TP0.01, TP1.01, TP1.02, TP1.03, TP2.01, TP2.02, TP2.03, TP2.04, TP2.05, TP3.01, TP3.02, TP3.03, TP3.04, TP3.05, TP3.06, TP5.01, TP5.02, TP5.03, TP5.04 & TP6.01 (all Revision C, except TP1.02 which is Revision B)

1. In application P2711/2016 the decision of the responsible authority is set aside.

1. In planning permit application PP16/00594 a permit is granted and directed to be issued for the land at 12-14 High Street Road, Ashburton in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:
   • Construction of no more than fifteen dwellings in a General Residential Zone
   • Reduction in car parking requirements for dwelling visitors under clause 52.06-3
   • Alteration of access to a road in a Road Zone Category 1

1. Pursuant to section 115B and 115CAof the Victorian Civil and Administrative Act 1998 and by no later than 17 September 2017, Boroondara City Council must reimburse R W (Ashburton) Pty Ltd the whole of the fees paid by R W (Ashburton) Pty Ltd in the proceeding, namely $2,913.50.

• Mr Kel Twite, town planner, SJB Planning Pty Ltd
• Ms Leanne Dowey, landscape architect, John Patrick Pty Ltd
• Ms Charmaine Dunstan, traffic engineer, Traffix Group Pty Ltd

Mr David Song, town planner, SongBowden Planning Pty Ltd

Application under section 79 of the Planning and Environment Act 1987 to review the failure to grant a permit within the prescribed time[1]

The land adjoins a road in a Road Zone Category 1 (RDZ1) (High Street Road)

Clause 32.08-6 (construction of two or more dwellings on a lot in GRZ)

Clause 52.06 (reduction in parking requirements for dwelling visitors)

Clause 52.29 (alteration to access to a road in a RDZ1)

Clauses 9, 10, 11, 15, 16, 18, 21.05, 21.07, 22.07, 32.08, 52.06, 55 & 65

The land is on the south side of High Street Road, about 14 metres west of Catalina Avenue and about 150 metres west of Warrigal Road. The land comprises two lots. It has a combined frontage of 36.6 metres, a depth of 39.6 metres and an area of 1,449 square metres. The land falls about one metre from the north to south boundary and from the east to the west boundary. The land comprises two lots, each of which is currently developed with a single-storey dwelling with a pitched tiled roof.

On 9 June 2017, the Tribunal inspected the subject land, 17 Liberator Street, and the neighbourhood, unaccompanied by the parties

1. R W (Ashburton) Pty Ltd (in these reasons, RWA) wants to construct 16 townhouses on the subject land. RWA applied to the Boroondara City Council for a permit under the Boroondara Planning Scheme (the scheme) to construct 17 townhouses. The Council decided to refuse to grant a permit. RWA applied to the Tribunal to review that decision.
2. Before the hearing, RWA applied to the Tribunal to amend the permit application by substituting the plans included in the permit application. The substituted plans include 16 townhouses (the proposal). At the start of the hearing, I allowed that application and I amended the permit application.
3. The Council remains opposed to the grant of a permit in respect of the proposal. The key issues in the proceeding are the Council's concerns relating to neighbourhood character, visual bulk, landscaping, overshadowing and internal amenity.
4. After considering the submissions and evidence and inspecting the land, I have decided the current and preferable decision, having regard to the relevant considerations in the scheme, is to grant a permit subject to conditions. My reasons follow.

