Nero Corporation Pty Ltd v Stonnington CC [2025] VCAT 901

Construct a building or construct or carry out works.

Nero Corporation Pty Ltd v Stonnington CC [2025] VCAT 901 | Case summary | Zoe

[23]

The permit allows the construction of a five-storey building (plus three basement levels) on the subject land. The building is shown as accommodating 407 square metres of retail floor space at ground-floor level, with the upper floors providing a total of 2154 square metres of office space. At the rooftop level, a 244 square metre outdoor terrace is shown, in addition to mechanical plant.
The overall building height is 20.37 metres measured from ground level to the parapet of Level 4. To the top of the lift core/stairwell, the height is 24.9 metres.
Setbacks from Malvern Road are nominated as 1.8 metres at ground floor level; 1.2 metres at first-floor level; 0.6 metre at second-floor level; 3.0 metres at third-floor level; 3.0 metres at fourth-floor level; and 5.0 metres to the roof-top terrace.
The building is constructed to both side boundaries at all levels except the rooftop, where 2.0 metre setbacks are nominated.
Being a mid-block property, the development has a sole address and frontage to Malvern Road. To the rear, there is a laneway connecting to Miller Street. It is a no-through thoroughfare and does not extend past the subject land. Its termination is to a part of the development shown as comprising a gas meter enclosure and an adjacent 'car lift waiting space'.
The basement accommodates a total of 50 car spaces accessed via two car lifts. Four of the car spaces are allocated to the retail use. This equates to car parking provision at a rate of one space per 100 square metres of leaseable floor area. The remaining 46 spaces are allocated to the office use, equating to 2.1 spaces per 100 square metres of net floor area. The permission granted includes a reduction of 28 spaces from the requirement specified at clause 52.06-5.
At ground-floor level, the development's interface with the laneway is comprised of a substation, bicycle parking areas, pedestrian access doors and two car lifts. The car lifts provide the sole means of vehicle access to, and egress from, the basement car park.
The rear of the first-floor level is in the same plane as the ground-floor level with a maximum height on the boundary with the laneway of 7.97 metres. The glazed south-facing first-floor level is fitted with 'perforated steel screens to 25% maximum openings' to a height of 1.7 metres above floor level.
Above the first-floor level, the building's south elevation recedes northward in a 45-degree plane, with progressively greater setbacks at each consecutive level as the building rises. A planter extends across the entire width of each level, and all windows are shown to be fitted with obscure glazing to a minimum height of 1.7 metres above floor level. At the rooftop, a 1.7 metre high screen on the southern edge screens the plant and equipment.

[31]

The subject land forms part of the Hawksburn Neighbourhood Activity Centre ('HNAC'). To the east it abuts a two-storey furniture showroom with a blank, full-height wall on the common boundary. That building is constructed to all its property boundaries. Further east is a two-storey convenience restaurant with a drive-through lane on the western side of the building and a driveway and car park on the eastern side. It is extensively paved to facilitate vehicle circulation.
Beyond that property, on the south-western corner of Malvern Road and Williams Road, is a service station. It is in what can be described as a typical or standard format with a kiosk/convenience single-storey building and a large canopy over the fuel bowsers, resulting in an 'open presence' in the streetscape.
On Malvern Road, east of Williams Road, is a strip of retail/commercial premises characterised by a two-storey scale and fine grain pattern. This part of the HNAC is of heritage significance and is in a Heritage Overlay.[4]
On the north-western corner of Malvern Road and Williams Road is another strip of commercial properties in the form of a terrace row with constituent buildings of heritage character. This row of buildings also included in HO142.
Opposite the subject land is a five-storey mixed-use development accommodating retail/commercial uses at the ground-floor level and dwellings above. The development comprises a three-storey street wall with the two levels above being recessed.
To the west, Malvern Road is characterised by a variety of buildings including single-storey and two-storey commercial/industrial premises and contemporary multi-level, mixed-use developments rising to five storeys.
With the exception of No. 1 Miller Street, properties in Miller Street are occupied by dwellings and are within the General Residential Zone, Schedule 12[5] ('GRZ12'). To the south is a single-storey dwelling constructed on the boundary with the laneway. There are four habitable room windows in the boundary wall, which have an outlook to the subject land. A secluded private open space area is located to the rear of the dwelling.
Further south on the east side of the street are a single-storey dwelling, a two-storey block of walk-up flats, a contemporary two-storey apartment development with basement car park and another two-storey block of walk-up flats.
The west side of Miller Street displays a three-storey dwelling, a two-storey apartment development, two single-storey dwellings, a two-storey dwelling, and a two-storey block of walk-up flats.
Miller Street has a mixed character comprising a variety of dwelling types, built forms, building heights, front setback treatments and front fences. There are no evident prevailing, or defining, characteristics other than the residential land use. On-street parking is provided on both sides, as is street tree planting.

[42]

