1. Under clause 64 in schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, permit application no.PP10/01045 is amended as follows:
   • (a) Plans identified as "Revision C VCAT issue" dated 16 September 2011 are substituted as the application plans.
2. The decision of the responsible authority in relation to permit application no. PP10/01045 is set aside. A permit is granted and directed to be issued for land at 10, 12, 12A-B, Albert Street and 34, 36 and 38 Lilydale Grove Hawthorn East. The permit allows:
   • (a) Use and development of the land for not more than 116 dwellings and retail premises;
   • (b) Reduction in car parking required under Clause 52.06 of the planning scheme, and
   • (c) Waiver of the requirement to provide a loading bay,

1. The permit must contain the conditions set out in Appendix A to this order.

Mr C Townshend, SC and Ms N Collingwood, Barrister, instructed by best Hooper Solicitors.

Mr J Kiriakidis, Traffic Engineer, GTA Consultants.

The proposal involves the demolition of all buildings on the land and the construction of a multi-storey development to provide for 116 apartment style dwellings, and one retail premises at ground level fronting Lilydale Grove. Two basement levels are also proposed providing for 128 car parking spaces. The development takes on an 'L' shape configuration following the shape of the site. The development rises to a height of seven storeys above ground level. The building is designed to step back from the Albert Street frontage and the interface with residential properties as its rises in height.

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

Clause 31.02 - Use of land for a purpose specified in Section 2 of the land use table to the B2Z (Accommodation and Retail Premises)

Clause 32.01-4 - Construction of more than one dwelling on a lot in the RIZ.

Clause 52.06-1 - Reduction in standard car parking requirement.

Clause 52.07- Waiver of loading bay provision for retail premises.

Clauses 11, 13, 15.01, 16.01, 17, 18, 19, 21.05, 21.07, 21.08, 22.03, 22.07, 45.03, 52.06, 52.07, 52.34, 52.35 and 65.

The land comprises several lots which combine to create an 'L' shaped site with frontages of about 30.5 metres and 28 metres to Albert Street and Lilydale Grove respectively. The land has an overall area of about 2911 square metres and is occupied by various buildings including single and double storey older style apartment buildings fronting Albert Street and single storey warehouses and a dwelling fronting Lilydale Grove. Three properties occupied by single storey dwellings fronting Albert Street comprise the infill to the land's 'L'shape.

Contextually the land is at the interface of a commercial/industrial area located to the south and west, and residential area located to the east and north. A railway embankment separates the site from the residential hinterland further north. The land is about 250 metres from the Auburn Village neighbourhood activity centre and about 1 km from the Camberwell Principal Activity Centre. Public transport within walking distance of the site includes train, tram and bus services.

1. Connect Project Management Pty Ltd seeks a permit to redevelop a large 'L' shaped site with an area of about 2911 square metres with a seven storey building providing for 116 apartment style dwellings, a retail premises and car parking. Boroondara City Council has refused the permit application. Connect has lodged this application with the Tribunal to review the Council's decision and seeks an order directing the grant of a permit.
2. The Council considers the scale, height and bulk of the building is excessive for the land and the neighbourhood; it would dominate the streetscape and present unreasonable bulk to neighbouring residential properties and public domain. The Council also says that the proposal fails to respond to the scale and style of neighbouring commercial development and prevailing pattern of development in the area; casts unreasonable shadows over the adjacent laneway; result in unreasonable overlooking and does not respond appropriately to its Activity Centres Strategy[2].
3. The respondent objectors support the Council's opposition to the proposal for similar reasons. Boss Properties also maintains that the building is too high and has not responded appropriately to the interface with the proposed development which is has permission to build on the neighbouring property to the west. Residential objectors are also concerned about parking and traffic as well as the impact of the proposed sub-station on Albert Street.
4. The Council and objectors contend that the proposal is an overdevelopment and submit that the Tribunal should affirm the decision to refuse the grant of the permit.
5. Connect submits that a permit should be granted as the proposal responds appropriately to the attributes of the land as well as the strategic and physical context. It also contends that the development responds appropriately to the streetscape, public realm and neighbouring properties and would not result in unreasonable impacts on the amenity of neighbouring properties and the area generally. Connect requests that the Council's decision should be set aside and a permit be issued for the proposal.
6. The issues to be decided are:
   • What is the strategic context of the land?
   • Is the height and scale of the development acceptable having regard to the strategic context?
   • Is the interface with the neighbouring property to the west acceptable?
   • Are the traffic impacts acceptable?
   • Is enough parking provided?
   • Will the proposal result in unreasonable overlooking?
   • Are the shadow impacts acceptable?
7. I must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Boroondara Planning Scheme, I have decided to grant the permit. My reasons follow.

