Plans prepared by Interlandi Mantesso Architects drawing numbers TP3.12 Rev. E, TP4.01 Rev. F, TP4.02 Rev J, TP4.03 Rev. F, TP4.04 Rev F, TP4.05 Rev F, TP4.06 Rev F, TP4.07 Rev F, TP4.08, TP5.01 Rev F, TP5.02 Rev G, TP5.03 Rev F, TP6.01 Rev F, TP6.02 Rev F.

1. Conditions in the permit are amended as follows:
   • (a) Conditions 1(hh) is deleted.
   • (b) A new condition 1 is included as follows:

Amend the basement 3 level plan to note that the car stacker model to be installed will be the Klaus 4300-200

The car stackers shown on the plans required by condition 1 of this permit must be installed in accordance with the endorsed plans before the use starts or building occupied.

The car stackers shown on the plans required by condition 1 of this permit must be routinely serviced and maintained to the satisfaction of the responsible authority to ensure satisfactory access to all car spaces and to prevent any adverse effect on adjoining land by the emission of noise.

(e) Conditions in the permit are renumbered accordingly.

1. Plans endorsed under the permit are amended and the responsible authority is directed to endorse the following amended plans:

Plans prepared by Interlandi Mantesso Architects drawing numbers TP3.12 Rev. E, TP4.01 Rev. F, TP4.02 Rev J, TP4.03 Rev. F, TP4.04 Rev F, TP4.05 Rev F, TP4.06 Rev F, TP4.07 Rev F, TP4.08, TP5.01 Rev F, TP5.02 Rev G, TP5.03 Rev F, TP6.01 Rev F, TP6.02 Rev F.

1. The responsible authority is directed to amend the permit and issue an amended permit to the owner of the subject land pursuant to section 91 of the Planning and Environment Act 1987.

Mr A Finanzio SC and Mr A Walker of counsel appeared by direct brief.

• Mr M Negri, town planner
• Mr S Hunt, traffic engineer

Application to amend a permit to allow for two additional storeys to a building previously approved at 10 storeys. Other consequential changes are also proposed.

Application under section 87A of the Planning and Environment Act 1987 - to amend a permit.

Clause 43.02: Design and Development Overlay (DDO17)

The review site is located on the south side of Lilydale Grove. It has a frontage of 21.68m, a depth of 40.84m, and an area of 888m2. The site is vacant except that preliminary construction works associated with the approved building are evident.

A single storey dwelling abuts to the site to the east. A permit for a 9 storey building has been issued for this site.

A lane runs along the site's western boundary and to the west of the lane is a single storey dwelling. That site is the subject of an application for an 11 storey building.

The lane continues along the south (rear) boundary of the site. A car dealership occupies the site to the south of the lane, with a frontage to Burwood Highway and this site is the subject of a permit application for a 9 storey building.

An elevated railway line is located on the north side of Lilydale Grove.

More broadly, the site is proximate to the Auburn neighbourhood activity centre and the Auburn railway station. The site forms part of the Burwood/Camberwell Road commercial corridor. Multi-level residential developments have been constructed in the general proximity of the review site in Lilydale Grove, Montrose Street, Albert Street and Burwood Road.

