Does the development appropriately respond to the planning policy framework?

1. The proposed apartment building would be part five storeys and part six storeys. It would have a maximum height of 19.34 metres at the southwest part of the site where the land is lowest. The existing single storey healthcare building and a single storey dwelling would be removed. All the vegetation on the site, except for two Canary Island Palm trees would also be removed.
2. The second ground of refusal issued by the responsible authority is the building would have an overbearing physical impact on its residential neighbours and it fails to provide adequate space for landscaping.
3. In its submission, the responsible authority says that while the amended proposal is a significant improvement compared to the application plans, the building remains unduly tall. It would exceed the preferred building height in Design and Development Overlay Schedule 11 by up to 3.3 metres in some places.
4. The responsible authority also was critical of the massing and form of the building. It says the upper level setbacks are insufficient to mitigate its height and mass, as viewed from the two adjoining streets. It also says the setbacks of four to six metres are insufficient to provide adequate landscaping that would screen the building in the public realm.
5. The respondents were very critical of the building. All the respondents consider that the building is unduly tall and it should at least comply with DDO11; that is, be at least one storey less in height. Ms Goivas, Ms Toole and Ms Phillips say the setbacks to the boundaries should be greatly increased, and the building's height and site coverage should be considerably reduced. The respondents also thought that the existing health services building (a former local hospital that has served the local community for many decades) has heritage significance and it should be conserved. The respondents also say the building would dominate the church located on the north side of Waverley Avenue.
6. Ms Toole and the other respondents thought the building would have a modest architectural quality, it fails to achieve the design quality expected in Ivanhoe and the materials would age poorly.
7. In his written submission dated 17 July 2017, Mr Andrianopoulos says that the height of the building unreasonably exceeds the preferred maximum building height of 10 metres in a General Residential Zone. He says the height of the proposed building within the part of the land that is included in the GRZ1 fails to provide a transition to surrounding residentially zoned land. This failure to provide a transition is inconsistent with the objectives and requirements of DDO11. He says the proposal should be refused.
8. Ms Marshall resides at No. 3 Waverley Avenue, adjoining the western boundary of the review site. She objected to the development, but her advocate advised that she had no objection to a permit being granted provided the setbacks of the third and fourth levels to that boundary are increased. These changes are acceptable to the applicant.
9. The proper planning assessment of the height and massing of a new development is to examine its response to the site's features and context, and then apply the planning controls and policy framework to form a view as to the reasonable expectations of development. The final stage is to assess the quality of the building's design, siting and massing.

1. Turning firstly to the site's features and context, its most notable feature is its size. The site comprises five titles that could be sold and developed separately. As a single site, it is large, with an area in the order of 0.4 hectare. A site of this size, within a major activity centre, is a rare development opportunity, and is a feature that must be given weight.
2. The site is relatively unconstrained. It has a regular shape and access to a high level road and a local street. Its two other boundaries abut five residential properties, hence it has limited sensitive interfaces. It has a modest slope of in the order of 4.3 metres diagonally across the site from west to east. The highest parts of the site adjoin the residential interfaces, hence there is some sensitivity at these boundaries.
3. No Heritage Overlay applies to the site and consequently I cannot give submissions that purport it has heritage significance any weight. The Tribunal must apply the scheme as it applies at the time it makes its decision. Whether the site has heritage significance is a matter that is properly determined through a planning scheme amendment process.
4. The site has extensive vegetation particularly along its boundaries. The vegetation includes tall canopy trees and modest sized bushes. Two arborist reports classify the existing vegetation as having low retention value. Only two trees have a high retention value, these being Canary Island Palm trees.
5. The respondents say a large and prominent Cypress tree on No. 19-23 Upper Heidelberg Road, near the street frontage, should also be retained for its contribution to the streetscape. This tree has a low retention value and I discuss the reasons in the landscape and amenity sections below why I have decided it should not be retained.
6. Overall, it is my view that the site is a large and relatively unconstrained site, with only two trees and its residential interfaces requiring careful design responses.
7. Turning to the site's context, it is within a predominantly residential setting that comprises dwellings to its south, west and northwest. The context also includes its location at the southern end of the Ivanhoe major activity centre. It is at the entry or end of a long ribbon commercial centre, and it is opposite a large vacant site on the east side of Upper Heidelberg Road. A church on the north side of Waverley Avenue opposite the review site separates it from the activity centre.
8. The site is conveniently located near two train stations and multiple bus services that operate from the activity centre. The centre also provides a wide array of shops, cafes, business services and employment opportunities. It is also conveniently located to Darebin Parklands, schools and community and civic buildings. It was common ground that the site is well located to key urban services and this proximity should be given weight in this review.

What directions are provided by the planning policy framework?

