VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE DIVISION
PLANNING AND ENVIRONMENT LIST
VCAT REFERENCE NO. P333/2012
PERMIT APPLICATION NO. 0725/11
CATCHWORDS
Section 77 of the Planning & Environment Act 1987; Stonnington Planning Scheme; Business 5 Zone; Residential 1 Zone; Public Use
Zone – Local Government; Special Building Overlay; 466 dwellings in nineteen buildings; Convenience shop; Café; Maternal heath
centre; State policy; Strategic Redevelopment Site; Local policy; Large Redevelopment Site; Adopted policy; Proposed amendment to
scheme; Intersection works; Landscaping and open space; Public open space contribution; Borrowed amenity; Rail noise; Parking
APPLICANTS
Lend Lease Apartments (Armadale) Pty Ltd &
Larkfield (Orrong Road) Pty Ltd
RESPONSIBLE AUTHORITY
Stonnington City Council
REFERRAL AUTHORITIES
VicRoads, Director of Public Transport &
Melbourne Water Corporation
RESPONDENTS
The persons listed in Appendix A
SUBJECT LAND
590 Orrong Road & 4 Osment Street, Armadale
WHERE HELD
Melbourne
BEFORE
Geoffrey Code, Member (Presiding) &
Michael Read, Member
HEARING TYPE
Hearing
DATE OF HEARING
28, 29 & 30 May 2012; 1, 4, 6, 7, 8, 12, 13, 14 &
15 June 2012
DATE OF ORDER
10 July 2012
CITATION
Lend Lease Apartments (Armadale) Pty Ltd v
Stonnington CC [2012] VCAT 906
ORDER
1
The permit application is amended as follows—

2
For that part of the permit application comprising the 117-page book of
drawings entitled Design Report Volume 2 prepared by Denton Corker
Marshall Architects and dated 16 September 2011, substitute the 169page book of drawings entitled Design Report Volume 2 - Amended
prepared by Denton Corker Marshall Architects and dated 2 April 2012.
James Garrett is joined as a party.
3
The decision of the Responsible Authority in relation to permit application
no. 0725/11 is set aside.
4
A permit is granted in relation to land at 590 Orrong Road & 4 Osment
Street, Armadale. The permit will allow—
5

Use and staged development for dwellings, convenience shop, food
and drink premises (café) and maternal health centre

Alteration to access to land in a Road Zone Category 1

Reduction in the car parking requirement

Variation to the car parking design standards

Removal of native vegetation

Waiver of loading requirements

Sale or consumption of liquor from the food and drink premises (café)
The permit is subject to the conditions contained in Appendix B.
Geoffrey Code
Member (Presiding)
VCAT Reference No. P333/2012
Michael Read
Member
Page 2 of 67
APPEARANCES
For Applicants
Mr Chris Canavan QC and Mr Nicholas Tweedie of
counsel, instructed by Rigby Cooke Lawyers. They called
the following expert witnesses—
 Mr Rob McGauran, architect & urban designer,
MGS Architects
 Mr John Kiriakidis, traffic engineer, GTA
Consultants Pty Ltd
 Mr Stephen Hunt, traffic engineer, Cardno
Victoria Pty Ltd
 Mr Alan Wyatt, landscape architect, ERM
Australia Pty Ltd
 Mr Rob Galbraith, arboriculturist, Galbraith &
Associates
 Mr Peter Lovell, heritage conservation consultant,
Lovell Chen Architects & Heritage Consultants
 Mr Stuart McGurn, town planner, ERM Australia
Pty Ltd
 Mr Robin Brown, acoustic engineer, Renzo Tonin
& Associates (Vic) Pty Ltd
 Mr Andrew Biacsi, town planner, Contour
Consultants Australia Pty Ltd
They also called Mr John Denton, architect, Denton
Corker Marshall Architects, to describe the proposal and
outline the design philosophy at the start of the hearing.
Mr Denton did this by reference to a powerpoint
presentation, a video fly-through, and an architectural
model.
VCAT Reference No. P333/2012
Page 3 of 67
For Responsible Authority Mr Stuart Morris QC and Ms Susan Brennan of counsel,
instructed by Norton Rose Lawyers. They called the
following expert witnesses—
 Mr Craig Czarny, urban designer & landscape
architect, Hansen Partnership
 Mr Andrew O’Brien, traffic engineer, O’Brien
Traffic
 Mr Mark O’Dwyer, architect & urban designer,
H2O Architects Pty Ltd
 Mr Robert Milner, town planner, 10 Consulting
Group Pty Ltd
For Referral Authorities
Mr James Noy, Planning Referrals Coordinator,
Department of Transport (for Director of Public
Transport)
Mr Martin Vegt, Senior Road Access Planner, VicRoads
(for VicRoads)
Melbourne Water Corporation, no appearance
For Respondents
Mr Paul Connor of counsel (28, 29 & 30 May 2012),
instructed by Francis Gallichio solicitor, for
individuals part of an unincorporated group known as
‘the Orrong Group’, being Respondent nos 4, 5, 6, 7,
15, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79,
80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91 & 92 listed
in Appendix A.
Mr Peter Avery, for Peter & Gaye Avery
Ms Kim Hyde, for Kim & Brad Hyde
Ms Elaine Brennan, for Elaine Brennan & Gary Lloyd
Mr Brett de Hoedt, for John Watt & Marie Watt
Ms Charysse Nixon, for Miodrag Galic
Ms Helen Mann, for Amiel & Rita Kornhauser, Timoli
Mustica & Steven Mustica, Linda & Ian Paterson, &
Margaret Penhalluriack
Mrs Margot Carroll, for Margot Carroll, Desmond
Carroll & Barbara Dickenson
Ms Louise Willis, for Maureen Duffy
Mr John Arup, for John & Lisa Arup
Ms Sally Scott, for Sally Scott & David Fiddes
Mr Tony Lewis, for Tony & Keren Lewis
Mr Peter Mathews, for Peter & Miranda Mathews
VCAT Reference No. P333/2012
Page 4 of 67
The following Respondents appeared in person—
Roger Bourne, Colin Jones, James Hayman, Richard
Ford, Jill Davies, Bronte Neyland, Max Goonan, Lynette
Stewart, Jennifer Erdos, Lawrie Mann, John Perry,
Cameron Stewart, Margaret Pittaway (with Pippa Batten)
No appearance by other Respondents
VCAT Reference No. P333/2012
Page 5 of 67
INFORMATION
Brief description of
Proposal
A residential complex of 466 dwellings, comprising
448 apartments and 18 townhouses.
Nature of Proceeding
Application under section 77 of the Planning and
Environment Act 1987
Zone and Overlays
(Stonnington Planning
Scheme)
Business 5 Zone (B5Z)
Residential 1 Zone (R1Z)
Public Use Zone – Local Government (PUZ6)
The land abuts land in a Road Zone Category 1
(Orrong Road) (RDZ1)
Permit Requirements
(Stonnington Planning
Scheme)
Clause 34.05-1 (use of land in B5Z for convenience
shop, food and drink premises (café) and maternal
health centre)
Clause 34.05-4 (buildings and works on land in B5Z)
Clause 32.01-1 (use of land in R1Z for convenience
shop, food and drink premises (café) and maternal
health centre)
Clause 32.01-4 (constructing two or more dwellings
on a lot in R1Z)
Clause 32.01-6 (buildings and works for convenience
shop, food and drink premises (café) and maternal
health centre on land in R1Z)
Clauses 36.01-1 & 36.01-2 (use of land in PUZ6 for
dwellings, convenience shop, food and drink
premises (café) and maternal health centre and
buildings and works for these uses) (The required
consent of the land manager has been obtained)
Clause 44.05-1 (buildings and works on land in SBO)
Clause 52.06 (reduction in the car parking requirement
for the non-residential uses and for residential
visitor parking, and variation in design standards for
small spaces and tandem pairs)
Clause 52.07 (waiving of loading requirements for
convenience shop, food and drink premises (café)
and maternal health centre)
VCAT Reference No. P333/2012
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Clause 52.17-2 (removal, destruction or lopping of
native vegetation on a lot exceeding 0.4 ha)
Clause 52.27 (use of land to sell or consume liquor in
food and drink premises (café))
Clause 52.29 (alteration of access to Orrong Road)
Relevant policies and
provisions (Stonnington
Planning Scheme)
Clauses 11.01, 15.01, 15.02, 15.03, 16.01, 17.01,
18.01, 18.02, 19.02, 21.01, 21.02, 21.03, 21.05, 22.02,
22.04, 22.05, 22.06, 22.07, 22.10, 22.12, 22.13, 22.14,
22.15, 52.06, 52.07, 52.17, 52.34 & 65
Land Description
The land is on the east side of Orrong Road between
High Street and Malvern Road. It abuts the north
boundary of the Toorak Park reserve and the Victory
Square reserve. It is irregular in shape. Along the
north boundary of the land is a pedestrian path
between Orrong Road extending east to Toorak
Railway Station. The north-east boundary abuts the
Railway reserve. The south boundary abuts Osment
Street, Victory Square and Toorak Park. The primary
frontage to Orrong Road is about 70 m. It has an area
of about 2.49 ha. It is a consolidated site of ten land
parcels.
The main building on the land is a large 1959 fivestorey office (with a smaller projecting structure to
seven storeys) generally constructed along the
southern boundary. It is currently largely vacant.
There are other mainly single-storey buildings. There
is extensive surface car parking (for about 300 cars)
and a disused municipal works depot.
Tribunal Inspection
VCAT Reference No. P333/2012
29 May 2012 (accompanied)
Page 7 of 67
REASONS1
Introduction
1
This is proceeding about a significant residential development on a large
site in Orrong Road, Armadale that adjoins Toorak railway station (the
station) and the Toorak Park Reserve.
2
Many nearby residents near the land are strongly opposed to the
development proposed by the Applicants, especially its scale and design.
The Council unanimously refused a permit for the development on a range
of grounds, including its scale and design. The Applicants have applied to
the Tribunal to review that decision. A significant number of the residents
are respondents in the proceeding.
3
The Stonnington Planning Scheme does not currently clearly articulate a
preferred built form outcome for the land.2 Consequently, resolving the
appropriate scale and design mainly requires integrating and balancing the
relevant State and local policies in the scheme in favour of net community
benefit and sustainable development for the benefit of present and future
generations.3
4
Our main finding in this proceeding is that after balancing and integrating
the relevant policies, and having regard to other relevant matters as set out
in these reasons, the development has a net community benefit, is
sustainable development and is an acceptable planning outcome. A permit
will be granted subject to conditions.
Proposal
5
The proposal contains a total of nineteen buildings (labelled Buildings A to
S) ranging in size between two and twelve storeys. The buildings are
located in four separate precincts. The buildings contain 466 dwellings,
comprising 448 apartments (in sixteen buildings) and eighteen townhouses
(in three buildings).
6
There are eleven apartment buildings of four to twelve storeys that each
have a square floorplate with about 21 m sides. All but three of these
1
We have considered the submissions of all the parties that appeared, all the written and oral
evidence, all the exhibits tendered by the parties, and all the statements of grounds filed by parties
that did not appear. We do not recite or refer to all of the contents of those documents in these
reasons.
We also observe in passing that all the planning expert witnesses agreed that the zones affecting
most of the subject land (ie B5Z and PUZ6) were outdated now that the former office and
municipal works depot uses had ceased. The proposal is not prohibited under those zones and
permits are required for various aspects of the proposal, as stated in the ‘Information’ section,
above. We have considered existing zone provisions and their relevance has withered and their
purposes are no longer relevant to determining the proper and orderly planning of the subject land.
There was broad agreement that, at some future date, the scheme should be amended to better
reflect the subject land’s suitability for a new largely residential use.
The scheme cl 10.04.
2
3
VCAT Reference No. P333/2012
Page 8 of 67
buildings are connected on at least one side by five other apartment
buildings of four to six storeys.
7
Eight of the apartment buildings are aligned with one side facing north.
Having regard to the north-west to south-east alignment of the railway (and
hence the east boundary of the land), four of those buildings (Buildings F,
G, I and K) present as rotated so that a corner faces the railway reserve. The
five buildings adjoining Toorak Park are on a different alignment so that
they have one side facing south-west to Toorak Park.
8
An internal no-through road (called the ‘boulevard’) extends eastwards
from Orrong Road. As it descends relative to grade it gives access to two
basement car parks for all the apartments. It then reaches a turning circle in
an open area called the plaza, after descending overall about five metres.
The plaza level is about the same level as the station entrance. The
boulevard and plaza therefore provide a new pedestrian access to, and
commuter drop off access to, the station. Between the plaza and the station
entrance is an open space which we call the ‘station forecourt’.
9
The basements include 681 car spaces.
10
The apartments vary in size. There are 154 one bedroom (or one bedroom
plus study), 237 two-bedroom and 57 three-bedroom apartments.
11
There are three townhouse buildings of two to three storeys in the Osment
precinct in the south-east corner of the land.
12
One of the townhouse buildings fronts Osment Street and contains four
two-storey townhouses with double garages from Osment Street. One fronts
the pedestrian path and contains seven three-storey townhouses with
tandem garages from an internal triangle-shaped drive in a shared zone
(called the ‘Osment triangle’) off the right-angled intersection of Osment
Street and Ashleigh Street. One fronts Victory Square reserve and contains
seven three-storey townhouses also with double garages from the Osment
triangle.
13
The proposal includes a convenience shop (165 sq m), café (195 sq m) and
maternal health centre (157 sq m) at the plaza. It also includes ancillary
facilities for residents such as a pool, gym and multi-purpose rooms. There
is also commuter parking for 74 bicycles in the station forecourt.
14
There is one main open space area, called the ‘central green’. It is about 110
m long and up to 35 m wide and generally located between the buildings
abutting the rail reserve and Toorak Park. It will be publicly accessible open
space and will provide an alternative pedestrian route between Osment
Street and the station. There are a variety of other smaller spaces. They
include a ‘west village green’ adjoining the path near Orrong Road and an
‘east village green’ adjoining the rail reserve south of the station forecourt.
There is also a path along the Toorak Park interface that connects to the
boulevard.
VCAT Reference No. P333/2012
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15
The apartments have either a ground level private open space or a balcony.
Twenty apartments have large roof terraces. The townhouses have ground
level private open space and balconies.
Context
16
In this section of the reasons, we refer briefly to the natural or physical
context and to the land’s opportunities and constraints for development. We
refer to the policy or strategic context in the following section.
17
Development in the broader surrounding area is predominantly residential,
comprising mainly one and two-storey attached and detached Victorian and
Edwardian era dwellings with relatively small setbacks. Some dwellings
have on-site car parking. Mature street trees are an important feature and
add to neighbourhood amenity. There are some infill apartment buildings of
three to four storeys from various eras. There are two apartment buildings
of eight and ten storeys to the west of the subject land in Sydney Street near
Orrong Road.
18
The immediate physical context of the land is, however, very different.
There are no residential abuttals, in the strict sense. The subject land has a
perimeter of 823 m, comprising 69 m to Orrong Road, 127 m to a
pedestrian path between Orrong Road and the station, 282 m to the railway
reserve, 62 m to Osment Street, and 282 m to parkland (Toorak Park and
Victory Square). Hence, all of the perimeter abuts public land used for
roads, paths, rail and parks. Nearly 70 percent of the perimeter abuts
railway land and parkland.
19
The land is developed for a substantial office building, constructed in 1959.
It is about 160 m long and generally has five storeys but with a seven storey
central projection. There is extensive surface car parking for about 300 cars.
There are other mainly single-storey buildings associated with a former
municipal works depot off Osment Street.
20
The nearby physical context includes—

To the north, a single storey dwelling and a east-west line of twostorey terrace dwellings on the south boundary of a complex known as
Tillotson Terrace on the north side of the abutting 2 m wide pedestrian
path.

To the south-east, on the south side of Osment Street, four single and
double-storey dwellings.

To the north-east, the sunken rail line and station. The station roof
projects slightly above the cutting embankment. There is a path along
the rail line between Osment Street and the station. The station is
accessed via both the rear and north path.
VCAT Reference No. P333/2012
Page 10 of 67

21
22
On the north-east side of the station is Beatty Avenue, consisting of a
small strip centre and some one and two-storey dwellings. The
Armadale primary school is further to the east of Beatty Avenue.
The following factors give rise to the main opportunities for development—

It is a large site (about 2.5 ha) that is only 6 km from the Melbourne
CBD.

It has a generous (about 69 m) main road frontage to Orrong Road.

