The proposal is for the construction of buildings of two storeys, four and five storeys for 65 dwellings, a reduction in the associated car parking and bicycle facilities requirements, alteration of access to a road in Road Zone, Category 1 and variation to easement E-1 on Title Plan 870538J, Volume 11086, Folio 333.

Application under section 77 of the Planning and Environment Act 1987 to review a decision to refuse a permit.

The land is located in the Residential 1 Zone. Whitehorse Road is located in a Road Zone Category 1. The adjoining land to the east at 2 Hardwicke Street, is within a site specific Heritage Overlay (H0420).

Clause 55 of the Planning Scheme, Rescode, does not apply to 4 storey buildings (excluding basements). Design Guidelines for Higher Density Housing apply to such buildings.

Clause 21.05 - Heritage, Landscapes and Urban Character

The subject land is a regular parcel of land located on the north side of Whitehorse Road, at the intersection with Percy Street in Balwyn. The land has frontages of approximately 64 metres to Whitehorse Road and 80 metres to Percy Street. The area of the land is approximately 5,620 square metres .

1. This is an application to review the decision of the responsible authority to refuse permission for construction of 3 buildings of 2, 4 and 5 storeys for dwellings, a reduction in the required car and bicycle parking an alteration of access to a Road Zone Category 1 and a variation of an easement, at 20r Whitehorse Road, Balwyn. Notwithstanding the recommendation of its planning officer that a Notice of Decision to Grant a Permit be issued, the responsible authority issued a Notice of Refusal to Grant a Permit for eight reasons.
2. At the commencement of the hearing Mr Pitt applied to amend the permit application by the substitution of amending plans as foreshadowed by notice given in accordance with the Tribunal's practice requirements. No person opposed the amendment of the permit application in this way, and the Tribunal ordered the amendment of the permit application in accordance with Mr Pitt's request.
3. Ms Lardner advised that the amending plans had resolved issues relating to the scale, setbacks, massing and detailed design of the proposed townhouses and the potential for overlooking from Building B. Consequentially the reasons for refusal being pursued at the hearing are as follows:
   1. The scale, setbacks, massing and detailed design of Buildings A and B would have a detrimental impact on the heritage significance of 199 Whitehorse Road / 2 Hardwicke Street.
   2. The scale, setbacks, massing, detailed design and lack of landscaping opportunities of Buildings A and B do not adequately reflect the valued attributes of the existing character of the neighbourhood.
   3. The volume of traffic that would be generated by the development will have detrimental impact on the safety and operation of the Percy Street and the Percy Street/Whitehorse Road intersection.
   4. The proposed areas of secluded private open space for apartments G-11 and G-12 do not provide a satisfactory level of amenity.
   5. The proposed development will cause unreasonable visual bulk impacts on the secluded private open space of the adjacent dwelling to the west at 199 Whitehorse Road / 2 Hardwicke Street and the secluded private open spaces of the dwellings to the north at 6 Hardwicke Street, 1/2 Percy Street and 2/2 Percy Street.
4. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a video, and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality.

1. The subject land is a substantial proportion of the land formerly occupied by the 'Balwyn Centre', a residential service operated by the Department of Human Services. Part of the land fronting onto Hardwicke Road and originally used by the Balwyn Centre for car parking, is not included in the application.
2. There are several vacant, two storey, buildings[1] on the land. The main building is an inter war, Tudor Revival, building constructed of red clinker brick like many much smaller bungalows developed in the municipality in the same period. The buildings on the land are listed as 'C-graded' buildings in the 1991 Camberwell Conservation. The 2007 review of B and C graded buildings did not recommend including the buildings in the Heritage Overlay and therefore there are no heritage controls affecting the land[2].
3. Immediately abutting the subject land are:
   • To the north, two single storey "villa units" at 2 Percy Street and part of the rear garden of the dwelling at 6 Hardwicke Street, and;
   • To the east, Pontefract House, a large heritage dwelling at 199 Whitehorse Road[3].
4. Other characteristics of the land are:
   • A fall of approximately 7.2m from south to north.
   • Existing single width crossovers to Whitehorse Road and to

Percy Street; * A somewhat overgrown garden, including some substantial trees around the perimeter of the site; and * Drainage easements traversing the land. 5. The residential area north of Whitehorse Road which incorporates the subject land falls within Neighbourhood Character Area 34. The neighbourhood character statement describes the area as follows:

The land form of this neighbourhood consists of a modern slope falling from Whitehorse Road to Gordon Street.

