Beman Pty Ltd v Boroondara CC [2013] VCAT 1249

1. The registered restrictive covenant applying to the land will not be breached by the use of zinc or aluminium cladding, render or paint or metal screens provided the building is as proposed constructed of solid brick.[1]
2. An amended set of plans (marked VCAT Issue and dated 06/03/2013) circulated to parties by letter dated 7 March 2013 are substituted for the application plans.
3. The decision of the Responsible Authority is set aside.
4. In permit application PP11/00796 a permit is granted and directed to be issued for the land at 735 Glenferrie Road, Hawthorn in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • Use of the land for 15 dwellings.
   • Construction of a new ground floor entrance and a five (5) storey extension at the rear of the existing building.
   • A reduction of the car parking requirements associated with a food and drink premises (café) and dwellings.
   • A waiver of the loading and unloading requirements associated with a food and drink premises (café).
   • A waiver of the bicycle change room facilities requirement.

Ms Susan Brennan, Barrister by direct brief. Expert written and oral evidence provided by:

• Mr Tim Biles, Town Planner and Urban Designer of Message Consultants Australia Pty Ltd.
• Mr Tim De Young, Traffic Engineer of GTA Consultants (Vic) Pty Ltd.

Mr Ian Munt, Barrister by direct brief for Grace Park Residents Association Inc.

Construction of 5 storey building containing a ground floor café for 60 patrons, 15 dwellings and 13 car spaces.

Cl. 34.01 (construction of buildings and works in Business 1 Zone/Commercial 1 Zone).

Cl. 45.09 and 52.06 (partial reduction in on-site car parking).

Cl. 52.34 (partial reduction in bicycle facilities requirement).

I inspected the review site, No 51 Chrystobel Crescent and the locality on the afternoon of 1 May 2013.

1. At the commencement of the hearing parties raised a question of law concerning a covenant applying to the land and asked that a legal member attend the hearing to hear submissions and decide the question. It was also agreed that the merits hearing would then proceed but that a final determination would not be made until the question of law had been decided.
2. Senior Member Rickards, who is also a legal member, attended the hearing and after hearing submissions reserved her decision. What follows is her written determination of the preliminary legal issue.

[1] I have been requested to determine whether a registered restrictive covenant that burdens the subject land will be breached if a permit is issued.

[2] The relevant registered restrictive covenant was placed on the subject land as a result of a Transfer on 14 October 1909.

[3] The relevant part of the covenant to be considered provides:

... that any buildings (except out-buildings) now or hereafter to be erected on the said land transferred shall be built of brick or stone with roofs of tiles slates or iron or any other material ...

[4] The applicant submitted the building proposed to be built on the subject land is to be constructed of solid brick, but some parts of the building are to be externally clad with zinc and aluminium cladding, as well as render and metal screens are to be used on the balconies.

[5] The Responsible Authority, as do the Grace Park Residents Association, submit that what is proposed will breach the covenant as the use of a variety of external finishes will not allow the building to be read as a whole as a brick building.

[6] I have noted that there are no beneficiaries of the covenant.

[7] Having considered the submissions made and various cases referred to and relied upon by the parties I conclude that there will be no breach of the relevant covenant. My reasons follow.

[8] The words of the covenant are to be given their 'ordinary and everyday meaning'[4] The relevant words of the covenant are 'built of brick ...'. The building is to be constructed of solid brick.

[9] The construction of the building is not proposed to be 'brick veneer' which would run into the issues raised by Justice Scholl in Jacob v Greig[5]. In that decision His Honour determined that construction of a building of 'brick veneer' did not fall within the meaning of a covenant that, similar to the current covenant, provided 'any such building shall not be erected of any material other than brick or stone'. His Honour accepted the construction of the covenant placed on it by the applicants, who argued that the covenant 'must be read so far as it referred to brick or stone, as meaning that the vertical construction of any building must be substantially wholly of one or other or both of those materials'

'In my judgement, the covenant should be read according to the construction contended for by the plaintiffs. It is not satisfied, I consider, unless the vertical construction of a building - and this applies to internal as well as to external walls - is substantially wholly of brick or stone, in the sense above stated. Of course, all such covenants, including this covenant, must be read as they would be understood by an ordinary person, accustomed to the ordinary current use of the English language in the relevant locality, and acquainted with current social habits and usages. No one would read this covenant as requiring that floors, stairs, rafters, or doors should be of brick or stone, or as essaying to interdict on the estate the otherwise common practice of using glass windows, metal or porcelain plumbing materials, or concrete or terrazzo flooring, or cement or plaster rendering over brick walls.'