It has excellent access to public transport. As well as access to trains to
on the Frankston and Dandenong/Cranbourne lines, Orrong Road is a
priority bus route, and tram services are nearby on both Malvern Road
and High Street.

It abuts the entrance to the station and a path along the rail reserve over
about 280 m along its north-eastern boundary.

It has limited residential interfaces (as referred to, above).

It is in an area relatively rich in public open space for Stonnington and
Armadale, in particular. It abuts Toorak Park and Victory Square on its
south boundary. On the west side of Orrong Road is the Orrong
Romanis reserve.

It is near the small Beatty Avenue activity centre and is within walking
distance of the much larger Malvern activity centre on High Street.

The existing tired buildings and inefficient use of the land.
The main constraints for development are—

The mainly one and two-storey residential development in the broader
surrounding area to the north, east and south.

Nearby heritage precincts to the east and south.

The unusual shape of the land, angling to the south-east with a
diminishing width.

Interface issues to a limited number of dwellings to the north and
south-east, the railway to the north-east, and the parks to the south.
VCAT Reference No. P333/2012
Page 11 of 67
Policy
23
The scheme requires us to have regard to the State and local policy
framework.
State policy
24
The proposal responds positively to urban consolidation policy regarding
housing location, diversity and affordability.4
25
The land is a strategic redevelopment site (SRS).5 A SRS is a site identified
for ‘large’ residential development. The intensity of development of a SRS
is guided by its context and future character and by the change anticipated
in local policy.6 We will return to these matters shortly.
26
For the reasons set out later in these reasons, the proposal responds
positively to State urban design policy.7
27
The proposal responds well to transport policy. Although the subject land is
not in or around a higher order activity centre,8 it helps ensure an integrated
and sustainable transport system. The proposal is consistent with transport
system policy to—
Encourage higher land use densities and mixed use developments near
railway stations … tramways and principal bus routes. Pedestrian and
cyclists access to public transport should be facilitated and safeguarded.9
28
The proposal should not be rejected because new residents will struggle to
board currently overcrowded trains. It is policy to upgrade train services. It
is also policy to—
Achieve greater use of public transport by increasing densities, maximising
the use of existing infrastructure and improving the viability of the public
transport operation.10
29
Mr Noy, on behalf of the Director of Public Transport, submitted that the
Government wants to enhance train capacity. For example, it supports the
eventual construction of a nine kilometre twin rail tunnel between South
Kensington and South Yarra. We agree with the following passage from Mr
Noy’s submission—
The [proposal] will bring increased patronage and it is the role of
Government and public transport providers to respond to increased
patronage as appropriate.
30
The proposal responds satisfactorily to infrastructure policy.11
4
The scheme cll 16.01-2, 16.01-4, 18.01-1.
The scheme cl 16.01-3.
Abbotsford Joint Venture Pty Ltd v Yarra CC [2012] VCAT 146 at [50].
The scheme cl 15.01-2. See these reasons under ‘Design response’.
The scheme cl 18.01-1 Strategies, third dot point.
The scheme cl 18.01-2 Strategies, seventh paragraph.
The scheme cl 18.02-3 Strategies, seventh paragraph.
5
6
7
8
9
10
VCAT Reference No. P333/2012
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31
In relation to health infrastructure, the maternal health centre would enable
the Council to close a similar nearby centre and reuse the facility for other
purposes.
32
In relation to education infrastructure, Ms Davies, on behalf of the
Armadale Primary School Parents and Friends Association, opposes the
proposal because the school does not have capacity for additional students.
The school is constrained by a small site and heritage buildings. Students
currently walk across the station, past the subject land, cross Orrong Road
at the pedestrian lights and exercise at Orrong Romanis reserve.
33
While we appreciate the school’s difficulties, the Government will need to
increase capacity in the zone if and when demand increases. The proposal
should not be refused based on perceived current difficulties in meeting
future demand. Some parties estimated that 50 students could be living on
the subject land in about ten years and seeking enrolment. It appears that
even if the proposal does not proceed, the trend is for continuing enrolment
increases, in part due to demographic changes and other housing projects in
the school’s zone.
34
Neither the school nor the Education Department has opposed the proposal
on education facility grounds. Although there may be inconvenience for
students walking to Orrong Romanis reserve during construction, the
students will ultimately benefit from a safer and pleasanter walk along the
south side of the boulevard and to a new pedestrian crossing near Sydney
Street.
35
In relation to pre-school facilities, Ms Neyland reported long waiting lists
for child care and kindergartens. Again, private and public providers will
need to meet any additional demand created by the proposal and any current
shortage is not a proper reason to refuse a permit.
36
To complete our consideration of State policy, we now wish to say
something about neighbourhood character policy and activity centre policy.
37
The Council and many residents submitted the proposal failed to respond to
neighbourhood character policy. They argued it did not ‘reinforce special
characteristics of [the] local environment and place’ because it did not
‘[emphasise] … the built form that reflect[s] community identity [and] the
values, needs and aspirations of the community’.12 They relied on the broad
resident opposition to the proposal (about 600 objections to the Council and
about 100 statements of grounds in this proceeding) and the Council’s
unanimous refusal.13
11
The scheme cl 19.
The scheme cl 15.01-5.
They also relied on the community consultation undertaken in mid 2011 when the Council
prepared an urban design framework for the subject land (referred to later in these reasons).
12
13
VCAT Reference No. P333/2012
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38
We are exercising an administrative review power. It must be exercised in
accordance with law. We must not have regard to irrelevant considerations.
The extent of resident opposition per se is one of these.14
39
The neighbourhood character policy also seeks to ensure development
‘responds to its context’. We take this to be the natural, cultural and
strategic context.15 We have already identified the context and we consider
the proposal does, in broad terms, respond to that context.
40
Values, needs and aspirations of the community are difficult concepts and
this is not the occasion for a deep analysis. As with all policy, it must not be
read as a statute but applied flexibly and in the broader policy context.
41
‘Community’ does not expressly refer to ‘local community’ and it does not
follow that the policy only applies to local community. The wider
community is not excluded from the policy. Indeed, State policy requires us
to integrate policies in favour of ‘net community benefit’ which, at State
level, must mean something broader than the local community. The
opposition per se to the grant of a permit is not an expression of ‘values or
needs’. We would hesitate to characterise the residents’ objections as an
expression of the aspirations of the local community.16 Nonetheless, we
must carefully consider and give weight to objections and we have done
that.
42
The Council tendered a document prepared by its community consultation
consultants in July 2011 about development of the subject land. It states the
Council invited residents, by letter box drop in an unspecified area, to
consultation sessions to express their ‘ideas and concerns’. About 100
residents attended six sessions. Residents were asked to generate
‘principles, values, concerns, paradigms and guidelines’ to inform the
preparation of an urban design framework for the land.
43
We make two brief observations about the document. First, we doubt any
aspirations expressed by only 100 residents could be said to representative
of the community, even the immediate local community. Second, it
confirms divergent views on perhaps the most contentious issue, being
building height and scale. It states residents expressed a range of aspirations
for buildings of between two and fifteen storeys, with a ‘majority’ in the
five to ten storey range.
44
In September 2011, the Council sent 13,000 residents (in an unspecified
area) a copy of a draft of an urban design framework for the land that it had
prepared and they were invited to respond to a survey. There were 120
responses from residents of ‘Armadale, Prahran and Toorak’. Reports to the
Council indicated that there continued to be a range of community views.
14
Minawood Pty Ltd v Bayside CC [2009] VCAT 440 at [28]-[29].
The scheme cl 15.01-2 Strategies, Context, first dot point.
If local community was confined to the Armadale community, we further observe that a number of
objectors were resident outside Armadale.
15
16
VCAT Reference No. P333/2012
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Specifically, those reports state that fewer than 25% of respondents stated
the draft framework reflected their ‘ambitions’ for the subject land.
45
The Council is best placed to express values, needs and aspirations on
behalf of its community. We have, of course, carefully considered the
Council’s refusal and its submissions in this proceeding. The structure of
the scheme is that Council may identify relevant values, needs and
aspirations in local policies and provisions. It is relevant that Council’s
vision statement identifies the land as a redevelopment opportunity and has
included an urban design policy (to which we will refer shortly) and has not
included a preferred built form outcome for the land.
46
It is also relevant to place the State provision in context. The policy
specifically provides that ‘[p]lanning should achieve high quality urban
design and architecture that … [r]eflects the particular characteristics,
aspirations and cultural identity of the community’. The policy does not
expressly refer to ‘local’ community. Various objectives then identify the
aim of that policy, one of which is ‘to recognise and protect cultural
identity, neighbourhood character and sense of place’. The ‘values, needs
and aspirations’ provision is an implementation strategy. It is not the policy
itself. If we are asked to consider aspirations as defined by a significant
number of objections, the policy of high quality design and architecture
would not then be measured by popularity per se but by objections based on
relevant considerations, including policy.
47
The Council also asked us to give weight to activity centre policy that
applies a context and character restraint to higher density residential
development in a neighbourhood activity centre.17 This restraint does not
apply to a major or principal activity centre.
48
Activity centre policy is not central to this proceeding. Beatty Avenue is a
lower order neighbourhood activity centre.18 Nothing in the scheme,
including the strategic framework plan, identifies the land as part of the
NAC. Although the land is partly zoned B5Z, it has never functioned or was
intended to function as part of the neighbourhood activity centre. It is
separated by a rail reserve about 50 m wide. Mr Milner accepted that
proximity to the Beatty Avenue neighbourhood activity centre supports
greater intensity on the subject land, but not the same intensity as if in a
major activity centre. In this proceeding, we conclude that SRS policy is
more relevant than activity centre policy.
17
See eg Abbotsford Joint Venture Pty Ltd v Yarra CC [2012] VCAT 146 at [19]; Richmond Icon
Pty Ltd v Yarra CC [2011] VCAT 2175 at [7] & [33].
The scheme cl 22.09.
18
VCAT Reference No. P333/2012
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Local policy
49
Local policy, at a broad level, seeks to insulate most established residential
areas in Stonnington from significant change. The main opportunities for
significant change are in the higher order activity centres and on ‘large
redevelopment sites’.19
50
The strategic framework plan shows the land as a large redevelopment site.
The identification of the land in this way is important because there are only
a few sites so identified. Applying a design and development overlay to
manage the development of large sites is an implementation tool to achieve
the housing diversity objective.20 The land was first identified as a large
redevelopment site in 2007 but that no design and development overlay has
been applied to manage its development.
51
However, there is no built form local policy vacuum for the land. The urban
design policy provides guidance. It ‘directs higher scale development’ to
large sites identified on the strategic framework plan. It also ‘encourages’
the development of large sites that is consistent with the role and character
of the surrounding area and commercial and residential strategies’.21
52
The most relevant policy is the one specifically for large sites (the large
sites policy).22 It provides—
On large sites, over 0.5 of a hectare in commercial areas and 1 hectare in
residential areas, in business, industrial, residential or public land zones,
higher scale development [is] encouraged if the applicant has demonstrated
satisfactorily that:

The proposed development is consistent with the role and character of
the area or will stimulate restructure of surrounding land.

Buildings are designed to reflect and complement the built form
character of the surrounding area.

Buildings are scaled down to integrate with any abutting residential
properties.
53
Although it is also part of the same policy to maintain the character of the
area,23 the large sites policy is an exception to that policy and therefore does
not use the language of ‘maintain’. A change to character is contemplated
by the large sites policy.
19
The scheme cl 21.02-2 ‘Height & Density’ second dot point; cl 21.03-1 ‘Locations for Housing
Diversity’ first dot point; cl 22.02-1.
The scheme cl 21.02-1 ‘Implementation’ second dot point.
The scheme cl 22.02-2.
The scheme cl 22.02-3 eighth dot point. We have considered the policy for land outside what we
loosely describe as the Chapel Street activity centre (the seventh dot point in cl 22.02-3) but it
applies to all sites (including small sites). It is therefore less relevant than the large sites policy.
This conclusion is confirmed by proposed Amendment C153 (referred to later in these reasons)
which excludes development of the subject land from the operation of the ‘all sites outside Chapel
Street’ (ie the seventh dot point) policy.
The scheme cl 22.02-3 first dot point.
20
21
22
23
VCAT Reference No. P333/2012
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54
We will now examine each of the three dot point qualifications. We will
refer to various nuances in their meaning but emphasise that the first dot
point refers to ‘character of the area’ and the second dot point refers to
‘built form character of the surrounding area’. We therefore infer that the
draftsperson did not intend that character in the first dot point embrace built
form character.
55
The first qualification of the large sites policy encourages ‘consistency’
with the ‘role and character of the area’.24 We adopt the approach of the
Tribunal in Rowcliffe Pty Ltd v Stonnington CC25 in finding that residential
development (albeit in this case with minor supporting commercial use such
as a café) is consistent with the residential and minor commercial (ie the
Beatty Avenue centre) character of the area on the opposite sides of Orrong
Road and the railway.
56
The second dot point qualification encourages a design that reflects and
complements the built form character of the surrounding area. The meaning
of ‘reflect’ and ‘complement’ were extensively canvassed at the hearing,
with recourse to dictionary meanings. In the context of applying policy
rather than statute, we adopt what was stated in Rowcliffe that reflect and
complement do not mean replicate and contemporary architecture is not
precluded.26
57
As well, and as acknowledged by Mr Czarny, Mr O’Dwyer, Mr McGurn
and Mr Biacsi (but not Mr Milner), a large site may create its own character
provided it respects and responds to surrounding character. In this case, the
land is up to five times the size of the threshold for the large sites policy
and therefore a new character is more likely.
58
The Council and residents invited us to accept that, although residential
development in the immediate vicinity of the land was one and two-storey
built form, the existing largely five-storey office building on the land
defined the built form character of the surrounding area. They submitted
that only a development with a five-storey maximum height would reflect
and complement that character. In doing so, they fall into the error of
adopting replication, in the sense of replicating existing development of the
land and not surrounding development.
59
We also adopt the view expressed in Rowcliffe that built form character
comprises a broad range of factors, and not just building height or scale.27
There are two meanings of ‘complement’ in dictionaries. In general terms,
one is to add so as improve or emphasise existing features and the other is
to add so as to complete. In a built form assessment when other policies
24
The ‘stimulate restructure’ alternative is not relevant for present purposes. We also do not draw an
particular importance to the first dot point’s reference to ‘area’ and the second dot point’s
reference to ‘surrounding area’.
[2004] VCAT 46 at [92]-[93].
[2004] VCAT 46 at [92]-[93].
[2004] VCAT 46 at [92]-[93].
25
26
27
VCAT Reference No. P333/2012
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encourage significant change, we find neither particularly helpful and this
confirms standard interpretation techniques can be unhelpful in a policy
context.
60
The proposal largely creates a new built form character that respects the
character of the surrounding area. It is quality architecture with quality and
varied finishes (to which we will refer later in these reasons). It improves
public access through the land to the station, to the three nearby parks, and
to nearby activity centres. Residents of the surrounding area will be able to
relax over a coffee in or outside the café or with a book in more than one of
the open spaces.
61
The Council and many residents asked us to adopt what they submitted was
the conclusion in RTS Technologies Pty Ltd v Stonnington CC28 that a fivestorey contemporary building in Beatty Avenue would not respond to the
distinctive heritage character of the Beatty Avenue precinct. This case must
be distinguished because it concerned the heritage impact of a proposal in
that heritage area. We explore heritage issues later in these reasons.
62
The third dot point qualification encourages a scaling down of development
to integrate with the abutting residential properties. We agree with the view
expressed in Rowcliffe that to ‘integrate with’ is also synonymous with to
‘respect’.29 As the policy relates to higher scale development, the provision
contemplates an outcome of higher built form at the interfaces provided it
respects abutting properties. Abutting land in its ordinary usage means land
that touches the subject land. We doubt this strict approach was intended
because land that is very close but does not touch would be excluded. This
makes little sense with larger sites. We consider ‘nearby’ land in a close and
interface sense better captures what was intended.
63
The nearby residential properties are therefore—

The single-storey dwelling at 608 Orrong Road located on the north
side of path along the north boundary of the land.

The line of terraces on the south-east boundary of Tillotson Terrace on
the north side of the path but further to the east.