1. There is little doubt that the subject land presents itself as a good site for redevelopment.
2. The land comprises a number of smaller lots that Connect has been able to assemble to create a single parcel for development. The development site created has an area of 2911 square metres. It is a large site. In principle, larger sites are able to accommodate more intense development compared to a collection of smaller sites of the same area. Single ownership, larger land area, better proportions[3] as well as reduced need for setbacks[4] and multiple access points are factors that enhance development potential and opportunity for increased yield.
3. Most of the buildings on the land are somewhat unremarkable. Mr Fisher notes that one of the buildings to be demolished is a period home. However, this dwelling is not protected by heritage controls. A planning permit is not required for its demolition. It can be demolished at any time.
4. There is no significant vegetation on the site. There are no awkward or difficult easements to contend with. The slope is moderate and is clearly capable of being managed.
5. The land has the advantage of having two street frontages, both of which provide opportunity for access. All urban services are available. Although Mr Fisher submits that the infrastructure is constrained, no evidence submitted to support the view that it cannot accommodate a development at the intensity proposed.
6. Contextually the land is well located. It is within walking distance of a neighbourhood activity centre and good public transport services. The Camberwell Principal Activity Centre is located about 1 km away.
7. All these factors support the view that the land presents itself as a good candidate for redevelopment.
8. While the land has many attributes that favour its potential to be redeveloped, that is not to say that such potential is unfettered. In this regard, the land is located at the interface with a residential area. It has a strong interface with the 3 residential properties on west side of Albert Street. It also has an interface with dwellings fronting the east side of the same street. I regard these as sensitive interfaces. The interface with the residential area to the north is less sensitive given the separation created by the raised railway embankment. The land is also located adjacent to a property that is to be redeveloped for a high-density housing development. Consideration needs to be given to the interface with that development. Lilydale Grove is not overly wide and kerbside parking in the immediate area appears to be in relatively high demand.
9. I accept that these factors require careful consideration. However, in principle, they do not constrain the land to such an extent to render it incapable of supporting a substantial and intense development.
10. Given all of the above, it is not surprising that, by and large, the Council and residents accept that the land offers an opportunity for redevelopment. Mr Holdsworth concedes that it is a good site while some residents clearly submit that they do not oppose redevelopment of the land per se.
11. The key issues in this case do not revolve around whether the land should be redeveloped. That is agreed. The issues in this case revolve around the intensity of development proposed. However, in deciding whether the intensity of development is acceptable, it is appropriate to firstly acknowledge that the physical attributes of the site and its context allow for a substantial development. Connect has assembled a good site for development. It is in this context that I turn to the matters in dispute.

