VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P462/2021
Permit Application no. 1180/18	
CATCHWORDS	
Section 79 of the Planning and Environment Act 1987; Stonnington Planning Scheme; construction of three dwellings in Incremental change area; covenant requiring double-fronted dwelling house.	

Applicant	Mango Bonview Pty Ltd	

Responsible Authority	Stonnington City Council	
Respondents	Graeme Smith, John Johnson & Others	
SUBJECT LAND	2 Bonview Road
MALVERN  VIC  3144	
HEARING TYPE	Hearing, Online platform	
DATE OF HEARING	6 and 7 September 2021	
DATE OF ORDER	10 November 2021	
CITATION	Mango Bonview Pty Ltd v Stonnington CC [2021] VCAT 1471	

Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal – 
•	Drawings Job No. 14158 - A01 (Rev F), A02-A03 (Rev B), A04 (Rev F), A04a (Rev C), A05-A12 (Rev F), A12a (Rev C), A12b (Rev C), A13-A15 (Rev F), A15a (Rev C), A15b (Rev C), A16 (Rev E) prepared by Zeno Entity.
2	In application P462/2021, the decision of the responsible authority it set aside.
3	In planning permit application No. 1180/18, a permit is granted and directed to be issued for land at 2 Bonview Road, Malvern in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows- 
•	Construction of two or more dwellings on a lot in a General Residential Zone

Picha Djohan
Member			

Appearances
For applicant	D Scally, solicitor, Best Hooper Lawyers
He called evidence from – 
•	Robert Kelderman, town planner of Contour Consultants; and
•	John Patrick, landscape architect of John Patrick Landscape Architects.
	
For responsible authority	E Wilkinson, town planner, Stonnington City Council
	
For joint respondents	T Jones, town planner, Song Bowden Planning Pty Ltd

Information
Description of proposal	Development of three attached dwellings of three storeys	
Nature of proceeding	Application under section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit within the prescribed time.	
Planning scheme	Stonnington Planning Scheme	
Zone and overlays	General Residential Zone, Schedule 10 (Garden River & Garden Suburban Precincts)
Special Building Overlay	
Permit requirements	Clause 32.08-5 – Construction of two or more dwellings on a lot in a General Residential Zone	
Tribunal inspection	27 October 2021   	

