BG Serrell St Developer Pty Ltd v Stonnington CC [2015] VCAT 883

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998:
   1. the Notice of Refusal issued by the Responsible Authority is amended to delete grounds 2 and 3; and
   2. the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

TP02, TP05, TP09, TP10, TP11, TP12, TP13, TP15, TP20, TP21 and TP22 (Rev. D)

and Landscape Plan prepared by Jack Merlo dated 16 March 2015.

1. The decision of the Responsible Authority is set aside.
2. In permit application 0151/14 a permit is granted and directed to be issued for the land at 72-76 Serrell Street, Malvern East in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • Development of two or more dwellings on a lot in the General Residential Zone;
   • Buildings and works under the Special Building Overlay (part of land); and
   • Removal and variation of easements under Clause 52.02.

Ms Susan Brennan SC with Mr Barnaby Chessell of Counsel by direct brief. They called the following witnesses:

• Mr Kel Twite, Town Planner, SJB Planning
• Mr Jason Sellars, Traffic Engineer, GTA Consultants
• Mr Jack Merlo, Landscape Designer
• Mr Tim Biles, Town Planner, Message Consulting
• Mr Sam Ravida, Engineer, Reeds Consulting[1]

Mr Graham Lockwood on behalf of Ms N. Entink (day 1) and Mr Stuart McKenzie on her behalf for the remainder of the hearing

Ms Alice Moloney, Town Planner, for Mr Robert Zendarski (start day 1)

Mr John Atchison in person and on behalf of Ms Jane Atchison

Dr Joanne McCutcheon in person and on behalf of Mr Jason McCutcheon

Mr John Lord was given the opportunity to make a submission but was not joined as a party to the proceeding

Development of 61 dwellings within a single apartment building and five townhouse buildings.

113 car parking spaces would be provided on site for residents and visitors, split between basement parking and at grade parking in front of each townhouse.

The apartment building would consist of three storeys while the townhouses would vary between 2 and 3 storeys.

Each dwelling would be provided with secluded private open space in the form of a courtyard and/or balcony. This would be supplemented by communal open space mostly in the form of a linear "South Park".

Application under Section 77 of the Planning and Environment Act 1987 - to review the refusal to grant a permit.

General Residential Zone (Schedule 10) - noting that transitional provisions apply to this application.

Clause 32.08-4 - development of two or more dwellings on a lot

Clause 44.05-1 - buildings and works on land within the Special Building Overlay

Clauses 9, 10, 11.04, 15.01, 15.02, 16.01, 18.02, 21, 22.03 and 22.18 in addition to the matters in clause 65 of the Stonnington Planning Scheme.

The subject land is irregular in dimension, approximating an "L" shape. It has a total area of 9,920 square metres. The land was formerly used as an aged care facility but the land is now vacant[3]. Contextually, it adjoins a nursing home under construction to the north fronting Waverley Road. It also has numerous conventional residential abuttals to the south and east with the rear of properties that front Nirvana Avenue.

Land opposite the subject land in Serrell Street comprises traditional low rise detached dwellings in landscaped garden settings. Some of these dwellings have heritage significance. Further south along Serrell Street (on the eastern side) is a church, kindergarten and community centre[4] as well as a well presented small park with play equipment[5]. There are also a number of villa units scattered within the street.

We carried out an accompanied site inspection of the subject land and many objectors' properties on 6 May 2015. We also undertook an inspection of the broader surrounds.

1. The subject land provides an opportunity for the redevelopment of a substantial site in a well located part of Malvern East. All parties accepted that the site would be suitable for residential use, but the difference in position centred around what form and intensity of development would be acceptable.
2. This case highlights the need to balance planning imperatives for urban consolidation and improved housing diversity with neighbourhood character and preserving residential amenity. The question is where this balance should be struck in the case of the subject land.

1. The starting point is the relevant, layered policy context. The controls under the former Residential 1 Zone apply to this proposal by way of transitional provisions[7], although the purposes of the General Residential Zone are influential.[8]
2. Equally important is the setting of the subject land within an established residential neighbourhood which exhibits a relatively high consistency of character. The crux of our assessment is whether the proposal represents a suitably respectful response to this character whilst adopting a contemporary built form and uncharacteristic layout and styling.
3. The responsible authority opposed the grant of a permit for the proposal on the basis that the built form did not adequately respond to neighbourhood character influences. In its submission, it focused on perceived deficiencies with the front townhouse building in particular.
4. Beyond this, it was concerned about the inadequate provision of secluded private open space for certain dwellings. The responsible authority did not support the proposed siting of the communal open space and submitted that the proposal should be redesigned to provide a central area of open space.
5. Many neighbours participated in the proceeding as objectors. They emphasised their view of the proposal as a significant overdevelopment of the site and a poor response to neighbourhood character. Fundamental concerns were expressed about the proposed density of the development. Many objectors were also concerned about the prospect of excessive visual bulk when viewed from Serrell Street and properties backing onto the site.
6. A common concern for objectors was the parking and traffic impacts of the re-development, especially those affecting Serrell Street and its intersection with Waverley Road. A number also took issue with the provision of East Road (within the site) close to residential properties to the east, as well as on-site manoeuvrability. Waste collection arrangements were also questioned.
7. Another key issue for our determination is whether overland flows and capacity for flooding have been addressed suitably in the proposal, relative to the inclusion of part of the land within the Special Building Overlay[9]. Whist many objectors sought to express concerns about the treatment of flooding and drainage and potential impacts to their properties, there are no third party rights afforded by the planning scheme in respect of this part of the permission sought.
8. Suffice to say (for the purpose of this introduction) that there has been substantial drainage modelling in connection with the subject land and the broader catchment. This has involved various drainage options being considered by the permit applicant and the council, including comprehensive peer review. This has resulted in the responsible authority being satisfied about the workability of the option to be adopted.
9. It has therefore withdrawn its grounds of refusal in this regard and relevant permit conditions have been agreed in principle with the permit applicant. Nonetheless, we take our role as an independent expert Tribunal seriously to ensure that these matters are addressed suitably.

1. We are conscious that there are myriad ways of approaching the redevelopment of a site such as this in terms of layout, design philosophy and architectural styling. Our role is to consider the proposal before us and to determine whether it is acceptable having regard to net community benefit.[10]
2. We have considered all of these issues in a comprehensive way in assessing the acceptability of the proposal before us. We were assisted by the submissions and evidence on behalf of the parties, together with the accompanied site inspection.
3. In general, we support the responsible authority's officer's assessment of the proposal and the position of the permit applicant and its experts. Our reasons follow.

What are the key planning policy directions for the redevelopment of this site?

1. The subject land is included in an area of Incremental Change on the Framework Plan in clause 21.05 of the Scheme.[11] It is a consolidated site that also exhibits the characteristics of a Strategic Redevelopment Site in clause 16.01-3 of the Scheme.
2. The subject land is well located close to services and facilities, including two activity centres[12] and is suitably serviced by public transport. The site clearly has potential for residential redevelopment in light of its zoning.
3. Having regard to its relative lack of site constraints, we regard the site as a lot that is capable of accommodating increased density as referred to in clause 21.05-2 subject to responding appropriately to neighbourhood character and site interfaces. Clauses 21.05-4 and 21.06-5 makes express reference to directing medium density development of 2-3 storeys to sites such as this one.
4. The recent rezoning of the land has placed it in the General Residential Zone (Schedule 10, Garden River and Garden Suburban Precincts). The objectives of the zone include:

To encourage development that respects the neighbourhood character of an area.

To implement neighbourhood character policy and adopted neighbourhood character guidelines.

To provide a diversity of housing types and moderate housing growth in locations offering good access to services and transport.

