Subject Land 779 - 791 Whitehorse Road, Surrey Hills

A. The application for review is allowed and a permit is granted and directed to be issued for the land at 779 - 791 Whitehorse Road, Surrey Hills

The development of the land for 103 dwellings together with associated car parking including basement parking, in accordance with the endorsed plans and subject to the following conditions:

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plans are to be endorsed and will then form part of the Permit. The plans, which must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans drawn by Bruce Henderson Pty Ltd Architects, and identified as Level 1 Floor Plan - Option B TP03-E1, Level 2 Floor Plan-Option B TP04-F1, Level 3 Floor Plan-Option A TP05-E, Level 4 Floor Plan-Option A TP06-E, Level 5 Floor Plan - Option A TP07-E, Level 6 Floor Plan - Option A TP08-C, Level 7 Floor Plan Option A TP09-C, Roof Plan and Shadow Diagram - Option A TP10-B, Elevations TP11-B, TP12-B and TP13-B, Sections TP14-B, Floor Plans TP015-C as well as the landscape concept plan by ERM Pty Ltd dated March 2000, but modified to show:

(a) location and size of rubbish disposal skip/bulk bins, with practical access to the bins by appropriate service trucks and an indication as to how the bins will be emptied,

(b) location of all rubbish bins in common service areas detailing storage capacity,

(d) redesign of the access to the site from the laneway to discourage left turn out and right turn in traffic movements,

(e) a landscape plan generally in accordance with the Landscape Concept Plan prepared by ERM Mitchell McCotter Drawing No. LS3, March 2000 which plan must show -

(i) a survey of all existing vegetation, abutting street trees, natural features and vegetation,

(ii) planting within and around the perimeter of the site comprising trees and shrubs capable of:

- providing some upper canopy for landscape perspective

- integration of frontage and Whitehorse Road landscaping

- Achieving advanced tree planting with the potential to provide spreading canopies for all communal areas and in other open space areas where practicable.

(iii) the proposed design features such as paths, paving, lawn and mulch, and

(iv) a planting schedule of all proposed vegetation (trees, shrubs and ground covers) which includes, botanical names, common names, pot size, mature size and local quantities of each plant,

(f) exhaust pipes and/or ventilation arrangements for the underground parking areas,

(g) all eaves and roof ridge heights to be designated to Australian Height datum being no higher than designated on the substituted application plans.

2. Before the development starts the applicant/owner must provide in writing to the Responsible Authority a Certificate of Environmental Audit to the satisfaction of the Responsible Authority specifically declaring that the condition of the land is not detrimental or potentially detrimental to the proposed residential uses. This Certificate of Environmental Audit is to satisfy the intent and objectives of Ministerial Direction No.1 to the satisfaction of the Responsible Authority.

All investigations for contamination of the site are to be undertaken in compliance with the Australian New Zealand Guidelines for the Assessment and Management of Contaminated Sites (ANZECC-NHMRC, 1992).

This document must include or be accompanied by an environmental audit report to include:

(a) an evaluation of the environmental quality of the site,

(b) an assessment of the extent and type of contamination, and whether any clean up of the site is required, and,

(c) if any clean up is necessary, recommendations relating to the carrying out of the clean up.

3. The layout of this site and the size, design and location of the buildings and works permitted must always accord with the endorsed plan and must not be altered or modified without the further written consent of the Responsible Authority.

(a) The Applicant/Owner is to be responsible to meet the costs of all alterations and reinstatement of Council and public authority assets deemed necessary and required by such Authorities for the development.

(b) The Applicant/Owner must obtain the prior specific written approval of the Council or other relevant authority for such alterations and reinstatements and must comply with conditions required by the Authority in relation to the execution of the works.

4. (a) Discharge of stormwater from the land will be required by means of an

underground pipe drainage system designed on the basis of a 10 year average storm recurrence interval and discharging into an approved outlet in a street or an underground pipe drain to the requirements of the Responsible Authority. In this regard no water is to be discharged from any pipe or paved area onto the surface of any adjacent land.

(b) Prior to the commencement of any works on the subject land a site development layout plan together with detailed design plans and specifications for outfall drainage external to the site must be submitted for approval by the Responsible Authority. All outfall drainage works must be completed to the satisfaction of the Responsible Authority prior to the occupation of the building(s).

5. (a) Drainage must be provided to the satisfaction of the Responsible

(b) All stormwater drainage within the development site and associated with

the building(s) must be completed to the satisfaction of the Responsible Authority prior to the occupation of the building(s).

6. No building or works is to be constructed over any easement without the written consent of the relevant Authorities.

7. Proposed floor levels are to be approved by the Responsible Authority prior to the issue of the Building Permit in relation to flood areas as defined in Regulation 6.2 of the Building Regulations 1994 (as amended).

8. Soil erosion control measures must be adopted at all times to the satisfaction of the Responsible Authority during the construction stages of the development. Site controls and erosion minimisation techniques are to be in accordance with Soil Conservation Authority Guidelines "Control of Erosion on Construction Sites".

9. (a) Prior to the issue of the building permit design plans and specifications are

to be prepared by a registered Consulting engineer detailing civil engineering works within the site, and for the reconstruction of the eastern laneway, in accordance with the endorsed plans.

(b) Certification by the Consulting Engineer that civil works have been completed in accordance with the design plans and specifications is to be submitted to the Responsible Authority subsequent to the completion of all works.

