Southey Living Pty Ltd v Port Phillip CC [2011] VCAT 1589

1. Pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998, Sarah Ball, Michele Stockley, Penelope Mitchell, William Mitchell, Paul Anglin, Nicole Byrne, Martin Harvey, Sonya Kenton, Les Kunz, J Lee, Maureen Stewart, Samantha Lane and Sally Rossiter are joined as parties to the proceeding.
2. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Act 1998, the permit application is amended to substitute for the permit application plans the following plans filed with the Tribunal:

TP01 Site analysis & description; TP02 B Design Response; TP03 B Basement Plan; TP04 D Ground Floor Plan; TP05 D 1st Floor Plan; TP06 D 2nd Floor Plan; TP08 D Roof Plan; TP09 C Elevations - A; TP10 D Elevations - B; TP11 A Street Elevation; TP12 E Shadow Diagram 9am; TP13 Shadow Diagram 12pm; TP14 E Shadow Diagram 3pm;

1. The decision of the Responsible Authority in relation to permit application no. 1110/2010 is set aside.
2. A permit is granted in relation to land at 50-52 Southey Street, Elwood. The permit will allow the construction of a three-storey building (plus basement) accommodating dwellings and associated car parking in accordance with the endorsed plans.
3. The permit is subject to the conditions contained in the Appendix to these reasons.

Mr G Peake of Counsel, by direct brief. Evidence was called from:

Mr P Borelli, Town Planner of SJB Planning Pty Ltd.

Mr J Patrick, Landscape Architect of John Patrick Pty Ltd.

Mr S Howe, Horticulturalist, Landscape Architect and Arborist of John Patrick Pty Ltd.

For C Serpell, A Light, F Woodhart, J Carden, M Stewart, K O'Reilly, J Cocks, J Baillie, J Moro, R & A Walker, S Moro, A Georgiou, B Gardiner, L Levy, D Donald, G Levy, P & L Becker, P & W Mitchell, J Warner, K Cross, K & C Adams, P Anglin, N Byrne, M Harvey, S Kenton, S Lane and S Rossiter.

Construction of a three-storey building (plus basement) accommodating 22 dwellings and associated car parking.

Application under Section 79 of the Planning and Environment Act 1987.

Cl. 32.01-4 (construction of two or more dwellings on a lot).

Cl. 10, 11, 11.04, 15, 15.01, 15.02, 16, 21, 32.01, 55 and 65.

The review site is located on the north-eastern side of Southey Street. It comprises of two lots, each occupied by a single storey detached dwelling, and has a total site area of 1160 square metres. To the north-west is a three-storey block of flats. To the north-east (rear) are two properties with frontage to Tennyson Street. Each of these properties supports a single dwelling. To the south-east is a single storey dwelling with a two-storey block of flats at the rear. This property is within a site-specific Heritage Overlay. On the opposite side of Southey Street are two, three-storey blocks of flats, a two-storey dwelling and a single-storey dwelling.

1. In November 2010, Southey Living Pty Ltd made an application to the Port Phillip City Council for a permit to construct a four-storey building (plus basement) accommodating 27 dwellings and associated car parking on the review site. The Council failed to decide the application within the prescribed time and the Applicant has applied to the Tribunal for a review of the Council's failure to grant a permit.
2. The substituted plans include a number of changes from those lodged with the permit application. The principal modifications are the deletion of the top (fourth) level, a reduction in the number of dwellings from 27 to 22, and the deletion of the car stackers originally proposed within the basement.
3. The key issues for determination in this matter are:
   • Is the proposed development consistent with the relevant policies of the Port Phillip Planning Scheme?
   • Will the development have an unreasonable impact on the amenity of the adjoining and nearby properties?
   • Is adequate car parking provided on the land, and will the traffic impacts of the proposal be acceptable?
4. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Port Phillip Planning Scheme, I have decided to set aside the Council's decision. My reasons follow.