1. The General Residential Zone contemplates "moderate" housing growth. This is to be understood in combination with state and local planning policies that encourage urban consolidation with increased housing density and diversity, to cater for future housing needs. In terms of whether the proposal itself constitutes 'moderate' change, this turns on context[13].
2. We accept earlier decisions of the Tribunal that the term 'moderate' does not equate to a prescription or limitation on built form or dwelling types per se[14], such that the fact that 61 dwellings are now proposed is but one relevant consideration. It may well sustain a "noticeable change to built form"[15], as will occur here, depending on context.
3. In principle, we consider that the provision of housing within stand alone two to three storey townhouse buildings in an integrated arrangement is definitely contemplated within the range of moderate or incremental housing growth for this area, juxtaposed with traditional housing stock of one to two storeys.
4. Likewise, we regard the provision of a single, three storey, well articulated apartment building towards Waverley Road is equally appropriate as a built form typology. We find this degree of change consistent with the directives of planning policy and the zone controls.[16]
5. Many residents felt strongly that the site's redevelopment should take the conventional format of dwellings in Bowlers Way. That is, slightly reduced lot sizes compared with prevailing with somewhat larger double storey dwellings that are well articulated and incorporate prevailing built form elements of character. They considered that this would lead to an appropriate density of development on the subject land.
6. From the outset, with respect, while there is a place for development such as that in Bowlers Way in this residential context, we would not regard this as a sufficient response to planning policy for a substantial site like this.
7. It is clear to us from the application of the General Residential Zone to this large site in the absence of overlays pertaining to heritage, design or character, as well as the Incremental Change designation, that the controls on this site do not seek to perpetuate the status quo in terms of existing housing in the area. This is also affirmed by the contrast in zoning of residential land opposite in Serrell Street and Nirvana Avenue behind the site which are included in the Neighbourhood Residential Zone and Heritage Overlay. We consider that it is not realistic for development expectations for the subject land to be confined to this existing physical context.
8. To this extent, we reject the responsible authority's submission that the community is entitled to 'expect growth or change on this site that is consistent or on average with that which has been occurring in the immediate area'. Likewise, we do not accept the objectors' suggestion that a similar density, scale and style of development to existing is called for.
9. At the same time, we have carefully considered submissions that the number of dwellings and extent of built form is excessive. We address this further below.
10. With respect, we are not persuaded by objectors that Serrell Street doesn't 'need' any more medium density housing because it already incorporates villa units. This is the view of a number of existing residents, but cannot be said to reflect the aspirations of the planning scheme or future residents. There are imperatives to make efficient use of all urban land in a location such as this which are reflected in state and local planning policies.
11. Likewise, it is not to the point that substantial medium density development is occurring in areas such as Chadstone and around Monash University Caulfield. Such development is of a radically different scale and density to that proposed for the subject land. Clearly, it cannot meet all future housing needs for smaller dwellings within the municipality and each site/area has a role to play. There are also numerous benefits of this particular location in question that should be shared with future residents of medium density housing.
12. We have already expressed the view that medium density development on this site need not be constrained to single dwellings on larger lots. In fact, development of 'more of the same' would in our minds constitute something of a lost opportunity having regard to achieving the objectives of planning policy. The proposal as formulated would make a far more meaningful contribution to the urban consolidation policies expressed above.
13. A key benefit of the proposal is that it genuinely provides a mix of dwelling types within the housing offer. For example, there is a choice between a townhouse or apartment, floorplates vary substantially in terms of layout and position of living areas versus bedrooms, parking is provided in various ways and at differing rates and open space is provided in various sizes, forms and locations. The dwellings will also offer a good to high level of internal amenity.[17]
14. Consequently, our attention turns to whether the built form would represent a suitable addition to the area in neighbourhood character terms, which is another equally important tenet of planning policy.

Assessing the design response by reference to neighbourhood character considerations

1. The subject land is included in Garden Suburban Area 4 of the Planning Scheme.[18] The relevant preferred future character for this area[19] is:

The Garden Suburban 4 (GS4) precinct comprises spacious and leafy streetscapes with Edwardian, Interwar or Post-war era and new buildings set in established garden surrounds. Regular front and side setbacks provide space around buildings and allow for canopy trees. New buildings or additions offer innovative and contemporary design responses while complementing the key aspects of built form, scale and design detail of the older dwellings in the precinct. Low or permeable front fences retain views to gardens and buildings from the street. . .

1. Objectives in neighbourhood character policies often refer to a need to "respect" and respond to neighbourhood character. Numerous decisions of the Tribunal have considered this term, and have distinguished it from a need to conform to or mirror such character. Ms Brennan submitted that we should consider whether the proposal can 'fit into the street without disturbing one's appreciation of the balance of the street'.
2. It is relevant that this forms part of a policy to be applied with discretion, rather than as a prescriptive control. We accept submissions on behalf of the permit applicant that the site is relatively unique in the GS4 area in terms of its size[20], location and strategic significance.
3. All parties and experts accepted that the physical setting of the subject land is relatively homogenous. It includes traditional housing stock which is predominantly detached and single storey[21], with the inclusion of some double storey additions. These dwellings generally sit within well landscaped gardens, with a variety of streetscape presentations. In addition, the broader area including Serrell Street further south accommodates some medium density development in the form of single storey villa units (generally in a one-behind-the-other format).
4. There is no doubt that the proposal represents a different form, style and intensity of housing compared with that in the immediate (and wider) neighbourhood.
5. To some extent, this has always been an existing condition since the site was used for an institutional purpose, albeit with a single storey built form. It is also a product of the size of the site, which is of an entirely different scale to surrounding residential properties on conventional urban lots.
6. We are aware of the sensitivities of the historic situation concerning the subject land. We were presented with submissions and plans to the effect that there was formerly an integrated proposal for the redevelopment of the corner site together with the subject land, including a central area of open space. This appears to have influenced the position taken by many objectors (and potentially the responsible authority) even though there are now separate titles and the relevant permissions have been varied.
7. In built form terms, the site (as currently configured) was formerly developed for a single storey aged care facility, with a central building to the north and a series of stand alone 'chalets' central and further south (serviced by an internal roadway[22]). It was considered by many as a respectful neighbour in use and development terms.
8. In our opinion, the fact that the site will adjoin a substantial nursing home of contemporary design was unreasonably understated as a built form influence by certain parties in this proceeding. We were provided with a set of the endorsed plans for that development (currently under construction). They illustrate that the building has a wide presentation to Serrell Street as the building 'turns the corner'. We acknowledge that this corner site is located on a main road in the General Residential Zone (Schedule 7), which justifies its development at a higher intensity than the subject land.
9. We note that the responsible authority and objectors did not substantially take issue with the proposed built form, setbacks or landscaping of the apartment building.
10. In fact, the responsible authority's urban designer commented that[23]:

Subject to the matters identified below [common open space, adjusting the setback of one building at the rear and confirming traffic-related amenity], this is a high quality residential development proposal. The scale and siting of the various housing blocks, relative to neighbouring properties and to Serrell Street is also consistent with the intent of the Zone and the general character of the area. The approach to landscaping of the site is of a high quality and, in conjunction with the scale of the new buildings, complements the character of the neighbourhood.

1. We find the siting and design of the apartment building on the subject land represents a comfortable transition from this corner building in terms of scale and character when moving one substantial lot further into Serrell Street.[24]
2. Objectors were concerned about the prominence of the equipment to be mounted on the roof of the apartment building and its associated screening at a height of 2 metres. In addition, the fact that the maximum height of the habitable levels of the building exceeded 9 metres was an issue, given the current limitation to that height in the Schedule to the General Residential Zone.
3. This proposal is not confined to a height of 9 metres although future development in the zone will need to conform.[25] The apartment building will have a maximum height of 9.8 metres plus services. We find that this height is entirely acceptable. This is especially considering its overall modulation and external material that assist in creating horizontal (rather than excessively vertical) emphasis. Also, the building proposes reasonable floor to ceiling heights that would reduce internal amenity for future occupants if lowered.
4. There are commonly sensitivities associated with roof plant in low scale residential areas. However, in this context, we consider that the proposal is acceptable because it is confined in area and is centrally located on the building away from more sensitive interfaces and outlooks. More significantly, it will be viewed from most vantage points from the west, east and south as silhouetted against the backdrop of the taller and more robust built form of the nursing home under construction on the adjacent corner.
5. Buildings B and D exceed the 9 metre control for future development in the zone, at 9.15 and 9.8 metres respectively. Notwithstanding, we find these buildings appropriate overall given their centralised siting and design in addition to the relatively minimal extent of the exceedance. Buildings A, C and E are in the order of 6.75-7.4 metres.
6. We accept that the surrounding area is likely to exhibit its prevailing characteristics for some time, with limited capacity for change given its zoning, overlay and site configuration. However, as mentioned above, it is crucial to give recognition to the inclusion of the subject land in a separate zone from land opposite in Serrell Street, and from land behind in Nirvana Avenue. In our opinion, this presents a substantially different redevelopment opportunity for this site compared with its surroundings to the east and west.
7. We have regarded the proposed design guidelines contained within Amendment C175 as a seriously entertained proposal, noting the process to date, including the adoption of relevant documents by the responsible authority. At the same time, the final form of the guidelines and policies are not fixed, particularly since there were differences of opinion between the independent Panel and the responsible authority and the amendment is awaiting Ministerial approval. On this basis, we have proceeded with some caution in relation to more contentious aspects but have considered the relevant character statement and design objectives.
8. The responsible authority emphasised a perceived suite of deficiencies of the design response in terms of respecting character. These included a failure to reflect architectural form and elements of the buildings that dominate the neighbourhood in a meaningful way e.g. the presence of brick, render, pitched roof forms and the like. Similar submissions were made by objectors.
9. With respect, we consider that this position stems from an analysis of character and policy outcomes that are too simplistic. This is especially because the future character statement for this area recognises the scope for new buildings to offer innovative and contemporary design responses, provided they "complement" the key aspects of built form, scale and design detail of the older dwellings in the precinct.
10. There are any number of built forms and architectural techniques that can meet this brief, other than directly incorporating features of existing built form into the design. We find Mr Twite's description of the proposal as evidencing "modern, restrained architectural styling" apposite.
11. We accept the evidence of Mr Twite and Mr Biles that the proposal as a whole is a suitable addition to its policy and physical context. We regard it as a well thought out series of suitably scaled and separated buildings incorporating functional internal accessways within a landscaped setting[26].
12. One proposed design objective is to ensure new buildings do not dominate the streetscape. Another seeks to encourage high quality building detailing that references (but does not mimic) buildings in the area, as well as maintaining the rhythm of spacing between and around buildings.
13. In so far as the responsible authority and objectors were concerned about the presentation of the front townhouse building (A) to Serrell Street, they referred to its length of approximately 48 metres and its attached form as being totally uncharacteristic of the street and somewhat 'institutional'.
14. We accept that modern architecture can be a matter of taste. Beyond this, we have considered underlying design objectives as proposed.

