Raywood Nominees Pty Ltd v Stonnington CC [2012] VCAT 616

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

TP1.00/A, TP1.01/B, TP1.02/C, TP1.03/B, TP1.04/C, TP2.01/C, TP2.02/B, TP2.03/ATP3.01/C, TP3.03/C, TP3.03/C, TP3.04/C, TP3.05/B

1. The decision of the Responsible Authority is set aside.
2. In permit application 0562/11 a permit is granted and directed to be issued for the land at 300 Toorak Road, South Yarra in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • Construction of a building in a Business 1 Zone, Design and Development Overlay and Land Subject to Inundation Overlay, a reduction in the car parking requirement for use of the site as dwellings as well as shops and restaurants (as of right uses) with associated restaurant and café, use of the land for dwellings, use of land to sell or consume liquor.

Mr Jeremy Gobbo QC and Mr Paul Connor of counsel, instructed by Norton Rose Solicitors

Mr Gobbo QC called expert evidence from Mr Andrew Biasci, town planner, Mr Mark Sheppard, urban designer, and Mr Jason Walsh, traffic engineer.

Mr Roger Gillard of counsel appeared for H & S Nicolaou, F & A Gough, Bing Ong Tan & Anne Ong Tan, B Fountain, I & K Macdonald, E Wilkinson, V Kirton, R Rice & C Meagher.

Mr Gillard called expert evidence from Ms Yvonne von Hartel, architect.

Ms R Wilson, solicitor, appeared for Dr M Colligan.

Soolin Ong Tan, K & J Snodgrass, C Devlin, and R Maddern, all appeared on their own behalf.

Construction of an eight storey building comprising ground floor retail tenancies and restaurants, and dwellings on the upper levels. Car parking is provided in three basement levels. Vehicular access is available via the eastern end of the rear laneway. A loading area is located further to the west. The lane is proposed to be widened by providing a building setback from the lane boundary creating a widened area for traffic and turning movements.

Application under Section 77 of the Planning and Environment Act 1987.

Clause 44.04 : Land Subject to Inundation Overlay (LSIO)

Clause 43.02: Design and Development Plan Overlay (DDO7)

Clause 34.01-1: A permit is required to use land for dwellings (the frontage at ground floor level exceeds 2 meters).

Clause 34.01-4: A permit is required to construct a building or construct or carry out works.

Clause 44.04-1: A permit is required to construct a building or construct or carry out works. An application must be referred to Melbourne Water.

Clause 43.02 Schedule 2: A permit is required to construct a building or construct or carry out works, unless the schedule provides otherwise.

Clause 52.06-1: A permit is required for a reduction in the required provision of car parking.

Clause 52.27: A permit is required to use land to sell or consume liquor.

The review site is located on the south east corner of Toorak Road and Cunningham Street, Toorak. It has a frontage to Toorak Road of 41.07 m and to Cunningham Street of 39.62 m. It has an area of 1,630 m2. A 3.8 m wide laneway runs along the site's rear southern boundary. A single storey building comprising six retail premises currently occupies the site. Car parking is located at the rear.

Commercial buildings exist along both sides of Toorak Road in this locality. Development in this section of Toorak Road ranges in height from single storey to 6 storeys. A six storey building occupies the site on the south western corner of Toorak Road and Cunningham Street. This building is setback 7 metres from Toorak Road at the upper levels.

There is a low scale residential area to the south of the review site, commencing on the south side of the laneway. Dwellings abut the southern side of the laneway, adjacent to the review site.

The site is very well located in terms of its access to public transport, retail, entertainment and other services and faculties.

Raywood Nominees Pty Ltd v Stonnington CC [2010] VCAT 1946.

Athedim (Vic) Pty Ltd v Moonee Valley CC [2010] VCAT 109.

Oxdra Pty Ltd v Stonnington CC (2012) VCAT 312.

TATU Developments v Stonnington CC [2011] VCAT 931.

Amoco Australia Ltd v Berwick CC (1983) 1 PABR 166.

1. Raywood Nominees Pty Ltd applied to the council for a permit to construct an eight storey building comprising a mix of commercial uses on the ground floor, and dwellings on the upper levels.
2. Notice of the application was required to be given and the council received 30 objections and a petition supported by 191 signatures, opposing the grant of a permit[1].
3. The council refused the application on the following grounds:
   1. The proposed development is contrary to the objectives of the State and Local Planning Policy Framework pursuant to the Stonnington Planning Scheme as it is not in keeping with and respectful of the existing and preferred neighbourhood character of the area by virtue of its height, massing and extent of built form.
   2. The proposed building height is excessive and does not comply with the Design and Development Overlay (DDO7) of the Stonnington Planning Scheme.
   3. The upper level setbacks are not adequate and does not comply with the Design and Development Overlay (DDO7) of the Stonnington Planning Scheme.
   4. Waste collection has not been adequately resolved. The development should be redesigned so that waste can be collected from a fully enclosed area without disturbing the residential amenity.

