Peter Gibson Developments Pty Ltd v Stonnington CC [2011] VCAT 1007

1. Pursuant to Section 127 and Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the following plans are substituted for the application plans:
   • TP1-00 Site Plan Revision B; TP1-01 Lower Basement Plan Revision C; TP1-02 Upper Basement Plan Revision C; TP1-03 Ground Floor Plan Revision C; TP1-04 Level 01 Plan Revision D; TP1-05 Level 02 Plan Revision D; TP1-06 Level 03 Plan Revision C; TP1-07 Level 04 Plan Revision C; TP1-08 Level 05 Plan Revision C; TP1-09 Plant Floor Plan Revision B; TP1-10 Roof Plan Revision B; TP1.20 Apartment Plans Revision B; TP1.21 Apartment Plans Revision B; TP2-00 Existing Streetscapes Revision B; TP2-01 Proposed Streetscapes Revision B; TP2-02 South Elevation Revision C; TP2-03 North Elevation Revision C; TP2-04 East Elevation Revision C; TP2-05 West Elevation Revision C; TP2-06 Section AA Revision C; TP2-07 Section BB Revision C; TP2-08 Section CC Revision C; TP2-09 Elevation Details Revision B; TP2-10 South Elevation Overall Colour Revision B; TP2-11 North Elevation Overall Colour Revision B; TP2-12 Ramp Sections Revision B; TP3-03 Ground Floor Plan Apartment Layouts Revision B; TP3-04 Level 01 Plan Apartment Layouts Revision C; TP3-05 Level 02 Plan Apartment Layouts Revision C; TP3-06 Level 03 Revision B; TP3-07 Level 04 Plan Revision C; TP3-08 Level 05 Plan Revision B; dated 21.03.11, prepared by Rothe Lowman.
   • Shadow Diagrams 1pm & 3pm - 21st September; Shadow Diagrams 9am & 11am - 21st September; Materials Board, prepared by Rothe Lowman.
2. The decision of the Responsible Authority in relation to permit application no. 0487/10 is set aside.
3. A permit is granted in relation to land at 459 - 473 Malvern Road, South Yarra. The permit will allow:
   • The construction of a five-storey building (plus basements); and
   • Use of the land for the purpose of shops, food & drink premises (café) and dwellings.

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

Mr C Townshend SC and Mr A Walker of Counsel, instructed by Hoeys Lawyers. Evidence was called from:

• Mr A Biacsi, Town Planner of Contour Consultants Australia.
• Mr A Sheppard, Urban Designer of David Lock & Associates.
• Mr T De Young, Traffic Engineer of GTA Consultants.

The Visual Impact Analysis of Mr Michael Chang was provided. The parties agreed that Mr Chang was not required to be called.

Mr P English, Town Planner of Peter English & Associates Pty Ltd.

For A Whittle, A Jackson, J Wasiak, D Austin, D McManus, A Rochlin, G Martin, L Balding, S Suntinger, M McKay, A Large, R Pethebridge, S Hui, P Fullerton, J Krongold, G Stewardson, L Robertson, D Christison, J Kayser, M Robb, A Smith, B Kayser, R Thomson, E Haines, S Sherman, C Mardisislioyo and H O'Brien.

Construction of a six-storey building (plus basements) accommodating shops, food & drink premises (café), dwellings and associated car parking.

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

Abuttal to a road in a Road Zone Category 1 (RDZ1).

Cl. 34.02-1 (use of the land in B2Z for shops, food & drink premises and dwellings).

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

Cl 52.06 (reduction of the car parking requirement).

Cl. 10, 11, 11.01, 11.04, 15, 15.01, 16, 16.01, 17.01, 18.02, 21, 22.02, 22.05, 22.06, 22.09, 22.12, 22.13, 34.02, 52.06, 52.07, 52.34 and 65.

The review site is located on the north side of Malvern Road, between Williams Road and Hobson Street in South Yarra, and has rear abuttal to McKillop Street. It forms part of the Hawksburn Neighbourhood Activity Centre. The land is an irregular allotment with an overall area of 2185 square metres. Presently occupying the land is a two-storey showroom/ warehouse, a single storey warehouse and car parking. To the north are residential properties. With one exception (40 McKillop Street), these properties have frontage to Howitt Street, and rear abuttal to McKillop Street. To the east is a row of two-storey Victorian terraces used for a variety of commercial and retail purposes. To the west is a car sales yard. On the opposite side of Malvern Road are further commercial and retail activities within buildings that are generally either one or two-storeys.

I undertook an inspection of the site and surrounds on the afternoon/evening of the first hearing day. A further inspection was undertaken after the hearing.

1. Peter Gibson Developments Pty Ltd made an application to the Stonnington City Council for a permit to construct a six-storey building (plus two basement levels) on the review site. The development is to accommodate five shops, a food & drink premises (café), 107 dwellings and associated car parking.
2. Notice of the Application was given and objections were received. The Council's officers assessed the application and recommended approval of the proposal, subject to a number of conditions.
3. The Council resolved to refuse the application on grounds relating to neighbourhood character, height, amenity impacts, insufficient car parking and inadequate internal amenity. Objectors to the application oppose the proposal on similar grounds.
4. I consider that the key issues for determination may be summarised as follows:
   • Is the proposal consistent with the planning policy frameworks of the Stonnington Planning Scheme?
   • Is the built form, including the height, an acceptable response to the strategic and physical context of the review site?
   • Will the development have an unreasonable impact on the amenity of the neighbouring residential properties?
   • Does the development provide an adequate number of car spaces?
   • Will the development provide an adequate level of internal amenity for residents of the proposed dwellings?
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, assisted by my inspections, I have decided to set aside the Council's decision.

