Ausvest Pty Ltd v Stonnington CC & Ors [2001] VCAT 2452 (20 December 2001)

Planning; Section 77 Planning and Environment Act ; Review of a decision to refuse to grant a permit; Stonnington Planning Scheme; Residential 1 Zone; Clause 32.01-4; Construct 37 dwellings in a 3 and 4 storey building with basement parking for 115 cars; clause 22.02 Urban Design Policy; Neighbourhood character, Visual bulk; Privacy and overlooking; Retention of existing trees; Whether the Clause 52.04 transitional provisions for ResCode apply when an application for permit is amended under Clause 64 of Schedule 1 of Victorian Civil and Administrative Tribunal Act

[2001] VCAT 2452

1. The permit applicants are directed to advise the Tribunal in writing, within ten business days from the date of these directions, with copies to all other parties or their legal representatives, whether they are prepared to amend the plans dated August 2001, prepared by Demaine Partnership Pty Ltd (numbered PO1a, PO2a, PO3a, PO4a, PO5a, PO6a, PO8a, PO9a, P10a, P11a, P14a, P15a), and the landscaping plan prepared by John Patrick Landscape Architects (numbered 00-058L-TP), to show:

(a) additional screening devices, whether planter box, obscure glazing or other type to:

(i) Apartment 1.13 south facing window to Study and 2nd bedroom;

(ii) Apartment 1.14 south facing window to Bedroom 2;

(iii) Apartment 2.10 terrace, extending eastward of existing planter to west side of car park ventilation riser;

(iv) Apartment 2.06 terrace eastward of the existing planter and to that terrace's ultimate edge;

(v) Apartment 1.07 or 2.05 terrace for Aldor???????? (offered by Morris QC)

(b) Any necessary alterations to the basement and a footings design for the ground floor communal lounge to ensure protection of the Algerian oak's root system and its retention on the north western boundary of the site. To this end, the basement storage area can be replaced by removing tandem car spaces;

(c) in order to achieve a greater degree of articulation to the northern façade of Pavilion D, the creation of a generous recess at ground, first and second floor levels, by:

(i) on the ground and first floors, pulling back the external northern walls to the family/meals and lounge/dining rooms of Apartments G.06 and 1.06 by a depth of 3.5 metres;

(ii) on the second floor, pulling back the north facing terraces and external walls to the lounge/dining and meals area to Apartment 2.04 by a depth of 3.5-4 metres.

(d) The correction of Section L to reflect retention of the existing retaining wall 2 metres from the boundary;

(f) The provision of a schedule of building materials, finishes and colours (including the fencing around the site);

(g) The general location of external plant and equipment (including air-conditioning units, heating units, water tanks and exhaust stacks);

(h) the finished height of the belvedere located between Pavilions D and E;

(i) the finished height of fences to be constructed around the boundary of the site.

(i) the retention of the Lilly-pilly (Tree 29 on John Patrick tree survey) located near the Pin oak in the south-east corner of the site;

(ii) the retention of all melaleuces styphelioides on the south-western boundary of the site;

(iii) the retention of the Algerian oak (tree 16 on John Patrick tree survey);

(iv) Revised landscaping along the western boundary to accommodate retention of the Algerian oak and the stand of melaleuca styphelioides;

(v) the addition of generous canopy planting adjacent to the recess to be created in Pavilion D, in order to soften, break up and screen the bulk of Pavilion D;

2. In the event that the applicants agree to accept the Tribunal's invitation to prepare amended plans, such plans must be filed with the Tribunal, with copies served at the same time on all other parties or their legal representatives, within one month of the date of acceptance or such further period that the Tribunal may allow upon the written request of the applicant.

3. The written submissions of any other party in relation to the amended plans must be filed with the Tribunal and served on the permit applicant within 15 business days from the receipt of the plans.

4. The permit applicant may provide a submission in reply provided this is filed with the Tribunal and served on the other parties or their legal within 5 business days from receipt of those comments.

