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 387 -403 Malvern Road South Yarra Pty Ltd v Stonnington CC (Corrected) [2017] VCAT 1137 (3 August 2017)

Last Updated: 5 July 2018

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

APPLICANT	387 -403 Malvern Road South Yarra Pty Ltd
RESPONSIBLE AUTHORITY	Stonnington City Council
REFERRAL AUTHORITY	VicRoads
RESPONDENTS	M & J Bromby and others
SUBJECT LAND	387 -403 Malvern Road, South Yarra
WHERE HELD	Melbourne
BEFORE	Bill Sibonis, Presiding Member Cindy Wilson, Member
HEARING TYPE	Hearing
DATES OF HEARING	26, 27, 28 & 29 June, 2017
DATE OF ORDER	3 August, 2017
DATE OF CORRECTION	3 July, 2018
CITATION	387 -403 Malvern Road South Yarra Pty Ltd v Stonnington CC (Corrected) [2017] VCAT 1137

ORDER

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by changing the name of the permit applicant to:

 387 -403 Malvern Road South Yarra Pty Ltd

2. Pursuant to section 127 and 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:

3. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by changing the description of the proposal to include a waiver of the loading/unloading requirement.
4. In application P253/2017 the decision of the responsible authority is set aside.
5. In planning permit application 941/16 a permit is granted and directed to be issued for the land at  387 -403 Malvern Road, South Yarra, in accordance with the conditions set out in the Appendix. The permit allows:
   • The construction of a six-storey building (plus basements);
   • the construction and carrying out of works;
   • use of the land for dwellings; and
   • alteration of access to a road in a Road Zone Category 1

in accordance with the endorsed plans.

• A reduction of the car parking requirement for the shops and for dwelling visitors.
• A waiver of the loading/unloading requirement.

APPEARANCES

For  387 -403 Malvern Road South Yarra Pty Ltd	Ms S Brennan SC and Ms C Robertson, of Counsel. They called evidence from: Mr T Biles, Town Planner of Message Consultants Australia Pty Ltd. Mr V Gnanakone, Traffic Engineer of One Mile Grid Pty Ltd. Mr L Richardson, Environmental Engineer and Sustainability Consultant of Sustainable Development Consultants. The evidence of Mr D Flood, Architect of FloodSlicer Pty Ltd (photomontages) was tendered. Mr Flood was not called to give oral evidence.
For Stonnington City Council	Ms T Cincotta, Solicitor of Best Hooper Lawyers. She called evidence from: Mr D Song, Town Planner of Song Bowden Planning Pty Ltd.
For M & J Bromby and others	Mr M Vogl, Town Planner of Sustainable Property. He called evidence from Mr J Holdsworth, Architect and Urban Designer of Planning Collaborative Pty Ltd. He also called lay evidence from Ms Helen Godfrey.

INFORMATION

REASONS[1]

WHAT IS THIS PROCEEDING ABOUT?

1. The Stonnington City Council has refused a planning permit for the construction of a seven-storey building, plus basements, accommodating shops, dwellings and associated car parking. The grounds of refusal are based on matters of built form (height, setbacks, scale and form), amenity impacts, internal amenity, car parking layout and flooding.
2. This is an application to the Tribunal for a review of the Council’s decision.
3. Prior to the hearing, the Applicant prepared and circulated amended plans of the proposal. The changes shown on the amended plans include a reduction in the number of dwellings from 49 to 42; modifications to light courts; reconfiguration of dwelling layouts, re-allocation of car spaces and the removal of a loading bay. The planning permit application was amended at the commencement of the hearing by substituting the amended plans for the application plans.
4. The Council submitted that the amended plans make some improvements, principally in relation to internal amenity, but maintains its opposition to the proposal on the same grounds of refusal, but with a further concern relating to the deletion of the loading bay. The residents similarly oppose the grant of a permit.
5. Based on the submissions, the key issues for determination in this matter may be expressed as follows:
   • Is the proposed height acceptable?
   • Are other aspects of the built form acceptable?
   • Will the development have an unacceptable impact on the adjoining residential properties?
   • Will the development provide an acceptable level of internal amenity?
   • Is adequate car parking provided on the land?
   • Is a loading bay required?
   • Are there traffic issues that warrant refusal of a permit?
6. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered the submissions and the evidence, with regard to the relevant policies and provisions of the Stonnington Planning Scheme (‘the Planning Scheme’), assisted by our inspections, we have determined to set aside the Council’s decision. Our reasons follow.

IS THE PROPOSED HEIGHT ACCEPTABLE?

