1. The decision of the Responsible Authority is varied.
2. The Tribunal directs that Permit No. 0996/07 must contain the conditions set out in Permit 0996/07 issued by the Responsible Authority on 16 September 2008 but with the following modifications:
   • (a) Delete Conditions 1 c), q) and r).
   • (b) Renumber remaining conditions accordingly.
3. The Responsible Authority is directed to issue a modified permit in accordance with this order.

Mr John Cicero, Solicitor of Best Hooper Solicitors. He called written and oral evidence from Mr John Kiriakidis, Traffic Engineer of GTA Consultants and Mr Kel Twite, Town Planner of SJB Planning Pty Ltd.

1. At the conclusion of the hearing, I gave an oral decision to delete conditions 1 c), q) and r) and the following are the reasons for my decision.
2. I do not detail the proposal, the site context and planning scheme provisions as these are identified in the various documents contained on the Tribunal file.

1. At the hearing Mr Wong presented a written submission dealing with the Planning Scheme provisions and Council's reasons for including the 3 conditions requiring additional setbacks and car parking in accordance with the rate set out in Clause 22.08. Mr Cicero then responded as to why the conditions were unreasonable and called evidence from Messrs Kiriakidis and Twite. The following summarises my attitude to this proposal.

The requirement for more car parking - condition 1c)

1. The starting point for a consideration of car parking is Clause 52.06, not Clause 22.08. Although Clause 22.08 is specifically directed at student accommodation, I need to take into account the whole suite of relevant policy. This site is very close to a many types of public transport - train station within 100 metres, tram routes on Commercial Road, Chapel Street and High Street and bus routes along Commercial Road.
2. Policy has to be applied having regard to the particular circumstances and while I accept that Clause 22.08 specifies a car parking rate of 0.25 within 400 metres of listed tertiary institutions and railway stations/trams, common sense suggests that vehicle usage and access is likely to be different depending on whether the site is located close to or within a Principal Activity Centre such as Prahran or in a more remote and smaller centre such as Holmesglen. It is not only easy access to the tertiary institutions and proximity to public transport which is critical for students, and which the policy focuses on, but just as importantly ready access to shopping, entertainment, cultural facilities and an ability to reach a broad range of locations elsewhere in Melbourne.
3. Mr Cicero referred to the proposed Whitehorse student accommodation policy contained in Amendment C87 which has been reviewed by an independent panel chaired by Mr Andrew Clarke. The panel supported the proposal to apply two different rates depending on whether the site was within the Box Hill activity centre (a rate of 0.1 spaces per bed) or in other activity centres or within 500 metres of tertiary institutions and on the Principal Public Transport Network ( a rate of 0.25 spaces per bed). I consider that such an approach makes a great deal of common sense and although Clause 22.08 does not differentiate on that basis, it seems to be an intuitively logical approach given the physical, functional and other differences between Principal/Major Activity Centres and other locations.
4. I agree with the analysis contained in the evidence statement of Mr Kiriakidis and I also note that Council's traffic engineer also supported a lower rate of parking. Mr Wong is correct in noting that the support was based on a rate of 0.21 rather than the 0.18 being provided, but it does suggest to me that a rate of 0.25 is too high in this particular location. I am satisfied that the 24 spaces being provided, as against the 34 that would need to be provided if a rate of 0.25 was adopted, is an adequate number in this location.

1. It is generally accepted by Council and the Tribunal that Chapel Vision provides Council's most recent thinking on strategic planning for this centre. The proposed building is well within the recommended height limits for this area and although there are references to setbacks in Chapel Vision, none are specified. It is therefore necessary to assess each proposal having regard to its particular design attributes and site context. The context on the east side of Porter Street and to west of buildings fronting Grattan Street is such that there is no justification for reducing setbacks as proposed by Council.
2. I find the design of the building very appealing and I am concerned that altering setbacks by distances which appear arbitrary and without satisfactory explanation, will upset the balance of the building. I also note that Council's urban designer and planning officers did not recommend any changes to upper level setbacks.
3. I also do not agree that top levels should be setback to reduce visibility from Porter Street and properties fronting Grattan Street and, as has been remarked upon in other cases such as Rowcliffe, there is no policy objective or test concerning visibility/invisibility or that the top levels of buildings, particularly outside heritage areas, should be hidden from view.

1. I will therefore vary Council's decision by directing that a permit issue with the deletion of conditions 1 c), q) and r) as set out in my order.