Victorian Civil and Administrative Tribunal|2008-12-01

Ninety Four Feet Pty Ltd v Port Philliip CC [2008] VCAT 2484 (1 December 2008)

Two and three storey apartments; Neighbourhood character; Adequacy of setbacks from the front, side and rear boundaries; Daylighting; Visual bulk; Removal of a large Oak; Car parking; Vehicular access; Bicycle parking; Overlooking; Overshadowing

Ninety Four Feet Pty Ltd v Port Philliip CC [2008] VCAT 2484

The responsible authority's decision in permit application 343/2008 is set aside.
The booklet of plans by Carabolt Holt Architects TP 00-TP25 version F dated 26/10/08 are substituted for the application plans.
The responsible authority must issue a permit for development of 29 dwellings in accordance with the endorsed plans and conditions.
The conditions to be inserted on the permit are contained in Appendix 1 of this decision.

Mr Chris Canavan QC with Ms Tamara Brezzi, solicitor of Deacons. Mr Canavan called evidence from:

Ninety Four Feet Pty Ltd lodged an Application for Review concerning the failure of Port Phillip City Council to determine Application 343/2008 within the prescribed time[1].
Subsequent to the lodgement of the application for review, Port Phillip City Council advised that if it had the power it would have issued a Notice of Decision to Grant a Permit subject to various conditions. Some of these conditions included a requirement for a greater upper level setback from the western boundary, greater setbacks from the Lansdowne Road frontage and other modifications including correction of documentation to ensure that plans and elevations were complementary.
After lodging the application for review the applicant sought amendments to the plans and circulated these to all parties and all persons who would normally notified of an application for permit. The amending plans reduced the height of two of the three buildings from three storey to two storey, relocated the vehicular access from the rear laneway to the Lansdowne Road frontage, and also altered the development by increasing the number of dwellings from 18 to 29. The carparking layout was also modified.
Chris Spillane and other residents of Lansdowne Road and Shirley Grove opposed the grant of a permit. They are concerned about:
- Some of the documentation on the plans being incorrect or inconsistent
- The proposal being out of character with surrounding property particularly single storey buildings to the west and south
- Concern about the inadequacy of infrastructure to cater for the proposal
- Excessive building height
- Inadequate landscaping opportunity and concerns about removal of a significant tree
- Impact on traffic and parking
- Amenity impacts through overshadowing and visual impact of the building
- Onsite amenity impacts and inadequate dwelling identification
- Inadequate storage and contrary to the Municipal Strategic Statement
The applicant argued:
- The site represents an excellent opportunity for a more intensive form of residential development having regard to the characteristics and features of the land
- The proposed development will assist in achievement of Melbourne 2030 objectives
- The buildings have been designed in a sensitive manner that limits offsite amenity impacts while ensuring that the quality of amenity for future residents is of a high standard
- The proposal is contemporary in nature and will sit comfortably with the diverse range of building styles that exist in Lansdowne Road and in this area of East St Kilda
The matters for determination in this application are:
- Is the proposed development respectful the neighbourhood character?
- Are there offsite amenity impacts that produced an unreasonable outcome?
- Is the method of access and car parking adequate for this proposed development?
- Are the setbacks from the front, rear and sides reasonable?
- Are there adequate landscaping opportunities for this proposed development having regard to the neighbourhood character?
- Should the building on the western elevation have greater setbacks?

It is proposed to develop two lots with three separate buildings above a basement car park for 29 dwellings with provision for 44 car parking spaces. Vehicular access to the car park would be via ramp from Lansdowne Road. There will be six one bedroom dwellings and 23 by two bedroom dwellings. Dwellings on the Lansdowne Road frontage and the south-easternmost block will be town house style whereas the western building will comprise apartments. Most walls will be set back off side boundaries, with the exception of the north-western wall to apartments 2 and 8 which abut a rear laneway and there are townhouses that have stairwell/basement entry and a walls abutting the northern property boundary.
The front building facing Lansdowne Road would generally 6.8 to 7 metres high although parts of it will rise to 8 metres in one corner of dwelling 2. The rear buildings will be up to 9 metres in height. All buildings will have flat roofs. The two buildings in the rear section of the site will be aligned north/south whilst the front building will be in an east west alignment.
The architectural style is contemporary and will generally display simple boxed elements arranged vertically and horizontally. The townhouses facing Lansdowne Road will have two protruding balcony elements arranged within a front facade mainly of face brick and coloured elements. The front two buildings to Lansdowne Road are set back a minimum of 8.5 and 9 metres to their entries and up to 10.9 metres to provide for the retention of an existing large mature Bush Cherry tree.

