1. The subject land is within the MUZ where a higher intensity of development is expected compared with the land at No. 38 Charles Street and other residential properties within the NRZ. Cl 32.04 provides direction with respect to the application of cl 55:

32.04-9 Buildings on lots that abut another residential zone

Any buildings or works constructed on a lot that abuts land which is in a General Residential Zone, Residential Growth Zone, Neighbourhood Residential Zone or Township Zone must meet the requirements of Clauses 55.04-1, 55.04-2, 55.04-3, 55.04-5 and 55.04-6 along that boundary.

1. These clauses address side and rear setbacks, walls on boundaries, daylight to existing windows, overlooking and overshadowing. The parties have referred to this provision, notwithstanding the proposal is for a residential building of more than five storeys.
2. Clauses 21.04 and 21.06-3 acknowledge potential residential interface issues with increased intensification of development and residential development in and besides activity centres. The scheme seeks to ensure a high level of amenity for incoming and existing residents. It is a non-contentious planning principle that the assessment of impacts on residential amenity in the context of the MUZ is not the same as a residential area where, for example, the NRZ applies. That point is made in Karastarou to which the parties refer.[57] That is not to suggest that amenity impacts are not important, as the MUZ and NRZ are both in the suite of VPP residential zones. The weight to be given to impacts must be analysed within the framework of the MUZ as well as local policy and the level of change policy is encouraging in this location.

1. The key issues arising with respect to impacts on abutting land relate to visual bulk and overshadowing, particularly to the three dwellings in a converted warehouse at No. 38 Charles Street.[58]
2. No. 38 Charles Street is within the NRZ and is developed with three separate warehouse conversion dwellings. We inspected one of these dwellings and the plans show the layout of this adjacent development. The 3.05 metre wide bluestone pitcher lane separates the dwellings from the subject land. The existing condition comprises openings in the high brick wall that abuts the lane.
3. The decision in Harick [sic] to which we have been referred includes a description of the dwellings at No. 38 Charles Street in an earlier Tribunal decision addressing a proposed development at No. 42 Charles Street:

....The dwellings at 1/38 and 2/38 Charles Street have been designed with a northern orientation. Habitable room windows and openings to private terraces at the upper floor level have been punched into the northern wall of the building to allow light penetration, views and an open ambience. Aside from some narrow windows in the western wall, extensive glazing to its terrace provides the primary light source for the dining and living areas, the kitchen and bedrooms 2 and 3 of Dwelling 1. Glazing to its terrace provides the only light source for the dining/living area, the kitchen and bedrooms 2 and 3 of Dwelling 2. .....

The ridgeline of the existing building on the subject land is approximately at eye level for persons standing on the terraces of these dwellings. The southern wall of the existing building is well below eye level. There are views of the sky above the wall to the saw tooth roof of the building to the north of the subject site and a more open vista to the northwest above the roof of the existing building on the subject site.[59]

1. There is already an obvious presence associated with the existing buildings on the subject land as seen from the dwellings to the south. The proposal involves a widened laneway to 7.4 - 8.2 metres which provides greater separation between new development and the north-facing windows and terraces in the dwellings. We accept that, if applied to the five level wing, the proposal complies with some numerical standards referred to in the clauses cited in clause 32.04. It does not comply with Standard B17 - as measured from ground level - and additional overshadowing is caused to the modestly sized terraces at 9am based on Ms Heggen's evidence. We note that the B17 envelope is shown on the plans at first floor level because of the use of the lower level of the building at No. 38 Charles Street for garaging, entries and rooms without north-facing habitable room windows.
2. We consider the impact on the dwellings at No. 38 Charles Street is not acceptable with the most-impacted being the central dwelling. The rear dwelling would be less impacted because of the design of its terrace and window positioning while the front unit has the benefit of windows facing west.
3. These dwellings would be exposed to the five storey form, albeit over a widened lane. The three lower levels achieve an acceptable interface whereas the impacts particularly arise from the positioning of levels 4 and 5. These levels are not sufficiently setback to mitigate their bulk. While less apparent from within the dwellings, the eight level building at the end of the lane, which provides the entry to the two rear units, is also reasonably imposing.
4. The additional overshadowing is a further indicator of the manner in which the upper levels of the development have not adequately responded to the specific circumstances of the dwellings to the south within the NRZ.
5. We accept expert evidence for the applicant that additional screening may be possible to limit overlooking, this being discussed by Ms Heggen.

