VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST	vcat reference Nos. P2189/2018 & P2412/2018
	
CATCHWORDS	
Section 80 and 82 Planning and Environment Act 1987; Relevance of previous Tribunal decision; Relevance of heritage; Equitable Development; Visual bulk; Overlooking.	

APPLICANTs
P2189/2018
P2412/2018	
Greg Deakin and Others
Cookson Street Pty Ltd	
responsible authority	Boroondara City Council	
RESPONDENTs
P2189/2018
P2412/2018	
Cookson Street Pty Ltd
Marie Connolly C/- Kay Horgan, Greg Deakin, Mary Drost, Rene Dedoncker and Janine Bennett, Corporate Body 18780 31 Cookson Street, Camberwell, Paul Junor, Douglas J Gale	
SUBJECT LAND	15-23 Cookson Street
CAMBERWELL  VIC  3124	
WHERE HELD	55 King Street, Melbourne 	
BEFORE	Teresa Bisucci, Senior Member
Ann Keddie, Member	
HEARING TYPE	Hearing	
DATEs OF HEARING	6 – 9 May 2019	
DATE OF ORDER	17 June 2019	
CITATION	Deakin v Boroondara CC [2019] VCAT 873	

Order
Amend permit application 
1	Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting, the following plans filed with the Tribunal:
•	Prepared by: 	DKO Architecture (Vic) Pty Ltd	
•	Drawing numbers:	TP300-310, TP600-608 all Revision B 	
•	Dated:	26/03/2019	
Permit granted
2	In applications P2189/2018 & P2412/2018 the decision of the responsible authority is varied.
3	In planning permit application PP17/01389 a permit is granted and directed to be issued for the land at 15, 17 and 19-23 Cookson Street, Camberwell in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Construction of a six-storey building; 
•	Use of the land for dwellings;
•	Reduction in the car parking requirements associated with a shop, food and drinks premises and dwelling visitors; 
in accordance with the endorsed plans.

Teresa Bisucci 
Senior Member 		Ann Keddie
Member	

Appearances
For Greg Deakin & Others	Mr Greg Deakin, in person	
For Boroondara City Council	Mr David Song, Town Planner, of Song Bowden	
For Cookson Street Pty Ltd	Ms Susan Brennan SC with Ms Emily Porter of Counsel instructed by Minter Ellison Lawyers.  They called the following witnesses:
•	Mr Brodie Blades
•	Mr Stuart McGurn
•	Mr Jim Gard’ner
•	Ms Charmaine Dunstan
They relied upon the written evidence of Mr Chris Goss	
For Marie Connolly	Ms Kay Horgan	
For Mary Drost	Mrs Mary Drost, in person	
For Rene Dedoncker and Janine Bennett	Ms Rene Dedoncker and Ms Janine Bennett, in person	
For Paul Junor	Mr Paul Junor, in person	
For Douglas Gale	Mr Douglas Gale, in person	

Information
Description of proposal	Buildings and works for a seven-storey building comprising dwellings, shop and food and drink, use of land for dwellings and reduction in parking requirements.	
Nature of proceeding	Application under section 80 of the Planning and Environment Act 1987 – to review the conditions contained in the decision to grant a permit.
Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.	
Planning scheme	Boroondara Planning Scheme	
Zone and overlays	Commercial 1 Zone, Parking Overlay, Schedule 1	
Permit requirements	Clause 34.01-4, Clause 45.09-4 and Clause 52.06	
Relevant scheme policies and provisions	Clauses 11, 11.03-1S, 11.03-1R, 15, 15.01-1S, 15.01-2S, 15.01-4S, 16, 16.01, 16.01-2S, 17.02, 18, 21.01, 21.05, 21.07    	
Land description	The land is located on the north side of Cookson Street, opposite the Camberwell Railway Station.  It comprises three parcels of land with a frontage to Cookson Street of 27.43 metres and a depth of 36.58 metres.  The overall site area is 996 metres squared.  The land has three road frontages, comprising Cookson Street and two laneways; a laneway located along the western boundary (western laneway) and a laneway along its northern boundary (northern laneway).  The land has a cross fall from the north-west to the south east of approximately 3 metres.  The land described as 19-23 Cookson Street is vacant whereas 15 Cookson Street is developed with a single storey building.  Car parking is currently provided to 15 Cookson Street to the rear and is accessed via a laneway.  Number 17 Cookson Street is developed with a double storey building.  	
Tribunal inspection	Unaccompanied of surrounds and accompanied for 2 Holly Street, Camberwell on 7 May 2019. 	

