• A reduction of the car parking requirements associated with the use of the land for dwellings, medical centre and restaurant.
• A waiver of the loading bay requirements.

1. The permit is subject to the conditions contained in the Appendix to these reasons.

Mr D Scally, Solicitor of Best Hooper. Evidence was called from:

• Mr J Govenlock, Town Planner of Urbis.
• Mr J Brownlie, Traffic Engineer of Cardno Victoria Pty Ltd.

The written evidence of Ms L Dowey, Landscape Architect of John Patrick Pty Ltd was tabled. Ms Dowey was not required to be called to give evidence.

Ms M Harrod, Mr E Neff, Ms S Flannigan, Mr & Mrs Medhurst, Mr E Howard, Ms M Daley.

Development and use of a four-storey building (plus basements) accommodating dwellings, convenience shop, food & drink premises (café), medical centre and associated car parking.

Application under Section 77 of the Planning and Environment Act 1987.

Cl. 31.02 & 32.01-1 (use of land in R1Z for the purpose of convenience shop and food & drink premises).

Cl. 32.01-4 (construction of two or more dwellings on land in R1Z).

Cl. 32.01-6 (construction of buildings and works associated with a Section 2 use on land in R1Z).

Cl. 31.02 & 34.02-1 (use of land in B2Z for dwellings).

Cl. 34.02-4 (construction of buildings and works on land in B2Z).

Cl. 43.01-1 (construction of buildings and works on land in HO354).

Cl. 52.06 (reduction of the car parking requirements).

Cl. 52.07 (waiver of the loading bay requirements).

Cl. 52.29 (alteration of access to a road in a Road Zone Category 1).

Cl. 10, 11, 11.02, 11.04, 15, 15.01, 16, 16.01, 17, 17.01, 18.02, 21, 22.02, 22.04, 22.05, 22.09, 22.12, 22.13, 32.01, 34.02, 52.06, 52.07, 52.29, 55 and 65.

The review site is located on the north-east corner of Waverley Road and Oak Grove in Malvern East. It is a vacant 1319 square metre site that was previously occupied by a service station. To the east is a single storey shopfront with a dwelling to the rear. To the north and west are single-storey dwellings. To the south are commercial/retail premises of a two-storey scale. A tram route runs along Waverley Road.

We undertook an inspection of the site and surrounds (including the adjoining property at 2 Oak Grove) after the hearing.

Pearl Diamond Pty Ltd v Stonnington CC [2010] VCAT 1796

Daryl Pelchen Architects Pty Ltd v Stonnington CC & Ors [2010] VCAT 1670

K & B Reichert v City of Banyule and ors (Appeals 1996/38819 and 1996/43063)

1. In December 2010, an application was made to the Stonnington City Council for a planning permit to construct a four-storey mixed-use development (plus basement car park) on the review site. Contrary to the recommendation of its planning officers, the Council resolved to refuse the application on grounds relating to policy, neighbourhood character, heritage, amenity impacts, internal amenity, loading/unloading, car parking, traffic and overdevelopment.
2. This is an Application for a review of the Council's decision.
3. Objectors to the planning application oppose the grant of a permit on grounds that are similar to those of the Council.
4. The key issues for determination in this matter may be summarised as follows:
   • Is the proposed built form an acceptable response to the strategic and physical context of the review site?
   • Will the development have an unacceptable impact on the amenity of adjoining properties?
   • Is adequate car parking provided, and will the development result in unreasonable traffic impacts?
   • Will occupants of the development be provided with an acceptable level of amenity?
5. The Tribunal 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 Stonnington Planning Scheme, we have decided to set aside the Council's decision and grant a permit. Our reasons follow.

1. This is the second Application for the development of this site to come before the Tribunal. An earlier Application[2] sought approval to construct a somewhat similar four-storey building for use as retail/office, convenience shop, food & drink premises (café) and dwellings. Car parking was proposed to be provided within a two-level basement. The Tribunal decision in that case was to direct that no permit be granted. It reached this decision on the basis that the proposed retail/office use was prohibited because its vehicle access would be gained over that part of the site that is within the Residential 1 Zone[3].
2. Notwithstanding its conclusion that a permit could not be granted, the Tribunal considered it would be helpful to the parties if it set out its findings in respect of the proposed built form, the amenity impacts and the on-site amenity. The Order included some very clear comments in respect of the changes that the Tribunal believed should be made to the proposed building to render it acceptable.
3. We were provided with differing views on the issue of what weight ought to properly be given to the previous Tribunal decision. It is evident that the Council's officers gave the decision significant weight and undertook a detailed assessment of the extent to which the present proposal responds to the Tribunal's findings. This assessment led them to the conclusion that the proposal had been sufficiently modified to warrant the grant of a permit.
4. The residents urged us to assess this proposal afresh, and give little (if any weight) to the earlier Tribunal decision. As we understand it, their primary submission in support of this position is that they were not as adequately informed or organised at the time the previous proposal came before the Tribunal and, had they been, the Tribunal may have made different findings.
5. In contrast, the Applicant referred to the 'doctrine of repeat appeals', which we will outline shortly. It was argued that if the previous application is of recent date, the new application responds to the Tribunal's concerns, and the policy and site contexts have not changed, then there is good reason to give weight to the previous Tribunal decision.
6. We think it would be useful to set out the principles of repeat appeals, as established by case law. In the matter of Benc v City of Doncaster and Templestowe and others[4], it was stated:

In the case of a different but similar application which has been prepared in accordance with the advice of the Board, equity or fairness demands that considerable weight be given to the fact that the applicant has endeavoured to accommodate suggestions as to what would be appropriate.

