1. The site is located on the south side of Malvern Road, approximately 260 metres west of Tooronga Road. The site has a regular configuration with a frontage of 13.26 metres, a depth of 39.62 metres and an area of approximately 544 sq.m.
2. The site is currently occupied by a detached, single storey brick building with a pitched tiled roof, currently used as a dwelling. Vehicular access to the site is via the right-of-way along the rear of the site. The land has a gradual rise from the front to rear (north to south) of approximately 1.4 metres.
3. The site is located at the western end of a long commercial strip along Malvern Road that is concentrated around the Tooronga Road intersection with Malvern Road. A residential property fronting Shaftesbury Avenue within the Residential 1 zone is located to the south of the site beyond the 3.05 metre right-of-way. To the immediate west of the site on the corner of Malvern Road and Shaftesbury Avenue is a double storey brick building comprising two dwellings. This site is also zoned Mixed Use. The dwellings appear to share all the open space around the building. The building has its frontage to Malvern Road with vehicle access via the right-of-way at the rear. The dwelling is setback 2.36 metres from the common boundary shared with the subject site, and is setback 9.08 m from Malvern Road.
4. To the immediate east of the site is a motor vehicle repair use. The site is largely vacant and used for the storage of vehicles with a small workshop to the south-east of the site.
5. Commercial properties line either side of Malvern Road with a mixture of uses evident including car dealer, offices, hotel, motor repairs, restaurant. A variety of built forms are evident ranging from traditional shopfronts to glazed modern office buildings. Heights range from 4 metres up to around 10 metres (equivalent of 1 storey up to 3 stories). Several substantial office buildings are located opposite the review site.

1. The site is zoned Mixed Use under the Stonnington Planning Scheme. The purpose of the zone is:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for a range of residential, commercial, industrial and other uses which complement the mixed-use function of the locality.

To encourage residential development that respects the neighbourhood character.

1. The use of the land for the purpose of a shop and art and craft centre require a permit under the zone provisions. A permit is not required to use the land for the purpose of a dwelling.
2. A permit is required to construct a building and to construct or carry out works for a permit required use.
3. There are no overlays which apply to the land.
4. Clause 52.06 of the planning scheme provides that a new use must not commence until the required car spaces have been provided on the land. A permit may be granted to reduce or waive the parking requirement.
5. Mr Clarke and Ms Burns provided me with a detailed summary of the applicable policy framework and it is not necessary for me to repeat that material here. In broad terms however the state and local planning policy framework seeks to:
   • Encourage urban consolidation in established urban areas;
   • Facilitate residential and commercial development in existing activity centres with good access to public transport, and in particular along this section of Malvern Road;
   • Ensure that development achieves a reasonable standard of amenity for existing and new residents;
   • Encourage the design of energy efficient buildings;
   • Ensure that development respects the existing or preferred neighbourhood character;
   • Achieve high quality urban design and architecture;

