1. Before the development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and three (3) copies provided, and they must be substantially in accordance with the plans submitted with the application but modified to show:

a) Provision of a 3 metre setback of the upper level of the building to the northern boundary.

b) Screening measures on all north facing windows to the satisfaction of the Responsible Authority.

c) Deletion/modification of the loading bay and its replacement with a car space or spaces.

e) Access arrangements in accordance with the Plan included as Appendix B in the report of Grogan Richards Pty Ltd dated 20 February 2004.

2. The layout of the site and size, design and location of the buildings and works as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

3. Before any building is occupied, areas set aside for car parking, access lanes and driveways shown on the endorsed plans must be:

b) formed to such levels and properly drained so that they can be used in accordance with the endorsed plans;

d) clearly marked to show the direction of traffic along the access lanes and driveways

4. Within 30 days of the endorsement of the plans, a landscape plan generally in accordance with the "Landscape Concept Plan" of Contour Design Australia Pty Ltd (TP01 - 22 January 2004) and incorporating:

a) an accurate survey of all existing vegetation to be removed and retained and other natural features;

c) a schedule of all proposed trees, shrubs and ground cover, which will include the location, number, height and spread at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as required;

d) paving, retaining walls, fence design details, and other landscaping works including areas of cut and fill and finished site levels;

e) the provision of advanced screen tree planting (minimum height of 2m at the time of planting) along the north boundary;

f) tree protection measures around existing vegetation to be retained;

g) details of a vegetation maintenance management plan.

must be submitted to the satisfaction of the Responsible Authority and when endorsed it will form part of this Permit.

5. Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.

6. All landscaping works shown on the endorsed landscape plans must be maintained and any dead, diseased or damaged plant replaced, all to the satisfaction of the Responsible Authority.

7. Without the prior written consent of the Responsible Authority, all trees on the land must be retained, unless otherwise shown as a tree to be removed on the endorsed landscape plan.

8. The land must be drained to the satisfaction of the Responsible Authority and all drainage works must be completed prior to the occupation of the building.

9. Stormwater drains are to be connected to a legal point of discharge approved by the Melbourne Water Corporation and / or Council. Drainage Connections to Melbourne Water's drains or watercourses, within a road reserve, parkland, within an easement or to a Health Act drain must be to Council's standards. A Council Supervision Permit is required for this work. Approval is required from the Melbourne Water Corporation to make a connection to the drain and / or watercourse. All fees and charges associated with the connection are to be borne by the applicant.

10. Any new crossovers(s), alterations or additions to an existing vehicle crossing must be in accordance with VicRoads guidelines, Council's standard details and specifications and the parameters of the Council Policy for Vehicular Crossover for Individual Residential Property Titles, adopted on 28 October 2002. A Council Supervision Permit is required for this work.

11. The applicant will be required to meet the full cost of reinstatement of Council assets damaged as a result of building or construction works. The reinstatement of any and all damaged street assets (ie. road, crossover, footpath, nature strip, kerb and channel, drainage assets, etc.) is to be borne by the applicant and must be in accordance to Council Standards. A Council Supervision Permit is required for this work.

12. Redundant vehicular crossing(s) must be removed at the same time as the construction of any new crossover(s) and prior to the completion of development works. The cost of removal of the existing crossing(s) and the reinstatement of street assets (ie. footpath, nature strip and kerb and channel) is to be borne by the applicant and must be in accordance to Council Standards. A Council Supervision Permit is required for this work.

13. All loading and unloading of vehicles must be carried out within the boundaries of the land, to the satisfaction of the Responsible Authority.

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

15. All bins and receptacles used for the collection and storage of garbage, bottles and other wastes must be kept in a storage area and screened from view to the satisfaction of the Responsible Authority.

16. A two way vehicular crossover at the access road / Toorak Road intersection shall be constructed in accordance with the Plan at Appendix B in the report of Grogan Richards Pty Ltd dated 20 February 2004 and to the satisfaction of the Responsible Authority.

17. The applicant shall be responsible for the construction and cost of the access road to the satisfaction of the Responsible Authority.

