1. Among other things, the Tribunal was taken to the following clauses of the Scheme:

1. 21.04 - Land Use and within this clause, 21.04-4: Industry; 2. 21.05 - Built Form and within this clause, 21.05-2: Urban Structure and Character, and, 21.05-3: Urban Design and the Public Realm;

1. 21.06 - Neighbourhoods and within this clause, 21.06-5: South Melbourne, General strategies for South Melbourne Central (SMC) and Eastern Business District (within SMC); and

1. 22.06 - Urban Design Policy for Non-residential Development and Multi Unit Residential Development.
2. The Applicant submitted that the proposed development was appropriate for the strategic and local planning context. Specifically, as the review site is located within an established business precinct in the C2Z, there was strong strategic support for a purpose-built office and commercial space with land intensification in the Eastern Business Precinct.
3. We discuss the substance of these provisions, as relevant to the proposal, further below.

1. The subject land is affected by the Design and Development Overlay. More specifically, the site is in schedule 8 of the DDO. Within DDO8, the site is in Area 7, Sub-precinct 7a.
2. We need to determine what the effect of DDO8 is in terms of what has been proposed: does the proposal fall foul of aspects of the DDO8 such that it would be prohibited?
3. The controls that apply to the site in terms of the DDO are contained in the DDO head clause, the Schedule 8 general/overall provisions, the provisions relating to Area DDO8-7 and those relating to Sub-precinct 7a. That is, there are several layers to the control.

1. Clause 43.02-2 of the DDO provides that a permit is required to construct a building or construct or carry out works and that this does not apply "if a schedule to this overlay specifically states that a permit is not required". The clause goes on to provide:

Buildings and works must be constructed in accordance with any requirements in a schedule to this overlay. A schedule may include requirements relating to:

• Any other requirements relating to the design or built form of new development.

A permit may be granted to construct a building or construct or carry out works which are not in accordance with any requirement in a schedule to this overlay, unless the schedule specifies otherwise.

1. DDO8 relates to South Melbourne Central (SMC). Clause 2.0 of DDO8 is headed "Buildings and works, Permit requirement" and states:

A permit cannot be granted to vary any mandatory requirements of this Schedule. This does not apply to the following circumstances:

1. The clause goes on to list certain situations where a permit may be granted to allow a greater overall building height or to increase the street wall height. It then states:

A permit may be granted to vary the requirements as specified in this Schedule in the above circumstances, subject to the proposal achieving the Preferred Character and Design Objectives specified for that Precinct and any local planning policy requirements, to the satisfaction of the responsible authority.

1. The Decision guidelines contained in clause 5.0 of DDO8 direct a decision maker to consider, amongst other things:
   • Whether the proposed buildings or works are in accordance with the General Requirements of this Schedule and the Requirements of the relevant area.
2. By "relevant area" it is assumed that this means the various Precincts referred to in clause 1.0 Design objectives, that are then referred to with Area numbers in the part of the Schedule located under the heading "Tables to Schedule 8". These words suggest that what then follows comprises the "table" to the schedule to which various parts of DDO8 refers, although it might be said that the formatting of the information does not resemble what many would consider to be a table.

1. The site is in the Eastern Business Precinct, Area DDO8-7, which contains under the heading "Requirements" the following text:

The street wall parapet height must be a minimum of 11 metres and must not exceed 12 metres.

A maximum of 8 metres (equivalent of 2 storeys) change of height is allowed within 5 metres of an abutment to existing buildings.

The ground floor level must not be more than 0.75 metres above the footpath level or 1:100 year flood level.

At least 25% of the ground floor façade should be clear-glazed or transparent.

New crossovers are generally discouraged. Rear access should be utilised where available.

1. The site is also within Sub-precinct 7a. Under the heading "Buildings heights and setbacks above street wall for sub-precinct areas" is the following text relevant to Sub-precinct 7a:
   • The maximum overall building height should not exceed 23.5 meters or 6 storeys, whichever is lesser.
   • Above the street wall and up to a height of 19.5 metres (levels four and five) the building must be set back a minimum of 5 metres from the street frontage.
   • That part of the building above 19.5 metres (level six) must be set back so that it is not visible when viewed from the street frontage of the site/s directly opposite on the other side of the street, at an eye level of 1.6 metres above the footpath level.
   • Where the street wall height is less than 10 meters both levels 5 and 6 must be set back so that they are not visible when viewed from the street frontage of the site/s directly opposite on the other side of the street, at an eye level of 1.6 metres above the footpath level.
2. As for some of the terminology:
   1. Street wall height is defined in DDO8 as follows:

Street Wall Height is the height of the wall at zero setback from the adjoining pavement. Where there is no pavement the height is to be measured from the ground level adjoining the site;

1. Frontage is defined in clause 73.01 of the Scheme as:

The road alignment at the front of a lot. If a lot abuts two or more roads, the one to which the building, or proposed building, faces;

1. Building height is defined in clause 73.01 of the Scheme as:

The vertical distance from natural ground level to the roof or parapet at any point.

1. We note that there is no definition of "street wall parapet height" in DDO8 or in clause 73.01.

What does DDO8 say about height in relation to the proposal?

The maximum overall building height should not exceed 23.5 meters or 6 storeys, whichever is lesser.

1. The maximum overall building height is 32.3 metres and 10 storeys, so exceeds both the metric measure and the storey measure.
2. It was the Council's position at the hearing that this is a discretionary requirement. Notwithstanding, it was the Council's position that the maximum overall building height should not exceed 23.5 meters or 6 storeys.
3. Clause 2.0 includes the following amongst the circumstances listed as exempt from where a permit cannot be granted to vary mandatory requirements:

A permit may be granted to allow architectural features such as domes, towers, masts and building services that do not exceed the required height by more than 4 metres. The floor area of these features must not exceed 10% of the gross floor area of the top building level.

1. The presence of this exemption suggests that the overall building height requirement is mandatory. However, if we accept, as was the common consensus, that the maximum overall building height requirement is discretionary, there is no need for this exemption. We note that the Tribunal has accepted that wording to the same effect (albeit related to a different Sub-precinct) is discretionary.[2]

The street wall parapet height must be a minimum of 11 metres and must not exceed 12 metres.

Where the street wall height is less than 10 metres both levels 5 and 6 must be set back so that they are not visible when viewed from the street frontage of the site/s directly opposite on the other side of the street, at an eye level of 1.6 metres above the footpath level.

Street wall height is measured as being the height of the wall at zero setback from the adjoining pavement.[3]

1. Street wall parapet height is not defined. It is unclear how this height differs from street wall height; one assumes that both measurements refer to the height of the wall that is at zero setback from the adjoining pavement, and where the street wall includes a parapet, measured to the top of the parapet.
2. If the two terms are referring to the same measurement, it is unclear how they can both work together, given one appears to prevent the height from being less than 11 metres and the other deals with the situation where the height is less than 10 metres.
3. The confusion created by these terms and the inability for them to logically work together supports the Applicant's proposition that despite the inclusion of the word "must" in the DDO8-7 provision, this requirement is not mandatory (in the sense that it cannot be varied with a permit).
4. Clause 2.0 includes the following amongst the circumstances listed as exempt from where a permit cannot be granted to vary mandatory requirements:

A permit may be granted to increase the street wall height of corner sites, as specified in the table to this schedule, by up to 4 metres. Where the site has a street frontage of over 15 metres, the street wall height may be increased by 4 metres within a distance of 15 metres from the corner. Increased street wall heights at corners must comply with the solar access requirements of the sub-precinct.

1. The presence of this exemption suggests that the street wall height requirement is mandatory.
2. In addition, clause 3.0 General Requirements contains the following text:

The street wall should be built to side boundaries, except in the Kings Way Mixed Use Precinct (see Kings Way Mixed Use Precinct requirements).

1. The street wall height of the building on the Moray Street frontage measures 11 metres where it abuts 140-144 Moray Street and 16 metres for the portion within 15 metres of the corner of Moray and York streets. This frontage has been designed with a view to complying with the substance of the street wall height requirement, including the allowance for the corner.
2. The Council's view was that as the development faces Moray Street, this is the street frontage for the purposes of the requirement in Sub-precinct 7a. The Moray Street frontage complies with DDO8 in terms of the street wall height.
3. The street wall height of the building on the York Street frontage measures 16 metres on the corner of Moray and York Streets and tapers and increases

to a height of 28.130 metres[4] where it is setback 4.5 metres from the west boundary abutting 49-55 York Street. Within this 4.5 metre setback the street wall height is 12.3 metres. This frontage does not comply with the street wall height requirement. The Council's view was that a street-wall of 11 metres to a maximum of 12 metres is required to York Street as a mandatory requirement of DDO8-7a.

