1. Pursuant to section 60 of the Victorian Civil and Administrative Act 1998, the following person is joined as a party to the proceeding:

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

TP2.07 Revision C date 30/3/11 Detail Section West elevation

TP3.00 Revision B date 30/3/11 Water Sensitive Urban design

1. The decision of the Responsible Authority is set aside.
2. In permit application 0713/10 a permit is granted and directed to be issued for the land at 27 Macquarie Street, Prahran in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • The construction of a building and the construction and carrying out of works, use of the land for the purpose of dwellings and a reduction in the requirement for car parking.

Mr C Townshend SC and Mr D Scally of Best Hooper Solicitors. They called the following witnesses:

A visual amenity statement by Mr J Wilkinson was tabled, however Mr Wilkinson was not called.

Construction of a six storey building comprising 18, one and two bedroom dwellings. A basement car park is proposed with 12 parking spaces using car stackers.

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

Clause 43.02 Design and Development Overlay (DDO7).

Clause 34.02-4 Construct a building or construct or carry out works.

Clause 43.02-2 Construct a building or construct or carry out works.

Clause 52.06 -1 Reduce the number of car parking spaces required to be provided.

The site is located on the west side of Macquarie Street, between Greville Street and High Street. The site is located within the Prahran/South Yarra principal activity centre.

The site has a frontage of 12.82 m, a depth of 20.23m and an area of 268.9m2. A single storey dwelling currently occupies the site.

Abutting the site to the south is a three storey apartment building. To the west the site abuts a three storey building used for student housing. A two storey building abuts to the north. This building is currently used for commercial/community purposes. A council car park is located directly opposite the review site on the eastern side of Macquarie Street.

The character of the neighbourhood is best described as eclectic, highly urbanised and hard edged. Uses comprise a mix of residential and commercial. The height of buildings range from single to four storeys, and are typically three to four storeys.

VCAT Reference No. P3001/2010 AusGroup Property and Development Pty Ltd v Stonnington CC, 19 April, 2011.

1. Tatu Developments made an application to the Stonnington City Council for a permit to construct a seven storey building at 27 Macquarie Street, Prahran.
2. The Council gave notice of the application and received 12 objections. The Council failed to determine the application within the prescribed time and the applicant has now applied to the Tribunal for a decision on the application.
3. The applicant has circulated amended plans that reduce the height of the building to six storeys.
4. The Council has resolved that it opposes the grant of a permit on the following grounds:
   1. The proposed development and use of the land does not comply with the provisions of State and Local Planning Policy Framework, most specifically the Design and Development Overlay 7, Clause 22.02 Urban Design Policy, Clause 22.05 Residential Development in Commercial Areas Policy, Clause 22.09 Retail Centres Policy and Clause 22.19 Prahran, South Yarra and Windsor Activity Centre Policy in that it does respect the existing character which is identified as a limited change area.
   2. The proposed building height is excessive and would be dominating and overwhelming resulting in unreasonable visual bulk when viewed within the streetscape and surrounds.
   3. The upper level setbacks above the street wall height are minimal in conjunction with the overall building height and are contrary to the preferred setback pursuant to the Design and Development Overlay 7.
   4. The ground floor level does not respond to the individual character of the area in that it is raised above footpath level and does not comprise a commercial use in accordance with the purpose of the Business 2 Zone and the Local Planning Policy Framework.
5. As a result of the circulation of amended plans one objector has submitted a statement of grounds.
6. The principal issues in dispute in this matter focus on the height of the proposed building and the extent to which a six storey building achieves an acceptable response to the site's physical and strategic context. A related issue concerns the impact of the proposal on the amenity of the dwellings to the south.
7. Having considered the evidence and the submissions, and having inspected the site, I have concluded that the provisions and policies of the planning scheme support this proposal. I am satisfied that the height and scale of the building responds appropriately to the eclectic, hard edged and mixed character of this locality. The proposal's amenity impacts are acceptable in this neighbourhood context.
8. My reasons are set out below.

