Construct a building or construct or carry out works in the Design and Development Overlay Schedule 21.

Construct a building or construct or carry out works in the Special Building Overlay Schedule 2.

Reduce the number of car parking spaces required under Clause 52.06-5 for offices and shops.

Alter access to a road in a Transport Zone 2 by reinstating a redundant crossing in Malvern Road.

1. Conditions in the permit are amended as detailed in Appendix A.
2. The responsible authority is directed to amend the permit and issue an amended permit to the owner of the subject land pursuant to s 91 of the Planning and Environment Act 1987 (Vic).

Nicola Collingwood, barrister, instructed by Tristan Layton, lawyer, Planning & Property Partners Pty Ltd. They called the following witnesses:

• Kel Twite, town planner, Urban Planning Collective Pty Ltd
• Amanda Roberts, urban designer, LatStudios

The evidence of Kim Stapleton, architect, Pointilism Pty Ltd (photomontages) was tendered. Mr Stapleton was not called to give oral evidence.

Gareth Gale, town planner, Gareth Gale Consulting Pty Ltd

Construction of a seventh level (sixth floor) to an approved six-storey (plus basements) mixed-use development. The additional floor level would increase the height of the approved building and contains a large, three-bedroom apartment. Other changes include replacing the offices on the third floor with apartments, changing the configuration of apartments on the fourth and fifth floors and introducing a third basement level, increasing the total number of car spaces from 70 to 84. The total number of dwellings is increased from nine to 13.

Application under s 87A of the Planning and Environment Act 1987 (Vic) to amend planning permit 0957/20, issued at the direction of the Tribunal.

Adjacent to a road in a Transport Zone 2 ('TRZ2') (Malvern Road)

Design and Development Overlay Schedule 21 - Hawksburn Village Neighbourhood Activity Centre ('DDO21')

Special Building Overlay Schedule 2 - Drainage System - Stonnington City Council ('SBO2')

Clause 34.01-4 - to construct a building or construct or carry out works on land in C1Z.

Clause 36.04-2 - to construct a canopy above the Malvern Road footpath in the TRZ2.

Clause 43.02-2 - to construct a building or construct or carry out works in DDO21.

Clause 44.05-2 - to construct a building or construct or carry out works in SBO2.

Clause 52.06-3 - to reduce the number of car parking spaces required under cl 52.06-5 (for offices and shops).

Clause 52.29-2 - to alter access to a road in a TRZ2 (Malvern Road).

The subject land comprises five lots located on the north side of Malvern Road, between Cromwell Street and Hobson Street. The irregular land holding has a combined frontage of 37.1 metres, a maximum depth of 42 metres and an overall site area of 1468 square metres.

Two-storey commercial buildings occupy the land, with at-grade car parking located at the rear, accessed via McKillop Street.

An unaccompanied site inspection was undertaken prior to the hearing, on 18 October 2025, as advised to the parties.

1. Planning permit application 941/16 was lodged with the Stonnington City Council ('Council') in 2016 for the construction of a seven-storey mixed use development at 387-403 Malvern Road, South Yarra ('subject land'). The application was refused by Council and an application made to the Tribunal for a review of Council's decision. In proceeding P253/2017, the Tribunal set aside Council's decision and directed the grant of a permit, subject to conditions, including the deletion of a floor level.

Figure 1: South elevation of the Revision A 'decision plans' dated 21 October 2016 in proceeding P253/2017, showing the proposed seven-storey building. Condition 1(a) in planning permit 941/16 ('the 2017 permit') required the deletion of the fifth floor (Source: Council submission attachments).

Figure 2: Cropped photomontage evidence in the 2017 hearing, extracted from the Council's submissions.

1. Level 5 setbacks in the Revision A plans (being the plans considered by the Tribunal in proceeding P253/2017) are nominated as 4.8 metres from the southern boundary (3.0 metres to the planter box); 3.0 metres to 3.35 metres from the eastern side boundary; and constructed in part to the western side boundary, increasing to 2.7 metres.
2. Level 6 setbacks in the Revision A plans are nominated as 9.65 metres from the southern boundary (6.0 metres to the planter box); 8.4 metres to 9.15 metres from the eastern side boundary; and 8.5 metres from the western boundary.
3. The Level 6 roof is nominated in the Revision A plans as RL 40.1, which equates to a maximum building height of approximately 23.26 metres.
4. Plans were endorsed under the 2017 permit on 21 September 2018 and were later amended on 5 June 2019.

Figure 3: South elevation of plans endorsed on 5 June 2019 under the 2017 permit, showing the approved six-storey building (Source: Council submission attachments).

1. The 5 June 2019 endorsed plans depict the roof parapet at RL 37.8, equating to a maximum building height of 20.5 metres.
2. Council approved a number of extensions of time to commence the development allowed by the 2017 permit. The permit expired on 8 August 2025 as the development has not commenced.[2]

1. On 17 March 2022, planning permit 0957/20 ('the 2022 permit') was issued at the direction of the Tribunal for a six-storey mixed-use development on the subject land. Plans were endorsed under the permit on 31 August 2022.

Figure 4: South Elevation of plans endorsed on 31 August 2022 under the 2022 permit (Source: Council submission attachments).

1. The development has not started. Council has granted an extension of time to commence and complete the development.
2. The date for the commencement of the development has been extended to 17 March 2027. The date for the completion of the development has been extended to 17 March 2029.
3. An application under s 87A of the Planning and Environment Act 1987 ('PE Act') was made to amend the 2022 permit and endorsed plans in 2023.[3]
4. Key amendments sought included changes to the configuration of the retail and office tenancies, replacement of the office tenancies on Levels 4 and 5 with a total of nine dwellings, reduction in the number of car parking spaces from 89 to 70, increased bicycle parking spaces from 47 to 72, raised floor to ceiling heights and overall increase in height by approximately 1.5 metres.
5. An agreement was reached between the parties at a compulsory conference to amend the description of what the permit allows and to amend Conditions 1, 4, 5, 7 and 14 and insert Conditions 36 and 37. Relevantly, Condition 1(f) states:

(f) Reduction in overall building height by 0.3 metres (Roof RL 38.100m).

1. Plans have not been endorsed following the issue of the amended permit.

Figure 5: South elevation of the Revision C 'decision plans' described in Condition 1 in the 2022 permit, as amended following P1613/2023, which shows the roof parapet of the six-storey building having a height of RL 38.1 (Source: Council submission attachments).

1. Parties in this proceeding do not agree on what Condition 1(f) requires.
2. Council and the applicant submit the condition 'has no work to do' as the agreement between the parties was for the maximum height of the building to be reduced to RL 38.1, as is depicted in the Revision C 'decision plans' that formed the basis for the agreement.
3. Michael Bromby, Linda Fox & Others ('respondent') reside in the apartment building at 2 Cromwell Road, abutting to the north and north-west of the subject land. They were a party in proceeding P1613/2023 and submit the condition requires the building height to be reduced by 300 millimetres from RL 38.1. Even if they are incorrect, the respondent does not agree with the applicant that the plans before me satisfy Condition 1(f) because the top of Level 5 (being the top of the Level 6 planter) has a height of RL 38.76, some 0.66 metres above RL 38.1, and the top of Level 6 has a height of RL 41.46, some 3.36 metres above RL 38.1.
4. Level 5 setbacks in the Revision C plans are nominated as 6.0 metres from the southern boundary (2.74 metres to the planter box); 5.89 metres to 6.37 metres from the eastern boundary; and 4.84 metres from the western boundary.
5. The Revision C plans depict a maximum overall building height of 21.2 metres (measured to RL 38.1).