The four north-facing one and two-storey dwellings located in Osment
Street, separated from the land by the street itself.
64
Mr Milner’s opinion was that the dwellings in Beatty Avenue, south-east of
Rose Street, were abutting properties. We disagree with him and consider
they are not ‘nearby’ in a close and interface sense for the purposes of this
policy. They are about 50 m away and separated by the railway lines. The
railway lines are a wider and stronger barrier than either the path or Osment
Street.
28
[2012] VCAT 570 at [22].
[2004] VCAT 46 at [92]-[93].
29
VCAT Reference No. P333/2012
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65
The proposal adequately scales down to the Orrong Road dwellings because
the six-storey section of Building B is scaled down to the four storeys of
Building A near that dwelling. Building A is setback between 6 m and 8 m
from the nearest point of the dwelling’s land, is on the south side of the
dwelling, and does not impact on the dwelling’s rear yard. It is also relevant
that the dwelling (and its neighbour) is in the B5Z and may be redeveloped
for non-residential use.
66
The proposal adequately scales down to the line of terraces because the
building facing those terraces (Building E) has five storeys (but with the
fifth storey setback) and is setback 7 m from the boundary of the subject
land. It is also setback 9 m from the nearest point of those terrace’s small
rear yards and between 13 m and 16 m from the nearest south-facing wall of
the terraces. Building E is also on the south-east side of the terraces. The
terraces are oriented to the north-west (with their front doors and front
yards) and away from Building E. Although the Council’s submissions
were that there was inadequate scaling down, its urban design framework
(to which we will shortly refer) supports a five-storey building set back 6 m
from the boundary of the subject land.
67
Building E is connected to and is between the nine storeys of Buildings D
and F. Buildings D and F are rotated relative to the terraces so that a
building corner (and not a side) faces the terraces. This has the effect of
increasing the setback along the sides so that the next corners of the
building (to the east and south) are setback over 20 m.30 The west face of
Building F and the north face of Building D are on the oblique between 12
m and 35 m from the nearest terrace rear yard.
68
The proposal adequately scales down to the nearby single and double-storey
dwellings in Osment Street because Buildings S, facing Osment Street,
contains the two-storey townhouses. Buildings R and Q, adjoining Victory
Square and the railway (respectively) and not Osment Street, contain the
three-storey townhouses.
69
There are other relevant local policies in the scheme, other than the large
sites policy. We have considered those policies, but not addressed them in
these reasons. In summary, the most relevant local policy is the large sites
policy. The proposal adequately responds to local policy.
30
We further observe that the Department of Human Services, as owner of all the terraces, does not
oppose the proposal but that at least one resident does oppose the proposal.
VCAT Reference No. P333/2012
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Adopted policy
70
The Council has adopted a policy relevant to the proposal. It is not included
in or referred to in the scheme. It nonetheless warrants consideration under
section 60 of the Planning and Environment Act 1987. We have decided to
give that policy little weight.
71
In July 2011, and before the Applicants filed the permit application, the
Council began preparing an urban design framework (UDF) to guide the
Council’s preferred development of the land. The Council resolved to do so
after refusing an earlier request by the Applicants to prepare an amendment
to the scheme to facilitate an earlier version of the proposal.
72
The Council engaged Mr Czarny’s firm to guide its preparation. As
previously stated, the Council also conducted six sessions with about 100
residents to ‘express their ideas and concerns’ about development of the
subject land to inform the UDF.
73
In November 2011, while it was considering the permit application, the
Council formally adopted the UDF. It included some key changes to the
draft UDF recommended by Mr Czarny. Some features were unchanged,
such as the proposed locations of about twelve buildings (five in podium
form) with taller forms more centrally located, the streets, and the broad
public open space extending from Toorak Park to the station. However, two
key changes were made. First, the six taller buildings were stated to have a
maximum height of 17 m (or about five storeys). Second, a cap of 250
dwellings was included.
74
We have given this policy little weight for a number of reasons. Neither Mr
Czarny nor the Council’s officers recommended the two later changes. The
Council’s independent urban design expert, Mr O’Dwyer, also did not
support the changes. Mr Czarny conceded as ‘ambitious’ the large area of
proposed public open space between Toorak Park and the station.31 The
Council’s submissions opposed some features in the proposal that are
consistent with the UDF outcomes, indicating that its commitment to the
UDF was not resolute. We are left with doubts the UDF can withstand
detailed scrutiny.
Proposed amendments to the scheme
75
There are three relevant amendments to the scheme – Amendments C152,
C153 and C161. We have considered each of them, but none are worthy of
such weight as to justify refusal of a permit or amending the proposal.
31
The public open space also fails to properly refer to the requirements of the scheme. We address
requirements for public open space for dwelling developments later in these reasons. We also
record that the Applicants’ architects’ figures show the proposal uses 13% of the land for road (4%
less than the UDF), 52% is open space (13% more than the UDF) and its building footprint is 35%
(9% less than the UDF) (exhibit A17). These figures suggest that the development envisaged under
the UDF is not more open in nature than the proposal.
VCAT Reference No. P333/2012
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Amendment C152
76
On 26 October 2011, while considering the permit application and before
finally adopting the UDF, the Council asked the Minister for Planning to
prepare interim planning controls based on a draft of the UDF. The
provisions in C152 expressed a preference for a maximum building height
of 17 m (a permit may have been granted for taller buildings), a maximum
of two vehicle access points to Orrong Road, a 15 m street wall along the
main internal road from Orrong Road and built form hard to the north edge
of Victory Square. There were no restrictions as to site coverage or
dwelling numbers.
77
On 23 May 2012, five days before the start of this hearing, the Minister
refused the request. The Minister stated in correspondence to the Council
that C152, if approved, would prohibit the proposal in the permit
application. There is therefore no need to further consider C152, other than
to observe it is the first of a number of preferred different development
outcomes expressed by the Council.
Amendment C153
78
When it adopted the UDF in November 2011, the Council also resolved to
prepare Amendment C153 to incorporate the adopted UDF in permanent
planning controls and to seek the Minister’s authorisation to prepare and
give notice of the amendment. On 23 May 2012, the Minister granted that
authorisation. Exhibition started on 7 June 2012.
79
C153 includes the subject land in Development Plan Overlay Schedule 2.
The effect of the overlay is to entrench the UDF. It requires the preparation
of a UDF-based development plan, including a 17 m maximum building
height and no more than 250 dwellings. It requires any permit granted to be
generally in accordance with either the UDF (if granted before the
development plan is approved) or the approved development plan. The
proposal would therefore be prohibited, if C153 were approved.
80
C153 has not reached a stage at which we should give it weight as a
seriously entertained planning proposal. Nonetheless, in deciding what
weight to give C153, we have considered a number of factors.
81
C153 is underpinned by an adopted policy, the UDF. The UDF was also
prepared with expert advice and after significant public consultation. These
factors operate to give C153 somewhat more weight.
82
However, there are other factors that lead us to conclude that C153 should
be given little weight.
83
We have already referred to the C153 provision for maximum building
heights and number of dwellings were later changes not recommended by
either Mr Czarny, the Council’s officers or the Council’s expert witnesses.
VCAT Reference No. P333/2012
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84
On behalf of the Council, it was submitted that the changes were based on
‘sound principles and logic’ related to the scale of existing buildings, social
infrastructure capacity and a ‘sense of place’. It was also submitted that it
would result in a density of 100 dwellings per hectare which was ‘not
atypical’ for apartments. These submissions were not explained or justified.
The reasoning also ignores the underlying issue that, prima facie, a SRS
does not warrant a typical approach.
85
C153 also contains a requirement that vehicle access to the land from
Orrong Road be provided in a new single access at the south end of the
Orrong Road frontage.32 The Council has already disregarded this
requirement in refusing to grant a permit for the proposal on the grounds
there should be a single access at the north end. If the Council has changed
its mind, after seeking expert traffic advice, it should not have proceeded
with C153 in this form. The result is a rushed and uncertain proposed
amendment.
Amendment C161
86
The Council has prepared, received authorisation and exhibited Amendment
C161. The submissions closing date has passed and, at the hearing, the
Council submitted it would soon request appointment of a panel. C161
implements a major review of the scheme and includes an updated MSS
and new local policies. It appears relatively neutral in impact in relation to
this proceeding.33 None of the parties rely on C161 and we therefore do not
consider it in any detail.
Design response
87
We now deal with a range of design response issues that were in contention.
Built form and visual impact
88
The Council and many residents submitted, in summary—

32
33
The layout of the proposal, in its streets, open spaces and buildings,
established a new character, one unrelated to the surrounding area.
The Council’s traffic expert, Mr O’Brien, does not support this requirement.
The strategic framework plan, we were told, has erroneously not included the identification of the
subject land as a large or strategic development site, and this will be corrected during further
processing of C161.
VCAT Reference No. P333/2012
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
The height of many buildings was excessive and would dominate their
surroundings.