5. Unless any party requests that this application be re-listed for hearing, the Tribunal, on receipt of the plans, submissions and submissions in reply, will proceed to make a final determination.

6. General liberty to apply is granted to all parties.

_____________________________ ______________________________

For the Applicant For Review: Mr Stuart Morris QC with Mr Ian McP Pitt SC, instructed by Best Hooper, Lawyers They called the following persons to give evidence:

* Mr Timothy Biles, Consultant Town Planner with Contour Australia Pty Ltd;

* Mr Michael Barlow, Consultant Town Planner with Urbis Pty Ltd;

* Mr Des Grogan, Traffic Engineering Consultant with Grogan Richards Consulting Engineers;

* Mr John Patrick, Landscape Architect with John Patrick Pty Ltd;

* Mr Tom. Greenwood, Arboricultural Consultant with The Tree Works Co Pty Ltd

For the Responsible Authority: Mr John Rantino, Solicitor of Maddock Lonie and Chisholm, Lawyers.

For the Respondent Objectors: Mr Robert Osborne QC, with Ms Michelle Quigley of Counsel, instructed by Holding and Redlich, Lawyers. They called the following persons to give evidence:

* Ms Catherine Heggen, Town Planner with Fulcrum Town Planners Pty Ltd;

* Mr Robert Galbraith, Arboricultural Consultant with Galbraith and Accociates.

1. This was an application under section 77of the Planning and Environment Act 1987 to review a decision by the Stonnington City Council to refuse to grant a permit, in permit application No 0108/01.

2. The application sought permission, pursuant to Clause 32.01-4 of the Stonnington Planning Scheme, to construct thirty seven dwellings in a three and four storey building over basement car-parking for 115 cars (87 bays plus 20 tandem bays plus 8 self contained visitor spaces) at 29-31 St Georges Road, Toorak.

3. Following the giving of notice of the application 152 objections were received. The grounds for objection were summarised in the officer's report to council as:

4. At its meeting of 18 June 2001 the responsible authority considered the application and, consistent with its officers' recommendation, determined to refuse a permit on the following grounds.

4. During the hearing it was brought to the attention of the Tribunal that Member Komesaroff and one of the sons of one of the objectors knew of each other. As there was no social relationship, Member Komesaroff was not embarrassed by remaining on the Tribunal and Mr Morris took no challenge to her remaining.

5. The subject land is occupied by an unfinished French Chateau style mansion. It's construction commenced following the previous owner's purchase and consolidation of two, large former home sites. The expense of this modern day mansion proved too great, and after more than $5 million had been spent, the property was sold by the receiver to the current owner ten years ago.

6. Later, in 1993, a permit was issued at the direction of the then Administrative Appeals Tribunal in Appeal No.92/668 Austvest HoldingsPty Ltd v Prahran City Council (unreported) to subdivide the land into 9 lots ranging in area between 500sq m and 1300sq m.

7. The nine lot subdivision was typical of the changing palimpset (parchment) of Toorak - not unlike the pattern that developed in the 1970's when mansion sites were subdivided. The permit has since expired.

8. In the meantime, the land has stood forlorn, unloved and undeveloped.

9. We think the following extracts describing the site and its context, and which are taken from Mr Barlow's witness statement, provide a useful description:

The site ... is located on the west side of St Georges Road, between Ultimo Court and Tahara Road.

The site has two street frontages. The first and principal frontage is to St Georges Road. The second ..is at the rear of the site to The Lane.

In general terms, the site is a regular shape with the frontage to St Georges Road measuring 61 metres, the frontage to The Lane measuring 67.1 metres and a depth of 116 metres. The overall site area is 7256 square metres....

The site slopes from east to west, with a fall of approximately five metres from St Georges Road to The Lane.

At present, a large and incomplete mansion occupies the site. The mansion varies from two to four storeys in height and is located towards the centre of the site. It is set back 24 metres from St Georges Road, a minimum of 13 metres from the north boundary and not less than 10 metres from the south boundary. At the time of construction of the mansion, significant earthworks were undertaken close to the south boundary of the site....

