Global Alpha Group Pty Ltd v Boroondara CC [2013] VCAT 1929

1. The decision of the Responsible Authority is affirmed.
2. In permit application PP13/00181 no permit is granted.

Mr Dominic Scally, Solicitor of Best Hooper Solicitors. Written and oral evidence given by:

• Mr Jamie Govenlock, Town Planner of Urbis Pty Ltd.
• Mr John Patrick, Landscape Architect of John Patrick Pty Ltd.
• Mr Simon Davies, Traffic Engineer of GTA Consultants (Vic) Pty Ltd.

Mr David Song, Town Planner of Song Bowden Planning Pty Ltd.

Mr Andrew Clarke, Town Planner of Clarke Planning for Ms Sally Edwards; Dr Rodney Westhorpe OAM, Professor Paul Gleeson for himself and Ms Christine Troup, Mr Paul Healy, Ms Isabella Tonel.

Construction of 34 dwellings within a 3 storey building and basement parking for 35 vehicles.

Cl. 32.01-4 (the construction of two or more dwellings on a lot in R1Z).

Cl. 52.29 (create or alter access to a road in a Road Zone Category 1).

I undertook an accompanied inspection of the review site, all the adjoining sites and the locality on the second day of the hearing.

The review site is located on the northern side of Cotham Road. It is rectangular in shape, has a frontage of 40.23 metres, a depth of 47.55 metres and an area of 1,594m2.[1] It contains a partly demolished single storey dwelling.

1. The planning world as we know it is changing. Amendment VC75 gazetted in December 2010 was the first step. Although in some ways a fairly minor change, it removed references to Melbourne @5million and policies relating to intensive housing development along public transport corridors and around train stations from Clause 16, which were at that time newly included in the Planning Scheme.
2. More recently, in 2013, a suite of new residential zones were included in the Victoria Planning Provisions (VPP). These are to be progressively introduced over the next 8 months to replace existing zones. At present the only planning scheme to have implemented the new zones is the Glen Eira Planning Scheme and they were introduced without exhibition as a Ministerial amendment. The selection of the new zones in Glen Eira was based on a translation of the pre existing change categories into which the municipality had been divided - Minimal, Incremental and Substantial Change.
3. Other municipalities such as Whitehorse and Stonnington are moving in a similar direction and are seeking to translate existing policy frameworks into the new zones. Boroondara is also seeking to introduce the new zones and Council at a meeting on 16 September 2013 resolved to request the Minister approve Amendment C190 pursuant to Section 20(4) of the Planning and Environment Act 1987. If agreed by the Minister it would be result in a similar scenario to Glen Eira of the new zones being introduced without public exhibition. At the hearing I was provided with a copy of the draft documents considered by Council, including the proposed residential zones endorsed by Council. These show the great majority of Boroondara included in the Neighbourhood Residential Zone with other large areas in the General Residential Zone. With some minor exceptions, the north side of Cotham Road east of Kent Street is included in the Neighbourhood Residential Zone.
4. Although Mr Govenlock was criticised for suggesting that applying the same principles underpinning Stonnington's Amendment C161 would result in Cotham Road being included in a significant change area, I can understand his sense of frustration at the apparent inconsistencies across municipal boundaries and the fact that sites in Stonnington on the PPTN and without heritage overlays are proposed to be included in significant change areas but sites with similar characteristics in Boroondara are to be included in the Neighbourhood Residential Zone where minimal change is allowed.