1. On 16 June 2025, the applicant made this application to the Tribunal to amend the 2022 permit under s87A of the PE Act. Central to this proceeding is the proposed addition of one floor to the approved development.
2. The applicant applied to amend the application by substituting amended plans dated 29 September 2025, which I will refer to as the 'Revision 1 plans'.
3. At the commencement of the hearing, I amended the application by substituting the Revision 1 plans for the application plans without objection from any party.
4. Key amendments shown in the Revision 1 plans include:
   • Combined two apartments into one on Level 6, for a total of 13 apartments.
   • Increased Level 6 building setbacks from the south, east and west boundaries.
   • Increased the Level 6 planter box to wrap around the balcony.
   • Level 5 floor level reduced from RL 34.75 to RL 34.24 (-510mm).
   • Level 4 floor level reduced from RL 31.40 to RL 30.87 (-530mm).
   • Level 3 floor level reduced from RL 27.90 to 27.50 (-400mm).
   • Level 2 floor level reduced from RL 24.40 to RL 24.20 (-200mm).
   • Podium concrete colour changed to match brickwork colour at Level 3.
   • Revised shape of canopy on Malvern Road, from curved to rectangular with chamfered edges.

Figure 6: South elevation, showing the proposed seven-storey building (extracted from the Revision 1 plans).

Figure 7: Cropped photomontages depicting the proposal shown in the Revision 1 plans (Source: Kim Staplelton's evidence statement in VCAT proceeding P553/2025, dated 13 October 2025).

1. Level 5 setbacks in the Revision 1 plans are nominated as 6.01 metres from the southern boundary (3.31 metres to the planter box); 5.882 metres to 6.3 metres from the eastern side boundary; and 4.77 metres from the western side boundary.
2. Level 6 setbacks in the Revision 1 plans are nominated as 8.8 metres from the southern boundary (5.995 metres to the planter box); 7.335 metres to 8.05 metres from the eastern side boundary; and 6.457 metres from the western boundary.
3. Relevantly, the height to the top of the Level 6 roof parapet is RL 41.46[4] and the height to the top of Level 5 (being the top of the Level 6 planter box) is RL 38.76. This equates to a maximum building height of approximately 24.5 metres.[5]

1. The Council and respondents[6] oppose the amendment application. The focus of this dispute is the addition of a seventh storey[7] and measures to protect the privacy of dwellings located to the north and north-west of the subject land.
2. Based on the submissions, the key issues for determination in this proceeding may be expressed as follows:
   • Is the application inconsistent with the 'King David' and 'repeat appeal' principles?
   • Will the amended development be an acceptable built form outcome?
   • Will there be any unacceptable impacts on the amenity of nearby residential properties?
3. Section 87A(1) of the PE Act provides 'the Tribunal may cancel or amend a permit that has been issued at its direction if it considers it appropriate to do so'. This is evidently a broad scope and discretion.
4. I must decide whether to amend the permit and, if so, whether the proposed amended conditions should apply to the permit.
5. Having considered the submissions and evidence, with regard to relevant case law, the relevant policies and provisions of the Stonnington Planning Scheme ('Scheme') and assisted by my inspection, I have decided to allow the application. My reasons follow.

1. Plan for Victoria[8] sets the Statewide vision for how Victoria will grow over time.
2. Table 1 and Map 3 in Plan for Victoria identifies 'Hawksburn Station' - which the applicant submits includes the subject land - as an 'Activity Centre - Housing Choice and Station', being 'an activity centre with sufficient public transport, facilities and services to be the location for large numbers of new homes'.[9]
3. This is consistent with the 'Melbourne Settlement Framework Plan' at cl 11.01-1R, which identifies Hawksburn Station as an 'Activity Centre - Housing Choice and Station'.
4. New planning controls will be introduced for Hawksburn Station and 59 other activity centres that will 'include centre-specific provisions for taller buildings at the centre's core and low-rise apartments and townhouses within walking distance of the core'.[10]
5. Policies and strategies detailed at cl 11.01-1L-01, 11.01-1R, 11.03-1S and 11.03-1L-01 promote development in activity centres to make greater and more efficient use of existing infrastructure and services. These include:

Focus investment and growth in... Activity Centres - Housing Choice and Stations.

Build up... Activity Centres - Housing Choice and Stations... as a focus for high-quality development, activity and living that:

• Are a focus for business, shopping, working, leisure and community facilities.
• Provide different types of housing, including forms of higher density housing.
• Are connected by transport.
• Maximise choices in services, employment and social interaction.

Encourage a diversity of housing types at higher densities in and around... Activity Centres - Housing Choice and Stations and their residential catchments.

Reduce the number of private motorised trips by concentrating activities that generate high numbers of (non-freight) trips in highly accessible activity centres.

Improve access by walking, cycling and public transport to services and facilities.

Improve the social, economic and environmental performance and amenity of activity centres.

1. The Strategic Framework plan at cl 02.04 identifies the subject land as located within the Hawksburn 'Neighbourhood Activity Centre (large)' and identifies Malvern Road as a tram/bus priority route and 'pedestrian priority'.
2. Clause 02.03-1 (Settlement - Activity Centres) builds on this framework plan, stating:

Stonnington's activity centres range from clusters of local shops to one of Australia's most famous shopping strips, Chapel Street, and the nation's largest stand-alone shopping centre, Chadstone. These major centres serve large regional catchments well beyond the City and are the focus of a large number of entertainment uses.

There is a comprehensive network of activity centres across the City, each with their own identity and all having access to public transport.

The vibrancy, safety, heritage and unique character of different centres is highly valued.

Council seeks to enhance the network of activity centres by:

• Consolidating the activity centre hierarchy by supporting change appropriate to the role and position of each centre as shown in the table below.
• Protecting and enhancing the human scale, individual character, identity, heritage values and amenity of the different activity centres in the City.
• Ensuring development contributes to the activity and passive surveillance of streets and public spaces.
• Directing higher density development to locations in and adjacent to activity centres, the Principal Public Transport Network, and away from the residential hinterland.
• Managing the amount and location of residential development in activity centres to ensure it does not diminish future opportunities for retail and commercial expansion in core areas.
• Encouraging a well-distributed network of vibrant activity centres, providing a diversity of living, working, shopping and socialising opportunities at the heart of local neighbourhoods.
• Supporting Chapel Street and Chadstone as premier retail and tourism destinations.

1. The table to cl 02-3-1, describes large neighbourhood activity centres as 'larger local centres catering for everyday needs and wider specialty retail, office and service markets'. The following strategic directions are provided for Hawksburn Village:

Strengthen the neighbourhood role of the activity centre as a specialty retailing destination and ensure it continues to function as a sustainable and viable centre.

Establish a more diversified land use mix.

Retain employment areas on ground and first floors and encourage residential uses above these.

1. Clause 02.03-4 identifies key challenges in this municipality in planning for growth:

Stonnington is experiencing medium to higher density development activity within its activity centres, particularly in the City's Major and Neighbourhood Activity Centres. This is expected to continue as there is a need to provide housing in well serviced areas.

Most buildings in these activity centres will be built out to the street frontage, where a fine grain building rhythm for retail and office is encouraged. Upper level setbacks will reduce visual bulk, minimise overshadowing and protect the prominence of heritage places.

A key challenge is upholding and restoring the City's distinctive built form and landscape character, protecting heritage buildings, key landmarks, important vistas and riverside environs while encouraging appropriate high quality new development.

1. An objective of cl 11.03-1L-01 (Activity centres) is 'to protect and enhance the individual character, identity and amenity of the different activity centres'. Built form strategies to achieve this include the following:

Manage the scale, density and design of commercial development to reflect the character and identity of each centre.

Direct higher built form to major activity centres.

Design development in neighbourhood activity centres to be consistent with the existing and preferred scale and character of the centre.

Design higher built form so that it minimises impacts on the streetscape and does not dominate the heritage values and the human scale of the traditional retail strips including by:

• Setting back built form elements that extend above street walls of 2-3 storeys behind the façade, unless a higher podium meets the preferred character of the area.
• Facilitating setbacks from side boundaries above podium level that provide a separation between towers, in context with the area (or otherwise in accordance with an approved structure plan or urban design framework).

