appellant. The Tribunal set aside the Responsible Authority's decision (failure to decide) and granted a permit for a four-storey building of 25 dwellings with basement car park at 1062 & 1064 Burke Road,...
Key principles
The Tribunal concluded that the proposed four-storey residential building "is an appropriate response to this site" having regard to the evidence on urban design, neighbourhood...
The Tribunal held that the proposal "satisfies both state and local planning policy," applying Clause 11 (integration and balancing of policy), and that policy considerations...
On traffic and access, the Tribunal accepted the applicant's traffic evidence and VicRoads' concurrence that the access arrangements could be made satisfactory by adopting the...
Where issues of internal amenity and potential off-site impacts were raised by Council's urban designer, the Tribunal found that the relevant matters had been addressed...
Issues before the court
Whether VCAT should grant a permit for a four-storey residential development after review of the Responsible Authority's failure to decide under s79...
Plain English Summary
The applicant applied to build a four-storey, 25-apartment building with basement at a corner site on two arterial roads. Council did not decide the permit in time; VCAT reviewed the matter. After hearing expert evidence (planner, traffic engineer, Council urban designer) and considering revised plans and VicRoads' technical input, the Tribunal found the building an appropriate response to the site and consistent with relevant state and local planning policy. Traffic and access issues were addressed by conditions referring to TTM Consulting drawings and VicRoads' requirements. The Tribunal set aside the Council's non-decision and ordered that a permit be issued subject to detailed conditions (landscaping, waste and construction management plans, ESD rainwater collection, contamination evidence, parking, etc.).
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,656 words · generated 07/09/2026
Whether the proposed vehicle access and basement ramp would create unacceptable traffic hazards on Belmore Road (a Road Zone Category 1) and whether...
Whether internal amenity, overshadowing and impacts on northern neighbours justified refusal.
Whether contamination concerns required an Environmental Audit before development or could be addressed by evidence of suitability for residential...
Cited legislation
No linked legislation citations have been extracted yet.
What happened
Belmore Rise Pty Ltd applied to Boroondara City Council for a permit to construct a four‑storey building comprising 25 dwellings with a basement car park at 1062–1064 Burke Road, Balwyn North. The site is a prominent corner fronting two arterial roads (Burke Road and Belmore Road), each in Road Zone Category 1. The Responsible Authority failed to make a decision within the prescribed time, so the applicant sought review at VCAT under s79 of the Planning and Environment Act 1987 [Reasons 1].
The applicant amended and refined plans during the process, filing revised plans (Revision A dated 19 February 2009 and further revisions on 25 March 2009) which included changes to access arrangements and certain design refinements. The revised plans were referred to VicRoads. VicRoads responded that it was satisfied subject to changes identified in TTM Consulting drawings 619503 and 619504 (Issue A, 2 March 2009) [Zoning and other controls 3].
At the hearing (25 March 2009) evidence was called from the applicant’s town planner and traffic engineer; the Responsible Authority called its urban designer. The Tribunal examined urban design issues (height, setbacks, massing, landscaping), internal amenity of apartments, parking and traffic access, and contamination concerns. The Tribunal concluded that the proposal was an appropriate response to the site and satisfied relevant state and local planning policy, and that traffic/access issues could be addressed by conditions and the TTM drawings to which VicRoads had referred [11], [15]–[17], [20]. VCAT set aside the Responsible Authority’s non‑decision and directed that a permit be granted under s85(1)(b), subject to detailed conditions (amended plans, landscaping, waste and construction management plans, access in accordance with specified drawings, ESD measures such as rainwater collection for garden irrigation, evidence on contamination suitability, car parking allocations, etc.) [Order; Decision].
Why the court decided this way
The Tribunal’s reasoning rests on three interlocking assessments:
Site context, design response and policy balance: The Tribunal accepted the applicant’s evidence that the building’s two lower levels form a podium and the upper two levels are recessed, a treatment which reduces perceived bulk and is responsive to both Burke Road and Belmore Road and to neighbouring dwellings to the north. The Tribunal expressly found that the proposal “is an appropriate response to this site” [11]. It also held that the proposal “satisfies both state and local planning policy,” invoking Clause 11’s direction to integrate and balance policy objectives in favour of net community benefit and sustainable development [16]–[17]. On that basis the Tribunal was persuaded the development’s height, density and form could be tolerated at this prominent, well‑served location.
