Use and development for dwellings, shops and offices, reduction of car parking, new access to a Road Zone Category 1 and removal of easement on certificate of title volume 4535 folio 879.

1. The permit is subject to the conditions set out in Appendix A.

Mr M Sheppard, Urban Designer, David Lock and Associates

Construction of a 7-storey building for shop, office and 48 apartments over basement car parking.

Application under Section 79 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 clause 34.02 for B2Z.

Clause 34.02- Construction of buildings and works in the B2Z.

Clause 52.29: Create or alter access to a road in a Road Zone Category One [RZ1]

Clauses 10.04, 11.01, 11.02, 11.04, 15.01, 15.02, 16.01, 17.01, 18.02, 21.01, 21.02, 21.03, 21.04, 22.02, 22.05, 22.06, 22.12, 22.13, 52.06, 52.07, 52.29, 52.34 and 65.

Irregular site with an area of about 1050 square metres located on the northwest corner of Burke Road and Malvern Road Glen Iris. Two storey shops occupy land and neighbouring properties to the north, with a 3-4 storey office building to the west, church and residential to the east including medium density housing. Contextually, the land is located within a small Neighbourhood Activity Centre, with a tramline adjacent to both frontages and a train station to the north.

Workshop Architecture v Stonnington CC P1309/2012 28 March 2013

1. Glenhill Pty Ltd lodged an application for planning permission to construct a 7-8 storey building to be used for shops, offices and apartments on land known as 255-263 Burke Road Glen Iris. The Council did not grant the permit within the prescribed time. Glenhill lodged this application with the Tribunal pursuant to Section 79 of the Planning and Environment Act 1987 against the Council's failure to grant the permit. Glenhill requests that the Tribunal make an order to set aside the Council 'deemed' refusal and direct the issue of the permit
2. Subsequent to the lodgement of the application for review, the Council decided to refuse the application on the following grounds:
   1. The height and scale of the building is dominant and out of character with the existing neighbourhood and does not meet the State and Local planning Policies, including Clause 15.01, Clause 22.02, Clause 22.05 and 22.06.
   2. A referral authority has objected to the proposal for reasons outlined in VicRoads correspondence dated 3 January 2013 - summarised as follows:
      1. A future road overpass option would require Burke Road to be elevated in front of the two proposed shops which would make these shops unviable as pedestrian access would not be available.
   3. Drainage has not been adequately resolved.
3. In response to notice of the permit application, the Council received 29 objections. The grounds of objection are summarised in the Officer's Report dated 4 March 2013. Mr Boekel and Ms Nixon object to the grant of the permit and contest the application for review together with a number of other objectors who did not appear at the hearing. In summary, the respondents raise concerns about the height and scale of the building and its compatibility with the area within which the land lies, as well as concerns about the impact on amenity with respect to a range of matters including traffic, car parking and overlooking. They support the Council's view that the proposed development would have an adverse impact on the heritage significance of St Andrews church which is located to the south of the site. They also raise concerns about practical matters associated with the construction of the building, maintenance of the mechanical car stacker units, rubbish collection and window cleaning.
4. Glenhill submits that the proposed development represents an acceptable outcome for the land. It submits that the land is a relatively large site within an activity centre within close proximity to public transport. It contends that the proposed development responds appropriately to the strategic and physical context of the land, taking into account both the policies and strategies currently in the planning scheme as well as those envisaged under Amendment C161which the Council has adopted and submitted to the Minister for Planning for approval. Glenhill submits that the proposal will not detract from the significance of the church, provides adequate car parking and will not cause detriment to the amenity of neighbouring residential properties or the wider area.
5. The key issues in this matter are:
   • Is the height of the building acceptable having regard to the strategic and physical context of the land?
   • Is the design of the building appropriate?
   • Will the proposed building detract from the significance of St Andrews Church?
   • Will the proposal result in unreasonable traffic impacts?
   • Is satisfactory car parking provided?
   • Will the proposal result in unreasonable impacts on the amenity of the area?
6. We must decide if a permit should be granted and if so, on what conditions. Having considered the submissions and evidence, the details of the proposal, the relevant matters under the planning scheme and legislation and having the benefit of an inspection of the subject land and its context, we conclude that a permit should be granted for the proposal. In general, we find the subject land suited to a development of the height and scale proposed. The proposal responds appropriately to both the strategic and physical context, subject to some minor changes, it is designed appropriately, providing satisfactory retail and commercial tenancies as well as residential apartments. It provides satisfactory parking and will not result in unreasonable detriment to the amenity of the area. Our reasons follow.

