1. The subject land is located on the south side of Bay Road, midway between Bluff Road to the west and Reserve Road to the east. The land is within and on the western periphery of an area of strategic importance known as the Bayside Business Employment Area .

1. The land is a combination of two lots with a frontage to Bay Road of 159 metres and an area of 2.35 hectares. The land is currently occupied by an industry and a factory outlet, neither use could be said to be fully utilizing the land.
2. The land directly surrounding the review site is as follows:
   • To the east is a public open space known as the Bay Road Heathland Sanctuary Reserve a large parcel of land owned and managed by Council for conservation of remnant native vegetation. There is a pathway through the reserve along its western boundary, adjacent to the subject land, providing access to a lookout and the Sandringham Secondary College sports ground to the south. The pathway and lookout are accessible at all times but the reserve is otherwise only open to the public for a small number of hours per week.
   • To the south of the site is the VCE campus of Sandringham Secondary College and its sports ground. The sports ground belongs to the school but is also informally used as public open space.
   • Directly adjoining the site to the west is a carriageway and drainage reserve which is an important pedestrian connection between the college and Bay Road across the reserve are single storey warehouse buildings used for industrial purposes.
   • To the north is Bay Road, an arterial road within the Road Zone Category 1. The 822 bus route runs along Bay Road, connecting the land to Southland Principal Activity to the east and Sandringham Major Activity Centre to the west.
   • Across Bay Road, west of Sydenham Street are 1 to 2 storey buildings used for industrial purposes east of Sydenham Street there are 1 and 2 storey dwellings part of a broader residential hinterland. .
3. North and south of the immediate environs described above are the conventional suburban residential areas of Sandringham and Highett. These areas where primarily developed during the post war years and the modest dwellings of that period are only in the last few years being replaced with larger 2 storey dwellings and townhouses..
4. The Business Employment Area is a large industrial area also primarily developed in the decades following the second world war. Within the last decade or so there has been some 1 and 2 storey redevelopment, while in more recent years there has been a small number of 3 and 4 storey commercial developments, which respond to the policy now relating to the Business Employment Area. The Business Employment Area was land previously within the industrial 1 and industrial 3 zones and is essentially all the land falling within the Business 3 zone and the Mixed Use zone clustered at the centre of the figure B below.
5. The Sandringham Major Activity Centre and Sandringham Railway Station are located 2.1 kilometres to the west of the review site. The Southland Principal Activity is located 2.4 kilometres to the east. The Highett Train Station, on the Frankston line, is located 2.3 kilometres to the north east.

1. The proposal as originally submitted to Council proposed a large mixed use development comprising:
   • 499 apartments including 32 serviced apartments;
   • Gymnasium and swimming ancillary to the resident use;
   • Early learning centre for 120 children;
   • Medical centre with 20 practitioners (at any one time);
   • A 60 seats café;
   • A convenience store with a floor area of 211 square metres.
   • 891 car spaces and other services in basements below each building;

in three buildings all aligned on a north south axis with a site coverage of 36%.. The central building rises to a maximum height of 11 storeys at the centre rear of the site. The east and west buildings rise to a maximum of 5 and 6 storeys respectively. The layout and massing of these buildings was similar to but higher than the amended proposal described in Appendix B and Figure E below.

1. The amended proposal also proposes a large mixed use development which comprises:
   • 453 apartments including, 167 one bedroom residential apartments, 246 two bedroom residential apartments 32 serviced apartments and 8 SOHO apartments, comprising a small ground floor office attached to a 1 or 2 bedroom apartment;
   • Gymnasium and swimming ancillary to the resident use;
   • Medical centre with 20 practitioners (at any one time);
   • A 60 seats café;
   • A convenience store with a floor area of 200 square metres.
   • 873 car spaces and other services in basements below each building;

The proposed three buildings all aligned on a north south axis with a site coverage of approximately 35%. The central building rises to a maximum height of 8 storeys at the centre rear of the site. The east and west buildings rise to a maximum of 4 storeys. The layout and massing of these buildings are described in Figure E and Appendix B below.

1. The subject land is located towards the western periphery of an area prescribed as the Bayside's Business Employment Area. The Business Employment Area is essentially all the land falling within the Business 3 zone and the Mixed Use zone clustered at the centre of the figure below.

Figure B - Bayside's Business Employment Area and surrounds

1. The most important issue in this application for review is the council's contention that having regard to the planning framework applicable to the land, the proposed mix of uses does not contain a sufficiently significant proportion of employment generating activities. The applicant's contend that the proposed mix of uses is an appropriate response to both the planning policy framework as it relates to the land and its zone. The evolution of the Business Employment Area in its planning context is useful to a resolution of this debate:
   • The area now described as the Business Employment Area was the largest industrial precinct within the municipality up until the introduction of Amendment C39. The council commissioned a review of its industrial policy and this resulted in the preparation of the Bayside Industrial Area Strategy 2004. The strategy concluded that:

With appropriate planning, urban design improvements and marketing, the Bayside Industrial Area has the potential to transform from a traditional industrial area, into a prestigious boutique business park.

The strategy recommended amendment of the MSS, local planning policies and a suite of rezonings which principally proposed that land in the industrial zones be moved to a business 3 zone.

• The recommendations of the strategy lead to the preparation of Amendment C39. The amendment closely followed the recommendations of the strategy, and in respect of the industrial land west of the Heathland reserve the amendment included the land within the proposed business 3 zone. The panel considering submissions in respect of the amendment regarded the business employment area as comprising a core area and a periphery, with the core being that part of the overall area east of George Street. The subject land is in the periphery. In the context of this perception of the function of the business employment area, the panel recommended that part of the Business Employment Area west of the Heathland reserve and south of Bay Road be included in a mixed use zone, rather than the business 3 zone concluding:

In relation to the land outside the "core" of the business employment area the panel supports the inclusion of land (five properties west of the Bay Road Heathland sanctuary in a Mixed Use zone). The location of this land adjoining this century, a secondary college and residential land and opposite a small strip of mixed use zoning and separated from the business employment "core" supports its use and development for a wider mix of uses that may include residential.

