VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P520/2023
Permit Application no. PP21/1191 	
CATCHWORDS	
Boroondara Planning Scheme; Application under section 77 of the Planning and Environment Act 1987 (Vic); Neighbourhood Residential Zone Schedule 1 (NRZ1); Four double storey dwellings above basement; Clause 55; Neighbourhood character; Landscaping; Visual Amenity; Overshadowing neighbouring private open space.	

Applicant	Litsa Brake	

Responsible Authority	Boroondara City Council	

SUBJECT LAND	1-3 Annadale Street
KEW VIC 3101	

HEARING TYPE	Hearing	

DATE OF HEARING	6 December 2023	

date of interim order	7 December 2023	
DATE OF ORDER	6 June 2024	
date of correction	13 June 2024	

CITATION	Brake v Boroondara CC (Corrected) [2024] VCAT 532   	

Order
Permit granted
1	In application P520/2023 the decision of the responsible authority is set aside.
2	In planning permit application PP21/1191 a permit is granted and directed to be issued for the land at 1-3 Annadale Street, Kew in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Construction of four dwellings on a lot and construction of a front fence within 3m of a street in the Neighbourhood Residential Zone - Schedule 1, in accordance with the endorsed plans.

Mary-Anne Taranto
Member			

Appearances
For Litsa Brake	Mr Darren Wong, solicitor of Planology
He called evidence from the following witness:
•	Mr Darren Atkinson, landscape architect 	of Human Habitats	
For Boroondara City Council	Mr Andrew Clarke, town planner of Clarke Planning Pty Ltd	

Information
Description of proposal	Construction of four double storey dwellings above a basement car park. 	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 (Vic) – to review the refusal to grant a permit. 	
Zone and overlays	Neighbourhood Residential Zone – Schedule 1 (NRZ1)
No overlay controls apply	
Permit requirements	Clause 32.09-6 – Construct two or more dwellings on a lot and construct a front fence within 3m of a street in NRZ1	
Key scheme policies and provisions	Clauses 02.01, 02.02, 02.03, 02.04, 15, 16, 18, 53.18, 55, 65 and 71.02	
Land description	Located at the western termination of Mortimer Street at its junction with Annadale Street, this irregular shaped 1227sqm site has a 23.36m street frontage on its east side and abuttal to a laneway in its north-west corner. Its longer boundaries extend for a total distance of about 65.25m and 63.9m (west and east respectively). North and south side boundaries span a distance of  about 21.46m and 19.61m respectively. 
The land is developed with two single storey dwellings in a pair that are sited on the lot’s southern half. Vehicle access to a garage built to the south boundary occurs from Annadale Street. A number of mature trees are present on the site, concentrated along boundaries.	
Permit history	Planning permit PP18/00721 was issued on 5 April 2019 for four dwellings which included retention of the two existing dwellings and the construction of two new 2-storey dwellings. The permit was not acted on and has since expired. Plans endorsed in 2020 under Condition 1 were filed, together with other documents forming part of the permit. 	
Tribunal inspection	Unaccompanied before and after the hearing.	