1. The subject land is located on the northwest corner of Burke Road and Malvern Road. The land comprises five adjoining lots which together create a development site of irregular shape with direct frontages of 23.39 metres to Burke Road, 32.16 metres to Malvern Road with a corner splay of about 8 metres facing the intersection. The site has an overall area of about 1050 square metres. It is set on sloping terrain, falling by about 3 metres from south to north. A number of double storey shops, built during the interwar period, occupy the land.
2. Two storey shop buildings also occupy properties to the north up to the railway line, while a 3-4 storey office building on the corner of Malvern Road and Glenarm Road is to the west. Directly south of the subject land, on the southwest corner of Burke Road and Malvern Road is St Andrews Church which dates from 1913 while medium density housing developments exist further west of the church. A small park exists where the original shops were removed to facilitate road-widening on the northeast corner of Burke Road and Malvern Road, whilst dwellings forming part of the residential hinterland exist to the east facing Malvern Road and King Street as well as Burke Road, south of the church.
3. Burke Road is a major north-south multi lane arterial road which provides direct connection with the Monash Freeway, located about 200 metres north of the subject land. Malvern Road is also an important east-west arterial. Both roads support tram services while Gardener railway station is located between the northernmost shop on Burke Road and the freeway.

1. The proposal involves the construction of a multi-storey building with 7 levels above ground and two basement levels below. The application plans show two small shop tenancies fronting Burke Road and an office tenancy at ground level with 48 apartments providing one and two bedroom accommodation in the levels above. 57 car parking spaces are provided in the two basement levels, with spaces in the lower basement provided by semi-automatic mechanical car stacker units. Spaces for shop and office staff and residential visitors are provided within the upper basement level, which also provides for a loading bay.
2. The building is of contemporary design in a podium/tower format with an overall height of about 26 metres excluding lift overrun. The lower three level form the podium, constructed to the site frontages, with patterned concrete walls, painted concrete balustrades and clear glazing to windows. The four upper levels form the tower and are distinguished from the podium base by their setback, curved alignment, and the use of coloured blue-green glazing.

1. Under the planning scheme, the land is zoned Business 2. There are no overlays. The zone provisions require a permit for the construction of the building and the use of the land for shop and 'accommodation' a land use term that embraces 'dwelling'. Other relevant provisions include:
   • Clause 52.02 which requires a permit for the removal of easements.
   • Clause 52.06 which sets out requirements for parking. A permit can be granted to reduce the amount of parking required.
   • Clause 52.07 which sets out requirements for the provision of a loading bay.
   • Clause 52.29 which requires a permit to create and/or alter access to a road in a Road Zone - Category One.
   • Clause 52.34 for bicycle parking.
2. General decision guidelines are at clause 65. These require consideration to be given to a range of matters including planning policy, the purpose of the zone, orderly planning and the impact on amenity. We set out analysis of the proposal against those criteria under the key issues in the following parts of out decision.

1. Having set out the relevant background, we now turn to our consideration of the merits of this proposal. In doing so, it is appropriate that we make a number of observations that are relevant to the consideration of the overall consideration of the proposal.
2. Firstly, the Council and the respondents do not dispute that the subject land is suited to being redeveloped for some form of multi-storey building. The Council says that a 4-5 storey building would be acceptable while the objectors contend three storeys is appropriate. In this regard, we note that the site is a relatively large parcel of land for the context, comprising 5 amalgamated lots. There is no impediment to the demolition of the existing buildings, nor does the site present insurmountable constraints like difficult slope or awkwardly positioned easements. The land is clearly well served by public transport given its proximity to tram and train services. We agree and find that the land is clearly suited for redevelopment, in particular the Council's submission that the site is 'a relatively large underutilised site in the Business 2 zone'. The dispute in this case is really about the size of the building
3. Secondly, the Council and the respondents do not dispute that, in principle, the land is suited to the proposed uses. They generally accept that the proposed shop, office and residential uses are appropriate. We agree that these uses are appropriate.
4. Thirdly, subject to some minor changes suggested by Mr Crowder, no concerns were raised about matters relating to internal amenity of the proposed apartments.
5. Fourthly, it is clear that the concerns raised by Vicroads, as expressed in the Council's second ground of refusal can be overcome by relatively minor changes to the proposal. Fundamentally, the change involves converting the two shop tenancies into one with a consistent floor level, and locating the doorways to the south. By letter dated 28 March 2013, Vicroads confirms that it withdraws its objection having regard to these changes, which Glenhill accepts, and the inclusion of other specified conditions on the permit, also accepted by Glenhill.
6. Fifthly, the Council accepts that concerns about drainage of the laneway, the matter which results in the third ground of refusal, can be overcome Glenhill enters into an agreement to accept stormwater runoff from the adjacent laneway. Glenhill accepts a condition to this effect.
7. Given the above, the Council's concerns rest with its first ground of refusal. We now turn to the consideration of the matters that remain in dispute.