Reasons
What is this proceeding about?
1	There are two applications before us concerning a proposal for a seven-storey building on land at 15, 17 and 19-23 Cookston Street, Camberwell (land).  
2	The first is an application under section 82 Planning and Environment Act 1987 (Act) brought by several residents against the decision of the Boroondara City Council (Council) to issue a Notice of Decision to Grant a Planning Permit (NOD).  The second application is brought by the permit applicant, Cookson Street Pty Ltd (permit applicant) against condition 1(a) of the NOD, which seeks the deletion of the uppermost level of the proposal.
3	The residents are concerned with the impact of the proposal upon: heritage; neighbouring properties by way of overlooking and visual bulk; waste collection; and the cumulative impact of traffic and car parking.  They say that the proposal should be no higher than 4 storeys.
4	The Council considers that the proposal will make a positive addition to the locality. However, Council says that seventh level is unacceptable because of its scale and visual impact.
5	The permit applicant submits that the proposal including the seventh storey is appropriate and acceptable in this location and further, that the seventh level will not result in any adverse impacts on the surrounding neighbourhood.
6	At the commencement of the hearing, the permit applicant sought to amend the permit application by the substitution of amended plans.  No party before the Tribunal opposed the substitution of the plans and such an order was made.
7	Having considered the submissions and evidence at the hearing, we conclude that a six-storey proposal is an acceptable planning outcome.  Our reasons are set out below.
what is the proposal?
8	The following is a summary of the key elements of the proposal:
•	three basement levels comprising 44 car spaces, bin storage room, lift access and stairs and residential storage areas;
•	ground floor with 2 commercial tenancies, 3 apartments with courtyards, bike storage, retail bin room, two residential entries and lobby;
•	levels 1 and 2 comprises 6 apartments;
•	levels 3 and 4 comprises 4 apartments;
•	level 5 provides for 3 apartments; and
•	level 6 comprises 1 apartment.
9	In total, 27 apartments are proposed.
10	The proposal is for a street wall to be constructed along the southern and western boundary for both ground level and level 1.  At level 2 the construction is setback approximately half way along the western boundary. 
11	To the southern boundary Levels 3 to 5 are set back between 5.34 metres to the east and 8.72 metres to the west.  Level 6 is then set back between 5.8 metres to the east and 9.18 metres to the west.  These setbacks are to the building line and do not include the balconies which encroach into those setbacks.
12	The proposal is to be constructed on the eastern boundary up to level 5 except for a light court that measures 7.22 metres x 5.82 metres.  Level 6 is then set back 5.82 metres from the eastern boundary.
13	To the west the proposal is set back 3.27 metres to the title boundary and 5 metres to the centre of the laneway that abuts the land.  Level 6 is set back 3.72 metres from the title boundary to the edge of the planter box at the perimeter of the balcony and 6 metres to the building line. 
14	To the north, the proposal is to be constructed between 3 metres and 6.28-6.38 metres from the title boundary at ground level, and levels 1and 2.  The level 2 setback varies between 3 metres and 6.38 metres from the building line, with private open space areas and balconies further set back.
15	The face of the building at Levels 3 and 4 is setback between 5.5 metres and 8.8 metres, with balconies projecting 2.5 metres into the setback from the building line to the boundary.  Level 5 is set back between 7.5 metres and 10.89 metres from the boundary, with balconies projecting 2.4 metres into the setback.
16	Level 6 is setback between around 10.8 to 12.6 metres from the northern title boundary, with balcony planter boxes projecting 1.8 metres into these setbacks.
17	The maximum overall height of the proposed building varies given the topographical conditions.  However, it is generally proposed to be 25 metres high, excluding the rooftop services.
18	The materials and finishes proposed include a combination of washed red brickwork for the street wall, black and dark metal framing and various shades of glazing to the upper levels.  The exterior walls of Level 6 comprise almost entirely of dark glazing.
what is the physical and strategic context? 
19	The land is within the Commercial 1 Zone (C1Z) and within the Camberwell Major Activity Centre (MAC).  This type of activity centre is the highest order activity centre within the municipality.  Although the land is on Cookson Street, it forms part of the commercial spine that is located along Burke Road.
20	The land is not affected by any overlays.  Various heritage overlays affect surrounding land.  The residents describe the land as ‘encircled’ by heritage overlays.  
21	At State policy level, there is clear encouragement for higher density development in or close to activity centres, employment corridors and public transport.  The proposal is clearly consistent with State policy.
22	At the local level, the Boroondara Planning Scheme (planning scheme) promotes higher density development within the MAC and more particularly clause 21.01-1 identifies that the role of activity centres is to support a 20-minute neighbourhood.  Clause 21.05 and Boroondara’s Housing Framework again support increased housing and density within MAC’s and the C1Z.    
23	Specific policy guidance for this MAC is set out at clause 21.07-1.  Objective 9 of clause 21.07-1 states: 
To maintain the scale and character of the Junctions’ buildings and spaces to improve the quality of pedestrian environment.
24	The relevant strategies include:
Require that all new developments respect the present character and scale of Camberwell Junction.
……
25	Clause 21.07 also contains maps that identify preferred land uses, scale, character, height and setbacks for particular areas.  The land is within the Secondary Retail Area and has a preferred height limit of 11 metres.
26	The Camberwell Junction Structure Plan (Cities of Camberwell and Hawthorn, December 1993) (Structure Plan) is a reference document to clause 21.07.
27	Some of the physical attributes have been set out earlier in this decision and we highlight the following.  The land is an amalgam of three land parcels and provides for a reasonable overall size when compared to the general subdivision pattern in the commercial area.