1. Relevant to the consideration of repeat appeals are the tests that are set out in the Tribunal's determination of K & B Reichert v City of Banyule and ors[5]:

The appeal before the Tribunal is in many ways a "repeat appeal". While the Tribunal is not bound by precedent, there need to be reasonable grounds for a later appeal determination to depart from a Tribunal view on a very similar proposal earlier. During the hearing, I asked and received responses about what it is that is different in the circumstances of the present appeal to those prevailing at the time at which the very similar development was refused by the Tribunal. It seemed to me that the factors which might justify a departure from an earlier determination could include:

• significant changes in the application itself;
• changes in the circumstances of the land and its surrounds;
• changes in planning policy; and/or
• changes in the interpretation of the facts or law relevant to the Tribunal's consideration.

1. Addressing the matters detailed in Reichert within the context of the present application, we say the following:
   • There have been significant changes to the application itself, most notably the reduction in the size of the top floor, and the change in the proposed land use composition by replacing the formerly proposed retail/office use with a medical centre. Other changes include the relocation of the waste storage area, the inclusion of an additional dwelling at the ground floor level and the modifications to the siting of the third level. In the main, these changes appear to arise from a genuine attempt by the Applicant to respond to the issues raised in the Tribunal's earlier decision.
   • Other than the demolition of the former service station that historically occupied the review site, there have been no significant changes to the land and its surrounds.
   • There have been no changes to relevant planning policy.
   • To our knowledge, there are no changes in the interpretation of the facts or law relevant to the Tribunal's consideration.
2. Based on all the above, we have formed the view that this can be properly categorised as a repeat appeal and we accept the Applicant's submission that we should give great weight to the earlier decision. We will refer to that decision, as appropriate, in our reasons.

Is the proposed built form an acceptable response to the strategic and physical context of the review site?

1. The Council and the residents consider that a four-storey building is too high within this Neighbourhood Activity Centre context. In support of this submission, the Council referred us to the Strategic Framework Plan at Clause 21.01 that identifies a number of locations within the municipality where medium density housing and shop tops are encouraged, and where high scale development may be supported. The review site is not within one of these locations that are earmarked for more intensive development. It was argued that this activity centre has a 'village character' and a 'low scale feel' to the streetscape, and that the development by virtue of its height, scale and mass, would be out of context in this area.
2. In its earlier determination, the Tribunal acknowledged that the building must respond in a respectful and positive manner to its context. In doing so, it referred to the strategy at Clause 11.04-2 that encourages higher density housing in and around Neighbourhood Activity Centres that is designed to fit the context and enhances the character of the area. In considering the physical context of the site, the Tribunal noted the generally one to two storey built form that is constructed hard on the street edge, and the shopfronts that display a similar 'grain', with awnings provided over the footpath.
3. The building height was a matter that was addressed in some detail in the previous decision. The Tribunal stated:

[26] We have considered the proposal put to us by Mr Morris at the hearing that eroding the eastern end of the fourth level would serve to soften the transition to the existing adjacent buildings. However, we remain unconvinced. Our principal concern relates to the impact of the building when viewed as one approaches from the west where the residential context at Oak Grove is largely single storey. Our conclusion is that the upper levels of apartments 16-20 should be deleted, and the remainder of the fourth storey be set back to align with the southern side of the western stair enclosure. We note that this would serve not only to diminish the mass of the building overall, but that it could also improve the amenity of apartments 11-15 as it would allow an increase in the size of their northern balconies, and in the provision of natural light to the bedrooms.

[27] Although not a determinant in our conclusion, the substantial increase in setback of Level 3 from Waverley Road would also reduce the impact of the east wall when viewed travelling west from the east into something more in line with the blank walls already experienced in the centre.

[28] In regard to the timber clad stairwell, the central courtyard and the two storey townhouses, we consider their impact on Oak Grove to be acceptable. We find that the stairwell is an appropriate device to mark the change from a commercial to a residential area. The modest two storey massing of the townhouses, coupled with the landscaped setback and selected materials results in a comfortable contemporary 'fit' with the residential neighbourhood beyond.

[29] Council's policies also require that the proposal be compatible with the characteristics of the heritage place. As noted above, we found the Heritage Guidelines City of Stonnington 2002 unhelpful in our consideration of the proposed built form, as the statement of significance for the Waverley Road activity centre relates to its association with the suburban development which followed the introduction of the tram line. We can only conclude that it is the interaction with the somewhat disparate built form which has developed over time in the centre which should be considered in any heritage assessment.

[30] In our view, the proposed development, if amended to delete Apartments 16-20 as referred to earlier, would not be dominant and thus would not detract from any heritage values of the precinct, and certainly not from those articulated in the statement of significance. The street level fenestration reflects that of the adjoining shopfronts, there is a canopy over the footpath, and the oblique views of the (reduced) east and west side walls will not dominate the precinct, nor offend its heritage values.

