The Crema Group Pty Ltd & Ors v Yarra CC [2011] VCAT 199

1. The decision of the Responsible Authority is varied.
2. A permit is granted and directed to be issued for land at 7 Newry Street Richmond. The permit allows:

Buildings and works to develop land with a four storey residential development for up to twenty four dwellings (apartments) and reduction in car parking required under clause 52.06 generally in accordance with the endorsed plans.

1. The permit must contain the conditions set out in the Notice of Decision to Grant a Permit issued on 26 August 2010 but with the following variations:
   • (a) In condition 1, amend parts (a), (c), (g) and (p) to read:
     • (a) the deletion of any reference to the dismantling and rebuilding of the existing walls along the southern, western and eastern boundaries and that walls are to be retained except for new door, window and balcony openings;

(c) darker shaded colour scheme on the ground, first floor and second floor level, with a lighter shaded colour scheme on the third storey;

(g) all external plant and equipment concealed from view from the Glass and Newry Street interfaces and open space areas of adjacent dwellings, and acoustically baffled or otherwise sound treated;

(p) A 2.5 metre length of the external wall to the south of the vehicular access point to Glass Street to be constructed with a permeable material to provide visibility for pedestrians and vehicles for cars exiting the car park.

(b) In condition 1, add the following new parts (q) and (r) which are to read:

• (q) the balcony attached to apartment G.02 at the southwest corner of the development be provided with a permeable wall and vegetation not to exceed a height of 1 metre; and

• (r) the allocation of 1 storage cage to each dwelling.

(c) Condition 7 is modified to read:

1. No fewer than 24 car parking spaces must be provided on the land at all times to the satisfaction of the Responsible Authority. Except with the written consent of the Responsible Authority, one car space must be allocated to each dwelling.

(d) Condition 10 is modified to read:

1. Except with the written consent of the Responsible Authority, before the dwellings are occupied, a waste management plan must be submitted to the Responsible Authority. The plan must provide for:

(a) The collection of waste and/or recyclable materials by the Council or private contractor;

(b) The location where bins are to be kept prior to collection;

(c) The location where refuse and recyclables are to be collected;

(e) Arrangements for bins to be returned to the bin storage area after collection;

When the plan is to the satisfaction of the Responsible Authority, it will be approved and form part of the permit. The plan must be implemented to the satisfaction of the Responsible Authority.

Mr J Kiriakidis, Traffic Engineer, GTA Consultants.

Goldred Pty Ltd, Mr Maarten Rosenburg and Ms Marlene Sharp

Mr P Barber, Planning Consultant, Urban Edge Consultants.

Alterations and additions to an existing industrial building to create a four storey building containing 24 apartment style dwellings. It is intended to incorporate part of the side walls of the existing building into the new development. As such, the proposed building would be constructed to all site boundaries, except for part of the north boundary. The overall height of the building is to be 13.29 metres (plus 800mm lift overrun) with the uppermost fourth level designed to be stepped back from the line of the levels below. Twenty four car parking spaces are to be provided within mechanical parking stacker units.

Sections 80 and 82 Planning and Environment Act 1987

Design and Development Overlay - schedule 5 [DDO5]

cl. 32.01-4 (construction of more than 1 dwelling on a lot in R1Z)

cl 52.06-1 (Reduction in car parking requirement for dwelling)