The slightly oblique alignment of Buildings A and B to Orrong Road
and the dominant character of the garages to the townhouses in
Building S were discordant elements.
89
We have concluded that both the general and specific design aspects of the
proposal are acceptable.
90
Earlier in these reasons, we concluded that it is acceptable that the proposal
not emulate either the layout or scale of buildings in the broader
surrounding area. We now consider the specific merits of the proposal.
91
The built form comprises eleven square-floorplate buildings with 21 m long
sides between four and twelve storeys. Several of these buildings are joined
by five rectangular-floorplate infill buildings of four or five storeys. At the
south-eastern end of the land is a cluster of three rows of terraced dwellings.
The most easterly of these contains four two-storey dwellings and the two
others each contain seven three-storey dwellings.
92
The overall pattern of taller buildings is as follows. They are lower
adjoining Orrong Road (four storeys to the north and six storeys adjoining
to the south), then rise to nine and twelve storeys on either side of the
station forecourt, and then descend to nine storeys adjoining the eastern
terraced dwellings. The three taller buildings along Toorak Park are midheight (ie seven storeys) with four-storey infills.
93
The Council’s UDF is based on a grid-type street layout that is, according
to Mr Czarny, intended to reflect the traditional, orthogonal street pattern of
surrounding land, with taller buildings to eight storeys within four to fivestorey podiums. The layout involves cars travelling on surface roads to the
furthest south-east corner of the site. In contrast, Mr McGauran extolled the
layout as an embodiment of the principles of transport-oriented
development,34 with higher-density housing focussed on a public transport
node, limitation of car movements within the site, separation of car and
pedestrian movements and pathways oriented toward the railway station
and community services.
94
The transport-oriented development principles have much to commend in
strategic terms of urban consolidation and a re-orientation of transport
preferences away from cars and towards public transport. We find that the
proposal demonstrates, although on a smaller scale than most overseas
examples, the way that these principles should be applied.
34
In Wikipedia , a transit-oriented development is defined as a mixed-use residential or commercial
area designed to maximize access to public transport, and often incorporates features to encourage
transit ridership. A TOD neighborhood typically has a center (sic) with a transit station or stop
(train station, metro station, tram stop, or bus stop), surrounded by relatively high-density
development with progressively lower-density development spreading outward from the center
(our emphasis).
VCAT Reference No. P333/2012
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95
The visual effect of the heights and clustering of proposed buildings, as
viewed from external points, is of development that is more urban than
suburban in character. This would also be the external visual effect of
development that accorded with either the Council’s UDF or C153,
notwithstanding that they both would have some lower building heights.
96
The principal visual impact of the proposal will be from across Orrong
Romanis Reserve, from Orrong Road (north and south), from the southwestern corner of Toorak Park and from Beatty Avenue. In other views the
built form tends to be either partially screened by a combination of trees or
nearer buildings or substantially diminished by distance.
97
We find that the views across parkland are acceptable. The buildings will
introduce a new and more visible form but would otherwise not be
overbearing or otherwise unreasonable. Given the status of the subject land
as a large redevelopment site for higher scale development, it is appropriate
that the presence of buildings near Orrong Road should be highlighted.
98
The greatest visual impact will be as seen from the north-eastern side of
Beatty Avenue from where the tallest building (Building F) will stand about
40 metres above, and about 60 metres away, from an observer. Again,
while we acknowledge that the proposal’s visual presence will be much
greater than the existing building (which, even at five storeys height, is well
set back), we find that this is acceptable when balanced against the
proposal’s major contribution to State policies and the extent of its
compliance with local policies.
99
The Council and residents were concerned about the lack of alignment of
Buildings A and B with Orrong Road. Those buildings are about six
degrees away from Orrong Road’s alignment.
100 We could find no report, including in the permit application material, that
explained the reason for these buildings’ alignment. The Applicants’
planners, in their review of the amended design, simply recommended
without further explanation ‘these buildings should be aligned parallel to
Orrong Road’.35 The Council submitted that the misalignment was at odds
with the orientation of local streets and thereby out of character.
101 In Mr McGauran’s opinion, the misalignment reflected the progressive
setback of the terrace dwellings to the north of the subject land. However,
we doubt that any casual observer would be aware of this feature.
102 On the other hand, because the proposal will make a significant and unique
impact on its locality, the slightly different alignment of Buildings A and B,
to the extent that it may be noticeable to the passerby, would give a slight
emphasis to that uniqueness. If a development is designed to reflect the
characteristics of its neighbours, the misalignment would be idiosyncratic
and unjustified. But that is not the case here.
35
Urbis consultants, letter to the Council dated 20 December 2011.
VCAT Reference No. P333/2012
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103 The Council also submitted that the Orrong Road setback, varying between
4 m and 8.3 m and with the basement level extending under much of this, is
unsuitable for planting of any useful scale. The Council’s UDF provides for
a 6 m setback along Orrong Road, which is equivalent to the average of the
proposal’s setback. The proposed hedging along Orrong Road will provide
a useful contrast. Given the presence nearby of three immature Plane trees
in the footpath, we would neither expect residents to plant any substantial
vegetation nor place any great value on it, if they did, even with a constant
6 m frontage setback.
104 Mr Czarny was critical of the built form response of sheer taller buildings
with infill buildings between. He preferred a tower-above-podium form for
the taller buildings. Mr Czarny’s draft UDF had wide, four to five-storey
podiums with towers standing another two to five storeys above these. The
tower-over-podium form is cited in Government guidelines as a preferred
form.36 However, the proposal has been designed to establish its own
character and this is based on a concept of sheer taller buildings and banks
of infill building. The design is consistent within these principles and,
given the land’s other attributes, we find that the context can support the
proposed approach.
105 Leaving this issue aside, a tower-over-podium form would create a
particular design difficulty. For podiums of the dimensions illustrated in the
Council’s UDF, there would be excessive building depths at some points
within the towers’ footprints and behind the podiums. Devices such as light
courts would be required and this would be a compromised solution.
106 In Mr O’Dwyer’s opinion, there is an absence of adequate views between
the taller buildings. This again reflects an alternative approach based on
towers-in-the-park and, in our view, reflects more a stylistic urban-form
preference than an objective urban-form assessment. While some may
prefer the aesthetic of towers-in-the-park (or towers-over-podiums), we find
the urban form of this proposal acceptable.
107 The four two-storey townhouses in Building S, which abut Osment Street,
have front doors and double garages facing onto Osment Street. These
dwellings will also have a small garden to the north and, through it,
secondary access to the Osment triangle. These dwellings’ façades to
36
Guidelines for Higher Density Residential Development (Department of Sustainability and
Environment, 2005). This document includes (our emphasis added)—
‘DESIGN SUGGESTION 2.2.2: SET BACK UPPER LEVELS OF TALL BUILDINGS OR USE A
PODIUM AND TOWER FORM TO HELP CREATE A PEDESTRIAN SCALE AT STREET LEVEL.
Tower buildings or elements should be set back from the street on a podium to maintain a pedestrian
related scale and to mitigate unwanted wind effects. Stepping taller elements down to the street, or
neighbouring buildings, or wrapping them in 'smaller buildings' can also mediate differences in scale
between buildings. Setbacks allow greater light access to the street, broader views of the sky and reduce
the 'canyon' effect for pedestrians at street level. A careful analysis of street width, levels and view lines is
required to determine ideal setbacks. For example, a setback of upper levels can render these levels
invisible from the street. Taller buildings without a podium level create a dramatic urban form and
this may be appropriate on some sites where the local context can support this approach. ’
VCAT Reference No. P333/2012
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Osment Street have been cleverly designed to avoid the traditional
appearance of garage doors. Mr Lovell stated that the northern side of
Osment Street, having previously been a municipal depot, would always
have had a different and non-residential character to the southern side.
Some difference between northern and southern side therefore has some
historical relevance.
108 The Council and the residents to the east in Osment Street were opposed to
the lack of setback and orientation of garages. They submitted that the four
dwellings should be set back to provide planting on the subject land and
that the garages should be reoriented to gain access from the Osment
triangle.
109 We have already stated that the two-storey scale of these dwellings is
appropriate to their immediate context. Their front doors will ‘address’
Osment Street and their character, being more that of mews housing, would
make an appropriate transition to the proposal’s more urban form to the
north-west. They appropriately fit between the higher density to the northwest and the existing housing to their south.
110 The Council and the residents submitted that the pedestrian path around the
northern perimeter of the subject land was unresolved and had an
unpleasant character. This path separates the land from the dwellings
fronting Orrong Road and Tillotson Terrace (to the north) and from the
railway reserve and connects to Osment Street (to the east). It provides
pedestrian access from Orrong Road, Tillotson Terrace and Osment Street
to the railway footbridge. It is narrow, poorly lit, has a number of blind
corners end and is mostly screened on at least one side by opaque fencing.
There was wide acceptance that it is, or at least appears, unsafe.
111 The proposal does not incorporate or modify this path, other than to adjust
its ramps down to the station footbridge’s level, this being necessary to
accommodate the station forecourt’s direct connection to the station
footbridge. The Council has not supported any proposal to incorporate the
pathway into the proposal or to otherwise abandon it.
112 If this proposal proceeds, the usefulness of the northern path will decline
greatly, as more attractive public routes will be provided from Orrong Road
and Osment Street to the station, leaving only the benefit of the connection
between Tillotson Terrace and the station.
113 Mr McGauran supported, and we agree, that if this path or any part of it
remains, buildings on the subject land should be arranged to provide it with
greater oversight. This will also require the height of some boundary fences
to be reduced. As the proposal indicates extensive use of high fencing
along this path, we will require by permit condition that some sections of
this be appropriately reduced in height, for the same purpose. Mr McGauran
also recommended that a secure access be provided between this path and
the village greens that abut it. However, as this would require the
VCAT Reference No. P333/2012
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agreement of VicTrack (on whose land the relevant sections of pathway are
situated), we leave this as an obvious improvement that would have to be
negotiated later between the relevant parties.
114 We hope that if this proposal proceeds, the Council can obtain a legally
guaranteed public right of way for pedestrians to access the station along
better alternative routes within the land. We then hope that the Council
would be prepared to abandon much of this unattractive and potentiallyunsafe path.
Architecture and building materials
115 The Council and residents submitted that the proposed architecture and
materials (the apartment buildings’ shape, detailing and finishes) are
unsuitable in their suburban residential context, having the character of an
office park rather than blocks of apartments. There were no objections to
the architecture of the townhouses.
116 We have concluded that all of these aspects of the proposal are acceptable.
117 The complex of buildings is based on an arrangement dominated by eleven
simple, square (about 21 metres to a side), effectively flat-roofed taller
buildings that vary in height from seven to twelve storeys. In some cases,
lower blocks of apartments of four to six storeys close the gaps between the
taller buildings. There are also, of course, the eighteen two and three-storey
townhouses at the eastern end of the site. The apartments in both the taller
buildings and infill blocks are to have windows and solid panels finished to
a sheer surface. Glass-faced balconies are to be set back from the sheer
surface, rather than projecting beyond it.
118 The proposed architecture of the taller buildings and infill blocks use three
alternative but related patterns based on a rectangular metal grid with
different infill material, and three related palettes of materials and colours:
light metal, timber and white. The complex of buildings is organised into
three groups, with each group using one palette of materials and colours
and, within that palette, each building using the three available patterns on
its different elevations. The effect, as Mr Denton and Mr McGauran
explained, is intended to achieve an overall coherence and, within that
coherence, a subtle but consistent variety. The application plans
demonstrate how these three palettes of materials and three patterns within
each are to be applied across all elevations of all buildings.
119 The Council, Mr O’Dwyer, Mr Czarny and many residents objected to a
number of aspects of the architecture and building form. They submitted the
buildings look more like office blocks than recognisable high-rise
residential apartments. They also submitted the architecture is bland and
bears no relationship to its context (ie the buildings would be equally placed
anywhere or are better suited to other places including, for example, an
office park or Dubai).
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120 Mr Czarny considered the uniformity of the apartment buildings would
create a visual monotony and sought ‘a variety of complementary forms
including capping elements, level setbacks, textural effects and
modulation’, though he did not object to their contemporary style and the
use of simple geometric forms. Mr O’Dwyer illustrated his points by
referring us to two Harry Seidler-designed, free-standing towers of
apartments in Sydney,37 together with the ‘iconic towers of Tokyo’s
Omotesando dore district’. Mr Morris referred us to the more varied
architectural expression of the approved (not yet constructed) apartment
complex on the Honeywell site in Victoria Street, Richmond, with its
strongly horizontal patterns of balconies, with the three buildings within
this complex being differentiated by variations within this pattern of
balconies.
121 Mr McGauran praised the proposed architecture as being ‘refined,
understated and timeless’ and concluded that it ‘adopts the typologies and
scales already found in the immediate neighbourhood …’.
122 Having reviewed the architectural details of the proposal, we accept the first
part of Mr McGauran’s statement but the second part can only be accepted
very broadly. It appears to refer to two taller apartment buildings of earlier
date and markedly different style in Sydney Street or other, more modern
but lower height apartments elsewhere to the west of Orrong Road. The
differences between these examples and this proposal appear to us to be as
great as, or greater than, their similarities. Nevertheless, accepting the first
point, the question still remains whether it is appropriate to establish a
complex of buildings of such ‘refined, understated and timeless character’
in this neighbourhood?
123 While the Applicants could have adopted many alternative architectural
styles for this proposal and many of these might possibly be more
acceptable to the community and the Council’s experts, we must deal with
the one before us.
124 Firstly, we consider it unrealistic to expect apartments of any reasonable
scale to reflect the materials and architectural characteristics of late
nineteenth and early twentieth century housing, except in the most oblique
manner.
125 Any development as extensive as allowed over such a large site, even if
limited to the five storeys that the Council prefers, could not feasibly be
expected to reflect the architectural characteristics of the nearby residential
heritage areas. The word complement, even adopting Mr Morris’ preferred
alternative, is equally unhelpful (as we have already stated). Clearly, the
Council might like to interpret this policy as requiring new development to
37
The Blues Point Tower at McMahons Point (26 storeys, completed in 1961) and Horizon
Apartments in Darlinghurst (43 storeys, completed in 1998), Sydney, both isolated from any other
high-rise apartments and both controversial in their time.
VCAT Reference No. P333/2012
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be in some undefined way not very different from the buildings in the
broader surrounding area.
126 However, in terms of architectural style and detail, this requirement again
contradicts any reasonable form of development that might occur, even if
again limited to five storeys, over such a large site. For example, the
question of whether anything is an improvement is always debatable,
depending on one’s initial premises. It is also debatable whether a particular
quality of an object is better emphasised by contrasting it with, or imitating
it by, a nearby object.
127 The most that might be hoped is that new apartments should reflect any
stylistic conventions for apartment design that either can be found nearby or
are widely recognisable because of their historic familiarity.
128 Secondly, the experts’ and residents’ references to a, presumably objective,
architectural style that identifies apartment buildings seem to be referring to
historic examples that, in their turn were originally often novel and
controversial. We do not see anything immutable about architectural styles
or any reason why they should not be allowed to evolve. New building
technologies develop and these often support new stylistic developments.
Architectural styles that were, in their day, innovative become overly and
insensitively copied and inevitably new styles emerge. We have examples
of architectural change over the last 60 years that amply illustrate this
process.38
129 In terms of the development of architecture and apartment buildings, we
now have numerous examples of apartment architecture that more closely
reflects the past architecture of offices. These include Eureka Tower,
Southbank, Aerial (almost complete) at Camberwell Junction, the
Camberwell Railway Station apartments (not yet commenced), the Yve
Apartments, St Kilda Road and the six-storey apartments at the corner of
Toorak and Camberwell Roads, Hartwell.
130 We accept that the proposed architecture of the apartment buildings is
innovative in this setting and will provide a substantial contrast with the
nearby heritage areas. We consider that such a contrast is acceptable. We
also accept Mr McGauran’s opinion that the use of the proposed,
reasonably fine-grain, pattern of the elevations and the balconies expressed
as inset voids (the glass balustrades would help emphasis this) will clearly
differentiate the towers from conventional office blocks.
131 We have been impressed by the demonstrated level and quality of
architectural detailing that has been applied to all elevations, with its
38
For an alternative example, we have the constant and much more rapid process of stylistic
innovation, obsolescence and further innovation in automobiles as each stylistic convention dates
and technologies develop.
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section/perspective of an external wall, showing the detailing of floor slabs,
cladding and windows.39
132 We therefore conclude that, notwithstanding their innovative architecture,
the form and style of the proposed apartments is acceptable. However,
given the importance we place on this quality, we will include a condition
that requires the submission of a ‘statement of design intent’ that confirms
and elaborates these and other important details of the proposals’ finishes
and detailing. Our intention is that the Applicants are to be effectively
bound to provide the same in the finished development. This will, of
course, require a commensurate level of care by the Council in considering
approval of the statement.
Heritage
133 The Council and residents submitted that the proposal would have an
unreasonable detrimental impact on the values of the two nearby heritage
places. We have concluded that, while the proposal would cause a
substantial change to the setting of these heritage places, it would not affect
their heritage values.
134 The site adjoins or is close to two heritage places, HO130 (the extensive
Armadale Precinct) to the northeast, and HO371 (the New Street Precinct)
to the south and south-east. Both heritage places largely consist of small,
late nineteenth and early twentieth century dwellings, mostly single-storey,
and mostly on small lots. HO130 includes the station, which is largely set
below grade in a cutting, and the Beatty Avenue centre adjoining the
station, a small single-sided, largely single and two-storey, centre along the
north-eastern side of that street.
135 The proposal does not involve any buildings, works or demolition within a
heritage overlay. No permit is therefore required under the heritage overlay.
136 The Council submitted the proposal, because of its highly contrasting scale,
contravened the local heritage policy, which applies to both land within a
heritage overlay and to land ‘immediately abutting the (heritage) place’.
The relevant objective of this policy is—
To ensure that any additions, alterations and replacement buildings are
sympathetic to the heritage area and/or surrounds.40
137 The related policy is—
The use and development of heritage sites and adjoining land be
compatible with and not adversely affect the significance of cultural
heritage sites.41
39
40
See Denton Corker Marshall Architects, Design Report Volume 1 (23 November 2011) at p 60-62.
These façade design details did not include the façade perspectives that were relied upon by Mr
McGauran in oral evidence. Those perspectives were subsequently filed at our direction and shown
on undated extracts bearing page nos 42-44.
The scheme cl 22.04.
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138 Several residents similarly held the view that, because of its highly
contrasting scale, the proposed development would substantially diminish
the heritage values of these two heritage places.
139 There are two aspects to the policy. One seeks to conserve the existing
values of a heritage place. The second seeks to maintain a compatible
context or setting for a heritage place. The first relates to the purposes of
the heritage overlay. The second, except perhaps for exceptional
circumstances,42 does not relate to the purposes of the heritage overlay43
and therefore must be treated as being related to the protection of a
particular quality of neighbourhood character.
140 The statement of significance for the New Street Precinct identifies its
aesthetic, architectural and historic significance. The critical aspects of this
significance is, in summary, the precinct’s largely intact representation of a
‘late nineteenth and early twentieth century’ suburban residential area.
Although the Armadale Precinct’s statement of significance was drafted in
2007 and uses a more archaic format, we feel that we can usefully
paraphrase it in a similar vein but with the additional statement that it
includes an important representation of an Edwardian station building,
together with an associated local shopping centre of the same era.44
141 Mr Lovell’s opinion was, in its essence, that the proposed change to the
nearby context of the two heritage places would not affect their ability to
reflect their particular heritage values because these values are entirely
contained within the precinct boundaries and are unrelated to their wider
context. We accept Mr Lovell’s opinion.
142 From one point of view and in respect to these two heritage precincts,
increasing the contrast between them and their surroundings would actually
highlight more clearly their heritage values by increasing the difference
between the built form representing these values and their surroundings.
This is an attribute of the two precincts that is entirely unrelated to their
setting.
143 We distinguish this case from the example referred to by Mr Morris that
involved a proposed multi-storey mixed-use development at 312-332 St
Kilda Road, opposite the Shrine. That site was not included in any heritage
41
42
43
44
The scheme cl 22.04.
As Mr Lovell agreed, there may be exceptional situations where development outside a heritage
overlay will affect the values of that heritage place. The exceptional case referred to was a
proposed multi-storey, mixed-use development at 312-332 St Kilda Road, directly opposite the
Shrine’s eternal flame.
The most relevant of the purposes of clause 43.01 are ‘to conserve and enhance heritage places of
natural or cultural significance’, ‘to conserve and enhance those elements which contribute to the
significance of heritage places’ and ‘to ensure that development does not adversely affect the
significance of heritage places.’
We suspect that if this statement of significance were to be reviewed, then in addition to inclusion
in HO130, the station could also be defined in a separate heritage place along with the similar
stations at Hawksburn and Armadale, which the Prahran Conservation Study (Nigel Lewis and
Associates, 1983) identified as forming ‘an important group of Edwardian station buildings’.
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overlay while the Shrine and its surrounding land were included. The panel
considering that development concluded that the special values of the
Shrine included its identification as having the qualities of a sacred place
and that, in part, these qualities importantly included its elevated position
against the skyline, as seen from most points viewpoints. The panel found,
and the Minister accepted, that the development would cause substantial
detriment to this particular attribute of the Shrine and should not be allowed
to proceed.
Access to Orrong Road
144 The boulevard to the two basement car parks and to the station drop off and
pick up point at the plaza connects to Orrong Road at the south end of the
Orrong Road frontage, diagonally opposite the intersection with Sydney
Street (the southern access).
145 The proposal included—

Traffic signals at the southern access for the intersection of the
boulevard, Orrong Road and Sydney Street. It is proposed to use a
five-phase signal cycle to allow all movements to and from every leg
of the intersection.

One entry lane plus two exit lanes at the southern access plus footpaths
on both the north and south sides.

Removing the existing signalised pedestrian crossing located opposite
the path to the station along the northern boundary of the land.
146 The southern access point and the signalised intersection were further
developed in a concept plan prepared by Mr Kiriakidis and relied upon by
the Applicants and identified as Option A2 dated 5 April 2012.45
147 Orrong Road is in a Road Zone Category 1 under the scheme and is a bus
priority route. VicRoads is the road management authority for Orrong
Road. Both Malvern Road (to the north) and High Street (to the south) are
tram priority routes. The Council is the road management authority for
Sydney Street.
148 A permit is required under the scheme to establish the new southern
access.46 No permit is required under the scheme to carry out works for the
signalised intersection. However, if we consider those works necessary as a
result of the grant of a permit for the proposal, we may include a condition
requiring them to be provided by the Applicants or paid for wholly by the
Applicants.47
45
46
47
A dimensioned larger scale drawing of the southern access and boulevard, consistent with that
option, prepared by Denton Corker Marshall architects and dated 27 May 2012 was tendered at the
hearing as Exhibit A1. It shows 2.0 m and 5.2 m wide footpaths on the south and north sides
(respectively), two exit lanes of 3.2 m and 3.3 m width and one entry lane of 4.2 m width.
The scheme cl 52.29 (access to RDZ1) and cl 34.05-4 (works in B5Z).
Planning and Environment Act 1987 s 62(5)(i) & (ii).
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149 VicRoads does not oppose the southern access or a signalised intersection,
but opposes Option A2. It supports a different option prepared by the
Applicants, known as Option A4. Option A4 is similar to Option A2 but
differs mainly in that it prevents right hand turns into and out of Sydney
Street. It could minimise through traffic delays consistent with its bus
priority route status.
150 The Council opposes both the southern access and a signalised intersection
(ie Options A2 or A4) and relies on the opinion of Mr O’Brien and a traffic
report it commissioned as part of its preparation of the UDF.48 Some
residents, including those located west of Orrong Road, are opposed to
Option A4. The Applicants rely on the opinions of Mr Kiriakidis and Mr
Hunt in their support of the southern access and Option A2.
151 Our task is therefore to make a finding about whether the southern access is
a reasonable outcome having regard to the relevant decision guidelines,
whether signals (or other works) are necessary and should be provided by
the Applicants, and (if so) whether one of the different options could be
supported on planning grounds. We remain conscious of the fact that
regardless of whether we find one option appears to have more merit than
any other and should be provided as a condition of permit, no works could
be carried out without VicRoads’ consent.
152 Mr O’Brien and the Council support a northern access and submit—

It is an existing access and has a satisfactory northbound right turn lane
into the land and is close to the existing pedestrian signals (that enable
satisfactory right hand turn exits).