1. We have not been persuaded that we should depart from these findings. There is no basis within either the physical or strategic context that would lead us to come to a conclusion that differs from that of the previous Tribunal. We observe that the Applicant has modified the design to align the fourth storey with the southern side of the stairwell enclosure. We consider that this has had the desired effect of diminishing the overall mass of the building, and reducing its visual impact when viewed from the east and west along Waverley Road. While we acknowledge the Council's and residents' desire to have the development exceed not more than three storeys, we consider that the design of this proposal, with a centralised fourth level, responds acceptably to not only the strategic context of this Neighbourhood Activity Centre, but also to the layout and use of adjoining and surrounding land.
2. The earlier version of the four-storey (principal) building had the following design features for its Waverley Road elevation:
   • The ground floor abutted the street
   • The level 1 façade was to be set back 1.25 metres, but with balconies and balcony roofs, timber balustrades and separating walls extending to the street
   • The level 2 façade was to be set back 3.01 metres with balconies extending to the street, as for the level below, but with no separating walls between balconies or balcony roofs above
   • Level 3 was also to be set back 3.01 metres, but with no projecting balconies.
3. The effect of this design was that, from the side view, the principal building had two elements - the lower two floors extending to Waverley Road, the upper two levels set back about 3 metres.
4. The current version of this proposal provides that, whilst the ground façade abuts the street, the first and second level facades are to be set back 1.6 metres, with balconies and wing-walls extending to the street and balustrades on the street alignment. However, there is to be no roof to the second level balconies so that the setback of its façade would be noticeable. The third level's southern elevation is to be set back about 9.5 metres from the street, so that it would align with the southern face of the stair/liftwell, adjoining Oak Grove; also, it would have no balconies protruding to the south.
5. Much of Council's case in respect to urban design issues was based on the fact that the second level is to be brought forward about 1.4 metres from the earlier proposal (i.e. from a 3.01 to 1.6 metre setback).
6. The fundamental difference between the southern elevations of the earlier and current proposal, and its implication for the eastern and western views of the building, is that the earlier proposal's 3.01 metre setback applied to the upper two levels while the current proposal has a 1.6 metre setback for the second level, with the third level set back 9.5 metres.
7. From the side view (only), we consider that a 3.01 metre, 1.6 metre or nil setback for the second level would amount to much the same thing, except that the last would provide a simpler, and therefore more desirable, profile and could be achieved by establishing wing-walls between balconies, giving the advantage of further privacy to each household.
8. From views across the street, the proposed second level with its 1.6 metre setback subtends the same viewing angle as does the well-set-back third level. If it were to be set back 3.01 metres instead, as Council sought, it would reveal the top half-metre of the third level. Again, we do not consider the difference to be of any significance, though the proposal before us has the advantage that the 1.6 metre setback actually just conceals the higher but more distant profile of the third level.
9. The residents objected to the stair/liftwell, which projects between two and five metres from different parts of the western elevation to abut the street. They argued that it would be too dramatic and should be set back. The previous Tribunal decision did not make any adverse comments on this aspect of the design and, having considered the matter and undertaken our own site inspection, we have come to a generally similar conclusion.
10. We have already concurred with the previous decision that a four-storey building is acceptable on this site (subject to the third level being set back further from Waverley Road). In this context, we find that the stair/liftwell, if appropriately detailed, would provide an acceptable differentiation between the commercial character of Waverley Road as it extends to the east and Oak Grove, to the north. We accept that this would be different to the visual break created by the previous service station, but we see no objection, in urban design terms, to a building element that marks a clear point of change from a commercial strip to a residential hinterland. Having said that, however, we find that the detailing of the stair/liftwell as proposed is not acceptable. The combination of glazing and timber screen offers the significant benefit of using a material for this important element that has domestic associations. The earlier proposal used timber and glazing on the western and southern elevations, with moulded concrete panels to the west, facing Oak Grove. The present proposal retains the timber and glazing treatment only to the western elevation. We consider that the northern and southern elevations of the stair/liftwell should be treated in a manner consistent with, and using materials and detailing found on the western elevation[6].
11. Later in these reasons, we have concluded that a sight triangle has to be provided to both sides of the driveway (there was only one such triangle in the original proposal, being on the northern side of the driveway). This change will require a modification to the siting and design of the stairwell structure, at least for the upper basement, ground level and level 1 (we find it to be acceptable for the stairwell at ground and level 1 to be located further to the south). In turn, this change may require some modifications to the architectural treatment of the western elevation of the stairwell, but we do not consider such variations to be beyond the capabilities of a competent architect.[7] This change may also involve a small reduction in the on-site parking but, we consider that the parking provision will continue to be adequate.

Will the development have an unacceptable impact on the amenity of the adjoining properties?

