Mr Derek Marsden, Ms Maria Panettieri, Ms Naomi Kumar, Ms Juliana Smith, Mr Carl Handreck and Mr Paul Simpson, all in person. Statements of Grounds from a number of other parties were also considered.

1 This is an application under Section 77 of the Planning and Environment Act 1987 to review the decision of the City of Yarra [the Council] to refuse permission for the development of a four storey (plus basement and ground level car parking) accommodating 22 dwellings at 30-42 Mater Street, Collingwood and the reduction of required car parking.

2 As a result of advertisement of the application for permit a total of 98 objections were received. The Council's Principal Planner recommended that a permit be issued subject to conditions, including a requirement for amended plans. However, a delegate committee of Council did not adopt that recommendation. On 4 November 2004 the Council issued a Notice of Refusal to Grant a Permit for the following reasons:

The proposed development is not site responsive, constitutes an overdevelopment of the site and is contrary to the State Planning Policy Framework (SPPF), Council's Municipal Strategic Statement (MSS), and the Local Planning Policy Framework (LPPF);

The proposed development will have a detrimental impact on the amenity of the properties to the north;

The height of the proposed building is not an appropriate design response and is therefore out of character with the surrounding streetscape; and

The proposal will have detrimental off-site amenity impacts as a result of increased traffic.

3 At the commencement of the hearing Mr Cicero applied to amend the permit application by substituting amended plans (dated January 2005 and identified as "Revision B") as foreshadowed in notice given in accordance with VCAT's practice requirements. The application was not opposed and we allowed the amendment under Clause 64 in Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 [VCAT Act].

4 It was drawn to our attention that the Council had not circulated draft permit conditions. Mr Mark Marsden advised that the Council sought to rely on the conditions contained in the Officer's report on the application. Mr Marsden undertook to provide a modified list of conditions that reflect changes included in the amended plans.

5 The subject site is located on the north side of Mater Street and extends between Blanche Street (to the west) and Budd Street (to the east). It is rectangular in shape with a total area of 1065m2. The frontage to Mater Street is 46.7m and the sideages to Budd and Blanche Streets are approximately 22m. A 3m-wide ROW abuts the eastern section of the northern boundary.

6 The subject site has the remnants of a brick industrial building that has been unoccupied since it was substantially damaged by fire. At their highest point the remaining walls are approximately 6m.

7 The site is located within a predominantly residential area to the south of Alexandra Parade and around 140m to the east of the Smith Street commercial strip. The area has a mixture of building types, including original single storey worker's cottages, industrial or commercial buildings converted to residential, two storey dwellings and new apartment complexes. There are also remnant industrial/warehouse development and corner hotels.

8 The land abutting the north west portion of the boundary (8-10 Blanche Street) is developed with the two double storey townhouses owned by Ms Panettieri. The properties have roller doors facing the street. Ms Panettieri occupies the townhouse closest to the subject site. Her principal private open space is a first level at the rear. However, she also uses the car space as open space. A solid wall extends along the boundary shared with the subject site. It has glass bricks associated with a ground level bathroom.

9 On the property to the north of the ROW (67 Budd Street) there is a warehouse converted to residential use. It is owned and occupied by Mr Marsden. It has a number of windows facing south, including those associated with a mezzanine bedroom. There is a roof top terrace behind the front parapet.

10 There are two double storey townhouses on the north west corner of Blanche Street and Mater Street. On the north east corner of Budd Street and Mater Street there is a single storey dwelling. On the opposite side of Mater Street, between Blanche and Budd Streets, the dwellings have a single storey presentation to the street. Two of them have higher extensions to their rear.

11 It is proposed to remove all of the existing building and construct a five level building (including basement) accommodating 22 dwellings.

12 The key features of the proposal are usefully summarised in Mr Negri's Statement of Evidence as follows:

The development is to have an overall height of 4 storeys over a basement car park. The 4th storey is to be a recessive element set back 7.112m from the north boundary, 12.072m from the western boundary, 6.4m from the Mater Street frontage and 17.645m from the eastern boundary.

•

Three storey "terraces" (Dwelling Nos. 1 - 5) addressing the Budd Street frontage and the eastern portion of the Mater Street frontage.

•

Two storey dwellings (Dwellings 7 - 10) addressing the Blanche Street frontage and part of the western portion of the Mater Street frontage.

•

Various single storey apartments (Dwellings Nos. 6, 16, 19, 20 & 21).

•

Various double storey apartments (Dwellings Nos. 11, 12, 13, 14, 15, 17, 18 & 22).

Dwelling size also various with 3 one bedroom dwellings and 19 two bedroom dwellings.

The basement level is to accommodate 30 car spaces and storage areas. Access is to be from a ramped driveway to Budd Street. Further parking for 5 visitor spaces is to be provided at ground level with access to the adjoining right of way.

13 The main pedestrian entry is proposed to be located along Mater Street. Five of the dwellings would have direct access from one of the abutting footpaths.

14 The proposed building is contemporary in appearance, utilising pressed red bricks, corrugated metal and render. The building would be 9.68m high at the parapet level of the third floor and the highest point of the fourth level would be 12.7m.

15 The subject site is within a Mixed Use Zone. Pursuant to Clause 32.04-5 a permit is required for the construction of two or more dwellings. Provisions relevant to car parking are at Clause 52.06 (Car Parking).

16 In recognition of the potential contamination of the land the subject site is included in an Environmental Audit Overlay. Nothing turns on that matter in this application for review.

17 In addition to considering the decision guidelines at Clause 65, consideration must be given, as appropriate, to the State Planning Policy Framework [SPFF] and the Local Planning Policy Framework [LPPF], including the Municipal Strategic Statement [MSS]. The written submission of Mr Marsden and the expert reports of Mr Negri and Mr Czarny provided thorough descriptions of the relevant policy context. We do not intend to reproduce that material here, but will refer to pertinent provisions in considering the issues in this application.

18 It is important to note at the outset that as the proposed development is over 3 storeys Clause 55 (ResCode) does not apply. We were advised that in 2004 a document entitled Guidelines for Higher Density Residential Development [DSE Guidelines] became a reference document to Clause 19.03. Since 30 September 2004 the Council has also had a local policy at Clause 22.10. The policy, entitled Design Guidelines for Development Above Three Storeys, applies to all new development that is not subject to Clause 55 and is on land located outside of a heritage overlay.