[10] Scholl J concluded that but for the timber parts of the outer walls and the internal walls not being of brick mere single brick construction would comply with the covenant. His Honour found, however, that the building was to be erected of material other than substantially wholly of brick.

[11] The use of zinc or aluminium cladding does not in anyway detract from the underlying compliance with the covenant that the building is constructed of solid brick. There is nothing within the covenant that indicates the building must be read as being constructed of brick. As stated in Jacobs 'decorative additions such as are frequently superimposed on the main vertical structure' can be used.

[12] Both the Responsible Authority and Mr Munt on behalf of the Grace Park Residents Association accepted that the external part of the building, provided it was brick could be painted or rendered. I see no difference to the use of zinc or aluminium cladding in this respect.

[13] Unlike the Responsible Authority, Mr Munt did not concede that the use of metal screens on the balconies would fall within the breach, he did not equate the metal screens to being an architectural feature similar to doors or window frames.

[14] I am unable to reach the same conclusion as Mr Munt and consider that the metal screens on the balconies are no different to architectural or decorative features and provided the underlying building is constructed in solid brick decorative features such as zinc or aluminium cladding, render or paint and metal screens are merely, as stated by Scholl J, 'decorative additions such as are frequently superimposed on the main vertical structure'.

[15] The registered restrictive covenant will not be breached by the use of zinc or aluminium cladding, render or paint or metal screens provided the building is as proposed constructed of solid brick.

1. Having now received the written determination from Senior Member Rickards that the proposed building will not be in breach of the registered covenant, I now deal with the planning merits of the application.

Does the Boroondara Planning Scheme provide in-principle support for the use and development of the site as depicted on the substituted plans?

1. The use of the land for café in either the Business 1 or Commercial 1 Zone does not require a permit. A permit is required to use land for a dwelling where the frontage at ground level exceeds 2 metres. I note that no submissions opposed the use of the land for dwellings.
2. Although the site is affected by two Heritage Overlays, it is also included on the Victorian Heritage Register as H2296. Clause 43.01-2 states that no permit is required under the overlay to develop a heritage place which is included on the Victorian Heritage Register. Although there was some criticism at the hearing about the process involved in including the building on the Victorian Heritage Register, that is not a matter for me to review and I have to accept that the building is now on the Victorian Heritage Register.
3. As is so often the case in these types of applications, the key point in contention is the appearance of the building - height, boundary setbacks, articulation, materials and colours. Car parking, or rather what is considered an inadequate provision of on-site parking, is also a common concern. In addition, nearby residents are often concerned about the potential for unreasonable amenity impacts to nearby properties due to overlooking and overshadowing and that is certainly a concern to the owners of the adjoining property at No 51 Chrystobel Crescent.
4. What is usually not in dispute is the strong State and local policy support that aims to focus new development in designated activity centres. Glenferrie is a Major Activity Centre and is served by both train and tram routes forming part of the Principal Public Transport Network (PPTN). The tram route is located outside the site and the train station is within easy walking distance.
5. As a Major Activity Centre, Glenferrie contains all the facilities and services expected of such a centre including a large number of convenience and higher order shopping outlets, community and education services, and entertainment and dining venues. Local policy (see for example Clause 21.08) seeks to promote activity centres as a focus of higher density residential development, and as locations for high quality residential living and a range of housing types to accommodate the changing needs of the community. Local policy also seeks to strengthen and consolidate the role of Glenferrie as a Major Activity Centre, to recognise the importance of the Glenferrie Activity Centre as the focus for private and public sector investment and to reinforce the built form character and function of the activity centre consistent with its position in the activity centre hierarchy.
6. As part of its ongoing strategic planning work, Council has prepared and adopted a structure plan for the activity centre - Glenferrie: Heart of Hawthorn Structure Plan (updated 28 December 2011). The document is already a reference document in Clause 21.08 of the Planning Scheme but Council is seeking to implement it more comprehensively through Amendment C139 which proposes to introduce a new policy at Clause 22.18, a new Design and Development Overlay 15 (DDO15) and make related changes to other existing policies. The amendment has been exhibited but has not been reviewed by an independent Panel or adopted by Council for submission and approval by the Minister for Planning. Unlike the existing policies and controls in the Boroondara Planning Scheme, it provides more prescriptive guidance about the built form outcomes sought for the centre.
7. Figure 5 - Buildings Map - in the Structure Plan includes the review site within Commercial Area B. It suggests a built form comprising a 3 storey (11 metres) street edge and a maximum building height of 5 storeys (18 metres) with the upper 2 levels setback a minimum of 5 metres.
8. In Amendment C139, the proposed policy at Clause 22.18 includes the review site within Area 1 - Glenferrie Road Retail Core. Somewhat confusingly, the proposed DDO15 includes the land in Precinct 2: Commercial Area B and replicates the height and setbacks included in the Structure Plan. Importantly it also specifies that new buildings abutting residentially zoned land should be setback in accordance with standard B17 of Clause 55 (ResCode).
9. I agree with Council's submission that although Amendment C139 has some way to go before it is incorporated into the Boroondara Planning Scheme, it nevertheless demonstrates Council's commitment to the directions of the Amendment, identifying both opportunities for and limits on change in the Glenferrie MAC.
10. Mr Munt also submitted that I ought to have regard to Amendment C139. In particular he made reference to the Structure Plan, Clause 22.18 and DDO15 as being pertinent to a consideration of the merits of the proposal.
11. Amendment C139 certainly clarifies and provides more detailed guidance as to what Council is seeking to achieve in the Glenferrie MAC, but it does not represent a seismic shift in the policy directions and themes already contained within the Boroondara Planning Scheme for this centre. I consider that a mixed use building of the general scale proposed in this application is consistent with and responds to the existing and proposed planning scheme provisions.
12. For that reason I consider that there is in-principle support for the use and development of the site for a building as depicted on the substituted plans. However, it is necessary to assess whether that in-principle support has resulted in a building that has responded acceptably to its site context.

