Australia Mei Jei International Corporaton Pty Ltd v Boroondara CC [2015] VCAT 158

1. The decision of the Responsible Authority in relation to permit application no. PP13/00758 is set aside.
2. A permit is granted in relation to land at 85-101 Maling Road, Canterbury. The permit will allow:
   • Demolition of an existing building and construction of buildings and works in the Heritage Overlay;
   • Construction of more than two dwellings within the Neighbourhood Residential Zone Schedule 3;
   • Construct a building and use of building for restaurant within the Neighbourhood Residential Zone Schedule 3;
   • Waiver of visitor car parking;
   • Reduction in car parking requirement for restaurant and;
   • Waiver of loading bay requirement

generally in accordance with the endorsed plans and subject to the conditions contained in Appendix A.

For Australia Mei Jei International Corporation Pty Ltd

Mr John Cicero & Ms Sarah Russo, Solicitor Best Hooper.

The following witnesses were called to give evidence:

• Mr Billy Kavellaris, Architect, Kavellaris Urban Design.
• Mr Bryce Raworth, Heritage, Bryce Raworth Pty Ltd Conservation Urban Design.
• Mr John Patrick, Landscape, John Patrick Pty Ltd.
• Mr Peter Andrew Barrett, Heritage, PAB Architectural Conservation Consultant.
• Mr Timothy Marks, Acoustic, Marshall Day Acoustics.
• Mr Mark O'Dwyer, Urban Design. H2o architects Pty Ltd.
• Ms C A Heggen, Town Planning, Message Planning Urban Design Communication.

Evidence of Mr Christopher Goss, Visual amenity, Orbit Solutions Pty Ltd was tendered but Mr Goss was not called.

• Mr Craig Czarny, Urban Design, Hansen.
• Mr Bruce Trethowan, heritage, Trethowan architecture interiors heritage.

Ms Lisa Hollingsworth read out statements and appeared on behalf of the following persons; Mr Gerald Yeo & Ms Karman Ip, Ms Wendy & Mr Tim Wilkinson, Ms Elissa McElvoy, Mr Peter Mather, Ms Eloise Sargent, Ms Claire Sargent, Ms Sophie Williams, Ms Jane Nash, Mr Gordon Black, Mr Martin Wettenhall, Mr Simon G Hollands, Mr Peter Jenkins.

Ms Lisa Hollingsworth appeared on behalf of the Canterbury Community Action Group (inc) who called the following witness:

• Mr John Briggs, Heritage, John Briggs Architects Pty Ltd.

The following residents appeared in person; Mr Roger Mayes, Ms Lorri Buttner, Mr Rober Ewing, Mr Adri Leening, Mr David Fothergill, Mrs Frances Barnett, Mr Adam Howley, Mr Robin Crocker, Mr David Giddings, Mr Roger Mayes, Ms Amanda Rasmussen-Huang, Mrs Mary Drost OAM, Mr David Norman, Mr Peter Clifford, Mr John Unkles, Mr Norm Cokerall, Ms Emma Appleton, Mr David Giddings.

Demolition of existing building and construction of a three storey apartment building to contain 34 dwellings over three levels, with two ground level restaurants totalling 240 square metres and basement car parking.

Application under Section 77 of the Planning and Environment Act 1987.

Neighbourhood Residential Zone, Schedule 3 [NRZ3].

In the Neighbourhood Residential Zone Schedule 3 a planning permit is required to:

• clause 32.09-5 to construct 2 or more dwellings on a lot.
• clause 32.09-1 and 32.09-7 to construct a building for a use in Section 2.
• clause 32.09-1 use the subject site for restaurant.

In the Heritage Overlay Schedule 145 [HO145], a permit is required to:

• clause 43.01-1 demolish or remove a building.
• clause 43.01-1 construct a building and carry out works.

Clause 52.06-5 a permit is required to waive 6 residential visitor car spaces.

Clause 52.06-5, a permit is required to reduce the standard car parking rate for the restaurant use.

Clause 52.07 a permit is required to waive the requirements for loading and unloading of commercial buildings.

Clauses 11.01, 11.04-2, 13.04, 15, 16, 18, 21, 21.02, 21.03, 21.04, 21.05, 21.07, 22.05, 22.07, 52.06, 52.07, 55 and 65.

The subject site is irregular in shape and has a Maling Road frontage along its southern boundary of 57 metres, a depth of 23.65 metres and an overall site area of approximately 1707 square metres.

The northern boundary abuts the Canterbury station railway reserve. This embankment is approximately 4.5 metres in height. The eastern boundary is shared with a 3 metre right of way. The west boundary abuts 83 Maling Road being the former Stationmasters Quarters house.

The subject site currently accommodates a disused motor vehicle service centre and a single storey office building.

More broadly, the site sits at the western edge of the Maling Road shopping precinct. The shopping precinct is characterised by two storey buildings. The residential precinct to the west is characterised by single and two storey Victorian, Federation and inter-war buildings. .

The Tribunal inspected the site and surrounds on 26 November 2014.

Brandied Pty Ltd v Bayside CC [2014] VCAT 1361.

Bayside Property Projects Pty Ltd v Bayside CC [2014] VCAT 958 (8 August 2014).

Colquhoun & Ors v Yarra CC [2010] VCAT 1710 (21 October 2010).

Global Alpha Group Pty Ltd v Boroondara CC [2013] VCAT 1929 (18 November 2013).

1. This is an application to review the decision of the Responsible Authority to refuse permission for the demolition of a building and the construction of a three storey building at 85-101 Maling Road, Canterbury. The Responsible Authority issued a Notice of Refusal to Grant a Permit on a number of grounds relating to planning policy, heritage, inappropriate design, internal amenity issues, traffic and car parking.
2. The Council's refusal of the application related to a four storey building above a basement car park. Following the Council's refusal of the application, the permit applicant prepared and circulated amended plans that, among other things, reduced the height of the building to three storeys above a basement car park.
3. Following the submission of amended plans, the Council continues to oppose the grant of a permit but modified its grounds of refusal and submitted that the amended plans largely addressed their traffic and car parking concerns. The Council did not pursue these grounds, other than with respect to the provision of car parking for the ground floor restaurants.
4. There are a large number of objectors to this application. The objectors broadly support the Council's grounds of refusal, and emphasise the heritage and character qualities of the Maling Road shopping centre, and the surrounding residential area. The objectors emphasise the need for any redevelopment of this site to incorporate a building that sits comfortably within Maling Road and its context. The objectors submit that this proposal does not achieve that outcome. Unlike the Council, they continue to raise concerns about traffic and car parking matters.
5. The Permit Applicant submits that the site represents an opportunity for development and that the proposed built form and layout is sympathetic to the site's location, character and heritage context.
6. This building is a contemporary and in many respects, a challenging piece of architecture. Mr Kavellaris who designed the building, described the building as a link between the past and future of Maling Road, a building that narrates the language of the Maling Road precinct in a contemporary way.
7. The assessment of the architectural merit of the proposed building, occupied a significant amount of time during the hearing. This is not surprising having regard to the heritage context in which the site is located, and the contemporary nature of the architecture itself. Some of the submissions we received, and at least some of the evidence amounted to an expression of taste; an expression of whether the architecture was liked or disliked.
8. It is important to appreciate, however that our assessment of this proposal is not concerned with issues of taste. The Tribunal cannot make a decision on this application based on whether the Tribunal members like the architecture or not. Our task is much more difficult than that. We must decide, among other things, whether this proposal will adversely affect the natural or cultural significance of the place, and the character of the area, and whether this proposal is acceptable having regard to the site's physical and strategic context. Impacts on the amenity of neighbouring properties, are also relevant matters, as are the acceptability of car parking and traffic management.
9. The principle issues in this case can therefore be categorised as follows:
   • Is the proposed development acceptable having regard to the site's strategic context?
   • Will the proposal adversely affect the natural or cultural significance of the place?
   • Is the proposal acceptable from a neighbourhood character perspective?
   • Will the proposal contribute to unacceptable off-site impacts?
   • Is an acceptable level of internal amenity achieved?
   • Is the provision of car parking acceptable and are the traffic management arrangements acceptable?
10. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Boroondara Planning Scheme, we have decided to set aside the decision of the Council and grant a planning permit. Our reasons follow.

IS THE PROPOSED DEVELOPMENT ACCEPTABLE HAVING REGARD TO THE SITE'S STRATEGIC CONTEXT?

