Monash Planning Scheme; Application under Section 82 of the Planning and Environment Act 1987 (the Act) to review a decision to grant a permit; Application under Section 80 of the Planning and Environment Act 1987 (the Act) to review conditions in a permit; Business 1 Zone; Office developments Streetscape presentation; Traffic and car parking; Varying interfaces.

Hallmarc Ltd v Monash CC [2007] VCAT 24

The decision of the Responsible Authority is affirmed. In permit application TPA/33660 no permit is granted.

The decision of the Responsible Authority is varied. The Tribunal directs that Permit No. TPA/33658 must contain the conditions set out in the Permit issued by the Responsible Authority on 19 May 2006 with the following modifications:

1 The permit preamble under the heading "What will the permit allow" is to be amended so as to read:

Use and development of the land for a two storey office building, an associated reduction in carparking under Clause 52.06 of the Monash Planning Scheme and alteration to the access arrangement on Ferntree Gully Road.

2 Conditions 1(a) and 1(c) are deleted.

3 Condition 1(b) is amended to read:

1(b) The allocation of 6 car spaces to each tenancy including the nomination of 1 car space for visitor use per tenancy. The disabled bay is to be relocated to the front setback area together with an additional visitor car space for shared use.

1(e) Provision of screening to the eastern elevation to prevent overlooking of the preschool located to the east using obscure glazing, unless otherwise to the satisfaction of the Responsible Authority;

1(l) The advertising panels on the front façade are to be sited below the height of the parapet. The sign dimensions must not exceed 3m x 1.8m. The existing parapet height may be increased by up to 0.5m to a height of not more than RL104.9.

8 The construction works associated with the permitted use/development and/or subdivision must only be carried out during the following hours:

•

Monday to Friday (inclusive) - 7am to 6pm;

•

Saturday - 9am to 5pm;

unless otherwise approved in writing by the Responsible Authority.

9(i) a requirement that construction works must only be carried out during the following hours:

•

Monday to Friday (inclusive) - 7am to 6pm;

•

Saturday - 9am to 5pm;

8 Condition 14 is deleted.

9 Consequential re-numbering of conditions.

The Responsible Authority is directed to issue a modified permit in accordance with this order.

Mr John Cicero, solicitor of Best Hooper. He called the following witnesses to give evidence:

• Mr Stuart McGurn, town planner

• Mr Michael O'Brien, traffic engineer

• Mr Tim Vernon, landscape architect

Mr Graeme Peake of counsel, instructed by Maddocks lawyers. He called the following witness:

1 These Applications concern two proposals for office developments at No. 2 Brandon Park Drive - one of which has been permitted by the Council and the other which was refused.

2 The proposal under this application is to construct a four storey office building and to allow a reduction in carparking. We will refer to this building as the Collegium Avenue building. This proposal is confined to the southern portion of the site, with frontages to Collegium Avenue and Brandon Park Drive.

3 After requiring public notice of the permit application to be given and receiving 29 objections, the Council refused the proposal.

4 Hallmarc Ltd, the permit applicant, is now seeking a review of that decision.

5 In essence, the key issues for our consideration are whether:

i

The development would unreasonably impact upon the Collegium Avenue streetscape;

ii

The design of the proposal provides an acceptable transition to existing development to the east;

iii

Access arrangements are satisfactory.

6 The Council has granted a permit for a two-storey office building on the northern portion of the site which fronts Ferntree Gully Road ("the Ferntree Gully Road building"). Permission was also granted for a access alterations to Ferntree Gully Road. This permit is the subject of an appeal against conditions.

7 The disputed conditions concern:

•

The front setback of the building - Condition 1(a);

•

The number of carparking spaces to be provided on the site - Condition 1(b);

•

The location of a disabled car space - Condition 1(c);

•

The screening of windows to limit overlooking into the adjoining pre-school - Condition 1(e);

•

Deletion of advertising panels from the front façade - Condition 1(l);

•

The type of construction activity that may be carried out on Saturdays - Conditions 8 and 9.

