VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P1632/2018
Permit application no. PP17/00261	
CATCHWORDS	
Boroondara Planning Scheme; Application pursuant to Section 77 of the Planning and Environment Act 1987; General Residential Zone - Schedule 4 (GRZ4); Nine storey mixed use building; Height; Boundary setbacks; Internal amenity; Street interface; Impacts on nearest residential property; Trees and landscaping; Opportunity to prepare amended plans. 	
APPLICANT	3000 Corporation Pty Ltd 	
responsible authority	Boroondara City Council 	
respondents	Pamato Corporation Pty Ltd, Greg Deakin, Mary Drost, Arthur Rappos and Andromahi Christou, Paul Gallager and Others	
SUBJECT LAND	8-18 Porter Street
HAWTHORN EAST  VIC  3123 	
WHERE HELD	Melbourne	
BEFORE	J A Bennett, Presiding Senior Member
Lorina Nervegna, Member	
HEARING TYPE	Hearing	
dates Of Hearing	15 to 18 April and 2 May 2019	
DATE OF ORDER	5 July 2019	
citation	3000 Corporation Pty Ltd v Boroondara CC [2019] VCAT 993	
Order
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 for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	Urban Design Architects	
•	Drawing numbers:	TP00, TP04, TP05, TP06, TP07, TP09, TP10, TP13, TP14, TP16, TP17, TP18, TP19, TP20, TP23, TP24, TP25, TP26, TP28 and TP29 (20 sheets total)	
•	Dated:	27 February 2019	
2	On or before Friday 26 July 2019, the Applicant must in writing advise the Responsible Authority and the Tribunal whether it intends to prepare revised plans responding to the recommendations set out in paragraph 109 of the Tribunal’s reasons.  
3	On or before Friday 27 September 2019, the Applicant must file with the Tribunal and serve on the Responsible Authority and other parties revised plans, summary of changes and reports addressing the recommended modifications set out at paragraph 109 of the Tribunal’s reasons, together with any consequential changes arising from those modifications. A statement of service is required to be filed with the Tribunal. 
4	Within 28 days of its receipt of revised plans and notes, the Responsible Authority and any other party may file with the Tribunal and serve on the Applicant any written submissions relating to any revisions to the proposed plans. 
5	Unless parties specifically request a hearing to present their written submissions, the Tribunal will finalise its determination based on the filed material. 
6	If no response is received by the Registrar of the Tribunal with respect to Order 4 it will be assumed that no further submissions are sought to be made by that party.
7	If the Applicant does not respond to Order 2 by the date given or indicates that it does not wish to prepare amended plans, the Tribunal will direct that no permit is to be issued. 

J A Bennett
Presiding Senior Member		Lorina Nervegna
Member	

Appearances
For 3000 Corporation Pty Ltd	Ms Susan Brennan, QC and Mr Jordan Wright, Barrister instructed by Mills Oakley Lawyers. They called expert evidence from the following witnesses in order of appearance:
•	Mr Andrew Biacsi, Town Planner of Contour Consultants Aust Pty Ltd.
•	Mr Rob Galbraith, Arborist of Rob Galbraith & Associates.
•	Mr Evan Dimitropoulos, Landscape Architect of Etched Projects. 
•	Mr Jason Walsh, Traffic Engineer of Traffix Group Pty Ltd. 
•	Mr Larry Parsons, Urban Designer of Ethos Urban Pty Ltd.	
For Boroondara City Council	Ms Kim Piskuric, Solicitor of Harwood Andrews. She called expert evidence from the following witnesses in order of appearance:
•	Mr Rob Milner, Town Planner of David Lock Associates Australia Pty Ltd.
•	Professor Rob McGauran, Architect of MGS Architects Pty Ltd.	
For Pamato Corporation Pty Ltd, Greg Deakin, Mary Drost, Arthur Rappos and Andromahi Christou	Mr Adam Haines, Town Planner of SJB Planning Pty Ltd.
Mr Greg Deakin, Mrs Mary Drost, Mr Arthur Rappos, Ms Andromahi Christou, Mr Paul Gallagher.	
Information
Description of proposal	Construction of a nine storey mixed use buildings and a reduction in on-site parking.	
Nature of proceeding	Application under Section 77 of the Planning and Environment Act 1987 to review the refusal to grant a permit.	
Planning scheme	Boroondara Planning Scheme.	
Zone and overlays	General Residential Zone - Schedule 4 (GRZ4).	
Permit requirements	Clause 32.07-5 (two or more dwellings on a lot in GRZ4).	
Relevant scheme policies and provisions	Clauses 11, 12, 13, 15,16, 21.02, 21.03, 22.01, 22.03, 22.08, 32.07, 43.02, 44.05, 52.06, 55, 59.08, 65 and 71.02.	
Land description	The review site comprises four individual lots located on the north eastern side of the street with each lot occupied by a single storey dwelling. The consolidated site is rectangular with the frontage to Porter Street and the rear boundary having the longest dimension of 53 metres. The shorter side boundaries have lengths of 24 metres and the site has an overall area of 1,300 square metres. 	
Tribunal inspection 	The Tribunal undertook an accompanied inspection on the morning of the 2 May 2019.	

reasons
What is the application for and why is Council opposing it?
1	When originally submitted to Council in July 2017, the proposal was for a ten storey, mixed use building containing 25 dwellings. Plans substituted at the commencement of the hearing reduced the height of the building to nine storeys but increased the number of dwellings to 58. On-site car parking has increased from 55 to 61 spaces, bicycle spaces have increased from 13 to 51 and there have been changes to boundary setbacks and façade treatments. 
2	Council refused the application on thirteen grounds which in summary involve the following main issues:
•	Not achieving an appropriate design standard and architectural quality and the proposed scale, massing, design detailing, building typology and siting does not provide an appropriate response to the strategic and physical contexts.
•	Greater separation is required between the proposed building and CV1 to reduce the unreasonable visual bulk of the two volumes and the sheer bulk of the combined mass on the character and skyline of the centre.
•	The ground floor layout fails to create a suitably active frontage to Porter Street and will have a detrimental impact on the public realm.