1. The last 12 or 18 months or so, has witnessed significant change in the policy framework and zone provisions as they apply to residential development in metropolitan Melbourne. The Tribunal has in a number of recent decisions chronicled these changes and explored their implications for the consideration of planning permit applications. Member Bennett in Global Alpha Group Pty Ltd[2] stated that Planning as we know it, is changing. He referred to the significant changes to the planning scheme with the introduction of new zones and planning policy documents such as Plan Melbourne[3]. Government has also introduced a suite of new residential zones (Residential Growth, General Residential and Neighbourhood Residential zones) and these are being progressively applied by Councils to replace the previous Residential 1, 2 and 3 zones.
2. The City of Boroondara is one of a small number of municipalities in which the new Residential zones have already been applied. The review site in this case has been rezoned from Residential 1 to Neighbourhood Residential (NRZ3)[4]. The purpose of the NRZ3 is different to that of the former Residential 1 zone, and includes new purposes that recognise areas of predominantly single and double storey residential development, limit opportunities for increased residential development, ensure that development respects identified neighbourhood character, and implements neighbourhood character policy and guidelines. In contrast, the purpose of the Residential 1 zone encouraged residential development at a range of densities with a variety of dwellings to meet the housing needs of all households, and encouraged residential development that respects the neighbourhood character.
3. Significantly, the NRZ3 also limits to two the number of dwellings on a lot unless otherwise specified in a schedule (Clause 32.09-3), and sets a maximum height for a dwelling or a residential building of 8m unless on a sloping site or otherwise specified in a schedule (Clause 32.09-8).
4. There are however transitional provisions that apply to each of these clauses.
5. Under the transitional provisions, the mandatory limit on the number of dwellings and the mandatory height limit do not apply to an application to construct a dwelling or residential building made before the approval date of the planning scheme amendment that introduced the NRZ3 into the Boroondara Planning Scheme. This application benefits from those provisions, and discretion therefore exists to grant a permit for this proposal notwithstanding the rezoning of the site to NRZ3.
6. The Council and the objectors submit that the transitional provisions have a limited application in that they do not exempt the consideration of this application against the purpose of the zone and all other provisions of the zone. They submit that for example, the issue of neighbourhood character in the NRZ3 has been significantly elevated as a relevant consideration over and above that which applied in the Residential 1 zone, or which currently applies in the General Residential zone. Mr Rantino refers to a number of recent decisions in which the Tribunal has considered the implications of the transitional provisions in the NRZ3[5]. Mr Rantino submits that these decisions have consistently held that notwithstanding the transitional provisions in the zone, neighbourhood character considerations assume greater importance over other matters where the NRZ has been applied.
7. Mr Rantino also referred to and relied on these decisions in support of his submission that the NRZ purpose to "limit opportunities for increased residential development" has in effect shifted the weight between urban consolidation and neighbourhood character objectives when contrasted with the previous Residential 1 zone.
8. The Council and the objectors therefore submit that while the review site exhibits characteristics that from a strategic perspective, supports the site's redevelopment, these characteristics are significantly constrained by the application of the NRZ3.
9. In effect, the Council and the objectors submit that because of the application of the NRZ3, any policy or strategic level support which this proposal may have enjoyed prior to the rezoning, is now outweighed by the elevated status of neighbourhood character in the decision making process.
10. In fairness, the Council did not submit that those strategic considerations that support this site's development, factors including the site's proximity to public transport, community, employment and recreational services and facilities, are irrelevant to our assessment of this proposal's acceptability. The Council's submission is that these are subservient to any assessment of the proposal's respect for existing or preferred neighbourhood character.
11. We agree with the submission that the transitional provisions operate in such a way that this application must be assessed against the purpose and provisions of the NRZ3, but the complicating factor in this case, is that our assessment is not constrained by the mandatory limitation on the number of dwellings and height of the building. A further relevant factor is the purpose of the transitional provisions that were introduced by Government as a means of phasing in the new residential zones in a manner that ensured existing applications would not be disadvantaged by the mandatory provisions[6].
12. With respect to the purpose of the transitional provisions, in response to questions from the Tribunal, both Mr Rantino and Mr Cicero agreed that that because of the limited way in which they had been introduced, the other provisions of the NRZ3 are well and truly in play in terms of how we proceed with our assessment of the proposal. The limited scope of the transitional provisions does not however preclude us from at least having regard to the Government's intent to ensure that existing applications would not be disadvantaged by the provisions included in the new residential zones.
13. As to the submission that the NRZ3 elevates neighbourhood character considerations above those objectives that encourage redevelopment of this site at higher residential densities, we agree that post expiry of the transitional provisions, neighbourhoods that have had the NRZ3 applied to them, are not intended to play a significant role in the achievement of urban consolidation objectives. This is evident if only from the prohibition on more than two dwellings per lot. In circumstances where the transitional provisions do apply, we also agree with Mr Rantino that the Tribunal decisions referred to by him, support the proposition that neighbourhood character as a consideration is elevated in the manner discussed previously. We do not agree however that these decisions can be relied on as authority that in all circumstances where transitional provisions apply, neighbourhood character will always assume greater weight than urban consolidation objectives. In each of the cases referred to us, we ascertain that the Tribunal has undertaken a contextual assessment of a proposal and of the extent to which a proposal implements and gives effect to neighbourhood character. A range of factors that vary from case to case and from site to site have influenced the contextual assessment. In each of the cases, and to varying degrees, these factors included the policy framework, the purpose and decision guidelines of the zone, Clause 55, and Clause 65, the size and configuration of the lot, the nature of abutting uses and the form of development on abutting lots. The purpose of the transitional provisions will also play a role.
14. We note in this respect the decision of Senior Member Baird and Member Carew in 360 New Street Brighton Pty Ltd v Bayside CC[7], one of the cases relied on by Mr Rantino, in which the Tribunal commented:

• An application must respond to its physical and strategic contexts.
• The Zone purpose must be considered in assessing an application.
• Compared with the former Residential 1 Zone, the language of the purpose of the Neighbourhood Residential Zone with respect to neighbourhood character has raised the obligation to respond positively to, and implement, the preferred character.
• Different outcomes can be contemplated for proposals relying on the transitional provisions (because they are not bound by the mandatory limitations such as the number and height of dwellings) but the response to the preferred neighbourhood character is an important consideration in an assessment of the merits

