The decision of the Responsible Authority is set aside. In permit application 0338/08a permit is granted and directed to be issued for the land at

721-723 Toorak Road, Kooyong. The permit allows the demolition of existing buildings and the construction of dwellings in accordance with the endorsed plans and subject to the conditions set out in Appendix A.

1. This is an application to review the failure of the responsible authority to grant a permit within the prescribed time in respect of a permit application to demolish two existing dwellings and construct 9 dwellings in a 3 level building over a basement[1], at 721-723 Toorak Road, Kooyong. The responsible authority ultimately decided that had it not been for the application for review it would have refused permission for the following reasons:
   1. The proposed demolition of the two B-graded buildings is inappropriate.
   2. The proposed replacement building will have an inappropriate heritage outcome and fails to adequately respond to the Clause 22.04 (Heritage Policy) and Councils Heritage Guidelines.
   3. The proposal fails to adequately respond to the character of the area and does not meet the requirements of Clause 22.02 (Urban Design Policy) and Standard 81 of Clause 55.
   4. The proposal will have an inappropriate impact on the amenity of 725 Toorak Road.
2. At the commencement of the hearing Mr Gobbo applied to amend the permit application by the substitution of amending plans as foreshadowed by notice given in accordance with the Tribunal's practice requirements. No person opposed the amendment of the permit application in this way, and the Tribunal ordered the amendment of the permit application in accordance with Mr Gobbo's request.
3. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality.

1. The subject land comprises two regular lots located on the north eastern corner of Toorak Road and Avenel Road. Both lots extend through to Sutton Street at the rear. The land has frontages to Toorak Road and to Avenel Road of 27.43 metres and 50.10 metres respectively and an area of approximately 1380 square metres. There a fall of 4.41 metres from the south west to the north east across the land.
2. The two lots comprising the subject land each contain a Federation (or Edwardian) Villa in good to fair condition. Both dwellings are graded B in the citation to the Heritage Overlay (HO 181).
3. Land north of Toorak Road bound by the railway to the east and north and Glenferrie Road to the west is a diverse and attractive residential precinct predominantly developed in the interwar period. The Toorak Road edge of this precinct lacks the gentle tree lined ambiance of the streets to the north and its residential amenity is compromised by heavy traffic.
4. This precict is contained within Heritage Overlay (HO 181)- Kooyong Precinct[2]. The Statement of Significance for the Kooyong Precinct is as follows:

The Kooyong area is of local heritage significance as an architecturally interesting and diverse group of interwar dwellings and streetscapes which include several substantial buildings of state significance.

1. The proposed redevelopment can be summarised as follows:
   • Demolition of the existing dwellings and associated outbuildings;
   • Construction of 9 dwellings in a 3 storey building over a semi-basement garage;
   • The basement garage will contain 21 car spaces, storage areas for each of the dwellings, a bin storage area and plant rooms Vehicle access is from Sutton Street to the rear;
   • Lift and stair access to all floors;
   • The ground and first floors each contain 4, 2 bedroom dwellings;
   • The second floor, the topmost level, will contain a 3 bedroom "penthouse" dwelling;
   • A deeply inst pedestrian entrance with foyer and lift lobby is centrally located on the Avenel Road elevation of building.
   • The building will have a classic design with render and brick walls and a pitched slate roof above the inset second floor.
   • A brick pier and iron picket fence is proposed to all frontages.

1. The subject land is located within a Residential 1 Zone (R1Z) and Heritage Overlay Area (HO 181). A permit is required to
   1. demolish existing buildings, and;
   2. construct the building.
2. Clause 55 of the Planning Scheme, Rescode, does not apply as the proposal is for a 4 storey building. However the parties agree that the clause 55 standards are a useful guide to assess the amenity impacts of the proposal.
3. From a policy perspective, this case is essentially a clash between housing related policies and policy directed to the preservation of cultural heritage. Set out below are extracts from the planning scheme and the heritage guidelines which give some sense of the policies to be balance to reach a preferable decision:

The Strategic Framework Plan[3] is a snapshot of these four strategic themes. It identifies locations where specific outcomes are encouraged, including redevelopment and mixed use opportunities. Areas of natural significance and environmental constraints on use and development are also identified.