1. Again, the Tribunal addressed this issue in detail at paragraphs 33 -40 of its earlier decision. We observe that there has been no change to the layout or use of the adjoining properties that would necessitate us departing from the Tribunal's conclusions in respect of the potential amenity impacts of this development. Specifically:
   • The residential property to the north continues to have a driveway, carport and large outbuilding adjoining the review site.
   • The 3.695 metre setback of the proposed two-storey townhouses from the northern boundary, when coupled with the intervening outbuilding, will provide sufficient separation (approximately 7 metres) to ensure that these dwellings do not present unreasonable visual bulk to the neighbouring secluded private open space area to the north. This is also the case with respect to the outlook from the south facing living area window of this dwelling. In addition, once established, the proposed planting along the common boundary will screen and soften the appearance of the development as it is viewed from this adjoining property.
   • The proposed apartment building is set back in excess of 17 metres from the northern boundary. Further separation is provided by the outbuilding on that land. We consider this distance to be sufficient to avoid unreasonable visual bulk to the neighbouring yard to the north.
   • The conditions of the adjoining land to the east have not altered. It continues to be used as a shopfront with a dwelling behind, and has a rear courtyard as its private open space area. The proposed interface with this area remains as a two-storey boundary wall. There have been no changes in the circumstances of this adjoining land to warrant a departure from the previous findings. The courtyard will maintain an open aspect to the north and east and should not suffer an unreasonable sense of enclosure. While we were advised that there is a proposal for a multi-level development on the property to the east of this adjoining site, it is not something we can give weight to as that application, as far as we are aware, has not been approved.
   • The north-facing level 1 windows of the townhouses are proposed to be fitted with fixed obscured glazing to a height of 1.7 metres above finished floor level. This treatment will limit views in accordance with Standard B22 at Clause 55.04-6, and is acceptable. Overlooking of the neighbouring land will not result.
   • Although the north facing windows and balconies of the apartment building are not screened, their separation from the property to the north is well in excess of the 9.0 metre distance nominated in Standard B22. As compliance with the Standard is achieved, notwithstanding that Clause 55 does not apply to developments of four or more storeys[8], views from these elements will be limited to within the acceptable parameters. Similarly, the separation between the apartment building and the residential property on the opposite side of Oak Grove exceeds 9.0 metres and the development complies with the overlooking standard in this respect.

Is adequate car parking provided, and will the development result in unreasonable traffic impacts?

1. The car parking and traffic impacts of the proposal are a primary source of concern for the residents. Submissions referred to the width of Oak Grove which, when vehicles are parked on both sides of the street, is sufficient for only one vehicle to drive through. Submissions also stated that there are many young families in the street, and concerns were raised regarding the potential safety hazard that may arise from the proposed driveway and basement ramp in Oak Grove.
2. Using the rates specified at Clause 55.03-11[9] - which are widely accepted as being appropriate in such circumstances having regard to the activity centre context, availability of public transport and the relatively small size of the proposed dwellings - the residential component generates a requirement for 37 car spaces. The medical centre use attracts a requirement for 5 car spaces[10] as only one practitioner is proposed. Car parking for the convenience shop is to be provided to the satisfaction of the Responsible Authority, as its floor area does not exceed 80 square metres and no rate is therefore specified in Clause 52.06-5. The food and drink premises is referred to as a café in the application material. In response to questions from the Tribunal, the Applicant agreed that it is appropriately defined as a restaurant. Clause 52.06-5 nominates the car parking requirement for a restaurant use as 0.6 space per seat. In combination, the dwellings, medical centre and restaurant generate a requirement for 75 car spaces, with the car parking associated with the convenience shop being additional to this.
3. The development proposes the provision of 53 car spaces, which are to be allocated in the following manner:
   • One space for each dwelling
   • Two spaces for the medical centre
   • One space for the convenience shop
   • Three spaces for the restaurant
   • The remaining spaces are to be made available to residents who wish to purchase an additional car space.
4. The Applicant's evidence is that this will result in a demand for up to 14 on-street spaces during the lunchtime period and up to 24 on-street spaces during the evening peak. The evidence was that there is sufficient capacity in Waverley Road to accommodate this demand without relying on the residential streets.
5. The assessment of the car parking undertaken by the Council's Traffic Engineers concluded that the proposal has a surplus of nine car spaces. This conclusion was reached as a consequence of the recommended allocation being:
   • One space for each dwelling
   • Six spaces for residential visitors
   • Two spaces for the medical centre
   • Four spaces for the convenience shop
   • One space for the restaurant
6. The Traffic Engineers recommended that the remaining nine spaces be set aside for customers attending the restaurant (i.e. 10 spaces in total for the restaurant use).
7. We are not persuaded that the proposal to allocate further car spaces to dwellings is acceptable in this instance. The provision of one car space per dwelling and six visitor car spaces is satisfactory. It is desirable to minimise the demand for on-street parking associated with the non-residential uses. We consider that this is more likely to be achieved if the recommendations of the Council's Traffic Engineers are adopted, as they represent a more equitable car parking allocation when compared with the Applicant's proposal.
8. On the basis of the evidence and the conditional support of the Council's Traffic Engineers, we are persuaded that adequate capacity exists in Waverley Road to accommodate those patient and customer vehicles that can't be accommodated in the basement. That said, we accept the submissions of the residents that patients, customers and residential visitors will seek to park as close as possible to the site and, if parking is not available in Waverley Road, will enter the residential side streets in search of a car space. This outcome is not unusual within an activity centre context.
9. We observe that most, if not all, of the dwellings in Oak Grove are provided with off-street parking. The additional demand that may be placed on the parking in this street should not, therefore, have an unreasonable impact on parking for the residents. In the event that parking does become problematic, not solely as a consequence of this development but of the ongoing consolidation and development of the Neighbourhood Activity Centre, the introduction of appropriate parking restrictions can be investigated by the Council.
10. Residents argued that the traffic analysis had severely underestimated the extent to which traffic from the proposed development would divert to the north along Oak Grove in order to avoid the very difficult right-turn movement into Waverley Road. Further, they submitted, this additional volume of traffic would be inconvenient at best, dangerous at worst.
11. The evidence is that the proposal will generate 28 vehicle movements in each peak hour, which averages out to one additional vehicle movement every two minutes. The evidence was also that this level of traffic is within the capacity of Oak Grove and that the Waverley Road/Oak Grove intersection will continue to perform acceptably during the peak hours. This is consistent with the views of the Council's Traffic Engineers, who do not expect the development to adversely impact existing traffic conditions in the surrounding area. This is not to say that there will not be a very obvious change in the amount of traffic within Oak Grove. There clearly will be, particularly at its southern end, although a proportion of drivers will elect to proceed north. However, even under a worst-case situation, the additional traffic would fall well within acceptable parameters for this type of street.
12. There was some discussion at the hearing of the potential pedestrian/ vehicular conflict that may arise at the point where the basement driveway/ramp intersects with the footpath. The discussions focussed on the ability of vehicles to see pedestrians as they exit the basement, and vice versa, with residents expressing concerns about the safety of children who, they submitted, frequent this footpath.
13. The relevant Australian Standard requires the provision of sight triangles on either side of the accessway to achieve the necessary visibility. The specified sight triangles measure 2.5 metres by 2.0 metres.
14. In this instance, a sight triangle of 500mm by 500mm is proposed on the southern side of the accessway. The location of the stairwell impedes views to the south beyond this. We are not persuaded that this represents an acceptable outcome. There is no site constraint or contextual consideration that justifies non-compliance with the Australian Standard in the circumstances of this Application. We consider that there is a risk for pedestrian/vehicular conflict and that the use of a convex mirror does not satisfactorily address this in the case of the type of pedestrian traffic likely to be experienced at this residential junction. We can see no reason why the sight triangle should not be provided. A condition to this effect has been included in the Order.
15. We can also see no reason why the ramp gradients should not comply with the Australian Standard. The Applicant's evidence is that compliance can be achieved without compromising the design of the basement, or the number of car spaces that can be accommodated. We will require this change to be made to further reduce any potential pedestrian/vehicular conflict.

