1. The decision of the Responsible Authority is affirmed. No permit is granted in permit application no. 0263/10.

Mr J Gobbo, QC, and Mr P Connor, Barristers, instructed by Norton Rose.

Mr M Sheppard, Urban Design Consultant, David Lock and Associates.

Mr J Kiriakidis, Traffic Engineer, GTA Consultants.

Mr C Czarny, Hansen Partnership, Urban Design Consultant.

Bruce and Christine Fountain, Claire Martin and Harry Nicolau

Anne and Bing Ong Tan, Robert Rice, Corinne Meagher, Rodney and Hildegard Dare, Ian Phillips.

Frank Perry, Town Planning Consultant, Frank Perry and Associates.

Development of a 12 storey building with basement car parking (101 spaces). Shops and licensed restaurants at ground floor level, office space at first floor level and 114 apartments in the remaining levels.

Section 79 Planning and Environment Act 1987

cl. 34.01-4 (Construction of buildings and works in B1Z)

cl 52.06-1 (Reduction in car parking requirement for dwelling)

1. Raywood Nominees Pty Ltd has applied to the Stonnington City Council for a permit to construct a twelve storey building containing shops, restaurants, offices and apartments over basement car parking at 300 Toorak Road, South Yarra. The council failed to grant the permit within the prescribed time but subsequently decided to refuse the permit application on 5 grounds. In summary, the grounds of refusal assert that the height and scale of the proposed building do not respect the existing or preferred neighbourhood character or comply with Chapel Vision; some dwellings provide poor amenity for future occupants; inconvenient bicycle parking is provided for visitors and the design and layout of the car parking is unsatisfactory.
2. The respondent objectors also oppose the grant of the permit. They agree with the council that the proposed development is too high. However, they are also concerned about the extra traffic; the adequacy of car parking and various amenity matters including traffic, noise, overshadowing, overlooking and the disruption that would occur during construction.
3. Raywood has lodged this application for review against the council's failure to grant a permit and asks that we direct the grant of the permit. Raywood contends that the site is suited to accommodating the proposed building; there is strategic support for its development at the height and intensity proposed; the development is acceptable given the context; the apartments would provide acceptable amenity for future residents and the amenity impacts on neighbours have been managed and would not be unreasonable.

1. The issues are:
   • Is the proposed building too high?
   • Has the interface with the properties to the south been managed appropriately?
   • Is the internal amenity of some apartments satisfactory?
   • Can the traffic generated by the proposed use of the building be accommodated?
   • Is the car parking satisfactory?
   • Is the loading bay satisfactory?
   • Will the proposal have unreasonable impacts on the amenity of neighbours to the south due to overlooking, overshadowing, noise and construction activity?

1. The subject site is located on the southeast corner of Toorak Road and Cunningham Street South Yarra. The site is almost square in shape with an overall area of about 1630 square metres and frontages of 41.07 metres and 39.62 metres to Toorak Road and Cunningham Street respectively. The site is occupied by a single storey building that wraps around the street frontages. The building contains 6 tenancies used for shops and a restaurant. At-grade car parking is at the rear or south side of the building. A laneway of about 3.8 metres in width, extending between Cunningham and Clara Streets, abuts the site's rear southern boundary. The at-grade car park is accessed from this laneway. The site has slight fall of about 1.9 metres from the southwest to the northeast.
2. Contextually the site is located within the Prahran/South Yarra Principal Activity Centre [PAC], about 110 metres east of the Chapel Street/Toorak Road intersection. Fixed rail transport is proximate to the site on both Toorak Road and Chapel Street.
3. Properties to the north, west and east are used for a variety of retail and commercial purposes while the area to the south is residential.
4. Buildings directly opposite the site and further east on the north side of Toorak Road up to Rockley Gardens are predominantly 2 storeys high. The retail/commercial area to the northwest contains a number of tall buildings. These include the Lonsdale apartment building on River Street which rises to about 17 levels and the Como development on Toorak Road comprising 3-4 level podium with high rise tower setback from the road frontage. Further west on the Fun Factory/Capital Bakery site[1] approval has been granted for a high rise tower comprising 32 levels above a 6 level podium. The Fun Factory/Capital Bakery site forms part of the Forrest Hill precinct, an area that was predominantly industrial but under current planning strategies earmarked for substantial redevelopment.
5. Development on the south side of Toorak Road, between Surrey Road North and Chapel Street, mainly comprises retail/commercial buildings of 1-3 storey scale. There are 3 buildings which exceed this predominant height. These are a 6 storey building directly to the west of the site on the southwest corner of Toorak Road and Cunningham Street, with two 5 storey buildings further east.
6. The area to the south of the site is residential, mainly comprising single and double storey dwellings. Mr and Mrs Fountain reside in a dwelling immediately to the south of the site on the opposite side of the rear laneway. Other objectors reside further east along the laneway while Mr Nicolau resides in a dwelling further south. This area is within a heritage overlay.