1. I turn to the planning controls and policy that shape the reasonable development expectations for the site. The site is within two zones. Most of the site is included in the Commercial 1 Zone, the purposes of which are to implement planning policy and to provide for residential uses at densities complementary to the role and scale of the commercial centre.
2. No. 1 Waverley Avenue, in the northwest corner of the site, is included in the General Residential Zone. The purposes of that zone are to implement planning policy, to encourage development that respects the neighbourhood character of the area and to encourage a diversity of housing types and housing growth, particularly in locations offering good access to services and transport.
3. The responsible authority says the inclusion of part of the site in the GRZ is a mapping error and it should be in the C1Z. I must apply the scheme as I find it and consider that development of this part of the site has to comply with the GRZ.
4. I am satisfied that the purposes of both zones and the planning policy clearly identify this site to be within a major activity centre and an area of substantial change. I rely on the following parts of the planning policy framework for this finding.
   • Development is to contribute to Melbourne becoming a more compact city that accommodates most of the forecast new dwellings within its established suburbs (clause 9);
   • Planning is to provide a supply of land to meet projected demand for housing, particularly opportunities for the consolidation, redevelopment and intensification of existing urban areas (clause 11.02);
   • Concentrate major residential developments in activity centres which provide a variety of land uses and are highly accessible to the community (clause 11.03);
   • Encourage a diversity of housing types at higher densities in and around activity centres (clause 11.03);
   • Facilitate increased housing in the established areas to create a city of 20 minute neighbourhoods close to existing services, jobs and public transport (clause 11.06);
   • Support housing growth and diversity in defined housing change areas and redevelopment sites (clause 11.06);
   • Direct new housing to areas with appropriate infrastructure (clause 11.06);
   • Increase the proportion of new housing in designated locations within established urban areas and reduce the share of new dwellings in greenfield and dispersed development areas (clause 11.06);
   • Encourage higher density housing development on sites that are well located in relation to jobs, services and public transport, and reduce the demand for development on Melbourne's fringes (clause 11.06);
   • Locate new housing in or close to activity centres and in urban renewal precincts and sites that offer good access to jobs, services and transport (clause 16.01-2);
   • Encourage higher density housing development on sites that are well located in relation to jobs, services and public transport (clause 16.01-2).
5. I am satisfied that the purposes of the two zones and the State Planning Policy Framework clearly encourage sites within and close to major activity centres and public transport services to be developed intensively to provide greater housing choice and to contribute to making Melbourne a more compact city, so more people can access services within 20 minute neighbourhoods.
6. I am satisfied that the Banyule municipality is to play its part in meeting the above broad planning objectives. The scheme accepts there will be further residential development in Banyule. It sets out a targeted approach to where intensive residential development is to be located, so that change in other residential areas can be limited to protect their heritage or neighbourhood character.
7. I agree with the responsible authority's submission that the review site is identified as being within an area of substantial change based on the following provisions in the Municipal Strategic Statement and local policy.
   • Ivanhoe is identified as one of three activity centres (clause 21.02);
   • Encourage housing growth to locate close to activity centres and the Principal Public Transport Network (PPTN) (clause 21.04);
   • Provide a greater diversity of affordable housing opportunities in appropriate locations (clause 21.04);
   • Ensure that development respects and contributes to the desired future character of residential neighbourhoods and the identity of activity centres in a manner that supports varying degrees of housing change (clause 21.06);
   • Support a substantial proportion of new housing to be located within or close to activity centres and the PPTN (clause 21.06).
8. The Housing Framework Map in clause 21.06 shows the site located in a Diversity Area. These areas will provide for shop top and apartment living in higher density mixed use and residential developments. These areas include strategic redevelopment sites that provide for higher density housing. Diversity Areas are at the top of the hierarchy of the preferred areas that are to accommodate the additional dwellings in Banyule. All other areas are to have less change than is envisaged in the Diversity Areas. I also note that the residential areas adjoining the review site are designated as Accessible Areas, the second highest area of change. These areas are therefore also expected to change.
9. These themes are continued in clause 21.08 Local Places. Ivanhoe activity centre is identified as a place of strategic significance. New development is to provide more diverse housing choices and to enable more people to live close to the Ivanhoe activity centre. In terms of design responses, the ridgeline will continue to be highly respected. New developments are to have substantial trees and vegetation to protect and enhance Ivanhoe's neighbourhood character.
10. The review site is within Precinct 5 that includes the kilometre long ribbon retail strip along Upper Heidelberg Road. The vision for Precinct 5 is to retain its unique streetscape, with retailing at the ground floor and buildings that have a base and their upper levels setback. Buildings should have a mix of uses within them.
11. Built form objectives include directing larger scale development to strategic sites. Underdevelopment should be avoided by requiring development to be consistent with the preferred maximum height limit of the precinct guide. Visual bulk along Upper Heidelberg Road is to be managed by providing two storey facades to the street, with upper levels set back behind, and visual breaks should be provided in facades. The frontages of the site have landscaping significance.
12. New buildings are to be designed to:
    • Enhance a sense of arrival in gateway locations (the intersection of Upper and Lower Heidelberg Road) through visually interesting buildings and landscaping, as well as artwork;
    • Respond to the site on the opposite side of Upper Heidelberg Road which is to be developed as a gateway site;
    • Respond to the prominent form of the two churches in the precinct are to be respected. However, the church on the north side of Waverley Avenue is not listed in the clause as key building to which views are to be retained;
    • Provide an appropriate interface between the diversity area and adjoining accessible residential area.
13. In my view the general policy directions in the purposes of the two zones, State planning policy and clauses 21.04, 21.06 and 21.08 are most clearly expressed in DDO11. It provides the most specific guidance as to the height and massing of new development that is envisaged on this site.
14. The review site is within DDO11-5 (Precinct 5, Upper Heidelberg Road Precinct). The design requirements for this precinct are that buildings should have lower level podiums with a consistent street wall height. Buildings should not exceed the maximum preferred height, although it is not a mandatory height limit. The preferred maximum height for this site is 16 metres due to the site's slope.
15. Buildings should also comply with the preferred setbacks to boundaries. Buildings in non-residential zones should be constructed to side property boundaries to a preferred height of 9 metres or three storeys. Buildings in the residential zones should be setback in accordance with Standard B17 of clause 55. Otherwise buildings should be setback in accordance with the appropriate setback standards in DDO11.
16. DDO11 encourages the facades to be articulated, which is defined as the elevation that is visible from the street to be designed to add interest to the street. I do not agree with the responsible authority that the map to DDO11 shows the frontage to this part of Upper Heidelberg Road requires the frontage to be active and engaging, as this designation applies to Upper Heidelberg Road further north of the site.
17. DDO11 also includes numerous design objectives that relate to height, setbacks, overshadowing, design and acoustic amenity. I observe that they apply to all the land affected by DDO11, and hence need to be applied to each site in a contextual manner. The objectives that I consider to be relevant to this review include:
    • Upper storey elements are not to be unduly bulky or visually intrusive, and enable a transition in height to surrounding lower scale buildings;
    • Where adjoining residential zones, provide a transition in height, setbacks and vegetation to protect the visual and acoustic amenity of existing dwellings;
    • Step down the built form on sloping sites;
    • Not unreasonably diminish sunlight access;
    • Provide high quality, contemporary, well designed buildings;
    • Direct larger scale developments to key development sites;
    • Protect and enhance vegetation cover and encourage landscape improvements;
    • Ensure development does not adversely affect the significance of nearby heritage places;
    • Ensure that the colours, materials and finishes of new development complement the texture and fine grain nature of the surrounding area.
    • A three storey podium and upper level setbacks behind the base is preferred.
    • Building facades are to be well articulated and should address the street frontages.
    • Vehicle entries are to be recessive and avoid fragmenting footpaths.
18. I now turn to the proposal's response to the site's features, context and the above planning policy framework.

Is the design appropriate having regard to context and planning policy framework?