• Having received the panel report, the council divided Amendment C39 into parts with part 1 giving effect to the rezonings supported by the panel. In part 3, after a process of reconsideration the council gave effect to the recommendation of the panel and rezoned land to the west of the Heathland reserve and south of Bay Road to a mixed use zone. Part 3 also incorporated changes to the MSS and clause 22.05 with specific strategies for the subject area within the Mixed Use zone, the most relevant of which are:
  • Ensure that the business and employment objectives of the Bayside Industrial Area Strategy 2004 are met.
  • Encourage a diversity of uses on each site, including commercial, industrial, warehouse and medium density residential uses.
  • Encourage more intensive development.
  • Encourage high quality building design and landscaping carried out to standards of design and construction that will enhance the character and amenity of the surrounding area, such as acoustic design.
  • Encourage development that incorporates ecologically sustainable development (ESD) principles into building and site design, such as energy efficiency, stormwater provisions and alternative forms of energy.
  • Ensure that the design of buildings fronting Bay Road incorporate an active interface with Bay Road through articulation of building facades and landscaping within the building setback.
  • Apply height and setback limits as indicated in S1.
  • Strongly encourage business/commercial uses at ground level fronting Bay Road.
  • Discourage residential uses from locating at ground level fronting Bay Road to maintain the business/commercial focus of the area.
  • Encourage residential development at upper levels in areas that will avoid conflict with other uses within the site or on adjacent sites.
  • Discourage retail uses that do not directly support or service businesses within the Bayside Business Employment Area.

1. Mr Montebello submits that notwithstanding the fact that the land has been included in the mixed use zone a residential zone, the land remains part of the Business Employment Area. It is his submission that the planning policy framework which informs decision making in respect of land within both the zone and the business employment area requires that a more significant proportion of the proposed floor area of any new development should be devoted to employment generated uses than is proposed.
2. The MSS and clause 22.05 clearly focus on the business employment area being transformed to create a vitalised vibrant and viable industrial and commercial business centre. In Clause 22.05-2 , the policy is to "Encourage a diversity of uses on each site, including commercial, warehouse, and medium density residential uses." The concern by Council, is that this proposal does not provide a "meaningful" level of employment uses, and as Mr Montobello argues, that which was provided was merely "tokenism" Councils case, is that this proposal constitutes the wrong mix of uses.
3. The applicant contends, that there is a clear distinction between the "core" and "periphery" of the Business Employment Area. The distinction is the application of the Business 3 Zone to the core, and the Mixed Use Zone to the periphery. As noted by Mr Govenlock, the Mixed Use Zone allowing for residential, would provide more of a transition to the established residential in close proximity. The Planning Panel which was convened with respect to Amendment C39 to the Scheme, the mixed use zone for this site it considers appropriate given the abutting residential and educational use of land to its south and the Heathland Sanctuary to the west.
4. Does this policy framework as it relates to the subject land within the mixed use zone, require a more significant proportion of employment generating uses than proposed? The policy does not expressly require a significant proportion of such uses, and to the extent that it contains specific land use strategies the development complies with the prescriptions. For example policy strongly encourages business/commercial uses at ground level fronting Bay Road[2]. The development responds as follows:
   • In respect of the east building it is proposed to incorporate SOHO Apartments[3] occupying the first two levels of the proposed building at its frontage to Bay Road.
   • In respect of the central building at ground floor level, the proposal provides a café and convenience shop fronting onto Bay Road at ground level,
   • In respect of the west building towards the front of the site all five levels, fronting Bay Road are used for a commercial purpose, comprising a medical centre occupying the first two floors, and the serviced apartment complex occupying the upper three levels.
5. Does the history of the introduction of the relevant policies and zones into the planning scheme support the interpretation of policy encouraged by council. The panel clearly encourage a mix of residential and business uses within the area it recommended to being included in a mixed use zone and they did not recommend that the affected area be deleted from the business employment area policy. However, neither did the panel recommend special policy provisions to constrain the exercise of discretion, in respect of the affected land in this regard.
6. The amendments to the MSS and clause 25.05 which form part of Amendment C39 Part 3 did contain more specific policies in respect of the land use mix to be achieved, but as we have already observed, do not conclude that the mix of uses on any individual site should include a significant or predominant proportion of employment generating uses.
7. Nevertheless, we are of the opinion that land within both a Mixed Use zone, and the Business Employment Area exists in a planning policy framework which requires a mix of use on each development site in particular a commercial presence onto Bay Road.
8. Considering the planning context of the proposal more generally we make the following observations:
   • An inspection of the Business Employment Area as a whole reinforces the potential identified in the Bayside Industrial Area's strategy but does not reveal a pace of change that would suggest an imminent shortage of land for the achievement of the purposes of the strategy.
   • Within the Business Employment Area the future availability of land for employment generated land uses, and the prevention of the alienation of such land for residential purposes, is protected by the business 3 zone.
   • There is no economic research either in the strategy or presented to us at the hearing, which suggests that there is any mismatch between the availability of land for employment generating uses, and demand which would be exacerbated by the use of land within the mixed use zone for residential purposes. Indeed, having regard to the availability for business and industrial purposes in the business employment area and nearby within the City of Kingston, such an outcome is highly unlikely.
9. The employment generating uses proposed i.e, convenience shop, café, medical centre, serviced apartments and offices in Soho apartments were criticised on the basis they are land uses also permissible within the residential 1 zone. We do not think that this is a relevant consideration. Moreover, we consider that the proposed land uses have the potential to have a useful synergistic relationship with other desirable land uses within the Business Employment Area, i.e:
   • The proposed convenience shop and café will primarily serve the needs of the proposed new residential community but will at the same time be a useful resource for businesses within the Business Employment Area;
   • A large medical centre will serve a wider regional area, but it will undoubtedly be useful to people employed within the business employment area to have access to a medical centre close to their place of work;
   • Subsidiaries of national and international companies and other businesses of the type that policy seeks to encourage in this area from time to time need to find accommodation for employees and other persons with a temporary association with their business. The proposed service apartments, provide just such a business resource within the business employment area itself;
   • The proposed home offices are encouraged by the policy itself, and are likely to be a useful addition to the mix of office spaces emerging within the business employment area[4].
10. It follows from the above discussion that we consider that the proposed mix of use is an adequate response to the planning policy framework. We think that the employment generating uses proposed have the potential to form a useful synergistic relationship with the broader business employment area. Finally we do not think that the substantial residential component which forms part of this proposal is an alien or inappropriate addition to the mix of uses to emerge over time in this business employed area.