1. Amendment C62 to the Port Phillip Planning Scheme was gazetted on 27 June 2011. It amended the Local Planning Policy Framework by introducing a new Municipal Strategic Statement (MSS) and modifying the suite of local policies.
2. The new MSS provides for a targeted approach to the provision of housing within the municipality[2]. Consistent with contemporary planning practice, it seeks to direct the greater proportion of new housing to strategic locations, such as activity centres, to take advantage of the facilities and services in these areas, while tempering the rate of change within established residential neighbourhoods in order to protect their character. It does this by providing for five levels of 'growth' across the City.
3. The MSS has an objective of providing significant opportunities for new residential development in designated locations which have the capacity for change, and which offer highest accessibility to public transport, shops and social infrastructure. To meet this objective, the majority of new residential development is to be directed to preferred housing growth areas to achieve 'substantial' and 'moderate' residential growth.
4. Substantial residential growth is to occur within strategic sites and precincts located within or in close proximity to a Major Activity Centre. New housing in these areas will be generally in the form of higher density development. Moderate residential growth is envisaged within the established retail/commercial strips of the Major Activity Centres, the Glen Huntly Road/Ormond Neighbourhood Activity Centre and the St Kilda Road Business 2 Zone.
5. Outside of these locations, the objective is to ensure that new residential development does not compromise the heritage, neighbourhood character and amenity values of established residential areas. The strategy is to limit residential development in these areas to achieve:
   • Incremental residential growth on sites with frontage to a Main Road adjacent to the fixed rail Principal Public Transport Network; within areas that are proximate (400m distance) to a Major Activity Centre that have been identified in an approved Structure Plan or Urban Design Framework as having capacity for development based on a diverse neighbourhood character; and on sites fronting Ormond Road and Glen Huntly Road, proximate to Elwood Junction and Elwood Village activity centres.
   • Limited residential growth in remaining residential areas.
   • Minimal residential growth in areas where an existing heritage overlay applies.
6. Within the established residential areas, a strategy is to ensure that the form and density of new development is determined by neighbourhood character considerations and not urban consolidation objectives.
7. The version of Amendment C62 that was adopted by the Council included a 'Housing Opportunities Framework Plan' which identified the preferred housing growth areas across the municipality. That plan showed the review site as being within a Limited Residential Growth Area, with the nature of change envisaged for these areas being described in the following terms:

Limited residential growth in remaining residential areas (outside of a Heritage Overlay), being locations which have a consistent neighbourhood character, or areas which do not offer proximity to a major activity centre or the fixed rail PPTN[3]. New medium density housing will not be encouraged within these areas. All new development shall respect the prevailing neighbourhood character.

