The Tribunal directs that the permit must contain the following conditions:

1 Before the development starts, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies provided generally in accordance with the advertised plans but modified to show:

i

Reinstatement of the levels, grades, widths and landscaping in that part of the Warner Street spine that is contained in Landscape Concept Plan Dwg No. L/D 302236 04 dated September 2004 to the levels, grades, widths and and landscaping illustrated in the Landscape Concept Plan Dwg No. L/D 302236 01 (Rev 02) dated September 2003;

ii

Extension of the above Warner Street spine into land to its immediate south to provide a permanent two metre wide landscaped garden bed with shrub and canopy tree planting. This two metre wide garden bed may include gaps in order to facilitate access, whether vehicular or pedestrian, to the southern portion of the site;

iii

No vehicular access through the pedestrian portion of the Warner Street spine between the western edge of the northern basement car park entry and the eastern edge of Building B;

iv

All balconies to be a minimum of 8 square metres in area;

v

All dividing walls between balconies to be a minimum 1.7 metres high, fixed and solid;

vi

The basement to be modified to allow a garbage truck to enter and leave the site in a forward direction;

vii

New boundary fencing to have a height of 1.8 metres from natural ground level;

viii

Location of car park exhaust fan outlets;

ix

The location of letterboxes;

x

Screening of all dwellings (windows and decks) where they overlook windows or the private open space of surrounding properties within a 9 metre radius in compliance with standard B22 of clause 55.04-6 of ResCode;

xi

Tandem spaces allocated to the one apartment;

xii

The Visitor Intercom Panel relocated to the right hand side allowing direct and convenient access for drivers of entering vehicles;

xiii

Cars exiting the site via the Warner Street exit must be provided with an angled clear zone of 2.0 (width) x 2.5 (length) to ensure that clear sightlines are provided;

xiv

The ramp width to be a minimum of 5.5 metres where unconstrained and 6.1 metres where there are adjacent kerbs or walls over 150mm in height;

xv

Car spaces next to walls to be 2.7 metres wide to accommodate door openings;

xvi

All ramps at the entrance and within the car park to comply with AS 2890.1-2004;

xvii

Blind aisles to be extended by a minimum of 1.0 metre beyond the last parking space as shown in AS 2890.1-2004 Fig. 2.3;

xviii

Clarification of how difference in the level of the ramp and the pedestrian path from Building C to Warner Street will be resolved and the provision of any pedestrian protection as required. This pedestrian protection is not to detrimentally impact sight distance;

xix

The visitor car spaces line-marked a different colour;

xx

The submission of a fencing plan for Elizabeth and Ashley Streets and all internal fences;

xxi

The submission of a Tree Management Plan to accord with condition 4;

xxii

The submission of a Landscape Plan to accord with condition 5;

xxiii

The provision of 50,000 litre stormwater retention tank/s to the satisfaction of the Responsible Authority.

2 The development allowed by this permit and shown on the plans endorsed to accompany the permit shall not be amended for any reason without the consent of the Responsible Authority.

3 Prior to the commencement of the development hereby approved detailed plans must be submitted, approved and endorsed by the Responsible Authority showing a directional signage system in the basement car park and at ground level to all building entrances on the site.

4 Prior to the commencement of the development hereby approved a detailed Tree Management Plan (TMP) must be submitted and approved by the Responsible Authority generally in accordance with the Galbraith & Associates reported dated 7 October 2003, amended to relate to the subject proposal only, but also including the following protection for any street trees at any frontage to the site:

i

A Tree Protection Fence will need to be established around the street trees prior to the commencement of any work on this site. The fences must be erected from edge of footpath to back of kerb and be 8 times the DBH (diameter at breast height) away from any other street trees on either side of the street tree being fenced or to a vehicle crossing, whichever is the closer.

ii

No trenching or excavating is permitted within the fence.

iii

No storage of materials, vehicles, etc. or dumping of waste is permitted within the fence.

iv

The tree protection fence must be at least 1.2 metres high and constructed using steel posts with wire panels. Hazard tape must be placed around the top of the fence and if star pickets are used when constructing the fence there must be an appropriate safety cap on top of all posts.

v

The following worded sign must be attached to the fence, "Tree Protection Fence - no excavating or trenching, no storage of materials or waste". The sign must be weatherproof and at least 600mm x 300mm in size with professional lettering 75mm in height.

vi

The area within the fence must be mulched with woodchips to a depth of 75mm to 100mm.

vii

The trees must be watered (50 to 100 litres) on a fortnightly basis during the summer months or as requested by Council.

viii

No pruning of the street tree is permitted. Any requests for pruning must be referred to Council.

The TMP must be signed by both the arborist and the builder/developer prior to it being submitted to the Responsible Authority for endorsement.

5 Prior to the commencement of the development hereby approved a detailed landscape plan generally in accordance with Landscape Concept Plan Dwg No. L/D 302236 04 dated September 2004 as modified by condition 1 above must be submitted and approved by the Responsible Authority. The works shown on the endorsed landscape plan must be carried out and completed within 3 months of the completion of construction to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

6 Prior to the commencement of any development, the owner of the land must enter into an agreement with the Responsible Authority to provide that:

i

A bond of $20,000 must be deposited with the Responsible Authority. This bond is refundable to the developer two (2) years after occupancy of the development, subject to the retention of trees as nominated in the updated Galbraith & Associates report dated 7 October 2003 as per Condition 5, plus the street trees in Ashley Grove opposite the site, in good health and condition. The Responsible Authority will assess the trees at this time and may withhold all or part of the bond depending on the trees' health and condition.

ii

A pedestrian carriageway will be created pursuant to an s.173 Agreement, connecting Warner Street to Elizabeth Street and Ashley Street to the Warner Street extension, generally to follow the proposed Warner Street through link shown on the endorsed landscaping plans.

iii

The pedestrian carriageway must be open to the public at all times, except during construction periods on either half of the subject land.

iv

The pedestrian carriageway must be constructed at the owner's cost and to the satisfaction of council.

v

The maintenance and liability for the carriageway is the responsibility of the body corporate of the development.