1. The proposal involves the redevelopment of the site with a 12 storey mixed use building with basement car parking. The ground level of the building is divided into a number of tenancies, each with a frontage to either Toorak Road or Cunningham Street. They are to be used as shops and restaurants. About 573 square metres of office space is to be provided at Level 1 with the balance of this level provided for apartments. Apartments are also to be provided from Level 2 through Level 10. A total of 114 apartments are proposed. Communal facilities including a gym, dining/lounge area roof terrace are to be provided at the uppermost level.
2. A mix of studio, 1 and 2 bedroom apartments with open plan living areas are proposed. All apartments are provided with balconies for open space. Some apartments have 'internal' bedroom areas. These bedrooms are segregated from the living areas partly by walls and sliding screens. They rely on borrowed light from living areas as they do not have external windows.
3. The two basement levels provide for car parking, bicycle parking, storage and rainwater tanks. One hundred and one car parking spaces are to be provided. Of these, 40 are within mechanical stacker units each capable of accommodating 2 cars. Access to the car park is from the rear laneway via a ramp at the rear southeast corner of the site. A loading bay off the laneway which is proposed to be widened to 6.4 metres adjacent to the site is also to be provided.
4. The overall height of the proposed building is about 36.5 metres. The building has been designed with a contemporary architectural style. The building form includes the Ground and Level 1 constructed to Toorak Road, with a street wall or podium approximately 8.5 metres above the footpath. The façade to Levels 2 through Level 9 above is to be stepped back approximately 3 metres, with further stepping on the final two levels of between 3.755 and 8.055 metres. However, the balconies protrude into this setback area. The curved nature of the balcony form results in curved balustrades that are setback between about 1 and 1.8 metres from Toorak Road.
5. The rear of the building also presents a stepped form to the laneway. The lowest 3 levels, Ground through Level 2**,** presents a wall height of about 10 metres, setback approximately 2.5 metres from the rear boundary to facilitate widening of the laneway adjacent to the site. The curved setback to the rear increases progressively from about 10.5 metres from Level 3 to Level 8, then up to about 19.3 metres to Level 9, 10 and the Roof Terrace.

1. The site is zoned Business 1. Under the zone[2], 'Shop' and 'Food and drink premises' are as of right land uses, however a permit is required to use the site for offices and dwelling[3]. A permit is also required under the zone control for the construction of buildings and works. Relevant matters to be considered are at clause 34.01-4. These include the streetscape, interface with the adjacent residential area, car parking and storage of waste.
2. The site is affected by 2 overlay controls. Part of the site is subject to the Land Subject to Inundation Overlay [LSIO]. A permit is required under clause 44.04-1 for buildings and works. The views of Melbourne Water must be sought. Melbourne Water has advised that it does not oppose the grant of the permit subject to the basement levels being setback 1.5 metres from the Toorak Road boundary.
3. The land is also subject to the Design and Development Overlay [DDO], with the provisions in schedule 7 [DDO7] being applicable. The DDO was introduced into the planning scheme via Amendment C78[4]. A permit is required under the DDO. DDO7 is a tool to implement council's planning strategy for the Prahran/South Yarra Principal Activity Centre known as Chapel Vision. DDO7 is quite detailed, setting out design objectives; defining areas where different levels of change can be expected; preferred built form outcomes in terms of building height and setbacks; specific matters relating to building design as well as decision guidelines. We will discuss the relevance of Chapel Vision and application of the DDO7 later in these reasons.
4. A permit is also required to reduce the standard car parking required under clause 52.06; the loading bay dimensions under clause 52.07 and the use of land for the sale and consumption of liquor under clause 52.27. General decision guidelines are at clause 65.
5. The various decision guidelines require consideration to be given to the various planning policies in the scheme. There is a raft of planning policies in both the State and Local Planning Policy Frameworks that are in some way applicable to the consideration of this proposal. They are listed in the submission presented on behalf of the council and Ms Heggen's report. We do not propose to relist them here. However, it is relevant to note that under Amendment C78, several policies have been modified to reflect the introduction of DDO7 and the need to consider Chapel Vision. We will refer to planning policy as appropriate in our discussion under the various issues.

