Within three months of the date of the amendment of the Permit in accordance with the VCAT decision in P1860/2015, 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 following plans:

• Plans TP.03 (Revision F), TP04 (Revision D), and TP05 (Revision D) - all endorsed on 14 November 2014; and
• S.87A plans TP06 (Revision G), TP07 (Revision F), TP07A (Revision B), TP08 (Revision E), TP09 (Revision E), TP10 (Revision F), TP11 (Revision F), TP12 (Revision E), TP13 (Revision E), TP14 (Revision E), TP15 (Revision E) - all with revision date of 29 October 2015 (Council date stamped 4 November 2015).

• The second floor plan amended to show the privacy screen along the western edge of the terrace adjacent to the family/dining room area to be reinstated with a height of 1.14m.
• 1700 mm high obscure glaze screening to the third floor study south and east facing windows (not including the south, west and north facing stair-well windows).
• Details of the external materials and finishes of the Plant Equipment Area, which must incorporate suitable acoustic treatment, to the satisfaction of the Responsible Authority.

There must be no roof level obstructions north and east of the third floor study (including flues, chimneys, television antennas and the like) other than the car park exhaust duct and lift over-run shown on the Edgard Pirrotta plans TP07 and TP07A Revision Date 29 October 2015 other than any relief vents if required by regulation.

Any skylights must be designed and constructed to the lowest profile consistent with regulations and must not exceed 400mm above the level of the tiled roof. There must be no skylights installed to the north or east of the third floor study.

Other than the third floor study and the plant and equipment area, the car park exhaust vent, lift over-run, skylights and relief vents, the height of the building (including all building elements including parapets) must be no greater than 41.56RL.

Setbacks to the north, south and east boundaries must be no less than those shown on the Edgard Pirrotta plans Revision Date 29 October 2015.

The height of the third floor study must be no greater than 44.66RL and the height of the plant and equipment area including all plant and equipment must be no greater than 42.56RL. There must be no objects or installations located on the third floor study roof.

1. The responsible authority is directed to amend the permit and issue an amended permit to the owner of the subject land pursuant to section 91 of the Planning and Environment Act 1987.
2. The responsible authority is directed to endorse amended plans reflecting the amendments to the permit.

Chris Canavan, QC and Peter O'Farrell, Barristers instructed by Best Hooper Solicitors.

• Amanda Ring (town planner) of SJB Planning
• Peter Roccella (visualisation) of Roccella Design Studio

As no-one sought to cross examine Mr Roccella, he was not called to give oral evidence.

Peter English, Town Planner of Peter English & Associates.

Ronald & Jasna Hay appeared in person, and were assisted in making submissions by Craig Barkla, Caisson Design Group.

John Carey, Solicitor of Minter Ellison appeared on behalf of Graeme & Suzanne Southwick at the commencement of the hearing.

Construction of a four storey apartment building comprising five apartments.

Application under Section 87A of the Planning and Environment Act 1987 - to amend the plans and conditions that form part of the permit.

Clause 32.08-4 to construct two or more dwellings on a lot on land within the General Residential Zone.

Clauses 9, 10, 11, 15, 16, 18, 21, 22.23, 32.08, 52.06, 55 and 65.

The land is a rectangular allotment, with a frontage to Trawalla Avenue of 22.25 metres, and a depth of 52.3 metres. The land is presently being developed with a three storey apartment building above a basement car park.

The Tribunal conducted an unaccompanied inspection of the site and surrounding area on 17 December 2015. None of the parties wanted an accompanied inspection to be undertaken in this proceeding.