  Reasons
What is this proceeding about?
Background
1	Litsa Brake (the applicant) has sought a review of the Boroondara City Council’s decision to refuse a planning permit for the construction of four 2-storey dwellings on a large and unusually configured site in Kew.
2	The applicant relies on amended plans that I substituted at the start of the hearing for those upon which the council based its decision. While substantially similar in form, number and appearance, notable changes include greater setbacks to the north-east part of Unit 4’s upper level and placement of rain water tanks underground.
3	The council maintains its opposition to the development in the amended form now before me.
4	It did however advise of changes to its second ground of refusal in response to Amendment VC243 to all Victorian planning schemes that occurred after the council’s decision. The amendment can be generally described as codifying certain clause 55 standards of planning schemes that provide design guidance for multi-dwellings.
5	In modifying its second ground of refusal, neighbourhood character and the proposal’s visual mass and bulk remain a concern for the council. It is said that the proposal would not achieve an acceptable streetscape response and would cause unreasonable amenity impacts to adjoining dwellings particularly to the west. Landscaping opportunities and overshadowing impacts of two neighbouring dwellings are also said to be unacceptable.
6	These grounds are refuted by the applicant and reliance is made on the landscape evidence of Mr Atkinson.
Interim order
7	I ruled during the hearing that the information shown on the plans was deficient for the purposes of properly assessing whether the proposal meets the ‘Overshadowing open space objective’ at clause 55.04-5 and the numeric requirements of the corresponding Standard B21.
8	My subsequent interim order required the provision of a further survey plan and a half hourly analysis of shadow impacts in relation to the six abutting dwellings to the south. The impacts of shadows cast by any screen structures associated with the proposal were also required to be identified.  
9	I record that in the period between the hearing and preparation of the further survey plan, new boundary fencing was installed. The latest survey plan shows that this includes a new fence 2.1m to 2.2m in height with a 0.6m lattice screen above it along the full length of the west and north site boundaries.
10	Material filed in response to the interim order, confirms that the proposal would cause additional overshadowing in the private open space of No. 28 and 30 Atkins Street and in doing so would not meet the requirements of Standard B21.
11	The parties express different opinions about the acceptability of these overshadowing impacts, a matter to which I return. 
Uncontroversial matters
12	In summary, the following matters are uncontroversial:
•	Development of the site for multi-dwellings is in-principle an acceptable outcome and consistent with residential policy objectives at clause 55.02-2.
•	The site has an unusual configuration, is larger than most of its immediate neighbours and is located in a somewhat unusual subdivision and development pattern context.
•	There is great diversity of housing styles, forms and materials from various eras, including many double storey dwellings in the surrounding area.
•	Vegetation types and its density in the private realm is quite variable and includes examples of large established canopy trees as well as properties without.
•	The southern interface to the dwelling at No. 5 Annadale Street is not highly sensitive. This is due to the limited lot abuttal, screen elements to its sides, garage wall on boundary and distance of this dwelling and the siting of its secluded private open space further west of the review site.
•	The degree of sensitivity to the dwelling at 12 Mortimer Street is also limited. It too has a side abuttal with screened windows and relatively dense perimeter planting comprising an evergreen (Ficus) hedge that is in its establishment phase.  
•	The interface to the west is most sensitive due to the number of adjoining lots (six) and abuttals with secluded private open space in back yards.
•	The interface to the north which is partly to a laneway, garaging and to a vacant lot with a Cotham Rd address is not particularly sensitive. The latter is described as a candidate site for residential development, but the parties were unaware of any formal permit applications at the time of the hearing.
•	The only non-compliance with the side and rear boundary setback requirements of Standard B17 (clause 55.04-1) relates to the lift element of Unit 4 relative to the east boundary.
•	The number of car spaces and functionality of basement design for vehicles is acceptable and meet the requirements of clause 52.06. 
•	The proposal does not result in any unacceptable traffic related impacts. 
•	The quality of on-site amenity for future residents is acceptable.
•	The extent of vegetation removal is acceptable and subject to appropriate conditions, retention of two trees in the south-west corner of the site (Trees 10 and 11) can be achieved.
•	The palette of materials and finishes are acceptable. 
Determinative Issues
13	In the context of matters that are uncontroversial and which I find are acceptable, the determinative issues that require consideration relate to the acceptability of:
•	the proposal’s response to the streetscape in neighbourhood character terms;
•	visual bulk and neighbourhood character considerations at the interface with neighbouring dwellings to the east and west;
•	the landscaping response;
•	overshadowing of neighbouring private open space at 28 and 30 Atkins Street.
14	My substantive findings are that with some minor modifications including changes to address overshadowing of neighbouring properties, the proposal is an acceptable one and I will grant a permit. My reasons follow.
what is the planning context?
Overview of controls, policy framework and clause 55
Zone requirements
15	The site is within the NRZ1, which applies to areas described as ‘General Suburban 3 and 4 – Suburban Precincts Without a Consistent Backyard Character’. Zone objectives seek to recognise areas of predominantly single and double storey residential development and to manage and ensure that development respects identified neighbourhood character, heritage, environmental or landscape characteristics.
16	A permit is required to construct two or more dwellings on a lot and to construct a front fence within 3m of the street as the height specified in clause 55.06-2 of 1.5m is exceeded by this proposal.  
17	A minimum garden area requirement of 35% applies and this is met by the proposal which provides a garden area of 45.35%.
18	In terms of building height, the site has a slope that meets specified criteria of clause 32.09-11 which allows building heights up to a maximum of 10m. The proposal has a maximum height of 9.05m and complies with this mandatory requirement.
19	Schedule 1 does not specify any neighbourhood character objectives, minimum subdivision area, variations to clause 55 standards or variations to the default building height. 
20	Application requirements are specified at clause 5.0 of Schedule 1 which require applications to include a landscape plan and a written assessment that considers and responds to the Boroondara Neighbourhood Character Study Precinct Statements including the preferred character statement and design guidelines. 
21	Decision guidelines are also specified at clause 32.09-14 and clause 6.0 of Schedule 1. These variously refer to a consideration of the objectives, standards and decision guidelines of clause 55 as appropriate, and the preferred character statement and design guidelines contained in the Boroondara Neighbourhood Character Study Precinct Statements 2013.
Strategic framework and key policies
