Mr A Hutson, Architect and Urban Design Consultant.

Mr P English, Town Planner, Peter English and Associates.

The permit allows a four storey building containing three shops, 27 apartments and basement car parking. The proposal seeks amendments to the permit. The amendments include the provision of a fifth storey, increase in the number of apartments to 35, reduction in the number of shops from three to two, modified car parking and vehicle access arrangements.

Application under Section 77 of the Planning and Environment Act 1987.

Clause 32.04-5: Construct more than one dwelling on a lot

Clauses 11, 13.02, 15.01, 15.02, 16.01, 18.02-5, 21, 22.02, 22.05, 22.06, 22.09, 22.12, 22.13, 52.06, 52.07, 52.34, 52.35 and 65.

Rectangular site with an area of 1165 square metres located on the corner of Malvern Road and Bonview Road Malvern. The site is occupied by a retail plant nursery. Land to the north and west is used for commercial purposes while land to the south and east is occupied by dwellings. The site is within an activity centre that extends along Malvern Road while Bonview Road is a residential street.

Cadden v Stonnington CC [2009] VCAT 1215

Senior v Stonnington CC [2008] VCAT 353

1. In June 2009, the Tribunal directed the issue of a permit[2] for the redevelopment of land known as 1274 Malvern Road, Malvern for a four storey building containing three shops at ground level, 27 apartment style dwellings in the three levels above and basement car parking[3].
2. Mr Cadden has lodged an application with the Tribunal to amend the permit. The amendments include the provision of a fifth level, changes to the building layout to provide for two shops at ground level and 35 apartments style dwellings and basement car parking. Access to the basement car park is to be via the rear laneway rather than directly from Bonview Road.
3. The Council opposes the amendment of the permit. It considers the additional level would present unreasonable bulk and inadequate setbacks to the north, south and west. It is also concerned about some of architectural treatments that project beyond the property boundaries. In addition to the matters raised by the Council, neighbours are concerned about traffic impacts, noise, odours, overlooking and overshadowing.
4. Given the submissions and evidence presented, the issues in this matter are:

1. Are the height and bulk of the building acceptable? 2. Will the proposed development result in unreasonable overlooking and overshadowing of neighbouring residential properties?

1. Will the proposal result in unreasonable impacts on amenity due to traffic, noise and odours?

1. Is enough parking provided?
2. We must decide whether the amendments sought by Mr Cadden should be approved, and if so, what conditions should be applied to the amended permit. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Stonnington Planning Scheme, we have decided that most of the amendments sought are acceptable. We accept that there is scope for a fifth level on this building. However, we find that the proposed fifth level to be excessive in size, presenting unreasonable bulk to residential property to the rear and to the Malvern Road streetscape. However, this can be remedied by requiring the proposed uppermost level to be stepped back further from the frontage and the units running adjacent to the laneway deleted. In other respects we find the changes to the building layout, increase in the number of apartments, the access to car parking and car parking spaces to be provided acceptable. We find that subject to the major amendment being the fifth level reduced in size as well as other minor adjustments would not result in a building that is inappropriate having regard to the streetscape/neighbourhood character. Nor would the proposal result in unreasonable impacts on amenity.

Are the height and bulk of the building acceptable?

1. The Council and Mr Davies submit that the additional height and resultant bulk are unacceptable.
2. The Council acknowledges that the site is suited to higher density development given its main road and activity centre context. However, it submits that the approved four storey development already provides a form of higher density development thus achieving the outcome sought by planning policy.
3. In coming to its decision to grant the permit, the previous Tribunal commented:

We agree with both Council and the permit applicant that there is strong strategic support for more intensive development on this site. Nor is there any doubt that a mixed use development comprising three shops (or car showrooms) with dwellings above is consistent with the Mixed Use Zone and relevant planning policies. The strip of land along the southern side of Malvern Road was rezoned from Residential 1 to Mixed Use in April 2004. The panel commented that:

"Taking on board the number of non-conforming uses in that section of Malvern Road and the unlikely scenario that those uses will convert to traditional residential density uses, the Panel finds that a rezoning is warranted. The Panel's view is that the intended zone should allow existing commercial uses to redevelop and residential properties to redevelop at a higher density in keeping with their main road location".