1. In that case, the Tribunal proceeded to undertake a contextual analysis of the proposal in terms of its response to the site's physical and strategic context, and its response to the preferred character of the neighbourhood. Based on that assessment, the Tribunal concluded that the proposal responded in an acceptable manner to the preferred character of the neighbourhood, and a permit for 13 dwellings in a NRZ issued.
2. Based on our review of the decisions referred to us, we conclude that the Tribunal has appropriately acknowledged a shift in the weighting between neighbourhood character and urban consolidation objectives resulting from the application of the NRZ. The shift in the weighting however, has not inevitably and in all cases where transitional provisions apply, led to neighbourhood character assuming greater weight than other relevant policies. The weight applied to different policies will vary from site to site. We agree with the approach adopted by the Tribunal in the 360 New Street Brighton case, and that approach is broadly consistent with that of the Tribunal in the other cases referred to us.
3. Consequently, the rezoning of the site to NRZ3 and the inclusion of the transitional provisions in the zone, has the impact of adding additional layers of complexity to the already complex and competing policies that applied to the review site prior to the rezoning.
4. In summary therefore, the policy context for this site can be broadly summarised as follows:
   • Plan Melbourne identifies that Melbourne will require a total of 1,570,000 new dwellings by 2051 to meet an expected growth in population of 3.4 million. It further identifies that 480,000 of these new dwellings will be provided in the form of apartment style. The established suburbs of Melbourne are not exempt from providing housing with the majority of housing (650,000 dwellings) to be constructed within established Melbourne[8].
   • Planning should provide for housing diversity, and new housing should have access to services and be planned for long term sustainability, including walkability to activity centres, public transport, schools and open space[9]. New housing is to be located in or close to activity centres and employment corridors and at other strategic redevelopment sites that offer good access to services and transport[10]. The proportion of housing in Metropolitan Melbourne within the established urban areas is to be increased, particularly at activity centres, employment corridors and at other strategic sites and the share of new dwellings in green field and dispersed development areas is to be reduced. Higher density housing is encouraged on sites that are well located in relation to activity centres, employment corridors and public transport[11].
   • The site is within close proximity to a railway station, shopping centre and a range of community facilities. The Plan Melbourne concept of a 20 minute place is easily applied to this site.
   • The site fulfils the criteria for a strategic redevelopment site as identified in clause 16.01-3, although the Council has not identified the site in local policy as a strategic redevelopment site. The site is nevertheless a relatively large parcel of land able to provide 10 or more dwelling units, is close to an activity centre and is well served by public transport.
   • The site abuts the edge of the commercial area of Maling Road. The status of Maling Road was debated and Council and the Objectors submit that Maling Road is not an activity centre because the planning scheme at clause 21.08 (Activity Centres and Enterprise Corridors) does not identify Maling Road in the Framework Plan as an activity centre. The Council and the objectors submit the term 'activity centre' has not been applied to Maling Road, those policies that encourage higher density development do not apply here. Irrespective of the absence of Maling Road from the Framework Plan, Maling Road performs all the functions of an activity centre. Plan Melbourne defines an activity centre[12] as suburban centres that provide a focus for services, employment, housing, transport and social interaction. Maling Road provides all these facilities and services, provides for social interaction, provides employment and access to public transport.
   • Clause 15.03-1 encourages appropriate development that respects places with identified heritage values and creates a worthy legacy for future generations'
   • The Council's Heritage Policy at Clause 22.05 encourages development that respects, protects and enhances the cultural heritage significance of identified heritage places.
   • The neighbourhood character policy at clause 22.07 encourages design solutions which enhance and respond positively and creatively to the existing neighbourhood character of residential areas in the City. Clause 22.07 references the recently updated City of Boroondara Neighbourhood Character Study Precinct Statements, 2013 which places the site in Precinct 45. The guidelines identify that the precinct comprises the residential component of the Maling Road Shopping Centre and residential environs heritage overlay.
5. There is therefore a complex web of interacting and at times competing policies and objectives which apply to our consideration of this application. As in all cases, responsible authorities (and on review the Tribunal) should endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations[13]. This is what we have done in this case.

Will the proposal adversely affect the natural or cultural significance of the place?

1. Let us put the site in its heritage context.
2. A permit is required under clause 43.01. The general purpose of the zone is to conserve and enhance heritage places of natural or cultural significance and ensure that development does not adversely affect the significance of heritage places.
3. The subject site is included in Heritage Overlay HO 145. The subject site is identified as a non-contributory site which are defined as:

...places within a heritage precinct that have no identifiable cultural heritage significance. They are included within a Heritage Overlay because any development of the place may impact on the cultural heritage significance of the precinct or adjacent 'significant' or 'contributory' heritage places.

1. Clause 22.05, the Council's Heritage Policy describes the significance of HO145 Maling Road Shopping Centre and Residential Environs, Canterbury in the following terms:

Maling Road Shopping Centre and Residential Environs, Canterbury, is an area of heritage significance for the following reasons:

• The precinct is a comprehensive and architecturally notable illustration of the effect of the railway's arrival in the Victorian era and the railway's further development around WWI. This is expressed, in part, in the distinctive street pattern that runs axially from the Canterbury Railway Station. It is also expressed in the well preserved residential and commercial development which was largely complete by WWII.
• The Maling Road and Canterbury Road commercial strips demonstrate a high level of architectural excellence, strong Victorian, Federation and interwar-era expression and a high degree of visual cohesion. The Maling Road strip also contains individually notable buildings that have a high degree of integrity and landmark value; the Post Office (1908), the Canterbury Theatre (1912), Malone's Hotel (1889) and the former Stationmasters Quarters Quarters at 83 Maling Road (c1987).
• The place is a highly representative Victorian and Federation-era residential precinct with individually notable houses. The precinct is interspersed with strong and well preserved interwar elements that offer an historic and architectural contrast and create streetscapes of high aesthetic interest.
• The precinct contains well preserved residential and commercial examples from the 1920s-30s, which reflects the premier status of Camberwell as an urban growth area during that period.
• The precinct has an historic association with Terry & Oakden, the designers of the original Claremont Park Estate and one of Victoria's most important architectural firms, and other important architects of the time such as Ward and Carleton and Ussher and Kemp.
• The precinct includes public landscaping elements such as asphalt paving, basalt pitching, kerbs, channels and mature trees and garden plantings, some of which date from the beginnings of the Claremont Park and Highfield Estates.

1. Council's Heritage Policy at clause 22.05 seeks to ensure that works respect the cultural heritage significance of the heritage place, promotes urban and architectural design which clearly and positively supports the ongoing significance of heritage places and when considering issues of bulk, form and appearance of new development.
2. We were reminded by Mr Briggs that the Burra Charter is also relevant to our consideration. Addressing the issue of new work it states:

22.1 New work such as additions or other changes to the place may be acceptable where it respects and does not distort or obscure the cultural significance of the place, or detract from its interpretation and appreciation.

22.2 New work should be readily identifiable as such, but must respect and have minimal impact on the cultural significance of the place.

1. What is proposed is the demolition of a non contributory place, and replacement with a three storey building. We had evidence from four heritage experts each with their independent view of the proposed building. They all agreed on two aspects of the proposed development, firstly that the existing building could be demolished as it is of no heritage interest, and secondly that a three storey envelope is appropriate for the site. They disagreed on the architectural design intent of the building particularly to Maling Road and the form and detailing of the proposed building.
2. We need to make some comment regarding the evidence of Mr Briggs as we found it confusing and unhelpful. Mr Briggs was fundamentally opposed to the design intent of the building describing it as wrong and cartoon like. That is his view and we respect that. He was scathing in his assessment of the building, and was reluctant to acknowledge that an alternative view of the building's merits, could be legitimately held, notwithstanding that six other heritage, design and planning experts gave evidence in this case, four of whom are supportive of the proposal. The other two experts were critical of the proposal but did were less vehement than Mr Briggs in their criticisms. Mr Briggs presented his opinion evidence as a fact, about which there could be no debate or contrary view. Whilst it is the role of an expert witness to present their independent view, we found Mr Briggs' evidence unbalanced and confusing. His view was stoic, and his distaste for the building palpable, but then went on to recommend that it may be that Tribunal can see its way clear to issuing an interim order. Mr Briggs recommendations for changes to the design reinforced his general support for the general form, scale, height and composure of the building. His suggested changes incorporate detailed changes to the façade treatment, increased height of the façade treatment to match the model heights of the heritage buildings in Maling Road, the provision of the verandah across the retail frontage, and break down of the repetitious façade treatment and the unifying roof form. A more traditional residential form to the west of the building entry is preferred to the shop/dwelling terrace row currently proposed.
3. We find the level of change to the building incorporated in Mr Briggs' recommendations to be somewhat incongruous with his aggressive opposition to the fundamentals of the proposal expressed in his written evidence and his evidence in chief.
4. The identified heritage issues regarding the building and its impact on the heritage place include, the design intent, the interface to Maling Road in terms of setbacks, fencing and lack of integration directly to the street, the relationship with the adjoining dwelling 83 Mailing Road and the relationship with the commercial precinct of Maling Road. We will address each of these issues.

