The rear (west) facing balconies on the first and second floor screened to a minimum height of 1700mm above finished floor level and the rear (west) facing balcony of the third floor screened to height of 1700mm above finished floor level with the screening of the third floor balcony to comprise fixed horizontal slats that prevent downward views.

1. Consequential re-number of the remaining parts of Condition 1.

Mr John Klarica, Town Planner of Calibre Planning Pty Ltd

Mr Vasilios Syrbopoulos for himself and Dimitrios Syrbopoulos

Ms Helen Brown for herself and for Kathryn & Elizabeth Brown

The proposal is to construct a four storey building plus basement car parking with use to comprise two shops at ground floor level and eight dwellings in the levels above. The development comprises the following:

• Demolition of existing buildings except for the two storey front façade. A new verandah over the footpath is proposed.
• Basement level accessed from the rear lane to contain 10 car spaces, lift and stair access and three bicycle spaces
• Ground floor comprising two shops, a foyer providing pedestrian access to stairs and a lift to upper levels, two car spaces, bin storage and a landscaping area adjacent to the rear laneway.
• First and second floors each containing three dwellings.
• Third floor containing two dwellings with roof plant and equipment above.

Elevations show an overall height of 13.9 metres, retention of the existing parapet front façade and part of the return walls, new walls in cement render and a pitched colorbond roof to the top level.

All dwellings contain two bedrooms and have access to a balcony.

Section 80 Planning and Environment Act 1987

Clause 34.01 Business 1 zone requires a permit for construction of a building or to carry out works. A permit is required for use of the land for dwelling if any frontage at ground floor exceeds 2 metres.[1]

Clause 43.01 Heritage Overlay requires a permit for demolition, construction of a building, construction or carrying out of works.

Clause 52.06 Car parking specifies that a permit is required if the number of car spaces required in the table to the zone is not met.

Clause 52.07 Loading and unloading of vehicles specifies that a permit is required if the required loading provision is not met.

Clauses 11, 12, 14, 15.11, 15.12, 16.02, 17.01, 17.02, 18.01, 18.02 and 19.03 of the State Planning Policy Framework.

Clauses 21 Municipal Strategic Statement, 22.03 Activity Centres, 22.08 High Street Corridor Land Use and Urban Design and 22.10 Residential and Mixed Use Development of Four or More Storeys.

Clauses 34.01 Business 1 Zone, 43.01 Heritage Overlay and 45.06 Development Contributions Plan Overlay.

Clauses 52.06 Car parking, 52.07 Loading and unloading of vehicles and 52.34 Bicycle facilities and 52.35 Urban context report and design response for residential development of four or more storeys.

The review site is located on the west side of High Street between Barry and Westgarth Streets in Northcote. The land is rectangular with a frontage of 12.23 metres and an area of 414 square metres.

The rear, or western boundary, of the site abuts a 3 metre wide bluestone constructed right of way that extends between Barry Street and Westgarth Street. This right of way provides rear access to the properties facing High Street and joins with an east-west section of right of way that provides rear access to residential properties facing Barry and Westgarth Streets.

On the west side of the right of way, immediately opposite the review site, is a single storey dwelling facing Westgarth Street. This dwelling has a side wall to the right of way and secluded private open space and car accommodation in the rear yard.

To the north west is a dwelling facing Barry Street also with a side wall to the right of way and secluded private open space and car accommodation in the rear yard.

To the north and south of the review site are shops facing High Street all with an upper level above. There are varying amounts of built form in the rear of these properties including some with substantial site coverage, some with open rear yards used for car parking and extensive boundary construction. The Westgarth cinema is located further north, on the north west corner of Barry and High Streets.

On the opposite side of High Street are retail outlets in single storey shop buildings.

High Street is a major thoroughfare containing a tram line and opportunity for two lanes in each direction with the outside lane in each direction used for parallel car parking except when clearway restrictions apply.

Train stations and various bus routes are within walking distance of the review site.

The Tribunal inspected the review site and surrounds on 24 March 2009 including a view from 55A Westgarth Street and 70 Barry Street.

