Memart Investments Pty Ltd v Stonnington CC  
[2022] VCAT 738 (8 July 2022)  
Last Updated: 8 July 2022  
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL  
PLANNING AND ENVIRONMENT LIST VCAT REFERENCE NO. P11869/2021  
PERMIT APPLICATION NO. 0578/21  
CATCHWORDS  
Section 79 Planning and Environment Act 1987, Stonnington Planning Scheme,  
Commercial 1 Zone, Design and Development Overlay – Schedule 21, building height,  
visual bulk, neighbourhood character, amenity, overlooking, traffic, reduction in car  
parking.  
APPLICANT Memart Investments Pty Ltd  
RESPONSIBLE AUTHORITY Stonnington City Council  
RESPONDENTS  
John Milne, Sandia Rose & Others  
S.R.D Pty Ltd, Havana Pty Ltd & other  
Angela Castran  
REFERRAL AUTHORITIES  
Ausnet (Electricity)  
Citipower  
Head, Transport for Victoria - Metro South East  
South East Water  
SUBJECT LAND  
531 and 537-541 Malvern Road  
TOORAK VIC 3142  
HEARING TYPE  
Hearing  
DATE OF HEARING 30 and 31 May, 1 and 2 June 2022  
DATE OF ORDER  
CITATION  
8 July 2022  
ORDER  
Permit granted  
1. In application P11869/2021 the decision of the responsible authority is set aside.  
2. In planning permit application 0578/21 a permit is granted and directed to be issued for  
the land at 531 and 537-541 Malvern Road, Toorak in accordance with the endorsed  
plans and the conditions set out in Appendix A. The permit allows:  
◦ Partial demolition and construction of buildings and works associated with a  
commercial development (retail, food and drink premises, and office - as of right  
use) in a Commercial 1 Zone, Design and Development Overlay and Heritage  
Overlay; and  
◦ a reduction in the car parking requirements.  
Alison Glynn  
Lorina Nervegna  
Presiding Member Member  
APPEARANCES  
For Memart Investments Chris Canavan QC with Carly Robertson, barrister. They were  
Pty Ltd  
instructed by Biggers and Paisley Lawyers and called the  
following witnesses:  
• Sophie Jordan, town planner.  
• Anita Brady, heritage expert.  
• Valentine Gnanakone, traffic engineer.  
• Justin Ganly, economist.  
• Amanda Roberts, urban designer.  
Documented photomontage evidence of Christopher Goss was  
also circulated and relied upon at the hearing.  
For Stonnington City  
Council  
Darren Wong, legal advocate. He called the following witness:  
• Russell Fairlie, traffic engineer.  
For referral authorities  
No appearance  
For S.R.D Pty Ltd,  
Havanna Pty Ltd and  
other  
Jason Kane, barrister on direct brief.  
For John Milne and  
others  
Roz Wilson, solicitor and town planner on Days 1 – 3. John  
Klarica, planning consultant on Day 4.  
For Ms Angela Castran  
Tyrone Rath, solicitor of Planning Property Partners, at the  
commencement of Day 1 only.  
INFORMATION  
Description of  
proposal  
Construction of a six storey office building with four levels of car park  
basement below. The works include partial demolition of a building in a  
heritage overlay and construction of basement access from a rear  
laneway.  
Nature of  
proceeding  
Application under section 79 of the Planning and Environment Act  
1987 – to review the failure to grant a permit within the prescribed  
time.  
[1]  
Planning scheme Stonnington Planning Scheme  
Zone and  
overlays  
Commercial 1 Zone (C1Z)  
Design and Development Overlay – Schedule 21 (DDO21)  
Heritage Overlay – Schedule 142 (HO142)- affects only property at 531  
Malvern Road.  
The site abuts a Transport Zone – category 2 (TRZ2)  
Permit  
Buildings and works in C1Z and DDO21.  
requirements  
Demolition and buildings and works in HO142 (at 531 Malvern Road  
only).  
Relevant scheme Clauses 11, 15.01, 17, 21.03, 21.04, 21.06, 22.05, 22.21, 34.01, 43.02, 65  
policies and  
provisions  
and 71.02-3.  
Land description The site has an approximate 34 metre frontage to the north side of  
Malvern Road, comprising a single fronted, single storey, heritage listed  
shop at 531 Malvern Road and a double storey office building at  
537-541 Malvern Road. The existing office building has two levels of  
parking to its rear. Due to slope of the land the existing building has an  
effective three storey building height to its rear.  
East, west and south of the site are other single and double storey  
commercial premises forming part of the Hawksburn Village Activity  
Centre. To the north of the site is laneway access to a number of  
residential and commercial premises with a row of dwellings north of  
this, facing May Road.  
Tribunal  
inspection  
We inspected the site together, unaccompanied after the hearing on 3  
June 2022. This included a view from the rear yard of 22 May Road.  
REASONS[2]  
WHAT IS THIS PROCEEDING ABOUT?  
1. Memart Investments Pty Ltd (the applicant) is seeking a planning permit to construct  
[3]  
a six storey office and retail building at 531 and 537-541 Malvern Road Toorak.  
Stonnington City Council (the council) does not support the proposal saying the  
building is too big and bulky for its setting in the Hawksburn Village Activity Centre. The  
council says that the building should be at least one storey lower by removing the top  
habitable floor, and be further recessed from its rear and east side boundaries. The  
council is also concerned that the proposed rear access will exacerbate local access issues  
associated with the laneway network in the area.  
2. A number of objectors support the council view that a planning permit should not be  
granted for the proposal. They concur that the building is too large, but consider that at  
least one of its central levels should be removed, as well has having greater setbacks to  
the rear and eastern side boundaries. They are also concerned the proposal will lead to  
further commercial traffic in the residential streets to the rear of the site, leading to a  
conclusion that the proposal should be refused. The objectors include the landowner of a  
number of commercial properties in Malvern Road, represented by Mr Kane at the  
hearing. There are also a number of owners of residential properties represented by Ms  
[4]  
Wilson . Where relevant we refer to these parties as ‘the objectors’ collectively, or by  
their representative’s name.  
3. There is no dispute that a commercial building on this site could provide an economic  
benefit to the centre. The key issue in dispute is whether the height over the preferred 18  
metre height set by Design and Development Overlay – Schedule 21 (DDO21) that  
applies to the site, should be exceeded and whether the building imposes an  
unreasonable amenity, heritage or character impost on the area.  
4. Subject to some minor, and uncontested permit conditions to amend the ground level,  
there is no opposition to the general presentation of the lower four levels of the building  
to Malvern Road. There is also no opposition to the proposed reduction in car parking  
requirements. Indeed the objectors, and the council traffic engineering advice support  
further reduction in car parking as a means to manage local traffic.  
5. For reasons we set out below we find that the building can be made acceptable, provided  
the rear and eastern side setbacks are amended as accepted by the applicant, and also  
that the top, office level is deleted. We therefore have set aside the deemed refusal by the  
council to grant a planning permit subject to permit conditions that enact these changes  
in Appendix A.  
PROCEEDURAL ISSUE  
6. Amendment VC216 was introduced to all planning schemes in Victoria on 10 June 2022.  
This amendment made changes to a number of policies in the planning framework to  
better address environmentally sustainable design (ESD) in planning decisions. By  
order dated 14 June 2022 we invited parties to address any implications arising from the  
gazettal of the amendment as they may relate to this proceeding.  