Is the building an acceptable response to the site context?

1. The existing building on the site comprises a single storey structure occupying 100% of the site. It is a heritage structure, formerly the Hawthorn Motor Garage. It is now signed as The Garage and is included on the Victorian Heritage Register. It is no longer used as a garage but is occupied by two shops. The site is somewhat unusual because it extends to the eastern boundary of the nearest residential property to the west at No 51 Chrystobel Crescent (Ensignton) and in effect severs a north-south laneway linking Chrystobel Crescent to the south and Mary Street to the north. As a result the site has rear access along the laneway from both the north and from the south. The Glenferrie Road façade of the building is quite ornate and at its highest point the curved parapet has a height of approximately 6.2 metres.
2. The adjoining site to the south at 733 Glenferrie Road contains a substantial two storey Queen Anne revival dwelling known as Toolangi and now used as a medical practice. It is within a Heritage Overlay and is a contributory building. At-grade parking is provided behind the building with access from Chrystobel Crescent. The site has been subject to a now rejected proposal to demolish the existing dwelling and replace it with a 5 storey mixed use building. In affirming Council's decision to refuse the application, the Tribunal[6] was primarily opposed to demolition of Toolangi. Although the Tribunal also expressed some reservations about the new building's northern interface to the review site (poorly resolved) it concluded that the proposed building is a generally well designed contemporary solution to a mixed use development on this site. The Tribunal also commented that it had no reservations about the west (rear) interface and considered that this is a well resolved and appropriate and respectful response to Ensignton and Chrystobel Crescent generally where the change in character from commercial to residential is already clearly defined by traffic calming street works and planting to the west of the laneway. Although the proposed building was separated from No 51 Chrystobel Crescent by the laneway and achieved the B17 setback envelope referred to in DDO15, it had slightly smaller setbacks between the side boundary fence and the different levels of the building compared to the setbacks for the same levels of the building on the review site.
3. Ensignton is the substantial period dwelling at No 51 Chrystobel Crescent. No 51, along with three other properties to the west extend the whole distance between Chrystobel Crescent and Mary Street and therefore have two street frontages. A 10.85 metre long section of the side boundary of No 51 Chrystobel Crescent abuts the review site and comprises the rear brick wall of the existing building on the review site. Ensignton is conventionally orientated facing Chrystobel Crescent and the rear outbuildings extend across the whole of the Mary Street frontage. The more exposed front garden is to Chrystobel Crescent and the secluded private rear yard, including a swimming pool, is positioned between the dwelling and the rear outbuildings. Although there are windows along the eastern side of the dwelling, it is my assessment that the primary focus of the indoor living areas is to the north rather than to the east.
4. Redevelopment of the site involves retaining the existing historic façade and constructing a new 5 storey building behind. At ground floor the existing shops, storage area and two space car parking area are to be replaced by a café catering for 60 patrons, parking for 13 vehicles accessed from the north and south off the rear laneway, storage and other services. 15 dwellings are constructed in the levels above. The front of the existing historic building is to be retained for a depth of 13.8 metres to the south and 4.6 metres to the north. The rear boundary wall and the side walls for a depth of approximately 3.8 metres from the rear boundary are also being retained. The new parts of the building have varied setbacks to side boundaries but at all levels at least some sections of wall abut the southern boundary. The same applies for the northern boundary except that the top floor (Level 4) is setback 1.5 metres from the northern boundary. Setbacks from the front and rear boundaries are far more substantial. To Glenferrie Road, Level 1 is setback 5.03 metres, Level 2 is setback 5.93 metres, Level 3 is setback 9.55 metres and Level 4 is setback 12 metres. At the rear Levels 1 and 2 are setback 7.635 metres, Level 3 is setback 9.535 metres and Level 4 is setback 11.7 metres. As a generalisation, the building has a more articulated appearance to the north than to the south.
5. The building shown on the substituted plans quite easily meets the height and setbacks included in the proposed DDO15, with a minor exception along part of the western rear boundary where a taller boundary wall is being retained adjacent to No 51 Chrystobel Crescent. I discuss this wall later in my reasons but note that compliance could be achieved with the B17 envelope referred to in DDO15, although there may be undesirable amenity impacts on the neighbouring property to the west if the wall was lowered in height to accord with B17.
