The order of the Tribunal is that the decision of the Responsible Authority is affirmed.

The Tribunal directs that a permit must not be granted in relation to permit application MV/16055/2003.

1 Saktek Drafting Services are seeking permission for the construction of a 4 storey building[1] with 6 offices at ground level and 6 caretakers' dwellings above each office. The dwellings are set over two levels. Ten car spaces are to be provided on the site within a semi-basement carpark. The site is located on the corner of Pascoe Vale Road and Woodland Street in Strathmore, in a commercial area opposite a train station and sporting reserve.

2 Key issues for consideration are whether the proposal has an appropriate design in terms of its overall height, appearance and presentation to the street, particularly at pedestrian level. The adequacy of carparking and the internal layout of the building including whether the dwellings will offer satisfactory levels of amenity for future occupants are further issues requiring examination. Related to this is the question of whether the dwellings can be properly regarded as "caretaker's dwellings" or dwellings in their own right.

3 These proceedings concern the Moonee City Council's ("the Council's") failure to determine the application within the prescribed time. After requiring notice of the application and receiving one objection from a neighbour, the Council decided that it would have refused the application on grounds that can be summarised as follows:

•

The bulk, scale, design, setbacks and articulation of the building are inconsistent with Clause 19.03 of the Planning Scheme;

•

Access arrangements to the carpark are not satisfactory given the existing width of the right of way;

•

The number of on-site car spaces is unsatisfactory;

•

The internal layout of the caretakers dwellings including the orientation of private open space is unsatisfactory in terms of internal amenity;

•

The distinction between the caretakers dwellings and offices is poor and do not offer an appropriate level of identity;

•

The proposal is inconsistent with the purpose of the Business 2 zone given the dominant use of floor space for caretaker's dwellings.

4 The review site is located on the north-east corner of Woodland Street and Pascoe Vale Road with frontages of 40.18 and 12.05m respectively. It has a total area of approximately 483sq.m and slopes down to the east with a fall of about 1.5m. A 3.6m wide Right of Way (ROW) runs along the east side of the site between Woodland Street and Wallace Crescent, providing access to the rear yards of other commercial premises that front Pascoe Vale Road.

5 There is a single storey brick building on the land, occupied by a panel beating business. This building is partly built to both frontages but otherwise has a large concrete parking area adjacent to the Woodland Street frontage. A number of cross-overs occupy most of the Woodland Street frontage effectively preventing kerbside parking in this location.

6 Abutting land to the north is occupied by a demolition scrap yard business ("Essendon Demolitions"). There is also a floodlit billboard sign close to the common boundary whose advertising panel faces the review site. The sign face would be concealed behind the proposed building.

7 There are other low scale commercial buildings further north. To the east of the ROW are residential properties, comprising a variety of styles with examples of brick and timber dwellings of mainly 1 or two storeys. The nearest of these being No. 56 Woodland Street and 2 Wallace Crescent, were the subject of a hearing before Senior Member Marsden[2] in November 2004 for 11 dwellings in a 3-storey building. A permit was granted for this development.

8 There are examples of multi-storey buildings that have been recently constructed including a 3-storey contemporary apartment building at 6 Talbot Road (north side of Wallace Crescent).

9 On the opposite side of Woodland Street is the Cross Keys Reserve, a large public open space area and next to it a showroom for plumbing supplies. A hotel is located to the west of the reserve and the Strathmore train station further west again, about 60m from the site.

10 Pascoe Vale Road is a declared main road carrying high volumes of traffic. It is signalised at its intersection with Woodland Street. Woodland Street is a secondary arterial road with a width of approximately 16.6m. The eastbound carriageway contains 2 lanes for through traffic while 3 lanes are provided for westbound vehicles.

11 This proposal is for a 4-storey building with 6 offices at ground level and 6 corresponding caretakers' dwellings on the levels above. More particularly, the following features are relevant:

•

The offices are oriented to face Woodland Street and are arranged in pairs so that three entrances are accessed from this street via a set of stairs to an internal landing.

