Lend Lease Apartments (Armadale) Pty Ltd v Stonnington CC [2012] VCAT 906

Lend Lease Apartments (Armadale) Pty Ltd v Stonnington CC [2012] VCAT 906 | Case summary | Zoe

[38]

The proposal contains a total of nineteen buildings (labelled Buildings A to S) ranging in size between two and twelve storeys. The buildings are located in four separate precincts. The buildings contain 466 dwellings, comprising 448 apartments (in sixteen buildings) and eighteen townhouses (in three buildings).
There are eleven apartment buildings of four to twelve storeys that each have a square floorplate with about 21 m sides. All but three of these buildings are connected on at least one side by five other apartment buildings of four to six storeys.
Eight of the apartment buildings are aligned with one side facing north. Having regard to the north-west to south-east alignment of the railway (and hence the east boundary of the land), four of those buildings (Buildings F, G, I and K) present as rotated so that a corner faces the railway reserve. The five buildings adjoining Toorak Park are on a different alignment so that they have one side facing south-west to Toorak Park.
An internal no-through road (called the 'boulevard') extends eastwards from Orrong Road. As it descends relative to grade it gives access to two basement car parks for all the apartments. It then reaches a turning circle in an open area called the plaza, after descending overall about five metres. The plaza level is about the same level as the station entrance. The boulevard and plaza therefore provide a new pedestrian access to, and commuter drop off access to, the station. Between the plaza and the station entrance is an open space which we call the 'station forecourt'.
The basements include 681 car spaces.
The apartments vary in size. There are 154 one bedroom (or one bedroom plus study), 237 two-bedroom and 57 three-bedroom apartments.
There are three townhouse buildings of two to three storeys in the Osment precinct in the south-east corner of the land.
One of the townhouse buildings fronts Osment Street and contains four two-storey townhouses with double garages from Osment Street. One fronts the pedestrian path and contains seven three-storey townhouses with tandem garages from an internal triangle-shaped drive in a shared zone (called the 'Osment triangle') off the right-angled intersection of Osment Street and Ashleigh Street. One fronts Victory Square reserve and contains seven three-storey townhouses also with double garages from the Osment triangle.
The proposal includes a convenience shop (165 sq m), café (195 sq m) and maternal health centre (157 sq m) at the plaza. It also includes ancillary facilities for residents such as a pool, gym and multi-purpose rooms. There is also commuter parking for 74 bicycles in the station forecourt.
There is one main open space area, called the 'central green'. It is about 110 m long and up to 35 m wide and generally located between the buildings abutting the rail reserve and Toorak Park. It will be publicly accessible open space and will provide an alternative pedestrian route between Osment Street and the station. There are a variety of other smaller spaces. They include a 'west village green' adjoining the path near Orrong Road and an 'east village green' adjoining the rail reserve south of the station forecourt. There is also a path along the Toorak Park interface that connects to the boulevard.
The apartments have either a ground level private open space or a balcony. Twenty apartments have large roof terraces. The townhouses have ground level private open space and balconies.

[39]

In this section of the reasons, we refer briefly to the natural or physical context and to the land's opportunities and constraints for development. We refer to the policy or strategic context in the following section.
Development in the broader surrounding area is predominantly residential, comprising mainly one and two-storey attached and detached Victorian and Edwardian era dwellings with relatively small setbacks. Some dwellings have on-site car parking. Mature street trees are an important feature and add to neighbourhood amenity. There are some infill apartment buildings of three to four storeys from various eras. There are two apartment buildings of eight and ten storeys to the west of the subject land in Sydney Street near Orrong Road.
The immediate physical context of the land is, however, very different. There are no residential abuttals, in the strict sense. The subject land has a perimeter of 823 m, comprising 69 m to Orrong Road, 127 m to a pedestrian path between Orrong Road and the station, 282 m to the railway reserve, 62 m to Osment Street, and 282 m to parkland (Toorak Park and Victory Square). Hence, all of the perimeter abuts public land used for roads, paths, rail and parks. Nearly 70 percent of the perimeter abuts railway land and parkland.
The land is developed for a substantial office building, constructed in 1959. It is about 160 m long and generally has five storeys but with a seven storey central projection. There is extensive surface car parking for about 300 cars. There are other mainly single-storey buildings associated with a former municipal works depot off Osment Street.
The nearby physical context includes -
- To the north, a single storey dwelling and a east-west line of two-storey terrace dwellings on the south boundary of a complex known as Tillotson Terrace on the north side of the abutting 2 m wide pedestrian path.
- To the south-east, on the south side of Osment Street, four single and double-storey dwellings.
- To the north-east, the sunken rail line and station. The station roof projects slightly above the cutting embankment. There is a path along the rail line between Osment Street and the station. The station is accessed via both the rear and north path.
- On the north-east side of the station is Beatty Avenue, consisting of a small strip centre and some one and two-storey dwellings. The Armadale primary school is further to the east of Beatty Avenue.
The following factors give rise to the main opportunities for development -
- It is a large site (about 2.5 ha) that is only 6 km from the Melbourne CBD.
- It has a generous (about 69 m) main road frontage to Orrong Road.
- It has excellent access to public transport. As well as access to trains to on the Frankston and Dandenong/Cranbourne lines, Orrong Road is a priority bus route, and tram services are nearby on both Malvern Road and High Street.
- It abuts the entrance to the station and a path along the rail reserve over about 280 m along its north-eastern boundary.
- It has limited residential interfaces (as referred to, above).
- It is in an area relatively rich in public open space for Stonnington and Armadale, in particular. It abuts Toorak Park and Victory Square on its south boundary. On the west side of Orrong Road is the Orrong Romanis reserve.
- It is near the small Beatty Avenue activity centre and is within walking distance of the much larger Malvern activity centre on High Street.
- The existing tired buildings and inefficient use of the land.
The main constraints for development are -
- The mainly one and two-storey residential development in the broader surrounding area to the north, east and south.
- Nearby heritage precincts to the east and south.
- The unusual shape of the land, angling to the south-east with a diminishing width.
- Interface issues to a limited number of dwellings to the north and south-east, the railway to the north-east, and the parks to the south.

[47]