1. The physical and strategic context of this site supports its redevelopment in an intensive way. The site is in an activity centre. It is on a main road. It has good access to public transport. It is in the midst of the commercial strip with adjacent properties mainly used and developed for commercial purposes. Those properties are also likely to be redeveloped. As noted by the previous Tribunal, although the Mixed Use zone is part of the suite of residential zoned in the planning scheme, nonetheless its purpose and provisions contemplate a mix of residential and commercial uses and built form outcomes that will be quite different to what could be expected in residential hinterland areas. Further, the site is relatively large, is regular in shape and appears to have few constraints on its development potential. This is a good site for redevelopment.
2. We accept the Council's proposition that the redevelopment of the site for a four storey building works toward achieving the outcomes sought by the planning scheme's housing and urban consolidation policies. However, that in itself does not mean that a more intense development in a taller building should not be considered if an acceptable design response is put forward. Planning policies encourage the efficient and effective use of land. It is not contrary to planning policy to seek to optimise the use and development of good sites in strategic locations like this one.
3. The Council also submits that the fifth level is inappropriate given the site's Mixed Use zoning. The Council contends that the more intense forms of development should be located further east within that part of the activity centre zoned Business 2. The Council notes that buildings in the Business 2 zoned area range from 2-4 storeys in height and it would therefore be inappropriate to have taller buildings in the Mixed Use zone.
4. In putting forward this proposition, the Council relies on the views of the Tribunal in Senior v Stonnington CC[4] when it said:

39. The Mixed Use zone and the Business 2 zones, both of which apply in this part of Malvern Road, are very different zones and are intended to achieve very different built form and land use outcomes.

40. By virtue of the application of the Mixed Use zone on the south side of Malvern Road, the Council has in fact sought to distinguish between the intensity, form and scale of development considered acceptable in that zone, from the intensity, form and scale of development considered acceptable in the Business 2 zone. Notwithstanding this, the Council has sought to rely on the scale and form of developments occurring within the Business 2 zone to support its submission that the proposal it has approved, and the changes to that proposal which it now supports, are acceptable. I am not persuaded that this is the correct approach.

1. We do not disagree with the Tribunal's comments in Senior. Clearly different zones have different purposes. It is reasonable to expect that land use and resultant built form outcomes would be different. The Tribunal's concerns with the approach taken by the Council in Senior appear to relate to the notion of transposing a type of built form found in one part of an activity centre into another without due regard to the context. The context includes the zoning. But it also includes other factors like the attributes of the site and the nature of surrounding development. Accordingly, it is not just a matter of comparing zones, but rather, there is a need to consider the merits of the proposal having regard to the context in its entirety. The zone provisions themselves do not contain any provisions which lead to the conclusion that the level of development in one should be greater than the other.
2. Turning to mattes of context, the Council contends that a five storey building would not fit in well with the character of the area, particularly given the single and two storey scale of the buildings to the east and south. The Council submits that the proposed additional level would result in a five storey building which is out of place having regard to the nature of development along Malvern Road and the site's interface with residential properties to the south.
3. Mr Hutson expresses the view that the fifth level (fourth floor plan) is acceptable given the site's frontage to Malvern Road which is relatively wide, contains a number of large commercial buildings and is a relatively busy thoroughfare. Mr Hutson considers the design response to be acceptable given that the building would present the lower three storeys constructed to the frontage as a street wall, with the fourth level and proposed new fifth level both setback from the front of balconies , .09 metres from the level below. Given the setback of the fourth and fifth levels, Mr Hutson considers that they would be read as recessive elements in the Malvern Road Streetscape context. Mr Twite adds that through the use of a muted palette of materials and finishes, there would be reduced emphasis on the upper levels of the building with the three storey street wall being prominent. He also suggests that the overall height of the building would not be out of place given that four storey developments have been constructed elsewhere in the activity centre.
4. In granting the permit for the four storey building, the Tribunal said:

Although residents were concerned about the height of the building, we find a building of four storeys quite unremarkable on a main traffic artery. Two and three storey dwellings of up to 9 metres in height are becoming increasingly common in the residential areas of Malvern and new dwellings in Bonview Road are generally much taller and larger than the ones they replace. The strip along Malvern Road already contains taller buildings, the equivalent of two and three storeys, and a number of three storey developments have been recently approved even in the Residential 1 Zone to the north west. If our residential hinterlands, which Council and residents value so highly, are to be protected from intolerable pressures for much more intensive development then it is inevitable that sites along major roads that already contain taller built form will be developed for buildings such as the one in this proposal. Given the unmet demand for new housing across Melbourne, we suspect that in years to come much taller buildings will be proposed, and indeed built, on sites along arterial roads already earmarked by Council for more intensive development.