6. DDO15 also makes reference in the design objectives and general requirements that new development respects, conserves and enhances heritage buildings and precincts and the significance of identified heritage places. The specific design objectives and requirements for Precinct 2 - Commercial Area B do not assist in understanding how this will be achieved unlike, for example, the reference to amenity tests included in Clauses 54 and 55 such as overlooking and overshadowing. The Structure Plan is somewhat more helpful and includes recommended strategies around the themes of 'Age and Character of the Centre', 'Heritage' and 'The Scale, Setback and Grain of Commercial Buildings'. However these do not provide tools or criteria by which to assess impacts on heritage places. This is in contrast to the approach taken to heights and setbacks which are clearly specified for each of the areas depicted on the Buildings Map.
7. I note that Council officer's recommended conditional approval of the original proposal. Given the ease with which the building meets the street wall, overall height and B17 rear setback standard contained in the DDO15 document Council exhibited I am somewhat perplexed as to why Council is still opposing the application. What does an applicant have to do to obtain Council support when a building which so clearly meets the built form outcomes sought by Council is refused? I do not agree with Council that the proposal does not comply with the requirements of draft Clause 22.18 or that it does not provide an appropriate transition to the adjacent properties.
8. Nor do I agree with Council and residents that the proposal will have unreasonable amenity impacts on the residents of No 51 Chrystobel Crescent because of visual bulk, overlooking and overshadowing. I have already noted that except for the existing boundary wall, all setbacks between the two properties comply with the B17 setback envelope. I agree with the overlooking and overshadowing analysis undertaken by Mr Biles, and consider that overlooking and overshadowing are acceptable having regard to the criteria included in the Planning Scheme for assessing such impacts. In the case of overlooking, any potential for viewing within 9 metres has been managed by appropriate screening or windows. Changes required to the balconies of Dwellings 12 and 15 are designed to prevent views into the secluded private rear yard (and swimming pool) at No 51 Chrystobel Crescent. I note that the terrace of Dwelling 11 is screened but I am not so clear about the balconies for Dwellings 6 and 7 or the northern side of the terrace to Dwelling 3. I have reworded condition 1(h) to ensure that all western orientated balconies and terraces are screened to prevent views into the secluded rear yard of No 51 Chrystobel Crescent.
9. I now discuss the existing boundary wall between the review site and No 51 Chrystobel Crescent. The existing brick wall has a height at its north and south ends of approximately 4.1 metres and rises to a pitch of approximately 5.1 metres. As such it exceeds the 3 metres wall height adopted as the starting point for assessing the B17 setback envelope referred to in the previous paragraph. Whilst the existing wall could be replaced by a new 3 metre high wall on the boundary, I consider that the level of privacy and sense of enclosure currently enjoyed could not be replicated with a 3 metre high wall. The dwelling at No 51 Chrystobel Street has been occupied on the basis of the existing tall boundary wall and to remove it may provide some benefits in terms of additional daylight and sunlight but would have the dis-benefit in terms of loss of privacy and sense of enclosure, and changes to sunlight, daylight and micro climates. Retention of the existing wall and setting back the 1.7 metre high screen to the terraces of apartments 2 and 3 will overcome any potential for overlooking and minimise noise transmission from the terraces. Retention of the existing wall will also largely screen views from the east facing windows at No 51 Chrystobel Crescent to the upper levels of the proposed building. On balance I consider that rigid application of the B17 setback envelope by replacing the existing boundary wall by one of just 3 metres in height would result in greater amenity impacts to the neighbours. I acknowledge Mr Cookesley's submission that the wall appears to have structural problems but that is a matter to be dealt with at the building stage. The planning permit requires the wall to be retained. If for some reason it needs to be rebuilt then it will need to be undertaken in a manner that reflects both the planning approval and the covenant affecting the land.
10. Mr Cookesley also raised concerns about increased noise from vehicles and the opening and closing of the roller doors. I acknowledge that there will be some additional noise and activity along the laneway, and from the dwellings above, but I consider that provided the noise is within acceptable limits then the additional noise and activity is not unreasonable. Acceptable in this context means compliance with relevant noise standards in the case of the roller doors. While I accept that noise from any neighbours can be intrusive, it is self evident that noise caused by speech, laughter, music and entertainment equipment will be generated from any form of residential development and this is part and parcel of living in an urban area. Potential noise from future residents is not a reason to refuse a medium density development. I also repeat the comment made in Global Meridian Pty Ltd[7] that:

Over many years and in many cases, various divisions of the Tribunal have commented that residents living close to or abutting commercial, industrial or mixed use zones cannot expect the same level of amenity as residents living in the middle of pristine residential areas. That does not mean that issues of amenity such as noise should be ignored, but rather that lower standards are both acceptable and realistic in such interface locations.

1. The appropriateness of the interface to Toolangi to the south is more difficult to assess given that the setbacks referenced in DDO15 do not relate to adjoining sites in the Business 1/Commercial 1 Zone. While I agree with Council's submission that any redevelopment of Toolangi is unlikely to be approved, at least in the short term, I consider that comment applies more relevantly to the main section of the historic Queen Anne revival dwelling rather than to the more recent rear additions and rear yard. Although I do not recite them here, the Tribunal's comments in Virgon cannot be construed as ruling out some form of higher and more intensive development at the western end of the Toolangi site.
2. Although submissions were critical of the lack of setbacks and articulation along the southern boundary, I take a different view. Towards Glenferrie Road, where the proposed building will be most visible beside and above Toolangi, setbacks, articulation and the varied materials do provide a visual transition. That does not mean that the new building will appear smaller or fade into the background of Toolangi. It is clearly a new and much taller building but that does not mean that it should be reduced in height or provided with much greater setbacks in order to be more visually recessive when viewed from Glenferrie Road.
3. Towards the middle of the site the building has less articulation and more boundary wall construction. This primarily occurs proximate to that part of the Toolangi site which could be redeveloped without impacting on the historic fabric at the front of the site. While it is speculative as to whether a new building could be constructed on the western section of the Toolangi site, and what form any such building may take, the building on the review site is designed in such a way that it does not unreasonably constrain a future building by, for example, locating balconies or windows along this section of the common boundary.[8] I also note that in Virgon the Tribunal commented that:

[57] ...However, this is not to say that a redevelopment of the site which included the existing building, comprising retail premises, offices and housing could not be successfully accomplished. We note that the area available for this option, suggested by Council and other parties, could involve around half the site.

1. But even if a taller building is not constructed at the western end of the Toolangi site, I am not persuaded that the articulation is so inadequate that the building should be refused or redesigned along this interface. However I agree with Mr Biles and the Council's urban designer that the southern wall and light court needs finessing by the use of red brick in the light court and that additional colour/materials/texture needs to be added to the now blank wall on the southern boundary. I therefore support the changes required by conditions 1(c) and 1(f). I also observe that from within Chrystobel Crescent, the building will be viewed above and behind intervening vegetation which will further ameliorate the sense of scale when viewed from this direction.
2. In making these comments I do not want to downplay or hide the fact that a building of the height and size proposed in this application will represent a significant departure from the built form in this section of Glenferrie Road. The taller buildings that already exist on the east side of the laneway north of Mary Street give some sense of the change that will occur, although I consider that the proposed building offers a far superior built form transition to the adjoining residential area than do those buildings. But the fact remains that the review site forms part of the Glenferrie MAC, is on the PPTN and that Council, through its strategic planning work and Amendment C139, is establishing a framework which permits buildings of approximately the scale proposed in this application.
3. There is undeniably a tension between the present and the future. A tension between what exists and what is to come. A tension between respecting, enhancing and conserving heritage fabric and allowing new development of a quite different scale and character. A tension between the intensity of activities and development within the commercial strip and the adjoining homogenous residential area. Ultimately it is a question of considering these tensions and, as required by Clause 10.4 of the Planning Scheme for me to:

endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.