•

The ground level offices have a floor area of 80sq.m each comprising 2 separate office area, a kitchen, WC and outdoor balcony/terrace.

•

A staircase in each provides internal access from within the office space to a caretakers dwelling above.

•

Each dwelling is set over two levels with floor areas (excluding balconies) of 133sq.m except for dwelling 6 which is 118sq.m.

•

The living, kitchen, toilet and laundry facilities are on level 2 while level 3 contains 2 bedrooms (the master with a retreat except for dwelling 6) and a shared ensuite.

•

Each dwelling has private open space in the form of balconies located on both the north and south sides of each level.

•

The semi-basement carpark with 10 spaces is to be accessed from the ROW. Storage for each dwelling, bin storage and bicycle parking areas would be provided in this level of the building.

•

The overall height of the building ranges from approximately 9.6m to 10.8m, rising with the fall of the land at its eastern end.

•

The building is built to the site's boundaries except for balconies and some recessing on level 3 along the north and east sides.

12 The building is of a 'contemporary' design with a flat roof, brick and rendered walls, feature tiled elements and glass balustrading.

13 The land is included in a Business 2 zone. An office use appears in Section 1 with the condition that "the combined leasable floor area for all offices must not exceed any amount specified in the schedule to this zone". Given that there is no amount specified in the schedule, a permit is not required for this use.

14 A caretaker's house is also an as-of-right use in this zone.

15 A planning permit is required for buildings and works under Clause 34.02-4.

16 Clause 52.06 sets out the standard carparking requirements for particular uses. The standard rate for an office is 3.5 spaces to each 100sq.m of net floor area and 1 car space for a caretaker's house. A planning permit is required to reduce the standard carparking requirements and decision guidelines are set out under Clause 52.06-1.

17 State and local planning policies relevant to this application include Clauses 11, 12, 14.02-2, 15.12, 17.02, 19.03, 21.03 (the Vision for Moonee Valley), and Clause 22.06 (Residential Design Policy).

18 In essence, the policy framework:

•

Supports a greater diversity of housing stock to meet the changing needs of households which are ageing and reducing in size while ensuring that new and existing environments achieve high standards of liveability;

•

Encourages development in locations close to public transport where people are able to live and work in their local community without a substantial reliance on car travel;

•

Recognises the need to strengthen and improve the appearance, convenience and accessibility of commercial centres, particularly strip shopping centres and to promote employment opportunities in the region;

•

Seeks to protect the intrusion of non-residential uses into residential areas; and

•

Encourages high standards of urban design to ensure that the appearance of streetscapes is protected and enhanced.

19 Clause 65 sets out decision guidelines that must be considered, as appropriate, when considering any application for permit under the scheme. Of relevance to the issues in this case are the State and local planning policy provisions referred to above, the purpose of the zone and other relevant controls, the orderly planning of the area and any effect on the amenity of the area. Of relevance also, as provided for at Section 60 of the Act, is the Metropolitan Strategy, Melbourne 2030, it being a reference document in the Scheme.

20 The parties at the hearing of the application for review relied on both written and oral submissions. A number of photographs, plans and other documents were tendered to the Tribunal and are retained on file. I also conducted an inspection of the site and its locality. I set out my findings in relation to the key issues in this Application, having regard to these submissions, the material presented at the hearing, my inspection of the site and surrounds and the policies, objectives and decision guidelines of the Scheme.

21 The key questions for consideration in this case are as follows:

a

Are the dwellings "caretaker's houses"?

b

Is the building height and design satisfactory?

c

Are the car parking and access arrangements satisfactory?

22 Mr Waldon expressed some concerns about the bona fides of the caretaker's houses. While the entry to each of the dwellings is only possible by entering the corresponding ground floor office, it was submitted that the door at the base of the staircase could be readily relocated at some stage in the future so as to provide a separate entry to each dwelling. The large size of the dwellings relative to the office component, each with 2 bedrooms and set over 2 levels were also factors that Mr Waldon said aroused Council's suspicions as to the legitimate nature of the caretaker house component. It was also submitted that the nomination of the residential component as "caretaker's houses" rather than "dwellings" may have been based on a desire by the permit applicant to minimise the required number of on-site car parking spaces.

