Sarino Park Pty Ltd v Port Phillip CC & Ors [2012] VCAT 290

1. For all the plans included in the permit application, substitute the following plans -
   • Prepared by: Bruce Henderson Architects
   • Titled: 35-37 Wellington Street, St Kilda
   • Drawing Nos: TP001 Rev B, TP002 Rev B, TP003 Rev B, TP004, Rev B, TP005 Rev B, TP006 Rev B, TP007 Rev B, TP008 Rev B, TP101 Rev D, TP102 Rev D, TP103 Rev D, TP104 Rev D, TP105 Rev E, TP201 Rev E, TP202 Rev D, TP301 Rev D, TP302 Rev D, TP401 Rev E, TP402 Rev D, TP501 Rev D, TP502 Rev D, TP503 Rev D, TP504 Rev D, TP505, TP506, TP507, TP508, TP604 Rev A, TP605 Rev A, TP606, TP700 Rev C
   • Dated: 21 November 2011 (TP505, TP506, TP507 & TP508), 28 November 2011 (TP604, TP605 & TP606), 18 November 2011 (all other drawings)
2. The decision of the Responsible Authority in relation to permit application no. 997/2010 is affirmed. No permit is granted.

Mr Peter O'Farrell of counsel, instructed by Logie-Smith Lanyon Lawyers. He called the following expert witnesses:

• Mr David Crowder, town planner, Ratio Consultants Pty Ltd
• Ms Charmaine Dunstan, traffic engineer, Traffix Group Pty Ltd
• Mr Mark Sheppard, urban designer, David Lock Associates (Australia) Pty Ltd

A statement of evidence, attaching photomontages, by Mr Christopher Goss of Orbit Solutions Pty Ltd was also filed on behalf of the Applicant. Mr Goss was not called to give evidence.

Mr Matt Spencer, town planner, Port Phillip City Council

Ms Kaye O'Connor for Kaye O'Connor, Fiona Cochrane, Karin Robin, Gregory White & Natasha Cochrane

Mr Kane Glenister for Joseph Cavallaro, Kane Glenister, Glen Coghlan, Kyan Ho, Melissa & James Ladd, Paul Webb & Sonia Fava

Ms Rachel Robinson for Rachel Robinson & William Castles

Mr Andrew Hobbs, Mr Matthew O'Donnell, Mr Michael Sabey, all in person

There was no appearance on behalf of Alex Hunter, David Skilton, Zbigniew Friedrich, Joseph Steg, Emily Kilvington & Hector Vazquez, Geoff Satchell, Eve McGlashan, Frank Salera & Wade Guye

Thirty-seven dwellings (31 one-bedroom and 6 two-bedroom), office (about 365 sq m), retail premises (about 52 sq m) in an eight-level building plus basement (for dwelling storage units) and 26 car spaces all in a three-level vehicle car stacker accessed at ground level off Nelson Street at the rear

Application under section 79 of the Planning and Environment Act 1987

Design & Development Overlay Schedule 13 (DDO13)

Clause 34.02-2 (use of land in B2Z for dwellings and retail premises)

Clause 34.02-4 (construction of buildings and works on land in B2Z)

Clause 43.02-2 (construction of buildings and works on land in DDO13 for a building that exceeds a height of AHD 33 m)

Clause 52.06-1 (reduction in car parking requirement)

Clause 52.07 (waiver of loading and unloading requirement)

Clauses 11, 15, 16, 17, 18, 21.04, 21.05, 21.06, 22.06, 52.06, 52.07, 52.34 and 65

The land is on the north side of Wellington Street, about 200 m east of St Kilda Junction and about 600 m west of Chapel Street. It is rectangular with a front and rear boundary to Wellington Street and Nelson Street of about 12.2 m and a depth of about 39.7 m. It has an area of about 483 sq m. On the land is a double-fronted and double-storey Victorian-era brick building used for an office and built partly to the Wellington Street boundary. The rear of the land contains an at grade car park with eight spaces. The land has a slight fall of about 0.5 m from east to west.

