site has boundaries in common with residential properties. With respect to the specific issue of building height, Mr Govenlock and Mr Czarny both noted that the top level has been positioned towards the northwest corner of the site and the footprint is much smaller than the level below.

50 The question in this case is whether the proposed building fits in with the intensity of development that is envisaged by policy for local centres of this type. My conclusion is that the proposed development is too intense and the degree of change is more than what is contemplated by policy.

51 The site's context needs to be put into perspective. The site is located within an activity centre that is based around a railway station. However, the activity centre concerned is at the bottom end of the activity centre hierarchy.

52 The prevailing height of development in the Patterson Activity Centre is clearly 1 to 2 storeys. The 4 storey height of the proposed building represents a substantial departure from the prevailing height of development within the centre and the surrounding residential area. The policy contemplates development that exceeds the prevailing height in the Patterson Activity Centre; however, it also calls for buildings to be designed to reduce the visibility of the additional storeys.

53 The proposed building has been designed so that the third and fourth floor levels are less than the footprint of the ground and first floor levels. However, I do not accept that these measures would be successful in reducing the visibility of the upper levels.

54 As I have previously noted, the site is located on the edge of the activity centre. It has a direct interface with low scale, single storey residential development to the east, northeast and south. Those properties are within Minimal Change Areas. They are not areas where a great deal of change is envisaged. As such, the proposed building would be highly exposed and remain so, not just to the immediately adjacent residential properties, but also the hinterland areas beyond. Because of this, the building would be perceived as high, large and bulky. There is no doubt that the built form presented would be a substantial and radical departure from what exists. It goes beyond the type of change that is envisaged by policy for a small, lower order activity centre of this type.

55 My view may have been different if the site was in a more central location within the activity centre and did not have a direct interface with conventional residential properties. In such circumstances, there would be more scope for development on surrounding properties in line with the direction given for Housing Diversity Areas that would mask or decrease the exposure of a building like this thus reducing its visual impact. However, the site's location on the edge of the centre and intimate relationship with residential properties constrain its potential to be redeveloped with a "robust" building of the type proposed in this case.

56 Given the context of the site and balancing the policies in the scheme, it seems to me that the proposed building is essentially 1 storey too high. A building that provides for a 3 storey height over the western half of the site reducing to 2 storeys over the eastern half would present a better transition in height and overall "fit" with the area.

Would the proposal have unacceptable impacts on the amenity of neighbouring properties?

57 The council and objectors submitted that the proposed development would have unreasonable impacts on the amenity of surrounding residential properties. Specific concerns were raised about the bulk of the proposed building; the adequacy of car parking and access; traffic; overlooking; overshadowing and loss of sunlight; loss of skyline views; noise and difficulties associated with the construction of the building.

58 Before turning to these specific issues, it is appropriate to say something about the approach to be taken in assessment of amenity impacts given the site's context at the interface between an activity centre and residential area. The tribunal has often said that sites located at the interface locations present difficulties and require a balanced approach to be taken. In this regard I refer to the comments of the tribunal in Keghlan Pty Ltd v Mornington Peninsula Shire Council[6], when it stated:

With respect to transitional sites or sites located at the interface of zones, the Tribunal has said on numerous of occasions that there needs to be an expectation that in each zone, the use and development of land will be constrained or influenced by the adjacency of land in the other zoning. It has been said, for example, that dwelling owners/occupants if they occupy premises at the interface with a commercial or industrial zone, cannot expect to enjoy the same level of residential amenity as persons occupying residential properties more remote from the interface. Similarly, the Tribunal has said that persons operating businesses at the edge of a commercial zone must expect to have constraints imposed on their activities or development in recognition of the need to maintain the amenity of an abutting residential zone (or open space area), which constraints would not apply in other more central parts of the commercial zone.

59 In Buckerfield Architects v Boroondara CC[7] the tribunal expanded on this when it said:

19. I refer back to my earlier comments about the appropriateness of using this site for a commercial building and the inevitability of such an outcome given the zoning of the land and the strategic direction in the MSS. I agree with Mr Bisset that in an interface situation such as this there are competing objectives on either side of the residential / commercial divide and that a proper planning outcome is one which balances those competing objectives taking into account all of the opportunities and constraints of the site and its neighbours. Inevitably compromises will have to be made to reach an acceptable outcome which satisfies those competing objectives. The commercial site cannot ignore that they have a residential abuttal; nor can a residential property expect the sort of residential amenity one would anticipate in an area wholly zoned for residential purposes.