Has the interface with the properties to the south been managed appropriately?

1. We discuss these two issues together.
2. Raywood contends that the height and bulk of the proposed building are acceptable having regard to the attributes of the site, the direction given by planning policy, the response to the physical context and impact on the amenity of neighbours.
3. We accept that the site offers a substantial opportunity for redevelopment. The site is part of a Principal Activity Centre, a location where higher density residential development is specifically encouraged under state policy. The zoning of the land is Business 1, a zone whose purpose includes the implementation of policy and contemplates intense development. The site is relatively large. It is relatively free of physical constraints. Although partly affected by the LSIO, Melbourne Water's response is that subject to a setback from Toorak Road, a large development with basements can be accommodated. The existing buildings are somewhat outdated. Based on the design objectives[5] and preferred development height set out in DDO7 as well as the strategies in the planning scheme, what exists represents an underutilisation of this site. Their removal and replacement with a new development is appropriate. The slope of the site is moderate; there is no vegetation or awkwardly positioned easements to contend with and all services are available. The site is on a corner, has a frontage to a busy arterial road and has the benefit of an abuttal to a laneway. There is an extensive range of facilities; retail, commercial and entertainment, nearby. There is excellent access to public transport. It is a good site for redevelopment.
4. There is also strong support for a mixed use development comprising predominantly residential land use on this site. State planning policy encourages a diversity of housing types in and around activity centres[6], increasing the supply of housing in existing urban areas;[7] and ensuring housing stock matches changing demand by widening housing choice[8]. In terms of local policy, the MSS encourages the provision of a variety of dwelling types[9] while the Prahran/South Yarra activity centre is identified as a Principal Activity Centre[10]. Under the new clause 22.19 introduced via Amendment C78, it is policy to:

Support the provision of further and a greater range of housing opportunities, including higher density housing in appropriate locations within the Activity Centre.

1. Further, the basis for the new policy at Clause 22.19 is to implement the land use components of the Chapel Vision Structure plan, a plan which seeks to, amongst other things, implement the strategies set out in Melbourne 2030 and Melbourne at 5 million.
2. There is no doubt that a proposal involving the redevelopment of a good site within this activity centre for predominantly residential use is consistent with the thrust of this aspect of planning policy. As such, we do not accept Mr Gillard's proposition that the applicant should be required to demonstrate that there is a need for a high density residential development on this site. The reality is that planning policy, at both the state and local level, specifically contemplates and encourages higher density residential development in this activity centre. Further, we accept Mr Gobbo's proposition that planning policy and the controls that are in place to implement it support development that seeks to optimise the use of land in this centre. In this regard we note that a design objective in DDO7 is "to avoid the under development of land within the activity centre".
3. While higher density development and the optimisation of development on land in this activity centre are encouraged, it must be acknowledged that the "vision" or outcome to be achieved in the various parts of the activity centre differs. The site is located in the Prahran Precinct[11]. The vision statement for the Prahran precinct envisages:

A re-vitalised civic, entertainment, social and historic core as the heart of the Prahran Community. An enhanced precinct role and identity as a community, retail commercial, social and residential hub, with enhanced land use capabilities and improved interfaces between conflicting night/day-time and visitor/residential uses.