1. The parties 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. I inspected the subject land and its locality.

1. In response to the Tribunal's Order dated 3 December, 2007, the responsible authority advised that it consented to the amendment of conditions relating to the hours of operation and to the insertion of a new condition limiting the number of persons attending art classes and art exhibitions. The Council also agreed that it would be appropriate to amend the description of the permitted use to Art and Craft Centre.
2. Ms Grant who resides in the dwelling to the west was opposed to any increase in shop trading hours and the hours of the arts and craft centre on the basis that this would increase amenity impacts in the form of noise and general disturbance, and because traffic and parking congestion would also increase.
3. With respect to condition 1(a) which requires the deletion of the terrace on the third level along the section of the building where it wraps around and abuts the western boundary, the Council has adopted a peculiar position. It was submitted that this condition was imposed because the original application plans, notice of which was given, did not include the terrace. Plans submitted after notice of the application introduced the terrace and while the Council did not oppose the terrace, it was not prepared to approve it without further notice being given. It did not however require any further notice to be given. This decision not to require further notice was apparently made in the interest of making a quicker decision.
4. Mr Clarke submitted that the Council has no concerns with the terrace from a streetscape/urban design perspective, but that it raises amenity impact issues with its immediate neighbour to the west. It was submitted that having regard to the fact that this part of the building directly abuts the front setback of the adjoining dwelling, the zoning of the land, the site's frontage to a main road, and the character of the neighbourhood which includes walls on boundaries to a similar height, the terrace is acceptable subject to the resolution of overlooking issues.
5. Ms Grant submitted that the terrace would increase the already significant impacts associated with the Council's approval of the development. In her submission that terrace would add to the intimidating visual bulk of the building, increase noise impacts and disturbance through lighting, contribute to overlooking of private open space, increase overshadowing and contribute to a loss of daylight.
6. Ms Burns submitted that the changes to the permitted development, particularly the increased height and the introduction of the terrace on the western, upper level of the building, will have no additional amenity impacts on the neighbouring property to the west. Overlooking of the neighbour will, in Ms Burn's submission, be controlled by the use of fixed screens, while with respect to overshadowing, the additional height will not have significant additional impacts over and above that associated with the approved development. Similar observations were made with respect to the visual bulk impact of the proposal. Like the Council, Ms Burns made much of the site's context and in particular its main road frontage, the Mixed Use zoning and predominance of commercial built forms in this section of Malvern Road.
7. In arriving at my conclusions on the matters in dispute, it is not open to me to make findings as to whether the proposal as a whole achieves an acceptable outcome having regard to the zone provisions and the policy framework. A permit has been issued by the Council for this development and my consideration is limited to those matters which arise from the conditions imposed by the Council and which are disputed by the applicant, and of course the amended plans
8. As I have indicated previously the most significant aspect of the substituted plans, relates to the increased height of the building and the introduction of a terrace on the western side of the upper level of the building. The increase in height ranges from 1.4 m at the rear of the eastern elevation, but is generally about 800 mm across the majority of the building
9. Both these changes have adverse amenity impacts on the residential neighbour to the west and I am not prepared to approve either. While I am not able to comment on the reasonableness of the amenity impacts of the approved development, I do agree with Ms Grant's submission that as a consequence of the granting of a permit by the Council, the amenity of her dwelling will be adversely affected. The primary amenity impact is the visual bulk associated with the two storey walls constructed on the eastern boundary of Ms Grant's property. The proposed additional height will exacerbate the visual bulk impacts and this will be further compounded by the introduction of fixed screening to the terrace on the upper level.
10. I do not agree with either Mr Clarke or Ms Burns that the amenity impacts associated with the increased height and the introduction of the terrace, are reasonable in the context of the zoning of the land and surrounding development patterns. I note in this respect that both the review site and the dwelling to the west are zoned Mixed Use which is in fact a Residential zone. This is not therefore a case in which I am considering the acceptability of a development form located at the interface between a business zone and a residential zone. The proposal before me is in fact for a development located in a residential zone which has an interface with a dwelling also located in a residential zone, and the amenity impacts need to be considered in that context. The Mixed Use zone and the Business 2 zones, both of which apply in this part of Malvern Road, are very different zones and are intended to achieve very different built form and land use outcomes.
11. By virtue of the application of the Mixed Use zone on the south side of Malvern Road, the Council has in fact sought to distinguish between the intensity, form and scale of development considered acceptable in that zone, from the intensity, form and scale of development considered acceptable in the Business 2 zone. Notwithstanding this, the Council has sought to rely on the scale and form of developments occurring within the Business 2 zone to support its submission that the proposal it has approved, and the changes to that proposal which it now supports, are acceptable. I am not persuaded that this is the correct approach.
12. Other features of the amended plans are quite minor and relate to internal modifications and design detail and are not contentious.
13. With respect to the other conditions in dispute, I regard the small increase in trading hours of the shop as reasonable given the mixed use nature of this part of Malvern Road. Similarly the further amendments to condition 4 and the new condition 5 relating to the hours for art classes and exhibitions and the number of people to be accommodated in those uses, provide a greater degree of certainty as to how this aspect of the proposal will operate. I consider those changes to be acceptable.

1. It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be varied.
2. The permit will include the conditions contained in the permit issued by the responsible authority with modifications which have regard to the submissions of the parties and the matters which arise from these reasons.

[1] I was advised that as a consequence of an administrative oversight by the responsible authority, one of the objectors (MS L Hall) did not receive a copy of the Council's Notice of Decision to Grant a Permit. During the hearing I was provided with a copy of correspondence from the responsible authority to the objector dated 24 October, 2007 advising Ms Hall of this oversight. As at the date of this decision Ms Hall has not sought to initiate any separate proceeding with respect to the Council's failure to advise of the issue of the Notice of Decision.