1. While the land has physical attributes that make it suited to being redeveloped in an intensive way, guidance as to the appropriate intensity needs to be derived from the planning scheme's policies and provisions. Unfortunately, the provisions of the planning scheme, as they currently stand, do not provide a prescriptive answer as to what the intensity of development should be in this case. For example, the zone provisions do not set a height limit, nor is there an overlay in place which sets out requirements with respect to building height, setbacks etc. Accordingly, it is necessary to understand the strategic/policy context that applies to the land.
2. As things stand in the planning scheme, the subject land is located within the sphere of influence of a neighbourhood activity centre. Relevant objectives and strategies in the State Planning Policy Framework [SPPF] include encouraging a diversity of housing types at higher densities in and around activity centres[5]; encouraging higher density housing in and around Neighbourhood Activity Centres that is designed to fit the context[6] and to locate new housing in or close to activity centres and employment corridors that offer good access to services and transport.
3. The Local Planning policy Framework [LPPF] builds on the strategic directions given in the SPPF. Specifically at Clause 21.07, the MSS objectives include providing a mix and range of housing types and forms with increase residential development opportunities (including higher density development) in and around commercial centres and other strategic locations. Under the framework plan in this clause, the land is located within a "mixed use corridor" where "office, commercial, manufacturing and high density residential" is envisaged. It is clear that the mixed use corridor is an important strategic location to which intense development is directed. In this context, it is clear that both the state and local planning policy frameworks support change to the urban form in this locality.
4. The site is partly zoned Business 2 [B2] and partly Residential 1 [R1Z]. The purpose of each zone is different in that offices and associated commercial uses are encouraged in the B2 zone with housing and a limited range of non residential uses encouraged in the R1Z. While the zone purpose is different, there is one common element, that is, that it is the purpose of both zones to implement state and local policy as set out in the planning scheme. In this regard, the policies in the scheme clearly envisage intense residential development in this location given the proximity to activity centres, public transport and the mixed use corridor.
5. It is true that planning policy and the purpose of the R1Z call for development that is respectful of neighbourhood character. I would make two observations about this. First, the notion of 'respectful' development does not mean more of the same or no change to what exists. Second, the notion of what is acceptable must embrace the strategic direction set out in the planning scheme. There is no point having strategies directing high-density residential development to the mixed-use corridor if ultimately the expectation is that new development in that location must be in keeping with the form of what exists. The reality is that the policy context, in both the SPPF and LPPF, encourages development that is different and more intense than what exists. The policies call for change.
6. The Council is working towards introducing such prescription through its "Activity Centres Strategy" [the strategy] that it adopted in June 2011. Amongst other things, the strategy includes part of the subject land within the Burwood/Camberwell Road Enterprise Corridor, an area where more intense development is encouraged and buildings between 2 and 8 storeys may be accommodated. Under the strategy, it is envisaged that this corridor will evolve over time as Council's premier live/work enterprise corridor and "...will play an integral role in accommodating a share of the forecast residential growth anticipated in the municipality". Further, the strategy states that the preferred future role envisaged is to provide for "Mixed use developments comprising retail on the ground level, and commercial and high density residential on the upper levels will occur throughout the corridor."[7]
7. It is clear that the strategy is seeking to bring about more intense development in the corridor. To some extent, steps to deliver the outcome envisaged under the strategy are underway with the granting of a permit for the redevelopment of the Boss Properties site to the west of the subject land with an eight storey apartment building[8]. The Boss properties development clearly represents substantial change.
8. Under the strategy, part of the site (fronting Lilydale Grove) has been included in "Built Form Area 3" of the corridor which provides for buildings of 5 storeys/19 metres in height, with the balance of the land (fronting Albert Street) excluded from the area covered by the strategy albeit that some parts are within the B2Z[9]. The strategy provides no guidance as to how sites that are partly within and outside the built form areas are to be treated, although it states that a suitable transition to neighbouring residential areas should be provided.
9. This is unfortunate and, in my view, an area of concern with respect to the strategy as it applies to the area within which the site lies. The zone boundary as the "line" between the built form areas to be developed under the strategy and residential areas not covered by the strategy creates a tense and somewhat difficult interface situation. While the strategy envisages the provision of a suitable transition in built form, the reality is that the built form outcome envisaged in Area 3 will form part of the context applicable to the Albert Street dwellings, particularly those on the west side south of Lilydale Grove. That context entails five storey/19 metre high buildings juxtaposed adjacent to single storey houses. Although zoned R1, given the strategic context and juxtaposition adjacent to high buildings envisaged under the strategy, the expectation for development on those properties would not be the same as those located somewhere in the residential hinterland.
10. I also find it difficult to understand the rationale for rezoning the Albert Street properties from B2Z to R1Z thus making the interface issue more problematic. The more pragmatic approach would be to include the Albert Street properties in the area covered by the strategy. No rezoning is required if residential use is envisaged. As the proposal in this application shows, there is nothing in the planning scheme's provisions to prevent an application being made and the granting of a permit for seven storey development on land zoned R1Z if such development is supported by policy and the other relevant matters are dealt with in an appropriate way.
11. The strategy has been adopted by the Council and it is therefore a matter to be considered[10]. However, it has no official status under the planning scheme nor is it the subject of an amendment to the planning scheme which is significantly advanced. Given this, the approach adopted by the Tribunal in Sheehan v Boroondara CC[11] is appropriate in that it is a matter to be considered as it sets out the Council's strategic thinking for the area, but at this point should not carry influential weight given that its progression into the planning scheme has not reached an advanced stage. Further, there are some difficult issues that require consideration, particularly the interface issue which I discussed above.
12. So what does this mean?
13. My analysis of the policy context is that the subject land is located in an area where planning policy, at both state and local level, envisages an increase in the intensity of development. It is not an area where the expectation should be that new development will match or defer to built form that exists. Rather, it is an area where substantial change is envisaged. This is made clear at clause 21.07 where the framework plan identifies the land as being located in an area where high density residential is directed. This is so even if part of the land is within the R1Z. A development comprising high density residential development is clearly supported by policy on this site.

Is the height and scale of the development acceptable having regard to the context?

