Clauses 11, 15, 16, 21, 22.03, 22.07, 32.01, 55 and 65.

The land is located on the west side of Belgrove Avenue some 44 metres south of Belmore Road. The site is rectangular save for a wider section adjacent to the rear boundary. The land has a frontage of 21.49 metres and a site area of 1015 square metres. A fall of approximately 3m occurs across the site from south-west to north-east and the land contains a single storey dwelling set in an established garden that includes a number of canopy trees.

To the north of the review site is the Belmore Heights shopping centre. An access way behind the shops/commercial premises connects Belgrove Avenue with Balwyn Road to the west and provides rear access to business premises.

The review site adjoins two properties to the west both of which face Balwyn Road. One contains a two-storey church and the other a detached house.

A single storey house adjoins the review site to the south. Opposite, on the east side of Belgrove Avenue, is residential development comprising a multi unit development, a detached dwelling and a vacant lot. Belgrove Avenue contains residential development including single and double storey dwellings in a variety of styles and materials and some limited multi unit development[1].

The Tribunal inspected the site prior to the hearing, on 29 February 2012, and again on 6 March 2012, when an inspection was carried out from two adjoining properties.

Lemasen Pty Ltd v Boroondara CC [2011] VCAT 280; Asolo Developments Pty Ltd v Boroondara CC [2012] VCAT 203; Reid v Nillumbik SC No. 3 [2011] VCAT 925; Benc v City of Doncaster & Templestowe Appeal No. P86/2205; Ardcon Building Designers & Consultants v Whitehorse CC [2010] VCAT 1862; Pearl Diamond Pty Ltd v Stonnington CC [2011] VCAT 2309.

1. In February 2011 the Tribunal handed down a decision[3] in respect of an earlier proposal for the development of the review site with a medium density development comprising a three storey apartment building.
2. That decision was to affirm the Council's decision that no permit be issued. In reaching its decision, the Tribunal expressed a number of concerns in relation to the proposed development.
3. In May 2011 the Applicant sought a planning permit from Boroondara City Council for a modified development of a three storey building comprising 17 apartments. In the Applicant's view the modified proposal responded to the concerns raised in the previous Tribunal decision.
4. At its meeting of 15 September 2011 Boroondara City Council determined to refuse to grant a permit for the proposed development. An Application has been made to review the Council's decision. A number of surrounding residents have filed Statement of Grounds and become parties to the Application for Review.
5. The natural focus of a hearing such as this is always whether the modified proposal adequately responds to the previous Tribunal decision. However, this Tribunal must cast its mind more broadly than that as, while the previous Tribunal decision will be given great weight, I must also be satisfied in relation to all aspects of the proposed development.
6. The key issues or questions for determination are:

1. Is the proposal supported by planning policy? 2. Is the development an appropriate response to the character of the surrounding area?

1. Has the proposal appropriately responded to the concerns expressed in the previous Tribunal decision?

1. Will an appropriate level of off-site and internal amenity be achieved?
2. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Boroondara Planning Scheme, I have decided to set aside the Council's decision and direct that a permit be issued. My reasons follow.

1. Before I come to the merits based issues, I feel that I need to address a matter that formed a significant component of the residents' submission to the Tribunal. They submitted that the overwhelming community opposition to the proposal, as demonstrated in signatures and photographs collected by the residents, should carry significant weight in my consideration.
2. I hope that what I am about to say about this topic does not cause any angst amongst the community.
3. My task is not to decide a popularity contest. Instead, the role of the Tribunal is to apply the provisions of the Planning and Environment Act, the local planning scheme and other relevant legislation in a manner which is separated from the emotions that often accompany a planning dispute.
4. That is not to say that community opinion, or emotions, have no value or place in this jurisdiction. To the contrary, the thoughts and opinions of a community, not matter how large or small that community, provide a valuable source of information and knowledge for the Tribunal. Indeed the submissions and other contributions of the community members in this case added to the depth and richness of the discussion and debate, that could not have been achieved without their input.
5. However, at the end of that discussion and debate, my role is to make a decision based on the merits of the proposal, and the weight of the submissions and evidence received. I cannot make a decision based purely on the number of people who may oppose, or support, a proposed development.
6. I now turn to those merits.

