1. In application P1256/2018 the decision of the responsible authority is set aside.

1. In planning permit application 5/2017/523/1 a permit is granted and directed to be issued for the land at 695-707 Hawthorn Road, Brighton East in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:
   • Use for a Retirement village, buildings and works for a Retirement village, and creation or alteration of access to Hawthorn Road

Mr Nicholas Tweedie SC and Ms Jane Sharp of Counsel, instructed by Norton Rose Fulbright Australia Lawyers

• Ms Charmaine Dunstan, traffic engineer, Traffix Group Pty Ltd
• Mr Mark Sheppard, urban designer, David Lock Associates (Australia) Pty Ltd
• Ms Catherine Wells, aged care industry consultant, O'Hara Wells Pty Ltd
• Mr Tim Vernon, landscape architect, CDA Design Group Pty Ltd
• Mr David Crowder, town planner, Ratio Consultants Pty Ltd

At the Tribunal's request, Ms Sophie Hutchinson, environmental scientist, ADP Consulting Pty Ltd, attended the hearing on 16 November 2018 and answered some questions from the Tribunal from the bar table about the Sustainability Management Plan prepared on behalf of Stockland Development Pty Ltd

Mr Peter Barber, town planner, Urban Edge Consultants & (for part of 16 November 2018) Ms Sharon Shardey

Application under section 77 of the Planning and Environment Act 1987 - to review the refusal to grant a permit.

Neighbourhood Residential Zone Schedule 3 - Minimal residential growth area (NRZ3)

Design & Development Overlay Schedule 3 - Building height control for non-residential buildings in the inland minimal residential growth area (DDO3)

Development Contributions Overlay Schedule 1 - Bayside drainage development contributions plan (DCPO1)

The land adjoins land in a Road Zone Category 1 (Hawthorn Road) (RDZ1)

Clause 32.09-2 (use of land in NRZ for a Retirement village)

Clause 32.09-9 (buildings and works for a Retirement village on land in NRZ)

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

Clauses 10, 11, 15, 16, 21.02, 21.03, 21.06, 22.05, 22.06, 22.07, 32.09, 43.02, 44.05, 52.29 & 65

The land is on the east side of Hawthorn Road, extending between the intersections of Cheeseman Avenue (to the north) and Union Street (to the south). It is irregular in shape, with a frontage of about 111 metres, a depth along Cheeseman Avenue of about 87 metres, and a depth along Union Street of about 142 metres. It has an area of 16,880 square metres. The Oak Grange retirement village occupies the land, comprising 110 single or double-storey living units and communal facilities. It was constructed in about 1985.

On 13 November 2018, the Tribunal inspected the dwellings at 3, 7 & 11 Mackie Grove and at 2 & 4 Cheeseman Avenue accompanied by representatives of the parties. The Tribunal then also inspected the surrounds of the land and the wider neighbourhood unaccompanied by the parties.

1. Stockland Development Pty Ltd (in these reasons, Stockland) owns a retirement village known as Oak Grange in Hawthorn Road, Brighton East. It was constructed in about 1985 and comprises 110 single-storey and double-storey living units and communal facilities. It occupies an uncommonly large site of 16,880 square metres (the subject land).
2. Stockland wants to demolish Oak Grange and build a new retirement village on the subject land with modern facilities. It applied to the Bayside City Council for a permit under the Bayside Planning Scheme (the scheme). The Council decided to refuse to grant a permit. Its grounds related to neighbourhood character, built form design, traffic and others. Stockland has now applied to the Tribunal to review the Council's decision. Many nearby residents, who objected to the grant of a permit, are respondents.
3. The key issues in this proceeding are as follows:
   • (a) Does the scheme's policy context support the proposal?
   • (b) Is the built form response acceptable given the physical and strategic context?
   • (c) Are there unreasonable impacts on the amenity of the surrounding area?
   • (d) If a permit is to be granted, must a development contribution be paid?
4. We have decided that the Council did not make the correct and preferable decision. A permit should be granted. Our reasons follow.

1. The whole of the existing retirement village will be demolished. Most vegetation on the subject land will be removed.
2. The new retirement village will include a large single-level basement providing car parking for 266 cars, including 17 spaces for visitors' cars. There will be two-way access to the basement from two access points off both Union Street and Cheeseman Avenue.
3. Above the basement will rise six separate buildings (Buildings A to F) that range from three to five storeys.
4. Building A is located on the north-west corner of the site at the corner of Cheeseman Avenue and Hawthorn Road. It is four storeys high with the upper (fourth storey) recessed at the corner of Hawthorn Road and Cheeseman Avenue. The corner portion is clad in light masonry while the rear (facing Hawthorn Road) section is in contrast dark masonry and does not have an upper level recess. See Figure 1, below.
5. Building B is located at the south-west corner of the site at the corner of Hawthorn Road and Union Street. This building is four storeys high with the upper (fourth storey) recessed from Hawthorn Road and Union Street. This building is clad in light masonry.
6. Building C is located at the north of the site and fronts Cheeseman Avenue with a side (east abuttal) to 2 Cheeseman Avenue. This building is three storeys high and is clad in ochre masonry. The building is set back from the east boundary (shared with 2 Cheeseman Avenue by 5.46 metres. The front setback from Cheeseman Avenue is set back 8.39 metres and is consistent with the setbacks of Cheeseman Avenue properties. The third storey is recessed from all sides.
7. Building D is centrally located within the site with the southern edge fronting Union Street. This building comprises three wings and is five storeys high at the northern and central wings, and four storeys at the southern wing facing Union Street. This building creates a central spine to the site. At the fifth storey, the building steps back at the north and south and the building is clad in dark masonry.
8. Building E is located at the north-east corner of the site and the east façade faces the rear private open spaces of 11, 9, 7 & (to a lesser degree) 5 Mackie Grove. The north façade of this building faces the rear private open spaces of 2 & 4 Cheeseman Avenue. This building is three storeys high and is set back from the east boundary (shared with Mackie Street properties) by a minimum of 9.24 metres and a maximum of 13.2 metres. It is set back from the north boundary (shared with 2, 4 & 6 Cheeseman Avenue) by 6.22 metres. This building is clad in light masonry.
9. Building F is located at the south-east corner of the site, with the south façade facing Union Street. The east façade faces the rear private open spaces of 5, 3 & 1 Mackie Grove and 107 Union Street. This building is three storeys high and is set back from the east boundary (shared with 5, 3 & 1 Mackie Grove) by a minimum of 9.24 metres and maximum of 13.2 metres and 19.29 metres with the shared boundary of 107 Union Street. It is clad in light masonry.

Figure 1 - View of Building A (with Building B in the background) looking south along Hawthorn Road, with the Cheeseman Avenue intersection in the foreground

(Source: Photomontage prepared by Orbit Solutions Pty Ltd)

1. It is therefore apparent that the buildings over three storeys high face Hawthorn Road or are centrally-located away from residential interfaces to the east and north.
2. The retirement village will contain 23 one-bedroom independent living units, 152 two-bedroom independent living units and 35 three-bedroom independent living units.
3. The main pedestrian entry and the vehicle drop off and pick-up area is off Hawthorn Road at a porte-cochere. There are also pedestrian entries off Cheeseman Avenue and Union Street.
4. The indoor communal facilities are located on the ground floor of Building A off the main entry. They include a 'health and well-being centre' comprising a swimming pool, gym, massage and other facilities, a meals area, a café, a library, a theatre and meeting rooms. The outdoor communal facilities include an outdoor dining area, and two areas of north-south oriented open space (between Buildings A & B and Building D, and between Building D and Buildings E & F).
5. Three street trees (two Purple Cherry Plum trees on Cheeseman Avenue and one English Oak tree on Union Street) are to be removed to create crossovers for the basement entries.
6. The architecture of the buildings is contemporary and the materials are predominantly of varying masonry finishes. The landscape proposed includes vegetation throughout the grounds and along the perimeter edge of the site to all boundaries.
7. The building will be constructed in stages, partly so that disruption to residents of the existing retirement village is minimised.

1. Stockland did not apply to amend or substitute the application plans. The plans before the Tribunal at the start of the hearing were the plans the parties agreed were the plans on which the Council made its original decision.[2]
2. At the start of the hearing, Stockland also included two drawings, in a book of plans it prepared for our reference during the hearing, showing adjustments to the location off Cheeseman Avenue of the bicycle parking facilities and the gas kiosk.[3] The same book of plans also included two drawings showing staging details.[4]
3. We found the application plans and the drawings in the book of plans difficult to read and assess during the first four days of the hearing. In our order dated 19 November 2018, we required Stockland to file and serve more detailed and complete elevations and sections.[5] The other parties had opportunities to assess and make submissions on those plans when the hearing resumed on 12 December 2018.
4. As is not uncommon in hearings of this kind, the parties tendered other drawings or plans during the course of the hearing. If necessary, we refer to these materials in these reasons.

1. The scheme's policy context for this site is multi-faceted and potentially conflicting. This is not unusual in planning cases. In this case, it requires particular attention to the task of balancing differing objectives in favour of net community benefit and sustainable development.[7] It also needs to be kept in mind that policies must be applied flexibly according to the overall policy and physical context in the form of guidelines and not mandatory requirements.
2. We can understand why the Council decided the proposal did not respond well to the policy context of the scheme, having regard to the following matters.