1. The subject land is located on the northeast corner of Newry Street and Glass Street in Richmond. It is occupied by a two storey brick industrial building that dates from the early part of the 20th century. The building is constructed to both street frontages, the east boundary and part of the north boundary. It is now used for office purposes.
2. The Crema Group lodged a permit application with the Yarra City Council to carry out alterations and additions to the existing building. The proposed development incorporates part of the existing boundary walls to create a four storey building containing 24 apartment style dwellings.
3. Despite receiving 65 objections, the Council decided that it would approve a three storey development subject to conditions. Condition 1 on the Notice of Decision to Grant a Permit [NOD] issued by the Council requires amended plans to be submitted. Part (p) of the condition requires the plans be changed by deleting the uppermost level of the proposed building.
4. The Crema Group has lodged an application seeking the review of condition 1(p). It contends that the proposed development, at the four storey height submitted to the Council, is appropriate for the site and represents an appropriate response to planning policy and the neighbourhood character. It also submits that the proposed building would not have unreasonable impacts on the amenity of neighbours while the proposed apartments would provide future residents with an acceptable standard of amenity. The Crema Group is asking that the Council's decision be varied by deleting condition 1(p) with approval granted for a four storey building.
5. A number of the respondent objectors have not lodged an application against the Council's decision to grant the permit, but they support its position with respect to the deletion of the uppermost level.
6. However, a number of objectors do not accept the Council's decision. They have lodged applications against the decision. In general terms, they contend that the proposal is an overdevelopment, does not respect the neighbourhood character and will cause unreasonable impacts on amenity resulting from building bulk, overshadowing, extra traffic, insufficient car parking and extra noise. The objectors who have lodged the applications request that no permit be granted.
7. We must decide whether a permit should be granted, and if so, what conditions should be applied. Having considered the submissions and evidence, the relevant matters under the legislation and planning scheme, we have come to the conclusion that a permit should be granted for the construction of a four storey building containing 24 apartments as proposed in the permit application. This is a good site for redevelopment. Policy encourages its redevelopment for apartments. We find that the proposed built form is acceptable having regard to the context of the site, the policies that apply and the neighbourhood character. We find that it will not have unreasonable impacts on amenity and that future residents will enjoy a good standard of amenity. Our reasons for coming to these conclusions follow.

1. The issues are:
   • Does this site have strategic value in being redeveloped for higher density housing?
   • Is the height and bulk of the proposed development acceptable having regard to the neighbourhood character?
   • Is satisfactory parking provided?
   • Can the additional traffic be accommodated?
   • Will there be unreasonable overlooking of the neighbouring residential properties?
   • Will there be excessive overshadowing of neighbouring properties?
   • Will there be unreasonable noise?

Does this site have strategic value in being redeveloped for higher density housing?

1. To decide whether the proposed development is reasonable, there needs to be a proper understanding of the context of the site. That context is not limited to an examination of the existing built form. Rather, as noted in clause 15.01-2:

Development must take into account the natural, cultural and strategic[1] context of its location.

1. Although Mr Johnsen suggests that the existing office use is acceptable[2], this does not change the fact that the land offers a good opportunity to be redeveloped for apartments. The site is in a Residential 1 zone. Residential use, which includes apartments, is "as of right" and compatible with the zone purpose. This can be contrasted with "office", a commercial use that is prohibited by the zone provisions.
2. The site is located within relatively close proximity to two major activity centres. It is close to good public transport. Although not particularly close to the primary retail areas within the nearby activity centres, nonetheless public transport makes them accessible and also provides linkages to important employment areas like Melbourne's CBD. Contextually, the land is also relatively large compared to the smaller, fine grain properties occupied by dwellings. The existing building is not affected by heritage controls or other overlays that direct the way it can be developed[3]. It can be demolished. Further the land is set on relatively mild terrain, there is no vegetation or awkwardly positioned easements to contend with and all services are available. The site also has the advantage of being on a corner and adjacent to a site that is undergoing redevelopment. Its corner location means that on two sides, roads act as a buffer to neighbouring residential properties to the west and south. The redevelopment to the north is robust and partly three storeys. This is a good site for redevelopment.
3. State planning policy encourages a diversity of housing types within and in locations close to Activity Centres[4], increasing the supply of housing in existing urban areas;[5] and ensuring housing stock matches changing demand by widening housing choice[6]. Under clause 21.04, the MSS recognises that Yarra will continue to accommodate its share of inner Melbourne's housing growth. It seeks to direct higher density housing to strategic redevelopment sites or within activity centres. Residual population increase in established neighbourhoods is also supported[7].
4. The site has attributes that favour its potential to be redeveloped. When the above policies are considered, it is clear that they support the redevelopment of this site for housing. Given the site's location, particularly its proximity to the fixed rail public transport network, major activity centre and strong links to the CBD, policy would support it being redeveloped in a more intense way compared to sites located in remote locations some distance from facilities and services.
5. The land is not identified as a strategic redevelopment site under the map for the "Central Richmond" neighbourhood at clause 21.08 of the MSS. However, that does not mean that the site does not have strategic value. Nor does it mean that it does not provide an opportunity for a more intense development given its strategic value. As noted by the tribunal in Design Consortia Australia v Yarra CC[8], strategic maps of this kind confirm "the most notable, but not all strategic redevelopment sites" and that in the absence of any wording that specifically provides otherwise, the relevant policies should also apply to "any other sites that meet the criteria for "strategic redevelopment sites as set out in Clause 12.01"[9].
6. This view is consistent with the views formed by another division of the tribunal in Common Equity Housing v Yarra CC[10] when it said that mapped and listed sites should not be exclusive. However, we acknowledge and accept the view expressed by the tribunal in Common Equity that even though a property has attributes that make it able to be considered a "strategic redevelopment site", it does not automatically mean that such a property will be able to accommodate a building of five storeys or more as envisaged by policy[11]. Ultimately a site specific analysis is required to determine whether the level and type of development proposed is acceptable.
7. This site is located within easy walking distance of a major activity centre, close to public transport and is clearly capable of accommodating more than ten dwellings[12]. It meets the criteria for strategic redevelopment sites set out in the State Planning Policy Framework [SPPF]. Its strategic value, particularly in terms of facilitating the implementation of the planning scheme's housing and urban consolidation policies, should not be dismissed lightly. It is a site where it would be reasonable to optimise the opportunity to provide more housing and this needs to be taken into account in considering whether the proposed development is acceptable in terms of its height and design.
8. The density of the proposed development, in terms of the number and type of dwellings, is not a negative factor, as submitted by Mr Levy, nor is the potential for this site to accommodate 48 people, as suggested by Mr Williams. Rather these are outcomes that are consistent with planning policy at both state and local level that support the provision of more housing within established areas that works towards accommodating Melbourne's increasing population. That the dwellings are apartments will work toward policy outcomes directed to enhancing the variety of housing available. Nor would it be contrary to policy to provide housing that is more affordable, in relative terms, in this location.

