Matthies Property Investments Pty Ltd v Stonnington [2013] VCAT 2011

Matthies Property Investments Pty Ltd v Stonnington [2013] VCAT 2011 - VCAT 2013 case summary — Zoe

[35]

In December 2012 Matthies Property Investments Pty Ltd 'the review applicant' applied to Stonnington City Council for a planning permit to construct an aged care facility at 61 Kensington Road, 52 Rockley Road, and 135 and 141 Alexandra Avenue 'the subject site'. Council failed to make a decision about the proposal in the prescribed time. This is deemed under legislation as a refusal to grant a planning permit. In September 2013, Council determined that it would have refused to grant a planning permit on a number of grounds. This was a decision supported by a number of surrounding landowners.
In October 2013, mediation was held between parties. Following mediation amended plans were prepared on behalf of the review applicant and circulated to all parties in accordance with the Tribunal practice note. Council then determined that based on these amended plans, it still opposed the granting of a planning permit, but only on two grounds:
1. That the proposed building height does not meet the objectives of the Design and Development Overlay, Schedule 3 (Yarra River Skyline Area) and is contrary to the mandatory height controls sought by Amendment C155; and
2. The substantial demolition of the interwar flats at 52 Rockley Road will have a negative impact on the heritage streetscape and does not comply with Council's heritage guidelines.
Some surrounding landowners also withdrew their objections. A number of objectors, represented by Mr Pitt, did not seek to make submission to the Tribunal, provided conditions circulated prior to the hearing and the amended plans formed the basis of the Tribunal decision.
Similarly, VicRoads did not seek to make submission, stating in writing prior to the hearing that it accepted the proposal based on the amended plans and specific conditions as circulated.
A number of adjoining landowners remain concerned about the development. These primarily relate to the building form as it faces toward the rear of Rockley Road and Kensington Road, as well as access issues.
From the submissions of Council and the objectors who remain opposed to the development, the key issues we find we need to address are:

[40]

The northern part of the site, including all of 135 and 141 Alexandra Avenue, and a corresponding depth across the frontage of 61 Kensington Road is located within an existing Design and Development Overlay - Schedule 3 (the existing DDO3) of the Stonnington Planning Scheme. This overlay has four objectives:
- To protect areas along the Yarra River from visual intrusion caused by the inappropriate siting or appearance of buildings or works.
- To encourage development in keeping with the character and appearance of the area.
- To protect and enhance the skyline when viewed from the river or its banks, or the Yarra Boulevard in the City of Yarra, or from prominent scenic viewpoints within the valley environs.
- To encourage development consistent with any concept plan approved for the area.
This existing DDO3 then requires a planning permit for any buildings and works over 6 metres high to test if these objectives are met.
Amendment C155 to the Stonnington Planning Scheme seeks to replace the existing DDO3 with a new DDO3 that will apply to the whole site. This new DDO3 has been the subject of a Panel hearing and is currently before Council with a view to adopting a mandatory 12 metre height provision across the front of the site[2], following the line of the existing DDO3 overlay, and introduces a new mandatory 9 metre height provision across the rear of the site, including 52 Rockley Road.
The objectives, of the new DDO3 are similar to the existing DDO3, with added emphasis on:
- recognising the Alexandra Avenue boulevard and Yarra River skyline area as a significant cultural landscape;
- ensuing new development is designed to sit beneath the predominant tree canopy height;
- creating a high quality landscape and built form edge to Alexandra Avenue, the Yarra River corridor and areas of public open space;
- considering the impact of new development on key publicly accessible views of the Yarra River corridor;
- ensuring sufficient space is provided for planting and growth of new vegetation, including large canopy trees;
- designing buildings to reflect the landscape / topographical character of the area; and
- ensuring materials and design details complement the landscape and built form character of the area.
The proposed DDO3 also includes more detailed design guidelines for assessing new development. These guidelines then direct the heights sought with specific direction for buildings to sit beneath the predominant tree canopy height and to recess and articulate upper levels to reduce visual bulk and associated amenity impacts.
Council's opposition to the proposal relates to the height of the building where it exceeds the proposed DDO3 height provisions. The development exceeds the height in two main areas:
- at the 135 and 141 Alexandra Avenue street façade, and
- across the centre of the site where the land slopes away from the upper plateau.
The general intent of Amendment C155 and its objectives is not in dispute between parties. What is in dispute is whether this proposal should then be lowered in height so as to meet the 9 and 12 metre height provisions proposed in Amendment C155 or whether height of the proposed development, which partly exceeds these heights, is acceptable. At the crux of this dispute is whether the height limits, that Council seeks to apply mandatorily through Amendment C155, should be met in this proposal.
The exhibited amendment proposed mandatory height provisions, but the Panel concluded that discretionary height provisions were appropriate. At the hearing we were advised that Council officers still sought to adopt the amendment with mandatory height provisions, but that the officer report to Council had been deferred[3]. As such we are unaware of any formal position of Council in response to the Panel findings.
We must address the planning provisions affecting the site as they stand at the time of decision making. These are the current Residential 1 zoning and the existing DDO3 that applies as a discretionary height limit across the northern part of the site. We must also have regard to any relevant adopted policy of Council and any seriously entertained amendment to the planning scheme.
We therefore find the provisions and objectives of the new DDO3 a relevant consideration. However for reasons we elaborate on below, we find it inappropriate to apply the new, proposed provisions as mandatory requirements for this proposal. In summary this is because:
1. We consider that until Amendment C155 is approved, we cannot assume the provisions will be mandatory. This is particularly in light of the Panel findings.
2. We find exceeding the height limits in this proposal would have no adverse impacts on the broader Yarra River corridor and little impact on the broader character of the area. Conversely, applying the height limits as a matter of principle would significantly impact the capacity of this site to deliver a good design response.

