RF Nominees Pty Ltd v Darebin CC [2015] VCAT 816

1. The decision of the Responsible Authority is affirmed.
2. In permit application D/482/2013 no permit is granted.

Mr J Glossop, planning consultant of Glossop Planning Pty Ltd

• Mr C Czarny, urban designer of Hansen Partnership;
• Mr L Richardson, environmental engineer of Sustainable Development Consultants Pty Ltd; and
• Mr J Kiriakidis, traffic engineer of GTA Consultants (Vic) Pty Ltd

Mr R Phillips, appeals advocate and Mr C Murphy, town planner

The site comprises three lots on the west side of Plenty Road in a mid-block location between Tyler Street and Hawker Avenue. It has a 15.24m frontage, a depth of about 45m and a total area of 679sqm. The land falls approximately 2m from the northwest to the southeast.

It contains single storey and double storey buildings fronting Plenty Road. Vehicle access to the land is available via a carriageway easement abutting the rear of the southern side boundary. This easement traverses two other private properties to reach Hawker Avenue.

Development of a six storey apartment building. Vehicle access will be via the carriageway easement to a ground level car park and a car lift providing access to one basement level of car parking. The design includes a scalloped northern elevation to assist in the provision of light into the apartments.

Application under Section 79 of the Planning and Environment Act 1987 - to review the failure to grant a permit within the prescribed time[1].

Clause 34.01-1 To construct a building or construct or carry out works in C1Z.

Clause 52.06-3 To reduce the number of car spaces required for the residential apartments from 29 to 24 spaces, for the residential visitors from 5 to 0 and for the food and drink premises from 2 to 1.

Clause 52.07 To waive the requirement to provide a loading bay.

Lyndale & Black Pty Ltd & I O Black v MMBW 1 PABR 207

Kelly & Ors v Darebin CC [2015] VCAT 581

1. RF Nominees Pty Ltd and Hykosu Pty Ltd (the Applicant) seek planning permission to construct a six storey building containing residential apartments and a ground level food and drink premises on the land at 629, 631 and 631A Plenty Road, Preston.
2. This application seeks a review of the failure by Darebin City Council to make a decision within the prescribed time. The Council decided that it would have refused the proposal for a number of reasons including:
   • The proposal being an overdevelopment;
   • The poor level of internal amenity for a high proportion of apartments;
   • The inadequate response to environmental sustainability design objectives;
   • The questionable useability and long term viability of the small food and drink premises;
   • The adequacy of the activation of ground floor frontage; and
   • The overlooking from some apartments.
3. A number of residents submitted statements of grounds that contain other issues including:
   • The relevance of planning scheme amendments;
   • The acceptability of vehicle access to the site via a carriageway easement across other private properties;
   • Amenity impacts to adjoining residential properties including overshadowing, overlooking and visual bulk;
   • The adequacy of the parking provision; and
   • The traffic impact, particularly upon Hawker Avenue.
4. The key issues that have influenced our decision about the merits of this proposal are the acceptability of a six storey building on this site having regard to the physical and planning policy context; and whether the proposal achieves an acceptable level of amenity for both future residents and neighbouring properties.
5. The Council is undertaking a strategic planning process about the future of the Plenty Road corridor, particularly the density and scale of new development. However, the more significant of these proposed planning policies and controls are not sufficiently advanced to be considered "seriously entertained" and thereby have limited relevance in our consideration of this proposal. Also, this proposal does not achieve an acceptable internal amenity for future residents and creates unacceptable amenity impacts to adjoining residential properties. It is for these principal reasons that we have decided no permit will issue. However, this decision does not mean this site is not suitable for a higher density of development in the future, if the strategic work including planning policies and controls for the Plenty Road corridor are further progressed. Hence, we have provided findings on some of the other issues raised as well in an effort to assist all parties in the event that a new application for planning permit is made for this site.

1. Whether a six storey building is acceptable on this site is to be determined having regard to the relevant planning controls, the physical context of the site and the planning policy framework that applies.

1. The only planning control (zone or overlay) applying to this site and the surrounding land is the zoning. This site and all properties on both sides of Plenty Road between Tyler Street and Hawker Avenue/Rene Street are zoned Commercial 1. The purpose of this zone includes to implement relevant State and local planning policies and "to provide for residential uses at densities complementary to the role and scale of the commercial centre". The residential properties to the west are zoned General Residential Schedule 2. The purpose of this zone includes "to provide a diversity of housing types and moderate housing growth in locations offering good access to services and transport" and "to encourage development that respects the neighbourhood character of the area".
2. In terms of built form, what we can draw from the zoning is that:
   • The residential area may be suitable for moderate housing growth if the area is considered a location that offers good access to services and transport; and
   • The density of residential development along Plenty Road is to be complementary to the role and scale of the commercial centre.
3. In order to ascertain the role and scale of the commercial centre, it is necessary to consider the physical context of the site and the relevant planning policy framework.

