Double Black Partners Pty Ltd v Kingston CC [2013] VCAT 859

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Act 1998, the permit application is amended to substitute for the permit application plans the following plans filed with the Tribunal:

1. The decision of the Responsible Authority is set aside. In permit application KP-528/2011 a permit is granted and directed to be issued for the land at 1 & 3 Oaklands Court, Highett. The permit will allow the development of the land with 26 dwellings and basement carparking, in accordance with the endorsed plans and subject to the conditions set out in Appendix A.

Mr Chris Taylor, solicitor of Planning and Property Partners. He called the following witnesses to give evidence:

• Mr Mark Sheppard, urban designer.
• Mr Darren Atkinson, landscape architect of Urbis.
• Mr Jason Walsh, traffic engineer of TTM Consulting.

Mr Redmond McNamara, town planner of Hansen Partnership.

They also appeared on behalf of N Evangelelis, M J Welst, S Powell, H Bouch, R McCann, M Umar, L McCormack, R Parramore, L Stewart, R Lomas, N Emmanouilidis, E & P Pantedis, W & S Powell.

Construction of multi-dwellings (11 x 1 bedroom and 15 x 2 bedrooms) in a 3-storey apartment building above two basement levels of carparking.

A total of 31 car spaces are proposed, comprising 1 space for each dwelling and 5 visitor car spaces, with vehicle access proposed from the eastern side.

The building is serviced through all levels by a lift and stairs, would have an overall height of 9.11m, site coverage of 60% and site permeability of 36%. Private open space is in the form of balconies or ground level courtyards.

Section 79 of the Planning and Environment Act 1987.

• Residential 1 (R1Z).
• Design and Development Overlay - Schedule 12 - Highett Activity Centre (DDO12)

• Clause 32.01-4 - Construction of two or more dwellings on a lot (R1Z).

• Clauses 10, 11, 15.01-5, 16, 21.04, 21.05, 22.11 and 22.17.
• Clauses 52.06, 55 and 65.

Located on the north side of Oaklands Court, the site is an irregular shaped parcel comprising two lots with a combined frontage of 31.41m, rear boundary dimension of 55m and overall site area of 1296sq.m. The western parcel is developed with two attached single storey dwellings with some trees, while the balance lot is vacant and devoid of vegetation.

The site is at the north-eastern edge of the Highett Activity Centre. It has abuttals with 8 neighbouring properties, comprising residential to the north and east and commercial and residential to the west.

I undertook an unaccompanied inspection of the site and surrounds subsequent to the hearing, including a view from the backyards of No.'s 2A and 4 Findon Court and from No. 5 Oaklands Court.

The Silver Arc Pty Ltd v Kingston CC [2011] VCAT 1226

1. This case concerns a proposal to construct a 3-storey apartment building above two levels of basement carparking on a 1296sq.m site in Highett.
2. The permit application attracted 35 objections. The Kingston City Council failed to make a decision on the application in the prescribed time but advised that had it been in a position to do so, it would have refused to grant a planning permit. In support of its position, the Council primarily contends that the mass, bulk and overall architectural quality of the building is not acceptable and fails to respect the area's existing character. Concerns were also expressed about the amenity impacts of the development upon neighbouring residential properties, the adequacy of setbacks and space for landscaping around the development and levels of internal amenity.
3. Residents opposed to the development generally support these grounds and expressed particular concerns about the parking, traffic and access arrangements.
4. In addition to these concerns, which are the key issues in this case, the proposal's response to its strategic context both in policy and physical terms is also an important consideration.
5. At the conclusion of the hearing I gave directions requiring the Applicant to provide further details of the proposed external building materials with an opportunity for the other parties to provide supplementary written submissions. These directions were set out in my interim order of 1 March 2013. Various submissions were made in response to my interim order which I have considered in reaching my decision.
6. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented and with regard to the applicable policies and provisions of the Kingston Planning Scheme, I have decided that a permit should be granted. My reasons follow.

Strategic considerations - the policy and physical context

1. There are three key objectives that underpin statewide policies for housing - diversity, urban consolidation, and affordability. There is a particular emphasis on the provision of increased housing densities in established urban areas utilising existing urban infrastructure and on sites in close proximity to activity centres and public transport.[1] Criteria for the identification of strategic redevelopment sites are set out at Clause 16.01-3 and include sites that are "in or beside Neighbourhood Activity Centres that are served by public transport" and "able to provide 10 or more dwelling units".
2. Local policies support and give effect to these policies. The Council's Housing policy at Clause 21.05 recognises the need to provide a range of housing types across the municipality which responds to population trends including the decrease in household size and the general ageing of the population. Residential development is encouraged within activity centres and at their periphery. It is also recognised that the intensity and scale of such development will need to be in keeping with the scale of these centres.[2]
3. Policies including those at Clause 21.05 and 22.11 designate different parts of the municipality for different levels of change. In the present case, the site is included within an 'Increased Housing Diversity Area' - where the greatest level of change for residential development is envisaged. Such areas are within convenient walking distance of activity centres and public transport and a strategy at Clause 21.05-3 explains that these areas will:

... accommodate a variety of medium density housing types and layouts at increased residential densities, responding to the established but evolving urban character.

