VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P87/2020
Permit Application no. P378/2019	
CATCHWORDS	
Section 77 of the Planning & Environment Act 1987; Port Phillip Planning Scheme; General Residential Zone Schedule 1; Special Building Overlay Schedule 1; Construction of a three-storey apartment building; mandatory garden area requirement; neighbourhood character; amenity impacts; flooding	

APPLICANT	Goldfields Elwood Pty Ltd	
responsible authority	Port Phillip City Council	
Referral Authority	Melbourne Water	
RESPONDENT	Mark and Penny Essing, Paul Rieniets, Warren Pertzel and others	
SUBJECT LAND	1-3 Foam Street Elwood	
WHERE HELD	Melbourne	
BEFORE	Katherine Paterson, Presiding Member
Ann Keddie, Member	
HEARING TYPE	Hearing 	
DATE OF HEARING	22-26 June 2020 by electronic platform	
DATE OF ORDER	5 August 2020	
CITATION	Goldfields Elwood Pty Ltd v Port Phillip CC [2020] VCAT 831   	

Order
Permit granted
1	In application P87/2020 the decision of the responsible authority is set aside.
2	In planning permit application P378/2019 a permit is granted and directed to be issued for the land at 1-3 Foam Street Elwood in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	The construction of a three storey building to contain up to 13 dwellings; 
•	To construct a building and to construct or carry out works with a special building overlay.  

Katherine Paterson		Ann Keddie	
Member		Member	

Appearances
For applicant	Mr Paul Connor, QC together with Ms Jennifer Trewhella, of counsel, instructed by Minter Ellison Solicitors.  They called the following expert witnesses:
•	Mr John Glossop, Town Planner, Glossop Town Planning;
•	Mr David Beaton, Traffic Engineer, Quantum Traffic; and
•	Mr Tim Vernon, Landscape Architect, CDA Design Group Pty Ltd.	
For responsible authority	Mr Jock Farrow, Town Planner and Ms Kathryn Pound, Town Planner, Port Phillip Council	
For referral authority	No appearance	
For respondents	Mr Warren Pertzel, Mr Paul Rieniets, Mr Mark Essing and Ms Penny Essing all in person.  	

Information
Description of proposal	Construction of a three storey apartment building to contain 13 dwellings.  Car parking and services are to be provided within a basement accessed via a widened crossover to Foam Street.  The architectural style is contemporary and includes a flat roof and angled parapets, utilising a variety of materials and finishes.  	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Port Phillip Planning Scheme	
Zone and overlays	General Residential Zone Schedule 1 and Special Building Overlay Schedule 1.  The site is also included within an area of Cultural Heritage Sensitivity.  	
Permit requirements	Clause 32.08-6 – Construct two or more dwellings on a lot; and
Clause 44.05-2 – Construct a building and to construct or carry out works.  	
Land description	The subject site comprises of two allotments with a combined area of 1159 square metres.  A single storey dwelling and associated outbuildings are located on each lot, accessed via two separate crossovers to Foam Street.  	
Tribunal inspection	18 June 2020   	

Reasons
What is this proceeding about?
1	Goldfields Elwood Pty Ltd wish to construct 13 dwellings on land at 1-3 Foam Street Elwood.  Following Council’s decision to refuse the application, they have requested that the Tribunal review this matter.  
2	Port Phillip Council refused the application on a number of grounds, which have been revised following circulation of the amended plans.  In Council’s view, the amended proposal remains inconsistent with the character of the area.  
3	A number of residents share Council’s concern with respect to neighbourhood character and in addition, submit that it fails to meet the mandatory garden area requirement of the Port Phillip Planning Scheme.  They also consider that the proposal will unreasonably affect the amenity of adjoining properties through overlooking, overshadowing and increased traffic, and that the development would not allow the retention of a large Coral tree located at the rear of the property.  Finally, they are concerned that the development will exacerbate the historic flooding problems of the area.  
4	During the hearing the permit applicant submitted a number of revised documents, which sought to respond to the issues raised by the parties.  Whilst it was described by resident objectors as ‘planning on the run’, given the changes were relatively minor and were of assistance to the Tribunal, we allowed the tabling of the documents.  We also provided the opportunity to provide a further written response to the material following the hearing.  We have had regard to the submissions made in response to our order of the 26 June 2020 in our decision.
What are the key issues?
5	Having considered all the submissions and evidence and inspected the subject land and its locality, we consider that the key questions to be determined by the Tribunal in this proceeding are:
•	Does the proposal comply with the mandatory garden area requirements of the scheme? 
•	Is the construction of an apartment building on this site consistent with planning policy?
•	Is the proposal respectful of the neighbourhood character?
•	Does the proposal create unacceptable amenity impacts? 
•	Will the proposal exacerbate the existing flooding problems within Foam Street?
•	Is the proposed landscape acceptable and does it appropriately allow for the retention of the large Coral tree? 
•	Is the impact of the proposal on existing solar facilities acceptable?
Summary of findings
6	The Tribunal finds that with the changes we have required, primarily to setbacks, this development will be generally consistent with the outcomes envisaged by planning policy and is an acceptable response to the neighbourhood character of the area.   With the changes we have made, we are also satisfied that the proposal will not unreasonably affect the amenity of adjoining properties, and has responded to the requirements of the Special Building Overlay.   As a consequence, we consider it appropriate for a planning permit to be issued for the development.  Our reasons follow.  
Does the proposal comply with the mandatory garden area requirements of the scheme?
7	Clause 32.08-4 of the Port Phillip Planning Scheme states that an application must provide the minimum garden area requirement for the site, in this case 35%.  The garden area plan submitted with the revised plan calculates the garden area to be 35.5%.  
8	Clause 73.01 defines ‘Garden Area’ as:
Any area on a lot with a minimum dimension of 1 metre that does not include: 
a)	a dwelling or residential building, except for: 
•	an eave, fascia or gutter that does not exceed a total width of 600mm; 
•	a pergola; 
•	unroofed terraces, patios, decks, steps or landings less than 800mm in height; 
•	a basement that does not project above ground level; 
•	any outbuilding that does not exceed a gross floor area of 10 square metres; and 
•	domestic services normal to a dwelling or residential building; 
b) 	a driveway; or 
c) 	an area set aside for car parking
9	At the commencement of the hearing, Mr Rieniets submitted that the proposal as shown on the substituted plans did not comply with the mandatory garden area requirement of the scheme, as, in his calculation, the area included decks which exceed 800mm in height above ground level and sections of the basement where it projects above ground level.  This non-compliance with a mandatory provision of the scheme would mean that the Tribunal could not grant a permit for the development. 
10	In response, Council advised that it had undertaken a detailed assessment of the proposal, and concluded that it did comply with the garden area requirement, as the decks included in the garden area calculation scale at less than 800mm above natural ground level and Section DD shows that the section of the basement that has been included in garden area is constructed below ground level.  Mr Glossop advised that he had undertaken a similar assessment of the proposed garden area and was satisfied that the mandatory requirement had been achieved.  
11	The Tribunal initially shared Mr Rieniets’ concern.  In particular, the deck associated with dwelling 0.05 appeared to have a finished floor level of approximately 1.1 metres above, the spot level of RL1.9 provided at the south western corner of the site.  
