Burke Vue Pty Ltd v Stonnington CC (Includes Summary) (Red Dot) [2015] VCAT 1723

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

Issue TP15, Drawings DA1.01, DA1.02, DA2.01, DA2.02, DA2.03, DA2.04, DA2.05, DA3.01, DA3.02, DA3.03, DA4.1, DA4.2, DA4.3, DA.4.4, DA4.5, DA4.6, DA5.1, DA6.1, DA6.2, DA6.3 and DA6.4

1. In permit application 0701/14 a permit is granted and directed to be issued for the land at 233 Burke Road, Glen Iris in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • Construction of a multi-dwelling development in the General Residential Zone 7 (GRZ7) and alteration of access to a road in a Road Zone, Category 1.
2. The Responsible Authority is not required to reimburse fees paid by the permit applicant.

Mr Stuart Morris QC, instructed by Minter Ellison Lawyers. He called evidence from the following witnesses:

• Mr William Bromhead, Town Planner of Ratio: Consultants Pty Ltd.
• Mr John Patrick, Landscape Architect of John Patrick Pty Ltd.

Written evidence was also provided by Mr Russell Fairlie, Traffic Engineer of Ratio: Consultants Pty Ltd but in the absence of any traffic issues raised by parties or the Tribunal he was not required to attend the hearing.

Mr David Vorchheimer, Solicitor of HWL Ebsworth Lawyers. He called evidence from the following witness:

• Mr Alastair Campbell, Urban Designer of Hansen Partnership Pty Ltd.

Construction of three storey building containing 25 dwellings over basement parking for 35 vehicles.

Application under Section 79 of the Planning and Environment Act 1987 to review the failure to grant a permit within the prescribed time.[1]

Cl. 32.08-4 (two or more dwellings on a lot in GRZ7).

Cl. 52.29 (alteration of access to a road in a Road Zone Category 1)

Clauses 9, 10, 11, 15, 16, 18, 21.03, 21.04, 21.05, 21.06, 21.07, 21.08, 22.05, 22.23, 52.06, 52.34, 55 and 65.

The review site is located on the western side of Burke Road approximately midway between Malvern Road to the north and High Street to the south. It has a frontage of 25.6 metres, a depth of 73.15 metres and an area of 1,784 square metres.

An unconstructed laneway abuts the western boundary and terminates as a splay at the south west corner of the site. A pedestrian gate provides access to the laneway.

The review site contains a large double storey, Edwardian era dwelling with a pitched tiled roof. Adjoining sites to the north and south are also developed for single dwellings.

I undertook an inspection of the review site, surrounding properties and the locality on the afternoon of the third day of the hearing.

Global Alpha Group Pty Ltd v Boroondara CC [2013] VCAT 1929.

A18 Pty Ltd v Stonnington CC [2014] VCAT 1015.

1. The permit application considered by Council was for a three storey apartment style building containing 26 dwellings. Plans substituted at the commencement of the hearing have reduced the extent of the top floor footprint by approximately 35%, increased some boundary setbacks, and reduced the number of dwellings by one to 25. The building is still an apartment style with basement parking for 35 vehicles - a number that exceeds the Clause 52.06 rate by one space.
2. Although Council failed to make a decision within the prescribed time, it has since decided to oppose the application on the following four grounds:
   • The form and presentation of the building to Burke Road is dominant in the streetscape and is unsympathetic with the existing neighbourhood character.
   • The proposed development will result in unreasonable amenity impacts to adjoining dwellings, through visual bulk.
   • The proposed development provides an unsatisfactory landscaping response for the site and the neighbourhood character.
   • The proposed design detailing and building materials do not respect the design detailing and building materials in the surrounding area.
3. A fifth reason for opposing the application (removal of two mature trees along the western boundary) has been addressed as a result of changes shown on the substituted plans and is no longer in contention.
4. A number of residents living in the area lodged statements of grounds. Most were represented by Mr Vorchheimer. In addition, Mr and Mrs McLean who live to the rear of the site in Scott Grove, attended and made a separate submission. In large part residents agree with Council's reasons for opposing the proposal, although submissions had a greater focus on direct amenity impacts to the adjoining properties.
5. The permit applicant rejects criticisms raised by Council and neighbours. Mr Morris QC submits that:
   • The proposal is consistent with State and local planning policies, particularly local housing policy directing 2-3 storey multi-unit development to lots capable of accommodating increased densities.
   • The proposal is consistent with the GRZ7 and designation within an incremental change area but is at the upper end of the incremental change area and closer to the substantial change area as set out in the Strategic Framework Plan and MSS.
   • The building envelope is within the prescribed parameters contained in the Planning Scheme and Clause 55.
   • The proposal adequately responds to the surrounding properties because of the zoning of the land as GRZ, the ability to soften the visual impact because the landscaping plan retains and complements the two large trees on the west boundary.
   • The proposal is a tempered development that strikes the right balance between existing and emerging neighbourhood character.
   • The proposal is consistent with a number of recent Tribunal decisions regarding three storey developments within an incremental change area zoned GRZ.
   • The site has favourable characteristics including frontage to a Road Zone Category 1, good access to public transport and being a short walk to a neighbourhood activity centre.
6. I note that car parking complies with the rates set out in Clause 52.06 and that no party sought to raise parking or traffic issues at the hearing. I am also satisfied that parking and access arrangements are acceptable.