Reasons
What is this proceeding about?
1	The applicant wishes to construct three attached dwellings of three storeys on land situated at 2 Bonview Road, Malvern (the land).
2	Stonnington City Council (Council) failed to decide the applicant’s planning permit application within the required statutory period, and the applicant filed an application for review of Council’s failure to decide under s. 79 of the Planning and Environment Act 1987.
3	After the filing of the application for review, Council decided to refuse the permit application on grounds that can be summarised as follows –
a.	The proposal is an inappropriate response to local neighbourhood character due to its excessive height, scale and bulk.
b.	The proposal fails to provide an acceptable landscape response to mitigate its excessive built form.
c.	The proposal may contravene restrictive covenant 0834412 (the restrictive covenant) as the proposed upper level is not ‘double fronted’. 
4	The joint respondents are objectors to the permit application and join with Council in its opposition of the proposal on neighbourhood character grounds and have additionally raised concerns regarding off site amenity impacts and traffic conflicts.
5	I have determined that a permit should be granted for the reasons set out below.
Preliminary Matters
6	After the commencement of this proceeding, the applicant amended the permit application plans and circulated those plans in accordance with the Tribunal’s practice note PNPE9 – Amendment of Plans and Applications.
7	After hearing from the parties, I am satisfied, that it is appropriate, pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Act 1998, to amend the permit application by substituting for the permit application plans, the following plans filed with the Tribunal – 
•	Drawings Job No. 14158 - A01 (Rev F), A02-A03 (Rev B), A04 (Rev F), A04a (Rev C), A05-A12 (Rev F), A12a (Rev C), A12b (Rev C), A13-A15 (Rev F), A15a (Rev C), A15b (Rev C), A16 (Rev E) prepared by Zeno Entity.
What are the key issues?
8	After hearing from the parties and the expert witnesses called to give evidence at the hearing, and considering all the written material before me, I have identified the following key issues requiring consideration to reach a determination in this proceeding – 
a.	Is there policy support under the planning scheme for the proposal?
b.	Is the proposal acceptable having regard to the existing and preferred neighbourhood character?
c.	Does the proposal result in an acceptable amenity outcome?
d.	Does the proposal result in an acceptable traffic and carparking outcome?
e.	Would the grant of a permit authorise anything that would result in a breach of the restrictive covenant?
9	Before addressing these issues, I set out below brief descriptions of the land, its surrounds and the proposed development.
the land and its surrounds
10	The land is located at the corner of Bonview Road and Ascot Street, Malvern and it is currently improved by an existing brick dwelling circa 1930, a garage accessed from Bonview Road and another garage accessed from a laneway abutting its eastern boundary (the rear laneway).
11	The land comprises of a regular rectangular lot of 715m2 and to the north, it shares a common boundary with 4 Bonview Road that is improved by a single storey brick dwelling (circa 1970s) setback approximately 1.2 metres from the common boundary.
12	The area surrounding the land is an established residential area with properties in Bonview Road and Ascot Street characterised by predominantly one and two storey dwellings of mixed architectural styles with varying front setbacks. There are also three storey apartment buildings in Ascot Street (located at 3, 5-7, and 9 Ascot Street).
13	In a broader sense, the land is located- 
a.	approximately 270 metres to the south of Malvern Road, Malvern and approximately 270 metres to the north of High Street, Malvern.
b.	approximately 700 metres north west of the Glenferrie Road- Malvern Major Activity Centre.
c.	within the Principal Transport Network Area.
proposed development
14	The proposed development consists of three attached dwellings over a common basement.
15	Entry to dwelling 1 is from Bonview Road and dwellings 2 and 3 are accessed from Ascot Street.
16	For each dwelling, the main living areas (with north facing courtyards) are located on the ground floor; three bedrooms are located on the first floor; a fourth bedroom is located on the second floor. 
17	Access to the basement is provided via a ramp from the rear laneway. A double garage and storage area is provided for each dwelling in the basement. The communal bin storage is also located in the basement.
18	The proposed development is of contemporary architecture with a light coloured rendered finish on the ground and first levels, and a bronze satin cladding finish for the second level.
relevant planning scheme provisions
19	The land is included in – 
a.	the General Residential Zone, Schedule 10 – Garden River and Garden Suburban Precincts (GRZ10).
b.	the Special Building Overlay.
c.	(for local neighbourhood character policy), the Garden Suburban 1 Precinct.
d.	the Incremental change area.
20	There are a number of clauses of the planning scheme that are applicable to consideration of the proposed development, however I set out below only those clauses and provisions that have bearing on the key issues between the parties.
Policy considerations
Housing
21	Clause 21.05 – Housing of the planning scheme provides local content support to State policy dealing with the supply of urban land and housing. A key issue for the location of residential development is acknowledging the potential impact of increased residential density on the heritage and neighbourhood character and amenity of established residential areas.
22	In siting residential development, it is an objective of local policy to direct the majority of new housing development to locations with the highest level of accessibility to both an Activity Centre and the Principal Public Transport Network, and away from the residential hinterland. To implement this objective, residential areas are classified according to their characteristics relative to location within, or proximate to, an Activity Centre and the Principal Public Transport Network.
23	The specific strategy for the Incremental change area, of which the land is included within, is to direct multi-unit development (2-3 storeys) to lots capable of accommodating increased density.
Neighbourhood character
24	Clause 22.23 – Neighbourhood Character Policy applies to development (including subdivision) and works in residential zones. This policy aims to improve residential design and strengthen neighbourhood character. 
25	Encouraging proposals to respect existing or contribute to the area’s preferred neighbourhood character is a fundamental principle of good planning and design.
26	The two objectives of this policy are- 
•	To ensure that development (including subdivision) and works contribute to the preferred character of the area.
•	To ensure that development (including subdivision) and works reflect the intention of the statement of preferred neighbourhood character and design guidelines for each precinct.
27	To achieve these objectives, eight neighbourhood character precincts are nominated and for each, a statement of preferred neighbourhood character is prescribed. When assessing proposals, it is policy to take into account the statement of preferred neighbourhood character and the design guidelines for the relevant neighbourhood character precinct.
28	The character statement and design objectives for the Garden Suburban 1 Precinct are found at clause 22.23-4 – Neighbourhood character precincts, of the planning scheme and provides as follows- 
Statement of preferred neighbourhood character 
The Garden Suburban 1 (GS1) precinct comprises leafy streetscapes with a range of Victorian, Edwardian or Interwar era and contemporary buildings set in established garden surrounds. In, typical streets regular front and side setbacks provide space around buildings and allow for small, well designed garden areas that contribute to the landscape quality of the street. New buildings or additions offer innovative and contemporary design responses while complementing the key aspects of form, general one-two storey scale and design detail of the older buildings. Low, visually permeable front fences retain views to gardens and dwellings from the street. Areas within a Residential Growth or Mixed Use Zone or within a substantial change area will accommodate more development with a more compact setting but with space for canopy trees and other vegetation and high quality, responsive design.
29	The design objectives for the Garden Suburban 1 Precinct are – 
•	To encourage the retention of intact, older dwellings that contribute to the character of the area.
•	To ensure new buildings and extensions do not dominate the streetscape.
•	To encourage a high quality of building detailing that references, without mimicking, the details of the buildings in the area.
•	To maintain and reinforce the rhythm of spacing between and around buildings.
•	To maintain and strengthen the garden settings of buildings and the tree canopy of the neighbourhood.
•	To prevent the loss of front garden space and the dominance of car parking structures.
•	To ensure the fences complement the predominant style of front boundary treatment in the street and retain views to dwellings and gardens.
Position of the parties on policy considerations
30	While acknowledging that the planning scheme encourages a degree of urban consolidation in the Incremental change areas, Council submitted that it also contains numerous policies and objectives of importance to maintaining and enhancing neighbourhood character “especially in residential hinterland locations”. 
31	Council also submitted that in some areas of the GRZ10, a large three storey building with minimal side and rear setbacks may be an appropriate built form outcome, but because the land is located “deep within a hinterland area, away from any activity centre or main road”, the location of the land is in an area where protection of existing character is to be given more weight. In this regard, Council emphasised that clause 21.05 contains a specific strategy to direct multi-unit developments in Incremental change areas to lots that are capable of accommodating increased density. The respondents joined Council in this submission and emphasised that, in their view, the proposal is exactly what policy seeks to avoid.
32	Relying on the same policy provisions as Council and the respondents, the permit applicant submitted that the planning scheme does not direct or mandate that land within a residential hinterland in the GRZ10 cannot take the benefit of policy expressed at clause 21.05 in respect to the expectations for land in an Incremental change area. Further, the land is capable of accommodating increased density while respecting neighbourhood character.
General Residential Zone 
33	One of the purposes of the General Residential Zone is to encourage a diversity of housing types and housing growth particularly in locations offering good access to services and transport. Another relevant purpose is to encourage development that respects the neighbourhood character of an area.
34	Clause 32.08-7 of the General Residential Zone provides that a schedule to the zone may specify the requirements for certain standards in clause 54 or 55. 
35	Clause 2.0 of the GRZ10 specifies the following requirements of clause 54 and clause 55 (noting that the requirements of clause 55 are applicable to this permit application).