23 I asked Mr Easton whether he had any detailed information about the nature of the future occupants of the offices. He was unable to provide any specific details other than by reference to some general examples such as a design or drafting service or other professional type consultancies. He envisaged that the dwelling and office uses might operate more in the nature of a home occupation type arrangement, which he argued would be highly suited to a site like this in a business zone. He contended that such an arrangement in this location would be preferable to locations in a Residential 1 zone where limitations on floor areas and staff numbers exist together with the potential for amenity impacts upon neighbours. Notwithstanding, he confirmed that the application as proposed is for offices and caretaker's houses.

24 In forming my view about this issue, it is necessary to firstly look at the definition of caretaker's house. This use is defined under Clause 74 of the Scheme as:

A dwelling on the same site as a building, operation, or plant, and occupied by a supervisor of that building, operation or plant.

25 I have also had regard to a number of decisions by other divisions of the Tribunal in relation to the categorisation of caretaker's houses. These include:

•

Intex Pty Ltd v City of Yarra [2002] VCAT 472;

•

Stebbins & Ors. v. City of Yarra 1998 [VCAT] 610;

•

Graphos Architects v Moreland City Council [2000] VCAT 1702;

•

Thanh Thai Architects v. City of Yarra [2000] VCAT 362;

•

Eckersley v Yarra CC [2004] VCAT 826.

26 Of most relevance to this present application are the findings of the Tribunal in the Intex case, where it was said that:

[51] There must be a nexus between the occupant of the caretaker's house and the business on the subject site. The Macquarie definition of "supervise" is "to oversee during execution or performance". ...

27 I observe in the first instance that the proposed caretaker's houses are to be on the same site as the building with which they are connected, thus being capable of complying with this first aspect of the definition.

28 Less clear is my ability to make a judgement as to whether a future occupant will in fact be occupied by a supervisor of the non-residential use in the absence of relevant information. This situation also confronted the Tribunal in relation to one of the caretaker's houses under consideration in the Intex case. In that case, the Tribunal considered the internal layout when forming a view as to the bona fides of the proposed use:

[54] I have no information in relation to the use of Shell 2 and no basis to assess the role of the caretaker's house within it. This arises as there is no tenant or prospective tenant. Few examples of possible users could be provided to me and instead, Mr Liversidge submitted that it is a matter for the market to decide based on the configuration of the space provided. As is the case with Shell 1, I accept that the internal layout of both Shells places limits on the nature of user in caretaker residence primarily as there is no separate access. [Emphasis added]

29 I adopt the approach taken by the Tribunal in the Intex case by examining the internal layout of the proposal. The critical design feature in the present case is the reliance upon access to the dwellings by entering the office floor space itself. That is, there is no separate access to the caretaker's houses. I am satisfied that this limits the ability for the residences to be used as separate dwellings unconnected to the offices beneath them.

30 In any event, I am also mindful of the need to consider the application as it has been presented before me with the expectation that the proposal will proceed on this basis. This is a principle that has been adopted by various divisions of the Tribunal in the past which I also follow. In the Thanh Thai Architects case, quoted with approval in Intex, the Tribunal said:

If residential uses other than caretakers house are prohibited in the zones in question then the Council has the full powers of the Planning and Environment Act to take enforcement action against any one who uses such premises for other than caretaker purposes. This is its appropriate course of action.

31 The Council's concerns about the size of the dwellings relative to the floor space occupied by the offices is I think, obviated by the lack of separate access to them. I also note that the definition of caretaker's house is silent on the question of dwelling size as a percentage of the non-residential component. There is no policy guidance in relation to the size of caretaker's houses, unlike some other areas such as the City of Yarra where there are differing local circumstances that might take me to a different conclusion.