•	Failure to provide an appropriate landscape setting and transition between commercial and residential areas.
•	Having an unreasonable impact on equitable solar access and development opportunities for the southern and north eastern adjacent properties.
•	The mass, scale and siting of the podium and tower elements are dominating and discordant. 
•	It will have a detrimental impact on CV1 and dwellings at 8 Monteath Avenue through visual bulk, reduced outlook, overlooking, overshadowing and reduced daylight.
•	The internal amenity of dwellings is compromised because of inadequate open space to 30% of the dwellings, significant overshadowing of balconies and the inadequate size of lightwells. 
•	Post development traffic will have a detrimental impact on the safety and operation of the local road network.
•	The development will have a detrimental impact on the health of mature trees on an adjoining site and the removal of street tree No 4 is not supported.
3	Based on the substituted plans, Council added an extra ground concerning the shortfall in car parking spaces having an adverse impact on the amenity of the locality. 
4	The owner of CV1 and CV and nearby residents are also concerned about the scale of the proposed development, its failure to respond to the strategic and site contexts and the adverse amenity and traffic impacts. Five parties attended the hearing to make written and oral submissions. 
5	The Applicant rejects these reasons for opposing the application and submits that it is a reasonable and acceptable proposal because: 
•	The strategic intention underpinning the zone, the consolidated site area, the activity centre location and the interfaces support the intensity of the proposed residential development 
•	There is strong policy support for this type of development in the Camberwell Junction Major Activity Centre and it responds properly to the site’s physical and strategic context.
•	It responds positively to the public realm and the emerging character of the activity centre environs.
•	It does not create unacceptable amenity impacts and provides an acceptable quality of amenity for future residents.
•	It respects equitable development opportunities on neighbouring properties.
•	There are no traffic or parking reasons to refuse the proposal.
6	Whilst we acknowledge that construction of a more intensive residential development on the review site is consistent with its location within a major activity centre, we have concluded that this proposal without further changes is an unacceptable outcome for the reasons which follow. 
7	In deciding to give the Applicant an opportunity to prepare amended plans, we have had regard to the relevant planning controls and policies, submissions, evidence, and site context including our appreciation of that context after our site inspection. 
our assessment
What does the Planning Scheme have to say about future use and development on this site?
8	To understand whether the proposal is an acceptable outcome, it is important to understand what built form and development outcomes are being sought in the Metropolitan Planning Strategy and for Camberwell Junction in the Boroondara Planning Scheme. 
9	It is anticipated that in the next few decades Melbourne will once again be Australia’s most populated urban centre. While there are many different opinions as to whether that pre-eminent position is a positive or negative thing, there is little doubt that the metropolitan area will be a different place from the past or the present. To guide that change, Plan Melbourne 2017-2050 has been adopted as the strategic plan or framework for Melbourne and regional areas of Victoria. 
10	Plan Melbourne 2017-2050 is projecting that Melbourne’s population will increase from approximately 5 million people to approximately 8 million people over the next 31 years and that 1.6 million new dwellings will be required to house them. More recent projections suggest that these figures are underestimates and that both population and new dwellings will be higher.
11	Plan Melbourne 2017-2050 and policies such as those at Clause 16.01-2R are unambiguous that medium and higher density development should be focussed in established areas near employment and transport to support objectives concerning urban consolidation and housing choice. Facilitating new housing in areas close to existing services, jobs and public transport is aimed at creating a city of 20-minute neighbourhoods. There is also an intention that more intensive development be focussed in and around nominated activity centres and on the Principal Public Transport Network. Camberwell Junction is listed as a Major Activity Centre in the table attached to Map 14 in Plan Melbourne 2017-2050.
12	The Local Planning Policy Framework and the Municipal Strategic Statement are set out in Clauses 21.01 to 22.06 and they provide more detailed guidance as to how the broader State and regional level policies are to be implemented across Boroondara. Clause 21.01-1 reiterates that Camberwell Junction is one of three major activity centres within the municipality and it seeks to ensure that such centres retain a commercial focus and that residential development complements that commercial focus, particularly at upper levels. There is also an intention that development will achieve high quality urban design standards, protect and respect neighbourhood character, maintain the amenity of adjoining and nearby housing and facilitate housing diversity in centres and in the GRZ. Council notes that the site being within an activity centre is not within a neighbourhood character precinct.
13	Housing policy is contained in Clause 21.05 and Table 1 sets out outcomes for different zones. As it relates to the GRZ4 affecting the review site, the outcome is to facilitate development outcomes in accordance with any adopted structure plan and/or Design and Development Overlay. 
14	Clause 21.07 contains policies for local areas and those for Camberwell Junction Major Activity Centre are at Clause 21.07-1. Ten objectives and a raft of related strategies establish a broad framework or outcomes Council is seeking to achieve. The Camberwell Junction Plan (Cities of Camberwell and Hawthorn, December 1993) is listed as reference document and Maps 1, 2, 3 and 4 identify the plan area, preferred land use locations and potential development sites, scale and character, and heights and setbacks. These identify the review site as having potential as a parking area with a height limit of 8 metres. 
15	A revised Camberwell Junction Structure Plan was adopted by Council in October 2008, which was subsequently updated and adopted by Council in 2011. Amongst other proposals, it included the review site and land to the north east, east and south east within Precinct 3 (Junction West Mixed Use). In addition, the review site and surrounding land other than the Council carpark, were earmarked for buildings with a maximum height of 5 storeys/18 metres with progressive setbacks. 
16	Implementation of the 2011 Structure Plan was to occur by way of Amendment C229. Following public exhibition and consideration of a Panel report, Council adopted a modified version of Amendment C229 and submitted it to the Minister for Planning for his consideration and approval. Inexplicably, the amendment gazetted on 26 October 2017 did not reference the 2011 Structure Plan but retained reference to the 1993 Structure Plan. A subsequent Amendment C279 sought to correct errors and remove duplication following the gazettal of Amendment C229, but it still did not incorporate the 2011 Structure Plan into the Planning Scheme. 