8 The review site has been the subject of two earlier proposals before us - both involving residential developments which were to be used as either dwellings or serviced apartments. They are:

•

Adamco Developments v Monash CC [2004] VCAT 2359 ("the 2004 decision");

•

Hallmarc Developments v Monash CC [2006] VCAT 425 ("the 2006 decision").

9 In the 2004 decision, we upheld the Council's refusal of the development. In the 2006 decision, although we were not prepared to grant a permit for dwellings due to concerns we had with the internal amenity of the development, we subsequently granted a permit for 48 serviced apartments in a 3-storey building above a basement car park. The Council has since approved amended plans for that development; however, construction has not commenced.

10 The parties at the hearing of the application for review relied on both written and oral submissions. A number of photographs, plans and other documents were tendered to the Tribunal and are retained on file. These include some perspective drawings of the Collegium Avenue building tabled at the commencement of the hearing and a plan showing Mr McGurn's suggested modifications to the east elevation involving a greater setback of the staircase and building footprint at the uppermost level from the east boundary. We set out our findings in relation to the key issues in this Application, having regard to these submissions, the material presented at the hearing and the policies, objectives and decision guidelines of the Scheme.

11 The features of the site and surrounds have not changed in any significant way since our 2004 and 2006 decisions.

12 A detailed description of the site and surrounds is set out at paragraphs 7 to 16 of the 2004 decision. However, in general terms, the site comprises an "L" shaped parcel of land with an area of about 4100 square metres. It has frontages to Brandon Park Drive, Collegium Avenue and Ferntree Gully Road. The site is vacant having previously been used as a car park associated with the Brandon Park Shopping Centre which is located directly west. A 3 storey office building exists on the corner of Brandon Park Drive and Ferntree Gully Road; a single storey building containing a preschool exists to the east with single storey 1970's style housing further along the north side of Collegium Avenue beyond and the grounds of the former Brandon Park Secondary College to the south.

13 We note however that the former Brandon Park Secondary College site remains vacant. While the future of this site remains somewhat uncertain, Mr Peake provided us with details of the State Government's intention to allocate $4 million for a new Special Development School at the site[1]. In the absence of any firm plans of this new school, it is premature at this stage for us to make any conclusive findings about the implications of this site's redevelopment in the context of the proposal before us.

14 This building is four storeys above two basement levels of carparking. A total of 5734.53sq.m of office floor space and 197 car spaces are proposed.

15 Individual office tenancies are proposed throughout the four building levels, mainly in the range of 80sq.m to 100sq.m in area. They are arranged around an east-west spine with common access available from both Collegium Avenue and Brandon Park Drive. Separate entries are provided to each office from within the building including access via a central lift core and stairs to the basement. Eight tenancies which front Collegium Avenue also have separate entries to this street.

16 A ramp to the basement is to extend from the southeast corner of the site off Collegium Avenue.

17 The first three storeys of the building have the same setbacks. Proposed setbacks are primarily 7.6m from Brandon Park Drive; 6.7m from Collegium Avenue and a minimum of 7.5m from the east boundary. At its south-east corner, the three storey wall rises to a height of around 12.14m.

18 The fourth storey is recessed by a further 5m from the levels below on three sides - from both road frontages and from the east (except for the stair case structure). The overall height to the uppermost level is approximately 14.7m.

19 The building is to have a flat roof and incorporates the use of extensive glazing to all facades as well as some alucobond cladding. A canopy structure extends along Collegium Avenue and some narrow vertical elements are proposed to both façades including larger columns that mark the common entries.

20 This building is to be 2-storeys fronting Ferntree Gully Road, comprising 645sq.m of office floor space divided into three double storey tenancies. It is to be setback 7.42m from Ferntree Gully Road and would have 18 car parking spaces at the rear, accessed from a new driveway and cross-over off Ferntree Gully Road service road. To facilitate this access, alterations to the existing traffic island in the service road are also proposed.

21 Each tenancy has a separate entry at the front and rear.

22 Each tenancy is to be provided with a signage panel on the front façade measuring 1.8m x 3m, protruding approximately 0.5m above the top edge of the parapet.

