Clause 34.02-1 to use land within a Business 2 Zone for a dwelling.

Clause 34.02-4 to construct a building and to construct or carry out works.

Clause 52.06 to reduce the standard level of car parking specified in the table to the Clause.

Clauses 11, 15, 16, 17, 18, 21, 22.03, 22.10, 52.06 and 65.

The land is a rectangular allotment of some 1002 square metres, with a width of 20.12 metres and a depth of 47.29 metres. The land abuts Canterbury Road to the south, and laneways to the west and south (rear). Beyond the laneway is a residential area further to the south.

The land presently supports a single storey building which contains a furniture auction premises. The rear of the site is relatively undeveloped.

Member Deidun inspected the site prior to the hearing, on 17 February 2012. Both Members inspected the site on the afternoon of 21 February 2012.

Abermore Pty Ltd v Boroondara CC [2012] VCAT 55

1. This is an application for a review of a decision of the Boroondara City Council to refuse a permit for the use and development of the land at 619-623 Canterbury Road, Surrey Hills with a five storey building comprising offices and shops. The permit application also seeks a reduction in the standard car parking provision specified in the table to Clause 52.06 of the Boroondara Planning Scheme.
2. Council refused the grant of a permit based on grounds relating solely to the proposed built form. In particular the Council was concerned about the setback of the upper levels to Canterbury Road and the extent of articulation and setbacks to the rear elevation. In relation to this later issue, Council was concerned about the built form impacts to the residential interface to the north of the review site.
3. In support of their concerns in relation to the built form outcomes on the site, the Council relied heavily on their Activity Centres Strategy, which has been adopted by Council. However this document has not as yet been a part of a planning scheme amendment that has been the subject of authorisation or exhibition.
4. Statements of grounds were initially lodged by two respondents, though prior to the hearing the Applicant reached an agreement with the residents to the immediate north of the review site. Day 1 of the hearing was attended by a respondent concerned with the impact of the proposal on the development potential of the adjoining property to the east. This adjoining property at 629 Canterbury Road Surrey Hills was the subject of a recent tribunal decision which did not result in the grant of a permit[2]. This respondent did not pursue other matters raised in their Statement of grounds, including those relating to the proposed quantum of car parking spaces.
5. None of the parties before us contended that the policy or physical context of the site would argue against the general form of development being contemplated. As these issues are not in dispute, we will not pursue them further.
6. An oral decision with reasons was handed down at the conclusion of the hearing. The following is an edited version of those oral reasons.
7. The main issues for contention therefore were:
   • (a) What is the correct amount of weight to be given to Council's Activity Centres Strategy?
   • (b) That there is a strong range of positive features of proposal.
   • (c) Dealing with more challenging aspects of proposal - do any of these aspects point to a refusal or modification of proposal?

1. The proposal is for use of part of land for dwellings, construction of a 5 storey building containing 21 dwellings and two offices and car parking dispensation. The site has an area of about 1000 sqm and is currently improved by a low rise, fairly non-descript commercial building. The subject land lies on the north-east corner of Canterbury Road and Peppercorn Place, and also has a laneway running across the rear of the site in the form of Windsor Lane. Hence it only has one direct private interface, to a property with the address of 629 Canterbury Road to the east. The area further north again features established dwellings and the Surrey Hills railway station.
2. This section of Canterbury Road is either within or near to a neighbourhood activity centre and features shops/offices/commercial uses. Compared to the nearby Union Road shopping strip, this section of Canterbury Road has a more eclectic and hard edge streetscape character, including some existing multi-storey quite prominent buildings.
3. In relation to the proposal, two objections were received and Council has issued a Notice of Refusal to Grant a Permit. In brief, Council's main concerns related to the impacts of the proposal on the streetscape and over-development issues, with particular reference to the Activity Centres Strategy which Council has adopted but which is not yet part of the Planning Scheme.
4. This refusal has been appealed to the Tribunal. Following an unsuccessful mediation, the proceeding was set down for a 3 day hearing over 20-22 February 2012. In relation to two objectors who were parties to the appeal, one objection was conditionally withdrawn in the lead up to the hearing. This was the objection from the rear neighbour, who own the residential properties on the opposite or north side at 5-7 Windsor Lane.
5. Over the first hearing day on 20 February, we by consent allowed the revised plans pre-circulated by the Applicant to be substituted as the new application plans. We refer here to the revised plans circulated under cover of the Hansens letter dated 10 January 2012.
6. On the first day we heard submissions from Mr Song on behalf of Council, from Mr Gobbo (assisted by Mr O'Farrell) on behalf of the Permit Applicant and Mr Hutton appeared in person. Mr Hutton owns the abutting No. 629 property to the east. On the second hearing day Mr Hutton could not appear but the hearing process was completed by lunchtime. Apart from submissions, over the hearing we heard expert planning evidence from Mr Iles and expert design evidence from Mr Czarny. There was a consensus that the expert traffic witness Mr Fairlie did not need to appear, since his evidence was largely uncontentious, so we have taken his report "as read".
7. On the afternoon of the 2nd hearing day, we together carried out an unaccompanied inspection of the site and surrounds.
8. We will now turn to the key issues as earlier identified.