28	It also has three street frontages and no sensitive abuttals.
29	Number 2 Holly Street, Camberwell is located to the north, across the laneway and is developed with a double storey dwelling.  The private open space is located to its rear and closer to its northern boundary.  The southern and western boundaries are occupied by outbuildings, comprising garages and a home office.
30	To the west, across the western laneway is the rear of a number of properties that face Burke Road.  Number 718-722 Burke Road is located on the corner of Burke Road and Cookson Street and is known as the ‘Davies Building’.  It is three storeys in height with its upper most level being recessed from the lower levels.
31	The property at 724-726 is being redeveloped with a three-storey building for commercial use. 
32	The property at 728-730 Burke Road has been recently redeveloped with a five-storey building comprising balconies and windows facing onto the land.
33	Adjoining the land to the east, 25 Cookson Street is developed with a two-storey building used as an antique centre, café and office.  The two-storey footprint of this building occupies almost of its land.
34	To the south of the land, across Cookson Street is the Camberwell Railway Station.
35	There is little doubt given the strategic and physical contexts that there is strong strategic support for higher density development on the land.  However, the residents assert, all the land surrounding 15, 17 and 19-23 Cookson Street is affected by heritage overlays and thus development must be tempered.
What are the key issues?
36	Having heard the submissions and evidence presented to us we consider the following are the key issues for determination:
i	What weight, if any should be given to previous Tribunal decisions and planning permits relating to the land? (Previous Decisions and Permits)
ii	Is the proposal consistent with the overall built form directives in the planning scheme? (Built Form)
iii	Is heritage a relevant matter for consideration and will the proposal impact on the heritage significance of the surrounding area? (Heritage) 
iv	Will the proposal result in unacceptable off-site amenity impacts including impacts on equitable development? (Amenity and Equitable Development)
v	Does the proposal provide an acceptable number of car parking spaces? (Parking)
vi	Will the proposal have an adverse impact on traffic in the surrounding area? (Traffic)
previous decisions and permits 
37	On 28 October 2008, Planning Permit PP07/01035 (2008 Permit) issued in respect of land at 19-23 Cookson Street, Camberwell permitted the use and development for a six-storey building comprising an office, 60 seat restaurant and 12 dwellings with a reduction in the car parking requirements.  The 2008 Permit followed a decision of the Tribunal in 2008 directing the issue of the permit.  Plans were endorsed in February 2009 and September 2010.  The development approved under the 2008 Permit has not been constructed and the permit has subsequently lapsed.
38	Several of the residents that appeared before the Tribunal in 2008 also appeared before us.  
39	On 9 September 2015 Planning Permit PP14/01586 (2014 Permit) was issued for the construction of a six-storey mixed use building and reduction in car parking for residential visitors.  We were told at the hearing that the 2014 Permit issued because of a negotiated agreement at the Tribunal.  It too related to 19-23 Cookson Street.
40	Interestingly, condition 1(a) of the 2014 Permit required the deletion of level 7 (sixth floor). There are no endorsed plans under the 2014 Permit and the permit has also lapsed.
41	During the hearing we were referred to a number of paragraphs from the Tribunal decision in 2008.  We highlight the following:
•	the land comprised approximately 602m2;
•	the land was in a Business 1 Zone (B1Z) and not in a heritage overlay;
•	the proposal was for a mixed use comprising an office, restaurant and dwellings;
•	The land formed part of the Camberwell Junction Activity Centre;
•	the maximum overall height was 19 metres to the top of the lift well;
•	the Structure Plan was a reference document in the Planning Scheme; and
•	25 Cookson Street was not in a heritage overlay.
42	We do not intend to recite the full findings of the Tribunal decision in 2008 except to note the following:
•	the 11 m height shown in policy was said to be a nomination or preference at best it is not a mandatory planning control but, rather, a guide;
•	there were no heritage policies or controls affecting either the land or 25 Cookson Street;
•	the waiver of parking in association with the restaurant customers and resident visitor spaces was acceptable in the activity centre context;
•	a six-storey building with appropriate upper level setbacks to Cookson Street and to the north was acceptable.
43	The following is a list of differences that distinguish this application from the proposal approved by the Tribunal in 2008:
•	The land comprises three parcels of land and is approximately 996m2;
•	25 Cookson Street is affected by a heritage overlay;
•	A seven-storey building is proposed;
•	There are varied setback arrangements above the street wall; and
•	The proposed street wall is higher.
44	It is true that the current application involves different elements such as the land size and overall height of the proposal.  However, the locational attributes, the physical constraints and the strategic context remain as they were in 2008.  As such a starting proposition is that the land is capable of supporting ‘higher density’ of at least six-storeys if appropriately designed.  That does not mean that any six-storey building is acceptable.  Whether a taller building is acceptable will depend on the architectural expression, the visual impact and amenity concerns.
45	We consider that the previous approvals are relevant to our decision in these matters however, they are not determinative of this outcome.  
built form 
46	Council believes the proposal, subject to the deletion of Level 6, will be a positive response to the MAC, the policy aspirations of the scheme, and to the existing and emerging built form.  The Council has determined that the significant benefits of the proposal outweigh the dis-benefits, and that it represents an acceptable planning outcome for the site.  It says the design of the proposal is of a high quality, and that the land can ‘absorb’ a building generally of the height and scale proposed.  However, it considers that at seven storeys, the ‘development seeks too much’. 
47	The image below is a photomontage image prepared by Mr Goss contained in his witness statement.