1. From our perspective, it is important that the front townhouse building as proposed is limited to two storeys in form and that this provides an appropriate scale in the streetscape in terms of height[27]. Beyond this, we consider that the various architectural techniques employed are sufficient to provide an equivalent measure of respect for detailing, streetscape rhythm and the like.
2. The building does not exhibit sheer wall forms with a boxy presentation. Rather, it provides a combination of elements that craft and delineate the façade successfully. These include visually separating components of the façade into framed modules with shadow reveals and vertical louvres, variations in materials (albeit still domestic in nature), shifts in the floor plate and recessing or punctuating the entries.
3. In our opinion, they will appear as a row of modulated townhouses with spaced elements between that can be appreciated from front and oblique views in the streetscape. The design represents a conscious response to the influence of building pattern and rhythm in the streetscape. We consider that this response is legitimate and combines with its suitable scale and demure materials as the key to its 'fit'.
4. In addition, in terms of streetscape presentation, we find the proposed setbacks to the front townhouse building acceptable notwithstanding the responsible authority's submissions to the contrary.
5. For a start, the setbacks adopted would comply with the relevant ResCode standard[28]. While we accept that prevailing set backs opposite and further south may be larger (say in the order of 7-9 metres), we accept the evidence of Mr Twite and Mr Biles that those adopted represent a reasonable transition from the nursing home building on the corner to the apartment building on the subject land; to the townhouses on the subject land and then to the dwellings in Serrell Street further south. In addition, it is clear that there is scope for meaningful landscaping at the street interface as demonstrated by the landscape plan.
6. We accept that at present it is unusual in this streetscape context for semisecluded private open space to be provided within front setbacks. However, the future use will be a domestic residential one. Relevantly, we consider this general layout of the front portion of the proposed development is not at all foreign in layout, rather, it will have similar qualities to existing front gardens within a more compact configuration. We regard this as a built form outcome that is readily expected to flow from policies seeking increased housing density and changes in the provision of housing types.

Is adequate private and communal open space provided?

1. The responsible authority was concerned about the size and proposed treatment of various private open space areas. It also submitted that a centrally located communal private open space area should have been provided. Objectors were likewise concerned about the location and quality of communal open space, and expressed a strong preference for public open space to be provided within the development.
2. We reject the notion that this site is a suitable candidate for the provision of public open space (i.e. other than for communal use by residents and visitors) having regard to its location, size, zoning and proposed use. There are also other conveniently accessible areas of public open space nearby (in the nature of 'pocket parks'), including the recreation area in Serrell Street to the south.
3. As we advised at the hearing, the system of planning in Victoria that applies to suburban areas overwhelmingly addresses the provision and/or improvement of public open space via financial contributions made under the Subdivision Act 1988 at the stage at which subdivision approval is given. This ensures that the provision of public open space can be equitable and strategically planned on a municipal-wide basis.
4. We are generally comfortable with the communal private open space offered on the property, including the 560 square metre area of South Park. We see no necessity for such open space to be centrally located in circumstances where there is only a short walk from even the furthest apartment to this space. A positive feature of its proposed location is that it will buffer the built form interface with the dwelling to the south[29] and will also be generally visible from public Serrell Street views, rather than concealed within the site. It will also offer a range of landscape types, including lawn areas, decking, garden beds and more substantive planting near the street interface.
5. We consider that the amendments to provide this area of communal open space are desirable, notwithstanding the inherent challenges in terms of shadowing, levels, overland flows and the like. Appropriately, the main function of this space is to provide an open, landscaped area for recreation to supplement secluded private open space in the form of balconies and courtyards. We find that it would perform this function adequately and comment on this further below in so far as overland flows are concerned.
6. On balance, we accept the responsible authority's submission that the private open space for townhouses in building E are overly compact (and below ResCode standards) and that there is a ready opportunity for this to be increased by shifting the building 1.5 metres further south. This would not have any particular consequential impacts.
7. Aside from this, we regard the size, orientation and proposed landscaping of the private open space as commensurate to the nature of the proposed apartments and townhouses.[30] We also accept the provision of balconies for the apartments that are less than 1.6 metres in width considering their connectivity to habitable rooms, function, outlook and size above 8 square metres.
8. We regard the landscape plan proposed by Mr Merlo as providing a comprehensive, layered and high quality scheme for the site as a whole. This will be ensured via appropriate conditions.
9. We accept the submissions made by residents that proposed tree planting along the eastern boundary[31] may be too ambitious, resulting in tall evergreen screening that is not desired by them.
10. We have modified the draft permit conditions to provide for a mix of deciduous and evergreen trees reaching an approximate height of 4 metres at maturity (being the majority opinion of affected residents), with scope for the inclusion of native species including shrub under-planting. These species will be nominated by the project landscaper and will need to be considered appropriate for approval by relevant officers within the council before the landscape plan can be approved.
11. We are challenged to accept the responsible authority's submission that the landscape plan would provide too much/too tall vegetative screening[32] to the front townhouses fronting Serrell Street, especially in the context of its opposition to the overall form of this building.
12. There is a great variety in front landscaping of residential properties, and we consider that a more 'lush' and layered response is justified for a medium density proposal of this scale. We find that the landscape plan for the Serrell Street frontage would achieve a suitable balance of shielding residents from public views, while providing a green front setback with filtered views to the courtyards and townhouses beyond.
13. We consider the 1.7 metre high metal palisade fence acceptable in its streetscape context which includes various fence heights and types, particularly where it is not a solid fence that is proposed.
14. We consider that the proposal adequately meets objectives of the preferred future character and proposed design guidelines and would provide a landscaped setting to buildings with views to dwellings and front gardens.

