35. VicRoads Condition (Works at no cost to VicRoads)

All works within the declared road must be performed at no cost to VicRoads.

36. Works Prior to Commencement Use/Development

The use permitted by this permit must not be commenced or occupied until:-

(a) the parking area(s) shown on the endorsed plan(s) have been constructed to the requirements and satisfaction of the Responsible Authority.

(b) the garden and landscape area(s) shown on the endorsed plan(s) have been planted to the requirements and satisfaction of the Responsible Authority.

(c) the works within Kiernan Avenue and Upper Heidelberg Road including streetscape improvements, roadworks and line marking are completed to the requirements and satisfaction of the Responsible Authority.

This permit will expire if one of the following circumstances applies:

- The development is not commenced within two years of the date of this permit.

- The development is not completed and the use commenced within four years of the date of this permit.

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

Mr C Canavan QC and Mr A Finanzio of Counsel instructed by D M Davidson, Solicitor (Mr Canavan appeared only in the March hearing dates)

Mr A Biasci, town planner of Contour Consultants Australia Pty Ltd

Mr S Hunt, Traffic Engineer of Grogan Richards Pty Ltd.

Mr R Galbraith, arborist of Galbraith & Associates.

Mr D Oppenheim, architect of Sustainable Built Environments Pty Ltd

Mr A Wyatt, Landscape Architect of Environment Resources Management Australia.

These witnesses were however not called to give evidence.

For the Respondents, Seacrest Pty Ltd & Bratsk Pty Ltd:

Mr S Morris QC with him Ms S Brennan of Counsel instructed by Rigby Cook, Solicitors (Mr Morris appeared only in the March hearing dates)

Ms D Donald, traffic engineer of Andrew O'Brien & Associates Pty Ltd.

Mrs R Roberts, Mr L Course, Mr P Carr, Mr M Harkin, Ms V Davidson, Mr J Morgan.

1. This is an application under Section 77 of the Planning and Environment Act 1987 ("The Act") brought by Plentie Pty Ltd to review a decision by the City of Banyule ("The Council") to refuse a permit for the development of land at 72 - 84 Upper Heidelberg Road & 1 - 5 Keirnan Avenue, Ivanhoe for the purpose of a mixed used development comprising retail, residential and associated uses.

2. The application was refused by the Council on the following grounds;

1. The proposal is an overdevelopment of the subject site.

2. The height, bulk, scale and design of the building is inappropriate for the site and will have detrimental impact on the surrounding area.

3. The proposal fails to meet the objectives of the Ivanhoe Shopping Centre Urban Design Guidelines.

4. The proposal will result in detrimental traffic impacts on the surrounding residential streets.

5. The proposal fails to provide for 35 public car parking spaces required as part of a Section 173 Agreement included on title.

6. The proposal is contrary to the proper and orderly planning of the area.

3. In this matter the Tribunal was originally constituted by Members Hewet and Fong. On 5 March 2003, Mr Morris raised legal issues in his submission, of which prior notice had not been given in accordance with Practice Note Planning and Environment List (No.1), clause 4.3. After discussion between the parties, the Tribunal was reconstituted to include a legal practitioner, Deputy President Horsfall, with Mr Hewet, Mrs Fong retiring from the hearing. The Tribunal as reconstituted then proceeded to hear submissions on both the questions of law and the merits of the application.

4. The Tribunal by Order dated 26 June, 2003 determined the questions of law as follows, and provided written reasons for the Order;

1. The questions of law are determined are as follows:

(a) The Section 173 Agreement has not been ended but operates by virtue of clause 1.1(7) thereof so that the reference to the Design Guidelines referred to in the Agreement is now a reference to the 2002 Design Guidelines.

(b) Neither the Section 173 Agreement nor any of the covenants forming part of it is a registered restrictive covenant within the meaning of Section 61(4) of the Planning and Environment Act 1987.