1. Both council and the respondent objectors argue that the level of residential development proposed is substantially too intensive because:
   • An insufficient proportion of the proposed development is devoted to non residential, employment generating land uses;
   • The proposed built form is inconsistent with local planning policy;
   • The land is not within or near any significant activity centre;
   • The significance of the location of the land on the PPTN (Principal Public Transport Network) is diminished by the inadequacy of the relevant bus service.
2. Mr Montebello did acknowledge that a land use mix and built form acceptable to council would result in a substantial residential development, which might remain unacceptable to the respondent objectors.
3. Conventional urban consolidation issues are of course relevant to this application. However, having regard to the planning policy framework as a whole, such considerations do not offer the most direct support for intensive redevelopment on the subject land. In our opinion clause 22.05, Business Employment Area Policy, provides direct support for the intensive redevelopment of the subject land with a mix of uses which include residential uses. We have already concluded that the mix of uses is acceptable in the context of this policy, we will consider the question of built form below.
4. It is also the case that urban consolidation considerations support intensive residential development of the land for reasons which include:
   • The land is a very large site, currently used for industrial/commercial purposes without unduly sensitive direct interfaces;
   • The land is within a mixed use zone;
   • The land has direct access onto an arterial road;
   • The land is located on the PPTN comprising a bus service[5];
   • The land is not within or within walking distance of a significant activity centre, but it is close to both a principal activity centre, and a major activity centre, Southland and Sandringham, both connected to the site by the PPTN.

1. There is no real debate as to the quality of the architecture as an abstract design solution for the land. Site planning has been carefully considered i.e.:
   • The design seeks to result in buildings within a park like setting, responding to the large open space areas which adjoin the land to the east and south;
   • The design solution adopting of three separate buildings each with a north south axis and separated by approximately 30 metres maximises light and ventilation, enables extensive landscaping, and in a reasonably direct way responds to the broader subdivisional pattern within the area;
   • The large site and low site coverage results in in a remarkably self-contained development with few direct amenity effects. The design allows for a high standard of pedestrian and vehicular access. Car parking demand[6], waste management, and loading facilities are all contained on site.

1. The architecture of the buildings themselves is of a very high standard. The architectural language, the articulation of the buildings, and the choice of materials should result in an excellent outcome. The perspective rendering in figure C above, a part of Mr Fender's evidence, gives some sense of the proposed architecture and materials, and the proposed architectural differences between the central building vis a vis the east and west buildings. There were issues raised regarding the continuous unbroken central corridor length to the central building, as well as natural light penetration at the end of these corridors. These minor design issues could be resolved by way of conditions.
2. The issue in dispute is not the quality of the architecture, rather it is the height and massing of the proposed building in the policy and neighbourhood context. Clause 22.05 contains discretionary development parameters which among other things define a preferred maximum height of 14 metres and for the subject land preferred setbacks which relate to the Bay Road and Heathland Reserve boundaries of the land. A 14 metre high limit is equivalent to four commercial storeys, or in the order of 4.5 residential storeys.

Fifure D - Height and setback limits S1 and H1

1. The proposed massing of buildings is complex. The drawing in figure E below, again taken from Mr Fender's evidence, provides a helpful illustration of the proposed massing and aids in an understanding of the discussion which is to follow.

1. On Bay Road, the street edge of the proposed buildings range in height from three to five storeys. The buildings are setback behind the street edge with setbacks varying from approximately 15 to approximately 36 metres. On this boundary ground floor level is set above the natural ground level to accommodate Melbourne Water's requirements under the Special Building Overlay, particularly for the central and western buildings.
2. Setbacks either equal or exceed the preferred 15 metre setback. The central and western buildings, as they step back from the frontage of the site, are somewhat higher than the preferred maximum height. We agree with Mr Shepherd, in our view the buildings as they address Bay Road respect the design outcome sought to be achieved by clause 25.05. In particular we note that not only is the setback area capable of landscaping, the generous spaces between buildings will make landscaping within the site visible from Bay Road and ensure that in time landscape will be an important element the presence of these buildings in this streetscape.

1. Along the Heathland Reserve boundary of the land the east building varies in height from three, four and five storeys. The proposed setbacks along this boundary vary between 9.5 metres and 12.5 metres. At ground floor level, the setback from the side boundary to the private open space of ground floor dwellings is at least approximately 6 metres, which is the area set aside in the Landscape architects report for the " Heathland Extension" incorporating vegetation to match the vegetation to the western boundary within the adjoining Reserve.
2. The applicants contend that other than for the central five storey element, the building complies with the preferred height and setback standards on this boundary. It is argued that the five level element is justified because of its contribution to the modelling of this long façade and because of its generous setback.
3. Mr Montebello argued that the preferred wedding cake arrangement of setbacks and heights[7], albeit at a substantially reduced minimum setback, was designed to conceal upper levels from a viewer within the reserve creating the impression of a building that is two to three storeys in height.[8]
4. Mr Montebello's view of the preferred height and setback standard may well be correct. But the real issue that we have to decide is whether or not a building setback 3 metres, rising from 8 to 14 metres in the stepped approach illustrated in H1 is to preferred over a building rising to 14 metres at a setback of 9 metres. This boundary is an interface with an important flora and fauna reserve. The landscape is the critical consideration. Mr Calhoun's landscape concept for this boundary proposes the use of trees, shrubs and other under storey plants which are endemic to the reserve. The setbacks proposed allow for a very substantial reinforcement of the vegetation which already exists along this boundary of the reserve. We think the proposed solution is to be preferred.