48	Residents assert that four storeys is the appropriate height for a building contiguous with the low scale heritage buildings in the residential area.
49	In contrast, the permit applicant says that the proposal appropriately manages off site amenity impacts in terms of visual bulk, overlooking and overshadowing.  It provides equitable development opportunities for its adjoining commercial neighbours, in addition to its contribution to the public realm.
50	The land is within the municipality’s highest order activity centre.  It is extremely well served by public transport.  The C1Z seeks to create vibrant mixed-use commercial centres and to provide for residential densities complementary to the role and scale of the commercial centre.  The objective of Clause 15 is to achieve outcomes that contribute positively to the local context and enhance the public realm.  Clause 16 seeks to increase the supply of housing precisely in locations such as this one.  Local policy identifies the provision of increased housing density whilst protecting adjoining amenity as a key issue.  A policy objective for the MAC is to increase density and encourage various forms of housing in and around the Junction, an objective which is demonstrated by emerging built form.
51	Council considers that the three-storey podium which forms the street wall is an acceptable response to the streetscape.  We agree, despite submissions from residents that the street wall is too high.  Both in height and design it relates well to both the Davies Building and 25 Cookson Street, and the contemporary design of the modest brick façade does not seek to compete with its older neighbours.  The upper floors are both well recessed and display a different materiality, which serves to emphasise the podium portion of the proposal.  The laneway interfaces are also well resolved, and we note that there has long existed a distinction between the built form of buildings in a commercial zone and those in a residential zone.
52	In directing the Council to issue the 2008 Permit, the Tribunal recognised, on what was then only part of the land, the capacity to accommodate a built form higher than that surrounding it.  We too find that a six-storey building is acceptable in this location given the site’s strategic and physical attributes.  This is particularly so having regard to the composition of the building given the street wall height and the setbacks at upper levels.  
53	The question for this Tribunal is whether or not a seven-storey building sought by this permit applicant is an appropriate outcome.
54	The permit applicant submits that apart from the advantages arising from the locational attributes of the location, the upper most level is generously recessed on all sides and this will minimise its visual impact.
55	Whilst we accept that the building is generally well considered in both its overall form and detailing, we are not persuaded that the seventh level is a component of the design that will have no unacceptable impact on the public realm.
56	Council’s conditions seek changes to the materials proposed in the initial application.   In the amended plans, the material of the topmost level has been changed from brick to dark metal-framed glazing.  Council submits, on the basis of their urban design report, that this change in materiality draws the eye to the top of the building, creating an imbalance of the form of the building.  It maintains its view that the deletion of this level would reduce the prominence of the upper levels, which it says is overpowering.     
57	Mr Blades’ evidence is that although this level will be seen in oblique views from Cookson Street and in longer range views, it will read as a recessive upper cap to the building and assist in the transition to 2 Holly Street.  We do not agree.
58	The photomontages demonstrate the visual impact of the uppermost level from Burke Road, Cookson Street and Holly Street.  The prominence of this level, regardless of the proposed setbacks, is further emphasised by the substantial height and materiality of the plant areas above it, identified by a pale dotted line on the elevations, but clearly shown on the photomontages. The use of black metal framed dark glazing for the external walls, identified but not depicted as such on the substituted plans, serves to unite this level with those below it, rather than clearly separate it as a ‘cap’ to the building. If the uppermost level was removed, a further positive consequence would be the visual subsuming of the plant areas into the building bulk, with the result that the outline of the upper built form would be clarified because the plant and lift overrun would not read as separate a component. 
59	As presently proposed the uppermost level does not appear as a recessive cap but as a somewhat jarring component of an otherwise well resolved building.
60	Similarly, we are not convinced that what are described as ‘framing elements’ along the northern elevation at Level 5 are necessary to retain the architectural integrity of the building, or that they will appear as ‘lightweight’ in close range views.  With the deletion of Level 6, their identified other purpose of masking the stepping of the built form will fall away.
61	For these reasons, we have concluded that both Level 6 and the framing elements proposed along the north of Level 5 should be deleted.
62	Council’s proposed conditions 1(k) to 1(m), seek further changes to the materials. With the change of materials to the topmost level, the substituted drawings comprise only one brick tone, washed red, for the podium component. It is Mr Blade’s evidence that this achieves a ‘rich and tactile’ architectural outcome, one which relates the building to those nearby and helps to retain the distinct neighbourhood character sought by the planning scheme.  We agree with this assessment.
63	Above the level of the podium, Mr Blades supports the darker tones proposed, saying that the dark colour is of itself recessive.  It differentiates the upper from the lower level, thus breaking down the mass of the building as a whole, and serves to reinforce the prominence of the street wall.
64	We consider that the materials proposed are acceptable and will amend condition 1 accordingly.
heritage
65	The residents were concerned with the impact of the proposal on the surrounding heritage buildings.  The land is not within a heritage overlay.  It is however, surrounded by buildings within heritage overlays.  
66	To the east, 25 Cookson Street is subject to an Interim Heritage Overlay, Schedule 714 (HO714) (Conference Hall (Open Brethren)) that is set to expire on 28 February 2020.  The building is of local and aesthetic significance displaying a combination of face red brick and rendered panels, triple arch-headed windows and other decorative features.    