1. None of the parties that oppose the proposed development contended that urban consolidation was not supported on the review site by the relevant policy framework. This is a sensible position, as the site's location adjacent to a local activity centre and near bus routes that run along both Balwyn and Belmore Roads receives considerable policy support for the achievement of urban consolidation.
2. I note that the relevant policy framework has not been amended since the previous Tribunal decision on the site in February 2011. The conclusions that Member Wilson reached in relation to the policy context therefore are still relevant.
3. Of course policy goes further than just identifying opportunities for urban consolidation. Other parts of both State and local policy also seek to direct outcomes in terms of respect for neighbourhood character. I will address this issue separately below.

Is the development an appropriate response to the character of the surrounding area?

1. The residents urged upon me to find that the proposed three storey development was in contrast to the character of the surrounding neighbourhood. In making this submission the residents referred me to the height of the surrounding and nearby development, the nature of nearby medium density development, and the likely form of future development in the nearby activity centre, based on the Council's Activity Centres Strategy.
2. The Council maintained a ground of refusal opposing the three storey scale of the development, though this was not strongly pursued at the hearing.
3. In the previous decision on the site, the Tribunal found that the three storey height of the proposed development, while being new to the street, was an appropriate outcome given all of the relevant considerations.
4. As I need to give this finding great weight, in order for the residents' submission to prevail they needed to either demonstrate that:
   1. The previous Tribunal had failed to have regard to the relevant matters; or,
   2. Some of the relevant considerations had sufficiently changed in the interim period, such as the physical context of the site or the relevant planning policies and controls.
5. I find that neither scenario applies in this matter. None of the submitters attempted to demonstrate that the previous Tribunal decision had failed to have proper regard for the relevant matters. In terms of changes in the interim period, the residents pointed to the adoption of the Activity Centres Strategy by Council, which had identified a three storey height limit on the nearby properties in the adjacent activity centre.
6. I have some understanding of the Council's Activity Centres Strategy resulting from a previous case[4]. It is not a seriously entertained planning proposal given that it has been adopted by Council but not at this stage received authorisation for preparation and exhibition. It is therefore at the very early stages of a rather long process that may result in significant changes.
7. Further, the Strategy itself is ambiguous as to whether the height limits are proposed to be mandatory or discretionary. Therefore, even if the Strategy were approved in its present form, it may lead to the approval of a development of more than 3 storeys in height in the nearby activity centre.
8. I therefore find that I can give the Strategy little weight in the context of this Application, particularly given as it does not propose to be applied to the review site.
9. I therefore find that I should not depart from the findings of the earlier Tribunal decision that a three storey development on the review site is an appropriate response to the surrounding neighbourhood character. Where concerns were raised in that earlier decision about certain facets of the proposal, I address those next.

Has the proposal appropriately responded to the concerns expressed in the previous Tribunal decision?

1. The previous Tribunal could not support the proposal principally due to the following concerns:

1. The extent of boundary to boundary construction; 2. The first floor dominates when viewed from oblique angles in the street;

1. The extent of the first floor at the setbacks proposed creates a building bulk that is unreasonable when viewed from the adjoining property to the south;

1. The stair and lift core should be set back further from the southern boundary; 2. Insufficient landscaping along the extent of the southern boundary; 3. Detrimental impacts on Tree No 11 on the adjoining property to the south; 4. The lack of amenity to the private open spaces of the north facing ground level dwellings, due to the overhanging balconies on the first floor above; 5. The evidence that no visitor car parking be provided on site was not supported.
2. I will address each of these issues in turn. Before I do so, however, I should address the concept of repeat appeals, a matter which was the subject of submissions to this Tribunal.