1. Clause 22.05 does not contain any guidance about the preferred setbacks from Sandringham Secondary College or its sports ground. Mr Sheppard described the interface on this boundary as follows:
   • The western building will be approximately 11.6 m high at a setback of 6.5 m from the southern boundary, with a further level setback a additional 8.4 m. The top level of the western building is set back approximately 54 m from the southern boundary.
   • The eastern building will be approximately 11.2 m high at the set back of 5.5 m from the southern boundary, with a further level set back an additional 8.7 m. The top level of the eastern building is set back approximately 53 m from the southern boundary.
   • The central building will be approximately 14.3 m high at a setback of 9 m from the southern boundary, with a further two levels set back an additional 4.2 m, and two more levels set back a further 9.2 m.
2. Other than for this central building the scale of buildings on this boundary, in terms of height is consistent with the policy settings. Indeed, the substantial spaces between buildings, substantially moderates the scale of buildings overall over and above that which might have reasonably been expected. It is a central building rising to eight storeys which is controversial and we discuss this issue below.

1. Along the west boundary of the site the building ranges in height from three to five storeys. The northern section of the proposed western building, which contains the 2 level medical centre, is setback 2 metres from the western boundary. The remainder of this building, including the serviced apartments above the medical centre, is set back a minimum of 3.2 metres from the boundary and rises to a height varying between 14.3 metres and 19.8 metres.
2. The west boundary of the land adjoins a laneway used for pedestrian access between Sandringham Secondary College and Bay Road. This pathway at present has a rather blank and unattractive industrial character. The proposed development will result in a landscape residential setback which in our view will substantially improve both the amenity and security of this pathway. The ground floor level of the west building is raised because of the risk of flooding in the locality, this has the advantage that the privacy of the proposed ground floor apartments is improved by this difference in level between the apartments and the pathway.

1. The eight storey element of the proposed buildings is located towards the centre rear of the subject land. The eight storey element is setback 81 metres from the Bay Road frontage of the land. The eight storey element is setback approximately 70 metres and 22 metres from the Heathland reserve and Sandringham Secondary College boundaries respectively.
2. The preferred maximum height limit of 14 metres is a discretionary limit. The idea that buildings might exceed this limit on a very large site with an area of 2.35 hectares and with no significant sensitive interfaces should be uncontroversial. The extent to which a building might exceed the preferred limit in circumstances such as this is perhaps illustrated by council's urban designer's referral response to the original 11 storey proposal, i.e.:

The scale of the development particularly given its location in a low rise area' well within the visual field of established residential development far exceeds the existing low rise domestic suburban stock. To be acceptable the central form should be reduced in scale so that it presents clearly at four and five storeys to Bay Road and the school grounds to the south consistent generally with the forms proposed to the east and west.

Whilst a height up to six and ultimately seven stories may be acceptable within the middle of the site, it must be set well back and visually discreet.

1. In our view the building will not be unduly prominent viewed from the surrounding environment i.e.:
   • There are only a handful of dwellings north of Bay Road which would have an unobstructed view to the eight storey element. These dwellings are more than 100 metres from the building and in time this view will be of substantially filtered by the proposed vegetation;
   • A number of dwellings on the south side of Holloway Road and Wangarra Road have views towards the eight storey element without intervening buildings, these views are filtered through the existing vegetation on the southern edge of the Sandringham Secondary College's sports ground and all these dwellings are more than 200 metres from the building;
   • A pedestrian in Bay Road will have an oblique view of the eight storey element where they are able to view the building through the proposed landscaped spaces between buildings, the eight storey element would otherwise be substantially screen from the view of users of Bay Road;
   • The eight storey element will not be visible from the pathways which traverse both the east and west boundaries of the subject land;
   • From more distant view points, the building will from time to time be visible through gaps between fore ground objects but would otherwise be invisible;
   • The eight storey element will be clearly visible from within the Sandringham Secondary College sports ground.
2. We are of the opinion that the scale and massing of buildings has been carefully managed in a way that respects the design intentions of Clause 22.05. This is a conclusion which applies equally to the eight storey element.

1. Ms Duncan made submissions on behalf of Sandringham Secondary College and raised a number of issues which are specific to the school which we wish to discuss separately.

1. The school is concerned about overshadowing of its land in particular an area within the setback between the south boundary of the subject land and the school buildings used for agricultural studies[9].
2. The shadow diagrams indicate that if this area, was a private open space of a dwelling in a residential context, the shadows cast by the proposed building would comply with the relevant Rescode standard. There will be some overshadowing during the winter period, but at the equinox the proposed buildings will cast not significantly shadow on the school land between 9.00 am and 3.00 pm. We do not think that having regard to the level of development anticipated by clause 25.05 an overshadowing standard more stringent than that would be applied at a residential interface should be applied in circumstances such as this.

1. The proposed development introduces dwellings in a multi level buildings to the north of the school land. The closest dwelling is setback 6.5 metres from the school boundary. The school is concerned about the impact of these dwellings on the privacy of their students.
2. In a conventional residential context the ResCode privacy standard does not seek to prevent overlooking, but to prevent unreasonable overlooking. In this context the overlooking of secluded private open space or habitable rooms at a distance less than 9 metres would be regarded as unreasonable, and screening would be required. Privacy screening always compromises the amenity of the affected dwelling.
3. There would need to be a very significant justification for privacy screening to protect the privacy of an institutional use such as a school. Student's recreational spaces within a school are not private in the sense that the interior of a person's home or their back yard are regarded as private spaces. A better overall planning outcome might be where a school perceives privacy to be a matter of concern, then perhaps the school should address the problem utilising measures such as the strategic placement of trees and shade sails to obscure views to outdoor recreational spaces for students.
4. In this case there is nothing unusual about the relationship of the school to the subject land, or more particularly the recreational spaces for students other than the sports ground which would warrant compromising the amenity of proposed dwellings by requiring the installation of privacy screens.