Amenity impacts of the proposal, including parking, traffic and waste

1. We find that the proposed apartment and townhouses have been designed to avoid unacceptable impacts on adjoining properties which are commonly a product of medium density development in settled areas. It is commendable that the overshadowing and overlooking impacts of the proposal and the like have been well managed such that there were no substantive submissions at the hearing about these types of impacts.
2. In terms of Ms Entink's unit to the south[33], we consider that overshadowing will be well within the parameters of Standard B21 of ResCode, with limited to partial morning shadow. In addition, her service sideway is not overly sensitive, by comparison with habitable room windows beyond which will not be unreasonably affected.
3. Another key positive feature of the proposal is the extent of the separation of building forms from sensitive residential interfaces (including the Entink property[34]). For example, on the eastern side of the property, setbacks vary from 4.5 metres to 12.87 metres, with the majority of buildings set back over 8.7 metres from the common boundary. The closest dwelling face at the rear of Nirvana Ave properties is approximately 8 metres from the common boundary.
4. We find that the proposal demonstrates a high level of compliance with quantitative and qualitative ResCode standards, for example, those relating to side and rear setbacks and avoiding the construction of any walls on boundaries across this substantial site.
5. We accept the evidence of Mr Biles that partial (horizontal) screening between the apartments that face the nursing home on Waverley Road would be appropriate, noting the nature of that use, relevant sightlines and the desirability of preserving amenity for the future apartments.
6. Beyond this, we have carefully considered the proposed built form interface to the rear of properties in Nirvana Avenue. In line with questions we asked of the planning/urban design witnesses at the hearing, we find the design and detailing of this interface has been deliberately simplified, with minimal openings and just enough visual interest through materials and styling. The third storey components have been confined in size and well set back and, in the case of Building B, set within a sloped 'roof-type' form. The western elevation of Building C has been particularly well activated and resolved with suitable detailing to reduce its visual bulk.
7. Fundamentally, we support the design approach taken whereby dwellings are housed within a series of detached townhouse buildings of 2-3 storeys that have their "narrow face" to residential properties in Nirvana Ave. It is also relevant that the nature of the (more narrow) lot configuration behind means that each property will have a comparatively restricted view to the series of buildings across the site when looking west.
8. It is also relevant that the townhouses would be separated from the Nirvana Avenue properties by the internal roadway in addition to landscaping on both the subject land and in rear gardens. Likewise, the spacing between the various buildings is in the order of 13-20 metres, preventing the appearance of continuous built form from these rear gardens/living areas.
9. The Tribunal has commonly held that visibility is not the relevant test for acceptability of new buildings. Even if it had been, in this context, we consider that the extent of buildings that will be visible over the rear boundary fences will be limited to predominantly the second storey or front of parapet of the buildings in question. The buildings are well set back and in our opinion angled views over boundary fences would be limited to a small extent of third storey built form in the case of Buildings B and D (limited to one room in width in the case of Building B and a width of 10 metres in the case of Building D).
10. The site currently has limited vegetation cover. Overall, we do not take issue with the decisions taken by the permit applicant's team with the benefit of professional advice as to which trees should be retained and which should be removed.
11. We recognise that at present, an existing mid to large sized eucalyptus[35] is valued by residents to the rear of the property. However, we do not consider that the tree itself has sufficient retention value to justify reworking the siting of buildings in this part of the site having regard to the arborist's assessment.[36] This is especially where a plan will be implemented that will provide a comprehensive landscaped presentation of the site incorporating a large number of commonly used trees to a height of 5-7 metres (which is at a scale suited to the buildings and infrastructure proposed).
12. Turning to traffic and parking, the responsible authority did not raise any concerns in relation to these issues, noting that on-site parking exceeds that required by clause 52.06 and is supported by Council's Transport and Parking Department.[37] Notwithstanding, numerous objectors were concerned about traffic and parking impacts of the proposal in addition to on-site vehicle circulation and parking.

1. The permit applicant confirmed that the number of on-site parking spaces provided within the site exceeds ResCode requirements (113 spaces compared to Clause 52.065 requirement of 104 spaces) and that all parking spaces are in accordance with (or could be made to accord with) current Australian and Council Standards.
2. Local objectors acknowledged that on-site parking would be provided above ResCode rates for the number of dwellings proposed but remained concerned that on-street parking issues would be exacerbated either out of on-street convenience or through increased numbers of visitors. They also challenged various assumptions in the traffic evidence.
3. Objectors submitted that the presence of the child care facility and community meeting hall at the church further south of the site results in an increased number of cars parked and travelling in the street compared to that which would be expected in a purely residential street. They were concerned that the development of this site would further exacerbate the parking problem.
4. We observed the parking and traffic situation towards the end of a weekly morning peak hour during our site inspection and it was generally consistent with the submissions and evidence.
5. We consider that on-site parking for residents of the townhouses is, for the most part, particularly convenient adjacent to the entries to those dwellings. Permit conditions will ensure that they are at a comfortable gradient. For reasons we discuss below, we find arrangements for entry and parking to the basement to be workable. These spaces are likely to be attractive to future residents since they provide some increased security and weather protection compared with on-street spaces (if they were available). Similarly, we find the locations and design of visitor parking to be acceptable and there is no reason to assume that visitors to the development will choose to park on the street at first instance.
6. Mr Sellars' evidence in relation to transport impacts included the results of parking surveys undertaken by his consultancy within 100 m of the site along Serrell Street. These surveys indicated that there were an adequate number of vacant parking positions at the time of the surveys.[38] We note that the surveys were not necessarily undertaken at what could be considered peak times for on street parking. At the same time, given the rate of on-site parking provision, we consider that this would only become pertinent for any potential parking overflow.

1. In finding that the on-street parking impacts of the proposal would be acceptable, we have given consideration to:
   • the self-sufficiency of on-site parking for future residents in terms of the relevant ResCode standard, together with the provision of 12 car parking spaces for visitors (such that there is no planning permission sought for a reduction);
   • the wide frontage of the site to Serrell Street which would theoretically provide scope for any overflow parking in connection with the proposal, together with opportunities to park in Waverley Road if convenient. Even allowing for some increase in surveyed rates for peak parking demands, there is scope for overflow on-street parking. This increases dramatically within a 200 metre distance of the property;
   • the fact that most residential properties in the area have capacity for some off-street parking;
   • the extent of physical separation between non-residential uses in Serrell Street and the subject land, such that it is not reasonably expected that there will be any direct conflict;
   • the lack of current parking restrictions in Serrell Street, although these could be imposed at the discretion of the council as the road authority if warranted in future; and
   • the general availability of nearby public transport options to reduce parking pressure in connection with the proposal.

1. A host of concerns were raised by objectors in terms of the functionality of the proposed basement parking in particular. They considered that the layout would result in challenging manoeuvres.
2. We note that Council's engineers previously raised concerns in relation to the adequacy of the dimensions of some of the parking spaces. However, we were advised that it no longer pursued these in light of the amended plans.
3. Objectors queried Mr Sellars in relation to the class of vehicle used for the design of the underground car park. In particular, Mr McKenzie queried why the parking had been designed for B85 vehicles and not B95 vehicles.
4. Mr Sellars advised that the Australian Standard and the council design requirements were for a B85 vehicle and further, that based on his experience, modern vehicle sizes are now smaller than those historically used to calculate the various standards. We accept that, in principle, it is appropriate to design swept paths to accommodate B85 vehicles.

1. Mr Sellars advised that the swept path analysis used in the relevant software was generally considered conservative. It was his contention therefore that all vehicles commonly driven at present would be able to use the car parking on-site safely. He did accept however, that in some instances larger vehicles would be required to undertake multiple manoeuvres to enter a car parking space but noted that this was still considered acceptable practise under the Australian Standard.
2. In analysing the swept paths within the basement car park, we consider that even for the spaces that would require the most dexterity, they are well within the functional bounds and dimensions contemplated by the planning scheme and Australian Standard.[39] For example, they require minimal corrective manoeuvres and a clear vehicle overhang has been provided for relative to basement infrastructure. These spaces will, for the most part, be used by regular users who will be familiar with the layout.
3. Objectors also raised concerns in relation to the side and cross slope on various of the external car parks in the general vicinity of the eastern side of the site (e.g. the two parking spaces at the end of Building D).
4. Mr Sellars advised that the slopes provided to date had been based on modelling undertaken for the stormwater surface detention volume in the vicinity of the eastern boundary. He advised that these slopes could be re-graded as discussed at the hearing to ensure compliance with the relevant Australian Standard. We accept his evidence that this measure of re-grading (in North, Central and East Drive) is capable of implementation by permit condition.

