61 Kensington Road, 52 Rockley Road, 135 and 141 Alexandra Avenue, South Yarra

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

1. Leave is given to the applicant to substitute for the permit application plans, the following plans:

TP01.01C, TP01.02E, TP01.03C, TP02.00B,TP02.01F, TP02.02E, TP02.03E, TP02.04F, TP02.05F, TP02.06F, TP02.07E, TP02.08D, TP02.09D, TP05.01E, TP05.02D, TP05.03D, TP05.04C, TP08.00D-TP08.06D, TP08.07C, TP08.08C and TP08.09C

1. The decision of the Responsible Authority in permit application no. 0913/12 is set aside.
2. A permit is granted for land at 61 Kensington Road, 52 Rockley Road, 135 and 141 Alexandra Avenue, South Yarra. The permit will allow:
   • Demolition of buildings in a Heritage Overlay.
   • Construction of buildings and works for an aged care facility in a Residential 1 Zone, Heritage Overlay and Design and Development Overlay (Schedule 3).
   • Alteration of access to a Road Zone Category 1.
   • Variation and removal of an easement.

in accordance with the endorsed plans and subject to conditions contained in Appendix A to these reasons.

Mr Chris Canavan QC with Ms Emma Peppler, barrister, both on brief from Ms Sophie McGuiness of Minter Ellison. They called the following witnesses:

• Mr Tim Biles, town planner of Message Consultants.
• Mr Allan Wyatt, landscape architect of ERM.
• Mr Jamie Governlock, town planner of Urbis.
• Mr Peter Lovell, architectural historian of Lovell Chen.
• Mr Ian Potter, photographic and graphic designer of Bates Smart Pty Ltd.

Mr Kevin Masci, project architect also attended to respond to questions about plan details.

Written evidence of Ms Charmaine Dunstan, traffic engineer and Mr Phil Gardiner, structural engineer was also circulated. With the agreement of parties they were not called to present their evidence or answer questions.

Mr Andrew Walker, barrister on direct brief. He called the following witness:

Dr John Owen (Day 3 - and at accompanied in inspection)

For M and L Richards, J Allen, J Kantor, Dr S and Mr B Kotevski, S Cameron, J and K Edwards, T and A Probert and R and J Garnsworthy.

Mr Ian Pitt SC, solicitor of Best Hooper Solicitors. He attended the opening of the hearing only to advise his clients would not make submission based on acceptance of the plans substituted and conditions circulated.

Attended on day 1 of the hearing but made no oral submission.

For D Pethard, D and B Sutherland, T Petersen, A Hollibone, R Pagano, G and H Harper, S Voglis, V Singal, D Buckley, A Sharif, J Schulberg, J and L Day, V Graham, M Hiscock, S Marasco, R Joubert, E and M Houlihan, B Woodgate and Y Fong

Aged care facility to accommodate 83 beds in 81 suites. A number of communal facilities are provided. The building comprises four 'fingers' extending north-south toward Alexandra Avenue. Of these, two are shorter at 135 and 141 Alexandra Avenue, connecting to two longer forms at 'stacked' angles stepping up the slope at 61 Kensington Road. A fifth 'finger' extends into the rear of 52 Rockley Road, through demolition of the rear of the building on this lot. The front dwelling on this lot is retained.

The proposal includes an altered access to Alexandra Avenue with new slip lane to enter a basement car park and visitor entry. A delivery access (only) is provided from Kensington Road via an existing driveway. No vehicle access is provided from Rockley Road. All pedestrian and vehicle visitor traffic is from Alexandra Avenue.

Application under Section 79 of the Planning and Environment Act 1987.

Design and Development Overlay - Schedule 3, applies only to the sites fronting Alexandra Avenue and across the front of 61 Kensington Avenue.

Heritage Overlay - Schedule HO146 (Rockley Road) and Schedule HO64 (61 Kensington Road).

Cl 32.01 - 4: Construction of buildings and works for a Residential Building (includes Residential Aged Care) in a Residential 1 zone.

Cl 43.01 Demolition and construction of buildings and works in HO146 and HO64.

Cl 43.02 (Schedule 3): Buildings and works over 6 metres high.

Cl 52.29 Alteration of access to a Road Zone Category 1.

Clauses 10, 11, 11.04-8, 12, 15.01, 15.03, 16.02-3, 18 19, 21.02, 21.03, 22.02, 22.04, 32.01, 43.01, 43.02, 52.02, 52.29, 55 and 65.

The land is irregular in shape and comprises four lots with a combined area of approximately 7,900 sqm. No. 61 Kensington Road is the largest of the lots extending from Alexandra Ave, rising up to a ridge that extends near the Kensington Road entry. The land is occupied by a 1980s large dwelling ('St Cloud') that was constructed in the foreground of 'Bona Vista' heritage dwelling now located on a separate lot. 135 Alexandra Ave contains a double storey brick residential building. 141 Alexandra Ave contains a three storey brick residential building. 52 Rockley Road has three attached, double storey dwellings that form part of the Rockley Road heritage precinct.

The land is surrounded by a number of large homes and other apartment forms on Alexandra Avenue. Across Alexandra Avenue is the Yarra River environs and the Monash Freeway.

We undertook an accompanied inspection as part of the hearing on 12 November 2013. We undertook an additional, unaccompanied inspection after the hearing on 15 November 2013.

