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348- 354  Hawthorn Road Pty Ltd v Glen Eira CC [2020] VCAT 1211 (5 November 2020)

Last Updated: 6 November 2020

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

PLANNING AND ENVIRONMENT DIVISION

APPLICANT	348- 354  Hawthorn Road Pty Ltd
RESPONSIBLE AUTHORITY	Glen Eira City Council
RESPONDENTS	Julian Donlen & Others
REFERRAL AUTHORITY	Head- Transport for Victoria
SUBJECT LAND	348- 354  Hawthorn Road CAULFIELD SOUTH VIC 3162
WHERE HELD	Melbourne
BEFORE	Alison Glynn, Presiding Member Ann Keddie, Member
HEARING TYPE	Hearing
DATE OF HEARING	28, 29 and 30 September 2020
DATE OF ORDER	5 November 2020
CITATION	348- 354  Hawthorn Road Pty Ltd v Glen Eira CC [2020] VCAT 1211

ORDER

Amend permit application

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:

Permit granted

2. In application P506/2020 the decision of the responsible authority is set aside.
3. In planning permit application GE/DP-33180/2019 a permit is granted and directed to be issued for the land at 348- 354  Hawthorn Road, Caulfield South in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:
   • Construction of multi-level building comprising apartments and a supermarket,
   • Use of the land for apartments (frontage greater than 2m) at ground floor,
   • Reduction of the car parking requirement for the supermarket, and
   • Creation and alteration of access to a road in a Road Zone, Category 1.

APPEARANCES

For 348- 354  Hawthorn Road Pty Ltd	Mr Jeremy Gobbo QC on brief from Mr Tyrone Roth, solicitor of Planning Property Partners. They called the following witnesses: Mr Mark Sheppard, urban designer. Mr Andrew Biasci, town planner. Ms Charmaine Dunstan, traffic engineer. Expert evidence of Mr Kim Stapleton comprising photomontages was also circulated by the applicant prior to the hearing.
For Glen Eira City Council	Mr Kristian Cook, town planner.
Julian Donlen & Others	Mr Julian Donlen in person.

INFORMATION

REASONS[1]

WHAT IS THIS PROCEEDING ABOUT AND OUR KEY FINDINGS?

1. In March 2020 Glen Eira City Council (the council) determined to refuse to grant a planning permit for a nine storey building at 348 –  354  Hawthorn Road, Caulfield South. It is a decision that a number of objectors, represented by Mr Donlen (the objectors) support. 348- 354  Hawthorn Road Pty Ltd (the applicant) subsequently has requested the Tribunal review the council decision.
2. Prior to the hearing the applicant filed amended plans that we substituted as the application plans at the commencement of the hearing. These plans amended the proposal to comprise eight storeys over basement car parking. The proposal we therefore consider in this proceeding is for an eight storey building.
3. The council and the objectors remain concerned that the building is too large and dominating for its context in the South Caulfield Activity Centre (SCAC) and its adjoining Cedar Street, residential context. The council submits that the street wall, at 14.5 metres, is too high and inconsistent with the emerging character of the area, adding to its concerns about the overall building height. The objectors remain particularly concerned that the proposal will be overbearing to dwellings in Cedar Street and result in adverse amenity impacts on residential properties, notably at 12 and 16 Cedar Street.
4. The council also questions the provision of internal amenity saying there is insufficiently sized and located communal open space. It also maintains there are other issues to do with access and on-site services, but acknowledges these can be addressed through permit conditions.
5. From our review of submissions and evidence against the relevant provisions of the Glen Eira Planning Scheme we are satisfied that an eight storey building is acceptable and that a permit can grant, subject to a reduction in height as offered by the permit applicant. We also find that the communal open space requires further amendment. With these and other minor changes to on-site amenity provisions that can be addressed through permit conditions, we have determined to set aside the decision of the council and direct that a planning permit be granted in accordance with conditions in Appendix A. Our reasons follow.

PROCEEDURAL ISSUE

6. On 9 October 2020, after the hearing, changes to policy at clause 15 and 16 of the Kingston Planning Scheme were amended through Amendment VC169. We invited parties to comment on these changes and any impact they may have on our assessment by interim order of 12 October 2020. Subsequently the council, review applicant and the objectors provided written submissions about the changes. We have taken into account these additional submissions, to the extent that they convey how the changes to policy may affect the consideration before us.
7. The correspondence of the council also included an update that a permit had been granted for development at 371 Hawthorn Road.

WHAT ARE THE KEY ISSUES?

8. From the submissions and evidence presented, along with our own review of the Glen Eira Planning Scheme provisions, we find the questions to be determined are:
   • Is the height and mass of the building appropriate in this context?
   • Does the proposal result in any unreasonable off-site amenity impacts?
   • Are the on-site amenity and servicing arrangements acceptable?

We address each of these questions below.

IS THE HEIGHT AND MASS OF THE BUILDING APPROPRIATE TO ITS SITE CONTEXT?

9. Strategically the context of the site is similar to that of land at 388 – 394 Hawthorn Road that this same division of the Tribunal considered in 2018 in Bewhite v Glen Eira CC^[2]. In Bewhite, we commented that at a metropolitan level Plan Melbourne has ‘sought to address population growth by focussing development in areas with greatest access to services and transport’. This is the basis of settlement policy at what is now^[3] clauses 11.01-1S, 11.01-1R, 11.03-1S. It also informs design policy at clauses 15.01-1S, 15.01-1R, 15.01-2S and 15.01-5S, as well as housing policy at clauses 16.01-2S and 16.01-2R. We find it particularly relevant that housing policy at clause 16.01-2R has strategy to ‘manage the supply of housing to meet population growth and create a sustainable city’ by developing housing and mixed use developments in a number of locations, including ‘Neighbourhood Activity Centres – especially those with good public transport connections’.
10. At a local level, Housing Diversity Area Policy at clause 22.07 is a tool to implement the housing and residential development objectives and strategies of clause 21.04. These strategies and objectives in turn further ‘the objectives of planning in Victoria to the extent that the State Planning Policy Framework is applicable to the municipality and local issues.’^[4]
11. Clauses 21.04, together with clause 22.07 of the planning scheme identify the site as sitting centrally within a housing diversity area of the SCAC. This is identified in an extract from clause 22.07 in figure 1 below.

Site location

Figure 1 - extract from Map 7- Caulfield South Framework Plan - Clause 22.07 Glen Eira Planning Scheme

12. Policy at clause 22.07-3 applying to the site is to:

Recognise neighbourhood centres as locations which provide significant opportunities for housing diversity, but at a lesser scale and density than developments in urban villages and the Phoenix Precinct.