Setbacks
Front setback
36	As the GRZ10 does not specify a minimum street setback, standard B6 applies. The objective of Standard B6 is to ensure that the setbacks of buildings from a street respect the existing or preferred neighbourhood character and make efficient use of the site.
37	Where the relevant site is located on a corner, the minimum front street setback is specified in standard B6 as “the same as the setback of the front wall of the existing building on the abutting allotment facing the front street, or 9 metres, whichever is the lesser.” 
38	In the present context, the front wall of the dwelling at 4 Bonview Road is setback 10.57 metres and the setback of the carport on that land is 7.1 metres. Accepting that the Bonview Road presentation of the proposed development is the intended front street setback, a 9 metre setback to Bonview Road is required to meet Standard B6.
39	The proposal has a front setback to Bonview Road that varies from 6.2 metres to 6.7 metres. Council did not take issue with the provision of a front setback to Bonview Road less than specified under standard B6, however the respondents did take exception with the front setback to be provided submitting that such a variance would erode the existing landscape character of the surrounds.
40	Mr Keldmerman’s evidence was that the front setbacks of 4 Bonview Road (irrespective of whether you adopt the setback of the dwelling or the carport) is an anomaly in Bonview Road as the prevailing setback in the street is in the order of 6 metres. I accept Mr Keldermen’s evidence in this regard after consideration of his analysis of the setbacks in Bonview Road confirmed by my site inspection.
Side walls 
41	Because the land is a corner site, Standard B6 prescribes that side walls of a new development should be setback the same distance as the setback of any front wall of any existing building on the abutting allotment facing the side street or 2 metres, whichever is the lesser. There are no allotments abutting the land in Ascot Street but in any event, the proposed setbacks on the ground floor facing Ascot Street vary from 2 metres (at the western end) to 3.06 metres (at the eastern end). The first floor and second floor setbacks are all greater than the ground floor setbacks. Accordingly, the proposal meets the requirements of Standard B6 for side walls on a corner site. 
Side and rear setbacks
42	The requirements for side and rear boundary setbacks specified under Standard B17 are varied for land included in the GRZ10. The objective for Standard B17 is to ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings. It is reasonable to proceed, in the absence of anything to the contrary in the planning scheme, on the basis that the variation to Standard B17 applicable for land included in the GRZ10 has a similar objective.
43	At basement level, the proposal is not setback a minimum of 2 metres for a distance of 5 metres behind the front façade on either the northern or southern boundary. The proposed setback of the basement from the northern boundary is 1.5 metres and from the southern boundary is 1.2 metres. The cumulative shortfall is in the order of 300mm.
44	Accordingly, the proposal does not meet the requirements of the variation to Standard B17 applicable in the GRZ10. 
45	Mr Kelderman’s evidence was that the western end of the basement on the southern boundary could be easily modified to meet the required varied setback (by setting the basement further to the south by 500mm), however given that no amenity impact could arise from the proposed location of the basement’s setback, it is a matter that should be resolved by consideration of the impact of the shortfall on neighbourhood character. 
46	Having considered Mr Patrick’s statement, Mr Kelderman was of the opinion that there would be opportunity for suitable landscaping to be provided along both the northern and southern boundaries that would maintain and contribute to neighbourhood character. In Mr Kelderman’s opinion, strict compliance with the setback specified for the basement in clause 3 of the GRZ10 is not required to maintain neighbourhood character or to ensure the preferred neighbourhood character of the Garden Suburban 1 Precinct is advanced.
47	Mr Patrick, in his evidence, confirmed that the proposed setbacks along the northern and southern boundary would be sufficient for the vegetation proposed to be planted in those locations to be established and maintained.
48	I accept the evidence of Mr Patrick that the proposed landscaping along the northern boundary would not be compromised by the proposed location of the basement as shown on the amended plans. Accordingly, I do not consider that it is necessary for any adjustment to be made to the basement setbacks from either the northern or southern boundary of the land to allow for small well designed garden areas to be provided on the land. The proposed setbacks will achieve this aim of the preferred neighbourhood character of the Garden Suburban 1 Precinct.
49	Along the northern boundary, the proposal has a setback of – 
a.	2.58 metres at ground floor level, which is within the specification of 1 metre required under Standard B17.
b.	3.5 metres at first floor level, within the specification for minimum setbacks of 1.74 metres to 2.25 metres for wall heights of 6.06 metres and 7.9 metres.
50	In respect to the setback of the second floor level to the northern boundary, Mr Kelderman’s evidence (as supported by a reading of Drawing A09 Revision F) was that setback was 4.81 metres. Section CC shown on Drawing A12a Revision C, shows a section of the proposal at the eastern elevation of dwelling 3 which also shows the highest point of the proposal at 9.65 metres. 
51	Mr Kelderman’s evidence was that Standard B17 specifies that for a height of 9.65 metres the required setback is 4.74 metres and the Rescode template shown on section CC is inaccurate as there is full compliance with Standard B17. 
52	Having regard to the definition of ‘building height’ at clause 73.01 of the planning scheme, I am satisfied that the maximum height of the proposal is at the eastern elevation of dwelling 3 and is 9.65 metres. I am satisfied that the proposal complies at ground, first and second levels with the varied requirements of Standard B17 for setbacks along the northern and southern boundaries. 
Overlooking
53	It is an objective of clause 55.04-6 to limit views into existing secluded private open space and habitable room windows. Where a habitable room window, balcony, terrace, deck or patio has a direct view into a habitable room window or a secluded private open space of an existing dwelling, Standard B22 prescribes certain treatments to limit such views. 
54	Concern was raised by the respondents that unreasonable overlooking could occur from the proposal to habitable windows facing the southern boundary of 4 Bonview Road.