12	The permit applicant submitted a survey plan of the site, which shows that the natural ground level of the site in the vicinity of the deck has a natural ground level varying between 2.12 and 2.17 metres Australian Height Datum (AHD).  Section CC of the drawings indicates that the decks will have a finished floor level of less than 800mm above natural ground.  The ground floor level is required by Melbourne Water to be 3.0 metres AHD, meaning that a step or steps will be required between the ground floor and adjacent deck in some locations.  Whilst this is a matter that will be addressed in detail under the building regulations, we have required the plans to be amended to show the location of steps where necessary.  These steps may marginally reduce the garden area provided, but we are satisfied that the increase in the front setbacks we have required will mean that the provision of garden area will remain compliant.  
13	During the hearing, Mr Connor suggested a condition could be added to require the applicant to provide a survey plan confirming that the height of the decks did not exceed 800mm above natural ground level.  We do not consider this ‘belts and braces’ approach necessary.  When endorsed, the plans will become enforceable and the permit applicant will be required to construct the building to the levels as shown on the endorsed plans.  
Is the construction of aN apartment building on this site consistent with planning policy?
Planning Policy Framework
14	Clause 16.01-2R of the Port Phillip Planning Scheme seeks to ‘facilitate increased housing in established areas to create a city of 20 minute neighbourhoods close to existing services, jobs and public transport.’

15	As can be seen in the above extract from Melways Online, the subject site is within an area that can be described as ‘close to existing services, jobs and public transport’.  However, there was some debate at the hearing as to the site’s distance from activity centres, including Ormond Road (known as Elwood Village) and Elsternwick (located within the City of Glen Eira).  
16	The Port Phillip Planning Scheme does not provide a clear definition of the Ormond Road Activity Centre.  However, using the land that has been included within the Commercial 1 Zone as a guide to the extent of the centre, the subject site is located approximately 450 metres (a six minute walk) from the edge of the centre.  

17	The Elsternwick Activity Centre is defined as a Major Activity Centre (MAC) in Plan Melbourne, and an Urban Village within the Glen Eira Planning Scheme.  The MAC is shown within the Glen Eira Planning Scheme to commence at the intersection of Glen Huntly Road and Nepean Highway, approximately 600 metres (an 8 minute walk) from the subject site.  
18	The Elsternwick Railway Station is located 950 metres (a 12 minute walk) from the site.  Tram services operate along Brighton Road with the nearest stop located 650 metres from the site.  In addition to these services, the site is located in close proximity to bus services which include a free community bus service connecting the site with St Kilda and South Melbourne and bus route 246 which operates between Clifton Hill and Elsternwick.  Due to its proximity to these public transport services, it is a site that has been included within the Principal Public Transport Network (PPTN).  

19	It is a site that we find is strongly supported by the planning policy framework for more intensive housing forms.  
Local Planning Policy
20	Clause 21.01 of the Port Phillip Planning Scheme provides a vision statement for the municipality, which includes creating:
A city of distinct neighbourhoods where an understanding of local character and heritage is an important element of a sustainable future;
21	Clause 21.01-2 of the scheme contains strategic objectives which seek to implement Council’s vision, which include:
•	Create attractive residential areas which are desirable places to live, and where the impacts of new land uses on residential amenity are minimised. 
•	Provide significant opportunities for housing growth within designated strategic locations which offer greatest accessibility to shops, services and public transport. 
•	Limit development within established residential areas to that which respects existing neighbourhood character and heritage values.
22	Clause 21.04-1 indicates that to meet the housing needs of the population of Port Phillip, the city has the capacity to accommodate a further 16,300 dwellings by 2030.  To guide the location of the new housing, the planning scheme has divided the municipality into various categories to growth.  These include areas for incremental and limited growth, outlined as follows at Clause 21.04-1 of the scheme:
2.1	Limit new residential development within established residential areas to achieve:
•	Incremental residential growth through well designed medium density infill development:
•	On sites with frontage to a Main Road adjacent to thei [sic] Principle Public Transport Network (PPTN).
•	Within areas proximate (approx. 400m distance) to a major activity centre, which have been identified by an approved Structure Plan or Urban Design Framework as having capacity for development based on a diverse neighbourhood character. All new development must be in accordance with the preferred character statement for the area.
•	On sites fronting Ormond Road and Glen Huntly Road, proximate to the Elwood Junction and Elwood Village activity centres.  The height, scale and massing of new development must be in accordance with the Design and Development Overlay and, where applicable, the Heritage Overlay.
•	Limited residential growth in remaining residential areas (outside a Heritage Overlay), being locations which have a consistent neighbourhood character, or areas which do not offer proximity to a major activity centre or the PPTN.  New medium density housing will not be encouraged within these areas.  All new development shall respect the prevailing neighbourhood character of the area.  
23	There is a dispute between parties as to what category applies to the site.  Council submits that the review site falls in between the incremental and limited change area definitions of the scheme.  
24	Mr Glossop’s evidence is that it is inappropriate to come up with an additional category for the site.  Instead a ‘best fit’ approach should be taken.  He says that the description provided for the incremental change area should not be read as an exhaustive list and that the zoning of the land provides guidance.  The review site has been included within a General Residential Zone, which under Clause 21.04 is applied to sites in established suburbs identified for Incremental Residential Growth in Strategy 2.1.  The Neighbourhood Residential Zone is to be applied to established residential areas identified for Limited Growth in Strategy 2.1.  The purposes of the General Residential Zone Schedule 1 include:
•	To encourage a diversity of housing types and housing growth particularly in locations offering good access to services and transport.
25	We agree with Mr Glossop.  Whilst the site is not on a Main Road, it is proximate to both the Elsternwick Major Activity Centre and the Elwood Village Activity Centre as well as within the PPTN, and as such does not fit within the description for the limited residential growth areas.  We note that the area between the Elwood Canal and the Elwood Village Activity Centre, an area which arguably has the same or better access to services than the review site, has been included within a Neighbourhood Residential Zone Schedule 5.  The fact that the area to the north of the Canal has not been included within a Neighbourhood Residential Zone is one indication that the site is within an area identified for change. 
26	A further indication that the site should be classified as within an incremental change area is the definition of Incremental Residential Growth Areas provided at Clause 21.04 of the scheme:
Established residential areas where there is justification for some further medium density infill housing, based on frontage to a main road adjacent to the PPTN and/or proximity to a Major Activity centre, and where there is an existing diverse neighbourhood character capable of accommodating change.  
27	For the reasons we outline below, we find that the neighbourhood character of the area is diverse.  We find that it is an area capable of accommodating change, evidenced in part by the number of new dwellings that have been recently constructed in the area, and by the height controls imposed on the review site, which allow developments of three storeys in height. 
Is the proposal respectful of the neighbourhood character?
28	The purposes of the General Residential Zone Schedule 1 seek to ensure that development respects the neighbourhood character of an area.  Clause 55.02-1 requires the design of medium density development to either respect the existing character of an area, or contribute towards a preferred character.  
29	Clause 21.05-2 states:
The established residential areas in Port Phillip are distinguished by their low rise urban form.  These areas are experiencing pressure from new development due to strong demand for new dwellings, and in particular for medium and higher density housing. This needs to be carefully managed to ensure that the established neighbourhood character is not eroded.
30	Strategies to achieve this objective include:
… Require new development to respect the character of the local area, having regard to the neighbourhood character descriptions in the Design Manual, or preferred character statements in a Design and Development Overlay, approved Urban Design Framework or Urban Design Policy.
