VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P464/2021
Permit Application no. KP-2020/223	
CATCHWORDS	
Section 77 of the Planning & Environment Act 1987; Kingston Planning Scheme; Thrift Park Activity Centre; Design and Development Overlay Schedule 22; Seven Storey Building; Building Height; Neighbourhood Character; Visual Bulk; Setbacks; Transition; Carparking; Traffic; Overlooking; Shading; Impacts; Safety.	

Applicant	TBE Developments Pty Ltd 	

Responsible Authority	Kingston City Council	
Referral authorities	Transport for Victoria 	
respondentS	Beryl Elaine Smale, Sheridan Keene 	
SUBJECT LAND	189-199 & 203 Nepean Highway, Mentone 	
DATE OF HEARING	20-22 September 2021	
DATE OF ORDER	19 October 2021	
CITATION	TBE Developments Pty Ltd v Kingston CC [2021] VCAT 1213	

Order
1	Pursuant to Clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	John Demos Architects 	
•	Drawing numbers:	sheets TPA.01-TPA.02, TPA.04, revision A and dated March 2020, TPA.03, revision B and dated March 2020 and TPA.05-TPA.31, revision C and dated 2 August 2021 	
2	The decision of the responsible authority in relation to permit application no. KP-2020/223 is set aside.  
3	A permit is granted in relation to land at 189-199 and 201 Nepean Highway, Mentone.  The permit will allow: 
The construction of a mixed use development comprising a residential hotel, twenty-three (23) apartments, basement parking, alter access to a Road Zone Category 1 and the removal of an easement 
4	The permit is subject to the conditions contained in Appendix A to this decision.

Alison Slattery
Member		Ann Keddie 
Member 	

Appearances
For applicant	Mr Ian Pitt QC by direct brief.  He called urban design evidence from Ms Julia Bell of Kinetica, town planning evidence from Mr Daniel Soussan of Tract Consultants, and traffic and parking evidence from Ms Charmaine Dunstan of Traffix Group.   	
For responsible authority	Mr Andrew Clarke of Clarke Planning 	
For Transport for Victoria 	No appearance	
For respondent	Ms Beryl Smale in person 	
For Sheridan Keene	No appearance	

Information
Description of proposal	Construction of a seven storey building with two level basement.  The development accommodates 23 apartment style dwellings and 61 serviced apartments above a retail premises of 395 square metres.  Permission is required for the construction of the buildings and the use insofar as the extent of entry at ground level triggers permission.  A total of 87 car spaces is provided, with no reduction in the provision of parking sought under Cl 52.06 for the retail and dwelling use.  Parking for the serviced apartments must be provided to the satisfaction of the Responsible Authority.  A permit is also required for the removal of easements   	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the decision to grant a permit.	
Planning scheme	Kingston Planning Scheme 	
Zone and overlays	Commercial 1 Zone (C1Z)
Design and Development Overlay Schedule 20 (DDO20)	
Permit requirements	Construction of buildings and works in the Commercial 1 Zone and DDO20
Use of the site for serviced apartments and dwellings as the entry is greater than 2 metres at ground level.  
Removal on an easement.
Car parking to the satisfaction of the Responsible Authority	
Land description	As advised by parties 	

oral decision given 
1	We decided to set aside the Council decision to refuse the application and direct the Council to issue a planning permit.  Our decision and reasons were given orally at the hearing. 
2	By email dated 23 September 2021, Mr Muhllechner of Kingston City Council sought a copy of the written reasons for the decision.  These follow. 
What is this proceeding about?
3	The Applicant sought a permit from the Kingston City Council (Council) for a permit to develop the land at 189-199 and 201 Nepean Highway, Mentone for the construction of a seven-storey building with two levels of basement car parking.  The building is proposed to accommodate 23 apartment style dwellings and 61 serviced apartments above a retail premises of 395 square metres.  Permission is required for the construction of the buildings and the use insofar as the extent of entry at ground level triggers permission.  A total of 87 car spaces is provided, with no reduction in the provision of parking sought under Clause 52.06 for the retail and dwelling use.  Parking for the serviced apartments must be provided to the satisfaction of the Responsible Authority.  A permit is also required for the removal of easements.  
4	Council issued a Notice of Decision to Refuse a Permit despite the council planner recommending its approval.  The decision was based on Council’s view that the design does not respond appropriately to the desired character of the Thrift Park Activity Centre (Thrift Park AC) having regard to siting and scale.  Council submitted that the transition in form to the surrounding residential area was inappropriate, the transition to residential properties in Long Street was unreasonable, and not in line with expectations of the DDO20 or Local Policy.  Council’s position was that car parking provision was not to its satisfaction and that traffic increases would have an unreasonable impact on the residential street network, most notably in Long Street.  Landscaping was considered satisfactory subject to conditions.  
