1. The proposed building is set back a minimum of 1.8 metres from the street boundary to provide for a footpath. The office building has a large window to the street but its access is gained from a door into a corridor. A substation, fire booster and garage door are also provided to the street frontage. The residential lobby is set back from the street by 4 metres. This entrance provides a door to a lobby area.
2. Council sought to have a direct access from the street frontage into the office use. Mr Sheppard advised that the provision of access from the adjacent lobby, which also provides access to some services, is a better solution as it maximises the usable area along the frontage within the office. He noted that it would be more important to have direct access if the use was retail rather than office.
3. We agree with Council that it is preferable to minimise structures such as substations on the street interface. We also agree that it is preferable to design buildings that have activated streetscapes. During the hearing, the Tribunal discussed the option of relocating the substation to a position behind the office space or within the basement. The applicant submitted that both options had been considered but were not possible. The issue is if we find the level of activation provided by the building appropriate? Having regard to the evidence and our inspection of the site and area, we find the proposed streetscape interface acceptable for the following reasons:
   • The provision of a wider footpath on the north side of Queens Avenue is a benefit to not only future residents but more broadly the pedestrian traffic from Henry Street to Auburn Road.
   • We agree with the evidence of Mr Sheppard that the streetscape outcome is improved by the location of apartments designed to have their outlook to the street.
   • Queens Avenue will be activated due to location of the residential lobby.
4. Having considered the evidence and inspected examples of other recent developments in Queens Avenue, we find that the proposed activation of this frontage is of high standard for the area and acceptable without change.

1. The proposal includes the standard requirement for parking for the residents and the office use but seeks a dispensation for 5 of the standard 13 space requirement for the number of dwellings. Clause 52.07 allows for the statutory car parking requirement to be reduced. In considering the merits of the reduction the following factors are to be considered; likelihood of multi-purpose trips, car parking demand, availability of public transport, anticipated car ownership and the convenience of cyclist access.
2. The Council submitted that additional visitor parking was required due to the limited parking within Queens Lane and high demand for parking in the area. Specifically, it sought an additional two visitor spaces outside of business hours, which could be shared with the office use.
3. Ms Dunstan gave evidence that the provision of eight spaces (0.12 spaces per dwelling) meets the estimate for demand for visitor spaces and that her estimate is conservatively high given that newer data is showing lower demand rates than she recommends.
4. Based on the empirical data provided by Ms Dunstan, we are satisfied that the provision of visitor parking as proposed is appropriate. We are satisfied that the demand is met on-site, noting also that there is public transport easily accessible and bicycle parking is provided on site.
5. Mr Partos recommended that the resident cyclist parking be relocated from the basement to the ground level behind the office where a storage room is located. Ms Dunstan acknowledged that it may be preferable to locate the cyclist parking at ground level but it would create management issues taking bicycles through the lobby. We are persuaded by Ms Dunstan that there are management issues of relocating the bicycle storage so will retain is as proposed.
6. The Tribunal noted that the substituted plans omit the provision of parking spaces for cyclists at ground level. Ms Dunstan recommended that two additional parking loops be provided along the frontage. We have included that as a condition.

Whether the development has any adverse impacts on the equitable development rights of the site to its immediate west.

1. The review site is the consolidation of several sites. The adjoining site to the east is currently under construction for an apartment building. To the west is a narrow site accommodating a single storey building.
2. Council did not refuse the proposed development on grounds relating to equitable development but it is a matter that is to be addressed. Both Ms Jordan and Mr Sheppard made submissions.
3. Ms Jordan noted in her evidence that the proposed building has been set back 5.4 metres from its western site boundary to ensure equitable development rights for 19 Queens Avenue, by providing more than half of the required 9 metre separation between dwellings.
4. Mr Sheppard noted that the narrow width of 19 Queens Avenue would require a boundary to boundary development and makes it difficult to develop the site with more than two apartments on each level, with aspects only available to the north and to the south. He also noted that the requirements for parking may limit the site to around 4 to 5 levels and an improved outcome would be achieved if the site was amalgamated with an adjoining property.
5. There have been many Tribunal decisions that have addressed the issue of equitable development and have noted that the principle of 'equitable development' does not mean 'equal development'. A decision 65 Palmerston Crescent Pty Ltd v Port Phillip CC[6] makes the observation that equitable development rights does not mean that each site must have equal setbacks or that each site has equal development potential. The decision goes on to say, relevantly:

[45] We agree with the proposition that the equitable distribution of development rights does not necessarily mean that equal requirements will apply. While all sites should make a contribution towards setbacks, landscaping and daylight access, whether or not the extent of the contribution is fair or equitable will need to take into account the opportunities and constraints provided by each site. What needs to be achieved is a reasonable contribution from each adjoining site.

1. The proposed development is to be constructed to the boundary at the front of the site then set off the boundary by 5.4 metres. The building to the west is a single storey building on a narrow site that due to its size has limited development opportunities. We agree with the evidence of Mr Sheppard that unless this adjoining site is consolidated, its development potential to the full height of the DDO17 may be limited due to the circumstances of the site.
2. We are persuaded that the proposed development has responded appropriately to the site to the west and has considered the issue of equitable development.

Section 173 Agreement

1. The Council initially sought a draft condition requiring the creation of a Section 173 Agreement that included an indemnity clause in favour of the Council over the public pedestrian link on the site.
2. This was objected to by the Applicant on the basis that it was private land on which the Council had no interest. The Applicant suggested that a management plan that allowed for the link to be closed at certain times such as overnight for security purposes would be more appropriate.
3. The Council, upon consideration, conceded that whilst Section 173 Agreements are in place in some locations, they are typically where Council may need to use the link for access to another area. This is not the case here. Accordingly, they did not object to replacing the draft condition with a management plan.
4. We agree and have included the provision of a management plan to the satisfaction of the responsible authority as a condition.

1. Ms Jordan addressed the matter of internal amenity noting that whilst there are some single aspect apartments (facing south), they will receive appropriate daylight, have appropriate sized balconies and have the amenities of a roof terrace and communal space that enhances their amenity. We accept this evidence of Ms Jordan and agree that the proposal provides an acceptable level of internal amenity to future residents.

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

Use and development of a ten (10) storey building comprising not more than 66 dwellings, ground floor office space plus three basement levels; and to reduce the residential visitor parking requirement.

• The use and development of a ten (10) storey building comprising not more than 66 dwellings, ground floor office space plus three basement levels; and
• To reduce the residential visitor parking requirement.

1. Before the development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and two (2) copies provided, substantially in accordance with the substituted plans considered in the application - Project No. 216193, drawing nos:

TP00.00-TP00.02, TP01.00 A, TP01.01 B, TP01.02 C- TP01.03C, TP01.04B-TP01.07B, TP01.08-TP01.09, TP02.01B-TP02.05B, TP03.01A, TP03.02B, TP03.03A, TP04.01-TP04.07, TP05.01A, TP05.02-TP05.04, TP05.05A-TP05.06A, TP05.07-TP05.08, TP05.09A, TP05.10-TP05.14, TP05.15A, TP07.01C.

prepared by Rothe Lowman Architects, received by Council on 13 February 2018) but modified to show:

(a) The Queens Avenue footpath, adjacent to the subject site, to be resurfaced with asphalt and bluestone banding with finished surface levels that generally match the existing conditions;

(b) The finished surface material for the ground floor front setback to consist of asphalt and bluestone bands with finished floor levels that match the resurfaced adjacent footpath;

(c) Coloured elevations that are an accurate representation of the proposed schedule of materials and finishes;

(d) The application of a graffiti-resistant coating to all brick and concrete finishes on the at-grade floors facing Queens Avenue and the VicTrack land;

