Mr R Kelderman, town planner of Contour Consultants; and

Mr D Soussan, planning consultant of Ratio Consultants.

Mr Soussan called Mr M O'Dwyer, architect of H2o Architects to provide expert architectural/urban design evidence-in-chief and he was made available for cross-examination.

Mr J Roach appeared in person and on behalf of Boroondara Residents' Action Group

Mr R Dedoncker appeared in person and on behalf of Mr and Mrs Connolly

Ms M and Ms D Bonacci appeared on behalf of NALDM Pty Ltd

1. This is an application to review the decision by Boroondara City Council ('the Council') to refuse to grant a permit for the development of a six storey building containing a mix of uses with a reduction in the car parking requirements and a waiving of the loading bay requirement at 19-23 Cookson Street, Camberwell.

1. Mr Gobbo sought leave to substitute amended plans that had been circulated in accordance with the Tribunal's practice note requirements. There was no objection to this request and we granted leave. This means the plans that form the basis of our decision are the substituted amended plans.
2. As a result of the amended plans, Mr Soussan explained the Council was no longer pursuing its first two grounds of refusal relating to car parking matters.

1. The hearing took place over 2 days on 26 & 27 May 2008, and we inspected the review site, 2 and 4 Holly Street, 25 Cookson Street and the surrounding area afterwards.

1. The review site comprises three parcels of land (19, 21 and 23 Cookson Street) located on the north side of Cookson Street, opposite Camberwell Railway Station and approximately 50 metres east of Burke Road. It has a combined frontage to Cookson Street of 16.46 metres, a depth of 36.58 metres and an overall area of 602.107 square metres.
2. There is a minor fall across the site from east to west and a fall of about 2.4 metres from north (the rear) to south (Cookson Street). At the rear of the site is a 3.66 metre wide laneway, which provides rear access to the properties at 15 to 25 Cookson Street. This laneway intersects at its western end with another laneway that runs north-south and restricts traffic to a one way northerly direction between Cookson Street and Broadway. The residents advised this laneway has a high level of pedestrian traffic and Ms Dunstan presumed it is associated with persons walking to and from the railway station.
3. The site forms part of the Camberwell Junction activity centre and is located north of the core retail precinct. It is on an elevated slope above the railway station. Currently there are double storey terrace buildings on the site and we noted during our inspection existing uses include a ground level shop in one building and an upper storey office in another building. The existing buildings have a height to Cookson Street of between 9.41 and 9.75 metres.
4. To the south of the site is Camberwell railway station and the core retail precinct of the activity centre. To the west are retail and commercial buildings fronting Cookson Street and Burke Road. Above the commercial activities on the corner of Cookson Street and Burke Road (718-722 Burke Road) is a recent third storey addition containing apartments. Along Cookson Street to the east is a commercial building (25 Cookson Street) containing an antique retail shop and various office tenancies; the intersection of Holly and Cookson Streets; and residential properties beyond including the heritage listed apartments on the northeast corner of the intersection ( 31 Cookson Street). Finally, to the north of the site (on the opposite side of the rear laneway) is a two storey residential dwelling at 2 Holly Street (Mr and Mrs Connolly's home) that has large outbuildings on part of its side (south) boundary and along all of its rear (west) boundary. We note these buildings have operated as an office and we assume it is or has been associated with a home business. Beyond the Connolly's house are two other detached houses (Mr Dedoncker and Mr Junor's homes).
5. Holly Street is a small dead end street contained in a heritage precinct with parking permitted on one side. Restricted parking exists elsewhere in Cookson Street.

