(a) 13 car spaces allocated to the residential units and a further four car spaces allocated to the showroom use.

(b) All car spaces are to be appropriately marked and allocated to the appropriate dwelling, visitor space and commercial use.

(c) A minimum headroom clearance of 2.2m in the basement car park area, conforming to the relevant clause of AS 2890.1.

(d) Car spaces adjacent to walls to be widened to a minimum width of 2.9m and columns moved so as to allow sufficient door opening space.

(e) All balconies to have a minimum area of 8 sq m (set back within property boundaries).

(f) An opening in the eastern ground floor wall of the building that is close to the entrance ramp which provides drivers exiting the basement car park, clear view lines to see pedestrians approaching the site from the east.

(g) The provision of screening devices that restrict overlooking to neighbouring properties and that incorporate fixed horizontal louvered screens to a minimum height of 1.7m above finished floor level along the exterior of the north facing terraces.

(h) The provision of waste storage and collection areas.

(i) Fixed sun-shading devices erected above all of the north elevation windows and the third floor east and west elevation windows.

(j) 6 cubic metres of storage space for each dwelling.

(k) The provision of four (4) advanced canopy trees (at a minimum 1.5 m in height) planted at intervals in the easement north of the proposed building.

(l) A door provided to the rear northern ground floor wall of the building to allow maintenance access to the easement.

(m) The incorporation of acoustic protection measures to all apartments within the building.

(n) The modifications in accordance with the requirements of VicRoads.

(o) The provision of mailboxes located at street level.

(p) Details of the method of ventilation to the basement car park.

(q) A schedule of external materials, colours and finishes. Details of treatment of east and west elevations.

Once approved these plans become the endorsed plans of this permit.

2 The layout of the site and the size, design and location of the buildings and works permitted must always accord with the endorsed plan and must not be altered or modified without the further written consent of the Responsible Authority.

4 Prior to the commencement of the development a qualified acoustics expert must prepare an acoustics report and a copy must be provided to the Responsible Authority that details the noise attenuation measures required to all habitable rooms within the dwellings to ensure minimal impacts from external noise sources. The recommendations of the acoustic report must be implemented prior to the completion of the development to the satisfaction of the Responsible Authority.

5 Design and construction of the building must be in accordance with AS 2017:2000 Acoustics - Recommended Design Sound Levels and Reverberation Times for Building Interiors and must be to the satisfaction of the Responsible Authority.

6 The maximum height of the building, including lift overruns, plant etc, must not exceed 15m above ground level.

7 A timber paling fence with a minimum height of 2m must be erected along the northern boundary. The cost of the fence must be met by the applicant/owner and constructed to the satisfaction of the Responsible Authority.

8 Once the use is commenced it shall only be used for the above purpose, to the satisfaction of the Responsible Authority.

9 The discharge of water from the property shall be controlled around its limits to prevent discharge onto any adjacent property or streets other than by means of an underground pipe drain discharge to an approved outlet in a street to an underground pipe drain.

10 Floor levels shown on the endorsed plan(s) must not be altered or modified without written consent of the Responsible Authority.

11 Provision must be made for the drainage of the site including landscaped and pavement areas all to the satisfaction of the Responsible Authority.

12 Before buildings and works and construction are carried out on the site, a report must be provided by a suitably qualified person which demonstrates to the satisfaction of the Responsible Authority that the soil conditions of the site are suitable for residential development.

13 The 17 basement car parking spaces shown on the endorsed plans must be provided prior to the commencement of the use hereby permitted.

14 The car parking areas and accessways as shown on the endorsed plans shall be formed to such levels so that they may be used in accordance with the plan, and shall be properly constructed, surfaced, drained and line-marked (where applicable). The car park area and driveways shall be maintained to the satisfaction of the Responsible Authority.

15 Parking areas, and access lanes must be kept available for these purposes at all times.

16 A minimum of one (1) car space is to be provided for the exclusive use of disabled people and is to be located as close as practicable to the front entrance to the building. It shall be marked clearly with a sign to indicate its intended use and the minimum width of such a car space is to be 3m x 4.9m. These requirements are not to be altered or modified without the written consent of the Responsible Authority.