7. As a result of this order the council responded by email dated 28 June 2022 that it did  
not seek to make any submissions about any impact of the amendment. The objectors  
represented by Mr Kane responded by email dated 28 June 2022 that they considered  
the changes in the amendment were minor and of little (if any) consequence. They noted  
that the draft permit conditions address issues of a sustainability management plans,  
water sensitive urban design and waste management. No other objector parties made  
submission.  
8. The applicant responded with a letter dated 6 July 2022 in which it sets out that it  
acknowledges the increased weighting to ESD policy in the planning scheme as a result  
of the amendment. The letter then sets out the elements of the proposal that already  
address sustainable policy and offers clarification of ESD targets to be met in an existing  
draft permit condition to provide for a sustainable management plan. These include:  
a. 4 Star Green Star Buildings rating (equivalent to the 5 star Green Star Design  
previously nominated in the ESD report forming part of the application);  
b. 5.5. Star NABERS rating;  
c. MUSIC modelling confirming compliance with the best practice performance  
objective outlined in the Urban Stormwater Best Practice Environmental  
Management Guidelines (CSIRO 1999); and  
d. Annual renewable energy yield: 100kWh/m2 Available roof area (Where Available  
roof area = total rooftop area excluding trafficable (e.g. communal terrace) and  
landscaped areas & building services zones.  
9. We have considered these responses in our reasons below.  
WHAT ARE THE KEY ISSUES?  
10. From the submissions and evidence set out by parties we find there are a number of  
questions we need to determine:  
◦ Does the proposed building form an acceptable response to the DDO21 provisions  
applying to the site?  
◦ Is the rear interface to residential properties acceptable?  
◦ Does the eastern interface provide a reasonable equitable development and urban  
design outcome?  
◦ Is the response to the heritage provisions affecting the site acceptable?  
◦ Are there any unreasonable traffic impacts from the proposal?  
◦ Is the provision of car parking acceptable?  
11. We address each of these below after firstly setting out some context to our decision  
making.  
WHAT IS THE PROPOSAL WE ARE ASSESSING?  
12. The proposal, as set out in the substituted application plans, is to establish a six storey  
office building with three levels of basement car parking. The upper level of the parking  
is partly above ground owing to the slope of the land so that at the rear, the building, is  
close to seven storeys (25.94 metres) with the upper basement level protruding  
[5]  
approximately 1.7 – 2.0 metres above natural ground level.  
13. As depicted in figure 1 below, the building as it faces Malvern Road, is set out in a grid  
pattern at its 8.7 metre high wall to the street edge. There are then three levels above, set  
back five metres from the street edge, that sit across the width of 537-541 Malvern Road.  
The width of these levels is broken down into a grid pattern approximately four metres  
wide and four metres high, based on floor to floor levels that vary from 3.7 metres to 4.2  
metres. The westernmost part of the building, not generally visible in the image, is a  
three storey, recessed office form sitting behind the retained shopfront of 531 Malvern  
Road.  
Figure 1 - Photomontage of proposed building as viewed from the south-west of the site.  
14. The presentation of the lower levels comprises two floors (at 4.5 metres and 4.2 metres  
respectively) to the street. While the combined two levels create an 8.7 metre street wall,  
higher than the preferred eight metre street wall set out in DDO21, it is agreed between  
parties that it is acceptable. We too agree that this street wall height and its articulation  
are acceptable.  
15. Parties also agree there is a need to make minor changes to the façade that can be  
addressed by permit condition. These include the provision of a canopy over the  
pedestrian entry to the office foyer and clarification that an ‘in-go’ to the retained  
shopfront is restored, including its pressed metal ceiling.  
16. The key issues about the proposed building form relate to whether the levels above the  
street wall provide an acceptable outcome when tested against the objectives of DDO21  
and heritage policies that apply to the site, and whether there are unreasonable amenity  
and equitable development outcomes arising from the upper building form. It is these  
matters that we explore below.  
IS THE PROPOSED BUILDING SUITABLY RESPONSIVE TO THE DDO21  
OBJECTIVES?  
17. It is agreed between the parties that a key provision of the planning scheme, driving  
building form, is DDO21. This provision was introduced into the planning scheme via  
Amendment C272 in 2021 and was the subject of a detailed panel report in 2020. The  
land at 537-541 Malvern Road was the subject of specific discussion at this hearing. All  
parties made reference to both the provisions and the amendment process that  
established DDO21 in their submissions and evidence to the hearing.  
18. DDO21 has a number of objectives and requirements. As relevant to this site, being east  
of Williams Road, these include:  
◦ To ensure new development east of Williams Road reflects a fine grain when  
viewed from the streetscape.  
◦ To ensure new development responds to the area's heritage character.  
◦ To encourage building design that allows for employment uses on the ground and  
first floor levels of buildings.  
◦ To ensure new development does not cause unreasonable amenity impacts on  
nearby residential land.  
19. A permit is required to construct buildings and works, other than a single dwelling and  
includes a number of requirements. Relevantly these include general qualitative  
requirements that new development east of Williams Road should:  
◦ Be designed to respond to nearby heritage buildings.  
◦ Be designed to contribute to and enhance the scale, materiality, identity and  
character of Hawksburn Village, as described in the Hawksburn Village Structure  
Plan (2020) (the structure plan).  
◦ Be designed to express the fine-grained subdivision pattern in overall building  
design and façade articulation.  
◦ Be designed to minimise overshadowing of any part of the southern footpath along  
Malvern Road, between 10am and 2pm at the equinox (September 22).  
◦ Be designed and spaced to create a visually interesting skyline, streetscape and  
coherent precinct when viewed in short range and long range views including to  
side and rear elevations, particularly adjacent to heritage buildings.  
◦ Be designed to minimise blank side walls that are visible from the surrounding  
streets.  
◦ On large sites, respect the surrounding prevailing subdivision pattern by providing  
separation between buildings and modular building bulk rather than unbroken  
mass.  
◦ Demonstrate a suitable design response to identified character, streetscape  
presentation and residential interfaces if the proposal exceeds discretionary  
parameters in Tables 1, 2 and 3 of the overlay.  
20. Table 1 of the overlay identifies the land at 531 Malvern Road, being the western part of  
the review site, with a mandatory maximum building height of 15 metres. The remainder  
of the land has a ‘preferred’ maximum building height of 18 metres. Map 4 of DDO21  
illustrates the relevant numeric requirements. We have annotated a copy of this map in  
figure 2 below.  
21. We note that the height is listed in numeric terms, while the structure plan refers to  
storeys. As set out in the panel report to Amendment C272, the height measured in  
storeys is based on a formula of two commercial floor levels followed by three, lower  
residential levels. In the structure plan, as presented in modelling considered by the  
panel, this equated to 17 metres for a five storey building, but amended to 18 metres to  
accommodate slightly higher residential levels that can address current apartment  
[6]  
design requirements. There is therefore a correlation between the numeric height set  
out in the planning scheme and the intent of this, as referred to in storeys in the  
structure plan.  
22. We also note that building height includes service equipment, lift overruns and  
structures associated with green roof areas in this proposal because service equipment  
on the roof exceeds two metres in height. Parties all agreed that the overall height of the  
building is therefore over 30 metres to the top of the lift overrun. The applicant offered  
that the roof level could be lowered by reducing the height of the service area and  
removing the green roof elements, so that the height is measured from the top of the  
[7]  
fifth level, which, at its highest we estimate to be just under 26 metres high.  
Figure 2 - Annotated copy of Map 4 of DDO21.  
23. Table 2 of DDO21 sets the street wall height of eight metres for non-heritage properties  
and a building setback of five metres behind this street wall. As already set out, while the  
street wall exceeds eight metres we agree with parties that the exceedance of 0.7 metres  
is minor and enables a fine grain street wall that is responsive to the street pattern. Table  
3 sets out rear interface standards that we address in our discussion of the interface to  
residential properties in May Road in reasons below.  