Will occupants of the development be provided with an acceptable level of amenity?

1. The balconies have been increased in size to 8 square metres, with a minimum dimension of 1.6 metres, in accordance with comments contained within the earlier Tribunal decision. The waste storage area has been internalised to avoid the amenity impacts that the Tribunal identified as potentially arising from the previous proposal to situate bins within the central area between the townhouses and the apartment building.
2. Subject to modifications to increase the penetration of light into selected dwellings, we consider that the development will provide adequate daylight to its habitable rooms. The exception to this is the proposed ground floor dwelling of the apartment building. The windows and secluded private open space area of this dwelling will be substantially 'overhung' by the upper levels, severely restricting sunlight and daylight penetration to the windows and courtyard. This is an unacceptable arrangement.
3. The Applicant offered to modify this part of the proposal to convert this proposed dwelling into the ground floor area of two, two-storey dwellings (i.e. one two-bedroom and two one-bedroom dwellings, all single level, would be replaced by two two-storey, two-bedroom dwellings). What this means is that the living areas, and adjoining balcony, would be at level 1, with the bedrooms below.
4. We find that the internal amenity of the proposed ground floor, single-level dwelling would be unacceptable. The window to the principal living room, a room that is to be about 6 metres deep, is to be set back about 4.6 metres from the overhanging balcony, with a high garden wall a further one metre beyond that. As an indication only, this would not seem to comply with Standard B27 at Clause 55.05-3 Daylight to New Windows (and, while Clause 55 is not applicable in this case, Standard B27 nevertheless provides a useful test of amenity). Further, the courtyard space would be almost entirely overhung by the levels above and largely be perpetually in shadow.
5. The modified layout still raises issues with daylight to one of the proposed ground floor bedrooms. The overhang to one of the bedrooms is the same and likewise as deep as for the living room referred to above. We are not persuaded that it will allow sufficient daylight into this room. We think that, given its poor amenity, this is room should be used for non-habitable purposes. We will include a condition that requires its conversion into a storage area for the development.
6. The proposal before us also varied from the earlier proposal in that the width of the 'courtyard' between the townhouses and the apartment building has been reduced, from 5.18 to 5.03 metres at ground level and from 3.93 to 3.43 metres above that. Although there was some discussion at the hearing as to how this space should be described and how it could, or should, be used we see it as only providing, in any case, a potentially pleasant, landscaped entryway to the townhouses. We consider that the proposed reduction in width (the result of increasing the size of balconies in the apartment building) would not affect this space's landscaping potential or otherwise its suitability for this purpose.
7. It appears that the east and west facing upper level bedroom windows of the townhouses will allow inter-viewing between the dwellings. A condition requiring the provision of screening to address this issue has been included.

1. The draft conditions provided by the Council included restrictions on the hours of operation for the restaurant and the convenience shop. These are opposed by the Applicant.
2. We consider that, given the location of the restaurant use at the edge of the activity centre, within a residential zone that extends to the west and north, and proximity to residences, there are sound planning reasons to restrict the hours of operation of this use. It has the potential to impact adversely on the amenity of the nearby dwellings, principally by noise. This is especially so having regard to the provision of an external dining area on the Oak Grove sideage, and the inclusion of glazed folding doors in the western elevation that open up the restaurant to this street. We have concluded that at reasonable outcome would be achieved in this instance by limiting the hours of operation to 7.30am - 6.00pm, and will include a condition to this effect.
3. We are not persuaded that a similar restriction is required for the convenience shop. It does not interface directly with the residential area, and the number of customers seeking to use the basement is likely to be limited. We say this because the nature of a convenience shop is such that customers will only stop for a short period and are therefore more likely to seek on-street parking in Waverley Road rather than enter the basement in search of a car space. We think this use is sufficiently removed from the residential area to avoid any unreasonable amenity impacts arising from its operation.