1. This case is about a four storey mixed use development at 63-65 High Street, Northcote. Darebin City Council (the 'Council') issued a permit for the proposal subject to a number of conditions, one of which is contested by the applicant. This condition requires the submission of amended plans to show deletion of the third floor of the buildings and resultant lowering of the overall height of the building.
2. Council's reasons for inclusion of the condition related to a concern about overall height and compliance with local policy. It was Council's submission that a lower form with a maximum height of three storeys would be an acceptable scale, complement the streetscape and comply with the relevant policy.
3. Respondent objectors supported the imposition of the condition requiring deletion of the third floor raising concerns about overdevelopment, excessive height and negative effect this has on the streetscape, unacceptable amenity impacts, inconsistency with policy, inadequate parking and increased traffic congestion.
4. Having inspected the review site and surrounds, considered the submissions and evidence and had regard to the relevant policies and provisions of the Darebin Planning Scheme (the 'Scheme'), I find the third floor acceptable. My reasons follow.

1. An application for permit for the proposal was lodged with Council on 17 December 2007. Following advertising of the application for permit, 36 objections against the proposal were lodged with Council.
2. Council referred the application internally and externally to obtain advice on a number of matters including heritage, urban design and traffic and parking matters. There was no objection raised to the application in relation to these matters although a number of requirements to be included on a permit were recommended.
3. On 28 July 2008 Council resolved to issue a Notice of Decision to grant a permit subject to conditions. No application to review the Notice of Decision was lodged and a permit was granted on 22 September 2008.
4. On 9 October 2008 an Application for Review pursuant to Section 80 of the Planning and Environment Act 1987 against inclusion of Condition 1(a) of the permit was lodged with the Tribunal. Condition 1(a) states:

The third floor of the building is to be deleted and the overall height of the building is to be lowered accordingly.

1. My decision is to support deletion of the contested condition and allow the proposal at a four storey height and I have reached this position having regard to my findings on the following key issues:
   • Policy support for the third floor[2] of the development
   • Impact of third floor on streetscape and surrounds and heritage values.
   • External amenity impacts
   • Adequacy of car parking provision and traffic matters.
2. In setting out the reasons for my decision, I do not recite all of the material presented. The written submissions and evidence tendered by the parties are retained on file.

1. I find that there is policy support for the third floor of this development subject to acceptable built form, heritage, amenity, traffic and parking impacts, matters I address later. This policy support derives from the following:
   • The third floor contains two dwellings and additional dwellings are sought by both State and local policy to increase diversity of accommodation and contribute to urban consolidation objectives.
   • The two dwellings at the third floor will add to the patronage of the retail centre and contribute to on-gong viability as sought in State and local policy relating to activity centres