10. Any construction activity associated with the development of the subject land is to be carried out in accordance with Construction Techniques for Sediment pollution Control Environment Protection Authority (EPA) publication No.275 and Environmental Guidelines for Major Construction Sites (1996) Environment Protection Authority publication No.480 to the satisfaction of the Responsible Authority.

11. Stormwater collection is to incorporate a pit design allowing the treatment and separation of sediment, litter and urban wastes to the satisfaction of the Environmental Protection Authority.

12. Unrestricted access is to be provided within the site, with no parking on or directly off the driveway for a minimum distance of 12 metres from the property boundary.

13. The Development of the site is not to cause nuisance or be detrimental to the amenity of the neighbourhood by the emission of noise. In this regard noise from construction and/or demolition activities should comply to the satisfaction of the Responsible Authority with the Environment Protection authority guidelines for "Construction and Demolition Site Noise" and the following schedules:

6 pm - 10 pm Mon - Fri Noise level at any residential

14. All construction vehicles must access/exit the site from Whitehorse Road, to minimise traffic generation associated with the development in surrounding residential streets.

15. Suitable washing facilities are to be provided and utilised on site for the cleaning of all vehicles prior to them exiting the designated property so as to prevent any grease, oil, mud, clay or other substances being conveyed onto a road or into any drain.

16. The management must use every endeavour to ensure that the collection of refuse does not cause any unreasonable disturbance to nearby residential properties. The hours of collection are:

17. Any new power and telephone connections are to be concealed.

18. Party walls between habitable rooms of adjoining dwellings and/or between garages and adjoining habitable rooms are to be constructed in 270mm brickwork or other material with equal or greater sound proofing effectiveness to the satisfaction of the Responsible Authority.

19. The colour of external cladding and trim of the proposed buildings are to be to the satisfaction of the Responsible Authority and all paintwork is to be maintained to the satisfaction of the Responsible Authority.

20. (a) The car parking areas and accessways as shown on the endorsed plans

must be formed to such levels so that they may be used in accordance with the plans, and must be properly constructed, surfaced, drained and line-marked (where applicable) to the satisfaction of the Responsible Authority.

(b) The car park and driveways must be maintained to the satisfaction of the Responsible Authority.

21. Parking areas and access lanes must be kept available for these purposes at all times.

22. Tree planting in the Whitehorse Road frontage and landscape works in the eastern laneway is to be undertaken in consultation with Council's Urban Design Unit.

23. (a) The advanced native plantings required must be of plants produced by a

specialist supplier of advanced stock grown to produce a sound and well maintained root system so as to allow the development of a well structured plant. Upon planting, both the planting hole and soil must be properly prepared and the plant must be staked for a period of 12 months.

(b) Mulch must be provided to minimise weed growth and reduce moisture loss.

24. (a) Landscaping in accordance with the approved plan and schedule must be

(b) written notice must be given to the Council's Planning Inspector of the completion of the landscaping so that a site inspection can be carried out.

(c) The garden areas shown on the endorsed plan and schedule can only be used as gardens and shall be maintained in a proper, tidy and healthy condition to the satisfaction of the Responsible Authority. Should any tree or shrub be removed or destroyed within 3 years of the giving of notice in accordance with (b) above it is to be replaced by a tree or shrub of similar size and variety.

25. (a) If the development is carried out in stages then, prior to the

commencement of any development, a plan identifying the staging of the development of the site as to be submitted to and approved by the Responsible Authority.

(b) The staging of the development may be varied with the further consent of the Responsible Authority.

26. This permit will expire if one of the following circumstances applies:

* the development and use is not commenced within two (2) years from the date of issue of this permit;

* the development is not completed within four (4) years from the date of this permit.

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

B. The Responsible Authority is directed under section 85(1)(b)(ii) of the Planning and Environment Act 1987 to issue a permit in accordance with the above order.

On the first three days of the hearing, there were the following appearances:

Mr Robert Osborn QC and Mr Adrian Finanzio, Barristers, instructed by Minter Ellison Solicitors, appeared on behalf of the Applicant for. They presented written and oral submissions and called three witnesses. These were Mr T.Biles, Town Planner of Contour Consultants Pty Ltd, Mr A. Wyatt, Landscape Architect of ERM Mitchell McCotter and Mr S Hunt, Traffic Engineer, of Grogan Richards Pty Ltd. All these witnesses gave evidence and each presented a written report.

Mr Chris Canavan QC, Barrister and Mr Ian Pitt, Solicitor of Best Hooper Solicitors,

appeared on behalf of the Responsible Authority. They presented written and oral submissions and called two witnesses. These were Mr M. Barlow, Town Planner of AT Cocks Consulting and Mr J. Patrick, Landscape Architect of John Patrick Pty Ltd, both of whom gave evidence and each presented a written report.

Mr Greg Buchanan, Town Planner, appeared on behalf of 52 objectors and

presented written and oral submissions. Mr Buchanan provided us with the names of the

objectors he represented and these have been retained on the Tribunal's file.

A number of Respondent/Objectors appeared in person and made written and oral submissions. Ms C Stafford, Ms T Jeffers, Dr E Brentnall, Dr G Pyman, Mr R Fremantle, Mr R Morris, Mr D James, Mr RGollings, Ms C Rodgerson and Mr J D Merralls, A.M, QC, participated in this way although not all of them were present throughout the whole hearing.

On the fourth day of the hearing there were the following appearances:

Mr Mark Naughton, solicitor of Minter Ellison appeared on behalf of the Applicant for Review.