19 At the hearing Mr Mark Marsden, representing the responsible authority, tabled and spoke to a written submission. He called Mr Andrew Hutson, architect, to give expert evidence. Mr Paul Simpson. Mr Derek Marsden, Ms Maria Panettieri, Mr Carl Handreck and Ms Naomi Kumar made submissions. Mr Cicero, representing the applicant, spoke to written submissions. He also called Mr Nick Sideridis, traffic engineer, Mr Marco Negri, town planner, and Mr Craig Czarny, urban designer, to give expert evidence. The witnesses were made available to be cross-examined by the opposing parties and questioned by the Tribunal.

20 The written submissions of the parties, the reports of the experts, together with numerous photographs, plans, policy documents and other material tendered at the hearing, have been retained on the Tribunal's file.

21 After the hearing we carried out an external inspection of the subject site and examined the local neighbourhood in detail. We also inspected the homes of Mr Marsden and Ms Panettieri.

22 At the outset it is useful to put our assessment of the proposal into context and to briefly set out some of the basic premises upon which our detailed considerations are based.

23 The parties agreed that the subject site is highly suitable for some form of residential development and use. It is relatively large, has three frontages, abuts residential uses and has good access to a range of facilities and services that are complementary to residential use.

24 We heard no detailed submissions about the earlier industrial use, as a knitwear factory. There was, however, general support for a change to residential use.

25 We were not alerted to anything in the planning scheme suggesting that consideration should be given to whether or not a proposal is better than an existing use. Nevertheless, we are of the view that such a consideration is a matter of common sense. In this case, the form and scale of the original factory, and its current fire-damaged state, are relevant considerations. On that matter we note that in Aussie Invest Corporation Pty Ltd & Ors v Hobsons Bay City Council [Application for Review P3336/2002] Member Cimino observed that removal of outdated and unattractive industrial buildings is an obvious improvement.

26 Nevertheless, there needs to be caution in such considerations. The fact that a development is an improvement should not be seen as affording "brownie points" that can be used to justify an otherwise unacceptable proposal.

27 The zoning of the land is a further factor supporting conversion to residential use. The purpose of the Mixed Use Zone is to implement State and local policy and:

• To provide for a range of residential, commercial and industrial and other uses which complement the mixed-use function of the locality.

• To encourage residential development that respects the neighbourhood character.

28 The Municipal Strategic Statement [MSS] encourages the conversion of existing premises and new residential development within mixed use areas, or formerly marginalised industrial areas such as this_._

29 Some of the objectors were critical of the fact that the proposal is not a mixed use development, incorporating commercial or industrial uses. We do not consider that to be critical. Indeed, such uses could involve significant off-site amenity impacts. In any event, we note that the rumpus rooms that are on ground level of five units in south west corner of building would be ideal for home occupations.

30 We acknowledge the strategic significance of the site. Although it is not identified on the Strategic Framework Plan in the MSS, it is near an activity centre and is close to public transport routes. Melbourne 2030 encourages the use of such sites for higher density residential development.

31 As there is no current residential use of the subject site, it is axiomatic that the proposal would significantly increase residential density. However, the issue is what density of development the site can and should support.

32 We heard competing submissions on that matter. Mr Simpson, for instance, suggested that 22 dwellings on 6 lots of the size prevailing in the area would be an overdevelopment. On the other hand, it was Mr Negri's evidence that 10-12 townhouses would be an underdevelopment. Mr Cicero submitted that the policy context justifies a development higher than 2 storeys. Anything less would be an underdevelopment or missed opportunity.

33 We were referred to numerous recent Tribunal cases commenting that the effect of Melbourne 2030 is to emphasise the importance of optimising development opportunities where they can be achieved without unreasonably compromising other planning objectives relating to such matters as heritage, neighbourhood character or the established amenity of areas [See, for example, Keylink Properties PL v Yarra CC [1999] VCAT 242, Bamfra Nominees PL v Darebin CC [2003] VCAT 1741, Gatum Holdings PL v Banyule CC [2004] VCAT 1035 and Carlos Constructions PL v Moreland CC [2004] VCAT 1752].

34 At Clause 22.10-2, the Objectives of the Design Guidelines, that principal is re-stated as follows:

Development above three storeys should be designed to achieve a balance between the strategic importance of the site, the sensitivity of surrounding land uses and the existing neighbourhood and built form character.

35 Thus, while we endorse concept of optimisation, it needs to be acknowledged that there are critical provisos, or balancing factors, that will have a different effect in each case.

36 Some of the objectors were critical of the lack of diversity of the proposed dwellings. For instance, they referred to the absence of three-bedroom dwellings.

37 The proposal does not incorporate a wide range of dwelling types. However, we do not see that as a critical flaw. The proposed units are different to the prevailing housing type in the area. ResCode offers guidance on how we should consider "diversity". For developments with ten or more dwellings it encourages a range of dwelling sizes and types. Standard B1`3 sees diversity in terms of dwellings with different numbers of bedrooms and at least one dwelling with ground level kitchen and facilities. The proposal offers a choice of apartment-style units and dwellings with independent, direct street access.

38 We will further discuss the issue of diversity, in terms of the likely occupiers, when considering on-site amenity.

39 The subject site is not covered by a heritage overlay. However, land to the south, west, east and north east is covered by an overlay - HO321 (Gold Street Precinct).

40 Design Guideline 2.8 under Clause 22.10-3.3 states, in part:

The height of new development abutting land within a Heritage Overlay should:

• Adopt a facade height to the street frontage which is no higher than the adjacent building within the Heritage Overlay;

• Design and site taller structures so that they do not visually dominate surrounding heritage places; and

• Match the floor levels of the adjacent heritage building.

41 In this case the boundaries of the overlay raise a question about how the provisions relating to abutting land should be interpreted. Strictly speaking, the abutting land to the south is the whole of Mater Street and to the north it is the southern edge of the ROW. To the east and west the overlay runs down the middle of Blanche and Budd Streets. Although the immediately abutting land within an overlay is technically undeveloped, such an interpretation would be a nonsense. On the other hand, we are reluctant to accept that Design Guideline 2.8 effectively prohibits a facade height any higher than that of the single and two storeys adjacent buildings within an overlay.

42 We accept Mr Cicero's submission that the Guidelines should not be applied prescriptively. We also accept his submissions that we should look to the purpose of the overlay; that is, to ensure that new buildings do not detract from the significance of, or appreciation of, the heritage qualities that the overlay seeks to protect.