Is the height of the building acceptable having regard to the strategic and physical context of the land?

1. The Council submits that the proposed development is too high having regard to both the physical and strategic context of the land.
2. It contends that the strategic context does not support a building of this height. It says that the land is within a small Neighbourhood Activity Centre [NAC] as identified at Clause 21.01 of the MSS. The Council acknowledges that planning policy supports more intense redevelopment in Activity Centres. However, it argues that a small NAC is at the bottom of the hierarchy of activity centres, and therefore a location where new development should be designed to 'fit the context', as specified in the policy at Clause 11.04-2, rather than facilitate the degree of change proposed in this case. It says that State policy directs the most intense development and greatest degree of change to higher order centres, such as Principal and Major Activity Centres [PACs and MACs].
3. The Council advised that the current MSS has been reviewed through Amendment C161 and an adopted version of the amendment is now with the Minister awaiting approval. The Council notes that under the Amendment C161 MSS, the land remains within a small NAC and, unlike other areas, is not where urban consolidation imperatives outweigh the need for new development to respond to the site context. It is however, identified as a 'substantial change area' suitable for medium and higher density housing.
4. In considering the above argument, we note the Council's position is that a 4 to 5 storey building would be acceptable on this site. It agrees that a three storey podium is appropriate and says that one or two levels above the podium, setback from the street edge, would result in a response which it says 'fits the context'.
5. We have reviewed the planning scheme's policies, both as they exist and as proposed under Amendment C161. We agree with the view expressed by both the Council and Glenhill that Amendment C161 should be considered as it has been adopted and forwarded to the Minister following an independent review process. It is clearly a seriously entertained planning proposal and requires consideration.
6. In considering the current policy position we note that State policy 'encourages a diversity of housing types at higher densities in and around activity centres', 'Opportunities for the consolidation, redevelopment and intensification of existing urban areas' and the creation of a 'network of activity centres' where the role and function of activity centres is defined having regard to, amongst other things, 'preferred uses, scale of development and links to the public transport system'
7. Specifically, with respect to NACs, Clause 11.04-2 states:

Encourage higher density housing in and around Neighbourhood Activity Centres that is designed to fit the context and enhances the character of the area while providing a variety of housing options for different types of households.

