1. Council decided to refuse the application on eight grounds concerning:
   • Excessive building height in terms of the existing and proposed height character for this area.
   • Front setbacks at ground and upper levels are inadequate which will, when combined with excessive height, result in an unduly prominent building within this context, to the detriment of neighbourhood character.
   • The proposed side and rear setbacks are insufficient resulting in excessive site coverage and inadequate space around the building with resultant unreasonable impacts to existing residents.
   • Inadequate landscaping is proposed and the proposed landscaping is of insufficient size to screen the building.
   • Being an overdevelopment and of a density not foreseen for this area.
   • The proposed finishes fail to adequately respond to neighbourhood character and, when combined with excessive height and inadequate setbacks, will overly emphasise the building to the detriment of the neighbourhood character and residential amenity.
   • The proposal will unreasonably overshadow the private and secluded open space located at 717 Malvern Road.
   • The proposal will unreasonably impact upon the privacy of abutting properties.
2. Although acknowledging that the changes depicted on the substituted plans represent an improvement, Council maintains its opposition to the proposal. Mr Gale submits that:

Council maintains that the proposal is seeking to impose too much on this site. Whilst Council supports a level of intensification on the land, it is submitted that the proposal is not a reasonable and acceptable proposition both in terms of neighbourhood character, off-site amenity impacts, and providing a suitable landscaped setting.

1. Nearby residents also oppose the development and were represented at the hearing to present submissions and evidence setting out why it should be refused. In large measure the submissions by Messrs Chiappi and O'Farrell, and the evidence of Mr Iles, reflect the concerns expressed by Council. However Mr O'Farrell's client living at 646 Orrong Road is particularly concerned about the additional traffic movements along the laneway abutting her rear boundary, and the lack of on-site visitor parking.
2. We conducted an accompanied inspection on the last morning of the conclusion of the hearing. It gave us an opportunity to understand the detailed site context and the physical relationship of the site to adjoining and nearby properties and its position within the neighbourhood.
3. Based on our response to the material accompanying the application and presented at the hearing, we consider that the key questions to be decided are as follows:
   1. What are the key directions set by State and local planning policy?
   2. Is the design an acceptable response to site context on the basis of:
      • How well has the building responded to the built form character of the neighbourhood?
      • Are height and boundary setbacks appropriate?
      • Are there amenity benefits to Orrong Road residents from the retention of the brick wall along the western boundary?
      • Does the landscaping repair and reinforce as required by local policy?
      • Are there any unreasonable internal or external amenity effects?
      • Can the rear laneway cope with additional traffic and should provision of visitor parking be waived in its entirety?
4. We address each of these questions in the following sections.
5. We also note that the application as a four and five storey building is not required to be assessed against Clause 55 (ResCode) but is required instead to be assessed using the Guidelines for Higher Density Residential Development. A detailed assessment against the Guidelines was undertaken by Mr Bromhead and was attached as Appendix B to his witness statement. Mr Iles also made reference to the Guidelines although he did not undertake a similar detailed analysis. Although ResCode does not apply, the permit applicant and other parties did make reference to a number of standards including front setback (B6), height (B7), site coverage (B8), side and rear setbacks (B17), overshadowing (B21) and overlooking (B22). Our comment deals with these aspects of the development, although not always the specific ResCode standard as they do not apply.

What are the key directions set by State and local planning policy?

1. In State policy at Clause 11.04-2 there is a clear intention that more intensive development be directed to land in and around activity centres and along and near the Principal Public Transport Network (PPTN). It is also policy to encourage higher density housing in and around Neighbourhood Activity Centres that is designed to fit the context and enhance the character of the area while providing a variety of housing options for different types of households.
2. State policy for built environment and heritage at Clause 15 states that, amongst other matters, planning should ensure all new land use and development appropriately responds to its landscape, valued built form and cultural context, and protect places and sites with significant heritage, architectural, aesthetic, scientific and cultural value. It also seeks to create quality built environments that support the social, cultural, economic and environmental wellbeing of our communities, cities and towns.
3. Clauses 16 and 18 reinforce the need to locate new housing in or close to activity centres and close to or on the PPTN. Clause 16.01-3 is policy for strategic redevelopment sites and lists six criteria by which such sites can be identified. As relevant to this application these include:
   • In or beside Neighbourhood Activity Centres that are served by public transport.
   • On or abutting tram, train, light rail and bus routes that are part of the Principal Public Transport Network and close to employment corridors, Central Activities Districts, Principal or Major Activity Centres.
   • Able to provide 10 or more dwelling units, close to activity centres and well served by public transport.
4. Clause 16.01 also refers to housing diversity and housing affordability. Clause 18.01-2 includes a strategy to encourage higher land use densities and mixed use developments near railway stations, major bus terminals, transport interchanges, tramways and principal bus routes.
5. The Local Planning Policy Framework has been subject to a significant restructuring at the end of 2013. However, in many respects the fundamental policy directions and land use framework plan contained in the now superseded provisions are quite similar to those now in the planning scheme.
6. The now superseded provisions recognised Stonnington's one and two storey built form character but supported more intensive development (higher than two storeys) on land shown on the Strategic Framework Plan that had a frontage to a Road Zone Category 1, Principal Activity Centres and identified gateway localities and large sites.
7. The new provisions seek to focus higher density housing in and beside activity centres, and in mixed use areas and abutting the Principal Public Transport Network (i.e. tram and priority bus routes and railway stations).
8. What has changed is that the new housing policy at Clause 21.05 identifies three categories or areas for housing across the municipality - substantial change areas, incremental change areas and minimal change areas. The review site is in a substantial change area. The strategies for substantial change areas seek to:

Direct medium density housing and higher density housing to sites in the following locations as shown on the Strategic Framework Plan which forms part of Clause 21.03; being:

• land with immediate abuttal to a main road which is a tram or priority bus route;
• land beside or opposite a railway station which is also part of or in close proximity to an activity centre;
• land shown on the Strategic Framework Plan as a Principal, Major or Large Neighbourhood Activity Centre, and in accordance with any approved Structure Plan or Urban Design Framework;
• land in, beside or opposite a Small Neighbourhood Activity Centre, as shown on the Strategic Framework Plan (not including land opposite a rear laneway to the Small Neighbourhood Activity Centre);
• in a Mixed Use Zone as a free standing development or in the upper levels of a mixed use development,

• the location and scale of development meets the requirements of any adopted Structure Plan and Urban Design Framework;
• adequate service and infrastructure capacity will be available prior to or at least at the same time as new development;
• access arrangements onto main roads minimise conflicts of movements with vehicle traffic and public transport and do not introduce delays;
• the lot is not part of a residential heritage precinct in the Heritage Overlay;
• in the case of an individually listed heritage place or land in a non-residential heritage precinct in the Heritage Overlay, the lot is capable of supporting higher density development in accordance with Clause 22.04 (Heritage Policy).

1. The policy then goes on to say that the strategies in relation to locations for residential development (i.e. substantial, incremental and minimal change areas) will be implemented through the planning scheme by the preparation of Higher Density Policy and Guidelines. No such policy or guidelines have been prepared.
2. Policy for built environment and heritage at Clause 21.06 was the focus of a great deal of attention during the hearing. Whilst one of the key issues listed in 21.06-1 is said to be maintaining a clear distinction between the types of development outcomes in the locations for higher density development and the lower density residential hinterland, we find that the objectives and strategies outlined in the various sections of Clause 21.06 do not provide clear guidance on how to maintain that distinction between the locations for higher density development and the lower density residential hinterland, or even between substantial, incremental and minimal change areas.
3. At present the land is zoned Residential 1. As such there is no recognition through zone and overlay controls of the different built form outcomes flowing from its designation within a substantial change area. However the forthcoming implementation of the new State wide residential zones has the ability to address this shortcoming, at least in terms of the height of future development in the different change areas.[1]
4. Therefore, whilst we recognise that the forthcoming new zones will provide some distinction between the different change areas, in a policy sense we consider that Clause 21.06 leaves much to be desired. For example, the general objectives and strategies for built form character in Clause 21.06-4 are said to apply to all areas and types of development. We agree with Mr Bromhead that a common sense approach needs to be taken in applying and balancing these and other policies, but the fact remains that the strategies in Clause 21.06-4 do not distinguish between those areas designated in the three different categories of change.
5. Commonsense would suggest, for example, that a strategy such as that contained at 1.8 (Encourage good design which respects the scale, height, density, bulk, setbacks, style, form, building materials, colours and character of buildings, fences and gardens of the street or any defined character precinct) needs to be considered on the basis of whether the site is in a substantial, incremental or minimal change area. The question in this example is not what is meant by 'respect' but rather what weight to give to existing built form and garden character when an area is identified for substantial rather than incremental or minimal change.
6. On the basis of their analysis of the planning scheme, the two planning witnesses are supportive of higher density housing on the review site and both support a four storey scale along Malvern Road. However, there is a difference of opinion about the adequacy of setbacks and the height and extent of built form towards the centre and north end of the site. Given Council's most recent thinking as reflected in the revised local policies and the proposed new zones, we are somewhat perplexed why Council is so concerned about height, particularly as it faces Malvern Road. We accept the proposition that a building must be viewed three dimensionally and that it is the combination of height, setbacks, articulation, materials and colours that determine whether a building is acceptable in the site context.
7. We discuss these design matters in the next section, but in principle, we consider that there is clear policy support for a more intensive, and taller, residential development on this site which is identified as a strategic redevelopment site when assessed against the criteria in Clause 16.01-3, has been very recently identified in local policy as within a substantial change area, is on the PPTN, and within easy walking distance of a Neighbourhood Activity Centre and train station.