1. In terms of traffic flows, objectors advised that Serrell Street frequently has cars parked on both sides of the road which requires oncoming vehicles to pull into driveway openings etc. to allow the other vehicle to pass. They were concerned that the increased traffic generated by the proposed development would cause unacceptable delays at the Serrell Street / Waverley Road intersection. They expressed further concern about the safety of the entry points to the site / underground car park and their proximity to Waverley Road.
2. Mr Sellars adopted a traffic generation rate of generate 0.4 vehicle movements per dwelling during peak hour and 4.0 vehicle movements per dwelling per day for the apartments on the subject land. A higher peak hour traffic generation rate of 0.5 vehicle movements per dwelling and a daily traffic generation rate of 5.0 vehicle movements per dwelling was adopted for the townhouses.[40] These rates were accepted by the Council's traffic engineers and they did not take issue with traffic impacts in this context[41].
3. Based on the above traffic generation rates, Mr Sellars considered that the additional traffic generated by the proposed development (total movements of 128 from the basement car park and 275 from the at-grade access) would not be expected to compromise the function or safety of the adjoining road network. This was relative to traffic counts in Serrell Street of 982 vehicles per day compared to its indicative capacity[42] of 2,000-3,000 vehicles. We consider that the impact on the arterial (Waverley) Road will be even less perceptible in the context of its existing 18,869 vehicles per day.
4. The post-development traffic projections presented at the hearing also included traffic movements for the nursing home under construction. The Waverley Road-Serrell Street intersection would retain comparable levels of satisfactory performance.[43]
5. Significantly, we note that Serrell Street is a connector road between Dandenong Road and Waverley Road and, as a result, can reasonably be expected to experience an increase of through traffic compared with other conventional local streets in the area. It is also relevant that a reasonable percentage of vehicles can be expected to travel northbound from the site[44], avoiding most residential properties in Serrell Street.
6. Overall, we accept the permit applicant's evidence that this additional level of traffic and its distribution would not unreasonably compromise the functioning or safety of the street network or the nearby intersection.
7. Despite the presence of a number of cars parked along Serrell Street during our inspection and the requirement for some vehicles to pull into driveways to allow the oncoming vehicle to pass, we do not consider this situation is unreasonable or unworkable for a local residential street, especially one with a connector function.
8. In relation to the proximity of the access points to Waverley Road, it was Mr Sellars' opinion that the distance from the intersection was adequate to enable vehicles to safely turn in and out of the site without impacting on the intersection. We agree with this analysis since the site is reasonably well removed from the intersection, with the closest entry/exit point some 40 metres from Waverley Road.
9. We further accept his evidence that due to the separation distance of approximately 24 metres[45] and comparatively low traffic volumes associated with both entrances/exits within the site itself there would be no adverse traffic impacts expected between the two entrances.

1. Residents' concerns in relation to on-site traffic movements primarily related to safety and noise concerns associated with traffic along the eastern boundary of the site (on East Drive). Adjacent neighbours in Nirvana Avenue were concerned that they would be unduly affected due to the presence of traffic both at the front and rear of their properties.
2. Mr Sellers confirmed that the internal road network is able to accommodate vehicles up to and including 8.8 m long satisfactorily. He further advised that the internal road layout is consistent with dimensions of the Planning Scheme and the relevant Australian Standard.
3. We accept that the development of the internal road network as a narrower 'shared way' type access system would assist in minimising the speed of vehicles and create a more pedestrian friendly environment within the site. This will be assisted by the provision of different surface treatments for the road pavements and proposed inclusion of a strong theme of landscaping along the internal roadways, to further enhance the more pedestrian environment rather than a 'road network'.
4. Based on the projected internal traffic volumes, together with the proposed treatment of the internal roads as akin to internal access laneways, we are satisfied that speed associated safety concerns are very unlikely to be an issue. With respect, we consider the risk of vehicles travelling east along North or Central Drive and driving over kerbing and landscaping and into rear fencing of properties along Nirvana Avenue to be unrealistic.
5. We find that normal vehicle noise from vehicles moving at a reduced speed around the site in connection with the townhouses would not result in an unacceptable impact on the adjacent neighbours. Also, headlights would be suitably buffered by distance, landscaping and fencing such that impacts on the Nirvana Avenue properties would not be direct.
6. A number of objectors submitted that a single width access ramp was insufficient for the basement car park, especially if vehicles needed to prop and wait.
7. We further raised a concern in relation to the orientation and gradients associated with the entry/exit ramp from the basement carpark. Also, in terms of its alignment, we were concerned that all vehicles exiting the basement carpark at night would be directing their headlights onto the windows of the front rooms of the two houses on the opposite side of Serrell Street.
8. Mr Sellars advised that the gradients for the car park meet Council's requirements but is not in accordance with the relevant Australian Standard in relation to the gradient immediately adjacent to the exit point. It was his opinion that due to the comparatively low number of vehicles using the ramp that the slightly steeper gradient in the vicinity of the exit was not an issue.
9. Although there are parts of the ramp that are a gradient of 1:4[46], we consider that this is allowed for under the design standards of clause 52.06. Also, we consider that the gradient at the top of the ramp is acceptable at 1:10[47] having regard to overall vehicle numbers using the basement (and the associated low probability of vehicle conflict)[48] in light of the fact that there is a wide verge and crossover proposed.[49] We accept Mr Sellars' evidence that even if an incoming vehicle was to prop temporarily, this would not materially affect the operation of the accessway.
10. On balance, we find that a single width access of 3 trafficable metres is adequate for a basement car park that services 45 vehicles with its expected daily volume of 128 with 13 movements per peak hour. Even if this volume were to be regarded as highly conservative, it would still be comfortably within the design recommendations[50] for a single width accessway for up to 30 movements per peak hour.
11. In relation to our concerns about the alignment of the exit/entry to the basement carpark, the permit applicant provided the Tribunal with a sketch plan identifying two internal locations where it may be feasible to relocate the entry/exit ramp.
12. While the repositioning of the entry/exit ramp internal to the site would appear to the Tribunal to be a more preferable location we acknowledge that the currently proposed location meets Council requirements and that with appropriate planting/fencing by owners of the houses on the opposite side of Serrell Street the amenity impacts of vehicles leaving the basement carpark at night could be minimised.[51]
13. We are cognisant of the fact that the role of the Tribunal is not necessarily to identify and require the best design but to evaluate whether the proposed design is suitable.[52] Therefore, while observing that an internal entry/exit ramp location might be more appropriate, we accept that the location and gradient of the proposed design is appropriate as proposed.

1. Objectors expressed concerns about waste management including noise issues associated with waste collection vehicles around the site, access into and within the basement carpark, and in ensuring that all waste streams have been addressed appropriately.
2. We accept that these issues were dealt with by the permit applicant in a somewhat piecemeal way in so far as the information provided to objectors was concerned. We subsequently established various means by which these documents/issues could be considered and responded to at the hearing.
3. We were provided with an updated version of the Waste Management and Recycling Plan[53] prepared for the site which included swept path and clearance diagrams for the underground car park demonstrating that the proposed private waste collection vehicle will be able to access and navigate around the underground car park. The Waste Management Plan also addresses noise aspects and the collection of recyclables and waste from both the apartment block and the various townhouses.
4. As noted above the internal road network has been designed to enable access by larger vehicles, including private waste collection vehicles. We are therefore satisfied that there are no access issues associated with the collection of waste from the site.
5. We note that commercial waste collection vehicles are required to comply with normal vehicle noise emission standards and the bins proposed to be used for the townhouses are standard plastic wheelie bins and not large metal bins which may result in increased noise levels during collection.
6. Basement waste collection is intended four times per week for a confined period of time, with conventional waste/recycling collection once a week. We do not regard this activity as problematic at these relatively low frequencies.
7. The Tribunal is therefore satisfied that the potential impact of increased noise at the rear of the Nirvana Avenue properties which abut the site will be limited. The overall impact on residential properties will also be substantially less than if the equivalent waste was collected from Serrell Street directly.
8. Objectors raised concerns in relation to the management of green waste within the site noting that the site will have extensive landscaping, but it is not proposed to provide a green waste collection service for the townhouses or the apartment building.
9. The Tribunal was advised that the public area landscaping within the site would be managed under a landscaping management contract which would be administered by the body corporate or equivalent. Public area green waste will be managed in accordance with the waste management and recycling plan and the landscaping management plan. Green waste produced in the townhouses and apartment building will be minimal and would be expected to be disposed of by the occupants.
10. We are satisfied that waste management will be adequately addressed and is not a basis for rejecting or modifying the proposed development.

Has a suitable framework been provided for the drainage of the site in the context of the relevant catchment and potential for flooding?

1. A number of local objectors appear to have experienced flood events. In this context, their drainage concerns related to the capacity and design of the piped stormwater system to ensure that flood levels would not be increased either upstream or downstream of the site and that site surface stormwater discharges during major storm events would not be increased. They were also concerned with the stormwater impacts of the new nursing home development on Waverley Road and its capacity for cumulative impact.
2. Significantly, there is a requirement for a planning permit for buildings and works by virtue of the Special Building Overlay (SBO) that applies to part of the site. The Council is the relevant authority under the overlay.
3. However, the controls within that overlay provide an exemption from notice and review rights. In light of the permit applicant's objection, we accepted that it would not be appropriate for submissions to be made by objectors on drainage issues directly pertaining to relevant considerations under SBO since this would defeat the purpose of the exemption.
4. Nonetheless, as we explained at the hearing, we are sitting as an expert independent Tribunal (comprising a qualified and experienced civil engineer) with capacity to determine drainage issues. We have assessed the proposal independently in this regard, notwithstanding the current position of support by the responsible authority following a thorough process of examination and modelling.