1. The 16 townhouses sit over a shared basement, accessed off the western end of the land's frontage to High Street Road. Eleven of the townhouses have three bedrooms and five have two bedrooms. Thirteen of the townhouses have three storeys and three have two storeys. In the basement, there are 29 car spaces for residents plus two car spaces for visitors.
2. The townhouses are in two north-south oriented lines, separated by a centrally-located, north-south oriented, shared pedestrian accessway up to five metres wide.
3. The western line contains six townhouses that have their entries off the central accessway. Five of the six have courtyards on the west side and one, facing the street, has a courtyard next to the street.
4. The eastern line contains ten townhouses in five back-to-back pairs of townhouses. Five of them have their entries off the central accessway and five of them have their entries off a pedestrian path along the east boundary of the land. The pair facing the street have a courtyard next to the street. The pair at the rear have courtyards to the rear and partly to a side. Six of the ten townhouses have east-facing or west-facing balconies at the first floor.
5. The townhouses vary as to level at which living areas and kitchens are located. Ten townhouses have living areas and kitchens at ground level and ground level secluded private open space in a courtyard. Six townhouses are 'reverse living' and have a ground floor bedroom, the living area and kitchen in level 1, with access (as I have already stated) to a balcony, and a further bedroom in level 2.[3]
6. The street setback at the ground floor is generally 6.17 metres to the front wall of the three townhouses facing the street. At level 1, the street setback is between 6.02 metres (for the two easternmost townhouses) and 7.01 metres (for the single westernmost townhouse). At level 2, the street setback is between 7.02 metres (for the two easternmost townhouses) and 7.56 metres (for the single westernmost townhouse).
7. The ground floor, above the basement, is about 2.2 metres below natural ground level in the northeast corner of the land. Hence, the pedestrian entry along the eastern boundary involves descending stairs (or taking a platform lift) from footpath level. The pedestrian path along that boundary is between 1.4 metres and 2.2 metres below natural ground level. The 'sunken' ground floor means the three, three-storey townhouses facing the street appear as two to two-and-a-half storey built forms. It also means that maximum height of the buildings (above natural ground level) is 8.96 metres.
8. The front fences to the three townhouses facing the street are set back one metre and have a height between one metre and 1.8 metres above the footpath, providing semi-private lower-level courtyards.
9. East side setbacks are generally four metres at ground level, 2.9 metres at level 1 (ie that level is cantilevered over the ground floor), and between 4.7 metres and 6.4 metres at level 2. Rear setbacks are three metres at the ground floor and level 1, and between 7.4 metres and 8.6 metres at level 2. West side setbacks are 3.26 metres at the ground floor, between 3 metres and 4 metres at level 1 and 6.3 metres at level 2.
10. Site coverage is stated to be 54%, although this excludes the open accessway above the basement. Permeability is stated to 24% of the land.
11. The architectural style is contemporary, with flat roof forms, and varied materials comprising horizontal weatherboards, render, vertical joint cladding and face brickwork.

1. The land is suitably located for additional housing. The purpose of the GRZ is to encourage housing growth and diversity, especially in locations with good access to services and transport, providing the design response respects neighbourhood character. The GRPZ5 imposes no maximum building height and makes no ResCode variations.
2. The permit application is subject to transitional provisions and the mandatory garden area and building height requirements do not apply.
3. State policy, including Plan Melbourne, encourages new and higher density housing at locations with good access to jobs, services and public transport. Local policy seeks to increase housing choice and diversity in existing residential areas and increase opportunities for higher density development in and around commercial centres.
4. The location of the land responds to these State and local policies. First, it has good access to the principal public transport network. The Warrigal Road SmartBus north and southbound stops are at the High Street Road corner about 150 metres to the east, and the Ashburton Railway Station is about 950 metres to the west and is served by frequent buses on High Street. Second, it has good access to activity centres. The Ashwood activity centre, about 150 metres to the east, is at the intersection of High Street Road and Warrigal Road, and includes a full-line supermarket. As well, the Ashburton activity centre to the west is located around that railway station.
5. The land is located on a main road and is a consolidated site, which are both factors in the land's physical context supporting additional housing.

1. The suitability of the land for additional housing was acknowledged two years ago by the Tribunal in a proceeding involving land about 100 metres to the west at 322-324 High Street.[4] The Tribunal's findings are apt for the land in this proceeding, given its proximity.