7. The Council acknowledges the strategic support for higher density residential development and significant change on the review site given its location in an activity centre, within a ‘substantial change area’ under local policy and with proximity to jobs, services and public transport. However, the Council says this strategic support is tempered by the location of the site within a Neighbourhood Activity Centre, the ‘village’ feel of the centre and a policy expectation that the design response must respect the existing and preferred character of the centre.
8. At seven storeys, the Council says the height is at odds with the emerging scale in the Hawksburn Activity Centre (HAC). The Council referred to a number of approved and constructed developments nearby that are four and five-storey forms and say that approval of a seven-storey development on the review site will result in an incongruous built form that will dominate the streetscape and neighbouring properties. The Council says it is relevant to consider the preferred maximum height for this area as contained in the adopted Hawksburn Structure Plan (HSP), and that approval of a development which exceeds that height would undermine the built form aspirations for the centre.
9. Mr Song’s evidence is that the height and scale of the development is not supported by the existing built form character or the strategic aspirations of the Planning Scheme and would have an overbearing and negative presence in the Malvern Road streetscape. He says the building height together with the volume of building across the extensive frontage to Malvern Road will result in a building that dominates the centre but an appropriately designed building of five-to-six storeys could be acceptable for the site as it addresses Malvern Road.
10. The residents submit the proposal is excessive in height and does not respect the preferred character of the area. Mr Holdsworth’s evidence is that the scale and form of the proposal is not complementary to the existing streetscape. Ms Godfrey gave lay evidence that the valued attributes of the HAC derive from a low-rise built form, heritage buildings and the presence of greenery. It is her view that buildings of more than five storeys will result in loss of those attributes and the respected ‘village charm’ of the centre.
11. The applicant says there are a number of factors that support a height of seven storeys on the review site. These include:
    • the strong strategic support in State and local policy for increased housing diversity and density in and around activity centres and within proximity to public transport, services and facilities
    • a shift in State policy whereby the distinction between the built form outcomes sought for different activity centres is no longer included and the previous emphasis on development in Neighbourhood Activity Centres enhancing character has been removed
    • the location of the review site in an area identified in local policy for ‘substantial change’ and where intensified residential development is sought
    • the Council adoption of the HSP reinforces the expectation of significant change in the HAC. Although taller than the preferred five-storey height nomination in the HSP, the proposal is only of incremental additional height and delivers a composition of high architectural quality which will not appear overwhelming in the streetscape
    • the main road location, the size of the site and the opportunity for transition from existing five-storey development in a residential side street
    • effective concealment of the top level due to extensive setbacks and the clear delineation of a three-storey street wall and recessed upper levels that is comparable to those approved elsewhere in the HAC.
12. According to Mr Biles, consideration of what is an acceptable form and height is primarily guided by the existing site context and the way in which this context is likely to evolve. Although acknowledging the HSP as relevant, he says it must be afforded only limited weight given there has been no advancement to incorporate the document into the Planning Scheme by an amendment. Mr Biles says the height and massing of the proposal is an acceptable response to the character of the area and size of the site. Acknowledging the proposal will be a prominent building within the street with a notable presence, he considers that the composition of the proposed building allows its mass to be arranged so that it does not appear overbearing within the streetscape and its presence will not be detrimental to the evolving character of the HAC.
13. There is no dispute that the review site is a candidate for higher density residential development, as acknowledged by the parties. It is common ground that the review site has attributes that make it suitable for higher built form. These include its large size, the existence of vehicle access to the rear, the commercial zoning with no heritage or other built form overlay, the location in an activity centre and on a main road, an absence of interfaces with land in a Neighbourhood Residential zone or heritage overlay and a context that includes a number of recently constructed and approved higher level buildings nearby. Expectation of built form change including increased height is a clear consequence of this context.
14. We acknowledge that State policy does not distinguish built form outcomes sought in Neighbourhood Activity Centres compared with other centres. However, we find considerable emphasis in State and local policy calling for all development to respond to the relevant physical and strategic context.^[2] Our assessment is that these contexts do not support a seven-storey development. We set out our reasons for this position as follows.
15. The current physical context of the site, as viewed from Malvern Road, is varied. There are single and double-storey shops, some buildings with a residential appearance but used commercially, gaps created by vehicle access, some sections of consistent shopfronts, the two-storey police station opposite set behind a landscaped front garden, and some more recent development of between three and five storeys.^[3] This mixed built form, that includes height up to five storeys, creates a local character that is low-scale.
16. We find considerable support in the Planning Scheme for new development to contribute positively to local urban character^[4] and specifically for activity centres to protect and enhance the individual character, identity and amenity of the different activity centres in the city.^[5] We agree with submissions that the HAC has a ‘village feel’ that is, in part, derived from the relatively low scale of buildings. We do not say that means new development must match the older single and two-storey development, but rather that height which exceeds the more recent three to five-storey developments needs to be carefully considered. The height of development should be such that it does not detract from the low-scale village character of the HAC.
17. When viewed from Malvern Road, both from the east and west, we consider the fifth floor (level 6) results in excessive height and visual bulk in the physical context. Although this level is set back from side and front boundaries, compared to the level below, it is still a large element that extends fully into the site. It contributes to a building height and mass that will be dominant in its context.
18. We acknowledge the likelihood of future redevelopment of adjoining sites and that such redevelopment will include greater height. However, given the constraints of those sites, we are not persuaded that this will mitigate the visual dominance of the proposal in oblique views from the east and west.
19. Balconies to dwellings on the fifth floor extend to within 3 metres of the frontage to Malvern Road and align with the front setback of the floor below. Vertical metal blade elements extend to the top of the balustrades of these balconies to a height of over 7 metres from the third floor. We think this design feature unacceptably accentuates the height of the upper levels above the street wall and results in these upper levels appearing overwhelming in the streetscape. Removal of the fifth floor will mean these blade elements will appear more recessive in the street. This will give prominence to the three-level street wall, a matter we address below.
20. The breadth of the site in Malvern Road, with a 37.1 metre frontage, adds to our concern about the proposed height. We find that the extent of the fifth floor across the site together the height it adds, creates an upper level mass that is dominant and overbearing in the street.
21. Our view on the matter of height is supported by local policy that seeks to ensure building height is not significantly higher or lower than the surrounding buildings unless a different preferred height is specified for a particular area in the Planning Scheme or in a structure plan, and that new development in Neighbourhood Activity Centres is consistent with the existing scale and character of the centre. ^[6]
22. We do not have the same concerns about the top floor. This level contains two dwellings and is set back a minimum of 8.5 metres from the front and side boundaries. The confined extent of the footprint combined with the setbacks limits the prominence of this level and we consider it can be retained without adverse impact to the low-scale character of the HAC.
23. In considering the proposal, we have had regard to the HSP. We consider it a relevant document given it has been adopted by the Council.^[7] We agree with the applicant that the weight we place on the HSP must be limited since it has not been independently tested and has not been subject of an amendment to the Planning Scheme. Nevertheless, it details the Council’s current aspirations for the HAC and we note that several local policies in the Planning Scheme refer to consideration of structure plans.^[8]
24. The HSP includes the review site within the ‘western precinct’ where heights of up to five storeys are proposed. This is on the basis that such height will respond to the prevailing character and allow for a balance between change, accommodation of growth and the retention of the unique village quality of the HAC. Without relying on the HSP for determinative direction on acceptable height for the review site, we nevertheless consider it pertinent that the preferred height specified supports our view that the development, as proposed, will detract from the current village feel of the HAC.
25. While we consider that the characteristics and context of the review site allow for a building height greater than the five storeys specified in the HSP, we have concluded that the seven-storey height is excessive. An acceptable outcome can be achieved with the deletion of the fifth floor (level 6). The retained recessive top floor together with the setbacks of the third and fourth floor (levels 4 and 5) and the three-storey street wall will result in an acceptable built form in the streetscape and broader neighbourhood activity centre context. It will not present as a dominant element, but have an overall height that will be in the order of what exists and has been approved within the HAC.