Is the design an acceptable response to site context?

1. Before dealing with each of the site context issues, we again emphasise that our consideration is predicated on the policy directions and context we have discussed in the previous section. An assessment of the acceptability of the design response to the site context cannot be divorced from those policy settings. For example, if Council had identified this site and this section of Malvern Road as an incremental change area and sought to apply a different General Residential Zone (for instance the GRZ2C with a 9 metres mandatory height limit) then our starting point and assessment would be quite different.

How well has the building responded to the built form character of the neighbourhood?

1. There can be no doubt that the proposed building does not respond in any meaningful way to the existing scale, height, density, bulk, setbacks, style, form, building materials, colours and character of buildings, fences and gardens of the street or streets. It represents a complete change from those aspects of the existing built form consisting of single storey, Edwardian era housing stock along the nearby sections of Malvern and Orrong Roads to the north east of the intersection, many of which high impermeable front fences.
2. Many divisions of the Tribunal have commented about what 'respect' means and made it clear that it does not mean replication. The Tribunal has also commented that achievement of urban consolidation policies and an intensification of development necessarily mean that existing neighbourhood character must change. Whilst that comment is often made in the context of applications for modest infill medium density developments where dwellings are being constructed in backyards, the comment is even more relevant in an area which Council has identified for substantial change.
3. We have already made comment that local policies do not clearly distinguish between the three change areas so that it is left up to the Council, and the Tribunal on review, to decide what weight to give these policies, many of which appear to be at odds with one another. For example, although we discuss landscaping in more detail later in our reasons, one of the strategies in Clause 21.06-2 is to ensure new developments incorporate a designated landscape setting with substantial canopy tree vegetation, with the exception of land in a Commercial Zone where a street wall character is preferred.
4. Whilst the reference to a different outcome in Commercial Zones is entirely understandable, the strategy fails to acknowledge that different landscape outcomes may also be required in order to achieve other policies asking, for example, that medium and higher density housing be directed to substantial change areas.
5. We acknowledge that there are some clues in policy that a different outcome may be acceptable depending on location, although such policy does not link back to the three change areas. Instead the reference in Clause 21.06-1 is to two geographically separated parts of the municipality:

Protect and reinforce Stonnington's distinctive built form character, in particular:

• the historical distinction between the inner urban character at the western end of the municipality and the suburban garden setting character of the eastern part;

1. Although the review site is geographically located towards the western end of the municipality, we consider that the area around the review site has a more suburban garden character than the inner urban areas around Prahran and Windsor. That character must influence the built form on this site, even though it is identified for substantial change. It does not mean that a four and five storey apartment style building is necessarily unacceptable, rather that the actual built form in terms of setbacks, articulation and space for taller landscaping needs to be managed differently from, for example, the inner much more urban areas at the far western end of the municipality.