13. The council submission acknowledges that the local policies do not prescribe particular heights or densities for the neighbourhood centre and that density, mass and scale of residential development needs to be assessed according to the location, physical size, scale and character of the neighbourhood centre. This is consistent with our findings in Bewhite where we commented at paragraph 18 that:
    1. It is not appropriate to adopt a blanket position that a specific maximum height be attained because of controls introduced in other locations^[5].
    2. Little weight should be given to recently approved planning scheme amendments that limit the heights of development in parts of Bentleigh and Carnegie for land outside these centres^[6]. We add to this that the council adopted policies for these centres, and Elsternwick in 2018, are not necessarily relevant to consideration of a site in Caulfield South. This is because the design analysis has been undertaken for the specific considerations of those centres, not the area of our consideration.
    100. There is nothing in the planning scheme to indicate that a uniform height is sought for buildings in this centre^[7], or any other neighbourhood centre.
14. Since our decision of Bewhite in 2018 the council has adopted the Glen Eira City Plan in February 2020. This sets a broad framework for planning of activity centres and nominates a preferred building height across the SCAC of five storeys. The plan does not identify how this height was derived or its relevance to the specific circumstances of the SCAC. Rather it appears to be drawn from a hierarchy of activity centres across the municipality, with the SCAC sitting in a ‘substantial change 3 area’ along with a number of other neighbourhood activity centres.
15. The council acknowledged in its submission that it is only in the very early stages of developing a structure plan for the SCAC and consequentially it does not place any weight on the City Plan for the purposes of the proceeding before us. It submits that the City Plan ‘simply provides useful context on Council’s current thinking’ for the SCAC. We accept the City Plan may be the council’s current broad thinking about activity centres in general, but we give it no weight as a tool to assess building height, relative to the urban design tests of the planning scheme as set by both the State and local policy frameworks. In particular we reiterate our findings in Bewhite that clause 22.07 directs us to:
    • Ensure that the density, mass and scale of residential development is appropriate to the location, role and neighbourhood character of the specific area.
    • Ensure that the siting and design of development takes account of its interface with existing residential development on adjoining sites. This includes being respectful of the scale of adjoining development^[8].
16. The comments in Bewhite were also adopted by another division of the Tribunal in 377 Hawthorn Road Pty Ltd v Glen Eira CC^[9], for a development at 371 – 377 Hawthorn Road, Caulfield South. This is diagonally opposite the review site, at the south-east corner of Hawthorn Road and Larch Street. In this decision, the Tribunal affirmed that a ‘first principles’ approach to planning with a contextual analysis of the site is needed to determine if the proposed building height and form is acceptable.^[10]
17. This in turn leads us to ask the same two questions that we set out in Bewhite being:
    1. Is the proposed building an appropriate scale and design in the Hawthorn Road streetscape?
    2. Is the proposed building appropriately resolved at its rear interface?
18. We address these questions below having regard to the Glen Eira Planning Scheme, the current physical context of the site, the proposed design response and also other recent approvals for other development in the nearby area.

What is the physical context of the site?

19. The site has a 45.57 metre frontage to Hawthorn Road and a maximum depth of 47.35m excluding the rear lane that forms part of the title. The site therefore has a total are of 2252 square metres excluding the lane. The land has a slope of 1.5 metres from its north-west to south-east corners. Along the western part of the northern boundary of the site, a lane extends further west to Cedar Street. The existing building on the site is a former theatre/indoor bowls centre with a street wall ranging in height between 11 and 16 metres. The building roof in the central section rises a further metre, before changing to a skillion at the rear of the building. Part of the site forms an open car park area, directly south of the building on the land, as depicted in Figure 2 below.

Review site

371
380

Figure 2 - Nearmap image of the site and surrounds. Image date 7 September 2020. Sites marked 371 and 380 are other key development sites nearby.

20. The site sits approximately 60 metres south of the intersection with Glenhuntly Road, which provides a traditional shopping strip with lower, smaller shopfront sites. In contrast, sites in Hawthorn Road are generally larger and occupied by a range of uses, many light industrial or service businesses, such as motor mechanics and offices. Land directly to the north of the review site is in a heritage overlay, which applies to land in the Glenhuntly Road shopping strip. The building immediately north of the review site, a three-storey modern office building, is acknowledged by all parties as without heritage significance. It can be seen in figure 4 below. Directly south of the site is a two-storey office building and further south of this is a motor repair business in a single storey building.
21. Larch Street runs off Hawthorn Road directly east of the site. The northern corner of Larch Street and Hawthorn Road is occupied by a commercial building with a double storey high façade, used as a car maintenance business. On the southern corner is 371 – 377 Hawthorn Road, the subject of two current proceedings that we discuss further below.
22. Along the north boundary of the review site is a lane at the rear of commercial premises facing Glenhuntly Road. To the west of the site is a single storey senior citizens centre located in a GRZ1. South of this are 12 and 14 Cedar Street which both support two storey dwellings. These have been constructed to in effect ‘turn their backs’ on the review site, with secluded open space areas to their west, facing Cedar Street. Car parking to their rear, directly west of the open car park on the review site, is accessed from the north-south lane. They both have first floor habitable windows facing the review site. South of these modern townhouses are more traditional houses also sitting in GRZ1. One of these, 16 Cedar Street, has a relatively large rear garden.
23. SCAC has an existing building form that ranges in height from one to three storeys, with a few four-storey buildings. These include a site at 365 Hawthorn Road, directly to the north-east of the review site as well as a small site to the south of Olive Street^[11]. The building on the review site has a height of 16 metres, equivalent to five modern storeys. A number of sites in the area are the subject of current approvals or proposals for larger building form.
24. The most relevant of these we find include:
    • 371 – 377 Hawthorn Road. This site is the subject of two proposals. The first is for a seven storey building that was refused by the Tribunal in 377 Hawthorn Road Pty Ltd v Glen Eira CC^[12]. This proceeding is the subject of a Supreme Court review that is still to be heard. A second proposal, also for a seven storey building, refused by the council in September 2020 was set down for a Tribunal review (P1076/2020) in December 2020 with a compulsory conference held on 19 October 2020.

The council submission to our proceeding noted that a key reason for the refusal was that officers considered the setbacks of the tower from the side streets had not achieved the outcomes sought by the Tribunal in the previous decision. As a result of the compulsory conference to P1076/2020 the parties consented to the Tribunal issuing orders to grant a planning permit for the proposal but with one level removed, making it a six-storey building.

• 380 Hawthorn Road. This site has a permit, resulting from a compulsory conference held by the Tribunal in August 2020. This permit allows a five-storey building with a street wall height of 13 metres.
• 388-394 Hawthorn Road, where there is a new proposal for a seven-storey building, following the Bewhite decision for this site. This is also the subject of a Tribunal proceeding, heard in the week of 19 October 2020.

25. Each of these sites has its own physical context and interfaces. The site of our review is large and well proportioned, with only one direct residential abuttal across a lane where two dwellings orientate towards Cedar Street, away from the review site. It sits close to the core of the activity centre at the intersection of Glenhuntly and Hawthorn Roads, but does not directly impose on the more sensitive heritage sites of the Glenhuntly Road shopping strip. These attributes provide a site context that we find tips the balance of housing and character policy toward exploiting the development opportunities of the site to provide more housing in Glen Eira.

Is the proposed building an appropriate scale and design in the Hawthorn Road streetscape?

26. The proposal as it presents to Hawthorn Road is an eight-storey building with three levels forming a street wall to Hawthorn Road. It has a metric height that is more akin to a nine storey building due to a high ground floor height, with a street wall that ranges between 14 metres at its northern end and 14.5 metres at its southern end, accommodating the gentle slope across the site. This is illustrated in the photomontages in figures 3 and 4 below
27. The building above the street wall is set back at least four metres to the balcony balustrade line, with the upper levels of the building having a staggered setback of between 5.2 and 7.2 metres from the street edge. The top level retains the four metre setback for the balcony, but sets the building at this upper level at least^[13] 7.55 metres from the street edge.

Figure 3 - Photomontage evidence image of the site from the south-east. Note 371 - 377 Hawthorn Road is visible as the chain wire fence to the right of the image.

Figure 4 - Photomontage image of the proposal on view from the northeast.