5. However there are important differences underpinning the proposed changes in the two municipalities. Although both municipalities have undertaken recent strategic studies to justify the new zones, what is proposed in each municipality to a large extent reflects existing policies in the respective planning schemes. For example, the Stonnington Planning Scheme at Clause 21.02-2 (Height and Density) already has as policy to support development higher than two storeys on land shown on the Strategic Framework Plan - namely land with a frontage to a Road Zone Category 1, Principal Activity Centres, and identified gateway locations and large sites. It is my understanding that Amendment C161 refines that existing policy direction - at least in terms of the issue raised by Mr Govenlock.
6. Policy in the current Boroondara Planning Scheme also directs more intensive development to certain geographic areas. The Residential Framework Plan at Clause 21.07 identifies mixed use corridors and areas having potential for higher density development which is supplemented by one of the strategies in Clause 21.07-3 which is to increase residential development opportunities (including higher density development) in and around commercial centres and other strategic locations. Importantly, Cotham Road is not in a mixed use corridor or near an area marked for potential higher density development. The Cotham Village NAC is identified as a commercial centre where shop-top living is encouraged. Comparing the Residential Framework Plan and the proposed zones in Amendment C190 suggests a close correlation between the old and the new - certainly insofar as the area around the review site and to the east and north is concerned.
7. The point is not whether I agree with Mr Govenlock's comments about how the new zones should be applied in Boroondara based on a consistent approach to sites with similar locational attributes (i.e. large site areas, on the PPTN, close to activity centres and without any overlays or physical constraints). The point is that Boroondara City Council is seeking to apply the Neighbourhood Residential Zone to the review site and other land along Cotham Road. If applied as proposed, it would effectively prohibit taller buildings exceeding the mandatory height limits (8 metres and 9 metres on sloping sites) or more than two dwellings on a lot. It would also introduce more stringent standards for site coverage, permeability, provision of canopy trees, side and rear setbacks, walls on boundaries and private open space.
8. It would represent a dramatic change, not just for future development on the review site, but it would also change expectations about how the neighbourhood character might evolve in the future.
9. However, these changes to zones are in the future. As I observed in a recent case in Seymour Grove Camberwell[2], even if the new residential zones are gazetted without exhibition, transitional provisions allow applications lodged prior to the gazettal date to be considered without being limited by the new restrictions on height or maximum dwelling numbers.
10. In the meantime, I am required to consider the application on the basis of the current planning controls and provisions. Those controls and provisions are quite complex and include State and local planning policy frameworks, zone controls and other specific provisions. Despite that complexity a number of key themes or directions can be distilled to guide consideration of applications for medium density development.