1. The proposed building presents as a two storey podium to Maling Road with an additional upper level at a setback to reduce the buildings scale to Maling Road. In terms of façade treatment to Maling Road, the two storey podium is articulated into a series of thirteen narrow bays. Along Maling Road, these will feature a modern interpretative architectural treatment that alternates between varying embossed representations of nineteenth century shops and traditional terrace houses, drawn from the façade images of buildings further east along the street within the precinct.
2. At the ground level, the eastern six shopfronts will be glazed, with the pedestrian entry to the apartment lobby in the central bay. At the first floor there will alternating recessed bays containing balconies, with retractable patterned screens along the façade boundary line that also provide a reference image in relation to historic detailing, when closed.
3. The facade treatment will be of tilt concrete slabs in varying grey, brown, sandstone and white tones that make reference to and interpret the facades of nearby Victorian shops to the east. The central bay will be finished in white and will have a raised parapet. The upper level set behind the podium will be finished in grey zinc toned cladding, reflective of a mansard roof.
4. The use of the perforated metal with its patterned screens is controversial. Mr O'Dwyer referred to the façade treatment and in particular the bay windows as a playful appearance and a modern interpretation of the bay windows in Maling Road. He further put that the materials and colours are contemporary materials that acknowledge and respond to the context but present the design as a considered modern response to the neighbourhood.
5. The Objectors put the submission that the building fails to respond to the heritage place, the use of the perforated metal and patterned screens is out of character and will detract from Maling Road. It was further put to us that the charm of Maling Road is that it hasn't seen significant change. The most recent development opposite the site comprises of single storey red brick shops which make no contribution to the heritage place of Maling Road. They are however regarded by objectors as a 'safe' option in that they are architecturally bland in the streetscape.
6. Clause 22.05 encourages good quality contemporary design and discourages the replication of historic forms and detailing. Mr Trethowan put to us that the use of faux heritage detailing will weaken the integrity of the historic streetscape and that replication of detailing is strongly discouraged within Boroondara.
7. We are comfortable with the architectural approach of the design. It is a contemporary approach and we accept the evidence of Mr Kavellaris, that the intent is provide a contemporary interpretation of new and old ideas. The appearance of the terrace form is to draw upon the terrace style of Maling Road. The design also serves to break down the site's 55 metre frontage to Maling Road.
8. We do not consider this proposed development a replication of heritage architecture. The design approach is interesting, innovative and calls on the buildings of Maling Road for its reference and inspiration. As Mr Raworth submitted, all infill development in a heritage context creates a divide of public opinion. This proposed building acts as a transition from the single storey residential nature of the western end of Maling Road to the two storey commercial nature of the eastern end of Maling Road. The proposal successfully achieves that transition in a contemporary manner and without resorting to traditional methods or replication.

1. The streetscape of the Maling Road (commercial end) is a visually cohesive precinct. With the exception of nos. 60-78 Maling Road being the most recent development, buildings are Victorian, Edwardian or Interwar buildings that have no setback, use concrete and glazing and often with verandahs. To the west of the site, is the Stationmasters Quarters being a single storey weatherboard dwelling. Further west is the residential area of Maling Road characterised by primarily single storey dwellings with front gardens and a leafy streetscape.
2. The proposed development is three storey but to the Maling Road streetscape will appear as a two storey building. With the exception of the restaurant frontages, due to the imagery on the perforated screens, the building will appear as an interpretation of a series of two storey terrace houses. This front façade has randomly placed pop out windows and the perforated screens are provided with openings to first floor balconies. The Maling Road streetscape uses a variety of setbacks commencing with 2.7 metres at the western end to mirror the adjoining dwelling, to a setback of 250mm at the eastern end to reflect the commercial buildings. There was debate about these setbacks and whether or not they were reflective of the area.
3. The setback to the west of the site at 2.7 metres to Maling Road is appropriate. It mirrors the adjoining Stationmasters Quarters and allows for a landscape area to west of the site and to the Maling Road frontage. This setback addresses the residential precinct.
4. The setback to Maling Road then reduces until it reaches 250mm at the western edge. It was suggested that this setback could be reduced to zero to reflect the shops to the west. There was no argument against reducing the setback and we are persuaded by Mr Trethowan that a zero setback for the commercial shops would respond to the prevailing character of the commercial area. Mr Trethowan further recommended that the introduction of a verandah to the restaurants would provide a further degree of façade articulation, would respond to the prevailing character of the commercial area and would also enable the facade to be further broken up, increasing the aesthetic interest of the building and reducing the visual bulk of the façade. Again, we are persuaded by Mr Trethowan that the building should include a contemporary verandah for the restaurants. We would not expect a traditional verandah evident within Maling road, but possibly a lighter contemporary structure.
5. We note the Permit Applicant did not object to these suggested changes and will require a zero setback and the introduction of a contemporary verandah to the commercial properties.
6. The proposed front façade of the commercial frontages proposes the use of digi glass to be a modern interpretation of the historic shops plinths (that is the tiles commonly used at the base of the shops). Again there was some criticism that this glass is out of place. Mr O'Dwyer however considered it playful and suggested that it be retained. We were able to view a sample of the "digi glass" which has brickwork etched into it. We are reluctant to 'tinker' with individual design elements which when taken together contribute to the building's overall design integrity. . The design of this building needs to be read as a whole, not as individual components. Therefore, we are persuaded by Mr O'Dwyer that the use of the digi glass is acceptable as it presents a contemporary base to the restaurant tenancies.

1. The upper level incorporates a mansard roof. The use of this roof form was criticised, as it is not evident in the immediate area. The mansard roof is visible from both the east and west. It is at its most visible when viewed from the east due to the low key height of the residential dwellings on Maling Road. The view from the west is less prominent due to the height of the existing buildings on the north side of Maling Road.
2. Mr Trewothan put to us that the mansard roof does not sit well in the precinct and will be a dominant element adding to the overall height of the proposal, particularly when viewed from Maling Road. We were further reminded that clause 22.05 addresses the issue of roof form and reads:

The roof form and the window and door proportions of new buildings and additions/alterations to non-contributory places should be similar too or sit well with the prevailing forms in the heritage precinct.

1. A mansard roof is not a roof form found within the immediate area and not commonly found within the broader one. Mr Raworth put to us that the mansard roof form is a roof form that was used in Melbourne during the Victorian period and is commonly used in heritage overlay precincts for both upper level additions and top level treatments to new buildings. He further added that policy invites a contemporary response and it doesn't require a roof to be identical to what exists within the area.
2. We accept that whilst the mansard roof is not commonly found within the Maling Road heritage area, we find that it is acceptable in this location. Clause 22.05 seeks new development to respect the cultural heritage significance of the heritage place, but this does not mean to imitate or replicate. The mansard will appear as a zinc roof reflective of the type of material used throughout the area. It will be at its most visible from the west due to the single storey nature of the residential dwellings in Maling Road. The view will be softened by landscaping as it matures over the years.
3. From the east it will be visible when viewed from a mid point in Maling Road. This view however is interrupted due to the two storey height of existing buildings on the north side of Maling Road. It is our view that the limited view of the roof will not detract from the Maling Road heritage significance.

1. The proposed development to Maling Road has limited fencing restricted to the western end of the building in front of unit 0.10. It was put to us that the fencing should be continued across the residential units 0.8 and 0.9. Mr Patrick proposes landscaping along the Maling Road frontage of units 0.8 - 0.10. We are not persuaded that a traditional picket front fence is necessary. This is not a typical residential development, therefore we do not find it necessary to replicate the notion of a garden front fence.
2. However, Ms Heggen suggested that a wall treatment be installed along the frontage in front of the elevated deck to apartment 0.8. The wall could return to form the 'west' arm of the pedestrian entry to the building and soft landscaping could be incorporated into this wall treatment. We find this to be an appropriate suggestion and will require this change.

1. The adjoining residential dwelling at 83 Maling Road is graded a Significant building in Council's Place Citation. It is known as the Stationmaster's Quarters. This Citation identifies the following architectural features of the house contributing to its significance:

..the double-T plan including two recessed entrance porches and the complex gabled roof; the corbelled brick chimneys; the six-over-six timber windows and surrounds; the triangular gable vents; any surviving four-panel external doors.

The current site of the house also contributes to its significance.

1. Clause 22.05 establishes policies when considering proposals that are adjacent to 'Significant' places including:
   • Ensure proposals are respectful of the existing scale, massing, form and siting of 'significant' or 'contributory' places in the heritage precinct, as these places are viewed from the street.
   • Ensure proposals are respectful of the context of adjacent 'significant' or 'contributory' places, the immediate streetscape and the heritage precinct as a whole.
   • Encourage good quality contemporary design and discourage the replication of historic forms and detailing.
2. The proposed building has been set back from Maling Road at 2.7 metres to mirror and sit comfortably with the setback of the Stationmaster's Quarters building. The proposed development is also setback off the western boundary a minimum of 3 metres at ground level and extending to 8 metres at the third level to ensure that the proposed building does not overwhelm or detract from Stationmaster's Quarters. We find that the proposal is successful in achieving this. It has opened up the south western corner of the site to ensure that the Stationmaster's Quarters will be read as its own building from all view points. Having regard to the policies identified above, the proposed development is respectful in its siting, massing and form having regard to its neighbour to the west.

1. We were provided with a document titled Visions of a Village, Canterbury Shops and Shopping 1880s-1990s, Don Gibb & Stuart Warmington. This document provides a history of the Canterbury Shops including Maling Road. It was provided to us to demonstrate how Maling Road is an important village to local and international visitors. What this document also demonstrates is that the centre has been the subject of several urban renewal plans and as noted in the Introduction of this document:

Throughout, the shopping and service centre remains a focus for residents to varying degrees, a place for necessary social interaction.

