PE & Associates Pty Ltd v Boroondara CC & Ors [2011] VCAT 1717

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal being plans prepared by Crosier Scott Architects, Drawing Nos. TP01 - TP14 Revision E.
2. The decision of the Responsible Authority is set aside.
3. In permit application PP10/01034 a permit is granted and directed to be issued for the land at 454 - 456 Barkers Road, Hawthorn East in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • Construction of a four (4) storey with basement building containing dwellings, alter access to a Road Zone Category 1 and a reduction of the standard car parking requirements.

Mr D Bowden, Town Planner, Daniel Bowden Town Planning Pty Ltd

Mr Westcott in person and on behalf of Elizabeth Zweck

Mr Lloyd in person and on behalf of Christine Lloyd, Jinfei Chen, Elizabeth Meaden, Bo Lin & Gaofeng Zhou, David & Monica Buckley

Construction of a 4 storey building with basement containing 41 dwellings and 45 car parking spaces, reduction in the standard car parking requirement and alteration to access to a Road Zone Category 1

Application under Section 79of the Planning and Environment Act 1987.

Clause 32.01-4 - construct two or more dwellings on a lot

Clause 32.01- 6 construct buildings and construct or carry out works

Clause 36.04 - construct a building or construct or carry out works

Clauses 11, 15, 16, 18, 21, 22, 52.06, 52.34, 52.35, 55 and 65.

The subject site consists of two properties on the south side of Barkers Road approximately 30m east of the intersection of Barkers Road and Higham Road. The site is irregular in shape with a frontage of 42.68m to Barkers Road, a maximum depth of 60.96m and an area of 2,431.8m². The site has a fall of approximately 2.2m from east to west.

The Tribunal inspected the site and surrounds on 18 August 2011

Golden Wings International Pty Ltd v Boroondara CC & Others [2003] VCAT 1768; Grant v Boroondara CC [2005] VCAT 356 (1 March 2005)

1. PE & Associates Pty Ltd, the applicant is seeking a permit under the provisions of clause 32.01-4 of the Boroondara Planning Scheme to construct a building containing dwellings over two lots in Barkers Road, Hawthorn East.
2. Amended plans were substituted as the plans the subject of the application for permit and application for review. The plans show a proposed four storey, plus basement, apartment style building, containing 41dwellings and 45 car parking spaces. The proposed building is to have a maximum height of 12.70m and is to be of contemporary design with a flat roof. It is to be finished with precast concrete panels and rendered cladding in grey, cream and terracotta.
3. The Responsible Authority has indicated that if it had been in a position to make a decision it would have refused the application on the following grounds:

The scale and bulk of the proposed building is excessive and would have a dominating impact upon the streetscape and surrounding area.

The design, layout and massing of the proposed building fails to respond to the existing neighbourhood character.

The proposed building envelope setbacks are insufficient and would have a detrimental impact upon the private open space of surrounding dwellings and on the streetscape.

1. Adjoining and surrounding residents have objected to the proposal. Their concerns are encompassed in the grounds of refusal provided by the Responsible Authority.
2. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Boroondara Planning Scheme, I have decided to grant a permit for the proposed development. My reasons follow.

