1

Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies provided generally in accordance with the plans received on 9th June, 2004, but modified to show:

(a)

A reduction in the overall height of the building by:

(i)

Reducing each floor to floor height to 3.2 metres.

(ii)

Narrowing the footprint of the "attic level" to a maximum width of 5 metres (without increasing the length of the footprint based on plan TP06 (Rev A) with resultant variation to the roof profile.

(b)

The pedestrian walkway must be lowered (in various parts) so that it is at least 1.7 metres below the top of the southern boundary fence.

(c)

The courtyard outside the study to Apartment 1 lowered to natural ground level (with variation to vegetation and surface/pavement treatment).

(d)

That part of the ensuite and WIR to Apartments 1 and 3 which are within 6 meters of the southern boundary (and extending northwards from the western edge of the wall to bedroom 2 of Apartment 1) shall be removed and replaced by landscaping with the roof line of the building revised accordingly.

(e)

Further details regarding the screening of the west elevation and details of the fixed shutter screens and planter screening to comply with Clause 55.04-6 (overlooking) of the Planning Scheme to the satisfaction of the Responsible Authority.

(f)

A significant trench grate is to be provided at the top of the basement ramp near the street boundary to help collect any runoff that may occur to the satisfaction of the Responsible Authority.

(g)

The ramp for the basement car park is to have a minimum clearance of 4m to the Cedrus atlantica tree.

(h)

The Eucalyptus maculata (No.19) nominate as being replaced by an alternative canopy tree (see Condition 4).

(i)

Details of Council assets in front of the site to Tintern Avenue and relocation of those assets resulting from the construction of the proposed vehicle crossing to the satisfaction of the Responsible Authority.

(j)

Removal of unused crossover and reinstatement of kerb, channel and naturestrip to the satisfaction of the Responsible Authority.

(k)

Installation of an electric warning system to warn motorists who are about to access the circulation ramp, in the event that there is another vehicle already on the ramp.

(l)

Details of pathway lighting along the pedestrian entrance.

2

The development allowed by this permit and shown on the plans endorsed to accompany the permit shall not be amended for any reason without the consent of the Responsible Authority.

3

Prior to the commencement of the development a Tree Management Plan must be prepared and submitted to the Responsible Authority for endorsement relating to the trees to be retained on the site and on adjoining sites as identified in the report by Galbraith and Associates that includes the following information:

(a)

Prior to commencement of the project the developer/owner must appoint a qualified Arborist to oversee demolition and construction work within the critical root zones of significant trees nominated for retention on site and trees within one metre of the boundary of adjoining properties.

(b)

A Tree Protection Fence must be established around the trees to be retained. The fences must be a recommended distances away from the trees on all sides.

(c)

Fence construction to be detailed.

(d)

Signs must be attached to the fence detailing the trees to be protected/retained.

(e)

No trenching or excavating is permitted within the fence area.

(f)

No storage of materials, vehicles, etc or dumping of waste is permitted within the fence area.

(g)

The area within the fence must be mulched with woodchips to a depth of 75mm to 100mm.

(h)

A watering regime must be developed for the trees to be retained.

(i)

That no excavation for the basement car park must be within the 1.5 metre setback to the west boundary and the ground must be maintained at the existing grade without any paving, trenching or boring.

The TMP must be signed by both the arborist and the builder/developer prior to it being submitted to the Responsible Authority for endorsement.

4

Before the development starts a landscaping plan, generally in accordance with the plan prepared by Carol Frank Mas must be submitted to and approved by the Responsible Authority. When approved, the landscaping plan will be endorsed and will then form part of the permit. The landscaping plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:

(a)

Description of vegetation to be planted including botanical name of the species, numbers of plants, height and spread at maturity and at the time of planting.

(b)

The surfaces to be constructed.

(c)

The method of preparing, draining, watering and maintaining the landscape areas.

(d)

Replacement of the Eucalyptus maculata specie with a canopy tree capable of growing to at least 15 metres in height at maturity. Such tree shall be a minimum of 3 metres in height at planting.