What are the key policy themes or directions set by the current Planning Scheme?

1. The key themes or directions set by the Boroondara Planning Scheme for future residential development can be summarised as follows:
   1. Increase the supply of housing in existing urban areas by facilitating increased housing yield in appropriate locations, including under-utilised urban land.
   2. The focus for new housing is to be in activity centres, employment corridors and at other strategic sites.
   3. Strategic (redevelopment) sites are those in and within easy walking distance of Principal Activity Centres such as Camberwell or Major Activity Centres such as Kew and Glenferrie Road, in or abutting Neighbourhood Activity Centres such as Cotham Village, on or abutting the Principal Public Transport Network (PPTN) such as the Cotham Road tram and able to provide 10 or more dwellings.
   4. Development must respond to its context in terms of urban character, cultural heritage, natural features, surrounding landscape and climate.
   5. Development is to be encouraged on sites with good access to activity centres and other facilities to reduce the need for travel and hence the need for parking.
   6. Development is to be encouraged that allows for increased use of public transport, cycling and walking.
   7. On sites identified in a mixed use corridor or on land having potential for higher density development as shown on the Residential Framework Plan in Clause 21.07.
   8. Higher density housing in and around Neighbourhood Activity Centres must be designed to fit the context and enhance the character of the area while providing a variety of housing options for different types of households.
   9. Neighbourhood character considerations specifically relate to existing not preferred future character.
   10. New development should provide choice (variety and affordability) in housing types.
   11. The existing housing stock and residential use is to be protected.
   12. The present amenity and high standard of development including heritage fabric is to be maintained and enhanced.
   13. Landscapes including the green and leafy environment (the 'Garden Suburb') are to be conserved and enhanced.
2. I accept this is a somewhat simplified list but I consider it provides a useful snapshot of the residential development outcomes being sought in Boroondara.
3. In addition to these key policy themes, it is necessary to take into account the specific provisions of the Residential 1 Zone and any Overlays that may apply. In the case of a development involving two or more dwellings on a lot it is also necessary to meet the requirements of Clause 55 (ResCode).
4. Having regard to these policy and control outcomes, the basic question to be answered is:

Does the proposal represent an acceptable response to these residential development outcomes?

