1 Prior to commencement of any building and works the applicant must submit plans and elevations of the development(three copies) showing the development as substituted at the VCAT Review hearing P1559/2005 but modified to show:

i

Two car spaces allocated for the retail occupation at 317 Huntingdale Road (unless otherwise varied by the responsible authority)

ii

The width of balconies to dwellings D10, D11, D12 and D13 increased to a minimum of 1.6 metres.

iii

The option for the applicant to remove screens from the balconies that:

•

Front Huntingdale Road, and

•

Overlook the roofs of 317-317 Huntingdale Road.

iv

Sufficient headroom in the car park, including an excavated floor to enable double level car stackers which are designed for independent access to each car space in the respective car stacker.

When approved the revised plans and elevations shall be endorsed and will form part of the permit.

2 The use and development shown on the endorsed plans must not be varied in relation to layout, materials, dimensions, levels or any other matter, without the written consent of the responsible authority.

3 All on-site stormwater is to be collected from hard surface areas and must not be allowed to flow uncontrolled into adjoining properties (including the road reserve). The plans must show a drainage scheme providing for the collection of stormwater within the site and for the conveying of the stormwater to the nominated point of discharge.

4 Driveways and car parks are to properly constructed and formed to such levels that they can be used in accordance with the plans and drained and maintained to the satisfaction of the responsible authority. The car spaces must not be used for any other purpose to the satisfaction of the responsible authority.

5 Prior to the commencement of the student accommodation the applicant or the owner must demonstrate there is adequate provision for:

a.

the collection of domestic and commercial waste only from an enclosure within the development; and

b.

access is available (such as by key) to the bin storage area to be provided to the company or authority responsible for collecting the waste.

6 Any footpath crossing or nature strip damaged as a consequence of the works must be repaired at the cost of the developer and to the satisfaction of the responsible authority.

7 The buildings must be finished in materials and colours depicted on the plans and attached schedule. Highly saturated or primary colours must be used in small areas for accent only and must not be prominent in the streetscape.

8 No equipment, services, architectural features or structures of any kind, including telecommunication facilities shall be permitted above the roof level of the building or be visible from outside the premises unless otherwise agreed in writing by the responsible authority.

9 External sign lighting must be designed, baffled and location on the land to the satisfaction of the responsible authority.

10 Prior to the occupation of the student accommodation the operator under this permit must establish a management plan for the site that must be submitted to the satisfaction of the responsible authority. The management plan must not be modified without the written consent of the responsible authority. The plan must be made available for examination at any reasonable time at the direction of the responsible authority. The plan must cover the following areas:

a.

the name and after hours number submitted to council, including updated information with any ongoing replacement of managers;

b.

a service provider agreement that documents the terms of accommodation, limits on the numbers of persons accommodated in each room, limitations on car parking and house rules;

c.

cleaning and maintenance of the building; and

d.

Parking of bicycles

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

•

the development is not started within two years of the date of this permit; or

•

the development is not completed and the uses have not commenced within four years of the date of this permit.

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

Mr S. Jones of Counsel. Mr Jones called evidence from

•

Mr R. Umbers, Town Planner

•

Mr M. O'Brien, Traffic Engineer

1 Peninsula Planning Consultants Pty Ltd seek a review of Monash City Council's decision to refuse application No. TPA/32462 for extension to existing shops and apartment premises and development of student accommodation at the corner of Huntingdale Road and Railway Avenue in Huntingdale.

2 Monash City Council refused the permit application on four grounds relating to:

•

The building is out of scale and too high for the area;

•

There is inadequate car parking and the method of car parking is unsatisfactory;

•

There is inadequate open space; and

•

The proposal is an overdevelopment of the site.

•

The proposal is an appropriate response to State and Local Planning Policy Frameworks, the purposes of the Business 1 Zone;

•

The proposal is site responsive in terms of its location in a commercial precinct with the only interface with buildings used for commercial or industrial purposes with no adjoining residential uses affected;

•

The proposal provides an innovative contemporary design contributing to the diversity of the area and taking advantage of existing public facilities;

•

The car parking is appropriate and can be managed by appropriate service agreements.

•

construct an additional shop premises (in addition to five existing shop premises;

•

modify an existing caretaker's dwelling;

•

modify two existing two-bedroom dwellings;

•

erect two new two-bedroom dwellings at third floor facing Huntingdale Road;

•

erect a new two-bedroom dwelling facing Railway Avenue;

•

Twenty -six student dwellings (in one-bedroom or bed sit accommodation).

5 The new student accommodation is located in a four storey building whilst the existing two storey structure would be enlarged to become three stories. New car parking will be provided for 20 vehicles of which 18 spaces are in 9 double level car stackers. Two other car spaces are to be provided with dual access via a rear lane and the common driveway entrance.