...

Provide for additional housing in activity centres and mixed-use areas where it respects the character and amenity of adjoining dwellings and does not compromise the primary commercial and cultural role of activity centres.

1. In relation to building height, development should respect the scale and height of any defined character precinct and be designed to enhance the City's main streets. Development that is significantly higher or lower in height than the surrounding buildings is discouraged, unless a different preferred height is specified.[11]
2. The purpose of the Commercial 1 Zone ('C1Z') includes:

To create vibrant mixed use commercial centres for retail, office, business, entertainment and community uses.

To provide for residential uses at densities complementary to the role and scale of the commercial centre.

1. The attributes of the subject land, being a large, consolidated land holding within a large neighbourhood activity centre and having a commercial zoning, provide an opportunity for development. However, this is tempered by the application of the Design and Development Overlay Schedule 21[12] ('DDO21') and the abuttal with dwellings to the north and north-west, which I address below.
2. I am satisfied the proposal is consistent with the purpose and provisions of the zone and with the relevant policies in the Scheme, subject to the changes I set out below. It will, amongst other things:
   • Contribute to employment and the local economy; and
   • Encourage the use of alternative transport modes, including public transport, given its proximity to both trams and trains.

IS THE APPLICATION INCONSISTENT WITH THE 'KING DAVID' AND 'REPEAT APPEAL' PRINCIPLES?

1. Council and the respondent submit the addition of the Sixth Floor, which includes a planter box around the perimeter of the floor slab that reads as the parapet of the Fifth Floor and has a height exceeding RL 38.1:
   • Undermines the previous Tribunal's findings relating to the 2017 permit and seeks to 'win back' what the Tribunal deleted; and
   • Undermines and seeks to 'win back' concessions foregone relating to a reduction in the height of the building by 300 millimetres, in a Compulsory Conference relating to the 2022 permit;

so is inconsistent with the King David[13] principles which cautions against using the permit amendment process to revisit or substantially alter the outcome of a mediated or Tribunal-issued permit without 'good and sound reason'.

1. Council submits there has been little change to the facts and circumstances, noting:
   • Only a modest amount of time has elapsed since the agreement was reached in May 2024;
   • The applicant and parties in this proceeding are the same as those in May 2024; and
   • Strategic policy has changed little, with the DDO21 remaining unchanged, as has much of the policy that applies specifically to the subject land.
2. The applicant disagrees, submitting Council's grounds misapprehend the King David decision and the way the Tribunal has since applied the principles that emerge from that case ('the King David principles'), which the applicant says are of narrow application and cannot be applied to prevent the testing of new or modified proposals against Scheme provisions. Rather, they are directed to the misuse of the Tribunal's processes and seek to discourage unfair outcomes.
3. The applicant submits the issues of King David do not arise in this matter, as the proposal is for a different proposition to that before the Tribunal in the 2023 proceeding, and in relation to the 2017 proceeding, there has been a significant elapse of time.
4. In relation to the 2017 proceeding, the applicant notes the 2017 decision required the removal of Level 5, being a large floorplate, and made several findings, including the following:
   • The village feel of the Hawksburn activity centre, as derived from the relatively low scale of buildings.
   • The breadth of Level 5 as it presents to Malvern Road.
   • Level 5 adding to the mass of the proposed scheme, resulting in a dominant and overbearing presence in the streetscape.
5. The applicant submits the current proposal does not give rise to the same issues that were of concern to the Tribunal in 2017, for the following reasons:
   • The improved massing and architectural composition of the current proposal. In particular, the 2017 scheme proposed limited side setbacks forming a solid, five-storey building base. Whereas the proposed building expresses a distinct three-storey street wall and adopts a horizontal language for the recessed levels above.
   • The Hawksburn Village Structure Plan is now complete, was updated in 2020, is referenced in the Scheme, and has been the subject of a Panel hearing and report to consider the introduction of DDO21, which is now implemented.
   • The Panel report found that discretionary heights provide appropriate flexibility to respond to specific site conditions that create opportunities for greater yields, such as land consolidation.
   • The activity centre has experienced continuous change, as evidenced by the number of five-storey developments as sought by DDO21, constructed or approved.
   • The upper floor is secondary to the levels below and has a noticeably reduced footprint from that previously considered in 2017.
6. The applicant, however, acknowledges the Level 5 planter encroaches above RL 38.1, but submits the application must be assessed on its merits. If the Tribunal thought it desirable, the applicant submits a permit condition can be included requiring the Level 6 balustrade to be set back 500 millimetres so as to reveal and express the floor slab at RL 38.100. I will return to this later in these reasons.

1. The parties took me to a number of decisions relating to the concept of 'repeat appeals', notably including Rosemary Zumpano v Banyule City Council[14] ('Zumpano'), Sprut Pty Ltd v Stonnington CC[15] ('Sprut') and Burton & Carter Pty Ltd v Frankston CC[16] ('Burton'). I do not intend to repeat the discussions of the parties but agree with the applicant that, consistent with these authorities, the task of the Tribunal is to assess the current proposal afresh and on its merits. In doing so, it is appropriate to assess whether the proposal represents an acceptable planning outcome.
2. It is also relevant to assess whether the proposal responds to the issues identified by the Tribunal in respect of the 2017 proposal. However, consistent with the Supreme Court in Zumpano, 'it is for the later decision-maker to determine what weight should be given to the earlier decision'.[17]
3. In considering this proposal, I have had regard to the following 'repeat appeal' principles[18] to consider whether there has been:
   • Significant changes in the application itself;
   • Changes in circumstances of the land and its surrounds;
   • Changes in planning policy; or
   • Changes in the interpretation of the facts or laws relevant to the Tribunal's consideration.
4. Having regard to these principles, I agree with the applicant that the proposal is not inconsistent with the King David principles. Although the seventh storey was not proposed or contemplated in the proposal that was the subject of 2024 agreement, this does not preclude its consideration as part of this application. That the 2017 permit required that building to be reduced from seven storeys to six, does not preclude the consideration of a seven-storey building as part of this application. The circumstances have changed, notably these include:
   • The approval of planning scheme amendments VC283 (implementation of Plan for Victoria) on 2 September 2025 and C272Ston (introduction of DDO21) on 11 February 2021.
   • Changed massing and architectural composition of the current proposal, compared with the 2017 scheme.
   • Changed market conditions cited by the applicant.
5. The current proposal must be assessed on its merits having regard to such matters as the relevant policies and provisions of the Scheme and the physical and strategic context of the subject land. I have undertaken this assessment in the following sections of these reasons.

WILL THE AMENDED DEVELOPMENT BE AN ACCEPTABLE BUILT FORM OUTCOME?

1. Council acknowledges that due to its large size, there is opportunity for the subject land to support a seven-storey building. However, it submits that in the form proposed the building presents as very clearly taller than others in the area, with the upper two storeys being very prominent.
2. I was taken to a number of six-storey buildings constructed or approved in the activity centre, within the precincts east and west of Williams Road. Council notes there are no other seven-storey buildings proposed or approved in the activity centre.
3. I was also taken to referral advice prepared by Council's urban designer, which describes the 'dominant emerging built form' as follows:[19]

A two or three storey streetwall, with three or two, respectively, clearly visible upper storeys with potentially a sixth heavily recessive sixth storey or lift core partially visible.

1. The urban designer observes that although the top floor of six-storey buildings constructed in the activity centre are presently relatively prominent in oblique views, they 'will appear as much more recessive' when further development occurs in the form sought by DDO21 and are consequently acceptable. This was illustrated in an annotated photo, below, of five- and six-storey developments to the south-east of the subject land, on the corner of Williams Road.

