For these reasons I find that the proposed development is an appropriate response to its context, the existing and preferred neighbourhood character, and the guidance provided by the Boroondara Planning Scheme.

Victorian Civil and Administrative Tribunal|2023-10-11

For the reasons set out above, and in contrast to the submissions of Ms Harrison, I find that the proposal comprises a generous landscaping response to this context, that comprises deep soil, canopy coverage, and large canopy trees that far exceed the amount required under the Boroondara Planning Scheme. As a result of these findings, I am not persuaded by Ms Harrison's submissions that the proposal is not climate responsive, and does not do enough to reduce the urban heat effect. I am also not persuaded by Ms Harrison's submissions in relation to biodiversity, given that the review site sits in a context where exotic canopy trees are a dominant character element, which makes it reasonable that a certain proportion of the proposed landscaping on the review site is of exotic species.
For the reasons set out above, there is no reason to contemplate reductions in the size of the building, including the basement car parking, in order to provide additional room for landscaping.

For these reasons I find that the proposal achieves a comprehensive response to the site and the surrounding landscape character. Further, for these reasons I will agree to the deletion of Conditions 1(v), 3(d) and 3(e) as drafted by Council, as I am not persuaded that the additional canopy trees and deep soil areas sought by these conditions are necessary in order to result in an appropriate landscaped setting for the proposed development.

For these reasons I find that the proposed development is an appropriate response to its context, the existing and preferred neighbourhood character, and the guidance provided by the Boroondara Planning Scheme.

WILL THERE BE ANY UNREASONABLE OFF-SITE AMENITY IMPACTS?

Off-site amenity impacts are considered at a residential interface in terms of overlooking, overshadowing and visual bulk. The potential for visual bulk has already been assessed, with the finding that no unreasonable visual bulk will occur.
No unreasonable levels of overshadowing will be cast to the adjoining properties, with the extent of shadow cast on the secluded private open space on the properties to the south of the review site well in accordance with the relevant Standard.
Overlooking is intended to be addressed by way of obscure glazing to windows where required, and planter boxes and obscured glazing to balconies. The plans indicate that there will be some east facing windows on the first and second floors to apartments 1.06 and 2.04 which will enable overlooking into a habitable room window in the adjacent property to the east. For this reason, it is appropriate that these windows be provided with a level of screening, that I will require by way of a permit condition.
In relation to the potential to overlook the properties to the rear of the review site, which are associated with the applicants for review in one of the proceedings, there was an agreement reached between the parties at the Compulsory Conference. The applicant has then sought to detail that agreement in a set of plans (dated 11 May 2023). However, at the hearing the parties agreed that there needed to be some refinement to these plans, namely through changing the obscure batten screen to obscured glazed screens, and by notating that the obscured glazed screen is to be positioned on the outside of the respective planter boxes. In addition, the parties have agreed that the rear boundary would be fenced to 2.4 metres in height, and that in respect of the interface to 11 Butler Street, the new fence is to go on the northern side of the existing brick retaining wall and cyclone fence. I will provide for these matters by way of permit conditions.
Subject to these conditions, for the reasons set out above I find that the proposal will not result in any unreasonable amenity impacts to the surrounding properties.

IS AN APPROPRIATE LEVEL OF INTERNAL AMENITY PROVIDED?

At the hearing, the Council raised a concern regarding the extent of solar access that will be enjoyed by those balconies that have a southern orientation. This applies to three of the 15 proposed apartments on the review site. I find that this orientation is acceptable for this small number of apartments, despite the lower level of solar access that will result. I make this finding having regard to the generous size of the balcony space provided to one of these apartments on the top floor, as well as the provision of two generously proportioned areas of communal open space at ground level to the building, which will provide alternative sources of solar access for the occupants of the affected apartments. As a further consideration, I also note the location of the review site on the doorstep of the adjacent activity centre, which provides a range of outdoor areas where people can enjoy solar access at different times of the year.
In addition, I raised a concern with Mr Loughnan regarding the room depth of the open plan living area for Apartment 2.02, which has a depth of 10.2 metres. This room depth does not comply with Standard B47.[14] At the hearing, I suggested to Mr Loughnan that the extent of daylight to be enjoyed by the rear section of this living area could be improved by the installation of skylights, given this is a top floor apartment. He agreed to the requirement of skylights by way of permit condition. I am satisfied that such a solution will enable the objective to be achieved, which seeks to allow adequate daylight into single aspect habitable rooms.
Turning to the other usual considerations, I find that an appropriate level of internal amenity will be provided. I make this finding having regard to the size of the individual rooms and apartments, their ability to receive direct sunlight and daylight, the size of the areas of secluded private open space, the convenient car parking, bicycle parking and storage facilities provided in the basement, and the accessibility provided to the adjacent activity centre.

