• where the application seeks to reduce the existing sunlight to the secluded private open space of an existing dwelling where the level of existing sunlight is less than the requirements of the first paragraph of Standard B21, consideration must be given to the matters set out in the decision guidelines for Standard B21 before deciding if the proposed development does not significantly overshadow existing secluded private open space (the objective of clause 55.04-5).

Consideration of the matters set out in the decision guidelines must necessarily commence with the accurate recording of existing sunlight to relevant areas during the course of 22 September and this will necessarily identify the source of any shadow cast at the times of the day the existing sunlight is recorded.

• in each case, the weight to be given to each matter required to be considered under the decision guidelines -

• will be determined by consideration of the particular facts and circumstances of each application; and
  • is a matter to be determined by the decision maker.

[57] For the avoidance of doubt, the proper interpretation of the second paragraph of B21 is - where existing sunlight to the secluded private open space of an existing dwelling is less than the requirements of the first paragraph of Standard B21, the amount of sunlight should not be further reduced at all, at any time, on 22 September. > > [58] Whether or not the permit application before the Tribunal meets the objective of clause 55.04-5 is a matter for the presiding member of this division of the Tribunal to determine and not the subject matter of the referral to me. > > (my emphasis)

1. Given that the level of existing sunlight to Mr Fox's secluded private open space is less than the requirements of the first paragraph of Standard B21, and the proposal intends to reduce the amount of sunlight, I need to turn my mind to whether the objective is achieved, having regard to the decision guidelines. These decision guidelines are set out earlier in my reasons. This approach is consistent with the underlined component of the quoted section from the decision of Ling v Whitehorse CC (Red Dot) [2023] VCAT 307.
2. It is my finding that the proposed reduction in sunlight will have a reasonably reduced impact on the existing use of the secluded private open space, as sunlight will continue to be available at most times during the day. The analysis provided in the plans of the proposed development, demonstrates that the existing area of sunlight will be completely lost at 9:00am at the equinox, will be reduced by only 1 square metre at 10:00am, and will be unaffected by the proposed development on the review site from 10:30am to 3:00pm at the equinox. As a result, and in response to the other decision guidelines:
   1. Solar access is maintained for most of the day, including throughout the middle of the day when it has the highest heating properties.
   2. The amenity of Mr Fox's apartment will be impacted briefly in the morning at the equinox, and otherwise will maintain its existing extent of solar access. I consider that given the siting and orientation of this apartment, its outlook and the size of its area of secluded private open space, it will continue to enjoy an acceptable level of amenity.
   3. Mr Fox's area of secluded private open space will remain highly usable, and will be able to continue to enjoy solar access at various times of the day at the equinox.
   4. While less solar access will be available in the winter months, this is to be expected at a ground floor apartment, where the area of secluded private open space is either sited adjacent to the boundary with a site that is strongly encouraged to be developed, or on the southern side of an existing three storey apartment building.
3. A further consideration is the extent of shadows cast by this proposed development, as compared to other possible development models. The existing three storey apartment building at 383 Wattletree Road is an alternative form of development, being a lower building at 3 storeys, with smaller ground floor setbacks, but with increased side boundary setbacks at upper levels. Shadow diagrams submitted during the course of the hearing demonstrated that even if the existing building at 383 Wattletree Road were replicated on the review site, that extensive shadows at 9:00am and 10:00am at the equinox would be cast on the secluded private open space of Mr Fox's apartment. This illustrates the fact that any reasonable development of the review site, being a site earmarked for additional housing that comprises substantial change, will likely have a shadow impact on Mr Fox's property.
4. Mr Fox has purchased a ground floor apartment immediately adjacent to a future development site, in a location where development of up to 13 metres in height is encouraged. In this strategic context, the review site should have always been regarded as a candidate for future development, with any form of future development likely to have shadowing impacts on the adjacent ground floor apartment. The impacts now proposed to Mr Fox's apartment have been limited by the generous setbacks proposed on the review site, but could not reasonably be eliminated entirely, given the strong policy support for significant redevelopment in this locality. For these reasons I conclude that the extent of additional shadows to be cast on Mr Fox's property are within reasonable expectations for a ground floor apartment in this locality where apartment buildings of some height are so strongly encouraged.
5. While I hear and understand that Mr Fox values the early morning sunlight, the maintenance of that sunlight is an unreasonable expectation where Mr Fox owns a ground floor south facing apartment in an area identified in the Stonnington Planning Scheme for substantial change and up to four storey development. The level of solar access currently enjoyed by Mr Fox was always going to be impacted when the adjoining review site is developed in a manner consistent with the encouragement of the Stonnington Planning Scheme. Even a three storey apartment development on the review site, with setbacks similar to that achieved on Mr Fox's site, would have caused increased overshadowing. While the proposal for the review site is at four storeys in height, it also employs a range of side boundary setbacks that far exceed that provided on Mr Fox's site. This assists to reduce the shadow impacts on Mr Fox's property to a reasonable level.
6. For these reasons I find that the proposal will not significantly overshadow Mr Fox's existing secluded private open space. As such, the relevant objective is achieved.
7. The other property that could have been potentially affected by shadowing is the north facing ground floor apartment at 383 Watttletree Road. The area of secluded private open space to this apartment will have no additional shadowing from the proposed development on the review site. As such, both the Standard and objective are achieved.

