VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P432/2024
Permit Application no.0659/22 	
CATCHWORDS	
Stonnington Planning Scheme; Heritage Overlay 146 (Rockley Road Precinct) in the Stonnington Planning Scheme; land adjacent to a Tram/Bus Priority Route on the Strategic Framework Plan at Clause 02.04 of the Stonnington Planning Scheme; the Yarra River corridor and policies at Clauses 12.03-1R and 12.03-1L of the Stonnington Planning Scheme; built form and landscape outcomes influenced by Schedule 3 to the Design and Development Overlay and Schedule 1 to the Significant Landscape Overlay in the Stonnington Planning Scheme.	

Applicant	125-127 Alexandra Avenue Pty Ltd	

Responsible Authority	Stonnington City Council	
Respondents	Suzy Chandler	
	Ilona J Miklosvary	

SUBJECT LAND	125-127 Alexandra Avenue
SOUTH YARRA VIC 3141	

HEARING TYPE	Hearing 	

DATE OF HEARING	4, 5 & 6 February 2025	

DATE OF ORDER	17 February 2025	

CITATION	125-127 Alexandra Avenue Pty Ltd v Stonnington CC [2025] VCAT 149	
Order
1	Pursuant to section 60A of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the following person now ceases to be a party to the proceeding:
Brian Hunter
2	Pursuant to clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998 (Vic), the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	Bayley Ward Architecture & Interiors	
•	Drawing numbers:	TP012, TP024, TP101 to TP106, TP151 to TP155, TP201 to TP204, TP301, TP302, TP601 to TP603, TP641 to TP644	
•	Dated:	26 July 2024 (Revision D)	
•	Prepared by:	John Patrick Landscape Architects	
•	Drawing numbers:	L VCAT01 to L VCAT05	
•	Dated:	July 2024	
3	In application P432/2024 the decision of the responsible authority is set aside.
4	In planning permit application 0659/22 a permit is granted and directed to be issued for the land at 125-127 Alexandra Avenue South Yarra VIC 3141 in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
Planning scheme clause	Matter for which the permit has been granted	

 32.08-7	Construct two or more dwellings on a lot	
 32.08-7	Construct or extend a front fence within 3 meters of a street	
 43.01-1	Demolish or remove a building	
 43.01-1	Construct a building or construct or carry out works	
 43.02-2	Construct a building or construct or carry out works	
 42.03-2	Remove destroy or lop vegetation	
 42.03-2	Construct a building or carry out works in a Significant Landscape Overlay	
 52.29-2	Create or alter access to a road in a Transport 2 Zone under Clause 52.29.	

Michael Deidun
Presiding Member		Lorina Nervegna
Member 	

Appearances
For 125-127 Alexandra Avenue Pty Ltd	Nicola Collingwood, Barrister instructed by David Passarella, Solicitor of Colin Biggers & Paisley
She called the following witnesses:
•	David Crowder, Town Planner of Ratio Consultants
•	Mark O’Dwyer, Architect and Urban Designer of H2O Architects
•	Katherine White, Heritage Consultant of Lovell Chen
•	Valentine Gnanakone, Traffic Engineer of One Mile Grid
•	John Patrick, Landscape Architect of John Patrick Landscape Architects
•	Kylie May, Arborist of John Patrick Landscape Architects
•	Kim Stapleton (visualisation) of Pointilism
As none of the other parties sought to cross examine Ms White, Mr Gnanakone, Ms May or Mr Stapleton, they were not called to give oral evidence	
For Stonnington City Council	Nick Crawford, Solicitor of TP Legal	
For Ilona J Miklosvary	No appearance	
For Suzy Chandler	Andrew Clarke, Town Planner of Clarke Planning appeared at the commencement of the hearing	

Information
Description of proposal	The construction of a four storey apartment building plus roof top decks 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. 	
Planning scheme	Stonnington Planning Scheme	
Zone and overlays	General Residential Zone 4
Heritage Overlay 146
Significant Landscape Overlay 1
Design and Development Overlay 3 and 6
Development Contributions Plan Overlay 1	
Permit requirements	Clause 32.08-7 to construct two or more dwellings on a lot, and to construct a front fence within 3 metres of a street, on land within the General Residential Zone
Clause 42.03-2 to construct a building or construct or carry out works, and to remove, destroy or lop vegetation on land to which the Significant Landscape Overlay applies
Clause 43.01-1 to demolish or remove a building (comprising a fence on the western boundary), construct a building or construct or carry out works on land to which the Heritage Overlay applies
Clause 43.02-2 to construct a building or construct or carry out works on land to which the Design and Development Overlay applies
Clause 52.29-2 to create or alter access to a road in a Transport Zone 2	
Relevant scheme policies and provisions	Clauses 02, 11, 12, 13, 15, 16, 18, 19, 32.08, 42.03, 43.01, 43.02, 45.06, 52.06, 52.29, 52.34, 53.18, 55, 65 and 71.02.	
Land description	The site is an irregular shaped allotment with a frontage of 21.15 metres to Alexandra Avenue, a sideage of 37.07 metres to a road that is used as a pedestrian accessway, and an overall area of 596 square metres.  The land is presently vacant.	
Tribunal inspection	The Tribunal inspected the site and surrounding area prior to the hearing, on 31 January 2025.	

  Reasons
What is this proceeding about?
1	125-127 Alexandra Avenue Pty Ltd (the ‘applicant’) seeks to review the decision of the Stonnington City Council (the ‘Council’) to refuse to grant a permit for an apartment development on land at 125-127 Alexandra Avenue, South Yarra (the ‘review site’).  
2	The Council’s grounds of refusal raise concerns with the impact of the vegetation removal, proposed built form and landscaping opportunities on the Yarra River corridor, amenity impacts on adjoining properties, and the appearance of the proposed front fence and services.  The Council also submits that the proposed development exceeds the mandatory maximum height limit.
3	A number of Statements of grounds have been lodged by nearby residents, including by three parties to the proceeding (the ‘respondents’).  One of the three respondents is Mr Hunter.  The Tribunal’s order dated 29 August 2024 contained the following order.
Brian Hunter’s role in this proceeding 
5 	Brian Hunter submitted a second statement of grounds on 14 August 2024 that states he does not want to participate in this proceeding but wishes his statement of grounds to be considered.  To date, no order has been given by the Tribunal removing Mr Hunter as a party (albeit that is the normal course of action).  Mr Hunter responded to the adjournment request that he believes he is no longer a party to the above matter, but ‘will clarify my status on return’ from overseas on 20 September 2024.  By no later than 4pm on Friday 27 September 2024, Mr Hunter must advise the Tribunal and the other parties in writing whether he wishes not to participate as a party as indicated in his second statement of grounds.   
4	Mr Hunter has not sent any correspondence to the Tribunal since the order of 29 August 2024.  Mr Hunter appeared at the hearing as an observer, and sought leave to withdraw as a party to the proceeding.  We will therefore remove Mr Hunter as a party to this proceeding.  Mr Hunter’s most recent Statement of grounds raises two concerns, being whether parts of the proposed roof deck contravene the height limit, and the setback of the proposal from trees along the southern boundary of the review site.
5	Another of the respondents is Ms Chandler, who entered into a consent order request with the applicant prior to this hearing.  That consent order request sets out an agreed set of permit conditions, and sets out the following consent positions.
B 	Subject to the above conditions being included in any planning permit that may issue Suzy Chandler does not oppose the grant of a planning permit in P432/2024.
C 	The parties understand that VCAT and the parties expert witnesses are not bound by this agreement. However, no party will do anything to undermine this agreement during the course of the hearing.
6	The final respondent is Ms Miklosvary.  Ms Miklosvary’s Statement of grounds is set out below.
The Proposal exceeds the maximum height limits as set by the Responsible Authority
The Proposal will adversely effect the amenity of the adjacent heritage listed walkway which provides connection between Rockley Rd and Alexander (sic) Avenue
The Proposal roof gardens and spa will result in unreasonable overlooking
The height and bulk of the proposal does not allow sufficient space for mitigating vegetation
7	Since the lodgement of this Statement of grounds, amended plans have been circulated which remove the proposed changes to the walkway between Rockley Road and Alexandra Avenue.  Ms Miklosvary did not file a submission prior to the hearing, nor did she appear at the hearing.
8	The issues or questions for determination are:
a	Does the proposed building exceed the mandatory height limit?
b	Is the proposal an appropriate response to the heritage place?
c	Is the proposal an appropriate response to the surrounding context?
d	Will there be any unreasonable off-site amenity impacts?
e	Does the proposal provide an appropriate level of internal amenity?
f	Does the proposal appropriately provide for car parking and traffic movements?
9	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Stonnington Planning Scheme, we have decided to set aside the Council’s decision, and direct the grant of a planning permit subject to conditions.  Our reasons follow.