18. The access road shall be constructed to a trafficable standard in accordance with Council standards. A suitable design and construction plan shall be submitted to Council's Manager Infrastructure Design for approval.

19. The finished treatment of the west wall of the building is to be to the satisfaction of the Responsible Authority in consultation with the property owner at No. 1149 Toorak Road.

20. The maintenance of public art in the display areas is to be to the satisfaction of the Responsible Authority.

a) The development and use does not start within two (2) years of the issue date of this Permit; or

b) The development is not completed within four (4) years of the issue date of this Permit.

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

* Mr S. Hunt, Traffic Engineer, Grogan Richards Pty. Ltd.

* Ms K. Jordan, Landscape Architect, Contour Design Australia Pty Ltd

* Mr P. Jewell, Town Planner, Jewell Partnership Pty Ltd

Mr B. Condon on behalf of B. & B. Condon and E. Shelton

Mr J. Miller, Mr R. Ring and Ms B. McKelvie appeared on their own behalf

1 Application No. PP03/00538 was lodged with Boroondara City Council on 26 August 2002 to construct a three storey office building at No. 1155 Toorak Road Camberwell.

2 The Tribunal was provided with comprehensive details of the site, the surrounding area and the relevant planning controls and it is not necessary to repeat them other than to note that the proposed site is vacant and is in the midst of the Hartwell Shopping Centre. The site is close to train stations at Hartwell and Burwood and is on a tram line. The site is near to the point at which Summerhill Road terminates at Toorak Road.

3 The proposed office building will be on two levels sitting above a ground level car park. No building setbacks are provided to the west or south (street), but a 1.5m landscaped setback is proposed to the rear (north) and there is to be a landscaped setback to the east aligning with a drainage reserve. Access is to be gained via a widened 6.4m lane to the east of the review site off Toorak Road.

4 The property is within a Business 2 Zone under the Boroondara Planning Scheme. While a permit is not required for the office use, it is required for buildings and works. No overlays affect the site. A range of state and local policies affect the site and these are discussed in detail below.

5 When the application was advertised, four objections were received noting in summary and among other things:

6 Council did not make a determination within the required time and so an application for review against "failure" was lodged. Council later advised the Tribunal that had they been in a position to determine the application, they would have refused it on the following grounds:

1. The scale, bulk and height of the proposed building is excessive and would have a dominating impact upon the adjoining residential area to the north.

2. The proposed development fails to achieve an appropriate interface with the Hartwell Shopping Centre having regard to the provision of car parking at ground floor level.

3. The proposed number of car parking spaces is insufficient to meet the likely parking requirements of the use and fails to provide the number of car spaces required in Clause 52.06 of the Boroondara Planning Scheme.

4. The proposal fails to comply with the objectives and performance measures of Clause 22.08 (office use and development policy) of the Boroondara Planning Scheme.

5. The development does not provide adequate access to the site from Toorak Road.

7 Mr Bisset suggested that there were four issues in this application which needed to be addressed being:

8 This list more or less conforms with the issues raised by Council and the neighbours and so I will address each of them. However, I wish to reverse the order and initially address the "use" issue as I feel that the outcome of that discussion inevitably has consequences for the more detailed analysis required of access, parking and building design.

9 While Mr Bisset essentially confined his comments on "use" to that of the display area at ground floor and its interface with Toorak Road, I feel that there is much in the strategic direction of the Boroondara Planning Scheme which actively supports the proposal and this cannot be just taken for granted. I believe the Planning Scheme, read in its entirety, strongly supports the grant of a permit in some shape or form for offices on this site.

10 The Boroondara MSS (at Clause 21.08) invites increased office activity in the municipality noting:

Trends indicate an up-swing in the suburban office market. Much of the existing free-standing office development has taken place in areas designated for light industrial use or on the fringes of certain shopping centres. Direction and encouragement needs to be given to new office development wishing to locate in the City, particularly in areas close to strip shopping centres.

* encourage office and other commercial development within the city

* accommodate new office development in designated areas within the city.

12 Council will implement these objectives and strategies by (among other things):

* Apply the Business 2 Zone to accommodate office and other commercial development in commercial centres which no longer have a retail role.