24. As a starting point we comment that simply because the building at 26 or 30 metres  
high, is roughly 40 - 60% taller than the preferred maximum height of DDO21, this does  
not make, of itself, an unacceptable outcome. We need to test the height against the  
DDO21 provisions and other relevant policy of the planning scheme. This includes  
general urban design policy of clause 15.01 and also net community benefit direction in  
applying policy, as set out in clause 71.02-3 of the planning scheme.  
Is the form, at its proposed height, an acceptable response to the urban design  
objectives of the planning scheme?  
25. Urban design evidence of Ms Roberts, on behalf of the applicant, is that the levels above  
the street wall provide a good urban design outcome by providing a strong, articulated  
middle section to the building and then a recessive top. Ms Robert’s evidence is that the  
building responds to the objectives of DDO21 by:  
◦ minimising overshadowing of the southern footpath of Malvern Road between  
10am and 2pm at the equinox,  
◦ expressing the fine-grained subdivision pattern with the grid pattern of the middle  
three levels of building, and  
◦ demonstrating a suitable design response to identified character.  
26. Firstly, we agree that the building meets the test to minimise shadowing of the southern  
footpath of Malvern Road, with no shadow being cast on the footpath between 10am and  
2pm at the equinox. This is the test to be met in the overlay.  
27. We also agree that the lower and mid-level architecture response responds well to the  
fine grain subdivision pattern of the centre. We note that no party specifically objects to  
th  
the grid pattern of levels 1 to 5 (ground to 4 floor).  
28. Part of the existing character of the centre, particularly east of Williams Road is low,  
single and double storey form. The structure plan and DDO21 anticipate some additional  
height in this area, including taller form at a discretionary height of 18 metres at only  
three sites east of Williams Road. Two of these sites are north of Toorak Road, being the  
review site, and the other being the ‘Woolworths’ site. This Woolworths site is further  
east of the review site at 559-565 Malvern Road. In between these two sites the DDO21  
has a discretionary 15 metres building height. To the west, including the western part of  
the review site at 531 Malvern Road, building is restricted to a mandated height of only  
[8]  
15 metres, at least 10 metres lower than the top of level 5 of the proposed building.  
Heritage facades between Williams Road and (including) 531 Malvern Road, must also  
be retained. A number of these facades are single storey facades that will expose more of  
the side elevation of the proposed building on its western façade.  
29. In discussion of character, there was debate between parties as to how a building, that  
will be the first of the two sites that have a potential for greater height than sites around  
them, can comfortably fit within the centre. There was also some debate as to what  
might be construed to be an identified character for the centre.  
Comparison to an earlier concept plan  
30. In discussion of how the building may be considered acceptable in this preferred  
character context the applicant referred us to comments of the Panel to Amendment  
C272. In its report, the Panel commented on a concept plan for the review site that has  
some similarities to the proposal before us. The panel commented that ‘on first  
appearances, the concept looks to be a generally sensitive and site responsive design’.  
The Panel, then went on to comment that ‘however it would require a proper detailed  
assessment’.  
31. We were provided a copy of the concept provided to the Panel. We do not make a  
detailed comparison between the concept it viewed and the detailed permit application  
before us. This is mostly because, as the Panel noted, it is the application that requires  
detailed assessment, not a broad concept presented at the panel.  
32. We do note, however, that there are a number of distinctions between what the Panel  
viewed and what we are assessing. Firstly, the concept did not include 531 Malvern Road  
and the only detailed elevation is a render from the front of the site that gives a sense of  
side setbacks, although the schematic floorplates do not indicate side setbacks.  
33. The concept appeared to be retaining the floor heights of the existing two levels of office  
and then adding floors above. Overall, the concept included a nominated height of 18.9  
metres to the top of its level 4 (fifth floor) with two levels above adding an additional 7.6  
metres at a recessed level and a very modest plant area. The concept does not appear to  
address any of the site constraints, notably slope. The detailed plans before us have a  
height of 20.3 metres to the top of level 4 (fifth floor) as it faces Malvern Road. Due to  
slope this rises in height as the land slopes away to the north. The one additional  
commercial level above the fifth floor has a height of 4.2 metres, with substantive roof  
plant above.  
Consideration of character  
34. The objectors and the council submit that at the height proposed, the development will  
undermine the ‘village character’ of the centre, contrary to the strategies of the  
Hawksburn Village Structure Plan, as well as the general requirements in DDO21. In  
addressing character, various parties made commentary about this building being one  
that needs to be considered ‘in the round’ given it will be exposed on all sides. Ms  
Robert’s evidence concurred that the building is designed in the round, particularly with  
its use of grid patterning of the lower levels.  
35. We share the views of parties and experts that the building needs to be read ‘in the  
round’ as the DDO21 provisions direct that building on this site will be higher than its  
neighbours, particularly to the mandated height to the heritage sites to the west. The  
physical context of this site emphasises the need for proposed building on this land to be  
sensitive to its interfaces as an exposed building.  
36. While the overlay sets out a discretionary 18 metre height, the same as the Woolworths  
site to the east, the review site remains a somewhat more constrained site than the  
Woolworths site. The review site has heritage buildings to its direct west and residential  
properties directly north of the laneway to the site’s north. The Woolworths site is also  
identified as a ‘strategic opportunity’ site in the structure plan where the review site is  
not.  
37. We agree with Ms Roberts that the strong mid-section of the building with its grid like  
pattern of fins that are set apart approximately four metres create a solid, yet fine grain  
pattern that is complementary to the general rhythm and spacing of the street. To this  
extent, we agree in part with Ms Roberts’ opinion that the building has been designed  
purposefully yet in an understated manner that is responsive to the heritage character of  
the activity centre, particularly east of Williams Road. This includes that we agree that  
the materials palette is appropriate and acceptable for these aspects of the built form  
and is of a high quality and finish.  
38. DDO21 seeks development to respond to nearby heritage buildings and to contribute to  
and enhance the scale, materiality, identity and character of Hawksburn Village, as  
described in the Hawksburn Village Structure Plan (2020). Clause 15.01-1 of the  
planning scheme also directs us to consider, as relevant, the Urban Design Guidelines  
for Victoria (2017) (UDGV). At section 5.1 – Buildings in Activity Centres, the  
guidelines include objective 5.1.2, ‘to ensure the activity centre provides a graduated  
transition between different building scales and uses’. Strategy (a) to implement this  
objective is to ‘provide a transition in scale from larger buildings to adjacent areas of  
smaller scale built form.’  
39. Ms Robert’s evidence is that the proposed uppermost office level is visually recessed and  
utilises a simplified material palette to keep the visual focus on the lower and middle  
components of the building. The upper office level is a 4.2 metres high, contrasting form  
to the lower office levels. We were advised by the applicant that this upper office level  
(level 5) is intended to be a light recessed element with a curtain wall expression, to  
enable its perception in long and short views to be a subordinate element to the  
structure beneath it (i.e. the mid and ground level elements). It uses architectural  
language, being described by some as a ‘glass box’.  
40. We understand the intent of the use of a contrasting architectural language, but in this  
instance, we do not agree that it will lead to a coherent precinct when viewed in short  
range and long range views as sought by the planning scheme for the activity centre. Due  
to the constraints of adjoining properties, notably to the west, combined with this level’s  
positioning and height, it will always remain quite exposed, particularly in longer range  
views.  