1. From this vision statement, the notion of re-vitalisation, enhancement and improved interfaces can be extracted. This can be contrasted with the South Yarra precinct, which covers the area to the northwest of the site and Forrest Hill, where the notion of transformation and development that will change the dynamics of South Yarra are envisaged.
2. The different approach to be taken is then reinforced by the provisions of DDO7. Under clause 2.0, the subject site is located in an area of moderate change which area described as:

............areas where a moderate change in new development is expected to occur. In these areas there will be incremental opportunities for infill development consistent with the preferred future character of the area.

1. Again this can be contrasted with the area on the north side of Toorak Road, west of River Street which is identified for "substantial change" which can accommodate "significant new development and where substantial changes from the form and character of existing development can be proposed".
2. The site is located in an area where a preferred maximum building height of 19 metres is specified under DDO7. This preferred height would allow for a development of about 5-6 storeys. The preferred height is not mandatory; however, Clause 2.2 of DDO7 says that buildings should be constructed in accordance with the height and setbacks specified for each area. As the control is not mandatory, discretion exists for buildings that exceed the preferred height to be approved. The decision guidelines require consideration to be given to the design objectives and buildings and works requirements at clauses 1.0 and 2.0 of DDO7 as well as Chapel Vision.
3. The three experts called on behalf of the applicant expressed the view that the proposed development, at 12 storeys, achieves the character and interface objectives set out in clause 1.0 of DDO7. In particular, it was said that the 12 storey height proposed would fit in with the streetscape character of this part of Toorak Road which is influenced by tall built forms on the north side, while the stepped and curved design of the rear of the building would present a suitable transition to its residential interface to the south.
4. We do not agree with these propositions.
5. The design objectives in Clause 1.0 of DDO7 include:

To encourage innovative, high quality and well designed buildings which complement the existing urban fabric and the mixed use character of the Activity Centre and which achieves the preferred built form outcomes for the Activity Centre as set out in this Schedule.

To facilitate the redevelopment and/or revitalisation of identified strategic areas consistent with the requirements of this Schedule.

To ensure new buildings minimise amenity impacts on residential areas at the fringe of the Activity Centre by providing a sensitive transition in terms of built form, scale, setbacks, overshadowing, overlooking and landscaping.

1. We accept that the proposed building displays high architectural quality. However, we do not accept that the building, at the height proposed, represents an acceptable response to the context.
2. It is clear that there are tall building elements on the north side of Toorak Road, on the Como development and in the Forrest Hill precinct. However, it is also clear that the built form on the south side of Toorak Road is more subdued in terms of building height. Unlike the towers on the north side, the tallest buildings are 5-6 storeys. The preferred maximum height for this area envisages a built form that approximates the height of these buildings.
3. The proposed development, at 12 storeys, is just under twice the preferred height. It would introduce a new built form element into the streetscape along the south side of Toorak Road, more akin to the tower form of development found in the area on the north side of Toorak Road. It would not complement the existing urban fabric which exists on the south side of Toorak Road.
4. Further, it is relevant to note that properties on the south side of Toorak Road need to deal with the sensitivity of the residential interface to the south. As previously noted, the residential area to the south of the site is mainly comprised of single and double storey dwellings. It is an area covered by the Heritage Overlay. While we were not presented with evidence to demonstrate that the proposed development would have an adverse impact on the heritage significance of this area, nonetheless the existence of this control will limit the extent of change that can occur. Given this interface, we see the strategic rationale behind the specification of a lower preferred height for development on the south side of Toorak Road in terms of providing a transitional height to the sensitive residential area.
5. We acknowledge that the building has been designed to step down towards its residential interface and the rear facade is articulated and presents visual interest. However, we agree with Mr Czarny that the extent of visual bulk presented by the proposed building would be overwhelming on its fine grain residential neighbours to the south.
6. Regarding new development, Clause 2.1 in DD07 states that incremental opportunities for infill development consistent with the preferred future character of the area exist. This proposal is not consistent with that intent.
7. We find that the height and bulk presented by the proposed development to be inappropriate. We are not satisfied that the preferred building height specified in DDO7 should be exceeded to the extent proposed. The departure from the preferred height is too great. The proposal is therefore refused.
8. We acknowledge that Chapel Vision and the DDO7 have not been tested through an independent panel process. The explanatory report to Amendment C78 states that more work is required, particularly in terms of refining suitable heights that respond to the existing context and preferred character. Nonetheless, an interim control has been introduced into the scheme. Chapel Vision, the strategic document that underpins the control, is now a reference document in the scheme. Interim controls are there so that the objectives of Chapel Vision are not compromised. We must give them weight as they are now part of the scheme.
9. While we have decided that this proposal should be refused, this should not be taken to mean that the preferred height in DDO7 should be applied as a maximum height. To do so would undermine the discretion that is available under the DDO. In relation to this site, we would not consider a building that approximates the height of the building to the west as being inappropriate, albeit that such a building would exceed the preferred height. This is because it would respond to the existing building height on a neighbouring property that is also within the moderate change area.