The proposal responds satisfactorily to infrastructure policy.[11]
In relation to health infrastructure, the maternal health centre would enable the Council to close a similar nearby centre and reuse the facility for other purposes.
In relation to education infrastructure, Ms Davies, on behalf of the Armadale Primary School Parents and Friends Association, opposes the proposal because the school does not have capacity for additional students. The school is constrained by a small site and heritage buildings. Students currently walk across the station, past the subject land, cross Orrong Road at the pedestrian lights and exercise at Orrong Romanis reserve.
While we appreciate the school's difficulties, the Government will need to increase capacity in the zone if and when demand increases. The proposal should not be refused based on perceived current difficulties in meeting future demand. Some parties estimated that 50 students could be living on the subject land in about ten years and seeking enrolment. It appears that even if the proposal does not proceed, the trend is for continuing enrolment increases, in part due to demographic changes and other housing projects in the school's zone.
Neither the school nor the Education Department has opposed the proposal on education facility grounds. Although there may be inconvenience for students walking to Orrong Romanis reserve during construction, the students will ultimately benefit from a safer and pleasanter walk along the south side of the boulevard and to a new pedestrian crossing near Sydney Street.
In relation to pre-school facilities, Ms Neyland reported long waiting lists for child care and kindergartens. Again, private and public providers will need to meet any additional demand created by the proposal and any current shortage is not a proper reason to refuse a permit.
To complete our consideration of State policy, we now wish to say something about neighbourhood character policy and activity centre policy.
The Council and many residents submitted the proposal failed to respond to neighbourhood character policy. They argued it did not 'reinforce special characteristics of [the] local environment and place' because it did not '[emphasise] ... the built form that reflect[s] community identity [and] the values, needs and aspirations of the community'.[12] They relied on the broad resident opposition to the proposal (about 600 objections to the Council and about 100 statements of grounds in this proceeding) and the Council's unanimous refusal.[13]
We are exercising an administrative review power. It must be exercised in accordance with law. We must not have regard to irrelevant considerations. The extent of resident opposition per se is one of these.[14]
The neighbourhood character policy also seeks to ensure development 'responds to its context'. We take this to be the natural, cultural and strategic context.[15] We have already identified the context and we consider the proposal does, in broad terms, respond to that context.
Values, needs and aspirations of the community are difficult concepts and this is not the occasion for a deep analysis. As with all policy, it must not be read as a statute but applied flexibly and in the broader policy context.
'Community' does not expressly refer to 'local community' and it does not follow that the policy only applies to local community. The wider community is not excluded from the policy. Indeed, State policy requires us to integrate policies in favour of 'net community benefit' which, at State level, must mean something broader than the local community. The opposition per se to the grant of a permit is not an expression of 'values or needs'. We would hesitate to characterise the residents' objections as an expression of the aspirations of the local community.[16] Nonetheless, we must carefully consider and give weight to objections and we have done that.
The Council tendered a document prepared by its community consultation consultants in July 2011 about development of the subject land. It states the Council invited residents, by letter box drop in an unspecified area, to consultation sessions to express their 'ideas and concerns'. About 100 residents attended six sessions. Residents were asked to generate 'principles, values, concerns, paradigms and guidelines' to inform the preparation of an urban design framework for the land.
We make two brief observations about the document. First, we doubt any aspirations expressed by only 100 residents could be said to representative of the community, even the immediate local community. Second, it confirms divergent views on perhaps the most contentious issue, being building height and scale. It states residents expressed a range of aspirations for buildings of between two and fifteen storeys, with a 'majority' in the five to ten storey range.
In September 2011, the Council sent 13,000 residents (in an unspecified area) a copy of a draft of an urban design framework for the land that it had prepared and they were invited to respond to a survey. There were 120 responses from residents of 'Armadale, Prahran and Toorak'. Reports to the Council indicated that there continued to be a range of community views. Specifically, those reports state that fewer than 25% of respondents stated the draft framework reflected their 'ambitions' for the subject land.
The Council is best placed to express values, needs and aspirations on behalf of its community. We have, of course, carefully considered the Council's refusal and its submissions in this proceeding. The structure of the scheme is that Council may identify relevant values, needs and aspirations in local policies and provisions. It is relevant that Council's vision statement identifies the land as a redevelopment opportunity and has included an urban design policy (to which we will refer shortly) and has not included a preferred built form outcome for the land.
It is also relevant to place the State provision in context. The policy specifically provides that '[p]lanning should achieve high quality urban design and architecture that ... [r]eflects the particular characteristics, aspirations and cultural identity of the community'. The policy does not expressly refer to 'local' community. Various objectives then identify the aim of that policy, one of which is 'to recognise and protect cultural identity, neighbourhood character and sense of place'. The 'values, needs and aspirations' provision is an implementation strategy. It is not the policy itself. In our view, community aspirations cannot be established by objections per se, even if there are many of them. Rather, if an objector wishes to establish how a particular design fails to reflect community aspirations, he or she must identify a particular community aspiration and explain how the design fails to reflect it.
The Council also asked us to give weight to activity centre policy that applies a context and character restraint to higher density residential development in a neighbourhood activity centre.[17] This restraint does not apply to a major or principal activity centre.
Activity centre policy is not central to this proceeding. Beatty Avenue is a lower order neighbourhood activity centre.[18] Nothing in the scheme, including the strategic framework plan, identifies the land as part of the neighbourhood activity centre. Although the land is partly zoned B5Z, it has never functioned or was intended to function as part of the neighbourhood activity centre. It is separated by a rail reserve about 50 m wide. Mr Milner accepted that proximity to the Beatty Avenue neighbourhood activity centre supports greater intensity on the subject land, but not the same intensity as if in a major activity centre. In this proceeding, we conclude that SRS policy is more relevant than activity centre policy.

[51]

Although it is also part of the same policy to maintain the character of the area,[23] the large sites policy is an exception to that policy and therefore does not use the language of 'maintain'. A change to character is contemplated by the large sites policy.
We will now examine each of the three dot point qualifications. We will refer to various nuances in their meaning but emphasise that the first dot point refers to 'character of the area' and the second dot point refers to 'built form character of the surrounding area'. We therefore infer that the draftsperson did not intend that character in the first dot point embrace built form character.
The first qualification of the large sites policy encourages 'consistency' with the 'role and character of the area'.[24] We adopt the approach of the Tribunal in Rowcliffe Pty Ltd v Stonnington CC[25] in finding that residential development (albeit in this case with minor supporting commercial use such as a café) is consistent with the residential and minor commercial (ie the Beatty Avenue centre) character of the area on the opposite sides of Orrong Road and the railway.
The second dot point qualification encourages a design that reflects and complements the built form character of the surrounding area. The meanings of 'reflect' and 'complement' were extensively canvassed at the hearing, with recourse to dictionary meanings. In the context of applying policy rather than statute, we adopt what was stated in Rowcliffe that reflect and complement do not mean replicate and contemporary architecture is not precluded.[26]
As well, and as acknowledged by Mr Czarny, Mr O'Dwyer, Mr McGurn and Mr Biacsi (but not Mr Milner), a large site may create its own character provided it respects and responds to surrounding character. In this case, the land is up to five times the size of the threshold for the large sites policy and therefore a new character is more likely.
The Council and residents invited us to accept that, although residential development in the immediate vicinity of the land was one and two-storey built form, the existing largely five-storey office building on the land defined the built form character of the surrounding area. They submitted that only a development with a five-storey maximum height would reflect and complement that character. In doing so, they fall into the error of adopting replication, in the sense of replicating existing development of the land and not surrounding development.
We also adopt the view expressed in Rowcliffe that built form character comprises a broad range of factors, and not just building height or scale.[27] There are two meanings of 'complement' in dictionaries. In general terms, one is to add so as improve or emphasise existing features and the other is to add so as to complete. In a built form assessment when other policies encourage significant change, we find neither particularly helpful and this confirms standard interpretation techniques can be unhelpful in a policy context.
The proposal largely creates a new built form character that respects the character of the surrounding area. It is quality architecture with quality and varied finishes (to which we will refer later in these reasons). It improves public access through the land to the station, to the three nearby parks, and to nearby activity centres. Residents of the surrounding area will be able to relax over a coffee in or outside the café or with a book in more than one of the open spaces.
The Council and many residents asked us to adopt what they submitted was the conclusion in RTS Technologies Pty Ltd v Stonnington CC[28] that a five-storey contemporary building in Beatty Avenue would not respond to the distinctive heritage character of the Beatty Avenue precinct. This case must be distinguished because it concerned the heritage impact of a proposal in that heritage area. We explore heritage issues later in these reasons.
The third dot point qualification encourages a scaling down of development to integrate with the abutting residential properties. We agree with the view expressed in Rowcliffe that to 'integrate with' is also synonymous with to 'respect'.[29] As the policy relates to higher scale development, the provision contemplates an outcome of higher built form at the interfaces provided it respects abutting properties. Abutting land in its ordinary usage means land that touches the subject land. We doubt this strict approach was intended because land that is very close but does not touch would be excluded. This makes little sense with larger sites. We consider 'nearby' land in a close and interface sense better captures what was intended.
The nearby residential properties are therefore -
- The single-storey dwelling at 608 Orrong Road located on the north side of path along the north boundary of the land.
- The line of terraces on the south-east boundary of Tillotson Terrace on the north side of the path but further to the east.
- The four north-facing one and two-storey dwellings located in Osment Street, separated from the land by the street itself.
Mr Milner's opinion was that the dwellings in Beatty Avenue, south-east of Rose Street, were abutting properties. We disagree with him and consider they are not 'nearby' in a close and interface sense for the purposes of this policy. They are about 50 m away and separated by the railway lines. The railway lines are a wider and stronger barrier than either the path or Osment Street.
The proposal adequately scales down to the Orrong Road dwellings because the six-storey section of Building B is scaled down to the four storeys of Building A near that dwelling. Building A is setback between 6 m and 8 m from the nearest point of the dwelling's land, is on the south side of the dwelling, and does not impact on the dwelling's rear yard. It is also relevant that the dwelling (and its neighbour) is in the B5Z and may be redeveloped for non-residential use.
The proposal adequately scales down to the line of terraces because the building facing those terraces (Building E) has five storeys (but with the fifth storey setback) and is setback 7 m from the boundary of the subject land. It is also setback 9 m from the nearest point of those terrace's small rear yards and between 13 m and 16 m from the nearest south-facing wall of the terraces. Building E is also on the south-east side of the terraces. The terraces are oriented to the north-west (with their front doors and front yards) and away from Building E. Although the Council's submissions were that there was inadequate scaling down, its urban design framework (to which we will shortly refer) supports a five-storey building set back 6 m from the boundary of the subject land.
Building E is connected to and is between the nine storeys of Buildings D and F. Buildings D and F are rotated relative to the terraces so that a building corner (and not a side) faces the terraces. This has the effect of increasing the setback along the sides so that the next corners of the building (to the east and south) are setback over 20 m.[30] The west face of Building F and the north face of Building D are on the oblique between 12 m and 35 m from the nearest terrace rear yard.
The proposal adequately scales down to the nearby single and double-storey dwellings in Osment Street because Buildings S, facing Osment Street, contains the two-storey townhouses. Buildings R and Q, adjoining Victory Square and the railway (respectively) and not Osment Street, contain the three-storey townhouses.
There are other relevant local policies in the scheme, other than the large sites policy. We have considered those policies, but not addressed them in these reasons. In summary, the most relevant local policy is the large sites policy. The proposal adequately responds to local policy.