1. Our analysis of State policy is that higher density housing is specifically contemplated and encouraged not only within, but also around, a NAC. The notion of higher density housing within a NAC, particularly one where land is underutilised, comprising a centre which contains redevelopment opportunities, is well served by public transport and has a high level of accessibility given its proximity to Melbourne's arterial road network is clearly in line with State policy.
2. The MSS, as its stands, notes there is a need to 'cater the diverse housing needs of the municipality's existing and future population' and that 'population projections indicate a continuing need for accommodation for smaller households'. It also directs residential development to large redevelopment sites where the infrastructure capacity can be optimised.
3. There is clear direction given by broad strategic policy that increased housing densities are specifically contemplated in this type of location. Development expectations are, however, tempered by the qualification that such development must fit the context and 'respect the character of adjoining residential areas'.
4. We have reviewed the policies at Clauses 22.02, 22.05 and 22.06 and find that they do not conflict with the general strategic intent set out above. Those policies do not work against increase housing in NACs, rather, they express a position, consistent with state policy and the MSS, that new development should fit the context, respect the character of residential areas and not have adverse or unreasonable impacts on amenity. We accept that these policy requirements are important in assessing this proposal. Provided these matters are satisfied, we do not accept that a 7 storey building is inappropriate having regard to the strategic context
5. The Council argues that the level of development is too much for a NAC at the lower end of the hierarchy. It argues that the centre's location at the bottom end of the hierarchy brings with it an expectation of lower scale development compared to that found in higher order centres such as PACs or MACs.
6. In principle, we do not disagree with the general proposition that the most intensive forms of development should be concentrated in higher order centres. However, in cases like this, where there is no specific direction given with respect to height either through policy or an overlay, an assessment that relates specifically to the context at hand must be made. We agree with Glenhill that it is not as simple as saying that to respect the Activity Centre hierarchy, buildings within NACs must be lower than those in higher order centres.
7. The difficulty with the Council's proposition is illustrated by the presiding member's observations about the approach adopted by the Council in recent times. In Workshop Architecture v Stonnington CC[2], the Council refused an application for a four storey building in High Street Armadale. In that case, it took into account an adjacent heritage overlay and the fact that the building in question was separated from its nearest residential neighbour by a three metre laneway. However, in this case, the Council submits that a 4-5 storey building would be appropriate albeit that the site is well within a small NAC. We are not saying that the Council is wrong or being inconsistent with respect to the Activity Centre hierarchy issue, we simply say that in determining whether or not a specific proposal meets the context, an assessment of the specific context, both strategic and physical must be made.
8. In relation to the proposed MSS, we note that the subject land remains within a small NAC, well separated from residential development. However, there is a major difference. Like may other planning schemes, the proposed MSS identifies areas for substantial, incremental and minimal change. The proposed MSS makes it clear that the preferred location for higher density housing is in and beside Activity Centres. Like the existing MSS, the proposed MSS brings with it an expectation that new residential development in and beside smaller activity centres respects the character and amenity of surrounding residential areas. But importantly, the proposed MSS makes it clear that a key issue for the municipality is the optimisation of the locations of locations for higher density residential development[3], directing the majority of new housing to locations where the highest level of accessibility to both an Activity centre and the Principal Public Transport Network, away from the residential hinterland.
9. On our assessment, the subject land is clearly within an area earmarked for substantial change where buildings of 11 metres or more are contemplated. Areas of substantial change include land in or beside a small NAC. The land clearly meets this requirement. Further, we find that the proposal meets the criteria set out in the strategies for substantial change areas[4] in that the proposed height is not contrary to an adopted structure plan or Urban Design Framework. There is no evidence to suggest inadequate services or infrastructure are available, the Council and Vicroads agree that access onto the main road is acceptable and the land is not part of a heritage precinct or individually listed as a heritage building.
10. We find that, if the proposed development responds appropriately to its physical context, the redevelopment of this land for a 7 storey building is not impeded by policy. It would be directly in line with the latest policy position adopted by the Council in its Am C161 MSS.
11. Accordingly, we now turn to our assessment of the proposed building against the physical context.
12. The site's physical context is within a small NAC, one which currently provides few of the 'services and conveniences' that are said to characterise a NAC. Further, this is a context where the provision of transport infrastructure has largely destroyed any urban design coherence- it is a one sided, traffic dominated centre containing a small restaurant and several service retail outlets. Several shops are vacant, a situation possibly exacerbated by the designation of the adjacent railway crossing by government as one of three being assessed for grade separation, and indicated by conditions on permit requiring designated floor levels and door locations for the proposed shops.
13. Our observations support the evidence of Mr Sheppard that the scale of the 3-4 storey podium with higher form set back above it sits well within the existing Edwardian streetscape. This relationship is strengthened by the proposed awning which steps down Burke Road. Further, we consider that it is likely that the remainder of the Burke Road interface will be redeveloped in the medium term. The proposed podium also relates well to the scale of the adjacent office building in Malvern Road.
14. The four above podium levels are set back and utilise a curved glazed façade treatment, in contrast to the solidity of the walls below, with the result that this part of the building reads as a distinct element within the proposal. Balconies recessed into the main form serve to further lighten the appearance of parts of the upper four storeys.
15. A further factor relates to the land's corner location which exposes the site to this wide intersection. In our view, this context allows for the presentation of a tall building which adopts the urban design principle of 'marking' the corner of the intersection, much the same way that the height, solidity and robustness of the church marks the opposite corner. A subdued approach, which involves the podium with a reduced upper section would work against this principle, resulting in a weaker built form where the upper levels erode back away from the intersection rather than presenting a strong urban form that will help to re-establish the dominance of buildings, rather than road and rail infrastructure, as the character drivers of the immediate area.
16. The subject land is also well away from residential properties. There are no residential properties directly to the north or south. The 3-4 storey office building to the west of the land separates it from those in Glenarm Road. Malvern Road creates a degree of separation, as does the intersection, Burke Road and Peace Park. This site clearly has the advantage of having no direct residential abuttal. It will be seen, but at a distance. In this context, we do not accept that the building will have an overwhelming impact on the neighbouring residential areas given the degree of separation.
17. For reasons that we will set out later, we find that the proposed development will not have unreasonable impacts on the significance of the church and the amenity of nearby residential properties.
18. In principle, we find that the subject land can accommodate a 7-storey building, generally in the form proposed having regard to both the physical and strategic context.