7 Before any works and development hereby permitted is commenced, the owner of the land must enter into an agreement with the Responsible Authority pursuant to the Planning and Environment Act 1987, section 173. This s.173 agreement must provide that a pedestrian link open to the public at all times (except during construction periods on either half of the subject land) must be created connecting Warner Street to Elizabeth Street, and connecting Ashley Street to the Warner Street extension, in accordance with the pedestrian thoroughfare shown on the above endorsed landscaping plans. A memorandum of the Agreement must be entered on title and the cost of the preparation and execution of the Agreement and entry of the memorandum on title must be paid by the owner.

8 The drainage of the site shall be to the requirements of the Responsible Authority and the discharge of water from the land affected by this permit shall be controlled around its limits to prevent any discharge onto any adjacent property or street other than by means of an underground pipe discharged to a point nominated to the satisfaction of the Responsible Authority.

9 Prior to the commencement of any building works, the existing Council and easement drains must be relocated to the satisfaction of Council. A formal application for consent to build over the subject easements must be made to Council's Building Control Unit. Upon completion of the new relocated easement drains, the owner must at its cost take all steps necessary to have the redundant drainage easements removed.

10 The owner must at its cost construct a new easement drain to collect the stormwater discharge from 18 Elizabeth Street and the west leg of Warner Street adjacent to 12 Elizabeth Street. A design for the easement drains and any associated outfall drain required by Council must be submitted for the approval of Council. The drains must be constructed to the satisfaction and under the supervision of Council. Council's standard plan checking and supervision fees will be applicable. The new easement drains must be connected to Council's drainage network to the satisfaction of Council.

11 New property drain outlets must be provided for all neighbouring Elizabeth and Malvern Road properties and all existing neighbouring property drains must be connected to the new easement drains to the satisfaction of Council.

12 The owner must at its cost create new 1.8 metre wide drainage easements in favour of Council over the new easement drains to the satisfaction of Council. All buildings and structures must be clear of the new drainage easements. The owner shall pay all costs associated with the provision of the easement drains, outfall drain and creation of the drainage easements.

13 The specific details of the construction of the carriageway including the width, material type, grades, location and any other relevant detail must be submitted to Council's Infrastructure Unit for approval.

14 Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done at the cost of the owner and subject to the relevant authority's consent.

15 Air extraction fans, air conditioning and all other plant and equipment installed on the subject buildings shall be baffled in accordance with the requirements of the Environment Protection Authority. Ventilation systems shall be designed and installed in accordance with relevant Australian Standards to the satisfaction of the Responsible Authority.

16 Any external lighting must be designed, baffled and located to suitably manage any adverse effects on adjoining land to the satisfaction of the Responsible Authority.

17 Prior to the commencement of any buildings and works allowed by this permit the owner and/or developer must submit a Construction Management Plan to the satisfaction of the Responsible Authority. The Construction Management Plan must include details on how the construction will be undertaken so it has minimal impact on the environment. Details to be provided in the Construction Management Plan will include, but are not be limited to:

i

Full work schedule/construction management plan for each individual stage to ascertain impacts on surrounding properties;

ii

Public/worker access and safety issues;

iii

Hours of construction activity (including at what stage "out of hours works" are proposed and what type of works are to be conducted outside the hours of operation);

iv

The location of hoardings, hoists and workers' amenities;

v

The location of public precautions, loading zones, site sheds, materials, cranes and crane/hoisting zones, gantries and any other construction related items or equipment to be located in any street;

vi

Details as to how traffic and pedestrian safety and amenity will be controlled within the vicinity of the site and its surrounds;

vii

The provision of a traffic management plan, including detailed plans that show all items to be placed on any street during all stages of construction in accordance with approval by the responsible Building Surveyor, entry and exit points for construction vehicles (including temporary and permanent vehicle crossings), traffic management during construction including road closures/road occupation/footpath closures, work zones/construction zones to accommodate vehicles and deliveries;

viii

Service connections/road and footpath openings and anticipated impact on public land during the connection of different services;

ix

Measures to be used to protect Council infrastructure from damage;

x

Existing services and environmental management;

xi

A list of all environmental hazards that the activities on-site pose eg; contaminated soil, materials and waste, dust, stormwater contamination from run-off and wash-waters, sediment from the site on roads, construction noise, hours of operation, vibration, washing of concrete trucks and other vehicles and machinery, spillage from refuelling cranes and other vehicles and machinery etc;

xii

Protection measures that will be undertaken to minimise the risk of the above hazards being realised;

xiii

Regular monitoring/inspections of the above protection measures;

xiv

Identification as to who will be responsible for managing all of the above issues; and

xv

Anticipated staging of the development.

The Construction Management Plan must be approved and endorsed by the Responsible Authority prior to commencing construction and all buildings and works must be carried out in accordance with the approved Construction Management Plan.

18 All wastes generated from demolition, site preparation and construction stages shall be disposed of appropriately in accordance with the requirements of the EPA to the satisfaction of the Responsible Authority.

19 Prior to the commencement of development, the applicant must submit a waste and recycling management and collection plan to the satisfaction of the Responsible Authority. All garbage and recycling collection from the development must be managed and conducted so as not to prejudicially affect the amenity of the locality by reason of appearance, noise or odours. The collection of garbage from the site must be carried out in the basement only and must only be carried out between the hours of 8.00am to 7.00pm, Mondays to Saturdays. The collection of garbage must not be carried out at any time on Sundays. When approved the plan will be endorsed and will then form part of the permit. Waste collection from the development must be in accordance with the plan, to the satisfaction Responsible Authority.

20 All services to the site and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.

21 This Permit will expire if:

•

The development is not started within 2 years of the date of this Permit; or

•

The development is not completed within 4 years from commencement of construction.

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.