The major strategic components identified on the plan are as follows:

• Identified arterial roads where medium density housing including shop tops is encouraged and higher scale development may be supported.
• Identified sites where redevelopment opportunities exist.

• Manage the height and density of future use and development to enhance the character of Stonnington's built form and the City's views and vistas.
• Support development higher than two storeys on land shown on the Strategic Framework Plan, namely:
  • Land with a frontage to a Road Zone (Category 1)

• To recognise, conserve and enhance places in the City identified as having architectural, cultural or historic significance.
• To ensure that any additions, alterations and replacement buildings are sympathetic to the heritage area and / or surrounds.
• To ensure that the cultural significance of a site, involving the aesthetic, historic, scientific or social value of a place to past, present and future generations, is assessed and used to guide planning decisions.

• Before deciding on an application to use or develop land, the responsible authority will consider, as appropriate, the potential impact of a proposal on the heritage values of the site and/or its setting and area.
• ...

1. City Of Stonnington Heritage Guidelines 2002 provide

Buildings graded A1, A2 or B, categorised as significant buildings under the Stonnington Planning Scheme, should be retained as a matter of priority. In some circumstances (ie where they only make a negligible contribution to the significant character of their streetscape), buildings graded C, which are identified as contributory buildings under the Stonnington Planning Scheme, may be replaced by new buildings of appropriate scale, setback and character, although restoration or sensitive adaptation are preferred. Ungraded buildings may be replaced by new buildings of appropriate scale, setback and character.

1. In this application there are three primary issues, they are:
   • Is the demolition of the two existing dwellings appropriate having regard to the heritage overlay and the planning policy framework generally;
   • If demolition is appropriate, is the proposed replacement building an acceptable building in its heritage and neighbourhood setting having regard to the planning policy framework, and;
   • Will the construction of the replacement building result in unacceptable offsite amenity effects.
2. However before turning to these issues I wish to address the arguments put to me that the fact that the subject land is a corner site, was an important factor in the consideration of at least two of the issues set out above.

1. The subject land addresses three streets. The frontage of the land is to Toorak Road an important arterial road. The sideage of the land is to Avenel Road is an attractive residential street within the hinterland of the Kooyong Heritage Overlay Area. The rear boundary of the land abuts Sutton Street which on its south side provides service access to the rear boundaries of Toorak Road properties between Avenel Road and Elizabeth Street.
2. It was Mr Raworth's opinion that the fact that the subject land was a corner site had two relevant consequences ie:
   • The prominence of the corner site exacerbated the impact on the significance of the heritage place arising from the demolition of the existing dwellings, and;
   • The prominence of the corner site exacerbates the impact of the proposed infill building on the significance of the heritage place.
3. A general observation to be made is that it is often the case that buildings fronting one street have a different character to that of the buildings fronting side streets running off that street, particularly when one of the streets is a higher order street, an arterial road for example. This is I think true in Toorak Road itself to the west of the subject land and in many respects the most extreme example of this phenomena is Beach Road[4] and the hinterland streets behind. In my opinion an ordinary observer is able to distinguish between these two characters, notwithstanding the fact that buildings fronting the primary street on corner sites are observable from within the hinterland area.
4. However in this case, notwithstanding the impact of the Toorak Road environment discussed above[5], the dwellings on the north side of Toorak Road between Avenel Road and Elizabeth Street are similar in character to those of the hinterland streets. In such circumstances there will be many cases, as Mr Raworth argues, where the loss of a corner building will significantly detract from the significance or character of the area.
5. Corner sites are often seen as desirable building sites. Dwellings built on corner sites will often be better examples of the dwellings of relevant period than other dwellings within the precinct. Dwellings on corner sites are often designed to address both streets. The presence of such factors might make good Mr Raworth's argument. However, I do not think that these factors strongly apply in this case. The design of the dwelling at 721 Toorak Road and the fencing to Avenel Road, all make it a dwelling which particularly belongs to Toorak Road.
6. The photographs below contrast and admittedly extreme example of a grander dwelling addressing a corner and the existing building at 721 Toorak Road.