Mr Ian Pitt, Solicitor of Best Hooper Solicitors, appeared on behalf of the Responsible Authority.

No evidence or submissions in relation to the merits of the case were received on this day, the hearing having been called to give a decision on the case presented at that stage. The case was then adjourned to give the applicant an opportunity to consider whether it wished to submit revised plans for a modified version of the proposal to take account of and seek to remedy shortcomings discerned in the form of the proposal considered up to that stage. Subsequently an interim document was issued which set out what those perceived shortcomings were and giving reasons as to why they were criticised. The document also dealt with other issues that had been raised at the initial hearing but which were held not to be sustained as objections to the proposal. Again reasons were given as to these matters.

Subsequently modified plans were lodged and, after fresh notice of them was given to existing and potential new parties, a further hearing was concluded on the fifth and sixth days by the Tribunal reconstituted to include His Honour Judge Wood who presided thereafter.

On the fifth and sixth days of the hearing, there were the following appearances:

Mr Robert Osborn QC and Mr Mark Naughton, solicitor of Minter Ellison appeared on behalf of the Applicant for Review. They made written and oral submissions and called four witnesses to give evidence. These were Mr Graham Morrison, Architect of Bruce Henderson Pty Ltd, Mr A. Wyatt, Landscape Architect of ERM Mitchell McCotter, Mr S Hunt, Traffic Engineer of Grogan Richards Pty Ltd, and Mr T.Biles, Town Planner of Contour Consultants Pty Ltd.

Mr Ian Pitt, Solicitor of Best Hooper Solicitors, appeared on behalf of the Responsible Authority, and made an oral submission.

Mr Greg Buchanan, Town Planner, appeared on behalf of 52 objectors and

Ms C Stafford appeared on her own behalf and made an oral submission.

Ms T Jeffers appeared on her own behalf and made an oral submission..

Mr P Naylor appeared on his own behalf and made an oral submission.

Written submissions to the amended plans were also received from Mr J.D. Merralls AM QC, Mr J Vaux, Mr R Morriss, M/s M O'Brien, Mr G Patterson, Julie and Robert Watson, Maira Vitols and Rick Lacey, Cathy and Kevin Morriss, Eleanor and Allan Newton, Pauline Moncrieff, Rev Dr Robert Weatherlake, Peter and Wendy Lyall.

Various plans, photographs and other documents were tendered, either as attachments to

written submissions and reports, or as separate items. The evidence submitted in

documentary form, together with the written submissions, have been retained on the

We have inspected the land and locality. One such inspection was conducted by the Tribunal as then constituted after the third day and a further inspection by the Tribunal as reconstituted was conducted after the sixth day of hearing.

This is an Application under Section 79 of the Planning and Environment Act 1987 ("The Act") brought by Metrospan Developments Pty Ltd to review the failure of the City of Whitehorse ("The responsible authority") to grant a permit for the use and development of land at 779 - 791 Whitehorse Road, Surrey Hills for the purpose of 105 Residential Dwellings and associated car parking, within the prescribed time.

1. By way of history the Applicant lodged an Application for Review with the Responsible Authority on 18 September 1998. The Responsible Authority considered the application on 21 December 1998 for a development covering 119 dwellings which drew objections from approximately 259 objectors. The Council decided on 21 December 1998 that it could not support the proposal and invited further discussions with the developer. Those discussions apparently took place on or about 21 January 1999, we infer because the Applicant for Review filed its application on 21 January 1999, the discussions were not fruitful. There followed a Directions Hearing in the matter, at which the applicant was invited to make application to place the matter in the Commercial List, it declined to do so. Senior Counsel for the Applicant, Mr Osborn said at the hearing before us that this was because the Applicant could not certify that the plans would not be altered, because of complications involving a decision of Yarra Water. Be that as it may, as the President said when he reconstituted the hearing on 21 August 2000 it is regrettable that the matter was not placed on the Commercial List when the position of Yarra Water became clear.

2. The matter was set down for hearing in June 1999, again in October 1999 and eventually before it was heard on 29, 30 November 1999 and 1 December 1999. On 22 December, 1999, after the conclusion of the hearing, Senior Member Byard and Mr Hewet gave their views orally as to the merits of the proposal, Senior Counsel for the Applicant, Mr Osborn, having invited the Tribunal to indicate its views as soon as possible. On that day, having heard the Tribunal's criticisms of the proposal, a request was made on behalf of the Applicant for an opportunity to amend the application. That facility was afforded to the Applicant by directions on 18 February 2000, when it was directed that should the Applicant wish to file amended plans it needed to do so by the end of March 2000, and further to file with the Responsible Authority, and the other parties to the proceedings before this Tribunal, copies of those drawings together with an explanation of the changes which they proposed to make.

3. There followed discussions at Council level in March 2000 according to the Officer's Report of Mr Donovan which was tendered. It is apparent that the Council satisfied itself that copies of the drawings and the substance of the requirements of this Tribunal's directive in February 2000 was met. The Officer's Report noted that on 11 April 2000, persons who were parties before this Tribunal had been properly served with the documentation. It is clear from the Officers Report that Mr Pitt on behalf of the Council, gave advice to the Council as to the magnitude of the development and expressed the view that the community feeling in relation to the proposal was widespread and that the vehicular access via the eastern right-of-way should be investigated in more detail. In substance it would appear that Mr Pitt advised his client that there was a need for detailed and perhaps more indepth community consultation. Be that as it may, it also is to be noted that there was concern expressed by some of the persons who placed objection before the Council, but who were not parties to the proceedings before Tribunal, that they should be afforded an opportunity to become parties to these proceedings before this Tribunal so as to be able to provide their views as to the amended proposal.