1. Both Ms Piskuric and Ms O'Neill made submissions to me about the principles of repeat appeals and whether the proposal constituted substantial change from the previous proposal considered by Member Wilson. In making their submissions they both referred me to the decision of Reid v Nillumbik SC No. 3[5] where the Tribunal distinguished between 'classic correcting appeals' and 'correcting repeat appeals.'
2. Both Ms Piskuric and Ms O'Neill submitted that as Member Wilson had determined to refuse to grant a permit, rather than follow an alternative option[6], she must have thought that substantial changes were required. These submissions were particularly made in the context of the increased setbacks required to the built form along the southern boundary. They were also made on the basis that an amended ground floor had been presented to Member Wilson during the course of the hearing, which, it was said, the Member had rejected[7].
3. I make a number of findings in relation to these submissions. First, I do not read into Member Wilson's decision that she had rejected the amended plans presented during the course of the last hearing as an inappropriate set of ground floor setbacks, or that the new proposal should provide a substantial improvement from those plans. What I do read is that the amended plans presented during the least hearing did not address all of the Member's concerns, which clearly they didn't as they only intended to address the landscaping opportunities that were possible along part of the southern boundary.
4. Secondly, I find that it is not my role to determine whether the proposal that is now before me would have satisfied Member Wilson. That is essentially what the submitters against the Application have asked me to do. Rather, having given the past decision great weight, I now need to make my own decision about whether this proposal is appropriate. Unfortunately much of the submissions addressed the former rather than the later proposition.
5. Thirdly, I feel that I don't need to determine whether this case may fall into the categories of a 'classic correcting appeal' or a 'correcting repeat appeal.' Rather, as identified above, I am more concerned with whether the proposed development is an appropriate outcome on the site, and response to the surrounding context, having given the previous decision great weight.
6. That is the analysis that I come to next. In that analysis, I am guided by the decision of the Planning Appeals Board in Benc v City of Doncaster & Templestowe[8] where the following remarks are made:

In the case of a different but similar application which has been prepared in accordance with the advice of the Board, equity or fairness demands that considerable weight be given to the fact that the applicant has endeavoured to accommodate suggestions as to what would be appropriate. This consideration is even more weighty when it is considered that such efforts would usually require the expenditure of considerable sums of money and require the applicant to put up with long delays. There would be little public confidence in the planning processes in this State if applicants find themselves caught in a "Catch 22" situation. As a matter of public policy, in circumstances where this Board rejects a proposal, and then offers constructive suggestions as to possible alternatives, responsible authorities should tread warily and not, without good and justifiable reason, subsequently reject a further application which has been prepared in accordance with the Board's suggestions.

1. In this case I consider that the previous Tribunal decision provided clear direction as to the extent of issues that needed to be addressed in a new application. The remarks quoted above from the Benc decision are therefore relevant.

1. The previous proposal involved boundary to boundary construction across the front façade of the ground floor of the apartment building. Member Wilson found this element of the proposal to be in contrast to the predominantly detached dwelling character of the area.
2. The proposal before this Tribunal removes the development off both side boundaries, providing a setback at the front façade of 2.26 metres from the south boundary and 1.99 metres from the north boundary. These setbacks are maintained or exceeded for the length of the development.
3. None of the parties sought to contend that this criticism of the Tribunal had not been addressed. While there were extensive submissions about the extent of setbacks to the southern boundary, it was clear and accepted that the boundary to boundary element of the proposal had been addressed.
4. I find that the proposal and its side setbacks at the front façade are now more responsive to the detached character of development found in the surrounding neighbourhood.

1. The previous Tribunal decision raised a concern with the eastern parts of the south and north elevations, which were criticised for being insufficiently articulated and therefore inappropriate in oblique streetscape views.
2. The Council and the residents submitted that there was insufficient improvement in the presentation of these areas to warrant a departure from the previous decision. They referred to the setbacks, lack of articulation and lack of glazing in these areas as being supportive of their submissions.
3. I find that the architectural outcomes in these parts of the proposed building to be appropriate. Turning first to the northern elevation, I find that the previous blank component of first floor wall is now gone, and relaced by two sections broken by the 'green wall' above the basement access ramp and punctuated by windows.
4. In terms of the south elevation, the walls are appropriately articulated by windows with a difference in setback between the ground and first floors. This varies to the previous proposal which had a large expanse of blank wall above a wall on the boundary.
5. I find that the changes now result in an appropriately articulated built form outcome to these parts of the northern and southern interfaces.

