AusGroup Property Pty Ltd v Stonnington CC [2011] VCAT 672

AusGroup Property Pty Ltd v Stonnington CC [2011] VCAT 672 | Case summary | Zoe

[36]

The review site is the eastern edge of commercial uses that extend along Toorak Road from Chapel Street. The review site and land to the west to Tivoli Road are developed with two storey shops. Land facing the north side of Toorak Road, west of Tivoli Road is used for a petrol filling station and a mix of offices, shops and apartment buildings. Land on the south side of Toorak Road is also used for a mix of shops and offices on the ground floor and apartments above. The South Yarra Public Library is located on the south side of Toorak Road, opposite the review site.
The area to the north of the review site is a higher density residential area. Redeveloped several decades ago, it comprises many blocks of flats of three to six storeys. Several buildings rise to ten storeys. A three storey block of flats abuts the north side of the review site. Notably, the flats "turn their back" to the review site. The south elevation of the flats comprises a bland, sheer three storey wall punctuated by open-air walkways, and doors to the apartments and windows to the bathrooms and kitchens. The living areas of the apartments face north, away from the review site.
Rockley Gardens adjoins to the east of the review site. The Gardens are an attractive well-landscaped space providing relief from the relatively intense urban built form and activities in the area. The Gardens are bordered by buildings that range in size from two storeys on the review site to ten storeys near the northern boundary.
Six trees in the Gardens abut the west boundary of the review site. A large plane tree is located in the southwest corner of the Gardens and its canopy extends over the review site. Other trees close to the boundary of the review site include a bush cherry, a plane tree, two glossy privet, and a melaleuca. Most are in good to fair condition.
The No. 8 tram route operates along Toorak Road. South Yarra train station is a 7 to 10 minute walk to the west of Chapel Street. Both public transport modes provide convenient links to Melbourne's central areas. The Yarra River and its recreation trails are easily accessed from the north end of Tivoli Road.
From a broad strategic viewpoint, we concur with the parties that the site is well located to accommodate more intensive land uses and development as it is:
- within the Prahran/South Yarra Principal Activity Centre (PAC)
- proximate to trams, trains and many facilities and opportunities in the PAC and inner city
- within walking and cycling distance of regional recreation trails along the Yarra River
- well located to access a wide range of higher order education, training and employment opportunities
- within walking distance of many leisure, dining and entertainment opportunities within the PAC
- close to various community facilities including local parks, schools and library
- unconstrained by the presence of special characteristics that might limit development opportunities such as heritage, steep slope, remnant vegetation
- not abutting highly sensitive interfaces such as multiple rear open spaces to dwellings or habitable rooms
- abutting a main road that has relatively high levels of traffic and public transport
- a corner site with a frontage to Toorak Road and a frontage to Rockley Gardens.
We concur with the parties the existing built form has no features or character that constrain development. It is a redevelopment opportunity. The wider area is undergoing a substantial transformation, particularly to the west (around South Yarra train station). We now turn to planning policy for guidance in respect of how well this proposal realises the site's strategic opportunities.

[45]

We are persuaded that whilst the proposal is approximately 6 metres higher than the preferred height, and has lesser setbacks, it would be generally consistent with the planning policy framework. We think the matter of heights and setbacks should form part of our considerations, but these are to be balanced with the many other policy directions set out in the planning scheme.
We conclude this development complies with the strategic directions of the entirety of planning policy. It is clear to us the Prahran/South Yarra Principal Activity Centre is identified as the preferred location for change, and compared to most places, the extent of change is to be substantial. This is becoming evident when one visits Toorak Road and Chapel Street and observes the now numerous multi storey buildings completed and under construction. It is notable many of these buildings exceed 10 storeys. Prahran and South Yarra are being transformed from a former niche retail shopping centre bounded by older industrial uses to an intensive high rise precinct similar to Docklands, Southbank and St Kilda Road. We think the current transformation largely arises from State and local planning policies.
This transformation provides a context to assess 'moderate change'. In our view, moderate change in this area can be seen to include buildings that might be regarded as substantial in another context. However, a proposal such as this, being eight storeys, is modest in form and scale relative to the extent of development in the Forrest Hill precinct and other places identified for substantial change.
We think the context of the site is significant in our deliberations. Whilst it is not identified in policy as a gateway or landmark site in Chapel Vision or local policy, we think it has that role. It is located on an incline as one approaches Chapel Street, and it identifies a place of transition from residential uses and built form to the commercial centre. It marks a place of transition from one land use and built form to another. Located next to Rockley Gardens and being highly visible from Toorak Road, any building in this location will be recognised as a place of transition.
We also think the site is part of Toorak Road and quite distinct from the residential precinct to the north, centred on Tivoli Road. The unnamed laneway on the north side of the review site is a transition point. The proposed uses and built form on the review site take their reference points and cues from Toorak Road rather than from the north. We think the proposed built form would fit well into the merging form along this part of Toorak Road. It retains the fine grain rhythm of the existing shops to the west, and the larger built form is consistent with the height and massing of the emerging built form of this area. We think this eight storey building would not look out of place, be jarring or incongruous. Indeed, we think it will fit very well into the emerging, transformed built form of this precinct.
Planning policies strongly encourage the continued provision of intensive residential development within this principal activity centre. Importantly considerations of existing character and preferred neighbourhood character that are often a key determinant of the suitability of new development in smaller centres do not play a role. In respect of adjoining and nearby residential use and development, the planning framework requires new development in a PAC to not impose unreasonable conflicts on its neighbours. We examine its relationships with its neighbours below, but in general terms we are satisfied it would be a good neighbour to Rockley Gardens, Toorak Road and the apartment buildings to the north.
Mr Townshend noted the Design and Development Overlay and clause 22.19 to be interim controls. They are still to be reviewed through a formal amendment process that may lead to some changes. He thought it reasonable for responsible authorities to resist applying interim controls rigidly and to be guided by strategic and design principles rather than prescriptive requirements within the interim controls.
We concur with this approach and consider it to be consistent with the explanatory report prepared for amendment C78 that introduced the controls. The explanatory report notes that suitable heights are not yet refined to address existing context or preferred character, and would be the subject of further strategic work. The proper approach is to assess a proposal against the design objectives and its emerging built form context and to give more limited weight to an untested preferred maximum building height.
The planning policy framework includes a Land subject to inundation overlay. Melbourne Water had no objection to the proposal subject to it complying with various design requirements. The design requirements can be expressed as conditions on a planning permit. Mr Townshend said the amended plans comply with Melbourne Water's requirements, and the possible inundation of the land has been addressed.
We are satisfied the proposal is consistent with the broad directions of planning policy. Policies strongly encourage new development in this precinct to provide a more diverse housing stock proximate to infrastructure and to form part of an area undergoing substantial change.
We turn below to our assessment of detailed design matters including the building's various interfaces, its arrangements for parking, loading and waste, and its amenity for future residents.