(e)

Various changes to reflect modifications in layout identified in Condition 1.

The works shown on the endorsed landscape plans must be carried out and completed within 3 months of the completion of construction to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

5

Prior to the commencement of the development, the applicant is to provide a Civil Engineering report detailing services and design details to serve the proposed development to the satisfaction of the Responsible Authority.

6

Prior to occupation of the development, the grated side-entry pit adjacent to the property in Tintern Avenue must be relocated to the south, clear of the crossing and the existing pit converted to a grated only pit, at the permit holders cost. A detailed plan for these works must be submitted and approved by Council and the works must be completed in accordance with Council's standards and to the satisfaction and under the supervision of Council. Supervision fees will be applicable.

7

Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.

8

Air extraction fans, air conditioning and all other plant and equipment installed on the subject buildings shall be baffled in accordance with the requirements of the Environment Protection Authority. Ventilation systems shall be designed and installed in accordance with relevant Australian Standards to the satisfaction of the Responsible Authority.

9

The drainage of the site shall be to the requirements of the Responsible Authority and the discharge of water from the land affected by this permit shall be controlled around its limits to prevent any discharge onto any adjacent property or street other than by means of an underground pipe discharged to a point nominated to the satisfaction of the Responsible Authority.

10

The vehicular crossing shall be constructed in the locations shown to a standard satisfactory to the Responsible Authority and at the permit holders cost.

11

This Permit will expire if:

(a)

The development is not started within 2 years of the date of this Permit; or

(b)

The development is not completed within 2 years of the date of commencement.

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

Mr CJ Wren of Counsel with Mr D Scally, Lawyer. Mr Wren called evidence from:

Mr M Verhoeven, Town Planner, represented the following:

Mr Verhoeven called evidence from Mr Andrew Patrick, Arborist

1

Maldeves Pty Ltd is seeking a review of Stonnington City Council's decision to refuse Application for Permit No. 0311/04 which comprises development of five dwellings above basement car parking in a four storey building.

2

Stonnington City Council refused the application on the following basis:

•

the building's excessive height and bulk resulting in a dominating visual impact on adjoining properties and the immediate streetscape;

•

excessive building mass having regard to the prevailing built form character of the area;

•

inadequate setbacks;

•

excessive levels of overshadowing and overlooking;

•

overdevelopment of the site.

3

Various objectors represented by Mr Verhoeven and more particularly the Grimwade's to the south of the subject site at 23 Tintern Avenue expressed strong opposition to the excessive height of the building, its visual dominance, increase traffic movements and activity levels, and overdevelopment of the site.

4

The Toorak Village Residents Action Group argued the development:

•

contained unreasonable height and bulk;

•

has been designed to maximise the number of apartments;

•

is not in harmony with the site or its surrounds; is against new Rescode principles;

•

will result in significant overlooking of neighbouring properties and;

•

has insufficient setbacks from the eastern and western boundaries of the property.

5

The Toorak South Yarra Group argued the development:

•

will have an impact on the character of the neighbourhood in that its size and height;

•

was inappropriate given the prevailing built form and context of the site;

•

that the intensity and scale of the development is well beyond the objectives and guidelines of the Local Planning Policy Framework which seeks a lower height limit for development on local streets;

•

does not enhance or promote the liveability of the area; and

•

increases traffic and parking that would exacerbate an already acute lack of parking and congestion in Tintern Avenue.

6

Mrs Smith expressed concern about the loss of upper canopy vegetation, an increase in building mass and interruption to green leafy outlook when viewed from upper levels of her property.

7

Mr Nisiotis expressed concern about the visual impact of the development when viewed from his property to the west and in particular the lack of setbacks, overshadowing, potential for overlooking and the impact on the proposed development contemplated for his property.

8

Maldeves argued that:

•

The State and Local Planning Policy Framework call for a balancing of planning policies to determine outcomes in favour of net community benefit and sustainable development with their thrust on urban consolidation and principles to achieve appropriate design and built form outcomes.

