No. 72 Serrell Street and part No. 402 Waverley Road, Malvern East

Regis Group Pty Ltd v Stonnington CC [2008] VCAT 2336

1. Permit application no. 1214/07 is amended to include reference to the use of No. 72 Serrell Street for a residential building and to confirm the description of the land as No. 72 Serrell Street and part No. 402 Waverley Road, Malvern East. The plans dated June 2008 are substituted as the application plans in permit application no. 1214/07 and in this proceeding.
2. In permit application no. 1214/07, the decision of the Responsible Authority is affirmed. A permit is not granted and no permit is to be issued.

Mr P Bisset, Minter Ellison lawyers. He called evidence from Mr S McGurn, town planner; Mrs K Partenio, traffic engineer; Dr A Howe, consultant gerontologist; Mr M McWha, landscape architect; & Mr R Burton, acoustic engineer.

Mr M Rozman, Mr P Marshall, Ms D Kampus, Mr G Liarakos, Mr J Rosier, Mr K Miller, Mr R Zendarski & Ms M O'Toole in person. Dr J McCutcheon for J McCutcheon.

Alterations/additions to an aged care facility/independent living units to provide 125 low and high aged care beds in 111 rooms. A total of 39 car spaces, two in the site's frontage and 37 in an undercroft area. The development would be generally two to three storeys[1] in 5 "houses" or wings. Vehicle access to a service area/loading bay and reception would be from Serrell Street. A separate driveway along the southern boundary would lead to the rear car park; this forms the ground level of "House 4".

Residential 1 Zone & Special Building Overlay (part only).

Clause 32.01. Clause 55 applies to a "residential building".

Clauses 11, 12, 14, 15.02, 15.05, 15.12, 18.02, 18.06, 18.09, 19.03, 21, 22.02, 22.06, 22.07, 22.12, 22.13, 52.06, 52.34, 63, 65.

The review site is 8,037 square metres and part of a larger property, Weeroona, formerly used by The Salvation Army for aged care and retirement living. A permit was issued for subdivision on 7 October 2007 but that has not been acted upon. The review site is Lot 1 in that subdivision. It contains a mainly single storey 33 bed high care facility and 14 single storey retirement units. The site also includes a lot a No. 72 Serrell Street that contains an unoccupied dwelling. The site's street frontage is to Serrell Street. The balance of the site abuts the existing low care and accommodation in Weeroona to the north and 11 dwellings fronting Serrell Street and Nirvana Avenue.

10 November 2008 including the site, properties at Nos. 45 - 51 Nirvana Avenue and the locality.

1. The review site in this proceeding involves just over half of a larger property that has been used for aged persons' accommodation. Weeroona comprises a spectrum of accommodation options with independent living, low level care and nursing home care. Some parts of the complex are now unoccupied. The site is the southern portion of the Weeroona property and includes one additional lot at No. 72 Serrell Street. The site has a street frontage only to Serrell Street and, because of the irregular shape of the land, many direct abuttals with the rear backyards of detached dwellings and three units. The setting is, therefore, essentially low scale residential other than with respect to the more intensive form and land use to the north being the balance of the Weeroona property.
2. It is this physical context that is critical in considering the various issues raised by this permit application with respect to built form and site layout. Other critical considerations are an obvious lack of aged persons' accommodation in the wider locality and an increasing need for aged care in the City of Stonnington for which it is necessary to provide.
3. The Regis Group lodged a permit application with the Stonnington City Council for the proposal and, because the Council failed to decide upon that application, has requested the Tribunal to direct the issue of a permit.[2] The Responsible Authority opposes the grant of a permit on multiple grounds, supported by Respondent Objectors. Those grounds focus on the lack of a holistic approach to the development of the entire Weeroona land holding, the built form outcomes, the access and parking arrangements that will impact on residential amenity, the location of the service area to the front of the site, and the amenity of the future residents on site. All grounds are challenged by the Applicant.
4. Having considered all submissions and evidence presented, as well as the statements of grounds filed by Respondent Objectors, and having undertaken a comprehensive site inspection, we have decided to affirm the Council's decision. Our reasons follow. In setting out our reasons, we do not recite all of the material tendered by the parties and given in evidence as all documents are retained on the Tribunal's file.

What is the planning context for the assessment of this proposal?