4. Subsequently this Tribunal, in July 2000, ordered that the Applicant for Review provide notice to all of the original objectors before the Council, (that is to say the 259 objectors whose numbers grew later to 307), of this revised application advising those objectors that the plans were on display at the Council offices and if they wished to do so they could examine them and become parties to these proceedings. That notice was sent to all of the original objectors on 11 July 2000.

5. The Tribunal's directions of 18 February 2000 contained a complete description of the proposal as originally submitted, the site and locality, the applicable planning scheme controls, the Council's decision and the grounds of the Application for Review. We intend to rely on that material and do not intend to repeat here what was said there, except where it is relevant to the consideration of the amended plans now submitted.

6. The concluding comments in the February document are as follows:

The subject site is a significant one in its local context. It is one of the few sites in the City of Whitehorse which is capable of introducing a significant degree of diversity into the municipality's housing stock. It is also a significant site by virtue of its size and frontage to Whitehorse Road and the opportunity that exists to create a development noted for its design excellence .

The site enjoys excellent access to social, physical and entertainment facilities and as such, higher density residential development is appropriate. We are satisfied that the proposal is acceptable in terms of its impact on the character of the surrounding neighbourhood, and that the proposal will not contribute to unreasonable off site amenity impacts.

We accept that the combination of townhouses and courtyard apartments is an appropriate development concept for the site. There are however, internal design and layout shortcomings which dissuade us from directing the issue of a permit for the proposal in its present form.

We consider that the design response, at least as far as the frontage to Whitehorse Road is concerned, is disappointing and falls short of the objective to create an outcome which contributes to high quality design and architecture.

Mr Naughton, on behalf of the Applicant, raised the possibility that, rather than simply refusing the application we might adjourn the hearing to give the applicant an opportunity to consider if it wished to lodge amended plans with a view to meeting our concerns. We considered this request, after hearing from the other parties, and in the light of our view that the design does have some merit from many perspectives, we considered that it might be possible to revise the design to an acceptable form without necessarily involving so fundamental a redesign as to necessitate starting again. We agreed to adjourn the hearing and to prepare suitable directions to enable this possibility to be explored. If the Applicant elects not to take up the opportunity to submit amended plans we will dismiss this application and refuse to grant a permit.

1. The Applicant is to advise the Registrar and other parties who appeared or were represented at the hearing in writing within 14 days of the date of this interim determination as to whether the Applicant intends to lodge amended plans in accordance with the leave hereby given.

2. In the event of the Applicant so electing, then copies of such amended plans together with a list specifying the amendments made are to be lodged with the Tribunal and supplied to the Responsible Authority and such other parties within a further 28 days. The Applicant is to advise the Registrar in writing that such copies have been supplied as directed.

3. The Responsible Authority and such other parties then have a further 14 days within which to lodge a written submission limited to such amendments. Copies of such written submissions are to be provided to each of the parties who appeared or who were represented at the hearing and the Registrar is to be advised in writing that this has been done. If any party considers that a further hearing is necessary or desirable that party should say so in his or her written submission stating why such hearing is said to be necessary or desirable and what matters should be considered in such hearing.

8. In line with the above Directions, the Applicant for Review submitted on 31 March, 2000, amended plans incorporating an Option A and an Option B, and a statement outlining the basis of the amendments. Option A provided for the retention of vehicular access from Whitehorse Road while Option B relocated that access point to the eastern side of the site via the lane that runs down that site boundary from Whitehorse Road to George Street. The relocation of the access point leads to some consequential differences between the two options, which are detailed below. The changes common to both options were summarised in the documentation prepared by the project architects and provided at the time of the circulation of the amended plans. These are as follows:

s Apartments Numbered 15 to 18 and 19 to 25, repositioned 1.5m southwards to increase the driveway to 6.4m and open up distance between northern block.

s Townhouses 25, 26, 27 and Apartments 28, 29 have been deleted.

s Entire block containing units 56, 57, 58, 49 has been deleted and replaced with a single storey pool/gymnasium building in a landscaped setting.

s The existing Whitehorse Road building containing the pool and facilities has been demolished and the facilities relocated centrally, a new building of 3 levels high replaces it and enables increased setbacks and greater visibility to the Whitehorse Road/laneway intersection.

s Buildings within the site have been separated to allow increased views into and out of the site and northern orientation to units.

s The number of levels to the most northern pavilion remain the same as do the setbacks from the north boundary and the proposed reserve.

s The number of levels to the pavilion located in the north/east corner of the site remain the same, the setbacks generally increase to the east boundary. The north/eastern pavilion setback to the Yarra Valley reserve increased from 1 m to approximately 4.8m.

s Setbacks to Whitehorse Road have increased from 5.5m to 8.Om including the colonnade balcony/terrace area which is within this setback. The setbacks leading to the main entry and landmark have been increased.

s The setbacks to the corner of the lane on the eastern boundary have been increased from zero to 4m to 8m.

s The built form to Whitehorse Road has been amended to include the landmark nature of the building profile.

s Garbage collection areas have been retained in the previously proposed locations.

s Improved northern orientation to living spaces, terraces, courtyards and balconies, and increased solar amenity.