23 The land is within a Business 1 zone as are the neighbouring 3 storey office building and the Brandon Park Shopping Centre. The pre-school to the east is within a Public Use Zone (PUZ6) while properties further east on the north side of Collegium Avenue are within a Residential 1 zone. The school site on the south side of Collegium Avenue is also within a Public Use Zone (PUZ2).

24 As we said in the 2006 decision:

[22] We affirm that the planning controls and policies that are relevant to this application have not changed in any significant way since the 2004 appeal although we note that Clause 12 has since been introduced as State policy in the Planning Scheme giving effect to Melbourne 2030.

25 In relation to the various planning permissions relevant to this case, we confirm that a planning permit is now required for:

•

an office use and for buildings and works in the Business 1 zone (Clauses 34.01-1 and 34.01-4);

•

access alterations proposed to the traffic island at Ferntree Gully Road (Clause 52.29);

•

a reduction in the standard carparking requirement for an office use (Clause 52.06);

•

advertising signs proposed on the Ferntree Gully Road building (Clause 52.05-6 - Category 1). We regard the proposed signs as "Sky signs" as defined under Clause 73 of the Planning Scheme which includes a sign "fixed to the wall of a building and which projects above the wall".

26 Amendment C57 involves a review of the Municipal Strategic Statement and updates to local planning policies. Changes relevant to this proposal include the designation of Brandon Park Activity Centre as a Major Activity Centre and updates to various policies including those on Activity Centres (Clause 21.06), Industry and Business Development Character (Clause 22.03) and Outdoor Advertising (Clause 22.08).

27 The amendment was exhibited in the early part of 2006 and was subsequently considered by an independent panel. The panel's findings were considered by the Council in October 2006.

28 Mr Peake submitted that:

It is the view of the Responsible Authority that Amendment C57 does not materially alter the Planning Policies that are relevant to these applications. Additionally, none of the Panel recommendations were directly relevant to the subject site.

Appeal against refusal - Application for Review P1156/2006

30 Before turning to the key issues for consideration we begin by making the following observations.

31 First, in principle, the Council does not oppose the proposed use of the site for offices or the intensity of the development. Indeed, Mr Peake described the site as "ideally located for development with a substantial office building". We also agree that this is an appropriate use and intensity of development in this location at the periphery of a Major Activity Centre. On this point, it is relevant that the land is within a Business 1 zone, the purpose of which includes:

To encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses.

32 The establishment of an office use outside the main retail core of a major activity centre like this is consistent with the purpose of the zone.

33 Second, policies under Clause 12 of the Planning Scheme, which seek to implement the Metropolitan Strategy Melbourne 2030, encourage the consolidation of major retail and commercial activity at Major Activity Centres. Such strategies recognise the potential for synergies to develop between various uses within activity centres as well as opportunities for multi-purpose journeys. We think this proposal would be consistent with the thrust of these policies.

34 Third, in terms of the built form, we note that the Council was not opposed to the overall height of the building per se. Rather, the overall design form, streetscape presentation and interface with non-commercial properties to the east are the core issues in dispute.

35 A further issue concerns the location of the access point adjacent to the pre-school and the volume of traffic that this proposal will generate in Collegium Avenue.

36 On the question of built form we find that the design at the Brandon Park interface is acceptable and responds appropriately to the large commercial forms that make up the shopping centre opposite and the existing office building on the corner of Ferntree Gully Road and Brandon Park Drive. Further, we have no concerns with the north elevation which is to face existing or proposed office developments.

37 In relation to the development of a 4-storey commercial building on this site, we have considered Mrs Yanko's submission that such a building next to the pre-school represents an unacceptable level of development and would be likely to act as a disincentive for future enrolments.

38 We have not been persuaded that this development should be refused because it is to be next to a preschool. Expectations about development of this site and the potential impacts on nearby properties must reasonably take into account the zoning and the policy context that applies. The reality is that the site is located in a zone where intense commercial development is specifically envisaged. Further, the policies within the planning scheme do not simply contemplate intense development; rather it is something that is specifically encouraged by the zoning, policy and to be expected given the size of the site. Expectations that this site will not be developed in a relatively intense way are unrealistic and not in accordance with the very clear direction given by the planning scheme's policies.