[46]

The history of this site includes various unrealised development proposals. The distinguishing features of the site include the shape of the site, its location hard against the northeast corner of the PAC, the garden interface, and adjacency of the Tivoli Road residential area. The proposal before us displays a new approach to both its location in the activity centre and to its immediate interfaces.
Council, notwithstanding its position regarding height and setbacks, agreed with the permit applicant that the substituted plans achieve a high standard of architecture. Professor McBride's evidence was that the building 'through its form and articulation will enhance the local character, the sense of place and the immediate public realm of its context'. Mr Sheppard considered that the proposal 'will set a new standard of design excellence for this precinct and create a memorable marker at the entry to the activity centre'. We agree. We also consider that the careful integration of landscape into the architecture contributes greatly to the success of the design in the context of the adjacent Rockley Gardens.
A fundamental component of the proposed design is the integration of landscape and architecture. The architect described the idea as seeking to 'enhance the green qualities of Toorak Road and to approach the concept of landscape design and urban greening by merging the architectural design of the building with a sustainable approach to landscape design'. Mr Sheppard's evidence was that this response softened the impact of the built form on the landscape character of the Gardens. It also served to reinforce the residential character of the proposed building.
Mr Jacques' expert landscape evidence identified the inclusion in the building of a 'green wall' to the foyer, climbing gardens on the east façade, hanging gardens at the upper levels and planting to the communal roof garden. He described in detail the infrastructure required, the species selection and ongoing maintenance of the landscape. Under cross-examination he reiterated the criteria for successful implementation of the scheme. Modelling had indicated that there would be a minor shortfall in rainwater collected on site for irrigation between January and April. It is proposed that ongoing maintenance is to be the responsibility of the Owners Corporation.
We think that the integrated landscape is an exciting and worthwhile concept, one which is becoming more common across Melbourne. The Tribunal found Mr Jacques a credible witness. However, our inspections of the installations to which we were directed indicated that they are not universally successful, for, no doubt, a number of reasons. We consider permit conditions requiring an ongoing involvement of the building designers in addition to the implementation of a realistic maintenance regime will assist in ensuring the success of the landscape proposal.
However, we are required to consider not just the design quality of the proposal, but also whether the site can absorb a building of this height and form, and whether the impact of the development on Toorak Road, Rockley Gardens and the Tivoli Road residential area is acceptable. This we now do.

[49]

