Lazzcorp Projects Pty Ltd v Boroondara CC

Lazzcorp Projects Pty Ltd v Boroondara CC - [2015] VCAT 717 - VCAT 2015 case summary — Zoe

In comparison to the zoning of the review site, land to the south in Rosebery Street, on the western side of Auburn Road, to the eastern side of the commercial properties fronting Camberwell Road and pockets of land to the north of the Auburn Village Activity Centre have all been located within the NRZ. As stated earlier, indeed the overwhelming majority of the residential areas in Boroondara have been included in the NRZ, where the potential for new housing is significantly limited. By implication, if not expressly the intent, Auburn Grove had been identified by its zoning for a greater level of housing change not earmarked for most of the residential areas in Boroondara. We must recognise that intent in our consideration of the application that is before us, and in our application of the zone purpose to provide for moderate housing growth.
The second change is the application of the updated Neighbourhood Character Policy and character area statements at Clause 22.07 of the Boroondara Planning Scheme. This occurred by way of Amendment C199 which was gazetted on 19 October 2014. Under the City of Boroondara Neighbourhood Character Precinct Study Statements (2013) the review site is included in Precinct 27. This Precinct is quite interesting in that it encompasses five discrete pockets of residential land, all of which have been identified as having a character already dominated by flat and apartment style development. As the local policy seeks new development to reflect the identified existing character, the placement of the review site within Precinct 27 gives substantial support to the continued development of apartment style development in Auburn Grove. We will explore the character influences from this statement in our next assessment.
It is for these reasons that we find that the proposed development of an apartment style development, of a height that is consistent with the guidance provided in the GRZ and similar to other developments in the street, gains significant strategic support from the Boroondara Planning Scheme.

[16]

However this decision guideline and the remainder of Schedule 3 to the zone are not relevant in this proceeding, as transitional provisions apply. This proposal has the benefit of the transitional provisions[11] as it was lodged with the Council prior to the introduction of the new zones. The effect of the transitional provisions is that Schedule 3 does not apply to this proceeding.
One might say, why not consider the entire Precinct Statement anyway? There are two good reasons why only the existing character description should be relied upon in this proceeding. Firstly, the method by which policy refers one to the existing neighbourhood character only, appears to be a deliberate intention. This is evidenced by the fact that only some of the schedules to the new format residential zones then refer decision makers to the other parts of the Precinct Statements. We consider this indicates there has been a deliberate intent for policy to direct all applications to have regard to the existing character, and only some applications to have regard to the preferred character statement and design guidelines. The provisions in the schedule to the zone do not apply to this proposal, by virtue of the transitional provisions. As such, there is no direction from the Boroondara Planning Scheme for us to consider the preferred character statement and design guidelines.
Secondly, the Precinct Statements are found in a reference document. Such reference documents do not form part of the Boroondara Planning Scheme, as incorporated documents do. They therefore should be referred to selectively, and only be used in a manner where they clarify what policy already says. Reference Documents should never be used in a manner where they significantly add or change what policy is saying, or what policy is identifying as relevant considerations.
For these reasons, we will only have regard to the existing character description from the Precinct Statement for Area 27. This existing character description emphasises the already heavy presence of three storey flat forms, a mix of flat and pitched roofs, minimal front setbacks in the order of 5 metres, minimal side setbacks and small front gardens. This analysis informs the assessment that follows.
Council submitted that the proposed development was contrary to the existing character in relation to the overall height and width of the front façade, the lack of landscaping opportunities and extent of built form at the rear of the site. The residents raised concern in relation to these matters, as well as the proposed front setback.
In terms of its presentation to Auburn Grove, the Council submitted that the development unreasonably adopts a front setback that is smaller than the adjacent block of flats at 26 Auburn Grove, while proposing a higher built form. The Council was also critical of the overall width of the front façade, it being around twice the width of the nearest examples of walk up flats. This criticism is despite the following statement from the Council's delegate report:

[21]

an increased setback to the top level of the proposed development, whereas the ground and first floors are setback 6.45 metres, and the second floor setback 9.1 metres. In comparison the flats generally adopt a singular upright form.
Secondly, the post war era flats do not represent the optimal or preferred development of land in this precinct, having regard to guidance from the Boroondara Planning Scheme. Development techniques have progressed significantly since the post war boom of construction, and new development should be allowed to express contemporary architecture while providing for modern expectations of accommodation. The provisions of the GRZ recognise modern construction techniques and standards, and sets a mandatory building height for this discrete precinct of 11.5 metres. While the proposal is exempt from the mandatory height limit due to the transitional provisions, this height limit is indicative of the very recent Council intent to allow building forms in this area that are noticeably higher than the surrounding flat developments.
The proposal that is before us does not seek to utilise all the relevant height limit, even though it could have exceeded it due to the transitional provisions. It proposes a wall height of 9.89 metres to the front façade, a maximum height to the parapet of 10.26 metres, and a maximum overall height to projecting clerestory windows in the roof of 11.3 metres. We find this range of heights to be consistent with the existing neighbourhood character, and consider the building will be read as a similar height to many of the nearby flat developments in Auburn Grove.
In relation to the overall width of the façade, we find that is an appropriate response to the consolidation of two sites that has been achieved to form the review site. Such site consolidation is strongly encouraged, and in this proceeding has not just resulted in a wider building, but also in side setbacks that exceed the relevant ResCode standard. Such setbacks might not have been able to be achieved on a single development site. Returning to the front façade, we find that its width is well broken up by the range of materials and articulation, and the use of projecting nibs which effectively breaks the facade into two forms, replicating the rhythm of façade widths found elsewhere in this street.
The surrounding residents were highly critical of the proposed front setbacks. Under Standard B6, the proposed development is required to be setback 6.76 metres. Instead, the nib walls that form part of the architectural element are setback 6.45 metres, an encroachment of some 310mm. The remainder of the façade is setback 7.17 metres, in accordance with Standard B6. We think the arguments put before the Tribunal by those parties that oppose the grant of a permit really seek compliance with the front setback standard for compliance's sake. We were not addressed as to any real impact from the provision of a varied setback to the front façade of the proposed development, some of which will be slightly forward of the standard, and some set further back. On our own assessment, we see no negative consequences of the reduction of the front setback standard by 310mm, and so find the proposed setback to be appropriate.
Mr Murray expressed a concern that the non-compliance with the front setback standard will affect the privacy of his apartment on the opposite side of Auburn Grove, particularly when he opens his bedroom curtains. We are not persuaded by this submission. We feel that the privacy of the apartments on the opposite side of Auburn Grove is far more likely to be affected by the level of pedestrian and vehicular activity occurring in Auburn Grove itself, rather than an apartment building separated by some 33 metres, with substantial street trees in between.
Mr Murray also submitted that the front setback standard is not achieved as the proposed terraces, surrounded by raised planter boxes, should be defined as a porch which exceeds the allowable encroachment into the front setback. The relevant part of the front setback standard reads as follows:

[23]