1. It is on that basis that I have come to the conclusion that the proposal does provide a net community benefit and that it is worthy of support.

Is it reasonable to reduce on-site carparking and waive loading bay requirements?

1. Whilst I accept that on-site car parking falls short of the statutory requirement by 10 (13 spaces provided as against a requirement of 23), the desire to provide parking in accordance with Clause 52.06 and the Car Parking Overlay needs to be balanced against contrary policy in both the existing planning scheme and proposed Clause 22.18 which seeks to reduce private vehicle travel to and around the centre and encourage walking, cycling and public transport use. One way to do that is to provide dwellings and other facilities without the full measure of on-site parking set out in the Car Parking Overlay and Clause 52.06. The site is very well served by public transport and Government policies aim to reduce dependence on motor vehicles by, amongst other things, encouraging new development into areas already well served by public transport and by trying to better match housing and work places. Part of the underlying philosophy for urban consolidation and activity centre planning is to reduce dependence on the use of motor vehicles for private travel. A site such as this within a Major Activity Centre, on the PPTN, close to a train station and where not owning or using a car is a practical alternative lifestyle choice for residents creates an opportunity to provide a different form of residential accommodation less reliant on the private motor vehicle. It won't suit everyone, but decisions about whether to live in this building will include consideration of parking availability. If we as a community are serious about reducing our dependence on motor vehicles and limiting the growth in traffic (and congestion) then a site such as this is one where a reduction in on-site car parking can be supported.
2. Nevertheless, I accept that on-street parking within Glenferrie Road and nearby streets is heavily utilised and my inspection confirmed that few spaces remain unoccupied. I understand that on-street parking is partly regulated by a permit scheme and that unless it is policed effectively then vehicles will park for longer than allowed. I recognise that the proposed café does have the potential to increase pressure on the finite on-street parking in the immediate vicinity of the site in the order of 5 spaces, although I also understand that the two existing shops have the potential to generate a demand for up to 12 spaces, although only two are currently provided on site. Theoretically, replacing two shops with one café has the potential to free up 5 on-street spaces. It is also correct that customers will be encouraged to walk to the site because of the relative shortage of parking and because it is likely that customers will be visiting the centre for multiple reasons. As part of a Major Activity Centre I would expect that a larger than usual proportion of customers to the café will be pedestrians and will not arrive by car.
3. Historically, laneways at the rear of properties fronting main roads were designed to provide rear access to those properties. Although the laneway on the western side of Glenferrie Road between Chrystobel Crescent and Mary Street is not continuous, it nevertheless provides vehicle access to the rear of all the properties fronting Glenferrie Road. As previously noted, the review site severs the laneway and existing roller doors allow access to the review site from both the northern and southern sections of the laneway. The proposal retains that arrangement and provides two means of access to the 13 spaces to be provided on-site. Allowing continued use of the laneway to access the property is reasonable, and I accept Mr De Young's evidence that the two sections of laneway can satisfactorily accommodate the post development traffic volumes. I recognise that there will be additional noise and activity along the two sections of laneway, but given its purpose to provide access to properties fronting Glenferrie Road, I consider that additional activity is acceptable. I also observe that the discontinuous nature of the laneway means that traffic will be dispersed in two directions and that there is no opportunity for 'through' traffic along the laneway
4. Although 11 bicycle parks are being provided on site against a statutory requirement of 7 (2 for the café and 5 for the dwellings), I note that change room facilities are not being provided as required by Clause 52.34-3. This is not unreasonable given the relatively small number of bicycle spaces being provided. Loading/unloading will occur from the street and is consistent with the practice adopted for other commercial sites along Glenferrie Road. I note that Council did not raise any objection to this aspect of the proposal.

1. In assessing Council's draft permit conditions I have made a number of changes to reflect submissions and discussion about them at the hearing. I agree with Mr Cookesley's suggestion that the vehicle roller doors are included in the condition requiring maintenance of the cars stackers.
2. I do not accept the suggestion that the café hours be limited to 9pm given the Commercial 1 Zone, the orientation of the café to Glenferrie Road and the separation distance and lack of a direct interface with residential properties to the west. Although not directly relevant because the site is not in the Residential 1 Zone, I also note that the 11pm closing time is consistent with the 11pm referred to for Corporate and Function Centre Uses in Council's local policy at Clause 22.04 for Discretionary Uses in Residential Areas. It is reasonable to expect that closing times in a MAC should not be more constrained than for discretionary uses in residential areas.