1. The issues in dispute clearly revolve around whether the built form is acceptable. The Council and the objectors do not take issue with the proposed land use, albeit that a permit is required to use the land for retail and residential purposes. The height and scale of the proposed development, and the consequential bulk presented to immediate neighbours and the public realm are clearly the issue.
2. In deciding whether the form of a proposed development is acceptable, the urban design principles at Clause 15.01-2 make clear that consideration must be given to both the physical and strategic context. The land is located in an area where low scale buildings have been constructed. However, it is an area earmarked for change and more intense development under policy. Accordingly, the response to the physical context must embrace and be informed by the outcome envisaged by the strategic context.
3. The argument advanced by the Council, that a proposal for a seven storey building on this site is inappropriate because there are no other buildings of similar height in the area cannot be sustained given that the Council's own strategic thinking for this area envisages tall buildings. If that argument is to prevail, then buildings such as that now permitted on the Boss Properties land could not occur. The reality is someone has to go first. Further, there must be an understanding that in areas earmarked for change, such change will probably not be immediate and will evolve over time. This view is supported by the Council's strategy for the corridor.
4. The Council's Residential Urban Character Study -1996 (RUCS) is also of limited relevance in this case. Under the RUCS, the land is located within Character Area 82. This is a large area that extends well beyond the railway line to the north. I do not agree with Mr Holdsworth's assessment that the character of that part of Area 82 where the site lies, between Burwood Road and the railway line is typical of the balance of Area 82. The presence of commercial properties and proximity to taller buildings, both existing and proposed, has an impact on the character south of the railway line. The residential area north of the railway line is more pristine in terms of its residential context and has, as Mr Holdsworth puts it, high architectural integrity. The difference is readily apparent when one visits the area. The difficulty with the RUCS does not relate to its age per se, but rather that it fails to acknowledge this difference and does not deal with issues such as the change envisaged for this part of the area under the MSS, and if ultimately incorporated into the scheme, the Council's strategy for the area.
5. The consolidation of properties results in a departure from the predominant "fine grain" pattern displayed by existing residential development on Albert Street. However, this departure is not inappropriate given what is envisaged for this area. While the three dwellings to the north of the site on Albert Street can remain, the reality is that the strategic direction set by the Council makes them candidates for redevelopment irrespective of whether rezoning occurs.
6. The overall height of the proposed development clearly exceeds the prescriptive five storey/19 metre standard set out in the strategy for Lilydale Grove. As noted earlier, the strategy does not specify a height for Albert Street. In such circumstances policy, context and the qualities of the design response need to be assessed in deciding whether the response is appropriate.
7. There is no doubt that what is proposed involves a very large building. It is clearly different, in terms of height and volume to what exists in the area. However, it is also relevant to acknowledge that the development is not comprised of two, seven storey high rectangular boxes positioned in an 'L' shape. The building design is far more sophisticated than this.
8. The overall height of the building rises to an RL of 65. Given the slope of the land, the measurement of the building height varies at different points. However, when an average is taken, the overall height of the building rise to a height of 23.4 metres on Lilydale Grove. This exceeds the 19 metre height for Area 3, as set out in the proposed strategy by about 4.4 metres. The building presents 22.5 metres to Albert Street. The strategy does not set out a height for buildings on Albert Street because it does not include those properties.
9. Given the status of the strategy, is appropriate to be cautious about applying prescriptive requirements set out in it as binding limits that fetter discretion. The height limits do not apply. Accordingly, what needs to be assessed is whether the height is acceptable having regard to the context and the design response.
10. As I have noted earlier, the design response does not involve two rectangular boxes. The elevations do not convey the true appearance of the proposed building as they do not allow for perspective. The development has been designed to step back at various points as it rises in height. This will have an impact on what can be seen from various vantage points.
11. In relation to Lilydale Grove, the building presents a four storey podium to the street with the three levels above setback away. The height of the podium, at about 14 metres, is higher than the 11 metres being recommended under the strategy, but the three levels above are setback about 3 metres as required. Given the streetscape context where change is envisaged and permitted, and the site is located opposite a railway embankment, I do not accept that a reduction in the height of the podium is necessary. Variations from site to site will occur. At four storeys, the podium maintains a pedestrian scale. A variation of one storey above or below the podium of a neighbouring building is not unacceptable in this context.
12. It is relevant to also consider the form of the building and that this part of the site is largely located in the five storey/19 metre area under the strategy. While the building is about 4.4 metre higher, than the proposed 19 metres, the upper levels are also well setback. A stepped setback, increasing to about 16 metres, to the rear of the Albert Street properties, is proposed. The setback provided is consistent with that required under Standard B17 at Clause 55. To the extent that there are incursions into that setback, they are minor and of no consequence. Given the design of the building and the context, the extent to which the building is visible from neighbouring backyards, and the bulk presented, is acceptable.
13. The proposed building is also lower than the development approved on the Boss Properties site. While I understand that the redevelopment of that site complies with the overall height limit that applies under the strategy, this does not mean that all subsequent development is bound by the strategy. Each proposal must be considered on its own merits having regard to the circumstances at hand. The difference in height between the Boss properties development together with the stepped setbacks to the east result in a suitable transition to the rear of the residential properties on Albert Street.
14. With one storey removed, the building would have a height of about 20.4 metres. Although over the 19 metre height set out in strategy, the extent to which it would be so would also be minor and of no real consequence. The uppermost level could be removed by condition. However, such a change needs to be justified. A strategy which has not yet gone through a process that enables it to enjoy the stats if being "seriously entertained" should not set a binding limit if it can be demonstrated that the response is appropriate.
15. In relation to Albert Street, the lower four storeys of the building are 4.5 metres from the street and act as a podium supporting the three levels above. The setback area is to be landscaped. In my view, with a landscaped setback is not an unreasonable response to the pedestrian scale. The three levels above are stepped back a further 4.5 metres (9 metres in total) with the uppermost level stepped back 16 metres from the frontage. These setbacks allow the upper level to read as recessive elements. While views to the 4th and 5th storeys will be possible from Albert Street, the uppermost level is setback a significant distance and limited views only available, mostly from a distance.
16. It is also relevant to consider the response to the interface with No 8 Albert Street, the most proximate residential neighbour. Again the podium has been designed to step back from its single storey neighbour, with ground and first floor setback 4 metres from the common boundary, with the setback increasing to 9 metres for the next four levels with the uppermost level setback over 18 metres. The ground level setback is to be landscaped. Again, the setback of the uppermost level is significant. It will be largely obscured from close range views by the levels below. The extent of incursion into the side setback required under Standard B17 is greater at this interface. However, the built form is located to the south and therefore does not give rise to issues of overshadowing or loss of sunlight. Further, the primary outlook from the backyards is to the west.
17. The positioning of the substation within the setback to Albert Street is a poor element of the design response. While I accept that the substation housing will be relatively low, the front setback, particularly at the interface with a residential neighbour, should be allocated to landscaping. This is a big site, offering substantial opportunity for development. It is difficult to see why a piece of infrastructure of this type could not be appropriately located elsewhere on the land. The location of the sub-station is a matter of detail and can be dealt with by permit conditions. Subject to this change I am satisfied that the landscaping proposed in Mr Fitzgerald's plan as part of this development is satisfactory.
18. Mr Fisher submits that the building will be ugly. I accept that it will be big, but that does not make it ugly. The architectural quality of the building is of a good standard, noting Mr Holdsworth's view that the general standard of the architecture is high.
19. There is no doubt that the proposed building is large. It is will clearly evident. However, it must be considered in the context that the site is in an area earmarked for change and more intense development. As development in accordance with policy occurs, any differences in height and scale will not be significant. Importantly, I do not consider the extent to which the height exceeds that set out in the strategy will compromise the ability for the strategy to be implemented should it ultimately be incorporated into the planning scheme in some way.
20. I conclude that, in principle, the height and form of the building responds appropriately to the context.

