The decision of the Responsible Authority is set aside. In permit application PPO9/00075 a permit is granted and directed to be issued for the land at 1295 Toorak Road, Camberwell. The permit allows for the construction of a three-storey building above a basement for dwellings, and alteration of access to a road in a Road Zone - Category 1 in accordance with the endorsed plans and subject to the conditions set out in Appendix A.

The proposal described in the amended plans, is to construct a three storey apartment building for 22 apartments over a basement for car parking. for 28 vehicles.

Application under section 79 of the Planning and Environment Act 1987 for review of the failure to grant a permit within the prescribed time.

Under Residential 1 Zone, a permit is required to construct more than one dwelling on a lot. A development must meet the requirements of Clauses 55 (ResCode).

Under the Heritage Overlay, a permit is required to construct a building or construct or carry out works.

Under Clause xxx a permit is required for the alteration of access to a road in a Road Zone - Category 1

Clause 11.03 - Principles of Land Use and Development Planning

Clause 18.01 - Declared Highways, Railways and tramways

Clause 18.02 - Car parking and public transport access to development

Clause 21.03 - The Key Influence Areas for Boroondara

Clause 21.05 - Heritage, Landscapes and Urban Character

The subject land is the composition of two parcels of land,1295 Toorak Road and

2/1297 Toorak Road. The land is a "L" shaped lot with a frontage of 20.71 metres and an area of 1597 square metres.

1. This is an application to review the failure of the responsible authority to grant a permit within the prescribed time in respect of a permit application for the construction of a three-storey apartment building above a basement for 22 dwellings at 1295 Toorak Road, Camberwell. The responsible authority ultimately decided that had it not been for the application for review it would have refused permission for the following reasons:
   1. The scale, prominence and form of proposed development will have a dominating impact on the streetscape.
   2. The proposed development fails to respect the existing scale, massing, form and siting of 'significant' heritage buildings on the adjoining properties.
   3. Excessive height and building bulk with limited scope for landscaping detracts from the visual amenity of adjoining properties.
   4. The extent of basement and use of the front setback area for outdoor living compromises opportunities for landscaping.
   5. Vehicle access from Through Road via the existing 3.0-metre wide right-of-way and ramp to basement is inadequate for 22 additional dwellings and does not provide safe and convenient vehicle access.
   6. Noise caused by increased traffic along the right-of-way will have a detrimental impact on neighbours at 1 Through Road.
   7. The provision of on-site parking for visitors is inadequate.
   8. The potential for overlooking from west-facing balconies and terraces to the adjacent secluded private open spaces at No 1293 Toorak Road will cause a loss of privacy.
   9. Pedestrian access via a narrow walkway and long corridors offers a poor sense of address for residents of the 22 dwellings.
   10. The proposed fencing to a height of 2.4 metres above the footpath is excessive and will have a detrimental impact on the streetscape.
2. At the commencement of the hearing Mr Canavan applied to amend the permit application by the substitution of amending plans as foreshadowed by notice given in accordance with the Tribunal's practice requirements. No person opposed the amendment of the permit application in this way, and the Tribunal ordered the amendment of the permit application in accordance with Mr Canavan's request.
3. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality.

1. The subject land is located on the north side of Toorak Road approximately 40 metres to the east of Through Road, in Camberwell. The land is vacant and falls approximately 3.5 metres from the south east to north west. A 3.05 metre wide laneway abuts the northern boundary of the site. The laneway connects to Through Road to the west.

1. Adjoining Properties
   • East - a two storey "moderne" dwellings at 1/1297 Toorak Road affected by Heritage Overlay (HO408), and single dwellings at

1299 Toorak Road and 2 Aisbett Avenue; * West - a large single storey federation dwelling1293 Toorak Road affected by Heritage Overlay (HO407) * North - single storey dwellings "villa units" at 1 Through Road. 2. The land is located on a main road within an attractive suburban residential area proximate to a rich variety of community facilities, ie: * The Camberwell Junction Principal Activity Centres is located to the north west; * Neighbourhood activity centres including Hartwell and Burwood Village are located to the west and east of the site along Toorak Road; * The Burwood Tramway line operates along Toorak Road; * Bus services also operate along Toorak Road * Toorak Road is a main road within a Road Zone Category 1; * Clearways operate along both sides of Toorak Road in the morning and afternoon peak periods.