[52]

The Council has adopted a policy relevant to the proposal. It is not included in or referred to in the scheme. It nonetheless warrants consideration under section 60 of the Planning and Environment Act 1987. We have decided to give that policy little weight.
In July 2011, and before the Applicants filed the permit application, the Council began preparing an urban design framework (UDF) to guide the Council's preferred development of the land. The Council resolved to do so after refusing an earlier request by the Applicants to prepare an amendment to the scheme to facilitate an earlier version of the proposal.
The Council engaged Mr Czarny's firm to guide its preparation. As previously stated, the Council also conducted six sessions with about 100 residents to 'express their ideas and concerns' about development of the subject land to inform the UDF.
In November 2011, while it was considering the permit application, the Council formally adopted the UDF. It included some key changes to the draft UDF recommended by Mr Czarny. Some features were unchanged, such as the proposed locations of about twelve buildings (five in podium form) with taller forms more centrally located, the streets, and the broad public open space extending from Toorak Park to the station. However, two key changes were made. First, the six taller buildings were stated to have a maximum height of 17 m (or about five storeys). Second, a cap of 250 dwellings was included.
We have given this policy little weight for a number of reasons. Neither Mr Czarny nor the Council's officers recommended the two later changes. The Council's independent urban design expert, Mr O'Dwyer, also did not support the changes. Mr Czarny conceded as 'ambitious' the large area of proposed public open space between Toorak Park and the station.[31] The Council's submissions opposed some features in the proposal that are consistent with the UDF outcomes, indicating that its commitment to the UDF was not resolute. We are left with doubts the UDF can withstand detailed scrutiny.

[55]

When it adopted the UDF in November 2011, the Council also resolved to prepare Amendment C153 to incorporate the adopted UDF in permanent planning controls and to seek the Minister's authorisation to prepare and give notice of the amendment. On 23 May 2012, the Minister granted that authorisation. Exhibition started on 7 June 2012.
C153 includes the subject land in Development Plan Overlay Schedule 2. The effect of the overlay is to entrench the UDF. It requires the preparation of a UDF-based development plan, including a 17 m maximum building height and no more than 250 dwellings. It requires any permit granted to be generally in accordance with either the UDF (if granted before the development plan is approved) or the approved development plan. The proposal would therefore be prohibited, if C153 were approved.
C153 has not reached a stage at which we should give it weight as a seriously entertained planning proposal. Nonetheless, in deciding what weight to give C153, we have considered a number of factors.
C153 is underpinned by an adopted policy, the UDF. The UDF was also prepared with expert advice and after significant public consultation. These factors operate to give C153 somewhat more weight.
However, there are other factors that lead us to conclude that C153 should be given little weight.
We have already explained that the C153 provisions for maximum building heights and number of dwellings were later changes not recommended by either Mr Czarny, the Council's officers or the Council's expert witnesses.
On behalf of the Council, it was submitted that the changes were based on 'sound principles and logic' related to the scale of existing buildings, social infrastructure capacity and a 'sense of place'. It was also submitted that it would result in a density of 100 dwellings per hectare which was 'not atypical' for apartments. These submissions were not explained or justified. The reasoning also ignores the underlying issue that, prima facie, a SRS does not warrant a typical approach.
C153 also contains a requirement that vehicle access to the land from Orrong Road be provided in a new single access at the south end of the Orrong Road frontage.[32] The Council has already disregarded this requirement in refusing to grant a permit for the proposal on the grounds there should be a single access at the north end. If the Council has changed its mind, after seeking expert traffic advice, it should not have proceeded with C153 in this form. The result is a rushed and uncertain proposed amendment.

[58]

The Council and many residents submitted, in summary -
- The layout of the proposal, in its streets, open spaces and buildings, established a new character, one unrelated to the surrounding area.
- The height of many buildings was excessive and would dominate their surroundings.
- The slightly oblique alignment of Buildings A and B to Orrong Road and the dominant character of the garages to the townhouses in Building S were discordant elements.
We have concluded that both the general and specific design aspects of the proposal are acceptable.
Earlier in these reasons, we concluded that it is acceptable that the proposal not emulate either the layout or scale of buildings in the broader surrounding area. We now consider the specific merits of the proposal.
The built form comprises eleven square-floorplate buildings with 21 m long sides between four and twelve storeys. Several of these buildings are joined by five rectangular-floorplate infill buildings of four or five storeys. At the south-eastern end of the land is a cluster of three rows of terraced dwellings. The most easterly of these contains four two-storey dwellings and the two others each contain seven three-storey dwellings.
The overall pattern of taller buildings is as follows. They are lower adjoining Orrong Road (four storeys to the north and six storeys adjoining to the south), then rise to nine and twelve storeys on either side of the station forecourt, and then descend to nine storeys adjoining the eastern terraced dwellings. The three taller buildings along Toorak Park are mid-height (ie seven storeys) with four-storey infills.
The Council's UDF is based on a grid-type street layout that is, according to Mr Czarny, intended to reflect the traditional, orthogonal street pattern of surrounding land, with taller buildings to eight storeys within four to five-storey podiums. The layout involves cars travelling on surface roads to the furthest south-east corner of the site. In contrast, Mr McGauran extolled the proposed layout as an embodiment of the principles of transport-oriented development,[34] with higher-density housing focussed on a public transport node, limitation of car movements within the site, separation of car and pedestrian movements and pathways oriented toward the railway station and community services.
The transport-oriented development principles have much to commend in strategic terms of urban consolidation and a re-orientation of transport preferences away from cars and towards public transport. We find that the proposal demonstrates, although on a smaller scale than most overseas examples, the way that these principles should be applied.
The visual effect of the heights and clustering of proposed buildings, as viewed from external points, is of development that is more urban than suburban in character. This would also be the external visual effect of development that accorded with either the Council's UDF or C153, notwithstanding that they both would have some lower building heights.
The principal visual impact of the proposal will be from across Orrong Romanis Reserve, from Orrong Road (north and south), from the south-western corner of Toorak Park and from Beatty Avenue. In other views the built form tends to be either partially screened by a combination of trees or nearer buildings or substantially diminished by distance.
We find that the views across parkland are acceptable. The buildings will introduce a new and more visible form but would otherwise not be overbearing or otherwise unreasonable. Given the status of the subject land as a large redevelopment site for higher scale development, it is appropriate that the presence of buildings near Orrong Road should be highlighted.
The greatest visual impact will be as seen from the north-eastern side of Beatty Avenue from where the tallest building (Building F) will stand about 40 metres above, and about 60 metres away, from an observer. Again, while we acknowledge that the proposal's visual presence will be much greater than the existing building (which, even at five storeys height, is well set back), we find that this is acceptable when balanced against the proposal's major contribution to State policies and the extent of its compliance with local policies.
The Council and residents were concerned about the lack of alignment of Buildings A and B with Orrong Road. Those buildings are about six degrees away from Orrong Road's alignment.
We could find no report, including in the permit application material, that explained the reason for these buildings' alignment. The Council's planners, in their review of the amended design, simply recommended without further explanation 'these buildings should be aligned parallel to Orrong Road'.[35] The Council submitted that the misalignment was at odds with the orientation of local streets and thereby out of character.
In Mr McGauran's opinion, the misalignment reflected the progressive setback of the terrace dwellings to the north of the subject land. However, we doubt that any casual observer would be aware of this feature.
On the other hand, because the proposal will make a significant and unique impact on its locality, the slightly different alignment of Buildings A and B, to the extent that it may be noticeable to the passerby, would give a slight emphasis to that uniqueness. If a development is designed to reflect the characteristics of its neighbours, the misalignment would be idiosyncratic and unjustified. But that is not the case here.
The Council also submitted that the Orrong Road setback, varying between 4 m and 8.3 m and with the basement level extending under much of this, is unsuitable for planting of any useful scale. The Council's UDF provides for a 6 m setback along Orrong Road, which is equivalent to the average of the proposal's setback. The proposed hedging along Orrong Road will provide a useful contrast. Given the presence nearby of three immature Plane trees in the footpath, we would neither expect residents to plant any substantial vegetation nor place any great value on it, if they did, even with a constant 6 m frontage setback.