39 However, this is not to say that the interface with the preschool or the residential area further east are not relevant and can be ignored. Rather, the site's peripheral location within the centre and proximity to a residential area are matters that need to be taken into account and addressed in the design response.

40 The expectations of both the applicant and the neighbours must take the context into account and an appropriate balance needs to be struck. This accords with the approach supported by the tribunal in Keghlan Pty Ltd v Mornington Peninsula Shire Council[2] .

Will the development unreasonably impact upon the Collegium Avenue streetscape?

41 Mr McGauran, giving urban design evidence for the Council, expressed concerns with the uniform treatment of the building's various facades, highlighting particular concerns with the Collegium Avenue elevation. He contended that the building is "essentially a 3 storey glass box with maximum 15% reflectivity with a setback upper floor glass box. The building does not change in its design, setbacks, articulation or materials, irrespective of frontage or orientation".

42 He expressed the view that greater articulation of the building should be provided. He prepared diagrams showing one way how this could be done without having any significant impact on the level or intensity of development that can be achieved. The suggested design involves fracturing the building into two modules with a more definite break in between, with the south-eastern portion of the building adopting a 2-3 storey scale as a means of transitioning to the finer grain of development to the east.

43 Mr McGurn, a town planner called by Mr Cicero, contended that the building adopts an appropriate level of articulation through the use of individual entrances to office suites leading to the street and the inclusion of some vertical pilaster elements. The extensive use of glazing was also said to result in the building having a light weight appearance. He expressed the view that fragmenting the building into forms reflective of the finer grain development immediately to the east is not necessary as it is likely that this area would undergo significant redevelopment and change given its proximity to a Major Activity Centre, the fairly discrete nature of this pocket relatively removed from the residential hinterland further east and the absence of any particular overlay controls such as heritage controls.

44 It was also Mr McGurn's evidence that the building is unashamedly commercial in appearance - adopting an unmistakeable office typology - a response regarded as appropriate to the building's intended use in a commercial zone at the edge of a Major Activity Centre.

45 We find that the building's presentation to Collegium Avenue is not an acceptable one. This elevation extends for a length of more than 60m and would have a continuous horizontal form, rising in height to more than 12m on the same plane. We do not think that the pilasters or individual entries to the office suites go far enough in providing an adequate level of articulation for a building with these proportions.

46 This site is within a Major Activity Centre; however as we have already said, it is also relevant to acknowledge that it is located at the periphery or edge. The building will be viewed from two different contexts some 70m apart - the commercial context to the west and residential context to the east. While there may be justification for a building of this design in the heart of an activity centre or perhaps in other commercial precincts found along some main roads, or large office parks surrounded by buildings similar in proportions and appearance, the context here demands that the site's two different interfaces be considered. The design should respond to the different building forms and development pattern in the streetscape that are evident to the west and east.

47 We find that the development has responded appropriately to the larger commercial buildings that comprise the shopping centre, its decked car park and the office development to the west and north-west. However, the same design response has been used throughout the building's entire breadth - despite development to the east having a finer grain appearance including the pre-school and dental clinic east again. While we acknowledge that these two immediate eastern neighbours are not residential uses, they involve the re-use of dwellings with a form and appearance similar to the finer grain pattern of residential development further east.

48 We accept that redevelopment of the precinct to the east is likely to occur in the future, most likely in the form of medium density housing on individual properties or on consolidated sites comprising 2 or 3 properties. However, substantial consolidation of lots would need to occur before the fine grain pattern of development that now exists would be lost.

49 The Collegium Avenue façade is unrelenting and severe, lacking in an appropriate degree of articulation and relief. It does not adequately respond to the finer grain pattern of development to the east.

50 While we agree with Mr McGurn's evidence that there is nothing inherently unacceptable about this building having an unmistakable commercial appearance that reflects its intended use as an office, this should not override relevant design considerations including the degree of articulation.