2. The consideration of the other questions of law is adjourned to a date to be fixed.

5. At a directions hearing conducted on 4 August, 2003, the Tribunal gave leave by consent for amended plans to be substituted for those which had formed part of the permit application. The Tribunal also granted leave to Seacrest Pty Ltd and Bratsk Pty Ltd to withdraw from the proceedings with no order as to costs against them. The hearing was adjourned to Monday, 29 September.

6. At the hearing on 29 September, 2003, we were advised that the Council had considered the amended plans and at its meeting on 8 September, 2003 resolved that it now supported the grant of a permit subject to conditions. Mr Finanzio advised us that there now remained only one matter in dispute between the permit applicant and the Council and that matter related to condition 1(k) of the Council's proposed conditions. Condition 1(k) reads as follows;

Amendments to the fourth and fifth levels of the building to reduce the bulk of the building by achieving the following setbacks;

(i) Level 4 (third floor plan, sk-111) increase the rear (eastern) setback from the eastern boundary by 8 metres on each of the two apartment towers.

(ii) Level 5 (third floor plan, sk-112) increase the rear (eastern) setback from the eastern boundary by 16 metres and front (Upper Heidelberg Road) setback by 8 metres on the northern tower and increase the rear (eastern) setback from the eastern boundary by 8 metres on the southern tower.

The additional roof areas created by the increased setback are not to be utilised by expanded balconies except where balconies are repositioned with the approval of the responsible authority. Apartments in the balance of the development may be reconfigured in the redesign that results from the increased setbacks.

7. Condition 1(k) was imposed by the Council notwithstanding that it had received a comprehensive report prepared by its town planners which recommended that the amended proposal be supported subject to minor further amendments.

8. Mr Course and Mrs Roberts advised that they wished to make submissions on other outstanding issues.

9. At the conclusion of the hearing on 29 September, 2003, we advised the parties that the decision of the responsible authority to refuse the application was set aside and that a permit was granted and directed to be issued, subject to the conditions contained in the Council's resolution of 8 September, 2003, except that condition 1(k) must be deleted.

10. We provided oral reasons for our decision and advised that written reasons would be provided in due course.

11. The application originally considered by the Tribunal involved the redevelopment of the site for the purpose of a mixed use development comprising a supermarket, 450 m2 of retail floorspace, 93 apartments, car parking for 327 vehicles, loading facilities and landscaping.

12. The amended plans which were substituted by the Tribunal on 4 August, 2003 provide for a mixed use development comprising retail floorspace of 2,018 m2 at ground level, 93 apartments and car parking for 245 vehicles. The main changes to the plans compared with the original scheme are summarised as follows;

* Deletion of the supermarket and reduction in the retail floorspace by 612 m2.

* Reduction in car parking from 327 to 245 spaces.

* Changes to the mix of apartment types while retaining the total number of 93 apartments.

* Reduction in the overall height of the development and the deletion of level 5 of the southern building.

* Increase in the separation of the north and south towers.

13. We were provided with a detailed description of the site and its environs by the Council and a number of the submitters and witnesses and it is not necessary for us to repeat those descriptions in detail here.

14. The site is located on the south eastern corner of Upper Heidelberg Road and Kiernan Avenue on the southern end of the Ivanhoe Shopping Centre. The site consists of a number of vacant lots fronting Upper Heidelberg Road and other lots facing Kiernan Avenue which comprise two dwellings and a medical centre.

15. Vegetation on the site consists of an English Oak in the rear of 1 Kiernan Avenue which has been identified in the Council's Significant Tree and Vegetation Study, and a number of elms located at the rear of the site.

16. The site forms part of the Ivanhoe Shopping Centre, and surrounding land uses comprise a mix of commercial, entertainment, residential and retail uses.

17. The review site is zoned Business 1 pursuant to the Banyule Planning Scheme. The use of the land for the purpose of both shop and dwelling are section 1, permit not required uses in the zone. A permit is required to construct a building or construct or carry out works.

18. There are three overlays applying to the land;

19. A permit is required to remove, destroy or lop any significant trees specified in the table to the Environmental Significance Overlay. It is not proposed to remove any of the trees specified in the table as they relate to this site.