What is before us is neither a porch, pergola or verandah. It is simply two paved areas in a front setback, both of which are set below natural ground level, surrounded by planting that needs to be in raised planter boxes due to the presence of the basement underground. Such a paved and landscaped setting will present no differently to the street than other properties that might constitute a mix of hard and soft landscaping, and solid fences or front walls, within the front setback. We are not persuaded that such a landscaping approach should somehow offend the front setback standard.
For these reasons we find the elements at the front of the site to be an appropriate response to the character of Auburn Grove, while at the same time appropriately capitalising on the clear role this precinct is intended to play to provide for housing growth of increased diversity.
We now turn our attention to the rear of the site. The parties that oppose the grant of a permit raised concern with the scale of the development at the rear of the site, and the small setbacks at each level to the rear boundary. These parties submitted that the proposal was not respectful to the open rear yard character of the surrounding allotments, would present unreasonable levels of scale and bulk to surrounding properties, and would result in an unreasonable transition to the existing and expected future built form in the adjacent NRZ. We will deal separately with the prospect of scale and bulk to surrounding properties in the off-site amenity impact assessment below.
In considering these submissions, we note the Precinct Statement and associated guidelines make no specific reference to the importance of protecting the character of backyards. The only references made to rear and side setbacks relates to providing space to accommodate the retention and planting of large trees.
We have not been persuaded that this is a neighbourhood characterised by a consistent open rear yard character. While we recognise the two flat developments to the west of the site have significant rear setbacks, those setbacks are used to provide for at grade car parking, rather than open landscaped rear yards. Further, the review site and land to the east at 34 Auburn Grove both have significant structures in their rear yards, and the medium density developments at both 44-46 and 48-50 Auburn Grove both extend with multi-storey development deep into their respective rear yards.
We also need to have regard to the housing role identified by this land within the GRZ. In such a context, we find that a request for an open rear yard character to be established where one is not characteristically part of this neighbourhood to be working against the important role identified for land along Auburn Grove.
We have also not been persuaded that the proposed development does not provide a suitable transition to the land in the NRZ. The review site and adjoining properties are burdened by a mandatory height limit of 11.5 metres, by virtue of their zoning and slope. This compares to an 8.0 or 9.0 metre[12] height limit in the NRZ. The difference in height limits indicates that some change in heights is a reasonable expectation along the interface. That is, it would be unreasonable to enforce the NRZ height limits on the part of the GRZ sited along the interface. That is particularly the case in this context, where the extent of the GRZ is no wider than the properties either side of Auburn Grove.
We also note that this proposed development does not seek to realise the height limit of 11.5 metres on the review site. The maximum height proposed in this development is 11.3 metres. However closer to the rear boundary, the building has been cleverly and respectfully stepped down with the slope of the land, and a setback of 4.8 metres is provided to the top level. The height of the building at this setback is 9.95 metres. Another key factor is the location of a laneway at the rear of the site which increases the separation between the review site and those properties in the NRZ. Having regard to these factors, we find that the proposed development presents an appropriate level of scale and bulk to the rear of the site.
For these reasons we find that the proposal is an appropriate response to the character of the surrounding area.

[25]

