1-9 Balcombe Road and part 33-35-35 Childers Street, Mentone (Lot 2 and Road R1 on PS 028237)

Pace Development Group Pty Ltd v Kingston CC & Ors [2013] VCAT 193

1. The decision of the responsible authority in relation to permit application no. KP-342/2012 is set aside.
2. A permit is granted in relation to land at part 1-9 Balcombe Road and part 33-35-35 Childers Street, Mentone. The permit will allow:
   • use of the land for shops, development of a mixed use building comprising dwellings and shops and a variation of the loading bay requirements

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

Mr Philip Bisset, Solicitor, Minter Ellison Lawyers

• Mr Stuart McGurn, town planning consultant, ERM Australia
• Mr Mark Sheppard, urban designer, David Lock Associates
• Mr Matthew McFall, landscape designer, MEMLA landscape design.

Evidence provided by Mr Henry Turnbull, traffic engineer, The Traffix Group and Mr Johnny Wilkinson, Architect, Scharp Design, were accepted without their appearance.

Mr Michael Tate. Ms Fionnuala Tate represented eight residents who lodged a group statement of grounds. Ms Ursula Soulsby represented James Soulsby and Anthony Soulsby.

To develop a five storey building that would accommodate three shops at ground level and 55 dwellings at ground level and above.

The building would be five storeys to Nepean Highway, reducing to four levels to Childers Street and two levels to the site's northwest corner. It would have a maximum height of 16.1 metres.

The dwellings would comprise 14 one-bedroom apartments and 42 apartments each with two bedrooms.

Parking for 78 cars and 24 bicycles would be provided in two basements. The car parking spaces would be allocated as follows; 61 spaces to residents, three spaces to the staff of the tshops and 14 spaces to visitors.

Access would be to Childers Street via a ramp shared with the adjoining apartment building.

Application under section 77 of the Planning and Environment Act 1987

Abuts Road Zone Category 1 (Nepean Highway, Balcombe Road, Warrigal Road)

Clause 32.04-4 (construct two or more dwellings on a lot in MUZ)

Clause 32.04-7 (buildings and works for a shop in MUZ)

Clauses 10.04, 11.01, 13, 15.01, 15.02, 16.01, 17.01, 18.02, 21.03, 21.04, 21.05, 21.06, 22.11, 52.06, 52.07, 52.29, 52.34, 52.35 and 65

The review site is located on the northwest corner of Warrigal Road and Childers Street, Mentone. The site is irregular in shape, with a frontage of 37.7 metres to Warrigal Road and a frontage of 40 metres to Childers Street. It also has a short boundary to a service road connecting to Balcombe Road and the north boundary is a right-of-way. It has an area of 2,260 square metres.

The site is occupied by the Mentone Tenpin Bowl. The land is generally flat and is not constrained by any special features or encumbrances. Access to the site is presently from a slip road connecting Warrigal Road to Balcombe Road.

Abutting and nearby land to the northwest on Balcombe Road is used for commercial purposes accommodated in single and double storey commercial buildings. Planning Permit KP302/2010 has been granted for a four storey apartment building at No.15 Balcombe Road.

Land to the southwest fronting Childers Street is developed for a four storey apartment building. Further to the west in Childers Street are single storey dwellings, a church and two primary schools and associated recreation facilities.

Land on the east side of Warrigal Road is developed for a motel and single storey dwellings.

I inspected the site and its environs on 15 February 2013. The parties did not accompany the inspection.

Pace Development Group v Kingston City Council [2012] VCAT 38

1. In October 2012, Kingston City Council determined to refuse to grant a planning permit for a five storey apartment building containing dwellings and three shops. Council considers the building's height, scale and built form to be excessive and contrary to planning policy. The responsible authority also considers that the development fails to provide appropriate interfaces to public spaces, poor onsite amenity for residents and imposes unacceptable offsite amenity impacts.
2. A number of objectors to the proposal support the Council's decision They consider the development would also generate adverse traffic and parking outcomes, particularly in Childers Street. VicRoads is a referral authority and has no objection to the proposal.
3. The permit applicant contests all the grounds of refusal and considers that the development complies with planning policy, complies with a previous Tribunal decision, and would make a positive contribution to the appearance of a prominent road junction.
4. Mediation was attended by the parties in January 2013. The parties agreed at the mediation that vehicular traffic generated by the proposed development can be adequately served by the existing road configuration. Hence a dedicated right turn lane from Warrigal Road to Childers Street or a splitter island in Childers Street are unnecessary. It was also agreed at the mediation that signage at the intersection of Warrigal Road and Childers Street prohibiting east to west movement during school hours would be moved to the west of the entry to No.33-35-35 Childers Street, enabling two way traffic to the review site. Traffic from the development would be required to turn left at all times and would hence leave the neighbourhood via Warrigal Road[2].
5. The responsible authority and the permit applicant agreed at the Hearing that Council's concerns with traffic movements within the basement would be satisfactorily addressed by the measures recommended by Mr Turnbull in his expert traffic evidence and those recommended in the Road Safety Audit by Traffic Works Pty Ltd (Project 123540 dated 8 December 2012).
6. Consequently, internal and external traffic management arrangements are not in dispute in this review. As external traffic movements generated by the development have been agreed at mediation, I directed Ms Tate to not address these matters in her submission as it could unfairly prejudice the permit applicant's case. They were expecting these matters to not be prosecuted in the Hearing.
7. The key issues that I must determine in this matter are:
   • Would the development appropriately balance housing diversity and neighbourhood character objectives?
   • Would the development impose adverse amenity impacts on neighbours?
   • Would the development provide acceptable amenity for its future residents?
8. I must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Kingston Planning Scheme, I have decided to set aside the decision of the responsible authority and grant a permit. My reasons follow.