1. The previous development had setbacks of between 1.76 and 2.76 metres to the southern boundary from the first floor. The lift well was set further back, at 4.79 metres, but was a very narrow element in the overall southern elevation. Member Wilson was concerned that the setbacks proposed would create a building bulk that is unreasonable when viewed from the adjoining property to the south.
2. The Council, Ms O'Neill and the residents all raised considerable concerns regarding the setbacks to the southern elevation, and spent considerable time cross examining both Mr Biles and Dr Atkinson about this matter. Ms O'Neill in her submissions analysed the change in setbacks and submitted that the cumulative effect of the changes were neutral when viewed from the central, most used parts of her client's area of secluded private open space.
3. Member Wilson made the following observations regarding the adjoining property to the south[9]:

The adjoining property to the south, 27 Belgrove Avenue, is occupied by a dwelling that has been designed to take advantage of its northern aspect with its private open space and windows to living room, dining room, meals area and two bedrooms facing the review site. My inspection of this site revealed secluded private open space with high amenity value adjoining the boundary with the review site.

1. I have also inspected the site at 27 Belgrove Avenue and confirm the description provided by Member Wilson. On my inspection I particularly took note of the extent of views that would occur towards the review site from most rooms in the dwelling, including all of the living areas, as well as the area of secluded private open space.
2. The proposed development now incorporates setbacks of between 2.76 and 4.32 metres to the southern boundary from the first floor. Mathematically, increased setbacks have therefore been provided, when compared to the plans that were subject to the previous hearing. I choose to undertake the analysis against these plans rather than the amended plans which were presented to Member Wilson during the course of the last hearing. I have chosen this analysis as it is clear that the decision is based on the plans as they were at the commencement of the last hearing.
3. I therefore cannot agree with Ms O'Neill's submission that the changes are neutral. Appended to Mr Biles' evidence are a series of plans which detail the changes between the plans that were before the previous Tribunal, and those that are before myself. Quite clearly, there are increases in setbacks along most of the length of the southern elevation. These increases vary from 450mm to 1.5 metres. In addition the balcony to Apartment 2.09, which was located within 1.46 metres of the southern boundary, has been relocated to the south-west corner of the proposed building.
4. Despite the mathematical improvement, an assessment of visual bulk is rarely done by numbers. Rather what is required in this matter is a qualitative assessment of the increased setback and whether an appropriate outcome in terms of built form is achieved when viewed from the adjoining property to the south.
5. This requires a subjective decision to be made as to whether the extent of built form, taking into account all of the relevant factors, is appropriate. In this case, the relevant factors include the following:

1. The nature of the development on the affected property (27 Belgrove Avenue). That is the location of private open space and habitable room windows, and the extent of the outlook available from these areas. 2. The character of rear yards in this locality and whether it is common for views to be had to large built forms;

1. The extent of policy encouragement for the achievement of urban consolidation in this location;

1. The height and setbacks of the proposed built form, taking into account the difference in topography between the two sites; 2. The extent of landscaping intervening between the sensitive interface and the proposed built form, both existing within 27 Belgrove Avenue and proposed within the review site; and, 3. The extent of built form that will be visible until such time as any proposed landscaping reaches an effective or mature height.
2. By no means is this list intended to be comprehensive, or a set of standard considerations that might be applicable to any other site. Rather, they are a reflection of the issues that I have considered to be relevant and have given various degrees of weight to in this matter.
3. I have decided that the setbacks proposed to the first floor from the southern boundary of the review site to be largely appropriate. In reaching this decision it is important to understand the desired outcome of the setbacks. The desired outcome is not to have the building set back so that it is not visible from the adjoining property. In an urban setting, particularly in the context of a site already identified by the Tribunal as being suitable for a three storey development, views to built form must be expected.
4. Instead, what is sought is a range of setbacks that will create a varied and interesting built form, which allows for landscaping to be established, and which will not overwhelm or appear unduly close when viewed from the adjoining property.
5. There are two factors which have assisted in my determination that the setbacks are largely appropriate. The first is the way that the development is proposed to commence below natural ground level for much of the southern elevation. In scaling off the southern elevation of the plans, the ground floor level is between 600 and 1200mm below natural ground level. As a result, the first floor will not appear a height of a normal two storey building when viewed from the adjoining property to the south.
6. The second factor is the important screening effect that the alignment of the first floor will provide to the recessed second floor. The second floor was praised by the previous Tribunal decision in terms of its setbacks and the fact that it will be highly concealed from views. Again, I need to give this decision great weight. Certain setbacks to the first floor need to be maintained in order to achieve an appropriate level of concealment. In my view, the proposed setbacks, for the most part, balance appropriately all of the relevant considerations.
7. The one setback that I will require to be changed is that to the smaller bedroom in Apartment 2.08. Towards the conclusion of the hearing Mr Taylor offered to increase this setback from 3.21 metres to 3.51 metres in order to provide greater variation to this part of the southern elevation. While the increase in setback offered is marginal, I consider it to be an appropriate modification that I will endorse.