Sunday 12 February 2012 (unaccompanied); Sunday 19 February 2012 (accompanied inspection of Apartment 16, 39 Wellington Street); Tuesday 13 March 2012

1. Sarino Park Pty Ltd (the Applicant) has applied to the Tribunal to review the failure by the Port Phillip City Council to decide an application for a permit within the prescribed time to develop land at 35-37 Wellington Street, St Kilda (the subject land) for an eight-storey building for mixed use but largely residential purposes.
2. The Council is opposed to the grant of a permit on policy, neighbourhood character, amenity and car parking grounds. The Respondents are also opposed to the grant of a permit on these and other grounds, including traffic.
3. The two main issues in this proceeding are:
   • Whether the scale, including height, and residential use component of the development responds to planning policy in the Port Phillip Planning Scheme.
   • Whether the supply of on-site car parking is satisfactory.
4. After considering the submissions and evidence, I find that the proposal does not result in net community benefit and sustainable development and is not a reasonable or satisfactory planning outcome. I have decided that no permit is to be granted.

1. The proposal is an eight-storey building plus one small basement level. It has a five-storey (16.2 m high) podium to Wellington Street, although at the top three storeys of the podium (ie levels 2 to 4 on the plans) dwellings walls are setback 1.3 m from the street for balconies. Above the podium, levels 6, 7 and 8 are setback 5.4 m, 5.4 m and 10.3 m[1] (respectively) from Wellington Street and the setback area is partly used for residents' open space on levels 5 and 7. The building is on the Nelson Street boundary at all levels, but for some recessed balconies at levels 2 to 7. Maximum building height above the Wellington Street footpath is 27.3 m.
2. A brief description of each level is as follows:
   • The basement has 37 storage units for dwellings and pits for the 26 vehicle car stacker located at ground level.
   • The ground level also contains an entry lobby, storage for 16 bicycles, waste storage and a small retail premises with a floor area of about 52 sq m. The ground level also contains the car stacker with access from the rear boundary on Nelson Street. Of the 26 spaces, 17 would be allocated to the dwellings (including one for each of the six two-bedroom dwellings), seven for the office, one for the retail premises, and one car share or flexi car space. Adjoining the stacker are two motorcycle parking spaces.
   • Level 1 contains two offices, with a total floor area of about 365 sq m.
   • Levels 2 to 7 contain the 37 dwellings, of which 31 are one-bedroom and 6 are two-bedroom.[2]
3. The proposed building is of contemporary design with strong horizontal and vertical elements, including a cascading side wall (or feature frames) treatment.

1. The north side of Wellington Street between Upton Street and the Junction is a mixed office and residential area. Residential use has increased in recent years.[3] Abutting development is a single-storey office (west side) and an apartment building (converted from offices) with a podium level of three-storeys plus a recessed fourth storey above a semi-basement car park (east side). Nelson Street has a more robust built form than Wellington Street. Most of the south side of Wellington Street is residential and zoned R1Z with built form of one to three storeys, with relatively small street setbacks.
2. I agree with Mr Sheppard that built form on the north side is between one and five storeys and predominantly four storeys. Street walls of buildings are a maximum of four storeys. Because office ceiling heights are generally higher than dwelling ceiling heights, building heights vary and some offices with four-storey street walls may be the equivalent of dwellings with a five-storey street wall.
3. There are a number of recent and current proposals to develop nearby land. One is a vacant site closer to the Junction at 11-15 Wellington Street. It is a much larger site.[4] On 3 December 2010, the Council issued a permit for a ten-storey, mixed-use building above three basement levels on this land. On 8 February 2012, the Council amended the permit, at the direction of the Tribunal.[5]
4. The endorsed plans now show a ten-storey building (plus three basement levels) containing about 290 sq m offices at the ground level and 81 dwellings (15 one-bedroom, 64 two-bedroom and 2 three-bedroom) in the nine storeys above. There are 85 car spaces for residents and 16 residential visitor spaces in the basements. It has a five-storey (15.6 m high) street wall to Wellington Street and an overall maximum height of about 31 m. Dwellings at levels 2 to 5 are setback 2.1 m for balconies. Dwellings on levels 6 to 9 are setback 7.4 m to 16.5 m from Wellington Street. The two topmost storeys both have a small footprint. Construction has started. This development forms part of the context and emerging character.