22	According to the housing Framework Plan in the Municipal Planning Strategy (MPS), the site is located within the ‘Suburban precincts without a consistent open backyard’. Such precincts are included in a ‘Moderate change area’. These areas are expected to ‘Support moderate change consisting of detached dwellings, villas and townhouses as well as apartment buildings where appropriate along main roads…’.
23	An aging population and changing household size are said to be driving demand for diverse housing options. Strategic directions at clause 02.03-5 refer to the provision of such housing that protects preferred neighbourhood character and adjoining residential amenity and which is sufficiently flexible to account for age and diverse mobility needs. 
24	A key local policy is found at clause 15.01-5L – Neighbourhood character – Boroondara.  
25	Its objective is ‘To ensure development retains and enhances the key character attributes that contribute to a precinct’s preferred character’.
26	The site is in Precinct 16 and objectives, strategies and a policy guideline applicable to the NRZ1 and this precinct are specified. These are:
Objectives
To provide for development that respects the suburban, detached character.
To enhance the precincts’ sense of greenery and open feel.
Strategies
Set development back from front, side and rear boundaries to maintain a sense of separation between buildings.
Encourage development to retain space for canopy trees in front and rear gardens.
Provide private open space for each dwelling at ground level.
Articulate development to reduce visual bulk impacts on adjoining properties.
Design multi-dwelling developments to read as a single detached dwelling from the street.
Avoid continuous building mass for the length of a property by providing upper level separation between dwellings and varying surface alignment and materials within continuous wall planes.
Discourage apartment style developments, unless they are part of the character of the immediate area.
Policy guideline
Consider as relevant:
•	Encouraging development of up to 2 storeys.
27	General strategies applicable to all precincts are also specified. These seek to:
•	Maintain the City’s valued residential visual amenity including landscaped settings and leafy streets;
•	Avoid the loss of mature trees and gardens and ensure development provides adequate space for new vegetation, particularly canopy trees.
•	Ensure … that development respects, responds to and makes a positive contribution to the precinct’s preferred character.
28	The Boroondara Neighbourhood Character Study Precinct Statements 2013 is identified as a policy document. It is also included as a background document in the schedule to clause 72.08. However, background documents does not form part of the planning scheme and decision makers are not required  to give effect to them. This stands in contrast to the MPS and Planning Policy Framework (PPF) – both of which must not only be taken into account, but also given effect to when making a decision.  
29	Consequently, in relative terms I give greater weight to policies contained in the planning scheme than the Boroondara Neighbourhood Character Study Precinct Statements 2013. The latter has the standing of a policy document and background document external to the planning scheme that I have considered but am not required to give effect to.
Clause 55
30	A development must meet all of the objectives and should meet all of the standards of clause 55. Due to the effect of Amendment VC243:
•	If a development meets standard B6, B7, B8, B17, B18, B19, B20, B21, B22, B27, B28, B30 or B32, it is deemed to meet the objective for that standard.
•	Where standard B6, B7, B8, B17, B18, B19, B20, B21, B22, B27, B28, B30 or B32 is met the decision guidelines for that standard do not apply to the application.  
31	For convenience, I refer to these clause 55 standards as ‘codified standards’ and the remaining clause 55 standards as ‘non-codified standards’. 
Codified standards and objectives met
32	In this case, the proposal complies with the following codified standards, thus meeting the corresponding objective:
•	Standard B7 – Building height (9.05m);
•	Standard B8 – Site coverage (43.5%);
•	Standard B17 – Side and rear setbacks met in part at north, west and south site boundaries but not in relation to Unit 4’s lift wall adjacent to east boundary;
•	Standard B18 – Walls on boundaries (none proposed);
•	Standard B19 – Daylight to existing windows;
•	Standard B20 – North facing windows;
•	Standard B22 – Overlooking;
•	Standard B27 – Daylight;
•	Standard B28 – Private open space; and
•	Standard B30 – Storage.
Codified standards not met
33	Codified standards whose numeric requirements are not met are:
•	Standard B6 –  Street setback 
•	Standard B17 – Side and rear setbacks – Limited to Unit 4’s lift wall adjacent to the east boundary only
•	Standard B21 – Overshadowing open space
•	Standard B32 –  Front fence objective 
34	I have considered these four standards together with remaining clause 55 non-codified standards and their decision guidelines in determining whether their objectives are met. 
35	In these reasons, I discuss only those standards and objectives which are relevant to the determinative issues in this proceeding.
streetscape response & neighbourhood character
Issues
36	The council takes issue with a number of design features which when combined, lead it to conclude that an acceptable neighbourhood character response is not achieved.
37	More particularly, the council’s concerns can be summarised as follows:
•	the space between dwellings is too modest and not appreciable on oblique views, 
•	the height and appearance of the front fence is not acceptable in the context of surrounding fence heights and styles;
•	front setbacks of Units 1 and 2 are not acceptable relative to neighbours; and
•	the available space for canopy trees and type of landscaping, particularly in the front setback, is inadequate.
38	Through its submissions and landscaping evidence of Mr Atkinson, the applicant contends that the built form and landscape features of this location are so variable that the design response can be absorbed within the streetscape without unacceptable character impacts.
Tribunal’s findings
Clause 55 assessment approach
39	In deciding whether the proposal is acceptable on neighbourhood character grounds, I agree with the findings of Senior Member J A Bennet in Oechsle v Frankston CC [2023] VCAT 1356 (Oechsle):
21	I note that the objectives for standards B6, B7, B8, B17, B18 and B32 include reference to respecting existing or preferred neighbourhood character. It would therefore be an error for me to refuse the application because of non-compliance with the specific standard or the related objective referencing neighbourhood character for those six standards. Nor could I refuse the application in relation to the other seven [codified] standards if they are met. 
22	Consequently, I do not agree … that the proposal should be refused because of what are submitted to be unacceptable setbacks, excessive overshadowing and other built form aspects of the proposal assessed under the [codified] standards … .
…
30	However, I acknowledge that even if all the requirements in clause 55 relating to standards B6, B7, B8, B17, B18, B19, B20, B21, B22, B27, B28, B30 or B32 are met, an application could still be refused on neighbourhood character grounds. That is because clause 55 contains qualitative standards that require a judgement call as to whether the related objective is met. 
31	For example, standard B31 concerning detailed design is a qualitative standard dealing with the design of buildings. The objective encourages design detail that respects existing and preferred neighbourhood character. The decision guidelines state that the responsible authority must consider:
•	Any relevant neighbourhood character objective, policy or statement set out in this scheme.
•	The design response.
•	The effect on the visual bulk of the building and whether this is acceptable in the neighbourhood setting.