55	Mr Kelderman’s evidence was that if it was demonstrated that an available direct view within 9 metres to the habitable windows of 4 Bonview Road from the second floor balcony of dwelling 1 existed, then a condition could require an integrated screen device to prevent overlooking. He was concerned to ensure a detailed assessment be made as to the need for any mechanism to avoid overlooking and the form that it would take.
56	There were also concerns raised by the respondents regarding overlooking that could occur from the terrace of dwelling 3 to an outdoor shower at 1 Shaftsbury Avenue. Mr Kelderman’s evidence was that the distance between the terrace of dwelling 3 and the outdoor shower was in the order of 18 metres (beyond the horizontal distance of 9 metres specified in Standard B22) and the quantitative requirement of Standard B22 is met by the proposal. Given the relative separation distances, I agree with Mr Kelderman and in the circumstances, the occupants of 1 Shaftsbury Avenue may be reasonably expected to take simple measures to protect their privacy should they wish to do so.
57	In Mr Kelderman’s opinion, screening treatment on the terrace of dwelling 3 to the height of 1.7 metres is not necessary to limit views across the backyard of 4 Bonview Road because the area that may be overlooked is not the primary private open space for the occupants of 4 Bonview Road and any overlooking would not constitute ‘unreasonable overlooking’ given the secondary nature of the private open space in the south eastern corner of 4 Bonview Road. Considering the orientation of the dwelling at 4 Bonview Road and the location of the primary private open space adjacent to the common boundary with 6 Bonview Road, I agree with Mr Kelderman.
58	In my opinion, to the extent that any of the overlooking concerns raised by the respondents result in non-compliance with the requirements of Standard B22, they can all be resolved by the imposition of reasonable conditions requiring appropriate screening treatment (as envisaged by Standard B22) and do not amount to sufficient grounds to refuse the application. 
Building height
59	Clause 32.08-10 of the General Residential Zone provides that a residential building must not exceed the maximum building height or number of storeys specified in a schedule to the zone.
60	Clause 3.0 of the GRZ10 provides that a residential building must not exceed 9 metres unless the slope of the natural ground level at any cross section wider than 8 metres of the site of the building is 2.5 degrees or more, in which case the height of the building must not exceed 10 metres.
61	Accounting for the slope of the land, the maximum building height for the land prescribed under clause 3.0 of the GRZ10 is 10 metres.
62	As the highest point of the proposal is at 9.65 metres the proposal complies with the requirements of clause 3.0 of the GRZ10.
Site coverage
63	Clause 55.03-3 provides that the objective of requiring a standard for site coverage is to ensure that the site coverage of a development respects the existing or preferred neighbourhood character and responds to the features of the site.
64	Standard B8 provides that the site area covered by a building should not exceed- 
•	The maximum site coverage specified in a schedule to the zone, or
•	If no maximum site coverage is specified in a schedule to the zone, 60 percent.
65	Clause 2.0 of the GRZ10 varies Standard B8 to the extent applicable to basements and requires that the site coverage of basements should not exceed 75% of the site area. The site coverage of the basement is 60.8% and otherwise site coverage is 51.4%. Accordingly, the proposal complies with clause 2.0 of the GRZ10 and Standard B8.
Landscaping
66	An objective of the site layout and building mass provisions in clause 55.03 is to ensure that development respects the landscape character of the neighbourhood.
67	Standard B13 sets out what a landscape layout and design should achieve and generally requires that development should provide for the retention of planting trees, where these are part of the character of the neighbourhood.
68	Clause 2.0 of the GRZ10 contains a variation to Standard B13 that additionally requires that at least one canopy tree should be planted on the site.
69	Mr Patrick’s evidence was that the proposed landscape plan- 
a.	contributes to an improved site presentation to both Bonview Road and Ascot Street;
b.	complies with the varied Standard B13 requirement by providing a new canopy tree in the front setback while retaining the existing canopy tree in that setback;
c.	can be implemented in the setbacks as shown on the amended plans including the proposed canopy trees;
d.	will complement the articulation of the built form presentation to Ascot Street such that each dwelling will appear as separate dwellings along that frontage. 
70	I accept Mr Patrick’s opinion that the above outcomes may be expected upon the implementation of the proposed landscape plan.
Fencing
71	An objective of clause 55.06 – 1 Design detail objective is to encourage front fence design that respects the existing or preferred neighbourhood character. Standard B32 requires that where not specified in a schedule to the General Residential Zone, front fencing should have a maximum height of 1.5 metres. The proposed fencing to Bonview Road varies from 1.73 metres in height (at the northern boundary) to 1.46 metres in height (at the southern boundary). The proposed fencing along Ascot Street varies from 1.49 metres (at the western boundary to 1.895 metres at the eastern boundary). Considering the variance in fencing heights and types in Bonview Road and Ascot Street, I am satisfied that the proposed fencing would result in an acceptable outcome in the context of surrounding development and would not have a detrimental impact on the advancement of the preferred neighbourhood character for the Garden Suburban 1 Precinct.
Decision guidelines
72	The decision guidelines for the General Residential Zone requires consideration of the following matters (relevant on the facts of this application) – 
•	The planning policy framework.
•	The purpose of the General Residential Zone.
•	Any other decision guidelines specified in the GRZ10.
•	The objectives, standards and decision guidelines of clause 55.
73	Clause 5.0 of the GRZ10 contains additional decision guidelines (that apply in addition to those under clause 32.08) and that require, on the facts of this application, consideration of whether the proposal meets the preferred neighbourhood character statement and design objectives for the precinct in which the land is located.
74	To the extent relevant to an assessment of the proposal, the decision guidelines for clause 55 requires consideration of –
•	the design response;
•	the impact on amenity of existing buildings;
•	any neighbourhood character objective, policy or statement and the impact of the proposal on neighbourhood character;
•	the visual impact of the proposal when viewed from the street and from adjoining properties;
•	the location and size of gardens and predominant plant types in the neighbourhood.