Would the development appropriately balance housing diversity and neighbourhood character objectives?

1. I repeat the Tribunal's assessment of the site's context from the previous review. There have been no significant changes in the site's physical context that alter that assessment, although I note in parentheses some additional comments.

The review site is located on the southwest corner of the intersection of (two) main roads and a local residential street. The site is occupied by a single storey commercial building, being approximately four metres in height.

(The building presents sheer, blank tilt concrete walls to Warrigal Road and Childers Street. Whilst limited setbacks are provided to these streets, these contain no landscaping. The active frontage to the ten pin bowl is to the north, opposite its car park. It also presents a blank wall to the adjoining apartment building at No.33-35 Childers Street.)

(The land to the north of the commercial building on the review site is used for a car park. Following the redevelopment of the review site, that land would become a strategic redevelopment site.)

The intersection is significant in the southeast road network. At this intersection the Nepean Highway transitions from a wide "gun barrel" straight road to one that narrows and curves on its way to Frankston. Warrigal Road is a major metropolitan arterial road that transitions at this intersection from an arterial road, north of Nepean Highway to a lesser role south of the Highway. Balcombe Road is a higher order east-west road at this intersection. This intersection is an important "pinchpoint" through which regional and local traffic travels.

A robust three storey motel is located on the southeast side of Warrigal Road opposite the review site. South of the motel, the east side of Warrigal Road has a domestic suburban built form. We think except for the motel site, this area would see limited change.

Land adjoining Balcombe Road to the west of the review site is occupied by a mix of single and double storey commercial buildings. As noted No.15 Balcombe Road has a planning permit for a four storey residential apartment building. (This permit has not been enacted.) We think that in time this area will experience significant change to a taller, more intensive built form comprising two to four storey buildings.

Childers Street abuts the south boundary of the review site. The north side of Childers Street has an approximately four metre high sheer wall of the bowling alley. Further west are located single storey dwellings typical of many local residential streets in "middle Melbourne". The south side of Childers Street is occupied by a tennis club, a Catholic primary school and church. West of Rogers Street is the Mentone Primary School. No.33-35-35 Childers Street abutting the west side of the review site (has been) developed for a four storey apartment building. (Vehicle access to that building is from Childers Street. That access is to be used to gain access to this proposal.)

We think that notwithstanding the construction of the apartment building, there is likely to be limited change in Childers Street and it will retain a largely domestic residential built form complemented by the schools and church. We note that Childers Street carries a high traffic volume in the before and after school periods and this traffic is a constraint on more intensive development in this street. (Outside the school period traffic levels are considerably reduced.)

Mentone train station, cafes, shops and supermarkets are approximately 500 metres to the west of the site. This is a relatively convenient 5-7 minute walk along a generous footpath on a flat grade

1. I confirm the findings of the previous Tribunal that the site's physical context provides the following considerations:
   • The site is largely physically unconstrained, except for the Special Building Overlay that requires elevated floor levels.
   • It has three road abuttals including the right-of-way to the north, reducing the number of sensitive interfaces. Its sensitive interfaces are to its west (four storey apartment building) and to the future redevelopment site to the north.
   • Its interface to schools and the typical lower scale residential built form to the south and west require the development to be somewhat tempered, although the land directly opposite to the south is used for a tennis club and school and is less sensitive than to the west.
   • Predominantly single dwellings are located on the east side of Warrigal Road. The closest dwelling opposite (on the corner of Potts Street and Warrigal Road) is orientated north, and has a 2 metre solid fence facing the review site. The motel opposite is not a highly sensitive interface as occupants stay for only short periods.
   • Views of the proposed development from the west and northwest would be screened by the adjoining existing and future four storey apartment buildings.
   • It is located at a busy intersection that is prominent in the regional road network. That intersection forms part of a highly utilitarian streetscape with little to demarcate it. The wide roads can readily absorb a built form comprising relatively robust height, scale and massing.
   • The site is out of the primary views from the key roads and it is not a prominent gateway site.
   • It is convenient and proximate to a train station, regional bus routes and a major activity centre.

1. The previous Tribunal decision reviewed in some detail the planning policy framework. There has been only one change to the planning policy framework since the last review, that being the preparation and exhibition of Amendment C128 that introduces Schedule 22 to the Design and Development Overlay. I repeat below the Tribunal's key findings from that review and then comment on the weight to be given to Amendment C128.
2. The State and local planning policy frameworks support the development of the review site for multiple dwellings. Such development would provide housing choices for households seeking smaller dwellings, as Kingston's housing stock largely comprises larger family homes on generous suburban lots.
3. Building multiple dwellings on the review site would provide 55 households with convenient access to a wide array of established services and infrastructure, and contribute to reducing the number of new dwellings that need to be built in new suburbs on Melbourne's fringes. In so doing, the development contributes to conserving areas of landscape and agricultural value around Melbourne's urban fringes. A development comprising 55 dwellings positively contributes to Melbourne's planning objectives.
4. Not all established urban areas have the same capacity to accommodate change. The preferred locations for more intensive development are within and close to activity centres and the principal public transport network, and strategic redevelopment sites capable of accommodating ten and more dwellings. The site is outside of, but proximate to the Mentone Major Activity Centre and train station. Its convenient location to a major activity centre and abuttal to a main road and commercial areas lends weight towards a more intensive development.
5. The local planning policy framework identifies areas capable of accommodating more intensive built form and areas where change should be quite tempered. The review site is located within an area identified for the 'promotion of increased housing diversity'[3]. These areas are intended to accommodate:

medium density housing comprising a variety of housing types and layouts [that] respond to the established but evolving urban character. Because these are already established as residential areas, the design of new medium density housing proposals will need to display sensitivity to the existing residential context and amenity standards in these areas[4].