51 On the question of façade articulation to Collegium Avenue, in our 2004 decision we supported the notion of staggered setbacks and a façade presentation offering a degree of relief rather than the creation of a continuous wall on a single plane. We said:

[72] We observed that the design style of dwellings in the surrounding area which could be described as unpretentious and with many displaying the simple forms typical of suburban development from around the 1970's period. Similarly, from our reading of the plans, the architectural style proposed is fairly unpretentious. Although somewhat repetitive, techniques such as recessed balconies, protruding canopies and the varying use of render and brick does serve to delineate entries and assist in creating some visual interest without being overly 'fussy'. However, we are not surprised that Mr Milner recommended that alignment of Building 3 be modified to present a staggered series of setbacks to Collegium Avenue rather than the continuous form originally proposed.

[73] In principle, the articulation of Building 3 facing Collegium Drive through varying setbacks is supported. However, we note that this has come at the expense of reduced street setbacks of 2.3 metres toward the middle of the frontage.

[81] ... We agree with Mr Milner that it was unacceptable to allow Building 3 to run along the same setback for its entire length and some variation to the façade was needed, however, the setback proposed is not acceptable. [Our emphasis added]

52 In the 2006 decision, the façade treatment remained identical to that considered in the 2004 decision, but we found this later design to be acceptable noting that "greater and more uniform street setbacks are now proposed" (Paragraph 67). In saying this, we also acknowledged that our suggestion in the 2004 decision of "creating a higher degree of visual interest and less repetitive treatment of Building 3's south elevation" had not been taken up but that "the architectural presentation of the development was not fatal in the previous case".

53 The important point to be made here is that while we had earlier concerns about the proposed setbacks to Collegium Avenue, the south elevation was designed to offer relief and visual interest to the street - without presenting as a long continuous wall on a single plane. That response informed our view that a suitable degree of articulation is necessary and had been achieved along the Collegium Avenue façade. We see no reason to depart from that principle. We believe that it is a principle that cuts across different building typologies - whether for commercial or residential use. It does not however mean that a residential design response ought to be adopted for a building which is to be put to a commercial use. Rather, a building with a commercial appearance can and should in this instance include an appropriate level of articulation rather than having a façade which has been designed as a three storey wall, 60m in length and some 12m in height on a continuous plane. We agree with Mr McGauran's view that given the context of the land, the façade to Collegium Avenue needs to be "broken" or staggered in some way. Mr McGauran showed one way how this could be done; however, it is not the only way.

54 It is the appearance of the Collegium Avenue façade that we find most problematic and which leads us to conclude that this proposal is unacceptable.

Will the design of the building provide an acceptable transition to existing development to the east?

55 It was Mr McGauran's evidence that the south-east portion of the building ought to adopt a lower form thus providing an improved transition to the lower scale form of the adjoining pre-school building. A greater degree of articulation to the east elevation was also said to be necessary on the east side.

56 Mr McGurn expressed a contrary view, contending that at this interface, the real issue for consideration was that of whether the development achieves a polite response. It is not however a question of amenity - given the non-residential use of this neighbouring site.

57 In forming our view about these matters, we note that the south-east portion of the building will be highly exposed when viewed from the south-east. The three-storey wall to this corner of the building rises to more than 12.1m and is sited 7m-10m in front of the western half of the pre-school building's front facade. This wall will also be 1.7m higher than that which we previously approved. As with the Collegium Avenue façade, this 3-storey wall is located on a single plane and is unrelieved by any meaningful articulation.

58 In light of these circumstances, and given that this aspect of the building will be viewed from the less robust environs of a residential rather than commercial streetscape context, we do not consider the design of the south-east corner to be acceptable. Greater articulation at the south-east corner of the building needs to be provided. Measures to achieve greater articulation to the east wall on this corner should also be adopted such as the use of alternative building materials, recessing the wall and/or the introduction of other appropriate architectural elements.

59 Whilst we accept that Mr McGauaran's proposed alternative design is one way of achieving an acceptable outcome in terms of this portion of the building, we do not accept that the height adjacent to Collegium Avenue should be reduced to 2 storeys given the size of the east setback, the opportunity for landscaping and the direct interface with a non-residential use.