5	Ms Smale agrees with Council’s decision and is a party to this review.  Ms Smale submitted that the proposed development was an inappropriate response to the lower scale built form character of the residential area within Long Street particularly and the area in general as expressed through height and setbacks of the proposed development.  As a result, she suggested the presentation of bulk to surrounding properties is unreasonable.  She is concerned about privacy of the adjoining dwellings, that the development will exacerbate the traffic network of Long Street and that the landscaping is inadequate.  
6	The Applicant disagrees with Council and asserts that the design takes into account the constraints of the site and is site responsive, providing an appropriate built form transition to adjoining residential precincts.  The development is an appropriate response to the expectations for the Thrift Park AC and reflects the emerging character of the AC area as iterated in recent approvals at 203 and 165 Nepean Highway.  Mr Pitt argued that the design responds appropriately to its AC context and reflects the objectives within the AC as enshrined within the DDO20.  He says the car parking provision is appropriate and that parking and traffic impacts can be readily subsumed into the load capacity of both Nepean Highway and residential streets such as Long Street.  It is his contention that the Planning Policy Framework (PPF) and local policies lend support to the proposed development.  He relies on the urban design evidence from Ms Julia Bell of Kinetica, town planning evidence from Mr Daniel Soussan of Tract Consultants, and traffic and parking evidence from Ms Charmaine Dunstan of Traffix Group.
What are the key issues?
7	The key issues for determination are:
a.	Is the building form and height appropriate and are the amenity impacts reasonable?
b.	Is the car parking provision adequate and are the traffic impacts minimised?
8	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions with regard to the applicable policies and provisions of the Kingston Planning Scheme, we have decided to set aside the Council’s decision.  Our reasons follow.
planning policy framework of the Kingston Planning Scheme
9	The site is located within the Thrift Park AC, which has DDO20 as its strategic policy basis.  The C1Z accords with the outline of this AC.  We do not intend to reiterate all the provisions of the Kingston Planning Scheme here.  The details of the PPF, local policy, C1Z and the DDO20 were all well ventilated at the hearing by parties and experts alike.  Suffice it to say that the following planning attributes apply to the review site:
a.	The site is located within a Neighbourhood Activity Centre (NAC). 
b.	Within Local policy and the PPF there is an imperative towards the location of commercial uses and higher density within ACs.
c.	The site is located within the specific Thrift Park AC.
d.	The Thrift Park AC is included within the DDO20 and the C1Z.  
e.	There are no quantitative height controls or form controls in the Thrift Park AC.  
f.	Built form design requirements of the DDO20 relevantly include a desire for contemporary, interesting form that includes articulation, fenestration, and variety of materials that will provide an active frontage to Nepean Highway where passive surveillance is optimised.  A transition needs to be provided to residential properties with interfaces to be appropriate.  Overshadowing needs to be minimised.  
Is the building form and height appropriate and are the amenity impacts reasonable?
What are the Urban Design and Built Form issues?
10	Council’s grounds of refusal identify unacceptable built form, in particular an unacceptable building height and a failure to successfully transition to the surrounding built form character.  Its submission identifies its primary concern as that of the building scale, siting, width, depth, height and architectural composition.  It says that the singular rectilinear form of the building, its siting along the Nepean Highway boundary and the transition to the nearby General Residential Zone (GRZ) built form is an unacceptable design in both the physical and policy context.
11	In contrast, both Mr Soussan and Ms Bell are of the opinion that the proposal is consistent with the relevant planning controls and policy in the Kingston Planning Scheme and will contribute positively to the activity centre by the way in which the design responds to both its physical and policy context.
12	Council is particularly concerned with the visual bulk appreciated from the rear yards of the houses on the western side of Long Street.  Ms Swale is concerned with the impact from further afield.  We consider that Mr Soussan’s thorough analysis of the potential impacts on neighbouring residences demonstrates that the built form response is appropriate and will not result in any unreasonable amenity impacts.  The location of the built form along Nepean Highway allows for a generous landscape response to the rear on an awkward site configuration, and appropriately tempers the impact of the visual bulk on the modestly scaled housing in the general residential zoned land.  Ms Bell supports the increase in setback to the rear when compared to the previously approved proposal, because she says that it is effective in reducing the visual impact on the Long Street properties.
13	Mr Clarke identified the visual prominence of a building of the proposed height when approaching from both north and south along the Nepean Highway.  We do not dispute his assertion that the planning scheme does not identify the site for a landmark building.  However, we consider that the identification of an activity centre by virtue of its built form is an appropriate outcome, one already anticipated by the approved eight storey development at 165-169 Nepean Highway.  
14	In relation to the north west interface between the proposal and the existing Woolworths Supermarket where a contrast in height will be most apparent, we consider that this supermarket site is a redevelopment site in the medium term.  We find the restrained treatment of the wall on this boundary appropriate in the interim.  