1. For reasons outlined earlier, we find the podium tower arrangement acceptable and the contemporary architectural styling appropriate.
2. At the hearing, we raised the issue of the visual impact of the proposal as one travels east along Malvern Road. Due to the configuration of the road and the design of the adjacent office building, the building will be clearly seen apparently in the middle of the road, for a considerable distance. It will be substantially higher than the residential development lining Malvern Road.
3. Approaching from the east along Malvern Road or from the south along Burke Road, the upper levels, set back from the podium at the street interfaces, are further eroded by the curved form of the building and glazed balcony treatment. We find this an acceptable presentation.
4. Our concern is rather with the design of the western end of the building. As we observed above, it will be prominent for a considerable distance coming from the west. We consider that the transparency shown in the images of the glazing to corner bedrooms on the western façade will not be achieved in reality. We think that this prominence requires a building that is designed in the round. The current proposal for the western side of the building presents as the 'rear end' when it has an equal or greater exposure than the eastern end. It should be recast to achieve the authority of the eastern façade, in terms of its form and treatment.
5. The prominence of the building from the western approach also heightens the importance of the materials and finishes in the design of the building. The images show the solid walls of the podium as textured, but it is important that these have a level of visual interest sufficient to be appreciated from some distance. Likewise, increasing the depth of window reveals within on the western façade of the podium would emphasise the solidity of these walls which anchor the building to the street. This would also further differentiate the base of the building from the lighter treatment of the glazed above podium level. Together with a revised massing and articulation of these upper floors to reflect that evident on the eastern façade discussed above, we consider that the design of the building is acceptable. This can be implemented by permit condition bearing in mind the guidance we provide in these reasons.
6. We accept Mr Sheppard's evidence that the proportions of the building, in particular the relationship of the podium and the upper levels are an important indication of an acceptable height. Having reviewed both the design and the physical context of the site, we have concluded that, with the refinements outlined above, a seven storey building is an acceptable outcome in this particular location.
7. Mr Crowder assessed the design in terms of the amenity of future residents. His evidence was that the amenity of units 5 and 15 would be improved if their layout reflected that of units 4 and 14. We agree with him and will require that amendment to be made by permit condition
8. Both Mr Crowder and Mr Sheppard considered equitable future development of the site to the north, a matter requiring consideration under the Design Guidelines for Higher Density Residential Development. At first floor level, living room windows are set back three metres from the northern boundary, but balconies are generous with a 21m2 minimum size. Above this level, the set back to living room windows is 4.5 metres. Mr Crowder considers it is reasonable to expect a similar setback by any development to the north. Mr Sheppard's opinion is that future units on these sites may be developed with an east-west orientation which may provide further separation. We agree that the design of the north facing apartments does not unreasonably inhibit future development on adjacent sites. We agree that the amenity of the north facing apartments is acceptable.
9. These apartments on the first and second floor with south facing balconies are designed in a way which allows for some west or east exposure - we also find this acceptable.

Will the proposed building detract from the significance of St Andrews Church?

1. St Andrews church is directly to the south of the subject land on the southwest corner of the Burke Road/Malvern Road intersection. The church is covered by a site specific heritage overlay control. Planning policy with respect to both heritage and urban design seeks outcomes whereby the heritage value of a building is protected, while landmark qualities are maintained.
2. Residents and council were concerned that the height and scale of the proposed building would have an adverse impact on St Andrew's Church.
3. Due to the road configuration, the church is not apparent when approaching from the south, east or west until one is at the intersection of Burke and Malvern Roads. From the north, once the level crossing has been navigated, the church is clearly and distinctly visible.
4. Our observation is that an appreciation of the church's robust solidity will not be affected by the new building, as it is well set back from both road frontages. Together with the width of Malvern Road and the openness of the intersection we consider that St Andrews will retain its strong identity as a local heritage place.
5. We conclude that views of the church will not be unacceptably interfered with by the proposed building opposite. When the two are viewed together, the images presented at the hearing reveal that the relative heights of the two structures are compatible.