32 Indeed the policy situation in Moonee Valley is one where Clause 22.06 envisages residential development (although not necessarily caretaker's houses) in business zones. The map appended to this policy for Strathmore (Clause 22.06.03) identifies the site as being within an area of "Moderate Infill potential". The replacement of non-conforming uses like a panel beaters business in a Business 2 zone with a proposal like this that enables residents to live and work in the same location are themes that enjoy local policy support. In this context I think it can be fairly said that the proposal is consistent with Council's policy framework.

Is the building height and design satisfactory?

33 Mr Waldon was critical of the building's design, drawing particular attention to its height at the eastern end, minimal setbacks and façade design and its lack of integration with the pedestrian realm both in Woodland Street and Pascoe Vale Road.

34 Turning firstly to the height of the building, it was generally agreed by the parties that this corner site in a business zone abutting a busy main road is capable of accommodating a robust design response. I also agree. Notwithstanding, Mr Waldon submitted that Council's preference is for a greater setback at the interface with residential properties on the east side of the ROW. I do not share Council's concerns in relation to this matter. I note that the recently approved apartments at No. 56 Woodland Street would be just more than 1m lower than the proposed building which is to be setback by 2m to 2.44m at the upper level along most of the eastern side. With the intervening ROW I am satisfied that this provides an acceptable transition in height. Even in the absence of permission for development on this neighbouring site, I would find this proposal acceptable along this eastern interface in terms of its height and setbacks given the attributes of the site which I have described above.

35 In relation to the building's design, particularly the handling of the façade and relationship with the pedestrian realm, I find that the proposal is not satisfactory having regard to the matters set out under Clause 19.03 of the Scheme (Design and Built Form). This policy has objectives that seek to achieve high quality urban design that amongst other things:

Enhances livability, diversity, amenity and safety of the public realm.

36 I find that the handling of the ground floor level façade does not promote a satisfactory level of integration with Woodland Street for pedestrians. Articulation of the façade at this level is, in my view, not well resolved. Carpark ventilation grilles face the street which I think is a poor response. Above them are windows that are substantially elevated above footpath level at the eastern end, offering little visual connection with the street. This appears to be due largely to the design of the carpark level and slope of the land such that the sill height of windows extend up to 1.9m above footpath level. Entrances are narrow and provide poor levels of shelter and address. I also consider that the 600mm wide canopy would not offer any meaningful shelter. Although Mr Easton agreed that the floor level of Office No. 6 could be lowered slightly, I do not think this would go far enough in addressing the sum of these concerns. Overall, I find that these matters do not appropriately respond the design principles for "Pedestrian spaces" set out in Clause 19.03, namely:

•

Design of the relationship between buildings and footpaths and other pedestrian spaces, including the arrangement of adjoining activities, entrances, windows, and architectural decoration, should enhance the visual and social experience of the observer.

37 While I think there is some scope for greater articulation of the Pascoe Vale Road elevation at ground level at its northern end, this elevation is less problematic than its Woodland Street counterpart.

38 In relation to the treatment of the facades of levels 2 and 3, I find that the design appears to be quite "busy" and seems to lack cohesion. The design also seems, in my view, to be overly reliant upon the application of materials rather than recessing of walls to achieve articulation.

39 I find that these detailed design matters weigh against the grant of a permit and are fatal to this application.

40 The Council expressed some concerns about the orientation and thus the amenity of both the north and south facing balconies. In response, Mr Easton advised that the north facing balconies are deliberately limited in size and are secondary in nature to those on the south side given the presence of the demolition yard (and floodlit billboard) to the north. He also referred me to decisions by other divisions of the Tribunal (e.g. Trisand Pty Ltd v Moonee Valley CC [2005] VCAT 612.) who have found the southerly orientation of balconies as the main area of private open space to be acceptable in some circumstances (such as site orientation, the capturing of key views, potential for adverse impacts by neighbouring land uses and the like).