1. This 'Housing Opportunities Framework Plan' was deleted from the gazetted version of the Amendment and does not, therefore, form part of the Planning Scheme. The Council's clear position is that, notwithstanding this, the site is within the Limited Residential Growth Area.
2. The Applicant questioned whether the site was appropriately located within this category of growth area, given it is not within an area of a consistent neighbourhood character and (in the Applicant's submission) it is not too distant from a Major Activity Centre and the PPTN. The Applicant also drew attention to the definition of this category of Growth Area which includes the distance from either a Major or Neighbourhood Activity Centre as one of the criteria, stating that the review site is proximate to the Tennyson Street Neighbourhood Activity Centre.
3. I accept the Council's submission. In my view, in the absence of the framework plan, it can be established by a process of elimination that the site is included in the Limited Residential Growth Area.
4. It is not within or close to a Major Activity Centre (therefore it is not a substantial growth area); it is not within the commercial areas identified for moderate residential growth; it is not on a main road adjacent to the PPTN nor does it front Ormond Road or Glen Huntly Road (therefore not in an incremental growth area); and it is not within a Heritage Overlay (therefore not in a minimal growth area).
5. The strategic context of the review site is one where medium density housing is not encouraged, and where any development must respect the prevailing neighbourhood character of the area.
6. Clause 21.05 details the objectives and strategies for the envisaged built form outcomes within the City. The relevant strategies may be summarised as follows:
   • The distinctive low rise scale of the municipality's residential areas is to be protected.
   • The scale, massing and bulk of new development is to respect the scale and form of nearby buildings in areas where the existing built form character is to be retained.
   • In areas with a diverse building scale, the height of any new residential development is to be generally no more than 1 storey above the height of the lower adjoining buildings, with a maximum height of 3 storeys.
   • New development at increased densities is to provide a transition in scale to any adjoining lower-rise development.
   • New development should not unreasonably affect the amenity of adjoining properties by way of overshadowing, privacy or visual bulk.
7. The strategies relating to the City's neighbourhoods are detailed at Clause 21.06. Again, the framework plans that formed part of the adopted version of Amendment C62 were deleted from the gazetted version. This has effectively made it impossible to determine which Neighbourhood the review site is located in.
8. It is apparent from the Amendment documentation that it was intended to locate the site in the Elwood & Rippon Lea Neighbourhood. It is not clear whether this intention was carried through in the gazetted version. As a consequence, it is impossible to ascertain which of the policies at Clause 21.06 apply to development on this site or, indeed, to any other site in the municipality.
9. I was advised that the name of the suburb does not necessarily correlate with the name of the neighbourhood. Accordingly, simply because the review site is within the suburb of Elwood does not indicate with any degree of certainty that it is within the Elwood & Rippon Lea Neighbourhood under Clause 21.06.
10. The Council maintained that the site is within the Elwood & Rippon Lea Neighbourhood; the Applicant's position is that it is in the St Kilda Neighbourhood. The respective positions are based on what appeared in the Planning Scheme prior to the gazettal of Amendment C62. The key differences in the vision for these neighbourhoods may be summarised as:
    • In Elwood & Rippon Lea Neighbourhood, the suburban character that comprises large front and rear setbacks, established gardens and low rise building form is to be maintained. The retention of large dwellings on single dwelling lots is encouraged. Building heights of 1-2 storey for single residences and 2-3 storeys for flats are nominated.
    • In St Kilda Neighbourhood, the established residential areas are to retain their unique heritage and character and generally low rise form. Development is encouraged to respond to the diverse architectural styles and forms (including single and multi dwelling developments) that date from the last two centuries up to the present.
11. In the absence of a plan in the Planning Scheme that identifies the neighbourhood boundaries, I am unable to determine which of the submissions is the correct one. Indeed, it is my observation that the immediate locality displays characteristics of both Neighbourhoods. Ultimately, both the Council and the Applicant considered that I am best informed on the issues addressed in Clause 21.06 by undertaking my own observations of the site's context 'on the ground'. I accept that, in the circumstances, this is the only practical way forward. I would encourage the Council to give consideration to initiating a further planning scheme amendment to provide clarity in the application of Clause 21.06 - specifically, a means by which it can clearly be determined within which neighbourhood a site is located.

Is the proposed development consistent with the relevant policies of the Port Phillip Planning Scheme?