Watkins v Boroondara CC (includes Summary)(Red Dot) [2013] VCAT 824

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. From the submissions of Council and the objectors who remain opposed to the development, the key issues we find we need to address are:

1. Does the height of the development sufficiently meet the objectives of the Design and Development Overlay - Schedule 3 affecting the land? 2. Is the demolition of part of 52 Rockley Road acceptable?

1. Does the proposal result in unreasonable amenity impacts on adjoining properties in Rockley Road?

1. Are amenity impacts to Kensington Road properties acceptable? 2. Are the car parking and access arrangements adequate? 3. Do any other matters warrant rejection of the proposal?
2. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Stonnington Planning Scheme, we have decided to direct that a planning permit issue. Our reasons follow.

Does the height of the development sufficiently meet the objectives of the DDO3 affecting the land?

1. 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.
2. This existing DDO3 then requires a planning permit for any buildings and works over 6 metres high to test if these objectives are met.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.

Does the current status of Amendment C155 require us to address the new DDO3 provisions as mandatory controls?

1. Both Council and the review applicant provided us with submission and extract from the Amendment C155 Panel report in which there was extensive discussion of whether mandatory height limits should apply along this section of the Yarra River. Of particular relevance, we find are the Panel's comments on Page 27 of its report where it states:

The Panel also agrees with Mr Sheppard that there are significant variations in topography and viewpoints, and that it is 'impossible' to identify a maximum height that can be universally applied. This is borne out by those recent developments that are above 12m but appropriate for their site and broader context. These examples confirm the benefits of having a more flexible approach to building heights in this area. (Pg. 27)

1. There was general agreement amongst parties at the hearing that this site is complex in its topography and its topographical relationships with its adjoining sites and the Yarra River. Mr Biles' evidence affirmed the evidence referred to by the Amendment C155 Panel that the topography and viewpoints vary. This includes the lower, Alexandra Avenue context where most buildings now exceed the 12 metre height limit, but sit comfortably in the street and river context.
2. This was confirmed through tabling of plans for various developments along Alexandra Avenue that are closer to 14 to 15 metres high from natural ground level. Some of these have now been constructed and sit comfortably in the streetscape and river context. This is because they remain below the dominant tree canopy line of street trees in Alexandra Avenue and because the buildings sit at the base of a rise, along a view line of the Yarra that has a strong urban context.
3. The Panel also commented on the proposed 9 metre mandatory height provision stating:

While the Panel understands the rationale for this 9m height, it should not be a mandatory provision. This is also a diverse area and presents a number of design challenges and opportunities, particularly for those properties at or near the top of the escarpment. It is an area that warrants flexibility so that designs can respond to the variation in characteristics from site to site. While seeking to emphasise the top of the escarpment and the topography of the river valley are reasonable design aspirations, the Panel is satisfied that they can be achieved without a mandatory maximum height. (Pg. 28)

1. 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.
2. 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.
3. 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.
4. 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.

Can the proposal meet the objectives of the existing and proposed DDO3 provisions?

1. Along this section of Alexandra Avenue the Yarra River environs is quite urban. Evidence and submission from parties at the hearing was that this site was not like more bush settings of the Yarra River, such as Coppin Grove Hawthorn, where different expectations and planning provisions apply[4]. We agree that the setting in this location is 'Urban Residential' as described by the 2005 Yarra River corridor study undertaken by Planisphere and which forms a background document to Amendment C155. Our inspection confirmed the evidence of Mr Wyatt and Mr Biles that views of the site from Alexandra Parade, the bike trail and the general Yarra River environs needs to be read in context of all the urban form that exists in this area. This includes 3 - 4 storey apartment forms along Alexandra Avenue, leading to more intense forms at the intersection of Chapel Street. It also includes views across the Yarra to the City link / Monash Freeway and the Richmond electricity station. The strong linking elements are the plane trees along Alexandra Avenue, the public environs and the existing built forms.
2. The site itself is somewhat hidden, particularly from an eastern approach along the Alexandra Avenue / Yarra River public environs. This is due to the escarpment directly to the east of the site. From the east, views when walking or driving along Alexandra Avenue are toward the city or Richmond, with the site somewhat 'tucked away' to the side view.
3. The more prominent views of the site are from across the river, standing on either Herring Island or the pedestrian / cycle path in Richmond, below the City link Freeway. From here the site is quite visible, as are the built forms surrounding the site. These include modern large houses directly to the east and west, up slope and the apartment buildings along Alexandra Avenue. Views also extend toward the city and include backdrop views of tower forms in the South Yarra Forest Hill precinct.

1. Mr Walker acknowledged the height at the Alexandra Avenue interface was less of a concern to Council due the extent of the building in the area and existing approvals for the site. He also acknowledged that written comments from Council's urban designer about the proposal state:

"The stepped form of the building relates to the topography of the site; and the form and scale of the linked 'pavilions' addressing Alexandra Avenue is well considered and reinforces the scale and rhythm of many of the existing developments along the river edge[5]".

1. A number of sites along this section of Alexandra Avenue have been the subject of recent permits for three and four storey development. This includes an existing permit for development on 61 Kensington Road for a development up to RL21 near the rear of the site, being a staggered five level building up the slope.
2. The section of proposed building that exceeds the 12 metre height limit near the Alexandra Avenue frontage is mainly the upper 2.5 metres of the two buildings proposed at 135 and 141 Alexandra Avenue. The area above the height limit generally forms upper level balconies with overhanging eaves. The main façade of building will sit at a height of RL 19.5 which is the same height of the constructed four storey building directly to the west at 131 Alexandra Avenue.
3. We agree with the evidence of Mr Biles and Mr Wyatt, which in turn reflects the written comments of Council's urban designer[6], that the scale and rhythm of building proposed to face Alexandra Avenue can sit comfortably in the streetscape and the Yarra River environs. The building will be seen from sections of the Yarra River environs, but it will sit below the predominant canopy of plane trees along Alexandra Avenue and will sit at a similar height and setting to other buildings already visible along this section of the river.
4. We therefore accept the building height and form at the front of the site where it faces Alexandra Avenue.