Is the proposal consistent with the planning policy frameworks of the Stonnington Planning Scheme?

1. The review site is within the Hawksburn Activity Centre. The Strategic Framework Plan at Clause 21.01 identifies this centre as a "Neighbourhood Activity Centre (Large)". The Framework Plan also nominates Malvern Road as an arterial road "where Medium Density Housing and Shop Tops are encouraged and High Scale Development may be supported". State planning policy at Clauses 11.01 and 11.04 encourages higher density development within activity centres as part of the overall strategy of making greater and more efficient use of existing infrastructure and services. These policies, and their related strategies, play a key role in achieving the broader metropolitan vision of a more compact city.
2. The redevelopment of the site in the form of a multi level, mixed use building, incorporating a significant residential component, is consistent with the state policy of increasing densities in strategic locations such as this. In addition to contributing toward the greater use of established infrastructure, the additional resident population will support the on-going economic viability of existing shops and other services in the centre. It will also contribute to an increased patronage of public transport (tram and bus services along Malvern Road, and the nearby Hawksburn railway station, located some 400 metres to the north). The proposed shops and food & drink premises will assist in diversifying the centre's economic base and provide greater choice for the local population. This outcome is consistent with the various policies and strategies of the Planning Scheme that seek to concentrate developments into activity centres which are highly accessible to the community to provide a variety of land uses.
3. The importance of consolidating activity centres is reflected within the Local Planning Policy Framework. Notably, the Municipal Strategic Statement (MSS) at Clause 21.03 includes a strategy of directing residential development into activity centres as components of new developments, provided the scale and character of adjoining residential areas are respected. The MSS also identifies selected arterial roads (including Malvern Road) as locations where medium density housing is encouraged and higher scale development may be supported.
4. While there is broad policy support for the proposal, given its mixed use nature and higher density format, there are important qualifiers within both the State and Local policy frameworks that act to influence and potentially moderate the scale, form and height of the development. Relevantly, this is reflected in Clause 11.04-2, which articulates the following strategy in relation to the development of Neighbourhood Activity Centres (NACs):

Encourage higher density housing in and around Neighbourhood Activity Centres that is designed to fit the context and enhances the character of the area while providing a variety of housing options for different types of households.

1. The importance of ensuring that development responds to its context is also referenced in both the MSS and the local policies. At Clause 21.02-2, the MSS has a strategy of managing height and density of future use and development to enhance the character of the municipality's built form and its views and vistas. The Urban Design Policy[2] builds upon this and includes the two following objectives:

To ensure the design and scale of new development makes a positive contribution to the built form of the area and is respectful to the existing character and streetscape.

To encourage the development of large sites that is consistent with the role and character of the surrounding area and commercial and residential strategies.

1. Relevantly, it is policy that:
   • use and development maintain the character of the area;
   • new buildings not be significantly higher or lower than surrounding buildings;
   • parts of buildings over two storeys be set back behind the façade to minimise impacts on the streetscape; and
   • the height and scale of development is consistent with its particular setting and location and that it generally respects the one to two storey built form character of residential areas and most commercial and industrial areas.
2. The degree to which the proposed building is consistent with these policies is a central point of contention between the parties. I will address this in the following section of these reasons.