1. It is proposed to replace the existing buildings with a new 6 storey building containing ground floor shop, restaurant and office tenancies; 20 car spaces on the second level accessed via the rear laneway; and twelve residential apartments in the upper 4 levels.
2. An entry foyer on Cookson Street provides secure access to all tenancies and the residential apartments. The restaurant and shop tenancies have shopfronts to Cookson Street with the office tenancy located behind. Bicycle spaces are also provided at ground level.
3. The 12 apartments comprise a mix of 2 and 3 bedrooms with balconies and terraces. They are generally oriented to either Cookson Street or the rear laneway.
4. The proposed building will be six storeys in height above Cookson Street and five storeys in height at the rear (due to the slope of the land). It has a four storey podium height along Cookson Street of about 13.5 metres, with the upper two levels setback between 2.5 and 4.5 metres. These two levels are also setback between 2.5 and 9.1 metres from the rear laneway. Overall the maximum building height is in the order of 19 metres (to the top of the lift well).
5. The building is a contemporary design containing rendered masonry finishes, a feature metal screen to levels 2 and 3 of the Cookson Street frontage, and a flat roof form.

1. The review site, surrounding commercial properties and the rear laneway are all zoned Business 1 under the Boroondara Planning Scheme ('the Planning Scheme'). Holly Street properties and properties to the east of Holly Street along Cookson Street are zoned Residential 1.
2. The use of part of the review site as a shop and restaurant does not require planning approval. As the Cookson Street entrance to the office and dwellings is shared and greater than 2 metres in width, planning approval is required to use the site for the purpose of an office and dwellings.
3. Planning permission is required to construct a building or to construct or carry out works in this zone.
4. Planning permission is also required to reduce the standard car parking requirements for all of the proposed uses (clause 52.06) and to waive the requirement for loading bay facilities for the commercial land uses (clause 52.07).
5. There are no overlay controls that affect the review site. It was brought to our attention that the dwellings in Holly Street and the north side of Cookson Street to the east of Holly Street are affected by a Heritage Overlay HO159 known as the Prospect Hill Road heritage precinct.
6. Mr Soussan and Mr Kelderman referred to all of the relevant State and local planning policies in the Planning Scheme[1]. We acknowledge the relevance of these policies but do not intend to repeat them verbatim in this decision. Instead, where relevant, we have referred to various policies in the reasons for our decision.

1. Mr Soussan explained the Council acknowledges there are various policies that support the construction of a mixed use multi-storey building on this site, particularly as it is opposite Camberwell railway station and forms part of a 'principal activity centre'[2]. He submitted the Council's principal concern relates to height, bulk, scale and design details of the proposed building and its impact upon the streetscape and wider area. The residents share the Council's concern.
2. Mr Soussan also explained the Council is of the view the proposed parking and traffic arrangements are acceptable subject to the provision of one additional car space; and the proposal will not have any unreasonable amenity impacts on neighbouring properties (both residential and commercial). This view is not shared by the residents, who raised specific concerns about parking, traffic and residential amenity impacts. Concern was also expressed about the impact upon daylight into commercial tenancies at 25 Cookson Street.
3. We have considered all of these matters and find the proposed height of the building, the car parking and traffic, and the relationship between the proposed building and neighbouring properties are all acceptable. However, we are of the opinion modifications need to be made to the setbacks of the building to create a building form that is respectful of, and appropriate to, its surrounds.

1. State planning policy designates Camberwell shopping centre as a principal activity centre, which makes it an appropriate location for a higher density of development and a mixed use development. The key issue for the Council and the residents is how high the proposed building should be.
2. The Council, Mr Roach and Ms Drost all made specific mention of the Camberwell Junction Structure Plan (December 1993), which is a reference document in the Planning Scheme and it is implemented through the criteria contained in the Camberwell Junction local planning policy at clause 22.02. Within this policy, an 11 metre height is nominated for the Burke Road Hill secondary retail precinct (where this site is located).
3. Mr Roach referred to a draft structure plan of 2008 which he submitted continues to support the 11 metre building height, but Mr Soussan advised this plan is a Council document only at this time and is not relied upon by the Council in this case. As this document is not referenced or incorporated in the Planning Scheme and does not form part of an amendment to the Planning Scheme at this time, we have given it no weight.
4. Mr Roach and Ms Drost submitted other divisions of the Tribunal have accepted the validity of the 1993 Camberwell Junction Structure Plan and Ms Drost referred to "the precedent set by Member Liston" and quoted sections of a paragraph in the matter of ML Design v Boroondara CC [2006] VCAT 613[3]. This matter was determined by Senior Member Liston and Member Keddie, and like all matters before the Tribunal, each case is assessed on its own merits, therefore the findings of this case do not set a precedent. Having said this, we agree with the findings in paragraph 16, particularly the entirety of the last sentence[4]:

It is our view that the Camberwell Junction policy, and the related 1993 Structure Plan, remain relevant considerations but that they must be interpreted and applied in the light of the more recent development of strategic planning for the Junction.

