Zig Inge Retirement Villages

[2000] VCAT 2330

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(Judgment by: Baird, M (Member), Komesaroff, T (Senior Member))

Re: Zig Inge Retirement Villages

Court:

Judges:
Baird, M (Member)
Komesaroff, T (Senior Member)

Hearing date: 10 & 11 November 2000
Judgment date: 6 November 2000

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Judgment by:
Baird, M (Member)
Komesaroff, T (Senior Member)

REASONS

1. This is an Application under Section 77 of the Planning and Environment Act 1987 brought by Zig Inge Retirement Villages (Camberwell) Pty Ltd to review a decision made by the City of Boroondara ("the Council") to refuse to grant a permit in application no. BOR 99/349. A Notice of Refusal was issued by the Council on 20 December 1999 on the following grounds:

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The height of the development is excessive and the resultant built form will have an adverse impact on the streetscape(s) and character of the area.

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The proposed development will represent an unduly dominant and intrusive element in this part of the Camberwell Junction.

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The proposed development does not integrate well with the established built form and scale of existing development.

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The proposal does not comply with the Development Principles with respect to height, detailed in the section 173 Agreements which apply to the land.

2. An Application for Review was submitted on 7 January 2000 with the following statement of grounds:

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The proposed use and development will satisfy a significant community need in the City of Boroondara.

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The height of the development is not excessive and the resultant built form will be consistent with the streetscape and character of the area.

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The proposed development will not represent an unduly dominant and intrusive element in this part of the Camberwell Junction.

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The proposed development integrates well with the established built form and scale of existing development.

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The proposal complies with the development principles, with respect to height, detailed in the Section 173 Agreements which apply to the land.

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Alternatively, the Responsible Authority in the proper exercise of its discretion should have agreed to amend the Section 173 Agreements which apply to the land.

DIRECTIONS HEARINGS

3. The proceedings were the subject of two directions hearing before the Tribunal.

4. The first hearing, on 24 March 2000 before Deputy President Bruce, ordered that legal matters arising in the Application for Review be determined by way of a separate hearing to consider questions essentially relating to the issue of the height of the proposed development and its legality in terms of a series of section 173 agreements relating to the land.

5. The legal hearing was held on 17 May 2000. The Tribunal, comprising the same members as at present, ruled by order dated 24 May 2000 that the proposed development (as shown on the plans revised on 29 March 2000 and substituted by the Tribunal), exceeded the height limit referred to in clause 3.2 of each of the four agreements pertaining to the subject land and made under section 173 of the Planning and Environment Act 1987 between the Council and the applicant ("the four agreements"). The Tribunal provided the Applicant with the opportunity to prepare amending plans based on a building envelope described as "scenario 1". Orders were made in relation to the filing and serving of those plans.

APPLICATION TO AMEND PERMIT APPLICATION ("VERSION 6 PLANS")

6. At the commencement of the Hearing, pursuant to clause 64 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, Mr Canavan QC sought leave to amend the application for permit by substituting revised plans (Version 6) for those which had originally accompanied the permit application.

7. Copies of the revised plans had been forwarded to all parties under cover of a letter dated 16 June 2000 from Deacons Graham & James detailing the changes and outlining the permit applicant's intention to seek approval for their substitution. The plans were numbered as TP01 - TP012 (rev. no. 6) prepared by Clive Fredman and John Malina Architects. Some of the principal changes include a reduction in the number of units from 72 (plus the manager's unit) to 68 (plus the manager's unit); a reduction in the number of car spaces from 88 to 82; a reduction in the building form to comply with the building envelope in "scenario 1" (including modifications to a third lift), increased setbacks at the upper levels and a revised treatment of the north-east corner.

8. There was no objection to the substitution of these plans. Being also of the opinion that such substitution was appropriate, the Tribunal made the amendment in the manner requested.

"VERSION 7 PLANS"

9. Prior to the hearing, the Responsible Authority advised the Tribunal that it had come close to a consent position on the proposal, depicted in a "Version 7" set of plans, and had passed a resolution supporting the development subject to detailed conditions reflected in its resolution. These conditions are the draft conditions on which parties made comment during the course of the Hearing. One condition 1(ee) required a pitched roof to be provided to the section of the building facing Fairholm Grove and Prospect Hill Road, within the building envelope determined by the previous Hearing. This was in contest between the Applicant and the Council and is discussed later in these reasons.

10. The Council also resolved to enter into a new section 173 agreement or amend the existing agreements to reflect any plans approved by the Tribunal generally in accordance with a development complying with the Council's draft conditions or a development with building encroachments of a lesser height and scale.

11. The basis of its support meant that the existing section 173 agreements that constrained the land were breached, and the issue of a permit in accordance with the version 7 plans would require an amendment to the section 173 agreements, to which the Responsible Authority was agreeable. The Tribunal comments that this is a private matter between the Responsible Authority and the Permit Applicant, and not a matter for the Tribunal. However, the Tribunal's decision means it support the stance taken by both the Permit Applicant and the Responsible Authority in the version 7 plans and the desire to shift a bulk of the building away from the more sensitive Fairholm Grove interface and west towards the commercial Station Street interface.

SUBJECT SITE

12. The site is comprised of four parcels of land, contained in four separate titles:

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18 Prospect Hill Road Certificate of Title Volume 10329 folio 090

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16 Prospect Hill Road Certificate of Title Volume 3700 folio 920

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14 Prospect Hill Road Certificate of Title Volume 4268 folio 562

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3 Station Street Certificate of Title Volume 10280 folio 735

13. Each title is subject to a separate registered section 173 agreement, as referred to in the Tribunal's order of 24 May 2000.

14. The land has a total area of 4,290 square metres and a cross-fall of 8.5 metres from north-east to south-west. The land is currently occupied by a two storey block of flats, a tyre repair centre and car park that services traders to the Camberwell Junction retail area at nominated times and is otherwise available to the public. Part of the land is also vacant.

15. The various parts of the site are serviced by a number of cross-overs, including three to Prospect Hill Road and one to Station Street. There is a further cross-over to the rear of the existing two storey units accessed off Fairholm Grove.

16. Site abuttals are to the Freemasons Masonic Centre to the west of three lots and to the north of the rear lot, which fronts Station Street. Essentially the site wraps around two sides of that building. The Masonic building is a large two storey structure of three storey proportions. To the west of Station Street, retail premises face both that street and Prospect Hill Road. A complex comprising Safeway and Target and undercroft public car parking is sited to the south of the subject site. This development extends between Fairholm Grove and Station Street. It is of a low rise form abutting the subject land; the Tribunal understands primarily to retain views from properties on the east side of Fairholm Grove westwards to the central City. A 2.2 metre wide public walkway separates the Safeway site from the subject site, providing access between Prospect Hill Road and Station Street.