•

The proposal satisfies Clauses 22.06 and 22.03 of the Local Planning Policy, that the proposal was supported by the Council Officers in principle as a factor in favour of the development.

•

The proposal meets a strategic imperative identified in Melbourne 2030 to develop sites such as this to full capacity.

•

The proposal complements or respects the neighbourhood character and does not involve replication. In this respect it was argued that:

•

The neighbourhood character at the end of Tintern Avenue is one of apartment blocks stretching for the length of sites with significant levels of indivisibility, including height variations of four, three and two storeys, predominantly exhibiting rectangular forms with low levels of articulation and modulation.

•

The proposed building would more closely resemble the single or double storey detached dwelling character of the area due to the proposed roof pitch which will add a distinct expression of architectural style to the street.

•

On the evidence of Mr Galbraith and Ms Frank-Mas there is support to remove a large gum tree in the north-west of the site and the building has been designed, having regard to Mr Galbraith's recommendations to preserve the trees on abutting properties.

•

That the setbacks are appropriate notwithstanding that Rescode does not apply to a building of this height.

•

The height and scale is an appropriate response on the strategic context to the built form context.

•

That the proposal provides a good level of access to daylight and sunlight.

9

The proposal, as revised, proposes to demolish an existing building including an in-ground swimming pool and remove various vegetation throughout the site to construct a four storey building with 5 dwellings above a basement containing 12 car parking spaces, ancillary storage, plant, lift and stair access.

10

The building has two dwellings at ground level, two dwellings at first floor level and a third dwelling on the second and third floor levels. The third floor level will mostly be built into the roof line. It includes provision for a roof garden, courtyard, lift overrun, one bedroom, kitchenette and ensuite. Part of the building will be split level with Apartment 2 having a finished floor level of 18.93 metres whereas Apartment 1 behind will have a finished floor level of 16.955 metres. Apartment 4 will have a finished floor level of about 22.43 metres whilst Apartment 3 will have a finished floor level of about 20.45 metres.

11

A new 2.1 metre high masonry fence is proposed close to the frontage, a new crossover will be provided with access via a 3.2 - 3.6 metre wide driveway.

12

The landscaping plan anticipates retention of some existing trees at the front of the site and measures to protect some trees on adjoining sites. A mature Eucalyptus maculata (spotted gum) located in the north-western corner of the site is listed for removal.

13

A noticeable design feature of contention is the relatively large 45 degree pitched roof. This roof would extend over much of the second and third levels. The Urban Context Report claimed it derived from an "Old English housing style typical of the inter-war architectural lexicon of Toorak and South Yarra".

14

The building contains strong building articulation on both plan level with the use of natural materials of a substantial quality including fine brickwork in English bond, complemented by rough cast render and timber windows with lead light upper panes.

15

The subject site is located on the western side of Tintern Avenue and is generally rectangular in shape with a curved frontage refecting the Tintern Avenue configuration. The site has a frontage of 20.03 metres, depths of 42.67 metres (north) and 49.24 metres (south). The site area is 913 square metres. The land has a fall of about 1.3 metres from south-east (front) to south-west (rear).

16

The site is occupied by a single storey detached brick dwelling with an in-ground swimming pool at the rear. This swimming pool and associated paving is elevated about 800mm to 900mm above natural ground level. There are a number of mature trees throughout the site.

17

Land to the north of the subject site is a 1970s three storey block of walk up flats containing nine flats.

18

Land to the south is a two storey detached dwelling (owned and occupied by the Grimwade's) set amongst a fairly generous garden. It has a double car garage along part of its northern boundary and there is a large Dutch Elm tree close to its northern boundary and various vegetation/trees and a garage close to the northern boundary abutting the subject site.

19

Land to the east comprises an old block of flats. The Tribunal was advised that a development proposal had been submitted to Council and was rejected. There was a review of the decision before VCAT and as a result a preliminary order has been issued requiring modifications to the development plan. Part the plans accompanying that decision anticipate retention or at least allowance for retention of the Eucalyptus maculata tree on the subject site.