s The typical floor to floor height has increased from 2.83m to 3.Om to make allowance for the type of construction necessary to form the landmark building.

s Provision of a lift service between the carpark, entry and a large number of apartments.

s The proposed park on the north east corner of the site has been retained.

s The proposed amendments do not alter the concept, layout or parking to the Hotham Street accessed accommodation.

s The carpark entrance has been retained in a similar position on Whitehorse Road.

s The existing brick wall to the eastern boundary has been retained but modified to allow increased visibility of open landscaped vista.

s Total number of apartments/townhouses reduced from 105 to 102, comprising

s The Option B carpark (eastern laneway) would allow the eastern boundary wall to be demolished to provide increased laneway width for safety and visual access to the site.

s Total number of apartments/townhouses reduced from 105 to 103, comprising

9. In general terms the amended plans present a development proposal where the greatest bulk and height is moved to the southern end of the site where it has a frontage to a main road, Whitehorse Road. This building incorporates a maximum of five levels above ground, with the maximum height centralised within the frontage of the site and stepped back from Whitehorse Road. The building then steps down from its maximum height to the lower levels.

10. Similar to the original proposal, townhouses are located in the north-western section of the site, while three "pavilion" buildings comprising apartments are also proposed. Pavilion one is located near the eastern boundary and comprises 4 levels, pavilion 2 is located centrally within the site and comprises 4 levels while pavilion 3 is located near the northern boundary and comprises 2 levels.

11. During the course of the hearing Mr Osborne QC, indicated that the Applicant for Review would be amenable to a requirement deleting the fourth level of pavilion.

12. A Directions Hearings was conducted on 23 June, 2000. The Applicant for Review was directed to give notice of the amended plans to each person to whom the Responsible Authority gave or directed such notice to be given in relation to the permit application and also to each objector to that application.

13. Following the submission and circulation of the amended plans, seven submissions were received by the Tribunal. A further nine submissions were received following the notification procedure.

14. The Council advised that the five storey component of the proposal represented a substantial development on the streetscape and that the overall building bulk and mass should be reduced by one level and that all plant and equipment located on the roof should not be visually intrusive.

15. Further submissions from objectors reiterated concerns previously raised about the proposal with respect to its scale and bulk and its failure to adequately respond to the character of the neighbourhood.

16. Submissions were also received to the effect that the amended proposal constituted a fundamental redesign and ought to be the subject of a new planning permit application.

17. The hearing was reconvened on 21 and 22 August, 2000. The application for amendment was resisted principally by Mr Pitt on behalf of the Responsible Authority and by Mr J D Merrills AM QC in his written submission and by Mr Buchanan in his written and oral submissions that the amendments amounted to a transformation and, as such, fell outside the amendment power.

18. We turn now to the relevant enactments and cases which we have given consideration to in determining whether or not to permit of the Applicant for Review that it be granted leave to amend its application. First point is the terms of the direction of the Tribunal dated 11 February 2000. Although paragraph 1 refers to an "interim determination" is clear that on a reading of those directions, and perhaps more importantly the comments under the heading "Remarks" at page 5, and following, that the direction is one properly so described in the heading rather than in interim determination. This point was not taken at the hearing and perhaps it was recognized by the parties that those directions did not constitute an appellable determination. We refer to the comments of Deputy President Bruce in Dretzke and Others v Boroondara City Council 1998, 2 VPR 205 where Mrs Bruce dealt with a similar question, in that case where the Tribunal constituted by Member Baird gave similar directions to those given in this particular case.

19. The second and perhaps the most important consideration is whether or not the proposed amendments to the application were so considerable as to be a transformation, or to be a significant divergence from the initial Application for Review. In paragraph 33 of the Remarks of this Tribunal, dated 18 February 2000, a comment was directed to the objectives of Clause 19.03 of the State Planning Policy Framework and the Local Planning Policy Framework, and the view was expressed that the application as it then stood could better meet those objectives if the design was revised in the manner which the Tribunal indicated might be the case in paragraphs 34 and following. In paragraph 69 of the Remarks, the Tribunal raised the question whether it might be possible to revise the design to an acceptable form without necessarily involving so fundamental a redesign as to necessitate starting again. By the latter the Tribunal meant referring the matter back to the Council and starting the entire process again. The fundamental question therefore is: do the amended plans effect such a fundamental change as such as to require the matter to be remitted back to the Council so that, in the words of the Tribunal, the process will be started again?

20. Mr Osborn, QC took the Tribunal to a number of authorities, and we need not go to them in detail. Firstly, the well known authority of Mr Justice Brooking in Addicott v Fox (No. 2) [1979] VicRp 37; 1979 VR 347. Mr Osborn pointed out that subsequent to that decision in 1980, the section 53 of the Planning Appeals Act 1980, provided for an amendment of an application by the Planning Appeals Board if it considered it desirable to do so, including an amendment as to a use or development, different from the use or development mentioned in the application to amend it as it thinks just upon such terms as to the publication of notices. It is interesting to note that one of the contrasts between that section and its form as at the date of appeal is that the prior section did not include an ability to make an amendment where there was a failure on the part of the responsibility to make a determination. Such an amendment is to be found in the 1990 Amendment to the Planning Appeals Act 1980. For all relevant purposes, as best we can ascertain, the provisions of Section 53 of the Planning Appeals Act 1980, as it then stood are identical, certainly for practicable purposes, the same as the provisions of Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