17. Residential properties are located immediately opposite the subject site, on the east side of Fairholm Grove. These include a unit development, with single storey dwellings, on the north-east corner of Fairholm Grove and Prospect Hill Road and two storey townhouses extending southwards along Fairholm Grove.

18. On the north side of Prospect Hill Road, opposite the site, are two storey townhouses and a two storey office building. Further west, on the north side of Prospect Hill Road is the four storey VicRoads building.

19. Prospect Hill Road is a secondary arterial road. A roundabout is sited at the intersection of Fairholm Grove and Prospect Hill Road. A right turn lane is provided in Prospect Hill Road to provide access to Station Street. Physical barriers prevent right turns from Station Street into Prospect Hill Road.

20. Bus services are provided along Station Street and tram services are available in Burke Road and Riversdale Road. The Camberwell Railway Station is located approximately 200 metres north of the subject site.

PROPOSAL

21. The proposal includes 69 independent living units, being a mix of one bedroom, two bedroom and three bedroom unit. A manager will live in one unit. A range of communal facilities is provided including lounges, courtyard, dining room and recreational areas. The Tribunal understands that the units may be sold with the communal facilities managed through a body corporate administered by the permit applicant. Varying levels of care and medical support are to be provided to assist residents.

22. The various levels of the development in the version 6 plans were summarised by Mr Biasci as comprising the following:

Basement Floor Plan

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A total of 82 car spaces proposed in a basement (including 8 in tandem).

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Access provided via Prospect Hill Road and Station Street.

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Provision for internal rubbish bin enclosure and loading bay.

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Lift and stair access to upper levels proposed.

Lower Ground Floor Plan (FL63.0m)

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A Managers Residence and storage area proposed (over the basement car park) facing Station Street.

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Building Setback 6.5m from Station Street (S173 Agreement requires a 3m setback).

Ground Floor Plan (FL 65.7m)

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Fourteen (14) apartments proposed (all 2 bedroom).

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Main entry to building via a porte cochere from Prospect Hill Road.

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Kitchen, Dining, Lounge, Activities Room, Library, Wellness Centre, Nurse and Staff Facilities.

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Plaza and Outdoor Courtyard Garden Area of approx. 500 square metres.

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A 2m wide public walkway is maintained along the southern boundary in accordance with the s. 173 Agreement.

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Building Setbacks: 7.0m-9.4m to Prospect Hill Road

5.0m-7.3m to Fairholm Grove

5.0m-6.5m to Station Street

First Floor Plan (FL68.7m)

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Twenty-three (23) apartments proposed (20x2 bedroom and 3xl bedroom).

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Building Setbacks: 7.0m-9.1 m to Prospect Hill Road

5.0m-7.3m to Fairholm Grove

6.5m-8.5m to Station Street

Second Floor Plan (FL71.55m)

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Twenty (20) apartments proposed (16x2 bedroom and 4xl bedroom).

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Building Setbacks: 7.0m-9.1 m to Prospect Hill Road

5.0m-7.3m to Fairholm Grove

39m to Station Street

Roof/Third Floor Plan (FL74.4m)

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Eleven (11) apartments proposed (1 x3 bedroom, 9x2 bedroom and 1xl bedroom).

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Communal roof-top terrace proposed.

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Building Setbacks: 7.5m-11m to Prospect Hill Road

5.2m-15.8m (variable) to Fairholm Grove

56m to Station Street

North and East Elevations

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Top Floor is setback 2m behind the floor below on Fairholm Grove Elevation

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Top Floor is setback 3 to 4m behind the floor below on Prospect Hill Road Elevation

West and South Elevations

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Top Floor is setback 2m behind the floor below on Station Street (West) Elevation.

23. As noted above, the version 6 plans comply with the building envelope interpreted by the Tribunal as "scenario 1" but later "version 7" plans will require modifications to the section 173 agreement to reflect the additional built elements to the south-west section of the site. The version 7 plans include the following key changes:

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deletion of the third lift and modifications to the treatment of the north-east corner, replacing the cylindrical element.

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inclusion of one additional car space and relocation of the rubbish bin enclosure in the basement.

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addition of a 3 bedroom unit to the south-west corner of the second level.

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deletion of two units on the third floor to increase the setback to Fairholm Grove.

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one unit removed and replaced with two units on the western side of the development.

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balconies squared off.

PLANNING SCHEME CONTROLS AND PROVISIONS

24. The subject land is zoned Business 2 under the provisions of Clause 34.02 of the Scheme. The purpose of the Zone is:

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To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

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To encourage the development of offices and associated commercial uses.

25. Under the provisions of Clause 32.02, a permit is required to use and develop the land for a retirement village. The Tribunal understands that the communal facilities in the development will be within a single management entity but that the units may be sold privately. This is similar to the scenario considered by the Tribunal in Application for Review 1999/22775 Retirement Services Australia Pty Ltd vs Boroondara City Council and Ors , wherein the use was found to be defined under the new format Planning Scheme as a dwelling. This was because the land was not contained within one ownership, which is a requirement for the definition of residential village , within which retirement village is nested.

26. The decision guidelines require consideration of Clause 65 (general decision guidelines), and, as appropriate, the State and Local Planning Policy Frameworks, and a range of other matters including vehicle movement and traffic generation, loading, provision of car parking and Good Design Guide.

27. Various policies of the State Planning Policy Framework and Local Planning Policy Framework are relevant to this Application for Review. They include Clauses 14 (Settlement), 16 (Housing), 18 (Health Facilities), 19 (Urban Design and Built Form), 21 (Municipal Strategic Statement), 22.02 (local policy relating to Camberwell Junction) and 22.10 (local policy for retail centres) and are discussed later in these reasons. The Tribunal notes that Clause 22.07 (local policy relating to Neighbourhood Character) applies to land within Residential 1 Zones, which is not the case here. The provisions of Clause 52.06 (Car Parking) and Section 60 of the Planning and Environment Act 1987 are also relevant. Clause 22.03 sets out a local car parking policy.