[46]

Mr Biles' evidence concurred with the principle of the change in height provisions of Amendment C155 in defining the upper plateau as having a different character and warranting a different design response. Whilst Mr Biles did not seek to comment on the merit of the DDO3 provisions, he agreed with the Amendment documentation that suggests the break in slope between what he described as the plateau and lower areas is at about 19m AHD. He contended a key difficulty for this proposal was in determining how to address height in what he described as a 'transition' area. This was the area just below the break of slope, but not yet in the flatter Alexandra Avenue lower plateau.
Mr Canavan tabled massing diagrams prepared by Urbis to illustrate where the proposal exceeded the height provisions of Amendment C155. These confirm the difficulty with applying the provisions in an arbitrary manner to this proposal, particularly at the 'transition area'. The key area where the height exceeds the proposed controls is in level 4 of the main western wing of the upper building. The northern façade of this building, that is 10 metres wide, sits just inside the 12 metre height area and will exceed the height limit by approximately 1m on its eastern side and 2.9m on its western side. This is due to the cross fall of the site leaving the western part of the building higher relative to the natural ground level. The majority of the building sits behind this northern façade, inside the 9 metre height requirement area. The southern part of the building sits below 9 metres relative to natural ground level, but increases in relative height as the natural ground slopes down below the break in slope. As such it extends up to 6 metres above the 9 metre height provision (at RL15m), at the western elevation, where it meets the 12 metre height provision. To apply the 9 metre control at this point would, however, have no impact on the Yarra River views if it was still sitting behind a front section of building that could be maintained at 12 metres high, just inside the 12 metres northern height limit area.
We highlight this as an example of why applying the proposed DDO3 as a mandatory tool for this proposal on this complex site, does not necessarily result in a logical outcome. The complexity of the site and slope requires a more careful analysis of the impacts on the Yarra River corridor that is the basis of the DDO provision.
It is not our role to determine whether Amendment C155 should be approved with discretionary or mandatory provisions. Our findings are confined to the proposal before us, and in a context where no final decision has yet been made as to whether the provisions will be mandatory or discretionary. We therefore find the critical question is whether the objectives of the overlay can be clearly met with the heights as identified in the application plans.