1. The subject land and its surrounds are in a 'Minimal Residential Growth' area under the scheme's 'Residential Strategic Framework Plan'.[8] It is not located in the two other areas for more intensive residential growth, generally located in and around the main activity centres. The land and its surrounds are located in NRZ3, entitled 'Minimal Residential Growth Area', which reflects its designation under the Framework Plan.
2. The scheme encourages greater housing density and diversity, including aged and affordable accommodation, in activity centres.[9]

1. The subject land and all of its surrounds is in an NRZ. One of the purposes of the NRZ is to recognise areas of predominantly single and double storey residential development.
2. This is the form of development of most of the area surrounding the subject land, being the land to the north in Cheeseman Avenue, to the east in Mackie Grove and on the west side of Hawthorn Road. However, the interface to the south (facing Union Street and Hawthorn Road) is different with a three-storey aged accommodation complex (Vasey RSL) and the Elster Creek reserve. The character of Oak Grange on the subject land is also 'predominantly single and double storey residential development' if one characterises a Retirement village as a form of residential development.
3. A design objective in DDO3 is to 'maintain the prevailing ... building scale and height of neighbourhoods'.[10]
4. The proposal is clearly not single or double storey residential development and does not maintain that scale and height.
5. In the NRZ, the maximum building height requirement for a Dwelling or a Residential building is 9 metres and 2 storeys at any point. The proposal clearly exceeds 9 metres and 2 storeys.

1. One of the purposes of the NRZ is to ensure that development respects the identified neighbourhood character characteristics.[11] The policy framework for the built environment seeks development that responds to character and the local context.[12]
2. It is policy to identify the preferred character of areas to provide greater certainty to residents and developers and to ensure development responds to this preferred character.[13] The subject land and its surrounds are in character precinct D1.[14] In this precinct, the preferred character emphasises dwellings sitting in established gardens, a sense of spaciousness around buildings by setbacks from both side boundaries and upper levels of dwellings being recessed.
3. The subject land and its surrounds are affected by DDO3. The design objectives include to 'preserve the existing character and amenity of the area as low rise (up to two storeys) suburban areas with a strong garden character'. We are obliged to consider 'whether the development respects and is compatible with the surrounding residential character'.[15]
4. To the extent the proposal does not incorporate low rise one-storey and two-storey dwellings within spacious garden settings, it does not respond well to preferred character.

1. The Council recognised that the scheme contains other policies and objectives that must be balanced against those above to which it ascribed greatest weight. As we have stated, the scheme requires all relevant policies and objectives to be balanced.

1. We agree with Stockland's submissions, in relation to housing policy for minimal residential growth, that 'minimal ... growth' does not necessarily equate with no or minimal change. We also give weight to the following policies and objectives and factors.

A retirement village does not contain dwellings

1. In applying the policy framework, it is necessary to keep in mind that accommodation in a Retirement village is provided in a 'living unit' or an 'independent living unit' and not in a Dwelling. That much is very clear from the definitions of Retirement village and Dwelling in the scheme.
2. This distinction has some important effects. It means the preferred character has little relevance to the proposal because it prefers a character comprised of dwellings, and in particular low-rise dwellings. It means the NRZ maximum building height requirements and minimum garden area requirements do not apply. It means the objectives and standards for two or more dwelling developments or for apartment developments do not apply.[16]
3. In effect, the authors of the scheme have impliedly provided that a Retirement village (and any other use that is not a Dwelling) should not be subject to any development requirement for a Dwelling.

1. The scheme seeks to create more housing diversity and choice by providing a range of housing types to meet increasingly diverse needs and varying densities in neighbourhoods.[17]

1. The scheme seeks to ensure that 'an appropriate quantity, quality and type of housing is provided ... suitable for older people ... '.[18] The Council recognises the trend of an ageing population and that it is 'essential' to provide accommodation so residents may age in place and spend their lives in the municipal district.[19]
2. The Council's Housing Strategy, to which we have already briefly referred, analyses various demographic data and concludes there is a need to provide 'a variety of housing options for older people'.[20]
3. We also had the benefit of Ms Wells' evidence in relation to the need for retirement village accommodation. Based on her knowledge and data analysis, we accept the current and projected supply of retirement village independent living units in the municipal district is well below the current and projected demand. We agree that there is a demand for quality, modern retirement village accommodation in the municipal district to enable ageing in place.

1. A Retirement village is a discretionary use in the NRZ. A purpose of the NRZ is to allow ' ... community and a limited range of other non-residential uses to serve local community needs in appropriate locations'. Having regard to Ms Wells' evidence, we find local demand for quality and modern retirement village accommodation is not being met.
2. The scheme contains a specific policy for discretionary uses.[21]
3. We find the subject land is in a preferred location for a discretionary use because it abuts a main road, is a large consolidated site, is on a street corner (in fact, two corners), is located near other discretionary uses (being the aged accommodation to the south, known as Vasey RSL), is close to a tram service and has safe pedestrian access off Hawthorn Road.[22]
4. The proposal responds satisfactorily to those parts of the built form and siting provisions in the policy because it meets ResCode front, side and rear setback provisions, noting that such provisions do not directly apply to a Retirement village.
5. The proposal does not respond so well to the built form provision in the policy that the height of a discretionary use should be no more than one storey above the prevailing building height and respects the prevailing built form of surrounding buildings.
6. Clearly, buildings between three and five storeys exceed the prevailing one and two storeys of surrounding single dwellings. However, the policy also seeks building height that is 'transitional'. We consider this issue in more detail later in these reasons, but it suffices to state here that by a combination of top floor setbacks (from the floor below) in all buildings abutting Cheeseman Avenue and Mackie Grove land and lowered floor levels in those buildings, the transition to surrounding dwellings is generally one to two storeys and is acceptable.
7. The proposal also responds well to the streetscape provision in the policy because vehicle parking and access is not a dominant element in any of the three relevant streetscapes and all parking is provided in a basement.

1. We agree with Mr Crowder that the subject land has attributes that make it a desirable site for a Retirement village. These include the fact that it is already used for that purpose, it has an unusually large area, it occupies a frontage to a major road between two intersections, the length of abuttals to other private land are relatively small in relation to its total perimeter, it abuts a tram service, and is in the general vicinity of a small activity centre, recreational facilities and health services.
2. The large size of the subject land is also relevant in a character sense. It is often held that the larger the land, the more capacity there is for the establishment of a new character and lesser weight should be given to existing or preferred character. It is apposite that 'the realities of the land size mean that a building of some scale must reasonably be anticipated'.[23]
3. It is also relevant to context that:
   • (a) The subject land's existing development for 110 independent living units is more intense than the prevailing one dwelling on a lot form in Cheeseman Avenue and Mackie Grove.
   • (b) The nearby Vasey RSL is an aged accommodation facility in a multi-storey building.
   • (c) A permit has been recently issued to develop land nearby at 68 Union Street for multi-storey aged accommodation.

1. As we stated at the start of this part of the reasons, we can understand why the Council and respondents submitted the proposal is a poor response to policy. However, those submissions have focused on the scheme's indications of an acceptable outcome for a development comprising dwellings. These are not relevant because the scheme recognises that independent living units in a Retirement village are not dwellings. The submissions also give insufficient consideration to the role of policy, the required balancing exercise, and the need for a proposal to be an acceptable (not ideal) outcome in a policy sense.
2. After undertaking the balancing exercise, we find the proposal is an acceptable response to the policy context.

1. Aged care housing may take a variety of built forms.[24] We agree with the Tribunal's recent observation that it cannot be expected that such housing adopts a 'domestic idiom even in a minimal change area'.[25] By providing accommodation in 3 to 5 storey buildings, the built form is more 'vertical' than the existing Oak Grange and many other retirement villages from an earlier era.
2. A more vertical built form in a suburban setting is not, by itself, objectionable. We agree with the Tribunal when it stated:

A vertical retirement village in a suburban setting is no longer an 'alien' [built] form where (by way of example) a single storey retirement village is increasingly unlikely given the lack of large sites and the competing development pressures for well-located large sites in strategic terms.[26]

1. We had some difficulty appreciating the full scope and extent of the proposed development. As we have already stated, we issued an order requiring Stockland to provide further elevations and sections, which clarified the treatment of each of the buildings' four elevations, varying masonry colour and finishes, building recesses and window detailing throughout the development.
2. The architecture of the development is austere and contemporary in its expression. The development features a unified architectural language throughout the entire site, of six rectilinear blocks ranging from three to five storeys in height. They are generally arranged as north-south wings with the exception of the building facing Cheeseman Avenue.[27] Facades are punctuated by fairly consistently-sized window and balcony inserts (with an absence of awning treatments) and windows are a mixture of flush-faced frames, recessed and projecting units.
3. The buildings generally have horizontal parapets and vertical recesses in facades to create visual breaks, and upper level recesses, setting higher forms back from principal facades. The facades are generally staggered by about 4 metres which breaks up the length of each building of about 50 metres. They are variously clad in three different brick colours, light grey, dark grey and ochre, and each brick colour type is laid in either flush-faced or textured finish, distinguishing upper and lower portions of the façade.
4. The buildings are arranged on the site to create two lengthy vegetated courtyards and a series of landscaped edges around the perimeter of the site. In the site plan below, at figure 2, north is to the top of the page.