1. It was the expert evidence of Mr Biacsi and Mr Hutson that the building is a good response to the site's features, context and planning policy framework. Mr Biacsi thought that a 0.4 hectare site, located on the edge of a high level activity centre, should be intensively developed to deliver the broad planning policy objectives of housing diversity, 20 minute neighbourhoods and compact city. He thought that a less intensive development would fail to use the site efficiently, and be contrary to policy.
2. He also thought that the building is well designed, with considerable articulation, a recessive upper level and high quality materials. He says it has a high level of compliance with Clause 15.01, the purposes of the zones, DDO11 and the Design Guidelines for Higher Density Residential Development (as clause 55 does not apply).
3. Mr Hutson's expert evidence was that the building is well composed and articulated. It contains rectangular elements over the upper ground and first levels on the east and north facades that create a mid-level break between a podium base and the recessed upper levels. It was his urban design evidence that the east, west and north elevations are articulated with deep recesses, balconies and the box like framing elements that substantially reduce the building's visual length and bulk.
4. He says this articulation and framing meets the design objectives of DDO11, and greater upper level setbacks are not required to distinguish the podium from the upper levels. He says the uppermost storey would be largely concealed from the public realm and its neighbours.
5. It was his expert design evidence that the building is carefully and skilfully designed, that it responds well to the site's features and slope, and it would be a high quality outcome for the site and the activity centre.
6. I am satisfied that the proposed height, massing and design of the building complies with the planning policy framework that is provided by the purposes of the C1Z, GRZ, clauses 15.01, 21.04, 21.06, 21.08 and DDO11.
7. With regard to height, the preferred height in DDO11 is 16 metres (due to the slope). It complies with this preferred height along the west elevation where it abuts No.3 Waverley Avenue, and it largely complies along the south elevation where it also directly abuts dwellings.
8. The building exceeds this preferred height by 3.3 metres principally along the Upper Heidelberg Road frontage. I think that an exceedance of the preferred height by one storey is acceptable. It is a very modest exceedance. It is predominantly located along a frontage to a main road that is sufficiently wide and robust to absorb a six storey building.
9. The top storey that would be outside the preferred building envelope would be very recessed to all boundaries. It would have setbacks of 10.8 metres to Upper Heidelberg Road, 9.7 metres to Waverley Avenue, 15.7 metres to No. 3 Waverley Avenue (except for a part near the northwest corner that would be setback 11.2 metres) and 6.6 to 11.6 metres to the south. It would be largely unseen in most views, and where it is visible, it will be highly recessive behind the parapet of the level below.
10. Finally, the upper level would comprise a dark cladding that Mr Hutson says would enhance its recessive appearance. I agree with his recommendation that the eaves of the top storey should match the dark cladding.
11. It is my view that one storey above the preferred height does not create a building of great mass and bulk that would be imposing or out of place. In views from both the public realm and the adjoining properties, it will appear to be largely in accordance with DDO11. It will match the reasonable expectations for the redevelopment of the site.
12. I am satisfied that it also complies with the objective and design requirement in DDO11 to provide a transition in height and mass to the surrounding dwellings and to step down on sloping sites. The building steps down because it presents a four storey façade to No. 3 Waverley Avenue to the west and to the dwellings to the southwest, with a very recessed fifth level above that will be screened by the parapet below.
13. It would be a six storey façade to Upper Heidelberg Road. There is no requirement in DDO11 or general planning reason to step the building down the slope to Upper Heidelberg Road. I think the design response of placing the greatest height to a main road is entirely reasonable. The stepping down should be to the sensitive residential interfaces and this is achieved.
14. I am not persuaded there is any need to reduce the height of the building in the northwest corner to accord with the preferred height limit of 9 metres in Standard B7 of clause 55. The standard does not apply as the building exceeds four storeys. Even if it did apply, the objective of clause 55.03-3 is that a building comply with the preferred character, which in my view is specified by DDO11, and there is substantial compliance.
15. The south façade would be separated into two distinct and small buildings that would minimise the visual bulk. The setbacks to the boundaries comply with DDO11 and Standard B17 of clause 55.
16. I accept that the site adjoins places with heritage value. I am satisfied the heritage value of these places will not be diminished by this development. They are well separated from this building, they are proud and prominent buildings in their own right. They are located in generous garden settings, and no evidence or heritage referral advice is before me to suggest the development would diminish their heritage value by competing for views or being unduly dominant.
17. The respondents say the building's design does not achieve a high quality of architecture that is suitable for Ivanhoe. This matter is usually highly subjective and in any group of people there are often multiple opinions as to the quality of the architecture.
18. I think this building does not set out to be prominent or eye catching but it is well composed. This building does not need to be iconic, outstanding or superlative. This is not a gateway site in clause 21.08 or in the DDO11. It should not be so iconic or eye catching that it detracts from the gateway site opposite or overwhelms the nearby heritage places.
19. I agree with Mr Hutson that it is a well composed, attractive and integrated design. I think the evident framing elements at levels one and two and the recesses and balconies make it interesting and attractive. The framing elements differentiate the "base" from the levels above as sought by DDO11. There is sufficient differentiation in the two street facades to hold the eye for short glimpses. However, in my view the design is neither so bold nor so mundane that people would be likely to regard it as eye catching and dominant, or unduly bland. In my view it is a polite, well composed apartment building that will be a pleasant, but not prominent building.
20. I accept that it will screen the church to the north in some views, mostly from near the corner of Upper and Lower Heidelberg Roads. This is not a problem. The church has no prominence in clause 21.08 or DDO11, and it has no weight as a heritage place. Presently the church has little presence in the streetscape as it is unseen in longer distance views along Upper Heidelberg Road, largely due to the large Cypress tree. Views of the church in the longer distance streetscape will not be changed by this development.
21. The church and the spire will continue to be visible in views from Upper Heidelberg Road from approximately 35 metres south of Waverley Avenue. It continue to be prominent in views within that street and also from the north. This development will have little effect on its presence in the area compared to the existing situation.
22. Finally, with regard to the quality of materials, I accept Mr Hutson's advice that the materials and colours are acceptable and they will perform well over time. I have no evidence or examples before me that the particular materials shown on TP.700 have proved to be deficient or substandard in other developments. I also think that the owners and occupiers of the development would prefer to live in a well maintained building and will ensure that it continues to be a pleasant looking building.
23. With regard to possible changes to the materials schedule before me that might introduce poorer quality materials, I have to rely on the responsible authority to ensure any changes will also be a high quality. I am confident that they have the professional expertise to ensure the building comprises high quality materials.

Should the development include more commercial floor space?

...the use of the site for solely residential purposes is considered to be contrary to the mixed use role of the Ivanhoe activity centre and contrary to clause 17.0, clause 21.04, clause 21.08 and the purposes of Commercial 1 Zone.

1. The applicant says that a commercial tenancy with a floor area in the order of 160 square metres and associated off street car parking has been included in the northeast corner of the development in response to this ground. The ground floor setbacks to the northeast corner would enable an outdoor dining area to also be provided.
2. The responsible authority says this proposed tenancy is too small, and it expects that more commercial floor space is provided, particularly along the Upper Heidelberg road frontage. It says the land, together with land to the north and south, was recently rezoned to the C1Z as part of Amendment C93, and no objecting submissions were received to the amendment. It says the land is now within a Commercial 1 Zone and the review site is within a major activity centre. It says that over time there will be additional demand for increased services and retail shops due to the population increase that is occurring in and around the activity centre. This site should accommodate both commercial and residential uses, as required by policy.
3. Mr Crack tabled a draft economic report dated May 2017 prepared by Urban Enterprise. It describes the Ivanhoe activity centre to have a significant mix of professional service businesses, particularly in health care. It forecasts a continued growth in professional services, and recommends that additional commercial floor space be provided in new mixed use developments to suit small and medium sized organisations.
4. The responsible authority says that at a minimum, the ground level floor space that faces Upper Heidelberg Road should have 3.8 metre floor to ceiling heights to provide flexibility to accommodate commercial purposes.
5. The applicant says the site is physically and visually disconnected from the major activity centre, and commercial floor space is unlikely to be attractive. It says the floor to ceiling heights of the dwellings facing Upper Heidelberg Road can be increased by lowering the ground floor levels, but this is unnecessary.
6. The applicant tabled a letter from Deep End Services that concludes the review site is not appropriate for retail floor space. It concludes that the site is remote from the core of the activity centre, pedestrian activity adjacent to the site is low, and the environment is not suitable for retail and cafes. It says that commercial tenancies in the building, including cafes are likely to perform poorly.[3]
7. Mr Biacsi says the development should not be required to include commercial floor space. He says the centre is already more than one kilometre long, and the site is separated from the commercial core by the church on the north side of Waverley Avenue. He says that residential use at the ground floor is consistent with the purposes of the two applicable zones.
8. With regard to planning policy, in addition to the policy outlined above, the site is at the southern end of precinct 5 of the Ivanhoe activity centre. This precinct extends along Upper Heidelberg Road reflecting the long commercial core. Clause 21.08 encourages a focus of retail activity on the ground floor of buildings within this precinct, with offices and dwellings on the storeys above. The clause encourages retail, hospitality and entertainment on the ground level, with active frontages to streets. Further strategies are to expand retail and office uses within the shopping precinct and to expand employment opportunities.
9. Notwithstanding the above general policy support, I am not persuaded for the following reasons that it is necessary to provide more commercial floor space in this building, in this location.
10. Firstly, accommodation is an as of right use in the General Residential Zone that applies to the western part of the site, and it is a permitted use in the Commercial 1 Zone. It is a section 2 use only because of the requirement that the ground floor be no wider than two metres, so as to not disrupt consistent commercial frontages to the street. It is a permitted use and it is appropriate for the site to be used largely for residential if it satisfies policy and the decision guidelines for the zone, as with any section 2 use.
11. I am satisfied that the use of the land for residential purpose complies with the decision guidelines for the use of land in a C1Z. The application is accompanied by all the required information, and it would not impose unreasonable amenity impacts on adjoining or nearby residential uses, as I discuss in the relevant sections below.
12. I would give the responsible authority's ground of refusal greater weight if the review site was located within a consistent and unbroken row of commercial frontages to Upper Heidelberg Road, that is, if it is within the core of the commercial centre. However, I agree with Mr Biacsi that the review site is not within the core of the centre and does not abut, or is opposite commercial frontages.
13. Secondly, I am satisfied that DDO11 encourages the interfaces to Upper Heidelberg Road and Waverley Avenue to be articulated frontages rather than activated frontages. An articulated frontage is defined in DDO11 as being a building elevation that is designed to be visible from a street or laneway and designed to add interest. Hence, in my view DDO11 does not require frontages to have commercial interfaces along this part of Upper Heidelberg Road.
14. Thirdly, I might agree with the council if it is clear that some major retail or office use is keen to locate in the centre, and this is one of only a few suitable sites that are available in the centre. However, the responsible authority was unable to identify an unmet demand from specific types of shops or businesses that are keen to locate in the activity centre but have been unable to find floor space in the centre. I am not persuaded there is one business or a group of businesses that have been seeking commercial space in Ivanhoe and would locate on this site shortly after the completion of the building. I am not persuaded by a draft high level strategic report there is a pending unmet demand.
15. Fourthly, I am also not persuaded that this is one of only a limited number of sites within the activity centre where further commercial floor space can be provided. The responsible authority did not say that further opportunities are limited and this site is rare and should be quarantined for commercial uses. I therefore conclude that if there is a demand for further commercial floor space, it can be provided elsewhere in the centre, closer to the retail core, where businesses can better support each other.
16. Finally, I agree with the permit applicant and Mr Biacsi that the site is unlikely to be an attractive commercial location. It is remote from the core of the centre. It is visually separated from the commercial core by the church and the curved alignment of Upper Heidelberg Road. It would have limited pedestrian traffic passing the site as it is not on a route to a destination such as a train station or a supermarket. It would be unlikely to attract spontaneous visitors on foot or in vehicles. The requirement to provide landscaping and a setback along Upper Heidelberg road further reduces its attraction for commercial tenancies as they would have poor exposure to passing traffic. Hence, the site and building would be attractive to a limited range of businesses.
17. Furthermore, while I accept that some commercial businesses could operate from this site, I think they would tend to be professional services that are relatively footloose and do not rely on a local catchment. I also think they would tend to be those relying on relatively low rents.
18. I have considered removing the floor space allocated to the shop/café as I think that a struggling business or vacant tenancy could detract from the attractiveness of the building and the amenity of the future residents. The applicant did not request this amendment to the plans, and hence I am prepared to support the plans before me, and hope that eventually the floor space will be used for a business that positively contributes to the building. I would have no objection to the commercial floor space being identified on the final plans as an office as I think this use is more likely to attract an end user[4].
19. For the above reasons I dismiss this ground of refusal.