5. The proposal constitutes an overdevelopment of the site.

1. The council refused the application notwithstanding a recommendation from council officers to support the grant of a permit subject to conditions, including a condition requiring the height of the building to be reduced by one storey.
2. The permit applicant has applied to the Tribunal for a review of the council's decision.
3. Subsequent to the council decision, the applicant prepared and circulated amended plans. The amended plans provide additional car parking through the incorporation of one extra basement level. The parking access arrangements and aspects of the internal layout have also been amended. A continuous ground floor canopy on Toorak Road and Cunningham Street has been provided. There was no objection to the application to substitute the amended plans.
4. The objectors to the application oppose the grant of a permit on a variety of grounds that are related to their primary contention that the proposal is an overdevelopment of the site.
5. At the commencement of the hearing Ms Wilson, who appeared for an objector, advised that the her client had reached agreement with the applicant and, subject to the inclusion of permit conditions on any permit issued, was prepared to withdraw the objection. We indicated that the agreed conditions would be included in our Order, in the event that a permit issues (see conditions 3-8).
6. The application is the second attempt to obtain approval for a multi storey, mixed use development on the site. A previous application for a twelve storey building was refused by the council in 2010. The Tribunal, on review of that decision, affirmed the council's decision[2]. In that case the planning scheme controls applying to the land changed on the eve of the hearing, resulting in the introduction of DDO7. That overlay incorporates a preferred building height (19 metres), street wall height (12 metres) and setbacks (6 metres for any part of the building above 12 metres). The Tribunal in that decision concluded that the 12 storey proposal did not respond appropriately to the 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[3]. The Tribunal observed that a building that approximates the height of the building to the west would not be inappropriate, and that to achieve an acceptable outcome, 4 to 5 levels may need to be removed from that proposal[4].
7. The issues in this case can be summarised as follows:

1. What weight ought to be attributed to the Tribunal's previous decision? 2. Is the proposal acceptable having regard to the policy framework, zone, overlay and particular provisions of the planning scheme?

1. Does the proposal contribute to unacceptable amenity impacts?

1. Have the car parking, traffic management and waste disposal components of the proposal been adequately resolved?
2. Having considered the submissions and the evidence, and having inspected the review site, neighbouring properties and the surrounding neighbourhood, we have concluded that, subject to some additional design changes, a permit should issue. The height of the building needs to be reduced by the equivalent of two storeys, and a setback of 3 metres to Toorak Road above the street wall is required.
3. Our reasons are set out below.

What weight ought to be attributed to the Tribunal's previous decision?

1. The Tribunal in the previous, 2010 case, considered a 12 storey proposal incorporating a three storey scale to the south at the laneway, stepping up to eight and nine levels and then twelve levels fronting Toorak Road. Basement car parking was accessed off the laneway. A street wall height between 8 and 9 metres was proposed to Toorak Road, and between 6.64 and 8.22 metres to Cunningham Street.
2. The Tribunal made the following pertinent findings with respect to that proposal:
   1. The site is part of a Principal Activity Centre, a location where higher density residential development is specifically encouraged under state and local 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. The site therefore offers a substantial opportunity for redevelopment[5].
   2. The proposal at 12 storeys did not successfully respond to the site's designation as a Moderate Change Area, the Preferred Maximum Building Height of 19 metres and the Design Objectives of DDO7, because:

1. While there are tall building elements on the north side of Toorak Road, on the Como development and in the Forrest Hill precinct, the built form on the south side of Toorak Road is more subdued, with the tallest buildings being 5-6 storeys. The preferred maximum height for this area envisages a built form that approximates the height of these buildings[6]. 2. The proposal was just under twice the preferred height for this locality. 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[7].

1. Development on the south side of Toorak Road need to deal with the sensitivity of the residential interface to the south, which is mainly comprised of single and double storey dwellings, and is covered by Heritage Overlay. There is therefore a 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[8].