43 No heritage concerns were raised by Council staff. Nor was the application referred to a heritage advisor.

44 Given the strong integrity of the dwellings on the south side of Mater Street, and the width of the road separating them from the subject site, we see little danger that the proposal will have a detrimental impact in terms of heritage. Of more concern is the potential impact on the appreciation of the closer building to the north east (Mr Marden's Budd Street property). Ultimately, we think the issue is whether the proposal adopts an adequate transition to that building. It is more of a character issue related to building height and setback. That is reflected in the objectives sought to be achieved by Design Guideline 2.8, most relevantly:

To ensure that the height of new development is appropriate to the context of the area....and respects the prevailing pattern of heights of the area where this is a critical feature of a valued neighbourhood character.

45 The need for new development to respect neighbourhood character is part of the purpose of the Mixed Use Zone, a focus of MSS provisions, central to the Guidelines at Clause 22.10 and emphasised in Melbourne 2030 cases. So, what is the character of this area?

46 Our inspection confirmed Mr Negri's description of the defining characteristics of the area. He noted the predominant residential land use, with some industrial/commercial/ warehouse activities, a mix in building form, predominantly single and double storey building height with some taller buildings interspersed, a mix in building materials (timber, render and brick), a mix of roof form and

a reasonably fine urban grain derived from the narrow lot widths and spacing of dwellings punctuated by larger building forms referencing commercial/industrial/warehouse forms.

47 Our inspection also allowed an appreciation of the urban design characteristics, or existing place values, described by Mr Czarny. His observations included the following:

•

The width and proportion of streets that successfully absorbs sometimes vast shifts in both land use and building scale.

•

Mater Street serves as one of a series of delineators between more generous residential stock to the south and the more robust mixed industrial and cottage form to the north.

•

The urban condition ...is relatively hard and consolidated, with little landscaping.

•

Strong north-south corridor views, defined by hard edges. Tall, prouder buildings on corners.

•

Yet to undergo much gentrification.

•

Redevelopments primarily maintain old industrial fabric, with contemporary projections.

48 The subject site is in Precinct IC9 (Collingwood North) in the Council's Built Form Review. The Precinct is seen as a coarse grain hard edge non-residential character type and described as follows:

This is an area of traditional industrial buildings located between the heritage residential areas and strip centres of north Collingwood. The extensive use of red brick...gives it an older industrial character. The majority of the buildings are warehouses with two generous levels (3-4 storey equivalent), many with saw tooth rooflines. The area has a hard urban feel with built form extending to the front and side boundaries creating a wall of buildings at the street level, apart from areas cleared for yards and car parks.

49 The precinct covers a broad area and the description seems to be less relevant to the subject site and its neighbourhood, which is on the residential fringe of Precinct IC9.

50 It is clear that the subject site has a complex physical context. Perhaps the most outstanding feature is the width of Mater Street. Its width of 20m means that any development on the subject site is well removed from houses to south. However, it also allows fuller views of any development than would be possible in a narrow street.

51 Any third or fourth level development on the subject site will be visible from a range of vantage points. However, we consider that visibility is not the appropriate test of whether the bulk of the upper floors is acceptable. On that matter the Tribunal in Rowcliffe PL Stonnington CC [2004] VCAT 46 observed:

If mere visibility becomes the test across metropolitan Melbourne, then it will be virtually impossible to construct buildings above the prevailing scale. This, in turn, would render it impossible to achieve the clearly stated urban consolidation objectives expressed in the Planning Scheme, objectives to which Clause 11 requires us "to give effect to". The Tribunal rejects the notion that, because some of the buildings would be visible above the existing built form, they are therefore unacceptable. Rather, the test is whether the proposal is complementary to the surrounding area, and of a scale that can be assimilated without unreasonably disturbing the surrounding built environment. [Emphasis added]

52 We consider that the test articulated in Rowcliffe should be applied in this case.

53 With all of the above findings in mind, we now turn to a consideration of the more detailed aspects of the proposal.

54 Like most cases involving multi unit development the principal matters for consideration fall under four headings - built form (including bulk, height and the interface with the street), off-site amenity impacts, internal amenity and car parking and traffic. We will consider those matters in turn.

55 The most controversial aspects of the proposal fall under this general heading. They are also the fundamental basis of our major finding that the proposal, in its current form, is unacceptable.

56 Some of the objectors submitted that the proposal is of low architectural quality. Ms Kumar, for instance, described it as a mediocre development that would certainly not win any awards.

57 Such criticism is unduly harsh. Not all buildings aim to win awards. Mr Czarny is likely to be correct in stating that the site is not in an area where you are going to get a gold-plated building. Nevertheless, we are satisfied that the proposal achieves a high standard in architecture, as required by one of the design principles at Clause 19.03-2.

58 Suitable materials are proposed. In particular, we endorse the use of red pressed bricks along the Budd and Blanche Street elevations. We also endorse the overall architectural style. We agree with Mr Czarny that the building reads as a residential complex and is well designed in terms of its external expression and legibility.

59 Mr Hutson was highly critical of the setbacks and visual bulk. However, he was supportive of the overall architectural expression, particularly its articulation and modulation. He conceded that the chosen style

with the clear articulation of elements and a waving of materials has become synonymous with medium density housing developments in recent years.

60 At ground and first floor levels it is proposed that substantial sections of the building would abut the streets frontages. We consider that to be highly appropriate. It maintains the "hard edge" of the existing building. Indeed, the proposed walls are marginally lower than the existing walls. It is common in this area for 2 storey buildings to abut the frontage.

61 Small strips of landscaping are proposed, on the south east corner and the north west. Some of the objectors wanted to see more landscaping. However, given the character of the area we do not see that as necessary.

62 The proposal involves the basement projecting approximately 600mm above ground level. During the hearing that came to be referred to as the plinth.

63 The experts called on behalf of the applicant justified the plinth in terms of the separation or privacy of residents and the benefits of surveillance of the street. Mr Negri noted that under the objective relating to the maximisation of surveillance of streets the new DSE Guidelines includes Design Suggestion 2.8.2 which states:

Use level changes, especially floor and balcony spaces elevated above the street level, to allow views from residential units onto adjacent public spaces while controlling views into these units.

64 Mr Negri acknowledged that people passing would be aware of the steps to the entries and the higher floor level. Nevertheless, he considered that it would not read as a plinth.

