1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

A0.2 to A07 inclusive, A1.1, A2.2 to A2.14 inclusive, A3.1 to A3.4 inclusive, A3.6, A4.2 to A4.6 inclusive, A5.1 to A5.8 inclusive,

1. In application P2082/2017 the decision of the responsible authority is set aside.
2. In planning permit application PP16/101442 a permit is granted and directed to be issued for the land at 1052 - 1058 Toorak Road Camberwell in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:
   • Construction of a four-storey building above a basement car park comprising not more than 37 dwellings and alteration of access to a road in a Road Zone Category 1

Mr P Connor QC and Ms M Chorn of counsel instructed by Best Hooper Lawyers. They called expert evidence from:

• Mr T Biles, town planner
• Mr J Kiriakidis, traffic engineer
• Mr R Kelderman, town planner
• Mr P Greenup,
• Mr J Patrick, landscape architect

A visual amenity witness statement prepared by Mr C Goss was circulated and tabled at the hearing however Mr Goss was not called to give evidence

Mr How Ng, town planner appeared for Chuong Huyn & Ors

Construction of a four-storey building above three basement levels of car parking. Thirty-seven dwellings are proposed comprising 8 x 2-bedroom apartments, 25 x 3 bedroom-apartments, 1 x 2 -bedroom townhouse and 3 x 3-bedroom townhouses. Car parking for 119 vehicles are proposed comprising 110 spaces for residents and 9 visitor spaces. The proposal has a maximum overall height of 14.93m.

Application under section 77 of the Planning and Environment Act 1987 - to review the refusal to grant a permit.

Clause 32.08 General Residential Zone (GRZ5 - Main Roads)

Clause 32.08-6: A permit is required to construct two or more dwellings on a lot. A development must meet the requirements of Clause 55.

Clause 52.29: A permit is required to create or alter access to a road in a Road Zone Category 1.

The review site is located on the south side of Toorak Road on the south east corner with Dickens Street.

The site comprises four contiguous residential properties that exist as six lots. The site has a frontage to Toorak Road of 60.9m and to Dickens Street of 45.72m. The site has an area of 2772m2. Three of the dwellings on the review site are single storey and the fourth dwelling is double storey.

The site has a fall from its north - west corner at the street intersection to the south - east corner of about 4.13m.

The site is in an established residential area comprising predominantly double and single storey dwellings. The Hartwell neighbourhood activity centre is about 340m to the east at the intersection of Camberwell Road and Toorak Road. The site is otherwise well served by physical and social infrastructure including public transport in the form of bus services and trams operating along Camberwell Road and Toorak Road to the east of Camberwell Road. The Hartwell Railway Station is about 640m to the east of the review site.

The review site's immediate abuttals comprise a double storey brick dwelling to the east (1060 Toorak Road), double storey dwellings to the south (5 Dickens Street and 1 Ruskin Court), and a double storey dwelling to the south - east (2 Ruskin Court). To the west, opposite the review site (1050 Toorak Road and 2A Dicken Street) there are double storey attached dwellings.

The residential area to the south of the review site comprises predominantly single and double storey detached dwellings. The area to the south is included in a Neighbourhood Residential Zone.

1. This is an application to review the decision of the Responsible Authority to refuse permission for the construction of a four-storey building comprising 37 dwellings. The Responsible Authority issued a Notice of Refusal to Grant a Permit on 14 grounds.
2. The Council's grounds of refusal are based on an application for a five-storey building and 43 dwellings.
3. Two of the Council's grounds of refusal allege that the proposal exceeds a mandatory building height and does not meet the mandatory garden area requirement. A further ground is that the proposal fails to meet the standards and objectives of Clause 58 of the planning scheme.
4. These grounds of refusal are no longer pursued by the Council because by Order dated 19 December 2017 the Tribunal found that the application benefited from the transitional provisions of the planning scheme in relation to the mandatory height and garden area requirements and Clause 58.
5. The balance of the grounds of refusal are related to the height, bulk, scale and massing of the proposal which the Council considers to be excessive having regard to the site's physical and strategic context. The Council broadly considers the proposal to be an overdevelopment that has adverse impacts on the character of the neighbourhood and the amenity of neighbouring residents. A range of internal amenity concerns are also identified.
6. There were many objectors to the application and the objector's concerns broadly reflect the Council's grounds of refusal, although they also identified additional specific issues. Several of the objectors have lodged statements of grounds with the Tribunal following the applicant's submission of this application for review.
7. Following the Council's refusal of the application, the applicant for review prepared amended plans which I substituted for the application plans at the start of the hearing. It is these plans for a four-storey building comprising 37 dwellings that I am considering[3].
8. Having considered the submissions and the evidence, and having inspected the review site, neighbouring properties and the wider neighbourhood, I have concluded that the principal issues in this case can be categorised under the following headings:
   • Is the proposal acceptable having regard to the site's physical and strategic context?
   • Does the proposal contribute to unacceptable amenity impacts?
9. I have concluded that a permit should issue for this proposal. The review site exhibits a range of attributes that make it a suitable candidate for a development that contributes to State and local housing diversity and settlement policies. The proposal introduces a new and larger built form into this locality but, having regard to the zoning of the land, the general policy support for increased residential densities on main roads in this location, the site's proximity to services and facilities, the height, scale and massing of the proposal is acceptable.
10. The design of the proposal has responded to the site's sensitive residential interfaces through a combination of building setbacks, provision of landscaping opportunities, the recessing and siting of upper levels and the creation of breaks in built form. The proposal is acceptable in terms of its impact on the amenity of neighbouring properties. The proposal also provides for an acceptable level of internal amenity for future residents.
11. My reasons are set out below.