1. The previous development proposed a setback of 2.76 metres to the stairwell and 4.79 metres to the lift well at all floors. Member Wilson remarked that these setbacks should be increased, particularly at the second floor. In making those remarks, the Member referred to the evidence of Mr Sheppard, who was called by the Applicant to give urban design evidence. It was the evidence of Mr Sheppard that a setback of 4.2 metres should be achieved to the stair and lift wells.
2. The plans before this Tribunal propose a setback of 4.32 metres to a combined core containing both the lift well and the stairs. Therefore, the setback to the stairs has increased, but the increased setback to the lift well is no longer part of the proposal.
3. Ms Piskuric for Council submitted that the sheer three storey scale of the stairwell in the centre of the building will emphasise the scale of the building and dominate the private open space of the adjoining dwelling, despite the increased setback.
4. I do not share the Council's concerns. Firstly, the stairwell will not be read as a three storey form from the adjoining property as it commences at a point below natural ground level such that only the top two floors will be visible above the fenceline, not accounting for the proposed intervening vegetation. Secondly, the increased setbacks to the stairwell from the remainder of the first floor means that, in oblique views, parts of the first floor stairwell will be screened from views. Thirdly, and I come to this matter later in my decision, the views are to be screened by some advanced planting.
5. The proposed setbacks exceed those recommended in the evidence by Mr Sheppard at the previous hearing. That evidence was accepted by Member Wilson. I am satisfied therefore that the changes to the stair and lift well respond to the criticism as outlined in the previous Tribunal decision.
6. More importantly, I find that the setbacks now appropriately reduce the extent of visual bulk to the adjoining property to the south. I did express some concern at the hearing however about the overly heavy rendered finish to this element of the building. I put to Mr Biles questions as to whether the stairwell can be more heavily glazed, in order to make it a lighter element. Mr Biles agreed this would be an appropriate outcome. I will so order in the conditions.

1. The previous proposal was criticised by Member Wilson as it proposed walls along part of the southern boundary of the site, and did not allow for landscaping to be established along the extent of the southern boundary. In particular, the ability to plant vegetation that would soften the view of the built form from the adjoining property to the south was sought.
2. As set out above, the proposal now removes the sections of walls on boundaries. A minimum setback of 2.26 metres is provided at ground floor from the southern boundary. Dr Atkinson gave evidence as to the landscaped outcome that could be achieved in this setback. That evidence proposes the establishment of Ornamental pears and James Stirling pittosporums along the southern boundary of the site.
3. Those trees will grow to a mature height of 11 metres (Ornamental pears) and 5.0-6.0 metres (James Stirling Pittosporums). I am satisfied that this vegetation will soften views to the built form. Indeed for the most part they will almost entirely screen such views at maturity.
4. During the course of the hearing the residents on a number of occasions pursued their view that the proposed landscaping was being used to hide what would otherwise be an inappropriate built form. They made these submissions having regard to the comments of the Tribunal in the decision of Ardcon Building Designers & Consultants v Whitehorse CC[10] where the Tribunal remarked[11]:

Landscaping should complement a development. It should not be used a means of seeking to substantially screen from view a building that is otherwise an inappropriate outcome within its context.

1. The residents relied on this quote as if it intended that the building should be considered appropriate if there were no landscaping proposed at all. I am not so sure that is what was intended. It is reasonable for a development to rely on a combination of setbacks, articulation and landscaping to achieve an appropriate outcome on a site. What is not appropriate is for a development to rely entirely on the landscaping, at the expense of an appropriate consideration of setbacks and articulation.
2. In my view, the proposed development achieves an appropriate balance between the three, that being setbacks, articulation and landscaping. I am therefore satisfied that an appropriate outcome is achieved.

