1. The decision of the Responsible Authority is varied.
2. The Tribunal directs that permit PP10/00936 must contain the conditions set out in the Notice of Decision to Grant a Permit issued by the Responsible Authority on 21 December 2010, but with the following modifications:
   • (a) the deletion Conditions 1(a), 1(c), 1(o) and 24;
   • (b) the deletion of Condition 1(i) and its replacement with the following:

"The curved vehicle access ramp designed in accordance with the requirements of Clause 2.5 of AS/NZS 2890.1-2004, or the provision of swept path diagrams demonstrating the access arrangements to the satisfaction of the Responsible Authority to allow simultaneous two way access on the curved ramp."

1. The Responsible Authority is directed to issue a modified permit in accordance with this order.

For Riva Hawthorn Pty Ltd and Harro Properties Pty Ltd

Mr Michael Wright QC with Ms Nicola Collingwood instructed by Blaaks Lawyers Expert evidence was called from Mr Andrew Biacsi, planner of Contour Consultants, Ms Charmaine Dunstan, traffic engineer of the Traffix Group.

The use and development of the land for 108 dwellings comprising three studio apartments, 43 one bedroom and 62 two bedroom apartments. There are several habitable levels over a two level basement carpark. Vehicular access is off Lynch Street. Residential access is provided from Tweed and Lynch Streets.

Clause 34.02-1 (use of land for accommodation in a Business 2 Zone).

Clause 34.02-4 (construction of building and works in a Business 2 Zone).

Clause 52.06 (reduction of car parking requirements).

Clauses 10, 11.01, 11.04, 15, 16, 17, 18, 19, 21, 21.05, 21.06, 21.08, 21.11, 21.12, 22.03, 22.10, 34.02, 52.06, 65.

The land comprises several lots and an approximate area of 1645sqm. It is on the south-west corner of Tweed and Lynch Streets Hawthorn. It contains a brick warehouse and other industrial buildings. Along part of the south of the property is a private laneway - Tweed Place. Burwood Road is located to the south of the adjoining allotment.

The Tribunal inspected the site and locality on 1 April 2011.

1. This is a review of Conditions 1(a), (c), (i), (o) and 24 imposed by Council on planning permit PP10/00936.
2. In summary Council wishes one storey of the proposed building to be removed, resulting in 6 habitable floors and 95 dwellings; a 1.5 x 1.5 metre splay incorporated on the Lynch and Tweed Street corner of the building; and the addition of 15 car spaces to provide 115 cars on site.
3. Council acknowledged the site's proximity to the public transport network, shopping, community and educational facilities. There was no dispute that the urban and planning policy context of the subject site support higher density development.
4. Council's officers initially recommended the issue of a permit with conditions, including the removal of one floor to reduce the height of the building. Council's traffic engineer supported the waiver of on-site visitor parking. Subsequent to the preparation of the officer's report, 5 objections to the application were received. The recommendation was changed from the issue of a Planning Permit to the issue of a Notice of Decision to Grant a Permit, in order to preserve third party appeal rights.[1]
5. The Tribunal must decide whether or not the contested conditions should remain on the permit. The key issue to be addressed is whether the building of the height proposed and number of car spaces provided represents an acceptable planning outcome.
6. Having considered all submissions with regard to the applicable policies and provisions of the Boroondara Planning Scheme, assisted by my inspection, I determine to vary the Council's decision. My reasons follow.

Is the proposed height of the building an acceptable response to existing circumstances and the planning context?

1. The review site is not affected by any built form overlay controls under the Boroondara Planning Scheme. It is located on the Burwood Mixed Use Corridor, an area identified for higher density residential development in Clauses 21.07 and 21.12.
2. Council and the Applicant were in agreement about the attributes of the site which make it a candidate to advance urban consolidation. Consolidation is sought by policy not only to reduce the need for new dwellings in greenfield outer suburban areas, but also to ease pressure on established suburban areas where existing lower built form is highly valued by residents.
3. Higher density development sites where there are few amenity impacts are a rare and valuable commodity particularly in the middle ring suburbs such as Hawthorn. Mr Biacsi's evidence directed the Tribunal to the site's zoning, location, lack of built form controls, access to public transport, proximity to open space and the nearby Glenferrie Principal Activity Centre.
4. Council did not dispute these attributes saying the proposal "stacks up" well against the principles and guidelines in Clause 15 and in the Guidelines for Higher Density Residential Development.[2] It sought, however, to rely on Amendment C69 as a seriously entertained planning document awaiting ministerial approval. Council advised that, when approved, Amendment C69 will incorporate:
   • a new Clause 22.15 West Hawthorn Policy;
   • a new schedule to the DDO and apply it to the subject site and surrounds (DDO13); and
   • the West Hawthorn Urban Design Framework as a reference document.