IS THE PROPOSAL ACCEPTABLE HAVING REGARD TO THE SITE'S PHYSICAL AND STRATEGIC CONTEXT?

1. The Council and the objectors broadly acknowledge that the review site has the capacity to accommodate some form of medium density housing but submit that the scale of development proposed in this application is excessive and is not supported by the relevant provisions of the planning scheme.
2. Having regard to the broad acceptance by the parties of the site's suitability for medium density housing it is necessary only for me to record that in relation to this application, the State and local policy planning policy framework seeks to:
   • Increase the supply of housing in existing urban areas by facilitating increased housing yield in appropriate locations.
   • Locate new housing in or close to activity centres and employment corridors and at other strategic redevelopment sites that offer good access to services and transport.
   • Encourage residential development that respects the character of the neighbourhood and implements character policy and guidelines.
   • Encourage the design of energy efficient buildings;
   • Ensure that development improves housing choice, makes better use of existing infrastructure and improves energy efficiency of housing;
   • Achieve high quality urban design and architecture that reflects the particular characteristics, aspirations and cultural identity of the community.
   • Encourage the provision housing to accommodate future housing needs and preferences of the local community[4].
3. Notwithstanding the broad acknowledgement of the review site's suitability for development, the Council and the objectors submit that at this location, local policy encourages development to respect existing or preferred neighbourhood character, and there is no policy support for a development that because of its height, form, scale and massing creates a new character for this neighbourhood.
4. The Council refers to its local housing policy at Clause 21.05 of the Municipal Strategic Statement (MSS) which articulates a vision around the facilitation of a diverse range of housing in line with housing demand, on a hierarchical basis reflecting the physical characteristics or each locality.
5. Objective 1 of Clause 21.05-1 is to facilitate residential development in accordance with Boroondara's Housing Framework. That Framework (Table 1 of Clause 21.05-1) establishes the hierarchy of development outcomes referred to above. Land zoned GRZ5 which includes the review site, is applied to land on main roads and transport corridors. The outcome for GRZ5 zoned land specified in Table 1 is to support moderate change consistent with preferred neighbourhood character. This outcome is contrasted to those areas zoned GRZ1, GRZ2 and GRZ3[5] in which the outcomes specified also support moderate change, but which reflects a mixture of detached dwellings, villas and townhouses as well as apartment buildings. In the case of land zoned GRZ1, apartment buildings are encouraged where appropriate along main roads. Respect for existing or preferred neighbourhood character is not specifically referenced as an outcome in the housing Framework Plan for these zones[6].
6. The Council submits that the zoning of the review site as GRZ5 is intended to implement its local housing policies and to encourage a less intensive form of development than that which could be reasonably be expected in those areas that have been zoned GRZ1, GRZ2, GRZ3 and GRZ4.
7. The Council submits that while land zoned GRZ5 is earmarked for moderate change, the level of change considered acceptable is that in which respect for preferred neighbourhood character is a defining influence. The Council also points out that in GRZ5 there is no specific encouragement for developments of the scale proposed here, and apartment style developments are also not specifically encouraged.
8. The Council in this case refers specifically to the contrasting outcomes sought for land zoned GRZ5 and GRZ1 because the GRZ1 has been applied to a relatively wide area to the east of the Hartwell activity centre along both sides of Toorak Road. In this location Toorak Road has a tram route and the abutting residential area is described in Clause 21.05-1 as "Suburban precincts without a consistent, open back yard character".
9. The Council further submits that its Neighbourhood Character Policy at Clause 22.05 reinforces its strategic and hierarchical approach to providing for increased housing diversity by linking preferred character objectives to the zoning of the land. For example, at Clause 22.05-6 the preferred character objective for land zoned GRZ2 and GRZ3 is to facilitate development up to three storeys in height that integrates with and complements the varied scale and type of development in the precinct.
10. The preferred character objective for land zoned GRZ1 is to provide for development up to 2 storeys that respects the suburban, detached character.
11. With respect to the GRZ5 Clause 22.05-8 states that:

The General Residential Zone Schedule 5 (GRZ5) has been applied to properties on an interim basis while the responsible authority undertakes further strategic work to determine what zone should be applied to these areas. These areas were formerly proposed for inclusion in the Neighbourhood Residential Zone.

1. The preferred character objective is to ensure development respects and enhances the preferred character for the precinct, and it is policy to ensure new development reinforces the character attributes that contribute to the precinct's preferred character.
2. The preferred character for the neighbourhood is further articulated in the Boroondara Neighbourhood Character Study Methodology and Implementation Report (2013), which divides residential areas within Boroondara that have common characteristics into precincts and identifies the preferred character of each precinct. The Boroondara Neighbourhood Character Precinct Statements (2013) is a reference document in the Boroondara Planning Scheme. The review site forms part of Precinct 63. The preferred character statement is to enhance the consistency and character of streetscapes and to maintain the spacious 1 and 2 storey suburban feel of the area and the garden setting of dwellings.
3. Precinct 63 also contains guidelines with respect to matters including siting, building height and form and building materials and design details.
4. The Council and the objectors are quite strident in their criticisms of this proposal. They submit that the planning scheme establishes a clear vision for the development of the municipality's residential areas and this proposal has been formulated in a manner that has no regard for that vision or for the detailed provisions of the planning scheme, that give effect to and implement the vision.
5. They submit that this proposal has been designed in isolation of its neighbourhood context and fails to respect in any meaningful way the spacious 1 and 2 storey scale of existing development in the neighbourhood and gives little recognition for the garden settings of dwellings.
6. The specific design flaws identified by the Council and the objectors can be summarised as follows:
   • The proposal will create a jarring and visually dominant presence. Buildings having a four-storey height are unprecedented in this neighbourhood.
   • The proposal has a "crammed" appearance, lacks spaciousness and fails to provide adequate opportunity for the provision of effective landscaping.
   • The visual perception of the proposal is one of continuous built form resulting from an excessive footprint, inadequate setbacks and the provision of breaks in the built form that are tokenistic and fail to create any sense of relief from the mass and volume of that built form.
   • The proposal adopts a bulky and "box like" appearance that dominates the streetscape, provides excessive hard paving and fails to either maintain existing vegetation or provide sufficient replacement planting. All of these features of the proposal conflict with the precinct 63 guidelines.
   • The proposal fails to achieve a transition in height, scale and form to the residential area to the south, an area zoned Neighbourhood Residential.
7. I have commented previously that there is no substantive dispute in this case about the review site's suitability for some form of development that increases housing diversity and density. Accompanying this acknowledgement, it is important that there must also be an acknowledgement that a development of the site in a manner that contributes to increased housing diversity and density will almost inevitably lead to a built form that is larger and more visually prominent than that which currently exists. The character of the area will experience some change as a consequence of that.
8. In arriving at a decision about whether the level of change in character brought about by this proposal is acceptable, it is important not to lose sight of or diminish the importance of those strategic and physical context matters that support the development of this site. It is worth reiterating that there is policy support for the redevelopment of this site. That policy support is reinforced by the zoning of the land, and the lack of overlay controls that constrain the site's development. The site's location on a main road, its proximity to an activity centre and its inclusion in the PPTN area under VC148, all contribute to a finding that the redevelopment of the site in a manner that contributes to housing diversity and settlement policies is strategically justified. The fact that this is a large, consolidated, generously proportioned site with a regular configuration, underlines the site's suitability for redevelopment incorporating a building or buildings of some scale. The site is also located on a corner and it benefits from dual street access which enables access from the main road to be avoided.
9. These factors must be weighed against the planning scheme provisions and policies identified by and relied on by the Council and the objectors that emphasise respect for existing or preferred character, in arriving at a decision about the acceptability of this proposal.
10. I am satisfied that the proposal does achieve an acceptable outcome. Prior to recording my findings about the proposal's built form response to the site's context, it is appropriate that I make some observations about the weight to be applied to the specification of a preferred character for precinct 63 under the Council's Neighbourhood Character Study and articulated in the Character Precinct Statements. The guidelines included in the precinct statement are relevant and I am required to have regard to them in my assessment of the proposal, but in doing so, I observe that the guidelines apply over a wide area and there is little recognition in them about the different built form outcomes that are encouraged in different parts of the precinct. I note that the guidelines apply in the same way to land zoned GRZ5 in which moderate change is encouraged, as they do to the residential area to the south which is zoned NRZ3, in which the Housing Framework calls for minimal change. The Tribunal has commented in previous cases about the limitations of the precinct statements in assisting decision making about developments on land in the GRZ5[7] and I agree with the Tribunal's findings in those cases.
11. My conclusion about the acceptability of the proposal's built form response to the site's physical and strategic context is influenced by a range of factors that are summarised as follows:
    • The review site is located on a section of a main road which because of its proximity to an activity centre, public transport, services and facilities has been zoned GRZ5 and is an area which is designated for moderate change. The development of the site is not constrained by overlay controls and there is no maximum height applicable to this application.
    • The strategic justification for the site's redevelopment combined with the site's physical attributes (area, configuration, corner location) should not be underestimated and their importance should not be diminished in any assessment of the site's potential to contribute to the achievement of housing diversity and settlement policies encompassed within the planning scheme.
    • The proposal has been designed to achieve an acceptable balance between the achievement of increased housing diversity and density on the site while also responding to character and amenity considerations. In particular:
      • The mass of the building's presentation to Toorak Road is broken up by effectively using two building modules and by providing an additional deep recessed section in the western module. Combined with the varied street setbacks, the opportunity for landscaping, the use of varied materials and the articulation in the built form generally, the proposal creates a development that acceptably reflects the more fine grained subdivision pattern along Toorak Road.
      • The design uses the slope of the land to acceptably transition the building height to the east and importantly to the south where the site abuts land in the NRZ3.
      • The upper level of the proposal is significantly recessed to ensure that the building is appreciated primarily as a three storey form in Toorak Road. The height of the building then further transitions to the south along the side street (Dickens Street).
      • The proposal appropriately adopts a contemporary architectural form and uses a range of materials and finishes which enhance its architectural expression.
      • The site planning and design detail provides a level of transparency into the site when viewed from the public domain and creates legible pedestrian entry and logical site circulation.
12. A further element in the consideration of any proposal's acceptability, is the assessment of the proposal's impact on the amenity of neighbouring properties. My assessment of this aspect of the proposal follows:

DOES THE PROPOSAL CONTRIBUTE TO UNACCEPTABLE AMENITY IMPACTS?

1. The review site has direct residential abuttals to the south, south-east and east.
2. To the south, the site abuts a double storey dwelling (5 Dickens Street) which has a common side boundary with three of the four lots comprising the review site. No. 2 Ruskin Court has a rear boundary interface with the eastern most lot of the review site, while 1Ruskin Court has a partial abuttal to the south east of the review site. To the east 1060 Toorak Road has a side boundary abuttal to the review site.
3. In broad terms the Council and the objectors submit that the totality of the proposal's height, bulk and mass contributes to general adverse amenity impacts resulting from the change in built form character in the area and the disruption to the existing outlook from the established surrounding residential areas.
4. I have detailed above my findings about the acceptability of the proposal from a character perspective having regard to the review site's strategic context and the support for the proposal by the applicable policy framework. Having regard to my findings on this matter I am unable to conclude that the change in outlook from the wider residential area resulting from the construction of the proposal, can be regarded as an unacceptable amenity impact.
5. Specific concerns are also expressed about the proposal's visual bulk impacts when viewed from abutting properties especially the dwelling at 5 Dickens Street which has habitable room windows facing the review site and the southern elevation of the proposal will be fully exposed to that dwelling.
6. Both Mr Biles and Mr Kelderman provided detailed assessments of the proposal's neighbour amenity impacts and an analysis of the proposal against the relevant standards and objectives of Clause 55. I agree with their conclusions about the acceptability of the proposal's amenity impacts because:
   • The proposal demonstrates compliance with and in many respects generous exceedance of relevant Clause 55 standards in relation to overlooking, overshadowing, loss of daylight and side and rear setbacks.
   • The proposal's southern interface treatment incorporates a combination of design features which successfully contain visual bulk impacts to acceptable levels. In addition to the landscape setback provided along the southern boundary, the proposed building is primarily limited to a two-storey height along the sensitive southern interface with the upper levels significantly recessed. The footprint of the upper levels comprise relatively small components in terms of their presentation to the most sensitive points of the interface.