Impact of third floor on streetscape and surrounds and heritage values

1. Council expressed concern regarding the overall height of the development and compliance with local policy. Mr Klarica advised that it was Council's view that the permit condition requiring deletion of the third floor is appropriate for the following reasons:
   • The High Street Corridor Land use and Urban Design Policy[3] (the 'High Street Policy') includes the site in a precinct where the historically significant streetscape, small scale and narrow fronted shops and potential for development to adversely impact on those values is recognised in the imposition of a height limit. The applicable precinct guidelines specifically state that new buildings or extensions are not to exceed one level above existing floor levels and the inclusion of two levels above the existing two storey buildings on the site fails to respond to this policy and address the sensitivity of the precinct.
   • Although not a gateway location, the review site is quite visible located at the introduction to the High Street activity spine and the height will result in a dominant element. The third floor of the building will impact upon views from some distance when approaching the site and activity centre from the south and east where the existing building is quite visible.
   • The proposed roof form will be seen projecting above the parapet resulting in a high, dominant and broad roof structure with boundary walls, dormer windows and plant screens projecting above the existing parapet walls and nearby buildings.
   • The surrounding buildings are generally 1 or 2 storeys in height and the four storey proposal does not appropriately respond to this urban context
2. Mr Croker submitted that the High Street Policy was informed by extensive community consultation and Council and independent Panel review that resulted in a detailed set of guidelines. It is very disappointing to see a proposal that fails, in his view, to comply with guidelines that have been through such a rigorous process. Mr Croker raised the following concerns in relation to the third floor:
   • The top floor will negatively impact on the heritage fabric of the area that includes not only the façades.
   • This section of High Street is identified as a neighbourhood activity centre. It is not a high density centre where four storey or greater heights are specifically encouraged and a reasonable balance is needed. Deletion of the third floor provides that balance.
   • The negative impact on vistas to the Westgarth cinema, an iconic structure, particularly in the approach from the south.
   • Existing developments that have been constructed prior to the High Street Study show the negative impacts on the streetscape and on amenity to neighbouring properties that can occur and should not be used as a justification for development that does not meet clear guidelines.
3. Mr Syrbopoulos submitted that the top floor would adversely impact the streetscape, negatively affect heritage values, set a dangerous precedent for the precinct and be contrary to local policy. Ms Brown raised concern about visual bulk of the top floor and the impact that would have on nearby residential properties.
4. Mr Testro submitted that the requirement to delete the third floor is unreasonable having regard to the site context and policy provisions. It was his submission that Council in imposing the condition requiring deletion of the third floor has been preoccupied with a single component of the policy framework and inappropriately elevated that policy to the level of rules. The Business 1 zoning of the land, the inner urban context, the current mix of building heights and styles nearby and the evidence of Mr Holdsworth that there is no urban design or planning reason to require removal of the third floor, combine, in his view, to support the retention of the third floor.
5. I have considered the impact of the third floor of the proposal on the streetscape and surrounds and the heritage values as follows.

1. State and local policy seek to ensure that height, scale and mass of new development responds to the existing urban context and provides a scale that is appropriate to nearby streets, other public places and buildings.[4] The High Street Policy includes the review site in a Precinct 2: Westgarth Central where it is policy, amongst other things :

To encourage the development of small scale residential development above or behind business premises.

To ensure that the visual impact of development behind or above existing buildings is minimised.

1. The High Street Policy contains a number of Design Guidelines that must be considered in planning applications for all precincts and additional guidelines for specific precincts. In relation to the application before me I am satisfied that all relevant guidelines are met except for two and these are:
   • New development is required to have rear setbacks adjacent to residential properties in accordance with an applicable diagram. The roof line of the third floor intrudes into the setback specified. The intrusion comprises approximately 1 metre in height for a length of 2.5 metres in both corners of the 12.5 metre wide rear roof line.
   • New buildings or extensions are not to exceed one level above the existing building floor levels. The proposed development is four storeys and the existing building contains two storeys.
2. I accept Mr Croker's submission that the Design Guidelines for redevelopment of this area are the result of extensive community consultation and review. I agree that as part of local policy contained in the Scheme these Design Guidelines must be given significant weight in considering any application for permit. However it is important to recognise that policy does not have a mandatory effect. I agree with the view expressed by Member Davies, referred to by Mr Testro, in Salagaras v Darebin CC [5] where she said:

Before turning to an assessment of the proposal in terms of the Design Guidelines at Clause 22.08-3, I note that while many of them are phrased in terms of specific maximum heights of walls or overall building height, they are nonetheless still 'guidelines'. They are not absolute restrictions in the way, for instance, that there are maximum heights in some Design and Development Overlay provisions. There can be flexibility in their applicability to a specific proposal.

1. I consider the non-compliance with policy identified above is not necessarily fatal to the proposal. The key matter to assess is the impact of the non compliance with the guidelines and I address this as follows.
2. The rear setback requirement applies to all precincts under the High Street Policy and is aimed at protecting residential amenity. The guideline is based on Standard B17 in Clause 55.04-1 of the Scheme[6] and the objective of this standard is

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.