1. The issue of waste management, that is the storage and collection of waste of recyclables, can be addressed by a requirement for a Waste Management Plan that will need to be to the Council's satisfaction. Such a Plan will address how collection will be undertaken, by whom, and during which days/hours.

1. All dwellings have access to natural ventilation. The means and adequacy of mechanical ventilation to bathrooms and the like is a matter that is addressed at the Building Approval stage.

1. The proposal does not include the provision of a loading bay on the land. We consider that, given the small nature of the proposed tenancies, it is unlikely that deliveries to the site will necessitate the use of large vehicles. We further consider that there is sufficient scope to have deliveries undertaken kerbside in Waverley Road. In this respect, we note that the proposal includes a reinstatement of two existing vehicular crossovers to this road, increasing available kerbside space.

1. For these reasons, subject to the modifications detailed in the conditions, we consider that the proposal will represent an acceptable planning outcome when assessed against the relevant planning policies and provisions of the Stonnington Planning Scheme. While the development will represent a significant change when compared to what existed previously, it is a change that is contemplated by the Planning Scheme, given the site's location within an identified Neighbourhood Activity Centre and the policies that encourage higher densities in such areas. We will therefore set aside the decision of the Responsible Authority and grant a permit.

• The construction of a four-storey building, plus basements;
• The construction of five (5) two-storey dwellings;
• Use of the land for dwellings, convenience shop and restaurant; and
• Alteration of access to a road in a Road Zone Category 1

• A reduction of the car parking requirements associated with the use of the land for dwellings, medical centre and restaurant.
• A waiver of the loading bay requirements.

1. Before the commencement of the use and development, three (3) copies of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the plans identified as TP00 Rev F Title Page and Location Plan; TP01 Rev E Site + Neighbourhood Streetscape; TP02 Rev E Site + Neighbourhood Streetscape; TP03 Rev F Design Response; TP04 Rev E Shadow Diagrams September 22nd; TP05 Rev E Basement 2 Floorplan; TP06 Rev E Basement 1 Floorplan; TP07 Rev G Ground Floor Plan; TP08 Rev E Level 1 Floorplan; TP09 Rev E Level 2 Floor Plan; TP10 Rev E Level 3 Floor Plan; TP11 Rev E Roof Plan; TP12 Rev F Elevations Page 1; TP13 Rev F Elevations Page 2; TP14 Rev F Elevations Page 3; TP15 Rev F Elevations Page 4; and TP16 Rev D Carpark Section; prepared by Daryl Pelchen Architect but modified to show:
   • (a) Solid or opaque balcony screens to all balconies.
   • (b) A schedule of construction materials, external finishes and colours to the satisfaction of the Responsible Authority.
   • (c) The basement to be constructed within the Title Boundary.
   • (d) The dimensions and layout of parking bays, parking floor gradients, parking module gradients and column locations to be in accordance with Australian Standards and/or to the satisfaction of the Responsible Authority.
   • (e) A longitudinal section from the far side of the footpath to the parking area showing all proposed grades, all lengths of grades and all levels to accord with Australian Standards to the satisfaction of the Responsible Authority.
   • (f) The headroom provided at the entry point when the door is open to be 2.2 metres to accord with the relevant Australian Standards.
   • (g) The sight distance at the property boundary for exiting motorists to accord with the relevant Australian Standard. This alteration must not result in a reduced southern setback (ie the setback to Waverley Road) for that part of the stair/liftwell above level 1.
   • (h) The floor levels for the restaurant, medical centre and convenience shop to match the footpath levels on Waverley Road.
   • (i) The 'café' labelled as a 'restaurant, and the 'medical offices' labelled as 'medical centre'.
   • (j) Apartment 1 converted into a storage area for the development.
   • (k) Deletion of the fence that partially encloses the front setback area to Oak Grove and the erection of a fence that extends between Townhouse 1 and the northern boundary to create a courtyard space similar to those of the remaining townhouses.
   • (l) An architectural treatment of the north and south sides of the stair/liftwell structure that is consistent with the architectural treatment of this structure's west elevation.
   • (m) Provision of screening to prevent views between neighbouring east and west-facing upper level bedroom windows of the townhouses.
   • (n) Provision of a window (or windows) in the west elevation of Apartment 11.
   • (o) Provision of windows to the south elevation of Level 3.
   • (p) Skylights above the hallway of Apartments 22-26.
   • (q) Skylights above the hallway and bedroom of Apartments 17-21.
   • (r) A notation on each of the floor plans stating that a horizontal glazed insert will be provided in the wall which separates the bedroom from the kitchen/living area (above the robes and kitchen cupboards).
   • (s) A plan/schedule detailing the allocation of car spaces (refer to Condition No. 12 of this Permit).
   • (t) A Landscape Plan in accordance with Condition No. 6 of this Permit;
   • (u) Any modifications required to achieve compliance with the approved Tree Management Plan (refer to Condition No. 8 of this Permit);
   • (v) Any modifications required to achieve compliance with the approved Waste Management Plan (refer to Condition No. 10 of this Permit);
   • (w) Any modifications required to achieve compliance with the approved Parking Management Plan (refer to Condition No. 12 of this Permit)
   • (x) Any modifications reasonably required as a consequence of compliance with Conditions 1(g) and 1(j).
2. The use and development must be in accordance with the endorsed plans unless otherwise agreed in writing by the Responsible Authority.
3. Not more than 55 restaurant seats must be provided at all times the use of the restaurant is in operation.
4. The restaurant must operate only between the hours of 7.30am to 6.00pm Monday to Sunday.
5. The medical centre use must operate with a maximum of one medical practitioner on the premises at any one time.
6. Before the development starts, a Landscape Plan prepared by a landscape architect or suitably qualified or experienced landscape designer, must be submitted to, and approved by, the Responsible Authority. When approved, the Landscape Plan will be endorsed and will then form part of the Permit. The Landscape Plan must be drawn to scale with dimensions and three copies must be provided. The Landscape Plan must show:
   • (a) Buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary;
   • (b) Details of surface finishes of pathways and driveways;
   • (c) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant;
   • (d) Landscaping and planting within all areas of the site;
   • (e) The extent of any cut, fill, embankments or retaining walls associated with the landscape treatment of the site;
   • (f) Details of all proposed hard surface materials, including pathways, patio or decked areas.
7. Before the development is occupied, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority. Landscaping must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
8. Before the development starts a Tree Management Plan prepared by a suitably qualified arborist must be submitted to, and approved by, the Responsible Authority. When approved, the Tree Management Plan will be endorsed and will then form part of this permit. All works must be done in accordance with the approved Tree Management Plan to the satisfaction of the Responsible Authority.