It is located more mid-block between Malvern Road and High Street.

The southern access is too close to Sydney Street to work without
signalisation.

Signalisation at the southern access, particularly Option A4, is not
warranted on traffic generation grounds and will have adverse local
traffic effects.
153 We are unable to agree with the Council. We prefer the opinions of Mr
Kiriakidis and Mr Hunt to those of Mr O’Brien.
154 The southern access is preferable on planning and urban design grounds. A
northern access requires sharper turns to reach the plaza and is less direct
for station drop offs. It is likely to be less efficient in site layout terms
because of the need for more road space. However, more importantly, it
enables a path on the south side to enjoy a Toorak Park outlook and connect
48
UDF Traffic and Parking Assessment prepared by HDS Australia Pty Ltd, Civil Engineers and
Manager, dated November 2011 (Exhibit R4).
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Toorak Park with the station.49 It also enables buildings to be located
further from, and hence reduce their prominence from, Toorak Park. In
addition, it is closer to existing bus stops. The strength of the Council’s
opposition to a southern access is lessened by its support for a southern
access in the UDF and C153.
155 A southern access enables a new pedestrian crossing that is more
convenient, based on pedestrian traffic surveys, for pedestrians accessing
Toorak Park. It also enables west-bound users of Orrong Romanis Park (eg
students of Armadale Primary School) to use the higher amenity and
potentially safer pedestrian route through the land rather than the existing
path along the north boundary.
156 We are satisfied there would be a need for signals at the southern access.
We agree with Mr O’Brien that the projected traffic generated by the
proposal at the intersection (eg residents and their visitors, maternal health
centre users, café and convenience shop users, and station drop off vehicles)
does not quite reach the level that would normally warrant signalisation
under VicRoads’ guidelines. However, we agree with Mr Kiriakidis and Mr
Hunt that they are justified on safety grounds, given traffic volumes on
Orrong Road and the proximity to Sydney Street.
157 We prefer Option A2 because it maintains existing local access to and from
Sydney Street (and hence minimises any adverse impacts to the local area)
and would result in only minor change to footpath widths and street trees.50
158 We accept Mr Hunt’s opinion, based on his SIDRA analysis, that although
any signals will generate queuing, limiting green time phasing to Sydney
Street to match existing capacity means that average delays of about 27
seconds to through traffic on Orrong Road are in line with existing delays.
Some delays are to be expected given the function and higher status of
Malvern Road and High Street.
159 Option A2 includes a left turn slip lane from Sydney Street to Orrong Road.
None of the traffic experts considers this slip lane needed. We will not
include it in the condition. We will also include a condition requested by
the Director of Public Transport that the Applicants provide shelters at the
nearby bus stops on both sides of Orrong Road.
160 At the hearing, VicRoads submitted that if the Council and the local
community opposed Option A4, VicRoads would be prepared to consider
and support Option A2.
49
50
A more open relationship between the subject land and Toorak Park (including the removal of
existing cyclone wire fencing) is proposed under the Council’s Public Realm Strategy, October
2010 (Exhibit R11).
It enables slightly wider vehicle lanes in Orrong Road to the north of the intersection and this
facilitates safer bicycle use.
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Boulevard and plaza
161 The Council and residents submitted that design of the boulevard and its
associated plaza and open spaces, together with the adjoining tall buildings
and associated activities, would create an unpleasant, overshadowed and
overborne environment, not conducive to the intended social interaction and
enjoyment. Mr Canavan, supported by various expert witnesses, argued
that this aspect of the design was a sound and successful response to the
site’s levels and priorities for station access and would be socially
successful.
162 We find that the design of the boulevard and associated buildings, spaces
and activities, is acceptable.
163 The boulevard and its associated buildings form a complex of spaces and
activities. The boulevard extends eastwards along the southern side of the
land past Building B (six storeys) and Building C (seven storeys) before
turning northwards through about 45 degrees to enter the plaza. The plaza is
a space of about 38 metres square surrounded by Building D (nine storeys),
Building F (twelve storeys), Building G (nine storeys) and Building L (nine
storeys). Buildings D and F are joined on their distant edges by a lower
Building E (five storeys). Buildings D, F and G are square-on to the plaza,
while Building L is set on edge. A twelve metre wide opening between
Buildings F and G, on the northern side of the plaza, then gives access to
the corner of a triangular space (the station forecourt) that in turn gives
direct access to the station footbridge.
164 The boulevard descends along its length by about five metres to the plaza,
with a retaining wall and footpath along its northern side, a sloping
vegetated or grassy bank to the other. The plaza and station forecourt are at
the same level as the station footbridge. The plaza contains, around a
central clump of palm trees, a turnaround for cars dropping off rail
passengers and is fronted by a convenience shop, a maternal health centre, a
multi-purpose room and a café. There are also two sets of open stairs and a
lift giving access to open spaces one level above the plaza and to Toorak
Park (to the south and south-east) and to the open spaces around Buildings
B and C (to the west).
165 There was wide acceptance that placing the station forecourt at the same
level as the station footbridge was desirable, though Mr Czarny was critical
of the lack of at-grade connectivity between the plaza and Toorak Park.
166 Before the plaza is reached, the boulevard provides entry to basement
parking areas on either side and, along its south-eastern edge, is a row of
doors to various service areas.
167 More specific criticisms by Mr Morris, Mr Czarny and others of the
boulevard and its associated spaces included—
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
The plaza will be ‘awkward at best’, excessively shaded, dominated
by cars, lacking separation of cars and pedestrians and will fail its
(presumed) role as a community hub.

The boulevard will, as it descends, create a schism through the
development and, as it approaches the plaza, will be dominated by the
unattractive retaining walls and service doors.

The path on either side will be too steep or too narrow and will
provide an unattractive environment for pedestrians walking to or
from the station or elsewhere.
168 We accept that, even at commuter peak hours, volumes of external
pedestrians and vehicles will be relatively modest.51 Even after allowing
for additional foot traffic from residents on the site, we conclude that it
would be quite appropriate that this area is designed and managed as a
shared space.
169 We inspected a number of urban spaces nominated by Mr McGauran, in
particular the small plaza in the QV building in the city, which is equivalent
to the plaza in its overall dimensions, though surrounded by somewhat
taller buildings.
170 From this inspection and from the evidence, we accept that the plaza will
have an urban, rather than suburban character, but given our other
conclusions about the acceptability of the urban form that is proposed here,
we find that the plaza will be an acceptable urban space.
171 It will surrounded by edges with very different characters, so that its nature
will be visually dynamic and will have some pedestrian movements at
road/plaza level and some pedestrians passing around it and overlooking it
from the level immediately above. The at-grade relationship between the
plaza, the station forecourt and the railway footbridge is beneficial and
consistent with the overall design principle, as espoused by Mr McGauran
in particular, to support pedestrian movement through the site and to the
station.
172 We find no objections to the sections of retaining wall and the section of
wall devoted to service areas. These are only short sections of the
boulevard’s edges. The edges include grassed slopes, footpaths, views of or
between taller residential buildings, views of and access to open space and a
number of community services.
173 The scale of buildings surrounding the plaza is acceptable within the
proposal’s intended character type. The 12 m wide gap between Buildings F
51
From Mr Kiriakides’ report (figure 2.19), the morning peak hour pedestrian volume attracted to
the new entry would be at most about 140, assuming all recorded pedestrians were approaching the
station, while drop-off-passenger car traffic would involve an optimistic 90 pass-throughs (p 58).
These volumes compare to an existing 20 pass-bys on Orrong Road and Beatty Avenue together,
ie about 2.4 pedestrians/minute and 1.5 vehicle pass-throughs/minute.
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and G is also acceptable. We agree with Mr McGauran that the gap will
appear wider because the closing edges of these two buildings consist of
open balconies. The visual gap will therefore be more like 15 m with the
comb-teeth of balconies up its edges. The relative narrowness of this gap
would, in our view, emphasis the separation of function and the visual
openness of the plaza and the station forecourt.
174 We have discussed specific amenity aspects of the plaza (shadowing and
wind effects in particular) later in these reasons.
175 Finally, there is one related issue. The Applicants propose that, following
construction, the boulevard (including the shared zone for station drop offs
and pick ups at its eastern end) be transferred to the Council for its future
care and maintenance as a public road. The road would be vested on the
registration of the relevant stage of the subdivision of the land. The Council
is opposed to such vesting and prefers the road to remain common property.
We will not include any condition so that this issue can be resolved at a
later date as part of the subdivision process.
Open space and landscaping
176 The Council and residents submitted the landscaping response was
unacceptable. They argued there was insufficient open space, too much
reliance on adjoining parks, too much open space was located on structure,
the main open space was excessively in shadow, the root systems of some
adjoining trees on Toorak Park would be adversely affected, and there were
lost opportunities for new paths.52
177 The Applicants rely on a landscaping concept plan.53 Mr Wyatt reviewed
and supports that plan. The Applicants also rely on the evidence of Mr
Galbraith, who reviewed the aboriculture reports, especially in relation to
the pepper trees at Toorak Park.
178 Overall, we find the landscaping response is consistent with State and local
policy and is acceptable
179 Local policy recognises that Stonnington and Armadale are relatively
undersupplied with public open space. However, the subject has the
particular benefit of adjoining one of the best served areas for public open
space in Toorak Park, Victory Square and Orrong Romanis Park, totalling
about 8 ha.
180 There is no requirement in the scheme to make a public open space
contribution in land or money when constructing dwellings. The scheme
recognises that a contribution must be made only when the land is
subdivided and the dwellings are sold.54 A 5% site value contribution will
52
53
54
Later in these reasons we consider the separate issue of private open space for residents.
Tract Consultants, Landscape Concept Plan (amended and dated 10 April 2012).
The scheme cll 22.01 & 52.01; Subdivision Act 1988 s 18
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be then made and the Council is likely to use the funds for open space
improvements elsewhere.55
181 The proposal will have an important amenity benefit from its location near
existing public open space. In that sense, it will borrow that amenity. As the
Council’s policy on open space recognises, urban consolidation blurs the
boundaries between public and private open spaces and developers need to
look to augment or enhance existing open spaces in their projects.56
182 A variety of different open spaces is proposed. Each is communal open
space and available to all residents. Most of the areas will also be publicly
available and this will be a real benefit to surrounding residents.
183 The main open space is called the ‘central green’ and is generally located
between the buildings facing Toorak Park and those facing the railway.
From the north at the plaza, users must take stairs or an external lift to reach
the central green. We do not agree that the disconnect in levels will
adversely affect the central green. The plaza is not part of the proposal’s
open space in a recreation sense. As previously stated, it is shared with slow
moving vehicles and bicycles. The central green is about 110 m long
(extending to the Osment Terraces) and varies in width between about 18 m
and 38 m.
184 The central green is established on structure (the southern basement). It is a
space of meaningful size (about the size of the former city square on the
Collins Street and Swanston Street corner) and will be surfaced with lawn
and paths and planted with mainly perimeter deciduous trees that will grow
to about 10 m mature height. We accept Mr Wyatt’s opinion that current
practices, including providing for at least one metre deep soil and irrigation,
can enable a quality landscaping result. We share Mr Milner’s doubts it
could be used for informal ball sports, but it will be a pleasant place to talk
or read a book or pass through or look down upon.
185 We agree with Mr Czarny and Mr O’Dwyer that the central green will be
partly compromised by building shadow, given its north-west to south-east
orientation. At the winter solstice, sun enters the space only after 2 pm. At
the equinox, significant sun enters the space from midday. As other spaces
on the subject land are not in shadow during the morning, the shadowing is
acceptable.
186 The other criticism of the central green is that it terminates at the cardominated Osment triangle. This criticism is exaggerated. The triangle
provides vehicle access to only fourteen townhouses and a drop off area, so
vehicle generation will be low. It will function as a pedestrian shared space.
Mr O’Dwyer praised the community focus of the shared access and parking
55
56
Under cl 22.10 of the scheme, it is policy that any amount above 5% can be required only if an
approved development contributions plan so provides. There is no approved plan affecting the
subject land.
Stonnington City Council, Public Realm Strategy (October 2010) p 11.
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area in the middle of the Tillotson Terrace complex, where more dwellings
are located. If the shared space in Tillotson Terrace works, we no see reason
why the Osment triangle cannot work just as well and why it cannot draw
people into the central green.
187 In addition, in terms of connectivity, a central green user has the alternative
of entering or departing via the gap between Buildings R and P via Osment
Street and the proposed path along the north edge of Victory Square.
188 There are a number of other smaller spaces. All but one adjoin abutting
public space and therefore augment or enhance the existing public realm.
They include the station forecourt and the west and east village greens. All
these other spaces have excellent solar access. Some of the smaller spaces
have a single protruding basement vent. The vent can be transformed into a
landscape feature and will not necessarily detract from their appearance or
use.
189 The open space and landscaping response also provides enhanced public
access through the subject land from the south, east and west. In addition to
paths along both sides of the boulevard between Orrong Road and the
station and on to Beatty Avenue, there is a Toorak Park ‘extension’ of about
110 m by 10 m adjoining and augmenting the Park’s north-east corner. It
contains a path connecting the boulevard to Victory Square. While this is of
benefit, it can be better and we will require that path to be extended along
the south edge of the Building R terraces so that the path extends to Osment
Street.
190 As previously mentioned, there is further public access from Osment Street
through the central green to the plaza and station and Beatty Avenue. The
existing perimeter paths outside the land (ie the north path and the railway
reserve path) will be maintained. The end result will be a complete
perimeter path system, as sought by some residents.
Environmental sustainable design
191 A number of submissions raised issues about the proposal’s ESD
effectiveness. Mr O’Dwyer, while complementing the proposal’s
sustainability in strategic terms, was critical of such aspects as the
dwellings’ orientation, which he considered ‘does not respond well to the
changing solar and subsequent thermal load demands of the different
orientations’.
192 Mr Canavan submitted that the Applicants will accept a requirement that
the proposal achieve a minimum 4-star Green Star rating, and that it aspires
to achieve a 5-star rating.
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193 We adopt the conclusion of the Tribunal in Golden Ridge Investments Pty
Ltd v Whitehorse City Council,57 that a permit should not be refused ‘… if
the shortcomings can be dealt with by a condition or will be addressed in
the building regulation system’.58
194 We consider that a permit condition would be able to achieve an acceptable
ESD. We therefore find that the proposal’s ESD performance will be
acceptable.
Amenity impacts
195 In this section of the reasons, we deal with amenity issues in dispute.
Internal amenity
196 The Council relied on the opinions of its experts in submitting that the
proposal would in many respects achieve poor internal amenity. We have
concluded that the internal amenity, taken as a whole, is acceptable.
197 A number of aspects of internal amenity – noise, shading of open spaces,
convenience of residents’ parking, availability of loading bays for residents
– are discussed elsewhere in these reasons. In this section we have
considered solar access for dwellings, privacy, provision of secluded private
open space and internal circulation.
198 The large majority of dwellings have some habitable room or rooms able to
receive sunlight throughout the year, with the majority being on a building
corner. The number that cannot is acceptably small. All dwellings appear to
have access to balconies or private gardens of at least 8 sq m. Mr Canavan
submitted that only six dwellings have an outlook from a secondary
bedroom to a building wall.
199 We agree with Mr McGauran that all lift lobbies should have a minimum
width of 2.1 m (the basement lobbies to lifts to Buildings A and B appear to
be much less than this) and corridors a minimum width of 1.5 m, with
localised entrance-indentations of 1.8 m and this can be addressed by permit
conditions.
Impact on Toorak Park and Victory Square
200 A variety of criticisms were made of these interfaces. They included a
tendency to borrow amenity than enhance it and an unresolved path
between Toorak Park and the boulevard leading to an uncomfortable change
in level before reaching the plaza. As well, there was the impact of the
south basement on existing pepper trees along Toorak Park boundary, and
lack of path access along the north edge of Victory Square. As well, it was
claimed there is a sense of visual domination or overshadowing of the
reserves.
57
58
[2004] VCAT 1706 at [98]-[103].
[2004] VCAT 1706 at [101].
VCAT Reference No. P333/2012
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201 We disagree with these criticisms.
202 As previously mentioned, the proposal borrows amenity from both reserves.
It is inevitable that development adjoining these reserves will do so. The
existing development does this. It is expected that residents of the dwellings
will be attracted to and use the reserves. This is the same as other residents
in the surrounding area. It is not an unreasonable borrowing because the
reserves are augmented and enhanced by publicly accessible setbacks
incorporating paths along the common boundaries. The Council’s public
realm strategy and master plan proposes to improve pedestrian access
around and through Toorak Park and this is consistent with the proposal.
203 Buildings B, C, L, M, N, O and P adjoin Toorak Park and in general terms
follow the alignment of the existing building. The one to two-storey taller
parts of the seven new buildings will be visible over the existing trees from
southern parts of the reserve, rather like turrets on a wall. There will be
visible gaps between those taller elements. We do not consider this a
significant adverse visual impact.
204 The Applicants’ shadow studies show that the proposal has a shadow
impact on the Toorak Park and Victory Square.
205 For Toorak Park at the equinox, between an additional 0.1% to 0.3%
(including existing vegetation) or an additional -0.1% to 0.2% (excluding
existing vegetation) of the reserve, at its northern edge, is in shadow
between 10 am and 3 pm. At the winter solstice, the same percentages are
between 0.4% to 2.2% and between -0.6% and 0.9%. This is not a
significant impact.
206 For Victory Square, the impact is greater. At the equinox, the increase at the
same times on the same alternative bases, is between 0.8% and 2.1% or
2.7% and 7.6%. At the winter solstice, the increases are between 1% to
3.1% or between 14.8% and 25.2%. The latter figures are high, but the
result is not unreasonable because the impact generally falls into the thickly
vegetated northern edge which is not used for sport and less used for
passive recreation.
207 The path along the south side of the boulevard may be unresolved in the
sense of providing a suitable disability-compliant grade. This can be
resolved by starting the ascending path closer to Orrong Road. It is well
located towards to the top of the boundary mounds and will offer a pleasant
outlook across the park. It connects to the plaza and the station via the
north-western edge of Building L and then via stairs or lift to the lower
plaza at this point.
208 Of the forty trees along the Toorak Park boundary (many of which are
pepper trees), one pepper tree (number 18) adjoining Building L in the Park
Precinct is setback about 1 m from the boundary and about 1 m from the
southern basement. It is most vulnerable to damage. We accept Mr
Galbraith’s opinion, in his reviewing of the aboricultural advice, that the
VCAT Reference No. P333/2012
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other trees will not be significantly adversely affected. Tree 18 should, as
recommended by Mr Galbraith, be irrigated regularly during drier months
after the basement retaining wall is constructed and the setback area to the
basement wall left intact.
209 Finally, as previously stated, we intend to include a condition on the permit
requiring the ground level private open space of Building Q to be setback to
provide a path joining Osment Street and the boulevarde via the Toorak
Park boundary, as recommended by Mr McGauran.
210 The Council requested inclusion of a condition to ensure that future
residents are aware of noise associated with the use of Toorak Park and
Victory Square for competitive sport, including training. This noise
involves sirens, whistles and players’ voices. The condition would require
the owner to enter an agreement under section 173 of the Planning and
Environment Act 1987 to acknowledge the reasonable use of the reserves
and the potential amenity impact on future owners.
211 As the acknowledgement of the potential amenity impact may amount to a
requirement that future owners accept an unreasonable impact on their
amenity, the Council did not pursue this part of the condition.59 Even so, we
do not accept this is a valid condition. An acknowledgement of the
reasonable use is both vague and not reasonably capable of being related to
the implementation of planning policy having regard to the provisions of
the scheme, including the B5Z. The general amenity provision of the B5Z
operates in respect of the impact of the proposed residential use on the
parks and not the reverse.60
Rail noise
212 Neither the Council nor its officers had identified noise levels within
dwellings as a concern. The residents were mainly concerned about
reflected train noise, although there were some references to noise nuisance
for future residents, ground vibration from trains and noise from
construction activities. At the hearing, Mr Morris tested Mr Brown’s report
and opinions in detail and the residents sought to clarify relevant issues.
213 We have made a recommendation as to an appropriate level of average (Leq)
and maximum (Lmax) nighttime noise for bedrooms, drawing on Mr
Brown’s evidence. We conclude that reflected noise will not be significant.
214 It is State policy to encourage internal building layouts for dwellings that
respond to the site context including external noise sources.61 There are
currently no requirements or guidelines in Victoria for assessing or
controlling noise impact from rail corridors on residential development.
59
60
61
Casey City Council v Seventh Day Adventist Church (Victorian Conference) Ltd [2010] VSC 625
at [79]-[83].
The scheme cl 34.05-2.
The scheme cl 15.01-2 Policy Guidelines – Design Guidelines for Higher Density Residential
Development, Department of Sustainability and Environment (2004) Objective 5.2.
VCAT Reference No. P333/2012
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215 The land’s east boundary adjoins the station and lines going to Frankston
and Dandenong/Cranbourne. Some metropolitan services do not stop at the
station. V-Line passenger and freight trains also travel through station en
route to Gippsland and the city. It is not unusual for about five V-Line
freight trains to pass in the early morning. The diesel freight trains
(sometime with two locomotives) are climbing near the station when
travelling away from the city, so they use more power and sound levels are
higher. Metropolitan trains sound a horn when leaving the station. V-Line
trains often sound their horn when passing.
216 The most sensitive noise receptor is bedrooms between 10 pm and 7 am
(the nighttime). The Applicants propose to design to an average noise level
of 35dB(A)Leq in bedrooms during nighttime. This standard is based on
road traffic noise standards. This will mean some bedrooms in the proposal
(eg the bedroom in the third storey facing the rail line in the seven
townhouses in Building Q) would need thick double-glazing. The
specification would vary, depending on whether the bedroom has large or
small glazed areas.
217 Mr Brown’s measured the existing noise at four locations on the subject
land along the rail reserve. One of them (location L3) is at Building Q. Over
a period of a week in mid-2011, average external noise levels were
67dB(A) Leq and maximum external noise levels were 94dB(A)Lmax.
218 Mr Brown stated the proposed standards were higher than those adopted for
the proposed regional rail link project between Werribee and Deer Park. For
that project, average internal noise levels of 40dB(A) and maximum
internal noise levels of 65dB(A) must not be exceeded for bedrooms during
nighttime if external average noise levels exceed 55dB(A) or maximum
noise levels exceed 80dB(A).
219 He also stated the proposed standards would comply with a maximum
internal noise level of 55dB(A) adopted by the Tribunal for bedrooms
during nighttime in two decisions.62 He conceded they were lower than the
maximum internal noise level of 50dB(A) adopted in two other cases.63 He
considered the standard in those two cases was unnecessary because, in
part, the Richmond Icon case involved noise from rail points near
Richmond station that he estimated added about 10 dB(A) to each noise
event.
220 Mr Brown’s evidence did not specifically relate to sleep disturbance
criteria, which is the issue that we are most concerned with. We understand
that sleep disturbance criteria generally takes account of both the level and
frequency of sound peaks and involves researching behavioural outcomes
different to those of noise nuisance per se. However, we agree with the
62
63
Kilker Pty Ltd v Stonnington CC [2004] VCAT 341; Pomeroy Pacific Pty Ltd v Moreland CC No 2
[2011] VCAT 475.
Lazzcorp Brunswick Pty Ltd v Stonnington CC [2002] VCAT 889; Richmond Icon Pty Ltd v Yarra
CC [2012] VCAT 2175.
VCAT Reference No. P333/2012
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Tribunal in the Richmond Icon case that the important amenity to be
protected is
… that during the sleeping period, when background noise levels are
less and noise disturbance is likely to have the greatest impact on
residential amenity.64
221 In Pomeroy Pacific Pty Ltd v Moreland CC No 2,65 the acoustic
consultant’s report stated that the adopted maximum sound level of
55dB(A) was based on ‘event sleep disturbance, which is typically applied
to these evaluations in best practice’, and ‘[i]n general, events not
exceeding 55dB(A) are unlikely to cause awakening’. Mr Brown expressed
the same opinion during cross-examination.
222 We are faced with a variety of Tribunal decisions relating to railway noise
and acceptable levels of internal nighttime noise for bedrooms and
recommendations for the same in a variety of government policies and
guidelines. We summarise them as follows—

