With respect to planning permit application no. 5.2005/60, the responsible authority's decision to refuse the grant of a permit is set aside.

A permit is granted for the development of a four storey building with 2 basement car parking levels, use of the land for offices and a reduction in car parking generally in accordance with the endorsed plans at 35 Willis Street Hampton.

1 Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale and be fully dimensioned. Three copies must be provided, including at least one colour copy. The plans must be generally in accordance with the plans submitted with the application, but modified to show to:

(a)

deletion of the fourth floor;

(b)

the third floor level modified to provide a 5 metre setback to Willis Street;

(c)

the layout of the third floor level redesigned so that it provides for either 1 or 2 dwellings;

(d)

car spaces 8 and 11 widened to 2.7 metres;

(e)

columns to be relocated to between 0.35m and 1.35 metres from the entry end of car spaces;

(f)

provision of a holding mark, a lighting system indicating lift status and convex mirror within the basement car park, generally as shown in figure 7.5 on page 24 of the GTA traffic and parking evidence report dated 28 February 2006;

(g)

measures to be included on the western façade to provide shading and/or to mitigate the impacts of western sun;

(h)

a schedule of all external materials and finishes (including colour and material samples) showing materials, colours and finishes to all external wall, roof, fascias, window frames, glazing types, doors, fences, paving, outbuildings and structures, including car park surfaces. The materials and finishes must be durable and of a high quality and must include a greater mix than shown on the application plans, and

(i)

all plant and equipment (including air conditioning units, heating units, hot water systems, etc.) which is proposed to be located externally shall be identified on the plans and located to the satisfaction of the Responsible Authority.

to the satisfaction of the Responsible Authority.

2 The use and development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

3 Before the development starts, a stormwater drainage plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of this permit. The plan must be show:

(a)

a drainage scheme providing for the collection of stormwater within the site;

(b)

the conveyance of stormwater to the legal point of discharge (Bayside City Council's Drain Pit located in Willis street at the southern end of Grants Lane). The Permit Holder must demonstrate that levels permit the adoption of the nominated discharge point;

(c)

drainage waters associated with the basement construction (seepage water/agricultural) must be pumped to the nearest point of discharge and not be discharged to the kerb and channel;

(d)

the construction of the outfall drain; and

(e)

any paved courtyards/paths must be graded/drained to prevent stormwater discharge into adjacent properties. The basement entrance threshold must be such that stormwater runoff from the laneway cannot enter the property,

to the satisfaction of the Responsible Authority.

4 Before the development starts, a Road Opening/Stormwater Tapping Permit must be obtained from Council's Infrastructure Department in relation to the connection of the Council drain.

5 Before the development starts, a Road Opening Permit must be obtained to facilitate the construction of any fence/wall/letterbox structure which may necessitate the removal or damage of some sections of the footpath.

6 Before the development starts, a car park management plan to the satisfaction of the Responsible Authority prepared by a suitably qualified traffic consultant must be submitted to and be approved by the Responsible Authority. When approved, the car park management plan will be endorsed and form part of this permit. The car park management plan must include:

(a)

the allocation of each of the parking spaces to the office and residences (as the case may be);

(b)

security arrangements for occupants of the development;

(c)

the collection of waste and garbage (including the separate collection of organic waste and recyclables);

(d)

the management of loading and unloading of goods and materials for the commercial uses;

(e)

proposed signage to direct occupants and visitors to their designated spaces;

(f)

the operation of the security doors and car lift.

(g)

details of the holding line arrangements within the basement at which vehicles must wait until the lift arrives and there is a vehicle in the lift, and

(h)

details of the lighting system to be provided to advise waiting drivers if the lift is in use when it arrives.

7 Rubbish, including bottles and packaging material and recyclables, must at all times be stored within the building and screened from external view. All waste and recycling collection must be arranged to the satisfaction of the Responsible Authority and must not be undertaken between the hours of 10.00 pm and 6.00 am.

8 The Permit Holder must comply with the car park management plan endorsed under this permit at all times.

9 Before the occupation of the development starts and at all times after occupation has commenced, all areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:

(a)

constructed;

(b)

properly formed to levels that they can be used in accordance with the plans;

(c)

surfaced with an all-weather seal coat;

(d)

drained;

(e)

line marked to indicate each car space and all access lanes;

(f)

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

(g)

suitably maintained, to the satisfaction of the Responsible Authority.

10 Car spaces, access lanes and driveways must be kept available for these purposes at all times.

11 Any vehicular crossing made redundant by the building and works depicted on the endorsed plans must be broken out and reinstated as standard footpath and kerb and channel to the satisfaction of the Responsible Authority and at full cost of the Permit Holder. Any new vehicular crossings must be constructed to the satisfaction of the Responsible Authority.

12 All damaged roads and footpaths adjacent to the development site must be reinstated at the full cost of the Permit Holder, to the satisfaction of the Responsible Authority.

13 Before the development starts (including demolition and material removal), a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and be approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. Three copies must be provided. The plan must address, but not be limited to, the following:

(a)

site contamination and disposal of contaminated matter;

(b)

containment of dust, dirt and mud within the site, and the method and frequency of clean up procedures in the event of build up of matter outside of the site;

(c)

on site facilities for vehicle washing;

(d)

parking facilities for construction workers;

(e)

delivery and unloading points and expected frequency;

(f)

a liaison officer for contact by residents and the Responsible Authority in the event of relevant queries or problems experienced;

(g)

an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services;

(h)

any requirements outlined within this permit as required by relevant referral authorities;

(i)

hours of construction, and

(j)

arrangements to provide continued vehicle access in Grants Lane during construction.

14 During the construction phase of the development, the following conditions must be met:

(a)

only clear rainwater may be discharged to the stormwater drainage system;

(b)

stormwater drainage system protection measure must be installed as required to ensure that no solid waste, sediment, sand, oil, clay or stones from the premises enters the stormwater drainage system;

(c)

vehicle borne material from the premises must not accumulate on the roads abutting the site;

(d)

all machinery and equipment must be cleaned (if required) on site and not on adjacent footpaths or roads;

(e)

all litter (including such items such as cement bags, food packaging and plastic strapping) must be contained within the site boundaries, and disposed of responsibly;

(f)

all site operations must comply with the Environmental Protection (Residential Noise) Regulations 1997.