What is the correct amount of weight to be given to Council's Activity Centres Strategy (ACS)?

1. We need to properly understand the history and planning status of the ACS document.
2. The ACS was adopted by Council in June 2011. The ACS provides that this section of Canterbury Road is an area defined as the Canterbury Road Enterprise Corridor. The site is located at the eastern end of this Corridor area. Key features of the ACS for our purposes are that it sets out the:

1. preferred treatment of the frontage of this type of new building to Canterbury Road; 2. preferred height and number of stories of this type of new building above natural ground level. In particular, where a slope is involved, the ACS preference is that this type of new building be no higher than four stories and that its maximum height remain below 15.5 metres above natural ground level ie the preference is that both requirements should be met; and

1. preferred treatment and setbacks to the rear residential interface.
2. Mr Song advised us that after Council adopted the ACS in June 2011, it was then sent to the Planning Minister for authorisation. Whilst some further information has been requested and then provided, the ACS otherwise is still awaiting this authorisation.
3. Given that the ACS has not even commenced going through the panel review process and obviously is not part of the Planning Scheme, it is clear that the ACS cannot be regarded as a "seriously entertained planning proposal". This can be contrasted for example with the "Chapel Vision" document in the Stonnington municipality, which has the status of a Reference Document under the Stonnington Planning Scheme.
4. On the other hand, we acknowledge that the ACS document was discussed by the Tribunal in the recent decision involving property next door at 629 Canterbury Road. In refusing a proposed four storey residential building on that site, the Tribunal indicated that it was appropriate that it give some weight to the ACS document.
5. Indeed, even the Applicant's advocate in our case Mr Gobbo conceded that it is appropriate for this division of the Tribunal to place a limited degree of weight on the ACS.
6. In summary, we accept that it is appropriate that we place a modest degree of weight on the ACS document, in exercising our discretion. In particular, the ACS document provides some assistance at least in terms of highlighting some of the key design issues that arise in this type of proposal and provides one approach to how to deal with them.
7. However we say "modest" given that:
   1. the ACS has not even got to the Ministerial authorisation stage; and
   2. hence we do not know how it might be received by a panel, or for that matter the Planning Minister.
8. Whilst meaning no criticism of Mr Song's advocacy, we also think Council has left itself open to the criticism that it has cherry-picked those aspects of the ACS which suit its case. We say this because Council continued to challenge the proposed rear setback treatment of the new building, even where this treatment easily meets the relevant ACS benchmark.

1. There are a number of significant factors that weigh heavily in favour of the grant of a permit for the proposed development.
2. Firstly, we accept that there is significant strategic planning support for the proposal, relying on planning evidence of Mr Iles, in that:

1. The site is located within a Business 2 Zone, a locality in which a mix of uses and thus built forms are anticipated; 2. The site either lies within or abuts the Surrey Hills Neighbourhood Activity Centre;

1. Whilst the proposal clearly does not achieve full compliance with the preferred outcome in the ACS document, even that document envisages there being a quite large building of up to 4 stories on this type of site;

1. The site has excellent access to local public transport, shops and a range of services and facilities.
2. Secondly, we accept that the site itself has some very favourable re-development features.

1. It has a road or laneway on three sides, and only one private abuttal to the east; 2. The rear laneway in itself creates a buffer to the nearest residential neighbour to the north;

1. The slope of the site and laneway at the rear facilitates convenient access from the rear to a basement level of car parking;

