Clause 58 or 55?

...

Council submits that the proper assessment tool in this matter is Clause 58. The reason for this is the 'parent clause' of the Activity Centre Zone at Clause 37.08-5 requires an apartment development to meet the requirements of Clause 58. The 'parent clause' is the enabling provision within the scheme. It should take precedence over Schedule 1 of the Activity Centre Zone that requires the development of two or more dwellings on a lot to meet the requirements of Clause 55.

The position that Clause 58 (not Clause 55) is the correct assessment tool in this matter is reinforced by the provisions of Clause 58 itself where it is stated that the provisions apply to an application for an apartment development if the apartment development is in the Activity Centre Zone.

...

1. Council would direct the Tribunal to section 7(4) of the Planning and Environment Act 1987(Vic), which states:

If there appears to be an inconsistency between different provisions of a planning scheme -

(a) the scheme must, so far as practicable, be read so as to resolve the inconsistency; and

(b) subject to paragraph (a) -

(i) the State standard provisions prevail over the local provisions;

1. In the current matter there is an inconsistency between the state standard provision of the Activity Centre Zone at Clause 37.08 and a local Schedule (Schedule 1 - Chapel Street Activity Centre). Pursuant to section 7(4) of the Planning and Environment Act 1987, the state standard provision prevails to resolve the inconsistency.

1. Council has reviewed the updated table 19 - dated 10 December 2024. The table clearly shows that under existing conditions there would be unreasonable noise impacts to the proposed dwellings.
2. Council relies on the submissions it made at the hearing on this issue. Those submissions being that - although there may be a breach of planning permit conditions at the venue next door - there is acoustic evidence presented in this case that shows music noise impacts will be significant to the proposed dwellings under current conditions. And policy clearly puts the onus on the 'agent of change' to address this.
3. The applicant provided a detailed response dated 19 January 2025 that concluded:
   1. The delegate report assessment (Section 11) is comprehensive and deals with the issues of internal amenity of each apartment, although the specific identification of each clause number, be it clause 55.07 or 58 does not occur.
   2. This does not translate that the assessment was deficient, as clearly internal amenity for units 101 & 102 was considered which resulted in one of the grounds of refusal.
   3. The question becomes was anything "missed" or is the assessment invalid, given that Clause 58 was not specifically identified within the assessment?
   4. As identified the delegate report clearly assessed the design against the "apartment standards", the omission of references to clause numbering3 does not make the assessment invalid.
4. The party's submissions in summary state that clause 58 is relevant to the assessment of the proposal. The applicant's submission also states that there has not been a deficiency in the Council's assessment of the proposal.

1. Having regard to the relevant provisions I am not persuaded that I would characterise the reference to clause 55 and 58 as being an inconsistency. A preferable characterisation is that both clauses apply. Therefore, I consider an assessment against both clauses should occur. Notably both the applicant's and Council's original and subsequent submissions respectively address the relevant sections of clause 55 and 58 of the Stonnington Planning Scheme. Even if I am wrong, I find that on assessment against each provision with respect to the provision of private open space the proposal to be unacceptable for reasons detailed later in this decision.
2. Having considered the submissions and evidence, all relevant matters and inspected the site and neighbourhood I have decided to affirm Council's decision. My reasons are as follows.
3. In this context the key issues in this matter may be expressed as follows:
   • Is the proposal consistent with the relevant Planning Policy Framework and built form outcome sought for the site pursuant to the Stonnington Planning Scheme?
   • Does the proposal provide an acceptable level of internal amenity?

IS THE PROPOSAL CONSISTENT WITH THE RELEVANT PLANNING POLICY FRAMEWORK AND BUILT FORM OUTCOME SOUGHT FOR THE SITE PURSUANT TO THE STONNINGTON PLANNING SCHEME?

1. It was common ground between the parties that there is support for the proposal with respect to the use and development pursuant to the relevant provisions of the planning scheme.
2. Relevantly Council's delegate report states:
   • The site is located within the Chapel Street Activity Centre, as it is located on the southern side of the activity centre within the Windsor area it is identified as a Large Neighbourhood Centre pursuant to Clause 2.03-1. The role of this area is to facilitate and support a lower rise, urban village that is distinguished by its fine grain heritage buildings and creative, retail, commercial, educational, residential and community uses.[6]
   • The proposed use of the site as shop at ground floor and dwellings above has strong strategic support.[7]
   • At ground floor the proposed use of the site as a shop is acceptable, however there are concerns with the functionality of the shop space and ground floor activation, discussed further below. It is considered that the use of the upper levels of the site as residential is broadly supported by policy by way of increasing housing density and providing what is considered to be a more affordable floor plate in an accessible location.[8]
   • The site has a preferred maximum building height of 12 metres (3 storeys) and a mandatory building height of 14.6 metres. The plans notate a maximum building height of 14.33 metres; however, this appears to be taken to the top of the plant screening. The overall height to the top of the parapet of the lift overrun is 13.71 metres.
   • The proposal exceeds the preferred height limit by up to 1.71 metres and one storey but does not exceed the mandatory height limit. The ACZ1 stipulates that the preferred maximum building height may be exceeded in some circumstances if:
     • It can be demonstrated that a significant community benefit can be achieved; and
     • It continues to meet the objectives, requirements and guidelines in relation to visual impact and overshadowing with increased upper level setbacks.[9]
3. Notably Council's grounds of refusal and submission does not include any reference to the proposed overall external built form.