1. The site is located on the edge of the Highett Neighbourhood Activity Centre which offers a wide range of shops and services. The Highett train station is about 100m away on foot. Several bus routes within 200m of the site are available in nearby Highett Road and Nepean Highway.
2. The Highett Activity Centre Policy at Clause 22.17, which seeks to implement the Highett Structure Plan, 2006[3] (a reference document under the planning scheme) indicates that the site is within Precinct 2 - 'Preferred Medium Density Residential Areas'. In addition to relevant general policies, within this area, it is policy to:
   • Support the development of contemporary medium density housing in the form of well designed apartment developments rather than villa unit and town house style developments.
   • Promote development with a maximum of three storeys on consolidated lots.
   • Encourage site consolidation.
3. In short, the site has very favourable attributes in terms of the policy framework and its physical features including its location relative to the Highett Activity Centre that lend support for a more intensive level of residential development. Its size, involving two lots and ability to accommodate more than 10 dwellings also mean that it has the hallmarks of a strategic redevelopment site.

1. The DDO12 for the Highett Activity Centre has a number of design objectives relevant to my consideration of the proposal's built form acceptability. The first objective is that:

All buildings should achieve a high standard of building design and articulation.

1. In relation to Preferred Medium Density Residential Areas, there are four design objectives, namely:
   • To encourage apartment style residential development of up to three storeys in height on consolidated lots in residential areas close to the Highett Activity Centre.
   • To retain the amenity of existing low density residential development by ensuring that adequate side and rear setbacks are provided to taller buildings to allow screen planting and a landscape setting, and to prevent unreasonably [sic.] overlooking, overshadowing and visual bulk.
   • To encourage car parking to be provided within buildings rather than at ground level, to maximise the opportunity to use ground level open space for landscaping, and communal and private open space.
   • To encourage consolidation of land that facilitates the creation of viable development sites capable of achieving the outcomes promoted by the Scheme and the Highett Structure Plan, May 2006.
2. The Council accepts that the first, third and fourth design objectives are met by this proposal, but submits that the second design objective is not. I will return to the proposal's response to this second design objective in more detail shortly.
3. Height controls and design standards are set out for different precincts. This site is within Precinct 5. The Table to Schedule 12 provides for the following :
   • a discretionary maximum building height of 11.0 metres (comprising 3 storeys);
   • the preference is for residential apartment style developments on larger consolidated lots, rather than villa units or townhouses;
   • a mandatory minimum front setback for new development of 6m where sites are consolidated;
   • new development must be setback from side and rear boundaries to provide greater side and rear setbacks than the standards of Clause 55 of this Scheme. Setbacks are to provide for substantial landscaping and to preserve the amenity of adjoining residences; and
   • car parking spaces be provided primarily within new developments rather than at ground level, in order to maximize the opportunity to use ground level areas for landscaping, and communal open space.
4. In relation to these design standards, it was common ground that the building's maximum height, apartment typology and car parking location are fully compliant but that the feature framing element to the front façade encroaches into the 6m front setback requirement. This is a minor matter that can be easily resolved through permit conditions.

1. The Council contends that the proposal's response to the design standard for side and rear setbacks is not acceptable. In particular, it is submitted that the upper floor level footprint should be reduced and areas for landscaping increased to reduce visual bulk. Mario Pertile and Melanie Beaton who appeared on behalf of twelve other residents opposed to the development also expressed concerns with the proposal's scale, bulk and visual impacts. They submit that the proposal would dwarf the single storey scale of existing houses, would not be in keeping with the character of dwellings in this particular court setting, being the first of its kind in this street and that it represents "an extreme overdevelopment of the site".
2. In determining whether the scale, bulk and setbacks of the proposal are acceptable, there are a number of relevant factors that influence my assessment. These are:
   • the strategic framework that I have outlined above which envisages a considerable degree of change to the type and scale of housing that presently exists;
   • the site's location in an area that is not purely residential - with adjacent to properties that are zoned both Business 1 and Residential 1.
3. Decision guidelines under DDO12 also include the following matters that I must consider in reaching my findings:
   • The amenity impacts on any adjoining land in a Residential 1 Zone, particularly with respect to overshadowing, privacy and visual bulk.
   • The use of materials, finishes and colour.
   • The visual impact of any balcony or roof deck and associated access when viewed from the street and surrounding area.
   • Whether the third and fourth storeys are visually intrusive when viewed from the street and surrounding area.
4. This proposal, at 3-storeys and which adopts an apartment typology will represent an obvious departure from the existing single and two-storey, detached housing model that predominates in Oaklands and Findon Court. I am not persuaded however that in terms of visual bulk, the third storey is unreasonably intrusive and should be deleted altogether so as to become a two-storey building as submitted by residents.
5. To do otherwise, would frustrate the strategic intent of what is a very clear policy direction supplemented by DDO12 seeking increased diversity of housing around the Highett Activity Centre. The building height of just over 9.1m is consistent with the 3-storey height envisaged for this location and is under the recommended 11m height limit. This strategic framework does not ask for a continuation of existing housing types at a height of one and two storeys. This is an area where the original housing type, scale and form is in a state of transition and where 2-storey 'back of house' commercial development forms part of Oakland Court's character at its western end.
6. While I accept that there is a policy direction at Clause 22.17-2 to "recognise the character of Highett's established residential areas" it does not ask for this to be copied or retained. Indeed I agree with the observation made by Member Keaney in The Silver Arc where he explains that in Preferred Medium Density Residential Areas, Clause 22.17 seeks to:

"establish a built form character that respects the existing character of the Activity Centre"

I note that it is the character of the centre, not the residential areas, that is sought to be 'respected' by this policy. That makes much more sense as the centre is already being redeveloped with some innovative and contemporary mixed use developments with housing above ground level.

1. It is also relevant that policy for built form at Clause 22.17-3 seeks to:

Maximise development opportunities on vacant and underutilised land which responds to the urban quality, proximity to transport and activity centres.

1. Nor do I consider that the third level should be setback further from the frontage as submitted by the Council. While parts of the third level in streetscape views will be readily visible, I am satisfied that this level and the building as a whole would not present an unreasonable degree of visual bulk. Varied setbacks and architectural detailing including the frame element provides a cohesive design element while also serving to break up the building mass.
2. Moreover, unlike some other precincts identified in DDO12, such as Precincts H3 and H4 which include mandatory setbacks for the third level of buildings, there are no such controls over the siting of the third level in Precinct 5.
3. At its eastern interface, with No. 5 Oaklands Court, I consider that the building would not be unreasonably intrusive from this neighbouring dwelling and backyard. In making this finding I have taken into account:
   • the recessed siting of the third level from the levels below, broken up by glazed balcony screens;
   • the proposed 2m ground level setback which will allow adequate space for the establishment of trees including 7 ornamental pears (Pyrus calleryana 'Capital') that can reach a mature height of 11m. These will provide a green edge and filtering of views from this neighbouring property;
   • the orientation of this neighbouring backyard whose primary outlook is towards the north rather than the east;
   • the presence of existing trees along the common boundary and the verandah attached to the back of the house which together provide some screening of eastward views towards the proposed building footprint from the verandah and rear of the dwelling;
4. At its northern interface, the site has abuttals with properties in Findon Court - No.'s 2A, 4, 6 and 8.
5. I note that the owners and occupiers of No.'s 6 and 8 Findon Court are not parties to this proceeding. However, I am satisfied that the proposal would not be unreasonably intrusive from these neighbouring properties taking into account the proposed varied setbacks and presence of large outbuildings close to the common boundary at the rear of each lot.
6. In relation to No.'s 2A and 4 Findon Court which I visited during my inspection, I am similarly satisfied that the development would not result in any unacceptable visual impact from these neighbouring properties. The 4.5m ground level setback will provide an adequate area within which new trees can be established to supplement several very large existing trees adjacent to the common boundary in these neighbouring backyards. This vegetation will soften and screen views of the development. In addition, the varied setbacks including greater recession of the third level at the north-west corner assist in moderating the scale and bulk of the development at this interface.
7. At the western interface, I find that the development would not present an unreasonable degree of visual bulk. I am not however persuaded that the proposal would achieve an acceptable outcome in terms of its shadow impacts upon the two courtyards of the recently built double storey multi-dwellings at the rear of No. 26 Railway Parade zoned Residential 1. These courtyards appear to be the primary open space for each of these two dwellings and have an area which I estimate to be approximately 14sq.m. These spaces would receive additional shadow from the development until at least 11am but not after 12 noon at the equinox beyond the shadow cast by common boundary fencing.
8. It is true that shadows are already likely to be cast from an existing tree on the review site over these courtyards although there is no information before me as to the actual extent of this. In any event, I note that this vegetation is to be removed. Being mindful of the provisions of DDO12 which ask for setbacks greater than the standards under Clause 55 to preserve neighbouring amenity, the compact size of these neighbouring courtyards and given the relatively unconstrained nature of the review site, I consider that the preferable outcome is to require minor modifications to the building's design at this interface so as to ensure compliance with Standard B21 at Clause 55.04-5. I will require this as a permit condition including accompanying shadow diagrams.

1. The Council's traffic engineers expressed concerns about the increase in traffic in Oaklands Court arising from this proposal, as do residents. They also have concerns with the safe operation of the Henry Street intersection which all parties agree has poor sight distances to the north for right turning vehicles exiting from Oaklands Drive.
2. Residents also expressed concerns with the adequacy of on-site parking, submitting that additional cars will park kerbside contributing to existing parking congestion which constrains traffic flows.