THE BUILDING ENVELOPE

28. Several Respondent Objectors made submissions in relation to the interpretation of the building envelope nominated in the section 173 agreements. Based on background material and consultation processes they had participated in, it was submitted that the Council had meant to create a building box on each of the four titles which at no point exceeds 11 metres above ground measured perpendicularly. The Tribunal was also advised of a Council resolution of 9 October 2000 which, in part, refers to the Council's disappointment at the Tribunal's interpretation of Clause 3.2 of the section 173 agreements. Having said that, the Council had resolved to support (subject to conditions) the version 7 plans and to modify the section 173 agreements to allow some elements of the development to protrude outside the envelope defined as "scenario 1".

29. It is not necessary to revisit the Tribunal's previous findings in relation to this matter, as the submissions of the Council and Applicant for Review are clearly set out together with the basis for the Tribunal's finding in the order dated 24 May 2000. The Tribunal understands that some people may have contrary views to the Tribunal or understood that the Council may have had a different intent. However, the Tribunal was required to interpret the legal agreement on the basis of the words contained within in it, based on the submissions put by those parties to that Hearing. No plans or other material were appended to the agreements to provide any other basis for interpretation.

30. A building envelope, such as that agreed in the section 173 agreements between the Council and owner, is a tool that assists to guide the scale of a new development. A proposal replicating the envelope (which in this case is a series of boxes) may not necessarily produce a satisfactory design response without some form of variation and detailing and, just because it is within the envelope does not mean that a development will automatically be approved. Moreover, the Tribunal understands expectations that the envelope is the outer limit and indeed notes that this is intended to provide certainty to all parties.

31. With the benefit of a specific design, it is now possible to critically review the proposal. The outcome of such a review may find that in some sections, building to the maximum envelope is not acceptable or also may conclude that it is reasonable to consider minor modifications to an envelope where the impact does not cause any or additional detriment and where the parties to an agreement concur. The Tribunal turns its attention to the task of assessing the merits of the version 6 and version 7 proposals in the remainder of these reasons.

BASIS OF DECISION

32. The crux of the issues before the Tribunal in this Application for Review relate to the design form of the proposal in terms of its consistency with planning policies and its relationship to the residential precincts to the east and north. Matters relating to car parking and traffic movement are also important issues raised in submissions to the Tribunal.

33. In summary, the views of the parties were:

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The Responsible Authority indicated its support for the version 7 proposal, based on the reduced built mass along the Fairholm Grove section of the site. The principal outstanding matter of concern to the Council was its desire for a pitched roof form to be incorporated into the Fairholm Grove and Prospect Hill Road sections of the site within the confines of the scenario 1 envelope to better reflect the form of development at the residential interface of the site. Car parking and traffic were not specific concerns of the Council, although matters of detailed design relating to the entries to the site and car park areas were also to be the subject of refinement.

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The Applicant for Review submitted that the proposal is appropriate in terms of the context of the site within Camberwell Junction and its Business 2 zoning. It was submitted that the development is consistent with planning policies for Camberwell Junction and that the development appropriately references its commercial and residential interfaces. Traffic movement and car parking were considered to be satisfactory in terms of the requirements of the development and any impacts. The need for the facility was stressed.

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Respondent Objectors were of the view that the overall intensity and density of the development was too great and would detrimentally impact on the residential areas nearby. They considered that the development is not consistent with the planning policies of the Scheme (notably Clause 22.02), the Camberwell Junction Structure Plan and the common "building design" clause of the section 173 agreements. Comments were made that the modifications to the plans offer little reduction in scale. Several residents also expressed concern about the traffic and parking impacts of the proposal that would in turn result in vehicle intrusion in nearby local streets. Some more specific issues were also raised, such as the impact of the development potential on the adjacent Masonic site and construction hours.

34. Having inspected the site and locality, considered the submissions and evidence presented by the parties, and examined the applicable planning policies, the Tribunal sets out its findings in relation to the key issues below.

Policy Framework

35. A range of policies must be balanced in determining this Application for Review. The submissions of all parties, and the evidence of Mr Biasci, dealt with these in some detail and it is useful to list them:

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Health facilities are referred to at Clause 18.06.

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Residential development and housing are referred to in Clauses 14, 16 & 21.

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Neighbourhood character and urban character are also referred to in Clauses 14, 16, 19 and 21.

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Policies in relation to urban design and built form are referred to in Clause 19.03.

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Policies in relation to Camberwell Junction are set out in Clauses 21 and 22.02.

36. The key principles set out in these policies that are relevant to the current Application for Review include:

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preserve and enhance the municipality's characteristic built environment and encourage development that is compatible with that character.

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maintain and increase housing choice and diversity in residential areas and increase residential development opportunities in and around commercial centres and other strategic locations.

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minimise the impact on non-residential uses on surrounding areas and residential amenity.

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encourage facilities and services for the aged in or around commercial centres and in areas which have good access to public transport and in locations where impacts will be minimised on surrounding areas.

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inject renewed retailing confidence into Camberwell Junction, while ensuring redevelopment occurs in a sympathetic manner.

Housing for Older Persons

37. State and local planning policies support the provision of a wider diversity of housing and the provision of accommodation specifically to meet the needs of a growing older population. The Tribunal understands that the need for a facility such as that proposed is not in question between the parties. It is worth recording that submissions in relation to the need for accommodation for older persons were made by Mr Finanzio and Mr Canavan and evidence by Dr Anna Howe, a gerontologist, was called by the Applicant.

38. The Tribunal finds there no need to repeat or analyse submissions and evidence in detail. The evidence of Dr Howe was, broadly, that the population of Boroondara is ageing and that there is a need for facilities such as that proposed which allow for independent living while also offering access to a range of services that will facilitate "ageing in place" . This concept is important both in terms of the ability of older persons to remain within a familiar living environment, geographic area and community. This concept is acknowledged within the MSS and the proposal will assist to provide an alternative housing choice for older persons within the municipality.

39. The Tribunal finds that in locational and policy terms, the site is suitable for the proposed use. It is well located to community, retail and public transport services. It is a residential-based (albeit commercially oriented) use on land that is at the edge of the Junction where higher density development is encouraged. It interfaces with a residential-based area to the north and east. In principle, the Tribunal finds no basis to suggest that the site is unsuitable for the use proposed.

Camberwell Junction and Design

40. The submissions and evidence before the Tribunal is that the site is located within Camberwell Junction, as defined by Clause 22.02 of the Scheme, which sets out a local policy for the Junction. The Clause has the following objectives:

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To achieve high standards of design and development and to protect the amenity of surrounding residential areas and within the Junction itself.

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To encourage the role of Camberwell Junction as weekly shopping with some comparison retail functions.

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To reinforce the north-south axis of the Burke Road strip.