1. The parties are in general agreement that the neighbourhood does not have a consistent character and that the site is suitable for redevelopment for some form of medium density housing, even in an apartment format, as proposed here. The dispute lies in the scale and intensity of this proposal. Those opposing the grant of a permit submit that the development is too large and that it is not consistent with the site's strategic location within a Limited Residential Growth Area. Conversely, the Applicant's submission is that the development is an appropriate response to its context, which is comprised of both single detached dwellings and multi level blocks of flats.
2. I observe that, according to Clause 21.04, medium density housing is not encouraged in this location. I also observe that this strategy is related to the objective of ensuring new development does not compromise the neighbourhood character and amenity values of established residential areas. It is not a strategy that is aimed at achieving a desired settlement pattern (for example, the achievement of higher densities in locations that are well served by public transport and other services and facilities). If it were, then the related objective would include some reference to such an outcome. It does not.
3. On this basis, it appears to me that the principal considerations in determining whether a medium density development should be permitted on this site are those related to neighbourhood character and amenity impacts.
4. Having inspected the site and surrounds, it is evident that the neighbourhood does not display a consistent character. Although there are many examples of the original dwelling stock in the form of detached houses, the built form of the area has undergone a significant evolution over the latter part of the last century. This evolution has manifested in the presence of a number of two and three-storey blocks of flats. Not only are these developments present in the wider neighbourhood, they are proximate to the review site, with notable examples being the three-storey flats next door at No. 48 and those flats on the opposite side of Southey Street at Nos 39, 45 and 47. Further similar developments in the vicinity of the review site are at 40, 44, 53, 57 and 59 Southey Street. Within this context, I accept that a multi-level apartment style building can be developed on the site and represent an outcome that is consistent with the neighbourhood character.
5. Based on the submissions, it appears uncontroversial that the site can support a two-storey development[4]. The Council submits that, if a third above ground level is to be permitted, then it should have the appearance of a recessive element. The residents' position differs from this. They contend that the development should be restricted to two-storeys. This position is based on the statement in Clause 21.05 of the MSS that the height of any new development should generally be no more than one storey above the height of the lower adjoining buildings. As the neighbouring dwelling at No. 54 is single storey, it is argued that development on the review site should be restricted to two-storeys in height.
6. The Applicant submits that the development has been designed to provide a graduation in height from the three-storey flats to the north-west down to the single storey dwelling on the other side. In doing so, the Applicant referred to the two-storey height of that part of the building that is closest to the common boundary with No. 54. That element has a width of some 2.4 metres and is set back a minimum of 16 metres from the site's frontage.
7. I am not persuaded that this small element, at this setback, will be effective in portraying any appreciable sense of graduation down to the height of the neighbouring dwelling. The development will quite obviously appear as a three-storey building adjacent to a single storey dwelling. The question then becomes, is this an acceptable outcome within this neighbourhood?
8. The juxtaposition of multi level flats with detached dwellings is a characteristic of this neighbourhood and, moreover, is one that is readily apparent within Southey Street itself. While the degree to which this has been executed with (or without) sensitivity is clearly open to debate, it nonetheless remains that this is a defining characteristic of the area's built form composition. In many instances, the transition from a single storey scale to two or more storeys occurs over a relatively small distance, due to narrow side setbacks, and represents an abrupt change in height, rather than one which is graduated. This is an outcome of both the separation between the neighbouring buildings themselves and also of the design of the taller development - often presenting sheer, unarticulated walls.
9. In the circumstances of this proposal, the three-storey element, as it is viewed in the streetscape, is separated from the dwelling at No. 54 by a distance of approximately 11 metres. When measured on an angle that follows the alignment of the frontage, this distance increases to 15 metres. In my view, this mitigates against the abrupt change in height that is so evident in many other instances, and is a factor that weighs in favour of the design response.
10. I do, however, share some of the concerns expressed during the hearing regarding the presentation of the building on the approach from the south-east. The decision to provide a staggered profile in the form of two building modules that are offset from each other is an appropriate response to the angled alignment of the front boundary. However, it results in two highly exposed wall planes to the south-east. This, of itself, is not unacceptable, but it is important that these walls are designed and finished in a manner that acknowledges their high degree of visibility.
11. Between the second and third days of the hearing, the Applicant circulated photomontages that show the addition of some visual interest to one of these walls. I provided the parties with the opportunity to comment on these photomontages and agreed to receive them, while not formally including them in the set of plans that form the basis of this Application. I consider that the exposed walls would benefit from some additional detailing to enhance their appearance. In particular, the solid sections of the south-east and south-west walls of Dwellings 1, 9 and 17 should be treated in a way that uses smaller elements to break down their visual prominence. While I will not require any specific treatment, such as a version of that shown in the modified photomontages, I consider that this is a matter best resolved between the Council and the Applicant, where the process will have the benefit of the input of both the Architect and Council's Urban Designer.
12. Overall, I am persuaded that the design response proposed here, being a three-storey apartment style building, will represent an acceptable outcome within the context of a neighbourhood that is strongly characterised by the juxtaposition of multi level blocks of flats with single storey dwellings. It will not appear as an incongruent or jarring element in the Southey Street streetscape, and will sit comfortably within the broader built form composition of this diverse neighbourhood.
13. The proposal will also incorporate a far greater degree of landscaping than is apparent in the majority of the existing flat developments. Importantly, the landscaping extends along the side and rear boundaries of the site, and is not confined to the front setback area. With the exception of a partial boundary abuttal adjacent to the proposed driveway ramp, the basement will be set back from all property boundaries to allow for in-ground planting. There is minimum reliance on above ground planters. While the landscaping would not be comparable to what could be achieved on the sites as they presently exist, this is not the relevant test. What needs to be demonstrated is that adequate landscaping opportunities are provided for a medium density development of this style. Based on the Applicant's evidence, I am persuaded that this is the case. Understandably, the planting will take some time to mature. However, when it does, it will soften the appearance of the building and create a landscape setting that not only enhances the amenity for the development's occupants but also enhances the streetscape and the outlook of the adjoining properties.