1. We have previously commented about the impending introduction of the new residential zones. Amendment C187 proposes that the land along both sides of Malvern Road east of Orrong Road be included in the General Residential 1 Zone (Key Boulevards) with a 13.5 metres mandatory height limit. The land along Orrong Road to the west of the review site is to be included in the General Residential 2 Zone (Residential Boulevard) with a 12 metres mandatory height limit. Land to the north of the review site is to be in the General Residential 6 (Garden River Area B) with a 12 metres mandatory height limit. Whilst these may yet change before gazettal, they provide a clear indication of Council's expectations about the potential height of built form in these areas. They will also implement the height controls based on whether a site is in a substantial, incremental or minimal change area.
2. The zones also allow an increase in the maximum height depending on land slope and whether the land is in Special Building or Land Subject to Inundation Overlays. As applied to the review site it would allow a building of 14.5 metres because of land slope with a further increase because of the Special Building Overlay for an overall maximum height of 17.01 metres. The building at its highest point is approximately 16.3 metres and does not exceed the proposed mandatory height limit in the General Residential 1 Zone.
3. However, just because the building does not exceed the proposed mandatory height controls does not automatically mean that its height is acceptable.
4. There is no doubt in our minds that the proposed building will be visually confronting given that it is the first tall building in the section of Malvern Road between Orrong Road and Clendon Road. There is a three storey development comprising three attached town houses on the north-west corner of Malvern and Clendon Roads but we consider it has a very different character from large apartment buildings containing many dwellings. Taller apartment style buildings do exist on this side of Malvern Road, but they are further east beyond Clendon Road and not visible from near the review site because of the screening effect of the intervening tall street trees. As such those apartments are visually divorced from the section to the west of Mandeville Crescent.
5. Based on our understanding of what Council is trying to achieve through recently approved policies and the proposed new zones, we have concluded that a four storey building with maximum height of 14 metres to Malvern Road is acceptable given the main road location, the designation as an area for substantial change and the existence of taller built form on the southern side of Malvern Road. The new built form and character which must inevitably follow from the recent and forthcoming changes to the planning scheme will result, over time, in a very different character along Malvern Road and other main arterial roads. Allowing change in these areas is consistent with Council's desire to protect the character and amenity of the residential hinterland by directing the majority of new housing away from these areas.[2]
6. However, we are concerned about the height of the development towards the northern part of the site where the building reaches a height of approximately 16.3 metres. At this end of the site the building is adjacent the small rear yards of three dwellings fronting Orrong Road (638, 640 and 642) and the small rear yard of 717 Malvern Road. On our inspection we were able to visit three of these yards. The design as presented to us would remove an existing very tall brick wall along the western boundary and open up views of the building from the dwellings in Orrong Road. In the next section we discuss retention of this brick wall and acknowledge that its retention will screen much of the lower levels of the proposed building. However the top floor (primarily Apartment 22) will still be prominent when viewed from these rear yards as shown on the sections tabled by Mr Bromhead on Day 2 of the hearing. We acknowledge the top floor is setback approximately 10 metres from the boundary wall but consider that the imposition of such a tall structure in this location is unacceptable.
7. We are less concerned about the impact to the properties to the east as the proposed building is to one side rather than across the whole of the rear boundary as it is with the dwellings in Orrong Road. We make this comment even though there is no intervening tall boundary wall to screen views of the building from the rear yards of 717 and 717A Malvern Road and that the whole height of the building will be visible, particularly when viewed from the north facing rear yard of 717A Malvern Road.
8. In making these comments we want to make it clear that we are not concerned that the building can be seen, but rather we are concerned about the visual domination of such a tall structure over the secluded open spaces of the adjoining small yards, and indeed more widely. We also acknowledge that in time, sites in this area will likely be redeveloped in accordance with the policy directions contained in the planning scheme and the new zone controls. This is likely to be achieved more easily in Malvern Road rather than the small sites in Orrong Road, where redevelopment of individual sites is unlikely to achieve a great increase in height and scale of built form. Site consolidation may result in built form of a scale anticipated by the General Residential Zone but we consider it more likely that most of these individual properties will remain largely unaltered, with an amenity based on the existing layout and orientation of rear windows and outdoor secluded spaces.
9. We therefore support Mr Iles suggestion that Apartment 22 be deleted. Deletion has the effect of reducing the maximum height of the building to approximately 14.5 metres opposite the rear yard of 638 Orrong Road. We consider such an outcome strikes a more appropriate balance between allowing an intensification of development and higher built form in accordance with the substantial change designation and proposed inclusion in the General Residential Zone 1 and the need to provide a sensitive transition with adjoining lower density development.
10. We now turn our attention to boundary setbacks. We have previously noted that assessment against Clause 55 (ResCode) is not required for this application and that its standards do not apply. Relevantly to this section of our reasons, numeric standards for front setback (B6) and side and rear boundary setbacks (B17) do not apply. However, the applicant has chosen to design the building to closely match the B17 setback envelope as it applies to the two side boundaries in an effort to minimise adverse bulk impacts to the adjoining properties. We comment about these side setbacks later in our reasons.
11. The plans also depict the B17 envelope as it applies to the rear boundary and demonstrates non-compliance at all levels. Despite this non-compliance to a standard that it is not required to be assessed, we record that with one minor exception we support the rear boundary setbacks. The one minor exception is that we consider there are practical sight line benefits if the small section of ground level wall between the basement ramp and the eastern boundary is setback to match that of the garages of 717 Malvern Road. It is a very minor change which we do not expect will have any material impact on the adjoining bike store but it provides longer sight lines for drivers exiting the basement.
12. The front setback is not required to be assessed using the formula contained in standard B6 and yet Council and Mr Iles consider that the front setback is inadequate. We agree with them but not because of any assessment against standard B6. Instead we are concerned that the setback has simply not responded to the specific site context. Despite not being on the corner, this site is very exposed when viewed from the west and south west. That exposure is partly caused by the elevated road pavement over the railway line, the wide expense of the intersection, the setting back of the single storey dwelling and front brick fence to the west to accommodate the generous left turn slip lane from Orrong Road, and the absence of a tall street tree in front of the workshop at 711 Malvern Road.
13. Even if the adjoining dwelling is redeveloped for a taller building in accordance with its inclusion within a substantial change area and General Residential Zone 2, it is unlikely that any such building will be able to ameliorate the visual impact of the proposed four storey building setback approximately 6 metres from the front boundary. We consider that an additional setback is required to both visually recess the built form from the street but also provide more room for substantial canopy landscaping. We have concluded that all levels should be setback an additional 1.5 metres from the frontage. All elements including columns and balconies should be setback the same distance so that the existing articulation as proposed remains the same.
14. In the case of the top level, we have previously stated that we require the removal of Apartment 22. Setting back the top level by 1.5 metres may result in a need to occupy part of the space previously occupied by Apartment 22 but we consider that the benefits of the additional front setback justify a small northward extension of the top level. In not asking for an even greater setback to the top floor we are aware that local policy at Clause 21.06-4 includes a strategy to:

Ensure higher elements above street walls of 2-3 storeys are set back behind the facade to minimise impacts on the streetscape and to maintain the human scale of development at street level, unless it can be demonstrated that a higher podium meets the preferred character of the area.

1. As with other policies, there is no distinction drawn between different change areas and how application of this policy may vary depending on the change area. Indeed the language appears to have more to do with tall towers that may be found in activity centres rather than lower residential buildings.
2. Nevertheless, we consider that Council's aim of minimising the impact of buildings on the streetscape and maintaining a human scale is better achieved in this particular case by removing the considerable bulk of Apartment 22 to the north. Increasing the setback of the façade from Malvern Road and allowing more space for the generous landscape treatment proposed will, when coupled with repair of the street planting, result in the proposal having a beneficial impact on the streetscape.
3. Furthermore, we consider that the flat façade with its recessed central glazed element is integral to the proposed design. The painted cement rendered surface will provide a modest backdrop for the proposed planting of 8 metre high trees, hedges and other massed planting, together with the wisteria covered entry pergola. In our experience, the 'wedding cake' approach is not always successful when viewed obliquely. We also consider that further recessing the street façade, which pushes the bulk of the building to the north, has the potential to further compromise the interface with the adjoining residential area.
4. We now turn to the side setbacks. As with the rear setbacks, we generally support the setbacks shown on the substituted plans. With some very minor exceptions the building accords with the B17 envelope along both side boundaries. We later discuss balcony design, but in terms of the actual setback of walls and the level of articulation, we consider that other than for Apartment 22, the building has achieved an appropriate balance between protecting the amenity of neighbours and providing additional housing in response to local policy for this substantial change area.

Are there amenity benefits to Orrong Road residents from the retention of the brick wall along the western boundary?

1. One of Mr Iles' recommendations was retention of the existing brick factory wall along the western boundary. The wall varies in height, dropping 670mm from the south to the north end. At the two most affected properties, the wall height is between 4.3 and 5 metres along the rear of 638 Orrong Road, and between 4.6 and 5.3 metres behind 640 Orrong Road.
2. Mr Chiappi made it clear that although his clients did not support the development, if it was to proceed in some form, then they wished to retain the wall for the full length of their boundaries and at the current height. Having now inspected the dwellings and rear yards of 638 and 640 we can understand why the residents value the existing situation and why they would prefer the wall to remain. Although the wall has some negative impact because it limits sunlight access to the courtyards, these spaces are very private and relatively quiet despite being close to the intersection of two arterial roads, a tram line and a railway line.
3. Mr Pitt indicated during the hearing that his client would be prepared to retain the brick wall, provided the owners of 638, 640 and 642 Orrong Road agreed to allow temporary propping of the wall from their courtyards during the construction phase. This was agreed to by Mr Chiappi.
4. We consider that retention of the wall has major benefits for the owners of these properties. Not only does it maintain the status quo of these secluded courtyards but it reduces opportunities for overlooking and noise transmission from the new dwellings.
5. There is a difference in ground level across the western boundary of the review site, so that it is higher than the land in the rear yards of the Orrong Road properties. The ground floor apartments in the proposed building, with a floor level of 34.21 metres AHD, are around a metre higher than the rear courtyards of 638 and 640 Orrong Road. In so far as these apartments are concerned, retention of the boundary wall means they will be set back from and have an outlook to a wall between 3.47 and 4.14 metres high, around 1.5 metres higher than the structure proposed in the substituted plans. Whilst the existing wall provides an acceptable level of screening and prevents unreasonable overlooking, we are concerned about the cumulative effects of the projection of the first floor balconies directly above and the retained high wall, on the amenity of the private open space provided to the ground level apartment. We further discuss this issue later in our reasons.