31	It was common ground that the review site is included within Area 4 in the Port Phillip Urban Character Study.  The preferred character statement was not provided to the Tribunal. The Port Phillip Design Manual notes ‘building style’ as a very important character element of the area and describes the dominant style as buildings which display the following characteristics:
•	from the 1920s to 1940s, 
•	one, two and three storey in height, 
•	constructed in brick or masonry, 
•	with pitched or terracotta roofs, 
•	less than 5 metre front setback, 
•	limited heritage qualities, 
•	visible gardens, and 
•	low fences.  
32	Both planning policy and Clause 55 require the development to respect the existing neighbourhood character of the area.  The ‘vision’ includes maintaining a distinctive suburban character, including ‘large front and rear setbacks’, established gardens and low rise building form.  It seeks new development that responds to its ‘consistent architectural character’ and ‘predominance of Federation and interwar dwellings with hip or gable roofs’. As the Tribunal has often observed, respect and response does not mean replicate or mimic.  Mr Glossop took the Tribunal to Planning Practice note 43 ‘Understanding neighbourhood character’ which notes:
Respecting character does not mean preventing change. The neighbourhood character standard is not intended to result in the replication of existing building stock or stop change.
33	Council acknowledged that the guidance within the planning scheme is relatively general, and submits that this heightens the importance of the existing character of this part of Foam Street. Our observation of the character of the neighbourhood between the canal and Glen Huntley Road is that it is diverse.  It includes two and three storey apartment buildings, as well as a variety of housing types, styles and roof pitches.  We conclude that Mr Glossop is correct when he describes the area as one where diversity of form, scale and typography effectively define its character.  
34	Both the bold presentation of 1A Foam Street and the polite response of the large single dwelling at 2 Foam Street form part of the existing character of the neighbourhood.  So too, when assessing the review site, does the presence of the existing and approved multi-unit dwellings along Glen Huntley Road and St Kilda Street. 
35	As a consolidated site, the proposal presents a considerable increase in the street frontage, and thus relies on design techniques such as variation in setbacks, breaks in the massing and diversity of material selection to moderate the scale of the proposal and provide an appropriate response to the street context.
36	Whilst Council accepts the proposed street setback, it maintains that the proposed pitched parapets are an inadequate response to the prevailing roof forms.  It says that the break between the two sections of the building is insufficient to break down its bulk, and thus does not retain or reinforce either Port Phillip’s fine grained street pattern or the rhythm of the solid to void along the street.
37	The front setback is staggered between 3.5 and 5.57 metres.  Whilst these are less than those of the buildings to be demolished, we give little weight to the existing setbacks in an area where change is encouraged. Directly opposite the review site, the setbacks vary between 1.9 metres to the garage of 4 Foam Street to 7 metres to the angled wall of 6 Foam Street, whilst the adjoining buildings at numbers 1A and 5 are setback around 4 and 7 metres respectively.
38	We acknowledge the range of street setbacks, but are not persuaded that the setbacks proposed are appropriate for a building of this scale in terms of neighbourhood character.  This is in part because of the proposal’s mass and resultant visual bulk, together with the location of the uppermost floor, identified by Council as prominent in oblique views.  We consider that an increase in the front setback to around 4.2 metres to align with that of 1A, maintaining the stepped approach to the two parts of the building as proposed, will assist in accommodating what is a relatively large new development within this mixed streetscape.  It will improve the relationship of the built form to that on 5 Foam Street, whilst still allowing an efficient use of the site. We note that the apartment layout at all levels would accommodate an 800mm reduction, even if some reconfiguration within them is required.
39	The streetscape rhythm, identified by Council as an important characteristic of neighbourhood, has been disrupted in the immediate context by the construction of 1A on the rear of 142 Glen Huntley Road, and the close proximity of the built forms of 2 and 4 Foam Street.
40	Council is critical of the size and effectiveness of the 2.2 metre wide break between the two parts of the building identifying the foyer entry.  It says that it is an insufficient response to the rhythm of the street, which comprises frontages typically around 13 metres supporting detached dwellings of around 9 metres in width.  The consolidated review site is 29 metres wide.  Council submits that the 20 metre wide built form at ground level, which increases to 23 metres at first floor, disrupts this rhythm.  It supports the differentiation of the building into two parts, but says that the break is not large enough to be effective.
41	In a planning context that expects buildings that are of a scale and bulk that is different from the immediate neighbours, we find that the setbacks to the north and south, with the minor adjustments we have required, coupled with the differentiation of the building into two parts by both street setback and materiality, is an acceptable response to the rhythm of Foam Street.  As discussed above, the existing relationship between the built forms of 2 and 4 Foam Street, directly opposite the site, support this view. 
42	Council’s documents do not highlight the character of the public realm in Area 4.  However, we agree with residents that a strong character element of Foam Street is the canopy provided by the street trees, and note that this part of the street lacks three of the trees that distinguish the remainder of the street.  The applicant’s offer to replant at least two of the three street trees is made possible by the consolidation of the land and consequent rationalization of the crossovers will enhance the neighbourhood character.  Were council to plant the tree missing from the other side of Foam Street, the canopy would be repaired, as sought by the planning scheme.
43	We conclude that the proposal represents an acceptable response to the neighbourhood character of the area.
Does the proposal create unacceptable amenity impacts? 
44	Both Council and the objectors contend that the proposal will unreasonably affect the amenity of adjoining properties through overlooking, overshadowing and increased traffic.  We consider each below.  
Overlooking
45	Clause 55.04-6 of the scheme seeks to ensure that medium density developments are designed to ‘limit views into existing secluded private open space and habitable room windows.’  Importantly, the objective does not seek to prevent all possible views from a development.  Standard B22 seeks to limit views from a habitable room window, deck or balcony within 9 metres of a neighbouring habitable room window or secluded private open space.  The standard suggests treatments, including raised still heights, screening and opaque glazing, designed to prevent unreasonable overlooking of a neighbouring property, but all of which come at a cost to the internal amenity of a dwelling.  Therefore, care needs to be taken to ensure that these tools are applied judiciously.
46	Mr Glossop suggested that the days of the blanket use of obscure glazing are gone and that there are many methods which will prevent unreasonable overlooking of adjacent properties whilst ensuring an acceptable level of internal amenity for the future occupants of the dwelling.  These methods include angled louvres or shelves which prevent downward views into a neighbouring habitable room window or garden, but still enable upward views from a window or deck to the sky.  The Tribunal agrees with Mr Glossop that these more sophisticated alternative methods are superior to the blunt tools listed in the standard.  
North
47	Screening treatments have been applied to the northern habitable room windows and balconies, many of which we find are largely unnecessary as the windows in question will overlook a child care centre and a vacant site at 146 Glen Huntly Road.  
48	Whilst security concerns were raised with respect to residents overlooking the childcare centre, the planning scheme does not require the absolute prevention of such views. 