Will the development have an unreasonable impact on the amenity of the adjoining and nearby properties?

1. Having inspected all adjoining sites, I am persuaded that the only property that will be unacceptably impacted is that at 39 Tennyson Street, to the rear of the subject land. The development extends to within 1.7 metres of the common boundary. This occurs at the first floor level, and will present as a dominant and imposing built form when viewed from the rear yard of this property. This property is currently substantially impacted upon by the existing three-storey block of flats at No. 37 Tennyson Street. The flats not only present visual bulk to the rear yard area of No. 39, but also allow for excessive overlooking. The development will further erode this property's already compromised level of amenity.
2. Greater setbacks from No. 39 Tennyson Street are required. I will require that the first floor level be set back a minimum of 5.0 metres from this boundary to reduce the visual impact of the built form and avoid the creation of an unreasonable sense of enclosure for this adjoining rear yard.
3. I am less concerned about the effect on the rear open space area of 41 Tennyson Street, due to the existence of the substantial Moreton Bay Fig adjacent to the boundary with the review site. This tree provides a high level of screening and consequently protects this property from any visual bulk or other impacts. However, to reduce any potential conflict between the development and the tree, given its canopy overhangs the review site, I will require that the 5.0 metre setback is also provided in respect of Dwelling 15.
4. The development will largely present to the driveway and covered verandah area of the adjoining property to the south-east. Secluded private open space areas are provided to the rear and south-eastern side of the dwelling, and will not be directly impacted by the development. The paved area adjacent to the review site is not developed for open space purposes and certainly has the appearance of a driveway. The proposed setbacks, measured to the wall face, which are compliant with Clause 55.04-1 (Standard B17) are sufficient in this instance to ensure that the amenity impacts of the built form on this land are within acceptable limits. Had this area been secluded private open space, I may have formed a different view. I will, however, require the balcony of Dwelling 13 to be set back in line with the remainder of the wall to reduce its visual impact, given it is positioned directly opposite the entry of the neighbouring dwelling.
5. The development's setbacks from the north-west do not comply with Standard B17. The Applicant submitted this is acceptable in this instance as the interface is with a service yard of the adjoining flats and the only affected windows are those of kitchens and bathrooms. I understand from the residents' submissions, however, that some of the flats have been modified to create a combined living/kitchen area, and that some of the windows are therefore to an enlarged living space. While it is potentially arguable that the proposed siting may not necessarily result in unreasonable detriment to the adjoining flats, the objective of Clause 55.04-1 also refers to the need for setbacks to respect the existing or preferred neighbourhood character. The reduced setbacks add to the overall 'intensity' of the development and I can see no reason why they should not comply with the relevant Standard. It will assist in achieving a more respectful siting than that displayed by the existing flat developments. It will also reduce the impact on any of the neighbouring windows. I will include a requirement that the development (including the balconies) be set back from the common boundary with No. 48 in accordance with Standard B17.
6. The overshadowing impacts of the development are within the parameters of Standard B21 at Clause 55.04-5. The adjoining properties will not be unreasonably overshadowed. The equinox shadow will not extend to affect the properties on the opposite side of Southey Street.
7. Overlooking has been, or can be, addressed by the provision of appropriate screening to balconies and upper level habitable room windows. I will include a condition to require the provision of screening in accordance with Standard B22 at Clause 55.04-6 to limit any views of neighbouring secluded private open space areas and habitable room windows to within acceptable parameters.
8. Although submissions expressed concerns regarding the potential to overlook dwellings on the opposite side of Southey Street, the separation between the review site and these properties is well in excess of the 9.0 metre distance specified in Standard B22. Provision of screening to address this particular concern is, therefore, not warranted.
9. I consider that, subject to the provision of an increased setback of the first floor from the north-east boundary, the development should not have an unacceptable impact on the amenity of the surrounding land.