Does the proposed building exceed the mandatory height limit?
10	The review site has a 13 metre mandatory height limit which applies under both Schedule 4 to the General Residential Zone (GRZ4), and Schedule 3 to the Design and Development Overlay (DDO3).  As the land is liable to inundation, in accordance with Clause 32.08-11 of the Stonnington Planning Scheme the height limit under GRZ4 is taken from the finished floor level stipulated by Melbourne Water, which is 5.35AHD.  As such, the mandatory height limit under GRZ4 is 18.35AHD.  In difference, under DDO3 the height limit is not adjusted to account for the fact that the land is liable to flooding, and so the 13 metre height limit is measured from the natural ground level as it varies across the review site.  The plans that are before us helpfully mark out both height limits that apply under GRZ4 and DDO3.  At all locations, the plans demonstrate that the parapet of the proposed building is under both height limits, but that there are various structures on the roof, including planter boxes, that are above one or both of the height limits.  All of these are agreed facts as between the Council and the applicant.
11	The observation above that the parapet of the building is below both height limits is important, due to the following definition of building height that is found at Clause 73.01 of the Stonnington Planning Scheme.
The vertical distance from natural ground level to the roof or parapet at any point.
12	The Council makes the following submission regarding the height of the building.
8.32.	The Proposal nominates the building height of 12.85m measured to the front parapet (see North elevation (TP 201)). 
8.33.	Council does not dispute that the ‘planter’ sits atop the roof. This is demonstrated in the section drawings (see, for example, Section AA on TP301) show the planters sitting on top of the roof of Level 3.
8.34.	It is Council’s position that the planter envelops the roof space save for a small gap centrally at the southern end as evident in the ‘snips’ of the elevations below. The planter boxes are permanent and solid structures that forms part of the building. They read as a parapet in their own right. They show a consistent built form to all elevations with a small setback from the edge of the roof level below.
8.35.	It is acknowledged that if the planters were viewed as ‘architectural features’ of the building, or a ‘roof top structure’, they would be excluded from the ‘building height’ and the Proposal would not exceed the permissible ‘building height’. 
8.36.	Council maintains the position that the planters read as the parapet of the building. They have a uniform and modest setback from the measured edge of the roof below parapet and they do themselves present as the parapet of the building. As stated by the Tribunal in Prahran Orrong Park Developments Pty Ltd v Stonnington CC [2017] VCAT 1021 [at 56] the matter is ultimately to be considered as one of fact and degree having regard to the specific roofed element.
13	We are not persuaded by these submissions, and instead find that the proposed development complies with the two mandatory maximum building height limits.  We make this finding for the following reasons.
14	The applicant helpfully drew our attention to the decision of Aitken Properties Pty Ltd v Hobsons Bay CC [2016] VCAT 1484, where the following reasons are set out by Deputy President Dwyer.
[14] 	Contrary to a view expressed by the Council and some objectors, I do not consider that there is any inconsistency in the definitions of ‘building’ in the P&E Act and ‘building height’ in the planning scheme. The first assists in determining what comprises a building — primarily for the purpose of the general application of planning controls for ‘buildings and works’. The second assists in determining how building height is calculated — primarily for the purpose of the application of mandatory and discretionary height controls. They are related but different concepts for planning purposes. Accordingly, although a building (as defined) includes any rooftop service installations, the height of the building is calculated from ground level to the roof or parapet, and the height calculation thus excludes service installations or other elements above the roof or parapet.
[15] 	As a matter of general principle, this outcome is also one of practicality and common sense, and accords with common planning practice. The height of a building, particularly for planning assessment purposes, is essentially concerned with the primary built structure. It would be impracticable and incongruous for building height to be determined, for example, by reference to a television antenna sited on the rooftop. I agree with the permit applicant that building heights are simply not measured on such a basis. The definition of ‘building height’ is clearly intended to avoid such an anomalous outcome, and references the upper measurement point as being the roof or parapet, rather than the antenna that sits above the roofline. 
[16] 	I consider that the same applies to other common service installations, such as a lift overrun, water tanks, heating or cooling units, or solar panels. Although some of these service installations are perhaps a little larger in size, there is no difference in principle. The definition of ‘building height’ still references the upper measurement point of the building as being the roof or parapet, rather than the service installation above. 
[17] 	However, the situation may be different for a structural element above the main roofline that contains its own roof, such as a canopy over a rooftop terrace, or an enclosed and roofed stairwell structure providing access to the roof, or a large plant room within which other service elements are housed. The definition of ‘building height’ references the vertical distance to ‘the roof ... at any point’, and may therefore include the highest point of any material roofed element. This is perhaps a contextual issue that I do not need to finally resolve here. 
[18] 	Of the specific structures or service installations mentioned in the question of law (lift overrun, water tanks, screening and solar panels), the one that could potentially create the greatest level of debate in this regard is the lift overrun. The lift overrun is perhaps more a part of the main physical structure of the building, rather than the other service installations such as water tanks or solar panels that are more in the nature of an appurtenance to the building. In the ordinary case, there is still ultimately no real difference in principle given that the definition of ‘building height’ still references the upper measurement point of the building as being the roof or parapet. It may nonetheless be the case that a particular lift overrun is of such a size or nature or type of construction, or housed in such a way, that it should be treated as a roofed element in its own right, such that the definition of ‘building height’ should be referenced to the vertical distance to the roof of that element. Again, this is a contextual issue having regard to the plans for a particular development. It is also primarily a question of fact for the Tribunal as constituted, rather than a question of law for me.
[19] The outcome I have set out above means that, in the ordinary case, service installations above the roofline are not included in the calculation of building height for the purposes of determining whether a building meets a mandatory or discretionary height limit under a planning scheme. That does not mean that any planning impacts of the service installations are completely excluded from assessment. For example, although some service installations are exempt from a permit requirement in some circumstances, by reference to clause 62 of all VPP-based planning schemes, there may be other circumstances where the location or visual impact of a particular service installation is relevant to an overall planning assessment of whether a building should be permitted and/or whether the service installation should be relocated or conditioned in some way. 
15	We concur with this reasoning, and the simple conclusion that in most circumstances, the correct approach will be to measure building height to the roof or parapet of a building, and to not include elements above that roof or parapet, unless they can be treated as roofed elements in their own right.  
16	The decision of Aitken Properties Pty Ltd v Hobsons Bay CC [2016] VCAT 1484 has been followed and applied in subsequent decisions of this Tribunal.
17	In applying this methodology to the plans that are before us, it is agreed between the parties that the parapet of the proposed building complies with both of the mandatory height limits that apply to the review site.  The dispute is in relation to the proposed planter boxes that are proposed to surround the roof decks.  We find that the proposed planter boxes do not contribute to the defined height of the building as:
a	The proposed planter boxes are not a roofed element.  
b	As conceded in the Council’s written submissions, the planter boxes sit atop the roof, and therefore do not contribute to an understanding of the height of the roof of the building.
c	The planter boxes are also not a parapet as they are set back from and are separate from the defined parapet to the building.  They also have a different material and colour from the parapeted walls of the building.
d	The planter boxes are properly considered as a rooftop element, complementing the roof top deck and balustrading that are all commonly understood to not contribute to the defined height of a building.
e	The planter boxes either won’t be seen, or won’t be visually apparent, from many locations in the public realm.  As such, the planter boxes are not of such a size or design as to warrant a different approach to the one that we have set out in these reasons.
18	For these reasons we find that the proposed building complies with the mandatory height limits that apply to the review site.
Is the proposal an appropriate response to the heritage place?
19	The review site is vacant of any building, however a permit is sought to demolish a fence.  A permit is also required under the Heritage Overlay for the proposed building and works.  Under the provisions of the Heritage Overlay, we are to have regard to the following decision guidelines.
•	The Municipal Planning Strategy and the Planning Policy Framework.
•	The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.
•	Any applicable statement of significance (whether or not specified in the schedule to this overlay), heritage study and any applicable conservation policy.
•	Any applicable heritage design guideline specified in the schedule to this overlay.
•	Whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage place.
•	Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place.
•	Whether the demolition, removal or external alteration will adversely affect the significance of the heritage place.
•	Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.
20	It is evident from these decision guidelines that an appropriate starting point is an understanding of the significance of a heritage place.  The review site forms a part of a precinct called the Rockley Road Precinct.  The review site forms one of two parcels that do not have a frontage to Rockley Road, but rather are included in the precinct due to their side abuttal to a pedestrian path that provides access between Rockley Road and Alexandra Avenue.  This is identified on the map below extracted from the evidence of Ms White.