1. While not the subject of any specific submissions by Mr Walker at the hearing, it is self-evident that the proposal will alter the outlook from other dwellings. A different proposal or fresh approach that involves a strong street wall before stepping up to an upper level/s would reduce the impact on dwellings in the MUZ and NRZ.

1. The design relies on the widened laneway to provide access to the basement and a ground level loading bay.

1. Given that few vehicles use the laneway today, it is obvious that the proposal will give rise to more traffic and more noise for abutting residents. We appreciate that this would represent a significant change compared with the existing condition and its impact should not be dismissed.
2. Use of the lane for vehicle access and loading is the best outcome in heritage, character and urban design terms. It accords with policies in the scheme and, for these reasons, we do not consider noise intrusion should provide a reason to refuse a permit. It would be appropriate to include conditions on any permit to limit noise associated with loading, deliveries and waste collection for amenity reasons. Resurfacing the lane is proposed and we understand that a different road surface would be used, potentially being less noisy than the existing pitchers. We add that a development of a lesser scale, with lesser parking, would have a lesser impact.

1. Mr Walker's clients are concerned about pedestrian safety for the rear two dwellings in No. 38 Charles Street as their entry door is located immediately onto the laneway. Mr Walker submits the proposal will vastly increase vehicle use of a laneway. The design provides two bollards and, he submits, this is inadequate to address pedestrian safety. He agrees with the Council that a 1.2 metre wide pedestrian path is necessary. Mr Peake submits this will require the building to be setback further from the western boundary.
2. Mr Walsh has explained in his evidence that the widened laneway allows for two-way vehicle movement as well as the opportunity for a 1.2 metre wide pathway. He suggests that this pathway could be demarcated by bollards and/or varied paving and his evidence is that it does not require the proposed building to be setback further from the building at No. 38 Charles Street.
3. We accept Mr Walsh's evidence on this matter. We consider appropriate measures can be implemented to protect the residents of No. 38 Charles Street and highlight to users of the laneway for the need for care. We prefer physical measures, such as bollards, to achieve this outcome. We do not accept Mr Brennan's submission that there should be no bollards for ease of maintenance.

1. Cl 52.07 sets out the requirements for a loading bay. The proposal does not meet the dimensions and therefore a permit is necessary to vary the requirement.
2. Mr Walsh has explained the operation of the loading bay including addressing concerns about its length and the manner in which it would operate having regard to traffic movement as well. We accept his evidence that the space provided is acceptable having regard to the physical protection afforded by the building itself.

OTHER MATTERS IDENTIFIED IN SUBMISSIONS, GROUNDS AND EVIDENCE

Status of the north-south length of a laneway

1. The status of this laneway, and potential implications for its future management, were the subject of discussions between the responsible authority and the permit applicant. By the completion of the hearing, they had agreed permit conditions to deal with this matter. If we had been minded to grant a permit, we feel this matter could have been addressed by a suitable permit conditions.

1. Mr Walker submits that an excess in parking supply is unnecessary and unacceptable given the stated likely occupation of the aged care facility, access to public transport and raises questions about the nature of the independent living units.
2. Under clause 52.06, the amount of parking required for the proposal is 87 spaces based on Mr Walsh's evidence. This assumes the 33 independent living units are allocated parking at clause 52.06 rates for dwellings, including visitors. A total of 97 spaces is proposed with 14 spaces allocated for staff.
3. No permit is required for a reduction in parking and no permit is required for providing more than the required amount. An excess of 10 spaces is not necessarily significant but the location is one where the use of public transport and other means of transport is strongly encouraged.

1. No party has taken issue with the reduction of one bicycle space although we see no reason why the required amount should not be provided in a location such as this. This is not a major issue in our final determination, as we expect space could be found to accommodate one additional bike bay and/or a reduction granted of one space.

1. Clause 21.04 refers to the provision of acoustic attenuation for residential development in (inter alia) MUZs. We raised this matter at the hearing noting the number of bedrooms facing the railway.
2. Possibly this could be addressed by a permit condition but it also raises broader questions about the design response in terms of internal amenity when having regard to Ms Heggen's opinion with respect to dwellings facing the railway and the need for setbacks along this edge.

1. Over the course of the hearing, other detailed design elements were questioned such as the lack of private open space for the independent living units, shadowing of the internal courtyard, and the amenity of the staff room.

