VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P962/2020
Permit Application no. WH/2019/938	
CATCHWORDS	
Residential Hotel; Box Hill Metropolitan Activity Centre; building height; appropriateness of use; external amenity; parking rate; access via proposed park.	

APPLICANT	Xie Unit Trust	
responsible authority	Whitehorse City Council	
referral authority	Department of Transport	
RESPONDENT	Gregory Durkin	
SUBJECT LAND	37 - 39 Harrow Street Box Hill	
HEARING TYPE	Hearing	
DATE OF HEARING	2 & 3 December 2020	
DATE OF ORDER	15 December 2020	
CITATION	Xie Unit Trust v Whitehorse CC [2020] VCAT 1392   	

Order
1	Pursuant to section 127 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:	Ascui & Co Architects	
•	Drawing numbers:	TP01E-TP32E (inclusive)	
•	Dated:	15 October 2020	
2	In application P962/2020 the decision of the responsible authority is set aside.
3	In planning permit application WH/2019/938 a permit is granted and directed to be issued for the land at 37 - 39 Harrow Street Box Hill in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	The use of the land for a Residential Hotel;
•	The use of the land for a Food and Drink Premises (café);
•	Buildings and Works;
•	Vegetation removal; and 
•	Reduction of the car and bicycle requirements.

Michael Nelthorpe 
Member			

Appearances
For applicant	Mr Rory O’Connor, solicitor of Hall & Wilcox Lawyers.  He called the following witnesses:
Mr Travis Finlayson, town planner of Ratio Consultants;
Ms Amanda Roberts, urban designer of Latitude37
Mr Carlo Morello, traffic engineer of the Traffix Group.
Mr Chris Goss, architect of Orbit Solutions prepared visual amenity evidence but was not called at the hearing.	
For responsible authority	Mr Darren Wong, solicitor of Planology	

Information
Description of proposal	A five-storey building containing 82 serviced apartments and a ground level café plus basement parking for 27 cars.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Whitehorse Planning Scheme	
Zone and overlays	Residential Growth Zone Schedule 2
Significant Landscape Overlay Schedule 9
Parking Overlay Schedule 1	
Permit requirements	Clause 32.07-2:  to use land for accommodation (‘Residential Hotel’) and for a Food and drink premises;
Clause 32.07-5:  to construct a residential building;
Clause 32.07-8:  buildings and works associated with a Food and drink premises;
Clause 52.06:  to provide car parking for a Residential Hotel to the satisfaction of the Responsible Authority and to reduce the required number of car parking spaces for a Food and drink premises; and
Clause 52.34:  to reduce the required number of bicycle spaces and to not provide end of trip facilities.	
Relevant scheme policies and provisions	Clauses 11, 12, 15, 16, 17, 18, 21.04, 21.05, 21.06, 22.03, 22.04, 22.05, 22.06, 22.07, 22.10, 32.07, 43.02, 52.06, 52.34, 65 & 71.02.	
Land description	This rectangular site consists of two lots and is located mid-block on the north side of Harrow Street.  It has a 33 metre frontage, a 37 metre depth and an area of 1,218 square metres.  It has a fall of 1.3 metres from its eastern to western boundary and has access from a right of way at the rear.
Two single-storey dwellings occupy the site.  A three-storey apartment building occupies the site to the east and a five-storey apartment building occupies the site to the west.  Lower rise multi-unit developments and single dwellings occupy land on the opposite side of the street.	
Tribunal inspection	29 November and 8 December 2020	

Reasons
What is this proceeding about?
1	Xie Unit Trust (‘the applicant’) sought a permit to construct a six-storey residential hotel at 35-37 Harrow Street, Box Hill.  
2	Whitehorse City Council (‘the council’) refused the proposal on grounds relating to the Planning Scheme’s policies and provisions for the Box Hill Metropolitan Activity Centre, amongst other things.  This decision was contrary to the recommendation of the council’s officers.  The applicant seeks a review of this decision.
3	Mr Durkin lives near the site.  He joined this review but did not attend the hearing.
4	The Department of Transport does not object to the proposal.
5	The applicant relies on amended plans that reduce the building’s height so that it is marginally taller than the neighbouring five-storey building.  These plans also reduce the number of rooms from 88 to 82 and re-arrange the car parking layout.
6	The council says that the amended plans go some way towards addressing its grounds of refusal but that more is needed.
What are the Key Issues?
7	The key issues in this review are:
•	Is the building’s height acceptable?
•	Is this a suitable location for a residential hotel?
•	Are the proposed car and bicycle parking arrangements satisfactory?
•	Does the building an acceptable response to policies for environmentally sustainable development?
8	In summary, I find that the building’s height is acceptable and that this is a suitable location for a residential hotel.  My decision on these issues is influenced by the council officers’ recommendation and my general impression is that the council’s decision does not give sufficient weight to the site’s physical context.