Will the proposal result in unreasonable traffic impacts?

1. Mr Boekel and Ms Nixon express concerns about traffic, particularly the potential for increases in traffic at the intersection, difficulty in accessing the subject land given its proximity to the intersection, and also the potential impact of additional cars on neighbouring streets.
2. There is no doubt that Burke Road and Malvern Road carry many thousands of vehicles each day and that the intersection is congested at peak periods due to the confluence of these roads and the delays caused by the operation of the railway boom gates to the north of the subject land.
3. While we understand the concerns that residents raise in what can be difficult and trying traffic conditions, the reality is that the traffic impacts associated with this proposal are modest.
4. Mr Fairlie's evidence is that the proposal will generate about 186 vehicle trips per day, with about 26 occurring in each peak hour. This is not a substantial amount of traffic in an environment where many thousands of vehicle movements occur each day.
5. We accept that given the land's proximity to the intersection, movements into and out of the basement car park will be difficult from time to time, mainly at peak hours. However, we accept Mr Fairlie's proposition that the future residents and staff of this building will become accustomed to how to best access the land, in terms of direction, depending on their experience. As explained by Mr Fairlie, there are various ways which residents and staff will approach the land, and their choice of approach and or departure will depend on various factors including the time of day, traffic conditions and their own driving preferences. We do not agree that these preferences, which may include making right turns from Malvern Road into nearby streets, will add greatly to traffic in those streets. It is unlikely that it will be noticeable.
6. We also note that the proposal has been considered by three traffic engineers, the Council, Vicroads and Mr Fairlie, all of whom find the traffic impacts acceptable.
7. In relation to other traffic matters we note that the proposal provides an on site loading bay suitable for a waste collection vehicle and for commercial vehicles and vans which are of a size likely to make deliveries to the small shops and offices proposed in this case. We think it unlikely that there will be much conflict between commercial vehicles seeking to use the loading bay, given the relatively small size of the commercial tenancies.

1. Under clause 52.06, 71 car parking spaces are to be provided. the proposal provides 57, 14 short of the 'as of right' mark.
2. Mr Boekel and Ms Nixon express concerns about the adequacy of the car parking spaces. We do not share their concern. The car parking spaces are sufficient to ensure that the residents of 46 of the 48 apartments has access to an on site car space. Two apartments will not have such a space. We do not consider this unacceptable, given the small number of apartments involved, the sites access to what can only be described as excellent public transport and the reality that at the very least, the residents of some apartments will not have a car as clearly demonstrated by car ownership rates set out in census data. The on site provision for shop and office staff is reasonable given the size of the tenancies proposed, the availability of public transport and the findings of the studies set out in Mr Fairlie's evidence.
3. We also accept the allocation of spaces generally as set out in Mr Fairlie's report. We agree that there is opportunity for office car spaces to be shared with residential visitors after hours, when the offices and other neighbouring businesses are likely to be closed, commuter parking in nearby streets is gone and residential visitor demand is likely to be at its highest.
4. We conclude that the amount of parking provided acceptable
5. The respondents also raise concerns about the reliance on mechanical car parking, particularly its ease of use and reliability. These systems are no longer a new form of technology having been used in many residential developments. It is now an accepted technology and subject to appropriate design, rarely opposed by Councils as they have become familiar with and more accepting of these systems. We have no evidence to find that the use of this form of technology, which is recognised as being appropriate way of providing parking in the recently revised Clause 52.06, is inappropriate for this development.
6. We find the parking provision acceptable, in its form and layout. In relation to a condition about details, we consider that it would be prudent to require further information to be provided on the plans to demonstrate compliance with clause 52.06 and/or the Australian Standard which Mr Fairlie says this proposal achieves.

Will the proposal result in unreasonable impacts on the amenity of the area?

1. Other issues were raised about the impact on amenity.
2. In relation to concerns about overlooking of residential properties, the reality is that this development is simply too far from the nearest sensitive residential private open space areas and windows for overlooking to be a concern.
3. It is inevitable that there will be disruption during construction, however, this is not an appropriate reason to stop development. There will be inconvenience, but it will be short lived. Through the preparation and implementation of a Construction Management Plan, which is required by permit condition, the construction process will be managed to the satisfaction of the Responsible Authority.
4. We are unable to agree that the appearance of blinds, or difficulty in cleaning windows is a basis for rejecting this proposal.