The proposed building would present a new and substantial interface to Rockley Gardens. The new two storey shops would extend 20.5 metres along to the boundary with the Gardens. North of the shops, five dwellings face the Gardens, set back 1.68 metres from the boundary.
The eastern leg of level one includes the upper storey of the shops with a large screen at the southeast corner. Behind the shops, the proposed apartments are again set back 1.68 metres from the boundary. At level two, the building is pulled back 3.6 metres from the boundary with balconies projecting into the setback. Levels three to five overhang level two by 0.6 metre. At levels six and seven, the proposed set back is 6 metres. Three terraces project into the setback at level seven. The height of the building set back 3 metres is around 19 metres; at the 6 metre setback it is around 25 metres.
Council considered that the eastern façade of the building would dominate the Gardens. It sought a façade that was consistent with Council's urban design advice with a preferred height of six storeys, a setback of 3 metres at the ground level increasing to 6 metres at level three. In contrast, Mr Sheppard's evidence was that the proposed eight storey building form was appropriate as it would be consistent with prevailing built forms around the Gardens. It was neither significantly taller nor shorter than the current edges. It would add to the sense of enclosure of the Gardens, but he did not consider this to be a negative. Rather, he agreed with the evidence of Professor McBride that it would draw attention to the valued low form of the Library on the south side of Toorak Road. Furthermore, his evidence was that distinct compositional layering of the building into its podium, middle and upper form would successfully break up the mass of its east façade.
We think the interface to Rockley Gardens respects the Gardens. This is an inner city park with a strong urban edge. The buildings to the east and north of it are up to seven storeys and a ten storey building is evident somewhat further north in Rockley Road. Whilst the buildings are set back from their common boundaries in the order of 3 metres, this does not diminish the robust and vertical edge of the Gardens. We consider that the visual bulk of the proposed eastern façade is further diminished by various architectural and landscape devices. The generous landscaping treatment proposed is complemented at ground and first floor levels with a substantial timber pergola-like framework for climbing plants. Mid levels have metal frames hung off the façade and there is timber battening to the top two levels. On these there is to be a mix of climbing plants rising from planters and hanging gardens 'falling' from the mid level planters.
The façade to Rockley Gardens would comprise a highly articulated and variable presence, perceived as a collection of smaller elements rather than a single mass. In terms of the proposed height of the building, looking from the Gardens, we are not persuaded that by deleting a level and pushing the building away from this edge by an additional metre and a half at ground and first floor level will reduce the visual bulk to any significant degree.
Furthermore, we noted on our inspection that, from most viewpoints in the park, the mass of the building would be highly screened by the extensive canopy vegetation within the park. From east of Rockley Road the building would be largely unseen from within Rockley Gardens. It would become visible from approximately the mid point in the western part of Rockley Gardens. The view from this closer proximity to the site is also extensively screened by the large plane tree close to Toorak Road. More of the building would be visible from the northern parts of the Gardens. However, as discussed above, we think the mass and scale of the building is diminished by its articulation and it will appear less bulky than many of the other buildings which adjoin the Gardens.
The dwellings on the east façade of the proposed building face Rockley Gardens. There would be many people providing casual surveillance over the Gardens. We think this is a good thing. It is entirely consistent with the treatment of the other parts of the Gardens which are overlooked by apartments. Given the location of the public toilets near the west boundary of the Gardens, extensive perimeter plantings and the substantial pedestrian traffic through the Gardens, we think this casual surveillance would be welcomed by the wider community.
In summary, we have concluded that this combination of setbacks, architectural features and landscaping of the eastern façade is not only an acceptable outcome, but will also positively enhance Rockley Gardens.

[53]

Council considered that another adverse impact from an eight storey development on this site is possible additional overshadowing, particularly in the afternoon. The scheme provides that new buildings and works minimise overshadowing of public open space at the winter solstice.[6] The amended plans show the building would indeed cast shadow over the adjoining Rockley Gardens in the mid afternoon on the winter solstice. The shadow would extend from the northern edge of the building extending diagonally southeast across the park to a point approximately two-thirds along the frontage to Toorak Road (between the west boundary and Rockley Road). This overshadowing would cover the diagonal footpath that appears to be extensively used through the daytime.
It is our view that the proper approach to assessing shadow is to take into account the strategic context of the site. Comparing the shadows from this proposal to existing shadows simply does not recognise that Chapel Vision and the interim DDO controls encourage development of up to 19 metres on this site. We think Council must have considered the likely overshadowing that would result from buildings of its preferred height and deemed that, when balanced against other outcomes, some additional overshadowing is acceptable. We also note the scheme provisions require overshadowing to be "minimised" rather than a more onerous benchmark.
Within this strategic context, we think we should compare the likely shadows cast by this proposal with those cast from development contemplated under Chapel Vision and the interim Design and Development Overlay. To put it another way, we think the extent of overshadowing should be compared to the shadows cast by the building that meets Council's proposed building envelope of six storeys, set back 3 metres from the eastern boundary and 6 metres at the upper levels.
Mr Townshend provided the Tribunal with shadow diagrams showing the shadows cast by the proposed building and also those cast by a building designed in accordance with Council's preferred heights and setbacks.
These shadow diagrams indicate that at 1.00pm, the proposed building would cast a slightly larger shadow than Council's preferred option. The additional shadow is to the west side of the diagonal footpath and almost entirely below the plane tree. By 3.00pm, the shadow cast by the proposed building extends several metres eastward along Toorak Road.
Although the proposed building would noticeably increase overshadowing of Rockley Gardens in respect to the existing built form, compared to a building constructed strictly in accordance with the preferred heights and setbacks in the planning scheme and preferred by council, overshadowing of Rockley Gardens would increase only marginally.
We consider the limited amount of additional overshadowing is acceptable given the strategic context of the site. The shadows are located near the southern boundary of the Gardens. The majority of the Gardens remain free of shadow. The Gardens west of Rockley Road remain available for people to walk or sit within the gardens and enjoy shade or sun as they choose. The usefulness of the western edge of the gardens close to the review site as a place to sit in the sun is limited by the presence of large trees and a public toilet. We think most people within the western edge of the gardens are walking through the gardens along the diagonal path between Toorak Road and Rockley Road. The more intensively used areas are close to a children's playground and flower stall within the Gardens east of Rockley Road. These areas are unaffected by the proposed building. We conclude that the extent of overshadowing cast by the proposed building would not diminish people's reasonable enjoyment of this park. We find it is an acceptable outcome.