[52]

Due to the depth and size of the site, it traverses the different proposed building height provisions as the site extends south, up slope to the upper plateau. The corresponding building is large and traverses the different sections of height requirements stepping up the slope through a series of stacked angled forms. Mr Walker contended the key concern for Council was the height and dominance of the upper levels notably the western 'finger' of the main building on 61 Kensington Road where the building height exceeds the 12 metre building height and the 9 metre building height. He submitted the building would be better broken up into smaller, lower or less intense forms as generally seen on the escarpment at present, with larger landscape spaces in between.
As an aged care building it is not possible for the development to form a series of 'house' forms, or separate buildings up the slope. The state section of the planning scheme explicitly acknowledges that residential aged care facilities are different to dwellings in their purpose and function, and will have a different built form (including height, scale and mass)[7].
The key question is whether the design can still address the DDO3 objectives to provide for landscape space, minimise any adverse impact on the Yarra River environs, despite this need for a larger building form.
As Mr Biles' put in his evidence, the proposed building can be described as a series of offset and stacked, largely transparent boxes that allow the steep slope to be read in the site planning and architecture of the building. His evidence was that the building reinforces the sense of transition out of the lower plateau to the upper plateau with deep incisions in the building form and off set elements to create setbacks and layering of form up the slope.
Mr Walker acknowledged Council was comfortable that the building is a high quality design. His submission was that the building was too tall and therefore was not below the predominant tree canopy line and may impact on the views from the public environs of the Yarra River.
The DDO3 objectives seek to ensure that any new building protects the dominant view lines and Yarra River environs. We find there is no evidence that the building will be excessively dominant due to its form or height. The building is a complex set of layers that we accept enables it to be read as a series of forms up the slope, with intervening landscaping that occurs both in ground and in large planter boxes in the front of the building. This means the building will be read as 2 - 3 storey form up the slope, interspersed with landscaping. This includes retention of some large trees on site, such as a Eucalypt at the rear of 141 Alexandra Ave that will then sit forward of, and soften, the new form to the rear of 52 Rockley Road. The new planting may reach the height of the building both in planter boxes and around the perimeter of the site. Planting in planter boxes has been nominated as 9 metres height to maturity, but we accept Mr Wyatt's evidence that this is a conservative estimate. In any event, the importance of the trees in planters (for example in the front of the level 3 terrace) is to soften and break up the upper level form to the south, when viewed from the Yarra environs which is down slope to the north. A view up from the public environs of the Yarra River will perceive the view of the upper levels through the planting, with the planting gaining a perspective of dominance being well forward of the new upper level building form. When viewed up from the Yarra River corridor, we are comfortable that the building will sit in a landscape context that is similar to its neighbours of large buildings with some large canopy trees.
We also note from our inspection that the existing building on the site that sits at RL32 on the upper plateau does not appear apparently stark or overwhelming in the Yarra River environs. This is despite a current lack of landscaping in front of the dwelling. The new buildings will sit forward of the existing dwelling on site, but will not exceed this existing relative building height. It will exceed the proposed DDO3 height limits, but mostly due to the relative fall of the land as the building comes forward and the slope drops away, creating a relative increase in height from natural ground level. In turn, a new podium of vegetation is proposed so that the more prominent form retains a vegetated setting.
The view of large forms, staggering up the slope is consistent with the existing built form when viewed from the Yarra River environs. The view will be somewhat more intensely urban, but we do not see it in anyway detracts from the river environs in this section of the Yarra River that is already distinctly urban. We find that what will be seen will be a building in context of various building forms sitting on the slope. It will not be distinctly higher or excessively protrude above other forms on the escarpment.
Mr Walker acknowledged that Council maintains a position that the development should, as a matter of principle, meet the proposed mandatory provisions of Amendment C155. For this proposal we do not see there is any material loss to enjoyment of the Yarra River corridor as a result of the height of the development in the form proposed.
However, if the height was reduced in order to maintain the principle supported by Council, it would reduce the capacity to provide level floor plates which is a requirement for aged care facilities. To provide an institutional building in this setting requires some parts of the building to sit somewhat higher than a conventional residential form. To arbitrarily apply height limits through further cutting into the slope or reduced floor to ceiling heights would have adverse ramifications to the internal amenity of the building for no material gain, only a principled point of achieving a numerical standard.
We find the building can sit comfortably on its site in a manner that adequately meets the objectives of both the existing and proposed DDO3 provisions. We find no reason to apply the height provisions of the proposed DDO3 as a matter of principle, given the unresolved status of the amendment, the lack of any detriment to the Yarra River environs resulting from the proposed building form and height, and the possible detriment to building capacity if the building height was arbitrarily lowered.