DOES THE PROPOSAL PROVIDE AN ACCEPTABLE LEVEL OF INTERNAL AMENITY?

1. Council submits the proposal is unacceptable. They say:
   1. In summary, Council has serious concerns with this proposal in terms of the internal amenity that will be provided to future residents. This concern falls into two categories:

a) Firstly, the layout of the two apartments at Level 1 fails to provide those units with a satisfactory level of internal amenity. Unit 101 fails to provide the minimum internal room dimensions required by Clause 58, while Unit 102 fails to provide any external facing windows to its habitable room and fails to provide any area of private open space. > > b) Secondary - and perhaps less 'clear cut' to address/assess - is noise from surrounding land uses. The site is within the Chapel Street Activity Centre and is near several existing entertainment venues; most notably Killing Time at 11 Chapel Street to the south, and Piano Bar at 15 Chapel to the north. The acoustic evidence provided by the applicant's own expert shows that noise from these venues - Killing time at 11 Chapel Street in particular - is significant and the current proposed construction will not be sufficient to address it. Notwithstanding alleged non-compliances with permit conditions applicable to adjoining entertainment venues, the fact is the testing shows new dwellings at 13 Chapel would experience significant noise issues from music under existing conditions.

1. Council submits dwelling 101 fails to provide the minimum internal room dimensions required by Clause 58.07-1- Functional layout objective, Standard D26 as it has a minimum dimension of 3.23 metres. More specifically they say for a studio apartment, the relevant Standard D26 requires a minimum living area of 10 square metres with a minimum dimension of 3.3 metres.
2. They say whilst the variation may seem minor it is noteworthy that the adjoining bedroom provides limited access around the queen bed and to the associated built in wardrobe.
3. The applicant submits an assessment against the requirements of table D12 at clause 58.07-1 reveals that dwelling 101 has a minimum depth of 3.3 metres from the internal wall that accommodates the cupboards opposite the kitchen, with a width of 4.9 metres, to give an area of 16.1 meters squared for the living area. They say in this context the useability and functionality of dwelling 101 is well defined with three separate areas, with the kitchen and bathroom not being located within the same space as the bedroom.
4. Clause 58.07-1 - Functional layout objective seeks to ensure dwellings provide functional areas that meet the needs of residents. Relevant decision guidelines at clause 58.07-1, require consideration of matters that include the design response, the extent to which the habitable room is provided with reasonable daylight access and the useability, functionality and amenity of the dwelling based on layout, siting, size and orientation of habitable rooms.
5. In this context I have been persuaded by the applicant that the proposed layout and the dimensions of the living area are acceptable. The proposed layout provides three functionally separate and discernible areas that are interconnected. The interconnection is an acceptable design response as it enables the functional use of the space and circulation between the areas.
6. Further the living area abuts a balcony along its west boundary. The location of the balcony and associated windows and sliding door provides reasonable access to light that contributes to the functionality and amenity of the dwelling. In this context the proposed room dimension and functional layout is acceptable. The proposal acceptably responds to the objective at clause 58.07-1 with respect to the minimum living room dimension and meets the relevant objective.

1. Council submits dwelling 102, fails to provide any external facing windows to its habitable room and fails to provide any area of private open space. They say:
   • The internal habitable area of Unit 102 is shown with a sliding door and 'windows' to a 'balcony', but closer examination of the plans shows that the 'balcony' is in fact an internal space enclosed on all side and roofed.
   • The roof of the proposed 'balcony' contains skylights; however, it is still an enclosed space and cannot realistically be called a balcony.
   • If it is expected that the 'balcony' is an internal space, then the proposal fails to satisfy the private open space requirements of clause 58.05-3 Private open space objective, Standard D20. The standard requires an 8.0 square metre balcony to be provided.
   • Similarly, if we accept that the 'balcony' is in fact an internal space, the proposal fails to satisfy the requirement of clause 58.07-3 Windows objective, Standard D28 that seeks to provide daylight into new habitable room windows.
2. The applicant submits:
   • The balcony associated to dwelling 102 would be located behind the existing front façade, which has the existing Victorian double sash windows fronting Chapel Street.
   • In addition to the existing windows daylight is provided by way of six sky lights within the roof structure for unit 102, with two (2) of these skylights located over the balcony.
   • The enclosure of this "balcony space" is commonly defined in architectural terms as a "winter garden". The adoption of winter gardens or the enclosure of balcony spaces is quite common in European design given the extremes in climate.
   • This is an appropriate response given the frontage to Chapel Street in terms of traffic and tram noise, as it provides a buffer area to the living area, in particular at night.
   • The east facing orientation would provide unimpeded solar access during the morning periods, with the north facing skylights providing solar access during the later morning and early afternoon periods.