60 Mr Peake submitted that the proposed location of the access ramp, next to the pre-school, in a residential street and opposite a pedestrian crossing would be undesirable. It was argued that this arrangement would potentially give rise to pedestrian and vehicle conflicts with Mr McGauaran also relying on this proposition in terms of the effects upon the permeability and function of the pedestrian realm from a broader urban design and strategic planning perspective. A preferable location for this access point was said to be from Brandon Park Drive.

61 It was also argued that the volume of traffic using Collegium Avenue would be excessive and unacceptable for a residential street. Mr Shrives and Mrs Yanko generally agreed with these submissions.

62 We find that the issue of vehicle access to this site is somewhat vexed. Although we can see the benefits of minimising the spread of commercial traffic into peripheral residential areas by locating the access point in Brandon Park Drive, we agree with Mr O'Brien's evidence that this alternative location is problematic. As we said in the 2004 decision:

[94] We were not persuaded that access off Brandon Park Drive provides a better solution given the location of the access point into the shopping centre car park and the potential conflict with turning lanes.

63 We also think that historically, the existing location of the vehicle access adjacent to the location now proposed (previously serving a carpark) lends some support to the use of Collegium Avenue. We also found this location in Collegium Avenue to be acceptable when granting permission for the 48 serviced apartments.

64 Although Mr Peake pursued the appropriateness of the access point on behalf of the council, we note that it was not a matter raised in the grounds of refusal nor was it a matter that was specifically raised as a concern by the council's traffic engineer. Mr Peake did not offer any expert evidence to support the view that access should not be provided via Collegium Avenue.

65 Further, as noted by Mr Cicero, it is also relevant to consider that the section of Collegium Avenue adjacent to the site is zoned Business 1.

66 It is clear that the proposed development would introduce more traffic into Collegium Avenue compared to the earlier proposal. Whereas the apartment development would have generated around 240 vehicle movements per day (vmpd), Mr O'Brien's evidence indicates that this proposal would generate around 980 vmpd. This represents a four-fold increase in traffic volumes that we previously envisaged for the apartment proposal. It is also significant that existing traffic volumes in Collegium Avenue are, on Council's estimates, about 2500vmpd. Given that only 12 residential properties, the dental clinic and pre-school are in the street, much of this traffic is through traffic. We were told by residents and Mr Peake that the street is used as a short-cut to avoid congestion at the intersection of Ferntree Gully and Springvale Roads particularly by westbound vehicles in the morning peak. This was not contested by Mr O'Brien.

67 We agree that there are difficulties getting vehicle access off Brandon Park Drive. The zoning of this section of Collegium Avenue is Business 1. Collegium Avenue provided vehicle access to this site when it was used as part of the shopping centre's car park. No compelling expert evidence was provided to support the view that access should not be from Collegium Avenue. Taking these factors into account, we are unable to come to the conclusion that vehicle access to this site should not be from Collegium Avenue.

68 However, the addition of 980vmpd would increase traffic volumes in the street to nearly 3500vmpd. We note that the design characteristics of Collegium Avenue are akin to either an "Access Street - Level 2" or "Connector Street Level 1" under Clause 56.06-8 of the Planning Scheme. The former typically carries 2000-3000vmpd and the latter up to 3000vmpd. While we acknowledge that these volumes are indicative for streets of this kind in a residential context, they nonetheless provide some guidance as to what might be regarded as reasonable. In our view, the resultant traffic volumes in Collegium Avenue go beyond these standards. Accordingly, we agree with Mr Shrives' suggestion of limiting the use of Collegium Avenue east of the site by restricting vehicle movements to and from the site. Were we minded to grant a permit we would therefore only allow left turn movements in and right turn movements out of the site. This would direct traffic back toward the commercial centre rather than through the residential area.

69 In terms of landscaping, we note that some planting can occur in-situ and some will need to be installed within elevated planting areas above the basement lid defined by retaining walls of varying heights. We generally accept Mr Vernon's evidence that sufficient space, horizontally and vertically, will be available around the site for the provision of suitable landscaping.