67	HO505 applies to properties along Burke Road including 718-722 Burke Road (the Davies Building).  Buildings within HO505 are significant in that they form part of the Burke Road North Commercial and Transport Precinct, which is historically and aesthetically significant.  From a built form perspective, the buildings are described as a coherent group exhibiting strong streetscape cohesion and presentation.
68	The Camberwell Railway Station is within HO263 and is of architectural and aesthetic significance as a representative example of an early twentieth century railway complex within a designed landscape setting.  
69	Lastly, HO159 applies to the residential properties to the north and east of the land and comprises generally intact and homogenous Victorian and Federation buildings.
70	The residents say that this situation is unique in a heritage sense.  However, we do not consider the situation to be unique or even unusual.  The Tribunal is regularly asked to consider development on land that is adjacent to or adjoining land within heritage overlays.  When one examines the heritage maps contained within this Planning Scheme it seems to us that this issue would regularly arise in this municipality.
71	Firstly, we observe that the proposal is on land that is not subject to a heritage overlay and hence the proposal does not need to be considered with respect to clause 43.01 of the Planning Scheme.  
72	Secondly, the land only adjoins one heritage overlay (HO714) at 25 Cookson Street.  The land then adjoins three streets (including two laneways) adjacent to the land, which are also not within heritage overlays.  
73	Thirdly, there is no local policy in this Planning Scheme that specifically directs a decision maker’s attention to the impact of a proposal on the heritage significance of buildings within adjoining heritage overlays.  
74	The residents submit that the Tribunal can consider such impacts to heritage buildings because of clauses 15.01 – 5S and 22.03 – 3.4 of the Planning Scheme which refer to heritage values.  We disagree with this analysis.  The permit triggers relevant in these applications are under the C1Z and the Parking Overlay.  The decision guidelines of the C1Z and the Parking Overlay require a decision maker before deciding on an application to consider, ‘as appropriate’, the municipal planning strategy in the planning policy framework.  The term ‘as appropriate’ is pertinent.  It means that the Tribunal must consider the relevant sections of the Planning Scheme.  If land is not within a heritage overlay, then the sections of the planning scheme that deal with heritage are not relevant to the decision maker.  The only proviso is if local policy directs the decision-makers attention to the impacts of the proposal on buildings within adjoining heritage overlays.  No such policy exists here.
75	Even if we are wrong about that analysis, we note that Mr Gard’ner reviewed the proposal and its impacts on each of the surrounding heritage overlays and concluded that the proposal would not adversely affect the heritage values contained within each of the relevant overlays.  We accept this evidence.
76	Further, we note that the heritage significance of each of the three heritage overlays set out above varies. There is no consistent heritage theme across the overlays.
77	We conclude that the impact of the proposal on the heritage significance of buildings within surrounding heritage overlays is not relevant to our determination.  However, we note that the urban design characteristics of these heritage buildings have been considered by the Tribunal when considering whether the proposal is appropriate, as discussed above.
amenity and equitable development
78	The three main amenity considerations discussed at length at the hearing are: visual bulk, overlooking and overshadowing.
Visual bulk
79	Visual bulk is pertinent to the north and east.  As set out above 2 Holly Street is developed with its private open space (POS) to the rear of the dwelling.  The proposal generally complies with Standard B17 when measured from northern boundary of the laneway. The elements of the proposal that do not comply relate to the framing elements at the sixth level.
80	This standard that would apply to the land, if the land was within a residential zone.   Standard B17 does not apply to the proposal.  It was used by Mr McGurn to gain an understanding of the visual impact on 2 Holly Street and we consider this is a sensible approach.  
81	We consider that the proposal does not result in unacceptable visual bulk to 2 Holly Street for the following reasons:
•	The location of the land within the C1Z and MAC;
•	The expectation that larger buildings will be in the C1Z and MAC and thus visible from residential properties; and
•	The proposed setbacks which vary from 3 metres to 6.38 metres to the title boundary are in fact more generous when one considers the intervening laneway and outbuildings along the southern boundary of 2 Holly Street. 
82	To be clear, we have not required the deletion of the uppermost level because of visual bulk impacts to 2 Holly Street.  This deletion is required for the reasons articulated above. 
83	Number 25 Cookson Street is located to the east, within the C1Z and MAC.  This site is used for commercial purposes and we consider any visual bulk impacts to be acceptable in that context.
Overlooking
84	The proposal also complies with Standard B22 in that it is setback more than 9 metres from the secluded private open space of 2 Holly Street. Again, this standard does not apply to the proposal.  The secluded rear POS of 2 Holly Street will be able to be seen by the residents of the proposal from at least level 2, possibly level 1.  However, we accept that whilst the amenity expectations of residential properties adjacent to commercial zoned land should be tempered, nevertheless a reasonable level of amenity must be maintained to existing residential properties. 
85	On balance, notwithstanding that the secluded POS of 2 Holly Street is more than 9 metres from the balconies of the northern apartments on the land, we consider that some form of screening to the balconies is appropriate.  Number 2 Holly Street is already overlooked by the newly constructed developments that front Burke Road.  Whilst these balconies are also in excess of 9 metres, there is a perception that residents of 2 Holly Street have lost privacy which will be exacerbated if this proposal is constructed. 