Figure 8: Photo annotated by Council's urban designer, depicting the extent to which an existing sixth floor will be masked from views if infill development consistent with the DDO21 preferred five-storey building envelope occurs. The visible component is coloured red (Source: Tribunal Book page 2002).

1. This is also a concept the applicant relies on (amongst others) in support of the seventh storey.[20]

Figure 9: Photomontage, looking west from Malvern Road, with overlaid indicative DDO masing envelope, extracted from the evidence statement of Mr Stapleton.

1. In relation to the proposed seventh storey, the urban designer states:[21]

...due to the large size of the site there is also an opportunity to deliver a seventh storey. This additional storey however should be heavily recessed, so it effectively disappears, and the building reads as a predominantly five storey form.

1. To achieve this, Council's urban designer recommends:
   • The southern setback of the Sixth Floor increased so that it is 'out of sight' when viewed from the opposite footpath.
   • The eastern and western setbacks of the Sixth Floor increased to approximately 9.0 metres, 'so that it effectively disappears from most views from the street'.
   • A circa 2.5 metre radius curve added to the south-eastern and south-western balcony edges of the Fifth Floor to reduce overall visual bulk in the streetscape.
   • The Sixth Floor perimeter planter boxes set back approximately 1.0 metre from the floor slab edge, 'so they are largely invisible from the public realm, with just the planting visible'.
2. The applicant submits that although the proposal exceeds the preferred maximum building height requirement in DDO21, it will contribute positively to the Malvern Road streetscape, and its height and massing are commensurate with the emerging character of the activity centre.
3. The matter of the building's height was addressed in the planning and urban design evidence called by the applicant. Mr Twite considers the height to be acceptable. In holding this opinion, he had regard to the following factors:
   • The site's location on a main road, in an activity centre, in the C1Z.
   • The mixed built form character of the area to the west of Williams Road.
   • The additional floor facilitates an increase in the number of dwellings in a well serviced location.
   • The size of the property allows for 'generous setbacks' from the property boundaries, so the additional floor 'is well recessed in the round'.
   • There are no direct residential interfaces, except for 2 and 4 Cromwell Road to the north and north-west, both of which are in the C1Z.
   • There is no nearby Heritage Overlay.
   • Immediately abutting properties are zoned C1Z.
   • The additional height will not cause unreasonable amenity impacts on nearby residential-zoned land (the closest being 4-6 Howitt Street, to the north, which is separated from the subject land by McKillop Street) or land used for residential purposes.
   • The strategic vision for the western precinct, in combination with recent construction of five- and six-storey buildings creates a strong emerging built form character and a context that can readily accommodate a seven-storey development on a large site, 'subject to appropriate setbacks and massing'.
4. Ms Roberts is similarly supportive of the proposed height. She too considers that the development of a building of the height proposed is a logical response to the relevant policy drivers and the opportunities afforded by the site. Ms Roberts notes the additional height 'results in no appreciable increase in overshadowing of the public realm or neighbouring properties'.[22]
5. Ms Roberts considers the proposal provides 'considerable upper-level setbacks' which reduce its visibility. Where visible in mid- and long-range views from the east and west along Malvern Road, Ms Roberts is of the opinion the narrow depth of the Sixth Floor floorplate, landscaping to the terrace perimeter and articulation of raked render/concrete and glazing 'present an acceptable addition to the skyline within this changing activity centre'.
6. In addition to addressing the height, Ms Roberts also commented on the architectural quality and design of the building, which she considers further supports the conclusion that it is an appropriate built form for the subject land.
7. Ms Roberts observes that:[23]

The Structure Plan emphasises retaining and enhancing the village character of Malvern Road, and conserving the architectural, cultural and historic significance of Hawksburn Village. A key objective includes ensuring infill development respects Hawksburn's scale, materiality and rhythm, with particular reference to the industrial character of the Western Precinct.

1. Ms Roberts is satisfied the top floor will not have any impact on the 'village' feel of the centre, describing it as 'very discrete'. She notes the planter on the perimeter of the terrace is the element that will read as the 'cap' of the building.
2. Ms Roberts is of the opinion the upper floor does not need to be invisible or almost invisible. She observes that DDO21 does not impose mandatory maximum height controls and calls for the creation of a visually interesting skyline. From an urban design perspective, Ms Roberts notes the upper floor is of no consequence, as it will not cause additional overshadowing of the southern footpath in Malvern Road between 10am and 2pm at the equinox, and does not draw the eye in a way that will affect how Hawksburn Village is experienced.
3. The applicant says it 'meets the intent of the urban designer's aspiration for invisibility', submitting 'the upper level is visible but a secondary component [that] does not undermine at all the built form outcomes sought for the activity centre'. However, the applicant submits the 'conservatism' of the urban designer's recommendations are no longer warranted, noting the advice was prepared before the approval of VC283.
4. Council submits no changes were made to DDO21 itself, as part of VC283, so has no implications for how it is to be applied or the weight it ought to be given.
5. The applicant agrees the content of the overlay has not changed; however, the applicant submits VC283 reinforces policy support for the subject land being an 'ideal candidate for the delivery of high-quality housing at an increased density'.[24]
6. Mr Twite agrees. He says VC283 is a significant shift in policy context because of the inclusion of housing targets, changes in language, and nominating locations such as this to do the 'heavy lifting' regarding housing provision. In his opinion, this changes the weight the Tribunal should place on the discretionary height requirements in DDO21. Mr Twite says that in circumstances where the proposed addition results in no off-site amenity impacts, VC283 adds weight in support of exercising discretion.
7. The applicant submits VC283 'puts a finger on the scales' in favour of taking a more permissive approach because there are no direct impacts arising from the proposed building height. In those circumstances, the applicant submits VC283 calls for striving to optimise intensification in activity centres. The applicant submits this changes the balance of the approach to DDO21.
8. In considering this issue, I recognise that Council has undertaken a comprehensive strategic planning exercise for the Hawksburn Village, culminating in the preparation and adoption of the Hawksburn Village Structure Plan and the subsequent preparation and adoption of Amendment C272Ston. In its assessment of the strategic analysis, the Panel stated:[25]

The Panel is satisfied that the broad strategic directions for Hawksburn Village set out in the Structure Plan are appropriate, and consistent with the Victorian planning objectives and the policy framework. They reflect policy imperatives to promote a housing market that meets community need, and to facilitate development in targeted areas including neighbourhood activity centres, particularly those with good public transport. The Structure Plan encourages a range of housing types and a mixed use neighbourhood with varying densities that provides choice in housing, and directs economic development, built form change and housing growth to an activity centre, taking development pressure off the more sensitive residential hinterland (Clauses 11, 16 and 21.05).

...

Broadly speaking, the level of growth anticipated in the Structure Plan reflects Hawksburn Village's position in the activity centre hierarchy. The Amendment appropriately provides for a lower level of growth and intensification than the higher order centres in the municipality, and a level of growth and intensification that is broadly consistent with comparable centres such as Toorak Village (Clause 21.04).

1. With regard to building height, the Panel for C272Ston said:[26]

The Panel considers that, on the whole, a 5 storey limit remains appropriate across the Western Precinct. That said, it acknowledges there are large sites (such as the BMW site) with potential to accommodate taller forms whilst still meeting character, heritage and amenity considerations. Discretionary controls will allow such proposals to be considered.

