1. The condition included in Appendix A of our order is not consistent with the views we set out in paragraph 73 of our reasons. Clearly, we had intended that the time for commencement of the development be 4 years with 7 years for completion.
2. Section 119 of the Victorian Civil and Administrative Tribunal Act 1998 provides that the Tribunal may correct an order made by it if the order contains:

1. a clerical mistake; 2. an error arising from an accidental slip or omission;

1. a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the order; or

1. a defect of form.
2. We are satisfied that the specification of 3 year limits in condition 30 was an accidental clerical slip that we intend to correct pursuant to Section 119 of the VCAT Act.

Proposed complex of dwellings in buildings between 3 and 10 storeys. Weight to be given, in assessing urban design issues, to policies encouraging substantial but as-yet unrealised urban change v the existing neighbourhood character. Whether the proposal's affect on traffic amenity and safety, neighbours' amenity or other amenity issues is acceptable.

H. Povazan, H. McCarthy, B.W. & L.D. Schwartz, D. MCarthy, F. & S. Falconer, G. & P. Carland, G. Privitera and others (refer Appendix B).

Westfield Ltd v Manningham CC & Ors [2010] VCAT 980

1 The decision of the Responsible Authority is set aside.

2 In permit application PL08/020023 a permit is granted and directed to be issued for land at 1 Grosvenor Street, Doncaster. The permit allows the construction of buildings and works for dwellings in one ten-storey, one four-storey and three three-storey buildings, together with associated car parking generally in accordance with the endorsed plans.

3 The permit must contain the conditions set out in Appendix A.

Mr. Chris Townshend SC, and Ms E Porter, barristers, instructed by Holding Redlich. They called, as expert witnesses:

• Ms. Cathy Heggan, town planner of Fulcrum Town Planners.
• Mr. John Kiriakidis, traffic engineer of GTA Consultants.
• Mr. Vaughan Connor, town planner of Contour.
• Mr. Lindsay Fraser, landscape architect, of Land Design Partnership Pty Ltd

Mr. Terry Montebello, lawyer, of Maddocks. Mr. Montebello called, as expert witness, Mr. Andrew Hutson, architect.

Ms. Sharon Stewart for the Department of Planning & Community Development.

Mr. Darren McCarthy for himself and Ms. Heather McCarthy

Mr. Frank Falconer for himself and Ms. Sigrid Falconer

Ms. Gail Carland for herself and Mr. Peter Carland.

Five separate buildings (Building C, of up to 10 storeys; Building B, of four storeys; Buildings A1, A2 and A3, being a set of three storey buildings in a row) to contain 185 dwellings with open, semi-basement and basement parking areas for 204 cars. An internal driveway will provide access to carparking, with two connections to Grosvenor Street.

Review pursuant to Section 77 of the Planning and Environment Act 1987 of Council's decision to refuse to grant a permit

Activity Centre Zone (ACZ1); Incorporated Plan Overlay (IPO1), Development Contributions Plan Overlay (DCPO).

Adjoining land to the west, south-west and south is in a similar zone and overlays. Adjoining land to the east, northeast and north is zoned Residential 1 and is within the Design and Development Overlay (DPO8).

Clause 14, 16 and 17 - supporting a more compact city, well-designed medium-density housing and activity centres as the preferred location for more intense development, including residential.

Clause 37.08 Activity Centre Zone, that sets out a range of objectives and guidelines for the activity centre as a whole and, specifically, for Precinct 4E, which is the review site.

A site of 5,230 square metres, approximately square in shape but with Grosvenor Street passing along its western and southern boundaries and curving gently around the south-western corner. The land has a fall from south-west to north-west of 6.6 metres. The site is currently used for at at-grade car park and has a row of single-storey, temporary rooms along its northern side. There is mature native vegetation along the site's eastern boundary.

The site has one (eastern) residential interface and its northern boundary abuts Saxon Reserve, a local park.

We inspected the subject site and its locality during the course of the hearing, including viewing the site and the Westfield Shopping Centre from various points referred to by some of the respondents at the hearing.

Madden Group Pty Ltd v Darebin CC [2010] VCAT 9

1. Westfield Pty Ltd proposes to build a large residential development that is to contain 185 dwellings. The largest building, Building C, is to be up to 10 floors in an L-shaped structure, with the joint in the L to be located on the southwestern portion of the site. A four-storey building (Building B) is to be located along the northern boundary, where it will face onto Saxon Park. A set of three three-storey buildings (Buildings A1, A2 and A3) is to be located along eastern boundary that abuts the rear of lots containing existing dwellings which face onto Roseville Avenue, to their east.
2. Council's principal concern related to the building's height and its failure to provide an appropriate transition between the escarpment effect of the Westfield Shopping Centre, to its west, and the surrounding residential development - being generally single storeyed, detached dwellings.
3. The resident objectors were also concerned about the proposed height of the buildings. They also raised a number of other concerns: increased parking congestion along Grosvenor Street and other local streets; increased traffic flows affecting amenity and safety, including traffic along Grosvenor Street, Westfield Drive and other local streets, and increased traffic danger at the intersection of Westfield Drive and Williamsons Road. Immediate neighbours to the east were also concerned about loss of privacy and the bulk of the three three-storey buildings.
4. The permit applicant sought to justify the proposed development on the basis that
   • Existing policy supports high-density housing development within activity centres and substantial change to housing in the adjoining residential areas.
   • The design responds appropriately to the more specific, local policy that seeks a transition in scale between the Westfield Shopping Centre and the future form of development in the surrounding residential areas.
   • The proposal provides the required parking spaces, on-street parking is a matter for Council management, increased traffic volumes are well within the limits accepted by Council, as set out in its traffic strategy for the Doncaster Hill area and the increased traffic at major intersections will meet the necessary safety and performance requirements.