49	A planning permit has been granted for a three storey building on the vacant land at 146 Glen Huntly Road.  The plans for the development submitted by Council at the hearing show that the southern elevation of the approved building has highlight windows at the ground and first floor, with non-habitable room windows at the second floor, the exception being a window to the master bedroom of proposed dwelling 6, which is shown as unscreened.  This window is to be located 6.7 metres from the boundary, approximately 9.4 metres opposite the balcony for dwelling 2.02.  As such, if and when that development proceeds, there will be no requirement to screen the northern façade of the proposal on the review site to prevent overlooking of the approved dwellings on 146 Glen Huntly Road.  We have therefore imposed a condition deleting the screening measures to the northern façade, except for the planter boxes on the level 2 balconies as these will provide additional landscaping opportunities for the site.  
East
50	The eastern elevation shows that all east facing first and second floor habitable room windows are screened using obscured glazing, with the exception of those looking out onto the balconies of apartments 1.04 and 2.02. 
51	To the east of the site are two properties, both of which been developed with medium density developments.  The three-storey apartment building at 517 St Kilda Street has a car park immediately adjoining the subject site with the building setback approximately 11.8 metres from the boundary with the review site.  As such there is no need for overlooking measures to be applied to windows or balconies that overlook this property.  It is a similar situation for the three-storey apartment building at 515 St Kilda Street, which also has a car park at the rear with the closest dwellings setback approximately 11.6 metres from the boundary with the subject site.  
52	The two storey development at 519 St Kilda Street has areas of secluded private open space and habitable rooms which are likely to be overlooked by the proposed development.  
53	The architectural drawings include an overlooking key plan, which provides an assessment of the overlooking impact of the development on this property.
54	This diagram indicates that there will be no unreasonable overlooking from the balcony of 1.04 of 519, but that there is the potential for minor overlooking from the east facing living room window of 1.04.  As the windows are offset, the overlooking could be addressed through the use of a fin, angled to prevent views into 519 St Kilda Street, but still allowing views out.  We have therefore required as a condition of permit reduction in the height of the balustrade to 1 metre for the balcony to apartment 1.04 to enable views from the balcony, and the replacement of the obscured glazing for the living room window of 1.04 with a fin or blade, designed to prevent views into the secluded private open space and habitable room windows of 519 St Kilda Street. 
55	We agree a treatment to the eastern bedroom windows of apartment 1.03 and to the balcony of apartment 2.01 is required to prevent overlooking of 519 St Kilda Street.  The plans show a discrepancy.  The overlooking diagram on TP3-106 suggests that a mesh privacy screen, which is 25% transparent, is to be applied to both the windows and the balconies, however the eastern elevation shows the use of obscure glazing to the bedroom windows of Apartment 1.03 and the additional screen to the balustrade is not shown.  The eastern elevation should be corrected to show the use of the mesh screen to the bedroom windows of 1.03 as shown on TP3-106.  As it is a direct view between the two windows, whilst angled louvres, as preferred by Mr Glossop, would provide some daylight, they would need to be fixed to limit overlooking of the first floor window. We find that the proposed use of a mesh screen with 25% transparency is acceptable in this instance.  We also agree that fixed louvres may be an alternative in this situation, and so we have allowed for either measure to be used.
56	A planter box is proposed to the edge of the balcony of apartment 2.02, which may be enough in itself to prevent unreasonable overlooking of 519 St Kilda Road.  We have therefore required the applicant to submit a revised sightline diagram to demonstrate its effectiveness in preventing unreasonable overlooking from the balcony within 9 metres of the secluded private open space and habitable room windows of the properties at 519 St Kilda Road.  If the planter box is insufficient, a mesh screen as described on TP3-106 should be applied to the balcony to prevent overlooking.  
South
57	To the south of the site is the property at 5 Foam Street.  Council provided the Tribunal with the floor plan of this development.  These plans show that this dwelling has a series of north facing windows with an outlook towards the subject site, some of which provide light to hallways, which are not considered habitable rooms.  Clause 73.01 of the Port Phillip Planning Scheme defines habitable rooms as:
Any room of a dwelling or residential building other than a bathroom, laundry, toilet, pantry, walk-in wardrobe, corridor, stair, lobby, photographic darkroom, clothes drying room and other space of a specialised nature occupied neither frequently nor for extended periods.
58	Whilst the hallway windows provide additional light to the dwelling, they do not require protection from overlooking.  Where required, the plans show that the windows and balconies are to be treated using obscured glazing and a 1.45 metre balustrade/screen and planter box for the second floor balcony, and a 1.85 metre balustrade/screen for the first floor balcony.  Whilst we accept the approach taken for the second floor balcony, we consider that the approach taken for the first floor balcony and windows has not struck the right balance between protecting the amenity of the adjoining property and internal amenity of the proposed apartments.  We have therefore required the balustrade/screen to the first floor of balcony of 1.04 be lowered in height to 1.7 metres on its southern edge and the use of the mesh screen with 25% transparency applied to the first floor south facing habitable room windows of 1.04 and 1.05 in place of the obscure glazing proposed.  Both these techniques are consistent with the requirements of Standard B22. 
59	With the changes we have put in place, we are satisfied that the right balance will be struck between protecting the amenity of the adjoining properties and the internal amenity of each dwelling on the review site.  
Overshadowing
60	Two areas of concern were raised during the hearing with respect to overshadowing.  Firstly, the impact on the amenity of the secluded private open spaces of each dwelling, and secondly the impact on the solar panels on 5 Foam Street, discussed later in these reasons. 
61	Following our findings with respect to overlooking, it is clear that there are only two sensitive interfaces with the subject site, that being the properties at 519 St Kilda Road and 5 Foam Street.  The shadow diagrams submitted with the application indicate that the proposed development will cast additional shadow into the private open space of both properties.  
62	Clause 55.04-1 seeks to ensure that buildings do not significantly overshadow existing secluded private open space.  Standard B21 states:
Where sunlight to the secluded private open space of an existing dwelling is reduced, at least 75 per cent, or 40 square metres with minimum dimension of 3 metres, whichever is the lesser area, of the secluded private open space should receive a minimum of five hours of sunlight between 9 am and 3 pm on 22 September. 
If existing sunlight to the secluded private open space of an existing dwelling is less than the requirements of this standard, the amount of sunlight should not be further reduced.
63	Mr Glossop’s evidence included a numerical shadow analysis, which shows that the secluded private open space at 5 Foam Street will only be marginally affected by shadow at 11am and 1pm, and will comfortably achieve the required sunlight between 9am and 2pm, with no additional loss of light at 3pm.  We agree with this evidence and we are satisfied that as the standard has been achieved for this space the proposal will not unreasonably overshadow the private open space at 5 Foam Street.  
64	The analysis contained within Mr Glossop’s evidence demonstrates that the secluded private open space areas at 519 St Kilda Street does not currently receive the amount of sunlight specified by the standard.  As the proposal will further reduce the level of sunlight to this space from 2pm at the September equinox, the applicant is seeking a variation to the standard.  When considering whether it is appropriate to further reduce the amount of sunlight, Clause 55.04-1 requires the Tribunal to consider the following:
•	The design response. 
•	The impact on the amenity of existing dwellings. 
•	Existing sunlight penetration to the secluded private open space of the existing dwelling. 
•	The time of day that sunlight will be available to the secluded private open space of the existing dwelling. 
•	The effect of a reduction in sunlight on the existing use of the existing secluded private open space.
65	It was Mr Glossop’s evidence that a reduction in sunlight from 2pm was an acceptable outcome, and we agree.  The secluded open space of this property will be unaffected for five hours between 9am and 1pm when the level of daylight will not be reduced by the proposed building and the reduction from 2pm will not have a significant impact on the amenity of these dwellings or the overall use of the spaces.  We therefore find that this impact is not unreasonable. 