17	Consequently, decision makers are faced with policy and an outdated reference document in the Planning Scheme which Council has sought to replace with an updated version. Various divisions of the Tribunal have had cause to consider the relevance and weight to be given to the various iterations of policy and structure planning for Camberwell Junction. Parties referred us to many of these decisions and we do not recite them all in our reasons. We also observe that although these predate the gazettal of Amendments C229 and C279, and the deletion of Clause 22.06 (Camberwell Junction Local Policy) and amendments to Clauses 21.07-1 and 22.02 (now Clause 21.07), the commentary about the iterations of local policy and the two Structure Plans is still of relevance. 
18	For that reason, we find the following comments in Pamato Corporation Pty Ltd v Boroondara CC [2014] VCAT 1278 as representative of the conclusions we have formed about strategic planning for the Camberwell Junction Major Activity Centre: 
[31]	Local policies build on State policy, applying it to local circumstances with an aim to manage the change in the context of local character.  Here, the guiding location-specific policy (Clause 22.02) has issues about its currency while the 2011 Structure Plan is not in the Scheme.  
[32]	Clause 22.02 is part of the Scheme and must be considered.  This is agreed between the Council and Applicant as is the understanding that the decision guidelines and contents of the maps are not mandatory.   It is also agreed between the parties that the 2011 adopted Structure Plan is relevant under Section 60 (1A) (g) of the Planning and Environment Act 1987.  We accept these submissions and do not think these are contentious findings.
…
[36]	We accept many principles upon which the Applicant relies including that the subject land is expected to make a significant contribution to delivering the outcomes sought by State policy and, in doing so, can be reasonably expected to result in substantial development.  We do not consider that Clause 22.02 and the Structure Plan can have determinative weight.  Firstly, Clause 22.02 is based on outcomes (such as with respect to heights, setbacks and scale) that the 2011 Plan acknowledges do not respond to the expectations of subsequent State policies.  Secondly, the 2011 Plan has not been tested via a Scheme amendment and is not in the Scheme.  Further:
•	The local policy is derived from a 1993 Structure Plan.  The 1993 reference document pre-dates the introduction of the concept of activity centres (having previously been referred to as “district centres”) as the document records.  This is relevant to the weight that can be given to the policy particularly the content of the maps.  
•	The weight that can be given to the specific parts of the policy addressing height and built form is further affected by the fact that multiple developments have been approved and constructed above the nominated heights.  Aside from Aerial and The Well that were not subject to any heights on Map 4 in Clause 22.02, examples near to the subject land are along Camberwell Road, diagonally opposite, and extending further to the north-west on both sides of the road.  
•	The 2011 Plan maintains some structural components of local policy and the 2008 Structure Plan, such as scaling down development into the traditional finer grain forms around the six-ways road junction.  Therefore, it carries aspects of the local policy forward. However:
•	Its approach to entries/gateways and landmarks has changed and, while the expert evidence before us may agree on some points (such as the importance of Harold Street as an entry to the centre), there is no specific rationale in the document as to why the references to gateways and landmarks have been removed.  
•	The nomination of key development sites includes different properties than shown in Clause 22.02 again without specific rationale being explained.  We do not think that these nominations can properly be regarded as exclusive; other opportunities can and will arise.  It is unclear to us why the subject land was omitted in 2008/2011 even if it had, by way of example, recently been renovated at that time and the land was no longer being pursued for a landmark because of the revised entry point at Harold Street. 
•	Mr Hutson (presenting expert evidence on urban design and architectural merit for the Council) did not place weight on the heights in Clause 22.02 or the 2011 Structure Plan.  He did not give evidence that the subject land should, on his assessment, be limited to 11 metres in height.
[37]	We further note that the Council’s urban designer focused on the urban design merits in his assessment of the permit application and did not aim to achieve compliance with the heights in the Structure Plan or Clause 22.02.
[38]	Having regard to the above, we do not consider that Clause 22.02 or the adopted 2011 Structure Plan can be of assistance or influential in relation to matters of height.  As found in Benson Property Management:
… other than indicating that multi-level development is an acceptable outcome on the land, neither the Planning Scheme nor any other planning document provides us with any real guidance as to what the overall height of the development should be.
[39]	It is unfortunate that the local policy and structure planning processes have not advanced in a way that State policy anticipates such work can and should have an influential role in decisions about permit applications.
[40]	Having said that, we do not disregard all elements of either document at this point.  This is because of the weight and/or observations made by various witnesses with respect to matters such as landmarks, gateways and entries, as referred to their expert evidence.  That evidence was in the context of Clause 22.02 (notwithstanding the submissions/evidence to which we have referred to above) and, to a lesser extent, the 2011 Structure Plan.
[41]	We do not consider our approach to the policy and planning context is novel having regard to Tribunal decisions that have addressed the weight to be given to Clause 22.02 and the 2008/2011 Structure Plan.  We agree with the comments in ML Design:
… the Camberwell Junction policy, and the related 1993 Structure Plan, remain relevant considerations but that they must be interpreted and applied in the light of the more recent development of strategic planning for the Junction.
[42]	We add that they must also be interpreted and applied in light what has been approved and built.
[43]	We agree with Mr Townshend that the recent adoption and introduction of Plan Melbourne into the Scheme, plus the whole suite of zone reforms, further strengthen expectations about the role to be played by this site in this locality particularly in absence of a current structure or overlays in the Scheme.  This adds weight to our conclusion that development of a scale greater than envisaged by local policy is acceptable on this site, in principle.  Consistent with other Tribunal decisions, the opportunity is not unconstrained and the physical context becomes critical in assessing the merits of the permit application.
19	There was no dispute between the Council and the Applicant that planning policies and specific controls support intensive development of land with the locational attributes of the review site. However, intensive development is not unconstrained, and the physical context is critical in this case because of the site’s unusual location juxtaposed between multi-deck and at-grade carparks, very tall 10 and 11 storey mixed use buildings, a low-rise double storey apartment complex, beyond which are mostly single storey dwellings affected by a Heritage Overlay.  