1. Why have we made reference to this document? We are aware that Maling Road is special to many members of the community. We are aware that it is the lack of change to Maling Road that the community values. However, areas do change and evolve. The application of the heritage overlay and policy allows for change. It allows for contemporary form and it does not encourage imitation or replication. The site is at the edge of the commercial precinct of Maling Road. It currently contains a nondescript industrial which makes no contribution to the significance of the heritage place. It is a site that can act as a transition point between the low scale residential area to the west and the higher forms in the commercial area. The proposal successfully achieves that transition. The use of the perforated screens with terrace house imagery is contemporary. The use of the random pop out windows and the ability for the balcony screens to open are design elements that provide movement and articulation to the façade treatment in a manner that respects the significance of the heritage place. We are satisfied that the proposed design achieves the purpose of clause 22.05 in that it promotes:

.......urban and architectural design which clearly and positively supports the ongoing significance of heritage places.

Is the proposal acceptable from a neighbourhood character perspective?

1. The neighbourhood character considerations are largely defined by the heritage buildings and precinct as discussed above. The issue of neighbourhood character and urban design was also assessed by Mr Czarny and Ms Heggen. Clause 22.07 of the planning scheme references the City of Boroondara Neighbourhood Character Study Precinct Statements, 2013 which places the site on the immediate north east edge of Precinct 45. Mr Czarny did not rely on the Precinct 45 statement in his evidence, Ms Heggen submitted that to rely on the statement would deny a contextual design approach and the Council's strategic planning referral in its assessment noted[14]:

As the property is located on the edge of this precinct [45], and has commercial development opposite and adjacent, direct translation of the preferred character for this precinct is not considered appropriate for this site, particularly given the site's relationship with the commercial centre.

1. It is agreed that the application of Precinct 45 preferred character statement must be applied cautiously and with due regard given to the site's precinct edge and commercial context. Whilst the site is zoned residential, it is clearly on the edge of the commercial precinct and has accommodated a non residential use for many many years.
2. Council and the Objectors submit that this proposal will not fit comfortably in this neighbourhood context because its height, scale, mass and bulk is unparalleled in the neighbourhood and will be dominant and overwhelming in the streetscape.
3. In terms of built form, the development takes its cues from the being a transitional site between the residential and commercial fabric of Maling Road. Mr Czarny submitted that the proposed development has the potential for a more robust presentation to Canterbury Station to the north, presents a commercial address in part to the east and address the residential qualities to the west. Mr Czarny however had the following concerns with the proposed development:
   • The proposal adopts a harsh streetscape profile. The proposed should be more diverse and broken down. Whilst the notion of borrowing the repetitive pattern of the Maling Road streetscape is conceptually acceptable, in the manner in which it has been simplistically extruded across the elevation of 55 metres is problematic.
   • The adoption of the imprinted façade language has failed to achieve a successful reaction to the existing streetscape context.
   • The buildings relative position abutting the embankment is problematic in terms of dwellings addressing the rail corridor.
4. The adjoining residential dwelling at 83 Maling Road, the Stationmasters Quarters house is a single storey weatherboard house. The proposed building is setback a minimum of approximately 3 metres at the ground level rising to a minimum of 8 metres to the third level. The overall height is approximately 10 metres. Visually, the proposed building will be clearly read as a three storey building from the adjoining dwelling at 83 Maling Road. The massing and height of the building however has been designed to respond to this adjoining dwelling as it is a recessed form increasing its setbacks as you move away from the boundary. It also uses a combination of materials including brick, render and zinc. Another interesting addition is the inclusion of a green wall, being the western wall of the proposed building.
5. The relationship and interface with the adjoining dwelling to the west is acceptable. The building will be visible, but due to the combination of setbacks and proposed landscaping, the impact of the western elevation is reduced.
6. As to the north elevation with the Canterbury Railway Station, we have no issue with the location of dwellings along railway lines. This is becoming increasingly common. The issue here is access to light and acoustic concerns which are addressed below. Mr Czarny submitted that whilst the upper levels are provided with winter balconies for protected amenity, the glazed screens mask an otherwise poor amenity outcome. Putting aside the issue of noise, the north elevation includes windows and winter gardens. The winter gardens are enclosed spaces to address noise issues. These spaces are north facing and extend from a living room. The ground floor sits lower into the ground with the railway embankment which then rises up 4.5 metres to the railway platform. We do not share the concerns of Mr Czarny with this north elevation. This elevation is more robust and simple in its detailing but provides randomly placed windows and a winter garden to maximise the access to the north elevation.
7. One of the characteristics of the residential fabric of Precinct 45 is the "green leafy" appearance of the area Whilst to the Maling Road frontage, the proposal provides limited landscape opportunities, due to the setbacks to the west of the building, the site provides a large area available for tree planting and garden.
8. On balance, we have concluded that the building does represent an acceptable built form response to the neighbourhood. Our conclusion is influenced by the following key aspects of the proposed building:
   • The setbacks to the west and north west corner of the site provide ample opportunity for meaningful landscaping to be provided. This landscaping includes canopy trees planted along the western boundary which in turn softens the appearance of the building to the west.
   • The upper levels of the building are recessed with each level.
   • The building form will primarily read as a two storey element to the Maling Road frontage.
   • The north elevation can accommodate a robust form being sited adjoining the railway reserve and platform.
   • The overall height of the building is not excessive. The third level will read as a roof element.
   • The site is 55 metres in width. The proposed development addresses this by breaking down the built form into 6 metre 'banks'. Some of the residential apartments (every second), is provided with a first floor balcony that is able to be openable. This openable balcony provides facade detailing and 'light and shade'. It is also worth noting our earlier observations about the benefits of the openable windows and balconies in the Maling Road façade. This feature provides movement and articulation in that façade, and overcomes the concerns expressed by some about the façade treatment adopting a "stark" appearance.

Will the proposal contribute to unacceptable off-site impacts?

1. The review site has one sensitive residential interface, being the dwelling to the west.
2. The impacts off the proposal on that dwelling are assessed as follows:

1. The level of overshadowing is acceptable and any impact to residential properties is confined to the morning period. The private open space of the adjoining residential dwelling to the west will achieve 5 hours of sunlight between 9 am and 3 pm on 22 September. The proposed overshadowing complies with Standard B21 of Clause 55.04-5.

1. The proposal presents very few little overlooking opportunities. The only issue in this respect would derive from the west elevation first floor balconies that have been appropriately screened to a height of 1.7 metres.

1. The review site has an abuttal with the railway to the north. The railway station entrance is a short distance to the east of the site.
2. The proximity of the railway line and the station is a feature of the site we have referred to previously which highlights the site's suitability for a development providing for increased residential densities. It is however also a site constraint in that it creates the potential for adverse noise impacts for future residents of any development of the site. This is a constraint to which a design must respond in order to ensure that the amenity of future residents is acceptable.
3. With respect to the acoustic treatment of the proposal especially in relation to the site's interface with the railway line, there is no dispute in this matter that the proposed dwellings can be suitably treated to achieve an acceptable level of internal amenity. The issue in dispute however relates to the inclusion of a permit condition that specifies an appropriate acoustic standard.
4. The applicant relied on the evidence of Mr Marks on this matter. It is Mr Marks' evidence that the condition ought to specify a level of 55dBA Lmax in bedrooms and 60dBA Lmax in living rooms. The Council submits that levels of 50dBA Lmax in bedrooms and 60dBA Lmax in living rooms.
5. It is Mr Mark's evidence that an internal noise level of 50dBA Lmax in bedrooms, is too low because compliance with this standard will necessitate "excessively high performance glazing" which will reduce noise intrusion from all sources and will result in very low internal noise levels. Consequently, noise transfer between apartments will become a significant issue and cause for greater complaints by occupants.
6. This is an issue that has been the subject of recent Tribunal decisions. In some cases, the Tribunal has adopted the lower (50 dBA Lmax) standard[15], while in other cases the higher (55 dBA Lmax) has been adopted[16].
7. In this case the Council's adopted standard replicates that imposed by the Tribunal in the Richmond Icon cases and the AWC Property Holdings referenced above. We note that Mr Marks gave evidence in each of these cases.
8. In this case, we have adopted the lower standard for a number of reasons. Firstly, Mr Marks acknowledged that the lower standard can be achieved without any significant alteration to the external appearance of the building, and no changes would be necessary to the design or layout of the building. Secondly, we are not persuaded that the lower standard is likely to lead to reduced internal amenity standards for residents because of increased noise transfer between apartments. It is counter intuitive to us that future residents would benefit from being exposed to a higher external noise source standard. Finally, we note that the Mr Marks acknowledged that both NSW and Queensland authorities have recently adopted a new standard of 50 dBA Lmax. We acknowledge Mr Marks' evidence that the NSW and Queensland standard does not necessarily equate to a 50 dBA Lmax in all circumstances, but it is his evidence that the standard is nevertheless more stringent than the 55 dBA Lmax recommended by him.