1. The site is situated within a piped drainage catchment within the City of Stonnington. There are five notable aspects of the current drainage system relating to the site:

1. Piped drainage from the residential area upstream and to the west of the site collects road drainage from Serrell Street and is piped under the site towards the east. The pipe system then continues via an easement through number 51 Nirvana Avenue where it collects road drainage and continues further to the east. 2. Existing surface drainage on the site gravitates to an open grated pit adjacent to the eastern boundary of the site. This pit discharges into the main drainage pipe to the east.

1. There is an existing drainage pipe which collects off-site stormwater from the south of the site which drains to the north parallel to the eastern boundary and discharges into the main drainage pipe to the east at the open grated pit.

1. Stormwater from the aged care facility to the north of the site on Waverley Road (currently under construction) discharges via a pipe running south, adjacent to the eastern boundary and discharges into the main drainage pipe near the open grated pit. 2. During major storms, overland stormwater flow from the east crosses Serrell Street, flows over the site and then discharges through the rear fences of several properties along Nirvana Avenue.

1. A drainage strategy for the proposal was originally prepared by Breese Pitt Dixon on behalf of the applicant. This proposal was considered by Council's drainage engineers who were generally satisfied with the scheme, subject to conditions.
2. The Council resolved, however to refuse the planning application on drainage grounds and GHD was engaged by Council to undertake a drainage investigation of the wider area including this catchment. As part of the GHD hydrologic and hydraulic modelling of the Belgrave Road catchment a series of options were investigated to test and refine the Breese Pitt Dixon design.
3. The modelling identified that Option 4 achieved superior outcomes to current conditions in all relevant rainfall events and again Council's drainage engineers reviewed the proposal, were satisfied and formulated specific planning permit conditions. Subsequently the Council withdrew its grounds of refusal relating to drainage on this basis.
4. The applicant then engaged Mr Ravida of Reeds Consulting to peer review the GHD report; who confirmed the suitability of the Option 4 outcomes.
5. The proposed piped drainage system for off site stormwater comprises[54]:
   1. A replacement of the main on site drainage pipe with a new and larger pipe situated adjacent to the southern boundary, in the proposed "South Park" which will be connected to the existing drainage systems up and downstream of the site.
   2. Off-site drainage from the south will be collected in a new and larger pipe running adjacent to the eastern boundary which would discharge into the main drainage pipe.

1. Off-site drainage from the new development to the north will continue to use the existing pipe which discharges into the main drainage pipe and has been modelled to incorporate the flows from the new development.
   1. Off-site overland drainage from the east will be conveyed across the site via a drainage swale through South Park to the lowered road network parallel to the eastern boundary. Surface drainage off site during major storms will be constrained to pre-existing flows by the incorporation of a concrete kerb adjacent and parallel to the eastern boundary.

1. All on site drainage will be collected via a pit and pipe network, which will discharge to a gross pollutant trap to be situated adjacent to the eastern boundary of the site. The gross pollutant trap will then discharge into the main drainage pipe.
2. As the amount of impervious area on the site will increase due to the development it is necessary for additional storage capacity to be created on site to ensure that the rate of off-site discharge will be no greater than existing. This is proposed to be achieved by the incorporation of large diameter stormwater pipes in South Park and in East Road with a smaller diameter discharge pipe into the main drainage pipe designed to limit off-site discharges to the same or less than existing.
3. The Tribunal was advised that the proposed system will in fact marginally reduce flooding levels both up and downstream during major storms. We are satisfied with the veracity of the design proposed by Option 4 having regard to outcomes to manage water flows on the subject land and to protect the surrounding area. We are also content to support the removal and variation of easements as proposed to reflect this system.
4. Resident objectors also sought to raise concerns about potential impacts on stormwater levels and flows due to the proposed landscape plantings within South Park.
5. Mr Merlo, the landscape architect for the proponent, advised that the choice of plantings within South Park had all been reviewed by the responsible authority's drainage engineers to ensure that water flows and storage capacity would not be unduly affected. For example, certain structures such as seating were re-designed and relocated to allow for water flows through.
6. We have considered relevant grades for the proposed design of South Park in light of potential water flows. We accept that this area is suitably designed in conjunction with the remainder of the site to produce a generally useable (mostly linear) area for recreation and to avoid undue stormwater impacts. While part of this area will be in shadow during relevant times measured at the equinox, there will be a range of areas within the space that would not be impacted. This would provide a degree of choice to future users.
7. Based on the modelling undertaken and peer review we are satisfied that the development of the site will not have any detrimental effects on the current or future stormwater regime either up or downstream of the site. For the record, the permit applicant confirmed the permeability of the site at 22.02% following the hearing. While the GHD modelling assumed a higher degree of permeability, we find the difference immaterial for the flood events modelled.
8. We also note that the quality of stormwater discharging from the site will be maintained by the incorporation of a gross pollutant trap prior to any discharge to the main stormwater pipe. Further conditions of the permit will also require water sensitive urban design measures to be adopted.

1. The responsible authority circulated draft permit conditions in line with Tribunal expectations. These were refined as the hearing progressed (including through expert evidence) and all parties had the opportunity to comment on/contribute to them.
2. We do not propose any material changes to the proposal as currently designed. Rather, we consider that the permit conditions should properly focus on ensuring that what is committed to is actually undertaken to the requisite standard.
3. As mentioned above, we have focused on objectors' concerns with the proposed landscaping along the eastern (Nirvana Avenue) property boundary. We will set parameters for the amendment of the landscape plan (with species selection, distribution and number to the satisfaction of the responsible authority[55]). At the same time, we observe that it would most likely be appropriate to maintain the relative regularity of the planting scheme proposed for the site as a whole.
4. Mr Sellars identified two draft conditions which he sought to modify to enable a degree of flexibility in the refinement of the final parking layout and design.
5. We accept that it may be desirable and on occasion necessary to provide some flexibility to enable the refinement of design at the detailed design stage. However, we are of the opinion that in order to ensure an appropriate outcome the level of flexibility allowed should always be in accordance with the relevant standards etc. We have adopted the view that the relevant condition 1(b) should be reworded as follows (as accepted by the council and permit applicant at the conclusion of the hearing):

Any variation from the plans listed above to the vehicle access, internal road layout, car parking layout and bicycle parking layout must be in accordance with the Planning Scheme, and where appropriate, the relevant Australian Standard, or to the satisfaction of the responsible authority. [Emphasis added.]

1. In response to draft condition 1(c), the permit applicant submitted that there should be no allocation of car parking spaces within the basement to particular tenancies. The responsible authority maintained that allocation of spaces is important to ensure that there is adequate parking supply for each dwelling.
2. We accept the latter position, but have agreed to modify the condition to require only the relevant number of spaces required to meet the ResCode standard to be allocated, with the rest at large. Also, tandem spaces should be allocated to the one tenancy to be workable.
3. If parking space allocation needs to be varied over time, this can be addressed by secondary consent under condition 2 of the permit. We prefer this approach to the addition of a parking management plan requirement under the permit when the parking arrangement is otherwise relatively straightforward.
4. We are therefore satisfied that, subject to conditions to be imposed, there is no issue in relation to on-site parking that would preclude approval of the development.

1. We appreciate that redevelopment of this large site within an established residential neighbourhood is contentious. Ultimately, its acceptability hinges on the application of relevant planning policies having regard to site context.
2. We find that there are strong policy directions supporting the development of this site in the manner proposed, and that it responds acceptably to existing preferred neighbourhood character. We consider that traffic, parking, waste, landscaping, drainage and other off-site impacts will be managed acceptably by the proposal.
3. For the reasons explained above, the decision of the Responsible Authority is set aside. A permit is issued subject to conditions.

• Development of two or more dwellings on a lot in the General Residential Zone;
• Buildings and works under the Special Building Overlay (part of land); and

Removal and variation of easements under Clause 52.02, in accordance with the endorsed plans.