15	We agree with Mr Soussan that the intervening built form on 203 Nepean Highway and 1 Long Street will moderate the visual impact of the building as it transitions to the more modest residential form to the east, but we conclude that, in addition, the intervening buildings will create a transition to the higher built form of the activity centre as viewed by those passing it.  
16	As sought by the planning scheme, the development is contemporary, articulated, and provides an appropriate interface with the residential land to the east, assisted by the existing three story townhouses on 1 Long Street and the approved four-storey apartments on 203 Nepean Highway. It has an active frontage to Nepean Highway and provides positive passive surveillance to both the north-east and south-west.  We note that DDO20 provides discretion for the decision-maker in relation to the height and setbacks.  Council’s previously approved proposal for the site, which occupied a greater footprint, was of a not dis-similar height, around 800mm lower than the proposal before us.  We consider the marginal increase in height is more than offset by the quality of the new design and the increased setbacks proposed.  Ms Bell describes the proposal as a building of high quality architectural form and finishes, with ‘an appropriate level of articulation and visual interest whilst maintaining a coherent architectural composition’.  We agree.
17	In terms of external amenity impacts, we consider that Mr Soussan’s thorough analysis demonstrates that the response is an appropriate one.  The location of the built form along Nepean Highway allows for a generous landscape response on an awkward site configuration and appropriately tempers the impact of the visual bulk on the low scale housing in the GRZ.  We agree with him that the intervening built form on 203 Nepean Highway and 1 Long Street will moderate the visual impact of the building to the north-east.
18	In terms of other potential external amenity impacts, unreasonable overlooking is managed in the design and the orientation of the site means that shadows largely fall on the public realm of the Nepean Highway.
Planning Scheme Provisions and previous approvals
19	In looking to assess the appropriateness of the form and assessing the impacts on amenity for surrounding properties, first principles dictate that the merits of the proposed development should be assessed as it relates to the Kingston Planning Scheme, both in its provisions and its policies, and in its reference materials.   
20	Firstly, we adopt the findings in the decision of DP Gibson (as she was) and Member Hadjigeorgiou in TPSC Pty Ltd v Kingston CC [2016] VCAT.  This decision relates to the site at 165-169 Nepean Highway, also within the Thrift Park AC and within close proximity of the review site.  We find no imperative to deviate from these findings as the policy and geographical context is little altered.  The exceptions are the introduction of Amendment VC169.  At Clause 15.01-5S it seeks, amongst other things, to “Ensure the preferred neighbourhood character is consistent with medium and higher density housing outcomes in areas identified for increased housing.”  Thrift Park AC within which the review site is located is one of these identified areas.  
21	The other change is that resulting from the approval of an 8 storey building as a result of TPSC Pty Ltd v Kingston CC [2016] VCAT 1221 (TPSC Pty Ltd).  
22	We agree with the Tribunal in TPSC Pty Ltd in that there is a high degree of policy support within the Kingston Planning Scheme for the type of use and development proposed, and that “there is an acknowledgement that activity centres will evolve and we accept that this evolution may include more intense residential development.”  This is a sentiment reiterated by Ms Bell who, when questioned by Mr Clarke as to whether or not the development ought be respectful of the character of the residential areas, responded that it was one the of matters that needs to be taken into account, in conjunction with, and balanced against, the expectations that the AC would continue to evolve and that the emerging character could reasonably be expected to be of a higher density and greater scale than is expected in the GRZ.  She specifically identified the Woolworths site as one that is likely to be developed into the future.  We agree with this evaluation, despite the submissions to the contrary.  We concur with Ms Bell’s interpretation of the policy and provisions of the Kingston Planning Scheme where higher density and consequently a reasonable expectation of larger scale form is specifically directed toward the TPAC and away from intact residential hinterlands.  Indeed, as the Tribunal put it in TPSC Pty Ltd “The planning scheme has long acknowledged activity centres as preferred locations where built form change and land use intensification is to be encouraged.”   
23	We specifically accept and agree with the Tribunal’s observations in TPAC Pty Ltd:
a.	The existing planning framework for the NAC provides sufficient guidance to the Tribunal against which to measure the proposed development.
b.	The policy framework for this location supports a level of intensity that ensures an acceptable outcome in terms of its impact on the adjoining and nearby land.  We consider this is a location where substantial built form change is not only anticipated but encouraged.
c.	Clauses 11, 21.03 and 21.05 envisage a range of activity centres that differ in size and function and that offer a range of housing opportunities. But just because a centre is identified as a NAC doesn’t mean that it cannot accommodate higher density residential development, particularly when all other off-site measures are found to be acceptable.
d.	Policies which apply to this site are seeking to encourage more intense development on well serviced and well-located sites like this one, essentially to reduce the impact of development on hinterland areas where less change is being sought.