[55]

The existing Toorak Road frontage between Tivoli Road and Rockley Gardens comprises 8, two storey shops. Three of the shops are located on the review site.
The design offers visual interest to the street, responding to the existing Victorian shop fronts by replacing the existing two storey shops with similar built form, reinterpreting their grain and rhythm in a contemporary way, and successfully incorporating the entry to the apartments. The southeast corner of the building has a large terrace at first floor level, seeking to allow for future growth in the canopy of the existing large tree immediately adjacent. However, the strong timber framing structure successfully holds the corner. Mr Sheppard suggested that street awnings would enhance the pedestrian experience in Toorak Road. We agree and will require their provision.
The setback at levels two and three is 3.6 metres. DDO7 suggests a 6 metre setback. The height of the building rises to 19.4 metres, generally consistent with DDO7. Mr Sheppard's evidence was that a reduction in setback is acceptable. The building is effectively on a corner, is at the edge of the activity centre, complies with the requirement for solar access to the south footpath of Toorak Road and maintains 'the clarity of the street wall'. His opinion was that the architectural treatment of the upper two floors, set back in excess of 7.5 metres from Toorak Road, makes them visually recessive to the extent that they are barely visible from the south side of the road. We note that this section of Toorak Road between Chapel Street and Rockley Road is remarkably inconsistent in both allotment widths and built form.
Whilst acknowledging the applicant's argument for a reduced setback on this site, we note that the blank west wall of the building, whatever its architectural treatment, will be clearly visible when travelling east along Toorak Road from Chapel Street, at least until the adjacent sites like Mr Ryan's are redeveloped. It is clear to us that despite the inhibition imposed by the variety of allotment sizes, the north side of Toorak Road within the activity centre is an inevitable candidate for higher building form. Thus, we conclude that the blank wall is likely to be an interim urban condition. In any event, blank side walls are not an unusual occurrence in major centres such as this one, and we conclude that an increased setback from Toorak Road would not alter this condition.
We find the Toorak Road interface acceptable.

[57]

The 'L' shaped site has a frontage of 10.97 metres to Tivoli Road, bordered by Time Lane to the south and the unnamed lane to the north. At ground level, the proposed roller door to the basement carparks is set back 1.2 metres from the street frontage. The balconies of the west facing apartments on levels one to three extend to the street frontage, and levels four and five are set back approximately 4.4 metres with a balcony intruding into the setback. Level six is set back 6 metres and level seven is setback 10 metres from the Tivoli Road frontage.
Mr Ryan and Council considered the setbacks to Tivoli Road both inadequate and inconsistent with the prevailing character of the area. The proposed building would be closer to Tivoli Road than the apartment buildings in the residential precinct to the north. However, we think this to be appropriate. The unnamed right of way on the north boundary aligns with a similar right of way to the west of Tivoli Road. Together these two rights of ways form a boundary between the commercial, business zoned, properties fronting Toorak Road and the residential properties in Tivoli Road to the north. The buildings on the west side of Tivoli Road, opposite the review site are built to the street boundary, whilst dwellings north of the right of way have a front setback. Setbacks on the side streets begin only when one leaves the Toorak Road precinct to enter the residential precinct. The perception of a transition between urban forms is emphasised by the landscaped traffic chicane in Tivoli Road that indicates a change of place. We think the lesser setback to Tivoli Road confirms that this property and building. address and form part of the Toorak Road precinct, a precinct that is denser and has a more robust built form. This robustness includes lesser setbacks.
Council submitted the proposed building, visible from the residential precinct to its north, would be inconsistent with the existing one to three storey scale found in that residential precinct. We are not persuaded that the scale and bulk of the building as designed would present unreasonable visual bulk to Tivoli Road. We note the Tribunal has consistently found that within a strategic planning context of a more compact city, some infill development is likely to be visible from existing residential areas and the public realm. The appropriate planning test is not whether it would be visible but whether it would have adverse outcomes.
1. Following our inspection, we are of the view that, except for the three storey front façade, much of the proposed building would be substantially screened from views from the east side of Tivoli Road by the street trees and the three storey apartment building at 8 Tivoli Road. More of the building would be visible from the west side of Tivoli Road, close to 7 and 9 Tivoli Road. However, even these views would be partly screened by street trees and the apartment building.
2. We think the wider view from Tivoli Road encompasses both medium sized and larger buildings. Views to the west from Tivoli Road comprise a mini CBD with very tall buildings. A very tall building is under construction and fills views along Tivoli Road to the south. The urban environment perceived from Tivoli Road comprises many large and robust buildings, partly filtered by trees and other buildings. We think this proposed building to be a modest addition to an already higher scale and intense urban area.
3. Council also submitted that the entry to the car basement at the ground level, flanked by two lanes, would create an area inhospitable to pedestrians. The applicant's explanation was that, due to the requirements of Melbourne Water for a raised entrance to the basements, neither lane was suitable for entry. In any event, the north lane would only be used to give access to the substation and for building maintenance. Time Lane, currently used by the residents of the shoptop units facing Toorak Road is for bicycle and service use only, and would no longer be used as a carpark entry. Council maintained that using Time Lane for services reduces the amenity of the lane. We acknowledge the arrangement is not ideal, but appreciate that the configuration of the site requires the double entry ramps as there is insufficient room for internal circulations and ramps within the basement. The location of the existing lanes is a considerable constraint.
4. We have considered the relocation of the security door at Tivoli Road to the crest of the ramp to provide an improved design interface to Tivoli Road. On balance, we consider that the location shown on the amended drawings close to the frontage to Tivoli Road is to be preferred. We think the location of the roller door as proposed will alert pedestrians to the imminent arrival of a vehicle. Its proposed location also eliminates a possible "dead spot" in the street frontage that may encourage anti social behaviour. We do not support Mr Ryan's suggestion that the entry to the basements be relocated to Toorak Road.
Taking into consideration the design constraints of the site and the evidence put to us, we are satisfied with the treatment of the façade to Tivoli Road.