1. I am satisfied that the height and setback of the third level limits adverse impact on amenity of neighbouring dwellings. The effect of the third level on sunlight and daylight to nearby residential properties I find acceptable, matters I address in more detail later. I acknowledge that the development as a whole will result in increased built form to the laneway interface but I am not persuaded that the third floor will create visual bulk. I consider that the 6.2 metre setback of the upper level from the rear lane and the articulation provided by the recessed balcony in the rear elevation together with the variation in rear setbacks provided by the lower level balconies will avoid the appearance of visual bulk to residential properties. In making that finding I have had regard to the substantial built form that currently exists adjacent to the laneway and whilst I acknowledge that it may predate the High Street Policy, it nevertheless forms part of the built form character.
2. The other non compliance with Design Guidelines is that the third floor exceeds the requirement for new buildings to be no more than one level above existing building floor levels. This is a specific guideline in Precinct 2 of the High Street Policy. Despite the third floor resulting in more than one level above the existing building, I am satisfied that the development will not create an inappropriate visual impact on the streetscape or surrounds. I say this for the following reasons.
3. There was some discussion at the hearing on exactly how much higher the proposal would be compared with the existing buildings on the land. In my view, this is important, in terms of built form impact, rather than the number of storeys or levels. The lower floor to floor heights in each storey of the proposed development compared to those in the existing building means that the 4 storeys proposed results an overall height increase of some 4.6 metres to the roof ridge compared to the existing ridge height of the two storey buildings on the land. That is, the existing roof ridge is 8.9 metres high and the proposed roof ridge would be 13.5 metres.[7] Given the Design Guidelines allow one level above existing building, I consider the non compliance is represented by approximately 1.6 metres of additional height.[8]
4. The third level is significantly recessed from the front boundary and sits behind the existing façade that contains a central section of parapet that rises to a height of 10.5 metres flanked by 9.5 metre high sections. This design will, in my opinion, effectively limit views of the upper level from directly opposite High Street and avoid increased overshadowing of public spaces.
5. Although the upper level will be visible when travelling north and south along High Street and from other aspects to the east and west, I consider it will not represent a dominant or excessive element in the streetscape or surrounds generally. The setback of 6 metres from the front boundary, 6.2 metres from the rear boundary and 1.5 metres from the side boundaries (except for a small section on the north boundary), the retention of the existing 9.5 metre high parapet to the side boundaries and incorporation of the level into a roof form design will, in my opinion, ensure that the third level is visually recessive.
6. Development on the west side of High Street, both north and south of the review site, is two storey with the Westgarth Cinema to the north presenting a higher and dominant built form in this section of the centre. There is a three storey development at the rear of 57-59 High Street and some two storey built form in other rear yards of shops facing the west side of High Street. On the east side of High Street, opposite the review site, shops are generally single storey although a contemporary three storey development has been constructed on the south east corner of Candy and High Streets. I am satisfied that inclusion of the third floor in the development will result in a building that is not significantly greater than one level above the two storey Victorian period retail buildings and that the building will not be visually intrusive in the surrounding built form context.
7. I do not share concerns about loss of vistas to the Westgarth cinema, noting that such views are not protected by any reference in the Scheme. The Westgarth Cinema is a dominant building in the centre due to its size, bulk and corner location. I find that the recessed third floor of the proposed development located some 50 metres to the south of the cinema will have little impact on views of the cinema or detract from the dominance of the cinema building.
8. In reaching my findings on the built form impact of the third floor I have placed weight on the evidence of Mr Holdsworth that there are no visual or amenity aspects of the design which would be improved by the removal of the third floor. I also considered the independent urban design advice obtained by Council that the proposed development achieves the objectives of the Design Guidelines.[9]

1. The heritage values of the area are protected by the Heritage Overlay that applies to the review site and requires a permit for demolition and construction of new buildings. Various State and local policy provisions emphasise the importance of protecting heritage places and ensuring sympathetic redevelopment in heritage areas. In Precinct 2: Westgarth Central of the High Street Policy it is policy, amongst other things, to:

...retain and enhance the relatively intact, valued and historically significant Victorian and Edwardian streetscape.