41 I do not agree with Council that the balconies on the north side should be increased in size by setting back the building on the north side over both levels. It is not only difficult to imagine redevelopment of the demolition yard in the future but in the interim, this interface would not offer future residents a particularly good level of amenity. Thus, I am not overly troubled by the placement of balconies on the south side in this instance noting also the opportunities for angled views towards Cross Keys Reserve and the west and easterly access to sun in the case of Units 1 and 6 respectively. I would strongly recommend however, that in any redesign the balconies should be oriented with their long sides running east-west on Level 2 together with the setting back of Level 3 above. I say this given that at present, a substantial portion of the balconies are overhung by the retreat area on Level 3 - a situation which I regard as undesirable in the context of the balconies' southerly orientation. While some shelter is desirable I think the extent of overhang unreasonably and unnecessarily shades these balconies.

Are car parking and access arrangements satisfactory?

42 Council raised concerns with the adequacy of carparking on the site, submitting that no reliance on any parking credits associated with the panel beating use should be made, given the complete redevelopment of the site. Council's doubts about the legitimacy of the caretaker's houses also seemed to form the basis for their concerns.

43 To satisfy the standard carparking requirements under Clause 52.06, 22 on-site car spaces would need to be provided on site, comprising 1 car space each for the caretaker's dwellings and 16 spaces for the offices. I think it is reasonable to assume that parking demand for the office use will be partly met by the provision of car parking for the occupants of the caretaker's houses. I also think it is reasonable to make some allowance for visitor parking on-street. Some allowance also needs to be made for the re-instatement of on-street parking spaces in front of the site (estimated to be between 3 and 5 spaces in Woodland Street) and the site's proximity to the railway station.

44 Although I think that the number of on-site car spaces will not fully meet the parking demand generated by non-caretaker staff, there appears to exist spare capacity along non-residential frontages for long term parking. This is despite reasonable competition from others, perhaps train commuters. Notwithstanding, during my inspection on Friday 16th December at 11:00am, I observed that there were 10 unrestricted vacant spaces on the south side of Woodland Street (in front of the Reserve) and a further 15 spaces in the lane area on the west side of the Reserve.

45 In this context, I am satisfied that a reduction in the standard carparking rate is warranted given the particular circumstances of this case.

46 There were no serious concerns raised by Council in relation to the layout of the carpark. I must however remark that I have some reservations about the stair arrangement that provides access to the ground level landings in terms of security and surveillance. A person could it seems, walk off the street and down into the basement without having to pass through any doors. This aspect of the design requires further resolution to ensure that a satisfactory level of internal security and address is provided. I also observe that the arrangement is not conducive to persons with limited mobility.

47 Turning now to the access arrangements, Mr Waldon submitted that the width of the ROW would not be adequate to cater for the volume of traffic accessing this and other sites. He referred also to the recent approval of the apartments next door who would also be fully reliant on the ROW for 20 car spaces. He tabled a letter (dated 8 July 2004) from Vic Roads to whom the application had, it seems been erroneously referred, given that Woodland Street is not in a Road Zone Category 1. In any event, as well as commenting on ramp grades, the letter suggests that:

In order to reduce conflict and increase the safety at the intersection of the R.O.W. should be increased to 6.5 metres for a minimum of 6 metres.

48 When I asked him, Mr Waldon advised that Council's engineers did not have any concerns with the width of the ROW until seeing VicRoads' comments. But it seems officers have now had a change of heart and advised Mr Waldon verbally that widening would be desirable.

49 I have not been provided with any evidence as to existing or projected traffic volumes in the ROW that might lead me to conclude that its width is unsatisfactory. My own observations during my inspections on 2 separate occasions lead me to conclude that the ROW is not, at least at the present time, heavily trafficked. As a matter of fairness I also question Council's submission of requiring the permit applicant to widen the ROW thus allowing its use by the broader public to the benefit of all users. In any event, I observe that there are 2 points of access to the lane allowing the dispersal of traffic in 2 possible directions. I find that this is a factor that weighs in favour of the existing width and find no basis to refuse the application for this reason or indeed to require a widening of the ROW.

50 For the reasons I have set out which primarily relate to the design of the building, the decision of the Responsible Authority is affirmed.

51 I will direct that no permit is to issue.

[1] The carpark level constitutes the fourth storey of the building given that it protrudes out of the ground by more than 1.2m - (see definitions under Clause 72 of the Scheme).