1. While the site is within the Activity Centre Zone (ACZ1), however it is separated from the Westfield Plaza shopping centre by Grosvenor Street, sitting almost as an island site, although it has an abuttal with other properties on its east side. On its northern side it abuts Saxon Park, a local park with playground equipment that also provides a pedestrian connection between Westfield Drive/Grosvenor Street and Saxon Street and, via Saxon Street, to other local streets to the north. To the west, the northern edge of the Westfield Shopping Centre's decked parking and bulky-goods retail areas rise above high retaining walls to provide a kind of escarpment. Conventional suburban housing stretches in a northerly arc from the west through to the south.

1. Council's submission acknowledged that it "in principle supports this form of development in this location", but Council ultimately refused to grant a permit on the following three grounds:
   • The height and mass of the building shown as Building "C" is contrary to the objectives of Design and development Overlay Schedule 6 as the proposal does not represent a suitable transition form[1]
   • Parking arrangements for Building A are unsatisfactory and will result in an unacceptable impact on local on-street parking
   • The cumulative impact of new vehicle movements represents unacceptable impact on the amenity of residents in the area.

1. Council and the permit applicant shared common ground on the suitability of the site to accommodate some form of higher density housing. The major difference between them was about the extent of the 10-storey level of Building C. While the resident-objectors appeared to accept some form of more intense housing development on the subject site, they considered that the development should have a substantially lower overall scale.
2. In effect, the major issue in contention in this matter is one of urban character[2] and relates entirely to the height of the proposed buildings, particularly of Building C.
3. The building heights proposed by the permit applicant and the variation in height that Council sought would both, in our view, respond adequately to the majority of state and local strategies, policies and the relevant zone and overlay objectives. Generally, the reduction in the number of dwellings that would result if Building C were to be reduced in scale as Council sought would not, in our view, bring the development into non-compliance with state policies relating to urban consolidation and the supporting objectives of the ACZ1.

Is the proposed design and transition in height from Westfield Plaza to adjoining dwellings appropriate?