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To supplement the Junction's commercial base with entertainment, education, public transport and civic facilities and with higher density housing to further develop its role as a community focal point.

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To protect the surrounding residential areas from traffic and parking impacts generated by activity in the Junction.

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To improve pedestrian access within the Junction.

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To maintain and enhance the distinctive shopping character of the Camberwell Junction's retail environment.

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To encourage a variety of forms of housing in and around the Junction.

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To maintain the scale and character of the Junction's buildings and spaces and to improve the quality of the pedestrian environment.

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To create a vibrant, attractive, functional and safe environment for users of the Centre.

41. A number of policies are set out at Clause 22.02-3, including the following that are relevant to the Application for Review:

Housing

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Residential development as part of the mixed use of sites at the edge of the Junction be encouraged.

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Living above shops be encouraged.

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Medium density housing close to the Junction be encouraged.

Residential amenity

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The incursion of non-residential uses such as medical centres into residential areas be discouraged.

Community facilities

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Uses which operate beyond normal trading hours be encouraged.

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A range of community facilities to provide for the needs of all sectors of the community and for recreation and leisure purposes be provided.

Traffic and parking

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Local streets be protected from non-residential traffic and parking.

Scale and character

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All new developments respect the present character and scale of the Junction.

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Sympathetic refurbishment of existing buildings be promoted.

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A high level of interaction between the streets and public spaces and private space be encouraged.

Views and gateways

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Important views to and from the centre are maintained and enhanced and new vistas within the centre be created.

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The gateways and perimeters of the centre be emphasised.

42. The decision guidelines of Clause 22.02 require the consideration of a range of matters including:

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Whether the proposed land use conforms with the preferred locations of land uses and significant potential development sites shown on Map 2 attached to this policy.

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Whether the proposed development conforms with the scale and character guidelines shown on Map 3 to this policy.

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Whether heights and setbacks conform with Plan 4 attached to this policy.

43. The Tribunal notes that:

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Map 2 identifies the subject site as a "potential development site" .

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Map 3 identifies the site as "potential landmark building" and "gateway to the centre" . This map also refers to a desired minimum 3 metre landscape setback along Prospect Hill Road and Fairholm Grove.

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Plan 4 [note the Scheme cites this rather than Map 4] identifies the site as within two areas. The bulk of the site is in an area where there is a height limit of "11 metres height limit - measured from any point of major street frontage to top of building" . The southern section of the land (mainly the Station Street site) is described as "8m height limit measured to external wall height".

44. The Camberwell Junction Structure Plan (1993) is a reference document in the Scheme and the Tribunal understands that it forms the basis of much of the policy set out above. In addition, Maps 2 and 3 and Plan 4 are replicated from that Structure Plan.

45. It is significant in addition to the above policies that the section 173 agreements include a Clause relating to "Building Design" which states:

If the Owner redevelops the Subject Land the Owner must ensure that its redevelopment proposal reflects the policy objectives of the Camberwell Junction Structure Plan which identifies the Subject Land as a gateway to the Camberwell Junction Centre and the site for a landmark building and must ensure that its proposals respect public viewlines along Prospect Hill Road and the styles of properties which are close to the Subject Land. (Tribunal's emphasis)

46. In the Tribunal's view, the above policies provide a framework within which the proposal can be properly assessed in terms of its design and form. The policies emphasise the importance of the site as a gateway to Camberwell Junction. In itself, the site is a landmark, but there may be other elements of a building that allow it to become a landmark - this does not necessarily mean it has to be higher than all around it. Similarly, while higher density development is also encouraged to maximise the use of infrastructure (and presumably to assist to relieve pressure in more sensitive residential precincts) this must also be balanced with objectives relating to the protection of residential amenity. In this regard, the policies also recognise the importance of the residential interfaces in terms of design as well potential impacts such as traffic and parking.

47. It is important that the Tribunal comment on the appropriate application of the policies of the Scheme and the extent to which the policies at Clause 22.02 (and its preceding Structure Plan) should be regarded as mandatory. This is necessary as it was clearly the view of the local residents involved in this matter that the height limits referred to in Plan 4 to Clause 22.04 (which include the site within 8 and 11 metre height limit areas) are mandatory. They were alarmed when hearing Mr Biasci's evidence that the policy is intended to provide guidance but that there is flexibility to exceed the limits included on the plans.

48. The Tribunal finds that the decision guidelines set out in the Scheme (including the maps to Clause 22.02) and the policies of Clause 22.02 must be given great weight but they do not prescribe mandatory requirements. Of course the provisions are intended to serve a purpose - that is to assist to guide the exercise of discretion. As stated at the commencement of the Local Planning Policy Framework: "These policies must be taken into account when preparing amendments to this scheme or making decisions under this scheme" . In a similar way, some flexibility was allowed by the Structure Plan to consider proposals that do not strictly comply with the guidelines set out. The Plan states that it seeks to achieve high standards of design and to minimise detriment to the amenity of surrounding residential areas and within the Junction itself. It goes on to say that:

The details of the Plans are guidelines not statutory rules. Proposals therefore that do not fully comply with the Plan may still be approved provided they can be justified and that Council is satisfied that the proposal meets or exceeds the intent of the Plan and that a better result can be achieved.

49. There is a range of policies that must be considered by the Tribunal in making a decision about this Application. It is not reasonable to focus only on one aspect of the Scheme in isolation from how the proposal meets the policy intent and directions of the Scheme as a whole. The end is to achieve a balance between the policy objectives.

Density

50. The issue of the density of the development was a particular concern to Respondent Objectors and requires comment by the Tribunal. While the concerns could be interpreted to relate to the resultant building form, the Tribunal's understanding was that residents were concerned also about the density per se (at 1:60 approximately) which was regarded as excessive for this site and locality. They drew reference to the provisions of Clause 22.02 in support of their view that although higher density housing may be reasonable, high density housing as is proposed is not supported in policy terms.

51. A discussion of density, reduced to one of numbers, must proceed with caution as it cannot be presumed that a high density is an automatic indicator of over-development or a proposal that is too intense. For example, in the case of two proposals for the same site comprising 6 single storey two bedroom units or 4 double storey three bedroom units, the second proposal would have a lower density than the first but potentially much more significant off site affects. Density figures alone are not necessarily an indicator of the form of a development or how it responds to adjoining sites. For this reason, the Tribunal does not find it helpful to isolate the discussion by focussing on a specific density measure. It is appropriate therefore to turn to other considerations relating to neighbourhood character. These include matters such as setbacks, height, form and landscaping.