Is the internal amenity of some apartments satisfactory?

1. The council submits that there are too many apartments with bedrooms that rely on borrowed light; there are numerous balconies that are too small and bicycle parking facilities for visitors are not appropriately located on Cunningham Street.
2. The proposal provides for 60 one bedroom apartments. Of these, 48 would contain internal bedrooms that rely on 'borrowed light' from the adjacent living room windows. Mr Wong submits that this reflects poor design as there would be too many apartments that would provide poor amenity.
3. Ms Heggen acknowledged that the south facing apartments with bedrooms relying on borrowed light should be redesigned. It is her view that such bedrooms would not receive satisfactory amenity given their southern orientation. However, in relation to the other apartments, it is her view that these would receive adequate daylight.
4. This not the first time that this issue has been argued before the tribunal. In PDG Corporation Pty Ltd v Yarra City Council[12] the tribunal observed:

Perhaps a planning decision should not be seeking to impose higher light and ventilation requirements than established by the BCA, but rather it should consider the overall amenity of the dwelling. However the point remains that the most ubiquitous form of housing developed within our cities is developed without any planning system over sight as to internal amenity.

Nevertheless if we agree that the planning system's role is to consider the overall amenity of a dwelling then it is this approach which lead to Mr Hewet to conclude in North & West Melbourne Association Inc v Melbourne CC[13] that a single bedroom dwelling in which the bedroom relies on borrowed light is to be preferred over a bedsit dwelling notwithstanding the fact that no part of the bedsit relied on borrowed light. A judgement no doubt based upon the fact that a dwelling which provides separate living and sleeping spaces is to be preferred over one which does not...........

There are decisions which at least refer approvingly of the "low" percentage of dwellings within a development which are reliant on borrowed light for some rooms within the dwelling.

I think that must be an irrelevant consideration. If a decision is made that a particular dwelling design provides an appropriate level of amenity then that decision is valid for all such dwellings. The amenity of a particular dwelling is not changed by the fact that there are other dwellings within the same development based on a similar design standard.

1. The BCA sets a minimum standard for daylight into dwellings. There was no evidence submitted that this would not be achieved. From this it could be concluded that the proposed bedroom areas would receive adequate daylight.
2. However, this is not a matter that is limited to the BCA. Objective 5.4 of the Guidelines for Higher Density Residential Development seeks:

To ensure that a good standard of natural lighting and ventilation is provided to internal building spaces.

1. Design suggestion 5.4.1 under this objective is:

To provide direct light and air to all rooms wherever possible.