The Hawksburn Village Final Structure Plan ('HVSP') was adopted by council in August 2016 and updated in October 2020. The submissions and evidence confirmed that the HVSP forms the strategic basis for Amendment C272 to the Planning Scheme, which was the amendment that introduced DDO21.
The HVSP is not identified as an incorporated document, a policy document or a background document in the Planning Scheme. Being a document adopted by council, pursuant to section 60(1A)(g) of the Act it may be considered before deciding on an application, if the circumstances appear to so require. In addition, a general requirement of DDO21 is that new development be designed to contribute to and enhance the scale, materiality, identity and character of Hawksburn Village, as described in the HVSP.
As relevant to the assessment of this application, the HVSP shows the subject land as being within the Western Precinct (i.e. west of Willams Road) and provides as follows:
- the Western Precinct comprises a range of medium to larger commercial and light industrial buildings, in contrast to the fine-grain retail area in the Eastern Precinct (i.e. east of Williams Road)
- there are selected buildings on the south side of Malvern Road between Miller Street and Francis Street which hold an industrial character worth respecting or retaining. Their built form typology displays a medium grain, large but typically plain parapets with wide door and window frames
- redevelopment proposals in the Western Precinct should respond to and retain the light industrial built form and character including the medium to large grain frontages
- the Western Precinct consists of a mix of medium grain light industrial, commercial and mixed-use developments
- the proposed five-storey height for most areas in the Western Precinct responds to the prevailing character while allowing for adequate growth and revitalization
- for the subject land a maximum height of five-storeys with a street wall height that responds to the existing street wall character of two-to-three storeys along both the Malvern Road frontage and the Miller Street frontage/sideage. At the rear, a street wall height that responds to the existing street wall character of two-storeys. An interface that responds to mid-rise residential areas is also shown at the rear
- objectives of the Western Precinct include establishing a more diversified land use mix and reflecting and celebrating the industrial character. Strategies include redevelopment of underutilised larger sites on the south side of Malvern Road, encouraging new development that builds on the existing light industrial character, and new development providing laneway enhancements to improve amenity and safety
- in respect of the laneway abuttal, rear elevations should step down to an 8.0 metre wall height to avoid amenity impacts to adjacent residential development outside the activity centre. No setback is required from a laneway with an existing minimum width of 4.5 metres. Above first-floor level (i.e. second storey) rear elevations are to be generally set back behind a 45-degree plane to manage visual bulk. Height should increase in two-floor increments
- in respect of Miller Street, in order to reinforce the existing streetscape character, development should be set back an average distance of the setbacks of the front walls of existing abutting properties or 3.0 metres, whichever is the lesser. A two-storey street wall is applied, with upper levels to be generally set back behind a 45-degree plane
- to respond to the industrial character, the façade of new buildings is to retain or reflect evident existing industrial character with features to be incorporated including a medium grain (12.0-14.0 metres in width); large and simplistic parapet design in width; and wide door and window frames. To avoid an overbearing relationship with the street, upper levels must be set back 5.0 metres from the street wall.

[43]

As we understand it, there is no dispute between the parties present at the hearing that the proposal is consistent with policies which promote development in activity centres as a means of making greater and more efficient use of existing infrastructure and services, including public transport. These policies and strategies are detailed at clauses 11.01-1L-01, 11.01-1R, 11.03-1S and11.03-1L-01, and include the following:
- focus investment and growth in 'Activity Centres - Housing Choice and Stations'
- encourage the concentration of major retail, residential, commercial, administrative, entertainment and cultural developments into activity centres with good public transport services
- support the continued growth and diversification of activity centres to give communities access to a wide range of goods and services, provide local employment and support local economies
- support uses and development in local areas that have the effect of localising employment, shopping, education, recreation and other daily activities, and reducing the need to travel
- maintain and enhance a network of sustainable and viable activity centres
- consolidate retail and commercial land use activities within the existing activity centres (activity centre, commercial and mixed use zones)
- support active uses at ground level, and proposals that achieve more commercial uses on upper levels, including offices uses.
We agree that the proposal is consistent with, and will further implement, these policies.
Also relevant are policies at clause 17 that support employment and economic activity, particularly in well-serviced locations. Among others, these policies seek a diversified economy, including facilitating growth in a range of employment sectors and improving access to jobs closer to where people live.
Again, we agree with submissions and the evidence that the development and use of the land for shop and office purposes will generate employment opportunities and contribute to the economic viability of the activity centre. The proposal is consistent with, and will further implement, these policies.
The proposed uses do not require a permit, and no party sought to argue that the use of the land for shop and office is unacceptable. What is in dispute is the scale, form, layout, design and height of the development.
Clause 11.03-1L-01 provides a series of built form strategies for activity centres. Clause 15.01 details policies and strategies for the built environment. We will not set these policies and strategies out here. We refer to them, as relevant, in a later section of these reasons where we address whether the development represents an acceptable built form outcome.

[45]

Respondents Stefanos Grammenos and 'Maria Grammenos, Georgia Grammenos and Others' ('Grammenos respondents') submitted that 'the proposed amendments are 'fundamentally inconsistent' with the King David School principles,[8] which cautions against using the permit amendment process to revisit or substantially alter the outcome of a mediated or Tribunal-issued permit without sound justification'.
Before proceeding to consider the submissions of the Grammenos respondents and those of the applicant in respect of this issue, it is useful to provide the relevant details of the Tribunal's decision in King David.
The King David case concerned a permit that had been issued by the Governor-in-Council, on the recommendation of the Minister for Planning, for use of land for a school and a dispensation of car parking.
Council had issued a Notice of Decision to Grant a Permit and objectors to the planning permit application had lodged an application with the Tribunal for a review of that decision.
The Minister for Planning called the application, in pursuant to clause 58, schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The application was referred to a panel to consider submissions.
The permit was issued on 30 September 2010 and contained conditions recommended by the panel.
On 18 October 2010, an application was made to the Tribunal pursuant to section 87A of the Act to amend four of the conditions. At the hearing of that application, council and objectors expressed concerns that the section 87A process was being used as a re-hearing or an endeavour to secure conditions more favourable that those contained in the permit.
The Tribunal accepted that the flexibility in the section 87A process contemplates amendments to clarify the ambit or intent of a permit, to 'tidy-up' conditions or allow modifications that respond to unforeseen circumstances as a proposal proceeds. Other examples cited include an amendment that responds to different market conditions or opportunities that arise after the permit was issued or changes arising from the detailed design, construction or financing of a project.
However, the Tribunal expressed concerns with the process being used to seek more substantive changes shortly after the permit is granted where those changes appear to be directed to seeking a more favourable outcome than contemplated by the Tribunal decision which led to the grant of the permit.
The following extracts from the decision detail the Tribunal's consideration and findings:[9]