AMENDMENT C175 HAS BEEN GAZETTED SINCE THE HEARING

1. Amendment C175 was gazetted on Thursday 17 September 2015. It introduces a new Neighbourhood Character Policy at Clause 22.23 and revises Clause 21.05, 21.06 and 21.09 to reflect changes to the neighbourhood character policy. The Amendment was adopted with the review site and other sites fronting Burke Road being partly in Garden Suburban Precinct 3 (GS3) and partly in Garden Suburban Precinct 4 (GS4). There was general agreement at the hearing that the precinct boundary should not transect properties and that the Neighbourhood Character Precinct map attached to Clause 22.23 would be amended prior to gazettal to include the whole of the review site in just one precinct. That has not occurred and the western part of the site remains in GS3 and the eastern portion in GS4.
2. Although Amendment C175 had not been gazetted at the time of the hearing, parties made submissions on the proposed changes and indicated that they did not wish to make further submissions following gazettal of the Amendment and I have proceeded on the basis of the material put forward at the hearing and included in Amendment C175.

WHAT DOES THE PLANNING SCHEME SAY ABOUT ADDITIONAL HOUSING IN THIS LOCATION?

1. The land is in a General Residential Zone 7 (GRZ7). No overlays are in place to protect valued character, heritage attributes or guide future design and built form. The site is within easy walking distance of the Gardner Village Neighbourhood Activity Centre and train station located approximately 300-400 metres north of the site. A tram route traverses Burke Road and High Street north of the site and provides access to central Melbourne and Camberwell. Other facilities such as schools and recreation facilities are also within proximity and the St Roche's Catholic School and Church are located directly opposite the site on the east side of Burke Road.
2. State policy encourages an intensification/consolidation of residential development in well serviced urban areas close to public transport, schools, parks, shops, sources of employment and a range of other urban facilities.
3. Clause 10 of the Planning Scheme requires consideration, where relevant, of Plan Melbourne. Plan Melbourne identifies five metropolitan sub-regions and the review site is within the Eastern Subregion. The projected future population growth to 2031 for this subregion is between 150,000 and 200,000 people with a dwelling requirement in the same time period of 80,000 to 110,000 dwellings.[3] There is acknowledgement that up to two thirds (960,000) of the anticipated 1.57 million new dwellings required by 2051 will be provided within established areas.[4] It also introduces the concept of the 20-minute neighbourhood. Direction 2.2 suggests locating medium and higher density development near services, jobs and public transport. However, there is a clear intention to focus medium and higher density development in specified locations and to protect other areas from such forms of more intensive development.
4. In State policy at Clause 11.04-2 there is a clear intention that more intensive development be directed to land in and around activity centres and along and near the Principal Public Transport Network (PPTN). It is also policy to encourage higher density housing in and around Neighbourhood Activity Centres that is designed to fit the context and enhance the character of the area while providing a variety of housing options for different types of households.
5. State policy for built environment and heritage at Clause 15 states that, amongst other matters, planning should ensure all new land use and development appropriately responds to its landscape, valued built form and cultural context, and protect places and sites with significant heritage, architectural, aesthetic, scientific and cultural value. It also seeks to create quality built environments that support the social, cultural, economic and environmental wellbeing of our communities, cities and towns.
6. Clauses 16 and 18 reinforce the need to locate new housing in or close to activity centres and close to or on the PPTN. Clause 16.01-3 is policy for strategic redevelopment sites and lists six criteria by which such sites can be identified. As relevant to this application it includes:
   • Able to provide 10 or more dwelling units, close to activity centres and well served by public transport.
7. Clause 16.01 also refers to housing diversity and housing affordability. Clause 18.01-2 includes a strategy to encourage higher land use densities and mixed use developments near railway stations, major bus terminals, transport interchanges, tramways and principal bus routes.
8. Local policies at Clauses 21.03 (Vision), 21.05 (Housing) and 21.06 (Built Environment and Heritage) provide guidance about the outcomes Council is seeking to achieve with respect to medium density housing and neighbourhood character.
9. The Vision for Housing set out in Clause 21.03-2 is that higher density development is directed to locations with the highest accessibility to public transport and services (being sites in and beside activity centres, beside main roads with trams and Smart bus routes and beside railway stations). Medium density development is accepted in the remaining residential hinterland, consistent with retaining the low rise character and high levels of amenity of the City's residential precincts. It is also recognised that the City has increased housing capacity that is affordable, accessible and includes diverse housing types to meet the changing needs of current and future residents. Clause 21.03-3 reiterates that the preferred locations for higher density housing is on land in and beside activity centres and mixed use areas, and abutting the Principal Public Transport Network (PPTN).
10. As is now becoming common across municipalities, Stonnington has identified three change areas for different intensities of housing development. Substantial Change Areas are to be the focus of the majority of new housing development and is land with the highest accessibility to both activity centres and the PPTN. The locational characteristics of such areas are listed under Strategy 1.1 in Clause 21.05.2.
11. The remaining residential areas, other than land included in Heritage and Neighbourhood Character Overlays, are identified as being Incremental Change areas. The review site and surrounding area is therefore within an Incremental Change Area where there is an intention to direct multi-unit development of 2 to 3 storeys on lots capable of accommodating increased density.
12. Areas affected by Heritage and Neighbourhood Character Overlays are within Minimal Change Areas.
13. Providing housing diversity and choice to cater for the diverse housing needs of the existing and future population is also a theme of local policy as set out in Clause 21.05-4.
14. Local policy for Built Environment and Heritage is contained at Clause 21.06. One of the key issues is maintaining a clear distinction between the development outcomes in the locations for higher density development and the lower density residential hinterland. It includes objectives and related strategies that seek:
    • To protect and reinforce the key elements of the City's overall urban structure and character.
    • To repair and reinforce the high quality landscape character of the City.
    • To achieve high standards of amenity within new developments, and with adjoining developments.

