[2005] VCAT 2196

The order of the Tribunal is that the decision of the Responsible Authority is set aside.

A permit is granted for the construction of dwellings, the use of the land for the purpose of a convenience shop and buildings and works associated with the convenience shop, buildings and works under the Design and Development Overlay and a reduction in the provision of car parking at 178 Victoria Avenue, Albert Park generally in accordance with the endorsed plans and subject to the following conditions:-

1 Before the use and/or development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:

(a)

Compliance with Standard B19 of Clause 55 in relation to the habitable room windows of the building at 176 Victoria Avenue, facing the review site.

(b)

The open space to apartment 3 and 10 to have a minimum width of 1.6 m.

(c)

Urban Art to be included in accordance with Council's Urban Art Strategy and to the satisfaction of council's Urban Art Officer. For on site installations the location of the Urban Art to be as indicated on the drawings.

(d)

Direct street address to apartments 1 and 2.

(e)

All plant and equipment (including air conditioning, heating units, hotwater systems, etc..) which is to be located externally must be identified on plans.

(f)

A schedule and plan notations for the inclusion of environmental features for the building and the dwellings including, but not limited to:

- Rainwater recycling for garden sprinkler system;

- Water efficient shower heads and wash basin outlets;

- Energy efficient low voltage and fluorescent light fittings and motion detectors for public area lighting to car parks, fire stairs, outdoor areas etc.;

(g)

The location of mailbox facilities so they are externally accessible;

(h)

All plan and elevation drawings to be fully dimensioned, including natural ground level, floor levels, and incremental and total wall and building heights and lengths, with heights to be expressed to Australian Height Datum (AHD),

All of the details required above are to be to the satisfaction of the Responsible Authority

2 Before the development starts, a full schedule of materials, finishes and paint colours, including colour samples (colour samples in a form that is able to be endorsed and held on file), must be submitted to and approved by the Responsible Authority When approved, the plans will be endorsed and will then form part of the permit.

3 Prior to the commencement of the development hereby permitted, a landscape plan and schedule/must be submitted to and approved by the responsible authority. The plan must be generally in accordance with the plan Landscape Concept Plan tabled at the hearing of the Victorian Civil and Administrative Tribunal on 8 August, 2005 (prepared by ERM, Project No. 0019390, Drawing No. LS1, dated July 2005). When approved the plan will be endorsed and will then form part of the permit. Landscaping in accordance with such approved plan and schedule must be completed before the commencement of the occupation of the building hereby permitted.

4 Before the construction or carrying out of buildings and works in association with a sensitive use commences, either:

•

A certificate of environmental audit must be issued for the land in accordance with Section 57AA of the Environmental Protection Act 1970, or

•

An environmental auditor appointed under the Environmental Protection Act 1970 must make a statement in accordance with Section 57AA(5)(b) of that Act that the environmental conditions of the land are suitable for the sensitive use..

5 The development and use as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

6 Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.

7 The walls on or facing the boundary of adjoining properties must be cleaned and finished in a manner to the satisfaction of the Responsible Authority.

8 All piping and ducting (excluding down pipes, guttering and rainwater heads) must be concealed to the satisfaction of the Responsible Authority.

9 No equipment, services and architectural features other than those shown on the endorsed plan must be permitted above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority..

10 All lighting of external areas must be suitably baffled so as not to cause nuisance or annoyance to nearby residential properties.

11 Before the use or occupation of the development starts, the area(s) set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:

(a)

Constructed;

(b)

Properly formed to such levels that may be used in accordance with the plans;

(c)

Surfaced with an all weather surface or seal coat (as appropriate);

(d)

Drained and maintained; and

(e)

Line marked to indicate each car space, loading bay and/or access lane.

(f)

Clearly marked to show the direction of traffic along access land and driveways

All to the satisfaction of the Responsible Authority.

12 Parking and access lanes must be kept available for those purposes at all times and must not be used for any other purpose such as storage!