Is adequate car parking provided on the land and will the traffic impacts of the proposal be acceptable?

1. The basement is to accommodate 22 resident car spaces and 2 visitor spaces. This provision represents a shortfall of 2 visitor spaces when assessed against Clause 55.03-11 (Standard B16). The Council's Traffic Engineers are satisfied that there is adequate capacity in the available on-street parking to accommodate this shortfall. The residents consider that inadequate car parking is provided within the development. Consistent with the view of the Council's Engineers, the Applicant's evidence is that the deficiency in visitor parking can be satisfied by the publicly available parking in the surrounding street network, even taking into account the loss of existing kerbside spaces arising from the construction of the crossover.
2. On-street car parking is an apparent characteristic of this neighbourhood, and the extent of demand is evidenced by the fact that it is in the form of 60º angle parking, rather than the more conventional parallel parking, in order to optimise the parking capacity of Southey Street. Given this, the evidence that the demand for two visitor spaces can be accommodated on-street, and the support of the Council's Traffic Engineers, I am prepared to allow the shortfall of visitor car parking in this instance.
3. As the requirements of Standard B16 are met, I am satisfied that the provision of one car space per dwelling will satisfactorily accommodate the demands of the development's occupants.
4. There are some issues surrounding the layout of the basement. These relate to the widening of selected car spaces, and the provision of a stop/go signal to regulate vehicle movement within the basement when the ramp is in use. These matters can be addressed by conditions.
5. Although concerns regarding the traffic impacts were raised by the residents, I accept the Applicant's evidence that the additional traffic (with a maximum of 9 trips in each of the peak hours) can be accommodated by the surrounding street network.
6. I see no car parking or traffic related issues that would warrant refusal of this Application.

Will the development have an adverse impact on the Moreton Bay Fig tree on the adjoining property at 41 Tennyson Street?

1. There is a large Moreton Bay Fig tree on the adjoining property at 41 Tennyson Street which is located adjacent to the common boundary with the review site. This is a significant specimen and it is important that the proposed development does not compromise the health and stability of this tree.
2. I was advised that the development has been designed to take this tree into account. According to the evidence, while the relevant Australian Standard AS4970-2009[5] would nominate a 15 metre Tree Protection Zone, root exploration investigations established that excavation within 7 metres from the western face of the tree would not have a detrimental impact on the health and long term amenity of the tree. No significant roots were discovered within this area. What was found were scattered fine roots less than 25mm in diameter. The basement will not intrude into this Tree Protection Zone.
3. Exploratory holes were also dug at the proposed locations for the piers of the above ground levels. No large roots were found within these locations. The evidence is that these works would not have a detrimental impact on the trees, provided the beams within piers are located above grade.
4. The evidence was that, provided the Tree Management Plan attached to the written statement of evidence is adhered to, the development should not have a detrimental effect on the Moreton Bay Fig. The Tree Management Plan details measures that are to be implemented during the demolition, construction and post-construction phases of the development.
5. No evidence to contradict that called by the Applicant was presented.
6. Based on what has been presented, I am persuaded that the measures detailed in the Applicant's evidence should ensure that this is the case. I will, however, include a condition requiring the preparation and implementation of a Tree Management Plan that is to the Council's satisfaction. This will allow the opportunity for Council officers to thoroughly evaluate the proposed measures and ensure that their desired outcomes are achieved.

1. The residents expressed concerns regarding the proposed waste collection arrangements. I consider that this is an issue that can be adequately addressed by a permit condition that requires a Waste Management Plan to be prepared and implemented to the Council's satisfaction. This will address not only the number and storage of bins on the land, but also the nature and frequency of collection. This is a common arrangement for apartment style developments such as this.
2. The basement will have a floor level of 2.45 metres to the Australian Height Datum. The Council's submissions raised no concerns regarding any potential flooding impacts and the Council is content to have this issue addressed by a suitable permit condition. The Applicant tabled written advice from Melbourne Water which confirms that the land is not subject to flooding from Melbourne Water's drainage system, based on a flood level that has a probability of occurrence of 1% in any one year. Melbourne Water has no objection to the development proposal and does not seek to impose any conditions on the permit.