22 No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drainage system.

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

•

Mr Stephen Hunt, Traffic Engineer, of Grogan Richards Pty Ltd

•

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

•

Mr Robert McGauran, Urban Designer

•

Mr Stokes, Landscape architect

Mr Nick Tweedie for the Malvern Preservation Group Inc. Messrs Bruce Miller of counsel, Russell Smith; Grant Stevens and John Palfreyman appeared in person.

1 These proceedings relate to the development of part of a large parcel of land situated some 40m north of the Malvern Road Activity Centre. The total parcel comprises 1 hectare in area and has three street frontages:

•

to Elizabeth Street (41.5m);

•

to Warner Street (15m);

•

to Ashley Grove (18.5m).

2 The site was used for many years for the purpose of accommodating the elderly. It contains a number of buildings, now disused, that range in height between 1 and 3 storeys. Access is available to the site from both Elizabeth Street and Warner Street.

3 Prior to the previous occupation of the site for elderly accommodation, Warner Street ran through it in an east-west direction, connecting Meredith Street to the east with Elizabeth Street to the west. The portion of Warner Street traversing the review site was formally discontinued many years ago.

4 During 2003, the applicant sought a permit to develop the whole of the land for the purpose of constructing 177 units with associated basement car parking and a small gymnasium. The application was refused by the Responsible Authority and a review sought. A hearing took place over 11 days in late 2003. On 29 January 2004 the Tribunal (constituted by the same members as in the present proceedings) delivered an interim determination in which it set down possible parameters for a revised development of the site.

5 The hearing reconvened in June 2004. The applicant had prepared two sets of plans which became known as Option A and Option B. Option A was said to comply with the Tribunal's suggested alterations. Option B was said to comply with the spirit of the Tribunal's directions but included a number of changes that had not previously formed part of the discussions.

6 In the face of strenuous opposition from both the Council and the objectors, the Tribunal required the applicant to choose which option it wished to pursue. The applicant elected to pursue Option B.

7 Following a further hearing on 12 July 2004, the Tribunal dismissed the application for review. It held that Option B introduced new negative elements and failed to satisfy the Tribunal's earlier criticisms.

8 It is important to note that, in its interim decision, the Tribunal expressed general satisfaction with the low rise (up to three storeys) elements of the proposal. These elements were contained in Buildings A to D which were to occupy the northern portion of the site. The Tribunal's main criticisms were directed towards the taller buildings E, F and G that were to be constructed on the southern portion of the land.

9 The applicant now seeks a permit to develop the northern portion of the land, that is, all the land south of the Warner Street spine, save for a small incursion into the northern portion at the eastern end to facilitate the movement of vehicles. The four buildings are almost identical to buildings A - D of the earlier proposal save for the provision of a separate bicycle area in the basement, and the detailing of mechanical plant and equipment on the top of each building.

10 It was substantially the southern half that led to a refusal last time. Objectors charge the developer with leaving it blank, or in the too hard basket. The developer responds that it is economic and sustainable planning to deal expeditiously with a discrete and acceptable proposal.

11 Were this northern half a discrete proposal, completely disconnected to or from the southern half, we may have been tempted to deal with it in isolation to what may happen due south. But the application for the northern half did not start out so discrete at the commencement of the hearing. The southern half relies on the northern half, at least for its access, and also impacted in other ways, as we now illustrate.

12 The building envelopes for Buildings A, B, C & D have not changed from those we considered in our interim[1] and final decisions. But what has changed is the interface with the southern half of the development and the Warner Street Spine.

13 It should be noted here that a landscaping plan was prepared by Mr M Stokes, a Landscape Architect, and this formed part of the documentation for the original proposal. In its first decision the Tribunal expressed general satisfaction with that plan. At the time the applicant lodged its Option B plans, the landscaping plan was slightly amended to accommodate various changes proposed to the development. Significantly the Tribunal gave little consideration to the second landscaping plan which, it considered, could not possibly assist in remedying the concerns that had been identified, and which formed the basis for its decision to refuse the application. However, the landscaping plan upon which the applicant now relies is a third landscaping plan that contains a number of modifications to the Warner Street spine.

i

The deletion of three Chinese elms at the western end of the Warner Street spine along its northern edge to make provision for a grade change to the future basement proposed for the still blank southern half

ii

The insertion of a grade change within the Warner Street spine requiring pedestrians to undergo a circuitous route through the spine in order to avoid a retaining wall to a proposed southern basement car park which commenced its grade change in the middle of the spine instead of within the basement

iii

The deletion of one Chinese elm and grassed area at the eastern end of the Warner Street spine along its northern edge and its replacement with hard paving for swept path turning circles for garbage and furniture trucks at the eastern end

iv

The deletion of landscaping to the entire southern edge of the Warner Street spine.

15 It was put to us that the purpose of the changes was to accommodate:

i

what would be designed for the southern half, in particular future basement parking entry at the Elizabeth Street end

ii

garbage/furniture trucks at the Warner St end.

16 The application was advertised and attracted 170 objections. These can be very broadly summarised as follows:

•

excessive bulk, scale and density;

•

poor internal amenity;

•

insufficient car parking;

•

inadequate landscaping;

•

increased traffic volumes in the surrounding streets.

17 The Council's Planning Department prepared a comprehensive (50 page) assessment of the proposal. The application was also referred internally for professional assessment by Council's Urban Designer and its "Traffic and Transport" Unit. Both supported the proposal, as did the Council's town planners. The Town Planner's report concludes as follows:

The development's scale, height, setbacks and bulk are responsive to local neighbourhood characteristics. This is highlighted by the extent of the proposal's compliance with ResCode.

The proposed buildings are highly articulated and through the use of a variety of elements and materials will comfortably fit in with the mixed architectural style of the area.

The height of the buildings marginally exceeds the nominated height in ResCode but fits into the area, especially the Elizabeth Street built form.

The car parking numbers and layout, including the visitor car parking spaces, subject to modifications as per conditions, are considered satisfactory and the street network is considered to be able to accommodate the additional traffic.