[46]

[16] That said, there are some aspects of the principles that apply to 'repeat appeals' that are relevant to the Tribunal's consideration of a s 87A application to amend a permit, particularly only a very short time after it has issued. Public policy seeks to ensure that there is some finality to litigation. It is to the detriment of the planning system generally, and to the certainty of the permit review process, if permit applicants are able make repeated applications to the Tribunal on similar subject matter, as a basis for simply seeking to change an earlier Tribunal decision with which they do not agree. It undermines confidence in the planning system by affected parties (primarily responsible authorities and objectors) and the community at large, as well as imposing an additional cost burden on them. > > [17] We consider that the flexibility afforded by s 87A should not be used to undermine the intent of the original Tribunal decision unless there is some sound justification for doing so. In short, s 87A should not be used as a de facto review of the original Tribunal decision in order to seek a more favourable outcome, or as an attempt to 'win back' development aspirations that were not supported in the original Tribunal decision. In our view, this would rarely (if ever) be "appropriate" for the purposes of s 87A, as it would undermine the finality and certainty of the review process. We therefore consider a degree of caution should be exercised by the Tribunal under s 87A in making substantive changes to key permit conditions upon which an original Tribunal decision was predicated - at least in the immediate period following the original Tribunal decision and in the absence of a change of circumstance or some other good reason that makes it "appropriate" to do so. > > [18] In our opinion, these principles do not only apply where the original decision of the Tribunal is set out with detailed reasons. They apply equally to a situation where the Tribunal decision comprises a consent order following mediation or a settlement, so as not to undermine the basis of that consent outcome. These principles also apply where the Tribunal decision is a 'deemed' order of the Tribunal following a call-in, as in this case. > > [19] We have some apprehension that the proposed changes to Conditions 13 and 16 in this case fall within this category. Here, the s 87A application was lodged only three weeks after the permit had first issued, and the amendments proposed to Conditions 13 and 16 seek substantive change from what appears contemplated by the Governor-in-Council decision.

[49]

The applicant does not agree. In detailed written and oral submissions that addressed the relevant case law and the circumstances of this application, the applicant argued the proposal is not inconsistent with the King David principles and would not undermine (or seek to undo) a mediated outcome.
In summary, with reference to King David and cases where an application made pursuant to section 87A sought to 'win back' an element that was forgone through the mediation process or sought to otherwise undo a mediated outcome,[11] the applicant submitted:
- the modification agreed to by the parties at the compulsory conference was not in respect of the overall height of the development. The proposal considered by council (and by the parties in the compulsory conference) in that case was a five-storey building, having been reduced from the original six-storeys proposed at the time the planning permit application was lodged. The planning permit application was amended pursuant to section 57 of the Act to reduce the height by one storey before the application for a review of council's failure to grant a permit was lodged with the Tribunal
- the modification agreed to by the parties at the compulsory conference was a reduction in the height of the southern boundary wall from 13.5 metres to 8.0 metres, with a 45-degree plane for the built form above. This has not changed, and forms part of the current proposal. The application is not seeking to undo this mediated outcome
- a period in excess of five years has passed since the permit was issued. This is not a situation where an amendment to the permit is being sought within a short time after it has issued
- there has been a change of circumstance since the issue of the permit comprising site consolidation and a partial change of ownership.[12] The proposal is notably different to that which is currently approved as it has been amended to utilise the additional land and presents a different scheme
- a proposition that a mediated outcome cannot be modified is not supported by case law. The fact that a permit was issued as an outcome of a mediated agreement does not preclude an assessment of the amendment on its merits. Contextual considerations, such as a change in circumstances, are relevant when considering whether it is appropriate to amend a permit which was issued following a mediated outcome.
On the basis of the facts and circumstances of this case, we consider that the principles and findings in Marone and 478 St Kilda Road, while of some relevance, have limited application in our consideration of the application. This is because, based on the material and information provided, we are not persuaded that the proposal is seeking to undo a mediated outcome.
The applicant has demonstrated that the modification to the built form agreed at the compulsory conference was confined to the southern elevation where the boundary wall was reduced from 13.5 metres to 8.0 metres, with the levels above receding in a 45-degree plane. That wall height and building profile are retained in the current proposal and are not sought to be altered, other than noting the minor increase in the boundary wall height, in part, to 8.1 metres which we consider to be inconsequential.
To the extent that the Grammenos respondents submitted that the reduction in height from the original six storeys proposed to five storeys was an outcome of negotiations held during the consideration of the planning permit application, we are not persuaded that this is what is contemplated in cases which have considered mediated outcomes in the context of applications made pursuant to section 87A of the Act. In all cases, the mediated outcomes were those achieved as part of the Tribunal processes and subsequent to the lodgement of applications for review. We are not persuaded that this extends to include any negotiations held prior to the lodgement of the application with the Tribunal. No case law to support such a proposition was provided.
We agree with the applicant that the proposal is not inconsistent with, nor will it offend, the King David principles. It does not attempt to 'win back' anything 'given up' or foregone at the compulsory conference. The circumstances have changed, notably comprising site consolidation creating the opportunity for a larger development spanning several lots and necessitating a different design response. Further, a not insignificant period of time, five years, has elapsed since the permit was issued. It is not a situation where amendments are being sought in the period shortly after the issue of the permit.
Although the sixth storey was not proposed or contemplated in the proposal that was the subject of the original application to the Tribunal, this does not preclude its consideration as part of this application. The current proposal must be assessed on its merits having regard to such matters as the relevant policies and provisions of the Planning Scheme and the physical and strategic context of the subject land. We undertake this assessment in the following sections of these reasons.