Is the proposal acceptable having regard to the neighbourhood character?

1. The council has approved the proposed development; however, this is subject to the height of the building being reduced by one storey. It has therefore issued an NOD with a condition requiring the deletion of the top level of the building. The Council contends that at four storeys, the proposed building will result in a taller and bulkier anomaly in the streetscape. It says that the building would dominate its context. The Council acknowledges that the existing factory building already presents a different typology to the fine grain character of single and double storey dwellings. However, it submits that the existing industrial character of the building will be lost through the proposed alterations and additions.
2. The residents hold similar concerns about the height of the building. But they also contend that the density of dwellings, design of the building, the overall bulk it presents all work toward an outcome which is at odds with the single and double storey dwellings that typically exist in the surrounding area.
3. It is trite to say that planning policy supports development that is respectful of the neighbourhood character. The built form and design policy at clause 22.10 sets out objectives that describe the outcome to be achieved. The objectives include:

Ensure that new development positively responds to the context of the development and respects the scale and form of surrounding development where this is a valued feature of the neighbourhood character.

Ensure that new development makes a positive contribution to the streetscape through high standards in architecture and urban design.

1. In relation to clause 22.10-3.2 on urban form and character, the policy includes:

To retain and extend the City's fine grain of street pattern and urban form.

To ensure that developments contribute positively to the urban fabric and public realm.

1. With respect to height, clause 22.10.3.3 of the policy includes:

To ensure that height of new development is appropriate to the context of the area (as identified in the Site Analysis plan and Design Response) and reflects the prevailing pattern of heights of the area where this is a positive contribution to neighbourhood character.