1. Having regard to the above I will direct that a permit issue subject to the conditions set out in the Appendix.

Use of the land for 15 dwellings, construction of a new ground floor entrance and a five (5) storey extension at the rear of the existing building, a reduction of the car parking requirements associated with a food and drink premises (café) and dwellings, a waiver of the loading and unloading requirements associated with a food and drink premises (café), a waiver of the bicycle change room facilities requirement in accordance with the endorsed plans.

1. Before the development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and three (3) copies provided, substantially in accordance with the substituted plans considered by VCAT on 29 April 2013 (Job No.: 1386, Drawing Nos. TP-11, TP-12, TP-13, TP-14, TP-15, TP-16, TP-17, TP-18, TP-19, TP-20 and TP-21, all Revision E, dated 6 March 2013, prepared by Ascui Edwards Architects Pty. Ltd.) but modified to show:

(a) A maximum of 60 seats (including outdoor seats) available for patrons of the cafe;

(b) An increase in the width of the corridor that connects the pedestrian entry lobby with the lift area to a minimum of 1.5m;

(c) The use of exposed red-coloured face brick on the light court on the southern elevation, to the satisfaction of the Responsible Authority;

(d) Further details (including a fully dimensioned section diagram at a scale of 1:20 or 1:50) of the metal slat privacy screen to ensure its design will maintain the privacy of the adjacent dwelling to the satisfaction of the Responsible Authority;

(e) Lighting details for the building entry via Glenferrie Road, to the satisfaction of the Responsible Authority;

(f) An increase in the visual interest of the 5-storey wall located on the southern boundary, through colour, materials and/or texture, to the satisfaction of the Responsible Authority;

(g) The use of double-glazing and commercial-grade seals for all dwelling windows and glazed doors on the eastern and western elevations;

(h) Modifications to the western and northern sides of west facing balcony and terrace balustrades and screens to prevent views into the rear secluded private open space of No. 51 Chrystobel Crescent, to the satisfaction of the Responsible Authority;

(i) Any modifications to the building design recommended in the ESD report required by Condition 19;

(j) A notation that all two (2) bedroom dwellings will be allocated a car space;

(k) A notation that the cafe will be allocated one (1) car space.

1. The layout of the site and the size, levels, design and location of buildings and works and the description of the uses on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

1. All buildings and works must be maintained in good order and appearance to the satisfaction of the Responsible Authority.

1. Prior to the commencement of the development, a fee of $330 (including GST) must be paid to the Responsible Authority for the supply and installation of one (1) bicycle rail, to be installed by the Responsible Authority within the public realm in the vicinity of the site.

1. Before the use of the land commences, a Green Travel Plan must be prepared to the satisfaction of the Responsible Authority. 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 the following:
   • (a) A description of the location in the context of alternate modes of transport and objectives for the Green Travel Plan;
   • (b) Outline Green Travel Plan measures for the development.
   • (c) A plan showing the bicycle parking areas to be provided for use by residents.

The Green Travel Plan must not be amended without written consent of the Responsible Authority.

1. 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.

1. Prior to the commencement of the development, a Waste Management Plan must be prepared to the satisfaction of the Responsible Authority. Once satisfactory, such plan will be endorsed and must be implemented to the satisfaction of the Responsible Authority. The plan must provide the following details of a regular private waste (including recyclables) collection service for the subject land including:
   • (a) the type/s and number of waste bins;
   • (b) screening of bins;
   • (c) type/size of trucks;
   • (d) frequency of waste collection;
   • (e) delivery of bins to waste collection points and retrieval of bins once collected or location of collection points within basement

1. Collection of waste must be conducted so as not to cause any disturbance to nearby residential properties and may only occur between the hours of 7:00am to 7:00pm Monday to Friday to the satisfaction of the Responsible Authority.

1. Before the use starts the areas set aside for car parking, access lanes and driveways shown on the endorsed plans must be:
   • (a) Constructed;
   • (b) Formed to such levels and properly drained so that they can be used in accordance with the endorsed plans;
   • (c) Surfaced with an all weather seal coat;
   • (d) Line-marked to show the direction of traffic along the access lanes and driveways; and
   • (e) Drained;

1. Car spaces, access lanes and driveways shown on the endorsed plan must not be used for any other purpose and may be used by occupants of or visitors to the site and the general public to the satisfaction of the Responsible Authority.
2. All vehicles entering and exiting the car park must do so in a forwards direction.