1. To help answer this question I consider the application can be assessed based on an analysis of three key issues or questions as follows:
   1. Does the Residential 1 Zone and relevant policy support redevelopment of this site with a building of the form and scale proposed?
   2. Does the new building represent an acceptable response to its site context and to neighbourhood character, and are there any unacceptable external and internal amenity impacts?
   3. Are the car parking and vehicle access arrangements acceptable?

Does the Residential 1 Zone and relevant policy support redevelopment of this site with a building of the form and scale proposed?

1. The permit application is seeking approval for a three storey building containing thirty-four dwellings above basement parking for thirty-five vehicles. A complete waiver is being sought for visitor parking although the applicant has indicated that it can provide three visitor parking spaces to satisfy the draft condition recommended by the Council officer prior to Council refusing the application.
2. Although Council staff recommended approval, Council resolved to refuse the application on the following seven grounds:
   1. The proposal will provide inadequate visitor parking on-site, increasing demand for on-street parking to the detriment of residents in the surrounding streets.
   2. The proposed driveway will not provide a convenient vehicle passing area to the detriment of future residents of the development.
   3. The proposed driveway entry will create potential safety issues for pedestrians due to inadequate sight lines.
   4. The proposed front setback of the development does not comply with the ResCode standard and is inadequate and will be detrimental to the Cotham Road streetscape and the neighbourhood character.
   5. The proposed development will be detrimental to the amenity of adjoining properties due to visual bulk created by the extent of built form throughout the site, building height and inadequate setbacks.
   6. The proposed building form, scale, roof and design detailing will be detrimental to the neighbourhood character of the area.
   7. The proposed development provides inadequate opportunities for replacement landscaping, which will be detrimental to the character of the area.
3. Nearby landowners and residents have lodged statements of grounds supporting Council's refusal. These grounds focus on non compliance with planning policy, non-compliance with ResCode, neighbourhood character, being an overdevelopment (number and density of dwellings, height, visual bulk, scale, setbacks, extent of built form, site coverage, lack of landscaping), detrimental amenity impacts to adjoining dwellings (overlooking, noise), poor internal amenity including inadequate private and communal open space, inadequate parking, poor design of the driveway and traffic impacts. Five attended the hearing to present written and oral submissions.
4. Mr Scally rejected these criticisms and submitted that the development was appropriate given the strategic support in the Planning Scheme for development of such a large site. In addition, he submitted that its location on a main road, on the Principal Public Transport Network (PPTN), close to the Cotham Village Neighbourhood Activity Centre, within an established residential area, and on land zoned Residential 1 without any overlays, all support a development of the scale proposed in this application.
5. Although much of the neighbourhood is covered by heritage overlays, the review site and other sites along Cotham Road are not affected by any design, neighbourhood character, landscape or heritage overlays aimed at recognising valued local character or providing particular guidelines or controls over new development. However, Clause 22.07 provides policy guidance about neighbourhood character and is based on the 1996 City of Boroondara Residential Urban Character Study. The review site is within Area 29. The study is now nearly 20 years old and, as I have remarked in previous decisions, I consider it is more a statement of what existed when the study was undertaken. The statement notes, amongst other characteristics, that:

Most houses are detached and of medium to large size, and many have generous setbacks and lush front gardens which contribute to the area's character. There has been a modest amount of multi-dwelling development and some quite recent house replacement of varying quality and style.

