The order of the Tribunal in Application for Review P1972/2003 is that the decision of the Responsible Authority is set aside. A permit is granted for a residential building(boarding house) at 10 Milton Street, Ferntree Gully, generally in accordance with the endorsed plans and subject to the following conditions:-

1. Before the use commences, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:

1.1 Screening devices for the windows of Bedrooms 4 and 5 to reasonably limit views to the open space of 52 The Avenue without unreasonably affecting the outlook from these bedrooms;

1.2 The removal of the metal clad garage and the smaller of the two metal clad stores to provide additional area for car parking, landscaping and open space;

1.3 Landscaping including screen planting along the west and north boundaries toward the rear of the site, and;

1.4 The provision of 4 individually accessible car spaces (i.e. not in tandem arrangement).

2. The use and development as shown on the endorsed plans must not be altered without the written consent of the responsible authority. The maximum number of residents of the permitted boarding house, at any one time, shall be eight.

3. Within six months of the date of issue of this permit, driveways and car parking areas must be fully constructed in accordance with endorsed plans to the satisfaction of the Responsible Authority.

4. Parking areas and driveways must be kept available and maintained for these purposes at all times to the satisfaction of the Responsible Authority.

5. No bins or other receptacles for any form of rubbish shall be placed or allowed to remain in view of the public (with the exception of collection days) and no odour shall be allowed to emit from any receptacles so as to cause offence to persons outside the premises.

6. A copy of this permit shall be displayed at all times in a prominent location within the premises to the satisfaction of the Responsible Authority.

7. Within six months of the date of issue of this permit, landscaping works must be completed in accordance with the endorsed plan and there after maintained to the satisfaction of the Responsible Authority.

9. Within six months of the date of issue of this permit, a Management Plan for the effective operation of the use must be submitted to and approved by the Relevant Authority. Two copies of the Management Plan are to be submitted setting out:

(i) house rules for the purpose of protecting the amenity of residents and neighbours.

(ii) the name and contact details of the person responsible for the day to day management of the premises.

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

(i) The development is not started within six months of the date of this permit.

(ii) The development is not completed within one years of the date of this permit.

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

The order of the Tribunal in Application for Review P1972/2003 is that the decision of the Responsible Authority is set aside. A permit is granted for a residential building(boarding house) at 54 The Avenue, Ferntree Gully, generally in accordance with the endorsed plans and subject to the following conditions:-

1. Before the development commences, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:

1.1 Removal of the driveway and car parking spaces along the common boundary with 8 Milton Street.

1.2 Reconfigure car parking area accessed via Craig Street to provide a minimum of two car parking bays.

1.3 Provision of a minimum of 2 car parking space accessed via Milton Street.

1.4 Landscaping including screen planting adjacent to the boundary of 8 Milton Street

2. The use and development as shown on the endorsed plans must not be altered without the written consent of the responsible authority. The maximum number of residents of the permitted boarding house, at any one time, shall be eight.

3. Within six months of the date of issue of this permit, driveways and car parking areas must be fully constructed in accordance with endorsed plans to the satisfaction of the Responsible Authority.

4. Parking areas and driveways must be kept available and maintained for these purposes at all times to the satisfaction of the Responsible Authority.

5. No bins or other receptacles for any form of rubbish shall be placed or allowed to remain in view of the public (with the exception of collection days) and no odour shall be allowed to emit from any receptacles so as to cause offence to persons outside the premises.

6. A copy of this permit shall be displayed at all times in a prominent location within the premises to the satisfaction of the Responsible Authority.

7. Within six months of the date of issue of this permit, landscaping works must be completed in accordance with the endorsed plan and there after maintained to the satisfaction of the Responsible Authority.

9. Within six months of the date of issue of this permit, a Management Plan for the effective operation of the use must be submitted to and approved by the Relevant Authority. Two copies of the Management Plan are to be submitted setting out:

(i) house rules for the purpose of protecting the amenity of residents and neighbours.

(ii) the name and contact details of the person responsible for the day to day management of the premises.

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

(i) The development is not started within six months of the date of this permit.