We also concur with the Tribunals adoption of the concept articulated in Carlos Constructions Pty Ltd v Moreland CC [2005] VCAT 2718 that height is not problematic in and of itself, but becomes so when the resultant impacts are unreasonable.  
PPF Local Policy C1Z DDO20
24	We are satisfied that the development accords with the purposes and decision guidelines of the C1Z and the DDO20.  In this compliance we are satisfied that the development appropriately implements the Municipal Planning Strategy and the Planning Policy Framework.  We say this for the following reasons:
a.	We note, but do not rely on, the previous approval for the review site which included a 6storey building with a maximum height of 22.15 (as opposed to 22.895 metres proposed here).  This approval occupied a larger footprint than the design before us, creating a greater possible impost on the amenity of residentially zoned land.
b.	The development helps further the purposes of the C1Z in that it assists in implementing the higher density development and consolidation of lots that is sought for this area within local policy.  The inclusion of 23 apartment style dwellings and 61 serviced apartments above a retail premises of 395 square metres on the consolidated site serves to promote a more intensive use of these sites in line with the purposes of the zone and overlay and in doing so supports opportunities for sustainable urban outcomes that maximise the use of infrastructure and public transport.  In this way, the increased density of the site and the co-location and use of site facilities assists in delivering diverse housing choices.  Due to the increased density and the diversity of offer, possible uses are expanded and thus increase the viability of the commercial facilities within the Activity Centre.  In this way the development assists in improving the economic viability of the centre by increasing the local population.
c.	We agree with Ms Bell that the development, essentially broken into two forms to Nepean Highway is expressed with a slightly different punctuated facade treatment which differentiates the dwellings from the serviced apartments.  The design includes a well-articulated façade that has been thoughtfully designed in a manner that is responsive to policy, the zone and the DDO.  The frontage to Nepean Highway provides appreciable recession at ground level, that, in conjunction with the generous glazing, activates this frontage at a pedestrian level.  This, in combination with the provision of a canopy, provides a pedestrian experience not currently available along this part of Nepean Highway.  At the hearing, the Applicant clarified details of the proposed canopy which for the sake of clarity we include as a condition of permit.  
d.	To the rear boundary the development has been appropriately articulated with balconies punched out to provide visual interest.  We have reviewed the setbacks to the rear (north) to the residentially zoned properties within Long Street (3 and 5) and find these are reasonable, between 13.5 metres to 29 metres.  We find these setbacks add to the sense of a transition to the residentially zoned properties, and, in conjunction with the thicket style planting of the Banksia will provide a reasonable transition to these properties.  We also note that the orientation of these rear yards is towards the existing wall of the supermarket, which is over 7 metres in height.  
e.	To the remainder of Long Street, we have reviewed the evidence of Mr Soussan and agree that the impact of the development is lessened and virtually imperceptible in much of Long Street due to the intervening three storey form at 1 Long Street.  The development can be seen within Long Street, but at such distance that the impact of the view is reasonable.  
f.	The impact of the proposed building on the property at 1 Long Street is acceptable given its location within the AC and its orientation of its windows and open spaces to the north away from the review site.  
g.	We are satisfied that the extent of form, the proposed width across the site (72 metres), setbacks to the properties within the residential zones, depth (around 17 metres) and height of 22.9 metres represents an appropriate transition along the residential interfaces, acknowledging the clear policy and planning provision intent for this area to experience larger built form.   The proposed development as it relates to the residential properties balances the impetus towards higher scale form with the need to appropriately protect the amenity of surrounding dwellings.  
h.	The design includes good walkability and internal circulation coupled with provision of usable and pleasant, north facing communal open space.  This, in conjunction with the expressed separation of the building parts as it faces on to Nepean Highway, provides variation within the horizontal form.  The design successfully provides a stimulating and safe environment for future residents whilst not limiting the opportunities for surrounding properties.  
i.	The design will facilitate the use of sustainable transport options with the opportunity for bicycle parking provided at appropriate entry points.  The site is located near transport routes with buses available and train services from Mentone Station, all within close proximity of the review site.  
j.	Provision is made for adequate parking on site, with waste collection facilities provided, and no limitation on emergency vehicle access.  The storage of rubbish and materials for recycling can be accommodated within the basement level.
k.	We have not been presented with arguments that the provision for solar access to the building is unreasonable.  Further, no evidence is provided that demonstrates that the impacts of the development on the solar access in the public realm or on adjoining properties is unreasonable. 
l.	Illumination of the development can be achieved such that it provides a positive element of the design and provides for a safer public realm.   
m.	We have reviewed he plans and the evidence provided by Mr Sousson and are satisfied that the development responds appropriately, subject to conditions, to the objectives of Clause 58. 
n.	The provision of dwellings and serviced apartments that range in size serves to increase housing diversity to meet the housing needs of the varied population. 