The four proposed buildings have been assessed in detail with some modifications as per the conditions below are considered to be acceptable as they are sympathetic in design and scale to the prevailing neighbourhood character of the area.

18 The applicant now seeks a review of the Responsible Authority's decision to refuse to grant a permit on eighteen different grounds.

19 On the hearing all parties tabled and read written submissions. Mr Pitt SC called evidence on behalf of the applicant from the following persons:

•

Mr M. Stokes, a Landscape Architect.

•

Mr R. McGauran, an Architect and Urban Designer.

•

Mr S. J. Hunt, a Traffic Engineer.

•

Mr P. Borelli, a Town Planning Consultant.

20 All witnesses spoke to written statements of evidence that had been circulated to the parties prior to the commencement of the hearing. Each witness was subject to cross-examination.

21 It is unnecessary to summarise all that was said. The Tribunal proposes to set out its decision in two parts. First it proposes to deal with the assertion that this is a "piecemeal" application and should be rejected on that basis alone. Second, it will concentrate on the planning merits of this application.

22 Both the legal arguments and the planning application mutated during the course of the hearing.

23 The question of law originally put to us by Mr Tweedie, was that this was a piecemeal application in the strict legal sense, justifying refusal to even consider. But as the hearing proceeded, it became clearer that the application was a self contained planning unit, which Mr Tweedie urged us to reject because of policy considerations.

The Tweedie submissions on policy behind piecemeal applications

24 Initially we were attracted by Mr Tweedie's propositions, that one of the other real difficulties associated with piecemeal proposals is our inability to assess the global affect of impacts or change. The Applicant gains an advantage in that the level of change to built form, loss of existing vegetation, or impact on services and infrastructure) is incrementally diminished. The Tribunal, faced with a single component of a piecemeal application, is required to assess only the effect of that portion of the proposal rather than the real impact of the whole development.

25 Alternately expressed, the Applicant, in seeking to develop the land in creeping, incremental and piecemeal stages gains an advantage from proposing a less dramatic change. On the other hand, the community is disadvantaged in that a proper assessment of how the ultimate development of the subject land will affect character and amenity becomes impossible. Decision making is made harder, and more speculative.

26 Mr Tweedie submitted it is impossible for us to properly assess whether the change proposed in this partial development application is acceptable, without knowing what else is proposed for the remainder of the land.

27 Piecemeal applications are not disallowed on the basis that satisfactory outcomes are impossible, but rather because the process makes "good or preferable" planning decisions more difficult, and because the process becomes less fair.

28 Piecemeal applications involve the following analysis:

i

Is there any risk to orderly planning in this application by excluding a portion of land from the proposal?

ii

Is there any risk to orderly planning involving the excluded portion of the land, by excluding it from the subject proposal? Alternately, is there any constraint of future discretion in respect of the excluded portion of the land?

iii

Is there any inherent unfairness to the public in splitting proposals? This adverts to their need to fight two proposals instead of one, to incur two sets of costs, two lots of time and labour.

29 The first two considerations are matters of substance. The third is a matter of process. Case law mostly deals with questions of substance when disallowing piecemeal applications. They concentrate upon an inability to spilt consideration because the parts are integrally linked and cannot be considered separately.

30 But in this case there is no excluded portion of land strictly speaking. The whole of the land was included in this repeat application, with the southern half notated 'subject to future application'. This application can be considered as a self contained planning unit, as it contains all its ingress and egress. Unlike the strictly legal position of Pioneer Concrete (Qld) Pty Limited v Brisbane City Council & Ors[2], all its concomitant parts are contained in the one application. It does not rely upon portions that are not part of this application[3]. So the first proposition set out in (i) is not offended.

31 In respect of the second proposition (ii), Pioneer Concrete held as to the undesirability of this type of application:

"Such piecemeal applications are likely to place planning authorities or review tribunals in somewhat of a dilemma. The first application may well require assessment of the entire proposal if it is properly to be disposed of; yet the second application will remain to be dealt with on its merits as an independent matter. When it comes to be heard there will be strongly felt pressures to avoid what might seem to be conflicting outcomes if, the first application having been granted, the second were to be refused. Any detailed examination in the first application, whether by the Tribunal or by objectors, of matters which will have to be dealt with in the second is likely to be met with the objection that they are more proper for consideration when the second application is heard; but when that second application is heard it is likely to be much dominated by the outcome of the first.

32 As will become much clearer towards the very end of this decision, we have decided there is no planning risk in considering this discrete northern portion, either in respect of this application or when it comes to considering the southern portion in the future.

33 Is there any inherent unfairness in splitting proposals? If analysis of the substance tests is satisfied, that is, there would be no impediment to considering both parts separately because they raise entirely discrete and unconnected issues, or are entirely discrete unconnected proposals, then we cannot see an unfairness in dealing with them separately. Perhaps the answer is that the policy on piecemeal applications only applies to proposals that cannot be so separated or divided.

34 Any other consideration of wearing down the public either psychologically or economically, arises under a different head, that of repeat appeals.

The Tweedie submissions on the merits of the modified application

35 The following submissions were made on the merits within the altered context of excluding the southern half from the proposal, and on the constraint of future discretion in respect of this excluded southern half.

36 We will deal with the buildings and the landscape spine separately.

37 On its own merits, this smaller, halved application cannot reap the benefits of exclusion from cl. 55 Rescode, and Mr Pitt SC admits this. Only developments more than four-storeys high (excluding basement) can reap this benefit. This development now falls within the cl. 55 threshold, and any non-compliance cannot be ignored on broader planning policy grounds relating to higher buildings E, F & G that were previously part of the whole application. It is now subject to the spotlight or microscope of cl. 55. We need to assess whether it fails that scrutiny, or whether the northern half seeks to take that same advantage now without fitting into the same threshold.

Clause 22.02-3 large sites generating community benefits

38 Also on its own merits, this smaller, halved application does not enjoy the benefit of cl. 22.02-3 because of its less than one hectare size in a residential zone. We remember that the applicant especially purchased another block of land on Elizabeth Street to add to the MECWA site, to get over 1 hectare and take advantage of cl. 22.02-3. The northern half seeks to take that same advantage now without fitting into the same threshold.

