1. In application P2095/2017, the decision of the responsible authority is affirmed.
2. No changes are made to the conditions in planning permit PP16/00620 issued by the responsible authority on 21 August 2017.

Construction of a mixed-use building plus stacker parking for six vehicles. One shop (69.2m2) is proposed on the ground floor with four levels of apartments above (five dwellings). Vehicle access will be from a rear lane. The building is proposed at five storeys with the front portion of the existing building retained and renovated.

Application under Section 80 of the Planning and Environment Act 1987 - to review Conditions 1(c) and 7.

Commercial 1 Zone.[1] Design and Development Overlay Schedule 12 [DDO12] and Precinct 3 [DDO12-3]. Heritage Overlay HO494. Parking Overlay Schedule 1. Burwood Road is in a Road Zone Category 1.

Clauses 9, 10, 11, 12, 15, 16, 17, 18, 19, 21, 22.03, 34.01, 43.01, 43.02, 52.06, 52.29, 55 and 65.

Clauses 34.01, 36.04 and 43.02 - to construct a building and construct and carry out works. Clause 43.01 - to demolish a building and to construct a building and carry out works. Clause 52.06-3 - to reduce parking. Clause 52.07 - waive the loading bay requirements.

The subject land is on the north side of Burwood Road. It is approximately 260m2 and extends through to the south side of Elgin Place. It contains a contributory heritage building, comprising a two-storey Victorian commercial premise with residential floor space above. The land falls to the north, by around 2 metres.

1. The Boroondara City Council has granted a permit for a mixed-use development on the subject land. The land fronts Burwood Road, within the West Hawthorn Neighbourhood Activity Centre. The permit application was for a five storey building. The Council granted this permit for a four storey building subject to conditions, two of which are in dispute:
   • Condition 1(c) that requires one floor of the building to be deleted, so as become a four storey building; and
   • Condition 7 that re-allocates surplus car spaces consequent upon deletion of the top floor.
2. I must decide whether to retain these conditions on the permit.
3. The following explains why I have determined to affirm the Council's decision. My decision is made in the context of the relevant provisions and policies within the Boroondara Planning Scheme [scheme] having considered the submissions and all other material presented by the parties.

1. Both parties address the planning context that establishes the framework for my consideration of the disputed conditions, and particularly the most contentious issue which relates to the building's scale and height.
2. The subject land is zoned Commercial 1, within the West Hawthorn Neighbourhood Activity Centre, where policy supports a mixed-use development in the form proposed. The West Hawthorn Neighbourhood Activity Centre is in a network of activity centres.[4] This is part of the strategy set out in Plan Melbourne 2017-2050, and the State and local Planning Policy Frameworks, to direct growth to appropriate and well-serviced locations.[5] There is an expectation of intensification, as reflected in the purpose of the Commercial 1 Zone.
3. Two Overlays are most relevant in this case to the future growth and development of the Activity Centre - Heritage Overlay HO494 and DDO12. I refer to these below. They provide specific direction for development in:
   • The West Hawthorn Neighbourhood Activity Centre in urban design and built form terms; and
   • The West Hawthorn Village Precinct in heritage terms.
4. State and local policies are relevant to assessments under Clauses 43.01 and 43.02 which I have fully considered but do not recite.[6] It is fair to say that the proposal's response to DDO12 is at the core of the dispute.