1. There is considerable relevant State and local policy. I refer briefly to the more important.

1. The proposal responds to the housing policy objective to 'locate new housing in or close to activity centres'.[6] The subject land is in an activity centre. It also responds to housing policy because it provides more diverse housing and more affordable housing. As has often been stated by the Tribunal, consistency with State policy must be given appropriate weight in balancing policies with local policy. In relation to office policy, the proposal is consistent with policy because it helps meet office needs in a location well serviced with tram facilities.

1. An updated local policy framework commenced relatively recently on 27 June 2011 following approval of Amendment C62 to the scheme. The Tribunal has previously considered the updated framework.[7] The Tribunal has already observed that the clear application of the new framework is hampered by the removal of maps that helped identify the various areas referred to in the provisions.[8] A number of different policies are relevant, to which I now refer.

1. It is unclear in the framework whether the activity centre in which the subject land is located is:
   • a major activity centre (MAC) (ie part of the St Kilda MAC on the west side of St Kilda Road),
   • a neighbourhood activity centre (NAC) (ie a part of the St Kilda Road South NAC on both sides of St Kilda Road, south of Wellington Street), or
   • a specialised activity centre (ie the Wellington Street specialised activity centre) (the WSSAC).
2. The scheme now draws a distinction between the St Kilda MAC,[9] the St Kilda Road South NAC and the WSSAC. The latter two are not part of the MAC. The latter two abut each other, but the boundary between them is unclear.
3. I do not agree with Mr Crowder that the subject land is likely to form part of the MAC. The subject land is in the WSSAC because the NAC focuses on land with a St Kilda Road frontage,[10] and the WSSAC includes land on both the north and south sides of Wellington Street.[11] The strategies for the WSSAC are:

6.6.33 Encourage consolidation of this centre for commercial and office uses.

6.6.35 Ensure new development responds to the varied scale of 2 to 4 storeys along the north side of Wellington Street and 4 storeys to the south with varied setbacks.[12]

1. The overriding housing objective is to encourage new housing in areas that have the capacity for change and which offer the highest levels of access to public transport, shops and social infrastructure.[13] The strategy is to direct the majority of new housing to preferred housing growth areas. Is the subject land in one of these five growth areas?
2. It is not in a minimal, limited or incremental residential growth area, because the subject land is in a business zone and not a residential zone.
3. The definition of a substantial residential growth area incorporates the need for proximity to a MAC 'and/or' the principal public transport network (PPTN) and to housing being part of 'the renewal of precincts and large sites'.[14]
4. The subject land is not in the MAC and I doubt it is properly characterised as close to the MAC.[15] Whether that is the end of the matter depends on two matters.
5. First, whether 'and/or' proximity to the PPTN should be construed disjunctively. I doubt it should, having regard to the key issue of accommodating a large proportion of housing growth in strategic sites and precincts close to 'shops, services and transport' (my emphasis),[16] and the absence of reference to proximity to the PPTN in the relevant strategy.[17]
6. Second, whether the proposal will renew a precinct or large site. The proposal does fit this description, mainly because the site is under 500 sq m.
7. Even if the strategy and definition could be construed (as I doubt) to have an independent limb for a strategic site, I do not consider the subject land to be strategic site, mainly due to its size.[18]
8. The remaining issue is whether the subject land is in a moderate housing growth area. This question is not clear because of differences between the objective and the definition. The objective refers to specified established larger 'retail/commercial strips' of a MAC, the Glenhuntly Road/Ormond Road NAC or the St Kilda Road B2Z. Logically this does not include the WSSAC. However, the definition does not specify the centres, but includes reference to 'established retail/commercial strips within larger Activity Centres which have the capacity to absorb some increase in development intensity'. I do not consider the Wellington Street B2Z area is 'within' a larger activity centre, such as the MAC. It abuts the St Kilda Road B2Z area but is not within it.
9. I doubt it is local policy that the Wellington Street B2Z area (including the subject land) is not in a housing growth area. This would not be logical having regard to other local policies that encourage some housing growth, especially above commercial use, in St Kilda activity centres, including specialised activity centres.
10. I would therefore find that Wellington B2Z area should be designated a moderate residential growth area under local policy. The definition of a moderate residential growth area goes on to state that a low level of housing growth or intensification may be appropriate in a particular centre because:

The location of development and level of intensification will vary across centres depending on the streetscape and heritage character, and lot size. New use and development must not compromise the economic function of the centre.[19]

1. Consistent with these sentiments, the strategy for a moderate residential growth area also states:

The intensity and scale of new development must respect the existing streetscape character and commercial context of the centre.[20]

1. My finding is that the subject land is in a moderate residential growth area.

1. The WSSAC is an 'office and mixed activity area'.[21] It is policy that new uses support the 'primary functions' of a 'primary employment node', 'commercial/office use' and 'active ground floor uses'.[22] This is largely consistent with the purpose of the B2Z to 'encourage the development of offices and associated commercial uses'. 'Intensification of housing (subject to height and amenity considerations)' and 'retail showroom/restricted retail' are neither a primary nor secondary function.[23]

1. Urban structure and character policy is to ensure 'new higher density development is responsive to the existing scale and form of neighbouring sites'[24] and ensure 'new development at increased densities provides a transition in scale to any adjoining lower-rise development'.[25]
2. It is policy to ensure that development in the WSSAC 'responds to the varied scale of 2 to 4 storeys along the north side of Wellington Street'. It is policy to ensure development responds to place context and integrates with prevailing neighbourhood character.[26]
3. Mr Sheppard and Mr Crowder, in my view, gave insufficient weight to the need to ensure higher density development responds to existing scale and form of neighbouring sites.[27] In this proceeding, this includes those on the south side of Wellington Street.
4. The feature frames around the side walls and roof contribute to its architectural quality.[28] However, they do add to the massing and scale of the building, especially as they have a south-facing overhang of each floor and add to its overall visual impact.

1. Policy must be applied in an intelligent and flexible way having regard to both the State and local policy framework affecting the future use and development of land. Relevant policies need to be integrated and conflicting policies balanced in favour of net community benefit and sustainable development for the benefit of present and future generations.[29]
2. The relatively small size of the subject land does not provide a significant opportunity for additional housing.
3. Local policy seeks to direct the majority of new housing to preferred growth areas. Policy for St Kilda seeks to realise housing growth in the major activity centres, specialised activity centres and mixed use areas. However, policy for the WSSAC encourages office/commercial use and discourages retail and new residential use.
4. I give additional weight to local policy because it is recent and follows a comprehensive review. As it postdates commencement of current State policy, it prima facie gives effect to and implements State policy. However, there is some inconsistency within local policy. I give additional weight to the WSSAC policies because they are more specific to the subject land.
5. The proposed office consolidates office use in the WSSAC because it is close to the street and provides more office than currently exists. The proposed ground level retail area is consistent with discouraging retail use because its small size does not affect the MAC. There is apparent conflict between policies encouraging residential use above office use in B2Z and discouraging new residential uses in the WSSAC. The proposal adequately responds to the policies because residential above office use appropriately discourages a new or entire residential use.
6. In relation to built form and urban design policy, the proposal has a podium of five storeys with a street wall of 15.6 m. A five-storey podium responds to the varied scale of the Wellington Street, given the additional height of existing four-storey office podiums. The three additional storeys above the podium are not a satisfactory policy response, given existing development in the WSSAC and the one to three storey residential interface on the south side of Wellington Street.
7. Mr Goss' photomontages show the feature frames that extend closer to Wellington Street. They confirm the unreasonable bulk and mass from Wellington Street (particularly the upper levels on the oblique) and from the Junction, even taking into account the approved built form at 11-15 Wellington Street.
8. The ten-storey, mixed-use building under construction at 11-15 Wellington Street does form part of the evolving character of the area but it does not make the proposal a satisfactory response. First, it is about 75 m from the subject land and, more relevantly, is closer to the Junction and is opposite land in the B2Z and not the R1Z.[30] Second, its top two storeys are much smaller, are setback further from Wellington Street and sit upon a much larger (but not higher) podium. Consequently, the top two storeys have less visual impact. Third, the permit was issued about seven months before the updated policy framework commenced.
9. I have decided that a more tempered built form is needed to satisfactorily respond to policy, the context and neighbourhood character. As a guide, a four-storey street wall with a fifth storey recessed from Wellington Street is likely to be reasonable. A more challenging alternative would be five-storey street wall with sixth floor that is well recessed from Wellington Street and recessed from Nelson Street.