15 Except with the written consent of the Responsible Authority, demolition, or construction works must only be carried out between: 7am - 6pm, Monday - Friday (excluding public holidays) and 9am - 5pm, Saturday and public holidays. No works are to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environment Protection Authority's Guidelines on Construction and Demolition

16 At all times during which demolition or construction is undertaken on the land under this permit, the endorsed construction management plan together with conditions 14 and 15 of this permit must be complied with, to the satisfaction of the Responsible Authority.

17 Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority, except with the further written consent of the Responsible Authority.

18 Each use of the land must not detrimentally affect either any other use of the land or of the neighbourhood, including through the:

(a)

transport of materials, goods or commodities to or from the land;

(b)

appearance of any building, work or materials;

(c)

emission of noise, artificial light, smell, waste etc.

to the satisfaction of the Responsible Authority.

19 This permit will expire if one of the following circumstances applies:

(a)

the development is not started within two years of the date of this permit;

(b)

the development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

The responsible authority is directed to issue a permit in accordance with this order.

Mr D and Mrs H Henderson appeared on their own behalf and on behalf of a number of respondent objectors[1].

Mr J Leeuwenburg appeared on his own behalf and on behalf of Mrs R and Mr T Leeuwenburg.

1 On the 8 February 2005, Richard Swansson Architects [the applicant] lodged a planning permit application with the Bayside City Council [the council] for the construction of a 5 storey building over 2 basement levels to be used for offices and apartments at 35 Willis Street Hampton.

2 After receiving 35 objections from neighbours, the council decided to refuse the application on 8 grounds. In summary, the grounds of refusal say that the proposal does not meet the objectives and requirements of the planning scheme; it does not respect the neighbourhood character and streetscape because of its height, bulk and external finishes; inadequate car parking facilities are to be provided; traffic congestion would result and there would be overlooking of neighbouring properties.

3 The applicant wants me to set aside the council's decision and direct that a permit be granted.

4 Various matters were raised by the parties at the hearing. These matters can be distilled into the following 3 key issues:

•

Are the height, bulk and form of the building acceptable from a neighbourhood character and streetscape viewpoint?

•

Would the proposal have unreasonable impacts on the amenity of the area?

•

Is the design of the building appropriate having regard to solar orientation?

5 The site is located on the northeast corner of Willis Street and Grants Lane, about 30 metres west of Hampton Street. The site is almost square, with a frontage of 17.15 metres and a depth of 19.2 metres. It has an area of about 330 square metres. It has a moderate fall from its east side boundary down to Grants Lane, following the slope of the terrain in the area. Willis Street is a local road that allows for traffic in both directions and kerbside parking. Grants Lane mainly runs in a north-south direction between Grenville Street and Willis Street; however, there is a short east-west "dogleg" section about half way along its length. The section south of the dogleg is paved and has a width of about 3.6 metres.

6 The site is occupied by a 2 storey office building. The building is constructed to the Willis Street frontage and roughly covers the southern half of the site. The area to the rear of the building is vacant and used for car parking.

7 In August 2005 the council granted a permit that allows the construction of a new 2 storey office building with basement car parking on the site. The council granted the permit with a condition that required the floor area of the building to be reduced for car parking reasons. However, on appeal I varied the council's decision by deleting the condition and allowing a reduction in car parking[2]. The development allowed by that permit has not proceeded. Although Mr Henderson submitted that my decision in that case was relevant as it allowed a 2 storey building; the reality is that the only matter before me was whether a reduction in car parking should be provided. I was not asked to decide whether the height of the building was appropriate.

8 Properties to the east of the site front onto Hampton Street. They are mainly occupied by 1 and 2 storey shop buildings that form a retail strip that runs along both sides of Hampton Street. Due to the slope of the terrain, the rear part of some of the 2 storey shops is elevated giving them a quasi 3 storey presence.

9 Directly opposite the site to the north is a large car park. Land to the north of the car park is occupied by a supermarket which has undergone significant redevelopment and expansion.

10 A single storey dwelling that has been converted to office use is located directly west of the site on the opposite side of Grants Lane. This property was zoned residential; however, it was rezoned to Business zone some years ago. The objectors said that the rezoning took place on the understanding that the owner of the property was required to enter into an agreement to limit the height of any redevelopment to no more than 2 storeys. The rezoning occurred and a draft agreement to restrict the height of new development was prepared; however, it seems that the agreement has not been put into effect. It is unclear as to whether the owner of the property can be compelled to enter into the agreement now that the rezoning has occurred.

11 The area west of the adjacent office is residential with the majority of properties occupied by single storey housing.

12 The land immediately to the north comprises the rear part of shop properties fronting Hampton Street. The shop buildings are positioned towards the Hampton Street frontage with the area to the rear that backs onto Grants Lane being vacant. However, the rear section of a property further north adjacent to the dogleg in Grants Lane has been redeveloped in relatively recent times to incorporate 2 dwellings; one belonging to the Hendersons; the other to the Leeuwenburgs.

13 The Henderson's dwelling comprises 3 levels. The ground and first floor level provide for main living areas, bedrooms and garage, while the uppermost level mainly provides for a large deck and a small living space. The Henderson's dwelling is designed to have its main focus towards the west with the top and middle level decks as well as windows to main living areas facing in this direction. The decks have been screened to prevent direct views down into private open space of neighbouring dwellings, however, distant views over the residential hinterland and bay areas can be enjoyed. Vehicle access to the Henderson's dwellings is off Grants Lane.