Amenity and neighbourhood character concerns: Council’s urban designer raised concerns about setbacks, opportunities for landscaping, internal amenity (southerly orientation of some units), and the building’s response to the corner. The Tribunal accepted that some improvements could be made and that the Council’s witness had “perceptive observations” [5]. However, it weighed those concerns against the applicant’s evidence (including design refinements) and found that the building’s design, notably the recessed upper levels and podium treatment, appropriately limited off‑site impacts and provided an acceptable internal amenity outcome for most apartments [11]–[14]. The Tribunal declined to require uses such as a cafe or gym to activate the corner, noting it could not compel an applicant to include such uses; that observation was explicitly described as a practical comment rather than a legal directive [13].
Traffic and access: Where Council feared traffic hazards from a single width ramp and access on Belmore Road, the applicant produced traffic engineering evidence and revised access drawings. VicRoads indicated technical satisfaction subject to the TTM drawings. The Tribunal accepted the applicant’s traffic evidence and VicRoads’ conditional approval, and imposed conditions adopting the TTM Consulting drawings for vehicle access to address Council’s concerns [15], [20]. This meant that traffic objections did not justify refusal.
Where matters remained in issue, landscaping, waste management, construction hours and contamination, the Tribunal used conditions to secure compliance before commencement or occupation (for example, requiring evidence that the site is suitable for residential use with regard to contamination) [21], [23], [27]. The Tribunal therefore granted the permit subject to robust conditions.
Before and after state of the law
Before this decision: VCAT decisions routinely balance competing planning objectives, urban consolidation and higher density near transport corridors versus neighbourhood character and amenity concerns, with the planning scheme and referral authority inputs. Clause 55 does not apply to buildings of four or more storeys, so the Tribunal must apply a more general design and policy analysis for such proposals (this point is made in the reasons: Clause 55 does not apply to buildings of four or more storeys) [Zoning and other controls 1].
After this decision: The judgment illustrates VCAT’s practical approach in a corner arterial context. VCAT confirmed that where a referral authority (VicRoads) is satisfied subject to technical drawings and conditions, traffic objections may be overcome by imposing the appropriate conditions. The decision reinforces that Tribunal is prepared to grant permits for taller medium-density development where the proposal, including upper-level setbacks and podium treatment, is demonstrated to be responsive to context and policy, subject to conditions to manage off‑site impacts and amenity.
This is not a case that creates a new legal test, but it is a clear illustration of VCAT’s balancing role in contested permit matters, its willingness to accept technical evidence to overcome specific objections (notably traffic), and its preference to use conditions to manage discrete risks (waste, landscaping, contamination).
Key passages with plain-English translation
"This is an Application under Section 79 ... for review of the failure ... to grant a permit within the prescribed time." [1]
Plain English: The applicant applied to VCAT because Council did not decide the permit in time, and VCAT is reviewing that non‑decision under s79.
"The revised plans ... were provided to VicRoads. VicRoads advised ... that it was satisfied ... subject to further changes as set out in the TTM Consulting ... drawings." [Zoning and other controls 3]
Plain English: The technical road authority reviewed the new access plans and said they were OK provided the applicant adopts specific technical drawings; VCAT gives weight to that technical input.
"I consider that the proposed building is an appropriate response to this site." [11]
Plain English: After weighing the evidence, the Tribunal concluded the design, height and massing fit the particular corner site and are acceptable.
"I consider that the proposal satisfies both state and local planning policy." [16]
Plain English: The Tribunal found the proposal aligns with the objectives and policies in the planning scheme, when balanced appropriately.
"For the above reasons it is appropriate that a permit subject to conditions be granted. I will so order." [Decision]
Plain English: The Tribunal granted the permit, but only with the listed conditions attached.