21	According to the evidence of Ms White, the statement of significance for this heritage place is as set out below.
The Rockley Precinct is significant for:
•	For the manner in which it illustrates the process of the transformation of the 1840s estates along the river between Chapel Street and Williams Road into a prestigious residential area
•	For the topography which inspired the paintings of Charles McCubbin
•	For the manner in which the 1937 Como Park Estate responded to Alexandra Avenue and how Melbourne’s new attraction to the river created a new urban identity
•	The unique subdivision design, especially the linking of Rockley Road with Alexandra Avenue by means of a pedestrian walkway
•	The landscaping of the walkway which adopts an approach to urban design that has more in common with harbour-side Sydney suburbs of this era
•	The contribution of the landscape of the escarpment to the character of the walkway
•	The high quality and diverse architectural character, principally examples of the inter-war and pre-First World War period which reflect the history of the development and subdivision of Little Rockley, both through the consistent residential character dating from the 1908 Howey Estate, and the more diverse character resulting from Como Park Estate
•	The contribution of noted designer and landscaper Eric Hammond, architect Verner Fick, architect and developer Howard Lawson, and the influence of Edna Walling
•	For the informed patronage of Clara Strang and H H Henderson and the occupancy by noted graphic designer Gert Selheim
•	The unusual residential character comprising detached houses, semi detached houses and flats set on large garden allotments with mature landscaping, especially those on the on the [sic] escarpment
•	The enclosing avenue of Planes which links the Toorak Road parkland entry to the significant portion at the northern end of Rockley Road
•	The overall scale and width of the street, and the position of the urban conservation area on the crest of a hill.
22	Ms White gave evidence regarding the potential impacts of the proposed development on the review site, on the heritage place.  The following is set out in the written evidence of Ms White.
The physical separation of the site from the main component of the heritage precinct and difference in levels between the cliff top and Alexandra Avenue ensure that the new building will not be visible in the context of Rockley Road and will have no impact on the character and appearance of the significant and contributory buildings within the cul-de-sac.
The heritage concern with the redevelopment of the subject property, as identified in the Delegates Report/Notice of Decision and the statements of grounds to the matter, relate specifically to the removal of landscaping along the walkway, loss of amenity along the walkway and the removal of stone retaining walls along the southern boundary of the site.
The amended scheme has removed all works proposed within the walkway, including the removal of landscaping, and seeks to retain the stone walls along the southern boundary of the site. In relation to the amenity of the walkway, the landscaped character will be maintained and a further 1m setback to the new building will provide a greater opportunity for landscaping along the eastern boundary. The retention of fabric along the walkway and the existing stone walling is a positive heritage outcome, while the greater setback to the new building provides physical and visual separation to maintain the landscaped character of the walkway. Importantly, the contribution that the walkway makes to the significance of the Rockley Road Precinct (HO146) will be maintained and the proposed redevelopment of the site will not result in an adverse impact on the heritage place.
23	Having regard to this evidence, we are persuaded as to the following:
a	The proposal will not be able to be viewed in a streetscape view of Rockley Road, and therefore will have no impact on the character and significance of the part of the heritage place that comprises properties fronting Rockley Road.  
b	The amended plans now protect the heritage fabric and the landscaping within the walkway that connects Rockley Road with Alexandra Avenue.
c	While the proposed development will be highly visible from the walkway that connects Rockley Road with Alexandra Avenue, the form and scale of development that abuts the laneway is not referenced in the Statement of significance for this heritage place.  Further, the positioning of the walkway within the reservation, and the setbacks within the review site, will together provide a generous setback between the pedestrian walkway and the proposed building on the review site.
d	We agree with the finding of Ms White that the contribution that the walkway makes to the significance of the heritage place will be maintained.
e	We also agree with the response from Council’s own heritage advisor, who finds that, “The proposal raises no heritage concerns.”
24	For these reasons we find that the proposed development of the review site is an appropriate response to the heritage place, and the decision guidelines set out in the Heritage Overlay.
Is the proposal an appropriate response to the surrounding context?
25	The review site sits in a context where there are somewhat competing policy aspirations for this land.  These competing policy aspirations can be summarised as follows:
a	The land is identified as being located along a Tram/Bus Priority Route on the Strategic Framework Plan at Clause 02.04 of the Stonnington Planning Scheme.  As a result, the review site is a location to which policy at Clause 02.03-5 directs higher density residential development, and a location where policy at Clause 16.01-1L-01 directs the majority of new residential development.  This policy theme is supported by broader housing policy at a State, Regional and local level that encourages the achievement of urban consolidation in locations proximate to a range of services and facilities.  As the review site is a short distance from the South Yarra Activity Centre, its location aligns with these policy aspirations.
b	In complete contrast, as the review site is covered by a Heritage Overlay, policy at Clause 16.01-1L-01 identifies the review site as within a Minimal Change Area.  The Building design policy at Clause 15.01-2L-01 and the Preferred Neighbourhood Character Policy at Clause 15.01-5L also provide guidance as to the character outcomes anticipated in this location.
c	The review site is immediately opposite the Yarra River and within the Yarra River corridor.  Policy at Clauses 12.03-1R and 12.03-1L provide guidance as to the preferred outcomes in the corridor, which are neatly summarised by the following Strategy from Clause 12.03-1L.
Minimise the visual intrusion of buildings beside waterways to protect the visual amenity of the waterway and associated trails and green spaces.
26	The last of these three policy themes is supported by the application of two overlays to the review site and surrounding land.  The review site falls within Schedule 1 to the Significant Landscape Overlay (SLO1), which applies to the Yarra (Birrarung) River corridor environs.  SLO1 contains a number of decision guidelines, including the following that are particularly relevant to the dispute that is before us.
Whether buildings and works are sufficiently set back from the banks of the Yarra River to ensure that:
•	…
•	That views of development from the Yarra River and adjacent public open space, bicycle and shared paths and bridge crossings are minimised.
…
Whether buildings will protrude above the predominant tree canopy within a given area.
…
Whether the scale, form, siting and design of new buildings, including materials, colours and finishes, are sensitively integrated with the natural landscape setting of the river corridor.
Whether the spacing between buildings allows for the planting of appropriate vegetation and canopy trees to filter views of the development.
Whether the existing and proposed vegetation fronting the Yarra River will filter the majority of views of the proposed development.
27	In addition, the review site is covered by Schedule 3 to the Design and Development Overlay (DDO3), which applies to the Yarra (Birrarung) River corridor.  DDO3 contains the following Design objectives.
To ensure new buildings, tennis courts, swimming pools and other structures are appropriately set back from the banks of the Yarra River and adjacent public open space. 
To ensure buildings are presented at a variety of heights, avoid visual bulk, are stepped back from the frontage of the Yarra River and adjacent public open space and use colours and finishes which do not contrast with the natural landscape setting. 
To avoid additional light spill and overshadowing from buildings on the banks and water of the Yarra River, its adjacent public open space, pedestrian and bicycle paths. 
To ensure sufficient space is provided between buildings to maintain views to the Yarra River and allow for the planting and growth of vegetation, including large canopy trees. 
To minimise impervious surfaces to allow for the filtration of water and retention and establishment of vegetation and canopy trees.
28	DDO3 also contains the following decision guidelines.
Before deciding on an application, the responsible authority must consider as appropriate: 
Landscape protection 
•	The visibility of any proposed buildings and works when viewed from the Yarra River and adjacent public open space, pedestrian and bicycle paths and bridge crossings. 
•	Whether sufficient space is provided between buildings to maintain views of the Yarra River and allow for the planting and growth of vegetation, including large canopy trees. 
•	Whether the siting of buildings and works avoids the removal of existing riparian vegetation. Whether any earthworks will affect public views of the river corridor. 
•	The need for additional landscaping or new vegetation screening to filter views of proposed buildings and works. 
Siting and design 
•	…
•	Whether the location, bulk, outline and appearance of any proposed building or works are in keeping with or enhance the natural landscape character and appearance of the Yarra River. 
•	The appropriateness of proposed materials and finishes for any proposed buildings and works in reducing contrast. 
Site coverage and permeability 
•	The need to minimise impervious surfaces to allow for filtration of water and retention and establishment of indigenous vegetation and canopy trees. 
•	The need to limit areas, (including tennis courts and swimming pools) and other impervious surfaces within the minimum setback distance specified in a table to this schedule to allow for replanting and vegetation growth. 
•	Whether adequate spacing is provided between buildings to maintain and create views to the Yarra River and its corridor.
29	The Council makes the following submissions as to the effect of these policies and provisions on the proposed development of the review site.
8.6. 	Whilst the plans have been amended through the Council process, and now through the PNPE9 process, the assumptions that underpin the original design response have not been revisited. This has meant that the revisions have ‘tinkered at the edges’ and not cut into the building to the degree that is required to produce an acceptable or an appropriate outcome. The DDO and the Scheme policies and SLO send a strong and clear message that new development must: 
•	Provide lower site coverage and higher permeability, and to limit impervious surfaces to allow for filtration of water and retention and establishment of indigenous vegetation including large canopy trees (DDO3 clauses 1.0, 2.0 and 6.0, clause 15.01-5L); 
•	Provide room around the building for the retention of and/or planting of substantial canopy trees and to maintain and create views to the Yarra River and its corridor, and to allow for the planting and growth of vegetation including large canopy trees (DDO3 clause 6.0, SLO1 clause 5.0, clause 15.01-5L); and 
•	Provide a building in keeping with or enhancing the natural landscape character and appearance of the River, (DDP3 clause 6.0, SLO clause 5.0, clause 15.01-5L).
8.7. 	The DDO3 sets a site coverage of impervious surfaces of 40% of the lot area as a requirement that should be met (ie. 60% permeability). The application materials 26.4% permeability with a site coverage of 63.8%. This is a significant departure from the outcome sought by the DDO3. The DDO3 is a relatively recent control (certainly for approvals along this stretch of road) and it is appropriate that a new development should meet the standard…
8.8. 	The Land is similarly exposed to the River as a result of the bus stop and furniture, fire hydrant, turning area and walkway creating an open presentation to Alexandra Avenue and the River corridor opposite. The Landscape plan shows a Jacaranda and a crepe myrtle either side of the pedestrian entry. The largest tree, a Yellow Gum, is located between the basement ramp and side boundary behind the services cupboard. None of these aspire to the height of the building. 
8.9. 	Mr Stapelton’s V1 and V3 in particular show who the building will sit proud in the River Corridor. The proposed landscaping to the sides is minimal and will not ameliorate the visual impact of the Proposal. The building will not sit below the predominant canopy height and it will present as a large form that does no minimise the visual intrusion of buildings when viewed from the river environs. It is achieving an outcome similar to 119 Alexandra. This is not an outcome the Scheme controls today are seeking.
30	We are not persuaded by the Council’s submissions and instead find that the proposal is an appropriate response to its context, and the guidance provided by the Stonnington Planning Scheme.  We make this finding for the following reasons.
31	Firstly we need to address and resolve the policy conflict in the Stonnington Planning Scheme, regarding the identification of this location as a preferred one for higher density housing (as encouraged by the zone, DDO3 and supporting policy) and as a minimal change area (as supported by the Heritage Overlay and supporting policy).  Clause 71.02-3 of the Stonnington Planning Scheme sets out the integrated decision making approach that must occur when presented with such conflicting policy objectives, as set out below.
Victorians have various needs and expectations such as land for settlement, protection of the environment, economic wellbeing, various social needs, proper management of resources and infrastructure. Planning aims to meet these needs and expectations by addressing aspects of economic, environmental and social wellbeing affected by land use and development.
The Planning Policy Framework operates together with the remainder of the scheme to deliver integrated decision making. Planning and responsible authorities should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations…
(our emphasis)
32	There is a clear and quantifiable benefit associated with the provision of modern additional and more diverse housing in this well serviced location.  That additional and diverse housing will provide accommodation to present and future generations of Victorians, in a highly desirable location.  In contrast, the failure to provide for a minimal level of change on the review site will not be a weighty disbenefit, as the proposed scale of development will not have a negative impact on this heritage place, or the character of this neighbourhood.  We make those findings, and choose to place more weight on those policies and provisions that encourage a high level of housing to be achieved on the review site, for the following reasons:
a	The Council’s policies encouraging higher density housing in certain locations is a very well resolved and targeted policy, that identifies individual neighbourhoods and properties as being identified for different levels of increased housing, through various schedules to the residential zones.  The review site and neighbouring properties to the west are a very small collection of properties that abut Alexandra Avenue which have been placed in Schedule 4 to the General Residential Zone (GRZ4), and therefore identified for their potential to accommodate four storey residential development.  Given the targeted and refined nature of these provisions and supporting policies, we consider that they should be given significant weight.
b	The context of nearby existing development along Alexandra Avenue would also support a four storey residential development on the review site as a harmonious and consistent element of the existing context and neighbourhood character.
c	We support the contextual reasons that have resulted in the identification of the review site as being appropriate for more intensive housing, namely the access to a wide range of services and facilities, not the least of which are the bus route along Alexandra Avenue, the higher order activity centre at South Yarra and the linear open space along the Yarra River.
d	While the review site is within a precinct based heritage overlay, the review site sits outside the primary area of that precinct, and for reasons set out above the significance and character of that precinct do not restrict the future development of the review site.  Therefore, the application of a minimal change area policy to the review site on the basis of the Heritage Overlay, does not make sense in the context of this heritage place.  That is, a minimal change in built form on the review site is not necessary to achieve an outcome where there is no impact on the significance and character of the heritage place, given the unusual relationship between the review site and the remainder of the heritage place that is centred around Rockley Road.
33	Secondly, we find that the proposal is an appropriate response to the character of the surrounding neighbourhood.  We make that finding having regard to the height and scale of the proposed development, which is consistent with others along the southern side of Alexandra Avenue, as well as the range of setbacks, which are consistent with those found in more recent development within the GRZ4 area.  The modern architectural style, expressed balconies to the front façade, basement car parking, and large levels of glazing are also character elements that reflect the existing neighbourhood character in this locale.  
34	In response to the Preferred Neighbourhood Character policy at Clause 15.01-5L of the Stonnington Planning Scheme, we find that the proposal is an appropriate response to the general guidance for the municipality, as well as the more specific guidance for this Garden River Precinct, for the following reasons.
a	The proposal is consistent with the preferred scale of the area, and does not dominate the streetscape;
b	The proposal will strengthen the garden setting, noting that only one tree that is an environmental weed and which is of poor health currently exists on the land, and the previously existing building was sited immediately adjacent to the front boundary with no to little intervening landscaping.  As such, there is no loss of front garden space, and indeed the proposal will result in a significant increase in visible front garden space;
c	The proposal represents an innovative architectural style that contributes to the landscaped setting of the Yarra River, as we explore later in these reasons;
d	The proposed development reflects the undulating topography, and cleverly incorporates the changing levels into the overall building design;
e	The proposed development avoids boundary to boundary development, and will result in a reduction in hard surfaces on the site’s frontage that is visible from the Yarra River corridor;
f	For reasons that follow, we accept the evidence of Mr Patrick that the proposal provides adequate space around the building for a suitable landscaping response, that strengthens the garden setting;
g	The car parking is contained in a basement that is suitably designed; and,
h	Most of the site’s frontage will be open and devoid of fencing, and the western side of the frontage will have an open style front fence, at a height similar to that found elsewhere in this streetscape.
35	Thirdly, we also find that the proposal is an appropriate response to the context and guidance provided by the Yarra River corridor, and the various policies and provisions that apply in this corridor.  During our site inspection we traversed the Main Yarra Trail along both sides of the Yarra River, as well as the footpath in front of the review site.  It is our observation that this is a context where built form on the southern side of Alexandra Avenue, fronting the Yarra River corridor, is consistently of three to four storeys in height (or taller), and may be visible from the Main Yarra Trail depending on intervening vegetation.  While vegetation provides a high level of screening of most built form (while the deciduous trees are in leaf), we observed that most of the screening effect is provided by vegetation in the public realm, which is only sometimes supplemented by limited planting in the private realm.
36	The review site is located at a point where vegetation in the public realm is more sparse.  That is a result of the location of a bus stop and large areas of hard paving in front of the review site, which has limited the opportunity for street tree planting.  It is also a result of a narrowing of the planting area between the Main Yarra Trail on the southern side of the Yarra River, and Alexandra Avenue.  That break in the existing vegetation has the effect of opening up views from the Main Yarra Trail to the review site and surrounding properties.  As one example of the existing effect of this break, it exposes the higher built form on the property to the south-west of the review site.
37	The Council is critical of the balance of built form and landscaping opportunities at ground level across the review site, and how this responds to the provisions and policies for the Yarra River corridor.  We find that the balance of built form and landscaping that is proposed for the review site is consistent with that found elsewhere along this part of the Yarra River corridor, and is capable of achieving the outcomes sought by policies and provisions for the Yarra River corridor that are set out earlier in these reasons.  We make this finding based on the extent of landscaping that is proposed within the review site, however this is further enhanced by the applicant proposing to removing some of the hard paving in the road reserve in front of the review site, and replacing it with a large Plane Tree.  This hard paving that is proposed to be removed, currently provides for turning movements from the review site, and will not be required for the proposed development of the review site given the ability for all vehicles to enter and exit the proposed basement in a forward direction.  This existing hard paving area in the public realm is captured on the following photo provided by Council.