• To protect and enhance the varied, distinctive and valued character elements of residential neighbourhoods across the City of Stonnington.
• Retain the low rise character of the majority of the incremental and minimal change areas in the City.
• Provide for medium density (2-3 storey) development provided the development respects the preferred character of the precinct.

1. Having regard to the site's locational attributes, the zoning of the land as General Residential 7, the absence of built form overlays and the directions contained in State and local policy, I consider there is significant support for an increase in residential development on the review site. Although in an Incremental Change Area, local policy suggests that such areas can accommodate multi-unit development of 2 to 3 storeys in height on lots capable of accommodating increased density. I consider that the review site can, in principle, support such an increased density because of its relatively large size, location on a main road, proximity to a tram route and train station, and the mixed scale of development in the locality.
2. The General Residential Zone applied to the review site and surrounding land reinforces the suitability of the area for increased residential density. One of the purposes of the General Residential Zone is to provide for a diversity of housing types and moderate housing growth in locations offering good access to services and transport.
3. The Council has made a deliberate decision to apply the General Residential Zone 7 (GRZ7) to the spine of properties along Burke Road and the General Residential Zone 10 (GRZ10) to properties to the east and west of that spine.[5] Although the zone objectives for GRZ7 and GRZ10 are the same, GRZ7 allows buildings up to 10.5 metres in height while the GRZ10 only allows buildings up to 9 metres in height. Both are in the Incremental Change Area so I can understand why Mr Morris submits that the review site (and other land in the GRZ7) is at the upper end of the Incremental Change Area given this difference in maximum height.
4. The General Residential Zone purposes also require implementation of neighbourhood character policy and adopted neighbourhood character guidelines.
5. The Neighbourhood Character Policy introduced by Amendment C175 is at Clause 22.23. As previously noted, the review site is partly within Garden Suburban Precinct 3 (GS3) and partly within Garden Suburban Precinct 4 (GS4). The statements of preferred neighbourhood character are almost identical with the key differences being the reference to Victorian era buildings and one-two storey scale and design detail of the older dwellings in the GS3 precinct. With the exception of references to Victorian era buildings, the design guidelines for both precincts appear to be identical and it seems superfluous to have two separate precincts without any important distinguishing features. I have therefore only assessed the development against one set of precinct guidelines.
6. To varying degrees of detail, submissions and evidence commented about these design guidelines and assessed how well the proposal had responded to each of the design objectives, design responses and things to avoid. The seven objectives for GS4 seek:
   • To encourage the retention of intact, older dwellings that contribute to the character of the area.
   • To ensure new buildings and extensions do not dominate the streetscape
   • To encourage a high quality of building detailing that references, without mimicking, the details of buildings in the area.
   • To maintain and reinforce the rhythm of spacing between and around buildings.
   • To maintain and strengthen the garden settings of buildings and the tree canopy of the neighbourhood.
   • To prevent the loss of front garden space and the dominance of car parking structures.
   • To ensure fences complement the predominant style of front boundary treatment in the street and retain views to dwellings and gardens.
7. Design responses as relevant are to:
   • For sites in other areas (such as the review site), buildings should reflect the predominant 1-2 storey scale of the streetscape.
   • New buildings should respond to the streetscape character in an innovative and contemporary manner.
   • Articulate the facades of buildings with the use of recesses, verandahs, balconies, window openings and variations in materials and colours.
   • Roof forms should incorporate eaves.
   • Provide adequate space between and around buildings to accommodate vegetation.
   • Include canopy trees and shrubs in landscape plans.
   • Retain established or mature trees where possible and provide for the planting of new canopy trees.
   • Include planting around the perimeter of the site to strengthen the garden setting
   • Setback basements from all property boundaries to allow for in-ground planting.
   • Car parking structures should be located behind the front facade of the dwelling.
   • Hard paving for car parking should be minimised and permeable surfaces used for hard paving.
   • Provide either no front fence or low, open style front fence constructed of materials appropriate to the dwelling style and era.
   • On main road higher front fences may be constructed where they provide approximately 20% permeability and recesses for landscaping.
8. Things to avoid include:
   • New developments and extensions that are visually bulky.
   • Development that is out of scale with the streetscape.
   • Blank walls and unarticulated facades.
   • Lack of eaves.
   • Loss of established vegetation.
   • High site coverage, including at basement level that prevents adequate landscaping opportunities.
   • Additional crossovers.
   • Car parking structures in the front setback area, excessive areas of paving and driveways.
   • High solid front fencing.
9. I accept there can be legitimate differences of opinion as to how well a development satisfies the preferred neighbourhood character elements, design objectives, design responses and things to avoid. However it is my assessment that the proposal either largely achieves or does not undermine the character outcomes sought for the following reasons:
   • The building is of 2 and 3 storeys. Although this is one storey higher than the adjoining 2 storey buildings at the rear and at 231 Burke Road, I consider it is respectful of the general scale of buildings including the church opposite and the high pitched roofs of the single and double storey dwellings in the area. This is not an area of modestly sized single storey dwellings found in Prahran and other closely settled parts of the municipality. I agree with Member Naylor's observation in A18 Pty Ltd[6] that:

[11] ... Plan Melbourne contains an example of applying the GRZ in Greater Dandenong and explains that it is applied to incremental change areas where lower-scale, medium-density development of 2-3 storeys is preferred. Planning policy in this case says the site is in an incremental change area and GRZ7 provides for three storey development. Further, in an existing neighbourhood with generally 1-2 storey high buildings, a three storey building is an incremental change and a three storey apartment building can be described as moderate housing growth.