Would the proposed landscape plan be acceptable?

Inadequate space has been provided throughout the development to provide canopy tree planting and landscaping adequately soften views of the development from the street and neighbouring land and enhance the landscape character of the area, contrary to clauses 15.01, 21.04, 21.06, 42.02 and 43.02.

1. Mr Patrick prepared expert evidence that includes a landscape plan for the development. He says the plantings comprise predominantly native plants and trees.
2. He proposes to plant nine Lowanna Spotted Gum trees within the four metres setback to Upper Heidelberg Road. These would grow to a height of approximately 10 metres. The trees would be augmented by an evergreen hedge and ground covers that would provide colour and he says, some drama, to the streetscape.
3. Sweeper Weeping Lilly Pilly would be installed along the boundary to No.3 Waverley Avenue with a height of three metres. Mr Patrick accepts that their growth and height will be limited by the large Elm trees on the adjoining property. They would be augmented by ground cover planting.
4. Three Water Gum eucalypts would be planted along the southern boundary in metre deep planters, with a hedge of Bush Christmas Lilly Pilly.
5. The central communal open space area would have two central planters with Blueberry Ash trees, both species being very shade tolerant.
6. Planting along the Waverley Avenue frontage would comprise Lowanna Spotted Gum trees, augmented by Orange Jasmine hedges and ground cover plants.
7. The two Canary Island Palms would be relocated to the Waverley Avenue frontage, adjacent to the pedestrian entry to the commercial premises.
8. The respondents were highly critical of the landscape plan. Ms Roberts says the plant list should include more species that are indigenous to Ivanhoe. She suggested multiple other species. The respondents say the Lowanna Spotted Gum trees should be replaced by other eucalypt trees including Lemon Scented Eucalypts that are indigenous to the local area, are taller. They say these species would screen more of the building, and would support local flora and fauna. Ms Giovas thought an existing Cypress pine tree that fronts Upper Heidelberg Road should be retained as it is significant in the streetscape.
9. I am satisfied with Mr Patrick's landscape plan and I see no reasons to amend the plan.
10. While the large Cypress pine tree that fronts Upper Heidelberg Road is visually prominent, two arborist reports, including one from the Council agree that it is in poor health, with a limited life expectancy. The density of its foliage would also limit the amenity of the dwellings behind it as it would significantly limit daylight and outlook.
11. With regard to the criticism that the species proposed by Mr Patrick are not indigenous to Ivanhoe, I agree with him that this is not the predominant criteria that should be used to select species in a landscape plan. The role of landscaping is to provide a vegetated setting rather than to hide a building from view. The site is on a main road, within a high order activity centre, selected for substantial change and it is an attractive, well composed building. The landscape does not need to hide it from public view.
12. In my view the Lowanna trees will be sufficiently tall to provide a notable entry to the centre, and they will filter views of much of the building as viewed from the two adjoining roads. They will provide an attractive setting for the building, and contribute to a landscape entry to the activity centre.
13. I also agree with Mr Patrick that the landscaping should be selected on the basis of its durability and likelihood of success. It should also be selected on the basis of the amenity it would provide to future residents in terms of outlook, daylight and privacy. I am satisfied that the species proposed by Mr Patrick perform well on these criteria as they have been widely utilised in other developments.
14. While the respondents had carefully investigated alternate species, they did not persuade me that the species proposed by Mr Patrick would be unsuitable or inappropriate. In my view Mr Patrick demonstrated that the proposed species would respond to their particular contexts, including shade and sunlight, irrigation, and propensity to grow with limited maintenance and care. I cannot reasonably conclude that his proposed species are unsuitable or unlikely to grow to maturity.
15. He also observed that while many of the alternate species proposed by the respondents were indigenous to Ivanhoe, they prosper in natural settings and large gardens/reserves. It was his expert evidence that many would perform poorly in the more confined and intensively used spaces around an apartment building. I accept his evidence in regard to their likelihood of successful growth and longevity.
16. With regard to the proposal to place two Canary Island Palm trees adjacent to the commercial premises, I accept the respondents' criticisms that they may collide with overhead wires, and they may be too close to balconies where their coarse leaves could cause problems/injuries.
17. Mr Patrick was uncertain as to these issues, but thought there would be sufficient space to relocate these two trees generally within the northeast corner and avoid the overhead wires and balconies.
18. I think this is a matter to be resolved through the endorsement of final plans that will form part of the permit. I wish to be clear that the Canary Island Palm trees are a feature of the site that must be retained. If they cannot be located as shown on Mr Patrick's plan, they must be relocated within the northeast corner and form part of the landscape plan. I will include a condition that ensures their retention.

Are the access, parking, traffic and loading arrangements acceptable?