1. 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.
2. 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].
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.

Is the demolition of part of 52 Rockley Road acceptable?

1. 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.
2. 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).
3. 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.
4. 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.
5. 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].
6. 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.
7. 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:

1. The views of the rear of the building are limited due to the layout of the building. We accept Mr Lovell's comments that whilst there are three buildings on the site, and this is somewhat unusual for the era, from the streetscape the building reads primarily as a single dwelling, being the front dwelling to be retained. The only view of the rear two dwellings is of glimpses of the chimneys and receding side wall to the north, both of which are only read in very specific views of the site from exact points in the Rockley Road court bowl. These views are confined due to the small street frontage of 52 Rockley Road and the slope down from both the front of the site to the rear, as well as the slope down the court bowl of Rockley Road. For much of the Rockley Road streetscape, No. 52 is barely seen and the rear of the building is not seen at all. 2. The views to be altered as a result of the demolition sit in context of a heritage streetscape that already includes many other modern forms to the west of Rockley Road and non contributory buildings such as 48 and 50 Rockley Road.

1. Whilst vegetation currently screens part of the rear of the site, this is not being removed and will remain part of the streetscape context. This vegetation is not protected as part of the heritage overlay, but larger vegetation is protected by Council's local laws and is proposed to be maintained in the development.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

1. No. 61 Kensington Road, where the major part of the building is located is affected by HO64. This overlay relates to the individually significant building at 51 - 59 Kensington Road, 'Bona Vista'. Our reading of Mr Bick's evidence was that he was not asked to review the proposal as it related to this overlay, given the grounds of refusal by Council.
2. The written comments of Mr Statham as Council heritage advisor were supported by the evidence of Mr Lovell that the individual significance of HO64 is not derived from any buildings or setting of 61 Kensington Road and that redevelopment of the site to the north of 'Bona Vista' raises no substantial heritage issues.
3. Given this was not disputed by any party to the hearing we accept the evidence of Mr Lovell, which in turn accepts the comments of Mr Statham, that the proposal raises no concerns in relation to HO64 that applies to the site.

Does the proposal result in unreasonable amenity impacts on adjoining properties in Rockley Road?

1. A number of residents oppose the development due to the amenity impacts on their surrounding properties. The main submissions elaborated on by residents at the hearing came from the owners of properties at 46, 48 and 50 Rockley Road as well as the owners of one of the dwellings within the apartment building at 54 Rockley Road. These issues related to visual bulk, overlooking, overshadowing and loss of views from unit 4 of 54 Rockley Road. We address each of these issues in turn below.

Visual Bulk and overlooking from the western façade of 61 Kensington Road

1. 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.
2. 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.
3. 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.
4. 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.
5. 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:

1. The western elevation is broken up into two sections, with a deep recess mid way through the rear yard interface to 50 Rockley Road. This breaks up the form and enables a large canopy tree to be located in the recess reducing any sense of bulk or continuous built form. 2. The western elevation will be somewhat hidden and well recessed behind an already high boundary fence between the properties. Mr Canavan submitted it was the intention of the permit applicant to retain this fence where structurally possible. The actual change in aspect from the adjoining rear yards will be reduced through retention of this fence.

1. There is significant natural ground retained along the 5 - 7.4m side setback for landscaping that can soften the building form.

1. The form, particularly to the rear of 50 Rockley Road, where it sits closest to the boundary extends not significantly closer or longer than the existing 'St Cloud' dwelling located on the site. This section of new building sits north from the main outdoor living space of the rear of 50 Rockley Road. The existing 'St Cloud' dwelling presents as a blank wall façade to this existing rear yard interface with haphazard landscaping within the subject site.
2. We therefore agree with Council's conclusion that substituted application plans adequately address visual bulk along its western façade.
3. Residents of 46 - 50 Rockley Road also questioned if additional screening to upper level windows of the aged care facility was needed to reduce overlooking into their rear yards. The western elevation identifies that all upper levels are screened below 1.7m of the finished floor level of these dwellings. The overlooking tests set out in the planning scheme are therefore met. We also note that even without such screening, the capacity to overlook into rear yards is quite limited due to the existing height of the intervening fence, relative to the height of the third level and setback of the building, particularly in the southern section where the building is setback 7.4 metres from the western side boundary. The capacity to excessively overlook is also limited by the form of accommodation. Aged care residents reside in such facilities due to their incapacity to care for themselves at home. As such they usually have limited mobility and we observe that having some physical, cognitive or visual impairment limits their capacity to use lounge, dining or outdoor spaces in an excessively lively, noisy or intrusive manner.
4. We therefore concur with previous comments of the Tribunal in Eastberry Aged Care Pty Ltd v Glen Eira CC where Senior Member Baird and Member Keddie found:

"We have considerable difficulty with the notion that extensive screening is required to windows ........given the separation distances from most private open spaces and the nature of the occupation. The residents will requiring (sic) a significant level of care and this will be their home. Some will spend a considerable amount of time in their rooms and the prospect of extensive screening will not enhance their amenity. Some will have poor sight and/or impaired cognitive abilities". ...