28. The council acknowledges that the site is located in C1Z, a purpose of which is to create vibrant mixed use commercial centres and provide for residential uses at densities complementary to the role and scale of the centre, and that the site has a considerable frontage to Hawthorn Road with non-sensitive interfaces to its north and south. The council submits this gives the site both opportunities and challenges, as the site is exposed and development on the land will be prominent. It says that the proposed development will be substantially higher than other proposed and approved developments that are five to seven storeys.
29. The council is particularly concerned that the street wall height at 14.52 metres will be out of keeping with the emerging street wall pattern of 12-13 metres for other approved and proposed developments, and what it says is a generally 10-11 metre high existing street wall pattern. At the hearing the applicant acknowledged council’s concern about the podium height, which is partly derived from an unconventionally high ground floor, the result of a loading bay to the rear of the site that can accommodate trucks which support the proposed supermarket use on the ground floor. The applicant tabled further amended plans, which lowered the height of the ground floor apart from the loading bay area to the rear. This would result in the loss of two dwellings on the first floor, but a lower podium/street wall of 12-12.7 metres and a reduced maximum building height to 27.8 metres.
30. We are not convinced that the dominant street wall in Hawthorn Road is 10.5-11.5 metres as suggested by the council. We share the observations of Mr Sheppard and Mr Biasci that the more traditional 10 -11 shopfront street wall may exist in Glenhuntly Road, but not in Hawthorn Road where there are a variety of street wall interfaces, including existing higher form such as the 11 - 16 metre high street wall of part of the existing building on the review site.
31. The more recent developments, approvals and proposals, however, include a predominance of street walls of 13 metres or lower. In this context we agree that the lower street wall, at 12-12.7 metres is more consistent with an emerging streetscape character in Hawthorn Road. We will impose a condition requiring the proposed change.
32. Importantly the lower street wall reduces the overall height of the building so that it will not be overtly higher than other buildings constructed, approved or proposed in the immediate area. We agree with Mr Biasci and Mr Sheppard’s analysis that the review site offers perhaps the greatest potential for significant change in the centre, due to the location factors set out in paragraph 25.
33. On such a relatively unconstrained site, the opportunity to provide for increased density is to be encouraged. The site’s dimensions and the resulting design response also means that there are generous setbacks, not only to the street edge, but also to its north and south boundaries. Read in the round and coupled with the erosion of the built form on the southwest corner, we consider that the design acceptably addresses the sensitive interface with 12 and 14 Cedar Street. It is not overly dominating. The building will certainly be visible and prominent, but is central to the activity centre on a site where we find such prominence can be accommodated.
34. While the land to the north is in a heritage overlay, the photomontage and our inspection from the north of the site confirms that the proposed building on the review site is unlikely to impact on the Glenhuntly Road streetscape which constitutes its heritage significance. It is sufficiently separated from the Glenhuntly Road streetscape for it to be read as a separate and recessive element behind the shopping strip. In addition, the building to the immediately north of the review site, whilst it is included under the heritage overlay, does not contribute to it.
35. The building will also be clearly visible from Larch Street, but the residential portion of that street sits some distance away and does not face the site. As such we are satisfied that while the building will be seen, it will not be inappropriately visually dominating in its context within the SCAC.
36. The council observed that lowering the street wall exposes more of the upper level. It says that the upper portion of the building is too wide and unrelenting in its street presence, and therefore at least one level should be removed from it.
37. We acknowledge that a lower street wall will expose more of the upper levels, but we are satisfied that the setbacks of these levels to both Hawthorn Road, and the north and south, reduce the built form to one which, at a (revised) height of 27.8 metres, the street can accommodate. We base this on the fact that there are very limited sensitive interfaces to the site and the design of the building to set itself in from all boundaries. To Hawthorn Road the building height results in no direct amenity impacts. Even at the slightly higher, 29.6 metres proposed in the Revision C plans, substituted as the application plans, Mr Sheppard’s evidence is that the height does not cause shadow to the opposite footpath until after 2pm at the equinox.
38. The three-storey podium treatment above the ground floor is irregularly modulated using ‘V’ shaped columns and metal balustrading. The upper form, in contrast to the podium, has varied setbacks, but appears from the street as largely an additional four storeys with the continuous balcony edge set back around four metres from the street edge. The proposed horizontal treatment of the balconies, set in from both north and south and divided in two by vertical elements, presents as an unfussy and restrained insertion into the Hawthorn Road streetscape, as can be seen in figures 4 and 5.
39. We noted at the hearing, no privacy screening is shown between apartment terrace areas on either the elevations or in the photomontages for the upper levels facing Hawthorn Road. We are satisfied the streetscape appearance can remain restrained with the addition of privacy screens if this screening between apartments is visually discreet. Privacy screens will add vertical elements to the otherwise horizontal form but provided they are raked back from the balustrade so that they are viewed as being a subservient element in the design and not simply an add-on, we are satisfied proposed upper form is acceptable.
40. These screens should ideally be set back from the frontage and comprise opaque glazing of a complementary tint or other minimal treatment to reduce their impact on the presentation of the upper levels. We find that the timber screens suggested at the hearing would be too heavy and disrupt the simple linear horizontality of the design.
41. Overall, we consider that the clean lines of the design and contrasting materials proposed for the upper storeys reduce the dominance of the upper form, as sought by the planning scheme.

Ground floor interface

42. Mr Sheppard says that the articulation of the ground floor façade is insufficient. He suggested that extending the vertical elements used on the upper levels of the podium would enhance the street interface. The applicant agrees with this suggestion and submitted a drawing to the hearing showing how this might be done. We agree that the proposed amendments add visual interest at ground level.
43. The applicant proposes that the canopy at this level might extend across the building in a consistent alignment along Hawthorn Road, but we agree with Mr Sheppard’s evidence that the canopy should remain as proposed in the substituted plans, staggered with the fall of the land so that it provides better weather protection to pedestrians in Hawthorn Road.
44. Elevation TP-400 Revision F should be adopted as the basis of plans forming part of a planning permit, with privacy screens to upper levels added to it.
45. The council and the objectors say that the conditions sought by the Department of Transport to amend the crossover may lead to too much of the ground floor frontage being subsumed by crossover and basement entry. Ms Dunstan’s evidence clarified that the conditions of the Department of Transport could be met without any further widening of the proposed basement entry and crossover. While it is often preferable to have basement entry from the rear to maximise pedestrian priority to the main street, we accept that the specific circumstances of this site justify the basement entry from Hawthorn Road as proposed. We note that the site already has access from Hawthorn Road. It will also reduce potential conflict between resident and customer parking and vehicles using the loading dock, accessed from the rear service laneway network.

Is the proposed building appropriately resolved along its rear interface?

46. The council submits the proposal has not sufficiently addressed its interface to the rear. Land to the site’s west, facing Cedar Street is zoned GRZ1. Council acknowledges that much of the western abuttal is to an existing non-sensitive interface, being the senior citizens centre that has a solid brick wall facing the review site.
47. Mr Donlen owns the double storey townhouse at 12 Cedar Street, directly south of the senior citizens centre. He and a number of his neighbours are concerned that the building will have unacceptable visual bulk and will dominate the residential interface.
48. Figure 5 below shows an indicative view of the proposed building from Cedar Street. With the changes offered by the applicant that we have already adopted, the overall form will be 1.7 metres lower than depicted. The existing building on the review site has an effective three-storey brick wall to much of its western side boundary. This is similar in height to the proposed podium level. The upper levels are set back roughly 10-13 metres behind this, with the southwest section closer to 12 Cedar Street having the greater setback.
49. Directly to the west of the laneway, the building will interface to a blank rear wall of the senior citizens centre and the rear interface of 12-14 Cedar Street. The nearest public view of the building will be over 36 metres away in Cedar Street to the edge of the podium and 46 metres to the upper levels. This provides a sufficiently recessive form from a wide street that includes a number of other non-residential buildings. The building mass is broken down into segments, with the lower form on its southwest corner reducing the overall sense of bulk to the lower order street. We consider that in this context it will not be overbearing.