What fact patterns trigger this precedent
This decision is most directly relevant where:
A permit is sought for medium‑density residential development (including four storeys) on a prominent corner site or near arterial roads; and
The Responsible Authority fails to decide in time and the applicant seeks review under s79; and
There are technical referral authority issues (particularly VicRoads and access to Road Zone Category 1); and
There is expert evidence on urban design and traffic (conflicting expert views), and the applicant files revised plans during the proceeding to address concerns; and
The Tribunal can identify specific, manageable conditions to address outstanding matters (traffic drawings, landscaping, waste management, contamination evidence).
In such factual matrices, this decision illustrates the Tribunal’s willingness to grant permits where the proposal can be shown to respond to policy and context and where technical concerns can be remedied by conditions.
How later courts have treated it
This decision is a VCAT decision at first instance by Senior Member Sharkey. It is a typical example of VCAT’s practice in planning permit reviews. The judgment is not reported as a higher court precedent; its weight is persuasive within subsequent VCAT panels and helpful to practitioners arguing similar factual situations. It illustrates how VCAT treats VicRoads’ technical input and how it balances urban design commentary with the applicant’s design justification. Any later treatment by courts or tribunals will focus on its factual reasoning rather than establishing new legal principle.
Still-open questions
Degree of deference to referral authorities: While VCAT accepted VicRoads’ conditional satisfaction here, tension can arise where a responsible authority and a referral authority disagree. The judgment does not set out a precise hierarchy; rather, it shows VCAT will give weight to technically reasoned conditions from referral authorities but will also assess the applicant’s evidence in the round [Zoning and other controls 3; Reasons 15, 20].
Clause 55 non‑applicability and alternative assessment approach: The case notes Clause 55 does not apply to buildings of four or more storeys, but does not elaborate a detailed alternative checklist. Practitioners must therefore rely on general policy and design evidence; the decision exemplifies how Tribunal applies that more flexible approach [Zoning and other controls 1; Criteria for Decision].
Limitations of conditions: The Tribunal imposed conditions to manage many concerns (access, landscaping, waste, contamination). The judgment illustrates that VCAT will use conditions extensively, but questions remain about when conditions can adequately mitigate matters (eg significant amenity impacts or unresolved technical risks) so as to justify approval.
Market forces versus planning direction for activation: The Tribunal observed that it cannot require an applicant to include commercial activation (eg café) to animate a corner; it left that decision to the developer’s market judgment [13]. That raises practical questions for councils about how to secure ground‑floor activation in mixed residential/commercial precincts where planning controls do not mandate uses.
This is general legal information, not legal advice. I can make mistakes. Before you rely on this analysis or act on any draft, get a qualified Australian lawyer to check it.
Judgment (22 paragraphs)
[1]
The application is amended by substituting in it the Elevli Cameron plans, being job number 07_386 TP02 to TP09 inclusive, all Revision A dated 19 February 2009, except for TP04 and TP09 which are Revision C and dated 25 March 2009.
The decision of the Responsible Authority is set aside, and a permit is granted for a four storey building at 1062 & 1064 Burke Road, Balwyn North comprising 25 dwellings plus a basement car park, reinstatement of redundant vehicle accesses to roads in a Road Zone Category 1 and a new vehicle access to a road in a Road Zone Category 1, reduction of car parking below the rate provided for in the planning scheme and reduction of bicycle facilities below the level provided for in the planning scheme, in accordance with the plans to be endorsed as part of the permit and subject to the following conditions:
Before the development starts, 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 the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must generally be in accordance with the Elevli Cameron plans substituted in the permit application by the Tribunal being Job No. 07_386, TP02 to TP09 inclusive, all being Revision A dated 19 February 2009 except for TP04 and TP09 being Revision C dated 25 March 2009, but modified as follows:
(a) Pedestrian access from Burke Road for Unit 1 and Unit 9;
(b) The vehicle access being in accordance with the TTM Consulting Pty Ltd drawing no 619504 Issue A dated 2 March 2009;
(c) The vehicle access to the basement car park being in accordance with the TTM Consulting Pty Ltd drawing no 619503, Issue A dated 2 March 2009;
(d) Rain water collection and storage for garden irrigation;
(e) The provision of bicycle facilities;
(f) The re-instatement of kerbs, footpaths and nature strips in place of redundant vehicle crossings to Burke Road and Belmore Road;
(g) The provision of a street tree within the naturestrip facing Burke Road;
(h) The provision of a Waste Management Plan, in accordance with Condition 15;
(i) The provision of a Landscape Plan, in accordance with Condition 8;
(j) The provision of a Construction Management Plan, in accordance with Condition 16;
(k) A schedule of external materials finishes and colours.