52. The Tribunal finds nothing to suggest that the internal layout or amenity of the units, as retirement units, is flawed as a result of its density. While one can adopt various views about the wording of the Planning Scheme in relation to "medium", "higher" and "high" density, these terms are relative to the nature and form of surrounding development and the words must be considered in light of the intent of the whole of the Scheme, not read in isolation.

53. The overall policy intent of the Scheme, reflected in State Planning Policy, the Council's MSS, Clause 22.02 and the 1993 Camberwell Junction Structure Plan is that increased dwelling densities are to be encouraged within the shopping centre and adjacent to the shopping centre. This approach responds to wide ranging matters such as enhanced use of services and infrastructure and promoting energy efficiency in terms of decreasing reliance on vehicles.

54. As has been stated, the Tribunal finds considerable policy support for an intensive development on the site, including in the section 173 agreement that limits development to residential within the Business 2 Zone on No. 18 Prospect Hill Road. Whether the proposal is too large is not so much a function of its density at 1:60 square metres; rather, it is the built form outcome that is determinative. The Tribunal turns to this matter next.

Design and Built Form

55. The issues relating to the design of the development range from an overall concern of Respondent Objectors to the scale and mass of the proposal to the very specific concern of the Council about the roof form. The matter of the roof form is the only contested issue between the Council and the developer in relation to the design.

56. The Tribunal has noted above that the policies of the Scheme designate the land as a landmark site and gateway to the Camberwell Junction. These policies must be given weight.

(i) Overall Development Form

57. The scale of this proposal is acceptable in the context of the site, within Camberwell Junction, and policies relating to the development of the Junction. There are a range of development forms and scales throughout the Junction and its peripheral areas. The Tribunal's attention was drawn to other four storey developments in, for example, Camberwell Road south-east of the Junction and the nearby VicRoads building in Prospect Hill Road. Some of these developments are located within areas that are also designated with an 11 metre height area in the Camberwell Junction Plan. The Tribunal also observed a number of other substantial developments in the Junction, such as the Rivoli Theatre complex and buildings along Camberwell Road, north-west of the Junction. That scale of development is in accordance with the overall intent of the Junction Structure Plan/Planning Scheme and is not unexpected in one of Melbourne's prime activity centres. These taller buildings at the periphery of the Junction form consistent distant viewline anchors.

58. The Tribunal does not accept submissions that the development results in an undesirable precedent. The version 6 plans comply with the building envelope described in the section 173 agreements, although it is accepted by the Tribunal that because of the fall of the land they do not maintain an 11 metre across the whole site. Moreover, the site cannot be equated with the residential areas to the east of Fairholm Grove which are subject to heritage controls. The different planning controls and physical context demand and justify a design response for this site that is different to those areas. The Tribunal cannot support submissions proposing a low rise residential form typical of that heritage area.

59. The development would be read differently when compared with the four storey VicRoads building diagonally opposite because it has a lesser setback than that building and is located on a more elevated position on Prospect Hill. It would, therefore, potentially appear more prominent.

60. The principles adopted by the proposal in terms of its streetscape relationship are generally supported by the Tribunal. Along the Prospect Hill Road frontage, the development is setback by around 3.4 metres from the common boundary with the Masonic Hall, with some balconies set marginally forward of the front building line of the Masonic Hall. The development recesses its north-west corner at the uppermost level, reducing the extent to which the development would appear to loom over the adjacent Hall. Even though the development is higher than the large Masonic Hall, it is not substantially so in terms of height.

61. The more significant impact is a result of its length and mass - extending some 57 metres along Prospect Hill Road. An attempt has been made to break up that mass, but the modulation (ie variation of setbacks through the building) is relatively limited. The Tribunal considers that there would be some benefit from a streetscape perspective to further articulate this façade so that the development reads as a number of vertical building elements. This could be achieved through some additional variation in the setbacks through all levels as well as through materials and finishes. This is addressed by conditions.

62. The consideration of the Fairholm Grove streetscape raises a number of matters. The Tribunal notes concerns raised by residents in relation to the interface of the proposal with the relatively low rise form of Safeway and Target to the south of the site. The Tribunal is mindful of the approach adopted in the Camberwell Junction Plan and subsequently Clause 22.02 that steps development up the Fairholm Grove hill, with an 8 metre height precinct associated with the bulk of the Safeway/Target complex. The 11 metre height policies clearly envisage a higher form of development north of that site, which the Tribunal understands has been deliberately kept low to protect views from properties on the east side of Fairholm Grove toward the City.

63. The development has sought to be recessed and articulated at the eastern interface with Safeway/Target. However, the Tribunal considers that the stark contrast of 4 storeys closely set adjacent to the low form of Safeway along the east and south elevations would benefit from additional setbacks along the southern elevation of the eastern wing and the upper south-east corner of that wing. Its order reflects this in terms of modifications to the plans.

64. The Tribunal has two further concerns about the east elevation in the version 7 plans - the treatment of the north-west corner and the setback adopted for the third floor (fourth level). The Tribunal does not consider that the 2 metre setback of the uppermost level is adequate for it to be read as a sufficiently recessive element. The various views to the site mean that the uppermost level will be readily visible, although the Tribunal accepts Mr Irvine's evidence that from close views the top level will be less apparent. Moreover, the interface is primarily to single storey dwellings opposite. The Tribunal considers that this is better treated in the version 7 plans, where several units have been deleted along the south-east section of the third floor, thereby focussing the mass of the development to the northern section of this elevation.

65. This leads to the second matter of concern which is the north-east corner of the site and the built form proposed at this edge. This is at the high point on the site and is most prominent when viewed from the east. It is also at an interface with single storey dwellings in Fairholm Grove. The fourth level will be readily apparent because of the relatively narrow setback adopted around this corner. While the Tribunal considers that most of the Prospect Hill Road elevation is acceptable, nevertheless, having regard to the residential interface to the east, it considers that the fourth level to Fairholm Grove should be recessed further to reduce the perceived bulk at this corner and thereby achieve a less dramatic transition from the residences to the gateway to the Junction precinct. That requires a minimum 5 metre setback to Units 5 & 6 from the level below. This will require both units to be re-configured.

66. It was suggested by a number of residents that the building should be separated by a central courtyard, thereby breaking up the built mass. Given the findings above, the Tribunal does not consider this to be necessary.