1. Council raised concern regarding borrowed amenity and limited open space to dwellings 0.8, 0.9 and 0.10. We do not share their concerns and make the observation that all living areas have direct access to natural light and ventilation. A total of 5 apartments rely on borrowed light and 8 apartments have bedrooms facing internal light courts. We consider this arrangement acceptable due to:
   1. The borrowed light apartments are north facing.
   2. The private open space provided to each apartment is 8 square metres or more.
   3. The internal light court measures 2.6 metres x 3 metres which exceeds Standard B27 and allows adequate daylight into new habitable room windows.
   4. The south facing ground and first floor balconies have bi-folding doors to maximise access to light and create an inside/outside space. The balconies are an extension of the living areas.

IS THE PROVISION OF CAR PARKING ACCEPTABLE AND ARE THE TRAFFIC MANAGEMENT ARRANGEMENTS ACCEPTABLE?

1. Two key concerns were raised regarding the proposed car parking and traffic arrangements of the proposed development including:
   • Is there adequate car parking provided?
   • Is the use of the existing right-of-way appropriate?

1. The proposed development has a statutory requirement of 76 car spaces under clause 52.06-5 of the planning scheme. A total of 44 spaces are provided in the form of the basement allocating 42 to residents and 2 to the restaurant spaces. There is a shortfall of 36 spaces including 6 visitor spaces and 30 restaurant spaces.
2. Council did not pursue the issue of traffic and car parking submitting that the amended plans had largely addressed these matters. The Council did however submit that the provision of car parking for the restaurants was not acceptable. The Objectors however raised more general and broad ranging concerns regarding the number of spaces provided and the access to these spaces.
3. Ms Dunstan undertook several parking surveys ranging from June 2012, May and October 2014. The survey times also ranged from 9am, 12 noon, 1 pm and 8pm to coincide with the expected peak times for residents/staff and visitors/customers. The areas surveyed also varied and included on-street parking and off-street parking which included a survey of the Council car parks.
4. The on street survey area including parking spaces up to 300 metres walking distance from the subject site. In summary, the results indicated that the peak demand for car parking was 1 pm on Friday 24 October when 70 vacant spaces were recorded within the survey area (137 parked cars, 66% occupancy).
5. The off street survey area included three car parks on the east side of Bryson Street, west side of Wattle Valley Road and on the west side of Bryson Street. The peak demand was recorded at 12 pm Friday 24 October when there was only 1% vacancy.
6. Having regard to the above, we make the observation that the Council car parks are at times heavily utilised. However, in considering the waiver of car parking for the visitor and restaurant spaces, we are persuaded it is appropriate for the following reasons:
   • The site is extremely well served by public transport including Canterbury Station and several bus routes.
   • Clause 52.06 requires the provision of one car space per one and two bedroom apartments and two car spaces per three bedroom apartments. The proposed development satisfies this requirement and provides car parking in accordance with this requirement within the basement. Parking is provided in the form of car stackers which are an acceptable method of providing parking in accordance with Design Standard 4: Mechanical parking [clause 52.06].
   • The demand for car parking during the evening is low. On Friday 24 October 2014 and Saturday 25 October 2014, there was only 5% occupancy of the Council car parks and 29% occupancy of parking on street along the commercial frontages. In other words, in the evening period, there were 98 spaces available within the Council car parks and between 38 and 47 spaces are available on street in front of the commercial properties, at this time.
   • The peak demand for the restaurant during the day for the Council car parks is high, but we agree with Ms Dunstan that there is a high proportion of trips to this centre that are likely to be shared, or multi purpose trips.
   • A total of 6 on-street car spaces will be available along the site's Maling Road frontage due to the removal of redundant crossovers (there is a net gain of 4 on-street spaces).
   • Two car spaces are allocated to the restaurant/commercial spaces, and these will be available for staff use.

1. At the conclusion of the hearing, we identified that the issue of access to the site i.e the use of the right-of-way, was one that required further response. We made an Order requiring the Applicant for Review to provide a written submission specifically related to the concerns identified by objectors about the safety and functionality of the proposed use of the right-of-way to provide vehicle access to the review site. We gave an opportunity for other Parties to respond.
2. We received a submission, as requested, from the Applicant for Review including a further statement prepared by Ms Dunstan, traffic engineer, a submission from Council as well as several submissions from Objectors. One Objector submission included a report prepared by Mr Robert Morgan, who is described as a traffic engineer.
3. Mr Morgan raises a number of issues in the report relating to the existence of a substation and gas meter, which will prevent access to the site during maintenance. Other issues related to ramp grades, sight lines, vehicle and trailer access, loading and unloading, traffic volumes in the lane and conflict points.
4. We have read and had regard to Mr Morgan's report, but we have not accorded it the weight of expert evidence. Mr Morgan's qualifications and experience have not been established, and his report and the opinions expressed in it has not been tested by cross examination.
5. We have proceeded to assess this issue having regard to the evidence of Ms Dunstan, and her supplementary report (which largely replicated the material in her witness statement), the submissions received and our inspection of the site.
6. The Objectors concerns regarding the use of the right of way for access include:
   • Safety implications of traffic using the existing laneway, particularly for the young and elderly pedestrians using Maling Road;
   • The width of the lane being insufficient to cater for the anticipated traffic and whether it should be widened by 3 metres;
   • The potential for conflict of the users of the basement car park and the shops/restaurants;
   • Sightline issue due to the existing shop and verandah located to the east of the laneway; and
   • The potential for conflict with other users of the laneway. Shops/restaurants receive deliveries within the laneway.
7. We note that the Council is satisfied that the proposal is acceptable with respect to these issues.
8. In considering this access arrangement, we make the following observations.
9. The existing laneway carries low traffic volumes, indicated by Ms Dunstan as a peak of 1 movement per hour. The expected development peak hour traffic volumes are:

1. We heard anecdotal evidence from shop owners about how the right-of-way is currently used. We heard details and had photographs of trucks and vans currently parking within the laneway and cars parking across the right-of-way access point. We have no doubt that these events occur and cause level of frustration fro users of the lane. Clearly, trucks and vans should not be preventing access to this right-of-way. The lane is a public accessway and shop owners should be discouraging this practice if the truck or van is visiting their premise. This situation however is an existing condition and is not contributed to by the proposed development. The resolution of these issues is a matter for the Council in terms of enforcing regulations about the use of the lane, and for the existing lane users. The resolution of these issues is outside the scope of this Tribunal, but we strongly urge that the Council and the lane users to work together to find a solution for this issue. The other preventative measure which again is outside the scope of this Tribunal is for the Council to provide a loading bay in this western end of the shopping precinct.
2. Our assessment of this proposal must focus on the extent to which the proposed access arrangements are acceptable and can be achieved without unreasonably disrupting traffic management in the area, or creating unacceptable pedestrian and vehicle safety issues.
3. Ms Dunstan in her evidence highlighted clause 3.2.3 of AS28901-2001 which provides guidelines for the provision of passing areas along low volume driveways and connecting roadways. This provides some guidance on determining the need for a vehicle passing area where an accessway connects to a local street. The relevant clause states[17]:

As a guide, 30 or more movements in a peak hour (in and out combined) would usually require provision of two vehicles to pass on the driveway, (i.e a minimum width of 5.5m).