• The building is a contemporary design with well-articulated facades incorporating recesses, balconies, window openings and variations in materials and colours. Eaves are not incorporated, but can often appear at odds with a contemporarily designed building.
• The building is well setback from all boundaries without any boundary wall construction to allow for the planting of vegetation.
• The landscape plan includes canopy trees and shrubs and the two large and mature trees in the rear setback are being retained.
• The basement is set back from all boundaries, covers approximately 60% of the site and allows plenty of space for in-ground planting, including taller perimeter planting to strengthen the garden setting.
• Car parking is within a basement rather than within structures at ground level in front of the building.
• Hard paving is minimised with permeable/garden areas occupying approximately 30% of the site.
• The front fencing reflects the main road position but is not continuous across the whole frontage and includes landscaped recesses.

1. It is important to note when undertaking an assessment against these character guidelines, that the objectives and design responses are not mandatory controls. They are provided for guidance and there will be few, if any, developments that fully achieve all of them. However, it is my assessment that this proposal satisfies these guidelines to a high degree.
2. The main areas where there is clearly a difference of opinion between the parties is whether the new building reflects the predominant 1-2 storey scale of the streetscape and whether it has avoided being visually bulky.
3. I now address these issues, along with the site context and compliance with ResCode.

IS THE DESIGN RESPONSIVE TO THE SITE CONTEXT, TO CLAUSE 55 (RESCODE) AND IS IT ACCEPTABLE?

1. Clause 55 is specifically designed for the assessment of applications for medium density development of up to four storeys in height and provides guidance as to what is acceptable. Compliance with the relevant ResCode standard is deemed to be compliance with the related objective. Decision guidelines must also be considered. Where compliance with a numeric standard is not achieved then a judgement needs to be made as to whether the related objective has been met. Whilst it is not a question of ticking all, or most, of the ResCode boxes in order to receive a permit, compliance with all the numeric ResCode standards is a good indication that a proposal is not an overdevelopment and that off-site amenity impacts have been well managed.
2. Aside from neighbourhood character which I have already discussed, Council has not identified any of the ResCode requirements that are not met. These include standards B8 (site coverage), B17 (side and rear setbacks) and B18 (walls on boundaries) that are varied for the GRZ7. I also note that none of the expert witnesses or submissions identified technical non-compliances with ResCode requirements, particularly those dealing with off-site amenity impacts such as overlooking and overshadowing.
3. I have also observed in many decisions that compliance does not prevent any loss of amenity; rather it ensures that any loss is within what has been decided by the formulators of the planning scheme as reasonable. For example, the overshadowing standard (B21) only requires an assessment at the equinox. Overshadowing at the winter solstice is not assessed, although the loss of sunlight at that time of the year would have a much greater impact compared to spring and autumn. The same applies to amenity impacts (Clause 55.04) where compliance with standards such as B17 (side and rear setbacks) and B18 (walls on boundaries) ensure that impacts on the amenity of existing dwellings are limited to what has been deemed acceptable or reasonable.
4. One of the key concerns for neighbours is the visual bulk of a building that extends for approximately 55 metres deep into the rear part of the lot, with upper level walls setback as little as 3 metres and balconies setback at 2.5 metres. The concept of visual bulk and how it should be measured is a common issue in applications for medium density developments. It is often the case that the side and rear setback standard (B17) is used as a tool to measure visual bulk. However the side and rear setback objective (Clause 55.04-1) makes no reference to visual bulk but instead aims to ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings.
5. Parties made reference to the comment I made about the B17 standard in a decision for a three storey medium density development in Cotham Road Kew[7]:

[39] Inadequate side and rear setbacks and unreasonable visual bulk to neighbouring properties were other matters raised in submissions opposing the development. It is often argued that compliance with the B17 side and rear setback envelope demonstrates that a building does not cause unreasonable visual bulk when viewed from neighbouring properties. Nothing could be further from the truth since simple use of the B17 setback envelope takes no account of the length of wall being measured. For example, the visual impact of a short 10 metre length of wall achieving the B17 envelope is likely to be entirely different to a 40 to 50 metre length of wall, particularly where that length of wall occupies a significant length of boundary with neighbouring properties. In this case, the review site abuts six neighbouring properties and therefore has the potential to have a significant visual impact on the rear yards of these properties. The rear yards of Nos 143 and 147 Cotham Road and 3 Ermington Place are most affected as the upper levels of the building are recessed away from Nos 5 and 7 Ermington Place and No 1 Hillcrest Avenue. During the hearing Mr Scally produced a number of plans that further recessed the building from the northern end of the site. Whilst these represent an improved built form for neighbours at the northern end of the site, the building still extends for a considerable length along the site.