1. Council contended that all of the transition in building height between Westfield Plaza and the site's residential setting should occur across the whole site, i.e. with no part of the development approaching the height of Westfield Plaza). The permit applicant contended that the transition-phase could be limited to part of the site, with part being at a level similar to that of the adjoining section of Westfield Plaza. Residents considered the overall height to be generally excessive. We have concluded that the transition-aspect of the design, and overall building heights, are appropriate.
2. Our resolution of this issue depends on what weight we give to either of two choices: to assess the proposed development in terms of its response to the character and amenity of the existing residential area around the site, or to assess it in terms of its response to the character and amenity that Council seeks in its Doncaster Hill Strategy. In brief, it seemed to us that Council's submission, and Mr. Hutson's evidence in particular, leaned overly towards the former approach while Mr. Townshend's submissions and his experts' evidence favoured the latter.
3. Residents' submissions proposed that, if Council was not prepared to acquire the site for a local park, building heights should be limited to a maximum of 14.5 metres (about 5 or 6 storey), with 7.5 metres (2 storeys) being the height limit around the site's edges. One resident sought to protect the characteristics of the locality as "a low rise residential village" while another extolled the value of additional housing being for families (i.e. with children), rather than the types of household that would occupy one or two-bedroom flats.
4. We have set out here a more detailed outline of the site's planning context, as relevant to our decision:
   • The site is within and adjoins the boundary of the ACZ, with Residential 1 zone beyond to the north-west through to south-east
   • Schedule 1 to the ACZ defines the site as being situated within Precinct 4E and this precinct, unlike most of the other precincts in the ACZ, does not specify a maximum building height or building setbacks; Schedule 1 of the ACZ applies the following objectives to the whole of the ACZ, i.e. the whole of the Doncaster Hill area:
     • To emphasise the existing dramatic landform of Doncaster Hill through built form that steps down the hill.
     • To ensure an appropriate transition in height ... to surrounding neighbourhoods.
     • To encourage built form that capitalises on key views and vistas including to the middle-ground and distant features including ... Kinglake Ranges and the central Melbourne skyline.
   • The most relevant guideline in Precinct 4 of the ACZ1 is:
     • Future building form is to maximise the north-east aspect and views, and ....
   • A substantial swathe of surrounding Residential 1 zoned land is in DDO8, an overlay designed to encourage residential redevelopment. Subject to sufficient amalgamation of residential sites, buildings have a permitted maximum height of 11 metres, i.e. slightly more than the three A-group buildings proposed along the site's eastern side. DDO8 includes the objectives (our emphasis):
     • To increase residential densities and provide a range of housing types around activity centres and along main roads.
     • To encourage three storey, including 'apartment style', developments on larger lots.
5. The proposed development, in our view, emphasises the "dramatic landform of Doncaster Hill through built form that steps down". It includes, within the site, a transition in height from an effective 10 storeys[3] to three (to the east) or four (to the north). It does "maximise the north-east aspect and views". The question then is: does the proposed development cross any other inappropriate boundaries?
6. Mr. Hutson accepted that, strategically, the proposal has adopted an acceptable approach to urban design, with his only concern being the overall height and bulk of Building C. In his assessment, he concluded that the important urban design objective for this site is to "incorporate a transition of scale across the subject site to the north and east". He considered the height and general form of Buildings A and B to be acceptable, and the height of Building C to be acceptable subject to the qualification that its height be reduced by two storeys overall or by four storeys at the end of each wing (i.e. by stepping down from the central section).
7. Mr. Hutson was concerned that the Building C should "work with, not worsen the existing situation" (i.e. being the bulk of the Westfield Plaza to the south), should avoid creating a canyon effect between it and Westfield Plaza and should not "cast a significantly greater bulk (than Westfield Plaza) across the residential context".
8. Mr. Hutson clearly put greater weight, in his analysis, on Building C's dominating effect in closer views. He also asserted that he had taken account of those policies promoting redevelopment in the DDO8 area and had taken account of both longer-term and current development. However, we concluded that, by his emphasis on the uncertainty of longer-term outcomes for the adjoining residential area, to have placed greater weight on the site's present setting.
9. We accept Mr. Townshend's submission and, in particular Ms. Heggan's evidence, that the approach to emphasising "the dramatic landform of Doncaster Hill" involves an emphasis on the landform as seen in more distant, as compared to close-at-hand, views. Views from the valley that extends along Saxon Street in a north-south direction would, in our opinion, be less important in this respect than those from ridgelines (insofar as the development would be visible from them) such as that along Williamsons Road to the west, Doncaster Road to the south-east or, to the east, Turana Street and even Church Road. From this perspective, it is not material whether Building C is, as sought by Council, lower than the nearer sections of Westfield Plaza or as high as Westfield Plaza, because in distant views it would be seen against, or as an extension of, the escarpment effect that Westfield Plaza creates.
10. All of the urban design disbenefits arising from that part of the design that repeats, to a significant extent, the height of the adjoining Westfield Plaza, is limited to the site's immediate locality. Council policy has designated this locality for much greater change than is typically expected in such residential areas. In contrast to Council's policies, which were developed in 2002 and envisage housing of up to three storeys (the 11 metres of DDO8) in the adjoining residential areas, the residents of these areas have an expectation that development around the edge of this site should be limited to 7.5 metres height. We consider this to be at odds with the policy context and DDO8 provisions that apply.
11. We acknowledge that the outer ends of Building C will be prominent, even dominating, when seen close at hand, as is the north-eastern corner of Westfield Plaza. However, we conclude that this is acceptable given a policy context that supports higher densities and substantial change in the areas surrounding the site.
12. We acknowledge that one of the most contentious types of urban change in our community is that which affects how places look. We also believe that, in contrast to other types of change to a place's amenity (e.g. excessive noise, overlooking, odour) peoples' response to an element of major visual change can be ameliorated by time and also masked by other changes over time, such as those Council anticipates will occur in the adjoining residential areas.
13. In our view, it is inappropriate to constrain development that satisfies policies that are well developed and strategically important at a metropolitan level simply because that development would introduce a significant degree of change. Council's policies envisage such a degree of visual change, though it is clear to us that the local community is not fully aware of this or does not agree with the policies that are in the scheme.
14. With respect to Mr. Hutson's scepticism about when and how change will occur to adjoining residential areas, we consider that the comment of Bennet M[4] is appropriate in this case:

It may be an optimistic and long-term outcome, but it is one that planning policy seeks to achieve.

1. Ultimately, we conclude that Building C represents an appropriate response to the site and the strategic context that applies. It is a large site. It is within a Principal Activity Centre. It is in a location where high-density residential development is encouraged and should be contemplated. We note that this view is shared by the Minister for Planning and the officers of the Department of Planning and Community Development.
2. The ten-storey height of Building C is acceptable, given the design of the building and the juxtaposition of this taller element of the overall development to the dramatic height of the Westfield Plaza centre. The location of Buildings A and B around the site's northern and eastern perimeter provides an acceptable sense of transition in height to the surrounding residential areas. The 3-storey height of the Building A component would result in a built-height relationship that is compatible with both the existing residential development to the east and the anticipated 3-storey forms that can be expected when development that accords with the DDO8 occurs over time.
3. Mr. Hutson was also concerned about the lack of modulation of the western elevation of Building C. He considered that the "solid and homogenous" nature of this elevation would increase the building's perceived bulk and recommended greater articulation by way of different materials or other means.
4. We find that this elevation has been thoughtfully considered, with its lower sections broken up by a framework pattern and variations in materials. We acknowledge that Building C is a large building and it will be perceived as such. However, this is appropriate if the physical and strategic contexts support the development of such a building and it is well designed. As we have noted earlier, the context of this site is such that a building of this height and scale can be supported on this site. Further, we conclude that the building as presented to us is well designed.

Is the proposed parking provision and site access acceptable?