The main period of subdivision occurred during the inter-war period. As well as retaining a small area of the previous rural subdivision, the designers of the original estates introduced some innovative lot designs which did not become prevalent until more than a decade later.

The area contains much of the original housing stock, constructed in the Bungalow style. There has been substantial house replacement. In the past twenty years, multi-dwelling housing has been constructed in the area. The sheer mix of construction styles gives this area a distinctive character.

While streets retain much of their original detailing, street tree plantings are an inconsistent mix with a range of species in individual streets. A notable exception is Gordon Street, which has an extensive canopy of mature plane trees.

The area enjoys good access to shops, public transport and services.

1. Properties along Whitehorse Road are characterised by more substantial dwellings in well developed but varied gardens. Percy Street is unusual in that it has a concrete road pavement somewhat narrower than the norm, and because the extent of modern redevelopment is less than that evident elsewhere in the neighbourhood.
2. The land is located between two neighbourhood activity centres:
   • Balwyn, 210 metres to the east; and
   • Deepdene, 265 metres to the west.

The Balwyn Activity Centre was described by Ms Lardner as being a "main street" style large neighbourhood centre.

1. Tram 109 runs along Whitehorse Road providing access from Box Hill through Richmond and the central city to Port Melbourne.

1. The proposal is for the construction of 65 dwellings in three building groups of two storeys, four and five storeys above basement levels for car parking and services. Permission is also sought for a reduction in the associated car parking and bicycle facilities requirements, alteration of access to a road in Road Zone, Category 1 and variation to easement E-1 on Title Plan 870538J, Volume 11086, Folio 333.

1. The proposed building groups are arranged south to north across the land as follows:
   • Building A is a four level apartment building fronting onto Whitehorse Road;
   • Building B is a five level apartment building fronting onto Percy Street;
   • The townhouses comprise 7 two storey dwellings, 2 fronting onto Percy Street and 5 fronting onto a shared access space; and
   • The basement for 116 car spaces extends under all building groups.

See appendix B, an extract from the proposed landscape plan, to better understand this proposed layout.

1. The proposed building groups vary in height, taking advantage of the slope of the land and responding to changing interfaces. The upper level or levels of the apartment buildings are set in from the levels below. See cross section below:

1. The upper car parking level is described as the Lower Ground Floor on the plans. This level contains 32 car spaces, access ways and services and extends below buildings A & B. This level also contains the lowest level of dwellings in Building B, all of which front to the north onto the space between Building B and the townhouses.
2. The lower car parking level is described as the Basement on the plans. This level contains 84 car spaces, access ways and services and extends below buildings A & B and the townhouses. Floor levels within the basement also step down the slope under the townhouses.
3. The sole vehicular entry to the car parking levels is from Percy Street from a crossover sited between Building A and the townhouses[4].

1. In these reasons we first consider planning policy and the site's characteristics to understand in broad terms the type of redevelopment which might reasonably be expected on the land. We then turn to a specific consideration of the proposed development considering the way in which it relates to neighbours and the neighbourhood generally and the potential impacts of the proposal in terms of heritage, car parking, traffic and landscape considerations.

1. The subject land has a number of characteristics which distinguish it from other residential properties in this suburban residential area and suggest the possibility of an atypical development solution. These land characteristics are:
   • The land is a large regular lot with a north facing slope;
   • The land has a frontage to an important arterial road accommodating tram route 109;
   • The land is within a short distance of two neighbourhood activity centres, one of which; Balwyn; is a large strip shopping centre with a rich array of community and commercial facilities valuable to nearby residents.
   • The land is located on the north western corner of the intersection of Percy Street with Whitehorse Road. Consequentially, the land has two road frontages, a small number of residential properties directly adjoining the land and a reduced risk that development on the land will adversely overshadow adjoining properties; and
   • The land has historically been used for an institutional purpose.
2. The following extracts from the planning scheme and the State Government's more recent policy document Melbourne @ 5 million, December 2008 give a sense of the planning policy approach to urban consolidation and more intense forms of development on strategically located sites.