1. It is significant that the Panel did not express any reservations about this nominated height or the strategic basis on which it is founded. Nor did the Panel suggest that development of this height would be inconsistent with the vision for the activity centre.
2. I acknowledge Council's vision for buildings of up to 18 metres in this section of Malvern Road. I agree with the Panel, applicant and Council's urban designer, however, that whether a higher development can be accommodated on the subject land should be determined having regard to site-specific considerations. Here, these matters include:
   • The site area, making this consolidated property one of the largest within the activity centre and presenting a commensurate opportunity for a sizeable and relatively intensive development.
   • the absence of an abuttal to land in a residential zone. The adjoining residential properties are within the C1Z.
   • The absence of any nearby heritage area.
   • The commercial zoning of the land.
3. Having considered the physical and strategic context of the subject land, I have concluded there is sufficient justification for a height that exceeds the 18 metres sought by DDO21. For the reasons outlined in the preceding paragraph, it is a site which can accommodate a taller development without an unacceptable impact on the surrounding area, or upon the built form profile of the broader activity centre, subject to an appropriate design. In my view, the proposed building is of a high-quality architectural design. I am not persuaded, however, that the development as proposed is an acceptable response. My concerns lie with the prominence of the seventh floor.
4. The proposal is for the first seven-storey building in the activity centre. I am persuaded that, as proposed, the upper-most floor will be dominant and discordant in oblique views and directly opposite. The south, east and west setbacks of the seventh floor cause it to be highly visible in both short and mid-range views, which Ms Roberts described as being important to the perception of space. I find this will undermine the strategic vision and the emerging character of the centre.[27]
5. I am persuaded that VC283 seeks to facilitate significant increases in the number of dwellings in locations such as this, that have very good access to public transport, facilities and services. However, I am not persuaded that this inevitably leads to a larger built form. This is consistent with Mr Twite's evidence that the increased setbacks sought by Council's urban designer would be of no consequence to the proposal's delivery of increased housing in the activity centre. He observed that the setback changes recommended by the urban designer would result in a more modestly-sized dwelling but would 'comfortably' provide an envelope sufficient for a three-bedroom apartment.
6. I agree with Council's urban designer that increasing the Sixth Floor setbacks from the southern, eastern and western boundaries will result in an acceptable built form outcome in the streetscape.
7. I have required an increase in these setbacks. This should have the effect of confining the maximum overall building height to the centre of the site, so it will be less prominent in views from the public realm. I am of the opinion this outcome will achieve a balance between respecting the heights specified by DDO21 and taking advantage of the opportunities offered by this large, consolidated site. As a consequence, the building will largely present as six-storeys.
8. I have not required a radius curve to be added to the south-eastern and south-western balcony edges of the Fifth Floor, or the Sixth Floor perimeter planter boxes to be set back from the floor slab edge, as sought by Council's urban designer, as to do so will diminish the legibility of the perimeter planter box as the defining rooftop element of the building on the skyline.
9. I am of the opinion the perimeter planter box is an important architectural element that adds a strong 'cap' to the building. This is consistent with the requirements of DDO21 to 'create a visually interesting skyline'.
10. For these reasons, I find that, subject to the setbacks specified above, the proposed built form will be an acceptable response when assessed under cl 34.01 and 43.02, including the design objectives in DDO21.

WILL THERE BE ANY UNACCEPTABLE IMPACTS ON THE AMENITY OF NEARBY RESIDENTIAL PROPERTIES?

1. The respondent submits they hold 'strong concerns' in respect of amenity impacts arising from visual bulk and overlooking from the apartment terraces.
2. The subject land's only direct residential interface is with the properties to the north and north-west, at 2 and 4 Cromwell Road. This land, however, is not within a residential zone and is - in part - bounded to its east by McKillop Street and a lane. The zoning and physical context have the effect of tempering the reasonable amenity expectations of occupants of this land.
3. The zoning means it has a lesser sensitivity to impacts such as overlooking, overshadowing and visual bulk than if it were residentially-zoned land. While I acknowledge that there will be some impacts on this land as a consequence of the development, this is not a sufficient basis to require a modification to the proposal, or to refuse the amendment. I explain my reasons below.

1. Of concern to the respondent are the north- and west-facing apartment terraces on the Third, Fourth, Fifth and Sixth Floors, sited within 9.0 metres of the common boundaries with 2 Cromwell Road. The key issue in dispute is that these terraces are not provided with privacy screening to a minimum height of 1.7 metres above the finished surface level. Instead, the terraces are typically[28] provided with 1.3 metre high balustrades and a fixed, 900 millimetre deep privacy ledge.
2. The respondent says this will lead to direct views into the secluded private open space and habitable room windows at 2 Cromwell Road.
3. I was not taken to any specific provision or policy in the Scheme which details parameters for the assessment of overlooking for an apartment development. Mr Twite notes in his evidence that cl 58 does not include the same overlooking standard as cl 55, which references the 9.0 metre threshold and 1.7 metre high screening devices in standard B4-4 at cl 55.04-4. Consequently, these are not relevant to my consideration.
4. Mr Twite is of the opinion the proposal manages overlooking through building separation in concert with the planter boxes and projecting privacy ledges. To the extent that the offices incorporate privacy screening measures, Mr Twite describes them as 'overkill'.
5. The only reference to overlooking in DDO21 is the following 'general requirement':

• Where required, incorporate built form articulation and/or building separation in preference to screening to manage overlooking.

1. Extensive overlooking sightline diagrams form part of the application plans. Having reviewed the sightline diagrams, I am satisfied they demonstrate direct views into the apartments at 2 Cromwell Road are not possible due to the setbacks provided and design of the balustrades and privacy ledges.
2. The separation between the northern terrace of Apartment 6.01 and 2 Cromwell Road, being in the order of 10 metres, is sufficient to ensure that unacceptable overlooking does not occur.
3. On this basis I consider the extent of overlooking from the proposal is acceptable having regard to the requirements of DDO21 and the site and surrounds' location in a C1Z.

1. The respondent submits the proposed building height and setbacks will impinge on the outlook from terraces and windows at 2 Cromwell Road.
2. Ms Roberts observes the building 'presents as a three-storey podium (10.6 metres) to Malvern Road, maintaining the approved podium composition and street wall height'.[29] Mr Twite agrees, describing the key changes sought by the proposal include 'minor revisions to the approved building envelope'[30] all of which increase boundary setbacks, with the exception of the introduction of the Sixth Floor.
3. Relevant decision guidelines in DDO21 include:

• Provide a sensitive design response (including a transition in building scale and height) where there is an interface with an area of public open space or, a residential property or residential area.
• Provide a design response that considers the outlook, daylight and solar access to windows of adjacent properties.
• On large sites, respect the surrounding prevailing subdivision pattern by providing separation between buildings and modular building bulk rather than unbroken mass.

1. Ms Roberts states the proposal is acceptable as the development incorporates 'substantive' upper-level setbacks to minimise visual bulk and mass when viewed from neighbouring properties. She records that the Fifth Floor façade is set back approximately 18.4 metres from the southern boundary of 4 Cromwell Road and approximately 10.19 metres from the southern boundary of 2 Cromwell Road. The Sixth Floor façade is further recessed, with setbacks of approximately 13.37 metres and 21.61 metres from 2 Cromwell Road and 4 Cromwell Road, respectively.
2. In Ms Roberts' opinion, these measures create modulation in the upper levels and a clear distinction between the podium and upper levels. The landscaped edges of the upper-level terraces further break down the bulk and provides a softening in the form. Collectively, Ms Roberts says this produces a well-managed transition to the adjoining residential properties.
3. In Mr Twite's opinion, and supported by additional sightline and sections prepared for the hearing, the proposed Sixth Floor will largely not be visible from 2 Cromwell Road, except in glimpses from the west-facing terraces on the top floor of that apartment building.
4. I accept that the proposed addition of one floor will add to the height of the building and that, in some locations, the additional floor will be visible from abutting and nearby residential properties. However, I accept Mr Twite's analysis that the addition will be difficult to view from abutting residential properties and will therefore not impact unacceptably on their amentiy.
5. For these reasons, I do not consider there would be any unacceptable visual bulk presented to properties in Cromwell Road.

1. The Strategic Framework Plan at cl 02.04 nominates this section of Malvern Road as 'pedestrian priority'. Council and the applicant were unable to take me to any policy in the Scheme that sets out what this means or seeks to achieve. However, Mr Twite suggests it most likely seeks to deal with vehicle conflict, weather protection and activation.
2. The applicant's experts have differing opinions on whether the proposal is an acceptable response to the pedestrian realm.