1. Direct natural light and ventilation to all habitable rooms, whether living rooms, bedrooms and studies is encouraged. The design suggestion goes on to say that the 'borrowing' of light and air should be avoided.
2. Provided that BCA requirements can be met, we are unable to conclude that the dwellings in question would receive inadequate daylight. However, we are able to conclude that apartments with rooms relying on borrowed light may have lesser amenity than those that do not. It is in this sense that the Guidelines suggest that the 'borrowing' of light and air should be avoided, presumably because it results in dwellings with lower amenity albeit that the requirements of the BCA are met.
3. In most developments of this size and type, it is inevitable that some dwellings will have better amenity than others. However, in deciding whether or not a permit should be granted, it is relevant to consider whether the building contains a high proportion of dwellings that provide internal amenity at the bottom end of acceptability. This is a matter that goes to design quality bearing in mind the outcome sought under the Guidelines and policy which encourages high quality urban design and architecture that, amongst other things, enhances liveability and energy efficiency. However, this aspect of the amenity on offer must also be balanced against other planning objectives including the provision of increased housing in locations well served by facilities, services and public transport as well as affordable housing. On balancing these planning outcomes, we would not reject this development because of the number of internalised bedrooms.
4. In relation to the concerns raised in relation to balcony sizes and location of bicycle parking for visitors, these are matters of detail that could quite readily have been resolved by conditions should we have decided to grant the permit.

Can the traffic generated by the proposed use of the building be accommodated?

1. Mr Gillard raises concerns about the additional traffic generated by the proposal. He submits that the area is already heavily congested and there would be difficulties entering Toorak Road from Cunningham Street. He submits that this difficulty would result in vehicles leaving the site via the residential area to the south rather than via Toorak Road. He further contends that the use of the laneway for access purposes would have unreasonable impacts on the dwellings immediately to its south, particularly that of Mr and Mrs Fountain.
2. We accept Mr Kiriakidis analysis that the proposal would generate about 207 vehicle movements per day, of which 34 movements are likely to occur in the peak hour period. This however is not the additional traffic. The existing use of the site already generates about 55 movements per day[14].
3. The assessment undertaken by Mr Kiriakidis demonstrates that the Toorak Road/Cunningham Street intersection would operate at 0.3 degree of saturation with 2 vehicles representing the 95 percentile queue length. Given these results, we accept Mr Kiriakidis's view that the intersection would operate in a satisfactory way. Some people coming to and from this site may choose to navigate their way through the residential streets to the south, if as suggested by Mr Nicolau, access to the wider area is available from them. However, we consider that the number of people who would wish to undertake this would not be so substantial as to create an unreasonable traffic impact.
4. Traffic counts undertaken indicate that there are about 133 vehicle movements per day at the Cunningham Street end of the laneway. Of these, 55 can be attributed to the existing use of the site. The proposed development would generate about 207 vehicle movements each day. The existing movements (less those generated by the existing use of the land) and together with the daily movements generated by the proposed use of the land would result in about 285 vehicle trips per day in the laneway. We agree with Mr Kiriakidis that although the laneway would be close to capacity, the traffic volumes can be accommodated.
5. There is no doubt that the laneway will become much busier. It will be noticeable. However, we are unable to conclude that the level of use would have an unacceptable impact on the amenity of Mr and Mrs Fountain's property. Whether the impact is reasonable or not must be considered in light of the context. The site is in a PAC. Intensive development is encouraged. The laneway serves properties in the PAC. It is there to be used. Access off the laneway is to be preferred if it can be managed. In this case we are satisfied that the number of movements in the laneway can be accommodated and satisfactory access to the site off the laneway is available.