[54]

Council's second reason for refusing this development was that the substantial demolition of the interwar flats at 52 Rockley Road will have a negative impact on the heritage streetscape and does not comply with Council's heritage guidelines.
No. 52 Rockley Road is a set of three attached dwellings constructed in the late 1930s or early 1940s, around the same time as other clinker brick dwellings and apartments at 49, 51, 54 and 56 Rockley Road. These sites, around the bowl of the court at the end of Rockley Road form part of the defined heritage streetscape, along with a secondary, and we consider separate set of contributory buildings between 36 and 46 Rockley Road, being heritage overlay schedule 46 (HO146).
The evidence of Mr Bick and Mr Lovell was that the significance of the site lay in the streetscape view of the existing building, being the basis of the precinct heritage overlay. Mr Bick's evidence on behalf of Council was that the demolition could not be justified as it failed to meet 'most' of the guidelines for demolition as outlined in Council's heritage guidelines 2002 that are a reference document to the planning scheme.
The primary consideration to determine if demolition is acceptable is the permit trigger as identified in Clause 43.01 of the planning scheme. This requires consideration of the significance of the heritage place and whether the proposal will adversely affect the significance of the place. In doing so, any applicable statement of significance, heritage study and any applicable conservation policy needs to be considered.
The significance of the place is identified in the statement of significance, as articulated by both Mr Bick and Mr Lovell. This makes no specific mention of attached buildings being particularly significant to the area or that this particular building is significant over and above the general streetscape. The building is identified as graded B. B graded buildings are identified in the 2002 guidelines as being locally significant and 'should be maintained as a matter of priority'. The guidelines then identify criteria for the partial demolition of graded buildings. In summary these relevantly include whether the area to be demolished contributes to the heritage value of the building and whether it is visible from the street. It also notes that demolition of fabric to the rear, particularly that which is not visible from the street, is likely to be less of a concern[8].
Mr Bick's evidence acknowledged that 52 Rockley Road "like most of the other dwellings in this location is only visible in close proximity to its site". Further he acknowledged that planting currently conceals much of the front and sides of the building. However, he maintained that if this vegetation was lost the building would be more exposed and a greater proportion of the building to be demolished would be seen as lost in the streetscape.
From our inspection and review of evidence of both Mr Bick and Mr Lovell, we find the sections of building to be demolished results in only a minimal loss of significance of the heritage place, which is the broader streetscape of Rockley Road. This is because:

[57]