ARE OTHER ASPECTS OF THE BUILT FORM ACCEPTABLE?

Street wall

26. The evidence of all three planning/design experts is that the three-storey street wall is an acceptable response to the streetscape and will ensure that the development integrates acceptably with the prevailing two and three-storey scale at the street edge which currently exists in Malvern Road. We agree the scale and form of the lower three levels is acceptable. However, due to the length of the frontage it has a strong horizontal emphasis that we think sits in contrast with the ‘verticality’ evident in the existing built forms, which is a manifestation of the fine-grain subdivision pattern. The development does not respond acceptably to this streetscape characteristic.
27. This issue can be addressed by a permit condition which requires modification to the south elevation of the ground, first and second floors to introduce more vertical emphasis. As suggested at the hearing, the introduction of vertical blades, such as occurs at the upper levels, could be part of a design solution.

Side elevations

28. There was some criticism of the appearance of the side walls on the approach along Malvern Road from east and west. Their visibility is a consequence of the existence of lower buildings on the adjoining lots – a circumstance which can be expected to change as the vision for the HAC is progressively realised and taller forms emerge. The elevations confirm that the walls are proposed to be constructed of textured off-form concrete in a natural finish. Importantly, the setbacks from the boundaries for the light courts and at the upper levels allow for the inclusion of windows and balconies in the side elevations which provide some relief from what would otherwise be blank walls. The overall composition achieves an acceptable presentation within this activity centre context, where boundary walls are common. As further multi-level buildings are constructed, the visibility of the side walls will diminish. In the interim, the design provides sufficient visual interest to ensure that the building presents acceptably in views from the public realm.

Equitable development

29. The design reflects an acknowledgement of the redevelopment opportunities offered by the adjoining sites to the east and west. The building extends to the side boundaries at the lower levels, and incorporates light courts on both sides to provide light and ventilation to centrally located rooms. Notably, the rooms reliant upon these light courts are bedrooms, with all living areas facing either north or south, that is, into the review site itself or with an outlook to Malvern Road respectively. The potential for these living areas to be affected by development on the adjoining sites is therefore diminished.
30. As noted in Mr Biles’ evidence, the construction to the boundary with central light courts creates the opportunity for development on adjoining properties to match this siting. It will allow for development to occur in a manner which minimises the potential for side walls of the proposal to unacceptably affect the amenity of future buildings on the neighbouring sites. The layout also allows the opportunity for the central light courts to be matched on these sites, resulting in the creation of an enlarged space with benefits for both the proposed development and those adjoining. The inclusion of a 4.25 metre eastern setback for the northern portion of the upper levels removes the built form from the common boundary and enhances the opportunity for equitable development on this neighbouring site.

Upper level setbacks

31. The relevant built form guidelines for the western precinct in the HSP state that new development should emphasise the existing dominant street wall character, and that upper levels should be recessed behind the parapet adequately. For non-heritage buildings, as is the case here, the guidelines state:

To avoid an overbearing relationship with the street, upper levels must be set back appropriately. Where no heritage is present, the upper levels should be set back a minimum of 5 metres from a street wall. The setback should also ensure that it occupies no more than one quarter of the vertical angle defined by the whole building in the view from an eye level of 1.7 metres on the opposite side of the street.

32. The proposed upper level setbacks from Malvern Road are a minimum of 3 metres at their closest point, increasing to 5.57 metres. Setbacks of a similar magnitude are provided for the fourth floor (third level) of the completed five-storey development at 441-473 Malvern Road, located to the east of the review site. Our inspection confirmed that the fourth floor of that development is sufficiently recessive to avoid an overbearing relationship with the street. The setbacks allow the street wall to have prominence and provide a scale to the street which sits comfortably in its physical context, having regard to the width of Malvern Road and both the existing and emerging scale of development.
33. We envisage a similar outcome in this case. The variable setbacks of the third and fourth floors, in combination with the design detailing, the form of the street wall, and the further recessed top level will achieve the outcome sought by the HSP, noting we have already found the fifth floor unacceptable. The development will not visually overwhelm the street. The street wall will have the strongest presence, and is of a form and scale which will integrate successfully into the streetscape. The upper levels will read as secondary elements, with the setbacks ensuring that the outcome sought by the HSP is achieved in an acceptable manner.

WILL THE DEVELOPMENT HAVE AN UNACCEPTABLE IMPACT ON THE ADJOINING RESIDENTIAL PROPERTIES?