1. Local policies encourage new residential dwellings to be built on sites such as this, provided that their scale and intensity is consistent with the prevailing scale of the centre, the quality of design is high and it provides high quality of amenity for existing and future residents.
2. The built form within the Mentone major activity centre is generally limited to four storeys to ensure that development is respectful of the fine grain single and double storey built form, much of which is included within a heritage overlay. The previous Tribunal found that the prevailing built form framework within the activity centre has its own unique context that differs from this site and hence it does not establish a preferred built form context for this site. New development on this site should be relatively intensive so a rare development opportunity is not foregone, however it should respond to this site's particular circumstances.
3. I find that the entirety of planning policy gives strong support to the site's development for a relatively intensive residential building(s), and the most sensitive interface where development should be tempered is to its west.

1. The previous review considered a 12 storey and an 8 storey apartment building on a larger review site that included the land on the north side of the adjoining right-of way (the existing car park for the Tenpin Bowl). Access to that development was to be to Childers Street via the access ramp to No.33-35 Childers Street to the west.
2. The previous Tribunal heard planning evidence from Mr McGurn and urban design evidence from Mr McGauran, Mr Czarny and Mr Holdsworth. The preferred built form recommended by the three urban designers varied considerably. The Tribunal refused that application but commented that good use should be made of a relatively rare redevelopment site. Whilst not prescribing a preferred built form outcome, it commented that development on the larger review site could be in the order of 6 to 9 storeys, acknowledging development on the site would be screened by four storey apartment buildings to the west. It also noted that whilst the Nepean Highway/Warrigal Road intersection is not a gateway site of regional importance, it is nevertheless a prominent site in a robust area. The Tribunal found that has the capacity to accommodate built form greater than the prevailing one and two storey development to the site's west. The Tribunal also supported setbacks in the order of 5-6 metres to Warrigal Road and Childers Street to facilitate canopy tree landscaping and a street interface consistent with the established character of the nearby residential area.

1. The main change in planning circumstances since the previous review has been the preparation and exhibition of Amendment C128. Submissions to that amendment have been reviewed by a Planning Panel and its report have been provided to Council.
2. The amendment affects an area designated as the Mentone Junction Precinct, which generally includes land on the north and south sides of Balcombe Road, west of Nepean Highway. It also includes the motel site opposite this review site. The amendment proposes Schedule 22 to the Design and Development Overlay be applied to the Mentone Junction Precinct. The schedule would apply design objectives and height limits and setbacks that would be mandatory.
3. With regard to this review site, the amendment would impose a mandatory height limit of 14 metres or 4 storeys. Development could comprise a streetwall with a maximum height of 11 metres (3 storeys). The streetwall would be required to be set back 6 metres from Childers Street, Warrigal Road and Balcombe Road to allow for a landscape buffer. The fourth level would be required to be set back behind the streetwall at a ratio of 1:1.
4. The amendment has been altered several times. Version 1 was placed on public exhibition. A second version comprising various changes was circulated by Council prior to the Panel Hearing, and the Panel has now recommended further changes.
5. The Planning Panel has made the following recommendations to Council.

Council should reconsider the substance of the design parameters included in DDO22 and modify them to accord with the recommendations made in the Hansen report.

The Council should consider applying a small number of discretionary design parameters - discretionary height controls for the three strategic development sites closest to the intersection of the Highway and Warrigal Road; and discretionary setback controls for the Warrigal Road frontage to the 33-35-35 Childers Street land, and all of the motel site (202-208 Nepean Highway frontages).

The Council should improve the drafting of Schedule 22 to the DDO to overcome the irregularities and unclarities set out in this report.

The Council should seek its lawyers advice as to whether it can proceed with the Amendment in modified form to the extent suggested by the Panel and if it can proceed with the Amendment; how best to do so. The matters of transformation and how notice might be given to potentially affected persons are key matters to be considered.

Subject to satisfactory notice procedures being identified and any further submissions considered and accommodated (perhaps involving assessment and advice by an Advisory Committee to Council), the Amendment should be adopted with changes. Alternatively the Amendment should be abandoned and a new amendment drafted and exhibited[5].

