1. The decision of the Responsible Authority is set aside.
2. In permit application 0606/14 a permit is granted and directed to be issued for the land at 11 Summers Street, Prahran in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • Construction of two or more dwellings on a lot
   • Reduction of the standard car parking requirement

• Marco Negri (town planner) of Contour Consultants
• Peter Wills (traffic engineer) of GTA Consultants

As none of the parties sought to cross examine Mr Wills, he was not called to give oral evidence.

Gareth Gale, Town Planner of Stonnington City Council.

James Livingston, Town Planner of James Livingston Planning appeared on behalf of Leigh Mackay, Owners Corporation PS307753N, Frank & Gail Vandermeer, Peter Aldred and Christopher & Barbara Davie.

Construction of five double storey dwellings above a basement car park.

Application under Section 79 of the Planning and Environment Act 1987 - to review the failure to grant a permit within the prescribed time[1].

Clause 32.08-4 to construct two or more dwellings on a lot on land within the General Residential Zone.

Clause 52.06-3 to reduce the standard car parking requirement.

Clauses 9, 10, 11, 15, 16, 21, 32.08, 52.06, 55 and 65.

The land is an almost rectangular allotment of some 603 square metres, with a frontage to Summers Street of 11.14 metres, and a depth of between 54.16 and 54.26 metres. The land presently supports a single storey detached dwelling and a garage built to the front boundary.

The Tribunal inspected the site and surrounding area prior to the hearing, on 22 May 2015, and again on 3 June 2015.

1. The Stonnington City Council has failed to grant a permit within the prescribed time, in respect of an application to construct five dwellings on land at 11 Summers Street, Prahran. As a result, Tiber Amber Pty Ltd (the 'Applicant') has lodged an Application for Review to the Tribunal. The proposed five dwellings are all two storey in height, all attached down the length of the site, and all located above a basement car park.
2. The Council has since determined that it opposes the grant of a permit. It does so raising grounds that address the scale and bulk of the proposed development, the impact on landscape character, a range of off-site amenity impacts and matters of internal amenity. The Application for Review is also being contested by a number of nearby residents, who share the concerns raised by Council.
3. The issues or questions for determination are:

1. What is the policy intent for this locale? 2. Is the proposal an appropriate response to the surrounding neighbourhood character?

1. Will the proposal cause any unreasonable off-site amenity impacts?

1. Do the proposed dwellings achieve an appropriate level of internal amenity? 2. Can the proposal appropriately provide for car parking and traffic movements?
2. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Stonnington Planning Scheme, I have decided to set aside the Council's decision, and direct the grant of a planning permit. My reasons follow.

1. State policy establishes a policy tension between achieving urban consolidation on the one hand, and protecting neighbourhood character and residential amenity on the other hand. The balance to be given to these sometimes competing policy objectives in relation to a particular proposal can often be resolved by:
   1. Firstly, considering the level of accessibility that is enjoyed from a particular site to a range of services and facilities, including sustainable forms of transport. This is relevant as while State policy seeks to achieve urban consolidation in all urban areas, those that are accessible to a wide range of services, including the Principal Public Transport Network, receive particular policy support.
   2. Secondly, by guidance from the Local Planning Policy Framework.
2. The review site is located in an area that is rich with services and facilities. It is within a very comfortable walking distance of both the Chapel Street Principal Activity Centre to the west (140 metres as the crow flies), and the Hawksburn large Neighbourhood Activity Centre to the east (110 metres). Trams run along nearby Malvern Road and Chapel Street, and the Hawksburn Railway Station is 400 metres away, though further in walking distance. Public open space, in the form of Princes Gardens and Victoria Gardens, are both within an easy walking distance. This is therefore a site where State policy strongly encourages the achievement of urban consolidation, having regard to the following policy statements:

Encourage a diversity of housing types at higher densities in and around activity centres.[3]

Reduce the cost of living by increasing housing supply near services and public transport.[4]

Increase the supply of housing in existing urban areas by facilitating increased housing yield in appropriate locations, including under-utilised urban land.[5]

Increase the proportion of housing in Metropolitan Melbourne to be developed within the established urban area, particularly at activity centres, employment corridors and at other strategic sites, and reduce the share of new dwellings in greenfield and dispersed development areas.

Encourage higher density housing development on sites that are well located in relation to activity centres, employment corridors and public transport.[6]

Encourage higher land use densities and mixed use developments near railway stations, major bus terminals, transport interchanges, tramways and principal bus routes. Pedestrian and cyclists access to public transport should be facilitated and safeguarded.[7]

1. Mr Gale sought to downplay the proximity of the site to surrounding services and facilities, noting that much of Stonnington's residential areas are within 400 metres of some form of public transport. While that may be the case, I would think that very few of Stonnington's residential areas are within a stone's throw of a Principal Activity Centre, a large Neighbourhood Activity Centre, and a tram line, or enjoy the range of services and facilities that are within walking distance of the review site. The locational attributes of this site bring into focus the State policies I have identified above, and it is my task to implement them alongside guidance from the Local Planning Policy Framework, which I turn to next.
2. Clause 21.05 of the Stonnington Planning Scheme identifies the review site as being within an Incremental Change Area. As such, the following policy guidance applies:

Medium density development is accepted in the remaining residential hinterland, consistent with retaining the low rise character and high levels of amenity of the City's residential precincts.[8]

In the remaining residential areas (outside the Heritage Overlay and Neighbourhood Character Overlay), direct multi-unit development (2-3 storeys) to lots capable of accommodating increased density.[9]

In established residential areas (incremental change and minimal change areas), encourage use, development and subdivision that provides for residential infill development consistent with maintaining a balance of dwelling types in the area.[10]

1. These policy statements start by encouraging medium density development consistent with the surrounding low rise character. This is a neighbourhood that has already been developed with a relatively intense form of housing, albeit of low rise, befitting the inner urban environment which prevails in this neighbourhood. Of note is the adjoining property to the east, which has been developed with six attached double storey dwellings, in a built form that is similar to that proposed for the review site, albeit with a more generous range of side setbacks as a result of its wider site dimensions. The existing form of development already found in the surrounding neighbourhood supports the level of development proposed for the review site.
2. The application of policy at a local level has occurred hand in hand with the application of the new residential zones. The General Residential Zone (GRZ) has been applied to the site and surrounding properties. This is a zone that has, as one of its purposes:

To provide a diversity of housing types and moderate housing growth in locations offering good access to services and transport.

1. I find that this proposal is consistent with this purpose of the GRZ, given the modest scale of the development, at two storeys in height, and the exceptionally good access to services and transport that is available in this neighbourhood. This development constitutes moderate housing growth, having regard to the scale of housing growth that is encouraged in the nearby activity centres and other substantial change areas.
2. The land falls within Schedule 12 to the GRZ. This Schedule applies to the inner urban precincts, and is used to provide for a varied site coverage standard by basements of 75%, and a nine metre height limit. The proposed development comfortably sits under this height limit. The Schedule provides two decision guidelines:
   • Whether the development provides for an appropriate visual transition to residential properties in the Neighbourhood Residential Zone.
   • Whether the proposal meets the preferred neighbourhood character statement and design objectives for the Precinct.
3. The first of these decision guidelines is not relevant as the site does not sit at the interface to land in a Neighbourhood Residential Zone. Instead land to the north is in a Mixed Use Zone, which may only increase the development potential of the rear portion of the review site. The second decision guideline is relevant, and it shapes my neighbourhood character analysis below.
4. Having regard to the policy guidance at both a State and local level, this is a neighbourhood that gains significant policy support for the establishment of medium density housing. The proposed development, which is two storeys in scale, is an appropriate response to this policy encouragement. For these reasons I find that the proposed form of development enjoys a high level of policy support.

IS THE PROPOSAL AN APPROPRIATE RESPONSE TO THE SURROUNDING NEIGHBOURHOOD CHARACTER?

1. Local policy provides the following guidance for a neighbourhood character assessment of this proposal:

The landscaped character of the City is retained, repaired and enhanced and canopy trees are a prevailing part of the City's environment.

New built form is well-designed and respects the valued, traditional built form character elements of its host precinct.[11]

Avoid extensive site coverage in medium and higher density developments so as to provide canopy landscaping, having regard to the existing or preferred character of the area.[12]

Encourage use and development that respects the preferred character elements of the street or any defined precinct character, and that respects and enhances Stonnington's green and garden-like setting (as appropriate), including in areas where this character has been eroded.

Encourage new development and subdivision to respect the existing subdivision grain and rhythm of the built form character.

Ensure that new development avoids full or excessive site coverage (including basements) so as to provide adequate space for in-ground landscaping and visual breaks between buildings.

Encourage front, side and rear setbacks of buildings to respect the existing character or preferred future character (as applicable).

Encourage good design which respects the scale, height, density, bulk, setbacks, style, form, building materials, colours and character of buildings, fences and gardens of the street or any defined character precinct.[13]

1. The Stonnington Planning Scheme does not currently contain a Neighbourhood Character Policy. Therefore the policy references and the decision guideline of the GRZ that point to the preferred future character and the character precincts currently have no meaning. The Council is pursuing Amendment C175 to the Stonnington Planning Scheme, which will introduce a new Neighbourhood Character Policy. The Amendment is seriously entertained, given it has been exhibited, been the subject of a Panel Hearing and Panel Report, and has been adopted in its final form by Council and sent to the Minister for Planning for gazettal. I am also informed by Mr Gale that the form of the Amendment which was supported by the Panel is consistent with the form with which it has been adopted by Council and forwarded to the Minister. Given the advanced nature of this Amendment, and the way that the current policy framework and decision guideline of the GRZ anticipates its content, I will give the amendment significant weight.
2. The review site falls within an Inner Urban Area. This area is provided with the following preferred character statement under the proposed Neighbourhood Character Policy forming part of Amendment C175:

The Inner Urban (IU) character precinct is defined by buildings of innovative and high quality architectural styles that sit comfortably within compact streetscapes of Victorian, Edwardian and Interwar dwellings. Consistent front setbacks reinforce the building edge along the streets, and building heights and forms complement, rather than dominate, the rhythm of development. Well designed gardens for small spaces contribute to the softening of the streetscape. Low or permeable front fences provide views of building facades and front gardens. Where present, car parking structures are located at the rear of buildings with access from rear lanes to provide continuous, uninterrupted footpaths for pedestrian friendly streets.[14]

1. The parties that oppose the grant of a permit conceded that most aspects of the proposed development are consistent with the character of the surrounding neighbourhood. In particular no concerns were raised in relation to the streetscape appearance of the review site. I confirm from my own analysis that many aspects of the proposed development are respectful of the surrounding neighbourhood character, and consistent with the pattern of surrounding built form. These aspects include the front setback, the two storey form, the presentation of one dwelling addressing and activating the street, the flat roof, and the hidden car accommodation in the basement car park.
2. I also consider that the extent of built form down the length of the site is consistent with the existing and preferred neighbourhood character. While this is a long, narrow site, the development of the site with continuous built form is reflective of the surrounding intensity of built form. In particular it mirrors the length and continuous nature of the development on the adjoining property to the east. Land to the west is also highly developed with built form, with only minimal building breaks provided. For these reasons I support the proposed unbroken two storey form down the length of the site.
3. To the extent that Council raised some concern with the amount of site coverage across the site, I find the extent of built form to be consistent with the character of the surrounding area, and pattern of surrounding development. While the site will have a much higher site coverage than the development to the east, that is not unexpected given the different site dimensions, and the changes in planning policy over the intervening 25 year period, particularly those now advancing more efficient development of urban land in well serviced locations.
4. The parties that oppose the grant of a permit were most concerned, in character terms, with the failure of the proposal to complement the surrounding landscape character. Mr Gale submitted that while the existing landscape character is mixed, that policy seeks to enhance and repair the existing landscape character, and encourage the incorporation of canopy vegetation in new development. Mr Livingston focussed more on the existing landscape character, including the street trees, and the vegetation on his clients' sites to the east and the police station further to the east.
5. The review site is currently the most heavily vegetated in this neighbourhood. The existing dwelling on the review site is located at the very front of this deep site, and the remainder of the site has been planted out with a wide variety of vegetation, including a number of canopy trees. An arboricultural assessment of these trees identified that most have a low retention value, with only one tree rating above low. That is a Weeping Lilly Pilly that has a height of 11 metres, and is given a moderate retention value.
6. It is the Council's submission that a development which better responds both to the landscape character of this neighbourhood, and the policy intent to repair and enhance the canopy cover, will result in this existing Weeping Lilly Pilly being retained. The Council was also critical of the lack of landscaping opportunities created throughout the site as part of the proposed development, with many of the proposed trees located in planter boxes above the basement car park. Finally, some concern was also raised regarding the impact of the proposed development on trees located within the adjoining property to the east. I will address each of these submissions in turn.
7. I am not persuaded that the landscape character of this neighbourhood supports a more intensive landscape outcome on the review site than that currently proposed. The policy intent to support medium density housing in this exceptionally well serviced location means that trees that will impact on housing supply should only be retained where they are exceptional specimens, of high retention value. That is particularly the case in the absence of any overlay in the Stonnington Planning Scheme that would seek to protect and retain existing vegetation on the review site. Having regard to the material presented during the course of the hearing, I am not persuaded that the existing Weeping Lilly Pilly is so significant as to warrant its retention over the encouragement provided for the site to contribute to housing supply via urban consolidation.
8. The review site aside, the most significant landscape feature in this neighbourhood is the street trees, behind which will sit the canopy trees in the nearby police station. Neither of these landscape features are characteristic of how individual residential allotments contribute landscaping as part of the existing neighbourhood character.
9. Most lots in this area have a small front garden, and otherwise are relatively devoid of meaningful landscaping. That is true for the adjoining properties to the west, the properties on the eastern side of York Street, and the properties on the southern side of Summers Street. This last group of properties have their frontages and front gardens facing south towards Clarke Street, and thus present to Summers Street with their high rear fencing and roller doors in the fencing or as part of rear outbuildings. The experience on the southern side of Summers Street is therefore very hard edged, softened by the street trees, but with only the occasional view to the top of some greenery in the rear yards of these properties.
10. I acknowledge the policy intent to repair and enhance the landscape character of the residential areas within this municipality, and that the policy intent to repair landscape is most likely a reference to these types of neighbourhoods where there is a general lack of canopy vegetation. I also acknowledge that given the existing condition of the review site, and by this I refer to the current extent of vegetation, that any development will likely not result in an enhancement of the existing landscape character of this neighbourhood. Those policy intents need to be weighed against the strong policy encouragement at a State and local level for the achievement of urban consolidation in this very well serviced location. It also needs to be weighed against the strong built form character and lack of any meaningful landscape character in this inner urban location.
11. My task is to apply policy as a whole, and to resolve any inconsistencies in policy in favour of net community benefit and sustainable development.[15] I also must have regard to the objective to achieve a reasonable and appropriate development of the site, which might constitute some benefits and some disbenefits. The planning framework in Victoria does not aim to achieve ideal outcomes.
12. Having regard to these tasks, I consider that an appropriate form of development on the review site will be one where the built form is the strongest visual element, set in a modest garden setting with some contribution from smaller canopy trees. Such an outcome will provide a level of landscaping that surpasses that provided on most of the sites in this neighbourhood, while providing a reasonable opportunity for additional housing supply.
13. In response, this proposal seeks to provide a small front garden that will enable the planting of two canopy trees. One of the proposed canopy trees in the front setback will be planted at a height of 4 metres, and will grow to 11 metres in height at maturity. To the rear of the site is a row of Capital Pears planted in deep soil which have a height at maturity of 11 metres. In between the front and side setbacks is a more modest planting regime, consisting of a range of smaller trees and other vegetation to both side boundaries, much of which will be contained in planter boxes above the basement.
14. It is my finding that such an outcome is consistent with the preferred character statement proposed as part of Amendment C175 to the Stonnington Planning Scheme. The guidance from the preferred character statement is relevant as policy at Clause 21.06-2 seeks to:

Avoid extensive site coverage in medium and higher density developments so as to provide canopy landscaping, having regard to the existing or preferred character of the area.

Well designed gardens for small spaces contribute to the softening of the streetscape.

1. The preferred character statement does not seek landscaping softening the appearance of buildings from aspects other than the streetscape, and the reference to small garden spaces identifies well the existing landscape character of this neighbourhood, with which this landscaping response is consistent. While the design objectives refers more generally to garden settings, this must be considered in the context of the small spaces and focus on the streetscape views, that the preferred character statement identifies. The design responses identify a desire to plant canopy trees in the front and rear setbacks only, and the landscaping response for the site achieves a good outcome in these parts of the site. The provision of a more sparse landscaping provision to the side boundaries therefore appears to be consistent with the guidance provided by the statement of preferred neighbourhood character.
2. A related issue to the assessment of landscape character is the likely impact the proposal will have on neighbouring trees. I have had regard to the arboricultural assessments that have already been undertaken, including the part trenching of the boundary adjacent to one of the neighbour's trees. I am also assisted by the submission made by Mr Gale that the condition drafted by Council requiring a tree management plan will enable further work to be undertaken to ensure that the proposed development will not adversely impact the neighbours' trees. For these reasons, I am satisfied that the potential for impact on the neighbouring trees should not be a reason to withhold approval for this proposed development.
3. For these reasons, I find that the proposal development is an appropriate response to the surrounding neighbourhood character, as guided by policy and Amendment C175.

WILL THE PROPOSAL CAUSE ANY UNREASONABLE OFF-SITE AMENITY IMPACTS?