The parties raised concern about visual bulk to the adjoining properties, particularly from the streetscape and properties to the south. We have already assessed visual bulk from a streetscape perspective and found it to be acceptable.
We consider the property that is most affected by visual bulk is that to the immediate east. This adjoining property has an open rear yard, that will have a clear view, at relatively close distances, to the rear half of the proposed apartment building. We must say at the outset that views from such rear yards to large three storey buildings is not uncommon in this neighbourhood, having regard to the number of flat developments, and their regular siting deep into blocks and close to at least one side boundary. It is also relevant that this small pocket of residential land has been earmarked, by virtue of its zoning, for further development of this scale. Those contextual elements must influence our decision making on the suitability of the visual bulk impacts to the adjoining property to the east.
Another influencing factor is that until the last weeks prior to the hearing, the owner of the adjoining land to the east was a party opposing the proposed development. Prior to the hearing this owner advised the Tribunal in writing that he had reached an agreement with the Applicant regarding screening and landscaping measures, and subsequently withdrew as a party. That this land owner has accepted the likely visual bulk impacts from this proposal weighs on our decision making task. Having regard to the range of setbacks, the various height of the development, the high level of articulation and the strategic intent for this land, we find that the proposed development will not present unreasonable levels of scale and bulk to the adjoining property to the east.
The property to the west is a three storey apartment block which extends two-thirds through the site, with the remainder occupied by boundary to boundary car parking, with no landscaping. We do not consider this to be a highly sensitive interface. Despite this, the proposal responds with a similar level of articulation and setbacks as that employed to the east elevation. It follows therefore that we find that the proposed development will also not present unreasonable levels of scale and bulk to the adjoining property to the west.
The bulk of objections were received from the owners of properties to the south. We acknowledge there will certainly be views to this development from the south, however, these dwellings are setback a minimum of 14m from the ground floor and 17.5m from the second floor of proposed development, and are separated by a three metre wide laneway as well as garages/outbuildings located within the properties themselves. Whilst the development will be visible, with the graduated setbacks to the rear, façade treatments combined with the landscaping proposed, we do not consider the views of this development will be unreasonable in this context. What we mean by this is, these dwellings do not abut land within a NRZ which has similar development expectations. They are opposite land within a GRZ which has historically experienced higher density development and has been identified as an area where medium and higher density development is to be directed. In this situation, we consider it reasonable to expect there will views towards more substantial development. The question is whether there will be unreasonable visual bulk.
In answering this question, we note the proposal complies with the maximum height. It also complies with the side and rear setbacks specified in Standard B17. We consider this, combined with the horizontal and vertical design elements, varied materials and landscaping proposed will all successfully manage visual bulk to an appropriate level. We accept the building will be visible, but do not accept that this means it will result in unreasonable visual bulk. We are satisfied the proposal is an appropriate response to its local context, recognizing this as one of the areas within the municipality where growth of this magnitude is to be encouraged.
Ms Butler and Mr Simcox raised concern regarding potential overlooking into both their dwellings and private open space. We note privacy screening is to be provided to fences, windows and balconies in accordance with Standard B22. Whilst concern was raised the proposed screening will not prevent overlooking, it must be recognised the objective seeks to limit views only, and not prevent views altogether.
Concern was also raised about the lack of screening to the south facing terrace of Apartment 26. In his evidence, Mr Biasci submitted screening is not required in this location. He submitted the only views within the 9m distance radius (as specified in the Standard) are of the review site, the laneway and garage roofs and outbuildings associated with 21 and 23 Roseberry Street, which he submitted are not sensitive areas. On that basis, he submitted the proposal meets the relevant objective. We find this screening will satisfy the relevant objective and appropriately limit views to neighbouring properties.
Whilst concerns were raised about the potential for overshadowing from the development, particularly from residents located to the south, we note much of this concern related to overshadowing that is likely to occur at the winter solstice. It must be recognised that the relevant standard[13] specifies it is not the winter solstice that is the test, but rather the September equinox. Accordingly, the test is not that no overshadowing should occur, but rather that unreasonable levels of overshadowing should not occur. The shadow diagrams clearly demonstrate the proposal will have no impact on these properties at the September equinox, with the greatest cause of overshadowing at this time being from the fences and outbuildings associated with these properties. On that basis, we are satisfied the proposal will not have an unreasonable impact on the amenity of the properties to the south in terms of overshadowing.
We note the property most likely to be affected is the property to the west, and we note the objection from the owner of this property has been withdrawn. In any case the shadow diagrams demonstrate that the additional shadow impact to this adjoining property will occur at and after 2.00pm at the equinox, and as such the additional shadowing is in accordance with Standard B21.
Mr Simcox raised concern about potential flooding and the inadequacy of infrastructure to cope with 1:100 year storm flood events. We note the site is not included within a Special Building Overlay (SBO) or a Land Subject to Inundation Overlay (LSIO) which are specifically intended to manage development of land within areas subject to flooding. We also note the application was not referred to Council's Drainage Engineer. Whilst Mr Simcox provided a range of information which he submitted challenged the basis for the application of the SBO, we do not consider our role is to reinvent the relevant planning scheme controls. We must apply the Planning Scheme as it is today, and the site is not included within the SBO. We were not persuaded by Mr Simcox's submission that the proposed development is likely to result in an increase flooding hazard, either directly or through the transferral of flood waters. In any event, the applicant agreed to the inclusion of a condition which retains stormwater discharge from the site to the levels experienced prior to this proposed development. For these reasons, we have not been persuaded that the proposal will have any adverse offsite amenity impacts in relation to drainage and stormwater.
For these reasons we find that the proposed development will not cause any unreasonable off-site amenity impacts to the surrounding properties.

[29]