14 The Leeuwenburg's dwelling is immediately to the east or rear of the Hendersons dwelling. It is also set on 3 levels with pedestrian access off a common entry point with the Henderson's dwelling at the southern end of the northern section of Grants Lane. The Leeuwenburg's dwelling also provides for a westerly outlook over the top of the Henderson's dwelling towards the residential hinterland and the bay.

15 Mr and Mrs Grant's property fronts onto Grenville Street and has a sideage to Grants Lane north of the dogleg. The Grant's property is occupied by a single storey dwelling that has a south facing backyard and kitchen window.

16 Contextually the site is part of the Hampton Street Activity Centre which is one of Bayside's main shopping areas. The centre has the benefit of train and bus services. The station is about 200 metres from the site with buses running on Hampton Street. There is evidence of redevelopment in the area. The supermarket and a number of 3 and 4 storey buildings have been constructed adjacent to the strip centre.

17 The proposal involves the construction of a new 5 storey building over 2 basement levels of car parking. The building is to have an overall height of 15.9 metres, save for the lift housing which would add about an extra metre.

18 The ground floor level of the building would mainly provide for office space as well as an entry hall. The first floor level of the building would also provide for offices. By and large, the footprint of these 2 levels follows the site boundaries.

19 Two apartments are proposed on each of the second and third floor levels while 1 apartment would be located at the uppermost level. The apartments at second and third floor level generally follow property's front, east and north boundaries; however, they would also stepped back away from Grants Lane. The setback areas are to be used as balcony spaces.

20 The apartment on the uppermost level is to be constructed to the east and north boundaries, but it would be stepped back further from Grants Lane and also from Willis Street. The main balcony for this apartment would be located in the Willis Street setback, with a smaller balcony to Grants Lane.

21 Car parking is to be provided within the 2 basement levels. Access to the basements would be off Grants Lane via a car lift to be located to the rear of the ground floor office. A total of 18 car parking spaces are to be provided within the 2 basement levels.

22 Access between levels is available via stairs and a lift.

23 Under the Bayside Planning scheme, the site is zoned Business 1. In this zone, a permit is required for the office use as it has a frontage of more than 2 metres to Willis Street. A permit is also required under the zone controls for construction of a building and works.

24 While it is not the council's position that there is an "in principle" problem with apartments above ground floor level on this site, Ms Lane submitted that a permit is also required to use the land for apartments. Ms categorised the apartments as "accommodation", a use that requires a permit. Mr Bisset disagreed submitted that they are more appropriately described as "dwelling", a use that does not require a permit in the zone if the frontage at ground floor level does not exceed 2 metres.

25 While none of the parties suggested that some form of residential use above ground floor level would be inappropriate, it is necessary to consider whether a permit is required to use the land for dwellings in this case.

26 While apartments do fall within the wider definition of "accommodation", they also fall within the narrower meaning of "dwelling", a use that is nested under "accommodation". "Dwelling" is a use that does not require a permit if the frontage at ground level does not exceed 2 metres. The apartments in this proposal are not at ground level; however, the entry foyer to them is. I note 2 things about the entry foyer. The first is that although it is accessed off the site's Willis Street frontage, the width of the entry point is 1.55 metres. Second, even though the entry foyer widens to more than 2 metres, it is shared with offices at both ground and first floor levels. This is also important given a legal opinion given by Member Rickards in Semmens v East Gippsland SC [3], a case where essentially the same issue arose. Member Rickards concluded:

If however the entry at ground level provides access to other uses such as shops or a car park, open to the public, then unless the entry to the dwelling component of the proposal is a separate and distinct entry it could be concluded that the condition is met and there is no permit requirement for the dwelling component of the proposal.

27 A permit is not required for the use of the site for apartments given the layout of the proposed development.

28 The site is also subject to a Design and Development Overlay [DDO], with the provisions of schedule 6 being applicable. A permit is required to construct buildings and works under the DDO unless the schedule says that it is not required. The schedule does not say this.

29 The schedule includes design objectives for the Hampton Street Activity Centre and sets out various requirements for buildings and works including maximum building height and storeys as well as setback requirements. In particular, the maximum height is 13.5 metres and 4 storeys; and a 5m setback from the street frontage is required at the top storey. Given that the property to the east is an office, the site is beyond the setbacks required for residential titles. Although the table to the schedule says that it sets maximum heights and minimum setbacks, the provisions of the DDO at clause 43.02 say that a permit can be granted to construct a building or carry out works that do not accord with its requirements. The schedule does not say that a permit cannot be granted if its requirements are not met.

30 The DDO provisions were not in place at the time of the hearing; however, they were subsequently introduced into the planning scheme via Amendment C51. These controls have been introduced on an interim basis and are set to expire on 30 June 2007. There are 2 things to note about these controls. First, while the controls were not in place, the heights and setbacks are based on those specified for the area in the Hampton Street Centre Draft Structure Plan. The merits of the heights specified in the draft plan were the subject of submissions and evidence at the hearing. I am satisfied that parties had the opportunity to make submissions about the structure plan and the implications for height and setbacks. Second, although the controls are of interim nature; nonetheless, they are in force and form part of the planning scheme. The tribunal is required to consider the merits of a proposal based on the provisions of the planning scheme as they stand at the time the decision is made[4]. The design objectives to be achieved as well as the height and setback controls now need to be given far more weight given that they are part of the planning scheme as opposed to the weight that they could be given while in a draft structure plan.

31 Car parking requirements are set out at clause 52.06. The table to the clause sets out requirements for offices and dwellings as well as design standards to be met. Twenty five car spaces are required under the standards set out in the table; however, the provisions of clause 52.06-1 also provide discretion for car parking requirements to be reduced or waived. Bicycle parking requirements are at clause 52.34.

32 The purpose of the zone and overlay as well as the various decision guidelines to be considered say that consideration must be given to the planning scheme's policies. There are various policies, objectives and strategies in both the planning scheme's State Planning Policy Framework [SPPF] and Local Planning Policy Framework [LPPF] that are in some way relevant to the consideration of this proposal. These were comprehensively covered in the submissions presented by Ms Lane and the other parties made reference to them.