The development as shown on the endorsed plans must not be altered without the written permission of the Responsible Authority.
This permit will expire if:
(a) The development does not start within two (2) years from the date of this Permit; or
(b) The development is not completed within four (4) years from the date of this Permit.
[2]
The Responsible Authority may extend the times referred to if a request is made in writing before this Permit expires or within three (3) months after the expiry date.
[3]
Buildings must not be constructed over any easement or other restriction on the land or any sewers, drains, pipes, wires or cables under the control of a public authority without the prior written consent of the relevant authority and the Responsible Authority.
All outdoor lighting must be baffled and/or located to prevent light from the site causing unreasonable detriment to the locality to the satisfaction of the Responsible Authority.
Plant, equipment, services and architectural features, other than as shown on the endorsed plans, must not be located above the roof level of the building without the prior written consent of the Responsible Authority.
Walls on or facing boundaries of the subject must be cleaned and finished to the satisfaction of the Responsible Authority.
Before the development starts a Landscape Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When the plan is approved, it will be endorsed and will then form part of the permit. The plan must incorporate:
(a) Buildings and trees (including botanical names) on neighbouring properties within 3 metres of the boundary;
(b) A planting schedule of all proposed vegetation including botanical names; common names; pot sizes; sizes at maturity; quantities of each plant; and details of surface finishes of pathways and driveways;
(c) Details of irrigation, water collection and planting beds for planting over the basement;
(d) Landscaping and planting within all open space areas of the site;
(e) Three advanced canopy trees (minimum 2.0 metres tall when planted) in the Burke Road front setback;
(f) Trees not sited over easements;
(g) Selected species.
The landscaping as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority before the occupation of the development, or prior to any later date as is approved by the Responsible Authority in writing.
The landscaping as shown on the endorsed plans, must be maintained, and any dead, diseased or damaged plants replaced in accordance with the plans, to the satisfaction of the Responsible Authority.
[4]
(b) Measure to control noise, dust, water and sediment laden runoff;
(c) The location of parking areas for construction, employee and subcontractor vehicles on the site, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises and traffic flows;
(d) The basement car park made available for use by construction, employee and subcontractor vehicles, as soon as practicable, to the satisfaction of the Responsible Authority;
(e) Measures to ensure that subcontractors and employees on the site are made aware of the contents of this Plan as soon as practicable;
(f) Contact details of key construction site staff;
(g) The location of site sheds and other facilities;
(h) Any other relevant matters, including VicRoads requirements.
[5]
Before the development starts evidence to the satisfaction of the Responsible Authority that the site is suitable for residential use, having regard to contamination issues, must be submitted to and approved by the Responsible Authority.
Ms S Byrne, Principal Planner. Ms Byrne called the following expert witness:
[9]
This is an Application under Section 79 of the Planning and Environment Act1987("the Act") brought by the Permit Applicant for review of the failure of the Boroondara City Council ("the Responsible Authority") to grant a permit within the prescribed time.
[10]
Construct buildings and construct and carry out works for 25 dwellings.
[11]
Ms Byrne, in her written submission for the Responsible Authority, said:
[12]
This application for review concerns Council's failure to make a decision within the prescribed time. The application seeks to:
[13]
Construct more than 1 dwelling on a lot.
Alter and re-instate redundant access to a road in a Road Zone, Category 1.
Reduce car parking below the standard rate for a dwelling under Clause 52.06 of the Planning Scheme.
Reduce bicycle facilities below the standard rate for dwellings under Clause 52.34 of the Planning Scheme.
[14]
Ms Byrne set out the permissions required under this application. There was no objection and I amended the permit application accordingly.
Connell Wagner Pty Ltd for the applicant for review/permit applicant, filed and served revised plans under cover of letters dated 23 February 2009. The changes contained in the revised plans were listed as follows:
Variation to the proposed access via Belmore Road generally in accordance with the recommendations of VicRoads.