A maximum of 8 metres (equivalent of 2 storeys) change of height is allowed within 5 metres of an abutment to existing buildings.

1. The existing building on the southern interface at 140-144 Moray Street, is 2 storeys and setback from the common boundary by approximately 900mm. The development does not provide a maximum of 8 metres (2 storeys) change of height within 5 metres of this abutment, as required, instead being designed with a façade that is 11.00 metres high at the Moray Street street-wall for a depth of 5 metres and thereafter extending from 16 metres to 31 metres for the remaining depth of the south boundary (i.e. the tapered portion of the façade).
2. The Council argued that:

... if the sites to the west and south were redeveloped to the discretionary height limit of six storeys, the difference in height would be far less pronounced. However, Council considers that the lack of separation between the buildings, combined with the excessive height of the proposed development would result in unacceptable and overwhelming visual bulk in the streetscape.

1. The application of this requirement results in a maximum of 2 storeys change of height being allowed within 5 metres of the abutment to each existing building, meaning that the proposal could only be 4 storeys in each of those areas.
2. The Applicant argued that this requirement is unsatisfactory in that it benefits developments that occur later over those that occur earlier in time, given the reference point is the height of existing abutting buildings.

What does DDO8 say about setbacks in relation to the proposal?

1. Clause 3.0 General Requirements contains the following text:

Buildings must have a zero setback to the street frontage, unless specified in the table to this schedule. A permit may only be granted to vary the setback where a public open space or landscaped area is created. This setback must:

be designed, landscaped and furnished to the satisfaction of the Responsible Authority.

make a positive contribution to the appearance and amenity of the building and the streetscape.

1. Sub-precinct 7a includes the following text:
   • Above the street wall and up to a height of 19.5 metres (levels four and five) the building must be set back a minimum of 5 metres from the street frontage.
   • That part of the building above 19.5 metres (level six) must be set back so that it is not visible when viewed from the street frontage of the site/s directly opposite on the other side of the street, at an eye level of 1.6 metres above the footpath level.
2. Given the definition of frontage in the Scheme,[5] it was common ground between the parties at the hearing that the street frontage to which these requirements refers was that of Moray Street.
3. Between the 16 metre street wall height (which correlates with the 4th storey above ground level) and 19.5 metres (which corelates with the 5th storey above ground level) the building is setback 5 metres.
4. The application plans depict how that part of the building above 19.5 metres is set back so that it is not visible when viewed from the other side of Moray Street, at an eye level of 1.6 metres above footpath level.
5. The proposed development complies with both requirements for the Moray Street frontage.
6. The Council's view was that upper level setbacks are required above the street wall to York Street that are commensurate with the upper level setbacks to Moray Street and that this is mandatory. Such setbacks have not been provided on the York Street elevation.

What were the parties' overall positions on the interpretation of DDO8?

1. The Council argued that the proposal is inconsistent with the requirements of the DDO8, some of which are mandatory. These are detailed above.

1. The Applicant submitted that irrespective of what might have been intended by the Planning Panel that considered the relevant planning scheme amendment that introduced these provisions into the Scheme,[6] the wording of DDO8 as it relates to this application does not contain any mandatory requirements.

The Applicant's primary argument was that for a Requirement to be mandatory, the Requirement should be followed by words to the effect that 'a permit may not be granted to vary this requirement'. The Applicant argued that the use of the word "must" in a sentence, of itself and without more, is insufficient to convert the substance of the sentence into a mandatory requirement.

In further support of this interpretation, the Applicant stated:

1. The purposive approach to statutory construction is the preferred method, whereby an interpretation that would promote the purpose or object of the Act or subordinate instrument is to be preferred to one that would not;
2. The provisions of DDO8 are not expressed in clear, mandatory terms, but rather, contain a number of performance-based elements that allow for flexibility in the measuring of the required outcome;

1. By contrast, other Schedules to the DDO contain express language providing that a permit may not be granted to vary a requirement;[7]

1. Clause 43.02-2 is clear in providing that a planning permit may be granted for buildings or works that are not in accordance with any requirement in a schedule unless the schedule specifies otherwise. In the case of DDO8 as it relates to the subject site, the Schedule does not specify otherwise - i.e. it does not state that a planning permit cannot be granted for buildings or works that are not in accordance with any particular requirement in Schedule 8;
2. The Tribunal has, in other cases, found that DDO8 is confusing and unclear;[8]
3. The Urban Design Framework, apparently the source of the street wall provisions, does not indicate that the provisions in question are mandatory; and
4. If the provisions were mandatory, this would result in illogical outcomes in terms of, for instance, a development on a corner site being limited to providing less floorspace than a mid-block site, when corner sites are usually accepted as having a greater development potential.