1. The second key issue is whether the supply of on-site car parking is satisfactory. There are 26 on-site spaces in the three-level stacker. Under the scheme, 91 spaces must be provided. A permit may be granted to reduce the requirement to the proposed 26 spaces.
2. Of the 26 spaces, the seven spaces allocated to the office, the one space for the retail premises, and the six spaces for the six two-bedroom dwellings are all reasonable. One space is for the car share or flexi space. No spaces are allocated for residential visitors. Residents will not be entitled to street parking permits.
3. The two main parking issues are whether the remaining 11 spaces for the 31 one-bedroom dwellings (or rate of 0.35 spaces per dwelling) is reasonable, and whether no on-site residential visitor parking is reasonable.

1. In Ms Dunstan's opinion, the 0.35 rate was satisfactory, having regard to:
   • Extensive nearby public transport, bicycle use infrastructure, and four car share pods within 1 km walking distance of the subject land.
   • The Council's 2007 policy that allows a rate of between zero and 0.8 spaces in specified circumstances.
   • Empirical assessment of demand having regard to ABS car ownership data, availability of on-street parking for visitors at out of business hours peak demand times, and the proposal's contribution to the car share scheme.
2. I have not been persuaded that the 0.35 rate would be reasonable and I would not grant a permit for the necessary reduction, for the following main reasons:
   • The most recent 2006 ABS data shows residents of one-bedroom apartments in this area have an average of 0.8 cars.
   • The Council's 2007 policy supports a reduction below 0.8 spaces only if specified conditions are met.[31] The proposal meets some but not all the conditions. The subject land is not within 200 m of an activity centre.[32] It is within 200 m of the PPTN but is not within 400 m of a tram stop, which is a more effective measure of accessibility. It is also not within 400 m of a full line supermarket.[33]
   • The provision of two motorcycle spaces and five more bicycle spaces than is required does not compensate for 20 one-bedroom dwellings not having a car space, even though those dwellings are small.
   • The four car share pods, each between 800 m and 1 km from the subject land as the crow flies, do not give a high level of access to this service. One space for the car share scheme in the stacker is impractical and does not contribute to sustainable services to the extent of justifying the reduction. If the car share space was on Wellington Street, it would make a greater contribution.[34] I agree with the observation by another division of the Tribunal that car share schemes appear, at this stage, to be a solution for only a few people.[35]
3. The proposal does not justify a reduction to 11 spaces for the 31 one-bedroom dwellings. On this permit application, I would have preferred a parking rate of around 0.8 spaces for those dwellings.

1. Ms Dunstan supports the non-provision of on-site visitor parking on the basis that a 0.12 space per dwelling demand (based on 2003 and 2010 surveys of Port Melbourne and South Yarra projects) or 4 spaces can be met in peak demand periods (weekday evenings and weekends) on nearby streets, having regard to her parking surveys.
2. The Respondents contend on-site visitor parking is required and refer to Council parking surveys and their own observations that they contend show that Wellington Street is virtually fully parked during times of peak demand. The Council relies on Ms Dunstan not justifying her opinion, having regard what it states is a recent conflicting opinion in analogous circumstances for a nearby project.[36]
3. My own inspections tend to confirm Ms Dunstan's surveys that there are adequate on-street spaces available in the surrounding block during times of peak visitor demand.[37]
4. The demand for visitor car spaces for dwellings is less a function of proximity to public transport, but is more related to the type and size of a household and accessibility to services. Residents of smaller dwellings are more likely to meet visitors out of the dwelling rather than in the dwelling, particularly if there is a range of services and facilities nearby. Demand is likely to be low with the proposal because 84% of the dwellings are one-bedroom and the remainder two-bedroom, and because the services and facilities in the MAC are within walking distance.[38]
5. A peak demand of four visitor spaces could be reasonably met on-street, having regard to parking availability.

