A permit has been granted to redevelop the land with a ten-storey building containing apartments, 300 square metres of offices and 121 car parking. The request is to amend the permit to replace the office area with 5 additional apartments, lower the height of the building by 500mm and reduce on site parking to 108 spaces.

Section 87A Planning and Environment Act 1987

Design and Development Overlay - schedule 13 [DDO13]

Clause 31.02: Use of land for purpose specified in Section 2 of land use table in B2Z.

Clauses 11, 15, 16.01-1, 16.01-2, 16.01-3, 21.04, 21.05, 21.06, 52.06, 52.34 and 65.

The land is "L" shaped with frontages to both Wellington Street and Nelson Street West, St Kilda. It has an area of about 1270 square metres.

Causell v Boroondara CC [2010] VCAT 73

Becton Living v Stonnington CC [2008] VCAT 1196.

SMA Projects v Port Philip CC [1999] VCAT 1312

(Given orally at the hearing and subsequently revised)

1. I have decided to amend the permit. The description of what the permit allows is amended to include a reduction in parking required under Clause 52.06. Although not specified, this permission is implicit in the permit. This change is corrects an omission.
2. I will also amend the endorsed plans to accord with the plans that have accompanied the applicant's letter dated 12 October. These show the changes to the use of the building, the form of the building and car parking.
3. I will delete Condition 1 as the plans referred to above incorporate the requirements of the condition. No further changes to the plans are required. I will amend Condition 9 to reflect appropriate the car parking ratios, generally allocating one car space per two bedroom dwellings, two car spaces for a three bedroom dwellings, two spaces for each of the retail tenancies and the balance for visitors.

1. Pace Development Group Pty Ltd has applied under Section 87A of the Planning and Environment Act 1987 to amend planning permit no. 357/2010. The permit was issued at the direction of the Tribunal by order dated 26 November 2010. The permit allows the redevelopment of land known as 11-15 Wellington Street and 20 Nelson Street West St Kilda for the construction of the building up to 10 storeys in height, its use for dwellings and basement car parking.
2. Notably the endorsed plans specify the two uppermost levels of the building for office use. The office area measures approximately 288 sqm. Further, up to 77-apartment style dwellings are shown on the levels below with some retail tenancies at ground level. Up to 121 car parking spaces are shown to be provided, 40 of which are within mechanical stacker units.
3. The permit was issued by the Tribunal, by consent, with the parties in Application no. P3029/2010 having reached agreement. While the parties in that proceeding reached agreement, the permit was issued at the direction of the Tribunal and therefore it must be amended by the Tribunal on application under Section 87A.
4. Pace seeks a number of amendments to the permit. I do not proposed to set out each individual amendment, as some are clearly more significant than others in terms of the matters in dispute. In general terms, the amendments of significance to the matters in dispute comprise:
   • Removal of the office use in the two uppermost levels of the building and replacement with five apartment style dwellings.
   • Reduction in the number of car parking spaces from 121 to 108.
   • The height of the building lowered by about 500mm.
5. There are a number of other relatively minor changes, such as the relocation of the mechanical exhaust vent, redesign of storage areas and matters akin to this that still require approval, however they were largely not in dispute.
6. The subject land is located on the north side of Wellington Street, about 70 metres east of St Kilda Road. The land has an "L" shape with frontages of 27 metres and 42 metres to Wellington Street and Nelson Street West respectively. The site has an overall area of about 1270 sqm. Immediately to the east is a two storey building used for a restaurant with a two storey block of flats to the west. Residential area exists to the south.
7. Under the Planning Scheme the land is zoned Business 2. A permit is required under the zone controls to construct buildings and works and to use land for the purpose of a dwelling. The relevant car parking rates are set out at Clause 52.06 as the building has a height in excess of three storeys. In addition to the decision guidelines set out in the zone control, other decision guidelines at Clause 65 to consider are at Clause 65. These include planning policy, the purpose of the zone, orderly planning and the impact on amenity.
8. The area is also affected by the Design and Development Overlay with respect to the Shrine Vista Controls. The representative of the Shrine Vista Trustees advises that the Trustees no longer have a concern about the proposal as there is no increase in height and the footprint of the building has not altered.