1. The first observation we wish to make is the 11 metre height on a plan in the local planning policy is a nomination or preference at best. It is not a mandatory planning control but, rather, a guide. This means the design of a new building (including its height) must be considered on its own merits.
2. Mr Soussan submitted the Council acknowledges there is some justification for a building in excess of 11 metres in height on this site because of the combining of three allotments into the one development and because 25 Cookson Street (next door) is already in excess of 11 metres[5]. He maintained that the site is constrained by the heritage significance of the Camberwell railway station and 25 Cookson Street, which is graded C in the Camberwell Conservation Study.
3. We do not agree. Firstly, 25 Cookson Street may have been given a heritage grading in a study quite a few years ago, but the fact is it is not included in a Heritage Overlay so, as far as the Planning Scheme is concerned, it has no heritage significance that requires detailed consideration. Secondly, we find the Camberwell railway station heritage precinct is well separated from the review site by Cookson Street. Upon inspection, the railway station and the review site read as two distinct elements in the activity centre. We note Mr Soussan's advice that the railway station land is the subject of a planning application to construct (in part) a three storey building on the southeast corner of Burke Road and Cookson Street. Given these circumstances, we are not persuaded by the Council's submission that there are any heritage constraints on the potential building height on the review site.
4. Mr Dedoncker also expressed concern about the appropriateness of a six storey building adjacent to the Holly Street houses that are in a heritage precinct. We agree with the evidence of Mr Raworth that the development of the review site, though visible, is separated from the precinct by the laneway; there is a notable distinction already between the commercial and residential buildings in Cookson and Holly Streets; we consider that a new taller building on the review site will not adversely impact upon the heritage significance of Holly Street or the remaining areas of this heritage precinct.
5. In conclusion, it must be remembered there are no heritage policies or controls that affect the review site. The State and local planning policies have earmarked Camberwell shopping centre as a place where higher density and a mix of uses are appropriate. Within this planning policy context, we are satisfied that a six storey building is an appropriate built form outcome on this site.

1. The Council and Mr O'Dwyer are of the view the development of the review site could be up to 5 storeys whilst the residents feel 3 or 4 storeys should be the maximum. We are of the opinion a 6 storey building height is appropriate in this part of the Camberwell principal activity centre. We do not consider a 3 storey building height is achieving the planning policy outcomes sought by encouraging higher density development. Nor are we persuaded there is any significant benefit to be gained by reducing the height of the building by one or two levels. Therefore we find the overall building height is acceptable. What needs to be further considered is the potential impact of the building as designed upon neighbouring properties.