1. The site is located close to the intersection of Plenty Road and Tyler Street. This immediate area of Plenty Road contains a low scale church and single and double storey commercial premises/houses. In other words, almost all of the buildings along Plenty Road are low scale. There is one recent four storey building further to the south at about No. 613, and part of the rear of this development can be viewed from Hawker Avenue. However, due to the topography of the area, this property is at a lower ground level than Hawker Avenue, and this diminishes the scale of the four storey form visible from Hawker Avenue.
2. None of the properties on the west side of Plenty Road between Tyler Street and Hawker Avenue, including this site, have vehicle access to Plenty Road. Some of the properties to the north of this site have rear access to a laneway accessible via Tyler Street. This site has rear access via a 3.0 metre wide carriageway easement that extends over the two properties to the south of the site, providing vehicle access to the site via Hawker Avenue.
3. Plenty Road has a tram service and there are bus services in the neighbourhood. Quite a number of the commercial, industrial and retail premises along Plenty Road are empty. This can in no way be described as an active or vibrant commercial centre. We agree with the submissions and statements of grounds of the residents that one needs to travel further afield to access all regularly required retail services.
4. To the rear of the site is a typical residential hinterland comprising predominantly detached housing of either single or double storey height. This site abuts two properties to the rear, one contains a single storey house fronting Tyler Street and the other contains a double storey house fronting Hawker Avenue.
5. Further to the west is Preston Primary School. We acknowledge the residents' submissions that, as Tyler Street is one way, Hawker Avenue is regularly used as part of a vehicle access route to and from the school.
6. Having regard to this physical context, this proposal is quite different. It is an apartment style building that is six storeys in height. Hence, the extent of change proposed on this site is significant. The question is whether the planning controls and policies provide support for such a significant change.
7. Again, the purpose of the Commercial 1 Zone includes providing residential densities complementary to the role and scale of the commercial centre. Having regard to the physical context already described, the existing building scale is predominantly low; there is limited activity in the centre; and there is no obvious role to this section of Plenty Road. This section of Plenty Road contains a mix of commercial, retail and industrial uses as well as vacant premises.
8. Hence, we need to consider the relevant planning policies in the planning scheme and the guidance they contain about the role and scale of this area of Plenty Road.

1. State planning policies seek to develop a network of activity centres of differing size and function, including differing types and densities of housing[3]. New housing, including a range of housing types, is to be located in or close to activity centres and employment corridors and at other strategic redevelopment sites that offer good access to services and transport[4]. The Municipal Strategic Statement (MSS) states activity centres are the focus for achieving many directions of Plan Melbourne[5]; and that opportunities for incorporating residential development in and around centres need to be identified and quantified. The MSS goes on to state:

The role of each centre also needs to be identified, and objectives for each developed to ensure the individuality of each is retained and enhanced.[6]

1. The MSS Framework Plan at clause 21.04-3 and the Economic Activity map at clause 21.05-5 identifies principal, major and specialised activity centres; future activity centres; potential cluster centres; retail areas; and secondary employment precincts. This site and the surrounding sections of Plenty Road are not identified as any of these.
2. The Activity Centres section of the MSS at clause 21.05-6 refers to different types of activity centres and "55 local convenience centres" as identified in a reference document titled "Retail Activity Centres Strategy"[7]. Having perused this document, we note this area of Plenty Road around the Tyler Street intersection is nominated as a local convenience centre and is described as:

Comprises local convenience services including newsagent, etc; has wider role in bridal fashion and services, jewellery, flower arranging etc; strong video shop; evidence of some change to office use; potential for residential conversion; hotel at northern end.

1. The fact that this area of Plenty Road is identified as a local convenience centre means the Activity Centres Policy at clause 22.03 applies. There are no objectives relating to local convenience centres and the policy makes no mention of such centres being suitable for increased residential development. Hence, there is no guidance in this policy about the density of residential development in local convenience centres; or the role and scale of local convenience centres, including this one.
2. The Housing section of the MSS at clause 21.05-2 states:

While residential or mixed use development of four or more storeys contributes positively to economic and social conditions in the City, care is required to ensure that impacts on existing uses are contained. This requires attention to overshadowing, privacy, acoustic separation, vehicle access, car parking arrangements and the relationship of new buildings to their surroundings in both visual and functional terms. Residential or mixed use development of four or more storeys will generally be supported on sites displaying the following characteristics:

• sites containing existing buildings of a height and bulk substantially greater than the prevailing height and bulk in the immediate locality
• sites of a size, shape, location and orientation where the potential for overshadowing and overlooking of neighbouring residential property is minimised
• sites located on a Road Zone Category 1 or 2
• sites with potential to provide a high level of amenity to residents of the development by virtue of the availability of attractive views or outlook
• sites within comfortable walking distance (400 metres) of a railway station or a major or principal activity centre
• selected sites identified in the Preston Central Structure Plan (2006).

1. The Council says in this case the only relevant characteristic in the list above is that this site is on a Road Zone Category 1 (Plenty Road). However, the second characteristic is also relevant as there is the potential for overshadowing and overlooking to the two rear abutting residential properties. This characteristic requires a judgment to be made about whether the size, shape, location and orientation of this site minimises this potential.
2. We discuss overlooking and overshadowing later in these reasons. Overall, these two characteristics (out of the entirety of the MSS and local planning policies) provide what we would describe as limited support for the significant extent of change envisaged by this proposal. This is not a circumstance where there is clear policy support for a building of six storey on this site.

1. The Council is proposing changes to the planning scheme including a new MSS (Amendment C138) and a new Design and Development Overlay (Amendment C137) that would apply to this site. Their relevance and weight are matters that we have also considered.