20	We also note the somewhat unusual set of circumstances affecting this proposal and why they have influenced our decision to give the Applicant an opportunity to prepare amended plans responding to our concerns with the proposal now before us. Those circumstances can be distilled as follows:
•	The land is zoned General Residential 4 with a mandatory 11 metre/3 storey height limit. The permit application has the benefit of transitional provisions and is not required to comply with the 11 metre/3 storey height limit. 
•	Refusal of this 36.03 metre/9 storey proposal would result in any future proposal being limited to 11 metres despite the two expert witnesses called by Council supporting a building of between 5 and 8 storeys in height.
•	Structure Planning for the Camberwell Junction Major Activity Centre has effectively stalled with no new program in place to review old, inconsistent and outdated documents, and introduce revised zones and overlays. We contrast this lack of action with the approval of structure plans and revised zones and Design and Development Overlays for the Kew and Glenferrie Activity Centres.
•	The site abuts non-residential zones and uses on two sides – a three storey Council carpark to the north east and a ground level carpark to the south west. In the Commercial 1 Zone to the south west are the 10 and 11 storey CV and CV1 mixed use buildings. The only residential abuttal is to a double storey DHHS apartment building to the north west.  
21	Having regard to our consideration of policy and the unusual circumstances referred to above, we therefore support a building taller than 11 metres or 3 storeys which would be the maximum possible if the GRZ4 transitional provisions did not apply. However, for the reasons that follow we do not support the building shown on the substituted plans.
Is the design response acceptable?
22	We received evidence from two town planners and two urban designers/architects which has helped inform our decision about the design response and the various elements of the proposed building. Messrs Biacsi and Parsons appeared on behalf of the Applicant whilst Mr Milner and Professor McGauran appeared on behalf of Council. 
23	Those appearing for the Applicant largely support the 9 storey proposal, although with some relatively minor changes to improve the building layout. On the other hand, both Mr Milner and Professor McGauran consider that the building is too tall, has poor internal amenity, has not responded appropriately to its site context and is not supportable in its current form. 
24	In the following sections we discuss individual components of the proposal.
 Height
25	The overall proposed height is for a 9 storey tower and podium building with an overall height of 32.8 metres to the top of the parapet plus an additional 2.7 metres height of plant. Professor McGauran suggested that the lift overrun has been understated and that a 3.6 metre overrun would be commensurate with a slow lift and a 4.1 metre overrun for a fast lift.
26	Adjacent and proximate in the Commercial 1 Zone (C1Z) there is the CV, CV1 and the Well buildings. The CV is 34.5 metres high (plus an additional 2.9 metre plant), CV1 is 42.2 metres high (plus an additional 3.5 metre plant) and The Well is 26 metres high. 
27	Although the proposal has been described in storeys, we consider that a more useful assessment of comparative heights with nearby buildings should be in metres, not storeys. As noted by Professor McGauran, the floor to floor heights in this proposal are 3.6 metres, roughly 10 to 15 % higher than is usual for a building of this type. Consequently, this 9 storey building has a height which equates to many 12 storey residential buildings. We agree with Professor McGauran that a comparison of building heights in metres provides a better appreciation of scale. 
28	All four witnesses supported a building height that is well beyond the non-transitional GRZ4 maximum height of 11 metres or 3 storeys. It was noted that policy at Clause 21.07-1 identifies that there is a need to review the Camberwell Junction Structure Plan and prepare revised planning controls and that there is need to review the GRZ4 land in the Camberwell Junction Plan to determine whether this is an appropriate zone for this land. 
29	Both Mr Biacsi and Mr Parsons find that a 9 storey building is acceptable given the site’s strategic location within the Major Activity Centre, its proximity to tall buildings of a similar scale and intensity and the way in which it has been set back to respond to the lower built form to the north west. 
30	That opinion is not supported by Mr Milner. Whilst acknowledging the strategic support for more intensive development, he considers that the building should be lowered to 5 storeys with a possible recessed sixth level element. He formed this opinion on the basis that the site was not on the ‘Junction’, not on one of six road spokes leading into the Junction, not part of a primary pedestrian corridor or in a gateway location, and not in a commercial or activity centre zone. 
31	Professor McGauran states that the site is not a gateway but rather an infill and that it:
sits at the juxtaposition between a residential hinterland precinct identified for intensified residential form and an encircling commercial heartland and gateway boulevard interface with main street frontages and supportive zoning for mixed use intensification.
32	The concept of the review site being in some way described or attributed as having characteristics of a residential hinterland is not something we support. 
33	The site is not on the boundary of the low-rise residential area north of Harold Street but is within the boundaries of the Camberwell Junction Structure Plan area. We do agree that it is an infill site, but it is also proximate to single and double storey residential development to the north west and north which is also within the GRZ4. We consider that a more accurate description, if one is needed, is that the site plays a transitional role in terms of scale between the taller built form south of Porter Street and the lower built form to the north and north west. 
34	At a height which approximates the CV building to the south, we consider that the proposed building provides an unacceptable height transition and that it will visually dominate and loom over the lower scale residential properties to the north west and north. We therefore agree with Mr Milner and Professor McGauran that this site is more suited to a lower built form, although higher than the non-transitional 11 metres in the GRZ4. 
35	Although related to setbacks and detailed design, we are also concerned that a building approximately 35 metres high has the potential to create a canyon effect on the pedestrian network proposed in Porter Street. More generally we consider that a 35 metre high building is not consistent with the contextual placement or urban morphology within and at the edge of the Commercial 1 Zone, which in a linear form largely follows the six roads leading to the Junction.  
36	Given that we do not support the proposed building, we consider that a lower building would provide a graduated transition from the taller built form along Camberwell Road and in the CZ1 and the lower scale residential buildings to the north west and north. In determining what height would be acceptable, we have considered the physical context and relationship between built form of different heights, scale and form. It is on that basis that we have decided that a building with an overall height of not more than 20 metres (plus roof top services) would provide a more acceptable transition between higher and lower built form in this part of the Camberwell Junction MAC. 
Setbacks
37	The proposed setbacks at ground level are 2.5 metres to the north east boundary facing the 3-level car park decks; zero setback to the south east boundary facing the at-grade Dan Murphy car park; 2.0 metres and 3.6 metres to the south west at Porter Street; and 1.67 metres at the north west boundary facing the residential building at 8 Monteath Avenue. 