Does landscaping repair and reinforce as required by local policy?

1. Council is critical about the lack of landscaping opportunities and what it says is a failure to respond to the robust new policy at Clause 21.06-2 to repair and reinforce the high quality landscape character of the City. We acknowledge that landscape has been given greater attention in the recently approved local policies. However, landscape is just one of the policies relevant to this application and it is a matter of striking an appropriate balance against all competing policies, not just those dealing with landscape character and the planting of substantial canopy trees.
2. We have previously commented that policy at Clause 21.06-1 acknowledges there is difference between the inner urban character at the western end of the municipality and the suburban garden setting of the eastern part. Whilst this reference is to overall urban structure and character, we consider there is a link between built form and landscaping in that smaller, intensively developed lots simply have less space for landscaping than larger, suburban sized lots. The landscaping on sites in this area is a mix of both types. The dwellings to the west of the review site have garden and courtyard areas that are small, paved and with limited vegetation. Sites further to the north, such as 644 and 646 Orrong Road, have larger gardens and more substantial vegetation. However, it is our assessment that the most significant contribution to landscape character in this immediate locality occurs from the large Plane Trees planted within the nature strips.
3. At present the workshop at 711 Malvern Road contributes nothing to a landscaped character. The front garden at 715 Malvern Road does contribute, although to a limited extent because vegetation can only be viewed over the tall brick wall along the front boundary. The rear yard has some vegetation but we consider it offers little towards creating a landscaped character.
4. Although the application is not required to be assessed against ResCode, we note that the proposed site coverage of 71.3% does not exceed that proposed in the new General Residential 1 Zone. These two sites already have high site coverage because of the 100% hard surface at 711 Malvern Road. The review site is very different from suburban style lots where individual dwellings with site coverages of as low as 20 to 30% are being replaced by medium density developments with site coverages of up to 60%. We consider that a site coverage of 71.3% achieves the aim in local policy of avoiding extensive site coverage and allows sufficient space for the in-ground planting of taller vegetation.
5. The proposal provides twenty canopy trees, together with hedges and other planting. Whilst there can be debate about what constitutes a canopy tree, these canopy trees are a positive addition to the area. We discussed with Mr Merlo the possibility that the pairs or groups of smaller trees along the side boundaries could be replaced with a single taller and broader spreading canopy tree in each case. We consider that such a modification would have a number of benefits. First, it would allow more space in each location for a taller canopy tree to better filter views of the building. Second it would mean the trunk and foliage of each tree would be less intrusive on the adjoining private terraces and balconies. Finally, fewer but taller trees with more expansive canopies would help repair and restore the landscape in line with the character of the area.
6. Canopy trees can grow in quite confined spaces and we note that all canopy trees will be planted in-ground. The additional front setback (the landscape proposal for which we find acceptable) will also provide more air space for the spread of tree canopies. We consider that a modified landscape proposal can be successful and that it will be a positive addition to the landscaping that exists along this part of Malvern Road.
7. The absence of a street tree outside 711 Malvern Road exacerbates the prominence of the site and any tall building constructed on it when viewed from the direction of the intersection. Whilst the full width crossover has in the past precluded the planting of a street tree, the removal of the crossover provides an opportunity to continue the avenue of Plane Trees towards the intersection. The permit applicant has indicated a willingness to plant such a tree and we would encourage Council and VicRoads to proactively support the selection and planting of a Plane Tree within the reinstated nature strip. Repairing and reinforcing landscaping can be just as effective if carried out on public land, and the Council has the perfect opportunity to do so at this prominent location.

Are there any unreasonable internal or external amenity effects?

