1. At the conclusion of the hearing I announced to the parties that, having considered all of the material, I had decided to grant a conditional planning permit.
2. I explained my reasons for this as follows.
3. Despite the lack of direction in the Boroondara Planning Scheme, it would be difficult to find a proposal which had as much strategic support as this one has. Quite apart from its compliance with state policies on promoting density increases astride public transport corridors and around activity centres, there is also an emerging strong degree of local support through the initial work of Council around its draft Balwyn Structure Plan. I note that Council's strategic planning advice in respect of this application was that this immediate area is likely to be redeveloped and it could even be rezoned to a Mixed Use or Business 2 zone. Moreover, heights of up to six storeys might be contemplated. While I hasten to add that none of these directions are yet adopted, they serve to indicate that the site is within an area likely to change for more intense development in the near future.
4. Recent approvals to the west of the site have entrenched this likely change with permits issuing for multi level unit developments of up to four storeys on Whitehorse Road.
5. Approval of multi unit development on a tramline and adjoining a prosperous activity centre with a full range of retail, entertainment, community and open space facilities makes perfect planning sense. If opportunities like this are not to be taken in a city that is now nudging four million people and growing, then there will inevitably be pressures brought to bear in more sensitive residential areas where Council (justifiably) wants to maintain these neighbourhoods for character, amenity or heritage reasons.
6. I do not think that this proposal would have been appropriate on all sites within Boroondara, but it is ideally located amidst the prosperous emerging Balwyn Activity Centre.
7. The design of the building is, I think, not only contemporary against some rather bland buildings to the east and north, but it is also innovative and very attractive. It is very well articulated with an admirably wide pallet of materials and finishes. I am particularly impressed by its vertical garden 'green wall' which wraps around parts of the front and side. The design will capture surface runoff into rainwater tanks in the basement, and the eaves, louvres and shutters have been applied to temper adverse weather conditions. It has many admirable 'ESD' attributes.
8. Despite not being a requirement, the proposal satisfies all of the relevant ResCode standards and objectives which is indicative of a well thought out and site responsive design. There are no issues with overlooking or overshadowing (again indicative of a respectful design) while height and the front setback both comply with relevant controls.
9. In a streetscape sense, and because it is so 'cut into' the site, the building will compare in height with its neighbourhood to the east, but will contrast strongly with it in terms of a landscape front setback with canopy trees and a modulated façade with a variety of materials, colours and finishes.
10. In terms of landscaping, I note that the planting of canopy trees in the front and the introduction of the green vertical wall will complement the building delivering a positive outcome from the public realm. I agree with Ms Heggen that the building could be further softened to the south (rear) by the introduction of two canopy trees in the courtyard of Unit 4.
11. I also agree with Ms Heggen that Units 2 and 3 are a 'bit tight' and that they should be combined which has the added advantages of extra private open space as well as the removal from the west boundary by one metre of proposed terraces.
12. The proposal provides safe access and sufficient car parking, and the access arrangements have been modified in accordance with VicRoads requirements. The provision of a passing bay at the front of the site enables safe access in a forward direction and will avoid any confusion when cars enter and leave at the same time. This passing bay avoids the need for any mechanical devices.
13. There is a sufficient degree of on-site car parking with all basement spaces able to enter and leave in a forward direction. With the inclusion of the two extra canopy trees to the south there will be a reduction in the length of the basement necessitating the loss of two car spaces but this is compensated for by the reduction in the number of units to eleven.
14. I am satisfied that the amenity of residents on all sides is protected by the design and especially by its attention to privacy screens, planter boxes and fencing. While Ms Heggen suggested that a proposed 0.7 metre high trellis on the south boundary atop a 1.9 metre wall would be superfluous, especially if canopy trees are installed, I think that for residents on both sides of this fence the trellis could be important and I will require that it be retained. There was also discussion about the need for the vertical louvers at the front of the building but as noted above, I find the appearance of the building very attractive and I support the retention of this design feature.
15. I compliment Council on their consideration of the end users of Unit 4 as all too often it is only external amenity impacts that attract all the attention. Council were rightly concerned with the internal amenity of this unit which is both south facing and predominantly submerged below the natural ground level. However, I am satisfied that the design will produce an 'acceptable outcome' for the end users. One of the advantages of cutting the building so far into the site is that it keeps the building low and reduces offsite impacts. Unit 4 is very spacious (inside and out) with over 80 square metres in terraces wrapping around three sides of the unit. It also has floor to ceiling windows to allow daylight penetration. While the unit will only permit minimal direct sunlight I think that it will still appeal to some people as it has an 'enclosed courtyard' feel which will be attractive to those who look for peace, quiet and a degree of safety.

When tested against the suite of State and local planning policies affecting the site there are several positive aspects to this proposal. The site has frontage to a main road and is located within a neighbourhood activity centre. It has good access to public transport, community services and facilities and is within a Residential 1 Zone. It is unencumbered by planning overlays and is located opposite land zoned and developed for commercial purposes. It is also the case that the existing dwelling and vegetation on the site have no significance.

In respect to all the above matters, the starting point must therefore be that a higher density residential development can be contemplated on the land.