9	On the other issues, I am persuaded by the expert traffic evidence presented at the hearing and consider that issues around the building’s environmental qualities can be refined through permit conditions.
the amended proposal
10	The amended proposal is for a five-storey building with one level of basement parking.  The entry lobby, a 120 square metre café, two small conference rooms and ten hotel rooms occupy the building’s ground floor and the remaining 72 rooms occupy the upper levels.  Of the 82 rooms, 19 have living rooms, kitchens and one-bedroom, 8 are similarly configured but with two bedrooms, and 55 are typical hotel rooms.
11	The basement is accessed from the rear lane and has 27 car parking spaces and nine bicycle parking spaces.  A loading bay for small commercial vehicles is located parallel to the lane.
12	As can be seen in the photomontage below, the building presents as three modules with the top floor of the western module recessed from the front and side, and with the eastern module significantly recessed.

A photomontage of the building and its neighbours with one of Box Hill’s tall buildings in the background.
Is the building’s height acceptable?
The question of transition in heights
13	The council contends that the building’s height does not coincide with policy objectives for built form in the Box Hill Metropolitan Activity Centre.  It says that the building fails to deliver the transition in heights from the centre (near the transit interchange) to the edge (next to lower height residential areas).  It says that the building provides an unacceptable transition to the south side of Harrow Street, where three-storey building heights are sought; and provides an unacceptable transition between the five-storey building to its west and the three-storey building to its east. 
14	The evidence of Mr Finlayson and Ms Roberts persuade me that the site’s physical context does not demand strict compliance with the four-storey height preferred in the Zone and Structure Plan.  Only the fifth floor is in contest, and in terms of actual height, the building is only 1.7 metres above the preferred maximum height in the Zone.
15	Several architectural techniques reduce the building’s prominence while retaining the Structure Plan’s objective of constructing buildings to the front boundary.  The fifth floor in the eastern and western modules is set back from floors below and is finished in a dark colour that reduces its prominence; and the hotel looks like an apartment building, which allows it to blend in with its neighbours to its east and west.  
16	In terms of its height, the streetscape elevation demonstrates that it is an extension of the neighbouring building’s height rather than a jarring and obvious protrusion.  Apart from this, the building’s height is generally comparable to that of the multi-deck car park near the corner of Harrow and Station Streets.  These existing buildings indicate the future built form of Harrow Street and the proposal fits comfortably in this setting. I find that these matters resolve the issue of transition in building heights from the centre to the edge of the Activity Centre.  

The proposed building is on the right hand side of this image, while the existing ‘Spectrum Apartments’ are on the left.
17	A related argument was made regarding the transition in scale from east to west.  I am not convinced that this is required by the policy framework given that the building is not adjacent to the lower scale residential area.  Rather, the question is how the building responds to its immediate neighbours, and I am satisfied that the upper floor setbacks acknowledge the scale and setting of the neighbouring buildings. 
18	Overall, I find that the building will not be dominant in the streetscape.  It will have a substantial presence, yet it shares this with its neighbour to the west.  This is an existing condition and it is reasonable to continue this pattern.
Amenity impacts resulting from the built form
19	I agree with Mr Finlayson that amenity expectations of residents of the neighbouring buildings must be tempered by the site’s location in a Residential Growth Zone in a Metropolitan Activity Centre.  In this setting, a four-storey building is anticipated by the Zone and the policy framework.  As such, I do not accept the grounds raised by residents of 41 Harrow Street regarding the loss of sunlight and aspect.
20	Two ground floor apartments in the building to the west (33 Harrow Street) face the site and three elevated ground floor apartments face the site in the building to the east (41 Harrow Street).  Little has been done to ‘future proof’ these buildings given that screened or highlight habitable room windows at 33 Harrow Street are as close as 1.6 metres from the shared boundary and screened terraces of apartments at 41 Harrow Street are marginally further away.
21	I agree with Mr Finlayson that the building’s minimum setbacks of 2 metres to the west and 3 metres to the east with the central sections recessed to over 5 metres respect these apartments and provide an acceptable level of daylight and aspect to open sky.  
22	The Section diagram (Section A) shows that afternoon sunlight to at least 2pm at the equinox will reach the elevated ground floor courtyard of 1/41 Harrow Street and sunlight to at least 3pm will reach the glazed doors and windows of that property.  I acknowledge that less sunlight will reach the covered terraces of the apartments to the north, but this is due to their design.
23	I find that the privacy of these apartments is reasonably protected given that east facing windows, balconies and terraces are screened to 1.7 metres above finished floor level where they face neighbouring apartments.  The exceptions are at Level 4 (the top floor) and towards the front of the building.  For reasons relating to the use of the site for a residential hotel, the width of the east and west facing terraces on Levels 4 and 5 will be reduced to 1.5 metres.  This will ensure there are no downward views to 41 Harrow Street from these upper levels.
24	I also accept the applicant’s submission that this building’s response to 41 Harrow Street will have far less impact than the four-storey building that was approved for this site in 2015.  It is far closer to the shared boundary.
25	To the west, outward views to 33 Harrow Street are limited by 1.7 metre privacy screens.  This will reasonably limit views, including those to the wide terraces on that buildings 5th floor that are as close as 1.6 metres from the shared boundary.