• Facilitate sustainable development that takes full advantage of existing settlement patterns, and investment in transport and communication, water and sewerage and social facilities

(cl 12.01-1)

• Locate a substantial proportion of new housing in or close to activity centres and other strategic redevelopment sites that offer good access to services and transport (cl 12.01-2)
• Encourage consolidation of existing urban areas, and higher density and mixed use development near public transport routes (cl 14.01-2)
• Encourage opportunities for increased residential densities to help consolidate urban areas (cl 16.01-1)
• Increase residential development opportunities (including higher density development) in and around commercial centres and other strategic locations. (cl 21.07)

• The focus will be on locating more intense housing development in and around activity centres, along tram routes and the orbital bus routes on the Principal Public Transport Network, in areas close to train stations and on large redevelopment sites.

(Page 17)

• More intensive development will occur along major public transport services in the inner Melbourne area, like the tram network. These will provide significant opportunities for more affordable housing on 'market friendly' development sites. (Page 17)

1. In our opinion the land is a strategic development site on which planning policy in relation to urban consolidation, housing diversity and affordability should be achieved[5]. The land should be more intensively developed with the scale of development being optimised to the extent that it is practical having regard to other planning considerations.
2. However policies such as these do not stand in isolation. They do not imply that the redevelopment of sites such as this is unconstrained. Set out below are extracts from the planning scheme, which give a sense of planning policies in relation to the way in which new development should have regard to a site context and respect neighbourhood character.

• Recognise and protect cultural identity, neighbourhood character and sense of place by: ... Ensuring development recognises distinctive urban forms and layout and their relationship to landscape and vegetation. Ensuring development responds to its context and reinforces special characteristics of local environment and .... (cl 12.05-2)
• In planning for urban growth, planning authorities should encourage consolidation of existing urban areas while respecting neighbourhood character. (cl 14.1-2)
• To encourage design solutions which enhance and respond positively and creatively to the existing neighbourhood character of residential areas in the City. (cl 22.07-2)

1. Melbourne @ 5 Million has little to say about site context and neighbourhood character and related site specific issues. However, it is interesting to note that Melbourne @ 5 Million promotes the siting of more intensive housing developments on tram routes, among other things, as a mechanism to preserve liveability, presumably by reducing the potential impacts of more intensive development in other locations.

• To manage this growth and preserve liveability, the focus will be on locating more intense housing development in and around activity centres, along tram routes and the orbital bus routes on the Principal Public Transport Network, in areas close to train stations and on large redevelopment sites. (page 12)

1. From a planning policy perspective the land is a strategic site upon which more intensive forms of development are to be encouraged. Nevertheless, in considering a proposal for the redevelopment of the land the balance must be struck between achieving an intensive outcome and responding appropriately to the site's context and the character of the surrounding neighbourhood.
2. At first blush a proposal including a five storey building in a suburban location, close to but not within or adjoining an activity centre, would seem a difficult to justify proposition. The question is whether the size and topography of the site allows for the massing for such a building to produce an acceptable outcome in its context, including its planning policy context.
3. There is a draft Balwyn Activity Centre Structure Plan which has the potential to be helpful to this strategic assessment. Under the plan the land is within a residential periphery in which more intensive residential development is encouraged, the Increased Housing Density Area. The land itself is on the periphery of this area. The parties and the witnesses relied on the draft plan in diverse ways to support their positions.
4. However, the draft plan is highly embryonic. At the time of the hearing the debate between the community and the planners in relation to the content of the plan was still being worked through on the floor of the council chamber. There is much to happen before the plan is incorporated into the planning scheme. We are unable to give significant weight to the draft plan.
5. More helpful, in some respects, was Mr Elliot's assessment of the number of larger sites available for larger scale redevelopment within the Increased Housing Density Area. The number of larger sites is very limited indeed, and not many of them seem likely prospects for redevelopment. This emphasises the importance of the opportunities presented by the subject land.