34. The review site’s interface with the adjoining apartment developments at No. 2 and No. 4 Cromwell Road has given rise to a number of concerns in respect of the impacts on the amenity of dwellings within these neighbouring buildings.
35. The property at No. 4 Cromwell Road is located to the north. The building on that land is set back 6.8 metres from the common boundary with the review site, with this intervening area at ground level being used as secluded private open space. Within this space is established vegetation, positioned proximate to the common boundary, which affords some screening and privacy to occupants of this area. The development is to be set back 1.7 metres from this boundary at the ground floor level, with the wall height being 5.8 metres. Above this the setback, measured to the edge of the balconies, increases to 2.9 metres and 3.2 metres, with the topmost level being set back 5.2 metres from the boundary.
36. Having regard to the depth of the neighbouring open space area, its location to the north of the review site, the screening effect of the vegetation on that land, and the further setbacks to the walls of the development, we consider the siting to be acceptable. We have also had regard to the location within the activity centre and to the commercial zoning of No. 4.
37. The upper levels of No. 4 are further set back to provide a separation from the proposed development of 9.4 metres at the first and second floor levels, and 14.5 metres at the third (top) level of that development. Again, this separation is sufficient to avoid any unreasonable impact on the dwellings within that development.
38. All that said, we retain some concerns regarding the efficacy of the screening measures proposed for the northern edge of the balconies which face No. 4. We have included a condition requiring the screening to meet the requirements of clause 55.04-6 of the Planning Scheme,^[9] to the Council’s satisfaction.
39. The apartment development at No. 2 Cromwell Road contains both east-facing and south-facing dwellings which have an outlook toward the review site. This outlook is from both habitable rooms and open space areas comprising ground level courtyards and upper level balconies.
40. In respect of the south-facing dwellings, there will be a minimum 3.15 metre separation between these dwellings and the ground and first floor level of the development. Due to their location, the open space areas will only partially be affected by the development, as they ‘straddle’ the review site’s western boundary. This means that they will continue to provide occupants with some outlook to the south, toward the land which adjoins the review site to the west. However, living room windows and bedroom windows will face a 5.8 metre high wall that will be positioned 3.15 metres to the south (being a combination of the 1.9 metre setback on the review site and the 1.25 metre setback on the adjoining property). In this intervening space, it is proposed to provide landscaping on the review site. To avoid any unreasonable sense of enclosure for the neighbouring ground floor dwellings, planting within the 1.9 metre setback should be of a limited height in the order of 4.0 – 5.0 metres, and of a deciduous species without dense foliage to allow for daylight access to the windows which face this space. This can be addressed in the landscape plan.
41. For that part of the building above the ground and first floors, setbacks are 4.5 metres to the balconies and a minimum of 5.9 metres to the wall, with these setbacks being measured to the boundary. When combined with the setbacks of the building at No. 2, the separation at the first floor and second floor levels is 5.75 metres to the balconies and 7.15 metres to the walls. A greater separation is achieved at the higher levels, due to the larger setbacks of the neighbouring development. This will allow an acceptable outlook and level of daylight access for the neighbouring dwellings. It is a reasonable outcome in a circumstance where adjoining sites are developed in the form of multi-level buildings and where both sites are zoned Commercial 1 and within an activity centre. That said, there is a concern regarding the overlooking which may result. The plans show the inclusion of 1700 mm high screening to the balcony edges, but no screening to the bedroom windows. Notwithstanding the evidence that occupants of bedrooms commonly take measures to protect their privacy, thus avoid overlooking, we consider that screening should be provided. It has been a longstanding planning principle/requirement that habitable rooms which allow views of existing habitable rooms within 9.0 metres should be treated in a manner that limits these views. This is embodied in clause 55 and in the GHDRD.^[10] The screening should be of a form which enables an outlook from the rooms whilst protecting the privacy of the adjoining dwellings, louvres being one example. We have included a condition requiring screening of these windows.
42. In respect of the east-facing dwellings at No. 2, ground floor Unit G.04 has a bedroom window and part of its courtyard facing an existing 7.6 metre high boundary wall on the review site. The dwelling directly above, Unit 1.04, has a living room window and part of its balcony also facing this wall. The dwellings on the floors above have an outlook over the wall. The dwellings further north presently have an outlook toward No. 4 Cromwell Road and east along McKillop Street.
43. The development will alter this. Units G.04 and 1.04 will face a 5.8 metre high wall, set back 1.0 metre from the common boundary. Planting will be provided within this area, and will be partially visible above the proposed 1.7 metre high acoustic fence. For the upper levels, the building adopts a splayed profile arising from a 2.3 metre setback at the southern end and a 5.1 metre setback at the northern end.
44. Mr Biles considers this design response and the resultant interface conditions to be acceptable. In his opinion Unit G.04 will face a lower boundary wall, with some planting visible, which will create a ‘pleasant courtyard garden’. Under questioning he stated that the proposal will not represent an improvement for this dwelling when compared to existing conditions but will nonetheless be acceptable. He is less concerned about Unit 1.04, given it is elevated and will have a greater separation between it and development on the review site due to the removal of the boundary wall, and the chamfered profile of the upper levels.
45. Having inspected some east-facing dwellings within No. 2, we have not been persuaded that the siting of the development responds acceptably to these dwellings. Put simply, for its scale, size and mass, it is located too close to the common boundary to achieve a reasonable separation. Consequently, it will unacceptably impact on the amenity of the private open space areas and habitable rooms through a substantial built form presence in their outlook. While it may be true that an occupant would need to ‘crane their neck’ to see past the building to the sky, this is not the measure. In order to maintain an acceptable level of amenity, a legible sense of space between the development and these adjoining dwellings should be maintained to avoid an unreasonable sense of enclosure and associated visual bulk impacts.
46. As was raised at the hearing, the chamfered profile of that part of the building which is in the outlook of the east-facing dwellings can be removed to provide a consistent 5.1 metre setback from the common boundary for the levels above ground floor. The separation between the first floor neighbouring habitable room windows and the proposed upper levels will be 9.8 metres. Measured from the edge of the neighbouring balconies, the separation will be 7.5 metres. The modification will have the effect of increasing the depth of the outlook and improving daylight access to the rooms within the dwellings. There would also be some consequential improvements in sunlight access to the open space areas and associated reduced shadow impacts.
47. Mr Richardson undertook modelling of the daylight access to selected dwellings in the apartment development at No. 2 whose daylight access would be affected by the proposal. According to that analysis, three dwellings (Units 1.4, 1.5 and 2.5) currently receive daylight which is in accordance with the standard in the Built Environment Sustainability Scorecard (BESS),^[11] but would not do so if the development is constructed as proposed. A further dwelling (Unit G.05) presently does not comply with the daylight standard, and this would not be improved by the development.
48. Before proceeding to consider the impact, it is important to note that a full analysis of this neighbouring development’s compliance with BESS has not been undertaken, nor is it possible on the information provided. This is important as BESS refers to 80% of the dwellings within a development complying with the daylight standard, not all the dwellings. It may be that Units G.05, 1.4, 1.5 and 2.5 fall within the 20% of the total number of dwellings which do not need to comply with the daylight standard, and that a consequential reduction in daylight would not reduce the development’s compliance with BESS. This is an unknown, so we have proceeded to assess the impact on daylight from the proposed development.
49. The principal change for Unit 1.4 is in respect of the kitchen/food preparation area which is situated at the rear of the living/dining area of this dwelling. The daylight factor will reduce from 1.0+% to between 0.5%-0.7%. With this level of daylight, combined with the task lighting that is commonly used in kitchens, the space will continue to be useable and have an acceptable level of amenity, having regard to its purpose. We make the same observations in relation to the kitchen/living areas of Units G.05, 1.5 and 2.5.
50. The one bedroom which will experience a notable reduction in daylight is in Unit G.04. This room currently experiences a daylight factor of 1.0% for its entire floor area. This will reduce to a daylight factor of between 0.5% to 1.0+% across its floor area. It will therefore continue to comply with the BESS daylight standard.
51. We conclude that the development will not result in an unacceptable loss of daylight to dwellings within the adjoining apartment building at No. 2 Cromwell Road. In reaching our view about the amenity of the adjoining dwellings, we note the deletion of the fifth floor will reduce impacts of visual bulk and daylight loss to a varying extent depending on the location of the affected dwelling.