1. State and local planning policies encourage design responses that respect neighbourhood character.
2. In determining whether a particular design response is respectful, it is necessary to consider physical and policy context. The policy context include any applicable character policy.
3. Two years ago, in Zolynda Projects,[5] the Tribunal found the character of this area along High Street Road/High Street is changing with the replacement of older dwellings with 'either two storey townhouses or apartment buildings not dissimilar to what is proposed'. In that proceeding, what was proposed was a three-storey apartment building above a basement containing 19 apartments, having a maximum building height of 9.94 metres.
4. The land is within character precinct 67 under local policy. It applies to a broad area in the southeast corner of the municipal district, south of High Street on both the east and west sides of the Alamein railway line and extending to Warrigal Road in the east. Updated in 2013, the precinct statement refers to an existing character comprising mainly single storey detached dwellings, with some newer double-storey detached dwellings and townhouses, all with an 'open spacious feel'. The preferred future character statement refers to maintaining the '1 and 2 storey suburban feel of the area and the garden setting of dwellings', ensuring space in front and rear gardens for large trees, ensuring building scale respects the 'predominant building scale' in the street, and preferring tandem rather than duplex building forms.
5. The preferred character does not reflect the policy, zone, physical context (including the main road frontage and proximity to activity centres) and description of the emerging character of the area found by the Tribunal. Importantly, it makes no distinction between areas in the GRZ and the Neighbourhood Residential Zone.
6. The character statement recognises that other policies should be taken into account when it states it is based on existing character and does not take into account 'other planning policy objectives such as housing capacity, access to services and sustainability'.[6] The character statement is a reference document and does not have the effect of forming part of the scheme.
7. Nonetheless, the proposal responds in an acceptable way to the precinct design guidelines. On the negative side of the ledger, the building form is not limited to two storeys, it appears 'box like' because it has a flat roof, the areas for in ground landscaping are limited given the extent of basement, and the minimum street setback of 6.17 metres is 1.28 metres less than the average of the buildings on adjoining land. However, in my opinion, the design is predominantly on the positive side of the ledger, the main factors being:
   • (a) It maintains streetscape rhythm by the presentation of three townhouses in two detached forms to the street, and no building on boundary across the land. Three storey street facades are avoided by a one metre recession of level 2 behind level 1 in the three street-facing townhouses.
   • (b) The two north-south oriented lines of townhouses diminishes building bulk presentation to the street. It also is a preferred sustainability design because it minimises the number of south-facing townhouses and opens the centre of the land for enhanced solar penetration to the pedestrian accessway, entries and room abutting the accessway.
   • (c) The built form along the rear boundary is mainly one and a half storeys that is set back three metres, responding to the rear setback of about two metres for the single-storey rear townhouse on adjoining land to the east at 16 High Street Road.
   • (d) The dominance of car parking structures is minimised by all parking provided in a basement and the entrance to the basement being well set back from the street.
   • (e) A quality plan for a landscaped front setback that includes no front fence.
   • (f) The contemporary building style responds to the emerging style of recent and approved development along High Street between Warrigal Road and the Ashburton activity centre.
8. Nonetheless, an acceptable response to character requires minor change to the street setbacks. Dwelling 1 at 16 High Street Road, to the east, has a minimum setback of 6.06 metres. The dwelling at 10 High Street Road, to the west, has a minimum setback of 8.93 metres. On the ground floor, the three street-facing townhouses are set back 6.17 metres. Level 1 overhangs townhouses 7 & 8 by about 150 mm as the street setback reduces to 6.02 metres. The level 1 setback for townhouse 1 increases by about 800 mm to 7.01 metres. At level 2, the street setback for townhouses 7 & 8 is one metre behind level 1, being 7.02 metres. The level 2 street setback for townhouse 1 increases 500 mm behind level 1, being 7.56 metres.
9. The design guidelines and the applicable ResCode standard require a street setback that is no less than an additional 1.28 metres. Hence, a variation of that dimension is required. The setbacks for the ground floor and level 1 of townhouse 1 are appropriate given the townhouse adjoins 10 High Street Road which contains the dwelling with the greater setback.
10. No change is needed to the ground floor setbacks for townhouses 7 & 8 because they are visually recessed, being at a level below the footpath. The 150 mm overhang of level 1 over the ground floor of townhouses 7 & 8 is unsatisfactory and creates a street façade that is too dominant and out of character. I will require levels 1 & 2 of townhouses 7 & 8 to be set back no less than 6.7 metres and 7.4 metres, respectively.
11. In conclusion, the proposal is an acceptable response to neighbourhood character, subject to change to street setbacks to which I have referred and to some other changes to which I refer later in these reasons.