Existing vegetation is generally restricted to the perimeter of the site and, more particularly, the east and west boundaries. Of note is a group of trees at the south-east corner of the site.

Vehicle access is available via an existing crossover from St Georges Road, and at the rear of the site....

There are a number of established street trees along the frontage to St Georges Road.

The site is located in a prestigious and much sought after residential area of Toorak, close to a diverse range of retail, educational, sporting and recreational facilities....

The area is well serviced by public transport. A bus route runs along Orrong Road, to the west of the site. There is also a tram service along Toorak Road that provides access to the CBD and other suburbs. Finally, Heyington Station is located approximately 400 metres from the site.

The neighbourhood typically comprises large double storey dwellings with generous front setbacks. There are however examples of more modest homes, as well as multi-storey apartment buildings. These buildings tend to be located closer to the street frontage and side and rear boundaries. Architectural styles vary considerably. Canopy trees in established front gardens and along the street are an important and unifying element of the neighbourhood character.

The immediate property interfaces of the site are described below.

Eight villa units are located to the north of the site, at 33 St Georges Road. These units range from one to two storeys in height, and are of rendered masonry construction with pitched tile roofs. The units flank the north boundary of the property with a common driveway running almost the entire length of the south boundary, adjacent to the site. Well manicured shrubs and small trees line the south side of the driveway.

The development is set back 4.4 metres from St Georges Road and at least 8.9 metres from the common side boundary. This excludes Unit 8 at the rear, which is set back only 5.0 metres from the site.

Small pockets of private open space are provided on the north side of the units. A two metre high fence runs along the street frontage...

Three properties have abuttal to the south boundary of the site.

The first of these properties is 27 St Georges Road, or the Smorgon property. This property fronts St Georges Road, extending along the south boundary of the site for a distance of approximately 70 metres.

The front part of the property is occupied by a double storey dwelling. The dwelling is of painted brick construction with a pitched slate roof. The front façade of the dwelling is masked by a creeping vine.

The dwelling is set back approximately 9.3 metres from St Georges Road and a minimum of 4.8 metres from the common side boundary. This excludes a small single storey adjunct that is built to the boundary. A roof-top terrace is provided above this room.

There are a number of habitable room windows on both the ground and first floors that face the site.

The dwelling is currently subject to substantial renovations. In addition, a high brick wall is being constructed along the front boundary to replace the previous fence.

A large area of private open space is located at the rear of the dwelling. This area comprises two discrete elements. The first part, immediately adjacent to the dwelling, comprises an in-ground swimming pool flanked to the north, south and east by garden areas. A number of large trees are located along the north and south boundaries, effectively enclosing the area. The second part, to the west of the swimming pool, consists of a north-south tennis court. The tennis court is built almost to the common side boundary. Minimal landscaping is provided along this interface.

At the rear of Smorgon property, still to the south of the site, is 5 Tahara Road. This property is occupied by a double storey, painted brick dwelling with a pitched tile roof. A high brick fence is provided along the street frontage.

The dwelling is set close to Tahara Road and, thus, separated from the site by some 26 metres. An area of private open space is located behind the dwelling. This area includes an in-ground swimming pool immediately adjacent to the dwelling, and a number of large trees.

Vehicle access to the property is provided from The Lane via the carriage easement.

The final property abutting the south boundary of the site is 3 Tahara Road. This property has frontage to both Tahara Road and The Lane. Three and six storey flats dating from the early 1950s occupy the property. The flats are of painted brick construction with a flat roof.

The six storey component of the flats is sited close to Tahara Road while the curved, three storey component extends along The Lane to the south boundary of the site (and the carriageway easement). Numerous windows have a direct outlook to the site.

A two storey building with garages at ground level adjoins the east boundary of the property. Access to the garages is provided from either Tahara Road or the carriageway easement. Several carports abut the easement.

The Lane abuts the west boundary of the site. It is approximately 6.0 metres wide and runs from Tahara Road to the intersection of St Georges Road and Lansell Road. There are no footpaths or street trees. The street is akin to a service lane, providing two-way vehicle access to the rear of properties mostly facing St Georges Road and Lansell Road. Due to the width of The Lane, there is no provision for on-street parking.