consideration of the proposal
75	At the core of the opposition by both Council and the respondents is the scale, siting and mass of the proposal and whether the proposal dominates the existing streetscape.
76	Something was sought to be made by Council regarding the land’s location within the ‘residential hinterland’. Whilst all parties agreed, as did Mr Kelderman, that the land is in the ‘residential hinterland’, no one sought to define what is meant by the term and why, in the context of this application, it is determinative or important that the land is so located.
77	By reference to the context in which the term ‘residential hinterland’ appears in the objective to clause 21.05-2, the term may mean residential areas that do not have the highest level of accessibility to both an Activity Centre and the Principal Public Transport Network. Further, by reference to the strategies for that objective, the conclusion could be drawn that the term ‘residential hinterland’ means residential areas that are included within an Incremental change area. In the end, it is my opinion that it is not determinative to this application whether the land is within a ‘residential hinterland’ or ‘deep within a residential hinterland’ and that is because there is no character statement, design objective, strategy or decision guideline that apply to proposals on land in a ‘residential hinterland’. The planning scheme’s approach to the consideration of proposals on residential land is more nuanced than merely applying a generalised term and seeking to use that label as a matter against which a proposal is to be considered.
78	On the other hand, the land’s inclusion in the Incremental change area and Garden Suburban 1 Precinct is relevant to the consideration of this proposal. This is because the inclusion of the land within the Incremental change area reflects the land’s attributes vis-à-vis its accessibility to activity centre and transport infrastructure (noting the land’s inclusion in the Principal Public Transport Network) which make it a candidate for multi-unit development of 2-3 storeys if it can accommodate an increased density.
79	Whether the land can accommodate increased density does not require an assessment of the broader strategic reasons for its inclusion in the Incremental change area, but rather consideration of the site requirements of the GRZ10 and the discretionary considerations raised in the preferred neighbourhood character and design guidelines for the Garden Suburban 1 Precinct.
80	Of particular concern to Council and the respondents was the extent to which the proposal would impact on the streetscape of Bonview Road and Ascot Street. Council and the respondents, relying on the proposal’s three storey form rather than its height in metres, submitted that the proposal failed to provide an appropriate design response because it did not reflect the predominant 1-2 storey scale of the existing streetscape. 
81	In my opinion, the opportunity under the planning scheme to require varied standards to height, scale, setbacks, site coverage and other clause 55 matters, to reflect a particular neighbourhood character is provided under clause 32.08-7 which allows a schedule to the General Residential Zone to specify variations to clause 55 to reflect the outcomes sought in a particular neighbourhood.
82	In respect to building height, clause 32.08-10 states that if no maximum building height or maximum number of storeys is specified in a schedule to the General Residential Zone, then the requirements of clause 32.08-10 prevail to impose the applicable maximum height and number of storeys that a new development must not exceed. 
83	Relevant to consideration of this application, clause 3.0 of the GRZ10 does impose a varied maximum building height requirement for new development expressed only in maximum height in metres and not as a maximum number of storeys. Therefore, the maximum number of storeys for a new development remains three storeys as required under clause 32.08-7. In my opinion, it is in that context that the weight to be given to the design responses expressed in Clause 22.23 for the Garden Suburban 1 Precinct should be considered.
84	Further, the decision guidelines for the GRZ10 require consideration of whether the proposal meets the preferred neighbourhood character statement and design objectives for the precinct. The direction to consider these matters, does not mandate the outcome expressed in the design responses to the design objectives for the Garden Suburban 1 Precinct. 
85	Against the background of my findings on the proposal’s compliance with the varied requirements of clause 55 (as set out in the GRZ10), and the justification for any variance with those requirements, I will now consider the proposal against the design objectives for the Garden Suburban 1 Precinct.
Design Objectives for the Garden Suburban 1 Precinct
86	The existing streetscape of Bonview Road is not characterised by homogenous dwelling styles or types. The same can be said of Ascot Street. The two storey dwellings on the western side of Bonview Road to some degree dominate the single storey dwellings on the eastern side of Bonview Road because of the higher elevation of the western side of the road. Also notable is the land’s location on the corner of Bonview Road and Ascot Street which will inevitably mean that the proposal will be a prominent feature of the southern approach to Bonview Road from Eva Street via Ascot Street. I have taken these matters into account when considering the design objectives set out below.
87	The preferred character of the Garden Suburban 1 Precinct is deemed to be achieved by consistency with the design guidelines set out for the precinct in clause 22.23. Each relevant design objective is dealt with in turn.
Ensuring new development does not dominate the streetscape
88	The relevant design objective and corresponding design response is expressed as follows.