1. The responsible authority submitted that I should consider the amendment to be a seriously entertained proposal, a proposition strongly contested by Mr Bisset. He opined that the Panel's recommendations make the approval of the amendment neither certain nor imminent.
2. I am not persuaded that I should consider Amendment C128 to be a seriously entertained amendment for the following reasons.
3. Firstly the Panel found the amendment to be based on a sound urban design analysis of the precinct (prepared by Hansen Partnership and submitted to Council in February 2012). However I note that Hansen Partnership is one of five urban designers who have provided expert evidence on this site in various reviews[6]. Four have concluded that the site and its neighbour to the north can accommodate greater height, massing and scale than recommended by Hansen. I note that Mr Czarny has consistently recommended the least intensive built form on the review site.
4. Secondly I understand that no one from Hansen Partnership gave evidence at the Panel Hearing and hence the recommendations of their urban design study have not been the subject of the usual testing and review that is expected in the planning process. Rigorous review is important where there is a diverse range of professional views, and the strategic directions and statutory controls need to be based on robust professional advice. I am not persuaded that the Hansen Partnership report has been sufficiently tested to ensure that it provide the appropriate basis for statutory planning controls, particularly if they are to include mandatory controls.
5. Thirdly even if the Hansen report provides the appropriate urban design framework for the precinct, it is uncertain that its recommendations have been accurately translated into the statutory controls. The Hansen report does not include a draft design and development overlay. It is also silent on whether planning controls should be mandatory or discretionary
6. Fourthly I understand that the controls have been prescribed by Council rather than relying on its officers or the Hansen report. At its meeting of 27 April 2012, the Council directed the preferred statutory controls that were to be included in the amendment prior to the built form review commencing. Council's own officers did not support this approach, noting that the proposed controls would be without a strategic basis. I understand that it has been Council's decision to apply mandatory controls, regardless of advice in a letter dated 19 April 2012 from the Department of Community Development and Planning that cautioned Council against including mandatory controls. The letter also advises that any mandatory controls will require exceptional justification to be supported by the Minister.
7. Finally, even if the modified amendment considered at the Panel Hearing is soundly based, the Panel makes clear that the amendment needs to be redrafted. The Panel is uncertain as to the extent of, and the effects of any redrafting. At a minimum it recommends further exhibition. It also contemplates that the scope of the changes needed may require Amendment C128 to be abandoned and a new amendment prepared.
8. Given all of the above circumstances, I think there is considerable uncertainty regarding Amendment C128. Even if the planning authority adopts the amendment with or without the Panel's recommendations, there must be considerable uncertainty as to whether it can proceed in its present or modified forms. There must also be considerable uncertainty as to the timing of its likely approval.
9. I consider that the amendment fails to meet the tests of being "seriously entertained"[7].
10. I can give the Amendment limited weight as I required pursuant to s.60 of the Planning and Environment Act 1987. I therefore note its support for setbacks to street frontages, height of 4 storeys and upper level setbacks. I also note that it supports a development with greater height to 6 storeys on the site to the north of the right-of-way.
11. My findings regarding Amendment C128 lead me to dismiss much of the responsible authority's case in this matter. It submitted that this development should be refused as it does not comply with the amendment. I consider the development's noncompliance with Amendment C128 is insufficient reason to refuse this proposal. Nevertheless I must be satisfied that the proposal has responded to its built form and strategic context and that it provides acceptable amenity to its neighbours and future residents. I turn to these matters below.

Does the development adequately respond to its strategic and physical context?

1. I consider that this development responds well to the planning policy framework for the following reasons.
   • It will accommodate 55 households in a location convenient to public transport and the facilities and ambience of the Mentone activity centre.
   • In so doing it will broaden housing choices for Kingston residents, and make good use of existing infrastructure.
   • It will contribute to making Melbourne more compact, and reduce outward urban sprawl. It makes efficient use of a rare development site.
   • The proposal for a 4 storey built form, with a recessed fifth level in the northeast corner responds well to the findings of the previous review. In particular it would comprise a building that would positively demarcate but not overwhelm a prominent road junction.
   • It is largely consistent with the intent of the Hansen urban design report and Amendment C128.
   • It provides access to a local road and so will not adversely affect the operations of the higher order roads, nor exceed the capacity of the local road.

1. The interface to Childers Street is to comprise a 4 storey front wall, articulated with balconies, indentations and a varied palette of colours and materials. The building would have a height of 13 metres (excluding lift overrun). It would be set back between 7 and 8.8 metres from Childers Street. The fifth level would be set back 16.8 metres from Childers Street.
2. The courtyards of the ground floor dwellings would extend into the setback area. The ground level presentation to Childers Street would comprise a 3.8 metre wide landscape area adjacent to the street, with retaining walls up to 1.5 metres, and private courtyards with depths of 1.8 metres to 3.5 metres behind the retaining wall. Landscaping along Childers Street would comprise 5 "Greenspire" trees with heights of 9 metres, complemented by medium height and ground cover vegetation. This planting could be augmented with similar planting in the naturestrip.
3. I am satisfied with the development's interface with Childers Street. Whilst it would be one storey higher than the adjoining front façade of No.33-35 Childers Street to the west, the additional height is a minor variation to the streetscape as the shape of the roofline of the adjoining building varies, and this building is only approximately 2 metres higher than the peaks of the adjoining roofline. The proposed building would have a greater setback than No.33-35 Childers Street, making the additional height less noticeable from the street. I think people walking and driving past would perceive a continuous and integrated built form to Childers Street.
4. The height and massing might be problematic if it traditional single storey dwellings were on the south side of Childers Street. However, this interface comprises a tennis club and outdoor play areas for a school, the boundaries of which are well vegetated. There is no use or built form context that calls for a more recessed and diminutive design response. Indeed I concur with Mr Sheppard's advice that a robust, strong response to the Warrigal Road and Childers Street corner positively demarcates the southern entry to the Junction Precinct.
5. The responsible authority opined that the south elevation would be bland and boxlike. It also submitted that proposed vertical battens should be removed from the eastern part of the south façade. I do not agree. I think the façade is well articulated by the protruding balconies, the indents midway and at the western end, and by the mixed palette of materials and colours. I am also satisfied that the vertical battens positively add to the building's articulation and interest.
6. The responsible authority also submitted that the entire 7 metre setback should be used exclusively for landscaping, without protrusions of balconies, fences and secluded private open space.
7. I consider that the arrangement at ground level would be satisfactory. It would be consistent in appearance and form to the ground level interface provided by No.33-35 Childers Street adjoining to the west. Consequently it contributes to an integrated streetscape. It provides the opportunity for generous landscaping including canopy trees that was encouraged by the previous Tribunal. It would comprise setbacks consistent with the dwellings further west along Childers Street. Importantly it provides many opportunities for casual surveillance and social interaction along Childers Street.
8. With regard to the proposed fifth level, its setback to Childers Street, and the presence of the four storey building to the west would entirely obscure the fifth level from views from Childers Street.
9. I find the building's presentation to Childers Street to be acceptable.