39 Large sites have the advantage of providing communal benefits, such as gymnasiums, which smaller developments cannot. The previous holistic proposal provided such a benefit to its residents, but this partial one does not, nor is there anything to guarantee that the southern half will provide it. Sometimes these benefits justify overlooking other shortcomings, in the overall balance.

Multiple buildings generating freedom of choice and disabled access

40 Furthermore, the previous proposal had a mix of buildings with a mix of stair and lift access for residents, who had real freedom to choose accommodation with either option. This is no longer the case. None of these four buildings provide lift access.

41 Further, few dwellings allow for disabled access at street level, given even a few intervening steps in the pathways.

42 It was put that the mix of one, two and three bedroom units that was present in the former holistic application is absent. The large 67-unit proposal is too homogenous, failing the cl.52.02-3 test.

43 The two halves generated an excess of spaces throughout the entire proposal. The northern half now needs to seek a car parking waiver under cl. 52.06.

44 Planning permission for the northern half contains all its access ways, but requires provision for future access for the southern half.

45 The northern half runs completely between Elizabeth and Warner Streets, but discharges 100% of its cars into Warner Street alone, something that may not normally be countenanced in a stand alone application.

46 The risk is that the southern half may disproportionably discharge into one or other of these two streets, and it will be too late to do anything about it, as the northern half is a fait accompli and the southern half will reasonably argue it needs to discharge somehow.

47 Mr Tweedie submits this is one example of a constraint on future decision making, when there is no need for us to be in this position. In a holistic application, massaging can occur to both halves in the one application. That is what orderly planning is all about.

48 It is too simplistic to say that the Tribunal could simply refuse an inadequate second application, for the southern half needs to egress somehow, and to refuse would be tantamount to sterilising development.

49 Mr Tweedie pointed out that a split decision limited to the northern part only would present, as a fait accompli, a context of traffic generation in the surrounding road network that would colour consideration of the southern half. Expressed differently, we mean that the second amount of traffic generated would be a lesser addition into the entire mix than the proposal considered as a whole, skewing the statistics.

50 The southern half must discharge into the northern half's land, known as the "Warner Street spine". Looking at this proposal as a piecemeal proposal, we have no way of knowing how the southern discharge will impact upon the amenity of the northern units, but will be constrained by the fact that the southern half must discharge somehow. The risk is that the discharge will be detrimental to the northern half, but it will be too late to do anything about it.

51 The garbage collector needs to use the southern half for multiple turning movements. Without the benefit of a holistic proposal, we cannot assess how these turning movements will impact upon the southern half, nor what may be constrained in the southern half as a result of this manoeuvre. Again, in a holistic application, massaging can occur to both halves in the one application.

52 A benefit of the original holistic application was the Warner Street spine which we found to be effective communal open space and an attractive landscaped aspect for Building D's residents notwithstanding its southern aspect for residents' balconies/sole private open space.

53 Throughout the process the applicant has placed great weight on the community benefit generated by, in its own words, "providing a broad landscaped vista through the site". In a planning submission prepared by SJB Planning in February 2003, the spine was described as follows:

Accordingly, as detailed in the landscaping concept plan prepared by Tract Consultants, the open space/landscape concept is based on a recognisable pedestrian accessible landscape spine that connects Elizabeth Street and Warner Street, as the primary landscape element within the site.

This space is intended to embrace the leafy Malvern notion by way of a terraced linear landscape. Mature exotic trees are to be provided in a formal avenue, will frame terraced lawns, gravel and paved paths and grand steps which, together, reinforce a strong built form in a publicly accessible linear park, while at the same softening and filtering views towards the built form at the development's edges.

54 This is no longer the case because it has been emasculated to provide a gap for a change in grade into a proposed future southern basement. Previously it was landscaped along both sides and in the centre. A future unknown proposal may convert the southern half into a paling fence, or some other very different outlook for the northern half's residents.

55 Furthermore, the eastern edge of the spine has been de-landscaped to impose a larger paved turning circle for large vehicles (including garbage trucks) into this edge of the development. This has the effect of deleting corner screening of the three-storey D building from Warner Street.

56 In short, the configuration of the Warner Street spine has altered, not for the better, with a risk of further negative impact. This, submits Mr Tweedie, is not orderly or proper planning, and is what the 'piecemeal application' policy seeks to avoid.

57 As the Warner Street spine lies at the interface between buildings A, B, C & D, and the southern portion, we need to consider these four buildings, and then the interface. We intend to deal with them separately. In considering buildings A, B, C & D, the repeat appeal principles arise.

58 As the famous Amoco[4] dictum says:

Although the Board believes that it should deal with this appeal on its merits it also holds that, in determining the appeal, it should pay regard to the previous decision of the Board and give great weight to that decision. Public policy demands that there be some end to litigation. If applicants were to repeatedly come before the Board, perhaps seeking to exhaust the patience of the Board or even in an attempt to pick and choose a suitable division of the Board to hear the appeal, then it would be to the detriment of the appeals system. Moreover repeated appeals would impose unnecessary costs on respondent parties including, in some cases, psychological costs. One can imagine a case where a developer wears down both a Responsible Authority and objectors by repeatedly making fresh applications. This ought to be discouraged.

59 The doctrine of "repeat appeals" is founded in the comments of the Planning Appeals Board in Amoco (Australia) Ltd v Berwick CC (1983) 1 PABR 166. In that case the Board cited with approval the following passage from the decision of Watkins v MMBW (1977) 9 VPA 184 at 187:

We should also state that as a matter of principle the Tribunal should act with great caution when considering whether a previous decision should be reversed. A change in circumstances warranting a different view must be positively shown otherwise the reversal of earlier decisions would introduce such a state of inconsistency into the appeals system that chaos could occur with unsuccessful parties applying and appealing time after time.