The Tree Management Plan must detail measures to protect and ensure the ongoing viability of the Quercus cerris (Turkey Oak) street trees located to adjacent to the western boundary of the site.

Without limiting the generality of the Tree Management Plan it must have at least three sections as follows:

(a) Pre-construction: details to include a tree protection zone, height barrier around the tree protection zone, amount and type of mulch to be placed above the tree protection zone and method of cutting any roots or branches which extend beyond the tree protection zone.

(b) During-construction: details to include watering regime during construction and method of protection of exposed roots.

(c) Post-construction: details to include watering regime and time of final inspection when barrier can be removed and protection works and regime can cease.

Pre-construction works and any root cutting must be inspected and approved by the Responsible Authority. Removal of protection works and cessation of the Tree Management Plan must be authorised in writing, by the Responsible Authority.

1. No vehicular or pedestrian access, trenching or soil excavation must occur within the Tree Protection Zone without the written consent of the Responsible Authority. No storage or dumping of tools, equipment or waste must occur within the Tree Protection Zone.
2. Before the development starts, a Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan must be generally in accordance with the Waste Management Plan prepared by Leigh Design Pty Ltd and dated 2 May 2011, but modified to include:
   • (a) Dimensions of waste areas;
   • (b) The number of bins to be provided for each dwelling and tenancy;
   • (c) Method of waste and recyclables collection;
   • (d) Hours/days of waste and recyclables collection.
   • (e) Method of presentation of bins for waste collection;
   • (f) Strategies for how the generation of waste and recyclables from the development will be minimised.

When approved, the Waste Management Plan will be endorsed and will then form part of the permit. The collection of wastes and recyclables from the development must be in accordance with the approved Waste Management Plan, to the satisfaction of the Responsible Authority.

1. Adequate provision must be made for the storage and collection of wastes and recyclables within the site prior to the occupation of the building, to the satisfaction of the Responsible Authority. This area must be appropriately graded, drained and screened from public view to the satisfaction of the Responsible Authority.
2. Before the development starts, a Parking Management Plan must be submitted to, and approved by, the Responsible Authority. The Parking Management Plan must:
   • (a) Allocate car spaces to the individual tenancies/dwellings. This must show a minimum of one car space for each dwelling, six spaces for residential visitors, two spaces for the medical centre, four spaces for the convenience store and the balance of the car spaces for the restaurant;
   • (b) Designate parking spaces to the individual tenancies/dwellings. The commercial tenancies must be allocated in basement level 1 and be separated from the residential car parking spaces;
   • (c) Address the management of the visitor parking spaces (including a requirement that the visitor parking spaces be within the common property associated with the residential component of the development);
   • (d) Require that access to the car park is available to customers/patrons at all times during which the non-residential uses are operating.
   • (e) Detail the signing and line marking of parking spaces; and
   • (f) Detail how the proposed car spaces will be secured for use.

When approved, the Parking Management Plan will be endorsed and will then form part of the permit. The approved Parking Management Plan must be complied with at all times to the satisfaction of the Responsible Authority.