The subject site is located on the western side of Lansdowne Road about 45 metres south of Dandenong Road in East St Kilda. The site has a frontage of 15.2 metres to Lansdowne Road and runs through to a rear lane. It widens out into an "L" shape so that the abuttal to the lane is about 41 metres giving a total area of 2200 square metres. The front lot contains an old Edwardian dwelling in poor condition surrounded by mature canopy and understorey vegetation. Much of this lot is overgrown and many of the trees are in decline. It contains two significant trees, the Bush Cherry and an Elm tree. The rear portion of the site contains two tennis courts with various lean to outbuildings and fencing which is in relatively poor condition.
Land to the immediate north in Lansdowne Road comprises a three storey block of flats that fronts Dandenong Road. Land to the immediate south comprise a two storey block of apartments. Along Dandenong Road there are other two and three storey blocks of flats whilst south of the site in Penleigh Court is a combination of one and two storey dwellings. In particular, there is a recently developed two storey apartment at No.6A and a single detached house at 8 Penleigh Court which have immediate abuttals. Land behind is a 4.7 metre wide constructed bluestone laneway and land on the other side of this lane fronting Shirley Grove comprise single storey Victorian or Edwardian dwellings and a two storey block of flats. Each of the properties have vehicular access gained from this right-of-way. Some of them have open space or there is also single storey garages or carports.
Lansdowne Road is a relatively wide street with parallel parking on both sides. There are substantial street trees. Nearby Dandenong Road is a large metropolitan arterial road with trams running along the centre.

The subject site and all surrounding properties are zoned Residential 1 under the Port Phillip Planning Scheme. The relevant purposes of the zone are :
- To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
- To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.
- To encourage residential development that respects the neighbourhood character.
A permit is required pursuant to Clause 32.01-4 to develop more than one dwelling on a lot. This clause then triggers an assessment under Clause 55 (Rescode).
There is a host of State and Local planning policies which guide discretion in this matter, but more particularly:
- Port Phillip Vision (Clause 21.04-7)
- Residential Land Use (Clause 21.05-1)
- Neighbourhood Character (Clause 21.05-3)
- Urban Design (Clause 21.05-4)
- Neighbourhood Character Policy (Clause 22.01)
- Urban Design Policy for New Residential Development (22.05)
- Housing Policy (Clause 22.09)

At the review hearing Mr Canavan, Ms Cincotta and Mr Spillane provided detailed written submissions and supplemented these with oral presentations. Mrs Pilsky made an oral presentation. All witnesses provided detailed written submissions and supplemented these with oral presentation and were available for cross examination.
At the commencement of the hearing Mr Canavan sought leave to substitute plans by Carabolt Holt version F dated 26 /10/08. There was discussion about the method of notification but no objection to this substitution. Accordingly, the plans were substituted pursuant to section 64 of Schedule 1 of the VCAT Act 1998.
Following the review hearing I undertook an inspection of the subject site, 6A and 8 Penleigh Court. I also attempted inspections of 1, 3,7A and 7 Shirley Grove (without success). I subsequently viewed the laneway between the subject site and the properties fronting Shirley Grove and was able to view each of the rear yards/car parking areas of those properties from the laneway.
Following the review hearing I reconvened the hearing for 1 December 2008 and provided an oral decision with reasons. For the benefit of the parties these are provided in summary form.

I am satisfied that the proposed development is supported by State and Local planning policies. The site is located in close proximity to one of the major metropolitan arterial roads with good access to public transport. Its northern abuttal is primarily three storey high density buildings. There are no sensitive northern interface issues with the three storey development and abutting carports, driveways, old brick sheds or car park and utilitarian services.
The proposal has responded well to the usual amenity impacts derived from overlooking and overshadowing and visual bulk and with the exception of two setback issues for townhouses 9 and 12, is a sensitively designed and responsive proposal. There are some interface issues with the properties to the south but I will deal with those separately. There is an interface issue to the west brought about by the three storey height of the apartment building and the proximity of it to the 4.7 metre wide right-of-way.