86	We will include a condition that requires balconies to all north facing apartments from level 1 onwards to provide screening that limits downward views but allows for horizontal views so that the internal amenity of the apartments is not compromised.
87	We consider this outcome to be a reasonable balance of competing expectations in this context.
 Equitable development
88	We consider it appropriate to have regard to the equitable development of the eastern property given its location with the C1Z and the MAC.  We accept that any development at 25 Cookson Street will need to be tempered given HO714.
89	The proposal provides a setback to the east with a generous light court.  Any proposed development to the east will need to consider this light court.  However, given the depth of both sites, and the fact that 25 Cookson Street also has the benefit of three street frontages we do not consider that the proposal unreasonably impacts upon the equitable development rights of the neighbour to the east.
90	To the west, the Davies and other buildings across the laneway have already been redeveloped, or are in the process of being so redeveloped.  We consider that the west wall of the proposal responds acceptably to what is the rear of these buildings, which face Burke Road.
carparking
91	The proposal provides 49 car spaces within the basement.  The allocation of these spaces is:
•	38 car spaces for residents;
•	3 car spaces for residential visitors (reduction of 2 car spaces);
•	1 car space for shop (reduction of 1 car space);
•	1 car space for food and drink premises (reduction of 3 car spaces).
92	 Hence the total reduction sought for car parking is 6 car spaces.
93	The land is subject to Parking Overlay Schedule 1 (PO1) which applies to all land within activity centres in the municipality.  With respect to dwellings, PO1 simply confirms the statutory rate in clause 52.06.  
94	The land is in the highest order activity centre in the municipality, opposite the Camberwell Railway Station and very close to tram services along Burke Road.  This land has excellent access to public transport options.
95	The Council’s traffic engineers are satisfied with the proposed parking provision.  The residents are concerned with the lack of car parking in the general area.  They were critical of the parking surveys contained within Ms Dunstan’s evidence submitting that they were limited in nature and only taken on a Friday and Saturday.
96	With respect to visitor spaces whilst PO1 requires that all 5 car spaces be provided, clause 52.06-3 allows a reduction to be considered and clause 52.06-5 provides the parameters for such consideration.
97	The car parking surveys undertaken demonstrate high demand for parking in the area.  Further the draft ‘Cookson Street Improvement Project, Camberwell Plan’ (Improvement Project) indicated that approximately 10 car spaces will be removed if the Improvement Project proceeds.
98	The long-term users of the land including the residents and staff of the commercial operations will have access to parking onsite.  It is the transient users such as visitors and customers that are not all accommodated onsite.  We consider this to be an appropriate outcome in an activity centre location.  We note from our site inspection that there are few commercial operations that provide onsite parking.  This is hardly surprising in an activity centre setting.  
99	Moreover, within such a context, visitors and customers of the commercial operations would not expect to obtain parking in close proximity to the land and would consider themselves lucky if they did.
100	We accept the evidence of Ms Dunstan that the proposed reduction is acceptable in this location.  We come to this conclusion based on the locational attributes of the land including its excellent access to transport options.  Accordingly, we will delete Condition 1(t).
traffic and waste management
101	There is little doubt that traffic congestion can have an impact on the amenity of the residents living close to an activity centre.  However, that impact must necessarily be offset and balanced by the services that are in close proximity.
102	Ms Dunstan estimates that the proposal will generate approximately 127 vehicle trip ends per day which represents 1 vehicle movement every 4-5 minutes during the peak hour.  
103	The residents are concerned that the traffic analysis has not considered the cumulative impact of traffic in the area, particularly as more development is likely in this activity centre.  It would be difficult to factor into any analysis future traffic conditions.  It is self-evident that as the activity centre is further developed, there will be increase in traffic in the general area. 
104	However, this is not a reason to refuse this proposal.  We did not hear any evidence that the area is at capacity and thus cannot cope with the level of traffic that currently exists.  
105	Concerns were also raised with respect to use of the laneways to access the basement.  Ms Dunstan estimates that the western laneway has an environmental capacity of 1000 movements per day.  At present this laneway experiences between 80-130 vehicle movements per day with an additional 127 vehicle movements from the proposal.  This is well within the environmental capacity of the laneway.
106	Further, the visibility along both laneways is high and hence we do not consider that the there is any increased safety concern for pedestrians from this proposal.   In addition, the proposal incorporates a curved garden wall on the north-west corner at ground level, increasing visibility between the two lanes. 
107	The Tribunal notes that laneways are used across Melbourne to provide access to new development.  We consider the proposal before us with access to the basement from the western laneway to be a superior outcome, particularly in terms of urban design principles.  The provision of basement access from a major street is often difficult to manage and does not always result in an attractive streetscape outcome.  
108	The residents expressed concern with waste collection however, after hearing Ms Dunstan’s evidence that collection for residential waste is to occur from within the basement, this issue was no longer pursued.  Further, the commercial waste is to be collected on the site along the vehicle accessway by a private contractor.  These methods of waste collection do not raise any concern with the Tribunal and we consider the arrangements to be superior to collection from Cookson Street.  Accordingly, we will modify Condition 19 to require deletion of reference to waste collection from Cookson Street. 
Conclusion
109	For the reasons given above, the decision of the responsible authority is varied.  A permit is granted subject to conditions.