•	Whether the design is innovative and of a high architectural standard.
40	I have adopted the principles that underscore the Tribunal’s findings in Oechsle in the assessment of the the proposal before me under clause 55. 
Preferred Neighbourhood character statement
41	A preferred character is expressed and is to be found in the Boroondara Neighbourhood Character Study Precinct Statements 2013. It states the following:
To maintain and enhance the single storey, historic character of the precinct.
This will be achieved by:
•	Ensuring buildings are consistently setback from front boundaries to retain the existing streetscape rhythm.
•	Ensuring new developments and additions respect the predominant building scale and forms of the streetscape;
•	Encourage design that integrates with the heritage styles of the precinct;
•	Ensuring garages and carports do not dominate the streetscape; and
•	Encouraging low or open style front fences.
42	In this part of Precinct 16:
•	a large number of two storey dwellings or original single storey dwellings with later second storey additions are present in Mortimer, Annadale and Maxwell Streets or which have an abuttal to the site’s west boundary in Atkins Street;
•	building forms are highly variable and include original timber dwellings with pitched roofs and front verandahs – particularly in Mortimer Street together with a strong presence of more recent larger rectilinear masonry dwellings that are brick clad or rendered; 
•	there are no properties of identified heritage significance that could be reasonably said to contribute to the precinct’s historic character;
•	front fences comprise a mix of low open styles and higher masonry and timber paling forms above and below 1.5m in height; 
•	front building setbacks display considerable variability but are notably modest in Annadale and Maxwell Streets.
43	The preferred character statement is not one that truly reflects existing character features. This neighbourhood displays many variable features that do not appreciably align with ‘a single storey historic character’. 
44	Further, the unusual siting and configuration of this site at its junction with two roads on a bend influences the approach that might otherwise be adopted for sites more typically encountered in either a mid-block or corner setting. In saying this I mindful of the site’s location within a moderate change area where a moderate level of housing growth must be reasonably expected. 
45	In the circumstances, I have found that the statement of preferred character is to be approached with a considerable degree of flexibility in assessing this proposal’s response to it. It remains that greater weight also applies to the policies found within and forming part of the planning scheme. In the circumstances, the existing features of the physical context are also particularly instructive in assessing the acceptability of the proposal’s response to neighbourhood character.  
Application of Clause 15.01-5L
46	Objectives for Precinct 16 at clause 15.01-5L refer to ‘development that respects the suburban, detached character’ and to enhance the precinct’s ‘… sense of greenery and open feel’.
47	When the strategies for this precinct are read as a whole, this policy promotes a siting pattern of space around buildings between different lots, in which landscaping is to be provided. Such a response is intended to meet objectives for this precinct seeking to maintain the suburban, detached character and sense of openness and greenery.
48	While space between buildings on the same site is also sought, this strategy is to be read in the context of several other design strategies related to design detailing that seek to limit the appearance of a continuous building mass.
49	I have approached my assessment of the proposal against clause 15.01-5L with these considerations in mind. 
Assessment
50	At the outset, I have no difficulty with the provision of 2-storey dwelling forms that adopt a townhouse typology. This is an area earmarked for moderate change of which large contemporary dwellings that are 2-storey in scale are an intrinsic part of this area’s character. Examples of both are evident at No. 12 Mortimer Street and No. 5 Annadale Street. The former terminates north-bound views along Annadale Street. A recently built 2-storey dwelling at 13 Maxwell Street similarly terminates south-bound views along Annadale Street at the opposite end of this street.
51	Westward views towards the development along Mortimer Street will similarly terminate towards Unit 1, albeit partially screened by the foliage of street trees which include some evergreen species. 
52	Northward views in the oblique from the street will be largely limited to Units 1 and 2 and upper level portions of Units 3 and 4.
53	The built form response while robust, is nonetheless an acceptable one in its own right having regard to the scale, forms and development pattern that has emerged nearby and which is an established part of the existing neighbourhood character. Proposed dwellings have an interesting and cohesive variety of materials and brick work patterning that will provide articulation and segmentation of building mass. Their design is well executed and of a standard I regard as ranging from very good to high quality.
54	In relation to front setbacks and the non-compliance with Standard B6, at ground level, Unit 1’s footprint ranges from 4.26m to about 5.9m. Upper level setbacks range from 5.1m to 5.9m.  This compares with the 4.81m setback required to meet Standard B6 based on the abutting 2-storey dwelling to the south at 5 Annadale Street.  This is the only existing building on an abutting lot facing the same street and the site is not on a corner.    
55	The lot configuration relative to the road reserve and the siting of the proposed dwellings is such that I am led to conclude that this front setback requirement only applies to Unit 1.
56	The street setback objective at clause 55.03-1 seeks to ensure that setbacks of buildings from a street respect the existing or preferred character and make efficient use of the site. I find that the proposal strikes an acceptable balance in meeting both parts of this objective for the following reasons:
•	The degree of non-compliance is relatively minor and is confined to a ground level portion of Unit 1 spanning a distance of around 4.7m across a 23.36m frontage;
•	Unit 1’s setback from the south boundary is about 8.6m which provides an acceptable spatial transition to No. 5 Annadale Street and enables exposure to proposed and existing vegetation along the driveway and at the rear;
•	The existing development on the site has a front setback of approximately 4.5m spanning a distance of more than 10m; 
•	Front street setbacks are quite variable and include buildings constructed to front boundaries such as the two garages diagonally opposite;   
•	The visual impact of the development will be acceptable from the street and adjoining properties;
•	There is no existing vegetation in the front setback worthy of retention that is affected by the proposed setback.
57	In relation to the appearance of Unit 2 from the public realm, I agree with the council’s submissions that views towards its east elevation will most likely be appreciable across the front yard of 12 Mortimer Street. The relationship of Unit 2 to the east boundary is one of a side boundary setback, despite being visible in oblique views from the street and having its front door facing this aspect.  Relevantly, the setbacks of this unit (and Unit 3) from this boundary fully comply with the numeric requirements of Standard B17, thus meeting the objective which includes neighbourhood character for the purposes of this standard and objective.
58	In the context of the proposal’s streetscape interface, I now turn to the proposal’s response to non-codified standards B1 (Neighbourhood character) and B30 (Design detail) and to codified standard B31 (Front fences) whose objectives all refer to neighbourhood character.