1. The proposed new MSS identifies this area of Plenty Road for "urban intensification"[8]. The Strategic Housing Framework Plan at clause 21.03-1 nominates both sides of Plenty Road between Tyler Street and Wood Street as a "Substantial Housing Change Area (mixed with non-residential uses)". Substantial Housing Change is then explained and includes the following extract:

The scale and intensity of residential growth will differ across Substantial Change Areas depending on their strategic capacity to accommodate municipal growth and future housing needs as described at Clause 21.01-6. Generally, residential growth in Darebin adheres to the following hierarchy:

1. Preston Central and Northland East Preston Activity Centres;
2. Reservoir and Northcote Activity Centres;

1. Strategic Corridors including Plenty Road and St Georges Road; and
2. Other substantial change areas as identified in the Strategic Housing Framework Plan.

1. The Council says the area around the Plenty Road/Tyler Street intersection is nominated as an activity centre in the proposed new MSS. Our perusal of the MSS reveals one mention of this area as an activity centre in a dot point in clause 21.01 (under a subheading for strategic corridors and under a further subheading for Plenty Road) that states:
   • Is envisaged to accommodate a mix of commercial and higher density residential development to support more efficient and accessible public transport. This will support revitalised activity centres at the Junction, Tyler Street, Summerhill Village and Lancaster Gate, and support La Trobe University.
2. The inclusion of Tyler Street in this dot point appears to be at odds with the rest of the text in clause 21.01, the Strategic Framework Plan at clause 21.01, the Housing Strategic Framework Plan, the Strategic Economic Development Framework Plan at clause 21.04-1 and the Retail and Commercial Activity key issues and strategies that commence at clause 21.04-3 of the proposed new MSS. None of these plans or sections of the MSS identify Tyler Street as an activity centre or local centre. As such, we are not persuaded this area is a neighbourhood activity centre as was submitted by the Council. Rather, Plenty Road is identified consistently throughout the proposed new MSS as a strategic corridor where the local retail and commercial role is supported with opportunities for improved function. Having regard to the hierarchy of substantial change areas, the Plenty Road corridor is at the lower end.
3. The new MSS criteria for the encouragement of four or more storeys again includes sites that minimise overlooking and overshadowing of neighbouring residential properties; and sites located on a Road Zone such as Plenty Road. In other words, there are no new criteria relevant to this site. The housing provision strategies in the new MSS encourage a variety of housing typologies at increased densities in substantial change areas, with the scale of development appropriate to the context identified in a structure plan or Council policy (neither of which yet apply in this case); and generally in accordance with the residential growth hierarchy quoted earlier. Again, the Plenty Road corridor is at the lower end of this hierarchy.

1. This planning scheme amendment has been exhibited; considered by an independent Panel; and the Panel's recommendations considered by the Council. The Council has adopted the Amendment with changes, including recommendations by the Panel; and submitted it to the Minister for Planning for approval in September 2014. The Council submits this means Amendment C138 is a "seriously entertained planning proposal" and should be given weight in this case. None of the other parties opposed this.
2. None of the parties, including the Council, suggested that the Council's approved version of the Amendment differed or differed to any significant degree from the Panel's recommendations. As such, it is appropriate to afford this amendment some weight in our considerations. For the reasons explained above, we accept Plenty Road corridor is earmarked for substantial change, but on the basis that this corridor sits at the lower end of the hierarchy of substantial change areas. This means the scale and intensity of residential growth may be less than other higher order nominated activity centres.

1. Of relevance to this site and this proposal, Amendment C137 proposes a Design and Development Overlay (DDO) Schedule 17 to manage built form outcomes along the Plenty Road corridor. The exhibited version of DDO17 nominates Plenty Road, north of Wood Street and further north beyond Tyler Street, including this site, as a "neighbourhood centre". DDO17 also nominates building heights of a minimum of 4 storeys and a maximum of 6 storeys for the section of Plenty Road including this site. It also contains requirements about setbacks depending on adjacent zonings, site coverage, private open space, building design, esd requirements and car parking and vehicle access requirements.

1. We have given limited weight to this Amendment.
2. The Independent Panel Report considering this Amendment recommended 24 changes including completely redrafting the DDO Schedule. The Council Meeting Minutes of 16 February 2015 described the Panel's recommendations as being of "an investigative nature" that left "a level of flexibility" in finalising the various aspects of the amendment documentation. The Council tabled three versions of the DDO schedule. There appears to be a lot of differences between the exhibited version, the version presented to the Panel and the version presented to the Council for adoption in February 2015. During the hearing, it was noted by us and the parties that the latest version appears to contain much of its exhibited version content rather than following the Panel's recommendation to delete various aspects of the content.
3. The Council submitted to us in the first two hearing days that this amendment is a "seriously entertained planning proposal" because it has been publicly exhibited, considered by a Panel and is about to be adopted by the Council. That situation has now changed, but before we explain this we wish to make it clear that the reasons Council gave at that point in the hearing did not persuade us that Amendment C137 should be considered "seriously entertained".
4. The concept of a "seriously entertained planning proposal" is commonly attributed to the former Planning Appeals Board ('the Board') decision in 1983 of Lyndale & Black Pty Ltd & I O Black v MMBW[9]. In that case, the Responsible Authority was the former Melbourne Metropolitan Board of Works (MMBW). At that time, the MMBW was a metropolitan regional authority with planning responsibility for significant areas of Melbourne. It proposed a major revision to the Melbourne Metropolitan Planning Scheme by way of Amendment 150. This Amendment was described in the Board decision as "extremely comprehensive and detailed", involving a three month public exhibition period, 707 submissions and a Panel hearing that took place between February and May 1982. The relevance of Amendment 150 in that particular case was that it proposed to rezone the land in question to a General Farming B Zone, which would mean the proposal before the Board to subdivide it would be prohibited. The Board ultimately determined that Amendment 150 was a relevant consideration and "should be given considerable weight" as it is:

... a planning proposal of a formal nature and it has passed through a number of stages in the planning process. The Responsible Authority is pursing the implementation of the amendment with diligence.