17 The loading and unloading of goods from vehicles must not be conducted before 8 am or after 6 pm daily.

18 A directional sign to the satisfaction of the Responsible Authority shall be provided directing drivers to the area set aside for car parking and must be located and maintained to the satisfaction of the Responsible Authority. The sign must not exceed 0.3 sq m.

19 The area set aside for the parking of vehicles, together with the associated access lanes as delineated on the endorsed plan shall:

(a) Be provided and completed to the satisfaction of the Responsible Authority prior to the commencement of the use hereby permitted.

(b) Thereafter be maintained to the satisfaction of the Responsible Authority.

(c) Be made available for such use at all times and not used for any other purpose.

(d) Be properly formed to such levels that it can be used in accordance with the endorsed plan.

(e) Be drained and sealed with an all weather seal coat to the satisfaction of the Responsible Authority.

(f) Have the boundaries of all vehicle spaces clearly indicated on the ground in conformity with the endorsed plan.

20 Standard concrete vehicular crossing(s) must be constructed to suit the proposed driveway(s) in accordance with the Responsible Authority's standard specification and any vehicle crossing(s) no longer required must be removed and the land, footpath and kerb and channel replaced all to the satisfaction of the Responsible Authority.

21 Provision shall 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.

22 Noise emitted from the premises must not exceed the permissible noise levels determined in accordance with the State Environment Protection policy (Control of Noise from Commerce, Industry and Trade) No. N-1.

23 The amenity of the area shall not be detrimentally affected by the use or development through:

(a) Transportation of materials, goods or commodities to or from the land.

(b) Appearance of any building, works or materials.

(c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.

24 The materials, colours, decoration and/or finishes to be applied to the exterior of the building or works as described on the drawings or schedules endorsed to accompany this permit shall not be altered without the consent of the Responsible Authority.

25 This permit relates only to the use and/or development of the land and does not comprise an approval for the erection of any advertising signs. The location and details of any advertising signs to be erected on the land shall be the subject of a separate application.

26 Each dwelling in the building must achieve a four star energy rating in accordance with the First Rate Energy System of the Sustainable Energy Authority of Victoria, to the satisfaction of the Responsible Authority.

27 Air-conditioners and service units must not be located on any of the balconies or terrace areas so as to be visible from the street.

(a) The development does not start within two (2) years of the date of this permit; or

(b) The development is not completed within four (4) years of the date of this permit.

Before the permit expires or within three (3) months afterwards the owner or occupier of the land may in writing request the Responsible Authority to extend the expiry date.

29 The proposed crossover shall be built such that it is at least 6.0m wide at the property boundary, flared at 60o with a 3m radial turnout and 1m clearance to any fixed objects to the satisfaction of the Responsible Authority.

30 Any pole relocation as a result of the crossover shall be done at no cost and to the satisfaction of the Responsible Authority or VicRoads.

31 The driveway width is to be maintained at 6.0m wide for at least the first 5.0m in from the property boundary.

32 There shall be no boom gate or other obstruction to the movement of vehicles within 5.0m of the property line.

33 The proposed roller door shall be automated by remote control ie. no card reading device shall be used to activate the roller door.

34 The slope of the driveway is to be no steeper than 1 in 20 for the first 6m in from the property line.

35 All vehicular movements using the proposed crossover shall be made in a forward manner, that is there will be no reversing to/from the site.

36 All redundant crossovers shall be removed and the footpath and kerb and channel shall be reinstated to the satisfaction of and at no cost to VicRoads and the Responsible Authority.

37 Sightlines shall be maintained in accordance with the latest drawings (revision of 7th January 2004) submitted to VicRoads.

38 All mitigating works are to be completed at no cost and to the satisfaction of VicRoads and the Responsible Authority.

39 Work site traffic management practices must be in accordance with the Australian Standard AS 1742.3 Manual for Uniform Traffic Control Devices - Part 3: Traffic Control Devices for Works on Roads.