1. I do not resile from those comments which were borne out of my concern that submissions often simplistically argue that compliance with the B17 side and rear envelope demonstrates that a building does not cause unreasonable visual bulk. Although visual bulk is not specifically referred to in the objective or decision guidelines for standard B17, there is reference to limiting the impact on the amenity of adjoining dwellings. The decision guidelines refer to the impact on the amenity of habitable room windows and secluded private open space. Amenity is not defined but could reasonably include outlook given ResCode otherwise includes specific standards for walls on boundaries, daylight to existing windows, north facing windows, overshadowing and overlooking.
2. If we consider that outlook is an existing amenity, then the height, setbacks, length of a building, level of articulation, materials and colours will all impact on that outlook. Any new building on the review site, including a large double or triple storey dwelling that could be constructed without a planning permit, will occupy space and affect the existing outlook from habitable room windows and secluded open space in neighbouring properties. The proposed building will also affect the existing outlook and in order to assess whether the impacts are unacceptable I have separately considered the northern, southern and western interfaces.
3. My comments are focussed on the first and second levels as I consider that the ground level does have acceptable setbacks of at least 3 metres to walls and mostly generously sized private yards that, with the one exception of Dwelling 4, exceed the 40m2 ResCode standard B28. The basement is set back from all boundaries and with a coverage of 62.8% (including the basement ramp) is well below the 75% varied standard for the GRZ7. It allows plenty of scope for in-ground landscaping. Although the ground floor will introduce built form where none exists at present, there is nothing remarkable or unacceptable about single storey buildings extending well into the site. The existing, older style medium density developments to the north of No 235 Burke Road are examples of such built form.

1. No 231 Burke Road has been extended at the rear with two 'wings' extending either side of a large elevated patio. The southern wing contains the main family/living areas and looks out over an in-ground pool located close to the southern boundary. An open expansive lawn area is positioned north of the pool. A row of pear trees separates the pool from the southern boundary and provides screening of the rear yard from the review site. These trees are deciduous so the level of screening varies depending on the time of the year. Windows on the south side of the southern wing provide views towards the review site.
2. As I have already observed, construction of any built form would affect outlook from these windows and from the rear yard. However the primary outlook is westward and buildings on the review site are to one side of that view line. In addition, the retention of the two large trees along the back boundary of the review site and the setting back of the upper level, further reduces the extent of built form visible from the indoor living areas.
3. The most visible upper two floors of the proposed building extend approximately 15 metres past the rear wall of the dwelling at 235 Burke Road with a setback of 3 or 3.6 metres. The top floor, which at this point contains one dwelling with a west facing terrace, extends approximately 13 metres past the roof of the dwelling at 235 Burke Road with a wall set back from the boundary of between 4.6 and 6.6 metres. Whilst the setback may achieve the requisite B17 standard, my concern is with the length and height of built form that extends past the southern wing of the dwelling at 235 Burke Road, in a location adjacent to an in-ground swimming pool and associated sitting area.
4. Because of the combination of height, setbacks and length of wall, I consider that the building as now designed will appear visually dominating when observed from the rear yard of 235 Burke Road. I am particularly concerned about the impact of the third level extending well beyond the southern wing of the dwelling at 235 Burke Road.
5. Although not asked for by me or other parties, during the hearing Mr Morris QC tabled a diagram depicting an additional setback of the top level so that it more closely aligned with the rear pitched roof of 235 Burke Road. Whilst I consider this suggested change is a step in the right direction I have formed the view that the top floor needs to be set back so that none of the building, including the terrace, extends past the rear pitched roof next door.
6. Although it is a potentially significant change, I consider that it can be made by way of a permit condition rather than by requiring an entirely new application. The result will be a two storey section of the building that extends past the southern wing of the dwelling at 235 Burke Road at a height which approximates the height of the main ridge of that dwelling. I consider this strikes an acceptable balance between protecting the amenity of the dwelling and allowing increased residential development in accordance with the GRZ7 and planning policies.
7. In addition, I note that during discussions about the draft conditions it was suggested that the trees along the northern boundary of the review site in the vicinity of the pool be replaced by different evergreen trees of a similar height. I have included a condition requiring such replacement.