1. Given the emphasis placed in policy and Clause 55 (ResCode) on new development respecting and responding to existing neighbourhood character, it is important to recognise that the description for Area 29 is still largely accurate. On my inspection I observed several older style apartment developments in Kent Avenue as well as the new medium density development approved by the Tribunal on the corner of Cotham Road and Marshall Street. What is surprising given the locational attributes referred to by Mr Scally and Mr Govenlock, is the relatively little change that has occurred since 1996, particularly along Cotham Road which does not have the Heritage Overlay constraints that affects properties in the side streets running between Cotham and Park Hill Roads.
2. As discussed by Mr Clarke, Professor Gleeson and Mr Govenlock, Council has undertaken a reassessment of neighbourhood character and in September 2012 adopted new Character Precinct Statements. The new character assessment includes the review site within Precinct 11 which incorporates a much larger area than Area 29.
3. I accept that the new character statements are at a preliminary stage in the process of being included in the planning scheme. I note that Council did not rely on the statement in its submission. Although I agree with Mr Scally that not much weight should be put on the statement, Mr Scally's planning witness did make reference to the statement in his evidence statement. The value in the Precinct 11 statement lies in its usefulness in providing an updated description of existing character.
4. It includes reference to the housing styles including one and two storey Federation and interwar bungalows, Victorian houses and contemporary, rendered brick dwellings that often exhibit period reproduction detailing. It also notes that there are some two storey apartment buildings and villa units throughout the precinct. Front setbacks are noted as being 5 to 9 metres (as they were in the 1996 study), lot frontages are noted as being generally around 15 metres wide with variations across the precinct (in 1996 they were noted as being 20 metres or more), houses are noted as mostly having pitched roofs (in 1996 they were noted as constructed of terracotta), dwellings are noted as being generally detached with 1 to 3 metre setbacks from side boundaries, although setbacks of less than one metre are also present (in 1996 there is reference to detached one and two storey houses and multi unit blocks but no comment on side setbacks) and it is noted that mature vegetation and large trees feature throughout the precinct (in 1996 there is reference to medium sized front gardens, exotic vegetation and a dense cover of canopy trees).
5. As I noted in the previously cited Seymour Grove decision, one of the key differences between the 1996 study and the latest statements is the incorporation of design guidelines for each precinct. In the case of Precinct 11 they include objectives that seek, amongst other matters:
   • To maintain and enhance the landscaped setting of dwellings.
   • To maintain the existing backyard character and enhance the area's leafy feel.
   • To maintain the existing one and two storey scale and pitched roof character.
   • To ensure buildings do not dominate the streetscape or disrupt the existing streetscape rhythm.
6. Whilst acknowledging that these precinct statements are yet to be incorporated into the planning scheme, the latest documents are quite similar to the type of character described in the 1996 study and referenced in Clause 22.07.
7. Whilst respecting existing neighbourhood character is a major aspect of planning policy, the Residential 1 Zone and Clause 55 (ResCode), it is not the only factor that needs to be considered. There is also strong policy support for increased residential development on strategic redevelopment sites on the PPTN, close to activity centres, close to facilities such as schools, parks and places employment and where future residents have practical opportunities to catch public transport, cycle and walk rather than use motor vehicles.
8. There is therefore a tension between these two main strands of policy - one encouraging increased densities in a location such as this whilst the other strand seeks to respect existing character including the leafy 'Garden Suburb' environment. As with so many sites with similar characteristics to 145 Cotham Road, it is not a question of whether they should be redeveloped, but rather the degree to which they are redeveloped in built form terms. The number of dwellings in a development is not of direct relevance, although there is clear link between the number of dwellings on a site and the space (area) required for secluded private open space, car parking and storage. More dwellings can often result in difficulties in the satisfactory resolution of internal overlooking and overshadowing, internal amenity to rooms within dwellings and areas for landscaping.
9. If a development is considered to have stretched the boundaries too far it is not simply a matter of reducing the number of dwellings to make it acceptable. For example a development on the review site with half the number of dwellings could still have the same built form impacts such as length of building down the site, height, front setback, side and rear seatbacks, areas for secluded private open space, space for landscaping and driveway layout.
10. In principle, I consider there is considerable policy support for a more intensive residential development on the review site. However, despite that broad policy support and the many positive locational attributes of the site, I am not persuaded that a building of the particular form and scale proposed is an acceptable response to the site context. For the reasons I now discuss, I am not persuaded that the design is one that warrants support.