Two Tribunal decisions adopting an internal maximum noise level for
bedrooms of 50 dB(A).

Two Tribunal decisions adopting an internal maximum noise level for
bedrooms of 55 dB(A).

The criteria provided by the proposed regional rail link project, of
average internal noise levels of 40 dB(A) and maximum internal noise
levels of 65 dB(A).

The Applicants’ proposal to achieve an average noise level (Leq) of 35
dB(A).
223 As we see the issue, the level of external nighttime noise is relevant only as
one variable that has to be assessed, the important outcome that should be
specified is the acceptable maximum level of sound within bedrooms. The
level of required noise abatement (a matter of the building’s design) reflects
the difference between these. Thus—

The external nighttime noise levels must be properly measured.

The required upper limits of internal noise must be prescribed.

The specification of the building – walls, doors and windows, must be
such as to ensure that an appropriate level of noise abatement is
achieved.
224 We hypothesise that the Tribunal adopted the 50 dB(A) level in the two
cases, referred to above, because certain risks or uncertainties about the
future external noise environment justified a more conservative approach.
64
65
Richmond Icon Pty Ltd v Yarra CC [2012] VCAT 2175 at [94].
[2011] VCAT 475.
VCAT Reference No. P333/2012
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225 In this case, because the external noise environment may change (eg the
possibility of an increase in number of nighttime freight trains), and
because this would increase the average night-time noise level, we propose
to adopt both the Applicants’ average internal (Leq) of 35 dB(A) and the
maximum internal (Lmax) of 55 dB(A) sound levels as the design criteria for
this development.
226 Finally, Mrs Carroll was concerned about possible detriment to Beatty
Avenue dwellings from rail noise reflected eastwards off Buildings F to K.
We accept the expert opinion of Mr Brown that reflected noise, as well as
ground vibration, will be imperceptible. Construction noise is a matter to
be dealt with separately and can be addressed as part of the construction
management plan.
Beatty Avenue views and shadows
227 Mrs Carroll and some other residents east of the railway line were
concerned about loss of western views (including sunsets) and shadows. We
repeat the long-established principle that an existing view is not a right
generally recognised by planning law. Residents east of the line will still
have acceptable access to daylight and sunlight through the day. The
shadow studies show that during the times recognised by planning
standards ie between 10 am and 3 pm at the equinox, there is no shadowing
of the rail lines, let alone Beatty Avenue itself or any of the dwellings on
the east side of that street. The result is the same even at the winter solstice.
Wind
228 The Council submitted that the wind levels in the plaza, as well as a number
of other points, would not meet appropriate comfort levels without further
measures. We find that it is reasonable to address this issue by way of
permit condition requiring further analysis and, if appropriate,
modifications to the design of buildings and landscaping.
229 The Applicants carried out a wind study of an earlier version of the
proposal.66 The study found that, at various points, the appropriate wind
speed would be exceeded for some wind directions. The study used a scale
model of the proposal and included various assumptions of the location and
type of vegetation. Of particular note, wind conditions between Buildings F
and G (ie between the plaza and the station forecourt) would on occasion
exceed walking comfort. The study did include some dramatic and some
not necessarily feasible options to address this outcome.
230 The study indicates that relatively small changes (additional canopies,
modest screens and the choice and location of vegetation) can have
important ameliorative effects on local wind conditions.
66
MEL Consultants Pty Ltd, Environmental Wind Speed Measurements on a Wind Tunnel model of
the 590 Orrong road Development, Armadale (Report no 66/11, 7 July 2011).
VCAT Reference No. P333/2012
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231 Neither Mr Morris nor the residents sought to examine the authors of the
study and the Council’s own expert consultant considered the study’s
methodology acceptable and its results plausible.
232 Mr Canavan stated the proposal has been modified since the study to take
account of its findings. In particular, Building F has been reduced
substantially in height (from twelve to nine storeys) and the landscape plan
has been further developed. However, the wind-performance of the current
proposal has not yet been re-assessed. Mr Canavan submitted that with
these more recent changes (and further feasible changes, if needed) an
acceptable wind environment should be achievable.
233 We find that appropriate wind conditions can be achieved by further modest
modifications that would not depend on changes outside the general
character of the proposal and that this requirement can be addressed by
permit condition.
Traffic and parking
234 The Council’s and residents’ criticisms of the proposal included—

Unsafe and congested conditions at the access point to Orrong Road.

Both not enough and too much residents’ parking in the basements.

No loading facilities in the basements.

Unsatisfactory design of the basements.

Access from Osment Street into the Osment Precinct.

Vehicle domination of the Osment precinct turning triangle.
235 We do not accept these criticisms warrant the refusal of a permit. In some
of these matters, appropriate changes to the proposal can be made.
Traffic
236 We have previously addressed the access point to Orrong Road and no
further response is required here.
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237 We rely on the statements of each of the traffic experts in making two
findings. First, there is no need on traffic grounds to refuse vehicle access
from the west end of Osment Street into the Osment precinct. Second, there
is no need on traffic grounds to relocate the access from between Buildings
R and S to east of Building S. Vehicles will not dominate the Osment
triangle, having regard to the number of dwellings and the likelihood of it
operating as a shared space similar to the Tillotson Terrace parking area.67
238 Some vehicles may already enter Osment Street (or nearby) for station drop
offs via the existing railway reserve path. The proposal enhances station
drop offs in the Osment triangle and enables commuter pedestrian access
through the central green. This may be particularly attractive for residents in
the area between Osment Street and High Street. We see no reason why any
of this should be discouraged.
239 The Osment triangle may also be used for small van loading and unloading
for the townhouses and nearby apartments. Again, this is not objectionable.
Its use can be managed by the owners corporation.
Parking
240 During the course of the hearing, on 5 June 2012, the car parking provisions
of the scheme were amended.68 This changes for what part of the proposal a
permit is required and whether it is exempt from third party notice.
241 The 57 three-bedroom apartments now require 114 car spaces (formerly
114). The 391 one or two-bedroom apartments now require 391 spaces
(formerly 782 spaces). The 18 three-bedroom townhouses now require 36
spaces (formerly 36). The 448 apartments now require 90 visitor spaces
(formerly no spaces). The 165 sq m convenience shop now requires 10
spaces (formerly 10). The 40 seat, 195 sq m café now requires 7 spaces
(formerly 24, if characterised as a restaurant). The two-practitioner maternal
health centre now requires 8 spaces (formerly 10, if characterised as a
medical centre). In total, the requirement is now 659 spaces (formerly 976).
242 The plans show 681 car spaces and 40 motorcycle bays in the two
basements. The north basement has 257 car spaces and the south basement
391 car spaces. Of the total of 681 spaces, there are 85 tandem pairs (170
spaces) and 52 small spaces (ie 5 m by 2.3 m, rather than the standard 2.6 m
by 4.9 m) and 33 car spaces for visitors. Outside the basements, there are 5
car spaces for visitors in the Osment triangle and 36 car spaces in the
townhouse garages. Total spaces in and out of the basements is therefore
731 spaces. This does not include 9 car spaces in the plaza for Flexicar (one
space), a disabled space and short term parking eg station drop offs or
visitors to the café or shop.
67
68
The obvious difference is that in Tillotson Terrace the vehicles are uncovered in the turning area
and in the Osment precinct the vehicles are stored in garages within the dwellings. This change
alone adds to the potential to which we refer.
Amendment VC90 to the Stonnington Planning Scheme.
VCAT Reference No. P333/2012
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243 Mr Hunt recommends the allocation of the 731 spaces should be as
follows—

The 154 one-bedroom apartments to each have a single space.

Of the 237 two-bedroom apartments, 130 be allocated one single
space, 50 be allocated one single space plus one small space, and the
remaining 57 be allocated a tandem pair. This is 344 spaces at a rate of
1.45 spaces per dwelling.

Of the 57 three-bedroom apartments, 28 be allocated a tandem pair, 27
be allocated two single spaces, and 2 be allocated one single space
plus one small space. This is 114 spaces at a rate of 2 spaces per
dwelling.

67 basement single spaces for visitors.

The 18 townhouses be allocated 36 garage spaces (two per townhouse,
some in tandem) and 5 visitor spaces in the Osment triangle.