1. The basic approaches of the project architect to managing the scale of the building in its local context is as follows:
   • There is to be a transition in scale from south to north[6] with the principle facades of both apartment buildings presenting as a three storey masses to both Whitehorse Road and Percy Street with higher elements being managed through the slope of the land, or by insetting higher levels in from the levels below; and
   • Presenting a pattern of three relatively narrow facades to the Percy Street streetscape, to loosely reflect the pattern of buildings and spaces between buildings to be found within suburban streets such as Percy Street.
2. The question is how successful is this approach. During the hearing much of the debate centred on the visual impacts of Building B. Mr Czarny suggested that the upper levels should be removed from Building B. Mr Atkins put forward a number of propositions, one of which included reducing the overall height and massing of Building B by removing either the ground floor level, or first floor level, to lower the overall height of Building B.
3. We find that the general approach of the design architect to the massing of buildings on the land is capable of producing an acceptable outcome. In particular, it is appropriate that Building A be designed to have a principal façade of three storeys presenting to Whitehorse Road, and that Building B have a principal façade of three storeys presenting onto Percy Street. However, we have a number of reservations in respect of the siting and massing of Building B and the townhouses as these buildings relate to the Percy Street streetscape. We consider that:
   • The frontage setbacks to the principal facades of Building B and the townhouses to Percy Street are inadequate. The townhouses are setback 4.655 metres while the setback to Building B is 4.048 metres. In relation to the townhouses, while the proposed setback is similar to that of 2 Percy Street to the north, 2 Percy Street has a very modest scale and a frontage setback at the lower end of the range of frontage setbacks to be found within Percy Street. In relation to Building B, we think that the proposed setback to the principal façade of Building B is inadequate for a three storey building element, notwithstanding the corner location, having regard to the range of setbacks found within Percy Street and the need to provide an appropriate landscaping setting for Building B.
   • The size of the site presents an opportunity for the overall height of Building B to rise by another two storeys above that of its principal façade. Nevertheless, we consider that as proposed the setbacks to these upper levels from the principal façade are inadequate to acceptably moderate the visual impact of these floors from within the Percy Street streetscape.
4. These reservations can be resolved by a permit condition which requires the submission of amended plans to show:
   • The frontage setback of the proposed townhouses from Percy Street being not less than 6 metres;
   • The frontage setback of Building B from Percy Street being not less than 6 metres; and
   • The setbacks to the first and second floor levels of Building B from Percy Street being increased by 5 metres.

With these modifications the frontage setback of Building B and of the townhouses responds better to the character of Percy Street, allows for a better landscape setting and better manages building scale.

1. To the west is Pontefract, the mansion house at 2 Hardwick Street. The western elevation of Building B has a direct interface with Pontefract. The front or south elevation of Building B generally aligns with the front elevation of Pontefract. The minimum separation distance between the two buildings is 7.30 metres. The north west corner of Building B is the most sensitive because of its relationship to the rear open space area of Pontefract.
2. The existing buildings on the land are set well back from this western boundary, and the intervening space is occupied by established vegetation. Therefore, the proposal will result in a substantial change to this condition. Is it an unacceptable change? Pontefract is a substantial dwelling effectively three storeys tall to the north. Consequentially, the vertical scale of the two buildings has a reasonably proportionate relationship and in this context the separation distance is generous.
3. The issue we were particularly concerned to examine, on our inspection, was the relationship between the proposed building and the rear open space of Pontefract. It is our conclusion that this relationship, and the relationship between the two buildings generally, is satisfactory, as a consequence of the proposed setbacks and the opportunities for landscaping both on the subject land and within 2 Hardwick Street itself.

1. To the north, the proposed two storey townhouses have an interface with the "villa units" at 2 Percy Street, and the rear garden of 6 Hardwick Street. The dwellings at 2 Percy Street are heavily oriented to the north, away from the subject land. Therefore, the proposed townhouses can have no unreasonable amenity effects on these dwellings, and in some respects the proposed outcome will be better than the existing condition.
2. In relation to 6 Hardwick Street, there will be a very substantial change to the openness of the existing condition, as is the case for 2 Hardwick Street. However, the subject land is to the south of this rear garden space, the proposed setbacks are adequate, and measures are proposed to reasonably control overlooking. Therefore there are no direct or tangible amenity consequences of the proposed development. There will be a substantial change to the southern outlook from this open space, but not an unreasonable change having regard to the planning policy context affecting the subject land.
3. Objectors directly east of the subject land across Percy Street are concerned about the scale of the proposed building and direct amenity impacts such as overlooking. In relation to visual impacts, the potential effect on this group of residents is essentially a streetscape effect. This is an issue dealt with above, and we have concluded that with some modification, the proposal will produce an acceptable outcome. In relation to privacy the minimum separation distance to habitable rooms or secluded private open space from viewing points within the development exceeds 18 metres (measured horizontally). This is more than twice the distance at which ResCode would suggest that screening measures are required.