1. Potential overlooking to surrounding properties is generally addressed by the application of screens where required. The design of the overlooking screens have been adjusted for each of the interfaces to the review site, and each of the overlooking opportunities, so as to achieve an appropriate balance of providing an outlook for future residents of the review site, while also appropriately limiting the potential for overlooking. The result in most cases is an outcome where areas of secluded private open space and habitable rooms are not visible within 9.0 metres of the review site. The various techniques employed therefore complies with Standard B22, and are acceptable methods of limiting overlooking to surrounding properties.
2. Screens to restrict overlooking are not proposed to be applied to the west facing apartments 1.05 and 2.05, on the respective first and second floors of the proposed development on the review site. This is an appropriate outcome as:
   1. the leading edge of these balconies are setback 7.49 metres from the western boundary;
   2. the development adjacent at 383 Wattletree Road is constructed on boundary at ground level opposite these apartments;
   3. the windows at 383 Wattletree Road that are sited above the ground floor are setback a further 2.0 metres, resulting in a separation that exceeds 9.0 metres; and,
   4. the windows at 383 Wattletree Road at first and second floors that are visible from these proposed west facing apartments all have obscured glazing, or are intended to have obscured glazing on the endorsed plans for 383 Wattletree Road.
3. Adjacent to Mr Fox's area of secluded private open space the proposed development on the review site will include screening to all west facing windows, as well as the western edge of the balcony to Apartment 1.04. The plans do not depict any screening proposed to the western edge of the balcony to Apartment 2.04. I questioned Ms Ring about the potential for overlooking here, which resulted in a suggestion to continue the planter box that is proposed further north, along the edge of the balcony, which will require a shortening of the balcony from east to west. The effect of this planter box will be to limit downward views, in the manner depicted in Section B1 on plan TP-025. I will require this change by way of a permit condition, which I am satisfied will appropriately limit overlooking from this location.
4. Mr Jones also raised a concern regarding the potential for overlooking through a skylight window to a bedroom on the top floor apartment at 383 Wattletree Road. Those submissions were made on the basis that the skylight is shown on the endorsed plans for 383 Wattletree Road as having a sill height of 1700mm above floor level, and that a downward angle view from a higher level in the proposed development on the review site may allow views into this bedroom. However, the site inspection confirmed what the site survey depicts, that this skylight has been provided with a sill height well above 1700mm higher than the relative floor height. According to the site survey, this skylight has a sill height of 53.8, whereas the second floor (third storey) of the proposed development on the review site has a floor level of 51.66. This would place someone at a bedroom window in the proposed development at an eye level of 53.36, and unable to have a downward view through the bedroom skylight at 383 Wattletree Road. While the third floor of the proposed development on the review site has a higher floor level, the closest viewing point is over 10 metres away, and so is separated to limit overlooking in accordance with Standard B22.
5. To the northern interface, the closest north facing windows at first floor and above that are proposed on the review site, are setback 6.22 metres from the northern boundary. When combined with the width of the adjacent laneway, this creates a minimum separation distance of over 9.0 metres from the adjoining properties to the north of the review site. As such, no screening is required to any windows. Balconies are located within this setback. A form of screening is proposed to these north facing balconies that will restrict any downward views within 9.0 metres of each balcony edge. This successfully achieves compliance with Standard B22 and the relevant objective, as views will be successfully limited.
6. I am not persuaded by the submission of Mr Holbeach that there will be unreasonable overlooking as the proposed screens could be removed in the future. The Stonnington Planning Scheme regards the installation of screens as an effective and acceptable way to restrict overlooking. Further, there is enforcement action available should the screens be removed in the future. As such, I consider the proposed screens as a reliable mechanism to restrict overlooking.