DOES THE PROPOSAL APPROPRIATELY PROVIDE FOR CAR PARKING AND TRAFFIC MOVEMENTS?

Car parking is sought to be provided at a rate above that which is required by Clause 52.06 of the Boroondara Planning Scheme. In accordance with the decision of Justice Quigley in Brunswick Investments v Morleand CC [2021] VCAT 1191, I cannot require the surplus car parking to be removed from the proposed development of the review site.
The layout of the car parking and the access arrangements to and from the review site have been found to be to the Council's satisfaction. These matters cannot be reviewed as part of the s82 application for review brought by objectors, and are not the subject of the conditions under review in this proceeding. The layout of the car park and the access arrangements are therefore not before me. In any case, they appear to be appropriately designed, and allow for safe and efficient traffic movements.
For these reasons I find that the proposal appropriately provides for car parking and traffic movements.

A number of other matters about permit conditions were raised by the parties. With respect to those matters, other than those already addressed above, I summarise my conclusions as follows:
1. The written submissions made by parties after the conclusion of the hearing in relation to the final form of Conditions 1, 3 and 6 have been considered in the final form of the conditions that appear at Appendix A. Where the applicant has taken this opportunity to oppose an additional condition (Condition 1(n) in Appendix A) from Council's Notice of Decision to grant a permit, that was not the subject of the Conditions review, I have not allowed that opportunity to essentially review additional conditions without any notice.
2. I endorse the suggestion made by Ms Harrison that Condition 8 be expanded to ensure that people involved in the demolition and removal of hard paving, are informed as to the tree protection measures in place. I will not endorse however the further suggestion that each contractor and tradesperson be provided with a copy of the Tree Management Plan. Rather, I consider that a briefing is sufficient.
3. I also do not see the need for the Tree Management Plan to be attached as part of the Construction Management Plan, as requested by Ms Harrison. These are separate documents which will both apply to the development of the review site, and it is the responsibility of the Council to ensure consistency between the two documents.
4. I will not agree to Ms Harrison's request for a separate condition that requires the screening to restrict overlooking to be installed prior to occupation of the building. Rather, I regard the presently drafted Condition 2 to be sufficient, a view that is shared by Council.
5. Finally, I will apply the permit expiry condition that is applied as standard by the Tribunal.

For the reasons given above, the decision of the responsible authority is varied. A permit is granted subject to conditions.

The construction of two or more dwellings on a lot
The construction of a front fence
The creation and alteration of access to a road in a Transport Zone 2

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 electronic copies provided (unlocked PDF). When the plans are endorsed they will then form part of the permit. The plans must be substantially in accordance with the advertised plans but modified to show:

(a) The entire building achieving full compliance with Standard B17, as found at Clause 55.04-1 of the Boroondara Planning Scheme.

(b) The provision of a minimum of two skylights to the rear section of the living area of Apartment 2.02, in order to improve the daylight to this area, and the subsequent relocation of any rooftop plant and equipment to facilitate the provision of these skylights. Any relocated rooftop plant and equipment must be sited in a centralised location and away from property boundaries.

(c) Relocation of the water and gas meters further away from tree 5, and sited along the northern side of the basement access ramp, generally in accordance with the manner depicted in the sketch plan contained at Attachment 5 to Mr Loughnan's submissions in the VCAT hearing, marked G2 Urban Planning and dated 15 September 2023.

