The decision of the Responsible Authority in permit application PP04/01176 is set aside. A permit is granted in relation to land at 1-3 Drill Street, Hawthorn. The permit will allow the use and development of the land for dwellings and an associated reduction in the standard car parking requirement generally in accordance with the endorsed plans and subject to the following conditions:-

1 Before the development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and three (3) copies provided, generally in accordance with the Consolidated Amended VCAT Drawings but modified to show:

(a)

Deletion of units 14 & 15;

(b)

Balconies generally with minimum area of 8 square metres, and a minimum dimension of 1.6 metres;

(c)

Signs identifying visitor car parking spaces;

(d)

A schedule and samples of external building finishes and colours;

(e)

A minimum height clearance of 2.1 metres be provided throughout the car parking areas, increasing to 2.3 metres above, and on the access pathway, to the disabled parking spaces;

(f)

Plan notations indicating that redundant crossovers be removed and kerb and channel reinstated;

(g)

Stairs shown from the internal floor level to the outdoor decks/patios/courtyards of each ground floor apartment to reflect the change in levels;

(h)

Annotations corrected to reflect that 102 car spaces are provided on site and not 103;

(i)

Tandem car spaces allocated to three bedroom dwellings;

(j)

Natural ground level is to be clearly shown and each elevation is to be dimensioned to show overall building and wall heights from natural ground level;

(k)

The south elevation of Townhouse 1 corrected to show the family room and kitchen window;

(l)

Privacy screens to the south elevation of units 7, 8, 10 & 11 to reasonably protect the privacy of properties to the south of the subject land;

(m)

Measures to ensure the stability of existing brick walls (shown to be retained) during demolition and construction;

(n)

Measures for the retention and use of stormwater.

2 The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

3 Prior to the commencement of the use or before the construction or carrying out of building and works:

(a)

a certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environmental Protection Act 1970; or

(b)

an environmental auditor appointed under the Environmental Protection Act 1970 must make a statement in accordance with Section IXD of that Act that the environmental conditions are suitable for residential use;

and must be submitted to the Responsible Authority.

Any conditions required on a Statement of Environmental Audit must be implemented prior to the occupation of any building or otherwise in accordance with those conditions, to the satisfaction of the Responsible Authority and the Environmental Protection Authority.

4 Should the proposed development be subdivided, car spaces must be allocated to the dwellings or common property as follows:

(a)

A minimum of two (2) car spaces provided for each three-bedroom dwelling;

(b)

A minimum of one (1) car space provided for each one or two bedroom dwelling; and

(c)

Those car spaces denoted as visitor car spaces on the endorsed plans allocated as common property.

5 Within 30 days of the endorsement of the plans referred to in Condition 1 of this permit, a landscape plan prepared by a landscape architect or suitably qualified and experienced person or firm and generally in accordance with the plan by Carol Frank-Mass and Associates (Drawing 2490/1 Dated 12/11/05) incorporating:

(a)

an accurate survey of all existing vegetation to be removed and retained and other natural features;

(b)

the area(s) set aside for landscaping;

(c)

a schedule of all proposed trees, shrubs and ground cover, which will include the location, number, size at the time of planting, height and spread at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;

(d)

planting required by any other condition of this permit;

(e)

paving, retaining walls, fence design details (including trellis were required), and other landscape works including areas of cut and fill and finished site levels;

must be submitted to the satisfaction of the Responsible Authority. When the landscape plan is to the satisfaction of the Responsible Authority it will be endorsed and will form part of this Permit.

6 An in-ground sprinkler system must be installed in all landscaped areas, to the satisfaction of the Responsible Authority.

7 Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.

8 All landscaping works shown on the endorsed landscape plans must be maintained and any dead, diseased or damaged plant replaced, all to the satisfaction of the Responsible Authority.

9 Temporary barricades around the existing trees on the nature-strip in Drill Street adjacent to the subject site, must be erected around such trees, to the satisfaction of the Responsible Authority prior to the commencement of any works. Such barriers must be of solid materials (such as temporary cyclone wire fencing securely positioned on the site) and must be maintained during construction operations, to the satisfaction of the Responsible Authority.