20 I approach the task therefore of the interface issue not with a view to achieving a perfect residential amenity outcome; nor a perfect commercial outcome. If it were that simple I could favour one over the other and (say) allow a box like office building on the boundary with extensive windows as might be found in a wholly commercial area. Or I could favour a one storey commercial building well offset from the boundary with a "forest" as a buffer in deference to residential amenity. Rather, I must look for a balance which satisfies the "reasonable expectations" of all parties.

60 Accordingly, in assessing whether or not the amanity impacts are reasonable, I have broadly followed the approach described by the tribunal in the 2 cases cited above.

61 The site has 2 sensitive interfaces, to the east and to the south. In both cases, the council and the objectors have submitted that the visual bulk presented to the neighbouring residential proeprties is excessive and unreasonable.

62 Mr Govenlock expressed the view that the mssing of the proposed building is acceptable given the stepping of the development back from the residential interfaces as the height of the building increases; the provision of setbacks that comply with standard B17 at clause 55; the level of articulation in the east façade and the substantial setback of the uppermost level from the rear boundary. Mr Govenlock conceded that the presentation of the 2 lowest levels of the rear façade is somewhat bland and additional measures are required to improve articulation. He suggested that this could be done by using different materials and finishes.

63 I accept the proposition that the uppermost level is well setback away from the east and south boundaries, and as such, it would be largely obscurred from the immediately adjacent neighbours.

64 However, I do not accept that the presentation to the neighbouring dwellings to the east and south would be reasonable.

65 The property to the east would be confronted by a 3 storey apartment style building. While the building is stepped back from the boundary, nonetheless it is continuous in its form. The rear part of the building would have a direct interface with the backyard of the adjoining property to the east. In my view, the 3 storey height of the building would have an overwhelming impact on that backyard space.

66 This is particularly so given the limited opportunity for landscaping along the east boundary. The basement level extends to about 1 metre from the east side boundary. Landscaping along the east boundary is proposed within this 1 metre strip. Given the height and continous nature of the building and the nature of its interface with the backyard of a residential property, the area provided for landscaping is inadequate.

67 I acknowldge that the policy context would support an apartment style building on this site, even over the eastern Residential 1 component. However, given the interface with a dwelling and that such dwelling is located within the Minimal Change Area, a better balance would involve the height of the building over the eastern half of the site reduced to 2 storeys with better opportunity provided for landscaping. Such a development would still present a degree of bulk; however, it would fall within the realm of what I regard as being reasonable at this interface. As it stands, the level of visual bulk presented to the neighbouring property to the east is excessive and unreasonable.

68 In relation to the units to the rear of the site, consideration needs to be given to the outlook that they have toward the rear of the site and the narrowness of their respective rear courtyards.

69 The existing buildings on the site are located toward the Patterson Road frontage resulting in the rear part of the site being largely vacant and underdeveloped. As such, this allows the units to the rear to have a somewhat open aspect with sky views. The concern is that the proposed development would enclose this open space and obliterate opportunity for sky views.

70 The neighbours to the south of the site are in a somewhat different position compared to the neighbour to the east because their interface is, in part, to land zoned for commercial purposes. Expectations as to what could occur on the site need to take his into account. A significant decrease in sky views should be anticipated.

71 Nonetheless, I do not accept that this means that the amenity of these units should be sacrificed. The units have their open space areas and oulook toward the site and this also needs to be considered.

72 The approach that should be taken at the rear of the site would involve the provision of landscaping along the rear boundary with the building stepped back so that the ground and first floor levels only would be readily apparent. The building has been designed to achieve the appropriate stepping back, but not to provide adequate landscaping. I agree with Mr Govenlock that the rear façade of these 2 lower levels is bland and requires articulation; however, more needs to be done. In particular, some opportunity for landscaping should be provided along the length of the rear boundary.

73 My conclusion is that the extent of visual bulk that would be presented by the proposed building is excessive.

74 I accept Mr Woolcock's view that the provision of 1 car space for each apartment would satisfy the demand generated by residents. Although clause 52.06 of the planning scheme indicates that 2 spaces per dwelling are required, 1 car space per dwelling is consdiered acceptable under Standard B16 of clause 55. I agree that the clause 55 rate is acceptable particularly given the size of the apartments and the site's proximity to public transport and local shops.

75 I also agree with th at the 2 small shops are likely to generate a long term parking demand of 1 car space each.

76 Based on the above, the 22 on site car spaces would meet the resident and long term parking demand associated with the proposal.

77 The council's traffic engineer and Mr Woolcock agree that the short term demand associated with the proposal, 5 to 6 spaces, can be met on street. This is particularly so given that the peak residential visitor and shop customer demand is likely to occur at different times.