65 It is apparent that any benefits relating to privacy and surveillance form part of a post facto rationalisation of the design. Indeed, Mr Negri conceded that surveillance advantages are a positive outcome, rather than intended consequences of the design.

66 We also note that there is a different emphasis in Clause 22.10. At Clause 22.10-3.4 Guideline 3 (Streetscape Amenity) seeks to ensure ground level facade and boundary treatments interface positively with the street. A Design Guideline refers to the provision of a high level of pedestrian amenity and visual interest by, amongst others things:

Avoiding sub-basement car parks where the structure of the car park and its vents are raised above the footpath level.

67 As the DSE Guidelines are a reference document in the State section of the planning scheme they take precedence over the local policy. However, in this case we consider that the principles of Clause 22.10-3.4 should apply. This is area of flat land where the prevailing characteristic of development is that it is squat, or close to the ground. There are few, if any, properties with steps, raised verandahs or projecting basements.

68 In order for the development to interface more positively with the street we consider that the plinth should be deleted. Although our finding is not based on the contribution of the plinth to the overall height of the building, its removal would obviously have that benefit.

69 Mr Hutson and many of the objectors were critical of the relationship with the street. They referred to the high, solid panels that would invite graffiti and the sections of high fence along the frontages.

70 Provided the plinth is removed, we consider that the interface of the development with the abutting streets would be acceptable. The existing development has almost continuous high walls presenting to the public realm.

71 Along Mater Street a number of entries would be introduced and some sections of the timber fencing would be semi-transparent. Windows and balconies above would provide a connection with the street and a sense of human scale. Along Budd Street the facade height in the north east corner would respond to the height of the building to the north. Prior to the fire a wall height of around 6m existed in that area. The Budd Street elevation would have a number of entries, with balconies and windows above street level. It is proposed to have fewer opening along Blanche Street. Nevertheless, we are satisfied that the design provides an acceptable street level interface. The brick facade would be comparable in height to the townhouses to the north. The siting maintains an undeveloped area in the north west corner, as a raised garden, with a strip of landscaping abutting the footpath.

72 There are opportunities, such as on the south west corner, for further sections of semi-permeable fencing. There was discussion about reducing the visual impact of the panels abutting the street by changing the material at the top, where it comprises a 1m-high balustrade. Provided the plinth is deleted we do not consider such a modification to the detailed design is necessary.

73 The extent of the proposed third level was the most controversial aspect of the submissions and evidence.

74 The objectors emphasised the single storey form on the south side of Mater Street and argued that four storey development would be completely out of character. Ms Kumar argued that anything taller than two storeys would be overbearing and oppressive. It was Mr Hutson's evidence that despite set back elements the exposure of the site and generous width of Mater Street would result in the visual bulk of the building remaining an impost upon the scale of the street.

75 On the other hand, Mr Cicero and the experts he called argued that given the character of the area the proposed height could be comfortably accommodated. They pointed to a number of three storey developments in the broader area, even next to single storey buildings. They noted that the many of the older industrial buildings and corner hotels are of a height comparable to three contemporary levels. The reference in the description of Precinct 1C9 to 3-4 storey equivalent buildings was invoked. Mr Czarny described the area as comprising industrial buildings interspersed with one and two storey residential. He argued that in all directions from the subject site there are larger buildings, including the four level 1960s flats to the north and newer three level buildings south in Budd Street.

76 The latter buildings were focussed on during the hearing. On an L-shaped property extending from the north east corner of Budd and Hotham Streets through to Wellington Street there are two buildings separated by a central driveway. The buildings have two and three storey sections. For convenience the development was referred to as Building 17, reflecting its number on Mr Hutson's photographs. Another three level building, referred to as Building 18 for the same reason, is on the south east corner of Budd and Hotham Streets. It involves the retention of a brick warehouse with a pop up addition set back from the boundary walls.

77 Buildings 17 and 18 were used by the parties to illustrate contrary arguments. For instance, Mr Hutson and the objectors considered the buildings to be acceptable but argued that they should not be used as precedents as they are very different styles to that proposed for the subject site. On the other hand, Mr Cicero and the experts he called argued that Buildings 17 and 18 indicate that it is common for buildings abutting the street to have at least two levels and clearly visible third levels. Mr Negri saw similarities between Building 17 and the proposal, particularly in their marking of the corners.

78 Mr Cicero also submitted that Buildings 17 and 18 indicate that the Council has recently been prepared to accept three storey development on sites that had tighter restrictions, in that they are zoned Residential 1 and subject to a heritage overlay. He argued that the mixed use zoning of the subject site and the lack of an overlay control warrant more intensive development.

79 We are not persuaded by Mr Cicero's argument. Ultimately, we need to look at the specific context of the subject site, rather than what has been allowed on other nearby sites. The greater width of Mater Street will mean that any building on the subject site will be much more prominent than buildings along Budd Street. Building 18 is a warehouse conversion that has little in common with the proposal. Building 17 has different presentations to the wider Wellington Street and narrow Budd and Hotham Streets. Two storey height on the corner of the latter streets minimises the perception of bulk. We are less enthusiastic about how the northern part of the building presents to Budd Street. The third level has a questionable setback and presents a solid wall to the north, cluttered with external services and equipment.

80 Pursuant to Clause 22.10-3.3 the height of new development should be appropriate to the context of the area and respect the prevailing pattern of heights of the area. The context of the subject site comprises predominantly single and two storey buildings. While there are some higher buildings in the broader area, including Buildings 17 and 18, they do not define the prevailing character. In the immediate area there not stark shifts in building scale.

81 It was Mr Czarny's evidence that the presentation to Mater Street is broken up into eight parts, reflecting the grain of the area. We accept that the design responds to that aspect of the character of the area. However, the response is only to the vertical sense of "grain". We consider that the proposal does not adequately respond to what could be called the horizontal "grain", or the pattern of building height. The proposal does not represent a minor, and thus comfortable, transition from surrounding development.

82 As depicted Drawing TP10 the recessing of Level 3 is minimal. Much of the western facade is set back only 900mm, although there is more recessing in the north west corner with a setback of just over 5m from the neighbouring property. The setback of the eastern facade is more varied, but sections are setback only 617mm and there is development close to the north east corner of the site. There is also recessing in the south west corner, where there is a 4.238m setback from Mater Street. However, along most of the southern facade at Level 3 the proposal involves the walls of six of the dwellings projecting to within 1.8m of the frontage. The walls are closer to the frontage than the walls on the level below (set back 2.4m) and overhang the balconies below.