10 The owner must ensure that all contractors/tradespersons operating on the site are advised of the status of trees to be retained on the nature strip adjacent to the subject site prior to the commencement of the related construction tasks.

11 The land must be drained to the satisfaction of the Responsible Authority and all drainage works must be completed prior to the occupation of the building.

12 Stormwater drains must be connected to a legal point of discharge approved by the Responsible Authority. Drainage connections within a road reserve must be to Council's standards. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.

13 Prior to the commencement of the use, details of any car park control equipment (controlling access to and egress from the internal/basement car parks) must be submitted to, and approved in writing by the Responsible Authority. These details must include a car park control device which can be accessed by visitors to the development including clear instructions on how to operate any security system, to the satisfaction of the Responsible Authority.

14 Before the use starts or any building is occupied, area/s set aside for car parking, access lanes and driveways shown on the endorsed plans must be:

(a)

Constructed;

(b)

Formed to such levels and properly drained so that they can be used in accordance with the endorsed plans;

(c)

Surfaced with an all weather seal coat;

(d)

Line marked to indicate each car space;

(e)

Clearly marked to show the direction of traffic along the access lanes and driveways;

to the satisfaction of the Responsible Authority.

15 Car spaces must not be used for any other purpose other than the parking of vehicles, to the satisfaction of the Responsible Authority.

16 Any new vehicle crossover or modification to an existing vehicle crossover must be constructed in accordance with Council's standard details. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.

17 Prior to the completion of the development, the developer must remove all disused or redundant vehicle crossovers and re-instate kerb and channeling and the affected nature strip, to the satisfaction of the Responsible Authority.

18 All outdoor lighting must be designed, baffled and located to prevent light from the site causing any detriment to the locality, to the satisfaction of the Responsible Authority.

19 Prior to the endorsement of the plans in Condition 1, a waste management plan must be submitted to the Responsible Authority for approval. Such plan must provide details of a regular garbage collection service to the dwellings on the subject land, including information regarding the type of refuse bins, type/size of trucks, means of accessing bins and frequency of refuse collection, to the satisfaction of the Responsible Authority. Once approved, such plan must be implemented to the satisfaction of the Responsible Authority.

20 The Body Corporate must provide a regular private waste collection including a regular collection of recyclable materials from the land to the satisfaction to the Responsible Authority. Council's waste collection contractor will not service dwellings on the land. This condition must be brought to the attention of all prospective purchasers of dwellings to be constructed on the land by inclusion of a copy of the planning permit in the Vendors Statement affecting the land.

21 Collection of waste must be conducted so as not to cause any disturbance to nearby residential properties and may only occur between the hours of 6.30am and 8.00pm Monday - Saturday and 9.00am to 8.00pm Sundays and Public Holidays, to the satisfaction of the Responsible Authority.

22 All bins and receptacles must be screened from view and be maintained in a clean and tidy condition and free from offensive odour.

23 All works including earthworks, demolition and construction activity associated with the approved development is to be limited to the following hours, unless with the prior written consent of the Responsible Authority:

(a)

Monday to Friday: 7:00am to 7:00pm

(b)

Saturday 9:00am to 5:00pm

(c)

Sunday & Public Holidays: No construction

24 No trucks or heavy construction vehicles associated with earthworks, demolition or construction works are permitted to use Manningtree Road for access to or from the site, to the satisfaction of the Responsible Authority.

25 Prior to the commencement of any site works whatsoever, the owner must submit a Construction Management Plan to the Responsible Authority for approval. No works are permitted to occur until the Plan has been approved in writing by the Responsible Authority. Once approved, the Construction Management Plan will be endorsed to form part of this permit and must be implemented to the satisfaction of the Responsible Authority. The Plan must be to the satisfaction of the Responsible Authority and must provide details of the following:

(a)

hours for construction activity (including construction related deliveries to the land) in accordance with any other condition of this permit;

(b)

measures to control noise, dust, water and sediment laden runoff;

(c)

the location and design of a vehicle washdown bay for construction vehicles on the site;

(d)

the location of parking areas for construction and sub-contractors' vehicles on the site, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises and traffic flows. Any basement carpark on the land must be made available for use by sub-constructors/tradespersons upon completion of such areas, without delay;

(e)

measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan;

(f)

contact details of key construction site staff;

(g)

the location of any site sheds and the like; and

(h)

any other relevant matters.