78 The reliance on the narrow section of the site for access to the car park is not ideal. However, given the size of the car park, and that it essentially provides for resident and long term parking, I would not find it unacceptable.

79 There was no evidence to back up the cliam that the road network cannot accommodate the amount of traffic generated by this proposal.

80 I do not accept Mr Adams assertion that the proposed development would result in substantial overshadowing of the properties to the east and south.

81 Shadow diagrams were submitted by the applicant. The accuracy of the diagrams was not challenged. I agree with Mr Govenlock that the diagrams show that there would be no addional shadows cast over properties to the south. Shadows from the building would fall within the shadows cast by the boundary fence.

82 The property to the east would experince additional overshadowing in the late afternoon period. The extent of overshadowing would, however, fall within the paremeters of what is acceptable under ResCode.

83 Mr Govenlock agreed that maintaining the privacy of neighbouring dwellings is an important consideration. In this cae, the applicant proposes to provide screening devices to balconies to prevent direct views down into neighbouring open space areas. This is an acceptable approach to avoiding unreasonable potential for overlooking.

84 The proposed building has been designed to step back away from the east side and rear boundaries as the height increases. The setbacks at the upper levels are sufficient to ensure that the amount of sunlight penetration into neighbouring properties is reasonable. Mr Adams agreed that adequate access to daylight would be maintained and compliance with the ResCode standard is achieved.

85 An increase in activity on the site would give rise to increased potential for noise; however, this does not mean that it would unreasonable.

86 The proposal mainly involves residential use given that the retail component is very minor. The noise associated with the use [e.g. people talking, playing music, cars entering and leaving the building] would be residential in nature. It is difficult for me to come to the conclusion that the noise associated with a residential use would be unreasonable, particularly given that the site is located within an activity centre.

87 Mr Adams raised a concern about the impact that the proposal would have on the sewerage and drainage infrstructure within the rear easement. That is a matter that the applicant will need to resolve with the relevant authority.

88 Mr Adams also raised concerns about relocation of the substation. That is also a matter between the applicant and the relevant authority.

89 Objectors raised concerns about the potential for neighbouring dwellings to be damaged due to the construction of the basement level. While I can understand their concerns, the construction of basements is not unccommon. The applicant would be required to obtain a building approval at which time the impact of the basement would be assessed. If found necessary, the applicant would be required to undertake measures to protect neighbouring properties from damage.

Would the proposed apartments provide future residents with satisfactory amenity?

90 I have also considered whether the proposed apartments would provide future residents with an acceptable level of amenity.

91 In general terms, I agree with Mr Govenlock's assessment on this issue.

92 The apartments are provided with a clear sense of address and connection with the street network. The dwellings have functional internal layouts that provide good access to daylight and connection with private open space.

93 The private open space areas are appropriate for apartments of this type. On the west side, the balconies and habitable room windows are well setback off the west boundary. This ensures that these apartments will continue to receive reasonable daylight without unreasonably compromising the development potential of the neighbouring property to the west.

94 The residents will have reasonable privacy.

95 Safe and secure car parking and external storage facilities are provided.

96 All of the features demonstrate that the internal amenity of the apartments is acceptable.

97 While the site is partly zoned Residential 1 and partly located in a Minimal Change Area, I accept that it is appropriate for it to be redeveloped for apartment style housing and shops. In principle, such development would accord with the purpose of the zone and the thrust of the planning scheme's housing and urban consolidation policies.

98 However, it must also be recognised that this site is located on the edge of a lower order local activity centre. It is a centre that can accommodate more intense development and increased housing density; however, the building needs to "fit in" to its context and not cause unreasonable amenity impacts.

99 In this case the building is too high and bulky. It would not fit in; rather, it would present a substantial departure from the prevailing height and character of the area. The bulk presented to neighbouring properties is excessive.

100 I will therefore affirm the council's decision. No permit is granted.

[1] I note that the consultants acting for the applicant gave various figures for site area; Mr Hooper, Mr Govenlock and Mr Woolcock 1186 square metres, Mr Czarny 1040 square metres while the plans say the site area is 1915 square metres. I have adopted the 1186 figure as it is consistent with my own calculations.

[2] At the commencement of the hearing Mr Hooper applied to substitute amended plans. The other parties offered no objection to this. I allowed the amendment under clause 64 in schedule 1 of the VCAT Act. The description of the proposal is based on the amended plans.

[3] The site is also covered by the Development Contributions Overlay. However, as the provisions of this control were not relevant to the matters in dispute, I have made no reference to it in my reasons.

[5] [1999] VCAT 1312

[6] [2000] VCAT 2538

[7] [2004] VCAT 659