[60]

Leaving this issue aside, a tower-over-podium form would create a particular design difficulty. For podiums of the dimensions illustrated in the Council's UDF, there would be excessive building depths at some points within the towers' footprints and behind the podiums. Devices such as light courts would be required and this would be a compromised solution.
In Mr O'Dwyer's opinion, there is an absence of adequate views between the taller buildings. This again reflects an alternative approach based on towers-in-the-park and, in our view, reflects more a stylistic urban-form preference than an objective urban-form assessment. While some may prefer the aesthetic of towers-in-the-park (or towers-over-podiums), we find the urban form of this proposal acceptable.
The four two-storey townhouses in Building S, which abut Osment Street, have front doors and double garages facing onto Osment Street. These dwellings will also have a small garden to the north and, through it, secondary access to the Osment triangle. These dwellings' façades to Osment Street have been cleverly designed to avoid the traditional appearance of garage doors. Mr Lovell stated that the northern side of Osment Street, having previously been a municipal depot, would always have had a different and non-residential character from the southern side. Some difference between northern and southern side therefore has some historical relevance.
The Council and the residents to the east in Osment Street were opposed to the lack of setback and orientation of garages. They submitted that the four dwellings should be set back to provide planting on the subject land and that the garages should be reoriented to gain access from the Osment triangle.
We have already stated that the two-storey scale of these dwellings is appropriate to their immediate context. Their front doors will 'address' Osment Street and their character, being more that of mews housing, would make an appropriate transition to the proposal's more urban form to the north-west. They appropriately fit between the higher density to the north-west and the existing housing to their south.
The Council and the residents submitted that the pedestrian path around the northern perimeter of the subject land was unresolved and had an unpleasant character. This path separates the land from the dwellings fronting Orrong Road and Tillotson Terrace (to the north) and from the railway reserve and connects to Osment Street (to the east). It provides pedestrian access from Orrong Road, Tillotson Terrace and Osment Street to the railway footbridge. It is narrow, poorly lit, has a number of blind corners end and is mostly screened on at least one side by opaque fencing. There was wide acceptance that it is, or at least appears, unsafe.
The proposal does not incorporate or modify this path, other than to adjust its ramps down to the station footbridge's level, this being necessary to accommodate the station forecourt's direct connection to the station footbridge. The Council has not supported any proposal to incorporate the pathway into the proposal or to otherwise abandon it.
If this proposal proceeds, the usefulness of the northern path will decline greatly, as more attractive public routes will be provided from Orrong Road and Osment Street to the station, leaving only the benefit of the connection between Tillotson Terrace and the station.
Mr McGauran supported, and we agree, that if this path or any part of it remains, buildings on the subject land should be arranged to provide it with greater oversight. This will also require the height of some boundary fences to be reduced. As the proposal indicates extensive use of high fencing along this path, we will require by permit condition that some sections of this be appropriately reduced in height, for the same purpose. Mr McGauran also recommended that a secure access be provided between this path and the village greens that abut it. However, as this would require the agreement of VicTrack (on whose land the relevant sections of pathway are situated), we leave this as an obvious improvement that would have to be negotiated later between the relevant parties.
We hope that if this proposal proceeds, the Council can obtain a legally guaranteed public right of way for pedestrians to access the station along better alternative routes within the land. We then hope that the Council would be prepared to abandon much of this unattractive and potentially-unsafe path.

[61]

The Council and residents submitted that the proposed architecture and materials (the apartment buildings' shape, detailing and finishes) are unsuitable in their suburban residential context, having the character of an office park rather than blocks of apartments. There were no objections to the architecture of the townhouses.
We have concluded that all of these aspects of the proposal are acceptable.
The complex of buildings is based on an arrangement dominated by eleven simple, square (about 21 metres to a side), effectively flat-roofed taller buildings that vary in height from seven to twelve storeys. In some cases, lower blocks of apartments of four to six storeys close the gaps between the taller buildings. There are also, of course, the eighteen two and three-storey townhouses at the eastern end of the site. The apartments in both the taller buildings and infill blocks are to have windows and solid panels finished to a sheer surface. Glass-faced balconies are to be set back from the sheer surface, rather than projecting beyond it.
The proposed architecture of the taller buildings and infill blocks use three alternative but related patterns based on a rectangular metal grid with different infill material, and three related palettes of materials and colours: light metal, timber and white. The complex of buildings is organised into three groups, with each group using one palette of materials and colours and, within that palette, each building using the three available patterns on its different elevations. The effect, as Mr Denton and Mr McGauran explained, is intended to achieve an overall coherence and, within that coherence, a subtle but consistent variety. The application plans demonstrate how these three palettes of materials and three patterns within each are to be applied across all elevations of all taller buildings.
The Council, Mr O'Dwyer, Mr Czarny and many residents objected to a number of aspects of the architecture and building form. They submitted the buildings look more like office blocks than recognisable high-rise residential apartments. They also submitted the architecture is bland and bears no relationship to its context (ie the buildings would be equally placed anywhere or are better suited to other places including, for example, an office park or Dubai).
Mr Czarny considered the uniformity of the apartment buildings would create a visual monotony and sought 'a variety of complementary forms including capping elements, level setbacks, textural effects and modulation', though he did not object to their contemporary style and the use of simple geometric forms. Mr O'Dwyer illustrated his points by referring us to two Harry Seidler-designed, free-standing towers of apartments in Sydney,[37] together with the 'iconic towers of Tokyo's Omotesando dore district'. Mr Morris referred us to the more varied architectural expression of the approved (not yet constructed) apartment complex on the Honeywell site in Victoria Street, Richmond, with its strongly horizontal patterns of balconies, with the three buildings within this complex being differentiated by variations within this pattern of balconies.
Mr McGauran praised the proposed architecture as being 'refined, understated and timeless' and concluded that it 'adopts the typologies and scales already found in the immediate neighbourhood ...'.
Having reviewed the architectural details of the proposal, we accept the first part of Mr McGauran's statement but the second part can only be accepted very broadly. It appears to refer to two taller apartment buildings of earlier date and markedly different style in Sydney Street or other, more modern but lower height apartments elsewhere to the west of Orrong Road. The differences between these examples and this proposal appear to us to be as great as, or greater than, their similarities. Nevertheless, accepting the first point, the question still remains whether it is appropriate to establish a complex of buildings of such 'refined, understated and timeless character' in this neighbourhood?
While the Applicants could have adopted many alternative architectural styles for this proposal and many of these might possibly be more acceptable to the community and the Council's experts, we must deal with the one before us.
Firstly, we consider it unrealistic to expect apartments of any reasonable scale to reflect the materials and architectural characteristics of late nineteenth and early twentieth century housing, except in the most oblique manner.
Any development as extensive as allowed over such a large site, even if limited to the five storeys that the Council prefers, could not feasibly be expected to reflect the architectural characteristics of the nearby residential heritage areas. The word complement, even adopting Mr Morris' preferred alternative, is equally unhelpful (as we have already stated). Clearly, the Council might like to interpret this policy as requiring new development to be in some undefined way not very different from the buildings in the broader surrounding area.
However, in terms of architectural style and detail, this requirement again contradicts any reasonable form of development that might occur, even if again limited to five storeys, over such a large site. For example, the question of whether anything is an improvement is always debatable, depending on one's initial premises. It is also debatable whether a particular quality of an object is better emphasised by contrasting it with, or imitating it by, a nearby object.
The most that might be hoped is that new apartments should reflect any stylistic conventions for apartment design that either can be found nearby or are widely recognisable because of their historic familiarity.
Secondly, the experts' and residents' references to a, presumably objective, architectural style that identifies apartment buildings seem to be referring to historic examples that, in their turn were originally often novel and controversial. We do not see anything immutable about architectural styles or any reason why they should not be allowed to evolve. New building technologies develop and these often support new stylistic developments. Architectural styles that were, in their day, innovative become overly and insensitively copied and inevitably new styles emerge. We have examples of architectural change over the last 60 years that amply illustrate this process.[38]
In terms of the development of architecture and apartment buildings, we now have numerous examples of apartment architecture that more closely reflects the past architecture of offices. These include Eureka Tower, Southbank, Aerial (almost complete) at Camberwell Junction, the Camberwell Railway Station apartments (not yet commenced), the Yve Apartments, St Kilda Road and the six-storey apartments at the corner of Toorak and Camberwell Roads, Hartwell.
We accept that the proposed architecture of the apartment buildings is innovative in this setting and will provide a substantial contrast with the nearby heritage areas. We consider that such a contrast is acceptable. We also accept Mr McGauran's opinion that the use of the proposed, reasonably fine-grain, pattern of the elevations and the balconies expressed as inset voids (the glass balustrades would help emphasis this) will clearly differentiate the towers from conventional office blocks.
We have been impressed by the demonstrated level and quality of architectural detailing that has been applied to all elevations, with its section/perspective of an external wall, showing the detailing of floor slabs, cladding and windows.[39]
We therefore conclude that, notwithstanding their innovative architecture, the form and style of the proposed apartments is acceptable. However, given the importance we place on this quality, we will include a condition that requires the submission of a 'statement of design intent' that confirms and elaborates these and other important details of the proposal's finishes and detailing. Our intention is that the Applicants are to be effectively bound to provide the same in the finished development. This will, of course, require a commensurate level of care by the Council in considering approval of the statement.