26	On a separate matter, a resident who lodged a Statement of Grounds says that the front setback should be increased to provide space for landscaping as occurs at 41 Harrow Street.  I will not impose this requirement as it is contrary to the built form guidance of local policy for the Metropolitan Activity Centre that encourages ‘street-oriented development’. 
Is this a suitable location for a residential hotel?
27	The council says that Harrow Street continues to be a residential street despite the relatively high level of redevelopment that has occurred.  It says this is consistent with the zoning of the land, which maintains a residential amenity to the occupants of the street. 
28	It says that it is not appropriate to introduce these ‘non-residential uses’ into this setting.  It highlights the potential conflicts between aspects of these uses and the residential amenity enjoyed by the street’s occupants.  Examples include the volume and nature of traffic generated by the use and undue activity and noise from patrons of the hotel and café.
29	The existing residents who lodged Statements of Grounds share this view.  They say that the street is very quiet in the evenings and on weekends.  They object to having strangers in the street and are concerned about the potentially disruptive behaviour of the hotel’s patrons.
30	The council relies on local policy at clause 22.05 - Non-residential uses in residential areas.  This policy outlines the benefits and disadvantages of such uses.  It strikes a balance by saying they should be appropriately located and designed and should serve local needs.
31	Notably, this is consistent with the Zone’s purpose:
To allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs in appropriate locations.
32	Several elements in this framework need to be unpacked.  The first thing to say is that the Zone does not prohibit non-residential uses.  Rather, they are found in most residential areas.  The longest standing of such uses are schools, child-care centres and churches.  They operate to a different timetable than the nearby houses and will continue to do so despite their impact in the neighbourhood.  We are all familiar with the surges of traffic at school drop-off and pick-up times and we may have had tranquil weekend days interrupted by church-based activities.  However, the benefits of these uses are understood to outweigh these disadvantages.  Thus, they are perceived as being ‘appropriately located’.
33	Other non-residential uses such as medical centres serve local needs yet may disrupt their neighbours by their appearance or by patients coming and going in the evenings or on weekends.  Often, these adverse impacts are managed by the design of these centres – typically by locating their ‘active’ elements away from neighbouring bedrooms or backyards.
34	In considering if this residential hotel is appropriately located in Harrow Street, the elements I must consider are the residential nature of Harrow Street, whether it fails because it does not serve a local need, the activities likely to occur at this residential hotel, and its design in terms of its neighbours.
The residential nature of Harrow Street
35	I accept that the eastern end of Harrow Street is residential in nature, yet it is not a typical residential street in Whitehorse.  It is in the core of the Metropolitan Activity Centre.  The Planning Scheme expects the Centre to serve the region rather than the local area.  It expects it to be intensely developed and have a high level of activity across many hours of the day.  In effect, the Centre should be viewed as aspiring to be a mini-CBD in its character, activity, diversity and form.
36	In Harrow Street, the regional Centrelink office and the multi-deck public car park express this higher order role.  Like the schools and churches discussed earlier, they operate to a different timetable than the apartments on Harrow Street and will continue to do so.  Their effect is to dilute the ‘residential nature’ of Harrow Street.
37	Combined with this, the preferred apartment typology in this well-serviced location is likely to expand the intensity of residential activity, with a consequent increase in the number of people on the street and the hours of the day when activity is noticeable.  Harrow Street has a different ‘residential nature’ than the streets of Whitehorse’s suburbs and this trend will continue in the future.
38	For these reasons, I do not accept the submission of the council and the existing residents regarding Harrow Street’s residential nature.  I find that its location in a Metropolitan Activity Centre means that the amenity impacts caused by this proposal are unacceptable.  
39	A related argument put by the council is that the proposal isolates the apartment building to the west as it would sit between this hotel and the public car park. It says this is contrary to policy at clause 22.05.  I find it is inappropriate to strictly apply this policy directive in a Metropolitan Activity Centre.  Apart from this, the council intends to convert the car park to public open space.  This would resolve the issue of ‘isolation’.
40	It also says that this residential hotel would be better placed in the Centre’s commercial core.  This may be the case, but it is not a reason to refuse this proposal.  If the proposal is found to be acceptable in its proposed location, then a permit should be granted.
Does the proposal fail because it does not serve a local need?
41	This residential hotel will serve regional, state-wide, national and international tourists and business travellers.  As such, it does not serve a local need for accommodation.  The exceptions, as described by Ms Roberts, are friends and relatives of people living nearby.  This is a great benefit but is not the primary market for this hotel.
42	I find that this this hotel does not need to serve a local need due to its location in a Metropolitan Activity Centre.  I agree with the applicant’s submissions that it will complement the existing and future activities of the Centre.  Its guests will use the Centre’s services, facilities and excellent public transport.  This strengthens the Centre in ways sought by the Planning Scheme. 
What activities are likely to occur at this residential hotel and will they unreasonably affect the amenity of Harrow Street?
43	I consider that the arrivals and departures of guests at all hours of the day and night, the commercial vehicles for food and laundry, and the activity and noise of patrons of the café may affect the street and nearby occupants.  The question is whether this is reasonable. 