26 All clotheslines and clothes drying on balconies must be positioned so as not to be unduly visible from any nearby street, to the satisfaction of the Responsible Authority.

27 All pipes (except down-pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the Responsible Authority.

28 No plant, equipment, services or architectural features other than those shown on the endorsed plan are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.

29 Any air-conditioning or cooling units, condensers and the like must not be located on external walls or on balconies without the prior written consent of the Responsible Authority, air-conditioning units must be located so as to be reasonably screened from view from outside the land.

30 Reticulated electricity must be provided underground to the subject land and all buildings on the land, to the satisfaction of the Responsible Authority.

31 Prior to the issue of a building permit, the owner must obtain the consents of all relevant authorities for any buildings or works, including any paving, fences and landscaping, over any easement or underground services under the control of a public authority including sewers, drains, pipes, wires or cables, to the satisfaction of the Responsible Authority and relevant authority.

32 The owner must accept all reinstatement costs in carrying out repairs to any buildings, works or landscaping over the easements should such buildings, work or landscaping be disturbed by any works undertaken by Council in the future.

33 Buildings, engineering works and fences must be maintained to the satisfaction of the Responsible Authority.

(a)

The development does not start within two (2) years of the issue date of this Permit; or

(b)

The development is not completed within four (4) years of the issue date of this Permit.

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.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mr Simon Molesworth, QC. Mr Molesworth called Mr Jim Coomes, Town Planning;

1 This is an application to review the decision of the Responsible Authority to refuse permission for the construction of dwellings in a series of two, three and six level buildings at 1-3 Drill Street, Hawthorn. The Responsible Authority issued a Notice of Refusal to Grant a Permit for the following reasons:

1. The scale, bulk and height of the proposed six storey building is excessive and would have a dominating impact upon the streetscape and surrounding area.

2. The proposal is considered to be inconsistent with the purpose of the Business 2 Zone and Council's Municipal Strategic Statement when having regard (to) the completely residential use of the land.

3. The proposed building setbacks from the southern boundary of the site are insufficiently having regard to the heights and massing of these buildings and would have a detrimental impact upon the secluded private open space areas of the residential properties to the south.

4. The proposed development would not sensitively integrate with the landscape character of the neighbourhood given that insufficient opportunity have been provided for the planting of new vegetation with spreading canopies adjacent to the southern boundary of the site.

5. Overlooking from the south facing windows of the three storey buildings would result in a loss of privacy upon the adjoining residential properties to the south and would be detrimental to the amenity of these properties.

6. The retention of the southern external wall of the existing industrial building on the site is an inappropriate way for two residential properties to relate to one another, is in contrast to the area's neighbourhood character, and would cause continuing inappropriate off-site impacts on the adjoining residential properties to the south.

7. On-site amenity is considered to be poor with balconies to many of the apartments being undersized and having poor access to direct sunlight.

8. The balconies of the apartments in the tower will overlook the secluded private open space of the apartments at ground level.

9. The style and form of the buildings at the southern portion of the site are not responsive to the built form character of the residential dwellings in Manningtree Road.

10. The frontage treatment to Drill Street and the use of high fences is not conducive to the pedestrian environment and is an inappropriate urban design response to Drill Street.

11. The basement exhaust duct is inappropriately located and would be an unwelcome visual feature.

2 The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality.

3 The subject land is located on the western side of Drill Street, approximately 30 metres south of Burwood Road. The land is occupied by the Salvation Army's printing works, comprising mostly single storey brick buildings which rise to two stories in height at the northern end of the site. The buildings have a varied industrial character. The buildings to the south of the land are set behind a car park located at the south-eastern corner of the site. A group of five large eucalypts are located along the southern boundary of the site adjacent to the car park.