1. The school is also concerned about the possibility of a licensed café being established on the subject land. The current application does not seek permission for the consumption of alcohol in respect of the proposed café. However, it is acknowledged that it is likely that the proposed café would seek to be licensed.
2. We accept that it would be entirely appropriate for the proposed café to be licensed. The café is a small 60 seat café primarily designed to serve the needs of nearby residents, and people employed within the vicinity of the land. We are unaware of any research that indicates that small cafes of this type pose a particular risk in respect of the consumption of alcohol by underage drinkers, certainly no evidence of this type was presented to us.

1. The advertisement of the original proposal, eleven storeys and almost 500 dwellings, resulted in a considerable response from the surrounding community with over 1,000 objections being received by council. In some senses this response is surprising, as the proposal is for the redevelopment of the industrial site without any direct residential neighbours. However it is clearly the scale of the proposal which is the source of this concern. The surrounding residential areas are conventional low scale suburban environments and an eleven storey building, or even an eight storey building, seems extraordinary even if the land is not within a residential area. The creation of 500 new dwellings is also perceived to be unacceptable and extraordinary. These concerns were not substantially diminished by the amendments proposed by the applicant.
2. The substantive issues which arise from these concerns are dealt with elsewhere in these reasons, however there are a number of other matters raised which we think are worthy of comment. It is argued that the proposed development will overtax existing infrastructure i.e.:
   • Queues at service stations and supermarkets will increase;
   • Increased demand for car parking spaces at railway stations;
   • Increased traffic problems;
   • Increased demand for bus service, that is already inadequate;
   • Longer waiting times for local doctors and at Sandringham Hospital;
   • Increased demands on local schools, kindergartens and libraries;
3. Increases in population do increase demand for infrastructure. Demand for housing rises in response to increasing population and this is the driver of the current proposal.
4. Council estimated that the proposal will result in a population increase of between 600 and 800 persons, in our view this is an acceptable albeit conservative assessment, particularly if it is intended to be an assessment of the increase in permanent residence. The future residents of the proposed dwellings are likely to be quite diverse but there will be a preponderance of relatively young households without children. This is not a population which would place disproportionate demands on community services.
5. We make the following observations:
   • The future residents of the proposed developments must inevitably be accommodated somewhere within the metropolitan area, their demands for infrastructure and services will fall on some community;
   • The Bayside municipality is relatively prosperous community, it would be surprising if this community was less able than other communities to accommodate new residents because of the inadequacies of its existing infrastructure, or its ability to respond to increased demands for infrastructure and services;
   • The future residents of this development will be ratepayers, and tax payers, and will themselves contribute to the infrastructure and services they use;
   • There is no suggestion that the proposed dwellings will result in an oversupply of dwellings within Bayside and are unnecessary for Bayside to achieve its long term population targets.

1. Bay Road is a reasonably important arterial road, but it has an intrinsically limited capacity, and at peak hours operates close to its maximum capacity. It is conservatively estimated that the proposed development will result in an increase in traffic on Bay Road of something less than 10% of existing volumes.
2. Access to the land is relatively unconstrained with a proposal for signalisation of the main entrance to the proposed development being agreed between the applicants and VicRoads. The most congested intersection, most closely affected by the proposed development is the intersection of Bluff Road and Bay Road. An assessment of the function of this intersection allowing for both the anticipated traffic generation of the subject land, and long term growth on the network found that the intersection would continue to function acceptably.
3. We are satisfied that the assumptions used to assess the traffic impacts of the proposed development are intrinsically conservative, and demonstrate acceptable traffic impacts. The incorporation of a signalised intersection at the main entry to the site has the benefit that it creates another safe pedestrian crossing point, on Bay Road, and is likely to make access to and from nearby sites and minor streets easier because of the breaks it creates in the traffic flow.
4. Respondent objectors expressed a concern that the proposed development will increase the problem of rat running traffic through residential street south and north of Bay Road. We suppose it is the case that if there is a 10% increase in traffic volumes as a consequence of the development there may be a consequential 10% increase in the incidents of rat running traffic in the streets immediate approximate to the site. However, this traffic impact assumption is conservative, and any such effects would dissipate rapidly as you move away from the immediate environs of the site. It should be recognised that redevelopment of the land as a business park, in a way also envisaged by the policies relation to the Business Employment Area, could easily have greater traffic impacts in the peak periods.

1. The proposal requires a reduction in the car parking requirement derived from the table to clause 52.06- Car Parking. However a simple reassessment of car parking demand, using the ResCode standards for residential car parking, quickly results in a situation where there is an oversupply of onsite car parking. It is the applicant's intention to utilise this oversupply to offer the purchasers of two bedroom dwellings the opportunity of acquiring a second car space.
2. Respondent objectors were concerned about the adequacy of the proposed car parking and the risk that residents and their visitors would clutter nearby streets with overflow car parking. We are satisfied that if drivers associated with this development park in nearby streets, it would not be because there is inadequate on site car parking or access to the available car parking on site is difficult.
3. The applicants propose to provide visitor car parking for dwellings at a rate less than the ResCode rate of 0.2 car spaces per dwelling. This reduction was supported on the basis of a survey at Beacon Cove in Port Melbourne, the applicability of this survey to the land was contentious.
4. In our view the visitor car parking issue was resolved by the fact that:
   • Throughout the development the design includes indented drop off points which are essentially intended to be spaces at which taxis can drop off residents, furniture vans could be unloaded and the like. It is likely that these drop off areas will also be utilised by visitors and are a significant extra visitor parking resource;
   • Ms Dunstan recommends that 13 car spaces which were to be set aside for car share spaces should be allocated as visitor car spaces, because in her view car share spaces are unlikely to be substantially utilised given the high level of car parking supply, this change makes another substantial addition to the provision of visitor car spaces.