38	The proposed planting of a Plane Tree in the road reserve in front of the review site will, over time, provide a significant screening effect to the proposed built form on the review site.  We make this finding having observed the screening effect provided by the existing Plane Trees along Alexandra Avenue.  While a new street tree will take some time to reach a mature height, we consider it appropriate to have regard to the future screening effect provided by the planting of a new street tree.  
39	The proposal has a series of setbacks and landscaping opportunities that can complement planting in the public realm, to achieve the outcomes sought by the policies and provisions for the Yarra River corridor set out earlier in these reasons.  In the front setback Mr Patrick proposes the planting of five canopy trees that will range in height between 6 and 12 metres at maturity.  While these are not tall trees, they will assist to screen the front façade that is under 13 metres in height, and will complement the taller trees found in Alexandra Avenue.  
40	We note that the final decision guideline in SLO1 sets out the following:
Whether the existing and proposed vegetation fronting the Yarra River will filter the majority of views of the proposed development
41	We note that this decision guideline only seeks vegetation to filter the majority of views.  For the reasons set out above, we find that the majority of views from the Main Yarra Trail, and other locations in the Yarra River corridor, will have views filtered by existing and proposed vegetation.  In contrast to the Council’s position, we do not consider that all views from every location should have views to all of the proposed built form filtered by vegetation, as we do not consider that the Stonnington Planning Scheme is advocating for this outcome.  
42	We also note that the proposed landscaping on the review site is an improvement on both the existing site condition, and on the previous form of development of the land, where there was limited to no landscaping within the front setback.  This is depicted on the photograph of the previously existing building on the review site, taken from the evidence of Mr O’Dwyer (noting that the low level landscaping shown in the foreground to this building appears to be within the road reserve).  For these reasons we find that the proposal achieves those policies and provisions that seek new development to enhance the landscaping within the Yarra River corridor.