[65]

Several residents similarly held the view that, because of its highly contrasting scale, the proposed development would substantially diminish the heritage values of these two heritage places.
There are two aspects to the policy. One seeks to conserve the existing values of a heritage place. The second seeks to maintain a compatible context or setting for a heritage place. The first relates to the purposes of the heritage overlay. The second, except perhaps for exceptional circumstances,[42] does not relate to the purposes of the heritage overlay[43] and therefore must be treated as being related to the protection of a particular quality of neighbourhood character.
The statement of significance for the New Street Precinct identifies its aesthetic, architectural and historic significance. The critical aspects of this significance is, in summary, the precinct's largely intact representation of a 'late nineteenth and early twentieth century' suburban residential area. Although the Armadale Precinct's statement of significance was drafted in 2007 and uses a more archaic format, we feel that we can usefully paraphrase it in a similar vein but with the additional statement that it includes an important representation of an Edwardian station building, together with an associated local shopping centre of the same era.[44]
Mr Lovell's opinion was, in its essence, that the proposed change to the nearby context of the two heritage places would not affect their ability to reflect their particular heritage values because these values are entirely contained within the precinct boundaries and are unrelated to their wider context. We accept Mr Lovell's opinion.
From one point of view and in respect to these two heritage precincts, increasing the contrast between them and their surroundings would actually highlight more clearly their heritage values by increasing the difference between the built form representing these values and their surroundings. This is an attribute of the two precincts that is entirely unrelated to their setting.
We distinguish this case from the example referred to by Mr Morris that involved a proposed multi-storey mixed-use development at 312-332 St Kilda Road, opposite the Shrine. That site was not included in any heritage overlay while the Shrine and its surrounding land were included. The Ministerial panel considering that development concluded that the special values of the Shrine included its identification as having the qualities of a sacred place and that, in part, these qualities importantly included its elevated position against the skyline, as seen from most points viewpoints. The panel found, and the Minister accepted, that the development would cause substantial detriment to this particular attribute of the Shrine and should not be allowed to proceed.

[66]

The boulevard to the two basement car parks and to the station drop off and pick up point at the plaza connects to Orrong Road at the south end of the Orrong Road frontage, diagonally opposite the intersection with Sydney Street (the southern access).
The proposal included -
- Traffic signals at the southern access for the intersection of the boulevard, Orrong Road and Sydney Street. It is proposed to use a five-phase signal cycle to allow all movements to and from every leg of the intersection.
- One entry lane plus two exit lanes at the southern access plus footpaths on both the north and south sides.
- Removing the existing signalised pedestrian crossing located opposite the path to the station along the northern boundary of the land.
The southern access point and the signalised intersection were further developed in a concept plan prepared by Mr Kiriakidis and relied upon by the Applicants and identified as Option A2 dated 5 April 2012.[45]
Orrong Road is in a Road Zone Category 1 under the scheme and is a bus priority route. VicRoads is the road management authority for Orrong Road. Both Malvern Road (to the north) and High Street (to the south) are tram priority routes. The Council is the road management authority for Sydney Street.
A permit is required under the scheme to establish the new southern access.[46] No permit is required under the scheme to carry out works for the signalised intersection. However, if we consider those works necessary as a result of the grant of a permit for the proposal, we may include a condition requiring them to be provided by the Applicants or paid for wholly by the Applicants.[47]
VicRoads does not oppose the southern access or a signalised intersection, but opposes Option A2. It supports a different option prepared by the Applicants, known as Option A4. Option A4 is similar to Option A2 but differs mainly in that it prevents right hand turns into and out of Sydney Street. It could minimise through traffic delays consistent with its bus priority route status.
The Council opposes both the southern access and a signalised intersection (ie Options A2 or A4) and relies on the opinion of Mr O'Brien and a traffic report it commissioned as part of its preparation of the UDF.[48] Some residents, including those located west of Orrong Road, are opposed to Option A4. The Applicants rely on the opinions of Mr Kiriakidis and Mr Hunt in their support of the southern access and Option A2.
Our task is therefore to make a finding about whether the southern access is a reasonable outcome having regard to the relevant decision guidelines, whether signals (or other works) are necessary and should be provided by the Applicants, and (if so) whether one of the different options could be supported on planning grounds. We remain conscious of the fact that regardless of whether we find one option appears to have more merit than any other and should be provided as a condition of permit, no works could be carried out without VicRoads' consent.
Mr O'Brien and the Council support a northern access and submit -
- It is an existing access and has a satisfactory northbound right turn lane into the land and is close to the existing pedestrian signals (that enable satisfactory right hand turn exits).
- It is located more mid-block between Malvern Road and High Street.
- The southern access is too close to Sydney Street to work without signalisation.
- Signalisation at the southern access, particularly Option A4, is not warranted on traffic generation grounds and will have adverse local traffic effects.
We are unable to agree with the Council. We prefer the opinions of Mr Kiriakidis and Mr Hunt to those of Mr O'Brien.
The southern access is preferable on planning and urban design grounds. A northern access requires sharper turns to reach the plaza and is less direct for station drop offs. It is likely to be less efficient in site layout terms because of the need for more road space. However, more importantly, it enables a path on the south side to enjoy a Toorak Park outlook and connect Toorak Park with the station.[49] It also enables buildings to be located further from, and hence reduce their prominence from, Toorak Park. In addition, it is closer to existing bus stops. The strength of the Council's opposition to a southern access is lessened by its support for a southern access in the UDF and C153.
A southern access enables a new pedestrian crossing that is more convenient, based on pedestrian traffic surveys, for pedestrians accessing Toorak Park. It also enables west-bound users of Orrong Romanis Park (eg students of Armadale Primary School) to use the higher amenity and potentially safer pedestrian route through the land rather than the existing path along the north boundary.
We are satisfied there would be a need for signals at the southern access. We agree with Mr O'Brien that the projected traffic generated by the proposal at the intersection (eg residents and their visitors, maternal health centre users, café and convenience shop users, and station drop off vehicles) does not quite reach the level that would normally warrant signalisation under VicRoads' guidelines. However, we agree with Mr Kiriakidis and Mr Hunt that they are justified on safety grounds, given traffic volumes on Orrong Road and the proximity to Sydney Street.
We prefer Option A2 because it maintains existing local access to and from Sydney Street (and hence minimises any adverse impacts to the local area) and would result in only minor change to footpath widths and street trees.[50]
We accept Mr Hunt's opinion, based on his SIDRA analysis, that although any signals will generate queuing, limiting green time phasing to Sydney Street to match existing capacity means that average delays of about 27 seconds to through traffic on Orrong Road are in line with existing delays. Some delays are to be expected given the function and higher status of Malvern Road and High Street.
Option A2 includes a left turn slip lane from Sydney Street to Orrong Road. None of the traffic experts considers this slip lane needed. We will not include it in the condition. We will also include a condition requested by the Director of Public Transport that the Applicants provide shelters at the nearby bus stops on both sides of Orrong Road.
At the hearing, VicRoads submitted that if the Council and the local community opposed Option A4, VicRoads would be prepared to consider and support Option A2.

[67]