1. The Council's concerns about this application are primarily related to the six storey height of the proposed building which, in its submission, exceeds the height which would be acceptable having regard to the policies contained in Clause 22.19 of the planning scheme and the design objectives of DDO7[1].
2. The Council submits that the review site is located within an area designated in the planning scheme for Limited Change[2]. Within these areas DDO7 does not specify a preferred maximum building height. It is stated however that all applications within Limited Change Areas will be assessed based on the existing character of the area and against Clause 54 or 55 (as applicable) of the Stonnington Planning Scheme. While no preferred minimum street wall height is specified, the DDO7 does specify a zero building setback to the street, from ground level to a height of 12 m.
3. The Council submits that the prevailing scale of development in Macquarie Street is 3 to 4 storeys. The Council is content that this proposal would be acceptable up to a height of four storeys incorporating a zero street setback to Macquarrie Street, although I note that Ms Thompson did submit that some reduction in the height of the street wall is necessary. Ms Thompson submits however, that the additional two and one half storeys[3] above the street wall are not sufficiently recessed from the street wall[4] to achieve a design that reflects the existing scale and character of the neighbourhood. Consequently, Ms Thompson submits that the proposed building would assume a degree of visual prominence and bulk in the streetscape that is not consistent with the outcomes contemplated by the designation of this locality as a limited change area. Ms Thompson submits that the strategic framework of the planning scheme aims to direct developments of the type and scale of this proposal to areas identified in the Chapel Vision Structure Plan for more substantial change.
4. Ms Thompson also submits that the Council's Retail Centres policy at Clause 22.09 encourages development that enhances and maintains the identity and distinctive character of Stonnington's commercial areas. The site is categorised as part of a Group 4 centre that caters for local and everyday retail, office and service activities and needs of the surrounding area. Ms Thompson submits that the proposal's height and failure to provide an active, commercial street frontage are in conflict with the Retail Centres policy.
5. The extent to which this proposal responds to the existing character of the area must be considered in the context of the planning scheme's policies that seek to facilitate residential and commercial development in and around existing activity centres, especially those with good access to public transport. I agree with Mr Biasci's evidence that the site's location within a limited change area has the effect of requiring that the design of the building should respect the scale and form of existing development in Macquarie Street. However any interpretation of the limited change area policies which lead to a conclusion that only a four storey building would be acceptable on this site, is erroneous.
6. The weight to be given to the interim controls and policies of DDO7 and Clause 22.19, and the application of these to individual sites has been recently considered by the Tribunal[5] in a case involving an application for an eight storey building on a site in an area designated for moderate change. With respect to the notion of moderate change in a principal activity centre context, the Tribunal commented as follows:

We are persuaded that whilst the proposal is approximately 6 metres higher than the preferred height, and has lesser setbacks, it would be generally consistent with the planning policy framework. We think the matter of heights and setbacks should form part of our considerations, but these are to be balanced with the many other policy directions set out in the planning scheme.

We conclude this development complies with the strategic directions of the entirety of planning policy. It is clear to us the Prahran/South Yarra Principal Activity Centre is identified as the preferred location for change, and compared to most places, the extent of change is to be substantial. This is becoming evident when one visits Toorak Road and Chapel Street and observes the now numerous multi storey buildings completed and under construction. It is notable many of these buildings exceed 10 storeys. Prahran and South Yarra are being transformed from a former niche retail shopping centre bounded by older industrial uses to an intensive high rise precinct similar to Docklands, Southbank and St Kilda Road. We think the current transformation largely arises from State and local planning policies.

This transformation provides a context to assess 'moderate change'. In our view, moderate change in this area can be seen to include buildings that might be regarded as substantial in another context. However, a proposal such as this, being eight storeys, is modest in form and scale relative to the extent of development in the Forrest Hill precinct and other places identified for substantial change.

1. I agree with the Tribunal's findings on this point. The findings are equally applicable to a consideration of an application for a six storey building in a minimal change area where the existing prevailing scale of development is 3 to 4 storeys.
2. I also agree with the Tribunal's findings about the interim nature of the controls. The Tribunal commented that the controls are still to be reviewed through a formal amendment process and that this process may lead to some changes. Consequently, a reliance on the prescriptive requirements in the controls should be resisted, with greater weight being given to strategic directions and design principles[6].
3. I am satisfied that the proposal before me does respond in an appropriate manner to the existing character of Macquarie Street. The starting point for my assessment is to define or at least describe the existing character of this area, and to this end I am in complete agreement with the description provided to me by Mr Sheppard in his evidence:

The existing built form character of this part of Macquarie Street is relatively mixed. It comprises a diverse range of built forms ranging from single storey dwellings to 4-5 storey apartment buildings. The prevailing built form scale is of three to four storey buildings that present a hard edge to the street. There is a predominance of relatively inactive ground floor street frontages comprising car park entries, garage doors and blank walls[7].