Two properties are located on the west side of The Lane, opposite the site.

The first of these, the Besen property, extends from The Lane to Lansell Road (and is thus addressed as 24 Lansell Road). The dwelling on this property is located some considerable distance from The Lane.

The rear of the property is effectively enclosed by vegetation. Dense vegetation runs along the north boundary, screening the flats at 30 Lansell Road. Dense vegetation is also provided at the south-east corner of the property. This vegetation screens flats to the south and east.

High paling fencing is provided along the rear boundary, adjacent to The Lane. A north-south tennis court is located just within this fence. It is enclosed from The Lane by high cyclone wire fencing that is thickly covered with a climber. The fence extends to an approximate height of 5.0 metres above the level of The Lane. To the south of the tennis court, there is a gate providing vehicle access from The Lane. Several large trees are located further south.

To the north of the Besen property, still on the west side of The Lane, is a two storey apartment building with undercroft car parking. The building is set back approximately 2.6 metres from The Lane. A number of habitable room windows on both floors of the building face the site....

10. The following description of the proposal, is also taken from Mr Barlow's witness statement:

* The apartments will be configured in five linked pavilions. The arrangement of the pavilions on the site will resemble, in plan view, an `H'. Two pavilions (known as Pavilions A and B) will be located at the front of the site, facing St Georges Road. Another two pavilions (Pavilions D and E) will be located toward the rear of the site, adjacent to The Lane. The final pavilion (Pavilion C) will be positioned at the centre of the site.

* The four outer pavilions will be three storeys in height. The fifth pavilion at the centre of the site will extend to four storeys.

* Pavilions A and B will be set back from St Georges Road at least 8.4 metres and 7.0 metres respectively.

* The minimum setbacks of Pavilions D and E from The Lane will be 5.0 metres and 3.8 metres respectively.

* The ground level setbacks of the development from the south boundary will range from a minimum of 5.0 metres (Pavilions A and E) to a maximum of 13.2 metres (Pavilion C).

* Similarly, the ground level setbacks from the north boundary will vary from a minimum of 4.5 metres (Pavilion D) to a maximum of 15.3 metes (Pavilion C).

* Pavilions A and B will each comprise five apartments. Both pavilions will consist of two apartments on the ground and first floors, and a single apartment (or penthouse) on the second floor.

* The centrally located Pavilion C will comprise 13 apartments. The ground, first and second floors will each contain four apartments. A single penthouse will occupy the third floor.

* Pavilions D and E, at the rear of the site, will each contain seven apartments. The ground floor of both pavilions will include two apartments plus communal facilities. A shared lounge, library and kitchen will be provided as part of Pavilion D. Pavilion C will feature an indoor swimming pool and associated facilities. The first floor of each pavilion will consist of three apartments, with the second floor containing two apartments.

* The apartments will range in size from 174.1 square metres to 595.3 square metres. Each apartment will contain large formal and informal living areas with, on average, two bedrooms and a study.

* Private open space will be provided in the form of ground level courtyards, and upper-storey terraces and balconies. Some apartments will have more than one area of private open space. Most apartments will boast an area of north-facing private open space.

* Pedestrians will access the pavilions at ground level via a series of connected arcades. These arcades will form a `spine' of space that extends from St Georges Road almost to The Lane. The focus of this space is the centrally located atrium.

* A total of 115 car spaces will be provided below ground. 107 of these spaces will be allocated to residents, with the remainder available for use by visitors. Each apartment will have direct and secure access from the basement via lifts and stairs.

* Vehicle access to the development will be provided from St Georges Road, near the north boundary of the site. The crossover to the basement will be sited between existing street trees.

* Access to the development from The Lane will be restricted to pedestrians.

* The development will incorporate a centralised waste collection system that has convenient access to The Lane.

* The materials and finishes of the development will include brick, stone and rendered surfaces. The roof will be constructed of slate and pitched at 30 degrees.