20

Land in the neighbourhood comprises a mix of dwellings in terms of age, architectural style, condition and height. On the one hand there are some remnant single and two storey detached houses. There has also been several two, three and four storey blocks of flats built between the 1950s, 1970s. The architecture of some of these flats is relatively mundane, some buildings are high and bulky, although their visual impact is often diminished by substantial canopy vegetation.

21

Tintern Avenue, itself, is enhanced by various upper and lower level canopy vegetation which makes a contribution to the green and leafy character of this area. From my observation boundary alignments are often blurred by the vegetation cover, and one could say properties often benefit from neighbouring properties' vegetation cover.

22

There are parking restrictions in Tintern Avenue which favour permit holders and short term accommodation.

23

The site is located within close walking distance of the Toorak Village Activity Centre and good public transport in both Toorak and Williams Road.

24

The subject site is located in a Residential 1 Zone and a permit is required pursuant to Clause 32.01-4 of the Planning Scheme to develop more than one dwelling on a lot.

25

On 25 November 2004, Amendment VC31 was gazetted. This amendment amends the Victorian Planning Provisions by a number of ways and include:

•

Changes to Clause 19.03 of the State Planning Policy Framework to require residential development of four storeys or more to include an Urban Context Report and design response with reference and refers to the Design guidelines for higher density housing (Department of Sustainability and Environment 2004) as a document the responsible authority should have regard to in assessing the design and built form of projects.

•

Introducing a new requirement for the preparation of an Urban Context Report and design response to accompany all applications for residential development of four more storeys through a new Clause 52.35 of the particular provisions.

26

I note that no party was aware of this amendment until raised by myself whilst most parties understandably were prepared to argue their cases on the basis of Standards containing Clause 55 (Rescode) although these requirements were not mandatory.

27

There are various controls and policies of relevance in this application and these are contained within:

•

Clause 11

•

Clause 16.02 Medium Density Housing

•

Clause 19.03 Design and Built Form

•

Clause 21 Municipal Strategic Statement

•

Clause 21.08 Residential Areas Character and Amenity

•

Clause 22.02 Urban Design Policy

•

Clause 22.06 Residential Character, Amenity and Interface Policy

•

Clause 65 Decision Guidelines

28

Suffice to say that the State and Local Planning Policy Frameworks emphasise the significance of the need for urban consolidation, and both emphasise the need for appropriate development to respect neighbourhood character and achieve good design outcomes.

29

At the review hearing all parties made oral submissions with most supplementing these with written submissions. All witnesses provided written statements and were available for cross-examination. I was provided with a substantial array of photographs of the subject site, adjoining properties and the neighbourhood in general, plans and elevations, shadow diagrams, and copies of various extracts of local planning policies. In addition I undertook an inspection of the subject site and three abutting properties prior to the commencement of the second hearing day.

30

Owing to Clause 19.03 being amended, Mr Wren tabled an urban context report by the applicant's architect. Most parties were prepared to argue their respective cases on the basis of Clause 55 (Rescode), however owing to the recent gazettal of Amendment VC31 I gave the parties seven days to provide any further written comments regarding the Urban Context Report which recently introduced requirements for "Higher Density Residential Development". No further submissions were received.

31

At the commencement of the hearing Mr Wren sought leave to table revised plans. These plans had been pre-circulated to all parties and there was no objection to the substitution. These plans are:

•

TP04 Rev B

•

TP05 Rev B

•

TP06 Rev B

•

TP07 Rev A

•

TP08 Rev B

•

TP09 Rev A

•

TP10 Rev A

•

TP11 Rev A

•

TP15 Rev A

32

It is also noted during the hearing Mr Wren tabled a corrected version of TP07 Rev B which picked up on some changes to elevation treatment.