Does the new building represent an acceptable response to its site context and to neighbourhood character, and are there any unacceptable external and internal amenity impacts?

1. The expression 'squeezing the lemon until the pips pop' has been used in one of my hearings to describe a development that is simply trying to fit too much built form on a site. The more usual planning expression is 'overdevelopment'. Although not a term used in Council's grounds of refusal, submissions by both Council and neighbours include comments such as 'the building being overly ambitious', 'the density of development being excessive', 'too many units for a single block of land' and the building being 'visually bulky' and 'overwhelming'. More specifically, the development is criticised on the basis of excessive height, inadequate front side and rear setbacks, length of building down the site, inappropriate roof design, insufficient on-site parking, poor driveway alignment, inadequate and poorly positioned private open space, inability to provide landscaping in accordance with the policy outcomes sought for Boroondara as a 'Garden Suburb' and lack of communal open space.
2. Having heard these submissions together with the evidence of Mr Govenlock, Mr Patrick and Mr Davies and the submission by Mr Scally, I have not been persuaded that this proposal is one that warrants approval. Fundamentally the proposed application tries to achieve too much built form on the site. It pushes the boundaries of what is an acceptable development.
3. Whilst it is easy to point to some numeric ResCode standards that are not met with this proposal, I acknowledge that ResCode is not a tick-a-box exercise and that a development that fails to comply with such standards may still be acceptable provided all the objectives are achieved. It may also be that non compliance with one or more of the numeric standards does not result in a building that cannot be approved. For example, a building that exceeds the 9 metres height standard by 600mm as in this case may well be reasonable if the highest part of the building is a small element, well setback from boundaries and with no off-site amenity impacts. In this case the whole of the top floor exceeds the 9 metres height limit. Although I acknowledge that the top floor has to some extent been recessed from the floor below, seven two bedroom dwellings are located on the top floor and it has a total area of approximately 700 square metres or only 200 square metres less than the floor below. As such, the third floor is not a particularly recessive element, even though the use of a sloping 'mansard style' roof has visually ameliorated the height of the top level. It has also been used as device to achieve the ResCode B17 setback envelope at the top level. Despite criticism about the use of this roof design, I do not find anything inherently objectionable to it in character or design terms and would not refuse the application solely on the basis of the roof design.
4. Buildings must be assessed in totality - as a three dimensional form. It involves consideration of height, setbacks, horizontal and vertical articulation, materials, internal spaces including daylight access to rooms, external spaces including private and communal recreation areas, the need to provide screening and the internal impacts of providing such screening, space for landscaping and the how/where/adequacy of on-site parking and access. This is not an exhaustive list but it demonstrates the complexity of trying to assess whether a new building is worthy of support. Most of these were major points of contention between the parties.
5. An inadequate front setback has been identified by Council and neighbours as a serious shortcoming with the proposal. Both Mr Govenlock and Mr Clarke agree that the average of the two adjoining setbacks is 7.92 metres. In contrast, Council suggests that the average is 4.1 metres using the setback of the detached carport at No 147 that is sitting well forward of the front wall of the dwelling. I agree that the average should be 7.92 metres. I also note that even if the 4.1 metre setback suggested by Council is adopted, the proposed first floor balcony of Apartment 14 is just 3.67 metres back from the front boundary.
6. I acknowledge that the proposed building has a staggered setback at ground level that increases from 4.1 metres at the western side to 8.75 metres at the eastern side to respond to the very different setbacks of the adjoining dwellings at No 143 (3.94 metres setback) and No 147 (11.04 metres setback). In principle I agree with this staggered setback arrangement but consider that the starting point, or minimum setback at the western side, is insufficient. The two storey dwelling to the west is unusual compared to most dwellings along this section of Cotham Road because of its relatively small front setback. However it exists and forms part of the site context informing the design response for a new building on the review site.
7. Nevertheless, any assessment of the front setback and the two storey height needs to be considered having regard to the very small footprint and volume of built form. Although that dwelling has a very small setback, it only has a width of approximately 10 metres. That compares to the proposed building on the review site that has a width at first and second floors of over 20 metres. Whilst a building of 20 plus metres would not necessarily be unacceptable it is the combination of three storey form, large terraces that protrude well forward of the front walls of the building which sit forward of the average setback of the adjoining dwellings which is unacceptable. Whilst I would not necessarily suggest that the closest point of the building to Cotham Road should meet the 7.92 metres average referred to previously, a greater setback would provide a more recessive building rather than one which as presently designed would be overly dominant to the adjoining and nearby dwellings.
8. I later discuss landscaping in more detail, but the ground level paved secluded open space, double width driveway and overhanging upper level terraces serve to exacerbate the excessive visual dominance of the building when viewed from Cotham Road. Landscaping can help filter views of the building but ultimately the landscaping, and the way in which it can frame and filter views of the building, is strongly influenced by the front setback and extent of built form and hard surfaces within that setback.