1. It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be set aside and a permit be granted.
2. In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.

1. Prior to the commencement of works amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of this permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:
   • (a) Improvements to the aesthetics and/or amenity of the long central hallways in the central building and associated improvements to the natural lighting and ventilation of the these hallways;
   • (b) A notation on the plan indicating that the area shown as being used for the purpose of medical centre can alternatively be used in whole or in part for the purpose of office;
   • (c) A notation on the plan indicating that the area shown as being used for the purpose of any SOHO apartment can alternatively be used solely for the purpose of office;
   • (d) Water Sensitive Urban Design features in accordance with the requirements of Condition 12of this permit.
   • (e) Environmentally sustainable design measures in accordance with and environmentally sustainable design report and implementation strategy, prepared by a suitably qualified expert, submitted to and approved by the Responsible Authority;
   • (f) Each SOHO apartment to be provided with an independent secluded area of private open space.
   • (g) A minimum of 6 cubic metres of storage must be provided in the basement for each dwelling/tenancy.
   • (h) A 2 metre high opaque fence on that part of the boundary with Sandringham Secondary College that does not adjoin the school's sports ground;
   • (i) Landscape plan in accordance with condition 3 of this permit.
   • (j) The provision of underground services and the provision of an on-site substation.
   • (k) Any proposed staging of the development including a detailed works programme.
   • (l) All building heights to be shown on the plans in metres above Natural Ground Level.
   • (m) Relevant plan related outcomes arising from Melbourne Water and VicRoads conditions;
   • (n) Basement ramps, transitions and headroom clearances; car parking spaces disabled spaces and loading bays to comply with the relevant Australian Standards and all dimensions to be shown on the plans.
   • (o) The location of all plant and equipment including baffling as required to ensure compliance with State Environment Protection Policy (Control of Noise from Commercial, Industrial or Trade Premises within the Melbourne Metropolitan Area) No. N-1.
   • (p) All pipes, fixtures, fittings and vents servicing any building on the site except downpipes must be concealed in service ducts or otherwise hidden from view.
   • (q) Lift structures (including lift overruns mounted above the roofline of the buildings) must be shown on the plans and must not exceed 2.4 metres in height above the finished roof level.
   • (r) A detailed schedule and description of construction materials, external finishes and colours (incorporating samples). The exterior colour and cladding must be of a non-reflective nature.
   • (s) The internal layout and proposed seating plan for the cafe.
2. The use and development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
3. Prior to the commencement of works a Landscape Plan must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of this permit. The plan must be generally in accordance with the Landscape Master Plan by Tract Consultants. The plan must be drawn to scale with dimensions and three copies must be provided. The landscaping plan must incorporate planting that is complementary and compatible with the Heathland species and must show:
   • (a) trees to be removed, both on-site and in the road reserve, generally in accordance with the plan CG109230 T 01 rev. P1 tabled at the hearing of Victorian Civil And Administrative Tribunal application P2392/2010,
   • (b) details of surface finishes of pathways and driveways.
   • (c) a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant.
   • (d) landscaping and planting within all open areas of the site.
   • (e) All species selected must be to the satisfaction of the Responsible Authority.
   • (f) The landscape plan must also indicate that an in-ground irrigation system is to be provided to all landscaped areas.
4. Before the occupation of any building, all works relevant to that building including landscaping shown on endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
5. The landscaping shown on the endorsed plans must be maintained (including that any dead, diseased or damaged plants are to be replaced) to the satisfaction of the Responsible Authority.
6. Before any land use commences, a Green Travel Plan must be prepared to the satisfaction of the Responsible Authority following consultation with the Department of Transport (Public Transport Division). The plan must be prepared by a suitably qualified person and must encourage the use of non-private vehicle transport modes by the occupiers of the land. The plan must include, but not limited to the following:
   • (a) A description of the location in the context of alternative modes of transport, including walking, cycling and objectives for Green Travel Plan;
   • (b) Outline Green Travel Plan measures for the development including but not limited to:
     • (i) Household welcome packs - train and bus timetables relevant to the local area must be included in the pack of information provided to purchasers upon a purchaser's occupation of an apartment;
     • (ii) Include a minimum of 10 x 2 hour metcard (zone 1 & 2) within the household welcome pack or a myki rail pass (of equivalent value) and registration information;
     • (iii) Bicycle parking and facilities available on the land;
     • (iv) Local walking paths and networks to key destinations;
     • (v) Monitoring and review; and
     • (vi) A plan showing the bicycle parking areas to be provided for use by residents
7. The Green Travel Plan must not be amended without written consent of the Responsible Authority following consultation with the Department of Transport (Public Transport Division).
8. Once approved the Green Travel Plan must form part of the planning permit and any ongoing Management Plan for the land to ensure the Green Travel Plan continues to be implemented by residents/owners to the satisfaction of the Responsible Authority.
9. Prior to the commencement of any works, a Construction Management Plan shall be submitted to and approved by the Responsible Authority. When approved, the Construction Management Plan will then form part of this permit. The Construction Management Plan, is not limited to but must include measures relating to:
   • (a) Hours of construction;
   • (b) Control of noise, dust and litter;
   • (c) Vehicle access and deliveries;
   • (d) Protection of public assets;
   • (e) Communication with the council and the public;
   • (f) The management of construction vehicles and construction vehicle parking;
   • (g) Prevention of the deposition of mud or other materials on roadways.
   • (h) The protection of pedestrian access along the laneway to the west on the land;
   • (i) The protection of the natural values of Heathland flora and fauna.

The Construction Management Plan must be implemented to the satisfaction of the Responsible Authority. The Construction Management Plan must not be modified unless with the prior written consent of the Responsible Authority.

1. Before commencement of works, a Traffic and Parking Management Plan to the satisfaction of VicRoads and Bayside must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of this permit. Three copies of the plan must be submitted. The plan must include but is not limited to:
   • (a) The allocation of car parking for commercial uses in accordance with endorsed plans;
   • (b) Signs and pavement markings to direct and control the flow of traffic within and exiting the site including for the basement and loading areas. This includes warning signs for drivers and pedestrians.
   • (c) Lighting and security arrangements within the basement.