1. Residents were concerned, for various reasons, that the proposal would result in increased parking demand on local streets and increased danger from vehicles entering or leaving the site. Council was concerned that the residents of the A building group would not have satisfactory access to car parking spaces.
2. We have concluded that the provision of parking spaces, the layout and access to the site are generally acceptable, subject to some minor changes that can be implemented by permit conditions.
3. The first issue to be considered relates to the adequacy of the number of car parking spaces provided.
4. Car parking is to be provided in accordance with the requirements of the table to clause 52.06 or, if applicable, a Parking Precinct Plan specified in the schedule to the clause. A Parking Precinct Plan applies in this case. Under that plan, 204 car parking spaces should be provided on site.
5. We accept, from the submissions, revised drawing[5] and other evidence, that the 204 spaces provided on site meet the requirements of the Parking Precinct Plan. The implication of this is that a permit is not required to reduce car parking as the quantum of parking meets the requirements of Clause 52.06. Given that the proposal would provide the number of car parking spaces required under the planning scheme, we are not in a position to find that the amount of parking is unacceptable or to require additional parking. We acknowledge that the scheme indicates that the Parking Precinct plan should be reviewed and this has not apparently occurred. However, this does not invalidate the plan and we are obliged to accept its provisions as they stand.
6. The second issue relates to the layout of the parking areas.
7. Arguable points were raised by some residents that the layout of the parking areas, e.g. in terms of widths of traffic aisles, extent to which drivers must reverse, slope of bays, is not consistent with the requirements of Clause 52.06[6] or Australian Standard AS2890.1 - 1993, Part 1[7]. Mr. Montebello pointed out that, as the permit applicant had not sought a waiver from the requirements of Clause 52.06-3, the parking layout would have to comply with the strict provisions of Clause 52.06. Mr. Townshend submitted that as the parking layout was embodied in the application plans, permission is being sought for the layout shown. Further Mr Townshend argued that it is appropriate to include conditions on the permit to correct any aspect of the layout that we find unsatisfactory.
8. To some extent, the lengthy debate on this issue between Mr Montebello and Mr Townshend was 'academic'. Mr Falconer in particular raised several queries in relation to the car-parking layout. In response, Ms. Porter indicated that the permit applicant would agree to accept a condition requiring the car parking layout to comply with the Australian Standard. While Mr Montebello thought that this is unnecessary because the application does not seek to vary the car parking standards, nonetheless we consider it preferable that the permit make a clear statement by way of a permit condition(s) that changes to the car park layout, and as a consequence the plans, are required.
9. We have considered the matters raised by Mr Falconer and others in relation to the car parking layout. We conclude that there are a number of matters that should be corrected, such as width of access aisles and column positions. However, we are confident that these can be corrected and that this can be achieved by permit condition. Essentially, we accept Mr. Kiriakidis' proposition that these are matters of detail that can be refined when the drawings are further developed.
10. Ultimately we are confident that, given the scale of development, a satisfactory parking layout can be achieved and that resolution of this matter should be left in Council's hands.
11. Mr. Falconer also expressed concerns about the adequacy of sight lines for motorists exiting the site. Mr. Kiriakidis presented diagrams showing the sight lines for a driver exiting either of the driveways onto Grosvenor Street and faced with either of the two different sets of parking conditions that may occur on that street[8]. We are satisfied that, given the width of Grosvenor Street, the geometry of the Grosvenor Street/Westfield Drive intersection and the potential extent of kerbside parking, that the exits are appropriately located and configured.
12. We also accept Mr. Kiriakidis' evidence that the internal driveway can be operated as a two-way system, given the relatively low traffic volumes that are likely to be generated over the narrow part.
13. The third issue related to the fact that the proposal provides parking for Buildings A1, A2 and A3 (the A-group buildings) in the basement car park under Building C, with a vehicle entry to this car park opposite the A-group buildings but no separate pedestrian entry point.
14. Council was concerned that the "inconvenience" of residents having to walk to a relatively remote car park, including negotiating the garage door, would lead these residents to use the six on-street visitor parking spaces, thereby displacing visitors to the scarce on-street parking spaces. The parties seemed to agree that on occasions (Sundays in particular) there is a substantial demand for parking on local streets around the site.
15. We accept that, with the proposed layout, a logical parking allocation plan (which could be required as a permit condition) would place the parking spaces for residents of the A-group buildings close to the vehicle entry opposite these dwellings. Mr. Townshend indicated that the applicant is prepared to accept a permit condition requiring provision of a separate access door for these residents (which would obviate the inconvenience for residents of having to enter the car park by operating the, presumably more cumbersome, garage door). We also accept Mr. Townshend's submission that any misuse by residents of the visitor parking spaces is a matter that should be capable of adequate policing by the Body Corporate.
16. The residents were also concerned about increased parking demand in the site's locality - whether from parking overflow from this site or the consequences of displacing the existing parking for which the site presently caters. We have already concluded that we are unable to require more car parking, given that the parking precinct plan provision is met. Furthermore, while the site is currently used as a car park, Westfield is able to meet its car parking obligations without relying on this site. In other words, the site could be closed as a car park at any time.
17. We agree with Mr. Kiriakidis that Council has a general responsibility to manage on-street parking around Westfield Plaza. In our view, this involves a mix of both strategic and tactical decisions. As long as a particular use meets its obligations to provide parking required under the planning scheme, in terms of quantum and accessibility as this one does, external parking problems should not be allowed to affect the grant of a permit.