89	As is apparent from the expression of the design objective above, there is no mandate contained in clause 22.23 that new development in the Garden Suburban 1 Precinct must not exceed 1-2 storeys. Indeed, the corresponding design response does not seek that new development must not exceed 1-2 storeys but rather that (for this land) buildings should reflect the predominant 1-2 storey scale of the streetscape. 
90	In the context where – 
a.	one of the objectives of the General Residential Zone is to ensure that new development respects the neighbourhood character of the area; 
b.	the GRZ10 is the mechanism in which the varied standards required to respect the neighbourhood character of land within the Garden Suburban Precincts is expressed; 
c.	the GRZ10 varies the maximum building height from that set out in clause 32.08-10 and expresses that height in metres and does not require maximum height of less than three storeys,
it is difficult to conclude that a proposal of three storeys with a maximum height of 9.65 metres (less than the maximum 10 metre height limit required by clause 3.0 of the GRZ10) is one that is not complemented by the planning scheme as complementing the predominant scale of the neighbourhood. If Council intended to impose a 1-2 storey height limit in the Garden Suburban 1 Precinct, then clause 3.0 of the GRZ10 was the appropriate place to do so. 
91	Further, considering the degree of compliance of the proposal with – 
a.	the varied requirements of Standard B17;
b.	the requirements of Standard B6;
c.	the varied requirements of Standard B8,
I am satisfied that design of the proposal will not dominate the relevant streetscapes. I note that each of the above standards has the common objective of ensuring that new development respects existing or preferred neighbourhood character.
Encourage a high quality of building detailing
92	I am satisfied that the degree of articulation on all facades of the building at ground and first floor level together with the mansard roof style of the second storey produces a contemporary and innovative design in a neighbourhood that is characterised by dwellings varying architectural styles and form.
Maintain and reinforce rhythm of spacing
93	The design response of this design objective requires the provision of adequate space between and around buildings to accommodate vegetation. Contrary to the respondent’s submission, this design objective does not require that each of the three dwellings that form part of this proposal be contained in a separate building. Mr Patrick’s evidence established that there is adequate space around the proposed building to accommodate vegetation.
Maintain and strengthen garden settings
94	I am satisfied, having accepted Mr Patrick’s evidence, that implementation of the proposed landscape plan – 
a.	will include trees and shrubs that will contribute to the landscape quality of the streetscapes of both Bonview Road and Ascot Street;
b.	will retain an existing mature tree in the front setback of the land;
c.	will provide for the planting of new canopy trees in the front and side setbacks, made possible by the location of single point of vehicle access from the rear laneway; 
d.	is possible within the proposed basement setbacks; and
e.	will result in an improved interface with 4 Bonview Road along the northern boundary of the land.
Prevent loss of front garden space
95	I am satisfied that the location of a single point of vehicle access from the rear laneway will minimise the hard impermeable surfaces within the front setback thereby maximising the amount of front garden space available on the design of the proposal. The removal of the existing vehicle access on Bonview Road will make available additional front garden space not currently vegetated.
Ensure fences complement predominant style 
96	I accept Mr Kelderman’s evidence of the variance in fencing styles in Bonview Road which was confirmed by my site inspection and I am satisfied that the proposed fencing will retain views to the dwellings and the landscaping to be provided.
Conclusion on neighbourhood character considerations
97	Taking into account my findings above, I am satisfied that the proposal will not have a detrimental impact on the preferred neighbourhood character for the Garden Suburban 1 Precinct and that the land is capable of accommodating the increased density proposed.