(e) Modifications to the schedule of materials and finishes to detail the proposed ground surface materials and levels for the front setback;

(f) A schedule of materials and finishes, including physical samples of all stone, timber finishes, concretes, brick and metal finishes. The schedule must include details of the size format that the various materials are to be applied and provide further details of the finishes;

(g) Any modifications to the development necessary as a result of recommendations made in the ESD report required by this permit;

(h) Any modifications to the proposed development that are identified in the Acoustic report required by this permit as being necessary to achieve compliance with D16 must be shown in the plans;

(i) Confirmation on the shower typology used for each shower, in accordance with Standard D17;

(j) Provision of adequate ventilation to the ground floor lobby, in accordance with Standard D18;

(k) Details of the location of any air conditioning units to the dwellings. In the event of any air conditioning units being located on the apartment balconies or terraces, the area of private open space must meet the standards of D19;

(l) Enlarged details, at a scale of 1:20 or 1:50, of the substation doors, fire booster cupboard doors, car park entry, residential entry and public pathway entry and exit, showing the materials, finishes and colours. The selected materials must be durable and of a high quality and integrated with the development;

(m) The provision and allocation of car parking in accordance with Condition 43 in this Permit;

(n) A schedule of bicycle signage to be displayed in accordance with Clause 52.34-5;

(o) Provision of 20 bicycle parking spaces for use by residents and visitors within the basement, with a minimum of 20% of the bicycle parking spaces to be floor mounted in accordance with the requirements of AS2890.3-2015; and

(p) Provision of two (2) bicycle parking loops, for use by visitors, on the ground level near the site frontage.

All to the satisfaction of the responsible authority.

1. The layout of the site and the size, levels, design and location of buildings and works and the description of the uses shown on the endorsed plans must not be modified for any reason (unless the Boroondara Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.

1. Prior to the endorsement of plans pursuant to condition 1 of this permit, an acoustic report prepared by a suitably qualified person must be prepared to the satisfaction of, and submitted to, the responsible authority for approval. Once approved, the acoustic report will be endorsed and will then form part of the permit. The acoustic report must include recommendations as to how the dwellings in the development will achieve compliance with the internal noise levels contained in Standard D16 of Clause 58. Any modifications to the proposed development that are identified in that report as being necessary to achieve compliance with D16 must be shown in the plans required by condition 1 of this permit.

1. Concurrent with the endorsement of the plans referred to in Condition 1 of this permit, a Landscape Plan to the satisfaction of the responsible authority must be submitted to and approved by the Responsible Authority. The plan must be drawn to scale with dimensions and three (3) copies provided. When endorsed, the plan will form part of the permit.

1. Landscaping as shown on the endorsed landscape plans must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.

1. All landscaping works shown on the endorsed landscape plan/s must be maintained and any dead, diseased or damaged plants replaced, all to the satisfaction of the Responsible Authority.

1. All buildings and works must be maintained in good order and appearance to the satisfaction of the Responsible Authority.

1. The land must be drained to the satisfaction of the Responsible Authority.

1. Before the development starts, the Responsible Authority must be provided with evidence to its satisfaction that Rothe Lowman Architects, or an alternative architectural firm to the satisfaction of the Responsible Authority, has been engaged as part of the ongoing consultant team to oversee the design and construction to ensure that the design quality and appearance of the approved development is realised.

1. Prior to the occupation of the development, a management plan for the public pedestrian link must be prepared to the satisfaction of, and submitted to, the Responsible Authority for approval. Once approved, the management plan will be endorsed and will then form part of the permit. The management plan must include details of the times during which the link will be open to the public, and any other conditions with respect to its use. The management plan must be complied with at all times unless with the written consent of the responsible authority.