1. Before the development starts, a Construction Management Plan must be submitted to, and approved in writing by, the Responsible Authority. The Construction Management Plan must include, but not be limited to:
   • (a) days and hours of construction activity;
     • (b) traffic movement of all workers' vehicles and construction vehicles;
     • (c) works timetable;
     • (d) any impacts upon adjacent roads, footpaths and the carriageway easement. Provision must be made for adequate movement and circulation of vehicles and pedestrians adjacent to the land during the construction phase;
     • (e) access routes for construction vehicles;
     • (f) proposed parking and standing locations for construction vehicles and construction workers vehicles;
     • (g) temporary fencing works;
     • (h) number of workers expected to work on the site at any time;
     • (i) methods for limiting escape of dust and litter from the land;
     • (j) a communication strategy for advising the Responsible Authority and residents of key stages/events (including their timing and duration) in the construction program of the development;
     • (k) a liaison officer for contact by residents and the Responsible Authority in the event of relevant queries or problems experienced.
2. The development must be undertaken in accordance with the approved Construction Management Plan to the satisfaction of the Responsible Authority.
3. A report for the legal point of discharge must be obtained from Council prior to a building permit being issued. A drainage design for the development must be prepared by a suitably qualified Engineer in compliance with the above report prior to the commencement of works and the drainage must be completed in accordance with that design, to the satisfaction of the Responsible Authority.
4. Any poles, service pits or other structures on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.
5. All utility services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority by completion of the development.
6. The level of the footpaths and/or laneways must not be lowered or altered in any way to facilitate access to the site.
7. Before the development is occupied, any existing vehicular crossing made redundant by the building and works must be broken out and re-instated as standard footpath and kerb and channel at the permit holders cost to the approval and satisfaction of the Responsible Authority.
8. The crossover must be constructed to Council's Standard Vehicle Crossover Guidelines unless otherwise approved by the Responsible Authority.
9. Before the construction or carrying out of buildings and works either:
   • (a) A Certificate of Environmental Audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970, or
   • (b) An environmental auditor appointed under the Environment Protection Act 1970 must make a Statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for the sensitive use.

Before the development is occupied, all the conditions of the Statement of Environmental Audit, other than those of an ongoing nature, must be complied with, to the satisfaction of the Responsible Authority. Written confirmation of compliance must be provided by a suitably qualified environmental professional or other suitable person acceptable to the Responsible Authority. In addition, sign-off must be in accordance with any requirements in the Statement conditions regarding verification of works.

At the direction of the Responsible Authority, before the development is occupied, the owner must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987 to:

• ensure compliance with any conditions of the Statement of Environmental Audit that are of an on-going nature; and
• facilitate notification of future owners and occupiers of the land of the conditions attached to the Statement of Environmental Audit.

Before the development is occupied, the owner must procure that the Section 173 Agreement is registered on the Title to the land. The owner must pay the costs of the preparation and execution of the Agreement and entry of the memorandum on Title, including any statutory fees.

1. Before the development is occupied, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:
   • (a) Constructed to the satisfaction of the Responsible Authority;
   • (b) Properly formed to such levels that they can be used in accordance with the plans;
   • (c) Surfaced with an all weather sealcoat to the satisfaction of the Responsible Authority;
   • (d) Drained and maintained to the satisfaction of the Responsible Authority;
   • (e) Line marked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority.

Parking areas and access lanes must be kept available for these purposes at all times.

1. Remote control of the basement car park security grille must be available from all dwellings within the development to facilitate access to the visitor car parking spaces for visitors to the dwellings. An intercom system enabling visitors to identify themselves to residents of the development must be provided, with an intercom station/facility being provided in a location proximate to the entry to the car park to the satisfaction of the Responsible Authority.
2. Before the development is occupied, access for persons with disabilities must be provided in compliance with all relevant Australian Standards and the Disability Discrimination Act 1992 and such access to the publicly accessible parts of the building must be maintained at all times the building is occupied or in use.
3. Before the development is occupied, the walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.
4. Before the development is occupied, privacy screens designed to limit overlooking (including obscured glazing) as required in accordance with the endorsed plans must be installed. The screening must be maintained to the satisfaction of the Responsible Authority.
5. All plant and equipment (including air-conditioning units) must be located or screened so as not to be visible froth any of the surrounding footpaths and adjoining properties (including from above) and must be baffled so as to minimise the emission of unreasonable noise to the environment in accordance with Section 48A of the Environment Protection Act 1970 to the satisfaction of the Responsible Authority.
6. Any noise emissions from any air conditioning units or other mechanical equipment must comply with the Environment Protection (Residential Noise) Regulations 1997 to the satisfaction of the Responsible Authority.
7. The amenity of the area must not be adversely affected by the use or development as a result of the:

(a) transport of materials, goods or commodities to or from the land; and/or

(b) appearance of any building, works, stored goods or materials; and/or

(c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; and/or

in any other way, to the satisfaction of the Responsible Authority.

1. The existing vehicle crossovers on Waverley Road must be removed and the footpath, naturestrip and kerbing reinstated to the satisfaction of the Responsible Authority.
2. This permit will expire if one of the following circumstances applies:
   • (a) The development is not started within two years of the date of this permit.
   • (b) The development is not completed within four years of the date of this permit.
   • (c) The use is not commenced within five years of the date of this permit.
   • (d) The use is discontinued for a period of two years or more.

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] We have considered all submissions presented by the parties although we do not recite all of the contents in these reasons.

[2] See Pearl Diamond Pty Ltd v Stonnington CC [2010] VCAT 1796.

[3] Refer to Daryl Pelchen Architects Pty Ltd v Stonnington CC & Ors [2010] VCAT 1670

[6] We accept that there may be technical reasons why it may not be feasible to repeat the western elevation treatment in toto on the northern elevation.

[7] It may, for example, be appropriate to introduce open glazing to one or more stairwell elevations at ground level.

[8] A design suggestion of the Guidelines for Higher Density Residential Development is that existing dwellings should be protected from overlooking in accordance with the requirements of Clause 55 of Planning Schemes.

[9] One car space for each one and two-bedroom dwelling; two car spaces for each three-bedroom dwelling and one visitor car space per five dwellings.

[10] Pursuant to Clause 52.06-5 of the Planning Scheme.