(ii) The development is not completed within one years of the date of this permit.

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

The Responsible Authority is directed to issue permits in accordance with these orders under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mr Anthony Southall, QC with Mr David O'Brien, Barrister. Mr Southall and

Mr O'Brien called Mr Graham Harwood, Enforcement Officer, Mr Andrew Cook, Town Planner, and Mr Vincent O'Brien, Building Surveyor, as witnesses in support of their submissions.

Mr Keith Thorne, and Ms Carol Blewitt, on their own behalf.

Mr Nicholas Tweedie. Mr Tweedie called Mr Colin Bowden, Town Planner, as a witness in support of his submission.

1 These applications relate to permit applications to use buildings on two sites in nearby streets in Ferntree Gully for the purpose of boarding houses. Both the use and the buildings already exist, and the permit applications are in a sense seeking to regularise both the use and development aspects of the required permission.

2 The Responsible Authority issued a Notice of Refusal to Grant a Permit for the proposed boarding house at 10 Milton Street for the following reasons:

1. Information has not been provided in accordance with Council's request pursuant to Section 54 of the Planning and Environment Act 1987.

2. The proposed development does not meet the objectives of State and Local Planning Policy.

3. The amenity beyond the site is compromised by the development, through the relative intensity of the use.

4. The development is not respectful of and does not make a positive contribution to the character of the neighbourhood.

5. The use is not provided with sufficient car parking, located in an area easily accessible to it. Appropriate justification has not been provided for a lesser amount of car parking to be provided than that required by Clause 52.06 of the Knox Planning Scheme.

6. The application has not demonstrated the proposed use and development is consistent with the objectives of the Dandenong Foothills Policy.

3 The Responsible Authority issued a Notice of Refusal to Grant a Permit for the proposed boarding house at 54 The Avenue for the following reasons:

1. Information has not been provided in accordance with Council's request pursuant to Section 54 of the Planning and Environment Act 1987.

2. The proposed development does not meet the objectives of State and Local Planning Policy.

3. The development results in unreasonable overlooking to adjoining properties and their secluded private open space areas.

4. The amenity beyond the site is compromised by the development, through the potential for overlooking and the relative intensity of the use.

5. The development is not respectful of and does not make a positive contribution to the character of the neighbourhood, including by its site coverage and lack of contribution to the established tree canopy in the area.

6. The use is not provided with sufficient car parking, located in an area easily accessible to it. Appropriate justification has not been provided for a lesser amount of car parking to be provided than that required by Clause 52.06 of the Knox Planning Scheme.

7. The application has not demonstrated the proposed use and development is consistent with the objectives of the Dandenong Foothills Policy.

4 These applications for review were heard together with a number of enforcement order applications, including applications in respect of 10 Milton Street and 54 The Avenue (P2844/2002, and P2841/2002). The decision in relation to these enforcement orders are dealt with seperately. These review applications and the associated permit applications are a response to the enforcement order applications.

5 The parties and witnesses at the hearing of these applications for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject site and its locality.

6 The following extract from Mr Cooke's submission provides a reasonable concise description of the site, the locality and the proposal:

"I have been requested by the City of Knox to undertake a town planning assessment of two planning applications for the use of existing building at 54 The Avenue and 10 Milton Street, Ferntree Gully as residential buildings (boarding houses).

Both sites are located in a Residential 1 Zone and a Vegetation Protection Overlay (Schedule 3).

In undertaking this assessment I have inspected both sites and the surrounding area. I have reviewed the application documents, objections, Council officer's report and the Notice of Refusal.

I have also reviewed the relevant provisions of the Knox Planning Scheme including state and local planning policies.

Annexure A contains a summary of my expertise to carry out this assessment in accordance with VCAT Practice Note 2 - Expert Evidence.

In summary, I am concerned that, as a result of the manner in which both uses have been established on each site, the buildings have not been designed or constructed to respect relevant planning considerations relating to neighbourhood character, the amenity of adjoining properties, landscaping, open space and carparking.