11. The subject land is zoned Residential 1 under the Stonnington Planning Scheme. As noted earlier, the subject development requires a permit under Clause 32.01-4, being the construction of two or more dwellings on a lot in the Residential 1 Zone.

12. As the application for permit was lodged with the responsible authority prior to 24 August 2001, the transitional arrangements for residential development, at Clause 52.04 of the scheme, apply. This means that when deciding about this application the responsible authority and this Tribunal on review must consider the Good Design Guide for Medium Density Housing, not withstanding the fact that the RESCODE provisions have been introduced and are set out at Clauses 54, 54 and 56 of the scheme. Clause 52.04 states;

The requirements of the planning scheme as in force immediately before 24 August 2001 continue to apply to a permit application made before that date to the extent that, but for this clause, Clauses 54, 55 or 56 would apply to such an application

13. Interestingly, had the application for permit not been amended by the Tribunal in a directions hearing conducted by Senior Member Young, prior to the principal hearing, the Good Design Guide would not have been relevant. The guide only applies to developments of four stories or less and until the plans were amended, Pavilion C comprised five stories.

14. In the course of making his submissions Mr Osborne sought to suggest that we should consider the subject application using the RESCODE provisions rather than the Good Design Guide. In his submission the fact that the application had been amended after 24 August 2001 meant that we should regard the application as having been `made' after the date to which the transitional arrangements apply.

15. Following our pointing out to Mr Osborne QC that the application as amended, being four storey, would be exempt in any case from the RESCODE provisions, he conceded that the subject application was hardly `the ideal vehicle' for his argument. We agree and we see little reason for troubling ourselves further with his argument. . To put the matter beyond doubt, however, we accept the proposition put by Mr Morris QC that in law, the permit application as amended by the Tribunal is still the same application as was `made' to the responsible authority prior to the 24 August 2001. Accordingly, and given the fact that the amendment had the effect of invoking the Good Design Guide provisions, it is against the Guide and not RESCODE, that we must now consider this application. Of course this is in addition to the other matters for consideration set out at Clause 65 of the Scheme, which include the State and local planning policy framework, the matters set out at section 60 of the Planning and Environment Act 1987 (`P&E Act'), and any effect on the amenity of the area,

16. At page 1:3 of 3, the Guide sets out the following approach to assessment:

Following the initial site analysis, all eleven design elements should be considered when preparing and assessing the development proposal. Wherever possible, a development should satisfy the objectives and criteria of all the elements. Invariably, different weighting will be given to each of the elements for any particular proposal due to the circumstances of the site. Because of this, a responsible authority must exercise its judgement as to whether a development proposal satisfies both the spirit and intent of the Guide and enough of the design element objectives and criteria to be acceptable.

17. The principal issue for consideration in respect of this application for review is whether the development can be said to achieve an appropriate outcome in terms of the Good Design Guide's objectives in relation to neighbourhood character and privacy and the local planning policies for urban design and for residential character, amenity and interface where these refer to higher scale development.

18. Other issues raised, but which were not pursued with any great vigour, included

Is the site is suitable for a greater scale of development under local policies

19. The subject land is not within an area specifically identified or encouraged for higher scale and medium density development in the Strategic Framework Plan at Clause 21.03 of the scheme. These locations include sites abutting arterial roads and large sites shown on the map with a star. At 0.72ha, it is however a very large site for this area and we accept that the Good Design Guide has as an objective at E1.05, `To support higher densities for development on larger sites and to encourage the consolidation of sites. This objective is not affected by the local variation to the guide at Clause 22.08.

20. Even the objectors expert town planner, Ms Catherine Heggen, agreed that this site, by virtue of its almost unique size, is suitable for higher density and a higher scale of development than the one to two storeys recognised as the prevailing scale within the municipality. She also agreed that the proposed layout- comprising a higher central block surrounded by four corner blocks - is appropriate and would do the same herself, albeit with each block separated from each other and with greater opportunity for landscaping.