We therefore think a flexible approach to screening is valid ..[10]"

1. Concerns were also expressed by Rockley Road neighbours about unreasonable overshadowing. The 'test' included in Clause 55 of the planning scheme is at the equinox - not the winter solstice. On the basis of the diagrams showing shadowing at the equinox, we consider that shadowing of the neighbouring properties is acceptable based on that 'test'.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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:

1. The protrusion of the staircase and 'clinical coordinator' rooms reduces any overlooking or sense of overlooking from the glassed bridge walkway between the main building and the Rockley Road wing. Mr Cavanan submitted that if we were particularly concerned about the bulk of the staircase and coordinator rooms these could be reconfigured to be slightly setback and the upper level slightly reduced in height. We consider on balance that the minor benefit that would be gained in reduced bulk would be outbalanced by the increased sense of overlooking or exposure to the glass walkway that would occur. The clinical coordinator room appears to be a deliberate design response to shield No. 50 Rockley Road from this glassed walkway. 2. Whilst the building form at the rear of 52 Rockley Road will reduce some amenity at 50 Rockley Road it will be balanced by a reduction in building form and bulk in the centre of the site with the demolition of the rear of the existing building on site and its replacement with a low profile garage and landscape strip between the old and new buildings. This will open up the aspect of the living room and bedroom areas of 50 Rockley Road that look over toward 52 Rockley Road at this 6 - 7 metre wide central section of the site.

1. The new building form will include a significant landscape space on the southern side of the building between it and 50 Rockley Road to soften the view of the building from 50 Rockley Road.

1. The shadow diagrams provided that form part of the substituted plans show the correct title boundary and confirm that whilst some additional shadow will occur to the rear garden of 50 Rockley Road it easily meets the standards of Clause 55 of the planning scheme. We acknowledge the shadow is to the active vegetable garden of 50 Rockley Road. However, this garden's lack of existing shadow only results because of unusually low or transparent fencing and the lower garage directly abutting the site to the north.
2. We do, however, find that some better articulation of the south / south-eastern wall, as it interfaces to the rear of 50 Rockley Road, is needed. The application plans identify the stairwell and clinical coordinator section of wall as "soft grey rendered concrete wall". Mr Governlock acknowledged that this interface may 'need some work'. Mr Cavanan and Ms Peppler tabled some additional cross sections of this part of the Rockley Road wing suggesting the staircase could include opaque glazing. The application plans indicate that at upper level there are currently no windows to the south elevation toward 50 Rockley Road. We agree that one means of improving the impact of the southern façade would be to introduce glazing into the stairwell. If any windows are to be located on this façade, however, they should be opaque and used as a means of façade articulation, rather than outlook, particularly given the likely unsightly, service nature of the stairwell. This is a matter of design detail we are satisfied can be addressed through an appropriate condition on permit as we have directed in Appendix A.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

Are amenity impacts to Kensington Road properties acceptable?

1. A number of statements of grounds were received from residents in Kensington Road raising concern about the visual bulk and amenity impacts to properties in Kensington Road. None of these objectors made submission to the Tribunal hearing and the most closely affected properties were represented by Mr Pitt. He advised at the commencement of the hearing his clients would not make any opposing submission to the development based on the substituted plans and the draft permit conditions circulated.
2. Council in its submission also advised that it found the amenity impacts to all adjoining properties suitably resolved.
3. From our review of the substituted application plans we are satisfied that issues of overlooking, bulk and any potential overshadowing to the Kensington Road properties have been adequately addressed in the substituted plans.

Are the car parking and access arrangements adequate?

1. A number of objectors provided statements of grounds that they were opposed to the development due to the increased traffic and car parking that would eventuate in Kensington Road and Rockley Road.
2. The application plans substituted at the commencement of the hearing provides for access only from Alexandra Avenue (other than delivery access via an existing driveway to 61 Kensington Road). It also includes additional car parking meaning the permit application does not include any requirement to waive or reduce the car parking provisions of clause 52.06. As such the only matter of consideration before is whether the access is suitable, convenient and safe.
3. VicRoads advised by a letter dated 25 October 2013 that it did not contest the review application based on the circulated application plans for substitution and conditions detailed in the letter.
4. Dr Owen submitted he remained concerned that the access from Alexandra Parade would not be sufficiently safe for people visiting their parents in the facility. Whilst we acknowledge Dr Owen's concerns, we accept that the relevant authorities and traffic experts have reviewed and determined the access arrangements safe. We have no reason to defer from this expert opinion of Ms Dunstan or VicRoads.
5. With all the vehicle access (other than minor service deliveries from Kensington Road) we are also satisfied that the numerous written submissions about additional traffic in Rockley Road and Kensington Road are addressed. This is because there will be no added traffic in Rockley Road and only minor, service vehicle based traffic to Kensington Road.

Do any other matters warrant rejection of the proposal?

1. Written submissions questioned if the character of Kensington Road or Rockley Road would be significantly changed as a result of the development. We find the character of both streets will remain generally the same. Glimpses of the building will be possible through the rear of properties, notably in Rockley Road, but we see this will be little different to the glimpses of modern form already visible. This includes views of the existing 'St Cloud' dwelling at 61 Kensington Road that sits at a similar height (albeit on smaller footprint) and other various 3 storey apartment buildings along Rockley Road that dominate the streetscape.
2. From Kensington Road we do not see that much, if any of the development will be visible. If glimpses are provided we do not see that they will in any way significantly detract from the character of Kensington Road. This position is reinforced in the Council officer consideration of the original application plans, where in a report to Council dated 2 September 2013, the officer noted:

The building will not be visible from the south in Kensington Road due to the substantial setback (41 metres) and additional plantings that are proposed. The new development will have no appreciable impact on the residential character of this streetscape.