The proposal provides the full requirement for resident parking. The shortfall only relates to visitor parking. Clause 52.06 specifies that five visitor spaces are required, whereas only two are provided on site leaving a shortfall of three spaces. The applicant is seeking a waiver for these three visitor car parking spaces.
In considering whether this waiver is appropriate, we have had regard to the purposes of Clause 52.06, particularly "To ensure the provision of an appropriate number of car parking spaces having regard to the demand likely to be generated, the activities on the land and the nature of the locality", as well as "To ensure that car parking does not adversely affect the amenity of the locality."
The residents raised concern with this proposed waiver submitting that parking on the street is already at capacity, particularly at peak times, and that this proposal will exacerbate the existing parking problem. The respondents submitted that the proposal should provide its full visitor parking requirement on site.
We note that Council's Traffic Engineers raised no concern with the proposed waiver of these visitor parking spaces stating "... it is considered that there is sufficient on-street parking in close proximity to the site to accommodate the visitor demands. Therefore the proposed provision of carparking is considered to be adequate."
In her evidence, Ms Dunstan submitted that based on the apartment style residential development and proximity to public transport, the visitor parking demand would be in the order of 0.12 spaces per apartment at peak times. She submitted this equates to a peak visitor parking demand of three car spaces, however as two visitor parking spaces are provided, only results in a shortfall of one car space at peak demand times for residential use.
We accept Ms Dunstan's evidence that based on the nature of the development proposed, the shortfall for visitor parking is more realistically likely to be one space rather than three. We have based our assessment on this empirical evidence.
In relation to on-street parking supply, Ms Dunstan outlined a series of parking occupancy surveys undertaken in the preparation of her evidence, over a range of weekday and weekend times, which she submitted demonstrated that "there is ample parking available along Auburn Grove and in the nearby area at the peak visitor demand times for this use (i.e, evening and weekends), which are the times when an overflow of 1 visitor space is required by the development."[14]
Mr Barnes referred us to the Camberwell Junction Access Study - Parking Precinct Plan (2013) stating it supports his submission that there is not ample on-street parking due to the restrictions in terms of use and hours.
Mr & Mrs Keeble similarly referred to on-street parking assessments they had undertaken which they submitted demonstrated that on-street parking is at capacity.
Ms Dunstan gave evidence that the Camberwell Junction Access Study undertook an assessment of parking capacity within this street and the surrounding area. This study identified that there is capacity both within Auburn Grove and surrounding streets to accommodate additional on-street parking.
We have made our own observations of parking availability in Auburn Grove. Importantly, we have made these observations on two evenings between 7.00 and 9.00pm, being times when the residents submit is the hardest time to find vacant car parking spaces, and when Ms Dunstan says will be a peak demand time for visitors to the proposed development. Our observations on two different evenings confirm the surveys undertaken by Ms Dunstan's firm, and those that informed the Council's study, that is there is a significant amount of vacant car parking spaces available in Auburn Grove at these times.
We are persuaded by Ms Dunstan's evidence that based on the results of her surveys of the area, which are confirmed by the Council study, and our own observations, that there is sufficient capacity within the nearby streets to accommodate the likely visitor overflow of only one car space.
Ms Dunstan outlined what design changes would be required to accommodate additional parking in the basement. In our opinion the substantial design changes required to accommodate the one additional space are not justified. Further the required changes would be likely to compromise the area available for landscaping, as it would require an expansion of the basement, leaving less ground area available for the planting of canopy trees along the side boundaries.
Concerns were also raised by residents in relation to trade, delivery and other service type vehicles utilising the street. We are satisfied the two visitor parking spaces provided in the basement will also be available for trade/services vehicles associated with the use, which is most likely to occur during the day, when visitor demand is likely to be low. In terms of deliveries, there is no requirement for the provision of loading/unloading facilities in a residential property. Despite this, we anticipate this will be managed the same way deliveries associated with existing residential properties and apartments is already dealt with.
For these reasons, we are satisfied it is appropriate to allow the waiver of the three visitor parking spaces.

[31]