13 Vehicular crossings must be constructed in accordance with the endorsed plans to the satisfaction of the responsible authority, before the use is commenced or building occupied:

a) Standard vehicular crossings must be constructed and/or widened to the satisfaction of the responsible authority.

b) Any redundant crossing (or part thereof) must be removed and the footpath and kerb reconstructed incorporating bluestone pitchers or suitably shaped and coloured concrete kerb and channel to match existing kerb and guttering (as appropriate) to specifications to the satisfaction of the Responsible Authority and at no cost to the Responsible Authority!. Any new car space(s) created along the street frontage of the site as a result of the removal of the crossing must be line marked to the satisfaction of the responsible authority. Any surplus bluestone pitchers must be returned to Councils depot, at cost to the applicant or owner.

Applicant to pay for reinstatement

14 The Applicant/Owner must do the following things to the satisfaction of the Responsible Authority:

a)

Pay the costs of all alterations/reinstatement of Council and Public Authority assets necessary and required by such Authorities for the development.

b)

Obtain the prior written approval of the Council or other relevant Authority for such alterations/reinstatement..

c)

Comply with conditions (if any) required by the Council or other relevant Authorities in respect of alterations/reinstatement.

Laneways to be kept clear

15 During the construction of the buildings and works allowed by this permit, the laneway(s) adjacent to the subject land must be kept free of parked or standing vehicles or any other obstruction, including building materials, equipment etc. so as to maintain free vehicular passage to abutting benefiting properties at all times, unless with the written consent of the Responsible Authority..

Garden area to be retained

16 The garden areas shown on the endorsed plan and schedule must only be used as gardens and must be maintained in a proper, tidy and healthy condition to the satisfaction of the responsible authority. Should any tree or shrub be removed or destroyed it may be required to be replaced by a tree or shrub of similar size and variety.

No damage to existing street tree

17 The proposed works must not cause any damage to the existing street tree. Root pruning of this tree must be carried out to the satisfaction of the Responsible Authority prior to the construction of the crossover.

Convenience shop

18 Provision must be made for the storage and disposal of garbage to the satisfaction of the Responsible Authority. All garbage storage areas must be screened from public view.

19 The amenity of the area must not be detrimentally affected by the development through the:

a)

Transport of materials, goods or commodities to or from the land

b)

Appearance of any building, works or materials

c)

Emissions of noise, artificial light, vibration, smell, fumes, smoke, steam, soot, ash, dust, waste water, waste products, grit or oil;

d)

Presence of vermin;

e)

Change to television and/or radio reception

f)

In any other way

20 The convenience shop may operate only between the hours of:

7.00am and 11.00pm Monday to Saturday

8.00am and 10.00pm Sunday

21 A Rubbish Collection Management Plan must be prepared by the permit holder and approved by the responsible authority. Rubbish collection must take place in accordance with the approved management plan.

22 All air conditioning and refrigeration plant must be screened and baffled and/or insulated to minimize noise and vibration to other residences to ensure compliance with noise limits determined in accordance with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No., N-I

23 No goods are permitted to be stored or left exposed outside the building so as to be visible from any public area.

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

a)

The development is not started within two years of the date of this permit.

b)

The development is not completed within two years of the date of commencement of works.

c)

The use is not commenced within 2 years.

25 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,

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mr C Canavan QC and Ms S Brennan of Counsel, instructed by Deacons

Mr R Symons, traffic engineer of Ratio Consultants Pty Ltd

Mr O Emmanouilides, architect of O1A Architects Pty Ltd

G Brent, G Mill, P Casey, M Colman, R O'Loan, A Tipping, J Roberts, J Roget, appeared on their own behalf

Mr R Easton, town planner, appeared on behalf of R Vallance, D & H Burrage, R Wilcock, K Homma & A Salalidis, and N Papadopolous

Mr W Kusznirczuk, town planner of Clement Stone Town Planners, appeared on behalf of Victoria Court Pty Ltd, Body Corporate Strata Plan 402 and Body Corporate Strata Plan 403.