21. In the RSL Victorian Branch and Moreland City Council and the Carlton Cricket and Football Social Club Limited, a decision of the Court of Appeal of this State handed down on 3 July 1997, which is reported at 19 AATR 107, His Honour Hayne JA, as he then was, delivered the judgement of the court. His Honour's judgement commences at page 108. His Honour traced the history of the legislation, namely Section 60 of the Planning and Environment Act 1987, more particularly Section 53 of the Planning Appeals Act 1980. Its interesting to note that although his Honour Justice Brooking was a Member of the Court of Appeal in the RSL decision and was the Judge who had decided Addicott v Fox in 1979, no reference in the former case was made to Addicott v Fox. However, His Honour concurred in the judgement which Hayne JA then gave. One of the relevant issues before the Court of Appeal on that occasion was the breadth of the power conferred by Section 53 of the then Planning Appeals Act 1980. Nonetheless, in the RSL case the point was taken whether or not there was power in the Administrative Appeals Tribunal to entertain an application for amendment that was before the Administrative Appeals Tribunal. Hayne, JA at page 118 set out in the first full paragraph of that page commencing with the words "as for the contention of the Tribrunal etc." down to the word "appellant", what he interpreted as the proper function of Section 53 of the Planning Appeals Act 1980. His Honour concluded that the proposed amendment was permitted by Section 53 of the Planning Appeals Act 1980, and said that it was unnecessary to rehearse much of the argument that was advanced in support of the proposition that the amendment amounted to impermissible transformation of the application. His Honour said:

For my part, I doubt that there is much assistance to be gleaned from the various decisions to which we were taken. Of course in other States, upon different legislative schemes in which there is not to be found any provision equivalent to Section 53. Even if there is to be implied some limit, the apparently ample powers given to the Tribunal by Section 53 (and are not to be taken as deciding if there is any such limitation on the power conferred by the Section). I do not accept the changes that were proposed and allowed in this case to transform the application into a proposal radically different from the one originally put forward or amounted to a substitution of a fresh application."

22. Bound as we are by the decision of the Court of Appeal, and bearing in mind the similarity for all material purposes of Section 53 of the Planning Appeals Act 1980, and the provisions under which we operate, there is power in this Tribunal to admit the amendment. Its also to be noted that this Tribunal has a statutory duty under Section 98 of the Victorian Civil and Administrative Act 1998, inter alia, to conduct each proceeding with as little formality and technicality and to determine each proceeding with as much speed as requirements of this Act and the enabling enactment and a proper considerations of the matters before it permit. Given the history of this application the Tribunal inquired of Mr Pitt, Solicitor for the Responsible Authority, as to what could be achieved if the Tribunal were to accede to the submission he made on behalf of the Responsible Authority namely, to reject the application and send the applicant back before the Council to start the process all over again. Mr Pitt, quite properly and frankly, said that it would enable the Council to conduct further consultative meetings with a view to resolving the matter at that level. This seemed pointless as Council had taken its view as to the merits of the application and indeed had expressed a view should this Tribunal decide to proceed upon the amended plans.

23. Mr Osborn, who appeared on behalf of the Applicant for Review, submitted that the amended plans seek to address the principal areas of concern previously identified by the Tribunal.

24. With respect to the Whitehorse Road treatment, Mr Osborn, submitted that the proposal now presents as a building of landmark quality, and that the additional height has been sensitively treated through the graduation in heights from the side boundaries and the setting back of the highest portion of the building behind the predominant frontage.

25. Mr Osborn also submitted that the internal amenity issues have been adequately resolved with the number of apartments limited to a southern orientation reduced to eight.

26. With respect to the vehicular access and circulation issues, he submitted that while Option A is capable of adequately accommodating access/egress to and from the proposed development, Option B nevertheless provides a better traffic management regime and would result in the removal of the wall to the eastern laneway and the implementation of an integrated landscaping treatment of the site, the laneway and the proposed reserve at the north east corner of the site.

27. Mr Pitt, who appeared on behalf of the Responsible Authority, advised that the Council had resolved to seek a reduction in the number of storeys presented to Whitehorse Road, from five to four. In Mr Pitt's submission, this would be most appropriately achieved by deleting the eleven apartments comprising level 5 in order to retain the balance between the horizontal and vertical articulation at the upper and lower levels.

28. Mr Pitt further submitted that with respect to the apartment buildings, the upper section of pavilion 2, or at least the northern section of it, ought to be removed to minimise the visual impact on existing residential properties to the north and north east.

29. With respect vehicular access arrangements, we were advised that the Council regard Option B as being preferable although it was acknowledged that Option A would be acceptable.

30. Mr Buchanan and Ms Stafford submitted to us that subsequent to the Tribunal's consideration of the Application for Review, clauses 14 and 16 of the State Planning Policy Framework of all new format planning schemes had been amended by Amendment VC9, and that as a consequence, the amended proposal must now be considered in the context of the changed policy framework.

31. Ms Stafford went as far as to submit that Amendment VC9 has the effect of giving the policies encouraging the protection of neighbourhood character precedence over the planning scheme's urban consolidation policies.

32. Both Mr Buchanan and Ms Stafford submitted that the amended proposal is not respectful of the established neighbourhood character of the area and, having regard to the effect of Amendment VC9, the Tribunal's earlier assessment of the proposal ought to be revisited.