1. The extent of visual bulk presented by the 12 storey proposal would be excessive on its fine grain residential neighbours[9]. 3. The refusal of the application should not be construed 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[10]. 4. A building that approximates the height of the building to the west would not be considered as "being inappropriate", albeit 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[11]. 5. An acceptable outcome for this site may need 4 to 5 levels to be removed. Consequently the design as a whole should be revisited and a new proposal submitted[12].
2. The Tribunal also made a number of findings about matters including car parking, traffic management, loading and unloading, internal amenity and external amenity impacts, which were largely specific to the proposal being considered at that time. It is worth recording however that the Tribunal found these matters to be acceptable.
3. Mr Gillard takes issue with many of the Tribunal's findings in the 2010 case and in particular with the approach taken by the Tribunal in assessing the proposal against the provisions of the DDO7. He submits that the Tribunal "......considered the preferred heights, street wall heights and setbacks to be subservient to the responsible authority's discretionary power to impose unilaterally its own view of what is an appropriate height or setback"[13]. Mr Gillard submits that the Tribunal's approach cannot be right because, if it is, then no purpose is served by the preferred measures expressed in Table 1 of DDO7.
4. Mr Gillard submits therefore that we should not be influenced to any significant degree by the Tribunal's decision in the 2010 case, especially with respect to its findings about what might constitute an acceptable building height[14].
5. The principles for dealing with repeat appeals in the planning jurisdiction have been established and accepted over a long period[15]. In broad terms, the principles establish that while the Tribunal is not bound by precedent and must consider the current application on its merits, great weight ought to be accorded to the first decision of the Tribunal. In the absence of any material change of circumstances of the land, and its surrounds, changes in planning policy and/or changes in the interpretation of the facts or law relevant to the Tribunal's consideration, or changes in the proposal itself, the first decision of the Tribunal should be followed.
6. There has been no material change to the physical context of the site and its surrounds, and there has been no material change in the planning policy or law relevant to the Tribunal's consideration, subsequent to the Tribunal's previous decision.
7. In this case therefore, the key factors for consideration are whether significant or material changes have been made to the application which respond to the reasons for refusal of the previous proposal. It is also necessary to consider whether the changes which have been made to the proposal raise new issues not previously considered by the Tribunal.
8. With respect to Mr Gillard's submission about the weight that should be accorded to the Tribunal's 2010 decision, we reiterate that we are not bound by the findings of the Tribunal in that case. It is appropriate for us to have regard to the Tribunal's findings in the 2010 case, and the fact that current proposal has been reduced in height by 4 storeys is also a relevant consideration. However the acceptability of the current proposal must be assessed afresh because the building we are considering is different from that considered in the 2010 case. It is relevant to note that the Tribunal's findings that the 12 storey proposal should be reduced by 4 to 5 storeys, needs to be considered in the context that the Tribunal also commented that it was not prepared to approve a building designed for 12 storeys, by reducing the height by 4 to 5 levels. The Tribunal observed that the design of the building as a whole needed to be revisited and a new proposal submitted.

Is the proposal acceptable having regard to the policy framework, zone, overlay and particular provisions of the planning scheme?