1. The Applicant's secondary position was that if the Tribunal considered that the reference in clause 2.0 of DDO8 to "mandatory requirements" should be given some work to do, the only mandatory requirements relevant to Sub-precinct 7a are the second and third dot points that deal with setbacks above the street wall to various heights and refer to the "street frontage". In the Applicant's submission, the "street frontage" is clearly Moray Street and

the proposal complies with the content of those dot points as regards the upper level setbacks on that street frontage.

DDO8 is a convoluted and confusing planning control and one which would benefit from a thorough revision directed to clarifying its intent and implementation. It is difficult to envisage that consistent and predictable results will be achieved by the implementation of a control which is as poorly expressed as this DDO.[9]

Tribunal's findings: How do we interpret DDO8 as it relates to the proposal?

1. At the outset, we observe that the amount of hearing time spent addressing the question of whether the provisions of the DDO8 that apply to the subject site and the proposed development are mandatory or discretionary - and, by extension, whether a development proposal is or is not prohibited - is indicative of the point advanced by the Applicant, namely that DDO8 is a convoluted and confusing planning control.
2. That said, the approach to the operation of the DDO head clause is clear. There is a permit trigger for buildings and works and fencing (subject to some qualifications). The buildings and works must be constructed in accordance with any requirements contained in a schedule to the DDO, and a permit may be granted for buildings and works that are not in accordance with any such requirement, unless the schedule specifies otherwise. So the intention is that the overlay will set out the built form outcomes sought to be achieved and will specify where those outcomes can be varied with a permit and where they cannot.
3. In order for a schedule to specify otherwise, the wording should be clear and unambiguous. An example of such wording was considered in Le Tet Property Group Pty Ltd v Port Phillip CC [2016] VCAT 1067, a decision of Deputy President Dwyer referred to us by the Applicant. In that case, DP Dwyer made a declaration that a provision of DDO26 that contained the following wording was a mandatory provision:

A permit may not be granted to construct a building or construct or carry out works which are not in accordance with this requirement unless allowed by clause 4.0 of this schedule.

1. Clause 4.0 to that schedule is headed "Buildings and Works: exceptions to mandatory requirements" and contains the opening wording:

In relation to any requirements of this schedule which otherwise operate as mandatory requirements, a permit may be granted to vary such requirements if either of the following circumstances apply:

1. By inference, any requirement in the relevant schedule that contained the wording preventing a permit from being granted to vary the requirement,

except for where this was allowed by clause 4.0, was one that would otherwise operate as a mandatory requirement.

1. The wording of the mandatory provision in that case was:

Development beyond the setbacks identified above must not exceed a height of 30 metres. A permit may not be granted to construct a building or construct or carry out works which are not in accordance with this requirement unless allowed by clause 4.0 of this schedule.

1. By contrast, the provisions in the DDO26 that were expressed to be matters that "must" be done but which did not contain an explicit statement that a permit may not be granted to vary the requirement, were declared to be discretionary requirements that may be varied by a permit.
2. One of the declared discretionary requirements in that case is as follows:

A 3 metre landscaped setback must be provided to all street frontages, except laneways and Kings Way.

1. It is noteworthy that in that case clauses containing both the explicit statement and not containing such statement were contained within the same schedule, enabling there to be a ready and obvious difference between what was intended in one situation compared with another. That is, one could clearly infer that had the Scheme intended that a deviation could be allowed with a permit, or would not be able to be permitted, words would be employed to such effect.
2. In the present case, words to the effect of those extracted above are not included in the relevant DDO8 provisions - nor, would it appear, in any other part of DDO8. What the provision does contain is the reference in clause 2.0 under the headings "Buildings and works" "Permit requirement" that:

A permit cannot be granted to vary any mandatory requirements of this Schedule. This does not apply to the following circumstances:

1. One is then left with the question of what is a mandatory requirement? Planning Practice Note 59 defines a "mandatory provision"[10] as:

...a requirement or control that must be met and provides for no opportunity to vary the requirement.