33 I do not propose to set out all the policy details in these reasons; rather, I will refer to the various policies and guidelines as appropriate later. It is appropriate though that I make note at this point that the policies that are most relevant to the consideration of the proposal in the SPPF include clause 12 which is based on the metropolitan strategy Melbourne 2030; clause 14.01[Planning for urban settlement]; clause 17.01 [Activity Centres] and clause 19.03 [Design and Built form]. In relation to the LPPF, the objectives and strategies set out at clause 21.05 [Housing] and 21.05 [Activity Centres] are most relevant.

34 I was also referred to the Guidelines for higher density housing and the Activity centre guidelines. Again I will refer to these as appropriate.

35 Like many cases before the tribunal, this one was keenly contested by the parties. Although their respective positions were some distance apart with respect to what is an acceptable outcome, they did share some common views, even if they were only "in principle".

36 For example, there was no dispute that the site presents itself as a redevelopment opportunity within the activity centre and that it would be appropriate for it to be redeveloped. It is not difficult to see why the parties would share this view. The site is located in one of the municipality's major shopping centres. The centre is important not just in local terms, but also at a metropolitan level as it is identified as a major activity centre under Melbourne 2030. The building on the site is somewhat unremarkable in terms of its appearance and the contribution that it makes to the centre. The building covers only half the site; provides a modest floor area and appears somewhat dated. Indeed, Mr Henderson described it as an "eyesore". Even though the site is not very big, it is underutilised and clearly capable of supporting more development than it presently does.

37 There was also no dispute that the decision as to what is appropriate for this site needs to be based on the policies and guidelines that apply. Mr Henderson made it clear that the development of the activity centre and the principles of Melbourne 2030 are supported. The applicant did not take issue with this.

38 There was also no dispute about the use of this site for offices and apartment style dwellings. While I have been required to work out whether a permit is needed to use the land for dwellings, the council and the objectors did not suggest that the proposed uses are inappropriate for this site.

39 Nonetheless, there is a dispute and, as usually is the case, it arises because parties have different expectations about what would constitute a reasonable level of development.

Are the height, bulk and form of the building acceptable from a neighbourhood character and streetscape viewpoint?

40 The council and the objectors expressed many concerns with respect to the intensity of the development proposed. The key areas of concern were the 5 storey height of the building and the bulk it would present to the streetscape and neighbourhood. Concerns were also expressed about the detailing of the building, particularly of the north facing wall. It was submitted that the height and bulk of the building would be out of place within this activity centre where the existing built form mainly comprises single and double storey buildings. It was also submitted that the height and bulk presented would be overwhelming, particularly when viewed from the residential area further west as well as the most proximate residential properties belonging to the Hendersons, the Leeuwenburgs and the Grants.

41 It was submitted that while the site is suited to being redeveloped and policies provide support for more intense development, the proposal is well over what would "fit in" with neighbourhood character. In this regard, Ms Lane said that a building with a height of 10.5 metres or 3 storeys would represent an appropriate balance between the application of those policies that encourage more intense development against those that call for development that is respectful of neighbourhood character. Mr Henderson submitted that a 2 to 3 storey development would be in keeping with the neighbourhood character. Mr Mumby supported this view and cited several examples of sites in the activity centre that have been redeveloped with 3 storey buildings.

42 Mr Bisset submitted that the planning scheme policies and controls make a clear distinction between the outcomes to be achieved on sites in major activity centres compared to those that are located within residential areas. Mr Bisset submitted that the planning scheme's policies send out an unambiguous message that encourages the intensive redevelopment of sites like this to achieve the concentration of activity and housing within preferred locations close to existing services and public transport.

43 In relation to the specifics of the built form, Mr Bisset acknowledged that the proposal would be different to other buildings. However, he submitted that "someone must go first". Mr Biles, a town planner and Mr Sheppard, an urban designer, considered the merits of the design having regard to not just what exists now, but also taking into account the form of redevelopment encouraged on other sites in the area. In this regard, photomontages showing both the proposed development and the possible massing of buildings on other sites were tabled to show how the building would fit into the area.

44 I agree with Mr Bisset's submission that the various layers of policy send out a clear, unambiguous message that more intense development on sites in activity centres like this one is encouraged.

45 For example, the strategies for major activity centres at clause 12.01in the SPPF encourage their development to accommodate on going investment and change in office and residential markets and their growth in preference to other lower order centres. Major activity centres are also identified as one of the preferred locations for higher density housing.

46 However, what also needs to be considered is that the council's local strategies, as expressed within the Municipal Strategic Statement [MSS], support the thrust of the SPPF policies. The first objective at clause 21.05-1 of the MSS is "to accommodate increases in residential population levels and changing demographic profiles". The very first strategy to facilitate this objective is "to encourage higher density housing in activity centres and residential opportunity areas......particularly those that have good access to public transport". The site is located both within an activity centre that is well served by public transport and a "residential opportunity area" as defined by the council in its Strategic Framework Plan[5]. There is no doubt that the council's strategies direct more intense development to sites in activity centres like this one.

47 The proposed building is higher than those on the surrounding properties. Buildings along Hampton Street are mainly single and double storey although there are some recent examples of 3 storey development that has been stepped back from the street. Houses in the residential hinterland to the west are usually single storey. As suggested by the council, the objectors and even Mr Sheppard, it is not difficult to come to the conclusion what is proposed represents a departure from what already exists in the immediate context. Mr Biles also acknowledged that the proposed building would "change the built form" of the area.

48 However, it is overly simplistic to look at whether a proposal "matches" what already exists in deciding whether it is represents an acceptable form of infill development. I was not persuaded that the planning scheme's policies restrict the height of development to that which already exists in order for it to be considered respectful to the character of the area.

49 The urban design strategies at clause 12.05-2 include requiring development to respond to its context in terms of urban character and reinforcing the special characteristics of the environment and place. The MSS, at clause 21.06, includes the objective "to facilitate attractive, well designed centres that are in keeping with the neighbourhood character".