1. The planning context set by the Planning Scheme is an important consideration in the Tribunal's determination of this proceeding. The key themes as relevant to this proceeding can be briefly summarised.
2. As is the case with all Planning Schemes, the local policies explain the current situation in this municipality as a basis for understanding how the Council and its community wish it to develop in the future.
3. Housing needs are acknowledged in the Stonnington Planning Scheme including the need to encourage a variety of dwelling types[3], although the specific needs of the growing number of older persons referred to by Dr Howe are not, we find, dealt with in any specific manner by the Local Planning Policy Framework. The housing policies target specific locations for medium density housing, including identified arterial roads and sites. This is part of an overall strategy that seeks to temper medium density development in other locations in order to achieve heritage and character objectives. The Scheme gives particular emphasis to the protection of residential character and amenity in established residential areas[4]. There is, similarly, an emphasis on quality and respectful design in responding to an area's character including the scale, height, bulk, setbacks, style and form of a proposal. There are other important considerations in the Planning Scheme with respect to the potential impacts on the amenity of nearby private dwellings and traffic and parking impacts that must be assessed[5].
4. While recognising these themes, that are consistent with State policy, the purpose of the Residential 1 Zone and Clause 55, it is important to appreciate in addition that uses such as aged care facilities must take into account the characteristics of the host population, for example, mobility limitations, as well as staffing arrangements. If more than ground level accommodation is considered, lifts are needed. Providing lifts adds cost, so several levels of development may be desired, particularly on confined sites. The ability to obtain sites large enough to achieve the necessary economies of scale cannot be underestimated, particularly in established areas such as East Malvern. The application of built form policies[6] to achieve scale, character and landscape outcomes that respond to the domestic setting must also bear in mind these practical/logistical matters.
5. Both the current usage of the site, and the proposal, may be regarded as being institutional in nature. However, they are focused on the housing and care of a discrete need group. The policies within the Scheme relating to institutional land uses (notably Clause 22.16) do not expressly apply to Weeroona. There is no Incorporated Plan Overlay or other statutory trigger with respect to master-planning. The key issues and objectives in Clause 21.05-4 reflect general principles insofar as acknowledging the importance of such facilities locally and sometimes regionally as well as seeking to ensure they operate and develop in a manner that minimises detriment to local amenity. The local policy relating to discretionary uses in residential zones (Clause 22.07) may arguably apply. However, the policy reflects the same themes as other local policies to which we must, and have had, regard.
6. We note that the parties proceeded on the basis the building has a maximum of three storeys, so that Clause 55 applies. That there is a small section where the building is four storeys wherein Clause 19.03 would apply instead. Mr Bisset said this is not critical. We agree the discrepancy is not determinative insofar as our conclusions would be the same regardless of whether an assessment occurred under Clause 19.03 or 55.
7. Decisions about planning permits involve weighing the positive and negative outcomes or impacts of a proposal in the context of various objectives that might be regarded as competing with one another[7]:

The State Planning Policy Framework seeks to ensure that the objectives of planning in Victoria ... are fostered through appropriate land use and development planning policies and practices which integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development.

1. The Scheme therefore requires us to balance all of the factors as relevant to this permit application and decide in the interests of net community benefit and sustainable development. That different parties place different weight on different planning objectives is clearly demonstrated by their submissions in this case. Need is very relevant in this case but, as Mr Bisset fairly acknowledged, does not over-ride all other matters. Having balanced all considerations, we find an intensive built form outcome is acceptable. As often occurs in these types of proceedings, the key, and ultimately determinative, issues focus on the proposal's layout and sensitivity to its immediate environs.

Is an expansion and intensification of aged persons' accommodation acceptable in principle?