1. Within the site the two central courtyards create varying building separations ranging from a maximum of 22.6 metres to a minimum of 16.21 metres. Landscaping plans show pathways, seating areas and generous planting throughout the development.
2. Rather than being a monotonous assembly of rectilinear buildings, we find that there is sufficient differentiation between buildings, façade treatments, heights and building separation between the buildings on site to create a village type atmosphere that would be a good outcome for future residents. We also find that the development when viewed from the public realm will present as a contemporary and well-resolved urban design outcome in this location.
3. The design responds positively to the character precinct D1 design guidelines. For example, the guidelines seek to avoid bulky buildings with poorly-articulated front and side wall surfaces. We agree with Mr Crowder's opinion that the buildings incorporate a variety of façade treatments that emphasise their horizontality and help articulate the buildings.
4. The main criticisms of the proposal's built form are bulk, amenity impacts, and materials and finishes. We now assess those criticisms.

1. The Council and respondents rely heavily on the municipal strategic statement, the Bayside Housing Strategy, character policy and DDO3 character objectives in submitting the proposal is a poor character response and displays unreasonable and excessive bulk.
2. The Council agreed, in effect, with the advice of its strategic planning officers that, despite a recessive upper level in most buildings, the five storey height was inconsistent with the surrounding area's designation as a minimal residential growth area, with NRZ purposes and with DDO3 objectives to respect the low scale character of the surrounding area.
3. We repeat what we have already stated that this criticism is misguided because it is based on policy preferences for dwelling developments.
4. The Council referred the application to Hansen Partnership, its urban design consultants, for advice. The Council properly tendered a copy of the written advice. Hansen Partnership was generally supportive of the application stating:

... we are broadly supportive of the proposed retirement village. Given the extensive nature of the site, its prominent Hawthorn road address and the existence of both existing retirement village (on site), plus Vasey RSL Care Centre to the south, we see little grounds to challenge the proposed built form, mass and scale.[28]

1. We agree with the overall conclusion in this advice.
2. Overall building bulk is also ameliorated by the spacing of individual buildings over the large site. Although the 3 metres ground level gaps between Buildings A & B and between Buildings E & F are not large, the ground level gaps between the three main building groups internal to the site (ie between Buildings A/B and Building D, and between Building D and Buildings E/F) are up to 22 metres. This reduces bulk impacts from public realm views in Cheeseman Avenue and Union Street.
3. The larger forms of the buildings and the greater separation between them (as we state, above) creates, as Mr Sheppard stated, a coarser grain than the surrounding single-dwelling forms.
4. Overall building bulk is also ameliorated by the transition in building height from the higher forms next to Hawthorn Road and in the centre of the site to the eastern and northern interfaces. By way of a guide, the overall building height of Buildings E & F is about 10.5 metres, which is only 1.5 metres above the maximum that would have applied if those buildings contained Dwellings. Given the Retirement village use, this height is not unacceptable.

1. Some of the respondents were critical of the streetscape impact of the three-storey (plus recessed fourth storey) form of Building B located just 4.1 metres from Union Street close to the Hawthorn Road intersection. We find the impact is acceptable because this is a very open intersection. Union Street and the adjoining creek reserve is up to about 50 metres wide at this point. The openness is extended by ground level parking on the opposite corner next to the Vasey RSL complex.

1. Policy in the scheme relating to discretionary uses encourages materials and finishes to 'reflect' those prevailing in the area.[29]
2. We repeat what we have already stated that a large site has more scope to develop its own character. This is particularly relevant for a Retirement village development where there is a significant provision of shared indoor and outdoor spaces.
3. We have referred, above, to the variety in materials and finishes, and we find them acceptable.
4. Building C is the most prominent building viewed from the Cheeseman Avenue heritage precinct. The ochre masonry in this building is appropriate and will assist in reflecting the character of the immediate environs.

1. The Council and respondents submit residents of abutting land at 2 & 4 Cheeseman Avenue and 1, 3, 5, 7, 9 & 11 Mackie Grove will be impacted with unreasonable amenity impacts of visual bulk and overlooking. We agree with Mr Crowder's opinion, that these interfaces are the most sensitive. We agree in part with the Council's and respondents' submissions.

1. In relation to the eastern interface to 1, 3, 5, 7, 9 & 11 Mackie Grove, the overall visual bulk impacts are acceptable. In terms of side setbacks to this interface, ResCode does not apply but can be a useful guide and the relevant B17 standard is met.
2. We acknowledge that there is only one three-metre wide gap between Buildings E & F over the total length of wall of about 100 metres. However, visual impact is ameliorated by the sunken form of the two buildings and by the relatively generous side setbacks of between 9.2 metres and 13.2 metres.

1. We also take into account that the length of wall in a view cone from the centre of the rear wall of any of the six existing Mackie Grove dwellings would be about 25 metres of wall ie a relatively small portion of the total wall. We have also taken into account that the three storeys at the interface is a transition between the four and (in part) five storeys in the western and central buildings of the proposal.
2. We have also considered concerns about sections of higher wall forms along the interface to accommodate the skillion roofs and angled ceilings in the relevant living units on level 3 (the topmost storey).
3. Although there is no pitched roof above the walls, we accept the respondents' submissions that this adds around 1.1 metres to the wall height and therefore to the visual impact. The respondents sought removal or reversal of those forms if a permit was to be granted.
4. There are only three sections of elevated wall (each about 13 metres long) along that interface and we accept they have more visual impact from the land to which those walls are directly opposite (ie 5, 7 & 11 Mackie Grove). From the plans, the visual impact may be thought greatest in relation to 11 Mackie Road, but that is where Building E is at its most sunken form and the wall height is only about 8 metres above ground level at the rear boundary of 11 Mackie Grove.
5. We have also had regard to the anticipated larger built form of non-discretionary uses, such as hospitals, places of worship and schools for which large breaks between individual building forms are neither typical nor expected and to the setbacks of those walls from boundaries.
6. The facades of the long lengths of the buildings are broken up with feature recesses that will assist in breaking up the visual bulk of the buildings throughout the development. The window assemblies are a variety of flush-faced, recessed and protruding elements that will further add variance to the façade length. The three types of masonry cladding are of face brickwork and textured finish and this will also add to an overall varied composition throughout the development.
7. We therefore find the overall visual bulk impact on this interface is acceptable.
8. In relation to the eastern and north-eastern interface to 2 & 4 Cheeseman Avenue, we do not find the visual bulk impacts to be acceptable. We do not have a concern about the east-facing interface from Building C because the top level of that building is recessed and the western side wall of the dwelling at 2 Cheeseman Avenue is relatively non-sensitive. We are also not concerned about the north-facing interface from Building E because the three-level form is sunken at this interface and the dwelling at 4 Cheeseman Avenue has roofed and walled a significant part of its rear boundary which limits the visual impact.
9. However, we do not find the visual bulk impact from the rear of the two-storey dwelling at 2 Cheeseman Avenue in a south-western view to be acceptable. The secluded private open space of that dwelling (incorporating an elevated deck) is located 10.76 metres and 14.5 metres from the nearest part of the four-storey wall and five-storey wall, respectively, in Building D.
10. The setback from the five-storey wall is unsatisfactory, particularly as the visual impact includes the north-facing and east-facing walls at the fifth storey on either side of the nearest point.
11. We will require deletion of the two northernmost three-bedroom units at level 4 (the fifth storey) to ameliorate the visual bulk impact. As a consequence, the internal arrangement of the two two-bedroom units to the immediate south of those two three-bedroom units can be reviewed and, for example, north-facing terraces included in those two units. They should also be enlarged to provide three-bedrooms because, for housing diversity reasons, we would prefer no reduction in the number of three-bedroom units.

1. Concerns were raised about two areas of potential overlooking. We find those concerns are made out, in whole or part, and some changes to the design response are needed. These can be managed by permit conditions.
2. The first concern is about potential overlooking from east-facing habitable rooms and balconies at levels 1 & 2 in the three-storey Buildings E & F.
3. These rooms and balconies are either 9.2 metres or 13.2 metres from the rear secluded private open space (SPOS) at 1, 3, 5, 7, 9 & 11 Mackie Grove. The relevant windows are not screened and have low sills. The relevant balconies are not screened.
4. We find the bedroom windows do not need to be screened at either levels 1 or 2 because the ResCode 9 metres standard, which we would apply as a guide, is met and because bedrooms are less intensively used and it is usual for room occupants to use blinds. We take a different view about some of the balconies and living room windows. These are more sensitive spaces.
5. We will require screening of the living room windows on the façade at level 2 in the unit in the north-eastern corner of Building E. The window in the living room of this unit is directly opposite the rear SPOS of 11 Mackie Grove. We do not consider screening is required of the unit in the same location at level 1 because the sunken nature of the building means there is no direct view into the surface of the open space at 11 Mackie Grove.
6. We will require screening of eight of the nine east-facing balconies at level 2. The balcony not requiring screening is the one in the southernmost location in Building F. It is nearly 20 metres distant from the relevant SPOS at 107 Union Street. The other eight at level 2 potentially overlook SPOS at 1, 3, 5, 7, 9 & 11 Mackie Grove. We would also require screening of the east-facing balconies at level 1 in Building F. The potential for overlooking is greater at this level in Building F than Building E because Building F is not sunk into the ground to the same extent, having regard to the fall of the land.
7. The risk with requiring balcony screens to 1.7 metres is an unreasonable impact on the internal amenity of the relevant units. We will not include that requirement. The objective of the screening will be to prevent downward views into the relevant SPOS. We will require a horizontal shelf or a potentially shorter, angled upward projection (at, say, 45 degrees), both extending from a balcony upstand shown on the plans. Again, consistent with the objective, louvers could be used instead of solid elements.
8. The second concern is about potential overlooking from north-facing habitable rooms windows at levels 1 & 2 in the three-storey Building E.
9. These windows are 6.2 metres from the rear SPOS at 2 & 4 Cheeseman Avenue. The relevant windows are not screened and have low sills. Although the SPOS is largely screened by boundary structures such as fence extensions and covered pergolas, future residents may choose to remove or change these structures and open up potential overlooking. We agree with Mr Crowder that, on balance, the windows should be screened.