Loss of light to northern windows
66	As mentioned above, the existing dwelling at 5 Foam Street has a series of north facing windows which face the subject site.  Some of these are to a hallway, which are not considered habitable.  Other windows are to the living room, kitchen and playroom which are considered habitable and therefore, the development should be designed to allow northern light into these windows.  We are satisfied that the proposed development has been setback an adequate distance from the windows to ensure that these windows will still achieve adequate solar access in accordance with the objective of Clause 55.04-4.  
Traffic Impacts 
67	The Tribunal heard traffic evidence from Mr David Beaton.  The residents were particularly critical of his evidence, broadly in relation to car parking provision, layout and traffic generation. We consider each in turn.  
Parking provision
68	Twenty-four car parking spaces are proposed to be provided for this development which is greater than the 23 required to be provided by Clause 52.06-5 of the scheme.  As the site is within the PPTN, visitor parking is not required to be provided for this development on site, and as such visitors to the dwellings will need to park on street.  
69	Mr Beaton’s evidence was that there are 58 car spaces available within a 150 metre walking distance of the site.  When the development is completed the supply of on street parking will increase by one to 59 spaces.  Two spot surveys were included with the evidence which indicated that at least 21 spaces would be available for visitors.    
70	The residents were critical of the time of the spot surveys, undertaken at 11am on a Friday and 12pm on a Tuesday, and outside of the usual peak hours for visitors (generally weekends and weeknights).  
71	We do not share these concerns.  Firstly, as the site is within a PPTN area, the planning scheme does not require the Tribunal to consider visitor parking for this development.  Secondly, as the proposal will result in the provision of four on street carparking spaces along the frontage of the site, the proposal will go a long way in meeting its visitor parking needs within its frontage without significantly affecting the existing supply for on street parking.  The Tribunal notes that parking within the area is currently unrestricted.  Should parking become a problem within the street, it is open to Council to impose parking restrictions to manage the availability of short and long term parking within the area.  
Parking layout
72	During the hearing, Mr Rieniets questioned Mr Beaton extensively regarding the proposal layout, and in response Mr Beaton conceded that there were some aspects to the basement layout that needed to be corrected, including:
•	An additional 150mm clearance is required between for car space 4 and the basement wall to the south of the space; and
•	Car spaces 18 and 20 would normally require an addition 300mm clearance from the access ramp, but this issue could be overcome through allocating car spaces 18 and 19 to a single dwelling.  Spaces 20 and 21 should also be allocated to a single dwelling for the same reason.
73	We are satisfied that both these matters are not fatal to the application and may easily be addressed by condition.  With respect to car space 4, we find that the provision of an additional 150mm will be difficult to achieve, particularly as we have required an additional setback from the basement for landscaping purposes (discussed later in our decision).  Given that there is a surplus of 1 space on site, we consider that car space 4 should be deleted, with the basement wall moved to allow a 300mm setback from the southern edge of space 3.  This would have the added benefit of reducing the impact of the development on the Coral tree to be retained at the rear of the site.  In his further submission, Mr Rieniets raised concern that the changes to the basement suggested by the permit applicant would result car space 1 being non-compliant.  We do not share this concern as the space is shown as located 450mm from the wall.  
74	We have also imposed a condition requiring car spaces to be allocated, including allocated spaces 18 and 19 as well as 20 and 21 to an individual three bedroom dwelling.  The draft condition suggested by the permit applicant sought the allocation to be shown on a plan of subdivision.  As this application is only for development, the Tribunal is reluctant to endorse this approach.  We have therefore required the allocation to occur a condition of permit, which we note will be enforceable under the provisions of the Planning and Environment Act 1987.  
75	Mr Rieniets also raised concern that there was no safety barrier shown on the plans between car space 18 and 20 and the accessway ramp.  This is a matter that will be addressed via the building permit process.  
Traffic generation
76	Residents submit that the traffic generated by the proposal would unreasonably affect the amenity of the area, particularly given that the proposed building will be located next to an existing childcare centre.  
77	In his evidence, Mr Beaton described Foam Street as a local road. Parking is currently allowed on both sides of the street, with cars travelling down the centre of the street.  A 40 kilometre per hour speed limit applies to the street.  Using the descriptions of roads provided at Clause 56.06-8 as a guide, the Foam Street could fall under the definition of an access street level 1, which has a design capacity of between 1000-2000 vehicles per day.  Mr Beaton’s evidence did not provide an estimate or a survey of the existing traffic levels experienced within the street.  
78	Foam Street between Glen Huntly Road and the Elwood Canal is home to approximately 83 dwellings and the childcare centre.  Using the rate provided in Mr Beaton’s evidence of five traffic movements per day per dwelling, the existing dwellings would generate approximately 415 vehicle movements per day.  During his evidence Mr Beaton estimated that the childcare centre would have a peak hour of approximately 18 movements. Using the typically applied 10% within the peak hour, this would equate to a daily volume of 180 vehicle movements.  This gives a total existing volume of 595 vehicle movements per day within Foam Street, with approximately 60 vehicle movements occurring in peak hours.  
79	In his evidence Mr Beaton estimated that the proposed development would generate approximately 65 vehicle movements per day, which will take the daily traffic volume to 660 vehicle movements per day and 66 in the peak period, well within the design capacity of the street.
80	Mr Beaton’s evidence was that the additional traffic volumes equates to an additional 7 movements in the peak hours, or one vehicle every 8 minutes.  We find that this minor increase in volume is unlikely to have an impact on the amenity of the street.  
will the proposal provide acceptable internal amenity for future resuidents?
81	No party to the hearing criticised the internal planning or amenity of the proposed apartments.  Council is satisfied that the relevant objectives of Clause 55 are achieved by the proposal, or could be conditioned. 
82	Mr Glossop concluded from his assessment of Clause 55 that, subject to his recommendations, the proposal would provide a high level of internal amenity for future residents.  We agree.  Subject to the changes outlined in these reasons to the screening of windows and balconies, we find that the generous apartments are generally well configured and well lit, and that the direct access to outdoor open space along with the proposed landscape contributes to their high level of amenity.
83	Mr Glossop recommended that acoustic treatments be added to the north facing bedroom windows of 0.01, as well as the master bedroom window and living room glazed sliding doors of dwelling 0.02, to protect these dwellings from the noise generated from vehicles using the ramp.  We agree that this is appropriate and have included it as a condition of permit.  
Will the proposal exacerbate the existing flooding problems within Foam Street?
84	Mr Pertzel was particularly concerned that the proposal will exacerbate the existing flood problems experienced in Foam Street.  
85	The Elwood Canal divides Foam Street and is located approximately 150 metres from the site.  In terms of topography, the subject site is higher than the Canal but is still likely to experience flooding during extreme storm events.  

86	Mr Pertzel provided the Tribunal with photographs of flooding events that have occurred in the past, and we accept that this site is liable to flood, reflected by the site’s inclusion within a Special Building Overlay, the purpose of which is to:
•	To implement the Municipal Planning Strategy and the Planning Policy Framework. 
•	To identify land in urban areas liable to inundation by overland flows from the urban drainage system as determined by, or in consultation with, the floodplain management authority
•	To ensure that development maintains the free passage and temporary storage of floodwaters, minimises flood damage, is compatible with the flood hazard and local drainage conditions and will not cause any significant rise in flood level or flow velocity. 