(ii) Appropriate Roof Form and Elevation Detailing

67. There was considerable discussion during the Hearing about the roof form and whether a pitched roof was necessary, as contained in the Council's resolved conditions. Mr Finanzio submitted that the section 173 agreements refer to the need to reflect the "styles of properties which are close to the Subject Land" and this requires consideration to both residential as well as commercial properties. He also noted that the early versions of the plans included pitched roof elements and suggested that this was evidence of the designers acknowledgment of such a roof form as a feature of the area.

68. An urban design report prepared for the Council by Mr A Olszewski was tabled, although the author was not called to give evidence. Mr Olszewski expressed concern about the Fairholm Grove elevation, referring to the four storey bulk and uninterrupted roof line as particular concerns. He suggested that the architectural form and articulation of the façade lacked refinement and proposed that the façade be altered to reinforce the rhythm of the building elements. He added that "there is potential to explore pitched roof treatment to break the monotony of the roof and parapet lines".

69. The evidence of Mr Biasci and Mr Irvine was that the parapet form of the development is an appropriate urban design response and that the articulation within the façade of the development provides a strong and appropriate relationship with the residential areas to the north and east.

70. The Tribunal accepts the expert evidence in relation to the Prospect Hill Road elevation and does not consider that a pitched roof form is necessary to respond to the form of commercial or residential development to the south, north or west. The Tribunal's comments above in relation to some additional modulation of that façade, which will be reinforced by permit conditions, will be sufficient to break up the built mass.

71. The Tribunal takes a different approach in relation to the Fairholm Grove façade. In balancing the various policies contained in the Planning Scheme cl.22.02-3, the Camberwell Junction Structure Plan 1993 reflected in the maps within Clause 22.02, including references to gateway site, landmark building and commercial/residential interface, the unique factor that influences the Tribunal to a preference for further articulation of the Fairholm Grove façade is the specific requirement of each of the section 173 agreements that the design respond to the "styles of properties which are close to the subject land" . Further, the particular section 173 agreement relating to No. 18 Prospect Hill Road, at the corner of Fairholm Grove, goes further and requires use of that land for "residential purposes" notwithstanding its zoning (Clause 3.6). The fact that there are separate agreements bordering the site means that each parcel must individually ensure that its design responds to the styles of properties close to it. The interface with Fairholm Grove differs to the other edges of the site, with details such as pitched roofs, gables and the like evident in dwellings opposite.

72. Therefore, the Tribunal accepts the Council's submission that the use of some alternative detailing would assist to respond to the design forms of dwellings opposite that includes pitched roof elements. However, the Tribunal considers that it is unnecessary to simply add a pitched roof - this will add bulk. Instead, additional variation in the façade detailing (possibly including gable forms) could be used to break up what may otherwise appear as a solid parapet line over a considerable length. This is addressed by conditions.

(iii) Impact on Viewlines

73. Viewlines were an issue raised by local residents and are a consideration referred to in Clause 22.02. Objectors were concerned about the imposition of building bulk on the public viewlines down Prospect Hill Road and the loss of views across the suburban areas to the west and south, including to Our Lady of Victories in Burke Road. The evidence of Mr Biasci was that the development would frame the view corridor and Mr Irvine did not consider a loss of views to be a significant issue.

74. This issue principally relates to views when travelling westwards along (and downhill) on Prospect Hill Road. Views across the site currently allow distant views to the City and suburban areas, dependent on where one stands. The Tribunal understands that the proposal would result in a different foreground image to the viewlines toward the City. However, with the setbacks proposed along the Prospect Hill Road frontage, the Tribunal accepts the evidence that the development will define an edge to, but not block, views to the City.

75. Views along Fairholm Grove will also be changed but there is no key viewline that is earmarked for protection. The loss of some views across the existing low rise forms on the site to suburban areas is not, in the Tribunal's view, a significant issue. Views to Our Lady of Victories are already constrained by the existing units on the site. Views to that church from Fairholm Grove will remain over the Target and Safeway buildings.

76. The Tribunal notes that views from the south side of the Junction (ie. Burke Road uphill) to the subject site and the proposed development would be possible. However, the Tribunal finds nothing in the visibility of the development in that regard to suggest that it intrudes on a significant viewline or corridor. That a building on a landmark site could be visible is, also, not a surprise, particularly where the policy framework suggests an outcome development of 11 metres on some of the higher ground in the area.

Internal Amenity

77. One of the concerns raised by Respondent Objectors related to the lack of open space within the development and the extent to which the internal courtyard would be in shade.

78. The evidence of Mr Biasci and Mr Irvine was the courtyard would receive sunlight and, without a direct road interface, would offer a higher degree of privacy and amenity. Open space associated with the units was said by Mr Biasci to be satisfactory, particularly having regard to the extent of internal communal recreational facilities available.

79. The Tribunal notes that each unit is provided with a private terrace or balcony. There is also access to internal and external communal recreational and open spaces. Given that intended occupants are retirees, of varying physical abilities, the Tribunal does not consider that the areas provided are inadequate. It has been held by the Tribunal in considering proposals for older persons accommodation that there is a degree of importance of access to communal open space and in some instances a lesser dependence of requirement for private open space. The intended occupants of the proposed development will have a degree of mobility and independence that differs to, for example, nursing home residents. However, the Tribunal does not consider the proposal as deficient in relation to its provision of open space.

80. The central courtyard will be extensively shadowed, although the shadow diagrams show that there would be direct sunlight available during the middle of the day.

81. In the Tribunal's view, it would have been preferable for a differently oriented courtyard to have been designed into the development. However, given that the balconies of each unit mostly face north and west, with some facing east, residents who desire direct sunlight will have access to some sunlight at some time during the day. Communal areas, such as the outdoor area associated with the activities room, will also obtain some sunlight. Presumably some seating could be sited in the sunnier positions within the central communal garden. The Tribunal is, however, mindful that some older people desire outdoor spaces that are well shaded as, for medical or other reasons, they wish to minimise their access to direct sun.

Car Parking

82. The proposal (version 6) provides for 82 car spaces. A total of 83 spaces is shown in the version 7 plans.

83. The use is agreed by the parties to be a retirement village. This use is not listed in the table to Clause 52.06, although the rate for a dwelling is 2 spaces to each dwelling. The provisions of Clause 52.06 allow a permit to be granted to reduce the number of spaces required or to waive the requirement. The decision guidelines of Clause 52.06-1 set out a range of matters to which the Responsible Authority (and Tribunal on review) must be satisfied to justify a reduced provision. These include:

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Any relevant parking precinct plan.

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The availability of car parking in the locality.

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The availability of public transport in the locality.