o.	We do not share Council’s and residents’ concerns regarding the increase in traffic flow.  The increase in traffic will be mitigated by the location of the site close to amenities within walking distance, including and especially, daily shopping needs and public transport by way of buses and trains.  This will necessarily limit the number of vehicle trips.  In this way we are satisfied that the development will not detrimentally impact on traffic flows through and around the centre, nor unreasonably increase congestion.
p.	We note that the development provides adequate on site car parking for the retail and dwelling components in line with Clause 52.06 and adequate bicycle parking.  We are satisfied with the extent of parking provided on site for the residential serviced apartments and have not been presented with persuasive arguments to suggest that the advice of Councils Traffic Engineers nor the evidence of Ms Dustan ought be derogated.  
q.	Car parking is provided within two basement levels of the development, with two ground floor spaces for pick up and drop off (taxi and share rides).  This serves to maximise the opportunity to use ground level open space for landscaping and communal open space to the rear.  The car parking is not overly visible from the street with the exception of part of the ground level parking and the basement ramp which appropriately consolidates vehicular access to the site into one cogent access point from Nepean Highway.  In this way the provision of car parking is designed to have minimal impact or interruption in the streetscape and with the reinstatement of crossovers, provides for increased on street parking of two spaces.
r.	We are satisfied with the provision of sustainable transport measures provided and have not been persuaded that pedestrians and cyclists will face unsafe road conditions.   
s.	We have reviewed the plans and the draft conditions and are satisfied that the development is appropriately designed in regard to setbacks to Long Street properties which minimise unreasonable overlooking, overshadowing, loss of daylight and visual bulk.
25	We are satisfied that the development will not diminish the role of the Thrift Park AC as a vibrant mixed-use centre supporting a range of retail and commercial activity.  We are satisfied that the development makes a positive contribution to the image and character of the AC.  
Findings
26	We make the following findings:
a.	The proposal meets the objectives and strategic directions of the Municipal Strategic Statement – Settlement contained at Clause 21.02, Built Environment and Heritage contained at Clause 21.06 and Housing contained at Clause 21.07 of the Kingston Planning Scheme. 
b.	The proposal satisfies the requirements of Clause 58 of the Kingston Planning Scheme, in particular Clause 58.02-1 Urban context, 58.02-2 Residential policy and 58.04-1 Building setbacks. 
c.	The proposal is consistent with the purpose and objectives of the Commercial 1 Zone of the Kingston Planning Scheme. 
d.	The proposal is consistent with the purpose and objectives of the Design and Development Overlay Scheduled 20 of the Kingston Planning Scheme. 
e.	The proposal provides an acceptable built form outcome having regard to the physical and policy context.  In particular, the proposal includes an acceptable building height and transition to the surrounding built form character 
Is the car parking provision adequate?
27	The review site is located within Thrift Park AC.  The Kingston Planning Scheme seeks proposals which enhance the vibrancy and sustainability of the commercial nature and form of the centre.  One area of enhancement lies in achieving an acceptable balance between the provision of car parking and the promotion of sustainable use of public transport and other sustainable transport modes (bicycle and walking etc).  The Planning Scheme seeks to balance the tension between these competing interests in the provision of adequate car parking for development versus the imperative toward promoting greater uptake of sustainable transport.  We note to that end that bicycle parking is provided well beyond the expectations of Clause 52.34.
28	The development proposes 23 apartment style dwellings and 61 serviced apartments above a retail premises of 395 square metres.  A total of 87 car spaces is provided, with no reduction in the provision of parking sought under Clause 52.06 for the retail and dwelling use.  The number of car spaces for the serviced apartment use needs to be to the satisfaction of the Responsible Authority.
29	As noted above we are satisfied that the car parking provided is reasonable and maintains the vibrancy of the Thrift Park AC.  We find that an appropriate balance has been struck between the need to provide parking on site and the impetus towards promotion of alternative, and sustainable transport options.  We find the provision of car parking is in line with the objectives and purposes of the C1Z, the DDO20 and the purposes of Clause 52.06.
30	The review site has good access to daily services including medical, commercial and shopping facilities, all within a short walk in the TPAC.  This is bolstered by the good level of public transport available with bus routes in close proximity and trains available from Mentone Station.  The site is located near two major arterial roads, but not within the PPTN.  We are satisfied that the promotion of non-car based transport modes and the expectation for the use of share ride facilities results in a development with environmentally sustainable elements, and that this can be achieved on a site that has good access to public transport.
31	We agree with Ms Dunstan that additional traffic movements during peak hours is low and can be readily subsumed into Long Street and the surrounding road network of Nepean Highway and Lower Dandenong Road.  This opinion is bolstered by the Council Traffic department who did not object to the proposed development.  Ms Dunstan noted the ability for Long Street to accommodate between 2000 to 3000 vehicle movements per day without unduly impeding the traffic flow.  She found, and we agree, that the increase in traffic movements in this residential street will be reasonable.  