1. Pontefract, the building the subject of HO420, is primarily oriented to Hardwick Street. Moreover, the dwelling is surrounded by a substantial brick fence and hedge, and consequentially there are relatively limited views to the heritage building from the public realm.
2. In any event, Building A is setback almost 21 metres from the boundary of 2 Hardwick Street, and the southern most elevation of Building B is setback from Whitehorse Road so that it generally aligns with the south elevation of Pontefract[7]. The large open space created by these setbacks was initially conceived of for the preservation of the large eucalypt on the subject land but a related consequence is a very respectful relationship between the proposed buildings and the heritage building Pontefract.
3. Indeed, the relationship between buildings is more than adequate given that the subject land is not itself within a heritage overlay area. Furthermore, as observed by Mr Lovell there are no specific provision in the planning scheme addressing the relationship between a new building and a heritage building when the new building is not within a heritage overlay.

1. The proposal is for 65 dwellings comprising 10 three bedroom dwellings, 48 two bedroom dwellings, and 7 one bedroom dwellings. The proposed basement is to contain 116 car spaces. Of these car spaces, 103 spaces are to be set aside for resident parking and the balance for visitor car parking.
2. Applying Clause 52.06 of the planning scheme (and Clause 55.03-11 for the townhouses) results in a statutory requirement of 130 resident car spaces and 1 visitor car space. The application of these standards to this development results in a deficiency of 15 car spaces.
3. However, it has been widely held by the Tribunal that the ResCode standards provide a more realistic basis for the assessment of car parking demand for apartment buildings. Applying the ResCode standards to the subject development produces a requirement for 75 resident car spaces and 13 visitor car spaces. Considered on this basis the proposal provides an oversupply of car parking of 28 car spaces.
4. We conclude that the proposal provides a generous supply of easily accessible car spaces for future residents and their visitors. There is no reason why there should be any adverse consequences for the surrounding street network as a result of car parking demand associated with this development.

1. In relation to traffic and access there are three closely related issues:
   • Whether or not there is a preferable access arrangement for vehicles to and from the site;
   • The capability of Percy Street to absorb traffic generation from the proposed development; and
   • The need for a widening of the west side of the southern end of Percy Street, at Whitehorse Road, in accordance with the recommendation of Council's traffic engineer.
2. All vehicle movements to and from the site are to be via a single access driveway onto Percy Street. This outcome is strongly opposed by Percy Street residents. They argued that Percy Street was inadequate for this additional traffic burden because of the narrowness of its road pavement. They submitted that a better outcome would be achieved if vehicular access was from Whitehorse Road or alternatively via a combination of accesses from Whitehorse Road, Percy Street and Hardwick Street[8].
3. It is VicRoads policy to avoid creating new conflict points onto the arterial roads where it can otherwise be avoided. The permit applicant has elected to provide access from Percy Street and this has a number of significant advantages:
   • It achieves VicRoads policy objectives;
   • It is efficient in that it takes advantage of the slope of the land to avoid long steep ramps to access the upper car parking level, and;
   • It is aesthetically pleasing in that vehicles enter the land and turn left under Building B to gain access to the car parking levels, avoiding the yawning chasm of a basement ramp entry which is so commonplace for developments of this type.
4. The disadvantage is as that all vehicles entering and leaving the site must use Percy Street which is a local residential street.
5. It is Mr Kiriakidis analysis that Percy Street can absorb the additional traffic generated by the proposal without seriously comprising its traffic capacity, or causing undue amenity effects[9].
6. Percy Street has an unusual road pavement. It is a concrete pavement narrower than is typical for residential streets in the surrounding area. The consequences of this are that when vehicles park opposite each other, it is difficult for conventional motor cars to pass these parked vehicles, and impossible for larger vehicles. This situation is exacerbated when persons unfamiliar with the street use the street for parking. We were advised that this is regularly a problem when the Balwyn Cinema is particularly busy.
7. The arguments that Percy Street cannot accommodate the additional traffic generated by the proposed development, or that the intersection of Percy Street with Whitehorse Road will not function adequately as a consequence of the proposed development are not supported by the expert evidence before the Tribunal, or by council's own traffic engineers.
8. Technical arguments about road capacity arising from pavement width are, in our opinion, acceptably resolved by the applicant's acceptance of a no standing zone on the west side of Percy Street from Whitehorse Road to the proposed car park entry. A "No Standing" area on the east side of Percy Street, greater than the 10 metre minimum, could also be considered if additional measures prove to be necessary.
9. In relation to the prospect of parked vehicles north of the entry way constraining the movement of vehicles up and down the street, we make the following observations:
   • As the proposed development includes a generous provision for on site car parking, it is unlikely that the development will contribute to the incidents of parked vehicles interfering with traffic movements in Percy Street; and
   • To the extent that parked vehicles can constrain traffic movements up and down Percy Street to the north of the site, this has the advantage that it will encourage future residents of the subject land to enter and leave the site via Whitehorse Road rather than electing to travel north to Gordon Street.
10. The existing concrete pavement in Percy Street is an important part of its character. There would need to be a very compelling traffic argument in support of a widening of this road pavement, with the consequential loss of street trees and change to the visual appearance to the street, for such a change to be justified. In our opinion there is insufficient justification for such a measure. A no standing area on the west side of Percy Street between Whitehorse Road and the proposed car park entry is likely to be sufficient, additional parking restrictions can be contemplated if necessary.