83 The projecting walls, to be treated, in either corrugated metal or render, are intended to be strong visual elements. However, we do not consider that this is a location that can readily support three levels of development so close to the street. It can be contrasted to the locations, such as the Nepean Highway, as shown on photographs tendered by Mr Czarny.

84 Our finding is that the minimal setback of the facades at Level 3 is a fundamental design flaw. We agree with Mr Hutson that the extent of development at that level would be significantly out of character. We strongly disagree with Mr Czarny's characterisation of the proposal as a relatively modest and comfortable bookend to the southern extent of the Blanche and Budd Street urban block.

85 We agree with Mr Hutson that the design needs to play down the third level. It needs to provide for meaningful or appreciable setbacks at Level 3. We suggest that that could be achieved by having no development within 5m of the Mater Street and Blanche Street boundaries. The latter would align with facades of 8 & 10 Blanche Street. There should also be no development within 4m of the Budd Street boundary. That would be comparable to the secondary setback of the building to the north.

86 The proposal incorporates an upper level with a relatively small footprint. Dimensions of 16.8 x 9m (not including balconies) yield an area just over 150m2. The upper level is set back 12m from the west boundary, 17.6m from the east, 6.4m from the Mater Street frontage and 7.19m from the rear boundary.

87 In most circumstances those dimensions would lead to a recessive element. Furthermore, as noted by Mr Czarny, the use of glazing and lighter materials than those used for the more robust base would add to the recessive nature of the upper level. However, our finding is that on this site a suitably recessive top Level 4 cannot be achieved. Setbacks and materials would not effectively reduce its visual impact.

88 The area has a wide variety of building types. However, what it does not have is buildings with four levels, except for the 1960s flats abutting Alexandra Parade that have three levels over under croft parking. The proposal would introduce a new element. The width of Mater Street would open up clear views of the upper level from many vantage points.

89 As we observed earlier, the area is not characterised by stark shifts in scale. Given the prevailing scale, and particularly the single storey scale on the southern side of Mater Street, we consider that the proposed Level 4 is unacceptable.

90 Mr Hutson considered that a fourth level could be acceptable if it was reduced in size and only a service area. We do not necessarily agree with that concession. In any event, the modifications we consider to be necessary at Level 3 leave little room for any development above it that would be further recessed.

91 Any redesign should delete the top level. We appreciate that if the upper level is removed there would need to be an alternative "capping" of the building.

92 Having considered all the submissions and evidence, and carefully inspecting the area surrounding the subject site, we have reached the conclusion that the proposal does not satisfy the test in Rowcliffe. Simply put, there is too much development above Level 2.

93 The submissions and evidence we heard on the remaining issues related to a four storey building. Although our findings on the built form effectively determine the outcome of this review, we need to set out our findings on the other issues. They are part of our consideration of the application. They are also relevant to any modified plan. The matter is further complicated by the fact that if development is not above three storeys, DSE Guidelines and Clause 22.10 do not apply. ResCode comes into play.

94 No one suggested that the proposed development would cause any unreasonable overshadowing of neighbouring properties. However, concerns were raised about the impact on daylight, the potential for overlooking, noise impacts and changes to the outlook from neighbouring properties.

95 Ms Panettieri was concerned about the prospect of interference with daylight received in her ground floor bathroom. Daylight is now obtained via glass blocks in the wall along the common boundary. The plans show a fence between the ground level open spaces for Units 11 & 12 extending to the glass bricks. The plans also depict a small screen fence in the vicinity of the glass bricks, apparently designed to stop anyone coming up to the glass blocks.

96 In effect the proposed development would result in a larger light court adjacent to the glass blocks. However, Ms Panettieri's concern is legitimate. It would be appropriate for her to be consulted about the precise location and form of the screen fence.

97 In relation to overlooking of properties to the north we are not concerned about views of distant private open spaces. Ms Smith and Mr Handreck mentioned the possibility of views of the back yard of their property at 16 Blanche Street. Their property, however, is at a distance well beyond the 9m threshold that is generally considered to warrant protection.

98 Potential overlooking of the properties immediately to the north must, however, be addressed. In that regard Mr Marsden was concerned about views into his upper floor terrace, and ground level open space, from the northern edge of the balcony for Unit 1. He was also concerned about the lack of treatment of living room windows (of Units 1 & 14) that would face his dwelling. Ms Panettieri was concerned about angled views of her rear terrace from Unit 14 windows.

99 Mr Cicero clarified that further modifications could be made to ensure privacy. He advised that all north-facing windows on Levels 2 & 3 (the 1st and 2nd floors) would have obscure glass to 1.7m, with clear glass that can be opened at the top. We endorse those modifications. Any modified plans should include screening as suggested by Mr Cicero.

100 Mr Cicero advised that it is not proposed to treat edge of the balcony of Unit 1. We consider that the privacy of the neighbour requires further screening.

101 Given our principal finding about the upper floor, we do not need to consider Mr Cicero's submission that the 4th level windows do not need to be treated due to their setback.

102 Ms Panettieri was also concerned about the privacy of the front of her property. She submitted that the space behind the roller door is used as an area of secluded open space, as well as a car space. Ms Panettieri argued that there could be views from the windows and balcony of Unit 10 and the balcony of Unit 20. The similar space at 10 Blanche Street would also be affected.

103 Mr Cicero, and the experts he called, argued that the space is not a sensitive one that needs to be protected. Mr Cicero submitted that his client is entitled to treat it as a car park or front garden, not a secluded private open space.

104 Our inspection indicated that the space is, or can be, used as a small secluded private open space. Its enclosure by a roller door, allowing the option of parking, is irrelevant. Development on the subject site should be designed to acknowledge the sensitive use of neighbouring land.

105 Concerns about aural privacy were raised by Mr Marsden. He referred to the likely noise emanating from nine households facing his property. He claimed that there had been minimal impact when the factory operating, particularly as there was no impact during the sensitive night hours.

106 We accept that the use of the proposed development could alter Mr Marsden's environment. However, we are not persuaded that that is a ground to reject the proposal.

107 The proposal would clearly change the outlook to the south from the properties of both Mr Marsden and Ms Panettieri. However, it must be remembered that there has been a 6-7m wall along, or close to, most of the northern boundary. The proposal introduces significant setbacks from the northern boundary.