1. The site is currently used for aged care and retirement/independent living units. The proposal will continue that use, albeit at in a more intensive level. While the Council's grounds did not seek to oppose an expansion of the facility in principle, a number of Respondent Objectors questioned the need for the amount of accommodation proposed in this location. Evidence in reply was given by Dr Howe for the Applicant.
2. We consider the further use and development of the review site for aged persons' accommodation is acceptable given the existing use of the land and mindful of the expanding community of older persons in Stonnington. We accept there are other facilities in the area, including a 30 bed nursing home on the corner of Waverley Road and Nirvana Avenue, and new facilities planned or approved in the wider area. However we also accept Dr Howe's evidence of a rapidly expanding local need that is difficult to accommodate in East Malvern and nearby suburbs even with existing approvals or expected developments. Need is significant for the type of facilities proposed.
3. The size of the proposed facility is not unusual given current arrangements for bed licenses and funding. Importantly, the development would maintain the ability for ageing in place. Moreover, as referred to above, there is a distinct difficulty in obtaining suitable sites in established residential areas where residents can stay in familiar surroundings near to family, friends, doctors and other services.
4. The proposal extends the physical boundaries of the land used directly for aged persons' accommodation by adding the land at No. 72 Serrell Street into the development. That concerns some residents, notably Mr Zendarski at No. 70 Serrell Street, as we discuss later. This type of expansion can potentially be an issue but does not thereby create an obligation for a master-plan. We have assessed the proposal based on the inclusion of No. 72 as part of the site and it is off-site amenity impacts that are most crucial to a decision as to whether this aspect of the proposal is acceptable.

Should the proposal be rejected because there is no master-plan?

1. It may be clear already that we are not persuaded to reject the proposal because of the lack of a master plan for the development of the Weeroona site as a whole or because of the awkward lot configuration allowed by the earlier subdivision permit. The Council and some Respondent Objectors pursued this argument on the basis that the proposal is the first stage of the redevelopment of the site as a whole. Mr Bisset agreed that there would be further redevelopment of the Weeroona land given contractual arrangements between Regis and the Zig Inge Groups to which he referred.
2. While acknowledging there is no requirement for a master-plan, Mr Klarica submitted that the preparation of a master-plan is an appropriate step to ensure the future development of the Weeroona land does not occur in an ad hoc manner and is co-ordinated to provide certainty to both the permit applicant and community. We agree that a master-plan would be a good idea and, on one view, that might be encouraged by the Scheme, even though the local policy at Clause 22.16 does not apply. We are not, however, aware whether the land owner and others with an interest in the site are currently in a position to make a long term commitment with respect to the future development of the entire Weeroona site. Another approach, if the site's overall development is contemplated and prospective land owners can agree, is a Scheme amendment to introduce, for example, an Incorporated Plan Overlay. That may provide the Applicant, and community, greater certainty. The amendment process may take more time in the initial stages but it ultimately may save time and delays over the longer term.
3. Despite these remarks, it remains most relevant to our findings on this question that there is no obligation within the Scheme for a master-plan. Moreover, we accept the submission by Mr Bisset that the proposal is able to be assessed on its merits and some operational matters can potentially be addressed by permit conditions.

Are the design and form of the proposed development acceptable?