1. Oaklands Court extends for a length of about 110m west of Henry Street and has a carriageway width in the order of 6.5m. Coe Lane opposite the review site provides a connection between Oaklands Court and Henry Street, allowing vehicle access to the rear of commercial properties fronting Railway Parade and Highett Road and residential properties in Oaklands Court.
2. Commercial vehicles use Oaklands Court to access Coe Lane and to undertake turning movements at its western and in front of the review site which I observed during my inspection.
3. Existing traffic volumes in Oaklands Court, are in the order of 175 vehicle movements per day (vmpd). Applying the rate of 0.5vmpd per proposed dwelling, this equates to an additional 130 vmpd or a total of 305vmpd.
4. I accept Mr Walsh's evidence that Oaklands Court has the characteristics of an 'Access Place' under Clause 56.06-8 of the Planning Scheme whose target traffic volumes range from 300 to 1000vmpd.
5. While the increased traffic volumes arising from this proposal would be noticeable, this would still be within the road carrying capacity of Oaklands Court. Given the partial commercial interface and the strategic framework, I am also satisfied that this increase in traffic is acceptable from a residential amenity perspective.
6. Although I agree that sight distances to the north for right turning motorists exiting Oaklands Court is limited due to the alignment of Henry Street, I consider that traffic generated by the proposal would not unreasonably impact on the safe and efficient functioning of either Oaklands Court, Henry Street or the intersection such that refusal of the proposal is warranted. In saying this I have taken into account the:
   • relatively low increase in traffic volumes arising from proposal needing to undertake this right turn movement, and
   • the low speed with which south bound vehicles approach the bend in Henry Street.
7. Quite aside from the absence of any engineering design details or costings of any works deemed to be necessary by the Council, I am not persuaded that there is a sufficient nexus between this proposal and the need for traffic calming measures to be installed north of the intersection at the developer's cost as sought by the Council.
8. Given that restricted sight distances is an existing situation, as a short term measure I agree that the Council could install a convex mirror at this intersection as recommended by Mr Walsh or alternatively, a ban on right turn movements could be introduced. In the medium to longer term, I consider that if policy objectives at Clause 22.17-2 that seek to revitalise the Highett Activity Centre together with increased housing densities are to be realised, then an integrated and more strategic approach to the implementation of transport related objectives must be adopted by the Council. These objectives include:
   • To promote and provide access to public transport, walking and cycling facilities.
   • To manage traffic issues on Highett Road and established residential areas.
9. This is likely to involve further traffic management studies within the local area and equitable arrangements put in place by the Council to fund any required works. Different funding options are described in the Highett Structure Plan[4] which may include the introduction of a Development Contributions Plan Overlay, which typically involves the apportionment of costs in a strategic way rather than the ad-hoc approach that has been sought in this case.

1. Clause 52.06 of the planning scheme sets out the car parking requirements for various uses including a 'dwelling'. One car space per dwelling with one or two bedrooms is the standard requirement and one visitor car space per 5 dwellings. This equates to a total provision of 31 car spaces comprising 26 resident and 5 visitor spaces.
2. The development fully satisfies the required number of car spaces under the planning scheme and therefore no planning permission is required for this aspect of the proposal.
3. In terms of the parking layout, I consider it appropriate that parking bays at the ends of parking aisles should have a width of 2.9m with this dimension shown on the plans.
4. I otherwise acknowledge residents' concerns about the number of cars parking in Oaklands Court noting that there are 2 hour parking restrictions along much of the street generally during business hours except in front of the review site and opposite where "No standing" restrictions apply.
5. During my inspection I observed that a number of vehicles were unlawfully parked kerbside opposite one another, leaving less than the 3m minimum trafficable carriageway width required under the road rules. I was told at the hearing that this is a common occurrence.
6. This is an existing problem which is not of this proposal's making and is not a valid reason for refusal. Aside from better enforcement, I again find that the preferable approach is for the Council to implement parking and traffic management on a strategic, precinct wide basis. This may, for example involve the introduction of "No standing" restrictions on one side of Oaklands Court for its whole length or narrowing the road pavement and making improvements to the pedestrian realm.
7. For similar reasons I do not support the Council's proposed permit conditions asking that Oaklands Court should be modified to manage stormwater drainage along the road.

Are there any other matters that warrant refusal of this proposal?

1. It was submitted for the Council that the number of south facing apartments is excessive and would not offer residents acceptable levels of daylight access to private open space and indoor areas.
2. I note that five of the dwellings are solely south facing, representing less than 20% of all apartments. Taking into account the orientation of the review site, this is largely unavoidable. Overall, I am satisfied that a reasonable balance has been struck between the opportunities for development presented by the site with favourable locational attributes and the internal amenity the dwellings will offer.
3. I otherwise consider that the private open space provision in the form of ground level courtyards or balconies, each with a minimum area of 8sq.m is acceptable.