* Applying the Office Use and Development Policy at Clause 22.08 to ensure that office development is appropriately designed and located

13 Elsewhere Clause 22.10 (Retail Centre Policy) makes it clear that the future role of Hartwell is as a "Business Support Centre and Office Centre in addition to convenience retail role" while including the Hartwell Shopping Centre Structure Plan 1992 as a "reference document".

14 Matters of direct relevance to this application in the Hartwell Shopping Centre Structure Plan include (but are not limited to):

* maintain existing building alignment with no street setback

* widen the laneway accessway east of the site to 6m

* require a car parking rate of 3 spaces per 100m2 CLFA

* improve pedestrian links connecting Summerhill Road through the site and to the pedestrian laneway adjacent to the rail line

* create a buffer between residential and commercial land use

* plant the weeping lilly pilly to create a dense screen between residential and commercial areas

* consideration be given to having public art in some premises to ensure that their visual function is optimised

15 The Office Use and Development Policy at Clause 22.08 has a relevant objective which is:

To ensure that the form of new office development contributes in a positive manner to the overall character and amenity of commercial and surrounding residential areas

16 The matter of the interface with the surrounding residential areas is discussed below but I am more than satisfied that in a "use" sense, an office building is to be welcomed into Hartwell and that its "development" form is to contribute to the commercial characteristics which are already evident in the centre. I believe that this proposal meets both these objectives especially as it is of a height which is similar to its neighbours on Toorak Road and of a similar scale and form to other new office buildings east of the rail line. That the building may be marginally higher on Toorak Road than its neighbours is of no consequence in my view. I believe the height and bulk issues are confined to the rear interface.

17 Other than parking, most of the submissions centred on the design of the building and how it treated its interface to all of its abuttals. Concerns were expressed about the front setback; the rear setback; the bland west wall; the height of the buildings; overlooking to the north; adequacy of landscaping; and building bulk especially when viewed from the Condon and McKelvie properties.

18 I conducted an inspection of the general area on two occasions and I viewed the site from the rear of the Condon property in the presence of the other parties.

19 I refer back to my earlier comments about the appropriateness of using this site for a commercial building and the inevitability of such an outcome given the zoning of the land and the strategic direction in the MSS. I agree with Mr Bisset that in an interface situation such as this there are competing objectives on either side of the residential / commercial divide and that a proper planning outcome is one which balances those competing objectives taking into account all of the opportunities and constraints of the site and its neighbours. Inevitably compromises will have to be made to reach an acceptable outcome which satisfies those competing objectives. The commercial site cannot ignore that they have a residential abuttal; nor can a residential property expect the sort of residential amenity one would anticipate in an area wholly zoned for residential purposes.

20 I approach the task therefore of the interface issue not with a view to achieving a perfect residential amenity outcome; nor a perfect commercial outcome. If it were that simple I could favour one over the other and (say) allow a box like office building on the boundary with extensive windows as might be found in a wholly commercial area. Or I could favour a one storey commercial building well offset from the boundary with a "forest" as a buffer in deference to residential amenity. Rather, I must look for a balance which satisfies the "reasonable expectations" of all parties.

21 In my opinion the submitted building is already very close to that acceptable balance and with some minor modifications will sit comfortably in its interface context.

22 It is worth detailing a few of the positive features of the design. Firstly, I regard it as a significant feature of the site that there is to be a large open area east of the building dominated by the extensive mature vegetation. While I appreciate that this has come about as a consequence of the existence of a drainage reserve I regard it as a "plus" in a design sense. The Toorak Road user, either on foot, in a car or on a tram will benefit from a much softer building mass than typically occurs in a commercial strip. The upgraded pedestrian walking path, the reinstated Toorak Road footpath and the proposed plantings on the footpath at the front of the building will all conspire to provide a net community benefit at the Toorak Road interface.