1. Having inspected the site and surrounding area, we are not surprised that the Tribunal came to these conclusions. A three storey building with a fourth level stepped back from the frontage would not be remarkable given the context of this site. In particular, the stepping back of the fourth level, even with a relatively small setback of 2.89 metres to the building alignment from the north boundary would ensure that it is perceived as a recessive element within the streetscape.
2. On considering the submissions and evidence, we conclude that there is scope for a fifth level on this building. The site's attributes, the strategic context and the form of development along Malvern Road, both existing and evolving, support this.
3. However, we have not been persuaded that the approach taken by the applicant is entirely correct. The concept that underpins the approved scheme is that the lower three levels of the building will read as a street wall with the fourth level being read as a recessive element albeit with a small setback. Even with a small setback, the level below partly obscures the fourth level. We consider that the introduction of an additional fifth level at the same setback to Malvern Road as the fourth level below will make the upper levels of the building too prominent.
4. We agree with the Council's urban designer that at the very least the additional uppermost level should be setback further from the fourth level below. We consider that a further setback of 1.8 metres is warranted. This would work toward maintaining the perception of the two upper levels being read as recessive elements. We find this measure appropriate given the height, nature and form of new development in the activity centre which appears based around maintaining the three to four storey scale at Malvern Road with taller elements, such as those found on some newer developments further east, setback significantly greater distances from Malvern Road.
5. We have also considered submissions about the impact of the building when viewed from the rear towards the south elevation. The Council and Mr Davies submit that the extra level would impose excessive and unreasonable bulk toward the adjacent residential properties. Mr Hutson acknowledges that the proposed uppermost level would have a "visual presence" from the adjoining property to the south. However, he expresses the view that this is acceptable given the substantial setback to the level as proposed. Mr Twite notes that the setback between the proposed fifth level and Mr Davies property would be well in excess of the setback required under Standard B17 at Clause 55.
6. There is no doubt that the most sensitive interface is that between the subject site and Mr and Mrs Davies property which is located directly to the south on the opposite side of the laneway. The interface is sensitive not just because the Davies property is occupied by a dwelling, but also because they have a secluded backyard with a northern orientation of their primary living areas providing an outlook toward the back of the subject site. There will be a full view of the proposed development from their backyard.
7. Under the approved scheme, the lowest three levels of the building would be apparent from the Davies backyard[5]. The presentation of a three level building, stepping back, is not unreasonable given the location of the site and the additional separation created by the laneway. However, we have come to the conclusion that the proposed fifth level, as put forward in the application, would be overly dominant when viewed from the Davies backyard. We are of the view that a much greater setback is needed. We consider that this can be achieved through the deletion of units 34 and 35 and setting the rear wall of this level in line with the 4th floor breezeway and associated lift core and services duct. With this change, the uppermost level will have minimal impact on the neighbours.
8. The Council's urban designer suggests that the uppermost level should also be setback from Bonview Road. We do not agree as the west facade of this building is well articulated by balconies; it is relatively modest in size given the deletion of units 34 and 35; would be located adjacent to a commercial property to the west and is screened by large street trees.
9. The Council is also concerned about balcony projections at first and second floor level. These projections go beyond the title boundary. We do not accept that they should be deleted. Projections of this type form part of the approved scheme for the site. The Tribunal did not require their deletion. The projections assist in articulating the facade and do not pose any particular difficulty.
10. Accordingly, it is our conclusion that subject to the proposed upper level being setback a further 1.8 metres and the deletion of units 34 and 35, a fifth level can be supported as part of this development.

Will the proposed development result in unreasonable overlooking and overshadowing of neighbouring residential properties?