1. The proposed development's response to this context incorporates a four storey street wall which, although higher than the preferred height specified in DDO7, is of a similar scale to existing development in the street. The 12.0 m preferred height for a street wall is a discretionary control and it applies throughout the activity centre. Its prescriptive application in Macquarie Street is not appropriate.
2. The two storeys above the street wall represent a modest increase in height to the prevailing scale of development in Macquarie Street. This outcome is contemplated by and consistent with the strategic direction provided by the planning scheme's policy framework. The two storeys above the street wall are recessed, albeit not in accordance with the preferred minimum street setback specified in DDO7. The 6.0 m preferred setback applies throughout the activity centre including in streetscapes which exhibit highly valued heritage and character values. Having regard to the eclectic, hard edged character of Macquarie Street, the lack of any recognisable heritage or character qualities, and combined with the narrowness of the street, the degree to which the upper levels are recessed is acceptable.
3. I do not share the Council's concerns about the lack of active street frontage and elevated entry, in this location. I acknowledge that the provision of a commercial street frontage is typically desirable, however on this site it could only be achieved at the expense of the basement car park. Ms Thompson submits that alternative parking arrangements (e.g. a car lift or a total waiver of parking) could enable the consideration of a different design solution incorporating an active street frontage.
4. There may be circumstances where the approach advocated by Ms Thompson would be critical to the achievement of an acceptable outcome. Those circumstances do not apply here. As I have recorded above, the provision of 18 dwellings in a well designed, six storey building is an outcome strongly supported by the policy framework and provisions of the planning scheme. The lack of an active street frontage to Macquarie Street is a relatively minor consideration on this site, especially having regard to the predominance of inactive ground floor street frontages comprising car park entries, garage doors and blank walls that exist in Macquarie Street.

1. Ms Wilson occupies an apartment that abuts the review site to the south. I have addressed above a number of the concerns expressed by Ms Wilson regarding the height and bulk of the proposal. Additional matters raised focussed on traffic and car parking, and the impact of the proposal on the amenity of Ms Wilson's apartment.
2. Mr Mensforth provided expert traffic evidence and it was his conclusion that the provision of car parking is acceptable in this highly urbanised context and having regard to the site's proximity to a range of public transport options. Mr Mensforth was also satisfied with the access arrangements and the internal configuration of the car park. I note that the Council's traffic engineers did not raise any substantive objections to the proposal.
3. Ms Wilson's primary concern is about the loss of day light to the balcony of her apartment, resulting from the on boundary construction of the southern wall of the proposed building. The southern wall would directly abut the northern edge of the balcony. The northern edge of the balcony has an opening that currently provides a level of amenity in the form of an oblique outlook and some daylight. The amenity deriving from the opening in the balcony will be lost because of the construction of the proposed development, but in this neighbourhood context, I do not regard that impact as unacceptable. The apartment living areas and balcony are oriented to the west. The outlook to the west and the consequent access to daylight will be unaffected by the proposed building. Having regard to the zoning of the land, the site's location within a principal activity centre, and the limited adverse impact resulting from the construction of the proposal, I am satisfied that the proposal's amenity impacts are acceptable.

1. It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be set aside and a permit be granted.
2. In deciding the conditions to be included on the permit I have had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons

• The construction of a building and the construction and carrying out of works, use of the land for the purpose of dwellings and a reduction in the requirement for car parking

1. Before the commencement of the development, three (3) copies of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the plans retained substituted by the Victorian Civil and Administrative Tribunal at the hearing on 4 May, 2011, but modified to show:

1. An updated schedule of construction materials, external finishes and colours, including colour samples in a form that can be endorsed and held on file, which gives specific operational details of the facade screen and openings. 2. Rear setbacks nominated on the fifth floor plan TP1.06 Rev C.

1. Incremental front and rear setbacks nominated on the roof plan TP1.08 Rev C and north elevation TP2.01 Rev C.

1. TP2.05 Rev D updated or a longitudinal section drawing submitted to show all proposed grades, all length of grades, all RL levels at change of grade from the centreline of Macquarie Street to the point of vehicle entry and into the parking area in accordance with the relevant Australian Standard or to the satisfaction of the Responsible Authority. 2. The basement plan to nominate the dimensions of the available platform width for car spaces within the car stackers such that they are in accordance with the relevant Australian Standard or otherwise to the satisfaction of the Responsible Authority. 3. The basement plan to include notations which nominates the use of the Wohr Parklift 413 'comfort' type car stacker model or other specific model to the satisfaction of the Responsible Authority. 4. Location of all mechanical plant and equipment including, but not limited to, lift overruns, flues, exhausts and air-conditioning units as applicable. 5. Any consequential changes required as a result of submitting documents to satisfy conditions in this permit.

All to the satisfaction of the Responsible Authority.