Amendment C69 seeks to implement the strategic work undertaken in the West Hawthorn Urban Design Framework (WHUDF) within the Burwood Road Corridor. The proposed DDO13 will include a number of requirements which would support the proposed development, but also a mandatory 18 metre maximum building height requirement for the review site. The WHUDF vision for the Lynch Street Precinct 4A is one of greater intensity of development due to its minimal constraints. It notes that because of the lack of potential for tall development on the Vic Track land opposite, development on the southern side of Lynch Street may "step up substantially".

1. Mr Biacsi's evidence was that in relation to height, the WHUDF was primarily concerned with limiting shadow on the southern footpath of Burwood Road and in establishing street wall heights and setbacks which would reduce the visibility of buildings when viewed from Burwood Road. As Precinct 4A is earmarked for greater intensity of development, Mr Biacsi considered that Council's proposed height limit of 18 metres is inconsistent with the vision of the WHUDF.
2. Mr Rantino opposed any breach of the proposed 18 metre mandatory height limit sought by Council submitting that, such a breach would "create uncertainty and confusion". It seems to the Tribunal that it could be argued were the proposed 18 metre height limit in place, Council has already done that by its preparedness to grant a permit with a height of 19.25 metres in recognition of the constraints imposed by Melbourne Water's requirements.
3. Mr Biacsi's evidence contained a diagram produced by Council officers for the Council's urban planning committee. It demonstrated sight lines from the south side of Burwood Road for various street wall height scenarios. With a 10 metre wall height at Burwood Road, a height of 22 metres is reached about mid block between Burwood Road and Lynch Street, very close to the rear boundary of the review site.
4. At the hearing the Applicant submitted an elevation of Lynch Street from Glenferrie Road to Power Street. It identified that there were already a number of buildings apart from this one higher than 18 metres. Whilst agreeing with Council that Amendment 69 is seriously entertained, I must give weight to the fact that it is does not form part of the Boroondara Planning Scheme. Neither is there any indication when it will be approved by the Minister. I am not persuaded either that an 18 metre height limit implements the WHUDF as it applies to this site, nor that, at an overall height of around 22.5 metres, this building will affect the aims sought for Burwood Road in the WHUDF.
5. It is evident from this discussion that the WHUDF is an important reference, but not the principal determinant of future built form in this area. Even it were, for the above reasons and the evidence put to me, I find that the height of the proposal represents an acceptable outcome in respect to its context and location having regard for the future direction of the area as set out in the Planning Scheme at Clauses 21.07, 21.08 and 21.10. I am satisfied that the proposed height is acceptable.

Are there any on or off site amenity issues generated by the retention of the top floor?

1. The Safer Design Guidelines for Victoria[3] support buildings and active frontages that overlook public open spaces and parks. The uppermost floor will add to the informal surveillance of the railway line and Grace Park beyond.
2. This is an area where low scale residential development is absent, so it follows that there are none of the usual amenity issues of overlooking, overshadowing and visual bulk to nearby properties. The location of the property between Glenferrie Road and Power Street is an area where views and vistas are northwards to the sporting facilities and Grace Park. The top floor will have no impact on views of landmark buildings.
3. Council's urban designer had described the building as making a positive contribution to the streetscape. At the hearing Council directed me to the sketch that appears in the WHUDF which illustrated Council's vision for Lynch Street. It shows well articulated two to three storey development with substantially increased street planting. It appears to the Tribunal that the design of this building, with levels above the third floor and divided into two smaller components, will achieve an outcome very like that sought by Council. Whether the upper two components are three or four storeys high will not in my view affect the pedestrian experience in Lynch Street. It could be said that this building will be a catalyst for the renewal of this low scale largely industrial area. I conclude that the additional floor has no unreasonable off-site amenity impacts.

Is a 1.5 x 1.5 metre splay necessary for the vehicular sight distances or pedestrian safety?

1. Council submitted that it is important that Lynch Street be as safe and as attractive as possible for pedestrians. The splay is required by Council's traffic engineers to enhance the pedestrian experience. My inspection of this T-intersection supported Ms Dunstan's evidence. Firstly, the provision of a splay would not improve driver sight lines for vehicles entering Lynch Street as the stop line is well clear of the building. Secondly, the footpaths on both Tweed and Lynch Streets are both wide enough to provide clear sight lines at this corner for pedestrians using them.
2. I find that the corner of the proposed building is acceptable as designed and that a splay is not necessary.