1. I am satisfied that the development has been designed to limit overlooking into neighbouring properties. I also consider that on the basis of the additional information in relation to external materials, screening devices to balconies would achieve an acceptable visual result. These are to comprise opaque glazing either with or without aluminium screens up to 1.7m in height.

1. With suitable conditions including a waste management plan and collection of bins by a private contractor rather than the traditional temporary kerbside storage method prior to collection, I consider that this aspect of the proposal is acceptable.

1. A number of other matters about draft permit conditions were raised by the parties. With respect to those matters, other than those already addressed above, I have considered submissions about them in formulating permit conditions.
2. These include:
   • a condition requiring full details of external materials and colours, generally in accordance with those recommended by Rothe Lowman under cover of letter dated 1 March 2013 as depicted in the accompanying Attachments 1 and 2;
   • if a DDA compliant footpath cannot be provided as a consequence of the construction of the new cross-over, the required strip of land up to a width of 0.45m should be included within a carriageway easement in favour of Kingston City Council. The easement is to be registered on title before occupation of any dwelling and all costs are to be borne by the developer;
   • details of mechanical ventilation for the basement including the screening of any roof-top exhaust vent;
   • the inclusion of all perimeter landscaped areas within common property generally with a minimum dimension of 2m adjacent to external site boundaries including details of maintenance access and the delineation of public and private areas using low, open style fencing or other techniques to the satisfaction of the Responsible Authority;
   • reference to the landscape plan appended to Mr Atkinson's statement of evidence;
   • oversight of the development throughout the detailed design and construction phases by a registered architect and landscape architect to ensure a high quality design outcome;
   • deletion of reference to the need for shading devices to east facing windows (proposed condition 1(s));
   • a Waste Management Plan which provides for waste collection to occur from within the basement. Alternatively, bins may be emptied kerbside into a suitable waste collection vehicle such that bins are only brought to the kerbside immediately prior to collection, that is bins are not to be temporarily stored kerbside overnight for collection in the traditional manner,
   • provision of an intercom system at the basement entry which may be located on the east side of the ramp (rather than centrally located); and
   • notations for the provision of bollards in front of bicycle spaces within the basement to limit damage by reversing vehicles.

1. This proposal is one for which there is strong strategic support.
2. While its 3-storey form and apartment typology is different to traditional housing stock nearby, the change it will bring is nonetheless consistent with the outcomes sought for the Highett Activity Centre in the Kingston Planning Scheme.
3. For the reasons I have set out, the decision of the Responsible Authority is set aside.
4. I will direct the grant of a permit with conditions.

The development of the land with 26 dwellings and basement carparking, in accordance with the endorsed plans