(d) The provision of a minimum 9.05 metre front setback to apartments G.05, 1.06 and 2.04.

(e) The provision of screening to restrict overlooking from the east facing first and second floor bedroom windows at Apartments 1.06 and 2.04, as well as the eastern edge of the balcony to Apartment 1.06.

(f) The provision of screening to restrict overlooking consistent with that depicted in plans prepared by Rothelowman and dated 11 May 2023, but with the following changes:

Replacement of the obscure batten screen to balconies with an obscure glazed screen;

Confirmation that the obscure glazed screen to balconies, is to be installed to the outer edge of the respective planter boxes;

Confirmation that the 2.4 metre high fence to be erected along the southern boundary of the review site, will for the extent of the common boundary with 11 Butler Street, be installed inside the existing retaining wall and cyclone wire fence, allowing these existing elements to remain.

(g) The location of site services and retaining walls must be located in accordance with the ,marked up plan' prepared by G2 Urban Planning and dated 15 September 2023.

(h) Replace the soldier brick coursework above the top window of the central 3 storey façade with a dark grey metal finish and aligned with the recessed glazing.

(i) The fire booster unit at the eastern end of the street frontage to be metal battens (MC03).

(j) The dark brick finish of the front fence to continue to cover the driveway sideways, the eastern boundary wall and any visible basement walls.

(k) Details of all service enclosures to be shown on the plans.

(l) Physical samples of all finishes and colours to be submitted to Council for verification and approval.

(m) The top of the basement ramp showing 150mm above the base of the kerb in front of the crossover.

(n) Electric vehicle charging infrastructure to all car parking spaces.

(o) The raingarden relocated so it is no longer on-site boundary adjacent to neighbouring properties.

(p) The Tree Protection Zone and Structural Root Zone of Tree Nos. 1, 2, 3, 4, 5, 10, 12, 14, 15, 16, 17, 18, 19, 20, 21, 25 and 29 (as identified in the Arborist Report submitted with the application prepared by Tree Radar Australia (dated 16/06/2022) shall be shown in the Tree Management Plan and drawn on all site and floor plans.

(q) Notation on all site and floor plans that Tree Nos. 1, 2, 3, 4, 5, 10, 12, 14, 15, 16, 17, 18, 19, 20, 21, 25 and 29 are to be retained and protected in accordance with the endorsed Tree Management Plan required by this Permit.

(r) Any modifications to the location or layout of buildings and/or works recommended in the endorsed Tree Management Plan required by this Permit.

(s) The siting of any necessary stormwater detention pit, underground services and pits, and/or rainwater harvesting tank to be located outside any area set aside for deep-soil planting and outside the Tree Protection Zone of any trees to be retained/protected.

(t) Deletion of paving within the Structural Root Zone of Tree 10.

(u) Notation on all site and floor plans that the existing levels within the Tree Protection Zone of Tree 10 must be maintained (excluding building footprint).

(v) Notation on all site and floor plans that the existing concrete driveway and permeable concrete structure must be retained within the Tree Protection Zone of Tree 10 until commencement of the landscape stage.

(w) Notation on all site and floor plans that no services are to be located within the Tree Protection Zones of Tree Nos. 5, 10, 14, 15, 16, 17 and 18.

(x) Notation on all site and floor plans that all excavations within the Tree Protection Zone of Trees 5 and 10 must be undertaken with hand tools or hydro-vacuum and that all excavation works must be supervised, documented and certified by the AQF level 5 qualified Project Arborist (excluding building footprint).

(y) Notation on all site and floor plans that existing levels must be maintained within the Tree Protection Zones of Tree Nos. 5, 14, 15, 16, 17, 18, 19, 20, 21 and 29. between the Eastern boundary and paved areas.

(z) Notation on all site and floor plans that existing levels must be maintained within the Tree Protection Zones of Tree Nos. 25 between the boundary and building footprint.

(aa) Permanent fencing within the Tree Protection Zone of Trees 5, 10, 14, 15, 16, 17, 18, 19, 20, 21, and 25 constructed on pier foundations with any required plinths constructed above existing grade.