1. The proposal includes sufficient room for perimeter landscaping and new planting in roof top planter boxes to ensure the general green leafy nature of the area is maintained. As such we are satisfied that the general urban design and landscape objectives of the Stonnington Planning Scheme are suitably addressed.

1. For reasons outlined above it follows that we will set aside the deemed refusal for this proposal and direct that a planning permit be granted subject to conditions.

1. A number of matters about permit conditions were raised by the parties at the hearing. We have adopted draft conditions as circulated during the hearing with some minor changes. Mostly these address minor errors on plans identified during the hearing. Significant changes made are explained below.

1. The preamble of condition 1 now refers to "application plans". By order of the Tribunal at the start of the hearing the application plans were substituted for those dated 11 October, 2013. These then become the application plans that require further modification as outlined in Condition 1. 2. Condition 1j) includes provision that 'if needed' the adjoining fence to 46, 48 and 50 Rockley Road must be replaced by the applicant to a similar height and form. We understand it is the preference of these landowners to retain the existing fence between the site and their properties. We also accept the developer's submission that this will be the preferred outcome, but that construction issues may lead to a need for this fence to be repaired, or at worst replaced. We have directed that if replacement is required it should be at a similar height and form to the existing fence.

1. We have included the word "predominantly" in Condition 1k) as was requested by Mr Hunter and accepted by the permit applicant. We do not see any need for this to apply to all elements of the building, such as louvers and screens. Such elements can be more recessive if in darker, muted tones. Overall a selection of materials is needed to ensure the building maintains architectural interest and quality.

1. We have added a new Condition 1o) to provide for a revised elevation treatment to the south façade of the Rockley Wing at the closest interface to 50 Rockley Road to form a more interesting façade than a simple "soft grey rendered concrete wall" as notated on the application plans. As explained in our reasons above, we consider a more considered response is needed to this sensitive residential abuttal to the rear garden of 50 Rockley Road. 2. We have included a number of new sub-conditions at the end of condition 1 to address corrections to plans as identified during the hearing.
2. In relation to the landscape condition, now Condition 24:

1. We have removed proposed sub-condition d) that required 10 metre evergreen trees to the western boundary of the new development at 52 Rockley Road. We do not see this as necessary to soften the form, given the extent of vegetation already on the site and the distance the building is setback behind the existing building to Rockley Road. Retaining a more conventional garden form along this façade will enable a better filtered light and aspect to be provided between the forms and the aspect from 50 Rockley Road across this section of the site. 2. We have deleted proposed sub-condition e). We do not see that planting in the Alexandra Avenue frontage must be taken from the Melbourne Water document. Planting on the south side of Alexandra Avenue derives from a wide source of planting, both exotic and native. This is not an environs where there is a distinct native feel to the river environs.

1. We have also removed proposed sub-conditions f) and g). There is no specific need for evergreen planting, other than where a specific agreement has been reached between parties as is provided for in draft sub-condition k) (now numbered 24g)). Planting should enable filtering of the view of building whilst maintaining outlook and daylight. Soil volumes for planting are a matter that can be addressed as part of approving the overall final landscape plan to ensure species are suitable to their location. Providing specific soil volumes to each tree seems somewhat onerous and unnecessary.

61 Kensington Road, 52 Rockley Road, 135 Alexandra Avenue and 141 Alexandra Avenue, South Yarra.

• Demolition of buildings in a Heritage Overlay.
• Construction of buildings and works for an aged care facility in a Residential 1 Zone, Heritage Overlay and Design and Development Overlay (Schedule 3).
• Alteration of access to a Road Zone Category 1.
• Variation and removal of an easement.

1. Before the commencement of the development, three (3) copies of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the substituted plans prepared by Bates Smart dated 11 October 2013, but further modified to show:

1. Location of all mechanical plant and equipment including, but not limited to, lift overruns, flues, exhausts and air-conditioning units; 2. Dimensions and layout of parking bays, access gradients, head clearances, sightlines, location of columns must be such that they are in accordance with the Planning Scheme or otherwise to the satisfaction of the Responsible Authority;

1. Detailed plans showing the cross sections of the basement ramp and of the graded spaces to be approved by and to the satisfaction of the Responsible Authority;

1. Roof plans annotated to confirm drainage is to rainwater tank, and rainwater tanks annotated to confirm supply to identified uses; 2. Clarify on plans and elevations any fixed shade structures to northern glazing; 3. A schedule of construction materials, external finishes and colours; 4. With the exception of the windows and terraces to which condition 1L) applies, all windows and balconies with an outlook to an adjoining residential property are to be screened to limit views of residential private open space and habitable room windows where they are within 9 metres. Screening must be fixed at a minimum of 1.7m high with no more than 25% transparency or otherwise to the satisfaction of the Responsible Authority; 5. Confirmation that no plant will be located on the rooftop adjoining the properties at 46 and 48 Rockley Road; 6. Confirmation that the only pedestrian access between 1/52 Rockley Road and the remainder of 52 Rockley Road is emergency pedestrian egress from the remainder of 52 Rockley Road; 7. The existing fence adjoining the properties at 46, 48 and 50 Rockley Road is retained, repaired or, if necessary replaced by a new fence of a similar height and form, at the cost of the applicant; 8. The building adjoining the properties at 46, 48 and 50 Rockley Road is to be predominantly light in colour;