20. A permit is required under the Vegetation Protection Overlay to remove, destroy or lop any tree, unless falling within an exempted.category.

21. A permit is required to construct a building or construct or carry out works under the Design and Development Overlay. Under the decision guidelines of the overlay, the responsible authority (and on review the Tribunal) in considering an application to use, subdivide or develop land must have regard to the Urban Design Guidelines for Ivanhoe Shopping Centre adopted by the Council on 8 April, 2002.

22. A permit is required under clause 52.06-1 to reduce the number of car parking spaces required to be provided by the Table to clause 52.06-5.

23. The relevant planning policy framework is contained in the following clauses;

* Clause 18.02 Car Parking and Public transport Access to Development

* Clause 22.07 residential Neighbourhood Character Policy

24. As we have stated above, following the consideration of the amended plans substituted by the Tribunal on 4 August, 2003, the sole issue in dispute between the permit applicant and the Council relates to the Council's requirement for further modifications to the plans encompassed within condition 1(k) of the Council's resolution of 8 September, 2003. These further modifications in effect seek to achieve increased setbacks of the building from the eastern boundary of the site and an increased setback of the northern "tower" from the Upper Heidelberg Road frontage.

25. At the final hearing Mr Cicero advised that if we determined to grant a permit, Council would make the necessary arrangements with the owner to amend or end the Section 173 Agreement if it considered that the amended proposal did not comply with that Agreement and in particular the 2002 Design Guidelines.

26. Clause 3.1(2) of that Agreement required the owner to:

"ensure the Development is generally in accordance with the Design Guidelines and in particular the site specific guidelines for the land as detailed on pages 24-28 (both inclusive) of the Design Guidelines."

27. The determination of the questions of law included a decision that the Design Guidelines referred to in the Agreement meant a reference to the 2002 Design guidelines which had replaced the 1999 version referred to in the Agreement.

28. Whilst the building height of the amended proposal is grater than that in the Design Guidelines, we consider as a determination of a question of law that the amended proposal is generally in accordance with them. A relevant consideration is that they did not contemplate the development of 1-5 Kiernan Avenue which is included in this development, and one aspect of the heights referred to in the Guidelines is that they appeared designed to preserve the amenity of the existing buildings on those sites. However no those sites are included in the development that constraint is no longer applicable. Also whilst the overall height is greater we consider the configuration of the residential towers and their front and rear setbacks and relationship with Upper Heidelberg Road produces an outcome which is generally in accordance with what we perceive is the intended outcome of the Guidelines.

29. Mr Course made a further written submission in which he criticised the proposed traffic management, vehicular access and egress arrangements associated with the substituted plans, and raised concerns with respect to the pedestrian safety aspects of the proposal. Mr Course was also critical of the height and visual dominance of the proposal. Mrs Roberts also made a further submission in which she generally supported the Council's decision to require increased setbacks as a means of reducing the visual impact of the proposal especially when viewed from distant vantage points to the east, and as a means of reducing noise impacts from the proposal on the residential area to the east. Mrs Roberts submitted that the increased setback from Upper Heidelberg Road is warranted to better integrate the development with the scale and form of the Ivanhoe Shopping Centre. Mrs Roberts also raised concerns about the potential adverse impacts of the development on the retained trees along the eastern boundary, and referred to several other detailed design matters which in her submission have not been adequately resolved.