1. This is an application to amend a permit that allows the construction of a ten storey building comprising 83 dwellings and a shop at 18-22 Lilydale Grove, Hawthorn East. It is proposed to amend the permit to allow the number of storeys to be increased by 2, the number of dwellings to be increased by 6, with a number of other consequential and detailed design changes also proposed.
2. While the Council does not oppose some of the proposed amendments, it does oppose those amendments that increase the height of the building and the increase in the number of levels. The Council advised the Tribunal that it opposed the amendment application on the following grounds:
   1. The development would fail to satisfy the intent and objectives of Clause 15 (Urban design principles) and Design Guidelines for Higher Density Residential Development with regard to equitable access to outlook and daylight, enjoyment of the public realm, and architectural quality.
   2. The requirements of DDO17 in relation to built form above the maximum overall building height have not been met for the following reasons:
      • The development as an entire entity does not achieve the design objectives of Schedule 17 and the relevant policies;
      • The development as an entire entity does not achieve an exemplary quality design that would make a positive contribution to the character of the neighbourhood;
      • The additional height would not result in sufficient specific design benefits;
      • The additional height would have an adverse impact on the public realm and the amenity of adjoining and nearby properties.
   3. The development fails to satisfy the intent and objectives of Clause 58 (Apartment Developments).
3. In relation to Ground 3, the validity of that ground was referred to a legal member of the Tribunal to determine whether Clause 58 is applicable to an application brought under section 87A. By Order dated 25 May 2017[2], Deputy President Gibson determined that the provisions of Clause 58 do not apply to an application to amend an existing permit brought in the Tribunal's original jurisdiction, and the provisions of Clause 58 are not at all relevant in the assessment of whether a permit should be amended under section 87A.
4. In light of the Deputy President's ruling, the Council did not pursue ground no. 3.
5. The objector to the application owns the land to the west of the review site and (at the time of the hearing) that property is the subject to a planning permit application for a 9 storey building. The objector does not oppose the amendment application but seeks design changes aimed at increasing light to 7 dwellings that will have an interface to the review site.
6. Having considered the submissions and the evidence and having inspected the review site and the surrounding area on two occasions, I have concluded that the proposed amendment to the existing permit is acceptable and I have Ordered that the permit be amended.
7. My reasons are set out below.

1. The Council issued planning permit PP13/003311 in September 2013. The permit allowed the construction of 83 dwellings in a ten storey building which also included a ground level shop. The permit was subject to 29 conditions. An Application to review some of those conditions was heard by the Tribunal in January 2014[3]. The conditions in dispute at that time broadly required the seventh, eighth and ninth levels of the building to be setback 4.5m, together with a series of internal layout changes.
2. The Tribunal deleted two of the disputed conditions (including the condition requiring increased setbacks at the upper levels of the building). The condition requiring the conversion of "studies" into study alcoves was retained.
3. At the time that the Council granted the permit, a Design and Development Overlay (DDO20) applied to the review site. Under the provisions of DDO20 a maximum mandatory height of 30m applied. The permit issued by the Council allowed the building to reach the mandatory height.
4. Since the grant of the permit, the planning scheme has been amended to remove the mandatory height and under a new Design and Development Overlay (DDO17) a discretion exists to exceed the 30m maximum height subject to an applicant being able to demonstrate that the proposal achieves design objectives and other specified criteria.
5. The replacement of DDO20 with DDO17 and the introduction of a discretionary rather than mandatory height limit has occurred in the context of a changing policy framework that has in broad terms, reinforced longstanding policy objectives for metropolitan Melbourne that emphasise the need for increased residential densities and housing diversity in suitable locations[4]. The removal of the mandatory height restriction as it applies to this location represents one of a series of policy responses aimed at facilitating the provision of increased densities and housing diversity in selected locations. These locations include land in and around activity centres, land zoned Mixed Use, Residential Growth or Commercial 1 zones. The review site fulfils a number of those criteria.
6. The explanatory report for planning scheme amendment C255 that introduced DDO17 commented with respect to the introduction of discretionary rather than mandatory height as follows:

The amendment provides discretionary overall building heights for Boroondara's commercial corridors to encourage development at a scale which corresponds to the strategic role of the corridors, while retaining mandatory street wall heights in order to ensure the existing streetscape of the corridors are maintained and enhanced.

The amendment is consistent with initiative 4.2.2 of Plan Melbourne as it will protect Boroondara's neighbourhood centres while providing more flexibility in the design of buildings within the larger and less constrained commercial corridors.

IS THE AMENDMENT TO THE PERMIT ACCEPTABLE HAVING REGARD TO THE PROVISIONS OF DDO17?