•	To protect water quality in accordance with the provisions of relevant State Environment Protection Policies, particularly in accordance with Clauses 33 and 35 of the State Environment Protection Policy (Waters of Victoria).
87	Melbourne Water is the relevant flood plain manager, and has advised that the applicable flood level for the property from the Elwood Canal is 2.52 metres AHD based on a flood event that has a probability of 1% in any one year.  Originally, Melbourne Water objected to the application, but following the preparation of amended plans, is now happy for a permit to be issued subject to conditions including:
The dwellings must be constructed with finished floor levels set no lower than 3.0 metres to AHD, which is 600mm above the applicable flood level of 2.4 metres to AHD.
Side and Rear Boundary setbacks must be maintained at Natural Surface Level, and no fill or retaining walls are permitted within this area.  
88	During the hearing, Mr O’Connor explained that the condition sought to provide a path for floodwaters to rise and fall during an event.  The Tribunal notes that a floor level of 600mm above the flood level is considerably higher than the standard 300mm more commonly applied by Melbourne Water.
89	Mr Pertzel and Mr Rieniets say that the proposed landscape plan is inconsistent with the requirements of Melbourne Water, as it includes a series of raised planter boxes adjacent to the driveway along the northern boundary of the site, which would impede the flow of floodwaters.  
90	In response to these concerns, the applicant tendered a revised plan during the hearing which setback the basement 450mm from the northern boundary to allow for some in-ground planting.  Mr Vernon also tendered a revised landscape plan modifying the proposal.  It locates the planters on the decks of apartments 0.02 and 0.03, rather than above the basement, and proposes an evergreen climbing planter along the adjacent northern boundary.  We are satisfied that this revised proposal is consistent with the Melbourne Water conditions.  
91	With the combination of the raised floor level of the dwellings and the (amended) front and side setbacks, we are satisfied that flood levels will be able to rise and fall without being encumbered. 
is the proposed landscape acceptable and does it appropriately allow for the retention of the large Coral tree? 
92	Council submits that the landscape proposal accompanying the substituted plans provide an appropriate character and arboricultural response.  However, it says that additional planting in the front setback would improve the privacy of apartment 0.01 and it queried the ability to achieve the in-ground planting proposed along the northern boundary, due to the extent of the basement and Melbourne Water’s condition that there is to be no fill along side and rear boundaries.  In his submission, Mr Rieniets elaborated on the difficulties of achieving the proposed landscape outcome along this boundary.
93	In response, the applicant proposed relocating the basement 450mm off the northern boundary to provide the opportunity for deep soil planting.  Mr Vernon’s modified proposal is for a 4 metre high fence, comprising 1.7 metre solid with 2.3 metre mesh above, supporting evergreen climbers along the total length of the northern boundary, apart from the front setback.
94	We do not find this proposal acceptable, primarily because of the size of the proposed structure required to support a 4 metre high wall on boundary and the amenity impact it would have on the future residents of the development, through limiting northern light to these dwellings.
95	On the final day of the hearing, the applicant advised the Tribunal that the architects and Mr Beaton had confirmed that a 750mm setback of the basement wall from the boundary could be provided without detriment to the basement access ramp and parking layout.  We accept Mr Vernon’s evidence that this will allow the planting of trees along the northern boundary adjacent to the ramp as originally proposed.  This will be a condition of permit. We note that this change will have a consequential impact on the design of the basement, and the provision of storage for the dwellings.  We have allowed for these consequential changes, including the provision of storage as conditions of permit.  
96	To the north of apartments 0.02 and 0.03, we also accept the proposition that the proposed planters be raised on feet to deck level to allow for overland flow beneath them and comply with Melbourne Water’s condition regarding fill along site boundaries.  However, we consider that the original planting proposed along this section of the northern boundary should be adhered to and that a solid 2.4 metre fence be provided.  Given that the decks are raised approximately 600mm above natural ground, this would provide future residents with a 1.8 metre fence.  It would also improve both the size and amenity of these two decks. 
97	In relation to the retention of the Coral tree, Mr Howe’s evidence to the Tribunal is that both the Structural Root Zone (SRZ) and the Tree Protection Zone (TPZ) are truncated by an existing in-ground swimming pool south west of the tree.  The 10% encroachment into the TPZ is at the upper threshold of a ‘minor encroachment’ under AS4970.  Further, the proposed setbacks mean that it is unlikely to be a need for pruning to facilitate construction.  The proposed decks can be accommodated within the TPZ, and the construction should be supervised by an arborist.
98	We accept this evidence.  A condition will require supervision of the proposed works in the TPZ of the Coral tree by an arborist.  We note that our requirements for changes to the basement layout will further reduce the impact of the development on the ongoing health and viability of the tree.  
Is the impact on the existing solar facilities acceptable?
99	The dwelling at 5 Foam Street has a number of solar panels on its north facing rear roof.  The owners of the property are concerned that overshadowing by the development will reduce the efficiency of the panels.  Mr Glossop has assessed standard B35 (Energy Efficiency) of Clause 55.03-5.  He obtained shadow diagrams for the winter solstice to determine the extent of over-shadowing at that time.  The diagrams indicate that the panels will be over-shadowed until 10am on June 30, and marginally from 3-5pm.  At the September equinox they are not in shadow between 9-3pm.   
100	Council agrees with the applicant that the amount of over-shadowing is not unreasonable, noting that it is in full compliance with Practice Note 88.
101	To enable the Tribunal to make an assessment against the requirements of the practice note, the Tribunal’s order of the 26 June 2020 required Mr and Mrs Essing to provide the following information:
a)	When the energy facility was erected on the subject building.
b)	The model and type of energy facility (including whether the facility is ‘multiple string’ or ‘single string’, or if the facility uses a ‘feed-in’ or ‘battery storage’ installation).
c)	Any other system features of the energy facility, such as micro inverters or bypass diodes, that assist operations of the facility in the event of partial shading.
d)	The maximum power generated from the energy facility and details of typical solar power generated during a 24-hour day - over a 12-month period.
e)	The estimated loss of energy efficiency from the facility that may arise from overshadowing of the panels from the proposed development on the review site.
102	In response, Ms Essing advised that the True Value Solar system was erected in 2012.  It is a single string system with a feed in installation, and is designed to generate approximately 7.752Kw per day.  The information provided by Ms Essing indicates that 211Kw was generated by the system between 28 February and 29 May 2020, equating to 2.34KW per day over the 90 day period.  
103	Ms Essing was unable to provide an estimate of the loss caused to the system caused by the overshadowing of the panels, either at the winter solstice or September equinox.  
104	Notwithstanding the evidence, at the hearing the applicant offered to assist the owners with the cost of upgrading their solar panel system, which was reiterated in a further submission to the Tribunal.  The Tribunal advised that this is a commercial arrangement between the parties, and not a matter for its consideration.  
105	We find that the impact on the neighbouring solar panels is acceptable.   The development has been designed to provide reasonable solar access to the north for 5 Foam Street through its setbacks, and as consequence limits the impact to the solar panels.  We agree with the applicant that when the solar panels will be overshadowed, the impact is at the time of year and day when solar generation is at its lowest and the panels are unaffected in the middle of the day, when solar generation could reasonably be expected to be at its highest.  