1. Before the development starts amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be substantially in accordance with the plans dated 2 January 2013 prepared by ABP Consultants Pty Ltd comprising Drawing No's. 2011-08NQ Sheets 1 to 17 inclusive, Revision D, but modified to show:
   • (a) a minimum front setback of 6m to the south façade measured from the western face of the feature framing element (architectural band) through a reduction in the internal floor space of the building. The position and design of the architectural band is to be maintained so as to sit proud of the building's face;
   • (b) modifications to the building's design and setbacks at the interface with the two dwellings at the rear of No. 26 Railway Parade so as to ensure compliance with Standard B21 at Clause 55.04-5 (overshadowing of open space). Compliance with Standard B21 is to be demonstrated by the submission of accompanying shadow diagrams at hourly intervals on 22 September;
   • (c) an elevation plan of the front fencing, which provides details of its height, materials and colours;
   • (d) the provision of a full colour, finishes and building materials schedule (including samples) for all external elevations and driveways of the development generally in accordance with the those recommended by Rothe Lowman under cover of letter dated 1 March 2013 and as depicted in the accompanying Attachment 1 (Materials Board) and Attachment 2 (Drawing No's. 2011-08NQ Sheets 16 and 17, Revision E);
   • (e) an apex (i.e. hump) at a minimum RL of 35.20 AHD along the Oaklands Court site frontage or otherwise as per Condition 14 of this permit;
   • (f) a basement ramp longitudinal section with gradients, levels to Australian Height Datum, apex and clearance heights;
   • (g) the provision of a roller shutter grille and intercom system at the car park entrance. Such intercom may be located on the east side of the basement ramp and is to include a description of how visitors would access the basement car park;
   • (h) a mirror installed on the corner wall of the basement ramps to improve sight lines;
   • (i) car spaces adjacent to solid barriers (such as walls or stores) including car space No.'s 3, 4, 8, 12, 21 and 22 to have a dimensioned width of at least 2.9m;
   • (j) the provision of bollards in front of the bicycle spaces;
   • (k) the provision of rainwater tank/s of at least 6000 litres, providing re-used water for the flushing of all ground floor toilets and landscape irrigation;
   • (l) a comprehensive stormwater management strategy of the site comprising a brief drainage report with drainage concept plan showing the stormwater works to the nominated point of discharge addressing the minor and major storm events and incorporating Rainwater Tank/s and Water Sensitive Urban Design Treatments;
   • (m) plan notations stating: "Redundant vehicle crossings must be removed, kerb & channel must be reinstated and the extension to the existing footpath up to the wing of the vehicle crossing must be constructed to the satisfaction of the Responsible Authority";
   • (n) if a DDA compliant footpath cannot be provided as a consequence of the construction of the new cross-over, a plan notation is to be provided indicating that the required strip of land up to a width of 0.45m should be included within a carriageway easement in favour of the City of Kingston;
   • (o) the inclusion of all perimeter landscaped areas within common property with a minimum dimension of 2m adjacent to external site boundaries (except adjacent to Unit 1's balcony whose setback of 1.68m adjacent to the west boundary may be maintained or otherwise to the satisfaction of the Responsible Authority) including details of maintenance access and the delineation of public and private areas using low, open style fencing or other techniques to the satisfaction of the Responsible Authority. Plan notations are to show areas of common property (with ongoing management by the Owners Corporation) and such areas are to be included in any Plan of Subdivision upon subdivision of the land;
   • (p) the provision of retractable drying racks on all balconies except those along the southern elevation facing Oaklands Court;
   • (q) any changes to the bin store area and access areas as required by the endorsed Waste Management Plan as per Condition 6 of this Permit;
   • (r) the provision of horizontal external shading to the north facing habitable room windows, and the provision of operable vertical external shading devices to the west facing habitable room windows (e.g. external shutters, sliding screens, vertical fins and blades using low maintenance durable materials such as aluminium slats);
   • (s) the sustainable design initiatives outlined in the endorsed Sustainable Management Plan (SMP) as per Condition 11 of this permit;
   • (t) the location of all plant and equipment including any rooftop exhaust vents for basement ventilation, screened from external view and incorporating any necessary noise attenuation screens;
   • (u) the provision of a landscape plan generally in accordance with the landscape plan prepared by Urbis Pty Ltd, Project No. MD3283, Dated 07-02-2013 Drawing No. LA01 incorporating:
     • (i) a planting schedule showing the proposed location, species type, mature height and width, pot sizes and number of species to be planted on the site;
     • (ii) notations indicating the use of Syzigium smithii 'Hot Flush' or similar to the hedge in front of Units 1 and 3;
     • (iii) the location and details of any stepping stones or similar within the area of crushed quartz along the west side of the site;
     • (iv) the delineation of all garden beds, paving, grassed areas, retaining walls, fences and other landscape works including areas of cut and fill throughout the development;
     • (v) access arrangements such as any gates throughout areas of common property;
     • (vi) all existing trees on the site and within 3.0 metres to the boundary of the site on adjoining properties, accurately illustrated to represent actual canopy width and labelled with botanical name, height and whether the tree is proposed to be retained or removed;
     • (vii) a range of plant types from ground covers to large shrubs and trees, species must comprise a minimum of 50% native and indigenous species;
     • (viii) adequate planting densities (e.g.: plants with a mature width of 1.0 metre, planted at 1.0 metre intervals); and
     • (ix) the provision of notes on the landscape plan regarding site preparation, including the removal of all weeds, proposed mulch, soil types and thickness, subsoil preparation and any specific maintenance requirements.
2. The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

1. Before the commencement of any buildings and works on the Land, a Construction Management Plan (CMP), to the satisfaction of the Responsible Authority, must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed as evidence of its approval and will then form part of the permit and shall thereafter be complied with. The CMP must specify and deal with, but is not limited to, the following:
   • (a) a detailed schedule of works including a full project timing;
   • (b) a traffic management plan for the site, including when or whether any access points would be required to be blocked; an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services; and preferred routes for trucks delivering to the site;
   • (c) the location for the parking of all construction vehicles and construction worker vehicles during construction;
   • (d) delivery of materials including times for loading/unloading and unloading points; expected frequency; and details of where materials will be stored and how concrete pours would be managed;
   • (e) proposed traffic management signage indicating any inconvenience generated by construction;
   • (f) a fully detailed plan indicating where construction hoardings would be located;
   • (g) a waste management plan including the containment of waste on site, disposal of waste, stormwater treatment and on-site facilities for vehicle washing;
   • (h) containment of dust, dirt and mud within the site and method and frequency of clean up procedures in the event of build-up of matter outside the site;
   • (i) business operations on the site during construction;
   • (j) site security;
   • (k) public safety measures;
   • (l) construction times, noise and vibration controls;
   • (m) restoration of any Council assets removed and/or damaged during construction;
   • (n) protection works necessary to road and other infrastructure (limited to an area reasonably proximate to the site);
   • (o) remediation of any damage to road and other infrastructure (limited to an area reasonably proximate to the site);
   • (p) an emergency contact that is available for 24 hours per day for residents and the Responsible Authority in the event of relevant queries or problems experienced;
   • (q) traffic management measures to comply with provisions of AS 17 42.3-2002 Manual of uniform traffic control devices - Part 3: Traffic control devices for works on roads;
   • (r) a communication strategy for residents; and
   • (s) measures to ensure all contractors associated with the construction of the development are made aware of the requirements of the Construction Management Plan.
2. Prior to the commencement of any buildings and works on the land, a pre-construction site and immediate surrounds inspection and condition assessment of all road ways and footpaths abutting the development is to be submitted to and approved in writing by the Responsible Authority. This must occur in a media (photos/video) which is able to accurately illustrate the full condition of all potentially impacted assets prior to the construction commencing. In the event of damage during construction, such damage will be required to be repaired by the developer, at the developer's cost and to the satisfaction of the Responsible Authority.
3. During the construction, the following must occur:
   • (a) any stormwater discharged into the stormwater drainage system is to comply with EPA guidelines;
   • (b) stormwater drainage system protection measures must be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises enters the stormwater drainage system;
   • (c) vehicle borne material must not accumulate on the roads abutting the site;
   • (d) the cleaning of machinery and equipment must take place on site and not on adjacent footpaths, roads or parks;
   • (e) all litter (including items such as cement bags, food packaging and plastic strapping) must be disposed of responsibly; and
   • (f) all site operations must comply with the EPA Publication TG302/92 (including all revisions or replacement guidelines).