Accordingly, while I support the land uses proposed on both sites in a general policy sense, the built form, landscape and amenity outcome that will be achieved on each site will not be satisfactory. On this basis I support Council's decision to refuse both applications in their current form."

7 The proposed uses are residential uses in a residential zone, if the proposed uses were conventional dwellings, either as single dwellings or medium density dwellings, then this would be an unremarkable, factor which was unlikely to be of importance in the outcome of the application for review. While the precise characterisation of the use is of very great importance in the enforcement order applications, in common parlance each of the subject buildings are used as boarding houses. This factor has in our view a number of important social and economic ramifications ie.

* In general terms the availability of boarding house type accommodation has been in decline, and has not been a particularly prevalent aspect of housing supply in outer suburban locations such as this, therefore, new boarding houses in this location are an important addition to the diversity of housing types available to the local community;

* Boarding houses in general, and these boarding houses in particular, are an important aspect of what is described as social housing, important in the provision of housing for disadvantaged groups in the community, who would otherwise verge on homelessness.

8 Therefore, it can be argued that these boarding houses contribute to the satisfaction of an important social and economic need in this community, and are therefore strongly supported by the Planning Policy Framework, and that these conclusions are important factors in striking an appropriate balance between competing policy requirements. Mr Bowden in his submission quoted part of Clause 13, Principles Of Land Use And Development Planning, from the Knox Planning Scheme which in general terms set out planning principles to be applied in the application of the scheme, principles which are repeated in more detail throughout the scheme, ie.:

Community needs are to be provided for in respect to housing...while planning is to recognise the need for

Planning is to recognise social needs by providing land for a range of accessible community resources, such as affordable housing, places of employment, open space, and education, cultural, health and community support (mental, aged, disabled, youth and family services) facilities. Land use and development planning must support the development and maintenance of communities with adequate and safe physical and social environments for their residents, through the appropriate location of uses and developments and quality of urban design."

9 Mr Tweedie tabled a number of letters from organisations such as the Salvation Army, Anchor Inc. Community Care, Community Housing Limited, and Wesley Mission Melbourne, dealing expressly with these boarding houses and the need for such accommodation. The following extract from the letter of Community Housing Limited provides an important insight into the need for this type of accommodation in the Knox Region:

"While Tulcany properties has been able to house some of the people we have referred, this by no means comes anywhere near meeting the demand for this type of affordable housing. According to data provided by Department of Human Services, (Regional Homelessness Strategic Plan, 2002), approximately 18,000 individuals are homeless on any given night in Victoria and approximately 13.6 per cent, (2,457), will be located in the Eastern Metropolitan Region. The Eastern Metropolitan Region, which includes Knox LGA, has less than 2% social housing as a proportion of total stock compared, which is half the Victorian and a third of the national average and has no publicly funded boarding houses for single people. Despite this the region has similar levels of homelessness to other regions. The Knox area is extremely under resourced when it comes to affordable housing. We consider the housing offered by Tulcany Properties to be an essential component of safe and affordable housing in this area."

10 Mr Southall opposed the Tribunal placing any weight on these letters because the authors of the letters were not available for cross examination. The Responsible Authority was given leave to make further submissions in relation to the issue of need relied by the applicant, and did so. However, the factual basis of the assertions in the extract set out above were not challenged. The Tribunal accepts Mr Tweedie's submission that while the weight to be attributed to the letters might be low, it is more than negligible.

11 Need is a fundamental concept in town planning, because town planning is essentially concerned with shaping our physical environment to meet the social economic and environmental needs of the community. However in individual development applications the role of need is complex. At one end of the scale, there are ubiquitous land uses in relation to which the Tribunal has said that need is not a matter for the planning system, rather it is a matter for the competitive market place. On the other hand there are important community based uses where the Tribunal has found that the need for the use can outweigh other important, and ordinarily decisive, planning considerations. An often quoted example of this latter case is the helipad at the Alfred Hospital.

12 Nevertheless, there is a middle ground in which need may not be a decisive factor in the case of an individual development application, but will be a factor which influences the balances to be struck between competing planning policy consideration. An example of this is the retirement village permitted by the us in Cotham Road Pty Ltd v Boroondara City Council [2003] VCAT 795, and we think that this is another of these middle ground cases.