1 This is an application to review the failure of the Responsible Authority to grant a permit within the prescribed time in respect of a permit application for the construction of a five storey building with two levels of car parking to be used for the purpose of 26 dwellings and convenience shop at 178 Victoria Parade, Albert Park. The Responsible Authority ultimately decided that had it not been for the application for review it would have refused permission for the following reasons:

1. The proposed development would be contrary to the objectives of Port Phillip Local Planning Policy for Residential Neighbourhood Character and Urban Design Policies.

2. The proposed development would be contrary to the City of Port Phillip Local Planning Policy for Residential Neighbourhood Character.

3. The proposed development would be contrary to the City of Port Phillip Local Planning Policy for Urban Design.

4. The proposal would have an unreasonable impact on the adjoining dwelling at 176 Victoria Avenue by way of visual bulk and loss of light.

5. The proposal does not provide adequate car parking for the proposed uses, and would unreasonably increase parking demand in the vicinity of the site.

2 At the commencement of the hearing Mr Canavan applied to amend the permit application by the substitution of amending plans as foreshadowed by notice given in accordance with the Tribunal's practice requirements. No person opposed the amendment of the permit application in this way, and the Tribunal ordered the amendment of the permit application in accordance with Mr Canavan's request.

3 It is proposed to construct a part three and part five storey building comprising 26 dwellings and a convenience shop above two basement levels providing 32 car parking spaces. The dwellings range in size from one to three bedrooms. Communal facilities for residents are provided at ground floor level and include a meeting room, covered swimming pool and spa, gymnasium and media room.

4 Vehicular access to the basement levels is obtained from the lane to the rear of the site (Beaconsfield Lane).

5 The proposed building is of a contemporary design. Mr Scally, who appeared for the Council, provided the following useful description of the building:

The building is a modern design with mainly glazing finish. The glazing would have a range of colours and art designs. Glass shutters (similar to garage folding door) would be built in to each of the front balcony areas along Beaconsfield Parade from ground floor to level four.

The Beaconsfield Parade elevation has a curved appearance with a series of vertical walls running from ground to fourth floor (with the fourth floor setback).

The corner element proposed would continue the curved theme both up and around the corner and would have punched windows to balcony areas.

The corner element would have an upper level architectural sculpture dome.

The Victoria Avenue elevation is different from the Beaconsfield Parade elevation, with tinted red glazing, closed balconies, although with louvres to the balcony spaces at the upper levels.

The building would have areas of landscaping on the balconies and in various architectural features along the street frontages and to the rear. It is plain from the statement of evidence of Mr Omiros Emmanoulides that the hanging garden system is a critical component of the design in all elevations.

A verandah is proposed along part of the Beaconsfield Parade elevation.

6 The building has a maximum overall height of 15 metres.

7 The description of the building provided above presents an accurate presentation of the basic elements of the building, but it does not convey in any meaningful way the style, flair or architectural quality of the building. In describing this proposal we think it is important to accurately convey what is proposed for a site which is very prominent in a metropolitan context. The building is bold and contemporary and uses a variety of architectural techniques, materials and colours to create a building which, in the words of Mr Emmanoulides, the project architect, seeks to become a "...focal point worthy of its landmark location" and which, "....while attempting to fit in with its context, does not conform to the status quo".

8 The review site is located on the northern corner of Beaconsfield Parade and Victoria Street, Albert Park. The site is vacant, having previously been used as a service station, and is "L" shaped with a frontage of 41.5 m to Beaconsfield Parade and 22 m to Victoria Avenue, with a small section extending to the north abutting Beaconsfield Lane for a distance of 12 m. The site has an area of 1170 m2.

9 Beaconsfield Parade is a major bayside boulevard running north south along the Port Phillip Bay foreshore and comprises a four lane divided carriageway with parallel parking on both sides. Victoria Avenue is a local street with central tram tracks and a centre of the road tram stop adjacent to the site.