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

1. The Council and residents argue that, at six-storeys, the development is too high for this location. In opposing the proposed height, the Council made reference to the nearby Prahran/South Yarra Principal Activity Centre, and in particular to the Interim Design and Development Overlay (DDO7) that applies to land within that centre. The eastern edge of that Activity Centre is some 600 metres from the review site, and that land is occupied by the Horace Petty Housing Estate - a high rise public housing estate constructed by the former Housing Commission of Victoria. The Council advised that DDO7 nominates a preferred maximum building height of 16 metres for that site, although a note to the schedule states that building heights of new development fronting Malvern Road should not exceed a preferred maximum building height of 19 metres.
2. It was the Council's submission that "it wouldn't make sense" to allow a development on the review site whose height exceeds that nominated for a substantial change precinct of the principal activity centre. In essence, it was argued that the lower order nature of the Hawksburn centre should be reflected in buildings of a more modest scale and height.
3. The Applicant rejects the principle and substance of this submission. Mr Townshend stated that the Council's position on this issue has no basis in policy. His submission is that, while lower buildings may eventuate in NACs, this is not an automatic outcome of State planning policy. Rather, he argued, the key is context. That is, if the context permits, there is no policy reason why a taller building cannot be established in an activity centre of this order.
4. While I can understand the reasoning behind the Council's position, I find Mr Townshend submission persuasive. Having considered the relevant sections of both the State and Local Planning Policy Frameworks, I can find nothing in policy that would anticipate a graduation in heights as one moves through the activity centre hierarchy. I agree with Mr Townshend that policy requires development to respond to its context and, if the context so supports it, a taller building need not necessarily represent an unacceptable planning outcome in a lower order centre.
5. At this point, I consider it is worth commenting on a distinction between Principal & Major Activity Centres (PACs & MACs), and NACs. It is a matter that, in my experience, is frequently referred to by both advocates and experts in supporting developments that do not reflect the existing scale and character of a location within a PAC or MAC. It is commonly argued that the 'caveat' in policy that developments in and around NACs should fit the context and enhance the character does not apply to these larger centres. This is true. However, the reverse also applies and, indeed, it applies here. Developments in and around NACs need to respond to their physical context more so than would be expected of developments in locations further up the activity centre hierarchy where a greater degree of change is anticipated.
6. What then is the context of the review site, and does the development respond appropriately to this? I begin by observing that the Hawksburn Activity Centre is characterised by development of a two-storey scale. Although there are examples of three-storey buildings within the centre, these are few in number and do not significantly influence one's perception of the centre's built form scale. I also note that several of the original buildings (including the adjacent row of Victorian terraces) are of a height that approximates three contemporary storeys. Within this context, the lower three levels of the development achieve an appropriate fit within the Malvern Road streetscape.
7. The proposed three-storey height at the site's northern boundary, interfacing with McKillop Street, drew criticism from both the Council and the residents. In their submission, development to this boundary should be restricted to two-storeys. This, however, is largely in response to the development's potential impacts on the amenity of the adjoining residential properties rather than any streetscape considerations. McKillop Street functions primarily as a service thoroughfare, providing access to the rear of both the commercial and residential sites. It is not a streetscape with an identified valued character that warrants a particularly sensitive response. The development at the boundary will closely approximate the height of an existing building on the review site. While it will have a significantly greater breadth, the proposed structure will not unreasonably impact on the appearance of this streetscape - given its character, and its function as the interface between a business and residential zone. Importantly, the development will activate this part of McKillop Street by introducing dwelling frontages in place of the existing utilitarian rear abuttals of commercial premises.
8. It is fair to say that the principal issue of contention in relation to the building's height lies with the upper three levels. Essentially, the Council and residents consider that the building is too high. Conversely, the Applicant submitted that the proposed height is an acceptable response to the site's context. In doing so, reference was made to the proposed upper level setbacks, the articulated form of the building and the 1:1 relationship of the height to the width of Malvern Road.
9. I consider that the planning policy which requires development within NACs to fit with its context and enhance the character of the area carries significant weight in the assessment of whether the proposed height, in this instance, will represent an acceptable planning outcome. The review site's context is characterised by lower scale development, not exceeding three-storeys, with a prevalence of two-storey buildings evident in the commercial centre. Further examples of this scale exist within the residential areas that form the activity centre's hinterland.
10. I acknowledge that mere visibility is not the test. Just because a building will be visible, does not necessarily mean it is unacceptable. It is important, however, that this visibility is assessed within the physical and strategic context of the site. Whether the extent of a building's visibility is acceptable will vary depending on a number of factors including the vision for the area embodied in the planning scheme's policies, the scale of surrounding and nearby buildings, the nature and sensitivity of interfaces, the design of the building and the vantage points from which the building will be viewed.
11. I have already referred to the relevant policies which, when read as a whole, seek to achieve a level of change which is responsive to its context. I have also stated that the Hawksburn Activity Centre currently has a modest scale of development, arguably typical of traditional strip shopping centres in older established areas. The site also interfaces with a consolidated residential area. Within its context, the proposed development will appear as a highly prominent element. It will be much larger and higher than any other building within this area. This is a function of not only of its height, but also of its width, given the size of the land holding. Assisted by my inspections, I have come to the conclusion that the development, at the height proposed, will be unduly prominent within this prevailing low-rise environment. I accept that within proximity to the site, the upper levels will have a more restricted level of visibility as a consequence of the proposed setbacks. From slightly more removed locations, for example from the opposite side of the Malvern Road/Williams Road intersection, the upper levels will be visible in their entirety, allowing a full appreciation of the building's overall height and scale. While it is arguably an attractive, contemporary building that has been designed to be 'read in the round', I consider that it is too large to sit acceptably within its context. A more moderated response is warranted.
12. As proposed, the building will, at minimum, be double the height of existing development within this centre. In combination with its overall size arising from the substantial street abuttal and land area, it will have an overly prominent presence. I have not been persuaded that the result will be consistent with the policies of the Planning Scheme. My assessment is that the development is one level too high. I consider that the outcome sought by policy would be achieved maintaining the lower three levels (Ground, 1 and 2) as proposed, and by retaining Level 3 and the recessed topmost level currently annotated as Level 5. That is, Level 4 should be deleted. This would reflect an acceptable graduation in height from the lower rise surroundings and a more evident acknowledgement of the need to respond to the site's context. I will therefore require the building to be reduced to five storeys in height. I will also include a further condition allowing any consequential modifications to the car parking provision on the land, given that there will be a reduction in the number of dwellings.

Will the development have an unreasonable impact on the amenity of the neighbouring residential properties?