1. In the previous Application a retaining wall was proposed to be constructed along the southern boundary of the site. Due to the close proximity of neighbouring trees, Mr Galbraith gave evidence that this retaining wall should be set back 1.0 metre from the boundary. However, the evidence of Mr Galbriath was that at this distance, there would still be a detrimental impact on the life expectancy of this neighbour's tree. Member Wilson was not satisfied within this outcome.
2. In the plans before this Tribunal, the retaining wall has been set back 1.8 metres. Mr Galbraith has again given evidence at the hearing. His evidence statement contains the following:

The retaining wall has now been set back to some 1.8m from the boundary. As a result of the known root colonization into the subject site, one can now be very confident in saying that there will be no adverse impact on the longevity of either tree as a result of the proposal, so long as there is no excavation or severe soil compaction opposite the trees other than that required to construct the retaining wall.

1. Mr Galbraith's evidence in relation to the location of the retaining wall was not challenged by the other parties. I accept the evidence of Mr Galbraith and am satisfied that the proposal will not detrimentally impact on Tree 11.
2. Ms O'Neill raised, in both submissions and cross examination, the potential for the fence dividing the private open space areas for apartments 1.02 and 1.03 to impact on the roots of Tree 11. Mr Galbriath's evidence was that so long as the fence was supported by posts, which were dug by hand so as to avoid any roots found, that would result in an appropriate outcome. I will require a condition accordingly.

1. In the previous proposal, the north facing ground floor apartments were provided with areas of secluded private open space of a width of 1.99 metres. These spaces had an overall area of between 18 and 20 square metres for three of the apartments and 46.1 square metres for the other apartment which had open space wrapping around it at the rear of the site. Before we come to the concern about receipt of daylight, Member Wilson had this to say about the quantum of private open space[12]:

Although the size of ground level space does not meet the ResCode standard, I consider this is acceptable for the style and size of dwellings proposed. In making this finding I have had regard to the storage opportunities provided in the basement and the proximity of the review site to parkland and a major recreational facility to the north east on Belmore Road.

1. The amended plans has maintained the same widths for the areas of secluded private open space, though the quantum provided to Apartment 1.06 has increased from 18.45 to 23.6 square metres on account of the setting back of the wall that was previously proposed to be located on the northern boundary of the site.
2. I therefore note that the quantum of private open space has not decreased from that which Member Wilson found to be acceptable. I would normally have had concerns with this amount and width of ground level secluded private open space for two bedroom apartments, particularly located as they are at the direct interface to a laneway and car park area for a small activity centre. I am therefore torn between supporting the findings of Member Wilson and following my own concerns about the adequacy of this space.
3. This is an issue that can arise in repeat appeals, and I have been guided by those Tribunal decisions referred to earlier as well as the analysis conducted in Pearl Diamond Pty Ltd v Stonnington CC[13].
4. I find that I should give great weight to Member Wilson's findings in the earlier decision and, out of fairness to the Applicant, I find that I should not vary from that previous decision in this instance for this reason. I therefore find that the quantum of secluded private open space to the apartments to be acceptable.
5. The concern that Member Wilson had was in regard to the sense of enclosure of the private open space areas from the high fence and overhanging balconies from the first floor, and the limited access to daylight to the adjacent living room windows. In that proposal a 1.6 m high fence was proposed and balconies protruded to within 0.78m of the boundary.
6. I will deal first with Apartments 1.04, 1.05 and 1.06. The revised proposal does not vary the fence height, and proposes that balconies and a bedroom protrude above each area of secluded private open space, with a setback of 1.49 metres proposed to the northern boundary. The plans therefore reduce the extent of overhang as was criticised by Member Wilson, but does not eliminate it. I also note that the width of the overhang above Apartment 1.04 has been increased.
7. The extent of proposed overhang to Apartments 1.04, 1.05 and 1.06 of 500mm is no wider than a usual eave line. This overhang would therefore provide some welcome shade in summer, without inappropriately reducing daylight access in the other months of the year. I find this outcome to be acceptable.
8. In relation to Apartment 1.03, the amended plans reduce the overhang only marginally, from a 683mm offset to the northern boundary to an 880mm offset. I accept the submissions of Mr Taylor that Apartment 1.03 has the benefit of additional orientations and does not rely on the northern orientation for its daylight access. I am therefore satisfied in relation to this outcome.