1. In relation to the current proposal the state and local planning policy framework seeks to:
   • Encourage residential consolidation of established urban areas;
   • Facilitate residential and commercial development in existing activity centres and where good access to public transport exists;
   • Encourage the design of energy efficient buildings;
   • Ensure that development improves housing choice, makes better use of existing infrastructure and improves energy efficiency of housing;
   • Achieve high quality urban design and architecture that reflects the particular characteristics, aspirations and cultural identity of the community;
   • Encourage the provision housing to accommodate future housing needs and preferences of the local community;
2. The council and objectors acknowledge that the applicable policy framework supports a development of this site incorporating a mix of uses and a building of a height and scale greater than that currently occupying the site. Those attributes of the site that led the Tribunal in the 2010 case to conclude that the site offers a substantial opportunity for redevelopment, are also acknowledged[16].
3. The council and the objectors submit however that the provisions of the DDO7 that applies to the site are determinative in arriving at a decision about the appropriate height, scale and form of development. Table 1 to the DDO7 specifies preferred maximum building heights (19 metres), preferred minimum street wall heights (8 metres), and preferred minimum street setbacks (6 metres for any part of the building that exceeds 12 metres).
4. The proposal varies from the provisions of Table 1 in terms of its height (26 metres approx. proposed). The street setback from Toorak Road is 1055 mm between levels 3 and 5, and 1110 mm above level 5; from Cunningham Street it is 1860 mm between levels 1 and 5 and 3260 mm above level 5.
5. The council submits that while discretion exists to vary the preferred heights and setbacks, this discretion must be exercised with care in order to ensure that the preferred heights and setbacks retain their integrity and give effect to the built form outcomes they are intended to achieve. Mr Wong refers to and relies on the decision of the Tribunal in Athedim (Vic) Pty Ltd v Moonee Valley CC[17] in which the Tribunal held that a discretionary height limit should not be exceeded unless special circumstances warrant a departure.
6. Mr Wong submits that there are no special circumstances that warrant the granting of a permit for a proposal that exceeds DDO7's preferred heights and setbacks to the extent proposed in this application. He submits that the proposed building will not sit comfortably in its context, fails to provide adequate separation between the street wall and upper levels, will be visually intrusive because of its height, width and inadequate setbacks, and will have an excessive and heavy presentation to both Toorak Road and the heritage area to the south.
7. Mr Wong submits that in this Moderate Change Area[18], a more moderated response is warranted.
8. Mr Gillard submits that the Tribunal in the 2010 case substituted its own views about what is an appropriate height and setback for a development of this site. Mr Gillard submits that the DDO7's preferred heights and setbacks have been included in the planning scheme for very good reasons and, unless an applicant can identify factors and circumstances which warrant a greater height and bulk than that specified in the DDO7, approval should not be granted. Mr Gillard submits that in this case the applicant has failed to identify any factors that should move the Tribunal to permit a development which exceeds the DDO7's preferred height and setbacks. Mr Gillard submits that the proposed building is 46.16% higher than the 19 metres stipulated in DDO7, it is higher than the building on the other side of Cunningham Street, and the site is located in a dip in Toorak Road, the bottom of which commences at the intersection with Cunningham Street. In terms of the proposal's impact on the residential area to the south, he submits the building will constitute a large structure that will dominate much of that precinct and will overlook it.
9. Mr Gillard relied on the evidence of Ms von Hartel with respect to these matters.
10. Table 1 to Clause 2.2 of DDO7 expresses the preferred maximum heights, minimum street wall heights and minimum street setbacks for buildings and additions to buildings on land affected by the overlay. DDO7 was introduced into the Stonnington Planning Scheme on an interim basis (expiry on 31 October, 2012) together with Clause 22.19[19] via Amendment C78 to give effect to the Chapel Vision Activity Centre Structure Plan, pending a comprehensive review of that Structure Plan.
11. The preferred maximum heights and setbacks contained in the DDO7 are not mandatory. A permit may be granted to construct a building or construct or carry out works which are not in accordance with any requirement in a schedule to this overlay, unless the schedule specifies otherwise[20]. Decision guidelines at Clause 43.02-5 and at Clause 6.0 of Schedule 7 to the Overlay, identify the matters which must be considered before deciding on an application.
12. The starting point for the consideration of the height and setbacks of a proposed building on a site affected by the overlay is the Table to Clause 2.2 of the DDO7. The discretion to vary the preferred heights and setbacks is appropriately informed by a wide range of factors, including those which are contained within the decision guidelines of the overlay. The factors for consideration are not confined by a need for there to be special circumstances that warrant a variation. The strategic and physical context of the site will be important considerations when deciding whether to exercise the available discretion, as will the design of the building. An applicant for a poorly designed building should not expect to obtain approval for that building, simply because it complies with the preferred heights and setbacks of the DDO7. Similarly, an applicant for a building that varies from the preferred heights and setbacks is entitled to have the application assessed against all relevant matters, rather than having it rejected simply because it does not comply with the preferences expressed in the overlay.
13. With respect to the weight to be given to the DDO7 and Clause 22.19 of the planning scheme, that weight is not diminished by the fact that those provisions have been introduced on an interim basis[21]. In exercising the discretion available under DDO7 however, the fact that the strategic document upon which those provisions of the planning scheme are based (Chapel Vision) is currently subject to comprehensive review[22], and both DDO7 and Clause 22.19 were introduced without being subject to independent review or testing, are relevant considerations[23].
14. Having regard to this application, we are not persuaded that the proposal at a height of eight of 8 storeys (26 metres approx) achieves an acceptable response to the site's physical and strategic context. In arriving at our conclusion we are strongly influenced by two factors.
15. Firstly, the site's interface with the low scale, residential area abutting to the south, represents a constraint to the development of the site and one to which a successful design will need to respond. This constraint is a significant factor in deciding whether the preferred maximum height of DDO7 might be varied, and by how much, as is the slope of the land which rises to the south, increasing the prominence of the buildings along Toorak Road when viewed from within the precinct.
16. In its present form, the extent to which the building varies the preferred maximum height is excessive in terms of its presentation to the residential area to the south. We agree with Ms von Hartel, the objectors and the council, that the combination of the building's height and width, and the treatment proposed to the southern façade, contributes to a visual impact on the residential area that is not consistent with the outcomes contemplated by the planning scheme.
17. Secondly, in terms of the building's presentation to Toorak Road, we agree with the Tribunal findings in the 2010 case that the preferred maximum height for this area, envisages a built form that approximates the existing taller buildings on the south side of Toorak Road that are 5-6 storeys. As we have stated previously, the Tribunal in that case expressed the view that a building that approximates the height of the building to the west (286 Toorak Road) might be appropriate.
18. The proposal is higher than the existing building at 286 Toorak Road[24], a feature which is reinforced by the fact that the review site is downhill of no. 286. A reduction in height to the equivalent of two storeys is required to achieve an acceptable response to the site's physical context, in particular the interface with the residential area to the south, and to the design objectives of the DDO7. At six storeys the building will have a height of 20.63m (AHD 24.28m using the corner of Toorak and Cunningham Streets). This height will still exceed the preferred maximum height of DDO7 by 1.63 m but, for the reasons we have outlined above, that preferred maximum height is not mandatory, and a variation from it of that magnitude is acceptable.
19. We have also concluded that a setback to Toorak Road above the street wall, is required.
20. The Preferred Minimum Street Setbacks in Table 1 of DDO7 establishes a distinct built form outcome incorporating street setbacks above street walls. It was Mr Sheppard's evidence that the design objectives of DDO7 are achieved by the setbacks proposed combined with the varied architectural treatment of the façade. These features are sufficient in Mr Sheppard's evidence to maintain the clarity of the street wall.
21. We disagree. The proposed recessed differentiation above the podium at level 3 is a 1.4m high strip which is not only hardly visible from the opposite footpath, it also does not read strongly even in elevation, partly due to the enclosed balconies above. Above Level 3, the balconies openings are 1.4m by between 2-3.5metres and constitute less than 30% of the façade i.e. the coloured glass enclosure reads as the front façade with the openings providing relief and articulation.
22. While we acknowledge that the DDO7 preferred setback applies throughout the activity centre, and its applicability needs to be determined on each individual site, we are satisfied that the DDO7 does seek to achieve a particular built form outcome which this proposal in its current form does not achieve.
23. A 6.0 m setback which is the preferred minimum specified in the DDO7, is not however required to achieve the relevant objectives. We have concluded that a 3.0 m setback will be sufficient to achieve the desired outcome.
24. It is not necessary for the additional 3.0 m setback to Toorak Road to be repeated along Cunningham Street. The existing setback as proposed serves to enclose entrance to the street, highlighting the change in zoning and function beyond the review site from business to residential to the south.
25. We are cognisant of the fact that the changes we have identified will necessitate additional consequential changes, some of which we are not able to anticipate. We are content however to proceed on the basis that the changes we require are capable of being dealt with by way of permit condition. The consequential changes will need to be resolved between the applicants, their designers and the council.
26. The consequential reconfiguration of the layout of apartments within the reduced building envelope (resulting from our requirement for an increased setback from Toorak road) provides an opportunity to address a number of amenity concerns identified in the evidence.
27. Whilst we consider that the 'studio' style apartments where the single bedrooms has openable walls to a naturally lit living space are acceptable, those with natural light 'funnelled' through a 1 metre wide and between 4-7 metre long aperture are barely so. For example, the 5 of the 7 two bedroom units on the existing scheme for level 1 have this situation in the second bedroom.
28. A redesign of the internal layout should seek to address this issue. One example is by the deletion of the "funnel" to the bedroom of the units 1.11, 2.11, 3.10 and 4.10, and the introduction of openable bedroom walls. A consequence would be an increase in living area.
29. The façade treatment of the proposal utilises rectangular framing devices to define the podium of the building along Toorak Road. Above this level, two tone glazing (gray and blue) wraps around the corners of the building before being interrupted by a contrasting open balcony treatment and then being repeated. This glass skin of the building is punctuated irregularly by opening to balconies or to allow light into the building. A number of units appear to borrow light through the ink blue glazing a matter which we agree with von Hartel, is of concern. However it is a matter which the internal rearrangement of units can address.
30. The design of the southern façade should also be reconsidered. In contrast to the other three it is composed of tinted window glass and textured white balcony balustrade finishes which present to the south as somewhat bland and monolithic. This is façade which will enjoy high exposure for the foreseeable future and consideration should be given to enlivening this façade in a way which respects the low rise residential area to the south.