1. This is to be contrasted with a "performance based provision", which provides for flexibility in the approaches or variation in the measure to achieve the required outcome.
2. We observe that the term "Requirement" is commonly used across the Schedules to the DDO. In DDO8, the term "Requirement" is used to refer to matters that:

The ground floor level must not be more than 0.75 metres above the footpath level or 1:100 year flood level;

1. appear to envisage judgement being employed, notwithstanding the wording used, for example:

Upper level side walls must be designed to create an attractive façade;

1. appear to be more of a built form objective than an absolute requirement, for example:

The maximum overall building height should not exceed 23.5 metres or 6 storeys, whichever is the lesser; and

1. are expressed in terms that are more in the nature of suggestions or intentions, for example:

New crossovers are generally discouraged. Rear access should be utilised where available.

1. If we approach the interpretation of DDO8 in accordance with the primary position of the Applicant, then none of the Requirements in DDO8 are mandatory and all can be varied with a planning permit. This would leave clause 2.0 with no work to do, as there would be no mandatory provisions to which it relates. This is not desirable as this would also involve disregarding the detail contained in the exempted circumstances, which should be assumed has been included for a reason.
2. However, if we approach the interpretation of DDO8 as the Council did, it would be up to the reader of the "Requirements" to ascertain which are mandatory and which are discretionary in circumstances where this is not, in our view, clear based on the varied language used throughout the Schedule.
3. Alternatively, to approach all of the requirements as being mandatory cannot be correct given how many of the requirements are expressed in less than absolute language, which no reasonable person would consider to be "mandatory requirements".
4. We find that the drafting of the provisions of the DDO8 that are relevant to the case before us is unclear and leads to uncertainty and subjectivity. Such an outcome is contrary to the guidance expressed in Planning Practice Note 59[11] in terms of writing a mandatory provision,[12] where it is said that:

• implement an objective
• be clear in its intent to users
• be able to achieve consistent and predictable results

be as measurable as possible using a quantifiable measure

1. As detailed above, the proposal is inconsistent with DDO8 requirements relating to:
   1. the street wall height requirement on York Street; and
   2. the transition in height at the southern interface and at the western interface.
2. If these requirements are construed as mandatory, the proposed development would be prohibited. If they are interpreted as discretionary and matters for which a permit can be obtained to vary each requirement, then the proposed development in its current form could be approved. It is then a matter for us to exercise our discretion as to whether approval is appropriate in the circumstances.
3. As is stated in Planning Practice Note 59, mandatory provisions in the Victorian Planning Provisions are the exception, with the planning system primarily based on there being discretion available for most developments and that applications be tested against objectives and performance outcomes rather than being subject to prescriptive mandatory requirements. This allows for circumstances peculiar to a development to be considered in the assessment process. Where a mandatory provision is employed, this is to provide certainty and consistency in appropriate circumstances e.g. in areas of high heritage value or of strong and consistent character themes.
4. Although clause 2.0 of DDO8 refers to mandatory requirements, we find that the language adopted in DDO8-7 (and the relevant overarching part of DDO8) does not clearly identify which requirements are mandatory and which are discretionary. There are no clear statements, as there are in DDO26 (and which were considered in Le Tet), as to where a planning permit cannot be granted to vary a requirement. As such, in the absence of such clear language, in our view it is not clear that it was the intention of the Scheme to impose mandatory requirements in DDO8-7 (and the relevant overarching part of DDO8).
5. Instead, we (as the reader) would be left to interpret whether each requirement is mandatory or not, based on our impression of the language used.
6. We are not confident that such an approach, in circumstances where the drafting is inconsistent and creates uncertainty, furthers the purpose of DDO8, being to identify various precincts within the South Melbourne Central area that are affected by specific requirements relating to design and built form of new development, and for development in each precinct to be guided by its Preferred Character and Design Objectives.
7. In DDO8-7 (and the relevant overarching part of DDO8), where:

there is no consistent use of the terms "must" and "may", but rather, where different words and expressions are used without any apparent method; and

we have identified apparent internal inconsistencies within DDO8, e.g. between street wall height provisions,

this has the potential to produce built form outcomes that are not mindful of their context, but which are driven by compliance with strict requirements, and where such determination is subjectively in the hands of the particular reader. This is unlikely to produce certainty and consistency in outcomes. Further, depending who is interpreting the requirement, this approach potentially removes the discretion otherwise available to the decision-maker to determine whether a particular design response will be in keeping with the Preferred Character Statement, will be compatible with the Design Objectives and will be in accordance with the relevant Requirements.