1. The proposal described in the amended plans, is to construct a three storey apartment building for 22 apartments over a basement for car parking, ie:
   • The building has a contemporary architectural character incorporating a flat roof with pronounced eaves and utilising render, stone and painted finishes.
   • The basement provides 28 car parking spaces, including three visitor cars spaces. Vehicle accessed from Toorak Road[1]. Lift and stair access is provided to the levels above.
   • At ground floor level there are 10 dwellings (2 x 1 bedroom dwellings, 5 x 1 bedroom plus study dwellings and 3 x 2 bedroom dwellings). Private open space is provided around the perimeter of the building.
   • At first floor there are 9 dwellings (4 x 1 bedroom plus study dwellings and

5 x 2 bedroom dwellings). Private open space is provided using balconies. * At second floor there are 3, three bedroom, dwellings. Private open space is provided using balconies. * The proposed building is set back 9.0 metres from Toorak Road. The maximum overall building height is approximately 10.55 metres above natural ground level, when measured from the front of the property (excluding plant equipment and lift overrun). The height increases to approximately 10.93 metres, above natural ground level, at the rear of the site.

1. As is the case for many similar residential developments in metropolitan Melbourne the principal issues in this application are the policy position in relation to a preferred development outcome for the land and the implications of that development on neighbourhood character. Other issues include heritage considerations, landscape opportunity, development impacts at the interfaces, and traffic and car parking.

1. The subject land is a large, largely unencumbered site on a main road containing an important tram route in a residential area richly endowed with a varied range of community facilities support urban life. It is to be expected that such a site should support a more intensive form of development.
2. Mr Canavan and Ms Porter referred me to clause 12 Metropolitan Development and the State Government's more recent policy document Melbourne at Five Million, December 2008. In particular I was referred to the following policy statements:

• Facilitate sustainable development that takes full advantage of existing settlement patterns, and investment in transport and communication, water and sewerage and social facilities

(cl 12.01-1)

• Locate a substantial proportion of new housing in or close to activity centres and other strategic redevelopment sites that offer good access to services and transport (cl 12.01-2)
• Encourage consolidation of existing urban areas, and higher density and mixed use development near public transport routes (cl 14.01-2)
• Encourage opportunities for increased residential densities to help consolidate urban areas (cl 16.01-1)

the focus will be on locating more intense housing development in and around activity centres, along tram routes and the orbital bus routes on the Principal Public Transport Network, in areas close to train stations and on large redevelopment sites. (Page 17)

More intensive development will occur along major public transport services in the inner Melbourne area, like the tram network. These will provide sigi4flcant opportunities for more affordable housing on 'market friendly' development sites. (Page 17)

1. In my view the State Planning Policy Framework supports the contention that the subject land is an opportunity site, on which planning policy in relation to urban consolidation, housing diversity and affordability should be achieved. The Local Planning Policy Framework is relatively silent in relation to the preferred location for more intensive forms of residential development. At clause 21.07 the policy framework states that it is a strategy to:

Increase residential development opportunities (including higher density development) in and around commercial centres and other strategic locations.

1. The SPPF strategically identifies large sites on the public transport network, such as the subject land, as a preferred location for more intensive forms of residential development, in my opinion such sites should also be regarded as being within a strategic location for the purposes of the Local Planning Policy Framework.
2. The subject land is clearly a site which should be more intensively developed, and the scale of development optimised to the extent that it is practicable having regard to other planning considerations.

1. Notwithstanding the suitability of the site for more intensive development, a question to be resolved is whether or not the particular development proposed is appropriately respectful of neighbourhood character having regard to the provisions of both the state and local planning policy frameworks[2].
2. The proposal is for a three storey apartment building albeit with a recessed third level, employing a contemporary architectural vernacular. A three storey apartment building is clearly a modestly intensive development form in this suburban context, is it an acceptable outcome.
3. It is said that there are no modern apartment buildings in this part of Toorak Road. This is correct, however, unusually for this area of suburban Camberwell, there are apartment buildings in this section of Toorak Road.
4. Toorak Road between Hartwell and Burwood Village has a diverse residential character. The architecture is varied, there are a mixture of large dwellings and dwellings more typical of the broader neighbourhood interspersed with a small number of apartment buildings dating from the last half of the 20th century.
5. Light sites on main roads adjoining the public transport network are sites on which you would expect a greater level of change than might otherwise be considered respectful of neighbourhood character elsewhere within the neighbourhood character precinct. However, it is my observation that the existing Toorak Road character is such that an apartment building could recently be regarded as an appropriate form of infill development even if there were no such expectations for change.