1. The principal impacts on the amenity of the neighbouring residential properties are those of overlooking and visual bulk. I will address each of these in turn.
2. In respect of overlooking from developments that are four or more storeys in height, the Higher Density Residential Development Guidelines (Department of Sustainability and Environment, 2004)[3] have the following Objective:

To maximise residential amenity through the provision of views and protection of privacy within the subject site and on neighbouring properties. (Objective 2.9)

1. The related design suggestion is that existing dwellings should be protected from potential overlooking in accordance with the requirements of Clause 55 of Planning Schemes. The relevant Standard B22[4] seeks to restrict views within a 9 metre distance from a balcony, deck, terrace or habitable room window.
2. In this instance, the width of McKillop Street is 9.1 metres. The proposed windows and balconies are therefore separated from the residential properties to the north by a distance which (just) exceeds the minimum specified in the Standard. It is noteworthy that all the affected residential properties, with the exception of 40 McKillop Street, which I will comment on shortly, have garages and outbuildings adjoining their rear boundaries. These structures act to provide further separation between the windows/ balconies of the development and the secluded private open space areas. On the basis of compliance with the Guidelines, I do not consider that screening is necessary for the majority of the north facing windows and balconies of the development.
3. The dwelling at 40 McKillop Street, however, is a different case. This is the sole dwelling that faces this street. It has its balcony, living area and bedroom facing the street. These spaces will be subject to overlooking from several of the proposed north facing dwellings. As a result of my inspections, I have concluded that the extent of overlooking justifies a requirement for the provision of screening to those dwellings that will have views of these areas. I say this on the basis of the separation which only marginally exceeds the minimum referred to in the relevant Standard, and will give rise to a perception of unreasonable overlooking. I will include a condition that requires the provision of screening to address this issue.
4. The issue of visual bulk is more difficult. An assessment of whether a proposed development will present unreasonable visual bulk to neighbouring residential land is, to some degree, a subjective one. There are no specific quantitative guidelines to assist decision-makers to undertake such a task. Frequently, consideration is given to the proposed height, the nature and extent of setbacks, the palette of external materials and finishes, and any modulation provided by protruding and/or recessed elements, amongst others. Whether the resultant visual impact is acceptable is almost invariably dependent on the design response, including the architecture of the building and its siting in relation to the affected residential properties. It is also dependent on the layout of the residential properties and the extent to which the development is visible from sensitive areas, such as the secluded private open spaces.
5. There is no question that this development will be visible from the rear yards of the properties to the north. In fact, it will be highly visible from these areas. The Applicant has attempted to moderate the building's visual impact by recessing the upper levels from the review site's northern boundary, and including a significant level of modulation and articulation in the façade. Also assisting in this respect is the physical separation provided by the width of McKillop Street and the outbuildings that exist in the rear of these properties.
6. An assessment of potential visual bulk must be made within the site's strategic context. A more significant visual impact must be anticipated in areas which interface with business zones. This is arguably even more so in areas which are within or adjoin activity centres, where substantial change is anticipated by the policies of the Planning Scheme. Activity centres are changing. This change is occurring with the progressive implementation of the policies which I outlined earlier and are incrementally intensifying not only the use of land in these areas, but also the resultant built form. With these larger buildings comes increased visibility.
7. However, development within activity centres that have an interface with residential areas must be sited and designed to respond to these sensitive land uses in a positive, and appropriately sympathetic, manner. A less robust response than would be acceptable in an exclusively non-residential context must be contemplated. In practice, this is likely to mean that the built form must be suitably moderated.
8. The Standards of Clause 55 are sometimes called upon to assist in these assessments. Indeed, the plans include a section drawing that incorporates an extrapolation of the setback profile of Standard B17[5]. This diagram demonstrates that the building will be contained within this profile. The Standard, however, has its limitations as it is not formulated for developments that exceed three-storeys in height (excluding a basement) and it does not specifically address the effect of a building's breadth on the resultant visual bulk. The setback profile is assessed at a particular point of an elevation and does not take the width of that elevation into account. This later consideration is particularly relevant in this instance. The site's McKillop Street boundary extends for 65.47 metres. With an abuttal of this length, the building's northern elevation is expansive, and it extends across the rear aspect of eight (8) residential properties. For the majority of these properties, there will be no relief from the built form to the east and west. Adding to this is the visual impact of the building's height.
9. I consider that the proposed six-storey height will result in a dominant built form as it presents to the sensitive open space areas of these neighbouring residential properties. These sites have rear yard areas of restricted size and dimension. Although many display outbuildings which interface with McKillop Street, these structures are typically single-storey and of modest proportions. They will not be effective in screening or restricting views of the development's upper levels. I consider that, in combination with the extensive northern elevation, the proposed height will result in the building manifesting as a somewhat overwhelming presence when viewed from the residential properties.
10. I am satisfied, however, that the deletion of a level from the building will also reduce visual bulk to an acceptable level. The staggered profile that would be achieved if Level 4 is deleted would give a more significant recession to the development's upper levels, with a consequential reduction of the building's visual impact on the neighbouring residential land. I consider that the reduction in the overall height, while still resulting in a large building, will achieve an acceptable outcome when consideration is given to the policy framework and the site's location within a business zone and activity centre, where change is to be facilitated.
11. Residents are also concerned about the potential effects of light and noise from the development. These are expected outcomes with any multi level residential development and are unlikely to be of such a nature as to unreasonably impact on the amenity of the existing dwellings. Should any noise generated be considered to constitute a nuisance, then there are other laws to deal with this.
12. In summary, subject to the deletion of Level 4 and the inclusion of screening to address overlooking of the property at 40 McKillop Street, I consider that the development should not have an unacceptable impact on the amenity of the neighbouring residential area.