1. Some of the Respondents, including Mr Fox, raise a concern with the impact of construction on the review site, including through dust, noise, the parking and movement of vehicles, impacts on pedestrians, and potential closure of local roads.
2. Construction impacts of the type described by the Respondents are an inevitable partner of the additional housing that is so clearly needed in inner and middle ring suburbs to address the current housing crisis. While every reasonable attempt should be made to reduce construction impacts on existing residents, the mere presence or likelihood of such impacts is not, in this context, a valid reason to refuse the grant of a planning permit for a development of this type. That is particularly the case in this neighbourhood, where new development providing additional housing is strongly encouraged by the Stonnington Planning Scheme.

1. Mr Fox and some of the other Respondents also raise a concern regarding the potential impacts of the proposed development, including the two basement levels, on the local water table and the surrounding buildings. Such construction impacts are not a part of the relevant considerations for a development of this type under the Stonnington Planning Scheme. Instead, they are to be considered as part of any application for a Building Permit.

1. For the reasons set out above I find that the proposed development will not result in any unreasonable off-site amenity impacts.

IS AN APPROPRIATE LEVEL OF INTERNAL AMENITY ACHIEVED?

1. Mr Jones submits that the proposed apartments rely too heavily on 'snorkel' windows for the provision of daylight. Dr Newton submits that the environmental performance of some of the proposed dwellings will not meet the relevant standards. During the course of the hearing the parties also identified that the review site does not provide for communal open space, as per Clause 55.07-2 of the Stonnington Planning Scheme.
2. I am not persuaded by these submissions, and instead find that the proposed apartments will provide an appropriate level of internal amenity for future occupants of the review site. I make this finding for the following reasons. Firstly, I do not share Mr Jones' concerns regarding the method of daylight access to bedrooms. Of the 78 bedrooms within the development, 16 are proposed to receive daylight via 'snorkel' bedrooms. This is a relatively low proportion. Further, Clause 55.07-14 of the Stonnington Planning Scheme allows for such an arrangement to occur, and the minimum dimensions set out in Standard B48 are achieved in the design that is before me. For these reasons I find that the proposed bedrooms will receive an adequate level of daylight.
3. Secondly, in response to the submissions of Dr Newton, I note that a BESS assessment was carried out in respect of the plans that were before Council when they made their decision on the planning permit application. In the Council report, the Council's ESD officer is noted as finding that the proposal achieves a BESS score of 57%, which represents best practice. I note that a revised BESS assessment has not yet been undertaken in respect of the amended plans substituted at the commencement of the proceeding. However, given the previous assessment, and the limited changes that have occurred, I can reasonably conclude that the proposed development can be made to achieve a BESS score that equates to best practice. I also agree with Dr Newton that there is always more that can be done to further improve the environmental performance of some of the proposed dwellings. However, the proposed development as a whole will be required by way of a permit condition to achieve the environmental performance sought by the Stonnington Planning Scheme, and I have not been persuaded that a higher standard should be applied to the proposed development of the review site.
4. Thirdly, I find it appropriate that communal open space not be required for this apartment building. I make this finding having regard to the size and dimensions of the areas of secluded private open space proposed on the review site, and the excellent access available to the large area of public open space at Central Park, on the opposite side of Wattletree Road. Even if quality communal open space were provided on the review site, it is likely that residents would prefer the public open space given its size, quality and accessibility.
5. Finally, I find that the proposed apartments will provide an appropriate level of internal amenity having regard to the size of the individual rooms and apartments, their ability to receive solar and daylight access, the sizes of the areas of secluded private open space, the convenient car parking provided in the basement, and the level of accessibility to a range of services and facilities in the surrounding neighbourhood.

DOES THE PROPOSAL APPROPRIATELY PROVIDE FOR CAR PARKING AND TRAFFIC MOVEMENTS?