33

I consented to Mr Andrew Patrick being called as a witness late in the proceeding. Whilst this had been objected to by Mr Wren, I considered his evidence may be of assistance to the Tribunal particularly in relation to protection of an existing Dutch Elm tree and other vegetation in close proximity to the boundary with 23 Tintern Avenue. Similarly, accepted the Urban Context Report prepared by the architect on the basis of the recent amendment to the Planning Scheme. Having considered all of the submissions and viewing the site I consider the principal issues in this matter related:

•

Whether the height, mass and bulk of the development is respectful of the neighbourhood character and adjoining properties in particular.

•

Whether there will be adverse impacts on adjoining properties through overlooking and overshadowing.

•

Whether existing trees on adjoining properties can be protected adequately during and post-construction.

•

Whether car parking and access is appropriate.

•

Whether it is appropriate to remove various significant trees from the site.

•

Whether the proposal is excessive in size and amounts to an overdevelopment of the site.

34

I consider the proposed development is generally acceptable from a visual bulk perspective, however I agree with some of the concerns put forward by Mr Verhoeven about the excessive height of the building. I consider that it is too high and does not represent an appropriate transition in height between its highest part and adjoining buildings in Tintern Avenue. Whilst I recognise the applicant has made an attempt to reduce the visual impact and massing of the building by placing the upper levels within much of the roof space, I consider further steps are required to reduce the height and massing of the building. I have taken up some of Mr Verhoeven's suggestions to reduce the height of the building and therefore its impact on 23 Tintern Avenue and Tintern Avenue in general.

35

I consider it appropriate to reduce the upper level foot print so that the roof can be reduced in size. In addition the floor to floor levels can be reduced to about 3.2 metres. This would still allow generous floor to ceiling dimensions and be commensurate with the design philosophy.

36

I have also reduced the upper level footprint to a maximum width of 5 metres so that the roof profile can be reduced. This will provide opportunity to retain the roof garden, courtyard, lift overrun and a smaller version of the kitchen, bedroom 3 and ensuite within a smaller, lower roof line, thereby lowering the building and reducing the massing of the roof.

37

I note that whilst the applicant undertook some amendments to the upper level plans to accord with recommendations of the Council Officer. Some changes and more particularly the bedroom, ensuite and kitchenette areas in the attic were in fact increased in size rather than reduced. I consider the applicant did not make a realistic effort to reduce the upper level footprint in line with the Council Officer's recommendations.

38

Having regard to the above mentioned changes I am satisfied that the appearance of the building will be that of a high three storey building and will meet the policy intent in Clause 22.02 of "not being significantly higher" than surrounding buildings.

39

I consider the existing upper and some lower level canopy vegetation makes a contribution to the character of the area. It also serves to ameliorate the height and bulk of larger blocks of flats in the neighbourhood. The presence of a number of significant trees on the subject site and on surrounding properties also assists to camouflage some of the bulkier elements of the building. In this regard I consider it fortunate that the Golden Cypress in 27 Tintern Avenue obscures a significant frontal view of the building and it is the main reason I have not insisted on stepping the lower section of Dwelling 2 back from its northern boundary.

40

I also note that the existing Cedar tree together with trees on 23 Tintern Avenue obscure the view of the front of the site particularly when viewed from the south-western curvature of Tintern Avenue.

41

Accordingly I consider proper steps such as a tree management plan and supervision of initial construction by an arborist will be essential to ensure that significant trees are retained and where necessary crown reduction and/or other maintenance must be undertaken to the trees to promote their longevity.

42

I have required the removal of most part of the ensuites and part of the walk-in-robes of Apartments 1 and 3 principally to preserve the full canopy of the Dutch Elm tree which is located on 23 Tintern Avenue but overhangs the rear corner of the subject site. Whilst I was satisfied with Mr Galbraith's evidence about measures to protect the critical root zone of that tree I am not satisfied that there has been justification given to reduce the canopy of that tree by 15% simply so that that building structure can be erected to within 2.3 metres of that south-western property boundary. I consider the canopy of the Dutch Elm tree makes a significant contribution to the character of this area and also provides a significant contribution to the amenity of the subject site. Accordingly it will be necessary for the respective ensuites and parts of the walk-in-robes to be relocated within the remaining envelope of those apartments. I have not required removal of the third level balcony as I consider this is adequately offset from the boundary.