1. We do not address these in detail but observe that we expect the facility to be designed in accordance with Commonwealth standards. Given the independent living units are to be rented without the same requirements as the aged care beds, and have been advanced on the basis of (for example) standard parking provision, we query the absence of private open space.

1. Lifeview Marigold is an excellent initiative with the aim of allowing people who identify as LGBTI and friends of the LGTBI community to reside in an aged care facility where they can express their sexuality without fear of discrimination or abuse.
2. There are many good reasons why the proposed use is appropriate, and desirable, on the subject land. It is self-evident the subject land is a large site, and very well located with respect to residential areas, public transport and activity centre access. It is the type of location encouraged by the scheme for this type of use. We do not under-estimate the difficulty in finding sites of this size that can accommodate a residential aged care facility in an inner-city location. Further, as we have recognised, Chapel Street and its neighbouring suburbs have strong ties with the LGBTI community.
3. Throughout these reasons, we have explained the strategic context that must guide our consideration of this permit application. It is not the Tribunal's role to recraft the scheme's provisions. Nor should we interpret scheme in a way that could undermine important outcomes being pursued. The subject land is not within the Chapel Street Activity Centre and has been identified by the planning scheme as a minimal change area but it is a strategic opportunity and there is clearly scope for its intensive development.
4. We have not been persuaded that strategic opportunity supports a building with the degree of impact this development would have. That is particularly in its response to the heritage precinct, the dwellings at No. 38 Charles Street, and its overall composition and massing in heritage, character and design terms. And, as much as we give weight to our findings that the proposed use is appropriately located and is a very worthwhile initiative, we have not been persuaded that the community benefits associated with the proposed land use outweigh the negative impacts the proposal would make, thereby resulting in an unacceptable development outcome.
5. We envisage that a residential aged care facility could be developed on the subject land in a revised proposal. We have considered whether it is possible to craft permit conditions to do so. However, significant redesign would be required to achieve an acceptable outcome and further public notification would also need to occur. With these considerations in mind, a fresh permit application is required, should the proponent seek to pursue a residential aged care facility. We add that there are some potential questions with respect to the public components of the development that would require consideration should they be formally proposed, including whether they are separate land uses for which permission may be required.

1. For the above reasons, we will affirm the responsible authority's decision.

[1] This takes account of amendments to the planning scheme including VC110 and VC134.

[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons. At the commencement of the hearing, Member Nervegna declared that she was a member of the independent panel that considered submissions with respect to Amendment C172 to the Stonnington Planning Scheme. No submissions or issues were raised by any party with respect to that declaration. Amendment VC110 was gazetted after the hearing and, on 27 March 2017, we issued an order inviting submissions about the effect of the Amendment. We have considered those submissions and none warrant the hearing being reconvened.

[3] Lesbian, Gay, Bisexual, Transgender and Intersex community.

[4] Australian Government 2012 National Lesbian, Gay, Bisexual, Transgender and Intersex Ageing and Aged Care Strategy.

[5] Bed places have been allocated by the Australian Government for this purpose (120 beds) with an additional 12 beds not specifically for people identifying as LGBTI. Additionally, another 12 beds have been transferred to the subject land by Lifeview with Australian Government approval. Lifeview has achieved Rainbow Tick accreditation. The 33 independent living units would be rented with private support arrangements or support available through the balance of the facility.

[6] For which a Notice of Decision has been issued by the Council.

[7] MECWA's Sir Donald and Lady Trescowthick Centre.

[8] There have been several Tribunal decisions relating to this land, the first approving a seven storey building (reduced from nine storeys) in 2009 and a later request to amend the permit to allow a part-eight level that was refused. Refer Ashwerth Pty Ltd v Stonnington CC [2009] VCAT 2769 and Ashwerth Pty Ltd v Stonnington CC [2012] VCAT 541.

[9] Draft heritage guidelines prepared by Mr Trethowan's office dated 15 May 2016 as advice to the client refer to the sawtooth building in the south-east part of the land as being C graded although the Council's internal referral cites only three graded buildings. That advice also refers to features on the land that are ungraded, being three sets of gate pillars.

[10] All parties referred to the statement of significance as relevant under clauses 21.06, 22.04 & 43.01.

[11] We did not invite further submissions with respect to Amendment VC134 as the scheme changes align with the submissions and evidence. We have given weight to the added emphasis in Plan Melbourne 2017-2030 and clause 11 on the role of railway stations and activity centres.

[12] Clauses 16.01, 16.02-3, 16.02-3, 16.02-4 and 21.05-5.