Consequential changes to the basement level as a result of the proposed access, generally refined to the siting of bin areas and car parking information.
Amendments to the balcony areas to be consistent with the requirements of Rescode Standard B28.
Amendment to the balcony of Unit 10 to protrude into the airspace below in order to bring about an increase in its size and also give it a northerly aspect.
Relocation of the north facing balcony of Unit 17 to the western façade to provide symmetry with the balcony of Unit 10, ensuring it has a north face as well. Other consequential changes to the internal arrangement of Unit 17 occur as a result of this amendment.
Delete the study to Units 10 & 24 and incorporate them as part of living/dining rooms.
Amendments to all floor plans to show the entire site and relevant boundary setbacks.
Updated 'Design Response Plan' in order to correctly demonstrate the amendments to the building envelope.
Consequential internal arrangements to second and third floor apartments.
Inclusion of coloured elevations and a schedule of materials and finishes.
Mr Cicero made application for the permit application to be amended by substituting in it the revised plans. There being no objection I amended the permit application accordingly.
Mr Cicero subsequently tendered two further revised plans being TP04, Proposed Ground Floor Plan, and TP09, Streetscape and Sections. These further revised plans provided for planter boxes along the Burke Road and Belmore Road frontages. There being no objection I further amended the permit application by substituting in it these additional revised plans.
[15]
The subject land is on the northeast corner of Burke Road and Belmore Roads. Both roads are busy arterial roads and each is in a Road Zone Category 1. The land on Burke Road north of the subject land is predominantly developed for residential purposes. Stradbroke Park is on the north west corner of the intersection opposite the subject land and north of Stradbroke Park is the Kew High School.
The Stradbroke Village Shopping Centre is on the east and west sides of Burke Road south of Belmore Road. The shops in the Stradbroke Village shopping centre are attached and are double storey, except for the two shops on the southwest corner which are single storey.
Land east and west of the shopping centre has been developed for residential purposes.
There is a car park immediately east of the subject land and further east is a purpose built dental clinic with a car park at the front, further to the east is a dwelling, and then there is a community facility with car parking in the front setback.
The property to the north of the subject land, 1066 Burke Road contains a single storey dwelling at the front. Two double storey attached dwellings have been developed at the rear and they have access from the car park to the east of the subject land.
John Symeopoulos, a respondent/objector, is one of the owners of the property at 1066 Burke Road, the property immediately to the north. The other respondent/objector, Giulia Dianna, is the owner of 3 Belmore Road, which is immediately to the east of the car park which abuts the subject land on its east boundary. This is the property that has been developed and is used as a dental clinic.
The dwellings immediately to the north of the subject land are behind high brick walls.
[16]
The proposal is for a four storey building containing 25 apartments and a basement. The ground floor would include a pedestrian entry from Belmore Road. The ground floor and first floor are each proposed to contain eight apartments, five having two bedrooms and three having one bedroom. The second and third floor are each proposed to have four apartments each with two bedrooms. The basement is proposed to contain 29 car spaces, 25 storage areas, a bin area and a bicycle parking area.
One of the single bedroom dwellings on each of the ground floor and first floor is proposed to contain a small study area.
A lift is proposed which would provide access from the ground floor lobby to the basement car spaces and to each of the upper floors.
The proposed vehicle entry would be from Belmore Road adjacent to the east boundary of the subject land. The proposed pedestrian access is a security entry from Belmore Road at about the mid point of the Belmore Road frontage.
The two upper levels have been recessed on each elevation from the two lower levels.
[17]
The subject land is covered by the Boroondara Planning Scheme and is in a Residential 1 Zone which is the subject of Clause 32.01. A permit is required to construct two or more dwellings on a lot pursuant to Clause 32.01-4. Clause 55, Two or more dwellings on a lot and residential buildings, does not apply to a proposal for four or more storeys excluding a basement and therefore does not apply to this proposal.
Burke Road and Belmore Road are each in a Road Zone Category 1 and a permit is required to alter an existing access or to create a new access. VicRoads is a referral authority.