4 To the north of the subject land is a retail plant nursery at 196-202 Burwood Road which comprises an open display area for plants and garden related products together with brick buildings similar to those on the subject land to the rear. To the west of the land is an office development at 186-192 Burwood Road that comprises two and three storey buildings interspersed with open car parking, with a wide frontage and access to Burwood Road.

5 To the south of the subject land is a row of detached single storey Victorian dwellings. They form a consistent streetscape to the northern side of Manningtree Road. Private open spaces, garages and other outbuildings abut the shared boundary with the subject land. These dwellings are elevated in relation to the land and views are available to and over the land.

6 The eastern side of Drill Street is a Commonwealth Government (Army) property, 210 Burwood Road. The Army property is developed with a tall two and three storey brick building, an open landscaped area to Burwood Road, and an open car park to the rear. Another Victorian dwelling occupies the north-eastern corner of Drill Street and Manningtree Road.

7 The amended application proposes the construction of 66 dwellings on the land, over a part basement car park of 102 spaces. The basement will be constructed for the most part below grade. Vehicular access is proposed via a new crossover and 6.5 metre wide ramp at the northern end of the site's frontage to Drill Street.

8 Forty-eight of the 66 dwellings will be located in a six storey building locate on the northern half of the site. The ground floor of the building will be in part elevated above the street level due to the partly raised nature of the basement at the northern end of the site. The building will have a maximum height of 18.7 metres, measured at the northern end of the eastern elevation.

9 The remaining eighteen dwellings will be housed in a series of two and three storey buildings along the southern boundary of the site. These buildings will have a flat roof construction with a variety of setbacks to the southern boundary.

10 Each dwelling is provided with an area of secluded private open space, either in the form of a ground level courtyard or one or more balconies. In addition, a communal area of public open space is provided at the fourth floor of the apartment building.

11 The land is in part within a Business 2 Zone and in part within a

Residential 1 Zone. Under the provisions of the Business 2 Zone, a dwelling is a Section 2 use, and permit is required for all buildings and works. The exemption from the third party rights under the zone provisions does not apply in this case as the land is within 30 metres of land in a Residential 1 Zone.

12 In relation to the current proposal the state and local planning policy framework seeks to:

•

Encourage urban consolidation in established urban areas;

•

Encourage development that improves housing choice and accommodates future housing needs;

•

Identify the Camberwell/Burwood Road corridor as a Primary Mixed Activity Corridor;

•

Encourage higher density residential development and non-traditional housing forms in Mixed Use Corridors;

•

Encourage office and other commercial development in Mixed Use Corridors;

•

Facilitate residential and commercial development in existing activity centres with good access to public transport;

•

Ensure that development respects the existing or preferred neighbourhood character;

•

Protect the cultural or heritage significance of the locality;

•

Achieve high quality urban design and architecture;

•

Encourage the design of energy efficient buildings;

13 In the framework plan to Clause 21.08 Commercial Sector the Camberwell/Burwood Road corridor, which includes the subject site, is noted as a Primary mixed activity corridor (industry, office, residential).

14 In relation to residential development related strategies are:

Increase residential development opportunities (including higher density development) in and around commercial centres and other strategic locations

Applying the Business 2 Zone to selected commercial areas to encourage higher density residential development to locate in appropriate locations within and around commercial centres and to encourage a variety of dwelling types and non-traditional housing forms to locate in targeted areas such as above ground floor in mixed used corridors (such as Camberwell/Burwood Road)[1]

15 In relation to office development related strategies are:

To achieve a 100% self containment rate for employment in the City. (The ratio of employed residents within the City to the number of jobs provided in it)" and "To encourage office and other commercial development within the City

Applying the Business 2 Zone to encourage appropriate office development in defined areas and precincts (particularly the Burwood/Camberwell Corridor, and on the fringe of existing shopping centres)

16 Mr Molesworth did not ask us to give weight to the fact that his client was the Salvation Army. He did however mention in his submission that the funds released by the redevelopment of the site would be used to support the Salvation Army's welfare and community programmes.

