The loading and unloading of vehicles and the delivery of goods to and from the premises (including the collection of waste and recyclables) must only occur between the hours of 7am and 10pm Mondays to Saturdays and between 9am and 10pm on Sundays or public holidays to the satisfaction of the responsible authority.

1. The decision of the responsible authority is varied. The Tribunal directs the responsible authority to amend Permit No. 0447/07 issued by on the 30 April 2008 as follows:
   1. Condition 1(a) must be substituted with the following:

(a) decoration of the side face of Building A with public art to the satisfaction of the Responsible Authority and architectural articulation to the bland concrete east and south faces of Building D to the satisfaction of the Responsible Authority.

1. Condition 1(g) must be substituted with the following:

(g) In the event that council in its capacity as road manager does not provide its consent to projections of the building outside the title boundaries of the subject land, any consequential amendments to the façade projections over the footpath.

Mr Jeremy Gobbo QC, of counsel by direct brief. Mr Gobbo called Mr Tim Biles, Planning Consultant and Mr Andrew Hutson, Architectural Designer as expert witnesses.

1. Oxdra Pty Ltd has been granted a planning permit to develop a substantial parcel of land fronting Commercial Road Prahran between Grattan Street and Porter Street (excluding the PABS Furniture Rental at the very corner of Commercial Road with Porter Street).
2. The site enjoys a 52.34 metre frontage to Commercial Road Prahran, at the western gateway entry to the Chapel Street principal activity centre. It extends for 30.48 metres down Grattan Street and for 44.1 metres abutting the PABS building on Porter Street next to the railway cutting. It excludes the PABS corner of Commercial Road with Porter Street.
3. Oxdra reviewed permit conditions but has achieved agreement with council or withdrawn its review against some conditions as indicated by the consent order.
4. Two remaining issues concern conditions requiring removal of two floors in one of the four proposed buildings and removal of balcony and wing wall projections of between 0.5 metres and 1.0 metres beyond the Commercial Road title boundary.
5. Oxdra's permit will see a striking development comprising four separate buildings of varying heights all inter-connected by suspended pedestrian ramps at varying levels. Shops will front Commercial Road and Grattan Street at ground level and lower ground level, there will be two levels of basement parking beneath that and offices will locate at podium and upper podium level, next to and beneath the balance of the levels occupied by dwellings. A pool, pool terrace, gymnasium and landscape podium to serve the residents will locate at the podium level.
6. Two buildings, Buildings A and B front Commercial Road. Building A is five storeys, Building B is four storeys. Building C wraps around the Grattan Street corner behind Building B at seven storeys and Building D is located behind Building A, next to and behind Building C and abutting PABS at the Porter Street side of the subject land. Building D comes in at 9 storeys and it is this building that Condition 1(a) targets with the following requirement:

The removal of floor level 2 from Building D (apartments 201-204 inclusive) and floor level 3 from Building D (apartments 203-204 inclusive) so as to reduce the overall height of Building D by two levels.

1. It is Buildings A and B, fronting Commercial Road, which boast the projecting balconies and wing walls.
2. In respect of four storey Building B, the 500mm balcony projection occurs at first floor level above the retail shops below and the 1 metre wing wall and balcony projection occurs at the third and fourth levels. In respect of five storey Building A, the half metre balcony projection occurs at levels 2 and 3 above the retail shops below and the 1 metre wing wall and balcony projection occurs at levels 4 and 5 above that. Whereas the half metre projection will be covered by fixed or operable aluminium louvre blinds, the façade to the 1 metre projections will comprise a stainless steel netting balustrade, stainless steel frame and handrail. It will look like a very fine mesh extending for 2 levels over a double storey apartment. Besides being an architectural feature and part of the buildings articulation, its function is to ensure nothing is dropped onto the street level below from the respective apartments that it serves.
3. Another function of the mesh stainless steel is also to make provision for vertical landscaping to creep up the face of the building, providing greenery and relief to the concrete structure.
4. The four buildings have been separated so as to allow northern sunlight penetration into as many apartments as possible via a central atrium and courtyard, to provide offset balconies for privacy and to add visual interest between residents, visitors and shoppers.