44	It is common ground that many guests will be dropped off or picked up in front of the building.  Mr Morello estimates that there will be six or seven taxi/uber callouts during peak hours, which equates to 60-70 per day call outs per day.  Mr Morello expects that this will not unduly affect other road users. 
45	I accept Mr Morello’s opinion based on my review of the traffic and parking data he relies on.  I acknowledge the existing residents’ comments regarding the moderate to high demand for on-street parking spaces yet this is to be expected on a street in the core of a Metropolitan Activity Centre.  Their comments about residents of existing apartments using on-street parking spaces is not the applicant’s responsibility.  The street’s parking spaces are available to everyone, at least within the time limits set for these spaces.
46	This number of taxi/uber callouts will be noticeable to residents living near the site.  Activity associated with early morning or late-night arrivals or departures (conversation, car doors closing and the like) may be discernible, yet I find this is acceptable on a street in the core of a Metropolitan Activity Centre.
47	On the second issue, I find that the introduction of commercial vehicles for food and laundry is acceptable.  These vehicles will unload at the rear of the site and will not affect Harrow Street’s amenity.
48	The café is the other use that may affect the amenity of Harrow Street.  I consider that the café will mainly serve the hotel’s guests.  It is unlikely to attract many patrons from outside the hotel given its location and the competition with more conveniently located cafes in the Centre.  
49	As such, I am satisfied that it is unlikely to generate additional traffic or place greater demands on on-street parking.
50	The arguments of the existing residents do not persuade me that the use is inappropriate.  What is proposed is not a pub or a backpacker’s hostel thus I do not expect issues with alcohol or drugs.  I expect that most patrons will not adversely affect the amenity of residents of the street and consider it inappropriate to refuse to grant a permit based on the existing residents’ concerns.
Does the hotel’s design minimise adverse amenity impacts to neighbouring properties?
51	The design of several elements of the building minimise adverse amenity impacts to neighbouring properties.  All vehicle access is via the rear lane, which limits activity and light spill on the street, hotel and conference rooms occupy the building’s western side and the café is mainly adjacent to the eastern neighbour’s basement ramp.
52	However, some elements of the building do not protect the amenity of apartments in the building to the east.  The eastern edge of the loading bay, the uncovered walkway for patrons and kitchen deliveries and part of the café’s courtyard are next to the elevated terraces of at least five apartments of 41 Harrow and will disrupt their amenity through noise and activity.
53	On my review of aerial photographs and of the internal layout of 1/41 Harrow Street (via realestate.com.au), it appears that the proposal’s plans have not documented the elevated terrace of 1/41 Harrow Street and have not accounted for noise transfer to this apartment or its northern neighbours.  The plans do not adequately account for the apartments behind this that have terraces and bedrooms facing the site.
54	This is an uncomfortable relationship where the noise and activity of arriving or departing guests and kitchen staff is likely to interfere with the amenity of residents of these apartments.  In my view, the potential for transfer of noise between these very different uses is too great.  To make matters worse, it would be an ongoing problem.
55	The council proposes amendments to the plan that remove the kitchen door to this walkway however, I find that this is not enough to rectify this situation.  Rather, the loading bay must be moved to the west, the external walkway and café courtyard must be removed, and the external wall of the café extended southward by three metres to resolve this issue.  This will require a redesign of the eastern side of the building’s ground floor.  I am satisfied that this can be done through conditions on the permit to the council’s satisfaction.
56	I also share Mr Durkin’s concern with the potential for unreasonable noise emanating from the terraces on Level 4.  These are all quite large and they serve the two-bedroom self-contained ‘serviced apartments’ on this floor.  To minimise the activities of hotel patrons on these terraces, I will require their width to be reduced to 1.8 metres, with the remaining space used for landscaping.  As such, these terraces are less likely to be used as gathering points for hotel patrons and their guests.
57	I am satisfied that limiting the café’s hours to 8.30pm on Sundays limits unreasonable noise to adjoining properties yet will reduce the hours on Monday to Saturday nights until 10.00pm.  I am also aware that the operator must comply with the requirements of the State Environmental Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1 and the State Environmental Protection Policy (Control of Music Noise from Public Premise) No. N-2.
Are the proposed car and bicycle parking arrangements satisfactory?
58	The Planning Scheme does not set a parking rate for residential hotels.  Rather, the number of parking spaces must be to the satisfaction of the council and the Tribunal on review.
59	The council says that a rate of 0.5 spaces per apartment is appropriate whereas a rate of 0.3 spaces is proposed.  It disputes Mr Morello’s reliance on data derived from an existing serviced apartment building in Barkly Street, St Kilda by saying that these locations are substantially different.
60	Mr Morello’s evidence derives from a combination of data from this serviced apartment building and the RTA Guide to Traffic Generating Developments, where a rate of 0.25 spaces per occupied apartment is recommended for three and four star hotels.  The basis of the council’s position is less clear as it only says that the 0.5 rate reflects its experience with residential hotels in the area.
61	Mr Morello also says that the supply of on-site parking will dictate the demand.  He says that patrons seeking a car parking space as part of their booking will chose another venue if no spaces are available.  