Is the interface with the neighbouring property to the west acceptable?

1. Boss Properties has two concerns about the proposal. The first is that the height that which is stipulated in the Council's strategy for the area is exceeded. The second relates to specific concerns about the relationship of boundary walls, windows and balconies adjacent to the common boundary between the Boss Development and that proposed in this case.
2. I have already set out my findings with respect to building height earlier in these reasons. Suffice to say that I have considered the height limits envisaged under the strategy and notwithstanding that the height is greater than envisaged under the strategy, the proposal is acceptable.
3. Commencing at the Lilydale Grove frontage, the Boss Properties development will result in a 13.6 metre long wall along the common boundary with the subject land. This is less than the 15.2 metre wall proposed on the same boundary under this proposal. The boundary wall of the proposed building would therefore go about 1.6 metres past the line of the wall of the Boss Properties development.
4. The boundary wall occurs up to the third floor level after which it is setback off the boundary. On my assessment, the boundary wall would intrude adjacent to apartments 14 on the first, second and third floor levels. The extent of the intrusion is about 1.6 metres. In the case of apartment 1-14, the wall would be located adjacent to the narrow part of terrace and would not block the east facing window of bedroom 1. The wall would also not intrude on what is the wider more usable part of the terrace. With respect to apartments 2-14 and 3-14, the wall would not block the bedroom window. There are no terraces to consider at these levels. The boundary wall will have an impact on the terrace apartment 4-11, but it will be of single storey height. I do not regard the extent to which the wall protrudes past that of the Boss Properties development to be unreasonable.
5. I have concerns about the balconies to apartments 1.2.03, 2.2.03 and 3.2.03. These balconies extend to the boundary. There is a need for 1.7 metre high screens on the boundary to maintain privacy. I am not persuaded that this aspect of the development has been resolved satisfactorily. The balconies to these three apartments should be reduced in size to provide for a 1 metre setback off the common boundary. This is similar to the approach taken on the Boss Properties development where balconies to apartments 2-14 and 3-14 are a similar distance from the common boundary. This allows for equitable development rights as envisaged under the Guidelines for Higher Density Residential Development. This change can be implemented by permit conditions.
6. Subject to this change, I find the interface with the property to the west to be acceptable.

1. The Council and Boss properties do not take issue with traffic impacts. However, the resident objectors are concerned about the extra traffic generated by the proposal and whether satisfactory access is available via Lilydale Grove.
2. Mr Kiriakidis estimates that the proposed use of the land generates about 584 vehicle trips per day, of which 60, or roughly 10 per cent would occur in each peak hour. Given the street layout, Mr Kiriakidis envisages that traffic would mainly access the site via Albert Street, with a relatively small proportion via Montrose Place.
3. There is no doubt that as development envisaged under the Council's strategies for area occurs, either in line with the current MSS or the strategy, there will be an increase in traffic in this area. Proximity to facilities and services, including public transport will mitigate the impact to some extent, but it is inevitable that there will be increased traffic.
4. The question here is whether the traffic associated with this proposal can be accommodated.
5. Given the distribution of traffic forecast by Mr Kiriakidis, it is likely that most vehicle movements will be directed to Albert Street. The increase in traffic along the eastern end of Lilydale Grove and Albert Street would be around 500 vpd. The main impact will be during the peak hour period.
6. The traffic generation has been reviewed by the Council's traffic engineer and found that it can be accommodated. This is consistent with Mr Kiriakidis' assessment.
7. While I expect this increase to be noticeable, I am satisfied that it is within the design capacity of both roads and its can therefore be accommodated.
8. An issue arose during the hearing as to whether satisfactory sight lines would be available for vehicles leaving the basement car park into Lilydale Grove. This is because the Boss Properties development is to be constructed to the common boundary and the provision of sight triangles in line with the relevant Australian Standard are not provided. A similar issue with respect to sightlines arises at the laneway to Albert Street. This is unsatisfactory.
9. In response, Connect suggests the inclusion of permit conditions which require the provision of a red light warning system and convex mirrors to be installed to provide drivers leaving the basement with visibility as to pedestrian activity.
10. Ideally, the developers of the Boss Properties land and the subject land would come to some arrangement to provide for sightlines. This would mean some changes to the boundary wall to allow for permeability. Both developments would need to provide this. As the permit for the Boss Properties land has been granted, that developer cannot be compelled to do this, only encouraged to do so by this Tribunal and the Council. Ultimately, if that arrangement cannot be accommodated the solution put forward by Connect is acceptable. It can be implemented by permit conditions.