1. The most prominent element of the proposed amendment application is for an additional two storeys above the ten storeys previously approved. Additional consequential and detailed changes include:
   • The number of dwellings is increased from 83 to 89.
   • Alteration to the configuration of dwellings on level 9, resulting in the number of dwellings at that level being reduced from 7 to 5. The floor to floor heights at each level are increased.
   • An increase in the number of residential car spaces from 76 to 85. Two 5 bay car shuffler systems are proposed in basement 3, with a reconfiguration of resident car parking more generally. Resident visitor parking spaces is increased by 1, from 4 to 5.
   • The dispensation for car parking under Clause 52.06 is greater than that previously approved.
   • Ramp grades and finished floor levels at ground level and within the basement are amended.
   • The size of the rooftop terrace is increased.
2. The additional height and number of levels is achieved by duplicating the floor plan of the ninth level to create a new level 10 with a further floor added as level 11. Proposed level 11 has a slightly reduced footprint from the levels below and provides for three relatively large 3 bedroom apartments. The two additional levels adopt the same detailing, fenestration and materiality as the levels below.
3. The Council submits that its approval of the original 10 storey building was contingent on the imposition of permit conditions that required among other things, increased setbacks at the upper levels and a series of internal rearrangements. Because most of those conditions were found by the Tribunal to be unnecessary and were deleted from the permit, the Council submits that the overall visual quality of the approved building and the impact of the building on the equitable development opportunities of adjoining sites have not been adequately resolved. In that context the Council now submits that the extension of two additional levels exacerbates its concerns about the form of the approved building. In particular, the Council submits that the proposal is not acceptable in this case because the criteria for applications exceeding the preferred maximum height under DDO17 are not met. Clause 2.0 of DDO17 states that where the maximum height is proposed to be exceeded, the applicant is required to demonstrate that all of the following would be satisfied:
   • The proposed development would achieve the design objectives of this schedule and relevant policy and provisions of this planning scheme.
   • The development is of an exemplary quality design that would make a positive contribution to the character of the neighbourhood.
   • The additional height would:
     • result in specific design benefits, and
     • not have an adverse impact on heritage values, the public realm or the amenity of adjoining properties.
4. The design objectives of DDO17 are:
   • To ensure the height and setbacks of development enhances the established streetscape and commercial character of the corridor.
   • To achieve innovative, high quality architectural design that makes efficient use of land whilst enhancing the appearance and strengthening the identity of the commercial corridors.
   • To ensure appropriate development that is complementary to the existing neighbourhood character and has regard to adjoining residential amenity.
   • To ensure development respects and enhances identified heritage buildings and precincts.
5. The Council provided a detailed summary of the differences between the approved building and the amendment application. In that analysis, the Council emphasised the continuation of the building footprint and architectural expression of the approved development to the proposed additional levels. The Council submits that the additional levels do not enhance the established streetscape and commercial character of the corridor, and does not enhance the skyline of the precinct. It is the Council's submission that the building in its totality including the additional levels, does not qualify as exemplary quality design, and does not result in identifiable specific design benefits.
6. I am satisfied that the proposed amendments are acceptable. The proposed amendments address each of the matters that need to be considered in the assessment of a proposal to exceed the maximum height. I have reached this conclusion for the following reasons:
   • The additional height of the building and the small increase in intensity of the use (6 additional dwellings) represents an appropriate response to the applicable policy framework as it now exists and the consequent removal of the mandatory height control. The granting of the permit for the 10 storey building is confirmation that a building of that scale and form was an acceptable response to the planning scheme provisions applying at that time. The proposed extrusion of two additional levels in a form that largely replicates that of the approved building has no significant adverse impact on the contribution the building makes to the character of the neighbourhood and commercial character of the corridor.
   • The quality of the design of the building is unaffected in any significant way because of the additional two levels. The maximum street wall height, the purpose of which is to ensure the streetscape of the corridors are enhanced, is maintained. The materials and finishes incorporated in the original approval are replicated, thus contributing to a cohesive architectural expression. The articulation and visual interest of the approved building is in no way adversely affected by the additional two levels. Both the approved building and the building reflected in the amended proposal have no impact on heritage buildings. The ground level continues to interact well with the public domain at ground level.
   • The consideration of "specific design benefits" as a criteria to justify an exceedance of the maximum height is not especially helpful given the lack of specificity in the planning scheme about the term's intended purpose. I agree with the Applicant's submission that "specific design benefits" is a nebulous concept. In the absence of any articulation around what is intended to be achieved by reference to specific design benefits, reliance on it as a meaningful criteria to assess the acceptability of a proposal exceeding a maximum height is therefore questionable. In any event, this is not a case in which any notion of specific design benefits is needed to justify additional height because the building achieves a built form that is consistent with the outcomes encouraged by the applicable policy framework and the design objectives of DDO17.