Figure 5 - Photomontage evidence of the proposed building viewed from the west side of Cedar Street. The senior citizen’s single storey building and the two storey townhouses at 12-14 Cedar Street are visible in the foreground.

Impact on residential amenity

50. Given the form and height of the existing building on the site, the setbacks of the proposed upper levels and the existing orientation of the adjoining dwellings directly west of the review site we consider that the overall proposal does not result in any unreasonable visual bulk to nearby dwellings.
51. The council and the objectors also submit that the proposed building will unreasonably shadow solar panels on the roof of Mr Donlen’s house. Mr Donlen has an array of six panels in the eastern section of his roof that will be partly shaded at the equinox^[14].
52. One of the decision guidelines for considering buildings and works in the C1Z to so consider the ‘impact of overshadowing on existing rooftop solar energy systems on dwellings on adjoining lots in a General Residential Zone’. No clear guidance as to what a reasonable impact is exists in the zone. Planning Practice Note 88 provides some criteria including consideration to the existing siting of panels to maximise their solar access and the general location of the panel relative to adjoining sites.
53. The applicant circulated a letter from Mr Talacko^[15] explaining that in a ‘worst case’ scenario and using the substituted plans circulated prior to the hearing, the likely loss of efficiency to the panels is 9.9%. This ‘worst case’ assumes that the panels do not have separate micro inverters so that when one panel losses sunlight, all panels are affected. Mr Donlen acknowledged in his submission and by email he sent during the hearing that his system does have micro inverters. This would reduce the impact on the system, although Mr Donlen’s email reiterates that he considers shadowing of one panel will affect other panels.
54. For the purposes of assessment, we have started with the worst case scenario that up to 9.9% efficiency of the current solar arrays may be lost across the whole year, although we anticipate it would be less based on Mr Talacko’s letter and the modifications to the building form we direct for other reasons. We also note the shadow diagrams show that at the equinox the panels are in full sun by 10am. It is only early morning that is affected. Additional shadow diagrams were also provided by the applicant of the impact of the overall lower building form and changes to communal open space that would affect at least level 7. These reduce the shadow to the panels and therefore the loss in efficiency modelled by Mr Talacko would also likely be less.
55. With these changes and the overall expectations for any development on the review site, within a C1Z, we are satisfied that the impact on the solar panels on 12 Cedar Street is reasonable.
56. The objectors are also concerned that the proposal will unreasonably overshadow secluded private open space to the rear of dwellings at 16 and 18 Cedar Street and the front yard of 12 Cedar Street. Shadow diagrams provided indicate that the shadow to the rear yards of 16 and 18 Cedar Street at the equinox is reasonable and would meet the tests of Clause 55 if they applied. The amended shadow cast by changes offered by the applicant for the overall building height and changes to level 7 further reduce the shadow to the rear gardens of 16 and 18 Cedar Street. The applicant provided shadow diagrams during the hearing which confirm this. Our review of the plans and shadow diagrams is that the front yard is not shaded by the proposal at the equinox.
57. Finally, Mr Donlen says that there is potential overlooking to windows at the first floor of his dwelling. One of these is a bathroom and two are to a rear bedroom. Our review of plans, elevations and cross-sections proposed for the development accords with the evidence of Mr Biasci that relevant, conventional tests for overlooking are easily met for the proposal. We see no need to add more screening, or that this issue would be a basis to refusing the proposal.

DOES THE PROPOSAL RESULT IN ANY UNREASONABLE OFF-SITE AMENITY IMPACTS?

58. In our assessment above of the rear interface of the building we have addressed the direct amenity impacts of the proposal on the adjoining residential properties to the west and southwest.
59. The objectors also questioned whether the proposal will result in unreasonable additional traffic in the area and whether sufficient on-site car parking is provided to avoid any unreasonable impact from additional on-street parking in the area.
60. The objectors comments are made in context of the usually^[16] busy nature of the area between the retail use of Glenhuntly Road, the tram routes of Hawthorn and Glenhuntly Roads and the primary school to the west of Cedar Street.
61. The proposal provides for more residential parking than is required, with five additional resident spaces than needed. We note that with the loss of dwellings 1.11 and 1.12 at level 1, for reasons we have already discussed, there will be a further over-supply of two spaces, or a total of seven. We are not opposed to this oversupply but nor do we see the proposal relies on it, given the planning scheme only requires resident parking, not visitor parking. This is logical in this area where there is good access to public transport and local services, including a supermarket proposed in the building itself.
62. The supermarket has 70 car parking spaces on-site which requires a planning permit for the reduction of eight spaces from the standard requirement of clause 52.06 that sees a need for 78 spaces for its floor area. The council is not opposed to a reduction in parking for the supermarket and we do not see that the reduction will lead to additional on-street parking issues.
63. Ms Dunstan’s evidence demonstrates that many supermarkets operate effectively with a similar rate of parking to that proposed, or less. The supermarket is relatively small and therefore likely to service a local catchment, with more patrons able to access the supermarket by alterative means and making more regular, smaller purchases that can be carried by a pedestrian or cyclist. Even if patrons or residential visitors do park in the street, we consider they are unlikely to significantly impact residential or school parking in Cedar Street. This is primarily because the only pedestrian entry to the building is from Hawthorn Road.
64. We agree with the council and the objectors that providing for bicycle parking in front of the supermarket is important to encourage alternative modes of transport. There was some discussion at the hearing about the preference for bicycle hoops in the footpath in front of the supermarket, but this will need the consent of the council as owner of this land. If this cannot be achieved then providing spaces within the supermarket entry (out of direct pedestrian entry route) should be provided.
65. The applicant is not opposed to a permit condition that requires three bicycle spaces be provided for supermarket patrons at ground level, but seeks the words ‘a minimum of’ these spaces, be removed from the condition. We have amended the condition to refer to ‘at least’. Complying with this condition means that only three need be provided. However, it enables more to be provided by the applicant if it chooses without it contravening the condition.
66. The objectors are concerned the proposal will lead to unreasonable traffic impacts, both in Hawthorn Road and the rear service lane. The council is satisfied that the traffic access is acceptable, other than for some vehicle turning issues between Cedar Street and the lane that accesses the rear of the site.
67. Having reviewed Ms Dunstan’s traffic evidence we are satisfied that both the Hawthorn Road and rear lane access arrangements and that any increased traffic demand is acceptable. Any additional traffic will mostly be in Hawthorn Road, where the only access for customers and residents will be placed. The Department of Transport is satisfied with the access arrangements subject to permit conditions to ensure the efficient flow of trams in the area. We reiterate that this is a location where more intensive use is to be encouraged so that there is less dependence on private vehicles to access goods and services. In this context we find that the small additional traffic that may occur in Hawthorn Road is acceptable.
68. The rear lane will be used for loading associated with the supermarket and also rubbish collection. The lane then turns and runs along the north of the site, west to Cedar Street and is already used for similar purposes by shops facing Glenhuntly Road. These shops have rear access to the lane. The council is concerned that trucks entering and exiting the site may encroach on a recently constructed tree outstand in Cedar Street. The objectors are also concerned that trucks may impact on broader traffic circulation in and out of the lane and Cedar Street.
69. Ms Dunstan’s evidence explained that trucks accessing the rear of the site will be managed by a loading bay management plan and that turning in and out of the lane to Cedar Street, and further to Glenhuntly Road can be managed through this plan. The movements are similar to those which already occur with shops that use the lane. This includes a relatively narrow road reserve for trucks that pass cars parked in informal parking spaces to the south of the lane on the senior citizen’s land and to its rear.
70. Mr Donlen commented, on behalf of the objectors, that sometimes cars associated with the senior citizens centre park behind or to the north of the centre for ease of loading with this centre. From our inspection we saw some cars parked in these locations but the arrangement seems somewhat opportunistic rather than formal parking for the centre. Indeed, given we inspected at a time when we expect the centre would be closed due to COVID health restrictions it is not even clear that the parking is associated with the centre. Aerial photos from September and April 2020 also suggest that there is parking occurring around the north and the east of the centre, when its formal, on-site parking at the front of its site is empty.
71. Whether the cars parked on the senior citizen’s land are parked legally or not, Ms Dunstan’s evidence is based on trucks traversing the land that is designated as laneway and having room to manoeuvre around cars parked on this adjoining land. Ms Dunstan acknowledged that trucks exiting the lane to Cedar Street may clip the edge of a kerb to a tree outstand in the road, but that this would not necessarily occur, or impact the tree in the outstand. Ms Dunstan commented that the turning circle of the trucks accessing the site is similar to trucks already using the lane. We observed on our inspection the damage to the kerb as a result of its existing use that she noted.
72. Our inspection confirmed that there are tyre marks on the kerb consistent with vehicles mounting the south edge of the kerb at its southwest corner. There are also cracks visible in the concrete of the kerb. We agree with Ms Dunstan that this is an existing flaw in the road/kerb design which could be rectified through the proposal with a modified kerb outstand installed as part of the works for the project.
73. We are satisfied the trucks exiting and entering the lane will not unduly impose on a disabled parking space directly south of the lane. Again, this is an existing parking arrangement the council has established and accepted with service vehicles already using the lane. The lane and Cedar Street itself are low speed environments in a busy, activity centre environment. Having vehicles occasionally yielding and waiting for others to complete a park or turning manoeuvre is part of such an environment. There is nothing before us to suggest that the additional movements associated with the development will place unreasonable stress on the existing road network.
74. Finally, we note that Mr Donlen is concerned that it will be more difficult for two cars to turn into the garage at the rear of his house, west of the site’s rear lane. Currently an open car park exists on the review site so cars entering or exiting Mr Donlen’s property can take advantage of it using part of it to turn into or out of the lane. Those accessing Mr Donlen’s garage have no legal right to rely on use of private land to do so. Even a single storey wall or fence along the review site boundary, that could be constructed without a planning permit, would restrict access. We find no reason to amend the proposal to retain the current opportunistic arrangement.