9. Inadequate side and rear setbacks and unreasonable visual bulk to neighbouring properties were other matters raised in submissions opposing the development. It is often argued that compliance with the B17 side and rear setback envelope demonstrates that a building does not cause unreasonable visual bulk when viewed from neighbouring properties. Nothing could be further from the truth since simple use of the B17 setback envelope takes no account of the length of wall being measured. For example, the visual impact of a short 10 metre length of wall achieving the B17 envelope is likely to be entirely different to a 40 to 50 metre length of wall, particularly where that length of wall occupies a significant length of boundary with neighbouring properties. In this case, the review site abuts six neighbouring properties and therefore has the potential to have a significant visual impact on the rear yards of these properties. The rear yards of Nos 143 and 147 Cotham Road and 3 Ermington Place are most affected as the upper levels of the building are recessed away from Nos 5 and 7 Ermington Place and No 1 Hillcrest Avenue. During the hearing Mr Scally produced a number of plans that further recessed the building from the northern end of the site. Whilst these represent an improved built form for neighbours at the northern end of the site, the building still extends for a considerable length along the site.
10. I acknowledge that an attempt has been made to visually break up the length of the building by introducing two recessed alcoves - one on the east elevation and one on the west elevation. These are each 2.4 metres wide and extend into the building as far as the central corridor. I am not persuaded they achieve much in terms of visually breaking up or articulating the very long side walls except when seen from directly opposite. In oblique views they will be barely noticeable and will not in any discernible way reduce the visual bulk of the building. They do have the benefit though of improving internal amenity by providing natural daylight to inboard rooms and the central corridor at each level.
11. In relation to internal amenity, I raised concerns at the hearing about the way in which east and west facing balconies at first floor are overhung by balconies above and screened to 1.7 metres. It results in very poor amenity for these balconies given that only a narrow slit is open to the outside world. During the hearing Mr Scally tabled a revised layout for these balconies which attempted to respond to my concerns by increasing the setback of upper level balconies to increase exposure to the open air. I am also concerned about the location of secluded, southern facing ground level open space within the front setback. Not only does this result in the need for higher fencing to achieve acceptable levels of privacy but these spaces are also shadowed from the north and partly overhung and overlooked from terraces above. A larger front setback and different floor layout has the potential to improve or overcome these problems. The ground level secluded open spaces along the east, west and north boundaries are for the most part well below the ResCode minimum of 40 square metres, but are not unacceptable for an apartment style development where dwellings only have relatively small floor areas.
12. Whilst the changed balcony layout is an improvement, it reinforces my concern that too much built form is being placed on this site. It is not just this one shortcoming but the cumulative impact of all the matters I have discussed including height, extent of built form down the site, inadequate front setback including terraces protruding into the setback, location of ground level secluded open space within the front setback and extent of hard surfaces and lack of visitor parking (which I discuss in the next section).
13. What is required is a building or group of buildings which provide a greater front setback and more breaks in built form down the site. Whilst I am not suggesting that the site should only be developed for half a dozen or so townhouses, I am not persuaded that a single, three storey apartment style building positioned close to Cotham Road that does not provide breaks in the built form down the site is an acceptable response to the specific site context or the interfaces with six abutting residential properties.
14. Submissions also made comment about noise from equipment including air conditioners located on balconies. I acknowledge that the placement and baffling of plant and equipment is an important issue but it is one that can be revisited in any new proposal for the site. It becomes a particularly critical issue if bedrooms or small secluded space areas on neighbouring properties are located proximate to proposed plant and equipment.
15. I earlier made brief comment about landscaping in the front setback. The application proposes to keep a semi-mature Chinese Elm in the south east corner. The existing driveway is located very close to the trunk. I initially had some concerns about locating the new driveway well within the tree protection zone. However my inspection confirmed that the existing driveway is already located in this position and that there will be no additional encroachment into the tree protection zone. As discussed at the hearing, of more concern is the need to offset the driveway in order to retain the Chinese Elm. Although Mr Davies did not identify any vehicle access problems arising from designing the driveway in order to retain the Chinese Elm, I am not persuaded that the tree is so significant that the driveway should be designed as now shown on the ground floor plan. My own preference is for a more conventional and right angled driveway to be provided and for the Chinese Elm to be removed. I discussed this option with Mr Patrick and he confirmed that it would be possible to provide two new canopy trees on either side of a realigned driveway. Not only would this provide for additional taller landscaping near the driveway, but it also improves vehicle access as I discuss in the next section.
16. Although Council, Mr Clarke and other submitters were critical about the extent of landscaping, I consider that setting back of the basement from all boundaries provides a good opportunity for the in-ground planting of taller vegetation. Setbacks of 2 metres or more for upper level balconies allows space for canopy development. At ground level, paved courtyards still allow room for screening hedges along the western, northern and eastern boundaries. It is self evident that a different building footprint that responds to my concerns will allow for a different landscape response, including more space for landscaping in the front setback.