1. There are two important observations to make about how the assessment of the proposal's acceptability from a neighbourhood character viewpoint is to be made. First, the words of the planning scheme do not require new development to replicate what exists. As has been said over and over by various divisions of the tribunal, the notion of respecting neighbourhood character does not mean that new development must be the same as what already exists. The assessment to be made is whether the proposal has responded, in a respectful way, to its context. Second, to do this, it is necessary for the context of the site to be examined on a site by site basis. Care needs to be taken when referring to a general description of an area. An assessment of the context should be based on what actually exists on the ground in the vicinity of any particular site, not a generalised description.
2. On our inspection, it is clear that the site context is somewhat complex. This site is not located in an area where development simply consists of single and double storey period dwellings. Rather, like may inner urban areas, there is a sprinkling of old industrial buildings in the neighbourhood. The building on the site is an example of this. Some of these buildings have been converted into dwellings. The redevelopment of this building for apartments would fit this typology. Some large sites near the subject land have already been redeveloped for two and three storey dwellings, including land to the northwest on the opposite side of Glass Street. There is a substantial parcel of vacant land to the north of the site. Part of the approved development for that site includes three storey dwellings. The front dwellings of that development have minimal front setbacks[13]. Unlike many other properties, the subject land is also located on a corner and has a laneway adjacent to part of its east boundary. This means that roads and laneways on three sides create separation from neighbouring properties. This is different to a site with a mid block context. There is also variation in the built form in this area comprising both the older period homes and relatively new medium density development. It would be wrong to generalise the context of this site as comprising single and double storey fine grain dwellings.
3. Given this context, we find this site can support a four storey building.
4. The site is located adjacent to properties that contain or have approval for three storey buildings. There are other three storey buildings in the area. The fourth storey proposed in this case does not represent a substantial variation in height. There are single storey buildings to the east and south. However, these are separated from the site by roads and laneways. Newry Street is relatively wide and provides a substantial buffer. The laneway to the east is typical of the width of those found in the inner city. But the relationship between the proposed development and its neighbours to the east needs to be considered in the context that those dwellings back onto the site and front Edinburgh Street.
5. It is also relevant to consider the way the proposed building has been designed. As noted by the Council, the tribunal's decision in Rowcliffe v Stonnington CC[14] makes it clear that "....if mere visibility becomes the test across metropolitan, then it will be virtually impossible to construct buildings above the prevailing scale......this would render it impossible to achieve urban consolidation objectives expressed in the planning scheme......".To reduce the visual impact, the fourth level has been stepped back from the line of the three levels below. This, together with the façade materials and colours, will work towards it being read as a recessive element. While it will be seen from various vantage points including neighbouring properties to the south, east and west, we do not accept that the building would present excessive bulk to them or to the streetscape. Sky views will still be available in various directions from those properties.
6. Even though there are no other four storey buildings in the immediate vicinity, we find that the context of the site allows for the development of a fourth storey as part of this development as proposed.
7. In relation to other aspects of the overall proposal, it is relevant to look at the Council's decision. The Council has not rejected the proposed building; rather it is seeking that the top floor be deleted. Even if the top floor is deleted, the resulting building would not reflect the fine grain pattern of the smaller period dwellings found in the area. The building would still take on the proportions and massing reflecting its industrial past. The Council has accepted that a building constructed to both street boundaries and to the east laneway is appropriate. We agree. This is because buildings of an industrial form or typology have been part and parcel of residential neighbourhoods like this one. Although they are not the same as the dwellings, they contribute to the complexity of the built form and an understanding of the past relationship between industrial activity and its workforce in one of Melbourne's inner areas. Ultimately this adds to the interest and vitality of areas like this. We do not accept that there is a neighbourhood character reason for the building to be setback off the street boundaries. It is likely the external walls to be retained will undergo considerable change to enable them to be adapted for the proposed development; however, the building will still present an understanding of its industrial history.
8. The design allows for most dwellings to have a direct interface with the adjacent streets through the use of windows and balconies. The scale of the building at footpath level is three storeys as the fourth level is stepped back. The zero setback alignment, windows and balconies and three storey height provide a satisfactory interface to the street. The absence of landscaping is something to be expected with a development of this type.
9. We find that the proposal represents a satisfactory response to the site's attributes, its context and the character of the area as required by policy and the Guidelines for Higher Density Residential Development.