1. Parties made submissions on a number of other relevant issues. These issues do not affect my primary findings, above. Either individually or collectively, they would not have resulted in a finding that the proposal was an unsatisfactory planning outcome. I briefly comment on these issues as follows.

1. The land is affected by DDO13. The relevant design objective is to 'ensure that the Shrine of Remembrance and its outline as viewed from Swanston Street outside the State Library is not obscured or encroached on by the construction, alteration or addition of a building or works'. DDO13 requires that any building above 33 AHD requires a permit. The proposal extends to about 44 AHD and so a permit is required. DDO13 also requires the height of a building to comply with a specified 1986 formula and for the views of the Shrine Trustees to be sought.
2. After the hearing, the Council filed a Shrine Vista report dated 25 July 2011 prepared by Melbourne City Council for the building in the advertised proposal. The report concludes that none of assessed 40 points on the building would impact the Shrine Vista. The Shrine Trustees, based on that report, did not object to the building. As the proposal now before me is one storey less in height than the advertised and assessed proposal, I rely on the report in finding the proposal complies with DDO13.

1. Some Respondents opposed the proposal citing congestion in Wellington Street and Nelson Street, plus safety issues with drivers ignoring one way streets (eg Nelson Street), no right hand turns (eg Wellington Street into Upton Road) and U turn bans (Wellington Street). According to Ms Dunstan, more than half the casualty crashes in the last five years involved bicyclists and motorcyclists in Wellington Street. This was consistent with Respondents' claims of bicyclists being hit by motorists unlawfully doing U turns in Wellington Street. The Council is examining traffic and parking issues in the area.
2. I accept Ms Dunstan's opinion that the proposal will generate about 17 vehicle trip ends per hour and this is relatively low and will not have a material detrimental effect on the operation of Wellington Street, Nelson Street and the surrounding road network.

1. Some Respondents opposed the proposal on grounds relating to inadequate on-site loading facilities for the proposal. They particularly cited the frequency and numbers of removal vans for small rental apartments. The scheme does not require on-site loading facilities for offices or dwellings. Vehicles loading will need to park nearby in Wellington Street or Nelson Street. On-site facilities are neither needed or reasonable for such a small retail premises. A waiver is reasonable.

1. The Respondents contended that dwellings opposite on the south side of Wellington Street, dwellings in the adjoining building at 39 Wellington Street and in buildings further to the east in Wellington Street will suffer unreasonable loss of amenity by building bulk, visibility, daylight, overshadowing, overlooking, noise and loss of views. The Council supported some of these contentions.
2. The subject land is in a B2Z and has no residential zone abuttal. Ensuring maintenance of residential zone standards of amenity is therefore unreasonable. Many of the dwellings at 39 Wellington Street obtain daylight and sky views from an multi-level atrium. Two dwellings have roof top terraces on the west side. The occupiers of all these dwellings have no right under planning law to the maintenance of existing city, bay or sky views. Any building as high or higher than those two dwellings will restrict some of those outlooks. Daylight may be marginally affected but there is no evidence that relevant standards would not be met.
3. Even using ResCode standards as a guide, there is no unreasonable overlooking of habitable room windows or secluded private open space (SPOS) beyond a distance of 9 m. Therefore, claims by Respondents of unreasonable overlooking of:
   • The small front gardens of the single-storey dwellings at 38 & 40 (diagonally opposite the subject land on the south side of Wellington Street) cannot be supported because those gardens are not SPOS and the minimum distance (measured horizontally) from proposed balconies is at least 22 m.
   • The rear gardens of the same dwellings cannot be supported because those gardens are at least 40 m away and there is no actual overlooking from the first five levels because of the intervening dwellings.
   • The roof top gardens of the top-storey dwellings at 53 Wellington Street cannot be supported because those gardens are about 75 m to the east.
   • The balconies of dwellings facing the atrium at 39 Wellington Street cannot be supported because the level 5 (and above) balconies are at least 9 m away and on an angle of less than 45 degree (ie overlooking is indirect).
   • The rooftop terraces of the two apartments on the west side at 39 Wellington Street cannot be supported because the adjoining level 4 wall is solid and the level 5 wall is setback (opposite the level 5 residents' garden) or is solid (opposite the northern apartment).
4. The main locations of potential overshadowing are the SPOS and habitable room windows at 39 Wellington Street, SPOS on the south side of Wellington Street, and the public realm in the footpath on the south side of Wellington Street. My conclusions are:
   • The shadows from the proposed building on the SPOS and habitable room (bedrooms) windows of two topmost dwellings on the east side at 39 Wellington Street would not comply with the ResCode standard. However, the ResCode standard and objective is a guide for buildings of this height. I agree with Mr Crowder that the result in reasonable because the whole of the morning will be shadow free, the dwellings are in B2Z and the relevant windows are bedrooms not living rooms.[39]
   • There will be some shadow on the front gardens and dwellings at 38 & 40 Wellington Street at and around the winter solstice but this does not amount to unreasonable overshadowing mainly because the gardens are not SPOS and because it is unlikely to materially exceed the times those areas are in shadow from existing buildings opposite.
   • Only between 9 am and 10 am at the equinox would there be any shadow on a small section of the footpath adjacent to 28 & 30 Wellington Street. This is not unreasonable additional overshadowing of the public realm.
5. Some Respondents were also concerned about internal amenity. Some dwellings have south-facing habitable rooms and balconies and some have east-facing habitable rooms and balconies into a 2.9 m wide lightwell. This is difficult to avoid in relatively narrow lot with north-south orientation. A majority of the dwellings have at least one bedroom relying on borrowed light or on lightwell light (in some cases, about 9 m below the top of the wall at 39 Wellington Street). Most of these arrangements is also due to the narrower, north-south orientation of the subject land. Most rooms are within 4 m of the light source, which is not excessive. A permit could not be refused solely on this ground.