Would the Warrigal Road/Balcombe Road interface be acceptable?

1. The eastern interface to Warrigal Road and Balcombe Road is the front façade to the building. It includes the building's front door, shops at the northern end, and views of the five levels. The eastern interface would have a height of approximately 16 metres at the north end. It would be set back from the street from 6.2 metres near Childers Street to one metre at the north boundary. The fifth level would be set back 7.8 metres to Warrigal Road. Secluded open space and upper level balconies protrude into the setback area.
2. The responsible authority opined that the building would be excessively tall, and the protrusions into the setback would diminish opportunities for canopy landscaping. It was also concerned that the areas adjacent to the shops provided minimal public spaces.
3. I have no difficulty with the 5 storey built form at the northern part of this site. I think the road junction is a major regional focal point that has a utilitarian, bland appearance. It is dominated by asphalt and horizontal flatness. There is little for pedestrians and motorists to demarcate it as a significant node or place in the locality. This building will, in a tempered way, demarcate the intersection in a way that is not overbearing or dominant. It would also be generally consistent in scale and height with other taller buildings visible along Nepean Highway at key junctions.
4. Mr Sheppard and Mr McFall opined that the protrusion of balconies into the setbacks did not restrict opportunities for landscaping along Warrigal Road. There is also the opportunity for Council to augment the landscaping by installing additional trees in the naturestrip adjacent to the footpath.
5. The building would present an interesting and varied façade to Warrigal Road. Indents divide it into at least four separate facades. The balconies are aligned differently to the walls and hence add variation and interest. This articulation is further emphasised by vertical battens and a palette of materials that includes bricks, cladding and various colour finishes. I am satisfied with the building's height, massing and design detail to Warrigal Road and Balcombe Road.
6. The Hearing paid careful attention to the public space in front of the three proposed shops. The Special Building Overlay requires the floor levels be raised, hence the shops will be higher than the adjoining footpath, separated by steps and a ramp. The public spaces immediately outside the shops would have widths from 1 to 3 metres. It is desirable that these areas are adequate to provide an acceptable amenity and integrate with the adjoining public realm.
7. The types of retail uses is uncertain. Mr Bisset submitted they may be 'secondary' shops particularly if other shops are expected to be included in the redevelopment of the site to the north of the right-of-way. Hence they may comprise convenience food and drinks that typically spill over to the public realm or they may comprise business services that have a limited public interface.
8. Mr Sheppard opined that the design should enable a premises serving food and drinks to provide tables and chairs outside and to spill into the footpath and the right-of-way. He opined it would be unnecessary to provide more external space, as the premises are relatively small and would not have a large clientele at any one time. Given the uncertainty of their future use, I concur with the permit applicant that the opportunity for streetside seating is available if required. I also note that residents of the development could consume their food and beverages within the private communal space within the building. It would be very easy to provide direct access between the shops and that space if required.
9. I think the building's presentation to Warrigal Road and Balcombe Road strikes the right balance. It comprises sufficient height, scale and massing for it to be visible in the Junction and to demarcate that place. In my view the building comprises attractive architecture that enhances a place that has little character. The façade to Warrigal Road is varied and interesting and it will also demarcate the arrival and departure to this Junction, without being unduly large and imposing. I am satisfied there are adequate opportunities for medium and canopy landscaping, and in time this would add to the public realm experience.

Would the interface to the right-of-way be acceptable?

1. The building's northern elevation faces a right-of-way that separates this site from the existing car park. Mr Bisset advised that Council intends that the right-of-way remain in place, and that the land to the north is likely to be developed for a building taller than this proposal. Hence this proposal has an interface to the right-of-way that needs to be carefully considered.
2. It is proposed that the built form facing the right-of-way to the west of the shops would comprise one and two storeys. A communal open space area would be located to the rear (south) of these apartments. A door to the apartment building would be provided to the right-of-way.
3. The responsible authority opined that the northernmost apartments turn their back to the right-of-way. No windows or door openings are provided to facilitate casual surveillance over the right-of-way.
4. I consider the design response to be reasonable. At this stage the future use of the right-of-way and the design of any development to its north are uncertain. I think a cautious approach to this interface is appropriate. The right-of-way may become a pleasant pedestrian accessway to its abutting sites. However, it may also become an unused and unwelcoming space, used mainly for vehicle access. I think that the appropriate design response is to ensure that future residents are protected from possible unwelcome behaviours or noise in the right-of-way I note that casual surveillance would be provided to some extent by the balconies of the apartments on the northeast corner. I think this proposal is a reasonable design response to an uncertain future.

Would the development impose adverse amenity impacts on neighbours?