1. Two of the grounds of refusal concerned overlooking and overshadowing. Subject to the retention of the western boundary wall and deletion of Apartment 22, Mr Iles does not identify any particular adverse amenity impacts to neighbours. Even with retention of the wall, Mr Iles did not find the extent of overshadowing significant and considered that overlooking has been dealt with appropriately. He also considers that an adequate level of daylight will be maintained to existing rooms of the adjoining dwellings.
2. We agree with his assessment. Although retention of the existing brick wall does not necessarily provide an improvement to sunlight penetration to the dwellings to the west, it provides an enhanced sense of privacy and retains the existing physical situation for neighbours.
3. With one exception, we consider that the internal amenity of the proposed dwellings is very good. The internal corridors are generous and the rooms well proportioned, with 2.7 metre ceiling heights. Where 'saddle-back' bedrooms are proposed they are either paired, which doubles the width of the light court, or are able to obtain additional light through the glazing to the living rooms.
4. The one exception concerns the roofing over of balconies/terraces on the ground floor. We consider this provides an unacceptable level of sunlight access to these spaces and we require a modification to the first floor balconies so that they do not completely overhang those below them. This may involve reconfiguration of both the ground and first floor balconies. With the retention of the brick wall to the west, there may be an opportunity for those balconies/terraces at ground level to extend further to the west. Although the eastern boundary does not have a similar high brick wall, we consider that the balconies/terraces along the eastern side could also be reconfigured and extended over the drainage line in anticipation of taller structures that may be built on the site to the east in response to the controls and policies for this substantial change area. This change has the advantage on both the east and west of increasing the exposure of the balconies/terraces to the northern aspect.
5. Council was concerned that the materials and finishes proposed did not reflect the brick and terracotta evident in the Edwardian housing adjacent to the site. We find the decorative finishes and materials proposed acceptable. They echo the original Art Deco preference for plain surfaces with vertical and horizontal accents. Painted cement render is a traditional and long lasting wall treatment. It can be found in many earlier blocks of flats. As we have previously remarked, this building will have little in common with its existing neighbours, but this is a location where substantial change is envisaged by Council.

Can the rear laneway cope with additional traffic and should provision of visitor parking be waived in its entirety

1. We note that Council did not refuse the application on any grounds concerning parking or traffic, although Mr Gale did ask some questions of Mr Kiriakidis about the internal layout of the basement. These questions concerned the location of services in the aisle near the lift core and the accessibility of storage units near car spaces 13 and 32. We consider that these two matters can be addressed in any redesign and have included reference to them in our list of modifications. We note that residents did raise concerns about traffic and parking, and that Mr O'Farrell's client who lives at 646 Orrong Road, is more particularly concerned about the use of Mandeville Lane to access the development.
2. We note that Malvern Road is in a Road Zone Category 1. Although sites along Malvern Road, including 711 and 715, currently have direct access from that road, as is common along all arterial roads, VicRoads strongly supports the removal of direct access to arterial roads for larger redevelopment proposals where practical alternative access is available from side streets or rear lanes.
3. In this case that alternative access is available from a 3 metres wide sealed laneway along the rear boundary that provides two separate links to Mandeville Crescent - one to the east and the other to the north. As now operating, the eastern leg of the laneway terminates at a roller door just west of the intersection with the northern leg. The laneway provides rear access to properties fronting Malvern Road, Orrong Road and two properties in Mandeville Crescent. The Toorak Bowling Club to the north east abuts both legs of the laneway. Except for a single 'informal' car space adjacent the intersection of the two legs of the laneway, no vehicular access is provided to the Bowling Club from the laneway.
4. Mr Kiriakidis has undertaken an assessment of the laneway and its ability to cater for the extra traffic generated by the proposed development. Video traffic movement counts were undertaken in April 2013 at both ends of Mandeville Lane where they intersect with Mandeville Crescent. These indicated 24 hour flows of 18 along the northern leg and 19 along the eastern leg or 37 traffic movements per day. Morning peak hour flows were 3 to and from the northern leg and 2 to and from the eastern leg. None were recorded in the evening peak. A later survey in March 2014 indicated flows of 4 to and from the northern leg in the morning peak (none in the evening) and 4 in the morning peak to and from the eastern leg (none in the evening peak). We agree with Mr Kiriakidis that Mandeville Lane is lightly trafficked.
5. Mr Kiriakidis estimates that the proposed development will add an extra 110 movements per day or 11 movements during both the morning and evening peak. His daily trip generation rate of 5 movements per dwelling is based on the rates set out in the RTANSW publication Guide to Traffic Generating Development (October 2002). Without being too precise, we accept that trip generation rates are likely to be around this figure given the locational attributes of the site and very easy access to a number of public transport options including heavy rail at Toorak train station.
6. Based on the analysis provided by Mr Kiriakidis, the effect of the development is to increase the daily movements along the laneway to 147 and the peak movements to approximately 14. Even if we include extra movements because of the additional spaces required for non-residents (see our comments below), we are not persuaded that traffic movements in the laneway will be as unmanageable or inconvenient as suggested by Mr O'Farrell. We consider that the option of two access points further reduces the likelihood of adverse impacts on any one leg. We also note that the access ramp to the development is directly opposite the northern leg so that a clear view is obtained along the laneway for drivers wishing to exit. We have previously made comment about providing an additional setback of the ground floor wall between the ramp and the eastern boundary which will open up views along the eastern leg for driver's wishing to exit the site.
7. The proposal provides 32 car spaces against a residential parking requirement for 24 spaces when assessed using the rates set out in Clause 52.06. Four visitor spaces are also required, but the applicant has chosen not to allocate any of the spaces to visitors, instead has provided additional spaces to residents. Council did not raise any concerns about the amount of on-site parking although it was of concern to nearby residents.
8. Whilst we accept that there may be sufficient on-street parking for visitors and that visitors may find the rear laneway access inconvenient to use, we do not accept that there should be no visitor parking at all available on-site. There appears to be an assumption that visitor parking is only used by casual visitors. That may be part of the demand, but in our experience there is also demand by more regular visitors such as cleaners, carers, tradespersons and the like. We consider this type of visitor is often overlooked in discussions about reducing or waiving visitor parking.
9. Given that there is a surplus of spaces for residents we require four spaces to be set aside for visitors or perhaps more correctly identified as being for 'non-residents'. We do not have any specific requirements on how these spaces could be managed or made available and would not include a condition concerning a car parking management plan if a permit is eventually granted. Instead we would be content for the Owners Corporation to manage these spaces as it sees fit. The key point is that these spaces are available for non-residents rather than residents. Our decision means that a permit is not required to waive or reduce on-site parking pursuant to Clause 52.06.

