The decision of the Responsible Authority to refuse to grant a permit is affirmed.

Mr Ian Pitt, Senior Counsel, of Best Hooper Solicitors, appeared for the Permit Applicant and called the following witnesses to give expert evidence:

* Mr Des Grogan, Traffic Engineer, of Grogan Richards Pty Ltd

* Mr Greg Tucker, Traffic Engineer, of GTA Consultants

* Mr Phillip Borelli, Town Planner, of SJB Planning Pty Ltd

* Mr Andrew Olszewski, Urban Designer, of Urbis Consultants

* Mr Rob Galbraith, Arboriculturist, of Galbraith and Associates

* Mr Michael Stokes, Landscape Architect, of Tract Consultants Pty Ltd

Ms S Brennan of Counsel by Direct Brief appeared for Stonnington City Council and called the following witnesses to give expert evidence:

* Mr Andrew Rodda, Town Planner, of Contour Consultants Aust Pty Ltd

Mr Paul Connor of Counsel, by direct brief appeared for the Malvern Preservation Group and called the following witnesses to give expert evidence:

* Mr David Hansen, Town Planner, of Hansen Planning Services

* Mr Peter Harrison, Horticulturist, of Peter C Harrison Pty Ltd

* Mr N R Symons, Traffic Engineer, of Ratio Planning and Development Consultants

Messrs Bruce Miller of counsel, Michael Palmer, Grant Stevens, John Palfreyman and R Wiggins appeared in person.

1 This matter came before the Tribunal for hearing during late 2003. It concerned the development of a large 1 hectare site with seven buildings containing, in all, 177 dwellings.

2 On 29 January 2004, the Tribunal issued an interim decision in which it canvassed all critical issues. This decision must be read in conjunction with the remarks made in that previous determination. In summary the Tribunal held that the site was well suited to intensive residential development and that, on proper analysis, there was considerable policy support for the proposal. However, it identified a number of defects in the proposal as presented. Rather than making an order refusing the application, the Tribunal provided a detailed list of the changes it deemed necessary to gain approval, and these resulted in a reduction in the number of units by approximately 30. The Tribunal invited the applicant to prepare amended plans. It commented that its directions would "inevitably lead to a need for other consequential changes to the plans".

3 At paragraph 55 of the interim decision, we made the following observation:

In the end result, and for reasons that we will now provide, the Tribunal has decided that the development, as presently proposed, is too intensive and should be reduced in scale. Given that the hearing occupied 9 full sitting days and two part days, that evidence was heard from 15 witnesses, and that the review site offers an excellent opportunity for a substantial development, we have decided to offer the applicant an opportunity to prepare amended plans in accordance with certain broad guidelines. That opportunity does not of course mean that automatic approval will follow. However, given the resources the parties dedicated to the proceedings, the Tribunal does not believe that the applicant should be required to start again from the beginning.

5 Our criticisms of the earlier proposal fell into three broad categories. First, concern was expressed regarding interface issues with surrounding residential properties. Second, we were critical of the ability of some units to provide a satisfactory level of amenity for future occupants. Third, we identified a concern in relation to the preponderance of one and two bedroom units, and consequently, the limited opportunity to provide for a vibrant "social mix".

6 At the outset something needs to be said regarding the process of inviting amended plans in these circumstances. In cases where the proposed proposal is generally satisfactory and the changes sought are minor or modest, the Tribunal normally leaves final adjustments to be carried out to the satisfaction of the Council, and it does not require the parties to attend a further hearing. However, in circumstances where the changes are more substantial, it is common for the Tribunal to pursue the course undertaken here, namely, to invite new plans but allow all parties an opportunity to make submissions in respect of them.

7 In this case (as in other similar instances), the Tribunal had an expectation. In its initial decision, the Tribunal clearly identified the negative aspects of the proposal. It expected those aspects to be corrected in the amended plans. It did not expect any new negative aspects to be introduced.

8 In this case, the applicant prepared two sets of amended plans, known as Option A and Option B. Option A, the Tribunal was told, generally complied with the requirements of the earlier decision. Option B, it was said, met the thrust and intent of the Tribunal's comments but introduced a number of additional changes that would result in a better outcome for the site. The Responsible Authority carried out an assessment of both sets of plans. While maintaining its opposition to the development, it expressed the view that Option B represented a better outcome for the site than Option A.

9 In the correspondence that followed, a number of objectors opposed the dual course chosen by the applicant. It was submitted that an analysis of two sets of amended plans imposed an unfair burden on the objectors, and on their limited resources. At a hearing conducted before the Tribunal on 3 June 2004, both Mr Connor and Mr Miller contended that, as a matter of procedural fairness, the applicant should not be allowed to proceed with both sets of plans but should elect which one it wished to pursue. They further submitted that Option B went well beyond the description "consequential amendments" in the Tribunal's earlier decision. After retiring to consider the matter, the Tribunal agreed with these submissions and Mr Pitt was required to elect which option he intended to rely upon. Mr Pitt elected Option B and the Tribunal granted leave to substitute those plans in place of the original plans. The hearing was then adjourned until 12 July 2004.

10 It is worth noting the lapse of three months between the time the amended plans were received by the respondents, and the ultimate date of hearing. This was, in our view, a generous period to allow assessment and to prepare responses.