The responsible authority supported the application on the neighbourhood character ground with the exception of the front setback to Lansdowne Road. In this case the responsible authority sought that the front two townhouses be brought forward to an 8 metre setback distance. The building is shown as a combination of 8.5 and 9 metres to the front entry details and up to 10.9 metres to the front wall apartment of Dwelling 1.
Mr Cincotta argued that the Council sought the building to be brought further forward to be more consistent with the setbacks found on buildings on the western side of Lansdowne Road.
The three storey apartment building to the north is set back about 4.5 metres from the street frontage and the closest part of the new apartment building at 6-10 Lansdowne Road is set back about 6 metres. This would require a setback under Standard B6 of the Planning Scheme of either 5.25 metres or 9 metres. In this case the Council's argument is somewhat different to what is normally required in metropolitan Melbourne where councils usually asked for setbacks to be increased to respect greater setbacks on adjoining properties in conventional residential suburbs. In this case, it seeks the building to be brought forward to avoid the "broken tooth effect".
The applicant argued this was inappropriate because they were attempting to retain an existing mature Bush Cherry (Lillypilly) in the front setback area and this greater setback was needed to protect the critical root zone and canopy of that tree.
Mr Spillane on the other hand raised no objection to the greater setback but was more concerned about the height of the building and more particularly the front screened section on the eastern and southern corner of Dwelling 2. He sought it be reduced by a metre in order to respect the neighbourhood character.
Whilst the Council wishes the building to be brought forward, it will potentially have an impact on the existing tree. This tree is a contributing element in the streetscape and the neighbourhood character, and it would be sad indeed to see it lost or put under pressure merely to push the building further forward. There are also design implications for the basement ramp and I consider that on balance, requiring the building to be brought forward by about one metre does not justify modification. It may also result in the building being raised further.
I also consider there is no justification to lower the front portion of the building merely because it is within one metre of the maximum height allowed within the residential zone. The building to the immediate north is three storeys in height, the building to the south is two storeys in height, so this building in both a streetscape and built form context provides a logical, well thought out, intermediate built form that has responded to both its site characteristics, the streetscape, and the neighbourhood context of Lansdowne Road. I consider it will be a positive contributor to the neighbourhood character and there is little justification to vary the layout of the front of it.
Mr Spillane also called on the Tribunal to delete the upper level of the rear building or at least support the Council's requirement to set the upper level back so that it did not have as great a visual impact on the rear of the Shirley Grove properties.
Mr Spillane also sought deletion of the third storey on neighbourhood character and amenity grounds. He claimed the neighbourhood character of Lansdowne Road was comprised of one and two storey buildings and I should not include the three storey buildings, particularly those that front Dandenong Road in any assessment of neighbourhood character. I disagree. I consider the neighbourhood character comprises one, two and three story buildings, often of relatively dense accommodation. The three storey buildings fronting Dandenong Road have a significant influence on the subject site and are part of the neighbourhood character. Whilst the properties to the south, particularly in Penleigh Grove are single and two storey is not appropriate to selectively choose only some of the elements that make up the character of the neighbourhood when defining neighbourhood character.