38	At levels 1 and 2, the setbacks are the same as for the ground level with one indent on the south east boundary wall; an increased 4.5 metre setback at the north west interface with 8 Monteath Avenue; and balcony overhangs extending to the boundary at Porter Street (south west).
39	At level 3, a 4.5 metre setback is provided to the building edge at the north east (facing the car park decks). However, the edge of the terraces encroaches on this setback and are setback 2.4 metres from the boundary. At the north west boundary, the setback is 6.5 metres to the building edge and 4.7 metres to the edge of the terraces/planters. At the south east (facing the at-grade car park) the building setback is 4.5 metres and the terraces edge is approximately one metre off the boundary.
40	Levels 4 to 6 are setback 4.5 metres to the north east and south east boundaries, 6.5 metres to the north west boundary and 3 metres to the south west boundary (Porter Street). 
41	Levels 7 and 8 have the same setbacks to all boundaries except for an increased setback to the north west of 10.9 metres to the building edge (levels 7 and 8) and 6.5 metres to the terraces (at level 7). 
42	The building setbacks were submitted by the Applicant as being acceptable and were supported by both Mr Biacsi and Mr Parsons. Mr Biacsi stated that the interfaces were well managed and that the 4.5 metre setback (from level 4 and above) from the side boundaries to the neighbouring car parks to the north east and south east were in recognition of their future development potential.  
43	Mr Milner did not agree. He stated that the 10 apartments at levels 1 and 2, with a sole outlook to the car park structure to the north east and 5.5 metres away, was unacceptable as car park users and residents would have a direct view of each other with minimal acoustic or visual privacy. He considers that the screening offered by the existing She Oaks along the edge of the car park is unlikely to provide an acceptable level of privacy. Above level 2, a 4.5 metres setback has been provided from the building edge to the boundary which he considers satisfies equitable development opportunities.
44	Professor McGauran considers that at the north east interface the setbacks were inadequate at ground and levels 1 and 2 and that the Applicant has made no substantive contribution to the provision of a landscape buffer with the car park deck structure, relying entirely on the landscape on the adjoining site. At the north west interface (opposite 8 Monteath Avenue) at ground level the proposal has located an at-grade loading bay, car parking access and service areas with no significant contribution to a buffer with the adjoining residences.
45	Professor McGauran also considers that the zero setbacks proposed at the south east to ground and levels 1 and 2 adjacent to the at-grade car park were a poor outcome, and that the proposal to construct a curtain wall on the boundary was neither practical nor sensible. 
46	We agree with Mr Milner and Professor McGauran that the ground level and level 1 and 2 setbacks to the north east are unacceptable and that the opportunity to provide setbacks that might anticipate future development has been understated by the proposal. We consider that the proposed setbacks result in a poor amenity outcome for future residents and do not provide scope for landscaping to ameliorate the visual and functional impact of the carpark on future residents in lower levels of the proposed building. 
47	In general terms, we consider that any proposal on the review site should anticipate future development along the north east and south east interfaces and provide equitable development opportunities along these boundaries. Instead, the development has adopted a podium tower configuration which has led to design assumptions with respect to boundary walls and future development on adjoining sites. We disagree that regardless of how the adjoining car park sites develop in the future, that it is appropriate to provide boundary walls and reduced setbacks on the assumption that they may be replicated on those adjoining sites. This would lead to an intensity and continuity of built form more akin to the CBD and is not an outcome we support.
Built form and urban design response
48	The resolution of the building design has resulted in a sculpted tower form featuring curved edges in plan above the podium and a series of deep 750mm fins projecting from the façade of the tower that run vertically to the north façade and a portion of the east and west façades where the depth of the fins diminishes until they disappear. The fins are curved at the top and bottom which gives the overall tower a curved bottom and top edge effect. Without the fins the building is ostensibly a curtain wall glazed tower adopting a commercial façade expression. Within the façade there are punctuated recesses that form covered terraces (i.e. terraces with soffits) and wintergardens that emphasise the curtain wall expression.
49	Mr Parsons considers that the building design represents the emerging character and Mr Biacsi described the proposal as engaging and contemporary. Mr Biacsi also considers that the design has acknowledged that it will have a visual presence and has employed techniques which seek to moderate the visual impact of the building on its immediate surroundings. Mr Parsons considers that the vertical fins would provide solar shading to the glazed curtain wall and that there could be a condition on the glazing type in terms of reflectivity and transparency. 
50	With respect to the small section of green wall on the Porter Street façade at levels 1 and 2, it was his view that these did not make sense and should be clear glazing instead. Mr Parsons considers that the use of the wintergardens is a way of keeping the façade ‘clean’, that the curved walls will help with wind mitigation, that the proposal has responded to the architectural language of CV and CV1, and that the concept was sound.
51	On the other hand, Professor McGauran considers that the building is effectively presenting as a 9 storey commercial building with a materiality of high reflectivity. He considers that the fins will make the building read an extra 1.5 metres wide and that the proposal was not fully resolved, such as where fins were placed in front of wintergardens (e.g. at apartments 4.03, 4.05, 4.06, 5.03, 5.05, 5.06, 6.03, 6.05, 6.06, 8.04 and 8.05) and living room access to terraces (e.g. at level 7). Professor McGauran also considers that the wintergardens would emphasise the impression of the building being a smooth object lacking grain. 
52	Mr Gallagher lives in an apartment at 8 Monteath Avenue and submitted that there has been no evidence provided on the level of reflectivity of the façade. Excessive reflectivity was a concern echoed by Ms Christou and Mr Rappos who reside on the north side of Harold Street. Professor McGauran considers that due to a new requirement in the Building Code of Australia which caps reflectivity to 20%, this would be a highly reflective building. 
53	The site is oriented approximately 45 degrees to north meaning that the north elevation nominated on the plans is actually a north west elevation, the south is south east, west is south west, and the east is north east. This off-set orientation is significant in terms of understanding how the building façades will obtain solar access throughout the year. It is also significant in understanding what impact the fins will have on the building’s energy performance throughout the year. 