[16] Clauses 15, 21.03, 21.05, 21.06, 22.23 and the Design Guidelines for Higher Density Residential Development (Department of Sustainability and Environment, 2004) that must be considered in assessing the design and built form of residential development of five or more storeys. These Design Guidelines also relevant through the decision guidelines of clause 32.04-13.

[19] Such as clauses 15, 21.03, 21.06, 22.14.

1. [23] Framework Plan at cl 21.03. Cls 22.19 and DDO7 previously applied to the Prahran/South Yarra Principal Activity Centre and expired in 2015.

[24] Consistent with some findings in Roman Catholic Trust Corporation v Stonnington CC [2014] VCAT 380, [52] and [55] citing the Planning Panel for Stonnington Planning Scheme Amendment C161, Pages 34-35.

[25] Reflecting the purpose of clause 43.01 (Heritage Overlay).

[26] Section 84B(2)(g) of the Planning and Environment Act 1987.

[27] Relying on Jobs Australia Pty Ltd v Melbourne CC [2015] VCAT 1525, [33] - [35].

[31] Various divisions of the Tribunal have made findings consistent with this point related to, for example, the Jewish community who are geographically concentrated.

[32] Shell Company of Australia Pty Ltd and Ors v City of Frankston and Anor 8 APAD 127 at 135.

[34] The Stonnington City Council's Aged Services expressly supports the LGBTI community, as Ms Brennan noted from the Council's website. This service is accredited under Rainbow Tick.

[35] These include people from culturally and linguistically diverse backgrounds, Aboriginal and Torres Strait Islander people, people with dementia, financially disadvantaged people, people living in remote or isolated areas, veterans, people who are homeless or at risk of becoming homeless, people who are care leavers, and parents separated from their children by forced adoption or removal, per Aged Care Act 1997.

[36] Tulcany Pty Ltd v Knox CC [2003] VCAT 1627, [11] - [15]. This decision was subsequently appealed - Knox CC v Tulcany Pty Ltd [2004] VCS, [16] - [18].

[37] TLC Aged Care Pty Ltd v Yarra CC [2015] VCAT 1601 [17] - [21].

[38] Section 7 of the Planning and Environment Act 1987.

[39] This building is not within a Heritage Overlay.

1. [40] Defined by clause 22.04-3 as making "an architectural and historic contribution that is important within the local area".

[41] Based on information provided at the hearing.

[42] Willabee Pty Ltd v Stonnington CC [2003] VCAT 716.

[43] This point is acknowledged in Deal Corporation v Stonnington CC [2010] VCAT 982, [22].

[44] We note that the road condition is different on the west side of Charles Street where the width of Greville Street increases compared with the land directly north of the subject land.

[45] A decision of the Tribunal in 2004 describes this building as having a mezzanine. The decision refers to an earlier 2001 permit application for a development where the Tribunal found impacts from the proposed development would have unacceptable impacts on the northerly-oriented dwelling at No. 38 Charles Street. Refer Harick v Stonnington CC [2004] VCAT 1065 [sic]. There is a detailed description of No. 38 Charles Street, in the extract from the 2001 decision to which we refer again later in these reasons.

[46] Who expressed concern about the total removal of the bakery.

[47] Draft heritage guidelines prepared by Mr Trethowan's office dated 15 May 2016. They refer to around 8 metres of the western portion of Nos. 44 - 46 Charles Street for retention while Mr Trethowan suggests some 3-4 metres if the building is to be partially retained. Mr Sheppard stated that had also been advised of this position and allowed for the front portion of the building to be retained as part of the street wall in his early design guidance to the applicant.

[48] Clause 21.04. Charleston is also a Group 1 centre.

1. [49] Previously, this was also confirmed by the application of clause 22.19 and DDO7 to the Prahran/South Yarra Principal Activity Centre but these clauses expired in 2015.

[50] Ashwerth Pty Ltd v Stonnington CC [2009] VCAT 2769 [35] - [40].

[51] Based on the design response document.

[52] We refer to clause 55 as approached by the parties and experts below.

[55] For example, Urban Context Report and Design Response Rev B, May 2016, at section 02.11.

[57] Karastarou v Port Phillip CC [2016] VCAT 1565 [64].

[58] There are also objections with respect to traffic and loading using the laneway to which two of the dwellings at No. 38 Charles Street rely on for pedestrian and vehicle access that we refer to below.

[59] Harick v Stonnington CC [2004] VCAT 1065 [11].