1. It is proposed to accommodate 100 car spaces in two basements, Council is strongly of the view that each apartment should have at least one car parking space per apartment. It agreed that the "Rescode" (Clause 55) rates are appropriate in development such as the one proposed for the review site, noting that the rates are considerably less than the requirements of Clause 52.06 and Council's parking policy.
2. The resident parking assessment under Clause 55.03-11 requires 108 resident spaces, one for each of the units.
3. Ms Dunstan's evidence was that the 2006 census data for Boroondara and Postcode 3122, which includes an overview of car ownership for flats, units and apartments, highlighted the demand for dwellings where "limited or no parking is required by residents, especially in apartment- style developments with small dwelling sizes. Significantly 84% of studio apartments and 38% of one-bedroom apartments within the Hawthorn postcode do not own a vehicle". Her opinion was that not providing a car space for three studio units and five one-bedroom apartments was supported by the census data.
4. All parties acknowledged that the site is well placed for people to travel by tram, train, bicycle or on foot rather than using a vehicle. It is an area where people have ready access to facilities and services without requiring a car. This is the type of development which provides a good opportunity to further increase public transport usage and less dependence on car based transport. The reduction in price of a dwelling which has no car parking is one way of increasing affordability in suburbs which are well provided with physical and social infrastructure. At the hearing the Applicant advised that an additional 5 spaces could be achieved by a rearrangement of the basement car park. This would provide 1 car space per dwelling, save for the 3 studio units. Given the evidence put to me I am satisfied that the provision of a 105 car spaces is acceptable.

Are 20 spaces for visitor parking required on site?

1. Grace Park Residents Association are concerned that any additional dwellings will generate more traffic into the local road network. They say local streets in particular Lynch Street are unable to accommodate further car parking. It was submitted that on-street parking is in short supply and that visitors look for car parks further into the residential areas, adding to local congestion.
2. Ms Dunstan's analysis of visitor parking demand for the development was in the order of 0.12 spaces per dwelling based on surveys of existing multi-storey apartment buildings in areas with good access to public transport. This equates to a peak demand of 13 spaces. Parking surveys undertaken by her firm indicate demand for car parking in Lynch Street was high in business hours, but considerably lower during the evening and on weekends which are the peak demand time for residential visitors.
3. Council is concerned at the cumulative effect of redevelopment. Mr Rantino argued that the WHUDF vision for the Vic Track land was for commercial and residential land and therefore the Applicant's reliance on the existing 90o parking currently available was unjustified.
4. Ms Dunstan addressed this in her evidence. She said Council's traffic engineers had not questioned the ability of visitor parking to be accommodated on street. Further, she said if the 90o parking currently partially provided on VicTrack land was no longer available, the 152 spaces would decrease by about 50%. The recently conducted spot parking survey results tabulated in her statement, indicate that if 76 spaces were removed, there are still more than sufficient spaces available to accommodate visitor parking all day Saturday and on weekday evenings. I accept the evidence.

Is the traffic generated as a result of this proposal acceptable?

1. Ms Dunstan's evidence was that the proposal will generate a daily traffic generation of 500 vehicle trip ends per day, with 50 vehicle trip ends in the peak hour. She considered this assessment to be conservative given the easy access to public transport. Her evidence was that the traffic generated can be accommodated in Lynch Street, which is classified as a Council Collector Road.
2. Council did not dispute Ms Dunstan's evidence. I find that any traffic generated by the additional floor to the development will be acceptable.

1. In relation to the design of the car park ramp, at the hearing Council agreed to the Applicant's requested amendment to Condition 1(i) relating to the ramp design.

1. My conclusion is that the proposal, including the top floor, complies with the Boroondara Planning Scheme. I have not been persuaded that the additional floor in any way leads to negative impacts on either Lynch Street or the wider area of Hawthorn. I consider that the car parking for residents is acceptable and that there are sufficient on-street car parking spaces to accommodate visitor parking. It follows that the decision of the Responsible Authority is varied as directed in the order.

[1] The participative rights of respondent objectors are limited, given third party exemptions apply under Clause 34.01. Grounds able to be pursued by residents are confined to matters such as land use, car parking and traffic, rather than buildings and works. At the hearing I accepted a submission from the Grace Park Residents Association addressing its concerns about parking and traffic. I have considered all of the material before me within the ambit of my discretion.

[2] Department of Sustainability and Environment, 2004.

[3] Department of Sustainability and Environment 2005