Does the proposal contribute to unacceptable amenity impacts?

1. With respect to the consideration of amenity impacts, we note that the council's grounds of refusal are confined to matters of visual bulk associated with the height and massing of the building.
2. The objectors express more general amenity concerns in addition to those raised by the council.
3. With respect height and bulk issues, the changes we have required to the height of the building are in part related to our concerns about the proposal's interface with the residential area to the south. The reduction in height to the building, combined with the setbacks and the transition in height to the south, is sufficient to persuade us that an acceptable built form outcome is achieved, especially having regard to the site's location at the interface between a residential and Business 1 Zone.
4. Issues of overlooking and overshadowing were the subject of expert evidence by Mr Biasci and Mr Sheppard, and we accept their evidence on these matters.
5. Any consideration of amenity impacts is inevitably contextual in nature. We therefore endorse the findings of the Tribunal in the 2010 case on this point. The Tribunal said:

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[25].

Have the car parking, traffic management and waste disposal components of the proposal been adequately resolved?

1. The council raises no issues with respect to the provision of car parking[26]. Objectors did however submit that insufficient parking is proposed and in particular, the provision of visitor parking is inadequate.
2. Mr Walsh provided expert evidence on this matter, and in the absence of contrary expert evidence, we accept that evidence. We are satisfied that in this location, having regard to the site's proximity to public transport options, a reduction in the provision of car parking of the magnitude proposed in this application is appropriate[27]. We also note that the policy framework of the planning scheme encourages the provision of car parking to be assessed having regard to the availability of public transport and alternative modes of transport[28].
3. We anticipate that changes we have required by way of permit conditions, will impact on the yield of dwellings within the proposal. This will be likely to have implications for the quantum of car parking required. Parking provision at a rate equivalent to or similar to that proposed in the applicant's substituted plans, would be acceptable.
4. Concerns were raised by objectors about traffic generation and distribution, and in particular with respect to the impact the additional traffic generated by this proposal will have on the safety and efficient functioning of the street network and intersections.
5. The council did not share these concerns.
6. In his evidence Mr Walsh acknowledged that the proposal will contribute to a noticeable change in the operation of the laneway. We agree with his evidence that the widening of the laneway will be sufficient to accommodate the increases in traffic volumes and manoeuvres.
7. With respect to the impact of increased volumes on intersections, particularly Cunningham Street and Toorak Road, Mr Walsh estimates that post development there will be a right turn movement out of Cunningham Street of 10 vehicles and 8 vehicles for the AM and PM peaks respectively. These movements are not significantly greater than that which the Tribunal found to be satisfactory in its assessment of the 2010 application[29]. We agree with his evidence that the traffic impacts associated with this proposal are acceptable.
8. A waste management plan is the appropriate mechanism to resolve operational issues around the storage and collection of waste. A condition requiring a plans to be prepared and approved by the council forms part of the permit. Ms Von Hartel expressed concern about the location of the loading bay and the adequacy of the waste storage facilities. We were advised however that recycling storage facilities will be provided on each level of the building, with no bins stored in the loading bay. These are matters appropriately addressed in the waste management plan. We are satisfied that suitable provision for waste storage and removal can be accommodated.