33. With respect to the amended plans, the objectors emphasised their concerns regarding the height, bulk and scale of the proposed development, particularly with respect to its presentation to Whitehorse Road, and also in terms of its visual impact when viewed from the abutting residential area.

34. The proposed use of the eastern laneway (Option B) was opposed by Mrs Jeffers on the basis that this would increase traffic movements in the laneway, which directly abuts her dwelling. She was also concerned about bulk, overshadowing and overlooking of the eastern parts of the development in relation to her house.

35. The above summary is not an exhaustive list of everything raised in the course of this hearing.

36. The areas of concern raised by the Tribunal in the 18 February Directions can be summarised as follows:

(a) the failure to provide a frontage of sufficient interest and quality to Whitehorse Road

37. It is necessary for us to assess the amended proposal in the context of these previously expressed concerns.

38. The Tribunal had previously found that the original proposal was acceptable in terms of its impact on neighbourhood character and neighbour amenity, however as indicated above, we received further submissions on these matters as a result of the circulation and notification of the amended plans. Having regard to the substantial nature of the amendments, it also necessary for us to assess the amended proposal against these matters.

40. Our concern with the original proposal was that it failed to take advantage of the opportunities provided by the site, to create a building of distinction and because the original proposal........falls short of the objective to create an outcome which contributes to high quality design and architecture.

41. We find that the amended proposal represents a significant improvement and we agree with Mr Osborne who described it as a landmark building. This has been achieved by concentrating the height of the building onto the Whitehorse Road frontage and creating a contrast between the vertical articulation of the highest central portion of the building, with the horizontal articulation of the lower levels. In our view, this treatment compares very favourably with the lower, one dimensional treatment of the original proposal.

42. We acknowledge however, that whereas the original proposal had little impact in its contribution to the streetscape, the amended proposal will be prominent, primarily as a consequence of the height of the central portion of the building. We also acknowledge that this feature of the building may appear too dominant and out of context on this site, and that was certainly the basis of the submissions put to us by the Council and the objectors. Mr Pitt submitted that a reduction in height by one level was required to overcome these concerns while Mr Buchanan submitted that issues of height and bulk could be better addressed by breaking the building into modules to create views through the site.

43. We are of the view that the potential effects associated with the height and scale of the landmark component of the building are acceptable in this unusual context and that potential concerns of this sort have been adequately resolved in the amended proposal. Further modification is not called for. In forming our view on this matter we influenced by the following:

s The maximum height of the building has been centralised within the Whitehorse Road frontage and constitutes approximately 20% of the site's frontage.

s There is a transition to the building's maximum height from the lower scale elements on the east and west boundaries of the site. In achieving this transition, the entire width of the site has been utilised to avoid dramatic height increases from one level to the next.

s The highest, central portion of the building has been set back behind the predominant frontage setback and as such it tends to recede from the street rather than tower over it. We think that this effect has been assisted by the use of light weight materials in the central portion.

s Mr Buchanan's notion of a development in separate modules could certainly be an acceptable alternative approach to development here, but it is not the only potentially acceptable alternative.

s There is virtue in a development on this particular site exhibiting some interest in landmark characteristics as now proposed.

44. In our view the application of these techniques has created a building which achieves the high quality design and architecture encouraged by the planning scheme and noted in the criticisms made of the project proposed. While the building will be prominent in this locality, we do not think it will be visually overpowering.

45. We are satisfied that the amended proposal has adequately resolved the internal amenity issues identified in the Tribunal's interim February document, and we did not receive any submissions to the contrary. In particular the stringent criticism made by Mr M Barlow on behalf of the Responsible Authority of excessive southern orientations in the original proposal have been suitably remedied.

46. We think it is significant in this respect, that the relationship between the buildings on the site has been improved by the removal of the apartments which previously "backed" onto those apartments fronting Whitehorse Road, and by the removal of the central pavilion building.

47. We are also satisfied that internal access and circulation under both Option A and Option B has been significantly simplified and improved compared with the original proposal. We did not receive any submissions to the contrary on this matter.

48. With respect to the two options, we accept Mr Hunt's evidence that Option A is capable of accommodating vehicular access requirements for the site, but we are of the view that Option B offers significant advantages in traffic management terms and also with respect to the overall site layout.

49. Notwithstanding the above, we note Mrs Jeffers' concerns regarding the potential impact associated with increased traffic movements in the lane beside her house, and increased traffic movements in George Street to the north east. We agree that the adoption of Option B might justify the closure or partial closure of the laneway to the north of the access point to the site, in order to restrict access to the lane from Whitehorse Road only. Such matters are within the discretion of the Responsible Authority in its capacity as a municipal council. Mr Pitt advised that the Council is prepared to consider the initiation of closure procedures. However these procedures need to be carried out independently of the consideration of this Application for Review and we are not in a position to rely upon the ultimate outcome of those proceedings.

50. Mr Hunt gave evidence that it would be possible to design the access to the site from the lane with "channelling" and like devices to discourage left turns out of the site and right turns into it. While we acknowledge that such a configuration might not prohibit use of the northern section of the lane, we think that it represents an appropriate solution that does not deny the opportunity for the Council to explore road closure options.

51. Having regard to the above, and subject to a condition requiring modifications to the access from the lane, we are prepared to endorse Option B of the amended proposal.