54	We consider that the fins may produce an unwarranted amount of shading to the façade in the cooler months when shadow angles are more oblique, less so than in the warmer months. In the absence of any solar angle studies we are unable to be persuaded that the fins will serve more than a decorative element to the building façade. Proper solar angle consideration needs to be given to any shading elements in this respect if a curtain wall expression is to be pursued, and a revision of the design may conclude that adjustable awnings or horizontal screens may be more suited to these orientations. 
55	Despite the support given by Mr Biacsi and Mr Parsons to the proposed building, we consider that the building has been sculpted in a way to reduce urban grain and produces a cohesive yet singular (monolithic) reading of the tower form. While the design may be an acceptable quality in form-making, it is the execution in materials, specifically the curtain wall and fin expression, which we consider is a poor urban design outcome for this location and context. 
56	Whilst we accept submissions and evidence that the building is responding to the nearby CV and CV1 buildings, it does little to provide a transition to the residential areas to the north west and north and is misguided. This is an opportunity to strike a balance and provide a transition in design terms between the commercial architectural expression of the CV and CV1 buildings and the residential low rise to the northwest and north. 
57	We consider that glazed curtain wall buildings are problematic for several reasons. Firstly, they are difficult to execute as climate responsive buildings without significant façade shading appropriately placed in solar angle terms, or sophisticated double skinned facades (as opposed to double glazed). As no ESD evidence has been provided we are not persuaded that this building will be an appropriate response and do little to address key policies in State and local policies regarding lowering emissions from buildings and reducing the urban heat island effect. 
58	Secondly, we find that the architectural expression is one of a commercial building and inappropriate for the GRZ4. 
59	Thirdly, as no wind evidence has been provided, we are not persuaded that wind can be addressed solely through a permit condition or that a major redesign of the building form may be required. 
60	Fourthly, the smoothness of the building produces a lack of urban grain, in stark contrast to the low-rise residential area to the north, although we accept it may be more appropriate as it faces the buildings to the south of Porter street in the CZ1. 
61	We consider that the materials schedule specifying silver and dark grey glass could produce a heaviness to the tower that will be highly visible from the near and immediate environs. The specification of bronze, black and silver metal finishes are also of concern. When coupled with the extensive glazing, this building will be highly reflective from near and far. The high visibility of the proposal will be exacerbated by the height, form-making and materials selection. 
Ground level interface and activation to Porter Street
62	Professor McGauran states that approximately 500 residents have Porter Street as their front door and that it is ‘incredibly important’ to address this issue in the Porter Street interface and public realm contribution. The pedestrian connection within the C1Z on Porter Street has become a key pedestrian route assisted by the through-block link at CV which he considers cannot be ignored. He also considers that there is a nexus between placemaking, amenity and sunlight to public spaces. Both Mr Parsons in evidence and Ms Brennan in submission stated that any taller building will overshadow Porter Street due to the orientation of the site. 
63	We accept that almost any tall building will overshadow Porter Street and that there are no policies or controls in the Planning Scheme specifically addressing this question. This can be contrasted to the controls applying to the Kew Junction and Glenferrie Activity Centres where there are general requirements that development should not overshadow public spaces and private open spaces between 11am to 3pm at the equinox. Whilst we do not support Professor McGauran’s contention that an important reason for lowering the height of the building is to lessen overshadowing impacts, reducing the height to approximately 20 metres will have a consequential benefit of mitigating overshadowing and wind impacts. 
Internal amenity
64	The application benefits from the transitional arrangements concerning Clause 58 and apartment design. Given our decision not to refuse the application but instead give the Applicant the opportunity to prepare amended plans, we consider that any new proposal should achieve compliance with the requirements of Clause 58 and ESD policy. Consequently, the following detailed comments will, to some extent, be of limited relevance given the redesign that will be required to respond to the modifications we set out later in our reasons. However, our comments on these individual aspects of internal amenity may provide some additional guidance in that redesign.   
Storage
65	The title (first) sheet of drawing set dated 21 March 2019 states that there is a total of 45 storage cages provided in the carparks at ground, basement 1 and basement 2 levels. The table on the subsequent two sheets nominate where the storage cage allocations are. In these tables only 43 storage cages are allocated. There is a total of 58 apartments, which means that there are 13 (or 15) with no additional storage spaces. 
66	It is not clear to us, but it may be that there is storage provided within apartments where no storage cages have been nominated. This will need to be considered in any redesign. 
Corridors
67	Professor McGauran considers that the corridor lengths pose challenges in general and that the corridors at levels 1 and 2 have a length of 44.4 metres, which is unacceptable. We agree with him and consider that an unbroken length of corridor of approximately 44 metres is problematic due to the reliance on artificial lighting for residents, even though there could be an opportunity to provide natural light sources from both ends. We are confident this issue can be addressed in any redesign.
Apartment layout
68	The apartments are generally set out in an acceptable layout with some exceptions. Most apartments have bedrooms with sizes that are generally acceptable even though they are smaller than the Better Apartment Design Standards (BADS). However, in apartment 3.02 both bedrooms have room sizes of 3 metres x 3 metres and we find this is not an acceptable outcome. As there are no living room dimensions given in this apartment we are uncertain whether one of the bedrooms could be enlarged.  
69	We note that the position of bedrooms proximate/ adjacent to the lift core in apartments 8.05, 7.05 and 4.01 are potentially unacceptable and find that an alternative design is warranted due to noise disturbances to residents in these sensitive spaces. 
70	For the same reasons, we note that the location of the bedrooms in apartment 1.01 above the at-grade open loading bay below, is also a potential for noise disturbance both for residents as well as the neighbours at 8 Monteath Avenue. We find this arrangement unacceptable.
71	We agree with Mr Biacsi that the location of the kitchens in apartments 1.09, 2.09, 4.03, 5.03, 6.03, 1.04, 2.04, 3.04, 4.04, 5.04 and 6.04 should be revised so there is a greater opportunity for natural light sources as well as a more desirable living room layout. As shown, these kitchens are located so that they will rely entirely on artificial lighting and ventilation.   