1. For these reasons I have determined that a permit should be granted for this development. I will therefore set aside the decision of the Responsible Authority.

The construction of a three-storey building (plus basement) accommodating dwellings and associated car parking in accordance with the endorsed plans.

Before the development starts, two copies of amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions. The plans must be generally in accordance with the plans identified as TP03 B Basement Plan; TP04 D Ground Floor Plan; TP05 D 1st Floor Plan; TP06 D 2nd Floor Plan; TP08 D Roof Plan; TP09 C Elevations - A; and TP10 D Elevations - B prepared by Terry Harper Architects, dated 26.10.10 but modified to show:

1. The building (including the balconies) set back from the north-western boundary (being the common boundary with No. 48 Southey Street) in accordance with Clause 55.04-1 (Standard B17) of the Port Phillip Planning Scheme.
2. A minimum area of 8 square metres and a minimum dimension of 1.6 metres for all balconies.

1. The first floor (including the balconies) set back a minimum of 5.0 metres from the north-eastern (rear) boundary. This must be achieved by reducing the floor area and must not result in the reduction of any setbacks from the boundaries.

1. The centralised entry point and associated corridors widened to at least 2.2m, and the entry itself better defined, to provide a sense of address through materials, finishes, colours, lighting and signage.
2. The solid sections of the south-west and south-east walls of Dwellings 1, 9 and 17 treated in a way that uses smaller elements to break down their visual prominence.
3. A comprehensive schedule of construction materials, external finishes and colours, including colour samples.
4. The provision of a stop line 'holding area' in front of car space 1 in the basement to provide sufficient turning area to vehicles entering the basement car park, in line with the swept path plans contained within the Ratio Traffic Engineering Report dated May 2011.
5. The provision of a stop-go signal system/point at the access point to the car park to co-ordinate one lane vehicular access to/from the car park.
6. The location of the 10,000 litre water tank on the relevant floorplan.
7. The location of all external plant equipment and domestic services (including air conditioning, heating units, hotwater systems, etc.) on the relevant elevation plans and roof plant. Such equipment must be screened with materials and colours to blend in with the building.
8. Removal of door located directly east of the lift core and relocation of car spaces 2 and 3 and the structural column 1.0 metre to the west.

1. Car space no. 3 widened from 2.6 metres to 2.9 metres.

1. A minimum height clearance of 2.2 metres for the basement ramp, in accordance with the relevant Australian Standard.
2. The storage unit adjacent to car space no. 22 reduced to 850mm and the width of car space no. 10 increased to 2.9 metres and nominated as 'reverse only'.
3. The car space in south-east corner nominated as 'reverse only' and this visitor car space to be relocated to one of the other car spaces.
4. The balcony of Dwelling 13 set back a minimum of 2.1 metres from the south-eastern boundary (being the common boundary with No. 54 Southey Street). The balcony must have a minimum dimension of 1.6 metres and a minimum area of 8 square metres.
5. The provision of screening to all balconies and habitable room windows that allow views of secluded private open space areas and/or habitable room windows within 9.0 metres. The screening must be in accordance with Clause 55.04-6 (Standard B22) of the Port Phillip Planning Scheme.
6. Any modifications required by the approved Sustainable Design Statement (refer to Condition No. 3 of this Permit).

The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

Before the development starts a Sustainable Design Statement that outlines proposed sustainable design initiatives must be submitted to, and approved in writing by, the Responsible Authority. The statement must provide energy ratings (eg Firstrate, Accurate or BERS Professional etc.) for the proposed development and all dwellings should have an energy rating of 5 stars or greater. Upon approval, the statement will be endorsed as part of this Permit and the development must incorporate the sustainable design initiatives listed, to the satisfaction of the Responsible Authority.

Before the development starts, a detailed landscape plan 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. Landscaping in accordance with the approved landscape plan and schedule must be completed before the development is occupied and must be maintained to the satisfaction of the Responsible Authority.

Before the development starts, a Construction Management Plan must be submitted to, and approved in writing by, the Responsible Authority. The Construction Management Plan must include a works program and must have the objective of minimising the impact of construction works on the adjoining and nearby residential properties to the satisfaction of the Responsible Authority. The plan must specify the means of reducing the construction impact (at the cost of the applicant) of dust and noise on the nearby properties, and must provide that hours of work be in accordance with any relevant Local Law. The development must be undertaken in accordance with the approved Construction Management Plan to the satisfaction of the Responsible Authority.