43	For these reasons we support the proposed mix of built form, setbacks and landscaping within the front setback of the review site.
44	We acknowledge that there is limited space to each side boundary for the planting of new vegetation.  To the eastern boundary this is an appropriate approach, as any new vegetation would compete with the mature vegetation in the adjacent walkway reserve.  We consider the limited side boundary setbacks and landscaping opportunities do not compromise the landscape outcomes encouraged in the Yarra River corridor, as the view that is available from the Main Yarra Trail is primarily framed by vegetation in the public realm, that does not allow views past the front façade of the development on the southern side of Alexandra Avenue.
45	To the western boundary a narrow setback that matches the setback on the adjoining property to the west and the side setbacks found on other nearby sites, is proposed.  We acknowledge that the 1.6 metre setback proposed to the western boundary will not allow canopy vegetation to be established along this boundary, but will allow a clipped hedge to a height of 4.0 metres.  We consider that to be an appropriate approach in this part of the Yarra River corridor, noting the robust nature of the existing built form, the higher density housing that policy directs to this location, and the dominance of vegetation in the public realm that characterises this locality.
46	We also note that both DDO3 and SLO1 apply to locations more diverse than this location where policy directs higher density housing.  They also apply to other suburban locations to which policy does not direct higher density housing.  In the context that applies to the review site, it is appropriate to read and apply the guidance from both DDO3 and SLO1 and related policies, in a manner that acknowledges the other policy encouragement for the review site.  In this context, we consider that the encouragement for the achievement of higher density housing on a confined site in a robust environment, gives weight to limiting the expectations for side boundary setbacks that allow the establishment of new canopy vegetation.  In effect, we agree with the oral evidence of Mr Crowder, when he opines that you need to look at the aspirations regarding landscaping in side boundary setbacks, in the context of what else is encouraged in this locality.
47	Finally, the Council is critical about the extent of permeable ground that is proposed on the review site, at 20.4%, and how far this falls short of the 60% permeability requirement that applies under DDO3, which can be varied with the grant of a planning permit.  We find that the proposed level of permeability on the review site is appropriate for the following reasons:
a	The Design objectives at DDO3 set out that permeable land is sought, “to allow for the filtration of water and retention and establishment of vegetation and canopy trees.”  In respect of the filtration of water, we note that the proposal intends to collect and re-use rainwater, thus effectively creating a level of runoff associated with a development with a much higher level of permeability.  We also note that that the extensive planter boxes on the roof of the building effectively adds to the permeable areas of the site, without formally adding to the calculation of permeability.
b	In respect of the retention of vegetation and canopy trees, there are none to be retained on the review site, as the only existing tree is an environmental weed at the far corner away from the interface with the Yarra River, which has poor health and a life expectancy of 5 years or less.  Further, for the reasons set out earlier in this decision, we find that the proposal will establish an appropriate level of new landscaping.
c	As set out above, the proposal will reduce the extent of hard paving that currently exists in the public realm, thus increasing permeability and reducing runoff.
d	The 60% permeable land requirement applies to a wide range of contexts along the Yarra River corridor, including on properties that have a rear abuttal directly to the Yarra River, where such a requirement would be appropriate to ensure the achievement of a large landscaped setback to the Yarra River.  However, this requirement is appropriately varied in a location such as this review site, where policy also directs higher density housing, and a development can reduce runoff through rainwater collection and reuse.  In short, we agree with the following extract from the written evidence of Mr Crowder.
182. 	Requiring a maximum of 40% impervious surfaces (ie - 60% site permeability), or anything close to this, on this site and in this location would be an illogical outcome given the existing character of the area and the clear policy support for urban consolidation in this locale. The more relevant consideration, in my opinion, is are whether the bulk, size and massing of the development will dominate the visual appearance of the area and make an appropriate landscape contribution relative to its specific context along this section of the Yarra River corridor. For the reasons outlined above and below, I believe the proposal achieves this.
48	For these reasons we find that the proposal is an appropriate built form and landscaping response to the surrounding context, and the guidance provided by the Stonnington Planning Scheme.
Will there be any unreasonable off-site amenity impacts?
49	The Council originally had two grounds that raise concerns with a range of off-site amenity impacts.  In its written submission, the Council withdrew most of those grounds, leaving a concern regarding the height and setback of the proposed building from the western side boundary of the review site.  Ms Chandler has an interest in a property that adjoins the rear boundary review site, but as set out earlier in these reasons, Ms Chandler no longer opposes the grant of a planning permit, subject to the inclusion of certain permit conditions.
50	Turning to the one issue in dispute, we acknowledge that the proposal does not comply with Standard B17 as measured from the western side boundary.  Indeed, it does not come close to complying, as demonstrated on the Section below that is taken from the amended plans.

51	Instead of the tiered setback arrangement advocated for by Standard B17, the plans that are before us propose a consistent 1.6 metre minimum setback to all four levels from the western boundary of the review site.  While this setback is consistent, the overall height of the western elevations varies considerably due to the steep topography on the review site, as set out in the following extract from the elevations.