1. The eastern interfaces presents difficulties. Land to the east at 16 High Street Road, on the corner of Catalina Avenue, is developed with two single-storey dwellings. They are oriented to Catalina Avenue. Importantly, their secluded private open spaces are to the rear along the common boundary with the land in this proceeding. Each of the two spaces is about five metres wide and is centrally-located along the common boundary and presents most directly to townhouses 10 & 12.
2. Townhouses 10 & 12 are three-storey and are set back four metres from the secluded private open space at ground level, five metres at level 1 for townhouse 12 (with a protruding 2.05 metres wide balcony), 2.95 metres at level 1 for townhouse 10 (with a recessed 3.65 metre wide balcony in the southeast corner of the level), and between five metres and 6.1 metres at level 2.
3. In my opinion, the built form of townhouses 10 & 12 does not acceptably respond to the sensitivity of the interface. Despite side setbacks complying with the relevant ResCode standard, there is unreasonable visual bulk, given the continuous three-storey built form along most of the eastern boundary.
4. According to the shadow analysis, there is additional shadow of two and seven square metres in the two secluded private open spaces at 3 pm at the equinox. This impact results in non-compliance with the relevant ResCode standard. Overall, it is an unreasonable impact given the small size of the secluded private open spaces and the orientation of the two dwellings. Hence, the relevant ResCode objective for shadow impact is not met and I would not, therefore, grant a variation to the standard.
5. The difficulty can be overcome by permit conditions. I will require the removal of the topmost level of townhouses 10 & 12. This will convert those townhouses from two-bedroom to one-bedroom dwellings. This will add to dwelling diversity in the proposal. It does not impact on parking requirements. It also has the fortuitous result that the narrow two metre wide and eight square metre balcony of townhouse 10 is more appropriate to a one-bedroom dwelling.
6. This modification creates the possibility of an outdoor living terrace, well set back from the side boundary, at level 2 for one or both of townhouses 10 & 12. It also creates the possibility for new and repositioned windows in townhouses 8, 9, 11 & 14. Such windows could improve ventilation for adjoining townhouses. I will not provide for such measures in the conditions and will leave it to RWA and the Council to consider the merit of these suggestions.
7. For completeness, I did contemplate a condition that required townhouses 10, 12 & 14 to be re-designed as two, double-storey, three-bedroom dwellings. I decided on a condition with as fewer changes as possible to reach an acceptable design response. However, if RWA prefers this change to the one I will include in the conditions, it could discuss this possibility with the Council.

1. Mr Andrews lives in a detached single-storey dwelling at 17 Liberator Street and abuts the south boundary of the land. Mr Andrews' land is irregular in shape because the rear boundary angles away to the northwest. This means Mr Andrews' back garden is deeper in the northwest corner. The rear wall of the dwelling is between about eight metres and ten metres from the rear boundary. There is a garage on the east side of the dwelling and, hence, the rear wall of the garage is closer to the rear boundary. The eastern and western corners of the rear wall of the garage are about 500 mm and four metres from the rear boundary.
2. I refer to these dimensions in some detail because Mr Andrews is concerned about shadow impacts to his land. The concern is heightened by the location of Mr Andrews' line of seven solar panels on the flat roof of the garage. I infer the top of the angled panels would be about three metres above the ground. They are located on the rear wall of the garage. They are located more to the east side of the garage and are only between about 500 mm and 3.5 metres from the rear boundary.
3. Mr Andrews contends the panels will be impacted by shadows from the proposal and will unreasonably impact their efficiency and hence the energy efficiency of his home. Mr Andrews' contractor installed the panels in 2009.
4. The shadow analysis shows, as it needs to, the impact on the ground level of Mr Andrews' backyard (ie his secluded private open space) at the equinox. Hence, it is does not show actual impacts on the panels (or the garage north-facing wall or roof) at either the equinox or winter solstice. Mr Andrews did not submit any independent expert evidence on the extent or nature of the impact.
5. The inference I draw from the shadow analysis, and the length and location of shadows, is that there is some potential impact on some of the more easterly located panels at 9 am at the equinox. It is doubtful that there is any impact after 10 am at the equinox. Of course, at the winter solstice, the impact will extend to later in the morning, possibly until about midday.
6. The scheme does not specifically restricts shadow impacts on solar panels. The relevant ResCode energy efficiency objectives include seeking to protect energy efficiency of dwellings and the relevant standard is that 'buildings should be sited and designed to ensure that the energy efficiency of existing dwellings on adjoining lots is not unreasonably reduced'. Any impact on the energy efficiency of Mr Andrews' home is more than the impact on his solar panels.
7. In the absence of evidence about specific impact, I find it is reasonable to consider impact at the equinox. At that time of the year, the impact is limited to no later than the mid-morning. This is not unreasonable.
8. I accept that the impact will be greater at the winter solstice but I have no evidence about the extent of that impact to make any finding about unreasonableness. It would be relevant to take into account whether Mr Andrews took reasonable steps when installing the panels to limit the impact. In this respect, Mr Andrews did not take reasonable steps because he chose to install the panels at a location that could not be any closer to his rear boundary. I am unable to discern any reason why, from an efficiency viewpoint, the panels could not have been located further away from the rear boundary. At the hearing, Mr Andrews said he accepted his contractor's advice about the location of the panels on the garage roof.
9. Mr Andrews was also concerned about the shadow impact on his backyard. The shadow analysis shows that the impact meets the ResCode standard and hence that impact is no reasons to refuse a permit or modify the design.