1. The character of the neighbourhood is recognised as having generally varied buildings styles with no period dominating. Lot sizes vary but are generally large. Most dwellings in the area are detached and set in well established gardens. The overall character of the area is that of 'leafy' suburban.
2. Clause 16 of the planning scheme sets out within the State Planning Policy Framework the States policy for housing. The policy promotes a number of objectives for residential development to encourage a range of housing opportunities, and strategies are set out to assist in achieving such objectives. The objectives cover integrated housing, location of residential development, strategic redevelopment sites, housing diversity, housing affordability and housing form.
3. The objective of clause 16.01-2 is 'to locate new housing in or close to activity centres and employment corridors and at other strategic redevelopment sites that offer good access to services and transport'. The strategies listed to assist in achieving this objective are:
   • Increase the proportion of housing in Metropolitan Melbourne to be developed within the established urban area, particularly at activity centres, employment corridors and at other strategic sites, and reduce the share of new dwellings in greenfield and dispersed development areas.
   • Encourage higher density housing development on sites that are well located in relation to activity centres, employment corridors and public transport.
   • Ensure an adequate supply of redevelopment opportunities within the established urban area to reduce the pressure for fringe development.
   • Facilitate residential development that is cost-effective in infrastructure provision and use, energy efficient, incorporates water efficient design principles and encourages public transport use.
   • Identify opportunities for increased residential densities to help consolidate urban areas.
4. Clause 16.01-3 sets out a list of strategies to assist in identify strategic redevelopment sites and include sites that are:
   • In and around Central Activities Districts.
   • In or within easy walking distance of Principal or Major Activity Centres.
   • In or beside Neighbourhood Activity Centres that are served by public transport.
   • On or abutting tram, train, light rail and bus routes that are part of the Principal Public Transport Network and close to employment corridors, Central Activities Districts, Principal or Major Activity Centres.
   • In or near major modal public transport interchanges that are not in Principal or Major Activity Centres.
   • Able to provide 10 or more dwelling units, close to activity centres and well served by public transport.
5. Emphasis by some of the submitters was that this site, although large is not a strategic development site located in close proximity to an activity centre. I would agree that it is not a strategic redevelopment site in the terms set out in clause 16.01-3 apart from being able to provide 10 or more dwellings. It is a short distance of approximately 1km from the Auburn Neighbourhood Activity Centre to the south and although public transport is in the vicinity it could not be said that the site is well served by public transport in the sense that it is close and convenient to get to. The Auburn Railway Station is approximately 1.1km walking distance to the south, a bus runs along Auburn Road approximately 400m to the west and the nearest tram routes are in Whitehorse Road approximately 700m to the north and Burke Road 750m to the east. These are not unreasonable walkable distances. The site is however located in close proximity to Preshil Primary School, Auburn Primary School and Carey Grammar School.
6. As the site has not been identified as a strategic redevelopment site and does not fit the criteria identified in the planning scheme that guides one to consider it is a strategic redevelopment site any proposal for the site must be considered in the context of the site, whether the proposal is a site responsive design, and minimises any detrimental impacts on neighbouring properties. I would agree with the Responsible Authority that even if this is not a preferred location, consideration of the proposal is not prevented and careful consideration must be given to the proposal's response to the location.
7. Clause 16 was amended by VC75 on 16 December 2010. It was submitted the amendment has resulted in a protection of development of the type proposed within this residential neighbourhood. Reading clause 16 as it now stands and as it was prior to the amendment does not lead me to that conclusion. Under policy guidelines the reference to Melbourne 2030: A planning update Melbourne @ 5 Million (Department of Planning and Community Development ,2008) has now been removed along with the clause under strategies in clause 16.01-2 that stated 'In Metropolitan Melbourne, locate more intense housing development in and around activity centres, in areas close to train stations and on large redevelopment sites'. The only other change noted is that under strategies in clause 16.01-3 instead of a reference to redevelopment sites that are 'along tram, train, light rail and bus routes...' the reference now is to 'on or abutting tram, train, light rail and bus routes ...'. I do not see that these amendments lead to the conclusion that there is to be no redevelopment similar to that proposed in any location other than activity centres, employment corridors and strategic sites.
8. Clause 16.01-2 still has as one of its strategies to 'increase the proportion of housing in Metropolitan Melbourne to be developed within the established urban area' whilst this clause does say 'particularly at activity centres, employment corridors and at other strategic sites' this does not suggest that other locations that are not in activity centres, employment corridors or strategic sites in an established urban area, similar to the location of this proposed development cannot be considered to provide increased housing.
9. I agree with the comments made by the Tribunal in Golden Wing International Pty Ltd v Boroondara CC & Others[2]

'The land is no better served by existing physical and social infrastructure than most other parts of Melbourne's inner to middle ring suburbs and, importantly, is not within or adjacent to any activity centre or fixed rail transport stop or hub - where the strategic focus for high density redevelopment is greatest'.

1. The site is located within the Residential 1 zone and is not affected by any overlays. The purposes of the Residential 1 zone is 'to provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households', and 'to encourage residential development that respects the neighbourhood character'.
2. At clause 21.07-2 it is recognised that 'the city's residential areas are much sought after living environment having an abundance of high quality community facilities, a high level of residential amenity and high standard of residential design, New development has the potential to be intrusive and out of character with our residential areas'. As such the policies seek to:
   • Encourage 'site responsive' and innovative design solutions that enhance and respond positively to the existing neighbourhood character of defined residential neighbourhoods.
   • Provide a mix and range of housing types and forms.
   • Maintain and enhance the City's present degree of residential amenity and to protect existing housing stock.