In summary, then, the Board believes that an applicant can make repeated applications for a permit and repeated appeals to this Board. However in determining any subsequent appeal the Board should take the earlier determination into account and give it great weight. Generally speaking the earlier decision should not be reversed unless the applicant can show a change in circumstances which warrant a different view.

61 We analyse Mr Tweedie's arguments against the Rescode, cl. 22.02-3 and cl.52.02-3 tests. But first we repeat what we said in our Interim Decision about these buildings.

62 The Tribunal's analysis of Buildings A to D is contained at paras 66 - 71 of the interim determination. It stated as follows:

A number of the objectors criticised the manner in which these two storey units address the street. However, the Tribunal does not share this concern. Dwelling stock in Elizabeth Street, while of a relatively high and consistent standard, is extremely varied in terms of its appearance, age, genre and style. The contemporary appearance of these units, with a high degree of articulation, can comfortably be assimilated into this end of the Elizabeth Street streetscape notwithstanding that it is one block of units. It clearly presents in three different dwelling modules. Nor do these units raise any amenity issues in terms of nearby properties.

The units in this three level building have an east-west orientation and a minimal (2 metres) setback from the northern boundary.

The private open space of Units B101-104 face west and are somewhat constrained in size. The Tribunal gave consideration to

re-orientating the building on a north-south axis to increase the setback and to reduce the number of units at Level 1. We note however that none of the parties expressed particular concern regarding Building B and, on balance, we are satisfied that there is no compelling reason to require alterations to it. Any reorientation would have the negative consequence of greater overlooking impact upon its northern neighbour at 18 Elizabeth Street.

The only criticism of Building C came from Mr Miller who suggested first that its two storey appearance would be out of character with the Ashley Grove streetscape, and second, that some units would overlook the rear yard of the property to the north. In the Tribunal's view, neither criticism can really be sustained. Any views of the building from Ashley Grove would be tangential and softened in any event by the landscaping proposed. As to overlooking, a substantial brick garage on the neighbouring property inhibits views of its rear yard. Again we are satisfied that there is no reason to require changes to Building C.

Building D is a three level structure built over the basement carpark. Neither the Council nor Mr Rodda expressed concern regarding this component, but the objectors were critical of the fact that a mature peppercorn tree would require removal if the building proceeded in its present form. Thus it was suggested that a redesign of the south-eastern corner of Building D should be undertaken in order to preserve the tree, and to maintain an open, vegetated vista at the western end of Warner Street.

Again we do not agree with these submissions. Warner Lane (as the section of Warner Street beyond its present western termination point is to be known) will provide an attractive landscaped pedestrian route. The peppercorn tree, while offering a pleasant canopy, is not recognised formally for its botanical, historic or cultural significance, nor is it listed on the significant tree register. The tree is not in any way unique, and there is some doubt as to its life expectancy, Mr Galbraith pointing to fungal growth which, he stated, was likely to lead to its early demise or at least to the loss of a significant part of its crown.

We are satisfied that there is no reason to justify modifications to Building D.

63 It is important to identify some key issues that are identical to the original proposal.

64 First, the policy framework. In its decision dated 29 January 2004, at pages 12 - 14, the Tribunal set out its findings on policy matters and it amplified those findings under the heading "the policy context of this application", commencing at page 15. The Tribunal sees no reason whatsoever to depart from those findings. Urban consolidation remains a key objective of metropolitan planning.

65 Second, the buildings are virtually identical and there is no real change at those points where the development has an interface with the public realm. This modified proposal will meet Elizabeth Street and Ashley Grove in the same manner as did the original proposal. We will deal with the matter of the Warner Street spine later in this determination.

66 Third, in its earlier decision, the Tribunal accepted the evidence of Mr Grogan to the effect that issues regarding traffic generation had been adequately addressed. This proposal will, in fact, generate less traffic onto the surrounding road network than the earlier proposal. Despite assertions to the contrary, there is no change in traffic circumstances that would justify a departure from our previous findings. It is worthy of note that the Council's own traffic department came to the same conclusion.

67 As to car parking, resident car parking is provided in accordance with ResCode. In the previous decision, the Tribunal accepted a visitor parking rate of 0.12 spaces per unit. Mr Hunt's evidence was identical to that given by Mr Grogan. Again there is no material before the Tribunal to warrant a different view.

68 It is thus unnecessary, in the Tribunal's opinion, to revisit every aspect of this proposal, in particular, those findings where circumstances remain unchanged. Rather, in accordance with the principles expressed in the Amoco decision, the Tribunal intends to base its assessment on those matters where circumstances have changed from those that it considered exhaustively in the decisions dated 29 January 2004 and 22 July 2004.

69 We regard the following matters as issues that require resolution:

•

ResCode and the "social mix";

•

internal amenity;

•

external amenity;

•

traffic in Warner Street.

•

the treatment of the spine;

We will deal briefly with each of these matters in turn.

70 In both our previous determinations, we expressed reservations regarding the preponderance of small units. At page 20 of the first decision, we commented:

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.

It was very clear from the objectors' submissions that the local community would be satisfied if the MECWA site was redeveloped with single and two storey dwellings, even if such redevelopment was more intensive than the existing pattern of the neighbourhood. At least part of the apprehension regarding what was frequently described as "high rise development" stems from a fear that units will be tenanted, rather than owner-occupied. It needs to be said, and said firmly, that the planning system draws no distinction between the two forms of occupation. On the contrary, planning controls require that there be diversity in housing stock in order to cater for the needs of the population as a whole.

72 The fear of some objectors that the units may be occupied by tenants, or students, or persons of a lower socio-economic status than is customary in Malvern again became apparent during the course of the hearing. There is clearly a fear abroad that "affordable housing" is synonymous with social disintegration.