43

I have required reduction in the level of the courtyard abutting study to Apartment 1 for the principal reason of helping to protect the critical root zone of trees on the Grimwade's property. This was conceded by Mr Wren at the hearing.

44

I am generally satisfied the landscape plan by Ms Carol Frank-Mas is appropriate. It will complement existing vegetation and the new building. I consider there will be a need for adjustments to the southern court yards and other area to reflect this decision. I have chosen not to make any changes to planting proposed with the exception of the north-western corner of the site.

45

I have allowed the removal of the Eucalyptus maculata principally on the evidence of Ms Frank-Mas and Mr Galbraith. I have done so reluctantly because this tree makes a contribution to the upper canopy vegetation and thereby the character of this area. I note that after this building has been completed the tree will be in a fairly isolated location and that in time maintenance would be somewhat problematic. Having regard to questions I raised about an alternative tree I consider it appropriate to replace the tree with a canopy tree which is capable of growing to about 15 metres at maturity. I consider such tree should be at least 3 metres in height at planting. This would obviously require consequential changes to the landscape layout.

46

I consider there is no need to set the front of the building or sides of the building back from adjoining properties on the basis of visual bulk, mass or setback requirements. I consider the building is well positioned on the site and having regard to other frontage setbacks on other residential development in Tintern Avenue I am satisfied it is a reasonable design response.

47

Similarly I do not consider it is necessary to set the ground level walls back from their southern boundary so as to provide additional landscaping opportunities which would obscure the view from 23 Tintern Avenue. Based on my observation of the subject site from 23 Tintern Avenue there is sufficient landscaping along the Grimwade's site to provide some screening of bulky parts of the new building.

48

I consider the daylight and solar access is appropriate to all apartments and I see no need to make any change to the layout despite some theoretical non-compliance to one room (particularly the courtyard on the northern side of Apartment 1). When viewed in the entirety of the layout of Dwelling 1 which has access to four courtyards, some minor non-compliance is inconsequential.

49

I have required reduction in the level of the footpath and entry to the apartment building so that it is at least 1.7 metres below the height of the fence as presented at the review hearing. This would ensure privacy to parts of the Grimwade's property irrespective of the type of vegetation which may be introduced.

50

I do not consider it is necessary to change the screening devices shown on the upper level windows, decks or court yards, rather it is only necessary to provide more detail about the materials to be used. Whilst Mr Verhoeven implored me to introduce further screening devices to prevent overlooking of the section of area in front of the garage at 23 Tintern Avenue I consider this is unnecessary having regard to this outlook is of the driveway to that garage. It is not primary open space area.

51

I see no need for further screening to upper level balconies that may occasionally overlook into the open space of the ground level apartment. I say this having regard to the level of overlooking which occurs from adjoining properties including the triple storey apartment building to the north at 27 Tintern Avenue. Put simply, this is an area overlooking of adjoining properties occurs. From my observation this apartment building will provide superior privacy with occupants and neighbours.

52

Similarly I am satisfied that a 1.8 metre high front fence is satisfactory and would provide adequate privacy to occupants of those dwellings.

53

I am satisfied the car parking is both functional and adequate to meet the needs of future occupiers and their visitors. I note the number of car spaces meets the requirements of clause 52.06 and the ramp grade can comply with the Australian standard.

54

Similarly I am satisfied that the ramp at between 3.6 and 3.2 metres is appropriate for a five dwelling development which provides 12 vehicles. I have however required the placement of warning lights at strategic locations to assist drivers within the building when they exit the site.

55

For the above mentioned reasons the responsible authority's decision is set aside. I consider the development, as modified by conditions, will be appropriate for the neighbourhood and accordingly a permit shall issue.