The shop, café and maternal health centre be allocated 2, 2 and 7
spaces (total of 11) respectively.
244 Mr Kiriakidis supports a broadly similar allocation.
245 A permit is therefore now only required to reduce the visitor parking for
apartments from 90 to 67 spaces and to reduce the shop, café and maternal
health centre parking from 25 to 11 spaces.69 A permit is also required to
vary design standards to, among other things, create the 52 small spaces, to
create a number of shorter 9.8 m long tandem pairs, and ramps in the north
basements with their proposed grades.70
246 Many residents oppose the granting of any parking reductions and are
concerned about overflow parking in adjoining streets. We will proceed on
the basis that the exemption does not apply.71
247 The Council supports a reduced requirement for residents parking from that
proposed, especially for the apartments, to maximise the environmental
benefits of station proximity and encourage the modal shift and behavioural
change to reduce greenhouse gas emissions. While we have sympathies
with that principle, the reduction sought now only applies to the shop, café
and maternal health centre and visitor spaces. The land is not in a formal
69
70
71
The scheme cl 52.06-3.
The scheme cl 52.06-8.
Whether the residents may oppose parking reductions depends on the construction of the new
exemption provision in the scheme at cl 52.06-4. The provision is unclear and can be interpreted in
two different ways. The first, or broad way, is that if the permit application also seeks permission
under provisions of the scheme other than clause 52.06, the exemption does not apply. This clearly
applies in this proceeding. The second, or narrow way, is that if the permission required under
clause 52.06 is only for the reduction of a requirement (a ‘requirement’ relates only to parking
quantum in the clause) and not to variations to design standards, the exemption applies. This does
not apply in this proceeding. We will proceed on the basis that the issue is not yet settled, but
under either interpretation, the exemption does not apply.
VCAT Reference No. P333/2012
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parking reduction area (such as Forrest Hill) and that it is likely that the
modal shift will occur with many residents choosing to use their car only
during evenings and weekends.
248 We therefore support the proposed allocation of spaces. We would grant the
reductions for visitors (based on surveys relied on by Mr Hunt) and for the
other uses. We would grant the design standard variation for the small
spaces. We do not grant the variation for the tandems and will include a
condition to require them to lengthened to meet standards.
249 In relation to bicycle parking, the 99 basement spaces meet the statutory
requirement for 95 spaces for residents and employees. There are also 74
spaces in the station forecourt and this exceeds the statutory requirement of
49 spaces for residents and café patrons. No permit is needed for a
reduction.
Basement layout
250 The Council relied on the evidence of Mr O’Brien in submitting the
basement design was serious flawed with many design faults. One claimed
fault was the location of the ramp between the two levels of the south
basement. The circular ramp is about 160 m from the entrance in the
opposite corner of the basement. It requires making two right-angled turns
to reach and passing more than 70 spaces.
251 This is not ideal but we accept the opinion of Mr Hunt that it is acceptable
given it is a residential car park with fewer movements and where spaces
are allocated. Perversely, it may have the positive environmental outcome
of minimising car use. We accept most of the other shortcomings. We
accept Mr Hunt’s opinion that most can be overcome by permit conditions
that we intend to include.
Loading
252 Although there are no loading requirements for dwellings in the scheme, we
are not persuaded that the loading and unloading for most of the apartments
is convenient or reasonable if carried out from a proposed kerbside loading
zone on the south side of the boulevard at the plaza. We will require a
loading dock or space in one of the basements.
253 We support the waiver of loading requirements for the café, shop and
maternal health centre. These are small uses and loading is reasonable from
the nearby public realm.
VCAT Reference No. P333/2012
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Conclusion
254 At the heart of this proceeding is the tension between two policy themes.
First are those supporting higher density residential development on a large
site in the inner suburbs, on a main road and particularly well-served by
public transport including abutting Toorak station. Second are those
moderating development outcomes by seeking designs that reflect and
complement built form character in the broader surrounding area.
255 We resolve that tension in this proceeding by giving more weight to the first
policy theme for two main reasons. First, the land has a unique, almost
island-like, location given the dominance of its main road, path, park and
railway abuttals. Second, there are very few identified large sites for higher
density residential development in Stonnington and the opportunity should
not be dissipated. A positive response on this land will help ensure
implementation of the broad local policy to insulate most established
neighbourhoods from significant change.
256 The land has been identified by the Council as a large development site
since 1997. However, the Council was not able to adopt a policy or
establish in the scheme a preferred built form outcome for the land before
the Applicants began preparing their proposals.
257 Although the Council consulted the local community, the policy it
ultimately adopted was unresolved such that the Council was unable to
follow it when deciding the permit application. The proposed amendment to
the scheme to introduce a preferred built form outcome while considering
VCAT Reference No. P333/2012
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this permit application is belated and too inchoate to be given significant
weight at this time.
258 The design response is, subject to appropriate changes and conditions, an
acceptable planning outcome.
259 The decision of the Council will be set aside and a permit granted subject to
conditions.
Geoffrey Code
Member (Presiding)
VCAT Reference No. P333/2012
Michael Read
Member
Page 51 of 67
APPENDIX A
RESPONDENTS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
Michael
Morrison
Robert Lewis
Cameron Stewart
Kirsten
Anderson
Susan Moore
Ian Sutherland
Susan Sheppard
Roger Bourne
Director of
Housing
Timoli Mustica
Steven Mustica
Lynette Stewart
John & Lisa
Arup
Gary Prince
Tommy Carron
David Fiddes
Pamela Sublet
Francis Gallichio
Peter & Gaye
Avery
Jill Ford
Sally Scott
Margaret Cook
Kim & Brad
Hyde
Desmond Caroll
P A Carter
Margaret
Pittaway
Sophia Colosimo
Margot Carroll
John Perry
Garry Lloyd
Marie Watt
George
Novakovic
VCAT Reference No. P333/2012
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
John Watt
Janice Wills
Richard Ford
Colin Jones
Lawrie Mann
R JohnstonMiller
Anthony Rose
S & N Walter
John Tabbagh
Linda Walker
Jordan Green
Sarah & Martin
Walker
Peter Lidstrom
Sarah McIntyre
Bronte Neyland
Jill Davies
Peter &
Elizabeth Kelly
Miodrag Galic
Max Goonan
James Hayman
Margaret
Penhalluriack
Elaine Brennan
Richard
McNamara
Peter Mathews
Miranda
Mathews
Xiao-Yu Long
Sofia Wen Chi
Hay
Amanda Kiel
Maureen Duffy
Rachel Hill
Russell Hay
Jeremy Fox
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
Department of
Human Services
Jennifer Erdos
Tessa Bennett
Judy Carr
Linda Curtis
Suzanne Fallick
David Fallick
James Garrett
Keith Gill
Michelle Gill
Ann Hartican
Nerida Hayse
Peter Kelly
Mary Kerley
Mary Lancaster
Eric Lee
Helena Lee
Anna Legg
Heather Mack
Andrew
McCarthy
Harry McIver
Carmen O’Brien
Jacqueline Ralph
Stephanie
Reeves
Andrew
Robinson
Mehmet Salih
Janet Ward
Marilyn
Williams
Amiel & Rita
Kornhauser
Linda & Ian
Paterson
Page 52 of 67
APPENDIX B
PERMIT APPLICATION NO:
0725/11
LAND:
590 Orrong Road & 4 Osment Street,
Armadale
WHAT THE PERMIT ALLOWS:
Use and staged development for
dwellings, convenience shop, food and
drink premises (café) and maternal health
centre
Alteration to access to land in a Road
Zone Category 1
Reduction in the car parking requirement
Variation to the car parking design
standards
Removal of native vegetation
Waiver of loading requirements
Sale or consumption of liquor from the
food and drink premises (café)
CONDITIONS
Amended plans
1.
Before the first stage of the use and development starts, three copies of plans
drawn to scale and fully dimensioned, must be submitted to and approved by the
Responsible Authority. When approved, the plans will be endorsed and will then
form part of the permit. The plans must be generally in accordance with the plans
amended by the Victorian Civil and Administrative Tribunal in Proceeding
P333/2012 and identified as the 169-page book of drawings entitled Design
Report Volume 2 - Amended prepared by Denton Corker Marshall Architects and
dated 2 April 2012, but modified to show to the satisfaction of the Responsible
Authority—
Staging
a)
Details of the staging of the development.
Victory Square
b)
A pedestrian path no less than 1.5 m wide between Building R and the
boundary of Victory Square reserve. The boundary of private open space to
the dwellings in Building R must be modified accordingly. The path must
connect to the path shown between the buildings in the Park Precinct and
Toorak Park (to the west) and to Ashleigh Road and Osment Street (to the
east). The boundary between Victory Square reserve and the path on the
subject land must be suitably fenced.
Entry boulevard
c)
Detail of the entry boulevard to provide for the construction of footpaths and
a tree lined streetscape.
Access to open spaces from adjoining paths
d)
Gated access between the western village green and the adjoining path
between Toorak railway station and Orrong Road.
Building materials
e)
A statement of design intent that sets out a description of external cladding,
colours, finishes (with samples, as appropriate); detailing of important
junctions between materials, of edges and corners, of framing to openings,
of balcony balustrades and of fencing; and methods of application, where
relevant to the final finishes.
Basements
f)
Basement layouts dimensioned and complying with the design requirements
of Australian Standards or otherwise to the satisfaction of the Responsible
Authority and generally in accordance with the design comments in Annex
1 of the report of Mr Stephen Hunt of Cardno Victoria Pty Ltd dated 11
May 2012. This includes, but is not limited to, car spaces and motorcycle
spaces, circulation roadways/internal ramps, access aisles, signage, location
of wheel stops, columns, sight distances within the car park and at the
property boundaries, headroom within the basements and ramp gradients.
g)
Longitudinal sections of all ramps within the development provided as per
the Australian Standards to reduce scraping from the B85 design vehicle and
generally in accordance with the design comments in Annex 1 of the report
of Mr Stephen Hunt of Cardno Victoria Pty Ltd dated 11 May 2012. If a
ramp connects to an internal roadway, the longitudinal section should
extend from the far side of the footpath to the parking area. Longitudinal
sections must show all proposed grades, all length of grades and all levels.
h)
Minimum widths of lift foyers (including in basements) of 2.1 m.
i)
Minimum widths of corridors of 1.5 m generally and of corridors opposite
dwellings of 1.8 m.
j)
All necessary changes to provide adequate sight lines at the top and bottom
of the internal ramps in the northern basement including, if necessary,
modifications to the lift core of Building C.
k)
Meter or sub-station doors that do not open outwards into the northern
basement access road.
l)
All tandem car parking spaces no less than 10.3 m long.
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m)
All car parking spaces located next to walls or other obstructions no less
than 2.9 m wide.
n)
A pedestrian link to and from visitor car spaces in level 1 of the southern
basement.
o)
A loading dock or loading bay in one of the two basements.
Bicycle parking
p)
All bicycle spaces designed having regard to the relevant design
requirements. Manufacturer’s specifications of any proposed units must be
submitted clearly showing locations as well as relevant design details and
dimensions.
Garage or carport spaces
q)
All non-basement, non-tandem car spaces in a garage or a carport (or
otherwise constrained by a wall) no less than 6 m long and either 3.5 m wide
for a single space or 5.5 m wide for a double space. All dimensions must be
measured from inside the garage or carport. Bins stored in garages or
carports must not reduce any of the above dimensions.
r)
All non-basement tandem car spaces in a garage or a carport (or otherwise
constrained by a wall) no less than 10.3 m long and 3.5 m wide. All
dimensions must be measured from inside the garage or carport. Bins stored
in garages or carports must not reduce any of the above dimensions.
Uncovered at-grade parking
s)
Internal uncovered at-grade parking arrangements dimensioned and
complying with the design requirements of Australian Standards or
otherwise to the satisfaction of the Responsible Authority. This includes, but
is not limited to, car space and motorcycle spaces, signage, and location of
wheel stops.
Overlooking
t)
Screening of a habitable room window or deck of any dwelling if the
window or deck overlooks, within a 9 m radius, a habitable room window or
the secluded private open space of a dwelling adjoining the subject land to
meet Standard B22 of Clause 55.04-6 of the Stonnington Planning Scheme.
u)
Details of design, height and location of privacy screens between balcony
areas of each dwelling.
Storm water
v)
Provision of a storm water harvesting facility on the land.
Internal access to eastern village green
w)
A secured internal pedestrian access from the lift core at the ground level of
Buildings G and I to the eastern village green.
Osment precinct dwelling windows
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x)
The horizontal window treatments in the eastern or south-eastern facing
walls of Buildings Q, R and S in the Osment precinct replaced with vertical
window forms.
Plaza
y)
Deletion of the 90 degree parking spaces at the northern and eastern end of
the roundabout in the plaza and their replacement with parallel parking for
railway station drop offs and pick ups, provided no less than five car spaces
are retained for other purposes, including for the maternal health centre,
food and drink premises (café) and convenience shop.
z)
Setting aside one of the car spaces in the plaza for car share purposes.
Path lighting
aa)
Lighting of the northern path from Orrong Road to Toorak railway station
and lighting of the eastern path from Toorak railway station to Osment
Street.
Landscape plan
bb)
Any changes necessary to be consistent with the approved landscape plan,
including but not limited to fences and planter boxes abutting open spaces in
specified areas on the land.
Endorsed plans
2.
All use and development must be in accordance with the endorsed plans. The
endorsed plans may be amended only with the written consent of the Responsible
Authority.
Realisation of design quality
3.
Denton Corker Marshall architects or an architectural firm approved by the
Responsible Authority must be engaged to complete the design shown in the plans
endorsed under condition 1 and to oversee construction to ensure that the design
quality and appearance of the development is realised.
Trading hours
4.
The trading hours of the convenience shop are restricted to 7 am to 9 pm daily,
except with the written consent of the Responsible Authority.
5.
The trading hours of the food and drink premises (café) are restricted to 7 am to 7
pm daily, except with the written consent of the Responsible Authority.
Alcohol
6.
Alcohol may be sold or consumed on the licensed premises only between the
hours of 7 am and 7 pm each day, except with the written consent of the
Responsible Authority.
Landscaping
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7.
Before the first stage of the use and development starts, a landscape plan prepared
by a landscape architect or a suitably qualified or experienced landscape designer
must be submitted to and approved by the Responsible Authority. The landscape
plan must be drawn to scale with dimensions and three copies must be submitted.
The landscape plan must be generally in accordance with the landscape concept
plan prepared by Tract Consultants and dated 10 April 2012 but modified to show
to the satisfaction of the Responsible Authority—
a)
Existing trees, buildings and hard paved surfaces on adjoining land within 3
m of the subject land.
b)
Landscaping works to be completed for each stage of the development
shown on the plans endorsed under condition 1.
c)
Increased use of deciduous trees in open space areas including the plaza and
the central green.
d)
Maximum fence height of 1.4 m (measured externally) for the secluded
private open space of each ground floor dwelling.
e)
Details of communal open space areas.
f)
Open fencing to the railway reserve generally in accordance with the type A
treatment in the amended plans referred to in condition 1.
g)
Details of the southern pedestrian ramp along the boulevard which must be
designed to protect the health of trees located on the boundary with Toorak
Park and which must provide for excavation of existing levels by no more
than 70 mm.
h)
No excavation within 1.3 m of the south boundary with Toorak Park.
i)
Details of the retaining wall treatment required to preserve existing levels
within this 1.3 m wide area and to ensure no battering down on existing
levels within this 1.3 m wide area.
j)
The retaining wall opposite tree 12, as identified in the report prepared by
Treelogic Pty Ltd and dated August 2011, to be at least 1.7 m off the
boundary.
k)
Details of the soil type, irrigation system and any other measures necessary
to ensure successful establishment of any trees planted on structure.
l)
Any changes necessary to implement any recommendations of the approved
wind management plan.
m)
A survey (including botanical names) of all existing vegetation to be
retained and/or removed.
n)
Details of surface finishes of paths and driveways.
o)
A planting schedule of all proposed trees, shrubs and ground covers,
including botanical names, common names, pot sizes, expected sizes at
maturity, and quantities of each plant.
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p)
The extent of any cut, fill, embankment or retaining walls associated with
the landscape treatment of the land.
q)
Details of all proposed hard surface materials including paths, patio or
decked areas.
r)
Remedial treatment and management of trees on land adjoining the subject
land generally in accordance with paragraph 6.12 of the report prepared by
Treelogic Pty Ltd and dated August 2011.
When approved, the landscape plan will be endorsed and will then form part of
the permit.
8.
Before the occupation of any dwelling in a specified stage of the development, the
landscaping works required for that stage must be carried out and completed to the
satisfaction of the Responsible Authority. Landscaping for that stage must then be
maintained to the satisfaction of the Responsible Authority, including replacement
of any dead, diseased or damaged plants.
Drainage
9.
Drainage must be provided at the owner’s cost for all stages of the development to
the satisfaction of the Responsible Authority. A detailed drainage design and
associated computations must be prepared by a suitably qualified engineer and
submitted to the Responsible Authority for approval. The design must include
details of 1 in 100 year overland flow paths through the development that will be
required to protect the development.
10.
The drainage works for each stage of the development must be completed in
accordance with the plans approved by the Responsible Authority under the
supervision and to the satisfaction of the Responsible Authority.
11.
A report for the legal point of discharge must be obtained from the Responsible
Authority and a drainage design for the internal drainage for each stage of the
development must be prepared by a suitably qualified engineer in accordance with
that report before a building permit for any buildings in that stage being issued.
The drainage works must be constructed in accordance with the engineer’s design.
Roads
12.
Before the first stage of the use and development starts, a design plan for the
boulevard off Orrong Road and for the internal driveway off Osment Street must