In considering the loss of heritage fabric, we also need to consider the impact of the new building form on the significance of the heritage place. This was not specifically part of Council's grounds of refusal, but it is a matter we need to be satisfied about in consideration of the broader planning proposal before us.
Mr Bick's evidence was that he was concerned the new development to the rear of 52 Rockley Road would be highly visible from Rockley Road. His opinion was partly based on photo montages prepared as part of the planning permit application process. These included potential views of the site from Rockley Road with existing trees retained and removed.
Mr Canavan called Mr Potter to give evidence about revised photomontages that were prepared for the tribunal hearing, based on the substituted plans. Mr Potter's evidence was that the original photomontages were inaccurate and did not represent the scale of form that would be viewed.
This also seems to concur with written comments of Council's heritage advisor Mr Statham in his internal referral on the proposal dated 1 June 2013. In his comments he notes that "Initially I had concerns in relation to 3D montage 3.1 provided by the applicants. However, I have revised the site paying careful attention to the setbacks indicated on the applicants drawings and the potential for future landscape to limit the impact of the development on the of the development on Rockley Road. While the new development will be visible for the northern sections of Rockley Road I am satisfied that its impact will be reasonably modest"[9]. Mr Statham went on to accept the partial demolition of 52 Rockley Road and the replacement form proposed.
From our inspection we concur with Mr Potter's evidence and that of Mr Lovell that the original photomontages should not be relied upon as being accurate. As we stated during the hearing, photo montages in any event can only be used as a tool, and their accuracy needs to be carefully tested.
We accept that glimpses of the new building will be seen from Rockley Road, particularly when viewed from the north east corner of the court bowl. Close to the site views of the new form will be hidden by the retained front dwelling and trees. Further south along Rockley Road the landform and siting of 52 Rockley Road means the form will also generally not be seen. What is likely to be seen will be glimpses of modern form, well behind the retained heritage form.
There is nothing within the provisions of the planning scheme or Council's heritage guidelines that requires new form to be hidden from complete view of the street. The key question in the planning scheme is whether any new form will dominate or overwhelm the retained heritage fabric.
We accept Mr Lovell's evidence that the new form will be sufficiently set back and behind the retained form that it will be barely seen from the street and not in anyway that can be seen to significantly diminish the significance of the heritage place which is the Rockley Road streetscape and public walkway at the north end of the street.

[62]

The owners of 46 - 50 Rockley Road expressed concern about the visual bulk of the western façade of the development in the Kensington Road property as well as the wing of the development that extends into the rear of 52 Rockley Road, north of 50 Rockley Road.
Mr Governlock's evidence was that he was satisfied the building suitably addressed the relevant tests of the planning scheme. This was primarily because he contended it mostly met the standards of Clause 55 of the planning scheme, which is the general test for more than one dwelling on a lot or a residential building. He contended that because the building is institutional, balance needed to be struck between what might be expected for a conventional apartment or townhouse form on the site, and the needs of an aged care facility. He acknowledged that the blank wall façade to the staircase and 'clinical coordinator' room to the north of 50 Rockley Road could require some review in its presentation.
During the hearing it became apparent that the substituted application plans contained some minor errors in the notation of side setbacks. The project architect Mr Masci confirmed that the side setback should be 5 metres, or 4.7 to the screen edge near the northern interface with 50 Rockley Road, not 3.7 as notated on plan, with the southern part of the western elevation setback 7.4 metres, not 6.4m as notated on plans. The corrected measurements correlate with a scaling of plans and the various elevations and cross sections of the building that illustrate the correct setback distances.
Mr Hunter submitted it was unacceptable that errors were still being found on plans so late in the process. It is unfortunate that errors remain on the plans, but we accept that the errors are minor. They are also acknowledged by the permit applicant as needing to be corrected in the objectors favour, being larger than notated on floor plans.
Based on the corrected setback notations western façade, within 61 Kensington Road of 5 metres and 7.4 metres we find the proposal meets the numeric standards of Clause 55 in relation to side and rear setbacks. More critically we find the visual bulk of this western façade meets the objectives in relation to visual bulk. This is because:

[69]