1. The parties consented to withdrawal of Conditions 1(s), 3 & 9 and consented to a rewording of Condition 17 as expressed in the consent order.

1. In Asian Pacific Building Corporation Pty Ltd v Stonnington CC[1] the Tribunal permitted the seven storeys "Smart Hotel" next to the subject site on the opposite side of Grattan Street fronting Commercial Road. The hotel gets its name from artist Jeffrey Smart with his portrayals of urban life and infrastructure.
2. Views to the eastern façade of buildings A and D are obtained travelling east along Commercial Road towards Chapel Street with the seven storeys Pran Central holding the corner of Chapel Street with Commercial Road. Views are had of Buildings C and D from Grattan Gardens to the south looking north towards Commercial Road.
3. Diagonally opposite the site on Commercial Road is Prahran Market. Although land further west along Commercial Road past Porter Street and the railway cutting is also zoned Business 1, different height considerations apply.
4. The site is located within the confines of the Chapel Vision Structure Plan[2]. The seven storey Smart Hotel is built to its title boundary along Commercial Road with no setback. It is the Smart Hotel's sideage to Grattan Street which is setback 6 metres, while 3 metre deep balconies intrude into that setback.
5. The Oxdra proposal, by contrast, with four and five storey buildings fronting Commercial Road, sets its seven and nine storey buildings back from Commercial Road. Building D at nine storeys sits 37 metres back from Commercial Road giving the appearance of a mid-block element according to Andrew Hutson, called to give evidence.

1. The land is zoned Business 1 with no overlay controls. Although the gazetted clause 22.02-3 of the Stonnington Planning Scheme locates the subject land within Precinct E where an 8 metre building height is envisaged, both council and the developer agree that this policy has been overtaken by the new 2007 Chapel Vision Structure Plan which envisages completely different height parameters.
2. In the Asian Pacific[3] case the Tribunal acknowledged that it was common ground that the existing planning policy at clause 22.02 referencing 8 metres is no longer relevant and that, despite it not yet being adopted by Council, the guiding policy document is Chapel Vision[4].
3. Since that decision has issued, the structure plan has been adopted by Council on 17 December 2007 and is now the most critical policy affecting this site.
4. Within the Chapel Vision Structure Plan, the subject land sits within the Prahran (Central) Precinct and also within an area of "substantial change". This envisages substantial changes from the form and character of existing development. Going into further detail, the preferred maximum building heights for the subject land is denoted on page 32 of 96 of the Structure Plan as:

1. Council's urban design objectives of clause 21.02 include:

Maintain a high standard of physical and visual amenity in the public realm in relation to streetscape improvements, and the design and location of fixtures.

Encourage high quality and energy efficient design that contributes positively to the character of the City as a whole and enhances its landscapes, public spaces, buildings, shopping centres, main thoroughfares, streetscapes and gateway localities.

1. Two principal issues concerned the deletion of two floors of the nine storey building to the rear of the site and reduction in the projection of balconies and wing walls beyond the title boundaries to Commercial Road.
2. Is the height of one of the group of four buildings at nine storeys rather than the seven storeys sought by council's condition detrimental to council's overall structure planning efforts or detrimental to the area and to immediate neighbours by virtue of building bulk or overshadowing?
3. Are the projecting balconies a selfish 'public lands grab' to obtain larger internal living spaces?
4. The parties and the witnesses in the appeal made both written and verbal submissions, a number of plans, photographs, photo montages and other documents were tendered to the Tribunal and remain on the Tribunal's file. I conducted an extensive inspection of the site and its locality.