1. Mr Bisset submitted that the proposal involves an extension to the existing facilities on-site in a manner that enables the more efficient use of the land, in a design that accords with stringent Commonwealth standards and functional requirements, minimises disruption to existing residents, without unreasonable impact upon the streetscape and neighbourhood character. Mr Bisset relied on the evidence of Mr McGurn that the design is modulated and well articulated, with good setbacks from all boundaries and opportunities for meaningful landscaping. Mr McGurn referred to the various policies such as Clause 22.02 and 22.07 to which he said the proposal appropriately responds, mindful that two storeys are not limited by the policy that contemplates higher forms in specified circumstances. Noting some detailed design changes recommended by Mr McGurn to the front setback of the site, Mr Bisset said the location of the loading and service area adjacent to the reception had been carefully considered to avoid off-site impacts and would be an acceptable outcome with the roller door not being dissimilar in size to a double car garage. Further, Mr Bisset submitted the proposal would not adversely affect the heritage values within HO358 that applies to land abutting the eastern site boundary (Nirvana Avenue properties and a wider area to the east) noting the Council officer's assessment reached the same conclusion on that particular issue.
2. The Applicant's submissions were made in response to criticisms of the design by the Council and Respondent Objectors that the buildings cover too much of the site, are too high, and do not provide a suitable transition to abutting dwellings. They criticised the visibility of the upper storey/ies from the street and abutting dwellings, the location of a car park deep into the backyard setting, and the position of the service bay fronting Sewell Street. There were submissions that servicing should be from Waverley Road. Mr Klarica and Objectors submitted the subdivision has severely constrained the development and as a consequence too much is proposed on the land that sits in a residential context of mainly single storey buildings.
3. In considering these and related submissions, we start by referring to the site's physical context. The site benefits from its abuttal to the balance of the Weeroona aged care facility, but the context is wholly residential with an address to a local street. Larger structures are to the north, insofar as there is a three storey building that has been used for retirement units as part of Weeroona on the south-east corner of Serrell Street & Waverley Road. The 1990's single level nursing home on the review site is to be retained with the new three level building attached to its south and a further single storey extension to the east. Serrell Street contains a double storey contemporary reproduction style dwelling at No. 70 and a vacant block at No. 68 with approval for a double storey dwelling. Otherwise it features detached houses and several units. Many are single storey or have additions to their rear. The area has an open feel assisted by wide street reserve & nature strips, street trees and landscaping on private lots.
4. The setting is also heavily influenced by the site's configuration that results in backyards surrounding much of the land to the east and south. There is existing fairly dense planting along the common boundary shared with Nirvana Avenue properties, although it is patchy in parts. There are obvious level differences as the land slopes eastwards and it is important to recognise that a critical design parameter is the Special Building Overlay affecting the rear southern part of the site. The interface between the Weeroona complex and abutting residential properties is low key at present given the existing single storey retirement units with mainly large setbacks from boundaries, the location of an internal access road, limited parking to this southern part of the site, and the fact that plantings on the review site (mentioned above) are supplemented by mature vegetation on a number of abutting properties particularly in Nirvana Avenue.
5. In considering how the proposal responds to this setting in light of policy directives, it must first be said that the notion of a three storey development is acceptable in principle. The site's size and the landfall clearly give this opportunity. For two and three storey forms, the critical questions are how the proposed development would appear within the Serrell Street streetscape and how it would relate to the backyards of private dwellings abutting the site.
6. In narrowing our consideration in this way, we have concluded the following:
   • built form above two storeys is potentially possible given the sizeable area of land and the policies that contemplate such a possibility, albeit in a qualified way. The policy riders relate to abuttals to heritage places (which we refer to next), the setting back of parts of a building above two storeys from the street, design and amenity outcomes (all of which we discuss below) and the building is used for residential purposes (which can be said to be so).
   • the heritage values of HO358 would not be adversely affected by the proposal albeit parts of the proposed development would be seen in views from Nirvana Avenue, such as along driveways.
7. The layout of the proposed development adopts a three (and small four) storey component to the larger breadth of the site, to the north, and a two storey form to the south. The two storey form comprises a car park with "House 4" above. A driveway is proposed along the southern boundary, adjacent to No. 70 Serrell Street, providing access to the rear carpark that has been designed to accommodate flooding and drainage requirements. There is no car park below the three (four) level form. The front façade is two storeys, except for the southern corner (laundry) that is single storey. A third level is setback by around 2.4 metres from the lower levels. The building is setback by 9.8 - 13.5 metres from the street frontage at ground level to provide for a one-way driveway including a porte-cochere to the entrance. A service bay and laundry are at the southern end of this part of the ground level.