1. Further, the Board found the proposed subdivision would be irrevocable once carried out and would be inconsistent with the objectives set out in the amendment.
2. Lyndale & Black Pty Ltd identifies that a change to operative planning controls is a relevant consideration to be taken into account, whether or not it is in the form of an adopted amendment. The weight to be given to such a planning proposal will vary according to a number of factors, such as (and we quote):

1. The form of the planning proposal - a formal planning scheme amendment will be given much more weight than a planning proposal of a less formal nature. 2. The stage which the planning proposal has reached in the planning process - greater weight will be given to a planning proposal which has reached an advanced stage in the planning process than to a proposal of an embryonic nature.

1. The seriousness with which the responsible authority or state government is pursing the implementation of the planning proposal.

1. Whether the grant of a permit would impair the objectives of the planning proposal and not merely be inconsistent with the strict letter of the planning proposal. 2. The nature of the development or use for which a permit is sought - for example a planning proposal will generally have greater weight when a permit is sought to develop vacant land or to subdivide land than when a permit is sought to use an existing building especially for temporary purposes.

This list is not intended to be an exclusive list of relevant factors that may determine the weight that should be given to a planning proposal.

1. In this case, factor b quoted above requires a more detailed consideration than merely considering the stage that the planning scheme amendment has reached. The level of certainty of implementation of an amendment will vary if the content of the amendment changes during its processing. For example, an amendment that is publicly exhibited, receives no submissions and is adopted as exhibited will have a higher level of certainty of implementation than an amendment that changes throughout its processing. Amendment C137 is such an example. During this hearing the Council presented us with:
   1. The exhibited version of the proposed DDO;
   2. The revised version of the proposed DDO presented to the Panel;
   3. The Panel report and its recommendations including that the DDO be redrafted entirely and that certain aspects of it be modified or deleted; and
   4. A new version of the proposed DDO intended by officers to be recommended for adoption by the Council.
2. The Council did not take us through these various versions of the DDO in detail. The latest version is different in language and presentation to the first two versions, but the Council accepted it does not include all of the Panel's recommended changes. Whilst Council officers may consider the latest version achieves the right balance between the outcomes sought by the submissions received, the Panel's recommendations and the Council's aspirations, we cannot be confident that the Minister for Planning will agree. We contrast this with an amendment that is adopted containing the exact combination of the exhibited version plus the Panel recommendations. In that scenario, it is possible to have a level of confidence that the amendment may be implemented into the planning scheme.
3. In this case, we have no confidence about the likelihood of the implementation of the amendment due to the extent of change in the versions of the DDO, and the entire redrafting of the DDO that does not encompass all of the Panel recommendations.
4. On our last hearing day, the Council advised us that a report recommending the adoption of Amendment C137 was presented to Council in February and deferred; presented again in March and deferred. Now, the Council is unable to advise us when or if the Amendment will be presented to Council again. This is another reason why we have decided to give this amendment limited weight.

1. This means that there is no clear policy support for a six storey building on this site; and there is no clear policy support for a significant change in built form scale and intensity (i.e. from predominantly 1-2 storeys to six storeys). The existing and proposed policy support for four storeys or more contain a characteristic about minimising overlooking and overshadowing to neighbouring residential properties. The existing policy support for four storeys or more contains a characteristic to provide a high level of amenity to residents of the development by virtue of the availability of attractive views or outlook. For reasons that we will now explain, we are not persuaded this proposed design achieves the outcomes sought by policy.

1. Mr Campanelli and Ms Souliandis individually spoke at the hearing on behalf of the two adjoining residential properties to the rear. Both properties are zoned General Residential. In addition to the amenity consideration in the MSS policy for four or more storeys, the Commercial 1 Zone also requires consideration (as appropriate) of overlooking and overshadowing of adjoining land in a General Residential Zone. The zone decision guidelines also include consideration of clause 55 (as appropriate).
2. Whilst it has often been said in previous Tribunal decisions that residential amenity expectations need to be tempered when residential land is adjacent to commercial land, the circumstances have now changed somewhat with the new Commercial 1 Zone and new residential zones. There is now a specific consideration in the decision guidelines of the Commercial 1 Zone of overlooking and overshadowing of adjoining residential land.
3. In Kelly & Ors v Darebin CC[10], Member Naylor found the consideration of overlooking and overshadowing is a qualitative one having regard to the particular facts and circumstances of the proposal. The new residential zones have effectively created a development potential hierarchy and the differences in the development potential of these zones is a relevant factor when considering the acceptability of overlooking and overshadowing amenity impacts of a development proposed on Commercial 1 zoned land.
4. In this case, we find that the General Residential zoning of the two adjoining residential properties does not create any clear development potential. The purpose of the zone identifies that the residential area may be suitable for moderate housing growth if the area is considered a location that offers good access to services and transport. Given our previous findings on the physical context, there may be some debate as to whether this area does offer good access to services. Further, the schedule to the General Residential zone contains no variations to the clause 55 standards, which means this area has not been identified for a scale or intensity of development different to that generally contemplated by clause 55. Finally, the zone purpose encourages development that respects the neighbourhood character, and the existing character is predominantly detached single and two storey houses. Hence, the existing physical context remains relevant.