1. I accept Mr Twite's opinion that the internal amenity of the townhouses is generally acceptable. Each townhouse has living areas with good daylight and sunlight access. Bedroom sizes are functional. Particular issues in dispute relate to entrances, reverse living designs, privacy screens and secluded private open spaces.

1. Entrances to each townhouses are located off the central and eastern pathways. They are not hidden or difficult to access. The Council submitted the eastern pathway was unacceptable.
2. There is a four metre setback from the eastern side boundary to the nearest wall in each of the five relevant townhouses. The four metre setback comprises a two metre wide landscaping strip behind a retaining wall of varying height of up to about two metres and a one metre wide path and one metre wide landscaping strip along the townhouses. Level 1 overhangs the ground floor level by one metre and hence overhangs the landscaping strip, but not the path. Nonetheless, the Council maintains the pathway is confined and of poor amenity given the retaining wall and the building overhang.
3. The central pathway is generally four to five metres wide and, despite some level 1 overhangs, is also about 4.5 metres wide open to the sky at that level. While the eastern path may not have the same level of amenity, it is not acceptable.
4. The communal entries off the footpath have platform lifts to help people with limited mobility access the ground level of the townhouses.
5. The north-south aligned central accessway, providing access to ten of the townhouses, has good solar orientation and hence will not be gloomy or uninviting.

1. Six of the 16 townhouses have a reverse living design with living areas at a level above levels with bedrooms. This is not unreasonable on the basis of dwelling diversity and the land's proximity to activity centres.

1. I agree with Mr Twite that the 1.7 metres high privacy screens to the balconies at level 1 of townhouses 10, 12 & 14 adversely affect internal amenity. Even though the plans show those screens comprising 10 mm thick metal louvres at 50 mm spacing, the sense of enclosure is unsatisfactory, particularly for the narrow two metre wide balconies of townhouses 10 & 14. I agree with Mr Twite that lower height screens with horizontal or upward angled shelves that limit downward views is preferable. I will include a condition to this effect.

1. I am concerned about the adequacy of secluded private open space for townhouses 3, 4 & 5. These townhouses are three-bedroom, three-storey townhouses with ground floor living areas. The secluded private open spaces for these townhouses occupy the 3.26 metres setback of the ground floor living room wall from the west side boundary. The plans state the secluded private open areas are 15, 14 & 14 square metres, respectively.[7] None of these townhouses has additional open space in a balcony format.
2. The relevant ResCode standard is not met. It requires a total of 40 square metres per dwelling, with one part with a minimum width of three metres and a minimum area of 25 square metres. Mr Twite considers a variation is justified because the smaller areas are 'proportionate' to the dwelling size and because the land is in a GRZ and near activity centres and public open space. I cannot accept his opinion. The areas are too small for three-bedroom townhouses, especially ones over three levels in which younger residents with potentially more open space needs are likely to occupy. In addition, the internal layout is not ideal because the kitchen, rather than the living area, adjoins the secluded private open space.
3. The areas for each townhouse need to be larger. For these townhouses, I would require 25 square metres with a three metre minimum dimension. I have considered a condition that requires this to be provided for each of the three townhouses. For an additional 11 square metres, each area of secluded private open space needs to have an additional 3.4 metres of depth. Accordingly, each of the three townhouses would need to be setback no less than 6.7 metres from the side boundary.
4. Although I have carefully considered a condition to this effect, I have decided to not include it. It would not adequately solve the problem. A combination of the small areas of secluded private open space, the three-bedroom, three-level format, and the narrow width of only 4.3 metres in each townhouse, has led me to find that that the three townhouses, each only 4.3 metres wide, represent an overdevelopment of the southwest corner of the land.
5. I will include a condition that requires townhouses 3, 4 & 5 to be redesigned to create two new wider-floorplate townhouses that are provided with no less than 25 square metres of secluded private open space. The redesign must be confined to the existing three-dimensional building envelope. I will leave it to RWA and the Council to resolve details with the external appearance of the two redesigned townhouses, such as window positions and dimensions.
6. If the two new townhouses have three or more bedrooms, I acknowledge that the redesign will free up one pair of tandem car spaces in the basement. I will leave it to RWA and the Council to resolve the parking implications. The condition means that the number of townhouses is reduced from 16 to 15 and I will amend what the permit allows accordingly.
7. In addition, and having regard to my observations about the eastern interface at paragraph 39, I will state what the permit allows as 'construction of no more than 15 dwellings'. This will ensure that the scope of any amendment to the permit is minimised if RWA pursues my suggestion about townhouses 10. 12 & 14.
8. Even though townhouse 6 is also only 4.3 metres wide, it does not have the cramped feel of townhouses 3, 4 & 5 because it enjoys access to and outlook to additional secluded private open space along the rear boundary of the land. Nonetheless, its ground floor kitchen adjoins the west-side secluded private open space and this is the only access to that space. The ground floor needs to be redesigned to provide direct access from the living area to secluded private open space. I will include an appropriate condition.