Conditions required by Public Transport Victoria

1. Unless otherwise agreed in writing with Public Transport Victoria and VicTrack, windows and doors must not be placed on the title boundary with the Railway Land and no windows or doors are permitted to open beyond the Railway Land title boundary to the satisfaction of Public Transport Victoria and VicTrack.
2. Prior to the commencement of works, detailed construction/ engineering plans and computations for any construction or works likely to have an impact on railway operations or railway infrastructure assets are to be submitted and approved by VicTrack and the Rail Operator. The plans must detail all excavation of the site adjacent to the railway corridor, having any impact on the rail reserve, and ensure compliance regarding building clearances to aerial power lines as per the applicable Victorian Electrical Safety Regulations.
3. Unless otherwise agreed in writing with VicTrack permanent or temporary soil anchors must not be installed on railway land.
4. Prior to commencement of works, the Rail Operator must be contacted through the email address metrositeaccess@metrotrains.com.au to obtain the Rail Operator's conditions and safety requirements for works on, over or adjacent to railway land.
5. Any damage to the Rail Operator's infrastructure as a consequence of the construction works must be rectified to the satisfaction of the Rail Operator at full cost of the Permit holder.
6. The Planning Permit holder must take all reasonable steps to ensure that disruptions to train operation within the railway corridor are kept to a minimum during the construction of the development and in compliance with the Rail Operators Safety and Environmental requirements within the Rail Operators construction control and indemnity agreement.
7. Building materials (including glass/window/ balcony treatments) likely to have an effect on train driver operations along the rail corridor must be non-reflective and avoid using red or green colour schemes.
8. No lighting is to be erected that throws light onto the railway tracks or which interferes with the visibility of signals and the rail lines by train drivers.
9. No drainage, effluent, waste, soil or other materials must enter or be directed to railway land or stored or deposited on railway land.
10. Entry onto railway land is at the discretion of the Rail Operator and is subject to the Rail Operator's Site Access Procedures and conditions.
11. The developer shall pay any Rail Operator costs required for the development documentation review or construction works due to the Permit as required by the Rail Operator.
12. Access to VicTrack land during construction and for maintenance purposes after completion will require permission from Metro Trains Melbourne and will be subject to both organisation's site access procedures and conditions.

External lighting (outdoor communal and publicly accessible areas)

1. Concurrent with the endorsement of the plans referred to in Condition 1 of this permit, a detailed External Lighting Plan must be prepared to the satisfaction of the Responsible Authority. Once satisfactory, such plan will be endorsed and must be implemented to the satisfaction of the Responsible Authority. The plan must provide the following details to the satisfaction of the Responsible Authority:
   • (a) Lighting within the outdoor publicly accessible areas of the site;
   • (b) Lighting within the outdoor communal areas.

When endorsed, the plan will form part of the permit.

1. All outdoor lighting of publicly accessible areas must be designed, baffled and located to prevent light from the site causing any detriment to the locality, to the satisfaction of the Responsible Authority.

1. Concurrent with the endorsement of any plans pursuant to Condition 1, a Waste Management Plan, must be prepared to the satisfaction of the Responsible Authority and submitted to the Responsible Authority for approval. Once approved, such Plan must be implemented and complied with at all times to the satisfaction of the Responsible Authority.

1. All bins and receptacles used for the collection and storage of solid waste, recyclables and other wastes must be kept in a designated area, to the satisfaction of the Responsible Authority. This storage area must be:
   • (a) Properly paved and drained to a legal point of discharge;
   • (b) Screened from view with a suitably designed enclosure;
   • (c) Supplied with adequate hot and cold water; and
   • (d) Maintained in a clean and tidy condition free from offensive odours

1. Collection of waste must be conducted so as not to cause any unreasonable disturbance to nearby residential properties and may only take place during the following times:

1. All waste material not required for further on-site processing must be regularly removed from the site. All vehicles removing waste must have fully secured and contained loads so that no wastes are spilled or dust or odour is created, to satisfaction of the Responsible Authority.