1. The Revision 1 plans divide the building into two bays facing Malvern Road, with centrally located, recessed residential and commercial entry lobbies. The east and west bays are set back 480 millimetres from the front title boundary to provide for expressed columns that extend up the street wall.
2. Pedestrian weather protection is provided above the Malvern Road footpath. It takes the form of eight rectilinear canopies spaced between the expressed columns, with a large gap that aligns with the location of the lobbies. The canopies project approximately 1.77 metres from the title boundary, so approximately 1.0 metres to 1.25 metres of the footpath is not covered by the canopy.[31]

Figure 10: Extract from the Revision 1 First Floor plan, showing the proposed form of the canopy above Malvern Road.

1. In response to my questions, Mr Twite is of the opinion the canopies can and should be made continuous but maintain the central gap to mark the main entrance to the building. Further, he suggests it would be appropriate for the canopy to extend closer to the kerb (750 millimetres, to avoid any impact from vehicles). He suggests these changes would be desirable from a pedestrian amenity perspective.
2. Ms Roberts says that urban designers are usually an advocate for pedestrian amenity canopies and notes her recommendation, adopted by the applicant in the Revision 1 plans, to change the canopies from curved to rectangular 'to provide more amenity and to respond to rectilinear built form and industrial character'. Ms Roberts acknowledges the gaps in the canopy will let the rain in, however she considers the gaps to be acceptable, as they are quite small. Ms Roberts notes the canopies as proposed provide enough coverage for a pedestrian to take shelter until the rain has stopped.
3. If a continuous canopy is to be provided, Ms Roberts also recommends the central gap at the lobby entrance, to assist with wayfinding. However, Ms Roberts suggests consolidating the canopies into two may give rise to potential engineering issues arising from wind loading and structure.
4. I am not persuaded that the current design provides an acceptable level of pedestrian amenity in a 'pedestrian priority' location. I agree with Mr Twite that this designation speaks to matters of vehicle conflict, pedestrian amenity and activation. I do not consider the inclusion of a series of gaps in the canopy and the canopy stopping well short of the kerb achieves the level of pedestrian amenity sought by the Scheme for this location.
5. I have required the canopies to be consolidated into two, maintaining the gap adjacent to the entry lobbies, and to extend to 750 millimetres from the face of the kerb. This outcome will be consistent with strategies to encourage improved public spaces and streets.[32]

1. The ground floor façade is comprised of nine bays, approximately 3.6 metres wide each, with alternating levels of visual permeability into the retail tenancies behind.
2. The two end bays are occupied by site services for their full width. The bays containing the retail entrances are comprised of metal double doors fitted with clear, textured glass. This leaves four of the nine bays across the ground floor frontage largely composed of solid or obscure materials, which Mr Twite suggests is a lesser proportion of transparency than might be expected in a 'high street' setting. He suggests this could be addressed by changing the glazing and materiality of the doors to full clear glazing.

Figure 11: Extract from the Revision 1 South Elevation, showing the proposed form of the front façade (streetwall).

1. Ms Roberts believes the right balance has been struck, suggesting the alternating bays provide a 'nice rhythm walking along the street, of solid then clear glazing'. She suggests the variation creates an identity, instead of having indistinguishable materials and treatments which can be monotonous and may make it difficult to find the location of the retail entrances. She notes the level of activation is unaffected, as the materiality does not change the location, number or size of the doorways.
2. I prefer the evidence of Mr Twite, given the designation of this section of Malvern Road as 'pedestrian priority'. I find this means a high level of pedestrian amenity should be achieved. The inclusion of several gaps in the canopy and a high proportion of a retail frontage being fitted with obscure or solid materials does not achieve this. I have required the retail entry doors to be changed to clear glazing.

1. The Tribunal must decide whether the proposal represents an acceptable outcome having regard to the relevant provisions and policies in the Scheme. I have considered all the material filed and presented by parties and cited in statements of grounds.
2. Clause 71.02-3 explains that the Planning Policy Framework seeks to ensure that the objectives of planning in Victoria (as set out in s 4 of the PE Act) are fostered through appropriate land use and development planning policies and practices that integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development.[33]
3. In addressing 'Integrated decision-making' cl 71.02-3 includes:

The Planning Policy Framework operates together with the remainder of the scheme to deliver integrated decision making. Planning and responsible authorities should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.

1. I agree with the applicant that the proposal has strong strategic support.
2. I find the proposed amendments are consistent with the outcomes sought by the C1Z and DDO21[34] by increasing dwelling density in a mid-rise building and adding to housing diversity in a well-serviced location.
3. I find it has been demonstrated that the proposal does not result in the same negative impacts that caused the Tribunal to delete the fifth level in the 2017 proceeding. The amendments are acceptable, achieve a net community benefit, and are appropriate to be made to the permit. In addition, I find the modified design has appropriately responded to the reasons why the previous proposal was scaled back by permit conditions (notably deleting the fifth level), notwithstanding the overall similarity of the concept.
4. I find the proposal will achieve a net community benefit.

1. The amendment request included redrafting the permit preamble (what the permit allows) to accord with the current Planning and Environment Regulations 2015 (Vic).
2. I have had regard to the draft conditions circulated by Council and annotated by the applicant, and additional submissions by all parties at the hearing.
3. I have also edited other conditions for clarity without changing their effect.

1. For the reasons given above, the application is allowed.

Construct a building or construct or carry out works in the Commercial 1 Zone.

Construct a canopy above the Malvern Road footpath.

Construct a building or construct or carry out works in the Design and Development Overlay Schedule 21.

Construct a building or construct or carry out works in the Special Building Overlay Schedule 2.

Reduce the number of car parking spaces required under Clause 52.06-5 for offices and shops.

Alter access to a road in a Transport Zone 2 by reinstating a redundant crossing in Malvern Road.

1. Before the development starts, one copy of plans drawn to scale and fully dimensioned, must be submitted to, and be approved by, the responsible authority. The plans must be generally in accordance with the plans identified as the VCAT Amended Plans in VCAT proceeding P553/2025, Project No. M23106, sheets TP-097, TP-098, TP-099, TP-100, TP-101, TP-102, TP-103, TP-104, TP-105, TP-106, TP-107, TP-400, TP-401, TP-402, TP-403, TP-500, TP-501, TP-502, TP-502.A, TP-503, TP-504, TP-505, TP-506, TP-507, TP-508, TP-600, and TP-601, all Revision 1 dated 29.09.2025 and prepared by Ewert Leaf, but modified to show:

(a) The southern setback of the Sixth Floor increased so that it is not visible when viewed from the opposite footpath, as demonstrated by a sightline diagram.

(b) The eastern and western setbacks of the Sixth Floor increased to a minimum of 9.0 metres.

(c) The canopies above the Malvern Road footpath to be consolidated into two canopies, maintaining the gap adjacent to the central residential and commercial entry lobbies, and to extend to 750 millimetres from the face of the kerb.

(d) The retail entry doors changed to full clear glazing.

(e) Inclusion of minimum 2.85 metre high window forms to apartment living rooms on the fourth and fifth floor levels.

(f) Details of car park ventilation shown on basement plan to show CO2 monitoring to limit usage to satisfy Clause 58.03-7 - Standard D12.

(g) Residential corridors at levels 03-06 to be mechanically ventilated to satisfy Clause 58.05-2 - Standard D18.

(h) Annotation on plans to be clarified to reference Clause 58.05-4 - Standard D20 - storage.

(i) All B type bathrooms to reposition the toilet closest to the door with all inwards opening doors having readily removable hinges to meet Clause 58.05-1 - Standard D17.

(j) Dwelling 6.01 to identify an accessible bathroom to meet Clause 58.05-1 - Standard D17.