1. For these reason we find the land is a suitable candidate for redevelopment for the uses proposed. The strategic and physical context support its redevelopment for a 7 storey building, subject to some changes as discussed in our reasons. We find the design appropriate in that it will fit the context, will not have unreasonable impacts on the Church or the amenity of the surrounding residential hinterland while providing satisfactory amenity and facilities for future residents and occupiers. We have settled the conditions taking into account our reasons, the evidence and submissions.

Use and development for dwellings, shops and offices, reduction of car parking, new access to a Road Zone Category 1 and removal of easement on certificate of title volume 4535 folio 879.

1. Before the commencement of the development, three (3) copies of plans drawn to scale and fully dimensioned to the satisfaction of the Responsible Authority, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the advertised plans (Council date stamped 19 September 2012) but modified to show:

1. The notation on TP 03(b) that reads 'Office and shops car park' to read 'Office, shops and visitor car park'.
2. Notations and details demonstrating that the car parking layout such that the headroom clearances (especially in relation to the small rigid vehicle), aisles, parking spaces, dimensions of column locations (including removal of columns from the aisle), ramp gradients (outer radius), sightline at the car park entry point to Malvern Road, are all generally in accordance with Clause 52.06-8 or Australian Standards.

1. The configuration of Apartments 5 and 15 modified in line with the relationship between Apartments 4 and 14.

1. Any changes as required by the Waste Management Plan required under condition 4 of this permit; an ESD report under condition 5, all to the satisfaction of the Responsible Authority.
2. Any changes as required by conditions 20, 21, 22 and 23 (VicRoads conditions).
3. A notation that the vehicle crossing where it intersects with the footpath be at the same level as the footpath.
4. The length of one of the stacker systems extended to 5.7m to cater for 5.2 metres long vehicles.
5. The wall shown on the west side of the accessway on TP 04 to be deleted consistent with the western elevation.
6. The western elevation (podium and tower) to have improved presentation and articulation which achieves a similar standard as the building's facade facing Burke Road/Malvern Road intersection.
7. A schedule of materials, finishes and colours, including a materials board.

1. The use and development allowed by this permit and shown on the plans endorsed to accompany the permit must not be amended without the written consent of the Responsible Authority.

1. Before the development starts, a plan showing the removal of the easement as authorised by this permit must be registered at the Office of Titles to the satisfaction of the Responsible Authority.

1. The development hereby permitted must not commence until the owner of the land enters into an agreement with the Responsible Authority pursuant to the provisions of Section 173 of the Planning and Environment Act 1987 in which it must be covenanted as follows:

1. That the requirements contained in this agreement must form part of any lease of the premises which the owner of the land under this permit may enter into with another party;
2. Pursuant to the provisions of Section 181 of the Planning and Environment Act 1987 this agreement must be registered with the Registrar of Titles and must run with the land;

1. The owner of the land under this permit must pay the legal costs and be responsible for the preparation and registration of the said agreement

1. That the owner/developer accepts drainage runoff from the Right of Way is discharged into the internal drainage system of the development.

1. Concurrent with the endorsement of plans, a Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan must provide for onsite collection of waste and recyclables and be generally in accordance with that provided by Waste Space Solutions dated 2 August 2012 but modified to show:

1. Correction between the WMP and the plans as to whether there is two or one bin store.

1. Strategies and suggested actions for minimizing the generation and sorting of wastes.

1. Provision of guidance to stakeholders as to how particular waste is disposed (i.e. green waste, hard waste etc).

When approved, the plan will be endorsed and will then form part of the permit. Waste collection from the development must be in accordance with the plan, to the satisfaction of the Responsible Authority.

1. Concurrent with the endorsement of plans, an ESD report that responds to each category of Sustainable Design in the SDAPP program must be submitted to and approved by the Responsible Authority. This must include a response to the WSUD Policy to the satisfaction of the Responsible Authority.

1. Prior to construction works commencing a Parking Management Plan is to be submitted to and approved by the Responsible Authority and shall:

1. Designate parking spaces to the individual tenancies/dwellings.
2. Detail the signing and line marking of parking spaces.