59	Other non-codified standards of particular relevance to my assessment of streetscape related matters are Standard B5 (Integration with the street) and Standard B13 (Landscaping). The latter’s objective includes respect for the landscape character of the neighbourhood.
60	I acknowledge council’s concerns that from oblique vantage points in the streetscape, the spacing between the proposed units will not be readily appreciable. I have however formed the view that the design of the proposed dwellings generally incorporates appropriate levels of design detailing with varied setbacks, materials and building forms capable of breaking down building mass. I will however require the introduction of greater horizontal articulation to the lift wall elements at their second storey level generally in the central area between their floors and ceilings to moderate their vertical forms. This could, for example take the form of contrasting brickwork patterns or forms. This can be included as a permit condition and will apply to all four units.
61	Both Units 1 and 2 are to be provided with an adequate amount of space for landscaping in front of them capable of softening their appearance. The design response will achieve an acceptable level of integration with the street and positively contribute to the mixed landscape character of this neighbourhood. I find the proposed landscaping shown in the landscaping plan at this interface is broadly acceptable. 
62	I do however agree with the council’s submission that the two Capital Pear trees proposed either side of the Bull Bay Magnolia in front of Unit 1 may not reach their full growth potential beneath the canopy of this larger central feature tree. These are however matters of detail that can be resolved through the secondary consent process with council’s further assessment of the landscape plan. The two Pear trees could, for example be substituted for smaller species, an outcome that I would still find acceptable.     
63	In relation to the front fence, its height varies from 1.8m to 2.7m. The proposed fence exceeds the 1.5m maximum required to satisfy Standard B32 and also requires a permit because it is located within 3m of street under clause 32.09-7. 
64	Having considered the corresponding decision guidelines I find that this fence is acceptable and would meet the objective at clause 55.06-2 for the following reasons:
•	The unusual lot configuration and street pattern which gives rise to extended front-on views in the street from the east against which the reasonable privacy needs of residents can be balanced;
•	The design of the front fence which substantially comprises aluminium slats with a degree of transparency above its low masonry base;
•	The inclusion of large areas of glazing facing the street that will provide reasonable levels of surveillance and streetscape integration;
•	The degree to which much of the front fence is set back from the frontage, ranging from 2.7m to 2.9m allowing deep soil planting in the foreground capable of softening proposed fencing;
•	The extent of the front boundary which is unfenced; and
•	The presence of front fencing higher than 1.5m on surrounding properties nearby.  
65	Overall, I conclude that subject to the above modifications, the proposal’s streetscape presentation will be acceptable. It:
•	respects the landscape character of the neighbourhood and provides appropriate landscaping, meeting the landscaping objective at clause 55.03-8;
•	has a street setback that respects the preferred neighbourhood character and makes efficient use of the site, meeting the street setback objective of clause 55.03-1;
•	provides appropriate levels of engagement and integration with the street, meeting the objective at clause 55.02-5; and
•	includes design detail that subject to some minor modifications, variously respects the preferred neighbourhood character and responds to the features of the site and surrounding area in the context of objectives at clauses 55.02-1 and 55.06-1.
visual bulk, neighbourhood character and the private realm
Issues
66	The council’s primary concern is the proposal’s built form response at its western interface. It submits that the development will read as a continuous mass and form because the proposed spacing between units are too small and will not be appreciable in all but front-on views. The reliance upon cantilevered elements to express articulation in places is said to be an inappropriate response.
67	This it says will result in unacceptable visual bulk impacts when viewed from the six neighbouring Atkins Street properties to the west which have backyard abuttals.
68	Concerns are also raised about the lift wall element of Unit 4 from the east boundary which does not achieve compliance with Standard B17.
69	The applicant submits that the proposal will present with sufficient levels of design detailing that assist in breaking up its mass so as to achieve an acceptable built form outcome.
70	In relation the Unit 4’s lift wall, it says the degree of non-compliance is minor and otherwise at a relatively benign interface that would cause no unreasonable visual impacts.
Tribunal’s findings
Side and rear setbacks
71	Aside from Unit 4’s lift wall setback from the east boundary, all other side and rear setbacks to the north, south and west boundary and those of Units 2 and 3 from the east boundary are fully compliant with Standard B17. The objective of this standard is therefore met in full for these aspects of the proposal. Building height is similarly compliant with Standard B7 whose objective is in turn also met.
72	In deciding whether the proposal will achieve an acceptable neighbourhood character and visual bulk response at its interfaces with neighbouring residential properties, I have again considered the non-codified Standards B1 and B31 and their decision guidelines as relevant in deciding whether their objectives are met.  
West interface
73	I agree with the council’s observations that the space between each of the units of about 1m to 2m is modest and will not be readily appreciable in oblique views. However, I find the design response to be acceptable in  the particular circumstances of this physical and strategic context. 
74	The physical context is one where 2-storey forms are common in backyard settings. The second storey setbacks of abutting lots to the west are typically larger from the boundaries of the review site than their counterparts at 12 Mortimer Street and 5 Annadale Street. This is due to the perpendicular lot orientation relative to the review site of the six Atkins Street lots to the west. By contrast, 12 Mortimer Street and 5 Annadale Street present with more compact side boundary setbacks.  The proposal strikes an acceptable balance in responding to the different setbacks of development on lots around the site and varied lot pattern.
75	The design responds acceptably to planning scheme directions for neighbourhood character including local policy at clause 15.01-5L  
76	The siting pattern, space for landscaping in the spaces around buildings between lots and articulated building forms are outcomes that are all achieved by this proposal. From the boundary, setbacks ranging from 3m to 5m are proposed at this interface providing suitable space for landscaping that will contribute to the sense of greenery and open feel. Between the proposed units, built form is separated at both ground and upper levels.  
77	Building forms are further articulated to reduce visual bulk impacts on adjoining properties through the use of different materials, wall planes including different geometric forms, surface alignments, and roof forms in a cohesive and well-considered manner. Varied floor levels are also proposed that step with the topography. These elements combined assist in providing vertical and horizontal relief for the full length of this elevation on its west side.