1. The rear of the proposed building includes 10 west facing balconies/terraces across levels 1 to 5. They have screens in the form of planter boxes ranging in depth from 300mm to 500mm. The Council submitted that the screening does not satisfy standard B22 of clause 55, and Mr Czarny agreed. The Council suggested more permanent screening to 1.7 metres is needed, and Mr Czarny suggested alternate planter boxes or horizontal screens. Mr Campanelli says the west elevation needs to be visually appealing, so it would be better if the screening used was landscaping (i.e. planter boxes containing landscaping) rather than screens. This outcome is not supported by Ms Souliandis who would prefer zero transparency so that overlooking potential is blocked out.
2. The overlooking objective in clause 55 is not to prevent or block out overlooking, but rather to limit overlooking. Standard B22 makes it clear that limiting overlooking can be achieved by a suitable form of screening. We accept that the overlooking potential from this proposal can be limited by screening. However, the choice of screening is an important design consideration as it can contribute to the visual bulk of a new building. It is possible that both suggested screening solutions will add to the visual bulk of this proposal. As there is a lack of specific policy support for a six storey building on this site, the necessity for screening may add further to the visual bulk of this proposal and is not an acceptable outcome.

1. Mr Campanelli and Ms Souliandis are concerned about a solar reduction to their homes. However, this impact is not specifically sought to be addressed in clause 55. The overshadowing objective in clause 55 is concerned with not significantly overshadowing secluded private open space rather than internal rooms of a house.
2. Ms Souliandis' property will be affected by morning shadow but the Council pointed out this primarily falls onto an outbuilding in her back garden. Whilst there will be some shadow impact, we accept that it is minor and satisfies clause 55. Hence, this is not a reason to refuse this proposal.
3. The shadow impact upon Mr Campanelli's property in Hawker Avenue is greater. His secluded private open space is significantly affected at 9am and by 11am the shadow has moved off his property. At 10am, an additional 12.6 square metres of additional shadow is cast into his back garden, including an area that contains an outdoor alfresco living area.
4. The shadow diagrams suggest that an area of 40 square metres with a minimum dimension of 3 metres will receive at least 5 hours of sunlight as per the clause 55 standard. However, this area is already affected by shadow from the northern boundary fence with Ms Souliandis' property, and when this existing shadow is taken into account, the standard is not met. The decision guidelines for the overshadowing objective require us to consider the impact on the amenity of the existing dwelling as well as the effect of a reduction in sunlight on the existing use of the secluded private open space.
5. Mr Campanelli explained his rear secluded private open space is designed around the alfresco living area, which he described as an outdoor extension of the dwelling that is regularly used in the mornings. The sunlight that will remain is located in the northwest section of Mr Campanelli's property, which is not the principal area of secluded private open space.
6. When these circumstances are combined with the lack of specific policy support for a six storey building on this site, the overshadowing impact upon Mr Campanelli's property is not an acceptable outcome.
7. Given these findings, the proposal has not minimised the overlooking and overshadowing impacts on neighbouring properties. Therefore, the proposal does not have MSS policy support for a residential development of six storeys (i.e. four or more storeys in accordance with clause 21.05-2).

1. The Council submitted a 45 degree angle for the rear of the proposed building would be more acceptable in terms of visual bulk as this is the angle referred to in the DDO in Amendment C137. As we have given limited weight to this amendment, we do not consider this is the appropriate method for assessing visual bulk in this case. The Residential and Mixed Use Development of Four or More Storeys local planning policy at clause 22.10 suggests consideration of the side and rear setback objectives and standards contained in clause 55. Mr Czarny gave evidence that the first three levels are setback 5.1 metres, the upper levels are recessed and the proposed building is compliant with standard B17 in clause 55. Standard B17 is one measure of visual bulk, but there is more to it than just this standard. Visual bulk is the planning term used to describe the impression that a building may have on its surrounds. Visual bulk can be addressed through a range of measures including building height, setbacks, articulation, materials and finishes and landscaping. In other words, more than standard B17.
2. Mr Glossop submitted that the test is not whether the proposal will be seen but whether the extent of visibility is acceptable having regard to the vision embodied in planning policy and the scale of surrounding and nearby buildings. We have already explained that this proposal is significantly different to the existing physical context; that the existing policies do not specifically provide support for a change of this magnitude; and neither do the proposed policies in Amendment C138. We are therefore unable to conclude that a six storey building is acceptable on this site and hence its visibility and visual bulk impact is not acceptable.

1. Mr Campanelli and Ms Souliandis raised concern about noise associated with the use of the balconies; vehicles entering and leaving given there will be 120 vehicle movements daily; the opening and closing of the car lift door to the basement car park and the garage door to the ground level car park; and waste bin trucks.
2. We agree the use of balconies can generate noise, but this is not a reason to refuse this proposal. It is an inevitable consequence of higher and more intensely developed residential buildings.
3. The noise of vehicles, trucks and car lift/garage doors is also a consequential impact of new development. This is a situation where the commercial to residential interface is a relevant consideration. In other words, such amenity impacts are to be expected in these interface situations. Permit conditions could address the hours for waste collection so that the reversing beep from the garbage trucks does not occur at unreasonable hours of the day.