8. We find that, overall, the notion of a higher built form to the north of the site and a lower element to the rear is acceptable. We also find the design has adopted an acceptable built form graduation from the large dwelling at No. 70 Serrell Street. This is achieved by the wide driveway separation of nearly 11 metres inclusive of a generous 3.3 metre wide landscape bed along this part of the southern boundary. It is further aided by the single storey element to the south-west corner (laundry) and the landscape bed that widens at the street frontage in an attempt to reduce the "gun-barrel" effect. The three level form would be read along this driveway from the street but, at the setback proposed from the site's edge and the scope for landscaping, the outcome is reasonable for this type of building.
9. We find that the deep front setback of the building would mitigate the prominence of the three storey built form to the street even though the third storey would be plainly visible. The form would sit back a little further into its site than the existing three level Weeroona building north of the review site. There has been a successful approach to keep the height at a reasonable level by the use of a low profiled roof. The use of a wide eave and varied front façade (in terms of built elements and materials) assist to avoid a box-like form. Thus, even though three levels would be an obvious step-up from the many single storey dwellings opposite and further south along Serrell Street, we do not consider the proposal should fail for this reason primarily because of the building's articulation, street setback and is reasonable relationship in built form terms with No. 70 Serrell Street.
10. Mr Klarica was critical of the interface of the three storey building with the single level nursing home that exists at present. We agree some refinements can be made, such as the very northern edge that sits forward of the southern wall of the abutting building. This is fairly minor, however, when compared with our concerns with the service area and loading bay.
11. The Council and residents fronting Serrell Street were highly critical of the siting of the loading and service area. This had been raised by Council officers at an early stage. We have several concerns with this aspect of the proposal in design terms. We find this to be a poor streetscape response, and a response that is at odds with the policy at Clause 22.02. The loading and service area, plus a stairwell, extend across more than half of the front façade with a dominant presentation to the street. The various fences in the frontage are not sufficient to mask the activity of the service bay and instead reduce the potential for passive surveillance and good interaction with the street to which the Applicant's witness referred. The presence of parking, servicing and related functions along the frontage is exacerbated by the multiple crossovers and 6 metre wide driveway. Although we accept that management would have an interest in keeping the area clean, tidy and safe, and we are mindful of the number of deliveries to which Mrs Partenio referred, we find this is unacceptable for a new building. The other issues arising from the loading/delivery area are noise and related amenity impacts for nearby residents, and, possibly of lesser influence, the potential for conflict through the porte-cochere. We return to these matters below.
12. To the rear of the site, there has been an effort in the design to setback the building from backyards and to retain existing planting to reduce the immediate impact of the development. There is, however, no doubt that some of the existing vegetation along the southern boundary does not have a long life and a phasing-in of new landscaping would be important.
13. We do not consider the notion of a substantial double storey element in this backyard environment is unacceptable for the proposed use; it is not an outcome we might endorse for another form of residential use. In reaching this conclusion, we have given weight to the physical requirements associated with this type of use, the need, and the fact that the occupation and operation of the facility is very different from conventional apartments.
14. The main concerns we have with the southern built form are the undercroft parking area and, to a lesser extent, the three-four level element being the east end of the east wing of "House 3" and "House 5" as discussed next. First, the parking area is located in the most sensitive part of the site and although it has landscape setback areas and a floor level above, it has open sides to provide for storm-water/floodway requirements. The result is a real potential for noise intrusion into a quiet residential setting. For a significantly lesser number of cars, we might have less concern, as might also be the case for a car park that would not expect a large number of concentrated movements associated with staff shifts. Second, the highest element is set into the site but most exposed to the properties at Nos. 51 and 55 Nirvana Avenue[8]. The former has a two storey dwelling with habitable rooms facing west. The three storey form would be setback 10 metres and the fourth level some 18 metres. There are no sightline diagrams but, in our assessment, the building bulk would be apparent mindful of deciduous trees on the abutting lots. Setting back the east wing of "House 3" and "House 5" could further assist.
15. We do not consider the layout would unduly compromise opportunities to redevelop the balance of the Weeroona land holding, although there were no submissions that it would. We note concerns that an intensive development on this most sensitive part of the site would raise the prospect of even higher and/or denser proposals for Lot 2 on the 2007 subdivision but make no findings on that point. There is little information before us as to what might be contemplated in scale or intensity in that area.
16. In summary, we find many aspects of the design to have been carefully considered and acceptable, but we have fundamental concerns with respect to the provision of access, parking and loading. The problems we identify are all inter-related. A different approach to parking and loading, with internalised facilities in a true basement, would go most of the way to alleviating significant issues that arise with respect to the locations proposed for undercroft parking, waste collection, deliveries and loading. We consider several options are available to redress these concerns.