[63]

Greater specificity for the desired or envisaged built form outcome for the subject land is found in the provisions of DDO21, which we will refer to in our assessment and consideration which follows.
The Grammenos respondents submitted that several aspects of the built form are unacceptable because of their visual prominence and bulky appearance, which is an outcome of the increased height and the extended site. The building now reads as a singular form that they said does not respond acceptably to the established and emerging character of the area.
In particular, they submitted the visual bulk will impact the amenity of the dwellings to the immediate south, being excessively visible from their secluded open spaces (rear yards) and, for No. 3 Miller Street, impacting the outlook from its habitable rooms that have windows directly on to the laneway.
They further submitted that the extension to the west now causes the building to intrude into the residential environment of Miller Street, failing to provide an acceptable transition to the residential context and failing to respond appropriately to the requirements of DDO21.
Council is mainly concerned with the visual impacts on Miller Street and the failure to meet the discretionary requirements of DDO21. It is also concerned about the visual impact of the increased height on the approach from the east along Malvern Road, saying that at the increased height it would be the tallest form in this strip, due partly to the generous floor-to-floor dimensions. Council submitted that the additional visual impact upon the dwellings to the south is marginal and is acceptable in the context of residential areas adjacent to an activity centre.
We will consider the visual bulk impacts upon the neighbouring properties in a later section of the reasons.
In our view, based on the submissions, the key questions in relation to built form then become:
- Is the address to Miller Street acceptable, notwithstanding its non-compliance with the discretionary requirements of DDO21?
- Is the presentation to Malvern Road acceptable, particularly from the eastern approach?
- Is the architectural design acceptable?

[65]

Council and the Grammenos respondents submitted that the controls applying to Area 1 are intended to achieve an acceptable transition to the residential context, and implement the general requirements of DDO21 including:
- Be designed to contribute to and enhance the scale, materiality, identity and character of Hawksburn Village, as described in the HVSP.
- Provide a sensitive design response (including a transition in building scale and height) where there is an interface with an area of public open space or a residential property or residential area.
- Contribute to additional landscaping along residential street frontages.
They submitted that the extent of variation required is indicative of a failure to provide an acceptable transition to the residential context.
The applicant submitted that the proposal responds to the residential context because of the setback from Miller Street, combined with the 45-degree setback above the street wall from the south. Although this combination does not fully meet the discretionary requirements of Area 1, it submitted that, in effect, the reduced scale to the south provides an acceptable transition.
The applicant relied upon the evidence of Ms McAllister and Ms Jordan.
Ms McAllister was satisfied that the sloped form towards the south, combined with the setback of the street wall to provide space for the driveway, provides an appropriate reduction in scale towards the residential context.
She notes that the street wall treatment continues the high-quality brickwork framework from the Malvern Road façade, and the two-level entrance slot provides further visual interest.
Ms McAllister observed that Miller Street is a relatively varied streetscape with a mix of houses and apartments and limited front gardens, and notes that the site opposite has now redeveloped into a three-storey form replacing what was a cottage form. She is satisfied that, given the more robust nature of Miller Street, the transition provided by the 45-degree form set back behind the street wall provides an acceptable transition.
Ms Jordan generally agreed with Ms McAllister.
Ms Jordan noted that dealing with two 45-degree planes causes complex interrelationships. It works when sites are developed individually but in a consolidated site it causes complexity.
In addition, the HVSP has nominated one street wall height anticipating some consistency across the two areas.
Ms Jordan said it is only a small part of the fifth floor and a 'sliver' of the sixth floor that sits above the 15 metre preferred height of Area 2 and provided a diagram to illustrate this.
However, Ms Jordan recommended that the street wall be reduced in length by one narrow bay, in order to allow more of the western wall with the 45-degree slope to be exposed. In her view this would provide a more acceptable transition to the residential scale of Miller Street and would provide more opportunity for landscaping. She considers this would respond to the general requirements calling for a contribution to additional landscaping in residential street frontages, in the form of a planter box to supplement the vertical planting.
Ms McAllister did not agree this was necessary, citing amongst other reasons, the relatively robust character of Miller Street. However, she recommended, if the Tribunal were to adopt this recommendation and desire a more substantial planting opportunity, that a single 'wide' bay be removed from the street wall thus retaining the narrow bay to complete the composition of the façade in a balanced way.
The applicant submitted that the designation of Area 2 to 1 Miller Street did not anticipate the potential for site consolidation, and to require the additional 45-degree setback from Miller Street would compromise the commercial floorspace for little effect.
We agree with the applicant that the Miller Street context is relatively robust. It is not a typical low-scale residential environment made up of cottages with gardens, as can be found elsewhere in this locality.
We find Ms McAllister's and Ms Jordan's evidence persuasive. The diagrams make it evident that the extent of non-compliance is relatively confined and is well-removed from the nearest houses.
We accept Ms McAllister's evidence that in assessing the non-compliance of the street wall, it is relevant to consider the value of returning a consistent and high-quality streetscape from the Malvern Road frontage. We accept her evidence that the architectural articulation of the street wall including the bold framing and the inclusion of an entrance void makes a positive contribution towards an acceptable transition.
Despite this, we find that it is the street wall that will have the most direct impact upon the street context because it is on the boundary. For this reason, we find that the extent of non-compliance with the Area 2 requirements in DDO21 does not adequately achieve the desired transition.
Rather than requiring a 'step down' of the street wall within all or part of the Area 2 frontage, we find it preferable to shorten its length as explored in the hearing, which we will discuss further below.
We are not persuaded that an additional 45-degree slope should be applied to the upper part of the main building form given that the extent of non-compliance is limited to parts well-removed from the nearest houses We consider that the 45-degree slope of the main building form, that extends from an effectively compliant southern wall, will provide an appropriate transition given the relatively robust character of Miller Street with its mix of houses and apartment buildings.
We are also persuaded that there is further development potential in Miller Street given its activity centre context.
We agree with the Council and the Grammenos respondents that there should be an effective contribution to the 'greening' of the street. Miller Street is a residential street and, although relatively robust, we do not consider the limited 'greening' provided by vertical planting is sufficient to respond to the general requirement to provide additional landscaping.
Further, we are concerned that the alignment of the return of the street wall with the accessway to the parking will appear to be a matter of convenience rather than a contribution to the streetscape. We agree with Ms Jordan that greater exposure of the raked western wall will improve this appearance.
We find that the street wall needs to be pared back and that there needs to be a meaningful contribution to 'greening' of the street. Sufficient space for a medium-sized tree in a planter should be provided in the space relieved by paring back the street wall. A planter should be of sufficient size and volume to house a medium-sized tree to complement the adjacent street tree.
We agree with Ms McAllister that this is best achieved by removing one full bay of the street wall, leaving the narrow bay to terminate the street wall. This will minimise the non-compliance of the street wall with the Area 2 requirements of DDO21.
With this change, we are satisfied that the proposal meets the design objectives of DDO21 and will represent an acceptable built form transition in the Miller Street context.