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Any reduction in car parking demand due to the sharing of car spaces by multiple uses, either because of variation of car parking demand over time or because of efficiencies gained from the consolidation of shared car parking spaces.

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Any car parking deficiency or surplus associated with the existing use of the land.

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Any credit which should be allowed for a car parking demand deemed to have been provided in association with a use which existed before the change of parking requirement.

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Local traffic management.

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Local amenity including pedestrian amenity.

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An empirical assessment of car parking demand.

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Any other relevant consideration.

84. Clause 22.03 sets out a local car parking policy and although it does not specifically refer to retirement village, it requires 1.5 car spaces per dwelling and 0.2 spaces per dwelling for visitors. This would result in a total requirement of 116 spaces for the development. The objective of the Clause is to ensure that a development provides "sufficient parking to meet its own demands in appropriate locations". The policy requires applicants to provide information demonstrating that in special circumstances a lower amount of parking is justified, provided that planning objectives can be met on a continuing basis.

85. Local residents expressed their concerns about parking associated with the development and particularly the potential for overflow parking into residential areas. The Tribunal understands that issue is of sensitivity given the number of shoppers to the area both during the week, on weekends, and to attend activities such as the regular Camberwell Sunday Market. The Tribunal is also mindful that the development will result in the removal of a car park that is presently available, at varying times, to traders and the public.

86. Some criticism was made of a report prepared by GTA Consultants for the Council in relation to parking. The Council did not call any evidence in relation to that report. Mr Wegman referred to a number of problems with that report, including the limited degree of comparability between the current proposal and the other residential facilities examined. The Tribunal accepts that criticisms can be made about some aspects of the report and has not relied on it.

87. Mr Hunt gave evidence in relation to car parking. He stated that the parking rate provided by the proposal is 1.19 spaces per unit and that all spaces have been designed in accordance with the requirements of the Planning Scheme.

88. The evidence of Mr Hunt in relation to parking demands and parking availability is relevant to considering whether a reduced parking provision is acceptable. Based on a number of case studies cited in his evidence, Mr Hunt adopted a peak parking demand for staff, visitors and residents of 0.7 spaces per one and two bedroom unit, resulting in a demand of 49 spaces. He considered that 6 spaces would be required during the critical staff overlap period.

89. In Retirement Services Australia Pty Ltd v City of Boroondara and others, cited above, the Tribunal said in relation to parking:

Adequate on-site car parking can be provided for residents, visitors and staff. Although Mr Grogan expressed the view that the provision of 0.3 spaces per bed would be sufficient, the Tribunal considers that a higher requirement is appropriate in cases where the residents are more likely to be more active. In this case, the Tribunal considers that the ability to purchase services on an "as needed" basis may result in this complex being more appealing to aged persons who may enjoy a higher level of independence than say the residents of a nursing home or hostel. Accordingly there is a greater potential for residents to still be driving. The Tribunal considers that the provision of 0.3 spaces per residential suite plus 0.15 spaces for staff and visitors to be appropriate for the proposed use. Overall the Tribunal is satisfied that the number of car spaces required can be provided and the design of the car parking areas and accessways meet the requirements of the Good Design Guide.

90. The Tribunal is aware that in the current Application for Review, there is a much higher accessibility to public transport than in the cited case. The amount of parking provided on site is considered to be more than adequate to accommodate the demands generated by the facility.

91. Another matter of some discussion during the hearing related to the provision of a designated staff parking and visitor area. Mr Canavan indicated that the Applicant sought a flexible layout whereas the conditions drafted by the Council sought an area of 14 designated spaces. The principle concern related to the use of 16 tandem spaces (leaving 66 unencumbered spaces) which the Council would prefer linked to 2 or 3 bedroom units. If 14 spaces are allocated for staff and visitors only, it is not possible to specifically allocate one space to each unit.

92. Mr Canavan and Mr Finanzio resolved their differences by agreeing on wording for a condition requiring a parking management plan, which is reflected in the permit conditions.

93. It remains unclear to the Tribunal how the flexible approach sought by Mr Canavan may work in practice. However, the Tribunal is firmly of the view that a designated area for staff and visitors is necessary. Its order reflects this. The Tribunal accepts that the operation of the remaining spaces can be the subject of a parking management plan to the Council's satisfaction.

Traffic

94. A number of issues about traffic movement around and to the site were referred to by Respondent Objectors. These matters include the safety of the roundabout at Fairholm Grove/Prospect Hill Road (including its use by semi-trailers for deliveries), the speed of vehicles travelling along Prospect Hill Road and the safety of the proposed access point off Prospect Hill Road. There was also extensive discussion about the operation of access points to the car park and in particular, the porte corchere.

95. Mr Hunt 's evidence was that, based on case studies he cited, traffic generation of 3 vehicle movements per day, per unit, could be expected, with a peak hour traffic generation of 0.4 vehicle movements per unit. This would result in 207 movements per day, with a peak of 28 per hour. Peak hour traffic volumes were estimated to be during the morning on weekdays and weekend afternoons when visits are highest. Mr Hunt was of the view that these peaks would not coincide with the shopping centre peak or commuter peak. Mr Hunt also stated that traffic associated with the development would be less than the existing movements associated with the car park, tyre centre and units on the subject site.

96. Traffic movement associated with the proposed development is not considered by the Tribunal to be a matter that warrants the rejection of the proposal. The Tribunal understands that all streets surrounding the proposed development carry substantial amounts of traffic and that again there are concerns from nearby residents about an overflow of vehicles into their locality. However, the Tribunal accepts the evidence of Mr Hunt that the traffic generated by the proposed development is within the capacity of the road network and may be less than associated with existing uses on the land. The access points to the site from Prospect Hill Road are essentially in their existing locations, with the exception of the point closest to the roundabout at Fairholm Grove that is to be removed. In terms of safety, there is therefore little basis to suggest that conditions will be worsened.

97. The operation of the porte-cochere was a matter that occupied a considerable amount of time during the Hearing. The issue related to traffic movement associated with that entry and exit area and the adjacent basement car park. The proposal, as described by Mr Hunt, is for the porte-cochere to operate on a one-way east-west movement. Access to the basement car park, via the westerly crossover, would be two way. He proposed that a give way line marking be introduced to regulate vehicle movement.

98. Conversely, it became clear as the Hearing progressed that the Council desired the one-way system to operate fully through this area, so that the only access into the site from Prospect Hill Road was from the eastern crossover and that the western crossover was limited to vehicle exits. This would mean that any vehicles entering the basement from the north would be required to travel through the porte-cochere. No evidence or advice from the Council's traffic engineers was provided by Mr Finanzio to support this submission. It is an arrangement that was not supported by Mr Hunt.