50 I would make 2 observations about these statements. The first is that the notion of "responding" to the context does not necessarily mean replicating what exists. A "responsive" approach to context needs to take into account more than the physical context, it also needs to take into account and embrace the "policy" context set out in the planning scheme as a whole. It would be somewhat pointless to have policies and strategies in the scheme that call for more intense development only to have them stifled because the outcome they seek is different to what exists. As noted by the tribunal in Domus Design v Glen Eira CC[6], this would be like driving a car with the foot on the accelerator and the brake at the same time. In this case, the purpose of the Business 1 zone that applies and the policies in both the SPPF and LPPF clearly encourage more intense development in this location compared to others.

51 The second observation to be made is that the SPPF and the council's MSS acknowledge that more flexibility is needed in major activity centres and residential opportunity areas.

52 Clause 12.01-2 in the SPPF sets out strategies that are generic to all activity centres as well as those that are specific to a particular type of centre. In terms of the specifics, Major activity centres should "have the potential to grow and support intensive housing developments without conflicting with surrounding land uses". Further, growth is encouraged in Major activity centres with good public transport links in preference[7] to other centres serving the same catchment.

53 Compare these with the strategies for an activity centre further down the hierarchy such as the neighbourhood centres. Higher density housing is also encouraged within and around neighbourhood centres; however, the relevant strategy says that such development should be designed "to fit the context and enhances the character of the area while providing for a variety of housing options". There is no equivalent statement in the strategies for Major activity centres.

54 The strategies for activity centres envisage that there will be development in both the higher and lower order centres; however, the extent and type of growth that ought to be anticipated is different.

55 In relation to the LPFF, clause 21.05-2, the MSS says that:

There is a need to ensure that, outside of residential opportunity areas[8], subdivision and redevelopment does not significantly erode the prevailing scale and density of housing.

56 The above statement suggests that the need to ensure that the prevailing scale and density are not eroded applies to locations that are outside residential opportunity areas. I take this to be the residential hinterland. This site however is located within a residential opportunity area. The inference to be drawn from the MSS is that there is more flexibility to depart from the prevailing scale and density when the site is within a residential opportunity area.

57 The MSS objective at clause 21.06-3 seeks an outcome where development is "in keeping with neighbourhood character". The first strategy to achieve this is to provide design guidelines for each centre. The council prepared a draft structure plan for Hampton Street Centre. Under the strategy, the site is located within "Precinct 2 - Supporting Retail area" and in Area "A" in terms of the built form requirements. The built form requirements for Area "A" say that buildings can be up to 10.5 metres high at the street frontage and can include an upper level up to 13.5 metres if it is recessed from the street boundary by at least 5 metres. These building height and setback requirements are now reflected in schedule 6 to the DDO which also sets the maximum height at 4 storeys. It is relevant to note that the first and second design objectives in schedule 6 to the DDO are:

To ensure that the height of new development is compatible with the character of the major activity centres and adjacent sites of .........Hampton Street Hampton.......

To maintain the prevailing streetscape rhythm, building scale and height of the centres.

58 I acknowledge that the DDO6 provisions have been introduced on an interim basis; however as noted by the tribunal in First Maroona Nominees v Bayside CC[9] , the tribunal's role is to apply the planning scheme as it stands today even though the structure plan process has not been completed. With respect to the role of DDO6, the tribunal went on to say:

Related to this is whether the proposal should be rejected because the strategic/structure planning process is incomplete. We do not accept this submission put by some Respondent Objectors. DDO6 provides a framework for decision-making while the strategic planning process is advanced by the Council. It is also necessary on this point to record our understanding from reading the explanatory statement to Amendment C51 that the Overlay provisions are said to be consistent with the directions of Melbourne 2030, a matter Mr Stewart questioned. Time will tell whether the current DDO6 requirements remain or another set of requirements is introduced, whether or not of a more liberal nature. But these are matters for the planning authority/ies.

59 When consideration if given to the above, I am unable to come to the conclusion that there is a policy based reason to limit redevelopment on this site to 2 or 3 storeys on neighbourhood character grounds. The DDO6 objectives are directed toward ensuring that height of new development is compatible with character. The height and setback provisions are specific to this area. The maximum height is set at 4 storeys. The DDO6 height provisions sit reasonably comfortably with the thrust of the planning scheme's policies that direct higher density development to locations like this while setting out what is considered to be a reasonable response to existing character.

60 However the applicant is not seeking a permit for a development that complies with the maximum height and setbacks specified in the schedule. The proposal exceeds the maximum height by 1 storey and about 2.5 metres[10]. The DDO provides discretion to allow this.

61 Mr Sheppard and Mr Biles were prepared to support the development of a 5 storey building on this site given the policy context, the likely future character that would arise when development on other sites occurs and the specific attributes of the design. Both witnesses put forward the view that the proposal should not be assessed in isolation. Rather, the view advanced was that the building should be assessed on the basis of how it would fit in when surrounding properties, such as the office site to the east and shops to the west are redeveloped as envisaged by the DDO6.

62 I was presented with various photomontages showing how the proposed building would be seen in the area. Some were prepared by the objectors and others by Orbit Solutions, a professional specialising in their production[11]. What was depicted in the photomontages was a reasonable depiction of what would be seen, although in fairness, those prepared by Orbit would be more accurate. The orbit photomontages show the proposed building in situ on the site with potential development on surrounding sites shown diagrammatically.

63 In assessing whether a building would fit in, it is not unreasonable to take into account the type of redevelopment that would accord with policy and the DDO6.

64 I accept that the site has a number of attributes that would favour the potential for the building height to exceed the 4 storey DDO6 maximum. The site is about 30 metres and down slope from Hampton Street. The slope would allow for the roof height of the proposed building to approximate that of a 13.5 metre high building on a site fronting Hampton Street. Given the distance from Hampton Street and the slope, I agree that the proposed building would not have an overwhelming impact on Hampton Street streetscape.