The Traffic and Parking Management Plan must be implemented to the satisfaction the Responsible Authority. The parking management plan must not be modified unless with the prior written consent of the Responsible Authority.

1. Before commencement of works, a Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of this permit. Three copies of the plan must be submitted. The plan must include but is not limited to:
   • (a) No bins stored on Bay Road.
   • (b) Provision on the site for the collection of garbage and other solid waste by private contractor. This area must be graded and drained and screened from public view.
   • (c) All waste material not required for further on-site processing must be regularly removed from the site. All vehicles removing waste must have fully secured and contained loads so that no wastes are spilled or dust or odour is created.
   • (d) No vehicles permitted to obstruct the pedestrian access to the school.

The Waste Management Plan must be implemented to the satisfaction the Responsible Authority. The Waste Management Plan must not be modified unless with the prior written consent of the Responsible Authority.

1. Before the commencement of works, a detailed Stormwater Plan must be submitted to and be approved by the Responsible Authority. When approved, the Stormwater Plan will be endorsed and will then form part of this permit. The Stormwater Plan must include plans be drawn to scale with dimensions and three copies must be provided. The plans must be in accordance with the guidelines outlined in Clause 22.10 of the Bayside Planning Scheme and must show:
   • (a) The type of water sensitive urban design stormwater treatment measures to be used;
   • (b) The location of the water sensitive urban design stormwater treatment measures in relation to buildings, sealed surfaces and landscaping areas; and
   • (c) Design details of the water sensitive urban design stormwater treatment measures, including cross sections.

the Stormwater Plan must demonstrate compliance with the Urban Stormwater Best Practice Environmental Management Guidelines, CSIRO 1999 to the satisfaction of the Responsible Authority.

1. The water sensitive urban design stormwater treatment system as shown on the endorsed Stormwater Plan must be implemented, retained and maintained at all times in accordance with the Urban Stormwater - Best Practice Environmental Management Guidelines, CSIRO 1999 to the satisfaction of the Responsible Authority.

1. The number of medical practitioners in the Medical centre must not exceed 20 medical practitioners at any one time..
2. Except with the consent of the responsible authority the café can only be open to the public between 7.00am and 11.00pm any day.
3. Before any building is occupied, the area(s) set aside for the parking of vehicles and access lanes as shown on the endorsed plans for that building, must be:;
   • (a) Constructed;
   • (b) Properly formed to such levels that they can be used in accordance with the plans;
   • (c) Surfaced with an all-weather-seal coat;
   • (d) Drained;
   • (e) Line marked to indicate each car space and all access lanes; and
   • (f) Clearly marked to show the direction of traffic along access lanes and driveways.

Car spaces, access lanes and driveways must be kept available for these purposes at all times to the satisfaction of the Responsible Authority.

1. Vehicular crossing(s) must be constructed to the road to suit the proposed driveway(s) to the satisfaction of the Responsible Authority and VicRoads. Any redundant existing crossing or crossing opening must be removed and replaced with footpath, nature strip, and kerb and channel to the satisfaction of the Responsible Authority and VicRoads. All costs associated with compliance with these requirements must be borne by the permit holder.
2. At no cost to VicRoads or the Responsible Authority, the permit holder is responsible for the relocation of any power poles, trees, guard posts, road furniture or services that may be required to construct the approved development.
3. Prior to the commencement of any works (including demolition), tree protection fences must be erected around the street trees and must be retained to define a 'Tree Protection Zone'. The fences must be constructed of star pickets and chain mesh or similar to the satisfaction of the Responsible Authority. The tree protection fences must remain in place until all construction works are completed.

The ground surface of the Tree Protection Zone must be covered by a 100 mm deep layer of mulch before the development starts and be watered regularly to the satisfaction of the Responsible Authority.

1. No vehicular or pedestrian access, trenching or soil excavation is to occur within the Tree Protection Zones without the written consent of the Responsible Authority. No storage or dumping of tools, equipment or waste is to occur within the Tree Protection Zone.
2. Any pruning that is required to be done to the canopy of any street tree and any pruning of the root system of any street tree must only be carried out by or on behalf of the Responsible Authority to the satisfaction of the Responsible Authority.
3. Noise levels emanating from the premises must not exceed those required to be met under State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1 to the satisfaction of the Responsible Authority.
4. All security alarms or similar devices installed on the site must be of a silent type in accordance with any current standard published by Standards Australia International Limited and be connected to a security service.
5. External lighting (domestic and commercial) must be designed, baffled and located so as to prevent any adverse effect on adjoining land and in particular the Heathland, to the satisfaction of the Responsible Authority.
6. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building(s) without the written consent of the Responsible Authority.
7. Plans for the construction of the outfall drain must be approved by the Responsible Authority in writing prior to the commencement of any works.
8. Drainage must be to the satisfaction of the Responsible Authority. Any paved areas must be graded/drained to prevent stormwater discharge into adjacent properties. No polluted and/or sediment laden run-off is to be discharged directly or indirectly into drains or watercourses and pollution or litter traps must be provided on site to the satisfaction of the Responsible Authority.
9. The use and development must be managed so that the amenity of the area is not detrimentally affected, including through the:
   • (a) transport of materials, goods or commodities to or from the land;
   • (b) appearance of any building, works or materials;
   • (c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; and
   • (d) presence of vermin.

1. The permit holder must ensure that public transport infrastructure is not altered without the consent of the Director of Public Transport or damaged. Any damage to public transport infrastructure must be rectified to the satisfaction of the Director of Public Transport at the full cost to the permit holder.
2. The east and west access streets must not impact on the existing bus movements in Bay Road to the satisfaction of the Director of Public Transport.