1. It follows from the above reasons that it is our conclusion that the decision of the responsible authority should be set aside and a permit issued.
2. In deciding the conditions to be included on the permit we have had regard to the "without prejudice" conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from our reasons.

• Construction of a building in a Business 1 Zone, Design and Development Overlay and Land Subject to Inundation Overlay, a reduction in the car parking requirement for use of the site as dwellings as well as shops and restaurants (as of right uses) with associated restaurant and café, use of the land for dwellings, use of land to sell or consume liquor

1. Before the commencement of the development, three (3) copies of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the amended plans substituted by the Victorian Civil and Administrative Tribunal on 11 April 2012, but modified to show:

1. The height of the building reduced to a maximum of 20.63m with allowance for structures associated with plant and equipment above that height to a maximum of 1.5m. 2. The setback to Toorak Road above the minimum street wall height (8 metres) increased to 3.0m.

1. Modifications to the southern façade of the building to provide increased levels of articulation and interest.

1. A schedule of building materials, finishes and colours for all external parts of the building including provision of a coloured sample board with reflectivity of glass and finishes used in the building to be no greater than 20%. 2. Location of all mechanical plant and equipment including, but not limited to, lift overruns, flues, exhausts and air-conditioning units. 3. The dimensions and layout of: 1. bicycle spaces 2. car parking bays 3. ramp gradients and headroom clearances throughout the basement 4. Door from hall into loading bay altered to open inward 5. Bollards provided across lift access at each level 6. Storage areas at the eastern end of the basement to be annotated as being in association with their abutting car spaces

such that they are generally in accordance with the Planning Scheme/Australian Standards

1. A red line outline indicating the area proposed to be licensed for the restaurants.
2. Measures to address Water Sensitive Urban Design, including:

1. A site layout plan showing the location of proposed stormwater treatment measures to achieve compliance with the best practice performance objective set out in the Urban Stormwater Best Practice Environmental Management Guidelines, Victoria Stormwater Committee 1999.

1. A report outlining compliance with the best practice performance objective set out in the Urban Stormwater Best Practice Environmental Management Guidelines, Victoria Stormwater Committee 1999. 2. Design details, such as cross sections, to assess the technical effectiveness of the proposed stormwater treatment measures for measures other than water tanks.

1. Compliance with Melbourne Water requirements as outlined in Conditions 34-46.

1. Any consequential changes required as a result of submitting documents to satisfy conditions 3 and 4.

All to the satisfaction of the Responsible Authority.

1. The use and development must be in accordance with the endorsed plans unless otherwise agreed in writing by the Responsible Authority.
2. There will be no venting of the basement carpark on the eastern boundary of the Land adjacent to the front setback area of the Adjoining Property at the Toorak Road frontage to a height of four (4) metres above natural ground level, Any venting of the basement carpark along the eastern boundary of the Land wil[be in accordance with the relevant Australian Standards.
3. Prior to the commencement of any buildings arid works (including demolition) on the Land approved under the Permit Application, an arborist's report (Arborist's Report) concerning the two trees adjacent to the western boundary of the land at 302 Toorak Road, South Yarra, must be submitted to, and approved in writing by the Responsible Authority. The Arborist's Report is to include all relevant information regarding the species, specifications, health, pruning requirements, and the effect that the development may have on the survival of the trees. The Arborist's Report must be prepared by a suitably qualified professional (Arborist) to the satisfaction of the Responsible Authority.
4. All recommendations in the Arborist's Report concerning the preservation or replacement of the trees, but that do not include any modification or alteration of the building to be developed on the Land, must be undertaken by the Applicant to the satisfaction of the Responsible Authority.
5. Any cutting of the roots or branches of the two trees adjacent to the western boundary of the land at 302 Toorak Road, South Yarra necessitated by the development must be done under the supervision of the Arborist.
6. The trees adjacent to the western boundary of the land at 302 Toorak Road, South Yarra are to be inspected by the Arborist at the completion of the development on the Land. If the Arborist is of the opinion at that time that either of the trees will not survive or are unlikely to survive, the tree(s) must be replaced with a tree(s) of a species and age to be recommended by an arborist at the cost of the Applicant within three (3) months of the completion of the development on the Land.
7. The eastern boundary wall and eastern first floor terrace wall of the development are to be painted the colour 'AFOI Applied Texture Paint Finish - White' as identified the Materials Legend on the East Elevation Plan, TP3.02, Revision B.
8. Concurrent with the endorsement of plans, a Waste Management Plan (similar to the Waste Management Plan prepared by Leigh Design Pty Ltd and dated 7 July 2011) must be submitted to and approved by the Responsible Authority.