The revised plans, being Revision A dated 19 February 2009, were provided to VicRoads. VicRoads advised, by letter dated 4 March 2009, that it was satisfied with the proposal, subject to further changes as set out in the TTM Consulting Pty Ltd drawing numbers 619503 and 619504, Issue A, dated 2 March 2009.
Reference was made to relevant state and local planning policy, including:
Clause 12 Metropolitan Melbourne,
Clause 19.03 Design and Built Form,
Clause 21.04 Vision for Boroondara,
Clause 21.05 Urban Character,
Clause 21.07 Residential Land Use,
Clause 22.03 Car Parking Policy,
Clause 22.07 Neighbourhood Character Policy.
The subject land is in Area 19 in the Boroondara Residential Urban Character Study, 1995-6.
[18]
The Responsible Authority advised by letter dated 4 February 2009 that if an application for review of the failure to grant a permit had not been lodged the proposal would have been refused on the following grounds:
The proposed building setbacks are inadequate at this prominent corner and there are insufficient opportunities for landscaping throughout the site due to the size of the basement car park.
The building height and scale, and vertically orientated design are inconsistent with the prevailing neighbourhood character.
The scale, bulk and height of the proposed building is excessive and it will have a dominating impact upon the streetscape and surrounding area.
The proposed north elevation setbacks are insufficient and will have a detrimental impact on the habitable room windows and secluded open space of the dwellings to the north at 1066 Burke Road.
The proposed car parking and access arrangements are unsatisfactory having regard to its location on a main road (Belmore Road).
The proposed development would create traffic hazards in Belmore Road due to the use of a single width access ramp to the basement car park and the failure to limit vehicle movements to left-in/left-out.
The proposed development will offer poor levels of internal amenity for future occupants of the dwellings given there is no daylight access to a number of bedrooms of dwellings and there is narrow and poorly lit open space for some dwellings.
Insufficient information has been provided to enable an adequate assessment of the application in relation to traffic and parking impacts in the surrounding area.
[19]
Ms Byrne, in her written submission for the Responsible Authority, said that the site is well suited to medium density housing development because of its frontage to two main roads and its proximity to public transport and open space areas. Ms Byrne said that it is a short tram or bus ride to the Camberwell Junction activity centre and is directly opposite the Stradbroke activity centre as well as a broad range of community infrastructure and recreational opportunities. Ms Byrne said that it was acknowledged that the proposal was consistent with the objectives of Clause 21.07, Residential Land Use Policy, as it would improve housing choice and provide higher density development at a location removed from the low density development to the north.
Ms Byrne submitted however, that a number of the units were not well orientated and the selection of construction materials and the low site permeability would not facilitate good onsite drainage.
Ms Byrne said:
[20]
Council's Urban Designer has made perceptive observations that whilst the development is "conservatively modest in its density, height and overall scale and mass, fails to address and respond to the particular attributes of the site and its context." In particular, she notes: "the development fails to recognise the prominent location and potential of the site, treating it as any other residential pocket..."
[21]
Ms Byrne called the Council Urban Designer, Ms S Georges as a witness. Ms Georges prepared a written statement of evidence which was filed and served prior to the hearing, gave oral evidence and was cross examined by Mr Cicero.
Ms Georges described the proposal as a two storey mass in the form of a podium deeply recessed from the Burke Road frontage in an attempt to minimise the effects of the heavy traffic on Burke Road, especially Units 1 and 9 at ground floor level which have their private open spaces fronting Burke Road. Ms Georges described the proposal as stepping back above the second floor for another two levels.
It was the evidence of Ms Georges that the proposal was "conservatively modest" in its density, height and overall scale and mass. She said however, that it failed to address and respond to the particular attributes of the site and its context.
Ms Georges criticised internal amenity of some of the units in terms of southerly orientation and access to light. I must say that only two units, on the ground floor level and first floor level, have a southern orientation and this is not an unreasonable proportion.
Ms Georges said that the latest plans were a significant improvement on the original proposal. She said however that from an urban design point of view it failed to recognise the attributes of the site and did not provide the most responsive design outcome.