1. Residents were concerned that the increase in traffic on local roads would lead to loss of residential amenity and endanger the lives of children in the locality. They were also concerned about reduced safety on local streets and, particular, at the unsignalised Westfield Drive/Williamsons Road intersection. We have concluded that traffic volumes and traffic safety would remain within acceptable limits in the circumstances.
2. Mr. Kiriakidis had prepared predictions of the traffic flows that would occur on local access roads as a result of the completion of this and two other developments that have been approved in the vicinity but are not yet constructed[9]. Mr. Kiriakidis then tested the acceptability of the future estimated traffic with respect to what he referred to as the environmental capacity of the particular roads and the future traffic volumes that the Doncaster Hill Traffic Strategy[10] had projected. This strategy had projected, on the basis of other landuse strategies for Doncaster Hill and surrounding land,

The daily traffic volumes on short sections of the proposed access roads in Scenario D are expected to approximately double. This means that streets currently carrying up to 3000 vpd in 2001 may increase to 6000 vpd in the year 2021 assuming full build out at the Hill.

1. Mr. Kiriakidis estimated that on the basis of this and the other two nominated developments, daily traffic in Council Street, which gives access to Doncaster Road past the Doncaster Primary School, would rise from 3,100 to about 4,950 vehicles per day, while Westfield Avenue traffic would increase from 700 to about 2,000. We accept Mr. Kiriakidis opinion that both volumes are within the environmental capacity of their respective streets.
2. Furthermore, we note that Council's Assets and Engineering Unit had no objection to the proposed development's traffic impacts. Nevertheless, Council's planners reported "the practical cumulative impact on residents is a significant consideration" and included this as one of the recommended grounds of refusal.
3. Residents expressed concern about the passage of increased traffic past the primary school In Council Street, citing safety issues and Council's rearrangement of parking adjacent to the school. However, Council has adopted the Doncaster Hill Strategy, which anticipates that there will be a substantial increase in traffic past this school in the long term. While we accept that there will be an increase in traffic, nothing was put to us to demonstrate that this would result in safety issues. It is important to appreciate that the additional traffic generated by this proposal and the others that have been approved will not result in volumes that approach the volumes anticipated for Council Street in the 2002 strategic work.
4. We understand that the council has decided to undertake a strategic review of traffic in the area. This is appropriate given the implications for development in and around this principal activity centre. We have no technical evidence to conclude that the additional traffic gives rise to safety issues that warrant rejection of this proposal or that the 2002 work is flawed.
5. The other major issue raised by residents (though not Council) relates to the safety of the Westfield Drive/Williamsons Road intersection. VicRoads, having considered Mr. Kiriakidis' statement of evidence, has advised the Tribunal[11] that "no treatment/mitigating works are necessary, at this stage, for the Westfield Drive/Williamsons Road intersection" and that "VicRoads does not wish to place conditions on the permit should one be issued by the Tribunal".
6. In his evidence and in further response to cross-examination, Mr. Kiriakidis provided a detailed explanation of the modelling that he had undertaken to assure himself that the Westfield Drive/Williamsons Road intersection has sufficient capacity and an appropriate configuration to accommodate safely the anticipated increase in traffic. We acknowledge that the necessary modelling is complex and that Mr. Kiriakidis had to make further allowances for the fact that his most recent measures of traffic volumes in Williamsons Road and Westfield Drive could not include nearby schools, particularly St Gregory's, as his most recent survey was undertaken prior to schools recommencing after Christmas. However, the December 2008 surveys that he also relied on did take into account the operation of St Gregory's, and in particular, provided details of the number of vehicles that make a U-turn at the Williamsons Road Westfield Drive intersection. These surveys are not very old and provide a reasonable basis on which to assess the performance of the intersection when the school is operating.
7. In the absence of any conflicting technical evidence and with Council's engineers' and VicRoads' acceptance of Mr. Kiriakidis' analysis, we also find that the Westfield Drive/Williamsons Road intersection will operate in a satisfactory way and with adequate capacity after the construction of this and the two nominated developments. It may be that, with the further development of the residential areas to the north and east of Doncaster Plaza, this situation may change and VicRoads may need to undertake mitigating works to this intersection. However, that possible future situation is not one that bears on our decision in this case.
8. We have concluded that, given the site's physical and policy context, the resultant increase in traffic volumes is acceptable.

Would the proposal cause an unreasonable loss of amenity for neighbours?