1. The key component of submissions against the grant of a permit focussed on the extent of off-site amenity impacts that would be caused to the dwellings at 15 Summers Street. Mr Livingston represents a number of the owners of these six dwellings. His submissions, along with those of Council, focusses on the visual bulk impacts, along with the overshadowing of secluded open space, that will occur to his clients' land.
2. The six dwellings at 15 Summers Street form a row of two storey attached terrace-like homes. Bedrooms are located at the first floor of each dwelling,[16] and a single large open plan living area is found on each ground floor. In five of the six dwellings this large open plan living area is orientated towards the review site. The areas of private open space to each of these five dwellings are located between the dwellings and the common boundary with the review site. The exception to this arrangement is the dwelling at the front of the review site, which has a garage along the common boundary with the review site, and its living areas orientated towards the street and its private open space located within the front setback.
3. Off-site amenity impacts are generally measured in terms of visual bulk, overlooking and overshadowing. In this proceeding, concerns were also raised that the proposed works would damage the roots of trees located within the private open space areas of the units at 15 Summers Street, a concern I have already addressed above.
4. I turn first to an assessment of visual bulk, starting at the interface to 15 Summers Street. The proposal for the review site is a relatively low scale two storey building, comprising wall heights of between 5.97 and 6.68 metres. A variety of setbacks are employed, with Standard B17[17] being achieved in respect of all parts of the proposed building along this eastern interface. Setbacks to the first floor from the eastern boundary of the site vary between 1.73 and 2.85 metres.
5. The interface that will be created will be a long two storey building on the review site being visible from the open space and internal living areas of a group of units forming its own long two storey building. The prospect of viewing buildings of two storey in scale is hardly a foreign site condition in this intimate inner urban environment, and must be an expected outcome in development adjacent to existing two storey buildings. The key difference between the development at 15 Summers Street and that now proposed for the review site is the range of side setbacks, which are far more generous at 15 Summers Street. Partly that is a response to the very different widths of the two sites. Partly however it is also a response to the growing policy support for urban consolidation in well serviced locations, since the development at 15 Summers Street was approved some 25 years ago. In any case, the range of side setbacks that are proposed along the eastern boundary of the review site comply with the relevant standard, and I must regard this as going some way to achieving an appropriate built form outcome for the review site.
6. Mr Gale was critical of the length of the built form, and brought to my attention previous Tribunal decisions where it was acknowledged that Standard B17 does not deal with building length, which is a relevant factor in assessing built form impacts, particularly in this proceeding. I accept those submissions, and agree with the general proposition that compliance with Standard B17, and for that matter the other quantitative standards at Clause 55 of the Stonnington Planning Scheme, will not always bring about an appropriate built form outcome for any given site. However in this case we have a context where the proposed long built form will be viewed from a development that itself presents a long unbroken form, in a neighbourhood where development of this scale and length is characteristic. In this context, I find that compliance with Standard B17 coupled with the maintenance of a relatively low scale two storey form, achieves an appropriate built form outcome for the review site.
7. The views from the areas of secluded private open space at 15 Summers Street will be to a long two storey form, albeit with good levels of articulation. Having regard to the setbacks involved, and the overall height of the proposed development I find that the level of visibility of the proposed built form will not be unreasonable in this inner urban environment.
8. I do however have one concern that can be rectified by way of a condition. During the course of the hearing I observed how the different shading employed to the side elevations indicated different render colors being used on the external walls, though only one render color was noted on plan PD09. I consider that this development could benefit from a greater variety in colors and materials, particularly having regard to the proposed use of only one render color. I will require this by way of a condition.
9. Turning to the western boundary, the interface to the dwelling at 9 Summers Street will constitute a relatively low two storey scale, with the ground floor set below natural ground level. A range of setbacks will be employed, all of which comply with Standard B17, with a larger setback provided for the secluded private open space of the proposed unit 4. The property at 9 Summers Street has an area of private open space locted mid depth on the block, which runs from the east to west boundary. Much of this open space is roofed in a covered patio type arrangement, with a large habitable outbuilding (possibly a dependent relatives unit) at the rear of the site. I am satisfied that the outlook from the area of secluded private open space, and the dwelling itself, will not introduce unreasonable levels of scale and bulk as a result of the proposed development of the review site. In reaching this finding I again rely on the relatively low wall heights, the level of articulation in the setbacks and overall design, the compliance with Standard B17, and the intensity of development that is commonplace in this neighbourhood.
10. Abutting the north-western corner of the site is land at 376-384 Malvern Road, which is developed with a three storey apartment building. Plans for the development were provided by Council, and this shows that the ground and first floor apartments located adjacent to the rear of the review site are orientated away from the review site, with areas of secluded private open space on the western side of that development. The proposed development for the review site proposes setbacks from the rear boundary which comply with B17, but a first floor setback from the rear part of the western boundary which does not comply.
11. On my second site inspection I gained access to the rear of the review site and observed how the adjacent apartment building was developed. This apartment building has a minimal outlook towards the review site, with a ground floor window having an outlook directly to the boundary fence, which is very high with trellis above on this part of the boundary, and a single window at first floor being screened to restrict overlooking. The space at ground level does not appear to be used at all for any meaningful purpose, other than the siting of a hot water service. In this context I find the proposed range of setbacks to be a reasonable and appropriate contextual response, one that will have minimal if any amenity impact on the occupants of the adjacent apartment building.
12. The parties to this proceeding did not allege that any unreasonable levels of overlooking will occur, and I concur that appropriate screening is used where appropriate.
13. Mr Livingston's clients and the Council all raised concern with the extent of overshadowing that will be caused to the areas of secluded private open space at 9 and 15 Summers Street. Turning first to 9 Summers Street, I have already observed how much of its secluded private open space is roofed. The small part which is unroofed is located adjacent to the western boundary of the review site, and this area will be subject to shadows from the proposed development at 9.00am and 10.00am at the equinox. Due to the large part of this rear yard that is already roofed, the imposition of any additional shadows means non-compliance with the relevant standard.[18] I therefore need to turn my mind to the objective, which is:

To ensure buildings do not significantly overshadow existing secluded private open space.