65 However, the "slope" advantage gained to the east becomes a disadvantage when the building is viewed from the residential area further west. Even though the upper levels have been stepped back from the Grant Lane frontage, the 5 storey height of the building would still be perceived from further west along Willis Street.

66 It is true that some consideration should be given to the likely development on the office site on the opposite side of Grants Lane. I agree with Mr Sheppard that it would be reasonable to assume that it is likely that it would be a double storey development given that properties direct interface with a residential property.

67 The question is whether the stepping down of the building at the upper levels and the likely development of the adjacent site would provide a reasonable transition in height down from the activity centre to the residential hinterland. I have formed the view that it does not. The 4 storey height maximum specified in DDO6 together with the slope would work together to create a stepping down on built form that follows the topography. While the introduction of the 5th level would not be imposing on Hampton Street, nonetheless, it would work against the notion of development stepping down Willis Street. I would have arrived at this view whether or not the DDO was in place.

68 Accordingly, I have not been persuaded that there should be departure from the requirements specified in DDO6. The building should be reduced by 1 storey. Further, I also consider that any fourth level should be setback 5 metres from the Willis Street frontage as specified in the schedule to soften the impact on the streetscape. In my view, such a development would represent an appropriate balance between policies that encourages more intense development and the need to respond to neighbourhood character; consistency with the DDO6 height and setback provisions for this area and a built form that fits appropriately into the context.

69 Concerns were also raised about the presentation of a blank wall to the east. It was submitted that these walls would emphasis the bulk presented by the building to the detriment of the amenity of the nearest neighbours.

70 The assessment of these concerns needs to take into account my conclusion that the building needs to be reduced by 1 storey. It is true that relatively flat walls would be presented to these neighbours; however, the walls would not be blank. The applicant proposes to finish the pre-cast concrete panels with a reasonably detailed pattern.

71 I do not consider that the presentation of the northern wall would be unacceptable. The site is located within a commercial area. It is reasonable to expect boundary development in such areas. Further, it is also appropriate that buildings in commercial areas, particularly those areas identified for more intense development, are designed so that they do not have unreasonable impacts on the development potential of neighbouring sites. The provision of boundary walls that allow development on neighbouring properties to abut onto them is consistent with the pattern of development in the commercial area and facilitates the effective and efficient use of land. The use of a detailed pattern in the pre-cast concrete panel represents a considered and reasonable approach.

72 The building as proposed is not acceptable. However, I would find the height, bulk and form of a building with 1 less storey and the uppermost level setback off Willis Street acceptable. I would expect that such a modification would result in 1less dwelling.

Would the proposal have unreasonable impacts on the amenity of the area?

73 In addition to the issue of height and bulk, other concerns were raised about the impact that the proposed development would have on the amenity of the area. These concerns related to parking, traffic, overlooking and adverse impact on the outlook from balconies and decks.

74 Before turning to these specific issues, it is appropriate to say something about the approach to be taken in assessment of amenity impacts given the commercial context of the site. The tribunal has often said that sites located at the interface of residential and commercial require a balanced approach to be taken. In this regard I refer to and express my agreement with the comments of the tribunal in Keghlan Pty Ltd v Mornington Peninsula Shire Council[12], when it said:

With respect to transitional sites or sites located at the interface of zones, the Tribunal has said on numerous of occasions that there needs to be an expectation that in each zone, the use and development of land will be constrained or influenced by the adjacency of land in the other zoning. It has been said, for example, that dwelling owners/occupants if they occupy premises at the interface with a commercial or industrial zone, cannot expect to enjoy the same level of residential amenity as persons occupying residential properties more remote from the interface. Similarly, the Tribunal has said that persons operating businesses at the edge of a commercial zone must expect to have constraints imposed on their activities or development in recognition of the need to maintain the amenity of an abutting residential zone (or open space area), which constraints would not apply in other more central parts of the commercial zone.

75 In this case, it is relevant that the dwellings occupied by the Hendersons and the Leeuwenburgs are located within the Business 1 zone that forms part of a major activity centre. The context of their respective dwellings is commercial and in an area where intense development is encouraged. The Grants dwelling is located directly at the interface between the business and residential zones. Expectations of whether amenity impacts are reasonable need to take this context into account. Further, it is also relevant that the site does not abut any of these dwellings; it is surrounded by land zoned for business purposes. This is also relevant in terms of the applicant's expectations.

76 There are a number of aspects to the car parking and traffic concerns raised by the council and the objectors. The first is whether enough car spaces are provided. The second is whether the layout is appropriate given the need for a car lift. The third aspect is whether the delays associated with cars waiting for the lift would result in congestion in Grants Lane. The fourth is whether the traffic generated by the proposal can be accommodated. A further concern was also raised about pedestrian safety and amenity in Grants Lane.

77 In considering thee issues, I had the benefit of hearing from 2 traffic engineers, Mr Thomson called by Mrs Henderson and Mr Tucker called by Mr Bisset.

78 Eighteen car parking spaces are to be provided on site. Mr Thomson's evidence was that the proposed use of the land would generate a demand for 21 car spaces if there are 5 apartments. This would mean a shortfall of 3 spaces. Mr Tucker expressed the view that a demand for 19 car spaces based on his empirical assessment. Putting aside how they arrived at their respective demand figures, it is obvious that they are not far apart. Further, it is likely that the deletion of 1 storey would result in the dwelling yield being reduced by at least 1. Allowing for this, Mr Thomson's parking shortfall would be 2 spaces while Mr Tucker would say that all the required parking is provided on site.

79 The council's position is that a permit for a reduction in car parking should not be grated and all the car parking should be provided on site. I do not agree. Even if I adopt Mr Thomson's figure as being correct, the shortfall in parking is very small. It is so small in the context of a major activity centre that it is insignificant.

80 The provisions of the planning scheme provide for permission to be granted for a reduction in car parking. There is plenty of justification in this case. The proposed use and development accords with what is encouraged by policy. The site is located in a major activity centre. Good public transport is available. The extent of reduction required is very minor. It would be inappropriate to refuse this type of proposal because of the number of car parking spaces.