1. The main external amenity impacts relied on by the Council and the respondents were visual bulk and overlooking. We have made our findings on these matters in the previous section of these reasons.
2. We agree that the units have acceptable internal amenity. There are various communal facilities including a health centre, meeting rooms and dining facilities. There are generous outdoor recreational spaces. Only 6 of the 210 units are south-facing. Many have a dual orientation. There is no reliance on borrowed light for bedrooms. Every unit has a basement storage area. There is no unreasonable internal overlooking. Ground level entry points are clear and covered.
3. Stockland tendered architectural drawings of typical unit layouts.[30] As we have stated, the clause 58 apartment design requirements do not apply to Retirement village independent living units. However, they show how compliance with most of the clause 58 requirements can be met.

1. The planning scheme seeks a quality landscaped response. The application materials included a landscape proposal document and a concept plan.[31]
2. Largely due to the size of the basement, most existing vegetation will be removed. Four trees on the site will be retained, mainly in the south-western corner of the land. Much of the new planting will be in planters above the basement. In the centre of the site at ground level, there are two voids, each about 6 metres by 4 metres, that enable trees to be planted in deep soil in the basement (in opening of about 9 metres by 3 metres) and project through the voids into the above basement ground level garden areas.
3. As we have already stated, three street trees (two Purple Cherry Plum trees on Cheeseman Avenue and one English Oak tree on Union Street) are to be removed to create crossovers for the basement entries. As well, one street tree (a Maple on Hawthorn Road) will be removed for the porte cochere entry.
4. Mr Eldridge is a registered landscape architect and, in a detailed submission, drew attention to what he submitted were the positive and negative features of the landscaping proposals. We will not refer to all parts of his submissions. They included the following requested amendments to address the negative features:
   • (a) Setting back the basement from Cheeseman Avenue to create a wider deep soil area for planting.
   • (b) Setting back the gas and electrical kiosks from the Cheeseman Avenue boundary to provide a landscaped setting and relocating the water kiosk from Union Street away from the TPZ and CRZ of a tree to be retained.
   • (c) Setting back the basement further from the eastern boundary adjoining the land at 1, 3, 5, 7, 9 & 11 Mackie Grove so that the proposed 3 metres-wide deep soil planting area is extended so that deep soil is available for all of the 4 metres-wide landscaped buffer along this boundary.
   • (d) Increasing soil volumes in the above basement planters.
   • (e) Increasing access to deep soil volumes for planting between the Hawthorn Road boundary and the port cochere.
5. Mr Vernon's evidence was a peer review of the landscaping proposals. He agrees with some of Mr Eldridge's concerns and referred to other changes he supports.
6. The removal of most vegetation from the land is acceptable given the size of the land and the intention to create a new, enhanced and unified landscape response.
7. We agree with Mr Vernon's recommendation that the minimum setback from the western edge of the porte cochere driveway to the Hawthorn Road boundary be increased to 1.15 metres. This has now been included in the plans on which the Council made its decision.
8. Mr Vernon tendered a sketch section showing a deep planting area 1.5 metres wide from the porte cochere support structure. Mr Eldridge asked if this area could be increased if the porte cochere was supported by concrete piers. Mr Vernon agreed it could and Stockland subsequently tendered a sketch section prepared by Mr Vernon that showed how this might be done.[32] We agree this will provide conditions for an enhanced streetscape landscape response.
9. We also agree with Mr Vernon's recommendation that the basement be set back further from Cheeseman Avenue to 2.5 metres and 4.5 metres to enable deep soil planting and that the gas kiosk be moved 4 metres to the east with a street setback of one metre. Both these changes would enable an enhanced landscaped setting to Cheeseman Avenue.
10. Stockland accepted these recommendations and tendered drawings that show how this can be achieved, including a rearrangement of the basement.[33] Mr Vernon also sought a change to the layout of the bicycle racks off Cheeseman Avenue to allow more planting opportunities. We will include all these changes in permit conditions.
11. We will not require the basement to be set back further off the eastern boundary because the 3 metre-wide deep soil area (and adjoining section of planter box) will enable a satisfactory landscape response on this interface, in accordance with Mr Vernon's opinion.
12. We agree with Mr Vernon that the 1.8 metre high semi-transparent fence along Union Street should be lowered to 1.5 metres. This would better accord with scheme objectives for the precinct. We also agree that the four proposed orchard trees should be replaced with medium-size evergreen trees.
13. We also agree with Mr Vernon's recommendation that the ground level raised planters need to be able to contain greater volumes to support canopy trees and have minimum profile sizes. We will include appropriate conditions.
14. Both Mr Eldridge and Mr Vernon agree the provision of irrigation will be vital to the success of the landscaping outcome. We will include an appropriate condition.
15. The Council and some of the respondents support a requirement that at least 50% of the tree species be indigenous. We will include that requirement.
16. Finally, we do not agree with the request by Ms Eldridge that the Union Street crossover and ramp be relocated to align with the existing access to avoid the removal of the English Oak street tree. The loss of one of the approximately 9 Oaks along Union Street opposite the subject land is not so deleterious as to warrant a major redesign.

1. Our findings on access, traffic and parking issues are set out below with brief reasons.

1. As we have already stated, the provision of all on site parking spaces in the basement is a very positive factor and is consistent with the scheme's character objectives.
2. The development includes a single level basement containing 266 car spaces. Stockland proposes that 245 will be for residents, 17 for residents' visitors and 4 surplus spaces, including for retirement village staff. Of the 266 spaces, 14 will be suitable for disabled persons. There is also provision for a retirement village minibus and one shared car wash bay.[34]
3. This provision is acceptable. We agree with Ms Dunstan that the statutory parking requirement is 245 spaces for residents.[35] Hence, 21 spaces are surplus. There is no statutory requirement to provide spaces for visitors.
4. Ms Dunstan nonetheless carried out a demand assessment for visitor parking. It shows a peak demand for 21 spaces in the weekday midday period. We agree with Ms Dunstan that the possible shortfall of 4 spaces can be met in the basement (based on availability having regard to the demand assessment for residents) or in the porte cochere area. We observe there would also be overflow kerbside parking (about 23 spaces) available adjoining the subject land.[36]
5. Hence, even though there is no statutory requirement for visitor parking, we support Stockland's intention to provide visitor parking in the basement. It will be sufficient, except at times of peak demand and at those times, the minor shortfall can be met in the porte cochere area or on the road network abutting the subject land.

1. The development is to be constructed in at least two stages. The first stage is the construction of Buildings A & B and that part of basement below those buildings and extending part of the site to the east of Building A. Ms Dunstan's evidence is that if stage 1 comprises 74 units, 94 spaces for residents can be provided. The statutory requirement for those units would be 98 spaces, and hence a deficit of 4 spaces.
2. Stockland proposes to allocate 88 spaces for residents and 6 spaces for visitors and others. This equates to a reduction in 10 spaces for residents. We accept Ms Dunstan's demand assessment based on the empirical lower demand for spaces in retirement village units compared to apartments and based on car ownership data.
3. We find that constructing the development in stages is acceptable, for reasons that include the ability to keep existing Oak Grange residents on site as long as possible. However, the initial staging plan must be reviewed because we are not satisfied that all the car spaces in stage 1 are accessible from an aisle. We will require an updated staging plan in condition 1 of the permit.
4. Accordingly, although Ms Dunstan's assessment and opinion supports the grant of a reduction in parking in relation to stage 1, we are not persuaded to grant permission for a reduction because we cannot be sure if there is a deficit under an updated staging plan to be prepared by Stockland and approved by the Council. It suffices that no permission for a reduction is required for the development as a whole. The sufficiency of parking in any one stage can be a secondary consent matter for the Council.

1. We find that a new single-lane southbound access off Hawthorn Road is an acceptable outcome having regard to traffic considerations. We rely on Ms Dunstan's opinion and VicRoads' consent subject to permit conditions. The conditions include some modification of the design at the ingress and egress points to facilitate ambulance access. We will grant permission for the new access.
2. We accept Ms Dunstan's opinion that unloading and loading of furniture for residents can be reasonably carried out from the road network and not from the porte cochere entry.