1. This development is described as 'an exemplar building' by councils own planning officer, mainly because of the characteristics I have set out above, including sunlight penetration between buildings, offset balconies, suspended pedestrian links, ground level pedestrian links past retail tenancies between Commercial and Grattan Streets and vertical proprietary gardens.
2. It is important to note that only the height of one of the buildings is in dispute. The three other buildings are lower than the "six to eight levels" expressed in the Chapel Vision Structure Plan as the preferred maximum building height. Furthermore, the two taller buildings are setback behind the lower four and five storey buildings, in contrast to the Smart Hotel which is seven storeys to zero lot line fronting Commercial Road.
3. There is also terracing in height between the four respective buildings both in a north-south direction and in an east-west direction.
4. Interestingly, it was calculated at the hearing that, to the top of the roof of the penthouse apartments in Building D, the overall building height is 29.2 metres and if you add 2 metres for the balustrade the worst case scenario is that the building height comes in at a tad over 31 metres. This is because there is a slope in the land from an RL of 15.5 at the Porter Street edge down to 14.2 at the Grattan Street edge.
5. Technically therefore the average height across Building D comes inside the "23-31 metres" expressed in Council's own structure plan. The difference between "23-31 metres" and "6-8 levels with setbacks" is that commercial floors come in at a different height than residential floors. Since this zone caters equally for offices as well as residential above shops, council's own policy provides a range, since it is not known whether development will be for offices or dwellings.
6. Mr Gobbo QC repeated the frustration coming through sentiments I expressed in Treloar v Bayside CC[5], dealing with a long process of adopting council policy on areas of substantial change:

It is a waste of human energy and skill for time to be expended on drafting, testing and adopting specific policies for a particular centre over at least a three year period and for that effort to then be ignored a few months later. How much ink, how many reams of paper and how much human effort must continue to be wasted if such exercises are rendered futile?

1. Perhaps council was not alerted to compliance with parameters expressed in its own Chapel Vision Structure Plan, as this exercise only occurred at the hearing.

1. Evidence presented to the Tribunal by Oxdra's planning witness and architectural witness proved that the deletion of two floors from Building D will not make a difference to the shadowing created in any event over a southern three storey neighbour at 29 Grattan Street, because the latter is not overshadowed by Building D until very late in the afternoon. As far as Building D's immediate neighbour to the south along Porter Street is concerned, the deletion of two levels will not make any difference to the shadows created by a seven storey, rather than a nine storey building.
2. Shadow diagrams prove that whether the building D is seven or nine storeys will not make one iota of difference to its immediate neighbours (except after 3pm). Also, neither neighbour contested the developers review against the deletion of two storeys from Building D.
3. Mr Biles, planning witness for Oxdra, expressed his concern that, when viewed from the south and Grattan Gardens, reduction of Building D by two storeys will result in a wider but less articulated expanse of built form than the present proposal. At present, the difference in height between Buildings C and D create a visual interest and differentiation, while the two seven storey Building C and the Smart Hotel hugging the corner of Grattan Street with Commercial Road provide a bookend balance down the Grattan Street spine, looking north.
4. Mr Biles expresses his concern in this manner:

In fact to do so weakens the contrasting juxtaposition of the three building envelopes making the "gateway building"[6] appear as part of the "Grattan Gardens Building" (Building C). This is a design consequence to be avoided[7].

1. Mr Andrew Hutson, Associate Dean of the Faculty of Architecture, Building and Planning at the University of Melbourne gave evidence of the buildings height and appearance in the view cone travelling east along Commercial Road towards its Chapel Street intersection.
2. Mr Hutson opined the proposed development demonstrates a well considered response to both the context and urban potential for the subject site and its vicinity. It will offer a gateway form for the precinct with the 'Pran Central' building a bookend for the streetscape. The architecture and planning would create excellent potential for retail opportunities and apartment living. The proposal would be a positive insertion into the context.
3. However, Mr Hutson recommended that the western face of Building A be reviewed with regard to locating an architectural feature or art work that enhances the 'gateway' potential of the form as would be viewed from approaches along Commercial Road. He opined that the western façade of Building A should project artwork for the benefit of the public realm, in addition to the proposed vertical garden. This as much because the proprietary garden faces west, so needs to be extremely robust. Mr Hutson does not so opine for Building D as he considers it is in mid-block location and not in the view cone of pedestrians or travellers east along Commercial Road.
4. I have conducted a site inspection and given Mr Hutson's opinion much thought. Although I have decided to delete the condition requiring the removal of two levels, I accept Mr Hutson's advice to require the owner to decorate the side face of Building A with public art to the satisfaction of the Responsible Authority.
5. I have also decided to apply Mr Huston's philosophy to the mid-block Building D. It boasts a strong tall bland concrete wall which can be improved by articulation.