The Council and residents submitted that design of the boulevard and its associated plaza and open spaces, together with the adjoining tall buildings and associated activities, would create an unpleasant, overshadowed and overborne environment, not conducive to the intended social interaction and enjoyment. Mr Canavan, supported by various expert witnesses, argued that this aspect of the design was a sound and successful response to the site's levels and priorities for station access and would be socially successful.
We find that the design of the boulevard and associated buildings, spaces and activities, is acceptable.
The boulevard and its associated buildings form a complex of spaces and activities. The boulevard extends eastwards along the southern side of the land past Building B (six storeys) and Building C (seven storeys) before turning northwards through about 45 degrees to enter the plaza. The plaza is a space of about 38 metres square surrounded by Building D (nine storeys), Building F (twelve storeys), Building G (nine storeys) and Building L (nine storeys). Buildings D and F are joined on their distant edges by a lower Building E (five storeys). Buildings D, F and G are square-on to the plaza, while Building L is set on edge. A twelve metre wide opening between Buildings F and G, on the northern side of the plaza, then gives access to the corner of a triangular space (the station forecourt) that in turn gives direct access to the station footbridge.
The boulevard descends along its length by about five metres to the plaza, with a retaining wall and footpath along its northern side, a sloping vegetated or grassy bank to the other. The plaza and station forecourt are at the same level as the station footbridge. The plaza contains, around a central clump of palm trees, a turnaround for cars dropping off rail passengers and is fronted by a convenience shop, a maternal health centre, a multi-purpose room and a café. There are also two sets of open stairs and a lift giving access to open spaces one level above the plaza and to Toorak Park (to the south and south-east) and to the open spaces around Buildings B and C (to the west).
There was wide acceptance that placing the station forecourt at the same level as the station footbridge was desirable, though Mr Czarny was critical of the lack of at-grade connectivity between the plaza and Toorak Park.
Before the plaza is reached, the boulevard provides entry to basement parking areas on either side and, along its south-eastern edge, is a row of doors to various service areas.
More specific criticisms by Mr Morris, Mr Czarny and others of the boulevard and its associated spaces included -
- The plaza will be 'awkward at best', excessively shaded, dominated by cars, lacking separation of cars and pedestrians and will fail its (presumed) role as a community hub.
- The boulevard will, as it descends, create a schism through the development and, as it approaches the plaza, will be dominated by the unattractive retaining walls and service doors.
- The path on either side will be too steep or too narrow and will provide an unattractive environment for pedestrians walking to or from the station or elsewhere.
We accept that, even at commuter peak hours, volumes of external pedestrians and vehicles will be relatively modest.[51] Even after allowing for additional foot traffic from residents on the site, we conclude that it would be quite appropriate that this area is designed and managed as a shared space.
We inspected a number of urban spaces nominated by Mr McGauran, in particular the small plaza in the QV building in the city, which is equivalent to the plaza in its overall dimensions, though surrounded by somewhat taller buildings.
From this inspection and from the evidence, we accept that the plaza will have an urban, rather than suburban character, but given our other conclusions about the acceptability of the urban form that is proposed here, we find that the plaza will be an acceptable urban space.
It will surrounded by edges with very different characters, so that its nature will be visually dynamic and will have some pedestrian movements at road/plaza level and some pedestrians passing around it and overlooking it from the level immediately above. The at-grade relationship between the plaza, the station forecourt and the railway footbridge is beneficial and consistent with the overall design principle, as espoused by Mr McGauran in particular, to support pedestrian movement through the site and to the station.
We find no objections to the sections of retaining wall and the section of wall devoted to service areas. These are only short sections of the boulevard's edges. The edges include grassed slopes, footpaths, views of or between taller residential buildings, views of and access to open space and a number of community services.
The scale of buildings surrounding the plaza is acceptable within the proposal's intended character type. The 12 m wide gap between Buildings F and G is also acceptable. We agree with Mr McGauran that the gap will appear wider because the closing edges of these two buildings consist of open balconies. The visual gap will therefore be more like 15 m with the comb-teeth of balconies up its edges. The relative narrowness of this gap would, in our view, emphasis the separation of function and the visual openness of the plaza and the station forecourt.
We have discussed specific amenity aspects of the plaza (shadowing and wind effects in particular) later in these reasons.
Finally, there is one related issue. The Applicants propose that, following construction, the boulevard (including the shared zone for station drop offs and pick ups at its eastern end) be transferred to the Council for its future care and maintenance as a public road. The road would be vested on the registration of the relevant stage of the subdivision of the land. The Council is opposed to such vesting and prefers the road to remain common property. We will not include any condition so that this issue can be resolved at a later date as part of the subdivision process.

[68]

The Council and residents submitted the landscaping response was unacceptable. They argued there was insufficient open space, too much reliance on adjoining parks, too much open space was located on structure, the main open space was excessively in shadow, the root systems of some adjoining trees on Toorak Park would be adversely affected, and there were lost opportunities for new paths.[52]
The Applicants rely on a landscaping concept plan.[53] Mr Wyatt reviewed and supports that plan. The Applicants also rely on the evidence of Mr Galbraith, who reviewed the aboriculture reports, especially in relation to the pepper trees at Toorak Park.
Overall, we find the landscaping response is consistent with State and local policy and is acceptable
Local policy recognises that Stonnington and Armadale are relatively undersupplied with public open space. However, the subject has the particular benefit of adjoining one of the best served areas for public open space in Toorak Park, Victory Square and Orrong Romanis Park, totalling about 8 ha.
There is no requirement in the scheme to make a public open space contribution in land or money when constructing dwellings. The scheme recognises that a contribution must be made only when the land is subdivided and the dwellings are sold.[54] A 5% site value contribution will be then made and the Council is likely to use the funds for open space improvements elsewhere.[55]
The proposal will have an important amenity benefit from its location near existing public open space. In that sense, it will borrow that amenity. As the Council's policy on open space recognises, urban consolidation blurs the boundaries between public and private open spaces and developers need to look to augment or enhance existing open spaces in their projects.[56]
A variety of different open spaces is proposed. Each is communal open space and available to all residents. Most of the areas will also be publicly available and this will be a real benefit to surrounding residents.
The main open space is called the 'central green' and is generally located between the buildings facing Toorak Park and those facing the railway. From the north at the plaza, users must take stairs or an external lift to reach the central green. We do not agree that the disconnect in levels will adversely affect the central green. The plaza is not part of the proposal's open space in a recreation sense. As previously stated, it is shared with slow moving vehicles and bicycles. The central green is about 110 m long (extending to the Osment Terraces) and varies in width between about 18 m and 38 m.
The central green is established on structure (the southern basement). It is a space of meaningful size (about the size of the former city square on the Collins Street and Swanston Street corner) and will be surfaced with lawn and paths and planted with mainly perimeter deciduous trees that will grow to about 10 m mature height. We accept Mr Wyatt's opinion that current practices, including providing for at least one metre deep soil and irrigation, can enable a quality landscaping result. We share Mr Milner's doubts it could be used for informal ball sports, but it will be a pleasant place to talk or read a book or pass through or look down upon.
We agree with Mr Czarny and Mr O'Dwyer that the central green will be partly compromised by building shadow, given its north-west to south-east orientation. At the winter solstice, sun enters the space only after 2 pm. At the equinox, significant sun enters the space from midday. As other spaces on the subject land are not in shadow during the morning, the shadowing is acceptable.
The other criticism of the central green is that it terminates at the car-dominated Osment triangle. This criticism is exaggerated. The triangle provides vehicle access to only fourteen townhouses and a drop off area, so vehicle generation will be low. It will function as a pedestrian shared space. Mr O'Dwyer praised the community focus of the shared access and parking area in the middle of the Tillotson Terrace complex, where more dwellings are located. If the shared space in Tillotson Terrace works, we no see reason why the Osment triangle cannot work just as well and why it cannot draw people into the central green.
In addition, in terms of connectivity, a central green user has the alternative of entering or departing via the gap between Buildings R and P via Osment Street and the proposed path along the north edge of Victory Square.
There are a number of other smaller spaces. All but one adjoin abutting public space and therefore augment or enhance the existing public realm. They include the station forecourt and the west and east village greens. All these other spaces have excellent solar access. Some of the smaller spaces have a single protruding basement vent. The vent can be transformed into a landscape feature and will not necessarily detract from their appearance or use.
The open space and landscaping response also provides enhanced public access through the subject land from the south, east and west. In addition to paths along both sides of the boulevard between Orrong Road and the station and on to Beatty Avenue, there is a Toorak Park 'extension' of about 110 m by 10 m adjoining and augmenting the Park's north-east corner. It contains a path connecting the boulevard to Victory Square. While this is of benefit, it can be better and we will require that path to be extended along the south edge of the Building R terraces so that the path extends to Osment Street.
As previously mentioned, there is further public access from Osment Street through the central green to the plaza and station and Beatty Avenue. The existing perimeter paths outside the land (ie the north path and the railway reserve path) will be maintained. The end result will be a complete perimeter path system, as sought by some residents, even though the Council may later review the section immediately east of Orrong Road.

[72]