1. The Council considers the building should be lowered by one level, by removing the top floor. It submits the height of the building is unacceptable. Condition 1(c) is necessary to ensure a built form outcome in line with the objectives of DDO12-3 and improve the relationship with surrounding buildings. Mr Song emphasises that DDO12 is designed to achieve specific design and built form outcomes. The decision-maker must give effect to it and ought to avoid decisions which water-it-down and in effect render the specification of a preferred height meaningless.
2. The Council submits there are "no special circumstances to warrant a departure from the preferred maximum height". Moreover, there is some sensitivity to this site given its exposure to Burwood Road, Elgin Place, and Elgin Street where the development will be clearly visible at five storeys. This height is not compatible with the existing scale and character of buildings in the area or the vision for the area. The outcome is not in accordance with the design objectives and particularly incremental change. Nor does the proposal respect and enhance the character of the precinct or maintain a pedestrian scale in Elgin Place.
3. The Council raises no concern about overshadowing in the public realm (south side of Burwood Road), views to nominated significant view lines or heritage issues. It makes reference to the proposed development being seen from residentially-zoned land but its primary concern is about visual bulk particularly as appreciated in Elgin Street, Burwood Road to the south-west, and Elgin Place. It is also concerned that the proposal departs from existing approved development at four storeys or around 11 metres at Nos. 93 and 95/95A Burwood Road, the former of which has been constructed.
4. Conversely, the applicant submits the proposed building sits comfortably with, and assists to achieve, the design objectives and vision for the West Hawthorn Neighbourhood Activity Centre contained in DDO12. While accepting the proposal is higher than existing buildings and the discretionary height limit, when assessed against local policy and DDO12, the applicant submits the outcome is acceptable. Mr Martyn submits change is expected in this location, the loss of one dwelling is an unjustifiable disbenefit, and the Council's urban design referral generally supported the form. Where visible, the building is acceptable and will add a layer of interest to the character of the area. Its scale aligns with that of the five storey form to the north of Elgin Place, as a unifying element.
5. Mr Song acknowledges the urban design referral. The assessment by the Council's planning officer refers to contextual differences including the large size of the development at No. 108 Power Street and the positioning of the five story section where it has less visual impact on the public realm. Moreover, Mr Song notes this building pre-dates DDO12 and the widening of Elgin Place associated with it was a notable public benefit.

1. The subject land is part of the Victorian commercial strip with many two storey terrace buildings. The land is close to Elgin Street, with the topography falling. It abuts a single storey premises to its west. A two storey hotel is at the corner of Burwood Road and Elgin Street and also abuts Elgin Place. The hotel has an upper level with glazed external deck.
2. The subject land and these other two properties are directly opposite No. 1 Elgin Place which has a three to four storey form. The five storey (19.3 metres high/RL40.47 metres AHD[7]) component of No. 108 Power Street covers much of the balance of the land abutting the north side of Elgin Place, as evident in the image below[8]:

1. This image shows No. 108 Power Street stepping down to its Power Street frontage. It also shows a four storey building (11.83 metre high/RL34.69 metres AHD) added at the rear of No. 93 Burwood Road. A permit has issued for a four storey (11.25 metre high) development at the rear of Nos. 95/95A Burwood Road, which is not built. A permit issued in 2012/13 for a four storey building to the rear of No. 85-87 Burwood Road has expired.
2. Elgin Street is a north-south street, bridging the railway line, and then sloping into a residential area.

1. The West Hawthorn Neighbourhood Activity Centre extends along the Burwood Road corridor to the east as well as to the west as shown in the extract from DDO12 below:

1. The subject land is in Precinct DDO12-3. In terms of overall height[9], DDO12 provides the following:
   • DDO12-1 - mandatory 16 metres;
   • DDO12-3 - discretionary 11 metres;
   • DDO12-4A - mandatory 18 metres;
   • DDO12-4B - mandatory 18 metres;
   • DDO12-5 - discretionary 9 metres;
   • DDO12-6 - mandatory 16 metres.
2. The proposed development has a height up to 15.86 metres[10], varying with the fall of the land and setbacks of the top floor to Elgin Place. Based on information provided by the applicant, the proposal at five storeys is:
   • 690mm higher than the four storey form at No. 1 Elgin Place;
   • 2.74 metres higher than No. 93 Burwood Road; and
   • 3.14 metres lower than the five storey form of No. 108 Power Street.
3. The parties agree that the overall height in DDO12-3 is discretionary. They also agree that in considering a permit application where the overall height is exceeded, as required by Clause 2.0 of DDO12, it is necessary to assess whether the application "demonstrates that the proposed development will continue to meet the relevant design objectives".

1. I have recited the Council's point that there are "no special circumstances to warrant a departure from the preferred maximum height". This is not a specific test in DDO12 and there is not a list of criteria in DDO12 to assist to decide on an application above the discretionary preferred height[11]. The broader aim, as expressed through Clause 15, is to make a positive contribution to local urban character. Multiple design objectives in DDO12 are the basis for such a judgment to be made.
2. DDO12 design objectives that are most relevant to the arguments advanced are:
   • To implement the West Hawthorn Urban Design Framework (2006).
   • To encourage built form that does not cause unreasonable amenity impacts on adjacent residential areas and minimises the negative impacts of overlooking, overshadowing, noise and visual bulk.
3. Specific design objectives for DDO12-3 West Hawthorn Village include:
   • To encourage built form outcomes that are consistent with the precinct's ability to accommodate incremental change.
   • To ensure built form and landscape outcomes respect and enhance the character of the precinct.
   • To maintain streetscape rhythm.
   • To maintain the current human / pedestrian friendly scale of development.
   • To protect existing residential areas from unreasonable loss of amenity.
   • To ensure building heights and setbacks maintain reasonable amenity to existing residential properties.
4. "General Requirements" in DDO12-3 are:
   • Buildings should minimise the impact on the amenity of residentially zoned land having regard to matters such as overlooking, overshadowing or visual bulk.
   • Facades, side and rear walls that are visible from the public realm or from residential areas should be articulated to a high standard and consideration should be given to the proposed fenestration.
5. The West Hawthorn Urban Design Framework (2006) is the basis of DDO12 and it is here where terms such as "incremental change" appear to derive. There are apparent inconsistencies between the Urban Design Framework document and the provisions of the scheme, such as with respect to some building heights. The provisions of DDO12 as contained within the scheme prevail.