It is acknowledged that the setback from the rear property boundary does not meet Standard B17 of Rescode. However as Mr Negri advised, any assessment of adequacy of building setbacks and should include reference to specific Decision Guidelines attached to Standard B17. These require or an assessment to be made of whether the wall abuts a side or rear lane. In this case part of the wall to apartments 8 and 15 are built to the rear boundary and other walls are set back about one metre (955mm).
The test for acceptability in this instance is not that there are insufficient setbacks but determining what is the impact of the building with small or no setbacks. In assessing the impact of the building I took particular note of the extent of car parking /garages /outbuildings at the rear of the properties in Shirley Grove which are potentially the most affected. With the exception of possibly No 3 Shirley Grove there is little in the way of an immediate sensitive interface because most of the eastern section of these properties is predominantly used for car parking. There are no sensitive private open space areas.
Whilst Mr Spillane argued that the rear concrete apron at 3 Shirley Grove was used as an open space area, it appears to serve both as a defacto car park and\or private open space area.
In assessing the reasonableness of the building I consider the 4.7 metre separation distance between property boundaries is a relatively large distance and in this instance it is appropriate in the context of the separation distance and the appearance of the fencing and buildings facing the lane. In essence, all properties turn their backs on this lane and it virtually serves as vehicular access to properties in either Shirley Grove, Lansdowne Road or Penleigh Grove. It is not a high amenity area and therefore the design solution in this case in entirely warranted.
Mr Cincotta sought that the upper level of the western building (Dwellings 14 - 17 inclusive) be set back 3 metres from the rear property boundary. I gave this close consideration but such greater setback may in fact diminish the architectural integrity of the design, unnecessarily constrain the internal amenity of those dwellings for what could be largely seen as a minor or a modest gain. This requirement might have been more imperative if the building was located closer to the rear of the Shirley Grove properties and the rear yards immediately abutting the laneway were used as the primary open space areas for those dwellings. However my observation of those areas is that they are predominantly car parks or defacto car parking areas and people either turn their backs on them or in the case of 5 Shirley Grove used it as an open concrete car parking area with little amenity.
I have however required that each of the southern bedrooms to the upper level dwellings be recessed a further 200mm in order to provide a greater level of articulation whilst respecting the architectural integrity and rhythm of the design. This added treatment would assist to help to break up the bulk of that upper level without substantially impacting on the internal amenity of these bedrooms.

Is car parking and access for the proposed development?

I was told most objectors were concerned about vehicular access to the rear 4.7 metre laneway, however these concerns have been addressed by relocation of the driveway to Lansdowne Road.
Lansdowne Road is a much wider road that already experiences in excess of 1600 vehicles per day, and it has direct access to Dandenong Road. I acknowledge the Council was ambivalent about access and in fact had no reason to oppose access to the laneway, however this seems to be a more responsive design having regard to objectors' concerns. Whilst parts of the laneway is 4.7 metres wide, the southern section of it is only 3 metres wide and that southern section is not in as good condition as the subject site.
The evidence of Mr Hunt was that the 3.5 metre wide access to Lansdowne Road was appropriate provided there is a sign inside the drive directing priority to vehicles entering the basement carpark.
I consider there is sufficient car parking for the proposed development. Mr Spillane conceded the quantum numbers although there was dispute about whether there was adequate visitor parking for the development and whether a single space was adequate for dwellings 1 & 2. Under Standard B16 of Rescode, there is a requirement for six visitor vehicles and at least one car space per dwelling. Five visitor car parking spaces are provided.
With the exception of townhouse 1 and 2, all townhouses will have two vehicles each and the apartments will have one vehicle each. Mr Hunt advised that based on surveys of other inner urban residential developments the number of visitor car spaces is about 0.12 spaces per dwelling. This equates to about 3.5 spaces. I consider five spaces will adequately cater for most situations for visitors and I consider there is some opportunity to park in Lansdowne Road. Visitors can either make prior arrangements with occupants of a dwelling to park in the basement, such as by telephone or make arrangement when they arrive. I do not consider it is necessary to reconfigure any car park and whilst townhouses 1 and 2 may only have one car parking space that is in accordance with the minimum requirement in the Planning Scheme.

I am generally satisfied that the bicycle parking can be provided for all the townhouses but is consider there should be additional space shown for the 17 apartments. Standard B16 says there should be bicycle parking. This is addressed by condition on permit.