99. In the Tribunal's view, there is clearly sense in the porte-cochere operating as a one-way route. The Tribunal is, however, concerned to minimise conflicts between vehicles exiting the basement and porte-cochere and vehicles entering the basement from Prospect Hill Road. This is important given that this development is sited on a busy secondary arterial and older drivers will be regular users of the car park. Accordingly, the Tribunal accepts the Council's submission in this regard and will limit ingress/egress arrangements by way of permit conditions.

Landscape Considerations

100. The substituted plans show a notional landscape arrangement and the Tribunal was shown a copy of a landscape plan submitted with the original application plans. The landscape plan shows the retention of several trees along the Fairholm Grove frontage of the site as well as the retention of several street trees. The Tribunal was advised that it is not clear at this time whether the trees are still proposed to be retained in the latest design concept.

101. It is appropriate for the preparation of a landscape plan to be considered further although the Tribunal would encourage the retention of any existing trees capable of being retained.

102. No issues were raised by the parties in relation to the protection of trees on adjacent land, as an existing brick wall along the western site boundary is to be retained. This was not a matter of concern to Mr Morris, who appeared on behalf of the Camberwell Freemasons Hall Trust. However, the Tribunal considers that works should not damage the existing large tree within the frontage of the Masonic Hall site, which is prominent in the streetscape and an attractive feature.

Impact on the Adjoining Masonic Site

103. Mr Morris referred to two principal concerns relating to the proposed development on the adjoining Camberwell Freemasons Hall Trust site.

104. The first was the potential that residents within the retirement village may seek to restrict the activities on the Masonic site if they had concerns about, for example, noise, odours or late night activity.

105. The second concern related to the impact on the development potential of the Freemasons land. This was in terms of loss of sunlight or daylight to the units if the owner of the Freemasons site sought to construct to the boundaries of its site or develop the remainder of its site. To avoid this problem, Mr Morris suggested that the western elevation of the proposed development should not include any windows and be fully built up to the common boundary with the Masonic Hall.

106. The Tribunal appreciates the concerns of the Freemasons in relation to their existing activities. The Tribunal is mindful of the potential for incoming residents in primarily commercial locations, on occasions, to seek to restrict pre-existing levels of activity by non-residential uses. Having said that, any future expanded use or development of the Masonic site should proceed in the usual manner in accordance with the planning control framework in place at the time. [No firm proposal is understood to presently exist]. The Tribunal considers that adopting a blank western wall to the proposed development would not result in an acceptable design solution, would waste opportunities provided by the site and finds no basis to support that suggestion.

107. Therefore, the Tribunal will require that all purchasers or tenants of units directly or diagonally facing the Freemasons Masonic Hall property at the corner of Prospect Hill Road and Station Street must have a clause inserted into their contract of sale or lease drawing to their attention the presence of the Masonic Hall and that the Freemasons Trust may redevelop its site in the future in accordance with its Business 2 zoning and presently uses its site for commercial and entertainment purposes. This will be achieved by the use of a section 173 agreement encumbering the title and present and future owners of units.

Delivery Hours

108. Mrs Loane also raised concern about deliveries to the site and her concern that long delivery hours may be used as a precedent by other commercial users to also seek longer delivery hours.

109. The Tribunal notes that no deliveries could occur via Fairholm Grove as there are no driveways or car park entries proposed along this frontage, unlike the existing loading docks provided for Safeway and Target. As a result of conditions relating to the height of the entries to the car park (2.1 metres at Fairholm Grove and 2.5 metres to Station Street), larger vehicles will be required to utilise the Station Street entry to the site. This is the furthest location from existing residential properties and the closest point to the rubbish storage area. It is the location where the largest vehicles could be expected. While this does not prevent some vehicles utilising the driveway area on Prospect Hill Road, the Tribunal considers that the hours set down in the Council's draft conditions are acceptable. There is no basis to suggest that allowing these hours could provide a precedent for longer hours to be sought by the retail uses whose loading facilities have a more direct interface with housing.

Construction Hours

110. Mrs Loane referred to her concerns about the hours of construction given the needs of her baby and the need for nearby residents to have some respite. The draft conditions refer to construction only between 7am and 8pm on Monday to Friday and 8am to 5pm on Saturdays. No construction on Sundays is proposed. The Tribunal understands that the Applicant for Review has agreed to modified construction hours on weekdays, to 7pm. The Tribunal considers that the hours set down in the draft conditions, with the weekday variation agreed to by the Applicant, are acceptable and achieve a balance between the amenity of residents and the desirability of completing the works expeditiously.

CONCLUSION

111. The Tribunal appreciates that some of the matters on which it has been required to make a judgement have a degree of subjectivity and that some local residents will not concur with the view finally adopted. The Tribunal, however, has sought to determine whether an acceptable outcome has been achieved by this proposal - one that reasonably balances the policy imperatives nominated by the Council in the Planning Scheme and the impacts on residential amenity.

112. The Tribunal finds that the use proposed is consistent and supports the objectives of the Planning Scheme in relation to the development of Camberwell Junction and the outstanding need for additional accommodation for older persons. These findings are given considerable weight by the Tribunal.

113. It is the form of the proposed development that is the primary basis of dispute between the parties. Planning policies and the zoning of the land support a relatively intense development proposal on this site, however, the Tribunal must be mindful of the location of the land opposite residential areas and the form of that development. The Tribunal has carefully examined the proposal in terms of its consistency with planning policies, the section 173 agreements that apply to the land, and the character of its various interfaces. It finds that the form of the proposal (with some modifications to the north-east section, southern elevation and each streetscape elevation) provides an acceptable interface with the residential areas to the east and north and references them in terms of the proposed design, materials and form. It is also appropriate in the context of the adjacent non-residential properties.

114. The Tribunal is satisfied that parking and traffic matters are, or can be satisfactorily resolved.

115. The Tribunal understands that part of its determination which supports the version 7 plans will require modifications to the existing section 173 agreements or, alternatively, for the existing agreement to be replaced with a new agreement relating to the whole of the land.

116. The Tribunal records that its required modifications result in a reduction in built elements and none of its variations to the design would enlarge the development beyond the scenario 1 parameters of the section 173 agreements, as adjudicated by the Tribunal in its May 2000 decision.

DECISION

For the reasons set out above, the decision of the Responsible Authority is set aside, and we will so order.