1. Council then proceeded to reject the application on issues of 'fine detail' dealing with landscaping, internal amenity and limited external impacts. While I acknowledge that all of these issues are relevant, I am satisfied that they are resolvable via some relatively minor adjusting to what is otherwise an excellent design response to a site in an area of change, on a public transport route and within a prosperous activity centre.
2. It is directed that a conditional planning permit be issued.

In permit application No. P3585/2008 a permit is granted and directed to be issued for the land at 204 Whitehorse Road, Balwyn for the development of the eleven (11) dwellings, a reduction in car parking requirements and the alteration of access to a Road Zone Category 1.

1. Before the development starts, amended plans must be submitted to the satisfaction of the responsible authority and they will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three (3) copies provided and they must be substantially in accordance with the advertised plans but modified to show the details specified in the plans of Neil Architects (Drawing Nos. TP3C, 4B, 5B,6B,7B,8B,9B,12A,16A and 17A) dated 15 March 2009:
   1. the capacity of the basement water tanks which are to be of a sufficient size to cater for the irrigation needs of the proposed landscaping, including the green-wall vertical garden;
   2. a landscape plan in accordance with condition 3 of this permit.

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 Boroondara Planning Scheme specifies that a permit is not required) without the prior written consent of the responsible authority.

1. A landscape plan 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 form part of this permit. The plans must be drawn to scale with dimensions by a landscape architect or suitably qualified and experienced person or firm and three copies must be provided. The plans must include the following information:
   1. a survey (including botanical names) of all existing vegetation to be retained andor removed;
   2. details of surface finishes of pathways and driveways;
   3. a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant;
   4. landscaping and planting within all open areas of the site and the green-wall vertical garden;
   5. planting required by any other condition of this permit;
   6. at least three canopy trees in the front setback and two in the rear setback. The trees must be of a species that can grow to between 8-10 metres in height at maturity;
   7. details of the ongoing operation and maintenance of the green-wall vertical garden to be provided.

1. Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the responsible authority prior to the occupation of the development.

1. All landscaping works shown on the endorsed landscape plans, including the green-wall vertical garden, must be maintained and any dead, diseased or damaged plant replaced, all to the satisfaction of the responsible authority.

1. The land must be drained to the satisfaction of the responsible authority and all drainage works must be completed prior to the occupation of the building.

1. Stormwater drains must be connected to a legal point of discharge approved by the responsible authority. Drainage connections within a road reserve must be to Council's standards. No such works are permitted to commence unless a Supervision Permit is first obtained from the responsible authority.

1. Before the use starts or any building is occupied, area/s set aside for car parking, access lanes and driveways shown on the endorsed plans must be:
   1. constructed;
   2. formed to such levels and properly drained so that they can be used in accordance with the endorsed plans;
   3. surfaced with an all weather seal coat;
   4. line marked to indicate each car space;
   5. clearly marked to show the direction of traffic along the access lanes and driveways;

1. External driveways and parking areas must be constructed with dark coloured concrete or bitumen, coloured patterned concrete, interlocking paving blocks or brick paving to the satisfaction of the responsible authority.

1. Car spaces must not be used for any other purpose other than the parking of vehicles, to the satisfaction of the responsible authority.

1. Any new vehicle crossover or modification to an existing vehicle crossover must be constructed in accordance with Council's standard details. No such works are permitted to commence unless a Supervision Permit is first obtained from the responsible authority.

1. All outdoor lighting must be designed, baffled and located to prevent light from the site causing any detriment to the locality, to the satisfaction of the responsible authority.

1. Waste management arrangements are to be in accordance with the Waste Management Plan dated 21 May 2008, to the satisfaction of the responsible authority.

1. All bins and receptacles must be screened from view and be maintained in a clean and tidy condition and free from offensive odour.

1. All works including earthworks, demolition and construction activity associated with the approved development is to be limited to the following hours, unless with the prior written consent of the responsible authority:
   • Monday to Friday: 7:00am to 7:00pm
   • Saturday: 9:00am to 5:00pm
   • Sunday and Public Holidays: No construction

1. Prior to the commencement of any site works whatsoever, the owner must submit a Construction Management Plan to the responsible authority for approval. No works are permitted to occur until the Plan has been approved in writing by the responsible authority. Once approved, the Construction Management Plan will be endorsed to form part of this permit and must be implemented to the satisfaction of the responsible authority. The Plan must be to the satisfaction of the responsible authority and must provide details of the following:
   1. hours for construction activity in accordance with any other condition of this permit;
   2. measures to control noise, dust, water and sediment laden runoff;
   3. the location and design of a vehicle washdown bay for construction vehicles on the site;
   4. the location of parking areas for construction and subcontractors' vehicles on the site, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises and traffic flows. Any basement carpark on the land must be made available for use by sub-contractors/tradespersons upon completion of such areas, without delay;
   5. measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan;
   6. contact details of key construction site staff;
   7. the location of any site sheds and the like;
   8. measures to ensure that tram services along Whitehorse Road are not disrupted; and
   9. any other relevant matters.

1. All pipes (except downpipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the responsible authority.

1. Reticulated electricity must be provided underground to the subject land and all buildings on the land, to the satisfaction of the responsible authority.

1. This permit will expire if:
   1. the development does not start within two (2) years of the issue date of this permit; or
   2. the development is not completed within four (4) years of the issue date of this permit.

The responsible authority may extend the times referred to if a request is made in writing before the permit expires or within the three (3) months afterwards.