52. In its February document it was found that the original proposal was acceptable in terms of its neighbourhood character impact. It said:

....It is to be expected that the proposal will have an impact on the character of the surrounding neighbourhood. It is not necessary for the proposal to replicate the scale, form and density of the surrounding neighbourhood and indeed, to do so would be to ignore applicable planning policy which encourages higher density development on sites such as this. As we have said the site is of such a size and is so located that it can constitute something of a minor neighbourhood in itself.

It is also significant that the subject site is to a large extent an "island" site sitting on the edge of an established residential area and with a frontage to a main road in a "mixed use" locality. As a result, the extent to which the proposed development ought to be required to integrate with or replicate the character of the neighbourhood is less of a concern to us than would apply to a proposal for an infill development within the existing neighbourhood.

In any event, we consider that the proposal does integrate to an acceptable degree on the western and northern boundaries of the site where townhouses are proposed with a transition down to two storeys on the courtyard apartment building also proposed. The development of the Yarra Valley Water land on the north eastern boundary as an open space area will also assist in this regard.

With respect to the eastern boundary treatment, we acknowledge that the proposal will be significant but we are satisfied that, from a neighbourhood character perspective, the proposal is acceptable having regard to our earlier comments about the level of integration which is considered necessary......

53. We endorse these observations and see no reason to depart from them in relation to this revised proposal. While the form, design and layout of the development has changed the site features, locality and surrounding land uses have not. We reiterate our earlier comments that this is an island site which sits on the edge of a residential area, in a mixed use locality and it is not necessary for a development of the site to replicate the form of surrounding residential development or to integrate with it.

54. We acknowledge the submissions made to us by Mr Buchanan and Ms Stafford with respect to the implications of Amendment VC9, but we do not agree with them. In our view, the Explanatory Report for the amendment makes it very clear that its provisions are intended to achieve a policy balance between the protection of neighbourhood character and urban consolidation, and it is not intended to give one policy precedence over any other policy. The Explanatory Report says:

s To achieve an appropriate policy balance between the consolidation of residential and employment activities in existing urban areas and protection of neighbourhood character.

s To establish a policy basis for respecting neighbourhood character in the consideration of medium-density housing proposals.

55. The Amendment changes Clause 14 of the State Planning Policy Framework by inserting the words development in existing residential areas should be respectful of neighbourhood character in the General Implementation clause (14.02-2) under Metropolitan Development. We note that the State Planning Policy Framework continues to ......encourage consolidation of existing urban areas and especially higher density and mixed use development near public transport routes (Clause 14.01-2) and that ......consolidation of residential activities is encouraged within existing urban areas (Clause 14.02-2)

56. With respect to Clause 16 Housing, State Planning Policy objectives continue to encourage residential development that is cost effective in infrastructure provision and use .....and encourages public transport use and ......increased residential densities to help consolidate urban areas (Clause 16.01-1).

57. The new objective for Medium Density Housing under Clause 16.02-1 which has been introduced by Amendment VC9, encourages the development of well designed medium density housing which respects the character of the neighbourhood, improves housing choice, makes better use of existing infrastructure and improves energy efficiency of housing.

58. We also note that the provisions of the Local Planning Policy Framework of the Whitehorse Planning Scheme identify the need to increase the diversity of housing and that the review site is one of very few key sites within the municipality upon which higher density housing could be appropriately accommodated.

59. We note that the achievement of an appropriate balance between the protection of neighbourhood character and the encouragement of urban consolidation formed an important part of the combination of policies and controls in planning schemes, before the gazettal of Amendment VC9. One of the Elements of the Good Design Guide for Medium Density Housing, the document against which most medium density housing proposals are required to be assessed, is titled Neighbourhood Character. The objectives of the Element emphasise the achievement of medium density housing which is respectful of its neighbourhood, developments which make a positive contribution to the character of the neighbourhood and the maintenance of the garden character of neighbourhoods.

60. The achievement of this balance as an important planning outcome was specifically recognised in the assessment of the original proposal. We recognise and respectfully approve of the policy considerations behind Amendment VC9. The amendment serves as a useful reminder of their importance. It is a reminder not particularly needed in relation to the present case as the importance has been recognised throughout as will be seen from a reading of the February document.

We were satisfied that that proposal appropriately achieved the required balance and the subsequent introduction of Amendment VC9 has not change the basis upon which the initial conclusions were reached.

61. The original proposal was found to be acceptable in terms of its impact on the amenity of neighbours and the locality. In our view the amended proposal is also acceptable. In forming our view we note in particular that the built form of the original proposal on its eastern boundary has been reduced and softened and the adoption of Option B will allow the eastern boundary wall to be demolished, and provide for increased landscaping and for views into the site.

62. The objectors continued to express concerns regarding the visual impact of the proposal on the residential area to the north. We are satisfied however that the combination of landscaping, the provision of the area of landscaped open space on the north east corner of the site and the setbacks of the building, are more than sufficient to ensure that the visual impact is acceptable and not overpowering.

63. Mrs Jeffers, in particular, expressed concern about overlooking and dominance of her property. The revised proposal, particularly with the further elimination of a level from apartment building 2, has considerably less impact on her land compared with the original proposal. Even that original proposal was acceptable in relation to her property. The distances and angles of view in relation to what we propose to approve are really quite acceptable in relation to Mrs Jeffers property, however sensitive she may feel about it.

64. A set of suggested draft condition was discussed and we have been thus assisted in drawing up the conditions we intend to impose. We have modified the draft where we have thought that was appropriate.

65. It follows from the above that the Application for Review is allowed and that a permit is directed to be issued in accordance with the above Order.