1. Mr Davies and Mr Low are both concerned about the potential for their respective properties to be overlooked from windows, balconies and through the central breezeway area.
2. In relation to the potential for overlooking to the south toward Mr and Mrs Davies property, we note that a number of balconies on the first and second floor plans are to be screened to a height of 1.7 metres to prevent potential for direct views. Consistent with the Tribunal's decision in the previous case, balconies on the third floor plan have not been screened.
3. We consider that it is open to us to review the screening of windows and balconies to all south facing balconies and windows given the changes to the building layout on all levels. We agree with the previous Tribunal that it is not necessary for all windows and balconies to be screened. This is because some of them are a significant distance from Mr and Mr Davies property and/or do not have a direct outlook over the backyard area. Further, with the deletion of Units 34 and 35, overlooking from the proposed top level toward the south is no longer an issue. The south wall to the fourth floor breezeway should be solid with highlight windows above 1.7 metres or opaque glass below this height.
4. On reviewing the plans, we consider that screening measures should be taken with respect to:
   • The south facing balconies and windows to Units 10, 11 and 12;
   • The south facing bedroom windows of Units 20 and 21; and
   • The southern side of the balconies to Units 27, 28 and 29.
5. Mr Low is also concerned about the potential for overlooking of his first floor terrace and the backyard of Ms Regos' property which is immediately to the east of the site. He submits that such overlooking would occur from windows, the side of balconies that have not been screened and through the breezeway area.
6. By and large the measures proposed to limit the potential for overlooking to the east are reasonable. The only exceptions to this relate to the east facing windows of Unit 29 and the screen to the breezeway. The windows to Unit 29 should be screened in the same way as the east facing windows of the levels below. It may also be necessary to reposition to fixed screen closer to the breezeway on all floors given the deletion of units 34 and 35. Subject to these changes we are satisfied that there would not be unreasonable potential for overlooking.
7. While Mr Low is concerned about the lack of screening to the side of the front balconies and breezeway, the reality is that the balconies and breezeway are located a considerable distance from his terrace, well beyond the nominal 9 metres specified under Standard B55 at Clause 55. There are also intervening structures that would partly obscure views.
8. We have also reviewed the shadow diagrams and assessed shadow impacts on the two immediately adjacent residential properties to the south and east. On reviewing the relevant diagrams, it is clear that the proposed changes will have minimal shadow impacts on neighbours. With the changes that we require, those impacts would be further reduced. The proposed changes to the building would not have any impact on Mr Low's terrace and ground floor cafe courtyard. The terrace is elevated and some distance from the site. The courtyard is surrounded by tall walls which will have the main shadow impact.

Will the proposal result in unreasonable impacts on amenity due to traffic, noise and odours?

1. Mr Davies contends that the increase in the number of apartments together with the relocation of the access point into the basement car park would give rise to unreasonable traffic and noise impacts. This is because all vehicles associated with the proposed development would travel up and down the laneway located directly to the north of his backyard area. Mr Davies also submits that the overall amount of traffic cannot be accommodated in the laneway and Bonview Road.
2. Mr Kiriakidis has examined the traffic impacts. His analysis reveals that the proposed development would generate about 204 vehicle movements on a daily basis. Of these about 24 movements can be expected in each of the morning and afternoon peak hour periods. During other times, there would be less number of movements within any given hour.
3. A fundamental change proposed in this request relates to the repositioning of the access point into the basement. Under the approved scheme, the basement is accessed via a driveway extending directly from Bonview Road near the site's southwest corner, adjacent to the laneway. However, under the amended scheme, the access point to the basement is relocated to the southeast corner of the site. As such, all vehicles would need to enter and leave the site via the laneway between the site and Mr and Mrs Davies' property. As part of this amendment, it is proposed to set the ground floor level of the building back off the laneway alignment by about 2 metres. In effect, this will create a 5 metre wide accessway adjacent to the site for vehicle movements.
4. While the proposed change would introduce about 200 vehicle movements into the laneway on a daily basis, we agree with Mr Kiriakidis that this level of traffic is relatively low and manageable. This is particularly so given that the section of laneway between the basement access point and Bonview Road will be wide enough for two-way directional flow of traffic. The overall number of peak hour movements is about 24. This can be easily accommodated given the two-way flow.
5. It is not uncommon for laneways to be used as access points for developments like this. Provided that the laneway has the capacity to accommodate the level of traffic, it is appropriate that they be used as access points. It is preferable to have the proposed access arrangement to that originally proposed as that would have resulted in a driveway located next to the laneway. While acceptable, the potential for conflict between vehicles is greater than what is proposed in this case.
6. While the change in traffic will be noticeable at times, we do not accept that the noise impacts would be substantial or unreasonable. The reality is that the overall amount of traffic is low and for the most part will be barely perceptible from neighbouring properties.
7. In terms of the impact on Bonview Road, the proposed changes would have little impact. While the number of units is increased, the amount of retail area has been reduced. But even if that were not the case, the additional number of units is relatively low and would generate modest traffic. We agree with Mr Kiriakidis that the traffic generated by the amended development can be accommodated in Bonview Road and there would not be unreasonable delays or conflicts at the intersection with Malvern Road.
8. The only change to the access arrangements which we consider necessary involve the deletion of the small landscape area adjacent to the basement entry. The deletion of this area will allow for easier manoeuvring into the basement. We also consider it unlikely that landscaping in such a small area at the back of development will be well maintained.
9. Concerns about noise from the roller door opening and closing can be dealt with by permit condition requiring the door type to be specified.
10. Mr Davies also submits that the changes to the layout give rise to loss of amenity due to odours. The proposed waste storage area is to be located adjacent to the laneway. Waste will be collected via the laneway. Mr Davies contends that the proximity of the waste storage area to his backyard gives rise to the potential for odours to be perceived from his backyard.
11. We do accept that the proposed changes would give rise to odours. The waste storage area is to be enclosed. It is internal to the building. While waste collection will occur from the widened laneway area, this will not be for extensive periods and are not sufficient basis to reject the proposal. It is appropriate that a condition requiring a waste management plan to be prepared and implemented to the Council's satisfaction.