1. The responsible authority submitted that the southwestern elevation would impose unreasonable loss of daylight to three apartments located in the adjoining apartment building at No.33-35 Childers Street.
2. The concern arises from a 6 metre length of wall to be built on this site's western boundary. Approximately 2 metres of that wall would extend along the side of a lightcourt built into the east facing wall of No.33-35 Childers Street. The lightcourt has dimensions of 4 metres by 0.5 metre. The responsible authority opined that the proposed wall would cause an unacceptable loss of daylight to apartments 109, 208 and 303 in No.33-35 Childers Street. The responsible authority opined that this proposed development should comply with Standard B19 of Clause 55 and the wall on the boundary adjacent to the lightcourt should be set back from the common boundary. Mr McGurn thought this response would be excessive in the circumstances.
3. The lightcourt has two functions. It firstly provides daylight to a common corridor on each level. I note that the corridor also gains light from south facing windows and from a window north of the lightcourt. As the corridor is not a habitable room, and it will continue to receive daylight when the wall is constructed, I consider requiring further setbacks to be unnecessary.
4. The second function of the lightcourt is to provide daylight to second bedrooms in the apartments in the southwest corner of that building. I note that a second bedroom at the third level in apartment 303 gains its daylight via a skylight in the roof. Hence Council's concerns are related to a second bedroom in both apartments 109 and 208 on levels one and two. Daylight from the lightcourt is provided to each of these two bedrooms via a horizontal lightwell located above the access corridor at each level.
5. The Guidelines for Higher Density Residential Development provides that spacing between buildings should be provided to maintain daylight access for residents[8]. Clause 55.04-3 does not strictly apply as the development exceeds four storeys and is to be applied only with regard to impacts on secluded open space.
6. I note that I was unable to inspect these two bedrooms. I also note the owners/purchasers did not object to this development. In my view the daylight presently received into the second bedrooms is likely to be limited. However, I think it unlikely that the proposed that extends less than half of the length of the lightcourt would make a significant difference to the strength of the light received to the two bedrooms.
7. The lighcourt would not be fully enclosed and the change in daylight is unlikely to be significant. Only two bedrooms are affected and these are secondary rooms rather than the primary bedrooms. I think the impacts would be acceptable. In my view requiring additional setbacks would be unduly onerous. However, to tale a conservative approach, I concur with Mr McGurn's recommendation that the west facing wall that abuts the lightwell should be painted with a light colour reflective paint to enhance the transfer of light.
8. Mr McGurn and Mr Sheppard opined that this proposal would not impose unreasonable overlooking or overshadowing of the apartments at No.33-35 Childers Street and I concur with their opinion.
9. With regard to the triangular land north of the right-of-way, presently used as the car park for the Tenpin Bowl, the responsible authority opined that this development fails to provide fair sharing of development rights as it extends too close to the northern boundary (right-of-way).
10. This development would be separated from the boundary of the land to the north by approximately 4 metres, including the width of the right-of-way. Four dwellings abut the right-of-way and a further four have a side-on relationship to that site. I consider this to be a reasonable separation in respect of privacy and access to daylight. As this development is to the south, it would have no adverse overshadowing impacts. Its traffic would not impact on the northern land. The primary impact would be the requirement that the development to the north be designed to prevent unreasonable overshadowing of the communal open space and secluded open space of the dwellings on the south side of the right-of-way. It is a large site and I am confident most architects would be able to readily design a building that minimises its impacts on this review site. I am satisfied that this proposal does not unreasonably constrain development options for the land on the north side of the right-of-way.
11. Furthermore, the likely development of the land to the north makes this proposal acceptable in built form terms. If the development to the north is in the order of six storeys or higher, it will be the primary focus of the junction, the most prominent and visible built form. This proposed building at four and five storeys, flanked by four storey apartment buildings to its west will form part of a "background" to the prominent building. They will complement each other to mark this prominent intersection.
12. A loading bay is to be provided within the basement. It is to be used by medium sized waste collection vehicles and moving vans used by residents. Ms Soulsby and Ms Tate opined that the loading bay would not adequately accommodate larger waste collection vehicles or moving vans. Consequently these larger vehicles would need to use Childers Street and that would cause traffic congestion.
13. The collection of waste would be managed by a waste collection plan that is to be approved by Council, and this plan can specify the size of the vehicle to be used and I would expect it to require the waste collection to be completed within the basement. Medium sized waste collection vehicles can access the basement. Furthermore medium sized vans typically hired by residents moving from one dwelling to another can also access the basement. As the dwellings are relatively small, few residents would be likely to use very large vans. Deliveries to the shops would typically be made by smaller vans that would use the loading bay in Balcombe Road. I consider the loading arrangements to be acceptable.
14. No other adverse amenity impacts were prosecuted by the parties. I am satisfied that the development would be a polite and respectful neighbour and a good fit into its context.

Would the development provide acceptable amenity for its future residents?

1. The parties generally agreed that the development would provide a high quality of amenity for its future residents. The dwellings would be provided with secluded private open space adjacent to living areas. No bedrooms rely on borrowed light, and most dwellings have views to the adjacent main roads. Screening of balconies and rooms has been minimised. The amenity of the individual apartments would be augmented by the communal open space. The site's convenient access to Mentone train station and activity centre, as well as Mentone Beach, recreation facilities, schools and parks would make this an attractive place in which to reside.

1. It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be set aside and a permit be granted.
2. The permit will include conditions that have regard to the submissions and evidence of the parties, and the matters that arise from my reasons.

Part 1-9 Balcombe Road and part 33-35-35 Childers Street, Mentone (Lot 2 and Road R1 on PS 028237)

• To use the land for shops, development of a mixed use building comprising dwellings and shops and a variation of the loading bay requirements