Mr Dominic Scally, Solicitor. Mr Scally called expert evidence from Mr Stuart McGurn, Town Planner of Fulcrum Town Planners and Mr Jim Higgs, Traffic Engineer of TTM Consulting Pty Ltd.

Ms Lorraine Stupak, Consultant Town Planner of LS Planning Pty Ltd

1 This was an application under Section 77 of the Planning and Environment Act 1987 to review a decision by the City of Moonee Valley to refuse to grant a permit in Application No. MV/15551/2002 for the sue and development of land at ;74 Keilor Road for a four storey building comprising 12 residential units and a commercial showroom together with reduced car parking and access to a road zone.

2 The subject site is located on the northern side of Keilor Road some 50m east of Berry Street and 20m west of Service Street. The site is 16.6m wide with a depth of 35.5m and an overall area of some 578 sq m. The site is presently occupied by a commercial building set back some 17m from the Keilor Road boundary. The front setback/forecourt is used for the display of vehicles.

3 There is a 1.83m wide easement located along the rear of the site. This easement terminates at the west boundary of the land and would appear to only serve the site and the property on the corner of Service Street and Keilor Road to the east.

4 The abutting property to the north contains a single storey weatherboard dwelling. The rear yard of the dwelling immediately abuts the rear of the subject site. Further to the north again is a driveway servicing a unit development to the north and a two storey block of flats to the north-west.

5 Land to the east of the subject site is occupied by a motor vehicle sales yard with a single storey workshop to the rear and vehicle parking forward of this. Further to the east is another car sales property at No. 70 Keilor Road.

6 To the west is a single storey commercial building set back from the site frontage with car parking in the front setback. This property operates as a printing premises. Properties within the wider area to the east and west on Keilor Road comprise a variety of shops, retail and commercial uses. The south side of Keilor Road is also occupied by commercial purposes, apart from an area of parkland immediately opposite the site known as Thompson Reserve. Land further to the south and to the north are zoned Residential and used for residential purposes. Keilor Road is a main road with both trams and buses operating along it. There are on-street parking restrictions in front of the site and further parking restrictions in Service Street.

7 The site is well located with respect to commercial services being some 400m from the Bulla Road/Mt Alexander Road shopping strip and within 1200m of the Keilor Road, Niddrie shopping strip. There are in addition a number of parks and schools within reasonable proximity of the subject site.

8 The proposal is for the demolition of the existing building on site and the construction of a four storey building comprising 12 dwellings and a basement car park for 17 cars and a commercial showroom. Pedestrian access to both the showroom and residential lift and stair foyer is by way of both a ramp and stairs from the street. The showroom as proposed has an area of some 272 sq m.

9 The upper floors are all residential. The first and second floors have identical layouts with two units on the Keilor Road aspect and three units to the rear. The front units each contain two bedrooms and the rear units are one bedroomed although the two western most units 3 and 8 also incorporate a study. This study room is of a size that in the Tribunal's view means it would not be used as a bedroom. In summary the proposal comprises six, one bedroomed apartments; five, two bedroomed apartments and one, three bedroom apartment.

10 Units 11 and 12 on the third floor are set back 4.49m from the site frontage, 2.5m from the west boundary and a minimum of 2.4m from the east boundary with the exception of the stairs and lift-well which are built to the boundary. Unit 12 to the rear comprises three bedrooms and Unit 11 two bedrooms to the street frontage.

11 The ground floor is set back from the rear boundary a distance of 1.83m corresponding to the easement. The upper floors step back on this aspect being 3.88m at first floor, 4.77m at second floor and 9.65m at third flor with the setbacks intruded into by the balconies. The maximum building height is some 16.5m to the top of the lift over-run and 14.3m to the highest point of the roof.

12 The building is articulated on its front presentation by way of the balconies, façade treatments and mix of colours and materials.

13 The building also includes three centrally located voids, one of 2.54 x approximately 4m on the western elevation and two smaller voids, 1 x 2.7m and 1.5 x 2.7m on the western elevation to provide light to centrally located rooms within the building.