The principal issue of concern to me was the impact of the eastern building on the habitable room of the recently constructed dwelling at 6A Penleigh Court. Mr Negri in evidence conceded that the wall of this building should be increased to 2.8 metres so as to meet Standard B20 (north facing windows objective). He also conceded if these walls were set back that distance or lowered in accordance with that standard, it would also assist to reduce some shadowing particularly to the northern yard of 8 Penleigh Court (in the am period). Accordingly, I consider it is appropriate that a condition reflect this requirement. When I viewed 6A and 8 Penleigh Court I examined the north facing habitable room window would be affected if the setback was not complied with, and I consider it would be inappropriate to reduce the setback of that southern wall because it may compromise daylighting to that room.
In terms of shadowing I am satisfied the proposed development meets the objective in Standard B21. Whilst there is a modest increase in am shadowing it is well within the confines of the standard. Also I remarked in the hearing the single storey building to the apartment building is not the cause of overshadowing to either 6A or 8 Penleigh Court rather it is other buildings and more particularly the wall of townhouse 12. That wall will either be lowered or townhouses 10, 11 and 12 reduced in area marginally so that the wall is set back 2.8 metres so as to comply with the another standard (B20).The net effect is a marginal reduction in overshadowing in the am period.

I consider the applicant has provided a very good response to overlooking having regard to the site context of abutting buildings most of which are two storeys in height. However, I am somewhat concerned about the extent of screening shown on the first and second floor levels of the apartment building which face west and I questioned whether it was necessary to have 1.7 metre screens or high translucent glazing along the entire west facing windows. Many of these windows overlook either single storey garages, carports or an open concrete car parking area and there is a separation of at least 5.7 metres between these windows and the rear of properties in Shirley Grove. However, the distance to sensitive areas is in excess of 9 metres and therefore it is unnecessary to require screening when reading the objectives or standards in Standard B22 of Rescode. Accordingly, I have provided the option for the applicant to remove some of those screens in order to ensure a high standard of internal amenity to west facing windows. The only exception is apartments 8 and 14 which is located on or close to the western boundary and in relatively close proximity to the concrete apron that is used as a carpark and/or open space to the rear of 3 Shirley Grove.

There was substantial debate at the hearing about whether a large Oak tree should be preserved on site. The evidence of Mr Galbraith was that whilst it was a healthy attractive tree, it will outgrow its position and would impact on a shed to the immediate north of it. The tree has already been damaged in the proximity to this shed.
I have examined the tree in close detail and have come to the conclusion that Mr Galbraith's evidence is correct. I appreciate that it is a very attractive mature tree, but its location immediately abutting an existing wall renders long term protection of it as tenuous. There is a strong likelihood that it will need to be lopped substantially so as to provide long term protection. Alternatively, I suspect that due to the severe damage to its northern limb that this limb may fall and either drop on properties to the north of it or require such substantial lopping as to disfigure the tree.
In addition, the critical root zone of this tree is in the order of 8 metres, that is, virtually half the width of the site at that part of the property and this would then mean that a substantial portion of the development, notably townhouses 4, 5 and 6 would need to be removed in order to retain this tree. I do not consider this can be justified in this particular instance. This Oak tree is more appropriately located in a large park or reserve and is not suited to a small courtyard. It is far more beneficial to this site and neighbourhood if the applicant concentrates its effort on protecting and retaining the existing Lillypilly tree.

Much of the hearing discussion took place about the suggested conditions tabled by the responsible authority. By and large the conditions are acceptable with the exception of a requirement for a reduced setback to Lansdowne Road and the rear set back from the lane. I have already addressed this issue, the need for further solar control to west and north facing elevations and the requirement for a 3 metre setback for the second floor west facing walls.
Mr Canavan also opposed the requirement for urban art in a development. In this regard he claimed it was unfair and the Tribunal had previously ruled on this matter. I agree. I questioned Ms Cincotta about the justification for this and whether this requirement referred to any planning policy requirement in the scheme. Ms Cincotta advised that it had been identified as a matter the Council wished to pursue in Clause 21 and the Council had prepared a policy but it did not form part of the planning scheme.
I consider this issue should not be included as a planning permit condition for the following reasons outlined in my earlier decision[2]:
1. There was no information provided to me that the applicant was aware of this requirement at the time of lodgement of the planning permit application. There was no information in the Officer's report or submissions before the Tribunal which suggested that this should be imposed. I have difficulty accepting it as a condition on the basis that:
  - The nominating of common artworks to a certain value (in this case 0.5 percent of the development cost) comes within a condition requiring amending plans
  - There is no nexus for the artworks in clause 32.04-2 and clause 43.01 of the Port Phillip Planning Scheme
  - The lack of any reference in the Local Planning Policy in the Port Phillip Planning Scheme
2. I acknowledge that the Council has a commendable Urban Art Strategy aimed at contributing to the civic pride, cultural identity and the community sense of place and well being, but it is not clear to me that this is a requirement which has been properly articulated in the planning scheme provisions. There is no evidence of public discussion or debate in a planning forum to justify it.
It is noted that Mr Spillane also questioned the need for urban art in a suburban street like Lansdowne Road. Whilst I can appreciate the benefits of urban art, I consider that there really needs to be much greater thought given to the implementation of this policy across the entire municipality including undergoing public consultation process before its implementation.