17 In this case we agree with Mr Holdsworth that there is no reason to give weight to the applicant being a major national welfare body and that the funds might support their programmes. The application is for a commercial development and there is no indication that any community benefit has been included in or considered for the proposal itself.

18 Towards the end of the hearing Mr Brown tabled amended plans which primarily sought to reconcile the design in the light of information provided by Mr Diedun in respect of the actual layout of the existing warehouse wall as it abuts the southern boundary of the site adjacent to35 Manningtree Road, and some other more minor matters. These plans had a number of drafting errors in them, the most important of which was an error in the sheet numbering/floor referencing of one of the amending sheets.

19 As a consequence of this we directed the preparation of a consolidated set of plans which would update the plans which had earlier been substituted at the direction of the Tribunal to:

•

correct obvious errors, and

•

to include the changes intended to be demonstrated by the plans tabled by Mr Brown.

20 We intended that the consolidated plans might be a basis for a conditional approval of the project, subject to further amendments. It was highly unlikely that the consolidated plans would ever be plans which could be endorsed without modification.

21 By letter dated 21 March 2006, Coomes Planning, advised the Tribunal that the plans marked Consolidated Amended VCAT Drawings had been circulated to the parties.

22 On 30 March 2006 the Tribunal received a letter from the Responsible Authority which sought to analyse the consolidated plans in considerable detail and concluded that the consolidated plans included uninvited amendments, failed to correct earlier errors, and introduced new errors. On the basis of this the Responsible Authority submitted that in accordance with the decision of the Tribunal in Rowcliffe Pty Ltd v Stonnington CC [2004] VCAT 1370, that the Tribunal should bring a swift resolution to the matter and resolve to disallow the application for review, without inviting any further amendments to the plans. This submission was supported by the Drill Street Action Group in later correspondence.

23 By letter dated Thursday 6 April 2006 from Coomes Planning, the Applicants responded to the submission of the Responsible Authority. With some relatively minor exceptions, the alleged amendments, errors and omissions were strenuously contested.

24 The Responsible Authority's application is unusual, and has very serious consequences given that the result would be that the application is dismissed, without regard to its merits. Even if we put aside for the moment the fact that most of the alleged deficiencies are contested it cannot be concluded that any of the alleged deficiencies are particularly significant, and most are entirely inconsequential as that term is used in the decisions of the Tribunal in Mentone Mansions[2] and Westpoint Corporation[3].

25 Moreover, the alleged deficiencies are essentially not comparable to the circumstances which confronted the Tribunal in Rowcliffe Pty Ltd. In our view the Consolidated Amended VCAT Drawings are sufficient for the purpose anticipated by us in making our direction. Therefore, we do not intend to accede to the Responsible Authority's request that the application be dismissed.

26 Mr Holdsworth while giving evidence essentially argued that the redevelopment of the site should result in no direct loss of amenity to the adjoining residential properties to the south. His opinion in relation to overshadowing is illustrative of this view. The proposal will result in some limited overshadowing of the properties to the south. Although, the degree of overshadowing conforms with the ResCode standard, Mr Holdsworth argues that there should be no additional overshadowing allowed.

27 We do not think that this is the correct approach. To the extent that the planning system is concerned with amenity, it is not predicated on the preservation of the status quo. Rather, the planning scheme seeks to manage the use and development of land in accordance with the strategic purposes of the scheme while achieving a reasonable or appropriate standard of amenity.

28 If the subject land was entirely within the Business 2 zone, then the standard of amenity would be that which one could ordinarily expect at the interface between a business and a residential zone. However, in this case that part of the subject land which adjoins residential properties is within a Residential 1 zone and in such a circumstance the standard of amenity which should be achieved is arguably that which could be reasonably be expected within a residential area in the Hawthorn context. For example the ResCode standard in relation to overshadowing would be an appropriate measure of such effects.

29 On the other hand, the subject land is a very large site. It has historically been used for industrial purpose, a substantial proportion of the site is within a B2 zone, and it is the only land with a frontage to Drill Street. The land, is undoubtedly an opportunity site for the achievement of important strategic planning purposes. In a context such as this the achievement of these strategic purposes may outweigh some more subjective amenity considerations, such as a changing outlook towards larger buildings.