Would there be unreasonable direct amenity impacts on abutting sites?

1. The main issues relating to immediate impacts on neighbours were visual bulk, overshadowing, overlooking, noise and headlight glare.
2. Above, we have referred to visual bulk with respect to character issues. We have taken into account the fact that the proposal clearly meets and exceeds the standards of Clause 55 in relation to side and rear setbacks and overshadowing. The notion of two storey elements in the southern portion of the site is acceptable in principle, if sufficiently setback from site boundaries and well articulated but the undercroft parking is of specific concern to the Tribunal.
3. Our concerns about noise relate to first, noise from the car park that abuts multiple backyards and second, the habitable rooms in No. 70 Serrell Street that are adjacent to the driveway and would also be exposed to the car park[9]. There is an existing 2.4 metre high fence around No. 70 Serrell Street but the dwelling's floor level is raised around one metre as a result of the slope and possibly the Special Building Overlay. We have considered Mr' Burton's evidence with respect to compliance with SEPP N-1 and accept that should be possible. Our greater concerns are the impacts associated with vehicle movement along the driveway and noise from the open-sided car park when there might be activity at staff turnover times (say 10pm/11pm and 6.30/7am). Having regard to the number of staff (maximum 31 at any one time but less at night) and the focus of activity along the driveway and within the car park we have serious concerns about the impact on residential amenity with this facility in its proposed location. Mr Burton's evidence was that sleep arousal criteria may be met although we note noise levels on that criterion are much higher than SEPP N-1 would permit (however different assessment and measurement techniques apply).
4. Despite that, we do not accept that the outcome of this arrangement for vehicle parking is acceptable. The question of reasonable amenity expectations was raised and, for the Zendarski family, this type and intensity of activity along their side and rear boundaries is not reasonable given No. 72 has most recently been used as a dwelling and that dwelling currently buffers No. 70 from activity associated with the nursing home. We appreciate that currently there is an internal access road abutting existing dwellings to the rear as well as car spaces. We counted around 10 formal spaces that appeared to be associated with retirement units and were contained within two old carports (one behind No. 57 Nirvana Avenue and another behind No. 66A Serrell Street). There may have been room for parking on paved areas as well. Some carport spaces now seem to be used by staff as the retirement units are unoccupied. It is reasonable to assume that the resident spaces would have had a low level of usage, mainly daytime. The change associated with the proposal with respect to on-site parking is not, therefore, a minor one.
5. Added to this, in the case of No. 70 Serrell Street in particular, is noise associated with the delivery bay. Mr Burton's recommendations were for various conditions to limit the use of the bay if it is to be acceptable from an acoustic perspective including refrigerated vans/motors on trucks being turned off and no deliveries past 10pm or before 7am (Monday to Saturday) or 9am (Sunday). Residents referred to examples of late night/early morning deliveries including complaints they said they had made. The limitations on hours would be restrictive (albeit we note Mr Bisset's commitment by his client to work with those restrictions) and we also note Mrs Partenio's evidence that the loading bay would not be suitable to handle more activity if that was contemplated in any larger re-development.
6. Overlooking was identified as a concern by some parties including from rooms and a balcony associated with "House 4". As we have said in other cases, we have considerable difficulty with the notion that extensive screening is required to windows where there are reasonable separation distances from private open spaces and habitable windows and having regard to the nature of the occupation. The residents will require a significant level of care and this will be their home. Some will spend a considerable amount of time in their rooms and the prospect of extensive screening will not enhance their amenity. Some will have poor sight and and/or impaired cognitive abilities. Staff and visitors might look out from windows or the communal balcony but we do not consider that demands an over zealous approach to screening; overlooking should not be treated in an identical manner as that required for standard housing forms. We would accept the Applicant's suggestions as to the specific design of any screen to allow outward views but prevent downward views via conditions.
7. Headlight glare is a potential issue for dwellings opposite the driveway given expected movement of vehicles from the car park at time when headlights would be required to be used. The Marshall property would be most exposed with its front master bedroom and lack of any dense planting in the dwelling setback to assist to visually screen such an effect. Relocating the driveway and access would give the opportunity to potentially redress this matter mindful that there are some dwellings further north, opposite the site, with higher fencing and/or dense planting.
8. Several residents were concerned that their children may see the arrival and departure of hearses to and from the front of the facility. We do not share this concern as, in our experience, the timing and manner of such visits are sensitively handled by management.

Is traffic generation associated with the development acceptable?

1. The Council and Respondent Objectors referred to increased traffic that would be expected with the proposal and impacts on the safety and amenity of the area. Residents of Serrell Street sought for access to be focused onto Waverly Road and contested the suitability of access and parking extending southwards into Serrell Street.
2. Evidence in reply was presented by Mrs Partenio for the Applicant.
3. The existing uses have, or did in the past when fully occupied, brought traffic into the local street network. The proposal would add to vehicle traffic most notably in Serrell Street. We recognise that is a local road and movement along it can be constrained by parking on both sides. Despite that, we accept the evidence of Mrs Partenio and the assessment by the Council's officers that the amount of traffic projected to arise from the development can be accommodated within the carrying capacity of the local road network. We have not been persuaded of any specific circumstances that indicate a particular road safety or capacity or issue that warrant refusal of the proposal. Noise is part of vehicle usage and again no specific circumstances were identified by any party that provide us with any fair basis to reject the permit application as residents had requested.