1. A development that comprises a 150 square metres café and 112 dwellings (with 11 three bedroom dwellings) is required to provide 123 spaces for the residents of the dwellings, 22 spaces for visitors to the dwellings and six spaces for the staff and customers of the shop (151 spaces in total).
2. It is proposed to provide 192 car parking spaces in two basements and half of the ground floor. All the car parking spaces would be accessed via a double width driveway to Upper Heidelberg Road. Turns to and from the site would be limited to left turns only in accordance with Vic Roads requirements. The existing crossovers to the site would be closed and the kerbs reinstated.
3. Mr Hunt recommended that parking at the lower ground level should be allocated to residential visitors and staff/customers of the shop, and the car parking for residents would be located in the two basements accessed via a security gate.
4. He further recommended that the number of spaces on the lower ground floor should be reduced from 36 to 28 spaces. This would ensure that parking provision for the shop and residential visitors complies with clause 52.06-5 and the changes in the parking layout would improve the accessibility to the parking spaces on the ground floor.
5. The development is required to provide 33 bicycle parking spaces. It is proposed to provide 34 bicycle parking spaces, comprising 30 secure spaces within a secure compound on the ground floor and four spaces adjacent to the main pedestrian entry. The development hence complies with the scheme.
6. A ground of refusal issued by the responsible authority is:

The oversupply of car parking on the site is contrary to the transport sustainability objectives of clauses 21.02, 21.04, 21.07 and 22.05

1. I agree with the responsible authority that in general planning terms it is preferable to provide less rather than more car parking on sites that are within an activity centre and near to public transport. Less car parking should encourage customers, residents and visitors to use alternate transport modes.
2. I also accept that policy generally encourages sustainable development (clause 21.07-1) encourages use of walking, cycling and public transport to minimise car dependency (clause 22.05).
3. However, the responsible authority and the Tribunal on review are required to apply the provisions of the scheme. Policy is not to be applied as a control, but as a framework when discretion provided by the planning controls has to be exercised. Clause 52.06 provides that a permit may be granted to reduce the provision of car parking spaces. A development that provides the number of spaces required by clause 52.06-5 does not require planning permission in respect of the number of spaces to be provided. There is no discretion to be exercised, and therefore the policy directions contained in clauses 21.02, 21.04, 21.07 and 22.05 cannot be applied.
4. I agree with the applicant that the clauses would be operable only if planning permission is required to provide more than a specified maximum number of spaces. This might be enacted through a Parking Overlay as operates in Melbourne's CBD, under which permission is required to provide any car parking spaces.
5. As the Banyule Planning Scheme does not operate in this manner, I find that I do not have any discretion to exercise with regard to the number of car parking spaces. I therefore cannot support the fourth ground of refusal regarding car parking.

1. Mr Hunt estimates that the residents within the development would generate 4-6 vehicle trips per dwelling per day (and average of 4.79 movements per dwelling per day). He further estimated the commercial tenancy would generate 8 trips per 100 square metres per hour, or 80 trips per day.
2. It was his expert opinion that the development would generate 536 vehicle trips each day. Ten percent of these trips would occur in each of the peak periods. He says the development would add 54 vehicle trips to both the morning and evening peak traffic volumes.
3. The responsible authority and VicRoads consider the additional traffic would be acceptable. Vic Roads requires the movements in and from the site be limited to left in and left out turns and this is acceptable to the applicant.
4. The respondents say the additional traffic is unacceptable. They say the left in and left out turns would cause many vehicle trips to use the nearby local residential streets. They say these are already congested, and school children at a nearby primary school in Rocke Street will be less safe.
5. Mr Hunt's expert opinion was the additional traffic would have no adverse impacts on Upper Heidelberg Road or the local streets. He completed a SIDRA analysis that indicate the access point to Upper Heidelberg Road would operate at the excellent level. He estimates there would be up to 77 additional vehicle movements per day on Waverley Avenue as residents seek access to Upper and Lower Heidelberg Roads. He thought that up to eight additional vehicles per peak hour, or one vehicle every 7-8 minutes would be acceptable and well within the capacity of the local streets.
6. I agree with his analysis. An additional vehicle movement every eight minutes in the peak period on the local streets will be negligible, and is a necessary and inevitable outcomes of encouraging substantial change in and around the Ivanhoe major activity centre. Additional traffic should be expected as part of directing intensive development to this major activity centre.
7. With regard to the safety of school children, the additional peak period traffic would be at different times to the school drop off and pick up times and would have little impact on safety and congestion around the school. I have no difficulty with the traffic outcomes of the development.

1. A shop is required to provide a loading bay pursuant to clause 52.07, unless adequate provision is made for the loading and unloading of vehicles to the satisfaction of the responsible authority.
2. No loading bay is to the provided in this development. No parties had any objection to the waiver of the loading bay. Mr Hunt thought the loading/unloading of small vans could be completed within the ground floor car park or on Upper Heidelberg Road, adjacent to the site.
3. I agree with his assessment. Small cafes and shops usually have a small number of deliveries each day, and each delivery is usually completed within 15-20 minutes. There is ample room within the ground floor car park and along Upper Heidelberg Road for a small number of deliveries and providing a dedicated loading area is an inefficient use of space. I see no difficulties in waiving the provision of a loading bay.

Would the development provide acceptable amenity for its neighbours?