Before the development starts, Waste Management Plan based on the draft "Best Practice Guidelines for Kerbside Recycling at Multi-Occupancy Residential Developments (Sustainability Victoria June 2006) and prepared by a Waste Management Engineer or Waste Management Planner must be submitted to, and approved in writing by the Responsible Authority. Once approved, the Waste Management Plan will be endorsed as part of this permit. The Waste Management Plan must include, but is not limited to, the following:

• The estimated garbage and recycling generation volumes for the whole development.
• The garbage and recycling equipment to be used and the collection service requirements, including the frequency of collection.
• The location of, proximity, screening of and space allocated both to the garbage and recycling storage areas and collection points.
• The path of access for both users and collection vehicles.
• How noise, odour and litter will be managed and minimised.
• Facilities for washing bins and storage areas.
• Who is responsible for each stage of the waste management process.
• How tenants and residents will be regularly informed of the waste management arrangements.

The approved Waste Management Plan must be implemented to the satisfaction of the Responsible Authority.

Before the development starts, a Tree Management Plan for the Moreton Bay Fig Tree at No. 41 Tennyson Street Elwood must be submitted to, and approved in writing by, the Responsible Authority. The Tree Management Plan must include, but is not limited to, measures to ensure that the development does not cause any damage to the Moreton Bay Fig. The development must be undertaken in accordance with the recommendations and requirements of the approved Tree Management Plan to the satisfaction of the Responsible Authority. The tree protection measures detailed in the approved Tree Management Plan, as well as any canopy and/or root pruning of the Moreton Bay Fig must be carried out by a suitably qualified arborist, to the satisfaction of the Responsible Authority.

All external materials, finishes and colours as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

All piping and ducting (excluding down pipes, guttering and rainwater heads) must be concealed to the satisfaction of the Responsible Authority.

Any subsequent installation of plant equipment or domestic services not identified on the endorsed plans that would be visible from the street must be located and visually screened to the satisfaction of the Responsible Authority.

Provision must be made for the drainage of the site including landscaped and pavement areas to the satisfaction of the Responsible Authority.

The development must not be occupied until the area(s) set aside for the parking of vehicles and bicycles and access lanes as shown on the endorsed plans are:

1. Constructed;
2. Properly formed to such levels that may be used in accordance with the plans;

1. Surfaced with an all weather surface or seal coat (as appropriate);

1. Drained and maintained;
2. Line marked to indicate each car space, bicycle space, loading bay and/or access lane; and
3. Clearly marked to show the direction of traffic along access land and driveways.

All to the satisfaction of the Responsible Authority.

Resident and Visitor car and bicycle parking and access lanes must be kept available for those purposes at all times and must not be used for any other purpose such as storage.

Vehicle crossings must be constructed in accordance with Council's current Vehicle Crossing Guidelines and standard drawings to the satisfaction of the Responsible Authority. All redundant crossings must be removed and the footpath, naturestrip, kerb and road reinstated to the satisfaction of the Responsible Authority at a cost to the owner of the development site(s). (Refer also to Condition No. 15 of this Permit).

The Owner of the development site(s) must do the following things to the satisfaction of the Responsible Authority:

1. Pay the costs of all alterations/reinstatement of Council and Public Authority assets necessary and required by such Authorities for the development.
2. Obtain the prior written approval of the Council or other relevant Authority for such alterations/reinstatement.

1. Comply with conditions (if any) required by the Council or other relevant Authorities in respect of alterations/reinstatement.

The car parking allocation for this development must be not less than one car space per dwelling.

The privacy screening devices shown on the endorsed plans must be installed before the occupation of the dwelling unit.

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

1. The development is not started within two (2) years of the date of this permit.
2. The development is not completed within four (4) years of the date of this permit.

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] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[4] Although I acknowledge that concerns were expressed regarding the length of the building and the extent to which it projects into what may be referred to as the 'rear yard realm'.

[5] Protection of Trees on Development Sites