10 There are a variety of land uses in the vicinity of the site including a hotel on the south corner of the intersection, a strip shopping centre to the east along Victoria Avenue, and residential uses in both Beaconsfield Parade and Victoria Avenue.

11 Immediately abutting the site in Victoria Avenue is a double storey, red brick building (176 Victoria Street) which is occupied by a number of apartments. A right of way (Beaconsfield Lane) runs along the northern boundary of this building. A section of the review site wraps around the rear of 176 Victoria Avenue and intersects with Beaconsfield Lane. The lane separates the review site from a number of dwellings which a have frontage to the residential street further to the north (Reed Street).

12 Abutting the review site to the north west (82 - 84 Beaconsfield Parade) is a three storey building, probably dating from the 1970's, comprising 24 apartments. A car park is located to the rear of this building which is accessed from Beaconsfield Lane.

13 The review site is zoned Residential 1 under the Port Phillip Planning Scheme. The purpose of the zone is;

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

To encourage residential development that respects the neighbourhood character.

In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs.

14 A permit is required to construct two or more dwellings on a lot pursuant to clause 32.01-4. A development must meet the requirements of Clause 55 unless the building is of four or more storeys. Clause 55 does not therefore apply to the consideration of this application.

15 The site is also affected by a Design and Development Overlay (DDO5-2) and a permit is required under the overlay to construct a building and to construct or carry out works. The design objectives of the overlay emphasise the need for new development to protect and enhance the environment of the South Melbourne foreshore and the low rise, heritage scale of the area, to preserve sunlight access to the foreshore, to ensure the setback of new development is consistent with that of an adjoining heritage place, to encourage high quality development respecting the traditional urban form and fabric of the area, and to protect the amenity and character of adjoining residential properties, streets and lanes.

16 The table to the overlay schedule specifies a preferred maximum height for new development of 9 m plus a roof with an absolute maximum height of 15 m. The outcome for building height specified in the table is as follows:

The height of new development is consistent with the predominant scale created by heritage places in the area.

The roof form of new development contributes to the visually interesting roofscape, that predominantly comprises pitched roofs, which is an important part of the character of this area.

The setting of, and views to the Victoria Hotel, an important landmark in this area, is maintained.

17 Buildings which do not exceed the preferred maximum height are considered to meet the design objectives of the overlay with respect to building height. Applications to exceed the preferred maximum height up to the absolute maximum height must demonstrate that developments continue to meet all relevant design objectives and the outcomes specified in the table to the schedule.

18 Car parking is required to be provided at a rate of 2 spaces per dwelling under Clause 52.06 of the planning scheme. A permit is required to reduce the parking requirement and the decision guidelines at Clause 52.06-1 must be considered before a parking requirement is reduced or waived. No parking requirement is specified for a convenience shop of 80 m2. An adequate number of parking spaces are therefore required to be provided to the satisfaction of the responsible authority.

19 With respect to the State Planning Policy Framework (SPPF) Clauses 14 and 16 are relevant. These clauses encourage the consolidation of urban development within existing urban areas and the encouragement of higher residential densities in locations with access to physical and community infrastructure. Medium density developments within established areas are also required to be respectful of the character of those areas. The provision of a diversity of housing styles is also encouraged through the development of well designed medium density housing which is intended to improve housing choice, make better use of existing infrastructure and improve energy efficiency of housing.

20 The principles of the SPPF have been reinforced by the Metropolitan Policy Melbourne 2030 - Planning for Sustainable Growth which emphasises the need for a more compact city to accommodate forecast housing needs while optimising existing infrastructure and protecting metropolitan green wedges. A new Clause 12 was introduced into the SPPF on 22 September, 2005 via AM. VC34. This Clause sets out the objectives and strategies for Metropolitan Melbourne contained in Melbourne 2030.