1. The High Street frontage of the property is the primary focus of the heritage place and the proposal incorporates retention of the existing façade and replacement of the existing cantilevered verandah with a post supported corrugated roofed verandah that is more in keeping with the heritage values of the street. The ground, first and second floors of the new development effectively sit behind the existing façade. Although the upper level protrudes above the façade, I consider the setback of this level, at 6 metres from the frontage, avoids a significant change of scale at the streetscape frontage, creates a recessive element in the streetscape and minimises visibility from the footpath level. The upper levels, including the third floor, are of contemporary design and are appropriately distinct from the heritage fabric. I am satisfied that the proposed third floor will avoid any adverse impact on the heritage values of the streetscape. In making this finding I have had regard to the lack of objection to the proposal by Council's Heritage Adviser.[10]

1. The deletion of the upper level would result in a reduction in the number of dwellings from 6 to 8 and it was the submission of respondent objectors that this would result in an improved outcome in terms of car parking, traffic and waste disposal for the following reasons:
   • A reduced number of dwellings would mean less additional traffic and thus less negative impact on traffic congestion in the area generally and specifically in the laneway. Even a small reduction in dwellings would result in reduced traffic congestion in the area and this is important given the current level of congestion arising from increased density of residential development, new commercial developments including bars, restaurants and the reinvigorated Westgarth cinema together with the opening of Eastlink and the use of nearby main roads as routes for over dimensional vehicles.
   • The car parking ratios for each occupancy would be improved; an important consideration in an area where there is limited opportunity for onstreet parking and significant competition for available spaces especially in the evenings when cafes, bars and the cinema are at peak use.
   • A reduced number of dwellings would allow more area for onsite storage of waste.
   • Potential 24 hour clearways and a tram 'super stop' in High Street would result in greater need for adequate onsite parking and loading facilities; provision that would be improved by the reduction in the number of dwellings proposed.
2. It was the evidence of Ms Dunstan that the onsite parking provision will be sufficient to cater for residents and retail staff, overflow car parking for customers and visitors can be accommodated on street nearby, a waiver of the loading bay is justified, traffic generated will be relatively low and will not adversely impact the operation or safety of the right of way or the surrounding road network.
3. I address each of the matters in turn as follows.
4. Parking provision proposed on site is eight car spaces in a secured basement car park and two car spaces setback 3 metres from the rear right of way. All car parking is accessed off a ramped driveway from the rear right of way. I find the parking provision adequate for the development as proposed and have not been persuaded that increased car parking allocation options created by the deletion of two dwellings is necessary.
5. I consider the ten spaces to be provided on site will cater for resident and staff demand for car parking based on Ms Dunstan's empirical assessment of parking demands and the excellent proximity of the site to public transport.[11] I am satisfied that this provision will cater onsite for the long term demands for parking generated by the development and there is no need to provide car spaces in excess of the proposed one per dwelling and one per shop.
6. I agree with Ms Dunstan's assessment that the development is likely to result in a short fall of seven car spaces to cater for the short term demands of visitors and customers. I am satisfied that this shortfall is acceptable without requiring deletion of the third floor having regard to the following matters:
   • The deletion of two dwellings would only marginally decrease the demand for visitor car parking.
   • The additional parking that may be provided on site by the deletion of two dwellings will not be conducive to regular use by customers or visitors due to the limited practicality created by access off a right of way at least 30 metres from the nearest street.
   • The parking survey referred to by Ms Dunstan in evidence indicates that while there is medium-high demand for onstreet parking nearby, particularly on Saturday evening when peak residential demands combine with peak parking demands associated with the nearby Westgarth cinema, restaurants and bars, there is nevertheless spare parking available in the area at all surveyed times.[12] Although the limited nature of the surveys was criticised by respondents, I am satisfied that the times surveyed are representative of peak demand during the lunch period and evenings.
   • The existing retail premises on the review site do not provide any on site car parking for customers.
   • Although there may be changes to the on street parking arrangements in the future that decrease the number of spaces available, such as increased clearway requirements or a 'super stop' for the tram, these are unknown. In any event the parking surveys show there is onstreet parking availability in streets other than High Street or Westgarth Street where those changes may occur.
   • Council's Transport Management and Planning Branch indicated that the parking provision is acceptable.[13]
7. Traffic generated by the development by the development is likely to be in the order of 48 vehicle trip ends (vte) per day of which 6 vte are in the commuter peak hours.[14] I am satisfied that the paved right of way which provides access points at Westgarth, Barry and McLachlan Streets can cater for this level of additional traffic. I accept the respondents' submissions that traffic congestion in the area generally is increasing due to a number of factors. I am not, however, persuaded that the traffic likely to be generated by the two dwellings[15] that would be deleted by the contested condition will have a significant impact on the operation and safety of the right of way or the surrounding road network.
8. I see no advantage in terms of waste collection arising from the deletion of two dwellings and I am satisfied that the provision for waste collection is addressed by Condition 13 of the permit that requires submission of a waste management plan to the satisfaction of Council.
9. The retail component of the development generates a requirement for onsite loading and unloading.[16] There is no on site provision for loading and unloading and this has been accepted by Council in granting the permit. Even if the third level was deleted resulting in a reduced car parking requirement for dwellings and creating an increased opportunity for provision of a loading bay accessed off the right of way, I am not persuaded this is desirable. I agree with Ms Dunstan that in practice the majority of loading activities associated with the retail use will be undertaken by smaller type vehicles which can be accommodated on street in the area and such an arrangement is similar to the existing retail uses.