(k) The layout of the Type A bathrooms for Dwellings 4.04 and 5.01 to remove the enclosure of the toilet to meet Clause 58.05-1 - Standard D17.

(l) All accessible dwellings to show the required clear path to the living rooms to meet Clause 58.05-1 - Standard D17.

(m) An annotation on the elevation plans (TP400, TP401, TP402 & TP403) to show the materiality of the boundary walls as concrete with a vertical linear pattern.

(n) The set-out of all of the bicycle parking racks, including space for access/egress is to be dimensioned on the plans and should align with the provisions within the Australian Standards AS2890.3 Bicycle Parking.

(o) Any changes required by Condition 3 (Material Schedule), Condition 4 (Car Parking Management Plan), Condition 5 (Landscape Plan), Condition 7 (Sustainable Management Plan), Condition 9 (Water Sensitive Urban Design Response), Condition 10 (Green Travel Plan), and Condition 13 (Waste Management Plan).

(p) Any changes required by Conditions 15 and 16.

(q) The two terraces to Dwelling 3.04 to include raised balustrade heights to 1.3 metres above the finished floor level with a 900mm wide horizontal privacy blade and integrated planted beds to the northern side.

(r) All north facing windows that are not overhung by balcony to have a 600mm deep fixed awning.

1. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason, without the prior written consent of the Responsible Authority.

1. Concurrent with the submission of plans required by Condition 1, a colour and material schedule must be submitted to and approved by the Responsible Authority. The schedule must show all external materials, colours and finishes, including glazing that must be of a low reflectivity (a reflectivity value not exceeding 30 per cent) to the satisfaction of the Responsible Authority

1. Concurrent with the submission of plans required by Condition 1, a Car Parking Management Plan to the satisfaction of the responsible authority, must be submitted to, and be approved by, the responsible authority. When approved, the Car Parking Management Plan will be endorsed and will form part of the permit. The plan must include:

(a) A schedule of allocation of car parking spaces to each tenancy;

(b) Details of the signing and line marking of parking spaces;

(c) Detail any access controls to the parking area; and

(d) Details of the access arrangements for the bicycle facilities;

all to the satisfaction of the Responsible Authority.

1. Concurrent with the submission of plans required by Condition 1, a landscape plan to the satisfaction of the responsible authority, prepared by a landscape architect or suitably qualified or experienced landscape designer, must be submitted to, and be 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. The landscape plan must be in accordance with the landscape plan prepared by John Patrick Pty Ltd, Revision E dated 2025.10.03, but modified to show:

(a) The layout of the development to accord with the plans required by Condition 1.

(b) Notation to confirm that the landscape irrigation system is connected to the rainwater tank(s) as default and with potable water (mains water supply) to only be used for irrigation where tanks are depleted;

(c) A planting schedule of all proposed species to be planted within the development, including botanical names, common names, pot/planter sizes, sizes at maturity, and quantities of each plant;

(d) Soil volumes for each planter box to be installed;

(e) Details of the irrigation system that will support the planting;

(f) The on-going maintenance regime that will be implemented to ensure the sustained health of the planting;

(g) Details of all proposed hard surface materials including pathways, patio or decked areas; and

(h) More diverse planting in the perimeter planter boxes on Level 5 and 6.

1. Before the occupation of the development, 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.

1. Concurrent with the submission of plans required by Condition 1, a Car Parking Management Plan to the satisfaction of the responsible authority, must be submitted to, and be approved by, the responsible authority. When approved the Car Parking Management Plan will be endorsed and will form part of the permit., a Sustainable Management Plan (SMP) to the satisfaction of the responsible authority, must be submitted to, and be approved by, the responsible authority. When approved, the SMP will be endorsed and will form part of the permit. 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 generally in accordance with the SMP prepared by Melbourne Sustainability Consultants Pty Ltd, dated 2 June 2025, and must include, but not limited to, the following:

(a) The layout of the development to accord with the plans required by Condition 1.

(b) Connection of all urinals to rainwater tank(s), if any proposed.

(c) Demonstrate how Best Practice measures from each of the 10 key Sustainable Design Categories of Stonnington Council's Sustainable Design Assessment in the Planning Process (SDAPP) have been addressed.

(d) Identify relevant statutory obligations, strategic or other documented sustainability targets or performance standards.

(e) Document the means by which the appropriate target or performance is to be achieved.

(f) Identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring.

(g) Demonstrate that the design elements, technologies and operational practices that comprise the SMP can be maintained over time.

1. Concurrent with the submission of plans required by Condition 1, a Water Sensitive Urban Design Response to the satisfaction of the responsible authority, must be submitted to, and be approved by, the responsible authority. When approved the Water Sensitive Urban Design Response will be endorsed and will form part of the permit. The Water Sensitive Urban Design Response must address the Application Requirements of the Water Sensitive Urban Design Policy to the satisfaction of the responsible authority. All proposed treatments included within the Water Sensitive Urban Design Response must also be indicated on the plans.
2. The project must incorporate the Water Sensitive Urban Design initiatives detailed in the endorsed site plan and/or stormwater management report.

1. Concurrent with the submission of plans required by Condition 1, a Green Travel Plan to the satisfaction of the responsible authority, must be submitted to, and be approved by, the responsible authority. When approved the Green Travel Plan will be endorsed and will form part of the permit. The Green Travel Plan must include, but not limited to, the following:

(a) A description of the location in the context of alternative modes of transport.

(b) Any actions and recommendations designed to reduce the use of cars and increase the use of alternative travel methods.

(c) Sustainable transport goals linked to measurable targets, performance indicators, monitoring timeframes, and costs.

(d) Initiatives that would encourage employees and visitors of the development to utilise active private and public transport and other measures that would assist in reducing the amount of private vehicle traffic generated by the site.

(e) Details of GTP funding and management responsibilities.

(f) Promotion of existing car-share schemes, bicycle parking facilities for employees/visitors, railway stations, tram stops, bus stops, taxi ranks, and bicycle paths.

(g) Details of bicycle parking and bicycle routes.

(h) Signage and wayfinding information for bicycle facilities and pedestrians pursuant to Australian Standard AS2890.3.

(i) Provision of ensuring visitor bicycle parking is accessible from office lift lobby.

(j) Establishment of a car-pooling database for employees.

(k) Include provisions to be updated not less than every 5 years.

1. The provisions, recommendations and requirements of the endorsed Green Travel Plan must be implemented and complied with to the responsible authority.
2. Once approved the Green Travel Plan must form part of any ongoing Management Plan for the land to ensure the Green Travel Plan continues to be implemented by owners/tenants to the satisfaction of the responsible authority.

1. Concurrent with the submission of plans required by Condition 1, a Waste Management Plan to the satisfaction of the responsible authority, must be submitted to, and be approved by, the responsible authority. When approved the Waste Management Plan will be endorsed and will form part of the permit. The Waste Management Plan must be generally in accordance with the Waste Management Plan prepared by One Mile Grid Pty Ltd, dated 3 June 2025, but amended to show the following:

(a) The layout of the development to accord with the plans required by Condition 1.

(b) Swept path diagrams for nominated waste collection vehicle(s) demonstrating that waste collection vehicle(s) is able to enter and egress the car park and ramp in a forward direction and will not strike any overhead obstruction along the ramp and at the car park entrance (with any roller door in an open door position).

(c) Detail and height of waste collection vehicle(s) must be provided on the swept path diagrams and headroom clearance templates/cross sections.

(d) Collections restricted to the hours of 8:00am to 6:00pm, Monday to Saturday.

(e) Compaction of refuse to only be carried out while on the move once the collection vehicle is no longer in McKillop Street.

(f) Bottles must not be broken up at the point of collection or while the collection vehicle is in McKillop Street.

(g) Allocated space for hard waste.

(h) Allocated space for glass, organics and cardboard for commercial tenants.