78	In assessing visual bulk, I have also considered available vantage points for neighbours on adjoining lots. Existing fences, dwellings, outbuildings and vegetation in each of the six neighbouring lots also serve to considerably constrain the extent to which the development can be viewed obliquely in its entirety as one continuous mass from any one of these neighbouring sites.
79	I find that the design is appropriately responsive to neighbouring site conditions at the west interface and, in the circumstances, will not present with unreasonable levels of visual bulk for neighbours.
East interface 
80	With the modifications that I have required to each of the lift wall elements for streetscape related reasons, I find that the design response at its eastern interface is acceptable.
81	In relation to Unit 4’s non-compliance with Standard B17, this is relatively minor and confined to one section of wall. The interface of Unit 4 to its nearest residential neighbour is not highly sensitive to the effects of development given the siting and type of windows and private open space areas.
82	When viewed from the private realm, and from a residential amenity and character perspective, I find that like the west elevation, the design treatment and articulation of the east interface is an acceptable one. 
North and south interfaces
83	Although not contentious, I record that I have considered the north and south interfaces which I have found are not particularly sensitive to the effects of the proposal. Having regard to the design response and neighbouring conditions, including existing and proposed setbacks, the extent to which Unit 4 is set at a lower level than existing ground level on its north side and its overall appearance including design detailing, the proposal will be acceptable at these two interfaces.
Conclusion
84	When assessed at its interfaces with surrounding lots, my overall conclusion on built form is that the proposal would achieve an acceptable and respectful neighbourhood character outcome without unreasonable visual bulk impacts for neighbours.  
85	The development will meet the Precinct 16 policy objective for neighbourhood character by respecting the suburban detached character.
86	I find that relevant clause 55 objectives are met, including neighbourhood character related objectives that correspond to Standards B1, B17 and B31 of clauses 55.02-1, 55.04-1 and 55.06-1.
landscaping acceptability
Issues
87	The council submits that the size of proposed canopy trees and number of them is insufficient. The amount of space around the development in deep soil is also said to be lacking. Particular concerns are raised with the design response along the west and east boundaries. The reliance on planting along the site’s perimeter is also said to be an unacceptable siting pattern for this context and would result in tree canopies overhanging neighbouring lots. 
88	The applicant relies on the evidence of Mr Atkinson in support of the proposed landscaping response. He supports minor design modifications to enhance space for root spread and water infiltration but otherwise concludes that the response is of a high quality that will enhance the amenity of the site and contribute positively to the area’s landscape character. 
Tribunal’s findings   
89	It is evident and not disputed that the existing landscape character is quite variable. Vegetation, including canopy trees are a more dominant feature in Mortimer Street than Annadale Street in both the public and private realms. 
90	Assisted by my inspections, I find that the proposed landscaping response, which also includes the retention of two established trees, is an acceptable one for this context. I do not share the council’s concerns that the number of new trees, the size of canopy trees, growing space for them and landscaping more generally is unacceptable.
91	In saying this, it is also relevant that there is no specific planning scheme guidance including numeric requirements about the size, number or definition of canopy trees or space required for them. There are, for example, no varied clause 55 requirements in the table to Schedule 1 of the NRZ for landscaping that might otherwise provide such guidance.   
92	I also accept Mr Atkinson’s evidence that planting in the private realm is frequently concentrated along the perimeter of lots and not always present in the setback space along the sides of lots between buildings and boundaries. 
93	I agree with the minor modifications suggested by Mr Atkinson in relation to the grading and design of pedestrian paving for water infiltration and the use of appropriate root sensitive footings (such as pier and beam rather than strip footings) for proposed above ground structures in the tree protection zones of existing trees for retention, and to supplement space for root exploration by new vegetation. 
94	Subject to permit conditions addressing these matters, I find that this proposal strikes an acceptable balance between the development opportunities of the site while achieving an acceptable landscape response for this particular context.  The proposal will provide a suitable vegetated setting and greenery that complements the built form and landscape character of the surrounding area.
95	I conclude that the proposal meets Standard B13 and the objective for landscaping at clause 55.03-8 as well as landscaping related guidance in local policy for precinct 16.
overshadowing of neighbouring private open space
96	In relation to overshadowing of existing secluded private open space (SPOS), Standard B21 is met and thus the objective is met for all surrounding residential properties except for 28 and 30 Atkins Street.
97	Both of these neighbouring properties have existing sunlight less than the numeric requirements of this standard. Thus, to meet Standard B21, the amount of sunlight they receive should not be further reduced.
98	Additional overshadowing to each of these neighbouring properties would occur in the morning until about 9:45am.
99	The council asserts that no additional overshadowing after 9am should be allowed. Particular reference is made to the extent of overshadowing caused by existing structures including the new boundary fence that has a combined height of approximately 2.7m with the addition of a lattice screen. This boundary treatment is now relied upon by the applicant to meet the overlooking objective and Standard B22.   
100	The applicant asserts that even with the additional overshadowing, the objective for Standard B21 is met and no further modifications are required to the plans.   
101	In making my findings and assisted by my inspection, I have considered submissions from the parties and  the decision guidelines set out at clause 55.04-5. The latter include the design response, amenity impacts, the proportions, location and utility of private open spaces and the amount of sunlight each presently receives. 
102	The total amount of SPOS surveyed is shown as 43.55sqm and 52.21sqm for No. 28 and 30 Atkins Street respectively. These are relatively modest spaces on narrow lots with widths of about 10m that support dwellings that are 2-storeys in scale. 
103	I have formed the view that the extent to which existing structures affect sunlight access in both the morning until 9:45am, and afternoon from 1pm is considerable, in the context of the modest size of secluded private open space areas, the nature of these spaces and the likely service and recreation needs of residents reliant upon them. Additional overshadowing after 9am would have unreasonable effects on the amenity and utility of these spaces. 
104	I will therefore include a condition generally in the form suggested by the applicant. This will require a reduction in the size of Unit 1 without a reduction in setbacks from boundaries so as to cause no reduction in existing sunlight access from 9am in relation to properties at 28 and 30 Atkins Street.
105	With this modification, I find that the corresponding objective will be met.
Are there any other issues?
106	A triangular portion of the site’s north-west portion is unfenced at its junction with the laneway. 