23 I much prefer the proposal to have small display areas at the front of the building onto Toorak Road in preference to a grill with car parking behind. I am attracted by the "public art" concept within these display areas as suggested in the Hartwell Structure Plan and I note it is a trend which has taken hold in the Melbourne CBD with fairly regular change to keep the art "fresh". However, I wouldn't be opposed to an occupant of the office building (say an architect's practice upstairs) using the display area to, in effect, advertise their wares. I will leave it to Council to manage this.

24 As to the western edge, I note that the proposed zero setback is typical of a business area and is an economically efficient outcome that does not waste valuable business land. I also note Mr Miller's comments about him already thinking of redevelopment options for No. 1149 Toorak Road. Conceivably any redevelopment on his site would similarly try to use the land in the most economically efficient manner. In the short term he is worried about the blandness of the wall and its impacts on worker amenity in this building. While I suspect this will be more of a short term issue, I agree with his suggestion that there should be a condition requiring an acceptable paint colour and treatment of this wall.

25 This brings me to the northern interface, which occupied most of the discussions during the hearing and upon which both Mr Jewell and Ms Jordan were extensively questioned.

26 I firstly note that I agree in principle with Mr Jewell that the obligation to buffer or screen is not a one-way process, especially at a residential / commercial interface. There is some obligation on both sides of the fence to provide as smooth a transition as possible The applicants have offered a 1.5m setback and curtain of landscaping. At present, the neighbours in Bright Street have little to soften the transition on their sites with no landscaping, fairly low fences and a quite stark and dominating vantage over the subject site. I do feel that to some extent the "ball is in the court" of No. 12 and 14 Bright Street to assist in defending their properties from the inevitable development which will occur on the commercial properties to the south. This may take the form of landscaping, or a higher fence or mounding or, as was mooted for the Condon property, a rear garage. Either way, these properties cannot expect to have a residential outlook to the south and if they do want to shield themselves it is partly as much up to them as it is to the applicant.

27 That said, I also agree that the applicant clearly has a role to play on his side of the fence and I note that, in lieu of a blank solid wall on the boundary as is common in commercial zones, the applicant has suggested the regime of setback and landscaping referred to above.

28 The options before me were the proposed 1.5m setback of the applicant; the suggested 3.0m setback of the Council; and the preferred 5.0m offset of Mr Condon. At the end of the hearing Mr Bisset suggested that there was scope to indent the upper level by another 1.5m thereby providing a three metre offset for the top floor only.

29 First of all, I am satisfied on the evidence of Ms Jordan that the proposed species of trees on this northern boundary are appropriate and will grow in time to a sufficient height to help soften the impact of the northern wall. I also note that the proposed species as selected are specified in the Hartwell Structure Plan. The objective in the planting regime is not so much to completely cover the wall as it is to just provide a softer screen to buffer the bulk of the wall. I think the objective has been achieved but I note that for it to be sustainable a proper management plan must be prepared and implemented on an on-going basis. In the event of a permit issuing, I think it is critical to include this as a condition of permit.

30 I therefore see no need for an offset of either 3m or 5m as they would create pockets of unusable space for no real purpose that couldn't be achieved in 1.5m.

31 The offer of the upper floor indentation needs to be considered in the context of bulk more than landscaping as it introduces a bit more articulation and variety into the south elevation. I believe that the proposed design is to be commended on the manner in which this side of the building presents it to its neighbours. I have seen too many tilt slab walls on commercial boundaries not to be impressed with a rear facade which offers windows, timber screens, architectural features, protruding recessive elements, as well as landscaping.

32 I am therefore reluctant to ask for a further recessed element for the sake of it, or to compromise for compromise's sake. However, I did form the view when standing in the rear of No. 12 Bright Street that the more articulation that can be provided the lesser the bulk of the building will be notwithstanding my views that both No. 12 and 14 Bright Street probably need to be a bit more "defensive" on their own property. In the end, I support the offer of the permit applicant to recess this upper level floor (only) by another 1.5m.

33 The only other design issue concerned overlooking and I am satisfied that the intention is to limit this to the north by use of screens on all windows. Mr Jewell agreed with the suggestion of Mr. Condon to extend screening to those north facing windows without screens and I support this as a condition of permit. With the screen in place and the distances to the dwellings in excess of 13m, and in the context of a commercial / residential interface, I am satisfied that the privacy of Nos. 12 and 14 Bright Street has been safeguarded.