21. We accept, in any case, that higher density development, in locations other than those specifically identified on the strategic framework plan is in fact contemplated by the local planning policy framework. It is stated, for example, at Clause 22.02-3, 7th dot point, that in locations other than the Chapel Street, Toorak Road commercial centre, if a development be of a height and scale that is inconsistent with its particular setting and location [which we agree that this is] the applicant is to demonstrate satisfactorily that:

* The building does not abut a heritage place [it does so abut, but even the respondent objectors' witness, Ms Heggen, agreed that the siting of the State registered Rivett flats was irrelevant to the real issues here];

* Portions of a building over two storeys are set back from the frontage to maintain the streetscape [they are];

* The upper floors are used for residential purposes [they are];

* The building has been designed to complement the character of the area [we will be saying more about this later, however we accept that although complete success may not have been achieved on this score as yet, there has been a clear attempt to do so];

* The building will not adversely affect the amenity of any adjoining residential properties through overlooking [we will say more about this later]; overshadowing [it does not], or traffic and parking associated with the use [it does not].

22. Accordingly the outstanding matters to be demonstrated, in order to support a higher scale of development are, whether the building can be said to complement the character of the area and whether it would adversely affect the amenity of neighbours through overlooking. When we say that the character of the area is an issue to be resolved, it would be fair to say that the focus of concern has been with the manner in which the scale or bulk of the development interfaces or integrates with surrounding development and, in particular, whether sufficient opportunity has been made fro setbacks and landscaping to soften these interfaces. What follows is an analysis of what we believe to be the constraints and opportunities present at the site's interfaces and our findings in relation to whether or to what degree the outstanding issues of overlooking and visual bulk can or have been addressed having regard to these.

30. The Smorgon property is well landscaped and their various active and secluded open space areas are located in a manner that ensures, to a large degree, that the bulk of the three and four storey built form will be obscured. There is a view cone to their secluded private open space area adjacent to the main dwelling which, we accept, requires protection to meet both cl. 22.02-03 and the 9.0m separation suggested at Technique E7T2 of the Guide. We do not think that the fact that on site screen planting may become effective after five or ten years, or that the Smorgons could stop trimming their boundary hedge, is an answer to the specific outcomes suggested at cl. 22.02-3 or the relevant objectives of the Guide.

31. We find therefore that at the Smorgon interface, the secluded private open space adjacent to the rear terrace to the back of their house needs to be properly screened from views by Apartments Nos. 1.13, 1.14 and 2.10.

32. The Smorgon's tennis court is a less sensitive recreational open space that is already overlooked by neighbours at 7 Tahara Road and from the subject land. It cannot be said therefore that this space is enjoys a seclusion which would be lost as a result of this proposal. The tennis court is located to the front of the first, second and penthouse apartments in the westernmost half of Pavilion C. Proposed screen planting and the existing tennis court fence will obscure views from the first floor apartments. This means that the only prospect of overlooking would be from the south facing terraces to bedrooms in apartments Nos 2.09 and 2.08. These are not the primary open space areas for these apartments. The penthouse apartment has a south facing terrace but this is proposed to be screened. Given the setbacks (in excess of 16.0m before a person would be visible behind the tennis court fence), and the fact that the court is already overlooked, we have been unable to be persuaded that this degree of overlooking would be unreasonable, having regard to the relevant objectives, criteria and techniques of the Guide.

33. As for the visual bulk, we again do not see this as an issue since the existing mansion presents a similar bulk at a similar setback - except for the penthouse which we find will be well setback behind its screened, south-facing terrace.

34. The distance between the Leech's secluded private open space and the proposed building or unscreened windows within the development is greater than that of the Smorgons. Their rear abuttal is really a service and garaging area and beyond this there is a substantial tree which offers a useful screen. Once the Leech's yard becomes a recreational open space, it is at a distance of 20.0m from the outer faces of the building. A bedroom and part of a terrace is to remain unscreened. If views are indeed possible we are not persuaded that they could be described as unreasonable.