1. Screening up to a height of 1700mm above floor level, to the east-facing and south-facing suite windows and terraces on level 6, to prevent any horizontal or downwards views into habitable room windows or private open spaces of 51-59, 63-65 and 67 Kensington Road;

1. Bicycle facilities must be shown on the plans to be in accordance with Clause 52.34 of the Stonnington Planning Scheme or otherwise to the satisfaction of the Responsible Authority; 2. Any changes as required by Conditions 14 (Car Park and Traffic Management Plan), 24 (Landscape Plan), 28 (Tree Management Plan), 29 (Sustainable Management Plan), 37 (Waste Management Plan), 43 (Water Sensitive Urban Design Response); 3. Detailing of the south east facing wall of the Clinical Coordinator room and adjoining stairwell, facing toward 50 Rockley Road to include increased surface detailing and or opaque glazing to better articulate this façade when viewed from the rear yard of 50 Rockley Road; 4. TP.04F, TP02.05F and TP02.06F corrected to identify the setbacks on the western boundary of 61 Kensington Road correctly as hand notated on exhibit 24 presented to the Victorian Civil and Administrative Tribunal. This includes the western 4.000 metre side setback dimension notated on plan corrected to read 5.000 metres, the 3.600 metre dimension corrected to read 4.600 metres and the 6.400 metre dimension corrected to read 7.400 metres; 5. Details of the revised driveway to the retained dwelling at 52 Rockley Road, so as to retain existing trees on its southern side driveway, generally consistent with plan SK03 dated 14/11/13 prepared by Bates Smart as tabled to the Victorian Civil and Administrative Tribunal; 6. In TP05.02E, add the word 'west' after the word 'north' on the North Elevation Rockley Road site; 7. In TP08.00D, label property numbers, extend section F to the west, and relocate section F to the immediate south of section F, and to add reference to sections II, T1 and T2; 8. In TP 08.02D, show in section D the outline of71 Kensington Road dashed; 9. In TP 08.03E, section F, amend '54' to '50' and '65 Kensington Road' with '52 Rockley Road', and to show the RL for 52 Rockley Road as RL 21.70;

1. In TP 08.05D, section H, show the outline of 67 Kensington Road dashed, and section I to replace "46/ 48 Kensington Road" with "50 Rockley Road";

1. In TP 08.08C section U, label "48 Rockley Road" above the pool;

1. In TP 02.01F, show the pathway along the eastern boundary of the eastern Alexandra Block suites;

1. In TP 02.03 E and TP 02.04 F, to show the re-shaping of the planter boxes at the northern end of the Level 3 terrace;

all to the satisfaction of the Responsible Authority.

1. The development must be in accordance with the endorsed plans unless otherwise agreed in writing by the Responsible Authority.
2. No more than 81 suites are to be provided in the aged care facility.
3. No suite may include built-in food preparation facilities.
4. The owner must submit to the Responsible Authority a geotechnical engineering report and a structural engineering report detailing the measures to be undertaken during construction to ensure stability and avoid any damage to the level of support of and provided by all the land and to buildings at 51-59, 63, 65, 67, 71 and 73 Kensington Road which must be approved by the relevant authority after consultation with the owners of the said adjoining land prior to the commencement of any buildings and works allowed by this permit. Once approved the geotechnical report and structural engineering report will form part of the permit and must be complied with at all times during construction of the permitted development.
5. Prior to the commencement of any buildings and works allowed by this permit the owner and/or developer must submit a Construction Management Plan to the satisfaction of the Responsible Authority. The Construction Management Plan must include details on how the construction will be undertaken so it has minimal impact on the environment and the amenity of neighbouring properties. Details to be provided in the Construction Management Plan must include, but are not to be limited to:

1. Full work schedule/construction management plan for each individual stage to ascertain impacts on surrounding properties; 2. Public/worker access and safety issues;

1. Hours of construction activity (including at what stage "out of hours works" are proposed and what type of works are to be conducted outside the hours of operation);

1. The location of hoardings, hoists and workers amenities; 2. The location of public precautions, loading zones, site sheds, materials, cranes and crane/hoisting zones, gantries and any other construction related items or equipment to be located in any street; 3. Details as to how traffic and pedestrian safety and amenity will be controlled within the vicinity of the site and its surrounds; 4. The provision of a traffic management plan, including detailed plans that show all items to be placed on any street during all stages of construction in accordance with approval by the responsible Building Surveyor, entry and exit points for construction vehicles (including temporary and permanent vehicle crossings), traffic management during construction including road closures/road occupation/footpath closures, workzones/construction zones to accommodate vehicles and deliveries; 5. Service connections/road and footpath openings and anticipated impact on public land during the connection of different services; 6. Measures to be used to protect the Council infrastructure from damage; 7. Existing services and environmental management; 8. A list of all environmental hazards that the activities on-site pose i.e.; contaminated soil, materials and waste, dust, stormwater contamination from run-off and wash-waters, sediment from the site on roads, construction noise, hours of operation, vibration, washing of concrete trucks and other vehicles and machinery, spillage from refuelling cranes and other vehicles and machinery etc.;

1. Protection measures that will be undertaken to minimise the risk of the above hazards being realised;

1. Regular monitoring/inspections of the above protection measures; 2. Identification as to who will be responsible for managing all of the above issues; 3. Anticipated staging of the development; and 4. No access to the site by construction or tradesman's vehicles via Kensington Road, other than contractors that must necessarily access the rear part of the site because they are undertaking construction in that area, being Citipower to install the substation and related infrastructure, the landscaper(s) to construct the landscaping and the contractor(s) to construct the new gates to Kensington Road.