1. Mr Soussan described the building forms in the surrounding area as generally two to three storeys in scale, and the commercial buildings in Cookson Street as having a "medium scale, fine grain" character.
2. The proposed building rises to 4 storeys in height on Cookson Street. Despite the Council's view that the 6 storey building should be reduced in height by a storey, both the officer's report and Mr O'Dwyer in his evidence found a four storey height to Cookson Street acceptable, stating the apex of the adjacent parapet gables on the front façade of 25 Cookson Street provide a suitable horizontal benchmark. We disagree. Firstly, the gables occupy only a small part of the front façade of a building which extends over three allotments. Secondly, an analysis of what should be the appropriate podium level on the review site requires a broader assessment than just 25 Cookson Street. We are of the opinion the character of this short but highly visible section of Cookson Street is defined by a strong horizontal presentation[6], which should be respected. The various renderings of the Cookson Street façade presented by the applicant fail to persuade us the projection of the car park screen from the façade, relative to the floor levels proposed above, will succeed in creating an adequate recession (and podium appearance) from Cookson Street.
3. We are of the view the Cookson Street façade should not be higher than the strong main parapet line of 25 Cookson Street (as opposed to the gable elements), which is shown on the substituted application drawings between 76.32 and 76.76 AHD. We note this height would, in fact, closely align with the 11 metre height envisaged by the 1993 structure plan and the Camberwell Junction local planning policy. We are also of the view the proposed building's top 3 levels (above the nominated height for the Cookson Street façade) should be set back. This setback could become a balcony area for the 'third floor'[7] apartments. This means the balcony of the 'fourth floor' will need to be setback to match the wall below or be relocated elsewhere. It is not the role of the Tribunal to redesign proposals put to it, therefore we have not specified what the setback should be or what the design of the balcony should be. The design outcome that we consider necessary is an alignment with the strong horizontal parapet line of 25 Cookson Street, and this is unlikely to be achieved through glass balustrading.
4. In regard to the balcony which projects forward at the 'fifth floor' (top level) close to the Cookson Street front boundary, we are not persuaded by Mr Hutson's evidence that the selected finishes will adequately diminish the visual mass of its projection. We find it has an inappropriate visual impact upon the Cookson Street context, and should be deleted.
5. We are satisfied the proposed design of the metal car park screen will, whilst preventing views of the cars, serve to relate the upper apartment floors to the ground floor retail. However, as explained already, we are of the opinion the front façade would benefit from a more strongly defined horizontal parapet line at the 'third floor' balcony height, and we are confident this can be achieved through some modifications to the design.
6. The Council was critical of the design treatment for failing to respect the rhythm and fine grain of the existing Cookson Street shopfronts. Although the design does not replicate the exact rhythm of the existing shopfronts, we find the proposed division of the street level façade into four is an acceptable design solution. The proposed division will be further enlivened by the shallow recesses of the shopfronts resulting from the column projections; the inclusion of doors into each of the tenancies (as suggested by Mr Gobbo during the hearing); and the robust entrance treatment for the shared access to the office tenancy and the dwellings.

1. None of the parties expressed any substantive objections to the setbacks of the proposed building from the east and west side boundaries, other than the potential loss of daylight into the commercial tenancies of 25 Cookson Street (on the east side). We inspected the ground and upper level tenancies of 25 Cookson Street, and noted the west facing windows of the upper level office tenancies at 25 Cookson Street are protected already by a light well on their property. The ground level retail tenancy contains a retail display in an enclosed area that used to be an open sideage adjacent to the common property boundary with the review site. This enclosed area contains some clear Perspex in the roofing to enable some daylight to penetrate and we accept this will be further diminished as a result of this development. However, in our opinion, this impact is not unreasonable and is not sufficient reason to require any modifications to the proposed design.
2. On our inspection we noted the two windows on the west boundary wall of the 'mezzanine' section of 25 Cookson Street do not appear in the interior (in other words, they have been covered up by walls inside the building). Therefore, we find there is no issue with the proposed building being built up against this boundary.
3. Returning to the upper level west facing windows of the office tenancies, we find the existing light well on 25 Cookson Street provides sufficient daylight opportunities and do not consider any modifications are required to the proposed design. Having said this, we also note the proposed design does include two narrow light courts along the common property boundary from the 'second floor' level, which will assist in breaking up this elevation and providing an additional light source.