1. From my observations, on street parking in the area is in high demand.
2. The proposal makes provision for 128 car spaces within the development, of which 116 are for future residents, 10 for visitor and 2 for the retail premises.
3. The retail premises are relatively small and I accept that they will serve staff demand. Like in most commercial areas, customers would seek parking in the public realm.
4. I also accept that the provision of 1 space for each apartment is satisfactory. This accords with the relevant standard under Clause 55, B16. It is an appropriate standard for smaller apartment style dwellings of the type proposed.
5. Ten spaces are to be provided for visitors, 4 less than what is required based on the surveys relied on by Mr Kiriakidis. The requirement for 14 spaces is based on a peak demand. For the most part, demand for visitor spaces will not require the peak number. Further, peak demand is likely to occur outside business hours when spaces for nearby workers etc are not required.
6. The overall shortfall in visitor spaces is small. On reviewing Mr Kiriakidis evidence, I am satisfied that this shortfall can be accommodated within the surrounding street network.

Will the proposal result in unreasonable overlooking?

1. The Council and objectors submit that the proposal facilitates unreasonable potential for overlooking of residential properties at 4-8 Albert Street. The Council accepts that overlooking issues can be dealt with by permit condition.
2. Connect has taken some measures to reduce overlooking through the provision of screening devices to a height of 1.7 metres to various balconies within the development.
3. While Mr Govenlock expresses the view that the screening of more balconies is not required as they are at least 9 metres from the nearest neighbour, I do not agree.
4. The northern elevation of the southern building has a number of windows and balconies facing north toward No 8 Albert Street. In my view, these are located at the cusp of what may be acceptable under the relevant standard at Clause 55 given the 9 metre separation. However, given the number of balconies and windows, potential for unreasonable overlooking exists.
5. I find that the north facing balconies which are about 9 metres from the common boundary with the secluded open space of No 8 Albert Street should be screened to maintain reasonable privacy. This is because balconies tend to be used as active spaces. This will be generally at the upper levels, but not the top level which is well setback. I do not consider it necessary for bedroom windows to be screened in this context.
6. In relation to the Lilydale Grove building, satisfactory screening has been provided at the lower levels which are more proximate to residential neighbours while the upper levels have been setback a significant distance.
7. The additional screening required to the northern elevation of the southern building can be implemented by permit conditions.

1. The Council and resident objectors contend that the proposal will result in unreasonable shadow impacts.
2. On this point, consideration needs to be given to the impact on the public realm as well as residential properties.
3. The council contends that the extent of additional shadow over the laneway to the south of the site is excessive and unreasonable having regard to the parameters of the Design Guidelines for Higher Density Housing.
4. The proposed development will cast shadows over the laneway and the rear of Burwood Road properties.
5. The laneway is narrow and serves a utilitarian purpose; vehicle access. It is not a primary pedestrian thoroughfare. It is likely that with any significant redevelopment of the subject land, shadows will be cast to the south. It is likely that the laneway will be shadowed even if the height of the building is reduced by half. Further, the Burwood Road properties are commercial in nature and candidates for redevelopment with multi-storey building under the Council's strategy. The extent of overshadowing is not unreasonable in these circumstances.
6. The assessment of impacts on residential neighbours is based on shadows cast at the equinox between 9.00 am and 3.00pm. The diagrams show that shadows from the development t would not intrude on neighbouring residential properties to the east until after 2.00pm. The standard which applies to residential areas has been met. Accordingly, I find that there would not be unreasonable overshadowing of neighbouring properties.

Do any other matters warrant rejection of the proposal?