1. Notwithstanding the above conclusion, there is a particular character issue in this application arising from the fact that on Toorak Road both adjoining sites are affected by individual heritage overlays. That part of the subject land which is the rear of 1297 Toorak Road is also effected by the heritage overlay applying to the dwelling at 1297 Toorak Road, but this part of the land contains no heritage fabric.
2. The frontage setback of the proposed building described on the amended plans is 9 metres, this frontage setback complies with the ResCode requirement. However, both of the adjoining buildings have larger frontage setbacks, in particular the federation dwellings at 1293 Toorak Road which has a setback more than 13 metres. It is argued that the scale of the proposed building, its architecture, and its frontage setback, detracts from the heritage values of these adjoining heritage places. The fact that these parameters of the design are inconsistent with the heritage guidelines which would apply in this context, if the adjoining sites and the subject land were within a heritage overlay area is argued to be evidence of this adverse outcome.
3. Both of the adjoining heritage places sit within the diverse streetscape of Toorak Road. The relationship that will exist between adjoining buildings as a consequence of the construction of the proposed building will not be at all unusual in this urban context. In particular, in relation to 1293 Toorak Road, the federation dwelling, the differences in scale and frontage setback are mediated by the relatively large side setbacks between buildings. I agree with Mr Raworth's conclusion that having regard to the limited heritage considerations are relevant to this application there are no unreasonable impacts on heritage significance of the adjoining heritage places.

1. The proposal is for an apartment building in the strategic context described above. As is normal for such development landscaping opportunities are largely limited to the perimeter of the site. In this particular case landscaping along the western boundary is largely contained within a substantial planter constructed above the basement which comes within 900 millimetres of the west boundary on the subject land.
2. The reliance on both perimeter planting, and the use of planters, was argued to be an inadequate landscape response in the neighbourhood context. I do not agree with these submissions, in my opinion the landscaping proposal is well resolved having regard to the intensive form of development proposed, which is in itself responsive to the strategic context of the subject land.

1. To the east and north the proposed setbacks, and the excavation of the building into the land to accommodate its topography, results in an entirely acceptable interface between the proposed building and adjoining residential buildings. The more difficult issue is the interface between the subject building and 1293 Toorak Road which is down slope of the subject land.
2. The setbacks between the subject building and the dwelling at 1291 Toorak Road are relatively generous and the critical aspect of this interface is the relationship of the proposed building to the rear private open space of the dwelling at 1291 Toorak Road. In this location the proposed basement rises out above natural ground level so that the two and three storey components of the building are further elevated above this rear garden space. The applicants propose to manage this interface utilising setbacks substantially in excess of the ResCode requirement and a tiered arrangement of built and landscape elements, as described in the cross section set out below.

1. It is argued that this approach is inconsistent with the approach adopted by the Tribunal at 1291 Toorak Road[3] on the corner of Through Road where the rear dwelling was required to be a single storey dwelling. The development at 1291 was a conventional 3 townhouse development on a corner lot. It is a development which would be appropriate on any corner lot within this broader suburban environment. The land is substantially smaller than the subject land and the Tribunal's approach in that case was a quite conventional solution to streetscape and interface issues which arise in such circumstances. I do not think that this solution is appropriately translatable to the subject land. Considering a similar interface issue between a proposed apartment building and the rear private open space of an adjoining dwelling on Toorak Road in Kooyong[4] I made the following observations.