21 The objective of Clause 19.03 is to achieve high quality architecture that reflects the particular characteristics, aspirations and cultural identity of the community, enhances livability, diversity, amenity and safety of the public realm, and promotes attractiveness of towns and cities within broader strategic contexts. In assessing applications for developments not covered by Clause 55, consideration is required to be given to a series of design principles grouped under the headings Context, the Public realm, Safety, Landmarks, Views and vistas, Pedestrian spaces, Heritage, Consolidation of sites and empty sites, Light and shade, Energy and resource efficiency, Architectural quality, and Landscape architecture.

22 Planning and responsible authorities should have regard to the document Design Guidelines for Higher Density Residential Development (Department of Sustainability and Environment 2004) in assessing the design and built form of residential development of four or more storeys.

23 The Local Planning Policy Framework seeks to ensure that new development in established areas only takes place where it can be achieved without adversely affecting the amenity and character of the neighbourhood. The retention of the low rise scale of established residential areas is also encouraged and new developments are encouraged to respond to the characteristics of existing buildings adjacent to and in the vicinity of the site.

24 These municipal wide policies are reinforced by specific neighbourhood policies and by Council's urban design policies. With respect to the Albert Park neighbourhood, it is policy for all new development to "...respect and enhance the low scale of development that is predominantly one and two storeys in most streets with the exception of some taller buildings along the foreshore and in the vicinity of Albert Road".

25 Urban design policies encourage "....a gradual stepping up of built form of existing low rise development and proposed high rise development".

26 The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal.

27 The Tribunal inspected the review site and its locality during the course of the hearing and subsequently.

28 Notwithstanding the fact that the Council had refused the application, it was the Council's submission that, subject to a number of modifications intended to improve the proposal's transition to the lower scale neighbourhood beyond Beaconsfield Lane and to the three storey flats abutting to the north west (82 - 84 Beaconsfield Parade), the Council is supportive of the principle that this prominent site warrants a building expressing a bold architectural statement. Indeed one of the changes sought by the Council involves the creation of greater building mass at the corner of the site.

29 It was Mr Scally's submission that the local policy framework places considerable emphasis on the desirability of new developments achieving an appropriate transition in height and built form to the generally one and two storey scale of the Albert Park neighbourhood and that in its present form, the proposal does not achieve an acceptable outcome with respect to that policy framework. The changes to the building sought by the Council were summarised by Mr Scally as follows;

i

A transition in height of one storey to the adjoining three storey flats could be achieved in the Beaconsfield Parade elevation by deleting unit 22 at level three and by redesigning unit 25 on the fourth floor so that it was setback 13 m from the north west boundary.

ii

Unit 23 on the fourth floor could be enlarged into its balcony area and extended upward as a mezzanine space to create a tower like feature at the corner, similar to that of the Victoria Hotel at Kerferd Road.

iii

To the rear of the site, unit 16 on the second floor ought to be deleted to create a more respectful transition in height from the lower scale character of the neighbourhood to the north, and to reduce the amenity impacts of the proposal's interface with the rear yards of the dwellings which back onto Beaconsfield Lane.

iv

The deletion of fins on the upper two levels in the Beaconsfield Parade elevation would reinforce the three storey wall height and better emphasise the recessive and light weight nature of the fourth floor.

30 The Council was also concerned about the proposal's failure to comply with Standard B17 of Clause 55 (Side and Rear Setbacks) and B19 (Daylight to existing windows). Although it was acknowledged that Clause 55 does not apply to this application, it was Mr Scally's submission that the objectives and standards of this Clause do provide a useful reference point against which the proposal's impact on the amenity of adjoining properties can be assessed. It was his submission that compliance with B17 and B19 would lead to a design which would be more respectful of the residential amenity of 176 Victoria Ave.

31 Mr Scally also submitted that the amended plans which had been circulated by the applicant prior to the hearing had largely resolved car parking issues to the Council's satisfaction, except that it considered that five visitor parking spaces ought to be provided on site and that parking also ought to be provided for the operators of the convenience shop. Mr Scally acknowledged that this is a matter which could be dealt with by way of permit conditions and that a car stacker could be incorporated into the design to accommodate additional parking. Alternatively, additional parking would not be required in the event that units 16 and 22 are deleted.