1. This proceeding involves construing and balancing the policy framework in the scheme. Although the Wellington Street B2Z area has more of the attributes of a moderate residential growth area than any other of the five housing growth areas, it is in a specialised activity centre primarily for office and commercial use. Policy encourages housing above ground levels and does not therefore discourage housing above office use, as in this proposal.
2. In a moderate residential growth area, policy emphasises the level of housing intensification will depend on respect for the surrounding built form or streetscape context, and on the lot size.
3. A building with a five-storey street wall plus three recessed levels above, as proposed, is not a reasonable built form, streetscape or neighbourhood character response. It struggles to comfortably fit onto its relatively small and narrow site. It fails to provide a reasonable transition in building height and bulk along Wellington Street.
4. The proposal requires a substantial reduction in on-site car parking requirements, especially for the 31 one-bedroom dwellings. The reduction is unreasonable.
5. For these reasons, the proposal is an overdevelopment of the subject land and does not warrant the grant of a permit.
6. The Council's deemed refusal of a permit will be affirmed. No permit is granted.

[1] The plans state the setback at this top level is about 12.2 m but the plans show a 1.9 m wide covered passage inside this setback area.

[2] Levels 2, 3 & 4 each have eight one-bedroom dwellings. Level 5 has two two-bedroom and two one-bedroom dwellings and a residents' lounge and garden facing Wellington Street. Level 6 has two two-bedroom and three one-bedroom dwellings. Level 7 has two two-bedroom and two one-bedroom dwellings and a residents' garden facing Wellington Street.

[3] According to Ms O'Connor, in the past decade, about 300 new dwellings have been approved or established in the whole of Wellington Street. This figure was not disputed.

[4] It has a frontage of about 26 m and a rear boundary to Nelson Street of about 40 m and an area of about 1,280 sq m.

[5] Pace Development Group Pty Ltd v Port Phillip CC [2011] VCAT 2373.

[6] The same objective refers to locating new housing in or close to employment corridors and at other strategic redevelopment sites. I doubt the Wellington Street B2Z is an employment corridor within the scale of such corridors contemplated by State policy. It is also housing policy that new housing be located at a strategic redevelopment site (SRS) that can provide at least 10 dwellings and offer good access to services and transport. Although land does not have to be specifically identified in a scheme to be a SRS, I doubt the subject land is a SRS because it is small (less than 500 sq m) and not close to the nearest retail services in the St Kilda MAC.

[7] This proceeding is therefore not a test case, as some Respondents submitted.