1. Mr Parnell make extensive submissions regarding car parking and traffic matters. All of the matters raised by Mr Parnell have been heard and taken into account. The comprehensive submissions from Mr Parnell can be summarised as follows:
   1. The proposed supply of car parking in the basement is inadequately designed due to the size of the car parking spaces, width of aisles, lack of passing opportunities, lack of a dedicated turning bay and the provision of only one visitor car parking space. The proposed basement design does not accommodate the size of modern vehicles.
   2. As a result of these design deficiencies, residents and visitors to the review site will not find convenient car parking on site, and will instead prefer to park on street.
   3. There is already a high demand for on street car parking, and additional demand from the proposed development of the review site will create traffic and car parking problems, affecting nearby residents and businesses.
   4. Traffic movements in the surrounding road network are already difficult, and the increase in traffic and on street car parking demand generated by the proposed development on the review site will create increased congestion and delays, and reduced safety on the roads.
   5. In addition, vehicles exiting the laneway will have poor visibility of pedestrians on the footpaths, creating a safety issue.
   6. The increased noise and headlights associated with traffic along the laneway will cause amenity impacts for adjacent residents.
   7. Many of these issues could be resolved by having direct vehicular access from the review site to Wattletree Road.
2. Traffic and car parking evidence was provided by Ms Dunstan. It is Ms Dunstan's evidence that the proposed development of 29 dwellings on the review site is required to provide 49 resident car parking spaces and zero visitor car parking, under the provisions found at Clause 52.06 of the Stonnington Planning Scheme. The proposed development on the review site intends to provide 77 resident car parking spaces, one visitor car parking space and another space that can alternatively be used for turning movements for the waste vehicle, and a car wash bay at other times. As the proposal intends to provide more car parking than that required by the Stonnington Planning Scheme, I cannot require any additional car parking to be provided on site.
3. Some of the Respondents raised a concern in their written submissions regarding the oversupply of car parking, arguing that the additional car parking spaces should be removed. At the commencement of the hearing I advised the parties of the decision of Justice Quigley in Brunswick Investments v Morleand CC [2021] VCAT 1191 that determined a question of law, in relation to the Tribunal's ability to require a reduction of car parking where an oversupply is proposed to be provided. I advised the parties that if anyone still sought to pursue that line of submissions, then they would first need to address me in relation to Justice Quigley's decision, and advise how this proceeding is different. No party made any oral submissions on this issue.
4. I also note that the proposal intends to remove the three existing crossovers to Wattletree Road, and have all vehicular access off the rear laneway. This will provide for additional on-street car parking, outside of the afternoon clearway times on Wattletree Road.
5. In relation to traffic impacts, it is the evidence of Ms Dunstan that the proposal will likely create additional traffic comprising 174 vehicle trips per day, including 18 vehicle trips in each of the peak hours. These figures were arrived at after applying a rate of six vehicle movements per day to each of the proposed apartments. This represents a conservative approach by Ms Dunstan that likely overestimates the traffic generation caused by the proposed apartments, noting that the apartment developments to the immediate west of the review site currently generate in the order of three vehicle movements per apartment per day in the laneway.
6. This new traffic will be added to the existing vehicle movements in the eastern part of the rear laneway, which according to a traffic survey currently comprise up to three vehicle movements in a peak hour. It is the evidence of Ms Dunstan that the resultant traffic volumes of up to 21 vehicle movements in a peak hour can be accommodated in the narrow laneway, noting that under the relevant Australian Standard a passing area is required where vehicle movements exceed 30 in a peak hour. Given that this traffic will only need to travel along the short stretch of the laneway between the proposed access point to the review site, and Irymple Avenue to the east, I am persuaded by the evidence of Ms Dunstan that such traffic levels can be accommodated on the narrow laneway.
7. The Respondents raise a concern that the increased traffic in the rear laneway will impact their existing access. Only five other properties currently have vehicular access to the laneway. The apartment buildings at 4 Kingston Street and 383 Riversdale Road and the rear garage at 4 Irymple Avenue are all located proximate to the western end of the laneway. As such, vehicle movements to and from these properties are much more likely to utilise the western end of the laneway, and the exit to Kingston Street. They will therefore likely be unaffected by the traffic generated by the proposed development of the review site.
8. In comparison, as depicted in the aerial photograph below from Ms Dunstan's evidence, the review site is located closer to the eastern end of the laneway. Further, the proposed access point to the basement on the review site is sited adjacent to the eastern side boundary, and just 18 metres or so from the eastern end of the laneway. As such, convenience will indicate that vehicles to and from the proposed development on the review site will likely only use the eastern end of the laneway. As such, these vehicles will not likely conflict with those from the other properties that will utilise the western end of the laneway.