Teresa Bisucci 
Senior Member 		Ann Keddie
Member	

Appendix A – Permit Conditions

Permit Application No	PP17/01389	
Land	15, 17 and 19-23 Cookson Street, Camberwell	

What the permit allowS	
•	Construction of a six-storey building; 
•	Use of the land for dwellings;
•	Reduction in the car parking requirements associated with a shop, food and drinks premises and dwelling visitors; 
in accordance with the endorsed plans.	

Amended plans required 
1	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 three (3) copies provided.  When the plans are endorsed they will then form part of the permit.  The plans must be substantially in accordance with the plans TP300-310, TP600-608 (all revision B) dated 26/03/2019 prepared by DKO Architecture (Vic) Pty Ltd but modified to show:
(a)	Deletion of Level 6;
(b)	Deletion of the framing elements at Level 5 on the northern elevation, as depicted (in red) on drawing TP727;
(c)	Amended and dimensioned layouts to provide a minimum 50% of dwellings to have a bathroom which is compliant with Standard D17 of Clause 58.05-1 of the Scheme;
(d)	Balconies of Apartments 1.01, 2.01 amended to provide a minimum area of 12sqm with a minimum depth of 2.4m, without the reduction in minimum depth of the adjacent bedroom to less than 3m;
(e)	Amended layout to Apartments G.02, 1.03, 2.03, 3.02, 4.02 and 5.02 to provide the minimum dimensions for a main bedroom as required by Standard D24 of Clause 58.07-1;
(f)	Storage to be dimensioned in cubic square metres and in accordance with Standard D20 of Clause 58.05-4 of the Scheme;
(g)	Provision of screening in accordance with Standard B22 of the Scheme to limit views into the secluded private open space from the western edge of the balcony of Apartments 3.01 and 4.01; 
(h)	Provision of screening in accordance with Standard B22 of the Scheme to limit direct views into the secluded private open space from the western living room window of Apartments 3.01 and 4.01;
(i)	Provision of screening in accordance with Standard B22 of the Scheme to limit direct views into the balconies of No. 728 Burke Road, Camberwell from the proposed western facing windows of Apartments 1.02, 2.02, 3.02, 4.02 and 5.02;
(j)	Provision of screening in accordance with Standard B22 of the Scheme to limit direct views into the balconies of No. 730 Burke Road, Camberwell from the western edge of the proposed balconies of 3.02, 4.02 and 5.02;
(k)	Provision of screening to the north facing apartments from Level 1 and above to limit downward views to 2 Holly Street;
(l)	Increased width of the two way vehicle access ramp to 6.1m;
(m)	Provision of a warm material and colour to the balcony soffits (all balconies);
(n)	Change in material to the balustrade of the lower levels with a high quality, charcoal/black, perforated/laser cut metal screen or similar;
(o)	Integration of all service units into the façade design and finished with high quality materials; 
(p)	Any measures provided in the Acoustic Report required by Condition 6;
(q)	Any measures provided in the Sustainability Management Plan required by Condition 7; and
(r)	The provision of a Schedule of Materials and Finishes, incorporating samples of all materials and finishes. The Schedule must demonstrate the high quality of the finishes palette and their compatibility with those existing within the streetscape and must include any material used to integrate services into the design. 
Layout not to be altered 
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 (unless the Boroondara Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.
Landscape plan
3	Concurrent with the endorsement of the plans referred to in Condition 1 of this permit a landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the Responsible Authority. The landscape plan must be generally in accordance with the landscape concept plan L-TP1 prepared by Etched Landscape Architects, but modified to show:
(a)	A plan for the planter boxes proposed to the balconies facing Cookson Street
(b)	Details of the planter depths and volumes for the planting above basement along the western boundary; and
(c)	Planting required by any other condition of this permit; 

Completion of landscaping works
4	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
5	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.
Acoustic Report 
6	Concurrently with the endorsement of the plans referred to in Condition 1 of this permit an Acoustic Report must be submitted to the satisfaction of the Responsible Authority, which outlines the measures required to achieve the following noise levels:
(a)	Not greater than 35dB(A) for bedrooms, assessed as an LAeq,8h from 10pm to 6am.
(b)	Not greater than 40dB(A) for living areas, assessed LAeq,16h from 6am to 10pm.
Sustainability Management Plan
7	Concurrent with the endorsement of any plans pursuant to Condition 1, a Sustainability Management Plan which is to the satisfaction of the Responsible Authority must be prepared by a suitably qualified expert and submitted to the Responsible Authority for approval, generally in accordance with the SMP prepared 21 December 2017 prepared by ADP Consulting. The report must address ESD principles proposed for the site including, but not limited to, energy efficiency, storm water collection and re-use on the site for landscape irrigation and residential toilet flushing (with mains back-up) and waste and building materials. The ESD report must include a NatHERS assessment of the maximum cooling load of each apartment and demonstrate that each apartment satisfies the requirements of Table D1 of Standard D6 in Clause 58. In the event of any apartment not satisfying the requirements of Table D1, the development must be amended to achieve compliance to the satisfaction of the Responsible Authority. Any recommended changes to the building must be incorporated into the plans required by Condition 1. Once approved, such a plan must be implemented prior to the commencement of the use to the satisfaction of the Responsible Authority.
Use of car parking spaces
8	Car parking spaces shown on the endorsed plans must not be used for any purpose other than the parking of vehicles, to the satisfaction of the Responsible Authority.
Parking to be free of charge
9	The areas set aside for car parking shown on the endorsed plans must be made available for use free of charge to employees and visitors at all times and must not be used for any other purpose.  
Visitor parking spaces
10	Visitor parking spaces within the development must be:
(a)	Clearly identified by appropriate signage having an area no greater than 0.3m2;
(b)	Line marked to indicate each car space; and
(c)	Available for visitor usage at all times.
Drainage
11	The site must be drained to the satisfaction of the Responsible Authority.   
Vehicle crossovers
12	Any new vehicle crossover or modification to an existing vehicle crossover must be constructed to the satisfaction of the Responsible Authority.
Boundary walls
13	The external faces of walls on or facing boundaries must be cleaned and finished to an acceptable standard to the satisfaction of the Responsible Authority.
Concealment of pipes
14	All pipes (except down-pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view, to the satisfaction of the Responsible Authority.
Plant/equipment or features on roof
15	No plant, equipment, services or architectural features other than those shown on the endorsed plan/s are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.
Condensers
16	No air-conditioning or cooling units, condensers and the like are to be located on roofs, external walls or on balconies without the prior written consent of the Responsible Authority.