41. While Ms Roberts’ evidence is that the mid-section will remain prominent, we are  
concerned that, particularly, in longer range views, the building will read as a whole,  
including the upper level, contrasting form. Ms Roberts’ relied on photomontages  
provided by the applicant that shaded in potential new form to the west. We are not  
convinced that from the broad west and south-west the extent of potential form shaded  
in the photomontage will occur due to the heritage constraints applying to land west of  
the review site.  
42. Our inspection of the site from a number of places along Malvern Road confirmed to us  
that the constraints of the site context, the upper level will be quite exposed and will  
appear as a prominent feature in the precinct, defining and establishing the overall  
height of the building. The building will therefore read as a whole up to this top level that  
is well above what can occur to the west, and preferably will occur to the east. The  
contrast is one we find is not consistent with the objectives of the structure plan to  
provide a village feel.  
43. The written comments of the council’s heritage adviser, based on the plans before us,  
and circulated prior to the hearing, are also that the building is not sufficiently recessed  
to address the lower heritage character of the surrounding area. Ms Brady’s heritage  
evidence is that while the scale of the proposed building is greater than the generally low  
scale character of the heritage precinct, the setbacks on the west side of the site help to  
moderate the difference in height of the proposed development. Her view is also that as  
537-541 Malvern Road is not in the heritage precinct it lessens its sensitivity in heritage  
terms and that as DDO21 anticipates buildings of a greater height than the lower scale  
HO142 precinct there is an expectation that building at 537-541 will be visible over the  
heritage area.  
44. We agree that the proposal has endeavoured to address its western heritage interface by  
incorporating redevelopment of 531 Malvern Road. This is a positive to the development  
as it enables an integrated stepping of the design down to its west. However, we remain  
concerned that the scale differential of the form is still too pronounced, particularly on  
view from the west and south-west, that will remain exposed due to the heritage and  
DDO21 controls applying to the west.  
45. We conclude the building will be a too prominent feature in what is otherwise a  
generally low rise, fine grain activity centre and requires modification to reduce its scale,  
relative to the surrounding lower form and the objectives of the structure plan for a  
village feel to the centre.  
46. As part of its vision statement, this structure plan seeks to ‘encourage infill development  
that retains and enhances the scale, materiality and rhythm of Hawksburn’s  
architectural style’. It is the question of scale that we find most problematic with this  
proposal.  
47. The structure plan sets out that it ‘provides design parameters to ensure the village  
atmosphere is retained. Any future development opportunities must be of a smaller  
scale, adapting existing spaces and retaining the fine grain nature and diversity in built  
[9]  
form.’ The structure plan then refers to avoiding an overbearing relationship with the  
street by setting back upper levels. In text this refers to the five metre minimum setback  
to the street, that is achieved. The corresponding diagram at figure 26 of page 43 of the  
structure plan (as set out in figure 3 below) makes particular reference to the review site,  
noting a fifth level may be acceptable in a recessed form.  
Figure 3 - Cross section of preferred setbacks and heights from page 43 of the structure plan.  
48. From this diagram we appreciate the objectors’ submission that there is some argument  
that the building should be reduced in height by taking out one levels 2, 3 or 4, thereby  
having two levels above the street wall and then the fifth, glazed level.  
49. However, we agree with Ms Roberts’ evidence that the strong grid form of the mid-  
section of the building is important. We find that reducing this to two levels, and then  
retaining the upper 4.2 metre high office level would leave a more incongruous setting to  
the fine grain nature of the street that is complemented through the grid form of the  
third to fifth levels.  
50. We find that the uppermost level (level 5 on plans) should be removed. This lowers the  
overall building height to a scale that retains and enhances the scale of the centre, while  
retaining the architectural integrity of the design. The removal of level 5 will ensure the  
attention to the modularity of the façade expression in the levels below can speak for  
itself and respond to the fine grain of the precinct as sought in the built form controls.  
51. The applicant offered that the roof plant and roof garden as set out in the application  
plans could be lowered, to bring the height of the overall building down. With the  
removal of level 5, we are satisfied the roof top area, being a generally open and more  
recessed area, is acceptable in the form set out in plans. We say this concurring with Ms  
Roberts that this rooftop element is a positive attribute of the proposal and can integrate  
with the building. With level 5 (as notated on plans) removed we are satisfied that the  
rooftop garden and pergola structure can form an appropriate ‘cap’ to the grid form of  
the third to fifth floors (levels 2 to 4) and can be retained at the height and general form  
shown in the amended plans. There may be a need to set back the rear, northern setback  
to address comments of Ms Jordan about the northern setback, as we discuss further  
below.  
52. This roof area and terrace also requires some minor modification to materials as  
recommended by Ms Roberts to ensure it ties in with the stronger mid-section building.  
We accept her comments that the dark colour pergola shown in some plans should be  
amended to a colour that can better blend with the bronze and sandstone of lower levels.  
53. We have addressed this by permit condition, as proposed by the applicant from the  
comments of Ms Roberts, but edited the draft condition to be clearer in its intent to  
amend the existing darker colour scheme to one that better integrates with the lower  
levels. In doing so we also note that the pergola type structure nominated over the lift  
entry to the rooftop garden does not appear to have any nominated material. It is  
indicated as a solid roof on floor plan, but as at least a partly open pergola in cross  
sections and in the photomontages. This is a matter of clarification and design detail that  
can be addressed between the applicant and the council through the endorsement of  
plans in condition 1. These matters of detail, however, affirm to us that the offer of the  
applicant to require the project architect, Bates Smart, to be retained through the  
project, by separate permit condition is important.  
Is there net community benefit to be derived from the building that may  
counter our urban design findings?  
54. The applicant, relying on evidence of Mr Ganly, is that the proposal to provide for five  
levels of office above ground floor office and retail space can add value to the economic  
prosperity of the activity centre and revitalise the centre.  
55. The total office floor space proposed in the substituted application plans is 4784sqm. As  
set out in traffic evidence of Mr Gnanakone, if the sections of the upper levels are  
removed to accord with Ms Jordan’s planning evidence about the rear interface then the  
office area reduces to 4608sqm. The applicant also offered to reduce the floor area on  
the eastern side of the building that we estimate would further reduce the floor area to  
approximately 4,358 sqm, with about a further 250sqm of net leasable area lost to the  
increased eastern side setback.  
56. With these changes agreed to by the applicant, the top office level has a total floor area  
that we estimate to be about 494 sqm, or 120sqm less than the 614sqm set out in in the  
application plans. We derive this from the three metres additional setback on the  
northern side and at least two metres in from its eastern side, as agreed to by the  
applicant in draft conditions.  
57. If level 5 is deleted it therefore results in a further loss of about 500sqm in office floor  
area. We appreciate it would be high quality office floor space with very good outlook  
and natural light. However, we do not see that this benefit to the site presents a net  
community benefit to the centre in a way that outweighs our concerns with the visual  
massing and dominance of the form.  
58. We do not see that the loss of 500sqm, or even 614sqm as set out in the application  
plans, of premium office space is so concerning that it warrants a dismissal of the urban  
design and character impacts. We say this as:  
◦ The structure plan has a strategic direction to promote office development to the  
west of Williams Road, more than the east.  
◦ The structure plan refers to promoting commercial and office space at the first and  
ground floor. It does not give explicit promotion to office use at higher levels.  
◦ As Ms Jordan commented in her oral evidence, from a planning perspective she  
did not give ‘brownie points’ to the proposal because of its use. The consideration  
of built form is separate to the use and there is nothing in the planning scheme to  
provide an uplift or bonus to a particular building that is designed to accommodate  
one use over another.  