14 The subject site is located within the Business 2 Zone under the provisions of Clause 34.02 of the Moonee Valley Planning Scheme. The purposes of the zone include:

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

* To encourage the development of offices and associated commercial uses.

15 A permit is required under the provisions of the zone to use the building for the purpose of accommodation. A permit is also required for a showroom which as an unspecified use and for construction and works.

16 A permit is also required for a waiver of car parking pursuant to Clause 52.06 of the Moonee Valley Planning Scheme. The residential component generally meets the standard car parking requirement of two spaces per dwelling and showroom does not have a specified car parking rate under the provisions of Clause 52.06.

17 The Responsible Authority took the view that the appropriate rate would be that applying to a shop which specifies the provision of eight spaces per 100 sq m of leasable floor area. The provisions of the clause allow for a waiver of the car parking requirement having regard to a number of matters set out in the clause including the public transport, car parking availability in the surrounding area, estimated demand and credits that the site might have with respect to previous uses.

18 Loading and unloading provisions also apply under Clause 52.07. A permit is required to waive these requirements if there is insufficient land available for the loading and unloading of goods.

19 A permit is also required with respect to land adjacent to a Road Zone Category 1 to create or alter access to the road.

20 Ms Stupak also informed the Tribunal that Clause 52.14 with respect to motor vehicle or caravan sales would need a permit that were the future use under certain circumstances. However at the present time it is uncertain what the use of the showroom will be.

21 The relevant clauses of the State Planning Policy Framework with respect to the proposal are:

* Clause 14.02 - Metropolitan Development. Among other things this clause encourages higher land use densities and mixed use developments near railway stations, major bus terminals, transport exchanges and tram and principal bus routes.

* Clause 18.02 - Car Parking and Public Access to Development

22 Melbourne 2030 is a seriously entertained planning policy. The directions of most relevance to this proposal is Direction 1(a) - A More Compact City and Direction 5 - A Great Place to Be. Melbourne 2030, in particular, encourages higher density housing in and around activity centres. Both Niddrie and Essendon are identified as major activity centres with the linear strip between them containing the subject site being predominately zoned Business 2.

23 The Municipal Strategic Statement contains a number of clauses of relevance to the subject site. The MSS recognises the need for new residential development to sustain the municipality's population given the continuing decline in average household size and its Vision Statement refers to the need to provide diversification of housing in and the manner which enhances existing streetscapes and is respectful of local character. The vision also incudes, at 21.03, the creation of urban villages so that people can work, reside and shop in the same area thereby reducing travelling time and providing for a more interesting city.

24 Land Use Policy is outlined at 21.06. The clause identifies a key issue as the provision of housing choice and affordability, especially for the elderly who wish to remain in the local community.

25 Local Planning Policy at 22.06 deals with the area containing the subject site. The clause however concentrates on the residentially zoned land in the area and has little to offer with respect to the proposed development.

26 The Responsible Authority's exhibited amendment C50 proposes to amend the Moreland Planning Scheme to introduce a Multi-Storey Residential Building Policy. The policy if approved would become 22.13 of the Moonee Valley Planning Scheme. The proposal however was received well before the adoption of the policy and the Council and Ms Stupak did not rely on it.

27 Ms Stupak's submission provides a chronology of events starting from the original application on the 18th of November 2002 to the receipt of the expert witness reports immediately prior to the hearing. The Tribunal does not intend to repeat all this information here suffice to say that advertising was undertaken and eight objections were received as a consequence. The objections being summarised by the council as:

28 The Responsible Authority referred the matter internally to their Drainage Engineer and Traffic Engineer who had no concerns subject to conditions and externally to VicRoads who also had no objections subject to conditions. The applicant provided amended plans in response to VicRoads' requirements which included a re-design of the parking layout. Responses were again sought from VicRoads who required a number of conditions.

29 The Responsible Authority subsequently resolved to refuse to grant a permit on the following grounds:

1. The bulk and scale of the proposal is out of character with the surrounding area.

2. The proposal will create unreasonable levels of bulk, which would adversely affect the residential amenity of the nearby properties to the north of this location.