62	I find this is persuasive when combined with the rates of the RTA Guide to Traffic Generating Developments, the lack of long term on-street parking and the convenient access to central Box Hill and its transit centre.  For these reasons, I find the proposed parking rate is satisfactory.
63	I am not persuaded by the council’s submission that the head clearance of the ramp to the basement should be at least 2.8 metres to accommodate commercial vehicles and a full range of guest’s vehicles.  Mr Morello persuades me that the head clearance is greater than that required by the relevant Australian Standard and greater than most shopping centre car parks.  This is satisfactory.
64	Apart from this, the council does not support a reduction in parking for the café (from five spaces to two spaces), given the demand for parking spaces on Harrow Street.
65	As I said earlier, I do not expect a high volume of café patrons who are not staying at the hotel.  It is unworkable to provide on-site parking for these patrons and it is reasonable to expect them to park on-street.  Parking within large activity centres is assessed on a centre-wide basis and anticipates greater walking distances to a destination due to the demand for on-street parking.  I find it is reasonable to apply this approach to the café parking demand.
66	Regarding the detailed design of the basement, the council contends that the vehicle access ramp is too narrow and will cause conflicts between vehicles entering and exiting the basement.  I disagree given the relatively low number of parking spaces and the extremely low probability that the conflicts will occur.  Apart from this, I am satisfied that the proposed ramp traffic signals will properly manage any conflict that might arise.
67	It also says that the proposed splay at the basement’s north-west corner encroaches to an unacceptable degree into one of the car parking spaces.  Mr Morello persuades me that this is a permissible encroachment under the design guidelines of clause 52.06-9.  
68	It also says that amendments to the plan have brought the loading bay too close to Suite G09.  The applicant agrees that this arrangement can be better resolved.  I expect that a reasonable degree of protection of internal amenity from loading bay noise and activity will be incorporated in the redesign of the ground floor.
69	Finally, it says that the loading bay cannot rely on access via the public car park to the west of the site as it is proposed to be redeveloped as public open space.   At my request, a copy of the title for the subdivision that includes the land and the public car park was provided at the hearing.  It shows the right of way extending through the public car park.
70	Consequently, all properties along Harrow Street and Ellingworth Parade that have access from the rear lane (as well as the general public) have rights of access through the car park.  These are not extinguished by the proposal to use the car park as public open space.  Rather, a separate legal process is required and has not been undertaken yet.
71	As such, it is not appropriate to use the Tribunal’s powers under the Planning and Environment Act 1987 to deny the applicant’s right to use the right of way through the proposed park.  These are separate legal processes and are subject to different criteria.
72	However, it may be wise for the applicant to ‘future proof’ the access to the loading bay as part of the redesign of the ground floor.  It is a matter for them, yet it is worth considering in the circumstances.
73	On bicycle parking, the council contends that failing to provide the required number of spaces, and failing to provide end of trip facilities, is unacceptable.  The applicant concedes this point.  It will be resolved through conditions on the permit.
Does the building an acceptable response to policies for environmentally sustainable development?
74	The council contends that the Sustainability Management Plan that accompanied the permit application is not acceptable.  It says that it is not appropriate to remedy its shortcomings after a permit is issued, i.e. by a condition on permit. 
75	I disagree.  I consider that the perceived shortcomings can be resolved in the next stage of the design of the building.
What conditions are appropriate?
76	The draft conditions circulated by the council were discussed at the hearing.  I have changed some of these conditions to reflect my reasons, and explain other changes below:
a.	I have revised Condition 3 on landscaping to refer to the MEMLA landscape plan as I find it is appropriate for the proposal.  I have also edited the condition so that its intent is clearer;
b.	I have revised Condition 6 on the management of car parking to:
i.	 delete the requirement for residential visitor parking.  Such parking is not an efficient use of this valuable resource.  
ii.	delete the requirement to explain how the rear loading bay will be managed as I do not foresee the potential traffic conflicts envisaged by the condition or see how a parking management plan would assist in resolving such conflicts.  I have removed the same requirement from the Waste Management Plan;
iii.	delete the requirement to describe details of way-finding, cleaning and security of the end of trip bicycle facilities as way-finding can be resolved at the time the Plan is assessed, and cleaning and security are matters for the hotel’s operator;
iv.	delete the requirement for information and/or signage on paid parking and waste management because paid parking is not envisaged, and waste management signage is addressed in the condition on waste management;
c.	I have revised Condition 8 on the Sustainability Management Plan by removing the requirement for a preliminary NatHERS assessment as this derives from clause 58 – Apartment buildings of the Planning Scheme rather than being directly applicable to residential hotels;
d.	I have deleted the requirement for a revised Wind Report as I am satisfied that it is not warranted by the amendment to the building’s height;
e.	I have amended what is now Condition 15 to allow the café to operate on Sundays.  As I have found that it will primarily serve the occupants of the hotel, I consider that it should be able to operate seven days per week;
f.	I have deleted the general amenity condition that references transport of goods, appearance of the building, emissions of various kinds and the presence of vermin as I find that the building’s design and other conditions on the permit adequately address the relevant matters, and because this is a residential hotel not a challenging commercial or industrial use; and
g.	I have deleted the other ‘catch all’ amenity condition regarding the screening of plant and the building’s appearance because I consider the relevant issues are addressed through the plans;