1. The properties at 10 and 14 Irymple Avenue each have garages that access the eastern end of the existing laneway. Vehicles form these garages will need to share the eastern end of the laneway with the traffic generated from the proposed development of the review site. As identified above, the mix of existing and proposed traffic results in 21 vehicle movements across a peak hour, or one vehicle movement every three minutes, even accounting for Ms Dunstan's conservatively high traffic generation rates from the proposed development of the review site. Given the relatively short length of the laneway, I am persuaded by the evidence of Ms Dunstan that the laneway can effectively operate with this level of traffic. Upon turning into the laneway, vehicles have a clear view of any existing vehicles on the laneway, and can prop in Irymple Avenue if necessary. Further, vehicles exiting the proposed development on the review site will also have a clear view down the laneway, and can prop in the two way access to the review site if they need to wait for an on-coming vehicle.
2. Some of the Respondents also raise a concern that the proposed increase in traffic will conflict with pedestrians utilising both Kingston Street and Irymple Avenue. I anticipate that all or almost all of the traffic generated from the proposed development of the review site will utilise the eastern entry to the laneway off Irymple Avenue. At this intersection, there are pedestrian sight lines available on both the northern and southern sides of the laneway, for traffic exiting the laneway. As such, there are currently excellent pedestrian sight lines at this intersection, that will enable the safe movement of pedestrians. I acknowledge that there is the potential for landscaping adjacent to the car park of the medical centre to impede on the sight line on the southern side of the laneway in the future. However, there is also the potential for such landscaping to be maintained in a manner that continues to provide for appropriate sight lines. Under the current conditions, excellent sight lines are provided, and so continued pedestrian safety should occur at this intersection.
3. In response to Mr Parnell's submissions as previously summarised, I make the following observations:
   1. The basement car park design complies with the design requirements found at Clause 52.06 of the Stonnington Planning Scheme, as well as the relevant Australian Standard. In addition Ms Dunstan has demonstrated, through the use of swept path diagrams applied in accordance with the relevant Australian Standard, that convenient access and use of car parking spaces is achieved. For these reasons, I find that the basement entry and car park are appropriately designed. To the extent that Mr Purnell sought to demonstrate that the relevant design standards are outdated and that new design standards should apply, it is not my role to rewrite the standards that apply to my decision making. That is a task for others to consider. Rather, it is my role to apply the standards that are found in, and referenced by, the Stonnington Planning Scheme.
   2. Convenient car parking will be available for residents and at least one visitor in the basement car park proposed for the review site. Some residents may prefer to park on street, however they can only do so while there is available unrestricted on street car parking. This proposal does what is required of it by the Stonington Planning Scheme, and that is to provide the requisite number of car parking spaces in a basement that provides for efficient vehicle movements.
   3. As the required number of car parking spaces are provided in a convenient layout on site, there is no reason for the proposed development of the review site to unreasonably add to the demand for on street car parking in this locality.
   4. I am not persuaded by the submissions of Mr Parnell that vehicle movements out of Irymple Avenue and into Wattletree Road are so difficult, or restricted by view by trams and other obstacles, so as to create a dangerous traffic environment for the proposed traffic from the review site. Instead, I consider that this intersection can be safely and conveniently traversed by drivers who take the appropriate level of care, as I did during my site inspection. I agree with Mr Parnell that the proposed development of the review site will add to the existing congestion and delays experienced currently in the surrounding road network. It is trite to observe that locations in inner and middle ring suburbs, particularly those close to tramlines and activity centres, both experience an existing level of traffic congestion and delay, as well as being a target for increased housing. The existing levels of traffic congestion and delay are not a reason to refuse to grant a permit for the increased housing that is so strongly encouraged to be achieved in this location. I am persuaded by the evidence of Ms Dunstan that the increased traffic that will be caused by the proposed development on the review site can be safely and efficiently accommodated in the surrounding road network, and that while there will be increased delays to some of the nearby intersections, these delays will not be unreasonable, and will not create an unsafe road network.
   5. For the reasons set out above I am not persuaded that vehicles exiting the laneway will have poor visibility of pedestrians on the footpath in Irymple Avenue.
   6. I acknowledge that there will be increased noise and lights as a result of the increased traffic along the laneway. This is an unavoidable impact arising from a clear policy intent to direct additional housing to this existing suburban location. Given the quantity of traffic movements expected along this laneway, and the likely very low speed of traffic utilising the laneway, I do not anticipate an excessive amount of noise to be generated by the proposed traffic accessing the review site. In relation to the impact from headlights, on my site inspection I did not observe a direct line of sight from the height of headlights on a vehicle, over boundary fencing abutting the laneway, to a window in any of the nearby dwellings. I therefore do not anticipate an unreasonable impact from headlights on surrounding properties.
   7. While some of the impacts associated with traffic within the laneway might be resolved by having direct access from Wattletree Road, the prospect of such access has been denied by the Department of Transport in an email dated 2 December 2022. In any case, it is not my role to consider whether an alternative, or indeed better, mode of access to the review site might be possible. Rather, my role is to consider the proposal that is before me, and for the reasons set out above I find that the proposal will not cause any unreasonable traffic impacts on the surrounding road network.
4. For these reasons I find that the proposal will appropriately provide for car parking and traffic movements.