1. The siting of buildings allows for in ground perimeter landscaping over the entire perimeter of the subject land. The spaces between buildings, which are in part to be used for private open space and in part for shared access, are to be landscaped utilising planters over the car park level below. There is also the opportunity to add to street tree planting adjacent to the land.
2. To the extent that we thought that the landscape opportunities provided for by the design were inadequate they can be resolved by the design changes we have discussed in paragraph 33 above. Properly implemented and maintained the proposed landscape plan will within a reasonable timeframe produce an entirely appropriate outcome.
3. The existing development of the land has a somewhat weedy and overgrown garden which, nevertheless, has a considerable landscape presence in the neighbourhood. Council's arborist and the applicant's arborist agree that none of the existing vegetation can be usefully retained. The consequence of this is that even with the careful use of advanced trees, there will be a substantial period during which the new and much larger and more intensive buildings will not be substantially softened by the proposed landscaping.
4. This is a product of urban renewal evident elsewhere in the neighbourhood. In Norbert Street to the east, a significant number of older dwellings have been replaced with larger modern dwellings. The original landscape of the street has been diminished but will recover in time. This short term change is undoubtedly an adverse outcome which will persist until their proposed landscape matures. Nevertheless it is an outcome which must be accepted if urban consolidation required by planning policy is to be achieved.

1. There were a number of criticisms in respect of internal amenity associated with some of the proposed dwellings. These criticisms related to the orientation of dwellings, or to low dwellings affected by taller buildings to the north, and the impact of these factors on solar access.
2. The Tribunal has time and time again observed that in higher density residential developments it is inevitably the case that some of dwellings will not enjoy a good solar orientation and that while this is to be regretted, it is not an unacceptable outcome. Small dwellings at the lowest levels of the proposed apartment buildings in this case may be south facing or may have outlooks to other buildings within the development across the shared spaces between buildings. This is clearly a lesser outcome than a northern aspect or a view to Balwyn North and beyond across the valley, but it is not an unacceptable outcome.

1. It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be set aside and a permit granted.
2. In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons. In particular we propose to amend conditions to:
   • Promote new street trees in Whitehorse Road and Percy Street;
   • Remove any requirement to amend the materials or roof form of Building A;
   • Remove any requirement to widen Percy Street; and
   • To avoid the imposition of ESD requirements other than those required by building regulations.

Furthermore, while we support a "No Standing" zone on the west side of Percy Street such restrictions are a matter for council as the local road authority and are not a matter for permit conditions.