ARE THE ON-SITE AMENITY AND SERVICING ARRANGEMENTS ACCEPTABLE?

Orientation of dwellings and size of balconies

75. The council submits that some dwellings do not have balcony spaces that meet standards of clause 58 and that there are too many dwellings with sole south orientation.
76. The substituted plans include sheets to demonstrate how different dwelling templates meet the clause 58 requirements. Some of these templates do not align with the individual circumstances of the dwellings on plans. For example, the clause 58 assessment refers for ‘Type H’ dwellings that are used for dwelling 3.05, 4.05 and 5.05. This Type H dwelling shows a compliant balcony of at least 8sqm with a minimum dimension of two metres. However, dwellings 3.05, 4.05 and 5.05 in the substituted plans have different shaped balconies to the template.
77. Some balconies, such as the balcony to dwelling 3.05 still easily comply with the standard but the balconies to dwellings 4.05 and 5.05, where they have a minimum dimension of at least two metres, appear to be just under the requisite 8sqm. Given these dwellings also face solely south, this is by no means ideal. Dwellings 4.05 and 5.05 are only two out of 70 dwellings. The applicant does not oppose draft permit conditions proposed by the council to require a number of balconies to meet the clause 58 standards, including dwelling 4.05. We will impose these conditions and add dwelling 5.05 to this condition.
78. The upper level dwelling 6.05 is also solely south facing but could have some western orientation to its balcony if what is depicted as a solid wall to its west is reduced to a glazed privacy screen. This is a simple modification that can be addressed by a permit condition we will impose. We would encourage the applicant to investigate whether dwelling 6.05 could also include highlight windows on its west face where it abuts communal open space to improve both its solar access and ventilation.

Provision of communal open space

79. The application plans identify a terrace at the south-west corner of the seventh floor (level 6). This area does not meet either the size or orientation requirements of clause 58.03-2 of the planning scheme. The area is notated on the plans as being 142sqm, but our measurement of the plans is that the area is approximately 129sqm (including the planter area, but not the balustrade). For the application plans that comprise 72 dwellings, 180sqm of space should be provided. With two dwellings lost through changes to level 1, as discussed above, the standard directs that 175sqm should be provided. The council submits that the orientation and size of the space is unacceptable and that it appears that the location is somewhat of an afterthought.
80. We do not assume the space to the southwest is an afterthought. Its location works as part of the overall massing of the building, which is eroded at the southwest corner at the interface with residential properties. We also anticipate that the location may provide views toward Port Phillip Bay to the southwest. However, the space still needs to be usable in both its size and solar access. We are particularly concerned that it is relatively small for the number of dwellings proposed and is located directly south of a two-storey wall, clearly visible in Figure 5 above.
81. The applicant acknowledges that at the winter solstice the area does not meet the solar access test in clause 58.03-3 of the planning scheme to provide at least 50% of the area in sunlight for at least two hours between 9am and 3pm. The applicant tabled plans during the hearing to resolve the solar access issue by removing part of the top floor, so that the wall along the north of the communal open space is staggered and lower where it is directly adjacent to the communal open space. This would reduce the size of dwellings 7.08 and 7.09.
82. The applicant provided diagrams to demonstrate that with the staggered wall arrangement the space receives more than 50% sunlight at the winter solstice between 1pm and 3pm. Our review of these diagrams is that the analysis does not fully align with shadows we would expect to occur from the staggered wall arrangement. Nevertheless, we accept in principle that the reduced extent of the upper level will significantly improve the direct sun to the communal open space.
83. While the revised level 7 plan may lead to better solar access to the space, we remain concerned that the communal space is still well below the minimum area required by the standard. Mr Biasci’s evidence is that the space is sufficient, given that there is public open space to the southeast of the site at Princes Park and that a number of the proposed dwellings have balconies far exceeding the minimum requirements of clause 58.
84. We agree that there are a number of dwellings that have large balconies, but there are also a number of dwellings that have much smaller and less well-proportioned balconies. These include balconies that face south, attached to dwellings that are solely south facing. Having a communal open space that is well proportioned with good solar access will be important for these smaller and south facing dwellings.
85. Removing part of level 7 results in a ‘wedding cake’ staggering of the upper rear façade. This adds to our conclusion that the sixth floor similarly needs to step back^[17]. This will result a communal open space that is a more appropriate size, although we anticipate will still be just under the required area to meet the standard 175sqm^[18].
86. Extrapolating from the shadow diagrams provided by the applicant and our own examination of shadow for the area, we are satisfied that a sufficient area would receive sunlight at the winter solstice. Externally, deleting part of dwelling 6.08 to mirror the proposed deletion of part of dwelling 7.08 also results in maintaining an acceptable visual response to Cedar Street. We therefore will direct that parts of both dwellings 6.08 and 7.08 be reduced in size. This should result in additional space, generally as depicted in figure 6 below.

Figure 6 - Tribunal mark up of TP-107 Rev E, tabled by the applicant during the hearing, to show additional communal open space we will require by permit condition.