1. Some evidence and submissions supported a view that the eastern elevations of the A-group buildings should be improved through increased in articulation, further set back in part or reduced in height. Concerns were also raised about the loss of existing vegetation along the east boundary.
2. The eastern elevations of each of the three A-buildings proposed are to be about 18 metres wide and 9.5 metres high, with a central step resulting in one half of the elevation set back about one metre from the other. The half that is nearer to the boundary would fail to meet Clause 55 standard B17 by about 1.07 metres.
3. Council's grounds of refusal did not refer to this matter and Council did not address any issues in relation the siting or scale of the A-group buildings. However, Mr. Hutson considered that their eastern elevations were "relatively bland" and would make, in part, a small incursion into the ResCode setback guideline, implying a slightly excessive height[12] or inadequate setback. He suggested that the setback issue could be resolved by "flipping" the nearer part of each building away from the boundary. Mr. Schwartz was concerned about the general bulk, shading and overlooking of his rear garden, which provides the landscaped setting for his rear living room.
4. The architects provided an axonometric perspective that indicates a possible variation to the eastern elevations of these building to create greater visual variety to these elevations. Suggestions put forward include arranging the stair setback as a transition between the setbacks of the walls to either side, introducing vertical fins beside vertical windows, use of additional colours and use of translucent glazing to avoid overlooking.
5. We do not accept that vegetation alone would solve the overlooking potential (some windows are only about 3.6 metres from the rear fence) and translucent glass or screening is required. This can be implemented by conditions.
6. With respect to the "relative blandness" of the elevations, we do not consider that any change to their architectural details is required. In our view, the suggested changes involved a degree of contrivance. We believe that it is appropriate for architecture in an area of expected change to be of a scale and character appropriate to the future urban character of the locality as envisaged by Council's strategies. Again, with respect to the small incursion of building height into that in the B17 standard, we consider this acceptable in the particular circumstances of policy-driven change at this location.
7. The shadow diagrams indicate that the shading of the gardens to the east of the A-group buildings would not commence until close to 2:00 PM at the equinox. While no one gave us a detailed analysis beyond this, it is clear that if the shading does not satisfy Standard B21 of Clause 55 it is so close that we accept that, given the policy for substantial change for this area, the proposal also satisfies the relevant objective. We find this satisfactory.
8. Mr. Schwartz was concerned about the loss of established vegetation along the eastern site boundary. Mr. Fraser acknowledged that the landscape plan was only a concept at this stage and could be improved with further investigation. He asserted that while some trees (e.g. between Buildings A2 and A3) would be unavoidably lost because of building works, he would like to retain as much "non-tree vegetation" as would be feasible and would choose, for new trees, species suitable for the proposed space east of the new buildings. We note Mr. Fraser's comment that his landscape plan is conceptual and that there is opportunity for it to undergo significant improvement through its detailing.
9. It is desirable for existing vegetation to be retained when appropriate. Such vegetation would need to be appropriate for the site and development, be of good quality and have a reasonably long useful life. As suggested by Mr Fraser, the landscaping along the east boundary can be reviewed, with the aim of retaining appropriate vegetation and for it to be enhanced with more planting when the final concept is prepared. Again, this is a matter than can be dealt with by permit conditions.

1. Mr. Townshend submitted that we should not specify the number of dwellings in the preamble to a permit, in order to provide Council with the flexibility to approve later adjustments. He argued that the drawings effectively identify the permitted number of dwellings. Mr. Montebello opposed this, but also submitted that an acceptable alternative would be to identify the number of dwellings in a sub-section of Condition 1.
2. In our view it is not necessary to specify the exact number of dwellings. It is likely that there will be changes, although it is unclear whether that would be upwards or downwards. We do not expect the figure to be significant. Either way, the number of dwellings will need to generally fit into the buildings that we have approved. Whether the number of dwellings increases or decreases through variations, other requirements such as the number of car parking spaces to be provided will need to match the permission granted. Ultimately, it will be up to the council to decide if the degree of change is acceptable. In the event that there is a dispute, the matter can be the subject of an application to the tribunal.
3. Mr. Townshend requested that we refer specifically to Drawing TP.03/A, which contains an amended carparking layout which contains the number of parking spaces that Council accepts as required. This is appropriate.
4. Mr. Montebello sought, and we accept, a Condition requiring the provision for a separate pedestrian access to the eastern entry to the car parking basement. This is also appropriate.
5. Mr. Townshend agreed to a further provision in the condition requiring amended plans for "roof plant and equipment to be located and screened to the satisfaction of the responsible authority". We have included this.
6. We have also noted our intention to include a requirement for additional screening of east-facing windows of the A-group buildings.

We agree with Mr. Townshend that Condition 3(d) ("encouraging a beyond compliance approach ..." is too uncertain as to its effect. As Mr. Townshend put it, reads better as policy, not a permit condition, and so have deleted it.

1. Condition 5 requires that a waste management plan. We agree with Mr Townshend that the condition is too prescriptive. Ultimately, the applicant will need to prepare a plan to the council's satisfaction.
2. Condition 13 (a centralised antenna) is too inflexible and, we believe, unnecessary, given the appropriate screening requirement for rooftop equipment that we have added to Condition 1. We have simplified condition 14 (undergrounding of services) to provide some flexibility, as suggested by Mr. Townshend and not opposed by Mr. Montebello. We have referenced Mr. Fraser's landscape plan in Condition 15. We see no reason to delete the landscape bond of $10,000, as this provides in our view an effective means of ensuring compliance. We have simplified Condition 19 to a more general form and deleted condition 27, both as accepted by Mr. Montebello.
3. As agreed by the parties, we have added a condition requiring the permit applicant to prepare a parking-management plan.
4. Mr. Townshend sought a longer time to commence and finish the development. Council's proposed condition 32 adopts the standard two and four years for commencement and completion. We agree with Mr. Townshend that, for such a large complex, the standard time limits are unreasonable and have amended this to 4 and 7 years respectively.

1. As set out above, we have concluded that the proposed development is appropriate in terms of scale, building details, traffic impacts and parking provision. The most important factor in our decision is the combination of metropolitan policies seeking increased housing provision around principal activity centres and Council's supporting suite of policies for Doncaster Hill and its adjoining residential areas.