34 I conclude that the building design responds to its context, its site constraints and its neighbours and is an appropriate design especially on its transitional elevation at the rear. The design wall will be further improved by an extra 1.5m recess at the upper level.

35 This aspect of the proposal has been contentious all along but as a result of discussions through the process it is clear that the two most relevant authorities on this issue, being Council and VicRoads, are now happy with the proposed access arrangements.

36 Essentially, traffic will access the site via Toorak Road through the same laneway which currently provides entry and egress to at least 17 car spaces on or near some "VicTrack" land adjoining the rail line. Under the former regime of the medical centre there were two access points quite close together off Toorak Road, one into the site and one into the laneway. This is to be rationalised to the one access point. Moreover, this access point and access way is to be widened so as to provide a 6.4m wide "road" enabling two way access along its length up to the point where the entrance to the subject site is located. In my opinion, this is a vast improvement on what exists and will enable an increased level of two way access on the "road". I agree with Mr Bisset that clearly the lane is being extensively used and this has obviously occurred in a substandard manner. The proposal will improve that situation.

37 I am very conscious of the concerns expressed by the neighbours about difficulties gaining access from Toorak Road into the "road" or leaving the road, especially by way of a right hand turn manoeuvre. Once again it is evident that these manoeuvres occur now and, in many respects, the nearby lights at Toorak and Summerhill assist in slowing and stopping traffic to create gaps for these manoeuvres to take place. I also accept the evidence of Mr Hunt that if such turns are proving difficult or lengthy, then regular attendees at the site will simply adjust their driving patterns to find an alternate route to the new offices. While I understand the concerns of neighbours, I feel that the proposal actually improves the substandard access arrangement and removes a second entry point at Toorak Road enabling a more rationalised entry / exit regime.

38 I further note that the proposed numbers of vehicle movements generated by the office building will not, of itself, cause problems entering and leaving Toorak Road. On the available evidence, only about 20 vehicles are likely to enter or leave at peak hour and typically these will be spaced. Even if they are not, and a queue forms in the lane awaiting exit to Toorak Road, this is no different to what occurs in countless streets and driveways at peak times. This proposal has the advantage of accommodating that queue in its own laneway without impact on any other traffic patterns.

39 I finally note that while there may continue to be use made of the rear laneway, the proposed access arrangements make for a more convenient and accessible arrangement than has ever been the case.

40 I conclude that as the proposed access arrangements have the approval of VicRoads and Council, they are an appropriate response to ensuring safe and convenient access into and out of the subject site.

41 The submitted plans indicate a provision of 37 on-site car parking spaces all in a ground level car park accessible from the eastern accessway. There was considerable discussion by all parties about the adequacy of the on site car parking.

42 Council submitted that the proposal was deficient to the tune of 19 spaces and that, pursuant to Clause 52.06 of the Boroondara Planning Scheme, 58 spaces were required at a rate of 3.5 spaces per 100m2 of net floor area. Council acknowledged that they had a local policy at Clause 22.03 requiring a modified rate of only 3 spaces per 100m2 (nfa) but they relied on the comments of their traffic engineers who referred to two recent examples of office buildings that, in their view, generate car parking about 4.5 spaces per 100m2 (nfa). Council submitted that long term parking availability in the area (on and off street) was tight and that, coupled with the on-site shortfall, there would be overspill parking impacts on the area.

43 The resident objectors expressed concerns that this overspill would end up in residential streets outside their homes, while Mr Miller and Mr Ring were concerned that, with cramped parking on their own site, their employees would no longer be able to use the vacant subject site for car parking. There was also some discussion about loss of spaces on the VicTrack land although it is clear that this application has no impact on that at all.

44 The applicant called traffic and parking evidence and submitted that only 41 spaces are required (not 58) meaning there is a shortfall of only 4 spaces. The 37 spaces which are provided are all long term spaces and these are provided on site. The 4 short term spaces are not nearly as critical especially as Council noted in its officer report that, based on an August 2003 Council survey, there is two hour parking available in the public car park areas south of Toorak Road for visitors to the office throughout the day. In any event, the applicant submitted that Clause 52.06 enables car parking to be reduced or even waived based on considerations including access to public transport which is one of the attributes of this site.