32 Several of the objectors broadly supported the Council's position that the proposal fails to appropriately respond to its neighbourhood context and that, in general terms, the building is too high. Some objectors were supportive of the changes to the design recommended by the Council, while others submitted that the removal of an entire level or a reduction in height consistent with the preferred maximum height in the DDO5-2 would represent a more appropriate response to the low rise character of Albert Park.

33 Concerns were also expressed about the proposed provision of car parking and criticisms were levelled at the empirical evidence supplied on behalf of the applicant and upon which the proposed reduction in parking was sought to be justified.

34 Specific concerns were raised by those objectors who have a direct abuttal with the review site. Mr Easton, who appeared for those objectors who reside to the rear of the site, submitted that the visual impact of the proposed building on the rear open space of his client's properties is unacceptable. In additional it was submitted that the use of Beaconsfield Lane for vehicular access to the proposed basement car park would lead to adverse amenity impacts on existing residents who abut the lane, and to congestion and access difficulties in the lane.

35 Mr Kusznirczuk who represented the owners of 176 Victoria Ave, and the residents of that building who also appeared, submitted that the interface with the building at 176 Victoria Ave has been poorly resolved and that the proposed building will have adverse amenity impacts on the residents of that building as a consequence of excessive visual bulk, overshadowing and loss of daylight. Mr Kusznirczuk submitted that proposed unit 16 which abuts Beaconsfield Lane and has an interface with the rear of 176 Victoria Ave, ought to be deleted. It was further submitted that it is reasonable to apply Standard B17 and that as a consequence units 10 and 17 which directly abut habitable room windows in 176 Victoria Ave would need to be deleted to achieve an acceptable outcome. Mr Kusznirczuk submitted that the necessity for these changes highlight that the proposal represents an attempt to overdevelop the site and that the preferable solution is to remove the third level of the building and to reconfigure it as a whole, rather than "tinker" with the existing design.

36 Ms Tipping who resides in one of the flats at 84 Beaconsfield Parade raised concerns about the proposal's interface with that building, and in particular submitted that an inadequate setback had been provided which would lead to visual bulk, overlooking and overshadowing impacts.

37 The submissions made by the Council and the objectors can be grouped into two main categories which we will deal with separately.

38 The first category we will call policy level considerations and to a large extent issues which fall under this category necessitate an assessment of whether the proposal successfully responds to, or whether it ought to be required to respond to, the one and two storey scale of the Albert Park neighbourhood.

39 The second category of considerations are those which relate to the detailed aspects of the design and in particular its treatment of the site's immediate interfaces.

40 We will deal with the policy level considerations first.

41 As we have detailed above, there is considerable support in the local policy framework for the proposition that a development of this site ought to incorporate a transition in height from the lower scale development of the Albert Park neighbourhood. There was really no dispute between the parties with respect to the policy encouragement given to the desirability of achieving a transition in height, however it was Mr Canavan's submission that what is currently proposed achieves an appropriate transition and is entirely consistent with the outcomes sought by the planning scheme. In his submission, the changes recommended by the Council amount to little more than requiring changes for the sake of requiring changes and are not warranted in terms of achieving an appropriate built form outcome for the site.

42 We are inclined to agree with this submission and we have not been persuaded that the reduction in the overall height of the building or the stepping of height at the edges sought by the Council and several objectors, leads to a superior design response to that currently proposed.

43 In arriving at our conclusions on this matter, we have been influenced by a number of considerations. Importantly, we think that the design is a carefully constructed architectural response to its site context. The term "design excellence" was used extensively by various parties throughout the hearing either as a description of the proposed building or as a reference to something which ought to be strived for on this site. It is a term which appears regularly in the planning scheme. The notion of design excellence is a difficult concept to grapple with, often because any consideration of the design of a building can tend to be influenced by individual taste or preference. From our perspective however, the consideration of design excellence must be focussed entirely on those matters encompassed within the planning scheme, and in particular Clause 19.03 which, in general terms, seeks to "....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......", and which "....take into account the natural, cultural and strategic context of its location". Issues of individual taste or preference for architectural styles are irrelevant.