6 The existing vehicular crossover to Railway Avenue will be relocated 6 metres westwards along Railway Avenue and serve as the primary vehicle access to the site. Separate pedestrian entrances will be provided to the student accommodation, apartments and shops.

1 The subject site is located on the north-west corner of Huntingdale Road and Railway Avenue in Huntingdale. The site is currently occupied by single and two storey buildings principally containing five shops, two dwellings and a caretakers dwelling. The western and southern section of the site is currently unoccupied. An examination of the site and an aerial photograph show its previous use was as an unmade, unformed, informal car parking area which could hold up to 14 vehicle spaces at a time.

2 Land to the north comprises two storey building used for shops and what appears to be residential accommodation above. Land to the rear on the other side of a concreted right-of-way comprise factory building used for motor repair and related businesses.

3 Land on the other side of Huntingdale Road comprises shops and other commercial premises. These premises have angle parking in front in Huntingdale Road whereas parking on the western side is 90 degree angle.

4 Land to the immediate south on the southern side of Railway Avenue is a large VicRail commuter carpark with direct access to the Huntingdale Railway station.

5 Land further south is the North Road "overpass" which effectively separates the northern and southern sections of Huntingdale Road.

6 The subject site forms the south-western portion of a local activity centre which is surrounded by extensive Industrial 1 zoned land and used extensively for variety of factories and industrial uses. Much of this area has a relatively run-down appearance with the Huntingdale shopping centre providing a mediocre retail environment. Efforts have been undertaken by the Council to uplift the appearance of the activity centre through tree planting, new pedestrian paving and identification signage and related road works. However, the area suffers from a lack of exposure to main traffic thoroughfare.

7 The subject site is zoned Business 1 under the Monash Planning Scheme. The purpose of this zone is to encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses.

8 Land to the immediate west and land to the immediate south which is a railway car park is zoned Industrial 1. The Industrial 1 zone land is located within a Design and Development Overlay although there is no such Overlay affecting the subject site or the Business 1 zone in general.

9 A permit is required to use land for accommodation and for buildings and works under cl.34.01-2 of the planning scheme. A permit is also required under cl.52.06-1 of the planning scheme to waive or reduce the amount of car parking.

10 There are various planning controls and policies of relevance including:

•

Clause 11 - Principles of Land Use and Development Policy

•

Clause 17.01 and 17.02 - Activity Centres and Business Policies

•

Clause 19.03 - Design and Built Form

•

Clause 22.03 - Industry and Business and Character Policy

•

Clause 52.35 Urban Context Report for Residential Development of Four or More Storeys

•

Clause 65 - Decision Guidelines

11 At the review hearing, Ms Moser provided a detailed written submission and both Mr Umbers and Mr O'Brien provided evidence statements. Both witnesses were available for cross-examination. I was provided with plans and elevations of the proposed development; supporting documents including plans and elevations of a three storey development approved for the site; locality plans; an aerial photograph; photos of the subject site and locality and other VCAT decisions including:

•

K2K Pty Ltd v. Monash CC [2004] VCAT 2227

•

Peninsula Planning Consultants v. Boroondara City Council

•

KMA Constructions, J. Miller and R. Piggott (P381/2005)

•

Alexander Architects v. Whitehorse CC [1999] VCAT 1386

12 I advised that I had viewed the site and neighbourhood prior to the review hearing.

13 At the commencement of the hearing Mr Jones sought leave to substitute the plans in the application. There was no objection and the plans 0337 Issue C dated 26/09/05 by Domus Design were substituted and now form part of the application.

14 Ms Moser claimed the Council's main concern related to the height and scale of the proposed development and in particular the four storey component of the development. She argued that it was out of context with its area and offended the thrust of cl.19.03 of the planning scheme in that the development had no relationship to adjoining or nearby properties.

15 Ms Moser referred to the context aspect of cl.19.03 and claimed that the Huntingdale activity centre is a small neighbourhood centre catering for top-up shopping. She claimed it does not contain a full supermarket or regional community facilities but there is a small agency post-office and small top-up shopping supermarket, hairdressers and some shops selling food lines such as bakeries, butchers and fruit and vegetables and numerous sandwich shops catering for people working nearby in the industrial areas located either side of the centre.

16 Ms Moser claimed the role of the centre is recognised in cl.21.06 of the planning scheme where Huntingdale falls within the category of a local activity centre. These centres are recognised for providing for local convenience shopping with a cluster of small scale retail and service oriented activities.

17 Ms Moser claimed that under the general implementation section of cl.19.03 development should achieve architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties.

18 Ms Moser claimed that at four storeys in height, the building exceeds the single and double storey nature of the centre and although located back from Huntingdale Road the largest part of the building will still be seen and will sit apart from the built form due to their height.