[68]

Council noted that by seeking to add a level to the building and increase the maximum height by 4.3 metres it will result in a maximum height of 25.2 metres.
Council has no in-principle objection to the increased height as it is comparable with other recent approvals in the DDO21, west of Williams Road. However, council considers the top floor must be highly recessive.
In council's submission, the 10.0 metre setback to Level 5 from Malvern Road is sufficient to render this level highly recessive. As is the 7.0 metre setback to Miller Street. However, concerns exist with the visibility of Level 5 from the rear and also from the east side where it is set back only 1.5 metres from the side boundary. Council submitted it should be set back a further 1.5 metres.
Council is concerned that from the eastern approach, the proposed building will appear much larger than the emerging built form in the HNAC, partly because of proximity (being in the foreground) and partly because other six-storey buildings have a lower floor-to-floor height.
The applicant argued that the difference in height is unlikely to be noticeable, observing that the streetscape west of Williams Road is quite varied without the heritage constraints east of Williams Road.
It relied on Ms McAllister's evidence that comparison with residential floor-to-floor heights is not reasonable. The taller heights used for this office building provide flexibility which will make the development more attractive for a range of uses. The evidence is that there is clearly a pattern moving towards six-storeys and another fully commercial development is likely to extend to a similar height.
Ms McAllister advised that it was her recommendation to introduce a 1.5 metre setback from the east for the upper floor. In her opinion this provides articulation and interest to the façade by allowing the upper level to be glimpsed. She said this complements the composition of the eastern façade with the expressed vertical slot (that was not part of the approved design) and the textured lower part of the wall. Ms McAllister did not consider it necessary or desirable to try to conceal the uppermost level by a further 1.5 metre setback as sought by council.
In addition, Ms McAllister noted that the sites to the east of the subject site are also development opportunities under the same DDO21 controls; the visual bulk of the proposal from this direction is likely to be at least partly masked in future. She also noted that the photomontage evidence illustrates that a built form on the adjoining site to the east that met the discretionary height and setback requirements would effectively conceal the uppermost level.

[71]

As noted, the Grammenos respondents submitted that the enlarged building is not sufficiently articulated to break up its scale, particularly from Miller Street.
They submitted that, by extending the form westwards, without any further articulation or change of material, the building will read as an oversized object out of character with the scale of the residential context.
They said this is not assisted by wrapping the street wall treatment to Malvern Road around the corner into Miller Street, which further accentuates the form as a single large development.
They note that the proposed development is built entirely to the boundary, except for minor setbacks at the entries on Malvern Road and Miller Street. They consider this results in a continuous, unrelieved built form that lacks the modulation or separation typically expected in a transitional interface between commercial and residential zones. It was submitted that the absence of meaningful breaks or articulation along the southern edge exacerbates the visual dominance and massing of the proposal as it relates to No. 3 Miller Street and to the Miller Street residential environment.
The applicant said that visibility to a large building has to be anticipated in a residential area adjacent to an activity centre. It relied on Ms McAllister's evidence and submitted that the building is well-articulated and the sloping form means that the higher forms are well-recessed from the residential context.
It was Ms McAllister's recommendation to introduce the entrance slot into the street wall facing Miller Street. In combination with the sloped form, she was satisfied that an appropriate transition is achieved, noting that Miller Street is quite mixed in character.
Ms McAllister's evidence is that the architecture provides a considered design response, with a shift in details and expression across the Malvern Road street wall reducing the visual width of the frontage at street level into a smaller grain while the raking form of the upper levels will make a more complex and visually interesting transition to the lower residential neighbourhood to the south.
She noted that the uppermost level would not be visible from opposite the site in Miller Street and only glimpsed from oblique views close to the building. While it would be visible from further into Miller Street, it would be viewed in the context of larger forms in Miller Street and with the potential for two storey development of the existing cottages, in her opinion the composition of the proposed building will be acceptable.