81 The need for a car lift was also of concern. The council is concerned about the need to use such a lift would be "inconvenient", not user friendly and problems would arise in the event of a mechanical breakdown.

82 I accept that the need for a car lift would not result in a car parking layout that is as convenient as one that is based on traditional standards. However, it is not uncommon for approval to be given for car parking layouts that are not the most convenient. For example, the use of tandem car parking spaces in residential and commercial situations is commonplace. The use of mechanical car stackers is now more prevalent. Neither of these 2 parking arrangements could be said to be the most convenient; however, they work.

83 It would be fair to say that the use of car lifts is not commonplace; however, this does not mean that they should not be entertained. This is particularly so in this situation which involves a reasonably small car park and uses such as apartments and offices where longer term occupation of spaces is likely. I do not agree that a second lift is required in these circumstances.

84 As with all mechanical equipment, there is the potential for the lift to break down. The same could be said about all types of plant within buildings; however it does not mean that new development is rejected because of this potential. It is not common for double the plant required for a building to be provided "just in case". If there is a break down, my expectation would be that repairs would be undertaken as soon as practicable. It would be a requirement of the permit that the car parking provided is made available. If it is not made available other than for a reasonable time to make repairs, this would be contrary to the permit that is granted.

85 It is also likely that the people using the car park will be regular users, residents and office workers, who will become familiar with how best to access the spaces. On reviewing the layout, most car parking spaces are wider than what is required while the access aisle is over 6.4 metres. Care has been taken to locate the wider spaces next to walls to provide better opportunity for manoeuvring. To further assist manoeuvring, Mr Tucker has recommended to spaces 8 and 11 be widened marginally to 2.7 metres and supporting columns relocated. These are minor changes and can be implemented by conditions. Holding or waiting areas are provided at each level to store vehicles in the event that the lift is in use. Mr Tucker recommended some additional line marking in the form of a "hold line" and the installation of convex mirrors to improve sight lines. I agree that it would be appropriate for these measures to be provided.

86 There were also concerns that delays associated with the use of the lift during the morning and afternoon peak hour period would result in Grants Lane being blocked. Mr Thomson's probability assessment was that once in every 20 peak hours it is likely that there will be a vehicle waiting to use the car lift blocking access in Grants Lane. This is based on a scenario where there may be 3 cars wanting to use the lift at the same time in the peak hour. Mr Tucker's assessment was that the probability is much less than this.

87 It is somewhat ironical that I was advised that a factor that should weigh against this proposal is the inconvenience that it would cause to a retailer on the adjoining site. Apparently that retailer has trucks parked in Grants Lane for loading and unloading. I observed this happening on my inspection. I would think that a busy retailer would need loading facilities more regularly than once a month; however, this did not seem to be a major concern to the council or the objectors. It is not uncommon for rear laneways to be used in this way in older established areas where commercial properties lack loading bays. The inconvenience this causes is just part and parcel of this type of urban environment. By and large, traders and residents understand and accept that there will be some inconvenience.

88 The extent to which the use of the car lift would cause blockages in Grants Lane needs to be put into some perspective. The proposal involves a small car park. There are about 40 peak hours each month[13]. The blockage to traffic in Grants Lane predicted by Mr Thomson could occur is once every 20 peak hours, or about twice a month. At other times, when the number of movements would be significantly less, so would the probability of a blockage. Even if I accept Mr Thomson's more conservative assessment, I do not consider that the probability of a blockage significant enough to find that the use of a car lifts is inappropriate.

89 Mr Henderson raised concerns about the capacity of the Willis Street/Grants Lane intersection to accommodate the additional traffic generated by the proposal. This concern was heightened given that Mr Tucker's report did not acknowledge that a crossing to the Safeway car park on the opposite side of Willis Street has the effect of creating a cross intersection with Grants Lane. Further, Mr Henderson was concerned that the Safeway supermarket was being redeveloped when the Mr Tuckers traffic counts were taken thereby resulting in an underestimate of traffic volumes.

90 Mr Thomson examined this issue in light of his client's concerns. While he agreed that traffic volumes would be higher than those considered by Mr Tucker, he nonetheless agreed with Mr Tucker's conclusion that there is sufficient capacity in the Willis Street/Grant Lane intersection to accommodate the additional traffic generated by the proposal.

91 It was also suggested by the objectors that if this proposal is approved, the building should be set back 1.4 metres from Grants Lane to enable it to be widened to 5 metres. In his report, Mr Thomson said that this was justified given that in his estimation, the traffic added by the proposed development would result in overall volumes ranging from 28-33 vehicles during the peak hour. He said that if the Australian Standard and the provisions of clause 52.06-3 for driveways are applied, Grants Lane should be widened to 5 metres.

92 The difficulty I have with the approach taken by Mr Thomson is that it does not place sufficient regard to the fact that Mr Tucker's firm carried out surveys during the peak hours where the peak volume was measured at 11 vehicle movements. Rather, he adopts a very conservative estimate that every car space located south of the dogleg in Grants Lane will generate a vehicle movement within the peak hour. This is too conservative. It is difficult to accept that it is realistic.

93 The overall amount of traffic generated by the proposed use of the site, as estimated by Mr Tucker, is about 73 movements per day. The increase in traffic is modest. The level of traffic being added to Grants Lane is not dissimilar to that added to many laneways in situations like this, yet no widening is required. This proposal does not tip the balance in favour of widening of Grants Lane for traffic reasons. The council agrees with this conclusion[14].

94 In relation to pedestrian amenity, Grants Lane is divided into 2 sections. Traffic generated in the southern leg cannot go to the northern leg. Further, given the dogleg, it is more likely that traffic going to the site would enter off Willis Street.