1. Prior to the commencement of construction of the building hereby approved:
   • (a) A certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970; or
   • (b) An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for a sensitive use.
2. Notwithstanding the provisions of Condition 28, the following works can be carried out before any necessary Statement of Environmental Audit or a Certificate of Environmental Audit is provided to the Responsible Authority under Condition 28:
   • (a) Buildings and works that necessarily form part of the Environmental Audit process; and
   • (b) Buildings and works that the Environmental Auditor engaged by the owners advises must be carried out before a Statement or Certificate of Environmental Audit can be issued.
3. Buildings and works carried out before any necessary Statement of Environmental Audit or a Certificate of Environmental Audit is provided to the Responsible Authority must be carried out in accordance with the Works Plan approved by the Environmental Auditor engaged by the owner. A copy of the Works Plan must be provided to the Responsible Authority before the commencement of the buildings and works for the purposes of this condition.
4. Before the construction of the building hereby approved commences (excluding buildings and works carried out in accordance with a Works Plan approved by the Environmental Auditor engaged by the owner), a copy of any necessary certificate of environmental audit and/or statement, and the complete audit report and audit area plan must be submitted to the Responsible Authority.
5. The development and use allowed by this permit must comply with the directions and conditions of any Statement of Environmental Audit issued for the land.
6. Prior to the occupation of the dwellings, a letter must be submitted to the Responsible Authority by an Environmental Auditor accredited with the EPA, to advise that all construction and remediation works necessary and required by an environmental audit or statement have been carried out.
7. Any handling and disposal of contaminated site soil must be in accordance with the requirements of any statement of environmental audit issued for the land, the requirements of the Environment Protection Authority and the Environment Protection Act 1970.

1. Underground infrastructure connections, including electricity, must be available to each premises shown on the endorsed plans before any premises can be occupied, to the satisfaction of the Responsible Authority.

Driveways and Car Parking areas to be constructed

1. Before the use starts the areas set aside for car parking, access lanes and driveways shown on the endorsed plans must be:
   • (a) Constructed;
   • (b) Formed to such levels and properly drained so that they can be used in accordance with the endorsed plans;
   • (c) Surfaced with an all-weather seal coat;
   • (d) Line-marked to indicate each car space and clearly marked to show the direction of traffic along the access lanes and driveways; and
   • (e) Drained,

Model of car stacker in the basement car park

1. Unless otherwise agreed in writing by the Responsible Authority, the model of car stacker used in the basement car park is to be the WOHR Combilift 543 Car Stacker.

1. Before the use starts or any building is occupied, car stackers must be installed in accordance with the endorsed plans.

1. The car stackers must be routinely serviced and maintained to the satisfaction of the Responsible Authority to ensure satisfactory access to all car spaces and to prevent any adverse effect on adjoining land by the emission of noise.

1. Car spaces, access lanes and driveways shown on the endorsed plan must not be used for any other purpose and may be used by occupants of or visitors to the site and the general public to the satisfaction of the Responsible Authority.
2. All vehicles entering and exiting the car park must do so in a forwards direction.

1. Before the use starts or any building is occupied, details of any car park control equipment (controlling access to and egress from the internal car parks) must be submitted to and approved in writing by the Responsible Authority. These details must include a car park control device which can be accessed by visitors to the development including clear instructions on how to operate any security system, to the satisfaction of the Responsible Authority.

Number and allocation of car parking spaces

1. A minimum of 86 car parking spaces must be provided on the land, with car parking spaces allocated in the following manner, unless varied with the written consent of the Responsible Authority:
   • (a) Dwelling residents: a minimum of 70 car spaces, including a minimum of:
     1. 1-bedroom dwellings: 1 car space per dwelling
     2. 2-bedroom dwellings: 1 car space per dwelling
     3. 3-bedroom and 3+ bedroom dwellings: 2 car spaces per dwelling;
   • (b) Office: a minimum of eight (8);
   • (c) Dwelling visitors: a minimum of eight (8).