1. The proposed development is to be located on the south side of Barkers Road. Barkers Road is located in a Road Zone Category 1 and is a wide east west collector road. In the location of the subject site are residential dwellings generally located on large allotments and surrounded by generous landscaping. Immediately to the north on the opposite side of Barkers Road is a red brick double storey Victorian Italianate dwelling at 287 Barkers Road and the site at 289 Barkers Road is a part double storey dwelling covered by an individual Heritage Overlay. There is some medium density development and further east and west along the northern side of Barkers Road is Carey Grammar and Preshil Grammar Schools.
2. To the east of the site are 8 recently subdivided lots fronting Daniel Court which is accessed from Barkers Road. Development has recently commenced on one of the lots. To the south are 9 vacant lots recently subdivided with access from Higham Road. No development has commenced on these lots as yet, but Mr Hay provided plans showing his proposed development on lot 1, 4 Higham Road.
3. To the west on the corner of Barkers Road and Higham Road is Mr Lloyd's dwelling at 452 Barkers Road, a double storey Queen Anne dwelling with dense landscaping and a high front fence. Vehicle access to this property is via Higham Road.
4. Also immediately to the west is 2 Higham Road a double storey period style dwelling owned and occupied by Mr Westcott and Ms Zweck. Its rear private open space abuts the boundary of the subject site.
5. The Responsible Authority's Urban Designer stated:

With an overall area of over 2,400 square metres, a depth of some 60 metres and a frontage width of over 42 metres to Barkers Road, the site may have more opportunities than constraints, which will obviously facilitate higher density development.

Having said this the urban context within which the site resides will at the end determine the type of development that could be introduced on the site, its potential density, site coverage, building type and height etc. Barkers Road is a major east-west arterial road with a predominately green and leafy character and soft ambience in which built form is always subservient to landscaping and trees, rather than the opposite. The only exception/anomaly in the streetscape, especially in the vicinity of the site is the institutional buildings that form part of the Carey School on the north side of the road, see images below. The presence of these buildings, in particular the four storey Post Modernist (Deconstructivist) style building recently completed means that a degree of flexibility can be accommodated within the streetscape, but to what extent? That is the question.

1. Given the varied but generally large built form found in the area either in the form of older style dwellings as well as educational facilities it is considered that the site located on a main road can accommodate a more robust form of development.
2. The character of the area is undergoing some changes with the subdivision of the land to the immediate east and to the south it is expected that these smaller lots will contain generally two storey built form that will seek to maximise the full opportunity of each lot. This is already seen with the development being undertaken on one of the lots to the east as well as consideration of Mr Hay's proposed development in Higham Road. As a result of these changes built form will not be as hidden or as subservient to the landscaping as some of the larger dwellings in the area are currently.
3. I accept Mr McGauran's view that the landscaping and picket fence treatment at the front of the site with enclosing bays framing the courtyards of the 3 units at ground level facing Barkers Road will provide for a softening through landscaping of the front of the site. The central entrance which is setback 18m from Barkers Road is also to be framed with landscaping. This picks up on the landscaping within the area that often frames or screens the larger built forms.
4. When approaching the site from the east it was submitted the ramp entry to the basement car park would be a visual intrusion into the streetscape. It is expected that the eastern boundary will retain a timber fence therefore the entry will not be as intrusive as it may currently appear with no development on the lot immediately to the east. At the eastern interface there is to be a section of landscaping to be provided at the entry to the vehicle ramp.
5. As the building is to be cut into the site I would agree with Mr McGauran that from the east the building will be viewed as two levels with an upper attic level.

1. The proposed development is to consist of four levels made up of the ground, first, second and an attic upper level. The overall height of the development is 12.70m with a flat roof.
2. The Responsible Authority and resident objectors submit that the height is out of keeping with the character of the neighbourhood where even though there are period style large dwellings with their two storey form being higher than contemporary two storey development, the more appropriate height of development should be two or at the most three storeys. 'When viewed from the adjoining properties to the west of the site, the additional height when combined with the scale and massing of the building will represent an imposing structure when viewed from the private open spaces adjoining'.
3. There is no restriction on the height of buildings in this location, therefore the overall height of a building is generally assessed on how it sits in the context of the site and surrounding location and whether the upper levels are a dominating or recessive feature that will not have an impact or be highly visible from the surrounding area. That also means that setbacks and impacts on abutting properties are significant in the assessment.
4. Due to the proposed consolidation of the site its area of 2,431.8m² does lend itself to the placement of an apartment style building in this location rather than separate dwellings as expected on the two subdivided sites to the east and south. Apartment style development has recently occurred at 377 Barkers Road and it was submitted, at a contemporary two storey height, it was more of an appropriate scale within the surrounding area.
5. A distinction was also drawn with the height of the four storey Post Modernist (Deconstructivist) style building to the west at Carey Grammar School, being part of an educational facility rather than a residential development and Council's Urban Designer questioned whether this should be considered, and to what extent, in considering this proposal.
6. Mr McGauran expressed the view that the attic style of the upper 4th level will have no impact on surrounding development 'located centrally on the site and generously recessed from all interfaces ... encases the built form in a raking tiled roof form. The adoption of the use of attic forms achieves both enhanced housing capacity for precincts and to build roofscape typologies that reference traditional residential forms of a location. This has been well tested in Melbourne and is appropriate in this context'.
7. Given the considerable setback from all interfaces of the upper attic level, as well as the stepping of the other levels, this will result in the upper 4th level not being visible within the streetscape and will not dominate views of the development. When travelling east to west along Barkers Road the development will be informed by the preceding new development to be located on the subdivided lots to the east . It is expected that lots 1 and 8 either side of the entry to Daniel Court will contain two storey built form, the two storey element of the development will therefore be read in this context and be generally screened from the east until almost opposite the site with views only to the second level. The attic upper level centrally located and setback 19m from the front of the site will not be read in this context.
8. Similarly when travelling from west to east the heavily vegetated site at 452 on the corner of Barkers Road and Higham Road will screen to a large extent even the second floor element with the attic upper level due to its central location and setback not being visible.