52	We are persuaded by the evidence of Mr Crowder that despite the large level of non-compliance with Standard B17, that the proposal achieves the Side and rear setbacks objective and also achieves appropriate amenity outcomes for the adjoining property to the west.  We make this finding for the following reasons.
a	The review site is in a location where policy directs higher density housing.  While it is possible for higher density housing to also comply with Standard B17, such a policy encouragement means that there needs to be different expectations of visual bulk impacts, than might be the case in the residential hinterland.
b	The review site is within a context of buildings fronting Alexandra Avenue that generally defy Standard B17, and present as upright built forms in close proximity to the side boundaries.  That is likely to be the case as people attempt to maximise the available views to the Yarra River corridor.  Indeed, the proposed building on the review site generally seeks to replicate the setbacks currently provided on the adjoining property across the western boundary.  The nature of the surrounding pattern of development is a relevant consideration where the side and rear setbacks objective references the existing and preferred neighbourhood character.
c	The preferred character for the Garden River precinct at Clause 15.01-5L seeks to avoid boundary to boundary development, and achieve space around buildings to accommodate trees and vegetation, but is otherwise silent as to the manner in which side boundary setbacks contribute to the preferred built form character.  The proposal avoids development to the side boundaries above natural ground level, and for the reasons set out elsewhere in this decision, the proposal provides for appropriate landscaping opportunities.
d	The abutting property to the west is developed with two side by side dwellings.  The property that sits adjacent to the review site has a primary outlook to the front and rear of that site.  The only windows that face the review site comprise:
i	A secondary window to a living area that has its primary outlook to the north;
ii	Windows to the dining room that is open to the aforementioned living area; 
iii	A window to a kitchen which has a dual aspect to the rear;
iv	A secondary window to a master bedroom that has its primary outlook to the north;
v	Windows to a second bedroom and adjacent bathroom;
vi	A secondary window to a study that has its primary outlook to the south.
e	As such, there are very few rooms with a sole aspect towards the review site.  Further, many of the windows on the adjoining property to the west are sited well above natural ground level, as depicted on the photograph below.  Indeed, the only rooms with a sole aspect towards the review site are the second bedroom and bathroom which are on the second floor, which sit effectively around 2.5 storeys above the natural ground level.  As such, the visual bulk effect of the proposed four storey building on the review site is reduced, when viewed from the elevated viewing locations in this second bedroom and bathroom.
f	In addition, the areas of secluded private open space on the adjoining property to the west do not have a clear view towards the proposed development on the view site.  As such, we consider that the proposal will not result in any unreasonable levels of visual bulk on the adjoining property to the west.

53	Turning to other relevant matters, we are persuaded by the evidence of Mr Crowder that the proposal will not result in unreasonable levels of overshadowing, loss of daylight or overlooking to the residential properties that surround the review site.  
54	For these reasons we find that the proposal will not result in any unreasonable off-site amenity impacts.
Does the proposal provide an appropriate level of internal amenity?
55	None of the parties raise any concerns in relation to the level of internal amenity to be enjoyed by the future residents of the proposed apartments.  
56	The applicant submits that the proposal meets the best practice requirement for ESD, with the amended plans assessed as achieving a BESS score of 52%, down from 58% in the original application. The Tribunal had questions regarding the ‘Energy’ component of the assessment, which shows that it fails to meet the ‘pass’ score in this category. Mr O’Dwyer says it is possible that an error has occurred in preparing the score and does not see why the development can’t meet a 7 star NatHERS rating, and a BESS Energy Thermal Performance rating of at least 50%, thus passing the score in this category. We are satisfied that these can be satisfactorily incorporated in the endorsed plans and documentation and will require these by way of a permit condition.   
57	We also find as a result of our own assessment that the proposal will achieve an appropriate level of internal amenity for future residents.  We make this finding having regard to the sizes of the individual rooms and the overall apartments, their ability to receive daylight and sunlight access, the areas of secluded private open space, the level of convenient access to both car parking and storage, and the level of access that will be enjoyed to surrounding services and facilities.
Does the proposal appropriately provide for car parking and traffic movements?
58	Besides the original Statement of grounds filed by Ms Chandler, who now does not oppose the grant of a planning permit, none of the parties raise any concerns in relation to the provision of car parking and traffic movements associated with the proposed development of the review site.
59	Car parking and traffic evidence was provided by Mr Gnanakone.  It is his evidence that the proposal complies with the car parking and bicycle parking requirements set out in the Stonnington Planning Scheme.  As such, no permit is required to vary either the provision of car parking or bicycle parking.
60	In terms of traffic movements, it is the evidence of Mr Gnanakone that the proposal will generate in the order of 3 vehicle movements in the peak hour, or an average of one vehicle every 20 minutes.  As the review site has direct access to a higher order road, this very low level of traffic will be able to be accommodated on the surrounding road network.
61	Finally, Mr Gnanakone has also reviewed the proposed layout of car parking and access areas, and come to the following conclusion, which we support from our own analysis.
•	The proposed passing area located within the verge of Alexandra Avenue will not have an impact on passing pedestrians or the operation of Alexnadra Avenue, and is considered appropriate;
•	The car parking layouts and accesses have been designed generally in accordance with the requirements of the Planning Scheme and are considered appropriate;
•	The ramp grades within the site have been designed in general accordance with the requirements of the Planning Scheme and are considered appropriate;
•	The design and provision of the car stackers are considered appropriate;
•	The design and provision of bicycle parking is in accordance with the Planning Scheme Requirements;
62	We also note that both Council’s traffic engineers and the Department of Transport and Planning have both undertaken an independent and expert review of the relevant car parking and traffic issues, and that neither authority opposes the grant of a planning permit.
63	For these reasons we find that the proposal will appropriately provide for car parking and traffic movements.
Are there any other issues?
64	The statements of grounds lodged in respect of this proceeding raise two additional matters which we have not addressed to date in these reasons.
65	Mr Hunter’s Statement of grounds raises concerns regarding the setback of the proposal from the existing trees to the south of the review site.  The evidence of Ms May addresses these trees in unusual detail, and that evidence was not challenged by any of the parties to the proceeding.  We are persuaded by the evidence of Ms May that the trees to the south of the review site will be retained, and draw further confidence by the comprehensive permit conditions that have been drafted by the Council and the applicant on this very topic.  
66	Ms Miklosvary raises a concern regarding potential overlooking from the roof top open space areas.  These rooftop areas are well setback from the parapet to the building, such that an angled view could not be gained from any rooftop trafficable area to a neighbouring area of open space or habitable room window within 9.0 metres of the review site.  On this basis we are satisfied that Standard B22 is achieved, and therefore must find that the relevant objective is also achieved and there will be no unreasonable levels of overlooking.  
What conditions are appropriate?
67	A small number of other matters about permit conditions were raised by the parties.  With respect to those matters, other than those already addressed above, the final form of conditions in Appendix A to this decision reflect what we find to be an appropriate wording of conditions.  
68	There is one matter that deserves more of an explanation.  We have not been persuaded by the Council that the applicant should be required to undertake specific works in the walkway that is adjacent to the review site.  The Council is responsible for any works on their land, and while the applicant has indicated that they may be willing to work with the Council on this land, we see no reason why permit conditions should be applied requiring the applicant to undertake certain works on the Council land.  That is particularly the case here where the proposal does not gain direct access from the Council walkway.
Conclusion
69	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Michael Deidun
Presiding Member		Lorina Nervegna
Member	

Appendix A – Permit DESCRIPTION AND Conditions
Permit No	0659/22	
planning scheme	Stonnington Planning Scheme	
responsible authority	Stonnington City Council	
address of the land	125-127 Alexandra Avenue
SOUTH YARRA VIC 3141	
the permit allows:
Planning scheme clause	Matter for which the permit has been granted	