108 Mr Marsden was particularly concerned that the proposal would block views to the south he currently enjoys from his upper level terrace. To the south west those views take in a section of the CBD skyline.

109 It was Mr Cicero's submission, supported by the evidence of Mr Negri and Mr Czarny, that as the building on the subject site (at least before it was fire-damaged) interrupted city views there would be no substantial change to Mr Marsden's outlook as a result of the proposal.

110 As neither of the expert witnesses had ever stood on Mr Marsden's terrace it was unwise for them to make any assessment of the views. In any event, their assessment was found to be incorrect. Mr Marsden tendered a photo, taken before the fire damage, showing city views from the terrace. Our inspection confirmed that there would have been such views.

111 It is unclear precisely what views the proposed development would block. It is unlikely that there would any longer be views of city buildings. That is likely to be the case even with the deletion of the upper floor.

112 However, any interference with city views can have little bearing on our considerations. We endorse Mr Czarny's opinion that the planning scheme does not seek to protect private views. On that matter we note that in _Juliano, Furletti and Scott &Ors v Melbourne CC & Omiros Pty Ltd (_Application for Review No 1999/19285) the Tribunal was called on to make made findings about the preservation of the view of the Melbourne skyline from residential units in Carlton. The Tribunal noted the consistently applied principle that there is no legal or planning "right" to a view. The Tribunal noted that it is not difficult to think of situations in rural or coastal locations where the view from a particular property may be of substantial importance in terms of amenity and the loss of a view may be accordingly a significant relevant consideration. The Tribunal went on to state:

However, in an inner urban situation, and particularly in a location where planning controls allow and encourage high or medium density developments, a view is something that is fortuitously enjoyed and cannot be the sole or even major determinant of what type of development may be permitted in adjacent areas.

...we conclude further that the reference to protection and enhancement of "landmarks, views and vistas" in Clause 19 of the Planning Scheme is designed to encourage the urban form to respect significant viewpoints from the public realm rather than to protect private views. The protection of private views in areas where high or medium rise buildings are encouraged would in our view cause significant inhibition upon development and would be opposed to the central thrust of current planning policy.

113 The comments in Juliano, Furletti and Scott & Ors can be distinguished in that we are not looking at a case where preferred or prescribed height controls are in place. Nevertheless, the general principle is relevant. There cannot be a reasonable expectation that broad views will be retained, particularly when there is nothing in the planning scheme that directs the Council or the Tribunal to consider views as an issue.

114 We consider that the outlook from Mr Marsden's terrace would not be so profoundly changed so as to represent an unreasonable impact on amenity. Expansive sky views would be retained.

115 Concern about the internal amenity of some of the units was a focus of Mr Hutson's expert evidence. The objectors also addressed matters under that heading.

116 Firstly, Mr Hutson highlighted that the proposal does not include a lift from the basement. He argued that the requirement to climb numerous flights of stairs would be a significant burden. He highlighted that the occupiers of Units 17, 18, 22 would have to climb four flights to reach the top floor of their apartments, where their kitchen and living rooms would be located. Mr Hutson also noted a number of other two-level apartments where the occupants would be required to climb three flights of stairs to reach the top floor, as well as third level apartments requiring such a climb. Mr Hutson argued that the lack of a lift requires a substantial effort to access all levels of the apartments. He saw problems with carrying shopping, daily use and installing furniture.

117 Mr Hutson also suggested that the ability to carry large pieces of furniture to the top levels would be severely hampered by the tight "U" shape of the public stair in the foyer.

118 Mr Hutson did not see this issue as one just of internal amenity. He argued that the multi-level design for most of the units, together with the lack of a lift, will limit the sector of society who would be comfortable with long term occupation.

119 Mr Hutson's concerns were shared by some of the objectors. It was suggested that the development would only suit the fit and healthy. However, it was also implicit in Mr Hutson's evidence and many of the objectors' submissions, that future occupiers would probably be renters. Mr Handreck was explicit on that matter. He submitted that the predominance of renters would lead to less feeling of ownership and would have an impact on the community. More generally, Ms Kumar submitted that the development could not accommodate the range of people it is desirable to have in a local community.

120 The proposal is clearly aimed at a limited section of the community. Mr Cicero conceded that it is not aimed at the elderly, disabled or large families. As Mr Negri pointed out, the split level nature of many of the units would mean they would not be attractive to the elderly in any event. On the other hand, while conceding that the development is not barrier free, Mr Czarny considered that it has the capacity to accommodate a diversity of people.

121 Mr Cicero stated that a lift could be included if we considered its absence to be a fatal flaw. However, for the following reasons, we do not consider it to be essential:

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The provision of a lift has affordability implications. Mr Cicero estimated the cost of a lift at $110,000-$120,000. That cost would obviously be past on to purchasers.

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Our principal finding regarding the acceptable number of storeys effectively addresses the worst case. No residents would need to climb four flights. A redesign with less development at the third level may also reduce the reliance on stair access.

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While it is not an ideal situation, we consider it acceptable for a number of apartments to have access over three flights of stairs. It was Mr Czarny's evidence that three storey townhouses rarely have lifts, whether or not there is a basement.

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While Mr Hutson saw the provision of a lift as desirable, under cross examination he conceded that he was not advocating that every 3-4 level apartment must, or even should, have a lift.

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With the proposed layout not all apartments would benefit from a lift. That is, Units 1-5 are effectively self-contained. They do not rely on access from a lobby and shared corridors.

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Following on from the above point Mr Czarny suggested that the absence of a lift represents a trade off against having some units with direct street access and an outward face, and thus more integration with the street. If all access were to be internalised with a lift it would be unlikely for a design to also have external access.

122 Secondly, Mr Hutson pointed out that eight of the units have a southern orientation that would limit solar access to habitable rooms and balconies. He drew attention to specific units where protruding stair elements would preclude direct sunlight to internal spaces. He also cited bedroom where artificial light would be necessary during daytime use due to the deep recessing of windows.

123 Mr Mark Marsden argued that the Council's policy at Clause 22.10, together with the DSE Guidelines, now offer a clear set of standards for developments over 3 storeys. However, we have not found those documents particularly helpful.

124 Guideline No 5 (On-Site Amenity) at Clause 22.10-3.6 has an objective To ensure that new development provides appropriate amenity for future occupants. However, it does not define what appropriate means. Furthermore, the references to sunlight in Guideline No 5 pertain to private and secluded open spaces, not habitable rooms. With respect to such rooms an objective simply calls for an appropriate level of natural daylight. It was Mr Negri's evidence that all habitable rooms would have adequate access to daylight.