11 The Tribunal does not intend to set out a detailed description of the Option B plans which provide for a yield of 165 units. Suffice it to say that those plans contained many alterations and amendments to the original proposal and the Tribunal regards many of these changes as positive. Indeed, insofar as the earlier decision sought a scaling down of the proposal at its interfaces with surrounding residential properties, Option B succeeds admirably. Although the objectors contended that some of the buildings were still intrusive, the Tribunal does not accept that argument. It also acknowledges that certain problems regarding access to units, circulation and difficulties with parking arrangements have also been overcome. The additional information supplied with respect to the lower floors of Building G is also considered to be satisfactory. However, as indicated earlier, the Tribunal did not anticipate a situation where new negative elements, previously absent, would be introduced. In that regard, several matters which we believe to be serious flaws have now emerged. Each was the subject of strong criticism by Mr Connor and Mr Miller. These matters relate to the level of amenity that future occupants might be able to enjoy. In the earlier decision we stated:

More important, we believe, is the requirement to ensure that the dwellings to be provided will offer a high level of internal amenity for future occupants. That cannot be achieved if too many units are cramped together, or have access difficulties, suffer from poor orientation or from overlooking from neighbours. We will return to these questions later in this decision.

12 At paragraphs 82-85 and again at paragraph 88, we provided a detailed analysis of our concerns. In Option B, Buildings E and F have been lowered into the ground. In other words, the level occupied by basement car parking in the earlier proposal now becomes the ground floor level for apartments in those buildings. As a result, a number of units will abut canyon-like walls. For example, at the western interface, Apartment FG07 would adjoin a 2.7m retaining wall which, in turn, is capped by a 1.8m high fence. Units FG04-07 have rear abuttal to another retaining wall, on the other side of which lie tall industrial or commercial buildings. In terms of access to sunlight and in regard to outlook, the level of internal amenity offered by these units can only be described as poor.

13 The courtyard area between Buildings E and F at AHD 30.85 is approximately 3.2m lower than the ground level of the nearest dwelling in Elizabeth Street. Again, the retaining wall in question is capped by a 1.8m high paling fence. The separation distance between the opposite-facing terraces on, for example, eg EG08 and FG04 is 10.8m. Indeed, between the two sets of plans, there has been a reduction in the separation between these buildings as indeed, has occurred between Buildings E and Building G. This results in increased periods of overshadowing in the open space areas between these buildings.

14 The next area of concern relates to the introduction of a number of units with southern orientation. Whereas, in the first proposal, south-facing units in Building E were confined to one per floor, Units EG01, 07, 08, E106, 107, E206, 207 and E306 all now have a southern orientation. Again these units will have poor solar access and an inferior outlook.

15 It was suggested that the proposed development contained fewer units with southern orientation than most "apartment type" proposals. The Tribunal does not accept that line of argument. This is not a single apartment building which inevitably has exposure to all four compass points. By breaking up the proposal into a series of separate buildings, there is an exceptional opportunity to optimise solar orientation, a key aspect of "internal amenity". Option B fails to grasp this opportunity.

16 A further area of criticism relates to the number of "single-aspect" apartments, particularly in Building G. Whereas, in the original proposal, apartments in this building generally ran on an east-west axis, a number of small units have been introduced (GG05-07, GG03-04, GG09, GG104-105, GG10, GG204-205, GG210, G305) and these have either an eastern or western orientation. Opportunities for through-flow ventilation have been lost and outlook unnecessarily restricted. Again the Tribunal believes the level of internal amenity provided to be unsatisfactory.

17 The Tribunal has been left with the overwhelming impression that internal amenity has been sacrificed on the altar of yield.

18 As a consequence, our concerns regarding the social mix of the proposal and its over-emphasis on very small units has not been overcome. In the earlier decision we stated:

It was said against the proposal that, given the area of the site, there was inadequate diversity in the dwelling stock to be provided. Rather, the objectors contended, there should be a greater proportion of three and four bedroom "family" dwellings which, it was submitted would be more consistent with the social fabric of the neighbourhood and hence, its character.

There is a grain of truth in these submissions. The Tribunal has some concern that the preponderance of one and two bedroom units will provide limited opportunities for a vibrant social "mix". On the other hand, as we have said earlier, the prevailing form of housing stock in this area is the three and four bedroom family home, and the addition of some smaller dwelling units will help to balance the situation.

19 While the average site of the units has been increased, the number of small, poorly orientated single-aspect units remains a matter of serious concern. These were the subject of criticism in the original evidence provided to the Tribunal by Mr Holdsworth. It is a criticism that remains valid.

20 While the objectors raised some other issues, we find it unnecessary to deal with them. As should be clear from the foregoing analysis, the Tribunal regards the revised proposal as unsatisfactory. We note in passing that the officer assessment of Option B paid little attention to the question of internal amenity, dealing principally with issues of built form and interface. That assessment is therefore deficient.

21 The Tribunal is left with the following dilemma. On the one hand, it is patently clear that the site is suitable for a substantial residential development, and there is strong policy support for the proposal. The devil is in the detail. On the other hand, fairness dictates that there must be an end to litigation. Both the Responsible Authority and the objectors have devoted a considerable amount of resources in pursuing their opposition to this project. The Tribunal has come to the view that this opposition is well founded. The objectors contended (and the Tribunal agrees) that it would be unfair to provide yet another opportunity to supply amended plans. In the Tribunal's view, the applicant is no closer to providing an appropriate solution that it was in December 2003.

22 For all the foregoing reasons, the Tribunal has determined that the application must be refused.