1. The site has no existing vehicle access to Plenty Road and no abuttals to any other roads. Rather, the site has a right of carriageway to Hawker Avenue across the rear of the two Plenty Road properties to the south. The copy of Title submitted with the permit application illustrates the width of the carriageway easement is 3.05 metres. Mr Midgley submits this right of carriageway is quite steep and pointed out that the contours contained in the proposed plans of the development support this. Also, the carriageway is not fully constructed. Only the steep section adjacent to Hawker Avenue is; and then it becomes a combination of gravel, grass and soil with tyre trails through it.
2. Mr Campanelli opposed this access, pointing out that it is not a road. Mr Glossop responded that the carriageway is underutilised now and could be used to a much greater extent than at present regardless of this proposal. Both of these submissions are a little too simplistic.
3. A carriageway easement effectively provides a property right to make use of land owned by someone else to gain access. It is a private easement as it creates a right for a landowner over neighbouring land to enhance the use of the landowner's land. In this case, this carriageway is necessary to provide vehicle and waste truck access to this proposed development. As the Plenty Road frontage is controlled by VicRoads, any proposed access from this road may be refused. Mr Kiriakidis stated traffic engineers commonly seek vehicle access to be provided from a lower order road where multiple points of access exist, and this is what is proposed here. The fact that this is a carriageway and not a road controlled by the Council is not a reason to refuse this proposal. Rather, the question is whether the carriageway is capable of accommodating this proposal.
4. Mr Kiriakidis gave evidence that this carriageway width and length is sufficient to cater for the proposed 120 vehicle movements per day from this site as well as waste trucks. These trucks will access the ground level car park to collect the waste approximately six times per week (four for the residential and two for the commercial) based on a Waste Management Plan prepared by Leigh Design tabled during the hearing. Mr Kiriakidis advised he preferred on-site collection and we agree this is the preferable outcome.
5. On day 1 of the hearing, Mr Midgley questioned whether the ground levels of the carriageway provided suitable access for the vehicles and the garbage trucks. On day 3, Mr Kiriakidis provided a ground clearance assessment for a 99th percentile vehicle, which is akin to the length of the garbage truck proposed. This assessment is based on the spot levels provided on the architect's drawings (as opposed to a feature survey prepared by a licensed land surveyor). He expressed concern that the southern end, closest to Hawker Avenue, has a gradient of 1 in 4.3 (23%) which means vehicles entering the carriageway have a clearance of about 30mm. Mr Kiriakidis expressed the view that this may necessitate modifications to the levels of the carriageway in order to provide sufficient and safe clearance. He said a comprehensive review is needed of the carriageway to ensure an acceptable outcome.
6. On day 4 of the hearing, Mr Glossop tabled a letter from Mr Kiriakidis advising that he had undertaken a further ground clearance assessment based on a land surveyor's survey plan dated September 2014. Mr Kiriakidis says in the letter that the steepest side of the laneway allows a minimum clearance of 100mm for a waste truck entering or leaving. His letter concludes that he is satisfied a waste truck will be able to access the carriageway without any underbody scraping. Mr Kiriakidis was not re-called to give evidence about this so we were unable to ask questions about why the ground clearance cross-section attached to the letter appears to show a consistent and gradual rise from Hawker Avenue to the site. This does not accord with the photographs tabled in the hearing, nor an inspection of the carriageway. The first section of the carriageway is steep and fully constructed with significant side walls. The balance of the carriageway is not constructed and contains sections with reasonable gradients.
7. As we support the use of the carriageway to provide vehicle and waste truck access to this site, it is important that it is constructed to an acceptable standard so that it will be used. Works to this carriageway were not proposed as part of this permit application, so the land that comprises this site does not include the two properties to the south. During the hearing, we asked about the appropriateness of including permit conditions requiring works to be done on other private land not included in the permit application. On day 4 Mr Glossop provided a letter from one of the two properties to the south consenting to the construction of the carriageway.
8. Regardless of this letter, this issue would have been problematic if we had been of a mind to grant a permit. Any future application should include the works required to enable acceptable access by waste trucks and vehicles based on a comprehensive traffic engineering review of the carriageway and its gradients. This means any future application would also need to include the two properties to the south and that the owners of those properties are aware of the application. Acceptable access into each of those properties from the carriageway also needs to be detailed on the plans.
9. Amendment C137 and the Urban Design Framework that formed the basis of some of its content are silent on this issue. Road access to Plenty Road properties is an important consideration when proposing significant change in the intensity of development. If parking, waste collection and loading are to be provided in individual developments then a strategic overview of the parking and access requirements in the area is also desirable. Otherwise situations like this occur, where the access is over private property that sits outside of the proposed development.
10. If, strategically, it is preferable for there to be rear access and higher rise development is to be encouraged in the future, then the Council should be considering ways of achieving the necessary and equitable access. This is particularly relevant in circumstances such as this, where you have a carriageway length of about 32 metres to the site and only a single lane width.
11. Mr Kiriakidis pointed out the Australian Standard (section 3.2.2) contains a guideline that consideration be given to requiring two way vehicle movement if the peak hour accommodates 30 or more vehicles. He says this proposal will generate 12-13 movements and he saw one other vehicle movement during one of his inspections. Hence, it is his opinion that there is no need to consider two way vehicle movement at this time. However, Mr Campanelli submitted there are about 10 cars that utilise the carriageway now, primarily from the property on the corner of Plenty Road and Hawker Avenue. We were advised this property contains both commercial and residential tenancies. Mr Kiriakidis' evidence does not include these vehicles, in part because he pointed out that there is a second access point available to this property. Nevertheless, the peak hour usage could be greater if these additional cars were factored in.
12. We then asked Mr Kiriakidis about the implications of future development on the two private properties to the south of this site, i.e. development in accordance with Amendment C137 of up to 6 storeys. He acknowledged this was something that should be considered, and if the property immediately to the south of the site was developed to a similar scale and intensity, it could generate another 12 vehicles in the peak hour thereby meaning the carriageway would accommodate 24 vehicles in the peak hour. He also advised in cross-examination that the waste trucks form part of the consideration and have an increased generation as a vehicle of possibly 1.25 vehicle movements. However, Mr Kiriakidis did not go on and express a view about the acceptability of all of this given the guideline in the Australian Standard.
13. It seems to us that there is potential for the 30 vehicles mentioned in the Australian Standard to be exceeded in the future along this carriageway. Again, if it is preferable for there to be rear access from these properties and, strategically higher rise development is to be encouraged, then the Council should be considering ways of achieving the necessary access, including whether two way access or part two way access should be required. This may not need to be resolved fully if only this site is developed, but if either property further to the south seek to redevelop as well this issue may well arise.