1. Several other matters were raised in submissions with respect to noise, litter, disturbance during construction, possibility that foundations of buildings on neighbouring properties would be undermined and loss of property value. None provides the basis for rejecting the permit application.
2. Noise generated by the activities on the land will either be regulated (eg: machinery such as air conditioning) or will comprise noise that is part and parcel of residential activity. I am unable to come to the conclusion that the building would act as a sound shell and therefore bring about noise problems.
3. A condition requiring a waste management plan to be prepared and implemented to the satisfaction of the Council is proposed.
4. It is inevitable that construction of a large project will create some inconvenience. This is not a basis to reject an appropriate proposal. The construction impacts can be managed and a condition requiring an appropriate construction management plan to be prepared and implemented can be included on the permit.
5. The potential impact on the foundations of neighbouring properties is dealt with under the Building Approval.
6. It is often claimed that a proposal will have an adverse impact on property values. No attempt was made to show that this would be the case.
7. I am also satisfied that the proposed dwellings will provide satisfactory amenity. While some concerns were raised about the inability to provide cross ventilation in some apartments, the extent to which this is so is not sufficient to warrant refusal of the proposal or changes to the design.

1. The land presents itself as a good redevelopment opportunity in an area of strategic importance. The land is located within a mixed use corridor under the scheme as its stands or the Burwood/Camberwell Road Enterprise Corridor under the strategy. High density residential development is envisaged under either policy scenario. This brings with it an expectation of change.
2. For the reasons set out above, I conclude that the proposed development is appropriate and responsive to its context. As such a permit is granted. The permit will contain conditions, largely as set out in the Council's draft conditions, but with changes discussed in these reasons and further refinement having regard to the submissions made at the hearing.

10, 12, 12A-B, Albert Street and 34, 36 and 38 Lilydale Grove Hawthorn East

(a) Use and development of the land for not more than 116 dwellings and retail premises;

(b) Reduction in car parking required under Clause 52.06 of the planning scheme, and

(c) Waiver of the requirement to provide a loading bay,

1. Before the development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and three (3) copies provided. The plans must be substantially in accordance with the plans identified as "Revision C VCAT issue" dated 16 September 2011 but modified to show:

1. A minimum 2.2m clearance must be provided above accessways and parking spaces to accord with both Clause 52.06-3 of the Boroondara Planning Scheme and Clause 5.3.1 of AS/NZS 2890.1:2004. This should be clear of any overhead ducting, pipes and lighting. 2. A pedestrian sight triangle measuring 2.5m to be maintained at the northern edge of the laneway to Albert Street and the western edge of the laneway to Lilydale Grove by ensuring vegetation and fencing does not exceed a height of 1m.

1. A red light warning system, signage and a convex mirror (or a combination of the above) to be installed at the western edge of the egress point to Lilydale Grove unless provision is made for satisfactory sightlines to the west;

1. The sub-station relocated away from the Albert Street frontage to an alternative location to the satisfaction of the Responsible Authority and provision of landscaping in the setback. 2. The provision of screening to prevent unreasonable overlooking to the balconies of the following apartments: 2.1.02, 2.1.03, 3.1.01, 3.1.03, 3.1.03, 4.1.02, 4.1.0, 5.1.02 and 5.1.03. 3. Balconies to apartments 1.2.03, 2.2.03 and 3.2.03 redesigned to be setback not less than 1 metre off the west boundary. 4. The eastern all of the ramp adjacent to the car space 51 (depicted on TP06) to be constructed of permeable material or deleted to the extent that it protrudes north of car space 51.

1. The layout of the site and the size, levels, design and location of buildings and works and the description of the use(s) on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

1. All buildings and works must be maintained in good order and appearance to the satisfaction of the Responsible Authority.

Conditions required by the Director of Public Transport

1. Before the use of land commences, a Green Travel Plan must be prepared to the satisfaction of the Responsible Authority following consultation with the Department of Transport (Public Transport Division). The Plan must be prepared by a suitably qualified person and must encourage the use of non-private vehicle transport modes by the occupiers of the land. The Plan must include the following:
   1. A description of the location in the context of alternative modes of transport and objectives for the Green Travel Plan;
   2. Outline Green Travel Plan measures for the development including, but not limited to:
      1. Household welcome packs - tram, train and bus timetables relevant to the local area must be included in the pack of information provided to purchasers upon a purchaser's occupation of an apartment;
      2. Include a minimum of 10 by 2 hour metcard (zone one / two) within the household welcome pack or a myki pass (of equivalent value) and registration information;
      3. Bicycle parking and facilities available on the land;
      4. Pedestrian routes to key destinations.

1. The Green Travel Plan must not be amended without written consent of the Responsible Authority following consultation with the Department of Transport (Public Transport Division).

1. Once approved the Green Travel Plan must form part of the planning permit and any ongoing Management Plan for the land to ensure the Green Travel Plan continues to be implemented by residents / owners to the satisfaction of the Responsible Authority."

1. A landscape plan must be submitted to and endorsed by the Responsible Authority. The plan must be drawn to scale with dimensions and three (3) copies provided. When endorsed, the plan will form part of the permit. The landscape plan must be generally in accordance with the landscape concept plan dated 31 March 2011 prepared by Fitzgerald Frisby Landscape Architecture, except that the plan must show changes in accordance with the amended plans dated 20 September 2011.

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

1. All landscaping works shown on the endorsed landscape plans must be maintained to the satisfaction of the Responsible Authority.