1. The council accepts that a satisfactory number of car parking spaces are to be provided for the proposed use of the site. It also accepts that, subject to some refinement, the layout of the spaces is workable and the reliance on mechanical stacker units is satisfactory.
2. Mr Gillard questions whether it is appropriate to allow a reduction in parking numbers of the size proposed given the difficulties that nearby residents currently experience in the area. In particular, Mr Gillard raises concerns about the added pressure generated by visitors to the site.
3. Mr Perry also questions the extent to which mechanical stacker units are to be used. He submits that the extent to which there is a reliance of mechanical stackers is excessive and there is no other example of a development where there is a similar level of reliance on such units.
4. Applying the standard provisions of clause 52.06, 380 car parking spaces are required. However, the provisions at clause 52.06-1 also allow for a permit to be granted to reduce the number of spaces to be provided having regard to a number of factors including the availability of parking and public transport in the locality, the sharing of car spaces by multiple uses, an empirical assessment of parking demand and any other relevant consideration. The local policy at clause 22.13 also contemplates reductions in the car parking having regard to similar factors and the responsible authority being satisfied that the amenity of nearby residents will not be adversely affected.
5. The empirical assessment set out in table 4.2 of Mr Kiriakidis's report indicates that the proposed use of the land could be expected to generate 100 car parking spaces. This empirical assessment is based on ABS data, surveys, and the rates applied for other development in the activity centre. Comparisons with other relevant parking rates, such as those set out at clause 55 of the planning scheme were also considered.
6. It is clear that the total number of spaces to be provided is well below the standard rate at clause 52.06. However, we find that the empirical assessment undertaken by Mr Kiriakidis demonstrates that the proposed use of the land is likely to generate far less parking than what is specified in the standard rate and that the car parking to be provided is appropriate. We have come to this conclusion for a number of reasons.
7. The ABS data demonstrates a low level of car ownership for smaller studio and 1 bedroom apartments.
8. The rates that have been applied by Mr Kiriakidis for the retail, offices and restaurant uses are based on those which have been found to be acceptable on other nearby sites in the activity for these uses.
9. Broadly speaking, there are well over 200 car parking spaces available in the wider area at the peak demand times with over 600 spaces available on Friday and Saturday evenings when the night time activity would be at its peak in the activity centre[15]. Even though there is a very high demand for on street spaces during peak times, car parking resources are available for visitors and customers within the larger car parks that exist in this area.
10. The site is well served by public transport. It is on the principal public transport network. The site is also in an area where there is traffic congestion at peak times. Policies that support sustainable development encourage development and use of the type and in locations where reliance on travel by private cars is reduced. The small size of many apartments, the proximity to excellent public transport as well as the wide range of facilities and services within easy walking distance all work toward reducing parking demand. Further, restricting the number of car parking spaces available, or at least ensuring that they are not provided in abundance, works toward discouraging car use. This is an outcome consistent with Chapel Vision. It is also consistent with the policy at clause 22.12-3 of the planning scheme where applicants are required to limit on-site parking in areas where high traffic volumes are experienced.
11. Accordingly we accept that the provision of 101 car parking spaces is sufficient to serve the needs of the proposed use and development.
12. We have also reviewed the car parking layout. The layout conforms to the requirements of both the planning scheme and the relevant Australian Standard. We note Mr Kiriakidis comment that some ramp grades may not fully accord with the Australian standard. However, on reviewing the proposal at the hearing, he expressed the view that these could be satisfied even if the basement is setback off Toorak Road as required by Melbourne Water.
13. The use of mechanical car stacker units as proposed is acceptable. While Mr Kirikidis was unable to point to an example where 20 car stacker units have been used as part of a residential development, we do not accept Mr Perry's submission that the reliance on these units is excessive. The use of car stacker units is no longer uncommon. It is far from a new technology. There can be delays while waiting operating such units to make the vacant space accessible. However, the delay is relatively short. It is not unacceptable when consideration is given to the location of the stacker units, the number of likely movements and the aisle widths which allow for two way movements.
14. Overall the car parking to be provided is acceptable.