It is proposed that all vegetation be removed from the site and replaced with a landscaping theme that seeks to provide canopy trees within the front setback, as well as along the side and rear boundaries, using a combination of exotic and native species.
Concerns were raised by a number of the residents about the potential impact of the development on a mature Spotted Gum on a neighbouring property. Based on the evidence of John Patrick, we are satisfied this can be adequately managed through the inclusion of a Tree Protection Zone (TPZ) around the Spotted Gum and the preparation of a Tree Management Plan (TMP), which is condition of this permit. We also give weight to the independent analysis that has been undertaken by Council's arborist, which confirms that the works on site are appropriately setback to allow for the retention of this tree, and others that surround the review site.
The surrounding residents raised concerns that the proposed landscaping does not go far enough, and won't adequately screen the development. It is important to recognise there is nothing in the planning scheme that suggests landscaping should screen the development from neighbouring properties or the street. We consider the landscaping proposal is an appropriate response to the site and its context. Instead we adopt the evidence of Mr Patrick that the role of landscaping is to provide a setting for buildings, hopefully for buildings of good architecture that people will want to see.
The landscaping proposed for the review site will go some way to softening the appearance of the building from the street, as well as the rear laneway and neighbouring properties. It will also improve the quality of the secluded private open space for future residents of the review site. We consider it will be a significant improvement on the existing landscape character that exists, particularly to the side and rear boundaries including that to the laneway. We make this finding recognising the lack of landscaping in these locations at present.
Concerns were also raised about the ability to maintain the proposed landscaping, particularly the trees within the raised planter boxes within the front setback and within the rear courtyards. Again we are persuaded by the evidence of Mr Patrick this can initially be achieved through automated systems, and once established should be more self-sustaining. We are also satisfied a condition on the permit will go part way to ensuring this occurs.
There were also concerns raised by Council regarding the potential impact on the three mature plane trees along the nature strip. Based on the evidence of Mr Patrick, we are satisfied the impacts of the proposed development on these trees can be managed through the implementation of a Tree Management Plan as a condition of this permit.
For these reasons we find that the proposed development will achieve good a landscaping outcome, consistent with the character of the surrounding neighbourhood. The proposed landscaping regime will provide an appropriate setting for this building in its context.
After the conclusion of the hearing, the Tribunal has received a further written submission on landscaping matters from Ms Butler. As we did not provide an opportunity at the conclusion of the hearing for the lodgement of further submissions, we have not had regard to the content of the additional submission from Ms Butler.

[35]

Ms Keeble sought conditions addressing the noise levels from the garage roller door and stackers in the basement. From our own past inspections of car stackers, we consider that their position in the basement will mean that any noise impact on the surrounding neighbourhood will be minimal at best. We also consider that the owners and occupiers in the review site will be most affected if the garage roller door is overly noisy, and they are in the position able to correct any noise problem. As such, we won't be including the conditions as sought by Ms Keeble. 2. The residents also sought a condition limiting the time for collection of waste from the review site, compared to the times that Council routinely applies to similar development in the municipality. We have not been persuaded that the review site has any particular characteristics that would warrant the adoption of more restrictive times for the collection of waste. 3. At the start of the Hearing, the Tribunal was presented with a consent agreement reached between the Applicant for Review and the adjoining neighbour to the east. The agreement sought three conditions be added to a condition that requires amended plans be prepared. We have added two of these conditions as components of a redrafted Condition 1. The third condition sought actions to be undertaken in relation to a retained tree, and so is not suitable to be included on a condition requiring amendments to plans. We have instead included that condition as a component of the Tree Management Plan Condition. 4. At the commencement of day 3 of the hearing, Mr Pitt tabled amended elevations showing the lift overrun that had been omitted from the earlier elevations. The lift overrun extends 600mm above the height of the second floor parapet. The Council and the residents who were in attendance that day had an opportunity to make further submissions in their rights of reply regarding these further elevations, but declined to do so. We have considered whether we should give other parties an opportunity to make further written submissions in relation to this new material. In the end we have decided not to provide such an opportunity. Largely that is because the lift overrun is relatively centrally located in the front part of the building, and setback from the parapets to the second floor such that it would not be seen from a ground level location in the surrounding area. We acknowledge the lift overrun might be seen from elevated locations, including from Mr Simcox's first floor windows to the rear of the site, and upper level apartments on the opposite side of Auburn Grove. In Mr Simcox's case the separation distance is around 48 metres, and so we consider the lift overrun to form a very minor element of the overall built form in such views. In the case of apartments on the opposite side of Auburn Grove, the separation distance is around 41 metres, with significant street trees in between. In both cases we consider that no detriment is caused by the addition of the lift overrun, and so no further opportunity for submissions is warranted.