In evidence, Mr Patrick provided conditional support for the landscape design subject to some modification to the plant species, but also and more importantly on the basis that there was proper water storage for future irrigation for above ground landscaping areas. Ms Cincotta went one step further requiring a report on ESD requirements for an entire building. I consider this is a substantial departure from the thrust of Mr Patrick's evidence and whilst I am satisfied to include conditions to address solar protection devices for north and west facing windows and the greater storage of rainwater for use in irrigation, most other ESD requirements are addressed under the building permit.
I have addressed some of Mrs Pilski's concerns about trees along the southern side of the wall to Dwelling12 and made reference in the condition to the submitted landscape plan and Mr Patrick's evidence. A final approved plan will need to address these matters.

For the abovementioned reasons the responsible authority's decision is set aside. The amending plans have produced a good response to State and Local planning policies and the neighbourhood character. Sensitive interfaces are dealt with by conditions requiring greater setbacks and better articulation of the western boundary.

Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the plans dated 26 October 2008 (Version F) but modified to show the following:
- (a) With the exception of Dwellings 8 &14 all west facing screens at first and second floor level may be deleted or reduced in height to improve internal amenity to the rooms. Clarification that all remaining1.7m high screening to limit overlooking is in accordance with standard B22 of Clause 55 (Rescode) of the Port Phillip Planning Scheme..
- (b) All car spaces at a minimum of 2.6m wide.
- (c) Solar controls to the north and west elevations.
- (d) The western setback of each of the southerly bedrooms (Dwellings 14, 15, 16 and 17) on the second floor be increased by 200mm respectfully in addition to those shown (ie 2380mm, 2340mm, 2280mm and 2220mm) to maintain architecturally integrity and rhythm of the upper western elevation but to emphasise the articulation of the west elevation.
- (e) Bicycle storage is to be provided in the basement for the 17 apartments to the satisfaction of the Responsible Authority.
- (f) The setback of the ground and first floors of Dwelling 9 from the eastern boundary is to be increased to meet ResCode Standard B17.
- (g) The setback of the south western corner of the Dwelling 12 from the southern boundary increased to 2.8m.
- (h) Mail boxes in accordance with ResCode Standard B34.
- (i) The elevation and floor plans be consistent.
- (j) Details of all boundary fencing. If a front fence is depicted it must not exceed 1.5 metres in height.
- (k) A sign to be erected at the basement level of the car park ramp directing exiting vehicles to give way to incoming vehicles.
- (l) The edge of the splay of the crossover to be located no closer than 2.3m south from the trunk of the existing street tree.
- (m) At least 5 visitor car spaces allocated to the satisfaction of the Responsible Authority.
- (n) Water catchment devices to assist with on site irrigation of landscaping areas.
The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
All external materials finishes and paint colours are to be to the satisfaction of the Responsible Authority and must not be altered without the written consent of the Responsible Authority. The colours and materials must be in accordance with the simpler palette referred to in condition 1(e) above.
No equipment, services and architectural features other than those shown on the endorsed plans must be permitted above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority.
Any plant and equipment proposed on the roof of the building must be screened in a manner to complement the appearance of the building to the satisfaction of the Responsible Authority and all plant and equipment, including air conditioning units, must be acoustically screened and baffled so as to minimise noise impacts on abutting and nearby residential properties.
Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.
Prior to the commencement of the development hereby permitted the applicant must show ESD measures, particularly relating to the storage of rainwater for use in garden irrigation and solar controls on the west and north elevations to the satisfaction of the Responsible Authority.
The car parking areas and accessways as shown on the endorsed plans must be formed to such levels so that all cars spaces can be used in accordance with the plan, and shall be properly constructed, surfaced, drained and line-marked. The car park and driveways shall be maintained to the satisfaction of the Responsible Authority.
Before commencement of the works, a construction management plan must be prepared, including a works program, with the objective of minimising the impact of construction works on the nearby residential properties to the satisfaction of the responsible authority. The plan must specify the means of reducing the construction impact (at the cost of the applicant) of dust and noise on the nearby properties, and must provide that hours of work be in accordance with any relevant Local Law.
During the construction of the buildings and works allowed by this permit, the roads and streets and lanes adjacent to the subject land must be kept free of parked or standing vehicles or any other obstruction, including building materials, equipment etc. so as to maintain free vehicular passage to abutting benefiting properties at all times, unless with the written consent of the Responsible Authority.
Prior to the completion of the development, a Waste Management Plan must be prepared by a Waste Management Engineer or Waste Management Planner to the satisfaction of the Responsible Authority and endorsed as part of this permit. The Plan must include reference to the following:
- The estimated garbage and recycling generation volumes for the whole development.
- The garbage and recycling equipment to be used and the collection service requirements, including the frequency of collection.
- The location of, proximity, screening of and space allocated both to the garbage and recycling storage areas and collection points.
- The path of access for both users and collection vehicles.
- How noise, odour and litter will be managed and minimised.
- Approved facilities for washing bins and storage areas.
- Who is responsible for each stage of the waste management process.
- How tenants and residents will be regularly informed of the waste management arrangements.