1. In considering the merits of the application, it is relevant to understand the limit on the ambit of discretion that can be exercised. The application is not seeking to review a decision to refuse the grant of a permit. I am not required to consider whether the permit should be granted. The permit has already been granted. The application involves an amendment to a permit. In line with the principles set down by the Tribunal, I am required to consider the changes to the permit and their impact bearing in mind the relevant matters to be considered under the Planning Scheme and the legislation. There is a limit to what I am able to consider.
2. I appreciate that the objectors have concerns about a range of matters concerning the development. These include the height of the building, traffic, parking, shadows, overlooking etc. The total impact of shadows cast by the building, traffic, car parking and inconvenience during construction are all matters that are relevant to the consideration of the merits of a proposal when considered in its totality, or afresh. However, in the case of an application to amend the permit, my consideration is limited to the impact of the amendments or changes for which permission is sought[1]. This approach is consistent with the views expressed in Causell v Boroondara CC[2] and Becton Living v Stonnington CC[3].

Is the change of use from office to residential acceptable having regard to planning policy?

1. The central issue from Council's perspective relates to whether or not the change of use from office to residential undermines the ability for the outcome envisaged under current strategies introduced under Amendment C62 being achieved. The Council contends that with the adoption and implementation of Amendment C62 to the Port Phillip Planning Scheme, there has been an "180 degree" shift in the policy position which applies to the area within which the subject land lies. The policy "shift" has occurred since the Council decided it would agree to a permit for the original scheme.
2. Under the current MSS, the municipality is divided into areas of various degrees of change including substantial, moderate, incremental and limited residential growth. Under the MSS, higher density housing is specifically encouraged and directed to areas allocated for substantial growth. Wellington Street is not one of these areas.
3. Rather, the MSS classifies Wellington Street as a "Specialised Activity Centre". The strategies for this activity centre, as set out in the MSS[4], encourage the consolidation of this centre for commercial and office uses, discourage retail and new residential uses and also seek to ensure new development responds to the varied scale of development on the north and south side of Wellington Street which varies between 2 and 4 storey buildings. Further, under the table at Clause 21.03-2, intensification of housing is not specifically supported as either a primary or secondary function in this particular type of activity centre.
4. The Council therefore argues that the change in land use from office to residential goes against the expressed policy position set out in the new MSS. Ms O'Connor supports this view.
5. While the subject land is zoned Business 2, "dwelling" is a Section 2 use. It is a "permit required" use. It is not prohibited. It is also a use that has already been permitted on the land.
6. While Mr Beard suggests that there has been a shift in policy position, it is important to recognise that a policy must not be construed as a statutory control. The words of the policy "discourage" residential use, they do not say prohibit residential use. It would be wrong to interpret a policy in this way.
7. As noted by the Tribunal in SMA Projects v Port Philip CC, policy must be applied in an intelligent and flexible way having regard to the entire strategic framework and also to avoid unfortunate outcomes. Although there has been a change in policy position, policy needs to be applied with a degree of common sense having regard to the particular circumstances at hand. It would be inappropriate to apply policy in a way that does not take into account the individual circumstances that apply to a particular case. To this extent, it would be wrong to interpret or construe the policy no new housing whatsoever could be established in this area irrespective of the circumstances.
8. It is relevant that a permit has been issued within the recent past for a large development on the land for higher density residential development. As noted by Mr Bisset, the permit is not an old permit, having been issued within the last 12 months or so. It is also a permit issued with the Council's agreement. This is not a case where the applicant seeks to amend an old or outdated permit, or to revive the permit through amendments. Rather, it is a permit that can be acted on within its original lifespan.
9. Even if the building allowed under the permit accommodates about 288 square metres of offices, the reality is that it is a minor component of the overall redevelopment. From a policy perspective, the provision or otherwise of 200-300 square metres will not fundamentally change the nature of the development for which a permit has been granted. It is effectively a residential development. Although technically mixed use, by no stretch of the imagination can it be said that the commercial (office) component is significant. It is still a very minor component. I do not see how the loss of this small office will undermine the outcome sought under current policy for this site or the area generally.
10. Put simply, the change sought in this case needs to be put into proper perspective. It is minor in the overall scheme of things. Mr Bisset suggested that the "horse has bolted" in terms of this site being used for residential purposes given that a permit has been granted. He is right. I conclude that the change in land use proposed in this case is very small, minor in nature and therefore will not undermine the policy outcome now sought with the approval of Amendment C62.
11. I understand the Council's apprehension that there are other sites in Wellington Street for which permission is being sought for apartment buildings. However, I do not see how the change sought in this application and this decision will be of significance, assistance or relevant to those matters. This case involves changes to an existing permit; a permit granted for a substantial higher density residential development. The change involves five new apartments. In my view, it is significantly different to a new proposal which seeks to establish a new high density residential use. Such a proposal must be assessed in its totality, afresh, against the planning scheme as it now stands, and not with the limits that are in play in this case. It is in this light that I say that I doubt my decision in this matter be very relevant to the consideration of new proposals. It may well be that there are good reasons to approve residential development on other sites, but those reasons will need to considered in light of the planning scheme as it now stands and the circumstances that apply to that particular case.