1. Before the development starts, three (3) copies of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the plans prepared by Conrad Architects Pty Ltd, Project No. C1401, Drawings TP02, TP05, TP09, TP10, TP11, TP12, TP13, TP15, TP20, TP21 and TP22 (all revision D) but modified to show:
   • (a) The northern window to the western bedroom of Apartment 1.02; northern terrace / balcony to Apartment 1.02; northern window to the western bedroom of Apartment 1.03; northern terrace / balcony to Apartment 1.03; northern terrace / balcony to Apartment 1.04; and northern terraces to Apartments 2.01, 2.02 and 2.03 to be screened in accordance with Standard B22 or otherwise to the satisfaction of the Responsible Authority.
   • (b) The gradient of all at-grade car parking spaces to comply with the relevant Australian Standard.
   • (c) Any variation from the plans to the vehicle access, internal road layout, car parking layout and bicycle parking layout must be in accordance with the Planning Scheme and where appropriate the relevant Australian Standard, to the satisfaction of the Responsible Authority.
   • (d) Parking spaces within the basement numbered and allocated to the individual dwellings of the apartment building in accordance with the rate specified in clause 52.06 of the planning scheme. The remaining spaces may be allocated or unallocated at the discretion of the permit holder.
   • (e) A schedule of materials and finishes (including colour and material sample boards) to show materials, colours and finishes to all external walls, fascias, window frames, glazing type and doors.
   • (f) The airconditioning units of the dwellings in Buildings A, B, C and E located in the ground level secluded open spaces of those dwellings.
   • (g) The inclusion, location and specifications of 'way finding' signage to guide drivers and pedestrians to the carparking spaces and dwelling entrances within the subject site.
   • (h) Any changes required by conditions 3, 5, 6 and 9.
   • (i) A shift in the floor plates of Building E by 1.5 metres to the south, with commensurate increase in private open space for each townhouse.
2. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason (unless the Stonnington Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.
3. Concurrent with the endorsement of plans, a landscape plan to be prepared by a landscape architect or suitably qualified or experienced landscape designer, must be submitted to and approved by the Responsible Authority. The Landscape Plan must be generally in accordance with the Landscape Plans prepared by Jack Merlo dated 16 March 2015 but amended to:
   • (a) detail the ongoing maintenance and vegetation replacement regime, including the management of vegetation along common boundaries;
   • (b) show varying pavement treatments for all internal roadways that encourage driver recognition of a shared vehicle/pedestrian internal road network;
   • (c) show all paving treatment/s;
   • (d) confirm that the finished levels, plantings and other landscape structures are consistent with the drainage design required by condition 10 of this permit;
   • (e) an alternative landscaping treatment along the east boundary (adjoining the Nirvana Avenue properties) providing for a mix of deciduous and evergreen trees and shrubs to a maximum height of 4-5 metres at maturity including a proportion of native species, with such alternative treatment to be prepared by the permit holder after consulting with the owners of the Nirvana Avenue properties (if those owners wish to be consulted).
4. Prior to occupation, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority. Landscaping must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
5. Concurrent with the endorsement of development plans a Tree Management Plan prepared by a suitably qualified arborist must be submitted to and approved by the Responsible Authority. When approved, the tree management plan will form part of this permit and all works must be done in accordance with the Tree Management Plan. The Tree Management Plan must detail measures to protect and ensure the viability of existing vegetation within the Nirvana Avenue properties along the eastern boundary of the site and the two trees within the subject site depicted in the landscape plans as being retained.

Without limiting the generality of the tree management plan must include the following:

(a) Pre-construction - details to include a tree protection zone, height barrier around the tree protection zone, amount and type of mulch to be placed above the tree protection zone, the method of undertaking planting within the tree protection zone, and method of cutting any roots or branches which extend beyond the tree protection zone.

(b) During-construction - details to include watering regime during construction and method of protection of exposed roots.

(c) Post-construction - details to include watering regime and time of final inspection when barrier can be removed and protection works and regime can cease.

1. Concurrent with the endorsement of any plans a Sustainable Management Plan (SMP) must be submitted to and approved by the Responsible Authority. Upon approval the SMP will be endorsed as part of the planning permit and the development must incorporate the sustainable design initiatives outlined in the SMP to the satisfaction of the Responsible Authority. Amendments to the SMP must be incorporated into plan changes required under Condition 1. The report must be generally in accordance with the SMP prepared by Irwin Consult dated 9 July 2014 but updated to address the following:
   • (a) More specific targets should be identified for specification of materials (for example Green Star limits on VOCs etc).
   • (b) A representative number of units (minimum 25% for each type of dwelling proposed) from a variety of orientations are assessed against BCA requirements.
   • (c) The SMP indicates a 6.4 star average rating has been achieved for the development based on the 7 units assessed. Applicant to note that an average rating should be provided separately for townhouses and apartments as they are different types of dwelling.
   • (d) Confirmation of which window/glazing specifications will be adopted as three potential scenarios (with different ratings outcomes) are presented in Appendix A.
   • (e) Fabric assumptions presented separately for townhouse and apartments.
   • (f) An amended STEPS assessments for the townhouses and apartments utilising the average, not best energy rating scores for each building type.
   • (g) The location of the proposed gas boosted solar hot water systems collectors for Lot 3 townhouses must be amended.
   • (h) Information about the lifts proposed to the Lot 1 townhouses along Serrell Street.
   • (i) A new response to Council's WSUD policy and requirements as outlined in the SDAPP program. Applicant is required to utilise an appropriate stormwater modelling tool (such as MUSIC), and provide greater detail within the SMP to demonstrate compliance with Council's policy requirements. STORM is not appropriate or applicable to a site of this scale.
   • (j) Site and roof plans annotated to confirm the location, dimensions and connections (e.g. to internal toilets) for stormwater detention/treatment measures, the location and drainage areas connected to stormwater detention/treatment measures such as rainwater tanks and/or raingardens and cross-sections and indicative management and maintenance plans to be provided for proposed treatment measures such as raingardens.
   • (k) The report updated with commitments to develop a construction phase stormwater pollution reduction strategy and specific targets or standards for materials.
   • (l) Dimensions and type of cycle storage indicated on plans.
   • (m) A revised Building Users' Guide (BUG) which ensures aspects such as management, maintenance and appropriate use of on-site sustainability initiatives such as rainwater tanks, solar panels etc. are adequately covered in the BUG and targeted to both residents and future site/building managers.
2. Prior to the occupation of the development approved under this permit, a report from the author of the Sustainability Management Plan, approved pursuant to this permit, or similarly qualified person or company, must be submitted to the Responsible Authority. The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the Sustainability Management Plan have been implemented in accordance with the approved plan.
3. The project must incorporate best practise Water Sensitive Urban Design initiatives to be detailed in the endorsed site plan and/or stormwater management report to the satisfaction of the Responsible Authority.
4. Concurrent with the endorsement of plans, a Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan must be generally in accordance with the Waste Management Plan by Waste Wise Environmental dated 30 September 2014 but updated to include details of bin storage for all dwellings and arrangements for storage and collection of hard and green waste.
5. The overland flow path shown on TP05 Revision D dated 13 March 2015, must at all times remain free of obstruction.

Prior to the commencement of the development, a detailed drainage design for the relocation of the Council stormwater drain prepared by a suitably qualified Engineer, must be prepared to the satisfaction of the Council. The detailed design must be generally in accordance with that set out as 'Option 4' within the GHD Drainage and Investigation Report (dated 13 March, 2015) but modified to include the specification of a minimum height of the concrete kerb along the east side of the site to comply with the modelling requirements.

1. The drain must be relocated in accordance with the Council approved plan to the satisfaction and under the supervision of Council's Infrastructure Unit.
2. Prior to any subsequent subdivision, the drainage easement covering the existing Council stormwater drain to be relocated, must be relocated centrally over the new drain to the satisfaction of Council's Infrastructure Unit. The width of the new easement must be 3.0m wide and be in favour of Council.
3. Prior to the issue of a statement of compliance for any subsequent subdivision of the subject land, a connecting 1.83 metre wide easement and drain must be provided for numbers 64-70 Serrell Street, to the satisfaction of Council. A detailed drainage design prepared by a suitably qualified Engineer must be prepared to the satisfaction of Council. The drain must be constructed/reconstructed in accordance with the Council approved plan to the satisfaction and under the supervision of Council's Infrastructure Unit.
4. A report for the legal point of discharge must be obtained from Council and drainage design, for this development must be prepared by a suitable qualified Engineer, in accordance with the report prior to a building permit being approved.
5. Drainage must be provided to all lots, all internal roads and common property to the satisfaction of Council. Thereafter, the internal drainage system must be maintained to the satisfaction of the Responsible Authority.
6. Prior to a building permit being issued, the drainage design to the development must include a detailed on-site detention system to control the discharge of stormwater run off from the site, to no greater than pre-development levels for the 1 in 10 year A.R.I storm. This detention system must also conform with clause 12.18 of the Planning Scheme (Stormwater Management).
7. Prior to a building permit being issued, the drainage must be constructed in accordance with the engineer's design and certification for the completed drainage must be provided to Council, prior to the Statement of Compliance being issued for any subsequent subdivision of the subject land.
8. Prior to a building permit being issued, if individual lots for a staged subdivision are created, a drainage design must be provided for the lots by a suitably qualified engineer and approved by Council. The drainage works must be completed in accordance with the approved plan to the satisfaction and under the supervision of Council's Infrastructure Unit.
9. The existing footpath levels in Serrell Street must not be lowered or altered in any way (to facilitate the development levels including the basement ramp).
10. All footpaths must be designed to meet the minimum design requirements set by the Australian Standards and the Disability Discrimination Act (DDA) and designed and constructed in accordance with Council's design details, and to the satisfaction of Council's Infrastructure Department.
11. All redundant vehicular crossings must be removed and the footpath, nature strip and kerb reinstated at the owner's cost to the satisfaction of Council.
12. All plant and equipment (including air-conditioning units) shall be located or screened so as to minimise visibility from any of the surrounding footpaths and from overhead views and shall be baffled so as to minimise the emission of unreasonable noise to the environment in accordance with Section 48A of the Environment Protection Act 1970 to the satisfaction of the Responsible Authority. Ventilation systems must be designed and installed in accordance with relevant Australian Standards.
13. Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.
14. All services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
15. Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.
16. Prior to occupation, all screening devices designed to limit overlooking that are required to meet Standard B22 must not have more than 25% openings or they must be of solid translucent panels, permanent, fixed and durable and designed and coloured to blend in with the development to the satisfaction of the Responsible Authority.
17. Prior to occupation of the dwellings hereby authorised, all areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:
    • (a) constructed and available for use in accordance with the endorsed plan;
    • (b) used for no other purpose;
    • (c) formed to levels, constructed, line marked, sealed, illuminated and drained to specifications approved by the Responsible Authority; and