1. There are no heritage controls on the site, and no vegetation removal issues; 2. The site has the benefit that there are already other two to three storey fairly prominent buildings in this locality. In addition this section of Canterbury Road in our view already has a rather eclectic and hard edge character built form, which creates more flexibility for new infill built form.
2. Given these very favourable re-development features, the significant strategic planning support for the proposal and this greater flexibility for new built form, we consider that (putting to one side for the moment the role of the ACS) the site can, with an appropriate design, accommodate a five storey built form.
3. Thirdly, it is a major plus for proposal that the rear neighbours have conditionally withdrawn their objection. Clearly the northern interface is the most sensitive interface. Whilst it is true that the Tribunal should not just rubber stamp any settlement reached with a neighbour, it is fair for the Tribunal to give such a settlement substantial weight.
4. Fourthly, in terms of the quality of the architecture put forward, we are satisfied that this is a high quality design, relying in part on the urban design evidence of Mr Czarny. We agree with Mr Czarny that a very positive feature of the design is that the building is well articulated in terms of longer term public views of the new building available not only at the front, but with its side treatment to the west and also at the rear.
5. With respect to its eastern interface to the property at 629 Canterbury Road, we agree that there are strong indications that this adjoining property will itself be re-developed in the short-medium term. This re-development would largely block out views to the eastern side of the proposed building before us. However even if this was not the case, we accept that the proposed eastern elevation includes some different treatments of different areas of this elevation. The result is the provision of an appropriate level of visual interest to this eastern elevation for so long as the property at 629 Canterbury Road remains undeveloped.
6. We are comfortable with the design approach taken with the proposed front elevation, i.e. a two storey wall on the front boundary, then the third and fourth levels stepping in. We see this is an appropriate graduated approach.
7. We consider the changes made in the revised plans to be positive and we are satisfied that the proposed contemporary look of the building and mix of materials will give this locality a visual lift.
8. Finally, we have had the benefit of expert evidence from three experienced witnesses. The only expert evidence called in this proceeding has been the three experts called by the Applicant. We accept they are all very experienced witnesses and we regard their evidence as credible and helpful to the Tribunal.

1. There were relatively few criticisms of the proposed development from Council and Mr Hutton, which we address individually below.

Implications of non-compliance of proposal with ACS preferred outcomes.

1. It was common ground between the parties that the proposal is marginally higher than the ACS preferred height limit of 15.5 metres above natural ground level. In addition the rear bottom level basement area adds a fifth level to the proposal, where the ACS prefers a maximum of four levels.
2. There was also debate regarding the ACS preference that the third level front wall extend to the front boundary. By contrast, the proposed front elevation has this third level wall stepped in from the street edge.
3. In summary, we see little turning on these areas of non-compliance with the ACS preferred design outcomes. For the reasons already mentioned, we consider that we can give only modest weight per se to the ACS document.
4. Even beyond that, it is clear that the areas of non-compliance are relatively minor and to some extent flow from the substantially sloping nature of the site. In particular, whilst it is true that the rear basement introduces a fifth level to the building, it is also the case that the building's main presentation will be to Canterbury Road, where it will very much present as having four stories.

Does the proposed building adequately provide for the likely re-development of the No. 629 abutting property to the east?

1. We endorse the view of Mr Czarny that the proposal is acceptable in terms of how its eastern elevation allows for the likely re-development of the property abutting to the east at 629 Canterbury Road.
2. We refer here in particular to the eastern elevation involving a mixture of essentially blank walls extending to the boundary, together with light-shaft features. These blank walls provide the basis for a new multi-storey building at 629 Canterbury Road also extending to the common boundary, and having the opportunity to create matching light shaft areas.
3. Where Mr Hutton submitted that the proposal before us should have its side walls substantially set in from the site boundaries, we consider with respect that this is a misguided line of thinking that was rejected by the Tribunal in the recent decision[3] involving 629 Canterbury Road. We consider that building out to the side boundaries but with appropriate provision for light shafts is the typical and appropriate approach. That is particularly the case in this type of situation where two sites of the size/type in question here are side-by-side and both in the process of being redeveloped with multi-storey buildings.
4. In terms of privacy issues between the two buildings, basically we see the proposal as having adequately addressed this issue. However in relation to the concept plan Mr Gobbo tabled on the second hearing day which shows a re-organisation of the balcony treatment of the new unit 5, we agree this is the better approach and will be incorporating same.

Does the proposal show adequate respect for the residential interface to the north?