95 The Henderson and Leeuwenburg dwellings have their pedestrian access off the northern leg of Grants Lane. Traffic conditions would not change in any substantial way in this part of the lane. Walking to Hampton Street via the northern leg of Grants Lane may not be as convenient as going down the south leg in some cases; however, these dwellings do not have a frontage to a conventional residential street. Expectations as to what is reasonable and the compromises that may need to be made have to take this into account.

96 I am not saying that the widening of Grants Lane is undesirable; rather, my conclusion is that it is not required for this development. If it is considered desirable to widen Grants Lane to benefit the wider are, this can be done. However, the council needs to put in place zonings to reflect the widening that it seeks and to compensate land owners for the land that they are asked to give over. Ms Lane advised that the council is not prepared to entertain widening Grants Lane if it involves paying for the land that is given over. Further, even if this proposal proceeds, this does not mean that the laneway cannot be widened on its west side. If this is considered desirable than the appropriate zoning should be put in place.

97 My conclusion is that subject to the suggested modifications put forward by Mr Tucker, the amount of car parking, the layout and access arrangements are satisfactory.

98 Next I turn to the issue of overlooking. It was submitted that the upper level decks to the apartments present the potential for overlooking of residential properties. I appreciate that the residents would be anxious about the potential to be overlooked; however, 2 things need to be noted. The first is that the dwellings are located some distance away from the site; well over the 9 metre threshold distance set out in Clause 55 that is applied in residential situations. Second, the applicant has agreed to introduce fixed louvres to the northern end of the balconies to prevent direct views. Given the distances involved and the provision of the louvres, opportunities for direct overlooking would be very limited and acceptable.

99 Concerns were also raised about the impact that the proposed building would have on the outlook from dwellings. The building would clearly be seen from the decks appurtenant to the Henderson and Leeuwenburg dwellings as well as from the Grants backyard and kitchen window. Neighbours further west may also see the upper part of the building from backyards.

100 The most proximate residential properties are either in or in close proximity to land zoned Business 1 and a major activity centres. Expectations as to what may happen on neighbouring sites must take this into account. The DDO6 provisions contemplate 4 storey buildings.

101 Further, there is nothing in the planning scheme to say that "views" are a relevant consideration. A long standing principle adopted by the tribunal is that there is no legal right to a view and while the loss of a view can be taken into account, this needs to be considered in light of what constitutes the reasonable sharing of views[15].

102 The main outlook from the Henderson and Leeuwenburg dwellings is directly west over the residential hinterland and the bay beyond. Panoramic views are available. The proposed development would intrude on part of those views, but not the major part. Views over the residential hinterland and toward the bay would still be available to these properties. This is consistent with the notion of view sharing.

103 The Grants southerly outlook is toward their backyard and commercial properties. The potential to see commercial buildings from residential properties near activity centres like this one must be anticipated.

104 I have not been persuaded that the impact on views and outlook from the most proximate residential properties would be unreasonable.

Is the design of the building appropriate having regard to solar orientation?

105 Ms Lane and the objectors also expressed concern about the way that the building has been designed, to have residential apartments that have their main orientation toward the west and south with no north facing windows.

106 Designing buildings so that they take advantage of the northern aspect is very desirable, but it is not always practical or possible. For reasons outlined earlier, the provision of side walls that allow for the efficient development of adjoining properties is appropriate.

107 This site is situated so that the logical outlooks will be to the south and west. It is desirable that there be an outlook toward Willis Street which is this site's frontage. It is also appropriate to have an outlook toward the west in the circumstances of this case. The reality is that bay views are desirable and highly south after. It is apparent that these westerly views contribute to the amenity enjoyed by both the Hendersons and Leeuwenburgs. The failure to capture such views would be a flaw in the design.

108 In Bamfra Nominees Pty Ltd v Darebin CC[16] the tribunal was confronted with a not dissimilar issue which required balancing solar access with the opportunity for views. The tribunal said:

Three of the four buildings proposed will have apartments with only a southern aspect, together with some corner apartments which either have a south and east or a south and west aspect. For these dwellings there are obviously implications in relation to sunlight penetration into the dwellings themselves and on to their balconies. It is almost inevitable that in large scale developments such as this, some dwellings will face south. In this case views to the south towards the city skyline are likely to be the a [sic] valued attribute of south facing dwellings on these sites, and these building will be less exposed to traffic noise. We are satisfied that the dwellings in these buildings with a southern aspect will provide a satisfactory degree of amenity to future residents, notwithstanding the lack of any northern aspect.

109 The westerly outlook will present exposure to the hot west sun. This needs to be dealt with. However, various measures such as pergolas, eaves, awnings, tinted glazing etc. can all be used to mitigate the impacts.

110 For the reasons set out above, my conclusion is that the construction of a 4 storey rather than a 5 storey building on this site represents an appropriate outcome. Such development would represent an acceptable response to the site, its context, policy, the DDO and amenity.

111 I will grant a permit for the construction of a 4 storey building and a reduction in car parking. I will require amended plans to be prepared. The plans must show a building that is no higher than 4 storeys. The uppermost level is to be deleted. This would result in a building with a height of about 13.5 metres. Further, the 3rd floor level is to be modified to provide for a 5 metre setback to Willis Street, with the setback to Grants Lane generally maintained as proposed and used for balcony space. The floor layout will need to be amended. It may be that the floor area only allows for a single apartment; however, if 2 apartments can still be accommodated, this is acceptable.

[1] As per the schedule tabled by Mrs Henderson

[2] Richard Swansson v Bayside CC [2004] VCAT 203

[3] [2006] VCAT 683

[4] See Ungar v City of Malvern [1979] VicRp 25; [1979] VR 259

[6] [2001] VCAT 2330

[9] [2006] VCAT 1993

[10] This excludes the lift housing which adds an extra metre to the height of the building.

[12] [2000] VCAT 2538

[13] Assumes 20 working days each month with a morning and afternoon peak each day.

[14] This view is expressed in a letter dated 10 April 2006 from Ms Lane to the tribunal

[15] See Tashoundis v Flinders SC (1987) 1AATR 116

[16] [2003] VCAT 1741