[82]

Overshadowing diagrams are included in the application plans. According to Ms Jordan's evidence 'some inconsistencies to the shadow diagrams included in the amended plans set' were identified. The evidence goes on to state that those matters were addressed by the project architect and a revised set of shadow diagrams, forming part of what were referred to as 'the information plans', was provided.
In respect of the overshadowing impacts, Ms Jordan's evidence states:
1. The corrected shadow diagrams (included with the information plans) demonstrate that the secluded private open space (SPOS) to 3 Miller Street is at least partly within shadow between the hours of 10AM and 2PM at the equinox. The proposal does not increase the extent of shadow cast over the SPOS to 3 MiIler Street and therefore the variations to the preferred built form requirements of DDO21 are not generating additional overshadowing impacts when compared to both the preferred massing outcome and existing conditions.
2. To assess any impacts to the opaque, north facing windows on the existing dwelling at 3 Miller Street, I requested that elevational shadow diagrams be prepared for existing conditions, proposed conditions and under a compliant DD021 massing scenario. I have been instructed these additional diagrams have been provided to the Tribunal and parties.
3. Whilst the proposed massing diagrams result in additional shadow being cast over the existing windows, the extent of additional shadow is not significantly different to the compliant DDO21 massing scenario.
4. On this basis, I am content that the overshadowing impacts to the existing north facing windows are commensurate with the expectations of DDO21
Although the Grammenos respondents expressed doubts regarding the accuracy of the overshadowing diagrams there was no evidence or material presented, such as a set of diagrams showing what they would say is an accurate depiction of the shadows which will be cast by the development, in support of these submissions. We have no basis to conclude that the overshadowing diagrams are inaccurate.
We note that the provisions of DDO21 do not require that there be no overshadowing of north-facing windows of adjoining residential properties but, rather, that any such overshadowing is minimised. Having reviewed the shadow diagrams, we consider that this requirement is met.
We accept the evidence that the extent of proposed shadowing of the windows is similar to that which would be cast by a development with a building envelope that complied with the provisions of DDO21. This is demonstrated by the overshadowing diagrams. On this basis, we consider the extent of shadow cast on the windows is within the parameters contemplated by DDO21 and is acceptable.

[83]

With the exception of a minor 0.1 metre (10cm) partial exceedance, the southern boundary wall complies with the 8.0 metre preferred height specified in DDO21. Similarly, the receding profile of the building at a 45-degree angle above this height also complies with the discretionary requirement of DDO21. When this compliance is considered in the context of the relevant design objective to ensure that new development does not cause unreasonable amenity impacts on nearby residential land, the visual impact on the proximate residential properties is reasonable.
When closer examination is given to the design response and the layout of these residential properties, we are persuaded that the development will not present unacceptable visual bulk to sensitive areas, namely habitable room windows and secluded private open space. We say this for the following reasons.
The dwelling at No. 3 Miller Street has four north-facing habitable room windows. These windows will face the proposed southern boundary wall, separated by the laneway. Their outlook will be to a wall whose height is largely compliant with the requirements of DDO21. To the extent that a portion of the wall is 0.1 metre higher, this is for all intents and purposes negligible in the overall context of the development and will not have a perceptible impact on the outlook from the windows. Due to the proximity to the development, being the 4.5 metre wide separation provided by the intervening laneway, occupants of the rooms will not have views of that part of the building above the boundary wall. Even if such views were possible, they would be to a building with a receding profile in compliance with DDO21.
The secluded private open space of No. 3 Miller Street is positioned directly to the south of the property at 476-480 Malvern Road, which adjoins the subject land to the east. Occupants of the secluded private open space area have their northern aspect toward this property, which has a two-storey brick wall in the common boundary. The development will not alter this.
Although there are oblique views of the proposal in a north-westerly direction from the secluded private open space area, these do not differ from those of the approved development. To the extent that the proposed fifth storey may be visible, it will be largely obscured from view by the lower levels and will be at some distance.
Views of the development from the north-facing windows of the dwelling at No. 5 Miller Street will not be possible given their setback from the common boundary with No. 3 Miller Street and the intervening presence of the dwelling on that adjoining site.
The secluded private open space area of No. 5 Miller Street is 'framed' by the dwelling to the west, a series of outbuildings to the north and a garage structure to the east. Due to the width, height and siting of the outbuildings, views toward the subject land from the secluded private open space area are not readily obtainable unless standing proximate to the southern boundary of this space. As one circulates within, and utilises, the secluded private open space area, the development will not be readily visible or apparent. Views of it are obstructed by built form on that property. As with No. 3 Miller Street, to the extent that northward views may be gained, these are to that part of the development which is currently approved, with the remainder of the view being of the adjoining building at 476-480 Malvern Road. Any oblique views would be 'deliberate' rather than incidental and would principally be of that part of the building which is currently approved. The development will not have an unacceptable impact on the amenity of No. 5 Miller Street.

[84]

The Grammenos respondents' submissions raised concerns regarding the impact of noise emissions from the development on residential amenity. The identified emissions of concern include those from plant and equipment, from the use of the laneway for waste collection, and from the occupation and use of the terrace at Level 5.
Noise emissions from plant and equipment can be regulated by a permit condition which requires compliance with the Environment Protection Regulations 2021 (Vic) and the Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues.[13] A condition to this effect has been included.
We agree with council and the applicant that the use of the laneway for the collection of waste and recyclables is appropriate. It uses this thoroughfare for a utilitarian purpose consistent with efficient servicing of the development as part of the 'back-of-house' functions. That said, we agree with the Grammenos respondents that the direct interface of habitable rooms of the dwelling at No. 3 Miller Street and its windows with the laneway may give rise to noise impacts on the amenity of those rooms.
We do not consider that requiring the waste collection vehicle to prop on the street, adjacent to the laneway entrance is necessary in the circumstances. It is more efficient to have the vehicle collect the waste and recyclables from directly adjacent to the waste room. The collection can be taken in a more timely, and less disruptive, manner than having the bins wheeled to and from the vehicle.
To manage the noise impacts on the adjoining dwelling, it is appropriate that the days and times for the collection of waste and recyclables be regulated by a permit condition. A condition restricting collection times to 7.00am to 8.00pm Monday to Friday and 9.00am to 8.00pm on Saturday, Sunday and public holidays has been included.
With respect to loading/unloading of goods, we accept the evidence that this will typically occur using on-street car parking spaces, and note this will provide direct access to the ground-floor tenancies and to the lift lobby (for access to the upper level tenancies). Such direct access is not available from the lane, where the pedestrian entry leads to bicycle storage and end-of-trip facilities.
We do not share the Grammenos respondents' concerns regarding potential noise impacts from the use of the Level 5 terrace by occupants of the development. The terrace is oriented to the north and, to a lesser extent, to the west. These are the areas of the terrace with the greatest width and are therefore most likely to be occupied. That section of the terrace extending along the southern side is narrow and not suitable for gatherings. Consequently, any noise from occupants of the terrace would not be directed to the south, that is, noise would be directed away from the residential area. Should any noise from the occupation and use of the terrace constitute a nuisance, then there are other laws to deal with this.