1. The southern boundary is potentially more problematic but for different reasons. In the case of 2 Hilary Grove it is because the dwelling and outdoor living areas are orientated north to directly face the review site. Although the dwelling is set back over 35 metres from the boundary there is an in-ground pool and associated facilities located in the north western corner of the site with an extensive and open lawn area between the dwelling and the pool and to the east of the pool enclosure.
2. A former tennis court fence covered with creeper has been retained along part of the northern boundary and additional trees have been planted along the boundary in the vicinity of the pool, around the pool enclosure and within the lawn area. The owners of 2 Hilary Grove have therefore sought to enhance their privacy by retaining and planting vegetation along the boundary with the review site.
3. The setbacks along the southern boundary are almost identical to those along the boundary with 235 Burke Road. My decision to require the top level to be set back in line with the dwelling at 235 Burke Road will result in the top floor being set back by an additional 13 metres. The additional setback means that the top level will only extend for a relatively short distance past the eastern boundary of 2 Hilary Grove. Whilst the new building in its truncated form will be clearly visible in views northwards from 2 Hilary Grove, the separation distance and planting on both sides of the boundary will, in time, filter views of the building. I also observe that overshadowing and overlooking meet the relevant ResCode standards.
4. The dwelling at No 231 Burke Road is potentially the most likely to be affected by the proposal despite the presence of a driveway and garage along the boundary with the review site. It was formally on a large rectangular lot similar to the review site. However as a result of a re-subdivision, the rear portion now forms part of the extensive yard at 2 Hilary Grove. What remains at the rear of the dwelling is a relatively small yard containing a lawn, an in-ground swimming pool and the garage/shed along the northern side adjacent the boundary with the review site. The lawn and pool are on the western side of the dwelling and have open views to the west.
5. I support the concept of concentrating the higher, three storey part of the building towards Burke Road where it is generally aligned with the higher pitched roofs of the dwellings at 231 and 235 Burke Road. Although on the south side it extends beyond the dwelling at 231 Burke Road, the outlook to the north is over the roof of the garage/shed and partly impacted by two trees next to the garage and a bushy palm tree in the north east corner of 2 Hilary Grove. However, I acknowledge that despite the absence of boundary walls and setbacks on the review site exceeding the ResCode standard B17, there is no doubt that the proposed building will dominate views to the north, which are at present open to the sky. However, as I have already observed, even a new double or triple storey dwelling meeting the 10.5 height limit could be constructed on the review site without a planning permit and it would equally dominate views to the north but without the same generous boundary setbacks and landscaping now proposed. On balance I consider the building as now designed does strike an appropriate balance between protecting the amenity of the dwelling at 231 Burke Road based on an assessment against Clause 55, whilst also providing for increased housing in an area where that is encouraged by planning policy and the GRZ7.
6. As with the northern boundary, the setting back of the basement from the boundary by approximately 3 metres allows for in-ground landscaping. Mr Patrick has proposed the planting of four 10 metre high pear trees and five 9-12 metre high magnolias and will provide vegetation along the boundary with 231 Burke Road. The planting of taller trees as proposed by Mr Patrick will ultimately filter views of the building but, as with all vegetation, it could take 5 or more years to start providing an effective cover. As with the trees along the northern boundary, a suggestion was made at the hearing that the trees proposed by Mr Patrick be replaced by different evergreen trees of a similar height. I have included a condition requiring such replacement.

1. Mr and Mrs McLean own 18 and 20 Scott Grove and reside at 20 Scott Grove to the north west of the review site. Their properties are behind but separated from the review site by a laneway that terminates at the south western corner of the review site. No 18 is in the shape of battle axe lot which is positioned partly behind the original dwelling at No 20. It contains a double storey block of flats which are accessed by a narrow driveway along the southern side of No 20.
2. The block of flats are set back from the laneway behind a tall paling fence and the setback area is used for services rather than secluded open space. Although some windows face the laneway and the review site, the proposed development will be largely screened by the two large trees which are along the rear boundary of the review site. Those trees were originally proposed to be removed which would have opened up direct views between the two properties. One of the good features of the substituted plans is the setting back of the proposed building from the rear boundary and the retention of those trees. Although the new building will be seen from the east facing windows in the block of flats, the separation distance and retention of vegetation means that, based on the standards contained in Clause 55, there will be no unreasonable overlooking or other adverse amenity impacts.
3. No 20 has a large rear yard that is positioned diagonally opposite the review site but separated by the laneway referred to previously. As with the block of flats, the separation distance and intervening vegetation means that there is an acceptable relationship with the review site.

1. In addition to these residential interfaces I also make comment about the presentation to Burke Road.
2. The building has a modern contemporary appearance setback 10 metres from the street frontage with ample space for taller canopy trees and other plantings. The basement is set back 7.255 metres from the front boundary and the basement ramp is positioned towards the northern side of the site and utilises an existing crossover that is to be enlarged. The building presents as a two storey building at ground and first floor levels, with the upper level set back slightly behind the lower levels. The facade incorporates balconies, terraces, framing elements and a mixture of materials and colours.
3. I note that Mr Campbell finds the set back to Burke Road, the vehicle access arrangements and a two storey form with recessive top level to be acceptable. However, I do not agree with him, or Council, that the proposal fails to achieve a sympathetic relationship with the existing residential buildings in the street. Although the two adjoining dwelling have a traditional appearance, Burke Road contains considerable variety in building styles including the church opposite and multiple medium density developments to the north of the dwelling at 235 Burke Road. I have already commented about neighbourhood character policy and guidelines in paragraphs 27 to 33 and my assessment that the proposal either largely achieves or does not undermine the character outcomes sought for this precinct.
4. Planning policy anticipates further change along Burke Road and neighbourhood character guidelines specifically ask that new buildings respond in an innovative and contemporary manner. I do not accept that such buildings must incorporate the pitched roof forms, incorporating hips and gables and prominent eaves characteristic of the GS4 precinct.
5. I consider that the proposal presents as a high quality contemporary design which will be a positive addition to the Burke Road streetscape.

1. I recognise that the new building will represent a very significant change along the boundaries with neighbouring properties. The building will occupy space that is currently unencumbered with built form and where neighbours have had views over an open backyard. Whilst neighbours may prefer to see a much more modest proposal, perhaps of two storeys with fewer dwellings and even greater boundary setbacks, I am not persuaded that the impacts on neighbours are unacceptable based on the parameters established by Clause 55. It is in an incremental change area where buildings of 2 to 3 storeys are to be expected and in a location where State and local policy says there should be an intensification of development.
2. My decision to further reduce the size of the top level by increasing the setback from the western boundary strikes an acceptable balance between protecting the amenity of adjoining properties whilst allowing a 2-3 storey apartment style building consistent with the change anticipated in both State and local planning policy.