1. Detail any access controls to the parking area, such as boom gates which shall take into account the required queue length required as per section 3.4 of AS 2890.1.

1. Detail a maintenance program for the car stackers in accordance with the manufacturer's specifications.

1. Before the development starts, three copies of 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 CMP will form part of the permit and must be implemented and complied with at all times to the satisfaction of the Responsible Authority. The CMP must include, but not be limited to, the following:

(a) details of hours of demolition and construction;

(b) methods to contain dust, dirt and mud within land, and the method and frequency of clean up procedures;

(c) protection measures for features of the land to be retained including vegetation, retaining walls, buildings, other structures and pathways;

(d) details of delivery and unloading points and expected frequency;

(e) details of a liaison officer for contact by residents and the Responsible Authority in the event queries or problems are experienced;

(f) details of the movement of construction vehicles to and from the land to avoid traffic hazards in and around the land;

(g) details of parking facilities for construction workers including using the basement for parking of construction vehicles;

(h) measures to minimise the impact of construction vehicles arriving at and departing from the land;

(i) an outline of requests to occupy public footpaths or roads, and anticipated disruptions to local services;

(j) the processes to be adopted for the separation, re-use and recycling of demolition materials;

(k) the measures to minimise noise and other amenity impacts from mechanical equipment and demolition/construction activities, especially outside of daytime hours; and

(l) measures to protect the stormwater drainage system so that no solid waste, sediment, sand, soil, clay or stones from the land enters the stormwater drainage system.

1. The ground floor shops must only operate between the hours of 7am and 11pm on any day unless with the prior written consent of the Responsible Authority.

1. Noise emanating from the subject land must not exceed the permissible noise levels when determined in accordance with State Environment Protection Policy (SEPP).

1. Prior to the development commencing a report for the legal point of discharge must be obtained from Council and a drainage design for the development must be prepared by a suitably qualified Engineer in compliance with Council's report prior to a building permit being issued. The drainage must be constructed in accordance with the Engineer's design.

1. The footpath levels in Burke Road and Malvern Road must not be altered unless otherwise agreed in writing by the Responsible Authority.

1. Air conditioning and other plant and equipment installed on the subject buildings shall be so positioned and baffled so that no noise disturbance is caused to occupiers of adjoining properties and are screened from public view to the satisfaction of the Responsible Authority.

1. Prior to occupation of the building or commencement of use, the existing vehicular crossings made redundant by the building and works hereby permitted must be broken out and re-instated as standard footpath and kerb and channel at the permit holders cost to the approval and satisfaction of the Responsible Authority.

1. The new crossover must be constructed to VicRoads' Crossing Specifications unless otherwise approved by VicRoads.

1. Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.

1. The developer is to bear the cost to remove and reinstate any street furniture or infrastructure items to provide the required access to the proposed development.

1. All services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.

1. The walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.

1. The floor level of shop 1, as shown on drawing TP04 Revision A by Terry Harper Architects, must be raised to a level that is not lower than 26.300m AHD. The pedestrian access to shop 1 from Burke Street must be located at the southern end of the shop.

1. Prior to the commencement of the permitted development, a functional layout drawing, generally in accordance with drawing 10964AT2/td by Ratio Consultants, must be submitted to VicRoads for approval showing

1. The vehicle access to the property Malvern Road. 2. Appropriate pavement marking and signage reinforcing that left in/left out access arrangement and banning the right turn manoeuvre into the subject site.

1. Pram crossings/adequate pedestrian facilities at Malvern Road vehicle access point.

1. Location of the directional sign and service poles on Malvern Road. 2. Swept path diagrams demonstration that appropriate design vehicles can enter and exit the same site.

1. Prior to the commencement of use of the permitted development, all works as shown on the approval functional layout drawing must be carried out to the satisfactions of the Responsible Authority.

1. The edge of the awnings on Burke and Malvern Roads must be located a minimum of 750mm from the kerb line.

1. All sections of the ground level not constructed from glass must be painted with a clear finish "anti-graffiti protective coating" designed for the ease of removing graffiti. Any graffiti must be removed within 7 days to the satisfaction of the Responsible Authority..

1. This permit will expire if one of the following circumstances applies:

1. The development is not started within three years of the date of this permit.
2. The development is not completed within five years of the date of this permit.

1. The use is not commenced within six years of the date of this permit.

1. The use is discontinued for a period of two years or more.

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

[2] Application for Review No. P1309/2012