1. Prior to the endorsement of plans pursuant to Condition 1, a Waste Management Plan (WMP) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Plan will be endorsed and will then form part of the permit. Three (3) copies of the plan must be submitted. The plan must include but is not limited to the following matters, all to the satisfaction of the Responsible Authority:
   • (a) The manner in which waste will be stored and collected including: type, size and number of containers, with collection to occur from within the basement. Alternatively, bins may be brought to and immediately emptied kerbside into a waste collection vehicle such that bins are only brought to the kerbside immediately prior to collection and returned to the basement immediately upon being emptied. That is, bins are not to be temporarily stored kerbside overnight for collection in the traditional manner, to the satisfaction of the Responsible Authority.
   • (b) Spatial provision for on-site storage.
   • (c) Waste collection is to be performed by a private contractor.
   • (d) The size of the collection vehicle and the frequency, time and point of collection.

The WMP must be implemented to the satisfaction of the Responsible Authority and must not be modified except with the further written consent of the Responsible Authority.

1. Prior to the issue of a building permit for the development permitted under this permit, a landscape maintenance management plan prepared by a suitably qualified person with expertise in landscaping or horticulture must be submitted to the Responsible Authority for approval. The plan must include details of landscaping management works to all areas of common property including a protocol for maintenance access to areas of perimeter landscaping in common property and a pruning programme for existing and proposed vegetation. Once approved, the plan will be endorsed and will form part of this permit. The plan must be implemented to the satisfaction of the Responsible Authority.

1. Prior to the occupation of any dwelling hereby permitted, the landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority. Thereafter, the landscaping must be maintained, including that any dead, damaged or diseased vegetation is to be replaced, to the satisfaction of the Responsible Authority.

1. Except with the prior written consent of the Responsible Authority, a registered architect and registered landscape architect must be engaged by the permit holder/developer to ensure a high quality delivery of the development permitted by this permit throughout the detailed design stage and during the period of construction works, from commencement until project completion, to the satisfaction of the Responsible Authority.
2. Prior to the issue of a building permit for the development permitted under this permit, a statement, to the satisfaction of the Responsible Authority, with the name and qualifications of the consultants described in Condition 8 of this permit must be provided to the Responsible Authority.

1. Prior to the endorsement of plans pursuant to Condition 1, an improved Sustainable Management Plan (SMP) that outlines proposed sustainable design initiatives must be submitted to and approved by the Responsible Authority. The SMP must incorporate consideration of the following sustainable design criteria:
   • Indoor environment energy efficiency
   • Water resources
   • Stormwater management
   • Building materials
   • Bicycle parking
   • Waste Management
   • Urban Ecology
   • Innovation
   • Ongoing building and site management

The SMP will be endorsed as part of the planning permit.

1. Prior to the occupation of any building approved under this permit, written confirmation from the author of the endorsed SMP is to be submitted to the Responsible Authority that all of the required measures specified in the SMP have been implemented.
2. Prior to the endorsement of plans pursuant to Condition 1, a STORM report (or similar) with STORM rating of at least 100% or equivalent with a reliability not less than 80%, to demonstrate that the development meets Victoria's best practice stormwater targets pursuant to Clause 19.03-2. Achieving compliance with this condition must not conflict with other conditions contained within the permit.