1. The Responsible Authority was critical of the 9m front setback which will result in the building sitting forward of the dwelling to the west. As the building to the west is extensively screened by landscaping the two built forms will not be read in the context of the streetscape as one sitting too far forward of the other.
2. Along the eastern boundary there is a setback to a large tree on the neighbouring property and 4.5m setbacks along this interface to the ground floor dwellings. There is a 4.47m setback at the south eastern corner and a setback of 4.6m to the southern boundary.
3. The Responsible Authority was critical of the failure to more distinctively break up the eastern and similarly western elevations. The unit located to the east on the street frontage is setback 7m from the eastern boundary and there are two indentations in the built form along the eastern elevation of 8.36m and 13m at ground level with setbacks at first floor of between 3.11m and 6.52m with further indents between the bays of between 1.8m and 6.2m. At second level, setbacks are a minimum of 6.5m with indents up to 13m and at the third, attic style level the eastern setback is 8.5m to 10.05m.
4. I accept Mr McGauran's description of the eastern elevation relating to the east west orientation of the lots in the subdivision to the east with the indentations in the eastern elevation breaking up the built form into three sections, which picks up on the three sections framed at the front of the development.
5. To the south and the right of way to the rear there is a setback of 4 to 4.5m to the built form at ground level and first floor level. Setbacks to the second floor are 8m and 15.64m with the setback to the attic level of 15.63m to the balcony to 18.62m to the building and opposite the right of way 8.05m to the balcony and 11m to the built form. This stepping down of the built form is considered appropriate in relationship to the subdivided, yet to be developed lots at 4 Higham Road.
6. Mr Hay expressed concern that there would be significant overlooking to his proposed dwelling on lot 1, 4 Higham Road, particularly as the private open space for this development is to be to the north. There is a considerable separation distance between even the ground and first floor level of the development to the boundary of lot 1 across the 3m wide right of way. Screening of balconies and windows within 9m is to occur and given the further setback of the second level from the southern boundary and the upper attic level it is unlikely Mr Hay will see anymore than the roof line.
7. The interface of the built form to the west is the more critical element of the development. The western elevation will relate to the eastern side elevation of Mr Lloyd's dwelling at 452 Barkers Road. His dwelling is setback approximately 3 to 5m from the common boundary with a garage located on the boundary in the south east corner of his property. The proposed development is to be setback 3m from the boundary with indentations similar to the eastern elevation of 6.7m and 13m at ground level. At first floor the built form setback is to vary from 3.5 towards the front of the site to 4.5m with a uniform setback of 6.80m to the second floor and 10m to the attic upper level with the dormer windows encroaching approximately 1m into this setback.
8. Mr Lloyd highlighted concern in relation to an upper level attic window on the east elevation of his dwelling and the likely impact from overlooking. Screening required for windows and balconies will ensure that there is no unreasonable overlooking in these circumstances.
9. To the south of Mr Lloyd's dwelling is Mr Westcott's dwelling at 2 Higham Road. The rear open space of Mr Westcott's property is to the east and consists of a landscaped courtyard area. The kitchen and living room of this dwelling 7.3m from the common boundary also have an easterly aspect to take full advantage of the landscaped rear private open space. The landscaped planting in the rear courtyard has resulted in an effective screen of Eucalyptus scoparia and bamboo in the northern section screening the existing built form on the subject site.