1. At the beginning of his submission Mr O'Farrell submitted that 'the nub of the case is that the application seeks too much based on policy imperatives'. We agree with him to the extent that the nub of the case is really about the extent of built form that can be supported on this site given the site context and the policy imperatives contained in the Stonnington Planning Scheme.
2. Whilst we agree with Council and neighbours that the current proposal should not be supported, we consider that a modified proposal may strike the right balance having regard to the test set out in Clause 10.04 which requires us to endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.
3. In the next section we have included a list of modifications which we require the applicant to make to the proposal we have considered. We emphasise that even if these changes are made, we may not approve the development if we are not satisfied that it results in an acceptable development. However, they are changes that may result in one that achieves a more acceptable balance when assessed against the relevant and sometimes conflicting objectives and policies contained in the Stonnington Planning Scheme.

1. A new set of plans is to be prepared based on the modified layout shown on the substituted plans (being TP01 to TP17 Revision E) but with the following further changes:

1. Deletion of apartment 22. 2. An increase in the front setback to all floors and all elements including columns and balconies by 1.5 metres.

1. No change to side and rear boundary setbacks as a result of the change to the front setbacks, except that Apartment 21 may be further setback by up to 1.5 metres to occupy a portion of space previously occupied by the deleted Apartment 22.

1. Retention of the western boundary wall for the whole length of the rear boundaries of 638, 640 and 642 Orrong Road. Subject to detailed design, the wall may also be retained for part of the boundary with 636 Orrong Road. 2. The balconies of all west and east facing ground and first floor apartments reconfigured so that the first floor balconies do not cover more than 50% of the balconies/terraces below them. All altered balconies must, as a minimum, have a width of 1.6 metres and area of 8 square metres. 3. The ground floor wall abutting the rear laneway, east of the basement ramp splay, must be set back a minimum of 1.2 metres to match the setback of the garage at 717 Malvern Road. The setback area between the basement ramp and the property boundary is to be paved to allow vehicle movement. 4. Relocation of the FHRC and PL&PSB services on the stairwell wall in the basement so they do not intrude into the access aisle. 5. Car spaces 13 and 32 narrowed to 2.6 metres in width to provide 600mm wide pedestrian walkways to the adjacent storage areas, if the storage areas cannot be relocated to achieve unrestricted access. 6. The landscaping plan altered so that the number of canopy trees along the side boundaries is reduced and replaced by fewer but taller trees with spreading canopies. 7. A notation that a street tree is to be planted in the nature strip outside 711 Malvern Road. 8. Any consequential changes arising from the modifications listed above.

[1] Amendment C187 seeks to implement the new zones and a request for approval pursuant to Section 20(4) of the Planning and Environment Act 1987 was submitted to the Minister for Planning on 24 December 2013. The amendment is currently under review but the amendment and the new zones are expected to be gazetted no later than 1 July 2014.

[2] See Clause 21.05-2 - Location of residential development.