32	Mr Clarke noted the difficulty of semi-trailer and otherwise articulated trucks entering Long Street.  Ms Smale confirmed that residents have not observed trucks using Long Street.  In her observation, which we find to be valuable, large trucks wishing to head north on Nepean Highway use U-turn provisions at Parker Street (Parkdale).  This accords with the suggestion of Ms Dunstan for alternative access from the site towards the city that does not use Long Street.
33	The number of crossovers is reduced with one double crossover provided to Nepean Highway, minimising impacts to the safety of pedestrians and maximising the opportunity for on street parking (2P limited) to the frontage of the site with 10 on street parking spaces now available, an increase in two spaces.  
34	We are satisfied that an acceptable number of car parking spaces are provided and that the impacts of the development on the traffic of surrounding road networks is reasonable.  We find the proposal satisfies Clause 52.06-6 (Car Parking to the satisfaction of the Responsible Authority) in relation to the residential hotel as the car parking will not adversely affect the amenity of the locality by virtue of the increased demand for on-street car parking.  We also find that the proposal will not cause an adverse traffic impact on the area.
Conclusion
35	In conclusion, having regard to the context of the review site and the relevant policies and provisions of the Kingston Planning Scheme, we consider that the proposal will represent an acceptable planning outcome.  We will set aside the decision of the Responsible Authority and direct the grant of a permit, subject to permit conditions as per the discussions at the conclusion of the hearing.

Alison Slattery 
Member	 	Ann Keddie 
Member	

Appendix A – Permit Conditions

Permit Application No:	KP-2020/223	
Land:	189-199 & 203 Nepean Highway, Mentone	

What the permit allows	
In accordance with the endorsed plans:
The construction of a mixed use development comprising a residential hotel, twenty-three (23) apartments, basement parking, alter access to a Road Zone Category 1 and the removal of an easement 	

Conditions:
Amended Plans
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 three copies must be provided.  The plans must be substantially in accordance with the VCAT amended plans prepared by John Demos Architects, sheets TPA.01-TPA.02, TPA.04, revision A and dated March 2020, TPA.03, revision B and dated March 2020 and TPA.05-TPA.31, revision C and dated 2 August 2021, but modified to show:
(a)	The footpath reconstructed to Council’s commercial standards to the satisfaction of the Responsible Authority.
(b)	The proposed stormwater discharge located at least 500mm from the vehicle crossover.
(c)	Footpaths and garden beds/nature strips, including the provision of street trees, located along the Nepean Highway service road frontage.
(d)	A canopy/awning over the Nepean Highway service road footpath. 
(e)	The provision of an amended landscape plan substantially in accordance with the submitted landscape plan prepared by MemLa (12/3/2020; LC2420A), with such plans to be prepared by a suitably qualified landscape professional to the satisfaction of the Responsible Authority and incorporating:
i	A planting schedule of all proposed trees and shrubs, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant.
ii	The delineation of all garden beds, paving, grassed area, retaining walls, fences and other landscape works.
iii	Notes regarding site preparation, including the removal of all weeds, proposed mulch, soil types and thickness, subsoil preparation and any specific maintenance requirements.
iv	The provision of three (3) street trees within the Nepean Highway service road in front of the site, in consultation with Council’s vegetation management officer and/or Council’s public places projects team. 
(f)	Uniformity with the commitments and any changes identified within the acoustic report, required under condition 12 of this permit, shown on the plans.
(g)	Uniformity with the commitments and any changes identified within the car parking management plan, required under condition 13 of this permit, shown on the plans. 
Endorsed Plans
2	The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
Drainage and Water Sensitive Urban Design
3	Unless with prior written consent of the Responsible Authority, before the development commences the following integrated stormwater management (drainage) documents must be prepared, by a suitably qualified person, to the satisfaction of the Responsible Authority:
(a)	Stormwater management (drainage) plan(s) must be prepared, with supporting computations, showing the stormwater (drainage) works to the nominated point of discharge.  The plan(s) must show all details of the proposed stormwater works including all existing and proposed features that may have an impact on the stormwater (drainage) works, including landscaping details.
(b)	Prior to submitting detailed plans, a comprehensive stormwater management (drainage) strategy for the site must be prepared that addresses the requirements specified within Council’s “Civil Design requirements for Developers – Part A: Integrated Stormwater Management”.
(c)	The stormwater management (drainage) strategy must include a report with music modelling results demonstrating water sensitive urban design treatments that achieve Victorian best practice objectives.  These may include the use of an infiltration or bio-retention system, rainwater tanks connected for reuse, or other treatments to the satisfaction of the Responsible Authority.