1. 'The appellants correctly highlighted that the concept of neighbourhood character is not just about the streetscape. It also includes such elements as the siting and scale of buildings and the way in which buildings integrate with open space areas. It also includes the nature and "feel" of an area, including that experienced in the rear yards of neighbouring properties'[3].
2. Mr Westcott submitted the proposed development in its current form will significantly diminish the amenity of his rear private open space and living area. In his view there is an inadequate setback at the rear south west elevation of the building that will result in significant visual bulk when viewed from the rear of his property as well as the potential for overlooking into this rear private open space.
3. The built form at the south west elevation does extend further south than the existing two storey building and will therefore be more visible from Mr Westcott's rear private open space, extending to about where the existing garages are located. The ground and first floor levels at this corner will present as a two storey element of 7.42m, 4.5m from the common boundary providing a separation from the rear of Mr Westcott's dwelling of approximately 12m. This includes a stepping back in the built form where the balcony for unit 20 is located The second level is setback 6.65m from the common boundary and will be at a height of 10.63m with the attic upper level 9 - 10m from the common boundary. This level extends to the south approximately half way along the rear boundary of Mr Westcott's property with the attic upper level extending south approximately 4m from his northern boundary.
4. It is not unexpected within a residential area that two storey development will be visible on adjoining sites and in this respect the ground and first level setbacks and the stepping of these elements at this south western corner are considerate of the aspect from Mr Westcott's property. Whilst Mr Westcott will be aware of the second and attic levels of the building their visibility from his rear private open space will minimal, if at all. This is due also to their setbacks from the southern and western boundaries and the stepping of these elements.
5. Additional overshadowing of Mr Westcott's property as a result of the proposed development will occur at 9am. This was of particular concern to Mr Westcott who noted that the eastern aspect of his dwelling and the morning sun is a significant amenity attribute. The shadow at 9am increases part way into the rear courtyard area but does not extend to the building line so that the eastern morning sun at the equinox will still penetrate into the kitchen and living room of the dwelling. By 10am the shadow has receded to that which currently exist in the courtyard as a result of the rear brick fence. It is therefore not considered that the proposed development will create additional unreasonable overshadowing to Mr Westcott's property to significantly impact on his amenity.
6. Shadowing will occur to the east elevation of Mr Lloyd's dwelling until after 10am at the equinox. It is expected that the shadow cast will impact to a certain extent on the upper level attic window but this will improve by 10am.
7. The southern ground floor courtyards of units 7, 8 and 9 will be impacted by shadow for most of the day at the equinox. Shadowing to the eastern boundary will generally not increase what already exists and will have minimal impact on the properties to the east.

1. In addition to the setbacks and stepping of the built form the landscaping proposed on the site is intended to sit the built form within a landscaped setting. Mr Patrick highlighted the relationship of the proposed built form with 2 Higham Road and has recommended the use of Aristocrat Pear which grows to a height of 12m with a 5m spread to provide amenity as well as screening to Mr Westcott's property. Combined with the existing vegetation in Mr Westcott's courtyard these trees will provide excellent screening but as they are deciduous will allow for winter light to enter the courtyard area. Mr Patrick indicated that planting these species at a height of 3m was preferable to a 5m height as they were likely to provide for more vigorous growth if allowed to establish more slowly.
2. Apart from the area where the roof of the entry to the basement car park is located landscaping is proposed around the whole perimeter of the site, as well as extending into the indentations of the building.
3. There are two significant trees on abutting properties. A large mature Liquidambar in Mr Lloyd's property is located close to the eastern boundary with the subject site. Mr Patrick indicated that the basement will slightly intrude into the root zone of this tree but is within the limits recommended under the Australian Standards. He considered that appropriate protection of this tree can occur.
4. To the west is a Lemon Scented Gum. To accommodate for the tree root protection zone for this tree the ramp to the basement has been reconfigured. Further along the eastern boundary in ground tree planting is proposed above a retaining wall with a row of Chanticleer Pears with a spread of 4m. These trees are deciduous and expected to provide effective screening for the new dwelling currently under construction to the east with dense branches and good autumn colour.
5. On the north eastern corner of the site at the entry to the basement ramp landscaping in this location is to include a Natchez Crepe Myrtle which has a height of 8m at maturity and a canopy spread of 5m. This will be visible when travelling west along Barkers Road and apart from the break where the ramp is located a vegetated edge will continue along the front of the site contributing to the 'leafy' suburban character of the area. Along the frontage large growing Green Vase Zelkova are proposed, alternating with the Natchez Crepe Myrtle as well as a clipped hedge of Orange Jessamine along the footpath providing both a streetscape and pedestrian relationship with the vegetation.

Do any other matters warrant rejection of the proposal?