125 Clause 22.10-3.6 includes a Design Guideline that private open spaces have access to direct sunlight. While the southern facing balconies would not satisfy that guideline, we accept Mr Negri's evidence that the lack of sunlight would be compensated by excellent views.

126 Under Objective 2.6 of the DSE Guidelines there is a Design Suggestion to Orient new buildings to optimise sunlight and amenity for dwellings, private open spaces and adjoining public spaces. We acknowledge that it is desirable for apartments to have a northern aspect and for them to be designed to achieve a high level of energy efficiency. However, we do not believe it is possible, or realistic, that every dwelling have a northern orientation. Other factors may come into play. As argued by Mr Negri, it would be possible to have all dwellings with a north-south orientation, but the yield would be much lower (perhaps 10-12 dwellings).

127 We are satisfied that a reasonable number of apartments will have a northern orientation. Those with a southerly orientation will have the benefit of views.

128 We were assured that the mandatory energy rating can be met and nothing was presented to demonstrate that this would not be so.

129 Thirdly, Mr Hutson observed that from the living rooms of apartments 14, 15 and 21 the view would be restricted to that of an adjacent narrow balcony with a 1.7m high screen.

130 We appreciate that the outlook from those apartments is restricted due to screening that is required to protect the privacy of neighbours to the north. However, the apartments have the benefit of a northern orientation. In the preparation of modified plans attention could be given to providing a form of screening that restricts downward views but maintains some sense of openness.

131 Fourthly, Mr Hutson was critical of the poor spatial amenity of two of the apartments. He referred to the small size of the living room and single bedroom of Unit 14_._ Mr Hutson also referred to the small size, absolutely and relative to other units, of the living area of Unit 21. As noted above, Mr Hutson was also critical of the poor visual outlook from these apartments.

132 We do not consider that the amenity of those units would be unacceptable. We accept Mr Negri's view that the units would be suitable for a different clientele. Nevertheless, we would look favourably upon any improvement to the size and layout of those apartments.

133 Ms Panettieri, an interior designer, raised a further criticism relating to internal amenity. She observed that there would be the prospect of views, or overlooking, from some of the higher balconies to lower ones. She cited examples. We consider that that matter should be addressed in any modified plans, by either siting changes or screening.

134 Lastly, we note that concerns were raised about the inadequate size of some of the balconies. We consider that they should have a minimum area of 8m2.

135 Mr Hutson considered that the amenity problems he identified could stem from attempting to squeeze too much onto the site and indicate that the proposal is an overdevelopment. Using stronger language, Mr Simpson argued that the proposed development resembled a rabbit warren and that the internal amenity problems would lead to unhappy people.

136 We do not agree with that characterisation of the proposal. While we do not endorse the bulk and height of the proposed development, we consider that with relatively minor changes the apartments would offer an acceptable level of amenity to future residents. However, we wish to stress that if modified plans are prepared we would definitely not be supportive of any attempt to maximise the number of apartments by further "squeezing up" the design.

137 The submissions and evidence about traffic and parking related to a four storey development. Despite our finding that such a development is unacceptable, it is pertinent to discuss our findings on these issues as many of them are relevant to an assessment of a modified proposal.

138 The fundamental concern of the objectors is that the proposed development fails to provide an acceptable level of on-site parking and that new residents and their visitors will inevitably add to the existing parking problems in the area.

139 With respect to the proposed on-site parking we note that the applicable rates for a development greater than 3 storeys are at Clause 52.06. Pursuant to the table at Clause 52.06-5 the proposed development generates a requirement for 44 spaces. Although only 30 spaces are proposed for residents, Mr Sideridis considered that it is appropriate to reduce the requirement. In reaching that conclusion he had particular regard to the proximity of public transport, the results of parking demand surveys conducted by his firm and the guidance offered by ResCode.

140 The parking demand surveys indicate high occupancy rates of on-street spaces on many local streets. As summarised in Mr Sideridis' report:

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there are very few unoccupied car spaces along the site frontages during the day;

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during the evenings these areas are significantly less occupied;

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during the day, the areas closer to Smith Street generally have higher occupancy rates than those west of the site, with the converse being the case in the evenings.

141 Nevertheless, Mr Sideridis concluded that capacity is available in the vicinity of the subject site to accommodate some off-site demand that may be generated by the development. He also anticipated that the proposed development would generate a significantly lower demand for on-street spaces than the previous factory use.

142 The survey data generally supports the objectors' observations that on-street spaces are already at a premium. However, some of the objectors argued that the situation is even worse than indicated in the surveys, in that the results are flawed or no longer valid. For instance, Mr Marsden noted that the survey was carried out just after the factory on the subject site had shut down and soon after 3 factories to his north had ceased use. One of the latter now has residents who increase the demand for Budd Street spaces. Furthermore, since the survey the supply of spaces in Budd Street has diminished due to street works. Mr Simpson noted that consideration should have been given to weekends when the factory outlets in Smith Street are busy. Mr Handreck suggested that the traffic analysis has not considered the complementary nature of parking associated with residential and industrial uses, in that they have principal demands at different times.

143 We acknowledge those criticisms of the survey material. On-street demands are likely to be even greater than the high occupancy levels reported by Mr Sideridis. We also accept Mr Hutson's view that given the absence of a lift from the basement, residents may park on the street to avoid even one flight of stairs, at least when making short stops at home. That view was not disputed by Mr Sideridis. He conceded that if nearby on-street spaces are available the absence of a lift will make their use even more attractive.

144 Irrespective of such considerations Mr Sideridis' conclusions are still valid with respect to the provision of spaces on the subject site. We endorse his conclusion that given the significant on-site supply of spaces the proposal would be self sufficient with respect to parking. Accordingly, it would not need to rely on any available on-street spaces. The existing parking supply deficiencies, or as Mr Cicero colourfully put it, the sins of others, cannot be addressed by this development_._ It would be self-sufficient and would not make the existing situation any worse_._

145 Although ResCode does not apply to a development greater than three storeys, we consider that the rates in Standard B16 (one space for each one or two bedroom dwelling) are a useful guide in assessing an appropriate car parking rate for an apartment-style development. The provision of 30 car spaces for 22 apartments is well in excess of the B16 requirement for 21 spaces. As highlighted by Mr Cicero, 8 of the dwellings would have 2 tandem spaces. We agree with his suggestion that that is a rare allocation for a two bedroom dwelling in the inner city.