1. We are satisfied that the proposal has very positively responded to the northern interface. The ground level northern or rear setback is 7.1 metres from the rear boundary measured from the balcony (or 8.6 metres measured to the rear external wall), with a marginally greater setback for the upper levels. This needs to be considered together with the rear laneway width being about 6 metres, so the combined setback to the nearest northern residential building is over 13 metres.
2. This is in contrast with the proposal for 629 Canterbury Road which the Tribunal recently refused, which would have placed substantial built form extending very deep into that lot. We note that the Abermore decision suggests that the rear setback should be six metres at least for the upper levels - the proposal before us achieves that in spades, because even the ground level setback is 7.1 metres. We are also satisfied that the proposed use of materials and articulation for the rear elevation is appropriate and that the landscaping opportunity at the rear will somewhat soften views of at least the lower section of the new building. Whilst the top rear levels of the building will probably be visible from Windsor Lane, we accept these will be more distant and acceptable views rather than being overbearing.
3. It is also appropriate as we have mentioned that we give some weight to the reality that the rear residential neighbour has conditionally withdrawn their opposition to this Application for Review.

1. We are satisfied that the new dwellings will offer a good level of internal amenity.
2. With respect to parking and traffic issues, the situation here seems fairly straight forward and we accept that the necessary car parking dispensation is appropriate. We note that neither Council nor Mr Hutton raised any traffic and parking concerns in their presentations at the hearing.
3. In relation to the rear landscaping treatment, there was some discussion at the hearing whether some or all of the open rear parking spaces should be converted into additional landscaping. We see a good compromise here as being that one of the two parking spaces in the north-west corner be converted into additional landscaping.
4. During the discussion of permit conditions at the end of the hearing, some other matters of design detail were discussed. The final version of the permit conditions will reflect our final position on these points.

1. In conclusion, we consider this to be a good quality development that will make a positive contribution to the streetscape of this rather hard edge main road location. We are satisfied that the strong positive features of the proposal vastly outweigh the minor concerns/issues we have discussed above, such that the proposal will very much create a net community benefit and be acceptable.

Use of the land for dwellings, development of the land with a five storey building containing dwellings and offices, and a reduction of the standard car parking requirement set out in Clause 52.06 of the Boroondara Planning Scheme, in accordance with the endorsed plans.

1. Before the development starts, amended plans must be submitted to and endorsed by the Responsible Authority. The plans must be drawn to scale with dimensions and three (3) copies provided. When the plans are endorsed they will then form part of the permit. The plans must be substantially in accordance with the substituted plans but modified to show:

1. Deletion of visitor space 2 and reorientation of visitor space 1 so that it is accessed via Windsor Lane and located immediately adjacent to the access ramp to the Basement 2 level; 2. Dedication of the area to the east of the reorientated visitor space 1 to additional landscaping;

1. The allocation of the remaining 39 car parking spaces within the development to be to the satisfaction of the responsible authority;

1. All habitable room windows within dwellings at the first, second and third floors facing Canterbury Road treated with double glazing; 2. Provision of a modified internal layout for Dwelling 5 that results in the main living areas and balcony having an outlook over Canterbury Road, generally in accordance with the relevant Dwelling 5 concept plan tabled at the Tribunal hearing of P2914/2011 on 21 February 2012; 3. Changes to the elevations as a consequence of Condition 1(d) above. 4. Setback the pedestrian door leading from Peppercorn Place further into the basement to provide an appropriate distance triangle on the southern side of the ramp in accordance with Clause 3.2.4(b) of AS/NZS 2890.1:2004; 5. A notation on the plans that no objects or advertising signs may be located within a splay measuring 2.5m (along Peppercorn Place) by 2.0m (Along Canterbury Road) in the ground level of the proposed office/showroom tenancy; 6. Provision of an intercom, vehicle loop or other measure which will ensure that visitors can enter and exit the basement level car parking area; 7. Additional notations on the north and west elevations to ensure that the material surrounding part of the first floor (currently noted as selected metal wall cladding) is to be the patterned or artistic metallic screen finish similar to that illustrated in the illustrations prepared by Paul Shaw & Associates and dated 19 & 21 July 2011; 8. A requirement that plans show that a person could not see directly (measured at a height of 1.7m above FFL) into the room on the first floor of 7 Windsor Lane from any balcony of the development;.
2. The layout and uses 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 (unless the Boroondara Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.
3. All buildings and works must be maintained in good order and appearance to the satisfaction of the Responsible Authority.
4. Prior to the commencement of works associated with the development hereby approved, a landscape plan prepared by a landscape architect or suitably qualified and experienced person or firm incorporating:

1. an accurate survey of all existing vegetation to be removed and retained and other natural features; 2. the area(s) set aside for landscaping;

1. a schedule of all proposed planting, including within planter boxes, which will include the location, number, size at the time of planting, height and spread at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;

1. paving, retaining walls and other landscape works including areas of cut and fill and finished site levels;

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.

1. Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.
2. All landscaping works shown on the endorsed landscape plans must be maintained and any dead, diseased or damaged plant replaced, all to the satisfaction of the Responsible Authority.
3. The site must be drained to the satisfaction of the Responsible Authority.
4. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Council's drains or watercourses during and after development, to the satisfaction of the Responsible Authority.
5. Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose, to the satisfaction of the Responsible Authority.
6. Before the use starts or any building is occupied, details of any car park control equipment (controlling access to and egress from the internal/basement car park/s) must be submitted to and approved in writing by the Responsible Authority. These details must include a car park control device which can be accessed by visitors to the development including clear instructions on how to operate any security system.
7. Any new vehicle crossover or modification to an existing vehicle crossover must be constructed to the satisfaction of the Responsible Authority**.**
8. All disused or redundant vehicle crossovers must be removed and the area reinstated with footpath, naturestrip, kerb and channel to the satisfaction of the Responsible Authority.
9. The external faces of walls on or facing boundaries are to be cleaned and finished to the same standard as such walls within the development site to the satisfaction of the Responsible Authority.
10. All external lighting must be designed, baffled and located so as to prevent light from the site causing any unreasonable impacts on the locality, to the satisfaction of the Responsible Authority.
11. All security alarms or similar devices installed on the land must be of a silent type in accordance with any current standards published by Standards Australia International Ltd and must be connected to a registered security service, to the satisfaction of the Responsible Authority.
12. 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.
13. No plant, equipment, services or architectural features other than those shown on the endorsed plan/s are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.
14. All waste material not required for further on-site processing must be regularly removed from the site. All vehicles removing waste must have fully secured and contained loads so that no wastes are spilled or dust or odour is created, to satisfaction of the Responsible Authority.
15. All bins and receptacles used for the collection and storage of solid waste, recyclables and other wastes must be kept in a designated area, to the satisfaction of the Responsible Authority. This storage area must be:

1. Properly paved and drained to a legal point of discharge; 2. Screened from view with a suitably designed enclosure;

1. Maintained in a clean and tidy condition free from offensive odours

1. Collection of waste must be conducted so as not to cause any unreasonable disturbance to nearby residential properties and may only take place during the following times:

1. Monday to Friday: 7:00am to 10:00pm 2. Saturday & Public Holidays: 9:00am to 10:00pm

1. Prior to the commencement of works associated with the development hereby approved, a waste management plan must be prepared to the satisfaction of 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 private waste (including recyclables) collection service for the subject land including:

1. Internal arrangements for each units and floor; 2. Bin storage and bin handling;

1. Compliance with EPA noise guidelines; 2. Review volumes of waste generation in accordance with Sustainability Victoria Guidelines for Multi-unit developments,

1. Collection of waste must be conducted so as not to cause any disturbance to nearby residential properties and may only occur between the hours of 7:00am to 7:00pm Monday to Friday to the satisfaction of the Responsible Authority.
2. Prior to the commencement of works associated with the development hereby approved, an Environmentally Sustainable Design (ESD) Report which 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, stormwater collection and re-use on the site 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 development to the satisfaction of the Responsible Authority
3. Prior to the commencement of works associated with the development hereby approved, 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 provide details of the following:

1. Hours for construction activity in accordance with any other condition of this permit; 2. Measures to control noise, dust, water and sediment laden runoff;

1. The location and design of a vehicle washdown bay for construction vehicles on the site;

1. The location of parking areas for construction and sub-contractors' vehicles on the site, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises and traffic flows. Any basement carpark on the land must be made available for use by sub-constructors/tradespersons upon completion of such areas, without delay; 2. Measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the construction management plan; 3. Contact details of key construction site staff; 4. The location of any site sheds and the like; and 5. Any other relevant matters.
2. All works including earthworks, demolition and 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:

1. Monday to Thursday: 7:00am to 7:00pm 2. Friday: 7.00am to 5.00pm

1. Sunday & Public Holidays: No construction
2. The amenity of the area must not be adversely affected by the use or development as a result of:

1. transport of materials, goods or commodities to or from the land; 2. appearance of any building, works, stored goods or materials;

1. emission of noise, artificial light, vibration, smell, fumes, smoke, steam, soot, ash, dust, waste water, waste products or oil; or

1. This permit will expire if:
   1. The development and use do not start within two (2) years of the issue date of this permit; or
   2. 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 three (3) months afterwards.

[1] We have considered all submissions presented by the parties although we do not recite all of the contents in these reasons.

[2] Abermore Pty Ltd v Boroondara CC [2012] VCAT 55.

[3] Abermore Pty Ltd v Boroondara CC [2012] VCAT 55.