1. The previous proposal provided on site car parking for visitors in the basement though the evidence of Mr Higgs was that such provision should not be made. Member Wilson found it appropriate that visitor spaces be provided on site.
2. Three visitor spaces are proposed in the basement. Standard B16[14] requires the provision of one visitor car parking space to every five dwellings. As the development comprises 17 dwellings, 3 visitor spaces are required. I am satisfied that the provision in the basement is appropriate.
3. The residents also made submissions to the effect that they considered the provision of 19 car parking spaces for residents to be insufficient. They said that it would be more likely that there be two cars per apartment. This has significant implications, they submitted, as there is a high demand for car parking at present in the northern part of Belgrove Avenue.
4. I was not provided with any analysis or data which supported the residents' submissions that the occupants of the two bedroom apartments would likely have two cars each. I therefore find no reason to depart from Standard B16 and its requirement for one car parking space for each two bedroom apartment. In any case, the development exceeds Standard B16 and does indeed provide 2 car parking spaces for two of the 13 two bedroom apartments within this development.
5. I find the overall provision of car parking to the proposed development to be compliant with Standard B16 and therefore satisfy the relevant objective. I also find it to be appropriately responsive to the context of the review site.

Will an appropriate level of off-site and internal amenity be achieved?

1. Off-site amenity impacts by way of visual bulk have been largely addressed in the analysis above. That analysis has concentrated on the impacts to the adjoining property to the south. Ms Brown also requested that I inspect the rear yard of the adjoining property at 182 Balwyn Road. I can confirm that I have undertaken this inspection.
2. The property at 182 Balwyn Road will have some oblique views to the proposed built form, though there will be little direct interface between the proposed development and the review site. Further, the views will be filtered by proposed landscaping within the review site. I find that views to this extent of built form is appropriate given the physical context of the site and the planning policy objectives that apply.
3. Shadow diagrams submitted with the permit application demonstrate that the extent of shadow to adjoining properties is well within that considered appropriate by Standard B21[15]. Though this was not contested by the parties, I find that the extent of overshadowing that will be caused by the proposed development to be appropriate.
4. Also none of the parties asserted that any unreasonable overlooking will be caused by the proposed development. I agree with this position, and find that overlooking will be appropriately restricted by a variety of design techniques.
5. I therefore find that the proposed development appropriately restricts off-site amenity impacts to the abutting residential properties.

1. I find that the changes that have been undertaken to the plans of the proposed development have appropriately responded to the criticisms outlined in the previous Tribunal decision. I also find that the proposal will present an appropriate development outcome for the site.
2. For the forgoing reasons, the decision of the Responsible Authority will be set aside. I will direct that a permit be issued.

The development of the land with seventeen dwellings and construction of a front fence greater than 1.5m in height in accordance with the endorsed plans.

1. Before the development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and three (3) copies provided, substantially in accordance with the advertised plans dated 8 July 2011 Plan Ref TP00-TP31 but modified to show:

1. Provision of an increased setback from the southern boundary of the site to the bedroom of Apartment 2.08 which is presently setback 3.21 metres, so that the setback is increased to 3.51 metres; 2. Greater variation in colour palette of the render and greater use of the feature timber cladding;

1. Provision of a more highly glazed elevation to the stairwell (southern elevation) in a manner that ensures that there will be no unreasonable overlooking of the adjoining property to the south;