Maintenance of waste storage area
17	All bins and receptacles used for the collection and storage of solid waste, recyclables and other wastes must be kept in a designated area, to the satisfaction of the Responsible Authority.  This storage area must be:

a)	Properly paved and drained to a legal point of discharge;
b)	Screened from view with a suitably designed enclosure;
c)	Supplied with adequate water; and
d)	Maintained in a clean and tidy condition free from offensive odors; 

to the satisfaction of the Responsible Authority.

Hours for waste collection 
18	Collection of waste must be conducted so as not to cause any unreasonable disturbance to nearby residential properties and may only take place during the following times:

Monday to Friday:		7:00am to 8:00pm
Saturday & Public Holidays:	9:00am to 5:00pm	
Sunday:		No collection allowed

to the satisfaction of the Responsible Authority.

Waste management plan
19	Concurrent with the endorsement of the plans referred to in Condition 1 of this permit, a waste management plan to the satisfaction of the responsible authority must be submitted to and approved by the Responsible Authority.  Once satisfactory, such plan will be endorsed and must be implemented to the satisfaction of the Responsible Authority.  The plan must provide the following details of a regular private waste (including recyclables) collection service for the subject land including:
(a)	the type/s and number of waste bins;
(b)	screening of bins;
(c)	type/size of trucks;
(d)	frequency of waste collection;
(e)	Plan showing the layout of the bins at collection time including sufficient clearances from all street services, features and infrastructure; and
(f)	Details of waste loading area; 

to the satisfaction of the Responsible Authority.  

Construction Management Plan 
20	Prior to the commencement of any site works, including demolition and excavation, a Construction Management Plan must be submitted to and endorsed by the Responsible Authority.  No works are permitted to occur until the Plan has been endorsed by the Responsible Authority.  Once endorsed, the construction management plan will form part of the permit and must be implemented to the satisfaction of the Responsible Authority.  The plan must be prepared in accordance with Council’s Construction Management Plan Template and provide details of the following:
(a)	Hours for construction activity in accordance with any other condition of this permit;
(b)	Measures to control noise, dust, water and sediment laden runoff;
(c)	Measures relating to removal of hazardous or dangerous material from the site, where applicable;
(d)	A plan showing the location of parking areas for construction and sub-contractors' vehicles on and surrounding the site, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises. Any basement car park on the land must be made available for use by sub-constructors/tradespersons upon completion of such areas, without delay;
(e)	A Traffic Management Plan showing truck routes to and from the site; 
(f)	Swept path analysis demonstrating the ability for trucks to enter and exit the site in a safe manner for the largest anticipated truck associated with the construction; 
(g)	A plan showing the location and design of a vehicle wash-down bay for construction vehicles on the site; 
(h)	Measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the construction management plan;
(i)	Contact details of key construction site staff; and
(j)	A site plan showing the location of any site sheds, on-site amenities, building waste storage and the like, noting that Council does not support site sheds on Council road reserves.

Hours for demolition and construction
21	All works including earthworks, demolition and construction activity associated with the approved development must take place only during the following hours, except with the prior written consent of the Responsible Authority:
Monday to Thursday: 	7:00am to 6:30pm
Friday: 	7:00am to 5:00pm
Saturday: 	9:00am to 5:00pm
Sunday & Public Holidays:	No construction

Permit to expire:
22	This Permit will expire if:
(a)	The development does not start within two (2) years of the issue date of this Permit; or
(b)	The development is not completed within four (4) years of the issue date of this Permit; or
(c)	The use does not commence within two (2) years of the completion of the development.
The Responsible Authority may extend the times referred to if a request is made in writing before the permit expires or:

(i)	within six (6) months afterwards if the use or the development has not commenced; or
(ii)	within twelve (12) months afterwards if the development has not been completed.

Council and the Victorian Civil and Administrative Tribunal are unable to approve requests outside of the relevant time frame.

– End of conditions –