WILL THE DEVELOPMENT PROVIDE AN ACCEPTABLE LEVEL OF INTERNAL AMENITY?

52. The Council and residents criticised the internal amenity outcomes for a number of the proposed dwellings, raising issues relating to inadequate access to daylight, poor outlook and single aspect south-facing apartments.
53. Apartments 102 and 202 are criticised for inadequate daylight and limited outlook in the event of future development to the east. These apartments are located on the east side of the development and have identical layout, one above the other, on the first and second floors respectively. We acknowledge that future development of the property to the east will impact outlook and daylight these dwellings but consider the design has responded to this potential in an acceptable manner by including the following features:
    • the two dwellings have living rooms and balconies facing north over the review site, ensuring that there will be no loss of that north aspect
    • living rooms have a secondary window facing south to a light court
    • although one bedroom of each dwelling faces a light court and the other the balcony, the inclusion of full length windows to these rooms maximises outlook and light.
54. In finding internal amenity acceptable we have had regard to the evidence of Mr Richardson that the bedrooms of both dwellings and the living room of apartment 202 will meet the BESS daylight standard under current conditions. While the daylight to the living room of apartment 102 is lower than the standard (achieving a 1% daylight factor over 80% of the room rather than 90%), we consider that variation is acceptable as it is not of such a magnitude that would deprive this dwelling of a reasonable level of amenity.
55. Mr Richardson modelled daylight under two future scenarios for the adjoining sites. In both scenarios the daylight to apartments 102 and 202 would fail to meet the standard for living rooms and at least one bedroom. We acknowledge that potential outcome but consider the overall amenity of the apartments will remain acceptable if future development occurs. We say that given the outlook to the north from living rooms and balconies will remain and the other positive elements in these apartments that add to the overall amenity, including generous room and overall apartment size.
56. The Council criticised daylight access to a number of apartments in the north eastern corner of the development facing the south side of the development at No. 2 Cromwell Road. In Mr Richardson’s evidence the living rooms of apartments 108, 109, 208, 209, 308 and 408 will not be provided with a 1% daylight factor for over 90% of the floor area under current conditions, thus will not comply with the daylight standard. Although all 12 bedrooms associated with these six apartments will have access to acceptable daylight under current conditions, under future development scenarios modelled by Mr Richardson two bedrooms would not meet the 0.5% daylight for 90% of the floor area.
57. Despite the reduced daylight to these six apartments, we consider the overall amenity is acceptable. We say this having regard to the northern orientation of most habitable room windows and all balconies associated with these dwellings and the windows being set back a minimum of 7.1 metres from the five-storey development to the north, a separation that will provide for an outlook from the dwellings.
58. In reaching our view about the acceptability of daylight access to the apartments under current and possible future conditions we have had regard to the total number of apartments that achieve acceptable daylight, noting the standard is applied to a development as a whole rather than individual apartments. The standard seeks at least 80% of apartments to provide a 1% daylight factor for over 90% of floor area of a living room and 0.5% daylight factor for over 90% of the floor area of the bedrooms. We are satisfied that this outcome will be met under current conditions.
59. While under the two future scenarios modelled by Mr Richardson this daylight standard will not be met (with worst case scenario being 71% of apartments meeting standard rather than at least 80%), we consider this potential outcome would be acceptable having regard to the overall standard of internal amenity provided by the development. We agree with the findings in Gurner164 Williams Road Pty Ltd v Stonnington CC^[12] that internal amenity comprises many things and not just daylight access. We find the proposal in this case includes a number of positive elements that combined, result in acceptable internal amenity including:
    • all apartments are generous in size with minimum floor area for one-bedroom dwellings at 62.5 square metres, for two-bedroom dwellings 76.5 square metres; and for three-bedroom dwellings 127 square metres
    • other than two of 8 square metres, balconies are 10 square metres or more with 14 dwellings provided with space exceeding 20 square metres. All balconies are accessible directly from living rooms
    • there is no reliance on borrowed light with all habitable rooms having windows with direct access to daylight and ventilation
    • the internal circulation spaces are generous in dimensions and include external windows that provide natural light
    • the entry at ground level is well defined and the placement of the lift core and stairs centrally on the site limits length of internal corridors
    • storage spaces are provided for each dwelling.
60. Mr Holdsworth’s evidence is that the apartments facing Malvern Road will have poor amenity due to south orientation, roofed and walled balconies with screening and exposure to noise from traffic noise and on-street activity.
61. There are 18 apartments spread across first, second, third and fourth floors that are provided with either a predominantly or exclusively southern aspect. We think this is an acceptable outcome given the site width and orientation, the advantages to future residents of having an outward view to the street and the passive surveillance that contributes to safety in an activity centre. Although the south orientation clearly limits solar access, all of the south-facing dwellings achieve acceptable daylight access under current and possible future scenarios provided in Mr Richardson’s evidence. Balconies for these apartments are typically generous or, in the case of the fourth level, include two balcony spaces. While there will be noise impacts to these dwellings from street activities, we consider the proposed double glazing to all windows and operable metal screens to balconies will allow residents to manage these impacts, noting that a choice to locate in an activity centre brings some expectation of noise and activity.

IS ADEQUATE CAR PARKING PROVIDED ON THE LAND?