[87]

The development is to provide 303 square metres of retail area and 4,524 square metres of office area.
Pursuant to clause 52.06-5, the proposal attracts a car parking requirement of 145 spaces. This is based on the specified car parking rates at this clause of 3.5 spaces per 100 square metres of leaseable floor area for the retail tenancies and 3.0 spaces per 100 square metres of net floor area for the office tenancies.
It is proposed to provide a total of 93 car spaces over the three basement levels, including two accessible spaces. This equates to a shortfall of 52 spaces when assessed against the requirement of clause 52.06-5.
Mr Gnanakone's evidence is that, within an activity centre context such as this, retail tenancies are likely to draw their custom from persons who are already in the area, rather than being destinations in their own right. The outcome is that car parking is required for staff only and a rate of one space per 100 square metres per leaseable floor area is appropriate. For the proposal, this equates to three spaces - two for the larger (201 square metre) tenancy and one for the smaller (102 square metre) tenancy.
For the office use, the evidence is that the proposed provision of car parking at a rate of 1.99 spaces per 100 square metres of net floor area is appropriate for the following reasons:
- The proposed parking shortfall compared to the statutory requirements is similar to that of the endorsed plans relative to the increase in the size of the development;
- Visitor parking demands can be accommodated within the short term on-street parking in the vicinity of the site;
- Reduced car parking provision assists with the desired reduction in private vehicle usage, therefore minimising traffic impacts in the vicinity;
- Reduced provision of on-site parking, thus reducing car parking demand, is in line with the objectives and strategies of City of Stonnington;
- The proposed development provides bicycle parking in excess of the Planning Scheme requirements, therefore providing an alternate means of transportation for residents and visitors to the site;
- The site has good access to cycling routes, providing improved cycling permeability to the surrounding area;
- The site has excellent access to public transport, with numerous train, tram and bus services in the immediate vicinity, providing alternative means of transport for residents with reduced car parking provision; and
- The presence of share car pods in the vicinity ensure that staff can have access to a vehicle during the working day if required.
We accept that the retail uses will largely draw their custom from persons who are visiting the activity centre, as part of a multi-purpose trip, and are also likely to include persons who work and/or reside in the activity centre or are residents of the adjoining neighbourhoods. Customers from further afield are able to utilise one of the several modes of public transport, or should they elect to drive, can park on-street. The short-term parking restrictions are conducive to such use.
For the office use, we accept the evidence that staff demand is typically dictated by the availability of car parking. In circumstances where parking is constrained by either time restrictions or availability, staff will utilise other modes of transport, such as public transport or bicycle. Staff generate demand for long-term (all-day) parking. The on-street parking in the vicinity of the subject land is short-term as it is time-restricted, or regulated by 'permit-only' use. It is not conducive to staff use. In the circumstances of this application, we accept the evidence that:

[89]

We also accept the evidence that further relevant considerations are the 'excellent' access to public transport, comprising tram, bus and train; good access to cycling routes, bicycle parking and end-of-trip facilities; and the existence of car share pods in the vicinity of the subject land.
We further note that the removal of an existing vehicle crossover in Miller Street will result in the creation of two on-street car spaces, and will assist in accommodating short-term demand associated with the retail and office uses.
The car parking provision is acceptable. As confirmed by the evidence, and the assessment undertaken by council's traffic engineers, the layout of the car park and access ways, including the basement ramp, complies with the relevant design standards at clause 52.06-9 and is acceptable.
Mr Gnankone's evidence is that the development will generate a total of 200 vehicle movements per day, with 48 vehicle movements in each of the peak hours. Miller Street has an existing traffic volume of 250-250 vehicles per day. Based on its cross-section, it has an environmental capacity of 2000-3000 vehicles per day. The proposal will result in a daily traffic volume of 450 vehicles, which is well within the street's environmental capacity. Further, as noted in the evidence, given Miller Street is a no-through-road, the traffic generated by the proposal will be confined to the northern end of the street, adjacent to the commercial uses and will not extend into the residential neighbourhood.
A SIDRA analysis of the Malvern Road/Miller Street intersection is included in the evidence. That analysis demonstrates that the intersection currently operates within its nominated capacity with a degree of saturation that does not exceed 0.345 across all movements. The development will not alter this.
What will change, however, is the delay experienced by motorists exiting from Miller Street onto Malvern Road. The evidence indicates that there is expected to be a 5.1 second increase in delay, to 39.5 seconds, for motorists turning right out of Miller Street during the PM peak period, when office staff are leaving for the day. According to the evidence, this would not be noticeable by a motorist. We agree. There is an associated increase in the queue length by one vehicle. This is not an unacceptable impact on the operation of Miller Street. We also note the evidence that, when queues are created in Malvern Road by virtue of the operation of the traffic lights at Williams Road, 'courtesy gaps' are provided by motorists for the vehicles exiting Miller Street. This assists in the movement of traffic and minimisation of queues.
The car parking provision and the traffic impacts of the proposal are acceptable.