30. We are satisfied that the amended proposal achieves an acceptable outcome with respect to the zoning of the land, the applicable overlay controls and the applicable policy framework. In particular we are of the view that the proposal is consistent with the outcomes sought to be achieved by the Urban Design Guidelines for the Ivanhoe Shopping Centre. In this respect we note that the amended proposal was the subject of a comprehensive assessment by the Council's town planners which formed part of the report presented to the Council at its meeting on 8 September. A copy of that report was provided to us at the hearing. We agree with the assessment of the Council officers that the proposal achieves a high degree of compliance with the provisions of the urban design guidelines. In terms of those elements where the proposal is at variance with the prescriptive requirements of the guidelines, these are primarily related to the heights and setbacks of various components of the building. In assessing the merits of the proposal and recommending that variations from the guideline's prescriptive requirements be approved, the officer said;

"It should be noted that it is considered appropriate that the higher level (i.e. RL 66) should extrapolate over a wider area given the proposal incorporates the land at 1-5 Kiernan Avenue which was excluded form the guidelines when they were developed. If the heights within the guidelines are extrapolated in this way, then the extent that the building exceeds the height guidelines is 2.2 metres plus small additional heights of around 1.2 metres for the lift overruns.

Given the appropriate design outcome for the site, it is considered that the variation in height is appropriate and will ensure that the development meets the objectives sought by the guidelines........."

31. We also agree with the officer's assessment about the bulk and scale of the development and the visual impact of the development when viewed from the east. The officer's report states that;

".........Although the height of the building will protrude above the tree canopy to the rear at various points, these will be primarily longer distance glimpses rather than an overwhelming building bulk impacting impacting on the nearby residential properties. Views from the nearby properties will be obscured or screened, mainly by the trees to be retained across the rear of the site and adjoining railway reserve. For this reason, it is considered that substantial alterations to the building to address building bulk concerns are not necessary".

32. Mr Biasci, a town planner called to give evidence on behalf of the permit applicant, also provided a useful assessment of the context of the review site's interface with the residential area to the east. It was his evidence that the interface could not be regarded as being particularly sensitive because it comprises a lane (Country Lane) substantial vegetation which is to be retained, and a railway line. In that context it was Mr Biasci's view that the further modifications to the building sought by the Council's condition 1(k) are simply unnecessary.

33. We regard the assessment of the proposal and of its visual and amenity impacts by the Council officer and Mr Biasci as thorough, balanced and accurate and we are unable to contribute anything further to those assessments. Suffice to say, we regard the further amendments to the proposal sought by the Council's condition 1(k) to be unwarranted.

34. Our comments apply equally to the additional setback sought to be imposed for the north tower from Upper Heidelberg Road. The proposal successfully responds to the urban design guidelines by presenting as a predominantly two storey form at the street level and the fact that the upper levels will be visible from some vantage points along Upper Heidelberg Road does not prejudice this outcome.

35. With respect to the traffic management and pedestrian safety issues, we acknowledge the concerns expressed by Mr Course and Mrs Roberts regarding these matters but we do not think that this development gives rise to additional traffic volumes or changes to traffic patterns within the surrounding street network which are not capable of being adequately managed. We note that Vic Roads has not objected to the application subject to the imposition of permit conditions and that the Council's traffic engineers have also supported the proposal subject to conditions. We accept the evidence of Mr Hunt with respect to these matters.

36. In response to Mrs Roberts concerns about the potential adverse impact of the development on the trees which are to be retained, Mr Galbraith, an arborist was called to give evidence. It was Mr Galbraith's evidence that the most significant tree on the site, the large English Oak located near the eastern boundary is capable of being retained without long term damage provided appropriate procedures are implemented to protect it during construction. Mr Galbraith was also of the view that the row of Elms along the eastern boundary can also be retained. We accept Mr Galbraith's uncontradicted evidence on these matters.

37. We note that the Council has proposed comprehensive conditions relating to the protection of the trees to be retained on the site. Mrs Roberts submitted that a financial bond in the order of $10,000 ought to be imposed to ensure that these conditions are complied with. While we acknowledge that there are circumstances in which the imposition of a bond may be appropriate, we do not think that those circumstances apply here. The procedures recommended by Mr Galbraith have been incorporated into the permit conditions and these have not been challenged by the permit applicant. The procedures required by the conditions are also relatively straight forward and are capable of being enforced.

38. For the forgoing reasons the decision of the responsible authority is set aside and it is directed that a permit issue in accordance with the attached Order.