Ms Georges suggested a number of changes including:
Reduction of visual bulk,
Redesign of internal layout of south facing units,
Relocation of the private open space of some units,
"Activation and animation" and "of corner mass at ground floor level" to improve the interface with the public domain, through introduction of a café, a restaurant, or semi commercial public use such as a gym or similar activity,
Increasing the number of individual entry points,
Increasing the landscaped areas,
Reduction in the mass, bulk and size especially at the upper level, and
Introduction of simple ecologically sustainable development (ESD) measures, especially water sensitive urban design measures such as rainwater tanks and urban water runoff.
Mr Cicero called Mr T Biles, a Town Planning and Urban Design Consultant, as an expert witness. Mr Biles prepared a written statement of evidence which was filed and served prior to the hearing, gave oral evidence, and was cross examined by Ms Byrne.
[22]
For the above reasons it is appropriate that a permit subject to conditions be granted. I will so order.
Parties
Applicant/Plaintiff:
Belmore Rise Pty Ltd
Respondent/Defendant:
Boroondara CC [2009] VCAT 669
Cases Cited (1)
Belmore Rise Pty Ltd v Boroondara CC [2009] VCAT 669 (17 April 2009)
AI Analysis
Outcomeappellant
Disposition:
The Tribunal set aside the Responsible Authority's decision (failure to decide) and granted a permit for a four-storey building of 25 dwellings with basement car park at 1062 & 1064 Burke Road, Balwyn North, subject to the detailed conditions recorded in the Order; directed the Responsible Authority to issue a permit pursuant to s85(1)(b) of the Planning and Environment Act 1987.
Before the development starts a fee not exceeding $500 must be paid to the Responsible Authority for the planting of a street tree or trees by the Responsible Authority.
Areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must, to the satisfaction of the Responsible Authority, 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 sealcoat;
(d) Drained;
(e) Line-marked to indicate each car space and all access lanes;
(f) Clearly marked to show the direction of traffic along the access lanes and driveways.
The vehicle crossing must be constructed to the road to suit the proposed driveway, and any existing crossing or crossing opening must be removed and replaced with footpath, naturestrip and kerb and channel, all to the satisfaction of the Responsible Authority.
A minimum of one (1) car space per dwelling and a minimum of four (4) car spaces for visitors must be set aside and clearly marked for such use, to the satisfaction of the Responsible Authority.
Before the development starts a Waste Management Plan must be submitted to and approved by the Responsible Authority. When approved the Plan will be endorsed and will then form part of the permit. Three copies of the Plan must be provided. The Plan must provide for:
(a) A regular garbage collection service,
(b) Information regarding the type of refuse bins, the type and size of trucks, means of accessing bins, and frequency of refuse collection,
(c) Waste collection not causing any disturbance to nearby residential property or the operation and function of Burke Road and Belmore Road,
(d) Waste collection being carried out only between the following hours:
(i) Monday to Saturday 7:00am to 8:00pm
(ii) Sundays and Public Holidays 9:00am to 6:00pm
(e) Collection of recyclable materials,
(f) The means for drawing attention of owners and tenants, and prospective owners and tenants, to this Waste Management Plan.
Before the development starts a Construction 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 the permit. Works must not commence until the Plan is endorsed. The Plan must provide for:
(a) Hours of work, including earthworks, demolition and construction, unless with the prior written consent of the Responsible Authority, limited to:
Mr Biles acknowledged that this would be the tallest structure in the immediate neighbourhood. It was this evidence that the structure had been designed as two principle elements and he said that the lower two floors would "anchor" the building to the intersection which on other corners is strongly addressed by abutting buildings, whilst the upper two levels are recessed and read as one module. This was similar to the description of Ms Georges.
Mr Biles said that the building was not out of scale and it would be "clear and apparent" on the intersection but in this context this is to be encouraged. He did not consider that it would have a dominating impact on the streetscape and surrounding area.
Mr Biles said that the scale, height and massing of the building presented a strong architectural form that was responsive to its context and the setbacks are "thoughtfully resolved" particularly in relation to the neighbours to the north. He said that it would provide a diversity of choice in an area that provides only a limited choice in the medium density housing market, and internal amenity was "well resolved". He said that the fact that some apartments would face south was an inevitable consequence of the shape of the allotment.