1. Traffic generated as a result of the proposed development and its likely impact on the surrounding streets, when considered in terms of the increased development to occur in Daniel Court and 4 Higham Road, was raised by several of the residents.
2. Ms Dunstan gave evidence that 41 car spaces, one for each dwelling along with 4 visitor car spaces, bicycle parking at the rate of 1 for each dwelling and 10 bicycle visitor spaces is proposed on site.
3. Clause 52.06 sets out the statutory requirement for car parking as 2 car spaces per dwelling which would equate to 82 onsite car spaces. Clause 22.03 of the Boroondara Planning Scheme sets out a requirement of 1.5 spaces per dwelling and 0.2 spaces per dwelling for visitors this equates to 62 resident spaces and 8 visitor spaces. Under the provisions of ResCode at clause 55.03-11, 1 car space is required for each one and two bedroom dwelling and 1 visitor space for every five dwellings in a development of five or more dwellings.
4. Ms Dunstan submitted the more appropriate requirements were those of clause 55.03-11 and this view has been reflected in the Advisory Committee Report (August 2007) Review of Parking Provisions in the Victorian Planning Provisions (draft clause 52.06).
5. The Responsible Authority also adopted this approach concluding 'that the application of Clause 55.03-11 (ResCode) rates may be considered for this site'.
6. Based on these conclusion which I accept, 49 car spaces are required. 41 are provided with 4 visitor spaces resulting in a shortfall of 4 visitor spaces.
7. Higham Road was described as providing parking for residents in the street and overflow parking for nearby Barkers Road residents. Due to the unsuitability of nearby streets for parking, cluster parking tends to occur at the northern end of Higham Road. Given this focus on the northern end of Higham Road it was submitted this may lead to an obstruction to traffic flow at the intersection of Higham Road and Barkers Road.
8. In Ms Dunstan's view even if visitor spaces are provided on the site, visitors may tend to park in the street. She noted Barkers Road allows for unrestricted parking outside peak times and the surveys conducted showed low demand for on street parking in the area, therefore any overflow from the proposed development was unlikely to have a significant impact on the area. Even taking account of the proposed new development to occur on the adjoining subdivided lots, there is unlikely to be any additional impact as these lots are expected to accommodate standard housing, providing onsite parking in the form of 2 car spaces, with visitors to such properties often parking on site.
9. Ms Dunstan acknowledged that there were several schools in the area and Boroondara, due to the significant number of schools within the overall municipality, experiences significant traffic moving in and out of local streets, particularly in peak school times. Residential development will not result in either an impact on such traffic flows or add in a significant way to the existing volumes of traffic.
10. The entry to Higham Road from Barkers Road contains a standard traffic island which to some may cause the bank up of traffic turning into and out of this local street, however as Ms Dunstan pointed out, this traffic island has been installed by the Council to slow traffic and to allow pedestrians to safely cross the street. Making it harder for vehicles to get into and out of the local street is said to discourage drivers from using such streets as cut through streets.
11. I accept that the appropriate assessment for onsite car parking is that of clause 55.03-11 and as such consider the provision of 41 car spaces on site as appropriate. I also consider the provision of 4 visitor spaces on site to be sufficient based on the evidence provided by Ms Dunstan of the availability of nearby on street parking.
12. I accept Ms Dunstan's evidence that the proposed development will generate a low volume of traffic in the context of the existing traffic volumes using Barkers Road which is a VicRoads declared Main Road.
13. I take no issue with the proposed ramp construction which allows for the protection of the Lemon Scented Gum on the adjoining site to the east. The ramp was also redesigned to allow an appropriate gradient for access by a small waste collection vehicle. As waste collection is now proposed from the basement there will be no vehicle impacts on the rear right of way off Higham Road.

1. Draft conditions were provided by the Responsible Authority for discussion at the hearing. I have taken account of the submissions and comments made by the parties in relation to conditions and have added or deleted conditions where I considered appropriate. In this respect I have accepted the recommendations of Mr McGauran, although I do not consider it necessary to add additional landscaping to the roof over the basement access partly because there will be limited views to this area. I have also accepted Ms Dunstan's view that it is unnecessary to install a 'stop-go' light system in the basement near the end of the ramp.
2. I have also included the recommended conditions by Vic Roads that were not included in the draft conditions.

1. The character of the area contains large sites with large built form on the sites but often totally enclosed in landscaping creating a 'leafy' suburban character. Change in the area is occurring due to the recent subdivision of land to the east and south with an expectation that built form will be more evident rather than landscaping. The proposed development whilst large will however be enclosed within in its own landscaped setting that will contribute to filtering views of the built form from the street and adjoining properties as well as contributing to the existing character of the area.
2. The setback of the attic style 4th level and its location centrally on the site leads me to conclude that this element of the built form will not visually dominate the streetscape or be readily viewed from adjoining properties.
3. The size of the site on a main road lends itself to an apartment style development and in this respect the proposed development has been designed to step down towards adjoining properties ensuring there will be minimal impacts by way of overshadowing and overlooking.
4. A permit is granted subject to conditions.