 32.08-7	Construct two or more dwellings on a lot	
 32.08-7	Construct or extend a front fence within 3 meters of a street	
 43.01-1	Demolish or remove a building	
 43.01-1	Construct a building or construct or carry out works	
 43.02-2	Construct a building or construct or carry out works	
 42.03-2	Remove destroy or lop vegetation	
 42.03-2	Construct a building or carry out works in a Significant Landscape Overlay	
 52.29-2	Create or alter access to a road in a Transport 2 Zone under Clause 52.29.	
Conditions to apply to the permit:
1	Before the commencement of the development, 1 copy of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the VCAT Amended Plans (known as: sheets TP101 rev D,  TP102 rev E, TP103 rev D, TP104 rev D, TP105 rev D, TP106 rev D, TP201 rev D, TP202 rev D, TP203 rev D, TP204 rev D, TP301 rev D, TP302 rev D, TP601 rev D, and TP603 rev C, all dated 26.07.24, and prepared by Bayley Ward) but modified to show:
(a)	The retention of trees identified as Trees No. 10, 11 and 12.
(b)	The removal of the hard paving in the road reserve in front of the review site, that is associated with the vehicle turning area that accompanied the former driveway to the review site, and the planting of a Plane Tree in this location (note that the turning area for the driveway at 123 Alexandra Avenue must be retained, as per the conditions required by the Department of Transport and Planning).
(c)	Corrected height line depicting the maximum height above the Melbourne Water minimum finished floor level on plans TP301 and TP302.
(d)	Plans to clearly identify all permeable surfaces.
(e)	Details of lighting to the pedestrian accessway to the building.
(f)	Relevant door openings dimensioned in accordance with the Accessibility Objective at Clause 55.07-8 of the Stonnington Planning Scheme.
(g)	Notations to confirm the headroom clearance at the garage door.
(h)	A revised landscape plan in accordance with Condition 4.
(i)	A Tree Management plan in accordance with Condition 7. 
(j)	A revised Sustainability Management plan in accordance with Condition 8.
(k)	A revised Waste Management plan in accordance with Condition 12.
(l)	Any modifications in accordance with conditions from the Head, Transport for Victoria (Conditions 27-37).
(m)	Any modifications in accordance with the conditions from Melbourne Water (Conditions 38-44). 
(n)	The rock retaining wall along and inside the southern boundary of the site retained with a new timber paling fence inserted on the northern side of the rock retaining wall to a height of at least 1.2m above the top of the rock retaining wall.
(o)	Full compliance with Standard B17 to the southern boundary for all parts of the building including roof related landscaping retaining structures.  This is to be confirmed via sectional drawings cut on an axis perpendicular to the southern boundary.
(p)	The rear paved and timber deck courtyards accessed from the master bedrooms for Units 3 and 4 reduced in size to be no more than 10m2 each with all deleted space converted to an expanded rear landscaping bed at natural ground level.
(q)	Unit 3 rear/south facing ensuite window repositioned to its western wall with a 1700mm sill height.
(r)	Unit 3 rear/south facing bedroom door leading to the courtyard to have its glazed elements lifted to 1700mm above floor level or be obscure glass if lower or fitted with fixed external horizontal louvres of not less than 200mm in depth and spaced not less than 200mm apart.
(s)	Unit 4 rear/south facing ensuite window to have a 1700mm sill height.
(t)	Unit 4 rear/south facing bedroom door leading to the courtyard to have its glazed elements lifted to 1700mm above floor level or be obscure glass if lower or fitted with fixed external horizontal louvres of not less than 200mm in depth and spaced not less than 200mm apart.
(u)	South facing windows on any level in the rear staircase deleted or converted to obscure glass.
(v)	Unit 6 rear/south facing ensuite and bedroom windows obscure glazing height raised to 1700mm.
(w)	Those parts of the building where material BR1 (brick – light tone) is nominated to be modified to a darker tone of grey brick.
(x)	Location of trellises and/or wires to guide creepers on the southern façade as required by the landscape plan.
All to the satisfaction of the Responsible Authority. 
2	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.
3	Prior to the endorsement of plans, a revised landscape plan to be prepared by a landscape architect or suitably qualified or experienced landscape designer, must be submitted to and approved by the Responsible Authority.  When approved, the landscape plan will be endorsed and will then form part of the permit.  The landscape plan must be drawn to scale with dimensions. The landscape plan must be in accordance with the landscape plan submitted with the VCAT Amended Plans (Landscape Concept Plans prepared by John Patrick, dated 25.07.24) But modified to show:
(a)	The planting of a Plane Tree in the road reserve in front of the review site at a height of between 2.0 and 2.5 metres at the time of planting, to replace the vehicle turning area that accompanied the former driveway to the review site.
(b)	All changes arising from Condition 1 of the permit.
(c)	The two garden bed areas on the roof south of the lift over-run to have a soil depth of at least 800mm and contain dense native planting with a mature height of at least 3m.
(d)	An additional Eumundi tree to 5m in mature height planted into the rear setback of both Unit 3 and 4 arising from the reduced rear paved courtyard sizes.
(e)	The provision of creepers within those parts of the southern landscaping area abutting with the southern façade of the building.
(f)	The position of climbing trellises and/or wires to guide the creepers up both stories of the southern boundary with an allowance for positioning around windows as required.
(g)	The soil mix for planter boxes or other containers to be determined by a soil scientist to achieve the most appropriate mineral soil composition for the identified plant species.
(h)	The removal of Yucca Elephantipes (Giant Yukka) from the plant species schedule 3.
4	Prior to the occupation of the development, a landscape maintenance plan prepared by a suitably qualified person must be submitted to satisfaction of the Responsible Authority. When approved, the landscape plan will be endorsed and will then form part of the permit. The plan must address:
(a)	Ongoing maintenance obligations, including access arrangements such as hook-on points where appropriate for safe access;
(b)	The identification of any maintenance measures that are to be implemented by suitably qualified professionals;
(c)	The growing medium to be used within the planters, which must be suitable for raised planters and mineral based;
(d)	The provision of drip irrigation to all planter boxes;
(e)	Periodic servicing and maintenance of irrigation equipment;
(f)	The periodic replacement of any dead or diseased plants;
5	Only the minimum amount of pruning necessary for construction purposes shall occur to any tree overhanging the southern boundary of the site and all pruning shall be done by a qualified arborist all to the satisfaction of the Responsible Authority. 
6	Prior to the commencement of the use / occupation of the building, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.  Landscaping must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
7	Prior to the endorsement of development plans a Tree Management Plan prepared by a suitably qualified arborist must be submitted to and approved by the Responsible Authority.  When approved, the Tree Management Plan will form part of this permit and all works must be done in accordance with the Tree Management Plan (AS 4970). The Tree Management Plan must detail measures to protect and ensure the viability of the trees to be retained, n accordance with the report prepared by Kylie May of John Patrick Landscape Architects, dated December 2024. Among other things, the Tree Management Plan must include the following information:
(a)	Pre-construction (including demolition) – details to include a tree protection zone, height barrier around the tree protection zone, amount and type of mulch to be placed above the tree protection zone and method of cutting any roots or branches which extend beyond the tree protection zone. A plan must be submitted detailing any tree protection fencing, where the fencing is clearly identified and dimensioned.
(b)	During-construction – details to include watering regime during construction and method of protection of exposed roots.
(c)	Post-construction – details to include watering regime and time of final inspection when barrier can be removed and protection works and regime can cease.
(d)	Suitable measures to ensure that Trees No. 10, 11 and 12 and Group 9 (in the adjacent walkway to the east of the site) are retained.
(e)	Tree protection and construction details arising from Ms May’s report, including:
i	The retention of soil levels within the TPZ of Trees 4, 5, 6, 7 and 8.
ii	Built form is to be cantilevered or sensitive construction methods adopted for trees 5, 6, 7, 8 and 12. 
iii	Branch E3 of tree 6 to be retained through the use of sensitive construction methodology.
iv	Pruning of trees to be undertaken by a suitably qualified arborist in accordance with AS4373-2007 Pruning of amenity trees.
v	Measures to tie back upper branches of tree 7 during construction if practicable.
Pre-construction works and any root cutting must be inspected and approved by the Responsible Authority's Parks Unit. Removal of protection works and cessation of the Tree Management Plan must be authorised by the Responsible Authority's Parks Unit.
8	Prior to the endorsement of plans pursuant to Condition 1, a Sustainable Management Plan (SMP) must be submitted to and approved by the Responsible Authority. When approved, the SMP will be endorsed and will form part of the permit. The SMP must be generally in accordance with the SMP prepared by MAC Engineering Solutions dated 21 April 2022 but modified to include:
(a)	Reference to the current layout depicted in the plans to be endorsed pursuant to Condition 1
(b)	Additional notations on the plans clarifying rainwater tank connection and WSUD measures. 
(c)	All changes necessary to achieve a NatHERS rating of at least 7 stars. 
(d)	A BESS Energy 1.2 Thermal performance rating of at least 50%.
(e)	The development must be all-electric and achieve zero-carbon operation.
(f)	Confirm provision of a site-specific construction Waste Management Plan with a target recycling rate of 80% of construction waste.
(g)	Infrastructure (Junction Box / Power point) in the garage to accommodate infrastructure for charging electric vehicles in the future.
(h)	The inclusion of a heat pump hot water system in each dwelling. 
(i)	No gas connections to the development. 