1. In addition to the issue of vehicle access to the site, Mr Campanelli expressed concern about traffic in Hawker Avenue, particularly given there is part of the local primary school at the end of the street. He explained there is a one way traffic movement by parents from Tyler Street (which is a one-way westbound street) into Ellison Street and then Hawker Avenue. Mr Kiriakidis acknowledged there may be some overlap between vehicles leaving the site in the morning peak hour (8-9am) and the school drop-off traffic. However, he said it was unnecessary to survey this traffic impact because the scale of this project and its impact on Hawker Avenue of 12-13 vehicles in the peak hour is small. Mr Kiriakidis said if the development had generated 50 vehicles in the peak hour, he would have surveyed the traffic impact. Whilst we accept Mr Kiriakidis' evidence, we again suggest to the Council that the broader scale implications of traffic from the three properties with access to the carriageway easement may be a matter that, strategically, should be considered as part of the future planning for the broader area.

1. The proposal provides 25 car spaces over two levels (ground and basement). This is less than the overall parking required by the planning scheme of 36 spaces including 29 resident spaces, five residential visitor spaces and two food and drink premises spaces.
2. Mr Midgley questioned the acceptability of reducing the car parking given the parking restrictions that exist already in the surrounding streets; and given that Hawker Avenue is a narrow street that cannot accommodate overflow parking.
3. The Council agrees to the reduced provision of car parking in this proposal. Mr Kiriakidis' opinion is the proposal will generate a demand for 22 long term spaces (21 resident spaces and one food and drink premises space) and a peak demand for four short term visitor spaces can be provided in the surrounding streets as there is sufficient capacity.
4. It is not uncommon for a reduction in car parking to be sought in proposals such as this, particularly for the car parking associated with visitors to the residential development and visitors to the food and drink premises. Based on the existing availability of on-street parking as surveyed in the immediate vicinity of this site (as opposed to the opposite side of Plenty Road), which may be influenced by the number of vacant commercial/retail/industrial premises along Plenty Road, we would agree to the reduction in the required short term parking provision. Reducing the residential car spaces from 29 to 24 is a more significant consideration. Given we have decided to refuse this proposal for other reasons, the acceptability of reducing the residential car parking is a matter that will need to be determined afresh as part of any new permit application.
5. What we do wish to say about Mr Midgley's concerns is that the issue of on-street parking long term does not appear to have been considered in Amendment C137 or the associated Urban Design Framework. Whilst there is a section on car parking provision in the proposed new MSS in Amendment C138, it generally contains what we would describe as motherhood statements. So it is unclear what Council's vision is in regard to parking provision as part of its envisaged increased densities of residential development in strategic corridors such as Plenty Road. The cumulative effect of reduced parking provision in such corridors is a matter for the Council to consider as part of its broader strategic planning work.

1. The planning scheme contains State and local planning policies encourage good design that provides an acceptable level of internal amenity. In commercial precincts with rows of properties, particularly narrow properties, it can be difficult to create an apartment layout that provides acceptable internal amenity as well as minimising external amenity impacts. The Urban Design Framework that underpins Amendment C137 is effectively silent on how to deal with this.
2. In this proposal, the design incorporates a scalloped setback in the middle of the northern side boundary that has a length of about 16 metres and a maximum depth of about 5 metres. Three apartments at each of the first, second, third and fourth levels have a sole northern orientation; and two apartments at the fifth level have a sole northern orientation.
3. The Council raised concern about solar access and ventilation available to the apartments, particularly each of the north facing apartments due to the internal layout of apartments and the location and design of the scalloped northern setback. This concern was also shared by a number of the residents.
4. The Applicant clearly recognised the potential daylight issue associated with these apartments and called Mr Richardson to give evidence about the adequacy of the light reaching the apartments. Mr Richardson's evidence relies upon a CAD based program called Autodesk Ecotect Analysis 2011. He explained the details of the proposal are put into this program to develop a 3-dimensional model and then the surrounding buildings are put into the model based on the site plans of the surrounds and information sourced from Nearmap. This then enables modelling of daylight penetration into the apartments.
5. At the end of Mr Richardson's expert witness statement is an "important disclaimer" consisting of two paragraphs. The second paragraph says in part that Mr Richardson's company:

....excludes all liability to any person for any consequences ... arising directly or indirectly from using this document (in part or in whole) and any information or material contained here within.