conclusion
77	For the reasons outlined above, the decision of the responsible authority is set aside.  A permit will issue.

Michael Nelthorpe 
Member			

Appendix A 

Permit Application No:	WH/2019/938	
Land:	37 - 39 Harrow Street
BOX HILL  VIC  3128	

What the permit allows	
In accordance with the endorsed plans:
•	The use of the land for a Residential Hotel;
•	The use of the land for a Food and Drink Premises (café);
•	Buildings and Works;
•	vegetation removal; and 
•	reduction of the car and bicycle requirements.	

Conditions:
Amended plans
1	Before the development starts, but excluding the works detailed in the Early Works Plan, amended plans must be submitted to and approved by the Responsible Authority in a digital format.  Once approved, the plans will be endorsed and will then form part of the permit.  The plans must be drawn to scale, with dimensions, and be generally in accordance with the plans prepared by Ascui & Co Architects, dated 15/10/2020, revision ‘E’, but modified to show: 
(a)	a redesign of the eastern side of the building’s ground floor with the loading bay/ drop off-pick up facility moved in a westerly direction, the external walkway and café courtyard removed, the external door to the kitchen removed, and the external wall of the café extended southward by three metres;
(b)	The width of the terraces of rooms 302, 317, 401, 409, 412 and 413 reduced to 1.8 metres with the remaining space used for landscaping;
(c)	Bollards provided between the loading bay/ drop off-pick up facility and any adjacent hotel room;
(d)	The external walls of any apartment abutting the loading bay - drop off/pick up facility provided with noise attenuation measures in accordance with the relevant Building Regulations;
(e)	An additional 6 visitor bicycle spaces (15 bicycle spaces in total) provided either in the basement, the front setback area or in the ground floor foyer area;
(f)	End of trip facilities containing a shower and change room for staff;
(g)	The notation of ‘Food and Drink premises’ on TP-12 amended to read ‘cafe’;
(h)	A central wall at least 1.5 metres wide dividing both conference rooms as part of the front building façade and reducing the extent of glazing treatment when viewed from the street;
(i)	Locations identified on the front façade for future business signage; 
(j)	All necessary exhaust fans detailed in locations that appropriately mitigate against external amenity impacts on noise generation; 
(k)	Any changes required to reflect Conditions 3 (landscape plan), 4 (streetscape plan), 6 (CPMP), 8 (SMP), 9 (wind report), 10 (WMP) and 12 (GTP) of this permit; 
(l)	A GTP in accordance with Condition 12 of this permit; 
(m)	An updated CPMP accordance with Condition 6 of this permit. 
All of the above must be to the satisfaction of the Responsible Authority. Once approved these plans become the endorsed plans of this permit. 
2	The development as shown on the endorsed plans must not be altered (unless the Whitehorse Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority. 
Landscaping 
3	No building or works must be commenced, excluding the works detailed in the Early Works Plan, until a landscape plan prepared by a suitably qualified experienced person or firm has been submitted to and endorsed by the Responsible Authority.  Once endorsed this plan shall form part of this permit.  This plan must be generally in accordance with the plan prepared by MEMLA dated 10 November 2020, and show: 
(a)	Modifications required by Condition 1 of this permit;
(b)	Planting throughout the development including front façade treatment, balconies, terraces and vertical gardens;
(c)	Nomination of proposed services; 
(d)	A maintenance schedule including; 
i	Specific procedural measures confirming how all vertical/hanging/cascading plants will be maintained; 
ii	Ongoing maintenance plan; 
iii	Detailed on how the ‘integrated planters will work; 
iv	Soil depths for all planted species; 
v	Irrigation system/program for all common property landscaping and containerised plantings, including details of frequency and water delivery method; and
Landscaping in accordance with this approved plan and schedule must be completed before the development is occupied.  
4	Prior to the commencement of works, excluding site excavation, piling and basement slab, detailed streetscape plans must be prepared to the satisfaction of the Responsible Authority detailing works and treatments that are to take place within the road reserves between the front boundary and back of road kerb, addressing the following: 
(a)	Finished levels that maintain appropriate interface levels to surrounding land for safe and functional pedestrian movements; 
(b)	Maintenance/replacement of pedestrian and cyclist infrastructure and/or linkages; 
(c)	Existing assets in the road reserve; 
(d)	Consideration of landscaping and public realm treatment requirements of other conditions of this permit; 
(e)	Design and materials must be consistent with the Box Hill Urban Realm Treatment Guidelines; 
(f)	Existing street trees must not be removed or damaged except with the written consent of the Responsible Authority. 
5	The garden areas shown on the endorsed plan must only be used as gardens and must be maintained in a proper, tidy and healthy condition to the satisfaction of the Responsible Authority.  Should any tree or shrub be removed or destroyed it may be required to be replaced by a tree or shrub of similar size and variety. 