◦ There are many other opportunities throughout the centre as a whole and in the  
broader Stonnington and inner eastern metropolitan area to accommodate office  
space. This site, while larger than others nearby and therefore capable of providing  
some additional floor area, is not so rare or unique to the broader Stonnington  
area, that additional height is needed to achieve broader aspirations of the  
planning scheme for increased employment in activity centres.  
IS THE REAR INTERFACE TO RESIDENTIAL PROPERTIES ACCEPTABLE?  
59. To the rear of the site are a number of residential properties. As set out in Ms Jordan’s  
evidence these include a four storey apartment building at 14 May Road, two double  
storey modern townhouses with rear double storey garages and lofts at 16 – 18 May  
Road and then a row of single storey houses from 20 May Road onward.  
60. The council and objectors are concerned the proposal has not adequately stepped itself  
away from these properties and therefore results in visual bulk and represents a poor  
character outcome when tested against the DDO21 provisions.  
61. Ms Jordan’s evidence in part agrees with the objectors and the council in that she also  
considers the building needs to recess itself from the immediately adjoining residential  
properties. She therefore recommends that the top two levels (4 and 5) of the building be  
stepped back from the levels below, applying a 45 degree angle test from a point eight  
metres above the northern side of the rear laneway.  
Figure 4- Figure from Ms Jordan's evidence showing adjoining properties to the rear of the  
review site  
62. With this alteration Ms Jordan’s evidence is that she is satisfied that visual bulk to these  
neighbours is acceptable for its context. This is noting that the building sits to the south  
of the lane, so overshadowing is not an issue, and that the site is in a commercial zone  
with the laneway forming the edge between residential and commercial uses.  
Figure 5 - Section A-A of plans. The left side is the substituted plan set, the right side is an  
image provided through the hearing to show the cut out proposed by Ms Jordan  
63. The recess proposed uses the north side of the lane to draw a 45 degree angle. This leads  
to an additional four metre setback to level 4 and a further three metre setback to level 5.  
It is noted that the diagram to the right misaligns the three metre setback of the upper  
level by placing it to the fin of the lower level, not the façade line. Ms Jordan  
acknowledged that her recommendation is that the fourth level be set back 4.0 metres to  
its façade line, with the fin protruding in front of this. She then expects level 5 to be  
setback three metres from the façade line of level 4.  
64. The objectors and the council maintain that the recess is insufficient to address the  
objectives and requirements of DDO21. The council submits that there is some ‘quid pro  
quo’ for allowing greater built form within the Hawksburn Village by establishing the  
rear setbacks provided for in the DDO21. It says that adopting an eight metre wall and  
then a 45 degree at the site boundary essentially reflects the B17 building envelope under  
clause 55. The two lower, 45 degree lines on the right hand side of figure 5 illustrate the  
requirement sought by DDO21. The higher line, that extends to the north of the laneway  
in the right hand image is the basis on which Ms Jordan has determined her amended  
setbacks.  
65. We do not see that there is anything in the DDO21 schedule that explicitly or implicitly  
indicates that heights in the activity centre are established with a proviso or trade off  
that setbacks to adjoining residential properties go hand in hand. The two requirements  
for height and rear setbacks are provided separately and relate to different objectives of  
DDO21.  
66. DDO21 includes requirements for a rear interface, regardless of building height, that  
include:  
◦ Provide a sensitive design response (including a transition in building scale and  
height) where there is an interface with a residential property or residential area.  
◦ Where required, incorporate built form articulation and/or building separation in  
preference to screening to manage overlooking.  
◦ Provide a design response that considers the outlook, daylight and solar access to  
windows of adjacent properties.  
67. These requirements appear to respond to the objective of DDO21 to ‘ensure new  
development does not cause unreasonable amenity impacts on nearby residential land.’  
The requirements somewhat correlate with those provided in clause 55.04 if it applied.  
The requirements, however, apply to all sites of the activity centre, both east and west of  
Williams Road and north and south of Malvern Road. DDO21 does not give any specific  
guidance to consider if the building is to the north or south of a site. The numeric  
requirements are linked to a performance based requirement that a proposal must  
demonstrate a suitable design response to identified character, streetscape presentation  
and residential interface if it exceeds the discretionary parameters of the table.  
68. In this instance the numeric parameter that fails is the area of building that sits above  
the 45 degree angle. We accept that the wording of DDO21 is that this measurement is to  
be taken from above a maximum rear wall of eight metres, not the other side of the lane.  
Simply not meeting the numeric standard, however, is not the test. In this instance it is  
relevant to consider the general amenity and character considerations of the structure  
plan and clause 65 of the planning scheme.  
69. In the proposal before us the building will sit to the south of the adjoining residential  
properties. These are properties that already have commercial interface and nearby  
taller forms, such as the apartment building at 14 May Road. The building does not  
impact on shadow to these properties.  
70. With the removal of level 5 and a reduction in the width of the building with a greater  
[10]  
eastern setback,  
the extent of building visible from these adjoining rear yards will  
also be less. Indeed, based on the sight line diagrams in Ms Jordan’s evidence, the  
building will barely be visible from the rear yards of 16 and 18 May Road, due to the  
existing double storey garages and lofts in their rear yards.  
71. There is no need for the building to be hidden from residential properties, only for it to  
have some recession so it is not overly imposing or dominant to adjoining residential  
properties. We are satisfied that the recession of level 4 by three metres, as  
recommended by Ms Jordan, can achieve this.  
72. We note that with the removal of level 5, the roof garden and plant will drop down onto  
level 4. With this, there is a need for it to retain a three metre recession from the north  
façade wall of level 4. We have included this as a permit condition.  
73. Ms Wilson submitted on behalf of residential landowners directly north of the site that  
there may be impacts from the building to neighbours through light spill. As residential  
sites that abut a commercial zone, residents should anticipate some disruption from  
night lighting. The intrusion of such an impost, however, can be minimised with permit  
conditions to baffle external lighting and minimise lights left on overnight. We have  
included such conditions, as referred to us by Ms Wilson, to address this issue.  
74. We have also included a proposed condition of Ms Wilson that materials have low  
reflectivity to avoid glare into adjoining rear yards. We have included such a condition,  
but with minor modification to refer to a value based on ‘specular visible light’ that we  
understand to be the relevant measure to be assessed.  
DOES THE EASTERN INTERFACE PROVIDE A REASONABLE EQUITABLE  
DEVELOPMENT AND URBAN DESIGN OUTCOME?  
75. The eastern interface of the building includes:  
st  
a. At ground level (1 storey): a continuous wall on boundary  
nd  
b. At Level 1 (2 storey): a two section wall on boundary interrupted by a 3.02m x  
12.55m light well, roughly centred along the boundary wall length  
rd th  
th  
c. At Levels 2, 3 and 4 (3 , 4 and 5 storeys): the 3.02m x12.55m light well  
(directly above the level 1 light well) is retained and flanked by an arrangement of a  
glazed and solid wall. This includes glazing set back 0.83m from the boundary, a  
boundary wall portion and another glazed element, again set back 0.83m to each  
side of the light well, each roughly equal in length. (see figure 6 below).  
th  
d. Level 5 (6 storey): a continuous setback of 2.980m from the east boundary.  
Figure 6 -extract of east interface (level 2) shown.  
76. The applicant submits that this arrangement allows for an equitable development  
opportunity to the adjoining site. Ms Jordan’s opinion is that this arrangement is  
acceptable, noting there is nothing in DDO21 specifying side setbacks. The council  
questions whether the setbacks at levels 2, 3 and 4 are an appropriate arrangement given  
that that there was no daylight modelling conducted to support whether this would  
provide for an acceptable amenity outcome for building occupants.  