19 Mr Umbers on the other hand referred to:

•

The site's location and proximity to existing public transport infrastructure and accessibility to the Monash University (Monash Clayton and Caulfield Campuses).

•

The site's ability to assist in urban consolidation of an activity centre

•

An innovative design response within the commercial precinct which softens the visual appearance of commercial buildings in an area that is not attractive in its appearance and is dominated by car parking on the south side of Railway Avenue and industrial premises to the west.

20 In determining this matter it is noteworthy that the council itself has previously approved a three storey development on the site and is was agreed the principle debate concerned whether the fourth level is appropriate or otherwise.

21 In determining this matter I consider it is important to appreciate that the fourth level is to be located at the rear of the site abutting the industrial zoned land whilst part of the third storey will be located above buildings which are mostly two stories in height in the south-eastern corner of the site. So whilst Ms Moser argued the top part of the building will be seen from Huntingdale Road that is not the test for consideration of the appropriateness. Rather the test is whether the built form is a suitable response having regard to the site's context and the planning policy framework.

22 I consider the proposed built form including its scale and height is a satisfactory design response for this built up business zone which abuts an extensive industrial area. Whilst it may be the largest building in this business zone it will not adversely impact on any abutting residential area or any commercial and industrial use. If anything it likely to provide a valuable stimulus for further mixed use development in close proximity to excellent public transport and an activity centre. The notion of having student accommodation on the southern periphery of an activity centre which is opposite a busy train line and bus service linking south eastern section of the metropolitan area and at least two campuses of Monash University is a positive planning outcome for this activity centre.

23 Whilst the proposed building could be said to be out of scale with surrounding one and two storey industrial buildings this is not necessarily a bad thing. If anything, the designer has provided a good standard of contemporary architecture which will clearly provide a positive urban design outcome into this degraded streetscape.

24 Whilst it is easy to claim the new built form is "out of character" with two relatively depressed streetscapes the new built form will be the superior in design and form to the existing built form. I see no reason to emulate a mediocre built form in the context of this activity centre.

25 The apartments, including the student accommodation have been designed to take advantage of views out of the site and whilst these are not magnificent views by any stretch of the imagination a reasonable attempt has been made to separate the residential and commercial uses and clearly demarcate their entrances.

26 Ms Moser raised concern about the adequacy of private and communal open space for the future tenants of the premises. Mr Umbers advised in evidence that the nature of the accommodation did not warrant standards commensurate with Rescode having regard to the nature of student accommodation and the likelihood that students will take advantage of recreational facilities offered at university campuses.

27 It is noted that in a four storey building there are no standards for open space in the planning scheme and the closest reference is the Standard B28 which requires a minimum 8 square metres with a minimum dimension of 1.6 metres. I note there is no schedule outlining open space requirements in the Business 1 zone.

28 In this instance, I am satisfied that most of the private open space facilities provided is appropriate although I have taken advantage of the suggestion by Ms Moser to enlarge the east facing balconies on dwellings D10, D11, D12 & D13 and where possible remove all high screens unless there is immediate overlooking between units so as to some outlook for these residents. I acknowledge that the outlook from the site is mostly over roofs of commercial and industrial buildings but in some instances the outlook should not necessarily be confined by high screens in front of balconies particularly where there is unlikely to any overlooking. Ironically, one of the best outlooks from the site is over the canopy trees in the VicRail commuter car park on the south-western side of Railway Avenue.

29 I consider that whilst most balconies will not meet the 8 square metre area nominated in Standard B28, most have at least 5 square metres with dimensions exceeding 1.6 metres and the balconies are conveniently placed next to living rooms. I consider that 5 square metres per dwelling (in a convenient location close to a living room) is reasonable having regard to the size of each dwelling. However I have required the east facing student accommodation on the first floor to be widened from 1.3 metres to1.6 metres because I consider 1.3 metres is tight in this development and 1.6 metres reflects the contemporary minimum width in Standard B28. The increase in width which was mooted by Mr Umbers will assist to increase overall area of these balconies, which is a further improvement.

30 I gave consideration to providing a common area on the roof of the building however, I have doubts that it would be used much by future occupants.

31 Ms Moser raised concern about the method of providing vehicle car parking in car stacker arrangements together with the adequacy of car parking overall. She claimed that at least one car space per dwelling, including student accommodation, should be provided and not less than two car parking spaces should be provided per retail occupancy.

32 One of the difficulties in determining the appropriate car parking ratio for the shops is that only one new shop occupancy is being provided and there was no evidence provided that the existing shops had a specific car parking requirement. In fact, the parties had difficulty even determining how old the buildings were and whether the planning scheme applied at the time they were developed. The only areas where there seemed to be some common agreement was that shop 317 Huntingdale Road will have two car parking spaces with direct alternative access off the rear laneway so that the green grocer occupancy in 317 Huntingdale Road can utilise both spaces with loading facilities behind. I agree, this matter can be addressed through condition on permit allowing flexibility for future owners and occupiers to determine the overall allocation of parking. This is important in this instance because parking demands may alter if occupants of retail premises change. On the other hand, I consider it is prudent to allocate one car parking space for each shop (two for No. 317 Huntingdale Road). I am satisfied there is likely to be more spaces available for traders but these will come from a common pool and the owners can allocate these on a yearly or monthly basis.