Does the development provide an adequate number of car spaces?

1. The basement levels of the development are to accommodate 104 car spaces. It is proposed to provide on-site car parking at a rate of 0.85 space per dwelling (equating to 98 spaces) and 1 car space per commercial tenancy (6 spaces). The Applicant submitted that seven of the dwellings are likely to be occupied by residents who do not own a vehicle, and that residential visitors and customers will rely on the available public car parking in the surrounding area.
2. The Council's Traffic Engineer is supportive of the proposed car parking arrangements. The comments included in the officer's report confirm that the Traffic Engineer is satisfied with both the number and allocation of car spaces, and that the visitors and customer parking can be readily accommodated in public parking areas. These areas include on-street, and within the May Road car park further to the east.
3. Notwithstanding this, the Council contends that the proposed car parking arrangements are unsatisfactory. It was submitted that, while reliance on publicly available spaces is acceptable for customers, all resident and visitor car parking and one additional commercial car parking space should be provided on the land. In doing so, the Council accepts the Applicant's suggested visitor car parking rate of 0.12 space per dwelling, generating a requirement for 13 spaces. Council therefore seeks the provision of a further 21 on-site car spaces. The residents similarly argue that the shortfall in parking will result in vehicles being parked in the nearby residential areas, to the detriment of existing residents.
4. The Applicant's evidence is that the proposed car parking provision is satisfactory. The evidence included parking surveys of the surrounding non-residential streets and the May Road car park. These surveys demonstrate that there is sufficient capacity in these areas to accommodate the demands of the development[6]. When the vacant spaces in the May Road car park are excluded, the surveys indicate the availability of at least 46 vacant car spaces. Based on this evidence, and the support of the Council's Traffic Engineer, I am persuaded that the parking requirements of visitors and customers can be met by the publicly available spaces in the area. Further, due to the small size of the commercial tenancies, the provision of 6 on-site spaces should adequately cater for the long term parking needs of the non-residential component.
5. The location is very well serviced by public transport and is within walking distance of a wide range of services and facilities within both the subject activity centre and the nearby Chapel Street activity centre. On this basis, I accept the Applicant's submission that the absence of on-site car parking for seven of the dwellings is acceptable, as these dwellings will be attractive to persons who for whatever reason do not own (or do not wish to own) a vehicle. Further, this outcome is consistent with the Council's position of reducing car dependency in strategic locations such as this.
6. The proposal is expected to generate in the order of 40 vehicle movements in the peak hour, equating to one vehicle per one-and-a-half minutes. Both the Council's Traffic Engineer and the Applicant's witness are satisfied that the traffic volumes arising from the development can be readily absorbed by the street network without compromising its safety, function or efficiency. The evidence is also that the key intersections of Malvern Road/Hobson Street and Williams Road/McKillop Street will continue to operate well within acceptable parameters. I was not provided with any evidence to demonstrate that the traffic generated by this development will exceed that which can be accommodated by the existing roads.
7. There is some concern on the part of the residents that the proposal will result in the loss of on-street parking in McKillop Street. This will arise from a requirement to provide a footpath adjacent to the review site to provide pedestrian access to the proposed dwellings that will front this street. I accept that this is a likely outcome. The Applicant's evidence, however, indicates that there is adequate parking in the surrounding streets to accommodate displaced vehicles.
8. Overall, having regard to the activity centre context of the site, the nature of the development, including the size of the dwellings, and the availability of all modes of public transport, I consider that the proposed car parking provision is acceptable. Based on the evidence, I am also persuaded that the proposal will not have an unacceptable impact on local traffic conditions. While there will be a noticeable increase in the number of vehicles within the immediate locality, particularly along McKillop Street, it should be adequately accommodated by the existing street network.
9. I have not been persuaded that there is any car parking or traffic related reason to refuse this application.

Will the development provide an adequate level of internal amenity for residents of the proposed dwellings?

1. The key concern of the Council in this respect is the reliance of the majority of the single-bedroom dwellings on borrowed light. Specifically, the bedroom of these dwellings is not provided with a window and is dependent on light and ventilation from the adjoining living area. It is noted that none of the south facing dwellings include such an arrangement, as the bedroom includes an external window.
2. As observed by the Tribunal in Broadland[7] the acceptability or otherwise of 'borrowed light' arrangements can be contingent on a number of matters including: the orientation of units, the depth of the room across which light would be borrowed, what else might intervene between the window and internal bedroom (such as a bathroom wall), the number of units relying on borrowed light, and the overall amenity of other habitable spaces. The Tribunal also observed that, in small units, sliding glazed panels can assist to integrate the bedrooms into the living areas or to close them off from the living areas, depending on individual preferences. I agree that this arrangement can represent an acceptable (although not ideal) outcome. I will therefore require that each of the bedrooms in these dwellings be provided with sliding glazed panels that allows it to either be integrated with, or separated from, the living area as desired. I note that this is currently shown for some, but not all, of the dwellings. In favour of such an arrangement is the north, east and west orientation of the units, the absence of any intervening room between the bedroom and the light source and the distance of the bedroom to the external window.