(bb) Changes to private open space areas in the southeast and southwest corners of the property to facilitate replacement tree planting as required in the Landscape Plan conditions of this permit.

(cc) Any changes as required by the Landscape Plan in accordance with this permit.

(dd) Any changes as required by the Waste Management Plan in accordance with this permit.

(ee) Any changes as required by the Tree Management Plan in accordance with this permit.

(ff) Any changes as required by the Sustainability Management Plan in accordance with this permit.

The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason (unless the Boroondara Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.
A landscape plan generally in accordance with the Jack Merlo landscape plan Revision G (dated 21 August 2023) and to the satisfaction of the responsible authority must be submitted to and approved by the Responsible Authority. The plan must be drawn to scale with dimensions and electronic copies provided (unlocked PDF). When endorsed, the plan will form part of the permit.

(a) All landscaping proposed at first floor and second floor levels;

(b) A survey (including botanical names) of all existing trees to be retained and of those to be removed. The intended status of the trees shown on the landscape plan must be consistent with that depicted on the development layout plan;

(c) All hard surfaces proposed within the Tree Protection Zone of Tree Nos. 1,2,3,4,10, 17, 18, and 25 (as identified in the Arborist Report submitted with the application Tree Radar Australia (dated 16/06/2022) must be constructed of permeable materials; be constructed above current grade; and be constructed on foundations that maintain appropriate permeability for each tree, to the satisfaction of the Responsible Authority;

(d) Detailed construction specifications for all permeable surfaces that include cross-section diagrams (including first and second floor areas);

(e) All trees must comply with Australian Standard AS2303:2015 - Tree Stock for Landscape Use;

(f) All canopy trees must be planted by an AQF Level 3 Qualified Arborist, Landscape Gardener or Horticulturist; and,

(g) The proposed irrigation system.

Landscaping as shown on the endorsed landscape plan/s must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.
All landscaping works shown on the endorsed landscape plan/s must be maintained and any dead, diseased or damaged plants replaced, all to the satisfaction of the Responsible Authority.
Concurrent with the submission of amended plans required by Condition 1 of this Permit and prior to any demolition or site works, a Tree Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The Tree Management Plan must be prepared by a minimum AQF Level 5 qualified and experienced Arborist in relation to the management and maintenance of Tree Nos. 1, 2, 3, 4, 5, 10, 12, 14, 15, 16, 17, 18, 19, 20, 21, 25 and 29 (as identified in the Arborist Report submitted with the application prepared by Tree Radar Australia (dated 16/06/2022). The Tree Management Plan must make specific recommendations in accordance with the Australian Standard AS4970: 2009 - Protection of Trees on Development Sites and detail the following to ensure that all retained trees remain healthy and viable during demolition and construction:

(a) A Tree Protection Plan drawn to scale that shows:

Tree 5 accurately located;

Tree Protection Zones and Structural Root Zones of all trees to be retained;

All tree protection fenced off areas and areas where ground protection systems will be used;

The type of foundations (illustration or notation) within each Tree Protection Zone;

Any services to be located within the Tree Protection Zone and a notation to state that all services will either be located outside of the Tree Protection Zone, bored under the tree protection zone, or installed using hydro excavation under the supervision of the project arborist; and

A notation to refer to the Tree Management Plan for specific detail on what actions are required within the Tree Protection Zone.

(b) Details of how the root system of any tree to be retained will be managed. This must detail any initial non-destructive trenching and pruning of any roots required to be undertaken by the project arborist; and details of how any permeable surfaces within the Tree Protection Zone of retained trees will be constructed;

(c) Supervision timetable and certification of tree management activities required by the Project Arborist to the satisfaction of the Responsible Authority;

(d) All remedial pruning works that are required to be performed on trees during demolition and development of the site. The pruning comments must reference Australian Standards 4373:2007 Pruning of Amenity Trees and provide a detailed photographic diagram specifying what pruning will occur.

(e) The recommendations contained in the approved Tree Management Plan must be implemented to the satisfaction of the Responsible Authority and any changes to the endorsed Tree Management Plan will require written authorisation from the Responsible Authority.