Construction of a four (4) storey with basement building containing dwellings, alter access to a Road Zone Category 1 and a reduction of the standard car parking requirements in accordance with the endorsed plans.

1. Before the development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and three (3) copies provided. The plans must be substantially in accordance with the substituted plans prepared by Crosier Scott Architects, (TP01-TP14), Revision E, but modified to show:

(a) All bedroom windows to the uppermost level of the building as depicted on the elevation plans clearly shown on the proposed third floor plan;

(b) A Landscape Plan in accordance with Condition 3 of this permit;

(c) A Tree Management Plan in accordance with Condition 6 of this permit;

(d) An updated Waste Management Plan in accordance with Condition 17 of this permit.

(e) Relocate storage units from the area in front of car parks 16 to 25 to locations in front of car parks 9, 30, 31, 35, 36, 37 and to the sides of car space 10 and Visitor space 1.

(f) Reduce the aisle servicing storage areas 8 to 10 and 30 to 37 from 1800mm to 1200mm in width, aligning the stores with the eastern alignment of car spaces 16 to 25.

(g) Amend the interior hallway and entrance thresholds to units to provide for an indent of 300mm, to create a hall width of 1800mm outside entries to Units 1, 2, 3, 6, 7, 8, 10, 11, 13, 15, 16, 17, 20, 21, 22, 24, 25, 28, 29, 31, 33, 37, 38, 39, 40 and 41. Refer for SK1 for an example.

(h) Screens to balconies to the front of the site to be at a height of 1m.

1. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason (unless the Boroondara Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.

1. A landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When satisfactory, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three (3) copies provided. The landscape plan must be generally in accordance with the landscape plan dated July 2011 prepared by John Patrick Landscape Architects (11-240 TP VCAT), except that the plan must show:

(c) Quantity and location of shrubs, grasses and vines nominated in the plant schedule;

(d) Minimum mulch depth of 75mm for all garden beds and planters;

(g) Any tree protection measures required by the Tree Management Plan.

1. Landscaping as shown on the endorsed landscape plan/s must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.

1. All landscaping works shown on the endorsed landscape plan/s must be maintained and any dead, diseased or damaged plant replaced, all to the satisfaction of the Responsible Authority.

1. Prior to the endorsement of the plans referred to in Condition 1 of this permit or the commencement of any works including demolition or levelling of the site, a Tree Management Plan prepared by a suitably qualified and experienced Arborist must be submitted to the satisfaction of the Responsible Authority. When the Tree Management Plan is to the satisfaction of the Responsible Authority it will be endorsed and will then form part of the Permit. Three (3) copies of the Tree Management Plan • must be provided. The Tree Management Plan must discuss the management and maintenance of canopy trees on adjacent properties within 3 metres of the subject site, making specific comment on the following matters to the satisfaction of the responsible authority ensuring that the trees remain healthy and viable on site:

(a) The establishment of appropriate foundations within the trees' Tree Protection Zone (TPZ) measurements. The foundation type and method will need to be specified by the arborist in conjunction with engineering specifications;

(b) The mapping of the foundation excavation points on a site plan;

(c) Reporting on the presence of any exposed roots over 50 mm diameter and management of these roots e.g. how they were pruned, fertilisation, watering regime etc;

(d) When supervision of an arborist will be required on-site and time frames specified for supervision;

(e) The establishment of a fixed TPZ and where it will be located in relation to the trees and proposed development. This TPZ should be clearly identified on a site plan and have specific recommendations stipulated on these plans referenced from the Tree Management Plan;

(f) Any remedial pruning works that are required to be performed on the trees before, during and post development of the site. The pruning comments must reference Australian Standards 4373:2007, Pruning of Amenity Trees and a detailed photographic diagram specifying what pruning will occur;

1. All buildings and works within the Tree Protection Zones and Critical Root Zones as specified in the Tree Management Plan must be supervised by a suitably qualified and experienced Arborist, to the satisfaction of the Responsible Authority.

1. All trees specified in the Tree Management Plan are to be protected and maintained in accordance with the conclusions and recommendations set out in the Plan, to the satisfaction of the Responsible Authority.

1. Before the development (including demolition) starts, a-tree protection fence must be erected around the trees specified in the Tree Management Plan to define a "Tree Protection Zone". The fence must be constructed as specified in the Plan to the satisfaction of the Responsible Authority. The tree protection fence/s must remain in place until construction is completed.

Contractors to be advised of trees to be retained

1. The owner, builder or project manager of the site must ensure that, prior to the commencement of buildings and works, all contractors/tradespersons operating on the site are advised of the status of trees to be retained as detailed in the Tree Management Plan, to the satisfaction of the Responsible Authority.