1. Mr Syrbopoulos raised concerns about decreased natural light and morning sunlight, loss of views, overlooking from the third floor and increased noise levels from upper level residents and from increased traffic using the laneway.
2. Loss of amenity due to noise from increased traffic and potential cracking of her house were concerns of Ms Brown. Loss of views, visual bulk to back yard, overshadowing, overlooking and ongoing maintenance of privacy screens were also matters raised by Ms Brown.
3. The owner of 69-71 High Street raised concern about overlooking and possible restriction on future development.
4. The matter of visual bulk I have largely addressed in my assessment of the built form. I address each of the other matters raised in terms of the effect created by the third floor as follows.

1. In assessing the impact of the third floor on daylight and sunlight I have considered a number of provisions of the Scheme. State policy requires consideration of the Guidelines for Higher Density Residential Development[17] that include as Objective 2.6:

To ensure areas can develop with an equitable access to outlook and sunlight.

1. Design suggestions to achieve this objective are provided including:

Maintain sunlight and daylight access to adjoining private open spaces of dwellings in accordance with Clause 55 of the Planning Schemes.

1. Local policy[18] emphasises the need for higher density housing to minimise impacts on the amenity of adjoining residential land. In particular Clause 22.10 Residential and Mixed Use Development of Four or More Storeys requires consideration to be given to the following parts of Clause 55 that relate to sunlight and daylight:
   • Clause 55.04-3 to allow adequate daylight into existing habitable room windows.
   • Clause 55.04-4 to allow adequate solar access to existing north-facing habitable room windows.
   • Clause 55.04-5 to ensure buildings do not significantly overshadow existing secluded private open space.
2. I am satisfied that the third floor of the development satisfies the relevant Clause 55 objectives and standards and the State and local policy for the following reasons.
3. The proposed building ensures a 3 square metre light court to any nearby habitable room windows thus ensuring the applicable daylight standard is met. There is no north facing habitable room window within 3m of the boundary of an abutting lot thus ensuring the standard in relation to north facing windows is met.
4. At the equinox the building will cast morning shadows to the west including some shadow to the secluded private open space at 55A Westgarth Street. This space has an approximate area of 34 square metres. I agree with Mr Holdsworth that the third floor of the development, which is setback 9.2 metres from the eastern boundary of 55A Westgarth Street and recessed from the balconies below, only marginally increases the shadow to that secluded private open space beyond that cast by the second floor. In any event the shadow will have moved to the laneway by 10am at the equinox and I consider the specified standard of Clause 55.04-5 will be met. I also note that a substantial two storey building sited on the rear boundary of the review site which would currently cast shadow in the mornings to rear yard of 55A Westgarth Street is to be removed.
5. There will be no shadow cast by the third floor of the development to the secluded private open space of 70 Barry Street which is to the north west of the review site.