1. The Council raised concerns that the design of the additional two levels has not had sufficient regard for the nearby residential amenity.
2. The review site is located within an area undergoing significant levels of redevelopment in accordance with the planning scheme provisions including the policy framework relating to the site's designation as part of a commercial corridor, the Commercial 1 zoning and the application of DDO17. Within the area generally, multi-level residential developments have been constructed in Lilydale Grove, Montrose Street, Albert Street and Burwood Road.
3. During the hearing, I was provided with details of approved and proposed developments within the immediate vicinity of the review site. These developments include:
   • An approved 9 storey building comprising 15 dwellings at 24 Lilydale Grove abutting the review site to the east. There is a permit for this development and plans were endorsed under that permit in February 2015. The approved building has clearly been designed to respond to the existence of the permit on the review site. The site at 24 Lilydale is narrow and the apartments are oriented to the north and south at each level. Internal bedrooms have access to a centrally located light well on the eastern side of the building. The interface with the review site (western elevation) comprises a predominantly sheer wall. The interface treatment between the two sites is unchanged by the current amendment application except for the two additional levels on the review site, both of which will sit above the height of the approved adjoining building. The proposed additional levels have no appreciable impact on the amenity of the dwellings in the approved building to the east.
   • A planning permit application has been submitted to the Council for an 11 storey building at 10-16 Lilydale Grove to the west of the review site, on the western side of the abutting lane[5]. The application proposes 86 dwellings of which 31 will have their sole or primary outlook toward the review site. That proposal has been designed in the knowledge of and in response to the permit on the review site, and has largely created setbacks from habitable room windows and balconies in the order of 9.0m. Because of the existence of the permit on the review site, the design of the proposal on 10-16 Lilydale Grove can be regarded as being a response to an existing condition. The two additional levels on the review site have no unacceptable impacts on the amenity of the dwellings in the proposal to the west. I agree with the evidence of Mr Negri that those amenity impacts need to be considered in the context of the emerging form and scale of development occurring within the commercial corridor.
   • To the south at 675-685 Burwood Road an application for planning permit is currently before the Tribunal[6]. The application is for a mixed use development comprising 111 dwellings in a ten storey building. The Council's concerns about the impact of the amended application on 18-22 Lilydale Grove, is that there will be an inequity in terms of the separation between the two sites at their interface. The Council submits that most of the separation distance will be borne by the Burwood Road property (combined with the width of the intervening lane). The separation between the north facing balconies of the Burwood Road proposal and the south facing balconies on the reviews site would be in the order of 8.83m. Having regard to the small number of north facing apartments in the Burwood Road proposal affected by their interface with the review site, and in the context of the 8.83m separation, there is no basis upon which to reject the proposed additional levels on the review site. The plans of the Burwood Road proposal presented to me demonstrate that it has been designed to respond in a meaningful way to the approved development on the review site. The two additional levels proposed on the review site has no significant adverse impact on the nature of that interface treatment.
4. In relation to car parking issues the proposed changes to the number of dwellings and the dwelling mix (increase in the number of one and three bedroom apartments and a reduction in the number of 2 bedroom apartments) the dispensation for car parking required under Clause 52.06 increases by 4. This translates to an increase in the number of 1 bedroom apartments that would not have a parking space allocated from 9 to 13.
5. The provision of car parking in the amended application is only marginally different to that under the original permit. In this location, having regard to the site's access to public transport, the proposed provision of parking is acceptable and is in accordance with policy expectations that encourage greater use of sustainable transport options.
6. The Council's concerns about the car park configuration are resolved by the specification of a specific type of car stacker system that achieves 1.7m height clearances.

1. It follows from the above reasons that it is my conclusion that the permit should be amended.

[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] W Property Group Pty Ltd v Boroondara CC [2017 VCAT 740

[3] W Property Group Pty Ltd v Boroondara CC [2014] VCAT 151

[4] Amendment VC134 changed the State Planning Policy Framework (SPPF) by referencing Plan Melbourne 2017-2050. That document references the most recent population forecasts for Melbourne, identifies the challenges population growth creates, and references a series of policy responses needed to address those challenges.

[5] The application had not been determined at the time of the hearing.

[6] Scheduled for hearing on 20 November 2017.