• In relation to the eastern interface both Mr Kelderman and Mr Biles acknowledge that the proposal does not meet standard B17 of Clause 55 at the upper levels of the proposed building. Having regard to the nature of the interface with the dwelling to the east (1060 Toorak Road) which comprises a long, narrow side boundary setback, the proposed setback is acceptable and meets the relevant Clause 55 objective[8]. Significantly, the secluded private open space of the neighbouring dwelling is located on the eastern side of the dwelling and the living areas are oriented toward that open space.

1. The objectors in this case raised concerns about the traffic and car parking impacts associated with the proposal. They submit that the vehicular access to the site from the side street will lead to significant increases in volumes and movements into and out of the site, combined with the prospect of the increased traffic infiltrating deeper into the residential area to the south of the site.
2. Mr Kiriakidis gave evidence about these matters and concluded that the increased traffic volumes and movements can be accommodated within the existing street network without any significant or unacceptable impacts on the functioning of the street network or the amenity of the surrounding area. I note the Council did not oppose the application on traffic or car parking grounds.
3. Based on the evidence the proposal is expected to generate about 192 vehicle movements per day (vmpd) with 19 movements anticipated in each of the morning and afternoon peaks. Traffic counts show that there are currently about 380 vmpd in Dickens Street. As a result of the additional 192 vmpd the traffic volumes remain well below the environmental capacity of the street.
4. The intersection capacity analysis undertaken by Mr Kiriakidis demonstrates that the proposal has no significant adverse impact on the functioning of the intersection.
5. With respect to car parking the proposal provides parking at a rate in excess of the planning scheme's requirements. Submissions received from objectors about car parking matters must be considered by me in that context. In any event, based on the evidence any overflow car parking from the proposal can be accommodated on - street in the surrounding street network.
6. The Council did raise a concern about the acceptability of the internal amenity of some of the proposed dwellings. These concerns relate primarily to the location of secluded private open space within street setbacks, the extensive overshadowing of the communal open space and the daylighting characteristics of one of the apartments (W1.05).
7. I do not share those concerns and I am satisfied that the proposal as a whole provides a more than acceptable standard of amenity for future residents. The secluded private open spaces are sited and configured so that they are functional, and their provision is supplemented by the communal open space, which is also configured so that it can be expected to play a role in meeting resident's passive recreation needs. The individual dwellings are overwhelmingly configured and oriented to provide acceptable amenity.
8. Future residents will benefit from the site's proximity to public transport, and the extensive services and facilities available within this established residential area.
9. Mr NG raised some concerns about the accuracy and adequacy of the plans that form part of the substituted set of amended plans. I posed a number of questions of the parties and where appropriate inaccuracies were corrected and otherwise explained in terms of how aspects of the proposal are represented in the plans. I am satisfied that I have sufficient information available to me to undertake my assessment of the proposal.

1. It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be set aside and a permit issued.
2. In deciding the conditions to be included on the permit I have had regard to the "without prejudice" conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from my reasons.

• Construction of a four-storey building above a basement car park comprising not more than 37 dwellings and alteration of access to a road in a Road Zone Category 1.

1. Before the development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and three (3) copies provided, substantially in accordance with the VCAT substituted plans (Job No. CKA16-029, Revision 4, all dated 5 June 2018, Sheets A2.2, A2.3, A2.4, A2.5, A2.6, A2.7, A2.8, A2.9, A2.10, A2.11, A2.12, A2.13, A2.14, A3.1, A3.2, A3.3, A3.4, A3.6, A4.2, A4.3, A4.4, A4.5 and A4.6, prepared by C.Kairouz Architects) but modified to show:

(a) A notation that natural timber (Materials reference "TB") is to be applied to the underside of all eaves and on balcony soffits;

(b) A notation that the external timber will be natural timber that is stained and regularly maintained to ensure the warm red/brown tones of the natural timber are preserved to the satisfaction of the Responsible Authority;

(c) Enlarged detail (including sections where appropriate) of all privacy screens, demonstrating that they are fixed and not more than 25% transparent;