A variety of criticisms were made of these interfaces. They included a tendency to borrow amenity rather than enhance it and an unresolved path between Toorak Park and the boulevard leading to an uncomfortable change in level before reaching the plaza. As well, there was the impact of the south basement on existing pepper trees along Toorak Park boundary, and lack of path access along the north edge of Victory Square. As well, it was claimed there is a sense of visual domination or overshadowing of the reserves.
We disagree with these criticisms.
As previously mentioned, the proposal borrows amenity from both reserves. It is inevitable that development adjoining these reserves will do so. The existing development does this. It is expected that residents of the dwellings will be attracted to and use the reserves. This is the same as other residents in the surrounding area. It is not an unreasonable borrowing because the reserves are augmented and enhanced by publicly accessible setbacks incorporating paths along the common boundaries. The Council's public realm strategy and master plan proposes to improve pedestrian access around and through Toorak Park and this is consistent with the proposal.
Buildings B, C, L, M, N, O and P adjoin Toorak Park and in general terms follow the alignment of the existing building. The one to two-storey taller parts of the seven new buildings will be visible over the existing trees from southern parts of the reserve, rather like turrets on a wall. There will be visible gaps between those taller elements. We do not consider this a significant adverse visual impact.
The Applicants' shadow studies show that the proposal has a shadow impact on the Toorak Park and Victory Square.
For Toorak Park at the equinox, between an additional 0.1% to 0.3% (including existing vegetation) or an additional -0.1% to 0.2% (excluding existing vegetation) of the reserve, at its northern edge, is in shadow between 10 am and 3 pm. At the winter solstice, the same percentages are between 0.4% to 2.2% and between -0.6% and 0.9%. This is not a significant impact.
For Victory Square, the impact is greater. At the equinox, the increase at the same times on the same alternative bases, is between 0.8% and 2.1% or 2.7% and 7.6%. At the winter solstice, the increases are between 1% to 3.1% or between 14.8% and 25.2%. The latter figures are high, but the result is not unreasonable because the impact generally falls into the thickly vegetated northern edge which is not used for sport and less used for passive recreation.
The path along the south side of the boulevard may be unresolved in the sense of providing a suitable disability-compliant grade. This can be resolved by starting the ascending path closer to Orrong Road. It is well located towards to the top of the boundary mounds and will offer a pleasant outlook across the park. It connects to the plaza and the station via the north-western edge of Building L and then via stairs or lift to the lower plaza at this point.
Of the forty trees along the Toorak Park boundary (many of which are pepper trees), one pepper tree (number 18) adjoining Building L in the Park Precinct is setback about 1 m from the boundary and about 1 m from the southern basement. It is most vulnerable to damage. We accept Mr Galbraith's opinion, in his reviewing of the aboricultural advice, that the other trees will not be significantly adversely affected. Tree 18 should, as recommended by Mr Galbraith, be irrigated regularly during drier months after the basement retaining wall is constructed and the setback area to the basement wall left intact.
Finally, as previously stated, we intend to include a condition on the permit requiring the ground level private open space of Building Q to be setback to provide a path joining Osment Street and the boulevarde via the Toorak Park boundary, as recommended by Mr McGauran.
The Council requested inclusion of a condition to ensure that future residents are aware of noise associated with the use of Toorak Park and Victory Square for competitive sport, including training. This noise involves sirens, whistles and players' voices. The condition would require the owner to enter an agreement under section 173 of the Planning and Environment Act 1987 to acknowledge the reasonable use of the reserves and the potential amenity impact on future owners.
As the acknowledgement of the potential amenity impact may amount to a requirement that future owners accept an unreasonable impact on their amenity, the Council did not pursue this part of the condition.[59] Even so, we do not accept this is a valid condition. An acknowledgement of the reasonable use is both vague and not reasonably capable of being related to the implementation of planning policy having regard to the provisions of the scheme, including the B5Z. The general amenity provision of the B5Z operates in respect of the impact of the proposed residential use on the parks and not the reverse.[60]

[73]

Neither the Council nor its officers had identified noise levels within dwellings as a concern. The residents were mainly concerned about reflected train noise, although there were some references to noise nuisance for future residents, ground vibration from trains and noise from construction activities. At the hearing, Mr Morris tested Mr Brown's report and opinions in detail and the residents sought to clarify relevant issues.
We have made a recommendation as to an appropriate level of average (Leq) and maximum (Lmax) nighttime noise for bedrooms, drawing on Mr Brown's evidence. We conclude that reflected noise will not be significant.
It is State policy to encourage internal building layouts for dwellings that respond to the site context including external noise sources.[61] There are currently no requirements or guidelines in Victoria for assessing or controlling noise impact from rail corridors on residential development.
The land's east boundary adjoins the station and lines going to Frankston and Dandenong/Cranbourne. Some metropolitan services do not stop at the station. V-Line passenger and freight trains also travel through station en route to Gippsland and the city. It is not unusual for about five V-Line freight trains to pass in the early morning. The diesel freight trains (sometime with two locomotives) are climbing near the station when travelling away from the city, so they use more power and sound levels are higher. Metropolitan trains sound a horn when leaving the station. V-Line trains often sound their horn when passing.
The most sensitive noise receptor is bedrooms between 10 pm and 7 am (the nighttime). The Applicants propose to design to an average noise level of 35dB(A)Leq in bedrooms during nighttime. This standard is based on road traffic noise standards. This will mean some bedrooms in the proposal (eg the bedroom in the third storey facing the rail line in the seven townhouses in Building Q) would need thick double-glazing. The specification would vary, depending on whether the bedroom has large or small glazed areas.
Mr Brown's measured the existing noise at four locations on the subject land along the rail reserve. One of them (location L3) is at Building Q. Over a period of a week in mid-2011, average external noise levels were 67dB(A) Leq and maximum external noise levels were 94dB(A)Lmax.
Mr Brown stated the proposed standards were higher than those adopted for the proposed regional rail link project between Werribee and Deer Park. For that project, average internal noise levels of 40dB(A) and maximum internal noise levels of 65dB(A) must not be exceeded for bedrooms during nighttime if external average noise levels exceed 55dB(A) or maximum noise levels exceed 80dB(A).
He also stated the proposed standards would comply with a maximum internal noise level of 55dB(A) adopted by the Tribunal for bedrooms during nighttime in two decisions.[62] He conceded they were lower than the maximum internal noise level of 50dB(A) adopted in two other cases.[63] He considered the standard in those two cases was unnecessary because, in part, the Richmond Icon case involved noise from rail points near Richmond station that he estimated added about 10 dB(A) to each noise event.
Mr Brown's evidence did not specifically relate to sleep disturbance criteria, which is the issue that we are most concerned with. We understand that sleep disturbance criteria generally takes account of both the level and frequency of sound peaks and involves researching behavioural outcomes different to those of noise nuisance per se. However, we agree with the Tribunal in the Richmond Icon case that the important amenity to be protected is

[75]

In Pomeroy Pacific Pty Ltd v Moreland CC No 2,[65] the acoustic consultant's report stated that the adopted maximum sound level of 55dB(A) was based on 'event sleep disturbance, which is typically applied to these evaluations in best practice', and '[i]n general, events not exceeding 55dB(A) are unlikely to cause awakening'. Mr Brown expressed the same opinion during cross-examination.
We are faced with a variety of Tribunal decisions relating to railway noise and acceptable levels of internal nighttime noise for bedrooms and recommendations for the same in a variety of government policies and guidelines. We summarise them as follows -
- Two Tribunal decisions adopting an internal maximum noise level for bedrooms of 50 dB(A).
- Two Tribunal decisions adopting an internal maximum noise level for bedrooms of 55 dB(A).
- The criteria provided by the proposed regional rail link project, of average internal noise levels of 40 dB(A) and maximum internal noise levels of 65 dB(A).
- The Applicants' proposal to achieve an average noise level (Leq) of 35 dB(A).
As we see the issue, the level of external nighttime noise is relevant only as one variable that has to be assessed, the important outcome that should be specified is the acceptable maximum level of sound within bedrooms. The level of required noise abatement (a matter of the building's design) reflects the difference between these. Thus -
- The external nighttime noise levels must be properly measured.
- The required upper limits of internal noise must be prescribed.
- The specification of the building - walls, doors and windows, must be such as to ensure that an appropriate level of noise abatement is achieved.
We hypothesise that the Tribunal adopted the 50 dB(A) level in the two cases, referred to above, because certain risks or uncertainties about the future external noise environment justified a more conservative approach.
In this case, because the external noise environment may change (eg the possibility of an increase in number of nighttime freight trains), and because this would increase the average night-time noise level, we propose to adopt both the Applicants' average internal (Leq) of 35 dB(A) and the maximum internal (Lmax) of 55 dB(A) sound levels as the design criteria for this development.
Finally, Mrs Carroll was concerned about possible detriment to Beatty Avenue dwellings from rail noise reflected eastwards off Buildings F to K. We accept the expert opinion of Mr Brown that reflected noise, as well as ground vibration, will be imperceptible. Construction noise is a matter to be dealt with separately and can be addressed as part of the construction management plan.

[77]

The Council submitted that the wind levels in the plaza, as well as a number of other points, would not meet appropriate comfort levels without further measures. We find that it is reasonable to address this issue by way of permit condition requiring further analysis and, if appropriate, modifications to the design of buildings and landscaping.
The Applicants carried out a wind study of an earlier version of the proposal.[66] The study found that, at various points, the appropriate wind speed would be exceeded for some wind directions. The study used a scale model of the proposal and included various assumptions of the location and type of vegetation. Of particular note, wind conditions between Buildings F and G (ie between the plaza and the station forecourt) would on occasion exceed walking comfort. The study did include some dramatic and some not necessarily feasible options to address this outcome.
The study indicates that relatively small changes (additional canopies, modest screens and the choice and location of vegetation) can have important ameliorative effects on local wind conditions.
Neither Mr Morris nor the residents sought to examine the authors of the study and the Council's own expert consultant considered the study's methodology acceptable and its results plausible.
Mr Canavan stated the proposal has been modified since the study to take account of its findings. In particular, Building F has been reduced substantially in height (from twelve to nine storeys) and the landscape plan has been further developed. However, the wind-performance of the current proposal has not yet been re-assessed. Mr Canavan submitted that with these more recent changes (and further feasible changes, if needed) an acceptable wind environment should be achievable.
We find that appropriate wind conditions can be achieved by further modest modifications that would not depend on changes outside the general character of the proposal and that this requirement can be addressed by permit condition.