1. I do not regard the small areas of shadows added by this development to the private open space at 9 Summers Street at 9.00am and 10.00am at the equinox to constitute significant overshadowing. I make this finding having regard to the extent of overshadowing that generally occurs to areas of secluded private open space in such intimately developed inner urban environments. I have also had regard to the manner in which the area at 9 Summers Street is currently largely roofed, and so the ability that the occupants of this property have to make some subtle changes which will markedly improve their own solar access.
2. I now turn to shadowing impact on the secluded private open space of the five affected units at 15 Summers Street. These spaces are all about 3.7 metres wide, and are located immediately adjacent to the eastern boundary of the review site. These spaces currently experience shadow from their own building between 9.00am and 10.30am at the equinox. By 11.00am not quite half of these areas receive solar access, and good levels of solar access continue for the remainder of the day at the equinox, until the shadowing from the boundary fence starts to have a significant impact around 3.00pm. The proposed development will cause minor amounts of additional shadowing at around 1.00pm and 2.00pm, and completely overshadow the areas of secluded private open space at 3.00pm.
3. Again due to the increase in shadows and the current level of solar access to these spaces, the standard is not achieved, and so I must consider the objective. There is no doubt that these areas of secluded private open space will experience additional overshadowing over the current conditions. However the current extent of solar access enjoyed by these spaces benefit greatly by the largely undeveloped nature of the review site, with its small dwelling located at the very front of the site, and open, vacant middle and rear portions of the site. This current context is very unusual, and it has benefited the solar access to these adjacent areas of secluded private open space for the past 20 years or so. It is unreasonable in my view for the residents of these adjacent dwellings to now expect a development of this mostly vacant allotment to not increase the existing shadow impacts. Such an expectation would have the effect of sterilising the future development of vacant portions of land in this inner urban and well serviced environment.
4. The proposed development will not significantly overshadow the existing secluded private open space at 15 Summers Street. That is clear from the shadow diagrams, which shows no shadow impact before 1.00pm at the equinox, and no significant shadow impact until after 2.00pm. Given the relevant times for my consideration are between 9.00am and 3.00pm at the equinox, the impact of one hour of significant shadowing during these times does not constitute a significant shadow impact overall. Further, when I consider the overall ability for these spaces to receive solar access, they will receive good levels of sunlight between 11.00am and 2.00pm at the equinox. This I find to be a good outcome in this intimate inner urban environment. For these reasons I find that the proposed development will not significantly overshadow existing secluded private open space, and so the relevant objective is achieved.
5. It was not alleged, but I also confirm from my own analysis that there are no north facing windows adjacent to the review site, and the proposed development will still allow the provision of adequate daylight into the windows of surrounding dwellings.
6. For these reasons I find that the proposed development will not result in any unreasonable off-site amenity impacts.

DO THE PROPOSED DWELLINGS ACHIEVE AN APPROPRIATE LEVEL OF INTERNAL AMENITY?

1. The Council raised two internal amenity concerns in relation to the proposed dwellings. The first relates to the ability for the areas of private open space to receive solar access, and their alleged non-compliance with Standard B29.[19] The Council submitted that the walls to the north of the terraces to units 2 & 3 and the ground floor spaces to units 4 & 5 meant that this standard is not achieved, and that the shadow diagrams indicated that these spaces would receive a low level of solar access. The Council had no concern with the balcony provided for unit 1, as they support such balconies overlooking the street, even if it means, as in this case, that the balcony is south facing.
2. The only standard addressing solar access to proposed areas of secluded private open space is Standard B29, and this does not require an assessment of shadow diagrams. In this case Standard B29 has only limited application, as each of the areas of secluded private open space to units 2-5 inclusive have a wall to the north of only part of their areas. The balconies to units 2 & 3 project in part out from the building, and so in part are open to the north and completely to the west. These areas will receive good solar access in the afternoon of each day.
3. The ground level area to unit 4 has a wall to just over half of its northern boundary. Due to the location of the habitable outbuilding at 9 Summers Street, this area will experience a higher level of overshadowing than the other spaces, however I am satisfied that an acceptable level of solar access will be enjoyed. I make this finding noting that in a development of this kind, not every dwelling will be able to enjoy the same level of solar access. While that is true of an apartment style building where inevitably some apartments will face south, so it is true of a townhouse style development in an intimate inner urban environment such as this. The ground level area to unit 5 will receive good solar access, with again the wall to the north in the adjacent apartment building being aligned with around half of its area of private open space.
4. The other concern raised by Council is the limited outlook to be enjoyed by units 2 & 3. These units have living areas on the first floor, with every window to be completely screened, as well as the balcony. In particular the Council criticised the method of screening to be employed to the balconies, which significantly limits any outlook. A reverse living arrangement can bring benefits, including the potential for increased daylight to windows, and increased solar access to balcony areas over the equivalent spaces at ground level. In considering the limited outlook that will occur, one must balance this against the benefits from the positioning of living areas at first floor. I also note that units 2 & 3 have balconies that are wider than the minimum requirement, at 2.7 metres wide. The provision of unscreened windows to these balconies, combined with the depth of these balconies, will allow a good outlook from the main living areas for each of these dwellings.
5. In relation to the concern regarding the type of screening to the balconies, I agree these are unnecessarily restrictive, and consider they should be changed to a louvre type screen employed elsewhere in this design. Such a change will allow an improved access to an outlook over the roof of the adjacent dwelling at 9 Summers Street.
6. Having regard to other aspects of the design not raised by the parties, I am satisfied that a good level of internal amenity will be achieved in the proposed development.

CAN THE PROPOSAL APPROPRIATELY PROVIDE FOR CAR PARKING AND TRAFFIC MOVEMENTS?

1. Neither the Council nor the residents opposed any element of the car parking provision or design for the review site. Further, as no-one sought to cross examine Mr Will's evidence on car parking and traffic matters, I must give his evidence in this proceeding significant weight.
2. The application seeks a waiver of the one visitor car parking space required for a development of five dwellings. Having regard to the excellent level of access to public transport, the empirical evidence provided by Mr Wills, and the parking surveys carried out by his firm, I am satisfied that it is appropriate to waive the requirement for a visitor car parking space in this instance.