1. The most significant off site amenity effect is the affect of the proposed building on the rear garden of the more modern dwelling at 725 Toorak Road. The subject land is somewhat higher than 725 Toorak Road and on the basis of my inspection the proposed building will be very prominent when viewed from the swimming pool and the pool surrounds to the rear of this dwelling. The dwelling itself however, and its directly connected open spaces, are oriented to the north and east and as a consequence users of these spaces will be much less significantly affected by the mass of the proposed building.
2. The planning policy context is one in which a substantial change in the intensity and scale of building form is to be anticipated. This is a circumstance in which the Tribunal's more conventional approaches to backyard amenity do not apply. In Toorak Road, in the current planning context, the development of new larger buildings on adjoining sites is a reasonable expectation. Nevertheless, the proposed building, as it abuts this rear garden space, should be required to comply with the setback standards of ResCode Standard B17.
3. The applicants agree that privacy measures to reasonably limit overlooking into the rear yard of 725 Toorak Road are appropriate, I agree with this opinion and would support the use of "in glass" slats to limit downwards views while not unreasonably compromising the amenity of future residents.
4. In this case the solution proposed by the applicants will result in a substantially better outcome than that which I considered acceptable in this comparable case.
5. In relation to privacy between future residents and habitable rooms and private open spaces on adjoining sites, privacy screening is proposed and Mr Tricky in his evidence recommended some additional privacy measures which the applicant accepts. Broadly speaking I think that this is an adequate response, however in relation to the privacy of the rear private open space of 1293 Toorak Road, while I accepted that the planter box sustained proposed landscaping will ultimately be adequate, I am of the opinion that in the short term a 400 millimetre high screen is required above the western edge of the planter box to ensure adequate levels of privacy in this location.

1. In relation to traffic, existing traffic conditions in Toorak Road are cited as a basis for the rejection of the current proposal. It is true that the future residence of the proposed building will suffer the inconveniences endured by existing residents as a consequence of traffic conditions on Toorak Road. I do not agree that this level of convenience is an appropriate basis for suggesting that the more intensive forms of development encouraged by the planning scheme are inherently inappropriate. It is clear that traffic generation associated with the moving of people to and from the subject land will have no perceptible impact on existing traffic conditions.
2. In relation to car parking, the proposal does not comply with the car parking rates set out in the local planning policy but in relation to resident car parking complying with the ResCode requirement and in relation to visitor car parking provide one fewer visitor car space than would be required by ResCode. I do not think it is consistent with sustainable planning or the planning policy framework taken as a whole, to require car parking rates for medium density housing on strategic sites greater than that required by the ResCode standard. In relation to the shortfall of one visitor car space, I cannot accept that there will be no suitable on street car parking available for this one car space deficiency on weeknights or weekends when this deficiency is likely to be evident.
3. Mr Chase produced diagrams to demonstrate the impact of cars parked in Toorak Road on the site distances from Aisbett Avenue, I accept that car park vehicles have this effect, it is not however a traffic condition which is unusual in a metropolitan context. There is no traffic or car parking basis for rejecting the current proposal.

1. It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be set aside and a permit granted.
2. In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.

1. Before the development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and three (3) copies provided, generally in accordance with the plans by CBG Architects (Drawings TP 01 - TP 09, all Revision B) but modified to show:
   • (a) A 400 millimetre high privacy screen above the western edge of the planter box adjacent to the western boundary of the land;
   • (b) Other modifications to privacy measures, generally in accordance with the recommendations of Mr Lester Trickey in section 4.3.1 of his statement of evidence prepared for VCAT application P1613/2009;
   • (c) Basement height clearances to be designed in accordance with Australian Standard AS/NZS 2890.1:2004;
   • (d) The provision of a southern elevation of that part of the building substantially located on 2/1297 Toorak Road;
   • (e) The provision of a schedule of materials and finishes (including colour samples) and the provision of a sample board showing the proposed palette of materials, finishes and colours.

1. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason (unless the Boroondara Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.

1. A two-way sealed vehicular crossover must be constructed at least 6.4 metres wide, as measured at the property boundary, to the satisfaction of the Responsible Authority.
2. A two-way driveway (including a central island containing an intercom/card reader system) must be constructed within the site and be at least 6.6 metres wide for the first 6.0 metres with a maximum gradient of 1:20, to the satisfaction of the Responsible Authority.
3. The edges of the vehicular crossover must be angled at 60 degrees to the road reserve boundary, to improve entry and exit conditions, to the satisfaction of the Responsible Authority.
4. Any redundant crossovers to Toorak Road must be removed and the footpath, nature strip and kerbing reinstated to the satisfaction of the Responsible Authority.
5. The developer must pay the full cost of all road works, drainage, service relocation, protection and any other associated costs.