1. Clause 58.05-3 - Private open space objective seeks to provide adequate private open space for the reasonable recreation and service needs of residents. Relevantly Standard D20 requires the provision of a balcony of 8 square metres with a minimum width of 1.8 metres and convenient access from a living room. The proposal provides a balcony with an area of 9.4 meters squared and minimum width of approximately 5.0 meters.
2. Relevant decision guidelines at clause 58.05-3 seek consideration of the design response, the useability and functionality of the private open space, including its size and accessibility, the amenity of the private open space based on the orientation of the lot, noise exposure and the sunlight it will receive and the useability and functionality of any additional living area or bedroom area.
3. Clause 55.05-4, Private open objective seeks to provide adequate private open space for the reasonable recreation and service needs of residents. Relevantly Standard B28 requires the provision of a balcony of 8 square metres with a minimum width of 1.6 metres and convenient access from a living room. The proposal meets the quantitative requirements of Standard B28.
4. Relevant design guidelines at clause 55.05-4 require consideration of the design response, useability of the private open space, including its size and accessibility, availability of and access to public or communal open space and orientation of the lot to the street and the sun.
5. The proposal seeks to provide private open space in the form of a balcony for dwelling 102. A living area abuts the balcony. Internal glazing and a sliding door separate the balcony and living area with the Chapel Street façade inclusive of two windows forming an outer wall that enclose the balcony. Above the balcony the existing roof is retained with two skylights to be constructed.
6. Having regard to the objective and decision guidelines of the relevant clauses I have been persuaded by Council that the proposed balcony is an unacceptable design response. The enclosure of the balcony by the existing side walls, roof and front façade substantially encloses the open space area and internalises the space. The area may be referred to as a balcony, however in effect it is little more than a narrow (approximately 1.9 metres wide) internal space that is confined by internal glazing/sliding door on one side and walls on the other three sides.
7. I acknowledge the examples of winter gardens provided by the applicant. However, they do not persuade me to support the balcony in the form proposed. The winter garden examples show enclosure of the balconies, however, they include a much greater extent of glazing and or 'openness'. The greater glazing and 'openness' provide greater visual permeability and connection with the external environment that contributes to the amenity that will be experienced by occupants when attending to their recreation needs.
8. In contrast the proposed balcony is substantially enclosed and has very limited external connection. It is better described as an extension of the internal space albeit with a glazed separation.
9. Whilst it is proposed to install skylights, these openings will have limited benefit in improving the amenity of the private open space due to the extent of walls that will surround and dominate the space. Further the functional use of the area will also be unacceptably reduced by its narrow width that is confined by the proposed glazing/sliding doors and walls. The proposed balcony is more akin to a narrow internal room or light court. It will have limited amenity from an open space perspective. In this context I find the open space to be located within the balcony for dwelling 102 fails to provide adequate private open space for the reasonable recreation needs of future residents.

1. Council's submission also raises concerns regarding potential noise impacts on the proposed dwellings due to the existence of two live music venues either side of the site being the Killing Time Bar and Piano on Chapel. Of particular concern are the noise emission from the Killing Bar. They say Clause 58.04-3 - Noise impacts objective, Standard D16 seeks to contain noise sources in developments that may affect existing dwellings or small second dwellings and protect residents from external and internal noise sources. This outcome is said to be consistent with the provisions of clause 53.06 (Live music entertainment venues) to ensure the primary responsibility for noise attenuation rests with the agent of change and the guideline in the ACZ1 that new dwellings have regard to nearby noise generating activities.
2. The applicant called acoustic evidence from Mr Leo. It was his evidence that both the Killing Time Bar and Piano on Chapel have Liquor Licence conditions which restrict music within the venues to background music only (which is defined in the Liquor Reform Act). According to the evidence, music levels within Killing Time Bar are currently exceeding the level considered to be background music by a significant margin and are not compliant with Condition 20 of their planning permit at the nearest existing dwelling at 13 Chapel Street.
3. Mr Leo's evidence is that if Killing Time Bar was compliant with its noise obligations (i.e. background music only and compliant with Part II of the Noise Protocol at the existing dwelling at the subject site), the proposed building fabric construction would be sufficient to achieve compliance with the lowest noise limits applicable under Part II of the Noise Protocol by a margin of 8 dB during the day/evening periods and 6 dB at night.
4. Having regard to my findings that the proposal is an unacceptable design response as it fails to meet the requirements of Clause 58.05-3 - Private open space objective, Standard D20 and Clause 55.05-4 - Private open objective, Standard B28, I see no utility in addressing this matter. The development in its present form is unacceptable and, in the event, a different proposal is sought in the future, this matter, if relevant can be considered at that time.

1. For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[4] Council submission paragraph 3, page 2.

[6] Council delegate report, Strategic Justification, page 8.

[7] Council delegate report, Strategic Justification, page 8.

[8] Council delegate report, Use, page 8.

[9] Council delegate report, Built form, page 10.