1. It suffices to find that I accept Ms Dowey's evidence and that the landscape plan, when implemented, will provide an attractive setting for the townhouses, particularly in the street setback.

1. The Council does not oppose the traffic and parking impacts of the proposal. There is a statutory requirement for 27 car spaces for residents and three car spaces for visitors. The proposal provides 29 car spaces for residents and two car spaces for visitors. It is not possible to reallocate two of the spaces for residents to visitors, given the layout. Hence, a permit is required to reduce the requirement for visitors by one space.
2. I accept the opinion of Ms Dunstan that the reduction is acceptable given the demand assessment, availability of public transport and available on street parking in side streets off High Street Road at peak times of weekday evenings and weekends for the modest shortfall.
3. The vehicle access arrangements are generally to the satisfaction of VicRoads, the road manager for High Street Road. I accept Ms Dunstan's opinion that the basement, including the ramp grades, is designed so as to accept a small waste vehicle in a private collection arrangement.

1. RWA has applied for an order that the Council reimburse RWA the application and hearing fees it has paid the Tribunal, being a total of $2,913.50.
2. In an application under section 79 of the Planning and Environment Act 1987, there is a statutory presumption for reimbursement unless the Council satisfies the Tribunal that there was reasonable justification in not deciding the permit application before the application to the Tribunal was made (ie 20 December 2016 in this proceeding) having regard to factors including the nature of the permit application, the permit applicant's conduct and any other matter beyond the Council's reasonable control.[8]
3. RWA essentially relies on three particular delays by the Council it contends are not justified.
4. I will refer to the three delays shortly, but it needs to be kept in mind that RWA responded to a request for further information on 20 July 2016. RWA was entitled to presume that, on 20 July 2016, the Council had all the information it needed from RWA to decide the application.
5. The first delay is the delay by the Council's planning staff in not referring the permit application, with the further information, to the urban designer until 5 September 2016, some 46 days after receiving the further information.
6. The second delay is the delay by the Council's urban designer in providing the Council's planning officer and the applicant with the urban designer's comments. The comments are dated 28 November 2016 and I will assume the Council received the comments on that date. Perusal of the comments shows that the due date for giving the comments to the Council was 28 September 2016. RWA did not receive a copy of those comments until 12 December 2016.
7. Accordingly, the delay by the urban designer in giving the comments to the Council planning staff and RWA is 145 days after RWA gave the further information, 99 days after receiving the request for comments from the Council's planning staff, and was 63 days later than the date sought by the Council's planning staff.
8. The third delay is the delay by the Council's planning officers after RWA provided the further information to give RWA an instruction to give notice of the permit application. The instruction was given on 14 September 2016, some 56 days after the further information was provided.
9. The Council has not satisfied me there was reasonable justification for these delays.
10. I accept the permit application was more complex than many applications to the Council because 17 dwellings were proposed on a consolidated, main road lot having interfaces to six lots. I also accept that the Council and RWA were engaged in good faith consultations and negotiations at various points before 20 December 2016.
11. However, the Council provided no reasonable justification for the delays in referring the permit application with the additional information to the urban designer, for the delays in receiving the urban designer's comments, and in the delays in giving RWA an instruction to give notice of the application.
12. I have carefully considered the urban designer's comments. They do not include any reference to a number of discussions, communications or negotiations the urban designer had with RWA's representatives. Hence, there is no grounds for me to make a finding that RWA's conduct contributed to the delays.
13. The Council drew to my attention my order in Shenfield that the Council in that case reimburse the applicant its fees.[9] The Council sought to distinguish Shenfield because it contended this application was not attended with the delays I found in Shenfield. In Shenfield, I found that two internal referrals were not received for 156 and 181 days respectively. In this case, the urban designer's comments were delayed 145 days in being given to RWA (including delays in seeking the urban designer's comments after further information was provided), although they were given to the Council's planners some days before that.
14. Although I would accept Shenfield could be distinguished on the basis of delays in two referrals, the extent of overall delay is no basis for being distinguished. It is also relevant that there is no evidence of RWA seeking and participating in ongoing discussions and consultations. While there may have been isolated points for such events, it cannot be said that RWA was adding to the complexity and delay by constant engagement with the Council's planners.
15. Accordingly, I am not satisfied the Council has reasonable justification for delay and hence the statutory presumption ought to apply. I will order fee reimbursement.
16. Although I will order reimbursement, I have some sympathy for the position in which the Council finds itself. Section 115CA(3) of the Victorian Civil and Administrative Tribunal Act 1998 requires an inquiry into the circumstances that might justify the Council's delay before an application is made to the Tribunal. It does not authorise inquiry into an applicant's conduct after the application to the Tribunal. If I had been able to consider the applicant's conduct after the application to the Tribunal, I might have come to a different finding.
17. I make this observation because the urban designer's comments, delayed as they were, recommended RWA consider a substantially different design response. The urban designer urged abandonment of two east-west oriented lines of townhouses in the original scheme in favour of two north-south oriented lines of townhouses.
18. I have not been required to consider the original scheme but observe that RWA accepted that recommendation when it prepared substituted plans for the hearing and I got the strong impression from Mr Twite that he thought the urban designer's recommendation had merit and that the substituted design had more merit than the original design. RWA's conduct, in accepting the Council's advice, post-dated the application to the Tribunal and I cannot take it into account.