If a Construction Management Plan is required as a condition of this permit it must be in accordance with the Tree Management Plan and Tree Protection Plan.
The owner and occupier of the site must ensure that, prior to the commencement of buildings and works, including demolition and the removal of any hard paving, all contractors and tradespersons operating on the site are advised of the status of trees to be retained and protected as detailed in the endorsed Tree Management Plan and are advised of any obligations in relation to the protection of those trees. A written record must be maintained on site of all contractors inducted regarding this condition. At the request of an authorized officer of Council this written record must be provided to council.
No vehicular or pedestrian access, trenching or soil excavation is to occur within the Tree Protection Area as detailed in the endorsed Tree Management Plan without the prior written consent of the Responsible Authority. No storage or dumping of tools, equipment or waste is to occur within the Tree Protection Zone.
Prior to the commencement of any site works, including demolition and excavation, the Responsible Authority must be provided with evidence that a project arborist has been engaged as part of the ongoing consultant team to oversee the design and construction, and to ensure the development does not have a detrimental impact on the ongoing health and stability of the trees to be retained. The project arborist must hold suitable qualifications and experience to the satisfaction of the Responsible Authority. Evidence of the appointment of the project arborist must be submitted to the satisfaction of the Responsible Authority (quoting the Planning Permit number and site address, emailed to Boroondara@boroondara.vic.gov.au) not less than seven (7) days before the commencement of works on site.
Prior to the commencement of any site works, including demolition and excavation, a timetable for the supervision and certification of tree management activities which is to the satisfaction of the Responsible Authority must be prepared by the project arborist and submitted to the Responsible Authority for approval. A signed and dated copy of each stage of the supervision timetable certified by the project arborist (quoting the Planning Permit number and site address, emailed to Boroondara@boroondara.vic.gov.au) must be submitted to the Responsible Authority not more than seven (7) days following the completion of each stage.
Concurrent with the endorsement of plans, the applicant must provide a Water Sensitive Urban Design Response addressing the Application Requirements of Clause 53.18 'Stormwater Management in Urban Development' to the satisfaction of the Responsible Authority. The response must include:

(a) A site plan showing the location of proposed stormwater treatment measures and the location and area (square metres) of impermeable surfaces that drain to each treatment measure.

(b) A written statement outlining how the application achieves current best practice performance objectives for stormwater quality as contained in the Urban Stormwater - Best Practice Environmental Management Guidelines (1999). Please note that for the modelling requirement you can use the following free program to demonstrate best practice, which is equivalent to a score of 100% or more: http://storm.melbournewater.com.au/

(c) If any water tank is proposed, the plans must indicate the tank's capacity in litres and what the tank is connected to (e.g. toilets).

Concurrent with the endorsement of plans, a Sustainability Management Plan (SMP) must be submitted to and approved to the satisfaction by the Responsible Authority. The Sustainability Management Plan must demonstrate a best practice standard of environmentally sustainable design and be generally in accordance with the report by GIW Environmental Solutions dated 14 September 2022, but modified to include the following changes:

(a) Preliminary energy rating for apartment 2.03 demonstration compliance with clause 55.07 cooling load limits

Where alternative ESD initiatives are proposed to those specified in conditions above (including condition 1), the Responsible Authority may vary the requirements of this condition at its discretion, subject to the development achieving equivalent (or greater) ESD outcomes in association with the development.

All works must be undertaken in accordance with the endorsed Sustainability Management Plan to the satisfaction of the Responsible Authority. No alterations to these plans may occur without the written consent of the Responsible Authority.
The site must be drained to the satisfaction of the Responsible Authority.
All disused or redundant vehicle crossovers must be removed and the area reinstated with footpath, naturestrip, kerb and channel to the satisfaction of the Responsible Authority.
The external faces of walls on or facing boundaries must be cleaned and finished to an acceptable standard to the satisfaction of the Responsible Authority.
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.
All bins and receptacles used for the collection and storage of solid waste, recyclables and other wastes must be kept in a designated area, to the satisfaction of the Responsible Authority. This storage area must be:

(a) Properly paved and drained to a legal point of discharge;

(b) Screened from view with a suitably designed enclosure;

(c) Supplied with adequate hot and cold water; and

(d) Maintained in a clean and tidy condition free from offensive odours

Collection of waste must be conducted so as not to cause any unreasonable disturbance to nearby residential properties and may only take place during the following times:

Concurrent with the endorsement of plans, a Waste Management Plan to the satisfaction of the responsible authority must be submitted to and approved by the Responsible Authority. Once satisfactory, such plan will be endorsed and must be implemented to the satisfaction of the Responsible Authority. The plans must be substantially in accordance with the advertised plan but modified to show:

(a) the type/s and number of waste bins;

(b) screening of bins;

(c) type/size of trucks;

(d) frequency of waste collection;

(e) delivery of bins to waste collection points and retrieval of bins once collected;

(f) Include that all town houses be provided with kitchen caddies and compostable liners for the storage of FOGO.

(g) Waste Collection, Arrangement and Vehicle access -note that each waste stream is to be collected in separate trucks and taken to the respective waste processors and not to be placed in one truck.

Prior to the commencement of any site works, including demolition and excavation, a Construction Management Plan must be submitted to and endorsed by the Responsible Authority. No works are permitted to occur until the Plan has been endorsed by the Responsible Authority. Once endorsed, the construction management plan will form part of the permit and must be implemented to the satisfaction of the Responsible Authority. The plan must be prepared in accordance with Council's Construction Management Plan Template and provide details of the following:

(a) Hours for construction activity in accordance with any other condition of this permit;

(b) Measures to control noise, dust, water and sediment laden runoff;

(c) Measures relating to removal of hazardous or dangerous material from the site, where applicable;

(d) A plan showing the location of parking areas for construction and sub-contractors' vehicles on and surrounding the site, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises. Any basement car park on the land must be made available for use by sub constructors/tradespersons upon completion of such areas, without delay;

(e) A Traffic Management Plan showing truck routes to and from the site;

(f) Swept path analysis demonstrating the ability for trucks to enter and exit the site in a safe manner for the largest anticipated truck associated with the construction;

(g) A plan showing the location and design of a vehicle wash-down bay for construction vehicles on the site;

(h) Measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the construction management plan;

(i) Contact details of key construction site staff;

(j) A site plan showing the location of any site sheds, on-site amenities, building waste storage and the like, noting that Council does not support site sheds on Council road reserves; and

(k) Any other relevant matters, including the requirements of VicRoads and Yarra Trams.

All works including earthworks, demolition and construction activity associated with the approved development must take place only during the following hours, except with the prior written consent of the Responsible Authority:

Provision must be made on the site for letter boxes and receptacles for papers to the satisfaction of the Responsible Authority.
This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:

(a) The development is not started within two (2) years of the issue date of this permit.

(b) The development is not completed within four (4) years of the issue date of this permit.

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

Prior to the occupation of the development all disused or redundant vehicle crossings must be removed, and the area reinstated to kerb and channel to the satisfaction of and at no cost to the Head, Transport for Victoria.
Prior to the occupation of the development, the crossover and driveway generally in accordance with the Ground Floor Plan TP01.03 dated 16/06/2022, are to be constructed to the satisfaction of the Head, Transport for Victoria and the Responsible Authority and at no cost to the Head, Transport for Victoria.
Prior to the occupation of the development, the access lanes, driveways, crossovers and associated works must be provided and available for use and be:

(a) Formed to such levels and drained so that they can be used in accordance with the endorsed plans.

(b) Treated with an all-weather seal or some other durable surface.

Any security boom, barrier, gate or similar device controlling vehicular access to the premises must be setback a minimum of 7 metres inside the property boundary to allow vehicles to store clear of the Riversdale Road pavement and footpath.
All vehicles must enter and exit the site in a forward direction.
The level of the footpath must not be lowered or altered in any way to facilitate access to the site.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] As recorded in the Tribunal order dated 20 July 2023.

[3] Clause 11.03-1S of the Boroondara Planning Scheme.