107	It is not relied upon as part of the private open space for Unit 4 but the practical benefit of this additional point of access for future occupants of Unit 4 is intended to be maintained.
108	While this is acceptable, details of the proposed surface treatment and any soft or hard landscaping in this area is to be provided on the landscape plans.
109	The parties agree that the new fencing and screen top lattice to site boundaries installed since the hearing will likely meet the numeric requirements of Standard B22 and the overlooking objective. These screening measures and sectional diagrams confirming their acceptability are to be included on the plans and will be required as a permit condition.
 What conditions are appropriate?
110	I have considered proposed permit conditions discussed at the hearing and further submissions made in response to my interim order.
111	Any changes to the  permit  conditions contained in Appendix A of this order reflect those discussions and submissions plus further consideration by the Tribunal.
112	I have also refined the formatting and wording of some conditions for grammatical reasons, consistency and the like, without changing their intent. For example, for clarity I have changed condition 8(j) so that it is now a stand-alone condition. It refers to the implementation of the Tree Management Plan. I have also corrected the description of the substituted plans in Condition 2.
113	A number of other matters about  permit  conditions were raised at the hearing. With respect to those matters or as a consequence of my further consideration of them, other than those already addressed above, I summarise my conclusions as follows.
114	The description of what the permit allows is amended by including reference to the construction of a front fence within 3m of a street.
115	I will include conditions requiring finished ground levels to be shown on the plans including within the areas of private open space of each dwelling.
116	The location and design of any stair structures between terraces to existing ground levels are to be shown and are to be designed to limit impacts on soft landscaping opportunities. 
117	The location, height and design of fencing/barriers along the perimeter of the basement ramp are to be shown.
118	Plan notations are to be included such that clotheslines are to be positioned and screened so as not to be visible from the street. 
119	I have amended the permit expiry condition by referring to the provisions of section 69 of the Planning and Environment Act 1987 (Vic) for consistency with the legislative framework.  
Conclusion
120	For the reasons given above, the decision of the responsible authority is set aside.  
121	A permit is granted subject to conditions.