1. The main issue of concern to the Council and the respondents is traffic distribution and the amenity impact of additional traffic in Cheeseman Avenue and Mackie Grove. The development includes two-way crossovers and two-way basement ramps to Cheeseman Avenue (about 35 metres east of Hawthorn Road) and to Union Street (about 90 metres from Hawthorn Road).
2. The Council and the respondents do not support the proposed Cheeseman Avenue access. Stockland contends it is necessary for construction of stage 1. The construction of the Union Street access will occur at a later stage. If the Tribunal ultimately grants a permit including the Cheeseman Avenue access point, the Council and the respondents seek its removal upon completion of the development.
3. Under the scheme, it is policy to restrict access points to one 'unless two access points are required for the safe, convenient and efficient movement of vehicles'.[37] The Council and respondents claim the Cheeseman Avenue access is not required. Ms Dunstan conceded that, in its completed form, the access to Cheeseman Avenue would not be required and the development could be adequately accessed just from Union Street.
4. Although the Cheeseman Avenue access point may not be required upon completion of the development, it is reasonably required before that point in time under the staging plans. The policy preference for one access point has greater weight for smaller sites with a single street frontage where it is desirable to limit additional crossovers to streets. The subject land is particularly large with three street frontages. The main frontage to Hawthorn Road is over 110 metres. That means the access points to the other two street frontages are at least that distance apart from each other.
5. We consider it is neither reasonable nor necessary that the access point be removed when the Union Street access point is available. As the Cheeseman Avenue intersection with Hawthorn Road is not signalised but the Union Street intersection with Hawthorn Road is signalised, the Cheeseman Avenue access point should operate as a secondary access point.
6. Ms Dunstan may be correct on traffic grounds that the environmental capacity of Cheeseman Avenue and Mackie Grove will not be exceeded by traffic generation from the development. However, we agree with the Council and the respondents that steps should be taken to ensure the Cheeseman Avenue access point will operate only as a secondary access point and encourages egress movements west to Hawthorn Road and not east along Cheeseman Avenue and Mackie Grove towards Union Street.
7. We will therefore require, by no later than the date the development is complete, steps to be taken to the Council's satisfaction so that eastbound egress movements from the Cheeseman Avenue access point are either prevented or effectively discouraged.

1. The Special Building Overlay (SBO) affects part of the subject land. By our rough calculation, the part is about 2,000 square metres in the south-west corner at the intersection with Union Street but extending from close to the intersection with Cheeseman Avenue to the abuttal with 107 Union Street.
2. Mr & Ms Eldridge referred to recent flood events in nearby Elster Creek and parts of the road network being inundated. Among their concerns was the possibility that some ground floor units would be flooded and that the vehicle access off Hawthorn Road to the porte cochere would be inaccessible. No third party rights apply to permission under the SBO so we are not required to consider the respondents' flooding concerns. The Council did not rely on flooding issues in its grounds.
3. The affected buildings in the proposal and their access points and the Union Street basement ramp are built above the relevant flood level and the floodway manager, Melbourne Water, has not objected to the grant of permit subject to the inclusion of specified conditions, which we will include.

1. As stated in the information section at the start of these reasons, the subject land is wholly located in a DCPO. In assessing the permit application and in its draft permit conditions, the Council has consistently held that the effect of DCPO is that a contribution must be paid if a permit is granted.
2. Stockland contends no contribution is payable. In correspondence dated 29 October 2018 it identified whether the scheme requires a permit for the redevelopment of a retirement village comprising independent living units to include a condition requiring payment of such a contribution is a question of law for the Tribunal's determination.
3. After considering the Council's and Stockland's written and oral submissions about the question, the presiding member determines that the scheme does not require the inclusion in such a permit of a condition requiring such a payment. The presiding member's reasons follow and any reference to 'I' in this section of the reasons is a reference to the presiding member.

1. Under the DCPO, a development contributions plan must be incorporated into the scheme before a permit may issue to, relevantly, construct 'a building'.[38] A permit must be consistent with the development contributions plan and must 'include any condition required to give effect to any contributions or levies imposed, conditions or requirements' set out in the DCPO schedule.[39]
2. The Bayside Drainage Development Contributions Plan 2014 (Amended March 2017) (the DCP) is incorporated into the scheme.[40] The purpose of the DCP is, in essence, to fund improvements and upgrades to the drainage network.
3. The relevant schedule to the DCPO is schedule 1 (DCPO1). The subject land is wholly within the area affected by DCPO1. In broad terms, the purpose of DCPO1 is to give effect to the DCP. DCPO1 specifies that drainage is the 'facility' to be provided, in part, by funds the Council receives under a 'development infrastructure' levy 'payable by the development ... of residential land'.
4. DCPO1 provides the levy is '2000' for 'residential development'.[41] A 'note' in DCPO1 provides that the levy 'on residential land is specified in dollars per dwelling'.
5. Under the DCP and for the purposes of the DCP, the definition of a dwelling has two arms. The first arm adopts the definition in the 'Land Use Terms Table' of the scheme. The second arm extends that definition by stating it includes 'any dwelling contained within the Accommodation Group under clause 75.01' of the scheme.

Does the proposal comprise residential development of residential land?

1. It cannot be disputed that the subject land is residential land. 'Residential land' is not defined in DCPO1, the DCP or elsewhere in the scheme. However, the subject land is identified in 'residential land' in the map describing existing land use in the scheme.[42] It is also residential land in the sense as being land intended for residential use because it is in an NRZ.
2. It is perhaps less clear whether the proposal is 'residential development'. 'Residential development' is also not defined in DCPO1, the DCP or elsewhere in the scheme. The question does not turn on this point and it suffices for me to tentatively conclude that the primary purpose of the proposal, indeed any retirement village, is to provide premises where people may permanently reside and, on this reasoning, the proposal may be characterised as residential development.

Does the proposal comprise one or more dwellings?

1. As I have already stated, the definition of dwelling in the DCP has two arms. The first arm provides, in effect, that the proposal comprises one or more dwellings if, in effect, the use of the accommodation units referred to as 'independent living units' are use for dwellings as defined in the Land Use Terms Table of the scheme.
2. That table is currently found in clause 73.03 of the scheme. In it, use for a 'dwelling' is defined as 'a building used as a self-contained residence' and must include four specified features and may include 'outbuildings and works normal to a dwelling'.[43] It is a definition of use and not development and the question is not resolved by examining the type of development in the proposal. The question is whether the proposal is properly characterised as a use for Dwellings or use for Retirement village.
3. A Retirement village is defined as:

Land used to provide permanent accommodation for retired people or the aged and may include communal recreational or medical facilities for residents of the village[44]

1. The Council submitted the Tribunal's reasoning in Blue Hill Residences[45] is apposite and should be followed to make a finding that the proposal comprises dwellings and that a levy must therefore be payable. I would not follow the reasoning in that decision and that decision should be distinguished on its facts.
2. In Blue Hills Residences, a permit was granted to use land for a Retirement village and the permit allowed 273 independent living units and other facilities including serviced apartments, a nursing home and communal facilities. At the relevant time, the definition of a Retirement village was the same as it is today. The permit included a requirement to pay a development infrastructure levy in accordance with a development contribution plan.
3. The relevant development contribution plan imposed a levy on 'residential development' including 'multi-dwelling developments' calculated on specified number of dollars for 'each new dwelling ...'. The development contributions plan did not define a 'multi-development development'. The Tribunal found the ordinary meaning of 'multi-dwelling development' included collectively the independent living units and apartments after a careful consideration of purpose of the development contributions plan and other relevant issues with that finding. The Tribunal sought to give effect to purpose and to seek a practical and common sense outcome.[46]
4. An important difference in facts between those in Blue Hills Residences and this proceeding is that the development included independent living units and apartments. Another is that the development that attracted a levy was both different (i.e. 'multi-dwelling development' and not 'dwelling') and was not defined.
5. In construing the ordinary meaning of 'multi-dwelling development' under the development contributions plan, the Tribunal correctly drew the distinction between a Retirement village and a Dwelling for a difference purpose i.e. characterising use under a scheme. In going about its task, the Tribunal stated 'for the purposes of the definitions of land use in the scheme, a retirement village is not a dwelling, but a retirement village may include one or more dwellings and/or other forms of accommodation and other ancillary features'.[47]
6. My task is different in this proceeding. I must find whether the real and substantial purpose for which the subject land would be used would be for dwellings or a retirement village as those uses are defined in the scheme.
7. Stockland seeks a permit to use and develop the land for a Retirement village. It intends to provide 'permanent accommodation' for 'retired people or the aged' in each of the independent living units. It intends to provide substantial communal recreational and other facilities for all residents of the independent living units. It does not intend to provide dwellings because it does not intend to provide 'self contained accommodation' for persons who are not retired or not aged, and cannot lawfully provide that accommodation for such persons in a Retirement village.
8. The Council sought to further argue that the proposal includes 187 independent living units containing 2 or 3 bedrooms and this suggests the likelihood of short or longer term occupation by people other than a single or couple retired or aged person, such as younger family members or friends. This possibility does not disturb a finding that the real and substantial purpose is permanent accommodation for retired persons or the aged because, in land use characterisation terms, temporary occupation by other persons would be an ancillary activity to the dominant use of Retirement village.
9. In conclusion, development for an independent living unit in a retirement village may look much like development for a dwelling. In this proceeding, the independent living units are generously dimensioned and fitted and appear similar to generous apartments. However, that is irrelevant to deciding whether the use of the independent living units is for the real and substantial purpose of dwellings or a retirement village. An independent living unit, if occupied by retired persons or the aged, might still be capable of being characterised as a dwelling.
10. However, it is the restriction on occupation of the independent living units by persons who are not retired or the aged plus the extensive nature of the communal facilities that makes the real and substantial purpose of the proposal as for a retirement village and not for dwellings.

Does the proposal include any dwelling contained within the Accommodation group?