The proposed building somewhat 'wraps around' the rear yard of 50 Rockley Road with the Kensington Road site extending into the rear of 52 Rockley Road, north of 50 Rockley Road.
To the north of 50 Rockley Road, the proposed building is 12 metres high, or approximately 10.5 metres high relative to the rear yard of 50 Rockley Road that has its rear yard at approximately RL 21.5. The proposed building will sit at a base floor level of RL 20. The proposed building then steps down to a two storey form, that will be similar in height to the existing building retained at the front of 52 Rockley Road. The proposed building will be separated from the retained building by approximately 6 - 7 metres, with a 3.5m wide single storey flat roof garage sitting in this gap, attached to the rear of the retained dwelling at the front of 52 Rockley Road.
The proposed aged care building form at the rear of 52 Rockley Road will be closer to the rear yard of 50 Rockley Road than the existing brick dwellings at 52 Rockley Road, being setback at least 4.6m and partly setback 5.5 metres from 50 Rockley Road. During the hearing we raised particular concern about this interface given the potential enclosure of the rear yard space at 50 Rockley Road from the building. Having reviewed all the submission and evidence in relation to this matter and visited the rear yard of 50 Rockley Road at both the accompanied inspection and again, unaccompanied, after the hearing we have formed a view that the height and setback are acceptable, subject to minor modification to the stairwell and clinical coordinator rooms to reduce the blank wall presentation of this façade. Our reasons for this are as follows.
The existing interface between 50 and 52 Rockley Road at its rear provides a somewhat fortuitous aspect for 50 Rockley Road due to the level change and the current location of a garage in the rear corner of 52 Rockley Road reducing any vegetation or need for excessive fencing in this corner. This provides a greater outlook and direct sunlight into the rear yard of 50 Rockley Road than would normally be anticipated for a rear yard, and is not a situation that we consider should be expected to be maintained in perpetuity.
The main outdoor living area including in-ground pool and aspect of the rear of 50 Rockley Road is to its direct east where it enjoys greater privacy and usable open space, being directly linked to the main internal living spaces. This is well away from where the proposed building form is to be located. The proposed aged care building form will add to the visual intrusion and bulk of form close to the north east corner of 50 Rockley Road, but we find the imposition acceptable as it offers some compromise or advantage to the overall amenity of 50 Rockley Road. This is because:

[73]

Mr Rudd submitted on behalf of his mother who owns unit 4 at 54 Rockley Road that the development will be excessively bulky, overlook and limit views from this adjoining property.
A statement of grounds was also received from Mr Hollibore expressing concern about overlooking and loss of sunlight to a residence owned at 54 Rockley Road. The statement of grounds does not elaborate which dwelling he owns within the apartment building at 54 Rockley Road.
The apartment building at 54 Rockley Road sits well below the existing building at 52 Rockley Road and has its main view and aspect to the north west, away from the subject site. The rear eastern part of 54 Rockley Road is used as a car park and also includes a small garden close to the building that is used for clothes drying. The direct interface to 61 Kensington Road is a small rear corner of the site that is approximately 5 metres long. At this point the proposed building is at its highest and perhaps most dominant to an adjoining neighbour. However, it is at this point that the direct interface to the building at 54 Rockley Road is furthest away and sitting behind the service and car park area. The main outlook from the living and balcony areas of the apartment building at 54 Rockley Road are not significantly impacted as these face north west away from the proposed building.
The rear corner of the building at 54 Rockley Road is approximately 20 metres at its nearest point to the rear of 135 Alexandra Avenue. The building form at 135 and 141 Alexandra Avenue sits somewhat lower than the building at 54 Rockley Road and will be of a similar height to that of the existing building at 131 Alexandra Avenue that sits more in the direct line of view from 54 Rockley Road toward the Yarra River. The aspect of the existing apartment building is already limited by existing vegetation and building sitting directly between the building and the river.
We are satisfied that the bulk and visual intrusion from the Alexandra Avenue buildings will be minimal and softened by the extent of existing landscaping between the existing and proposed buildings as well as the retention of the large Eucalypt at the south east corner of 141 Alexandra Avenue. From our view of material we do not see the proposed development will result in any loss of daylight or overshadowing to 54 Rockley Road due to the position of buildings between sites.
The more prominent interface from 54 Rockley Road will be from the new form to its south east, at the rear of 52 Rockley Road. The proposed building will sit somewhat closer to 54 Rockley Road at this south east boundary, but again interfaces to an area that is used clearly as service yard and car parking only. The new building has opportunity to be well landscaped and the visible section of building will be of a similar height to the existing building at 52 Rockley Road. The upper, third level will be recessed at this interface to the extent that it will be barely, if at all visible from the rear yard of 54 Rockley Road due to the wall of the first and second levels combined with the angle of view.
As the proposed form at 52 Rockley Road will sit south east 54 Rockley Road there are no shadows cast over the site at 54 Rockley Road or any loss of daylight to habitable windows. We are also satisfied that with appropriate landscaping of the 5 metre section of Kensington Road site façade and the northern façade of the Rockley Road wing, that the objectives for visual bulk are suitably addressed.
Mr Rudd and the written statement of grounds of Mr Hollibore also contended the new building will overlook 54 Rockley Road. We reiterate our general comments about overlooking as explained in relation to the western façade to 46 - 50 Rockley Road above. With this we note that the second level includes screening below 1.7 metres from finished floor level. Our reading of plans is that the upper level does not include screening. We find this acceptable in light of our general comments above, and that this level is recessed by 3.3 from the lower level. As such the direct views down to the rear of 54 Rockley Road are limited due to the building form of the lower levels.