1. We asked Mr Richardson whether he wished to delete this disclaimer from his witness statement as the Tribunal is indeed being asked by the Applicant to rely upon his expert opinion and therefore the consequences arising from using his witness statement and the information and material contained therein. Mr Richardson advised it should remain because there may be problems (i.e. errors) with the development that would impact upon the results contained in his witness statement. What then actually transpired in this hearing is that there were errors made in the inputting of the details of the proposal into the program by Mr Richardson's company, so Mr Richardson filed a supplementary statement and gave further evidence on day 3 of the hearing (some weeks after the first two hearing days) with the corrected details in the program.
2. Whilst we understand that companies need to have liability insurance out in the corporate world, the role of an expert witness at the Tribunal has different expectations. Expert witnesses at the Tribunal are often being asked to give opinion based evidence, whether it be about planning, urban design, bushfire risk or daylight/illumination levels (just to name a few). What materials or programs expert witnesses chose to rely upon in forming their opinion is a matter for them, knowing that the cross-examination may probe the material (i.e. the basis) for their opinion.
3. Putting aside the disclaimer, Mr Richardson's evidence is that the design of the proposal does not provide appropriate internal daylight amenity into the kitchens and battle-axe shaped bedrooms of apartments without alterations being made. He recommended high performance solar tubes be used in the kitchens at the rear of the apartments, and that the alcoves to the battle-axe shaped bedrooms be removed. He predicted these changes would provide appropriate indoor daylight amenity for the enjoyment and useability of future residents.
4. Mr Erlandsen questioned the effectiveness of these solar tubes. They may be a modern and new technology but the material provided to us suggests they can provide an alternate light source. Mr Erlandsen also questioned whether changing the internal conditions of the apartments in the program modelling could impact upon internal light levels, for example changing the curtains, colour of walls and carpets from light colours (which are contained in Mr Richardson's model). Mr Richardson agreed this could have an impact. Through cross examination, it also became clear the internal layout of the design, including door and wall placements would need to be further amended to ensure a reasonable level of daylight is provided to each apartment.
5. Whilst these changes may create what Mr Richardson considers to be an acceptable outcome, it is an outcome based upon the existing physical context surrounding this site. During cross-examination, it became clear that should the land immediately to the north ever seek to develop in a similar manner to this proposal, this could have significant impacts on the solar access to these apartments and that the solar tubes would not be able to adequately compensate for the loss of natural light. In other words, the scalloped setback in the middle of the building is not sufficient to overcome internal amenity impacts if there is further development to the north. A different design outcome is needed, one that does not rely so heavily upon a side interface that has the potential to change in the future. Having said this, we wish to make it clear that we do not expect all apartments to achieve similar levels of internal amenity. Some will be better than others.

1. This proposal relies heavily on maximising its northern orientation for light and ventilation in an effort to provide an acceptable level of internal amenity for this proposal, particularly its mid-block apartments at all levels.
2. The Guidelines for Higher Density Residential Development contain a section on the relationships to adjoining buildings. The Guidelines recognise that the proximity of buildings to each other affects the amenity of the spaces inside the buildings and solar access to private and shared open spaces. One of the design objectives is to ensure areas can develop with an equitable access to outlook and sunlight. The associated design suggestions include considering the possible future development of adjoining sites and allow, as best as possible, an equitable spread of development potential throughout the area.
3. Given what we have already said about the internal amenity of this proposal and the potential development of Plenty Road as a strategic corridor with a higher density of development, it is important that developers and the Council consider the implications for future development as well. This proposal is likely to be one of the first of many along Plenty Road. This proposal is doing the right thing by proposing a consolidation of land, but this proposal also seeks to utilise the amenity of the northern side boundary to the detriment of the development potential of the land to the north. This will need to be resolved either through careful planning of the apartment layout for individual proposals and/or through a more comprehensive analysis of how new multi-storey buildings should be designed alongside each other.

1. The proposal contains glazed windows to a proposed food and drink premises, a glazed double door providing shared access to the dwellings and the food and drink premises; and a partially glazed door providing after hours access to the dwellings.
2. The Council and the Applicant both submit there is no planning permission required for the extent of residential frontage to the street frontage. Regardless of whether planning permission is required, it remains important to achieve an acceptable active street frontage along Plenty Road. In the event that the activity centre status of this area of Plenty Road and Tyler Street is resolved, we note the Activity Centre Design Guidelines contain an objective to achieve active street frontages and the associated design suggestions include not having shared access in mixed use developments.
3. The proposed double doors provide access to an open area between the street and the residential lift that contains mailboxes and provides access between the food and drink premises and a disabled toilet and three indoor bicycle racks. This creates a poor sense of address to the residential entry. Any new design should seek to provide a dedicated active street frontage and, as best as possible, a separate residential entry.

1. We have endeavoured to explain the key reasons why we have decided to refuse this proposal having regard to the existing context and existing and proposed planning policies. We accept that this area of Plenty Road is suitable for redevelopment but, at this stage, the proposal is not an acceptable design response to the physical and policy context of the site. In the event that another permit application is made, we have provided findings on a range of other issues raised in the hope that this will assist all parties in considering the merits of such a proposal.
2. For the reasons explained above, the decision of the Responsible Authority is affirmed. No permit is to issue.

[1] Section 4(2)(d) of the Victorian Civil & Administrative Tribunal Act 1998 states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[2] We have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. We do not recite or refer to all of the contents of those documents in these reasons.

[8] Strategic Framework Plan at clause 21.01

[9] 1 PABR 207

[10] [2015] VCAT 581