1. Mr Davies contends that insufficient car parking is provided.
2. The development allowed under the permit provides three shops with 717 square metres of retail area and 27 apartments. Under the amended proposal, the retail area would be reduced to about 497 square metres with the number of apartments increased to 35.
3. Car parking requirements are set out at Clause 52.06 of the planning scheme. Applying the standard rate set out in the relevant table, 110 car parking spaces would be required for the amended proposal. Applying the standard car parking rates in the table to the approved development, 111 spaces would be required. It is evident that there is very little difference between the approved and proposed situation.
4. A permit can be granted under the provisions of Clause 52.06 to reduce the amount of parking provided. The permit issued at the direction of the Tribunal already grants permission for a reduction in car parking. The extent of the reduction is not increased under the amended proposal.
5. The car parking requirement for a development is often determined following an empirical assessment of the actual parking demand. Mr Kiriakidis has carried out an empirical assessment and concluded that the 42 spaces to be provided would meet the demand generated by the amended development. On his assessment, 35 car spaces are required for the residents of the proposed apartments (1 per apartment); 7 for residential visitors (1 space per 5 apartments) and 15 spaces for the retail component (3.0 spaces for every 100 square metres of GFA). Accordingly, a total of 57 spaces would be required. Of these 16 would need to be accommodated on street. This was also the case with respect to the approved development. In effect, the changes to the development do not change the parking impacts.
6. The proposal involves a modified car parking layout and the use of mechanical stackers for the provision of some spaces. The use of stackers is becoming commonplace and should no longer be a matter of concern as a matter of principle. It is a technology that has been accepted for some time by the Tribunal and many Councils. W are satisfied that the car parking layout is acceptable

1. We find that the majority of the proposed amendments are satisfactory. These include the increase in the number of apartments; the replacement of the ground floor shop with a dwelling; the architectural detailing including the projections shown on the Malvern Road façade; the changes to the car parking layout and access arrangements including the effective widening of the laneway.
2. Our fundamental concern relates to the form of the proposed upper level. We find that it is too big. It should be reduced in size. This can be achieved by setting the fifth level further from Malvern Road so that it is stepped back a further 1.8 metres from the line of the fourth level below and the deletion of Units 34 and 35. We would be prepared to approve the fifth level subject to these changes. If Mr Cadden does not find these changes viable, an alternative would be to delete the fifth level altogether. If accepted by Mr Cadden, these changes (together with the extra screening) can be implemented by permit conditions.
3. We understand that these are significant changes. The applicant may not wish to proceed with some or all of the amendments because of our findings. Accordingly before coming to our final decision, we will give Mr Cadden an opportunity to advise us as to how he wishes the permit to be amended with respect to the fifth level; that is, with the changes that we require or its deletion. Alternatively, Mr Cadden may not wish to proceed with the amendment at all. The applicant is given 14 days to advise the Tribunal of his position.

[1] We have considered all submissions presented by the parties although we do not recite all of the contents in these reasons.

[3] Cadden v Stonnington CC [2009] VCAT 1215

[4] [2008] VCAT 353

[5] During the course of the hearing we noted a discrepancy between the floor plans and elevations with respect to the third level of the building. We agree with the Council that setbacks and dimensions shown on the floor plans should prevail. These show that the third level of the approved development setback 5 metres from the south boundary (setback taken at the south facing wall). This setback is repeated in the third level of the amendment plans. These is no change to the setback.