1. Ms O'Connor is concerned that the proposed amendments will result in increased traffic problems in the area. Ms O'Connor described the issues facing existing residents in the immediate area and the difficulties they face with respect to traffic movements and volumes.
2. I understand Ms O'Connor's concerns about traffic issues in this particular area. However, what I am required to assess is the impact which the proposed change would have on traffic in this area. My view is that the change in land use, from office to residential, to a small part of the building, will make little difference to the traffic in this area. The difference is likely to be minor, if not negligible. I accept Mr Bisset's argument that it is the provision of car parking that will drive the amount of traffic, that is, the more parking provided, the more likely that there will be increased traffic.
3. This proposal involves a reduction in the number of car parking spaces to be provided. I expect a reduction in traffic, albeit small. Traffic impacts are not a proper basis on which to reject this proposal.

1. I am satisfied that sufficient car parking is to be provided.
2. The amount of car parking to be provided for the residential component is consistent with Standard B16 at Clause 55. Now whilst Clause 52.06 specifies two spaces per dwelling, this requirement applies to all dwellings across metropolitan area. The Tribunal has held on many occasions that the application of the Clause 55 rates at Standard B16 are appropriate for apartment development of this type. Further, there is good reason to reduce the standard car parking rate in this particular area. It is clearly well served by excellent public transport.

1. With the exception of the balcony at the eighth level, there is no material change to the external form of the building other than a small reduction in height by about 500mm. Accordingly, the height, bulk, shadow, daylighting impacts remain essentially the same. There is no additional impact. The changes to the building form are acceptable.

1. I do not accept that the proposed amendments will give rise to overlooking problems. The standards set out in both Clause 55 and the "Design guidelines for higher density housing" set 9 metres as the benchmark distance for assessing potential for unreasonable overlooking. That is not to say that overlooking does not happen at 10 or 11 metres. However, it puts into perspective Ms O'Connor's claim that the proposal would cause unreasonable overlooking to her property at a distance of about 200 metres. The distance is just too great. I am unable to agree that there is unacceptable overlooking.
2. With respect to the neighbouring property, the larger footprint of the seventh level will block direct downward views from the new apartments in the two uppermost levels which have a smaller footprint. I am unable to conclude that there would be overlooking issues with respect to the immediately neighbouring properties.

1. Ms O'Connor raises concerns about waste management and construction management. However, these are matters already covered by the permit. Permit conditions address these particular matters. The Responsible Authority will need to be satisfied that satisfactory arrangements are made for waste management and for the construction process to occur in a way that would not result in unreasonable impacts on amenity.

[1] For example, will the changes cause more shadows, increase traffic and parking demand etc.

[4] Strategies 6.6. 33, 6.6.34 and 6.6.35.