1. At this point in time in our city's history, we are facing more than ever a housing conundrum. It is a conundrum whereby our city needs more housing, in established and well serviced locations, of a more diverse range of formats, to serve the various needs of our ever growing community. It is ironic that at the same time as our city is being lauded as one of the worlds most liveable, that so many people are being shut out of the housing market, and there is a growing spatial divide between those that can afford to live in well serviced locations near jobs, and those that can't. Some have called it a housing crisis.[20]
2. Of course this proposed development won't go near to solving the conundrum I have described above. It only contains five dwellings, which is but a drop in the ocean, of the estimated 43,000 new dwellings[21] required every year between now and 2051. However it is small developments such as this which truly provides the housing diversity required between the large apartment buildings in the CBD or inner urban areas, and the quarter acre block in the leafy middle ring suburbs.
3. This site is ideally located to assist to meet our housing conundrum, given the level of access to services and facilities I have already described. It is within walking distance of both a Principal and a large Neighbourhood Activity Centre, two tram routes running east-west and north-south, and a railway station.
4. Into this context the Applicant seeks to construct five two storey attached townhouses, adjacent to a site that already contains six two storey attached townhouses, albeit on a much wider allotment. As a community we need to grasp that such developments are inevitable, indeed necessary, for our community to just begin to resolve the housing conundrum we face, at this important time in our city's history. The recent application of the new residential zones in a manner that has cut out much of the inner and middle ring suburbs from this level of development has only increased the need for land such as this to play its intended role.
5. This development will bring with it some disbenefits, particularly in terms of amenity impacts to the adjoining neighbours. For the reasons I have set out above I am satisfied that the surrounding properties will continue to be afforded a good level of amenity, despite the impact of the proposed development. Some of that amenity is provided by the inner urban location rich with services and facilities, and a high level of accessibility. As a result I find that a net community benefit is achieved.
6. For the reasons explained above, the decision of the Responsible Authority is set aside. A permit is issued subject to conditions.

• Construction of two or more dwellings on a lot
• Reduction of the standard car parking requirement

1. Before the development starts, three (3) copies of amended plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the VCAT amended plans prepared by Drew Cole Architects (Job Number: 1314, Drawing No. PD01A - PD22A, dated 17 April 2015) but modified to show:

1. The provision of a more varied palette of materials and colors, particularly to the proposed east and west elevations. 2. The provision of lourve screens to the balconies to units 2 & 3 of a manner that will restrict overlooking to the adjacent property at 9 Summers Street, in lieu of the current timber batten screen.

1. Any change as required by the Landscape Plan in accordance with condition 3.

1. Any change as required by the Tree Management Plan in accordance with condition 5. 2. Any change as required by the Water Sensitive Urban Design Response in accordance with condition 6. 3. Any changes as required by the Waste Management Plan in accordance with condition 8. 4. Any changes as required by the Sustainable Design Assessment Report in accordance with condition 9.

all to the satisfaction of the Responsible Authority.

1. The development must be in accordance with the endorsed plans unless otherwise agreed in writing by the Responsible Authority. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason (unless the Stonnington Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.
2. Concurrent with the endorsement of plans, a landscape plan to be prepared by a landscape architect or suitably qualified or experienced landscape designer must be submitted to and approved by the Responsible Authority. When approved, the landscape plan will be endorsed and will then form part of the permit. The landscape plan must be drawn to scale with dimensions and three copies must be provided. The landscape plan must show:

1. A survey (including botanical names) of all existing vegetation to be retained and removed. 2. Details of surface finishes of pathways and walkways.

1. A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, planter box soil volumes, sizes at maturity, and quantities of each plant.

1. Planting of canopy trees within the front setback. 2. Provision of meaningful landscaping along the side and rear boundaries of the subject land.

all to the satisfaction of the Responsible Authority.

1. Before the occupation of the development, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority. Landscaping must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
2. Concurrent with the endorsement of development plans, a tree management plan prepared by a suitably qualified arborist must be submitted to and approved by the Responsible Authority. When approved, the tree management plan will form part of this permit and all works must be done in accordance with the tree management plan. The tree management plan must detail measures to protect and ensure the viability of the trees along the western boundary of 13 - 15 Summers Street, which are marked as Trees No. 1, 6 and 7 in the Arboricultural Assessment Report prepared by Peter Clark, dated July 2014. Without limiting the generality of the tree management plan it must have at least three sections as follows:

1. Pre-construction - details to include a tree protection zone, height barrier around the tree protection zone, amount and type of mulch to be placed above the tree protection zone and method of cutting any roots or branches which extend beyond the tree protection zone. 2. During-construction - details to include watering regime during construction and method of protection of exposed roots.

1. Post-construction - details to include watering regime and time of final inspection when barrier can be removed and protection works and regime can cease.