1. Mr Gillard raised concerns about the adequacy of the loading bay. He submits that the loading bay is too small, would be unsuitable for garbage trucks seeking to remove waste from the land and would be difficult to access.
2. The loading bay to be provided does not meet the minimum dimensions set out in the planning scheme; but this would not be unacceptable.
3. It is the retail use that generates the need for the loading bay under the provisions of clause 52.07. There is no requirement for a loading bay the other uses proposed. Given that the retail component of this development is relatively small; and small shop tenancies are proposed, it is arguable as to whether a loading bay is necessary. This is particularly so given that the retail activity would be mainly located on Toorak Road and on street loading bays are available near the site.
4. Nonetheless a loading bay is provided as part of this proposal. It does not meet the minimum dimensions set out in clause 52.07 in terms of the head clearance. A head clearance of 3 metres is proposed rather than 4 metres required under clause 52.07. We agree with Mr Kiriakidis that the loading bay would be able to accommodate vans and trucks up to 6.4 metres in length. We accept that vehicles up to this size would be able to turn into the loading bay given that the laneway is to be widened[16].
5. We expect that most deliveries to small shops like those proposed would be made by vans and smaller trucks. The loading bay will be able to accommodate these. Further, the loading bay would also be available for use by occupiers of residential apartments. Given the size of the apartments, it is probable that furniture would be delivered by smaller trucks. Although not required as part of the residential component, the loading bay would be available for this activity.
6. It is unlikely that the loading bay would be able to accommodate large garbage trucks. However, garbage collection from developments like this can be undertaken in a number of ways. This can include the use of smaller vehicles with waste and recyclables stored in receptacles of an appropriate size. This is typically dealt with by way of a waste management plan which can be implemented by a private contractor managed by the body corporate.

Will the proposal have unreasonable impacts on the amenity of neighbours to the south due to overlooking, overshadowing, noise and construction activity?

1. We have considered these matters in light of the concerns raised on behalf of the respondent objectors.
2. Subject to the provision of screening measures to the lower levels of the building, there would be limited opportunity for direct views into neighbouring dwellings.
3. The extent of overshadowing onto neighbouring properties is also limited and within acceptable bounds for this context.
4. We accept that there is the potential for more noise, particularly due to the extra traffic in the laneway. However, the noise would be consistent with the type of activity that should be reasonably anticipated in this context. Noise from plant equipment such as air conditioners is regulated. Compliance is expected. The design of the development directs people activity toward the site's street frontages. We do not accept that the noise generated by people activity would be unreasonable in this context. From time to time "people activity" results in noise that can be heard by neighbours. This happens in all urban environments. Such activities are not allowed to occur in an unfettered way. Residents and patrons of businesses are required to behave in a reasonable way so as to not cause nuisance. If they do not, then action can be taken to rectify this either though enforcement of permit conditions or police intervention.
5. Mr Gillard raises concerns about disruption to residents during the construction process. We accept that when a significant development occurs, nearby residents are likely to be inconvenienced from time to time. However, we do not accept that this site is so constrained that the impacts associated with construction activity cannot be managed in the usual way for projects of this size and type; that is, through a requirement that the applicant prepare and implement a construction management plan.

1. The site presents a good opportunity for redevelopment. The redevelopment of the land for the proposed commercial uses and apartments is appropriate given its attributes and context. Policy and the zone purpose support its redevelopment for the proposed uses. However, we find that the height of the building and the resultant visual bulk presented are not appropriate. They do not respond appropriately to preferred character envisaged, nor to the design objectives of DDO7 in terms of responding to the prevailing urban fabric along the south side of Toorak Road and providing an acceptable interface with the residential area to the south.
2. We have considered whether a permit can be granted by reducing the height of the building. To achieve an acceptable outcome, 4 to 5 levels may need to be removed. We do not favour chopping the height of a building that has been designed to achieve 12 storeys. We consider that the design as a whole should be revisited and a new proposal submitted.
3. We will therefore affirm the council's decision. No permit is granted.

[1] Located on the northwest corner of Chapel Street and Toorak Road

[3] A permit is required for residential use as the entry off Cunningham Street is wider than 2 metres.

[4] Amendment C78 was approved by the Minister for Planning under Special Gazette on the 5 November 2010, 3 days before the hearing.

[5] To avoid the under development of land in the Activity Centre is a design objective in clause 1.0 of DDO7

[6] See clauses 11.01-2 , 11.04-2 and 16.01-2

[12] [2009] VCAT 737

[13] [2002] VCAT 485

[14] See Section 2.2.3 of Mr Kiriakidis's GTA traffic report.

[15] See Section 2.4 of Mr Kiriakidis's report

[16] A formal widening is not proposed. However, the building will be setback off the laneway thus creating a widened area for traffic and turning movements.