44 The strategic context relevant to the consideration of the design excellence of this proposal have been outlined in some detail previously, but the strong policy support for the provision of additional housing on strategic sites within close proximity of public transport, public open space, employment opportunities, retail, entertainment and community facilities, is often overlooked when consideration is being given to the minutiae of a building's design. In our opinion this policy support weighs heavily in favour of a higher building form on this site.

45 This site is clearly a site upon which a development ought to be encouraged to make a contribution toward the achievement of urban consolidation objectives.

46 The DDO5-2 applying to the site and to this section of Beaconsfield Parade, in many respects represents the bringing together of all the overlapping and contrasting policy provisions contained in the planning scheme and provides the guidance as to what constitutes an appropriate built form for this locality. It provides specific recognition that a higher built form than the one and two storey character of Albert Park is contemplated in this locality. A building at 9 m (the preferred maximum height) is deemed to meet the design objectives of the DDO for height. For reasons we elaborate on below, we are satisfied that this building at a height of 15 m, continues to meet the design objectives.

47 The proposal does in our view incorporate an appropriate transition in height from the building at 176 Victoria Ave. The proposed wall height corresponds with that of the wall height of no.176 and the upper level is stepped away from its neighbour. The architectural treatment of that part of the proposed building abutting no. 176 also contributes to the appropriateness of the response to that building.

48 With respect to the transition in height from the three storey flats at 82 - 84 Beaconsfield Parade, we do not think that the form, scale or height of the proposal ought to be in any significant way influenced by its neighbour to the north, a building which from a streetscape perspective, has no architectural merit. There is in any event a transition in height between the proposal and this neighbour and we think that what is proposed is appropriate.

49 There is also an appropriate transition in height to the rear to the lower scale of development beyond Beaconsfield Lane. The maximum height of the proposed building is setback approximately 19 m from Beaconsfield Lane and is separated from the lane by 176 Victoria Ave. The review site in fact has only a narrow12 m direct interface with the lane and at that interface, the proposal has a height of approximately 9 m or three levels. Having regard to the site's strategic context and the provisions of the DDO5-2, this transition in height is in our view appropriate.

50 It is also relevant that the requirement of the DDO 5-2 that the proposal does not cast an additional shadow beyond the kerb line on the south western side of Beaconsfield Parade between 10 am and 4 pm at the winter solstice, is achieved by the proposal.

51 We turn now to a consideration of the detailed aspects of the design and its treatment of it's immediate interfaces.

52 Our principal concern is with the proposal's interface with no. 176 Victoria Ave. As we have outlined previously we received submission to the effect that Standards B17 and B19 of Clause 55 ought to be applied in assessing the impact of the proposal on the amenity of residents of the neighbouring properties. While we accept that Clause 55 maybe a useful tool in assessing aspects of proposals of this type, the temptation to apply those standards in the absence of other quantifiable standards ought to be avoided. We have outlined previously why we are satisfied with the relationship between the proposal and no.176 Victoria Ave in terms of the transition in height between the two buildings, and we do not think that requiring a height related setback such as that encompassed within Standard B17 would make any appreciable difference toward the achievement of the objective which underpins that standard[1].

53 Having regard to the nature of the interface between the two buildings, the critical amenity issue relates to the existence of the habitable room windows toward the rear of no.176 Victoria Ave, and the daylight impact of the proposed building on those windows. In our view, Standard B19 of Clause 55.04-3[2] is appropriate to apply in the circumstances of this site. We are satisfied that compliance with Standard B19 (which will in effect require the provision of a light court adjacent to those windows) will limit amenity impacts on the residents of the abutting property to a level which is acceptable in this site context. The changes to the proposal required by compliance with B19 can be accommodated without substantial modifications to the proposal.