[101]

Prior to the occupation of the building, 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 in accordance with the endorsed landscape plan, including that any dead, diseased or damaged plants are to be replaced.
All costs for the planting of the street trees on Miller Street as shown on the endorsed landscape plan must be borne by the owner and paid for at the time of planting. All works associated with the street tree planting (removal, species selection and planting) will be undertaken by Council.
The vegetation within the planter-boxes on the southern elevation must be maintained so that the vegetation height does not intrude into the building envelope with an angle of 45 degrees above a height of 8 metres above existing ground level at the south façade of the building.
Prior to the endorsement of any plans pursuant to Condition 1 are endorsed or prior to any development commencing on the site (including demolition and excavation whether or not a planning permit is required), the owner/ developer must enter into a Deed with the responsible authority and provide it with a bank guarantee of $13,178.00 as security against a failure to protect the health of the London Plane street tree in front of the site on Malvern Road to be retained. The applicant must meet all costs associated with drafting and execution of the Deed, including those incurred by the responsible authority. Once a period of 12 months has lapsed following the completion of all works at the site the responsible authority may discharge the bank guarantee upon the written request of the obligor. At that time, the responsible authority will inspect the tree(s) and, provided they have not been detrimentally affected, the bank guarantee will be discharged.
Before the development (including excavation and demolition) starts, a tree protection fence must be erected around the London Plane street tree on Malvern Road. Fencing must be compliant with Section 4 of AS 4970-2009 Protection of trees on development sites. Signage identifying the need for approval from the responsible authority for any root cutting (prior to it occurring) must also be displayed.
Prior to the endorsement of any plans pursuant to Condition 1 or prior to the commencement of any works at the site (including demolition and excavation whether or not a planning permit is required), a letter of engagement must be provided to the responsible authority from the project arborist selected to oversee all relevant tree protection works. The project arborist must be an appropriately experienced and qualified professional (minimum Cert IV or equivalent in experience).
The project arborist must maintain a log book detailing all site visits. The log book must be made available to the responsible authority within 24 hours of any request.
Prior to the commencement of any works at the site (including demolition and excavation whether or not a planning permit is required), the project arborist must advise the responsible authority in writing that the Tree Protection Fences have been installed to their satisfaction.
A copy of the tree protection zones are to be included in any contract for the construction of the site or for any other works which may impact upon the trees.
The permit holder/developer must advise Council in writing that a Certificate of Occupancy has been issued in respect to the development and that the 12 month establishment period has commenced.
No vehicular or pedestrian access, trenching or soil excavation is to occur within the structural root zone of the Street Tree on Malvern Road (2.9m radius around the trunk of the tree) without the written consent of the responsible authority. No storage or dumping of tools, equipment or waste is to occur within the structural root zone.
Any services installed within the TPZ of the London Plane street (8.76m radius around the tree trunk) must be carried out using Non-Destructive Digging techniques, with Council to inspect any roots encountered during this process.
Prior to the endorsement of plans pursuant to Condition 1, a Waste Management Plan must be submitted to, and be approved by, the responsible authority. When approved, the Waste Management Plan will be endorsed and will then form part of the permit. The Waste Management Plan must be generally in accordance with the Waste Management Plan dated 19 February 2025 but modified to:

[105]

Prior to the occupation of the building, any screening devices shown on the endorsed plans designed to limit overlooking 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.
Prior to the occupation of the building, the walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the responsible authority.
Noise emanating from the land must not exceed the prescribed limits of the Environment Protection Regulations 2021 (Vic) as measured in accordance with Environment Protection Authority Publication 1826 (Noise Protocol) 'Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues'. Any works required to ensure and maintain the noise levels from the plant and equipment area in compliance with the Environment Protection Regulations 2021 (Vic) must be completed before the development is occupied and must be maintained to the satisfaction of the responsible authority.
Before a building permit is issued, a report for the legal point of discharge must be obtained from the responsible authority and a drainage design for the development must be prepared by a Registered Professional Civil Engineer (VIC) in accordance with all 'recommendations' and requirements contained in that report. All drainage must be by means of a gravity-based system and not pumped, with the exception of runoff from any basement ramp and agricultural drains which may be pumped. The relevant building surveyor must check and approve the drainage design and ensure that protection of the building is provided from a 1 in 100 A.R.I. rainfall event as required by the Building Regulations.
The drainage and associated agricultural drains for the basement must be isolated and protected from any surcharge from the Council drainage (Note: the surcharge is likely to occur on a frequent basis). It must be pumped to a surcharge pit within the frontage of the property and discharged by gravity (not pumped) from that pit to the Council drainage.
Before an 'Occupancy Permit' is issued, a Registered Professional Civil Engineer (VIC), must carry out a detailed inspection of the completed stormwater drainage system and associated works including all water storage tanks and detention (if applicable) to ensure that all works have been constructed in accordance with the approved design and the relevant planning permit conditions.
The existing footpath levels of Malvern Road and Miller Street must not be lowered or altered in any way (to facilitate the new development levels).
All redundant vehicular crossings must be removed and the footpath and kerb reinstated at the owner's cost to the satisfaction of the responsible authority.
Before a building permit is issued, a Development Infrastructure Levy must be paid to Stonnington City Council pursuant to Schedule 1 to the Development Contributions Plan Overlay of the Stonnington Planning Scheme and the approved Stonnington Municipal-Wide Development Contributions Plan (2020-2040), January 2023. The levy amount payable will be annually adjusted on 1 August each year in accordance with the Consumer Price Index (CPI) and calculated at the time of payment.
This permit will expire if one of the following circumstances applies:

At a glance

Court

Decision date

Source

Judgment (116 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (1)

Nero Corporation Pty Ltd v Stonnington CC [2025] VCAT 901 (5 November 2025)