72	We also agree with Professor McGauran that the obscured glazing to the bedroom in apartment 1.05 with a light court is unacceptable. This apartment is in the podium and the external bedroom wall is located directly on the boundary of the title.  
73	The highlight windows to the north east façade in bedrooms and living rooms are also a concern and we agree with Professor McGauran that this will be an undesirable condition for the habitable room along this façade.
Daylight
74	In addition to Mr Biacsi’s recommendations above in paragraph 71, we also agree with Professor McGauran that levels 1 to 3 should be redesigned to improve daylight to all apartments. No daylight evidence has been provided and we are not persuaded that an acceptable level of daylight amenity will be achieved. 
75	In apartment 3.04, access to daylight for the living room will be affected by the building line over (from apartment 4.04 and above) and we remain unconvinced that there will be an acceptable level of daylight to this area.  
76	Mr Parsons recommended that the ‘rear’ north east podium apartments facing the decked car park should be improved by cut-outs in the level 2 and 3 floor slabs to admit more light to lower floor balconies. Professor McGauran considers that because these north east apartments facing the car park will always be on display, it is likely that blinds (whether solid or translucent) will always need to be down for privacy reasons.
77	Apartments 1.07 and 1.08, and 2.07 and 2.08 above these have a green wall screen in front of a ‘snorkel’ bedroom window. We find that this has the potential to create unacceptable daylight conditions to these habitable rooms.
Wintergardens and balconies
78	The proposal relies on the provision of wintergardens for private open space to 24 of the apartments ranging in sizes from 8 to 12 square metres and located on all façade orientations. 
79	Professor McGauran noted that operable windows were not shown on the elevations and that details of how the wintergardens would work were not clear. For example, the wintergarden to apartment 4.04 is shown as a conventional balcony (on the circulated plans of 27 February 2019) but altered to a balcony on the plans dated 21 March 2019. Professor McGauran doesn’t understand why wintergardens are being used as they restrict daylight to habitable spaces and limit an open to sky private open space for residents.  
80	Whilst we do not necessarily agree that wintergardens are unacceptable, if they are to be provided as private open space then the Architects should consider providing more generous sizes as the minimum sizes are in some cases too small to be usable. 
Off-site impacts to neighbouring and nearby properties
81	As stated above, we find the off-site amenity impacts from the loading bay to the neighbouring property at No. 8 Monteath an unacceptable outcome and see no reason why the building basement cannot be redesigned to contain loading within the building. 
82	Shading studies for the apartments at CV and CV1 show that the building at 9 storey results in overshadowing which will alter the amenity of the existing apartments. We consider this a largely unavoidable consequence of closely spaced taller buildings, although as we have previously observed, lowering the building height will as a consequence mitigate some of these impacts.
Car parking and access
83	Inadequate carparking and traffic were raised in submissions opposing the application. According to Mr Walsh, the application proposes 61 spaces with the shortfall of 16 spaces made up of 7 resident spaces and 9 spaces for the food and drink premises. No resident visitor parking is required pursuant to Clause 52.06. 
84	The shortfall in 9 spaces for the food and drink premises is primarily for customers and we have no objection to that waiver given the location of the site within a MAC where customers are likely to be within the activity centre for a multiplicity of purposes. 
85	We would not necessarily object to two apartments not being provided with any parking given the location within a MAC and the strong policy support for limiting car-based travel in locations such as this with easy access to trams, trains and buses and where walking and cycling are practical and convenient alternatives to car-based travel.
86	We observe that a reduction in the height of the building will inevitably result in a lower car parking requirement and it may be that there will be no necessity to seek a waiver of resident parking. 
87	We support the location of access point to the site and note that it has been moved westward to avoid the street tree (Tree no. 4). However, as we discuss later, we do not support the location of the loading bay and it should be relocated to the basement. 
Landscaping and retention of the street tree
88	A landscape plan has been prepared by Etched and Mr Dimitropoulos attended to explain the proposal. Landscaping is limited to a narrow buffer strip along the north eastern and north western boundaries and is constrained both by the building footprint and the trees on adjoining sites. There are also some smaller areas of planting adjacent the vehicular entrance, on the roof and on some terraces. 
89	Whilst we accept the limitation imposed by the building footprint and the plants on the adjoining sites, we are not persuaded that there is enough space for planting along the north western and north eastern boundaries where existing and future residential amenity needs to be enhanced. We have previously discussed increasing the setback to the multi deck carpark which has multiple benefits including improving residential amenity and allowing for future equitable development. The large trees along this boundary overhang the review site by up to 5 metres and a greater setback also allows for the retention of more of the canopy of these trees along with supplementary planting on the review site. 
90	Changes we are recommending to the building, including additional ground level setbacks and relocation of the loading bay, will increase opportunities for landscaping along these boundaries. 
91	Although there was some criticism of landscaping along Porter Street, we accept the submission that Porter Street is a more robust environment although we note with approval the low-level landscaping that has taken place on the south side of Porter Street. 
92	Street tree No 4 is a mature English Oak which although damaged is to be retained. Mr Galbraith advises that the basement has been redesigned to limit incursion into the Tree Protection Zone and he advises that the setback of the basement and provision of an irrigated garden bed will mean that the oak should respond very well to this. We accept his evidence on this point. 
93	Tree 3 is an immature Crepe Myrtle which is proposed to be removed. Council opposes its removal, but we are at a loss to understand why given its small size and condition. We would support its removal and replacement as part of a new landscaping theme along the frontage. 
Equitable development
94	The ability to achieve or maintain equitable development rights on adjoining sites, and a more efficient use of land, varies depending on specific circumstances. For example, on wider and larger sites it is often submitted that a development set back at least 4.5 metres from site boundaries allows adjoining sites to be developed with similar setbacks, thereby providing an equitable sharing of development potential. On narrower sites, the ability to maintain development potential on adjoining sites is often achieved by constructing blank walls to boundaries so that there is no necessity for future development on adjoining sites to be set back to protect the amenity of dwellings within an already constructed building. 