1. The fact that the subject land is a corner site is obviously of some significance to the impact of the proposed demolition, but not of much significance in my opinion.
2. In relation to the second issue raised by Mr Raworth, this was an issue also strongly argued by the respondent objectors. An argument even more important to the residents of Sutton Street, and the residents of Toorak Road properties who rely on Sutton Street as a primary point of entrance to their properties, because of the difficulties inherent in using Toorak Road.
3. I agree that any building on the subject land has to respond not only to the character of Toorak Road, but to its entire site context, including its relationship to Avenel Road and Sutton Street. However, a consideration of this issue must be informed by the knowledge that an observer can and does distinguish between the character of buildings fronting primary streets[6] and the character of hinterland streets, and the planning policy framework's encouragement of more intensive development on the properties fronting Toorak Road.

1. Mr Keaney in Alavale Pty Ltd v Stonnington CC [2003] VCAT 1800, in dealing with the proposal to demolish a B graded building a short distance west of the subject land, on the corner of Toorak Road and Monaro Road within the Kooyong Heritage Precinct, made the following observations:
   1. As an individual site, the Tribunal agrees with the terminology of all the parties. On the one hand Mr. Gobbo described its contribution as "modest"; Ms. Riddett as "representative"; Mr. Raworth as "useful"; and "relatively prominent". All are accurate. The Tribunal can understand why the site is within a heritage overlay and it understands Mr. Raworth's defence of it but, in its context, it is anything but exceptional and its loss would be hardly noticeable. In a streetscape sense, the site has now been somewhat swamped by its Toorak Road context of a busy road, much noise, newer buildings and some very high front fences.

1. The subject land is a large corner site fronting onto Toorak Road. It is not particularly close to any significant activity centre, but it is well served by public transport and enjoys a close connection to the metropolitan freeway system. The land is specifically identified under the strategic framework plan as land upon which medium density housing is encouraged.
2. It is my conclusion that while I agree with Mr Raworth that these buildings make a useful contribution to the significance of heritage place, their demolition will not appreciably compromise the significance of the place and in these circumstances the housing related strategies of the planning scheme must outweigh those directed towards the conservation of buildings within heritage places.

The replacement building - architecture and character

1. The proposal is for an apartment building, with each level including the basement level on one plane from front to rear, it is a building form which is not found in the hinterland streets, Avenel Road, Northbrook Avenue, Elizabeth Street and Sutton Street. It is argued that the form and scale of the building, exacerbated by the slope of the land[7], is therefore inappropriate.
2. It is true that the building will be read as a single building, and that it has a substantial façade to Avenel Road. However, I do not agree that the building does not respond both to the topography, and to the transition in scale and character than one would expect from south (Toorak Road) to north.
3. The Avenel Road façade of the building is heavily articulated dividing the building into two wings, a three storey wing to the south, adjacent to Toorak Road, and a two storey[8] wing to the north, addressing the corner of Avenel Road and Sutton Street. It is my conclusion that the building responds appropriately to the heritage and neighbourhood character of the area when these considerations are appropriately balanced against the planning policy context relevant to Toorak Road properties in this locality.
4. The architecture of the proposed building does not adopt any particular neo classical style, it is nevertheless a building which utilises a traditional or classical language. There were some criticism of the architecture, and the choice of materials in particular the choice of bricks. With the exception of a group of properties which reportedly utilise red bricks sourced from the brick works historically located on the site of the Robert Menzies reserve opposite in Toorak Road the architecture of the Kooyong precinct as a whole is diverse, and I do not agree that the architectural style of the building or its materials are inappropriate for the locality.