Other environmental performance measures

87. The proposal does not clearly demonstrate that at least 40% of dwellings comply with cross-ventilation standards but the council and the permit applicant agreed to draft conditions to address this issue.
88. The council also questioned the impact of noise from the loading bay arrangements to dwellings 1.11 and 1.12. We note that with the changes offered by the applicant to level 1 that we have adopted, these two dwellings are deleted. There are also general, uncontested permit conditions proposed by the council that we have adopted to address general noise impacts.
89. The objectors question why a car share facility is not provided in the basement or nearby the development. Enforcing the applicant to place a private share car scheme space in the basement may be difficult as it raises leasing arrangements that are beyond the scope of the planning permit. Similarly, dedicating a public space on the street is a matter for the council to determine with a share car operator. There is no reason why either such a proposal could not be pursued beyond the scope of the planning permit.
90. The objectors submit there is a lack of solar panels provided to the building. The applicant acknowledged this could be improved and an updated roof plan provided during the hearing shows there is capacity for solar panels on the roof. The objectors also questioned the provision of stormwater, green waste and recycling proposed. All of these matters are linked to a sustainability management plan that will be updated in accordance with the amended plans and the permit conditions in Appendix A. We are satisfied that through these measures appropriate consideration to these issues can be made in accordance with the scope of consideration provided for in the planning scheme.

CONCLUSION

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

APPENDIX A – PERMIT CONDITIONS

PERMIT APPLICATION NO:	GE/DP-33180/2019
LAND:	348- 354  Hawthorn Road, Caulfield South

CONDITIONS:

Amended Plans Required

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The amended plans must be drawn to scale with dimensions and must be generally in accordance with the plans identified as:

Development plans:

• TP-020, TP-024 to TP-028, TP-100 to TP-107, TP-150 to TP-152, TP-400 to TP-403, TP-900, TP-904 to TP-909, all Revision C, dated 12 August 2020 and prepared by Ewert Leaf Architects Pty Ltd.

Material schedule:

• Pages 1 to 4, Revision (C) - Issue for VCAT, dated August 2020 and prepared by Ewert Leaf Architects Pty Ltd.

Landscape plans:

• L-VCAT01 to L-VCAT06, Revision VCAT, dated 24 August 2020 and prepared by John Patrick Landscape Architects Pty Ltd.

But modified to show:

Built form changes:

(a) The overall building lowered by at least 1.7 metres, including the street wall height and ground floor presentation set out in plans TP-101 Rev D dated 28/09/2020, TP-400 Rev F dated 29/09/20.

(b) Apartments 6.08, 6.09, 7.08 and 7.09 modified to fit within an envelope for each level as shown for apartments 7.08 and 7.09 on TP-107 Revision E dated 29/09/2020 (VCAT issue), thereby increasing the area of communal open space at level 6 to have its north side aligning with south side wall of revised apartments 6.08 at the same footprint as apartment 7.08 as shown on TP-107 Revision E.

(c) An amended roof plan to accommodate solar panels with an area no less than that set out in plan TP-020 Rev E dated 28/09/2020.

(d) At least 40% of dwellings provided with cross-ventilation in accordance with Standard D27 (Natural ventilation) of the Scheme;

(e) Details of the screening devices between adjoining balconies to ensure overlooking is limited in accordance with Standard D15 (Internal views) of the Scheme, with the devices integrated into the development. Screens in the levels above the podium should be opaque glazing or similar lightweight material and raked back from the height of the front balustrade.

(f) The private open space areas modified as follows:

1. Apartments 4.01, 5.01 and 6.01 provided with a minimum area of 12m² (useable space);
2. Apartments 4.05 and 5.05 provided with a minimum area of 8m² (useable space);
3. Apartments Type F (4.02, 4.03, 5.02, 5.03, 6.02 and 6.03) to have their useable width dimensioned;
4. The west wing wall to the balcony of Apartment 6.05 reduced to a 1.7 metre high privacy screen.
5. Apartment 3.05 (Type H) updated to reflect that shown on the floor plans and dimensioned; and
6. Locations of cooling or heating units on balconies whilst maintaining compliance with Standard D19 (Private open space) with regards useable space, or if not to be located on balconies notes on the plans confirming this.

(g) An enlarged diagram of the 1700 High privacy screens for the balconies of apartments 1.08 and 1.09, detailing the design, materials and dimensions of the screens demonstrating overlooking is limited in accordance with Standard D14 (Building setback) of the Scheme;

(h) Detailed elevations at a scale of 1:50 and sections at a scale of 1:20 showing the podium level streetscape detailing (including window reveals, door profiles and architectural features) along Hawthorn Road, and to demonstrate all site services are treated in a way that is integral to the design of the building;

(i) An enlarged diagram of the ‘EF10’ Concrete – Dark Grey – Ribbed Profile material, demonstrating the sharp scalloped profile shown on the photomontages prepared by Pointilism and dimensioned;

(j) The timber feature shown on the underside of the balcony and footpath canopy soffits detailed on the elevations and materials schedule.

(k) Details of the design, materials and dimensions of the storage provisions located within the basement;

(l) Externally accessible storage provisions allocated to their respective dwellings;

(m) The roof plan, elevations and sections to show all plant equipment, services and lift/stair overruns, with these provisions integrated into the development;

(n) The location of plant and equipment (including supermarket condenser); and

(o) A physical materials board showing all external façade materials, glazing type and tint, colours and finishes.

Car parking:

(p) The vehicle accessway to the north of the lift core in Basement Level 1 limited to one-way movement in an eastbound direction only;

(q) The columns located in the following areas modified to comply with Clause 52.06-9 of the Scheme:

1. Basement Level 1 – Car spaces 10 and 17; and
2. Basement Level 2 – Car spaces 14, 18 and 22.

(r) The provision of wheel stops for car spaces 43 to 49;

(s) Kerbs provided and dimensioned on the vehicle accessway ramp as per AS2890.1:2004; and

(t) Re-alignment of the kerb of the landscaping area at the entrance to the ROW on Cedar Street to accommodate the movements of loading vehicles as shown on the swept path diagrams in the expert evidence statement prepared by Traffix Group and dated 10 September 2020.

Bicycle parking:

(u) At least three (3) bicycle spaces provided at ground floor level for the use of supermarket customers; and

(v) At least seven (7) bicycle spaces provided at ground floor level or within Basement Level 1 that are accessible to residential visitors.

Department of Transport:

(w) Accessway crossover designed to include a splitter island to separate ingress and egress off Hawthorn Road. If warranted the access must be able to be modified to allow future left-in/left-out access arrangement;

(x) The edges of the crossover angled at 60 degrees to the edge of the road at least for the first 3.0 metres with 3.0 metres radial turnouts; and

(y) The removal of redundant vehicle crossings and reinstatement of the existing kerb and channel.

Communal open space:

(z) Provisions ensuring the space is useable throughout the year and in a range of weather conditions;

(aa) Lighting details ensuring that the lighting does not impact on the amenity of the apartments facing directly onto the communal open space;

(bb) Areas set aside for landscaping.

Landscape plans:

(cc) Amended landscape plans as required by Condition 4.

Management plans:

(dd) Any requirement of the Waste Management Plan (WMP) under Condition 9;

(ee) Any noise attenuation measures or requirement of the acoustic report under Condition 15;

(ff) Any requirement of the Sustainability Management Plan (SMP) under Condition 20;

(gg) Any requirement of the public realm management plan under Condition 24.

2. The layout of the uses and the development as shown on the endorsed plans, must not be altered or modified (unless the Glen Eira Planning Scheme specifies a permit is not required) without the prior written consent of the Responsible Authority.
3. The layout of the supermarket is to retain an active frontage to the street at all times. This includes that windows are to remain clear and the internal layout of the supermarket is to provide activation to the street.