[7] As found at Clause 55.04-1 of the Boroondara Planning Scheme.

[8] The walls that did not comply with Standard B17, are: to Apartment 201, has a wall height of 10.91m which requires a setback of 6.01m, and a setback of 5.8m is proposed; to Apartment 204, has a wall height of 10.19m which requires a setback of 5.29m, and a setback of 5.25m is proposed.

[9] Survey dated 20 January 2022 by Terrence Hamilton of 2Map Pty Ltd.

[10] The buildings at 576 Riversdale Road and 578-580 Riversdale Road are much wider, as is the rear (southern) elevation of the building at 564 Riversdale Road.

[11] Particularly the words at paragraph 86 of that decision.

[12] Quoted from paragraph 169 of Ms Harrison's written submission.

[13] As found at Clause 55.07-4 of the Boroondara Planning Scheme.

[14] As found at Clause 55.07-13 of the Boroondara Planning Scheme.

Environment Act 1987

D'Andrea v Boroondara CC [2023] VCAT 1148 (11 October 2023)

In the decision of New Merger Pty Ltd v Boroondara CC [2023] VCAT 190, I made the following observations about the Moderate Change Areas in the Boroondara municipality, and the relevant policy context.

The key question now in the context of Standard B17 and the effect of the changes to Clause 55 as a result of Amendment VC243, is whether a proposal that complies with Standard B17, therefore automatically results in a finding that a proposal achieves acceptable neighbourhood character and amenity outcomes across the side and rear boundaries of a review site.
The answer to this key question relies on a clear understanding of what the Side and rear setback objective and Standard B17 addresses, and what they fail to address. This has been well explored by the Tribunal in the past, in the following extract from the decision of Burke Vue Pty Ltd v Stonnington CC (Includes Summary) (Red Dot) [2015] VCAT 1723, which in turn references an earlier decision of Global Alpha Group Pty Ltd v Boroondara CC [2013] VCAT 1929.

The answer to these questions is that the operation of Clause 55 and the Victorian Planning Provisions allows such neighbourhood character variations and policy guidance to influence the side and rear setbacks, through a variation to Standard B17 in the Schedule to the zone. It is in such Schedules that the outcomes for visual bulk, and neighbourhood character, could be varied from the usual metrics in Clauses 54 and 55, to achieve a particular outcome in a particular neighbourhood or interface. Without such variations to Standards in the Schedule to the residential zones, the effect of Amendment VC243 is to mandate that the achievement of particular Standards at Clauses 54 and 55, will deem that a component of a proposal is a satisfactory response in relation to the matters set out in the relevant Objectives.
In this case, the review site is included in Schedule 3 to the General Residential Zone under the Boroondara Planning Scheme, which does not make any variations to any of the Clause 55 Standards. As such, compliance with Standard B17 as found at Clause 55.04-1 of the Boroondara Planning Scheme, is deemed to be a satisfactory response in relation to the issues of visual bulk and neighbourhood character outcomes insofar as they relate to the height and setback of a building from the side and rear boundaries of the review site.
I need to identify, that simply because a proposal complies with Standard B17, and is therefore deemed to comply with the Side and rear setbacks objective, does not mean that a planning permit must be granted for a proposal. In making this point, I am in agreement with the analysis conducted in the Tribunal decision of Belokozovski v Port Phillip CC [2015] VCAT 1046.[11] The Side and rear setbacks objective remains just one element of a broad range of provisions and policies in the Boroondara Planning Scheme. An additional provision is the Neighbourhood character objectives at Clause 55.02-1 of the Boroondara Planning Scheme, which I have applied in my decision making task as part of a broader neighbourhood character assessment earlier in these reasons. However the effect of Amendment VC243, in relation to the words added at Clause 54 and 55, is to remove the discretion as to whether certain objectives are met, where a development complies with the corresponding Standard.

D'Andrea v Boroondara CC [2023] VCAT 1148

At a glance

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Judgment (48 paragraphs)

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Legislation Cited (1)

Cases Cited (4)

D'Andrea v Boroondara CC [2023] VCAT 1148 (11 October 2023)