1. Are the projecting balconies a selfish public land grab to obtain larger internal living spaces?
2. The projecting balconies are occasionally the full width of the apartment and at other times only small boxes punching in and out of the gap between the end of the living rooms or bedrooms and the stainless steel mesh. In Mr Biles' words, this façade composition and detail is used to create visual interest. Balconies appear to be suspended in space. Landscape treatment applied as "vertical walls" clothes the building so that again it creates interest and visual complexity. These small projections of balconies reinforce engagement with the public realm. It enhances the perception of passive surveillance and increases the sense of vibrancy within the street.
3. Seen in this light, the half to one metre projections are understood as contributing to the public realm, not detracting from it. Mr Wong for Council took me to a number of Tribunal decisions for and against these projections: Gardner Group Pty Ltd v City of Port Phillip[8] and Webb Management v City of Port Phillip[9] v Stafford v Stonnington CC and ors[10]; Enterprise Pharmacy v Colac Otway SC [11] and Kaczmarski v Stonnington CC[12]. To those decisions must be added Kalpanis v Stonnington CC [13] and S Y Ellis Pty Ltd v Stonnington CC[14].
4. The 'for and against' cases can generally be divided into commercial and residential proposals. Projections are generally accepted well above street level in residential proposals while denied in commercial proposals given risks to pedestrians or risks from traffic associated therewith. In S Y Ellis Pty Ltd[15] Member Reid held:

Leaving aside any legal issues (none were raised at the hearing), I do not see any urban design grounds for objecting. Perhaps Council and Ms Hansen feel that this device has been used to unfairly enhance the building while optimising its interior spaces. However, I do not consider that view to provide a basis for my decision. Rather, I have to consider whether the outcome would be reasonable in terms of the overall design and any imposition on the public realm.

In terms of the proposed building's scale, the intrusions are relatively minor, would provide greater depth to the building's elevation and would not cause any detriment to the appearance, or usability, of the public realm.

1. Given the inter-play in the façade that I described earlier, Mr Reid's comments apply equally here. I do not think these balcony and wing wall projections have been designed as a public land grab, but to reinforce engagement with the public realm.
2. I accept council solicitor's advice that council as public road manager needs to assess road risks from overhanging elements, which are a different issue in a different jurisdiction to town planning. The condition has been redrafted to take this into account.
3. I also accept Mr Gobbo QC's advice that the developer needs to enter into a licensing arrangement with the owner of the footpath to secure a registrable title for prospective owners of the apartments. In the event that council as manager or any other owner I whom the footpath is vested, refuses permission, I have altered condition 1(g) to read:

In the event that Council in its capacity as road manager, does not provide its consent to projections of the building outside the title boundaries of the subject land, any consequential amendments to the façade projections over the footpath.

1. This development has been accurately described in council planning officer's report as an exemplar building. The substituted conditions will emphasise this.

[1] [2007] VCAT 1076 19 June 2007

[3] [2007] VCAT 1076 19 June 2007

[5] [2001] VCAT 250 (28 February 2001)

[7] Biles witness statement July 2008 at page 15.

[8] [2001] VCAT 608

[9] [2002] VCAT 1568

[10] [2001] VCAT 500

[11] [2005] VCAT 933

[12] [2002] VCAT 2270

[13] [2007] VCAT 30

[14] [2006] VCAT 1031