(d)	The water sensitive urban design treatments as per conditions 3(a), 3(b) and 3(c) above must be implemented on-site, unless an alternative agreement is reached with the Responsible Authority.
4	Stormwater (drainage) works must be implemented in accordance with the approved stormwater management (drainage) plan and to the satisfaction of the Responsible Authority including the following:
(a)	All stormwater (drainage) works must be provided onsite so as to prevent overflows onto adjacent properties.
(b)	The implementation of stormwater (drainage) detention system which restricts stormwater discharge to the maximum allowable flowrate of 15L/s.
(c)	All stormwater (drainage) works must be maintained to the satisfaction of the Responsible authority.
5	A ground water assessment report (GAR) must be prepared by a qualified hydro-geologist to assess any possible impacts the proposed development has on the ground water table, surrounding land and buildings to the satisfaction of Council.
(a)	Should the findings of the submitted ground water assessment demonstrate that the site is likely to experience issues associated with ground water management, a ground water management plan (GMP) must be submitted to and approved by the responsible authority.
6	The basement structure must be designed and constructed to the satisfaction of the responsible authority and must address the following:
(a)	The basement design must address the findings of the ground water assessment report and ground water management plan required under condition 5, and
(b)	The basement must be a fully-tanked dry basement with no agricultural (AG) drain collection or disposal to the stormwater system and with an allowance made for hydrostatic pressures in accordance with Council’s ‘Basements and Deep Building Construction Policy, 2014’ and ‘Basements and Deep Building Construction Guidelines, 2014’, or
In the event it is demonstrated that a fully-tanked dry basement cannot be achieved or if a wet basement is proposed, ground water including an AG drain must not be discharged into the stormwater system.  Any subsurface water (groundwater) must be disposed of on-site or via an agreement with the local sewer authority.
7	In any case, where the basement design and construction, required by condition 6 of this planning permit, does not accord with the plan(s) approved under this permit, the endorsed plan(s) must be amended to the satisfaction and with the written consent of the responsible authority.
8	The stormwater (drainage) design must cater for an overland flow path through the subject site, discharging water to a road reservation as per existing conditions, for a 1 in 100-year average recurrence interval (ARI) storm event to the satisfaction of the responsible authority.  Where this is not achievable, the design must include a storage system to detain 1 in 100-year flows from the upstream catchment.  Suspended pipe design above/within proposed basement to cater for the major storms is not supported by Council and the major storm flow is preferred to be managed by contouring the finished surface levels.
Waste Management Plan
9	The waste management plan prepared by Wastemin and dated March 2020 must be implemented to the satisfaction of the Responsible Authority.  The waste management plan must not be modified unless without the written consent of the Responsible Authority.
Sustainable Management Plan
10	The sustainable management plan prepared by GIW Environmental Solutions and dated 17 July 2020 must be implemented to the satisfaction of the Responsible Authority.  The sustainable management plan must not be modified unless without the written consent of the Responsible Authority.
11	Prior to the occupation of any building approved under this permit, written confirmation from the author of the endorsed sustainable management plan, or other suitable qualified person, is to be submitted to and approved by the Responsible Authority detailing that all of the required measures specified in the sustainable management plan have been implemented, to the satisfaction of the Responsible Authority.
Acoustic Treatments
12	Concurrent with the endorsement of plans required under condition 1 of this planning permit, an acoustic report to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  The acoustic report must be prepared by a suitably qualified acoustic engineer to the satisfaction of the Responsible Authority and show how the requirements of Noise Protocol under the EPA regulations 2021 and relevant Australian Standards will be met.  The acoustic report must, to the satisfaction of the Responsible Authority, prescribe: 
(a)	The form of acoustic treatment to the proposed dwellings and serviced apartments to protect occupants from external noise sources, including but not limited to traffic noise and mechanical plant equipment from within the development and external to the site.
(b)	The mechanical plant equipment installed or constructed as part of the development.
The plans submitted to the Responsible Authority for endorsement pursuant to this condition must be updated to incorporate any acoustic engineer's recommendations to the satisfaction of the Responsible Authority and where there are recommendations of an ongoing nature, must be implemented to the satisfaction of the Responsible Authority.
Car parking Management Plan
13	Concurrent with the endorsement of plans pursuant to condition 1, a car parking management plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the plan will be endorsed and will then form part of the permit.  Traffic and car parking operations on and adjacent to the site must conform to this endorsed plan.  An electronic copy of the plan must be submitted.  The plan must include (but not limited to):
(a)	Allocating of car parking spaces to individual dwellings, the residential hotel and the retail premises.
(b)	Signage of all car parking spaces.
(c)	Line marking of car parking spaces and detail of any proposed access controls such as roller doors/gates etc. securing access to the basement car park.
(d)	Servicing of the drainage and maintenance of the basement car parking areas.