[59]

The interface to the unnamed lane on the north boundary is in our view the most problematic aspect of this development. It is proposed the ground floor and levels one to six above would be built to the north boundary of the site. Beyond the eastern end of the lane, opposite the carpark of 8 Tivoli Road, the building is recessed 1.6 metres at level six, and 3.2 metres at level seven. To the south of the lane, level seven is set back 2 metres, providing a narrow terrace to the communal facilities extending to within 0.5 metres of the north façade. The wall height on the north façade is between 18 and 20 metres high. Each floor opposite the apartment building at 8 Tivoli Road includes balconies that would provide some visual relief from the sheer wall. Differing wall treatments and apartment windows also provide variety in the northern façade.
No. 8 Tivoli Road is a three storey apartment building on the north side of the unnamed right of way. The rear wall of the existing apartment building is approximately 7.5 metres from the north wall of the proposed building. The walkways providing access to the apartments protrude into this separation distance.
Mr Govenlock and Mr McBride thought the proposed treatment is acceptable given the physical attributes and context of this part of the site. Council and Ms Smart thought the transition from three storeys to seven storeys would be excessive and inappropriate. Council noted the design objectives in clause 11.0 of DDO7 include: 'to ensure new buildings minimise amenity impacts on residential areas at the fringe of the Activity Centre by providing a sensitive transition in terms of built form, scale, setbacks, overshadowing, overlooking and landscape'.
We acknowledge the north façade would be high, blank and very different to the relatively open interface currently provided by the ground level car park. Ms Smart commented she is "overlooked" by residents living on the south side of Toorak Road, hence longer distance views are enjoyed at present. These views would be replaced by a large wall.
We note the apartment building "turns its back" to the review site as its southern interface comprises open walkways, entries to the apartments and windows to kitchens and bathrooms. These windows are generally small and many have obscure glazing. None of the apartment entry doors have wire/mesh screen doors, and so are likely to be closed at most times, blocking south facing views from within the apartments. Outlook from the living rooms of the apartments is to the north, away from the review site. The only times when residents of the adjoining apartments would see the proposed building would be entering and leaving their apartments, and occasional views from their kitchens and bathrooms. We also note that the roof and the walkways to the apartments extend in the order of 1.2 metres from the south wall of the building. These serve to restrict upward views from the walkways, which means that people entering or leaving would not see the whole of the north façade of the building. We are not persuaded that given the strategic context, the transition between the review site and 8 Tivoli Road would be inappropriate.
We note the proposed building would not overlook or overshadow habitable room windows or private open space of the dwellings at 8 Tivoli Road. The north facing walls have been designed to diminish the perceived bulk and scale by the proposed use of a variety of materials and finishes.
In response to Council and Ms Smart's submission that the mass of the north façade should be diminished where possible, we have considered the effect of reducing the height of the "west wing" opposite 8 Tivoli Road, or requiring the upper floors to be set back further from the north boundary. We have concluded that removing levels or requiring setbacks would make little difference to the built form as perceived from 8 Tivoli Road.
However, we concur with Mr Jacques and Mr Fraser who thought additional climbing landscaping could be introduced to the façade. We think this treatment would enhance the north façade and will require this be addressed through permit conditions.

[61]

The proposed development has a sensitive interface to a number of dwellings located at the rear and above the shops at 329 to 337 Toorak Road.
Mr Sheppard and Mr Govenlock noted residents in dwellings in the proposed development on the north side of Time Lane would be likely to overlook the private open space areas and habitable rooms of the dwellings on the south side of Time Lane. In particular, the habitable rooms and wintergardens of dwellings 115, 211, 311, 410, 510 and 607 would have clear views of the existing dwellings. Time Lane is approximately 4.5 metres wide. Whilst clause 55.04-6 does not strictly apply, objective 2.9 of the Guidelines for Higher Density Residential Development proposes it be applied to minimise overlooking and protect privacy.
We concur with Mr Govenlock and Mr Sheppard the terraces and/or habitable room windows of particular dwellings in the proposed building need to be screened in some way to minimise overlooking. We concur the screening of apartments at the ground to third floor inclusive should provide screening of views across Time Lane. However, we appreciate screening can diminish the amenity of dwellings for the residents, and also add to the visual bulk of a building. We think that screening of terraces and habitable room windows at the fourth level and above should comprise devices to allow horizontal views and restrict downwards views. Such screening should demonstrate through scaled cross-section drawings it effectively minimises downward views.
We note that people on the terraces of the north facing dwellings at the east end of Time Lane could overlook the adjacent dwellings on the south side of Time Lane. Mr Govenlock thought the planters on the balconies of apartments 116, 212, 312, 411, 511, 608 and 704 would provide adequate screening to minimise views of the dwellings from the side of the balconies. We agree.
Mr Govenlock and Mr Sheppard thought the proposed development would overshadow the dwellings on the south side of Time Lane for most of the period between 9.00am and 3.00pm on the equinox. They thought this to be acceptable given the location of the site within a Business 1 zone and within a principal activity centre. We concur and note that a building of 19 metres with the setbacks preferred by Council would generate a similar outcome. We think that lesser amenity that is likely to arise for residents at the rear of the shops would be offset by their opportunities to enjoy the ambience and vibrancy of South Yarra and Toorak.
Dwellings 115, 211, 311, 410, 510 and 607 are proposed to be provided with "wintergardens" that are enclosed rooms that extend the living spaces. We consider these should be converted to outdoor terraces with limited screening. We think terraces would increase the articulation of the south facing façade and lessen to some extent the visual bulk of the building facing the shops and dwellings to the south. Whilst terraces might offer a lesser amenity for residents than enclosed wintergardens, given the extent of shadow, we think this to be a fairer sharing of the less positive aspects of the development between the residents orientated to Time Lane.
On balance, we think with some improvements, the interface to Time Lane can be satisfactory for existing and future residents.