3. The proposal would set an undesirable precedent for the area and is disproportionate in respect to bulk, scale and form with all other buildings in this location.

4. The proposal is an overdevelopment of the land.

5. The proposal is not site responsive and fails to positively contribute as a well designed building to this location.

6. Insufficient car parking is provided for the proposed uses and development.

30 The Tribunal finds it was common ground at the hearing that the site was an appropriate location for a development incorporating a commercial use at ground floor with residential above.

31 The Tribunal is of the view the central issues in this appeal after hearing the submissions and evidence before it and visiting the site are; the quality of the architectural response and presentation to the street, the amenity impact on the residential buildings to the north, reduction in the car parking requirements and internal amenity.

32 In the Tribunal's view a development of this type is strongly encouraged by planning policy. The Tribunal finds that this is an area that clearly is ripe for re-development and that the appropriate development for the area should not be dictated by the existing car yard style development with hard stand areas in front of showroom buildings. The Tribunal finds it appropriate that this development which is the first of its kind in this section of the road should be a trendsetter for further development on the northern side of Keilor Road. The Tribunal further finds that the height of the proposed development is consistent with current development in the area which includes a recently approved four storey aged care facility and a four storey office development further to the east.

33 The Tribunal does not accept Ms Stupak's criticism of the quality of the design. As already stated the Tribunal does not consider the design should be dictated by the existing adjoining commercial properties to the subject site and finds that the proposed building in its varied balcony setbacks and strong entrance feature will be a positive in the streetscape.

34 Ms Stupak had concerns about the elevation of the finished floor level of the showroom at some 700mm to 1m above ground level which in her view did not satisfactorily relate to the street. The applicant's latest basement car parking plans which have been accepted as satisfactory by VicRoads result in a reduction of the height of the showroom above the footpath to 500mm. The Tribunal finds that the reduction is sufficient to address the issue of interaction with the street and the public realm.

35 The Council had concerns about the presentation of the building to the north. The proposal on this aspect comprises a 4.5m high wall set back some 1.83m from the rear yard of the adjoining residential property. The building then steps back some 2m corresponding to the balconies of the first floor units and steps back a further 1m at the second floor level with the total setback at third floor being some 9.6m accompanied by a reduction in the width of building form by 5.3m. Further, significant articulation is provided on the northern façade by the balconies. The building on this northern aspect closely matches the setback requirements of ResCode with respect to an adjoining residential neighbour.

36 There were two aspects of the presentation to the rear at the hearing, , one being the distant view from the rear yard of Mr Nolan and from other properties at a distance and the other the visual impact on the immediately adjoining neighbour.

37 The Tribunal is of the view that the visual impact on the immediately adjoining neighbour will be little changed by the development given the acuteness of view angle necessary to see the upper levels of the building and the comparable existing wall height on the boundary of this land. The dwelling on the property to the north is located within the Business 1 Zone and cannot reasonably expect the high level of residential amenity that one would find in a residential zone or even at the interface to a residential zone. The Tribunal finds the visual impact of the proposal on this property is within the bounds of what is reasonable.

38 The most significant amenity impacts are on the adjoining property to the north by way of visual impact and overlooking. The applicant has provided details of angled slat screening out from the balcony designed to provide an outward but prevent a downward view. The Tribunal finds that such screening will adequately protect the immediately adjoining neighbour from overlooking. The Tribunal has no concerns with respect to overlooking at the distance that Mr Denton's property is from the site. The potential for overlooking to the east and west has been dealt with in the amended plans by way of 1.8m high obscure glass highlight windows with 1.7m sills. The Tribunal as a result finds there is no potential for overlooking from the proposed development.

39 With respect to views from the more distant properties, the Tribunal agrees that the building will be seen and that it does have a substantial built form. The Tribunal however notes that the proposal will not present as a flat façade when seen from the distance and the degree of recession of the upper floors will be clearly visible. The Tribunal in any event is of the view that given the distance of separation and the intervening built form that the visual impact on Mr Denton's property will be relatively insignificant.