What conditions are appropriate?
106	Draft conditions were circulated prior to the hearing, with a revised version prepared by the permit applicant during the hearing to assist with the discussions relating to those conditions.  Any changes relating to the conditions reflect those discussions as well as the findings of the Tribunal.  
107	With respect to the location of fire services, we accept the submissions of the permit applicant that the services need to be located as currently shown on the plans.  The cabinet doors are to be covered in a mesh screen, which will limit the aesthetic impact the services will have on the street.  At a height of 1.4 metres, the cabinet will match the height of the proposed front fence, which further limits its impact on the streetscape.  
108	During the hearing the permit applicant suggested that the landscaping plan should be to the satisfaction of both the responsible authority and Melbourne Water.  We consider that requiring Melbourne Water’s consent adds a level of complexity that is unnecessary.  The changes we have required to the landscape plan should ensure that the conditions of Melbourne Water will be met by the landscape plan.  We have required the landscape plan to be endorsed concurrent with the endorsement of plans under condition 1 because the development, including the changes to the basement design, needs to be completely integrated with the landscaping to ensure that the desired outcome is achieved.  
109	For completeness we have required the Tree Protection Zones of Trees 4, 7 and 10 to be shown on the endorsed plan and we have included the Tribunal’s standard expiry condition.
Conclusion
110	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Katherine Paterson		Ann Keddie	
Member		Member	

Appendix A – Permit Conditions

Permit Application No	P378/2019	
Land	1-3 Foam Street Elwood	

What the permit allowS	
In accordance with the endorsed plans:
•	The construction of a three storey building to contain up to 13 dwellings; 
•	To construct a building and to construct or carry out works with a special building overlay.  	

Conditions
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. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and an electronic copy must be provided. The plans must be generally in accordance with the plans prepared by Jackson Clements Burrows Architects dated 07/05/20 (Drawing Numbers TP1-102, TP1-103, TP1-104, TP1-105, TP1-106, TP2-101, TP2-102, TP3-101, TP3-102, TP3-103, TP3-104, TP3-105, TP3-106, TP3-107, TP3-108, TP10-301), but modified to show:
a)	Location of any steps needed to access the decks for the ground level dwellings;
b)	The front setback of dwellings 0.01, 1.01 and balcony of 2.01 increased to approximately 4.2 metres to align with that of 1A Foam Street and any consequential design changes.  The rear and side setbacks of the development (with the exception of the basement) must remain unaltered.
c)	The front setbacks of dwellings 0.05, 1.05 and 2.03 (including balcony) increased by a further 800mm and any consequential changes.  The rear and side setbacks of the development (with the exception of the basement) must remain unaltered. 
d)	The screening measures to the northern façade, with the exception of the planter boxes on the level 2 balconies, deleted.
e)	The balustrade for the balcony to apartment 1.04 reduced to a height of 1 metre and the obscured glazing for the living room window of 1.04 replaced with a fin or blade, designed to obscure views into the secluded private open space and habitable room windows of 519 St Kilda Street within nine metres of the window.  An overlooking diagram must be provided which demonstrates that this is achieved.
f)	The eastern elevation corrected to show the use of the mesh screen to the bedroom windows of 1.03 as shown on TP3-106 or alternatively the use of a fixed louvered screen may be used, angled to prevent overlooking of the habitable room windows and secluded private open space 519 St Kilda Street within nine metres of the windows.  
g)	A revised sightline diagram demonstrating the effectiveness of the planter box at the edge of the balcony of apartment 2.02 in preventing unreasonable overlooking from the balcony within nine metres of the secluded private open space and habitable room windows of the properties at 519 St Kilda Road.  If the planter box is insufficient, a mesh screen with a maximum 25% transparency as that described on TP3-106 should be applied to the balcony to limit overlooking.  
h)	The balustrade to the first floor of balcony of 1.04 be lowered in height to 1.7 metres on its southern edge and the use of the mesh screen with a maximum of 25% transparency or angled louvres designed to prevent overlooking applied to the first floor south facing habitable room windows of 1.04 and 1.05 in place of the obscure glazing.
i)	The deletion of car space four, with the basement wall at the southern end of the space moved further to the north to a provide a 300mm setback from the southern edge of car space 3, and reduce the level of encroachment into the tree protection zone of the Coral tree (Tree 10).  A minimum distance of 300mm must be provided between car space 1 and the northern basement wall.  
j)	The basement setback a minimum distance of 750mm from the northern boundary and any consequential changes to the basement layout.  
k)	A solid 2.4 metre fence be provided adjacent to the decks of dwellings 0.02 and 0.03.
l)	The location and Tree Protection Zones of Tree (group) 4, Tree 7 and Tree 10 as detailed in the Arboricultural Impact Report prepared by Simon Howe of Tree Department Pty Ltd dated June 2020. 
m)	Corner splays/sight triangles to be kept 50% clear of any visual obstruction and any vegetation within the corner splays/sight triangles above 900mm in height is to be 50% clear of any visual obstructions.
n)	Full details of proposed car stackers, to include the model, platform dimensions and height clearances, in accordance with the Expert Evidence Statement prepared by David Beaton of Quantum Traffic, dated 05/06/2020 or similar stacker to the satisfaction of the responsible authority
o)	Mail boxes, appropriately located adjacent to the pavement.
p)	Storage to be provided in accordance Standard B30 with any storage in communal areas to be assigned to specific units.
q)	The location and design of the basement access gate. 
r)	Internal fence heights and types. 
s)	Annotation to confirm appropriate acoustic measures to the north facing bedroom windows of dwelling 0.01 and the north facing living room window/sliding doors and the master bedroom window of Apartment 0.02. 
t)	Any changes necessary to comply with the Sustainable Management Plan, in accordance with condition 5. 
u)	Any changes necessary to comply with the Waste Management Plan, in accordance with condition 8.
v)	Any changes and/or construction techniques to comply with the Tree Protection Management Plan, in accordance with condition 13. 
w)	Any changes necessary to meet the requirements of Melbourne Water, in accordance with conditions 18-25 of this permit.
x)	A landscape plan in accordance with condition 15 of this permit.  
No Alterations
2	The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.
Privacy Screens Must be Installed
3	Privacy screens as required in accordance with the endorsed plans must be installed prior to occupation of the building and thereafter maintained to the satisfaction of the Responsible Authority
No equipment or services
4	Any plant, equipment or domestic services visible from the primary street frontage (other than a lane) or public park must be located and visually screened to the satisfaction of the Responsible Authority.
Sustainable Management Plan (including WSUD) 
5	Prior to the endorsement of plans under condition 1 of this permit, an amended Sustainable Management Plan (SDA) that outlines proposed sustainable design measures must be submitted to, be to the satisfaction of and approved by the Responsible Authority. The amended SMP must be generally in accordance with the submitted SMP, dated 12 July 2019 and with reference FILE 665AL, but modified to meet Council’s standards for best practice, to include a STORM report (or equivalent) and achieve a minimum 50% overall score and minimums in Energy (50%), Water (50%), IEQ (50%) and Stormwater (100%) categories in BESS. 
Where alternative ESD measures are proposed to those specified in this condition, the Responsible Authority may vary the requirements of this condition at its discretion, subject to the development achieving equivalent (or greater) ESD outcomes in association with the development. 