77. The objectors say that it would be a poor outcome to have a glazed wall 830mm away  
from, and directly facing, a potential future boundary wall if the adjacent site is  
developed to the preferred 15 metres, which is a little below level 3 (the fourth floor) of  
the proposed building. It would then leave level 4 (the fifth floor) as a somewhat  
awkward arrangement of exposed wall on boundary and windows, rather than a building  
to be read in the round. In response to questions about the exposure of this level, Ms  
Roberts acknowledged that there may be a need to address the eastern setback better.  
78. During the hearing we raised questions about the practicality of the 830mm setback to  
glazed portions of the east façade. The applicant advised us that there are remedies  
available for dealing with potential issues that may arise at the building permit stage. We  
accept that building code compliance is a matter that could be otherwise addressed  
through remedies such as external sprinklers and fire rated glazing, however, our  
findings are that the setbacks are unacceptable in urban design terms.  
79. While DDO21 is silent on side setbacks in this precinct, the UDGV provides some  
guidance. In addition to the comments in objective 5.1.2 to provide a transition in scale  
(as we have commented already), objective 5.1.3 of the UDGV is ‘to ensure buildings in  
activity centres provide equitable access to daylight and sunlight’. The implementing  
strategy (b) is to ‘allow sufficient distance between buildings to allow access to daylight  
for neighbouring windows’.  
80. We find that the proposed setback arrangement of levels 2, 3 and 4 to be unacceptable  
as:  
a. The setbacks do not allow for equitable development on the adjacent site in terms  
of access to daylight and any possible passive design opportunities should it be  
developed in the future for levels 2 and 3 that may interface a blank wall to the east  
upon future development to the east.  
b. The transition between sites is inadequate. As the larger of sites at the eastern  
interface the review site has greater capacity to provide more ‘breathing space.’ As  
a building to be read in the round, being at least one storey higher than its  
neighbours (even at five not the proposed six storeys) the eastern interface needs  
to better respond to its context.  
81. In response to questions about the eastern interface, Ms Roberts’ evidence was that if a  
further setback was considered necessary by the Tribunal then it should be done in a  
manner that retained the grid pattern of levels 2 to 4. In response to matters we put to  
Ms Roberts about the eastern interface, the applicant submitted that the eastern façade  
of the building at levels 2, 3 and 4 could be set back three metres from the eastern  
property boundary.  
82. We will require this through a permit condition for reasons set out above. This is noting  
that level 5 is removed. In making this finding we note the comments of Ms Roberts that  
levels 2 to 4 provide a strong grid form, currently separated with pillars at four metre  
spacings. We agree with Roberts that the additional three metre setback has a danger of  
losing some impact on this grid in the solidity of the building to the street. However, the  
fins at either edge of the building in the application plans are not identical in off-set and  
we are satisfied that the architect is sufficiently competent to grapple with amending the  
design to incorporate a three metre setback. It requires some small adjustment of where  
the grid is laid out. We note that the three metre setback should be to the glazing line  
with fins being able to protrude out from the three metre setback.  
IS THE RESPONSE TO THE HERITAGE PROVISIONS AFFECTING THE SITE  
ACCEPTABLE?  
83. We have already addressed the general impact of the building on the heritage streetscape  
in our consideration of urban design and building height issues above.  
84. To this extent while we acknowledge Ms Brady’s comments that she is satisfied with the  
impact of the form on the heritage building on the review site and those to the west, it is  
the broader urban design and heritage character of the activity centre, particularly when  
viewed from the west and north-west that lead us to find the top level (level 5) be  
deleted.  
85. We also note the concerns of the objectors that while the heritage façade of 531 Malvern  
Road is notated as being retained, there is a pressed metal ceiling to the ‘in-go’ of the  
entryway that is not specifically notated as being retained. Ms Brady’s evidence is that  
this element should be retained as part of the façade retention and that it could be  
clarified through a permit condition. We have included a condition based on wording  
discussed between the applicant in questions to Ms Brady, at the hearing.  
ARE THERE ANY UNREASONABLE TRAFFIC IMPACTS FROM THE PROPOSAL?  
86. One of the grounds on which the council submits the proposal fails is that the intensity  
of the proposal will unreasonably burden the capacity of the laneway at the rear of the  
site. The council officer report that considered the proposal states that the proposal will  
result in significant and unacceptable traffic impacts and safety concern on the  
surrounding laneways, local street network, the May Road car park and the Woolworths  
car park.  
87. DDO21 includes directions to:  
◦ Locate loading bays and parking areas to minimise adverse amenity impacts to  
adjoining residential properties.  
◦ Improve pedestrian connectivity through 559-569 Malvern Road, from car parking  
to the north through to Malvern Road.  
88. Traffic evidence of Mr Fairlie, called on by the council, is that the access arrangements to  
the laneway are acceptable, subject to a minor change to the profile of the ramp into the  
basement access.  
89. Both Mr Fairlie and Mr Gnanakone provided evidence that the laneway to the north of  
the site can provide safe access and egress to the proposed building given the width of  
the lane and its connection to the broader laneway and road network to the east.  
90. While the lane becomes narrower to the west of the site, and has a narrow northern arm,  
west of 16 May Road, both experts are of the opinion that traffic associated with the  
building is unlikely to gravitate to the west because of this awkward arrangement. The  
experts are both satisfied that most traffic will head east, where there is an existing wider  
lane. Mr Gnanakone’s evidence is that the access is satisfactory as set out in the plans  
before the Tribunal but also has no opposition to the small adjustment recommended by  
Mr Fairlie to make turning in and out of the basement easier.  
91. The council more broadly is concerned that the laneway arrangement to the north of the  
site is inadequate to accommodate the likely additional traffic from the review site. This  
is contrary to the evidence of Mr Fairlie, called by the council. The council and objectors  
also submit that this laneway network relies somewhat heavily on the existing access  
across land at the Woolworths site to Malvern Road noting that the access used across  
the Woolworths land is not a dedicated road reserve. The applicant submits that the  
access across the Woolworths is a public right of way, with it being used by cars and  
pedestrians for public access over many years.  
92. We share Mr Fairlie’s commentary that the laneway can absorb the additional traffic,  
being a relatively minor increase in the existing use of the lane from the existing  
scenario. We also agree with Mr Fairlie that if the applicant is wrong about the rights of  
access over the Woolworths land then it is a matter for the council to address as a  
broader activity centre planning issue. It is not a problem that this particular  
development creates or greatly exacerbates. This is because the additional traffic load on  
the laneway from the proposed development is relatively small and the access over the  
Woolworths land is used by all properties in the area. The proposed access only builds  
on an already existing car park that is accessed from the same point in the laneway  
system as the current building.  
93. We have not included a proposed permit condition of the council that the applicant  
demonstrate enduring legal rights of access between the review site and Malvern Road  
given the issue of access to Malvern Road is one that affects multiple existing sites and  
council assets and is a broader traffic management issue for the council to address in  
consultation with all relevant landowners.  
94. As requested by objectors, the traffic witnesses agree that, while not essential, a ‘no left  
turn’ sign could be included at the exit of the car park to assist in directing traffic east,  
toward the wider, more commercial part of the laneway. We have included a permit  
condition to add this notation.  
IS THE PROVISION OF CAR PARKING ACCEPTABLE?  
95. While some statements of grounds question if the car parking provided in the proposal is  
sufficient, both the objectors represented at the hearing, and the council submit that  
there is too much parking provided in the proposal and that this will exacerbate existing  
traffic issues around the site.  