1. To the north, the building abuts a laneway, which separates it from the residential property at 2 Holly Street. Despite the inclusion of this property in a Heritage Overlay, we note the original house has been substantially enlarged and the property has an extensive rear building that is, or has been, used commercially with frontage to the north-south laneway to the west. In addition there is a large garage and other outbuildings abutting the laneway behind the review site, further separating 2 Holly Street's private open space from the proposal. All parties agreed, albeit some with reluctance[8], that the proposed screening devices on the upper level balconies of the proposed dwellings would comply with the clause 55 (Rescode) standard in regard to limiting direct overlooking potential into the Holly Street properties.
2. In our view, however, when viewed from the rear of 2 Holly Street, other Holly Street properties further to the north, and from the public realm of Holly Street, the proposal presents considerable visual bulk along this interface. We are mindful that 15 and 17 Cookson Street (to the west, between the review site and the north-south laneway) could also be expected to be redeveloped in the future at a more intense level than at present. Hence we are of the opinion it is important to create an appropriate built form mass adjacent to the rear laneway on the review site that can be used as a benchmark for any further development on 15 and 17 Cookson Street. We consider that the proposed building would relate better to the laneway, to the dwellings further north, and to the massing of the northern portion of 25 Cookson Street by further increasing the setback of the 'third floor' from the laneway to roughly that proposed at the 'fourth floor'. This means the 'fourth floor' balconies will need to be setback to generally correspond with the setback of the wall below or relocated elsewhere.
3. We envisage the increased setbacks we are seeking for the upper levels from Cookson Street and the rear laneway may result in changes on the west side of the building, a reconfiguration of the apartments and/or a loss of some apartments. We leave it to the architects to best determine how to incorporate the required changes.

1. The Council was satisfied with the level of internal amenity for the proposed building. However, given we have determined the 'third floor' should be further setback from the north and south boundaries to match the 'fourth floor', some adjustment will be required to the internal planning and to the provision of open space for dwellings on the top two levels, e.g. by providing open space on the west side or in the light courts on the west side.
2. We have confidence that the architects will be able to resolve these matters. We accept that it may involve a reconfiguration of the setbacks to the west over the upper three levels to accommodate the changes. Notwithstanding our required changes, we are of the opinion the planning of the apartments displays an thorough understanding of apartment layouts and provides a high level of amenity. For this reason alone they will be highly sought after, quite apart from the advantages inherent in their location. We note the proposal will achieve a 5.5 star energy rating in accordance with the Building Code of Australia.

1. In relation to overlooking, overshadowing, noise and daylight to the west facing windows of 25 Cookson Street, we note the Council found the proposal acceptable. Mr Kelderman pointed out there will be a minor increase in overshadowing of the front terrace of the third level apartment within the development at the corner of Cookson Street and Burke Road at around 9am on 22 September, but this will be gone by mid morning. Having considered the details of the proposal, we do not share the concerns of Mr Dedoncker and we cannot agree with Mr O'Dwyer that the proposal produces unacceptable external amenity impacts.

1. Mr Soussan explained the Council is generally satisfied with the provision of car parking and the traffic generated by the proposal if one additional car space is provided (in the form of a car stacker to either car space 12 or 20) so that the car parking can be allocated in the following manner:
   • 1 car space for each 2 bedroom dwelling (a total of 9 spaces);
   • 2 car spaces for each 3 bedroom dwelling (a total of 6 spaces);
   • 2 car spaces for the restaurant;
   • 2 car spaces for the office; and
   • 2 car spaces for the shop.
2. The residents, however, submitted the area is a "hot spot" with parking in the area reaching saturation level; and parking and traffic movements in the area are difficult.
3. Ms Dunstan gave evidence the provision of car parking on the review site needs to be considered in the context of its location in an activity centre, which means it is appropriate (in this instance) to not provide customer parking for the shop and restaurant, and to not provide visitor parking for the dwellings. She pointed out there are parking restrictions in place already in the surrounding streets, including resident parking permits. We accept her evidence.
4. Ms Dunstan also gave evidence the provision of 2 car spaces for the shop is not necessary and one car space would suffice. We accept this evidence and would not require one additional car space to be provided. However, we note there may well be changes to the number of dwellings contained in the building as a result of the additional setbacks we are seeking at the upper levels and this may alter the allocation of car parking. Given the acceptability of the car parking proposed, we are confident an appropriate level of car parking will continue to be provided.
5. In regard to traffic, we accept the laneways, Holly Street and Cookson Street are capable of accommodating the additional traffic movements resulting from this proposal. We also note Ms Dunstan's evidence that the traffic volumes in Cookson Street were lower than she had thought they would be; and that the Council has no objection to the traffic volumes.
6. The Council took no issue with the waiving of the loading bay requirement in the Planning Scheme and Ms Dunstan pointed out loading zones already exist in both Cookson and Holly Streets. Given this, we find it is appropriate to waive the loading bay requirement.