1. Before the use starts or any building is occupied, car stackers must be installed in accordance with the endorsed plans.

1. The car stackers and roller doors must be routinely serviced and maintained to the satisfaction of the Responsible Authority to ensure satisfactory access to all car spaces and to prevent any adverse effect on adjoining land by the emission of noise.

1. Noise levels emanating from the approved food and drink premises (cafe) must not exceed the relevant levels prescribed by the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1, to the satisfaction of the Responsible Authority.

1. Noise levels emanating from the approved food and drink premises (cafe) must not exceed the relevant levels prescribed under State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2, to the satisfaction of the Responsible Authority.

1. All outdoor lighting of publicly accessible areas must be designed, baffled and located to prevent light from the site causing any detriment to the locality, to the satisfaction of the Responsible Authority.

1. All pipes (except down-pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the Responsible Authority.

1. The external faces of walls on or facing boundaries are to be cleaned and finished to the same standard as such walls within the development site to the satisfaction of the Responsible Authority.

1. Concurrent with the endorsement of any plans pursuant to Condition 1, an Environmentally Sustainable Design (ESD) Report which is to the satisfaction of the Responsible Authority must be prepared by a suitably qualified expert and submitted to the Responsible Authority for approval. The report must address ESD principles proposed for the site including, but not limited to, energy efficiency, stormwater collection and re-use on the site and waste and building materials. Any recommended changes to the building must be incorporated into the plans required by Condition 1. Once approved, such a plan must be implemented prior to the occupation of the dwellings to the satisfaction of the Responsible Authority.

1. Prior to the commencement of buildings and works, a Construction Management Plan must be submitted to the Responsible Authority for approval. No works are permitted to occur until the Plan has been approved in writing by the Responsible Authority. Once approved, the Construction Management Plan must be implemented to the satisfaction of the Responsible Authority. The Plan must provide details of the following:
   • (a) hours for construction activity in accordance with the requirements of any other condition of this permit;
   • (b) measures to control noise, dust, water and sediment laden runoff;
   • (c) the location and design of a vehicle wash-down bay for construction vehicles on the site;
   • (d) the location of parking areas for construction and sub-contractors' vehicles on the site, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises and traffic flows with any basement car park on the land being made available without delay for use by sub-contractors/tradespersons upon completion of such basement car park areas;
   • (e) measures to ensure that employees and sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan;
   • (f) contact details of key construction site staff;
   • (g) a Traffic Management Plan;
   • (h) the location of any site sheds, hoarding and the like; and
   • (i) any other relevant matters, including VicRoads and Yarra Trams requirements.

1. All works including earthworks, demolition and construction activity associated with the approved development is to be limited to the following hours, unless with the prior written consent of the Responsible Authority:

1. The food and drink premises (cafe) use allowed under this permit may operate only during the following hours, except with the prior written consent of the Responsible Authority:

Food and drink premises (cafe) patron numbers restricted

1. No more than 60 patrons are permitted on the premises, including outdoor areas, at any time without the prior written consent of the Responsible Authority.

Hours for deliveries food and drink premises (cafe)

1. Deliveries to the food and drink premises (cafe) must be conducted so as to not cause any unreasonable disturbance to nearby residential properties and may only take place between the hours of: 7:00am to 7:00pm Monday to Friday; and 9:00am to 5:00pm Saturday, Sunday and Public Holidays, to the satisfaction of the Responsible Authority. Newspaper deliveries may take place outside these hours.

1. The land must be drained to the satisfaction of the Responsible Authority.

1. The amenity of the area must not be adversely affected by the use or development as a result of the:
   • (a) transport of materials, goods or commodities to or from the land;
   • (b) appearance of any building, works, stored goods or materials;
   • (c) emission of noise, artificial light, vibration, smell, fumes, smoke, steam, soot, ash, dust, waste water, waste products or oil; or
   • (d) the presence of vermin;

or in any other way, to the satisfaction of the Responsible Authority.

1. This Permit will expire if:
   • (a) The development does not start within two (2) years of the issue date of this Permit; or
   • (b) The development is not completed within four (4) years of the issue date of this Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.

[1] As determined as a Preliminary Question of Law by Senior Member Jeanette Rickards sitting as a legal member of the Tribunal. See paragraph 2 for her reasons for this determination.