30 There was debate at the hearing about Mr Deidun's contention that there should be a transition in scale at the zone boundary, notwithstanding the fact that the zone boundary transects the subject land. The zoning, and the underlying strategic framework, will influence the distribution of use and development over large sites. However, the issue of whether or not there is an appropriate transition in scale is usually appropriately determined by a proper examination of the site context, informed by the strategic framework. In this case the important transition in scale, the important interface, is that between the subject land and the residential properties fronting onto Manningtree Road.

31 In some respects this debate was a chimera as there is in fact a transition in scale which occurs at about the zone boundary as it transects the site. Two and three storey buildings are proposed within that part of the site within the Residential 1 zone. Within that part of the site affected by the Business 2 zone, there is a six storey building which steps gradually in height from an effective two and a half storeys adjacent to the zone boundary.

Neighbourhood Character, And The Relevance Of The Neighbourhood Character Statement

32 Neighbourhood character is undoubtedly a relevant consideration in all applications such as this. However, a related question in this case is the relevance, or usefulness, of the applicable neighbourhood character statement[4] relevant to that part of the site which is the Residential 1 Zone. The neighbourhood character statement for Area 94 is:

This area is a single long east west street running parallel to Burwood Road. The land slopes gently towards the west, although not enough to open up panoramic views.

Lots are varied in frontage but only in the smaller range. Housing is predominantly detached double fronted Victorian houses. Some larger lots have been developed for multi dwelling development and institutional uses.

The street has been redesigned to reduce traffic pressures with flared sections and new footpath and crossings. Parking from nearby commercial areas is a visual influence on character.

33 It is undoubtedly true that neighbourhood character is an important consideration in any application for review within the metropolitan area. That part of the site within the residential zone is definitely within the area depicted on the map as being neighbourhood character Area 94. Nevertheless, the neighbourhood character statement deals exclusively with the character of Manningtree Road. The fine grained Victorian residential streetscape of Manningtree Road does not turn the corner into Drill Street. The neighbourhood character statement is of little assistance in forming an opinion about whether or not the proposed development responds appropriately to the neighbourhood character of the locality.

34 During the course of the hearing it was acknowledged that there were consultants, and a steering committee, working on the preparation of an urban design framework for West Hawthorn. Shortly after the completion of the hearing a draft document was released for public consultation purposes. It is not argued by the parties that significant weight can be given to this embryonic document. Nevertheless, we are pleased to observe that the basic parameters of this development, that is land use and building height, are within the range of uses and heights under active consideration. It is noteworthy that in the draft document the entirety of the subject site is included in the Mixed Use precinct to the south of Burwood Road.

35 The Responsible Authority criticised the proposal on the basis that it was an exclusively residential development. It was argued that part of the proposal should be for a commercial, and in particular an office purpose. And in support of this argument we were referred to the zone purposes, and the strategic objectives encouraging commercial in particular office development within the Mixed Use Corridor, together with the employment strategies of the planning policy framework.

36 The strategic support for the intensive redevelopment of this site arises because it is within a Mixed Use Corridor. Nevertheless it is not the case that the desired mix of uses should be achieved on every site. We think that there are a number of factors which support the Applicant's decision to opt for an exclusively residential use on the subject land, they are:

•

The land does not have a frontage to Burwood Road, the principal commercial access through the Mixed Use Corridor;

•

Drill Street is a narrow street and its primary purpose is to provide access from Burwood Road to the residential hinterland, and to the small number of properties which adjoin the street. Drill Street does not have an active street frontage of the type which might be attractive to an office development. Nor does it lend itself to the development of such a frontage.

37 The height and scale of the proposed buildings influences the direct amenity effects of the buildings on adjoining properties, and the responsiveness of the overall development to neighbourhood character. These issues will be examined by considering in turn the residential interface, the commercial interface and the Drill Street streetscape.