I consider that the proposed building is an appropriate response to this site. Both Ms Georges and Mr Biles said that the upper two levels were setback from the lower two levels. I consider that this treatment is appropriate for the site and that it does respond in an appropriate way to both Burke Road and Belmore Road and the dwellings to the north.
It was the evidence of Ms Georges that the site could accommodate up to four stories with minimal offsite impact provided that the building envelope and massing was designed to address issues that she had raised, including minimising impact on adjoining neighbours and contribute to the enhancement of the streetscape on both adjoining roads in the public domain. I consider that it meets these criteria.
Ms George suggested some changes at ground floor level including a café, a restaurant, or semi commercial or public use such as a gym or similar activity. These might well be improvements but they are not something that the Tribunal can direct an applicant to include. I would think that any applicant would make such decisions based on what it considers might meet market demand. The fact that there is an existing shopping centre to the immediate south might make it less attractive to include such uses in a building such as this.
Only a small number of dwellings have only a southern orientation and as Mr Biles said this is difficult to avoid. I consider that an examination of the plans indicates that innovative means have been used to ensure that habitable rooms have good access to light.
There is criticism of car parking and access arrangements from Belmore Road. I consider, having regard to the evidence of Mr Hancox, a Consultant Traffic Engineer who was called as an expert witness by Mr Cicero, that changes suggested by Mr Hancox would address the Council concerns. VicRoads has indicated that it is satisfied with the access arrangements to and front Belmore Road.
I consider that the proposal satisfies both state and local planning policy. Clause 11 of the Planning Scheme provides that it is an expectation that Responsible Authorities will endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development. Policy must also be directed towards guiding decision making and this is where the balancing aspect is important.
I consider that the proposal is an appropriate and balanced response to both state and local planning policy.
I reserved my decision at the conclusion of the hearing. The Responsible Authority provided draft conditions that might be considered if I was to direct that a Permit be granted and I took submissions on those draft conditions.
I have come to the conclusion, for reasons stated above, that the proposal is one for which a permit should be granted. The Conditions will reflect the Conditions filed and served by the Responsible Authority but modified having regard to submissions that were made.
Condition 1 (a) dealt with vehicle access. I consider that the proposals as developed by Mr Hancox, and to which VicRoads agrees, satisfactorily address this issue and I will include appropriate conditions.
Condition 1 (b) would have required deletion of bedroom 2 to Unit 16 and provision of one bedroom to enable appropriate light and ventilation into the room. Unit 16 is on the first floor and is north facing. There is a void at second and third floor level to provide a light-well to serve bedroom 1. I consider that this is satisfactory.
Condition 1 (c) would require water sensitive urban design measures such as rain water collection and reuse and recycling of grey water. I consider that it would be sufficient to require collection and storage of rainwater for garden irrigation.
Condition 18 would require that a Waste Management Plan be submitted for approval prior to endorsement of plans required by Condition 1. I consider that the Waste Management Plan could be submitted before the development starts. The Waste Management Plan Condition could also include requirements of other related draft conditions.
Condition 12 would require a fee for planting of a street tree. Mr Cicero submitted that his client would be prepared to pay a fee not exceeding $500 and I think that this is reasonable.
Condition 15 would require one car space per dwelling of one or two bedrooms or one bedroom plus a study, or a minimum of two car spaces per dwelling with three or more bedrooms, and a minimum of four visitor car spaces. It was suggested that it might be preferable to require a minimum of one car space to be set aside for each dwelling and four car spaces for visitors.
Condition 19 would require Construction Management Plan. Condition 20 would set out hours of work. I consider that this should also be part of the Construction Management Plan. The hours of work suggested included a Saturday 9:00am start. Mr Cicero suggested that 8:00am would be more appropriate and Ms Byrne agreed.
Condition 21 would require a certificate of Environmental Audit or a statement by an Environmental Auditor. Mr Cicero suggested that a better condition would be to require that before the development starts evidence be provided that the site is suitable for residential use having regard to contamination uses. I agree.
Some notes were appended to the draft conditions. I consider that there are more appropriate means of communicating these matters.