1. Beyond this level of vehicle movements, there is a requirement for passing areas to accommodate simultaneous two-way traffic.
2. The proposed development is expected to generate approximately 16 vehicle trip ends per peak hour and approximately 140 vehicle trip ends per day. It was Ms Dunstan's evidence that in accordance with the relevant standard above, there is no traffic engineering standard or reason the laneway should be widened by 3 metres to accommodate a passing bay. We accept that in the event that passing is required, cars exiting the car park would generally be expected to give way to vehicles entering the site with passing occurring on-site. Ms Dunstan put that where conflict potentially occurs near Maling Road, an entering vehicle would be momentarily delayed as a vehicle exits onto Maling Road. Ms Dunstan emphasised that because of the low volumes involved, these would be rare occurrences.
3. We are persuaded that the proposed arrangement is acceptable largely due to the fact that the basement provides car parking for residents, with the exception of the two restaurant spaces. We accept that residents of the development are likely to become familiar with the access and egress arrangements, a circumstance which might not apply if the car park was used by irregular patrons or visitors.
4. The issue of sight lines from the right-of-way was highlighted. The draft conditions included a requirement for a pedestrian sight triangle of 2.5 metres by 2.0 metres on the south east corner of the building (or south west corner of the right-of-way). Ms Dunstan put that a sight triangle cannot be provided on the south east corner of the right-of-way due to the position of an existing building. We note that the Objectors submit that a sight triangle could be provided by widening the right-of-way to 7 metres. The proposed access using the right-of-way is not uncommon within older strip shopping centres. Given that the right-of-way is to provide access to primarily residents car spaces, we accept the evidence of Ms Dunstan that a sight triangle be provided on the south east corner of the building and will further include a condition which requires the implementation of traffic management measures such as a convex mirror to the satisfaction of the Responsible Authority. Subject to the imposition of appropriate conditions we are satisfied that the proposed access and egress arrangements are acceptable.

1. We further note the concerns of the Objectors regarding the potential conflict of pedestrians and cars along the Maling Road frontage.
2. We have addressed above issues around the provision of sight lines and other measures aimed at ensuring that vehicles and pedestrians are visible to each other. We also make the observation that prior to the closure of the previous use of the site, there was a crossover providing vehicle access to the commercial use of the site. While the access arrangements for this proposal will be different, this is not a case in which vehicle access and egress should be regarded as a surprising or unexpected occurrence.
3. The issue of trucks being able to access the basement including when residents move was raised both by the Tribunal and residents. We were advised that 'removal trucks' would be too large to access and would be required to park on-street. This is acceptable (if not ideal) and is a common arrangement with apartment buildings. The reliance on on-street deliveries does reinforce the need for to consider providing a loading bay to be located in this western end of Maling Road.
4. The Objectors expressed concern about the adequacy of the rubbish collection arrangements, including the design of these facilities. Ms Dunstan's evidence detailed how rubbish collection will occur inside the basement of the building. This included swept path diagrams detailing how a rubbish collection trucks of less than 6.4 metres is accommodated. We have also imposed a condition requiring a waste management plan to be prepared and submitted providing details of how loading and rubbish collection will occur to the satisfaction of the Council.
5. The practicality of the use of car stackers was raised. We do not share this concern. Car stackers are a legitimate form of car parking, are common within apartment buildings and Design Standard 5 of clause 52.06 recognises that mechanical parking may be used to meet the car parking requirement subject to compliance with certain standards.

1. We raised the issue of how to ensure the quality of the design, particularly in accordance with the evidence of the Architect Mr Kavellaris and Mr O'Dwyer who submitted in evidence that the Architect should see the project through to the end to ensure that the design intent of this project is maintained and not eroded in any way.
2. There are limitations on the capacity of the Tribunal or the Responsible Authority to facilitate this outcome. There are decision that will be made by the permit holder about the development of this site that neither the Council nor the Tribunal can legitimately influence. To the extent that permit conditions can play a role in achieving this outcome, conditions that are not commonly applied on planning permits should be contemplated in this case.
3. There are two ways of achieving this outcome. Firstly, a requirement that any changes to the design can only be approved by the Tribunal under Section 87A of the Planning and Environment Act 1987, could be considered. Secondly, consideration can be given to requiring a condition be imposed to requiring the Architect to remain on the project to oversee the design outcome.
4. On occasion, the Tribunal has determined that a condition requiring the supervising Architect to remain on the project for the 'life of the project' including the design and construction has been included. In Colquhoun[18], the Tribunal required the architect to be included to complete the design and provide architectural oversight of the delivery of the detailed design.
5. We find that this case is a special circumstance and warrants the ongoing involvement of the project Architect Mr Kavellaris. The Permit Applicant placed great emphasis on the design and materials used within the proposed development. This is a sensitive location and sensitive to the community. It is therefore considered reasonable to include a condition requiring the ongoing involvement of Mr Kavellaris and/or his firm for the life of the project. We note that the Permit Applicant offered no objection to this and we will include the following:

The detailed final design, contract administration and construction supervision must be undertaken by or under the supervision of Mr Bill Kavellaris of KUD Architects. This condition can only be amended by the Victorian Civil and Administrative Tribunal.

1. The decision of the Responsible Authority will be set aside and a permit issued subject to conditions.

• Demolition of an existing building and construction of buildings and works in the Heritage Overlay;
• Construction of more than two dwellings within the Neighbourhood Residential Zone Schedule 3;
• Construct a building and use of building for restaurant within the Neighbourhood Residential Zone Schedule 3;
• Waiver of visitor car parking;
• Reduction in car parking requirement for restaurant and;
• Waiver of loading bay requirement

generally in accordance with the endorsed plans and subject to the following conditions.

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 plans prepared by Kavellaris Urban Design bearing Project No. 12-00005 Sheets TPOI-TPI5 (all bearing date of 6 October 2014) but modified to show:
   • (a) The front setback of the commercial shops located in the eastern end of the development is reduced to zero.
   • (b) The inclusion of a low wall treatment infront of apartment 0.8 on the Maling Road frontage.
   • (c) The details of the stacker models notated on the basement plan.
   • (d) A swept path analysis to show that vehicles may ingress and egress space 11 satisfactorily.
   • (e) Suitable traffic management measures included to minimise conflicts on the ramp or within the laneway and regulating ingressing/egressing vehicles. This may be in the form of traffic signals, convex mirrors or another measure. This system should give priority to vehicles entering the site, to prevent vehicles queuing on the ROW.
   • (f) A pedestrian sight triangle of 2.5m (measured along the driveway edge) by 2.Om (measured along the site boundary) provided on the south-east corner of the building. ,
   • (g) A weather protection canopy over the front of the restaurant tenancies to the east of the pedestrian entry to the apartment building.
   • (h) Further details and specifications of the perforated metal façade material including level of transparency.
   • (i) Any modifications to the exterior of the building necessitated by the report of the professional acoustic engineer referred to in condition #.
   • (j) Incorporation of bicycle spaces along Maling Road in front of the development (subject to Council consent).
   • (k) Any modifications to the building necessitated by the ESD report referred to in condition #.
   • (l) The location and specifications of all external plant and equipment (including roof top plant and equipment).
   • (m) A car parking space allocation schedule.
   • (n) The location and specifications of all letter boxes.

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 (unless the Boroondara Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.

1. A landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plan must be drawn to scale with dimensions and three (3) copies provided. When endorsed, the plan will form part of the permit.
2. The landscape plan must be generally in accordance with the landscape concept plan attached to the statement of evidence of John Patrick bearing date November 2014 tabled with the Tribunal in proceeding no. P54/20 14 but modified to show:
   • (a) A planting schedule of all proposed trees, shrubs and ground covers including botanical names, common names, pot sizes, sizes at maturity and the quantities of each plant;
   • (b) A fence of no greater than 1.2 metres in height along the Maling Road frontage of dwellings 0.8, 0.9 and 0.10.

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

1. Car parking spaces shown on the endorsed plans must not be used for any purpose other than the parking of vehicles, to the satisfaction of the Responsible Authority.

1. 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.

1. 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:
   • (a) Properly paved and drained to a legal point of discharge;
   • (b) Screened from view with a suitably designed enclosure;
   • (c) Supplied with adequate hot and cold water; and
   • (d) Maintained in a clean and tidy condition free from offensive odours

to the satisfaction of the Responsible Authority.

Waste management plan

1. 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 waste recyclables collection service for the subject land including:
   • (a) type/s and number of waste bins;
   • (b) screening of bins;
   • (c) type/size of trucks;
   • (d) frequency of waste collection;
   • (e) location of collection points within basement;
   • (f) hours of waste collection;
   • (g) details of recycling facilities;
   • (h) the prohibition of the storage of waste bins (including those waiting to be collected) outside the curtilage of the building;

to the satisfaction of the Responsible Authority.