[38]

Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions and three (3) copies provided. When the plans are endorsed they will then form part of the permit. The plans must be substantially in accordance with the plans prepared by David Watson Architect and dated 13 March 2015 (Revision V.01) but modified to show:
- (a) The provision of lighting along the pathway providing for pedestrian access to the site.
- (b) The provision of a lift overrun extending no more than 600mm above the height of the parapet to the second floor and generally in accordance with plans dated 1 May 2015 tabled at the hearing of this proceeding at the Tribunal;
- (c) Installation of a 1.7 metre high, fixed privacy screens to Apartments 13-16 & 23-25, in accordance with the plans prepared by David Watson Architect, Drawing Nos TP06, TP07 and TP09, Revision A, dated 9 April 2015.
- (d) No wall-mounted equipment (such as air conditioning boxes), flues and ducts, satellite dishes, or other roof-mounted equipment be visible from 32 Auburn Grove;
- (e) Technical specifications of the proposed car-stacker system;
- (f) Details of a car park control device which can be accessed by visitors to the development;
- (g) The provision of lighting along the entrance pathway.
- (h) A sample board of construction materials, external finishes and colours;
- (i) A Tree Management Plan in accordance with Condition 6 of this permit
- (j) A Waste Management Plan in accordance with Condition 16 of this permit; and
- (k) An Environmental Sustainable Design Report in accordance with Condition 17 of this permit.
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.
Concurrent with the endorsement of plans required by Condition 1, a landscape plan must be submitted to and endorsed by the Responsible Authority. The plan must be generally in accordance with the Landscape Plan prepared by John Patrick Pty Ltd dated March 2015. The plan must be drawn to scale with dimensions and three (3) copies provided. When the landscape plan is to the satisfaction of the Responsible Authority it will be endorsed and will form part of the permit.

[40]

All buildings and works within the Tree Protection Zone and Critical Root Zone as specified in the endorsed Tree Management Plan must be supervised by a suitably qualified and experienced arborist, to the satisfaction of the Responsible Authority. Any person acting on the permit must advise Council's Arborist (Statutory Planning) in writing at least 48 hours prior to the commencement of the works to be supervised.
All trees specified in the endorsed Tree Management Plan are to be protected and maintained in accordance with the recommendations set out in the report, to the satisfaction of the Responsible Authority.
Prior to the endorsement of the plans referred to in Condition I of this permit, a Tree Management Plan must be submitted by a suitably qualified and experienced Arborist in relation to the management and maintenance of the tree in the south-western setback of No. 32 Auburn Grove and the various street trees in front of the subject sites and must be approved by the Responsible Authority prior to the commencement of any works including demolition and levelling of the site. The tree management plan must make specific recommendations in accordance with the Australian Standard AS4970: 2009 - Protection of Trees on Development Sites and detail the following to the satisfaction of the responsible authority ensuring that the tree remains healthy and viable during construction.
- (a) A tree protection plan to scale is to be submitted along with the tree management plan that is to show:
  - (i) Appropriate protection of Tree 5 including undertaking a tree root investigation prior to the commencement of any buildings and works, to the satisfaction of the Responsible Authority. Management of the tree shall be guided by a Tree Management Plan prepared in accordance with AS4970-2009.
  - (ii) Tree protection during demolition including all outbuildings over the root zone of Tree 5;
  - (iii) Further exploratory investigations to be carried out in relation to the impact to Trees I and 2 as a result of the proposed crossover. This must include recommendations for future protection and construction methods to ensure the health and retention of these trees;
  - (iv) All tree protection fenced off areas and areas where ground protection systems will be used;
  - (v) The type of footings within the tree protection zone;
  - (vi) All services to be located within the tree protection zone and a notation to state that all services will either be located outside of the tree protection zone or bored under the tree protection zone; and
  - (vii) A notation to refer to the tree management plan for specific detail on what actions are required within the tree protection zone.
- (b) Results of exploratory trenching required to be undertaken by the responsible authority or if there is encroachment (construction or excavation) greater than 10% into the tree protection zone (in accordance with Australian Standard AS4970:2009 - Protection of Trees on Development Sites) of any tree to be retained. This must include photographic evidence of any trenching/excavation undertaken;
- (c) Details of appropriate footings within the tree protection zone;
- (d) Supervision timetable required by the Project Arborist to the satisfaction of the responsible authority;
- (e) The details of how the root zone within the tree protection zone will be managed throughout the project;
- (f) All remedial pruning works that are required to be performed on the tree development of the site. The pruning comments must reference Australian Standards 4373:2007, Pruning of Amenity Trees and a detailed photographic diagram specifying what pruning will occur;
- (g) The recommendations contained in the approved tree management plan must be implemented to the satisfaction of the Responsible Authority.
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.
All landscaping works shown on the endorsed landscape plan must be maintained and any dead, diseased or damaged plants replaced, all to the satisfaction of the Responsible Authority.
The site must be drained to the nearest or other suitable piped Council drain to the satisfaction of the Responsible Authority, in a manner which retains stormwater discharge from the site to the levels experienced prior to this approved development.
Before the use starts or 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 {or surfaced with compacted crushed rock or gravel};
- (d) Line marked to indicate each car space; and
- (e) Drained