96. The proposal includes the provision of 127 car parking spaces across three levels of  
basement. Currently the office on the site is serviced by 54 on-site car parking spaces in  
a semi basement area. Both the proposed car park and the existing car park are accessed  
from the laneway to the north of the review site. As set out in Mr Gnanakone’s traffic  
evidence on behalf of the applicant this leads to shortfalls as follows:  
97. No party at the hearing opposes the proposed shortfall. On the contrary the submissions  
of the objectors and the council is that a further reduction should be contemplated to  
acknowledge the good access to alternative transport in the area and the ability to  
manage traffic demand by limiting the supply of car parking on the site. This is noting  
that car parking demand for the office use will be driven by supply provided on the site,  
as there is little to no on-street supply for day long parking in the area for office tenants.  
98. Both Mr Gnanakone and Mr Fairlie’s traffic evidence is that a lower parking provision  
would be acceptable. They both indicated a rate of around 2 spaces per 100sqm would  
provide a reasonable approach. Indeed they were not fixed that a ‘minimum’ or  
‘maximum’ rate may exist. Mr Gnanakone responded to questions on this to suggest that  
only if parking dropped to less than 1 space per 100sqm would be concerning. He also  
noted that the need for parking may be partly driven by tenant needs, rather than a  
specific ratio. He also noted that as a construction cost, providing car parking spaces  
may vary according to whether they led to a logical deletion in a basement level or a clear  
segment of basement.  
99. At the provision of approximately 2 spaces per 100sqm, and the reduced floor areas  
directed by evidence of Ms Jordon to the northern setback of the site, Mr Gnanakone  
estimated that only 93 car spaces were needed. On this basis the applicant offered that  
the level 3 basement that accommodates 27 car parking spaces could be deleted. This  
would lead to 100 spaces across two levels. This is still more than the 2 per 100sqm  
suggested rate, but we accept Mr Gnanakone’s comment that there is little value or need  
to deliberately reduce the number of spaces further than the 100 spaces in the upper  
levels of basement given the need to structurally establish two levels of basement  
regardless.  
100. We note that based on the ‘minimum’ rather than ‘maximum’ rates set for car parking  
provision in the planning scheme, there is no compulsion on the applicant to further  
reduce the parking provided on the site. We also acknowledge that both traffic witnesses  
accept the traffic generated by the proposal, with its current parking provision, is  
acceptable. We are therefore not opposed to the applicant providing more than 2 spaces  
per 100sqm and do not direct that further parking must be removed.  
101. However, given that there is further floor area to be deleted for reasons we have set out  
above (being level 5 and the three metres to the eastern setback of levels 2, 3 and 4) we  
have no objection to further car parking being removed. By example, a structural and  
economic solution may be that basement level 2, rather than 3, is removed.  
102. Therefore, while parties agreed a draft condition could include ‘deletion of basement 3’  
we have amended this to refer to the deletion of at least 27 car spaces. This may result in  
the loss of basement 3 that provides 27 car spaces, or it could lead to a further reduction  
in car parking if this is a viable construction option for the basement arrangements. Our  
condition enables the 27 spaces to be deleted, but further reduction to be contemplated  
if preferred by the applicant, provided it still results in a workable layout in accordance  
with general standards and requirements of clause 52.06 of the planning scheme.  
CONCLUSION  
103. For the reasons given above, the decision of the responsible authority is set aside. A  
permit is granted subject to conditions.  
104. The conditions in appendix A reflect the draft conditions proposed by the council with  
changes made to accord with our findings above.  
105. We also note that we have not amended the condition for the Sustainable Management  
Plan (SMP) as suggested by the applicant in its submission about Amendment VC216 to  
the Stonnington Planning Scheme. We note the revised targets it suggests could be  
incorporated into an updated SMP, but consider this is a matter to be addressed in the  
SMP itself, rather than setting out specific outcomes to the SMP in the condition.  
Alison Glynn  
Lorina Nervegna  
Presiding Member Member  
APPENDIX A – PERMIT CONDITIONS  
PERMIT APPLICATION NO: 0578/21  
LAND:  
531 and 537-541 Malvern Road  
TOORAK VIC 3142  
WHAT THE PERMIT ALLOWS  
In accordance with the endorsed plans:  
• Partial demolition and construction of buildings and works associated with a  
commercial development (retail, food and drink premises, and office - as of right use)  
in a Commercial 1 Zone, Design and Development Overlay and Heritage Overlay; and  
• a reduction in the car parking requirements.  
CONDITIONS:  
1. Before the commencement of the development, one copy of plans drawn to scale and  
fully dimensioned, must be submitted to and approved by the responsible authority. The  
plans must be generally in accordance with the VCAT Amended Plans (Known as  
TP01.03 rev 2, TP03.0B1 rev 3, TP03.0B2 rev 4, TP03.0B3 rev 4, TP03.0LG rev 4,  
TP03.00 rev 4, TP03.01 rev 4, TP03.02 rev 4, TP03.03 rev 3, TP03.04 rev 3, TP03.05  
rev 4, TP03.06 rev 4, TP09.00 rev 4, TP09.01 rev 4, TP09.02 rev 4, TP09.03 rev 4,  
TP10.00 rev 4, TP10.01 rev 4, TP10.02 rev 3, TP10.03 rev 3, TP10.04 rev 3, TP10.10 rev  
3, TP18.00 rev 2, TP18.01 rev 3 and TP23.00 rev 3, all dated 6 April 2022, and prepared  
by Bates Smart) but modified to show:  
(a) Level 5 deleted.  
(b) The eastern elevation of the building set back by at least 3 metres at Levels 2, 3  
and 4 from the eastern property boundary.  
(c) The northern façade set back at Level 4 by at least an additional 4 metres and  
the roof terrace with associated plant set back at least 3.0 metres from the north  
elevation of the amended level 4.  
(d) A canopy provided above the footpath at the main Malvern Road pedestrian  
entrance to match the other canopies along this elevation.  
(e) Details of all colours, materials and finishes. This must include details of the  
colour of the proposed pergola structure on the rooftop garden and the metal  
vertical louvres screening plant areas.  
(f) Confirmation of the screen height (at a minimum of 1.5 metres) and materiality  
to prevent unreasonable overlooking of 14 May Road at Levels 2 and 3.  
(g) Relocation of the door/gate to the basement 1 metre south and adjustment of  
the substation room so as to accommodate vehicle passing in the laneway to the  
north of the site as shown in Appendix C to the evidence statement of Russell  
Fairlie dated 16 May 2022.  
(h) An increase in the clearance of the loading bay within the basement from 3.25  
metres to 3.5 metres.  
(i) Amendment of the crossfall gradient of the vehicular access ramp from 1:12 to  
1:20 in accordance with AS/NSW 28:90:1:2004.  
(j) A ‘no left hand turn’ sign for vehicles exiting the basement.  
(k) Retention of the full extent of the southern façade of 531 Malvern Road  
including:  
(i) the in-go form and detail; and  
(ii) the pressed metal ceiling and canopy.  
(l) Removal of at least 27 car parking spaces.  
(m) Confirmation or notation that no part of the building on 531 Malvern Road  
exceeds 15 metres in height.  
(n) A permanent, fixed bollard on the north-westernmost corner of 537-541  
Malvern Road to minimise the potential for vehicles to access Sams Way.  
(o) Notation specifying that lighting within the offices is to be on a timer or sensor  
so that the internal lights are switched off when the offices are not in use.  
(p) Any changes required by Condition 4 (SMP).  
(q) Any changes required by Condition 7 (WSUD).  
(r) Any changes required by Condition 9 (WMP).  