70 While Mr Peake did not pursue Council's initial concerns with the number of car parking spaces proposed, he submitted that 20 visitor car spaces should be set aside for that purpose. We agree with this submission and would, if we were to grant a permit, require the preparation of a car park management plan detailing visitor parking arrangements, including how these spaces are to be accessed in light of proposed security arrangements (e.g. intercom use) and whether spaces are to be provided in a common pool or allocated to individual office suites on a pro-rata basis. There are advantages and disadvantages with both approaches; however, we consider that the allocation of visitor spaces to specific office tenancies would allow facilitate easier and more effective management.

Appeal against conditions - Application for Review P1347/2006

Increase in the front setback to Ferntree Gully Road to 7.6 metres.

72 The proposed front setback of this building is 7.422m Mr Peake submitted that the adjoining office building to the west has a 7.6m setback and that the proposed building should be setback at least as far as this commercial neighbour, also taking into account the substantial setback to the rear of the pre-school building on the west side.

73 The condition sought by the Council would require an increased setback of 0.178m. We can only regard the proposed increase sought as trivial and of no meaningful consequence. Such an increase would not be perceptible given the 7.422m setback proposed and the 2-storey form of the proposed building. We otherwise consider that the proposed setback would be acceptable in the context of the adjoining office building

74 The proposed setback is reasonable in terms of the pre-school setback, given the main road location and the fact that this neighbouring building has its address to Collegium Avenue rather than Ferntree Gully Road.

75 We will therefore require deletion of this condition.

The number of carparking spaces to be provided on the site - Condition 1(b)

Reduction in the floor area to ensure that car parking is provided at the minimum rate of 3.5 car parking spaces to each 100 square metres of net office floor area.

77 For an office development with a floor area of 645sq.m, the standard car parking requirement under Clause 52.06 of the Planning Scheme is 3.5 spaces per 100sq.m of net floor area, which equates to a requirement for 23 car parking spaces. A total of 18 spaces are proposed, representing a shortfall of 5 car parking spaces.

78 Mr Peake submitted that this shortfall should not be allowed given that Brandon Park is essentially a car based centre with limited public transport options. It was also contended that on-street parking nearby could not be relied upon, particularly on this side of Ferntree Gully Road to the east of the site within the service road where resident parking only is allowed. Parking restrictions elsewhere in surrounding streets were also said to provide limited options. It was also argued that the use of car parking spaces at the shopping centre should not be taken into account given that these spaces are on private land.

79 In forming our view about this issue we firstly observe that the proposed use of the land for an office is an appropriate one - a position not contested by the Council. This use enjoys strong policy support at Major Activity Centres supported by strategies such as those at Clause 12.01-2 which, amongst other things, seek to develop:

... Principal and Major Activity Centres to accommodate ongoing investment and change in retail, office, service and residential markets.

•

Ensuring Principal and Major Activity Centres:

s Have a mix of activities that generate high number of trips including business, retail, services and entertainment.

80 While this site is highly suited to an office use we, the proposal itself is relatively modest in floor area terms. We are therefore reluctant to require a further reduction in the floor area of the building to accommodate additional parking spaces.

81 However, we are of the view that at least three visitor car spaces should be provided on the site - that is one space allocated to each of the three tenancies, leaving 5 spaces for use by tenants of each office suite. This equates to a total of 18 car spaces.

82 We note at the present time that one of the proposed 18 spaces is set aside for disabled use effectively leaving just 17 spaces. This car space is better positioned in the front setback area - a location we regard as providing superior access to the building entries. We also see the opportunity to provide an additional visitor car space for shared use within this location, taking the total parking provision to 20 spaces. This results in a shortfall of 3 spaces which we regard as relatively modest and reasonable.

83 In terms of the use of the front setback area for two visitor spaces, we acknowledge that this is not a response that we might often find acceptable from a visual amenity and landscaping perspective. In this circumstance however, there will remain a large landscaped area in front of the site due to the presence of the wide nature strip at the termination of the service road pavement. In conjunction with the remaining area for landscaping at the front within the site boundaries, we find the placement of these car spaces here to be acceptable.