1. Clause 10.04 of the Stonnington Planning Scheme requires me to endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development. I consider that on balance the proposal does achieve a net community benefit.
2. However, achieving that net community benefit does not mean that residents living next to or near the site will not experience considerable change.
3. The General Residential 7 zoning, absence of heritage and built form overlays and the strong policy support in the Planning Scheme for medium density housing in such locations, all provide support for a 2-3 storey medium density development of up to 10.5 metres in height. The proposal is highly compliant with the requirements of Clause 55 which is the main tool used to access applications for two or more dwellings on a lot.
4. In addition, the locational advantages of the site on a main road close to a tram route and train station, schools and other community facilities are all factors which are supportive of an intensification of residential development.
5. For the above reasons, I will therefore direct that a permit issue subject to the conditions set out in Appendix A.

1. In assessing Council's draft conditions I have made a number of changes to reflect matters discussed at the hearing and in my reasons.
2. I have also reworded the time limit condition to reflect the wording used by the Tribunal.

1. At the conclusion of the hearing, Mr Morris QC made application for the reimbursement of fees in accordance with section 115CA of the Victorian Civil and Administrative Tribunal Act 1998.
2. Section 115CA (Presumption of order for reimbursement of fees in certain planning matters) includes the following provisions:

(1) Subject to subsections (2) and (3), an applicant to the Tribunal under section 79 of the Planning and Environment Act 1987 is entitled to an order under section 115B that the responsible authority reimburse the applicant the whole of any fees paid by the applicant in the proceeding.

Section 79 of the Planning and Environment Act 1987 enables an applicant for a planning permit to apply to the Tribunal for review of a failure of the responsible authority to grant the permit within the prescribed time.

(2) If different fees are payable in a proceeding under section 79 of the Planning and Environment Act 1987 depending on an election made by the applicant, subsection (1) applies to entitle the applicant to an order for reimbursement of only the amount of the lowest of those fees.

If different fees are payable depending on the list of the Tribunal in which the applicant elects to have the proceeding entered, then if the applicant elects to have the proceeding entered in a list that attracts a higher fee, the applicant would only be entitled under subsection (1) to an order for reimbursement of the amount of the lowest of those fees.

(3) Subsection (1) does not apply if the responsible authority satisfies the Tribunal that there was reasonable justification for the responsible authority to fail to grant the permit before the application to the Tribunal, having regard to -

(a) the nature and complexity of the permit application; and

(b) the conduct of the applicant in relation to the permit application; and

(c) any other matter beyond the reasonable control of the responsible authority.

1. By order dated 14 September 2015, I provided the City of Stonnington with the opportunity to provide a written response to the oral application by the permit applicant. A detailed written response dated the 25 September 2015 was received from the City of Stonnington.
2. As also set out in my order, by letter dated 13 October 2015 the permit applicant submitted further comments reiterating the oral application made on the last day of hearing.

1. Council asks that a reimbursement of fees not be made and has provided comments based on the three matters set out in Section 115CA (3). I do not repeat those comments in full but in summary they are:
   1. The application is at the higher end of complexity because of the large site area, the size of the building proposed, the number of sensitive interfaces and location within an inner urban context.
   2. The physical setting with a series of potentially sensitive interfaces along the side and rear boundaries required an appreciation of each interface including views of built form from locations further away than the immediate context.
   3. The building has a complex footprint requiring a complex assessment against ResCode and the necessity for internal and external referrals.
   4. Consideration of the proposal involved a large number of negotiations and communications between Council and the permit applicant (these details including dates and actions were included in Council's submission).
   5. In particular, the applicant took 74 days to prepare and submit discussion plans following a consultation meeting with Councillors, Council staff and other parties.
   6. An application with seven or more objections is required to be considered at a full Council meeting. Of necessity there is a time delay in the lead up to the Council meeting for the preparation and circulation of agenda papers.

1. I agree with Council that the proposal represents a complex application. Although medium density development applications are not uncommon on main roads such as Burke Road, I agree with Council that the physical setting of the review site, with a series of potentially sensitive interfaces along the side and rear boundaries, does require a careful and thorough assessment of the impacts along each interface.
2. A consultative approach to development applications is a strong and very positive feature of the Victorian planning system. Applicants are encouraged to engage in pre-application meetings and to be involved in ongoing discussions and negotiations with Council Officers as an application proceeds through the assessment process. In most cases a more complex application will involve more discussion and negotiation. It would be a most unusual circumstance for a major medium density development not to be subject to modification as a result of assessment by Council officers.
3. In this particular case, the application plans were amended on at least two occasions. The first in March 2015 in the form of discussion plans. The second occasion at the hearing when the plans were substituted by the Tribunal. The tabling at the hearing of a further revision to the top level is indicative of ongoing refinement to the design which potentially results in a proposal which in its final form warrants approval. Although the multiple revision of plans inevitably causes delays, the final result can be a far more acceptable and positive development than the one first presented to Council.
4. The detailed list of dates of actions demonstrate to me that Council and the permit applicant were in ongoing negotiations and that Council was not wasting time or being inactive. The 74 day delay between the December 2014 consultation meeting and the submission of discussion plans in March 2015 was caused by the permit applicant. I make no criticism of the permit applicant given the time of the year and the work involved in preparing revised plans. However it serves to demonstrate that the delays were not solely caused by Council but were part of an iterative process to try and achieve an acceptable development. Although Council took nearly 3 weeks to respond to the discussion plans it made very little difference to the overall time spent assessing the application.
5. On balance, I am persuaded by the Responsible Authority that fees should not be reimbursed in this particular application. Ongoing discussions between a permit applicant and a Responsible Authority to achieve high quality and acceptable development outcomes should be encouraged, even if it results in longer approval times. Although Council did not eventually support this proposal, the amendments made to the application as part of those ongoing discussions, together with other changes, have resulted in a development that is now acceptable.