1. Before the use and development starts, three copies of amended plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the plans submitted with the application prepared by Rothe Lowman Architects, dated December 2008 Ref No. TP.01.1, TP01.2, TP01.3/A, TP01.4, TP01.5 - TP01.10, TP02.1/A - TP02.9/A, TP05, but modified to show:

1. Separate pedestrian access to the eastern side of the basement car parking area for the occupiers of Building A. 2. Roof plant and equipment located and appropriately screened

1. Additional screening to the east-facing windows of Buildings A1, A2 and A3.

1. Car parking layout modified to be generally in accordance with the requirements in accordance with clause 52.06 of the planning scheme.

All of the above must be submitted to the satisfaction of the Responsible Authority.

1. The layout of the site and the size of buildings and works shown on the approved plan must not be modified for any reason, without the written consent of the Responsible Authority.
2. Before the development starts, three copies of an amended Sustainability Management Plan must be submitted to and approved by the Responsible Authority. When approved the plan will form part of the permit. The plan must address, but not be limited to, the following:

1. Identify how the development will achieve the sustainability objectives of the Municipal Strategic Statement, Clause 21.21 Doncaster Hill Activity Centre; 2. Identifying responsibilities and timings for achieving the above objectives;

1. Identifying key performance indicators which give effect to the relevant policy and statutory obligations;

1. Demonstrate that the design elements, technologies and operational practices that comprise the Sustainability Management Plan can be maintained over time; 2. The individual components of the Sustainability Management Plan should address: 1. Building Energy Management; 2. Water Sensitive Urban Design; 3. Construction Materials; 4. Indoor Environmental Quality; 5. Waste Management; 6. Transport; and 7. Demolition and Construction.
2. Before the development starts, three copies of a Construction Management Plan must be submitted to and approved by the Responsible Authority. When approved the plan will form part of the permit. The plan must address, but not be limited to, the following:

1. Hours of demolition and construction; 2. Methods to contain dust, dirt and mud within the site, and the method and frequency of clean up procedures;

1. The protection measures for site features to be retained (e.g. vegetation, retaining walls, buildings, other structures and pathways, etc); 2. Delivery and unloading points and expected frequency; 3. A liaison officer for contact by residents and the responsible authority in the event of relevant queries or problems experienced; 4. The movement of construction vehicles to and from the site must be regulated to ensure that no traffic hazards are created in and around the site; 5. Parking facilities for construction workers; 6. Measures to minimise the impact of construction vehicles arriving at and departing from the land; 7. An outline of requests to occupy public footpaths or roads, and anticipated disruptions to local services; 8. The processes to be adopted for the separation, re-use and recycling of demolition materials;

1. The measures to minimise the amount of waste construction materials; the provision for the recycling of demolition and waste materials; and the return of waste materials to the supplier (where the supplier has a program of reuse or recycling);

1. The measures to minimise noise and other amenity impacts from mechanical equipment and demolition/construction activities, especially outside of daytime hours; 2. The provision of adequate environmental awareness training for all on-site contractors and sub contractors; and 3. An agreed schedule of compliance inspections.
2. Before the development starts, an amended Waste Management Plan must be submitted and approved to the satisfaction of the Responsible Authority. When approved the plan will form part of the permit.
3. Before the development starts, three copies of a Parking Management Plan must be submitted to and approved by the Responsible Authority. When approved the plan will form part of the permit. The plan must address, but not be limited to, the allocation of parking spaces to visitors and residents of the different buildings and different types of dwelling to the satisfaction of the Responsible Authority. The Responsible Authority may approve amendments to the Parking Management Plan.
4. Before the development starts, a Disability Access Plan that implements the recommendations of a Disability Access Audit, prepared by a suitably qualified person that demonstrates compliance with the relevant Australian Standards for access, including AS1428 Part 2, must be submitted and approved to the satisfaction of the Responsible Authority. When approved the plan will form part of the permit. The plans must include but is not limited to:

1. Vehicular and pedestrian access into the building; 2. Access to the lifts;

1. The provision of Braille indicators for the lifts; 2. The use of contrasting paving materials to assist the vision impaired; 3. Emergency exits, particularly above the ground floor; and 4. Car parking.
2. The Management Plans approved under conditions 3, 4,5,6 and 7 of this permit must be implemented and complied with at all times to the satisfaction of the Responsible Authority unless with the further written approval of the Responsible Authority.
3. Any low impact telecommunications facility must be located in or immediately joining the plant or roof screened and of a colour to reduce it's visibility to the satisfaction of the Responsible Authority.
4. Any air conditioning unit installed on balconies must be obscured from Public view or the view of an adjoining residential property to the satisfaction of the Responsible Authority.
5. Any drying of clothing on balconies must be obscured from the public view of an adjoining property to the satisfaction of the Responsible Authority.
6. Before the completion of the development, a Development Contribution as agreed by the Responsibility Authority in accordance with Clause 45.06 Development Contributions Plan Overlay Schedule 1 - Doncaster Hill Development Contributions Plan must be paid to the Responsible Authority.
7. All services must be installed underground or otherwise located to the satisfaction of the Responsible Authority.
8. Before the development starts, a landscaping plan generally in accordance with the landscape master plan attached to the report dated 2 December 2009 by Land Design Partnership Pty Ltd, must be prepared by a landscape architect or a person of approved competence showing species, locations, approximate height and spread of proposed planting, to the satisfaction of the Responsible Authority. This must include the review of existing vegetation along the east boundary, the retention of vegetation where appropriate and the inclusion of new planting to provide a landscape buffer to the properties to the east. This plan must be submitted to the Responsible Authority for approval and, when approved, will become part of the permit.
9. Before the occupation of the building hereby permitted, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.
10. Before the release of the approved plan, a $10,000 cash bond or bank guarantee must be lodged with the Responsible Authority to ensure the completion and maintenance of landscaped areas and such bond or bank guarantee will only be refunded or discharged after a period of 13 weeks from the completion of all works, provided the landscaped areas are being maintained to the satisfaction of the Responsible Authority.
11. An in-ground, automatic watering system linked to the rainwater tanks in the basement must be installed to the main garden areas to the satisfaction of the Responsible Authority.
12. The owner must prepare a storm water management plan to the satisfaction of the Responsible Authority. When approved, the plan will become part of the permit. The plan may be amended to the satisfaction of the Responsible Authority.
13. Before the development starts, construction plans for the on site storm water detention storage system must be submitted to and approved by the Responsible Authority. The detention system must be maintained thereafter in accordance with construction plans by the owner to the satisfaction of the Responsible Authority.
14. Before the construction of vehicle crossings, the applicant is to obtain a Miscellaneous Works Permit and construct the crossings to the satisfaction of the Responsible Authority.
15. All engineering works relating to access, parking and drainage must be carried out in accordance with detailed construction plans which have been approved by the Responsible Authority prior to the commencement of site works.
16. All car spaces must be line marked and must only be used for parking vehicles.
17. The parking area must be sign posted to the satisfaction of the Responsible Authority.
18. The Owner shall pay the full costs of all roadworks, service relocations, drainage, and other costs associated with the development.
19. An intercom system must be provided at the ramp entrance to the residential car park area to the satisfaction of the Responsible Authority.
20. All noise emanating from any mechanical plant (air conditioners etc.) on the site must comply with the State Environment Protection Policy N-1.
21. External lighting must be designed to limit loss of amenity to residents of adjoining properties, to the satisfaction of the Responsible Authority.
22. Once the permitted development has commenced it must be continued and completed to the satisfaction of the Responsible Authority.
23. Buildings, paved areas, engineering works, fences, landscaping and all external areas must be maintained to the satisfaction of the Responsible Authority.
24. This permit will expire if one of the following circumstances apply:
    1. the development and use are not started within three (3) years of the date of the issue of this permit; and
    2. the development is not completed within three (3) years of the commencement of the development.

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

1. The following additional persons are parties to this review:
   • E. L. Cutts
   • T. Menelle & N. Seresli
   • A Girardi & P. Girardi
   • M. & R. Salvitti
   • R.L. Moye
   • L. Wang
   • L. Peterson
   • M. Wang
   • Pei Hong Gong
   • Kai Lou
   • D. Micallef
   • K. & S. Sedghi
   • R. & J. McDonald
   • B. & M. Povazan
   • G. Schinas
   • D. Agouras
   • H. E. & P. D. Leigh
   • M. Incani
   • V. Yan
   • R. & W. Bardon
   • E. Lidis & A. Arberoris
   • D. Grieve
   • V. Grieve.

[1] At the time of Council's decision, the site was in a Business 1 zone and a Design and Development Overlay, Schedule 6. In a general sense at least, the provisions of DDO6 were incorporated into Schedule 1 of the Activity Centre Zone that has now replaced the Business 1 Zone, though there was dispute as to whether this incorporation was policy neutral, as the planning scheme amendment's Explanatory Statement asserted, or something more.

[2] Not, of course, to overlook Council's and, in particular, residents' concerns about traffic, parking and neighbours' amenity, but overall we judged these matters to be subsidiary to the dominant issue of the proposed buildings' overall scale.

[3] Building C's height is 9 storeys at its central corner, which is on the highest area of the site, but is 11 storeys (including the exposed end of the upper level of parking) at the ends of each of its two wings.

[4] Madden Group Pty Ltd v Darebin CC [2010] VCAT 9

[6] Specifically, the requirements of Clauses 52.06-2 and 52.06-3.

[7] The Manningham Planning Scheme requires compliance with Clause 52.06-3 (subject to the grant of a permit to vary any dimension or requirement of this clause) but only refers to the Australian Standard as one of several matters to be considered in exercising any discretion to allow a variation to the requirements of Clause 52.06-3.

[8] Parking restrictions vary in Grosvenor Street. There are times when no parking is possible while at others parking is possible on both sides. This has implications on visibility and sightlines from the entry/exit points.

[9] 6-12 Berkley Street and corner of Tower and Berkley Streets

[10] Doncaster Hill Strategy Traffic Modelling and Analysis (September 2002, prepared as one of the studies Council undertook to prepare the Doncaster Hill Strategy (2002), a reference document in the Manningham Planning Scheme (Clause 21.16).

[12] Clause 55 (i.e. ResCode) does not apply because the A-group buildings, even though only three-storey and standing separate from the taller buildings, are part of "a development of four or more storeys). However, because of their freestanding nature, it would be hard to argue that the standards of Clause 55 do not provide useful guidance.