38 If one considers the buildings already approved or under construction in the Mixed Use Corridor, and the policy support for more intensive development within the corridor, then it is difficult to conclude that a building of 6 residential floors (or 19 metres in height) would always be inappropriate. There would need to be a suitable transition in height between such a building and nearby residential areas, and perhaps to Burwood Road.

39 The amended plans contain three buildings of two and three storeys extending along the south boundary of the subject site. The amended design is a response to design advice received by the Applicants from Mr McGauran. Mr McGauran preferred a modest two storey building of residential scale fronting directly onto Drill Street, adjacent to the south boundary of the site, with buildings to the rear spaced apart and sited to respond to the existing boundary conditions, including the industrial buildings on the subject land, and the buildings and landscape on the adjoining residential properties.

40 The important issues here, are the direct amenity effects of the proposed buildings on the immediately adjoining residential properties, and to a lesser extent when viewed from the public realm in Manningtree Road.

41 Our inspection satisfies us that the existing sloping topography, the proposed setbacks, the existing and proposed landscaping, and existing outbuildings (and the factory wall to be retained) all combine to produce a generally satisfactory outcome. However, there is one exception to this opinion. We are of the opinion that the upper level of the western most building (units 14 and 15) will be unduly intrusive when viewed from the adjoining residential properties, in particular 35 and 39 Manningtree Road. In this particular case the topography of the land, together with the heights and setbacks of the proposed building, has combined to produce an unsatisfactory outcome. This level should be deleted from this building.

42 From the rear of dwellings on the north side of Manningtree Road, there will be views, from some vantage points towards the higher elements of the proposed development. The setback to these higher elements is substantial, and a view of these elements is what should reasonably be expected, having regard to the planning policy framework relevant to the locality and in particular to the site.

43 The dwelling on the north eastern corner of Manningtree Road and Drill Street (49 Manningtree Road) has perhaps the clearest outlook towards the larger apartment building. They are oblique views across Drill Street, partially interrupted by existing vegetation. The proposal will result in a significant change in the outlook from the rear of this property but nevertheless an acceptable change having regard to the considerations discussed in paragraphs 29 and 42 above.

44 Mr Ng's client was concerned about the impact of the proposed development on the development opportunities which exist for its site. A related issue is the future amenity of residents in the current proposal, when the adjoining site is redeveloped as one would expect within the context of this Mixed Use Corridor and Business 2 Zone.

45 Mr McGauran was cross examined extensively on this issue, and it was his opinion that in higher density, highly urbanised environments a separation distance between habitable rooms on adjoining multi level buildings, of 9 metres, is a good starting point. This is a rule of thumb which was accepted by the Tribunal in Design Consortia Australia[5].

19 The main amenity issue, other than overshadowing already discussed, is there a future relationship between the proposed building, and other tall buildings which may be developed on adjoining sites.

20 Mr McGauran suggested that 9 metres between habitable room windows on adjoining buildings, and something less than this, say 7 to 8 metres, between the face of balconies on adjoining buildings, would result in an acceptable amenity outcome. We agree that this is an appropriate rule of thumb. In our view, while Frankston is a considerable distance from the centre of Melbourne, development within its CAD will ultimately be a highly urban form of development.

46 We are of the opinion that if one has regard to Mr McGauran's rule of thumb, then the setbacks proposed generally result in a reasonable sharing of the setbacks which would be required to achieve an appropriate standard of amenity, in a highly urban environment like that which is emerging in this precinct. It is perhaps likely that if the redevelopment of Mr Ng's clients land lags the development of this site, then future residents of this development could easily be objectors to the redevelopment of the adjoining site. This is not a relevant consideration to this Tribunal. Those objections will be assessed at the appropriate time, on the basis of what could be reasonably expected in the particular planning context.

47 As already discussed the Drill Street streetscape is essentially defined by the development on the subject land, the only land with a frontage to the street, and is strongly influenced by the sideage of the Army (ADF) depot, opposite the subject land.