1. An apex (hump) at a minimum RL of 35.20 AHD (that is, 220mm above the lip of kerb) must be provided along the site's Oaklands Court frontage or an alternative engineering solution implemented for major flooding, to the satisfaction of the Responsible Authority. This apex is to continue through any driveways or pathways that may cross it. The apex is to be a permanent structure (e.g. hump in concrete driveway/pathway, sleeper retaining wall, solid brick fence/wall). Low mounded soil on its own is unlikely to be acceptable due to the likelihood of future disturbance.
2. The development of the site must be provided with stormwater works which incorporates the use of water sensitive urban design principles to improve stormwater runoff quality and which also retains on site any increase in runoff as a result of the approved development. The system must be maintained to the satisfaction of the Responsible Authority. Council's Development Engineer can advise on satisfactory options to achieve these desired outcomes which may include the use of an infiltration or bio-retention system, rainwater tanks connected for reuse and a detention system. The detention system must have a restricted outflow limited to 10 l/s.
3. Before the development commences, a Stormwater Management Plan showing the stormwater works to the nominated point of discharge must be prepared to the satisfaction of the Responsible Authority. The Stormwater Management Plan must be prepared by a qualified person and show all details of the proposed stormwater works including all existing and proposed features that may have impact (e.g. trees to be retained, crossings, services, fences, abutting buildings, existing boundary surface levels, etc.).
4. Stormwater works must be provided on the site so as to prevent overflows onto adjacent properties.

1. Any existing vehicular crossing not in accordance with the endorsed plan must be removed and the kerb reinstated in a manner satisfactory to the Responsible Authority and any proposed vehicular crossing must be fully constructed to the Responsible Authority's standard specification.
2. Property boundary and footpath levels must not be altered without the prior written consent form the Council's Roads and Drains Department.
3. Prior to the commencement of development, property boundary, footpath and vehicle crossing levels must be obtained from Council's Roads and Drains Department with all levels raised or lowered to the satisfaction of the Responsible Authority.
4. The replacement of all footpaths, including offsets, must be constructed the satisfaction of Council's Roads and Drains Department.
5. Prior to the occupation of any dwelling permitted under this permit, the carriageway easement in favour of the City of Kingston referred to in condition 1(n) must be registered on title, with all associated costs borne by the developer, to the satisfaction of the Responsible Authority.
6. Any relocation of pits/power poles or other services affected by this development must be relocated to the satisfaction of the relevant servicing authority and the Responsible Authority, at the cost of the owner/developer.

1. One (1) car parking space is to be allocated to each one or two bedroom dwelling and five (5) car parking spaces allocated to visitors to the site.
2. Prior to the occupation of the development hereby permitted, areas set aside for parking vehicles, access lanes and paths as shown on the endorsed plans must, to the satisfaction of the Responsible Authority, be:
   • (a) Constructed to the satisfaction of the Responsible Authority.
   • (b) Properly formed to such levels that they can be used in accordance with the plans.
   • (c) Surfaced in accordance with the endorsed plans under this permit or in an all-weather coloured concrete seal-coat, to the satisfaction of the Responsible Authority.
   • (d) Drained and maintained to the satisfaction of the Responsible Authority.
   • (e) Clearly signposted/marked as resident, employee, disabled or visitor parking.
   • (f) Line-marked to indicate each car space and all access lanes and, if necessary, the direction in which vehicles are to travel to the satisfaction of the Responsible Authority.

Parking areas and access lanes must be kept available for these purposes at all times to the satisfaction of the Responsible Authority and maintained to the satisfaction of the Responsible Authority.

1. Prior to the occupation of the dwellings hereby permitted, all buildings and works and the conditions of this permit must be complied with to the satisfaction of the Responsible Authority, unless with the further prior written consent of the Responsible Authority.
2. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
3. Prior to the occupation of the dwellings hereby permitted, all boundary fences must be repaired and/or replaced as necessary to the satisfaction of the Responsible Authority, at the cost of the applicant/owner.

1. All externally-located heating and cooling units, exhaust fans and the like must not be located adjacent to bedroom windows on adjoining properties and must be concealed from the street (and if located on the roof of a building, suitable screening and baffling must be provided), unless with the further written consent of the Responsible Authority.
2. The amenity of the area must not be detrimentally affected by the development of the land, through the:
   • (a) Transport of materials, goods or commodities to or from the land;
   • (b) Appearance of any building, works or materials;
   • (c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;
   • (d) Presence of vermin;

1. All piping, ducting above the ground floor storey of the development (other than rainwater, guttering and downpipes) must be concealed to the satisfaction of the Responsible Authority.
2. All works on or facing the boundaries of adjoining properties must be finished and surface cleaned to a standard that is well presented to neighbouring properties in a manner to the satisfaction of the Responsible Authority.

1. In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:
   • (a) The development is not started within two (2) years from the date of permit issue.
   • (b) The development is not completed within four (4) years from the date of permit issue.

In accordance with section 69 of the Planning and Environment Act 1987, the responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

[1] See for example Clauses 11 and 16 of all Victorian Planning Schemes.

[2] Clause 21.05-3 of the Kingston Planning Scheme.

[3] Prepared by Hansen Partnership, National Economics and Greg Tucker & Associates for Bayside and Kingston City Councils.

[4] See Section 7.6 at pages 49-51.