1. The Guidelines for Higher Density Residential Development specify that

The internal layout of buildings and individual apartments should take adjoining properties into account. Existing dwellings should be protected from potential overlooking in accordance with the requirements of Clause 55 of planning schemes.

1. Local policy seeks to avoid or minimise overlooking of neighbours with screens or other corrective techniques used to assure privacy and this outcome is also sought in Clause 55.04-6 of the Scheme where the objective is to:

To limit views into existing secluded private open space and habitable room windows.

The standard to achieve this objective is (in part):

A habitable room window, balcony, terrace, deck or patio should be located and designed to avoid direct views into the secluded private open space of an existing dwelling within a horizontal distance of 9 metres (measured at ground level) of the window, balcony, terrace, deck or patio....

1. A condition of the permit requires the west (rear) facing balconies of the first and second floors to be screened to a minimum height of 1.7 metres above finished floor levels. I have considered the potential for overlooking from the third floor balcony and windows and I find as follows:
   • There is some overlooking potential from the west (rear) facing balcony of the third floor. Although the balcony is setback at least 9 metres from the nearest secluded private open space or habitable room window of a dwelling in a Residential 1 zone, I agree with Mr Holdsworth that the use of horizontal slats that prevent downward views is appropriate to limit overlooking. This matter can be addressed by a modification to Condition 1(c) of the permit.
   • The design avoids overlooking to the backyard of the adjoining video shop and dwelling to the north from the third floor balcony. This balcony is contained in the roof space and has roof form at its northern and southern ends.
   • A dormer window to Bedroom 1 of Apartment 8 at the third level faces north but views from this window to the backyard of the video shop and dwelling to the north are adequately limited by the parapet of the development.
2. I am satisfied that Ms Brown's concern about ongoing maintenance of privacy screens is addressed by the inclusion of the screen as part of plans to be endorsed pursuant to a permit that provides an ongoing compliance requirement capable of being enforced under relevant legislation.

1. I am not persuaded that the traffic or general activity noise likely to be generated by future occupants of the two dwellings at the third floor would be unreasonable or that the noise would be anything other than what is associated with normal residential use of land.
2. The additional traffic generated by two dwellings is unlikely, in my opinion, to cause cracking in dwellings or walls adjoining the right of way.

1. Outlook or views from existing residential properties are a relevant amenity consideration. I consider however that reasonable expectations of a continued view or outlook must be tempered in this case by the inner urban context, the proximity to a business zone and the absence of any specific Scheme provision aimed at protecting views from nearby dwellings.
2. I accept that the development will change the outlook from windows and secluded private open space at 55A Westgarth Street and to a lesser extent from 70 Barry Street. I find however that the third floor will not significantly add to that change. The setback from the rear boundary and the appearance of containment within the roof space will avoid, in my view, this level being a dominant element in the outlook from the properties west of the lane. Views from properties further distant from the review site will be mitigated by distance and intervening buildings as well as by the recessed nature of the upper level from the level below.