tRAFFIC
98	The respondents also raised concerns regarding – 
a.	the available sight line splay at the proposed driveway;
b.	the conflict between pedestrian traffic and development traffic; 
c.	the ability for B99 vehicles to safely use the basement.
99	Council did not join the respondents in these concerns.
100	To support their concerns, the respondents commissioned a review of the proposal by a traffic consultancy, Salt3, and relied upon a memorandum provided by that consultancy as part of the respondents’ submission. 
101	The permit applicant in turn relied upon a memorandum from Mr Wang of Trafficable, in response to the matters raised in the Salt3 memorandum. 
102	Neither the permit applicant, nor the respondents, provided expert evidence in accordance with the Tribunal’s practice note or made available for questioning the authors of the respective memorandums. 
103	In the circumstances, the memorandums provided by the permit applicant and the respondents are not evidence that can be tested or interrogated. In the circumstances, I have treated the opinions conveyed in both memorandums with some caution. 
104	Salt3 concluded that there would be an increase of two vehicle movements each peak hour by the proposal and this would amount to a negligible impact on traffic flow on Eva and Ascot Streets. This conclusion was drawn from consideration of a vehicle and pedestrian count conducted by the local residents on 11 June 2021. Mr Wang agreed with this conclusion. 
105	Even though the methodology adopted to conduct the survey and compile its results by the respondents was neither explained nor investigated, I am prepared to accept the conclusion that this proposal will result in a negligible impact on traffic volumes in Eva and Ascot Streets because the proposal amounts to a net increase of two dwellings on the local traffic network, is by any measure, minimal.
106	Salt3 recommended that a swept path analysis should be provided for a B99 vehicle as the application material did not contain such an analysis to establish that the basement could be accessed by larger vehicles. 
107	Mr Wang’s memorandum contained such an analysis. I have considered that analysis and the accompanying commentary and I am prepared to accept the conclusion that a B99 vehicle can adequately use the basement ramp and access the proposed basement garages. The respondents did not contend that the analysis could not be relied upon.
108	The sightline corner splay to the left of the ramp was considered to be insufficient by the respondents. Mr Wang’s response was that the proposed traffic arrangements involve a left in, right out arrangement and that a convex mirror can be installed to further improve sightlines. I have considered the solution proposed by the permit applicant and I am satisfied that it will appropriately compensate for the design deficiency. I also take comfort from the fact that the suggestion of the installation of a convex mirror originally came from Council’s internal traffic unit when it assessed the proposal and found it to be a suitable solution. 
109	Salt3 considered the survey conducted by the respondents showed a relatively high use of the rear laneway by pedestrians including children. Safety concerns for these pedestrians were raised by the respondents.
110	Even accepting the results of the survey, I am not satisfied that the use of the rear laneway or the pedestrian path that crosses the rear laneway by pedestrians raised a conflict that amounts to a sufficient reason to refuse the proposal for the following reasons – 
a.	in normal use, the rear laneway is a low speed environment;
b.	the proximity of the ramp to the intersection of the rear laneway with Ascot Street would maintain the low speed environment otherwise anticipated in the rear laneway and there is no objective basis to conclude that residents of the proposal would behave otherwise; and
c.	the rear laneway, while it may be used by pedestrians (including children) to access Ascot Street to the south, is essentially provided for rear vehicular access for properties fronting Bonview Road and Shaftsbury Avenue. Pedestrians (or parents of children) that are concerned for pedestrian safety as a result of the increased use of the laneway by the addition of two households as a result of this proposal, have alternative pedestrian conducive paths in either Bonview Road or Shaftsbury Street on which to travel.

restrictive Covenant
111	The land is encumbered by a restrictive covenant contained in Instrument of Transfer 0834412 (the covenant) that in the relevant part provides– 
will not erect any buildings upon the said land hereby transferred other than a double fronted dwelling house with outbuildings and such building shall be constructed of new material only and shall be in accordance with the plans and specifications to be approved by the said Elliot Carnes or his heirs executors and administrators and will not permit such house to be used for any purpose other than a dwelling.
112	Section 61(4) of the Planning and Environment Act 1987 provides – 
If the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant the responsible authority must refuse to grant the permit unless a permit has been issued or a decision made to grant a permit to allow the removal or variation of the covenant.
113	Three questions arise from a consideration of the above extract of the covenant – 
a.	Whether the covenant precludes more than one dwelling?
b.	Whether the proposal (as a whole or for each individual dwelling) is a double fronted dwelling house?
c.	Is the approval of Elliot Cairnes or his heirs executors administrators and transferees required before the grant of a permit?
More than one dwelling?
114	In Tonks v Tonks, Bongiorno J held – 
…If the parties to the original covenant had wished to restrict the number of dwelling houses built on each of these lots they could have done so very simply and definitively by replacing the word “a” in the covenant with the word “one”, or by making some similar simple amendment. The true construction of the covenant is that it prohibits the placing of any building on the land unless that building is a dwelling house. Provided that any building constructed can be properly described as a dwelling house there would be no breach of the covenant. The covenant says nothing, in my opinion, as to the number of dwelling houses which might be built. To import a restriction as to the number of houses which might be built on lot 3 into the covenant would extend its effect beyond the words used by the parties without any warrant for doing so.
115	Applying the above approach of Bongiorno J to the construction of this covenant leads to the conclusion that the covenant does not preclude more than one dwelling on the land.
Is the proposal a ‘double fronted dwelling house”?
116	Answering this question requires construction of what is meant by ‘double fronted’ and then consideration of whether that requirement applies to each proposed dwelling house or only the single building proposed.
117	In Munns v Watson the Supreme Court of Victoria was concerned with the interpretation of a restrictive covenant which prevented the erection on land of any buildings “except a double-fronted house with outbuildings for residential purposes”. There it was proposed to construct a double fronted villa, consisting of two dwellings under the same roof, separated vertically by a dividing wall which afforded no means of communication between the two dwellings such that, like in the present circumstances, each dwelling was self-contained and having a separate means of entrance. It was held in Munns that the covenant would not be breached by the construction of the double fronted villa containing the two dwellings. Unfortunately, given the brevity of the decision, no further assistance can be gleaned from the facts of Munns as to whether the conclusion that the villa was double fronted was drawn by the court from an examination of one or both entrances to the dwellings.
118	Previous decisions of the Tribunal have adopted two differing approaches. 
119	The first approach, following the reasoning in Taha v Moreland CC, is said to adopt a purposive approach to the interpretation of what is meant by ‘double-fronted’ by reference to the likely purpose of the restriction at the time the covenant was entered. In Taha, the Tribunal was of the view that, when the covenant was read as a whole, the purpose of requiring a dwelling to be ‘double-fronted’ was to ensure that a ‘better’ or more substantial class of dwelling would be constructed than is represented by a ‘down market’, basic, single-fronted dwelling.
120	The second approach, taken by the Tribunal in Berenyi v Moreland CC, acknowledged that the term “double-fronted” is an architectural expression and adopted the ordinary and everyday meaning of the term (by reference to the Oxford Dictionary definition) as a dwelling “having two fronts or faces; (of a house) having the principal windows either side of the front door.” 
121	The Tribunal in Berenyi noted that the approach in Taha seemed to proceed on the basis that the test is whether the purpose of the covenant is served, not whether the proposal answered the wording of the covenant. 
122	In Berenyi, the Tribunal was also of the view that because there were four separate dwellings proposed and not merely a single building divided into four occupancies, each dwelling must be double-fronted.
123	After consideration of both approaches, I adopt the reasoning in Berenyi because I agree that the task is to enquire whether the proposal answers the wording of the covenant and not to give effect beyond the words used in the covenant.
124	On the facts before me, each proposed dwelling has principal windows on either side of the front door. In my view, this is sufficient to meet the ordinary and everyday meaning of ‘double-fronted’. It is not necessary that each dwelling be ‘double-fronted’ at all levels as this would lead to the absurd outcome where a dwelling of more than one level would be required to have a front door on each level.
Approval of plans
125	In Reid v Boroondara CC & Skinner, the then President of the Tribunal considered a covenant that required in part – 
the plan whereas has been first submitted to and approved by the said Kate Lynch and James Byrne their heirs, executors, administrators or trustees respectively.
126	In concluding that a grant of a permit in the absence of approval of the development plans would not result in a breach of the covenant, the President reasoned as follows – 
7	It is necessary to ask the question what would the grant of the permit in this case authorise? The answer is the construction of a house.
8	It is then necessary to ask whether a permit authorising the construction of the house would result in a breach of a registered restrictive covenant. The answer is that it may or that it may not: that will depend upon what happens in the future; in particular it will depend on whether the beneficiaries of the covenant approve the plans of the proposed dwelling. Hence it cannot be authoritatively said that the grant of the permit will authorise something which will be in breach of a registered restrictive covenant.
9	The issue really turns on when approval under the covenant must be given. I interpret the words used in the covenant to mean that the approval must be given before building commences. I discern this from the language in the covenant: that language connects the submission of and approval of the plans to a promise not to erect or build the dwelling house. It follows that the approval of the plans may occur at any time before the erection commences.
10	Given that a period of time will inevitably lapse between the grant of the permit and the commencement of the erection of the building, the requirements of the covenant may, or may not, be satisfied before the erection commences. It follows that the grant of the permit would authorise something which may result in a breach of a registered restrictive covenant. But the legislative mandate is that a permit must be refused if the grant of the permit would authorise something which would result in a breach of registered restrictive covenant. This higher standard has not been satisfied.
127	In Costa v Glen Eira City Council (Red Dot), the Tribunal adopted the reasoning of the President in Reid.
128	In this application, the grant of a permit in circumstances where approval to the amended plans has not yet been obtained from “the said Elliot Cairnes or his heirs executors administrators and transferees” would not, in my view, result in anything that would breach the covenant. I note that s.61(4) of the Planning and Environment Act 1987 is a direction to withhold the grant of a permit in certain circumstances, it is not a power to enforce the terms of a restrictive covenant.
conclusion
129	In conclusion, after considering the relevant decision guidelines, the requirements of clause 65 and section 60 of the Planning and Environment Act 1987, I am satisfied that grant of permit, on the conditions contained in Appendix A, would result in an acceptable planning outcome. Further, I find that the grant of a permit would not result in anything that would breach the restrictive covenant contained in Instrument of Transfer 0834412.
130	The decision of Council is set aside, and Council is directed to issue a permit on the conditions set out in Appendix A to these reasons.