Landscaping

4. Before the development starts, amended landscape plans generally in accordance with those referenced in Condition 1, to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plan will be endorsed and will then form part of the permit. The amended landscape plans must show:

(a) The planting schedule update to reflect the quantity of each plant species to be planted;

(b) The plantings shown on the landscape floor plans referenced back to the planting schedule; and

(c) Details of an automatic irrigation system(s) for all landscaped areas, together with a landscaping management plan which provides details of the following:

1. An analysis of the different irrigation demands for the different planters within the site;
2. Details of the irrigation source(s), supply and connections points;
3. Details of a maintenance program for the irrigation system(s) including flushing, checking systems integrity, monitoring sensors and calibration settings; and
4. Responsibility for the ongoing maintenance of the irrigation system(s) and all landscaping by the owners corporation unless otherwise to the satisfaction of the Responsible Authority.

5. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the landscaping works shown on the endorsed Landscaping Plan must be carried out and completed to the satisfaction of the Responsible Authority.
6. The landscaping shown on the endorsed Landscaping Plan must be maintained to the satisfaction of the Responsible Authority including by:

(a) Implementing and complying with the provisions, recommendations and requirements of the endorsed landscape plan.

(b) Not using the areas set aside on the endorsed landscape plan for landscaping for any other purpose.

(c) Replacing any dead, diseased, dying or damaged plants.

Construction Management

7. Before the development starts, including any demolition and excavation, a Construction Management Plan (CMP) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the CMP will be endorsed and will then form part of the permit. The CMP must show:

(a) Delivery and unloading points and expected frequency;

(b) Truck haulage routes, circulation spaces and queuing lanes. Truck haulage routes must exclude Cedar Street unless agreed to in writing by the Responsible Authority;

(c) Details how traffic and safe pedestrian access will be managed, particularly during the drop-off and pick-up times of the Caulfield Primary School. These must be in the form of a Traffic Management Plan designed by a suitably qualified traffic practitioner;

(d) A liaison officer for contact by owners / residents and the Responsible Authority in the event of relevant queries or problems experienced;

(e) An outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services;

(f) Any requirements outlined within this permit as required by the relevant referral authorities;

(g) Hours for construction activity must only occur within the following hours:

1. 7am to 6pm – Monday to Friday;
2. 7am to 1pm – Saturdays;
3. No construction on Sundays or public holidays;

(h) Measures to control noise, dust, water and sediment laden runoff;

(i) Measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan;

(j) Any construction lighting to be baffled to minimise intrusion on adjoining lots; and

(k) Measures to prevent vehicles blocking the laneways adjoining the property;

8. All construction (including demolition and excavation) must be carried out and complied with in accordance with the approved CMP to the satisfaction of the Responsible Authority and must not be varied except with the written approval of the Responsible Authority.

Waste Management

9. Before the development starts, an amended Waste Management Plan (WMP), generally in accordance with the WMP prepared by Leigh Design Pty Ltd and dated 1 November 2019, to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the WMP will be endorsed and will then form part of the permit. The amended WMP must show:

(a) All changes shown on the plans referenced in Condition 1 of this Permit, including any changes required by Condition 1.

10. The provisions, recommendations and requirements of the endorsed WMP must be implemented and complied with to the satisfaction of the Responsible Authority and must not be varied except with the written approval of the Responsible Authority.

Loading Bay Management

11. Before the developments starts, the approval of the Responsible Authority must be obtained with respect to the modifications required to the existing garden bed located on the northern side of the entrance to the right of way on Cedar Street.
12. Before the buildings are occupied, a Loading Bay Management Plan (LBMP) for the supermarket loading bay to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the LBMP will be endorsed and will then form part of the permit. The LBMP must be drawn to scale and dimensioned. The plan must include:

(a) Operating hours of the loading bay with particular regard to the drop-off and pick-up times of the Caulfield Primary School;

(b) Noise attenuation measures complying with Conditions 15 to 19;

(c) Routes travelled on the local road network by commercial vehicles (to be via Glen Huntly Road and Cedar Street only), without the separate written consent of the responsible authority;

(d) Details of commercial vehicle parking areas while waiting for the loading bay to become available with this not to occur within residential streets;

(e) Details of the supermarket loading bay entry door which must be acoustically rated and designed in accordance with the acoustic report at Condition 15 and which must remain closed during loading and unloading;

(f) Specifications of commercial vehicles ensuring that they do not exceed 12.5m in length;

(g) Commercial vehicles are to enter and exit the supermarket loading bay in a forward direction at all times;

(h) Frequency of commercial deliveries and details of the management of such deliveries, including limiting commercial deliveries/collection by semi-trailers to no more than one in any half hour period and any other measures required by the acoustic report approved under Condition 15;

(i) Maintenance and cleaning of all loading bays;

(j) Loading and unloading may only take place between the following hours:

1. 7.00am - 9pm seven days per week within the supermarket loading bay; and
2. No large trucks (12m or longer) will arrive or depart the site on Cedar Street between 8:15am-9:00am and 3:15pm-4:15pm on school days.

13. The provisions, recommendations and requirements of the endorsed LBMP must be implemented and thereafter complied with at all time to the satisfaction of the Responsible Authority and must not be varied except with the written approval of the Responsible Authority.

Trolley Management

14. Before the supermarket use starts, a Trolley Management Plan (TMP) to the satisfaction of the Responsible Authority detailing measures for the efficient management of shopping trolleys including collection and storage must be submitted to and approved by the Responsible Authority. Once approved, the TMP will be endorsed and will then form part of the permit. The TMP must be implemented and complied with in association with the supermarket use at all times to the satisfaction of the Responsible Authority and must not be varied except with the written approval of the Responsible Authority.

Acoustic report

15. Before the plans in Condition 1 are endorsed, an Acoustic Report prepared by a suitably qualified acoustic engineer and to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the report will be endorsed and will then form part of the permit. The report must:

(a) Prescribe measures (whether acoustic treatment or management measures) necessary to protect nearby dwelling occupants and future residents within the building with a direct interface to commercial tenancies above, next to or below from associated commercial noise sources, including but not limited to loading dock and reversing beepers, supermarket, plant and equipment;

(b) Prescribe measures (whether acoustic treatment or management measures) necessary to address noise from use of the outdoor residential communal areas;

(c) Prescribe acoustic treatment to the mechanical plant equipment and ventilation mechanisms installed or constructed as part of the development.

16. Before the development starts, a Mechanical Services Report must be submitted to the satisfaction of the Responsible Authority. The Mechanical Services Report must provide comment on suitability of supermarket equipment noise control measures set out in the Acoustic Report, including with respect to airflow and ventilation.
17. Before the development starts, a further acoustic report prepared by a suitably qualified acoustic engineer to the satisfaction of the Responsible Authority must be submitted. Once approved, the further acoustic report will be endorsed and will then form part of the permit. The further acoustic report must nominate the specific acoustic design and attenuation to address the supermarket and any other plant and equipment (including the condenser area) and demonstrate that the requirements of Condition 19 can be achieved, to the satisfaction of the Responsible Authority.
18. Within two months of all of the uses commencing, an updated acoustic report prepared by a suitably qualified acoustic engineer and to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The updated acoustic report must demonstrate compliance with Condition 19 and that the required level of noise attenuation has been achieved in accordance with Conditions 15, 16 and 17 of the permit or, if not, what works must be undertaken to achieve the required levels of noise attenuation. Compliance testing must be undertaken with plant equipment operating at practical worst caseloads (assuming operation during hot weather in summer during the evening and night).
19. Noise levels to and from the development must not exceed those required to be met under the State Environment Protection Policy (Control of Noise from Industrial Commerce, Industry and Trade), No. N-1 (SEPP N-1) and the State Environment Protection Policy (Control of Music Noise from Public Premises), No. N-2 (SEPP N-2), or any other equivalent or applicable State or relevant policy and should meet accepted sleep disturbance criteria, EPA Publication 1254 and any other relevant guideline or Australian Standard.