1. The review site has two residential interfaces. It adjoins a dwelling (with a "granny flat" to its rear) at No .3 Waverley Avenue to its west occupied by Ms Marshall. She consents to a permit being granted for the proposed development provided that the setbacks to her boundary of the fourth and fifth storeys are increased. This is acceptable to the applicant.
2. It adjoins three dwellings to its south, these being Nos. 15 and 9 Upper Heidelberg Road, and the rear of a row of attached dwellings at No. 6 Roche Street. The owners or occupiers of these dwellings are not parties to this review.
3. On the north side of Waveley Avenue is a church, and dwellings are to its west. These include a dwelling at No. 8 Waverley Avenue occupied by Mr Andrianopoulos, and No. 10 Waverley Avenue occupied by Ms Toole.
4. The responsible authority, Mr Biacsi and Mr Hutson advised that the development would not impose unreasonable amenity impacts on the adjoining or nearby dwellings.
5. Of the respondents, Ms Marshall's property is the most likely to be affected as it shares a boundary with the review site. I consider her consent to the grant of a permit subject to changes to the proposal, as accepting that the development would not unreasonably impact the amenity of her dwelling or the granny flat to its rear. While I accept that the building would be visible to a person standing in the backyard or arriving in the driveway, I agree that it is acceptable because:
   • She was advised through the review process by a very experienced town planner who I am sure would have carried out his professional duties to fully explain the planning scheme to her, and provide a balanced assessment that the development is acceptable in this planning policy context;
   • The planning policy framework identifies the site as being within an area of substantial change and the setbacks comply with the building envelope in DDO11;
   • The building complies with Standard B17 with regard to acceptable setbacks to the side boundary;
   • It complies with Standard B19 with regard to daylight to habitable room windows;
   • It would have no impacts on any north facing habitable room windows.
6. The dwelling at No. 3 Waverley Avenue has one window that directly faces the review site. It is separated by 3.39 metre driveway. The granny flat to the rear of the dwelling has a blank wall on the boundary so no windows face the review site.
7. The building would have a five storey wall facing No. 3 Waverley Avenue. The building would be setback 4 to 6.4 metres at ground and first levels to its western boundary. The setbacks would increase to 6.1 metres at the second level, 8.4 metres at the third level, and 11.2 to15.4 metres at the fifth storey.
8. The setbacks of the upper floors would be increased by an additional three metres at both levels, further reducing its visual bulk.
9. Mr Andrianopoulos reside at No.8 Waverley Avenue and Ms Toole at No. 10 Waverley Avenue, on the north side of Waverley Avenue and to the northwest of the review site. Mr Andrianopoulos's dwelling is some 15 metres from the boundary of the review site. His dwelling is screened by a two metre solid front wall. It appears his front garden area within the boundary fence is used for secluded private open space and habitable rooms adjoin this area. He says, via a written statement, that the height of the building would exceed the DDO11 and the preferred height of the GRZ. Except for the matter of appropriate transition to the GRZ, the submission does not specify adverse impacts to the amenity of Mr Andrianopoulos' dwelling.
10. Ms Toole resides at the next dwelling to the west. It comprises two dwellings both with windows that face the street. It has a substantial front setback, and the front garden includes a tall eucalypt and median height vegetation. Views of the review site from the front of the two dwellings and midpoint in the front garden are very limited.
11. Ms Toole says the garden provides serenity that supports her wellbeing. She says the amenity of her dwelling and the front garden would be adversely impacted by noise from future residents, more traffic and the visual bulk of a tall building. She says the future residents may be able to overlook her front garden, disrupting its privacy and serenity.
12. While I accept that the proposed building will be somewhat visible from Nos. 8 and 10 Waverley Avenue, I am not persuaded that it would adversely impact their amenity. Both dwellings are separated by at least 25 metres from their front facades (45 metres from Ms Tooles dwelling), a distance that reduces to some degree the visual bulk. Views of the building from Ms Tooles front garden will be marginal. With regard to visual bulk, given the planning framework of substantial change and its extensive compliance with DDO11, its height and massing should be expected and I cannot agree with them that it is unexpected.
13. I note that their concerns are with views from and the amenity of their front gardens. These areas generally are regarded as being less sensitive than secluded open space that is located at the rear of the dwellings.
14. Perusal of recent Nearmap aerial photographs indicate that both properties appear to have substantial secluded open space areas to the rear of the dwellings, including a swimming pool and paved deck in No. 8 Waverley Avenue. These open space areas would increase their separation to the proposed development and screen views via their own dwellings. In my view, the secluded open space areas in the front setbacks are likely to be secondary to the spaces at the rear of the dwellings.
15. Even if I am wrong, it is my view that using the front setback area as the primary open space area, when other open space is available in the property is a matter of choice, and it does not provide a proper planning basis to constrain development on a significant development site within a high level activity centre.
16. I give little weight to concerns with noise from future residents as I consider this is an inevitable consequence of encouraging more people to live close to an activity centre, residential use is as of right in the GRZ, and noise is a matter best dealt with through policing.
17. The proposed building would not impose any of the amenity impacts that are considered under clause 55.04, and given the separation distance, I cannot reasonably conclude it would impose unacceptable impacts on the amenity of the dwellings on the north side of Waverley Avenue. The separation distance easily complies with standard B22 with regard to overlooking.
18. With regard to the amenity of the dwellings to the south, these dwellings are set back at least six metres (No. 15 Upper Heidelberg Road) and ten metres in the other two dwellings. The setback areas appear to be used for secluded open space, except for No. 6 Roche Street where it is used for car parking and utility services.
19. The proposed building would be five storeys tall facing these properties. It would be built on the south boundary for three levels where it abuts No. 15 Upper Heidelberg Road. To the west of this boundary wall, the south wall of the building would have setbacks from 7-9 metres at the upper ground floor, first and second levels, increasing to 9 metres at the third level and 11.2-15.77 metres at the fourth level.
20. The elevation to the south boundary effectively comprises two buildings separated by a gap of 11.4 metres to provide the central open space area, daylight and outlooks to the internal dwellings.
21. I am satisfied that the setbacks and built form would not impose unreasonable amenity impacts. The setbacks comply with Standard B17 and DDO11. The generous setbacks of the top level would reduce the built form that would be viewed by people to the south to a four storey building, consistent with DDO11. The building does not result in unreasonable overshadowing of sensitive secluded open space. The wall on the south boundary is encouraged by DDO11 and provides the opportunity for a development on the adjoining site to also built to the boundary and thereby make efficient use of that site.
22. I am satisfied that the development would be a polite neighbour that respects the amenity of the existing dwellings and provides for the redevelopment of the adjoining sites.

Would the development provide acceptable amenity for its future residents?

1. The responsible authority did not identify in its grounds of refusal any criticisms of the amenity that would be provided to the future residents of the apartment building. It accepts that there are some Ecologically Sustainable Development (ESD) matters identified by the referral officer to be addressed, but submitted these can be resolved via permit conditions. It did not prosecute any internal amenity matters in its submission to the Tribunal.
2. The respondents also did not identify any aspects of the building's design that would adversely impact on the amenity of future residents.
3. It was the expert evidence of both Mr Biacsi and Mr Hutson that the residents of the building would enjoy an acceptable level of amenity.
4. I concur with the submissions from the parties and the opinions of the two experts. I conclude that future residents living within this building would enjoy an acceptable level of amenity as they would be provided with:
   • A mix of dwelling sizes and formats to meet the needs and affordability of a wide range of households;
   • Habitable rooms that all have access to natural light and ventilation and that meet the Built Environment Sustainability Scorecard (BESS) requirements for daylight;
   • Attractive vistas and outlooks, particularly from the upper storeys;
   • A usable and well landscaped area of communal open space that can be used for quiet contemplation;
   • Tempered use of screening to protect the privacy of neighbours without unreasonably limiting the outlook from the apartments;
   • Foyers and entries that are a good size and readily identifiable in the streetscapes;
   • Dwellings have reasonable secluded open space areas adjacent to their living rooms;
   • Multiple entries to the building to facilitate convenient and safe entry;
   • Secure car and bicycle parking, additional storage and bin storage;
   • The privacy of the dwellings adjacent to the communal open space protected through planters and vegetation, and by not providing facilities for households to entertain family and friends in the communal area.
5. I agree with the parties, particularly the respondents, when they say that Ivanhoe is a very pleasant place in which to live. The future residents will also enjoy the vegetated vista of the environs adjoining the major activity centre, the convenient proximity to train and bus services and the easy access to the Darebin Parkland to the west. They will also have convenient access to the cafes, shops, business and health services and community facilities located along Upper Heidelberg Road. I am satisfied that this building will provide good amenity in an attractive well services activity centre.

1. Ms Toole says I should refuse the proposal because the development would lead to the loss of vegetation that would adversely affect biodiversity and habitat for flora and fauna. She further says the development would increase vehicle emissions that would adversely impact air quality and people's health. She says a large building would adversely contribute to climate change and urban heat. She is also concerned that a large building would reflect strong winds into her property that would damage the notable eucalypt in her front setback area.
2. I am not persuaded by these propositions. The site is within a C1Z, and affected by a DDO that generally says a four to five storey mixed use building should be developed on the site. It largely complies with the preferred height and the setbacks to the boundaries. It is a location for substantial change to an intensive urban form. In my view this inevitably means less landscaping and vegetation is to be provided. The edge of a commercial centre designated for substantial change is not the place for extensive landscaping to support local flora and fauna. The more intensive change in this location is balanced by much less change in local residential areas where more trees can be provided to support local wildlife.
3. Furthermore, I am convinced that a more compact city that comprises vibrant activity centres, effective 20 minute neighbourhoods, good public transport, walking and cycling, and energy efficient buildings is a preferable urban structure than a highly dispersed, low density, car dependent city. The policy framework is clear and change is inevitable and needed within and around the edges of the higher order activity centres.

1. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

• to construct a 5 and 6 story mixed use building in the General Residential Zone, Commercial 1 Zone and Design and Development Overlay Schedule 11, to use a ground floor frontage in excess of two metres width for accommodation within a Commercial 1 Zone, to alter access to a Road Zone Category 1 (clause 52.29), to remove vegetation in a Vegetation Protection Overlay and to waive the provision of a loading bay (clause 52.07)

1. Before the development permitted by this permit starts, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans prepared by McCabe Architects and substituted by VCAT (Plans described as TP.100, TP.101-TP.108, TP.300, TP.301, TP.303, TP.304, TP.TP.401, TP.500-TP.502, TP.700, all Revision C, and dated 13 June 2017 and TP.302 Revision D (5 July 2017) but modified to show:

(a) Provision of a minimum of 6m3 storage per unit;

(b) The setback of the western wall of apartment 01 on the third level (TP.106) from the western boundary increased to a minimum of 11.5 metres generally in accordance with the letter of agreement prepared by Planning and Property Partners dated 14 July 2017;

(c) The setback of the western wall of apartment 01 on the fourth level (TP.107) increased to a minimum of 14.5 metres with a terrace of 3 metres width as shown on Plans TP.106 and TP.107 generally in accordance with the letter of agreement prepared by Planning and Property Partners dated 14 July 2017;

(d) A parapet with a minimum height of 0.5 metre along the western edge of level four and behind the parapet, a planter box with landscaping generally 4.3 metres from the west walls of dwellings 12, 13 and 14, all to screen views from those dwellings, all generally in accordance with the letter of agreement prepared by Planning and Property Partners dated 14 July 2017;

(e) The car parking layouts shown on the upper ground floor, basement 1 and basement 2 modified to include the recommendations set out in Appendix B to Mr Hunt's evidence to VCAT dated 30 June 2017. The modifications must include:

• A central intercom to enable visitor access outside standard business hours;
• A trafficable area adjacent to the substation on the ground floor;
• One on-site parking accessible car parking space and associated share zone on the ground floor;
• The number of parking spaces on the lower ground floor reduced to 28 spaces;
• A pedestrian sight line triangle on the exit lane of the access way measuring 2 metres along the frontage to Upper Heidelberg Road and 2.5 metres along the access way;
• Columns located in accordance with Diagram 1 to clause 52.06 or Figure 5.2 of AS/NZS 2890.1:2004. Where door opening is impacted provide 300mm clearance to the column or remove the car space;
• Changes to the layout of the bicycle parking set out in Appendix B.

(f) The colour of the eaves of the fourth (topmost) storey changed to a dark colour consistent with the cladding materials.

(g) The requirements of VicRoads as specified in Conditions 17, 18 and 19;

(h) The existing redundant crossing to be removed and reinstate with kerb and channel, footpath and nature strip to Council's satisfaction;

(i) A schedule of external surfacing material cladding and roofing materials including materials and colours, including details of the driveway entry into the basement car park and balcony balustrade materials; the schedule should be presented on a separate sheet and must include colour samples;

(j) Engineering plans showing a properly prepared design with computations for the internal drainage and method for disposal of stormwater from all roofed areas and sealed areas including:

(i) The use of an On-site Stormwater Detention (OSD) system;

(ii) The connection to the Council nominated legal point of discharge;

(iii) The integration, details and connections of all Water Sensitive Urban Design features in accordance with the endorsed Sustainable Management Plan and STORM report and include drainage details as a result of landscaping.

Please note the Engineering plans must show all protected and/or retained trees on the development site, on adjoining properties where tree canopies encroach the development site and along proposed outfall drainage and roadway alignments (where applicable) and every effort must be made to locate services away from the canopy drip line of trees and where unavoidable, details of hand work or trenchless installation must be provided;

(k) All ESD requirements as identified in the Sustainable Management Plan prepared by WSP/PB dated March 2016 that can reasonably be shown on the plans and modified as required under this permit.

1. Before the development starts, a landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. The landscape plan must be generally in accordance with the landscape plan prepared by John Patrick Landscape Architects Pty Ltd presented as evidence to VCAT (Job 17-0263 dated June 2017). When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:
   • (a) The relocation of Trees #21 and #26 (Canary Island Palms) generally to the site's northeast corner, with suitable clearance of their canopies and root systems from the building, its basement and overhead street wires;
   • (b) A schedule of all proposed trees, shrubs and ground covers, which includes the location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;
   • (c) Location and details of paving, steps, retaining walls, water tanks, clotheslines, fence design details and other landscape works including cut and fill.

1. The development as shown on the endorsed plans or described in the endorsed documents must not be altered or modified except with the written consent of the responsible authority.
2. Unless otherwise agreed in writing by the responsible authority the development permitted by this permit must not be occupied until the development has been completed to the satisfaction of the responsible authority in accordance with the permit and endorsed plans (including, but not limited to built form and layout, parking, landscaping, drainage, street numbering, replacement of street trees).

1. Unless otherwise agreed in writing by the responsible authority, prior to the commencement of works (including demolition) on the site Tree Preservation Zones and associated fencing must be established around Trees #4, #6, and Trees #33-41. At least 7 days prior to the commencement of works you must contact Council's Development Planning Unit on 9457 9808 so that an inspection of the Tree Preservation Fencing can be carried out. Once installed and inspected the Tree Preservation Zones must be maintained until the conclusion of works to the satisfaction of the responsible authority, and must meet the following requirements:
   • (a) Extent

Tree Preservation Zones shall be provided in the following locations:

1. Trees #33 - #36: to the extent of the calculated Tree Protection Zone (TPZ) where it occurs within the nature strip;
2. Trees #4, #6, and Trees #37 - #41: to the extent of the calculated Tree Protection Zone (TPZ) where it occurs within the subject site;
3. The fencing can be realigned and suitable ground protection provided to allow any construction approved within a TPZ only to the satisfaction of the project arborist and only when approved by the responsible authority.

(b) Management of works

1. A suitably qualified arborist must supervise or undertake all approved activity within the calculated TPZ of a retained tree. Any root severance within the TPZ must be undertaken to their satisfaction using a clean sharp and sterilised pruning saw. There must be no root pruning within the SRZ unless consent is received in writing by the responsible authority, and there must be no root pruning within the TPZ for works other than those endorsed by the responsible authority.

2. All and any excavations within the TPZ of retained trees must be undertaken by hand or by approved non-destructive techniques suitable in the vicinity of trees, and must only be undertaken by, or directed and supervised by, a suitably qualified arborist for endorsed works or for works subsequently approved by the responsible authority.

(c) Weed control

Any weeds located within the Tree Preservation Zone are to be removed and the area mulched with 100mm of composted coarse grade woodchips

(d) Fencing

• (i) Protective fencing must consist of chain wire mesh panels with shade cloth attached, held in place with concrete feet. Fencing must comply with Australian Standard AS 4687-2007 Temporary fencing and hoardings.

• (ii) The fences must not be removed or relocated without the prior consent of the responsible authority.

• (iii) Canopy and Limb protection must be provided in accordance with the guidelines detailed in AS4970-2009 Protection of Trees on Development Sites.

(e) Signage

Fixed signs are to be provided on all visible sides of the Tree Preservation Fencing, stating "Tree Preservation Zone - No entry without permission from the City of Banyule".