62. The development provides a total of 63 car spaces of which 55 over two levels of basement are allocated to residents, five at ground level are allocated to retail tenancies and three at ground level are allocated to residential visitors. There are two vehicle access points proposed, both from the end of McKillop Street.
63. Based on the Planning Scheme, this provision exceeds the requirement for dwelling residents by four spaces and results in a shortfall of five residential visitor spaces and 14 retail spaces.
64. The Council says the oversupply car parking for residents is inappropriate given the policy support for reducing car-based travel and the shortfall for customer and visitor car parking is unacceptable. The Council submits that the car parking for residential visitors and associated with the retail use should be provided on the site in accordance with the empirical assessment provided. In the Council’s submission the basement ramp must be altered to provide protection from potential flooding.
65. The residents raise concerns about inadequate supply of on-site car parking and the impact this will have on the already limited amount of on-street car parking in the locality.
66. Mr Gnanakone’s evidence is that the proposed car parking provision is appropriate whereby all long term car parking demands are provided on-site and the shortfall in supply for residential visitors and customers can be accommodated in the nearby area.
67. In respect of the altered ramp apex sought by the Council to address potential flooding, Mr Gnanakone says this can be accommodated with a re-design but will result in the loss of two car spaces in the basement level.
68. Our findings on built form that result in a deletion of the fifth floor means there is a reduced car parking requirement. Based on the loss of the five dwellings contained in the fifth floor, the car parking requirement under clause 52.06 will be as follows:
    • dwellings: 44 car spaces (based on 1 car space for each one and two-bedroom dwelling and 2 car spaces for each three-bedroom dwelling)
    • residential visitors: 7 car spaces (based on 1 car space for every 5 dwellings) ^[13]
    • shop: 19 car spaces (based on 4 car spaces to each 100 square metres of leasable floor area).
69. The provision of one car space for each one and two-bedroom dwelling and two car spaces for each three-bedroom dwelling meets the requirements of the Planning Scheme and will cater for the long term parking demands of residents. We agree with the Council that oversupply of resident car parking in this location is not desirable and we do not support provision of more car spaces than the Planning Scheme specifies. We reach this view based on State and local policy to reduce provision of on-site parking for developments close to public transport, to encourage reduced reliance on the private vehicle, to facilitate the use of sustainable transport modes and to reduce the number of private motorised trips by concentrating activities in highly accessible activity centres.^[14]
70. We are satisfied that in this location where there is good access to public transport, car parking demand for residential visitors should be assessed on an empirical basis. We consider the rate of 0.12 visitor spaces per apartment is an appropriate demand peak rather than 0.1 rate adopted by Mr Gnanakone. We say this having regard to this rate being applicable in one of the surveys^[15] referred to in Mr Gnanakone’s evidence, the reliance on that rate in the traffic report that accompanied the permit application^[16] and the acceptance of the rate by the Council’s traffic engineer.^[17]
71. Based on the revised number of dwellings and the rate of 0.12 spaces per apartment, the development is likely to generate a peak demand for four visitor car spaces. We consider that the visitor spaces should be provided on-site. We base this conclusion on the results of the parking surveys referred to in Mr Gnanakone’s evidence which indicate high demand for on-street parking in proximity to the site.^[18] It is likely that there will be further re-development in the HAC that will further increase demand for on-street parking.
72. A reduction of the car parking requirement for the shop use is justified in this instance having regard to the following matters:
    • the activity centre location of the site means there is likelihood of multi-purpose trips whereby customers visit the centre for more than one purpose
    • the current relatively high residential densities in and around the activity centre together with likely future residential development means customers will often be residents of the surrounding area who can walk to the shops
    • the site has excellent access to public transport with tram, train and bus services all in close proximity offering convenient access by means other than private vehicle
    • the vehicle access to the car parking via McKillop Street is unlikely to be convenient to customers
    • the current commercial occupancies on the review site generate a demand for on-street car parking for customers
    • nearby on-street parking is generally short term which is suitable for customer needs
    • the on-site spaces provided will cater for the long term staff parking demand generated by the shop use
    • two vehicle crossings will be removed from the Malvern Road frontage providing two additional on-street car spaces.
73. The proposed parking layout provides 63 car spaces over three levels, which is in excess of the amount we consider necessary for the development, as modified by the deletion of the fifth floor. For reasons we set out above we think the total amount of car parking to be provided on-site is 56 car spaces which meets the Planning Scheme standard for residents, the empirical demand for residential visitors and provides for staff parking associated with the shops.
74. We acknowledge the deletion of the fifth floor may result in an altered layout that includes a different number and/or size of dwellings and a different car parking configuration, a matter that will need to be to the satisfaction of the Council. It is our view that the car parking requirement can be addressed by a permit condition that, rather than specify a total number of spaces, requires provision of car parking at specified rates. This would be a requirement to meet the Planning Scheme rate of car parking for dwellings, a rate of 0.12 car spaces per dwelling for residential visitors and 1 car space per 100 square metres of leaseable shop floor area to provide for staff parking.
75. As all users of the car spaces will either be familiar with the access arrangements via McKillop Street (residents and shop staff) or can be advised of how to access the car park (residential visitors), we are not concerned whether the car spaces are in basements or at ground level.
76. Noting the north-east corner of the review site is within the SBO which seeks to ensure development is compatible with flood hazard, we agree with the Council that the potential flooding of the basement must be addressed. We are satisfied this can be addressed by alteration to the apex of the basement ramp. We have included a condition requiring this modification, subject to a proviso that allows an alternative arrangement if acceptable to Council. The consequential loss of two car spaces at the end of the ramp is acceptable having regard to the capacity of the site to provide car parking in accordance with our findings.

IS A LOADING BAY REQUIRED?

77. There is no loading bay proposed for the development. The Council does not support a waiver of the loading bay, submitting that five shops justify its provision. The Council says that a dedicated loading bay would also have the advantage of providing for residential use (such as for furniture deliveries) and waste collection.
78. Mr Gnanakone’s evidence is that given the size of the five retail tenancies proposed, the majority of deliveries would occur via small vans and utility vehicles which can utilise on-street parking in the area and it is impractical and unnecessary to provide a loading bay on-site.
79. The proposal comprises 480 square metres of retail floor space divided into five tenancies, each with their own frontage to Malvern Road. Pursuant to clause 52.07 the proposal generates a requirement for a loading bay of at least 27.4 square metres. A permit may be granted to waive the loading bay requirement if either the land area is insufficient or adequate provision is made for loading and unloading vehicles to the satisfaction of the responsible authority.
80. We consider that the waiver of a dedicated loading/unloading bay is acceptable in this proposal. We agree with Mr Gnanakone that the small size of the retail tenancies means the likely demand for loading and unloading will be met by smaller vehicles which could be accommodated in the on-street car spaces or, if required, informally in the shared ground floor car park accessed off McKillop Street.
81. Use of the street for deliveries is a common outcome in strip shopping centres, including this one, and removal of two existing vehicle crossings to Malvern Road will result in opportunity for two additional spaces on-street. This will increase the shared supply available for loading and parking. The short-term parking restrictions in the immediate vicinity of the review site ensures turnover of spaces and increases opportunity for use by vehicles engaged in loading and unloading. The absence of clearway restrictions adjacent to the frontage of the review site in the morning period, when deliveries may be more common, combined with an expected low frequency of deliveries associated with shops of the size proposed, supports the waiver in this instance.
82. There is no requirement in the Planning Scheme for the provision of a loading bay in association with residential use. Consistent with other apartment developments, removalist vehicles will need to park on the street. The waste collection will be undertaken via a private contractor and we are satisfied that the ground level and basement provides suitable access for this to occur.