73 This situation has been exacerbated by a campaign of mischievous misinformation that was circulated within the neighbourhood. For example, it is simply nonsense to regard these units as being suitable for student accommodation. As Mr Pitt pointed out, "student flats" are much smaller and parking is provided at a much lower rate than with conventional development. These units have clearly been designed primarily for the single and two person households that now make up more than 40% of Victorian households. There is no reason at all to suppose that persons fitting that profile will have a deleterious impact on the social fabric of the neighbourhood. In fact, long term residents may be pleased that a relative can enjoy this smaller residence within their neighbourhood.

74 In all, 67 units are now proposed in this development, as opposed to 177 units sought by the original proposal. Of these 67, 29 would comprise two bedrooms and 38 will be single bedroom units.

75 A reduction of 110 units from the original proposal is, on any view, a significant change. While 177 small units may well have resulted in a dramatic alteration to the average age and status of the neighbourhood, the introduction of 67 units will have a far less impact. The Tribunal believes that, given the preponderance of large family houses in the neighbourhood, and the demonstrable shortage of accommodation of the type proposed, it would be wrong to refuse this proposal on the basis of the social mix. We accept the evidence of Mr McGauran who stated:

This part of the municipality is overwhelmingly dominated by single family freestanding households. The previous VCAT finding confirmed my view that the development provided increased diversity to compliment the existing housing mix. Broader review of housing needs in the city have identified the strongest growth in demand to be for smaller households, with recently published reports on habitation indicating a strong bias towards professionals, 20-35 years of age, living alone or as couples and small single parent families.

76 Whether development of the southern portion of the site will influence the social mix is a matter that can (and indeed should) be determined at the time a concrete proposal is brought forward. It would be inappropriate and premature to speculate on that question at this point in time.

77 While the taller buildings of the earlier proposal (Buildings E, F and G) provided the main focus of debate, it would be quite wrong to believe that the Tribunal did not consider internal amenity issues to be an important factor. Indeed, it should be remembered that internal amenity issues in the taller buildings played a significant part in the Tribunal's decision to refuse the first application.

78 What needs to be borne firmly in mind is that, when dealing with applications for apartment buildings, considerations relating to internal amenity are quite different from those which pertain to smaller, conventional unit developments. This is principally due to the difficulties associated with orientation; some problems in relation to southern interfaces are virtually unavoidable.

79 When assessing this application, Council's officers came to the conclusion that the standard of internal amenity was satisfactory. All units have adequate private open space, with balconies meeting or exceeding the ResCode standard. Many units have additional small balconies leading from bedrooms. ResCode does not make any requirement for the provision of publicly available open space. As always, some degree of screening will be necessary to avoid intrusions into privacy but this problem is neither significant nor extensive.

80 It was suggested that many units were not suitable for persons with limited mobility. Given that this is a sloping site, there are remarkably few ground floor units that present access difficulties. Clearly, in the absence of lift access, units on the upper levels will not be suitable for older persons or the disabled. However, the overall mix is satisfactory and it complies with all relevant requirements.

81 The Tribunal has no difficulty in concluding that the standard of internal amenity to be provided is satisfactory and comfortably meets the requirements of ResCode. It accepts Mr Borelli's evidence in this regard.

82 Externally, the development meets its neighbours in virtually identical fashion to the first proposal. There are two matters that call for comment.

83 Since the earlier application, the dwelling at No. 10 Ashley Grove has obtained a building permit to carry out a two storey extension at its rear. It was suggested that this may present some difficulties. However, given the separation distance involved between opposing windows, it is a claim that is clearly without substance. Any potential overlooking from the north facing decks of Building C can be easily cured by screens.

84 Mr Smith, the owner of the property at No. 12 Ashley Grove, also attended and made a submission. He expressed concern regarding overshadowing, and from noise emanating from the pathway that would now lead from Ashley Grove through to the Warner Street spine and beyond. Mr Smith also expressed his concern regarding the possibility of the units being occupied by "tenants".

85 The fact is that any shadowing of Mr Smith's property will occur briefly around 3.00pm at the equinox and it comfortably complies with ResCode standards. The Tribunal sees no reason to believe that a small, ancillary path will give rise to excessive noise. The fact that the units may be occupied by tenants is, of course, irrelevant.

86 There is also no reason to suppose that this development will give rise to any unpleasant consequences for the amenity of the neighbourhood. Indeed, it is noteworthy that not one objector has given any weight to the fact that a complex of old, outmoded and poorly designed institutional buildings will be demolished to make way for a pleasantly designed, contemporary residential development that fully accords with the purposes of the Residential 1 Zone.

87 There is some (albeit discreet) level of discord between the objectors in relation to the access/egress arrangements associated with this site as a whole. Those objectors who live in (or rely upon) Elizabeth Street for access argue that the Tribunal should not allow traffic volumes in that street to increase. The objectors residing in Warner Street contend that it is a quiet dead end street and, because of that, increased traffic there will be more noticeable and therefore have a greater relative impact.

88 While the previous proposal relied upon access from both Elizabeth Street and Warner Street, the present application depends exclusively on Warner Street. According to the evidence of Mr Hunt, the proposal is likely to generate approximately 335 movements per day, equivalent to 34 vehicle movements during peak hours. That figure is less than the likely generation that would have resulted had the first proposal been approved.

89 As estimated by Mr Hunt, the present daily traffic volume in Warner Street is 260 vehicles and thus a total daily volume of approximately 600 per day can be expected once the development is completed. On any view, that figure falls well short of the environmental capacity available in Warner Street.

90 It is not appropriate that we speculate on what might occur in the future, although on the limited material before us at present, it seems more likely than not that a future proposal for the southern portion of the land will generate less traffic than the original one. Once a concrete proposal emerges for the southern portion of the land, it will be necessary to assess the most efficacious way of arranging access to, and egress from the site. Inevitably however that question must be left for another day. As it presently stands there appears to be greater spare capacity available in Warner Street than in Elizabeth Street, although movements onto the main road network from Warner Street are more likely to encounter delay.