Regulation of activities in Tree Protection Zone

1. No vehicular or pedestrian access, trenching or soil excavation is to occur within the Tree Protection Zone as detailed in the Tree Management Plan without the prior written consent of the Responsible Authority. No storage or dumping of tools, equipment or waste is to occur within the Tree Protection Zone.

1. The site must be drained to the satisfaction of the Responsible Authority.

1. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Council's drains or watercourses during and after development, to the satisfaction of the Responsible Authority.

Driveways and Car Parking areas to be constructed

1. Before the use starts or any building is occupied, area/s set aside for car parking, access lanes and driveways shown on the endorsed plans must be:

(b) Formed to such levels and properly drained so that they can be used in accordance with the endorsed plans;

(c) Surfaced with an all weather seal coat {or surfaced with compacted crushed rock or gravel};

(e) Clearly marked to show the direction of traffic along the access lanes and driveways; and

1. Any new vehicle crossover or modification to an existing vehicle crossover must be constructed to the satisfaction of the Responsible Authority.

1. All pipes (except down-pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view, to the satisfaction of the Responsible Authority.

1. An updated waste management plan must be prepared to the satisfaction of the Responsible Authority. Once satisfactory, such plan will be endorsed and must be implemented to the satisfaction of the Responsible Authority. The plan must provide the following details of a regular private waste (including recyclables) collection service for the subject land including:

(d) Delivery of bins to waste collection points and retrieval of bins once collected or location of collection points within basement

1. Prior to the commencement of any site works whatsoever, the owner must submit a construction management plan to the Responsible Authority for approval. No works are permitted to occur until the Plan has been approved in writing by the Responsible Authority. Once approved, the Construction Management Plan will be endorsed to form part of the Permit and must be implemented to the satisfaction of the Responsible Authority. The Plan must be to the satisfaction of the Responsible Authority and must provide details of the following:

(a) Hours for construction activity in accordance with any other condition of this permit;

(b) Measures to control noise, dust, water and sediment laden runoff;

(c) The location and design of a vehicle wash down bay for construction vehicles on the site;

(d) The location of parking areas for construction and sub-contractors' vehicles on the site, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises and traffic flows. Any basement carpark on the land must be made available for use by sub-contractors/ tradespersons upon completion of such areas, without delay;

(e) Measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan;

(f) Contact details of key construction site staff;

(g) The location of any site sheds and the like; and

1. All works including earthworks, demolition and construction activity associated with the approved development must take place only during the following hours, except with the prior written consent of the Responsible Authority:

20 An Environmental Management Plan must be prepared to the satisfaction of the Responsible Authority. Once satisfactory, such plan will be endorsed and must be implemented to the satisfaction of the Responsible Authority. The plan must include:

1. Building services commissioning and tuning;
2. Preparation and distribution of a Building Users' Guide;

1. Preparation and implementation of a Waste Management Plan, achieving an 80% minimum construction waste re-use and/or recycling rate; and

1. Installation of meters and sub-meters in accordance with Green Star requirements.
2. location of solar hot water pre-heating panels;
3. Installation of ceiling fan in the living area of each apartment;
4. The apartments designated as complying with universal design requirements.

21. The submission of a report to Council upon completion of the project, that documents the implementation of sustainability initiatives included in the ESD Management Plan, and which demonstrate how a Green Star, 4 Star benchmark, using Multi-Residential v1 rating tool was achieved.

1. The proposed new vehicle crossover on barkers Road must be constructed in accordance with the submitted plans to the satisfaction of the Responsible Authority.
2. The edges of the vehicular crossover on Barkers Road shall be angled at 60 degrees to the road reserve boundary, to the satisfaction of the Responsible Authority.
3. The basement ramp slope must not be greater than 1 vertical to 20 horizontal for at least the first 6.0 metres inside the property. This requirement sill ensure that existing vehicles are substantially stationary prior to crossing the footpath and hence not a risk to pedestrians.
4. All car parking spaces shall be designed to allow all vehicles to drive forwards when both entering and leaving the property.
5. Prior to the commencement of works within barkers Road reserve the applicant is to receive written consent from VicRoads for those works in, or under or over the Barkers Road reserve in accordance with Section 63 of the Road Management Act 2004.
6. The developer must pay the full cost of all road works, drainage, service relocation, and any other costs.

(a) The development does not start within two (2) years of the issue date of this Permit; or

(b) The development is not completed within four (4) years of the issue date of this Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) 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] [2003] VCAT 1768 at [12]

[3] Grant v Boroondara CC [2005] VCAT 356 (1 March 2005) at [25]