40 The other matter of concern was internal amenity. The bedroom of the middle of the rear units, Nos. 9 and 4 has no external window. The applicant has dealt with this by providing glass sliding doors to these rooms. The source of light to the rooms in question will therefore be by way of borrowed light from the main living area which is completely glazed to the north. The Tribunal considers that this aspect of the proposal is satisfactory in that only two of the units are affected and the units concerned are one bedroomed and within 7.5m from the north facing light source.

41 In Ms Stupak's submission a total of 49 car spaces were required to be provided for the proposal defined as shop and dwellings.

42 The applicant called evidence from Mr Higgs with respect to the car parking demand. It was his evidence that the likely parking demand by residents based on the Australian Bureau of Statistics data for Essendon would be 12 and that the provision of 13 spaces for the residential component should be adequate.

43 The ResCode requirement calls for 16 car parking spaces, three of which are designed as visitor spaces giving a requirement of 13 spaces for the residential use.

44 It is accepted that there is an impracticality to visitor parking in the basement car park and a synergy between the demand for resident visitor parking and commercial parking in the immediate area of the subject site ie. that there is very little demand for on-street parking on Keilor Road outside of the Monday to Friday business hours making it reasonable to accept the figure for parking for the residential component at 13 spaces.

45 The question arises as to how much parking should be provided for the showroom or retail proposed aspect of this development. It was Mr Higgs' evidence that generally speaking the parking demands associated with restricted retail outlets was up to 2.5 spaces per 100 sq m of floor area giving a peak demand of 10 spaces. It was further his contention that of those 2.5 spaces per 100 sq m one was a staff parking spot and the remaining 1.5 were based on customer parking demand. It was therefore his evidence that the likely staff parking demand for a bulk goods or showroom use would be four spaces. A total of four on-site car parking spaces can be provided for the retail use and this in Mr Higgs' evidence would be sufficient. The six customer car parking spaces being accommodated within the pool of on-street parking available along Keilor Road.

46 Mr Higgs' firm undertook a parking survey and found that on a weekday there was of the order of 31 on-street car parking spaces available on Keilor Road which is well in excess of the car parking demand likely to be generated by the proposal. Overall it was his view that the varying peak demands for the residential and restricted retail use could be provided on the street. On being questioned by Mr Denton he acknowledged that if residents of the development owned more cars than the 13 spaces provided for then there would be a problem for them parking in the area as a consequence of the daytime restrictions. He also acknowledged that the statistical average of car ownership with respect to units was more likely to be correct in a large development than in a small one such as the present proposal. The Tribunal however is generally satisfied that the parking provision will be adequate and that purchasers of the units will be clearly aware of the impracticality of owning more cars than provided for with their unit.

47 Mr Higgs provided evidence with respect to traffic generation. The Tribunal however has no concerns in this regard given the main road status of Keilor Road.

48 There had been a number of issues associated with the parking access and car park design. These were resolved in a set of plans identified as revised plans and dated the 7th of January 2004. Although Mr Higgs thought the new design was somewhat over-engineered it satisfied the requirements of VicRoads and provides for the necessary number of spaces and storage, the storage being located on the wall above the car bonnet.

49 The new plan also has a disabled car parking space. The Tribunal notes that the proposed entry to the residential units is by way of a ramp and that the layout of Units 3 and 8 is amenable to providing a one bedroomed dwelling for a disabled person. The Tribunal was informed that these two single bedroomed units would be packaged and marketed as for persons with a disability.

50 In conclusion, the Tribunal finds overall that the building will be a dominant feature in Keilor Road in part because it is the first site on this section of the road to be developed. The Tribunal however is of the view that the design is well articulated, bold and attractive and that it would be inappropriate for the proposal to have regard to the adjoining style of car sales buildings in determining the design in this development. The Tribunal further finds that there will be minimal negative impact on any residential property. The property most affected being immediately to the north and being located within the Business Zone. In the Tribunal's view this reduces the level of amenity that can be expected, however in the Tribunal's view the proposed development will not have a significantly greater impact on the amenity of this dwelling than the existing development on the subject land.