1. A clear strategic position and built form outcome are evident in DDO12. Precinct 3 will see a lower degree of change when compared most other DDO12 precincts. The discretionary height and site differences mean that there will not necessarily be a uniform height. That there are mandatory heights in areas targeted for more significant or substantial change in this Activity Centre is a relevant matter in understanding how the whole of the area will evolve - it creates a high level of certainty for much of the Activity Centre.
2. DDO12 was approved by the Minister and introduced into the scheme nearly five years ago through Amendment C167. I appreciate that the broader planning context continues to evolve post-DDO12's introduction into the scheme including very rapid metropolitan growth that must be accommodated. However, it is not my role to suggest that the provisions require change or to impose a different vision for the West Hawthorn Village, even if that could be argued in urban design terms.
3. Moreover, I am mindful of the principles of orderly planning that seek to avoid an outcome that emerges with the cumulative effect of incremental decisions. The Tribunal frequently states that decisions about individual planning permit applications approving variations from the preferred height can lead to a cumulative undermining of the overlay objectives. This can provide uncertainty about the strategic directions and design principles sought to be implemented.[12]
4. That the Framework dates from 2006, which Mr Martyn describes as "somewhat outdated" is not influential in my decision. It cannot be assumed that simply because a document is 12 years old that it is outdated. It is through the consistent application of controls such as these that the identified vision can be achieved. Regular review[13] is appropriate to take account of changed strategic and other circumstances.
5. While not referred to by the parties, it is also noteworthy that Plan Melbourne 2017-2050 includes policy to provide "certainty about the scale of growth in the suburbs", that " Local government and the community also need confidence that the built form objectives they sign up to will be adhered to" and:[14]

In areas where greater change is expected - such as urban renewal precincts and mixed-use and activity centre areas - requirements to adhere to preferred heights will also be strengthened. This will be achieved by improving the way height in strategic locations is managed and decisions are made.

1. As often said, the development capacity of land may be more than the built form controls mandate or prefer. Here, DDO12 strikes a balance between growth aspirations and a design outcome. It is not my role to say if the balance is right. I agree with Mr Song that it is important to avoid decisions that render the specification of a preferred height meaningless or undermine the vision.[15] This is a not a situation where there are multiple and/or significant exceedances of a preferred height in the Village. The Framework took account of the five storey form at No. 108 Power Street.

1. It is self-evident from the above that I give DDO12 great weight, as I consider is the appropriate application of the scheme in this case. Indeed, as I have alluded to, there may be urban design arguments that can support the proposal at five storeys as a direct response to the forms on the north side of Elgin Place and at some distance from residentially-zoned land. But, foremost in my mind is whether the proposal at five storeys, as designed, is an acceptable response to the design objectives for DDO12 and DDO12-3.
2. The key matter in dispute relates to visual bulk as the Council does not contend other design objectives are not achieved. This is in the context of the building's presence in views from within Elgin Place (which I consider is the least sensitive public interface), Elgin Street, and Burwood Road to the south-west. Elgin Place is least sensitive because it is a laneway and provides a service role, even though there are several direct entry points and some enhancements have occurred. It is also least sensitive because the interface is with three, four and five storey forms on the north side. Views from Elgin Street and Burwood Road, that are much wider than possible within Elgin Place, are from public spaces within DDO12 where the development is seen over the smaller structures to its west. These views are from lower points in the landform. I appreciate that the side elevations of the proposed building provide visual interest and foreground development may occur on the land to the west. But it is the scale of the walls and form that are atypical and are out-of-step with the vision for this part of DDO12.
3. Images forming part of the application material make this apparent and show how the proposal, at five storeys, is of a scale that is appreciably greater than the lower forms to the west and north (at No. 1 Elgin Place). The fifth storey wall may also give rise to an expectation that the adjacent land to the west may occur to a similar height. Images tendered by Mr Martyn at the hearing indicate to me that the ability to provide increased setbacks at the top (fifth) floor from Elgin Place will not make a change that mitigates the impact of the rising form at this western end of the Village.
4. No. 108 Power Street is a strong presence and influential in the applicant's arguments. The Urban Design Framework and DDO12 acknowledge larger sites with more significant development capacities, contrasting with the smaller and narrower lots along the commercial frontage.