48 The design proposes a quite radical change to this streetscape, moving from an industrial typology, to a more residential typology, changing from a building with a modest residential scale towards the south of the site, to the more highly urban character of the proposed 6 level apartment building. This design choice is in some senses a response to the character of the residential area to the south. However, we have already observed that the Drill Street streetscape has little connection to the predominantly Victorian residential area to the south in character terms, and a more important purpose of this design decision is to create a pleasant environment for future residents of Drill Street. Because there was some debate in relation to this, we would observe that we generally support the landscaping proposals for Drill Street, and the fencing layout and detail shown on the Consolidated Amended VCAT Drawings.

49 The architecture of the proposed building is of importance because it will primarily define the future character of the Drill Street streetscape. In the present condition there are views to the building from Burwood Road, but these views will be eroded over time. It was Mr McGauran's evidence that the architecture was of a good standard. This lead to a somewhat unresolved debate about the meaning of good quality architecture, as it is used in the scheme. It is clear to us that whatever meaning one gives to the concept of good quality architecture, it does not mean that every development must be a Federation Square, and we are satisfied that the proposal would result in an acceptable outcome within the Drill Street streetscape, and in the broader area generally.

50 During the processes of the application, the permit application was referred to the council's traffic engineers who conditionally supported the proposal from a traffic perspective. The Responsible Authority in its draft conditions, proposed that there be a right turn ban from the basement car park entry, preventing vehicles leaving the site travelling towards Manningtree Road. This was not a requirement contained within the referral advice from council's own engineers, and was opposed by the permit applicants.

51 The proposed condition is essentially the Responsible Authority's response to the concern of objectors about the impacts of traffic from the development on the residential area to the south. We would need to be satisfied that traffic from the proposed development had significant adverse consequences for the residential area to the south, if we were to so arbitrarily restrict the access options of future residents of this development.

52 On the basis of the submissions before the Tribunal, it appears that New Street, Manningtree Road and Drill Street carry moderately high volumes during peak hours for local streets because of "rat running" traffic. It is not clear that this traffic is unwanted through traffic, it may be the case that it is traffic generated by residents from the broader area, or people moving to and from some of the various institutional uses which exist within the area.

53 Ms Dunstan conservatively estimated that the proposed dwellings would generate approximately 400 vehicles per day. Ms Dunstan further estimated that this traffic would split fifty/fifty, north and south in Drill Street, and then a further fifty/fifty east and west in Manningtree Road.

54 Manningtree Road is somewhat busier than residential streets less closely connected to arterial roads and which do not provide a means of access to schools and other institutional uses. It is therefore understandable that residents are concerned about the traffic impacts of the proposed development. Nevertheless, existing traffic in Manningtree Road could not be said to be beyond an acceptable volume, and the additional traffic associated with this development is unlikely to have any serious perceptible impact on the perceived amenity of the locality arising from the movement of traffic on the local residential streets.

55 Drill Street is a narrow street with parking on one side, passing vehicles are required to take considerable care, and in most cases will take advantage of breaks in the row of parked cars afforded by crossovers and the like. It is quite likely that there will be some increase in the incidents of conflict between vehicles in Drill Street consequent on the development of the current proposal. Such conflicts may require some management, for example a change to parking restrictions. A more likely outcome is that motorists will adjust to the change in circumstances, and in the unlikely event that the conflict causes some noticeable increase in delay, then some motorists will choose another route.

56 Ms Dunstan's assessment of the impacts of the proposal, and the referral responses of the Responsible Authority's own traffic engineers, confirm the Tribunal's opinion, based on its own experience, that the traffic implications of the current proposal are entirely manageable.

57 It follows from the above reasons that it is our conclusion that the decision of the Responsible Authority should be set aside and a permit granted.

58 In deciding the conditions to be included on the permit we have had regard to the draft conditions provided to the Tribunal by the Responsible Authority and the submissions and evidence of the parties in addition to the matters which arise from our reasons.

[1] Clause 21.07 Residential Land Use in particular Clause 21.07-3

[2] Mentone Mansions PL v Kingston CC [2000] VCAT 1947

[3] Westpoint Corporation PL v Moreland CC [2005] VCAT 1049

[4] Neighbourhood Character Area 94.

[5] Design Consortia Australia v Frankston CC [2004] VCAT 1718