1. The definition of dwelling in the DCP has two arms, as previously stated. I must now consider whether the proposal meets the second arm, even if it does not meet the first arm.
2. Clause 75.01 includes (or rather, included, and I will return to this point shortly) nesting diagrams, one of which is the 'Accommodation group'. It is headed by the land use Accommodation under which sit 17 defined uses, including Dwelling and Retirement village.
3. Accommodation is 'land used to accommodate persons'.[48]
4. A Dwelling is defined in the scheme as 'a building used as a self-contained residence' and must include four specified features that are presently unnecessary to set out and may include 'outbuildings and works normal to a dwelling'.[49]
5. A Retirement village is defined in the scheme as 'land used to provide permanent accommodation for retired people or the aged and may include communal recreational or medical facilities for residents of the village'.[50]
6. On its face, Retirement village appears to come within the second arm. However, the question is precisely whether the proposal includes a Dwelling in the Accommodation group and I will need to return to that point

1. Stockland submitted this second arm of the definition cannot and does apply because clause 75.01 no longer exists and there is no longer an Accommodation group in that clause. The Accommodation group is now found in clause 73.04-1 and definitions of Dwelling and Retirement village are now found in clause 73.03 of the scheme.
2. Based on the reasoning of the Supreme Court in The Sisters Windfarm,[51] Stockland submitted the Tribunal must not simply replace or update the words in the scheme (in this proceeding, the words in the definition in the DCP being a document incorporated in the scheme) so that the second arm reads as a reference to clause 73.04-1 (together with clause 73.03).
3. I do not accept this submission. Stockland has overlooked the effect of statutory interpretation rules relating to repealing and remaking of a subordinate instrument. A planning scheme is a subordinate instrument. By Amendment VC152 to the scheme, nesting diagrams in clause 75.01 and the land use definitions in clause 74 were deleted and hence 'repealed'. They were replaced, and hence 're-made', with the nesting diagrams in clause 73.04 and the land use definitions in clause 73.03. Some changes were included in the new clauses and, hence, were 'modified'.
4. If a provision of a subordinate instrument is repealed and remade with or without modification, any reference in any subordinate instrument to the repealed provision is a reference to the re-made provision.[52] Accordingly, the reference to 'clause 75.01' in the DCP is a reference to clause 73.04 (together with clause 73.03) of the scheme.

Does the proposal include a dwelling in another use?

1. The proposal would be a Dwelling if it included a Dwelling in another use included in the Accommodation group. Some of the other uses in the Accommodation group include a Dwelling. Some do not. The ones that do include Group accommodation, Residential village and Caretaker's house.
2. The meaning of this expression is unclear. It might mean a dwelling in a Group accommodation, Residential village and Caretaker's house. Alternatively, it might mean a Dwelling that is included in but not part of a Group accommodation, Residential village and Caretaker's house. Fortunately, in this proceeding, it makes no difference. To come within the second arm, the use must be a Dwelling that is part of a use that is not characterised as a Dwelling but that could be characterised separately as a Dwelling. That is not the case in this proceeding.

Is the proposal development exempt from payment?

1. A schedule may exempt 'types of development' from payment of a levy.'[53] 'Residential development that does not create any additional dwellings' is an exempted development type.[54] The Council submits there is no specific exemption for a retirement village development, either in DCPO1 or the DCP, and therefore the proposal is not exempt. Stockland submits the proposal does not include any dwellings and therefore does not create any 'additional dwellings' and must therefore be exempt. It is uncertain whether the proposed development is exempt.
2. I doubt that it is because the word 'additional' connotes the need for existing development to be one or more dwellings, which is not the case in this proceeding. However, as I found that no levy is payable in respect of the proposed development, it is unnecessary to make a finding about whether an exemption applies.

IS PERMISSION REQUIRED FOR RETIREMENT VILLAGE USE?

1. In its application to the Council, Stockland sought permission to use the land for Retirement village. The Tribunal was unsure why such permission was needed given the use started in the mid 1980s and residents are still living in the units.
2. Stockland explained that it is seeking such permission because the existing buildings will be demolished in stages and no residents will be living in substantial parts of the land during the several stages of construction. Stockland also submitted the law regarding loss of existing use rights when buildings are intentionally demolished is not settled, and it did not want there to be any uncertainty about the use of the land once construction is complete.
3. It is unnecessary to make a finding about need to grant use permission. The Council did not oppose such permission being included in any permit that the Tribunal ultimately granted. We will include the permission to remove any doubt.

1. We have considered the detailed submissions of the parties on the Council's without prejudice permit conditions in fixing the conditions set out in Appendix A.

1. For the above reasons, the Council's decision will be set aside. A permit will be granted subject to conditions.

Use for a Retirement village, buildings and works for a Retirement village, and creation or alteration of access to Hawthorn Road

1. Before the development starts, 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 and three copies must be provided. The plans must generally be in accordance with the plans prepared by Bates Smart Pty Ltd submitted with the permit application, but modified in accordance with the plans prepared by Bates Smart Pty Ltd drawing nos. A07 000 Rev C dated 21 November 2018, A07 001 Rev C dated 21 November 2018, A07 010 Rev A dated 27 November 2018, A07 011 Rev A dated 27 November 2018, A07 012 Rev A dated 27 November 2018, A07 013 Rev A dated 27 November 2018, A07 014 Rev A dated 27 November 2018, A07 015 Rev A dated 27 November 2018 & A08 000 Rev B dated 27 November 2018, and further modified to show:

1. An increase in the basement setback to Cheeseman Avenue to 2.5 metres and 4.5 metres to enable planting in natural ground conditions in the front setback as shown on plans prepared by Bates Smart Pty Ltd drawing A02 000 Rev D dated 25 October 2018 & drawing A02 B01 Rev D dated 19 October 2018. 2. The relocation of the gas kiosk located on Cheeseman Avenue to 4 metres to the east of the accessway with a setback of 1 metre from the property boundary, generally in accordance with the plans prepared by Bates Smart Pty Ltd drawing A02 000 Rev D dated 25 October 2018 to allow for the installation of a canopy tree (west side of the kiosk) and hedge planting (along the street edge).

1. An amendment to the layout of the bicycle racks to allow for more planting opportunities to the Cheeseman Avenue frontage.

1. A change to the design of the accessway off Cheeseman Avenue and/or the installation of signage so that egress from the basement is a left hand only turn. 2. The deletion of the two northernmost units at level 4 (fifth storey) in Building D with both the consequential internal re-organisation and enlargement to three-bedrooms of the two two-bedroom units to the immediate south of the deleted units. 3. Horizontal or upward-angled balcony upstand projections for the balconies for all east-facing units at level 2 (third storey) in Buildings E & F other than the southernmost unit in Building F and for the balconies for all east-facing units at level 1 (second storey) in Building F other than the southernmost unit in Building F. The projections must be either solid in form or no more than 25% transparent. 4. Screening of the north-facing habitable room windows at levels 2 & 3 (second and third storeys) in Building E. The windows must have a sill height of no less than 1.7 metres above floor or have fixed, obscure glazing in any part of the window below 1.7 metre above floor level or have permanently fixed external screens to at least 1.7 metres above floor level and be no more than 25 per cent transparent. 5. Building materials and finishes generally in accordance with the drawings prepared by Bates Smart Pty Ltd tendered as part of exhibit A57 in VCAT proceeding no. P1256/2018 on 16 November 2018. 6. A detailed staging plan that ensures access to all relevant basement car spaces in each stage. 7. Window detail generally in accordance with the window detail plans prepared by Bates Smart Pty Ltd tendered as exhibit A63 and part of exhibit A57 in VCAT proceeding no. P1256/2018 on, respectively, 16 November 2018 and 12 December 2018. 8. Detail of building wall recesses, generally in accordance with the sketch 'Typical Balcony Elevation Recess, Detail 03' prepared by Bates Smart Pty Ltd tendered as part of exhibit A57 in VCAT proceeding no. P1256/2018 on 16 November 2018.

1. No street boundary fence greater than 1.5 metres in height.

1. Screening of the east-facing living room window of the unit at level 2 in the north-eastern corner of Building E in accordance with standard B22 in clause 55.04-6 of the Bayside Planning Scheme.

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

1. Before the occupation of the site commences or by such later date as is approved in writing by the Responsible Authority, all buildings and works must be carried out and completed to the satisfaction of the Responsible Authority.

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

1. All pipes, fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.

1. Before the development starts, detailed plans to the satisfaction of the Responsible Authority must be submitted to and be endorsed by the Responsible Authority. The plan must be drawn to scale with dimensions and three copies must be provided. The plans must show:

1. The type of water sensitive urban design stormwater treatment measures to be used. 2. The location of the water sensitive urban design stormwater treatment measures in relation to buildings, sealed surfaces and landscaped areas.

1. Design details of the water sensitive urban design stormwater treatment measures, including cross sections.

These plans must be accompanied by a report from an industry accepted performance measurement tool which details the treatment performance achieved and demonstrates the level of compliance with the Urban Stormwater Best Practice Environmental Management Guidelines, CSIRO 1999.

1. The water sensitive urban design stormwater treatment system as shown on the endorsed plans must be retained and maintained at all times in accordance with the Urban Stormwater - Best Practice Environmental Management Guidelines, CSIRO 1999, to the satisfaction of the Responsible Authority.

1. Before the development starts, a detailed landscape plan to the satisfaction of the Responsible Authority must be submitted to and be endorsed by the Responsible Authority. The plan must be generally in accordance with the landscape concept plan drawn by Landscape Design Partnership drawing nos. TP02 Rev F, TP03 Rev A & TP04 (2 sheets) all dated 19 February 2018 and be drawn to scale with dimensions and three copies must be provided. The plan must be modified to show access to additional deep soil for planting along Hawthorn Road between the port cochere entry and exit, generally in accordance with the sketch details prepared by CDA Design Group Pty Ltd in drawing no. SK01 P3 dated 3 December 2018. The plan must include replacement of the four orchard trees along the boundary interface with 107 Union Street in accordance with paragraph 33 of Mr Tim Vernon's statement of evidence dated 26 October 2018 in Victorian Civil and Administrative Tribunal Proceeding no. P1256/2018. The plan must show the planting of a canopy tree on the west side of the gas kiosk off Cheeseman Avenue. The plan must show that at least 50% of tree species selection are to be indigenous to the satisfaction of the Responsible Authority. The plan must also include:

1. A survey, including, botanical names of all existing trees to be retained on the site including Tree Protection Zones calculated in accordance with AS4970-2009. 2. A survey including botanical names, of all existing trees on neighbouring properties where the Tree Protection Zones of such trees calculated in accordance with AS4970-2009 fall partially within the land.