1. A landscape plan to the satisfaction of the responsible authority must be submitted to the Responsible Authority prior to the endorsement of plans required by Condition 1. When approved, the plan will be endorsed and will form part of this permit. The plan must be generally in accordance with the Landscape Concept Plan (TP01A) by CDA Design Group P/L. The plan must be drawn to scale with dimension and three copies must be provided including:
   • (a) A survey (including botanical names) of all existing vegetation to be retained and/or removed;
   • (b) Details of surface finishes of pathways and driveways;
   • (c) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant;
   • (d) Landscaping and planting within all open areas of the site;
   • (e) The provision of a canopy trees (minimum two metres tall when planted) appropriately located to the satisfaction of the Responsible Authority.

1. Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.

1. All landscaping works shown on the endorsed landscape plans must be maintained and any dead, diseased or damaged plant replaced, all to the satisfaction of the Responsible Authority.

1. Prior to the endorsement of any plans pursuant to Condition 1, a Waste Management Plan must be submitted to the Responsible Authority for approval. The plan must contain measures for the management of a regular garbage and recycling collection service to the permitted dwellings to the satisfaction of the Responsible Authority. Once approved, such plan must be implemented to the satisfaction of the Responsible Authority.

1. Prior to the commencement of any site works whatsoever, the owner must submit a Construction Management Plan to the Responsible Authority for approval. No works are permitted to occur until the Plan has been approved in writing by the Responsible Authority. Once approved, the Construction Management Plan will be endorsed to form part of this permit and must be implemented to the satisfaction of the Responsible Authority. The Plan must be to the satisfaction of the Responsible Authority and must provide details of the following:
   • (a) Hours for construction activity in accordance with any other condition of this permit;
   • (b) Measures to control noise, dust, water and sediment laden runoff;
   • (c) The location and design of a vehicle washdown bay for construction vehicles on the site;
   • (d) The location of parking areas for construction and sub-contractors' vehicles on the site where practicable, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises and traffic flows;
   • (e) Measures to avoid interruptions to traffic movements along the laneway tot eh north of the land;
   • (f) Measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan;
   • (g) Contact details of key construction site staff;
   • (h) The provision and utilisation of suitable vehicle washing facilities on the site for the cleaning of vehicles so as to prevent any grease, oil, mud or other material to fall or run off a vehicle leaving the site, to the satisfaction of the Responsible Authority;
   • (i) The location of any site sheds and the like; and
   • (j) Any other relevant matters, including the requirements of VicRoads and Yarra Trams (or their successor).

1. All works including earthworks, demolition and construction activity associated with the approved development, including deliveries to the site, are to be limited to the following hours, unless with the prior written consent of the Responsible Authority:
   • (a) Monday to Friday: 7:00am to 7:00pm
   • (b) Saturday: 9:00am to 5:00pm
   • (c) Sunday & Public Holidays: No construction

1. Before any building is occupied, area/s set aside for car parking, access lanes and driveways shown on the endorsed plans must be:
   • (a) Constructed;
   • (b) Formed to such levels and properly drained so that they can be used in accordance with the endorsed plans;
   • (c) Surfaced with an all weather seal coat;
   • (d) Line marked to indicate each car space;
   • (e) Clearly marked to show the direction of traffic along the access lanes and driveways;

1. Before the use starts or any building is occupied, areas set aside for car parking, access lanes and driveways shown on the endorsed plans must be constructed and formed to such levels and properly drained so that they can be used in accordance with the endorsed plans, to the satisfaction of the Responsible Authority.

1. External driveways and parking areas must be constructed with dark coloured concrete or bitumen, coloured patterned concrete, interlocking paving blocks or brick paving to the satisfaction of the Responsible Authority.

1. The land must be drained to the satisfaction of the Responsible Authority and all drainage works must be completed prior to the occupation of the building.

1. Stormwater drains must be connected to a legal point of discharge approved by the Responsible Authority. Drainage connections within a road reserve must be to Council's standards. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.

1. This Permit will expire if:
   • (a) The development does not start within two (2) years of the issue date of this Permit; or
   • (b) The development is not completed within four (4) years of the issue date of this Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.

[1] Storage areas, rubbish bin refuse area and bicycle parking are also provided within the basement.

[2] The land falls within Residential Character Area 134.

[3] Retrobe Pty Ltd v Boroondara CC [2005] VCAT 262

[4] C3 Developments v Stonnington CC [2009] VCAT 658