1. The residents expressed particular concerns regarding the location and use of the proposed loading bay. I note, firstly, that the dimensions of the loading bay meet the requirements of Clause 52.07 and are therefore acceptable. This application does not seek permission to reduce or waive the requirements of this Clause.
2. I observed earlier in these reasons that McKillop Street functions primarily as a service thoroughfare providing access to the rear of both Malvern Road and Howitt Street properties. It is appropriate, therefore, that any loading bay associated with the proposed development is positioned so that it is accessed from McKillop Street, rather than from Malvern Road. The latter option is undesirable for a number of reasons, not the least of which would be the disruption of the otherwise active frontage of the development and the implications for the operation of Malvern Road (which is within a Road Zone Category 1) associated with vehicles reversing either into or out of the site.
3. Despite submissions to the contrary by the Applicant, I consider that the interface with the residential properties warrants a restriction on the times during which the loading bay can be used. Such a restriction would assist in ensuring that the legitimate use of the loading bay does not unduly affect the amenity of the neighbouring dwellings. The review site's interface with a residential zone, in my view, justifies the regulation of these hours.
4. On the issue of waste collection, the Council is satisfied that an appropriate Waste Management Plan can be developed for the site. Indeed, a draft of such a plan accompanied the planning application. Council officers assessed the Plan and generally found it to be acceptable. Again, it is intended - appropriately in my view - that the garbage collection is undertaken via McKillop Street by a private contractor. In summary, bins are to be transferred to a 'holding area' at the rear of the loading bay and then taken to the collection vehicle out on McKillop Street for emptying. A condition can require the preparation and approval of a Waste Management Plan, which must include a restriction on the hours and days during which garbage will be collected from the site.

1. For these reasons, I have concluded that subject to the modifications detailed in the Order, including the deletion of Level 4, the proposal will represent an acceptable response to the review site's strategic and physical context.
2. I will therefore set aside the Responsible Authority's decision and grant a permit.

• The construction of a five-storey building (plus basements); and
• Use of the land for the purpose of shops, food & drink premises (café) and dwellings

1. Before the development starts, 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 TP1-00 Site Plan Revision B; TP1-01 Lower Basement Plan Revision C; TP1-02 Upper Basement Plan Revision C; TP1-03 Ground Floor Plan Revision C; TP1-04 Level 01 Plan Revision D; TP1-05 Level 02 Plan Revision D; TP1-06 Level 03 Plan Revision C; TP1-07 Level 04 Plan Revision C; TP1-08 Level 05 Plan Revision C; TP1-09 Plant Floor Plan Revision B; TP1-10 Roof Plan Revision B; TP1.20 Apartment Plans Revision B; TP1.21 Apartment Plans Revision B; TP2-00 Existing Streetscapes Revision B; TP2-01 Proposed Streetscapes Revision B; TP2-02 South Elevation Revision C; TP2-03 North Elevation Revision C; TP2-04 East Elevation Revision C; TP2-05 West Elevation Revision C; TP2-06 Section AA Revision C; TP2-07 Section BB Revision C; TP2-08 Section CC Revision C; TP2-09 Elevation Details Revision B; TP2-10 South Elevation Overall Colour Revision B; TP2-11 North Elevation Overall Colour Revision B; TP2-12 Ramp Sections Revision B; TP-3-03 Ground Floor Plan Apartment Layouts Revision B; TP3-04 Level 01 Plan Apartment Layouts Revision C; TP3-05 Level 02 Plan Apartment Layouts Revision C; TP3-06 Level 03 Revision B; TP3-07 Level 04 Plan Revision C; TP3-08 Level 05 Plan Revision B; dated 21.03.11, prepared by Rothe Lowman, but modified to show:

1. The deletion of Level 4. 2. Any modification to the number of car spaces provided on the land as a consequence of the deletion of Level 4.

1. The bicycle storage areas dimensioned to show compliance with the relevant Australian Standards, or otherwise be to the satisfaction of the Responsible Authority.

1. The column locations for 90 degree parking within the basement car park relocated to comply with the relevant Australian Standards Section 5.2 of AS/NZS 2890 1:2004, or otherwise be to the satisfaction of the Responsible Authority. 2. The curved ramp widened to a minimum of 6.7m (plus clearances) in accordance with the relevant Australian Standards AS/NZS 2890.1:2004 Table 2.2, or otherwise be to the satisfaction of the Responsible Authority. 3. Provision of 2.0m x 2.5m sight triangles at the exit point of the loading bay, and to the west side of vehicle exit ramp. If a sight triangle cannot be achieved to the vehicle exit ramp, a convex mirror must be located to the east side of the vehicle exit ramp to the satisfaction of the Responsible Authority. 4. A notation stating that all doors to service and equipment rooms to McKillop Street must be hinged to allow doors to rest against abutting wall. 5. The ground floor plan to include a notation for new footpath, kerb and channel in McKillop Street directly adjacent to the northern property boundary to the satisfaction of the Responsible Authority and in accordance with the requirements of Condition No. 7 of this Permit. 6. All architectural features to be contained within the title boundaries. 7. The awning/canopy over Malvern Road to be set back and/or designed to limit any impact on the canopies and stems of the two mature street trees to the satisfaction of the Responsible Authority. 8. The capacity of rainwater tanks.