Car Parking Management Plan 
6	Before the development commences, but excluding the works detailed in the Early Works Plan, a Car Park Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the Car Park Management Plan will be endorsed and will form part of this permit.  The Car Park Management Plan must address, but not be limited to, the following: 
(a)	The number, dimensions, and allocation (including number and location) of car parking spaces for the residential hotel and staff; 
(b)	At least 1 electric charging station and hours provided of available use; 
(c)	The number and allocation of storage spaces; 
(d)	Policing arrangements and formal agreements; 
(e)	Detail any access controls to the parking area, such as boom gates which must take into account the required queue length required as per section 3.4 of AS 2890.1. 
(f)	Details regarding the management of loading and unloading of goods and materials. 
(g)	A schedule of all proposed signage including: 
i	Directional arrows and signage, informative signs indicating location of disabled bays and bicycle parking; 
ii	Exits; and 
iii	Any other relevant signs; 
7	The provisions, recommendations and requirements of the endorsed Car Park Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority. 
Sustainability Management Plan (SMP) 
8	Prior to the endorsement of plans under Condition 1 of this permit, an amended SMP to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  Once approved, the amended SMP will be endorsed and will form part of this permit.  The amended SMP must be generally in accordance with the SMP prepared by ADP Consulting, dated 19/12/2018, but modified to include, show or address: 
(a)	Consistency with Condition 1;
(b)	A STORM Assessment or equivalent addressing stormwater quality performance, in addition to ensuring that the Responsible Authority’s collective integrated water management expectations and requirements pursuant to Clauses 34 and 44 of the State Environment Protection Policy (Waters), are satisfied;
(c)	A STORM Assessment or equivalent addressing stormwater quality performance, in addition to ensuring that the Responsible Authority’s collective integrated water management expectations and requirements pursuant to Clauses 34 and 44 of the State Environment Protection Policy (Waters), are satisfied;
(d)	A complete, published BESS Report, with an acceptable overall score that exceeds 50% and exceed the ‘pass’ marks in the categories of Water, Energy Stormwater and Indoor Environment Quality (IEQ) to the satisfaction of the Responsible Authority;
(e)	A Preliminary BCA Section J or JV3 Energy Efficiency Assessment for non-residential areas indicating a 20% improvement in energy efficiency performance with respect to the development’s reference/base case.  The assessment is required to include indicative commitments towards thermal performance (i.e. R-values), artificial lighting and glazing (BCA Glazing Calculator indicating U- and SHGC- values) for non-residential areas;
(f)	Daylight modelling assessment for residential and non-residential areas to the satisfaction of the Responsible Authority;
(g)	Double glazing for all external windows;
(h)	Control car park ventilation with CO sensors;
(i)	Control all common, external, service and lift area lighting with sensors or timers;
(j)	Control common, service and lift area ventilation with sensors or timers;
(k)	Provide energy efficient heating, cooling and hot water systems indicating the associated COP and EER values or energy efficiency star ratings;
(l)	Include a minimum 10 kW renewable energy photovoltaic system;
(m)	Provide water efficient fixtures and appliances indicating the associated WELS ratings;
(n)	Provide secure bicycle storage areas for both residents and staff; and
(o)	Divert at least 70% of construction and demolition waste from landfill. 
The provisions, recommendations and requirements of the endorsed Sustainability Management Plan Assessment must be implemented and complied with to the satisfaction of the Responsible Authority. 
Waste Management Plan 
9	Before the development commences, but excluding the works detailed in the Early Works Plan, an amended Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the amended Waste Management Plan will be endorsed and will form part of this permit.  The amended Waste Management Plan must be generally in accordance with the Waste Management Plan prepared by Salt Engineers, dated 26th August 2019, but modified to include: 
(a)	Any updates required to provide consistency with requirements of Condition 1; 
(b)	2m3 of hard waste clearly marked; and
(c)	Private waste collection. 
Section 173 Agreement 
10	Prior to commencing any buildings and works, the owner of the Subject Land must enter into an Agreement pursuant to Section 173 of the Planning and Environment Act 1987 with and to the satisfaction of the Council, in which the owner covenants and agrees that:  
(a)	Unless with the written consent of the Responsible Authority, which may be given subject to conditions, the owner must not use, authorise or permit use of any unit shown as ‘serviced apartment’, ‘studio’, accommodation room or the like on the Endorsed Plans for any purpose other than a ‘Residential Hotel’ as defined in the Planning Scheme, to the satisfaction of the Responsible Authority; 
(b)	A Serviced Apartment must not be occupied by any person as their primary place of residence; 
(c)	The Serviced Apartments must be managed by a single management entity and shall not be leased or otherwise managed for any other form of occupation (except the provision of a manager’s residence if required); 
(d)	The conference rooms and cafe must be primarily available to the occupants of the residential hotel and must not be available for hire by external parties and; 
(e)	The owner must pay the reasonable costs of preparation, review, execution and registration of the section 173 Agreement. 