(d) Deletion of the perforated metal material (marked as "PM") from all locations with a direct interface with the public realm and replacement with an alternative high quality material selected from the existing palette of materials and finishes;

(e) Enlarged detail of the external finish of all services cupboards, demonstrating that a high quality finish is achieved that is integrated with the balance of the development;

(f) The Façade Finishes Schedule amended to provide further details, including the type (brand/species), finish, profile, colour and size-format of all metal, cladding, brick and timber finishes;

(g) The provision of a sample board of the schedule of external materials and finishes. The Schedule must demonstrate the high quality of the finishes palette and their compatibility with those existing within the streetscape;

(h) The numbering of trees to be removed or retained amended to accord with the numbering adopted in the "Preliminary Arboricultural Report" prepared by Kylie May of John Patrick Pty Ltd, dated December 2016, appended to the Statement of Evidence prepared by John Patrick of John Patrick Landscape Architects Pty Ltd;

(i) The location of the street tree proposed to be removed in Dickens Street (described as "Tree 1" in the "Preliminary Arboricultural Report" prepared by Kylie May of John Patrick Pty Ltd, dated December 2016) on the Basement 1 and West Ground Floor plans and a notation that the cost of the removal and replacement of the street tree is to be met by the permit holder;

(j) Notations on all floor plans that Trees 21 and 22 (formerly described as Trees 7 and 8) are to be retained and protected in accordance with the endorsed Tree Management Plan required by the conditions in this permit;

(k) Any further modifications to the buildings and works required by the Tree Management Plan required by this Permit;

(l) Notations on the Basement 1 and Basement 2 plans that tandem car spaces will be allocated as a pair.

(m) The layout of the basement car park (levels 1, 2 and 3) must be generally in accordance with the layout depicted in Appendix D to the evidence statement of John Kiriakidis dated 02/07/18

1. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

1. All externally used stained natural timber must be regularly stained to maintain its good order and appearance to the satisfaction of the Responsible Authority.

1. Prior to the occupation of the dwellings, the redundant crossovers must be removed and wholly reinstated with kerb, channel, footpath and verge to the satisfaction of the Responsible Authority and at no cost to the Responsible Authority or VicRoads.

1. Concurrent with the submission of plans required by Condition 1, a Landscape Plan must be submitted to the satisfaction of the Responsible Authority. When the Landscape Plan is to the satisfaction of the Responsible Authority it will be endorsed and will form part of this Permit.

The Landscape Plan must be generally in accordance with the Landscape Plan submitted with the application but modified to show:

(a) Retention of Trees 21 and 22 (as described in the "Preliminary Arboricultural Report" prepared by Kylie May of John Patrick Pty Ltd, dated December 2016, appended to the Statement of Evidence prepared by John Patrick of John Patrick Landscape Architects Pty Ltd);

(b) Removal of Tree 1 (as described in the "Preliminary Arboricultural Report" prepared by Kylie May of John Patrick Pty Ltd, dated December 2016, appended to the Statement of Evidence prepared by John Patrick of John Patrick Landscape Architects Pty Ltd) and a notation that the cost of the removal and replacement of the street tree is to be met by the permit holder;

(c) Deletion of reference to the species of any replacement street tree planting required by this Permit and replacement with a notation that replacement street tree planting is to be undertaken to the satisfaction of the responsible authority;

(d) A survey (including botanical names) of all existing trees to be retained and of those to be removed. The intended status of the trees shown on the landscape plan must be consistent with that depicted on the development layout plan;

(e) Details of the surface finish of all pathways, paved areas and accessways, including a clear notation of whether pavers are to be laid on a sand or concrete base;

(f) A planting schedule of all proposed trees (all to have a minimum height of 2.0m when planted), shrubs and ground covers including botanical names, common names, pot sizes, sizes at maturity and the quantities of each plant;

(g) Landscaping and planting within all open areas of the site;

(h) Landscaping required by any other condition of this permit;

(i) A notation that all landscaped areas are to be irrigated by rainwater harvested and stored on-site, with mains back-up.

1. Landscaping as shown on the endorsed landscape plan/s must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.

1. All landscaping works shown on the endorsed landscape plan/s must be maintained and any dead, diseased or damaged plants replaced, all to the satisfaction of the Responsible Authority.