The Construction Management Plan must be submitted to the Responsible Authority prior to commencing construction and all buildings and works must be carried out in accordance with the approved Construction Management Plan.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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:

1. Car parking allocation schedule that designates parking spaces to the residents of the aged care facility, visitors and staff; 2. Details of any access controls to the parking area;

1. Details of how parking spaces are to be secured for the intended use; 2. Details of signing and line marking of parking spaces and pedestrian pathways in shared zones; 3. Details of emergency vehicle access and management, confirming all emergency vehicles (except the fire brigade) will access the site from Alexandra Avenue; 4. Details of how the Kensington Road access is to be secured to prevent traffic impacts in Kensington Road, and managed to ensure that no vehicle or pedestrian access is provided to this entry with the exception of maintenance vehicles, fire trucks, and emergency pedestrian egress; 5. Provision for any maintenance vehicle longer than 6 metres to only access the facility via Alexandra Avenue; and 6. Details of how new residents and visitors to the facility will be advised of the parking arrangements for the facility, including discouraging parking in Kensington Road and Rockley Road.
2. Prior to the occupation of the development the areas set-aside for parked vehicles and access lanes as shown on the endorsed plans must be:

1. Constructed to the satisfaction of the Responsible Authority. 2. Properly formed to such levels that they can be used in accordance with the plans.

1. Surfaced with an allweather sealcoat or surfaced with crushed rock or gravel to the satisfaction of the Responsible Authority.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. No pedestrian access to be provided to the site from Kensington Road and Rockley Road, except for emergency egress.
7. 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.
8. All loading and unloading of goods must be undertaken in accordance with Council's Local Laws.
9. 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.
10. 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::

1. A survey (including botanical names) of all existing vegetation to be retained and/or removed. 2. Buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary.

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

1. The extent of any cut, fill, embankments or retaining walls associated with the landscape treatment of the site. 2. Details of all proposed hard surface materials including pathways, driveways, patio or decked areas. 3. Dense evergreen planting in accordance with Sections F, E and D on the boundaries with 5159, 63, 65 and 67 Kensington Road. 4. Planting on the fourth level garden terrace must not be higher than 3.5 metres above RL 20.00 except that trees in the planter at the northern end of that terrace may be to a height of 5 metres above the planter depicted on Drawing TP 02.04 plot date 11 Oct 2013 which planter must not be higher than 1 metre above terrace level, unless with the written consent of the owner of 67 Kensington Road.

all to the satisfaction of the Responsible Authority.

1. Prior to the occupation of the development, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority. Landscaping must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
2. All existing vegetation shown on the endorsed plans to be retained must be suitably and clearly identified before any development (including demolition and excavation) starts on the site and that vegetation must not be removed, destroyed or lopped without the written consent of the Responsible Authority.
3. Planting of advanced trees at the expense of the permit applicant must be provided within 65 Kensington Road adjacent to the western boundary to replace the screening effect of the existing Cypress trees to the satisfaction of the Responsible Authority after consultation with the owner of 65 Kensington Road.
4. Concurrent with the endorsement of development plans a tree management plan prepared by a suitably qualified arborist must be submitted to and approved by the Responsible Authority. When approved, the tree management plan will form part of this permit and all works must be done in accordance with the tree management plan.

The tree management plan must detail measures to protect and ensure the viability of the 2 mature trees on the southern boundary of 52 Rockley Road, the mature Golden Poplar on the southern boundary of 54 Rockley Road and the 'significant' Platanus x acerifolia (London Plane) street tree along the Alexandra Avenue frontage and the Palm Trees adjacent to the western boundary of 65 Kensington Road.

Without limiting the generality of the tree management plan it must have at least three sections as follows:

1. Pre-construction - details to include a tree protection zone, height barrier around the tree protection zone, amount and type of mulch to be placed above the tree protection zone and method of cutting any roots or branches which extend beyond the tree protection zone.
2. During-construction - details to include watering regime during construction and method of protection of exposed roots.

1. Post-construction - details to include watering regime and time of final inspection when barrier can be removed and protection works and regime can cease.

Pre-construction works and any root cutting must be inspected and approved by the Parks Unit. Removal of protection works and cessation of the tree management plan must be authorised by the Parks Unit.

1. Concurrent with the endorsement of plans, a Sustainable Management Plan (SMP) must be submitted to and approved by the Responsible Authority. The SMP will be endorsed as part of the planning permit and the development must incorporate the sustainable design initiatives outlined in the SMP to the satisfaction of the Responsible Authority. Amendments to the SMP must be incorporated into plan changes. The report must include, but is not limited to, the following:

1. Demonstrate how Best Practice measures from each of the 10 key Sustainable Design Categories of Stonnington Council's Sustainable Design Assessment in the Planning Process (SDAPP) have been addressed 2. Identify relevant statutory obligations, strategic or other documented sustainability targets or performance standards