Green Travel Plan 
11	Before the development commences, but excluding the works detailed in the Early Works Plan, a Green Travel Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the Green Travel Plan will be endorsed and will form part of this permit.  The Green Travel Plan must include, but not be limited to the following: 
(a)	Consistency with the Condition 1 requirements of this permit; 
(b)	Appropriate use of the loading bay as a drop off-pick up facility; 
(c)	Possible car share arrangements; 
(d)	Information for residents and visitors about public transport options in the area; and
(e)	Measures to encourage uptake of public transport to and from the approved development.  
Early Works Condition  
12	Except with the prior written consent of the Responsible Authority, prior to the commencement of any buildings and works, an Early Works Plan must be prepared to the satisfaction of the Responsible Authority.  The Early Works Plan must provide details of all works which comprise the ‘early works’, including but not limited to: 
(a)	Piling works (Bored Piers), including Capping Beams;  
(b)	Retention system including structural columns, shotcrete walls and rock anchors;  
(c)	Bulk excavation; 
(d)	Detailed excavation;  
(e)	Excavation and pouring of pad footings, pile caps and basement slabs;  
(f)	Civil drainage retention system; and  
(g)	Crane pad footing system.  
Construction Management Plans 
13	Before the development starts, a Construction Management Plan to the satisfaction of the Responsible Authority, detailing how the owner will manage the environmental and construction issues associated with the development, must be submitted to and approved by the Responsible Authority.   
The Construction Management Plan must be prepared and managed by a suitably qualified person who is experienced in preparing Construction Management Plans in accordance with the City of Whitehorse Construction Management Plan Guidelines.  
When approved, the Construction Management Plan will be endorsed and will form part of this permit and must be complied with, to the satisfaction of the Responsible Authority, to the extent that this is in the control of the owner of the land.  The owner of the land is to be responsible for all costs associated with the works to be undertaken in accordance with the requirements of the approved Construction Management Plan. 
14	The provisions, recommendations and requirements of the approved Construction Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.  
Amenity Conditions  
15	The permitted cafe, to the satisfaction of the Responsible Authority, must only operate between the hours of: 
(a)	7am to 10:00pm Mondays to Saturdays; and
(b)	8am to 8.30pm Sundays.  
16	Unless with the consent of the Responsible Authority, the maximum number of patrons, at any one time, must not be exceeded: 
(a)	100 patrons (food and drink premise); and 
(b)	50 patrons (conference room). 
17	Alarms must be directly connected to a security service and must not produce noise beyond the premises, to the satisfaction of the Responsible Authority. 
18	All external lighting must be of a limited intensity to ensure no nuisance is caused to adjoining or nearby residents and must be provided with approved baffles so that no direct light or glare is emitted outside the site, to the satisfaction of the Responsible Authority. 
19	Noise emissions from the site must be limited to ensure compliance with the requirements of the State Environmental Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1 and the State Environmental Protection Policy (Control of Music Noise from Public Premise) No. N-2. 
Asset Protection and Drainage Conditions 
20	The development must be provided with external lighting capable of illuminating access to each the basement ramp and pedestrian areas at ground floor.  Lighting must be located, directed and shielded and of limited intensity that no nuisance or loss of amenity is caused to any person within and beyond the site. 
21	Detailed stormwater drainage and/or civil design for the proposed development are to be prepared by a suitably qualified civil engineer and submitted to the Responsible Authority for approval prior to occupation of the development.  Plans and calculations are to be submitted with the application with all levels to Australian Height Datum (AHD).  All documentation is to be signed by the qualified civil engineer. 
22	Stormwater that could adversely affect any adjacent land must not be discharged from the subject site onto the surface of the adjacent land. 
23	Prior to works commencing the Applicant/Owner is to submit design plans for all proposed engineering works external to the site.  The plans are to be submitted as separate engineering drawings for assessment by the Responsible Authority.   
24	The Applicant/Owner is responsible to pay for all costs associated with reinstatement and/or alterations to Council or other Public Authority assets as a result of the development.  The Applicant/Owner is responsible to obtain all relevant permits and consents from Council at least 7 days prior to the commencement of any works on the land and is to obtain prior specific written approval for any works involving the alteration of Council or other Public Authority assets.  Adequate protection is to be provided to Council’s infrastructure prior to works commencing and during the construction process. 
25	The qualified civil engineer when undertaking civil design must ensure that the landscape plan/s and drainage plan/s are compatible.  The stormwater drainage and on site detention system must be located outside the tree protection zone (TPZ) of any trees to be retained. 
General Conditions 
26	All pipes, fixtures, fittings and vents servicing any building on the land must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority. 
27	All buildings and works must be maintained in good order and appearance to the satisfaction of the Responsible Authority. 
Time Condition 
28	This permit will expire if one of the following circumstances applies: 
(a)	The development is not commenced within three (3) years from the date of issue of this permit; 
(b)	The development is not completed within five (5) years from the date of this permit; 
(c)	The approved use is not commenced within five (5) years from the date of this permit.  
The Responsible Authority may extend these periods if a request is made in writing before the permit expires or within six months afterwards for commencement or within twelve months afterwards for completion. 
- End of conditions -