Picha Djohan
Member			

Appendix A – Permit Conditions

Permit Application No:	1180/18	
Land:	2 Bonview Road
MALVERN  VIC  3144	

What the permit allows	
In accordance with the endorsed plans:
Clause 32.08-5 – Construction of two or more dwellings on a lot in a General Residential Zone	

Conditions:

1.	Before the commencement of the development, 1 copy of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the VCAT Amended Plans (known as Job No. 14158, Drawings A06 to A12, Revision F, dated 30 June 2021, and prepared by Zeno Entity) but modified to show:
a.	Fixed external shading or small canopies to all north facing habitable rooms at levels 1 and 2.
b.	Any changes required by Conditions 3 (SDA), 5 (WSUD), 7 (Landscape), 9 (TMP) and 12 (Tree Deed).
c.	Sight line diagrams to demonstrate that there are no direct views into habitable room windows of the dwelling at 4 Bonview Road, Malvern from the level 2 terrace of the dwelling 1 in accordance with Standard 22 of the Stonnington Planning Scheme (“the view line”). If the diagram shows the view line in non-compliance with Standard B22, the plans must be amended to include an integrated screening device (e.g. incorporating planter and/or shelf but not 1.7m vertical screen) ensure the view line complies with Objective 55.04-6 of Stonnington Planning Scheme.
d.	The level 1 floor plan (Drawing A08) amended to show the east facing terrace of dwelling 3 screened in accordance with “Detail 3” (Drawing A12).
e.	Any changes to the front fence required under condition 9.
f.	Convex mirror to south side of ramp to ROW to improve sightlines to the north up the ROW.
All to the satisfaction of the Responsible Authority. 
2.	The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason, without the prior written consent of the Responsible Authority.
3.	Prior to the endorsement of any plans pursuant to Condition 1 a Sustainable Design Assessment (SDA) must be submitted to and approved by the Responsible Authority. Upon approval the SDA will be endorsed as part of the planning permit and the development must incorporate the sustainable design initiatives outlined in the SDA to the satisfaction of the Responsible Authority. Amendments to the SDA must be incorporated into plan changes required under Condition 1. The report must include, but not limited to, the following: 
a.	Demonstrate how Best Practice measures from each of the 10 key Sustainable Design Categories of Stonnington Council’s Sustainable Design Assessment in the Planning Process (SDAPP) have been addressed.
b.	Identify relevant statutory obligations, strategic or other documented sustainability targets or performance standards.
c.	Document the means by which the appropriate target or performance is to be achieved. 
d.	Identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring.
e.	Demonstrate that the design elements, technologies and operational practices that comprise the SMP can be maintained over time.
4.	All works must be undertaken in accordance with the endorsed Sustainability Management Plan to the satisfaction of the Responsible Authority. No alterations to the Sustainable Management Plan may occur without written consent of the Responsible Authority.
5.	Prior to the endorsement of plans, the applicant must provide a Water Sensitive Urban Design Response addressing the Application Requirements of the Water Sensitive Urban Design Policy to the satisfaction of the Responsible Authority.  All proposed treatments included within the Water Sensitive Urban Design Response must also be indicated on the plans.
6.	The project must incorporate the Water Sensitive Urban Design initiatives detailed in the endorsed site plan and/or stormwater management report.
7.	Prior to the endorsement of plans, a landscape plan generally in accordance with the plan of John Patrick Landscape Architects Pty Ltd Job No. 21-461-VCAT01 drawing nos. 01 and 02 both dated 23/08/2021 must be submitted to and approved by the Responsible Authority.  When approved, the landscape plan will be endorsed and will then form part of the permit.  The landscape plan must be drawn to scale with dimensions. The landscape plan must show: 
a.	A survey (including botanical names) of all existing vegetation to be retained and/or removed
b.	Buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary
c.	Details of surface finishes of pathways and driveways
d.	A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant
e.	Landscaping and planting within all open areas of the site
8.	Before the occupation of the development, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.  Landscaping must then be maintained, including in accordance with an irrigation management plan to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
9.	Prior to the endorsement of development plans a Tree Management Plan prepared by a suitably qualified arborist must be submitted to and approved by the Responsible Authority.  When approved, the Tree Management Plan will form part of this permit and all works must be done in accordance with the Tree Management Plan (AS 4970)
The Tree Management Plan must detail measures to protect and ensure the viability of the Ulmus parvifolia (Chinese Elm) on site and the Platanus x acerifolia (London Plane) street tree is located adjacent to the western boundary of the property
Among other things, the Tree Management Plan must include the following information:
a.	Pre-construction (including demolition) – details to include a tree protection zone for tree #2 shown on the approved landscape plan, height barrier around the tree protection zone, amount and type of mulch to be placed above the tree protection zone and method of cutting any roots or branches which extend beyond the tree protection zone. A plan must be submitted detailing any tree protection fencing, where the fencing is clearly identified and dimensioned.
b.	During-construction – details to include watering regime during construction and method of protection of exposed roots.
c.	Post-construction – details to include watering regime and time of final inspection when barrier can be removed and protection works and regime can cease and any permanent tree protection measures including fence alignments/design for tree #2 shown on the approved landscape plan.
10.	Pre-construction works and any root cutting must be inspected and approved by the Responsible Authority's Parks Unit. Removal of protection works and cessation of the Tree Management Plan must be authorised by the Responsible Authority's Parks Unit.
11.	Before the development (including excavation and demolition) starts, a tree protection fence must be erected around the (insert details of the tree/s). Fencing is to be compliant with Section 4 of AS 4970. Signage identifying the need for approval from Council’s Parks Unit for any root cutting (prior to it occurring) must also be displayed on the fence
12.	Prior to the endorsement of plans and prior to any development commencing on the site (including demolition and excavation whether or not a planning permit is required), the owner/ developer must enter into a Deed with the Responsible Authority and provide it with a bank guarantee of $26,356 as security against a failure to protect the health of the the Ulmus parvifolia (Chinese Elm - $5,370) on site and the Platanus x acerifolia (London Plane - $21,085) street tree. The applicant must meet all costs associated with drafting and execution of the Deed, including those incurred by the responsible authority. Once a period of 12 months has lapsed following the completion of all works at the site the Responsible Authority may discharge the bank guarantee upon the written request of the obligor. At that time, the Responsible Authority will inspect the tree(s) and, provided they have not been detrimentally affected, the bank guarantee will be discharged.
13.	The permit holder / developer must advise Council in writing that a Certificate of Occupancy has been issued in respect to the development and that the 12 month establishment period has commenced. 
14.	Prior to a building permit being issued, a report for the legal point of discharge must be obtained from Council and a drainage design for the development must be prepared by a suitably qualified Engineer in accordance with all ‘recommendations’  and requirements contained in that report.  All drainage must be by means of a gravity based system with the exception of runoff from any basement ramp and agricultural drains which may be pumped. The relevant building surveyor must check and approve the drainage design and ensure that protection of the building is provided from a 1 in 100 A.R.I. rainfall event as required by the Building Regulations. 
15.	Prior to an ‘Occupancy Permit’ being issued, a suitably qualified Engineer must carry out a detailed inspection of the completed stormwater drainage system and associated works including all water storage tanks and detention (if applicable) to ensure that all works have been constructed in accordance with the approved design and the relevant planning permit conditions. Certification of the completed drainage from the Engineer must be provided to Council prior to a ‘Statement of Compliance’ being issued for the subdivision.
16.	Prior to an ‘Occupancy Permit’ being issued and prior to a ‘Statement of Compliance’ being issued for the subdivision, levels taken by a Licensed Land Surveyor must be provided on the finished floor levels of the dwellings and the required basement apex to show compliance with Council requirements relating to the ‘Special Building Overlay’.
17.	The existing right-of-way levels must not be altered in any way at the property line (to facilitate the basement ramp). 
18.	The redundant vehicular crossing must be removed and the footpath, nature strip and kerb reinstated at the owner’s cost to the satisfaction of Council.
19.	The applicant must at their cost provide a stormwater detention system to restrict runoff from the development to no greater than the existing runoff based on a 1 in 10 A.R.I. to the satisfaction of Council’s Infrastructure Unit. Alternatively, in lieu of the stand alone detention system, the owner may provide stormwater tanks that are in total 2,500 litres greater than those tanks required to satisfy WSUD requirements for the development. Those tanks must be connected to all toilets. 
20.	The dwellings must be provided with a waterproof masonry fence/wall that extends along Ascot Street and within the Bonview Road frontage as shown on the endorsed plans. This wall must be a minimum of 300mm above the adjacent Ascot Street and Bonview Road back of footpath levels at the property line. The openings within the wall that are to provide pedestrian access must be provided with steps up, that are likewise at least 300mm above the back of the footpath levels before descending to the residences, to prevent the flooding entering the units.
21.	The basement must be provided with an apex that is at least 200mm above the existing edge of the right-of-way to prevent flooding entering the basement from the ROW.
22.	Prior to the occupation of the building, all fixed privacy screens (not adhesive film) designed to limit overlooking accordance with the endorsed plans must be installed to the satisfaction of the Responsible Authority and maintained to the satisfaction of the Responsible Authority thereafter for the life of the building.
23.	All plant and equipment (including air-conditioning units) shall be located or screened so as to minimise visibility from any of the surrounding footpaths and from overhead views and shall be baffled so as to minimise the emission of unreasonable noise to the environment in accordance with Section 48A of the Environment Protection Act 1970 to the satisfaction of the Responsible Authority
24.	Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority’s consent.
25.	All utility services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority by completion of the development.
26.	Prior to occupation of the building or commencement of use, any existing vehicular crossing made redundant by the building and works hereby permitted must be broken out and re-instated as standard footpath and kerb and channel at the permit holder’s cost to the approval and satisfaction of the Responsible Authority.
27.	Prior to the commencement of the development hereby approved, the permit holder must obtain approval from Council’s Building and Local Laws Department to construct or modify any vehicle crossover/s providing access to the subject site. The issue of a planning permit does not provide approval for vehicular crossovers which are outside of the title boundary.

- End of conditions -