When approved, the Assessment will be endorsed and will then form part of this permit and the project must incorporate the sustainable design measures listed.
Incorporation of Sustainable Design initiatives
6	Prior to the occupation of any dwelling/building approved under this permit, the provisions, recommendations and requirements of the endorsed Sustainability Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.
Construction Management Water Sensitive Urban Design 
7	The developer must ensure that throughout the development allowed by this permit; 
a)	No water containing oil, foam, grease, scum or litter will be discharged to the stormwater drainage system from the site; 
b) 	All stored wastes are kept in designated areas or covered containers that prevent escape into the stormwater system; 
c) 	The amount of mud, dirt, sand, soil, clay or stones deposited by vehicles on the abutting roads is minimised when vehicles are leaving the site. 
d) 	No mud, dirt, sand, soil, clay or stones are washed into, or are allowed to enter the stormwater drainage system; 
e) 	The site is developed and managed to minimise the risks of stormwater pollution through the contamination of run-off by chemicals, sediments, animal wastes or gross pollutants in accordance with currently accepted best practice.
Waste Management Plan
8	Prior to the endorsement of plans under condition 1 of this permit, an amended Waste Management Plan (WMP) must be submitted to, be to the satisfaction of and approved by the Responsible Authority. The amended WMP must be generally in accordance with the submitted WMP, dated 10 July 2019, but amended in accordance with Council’s storage requirements or amended to increase the collection frequency. When approved the WMP will be endorsed and form part of the permit.
Vehicle Crossings
9	Before the occupation of the development allowed by this permit, vehicle crossings must be constructed in accordance with Council’s current Vehicle Crossing Guidelines and standard drawings to the satisfaction of the Responsible Authority. All redundant crossings must be removed and the footpath, naturestrip, kerb and road reinstated as necessary at the cost of the applicant/owner and to the satisfaction of the Responsible Authority.
Car Parking Allocation
10	Without the further written consent of the Responsible Authority car parking for the approved development must be allocated as follows:
a)	one car space for each one and two bedroom apartments;
b)	two car spaces for each apartment with three or more bedrooms;
c)	the allocation of car spaces 18 and 19 to a single three-bedroom dwelling;
d)	the allocation of car spaces 20 and 21 to a single three-bedroom dwelling;
All to the satisfaction of the Responsible Authority.
Parking Areas Must Be Available
11	Car and bicycle parking areas must be developed and kept available for those purposes at all times and must not be used for any other purpose such as storage to the satisfaction of the Responsible Authority.
Car Parking Stacker Maintenance and Provision
12	The mechanical car stackers are to be maintained in a good working order and be permanently available for the parking of vehicles in accordance with their purpose, to the satisfaction of the Responsible Authority.
Tree Protection Management Plan
13	Prior to the endorsement of plans under condition 1 of this permit, a Tree Protection Management Plan (TPMP) must be prepared by a suitably qualified Arborist to comply with AS 4970 - 2009 Tree protection on development sites setting out how all existing off-site trees, along with onsite Trees 7 and 10, will be protected during and post construction, must be submitted to and approved by the Responsible Authority.  The TPMP shall be in generally accordance with the Arboricultural Impact Assessment submitted as expert evidence, prepared by Simon Howe of Tree Department and dated June 2020.  When approved the report and plan will be endorsed and form part of the permit.  The tree protection measures outlined in the report must be complied with to the satisfaction of the Responsible Authority.   The TPMP must include the following:
a)	Arborist supervision required during the demolition of the existing swimming pool;
b)	Arborist supervision of the post hole excavation for the decks to be constructed within the TPZ of dwelling10;
c)	Ground protection within the TPZ of Tree 7 and along he southern boundary for Tree (group) 4
d)	How removal of tree 9 from within the SRZ of tree 10 is to be completed so as not to impact the structural integrity of tree 10; and
e)	Canopy protection or pruning to obtain clearances for scaffolding (if required).
Pruning of Retained Trees
14	Any pruning that is required to be done to the canopy or root system of any trees retained on or off-site (where canopies or roots extend within the subject site), is to be done by a qualified Arborist to AS 4373 - 2007 Pruning of Amenity Trees to the satisfaction of the Responsible Authority.
Landscape Plan
15	Before the development starts (other than demolition or works to remediate contaminated land), a detailed Landscape Plan must be submitted to, approved by and be to the satisfaction of the Responsible Authority. When the Landscape Plan is approved, it will become an endorsed plan forming part of this Permit. The Landscape Plan must be in general accordance with the Landscape Plan prepared by Tim Vernon of CDA Design Group dated 5 June 2020, but must incorporate:
a)	All changes to setbacks required under condition 1 of this permit;
b)	Planters to be located on the decks of apartments 0.02 and 0.03 instead of being placed above the basement;
c)	The planting of trees in ground along the northern boundary;
d)	Additional planting where possible within the front setback of the development;
e)	Suitable planting to increase privacy to Unit 0.01, as viewed from the street. 
f)	The street tree(s) to be planted must be advanced (minimum of 2.5 metres high at time of planting), of a species and in a location that is to the satisfaction of the responsible authority.
g)	The provision of a 2.4 metre high fence opposite the northern decks of 0.02 and 003
Completion of Landscaping
16	The landscaping as shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the Responsible Authority before the occupation of the development and/or the commencement of the use or at such later date as is approved by the Responsible Authority in writing.
Landscaping Maintenance
17	The landscaping as shown the endorsed Landscape Plan must be maintained, and any dead, diseased or damaged plant replaced in accordance with the landscaping plan to the satisfaction of the Responsible Authority.
Melbourne Water conditions
18	The dwellings must be constructed with finished floor levels set no lower than 3.0 metres to AHD, which is 600mm above the applicable flood level of 2.4 metres to AHD.
19	All lifts, services and openings must be constructed with finished floor levels set no lower than 3.0 metres to AHD.
20	The ground floor entrance to any lift and stairs must be set no lower than 3.0 metres to AHD (with the exception of minimum ramping as shown for DDA compliance), which is 600mm above the applicable flood level of 2.4 metres to AHD.
21	The basement must be constructed with a flood proof apex and associated bunding set no lower than 3.0 metres to AHD, which is 600mm above the applicable flood level of 2.4 metres to AHD to prevent floodwaters entering the basement level during a storm event.
22	All side and rear boundary setbacks must be maintained as shown on the plans.
23	Side and rear boundary setbacks must be maintained at Natural Surface Level, and no fill or retaining walls are permitted within this area unless otherwise agreed in writing by Melbourne Water.
24	Imported fill must be kept to a minimum on the property and only be used for the sub floor area of the building and minimal fill to the basement apex.
25	Any and all new internal fencing must be of an open style of construction (minimum 50% open) to allow for the passage of flood flows through the site.
Cultural Heritage Management Plan
26	The development must comply with the recommendations of the Cultural Heritage Management Plan, CHMP No. 16888 ‘1-3 Foam Street, Elwood Residential Development’ prepared by Dr Anna Raudino of Andrew Long & Associates dated 21 November 2019 and approved on 22 November 2019 by the Director Heritage Services Aboriginal Victoria.
Expiry of permit for development
27	This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:
(a)	The development is not started within two (2) years of the issue date of this permit.
(b)	The development is not completed within four (4) years of the issue date of this permit.
In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.
– End of conditions –