WILL THE PROPOSAL ACHIEVE A NET COMMUNITY BENEFIT?

1. The application proposes the development of 29 dwellings in a location where the Stonington Planning Scheme provides strong policy support for the establishment of new housing. The provision of 29 new dwellings in this middle suburban location, in a location that enables future occupants to walk to a tram stop, an extensive area of public open space, an activity centre and other services and facilities, represents a weighty benefit in a net community benefit analysis.
2. In difference to the submissions of those parties that oppose the grant of a permit, I regard the proposal to have very limited community disbenefits. In making this finding, I do not regard the visibility to a four storey apartment building to be a community disbenefit, as it is a form of development that is encouraged by the variations made via the Schedule to the General Residential Zone in this very location. Further, as the proposal provides for more than sufficient car parking on site, appropriately mitigates the traffic impacts to the surrounding road network, and appropriately limits the off-site amenity impacts to surrounding properties, I also do not regard these as community disbenefits.
3. I will acknowledge as a community disbenefit the further loss of the already restricted solar access to Mr Fox's apartment, as well as the loss of three existing significant canopy trees on the review site. However, for the reasons set out above, I find that the solar impact to Mr Fox's apartment has been appropriately reduced, and should reasonably be anticipated for a ground floor south facing apartment in a substantial change area where development of up to 13 metres in height is strongly encouraged for the review site. I also consider that the loss of canopy trees on the review site to be a necessary by-product of the extent of housing change that is strongly encouraged in this locality. For these reasons, I find that the disbenefits that I have identified above are not weighty considerations in a net community benefit analysis.
4. The Respondents submit that they represent the surrounding community, who do not consider that a net community benefit will be achieved. In addition to the community represented by the Respondents, I also need to have regard to those components or generations of the existing community who have not yet been able to break into the Malvern East housing market, as well as future generations of Victorians. It is these later sectors of the community that will benefit most from the provision of increased housing supply in this desirable and highly liveable location. For these reasons I find that the proposed development will achieve a net community benefit, and is worthy of the grant of a planning permit.

1. A number of matters about permit conditions were raised by the parties. With respect to those matters, other than those already addressed above, I summarise my conclusions as follows:
   1. I will delete the components of Condition 1 as drafted by Council, that seek to make changes to the proposal that are not required having regard to my assessment set out earlier in these reasons.
   2. I will also delete the various components of Condition 1 that have already been depicted in the plans that were substituted at the commencement of the hearing.
   3. I will add to Condition 1 changes to the landscaping which were discussed during the course of the hearing.
   4. I will amend Condition 7 to ensure that the landscaping changes set out in Condition 1 make their way onto the landscape plan.
   5. The Applicant has requested the deletion of Condition 10 and replaced with, 'Drainage to the satisfaction of the Responsible Authority.' Instead I will amend this condition in the manner suggested by Council in order to provide some flexibility in the ultimate drainage resolution, as it is reasonable for the Council to stipulate a legal point of discharge and a preferred manner to reach that point, and then for the Applicant to be given an opportunity to propose a different drainage method.
   6. I will amend Condition 16 to ensure that all it requires is for the measures depicted on the plans to restrict overlooking are installed and maintained, and cannot be used to require a review as to the adequacy of those measures against a standard or objective.

1. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

• The construction of two or more dwellings on a lot
• The construction of a front fence
• The alteration of access to land within the Transport Zone 2

1. Before the use and development starts, one (1) electronic copy of plans drawn to scale and fully dimensioned must be submitted to and approved by the Responsible Authority for that stage. The plans must be generally in accordance with the plans prepared Ewert Leaf, Rev. B, dated 22/3/2023 but modified to show:

(a) Notations to confirm that the storage cages (which are not within a dedicated garage) are allocated to the same dwelling as the nearest car parking space (where practical). > > (b) Identification of externally mounted lighting, baffled where required to limit glare into neighbouring residential properties. > > (c) Any modifications as required by conditions 3 (Waste Management Plan), 4 (Sustainable Management Plan) and 7 (Landscape Plan). > > (d) Correction of the apartment numbers in TP-026, consistent with those depicted in Revision G of this plan. > > (e) The provision of a landscape treatment to the northern component of the eastern elevation (comprising the external wall to Apartments 1.08 and 2.08) in accordance with Ewert Leaf plan SK07, to comprise of a planter box at first floor level and a wire mesh trellis above. This landscape treatment is also to be extended around the corner to the eastern component of the northern elevation, for the depth of the bedroom 3 wall to Apartments 1.08 and 2.08. > > (f) An extension to the planter box on the western elevation of Apartment 2.04, so that it extends in front of the western edge of the balcony to this apartment. This is to be achieved by reducing the east-west length of this balcony, and not by reducing the setback to the western boundary of the site. > > (g) The provision of common property around the relocated tree 14 in the south-eastern corner of the site, with appropriate access, so that the maintenance of this tree becomes the responsibility of the future body corporate.

2. 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 without the prior written consent of the Responsible Authority.
3. Prior to the endorsement of plans, a Waste Management Plan (WMP) must be submitted to and approved by the Responsible Authority. The WMP must be generally in accordance with the WMP prepared Urban Waste Environmental Consultants (advertised in July 2022) but modified to:

(a) Any changes to the plans as per Condition 1. > > (b) Reflect the current number of apartments. > > (c) Confirm the waste generation Figures and the collection schedule.

When approved, the WMP will be endorsed and form part of the permit. Waste collection from the development must be in accordance with the WMP, to the satisfaction of the Responsible Authority.

1. Prior to the endorsement of plans, a Sustainable Management Plan (SMP) must be submitted to and approved by the Responsible Authority. Upon approval, the SMP will be endorsed as part of the planning permit and the development must incorporate the sustainable design initiatives outlined in the SMP to the satisfaction of the Responsible Authority. Amendments to the SMP must be incorporated into plan changes required under Condition 1. The SMP must be in accordance with the SMP prepared by GIW Environmental Solutions and advertised in July 2022 and, unless otherwise approved by the Responsible Authority, modified to show

(a) To reflect the plans endorsed under Condition 1.

2. Prior to the occupation of the building, a report from the author of the Sustainable Management Plan, approved pursuant to this permit, or similarly qualified person or company, must be submitted to the Responsible Authority. The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the Sustainable Management Plan have been implemented in accordance with the approved plan.
3. The project must incorporate the Water Sensitive Urban Design initiatives detailed in the endorsed plans and/or stormwater management report.
4. Prior to the endorsement of plans, a landscape plan prepared by a landscape architect or suitably qualified or experienced landscape designer, must be submitted to and approved by the Responsible Authority. When approved, the landscape plan will be endorsed and will then form part of the permit. The landscape plan must be drawn to scale with dimensions and one (1) electronic copy must be provided. The landscape plan must be in accordance with the landscape plans prepared by Jack Merlo Design and Landscape, Rev. C, dated 14/4/2023, but modified to show:

(a) Consistency with the plans endorsed under Condition 1. > > (b) The additional landscaping required by Conditions 1(d), (e) and (f). > > (c) The replacement of the three Magnolia grandiflora 'St Mary' within the front setback to Apartment G.02, with a taller species, such as the Magnolia x alba (White Sandalwood). > > (d) Correction of the planting schedule to show 2 Scarlett Oak trees. > > (e) Correction of the planting schedule and landscape plan to show 7 Water Gum Compact Form trees, including a correction to the planter box in from of Apartment G.01 reflecting only one Water Gum Compact Form tree.