maintained at all times to the satisfaction of the Responsible Authority.

1. All damaged road(s) and footpath(s) adjacent to the subject site must be reinstated to the satisfaction of the Responsible Authority.
2. The amenity of the area must not be detrimentally affected by the development through the transport of materials, goods or waste to or from the subject land or the deterioration or lack of maintenance of the buildings, works or landscaping.
3. Before any 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 form part of this permit and may only be amended with the approval of the Responsible Authority. The plan must provide for or include the following:
   • (a) a pre-construction condition survey of all adjacent Council roads;
   • (b) containment of dust, dirt and mud within the site and method and frequency of clean up procedures in the event of build-up of matter outside the site;
   • (c) on site facilities for vehicle washing;
   • (d) methods for management of noise and general nuisance;
   • (e) site security;
   • (f) waste and stormwater treatment;
   • (g) construction program;
   • (h) designated routes for trucks delivering to the site;
   • (i) delivery and unloading points and expected frequency;
   • (j) an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services;
   • (k) an emergency contact that is available for 24 hours per day for residents and the Responsible Authority in the event of relevant queries or problems experienced;
   • (l) traffic management measures;
   • (m) the days and hours of construction, such days and hours to comply with any Council local law governing building site activities.
4. During the construction of the development:
   • (a) any stormwater discharged into the stormwater drainage system must comply with EPA guidelines;
   • (b) stormwater drainage system protection measures must be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises enters the stormwater drainage system;
   • (c) vehicle borne material must not accumulate on the roads abutting the site;
   • (d) the cleaning of machinery and equipment must take place on site and not on adjacent footpaths or roads;
   • (e) all litter (including items such as cement bags, food packaging and plastic strapping) must be disposed of responsibly; and
   • (f) all site operations must comply with the EPA Publication TG302/92.
5. This permit will expire if one of the following circumstances applies:
   • (a) The development is not started within two years of the date of this permit.
   • (b) The development is not completed within four 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 six months afterwards.

[1] Mr Ravida's evidence was largely oral and did not comply with the Tribunal's Practice Note since he was in hospital at relevant times.

[2] A number of respondents attended the hearing in its entirety, whereas others attended only part of the hearing.

[3] Part of the site is currently used for construction storage in connection with the nursing home on the corner of Waverley Road and Serrell Street (398-402 Waverley Road).

[4] On one site, including car parking for these uses.

[5] Formerly part of a bowling club that has been converted to a park as well as a number of residential properties fronting Bowlers Way.

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

[7] Clause 8.0 of Schedule 10 to the General Residential Zone.

[8] Whitefeather Group Pty Ltd v Bayside CC [2014] VCAT 1193.

[9] We were advised that the council is the relevant authority in this instance.

[10] Referenced in clause 10 of all planning schemes.

[11] Distinguished from areas of Minimal or Substantial Change.

[12] Formerly categorised as Neighbourhood centres.

[13] As referred to in numerous decisions quoted by the permit applicant, and with whose reasoning we generally agree.

[14] Per 631 Orrong Road Pty Ltd v Stonnington City Council & Ors [2015] VCAT 23.

[15] Locksley Fine Homes v Banyule CC & Ors [2014] VCAT 1420.

[16] It also generally accords with the earlier finding of the Tribunal in relation to an alternative proposal for the subject land, where it was considered that a three storey larger built form could be acceptable especially if located away from sensitive interfaces subject to other site issues being resolved, Regis Group Pty Ltd v Stonnington CC & Ors [2008] VCAT 2336.

[17] Following the last set of amendments to the plans and anticipated design and construction quality.

[18] According to the Neighbourhood Character Review 2013, referenced in clause 21.09 of the planning scheme and sought to be included in proposed 22.23 via Amendment C175.

[19] In line with the adopted version in Amendment C175.

[20] As well as its breadth of frontage at approximately 92 metres wide.

[21] Referred to by Ms Brennan as "gracious" existing housing stock.

[22] Its outline is still evident on the property and is clear from aerial photography.

[23] On 19 September 2014, while it exhibited a similar layout and design but before the proposal was amended to include South Park for example.

[24] Specifically, that building would have an approximate maximum height of 13.6 metres measured at the Waverley Road frontage with a ground floor setback to Serrell Street of some 6.08 metres. Its fourth storey form would continue along a similar floorplate near the subject land but allowing for a corner recess.

[25] By virtue of the current zone provisions, noting that transitional provisions apply to this proposal.

[26] It also has a total site coverage of approximately 40%.

[27] Maximum 6.95 metres to top of parapet.

[29] At 70 Serrell Street. We were advised that the owner/occupier of that property withdrew their objection on the basis of this amendment.

[30] While some will still not meet Standard B28, we note that all have secluded private open space of 25 square metres or more but that not all will have a total of 40 square metres per dwelling.

[31] A row of Smooth Leaved Quandongs estimated to be maintained at 8 metres at maturity.

[32] Mainly in the form of Upright Zelkovas.

[34] With a separation between building forms of 7 metres.

[36] Giving this tree a worthiness of retention rating 3, noting "split prone pressure fork at 1m above ground. Insect borers prevalent. Substantial presence of dead wood" per Galbraith & Associates 20 May 2014. This position was supported by the responsible authority's arborist.

[37] See for example, the officer's report contained at page 76 of the Council general business document, dated 15 December 2014.

[38] With a maximum take up of 37% of available parking.

[39] The most manoeuvres will be required for the townhouses opposite where East Drive narrows to preserve the existing tree, but we find that even those will be entirely acceptable.

[40] Extrapolated from The Victorian Integrated Survey of Traffic and Activity 2009 (Vista 09).

[41] Advising that "additional traffic generated by the development will impact the area when compared to existing conditions, the overall traffic conditions post-development are expected to remain satisfactory", extracted from an internal assessment quoted at page 76 of the Council General Business document, dated 15 December 2014.

[42] We indicated at the hearing that we accept Mr Sellars' assessment of it as having characteristics of an Access Street-Level 2 given its configuration and function.

[43] Factoring in a SIDRA analysis in the assessment.

[44] In the order of 45-56% on Mr Sellars' calculations at peak hour.

[45] From the outer edge of the northern crossover to nearest edge of the southern crossover.

[46] For a length of 7.8 metres, with 1:4.5 grade for another 2 metres closer to the entry.

[47] For a length of 5 metres. This would comply with the planning scheme but not the Australian Standard which suggests a gradient of 1:20.

[48] As well as its separation distance from the intersection.

[49] With approximately 6 additional metres to edge of bitumen at a far reduced gradient.

[50] Of the relevant Australian Standard.

[51] We also note that the current owners and occupiers did not object to the proposal on this basis.

[52] That is, our role is to adjudicate on an acceptable, rather than an ideal, response in line with the decision of His Honour Justice Osborne in Rozen v Macedon Ranges SC [2010] VSC 583.

[53] Waste Management and Recycling Plan. 72 - 76, Serrell Street Malvern East. Waste Wise Environmental. 30 September 2014

[54] Based on Option 4 of the GHD plans dated 13 March 2015 which has been adopted by the permit applicant and supported by the responsible authority.