1. A reduction in parking is required from the rate required for a residential building under Clause 52.06 of the Stonnington Planning Scheme. A total of 39 spaces is proposed to service staff, visitors and others who might require parking such as visiting specialists and service persons (eg. hairdresser and physiotherapist). All but two of these spaces would be within the rear car park, with two at the front of the site.
2. The Council has accepted the rate at which parking is provided, around 0.3 spaces per bed. Respondent Objectors have not accepted this rate is reasonable having regard to visitors (including possible increased visitation in situations involving residents in palliative care), others attending such as doctors, and the prospect of increased on-street parking.
3. The reality of low and high care aged accommodation is that a very few if any residents might drive and there are not continuous and large quantities of visitors. We accept the extensive data from many surveyed facilities presented in Mrs Partenio's evidence as demonstrative of this point and it is consistent with our experience. The proposal provides sufficient on-site parking to accommodate the expected demands and, although that does not mean people will not park in Serrell Street, the outcome is acceptable. The turning arrangements for vehicles departing the loading area could mean a minor loss of on-street parking. That may be less convenient for some existing residents but it is not a matter that causes the proposal to fail.

Is an acceptable level of amenity achieved for proposed residents?

1. The Responsible Authority and some Respondent Objectors criticised aspects of the design and layout with respect to the level of amenity and facilities available for occupants of the development. The key issues related to a lack of useable outdoor space and poor outlook from some rooms.
2. The occupants of the proposed facility would be dependent. Often they would not be mobile and often they would be very frail or bedridden. Many might have poor eye sight and hearing. The proposed rooms are not self-contained and are not designed for independent living for retirees. As Dr Howe said, the residents would not be able to, or wish to, pursue many activities such as gardening and, for those who might retain an interest and ability to conduct active pursuits, modest spaces could be made available on the site. The proposed rooms are suitable for the intended occcupants, as are the terrace spaces and grounds. We find no basis to require changes to the proposal to address concerns raised by the parties in this respect.

1. As noted, the southern portion of the site is within a Special Building Overlay. The site's complexities with respect to flooding and drainage have been the subject of ongoing discussion between the Applicant and Council based on submissions presented at the hearing. We understand that the floodplain authority, the Council, accepts the proposal with the car park floor level at 41.32AHD. There were no submissions challenging the proposal with respect to the potential for flooding.

1. We have endeavoured to explain that many aspects of the proposal are acceptable and some grounds relied upon by the Council and Respondent Objectors cannot be sustained. Examples of these grounds are overlooking, impacts in traffic and parking in the immediate and wider area, and "in principle" concerns about a building that is more than two levels in its form. However, we have fundamental concerns with the proposal's layout with respect to access, parking and servicing arrangements. Should these concerns, which in our view demonstrate clear non-compliance with the outcomes sought by the Scheme, be overridden by what we also regard as an unarguable need for facilities of this type, in this location, in a context where there are few precious opportunities? We find that they do.
2. This is not a decision we reach lightly, mindful of the pressing need referred to by Dr Howe and with which we are familiar in our own lives. However, in reaching our conclusion, we have been influenced by the fact that our key concerns with the proposal relate to the part of the site to be fully redeveloped wherein we consider there is scope to internalise parking and much loading activity, improving the streetscape outcome and minimising potential impacts on the amenity of neighbours. We appreciate that is likely to add to cost and the denial of a permit will produce delays. Conversely, less area for driveways on site may enable a higher yield. We also note that these core issues are not however new - they were clearly identified in the permit application process through Council.
3. For these reasons, we will affirm the decision made by the Responsible Authority and direct no permit be issued.

[1] There is a small section where the building is four storeys but all parties proceeded on the basis that Clause 55 applies.

[2] A review against failure is a deemed refusal under Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998.

[4] Clause 21.03, Clause 22.02, Clause 22.06.

[5] Clause 21.03, Clause 22.02, Clause 22.06, Clause 22.12, Clause 22.13.

[6] Such as Clauses 22.02, 22.06 and 22.07.

[9] Given No. 70 Serrell Street shares two of its boundaries with the review site.