1. Concurrent with the submission of amended plans required by Condition 1, a Tree Management Plan must be submitted to and approved by the Responsible Authority. The Tree Management Plan must be prepared by a suitably qualified and experienced Arborist and must set out recommendations and requirements in relation to the management and maintenance of Trees 21 and 22 (as described in the "Preliminary Arboricultural Report" prepared by Kylie May of John Patrick Pty Ltd, dated December 2016, appended to the Statement of Evidence prepared by John Patrick of John Patrick Landscape Architects Pty Ltd) and submitted to the Responsible Authority. The Tree Management Plan must be approved by the Responsible Authority prior to the commencement of any works including demolition and levelling of the site. The Tree Management Plan must make specific recommendations in accordance with the Australian Standard AS4970: 2009 - Protection of Trees on Development Sites and detail the following to the satisfaction of the responsible authority ensuring that the tree remains healthy and viable during construction:
   • (a) A Tree Protection Plan drawn to scale that shows:
     1. Tree protection zones and structural root zones of all trees to be retained and preserved;
     2. All tree protection fenced off areas and areas where ground protection systems will be used;
     3. Details of any proposed pruning to the tree canopy, including a tracery map detailing the recommended extent of pruning;
     4. Details of the type/s of footings located within any tree protection zones;
     5. Details of any services to be located within the tree protection zones and a notation to state that all services will either be located outside of the tree protection zone, bored under the tree protection zone, or installed using hydro excavation under the supervision of the project arborist; and
     6. A notation to refer to the Tree Management Plan for specific detail on what actions are required within the Tree Protection Zone.
   • (b) Details of how the root system of any tree to be retained will be managed. This must detail any initial non-destructive trenching and pruning of any roots required to be undertaken by the project arborist.
   • (c) Specification that a suitable time must be arranged with Council's Arborist, who must be present to supervise any root excavation within the tree protection;
   • (d) Supervision timetable and certification of tree management activities required by the Project Arborist to the satisfaction of the responsible authority;
   • (e) All remedial pruning works that are required to be performed on the tree development of the site. The pruning comments must reference Australian Standards 4373:2007, Pruning of Amenity Trees and a detailed photographic diagram specifying what pruning will occur.

The recommendations contained in the approved Tree Management Plan must be implemented to the satisfaction of the Responsible Authority.

Contractors to be advised of trees to be retained

1. The owner and occupier of the site must ensure that, prior to the commencement of buildings and works, all contractors and tradespersons operating on the site are advised of the status of trees to be retained as detailed in the endorsed Tree Management Plan and are advised of any obligations in relation to the protection of those trees.

Regulation of activities in Tree Protection Area

1. No vehicular or pedestrian access, trenching or soil excavation is to occur within the Tree Protection Area without the prior written consent of the Responsible Authority. No storage or dumping of tools, equipment or waste is to occur within the Tree Protection Zone.

1. Prior to the commencement of the development, a fee for the reasonable costs of removal and replacement of Tree 1 (as described in the "Preliminary Arboricultural Report" prepared by Kylie May of John Patrick Pty Ltd, dated December 2016, appended to the Statement of Evidence prepared by John Patrick of John Patrick Landscape Architects Pty Ltd) including for the reduced amenity caused by the removal of the street tree and the reasonable establishment and maintenance costs for a period of two years from the planting of any replacement street tree, must be paid to the Responsible Authority. Removal of the street tree may only be undertaken by the Responsible Authority.

1. The site must be drained to the satisfaction of the Responsible Authority.

Driveways and car parking areas to be constructed

1. Before the use starts or any building is occupied, area/s set aside for car parking, access lanes and driveways shown on the endorsed plans must be:
   • (a) Constructed;
   • (b) Formed to such levels and properly drained so that they can be used in accordance with the endorsed plans;
   • (c) Surfaced with an all-weather seal coat or as otherwise required by other Conditions within this Permit; and
   • (d) Drained;

1. Any new vehicle crossover or modification to an existing vehicle crossover must be constructed to the satisfaction of the Responsible Authority.

1. All pipes (except down-pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view, to the satisfaction of the Responsible Authority.

1. Concurrent with the submission of any plans pursuant to Condition 1, an Environmentally Sustainable Design (ESD) Report that is to the satisfaction of the Responsible Authority must be prepared by a suitably qualified expert and submitted to the Responsible Authority for approval. The report must address ESD principles proposed for the site including, but not limited to, energy efficiency, storm-water collection (for re-use in garden irrigation and toilet flushing, with mains back-up) and waste and building materials. Any recommended changes to the building must be incorporated into the plans required by Condition 1. Once approved, such a plan must be implemented prior to the occupation of the dwellings to the satisfaction of the Responsible Authority.