146 Given our understanding of the parking situation in the area we consider that it would be very important for any modified proposal to similarly have a generous parking supply.

147 The City of Yarra Parking Policy of 2001 calls for a higher rate (1 space for one bedroom units and 1.5 spaces for 2 bedroom units). However, the proposed provision marginally exceeds the policy's requirement for 32 spaces.

148 Our finding is that it is appropriate to reduce the Clause 52.06 requirement. In reaching that conclusion we have had regard to the matters raised by Mr Sideridis. We also note that the Council and its officers have not taken issue with the quantity of car spaces proposed.

149 The Council's concerns under this heading, as expressed in the fourth ground of refusal, relate to detrimental off-site amenity impacts as a result of increased traffic. However, Mr Marsden conceded that in the light of the traffic surveys now available it is hard to sustain that ground of refusal.

150 Although the Council did not pursue the matter, some of the objectors raised concerns about increasing the overall traffic flows in the area. Concerns about resultant pollution were also raised.

151 We appreciate that there are existing problems. The Eastern Freeway feeds onto Wellington and Smith Streets and motorists use local streets as "rat runs". There are also extended "peak" periods. However, it was not suggested that the road network would be unable to cope with the traffic generated by the use of the proposed development. Despite the concerns raised by the objectors we accept Mr Sideridis' expert evidence that the proposal would have very little impact on traffic levels.

152 The outstanding issues under this heading relate to the gradient of the ramp and the provision made for bicycles and visitor cars.

153 The proposal has a ramp gradient of 1:20 for the first 4.5m and then a gradient of 1:58 for 7.8m. Mr Sideridis argued that such a gradient would achieve the objectives of smooth transition and safety in a similar way to a ramp with a gradient of 1:20 for the first 6m, as sought by the Council.

154 The deletion of the plinth would have substantial repercussions for both the design of the basement and the entry. It would also alter the necessary ramp gradient. We consider that a modified ramp should be at a grade that is to the satisfaction of the responsible authority.

155 The plans show numerous bicycle racks in the ground level under croft, to the rear of the visitor car spaces. Concerns were raised about the security of that area. Mr Cicero suggested that the bicycles could be secured within a cage, with a gate and intercom system for visitors entering the lobby from the rear. We consider that that idea should be adopted.

156 The provision of 5 visitor car spaces marginally exceeds the ResCode requirement of 4 such spaces for a development of 22 apartments. It was argued by some of the objectors, and the Council's representative, that as the spaces would not be readily visible they would not be used. It was also suggested that the lack of visibility could create a secluded area, or hang out, used for illegal or undesirable purposes.

157 Ms Panettieri suggested that the north east corner of the building could be cut out to increase visibility of the area. There was also discussion about securing the car spaces. For instance, a condition suggested by the Council calls for amended plans to show:

Addition of a car park door along the north elevation. This door is not be [sic] roller door and must be constructed from a high quality material with 50% transparency to allow visual connection between the interior of the building and the lane, to the satisfaction of the Responsible Authority.

158 Such a condition seems more applicable to a domestic garage. It is unclear how it would work where 5 spaces are provided. The creation of a barrier could limit the use of the spaces. How would the door or doors be activated? The prospect of the noise of any associated mechanism was of major concern to Mr Marsden. No one offered a design solution to such problems.

159 Having considered the submissions and evidence our finding is that the location of the visitor spaces is acceptable. We understand that Council officers recommended the location, after early plans showed visitor spaces in the basement. There are problems associated with securing the spaces, particularly the likelihood of noise associated with a barrier. On balance we do not consider that a door should be provided. It is likely that the increased use of the ROW, and additional perception of surveillance from windows and balconies, would ensure that the safety of the area is not diminished.

160 We have identified a number of deficiencies with the proposal. It should not be approved in its current form. As discussed earlier, extensive amendments would be required to result in an acceptable outcome for this site.

161 To recap, the basic changes required include:

• The removal of the plinth.

• Consequential changes to the layout of the basement and entry to it. The number of car spaces should at least comply with the relevant standard for a building not exceeding 3 storeys.

• Substantial setbacks at Level 3 and the deletion of Level 4.

• Secure bicycle storage.

• Maximisation of semi-permeable fencing along street frontages (where not enclosing secluded private open space).

• Treatment of all north-facing windows on Level 2 & 3 (the 1st and 2nd floors) to ensure privacy of properties to the north.

• A wing wall on the north edge of the balcony of Unit 1.

• A means of ensuring daylight and protecting the privacy of the ground level bathroom of Ms Panettieri.

• Balconies with a minimum area of 8m2.

• The avoidance of overlooking from higher balconies to lower ones.

• Balcony screening treatments that prevent unreasonable overlooking but provide a sense of openness in outlook.

• Possible changes to the size of nominated apartments.

162 Such changes would substantially affect the composition of the building. There would inevitably be numerous design and siting implications. The development would also be subject to ResCode. As there are too many uncertainties, it is not possible for us to formulate a schedule of required amendments. It would be up to the architects to resolve design issues.

163 We appreciate that all of the parties have dedicated considerable time and effort to these proceedings. The hearing occupied two and a half days and included evidence from four witnesses. As there is general agreement that the subject site offers an excellent opportunity for residential redevelopment, we consider that the applicant should not be required to start the application process again from the beginning.

164 Accordingly, we have decided to issue this interim decision. We will adjourn this matter for 21 days. During that period the applicant must advise the Registrar and the other parties whether it wishes to accept the invitation to amend the plans in a manner that responds to these reasons. If the applicant elects to prepare amended plans the Registrar should also be advised as to how long their preparation would take.

165 If the applicant elects to prepare amended plans, and subsequently files them in accordance with the timeframe, we will then determine the future course to be taken. This may include circulating the plans to the other parties and giving them the opportunity to make written submissions on the amendments. It may be necessary to reconvene the hearing. However, we need to make it clear that the purpose of any such submissions and hearing would not be to open the whole matter up again. Considerations would be confined to the amendments only.

166 We also wish to stress that the opportunity we are affording the applicant does not of course mean that automatic approval will follow.

167 If the applicant elects not to prepare amended plans we will proceed to finalise our decision in this matter on the basis of the plans substituted at the hearing.