1. I share the view commonly expressed by the Tribunal that development proposals should not generally be constrained by what might happen in the future. I thus do not accept the submission of the neighbour that a potential restriction on development of their property arising from the inclusion of balconies on the northern side of the review site is a reason for deleting the third floor. In any event it is the first and second levels that will rely on northern light to windows and balconies and these levels are already approved under the existing permit and not before me for review.
2. In a Business 1 zone a dwelling is not subject to a permit provided any frontage at ground level does not exceed 2 metres. The plan shows the frontage to the dwellings at ground floor at 3 metres while the actual entry door is 2 metres wide. Council has granted permission for use of the land for dwellings but has included a condition that requires amended plans be submitted showing the entry to the dwelling to be less than 2 metres in width. It seems that Council on the one hand considers a permit is required for dwelling use but on the other hand seeks a change to the plans that would obviate the need for a permit.[19]
3. Although the condition requiring change to the entry was not part of the application for review, Mr Klarica and Mr Testro agreed that the issue should be clarified. I find the ground floor entry to the dwellings is satisfactory providing a 2 metre wide entry and a 3 metre internal foyer space that provides for letter and meter boxes and will not inappropriately interrupt the retail frontage to High Street. I note that the officer report on the application for permit indicated that the layout appropriately provided an active frontage to the street at ground floor with an integrated entry providing access to the upper floors. I consider the there is no need for modification to the plan and I will require that condition 1(b) of the permit is deleted.
4. A shop use is not subject to a permit in the Business 1 zone and I will direct reference to permission for that use be deleted from the permit.
5. Given my findings on the acceptability of waiving the provision of a loading bay and the provisions of Clause 52.07 that specify waiving of the requirement is subject to a permit, I will direct that permission is included in the permit.

1. For the reasons set out above, I will direct that the decision of the Responsible Authority be varied. It is ordered that a permit be issued subject to modified conditions.

[1] I address the need for a permit for the dwelling use in detail later in this decision.

[2] For consistency with the permit condition, I have referred to the contested top level of the proposal as the third floor.

[3] At Clause 22.08 of the Scheme. This policy includes reference to the High Street Precinct Guidelines, David Lock Associates and Planisphere March 2005. Following the hearing Mr Klarica clarified, by letter dated 25 March 2009, the differences between this reference document and the November 2002 Guidelines referred to at the hearing, providing a copy to all parties. This clarification was provided at my request.

[4] At Clauses 19.03, 21.05-3 and 22.10 of the Scheme.

[5] [2008] VCAT 2501

[6] As referred to in Clause 22.08-3 of the Scheme.

[7] These heights vary due to changes in levels over the review site.

[8] Noting that Clause 22.08-3 of the Scheme specifies that storeys above ground floor are expected to be 3 metres high.

[9] Written advice from Mark Sheppard of David Lock Associates dated 22 May 2008 provided at the hearing by Mr Klarica.

[10] City of Darebin Internal Planning Referral from Dale Kelly, Heritage Adviser (response undated but referred on 21 July 2008) indicating no heritage objection to the proposal subject to conditions unrelated to the retention otherwise of the third floor.

[11] Including a tram route in High Street, Merri railway station approximately 400 metres to west, Westgarth railway station approximately 200 metres to the east, bus routes along Westgarth Street.

[12] Survey times included Friday 20 February 2009 between 11am and 2pm (at hourly intervals) and at 8pm; Saturday 21 February 2009 between 11am and 2 pm (at hourly intervals) and at 8pm and Tuesday 17 February 2009 between 10am and 11 am.

[13] As indicated in Internal Referral comments dated 27 May 2008 provided by Mr Klarica at the hearing. The support was subject to some requirements including provision of a sustainable transport display area and provision of bicycle spaces, matters that are addressed by conditions on the permit.

[14] Based on Table 7: Expected Traffic Generation contained in Ms Dunstan's evidence.

[15] Each dwelling is likely to generate 5 vehicle trip ends (vte) per day with 0.5 vte at peak hour. The deletion of two dwellings would thus potentially reduce traffic in the laneway and surrounding road network by 10 vehicle trips per day of which one would be at peak hour. These figures are based on the RTA Guide to Traffic Generating Developments 2002 referred to in Ms Dunstan's evidence.

[17] Prepared by the Department of Sustainability and Environment 2004 and referred to at Clause 19.03 of the Scheme.

[18] At Clauses 21.05-2 Housing, 22.08 High Street Corridor Land Use and Urban Design and 22.10Residential and mixed Use development of Four or More Storeys.

[19] Noting that the condition refers to entry rather than frontage and unnecessarily, in terms of the Section 1 condition of the Business 1 zone, requires the entry to be less than 2 metres rather than not exceeding that width.