Pre-construction works and any root cutting must be inspected and approved by the Parks Unit. Removal of protection works and cessation of the tree management plan must be authorised by the Parks Unit.

1. Concurrent with the endorsement of plans, the applicant must provide a Water Sensitive Urban Design Response addressing the Application Requirements of the Stormwater Management (Water Sensitive Urban Design) Policy to the satisfaction of the Responsible Authority.
2. The project must incorporate the Water Sensitive Urban Design initiatives detailed in the endorsed site plan and/or stormwater management report.
3. Concurrent with the endorsement of plans, a Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan must include:

1. Dimensions of waste areas. 2. The number of bins to be provided.

1. Hours of waste and recyclables collection. 2. Method of presentation of bins for waste collection. 3. Strategies for how the generation of waste and recyclables from the development will be minimised.

When approved, the plan will be endorsed and will then form part of the permit. Waste collection from the development must be in accordance with the plan, to the satisfaction of the Responsible Authority.

1. Concurrent with the endorsement of plans, a Sustainable Design Assessment (SDA) Report must be submitted to and approved by the Responsible Authority. Upon approval the SDA will be endorsed as part of the planning permit and the development must incorporate the sustainable design initiatives outlined in the SDA to the satisfaction of the Responsible Authority. The SDA must include:

1. Any requirements of VCAT. 2. Demonstrate how Best Practice measures from each of the 10 key Sustainable Design Categories of Stonnington Council's Sustainable Design Assessment in the Planning Process (SDAPP) have been addressed.

1. Identify relevant statutory obligations, strategic or other documented sustainability targets or performance standards.

1. Document the means by which the appropriate target or performance is to be achieved. 2. Identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring. 3. Demonstrate that the design elements, technologies and operational practices that comprise the SDA can be maintained over time. 4. Demonstrates how the policy objectives of Clause 22.18 are achieved, including details on plans of how each impervious area is treated, and that all toilets and the irrigation system are connected to the water tank.

All works must be undertaken in accordance with the endorsed Sustainable Design Assessment Report to the satisfaction of the Responsible Authority. No alterations to the Sustainable Design Assessment Report may occur without written consent of the Responsible Authority.

1. Prior to the occupation of the development approved under this permit, a report from the author of the Sustainable Design Assessment Report, approved pursuant to this permit, or similarly qualified person or company, must be submitted to the Responsible Authority. The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the Sustainable Design Assessment Report have been implemented in accordance with the approved plan.
2. A report for the legal point of discharge must be obtained from Council prior to a building permit being issued. A drainage design for the development must be prepared by a suitably qualified Engineer in compliance with the above report prior to the commencement of works and the drainage must be completed in accordance with the Engineer's design.
3. The existing levels of the footpaths at the property line must not be lower or altered in any way.
4. Prior to the occupation of the building, fixed privacy screens (not adhesive film) designed to limit overlooking as required by Standard B22 of Clause 55.04-6 in accordance with the endorsed plans must be installed to the satisfaction of the Responsible Authority and maintained to the satisfaction of the Responsible Authority thereafter for the life of the building.
5. Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.
6. All utility services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority by completion of the development.
7. Prior to the occupation of the building, the walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.
8. Prior to occupation of the building, any existing vehicular crossing made redundant by the building and works hereby permitted must be broken out and re-instated as standard footpath and kerb and channel at the permit holders cost to the approval and satisfaction of the Responsible Authority.
9. The crossover must be constructed to Council's Standard Vehicle Crossover Guidelines unless otherwise approved by the Responsible Authority. Separate consent for crossovers is required from Council's Building and Local Law Unit.
10. All plant and equipment (including air-conditioning units) shall be located or screened so as not to be visible from any of the surrounding footpaths and adjoining properties and shall be baffled so as to minimise the emission of unreasonable noise to the environment in accordance with Section 48A of the Environment Protection Act 1970 to the satisfaction of the Responsible Authority.
11. This permit will expire if one of the following circumstances applies:
    1. The development is not started within two years of the issued date of this permit.
    2. The development is not completed within four years of the issued date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

[1] Section 4(2)(d) of the Victorian Civil & Administrative Tribunal Act 1998 states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[2] I have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I do not recite or refer to all of the contents of those documents in these reasons.

[3] Clause 11.01-2 of the Stonnington Planning Scheme.

[14] The preferred character statement also contains additional word providing specific guidance for sites within the Residential Growth Zone, Mixed Use Zone and substantial change areas, which are not relevant to this dispute.

[15] As guided by Clause 10.04 of the Stonnington Planning Scheme.

[16] Although I was shown a current floorplan of one of the dwellings at 15 Summers Street, which showed a garage converted to a bedroom on the ground floor.

[17] As set out at Clause 55.04-1 of the Stonnington Planning Scheme.

[20] Paragraph 13 of NJJJKT Pty Ltd v Whitehorse CC [2008] VCAT 1410

[21] Based on the 1.6 million new dwellings required by 2051 under the forecasts given in Plan Melbourne.