1. Concurrent with the submission of any plans pursuant to Condition 1, a Waste Management Plan to the satisfaction of the responsible authority must be submitted to and approved by the Responsible Authority. Once satisfactory, such plan will be endorsed and must be implemented to the satisfaction of the Responsible Authority. The plan must provide the following details of a regular waste (including recyclables) collection service for the subject land including:
   • (a) the type/s and number of waste bins;
   • (b) screening of bins;
   • (c) type/size of trucks;
   • (d) frequency of waste collection;
   • (e) delivery of bins to waste collection points and retrieval of bins once collected;

1. Prior to the commencement of any site works, including demolition and excavation, a Construction Management Plan must be submitted to and endorsed by the Responsible Authority. No works are permitted to occur until the Plan has been endorsed by the Responsible Authority. Once endorsed, the construction management plan will form part of the permit and must be implemented to the satisfaction of the Responsible Authority. The plan must be prepared in accordance with Council's Construction Management Plan Template and provide details of the following:
   • (a) Hours for construction activity in accordance with any other condition of this permit;
   • (b) Measures to ensure construction workers, including contractors, are aware of and observe the requirements of the approved Tree Management Plan required by this Permit;
   • (c) Measures to control noise, dust, water and sediment laden runoff;
   • (d) Measures relating to removal of hazardous or dangerous material from the site, where applicable;
   • (e) A plan showing the location of parking areas for construction and sub-contractors' vehicles on and surrounding the site, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises. Any basement car park on the land must be made available for use by sub-constructors/tradespersons upon completion of such areas, without delay;
   • (f) A Traffic Management Plan showing truck routes to and from the site;
   • (g) Swept path analysis demonstrating the ability for trucks to enter and exit the site in a safe manner for the largest anticipated truck associated with the construction;
   • (h) A plan showing the location and design of a vehicle wash-down bay for construction vehicles on the site;
   • (i) Measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the construction management plan;
   • (j) Contact details of key construction site staff;
   • (k) A site plan showing the location of any site sheds, on-site amenities, building waste storage and the like, noting that Council does not support site sheds on Council road reserves; and
   • (l) Any other relevant matters, including VicRoads' requirements.

1. All construction activity associated with the approved development is to be limited to the following hours, unless with the prior written consent of the Responsible Authority:
   • Monday to Thursday: 7:00am to 6:30pm;
   • Friday: 7:00am to 5:00pm;
   • Saturday: 9:00am to 5:00pm;
   • Sunday & Public Holidays: No construction.

1. This Permit will expire if:
   • (a) The development does not start within two (2) years of the issue date of this Permit; or
   • (b) The development is not completed within four (4) years of the issue date of this Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before the permit expires or:

• Within six (6) months afterwards if the use or the development has not commenced; or
• Within twelve (12) months afterwards if the development has not been completed.

Council and the Victorian Civil and Administrative Tribunal are unable to approve requests outside of the relevant time frame.

[1] Following the conclusion of the hearing Amendment VC148 to all planning schemes was gazetted on 31 July 2018. The Amendment included a wide range of modifications to the Planning Scheme. I considered it appropriate to invite the parties, should they wish, to address the implications of Amendment VC148 to the planning scheme as they relate to this proceeding before I make my decision. The applicant for review made a submission to the effect that the Amendment is policy neutral as it applies to this site. Changes to Clause 52.06 of the planning scheme are however relevant. Under the changes to that Clause there is no longer a requirement to provide visitor car parking. Submissions received from objectors about car parking matters must now be considered by me in that context.

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

1. [3] After the preparation of the amended plans correspondence was received from one of the objector parties Mr Borland of 1 Ruskin Court on his own behalf and on behalf of the owner of 2 Ruskin Court and 1060 Toorak Road, withdrawing their objections to the application, subject to conditions. I was advised that the conditions sought are reflected in the amended plans.

[4] Clauses 11, 16, 21.05 and 22.05 in particular.

[5] Land zoned GRZ4 refers to "super sized lots" and residential land in commercial centres.

[6] Respect for neighbourhood character is however included as a purpose of the GRZ and is an objective of Clause 55.

[7] Michell v Boroondara CC [2014] VCAT 1381 and RW (Ashburton) Pty Ltd v Boroondara CC [2017] VCAT 1056.

To ensure that the height and setback of a building from a boundary respects the existing or

preferred neighbourhood character and limits the impact on the amenity of existing