Once approved, the Waste Management Plan will be endorsed as part of this permit.

Prior to the commencement of development hereby permitted, a landscape plan and schedule based on the Landscape concept by Hassell and evidence to the Tribunal by John Patrick must be submitted to and approved by the Responsible Authority. It must nominate the maximum height of vegetation (at maturity) in the landscape area to the south of Dwelling 12 as 4metres.When approved the plan will be endorsed and will then form part of the permit. Landscaping in accordance with such approved plan and schedule must be completed before the occupation of the building hereby permitted and maintained to the satisfaction of the Responsible Authority.
The development of the site must be provided with stormwater treatment works that incorporate the use of water sensitive urban design principles (including re-use) to improve stormwater discharge quality and a detention system for any increase in runoff as a result of the approved development. The system must be installed and maintained to the satisfaction of the Responsible Authority.
Prior to the commencement of the development, a stormwater plan showing the method of treatment and discharge to the nominated point must be prepared to the satisfaction of the Responsible Authority. The plan must be prepared by a qualified person and show all details of the proposed stormwater works.
During construction, the works and measures specified in the arborist report prepared by Galbraith and Associates dated 10 November 2008 must be undertaken and carried out to the satisfaction of the Responsible Authority including:
- (a) tree protection measures for tree 5 (row of James Stirling Pittosporum located at 6-10 Lansdowne Road to the south of the site) and tree 11 (Lemon Scented Gum, Eucalyptus Citriodora located at 322 Dandenong Road to the north of the site) during construction of the development; and
- (b) tree protection measures for the retention of the street (tree 12 - Ouercus Pulustris Pinoak) at the Lansdowne Road frontage of the site.
The Syzigium paniculatum tree identified by the submitted arborist report (Galbraith and Assoc, dated 11 Feb., 2008) must be retained and a tree protection management plan is to be submitted showing a tree protection fence and how the site will be managed during and post construction. The plan must be prepared by a qualified arborist and once approved, the plan will be endorsed as part of this permit.
This permit will expire if one of the following circumstances applies:
- (a) The development is not started within 2 years of the date of this permit.
- (b) The development is not completed within 2 years of the date of commencement.

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

[1] Pursuant to Section 79 of the Planning Scheme

[2] See City Road Apartments v Port Phillip CC [2007] VCAT 689

Ninety Four Feet Pty Ltd v Port Philliip CC [2008] VCAT 2484

At a glance

Court

Decision date

Source

Judgment (28 paragraphs)

Ninety Four Feet Pty Ltd v Port Philliip CC [2008] VCAT 2484 (1 December 2008)

Parties

Legislation Cited (1)