1. The most significant off site amenity effect is the affect of the proposed building on the rear garden of the more modern dwelling at 725 Toorak Road. The subject land is somewhat higher than 725 Toorak Road and on the basis of my inspection the proposed building will be very prominent when viewed from the swimming pool and the pool surrounds to the rear of this dwelling. The dwelling itself however, and its directly connected open spaces, are oriented to the north and east and as a consequence users of these spaces will be much less significantly affected by the mass of the proposed building.
2. The planning policy context is one in which a substantial change in the intensity and scale of building form is to be anticipated. This is a circumstance in which the Tribunal's more conventional approaches to backyard amenity do not apply. In Toorak Road, in the current planning context, the development of new larger buildings on adjoining sites is a reasonable expectation. Nevertheless, the proposed building, as it abuts this rear garden space, should be required to comply with the setback standards of ResCode Standard B17.
3. The applicants agree that privacy measures to reasonably limit overlooking into the rear yard of 725 Toorak Road are appropriate, I agree with this opinion and would support the use of "in glass" slats to limit downwards views while not unreasonably compromising the amenity of future residents.
4. In relation to the amenity impacts of the proposal on properties to the west across Avenel Road, to the north across Sutton Street, or further to the east in Toorak Road I do not consider that the proposed building will have any unreasonable offsite amenity impacts in respect of, building mass, privacy, headlight glare, traffic, or car parking demand. From these perspectives the building is too distant, and the number of additional dwellings proposed too small to have any significant effect.

1. It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be set aside and a permit granted.
2. In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.

1. Before the development starts, plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the plans Tp01, Tp02b, Tp03a, Tp04c, Tp05d, Tp06d, Tp07d, Tp08c, Tp09c, Tp10c, Tp11c, dated 2.03.09 and prepared by Stoll Long Architecture and Landscape Concept Plan Issue B dated February 2009, prepared by Pelham Design Studio Pty Ltd and date stamped 4 March 2009 with three copies to be provided. The plans must show:
   • (a) The height and setback of the eastern wall of dwelling 8, as it relates to 725 Toorak Road, being in accordance with the requirements of Standard B17 of Clause 55.04-1 of the Stonnington Planning Scheme;
   • (b) Privacy measures in respect of the east facing windows of dwelling 8 and the eastern edge or the terrace and pool of dwelling 9 to reasonably limit overlooking into the rear private open space of 725 Toorak Road;
   • (c) A schedule of construction materials, external finishes and colours;
   • (d) Location of mechanical plant and equipment including, but not limited to, overruns, flues, exhausts and air-conditioning units.
2. The development allowed by this permit and shown on the drawings and/or schedules endorsed to accompany the permit must not be amended without the written consent of the Responsible Authority.
3. Concurrent with the endorsement of plans an amended landscape plan must be submitted and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. The plan must be generally in accordance with the Landscape Concept Plan Issue B dated February 2009, prepared by Pelham Design Studio Pty Ltd and date stamped 4 March 2009 and must display the following:
   • (a) The trees and plants listed on the planting schedule are to have corresponding labels on the plan and the number of each species to be planted.
   • (b) Betula pendula (Silver Birch) tree species are not to be plant in the streetscape.
   • (c) Any trees scheduled for Sutton St must be Pyrus calleryana 'Capital'.
4. Prior to the occupation of the development allowed by this permit starts, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.
5. Concurrent with the endorsement of development plans a tree management plan prepared by a suitably qualified arborist must be submitted to and approved by the Responsible Authority. When approved, the tree management plan will form part of this permit and all works must be done in accordance with the tree management plan. The tree management plan must detail measures to protect and ensure the viability of the trees to be retained on and in proximity to the subject site (including street trees). Without limiting the generality of the tree management plan it must have at least three sections as follows:
   • (a) Pre-construction/demolition - 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/demolition - 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/demolition works and any root cutting must be inspected and approved by the Responsible Authority. Removal of protection works and cessation of the tree management plan must be authorised by the Responsible Authority.