35. The Leech's backyard is not particularly secluded from the existing Rivett flats, or from the bulk of the two storey dwelling at 7 Tahara Road. The existing mansion on the land is also visible. We are of the view that any additional visual bulk, due to the construction of the proposed apartments would not present as an alien element in this rear yard context, especially with the addition of landscaping.

36. The Rivett flats are themselves an imposing edifice in the visual environment of The Lane. The site is attractively landscaped. The trees and shrubs do not have a screening effect per se, rather they have a visually enhancing effect. Mr Barlow recommended that the south facing terrace to unit 2.06 should have its screening measures extended to the entire perimeter of the balcony and we agree. The window to unit 1.09 below is already to be screened with etched glazing to 1.6 m. The balconies to the Rivett flats may be exposed to views from the proposed development, but no more so than is already the case from The Lane. We accept that with the minor modification proposed by Mr Barlow, there would be no unreasonable impacts due to overlooking or visual bulk in respect of the interface between the Rivett flats and the proposed development.

37. As Mr Barlow pointed out, the Besens have gone to extraordinary lengths to protect their outlook and privacy by the use of perimeter planting to all their many boundaries. This planting effectively screens views to the abutting four storey blocks of flats surrounding their home and beautiful garden. The Besen's land is irregularly shaped, with many corners and turns, each of which has been treated with tall, densel vegetation. Clearly this will have taken much time, effort and expense and is a credit to their gardeners. Mr Barlow said he had thought long and hard about the importance of this proposal not mining the Besen's amenity. We think the pun is intended and note that a similar expression used in such instances is borrowing from another's amenity. We note however that mining may be said to imply a degree of destruction without reciprocity. Mr Morris QC agreed it would be appropriate for the proposed development to provide some return benefits.

38. Given the extent of the proposed rear setbacks, we are not persuaded that removal of the significant stand of melaleucas on the rear perimeter of the subject land could be ever be substituted by plantings likely to have make a visual, screening or canopy tree contribution equivalent to that provided by the melaleucas. We are persuaded that this stand is an important element that makes a useful contribution to the character of the neighbourhood. Given the planning scheme's emphasis on site responsive design, we are of the opinion that the more appropriate design response is one that ensures that these trees can be accommodated into the future. The criticism of the prickly characteristics of melaleucas' is not, we think entirely relevant since this portion of the site has been designed more as a backdrop to the indoor swimming pool than as an active barefoot recreation area. We accept that the trees could be shaped and to some extent, cleaned up at their lower levels, which will provide an opportunity for under-planting with shrubs and ground covers. The objective however must be to ensure that their upper canopy and lane overhang qualities can be maintained.

39. The outlook across The Lane from the first and second floor flats at 30 Lansell is towards the English oak and the Algerian oak at the north western corner of the subject land. Only the English oak is proposed to be retained, despite all the landscape and arboricultural evidence pointing to the good condition and likely longevity of the Algerian oak. These trees, when combined, give good canopy spread which makes a positive contribution to The Lane and would provide a vegetated frame to the proposed building that could address any impression of visual bulk. . While the landscaping proposed by Mr Patrick will, with time, achieve a similar effect, we are not persuaded that there is sufficient reason for the landscape design to not take advantage of the existing opportunity offered by the English and Algerian oaks combined and to have provided for the retention of both. Without the Algerian oak we would have found that despite the 13.6m separation to the Aldor flat, that there would have been an uncomfortable sense of directness between the Aldors windows and the living room windows and main terrace to Apartment 1.07, with little opportunity for the Aldors to ameliorate this in any way.

40. This interface was identified by all of the town planning consultants as the most sensitive from the point of view of bulk. It is not particularly sensitive from the point of view of privacy, as all units face a public, common driveway. Accordingly, occupants are accustomed to needing curtains to ensure their privacy from people walking up and down the drive.

41. It is towards the rear of the Monash drive development that our concerns about the proposed development's response to the character of the area and to its interface with neighbours, are most strongly felt. At other interfaces and view lines, only parts of the building or bite sized views will be appreciated by neighbours or passers by, and each of those parts will mirror to a large degree either a built form that exists in the immediate vicinity or the built form that currently sits on the subject site in the form of the unfinished three storey mansion.