95	We have already discussed the small setback to the northeast boundary and why we find that unacceptable for the internal amenity of future apartments. To achieve an equitable 9 metre separation between opposite balconies and windows on adjoining sites, it is necessary for each building to be setback at least 4.5 metres from the common boundary. The proposed building is only setback 2.5 metres for the ground, first and second levels. On the assumption that a 9 metre separation is a desirable minimum, it will require any new building on the car park site to be back at least 6.5 metres to achieve acceptable separation. In making these comments, we acknowledge that the carpark is a large site and may be more capable of accommodating most of a 9 metre separation distance and we also acknowledge that a 9 metre separation may not always be necessary or desirable. However, it seems to us that increasing the setback on the review site to at least 4.5 metres should be provided. Increasing the setback also has the added benefit of improving the amenity of these north eastern facing apartments until the carpark is redeveloped. 
96	The approach taken to the south eastern interface to the at-grade carpark boundary is different with a wall located on the boundary for the first three levels. We support such an approach as it allows any future building on the carpark to abut the review site to maximise floorspace. However, we do not support the provision of any windows facing this boundary. Instead we consider that the first three floors should be blank, perhaps with patterning, and that the apartments at this end of the building be reconfigured so that they have a north east and south west orientation without any need to rely on light from the site to the south east. 
Wind Effects
97	A Wind Impact Statement prepared by VIPAC Engineers and Scientists was tabled on Day 5 of the hearing. The assessment uses the Beaufort scale in its assessment which is based on observation rather than accurate measurements. The report concluded that the wind levels would be within walking, standing and sitting criterion in the relevant locations. The report did recommend an increase in balustrade heights on high level terraces. We find that a more appropriate method as suggested by Professor McGauran would be to use a wind modelling method as recommended by noted expert Dr Melbourne. 
98	We note that Professor McGauran considers that the building would be likely to produce undesirable off site wind impacts at Porter Street as well as to the terraces, that the fins will increase vertical down drafts and that the sheer curtain walls will also cause downdrafts. However, it appears he did not have the benefit of the wind impact statement when he prepared his evidence statement.  
99	The wind assessment will need to be revised based on any redesign, but we also expect that lowering the building to 20 metres will likely produce a building with few unacceptable wind impacts. 
Noise impacts
100	An Acoustic Assessment prepared by Acoustic Logic was tabled on Day 5 of the hearing. The Applicant sought acoustic advice as to the noise impacts of the loading bay which found that the predicted noise impacts would be considerably lower than 47dB and that this level could be mandated by a permit condition (in line with EPA SEPP N-1 Noise limits).
101	We note that the modelling was based on the loading bay only being used between 7am and 10pm, that a maximum of one loading vehicle will use the bay each hour, that loading will be limited to a small rigid vehicle and that a 2 metre high solid imperforate barrier is to be erected along the north west and north east boundaries. 
102	Whilst we accept that the assessment reveals that noise levels can be within acceptable limits based on the assumptions and recommended acoustic treatments in sections 6 and 7, we are not persuaded as to the practical operation of the loading bay and the way in which vehicles utilise the loading bay and the associated carspaces.  We consider that a more appropriate location would be in the basement where noise is not an issue and where there would be no restriction on the hours of operation. 
Conclusion and decision
103	We acknowledge that the site has strong strategic support in planning policies for a mixed-use development and increased housing yield given its location within a major activity centre.
104	Consequently, it is not a question of whether the site can be developed for a more intensive mixed-use development. Instead it is a question of whether the design is acceptable having regard to the site context and the specific planning controls and policies applying within the centre. 
105	Based on our assessment of the proposal having regard to the submissions and evidence presented at the hearing, we have not been persuaded that the current proposal is an acceptable response to the site context or the policy outcomes sought for this major activity centre, and that it does not provide a net community benefit in its current form. 
106	Although the Applicant has been working over many months to achieve an acceptable development, we consider that it requires further significant changes before we could consider granting a permit. Whilst we could have refused the application, that seems to be counterproductive and wasteful of time and resources given the unusual circumstances we set out in paragraph 20 and when we have now formed a view about how the proposal could be modified to warrant approval. 
107	In the next section we have included a list of recommended modifications which need to be made to the proposal we have considered. It is up to the Applicant to decide whether it will take up the offer to prepare amended plans. These recommendations include substantially lowering the building height and increasing setbacks from adjacent properties, redesigning floor layouts and providing evidence of wind effects and internal daylight to apartments. Drawings need to show operable windows and height of lift overrun and other roof top services such as solar panels. 
108	We emphasise that even if these changes are made, we may not approve the development if we are not satisfied that it results in an acceptable development. However, they are changes that may result in one that achieves a more acceptable balance when assessed against the relevant objectives and policies contained in the Boroondara Planning Scheme. 
RECOMMENDED MODIFICATIONS
109	A new set of plans is to be prepared based on the substituted plans but with the following further changes:
a	Reduced in height to not more than 20 metres above street level plus roof top services
b	The building setback to the north east carpark boundary increased to not less than 4.5 metres.
c	Dwellings 1.05 and 1.10 combined into one dwelling with a dual outlook to both the north east and south west. No windows are to face directly onto the Dan Murphy car park, but a light court can be provided, if necessary, to give light to internal rooms.
d	The setback to the northwest increased to match those shown on the application plans.
e	Replacement of winter gardens with balconies of sizes and dimensions commensurate with the size of the apartments.
f	All internal dimensions of rooms and corridors must, as a minimum, meet those contained in Clause 58. 
g	Redesign/relocation of loading bay to the basement.
h	Keep the basement footprint outside the TPZ of Tree 4 and redesign basement layout. 
i	Revised palette of materials and finishes.
j	Storage provision to all apartments.
k	Revised architectural expression: abandon a curtain wall building and explore a building with more grain and solid balconies to produce horizontal rhythm. 
l	Provision of shading devices but not blades. 
m	Wind and daylight reports (Wind effects must be modelled and not on Beaufort scale).
n	A revised landscape proposal.
o	A sustainable management plan.
110	Our expectation is that changes will result in a reduction in the number of dwellings, with consequential flow on benefits in terms of car parking and traffic generation. 

J A Bennett
Presiding Senior Member		Lorina Nervegna
Member