1. The plans endorsed to accompany the permit must not be amended without the written consent of the Responsible Authority.
2. Prior to the commencement of development, a Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan must include:

1. Dimensions of waste areas 2. The number of bins to be provided

1. Hours of waste and recyclables collection NB. These should correspond with our Local Laws 2. Method of presentation of bins for waste collection 3. Strategies for how the generation of waste and recyclables from the development will be minimised

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 development, an updated Environmentally Sustainable Design Report (ESD report) must be submitted to the satisfaction of the responsible authority. The ESD report must be generally in accordance with the material submitted with the planning permit application and report prepared by Floyd Energy dated 7 October 2010 and must address the following:

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

1. Identify relevant statutory obligations; strategic or other documented sustainability targets or performance standards. 2. Document the means by which the appropriate target or performance will be achieved. 3. Identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring. 4. Demonstrate that the design elements, technologies and operational practices that comprise the ESD management plan can be maintained over time.
2. Prior to the commencement of development the applicant must provide an updated Water Sensitive Urban Design Response addressing the Application Requirements of the draft Stormwater Management (Water Sensitive Urban Design) Policy to the satisfaction of the Responsible Authority. The response must indicate the development meets best practice in accordance with the policy.
3. Prior to the commencement of works, a preliminary environmental site assessment is to be prepared by a suitably qualified environmental professional. The environmental site assessment should include:
   1. A preliminary review of the site history, including known activities or the location of works that may have had the potential to cause contamination of the land, and including anything known about the likelihood and significance of any contamination on the land;
   2. Confirmation that there is nothing known from the site history or its potential contamination that is likely to prevent the proposed development and use of the land.
4. A report for the legal point of discharge must be obtained from Council and a drainage design for the development must be prepared by a suitably qualified Engineer in accordance with that report prior to a building permit being issued. The drainage must be constructed in accordance with the Engineer's design.
5. All plant and equipment (including air-conditioning units) shall be located or screened so as to minimise visibility from any of the surrounding footpaths and from overhead views and shall be baffled so as to minimise the emission of unreasonable noise to the environment in accordance with Section 48A of the Environment Protection Act 1970 to the satisfaction of the Responsible Authority. Ventilation systems must be designed and installed in accordance with relevant Australian Standards.
6. Equipment, services, architectural features or structures of any kind, including telecommunication facilities, other than those shown on the endorsed plans must not be located above the roof level of the building without the written consent of the Responsible Authority.
7. Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.
8. All services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
9. Prior to occupation, areas set-aside for parked vehicles and access lanes as shown on the endorsed plans must be constructed to the satisfaction of the Responsible Authority and:

1. Constructed to the satisfaction of the Responsible Authority. 2. Properly formed to such levels that they can be used in accordance with the plans.

1. Surfaced with an all-weather sealcoat or surfaced with crushed rock or gravel to the satisfaction of the Responsible Authority.

1. Drained and maintained to the satisfaction of the Responsible Authority. 2. Line-marked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority. Parking areas and access lanes must be kept available for these purposes at all times.
2. The vehicular access must be designed or the building must be altered so as to ensure that the existing footpath level at the property boundary is retained or any change to the level does not increase the risk of inundation of the property by any change to drainage flows in Maquarrie Street. The detailed design of the access is to include a report prepared by a suitably qualified expert and address drainage implications all to the satisfaction of the responsible authority
3. Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.
4. This permit will expire if 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 four years of the date of this permit.

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

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

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

[1] Prahran, South Yarra and Windsor Activity Centre Policy, included in the planning scheme via Amendment C78 on 5 November 2011. The Amendment also introduced DDO7 into the planning scheme. Both the policy and the DDO7 have been introduced on an interim basis (expiry on 31 October, 2012) and are intended to give effect to the Chapel Vision Activity Centre Structure Plan.

[2] Clause 2.1 of Schedule 7 to the DDO defines a limited change area as: "......the remaining areas not in another identified change area where there is a mixed existing character and where limited change can be accommodated in accordance with the preferred future character of the area".

[3] Including the ground floor which is elevated 11.6m above footpath level.

[4] Table 1 to DDO7 specifies a preferred street setback of 6 m for any part of the building which exceeds 12 m. The proposal incorporates a setback of 1.9 m at the fourth floor with a terrace balustrade extending to the front boundary, and a 3.6 m setback at the fifth floor with a terrace balustrade extending into that setback.

[5] VCAT Reference No. P3001/2010 AusGroup Property and Development Pty Ltd v Stonnington CC, 19 April, 2011.

[6] I note that this approach is consistent with the approach outlined in the Explanatory Report to Amendment C78. Mr Biasci in his evidence also referred to the Council officer's report to the Council recommending the introduction of interim controls via Amendment C78. In the report it was acknowledged that outcomes and issues will need to be managed on a case by case basis during the life of the interim controls.

[7] Statement of Evidence by Mark Sheppard, page 20.