33 I agree with Mr O'Brien's evidence that only four or five students are likely to own cars. His evidence which was based on other Tribunal decisions and his own company research indicated a parking generation rate between 0.04 and 0.15 cars per student. So for 29 students 4 cars are likely to be generated using the conservative figure.

34 I have nominated that each apartment, excluding the student accommodation, is to have one car space each consistent with Mr O'Brien's evidence. Accordingly there will be some spare capacity.

35 I have also accepted the evidence of Mr O'Brien that it is appropriate to manage this carpark as a common facility rather than car spaces being specifically allocated in a planning permit and possibly separately subdivided in any future plan of subdivision. In this case, the matter can be and is probably better managed in a management plan which is subject to renewal on a regular basis as the owner or manager require.

36 I also have no major concern about the method of parking in tandem or stackers provided that each of the car spaces in the stackers can be independently accessed. To achieve this, it will be necessary to dig bays into the sub-basement to enable sufficient head room. Accordingly, I will insert a condition to this affect. However, I see no fundamental reason why a site of this nature cannot utilise car stackers.

37 Ms Moser also raised concern about potential access difficulties for car space numbers 19 and 20 due to their proximity to the entrance door. Mr O'Brien explained that the garage door to the carpark will be remote control access system and whilst it will need a separate egress from a vehicle to open a car stacker, this operation is unlikely to cause any major traffic delays in Railway Avenue. By comparison the carpark entrance to the VCAT building provides similar practical difficulties which Tribunal members like the future occupiers of these car spaces will be able to manage and deal with fairly conveniently.

38 During the hearing, Mr Jones referred to page 4 of 7 of cl.21.06 of the Council's retail policy. One of the strategies in the hierarchy of business activity centres in Monash is

•

to encourage the development of higher density housing projects within existing activity centres; and

•

consolidate the retail function of activity centres by encouraging mixed use development, enhancing streetscapes, improving access and car parking and creating attractive environments for the benefit of the local community.

39 I am satisfied that the strategy provisions are met by this proposed development. Whilst these are very general there is no policy in the Monash Planning scheme which deals with student accommodation in activity centres.

40 Mr Jones also referred indirectly to the lack of any student accommodation policy in the Monash Planning Scheme. By comparison, he referred to cl.22.09 of the Glen Eira Planning Scheme and in particular statistics that indicated in the year 2002 Monash University had 12,469 overseas students at Monash (both Caulfield and Clayton campuses) and by comparison Melbourne University had 7,800 students. He said it was not so silly for someone to seek to develop student housing in a strategic location close to one of the Monash campuses and certainly within good public transport accessibility of both.

41 Mr Jones suggested that Monash City Council may obtain benefit by preparing its own student housing policy and acknowledging student housing as a legitimate planning issue within its municipality.

42 It is not the role of the Tribunal to tell the responsible authority what its policies should be or how it should apply them. But it is interesting to note that there is no recognition of student accommodation as an alternative form of accommodation in any of the local planning policies that guide discretion in the Monash Planning Scheme. In this case the responsible authority placed a strong emphasis on the inappropriateness of this form of accommodation by utilizing conventional medium density residential standards, particularly open space and parking without proper analysis or acknowledgement that student housing has different accommodation characteristics. If the council truly does have concerns about the adequacy of open space or car parking needs then it may have found it beneficial if it had undertaken its own research and analysis within its municipal borders.

43 There was detailed debate about the need for and extent of a management plan to control various aspect of the student accommodation. I have not accepted the Council s suggested management condition as I consider it is excessive and unreasonable. I consider it is reasonable for a service provider agreement, basic house rules for the student accommodation, car parking bicycle and rubbish collection issues can and should be controlled through a management plan. However I consider the Council has overstepped the mark in attempting to control the conduct and behaviour of people in a residential building. Students, like other members of the community are responsible for themselves. There was no evidence provided to the Tribunal that student accommodation caused any adverse amenity issues, particularly in this locality. In the context of the Business 1 zoning, the site context and the lack of any policy or research about student accommodation it is difficult to see why such rigid requirements were suggested.

44 For the above mentioned reasons the responsible authority's decision is set aside. A permit shall issue for the use and development, with minor change to some balconies, further detail about the car parking area so that double level stackers can be accommodated and a condition requiring the student accommodation to be controlled through a simplified management plan. I consider the development will provide a positive outcome in the activity and is appropriate.