1. Collection of waste must be conducted so as not to cause any disturbance to nearby residential properties and may only occur between the hours of 7:00am to 7:00pm Monday to Friday to the satisfaction of the Responsible Authority.

1. Prior to the commencement of construction of the building (excluding excavation) hereby approved:
   1. A certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970; or
   2. An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for a sensitive use.

1. Before the construction of the building hereby approved commences, a copy of the certificate of environmental audit and/or statement, and the complete audit report and audit area plan must be submitted to the Responsible Authority.
2. The development and use allowed by this permit must comply with the directions and conditions of any statement of environmental audit issued for the land.
3. Prior to the occupation of the dwellings, a letter must be submitted to the Responsible Authority by an Environmental Auditor accredited with the EPA, to advise that all construction and remediation works necessary and required by an environmental audit or statement have been carried out.

1. Any handling and disposal of contaminated site soil must be in accordance with the requirements of any statement of environmental audit issued for the land, the requirements of the Environment Protection Authority and the Environment Protection Act 1970.

Driveways and Car Parking areas to be constructed

1. Before the use starts the areas set aside for car parking, access lanes and driveways shown on the endorsed plans must be:

1. Constructed; 2. Formed to such levels and properly drained so that they can be used in accordance with the endorsed plans; and

1. Car spaces, access lanes and driveways shown on the endorsed plan must not be used for any other purpose, to the satisfaction of the Responsible Authority.

1. Before the use commences, a Car Park Management Plan must be prepared to the satisfaction of the Responsible Authority. Once satisfactory, such plan will be endorsed and must be implemented to the satisfaction of the Responsible Authority. The plan must address the allocation and shared use of retail car spaces and residential visitor car spaces.

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

1. All pipes (except down-pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the Responsible Authority.

1. Before the uses commences, an Environmentally Sustainable Design (ESD) Report which is to the satisfaction of the Responsible Authority must be prepared by a suitably qualified expert and submitted to the Responsible Authority for approval. The report must address ESD principles proposed for the site including, but not limited to, energy efficiency, stormwater collection and re-use on the site and waste and building materials. Any recommended changes to the building must be incorporated into the plans required by Condition 1. Once approved, such a plan must be implemented prior to the occupation of the dwellings to the satisfaction of the Responsible Authority.

1. Prior to the commencement of any works (including demolition), the owner must submit a Construction Management Plan to the Responsible Authority for approval. No works are permitted to occur until the Plan has been approved in writing by the Responsible Authority. Once approved, the Construction Management Plan must be implemented to the satisfaction of the Responsible Authority. The Plan must provide details, as necessary, of the following:

1. Measures to ensure that construction workers, including sub-contractors and tradespersons operating on the site are aware of the trees to be retained; 2. hours for construction activity (including demolition) in accordance with the requirements of Condition 21;

1. measures to control noise, dust, water and sediment laden runoff;

1. the location and design of a vehicle wash-down bay for construction vehicles on the site; 2. the location of parking areas for construction and sub-contractors' vehicles on the site, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises and traffic flows with any basement car park on the land being made available without delay for use by sub-contractors/tradespersons upon completion of such basement car park areas; 3. measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan; 4. contact details of key construction site staff; 5. the location of any site sheds and the like; 6. the laneway at the rear of nos. 4-8 Albert Street to be managed so that access is not impeded; 7. retention of boundary fencing with residential neighbours; and 8. any other relevant matters.

1. All works including earthworks, demolition and construction activity associated with the approved development is to be limited to the following hours, unless with the prior written consent of the Responsible Authority:

1. The amenity of the area must not be adversely affected by the use or development as a result of:

1. transport of materials, goods or commodities to or from the land; 2. appearance of any building, works, stored goods or materials;

1. emission of noise, artificial light, vibration, smell, fumes, smoke, steam, soot, ash, dust, waste water, waste products or oil; or

1. A waste management plan must be prepared to the satisfaction of the Responsible Authority. Once satisfactory, such plan will be endorsed and must be implemented to the satisfaction of the Responsible Authority. The plan must provide the following details of a regular waste (including recyclables) collection service for the subject land including:

1. the type/s and number of waste bins; 2. type/size of trucks;

1. The development does not start within two (2) years of the issue date of this Permit; or 2. The development is not completed within four (4) years of the issue date of this Permit; or

1. The use does not commence within four (4) years of the issue date of this Permit.

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

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

[2] This paragraph seeks to summarise the grounds of refusal relied on by the Council at the hearing. The Council withdrew grounds 5 and 6.

[3] For example street frontages are wider on consolidated lots.

[4] This is in relation to the need for setbacks between lots that comprise the site itself, not neighbouring properties in separate ownership

[7] City of Boroondara Activity Centres Strategy adopted June 2011 page 242

[8] The development is predominantly residential, however provides for commercial use at ground level.

[9] The strategy states that the Council should investigate the rezoning of those parts of properties zoned part B2Z and part R1Z to entirely R1Z.

[10] See Section 60(1A)(g) Planning and Environment Act 1987

[11] [2011] VCAT 228