5. Prior to the commencement of the use / occupation of the building, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority. Landscaping must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
6. All plant and equipment (including air-conditioning units) must be screened and baffled and/or insulated to minimise noise and vibration to ensure compliance with noise limits determined in accordance with Part 5.3 - Noise, of the Environment Protection Regulations 2021 to the satisfaction of the Responsible Authority.
7. Prior to an 'Occupancy Permit' being issued, the owner must at their cost provide a 225mm diameter outfall drain within the rear right-of-way to connect the property to the closest Council underground drain located in Kingston Street, or provide some other drainage design to the satisfaction of the Council. A design for the drain must be prepared by a suitably qualified Engineer and approved by Council's Infrastructure unit. The drain must be constructed in accordance with the approved plan under the supervision and to the satisfaction of Council.
8. Prior to a building permit being issued, 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 all 'recommendations' and requirements contained in that report. All drainage must be by means of a gravity based system with the exception of runoff from any basement ramp and agricultural drains which may be pumped. The relevant building surveyor must check and approve the drainage design and ensure that protection of the building is provided from a 1 in 100 A.R.I. rainfall event as required by the Building Regulations.
9. Prior to an 'Occupancy Permit' being issued, a suitably qualified Engineer must carry out a detailed inspection of the completed stormwater drainage system and associated works including all water storage tanks and detention (if applicable) to ensure that all works have been constructed in accordance with the approved design and the relevant planning permit conditions.
10. The existing footpath levels must not be lowered or altered in any way at the property line (to facilitate the basement ramp or for any other reason).
11. The redundant vehicular crossing must be removed and the footpath, nature strip and kerb reinstated at the owner's cost to the satisfaction of Council.
12. The applicant must at their cost provide a stormwater detention system to restrict runoff from the development to no greater than the existing runoff based on a 1 in 10 A.R.I. to the satisfaction of Council's Infrastructure Unit. Alternatively, in lieu of the stand-alone detention system, the owner may provide stormwater tanks that are in total 8,000 litres greater than those tanks required to satisfy WSUD requirements for the development. Those tanks must be connected to all toilets.
13. Prior to the occupation of the building, the overlooking measures depicted on the endorsed plans must be installed and maintained to the satisfaction of the Responsible Authority thereafter for the life of the building.
14. Prior to the endorsement of the plans referred to in Condition 1 of this permit, a Transplant Method Statement must be submitted by a suitably qualified and experienced Arborist in relation to the relocation of the Canary Island Date Palm (Phoenix canariensis) and must be approved by the Responsible Authority prior to the commencement of any works including demolition and levelling of the site. The Transplant Method Statement must provide specific details for how the tree will be relocated on a site. It must provide specific details in regards to the proposed time line for work and must provide a works and certification schedule to indicate when and how each stage of the operation is to be carried out. The endorsed Transplant Method Statement must be complied with to the satisfaction of the Responsible Authority and must include:

(a) A site plan indicating the proposed new position of the Palm to be transplanted in relation to the proposed development. > > (b) Pre-transplantation works schedule. > > (c) Specification for site preparation. > > (d) Transplantation method and who will be undertaking the works. > > (e) Plant storage details, if applicable > > (f) Post-transplantation maintenance schedule for a minimum period of 24 months.

The Responsible Authority must be notified at least 5 working days prior to the removal and transplanting of the Canary Island Date Palm (Phoenix canariensis) in accordance with the Transplant Method Statement.

1. This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:

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

In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

1. Prior to the occupation of the development, all disused or redundant vehicle crossings must be removed, and the area reinstated to (kerb and channel) the satisfaction of the Responsible Authority; and at no cost to the Head, Transport for Victoria.

[1] Mr Jones informed the Tribunal that he was not representing Helen Wirtz, despite an email from Ms Wirtz advising the Tribunal that she was being represented by Mr Jones.

[2] 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.

[3] While the review site is one removed from land within the Commercial 1 Zone, the intervening property is used as a medical centre, which is a use that is part of the adjacent activity centre.

[4] A concept explored in the decisions of Knox City Council v Tulcany Pty Ltd [2004] VSC 375 and Rozen & Anor v Macedon Ranges Shire Council & Anor [2010] VSC 583.

[5] As per the guidance regarding integrated decision making found at Clause 71.02-3 of the Stonnington Planning Scheme, and also consistent with the objective at Section 4(1)(g) of the Planning and Environment Act 1987.

[6] Even if the nearby activity centre was considered to be confined to the land within the Commercial 1 Zone, and therefore started on the eastern side of Irymple Avenue, that does not alter the level of accessibility enjoyed by the review site to the activity centre, nor the relevance or influence of the policy framework referred to in these reasons.

[7] Clause 11.03-1S of the Stonnington Planning Scheme.

[10] Noting that apartments on each floor of 383 Wattletree Road have a primary outlook either to the north or south respectively, with secondary outlooks towards the respective side boundaries.

[11] Clause 02.03-5 of the Stonnington Planning Scheme.

[12] As depicted on plan TP-020.D. I also acknowledge that the Council submits that the front setback of 383 Wattletree Road is 8.9 metres I have taken both measurements into account in my assessment.

[13] According to paragraph 8.13 of the Council's submissions.