1. Before the development starts, amended plans must be submitted to the satisfaction of the responsible authority. When the plans are to the satisfaction of the responsible authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and three (3) copies provided, substantially in accordance with the plans considered by the Tribunal (Job No.: 08028, Sheets TP4.01, TP4.02, TP4.03, TP4.04, TP4.05, TP4.06, TP4.07, TP5.01, TP5.02 and TP6.01, all Revision B, dated 30 October 2009, prepared by Interlandi Mantesso Architects) but modified to show:

(a) The frontage setback of the townhouses from Percy Street being not less than 6 metres;

(b) The frontage setback of Building B from Percy Street being not less than 6 metres;

(c) The setbacks to the first and second floor levels of Building B from Percy Street being increased by 5 metres;

(d) Detailed elevations of the proposed boundary fences at a scale of 1:100. The fences must be semi-transparent and the fence along the Percy Street boundary is to generally have a maximum height of 1.5m, except where a higher fence is desirable to ensure reasonable privacy within private open space to the satisfaction of the responsible authority;

(e) The use of fixed obscure glazing to a minimum height of 1.7m above finished floor level for the west facing, first floor retreat window of Townhouse 7;

(f) The provision of a sample board showing the proposed palette of materials and finishes selected. The palette should demonstrate the high quality of finishes selected and their compatibility with each other and those existing in the streetscape. Two A3 or A4 sized paper copies of the sample board are also required;

(g) The relocation of at least 50% of the visitor bicycle spaces from the Percy Street frontage to the main Whitehorse Road entrance;

(h) The design of the vehicle crossing to Percy Street to include a 60 degree splay on each side;

(i) The width of car spaces located adjacent to walls increased a minimum of 2.9m; and

(j) An annotation detailing that the external driveway will be constructed with dark coloured concrete or bitumen, coloured patterned concrete, interlocking paving blocks or brick paving to the satisfaction of the Responsible authority;

1. Before the development starts, a landscape plan must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will form part of this permit. The plan must be generally in accordance with the Landscape Concept Plan by CDA Design Group P/L but modified to show:
   • (a) Additional street trees in Whitehorse Road and Percy Street where practicable;
   • (b) The removal of tree No. 34 (Corymbia citriodora) and replacement with a large canopy tree in a similar location such as a Red Oak or similar to the satisfaction of the Responsible authority. The selected tree is to have a minimum height of 3.0m when planted;
   • (c) The removal of tree No. 18 (Liquidamber styraciflua) and replacement with a canopy tree in a similar location;
   • (d) The proposed vegetation contained within the splay at the south-eastern corner of the site not to exceed 900mm in height;
   • (e) Provision of a plan detailing the trees proposed to be removed;
   • (f) Quantities of all proposed plants and details of the proposed minimum heights when planted;
   • (g) All proposed canopy trees to the street setbacks (Percy Street and Whitehorse Road) to have a minimum height of 2.5m when planted. All other proposed trees to have a minimum height of 2.0m when planted;
   • (h) An annotation detailing that the 'Nominal Planter Bed Depths' will have a minimum depth of 1000mm - 1300mm for trees;
   • (i) The use of groundcover plantings instead of granitic gravel paving within the Percy Street landscape setbacks;
   • (j) The provision of detailed information as to the height out of the ground of the retaining wall within the west boundary setback to demonstrate that trees within this setback will have sufficient root run;
   • (k) Stepping of the retaining wall within the northern boundary setback to facilitate the siting of trees; and
   • (l) Details of surface finishes of pathways and driveways;

1. Prior to the commencement of any works, the owner must submit a Construction Management Plan to the Responsible authority for approval. No works are permitted to occur until the Plan has been approved in writing by the Responsible authority. Once approved, the Construction Management Plan must be implemented to the satisfaction of the Responsible authority. The Plan must provide details of the following:
   • (a) Hours for construction activity (including demolition);
   • (b) Measures to control noise, dust, water and sediment laden runoff;
   • (c) The location and design of a vehicle wash-down bay for construction vehicles on the site;
   • (d) The location of parking areas for construction and sub-contractors' vehicles on the site, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises and traffic flows with any basement car park on the land being made available without delay for use by sub-contractors/tradespersons upon completion of such basement car park areas;
   • (e) Measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan;
   • (f) Contact details of key construction site staff;
   • (g) The location of any site sheds and the like; and
   • (h) Any other relevant matters, including VicRoads' and Yarra Trams' requirements.