When approved, the plan will be endorsed and will then form part of the permit. Waste collection from the development must be in accordance with the plan, to the satisfaction of the Responsible Authority.

1. Concurrent with the endorsement of plans, an Environmentally Sustainable Development Management Plan (ESD Management Plan) must be prepared by a suitably qualified person. The ESD Management Plan must be submitted to and approved by the Responsible Authority. The ESD Management Plan must address the following:

1. Energy Management; 2. Water Conservation and Re-use;

1. Identify relevant statutory obligations, strategic or other documented sustainability targets or performance standards. 2. Document the means by which the appropriate target or performance will be achieved. 3. Identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring. 4. Demonstrate that the design elements, technologies and operational practices that comprise the ESD management plan can be maintained over time.
2. Prior to the commencement of the development, a Parking Management Plan must be submitted to and approved by the Responsible Authority. The Parking Management Plan must include, but not limited to:

1. Allocation of car parking spaces to each use. 2. Detail the signing and line marking of parking spaces.

1. Detail any access controls to the parking area.

When approved, the Parking Management Plan will be endorsed and will then form part of the permit.

1. Prior to the occupation of any building approved under this permit, a report from the author of the Sustainable Design Assessment, approved pursuant to this permit, or similarly qualified person or company, must be submitted to the responsible authority. The report must confirm that all measures specified in the Sustainability Design Assessment have been implemented in accordance with the approved documentation.
2. A report for the legal point of discharge must be obtained from Council and a drainage design for the development must be prepared by a suitably qualified Engineer in accordance with that report prior to a building permit being issued. The drainage must be constructed in accordance with the Engineer's design.
3. The existing levels between the property boundary and the existing ROW (title boundary) must be maintained to the satisfaction of the Responsible Authority.
4. No new services to be trenched/located on Cunningham Street within the Critical Root Zones of the 4 street trees to the satisfaction of the Responsible Authority.
5. If new pavement is proposed for the Cunningham Street frontage, it must be above grade / floating, which will require no need for trenching within the CRZ's of the 4 street trees to the satisfaction of the Responsible Authority.
6. All 4 street trees to have protection fencing prior to works occurring. It must be at least 1.8m high, and envelope all 4 tree stems to the satisfaction of the Responsible Authority.
7. The collection of wastes and recyclables from the premises (other than normal Stonnington City Council collection) must be in accordance with Council's General Local Laws.
8. All walls on or facing the boundaries of the site must be cleaned and finished to the satisfaction of the Responsible Authority.
9. All plant and equipment (including air-conditioning units) shall be located or screened so as not to be visible from any of the surrounding footpaths and adjoining properties (including from above) and shall be baffled so as to minimise the emission of unreasonable noise to the environment in accordance with Section 48A of the Environment Protection Act 1970 to the satisfaction of the Responsible Authority.
10. The loading and unloading of vehicles and the delivery of goods to and from the premises must at all times be conducted entirely from within nearby publicly designated loading bays in a manner that limits interference with other vehicular traffic to the satisfaction of the Responsible Authority. The loading and unloading of vehicles and the delivery of goods to and from the premises must only occur between the hours of 7am and 10pm Mondays to Saturdays and between 9am and 10pm on Sundays or public holidays to the satisfaction of the responsible authority.
11. Prior to the occupation of the building, all screening devices designed to limit overlooking hereby approved must be fixed to a height of 1.7m and have no more than 25% openings to the satisfaction of the Responsible Authority. The screens must be designed and coloured to blend in with the development and maintained thereafter to the satisfaction of the Responsible Authority.
12. Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.
13. All utility services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority by completion of the development.
14. The project must incorporate the Water Sensitive Urban Design initiatives detailed in the endorsed site plan and/or stormwater management report.
15. The existing footpath levels must not be lowered or altered in any way to allow access to the site unless to the satisfaction of the Responsible Authority.
16. Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.
17. A maximum number of 150 seats (for the restaurants) must be provided at all times the use is in operation to the satisfaction of the Responsible Authority.
18. Without the prior written consent of the Responsible Authority, the sale and consumption of liquor shall only occur within the licensed area between the following hours:

1. Sunday: 10 a.m. and 11 p.m. 2. Good Friday & Anzac Day: 12 noon and 11 p.m.

1. On any other day: 7 a.m. and 1 a.m. the following morning except for Good Friday.
2. Bottles and rubbish must not be removed from the hereby approved commercial uses between the hours of 11pm and 7am the following day.
3. Noise emanating from the subject land must not exceed the permissible noise levels when determined in accordance with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N 1, to the satisfaction of the Responsible Authority. Any works required to ensure and maintain the noise levels from the (plant and equipment area and loading bay or specify other as relevant) are in compliance with this policy must be completed prior to the commencement of the use or occupation of the site and maintained thereafter, all to the satisfaction of the Responsible Authority.
4. The provision of music and entertainment on the premises must be in accordance with the State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2.
5. Prior to occupation, access for persons with disabilities must be provided in compliance with the Disability Discrimination Act 1992 and such access must be maintained at all times the building is occupied or in use.