be prepared to the satisfaction of the Responsible Authority. The design plan must
include all relevant design details including longitudinal sections, cross sections
and drainage design.
13.
Before the first stage of the use and development starts, a detailed functional
layout of the proposed signalised intersection at the access point to Orrong Road
must be submitted to and approved by VicRoads and the Responsible Authority.
The plans must be generally in accordance with the plan prepared by GTA
Consultants Pty Ltd entitled Proposed Intersection Concept Design Signalised
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Intersection – Option A2 drawing no. JM13452-05P5 and dated 5 April 2012 but
modified to remove the left turn slip lane in Sydney Street.
14.
Before the first stage of the use and development starts, a detailed staging plan for
the construction of the signalised intersection and any associated works, including
removal of the existing pedestrian operated signals in Orrong Road, must be
submitted to and approved by VicRoads and the Responsible Authority. All works
must be carried out in accordance with the times specified in the staging plan.
15.
Before any works, including intersection works, on Orrong Road start, a detailed
engineering design must be prepared generally in accordance with the approved
detailed functional layout plan and to the satisfaction of VicRoads.
16.
The preparation of the detailed engineering design and the construction and
completion of all work must be undertaken in a manner consistent with current
VicRoads’ policy, procedures and standards and at no cost to VicRoads. In order
to meet VicRoads’ requirements for these tasks the owner of the subject land will
be required to comply with the requirements documented as Standard
Requirements – Developer Funded Projects and any other requirements
considered necessary depending on the nature of the works.
17.
No works must start in, on, under or over the road reserve of Orrong Road without
having first obtained all necessary approvals under the Road Management Act
2004, the Road Safety Act 1986, any other relevant Act, or Regulations created
under those Acts.
18.
The existing pedestrian operated signals in Orrong Road must be removed in
accordance with the approved detailed staging plan and to the satisfaction of the
Responsible Authority.
19.
All redundant crossovers to the subject land in Orrong Road and the roadway and
kerb must be reinstated to the satisfaction of the Responsible Authority.
20.
The construction of a road on the land (an internal road), including the boulevard
and plaza, must be started and completed in accordance with the staging plan
approved under condition 1 and within the periods and by any dates, if specified.
21.
Before construction starts of an internal road, the owner must prepare a fully
detailed engineering plan for the internal road and submit that plan for the
approval by the Responsible Authority. This plan must clearly show that the
abutting development, including the basements, is fully protected from any
overland flow that can be expected from the road. The internal road must be
constructed in accordance with an approved detailed engineering plan and to the
satisfaction of the Responsible Authority. All necessary works, including
drainage, must be constructed at the cost of the owner.
22.
If the construction of an internal road must be completed for a particular stage
under the staging plan approved under condition 1, no buildings in that stage
requiring access from the internal road may be occupied or used until all works
required by the approved detailed engineering plan for the road are completed.
Transport and parking
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23.
By no later than the date plans are submitted for endorsement under condition 1, a
traffic and parking management plan must be submitted to and approved by the
Responsible Authority. The traffic and parking management plan must provide
for—
a)
Allocation of parking spaces to the maternal health centre, convenience
shop and the food and drink premises (café).
b)
Allocation of parking spaces on the plans endorsed under condition 1 to
dwellings must be generally in accordance with the report of Mr Stephen
Hunt of Cardno Victoria Pty Ltd dated 11 May 2012 and, in particular, a car
space labelled ‘small’ may only be allocated as a second space (the first
space being a ‘typical parking bay’) for a two-bedroom or three-bedroom
apartment.
c)
Allocation of no less than 67 spaces in the basement for visitors and 5
spaces in the Osment precinct triangle for visitors.
d)
Signage of parking spaces.
e)
Management and maintenance of the signage after any relevant stage of the
development is completed.
f)
Line marking of parking spaces.
g)
Details of the car park security system and its operation, including any
proposed access controls such as boom gates securing access to the car park.
h)
Measures to minimise possible traffic congestion, lack of safety or other
adverse traffic issue and assist with the safe operation of traffic in general.
i)
Management of loading facilities on the land.
j)
How the parking controls will be enforced to ensure compliance by users.
k)
Details of measures to facilitate access between the visitor parking area in
the south basement with the entry boulevard and central plaza.
l)
A statement that the owners and occupiers of a dwelling shown on the plans
endorsed under condition 1 are not entitled to receive a resident parking
permit from the Stonnington City Council.
When approved, the traffic and parking management plan will be endorsed and will
then form part of the permit.
24.
By no later than the date plans are submitted for endorsement under condition 1, a
waste management plan must be submitted to and approved by the Responsible
Authority. The waste management plan must be generally in accordance with the
revised waste management plan prepared by Leigh Design Pty Ltd dated 16
November 2011 and must include or specify—
a)
The location and dimensions of waste areas.
b)
The number of bins to be provided.
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c)
The method of waste and recyclables collection, including details of the
route(s) that bins will be hauled in order to facilitate the eventual method of
waste collection.
d)
The hours of waste and recyclables collection that correspond with the
Council’s Local Laws.
e)
The method of waste and recyclables collection.
f)
The strategies for minimising the generation of waste and recyclables from
the development.
g)
If required to ensure acceptable waste collection, sufficient headroom in the
basement to allow the passage of waste collection vehicles.
h)
If required to ensure acceptable waste collection, sufficient turning circles
for the waste collection vehicles to drive out in forward gear from within the
basement(s).
When approved, the waste management plan will be endorsed and will then form
part of the permit. Waste collection from the land must be in accordance with the
approved waste management plan, to the satisfaction of the Responsible Authority
25.
All garbage collected from the land must be managed and conducted so as to not
adversely affect the amenity of the locality by reason of appearance or odour
emission.
26.
Except as permitted by the approved waste management plan, all storage and
collection of garbage and other solid wastes must occur within the curtilage of the
land. This area must be properly graded and drained and screened from public
view to the satisfaction of the Responsible Authority.
Wind
27.
By no later than the date plans are submitted for endorsement under condition 1, a
wind management plan must be submitted to and approved by the Responsible
Authority. The wind management plan must identify how the development will
ensure satisfactory wind conditions and identify measures that are required to
ensure satisfactory wind conditions. For the purpose of this condition, satisfactory
wind conditions are those that apply to the environmental wind criteria proposed
in the document Environmental Wind Speed Measurement on a Wind Tunnel
Model of 590 Orrong Road prepared by MEL Consultants and dated July 2011.
28.
When approved, the wind management plan will be endorsed and then form part
of the permit. The development of each stage must incorporate any recommended
measures for that stage to the satisfaction of the Responsible Authority.
Environmental audit
29.
After the carrying out of any remediation works that may be required, and before
a residential use starts in a stage of the development or before the construction or
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carrying out of buildings and works in association with a stage of the development
containing a residential use starts—
30.
a)
A certificate of environmental audit must be issued for that part of the
subject land affected by the stage in accordance with Part IXD of the
Environment Protection Act 1970, or
b)
An environmental auditor appointed under the Environment Protection Act
1970 must make a statement in accordance with Part IXD of that Act that
the environmental conditions of that part of the subject land affected by the
stage are suitable for the residential use.
Before the occupation of any building in a stage of the development, all of the
conditions of the statement of environmental audit for the land in that stage must
be complied with to the satisfaction of the Responsible Authority.
Levels
31.
The levels of any of the surrounding footpaths, laneways and adjoining park land
must not be altered or lowered in any way to facilitate the development without prior
written consent from the relevant authority.
Services
32.
Any poles, service pits or other structures/features on a footpath or a road, including
Orrong Road, that must be relocated to facilitate the development must be relocated
at the cost of the owner and subject to the relevant authority’s consent.
Plant noise
33.
Noise from any air extraction fans, air conditioning and all other plant and
equipment installed on the land must not exceed noise levels required to be met
under any relevant State Environmental Protection Policy. Ventilation systems must
be designed and installed in accordance with relevant Australian Standards or be to
the satisfaction of the Responsible Authority.
External lighting
34.
Any external lighting must be designed, baffled and located to suitably manage any
adverse effects on adjoining land to the satisfaction of the Responsible Authority.
Utility services
35.
Before the development in any stage is completed, all utility services to the subject
land and buildings approved as part of that stage must be provided underground to
the satisfaction of the Responsible Authority.
Access to or encroachment over Council land
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36.
Other than as permitted by the plans endorsed under condition 1, no access
(pedestrian or vehicular) to or encroachment over adjoining land in Council
ownership or control (including Toorak Park and Victory Square) must be provided
from the subject land.
Disability access
37.
By no later than the date plans for a stage of the development are submitted for
endorsement under condition 1, a disability access management plan must be
submitted to and approved by the Responsible Authority. The disability access
management plan must be prepared by a suitably qualified person and must satisfy
the relevant Australian Standards and laws. The disability access management
plan must be generally in accordance with the report prepared by MGAC dated 13
December 2011 and include details on, but not be limited to—
a)
Access to the development for persons with a disability.
b)
Parking for people with disabilities, including layout, dimensions and total
number needed for the development.
c)
External paths of travel.
d)
Ramps and stair design.
e)
Access to all public areas.
When approved, the disability access management plan will be endorsed and will
then form part of the permit.
38.
Before a building in any stage is occupied, access for persons with disabilities
must be provided for the building in compliance with the Disability
Discrimination Act 1992 (Cth) and such access must be maintained at all times the
building is occupied or in use.
Construction management
39.
Before any buildings and works in a stage start, a construction management plan
for that stage must be submitted and approved by the Responsible Authority. The
construction management plan for that stage must include details on how the
construction will be undertaken so it has minimal impact on the environment.
Details to be provided in the construction management plan will include, but are
not limited to—
a)
The stage of the development to which the construction management plan
relates.
b)
A dilapidation report of existing buildings and works for land in the stage
and of existing roads (including footpaths) managed by the Council that
abut land in the stage.
c)
Full work schedule/construction management plan for the stage to ascertain
impacts on surrounding land.
d)
Public/worker access and safety issues.
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e)
Hours of construction activity (including when out-of-hours works are
proposed and what type of works are to be conducted outside the hours of
operation).
f)
The location of hoardings, hoists and workers amenities.
g)
Storage of building materials and waste and material stockpiles.
h)
The location of public precautions, loading zones, site sheds, materials,
cranes and crane/hoisting zones, gantries and any other construction related
items or equipment to be located in any street.
i)
The provision of a traffic management plan, including detailed plans that
show all items to be placed on any street during construction in that stage in
accordance with approval by the responsible Building Surveyor, entry and
exit points for construction vehicles (including temporary and permanent
vehicle crossings), traffic management during construction including any
temporary roads, road closures/road occupation/footpath closures, work
zones/construction zones to accommodate vehicles and deliveries.
j)
Service connections/road and footpath openings and anticipated impact on
public land during the connection of different services.
k)
Means of vehicular access to the land in relation to the work required for
any particular stage of development, together with hours of access.
l)
Measures to be taken to protect the Council’s infrastructure from damage.
m)
Existing services and environmental management.
n)
A list of all environmental hazards that the activities on-site pose, including
but not limited to contaminated soil, materials and waste, dust, stormwater
contamination from run-off and wash-waters, sediment from the site on
roads, construction noise, hours of operation, vibration, washing of concrete
trucks and other vehicles and machinery, spillage from refuelling cranes and
other vehicles and machinery.
o)
Protection measures that will be undertaken to minimise the risk of the listed
environmental hazards.
p)
Regular monitoring/inspections of the above protection measures.
q)
Identification of who will be responsible for managing compliance with the
construction management plan.
When approved, the construction management plan for the stage will be endorsed
and will then form part of the permit. The owner must comply with the approved
construction management plan for the stage to the satisfaction of the Responsible
Authority.
40.
All buildings and works must be carried out in accordance with an approved
construction management plan to the satisfaction of the Responsible Authority.
41.
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
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channel at the cost of the owner/permit holder to the satisfaction of the Responsible
Authority.
42.
Any existing asset of the Council that is damaged during construction works by the
building and works must be broken out and re-instated to the satisfaction of the
Responsible Authority and at the cost of the owner.
Environmental sustainable design
43.
Before any buildings or works start, an environmentally sustainable development
management plan (ESD management plan) must be submitted to and approved by
the Responsible Authority. The ESD management plan must be generally in
accordance with the report prepared by Norman Disney & Young dated 18
November 2011 and must address in adequate detail the following—
a)
Energy Management.
b)
Water Conservation and Re-use.
c)
Demolition and Construction Waste Management.
d)
The relevant statutory obligations and appropriate sustainability targets or
performance standards.
e)
The means by which the appropriate target or performance will be achieved.
f)
The responsibilities and a schedule for implementation, and ongoing
management, maintenance and monitoring.
g)
How the design elements, technologies and operational practices that
comprise the ESD management plan can be maintained over time.
When approved, the ESD management plan will be endorsed and will then form
part of the permit.
Acoustic
44.
Before any plans are endorsed under condition 1, an acoustic report prepared by a
suitably qualified acoustic engineer must be submitted to and approved by the
Responsible Authority. The report must prescribe the form of acoustic treatment
to protect all dwelling occupants from external noise sources associated with the
abutting rail system to achieve an internal noise level of 35dB(A)Leq and
55dB(A)Lmax in bedrooms between 10 pm and 7 am. The recommendations
contained in the approved acoustic report must be implemented and completed
and, if they are recommendations of an ongoing nature, must be implemented and
maintained all to the satisfaction of the Responsible Authority.
Melbourne Water
45.
No polluted and / or sediment laden runoff is to be discharged directly or
indirectly into Melbourne Water's drains or watercourses.
Public transport
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46.
Before the detailed functional layout of the proposed signalised intersection at the
access point to Orrong Road is approved under condition 13, the owner must enter
into an agreement with the Director of Public Transport to construct by an agreed
date two bus shelters/stops and associated infrastructure on both sides of Orrong
Road near the subject land which comply with the Disability Discrimination Act
1992 (Cth).
47.
Before the development starts, the owner must obtain from the Rail Operator the
conditions and safety requirements for working near an operating railway and live
power feeders and must comply with those conditions and safety requirements.
48.
The owner must ensure that all public transport infrastructure (including overhead
power and supporting infrastructure for trains) is not damaged during the
construction period. Any damage to public transport infrastructure as a
consequence of the construction period must be rectified to the satisfaction of the
Director of Public Transport at the full cost to the owner.
49.
The owner must take all reasonable steps to ensure that disruption to train
operations within the railway corridor is kept to a minimum during the
construction of any stage of the development. The owner must give notice in
writing to the Rail Operator and the Director of Public Transport of any foreseen
disruptions to operations during the construction and of proposed mitigation
measures no less than fourteen days before the construction starts.
50.
No lighting is to be erected that throws light onto railway tracks or which
interferes with the visibility of signals and the rail lines by train drivers.
51.
Building materials (including glass/window treatments) along the rail corridor
must not cause reflections and avoid using red or green colour schemes that may
interfere with driver operations.
52.
No drainage, effluent, waste, soil or other materials must enter or be directed to
railway land or stored or deposited on railway land.
53.
Permanent soil anchors must not be installed on railway land. Temporary soil
anchors may be installed to the satisfaction of the Director of Public Transport.
Expiry
54.
This permit will expire if one of the following circumstances applies—
a)
The first stage of the development shown on the plans endorsed under
condition 1 is not started within three years of the date of this permit.
b)
The final stage of the development shown on the plans endorsed under
condition 1 is not completed within eight years of the date of this permit.
The Responsible Authority may extend the periods referred to above if a request is
made in writing before the permit expires or within three months afterwards.
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--- End of Conditions ---
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