Mary-Anne Taranto
Member			

Appendix A – Permit Conditions

Permit Application No	PP21/1191	
Land	1-3 Annadale Street
KEW VIC 3101	

What the permit allowS	
Construction of four dwellings on a lot and construction of a front fence within 3m of a street in the Neighbourhood Residential Zone – Schedule 1, in accordance with the endorsed plans.	

Conditions
1	Prior to the submission of Amended Plans pursuant to Condition 2, Development Stormwater Drainage Plans must be submitted to and approved by Council’s Asset and Capital Planning team (Drainage) the Responsible Authority. The plans must be prepared by a suitably Registered Professional Civil Engineer qualified engineer including:   
(a)	The use of an On-site Stormwater Detention (OSD) system;   
(b)	The connection to the Council nominated Legal Point of Discharge;   
(c)	The outfall drainage works necessary to connect the subject site to the Council nominated Legal Point of Discharge;   
(d)	The integration, details and connections of all Water Sensitive Urban Design (WSUD) features in accordance with the Sustainable Design Assessment (SDA) and STORM report and include drainage details as a result of landscaping;   
(e)	A properly prepared design with computations for the internal drainage and method of disposal of stormwater from all roofed areas and sealed areas; and
(f)	All drainage plans must show proposed trees to be planted in accordance with the landscape plan submitted with the application. 
2	Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  The plans must be drawn to scale with dimensions and an electronic copy provided (unlocked PDF).  When the plans are endorsed they will then form part of the permit.  The plans must be substantially in accordance with the amended plans described as “VCAT Substituted Plans” (REV C, dated 17 October 2023) including but modified to show:
(a)	The level of the driveway and apex of the crossover must be 150mm above the natural ground level at the legal point of discharge;
(b)	Deletion of the ‘stair’ symbol within the private open space of Unit 1 on TP08;
(c)	Schedule of materials and finishes, including swatch samples;
(d)	Pedestrian sight triangles to comply with the requirements of Clause 52.06 of the planning scheme;
(e)	The Tree Protection Zone and Structural Root Zone of Tree Nos. 5, 6, 7, 10, 11, & 12 as identified in the Arborist Report submitted with the application prepared by Tree Logic (dated 30/11/2022) drawn on all site and floor plans;
(f)	Notation on all site and floor plans that Tree Nos. 5, 6, 7, 10,11, & 12 are to be retained and protected in accordance with the endorsed Tree Management Plan required by this Permit;
(g)	Any modifications to the location or layout of buildings and/or works recommended in the endorsed Tree Management Plan required by this permit;
(h)	The siting of any necessary stormwater detention pit, underground services and pits, and/or rainwater harvesting tank to be located outside any area set aside for deep-soil planting and outside the Tree Protection Zone of any trees to be retained/protected;
(i)	Permanent fencing within the Tree Protection Zone of Tree 6, 7, 10, 11, & 12 constructed on pier foundations with any required plinths constructed above existing grade;
(j)	Ground floor plan to clearly show the setback, positioning and alignment of the front fence/gates along the Annadale Rd frontage;
(k)	Introduction of greater horizontal articulation to the lift wall elements of all four units at their second storey level generally in the central area between their floors and ceilings to moderate their vertical forms. This may comprise contrasting brickwork bands, patterns or forms to the satisfaction of the Responsible Authority; 
(l)	A reduction in the size of Unit 1 without a reduction in setbacks from boundaries so as to cause no reduction in existing sunlight access from 9am in relation to properties at 28 and 30 Atkins Street;
(m)	The height and details of all boundary fencing updated to reflect existing conditions, as shown in the Plan of Feature Survey prepared by JCA Land Consultants Drawing No. 2834014F1D  Rev 05 dated 30/02/2024;
(n)	Sectional drawings to confirm how overlooking is managed in accordance with Standard B22 for all elevated ‘alfresco’ areas, outdoor areas and habitable room windows;
(o)	Details of internal boundary fencing to a height of at least 1.7m above the outdoor surface abutting either side of such a fence;
(p)	Ground floor plan to include proposed finished ground levels including in the areas of private open space beyond the basement and footprint of each dwelling and within the Tree Protection Zones of existing trees to be retained;
(q)	The location and design of any stair structures between terraces to existing ground levels are to be shown on the plans and these are to be designed to limit impacts on soft landscaping opportunities; 
(r)	The location, height and design of any safety fencing/barriers along the perimeter of the basement ramp;
(s)	Plan notations stating that clotheslines are to be positioned and screened so as not to be visible from Annadale Street; 
(t)	A Landscape Plan in accordance with condition 5 of this permit;
(u)	A Tree Management Plan in accordance with condition 8 of this permit; and
(v)	Any changes required to the Sustainable Design Assessment.
Layout not to be altered 
3	The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.
Sustainable Design Assessment
4	Prior to the commencement of any buildings or demolition works, an amended Sustainable Design Assessment (SDA) must be submitted to and approved by the Responsible Authority. This SDA must be generally in accordance with the SDA submitted with the application, but amended to include the following:
(a)	Reference and assess the amended plans.
(b)	All dwellings to achieve a minimum NatHERS 6.5 star energy efficiency star rating.
(c)	Heating and cooling systems include a minimum 3 star energy efficiency rating.
(d)	Hot water systems include a minimum 5 star energy efficiency rating.
(e)	Water efficient fixtures and fittings include 4 star WELS toilets, 5 star WELS taps and 3 star WELS showerheads (≤ 7.5 L/min).
Once submitted and approved to the satisfaction of the Responsible Authority, the SDA will form part of the endorsed plans under this permit.
The requirements of the SDA must be demonstrated on the plans and elevations submitted for endorsement, and the requirements of this plan must be implemented by the dwelling owners and occupiers of the site when constructing and fitting out the dwellings and for the life of the dwellings in accordance with this permit, to the satisfaction of the Responsible Authority. No alterations to the SDA may occur without the written consent of the Responsible Authority.
Landscape plan
5	Concurrent with the endorsement of plans referred to in condition 2 of this permit, a landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the Responsible Authority. The plan must be generally in accordance with the plans prepared by Keystone Alliance Pty Ltd, dated 17 October 2023, Revision D, Sheets 1 of 2 and 2 of 2 drawn to scale with dimensions and an electronic copy provided (unlocked PDF).  When endorsed, the plan will form part of the permit. The landscape plan must show:
(a)	All relevant modifications required by condition 2 of this permit;
(b)	A survey (including botanical names) of all existing trees to be retained and of those to be removed. The intended status of the trees shown on the landscape plan must be consistent with that depicted on the development layout plan;
(c)	All trees must comply with Australian Standard AS2303:2015 - Tree Stock for Landscape Use;
(d)	All canopy trees must be planted by an AQF Level 3 Qualified Arborist, Landscape Gardener or Horticulturist;
(e)	Sand and gravel base for the pedestrian pathways beyond the proposed basement; 
(f)	The pedestrian walkway for Units 2, 3 and 4 graded or battered so as to drain towards the garden beds for the Pear trees; 
(g)	Details of the proposed surface treatment and any soft or hard landscaping in the triangular shaped portion of land in the north-west corner of Unit 4 abutting the laneway.
(h)	Modifications to the location or species of the two Capital Pear trees either side of the Bull Bay Magnolia in front of Unit 1 to limit competition between these trees, unless otherwise to the satisfaction of the Responsible Authority.
Completion of landscaping works
6	Landscaping as shown on the endorsed landscape plan/s must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.
Landscaping maintenance
7	All landscaping works shown on the endorsed landscape plan/s must be maintained and any dead, diseased or damaged plants replaced, all to the satisfaction of the Responsible Authority.
Tree Management Plan
8	Concurrent with the submission of amended plans required by condition 2 of this Permit and prior to any demolition or site works, a Tree Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The Tree Management Plan must be prepared by a minimum AQF Level 5 qualified and experienced Arborist in relation to the management and maintenance of Tree Nos. 6, 7, 10, 11, & 12 as identified in the Arborist Report submitted with the application prepared by Tree Logic (dated 30/11/2022). The Tree Management Plan must make specific recommendations in accordance with the Australian Standard AS4970: 2009 - Protection of Trees on Development Sites and detail the following to ensure that all retained trees remain healthy and viable during construction:
(a)	A Tree Protection Plan drawn to scale that shows:
(b)	Tree Protection Zones and Structural Root Zones of all trees to be retained; 
(c)	All tree protection fenced off areas and areas where ground protection systems will be used;
(d)	The type of foundations (illustration or notation) of all above ground structures (including fences) within each Tree Protection Zone to limit damage to existing root systems;
(e)	Any services to be located within the Tree Protection Zone and a notation to state that all services will either be located outside of the Tree Protection Zone, bored under the tree protection zone, or installed using hydro excavation under the supervision of the project arborist;
(f)	A notation to refer to the Tree Management Plan for specific detail on what actions are required within the Tree Protection Zone;
(g)	Details of how the root system of any tree to be retained will be managed. This must detail any initial non-destructive trenching and pruning of any roots required to be undertaken by the project arborist; and details of how any permeable surfaces within the Tree Protection Zone of retained trees will be constructed;  
(h)	Supervision timetable and certification of tree management activities required by the Project Arborist to the satisfaction of the Responsible Authority;
(i)	All remedial pruning works that are required to be performed on trees during demolition and development of the site. The pruning comments must reference Australian Standards 4373:2007 Pruning of Amenity Trees and provide a detailed photographic diagram specifying what pruning will occur. Note: Only Council or Authorised Council Contractors can prune Tree No. 12. Any request for the pruning of trees on public land must be made through Council’s Environmental Sustainability and Open Spaces Department;
9	The recommendations contained in the approved Tree Management Plan must be implemented to the satisfaction of the Responsible Authority and any changes to the endorsed Tree Management Plan will require written authorisation from the Responsible Authority.
Contractors to be advised of trees to be retained and protected
10	The owner and occupier of the site must ensure that, prior to the commencement of buildings and works, all contractors and tradespersons operating on the site are advised of the status of trees to be retained and protected as detailed in the endorsed Tree Management Plan and are advised of any obligations in relation to the protection of those trees. 
Regulation of activities in Tree Protection Zone
11	No vehicular or pedestrian access, trenching or soil excavation is to occur within the Tree Protection Zone as detailed in the endorsed Tree Management Plan without the prior written consent of the Responsible Authority. No storage or dumping of tools, equipment or waste is to occur within the Tree Protection Zone. 
Documentation and Certification by Project Arborist
12	Prior to the commencement of any site works, including demolition and excavation, the Responsible Authority must be provided with evidence that a project arborist has been engaged as part of the ongoing consultant team to oversee the design and construction, and to ensure the development does not have a detrimental impact on the ongoing health and stability of the trees to be retained. The project arborist must hold suitable qualifications and experience to the satisfaction of the Responsible Authority. Evidence of the appointment of the project arborist must be submitted to the satisfaction of the Responsible Authority (quoting the Planning Permit number and site address, emailed to Boroondara@boroondara.vic.gov.au) not less than seven (7) days before the commencement of works on site.
Drainage
13	The site must be drained to the satisfaction of the relevant building surveyor.
14	The owner must make an arrangement with Council for the provision of drainage and the acceptance of surface and stormwater from the subject land directly or indirectly into Council’s drainage system and a final inspection shall be carried out to determine the completion of drainage in accordance with the approved plans, to the satisfaction of the Responsible Authority.
15	No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Council's drains or watercourses during and after development, to the satisfaction of the Responsible Authority.
Vehicle crossovers
16	Any new vehicle crossover or modification to an existing vehicle crossover must be constructed to the satisfaction of the Responsible Authority.
Removal of redundant vehicle crossovers
17	All disused or redundant vehicle crossovers must be removed and the area reinstated with footpath, naturestrip, kerb and channel to the satisfaction of the Responsible Authority.
Expiry of permit for development
18	This permit ill expire if one of the following circumstances applies:
(a)	The development is not started within two (2) years of the issue date of this permit.
(b)	The development is not completed within four (4) years of the issue date of this permit.
In accordance with section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

– End of conditions –