91 As we noted in the earlier decision:

It would be trite to suggest that traffic volumes in the local streets will not increase, nor that such increases will pass unnoticed. However, as Mr Pitt pointed out, increases of this kind are an inevitable concomitant of urban consolidation. The policy direction is being implemented by government in the knowledge that it carries certain implications for residential streets, and those implications must of necessity be borne by the population that resides therein. As Mr Pitt put it, it is part of the price to be paid by the community in order to curtail the outward spread of Melbourne.

ASSESSMENT OF THE MERITS OF THE WARNER STREET SPINE

92 It is really at this point that there is an interface between what we considered at the earlier application and what remains somewhat of a mystery in respect of the southern half.

93 Cross examination elicited that the consultants were given the Option B Warner Street spine and landscaping plan ("Option B spine") as the starting point for this new application, on the assumption that because we said nothing negative about the Option B landscape concept plan, that would be an acceptable starting point.

94 But further investigation elicited that the starting point was in fact Option C (a 2005 idea) and not even Option B (2004).

95 The Option C landscaped spine

i

replaced the consistent spine of canopy Chinese Elms with gaps in two places for turning circles;

ii

inserted Canary Palms to break up the spine's consistency;

iii

inserted a grade change with retaining wall in the spine;

iv

removed grassed areas;

v

removed southern landscaping in planter boxes.

96 As we explained earlier, the rationale behind this was to make future provision for a change of grade in the Warner Street spine, dependent on what was proposed for the southern half, which still remains somewhat of a mystery.

97 There were two ways we could approach the application. We could say we are unhappy on the merits with the appearance of the newly configured Warner Street spine. Since we were unhappy with making a piecemeal decision on the northern half because of what we know has to be an impact caused by the future southern half, we could refuse the application as not consisting of those elements we approved of a year ago.

98 Alternately, we thought out loud we could cure these deficiencies by imposing a permit condition requiring the spine to appear as attractive on both of its sides as originally designed. But initially Mr Pitt SC urged us not to do this as tantamount to turning a blind eye to the reality that part of this spine needs to be bereft of landscaping to allow for a grade change into the future basement parking for the southern half.

99 However, during Mr Borelli's cross examination, he obtained instructions from the developer to revert to the original Warner Street spine proposal, with no grade change within the spine itself. He also obtained instructions as to garbage collection within the basement of the northern half, again as initially proposed last year. That meant the configuration and aspect of the spine remain identical to that with which we were previously content.

100 The Tribunal is most concerned to ensure that the original concept is not emasculated. In its view, the revised landscaping proposal is unacceptable. The Tribunal is not prepared to sanction the removal of the trees proposed along the northern edge of the spine, nor the change in levels, nor the planned intrusions at the eastern end. All these changes were proposed in order to ensure that vehicular access can be provided to the remaining land to the north. However, the applicant cannot on the one hand contend that the proposal is self-sufficient while on the other, modifying it to facilitate development to the north.

101 The changes at the eastern end were designed, so the Tribunal was told, to enable the garbage truck to turn at that point and return down Warner Street in a forward direction. At present the Council's garbage truck is forced to reverse back down Warner Street after emptying the bins of Warner Street residents.

102 As a corollary of this situation, it was the intention of the applicant to utilise Council's collection service in order to collect garbage bins at the Warner Street entry point without the need to enter the basement area. However, these arrangements will lead to an increase in hard paving areas at the expense of landscaping.

103 The Tribunal believes that the balance for net community benefit lies in maintaining the landscaped spine as close as is possible to the original concept. To that end it believes that:

•

there should be no change in levels;

•

the avenue of trees along the northern edge of the spine should remain undisturbed;

•

garbage should be collected from within the basement (if necessary by private contractor) and the landscaping at the eastern end should be restored.

104 As to the landscaping along the south side of the spine, the Tribunal accepts that it is necessary for gaps to be included in order to facilitate access to the northern portion of the site. However, a 2m wide landscaping strip should be implemented along the southern border of the spine from the outset. If the timing of development of this land is such that this landscaping requires protection during construction taking place within the northern portion of the land, then so be it. The Tribunal is not prepared to adopt a "wait and see" approach.

i

The mutated application being the reversion of the spine to its original splendour

ii

additional conditions we will impose to ensure this portion stands on all fours

iii

the fact that there is no change to buildings A, B, C & D

we do not think this northern application will result in any psychological or economic disadvantage to neighbours when dealing with a future application involving the southern portion. Both portions are discrete and stand alone.

106 True, we need to impose permit conditions on this application to ensure it reverts to its original form, but that is readily done. Our conditions will also ensure that:

i

the northern half is self-contained and self-sufficient, on both sides of the Warner Street spine, no matter what is proposed for the southern half

ii

the southern half will have to take the northern half into account in its future application.

107 We do not believe that either the grounds of refusal or the grounds of objection have been made out. The Council officer's report provides, in our view, a thorough and professional assessment of this proposal and it is thus appropriate that the metaphorical shadow cast across this land for the past four years is now removed. Our findings in this matter can be summarised as follows:

•

objectors need not come before the Tribunal twice in respect of the same proposal, as the southern half will be independent of the northern half, treatable as two independent planning applications;

•

the proposal achieves a high degree of compliance with important planning policy objectives as expressed in the Stonnington Planning Scheme;

•

the proposal accords with the concept of constructing good quality, affordable housing;

•

there is no reason to reject this development on amenity grounds;

•

it is critical that the quality of the Warner Street spine be maintained and not eroded. This can be ensured by the inclusion of appropriate conditions;

•

the proposal achieves a high degree of compliance with the requirements of ResCode;

•

traffic and parking arrangements comply with planning scheme requirements and are satisfactory.

108 Accordingly the Tribunal will allow the application for review and direct that a permit issue.

[1] Rowcliffe Pty Ltd v Stonnington CC [2004] VCAT 46 (29 January 2004)

[2] [1980] HCA 1; [1980] 145 CLR 485, @ 504 per Stephen J.

[3] with the exception of a minor encroachment into the southern half for turning circles for the garbage truck

[4] Amoco Australia Ltd v Berwick CC (1983) 1 PABR 166 @ 169