1. Waste collection from the development must be in accordance with the endorsed Waste Management Plan, to the satisfaction of the responsible authority.

1. The ground floor must be constructed with finished floor levels set no lower than 16.50 metres to Australian Height Datum (AHD), which is 200mm above the applicable flood level of 16.30m to AHD.
2. The basement must be protected from flooding to a minimum level of 16.50 metres to AHD, which is 200mm above the applicable flood level. The apex to the basement must be constructed to at least 16.50 metres to AHD. All external doors, windows, openings and vents must be at or above 16.50 metres to AHD.

1. Prior to the commencement of the development hereby approved, the permit holder must obtain approval from Council's Building and Local Laws Department to construct or modify any vehicle crossover/s providing access to the subject site. The issue of a planning permit does not provide approval for vehicular crossovers which are outside of the title boundary.

1. The existing pavement levels in McKillop Street must not be raised or altered in any way at the property line to facilitate the basement ramp to the satisfaction of the Responsible Authority.
2. The finished development levels must match the existing footpath levels of Malvern Road and the footpath levels must not be altered in any way to the satisfaction of the Responsible Authority. This must be clearly shown on the endorsed plans.

1. 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 and not pumped, 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.
2. 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 to ensure that all works have been constructed in accordance with the approved design and the relevant planning permit conditions. Certification of the completed drainage from the Engineer must be provided to Council prior to a 'Statement of Compliance' being issued for the subdivision.
3. Prior to occupation of the building, any existing vehicular crossing made redundant by the building and works hereby permitted must be broken out and re-instated as standard footpath and kerb and channel at the permit holders cost to the approval and satisfaction of the Responsible Authority.
4. Prior to the occupation of the building, any screening devices shown on the endorsed plans designed to limit overlooking must be installed to the satisfaction of the Responsible Authority and maintained to the satisfaction of the Responsible Authority thereafter for the life of the building.
5. Lighting within the offices is to be on a timer or sensor so that the internal lights are switched off when the offices are not in use so as to minimise the spill of light beyond the office building to the satisfaction of the Responsible Authority.
6. External lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the Responsible Authority.
7. Prior to occupation of the building, access for persons with disabilities must be provided in compliance with the Disability Discrimination Act 1992 and such access must be maintained at all times the building is occupied or in use.
8. Prior to the occupation of the building, the walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.
9. All utility services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority by completion of the development.
10. Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.
11. All plant and equipment (including air-conditioning units) shall be located or screened so as not to minimise visibility from any of the surrounding footpaths and shall be baffled so as to minimise the emission of unreasonable noise to the environment in accordance with the Environment Protection Act 2017 to the satisfaction of the Responsible Authority.
12. All loading and unloading of goods must be undertaken in accordance with Council's Local Laws.
13. The collection of wastes and recyclables from the premises (other than normal Stonnington City Council collection) must be in accordance with Council's General Local Laws.
14. Adequate provision must be made for the storage and collection of wastes and recyclables within the site prior to the commencement of use or occupation of the building. This area must be appropriately graded, drained and screened from public view to the satisfaction of the Responsible Authority.

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

1. This permit will expire if one of the following circumstances applies:

(a) The development is not started within three years of the issue date of this permit.

(b) The development is not completed within five years of the issue date of this permit.

In accordance with s 69 of the Planning and Environment Act 1987 (Vic), a request may be submitted to the Responsible Authority within the prescribed timeframes for an extension of the periods referred to in this condition.

1. Prior to the issue of a building permit, a Development Infrastructure Levy must be paid to Stonnington City Council pursuant to Schedule 1 to the Development Contributions Plan Overlay of the Stonnington Planning Scheme and the approved Stonnington Municipal-Wide Development Contributions Plan (2020-2040), January 2023. The levy amount payable will be annually adjusted on 1 August each year in accordance with the Consumer Price Index (CPI) and calculated at the time of payment.

1. Prior to the issue of a building permit, a Community Infrastructure Levy must be paid to Stonnington City Council pursuant to Schedule 1 to the Development Contributions Plan Overlay of the Stonnington Planning Scheme and the approved Stonnington Municipal-Wide Development Contributions Plan (2020-2040), January 2023. The levy amount payable will be annually adjusted on 1 August each year in accordance with the Consumer Price Index (CPI) and calculated at the time of payment.

1. The substation and main switch room must comply with noise limits determined in accordance with the methodology in EPA publication 1826.4 Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues (Noise Protocol).

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons. At the start of the hearing, I advised the parties that in my preparations for the hearing, I inadvertently clicked on a 'ShareFile' link circulated by the applicant that contained documents relating to the compulsory conference held in this proceeding. I did not download or view the documents. No questions or concerns were raised by any person in relation to the declaration.

[2] Council submissions at [45], which also notes the owner may ask for an extension of time to commence the development within six months of the permit expiring, under s 69(1) of the Planning and Environment Act 1987 (Vic) ('PE Act').

[4] As advised by Mr Twite, having sought advice from the architects via his instructors.

[5] As advised by Mr Twite during evidence-in-chief, based on a spot level on the Malvern Road footpath of RL 16.96.

[6] Emails dated 15 September 2025 and 22 October 2025, sent on behalf of Amanda Turner, indicate she no longer objects to the proposal subject to conditions relating to privacy screening. The condition sought by Ms Turner is not opposed by the applicant or any other party.

[7] 'Proposed Sixth Floor' per the application plans.

[8] Department of Transport and Planning, 2025.

[11] Clause 15.01-2L-01 Building Design.

[12] Hawksburn Village Neighbourhood Activity Centre.

[13] This is a reference to the Tribunal's decision in the case of The King David School v Stonnington CC & Ors (includes Summary) (Red Dot) [2011] VCAT 520 ('King David').

[14] [2016] VSC 420.

[15] [2012] VCAT 1675.

[16] [2015] VCAT 1091.

[18] Reichart v Banyule CC [1996] VICCAT 44.

[19] Tribunal Book, page 2002, City of Stonnington Urban Design referral advice. It is noted the referral advice was prepared based on the lodged plans (Revision F), not the Revision 1 plans that are before me. Council stated it was unable to obtain updated advice from the urban designer, as he is no longer a Council employee.

[20] As evidenced by the inclusion of photomontages overlaid with 'indicative DDO massing' envelopes in Mr Stapleton's evidence statement.

[21] Tribunal Book, page 2003, City of Stonnington Urban Design referral advice.

[22] Ms Roberts' evidence statement at [84].

[24] Applicant's submissions at [49].

[25] Stonnington Planning Scheme Amendment C272ston, Panel Report, page [22-23 of 116], 30 July 2020.

[27] For example, at cl 15.01-2L-01 (Building design, Strategies, Building heights) which discourages 'development that is significantly higher or lower in height than the surrounding buildings unless a different preferred height is specified for the particular area in another provision of the planning scheme or in a structure plan.'

[28] Except for the western sides of the Apartment 3.04 and 4.04 terraces, the northern and western sides of the Apartment 5.02 terrace and the northern side of the Apartment 6.01 terrace, none of which have privacy ledges fixed to the balustrade. The Apartment 6.01 balustrade has a height of 1.0 metres.

[29] Ms Roberts' evidence statement at [22].

[30] Mr Twite's evidence statement at [8]. The amendments to the building envelope are described in greater details in his evidence at [34] and include an increase to the Level 3 setback from the northern boundary by 1.6 metres to 2.0 metres, an increase to the Level 4 setback from the north-west to 8.4 metres and 9.2 metres, and the addition of Level 6.

[32] For example, at cl 15.01-1L-01, Urban design strategies, Public realm.

[34] Such as at cl 16.01-1L-01 (Housing supply and diversity), which seeks to 'direct the majority of new residential development to locations with the highest level of accessibility to both an activity centre and the Principal Public Transport Network, and away from the residential hinterland'.