Except with the further consent of the responsible authority (or as otherwise provided for by the tree management plan):

(a) No services are to be trenched within the TPZ of each tree.

(b) There must be no trenching for fence foundations within the RPZs of the Pinoaks in Avenel Street (trees 25 and. 26 in the applicant's arborists report dated 25th March 2008, prepared by Galbraith & Associates). If fence pillars are to be constructed within the RPZs, their positions must only be chosen after non root destructive exploratory trenching under arboricultural supervision to at least 600mm depth has revealed there are no roots whose loss will have an adverse impact on the SULEs.

(c) There must be no level reduction or trenching for any purpose inside the property boundary, within the RPZs or (in relation to tree 26), between the edge of the existing building and the tree, whichever the closer.

(d) With respect to tree 25, the raised levels within the RPZ must be a rocky porous fill overlaid by topsoil (rather than a compacted heavy textured fill).

1. All existing vegetation shown on the endorsed plans to be retained must be suitably and clearly identified before any development (including demolition and excavation) starts on the site and that vegetation must not be removed, destroyed or lopped without the written consent of the Responsible Authority.
2. 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 prior to a building permit being issued. The drainage must be completed in accordance with the Engineer's design and certification for the design must be provided to Council at the completion of the works.
3. The applicant must construct a 300mm diameter outfall drain in Sutton Street to connect to Council stormwater it on the South-West corner of Sutton and Elizabeth Streets at the applicants cost. The works must be completed in accordance with a detailed drainage plan to be approved by Council's Infrastructure Unit and to the satisfaction of and under the supervision of the Responsible Authority.
4. The vehicle crossover is to match the existing levels at the Sutton Street property line.
5. The vehicular crossing must be constructed to Council's standard vehicular crossing specifications.
6. All disused or redundant vehicle crossings must be removed and the area reinstated to kerb and channel to the satisfaction of the responsible authority.
7. Before the development starts, areas set-aside for parked vehicles and access lanes as shown on the endorsed plans must be:
   • (a) Constructed to the satisfaction of the Responsible Authority.
   • (b) Properly formed to such levels that they can be used in accordance with the plans.
   • (c) Surfaced with an all weather sealcoat or surfaced with crushed rock or gravel to the satisfaction of the Responsible Authority.
   • (d) Drained and maintained to the satisfaction of the Responsible Authority.
   • (e) Line marked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority. Parking areas and access lanes must be kept available for these purposes at all times.
8. The collection of wastes and recyclables from the premises (other than normal Stonnington City Council collection) must be in accordance with Council's General Local Laws
9. Concurrent with the endorsement of plans, a Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan must include:
   • (a) Dimensions of waste areas
   • (b) The number of bins to be provided
   • (c) Method of waste and recyclables collection
   • (d) Hours of waste and recyclables collection
   • (e) Method of presentation of bins for waste collection

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. Air-conditioning and other plant and equipment installed on the subject buildings shall be so positioned and baffled so that no noise disturbance is caused to occupiers of adjoining properties to the satisfaction of the Responsible Authority.
2. External lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the Responsible Authority.
3. All services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
4. This permit will expire if one of the following circumstances applies:
   • (a) The development is not started within two years of the date of this permit.
   • (b) The development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

[1] To the rear of the land the basement extends above natural ground level by more than 1.2 metes; Mr Klarica and Mr McGurn submitted that as a consequence the building was technically a 4 storey building.

[2] With the exception of properties, such as the adjacent property at 719 Toorak Road, which are included within a site specific heritage overlays.

[3] The Strategic Framework Plan identifies all of Toorak Road as being within the category of, Selected arterial roads where Medium Density Housing and Shop Tops are encouraged and High Scale Development may be supported.

[4] and other streets fronting onto the bay

[5] See para 6.

[7] In this regard it was argued that the building was not site responsive, because the floors within the building do not step down the site in response to the topography of the land and locality.