1. The internal layout of dwellings as detailed on apartment layout drawings TP3-03 to TP3-08 to be included on floor plan drawings TP1-03 to TP-08.

1. In all dwellings where the bedroom relies on borrowed light, a glazed sliding panel must be provided in the wall that separates the bedroom from the living area. 2. Provision of screening to all windows and balconies that allow direct views into the balcony and habitable room windows of the dwelling at 40 McKillop Street. The screening must be in accordance with Clause 55.04-6 (Standard B22) of the Stonnington Planning Scheme. 3. A schedule which details the allocation of car spaces. 4. The finishes legend shown on elevation drawings to be included as a fully detailed and separate colours, materials and finishes schedule which can be read in conjunction with the nominated finishes on elevation drawings.
2. The plans endorsed to accompany the permit must not be amended without the written consent of the Responsible Authority.
3. 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) hours of demolition and hours of construction;
     • (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.

The development must be undertaken in accordance with the approved Construction Management Plan to the satisfaction of the Responsible Authority.

1. Before the plans required by Condition No.1 of this Permit are endorsed, a Waste Management Plan must be submitted to, and approved in writing by, the Responsible Authority. The Waste Management Plan must include, but is not limited to:
   • (a) The location, area and dimensions of the bin storage area.
   • (b) The number and type of bins to be provided.
   • (c) Method of waste and recyclables collection.
   • (d) Hours and days of waste and recyclables collection.
   • (e) Method of presentation of bins for waste/recyclables collection.

(f) Strategies for how the generation of waste and recyclables from the development will be minimised.

(g) If waste is to arrive in the ground level refuse room via a chute system, details as to how waste will be sorted into hard, recycling and green waste to ensure minimal landfill results.

The storage and collection of waste and recyclables from the development must be in accordance with the approved Waste Management Plan, to the satisfaction of the Responsible Authority.

1. With the exception of buildings and works associated with the undertaking of the assessment required by this condition, the construction or carrying out of buildings and works (including excavation) must not occur until an environmental assessment of the site, prepared by a suitably qualified environmental professional, is submitted to the Responsible Authority to its satisfaction.

• the extent of the soil testing carried out;
• details of the location, nature and level of any contamination identified on the land;
• details of measures to remove or effectively manage that contamination (management measures); and
• recommendations whether the environmental condition of the land is suitable for residential use, and whether an environmental audit of the land should be undertaken.

If the consultant's opinion is that an environmental audit should be undertaken, then before the development is occupied, either:

• A certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970, or
• 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 have been made suitable for residential use.

In the event that the management measures are required, or a Statement is issued in accordance with Part IXD of the Environment Protection Act 1970, before the development is occupied:

• all management measures of the site assessment or conditions of the Statement of Environmental Audit requiring immediate carrying out must be complied with to the satisfaction of the Responsible Authority; and
• written confirmation of compliance with this requirement must be provided by a suitably qualified environmental professional.

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 management measures or conditions of the Statement 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.

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 starts, an Environmentally Sustainable Development Management Plan (ESD Management Plan) prepared by a suitably qualified person must be submitted to, and approved in writing by, the Responsible Authority. The ESD Management Plan must include, but is not limited to, the following:

1. Energy Management. 2. Water Conservation and Re-use, including connecting water tanks to toilet flushing; or an alternative to the satisfaction of the Responsible Authority.

1. Details of the relevant statutory obligations, strategic or other documented sustainability targets or performance standards. 2. The means by which the appropriate target or performance will be achieved. 3. The responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring. 4. Confirmation/evidence that the design elements, technologies and operational practices that comprise the ESD management plan can be maintained over time.

The approved ESD Management Plan must be implemented to the satisfaction of the Responsible Authority.

1. Any pruning of the street tree canopies to facilitate building works must be carried out by Council.
2. Before the development is occupied, the owner/permit holder must undertake and pay the costs of all works for the construction of a new footpath, kerb and channel and associated crossovers to the rear and adjacent to the northern boundary of the site in the location and existing width (approximately 1.7m) of the existing bluestone pitchers and channel. Before the commencement of the works, fully detailed and dimensioned engineering drawings showing the proposed works, to the satisfaction of the Responsible Authority, must be submitted to and approved in writing by the Responsible Authority. The works must be supervised and carried out to the satisfaction of the Responsible Authority.
3. Any poles, service pits or other structures/features 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.
4. 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.
5. The legal point of discharge must be obtained from Council and a drainage design for the development must be prepared by a suitably qualified Engineer in accordance with that report prior to a building permit being issued.
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, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:

1. Constructed to the satisfaction of the Responsible Authority. 2. Properly formed to such levels that they can be used in accordance with the plans.

1. Surfaced with an all-weather sealcoat or surfaced with crushed rock or gravel to the satisfaction of the Responsible Authority.