1. The land at 4 Trawalla Avenue, Toorak (the 'review site') is presently being developed with a three storey apartment building. Relevantly, the entire top floor (second floor or third storey) of the approved apartment building contains one apartment. Charbord Constructions Pty Ltd (the 'Applicant'), on behalf of the purchaser of that second floor apartment, seeks changes to the endorsed plans and conditions to allow the construction of a third floor (fourth storey) consisting of a single room and terrace. Other changes are also sought to the layout of the apartment at the second floor, which are not contentious and were not the subject matter of submissions at the hearing. Following my own assessment, I endorse the layout changes proposed at second floor level, and now focus, as the parties did, on the proposed addition of a part third floor, and the proposal to change one section of screening to a second floor balcony.
2. The Stonnington City Council consents to the proposed changes to the plans and conditions, on the basis that the plans are further amended to detail additional screening to the building. The Applicant opposes those conditions and the additional screening sought by Council.
3. The proposed changes to the plans and conditions were originally opposed by four nearby residents. Prior to the hearing, one resident withdrew their objection, and another reached a consent position with the Applicant agreeing to further changes to the conditions of permit. Two nearby residents still oppose the proposed third floor, raising a number of concerns relating to the potential amenity impacts on their properties, and whether the construction of a four storey apartment building is consistent with the surrounding neighbourhood character.
4. The issues or questions for determination are:
   1. Is the proposed addition of a fourth storey is consistent with the character of the surrounding area?
   2. Will there be any unreasonable amenity impacts in terms of:
      1. Visual bulk
      2. Overshadowing
      3. Overlooking
      4. Noise
5. The Tribunal must decide whether the amendments to the permit and endorsed plans should be permitted. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Stonnington Planning Scheme, I have decided to allow the application for review, and direct that amendments occur to the existing planning permit. My reasons follow.

IS THE PROPOSED ADDITION OF A FOURTH STOREY IS CONSISTENT WITH THE CHARACTER OF THE SURROUNDING AREA?

1. Mrs Hird submits that the surrounding neighbourhood is characterised by mostly two-storey buildings, and that the proposed construction of a fourth storey on the review site will be in contrast to this existing neighbourhood character.
2. My inspection reveals that the neighbourhood surrounding the review site is developed with buildings that are predominantly of two and three storeys in height. In particular I note the existence of a large three storey building at 4 Trawalla Avenue, being immediately to the east of the review site. I also note that the apartment building immediately to the rear of the review site is an elevated two-storey structure, which has a similar height to the three storey building that is being constructed on the review site. I am therefore not persuaded that the existing neighbourhood character comprises a consistent element of two-storey buildings.
3. Also of relevance in a character assessment is what the Stonnington Planning Scheme says about the emerging character in this neighbourhood. The review site is covered by Schedule 11 to the General Residential Zone, which allows building of up to 12 metres in height, or 13 metres for sloping sites. Such heights will allow for three and four storey buildings to be developed in this neighbourhood. Sitting alongside this zone is a preferred character statement which fails to identify any guidance in relation to building height, other than that new buildings are to reflect the surrounding predominant scale.
4. As I have previously identified the review site is currently being developed with a three storey apartment building. An apartment building of this scale is entirely consistent with both the existing neighbourhood character as can be viewed on the ground, and the emerging future character as identified in the Stonnington Planning Scheme. The proposal that is before me is to create a fourth storey, which will consist of a single room and terrace, located centrally in the rear part of the site. The proposal is therefore not for a complete fourth storey. Further the part fourth storey that is proposed will be largely obscured by the levels below on views from Trawalla Avenue. The proposed part fourth storey will therefore have minimal if any character impact on views from the public realm.
5. The more significant character impact will be on those views from surrounding properties. As was evident both in my site inspection and on photographs tended at the hearing, a consistent characteristic of such rear yards is the dominant views that are gained to very large surrounding built forms. Due to the topography of the land, and the common approach on most properties to use extensive cut and fill, the heights of these dwellings when viewed from the rear yards of surrounding properties vary significantly. The only common theme is that views to dwellings on surrounding properties reveal large bulky buildings.
6. Having regard to the photomontages that have been prepared, I consider that the extent of scale and bulk presented by this proposal is in keeping with the character of built forms and their large scale that are visible from surrounding rear yards of properties. For these reasons I find that the proposed development of a part fourth storey on the review site is one that is entirely consistent with both the existing and emerging neighbourhood character.

WILL THERE BE ANY UNREASONABLE AMENITY IMPACTS?