[66]

Mr Townshend thought the agreement to be irrelevant as it was created in association with planning permit 0811/00 issued on 7 December 2000. This permit allows the construction and use of the land for signage, windows and associated works for a bottle shop and 31 seat bar. His view was that section 8.4 of the agreement clearly contemplates no fettering of the responsible authority's power or discretion to approve a planning permit or endorse plans.
Mr Wong thought the agreement was a matter that was not fatal to the application, but was a matter to which we should give weight. He thought this proposal to be inconsistent with the agreement as it includes openable doors facing the Gardens. He thought the eastern façade of level ground and level one should be should be set back 3 metres to comply with the agreement.
We give limited weight to the section 173 agreement. We think our assessment of this proposal should be guided by its planning and design merits. In our view, an interface to the park comprising four single bedroom apartments and one two-bedroom apartment on the ground floor, and nine apartments on the first floor would be highly complementary. Whilst the apartments on the ground floor can open their doors to the park, and there would be a small setback of 1.68 metres, we do not see that the presence of occupants of these dwellings would diminish other people's use or enjoyment of the park. Residents of the dwellings might from time to time generate music, conversation and the like, but this would be likely to be infrequent and muted. Casual surveillance between occupants of the apartments and the park users would be filtered by the landscaping and the existing planting that forms a substantial buffer between the usable areas of the park and the common boundary. We have previously noted the presence of the public toilet on the western boundary of the park and think park users might find some casual surveillance to be a positive outcome of this development.
It is our view this agreement arose from entirely different circumstances than those we are considering. It has little utility or relevance to this proposal. We think Council should be proactive and terminate the agreement so proposals are assessed on their merits, in the context of the contemporary planning framework. We think it undesirable that proposals should respond to prescriptive and arbitrary requirements framed some time ago that are unrelated to residential and shop uses.

[68]

It is proposed to provide 46 car parking spaces in two basements. Forty-three spaces would be provided for residents of the apartments and one space would be allocated to each of the three shops. It is also proposed to provide 54 bicycle spaces in two locations. Waste is to be stored in a designated room on the ground floor. No loading bay is to be provided.
The basements would be accessed by separate ramps to each basement. This is necessary as the dimensions of the site do not enable internal ramps between the two basements. A "hump" is to be installed close to the entry to the ramps to prevent inundation, in accordance with Melbourne Water's requirements. A security grille is to be provided 1.2 metres from the Tivoli Road frontage.
The proposal seeks approval for a reduction in the provision of car parking, and a waiver of a loading bay required in association with the three shops.
Mr Wong agreed with the provision of car parking spaces and access from Tivoli Road, although he had some concerns with the design of some spaces. He also agreed the proposed provision of bicycle parking exceeded the requirements of the planning scheme, although he proposed some changes in the location of the visitor spaces. He also sought some changes to the waste storage and collection arrangements.
In respect of car parking, the provision of 46 spaces at a rate of 0.55 spaces per apartment is considerably less than the rate of 2 spaces per dwelling required under clause 52.06. It is also less than the rate of one space per dwelling required by standard B16 of clause 55.03-10 that applies to residential developments of one to three storeys.
Mr Walsh thought the lesser rate to be appropriate as 2006ABS Census data shows households in Stonnington have a relatively low car ownership rate. The data indicates that forty percent of one bedroom households and twenty percent of two bedroom households do not own a car. Given these rates apply to all of Stonnington, we think the proportion of households without cars may be even higher in South Yarra given the suburb's convenient access to public transport and bicycle routes, and the constrained provision of on street car parking. We think it appropriate to constrain the provision of car parking to encourage a gradual shift in travel in areas rich in public transport from car use to public transport, cycling and walking. We think this approach to be consistent with local planning policies that seek to minimise dependence on car use and facilitate sustainable transport options.[7]
The car parking surveys conducted by Cardno Grogan Richards indicate there is limited on street car parking available in this locality. Some on street parking is reserved for residents through 'permit only' parking areas, whilst most is time limited. We think visitors to the shops and dwellings in this development would not expect ready access to car parking and would be likely to use other travel modes or anticipate parking some distance from the building and for limited times. This is part of the South Yarra "experience" and any inconvenience is offset by the ambience of the wider Principal Activity Centre.
Mr Wong thought the layout of the car parking in the two basements to need some improvements. Mr Walsh's evidence was the layout would be satisfactory, particularly for residents who would use the spaces regularly and therefore become adept at accessing the spaces that required additional manoeuvres. The access aisle within the basement would have a width of 7 metres, providing adequate space for turning movements. Mr Walsh also considered the ramp grades would be adequate to ensure surveillance of pedestrians on Tivoli Road. We agree that as vehicles are descending downward from the crest of the ramp as they approach the exit to Tivoli Road, drivers would have adequate opportunity and sightlines to observe pedestrians and we would anticipate few problems.
No provision is made for a loading bay for the three shops as required by clause 52.07 of the scheme. Mr Walsh thought a dedicated loading bay to be unnecessary as the delivery vehicles are likely to be relatively small and their delivery time very brief. He noted loading bays are available on Toorak Road and Tivoli Road and thought these would be adequate for deliveries to the shops.
Mr Wong thought Time Lane and the land north of the review site should not be used for loading or unloading as such activities would detract from the amenity of the residents in the proposed building and in the dwellings abutting to the north.
We think using Time Lane and the unnamed lane to the north for loading to be reasonable. We expect that most loading would be brief, and would occur in business hours. A delivery vehicle parked for a short time in Time Lane or the right of way to the north would be unlikely to inconvenience local residents, and it provides an alternate location for vehicles in a congested area. We think it an appropriate use of those roads. The time available for any vehicle should be time limited to ensure residents or delivery vehicles do not use the lanes for longer stay parking.
It is proposed to provide 54 bicycle parking spaces. Thirty-eight spaces are to be located in dedicated bays in the second basement, and 16 visitor spaces are to be provided at ground level.
The planning scheme requires 15 spaces for residents and 7 spaces for visitors. Mr Wong proposed some spaces should be located close to the front entry rather than in the basement and adjacent to Time Lane. We consider that 7 spaces should be located close to the entry to the foyer, accessed from Toorak Road, as this would be the place most convenient to visitors. We do not think the bicycles should be randomly secured within Rockley Gardens and prefer dedicated spaces be provided as part of this development.