1. A number of the residents submit that the proposal fails to provide satisfactory parking. They express concern that the overall number of spaces is insufficient; there is no dedicated visitor parking and kerbside parking resources will not be able to accommodate overspill parking because they are already in high demand.
2. It is proposed that 24 car parking spaces be provided on site and that one car space be allocated to each apartment. Under clause 52.06 of the planning scheme, two car parking spaces are to be provided for each dwelling. The proposal does not meet this requirement. Therefore, a permit is required under clause 52.06 to reduce this requirement.
3. There are a number of reasons why a permit should be granted.
4. First, the rate specified in the planning scheme applies throughout Victoria. It does not take into account matters such as context; the availability of public transport, dwelling type/size as well as proximity to services, facilities and employment. All of these can influence parking demand. The planning scheme rate should not be applied blindly without proper consideration of its appropriateness in the circumstances. The provisions of clause 52.06-1 allow for this.
5. Second, the provision of one car space for each apartment of this type for use by residents accords with the requirement under Standard B16 at clause 55. It is the standard that would be applied if the proposal were for a three storey building. It is difficult to see how building height bears any relationship to parking demand.
6. Third, the provision of one space per apartment accords with the parking rate which is recommended by the Advisory Committee appointed to review clause 52.06[15].
7. Fourth, the provision of one car space per apartment would accord with the rate required for residents under the Council's local policy, at Clause 22.10-3.10.
8. Fifth, relatively small dwellings are proposed and excellent public transport facilities are within easy walking distance. Taxis, another form of public transport, are a more viable "cost" option given the site's proximity to major activity centres and the CBD. Given this context there is a likelihood that at the occupants of some apartments will choose not to have a car.
9. Dedicated visitor parking is not provided. From time to time, demand for kerbside spaces in the area will be high. However, the evidence demonstrates that a reasonable, albeit not overly abundant, supply of kerbside spaces is available to meet visitor demand generated by this proposal. Visitor demand, estimated to be between 3-5 spaces, is relatively small and can be accommodated in the area.
10. We also support the council's policy position that the provision of adequate rather than abundant car parking would work toward reducing traffic and associated congestion as well as encouraging the use of more sustainable transport modes.
11. Car parking layouts which incorporate mechanical car stacker units are now commonplace. While still aptly described as a "new technology", stacker units provide a viable option. They are not so inconvenient that they would not be used. Rather, they are always available for resident use (no matter what the demand for kerbside spaces is) and cars would be parked in a safe environment that provides protection from weather.
12. Overall the car parking to be provided is satisfactory.

1. A number of residents contend that the proposal would result in unsatisfactory traffic impacts. There is concern about the extra traffic that would be generated. There is also concern about the access arrangements into the site from Glass Street. This is because Glass Street is narrow, there is lawful kerbside parking opposite the access point into the on-site car park and its proximity to the intersection of Glass Street with Newry Street.
2. Mr Kiriakidis analysed the traffic impacts. Based on data that is often applied to developments like this[16], Mr Kiriakidis estimates that the proposed use of the land would generate about 120 vehicle movements per day, with ten per cent of these (twelve movements) occurring within both the morning and afternoon peak periods. In the overall scheme of things, the amount of traffic generated by this proposal is low.
3. Based on surveys conducted by Mr Kiriakidis' firm, Glass Street accommodates about 110 vehicle trips per day. With the proposal, this would rise to about 230. The number of vehicle trips in Glass Street would double, but in overall terms, 230 vehicle trips is low. They can be accommodated in this street which allows for two way movements akin to an "Access Lane" as described in clause 56 of the planning scheme.
4. Newry Street would accommodate some, but not all of this traffic. Newry Street is a relatively wide street. It is akin to an "Access Street -Level 1" under clause 56 with a design capacity of about 1000-2000 vehicle trips. Based on Mr Kiriakidis' surveys Newry Street carries about 1415 vehicles. Only some vehicle trips to and from the site would be from Newry Street given that access can also be obtained from the northern end of Glass Street. But even if all traffic accessed the site from Newry Street, it is clear that there is capacity for this to be accommodated.
5. We accept that Glass Street is narrow. With vehicles parking on the west side near the site, the carriageway is narrowed to about 3-3.5 metres. However, given the low volumes and the nature of traffic in this area, we do not accept that there would be difficulties with the operation of the intersection nor would access into and out of the site be unacceptable. The entry point into the car parking area is wide. Given the low volumes, this width will be available to drivers for manoeuvres. Even if there is a situation where opposing vehicles seek to enter and leave the site at the same time, the low speed environment together with an expectation that drivers will behave in a reasonable way, should not result in difficulties on the few occasions when it may occur.
6. We note Mr Kiriakidis' recommendation that part of the wall to the south of the access point into the car park should be designed to provide a degree of transparency. This is to ensure that drivers leaving the site can observe approaching vehicles. This is a minor change that can be implemented by permit condition.
7. Subject to this change, we find the traffic impacts acceptable.
8. Mr Johnsen also contends that the building should be setback off Glass Street to provide for the continuation of the pedestrian footpath. The existing building is set to the site's Glass Street frontage. No footpath is provided. The pedestrian entry points into this building are from Newry Street and within the basement. From the above analysis it is clear that the building does not need to be setback off Glass Street for vehicle access or pedestrian use. A footpath is not required to service this development. Accordingly, if a footpath is provided, its purpose would be to provide for a wider public good. No part of the land has been reserved for this, nor has the Council indicated that it would be prepared to compensate the owner for requiring part of the site to be set aside for a public footpath. If part of the site is to be set aside for a footpath, then the owner should be compensated for this.