1. We have explained that in order to better relate to both the immediate context and to the neighbourhood, some aspects in this proposal must be changed. These changes particularly focus upon the building setbacks from the north and south boundaries. We are of the opinion these changes can be dealt with as part of this application, but cannot be effectively achieved by way of permit conditions as it is important we are satisfied with the final design details. As we stated earlier, it is not the role of the Tribunal to redesign the proposal, so we have provided the Applicant for Review with the opportunity to respond to our concerns by preparing an amended set of plans and elevations. This is best achieved by issuing an interim order allowing the Applicant for Review an opportunity to amend the proposal. In summary, the amendments we wish to see are:
   • The Cookson Street façade should not be higher than the strong main parapet line of 25 Cookson Street;
   • The proposed building's top 3 levels (above the nominated height for the Cookson Street façade) should be set back and this setback could become a balcony area for the 'third floor' apartments;
   • Consequently, the balcony of the 'fourth floor' needs to be relocated or setback from Cookson Street to match the wall below;
   • The 'fifth floor' balcony projecting toward Cookson Street should be deleted;
   • The inclusion of doors into each of the ground level tenancies (as suggested by Mr Gobbo during the hearing);
   • The setback of the 'third floor' from the laneway increased to roughly that proposed at the 'fourth floor', and the 'fourth floor' balconies setback to generally correspond with the setback of the wall below;
   • Some consequent adjustment to the internal planning and open space provision for dwellings on the top two levels, e.g. by possibly providing open space on the west side or in the light courts on the west side; and
   • Any other consequential changes arising out of these alterations.
2. We wish to emphasise to the Applicant for Review that this interim order provides an opportunity for the Tribunal's concerns to be addressed, and this order is not an opportunity for further changes (other than consequential changes) to be made to the design.
3. The next step is to ascertain whether the Applicant for Review wishes to take up this opportunity and how long they will need to prepare an amended set of plans and elevations. Upon receipt of that advice, we will either issue a final decision affirming the Council's refusal if the Applicant does not wish to amend the plans or, if they do wish to take up the opportunity, we will issue further directions:
   • Requiring the amended plans and a written explanation of the amendments made to be served on the Tribunal, the Council and the Respondents;
   • Providing an opportunity for the Council and the Respondents to make further written submissions on the proposed amendments only; and
   • Requiring all parties to advise in writing if they wish the Tribunal to convene a further hearing and, if so, why.
4. Upon receipt of the amended plans and elevations and all further written submissions, we will then determine if a further hearing is required. Ultimately, we will determine if the amendments are satisfactory (with or without a further hearing). If we find the amendments are satisfactory, we will order that a permit be granted subject to appropriate conditions. If we find the amendments are not satisfactory, we will order that the Council's decision to refuse to grant a permit be affirmed.

[1] Policies in clauses 11, 12, 14, 16, 17, 18, 19, 21.05, 21.07, 21.08, 21.12, 22.02, 22.03, 22.08 and 22.10

[2] As provided for in clause 12 Metropolitan Development of the Planning Scheme and in the reference document "Melbourne 2030"

[3] A proposal for a six storey mixed use development at 851-855 Burke Road Camberwell

[4] We say this as we note Ms Drost only quoted the first half of the sentence "It is our view that the Camberwell Junction policy, and the related 1993 Structure Plan, remain relevant considerations."

[5] Mr Soussan advised 25 Cookson Street has a parapet height of 10.85m-11.29m and an overall maximum height of 14.73 metres.

[6] This strong horizontal presentation was well illustrated in Mr O'Dwyer's evidence

[7] We have referred to the floor levels as 'third floor' to correspond with the description on each of the floor plans but we note, for example, the third floor is actually the fourth level of the building.

[8] We note Mr Dedoncker was concerned about the screening devices not being good enough to limit overlooking as he stated, for example, people may choose to lean on angled screens and view over them