1. Drained and maintained to the satisfaction of the Responsible Authority. 2. 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.
2. Before the development is occupied, the car spaces must be made available for use at all times. No fees may be imposed for the use of the spaces, to the satisfaction of the Responsible Authority.
3. A minimum of six (6) car spaces must be allocated to the commercial tenancies, one to each tenancy, at all times when the use is operating to the satisfaction of the Responsible Authority.
4. A maximum number of 30 seats must be provided at all times the food and drinks premises (cafe) use is in operation unless with the written consent of the Responsible Authority.
5. The food and drinks premises (cafe) use must operate only between the hours of 7.00am and 7.00pm daily unless with the written consent of the Responsible Authority.
6. The loading and unloading of vehicles and the delivery of goods to and from the premises must at all times be conducted entirely within the site and in a manner that limits interference with other vehicular traffic to the satisfaction of the Responsible Authority.
7. The delivery of goods to the land, and the loading and unloading of goods from vehicles, in association with the shops and the food & drinks premises (café) must only be undertaken during the following times:
   • Monday to Saturday: 7.00am - 7.00pm
   • Sunday and Public Holidays: 8.00am - 6.00pm
8. The awning over Malvern Road must be constructed and maintained to the satisfaction of the Responsible Authority.
9. The use and development must be managed so that the amenity of the area is not detrimentally affected through the:

1. Transport of materials, goods or commodities to or from the land. 2. Appearance of any building, works or materials.

1. Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.

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

1. 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.
2. Adequate provision must be made for the storage and collection of wastes and recyclables within the site before the development is occupied. This area must be appropriately graded, drained and screened from public view to the satisfaction of the Responsible Authority.
3. Bottles and rubbish must not be removed from within the food and drinks premises between the hours of 11.00pm and 7.00am the following day.
4. No goods are permitted to be stored or left exposed outside the building so as to be visible from any public area.
5. Noise emanating from the land must not exceed the permissible noise levels when determined in accordance with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1. Any works required to ensure the noise levels from plant equipment are in compliance with this policy must be completed before the development is occupied and maintained thereafter, all to the satisfaction of the Responsible Authority.
6. Noise emanating from the premises must comply with permissible levels specified in the State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2, to the satisfaction of the Responsible Authority. Any works required to ensure the noise levels are in compliance with this policy must be completed before the development is occupied and maintained thereafter, all to the satisfaction of the Responsible Authority.
7. The kitchen(s) exhaust system must provide for a vertical discharge to the atmosphere at a point and velocity which allows for effective dispersal of fumes so as to not create a nuisance to the surrounding amenity in accordance with the Health Act 1958, to the satisfaction of the Responsible Authority.
8. Fumes from any café/restaurant kitchen(s) must be treated within the mechanical exhaust system to ensure that any discharge does not create a nuisance (as defined under the Health Act 1958). Options available include carbon filters, ultra violet ozone producing lamps, electrostatic precipitation, odour neutralising system or other suitable method. The method of treatment must be designed, installed, operated and maintained to the satisfaction of the Responsible Authority.
9. All plant and equipment (including air-conditioning units) must be located or screened so as not to be visible from 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, all to the satisfaction of the Responsible Authority.

1. Before the use of the land commences, a Green Travel Plan must be prepared to the satisfaction of the Responsible Authority following consultation with the Department of Transport (Public Transport Division). The Plan must be prepared by a suitably qualified person and must encourage the use of non-private vehicle transport modes by the occupiers of the land. The Plan must include the following:

1. A description of the location in the context of alternate modes of transport and objectives for the Green Travel Plan. 2. Outline Green Travel Plan measures for the development including, but not limited to: 1. Household welcome packs - tram, train and bus timetables relevant to the local area must be included in the pack of information provided to purchasers upon a purchaser's occupation of an apartment. 2. Include a minimum of 10 by 2 hour metcard (zone one) within the household welcome pack or a myki pass (of equivalent value) and registration information. 3. Bicycle parking and facilities available on the land. 4. Monitoring and review.

1. A plan showing the bicycle parking areas to be provided for use by residents.
2. The Green Travel Plan must not be amended without written consent of the Responsible Authority following consultation with the Department of Transport (Public Transport Division).
3. Once approved the Green Travel Plan must form part of the planning permit and any ongoing Management Plan for the land to ensure the Green Travel Plan must be implemented by residents/owners to the satisfaction of the Responsible Authority.'
4. The permit holder must take all reasonable steps to ensure that disruption to tram operation along Malvern Road is kept to a minimum during the construction of the development. Foreseen disruptions to tram operations during construction and mitigation measures must be communicated to Yarra Trams and the Director of Public Transport not less than fourteen days (14) prior.
5. The permit holder must ensure that all track, tram/rail overhead and supporting infrastructure is not damaged. Any damage to public transport infrastructure must be rectified to the satisfaction of the Director of Public Transport at the full cost to the permit holder.
6. This permit will expire if one of the following circumstances applies:

1. The development does not start within two years of the date of this permit. 2. The development is not completed within four years of the date of this permit.

1. The use does not start within five years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

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

[3] The Guidelines are referred to in Clause 15.01-2

[6] The May Road car park is some distance from the review site and is not readily identifiable due to its location behind the Malvern Road commercial premises. As advised at the hearing, I am not satisfied the car park is likely to be used by customers and visitors of the development due to its concealed nature. This has no material effect on the Applicant's survey data as during the peak demand times, this car park was almost at capacity, with a maximum of two vacant car spaces.

[7] Broadland Capital Pty Ltd v Port Phillip CC & Ors [2010] VCAT 1007