[41]

Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose, to the satisfaction of the Responsible Authority.
The security door to the basement car park must be remote-controlled to ensure that vehicles do not wait on the ramp to the satisfaction of the Responsible Authority.
Any new vehicle crossover or modification to an existing vehicle crossover must be constructed to the satisfaction of the Responsible Authority.
Before the use starts or any building is occupied, car stackers must be installed in accordance with the endorsed plans.
The car stackers must be routinely serviced and maintained to the satisfaction of the Responsible Authority to ensure satisfactory access to all car spaces and to prevent any adverse effect on adjoining land by the emission of noise.
Visitor parking spaces within the development must be:
- (a) Clearly identified by appropriate signage having an area no greater than 0.3m2
- (b) Line marked to indicate each car space; and
- (c) Available for visitor usage at all times.
All external lighting must be designed, baffled and located so as to prevent light from the site causing any unreasonable impacts on the locality, to the satisfaction of the Responsible Authority.
Without the further written consent of the Responsible Authority, no plant, equipment, sir-conditioning or cooling units, services or architectural features other than those shown on the endorsed plans are permitted to be erected or installed above the roof level of the building, or external to the building.
All waste material not required for further onsite processing must be regularly removed from the site. All vehicles removing waste must have fully secured and contained loads so that no wastes are spilled or dust or odour is created, to satisfaction of the Responsible Authority.
All bins and receptacles used for the collection and storage of solid waste, recyclables and other wastes must be kept in a designated area, to the satisfaction of the Responsible Authority. This storage area must be:
- (a) Properly paved and drained to a legal point of discharge;
- (b) Screened from view with a suitably designed enclosure;
- (c) Supplied with adequate hot and cold water; and
- (d) Maintained in a clean and tidy condition free from offensive odours

[44]

A waste management plan to the satisfaction of the responsible authority must be submitted to and approved by the Responsible Authority. Once satisfactory, such plan will be endorsed and must be implemented to the satisfaction of the Responsible Authority. The plan must provide the following details of a regular private waste (including recyclables) collection service for the subject land including:
- (a) the type/s and number of waste bins;
- (b) screening of bins;
- (c) type/size of trucks; and
- (d) frequency of waste collection.
Prior to the endorsement of any plans pursuant to Condition 1, an Environmentally Sustainable Design (ESD) Report which is to the satisfaction of the Responsible Authority must be prepared by a suitably qualified expert and submitted to the Responsible Authority for approval.
Prior to the commencement of any site works a Construction Management Plan must be submitted to and endorsed by the Responsible Authority. No works are permitted to occur until the Plan has been endorsed by the Responsible Authority. Once endorsed, the Construction Management Plan will form part of the permit and must be implemented to the satisfaction of the Responsible Authority. The plan 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, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises and traffic flows. Any basement carpark on the land must be made available for use by sub-constructors/tradespersons upon completion of such areas, without delay;
- (e) Measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the construction management plan;
- (f) Contact details of key construction site staff;
- (g) The location of any site sheds and the like; and
- (h) Any other relevant matters.
Provision must be made on the site for letter boxes and receptacles for papers to the satisfaction of the Responsible Authority.
This permit will expire if one of the following circumstances applies:
- (a) The development is not started within two years of the issued date of this permit.
- (b) The development is not completed within four years of the issued date of this permit.

At a glance

Court

Decision date

Source

Judgment (53 paragraphs)

Parties

Cases Cited (1)

Lazzcorp Projects Pty Ltd v Boroondara CC (Correction) [2015] VCAT 717 (19 May 2015)