1. A five storey form can achieve the sightline from the opposite side of Burwood Road referred to in the Urban Design Framework[16] but the building's scale and massing would be apparent in the Elgin Street and Burwood Road settings. On one view, the increment above the existing forms at three to five storeys is not significant in general urban design terms. However, when weight is given to DDO12, as it appropriate, I find the outcome does not fit with the defined vision and objectives. The proposal does not respect and enhance the character of the precinct.
2. Further, the proposed five storey height at 15.86 metres is close to the 16 metre mandatory heights applied in precincts earmarked for a higher degree of change than the West Hawthorn Village and, even if one floor is removed, the building's height would be above the 11 metre preferred maximum.
3. The loss of one dwelling is a factor in the wider balancing of competing objectives under Clause 10.04 but does not persuade me to depart from the above conclusion.

1. HO494 applies to the area shown in the property report extract below:

1. This shows that the Heritage Overlay applies to the traditional Victorian commercial strip comprising shops and hotels but not to the north side of Elgin Place where the contemporary developments at No. 108 Power Street and No. 1 Elgin Place are located.
2. The statement of significance for HO494 refers to the historic, aesthetic and social significance of the precinct. It refers to the extent of intactness and common elements of siting, scale, fenestration and ornament.
3. The Council did not raise concerns about the height and scale of the proposed development in the context of considerations under Clause 43.01 and Clause 22.03.

1. As Mr Martyn notes, the Council's heritage advisor concluded that, to the extent that the proposed development would be seen, it would fit comfortably within the heritage streetscape and would not detract from the heritage place.
2. The proposed five storey form sits to the rear of the retained front portion of the building with its high parapet. Renovation of the retained building is a positive outcome in heritage terms. The proposed new building form inserted behind the retained structure would be seen in oblique views over lower forms, such as the two premises to the west, rather than directly opposite. The setback is said by the Council to be sufficient to protect the heritage values of the Burwood Road streetscape and retain the primary focus on the Victorian commercial premises. Having said that, removal of the top floor would improve the outcome. Retention of Condition 1(c) on the permit does not have consequential, unacceptable, impacts in heritage terms.

1. For the above of reasons, I conclude Condition 1(c) is required when assessing the proposal under Clause 43.02 and DDO12. When balancing other considerations, including the proposal's acceptable response in heritage terms and its contribution to housing goals (albeit the dispute is only about the loss of one dwelling), I remain of the view that Condition 1(c) must be retained on the permit.

1. The dispute about Condition 7 relates directly to Condition 1(c) as it reallocates parking consequent upon the removal of the top floor of the proposed building. Given that I have formed the view that Condition 1(c) is required, I will also retain Condition 7.

1. For the above reasons, I will affirm the responsible authority's decision.

[1] As shown in the property report extract.

[2] DDO12 refers to a West Hawthorn policy at Clause 22.15 that has been deleted from the scheme.

[3] Permit requirements at the time of the decision to grant the permit and conditions on the permit.

[6] Clauses 15 (including Clause 15.03), 21.04, 21.05, 21.06 and 22.03.

[7] Measured to the curved parapet based on information provided by Mr Martyn.

[9] Excluding requirements relating to street frontage height, setbacks and some other requirements. There are some variations for two key sites - Hawthorn Square and its rear car park.

[10] Excluding plant and services platform.

[11] Unlike some other DDOs in the Boroondara Planning Scheme, such as DDO14.

[12] This has been a consistent finding in relation to activity centres, such as in Hampton Street in Bayside where multiple applications have been considered by the Tribunal.

[13] Regular review of the Boroondara Planning Scheme is a mandatory requirement of the Planning and Environment Act 1987. This would typically consider the effectiveness of local planning policies, zones, overlays and schedules in achieving the objectives and strategies of the planning scheme and giving effect to State planning policy objectives.

[15] Athedim (Vic) Pty Ltd v Moonee Valley CC (No 2) [2010] VCAT 1091, [12].