1. A planting schedule of all proposed trees and shrubs, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant. Planting should meet the requirements of Standard D10 of the Bayside Planning Scheme in relation to deep soil areas.

1. The landscaping and/or planting that is proposed within the areas of the site not covered by buildings or hard surfaces. 2. Details of surface finishes of pathways and driveways. 3. Any increase or change to landscaping areas resulting from condition 1 changes. 4. The raised planters intended to sustain canopy trees should be a minimum of 1m deep and contain soil volumes commensurate to support the size of trees generally at a volume of 0.6 m3 of growing medium per 1 m2 tree canopy. 5. The raised planters intended to support hedge planting to be of a size and soil volume that is appropriate to support the plantings proposed therein, and be generally a minimum of 0.8 m high and 1 m wide. 6. The raised planters intended to support low shrub and ground cover planting appropriate to support the plantings proposed therein, and be generally to a minimum of 0.6 m high and 0.8 m wide. 7. The natural grass planters should be 0.3 m profile including soil medium and drainage. 8. An irrigation management plan in accordance with condition 9.
2. An Irrigation Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Irrigation Management Plan will be endorsed and will form part of this permit. The Irrigation Management Plan must make recommendations for:
   • (a) differential demands of the vegetation within the site complying with the provisions, recommendations and requirements of the endorsed Landscape Plan; and
   • (b) programmed maintenance for the irrigation system including flushing, checking systems integrity, monitoring sensors and calibration settings.
3. Before the occupation of the development the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
4. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.

1. Before the development starts, including any related demolition or removal of vegetation, a Tree Management Plan (report) and Tree Protection Plan (drawing), to the satisfaction of the Responsible Authority, must be submitted to and be endorsed by the Responsible Authority.
2. The Tree Management Plan (report) must be specific to the site, be in accordance with Australian Standard: Protection of Trees on Development Sites AS4970-2009 and include:
   • Details of Tree Protection Zones for all trees to be retained on the site and for all trees on neighbouring properties where any part of the Tree Protection Zone falls within the subject site, including all Bayside City Council street trees to be retained;
   • Comment on methods to be utilised and instruction on how to deploy them;
   • Comment on when the protection measures are to be deployed;
   • Comment on when the protection measures can be modified;
   • Process that will be followed if any damage occurs to a tree;
   • Process that will be followed if construction works require alteration to protection measures outlined in report; and
   • Stages of development at which inspections will occur.

Any proposed alteration to the plan must be assessed by the site arborist and can only occur following the approval of the site arborist. Such approval must be noted and provided to the Responsible Authority within 28 working days of a written request.

Any damaged tree must be inspected by the site arborist without any delay and remedial actions undertaken. Such actions must be documented.

The Tree Protection Plan must be drawn to scale and show the location of all tree protection measures to be utilised.

If tree protection measures are proposed to be changed during the development, one plan for each stage of tree protection measures must be submitted.

1. All protection measures identified in the Tree Management and Protection Plans must be implemented, and development works undertaken on the land must be undertaken in accordance with the Tree Management and Protection Plans, to the satisfaction of the Responsible Authority.
2. Before the development starts, including demolition or removal of vegetation, the name and contact details of the project arborist responsible for implementing the Tree Management Plan must be submitted to the Responsible Authority.
3. Any pruning that is required to be done to the canopy of any tree retained is to be done by a qualified arborist to Australian Standard - Pruning of Amenity Tree AS4373-2007. Any pruning of the root system of any tree to be retained is to be done by hand by a qualified arborist.
4. Before the development starts, including any related demolition or removal of vegetation, a Tree Impact Assessment Report must be submitted to and be endorsed by the Responsible Authority.

The report will be in accordance with part 2.3.5 of Australian Standard Protection of Trees on Development Sites 4970 and will identify impacts that may be detrimental to the tree. The report will include design responses required to reduce any identified negative impact. The proposal will be modified to include any recommendations made in the report.

1. Before the development starts, tree protection fencing is to be established around the street trees marked for retention prior to demolition and maintained until all works on site are complete. The fencing is to be constructed and secured so its positioning cannot be modified by site workers. The fencing is to encompass the entire nature strip under the drip line of the tree. The Tree Protection Zone is to be established and maintained in accordance with AS 4970-2009. During construction of the crossover, tree protection fencing may be reduced to the edge of the crossover approved by Bayside City Council to facilitate the construction of the crossover.
2. Unless otherwise agreed by Bayside City Council, there is to be no soil excavation within 3 metres of any street tree asset measured from the edge of the trunk.

1. Before development starts, an updated Sustainability Management Plan to the satisfaction of the Responsible Authority must be submitted to and endorsed by the Responsible Authority. The plan must demonstrate that the development will achieve a Green Building Council Australia 4 Star Green Star Design and As-Built rating to the satisfaction of the Responsible Authority.

1. Before the development starts, the permit holder must apply to Bayside City Council for the Legal Point of Discharge for the development from where storm-water is drained under gravity to the Bayside City Council network.
2. Before the development, detailed plans indicating, but not limited to, the method of storm-water discharge to the nominated Legal Point of Discharge (and On-Site Detention System where applicable) must be submitted to and approved by Bayside City Council.
3. Unless otherwise agreed by Bayside City Council, there is to be no encroachment into the 1.2 metres wide drainage and sewerage easement in the north-west corner of the land with any buildings or structures of note.

1. Before the endorsement of plans, a Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan must clearly indicate that waste collection is to be via a private contractor, not Bayside City Council, and include:

1. Dimensions of storage waste areas. 2. Storm water drains in storage areas should be fitted with a litter trap.

1. Facilities for bin cleaning. 2. Method of waste and recyclables collection. 3. Types of waste for collection, including colour coding and labelling of bins. 4. Hours of waste and recyclables collection (to correspond with Bayside City Council Local Laws and EPA Noise Guidelines). 5. Method of hard waste collection. 6. Method of presentation of bins for waste collection. 7. Sufficient headroom within the basement to accommodate waste collection vehicles. 8. Sufficient turning circles for the waste collection vehicles to enter and exit the site in a forward direction.

1. Strategies for how the generation of waste and recyclables will be minimised.

1. Compliance with relevant policy, legislation and guidelines.

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. Before the commencement of works for each stage of development, a Construction Management Plan (CMP), to the satisfaction of the Responsible Authority, 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 and shall thereafter be complied with. The CMP must specify and deal with, but not be limited to the following as applicable:

1. A detailed schedule of works. 2. A traffic management plan for the site, including when or whether any access points would be required to be blocked, an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services, preferred routes for trucks delivering to the site, queuing/sequencing, excavation and swept-path diagrams.

1. The location for the parking of all construction vehicles and construction worker vehicles during construction.

1. Delivery of materials including times for loading/unloading, unloading points, expected frequency and details of where materials will be stored and how concrete pours would be managed. 2. Proposed traffic management signage indicating any inconvenience generated by construction. 3. Fully detailed plan indicating where construction hoardings would be located. 4. A waste management plan including the containment of waste on site: disposal of waste, stormwater treatment and on-site facilities for vehicle washing. 5. Containment of dust, dirt and mud within the site and method and frequency of clean up procedures in the event of build-up of matter outside the site. 6. Site security. 7. Public safety measures. 8. Construction times, noise and vibration controls.

1. Restoration of any Bayside City Council assets removed and/or damaged during construction.

1. Protection works necessary to road and other infrastructure (limited to an area reasonable proximate to the site). 2. Remediation of any damage to road and other infrastructure (limited to an area reasonably proximate to the site). 3. An emergency contact that is available for 24 hours per day for residents and the Responsible Authority in the event of relevant queries or problems experience. 4. Traffic management measures to comply with provisions of AS 1742.3-2009 Manual of uniform traffic control devices - Part 3: Traffic control devices for works on roads. 5. All contractors associated with the construction of the development must be made aware of the requirements of the Construction Management Plan. 6. Details of crane activities, if any.

1. Before the development starts, a Functional Layout Plan (FLP) for the porte-cochere must be submitted to and approved by the Roads Corporation (VicRoads). When approved by VicRoads, the FLP may be endorsed by the Responsible Authority and will then form part of the permit. The plans must be drawn to scale with dimensions and must be generally in accordance with the submitted plans and annotated as but modified to show:

1. The ingress and egress points for the porte-cochere increased in width to accommodate the turning path of an ambulance vehicle as it enters and exits the site to and from the kerbside southbound lane without interfering with the path of a tram. This is to be justified with the appropriate swept path diagrams. 2. Additional swept path analysis to demonstrate that an ambulance vehicle can achieve a safe and efficient right turn into the porte-cochere.

1. Details of appropriate signage/line marking etc reinforcing the one-way operation of the porte-cochere.
2. Prior to the commencement of the use or the occupation of the buildings or works hereby approved, any required access crossovers and any associated works must be constructed and available for use in accordance with the approved Functional Layout Plans, to the satisfaction of the Responsible Authority and at no cost to VicRoads or the Responsible Authority.
3. Vehicles must enter and exit the land in a forwards direction at all times.