1. Before the development starts amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be substantially in accordance with the considered (advertised) plans submitted to Council on 14 June 2012, 3 August 2012 and 10 August 2013 but modified to show/provide:
   • (a) the provision of a landscape plan generally in accordance with the Landscape Plan dated received by Council on 14 June 2012 (ref: LCI 04/06/12) prepared by Memla, but incorporating the following:
     • (i) the delineation of all garden beds, paving, grassed areas, retaining walls, fences and other landscape works including areas of cut and fill throughout the development;
     • (ii) all existing trees on the site and within three (3) metres to the boundary of the site on adjoining properties, accurately illustrated to represent actual canopy width and labelled with botanical name, height and whether the tree is proposed to be retained or removed;
     • (iii) a range of plant types from ground covers to large shrubs and trees;
     • (iv) adequate planting densities (e.g.: plants with a mature width of 1 metre, planted at 1 metre intervals);
     • (v) the provision of seven (7) suitable medium sized (at maturity) canopy trees within the front setback of the property facing Warrigal Road and eight (8) medium (at maturity) trees within the private open space area, with species chosen to be approved by the Responsible Authority;
     • (vi) the provision of five (5) suitable medium sized (at maturity) canopy trees within the front setback of the property facing Childers Street, with species chosen to be approved by the Responsible Authority;
     • (vii) an associated planting schedule showing the proposed location, species type, mature height and width, pot sizes and number of species to be planted on the site. The schedule must be shown on the plan and incorporate the changes above;
     • (viii) sustainable lawn areas and plant species taking current water restrictions into consideration;
     • (ix) all trees provided at a minimum of two (2) metres in height at time of planting;
     • (x) medium to large shrubs to be provided at a minimum pot size of 200mm; and
     • (xi) the provision of notes on the landscape plan regarding site preparation, including the removal of all weeds, proposed mulch, soil types and thickness, subsoil preparation and any specific maintenance requirements.
   • (b) a comprehensive stormwater management strategy of the site comprising a brief drainage report with drainage concept plan showing the stormwater works to the nominated point of discharge addressing the minor and major storm events and incorporating Rainwater Tank/s and Water Sensitive Urban Design Treatments to the satisfaction of the Council;
   • (c) the basement ramp longitudinal section with grades and levels;
   • (d) a notation to state that "any ramps or steps are to be contained within the internal property boundary";
   • (e) a notation to state that "property boundary and footpath levels are to be set from Council's Roads and Drains Department before commencing works";
   • (f) location of all mechanical plant and equipment including, but not limited to, lift overruns, flues, exhausts and air-conditioning units;
   • (g) the ramp exit point altered and provided with line marking and signage to provide only a left turn exit manoeuvre at any time (in accordance with existing egress arrangements from the site);
   • (h) a note on plans stating: "footpath along the Warrigal Road frontage must be 2.1 metres wide and along Childers Street must be 1.8 metres wide and reconstructed as per Council's specifications and satisfaction";
   • (i) nomination of direction access doors for basement storage lockers will swing to ensure that these can be accessed;
   • (j) the removal of the hanging bicycle parking within the basement and provision of a common shared bicycle area on the upper level basement to meet the statutory requirements and designed to the satisfaction of Council;
   • (k) provision of a 2.5 metre by 2 metre splay to be provided at ground level which will allow for 50% visibility between a height of 0.6 metre and 1.6 metres to provide visibility between pedestrians on the adjacent Childers Street footpath and motorists exiting the existing driveway/ramp;
   • (l) provision of secondary entrances and windows to Dwellings 0.10, 0.11 and 0.12 towards the north (laneway) to improve natural surveillance and activation of this interface;
   • (m) provision and relocation of signage to the west of the crossover to the existing development as agreed and in accordance with the Order following Mediation;
   • (n) provision of reflective light colour materials and colours on the western wall to facilitate light to penetrate into the corridor windows and skylights of the eastern elevation of the adjoining development;
   • (o) elevation detail of all fencing proposed to each boundary, providing for permeable sections to provide for opportunity for passive surveillance;
   • (p) the provision of a full colour, finishes and building materials schedule (including samples) for all external elevations of the proposed building;
   • (q) an updated Sustainability Management Plan (SMP), including a number of additional initiatives, including:
     • (i) provision of external shading operable devices in a horizontal alignment for north facing windows and vertical alignment for west facing windows;
     • (ii) provision of sky lights to top level apartments to improve natural daylighting;
     • (iii) provision of 2 bicycle storage facilities within or adjacent to the building entry for the storage of visitor bicycles.

These are to be shown on development plans approved in accordance with the requirements of this permit to the satisfaction of the Responsible Authority;

(r) provision of a Lighting Plan indicating the location, type, lux/illumination of all external lighting, ensuring that it is installed in such positions to effectively illuminate all pathways, car parks, open space areas and other public areas to and designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on neighbouring land;

(s) nomination of all finished floor levels (to Australian Height Datum (AHD)) on all floor plans, indicating levels of all internal and external areas;

(t) the recommendations made in section 6 of the witness statement of Henry Turnbull dated 30 January 2013 to the VCAT Hearing in P3088/2012;

(u) the recommendations made in sections 1.1 to 1. of the Road Safety Audit prepared by Traffic Works dated 8 December 2013 (Project No.123540) in VCAT Review P3088/2012).

1. The use and development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

1. Prior to the occupancy of the development the footpath as described in Condition 1(h) must be constructed and maintained by the developer to the satisfaction of the Responsible Authority. A priced schedule of works within the footpath should be provided and the payment of Council's engineering fees may be required prior to the approval of the engineering plans.
2. The development of the site must be provided with stormwater works which incorporates the use of water sensitive urban design principles to the satisfaction of the Responsible Authority. The stormwater works are to improve stormwater runoff quality and retain onsite increased runoff as a result of the approved development. The system must be maintained to the satisfaction of the Responsible Authority.
3. Before the development commences, a Stormwater Management Plan showing the stormwater works to the nominated point of discharge must be prepared to the satisfaction of the Responsible Authority. The Stormwater Management Plan must be prepared by a qualified person and show all details of the proposed stormwater works including all existing and proposed features that may impact stormwaters (eg. trees to be retained, crossings, services, fences, abutting buildings, existing boundary surface levels, etc.) and measures to retain stormwaters on site.
4. The Stormwater Management Plan must be implemented to the satisfaction of the Responsible Authority so as to prevent overflows onto adjacent properties.

1. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses to the satisfaction of Melbourne Water.
2. The ground floor dwellings, retail tenancies and lobby must be constructed with finished floor levels a minimum of 300mm above the applicable flood level to the satisfaction of Melbourne Water.
3. All doors, windows, vents and openings to the basement car park must be a minimum of 300mm above the applicable flood level to the satisfaction of Melbourne Water.
4. Prior to the issue of a Certificate of Occupancy, a certified survey plan, showing finished floor levels (as constructed) reduced to the Australian Height Datum, must be submitted to Melbourne Water to demonstrate that the floor levels have been constructed to the satisfaction of Melbourne Water.
5. Any new internal fencing must be of an open style of construction to allow for the passage of floodwaters/overland flow to the satisfaction of Melbourne Water.
6. Prior to the commencement of works, a separate application direct to Melbourne Water must be made for any new or modified stormwater connection to Melbourne Water's drains or watercourses to the satisfaction of Melbourne Water.

1. The development hereby permitted must not be occupied until all buildings and works and the conditions of this permit have been complied with, unless with the prior written consent of the Responsible Authority.
2. Before the occupation of any dwelling and before the use allowed by this permit starts, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority.
3. Prior to the occupation of any part of the development approved under this Planning Permit, or such other date approved by the Responsible Authority, the applicant / owner of the land must construct all footpaths and garden beds located along the Warrigal Road and Childers Street frontages of the site in accordance with Council's specifications and to the satisfaction of the Responsible Authority at the developer's cost (including paving).
4. Prior to commencement of the development hereby permitted, a Construction Management Plan, to the satisfaction of the Responsible Authority, must be submitted to and approved by the Responsible Authority and when approved shall thereafter be complied with. The Construction Management Plan must clearly set out measures to appropriately address the reasonable amenity of surrounding properties during the construction period. The Plan is to include the following, but limited to measures to control the emission of dust/sand, rubbish on site, loading/unloading times, construction times, provision and location of amenities, and parking of builder's vehicles etc. This plan when endorsed must not be varied without the prior approval of the Responsible Authority. It must also be implemented to the satisfaction of the Responsible Authority.
5. Prior to the occupation of the development permitted, any boundary fences damaged during construction must be repaired and/or replaced as necessary to the satisfaction of the Responsible Authority, at the cost of the applicant/owner.

1. Concurrent with the endorsement of plans and prior to the commencement of any buildings and works on the Land, an amended Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. Three copies of the plan must be submitted. This should be generally in accordance with the endorsed Waste Management Plan approved as part of Planning Permit KP711/09. The plan must include but is not limited to:
   • (a) details regarding existing waste collection from the site, noting that the existing point of access is proposed to be used;
   • (b) the manner in which waste will be stored and collected including: type, size and number of containers;
   • (c) details of collection by the private contractor
   • (d) the size of the collection vehicle and the frequency, time and point of collection.

The waste management plan must be implemented to the satisfaction of the Responsible Authority. The waste management plan must not be modified unless without the written consent of the Responsible Authority.

1. The amenity of the area must not be detrimentally affected by the retail premises including through the:
   • (a) transport of materials, goods or commodities to or from the land;
   • (b) appearance of any building, works or materials;
   • (c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;
   • (d) presence of vermin;
   • (e) in any other way.
2. The shops authorised by this permit must operate only between the hours of 7.00am and 6.00pm Monday to Friday and 7.30am and 5.00pm Saturday and Sunday.
3. Except with the further consent of the Responsible Authority, the car parking areas within the approved development must be allocated as follows:
   • (a) 61 spaces for dwellings at a rate of one space per dwelling;
   • (b) 2 spaces at the rate of two spaces per shop;
   • (c) 11 spaces for visitors and customers.
4. Loading and unloading for the tenancies to be carried out within the designated loading bay, unless with written consent of the Responsible Authority.

1. The developer/owner must arrange with the Responsible Authority and VicRoads traffic management plans and a WORKS ZONE for any works that may affect traffic (both vehicular and pedestrian) or parking in Warrigal Road or any of the surrounding streets. The developer will be responsible for the costs of arranging a WORKS ZONE and reinstatement of parking restriction signs, to the satisfaction of the Responsible Authority.
2. No equipment, services and architectural features other than those shown on the endorsed plans shall be permitted above the roof level of the building unless with the written consent of the Responsible Authority.
3. All works on or facing the boundaries of adjoining properties must be finished and surface cleaned to a standard that is well presented to neighbouring properties in a manner to the satisfaction of the Responsible Authority.
4. All piping and ducting above the ground floor storey of the development (other than rainwater guttering and downpipes) must be concealed to the satisfaction of the Responsible Authority.

1. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
2. In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:
   • (a) The use and development is not started within two (2) years from the date of permit issue.
   • (b) The use and development is not completed within five (5) years from the date of permit issue.

In accordance with section 69 of the Planning and Environment Act 1987, the Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

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

[2] VCAT Orders dated 16 January 2013 issued following Mediation

[3] Clause 21.05 Residential Land Use Framework Plan

[5] Planning Panel report to Kingston Planning Scheme Amendment C128, 5 December 2012

[6] Mr Holdsworth, Mr Sheppard, Mr McGuaran, Mr Biles and Mr Czarny have all prepared expert urban design evidence for Tribunals or Panels.

[7] Lyndale v Black Pty Ltd and Black v MMBW (P82/1729 and P82/1730) [1983] 7 APAD at 470

[8] Objective 2.6.2 _Guidelines for Higher Density Residential Developm_ent