Are the car parking and vehicle access arrangements acceptable?

1. Council and residents raised concerns about traffic generation and access arrangements and noted that at certain times of the day traffic and parking around the review site can be quite congested.
2. Mr Davies was called to give evidence about car parking and traffic related issues and these were discussed with him, along with bin storage and driveway access arrangements.
3. Based on the parking requirements set out in Clause 52.06, the only reason a permit is required for parking is the 6 space shortfall in visitor parking. A total of 35 spaces are being provided for residents which is a number that complies with the rate included in Clause 52.06. Although neighbours expressed concern about residents parking in the street, the required number of spaces is being provided for each dwelling and there is no justification for requiring parking beyond that specified in Clause 52.06 since there is no request to reduce the number of resident parking spaces.
4. Visitor parking is a different matter. A total of 6 spaces are needed to meet the Clause 52.06 requirement for residential visitor parking. None are being provided on-site. Council's traffic engineers only supported the proposal on the basis that three visitor spaces were provided in addition to one space per dwelling on site.
5. The Planning Scheme allows for a reduction in on-site parking subject to the preparation of a Car Parking Demand Assessment. Clause 52.06-6 sets out what must be taken into account in such a Demand Assessment and Section 3.2 of Mr Davies's evidence statement provided such an assessment. His analysis suggests a rate of 0.12 spaces per dwelling or a peak demand of 4 visitor spaces.
6. As part his assessment, a series of parking surveys were undertaken along the northern and southern sides of Cotham Road between Kent Street/Barenya Court to the west and Belmont Ave to the east. Both sides of Cotham Road are affected by Clearways in the morning and afternoon peaks. At other times parking restrictions apply. Forty-one spaces are available in the survey area and a minimum of eighteen spaces were available at 1pm on Wednesday 6 February 2013. Maximum vacancy occurred on a Saturday evening when 36 spaces were available.
7. Although I accept that on-street parking is not close to saturation point, I am not persuaded that there should be a waiver of visitor parking despite the site being well served by public transport. Council's Traffic Engineers only supported the proposal if half the required visitor spaces were provided. Whilst I accept the site is on the PPTN, I am not persuaded that the very recently approved rates set out in 52.06 should be reduced or waived. I have in previous decisions observed that Government policies aim to reduce dependence on motor vehicles by, amongst other things, encouraging new development into areas already well served by public transport and by trying to better match housing and work places. However visitors do not necessarily have the same travel patterns as residents and it may not be as convenient for them to use public transport, or to walk or cycle.
8. Although Mr Scally asked Mr Davies to discuss the cumulative effect of allowing multiple waivers or reductions in on-site parking for different sites and the equitable access to the public resource of on-street parking and how best to achieve the equitable use of that public resource, I am not persuaded that the site should be exempted from providing its fair share of such parking. Nor am I persuaded that potential difficulties in managing visitor parking are valid reasons to waive or reduce such a requirement.
9. Although neighbours raised concerns about traffic generation from the 34 on-site resident spaces, I am not persuaded that the additional traffic from this site will have any discernable impact on the existing traffic volumes along Cotham Road. I accept that in peak hours it may take some time to exit the site but I also recognise that drivers, as is always the case, will respond to congestion or time delays by modifying their travel routes.
10. I also observe that the proximity of the site to the Principal Public Transport Network and easy access to a Neighbourhood Activity Centre, educational institutions and the like will likely encourage residents to leave their cars at home or limit their car usage, thereby reducing traffic movements even further than would be expected if the site was remote from such facilities.
11. I have previously made comment about the layout of the driveway and the way that it has been angled to avoid the Chinese Elm. I have already made it clear that I would accept removal of the tree if it meant the driveway could adopt a more conventional right angle alignment. I consider the current plan is sub optimal. Not only does it direct traffic in front of and right beside the courtyard for Apartment 2, but it also introduces an awkward protruding corner of the building into the driveway just where it turns to ramp down into the basement. Although Mr Davies did not have a concern about this arrangement, I am less sanguine about the ability of drivers to consistently negotiate this obstacle. It seems far preferable to avoid the problem in the first place rather than create something which has the potential to be an ongoing problem.

1. Based on my understanding of the outcomes being sought in the Boroondara Planning Scheme, I am not persuaded that the development as now proposed is sufficiently responsive to the site context. Whilst I acknowledge that the location on a main road, on the PPTN and close to a neighbourhood activity centre gives support for a more intensive residential development, unlike sites on other main roads in the municipality, this section of Cotham Road is not identified on the Residential Framework Plan as a mixed use corridor or having potential for higher density development. Not being identified on the Residential Framework Plan certainly does not preclude more intensive residential development, but it does suggest that any such development must be moderated, particularly on a site such as this which has six interfaces with the mostly quite secluded rear yards of adjoining residential properties.
2. In making these comments I want to stress that it is not just the number of dwellings which is at issue, but rather the extent of built form and building footprint. What is required is a different design approach - one that is scaled back so that it does not impose such visual bulk to the adjoining residential properties.
3. Whilst the opportunity to achieve additional dwellings on well serviced sites should not be wasted, I am not persuaded that an apartment building containing thirty-four dwellings with the shortcomings I have previously discussed, has struck the right balance in achieving the net community benefit 'test' set out at Clause 10.04 of the Boroondara Planning Scheme.

1. Having regard to all of the above, I will therefore order that the decision of the Responsible Authority be affirmed and that no permit is to issue.

[1] Including additional strips of land along the eastern and northern boundaries and now shown on the new title tabled at the commencement of the hearing.

[2] Vantage Point Projects Pty Ltd v Boroondara CC [2013] VCAT 1707