[109]

Consent to build over any easement must be obtained from Council's Building Control Unit prior to a building permit being issued for any works over the easements.
Prior to any building permit issuing for any works over the easements and prior to Council's Building Control Unit issuing its consent to build over any easement the owner must enter into a Section 173 agreement for building over easements to the satisfaction of the Responsible Authority. This will include the requirement that all costs including those of Council, associated with the agreement be paid by the owner.
Prior to the development commencing, formal approval must be obtained from Council's Infrastructure Unit for the physical relocation of the stormwater drainage system on the site in accordance with the variation of easement allowed by this permit. A plan prepared by a suitably qualified engineer must be submitted and approved by Council. The stormwater drainage system must be constructed at the owner's cost in accordance with the approved plan under the supervision and to the satisfaction of the Responsible Authority.
The variation of easement allowed by this permit must be registered at the cost of the permit holder prior to any building permit being issued for the works and prior to an application being made for consent to build over the easements.
A temporary storm water drainage system must be in place and maintained within the site for the beneficiaries of the easement at all time during the construction and building works to the satisfaction of the Responsible Authority until such time as the relocated easement and assets are fully operational.
A report for the legal point of discharge must be obtained from Council and a drainage design for the development must be prepared in accordance with that report by a suitably qualified Engineer prior to a building permit being issued.
Prior to the endorsement of the plans, any works impact o the embankment must be assessed by a suitably qualified engineer appointed by Council. That assessment must be based on a geotechnical report and must demonstrate that the works will not result in any detriment to public or private land as a result of the proposed works to the embankment in and abutting Alexandra Avenue. All works on public land must be to the satisfaction of the Responsible Authority.
Concurrent with the endorsement of plans, a Car Park and Traffic Management Plan must be submitted to the satisfaction of the Responsible Authority. The Car Park and Traffic Management Plan must include, but not be limited to:

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Drained and maintained to the satisfaction of the Responsible Authority. 2. Linemarked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority. Parking areas and access lanes must be kept available for these purposes at all times.
The development must be provided with lighting capable of illuminating access to each car parking space, bicycle parking space, store, refuse areas, pedestrian walkways, stairwells and lifts. Lighting must be located, directed, shielded and of limited intensity so that no nuisance or loss of amenity is caused to any person within and beyond the site, to the satisfaction of the Responsible Authority.
Prior to the occupation of the development, the car spaces hereby approved must be made available and used by residents, visitors and staff of the residential aged care facility at all times. No fees may be imposed for the use of the spaces to the satisfaction of the Responsible Authority.
Prior to the occupation of the development, no fewer than 59 car spaces must be provided on the land for the exclusive use by the residential aged care facility.
Vehicle access to the site must at all times be provided from Alexandra Avenue, with the exception of maintenance vehicles and fire trucks via Kensington Road.
No pedestrian access to be provided to the site from Kensington Road and Rockley Road, except for emergency egress.
The loading and unloading of vehicles and the delivery of goods to and from the premises must at all times be conducted entirely within the site and in a manner that limits interference with other vehicular traffic to the satisfaction of the Responsible Authority. All loading and unloading is to occur via use of the Alexandra Avenue access.
All loading and unloading of goods must be undertaken in accordance with Council's Local Laws.
Prior to the occupation of the development, any existing vehicular crossing made redundant by the building and works hereby permitted must be broken out and re-instated as standard footpath and kerb and channel at the permit holders cost to the approval and satisfaction of the Responsible Authority.
Concurrent with the endorsement of the plans, a Landscape Plan to be prepared by a landscape architect or suitably qualified or experienced landscape designer, must be submitted to and approved by the Responsible Authority. When approved, the landscape plan will be endorsed and will then form part of the permit. The landscape plan must be drawn to scale with dimensions and three copies must be provided. The landscape plan must be generally in accordance with the landscape concept plan, prepared by ERM dated October 2013, but modified to show::

[132]

The use and development must be managed so that the amenity of the area is not unreasonably detrimentally affected through the transport of materials, goods or commodities to or from the land, appearance of any building, works or materials to the satisfaction of the Responsible Authority.
The ancillary uses within the aged care facility such as, but not limited to, all recreational facilities, the cafe, day spa and hairdresser are to be for the exclusive use of the residential aged facility at all times. These services are not to be provided to the general public.
All external lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the Responsible Authority.
Prior to the occupation of the building, privacy screens designed to limit overlooking as required in accordance with the endorsed plans must be installed to the satisfaction of the Responsible Authority and maintained to the satisfaction of the Responsible Authority thereafter for the life of the building
All plant and equipment (including air-conditioning units) shall be located or screened so as not to be visible from any of the surrounding footpaths and any part of adjoining properties and shall be baffled so as to minimise the emission of unreasonable noise to the environment in accordance with Section 48A of the Environment Protection Act 1970 and comply with the Environment Protection (Residential Noise) Regulations 2008 at all times to the satisfaction of the Responsible Authority.
Concurrent with the endorsement of plans under Condition 1, the applicant must provide a Water Sensitive Urban Design Response addressing the Application Requirements of the draft Stormwater Management (Water Sensitive Urban Design) Policy to the satisfaction of the Responsible Authority. This response is to include details on the management and maintenance regimes for the operation of rainwater tanks on the site.
The project must incorporate the Water Sensitive Urban Design initiatives detailed in the endorsed site plan and/or stormwater management report.
Unless with the prior written approval of the Responsible Authority, the owner of the land must retain Bates Smart Architects to provide architectural and landscape oversight of the delivery of the detailed design, as shown in the endorsed plans and endorsed schedule of materials and finishes, during construction of the development.
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 permit holder and subject to the relevant authority's consent.
All utility services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority by completion of the development.
Prior to occupation, access for persons with disabilities must be provided in compliance with the Disability Discrimination Act 1992 and such access must be maintained at all times the building is occupied or in use.
No noise generating plant shall be located on the roof other than a stair pressuration fan(s) and air conditioning condensing units.
All exhausts will be fitted with fans designed with an increased extraction airflow rate and directed away from neighbouring properties. Kitchen exhaust system(s) must be fitted with grease and charcoal filters and be located relatively central to the site. Odours must not be permitted to be detrimental to the amenity of any adjoining land.

At a glance

Court

Decision date

Before

Source

Judgment (147 paragraphs)

Matthies Property Investments Pty Ltd v Stonnington [2013] VCAT 2011 (27 November 2013)

Parties

Legislation Cited (6)