[8] Palladium Investments Pty Ltd v Port Phillip CC [2011] VCAT 1680 (30 August 2011) at [15], [36]; Southey Living Pty Ltd v Port Phillip CC [2011] VCAT 1589 (15 August 2011) at [12].

[9] Comprising Fitzroy Street, Acland Street and the St Kilda Triangle.

[10] The scheme cl 21.06-6, strategies 6.6.28 to 6.6.32.

[11] The scheme cl 21.06-6, strategies 6.6.35. The land in the B2Z on the south side of Wellington Street is a relatively small area at the western end of the street and west of the subject land. Logically, the WSSAC therefore starts west of, and therefore includes, the subject land.

[13] The scheme cl 21.04-1 objective 1.

[14] The scheme cl 21.04-1 objectives 1 & 2.

[15] It is about 420 m from the start of the St Kilda MAC or about 740 m from the nearest shops near Grey Street. St Kilda Road is a practical barrier to access. On my inspections, it took five minutes and two signal cycles to cross the eleven lanes (plus parking and bicycle lanes) of St Kilda Road and its broad median on foot from Wellington Street to Fitzroy Street.

[16] The scheme cl 21.04-1 Key issue dot point 4. Even if I am wrong about this, the subject land does not abut the PPTN but is about 250 m from the St Kilda Rd tram line. In addition, it is about 400 m by foot to the nearest tram stop and this involves descending into the concrete wasteland below the Junction.

[17] The scheme cl 21.04-1 objective 1 strategy 1.1.

[18] If the subject land is a strategic site, the sites opposite the subject land in the R1Z would also be such a site. I doubt this was intended. While the subject land may also meet most of the criteria for a strategic redevelopment site (see the scheme cl 16.01-3), I would not consider it such a site for similar reasons.

[20] The scheme cl 21.04-1 Objective 1 Strategy 1.1.

[24] The scheme cl 21.05-2 Objective 8.

[25] The scheme cl 21.05-2 Objective 8 Strategy 8.1.

[26] The scheme cl 22.06. There is no preferred neighbourhood character in a DDO or approved UDF (the scheme cl 21.05-2 Objective 3.3).

[28] In particular, it improves the appearance of the tall (about seven storey) west-facing wall towards the Junction. The visual impact of this wall would diminish on the likely future redevelopment of the abutting single-storey building at 33 Wellington Street.

[30] 11-15 Wellington Street may also be located in the St Kilda Junction/St Kilda Road South B2Z area rather than the WSSAC, but this is unclear under current policy.

[31] The policy has no recognition in the scheme as an incorporated or reference document.

[32] Having regard to there being no shops or services for residents in the WSSAC (other than one café), the nearest relevant centre is the MAC which is beyond the specified 200 m distance.

[33] The Council estimates the nearest relevant supermarket is about 750 m distant.

[34] Flexicar's offer to the Applicant provide the service states it would be better to locate the pod on Wellington Street (instead of the stacker) to make it more widely accessible.

[35] Ellis Group Architects Pty Ltd v Port Phillip CC [2012] VCAT 5 (4 January 2012) at [52].

[36] Kasment Pty Ltd v Port Phillip CC [2011] VCAT 1885 (29 September 2011) at [49]-[51].

[37] On my first inspection on Sunday 12 February 2012 (between 0900 and 1000 hrs) there were only about 6 on-street spaces vacant (of the available 77 spaces) on either side of Wellington Street, west of Upton Road. However, Fitzroy Street was closed for the St Kilda Festival from 0500 hrs on that date and so parking demand may have been abnormal. On my second inspection on Sunday 19 February 2012 (between 0900 and 100o hrs), I estimate there were about 10 vacant spaces in that area. On my third inspection on Monday 13 March 2012 (between 1930 and 2000 hrs), there were 15 on-street spaces available in that area.

[38] Consequently, the provision of 16 on-site visitor parking spaces for the 81 dwellings at 11-15 Wellington Street may be better understood in the context of agreement between the parties and the higher number of larger dwellings in that development.

[39] The additional shadow on lower level balconies off the atrium are not unreasonable affected given existing shadows from the building itself at 39 Wellington Street.