The area must be irrigated during the summer months with 10 litres of clean water for every 1 cm of trunk girth measured at the soil / trunk interface on a monthly basis during summer (or a percentage thereof equivalent to the percentage of TPZ area occurring within the subject site).

(g) Access to Tree Preservation Zone

• (i) No persons, vehicles or machinery are to enter the Tree Protection Zone except with the consent of the responsible authority;

• (ii) No fuel, oil dumps or chemicals are allowed to be used or stored within the Tree Preservation Zone and the servicing and re-fuelling of equipment and vehicles must be carried out away from the root zones;

• (iii) No storage of material, equipment or temporary building is to take place within the Tree Preservation Zone;

• (iv) Nothing whatsoever, including temporary services wires, nails, screws or any other fixing device, is to be attached to any tree.

(h) Ground Protection

• (i) Ground protection in the form of rumble boards strapped over mulch or aggregate must be utilised where the tree protection zone occurs outside the fenced area detailed in Condition (a)(ii).

(i) Underground Services

Any underground service installations transecting a Tree Protection Zone of any retained tree must be bored beneath the entire TPZ to a depth of at least 600mm. Any excavation within the calculated TPZ of a retained tree required for the connection of services must be:

(i) Undertaken after written approval is received from the responsible authority; and,

(ii) Undertaken by hand or by approved non-destructive techniques suitable in the vicinity of trees under the supervision of the project arborist.

1. Before the commencement of the use and development, an updated Sustainability Management Plan (SMP) and STORM report must be prepared and submitted to the responsible authority. The updated SMP and STORM reports must be generally in accordance with the SMP prepared by WSP/PB dated March 2016 but be modified to address the amended plans required under Condition 1 of this permit to the satisfaction of the responsible authority. When approved, the plan will be endorsed and will then form part of the permit.

No alterations to the SMP may occur without prior written consent of the responsible authority, and all works must be undertaken in accordance with the SMP.

1. The walls of the development on the boundary of adjoining properties must be cleaned and finished in a manner to the satisfaction of the responsible authority.
2. All external materials, finishes and paint colours are to be to the satisfaction of the responsible authority.
3. Any air-conditioning or cooling units, condensers and the like must not be located on external walls or on balconies without the prior written consent of the responsible authority.
4. All pipes (except down-pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the responsible authority.

1. Areas set aside for the parking of vehicles together with the aisles and access lanes must be properly formed to such levels that they can be utilised in accordance with the endorsed plans and must be drained and provided with an all-weather seal coat. The areas must be constructed, drained and maintained in a continuously useable condition to the satisfaction of the responsible authority.
2. Areas set aside for the parking and movement of vehicles as shown on the endorsed plan(s) must be made available for such use and must not be used for any other purpose.
3. Vehicular access or egress to the subject land from any roadway or service lane must be by way of a vehicle crossing constructed in accordance with Council's Vehicle Crossing Specifications to suit the proposed driveway(s) and the vehicles that will use the crossing(s). The location, design and construction of the vehicle crossing(s) must be approved by the responsible authority. Any existing unused crossing(s) must be removed and replaced with concrete kerb, channel and nature strip to the satisfaction of the Council prior to occupation of the building. All vehicle crossing works are to be carried out with Council Supervision under a Memorandum of Consent for Works which must be obtained prior to construction of the crossings.

1. Unless otherwise agreed in writing by the responsible authority, the landscaping areas shown on the endorsed plans must be used for landscaping and no other purpose and any landscaping must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced.

1. Concurrent with the endorsement of plans under Condition 1, a Waste Management Plan must be submitted to and approved by the responsible authority for the private collection of waste from the property. The Waste Management Plan must include:

(b) The number of bins to be provided and capacity.

(c) Details on method and frequency of cleaning and maintenance of waste areas.

(f) Method of waste and recyclables collection including the need to provide for private services.

(h) Measures to minimise impact upon local residential amenity.

(i) Method of presentation of bins for waste collection.

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

When approved, the plan will be endorsed and will then form part of the permit and must be complied with at all times. Waste collection from the development must be in accordance with the plan, to the satisfaction of the responsible authority.

1. No receptacles for any form of rubbish or refuse (other than public waste bins) may be placed or allowed to remain in view from a public road or thoroughfare and odour must not be emitted from any such receptacle(s) so as to cause offence to any person(s) outside the subject land.

1. Before the commencement of works, a Construction Management Plan (CMP), to the satisfaction of the responsible authority, must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit and shall thereafter be complied with. The CMP must specify and deal with, but not be limited to the following as applicable:
   • (a) A detailed schedule of works including a full project timing.
   • (b) A traffic management plan for the site, including when or whether any access points would be required to be blocked, an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services, preferred routes for trucks delivering to the site, queuing/sequencing, excavation and swept-path diagrams.
   • (c) The location for the parking of all construction vehicles and construction worker vehicles during construction.
   • (d) Delivery of materials including times for loading/unloading, unloading points, expected frequency and details of where materials will be stored and how concrete pours would be managed.
   • (e) Proposed traffic management signage indicating any inconvenience generated by construction.
   • (f) Fully detailed plan indicating where construction hoardings would be located.
   • (g) A waste management plan including the containment of waste on site: disposal of waste, stormwater treatment and on-site facilities for vehicle washing.
   • (h) Containment of dust, dirt and mud within the site and method and frequency of clean up procedures in the event of build-up of matter outside the site.
   • (i) Site security.
   • (j) Public safety measures.
   • (k) Construction times, noise and vibration controls.
   • (l) Restoration of any Council assets removed and/or damaged during construction.
   • (m) Protection works necessary to road and other infrastructure (limited to an area reasonable proximate to the site).
   • (n) Remediation of any damage to road and other infrastructure (limited to an area reasonably proximate to the site).
   • (o) An emergency contact that is available for 24 hours per day for residents and the responsible authority in the event of relevant queries or problems experience.
   • (p) Traffic management measures to comply with provisions of AS 1742.3-2009 Manual of uniform traffic control devices - Part 3: Traffic control devices for works on roads.
   • (q) All contractors associated with the construction of the development must be made aware of the requirements of the Construction Management Plan.

1. Before the development starts, amended plans must be submitted to and approved by the Roads Corporation. When approved by the Roads Corporation, the plans may be endorsed by the Responsible Authority and will then form part of the permit. The plans must be drawn to scale with dimensions and two copies must be provided. The plans must be generally in accordance with the plans date stamped 12 July 2016 and annotated as but modified to show:
   • (a) Modifications to the driveway to restrict right turn movements while exiting from the site by including a splitter island as well as appropriate directional signage.
2. All disused or redundant vehicle crossings must be removed and the area reinstated to kerb and channel to the satisfaction of and at no cost to the Roads Corporation prior to the commencement of the occupation of the buildings hereby approved.
3. The crossover and driveway are to be constructed to the satisfaction of and at no cost to the Roads Corporation prior to the commencement of the occupation of the buildings hereby approved.

1. In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:

(a) The development is not commenced within three years of the date of this permit;

(b) The development is not completed within five years of the date of this permit;

In accordance with section 69 of the Planning and Environment Act 1987, the responsible authority may extend the periods referred to if a request is made in writing:

(c) Within 12 months afterwards if the development started lawfully before the permit expired.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] SHM Lawyers for Mr Andrianopoulos submitted a further letter dated 31 July 2017 responding to the correspondence from Planning and Property Partners

[3] Letter from Deep End Services dated 24 May 2017.

[4] I do not think any adverse car parking outcomes would arise if the café is replaced by an office as there are only small differences in the car parking required for a shop, office and food and drink premises and the development includes surplus car parking.