1. Document the means by which the appropriate target or performance is to be achieved

1. Identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring. 2. Demonstrate that the design elements, technologies and operational practices that comprise the SMP can be maintained over time.
2. All works must be undertaken in accordance with the endorsed Sustainability Management Plan to the satisfaction of the Responsible Authority. No alterations to the Sustainable Management Plan may occur without written consent of the Responsible Authority.
3. Prior to the occupation of the development, a report from the author of the Sustainability Management Plan, approved pursuant to this permit, or similarly qualified person or company, must be submitted to the Responsible Authority. The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the Sustainability Management Plan have been implemented in accordance with the approved plan.
4. Waste vehicles must not access the property via Kensington Road.
5. Waste must only be collected from within the boundaries of the site.
6. Waste must only be collected within those times permitted by Stonnington Local Laws and the Environment Protection Authority.
7. The collection of wastes and recyclables from the premises (other than normal Stonnington City Council collection) must be in accordance with Council's General Local Laws.
8. Adequate provision must be made for the storage and collection of wastes and recyclables within the site prior to the commencement of use or occupation of the building. This area must be appropriately graded, drained and screened from public view to the satisfaction of the Responsible Authority.
9. Concurrent with the endorsement of plans, a Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan must include:

1. Dimensions of waste areas 2. The number of bins to be provided

1. Hours of waste and recyclables collection 2. Method of presentation of bins for waste collection 3. Sufficient headroom within the basement to allow the passage of waste collection vehicles 4. Sufficient turning circles for the waste collection vehicles to drive out in forward gear from within the basement 5. Strategies for how the generation of waste and recyclables from the development will be minimised

When approved, the plan will be endorsed and will then form part of the permit. Waste collection from the development must be in accordance with the plan, to the satisfaction of the Responsible Authority.

1. 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.
2. 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.
3. 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.
4. 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
5. 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.
6. 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.
7. The project must incorporate the Water Sensitive Urban Design initiatives detailed in the endorsed site plan and/or stormwater management report.
8. 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.
9. 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.
10. 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.
11. 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.
12. No noise generating plant shall be located on the roof other than a stair pressuration fan(s) and air conditioning condensing units.
13. 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.

1. Before the commencement of any works, a geotechnical engineering report providing a stability assessment in accordance with Australian Standard AS 4678, which demonstrates that the works to the retaining wall can be achieved without compromising the structural integrity of the retaining wall, must be submitted to and approved by VicRoads and Responsible Authority. Once approved, the geotechnical report will form part of the permit.
2. Before the commencement of any works Swept Path Analysis for a 7.0m vehicle or the largest vehicle that will enter the site, whichever is greater, is to be submitted to VicRoads for approval.
3. Before the commencement of any works, amended plans must be submitted to and approved by VicRoads. When approved by VicRoads, the plans may be endorsed by the Responsible Authority and will then form part of the permit. The plans must be drawn to scale with dimensions and two copies must be provided. The plans must be generally in accordance with the plans (DWN Number:11102COcheck dated 24/04/2013,issue 2 by Ratio) but modified to show:

1. Exit and entry arrangement in accordance with the approved Swept Path Analysis. 2. Sight distance in accordance with the recommendations contained in the Road Safety Audit report dated 7 August 2013, prepared by TrafficWorks, of 83 metres east of the Alexandra Avenue access.

1. Installation of appropriate signage and line marking.
2. Before the commencement of any works required by VicRoads under this permit a detailed engineering design must be prepared generally in accordance with the accepted functional layout plan and to the satisfaction of VicRoads.
3. Before the use of the permitted development, all redundant vehicle crossings on Alexandra Avenue must be removed and the area, including the kerb and channel reinstated to the satisfaction of and at no cost to VicRoads.
4. Before the use of the permitted development, all works required by VicRoads under this permit must be completed to the satisfaction of VicRoads and at no cost to VicRoads.
5. 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 applicant 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 work.
6. No work must be commenced in, on, under or over the road reserve without having first obtaining all necessary approval under the Road Management Act 2004, the Road Safety Act 1986, and any other relevant acts or regulations created under those Acts.

1. The owner of the subject land must enter into an agreement with South East Water for the provision of potable water supply and fulfil all requirements to its satisfaction.
2. The owner of the subject land must enter into an agreement with South East Water for the provision of sewerage and fulfil all requirements to its satisfaction.
   • Abandonment of approximately 56 metres of reticulation sewer and associated works.
   • Construction of an appropriately sized sewer branch to service 61 Kensington Road. Part of the existing sewer from the maintenance hole may be used as a sewer branch to service the property provided that an inspection opening (26A) is constructed on the sewer (just inside the property boundary) to establish South East Water's end of responsibility.

1. This permit will expire if one of the following circumstances applies:
   1. The development is not started within two years of the date of this permit.
   2. The development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing within the following timeframes:

1. Before or within 6 months after the permit expiry date, where the development allowed by the permit has not yet started; and
2. Within 12 months after the permit expiry date, where the development allowed by the permit has lawfully started before the permit expires.

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

[2] The exhibited amendment included all of 61 Kensington Road within the 9 metre height control area. Mr Walker explained that Council's position to the Panel was that the front of the site should be contained within the 12 metre high area. This was accepted by the Panel.

[3] Mr Walker advised that an officer report was tabled to Council on 28 October 2013, but its consideration by Council was deferred. At the time of the hearing we understand the matter had not been further heard or resolved by Council.

[4] As acknowledged by parties in making reference to Watkins v Boroondara CC (includes Summary)(Red Dot) [2013] VCAT 824

[5] Comments of David Morrison, Council urban designer to statutory planning department - dated 15 July 2013 to May 2013 application plans.

[6] As internal referral comments provided to the Council planning department as part of its consideration of the proposal in its report to Council.

[8] City of Stonnington 2002 Heritage Guidelines - Page 15.

[9] Internal referral comments of John Statham dated 19 June 2013 based on original application plans.