1. Mrs Hird and Mrs Hay both made submissions in relation to the visual bulk impact of the proposed part fourth storey when viewed from certain parts of their properties. The rear of Mrs Hird's property is developed with an extensive area of secluded private open space, consisting of a full-sized tennis court, a large in-ground pool, and a large terrace area. Due to the boundary planting that occurs within Mrs Hird's property, views to the proposed part fourth storey will be obscured from some parts of the area of secluded private open space and visible from other parts. The parts of Mrs Hird's rear yard from where a view can be gained to the proposed part fourth storey are located some distance from the proposed works.
2. From these locations views can be gained to the sizeable buildings that exist in all directions. Having regard to the photomontages that have been prepared, it is evident that the height of the proposed part fourth storey from the review site will be no higher in proportional scale to those buildings that exist elsewhere to the perimeter of Mrs Hird's rear yard.
3. Likewise the part fourth storey will be viewed from the first floor balcony at Mrs Hay's property as one element of one building that is proportionally no higher than other surrounding built forms. Having inspected both of the adjoining properties, and considered the views provided in the photomontages, I find that the part fourth storey does not present an extent of built form that is either unreasonable in this context or which will present unreasonable levels of visual bulk to either of these nearby properties.

1. The proposed development of a part fourth floor will result in increased overshadowing between 9.00am and 10.00am to the adjoining property at 18 Grange Road. Mrs Ring gave evidence that the part of the side yard of that property which would be subject to additional overshadowing is not the principal area of secluded private open space. She also identified that the area to be subject to increased overshadowing is already subject to shadowing, in part from a boundary fence, and in the other part from existing canopy vegetation. For these reasons I am persuaded that the extent of additional overshadowing created by the proposed part fourth storey would not cause any unreasonable detrimental impact on this adjoining property.
2. I also note that the adjoining properties to the south of the review site will not be affected by any increased overshadowing from the proposed part fourth storey.

1. The proposed room at the fourth storey will have south-facing windows that will allow a view of nearby properties. As those south facing windows are setback more than nine metres from the southern boundary of the review site, Mr Canavan submits, and Ms Ring opines, that they are not required to be screened in any manner. The basis for this position is Standard B22[2] to ResCode, which requires:

A habitable room window, balcony, terrace, deck or patio should be located and designed to avoid direct views into the secluded private open space of an existing dwelling within a horizontal distance of 9 metres (measured at ground level) of the window, balcony, terrace, deck or patio.

1. The review site does not exist in a usual suburban context. The review site is surrounded by large properties, compared to usual suburban standards, which are developed with a mixture of large dwellings and private open spaces. For the purpose of an assessment of overlooking it is the context between the review site and the adjoining property to the south at 3 Lascelles Avenue that is most relevant. This property is developed at its rear with a full-sized tennis court, an in-ground swimming pool and expansive terraced areas.
2. I accept that the intent of Standard B22 is to restrict and not eliminate any potential overlooking from one residential property to another. That intent is captured in the Overlooking objective, which is:

To limit views into existing secluded private open space and habitable room windows.