[80]

During the course of the hearing, on 5 June 2012, the car parking provisions of the scheme were amended.[68] This changes the part of the proposal for which a permit is required and the exemptions from third party notice.
The 57 three-bedroom apartments now require 114 car spaces (formerly 114). The 391 one or two-bedroom apartments now require 391 spaces (formerly 782 spaces). The 18 three-bedroom townhouses now require 36 spaces (formerly 36). The 448 apartments now require 90 visitor spaces (formerly no spaces). The 165 sq m convenience shop now requires 10 spaces (formerly 10). The 40 seat, 195 sq m café now requires 7 spaces (formerly 24, if characterised as a restaurant). The two-practitioner maternal health centre now requires 8 spaces (formerly 10, if characterised as a medical centre). In total, the requirement is now 659 spaces (formerly 976).
The plans show 681 car spaces and 40 motorcycle bays in the two basements. The north basement has 257 car spaces and the south basement 391 car spaces. Of the total of 681 spaces, there are 85 tandem pairs (170 spaces) and 52 small spaces (ie 5 m by 2.3 m, rather than the standard 2.6 m by 4.9 m) and 33 car spaces for visitors. Outside the basements, there are 5 car spaces for visitors in the Osment triangle and 36 car spaces in the townhouse garages. Total spaces in and out of the basements is therefore 731 spaces. This does not include 9 car spaces in the plaza for Flexicar (one space), a disabled space and short term parking eg station drop offs or visitors to the café or shop.
Mr Hunt recommends the allocation of the 731 spaces should be as follows -
- The 154 one-bedroom apartments to each have a single space.
- Of the 237 two-bedroom apartments, 130 be allocated one single space, 50 be allocated one single space plus one small space, and the remaining 57 be allocated a tandem pair. This is 344 spaces at a rate of 1.45 spaces per dwelling.
- Of the 57 three-bedroom apartments, 28 be allocated a tandem pair, 27 be allocated two single spaces, and 2 be allocated one single space plus one small space. This is 114 spaces at a rate of 2 spaces per dwelling.
- 67 basement single spaces for visitors.
- The 18 townhouses be allocated 36 garage spaces (two per townhouse, some in tandem) and 5 visitor spaces in the Osment triangle.
- The shop, café and maternal health centre be allocated 2, 2 and 7 spaces (total of 11) respectively.
Mr Kiriakidis supports a broadly similar allocation.
A permit is therefore now only required to reduce the visitor parking for apartments from 90 to 67 spaces and to reduce the shop, café and maternal health centre parking from 25 to 11 spaces.[69] A permit is also required to vary design standards to, among other things, create the 52 small spaces, to create a number of shorter 9.8 m long tandem pairs, and ramps in the north basements with their proposed grades.[70]
Many residents oppose the granting of any parking reductions and are concerned about overflow parking in adjoining streets. We will proceed on the basis that the exemption does not apply.[71]
The Council supports a reduced requirement for residents parking from that proposed, especially for the apartments, to maximise the environmental benefits of station proximity and encourage the modal shift and behavioural change to reduce greenhouse gas emissions. While we have sympathies with that principle, the reduction sought now only applies to the shop, café and maternal health centre and visitor spaces. The land is not in a formal parking reduction area (such as Forrest Hill) and it is likely that the journey to work modal shift will occur with many residents choosing to use their car only during evenings and weekends.
We therefore support the proposed allocation of spaces. We would grant the reductions for visitors (based on surveys relied on by Mr Hunt) and for the other uses. We would grant the design standard variation for the small spaces. We do not grant the variation for the tandems and will include a condition to require them to be lengthened to meet standards.
In relation to bicycle parking, the 99 basement spaces meet the statutory requirement for 95 spaces for residents and employees. There are also 74 spaces in the station forecourt and this exceeds the statutory requirement of 49 spaces for residents and café patrons. No permit is needed for a reduction.

[119]

Before the first stage of the use and development starts, a design plan for the boulevard off Orrong Road and for the internal driveway off Osment Street must be prepared to the satisfaction of the Responsible Authority. The design plan must include all relevant design details including longitudinal sections, cross sections and drainage design.
Before the first stage of the use and development starts, a detailed functional layout of the proposed signalised intersection at the access point to Orrong Road must be submitted to and approved by VicRoads and the Responsible Authority. The plans must be generally in accordance with the plan prepared by GTA Consultants Pty Ltd entitled Proposed Intersection Concept Design Signalised Intersection - Option A2 drawing no. JM13452-05P5 and dated 5 April 2012 but modified to remove the left turn slip lane in Sydney Street.
Before the first stage of the use and development starts, a detailed staging plan for the construction of the signalised intersection and any associated works, including removal of the existing pedestrian operated signals in Orrong Road, must be submitted to and approved by VicRoads and the Responsible Authority. All works must be carried out in accordance with the times specified in the staging plan.
Before any works, including intersection works, on Orrong Road start, a detailed engineering design must be prepared generally in accordance with the approved detailed functional layout plan and to the satisfaction of VicRoads.
The preparation of the detailed engineering design and the construction and completion of all work must be undertaken in a manner consistent with current VicRoads' policy, procedures and standards and at no cost to VicRoads. In order to meet VicRoads' requirements for these tasks the owner of the subject land will be required to comply with the requirements documented as Standard Requirements - Developer Funded Projects and any other requirements considered necessary depending on the nature of the works.
No works must start in, on, under or over the road reserve of Orrong Road without having first obtained all necessary approvals under the Road Management Act 2004, the Road Safety Act 1986, any other relevant Act, or Regulations created under those Acts.
The existing pedestrian operated signals in Orrong Road must be removed in accordance with the approved detailed staging plan and to the satisfaction of the Responsible Authority.
All redundant crossovers to the subject land in Orrong Road and the roadway and kerb must be reinstated to the satisfaction of the Responsible Authority.
The construction of a road on the land (an internal road), including the boulevard and plaza, must be started and completed in accordance with the staging plan approved under condition 1 and within the periods and by any dates, if specified.
Before construction starts of an internal road, the owner must prepare a fully detailed engineering plan for the internal road and submit that plan for the approval by the Responsible Authority. This plan must clearly show that the abutting development, including the basements, is fully protected from any overland flow that can be expected from the road. The internal road must be constructed in accordance with an approved detailed engineering plan and to the satisfaction of the Responsible Authority. All necessary works, including drainage, must be constructed at the cost of the owner.
If the construction of an internal road must be completed for a particular stage under the staging plan approved under condition 1, no buildings in that stage requiring access from the internal road may be occupied or used until all works required by the approved detailed engineering plan for the road are completed.

[159]

Before the detailed functional layout of the proposed signalised intersection at the access point to Orrong Road is approved under condition 14, the owner must enter into an agreement with the Director of Public Transport to construct by an agreed date two bus shelters/stops and associated infrastructure on both sides of Orrong Road near the subject land which comply with the Disability Discrimination Act 1992 (Cth).
Before the development starts, the owner must obtain from the Rail Operator the conditions and safety requirements for working near an operating railway and live power feeders and must comply with those conditions and safety requirements.
The owner must ensure that all public transport infrastructure (including overhead power and supporting infrastructure for trains) is not damaged during the construction period. Any damage to public transport infrastructure as a consequence of the construction period must be rectified to the satisfaction of the Director of Public Transport at the full cost to the owner.
The owner must take all reasonable steps to ensure that disruption to train operations within the railway corridor is kept to a minimum during the construction of any stage of the development. The owner must give notice in writing to the Rail Operator and the Director of Public Transport of any foreseen disruptions to operations during the construction and of proposed mitigation measures no less than fourteen days before the construction starts.
No lighting is to be erected that throws light onto railway tracks or which interferes with the visibility of signals and the rail lines by train drivers.
Building materials (including glass/window treatments) along the rail corridor must not cause reflections and avoid using red or green colour schemes that may interfere with driver operations.
No drainage, effluent, waste, soil or other materials must enter or be directed to railway land or stored or deposited on railway land.
Permanent soil anchors must not be installed on railway land. Temporary soil anchors may be installed to the satisfaction of the Director of Public Transport.

At a glance

Court

Decision date

Source

Judgment (223 paragraphs)

Lend Lease Apartments (Armadale) Pty Ltd v Stonnington CC [2012] VCAT 906 (10 July 2012)

Parties

Legislation Cited (5)