1. No polluted and / or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
2. The five (5) metre entry area to the proposed seven retail tenancies abutting Toorak Road may be constructed at street level as shown on the submitted plan.
3. The proposed ground floor including lobby, substation and all other utility rooms as well as the remaining floor area within all the retail tenancies must be constructed with finished floor levels at a minimum of 5.0 metres to Australian Height Datum (AHD).
4. The entry / exit driveway of the basement car park must incorporate a flood proof apex of a minimum of 5.0 metres to Australian Height Datum.
5. Any proposed vehicle parking areas (not including the basement) must have finished surface levels no lower than 350mm below the applicable flood level.
6. The basement must be setback a minimum of 1.5 metres from any Melbourne Water asset.
7. The temporary ground anchors must not interfere with Melbourne Waters Assets.

Details shall be provided to Melbourne Water within a Work Method Statement showing how protection to the drain during construction will occur.

1. No additional loading must be placed directly on Melbourne Water's drain.
2. Detailed design plans are to be submitted to Melbourne Water for approval prior to the commencement of works. These plans are to include:

1. The exact alignment and invert of the drain relative to the property boundary 2. The location of any ground anchors; and

1. The depth, angle and location of any footings
2. The depth of any footings must be adequate to satisfy the angle of repose relative to the drain as per Melbourne Water's specification.
3. A pre and post CCTV inspection will be required. Please note that the drain was built in the early 1900's and this should be taken into consideration for future submissions.
4. All electrical and plumbing fittings must be to the standards of the Relevant Authority for areas subject to inundation for all services contained within the lower level ground floor.
5. Prior to the commencement of works separate application, direct to Melbourne Water, must be made for any new or modified storm water connection to Melbourne Water's drains or watercourses.

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

1. The development is not started within three years of the date of this permit. 2. The development is not completed within five years of the date of this permit.

1. The use is not commenced within five years of the date of this permit.

1. The use is discontinued for a period of two years or more.

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

[1] The application plans were amended during the processing of the application. The amendments incorporated a revised internal residential layout and minor modifications to the external presentation of the dwellings.

[2] Raywood Nominees Pty Ltd v Stonnington CC [2010] VCAT 1946

[5] Raywood Nominees Pty Ltd v Stonnington CC, opcit, paragraphs 23-26.

[13] Submission of Mr R Gillard, page 17.

[14] The approach to be taken by the Tribunal in exercising the discretion available under the planning scheme is a matter we address subsequently in this decision.

[15] The principles have been applied consistently since the decision of the Tribunal in Amoco Australia Ltd v Berwick CC (1983) 1 PABR 166 which considered this issue specifically.

[16] The Tribunal in the 2010 decision provided a comprehensive summary of the applicable planning scheme policies and provisions. On the basis that all parties acknowledged that there has been no change to the planning scheme subsequent to that decision, we rely on that summary. We do not intend to repeat that summary and we refer to relevant provisions of the planning scheme only where they relate to our findings about this proposal.

[17] [2010] VCAT 109.

[18] Pursuant to Clause 2.1 of DDO7, Moderate Change Areas are 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.

[19] Prahran, South Yarra and Windsor Activity Centre Policy.

[20] Clause 43.02-2. Schedule 7 to the DDO does not specify that a permit may not be granted for buildings and works which are not in accordance with the requirements in the Schedule.

[21] Oxdra Pty Ltd v Stonnington CC (2012) VCAT 312.

[22] Resolution of Council dated 19 March 2012, provided to the Tribunal as part of the Council's submission.

[23] TATU Developments v Stonnington CC [2011] VCAT 931

[24] The proposed building has a parapet height of 29.68m AHD (31.58m AHD to the top of the plant access). The building to the west (286 Toorak Road) has a parapet height of 26.83 m AHD (31.84m AHD to the plant room).

[25] Raywood Nominees Pty Ltd v Stonnington CC, Opcit, paragraph 83.

[26] 114 spaces are proposed within three basement levels.

[27] The Tribunal in the 2010 case concluded that in assessing that proposal the provision of car parking was acceptable. The Tribunal was at least in part influenced in that decision by the site's proximity to public transport and the policy framework's discouragement for the provision of parking in this location.

[29] Raywood Nominees Pty Ltd v Stonnington CC, Opcit, paragraphs 57-59