1. Car space number 5 to be widened by 0.3m; 2. Pedestrian sight triangles provided on either side of the driveway, measuring a minimum of 2.5m (along the driveway) by 2.0m (along the property boundary) in accordance with Figure 3.3 of AS/NZS 2890.1:2004. A notation stating that no fence, vegetation or objects higher than 900mm can be installed within the sight triangle must be included; 3. Sight triangle provided on the southern side of the laneway. A notation stating that no fence greater than 1m height is allowed within 2.5m from the eastern property boundary must be included; 4. Material schedule to be updated to specify S1 horizontal wood composite or aluminium screen to have maximum 25% transparency; and to be fixed to a height of 1.7m above finished floor level. 5. Provision of a notation on the plans that the posts associated with the fence located between the private open space of Apartments 1.02 and 1.03 are dug by hand, to ensure that no roots associated with Tree 11 on the adjoining property to the south are affected; and, 6. Provision of a clothesline in each of the ground level courtyards, except that for Apartment 1.07. For Apartment 1.01 the clothesline should not be located forward of the front façade of the building.
2. The layout of the site and the size, level, 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.
3. A landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will form part of this permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must be generally in accordance with the Landscape Plan submitted 8 July 2011 prepared by CDA Design Group Pty Ltd but modified to show:

1. A survey (including botanical names) of all existing vegetation to be retained and/or removed; 2. Details of surface finishes of pathways and driveways;

1. A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, quantities of each plant and planting density;

1. Landscaping and planting within all open areas of the site; 2. Removal of the paving within the drainage easement; 3. Proposed vegetation with the drainage easement must have shallow roots; 4. Deletion of the Orange Lilypilly as an option for planting along the southern boundary of the subject site; 5. Provision of the four Capital Pears within the private open space of Apartment 1.02 as an advanced tree at least 5 metres in height at planting 6. Provision of the other Capital Pears as an advanced tree at least 3 metres in height at planting; 7. Details of the methods to be employed, including soil preparation and mulching, to ensure the successful planting of the advanced Capital Pears; and, 8. Details of the proposed irrigation system to the landscaping.
2. 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.
3. All landscaping works shown on the endorsed landscape plans must be maintained and any dead, diseased or damaged plant replaced, all to the satisfaction of the Responsible Authority.
4. All trees specified in the endorsed arborist report (Galbraith and Associates dated 28 April 2011) are to be protected and maintained in accordance with the recommendations set out in the report, to the satisfaction of the Responsible Authority.
5. Before any development (including demolition) starts on the land, a tree protection fence must be erected around the 'Tree Protection Zone' as detailed in the endorsed arborist report for tree Nos. 30, 32 and 35, and Trees 11 and 12 insofar as that Tree Protection Zone protrudes into the review site up to the location of the retaining wall on the southern side of the proposed development. The fence must be constructed as specified in the endorsed arborist report. The tree protection fence must remain in place until all construction is completed on the land, except with the prior written consent of the Responsible Authority.
6. The owner and occupier of the site must ensure that, prior to the commencement of building and works, all contractors and tradespersons operating on the site are advised of the status of trees to be retained as detailed in the endorsed arborist report and are advised of any obligations in relation to the protection of those trees.
7. All waste collection must be undertaken by private contractor in accordance with the Waste Management Plan (Leigh Design dated 30 June 2011) to the satisfaction of the Responsible Authority.
8. Collection of waste must be conducted so as not to cause any unreasonable disturbance to nearby residential properties and may only take place during the following times:

1. Monday to Friday: 7.00 am to 10.00 pm 2. Saturday & Public Holidays: 9.00 am to 10.00 pm

1. The land must be drained to the satisfaction of the Responsible Authority and all drainage works must be completed prior to the occupation of the building.
2. Stormwater drains must be connected to a legal point of discharge approved by the Responsible Authority. Drainage connections within a road reserve must be to Council's standards. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.
3. Any new vehicle crossover or modification to an existing vehicle crossover, must be constructed in accordance with Council's standard details. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.
4. This permit will expire if:
   1. The development does not start within two (2) years of the issue date of this permit; or
   2. The development is not completed within four (4) years of the issue date of this permit.

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

[1] This is the land description provided in the previous Tribunal decision of Lemasen Pty Ltd v Boroondara CC [2011] VCAT 280

[2] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[3] Lemasen Pty Ltd v Boroondara CC [2011] VCAT 280

[4] Asolo Developments Pty Ltd v Boroondara CC [2012] VCAT 203.

[5] [2011] VCAT 925.

[6] Such as granting a permit subject to conditions or issuing an interim decision requiring an amended proposal.

[10] [2010] VCAT 1862

[12] Paragraph 47, third dot point of the decision.

[13] [2011] VCAT 2309