1. By no later than the date the Responsible Authority is satisfied that the development is complete, vehicle egress from the basement to Cheeseman Avenue must be left turn only into Cheeseman Avenue, to the satisfaction of the Responsible Authority.

1. Finished floor level of the proposed development must be set no lower than 300mm above the applicable flood level at the location.
2. Setbacks shown from all property boundaries must be maintained as per plans submitted.
3. Entry apex to the basement must be set no lower than 300mm above the applicable flood level at the location.
4. Proposed basement must be tanked.
5. All open spaces must be set at natural surface level except minimal ramping to the basement and main entrance which is on the western property boundary (on Hawthorn Road).
6. Any proposed fencing within the property must be paling or of a 50% open style design.

1. No track, tram and overhead infrastructure must be damaged during the construction of the development. Any damage to public transport infrastructure must be rectified to the satisfaction of Public Transport Victoria at the full cost of the owner.
2. All reasonable steps must be taken to ensure that disruption to tram operation Long Hawthorn Road is kept to a minimum during the construction of the development. Foreseen disruptions to tram operations during construction and mitigation measures must be communicated to Yarra Trams and Public Transport Victoria no less than eight (8) weeks prior.
3. All reasonable steps must be taken to ensure that disruption to bus operation along both Hawthorn Road and Union Street are kept to a minimum during the construction of the development. Foreseen disruptions to bus operations and mitigation measures must be communicated to Public Transport Victoria no less than eight (8) weeks prior by telephoning 1800 800 007 or emailing customerservice@ptv.vic.gov.au.
4. The existing tram and bus stops, and associated infrastructure, on Union Street and Hawthorn Road must not be altered without the prior consent of Public Transport Victoria. Any alterations including temporary works or damage during construction must be rectified to the satisfaction of Public Transport Victoria and at the cost of the owner.

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

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

1. The use does not commence within six years of the date of this permit.

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

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

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] As a matter of record, these plans were prepared by Bates Smart Pty Ltd architects drawing nos. A01_000 Rev B dated "XX/02/18" or plot date 15/02/18, A02_000 Rev B dated "XX/02/18" or plot date 16/02/18, A02_001 Rev B dated "XX/02/18" or plot date 16/02/18, A02_002 Rev B dated "XX/02/18" or plot date 15/02/18, A02_003 Rev B dated "XX/02/18" or plot date 16/02/18, A02_000 Rev B dated "XX/02/18" or plot date 16/02/18, A02_001 Rev B dated "XX/02/18" or plot date 16/02/18, A02_002 Rev B dated "XX/02/18" or plot date 16/02/18, A02_003 Rev B dated "XX/02/18" or plot date 16/02/18, A02_004 Rev B dated "XX/02/18" or plot date 16/02/18, A02_005 Rev B dated "XX/02/18" or plot date 16/02/18, A02_B00 Rev C dated "XX/02/18" or plot date 15/02/18, A07_000 Rev A (sic B) dated 25/01/18 or plot date 20/02/18, A07_001 Rev A (sic B) dated 25/01/18 or plot date 20/02/18, A08_000 Rev A dated 18/08/17 or plot date 15/02/18. We record that some of these plans were added to or substituted at the request of the Council before it decided the application.

[3] As matter of record, these drawings were plans were prepared by Bates Smart Pty Ltd architects drawing nos. A02_000 & A02_B01 Rev D dated 19/10/18.

[4] These plans were not numbered or dated but we observe the staging details were generally in accordance with staging details in plans considered by the Council, being part of the Town Planning Design Report prepared by Bates Smart Pty Ltd and dated 16 February 2018 and tendered at the hearing as Exhibit A2. However, they are also substantially similar to plans prepared by Bates Smart Pty Ltd drawing nos. A02_B01 Rev C dated XX/02/18 and plot date 15/02/18 & A02_B01 Rev D dated 19/10/18 that found their way into the application set during the hearing. We are unsure if the Council had the first of these drawings when it decided the application.

[5] It is unnecessary to record the drawing reference numbers. They are included at the start of condition 1 of the permit in Appendix A to these reasons.

[6] The obligation to consider the Planning Policy Framework in the scheme and the purposes of the NRZ and design objectives of the DDO arise under various provisions of the scheme.

[7] Bayside Planning Scheme cl 71.02-3.

[8] Bayside Planning Scheme cl 21.02. The Council also drew our attention to its Bayside Housing Strategy (September 2012) that contained various provisions relating to these areas. As this is a reference or background document under clause 21.02 of the scheme, we have given some consideration to its provisions.

[9] Bayside Planning Scheme cl 21.03-1.

[10] Bayside Planning Scheme cl 43.02 sch 3 cl 1.0.

[11] Bayside Planning Scheme cl 32.09.

[12] Bayside Planning Scheme cl 15.01-1S & cl 15.01-2S.

[13] Bayside Planning Scheme cl 21.06-1.1 & cl 22.06.

[14] Other than land on the south side of Union Street, which is in character precinct D2.

[15] Bayside Planning Scheme cl 43.02 sch 3 cl 3.0 dot point 2.

[16] Bayside Planning Scheme cl 55 & cl 58.

[17] Bayside Planning Scheme cl 16.01-3S & 16.01-3R.

[18] Bayside Planning Scheme cl 16.01-1S.

[19] Bayside Planning Scheme cl 21.03.

[20] Bayside Housing Strategy 2012, p 56.

[21] Bayside Planning Scheme cl 22.07.

[22] Bayside Planning Scheme cl 22.07-3 'Preferred location'.

[23] LCM Calvary Health Care Pty Ltd v Glen Eira CC [2018] VCAT 655 [52].

[24] See eg LCM Calvary Health Care Pty Ltd v Glen Eira CC [2018] VCAT 655 [52].

[25] LCM Calvary Health Care Pty Ltd v Glen Eira CC [2018] VCAT 655 [52].

[26] LCM Calvary Health Care Pty Ltd v Glen Eira CC [2018] VCAT 655 [73].

[27] Mr Sheppard supported the general north-south orientation of the buildings and the east or west orientation of the units. Although this conflicts with the principles of effective passive solar design, we find the orientation acceptable because Stockland has committed to a 4-star Green Star Design and As Built and this is the acceptable standard under the Bayside Planning Scheme.

[28] Hansen Partnership, memorandum of advice dated 10 April 2018 (Exhibit C24).

[29] Bayside Planning Scheme cl 22.07.

[30] Bates Smart Pty Ltd, drawing nos. A05_000, A05_001, A05_002 & A05_003 all Rev 03 all dated 14 November 2018.

[31] Landscape Design Partnership, Landscape Proposal (February 2018) (20 pages, Exhibit A32) & Landscape Concept Plan and Landscape Indicative Soil Zones (drawing nos. 17-2231-TP02 & 17-2231-TP03 & 17-2231-TP04 all dated 19 February 2018).

[32] Sketch section prepared by CDA Design Group Pty Ltd, drawing no. SK01_P3 dated 3 December 2018 (Exhibit A70).

[33] See the plans prepared by Bates Smart Pty Ltd drawing A02 000 Rev D dated 25 October 2018 & drawing A02 B01 Rev D dated 19 October 2018.

[34] Although the basement as shown in the application plans would be reduced in area based on the increased setback from Cheeseman Avenue, Stockland has prepared the amended plans that show retention of the number of spaces and the other features. Ms Dunstan considered and is satisfied with those amended plans.

[35] Given the proximity of the subject land to the Principal Public Transport Network, the clause 52.06-5 parking requirement for a Retirement village is 1 space for each one-bedroom dwelling and 2 spaces for each two or three bedroom dwelling. It is unfortunate the requirement relates to 'dwellings' for the reasons set out in the answer to the question of law later in these reasons. However, we will apply, as Ms Dunstan did, the requirement to each independent living unit as a practical and sensible approach. As well, given we will require removal of, in effect, two two-bedroom units, the statutory requirement would be reduced to 243 spaces.

[36] The peak demand shortfall is effectively removed by our intention to remove, in effect, two two-bedroom units.

[37] Bayside Planning Scheme cl 22.07-3 Policy: Traffic and car parking.

[38] Bayside Planning Scheme cl 45.06-1.

[39] Bayside Planning Scheme cl 45.06-1.

[40] Bayside Planning Scheme cl 72.04.

[41] DCPO1 also provides a levy of $520 for 'non-residential development' but the application of this levy in this proceeding was not in contention.

[42] Bayside Planning Scheme cl 21.02 map 1.

[43] Bayside Planning Scheme cl 73.03.

[44] Bayside Planning Scheme cl 73.03.

[45] Casey CC v Blue Hills Residences Pty Ltd [2010] VCAT 797.

[46] Casey CC v Blue Hills Residences Pty Ltd [2010] VCAT 797 [32].

[47] Casey CC v Blue Hills Residences Pty Ltd [2010] VCAT 797 [15].

[48] Bayside Planning Scheme cl 73.03.

[49] Bayside Planning Scheme cl 73.03.

[50] Bayside Planning Scheme cl 73.03.

[51] The Sisters Windfarm Pty Ltd v Moyne Shire Council [2010] VSC 607.

[52] Interpretation of Legislation Act 1984 s 30.

[53] Bayside Planning Scheme cl 45.06-2.

[54] Bayside Planning Scheme cl 45.06 sch 1 cl 4.0. The DCP (at p 23) also refers to 'new' residential development and states it includes an extension to a dwelling or the replacement of a dwelling with a new dwelling.