Construction of a multi-dwelling development in the General Residential Zone 7 (GRZ7) and alteration of access to a road in a Road Zone, Category 1 in accordance with endorsed plans.

1. Before the commencement of the development, two (2) 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 substituted by the Tribunal (being Issue TP15, Drawings DA1.01, DA1.02, DA2.01, DA2.02, DA2.03, DA2.04, DA2.05, DA3.01, DA3.02, DA3.03, DA4.1, DA4.2, DA4.3, DA.4.4, DA4.5, DA4.6, DA5.1, DA6.1, DA6.2, DA6.3 and DA6.4 dated 29 July 2015) but modified to show:
   • (a) The minimum gradients for the parking areas shown in accordance with the Australian Standards or otherwise to the satisfaction of the Responsible Authority.
   • (b) Any changes required to facilitate a substation if necessary.
   • (c) The top level (including terraces) setback a minimum of 22 metres from the western boundary so that it does not extend closer to the rear boundary than the western edge of the pitched roof of the dwelling at 235 Burke Road.
   • (d) Any changes as required by condition 3 (WMP), 10 (SMP), 14 (TMP).
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 Waste Management Plan (WMP) must be submitted to and approved by the Responsible Authority. The Waste Management Plan must be generally in accordance with that submitted with the application (by LID Consulting dated 14 August 2014).

When approved, the plan will be endorsed and will then form part of the permit. Waste collection from the development must be in accordance with the plan, to the satisfaction of the Responsible Authority.

1. 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.
2. The level of the footpaths and/or laneways must not be lowered or altered in any way to facilitate access to the site.
3. Prior to the development commencing a report for the legal point of discharge must be obtained from Council and a drainage design for the development must be prepared by a suitably qualified Engineer in compliance with Council's report prior to a building permit being issued. The drainage must be constructed in accordance with the Engineer's design.
4. All agricultural drains must be discharged to Council's drain in Burke Road.
5. All utility services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority by completion of the development.
6. Prior to occupation of the building or commencement of use, any existing vehicular crossing made redundant by the building and works hereby permitted must be broken out and re-instated as standard footpath and kerb and channel at the permit holders cost to the approval and satisfaction of the Responsible Authority.
7. 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. The SMP must be generally in accordance with that submitted with the application (by F2 Design dated August 2014).

All works must be undertaken in accordance with the endorsed Sustainability Management Plan to the satisfaction of the Responsible Authority. No alterations to the Sustainable Management Plan may occur without written consent of the Responsible Authority.

1. 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.
2. Before the development starts, 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. When approved, the landscape plan will be endorsed and will then form part of the permit. The landscape plan must be drawn to scale with dimensions and three copies must be provided. The landscape plan must be generally in accordance with the 'Landscape Plan for VCAT' prepared by John Patrick Pty Ltd dated July 2015 but modified to include the following:
   • (a) Evergreen trees along the northern boundary.
   • (b) Evergreen trees along the southern boundary in the vicinity of the in-ground swimming pool at 231 Burke Road and No 2 Hilary Grove.
3. Before the occupation of the development, 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.
4. Concurrent with the endorsement of development plans a Tree Management Plan (TMP) 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.
5. The tree management plan must detail measures to protect and ensure the viability of the two existing mature trees located on the subject site adjacent to the western boundary and the mature Canary Island Palm located directly adjacent to the southern boundary of the site, within 231 Burke Road.

Without limiting the generality of the tree management plan it must have at least three sections as follows:

(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 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.

Pre-construction works and any root cutting must be inspected and approved by the Parks Unit. Removal of protection works and cessation of the tree management plan must be authorised by the Parks Unit.

No vehicular or pedestrian access, trenching or soil excavation is to occur within the Tree Protection Zone without the written consent of the Responsible Authority. No storage or dumping of tools, equipment or waste is to occur within the Tree Protection Zone.

1. Prior to the occupation of the building, screens designed to limit overlooking as required by Standard B22 of Clause 55.04-6 in accordance with the endorsed plans must be installed to the satisfaction of the Responsible Authority and maintained to the satisfaction of the Responsible Authority thereafter for the life of the building.
2. Adequate provision must be made for the storage and collection of wastes and recyclables within the site prior to the commencement of use or occupation of the building. This area must be appropriately graded, drained and screened from public view to the satisfaction of the Responsible Authority.
3. All plant and equipment (including air-conditioning units) shall be located or screened so as not to be visible from any of the surrounding footpaths and adjoining properties (including from any first floor windows and balconies) and must 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.

1. The internal access ramp must be no less than 6 metres in width for the first five metres within the property boundary to the satisfaction of the Responsible Authority.

1. This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:
   • (a) The development is not started within two years of the issued date of this permit.
   • (b) The development is not completed within four years of the issued date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

----End of Conditions---

[1] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[2] I 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. I do not recite or refer to all of the contents of those documents in these reasons.

[5] In some locations further south, the GRZ10 is replaced by the NRZ to recognise minimal change areas.

[6] A18 Pty Ltd v Stonnington CC [2014] VCAT 1015.

[7] Global Alpha Group Pty Ltd v Boroondara CC [2013] VCAT 1929.