1. Visitor parking spaces within the development must be:
   • (a) Clearly identified by appropriate signage having an area no greater than 0.3m2;
   • (b) Line marked to indicate each car space; and
   • (c) Available for visitor usage in accordance with the times/days required by this permit.

1. Any new vehicle crossover or modification to an existing vehicle crossover must be constructed to the satisfaction of the Responsible Authority.

1. All disused or redundant vehicle crossovers must be removed and the area reinstated with footpath, kerb and channel to the satisfaction of the Responsible Authority.

1. 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. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the buildings without the prior written consent of the Responsible Authority.

1. The external faces of walls on or facing boundaries are to be cleaned and finished to the same standard as such walls within the development site to the satisfaction of the Responsible Authority.

1. Concurrent with the endorsement of any plans pursuant to Condition 1, an Environmentally Sustainable Design (ESD) Report generally in accordance with the reports submitted with the application, must be submitted which is to the satisfaction of the Responsible Authority. The report must be prepared by a suitably qualified expert and submitted to the Responsible Authority for approval. The report must address ESD principles proposed for the site including, but not limited to, energy efficiency, the use of double glazing (or better) with commercial grade seals for the dwellings, waste and building materials. Any recommended changes to the building must be incorporated into the plans required by Condition 1. Once approved, such a plan must be implemented prior to the occupation of the development and maintained to the satisfaction of the Responsible Authority.

1. Prior to the commencement of any site works, including demolition and excavation, a Construction Management Plan must be submitted to and endorsed by the Responsible Authority. No works are permitted to occur until the Plan has been endorsed by the Responsible Authority. Once endorsed, the construction management plan will form part of the permit and must be implemented to the satisfaction of the Responsible Authority. The plan must be prepared in accordance with Council's Construction Management Plan Template and provide details of the following:
   • (a) Hours for construction activity in accordance with any other condition of this permit;
   • (b) Measures to control noise, dust, water and sediment laden runoff;
   • (c) Measures relating to removal of hazardous or dangerous material from the site, where applicable;
   • (d) A plan showing the location of parking areas for construction and sub-contractors' vehicles on and surrounding the site, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises. Any basement car park on the land must be made available for use by sub-constructors/tradespersons upon completion of such areas, without delay;
   • (e) A Traffic Management Plan showing truck routes to and from the site;
   • (f) Swept path analysis demonstrating the ability for trucks to enter and exit the site in a safe manner for the largest anticipated truck associated with the construction;
   • (g) A plan showing the location and design of a vehicle wash-down bay for construction vehicles on the site;
   • (h) Measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan;
   • (i) Contact details of key construction site staff;
   • (j) A site plan showing the location of any site sheds, on-site amenities, building waste storage and the like, noting that Council does not support the siting of site sheds within Council road reserves; and
   • (k) Any other relevant matters.

1. All works including earthworks, demolition and construction activity associated with the approved development must take place only during the following hours, except with the prior written consent of the Responsible Authority:

1. The amenity of the area must not be adversely affected by the use and development as a result of the:
   • (a) Transport of materials, goods or commodities to or from the land; and/or
   • (b) Appearance of any building, works, stored goods or materials; and/or
   • (c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, ash, dust, waste water, waste products, grit or oil; and/or
   • (d) The presence of vermin.

1. This Permit will expire if:
   • (a) The development does not start within two (2) years of the issue date of this Permit;
   • (b) The development is not completed within four (4) years of the issue date of this Permit.

In accordance with Section 69 of the Planning and Environment Act 1987, a request may be submitted to the Responsible Authority within the prescribed timeframes for an extension of the periods referred to in this condition.

[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] The New Shorter Oxford English Dictionary, 1993, p878.

[3] RULING Boroondara City Council 18-0281, dated 06/03/18

[4] W Property Group Pty Ltd v Boroondara CC [2017] VCAT 1238

[5] Prepared by Floodslicer and submitted as evidence.

[6] 65 Palmerston Crescent Pty Ltd v Port Phillip CC 2017 [VCAT] 887.