1. No polluted and / or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
2. Any new building must be constructed with finished floor levels a minimum of 300mm above the applicable flood level.
3. The entry / exit driveway of the basement car park must incorporate a flood proof apex of a minimum of 300mm above the applicable flood level.
4. All doors, windows, vents and openings to the basement car park must be a minimum of 300mm above the applicable flood level.
5. Any drainage system to the basement must be designed such that stormwater is unable to penetrate the basement.
6. Prior to the issue of a Certificate of Occupancy, a certified survey plan, showing finished floor levels (as constructed) reduced to the Australian Height Datum, must be submitted to Melbourne Water to demonstrate that the floor levels have been constructed in accordance with Melbourne Water's requirements.
7. Prior to the commencement of any works, detailed landscaping plans must be submitted to Melbourne Water for approval that shows the location, density and species.
8. At least 21 days prior to commencement of works, a Site Management Plan detailing pollution and sediment control measures, must be submitted to Melbourne Water.
9. The building/structure including footings, eaves etc must be set outside any easement or a minimum 1.5 metre laterally clear of the outside edge of the main drain, whichever is greater.
10. Prior to the commencement of works, the depth of the footings must be adequate to satisfy the angle of repose relative to the drain as per Melbourne Water's specification.
11. Prior to the commencement of works, direct to Melbourne Water, must be made for any new or modified storm water connection to Melbourne Water's drains or watercourses.

1. Prior to the commencement of any road works detailed engineering layout must be submitted to and approved by VicRoads. The plan must be generally in accordance with the functional layout CG109230 (Revision P1) dated 22 November 2010 prepared by Cardno Grogan Richards.
2. Prior to the commencement of road works, public lighting and traffic signal layouts consistent with the approved functional layouts must be submitted to and approved by VicRoads.
3. An independent Road Safety Audits (RSA's), conducted by a VicRoads pre-qualified consultants and in accordance with Austroads Road Safety Audit Guidelines (2009), shall be completed at that Detailed Design Stage (including traffic signal, public lighting layouts) and Post-Opening Stage, and the associated reports are to be submitted to VicRoads for approval. Any identified issues must be addressed to VicRoads' satisfaction.
4. The signal installation works must be carried out to VicRoads' standards by a VicRoads pre-qualified signals contractor (STS Metro). VicRoads will arrange for the supply and installation of traffic signal controllers and telecommunications and power connections, at an appropriate time, and all at the Permit holder's expense.
5. Prior to the commencement of the road works the developer must:
   • (a) Apply for and receive written consent from VicRoads, for the road works in accordance with Section 63 of the Road Management Act
   • (b) Provide a payment to VicRoads for all costs associated with the installation of public lighting, including the predetermined cost of 10 years maintenance, where public lighting is required.
   • (c) Provide a payment to VicRoads for all costs associated with the installation of traffic signals, including the predetermined cost of 10 years maintenance.
   • (d) Provide a bank guarantee, without a termination date, in favour of. VicRoads for a sum equal to the estimated cost of roadworks associated with access arrangements to Bay Road.
   • (e) Provide evidence that the contractor has a public liability Insurance policy for at least $10 million that will be effective for the duration of the works.
   • (f) Provide VicRoads with the name, address business and out-of- hours telephone numbers of the principal roadworks contractor.
   • (g) Submit to VicRoads for approval, a Traffic Management Plan showing the proposed provision for traffic and signing for the duration of the works at least 21 days prior to the commencement of works.
   • (h) Arrange for the contractor to contact the VicRoads surveillance coordinator on telephone number 9881 8079, at least (14) working days prior to the commencement of roadworks. Please note that the contractor will be charged for the actual cost of VicRoads surveillance which may be undertaken at certain key times during the works.
6. Where any road works, footpath or other road features lie outside of the existing declared road reserve, a widening of the road reserve will be required, at a cost borne by the permit holder. A licensed surveyor must be engaged to prepare a plan of subdivision to the satisfaction of VicRoads showing the affected land labelled "ROAD", which is to vest the Roads Corporation without any encumbrances. Subsequent to the registration of the plan, the permit holder shall ensure that the original Certificates of Title that issue in the name of the Roads Corporation shall be forwarded via registered post to: VicRoads - Property Services Department, 60 Denmark Street KEW, 3101
7. Prior to the occupation or use of the permitted development, the proposed accesses and the associated roadworks must be completed in accordance with the approved detailed engineering plans to the satisfaction of VicRoads.
8. The developer must arrange for and pay the full costs of all roadworks including service relocations, drainage works, traffic signals, pavement markings, public lighting and surveillance, and other costs that may arise as a result of the proposed development.

1. This permit will expire if one of the following circumstances applies:
   • (a) the use and development and use is/are not started within two years of the date of this permit.
   • (b) the development is not completed within six years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

[1] Both dwelling numbers include 32 serviced apartments.

[2] Similarly clause 21.07 Business Employment Area at clause 21.07-3, objective 4, includes a strategy to Discourage residential uses from locating at ground level fronting Bay Road to maintain the business/commercial focus of the area.

[3] Comprising a small ground floor office attached to a 1 or 2 bedroom apartment.

[4] During the course of the hearing the applicant indicated that it will accept a condition requiring that the Soho apartment be converted to be purely office spaces if we consider that necessary from a planning policy perspective. We do not think that this is necessary, and it maybe that home offices are more attractive to the market than standalone office spaces. Nevertheless, we do propose to frame the permit so that the SOHO apartments and medical centre (or parts of it) can be transformed into an office use without the need for further permission. The generosity of the proposed car parking supply will easily accommodate any small changes in car parking demand.

[5] We were advised that there has been a review of bus services in Bayside and Kingston, and there is a recommendation for upgrades to the existing bus service on Bay Road. This recommendation was not funded in the first round of upgrades, but its priority is likely to be affected by developments in the Business Employment Area.

[6] Including visitor car parking demand.

[8] An impression quickly lost from an oblique view of this long façade.

[9] On inspection it was clear that this area had been used for this purpose although it did not appear to be in use at the time of inspection