[70]

Mr Wong had few criticisms of the quality of the internal amenity of the apartments. Mr Govenlock thought the apartments would provide an acceptable level of internal amenity.
We consider the apartments would provide suitable accommodation for the wide range of households we anticipate would prefer to live in Prahran and South Yarra. The apartments would provide:
- choice in terms of affordability, size and amenities
- well defined entries to the building and to each apartment
- integration of internal meals areas, living spaces and external, private open space
- good access to daylight in the living areas
- adequate storage areas in the basements
- adequate waste storage facilities
- site services located conveniently near the front entry
- many apartments would enjoy attractive views to the Gardens, to Toorak Road and north to the Yarra River and the northern inner suburbs.
We note that at level one, 5 level one apartments (units 105 to 109) do not contain any private open space. This also applies to the east facing apartments at ground floor where the private open space is largely taken up with planters. Mr Govenlock thought this to be acceptable as the residents would have access to the two communal areas on the sixth and seventh floors. Large sliding glazed walls to the east would enable residents to enjoy both fresh air and the ambience of the Gardens. Whilst we consider this to not be an optimum solution, we find that it provides an acceptable level of internal amenity in view of the communal areas available to residents, as well as the adjacency of Rockley Gardens. We also consider that in this particular context, this provides further choice of dwellings that would suit some households and they would choose these apartments knowing there is little or no private open space.
We think a particularly attractive feature of the proposal to be the various communal spaces available to residents. These include an open space terrace overlooking Toorak Road on level six, and the residents lounge and dining area on level seven. These provide spaces to complement the sometimes very limited areas of private open space available for some apartments, by enabling residents to enjoy generous spaces well located to enjoy views and the "ambience" of South Yarra.
We agree with Mr Govenlock that the seven apartments facing north to Time Lane would be 'sub-optimal' as they have secondary or borrowed light to bedrooms. Their orientation to the south means they will experience considerable overshadowing and have poor solar access. As we have noted, they are adjacent to the dwellings at the rear of 329-337 Toorak Road however, we are satisfied the planters provide sufficient screening and not cause any further loss of amenity to these apartments.
We note approximately 18 of the proposed 78 apartments would rely on borrowed light to the bedrooms. Mr Fraser described the internal design of these apartments as including large glass windows between the bedroom and living area to enable the bedrooms to enjoy considerable light, whilst having the flexibility to draw a blind for privacy and darkness. We think this adequately addresses the amenity of the bedrooms, and we recognise the arrangement needs to meet building code requirements and is a matter on which the planning scheme provides little guidance.
We thought the width of the internal corridors to be minimal and whilst compliant with building codes, thought a more generous width would improve the amenity and ease of movement within the building. However, we do not intend to impose conditions requiring changes, although suggest wider corridors might be included in the final plans if possible.
Overall, we think most of the apartments would provide highly satisfactory amenity for their residents. Most have generous size and internal living spaces, complemented by spacious external terraces and excellent views.
The apartments with lesser amenity we think would meet the housing needs of some households. They would command a lower price/rent than most of the other apartments and hence enable some households access to the inner city market. The lesser amenity would be complemented by the review site's convenient access to the shops, cafes, public transport and education facilities nearby. The review site also provides convenient access to the multitude of opportunities in Melbourne's CBD and inner region. This proximity would enable households living in the sub-optimal apartments to enjoy a satisfactory amenity for the time they reside in the apartment.
Overall we are satisfied the development would provide reasonable amenity for a range of households.

[86]

Prior to construction commencing, the significant Platanus x acerifolia (London Plane) tree located east of the proposed site will require pruning to facilitate the building works. This must only be carried out by Council when requested by the applicant and done so at the full cost and expense of the applicant.
After demolition has occurred at the site, but prior to excavation works, an air-knife excavation must occur on the site opposite the significant London Plane tree in Rockley Gardens. A Council Arborist must inspect the trench when it has been completed. Any tree roots located during this investigation must be pruned with the appropriate equipment in the presence of a Council Arborist.
During demolition and excavation, an articulated screw pile machine must be engaged to carry out works opposite the significant London Plane tree to reduce the amount of canopy reduction required for screw pile works.
During the entire demolition, excavation and construction phase any tree protection zones that are to be inserted around trees in Rockley Gardens, as determined by the Tree Management Plan, must be installed and maintained to the satisfaction of the Responsible Authority. No vehicular or pedestrian access, trenching or soil excavation is to occur within the tree protection zones without the written consent of the Responsible Authority. No storage or dumping of tools, equipment or waste is to occur within the tree protection zones.
All costs for the removal and replacement of the street tree along Tivoli Road are to be borne by the applicant and paid for at the time of applying for a vehicle crossing permit. All works (removal, species selection and planting) in this regard will be undertaken by Council at the full cost of the applicant.
Concurrent with the endorsement of plans, a Waste Management Plan generally in accordance with that prepared by Wastetech Services Pty Ltd dated 14 December 2010 must be submitted to and approved by the Responsible Authority. The Waste Management Plan must include:

[95]

details of signing and line marking of parking spaces and pedestrian pathways in shared zones 2. how parking spaces are to be secured for the intended use.
Prior to the commencement of works, a preliminary environmental site assessment is to be prepared by a suitably qualified environmental professional. The environmental site assessment should include:
1. a preliminary review of the site history, including known activities or the location of works that may have had the potential to cause contamination of the land, and including anything known about the likelihood and significance of any contamination on the land
2. confirmation that there is nothing known from the site history or its potential contamination that is likely to prevent the proposed development and use of the land.
A report for the legal point of discharge must be obtained from Council and a drainage design for the development must be prepared by a suitably qualified Engineer in accordance with that report prior to a building permit being issued. The drainage must be constructed in accordance with the Engineer's design.
The 300mm diameter drain running within the drainage reserve beside the east side of the development must be protected at all times from damage. Any damage to the drain must be reported immediately to Council's Maintenance Unit on phone 8290 2007.
All walls on or facing the boundaries of the site must be cleaned and finished to the satisfaction of the Responsible Authority.
All plant and equipment (including air-conditioning units) shall be located or screened so as to minimise visibility from any of the surrounding footpaths and from overhead views and shall be baffled so as to minimise the emission of unreasonable noise to the environment in accordance with section 48A of the Environment Protection Act 1970 to the satisfaction of the Responsible Authority. Ventilation systems must be designed and installed in accordance with relevant Australian Standards.
The use and development must be managed so that the amenity of the area is not detrimentally affected through the transport of materials, goods or commodities to or from the land, appearance of any building, works or materials.
The loading and unloading of vehicles and the delivery of goods to and from the premises must at all times be conducted entirely within Time Lane or from nearby publicly designated loading bays in a manner that limits interference with other vehicular traffic to the satisfaction of the Responsible Authority. The loading and unloading of vehicles and the delivery of goods to and from the premises must only occur between the hours of 7.00am and 10.00pm Mondays to Saturdays and between 9.00am and 10.00pm on Sundays or public holidays to the satisfaction of the Responsible Authority.
Bottles and rubbish must not be removed from the hereby approved commercial uses between the hours of 11.00pm and 7.00am the following day.
Noise emanating from the subject land must not exceed the permissible noise levels when determined in accordance with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1, to the satisfaction of the Responsible Authority. Any works required to ensure and maintain the noise levels from plant and equipment areas are in compliance with this policy must be completed prior to the commencement of the use or within three months of the occupation of the site and maintained thereafter, all to the satisfaction of the Responsible Authority.
Equipment, services, architectural features or structures of any kind, including telecommunication facilities, other than those shown on the endorsed plans must not be located above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority.
Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.
The crossover proposed to Tivoli Road is classified as a 'non-standard' crossing due to its width, and separate approval must be obtained for this crossing from Council's Local Laws Department.
All services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
Prior to occupation, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be constructed to the satisfaction of the Responsible Authority and:

[102]

No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
The ground floor residential units/apartments must be constructed with finished floor levels set no lower than 4.98 metres to Australian Height Datum.
The ground floor retail shops must be constructed with finished floor levels set no lower than 3.98 metres to Australian Height Datum.
The ground floor lobby, lift area, mail room, communications room, switch room and sub station must be constructed with finished floor levels set no lower than 4.98 metres to Australian Height Datum.
All doors, windows, vents and openings to the basement car park (except the entry/exit driveway) must be a minimum of 400mm above the applicable flood level.
A bund wall to a minimum of 400mm above the applicable flood level is to be constructed along the driveway to prevent flood waters entering the basement car park.
The entry/exit driveway of the basement car park must incorporate a flood proof apex set at a height no lower than 4.58 metres to Australian Height Datum.
The basement car park must be protected by a Self Closing Flood Barrier, as specified in the Flood Risk Management Plan (Robert Bird Group, Flood Risk Management Plan, Issue: A, Date: 12 March 2010) to a height set at 4.98 metres to Australian Height Datum.
Prior to the final commissioning of the works, a maintenance plan for the Self Closing Flood Barrier must be submitted to Melbourne Water and Council. The maintenance plan must be treated the same as any other essential services with mandatory annual reporting and maintenance checks.
The drainage system is to be constructed so that external flooding is unable to penetrate the basement area.
Prior to the commencement of works, engineering computations and detailed plans of the proposed flood barrier are to be submitted to Melbourne Water for our records.
Flood resistant materials must be used for the construction of floor levels and walls below the applicable flood level.
All electrical and plumbing fittings must be to the standards of the Relevant Authority for areas subject to inundation, for all services contained within the ground floor.
Prior to the commencement of works, a Flood Response Plan must be submitted to the Responsible Authority and Melbourne Water by an accredited risk management professional.
Unless otherwise agreed in writing by Melbourne Water, the Flood Response Plan must provide for ongoing effective management of flood risks.

At a glance

Court

Decision date

Before

Source

Judgment (111 paragraphs)

AusGroup Property Pty Ltd v Stonnington CC [2011] VCAT 672 (19 April 2011)

Parties