1. Prior to the commencement of the occupation of the development a Green Travel Plan (GTP) must be prepared by a suitably qualified person to the satisfaction of the Director of Public Transport.

(a) Describe the location in the context of alternative modes of transport and objectives for the GTP;

(b) Outline GTP measures for the development including, but not limited to:

• (i) household welcome packs;
• (ii) possible incentives (i.e. provision of Met Cards within the rental / ownership of apartments etc);
• (iii) cycle parking and facilities available;
• (iv) bicycle pool (if provided);
• (v) GTP management; and
• (vi) monitoring and review.

Once approved the GTP must form part of the planning permit or any ongoing Management Plan for the site to ensure the plan continues to be implemented by residents / owners to the satisfaction of the Responsible authority.

1. The layout of the site and the size, levels, design and location of buildings and works and easements shown on the endorsed plans must not be modified for any reason (unless the Boroondara Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible authority.

Conditions required by the Director of Public Transport

1. The permit holder must take all reasonable steps to ensure that disruption to tram operation along Whitehorse Road is kept to a minimum during the construction of the development. Foreseen disruptions to tram operations during construction and mitigation must be communicated to Yarra Trams and the Director of Public Transport fourteen (14) days prior.
2. The permit holder must ensure that all track, tram overhead and supporting infrastructure is not damaged or that or that works do not cause unplanned disruption to tram operations. Any damage to public transport infrastructure must be rectified to the satisfaction of the Director of Public Transport at the full cost to the permit holder.

1. Buildings, engineering works and fences must be maintained to the satisfaction of the Responsible authority.

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

1. All landscaping works shown on the endorsed landscape plans must be maintained and any dead, diseased or damaged plant replaced, all to the satisfaction of the Responsible authority.

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

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

1. Before any building is occupied, area/s set aside for car parking, access lanes and driveways shown on the endorsed plans must be constructed and formed to such levels and properly drained so that they can be used in accordance with the endorsed plans, to the satisfaction of the Responsible authority.

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

1. Car spaces must be allocated to each dwelling at a rate not less than the requirements of Clause 55.03-11 of the Boroondara Planning Scheme.
2. A minimum of 13 car parking spaces must be provided on the land for the development and set aside for use by visitors.

1. All disused or redundant vehicle crossings must be removed and the area re-instated with footpath, nature strip and kerb and channel to the satisfaction of the Responsible authority.

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

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

1. No plant, equipment, services or architectural features other than those shown on the endorsed plan are permitted above the roof level of the building/s without the prior written consent of the Responsible authority.

1. Prior to the issue of a building permit, the owner must obtain the consents of all relevant authorities for any buildings or works, including any paving, fences and landscaping, over any easement or underground services under the control of a public authority including sewers, drains, pipes, wires or cables, to the satisfaction of the Responsible authority and relevant authority.

1. The owner must accept all reinstatement costs in carrying out repairs to any buildings, works or landscaping over the easements should such buildings, work or landscaping be disturbed by any works undertaken by Council in the future.

1. The Waste Management Plan submitted with the application ("Waste Management Plan" dated 19 December 2008, prepared by Leigh Design) must be implemented to the satisfaction of the Responsible authority. The Waste Management Plan must not modified without the prior written consent of the Responsible authority.

1. Prior to the commencement of the development the easement E-1 on Title Plan 870538J (Certificate of Title Volume 11086 Folio 333) must be wholly removed by registration at Land Registry.

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

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

[1] The buildings are equivalent in height to a modern three storey building.

[2] However, abutting the land to the east is Pontefract House at 2 Hardwicke Street, a large federation dwelling affected by the site specific Heritage Overlay (H0420).

[5] In Jenak Pty Ltd v Boroondara CC [2009] VCAT 2322) the Tribunal comprising the presiding member in this matter found that because the State Planning Policy Framework strategically identifies large sites on public transport networks as preferred locations for more intensive forms of residential development then such sites should also be regarded as being within a strategic location for the purposes of

[6] In this regard, the fact that the upper levels of both buildings A and B are at the same level is central to the debate that there is an inadequate transition in scale.

[8] Via land owned by, but not in this case utilised by, the permit applicant

[9] A question which we address later is whether or not it is necessary or desirable to widen Percy Street to facilitate this outcome.