Environmentally Sustainable Design

20. Before the development starts, an amended Sustainability Management Plan (SMP), generally in accordance with the SMP prepared by Sustainable Development Consultants and dated October 2019, to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the SMP will be endorsed and will then form part of the permit. The SMP must address all changes shown on the plans referenced in Condition 1 of this Permit, including any changes required by Condition 1. Any environmentally sustainable design features within the report must be included and shown on the plans.
21. The provisions, recommendations and requirements of the endorsed SMP must be implemented and complied with to the satisfaction of the Responsible Authority and must not be varied except with the written approval of the Responsible Authority.

Car Parking and Bicycle Parking

22. Before the buildings are occupied, a Car Parking and Bicycle Parking Management Plan (CPBPMP) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the CPBPMP will be endorsed and will then form part of the permit. The CPBPMP must be drawn to scale and dimensioned. The plan must include:

(a) The allocation of car spaces to residential use within the development;

(b) The number and location of the car spaces in the basement commercial car park. All these spaces must be available for public use;

(c) Barrier mechanisms and/or paid parking arrangements;

(d) Details of the system to be installed to manage car parking time restrictions and any payment for the car park:

(e) Bicycle parking facilities including end of trip facilities and public access arrangements;

(f) An internal signage plan for the commercial carpark including directional arrows and signage, informative signs indicating location of disabled bays, small parking bays, bicycle parking, exits, restrictions, pay parking system etc;

(g) The security arrangements for occupants of the development;

(h) Details of way finding, cleaning, security of end of trip bicycle facilities; and

(i) Any policing arrangements and/or formal agreements.

23. The provisions, recommendations and requirements of the endorsed Car Parking and Bicycle Parking Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority and must not be varied except with the written approval of the Responsible Authority.

Public Realm Management

24. Public Realm Management Plan (PRMP) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the PRMP will be endorsed and will then form part of the permit. The PRMP must show the proposed urban design treatment in the adjoining public realm areas in Hawthorn Road to ensure the integration of the site with the street and consistency in the urban design treatment for the Caulfield South Neighbourhood Centre. The plan must be developed in consultation with the Council and be to the satisfaction of the Responsible Authority. When approved the plan will be endorsed and form part of the permit. The plan must show:

(a) The repaving of footpaths along the Hawthorn Road frontage;

(b) Any changes needed to the on-street parking and street lighting;

(c) Street trees; and

(d) Any other feature deemed appropriate such as bicycle parking facilities;

To the satisfaction of the Responsible Authority.

25. Before the development is completed, the requirements of the endorsed PRMP must be carried out and completed to the satisfaction of the Responsible Authority.

General Amenity

26. Before the development is completed, all screening shown on the endorsed plans must be erected and thereafter maintained in accordance with the endorsed plans. The screening measures as shown on the endorsed plans are not to be altered or removed without the written consent of the Responsible Authority.

(a) The amenity of the area must not be adversely affected by the uses or development including through the:

(b) transport of materials, goods or commodities to or from the land;

(c) appearance of any building, works, stored goods or materials;

(d) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, wastewater, waste products, grit or oil;

(e) Traffic generated by the use,

(f) or in any other way, to the satisfaction of the Responsible Authority.

27. All security alarms or similar devices installed on the land must be of a silent type.
28. All outdoor lighting must be baffled and/or located to prevent light from the site causing detriment to the locality to the satisfaction of the Responsible Authority.
29. All pipes, fixtures, fittings and vents servicing any building must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
30. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.
31. Before the buildings are occupied, the walls on the boundary of adjoining properties must be cleaned and finished in a manner to the satisfaction of the Responsible Authority. Painted or bagged walls must be finished to a uniform standard and unpainted or unrendered walls must have all excess mortar removed.

Parking/Bicycle

32. The car parking allocation for the approved development must be:

(a) Not less than one (1) car space per one or two bedroom dwelling;

(b) Not less than two (2) car spaces per three (3) or more bedroom dwelling; and

(c) Not less than 70 car spaces to the supermarket use.

33. Before the building is occupied, the areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:

(a) fully constructed;

(b) properly formed to such levels that may be used in accordance with the plans;

(c) surfaced with an all-weather surface or seal coat (as appropriate);

(d) drained and maintained in a continuously usable condition;

(e) line marked to indicate each car space, loading bay and/or access lane;

(f) clearly marked to show the direction of traffic along access lanes and driveways,

all to the satisfaction of the Responsible Authority.

34. Vehicular crossings must be constructed to the road to suit the proposed driveways to the satisfaction of the Responsible Authority and any existing crossing or crossing opening must be removed and replaced with footpath, naturestrip and kerb and channel to the satisfaction of the Responsible Authority.
35. Before the buildings are occupied, all bicycle parking facilities must be installed and thereafter maintained to the satisfaction of the Responsible Authority.

Department of Transport

36. Prior to commencement of the use the crossover and driveway are to be constructed to the satisfaction of the Head, Transport for Victoria and the Responsible Authority and at no cost to the Head, Transport for Victoria.
37. Within 6 months of the development operating, a post development Transport Impact Assessment report must be submitted to and approved by the Head, Transport for Victoria and the Responsible Authority. The Transport Impact Assessment must include the following:

(a) An assessment on of Hawthorn Road which identifies any operational and safety issues that may have arisen as a result of the access arrangement that has been put in place for this development.

(b) Mitigation measures that may be required to address the identified issues on Hawthorn Road.

38. Within 12 months of the development operating, or any such time as agreed with the Head, Transport for Victoria, the mitigation measures outlined in the post development Transport Impact Assessment must be constructed to the satisfaction of and at no cost to the Head, Transport for Victoria and the Responsible Authority.

Expiry

39. This permit will expire if one of the following circumstances applies:

(a) The development is not started within three years of the date of this permit.

(b) The development is not completed within five years of the date of this permit.

(c) The use is not started within five years of the date of this permit.

(d) The use is discontinued for a period of two years.

The Responsible Authority may extend the permit if a request is made in writing in accordance with section 69 of Planning and Environment Act 1987.

- 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] [2018] VCAT 453

^[3] The Planning Policy Framework numbering has been amended since our 2018 decision.

^[4] As directed by clause 23.02 of the planning scheme.

^[5] As set out in paragraph 14 of Centreway Pty Ltd v Glen Eira CC [2018] VCAT 296

^[6] As set out in paragraph 44 of Chocolate Tower Pty Ltd v Glen Eira CC [2017] VCAT 891

^[7] As set out in paragraph 17 of Rosenwald v Glen Eira CC [2015] VCAT 204.

^[8] As set out in paragraph 20 of Bewhite.

^[9] [2019] VCAT 1819.

^[10] At paragraph 34 of 377 Hawthorn Road Pty Ltd v Glen Eira CC.

^[11] At 383 Hawthorn Road.

^[12] [2019] VCAT 1819.

^[13] The façade of the wall to the street of the upper level is straight but increases slightly in setback due to the slight, ‘off’ alignment of the front property boundary.

^[14] These are shown on the aerial photo in Figure 2. There are also 10 panels in a separate, western array that are not shadowed at the equinox.

^[15] An ESD Consultant and environmental engineer.

^[16] We note with the health restrictions in place in Melbourne, our inspection did not reveal what we would expect is the ‘normal’ operation of the area. Ms Dunstan’s traffic and parking surveys were undertaken in mid-June 2020 when movement across the city was greater, although still not at what we expect is ‘normal’ use.

^[17] Resulting in both the top two levels of the building stepping back.

^[18] Our measurement is that the revised space will be approximately 166sqm.