ARE THERE TRAFFIC ISSUES THAT WARRANT REFUSAL OF A PERMIT?

83. The residents raise concern about adverse impacts to local streets arising from increased traffic generated by the development. The Council submits that the traffic generation to McKillop Street, although accepted to be low in traffic engineering terms, will result in a significant increase in use of the street.
84. Mr Gnanakone’s evidence is that the anticipated traffic volume generated by the development will be 178 vehicle movements per day, inclusive of 22 vehicle movements during the morning and afternoon peak hours. He says this level of traffic is very low in traffic engineering terms, equates to approximately 1 movement every 3 minutes during the peak hours and is not expected to have an adverse impact on the operation of McKillop Street, the intersection of McKillop Street and Hobsons Street or the surrounding road network.
85. We find that the use of McKillop Street for all vehicle access is appropriate and supported by local policy that, in relation to activity centres, seeks to maintain an active retail frontage, provide a safe pedestrian experience and encourage new vehicle crossovers to the rear of lots or via laneways. ^[19]
86. The additional traffic estimated at 178 vehicles per day added to the existing traffic of 108 vehicles per day^[20] can be accommodated in McKillop Street. This is a two-way local road that terminates at the review site and, on the evidence of Mr Gnanakone, has a traffic capacity for up to 1,000 vehicles per day.
87. We have based our findings on the traffic generation expected from the development as proposed. Given there will be reduced parking as a consequence of our requirement to delete the fifth floor the expected traffic will be less than referred to in this decision and thus acceptable.

CONDITIONS

88. Draft permit conditions were circulated by the Council prior to the hearing and submissions on conditions were made at the hearing. We have generally adopted the conditions subject to changes to reflect our findings. These include:
    • deletion of the fifth floor
    • an increase in the setbacks from the western boundary, opposite the east-facing dwellings at No. 2 Cromwell Road
    • the provision of screening to windows and balconies/terraces
    • the introduction of greater vertical emphasis to the southern elevation of the lower three levels (the street wall)
    • alterations to the basement ramp and car parking.

CONCLUSION

89. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

APPENDIX – PERMIT CONDITIONS

PERMIT APPLICATION NO	941/16
LAND	387 -403 Malvern Road, South Yarra

CONDITIONS

1. Before the development starts, one (1) electronic 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 plans identified as TP01, TP01.1, TP03, TP04, TP05, TP06, TP07, TP08, TP09, TP10, TP11, TP12, TP13, TP14, TP15, TP16, TP17, TP18, TP19, TP20, TP21, TP22, and TP23, Issue for VCAT, 11/05/2017 prepared by CBG Architects but modified to show:
   • (a) the deletion of the fifth floor;
   • (b) consistency between the floor plans and the north elevation in respect of window locations;
   • (c) Dwellings 1.01, 2.01, 3.01 and 4.01 set back a minimum of 5.1 metres from the western boundary (being the common boundary with No. 2 Cromwell Road). This must be achieved by reducing the floor area and must not result in the reduction of setbacks from any other boundary;
   • (d) provision of an apex on the basement ramp at a minimum level of 16.5 metres to the Australia Height Datum (AHD) or other treatment to address potential flooding of basement to the satisfaction of the responsible authority;
   • (e) provision of screening to those north-facing bedroom windows of Dwellings 108, 109, 208, 209, 307, 308, 407, 408 that do not have an outlook to the balcony/terrace of the dwelling. The screening must be to a minimum height of 1.7 metres above finished floor level and be comprised of louvres which are suitably angled to limit views into neighbouring secluded private open space and habitable room windows;
   • (f) screening of all habitable room windows and balconies/terraces that allow views of existing habitable room windows and secluded private open space areas within 9.0 metres. The screening must be in accordance with clause 55.04-6 of the Stonnington Planning Scheme;
   • (g) demonstration that bicycle parking spaces are appropriately designed to the satisfaction of the responsible authority;
   • (h) the provision of car parking (rounded down to the nearest whole number) comprising:
     1. For residents: one car space to each one and two-bedroom dwelling and two car spaces for each three-bedroom dwelling;
     2. For residential visitors: 0.12 car space per dwelling;
     3. For shops: 1.0 car space per 100 square metres of leaseable floor area. A minimum of one car space must be allocated to each shop tenancy;
   • (i) design detailing to provide increased vertical emphasis to the south elevation of the ground floor, first floor and second floor;
   • (j) capacity of the storage facilities within the basement;
   • (k) a schedule of proposed external finishes (including roof materials) and colours of all buildings (including colour swatches);
   • (l) the North Point correctly shown on all plans;
   • (m) any changes required by the approved Waste Management Plan (refer to Condition No. 3 of this permit);
   • (n) any changes required by the approved Sustainable Development Plan (refer to Condition No. 4 of this permit);
   • (o) a landscape plan (refer to Condition No. 6 of this permit);
   • (p) any changes required by the approved Water Sensitive Urban Design Response (refer to Condition Nos. 8 & 9 of this permit);

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. Before the plans required by Condition No. 1 of this permit are endorsed, a Waste Management Plan must be submitted to, and approved by, the responsible authority. The Waste Management Plan must be generally in accordance with the Waste Management Plan prepared by RB Waste Consulting Services (dated 16 August 2016) but modified to specify the dimensions and exact locations of the bin stores.

When approved, the Waste Management Plan will be endorsed and will then form part of the Permit. Waste collection from the development must be in accordance with the approved Waste Management Plan, to the satisfaction of the responsible authority.