1. I also accept that, in most typical suburban locations, the standard of screening windows within 9 metres of a sensitive location will be sufficient to achieve the objective. I am not persuaded, however, that the strict application of the standard will of itself always achieve an appropriate outcome. In making this statement, I realise that I am stepping into a much debated area as to whether satisfaction of the Rescode standards is sufficient of itself in order to demonstrate compliance with the relevant objective.
2. My view is that compliance with a standard will not always be sufficient in order to achieve an appropriate planning outcome. For example, compliance with the side and rear setbacks standard (B17) will not always appropriately limit the impact of visual bulk on a residential interface. Further, compliance with the building height standard (B7) will not always achieve a building of a height that respects the surrounding neighbourhood character. Similarly, not screening windows that are located further than 9 metres from a boundary will not always appropriately limit views of nearby secluded private open space. What is required is an appreciation of the context of a development site, and a careful assessment of whether an approach that is different from the standard should be adopted, in order to achieve an appropriate and reasonable outcome.
3. The context that is before me in this proceeding is one that demands an outcome different to the approach set out in the overlooking standard. That is because without screening, the fourth floor windows will provide an unobstructed view of most of the expansive area of secluded private open space at the rear of 3 Lascelles Avenue. I consider that would not be an appropriate or reasonable planning outcome. Indeed I consider that would be an outcome that is contrary to the overlooking objective. What is required here is a contextual response to the unusual suburban context that surrounds the review site, where one property is developed with expansive areas of secluded private open space that would be viewed en masse by the proposed fourth floor. This contextual response supports the extent of screening sought by condition by Council.
4. I note it is the evidence of Ms Ring, in response to questions put by Mrs Hird, that the screening sought by Council along the southern wall of the fourth floor will not impact on the internal amenity of this fourth floor. That is because the single room on this floor has been purposefully designed to take in the spectacular city views that are available to the north-west. Therefore, even with the addition of screening to protect views to 3 Lascelles Avenue, I find that the fourth floor level will still have a higher than reasonable outlook, daylight receipt and overall level of internal amenity.
5. Mrs Hay seeks the extension of the screening as required by Council to also cover the two windows to the stairwell in the south-eastern corner of the proposed fourth floor. Mrs Hay seeks such a level of screening to prevent views to the first floor balcony of a separate dwelling located in the rear of her property. I am not persuaded that such additional screening is reasonable and appropriate. I make this finding for the following reasons. Firstly the windows that are sought to be screened provide daylight to the stairwell, and as such people moving behind these windows will be focusing on moving up and down the stairs rather than taking in the outlook of a balcony removed by two properties. Further, due to the positioning of the stairs relative to these windows, people on the stairs will be at a lower relative height and therefore have a partly restricted view in any case.
6. Secondly, the views that can be gained are to a balcony that does not form part of the principal area of secluded private open space on Mrs Hay's property. The principal area of secluded private open space is the outdoor area at ground level, adjacent to an indoor swimming pool. Apart from the occasional glimpse, these areas are protected from overlooking by the roof to the indoor swimming pool. The balcony at first floor is relatively narrow and while one could sit on this space, I find that I must treat this space differently to one's principal area of secluded private open space.
7. The windows that about the stairwell also do not need to be screened to prevent unreasonable overlooking to 3 Lascelles Avenue. Due to the angle involved, any potential unreasonable overlooking from these windows to 3 Lascelles Avenue is diminished by the placement of the rooftop plant area in the foreground. The position of this rooftop plant area, combined with the other observations I have made about the likelihood of people dwelling on the stairs and taking in the wider view, means that there is no need to screen the windows to the stairwell to prevent unreasonable overlooking to 3 Lascelles Avenue.
8. For these reasons I support the extent of screening that is proposed to the windows along the southern wall of the proposed fourth floor, as drafted in a condition proposed by Council. While I understand that this condition was not supported by Council officers, but rather implemented by Councillors, that does not diminish the merits of the contested proposed condition.
9. The final overlooking issue relates to a proposal from the applicant to reduce the previously approved height of screening along part of the eastern side of the balcony on the second floor. The proposal is to reduce the height of the balustrade from 1.14 to 1.0 metres. It was put that this reduced height coupled with the location of a planter box on the inside edge of the balustrade, and a horizontal shelf on the outer edge of the balustrade, will provide a sufficient level of screening for the adjoining property to the east. A sightline diagram was prepared at drawing TP.15, which shows that unreasonable overlooking will not occur from this balcony. Unfortunately this sideline diagram is drawn in a manner where the viewing location is not as close to the edge of the planter box as it might be. I have undertaken the process of redrawing the sightline from a position at the inside edge of the planter box. My redrawn sightline demonstrates that the reduced height of the balustrade as proposed by the applicant will allow a view into the first floor windows of the adjoining dwelling to the east. For this reason I support the Council's request that the height of the balustrade be maintained at the presently approved height of 1.14 metres.

1. Both Mrs Hird and Mrs Hay raise concerns in relation to the potential noise that could be omitted from the rooftop plant deck to their respective properties. In response to this concern the Applicant has agreed to a condition that will require the screen that is proposed to surround the plant deck, to be acoustically treated to Council's satisfaction. I have no reason to doubt that such an approach, and approval by Council, will achieve anything but an appropriate level of acoustic protection for the nearby properties. This does not mean that there will be no acoustic impact, but rather that any acoustic impact that does occur will be reasonable and appropriate, and in line with the relevant EPA regulations.

1. For the reasons explained above, the Application for Review is allowed. The permit is to be amended in the manner set out in the order.

[1] 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.

[2] As set out at Clause 55.04-6 of the Stonnington Planning Scheme.