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. Except with the written consent of the responsible authority, Bates Smart Pty Ltd must  
be retained to provide architectural oversight during construction and completion of the  
detailed design as shown in the endorsed plans and schedule of materials and finishes to  
the satisfaction of the responsible authority. All materials must be confirmed as having  
light reflectivity no more than 25% of specular visible light to the satisfaction of the  
responsible authority. When approved, the schedule will be endorsed and will form part  
of the permit.  
4. Prior to the endorsement of any plans pursuant to Condition 1 a Sustainable  
Management Plan (SMP) must be submitted to and approved by the responsible  
authority. Upon approval the SMP will be endorsed as part of the planning permit and  
the development must incorporate the sustainable design initiatives outlined in the SMP  
to the satisfaction of the responsible authority. The SMP must be generally in accordance  
with the SMP Report prepared by ADP Consulting Engineers and dated 29 June 2021.  
Amendments to the SMP must be incorporated into plan changes required under  
Condition 1. The report must include, but not be limited to, the following:  
(a) Demonstrate how Best Practice measures from each of the 10 key Sustainable  
Design Categories of Stonnington Council’s Sustainable Design Assessment in the  
Planning Process (SDAPP) have been addressed;  
(b) Identify relevant statutory obligations, strategic or other documented  
sustainability targets or performance standards; This should include  
(c) Document the means by which the appropriate target or performance is to be  
achieved;  
(d) Identify responsibilities and a schedule for implementation, and ongoing  
management, maintenance and monitoring;  
(e) Demonstrate that the design elements, technologies and operational practices  
that comprise the SMP can be maintained over time.  
5. All works must be undertaken in accordance with the endorsed Sustainability  
Management Plan to the satisfaction of the responsible authority. No alterations to the  
Sustainable Management Plan may occur without written consent of the responsible  
authority.  
6. Prior to the occupation of the development approved under this permit, a report from  
the author of the Sustainability Management Plan, approved pursuant to this permit, 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 Sustainability Management Plan have been implemented in  
accordance with the approved plan.  
7. Prior to the endorsement of plans, the applicant must provide a Water Sensitive Urban  
Design Response addressing the Application Requirements of the Water Sensitive Urban  
Design Policy to the satisfaction of the responsible authority. All proposed treatments  
included within the Water Sensitive Urban Design Response must also be indicated on  
the plans.  
8. The project must incorporate the Water Sensitive Urban Design initiatives detailed in  
the endorsed site plan and/or stormwater management report.  
9. Prior to the endorsement of plans, 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 Leigh Design and dated 30  
June 2021. The Waste Management Plan must include:  
(a) Dimensions of waste areas;  
(b) The number of bins to be provided;  
(c) Method of waste and recyclables collection;  
(d) Hours of waste and recyclables collection;  
(e) Method of presentation of bins for waste collection;  
(f) Sufficient headroom within the basement to allow the passage of waste  
collection vehicles;  
(g) Sufficient turning circles for the waste collection vehicles to drive out in  
forward gear from within the basement;  
(h) Strategies for how the generation of waste and recyclables from the  
development will be minimised.  
When approved, the plan will be endorsed and will then form part of the permit. Waste  
collection from the development must be in accordance with the plan, to the satisfaction of the  
responsible authority  
10. Prior to the commencement of the development, the owner of the Site must enter into an  
agreement pursuant to Section 173 of the Planning and Environment Act 1987 with the  
responsible authority. All costs associated with the creation, review, execution and  
registration of the agreement including legal fees, must be borne by the owner of the  
Site. The agreement must be registered on title and run with the land, and must provide  
(to the satisfaction of the responsible authority) that the owner of the Site will not create  
or seek to provide vehicular access to or from the Site over Sams Way for a period of 20  
years following completion of the development.  
11. During construction of the development, Sams Way can only be used for construction  
activities (including any truck movements) between 7am and 4pm Monday to Friday.  
12. Prior to a building permit being issued, a report for the legal point of discharge must be  
obtained from Council and a drainage design for the development must be prepared by a  
suitably qualified Engineer in accordance with all ‘recommendations’ and requirements  
contained in that report. All drainage must be by means of a gravity based system and  
not pumped, with the exception of runoff from any basement ramp and agricultural  
drains which may be pumped. The relevant building surveyor must check and approve  
the drainage design and ensure that protection of the building is provided from a 1 in  
100 A.R.I. rainfall event as required by the Building Regulations.  
13. Prior to an ‘Occupancy Permit’ being issued, a suitably qualified Engineer must carry out  
a detailed inspection of the completed stormwater drainage system and associated works  
including all water storage tanks to ensure that all works have been constructed in  
accordance with the approved design and the relevant planning permit conditions.  
Certification of the completed drainage from the Engineer must be provided to Council  
prior to a ‘Statement of Compliance’ being issued for the subdivision.  
14. The existing Malvern Road footpath and rear right-of-way levels must not be lowered or  
altered in any way, including at the property line (to match the new development levels).  
15. Prior to the occupation of the building, the walls on the boundary of the adjoining  
properties must be cleaned and finished to the satisfaction of the responsible authority.  
16. Prior to the occupation of the building, all screening devices to limit overlooking as  
shown on the endorsed plans, must be installed to the satisfaction of the responsible  
authority and maintained to the satisfaction of the responsible authority thereafter for  
the life of the building.  
17. All plant and equipment (including air-conditioning units) must be screened and baffled  
and/or insulated to minimise noise and vibration to ensure compliance with noise limits  
determined in accordance with Part 5.3 - Noise, of the Environment Protection  
Regulations 2021 to the satisfaction of the responsible authority.  
18. Any poles, service pits or other structures/features on the footpath required to be  
relocated to facilitate the development must be done so at the cost of the applicant and  
subject to the relevant authority’s consent.  
19. 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.  
20. Lighting within the offices and basement car park areas, as exposed to the rear laneway,  
is to be on a timer or sensor so that the internal lights are switched off when the areas  
are not in use so as to minimise the spill of light beyond the building to the satisfaction  
of the responsible authority.  
21. Any external lighting must be designed, baffled and located so as to minimise any  
adverse effect on adjoining land to the satisfaction of the responsible authority.  
22. This permit will expire if one of the following circumstances applies:  
(a) The development is not started within two years of the date of this permit.  
(b) The development is not completed within four years of the date of this permit.  
In accordance with Section 69 of the Planning and Environment Act 1987, a request may be  
submitted to the responsible authority within the prescribed timeframes for an extension of  
the periods referred to in this condition.  
- End of conditions -  
[1]  
Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 states a failure  
to make a decision is deemed to be a decision to refuse to make the decision.  
[2]  
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.  
[3]  
The application lodged with the council was for a seven storey building. The plans  
substituted at the hearing amended the proposal to a six storey building.  
[4]  
Mr Klarica was the representative on Ms Wilson’s behalf on Day 4 of the hearing.  
[5]  
Varying from east to west across the rear of the site as it natural ground level falls away  
from east to west.  
[6]  
As set out in the Panel report to Amendment C272 – Pages 44 and 45.  
[7]  
The height varies from east to west. We have also estimated the highest point of level 5 to  
be in from its northern façade to accommodate a reduction in this floor level as recommended  
by Ms Jordan and accepted by the applicant.  
[8]  
Noting that the sites both slope to their rear, northern boundaries. At the leading, front  
edge of the proposed fifth level, the building is approximately 24.9 metres high from natural  
ground level. At its rear, it is over 26 metres high from natural ground level.  
[9]  
Section 5.8.2 Page 28 of the structure plan.  
[10]  
For reasons we set out elsewhere in our decision.  


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