84 We will therefore require modifications to Condition 1(b) reflecting our findings. Modifications to the permit preamble will also be necessary to include permission for a reduction in the standard car parking requirement under Clause 52.06 of the Monash Planning Scheme. The consequential deletion of Condition 14 is also necessary.

The location of a disabled car space - Condition 1(c)

Relocation of the disabled car parking space closer to the entrance of the building with a minimum width of 3.2 metres.

86 In light of our findings in relation to Condition 1(b), we will require deletion of Condition 1(c).

The screening of windows to limit overlooking into the adjoining pre-school - Condition 1(e)

87 At the hearing, Mr Cicero agreed that his client would no longer contest this condition and would propose the use of opaque glazing.

88 We agree that the condition should be retained and will require the use of opaque glass as opposed to external screens in this instance to avoid the creation of elements that are 'tacked-on' to the building's exterior.

89 We will therefore require modification of Condition 1(e).

Deletion of advertising panels from the front façade - Condition 1(l)

90 Mr Peake submitted that these signs "are an inappropriate and discordant addition to a simple fascia design that will contribute to inappropriate visual clutter along Ferntree Gully Road". Particular concerns were raised about the projecting form of the panels above the height of the parapet.

91 It was Mr McGurn's evidence that it is preferable to "integrate future signage with the design of the building and is far better ... to designate areas now rather than in an "ad hoc" way later".

92 We agree with Mr McGurn's proposition that it is desirable to designate an area for signage which is integrated with the building's design. We also agree however with Mr Peake's concern that the sign panels, which protrude above the parapet line do not provide for an appropriate degree of integration. In our view, these signs should framed by the building itself.

93 One option put to us at the hearing by Mr Cicero involves raising the parapet height by 0.5m, thereby maintaining the proposed dimensions of the sign. An alternative is to reduce the height of the sign panels by at least 0.5m so that they do not protrude above the parapet line. We would find either approach acceptable.

94 We will therefore require Condition 1(i) to be modified so as to reflect either scenario.

The type of construction activity that may be carried out on Saturdays - Conditions 8 and 9

95 The relevant part of Condition 8 in dispute concerns the limitation on construction activity on Saturday afternoon. Condition 8 is as follows:

[8] The construction works associated with the permitted use/development and/or subdivision must only be carried out during the following hours:

•

...

•

Saturday - 9am to 1pm;

•

Saturday - 1pm to 5pm (only activities associated with the erection of buildings. This does not include excavation or the use of heavy machinery) unless otherwise approved in writing by the Responsible Authority.

96 This limitation on construction activity on Saturday afternoons is repeated in Condition 9 which requires the preparation of a construction management plan including construction hours.

97 Mr Peake submitted that this restriction on construction activity is appropriate having regard to the site's proximity to residential properties nearby in Ferntree Gully Road and Collegium Avenue.

98 Our first observation is that in granting a permit for the serviced apartments in the 2006 decision, we did not impose any restrictions on the type of construction activity that could be carried out on Saturday afternoons.

99 Secondly, we are mindful of the concerns raised by Mrs Yanko in relation to the disruption likely to be caused to children attending the neighbouring pre-school during the construction phase. We note that the pre-school does not operate on Saturdays.

100 As a general principle it is desirable to allow construction work to proceed in a reasonable but expeditious manner rather than prolonging them unnecessarily - taking into account of course amenity considerations of neighbours in terms of hours and days of operation. We are of the view that early mornings, evening periods and Sundays are the times when most residents prize their peace and quiet.

101 We do not think however that the type of construction activity sought to be restricted by the Council on Saturday afternoons would unduly jeopardise the amenity of others.

102 Accordingly, Conditions 8 and 9 will be modified to remove the restriction on the types of construction activity permitted on Saturday afternoons.

103 For the reasons we have set out, the decision of the Responsible Authority in relation to Application for Review P1156/2006 is affirmed and no permit is to issue.

104 The decision of the Responsible Authority in relation to Application for Review P1347/2006 is varied and we will direct the grant of a permit with modified conditions.

[1] Appropriation (2006/2007) Bill - Second Reading Speech 1 June 2006 Assembly - Parliament of Victoria. Vic Hansard Page 1630.

[2] [2000] VCAT 2538