Will there be unreasonable overlooking of the neighbouring residential properties?

1. Mr Johnsen submits that the proposal will result in unreasonable potential for overlooking.
2. The proposal incorporates screening to mitigate the potential for overlooking to the north and east. The Council has included condition 1(b) which requires west facing windows and balconies to be screened in accordance with the design guidelines set out in the policy at clause 22.10-3.8. The permit applicant has not sought the review of this requirement.
3. Mr Johnsen submits that the provision of screening to a height 1.7 metres as required under the policy would not provide a satisfactory barrier to prevent overlooking. We do not agree. The height of 1.7 metres reflects the relevant standard in the policy and in other provisions such as clauses 54 and 55 of the planning scheme. Given that potentially sensitive windows and open space areas to the west are located across Glass Street, condition 1(b) as proposed by the Council is appropriate.

Will there be excessive overshadowing of neighbouring properties?

1. Residents raise concerns about the shadow impacts to the west and east.
2. The requirement that would typically apply in the consideration of shadow impacts are set out in Standard B21 at clause 55[17].The standard requires shadow impacts between the hours of 9.00am and 3.00pm at the equinox to the assessed.
3. Shadow diagrams were tabled by Mr Trickey. In summary the shadow diagrams show:
   • There would be minimal shadow impacts on properties to the west from 10.00am onwards.
   • Shadows cast to the south would not intrude on residential properties on the opposite side of Newry Street.
   • The property at 46 Edinburgh Street would be subject to relatively minor shadow impacts.
   • There would be additional shadows over the properties at 48-52 Edinburgh Street between 1.00pm and 2.00pm. The extent of shadow beyond 2.00pm would increase.
4. We agree with the Council's assessment and that of Mr Trickey that for the most part, the shadow impacts meet the relevant standard. The extent to which the standard is not met, between 1.00pm and 2.00pm over the properties at 48-52 Edinburgh Street, is minor and therefore not unacceptable.

1. Resident objectors contend that the proposal would result in unreasonable noise impacts from plant equipment such as air conditioning and operation of the car stackers units as well as from people activity.
2. Air conditioning units and car stacker units would need to operate within the limits set down for this type of mechanical equipment. The council proposes a condition that air conditioner be baffled or otherwise sound treated. We have no basis to conclude that mechanical car stackers within the building would cause excessive noise. From our experience, we doubt that their operation would be audible from neighbouring properties.
3. From time to time "people activity" results in noise that can be heard by neighbours. This happens in all urban environments. Such activities are not allowed to occur in an unfettered way. Residents are required to behave in a reasonable way so as to not cause nuisance. We have no reason to conclude that the residents of the proposed dwellings would be more likely to cause disturbance than other residents.
4. There is nothing about this particular development that would lead us to the conclusion that the noise impacts would be unacceptable within a residential setting.

Will the proposed development impeded views to the spire of St Ignatius' church?

1. Mr Johnsen submits that the building would impede views towards the spire of St Ignatius church. He argues that this would be against the direction given by policy which seeks to protect views towards landmarks like the spire.
2. The policy at clause 15.01-2 seeks to protect landmarks, views and vistas. St Ignatius' spire is identified in the MSS and local policy at 22.03 as a landmark to be protected. We agree with the Council that it is not the intent of the policy to preserve and protect every possible view of the spire from public places. Rather the policy states that new buildings within the vicinity of landmarks like the spire should be designed to ensure that the landmark remains the principal built reference.
3. The subject site is about 600 metres from the site. The proposed development is therefore not in the vicinity of the spire. It is well away from the spire and will not intrude on its ability to be read as a landmark. Further, we are unable to conclude that the proposed building would impede important views or vistas toward the spire.