Construction Management Plan
14	Prior to the commencement of any buildings and works on the land, a construction management plan (CMP), to the satisfaction of the Responsible Authority, must be submitted to and approved by the Responsible Authority.  The construction management plan must be prepared in accordance with the City of Kingston Construction Management Policy and Construction Management Guidelines.  The construction management plan must specify and deal with, but is not limited to, the following elements:
(a)	Public safety, amenity and site security.
(b)	Traffic management.
(c)	Stakeholder management.
(d)	Operating hours, noise and vibration controls.
(e)	Air quality and dust management.
(f)	Stormwater and sediment control.
(g)	Waste and materials re-use.
When approved, the plan will be endorsed and will then form part of the permit and shall thereafter be complied with during the undertaking of all works.
Residential Hotel
15	Prior to the occupation of the residential hotel use hereby permitted, a residential hotel management plan must be prepared for the site to the satisfaction of the Responsible Authority having regard to the adjoining properties.  The plan must not be modified without the written consent of the Responsible Authority.  The plan must cover, nut is not limited to, the following points:
(a)	Specify which services apartments will be used for the purpose of the residential hotel (serviced apartments) and not dwellings.
(b)	Detail the operation of the use including the following:
(c)	Guest registration procedures.
(d)	Maximum permitted length of guest stays.
(e)	Parking arrangements for staff and cleaning providers.
(f)	The details and operation of a car parking reservation system for the residential hotel.
16	The provisions, recommendations and requirements of the endorsed residential hotel management plan must be implemented and complied with to the satisfaction of the Responsible Authority.
Infrastructure and Road Works
17	Any relocation of pits/power poles or other services affected by this development must be relocated to the satisfaction of the relevant servicing authority and the Responsible Authority, at the cost of the owner/developer.
18	Property boundary and footpath levels must not be altered without the prior written consent form the Responsible Authority.
19	The replacement of all footpaths, including offsets, must be constructed to the satisfaction of the Responsible Authority.
20	Any redundant vehicle crossovers must be removed (including redundant portions of vehicle crossings) and reinstated to the satisfaction of the Responsible Authority.
21	Vehicle crossover reinstatements must be constructed to council’s industrial strength specification or to the satisfaction of the Responsible Authority. 
22	Prior to the occupation of any part of the development approved under this planning permit, or at such other time as approved in writing by the Responsible Authority, the applicant/owner of the land must either, construct all footpaths and garden beds/nature strips located along the Nepean Highway service road frontage of the site in accordance with the plans to be prepared by the permit applicant/owner to the Responsible Authority's satisfaction and at the developer's cost (including paving and street trees), or pay an amount to the Responsible Authority towards the construction of all footpaths and garden beds/nature strips located along the Nepean Highway service road frontage of the site.  The amount payable towards this construction is to be determined in consultation with the Responsible Authority.
23	The developer/owner must contact the Responsible Authority and VicRoads and arrange traffic management plans and works zone for any works that may affect traffic (both vehicular and pedestrian) or car parking in Nepean Highway or any of the surrounding streets.  Works vehicles will not be able to stop in the street fronting the property if they cannot provide at least 3 metres clearance for other vehicles to pass or if parking restrictions already apply.  The developer will be responsible for the costs of arranging a works zone and reinstatement of car parking restriction signs, to the satisfaction of the Responsible Authority.
General Amenity Conditions
24	All works on or facing the boundaries of adjoining properties must be finished and surface cleaned to a standard that is well presented to neighbouring properties in a manner to the satisfaction of the Responsible Authority.
25	All externally-located heating and cooling units, exhaust fans and the like must not be located adjacent to bedroom windows on adjoining properties and must not be located where they will be highly visible from any public area to the satisfaction of the Responsible Authority.
26	All piping, ducting above the ground floor storey of the development (other than rainwater, guttering and downpipes) must be concealed to the satisfaction of the Responsible Authority.
27	External lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the Responsible Authority
Completion of Works
28	Prior to the occupation of the development hereby permitted, all buildings and works and the conditions of this permit must be complied with to the satisfaction of the Responsible Authority, unless with the further prior written consent of the Responsible Authority.
29	Prior to the occupation of development hereby permitted, the landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority.  Thereafter, the landscaping shall be maintained (except where that landscaping is on public land) to the satisfaction of the Responsible Authority.
Removal of Easement
30	Prior to the endorsement of plans required under condition 1 of this planning permit or as otherwise agreed to with the written consent of the Responsible Authority, the owner of the land burdened or to be burdened by the easement or restriction must, in accordance with the planning scheme or permit and with the Planning and Environment Act 1987, lodge a certified plan at the Office of Titles for registration showing the removal of the easement.
Permit Expiry
31	This permit as it relates to development (buildings and works) and use 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.
(c)	The use is not commenced within five (5) 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 -