13 General characteristics of these middle ground cases are:

* There is an unmet demand for the particular land use;

* The market is often prepared to meet the demand, provided that the obstacles to establishment are not too high;

* There is expressed planning policy support for the particular use type, in the case of a retirement village and boarding houses the housing diversity policies are an example;

* The use proposed is different from the norm, when the norm is defined as the predominant use type, such as conventional family housing in a suburban situation.

* There can be conflicts between planning policies directed towards preserving existing character and amenity and these land uses, for example the intensity of the physical development associated with the retirement villages, or the social implications of a housing type primarily directed at disadvantaged men.

14 A good example of how need can be relevantly applied in the context of these applications relates to the question of anti social behaviour. There has been one quite serious incident at 54 The Avenue, which understandable was of particular concern to the respondents. There was no evidence led comparing anti-social behaviour associated with boarding houses compared with such behaviour in all housing. Nevertheless it is probably reasonable to assume that housing primarily directed towards disadvantaged single men, brings with it a greater than average risk of anti social behaviour by comparison with the surrounding suburban environment. However it would be rare for this to be a relevant factor, notwithstanding the planning policy provisions in relation to the character and amenity of residential environments.

15 There is a need for boarding houses within the community, boarding houses are a residential use, residential areas are the appropriate location for boarding houses, therefore it would be inappropriate to find that boarding house should not be located in a particular residential environment because of the slightly heighten risk of anti social behaviour, when the implication of that decision is that a boarding houses would be generally inappropriate in almost all residential environments.

16 The Tribunal finds that this is the circumstance of these applications. There is nothing peculiar about the location of these boarding houses, which would mean that the risk of anti social behaviour associated with the boarding houses is greater than it would be for a boarding house established elsewhere. It is the Tribunals observation that these boarding houses are well run establishments.

17 An interesting, and ultimately decisive factor in these applications is that both the expert town planners called as witnesses in these review applications, Mr Cook for the Responsible Authority and Mr Bowden for the Permit Applicant, reached broadly similar conclusions. Ultimately it was their expert opinion that the proposed uses were an appropriate use of the subject sites, and that it was appropriate for a permit to be granted, provided that there were conditions requiring:

* Measures to significantly improve the landscaping of both sites;

* The provision of on site car parking at the rate of 0.5 car spaces per bedroom.

18 It was argued on behalf of the Responsible Authority, that the existing buildings as they have been redeveloped are inappropriate from a neighbourhood character perspective, and that on this basis no permit should be granted, or if a permit is granted it should be subject to conditions requiring a substantial modification of the existing buildings. While it is true that the buildings are larger than most neighbouring buildings, they are large but not inordinately large in a suburban context, having floor areas in the order of 300 square metres (or 32 squares).

19 In relation to 54 The Avenue in particular, the topography of the land is such that the newer parts of the building are not unduly intrusive, and subject to some additional landscaping and privacy screening are entirely acceptable from an amenity and neighbourhood character perspective.

20 In relation to no. 10 Milton Street, the extended building is prominent when viewed from Milton Street itself, and this is in part to do with the design of the new building, but primarily a consequence of the topography of the land. Our view is that in accordance with Van Egmont v City of Knox, Bassett and Ors [P84/1570] the permit applicant should neither be punished nor rewarded for undertaking work before a permit was obtained. Our view is that while the present outcome might not be ideal, the outcome that was achieved is not so unacceptable, that one would require anything other than cosmetic alteration of the existing building. In particular we find that the Responsible Authority's proposal to delete one of the larger bedrooms, and a shared bathroom, to be particularly inappropriate when one has regard to the need for accommodation of this type.

21 It is our conclusion that these residential buildings are well run land uses which satisfy an important need evident in this local community. The use of these sites for the purpose of residential buildings will not have an unacceptable impact on the amenity of nearby properties or the area, and the buildings developed to house these proposed land uses are reasonably respectful of neighbourhood character, in both cases subject to some modifications in relation to landscaping, privacy, and car parking.