42. However, at the Monash Drive interface, we agree that man sized chunks of Pavilions B,C and D, if not the whole loaf, can be viewed. This we regard as completely out of character with the separated block forms that characterise much of the surrounding neighbourhood. It is at this point that the development is experienced as overwhelming. True, the southern façade of the Monash Drive units itself comprises one long, uninterrupted expanse. However, the modesty of these units, which are single storey towards the front increasing to two level as the site slopes down to the rear, diminishes any real sense of bulk or wall expanse.

43. Additionally, the side setbacks of this portion of Pavilion D, only 2.9 metres to the overhanging first floor terraces, are we consider, a mean spirited response in comparison with other parts of this development and in comparison with the substantial 0.72ha size of the site the consequential opportunity to be reasonably generous in the provision of setbacks and landscaping.

23. As identified accurately by Mr Biles and Mr Barlow, the character of Toorak and of this portion no less, is that of evolution and mix, a work in progress to quote Mr Biles. Although first impressions may be of wealthy mansion houses in a garden setting, in fact the subdivisional layout is varied by the devolution of mansion allotments into 750m2 lots which have been developed in the 1960's and 1970's with more modest single dwellings, and further developed more recently with neo-classical or Tuscan style mini-mansions. Peppered among these are blocks of flats from the 1950's, 1960's and 1970's. The greenery and magnificence of the St Georges Road plane trees provides a unifying element of considerable significance to the area.

24. Mr Jeffreson, the project architect with Demaine Partnership, stated that his objective had been to create an effect of mansions in a garden setting. The design details of the architecture reflect elemnents from the interwar period of the 20's and 30's. It adopts both classical and picturesque arts and crafts features, which we agree will sit gently with the surrounding built form.

25. The local policy clause 22.02-3, which deals with urban design, emphasises the need to correlate the new with the existing setbacks, alignment, height, scale, bulk and form of the context within which a proposal finds itself. Again, for the most part, we think the architect has been respectful of most contextual issues. The proposal's strengths certainly lie in:

(a) A complimnetary palette of architectural elemnets, using good quality materials and finishes;

(c) Stepped back third and fourth levels behind the façade, thereby recessing bulk;

(d) A single crossover leaving room for front garden planting and retention of the street Plane trees;

(f) On-site Resident facilities comprising indoor pool, lounge, library and on-site manager;

(g) good northern solar access for the majority of residents.

26. Ms Heggen criticised the design as too bulky for its context and too repetitious in its detail, claiming its appearance institutional.

27. We think the architect has achieved his mansion effect in a garden setting aim for the most part, as the building presents as modules from all of its many interfaces except for the Monash interface at 33 St Georges Road. At all the other interfaces, the building is only perceived in separate modules or bite sized portions, to use Mr Osborne's expression, rather than as the full loaf At the Morgan interface, conceded by Mr Morris QC and the witness called by him, to be the most sensitive section of the proposal, the 40 metre building length of Pavilion D alone will present as one solid and high three storey mass insufficiently broken and softened by planting and articulation. This is illustrated by the tight boundary planting, which needs to fit in between terraces set back 2.9 metres from the boundary.

28. We are not persuade that this insensitivity at the northern interface need necessarily result in a refusal of permit given our confidence that it is a matter that may be able to be rectified by altering the layout and siting of Pavilion D. We find therefore that it is appropriate in this instance to provide the applicant with an opportunity to further modify the development at this interface to comply with policy regarding the character of the area.

Address the views from the Monash Drive intersection with St Georges Road onto the three storey walls and the clipped lilly pillys to screen

Address the non-compliance with GDG E7. T3 apropos internal privacy between residents.

49. However, we make it very clear that the amended plans should be seen as an opportunity to rectify the shortcomings in order to enable the Tribunal to further review the proposal. It does not mean that a permit would be granted as a matter of course.

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