45 The first observation I would make is to express some surprise at the advice of Council's own traffic engineer who relies on the Planning Scheme rate of 3.5 spaces per 100m2 and ignores Council's local policy rate of 3 spaces per 100m2 (at Clause 22.03). Council has bothered to inset a new parking rate into its Scheme in preference to the statewide provision, yet it has been content to selectively ignore it in this case which I find surprising. I place no weight at all on Council's spot surveys of other premises as no real details were provided and certainly no evidence was called. If Council wishes to change its policy it must engage in a proper process and have it tested before it becomes part of the Scheme.

46 The second observation I make is of more relevance in that the real rate to be applied is that at Clause 22.03 and not Clause 52.06. I was referred to and rely on the recent decision in Lordan v Boroondara City Council (P2433/2002), where the Tribunal commented:

The parties agreed on the car parking rate which should be applied to the proposed development. Pursuant to Clause 52.06-1 the rate set out at the table to Clause 52.06-5 (3.5 spaces per 100m2 of floor area) only applies for uses not covered by "another clause". Accordingly, the rate set out at Clause 22.03 of 3 spaces per 100m2 of floor area is applicable.

The issue then becomes one of what dispensation guidelines should be considered.

On that matter Mr Stewart noted that in contrast to the car parking rate provisions of Clause 52.06-1 there is no corresponding provision specifying that "another clause" relating to dispensation guidelines can prevail. Mr Stewart argued that as the power to waiver the parking requirement resides in Clause 52.02, and not in the local policy, regard must be had to the decision guidelines at Clause 52.06-1. However, he submitted that in exercising discretion the decision-maker can be guided by the additional matters in a local policy.

I am faced with a different situation. There are differently worded dispensation guidelines in Cluse 52.06-1 and in Table 3 to Clause 22.03-3. Although the provisions of clause 22.03 prevail in relation to the applicable parking rate I accept that the dispensation guidelines of Clause 52.06-1 remain relevant.

47 I conclude that only 41 spaces are required (being 3 per 100m2 nfa) and I agree with Mr Bisset that there is no authority for me to require any more than that. I also note that, based on the modification I have made to the upper level there will be a reduction in floor area which means that the requirement of 41 spaces will be reduced by about one or two. I finally note, and agree with Mr Jewell, that the proposed loading bay in the car park is a bit of luxury for a small office building and that this area could perhaps accommodate another one or two car spaces. This means that there is a shortfall of maybe only one or two spaces for the whole building.

48 I am satisfied that there is ample justification for this minor reduction pursuant to the criteria at Clause 52.06 especially in relation to availability of public transport, availability of off-street parking nearby and the fact that the shortfall is short stay parking rather than long term. I will require as a condition of permit that a total of 39 spaces be provided on site and these must be shown on the amended plan. With detailed design, some of the loading bay may be able to be kept but I will not require that as a condition.

49 While I am sympathetic with the views of the objectors on this issue, it needs to be borne in mind that, unlike offices nearby, the permit applicant is proposing to contain all car parking on site. The fact that others without on-site parking may have fortuitously benefited from using this undeveloped site for their parking needs should not be a reason to deny an application which supplies its requirement on site. I have inspected the wider area and note that unlike many such centres there has been a commitment by this Council to provide consolidated off-street parking in Hartwell and such provision eases the pressures for on-street parking especially in residential areas.

50 I conclude, that subject to the provision of 39 on-site spaces, the application provides sufficient car parking.

51 I support the application, subject to some modifications, as I believe that it is clearly consistent with the strategic direction in the Planning Scheme and that it provides an appropriate built form response at the commercial / residential interface. I further believe that the modified access arrangements are an improvement on what used to be there and what was originally proposed. I am finally satisfied that a sufficient amount of on-site parking has been provided.

52 It is directed that a conditional permit be issued.