1. The plans show that provision has been made within the ground level of the building for the storage of bins. Bins stored in this location will not be readily visible outside the site. Condition 10 on the NOD sets the hours during which refuse and recyclable materials are to be taken from the land. The condition says that this can be undertaken as part of the normal Council collection or by private contractor. This is acceptable, although we agree with Mr Barber that a waste management plan should be prepared and implemented to the satisfaction of the Council. The plan should indicate how the bins are to be transported to and from the storage area, who is responsible for this, and the amount of time that they are allowed to be kept on public footpaths if this is considered acceptable to the Council. Condition 10 can be modified to require this.
2. In relation to infrastructure, all the required services are available to the site. The proposal has been assessed by Council's engineers. No concerns have been raised. We are unable to conclude that the infrastructure would not be able to accommodate the demand generated by this proposal.
3. There are no specific ESD requirements set out in the planning scheme for this proposal. The design is at the town planning stage. More detailed design and specification will be provided once the proposal is approved. At that stage details such as the provision of solar hot water, energy efficient lighting, etc. would be specified. As part of the Building Approval process, it will be necessary for the applicant to demonstrate that dwellings achieve appropriate energy ratings.
4. The proposed dwellings would provide a good standard of amenity. They provide for functional internal layouts, private open space that is accessible form a living area, safe and secure parking, satisfactory sense of address and entry from Newry Street and appropriate on site facilities such a bicycle parking, storage areas, mail boxes and lift access are to be provided.
5. The number of objections demonstrates the degree of opposition to the proposal, but it does not follow that a proposal should be refused because of the number of objections. A proposal can only be refused if, on the merits, it is unacceptable.

1. The site presents a good opportunity for redevelopment. The redevelopment of the land for apartments is appropriate given its attributes and context. Policy and the zone purpose support its redevelopment for this purpose. The overall height and form of the building is acceptable in the neighbourhood context. The impact on the amenity of neighbours would not be unreasonable. The impacts of the uppermost level are satisfactory. The proposal is not an overdevelopment.
2. We will vary the council's decision. A permit is granted. We will modify conditions to reflect the decision we have come to with respect to the four storey height and presentation of the building to the streetscapes being acceptable. The requirement that the uppermost floor be deleted is removed from condition 1. We consider that only the top level of the building should be clad with materials of lighter shade. This will emphasize its recessive nature.
3. We have also taken into account the evidence and submissions of the parties with respect to other matters. We will include a requirement that implements Mr Kiriakidis' recommendations with respect to modifications to the wall near the car park entry and southwest corner to provide satisfactory sightlines. It is appropriate that the conditions specify that one storage area be allocated to each dwelling. These are new requirements to condition 1. We have made minor amendments to parts (a), (c) and (g) of condition 1 as discussed with the parties.
4. Condition 7 is amended to make clear that one car parking space is to be allocated to each dwelling. We have also amended condition 10 so that it requires a waste management plan to the council's satisfaction.

[2] It was common ground that the current office use operates under existing use rights.

[3] The Design and Development Overlay - schedule 5 provisions relate to the need for this proposal to be referred to the various authorities which have not objected.

[8] [2009] VCAT 2573

[9] Following Amendment V75, the policy provisions for Strategic Redevelopment sites are now found at clause 16.01-3.

[10] [2009] VCAT 1722

[12] Even if the uppermost level is removed in accordance with condition 1(p) the site would accommodate 19 dwellings.

[13] The endorsed plans show the first floor level setback 530mm from the frontage. We regard this as a minimal setback.

[14] [2004] VCAT 46

[15] The Review of Parking Provisions in the Victoria Planning Provisions Advisory Committee - Report August 2007

[16] Roads and Traffic Authority of New South Wales (RTANSW) 'Guide to Traffic Generating Developments'

[17] The Design Guidelines for Higher Density Residential Development which applies in this case refers to the application of this standard.