1. For the above reasons, the decision of the responsible authority will be set aside. A permit will be granted subject to conditions. The conditions will require the plans to be amended to incorporate some important changes to the design response. The Council will be ordered to reimburse RWA's fees.

• Construction of no more than fifteen dwellings in a General Residential Zone
• Reduction in car parking requirements for dwelling visitors under clause 52.06-3
• Alteration of access to a road in a Road Zone Category 1

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 three copies provided, substantially in accordance with the substituted plans prepared by Chamberlain Architects (Revision C, dated 1 May 2017) but modified to show:
   • (a) Deletion of level 2 in both Townhouses 10 & 12.
   • (b) Deletion of Townhouses 3, 4 & 5 and substitution, within the three-dimensional envelope of these townhouses, with two townhouses, each with a minimum of 25 square metres of secluded private open space with a minimum dimension of 3 metres.
   • (c) A street setback of Townhouses 7 & 8 no less than 6.7 metres at level 1 and no less than 7.4 metres at level 2.
   • (d) Substitution of the 1.7 metres high privacy screens to the balconies of Townhouses 10, 12 & 14 with lower height screens that limit downward views to ensure compliance with the ResCode overlooking objective in clause 55.04-6.
   • (e) A redesign of the ground floor of Townhouse 6 to provide direct access to secluded private open space from the living area.
   • (f) Any changes to the layout required for consistency with the landscape plan endorsed under condition 7.
   • (g) The external wall height of the east elevation of Townhouse 14 dimensioned to confirm a maximum height of 7.4m above NGL where the wall face is set back 2.95m from the eastern boundary and a maximum height of 7.8m above NGL where the wall face is set back 5.0m from the eastern boundary.
   • (h) Reconfigure the centrally located southern setback area, adjacent to the central accessway, to form part of the secluded private open space of Townhouse 15.
   • (i) Delete the east-facing entry window of Townhouse 6 and provide a new east-facing window in the eastern wall of the living room of that dwelling.
   • (j) A schedule of external construction materials, finishes and colours (including samples).
   • (k) Any modifications required by VicRoads.

1. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

1. Before the development starts, amended plans must be submitted to and approved by VicRoads. When approved by VicRoads, the plans must be endorsed by the Responsible Authority and will then form part of the permit. The plans must be generally in accordance with the application plans referred to in condition 1 but modified to show:
   • (a) The crossover flared at 60 degrees with a 3.0 metre radial turnout at the kerb and with 1.0 metre clearance from any fixed object at the entrance to the property.
   • (b) The access way into the basement car parking requires a splay connecting the end of the passing area and the basement ramp;
2. Prior to the commencement of the use hereby approved, the following works must be completed to the satisfaction of the Responsible Authority and at no costs to VicRoads:
   • (a) The access lanes, driveways, crossovers and associated works must be provided and available for use and be:
     1. Formed to such levels and drained so that they can be used in accordance with the plan.
     2. Treated with an all-weather seal or some other durable surface.
   • (b) All disused or redundant vehicle crossings must be removed and the area reinstated.
3. Driveways must be maintained in a fit and proper state so as not to compromise the ability of vehicles to enter and exit the site in a safe manner or compromise operational efficiency of the road or public safety (eg. by spilling gravel onto the roadway).
4. The proposed development requires the construction and removal of crossovers. Separate approval under the Road Management Act 2004 for this activity may be required from VicRoads (the Roads Corporation). Please contact VicRoads prior to commencing any works.

1. Concurrent with the submission of amended plans required by condition 1, 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. The Landscape Plan must be generally in accordance with the Landscape Plan prepared by John Patrick Pty Ltd (Job No. 17-0205, Drawing No. VCAT01, dated May 2017) and must show:
   • (a) A survey (including botanical names) of all existing trees to be retained and of those to be removed. The intended status of the trees shown on the landscape plan must be consistent with that depicted on the development layout plan.
   • (b) Details of the surface finish of all pathways, paved areas and accessways.
   • (c) A planting schedule of all proposed trees, shrubs and ground covers including botanical names, common names, pot sizes, sizes at maturity and the quantities of each plant.
   • (d) Details of landscape irrigation (utilising stormwater harvested on the site, with mains back-up).
   • (e) Landscaping and planting within all open areas of the site.

1. Landscaping as shown on the endorsed Landscape Plan/s 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. The site must be drained to the satisfaction of the Responsible Authority.

1. Car parking spaces shown on the endorsed plans must not be used for any purpose other than the parking of vehicles, to the satisfaction of the Responsible Authority.

1. Low intensity lighting must be provided to ensure that car park areas and pedestrian accessways are adequately illuminated without any unreasonable loss of amenity to the surrounding area, to the satisfaction of the Responsible Authority.

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, naturestrip, kerb and channel to the satisfaction of the Responsible Authority.

1. All external lighting must be designed, baffled and located so as to prevent light from the site causing any unreasonable impacts on the locality, to the satisfaction of the Responsible Authority.

1. Concurrent with the submission of amended plans required by Condition 1, a Waste Management Plan to the satisfaction of the responsible authority must be submitted to and approved by 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 of a regular waste (including recyclables) collection service for the subject land including:
   • (a) the type and number of waste bins;
   • (b) screening of bins;
   • (c) type/size of trucks;
   • (d) frequency of waste collection;
   • (e) plan showing the layout of the bins at collection time including sufficient clearances from all street services, features and infrastructure;
   • (f) delivery of bins to waste collection points and retrieval of bins once collected;

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 site sheds on Council road reserves.
   • (k) Any other relevant matters, including the requirements of VicRoads.

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. This permit will expire if expire if one of the following circumstances applies:
   • (a) The development does not start within two years of the issue date of this permit.
   • (b) The development is not completed within four years of the issue date of this permit.

In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition

[1] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[2] 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.

[3] The plans refer to the level of the townhouses above the basement as the 'ground floor', the floor above as level 1, and the topmost floor as level 2. I therefore refer to the levels of the townhouses as ground floor, level 1 and level 2, rather than by reference to storeys or floors.

[4] Zolynda Projects Pty Ltd v Boroondara CC [2015] VCAT 947.

[5] Zolynda Projects Pty Ltd v Boroondara CC [2015] VCAT 947.

[6] Boroondara City Council, Precinct Statement, Character Precinct 67, October 2013, p 5.

[7] As I discern that the ground floor area and width of townhouse 3 is the same as those for townhouses 4 & 5, I have assumed that the secluded private open space for townhouse 3 is the same as that for townhouses 4 & 5 ie 14 square metres. Hence, I calculate the width of each of the townhouses as 4.3 metres. I make that calculation because the width is not dimensioned on the plans.

[8] Victorian Civil and Administrative Tribunal Act 1998 s 115CA.

[9] Shenfield v Bayside CC [2016] VCAT 2161.