54 Mr Kusznirczuk also submitted that proposed unit 16 which abuts Beaconsfield Lane and has an interface with the rear of 176 Victoria Ave, ought to be deleted. We understood Mr Kusznirczuk's submission on this point to be based on a concern about the visual bulk impact of the proposal on the rear of no. 176 Victoria Ave. We observe however that this unit is setback from the common boundary and the terrace is screened to prevent overlooking. There are also a number of outbuildings located on 176 Victoria Ave which create a degree of separation between the rear of that site and the review site. In these circumstances we do not agree with Mr Kusznirczuk's submission.

55 For the reasons we have outlined previously we are satisfied that the interface with Beaconsfield Lane and the rear of the properties on the opposite side of the lane, is also satisfactory. The height of the building at the lane is approximately 9 m which is the preferred maximum height under the DDO5-2 and the transition to the maximum height occurs over a distance of some 19 m. We reiterate that the review site has a narrow, 12 m interface with the lane and we do not regard the 9 m height of the proposal at the lane, over that 12 m distance to be excessive in terms of any amenity impacts on the rear of the dwellings to the north of the lane. Overlooking can be controlled by the use of appropriate screening.

56 The proposal's interface treatment with the three storey flats at 82-84 Beaconsfield Parade is also satisfactory. We note that the units in that development are oriented to the north west with balconies and windows to living rooms located on the opposite side of the building from the review site. We acknowledge that the kitchen and bedroom windows which face the review site contribute to the amenity of those units but the impact of the proposed building on those windows is not so great as to warrant a redesign of the interface between the two sites.

57 We accept Mr Symon's evidence with respect to the provision of car parking. Based on either the application of Clause 55 standards or the rates derived from the empirical studies referred to, sufficient parking is provided for the residential component of the development and sufficient justification exists to reduce the parking requirement from that specified in Clause 52.06. We also agree with Mr Symons evidence that the 32 spaces proposed will be sufficient to provide for the operator of the convenience shop and regular visitors to the apartments. Irregular or casual visitors to the apartments and convenience shop customers will use on street parking available in Beaconsfield Parade.

58 With respect to the availability of on street parking, we agree with Mr Symons that some recognition needs to be given to the creation of additional spaces through the closure of the existing crossovers. Mr Symons also acknowledge that demand for on street parking has become more intense in recent times since the refurbishment of the Beach Hotel opposite the site, but that this increased demand is concentrated on Saturday and Friday evenings, and at other times of the week, sufficient capacity exists.

59 Having regard to the above we do not consider it necessary to require the additional 5 parking spaces to be provided on site as recommended by the Council.

60 Mr Easton submitted that access to the car park ought to be provided from Beaconsfield Parade rather than from the rear lane. This submission was made on the basis that the use of the lane would contribute to increase volumes, noise and disturbance in the lane to the detriment of the amenity of existing abutting residents, and would impose safety and functional difficulties in the lane.

61 We do not agree with this submission. The use of the lane for access is to be preferred to that of Beaconsfield Parade which, if implemented, would involve the loss of on street parking capacity. The configuration of the lane is sufficient to accommodate increased volumes and movements associated with the proposed development without compromising the safety and functioning of it.

62 Finally, we are satisfied that the proposal will provide an adequate level of internal amenity

63 It follows from the above reasons that it is our conclusion that the decision of the responsible authority should be set aside and a permit issued.

64 In deciding the conditions to be included on the permit we have had regard to the "without prejudice" conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from our reasons.

[1] The objective is of Clause 55.04-1is: To ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings

[2] The Standard requires the following treatment: Buildings opposite an existing habitable room window should provide for a light court to the existing window that has a minimum area of 3 square metres and minimum dimension of 1 metre clear to the sky. The calculation of the area may include land on the abutting lot. Walls or carports more than 3 metres in height opposite an existing habitable room window

should be set back from the window at least 50 per cent of the height of the new wall if the wall is within a 55 degree arc from the centre of the existing window. The arc may be swung to within 35 degrees of the plane of the wall containing the existing window. Where the existing window is above ground floor level, the wall height is measured from the floor level of the room containing the window.