All proposed sustainable design initiatives must be shown and notated on the Condition 1 plans. Any amendments to the SMP must be incorporated on the Condition 1 plans. No alterations to the SMP may occur without the written consent of the Responsible Authority. 
9	The development must incorporate the Sustainable Design Initiatives detailed in the endorsed plans and Sustainability Management Plan to the satisfaction of the Responsible Authority.
10	The development must incorporate the Water Sensitive Urban Design initiatives detailed in the endorsed site plan and/or Water Sensitive Urban Design Response to the satisfaction of the Responsible Authority.
11	Prior to commencement of the development (including excavation and demolition), a tree protection fence must be erected around the two High Street street-trees. Fencing is to be compliant with Section 4 of AS 4970. Signage identifying the need for approval from Council’s Parks Unit for any root cutting (prior to it occurring) must also be displayed on the fence.
12	Prior to the endorsement of plans, a revised Waste Management Plan must be submitted to and approved by the Responsible Authority.  When approved, the Waste Management Plan will be endorsed and will then form part of the permit.  The Waste Management Plan must be generally in accordance with the Waste Management Plan prepared by Traffix Group, dated April 2023 but modified to include:
(a)	Allocations for glass bins for future Council services. 
(b)	The responsible role for bringing the bins back to the building promptly after collection must be specified.
(c)	A note specifying the responsible role for booking hard waste collection for the building. 
13	Waste collection from the development must be in accordance with the Waste Management Plan, to the satisfaction of the Responsible Authority. 
14	Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority’s consent.
15	All utility services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority by completion of the development.
16	The level of the footpaths and/or laneways must not be lowered or altered in any way to facilitate access to the site.
17	Prior to occupation of the building or commencement of the use, any existing vehicular crossing made redundant by the building and works hereby permitted must be broken out and re-instated as standard footpath and kerb and channel at the owner/developer’s cost to the approval and satisfaction of the Responsible Authority.
18	Prior to the occupation of the building, screening (not adhesive film) designed to limit overlooking as required by Standard B22 of Clause 55.04-6 and as shown on the endorsed plans must be installed and maintained to the satisfaction of the Responsible Authority thereafter for the life of the building.
19	All fixed plant and equipment (including air-conditioning units) must be located and screened to visually integrate with the development. The location and design of the screening, including the height, colour and material must be shown on the endorsed plans to the satisfaction of the Responsible Authority.
20	Prior to a building permit being issued, a report for the legal point of discharge must be obtained from Council and a drainage design for the development must be prepared by a Registered Professional Civil Engineer (VIC) in accordance with all ‘recommendations’  and requirements contained in that report.  All drainage must be by means of a gravity-based system and not pumped, with the exception of runoff from any basement ramp and agricultural drains which may be pumped. The relevant building surveyor must check and approve the drainage design and ensure that protection of the building is provided from a 1 in 100 A.R.I. rainfall event as required by the Building Regulations. 
21	Prior to the commencement of works a detailed plan and design prepared by a Registered Professional Civil Engineer (VIC) for the driveway and other works outside the property in Alexandra Avenue, must be completed and approved by Council. The works must be completed in accordance with the approved plan under the supervision, and to the satisfaction of Council
22	Prior to an ‘Occupancy Permit’ being issued, a Registered Professional Civil Engineer (VIC), must carry out a detailed inspection of the completed stormwater drainage system and associated works including all water storage tanks and detention (if applicable) to ensure that all works have been constructed in accordance with the approved design and the relevant planning permit conditions. Certification of the completed drainage from the Engineer must be provided to Council prior to a ‘Statement of Compliance’ being issued for the subdivision.
23	The owner must at their cost provide a stormwater detention system to restrict runoff from the development to no greater than the existing runoff based on a 1 in 10 A.R.I. to the satisfaction of Council’s Infrastructure Unit. Alternatively, in lieu of the stand-alone detention system, the owner may provide stormwater tanks that are in total 2,500 litres greater than those tanks required to satisfy WSUD requirements for the development. Those tanks must be connected to all toilets. 
24	Prior to the issue of a building permit, a Development Infrastructure Levy must be paid to Stonnington City Council pursuant to Schedule 1 to the Development Contributions Plan Overlay of the Stonnington Planning Scheme and the approved Stonnington Municipal-Wide Development Contributions Plan (2020-2040), January 2023. The levy amount payable will be annually adjusted on 1 August each year in accordance with the Consumer Price Index (CPI) and calculated at the time of payment.
25	Prior to the issue of a building permit, a Community Infrastructure Levy must be paid to Stonnington City Council pursuant to Schedule 1 to the Development Contributions Plan Overlay of the Stonnington Planning Scheme and the approved Stonnington Municipal-Wide Development Contributions Plan (2020-2040), January 2023. The levy amount payable will be annually adjusted on 1 August each year in accordance with the Consumer Price Index (CPI) and calculated at the time of payment.
26	This permit will expire if one of the following circumstances applies: 
(a)	The development is not started within two years of the date of this permit. 
(b)	The development is not completed within four years of the date of this permit. 
In accordance with Section 69 of the Planning and Environment Act 1987, a request may be submitted to the Responsible Authority within the prescribed timeframes for an extension of the periods referred to in this condition.
Head, Transport for Victoria Conditions
27	Prior to the endorsement of plans, amended plans must be submitted to and approved by the Head, Transport for Victoria. When approved by the Head, Transport for Victoria, the plans must be endorsed by the Responsible Authority and will then form part of the permit. The plans must be modified to show:
(a)	The access driveway and turning circle, adjacent Number 125 and number 123 Alexandra Avenue, is required to be retained. This must also be reflected on the landscape plan.
(b)	The passing bay located within the nature strip is to be dimensioned.  The minimum dimensions required is 5.2m x 6.2m wide.
(c)	Assign tandem spaces to dwellings.
(d)	The outer edge of the crossover must be setback a minimum 1m from the outer circumference of the light pole and sign.
28	The crossover, access driveway and turning circle, adjacent Number 125 and Number 123 Alexandra Avenue is required to be retained.
29	Prior to the occupation of buildings and/or works the crossover and driveway are to be constructed to the satisfaction the Responsible Authority and at no cost to the Head, Transport for Victoria. 
30	Prior to occupation of buildings and/or works the access lanes, driveways, crossovers and associated works must be provided and available for use and be:
(a)	Formed to such levels and drained so that they can be used in accordance with the endorsed plans.
(b)	Treated with an all-weather seal or some other durable surface.
Driveways must be maintained in a fit and proper state so as not to compromise the ability of vehicles to enter and exit the site in a safe manner or compromise operational efficiency of the road or public safety. 
31	The edge of the crossover must be setback 1m from the outer circumference of the light pole and sign, and any other obstructions.
32	All vehicles must always enter and exit the site in a forward direction.
33	Any security boom, barrier, gate, or similar device controlling vehicular access to the site is not permitted.
34	Bins must be stored on nature strip the night before collection and be generally in accordance with Waste Management Plan G318464-OLD, dated 21/10/2022.
35	The demolition and construction of the development must not disrupt bus operations Alexandra Avenue without the prior written consent of the Head, Transport for Victoria.
36	Any request for written consent to disrupt bus operations on Alexandra Avenue during the demolition and construction of the development must be submitted to the Head, Transport for Victoria not later than 8 weeks prior to the planned disruption.
37	During demolition and construction of the development, the existing bus stop infrastructure on Alexandra Avenue must not be damaged or altered. Any damage or alteration to bus infrastructure must be rectified at no cost to and to the satisfaction of the Head, Transport for Victoria.
Melbourne Water Conditions
38	Finished floor levels of the ground floor building must be constructed no lower than 5.35 metres to Australian Height Datum (AHD). 
39	The basement entrance / exit must incorporate a flood proof apex and associated bunding constructed no lower than 5.35 metres to Australian Height Datum.
40	The building must be setback a minimum of thirty metres measured from the ‘top of the bank’ of the Yarra River. 
41	Prior to commencement of construction a Site Environmental Management Plan (SEMP) must be submitted to Melbourne Water for approval, specifying relevant actions in a practical way to ensure that they are implemented effectively. The SEMP must include a site map detailing the location and design of all measures including the following:
(a)	Silt fencing
(b)	Access tracks 
(c)	Spoil stockpiling
(d)	Trenching locations
(e)	Machinery / Plan locations
42	Any new front fence must be design and constructed as ‘open style’. A minimum of 50% of construction of timber paking to allow for the conveyance of overland flow. 
43	Any new or modified stormwater connection to Melbourne Water’s drainage system must obtain separate approval from Melbourne Water’s Asset Services Team. 
44	Prior to the issue of an Occupancy Permit, a certified survey plan, showing finished floor levels (as constructed) reduced to the Australian Height Datum, must be submitted to Melbourne Water to demonstrate that the floor levels have been constructed in accordance with Melbourne Water’s requirements. 
– End of conditions –