Construction management plan

1. Prior to the commencement of any site works a construction management plan to the satisfaction of the responsible authority must be submitted to and approved 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:
   • (a) Hours for construction activity in accordance with any other condition of this permit;
   • (b) Measures to control noise, dust, water and sediment laden runoff;
   • (c) The location and design of a vehicle washdown bay for construction vehicles on the site;
   • (d) 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;
   • (e) Measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the construction management plan;
   • (f) Contact details of key construction site staff;
   • (g) The location of any site sheds and the like. All site sheds (or similar structures) in association with the development must be located within the property confines;
   • (h) Specifications of all trucks and truck movements to ensure that trucks and other vehicles associated with construction activity cause minimum disruption to surrounding premises and traffic flows in surrounding residential streets;
   • (i) The protection of the mature trees on 83 Maling Road that are located near the boundary with the subject site;
   • (j) Protection of the VicTrack land and embankment located to the north of the subject site; and
   • (k) Any other relevant matters.

1. All works including earthworks, demolition and construction activity associated with the approved development must take place only during the following hours, except with the prior written consent of the Responsible Authority:
   • Monday to Friday: 7:00am to 6:00pm
   • Saturday: 8:00am to 5:00pm
   • Sunday & Public Holidays: No construction

1. The amenity of the area must not be adversely affected by the use and development as a result of the:
   • (a) Transport of materials, goods or commodities to or from the land; and/or
   • (b) Appearance of any building, works, stored goods or materials; and/or
   • (c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, ash, dust, waste water, waste products, grit or oil; and/or
   • (d) The presence of vermin; and/or
   • (e) or in any other way, to the satisfaction of the Responsible Authority.

1. The restaurant use allowed under this permit must operate only during the following hours, except with the prior written consent of the Responsible Authority:
   • Monday to Sunday - 7am - 10.OOpm

1. No more than 40 seats are to be made available at any one time to each of the 2 restaurants' patrons without the prior written consent of the Responsible Authority.

1. Loading and unloading of vehicles is only permitted to occur at the following times:
   • Monday to Friday: 7:00am to 10:00pm
   • Saturday & Public Holidays: 9:00am to 10:00pm
   • Sunday: No loading or unloading allowed

to the satisfaction of the Responsible Authority.

Acoustic treatment

1. Before the plans are endorsed, an acoustic report prepared by a suitably qualified acoustic engineer must be submitted to and approved by the Responsible Authority. The report must prescribe the form of acoustic treatment to:
   • (a) protect all dwelling occupants from external noise sources with specific regard to Maling Road and off-site commercial areas;
   • (b) protect all dwelling occupants from external noise sources associated with the abutting rail system to achieve an internal noise level of 50dB Lmax in bedrooms and 60dBA Lmax in living rooms and to achieve internal structure-borne vibration induced noise levels not exceeding 40dBA in bedrooms and 50dBA in living rooms;
   • (c) the carstackers, mechanical plant equipment and ventilation mechanisms installed or constructed as part of the development; and
   • (d) ensure compliance with SEP N-1.
2. When two months of all the uses commencing an updated acoustic report prepared by a suitably qualified acoustic consultant must be submitted to the satisfaction of the Responsible Authority demonstrating that the required level of noise attenuation has been achieved in accordance with condition # of the permit or, if not, what works must be undertaken to achieve the required level of noise attenuation.
3. The recommendations contained in the approved acoustic reports pursuant to conditions 18 and 19 must be implemented and completed and where they are recommendation of an ongoing nature, must be implemented and maintained to the satisfaction of the Responsible Authority.

1. Before the development starts, the owner/developer must submit to the Responsible Authority an environmental site assessment report prepared by a suitably qualified environmental professional in accordance with the Potentially Contaminated Land General Practice Note (Department of Sustainability & Environment June 2005) to the satisfaction of the Responsible Authority. The report must include recommendations as to whether the condition of the land is such that remediation works/management measures are required and whether an Environmental Audit should be conducted, taking into consideration the proposed use. The owner/developer must comply with the findings of the site assessment to the satisfaction of the Responsible Authority including, if required, the preparation of an Environmental Audit.
2. The following works can be carried out before the requirement in Condition No. I is satisfied:
   • (a) Buildings and works that necessarily form part of the environmental site assessment process, and
   • (b) Building and works that the environmental professional engaged by the owner/developer advises must be carried out before an environmental site assessment can be prepared.
3. If pursuant to Condition No. I of this permit an Environmental Audit is required, then before the development starts either:
   • (a) A Certificate of Environmental Audit for the land must be issued in accordance with Section 53Y of the Environment Protection Act 1970 and provided to the Responsible Authority; or,
   • (b) An Environmental Auditor appointed under Section 53S of the Environment - Protection Act 1970 must make a Statement in accordance with Section 53Z of that Act that the environmental conditions of the land are suitable for the use and development that are the subject of this permit, and that Statement must be provided to the Responsible Authority.
4. Where a Statement of Environmental Audit is issued for the land, the buildings and works and the use(s) of the land that are the subject of this permit must comply with all directions and conditions contained within the Statement, to the satisfaction of the Responsible Authority.

1. Before the plans are endorsed, a report prepared by a suitably qualified and experienced Environmental Sustainable Design expert must be submitted and endorsed to the satisfaction of the Responsible Authority. The report shall address the ESD principles proposed for the site including but not limited to, energy efficiency, water (retention, storage and use), waste and recycling, building materials, landscaping, crossflow ventilation, passive climate control through enclosed winter gardens/louvers and balcony overhangs, centralised floor boosted hot water system, energy and water efficient appliances and high thermal performance building skin.

1. The detailed final design, contract administration and construction supervision must be undertaken by or under the supervision of Mr Bill Kavellaris of KUD Architects. This condition can only be amended by the Victorian Civil and Administrative Tribunal.

1. This permit will expire if:
   • (a) The development and use 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.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

[1] We have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. We do not recite or refer to all of the contents of those documents in these reasons. .

[2] Global Alpha Group Pty Ltd v Boroondara CC [2013] VCAT 1929 (18 November 2013).

[3] Plan Melbourne: Metropolitan Planning Strategy (Department of Transport, Planning and Local Infrastructure, 2014).

[4] The Council has exhibited a planning scheme amendment C195 that proposed to introduce a Design and Development Overlay (DDO) over the review site and the Maling Road shopping centre. It also proposed to rezone the review site to General Residential. We are advised however that following exhibition, the Council on 20 October 2014 resolved to remove the review site from the Amendment. The Minister for Planning has appointed a Panel to consider submissions received to the amendment. At the time of the making of this decision, the Panel had delivered its report to the planning authority (the Council).

We have proceeded in our consideration of this application on the basis that the amendment does not apply to the review site.

[5] Mr Rantino referred in particular to: The Town Hall Consulting Group Pty Ltd v Bayside CC [2014] VCAT 1146, 360 New Street Brighton v Bayside CC [2014] VCAT 1322.

[6] The transitional provisions were introduced into the new residential zones by Amendment VC104 on 22/0813. The explanatory report which is part of the approved documentation of the amendment states that the transitional provisions were introduced in response to a recommendation of an Advisory Committee on the new residential zones, and are intended to ensure that existing applications would not be disadvantaged by the new provisions included in the new residential zones and the consequential changes to Clause 55 applying to four storey residential development.

[7] [2014] VCAT 1322

[11] Clause 16.01-2 Location of residential development

[12] Plan Melbourne. Glossary. Page 197.

[13] Clause 10.04 Integrated Decision Making.

[14] Page 19 of the Officer's Report to Council.

1. [15] See for example_: Richmond Icon Pty Ltd v Yarra CC_ [2013] VCAT 298, VCAT Ref. No. P339/2012 ACCC Pty Ltd Trading as AWC Property Holdings Pty Ltd v Yarra CC (9 August 2012), Richmond Icon Pty Ltd v Yarra CC (includes Summary) (Red Dot) [2011] VCAT 2175.

[16] See for example: Lend Lease Apartments (Armadale) Pty Ltd & Larkfield (Orrong Road) Pty Ltd v Stonnington CC [2012] VCAT 906 at [46].

[17] Extract from Ms Dunstan Traffic Evidence, page 30.

[18] Colquhoun & Ors v Yarra CC [2010] VCAT 1710 (21 October 2010).