4. Before the plans required by Condition No. 1 of this permit are endorsed, a Sustainable Management Plan must be submitted to, and approved by, the responsible authority. When approved, the Sustainable Management Plan will be endorsed as part of the planning permit and the development must incorporate the sustainable design initiatives outlined in the approved Sustainable Management Plan to the satisfaction of the responsible authority. The Sustainable Management Plan must include, but is not limited to, the following:
   • (a) demonstration of 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) identification of relevant statutory obligations, strategic or other documented sustainability targets or performance standards;
   • (c) documentation of the means by which the appropriate target or performance is to be achieved;
   • (d) identification of responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring;
   • (e) demonstration that the design elements, technologies and operational practices that comprise the Sustainable Management Plan can be maintained over time;
   • (f) demonstration of how the policy objectives of clause 22.18 are achieved, including details on plans of how each impervious area is treated, and that all toilets and the irrigation system are connected to the water tank;
   • (g) a commitment to the development of a construction phase stormwater pollution reduction strategy.

All works must be undertaken in accordance with the approved Sustainable Management Plan to the satisfaction of the responsible authority. No alterations to the approved Sustainable Management Plan may occur without written consent of the responsible authority.

5. Before the development is occupied, a report from the author of the approved Sustainable Management Plan, or similarly qualified person or company, must be submitted to the responsible authority. The report must be to the satisfaction of the responsible authority and must confirm that all measures specified in the approved Sustainable Management Plan have been implemented in accordance with the approved plan.
6. Before the plans required by Condition No.1 of this permit are endorsed, a landscape plan prepared by a landscape architect or suitably qualified or experienced landscape designer must be submitted to, and approved by the responsible authority. When approved, the landscape plan will be endorsed and form part of the permit. The landscape plan must be drawn to scale with dimensions and one (1) electronic copy must be provided. The landscape plan must be generally in accordance with the landscape plans prepared by Jack Merlo (TP01D, TP02D and TP03D, dated 10 November 2016) but modified to show:
   • (a) the layout of the development to accord with the plans required by Condition 1 of this permit;
   • (b) planting in the northern setback, adjacent to the boundary with No. 2 Cromwell Road, comprising deciduous tree species that do not exceed 4.0-5.0 metres in height at maturity.
7. Before the development is occupied, 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 to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced.
8. Before the plans required by Condition No. 1 of this permit are endorsed, a Water Sensitive Urban Design Response addressing the Application Requirements of the Stormwater Management (Water Sensitive Urban Design) Policy to the satisfaction of the responsible authority, must be submitted to, and approved in writing by, the responsible authority,
9. The project must incorporate the Water Sensitive Urban Design initiatives detailed in the approved Water Sensitive Urban Design Response, to the satisfaction of the responsible authority.
10. 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.
11. Before the development is occupied, fixed privacy devices (not adhesive film) designed to limit overlooking in accordance with standard B22 of clause 55.04-6 of the Stonnington Planning Scheme as specified on the endorsed plans must be installed to the satisfaction of the responsible authority and maintained to the satisfaction of the responsible authority for the life of the building.
12. Before the development is occupied, the walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the responsible authority.
13. All plant and equipment (including air-conditioning units) must be located or screened so as to minimise visibility from the surrounding footpaths and from overhead views and must 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. Ventilation systems must be designed and installed in accordance with the relevant Australian Standards.
14. 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 that report prior to a building permit being issued. The drainage must be constructed in accordance with the Engineer’s design to the satisfaction of the responsible authority.
15. Except with the written consent of the responsible authority, the existing pavement levels in McKillop Street must not be lowered or altered to facilitate the basement ramp to the satisfaction of the responsible authority.
16. The crossover must be constructed to Council’s Standard Vehicle Crossover Guidelines unless otherwise approved by the responsible authority. Separate consent for crossovers is required from Council’s Building and Local Law Unit.

VicRoads condition

17. Prior to the occupation of the dwellings, the redundant crossovers must be removed and wholly reinstated with kerb, channel and footpath to the satisfaction of the responsible authority, and at no cost to the responsible authority or VicRoads.

Expiry

18. This permit will expire if one of the following circumstances applies:
    • (a) The development is not started within two years of the issue date of this permit.
    • (b) The development is not completed, or the use does not start, within four 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 –

^[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

^[2] Including at clauses 15 and 21 and in the Guidelines for Higher Density Residential Development (Department of Sustainability and Environment, 2004) (‘the GHDRD’).

^[3] Including five-storey developments at 441-473 Malvern Road, 352 Malvern Road and 2 Cromwell Road and a three-storey development at 328 Malvern Road.

^[4] At clause 15.01

^[5] At clause 21.06-4.

^[6] At clause 21.06-4.

^[7] Adopted by the Council on 22 August 2016. It is a relevant consideration pursuant to section 60(1A)(g) of the Planning and Environment Act 1987.

^[8] For example clauses 21.05-2 and 21.06-4 variously refer to a ‘structure plan’, an ‘adopted structure plan’ and an ‘approved Structure Plan’

^[9] As referred to in Design Suggestion 2.9.1 of the GHDRD.

^[10] The GHDRD is a policy reference to clause 15.01-2.

^[11] Desired 1% daylight factor for over 90% of floor area of a living room and 0.5% daylight factor for over 90% of the floor area of the bedrooms. The BESS tool is a reference document at clause 22.05-6 of the Planning Scheme. We note this standard is applied to a development as a whole rather than individual apartments and seeks the standard to be met in at least 80% of the apartments.

^[12] [2017] VCAT 622 at paragraph 53.

^[13] Clause 52.06-5 specifies that, if in calculating the number of car parking spaces the result is not a whole number, the required number of car parking spaces is to be rounded down to the nearest whole number.

^[14] At clauses 11.03-2, 18.02-1, 21.08 and 22.05-2.

^[15] Visitor demand surveys of an apartment complex at 380 Toorak Road, South Yarra referred to in Mr Gnanakone’s evidence.

^[16] Traffic Report  387 -403 Malvern Road, South Yarra prepared by Chris Maragos & Associates.

^[17] In referral comments from the Council’s Senior Traffic Engineer dated 3 November 2016.

^[18] Surveys showed minimum availability of 19 vacant car spaces out of 294 spaces at 1.00 pm on Friday 5 May 2017 and 37 vacant spaces out of 312 spaces at 1.00 pm on Saturday 6 May 2017.

^[19] At clause 21.06-4.

^[20] The 7 day average of volume of traffic currently using McKillop Street, based on the traffic counts undertaken for a week beginning 4 May 2017, as referred to in Mr Gnanakone’s evidence