1. We think a preferable approach in the circumstances is to treat the Requirements in DDO8-7 (and the relevant overarching part of DDO8) as being discretionary in nature and able to be varied with a planning permit. This provides the decision maker with discretion to allow an alternative design response if it is appropriate in the context of the site and its surrounds, but within the framework of what the Scheme is seeking in terms of Preferred Character, Design Objectives and the substance of the Requirements themselves.
2. Accordingly, we have proceeded on the basis that the relevant Requirements are discretionary.

DOES THE PROPOSAL PROVIDE AN ACCEPTABLE BUILT FORM OUTCOME?

What is the strategic planning context of the site?

1. The DDO has been addressed at length above in terms of whether it contains mandatory or discretionary provisions.
2. Our findings are that all of the relevant provisions are discretionary. In determining whether to exercise our discretion to grant a planning permit for the development, we have had regard to, among other things, the decision guidelines and design objectives.
3. The DDO head clause contains decision guidelines at 43.02-5 that require consideration of, amongst other things, whether the built form is in keeping with the character and appearance of adjacent buildings, the streetscape, the area and the scale of any identified heritage places surrounding the site.
4. The design objectives of DDO8 refer to there being a distinctive hard edge character of commercial and industrial precincts that are to be respected by providing zero setbacks, encouraging vibrant street life and the provision of

new private and public open spaces, ensuring the sense of openness and sky visibility is maintained, emphasise corner sites, and creating a high quality public realm with particular emphasis on pedestrian friendliness and active street frontages.

A further design objective seeks to maintain the distinction in building scale between SMC, which is characterised by low to medium rise buildings, and the highrise buildings of Southbank, the Central Activity District and Kings Way.

1. Another design objective of DDO8 is a desire to provide for high quality, well designed new development in the precincts where the South Melbourne Central Structure Plan 2007 has recommended significant changes in land use.[13] The site is located in Precinct 7: Eastern Business Precinct.
2. The Eastern Business Precinct, Area DDO8-7 has the following Preferred Character and Design Objectives:

• An eclectic, vibrant and attractive business area with a mixture of innovative new architecture and refurbished traditional industrial buildings attracting a wide range of creative businesses and industries.
• The variety of streetscapes and spatial experiences within this precinct will be reinforced through the design of buildings, the public realm and planting with the highly valued 'fine urban grain' of the buildings and lot sizes remaining a defining feature of this precinct.

• To foster a new and distinct urban character that complements and reflects the traditional industrial nature of this precinct.
• To retain the eclectic mix of building types and functions.
• To create overall visual consistency in the precinct with a standard street wall height of the equivalent of three storeys.
• To provide the main 30 metre wide streets with a greater sense of enclosure and definition through new built form and planting, while avoiding a canyon effect and retaining the sky visibility. This also includes the section of Eastern Road between Bank and Dorcas Streets that is a key movement route.
• To emphasise Moray Street as the principal street of this precinct in terms of its activity, and as a key pedestrian route, through public realm treatment and planting.
• To maintain sunlight access to residential properties on the southern side of Bank Street.

Is the design, height and visual bulk of the development acceptable?

1. The Council opposed the development on the grounds that the visual bulk and height were inconsistent with policy and DDO8. Ms Robertson provided the decision guidelines at clause 43.02-5 which states that the responsible authority must consider a number of guidelines including the following:

Whether the bulk, location and appearance of any proposed buildings and works will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area.

1. The DDO8 design objectives for South Melbourne Central include providing 'high quality, well-designed new developments'. In Precinct 7 (Eastern Business Precinct) the design objectives include:

To respect the hard edge character of the commercial and industrial precincts of SMC by requiring zero setbacks...to emphasise corner sites through built form, setbacks, street level activity and/or landscape treatments...to encourage development to express detailed articulation and varied streetscape frontages.

1. Ms Brennan submitted that this design response sought to avoid a 'wedding cake' tiered form in response to the setback requirements and results in a "rare instance of exemplary architecture" suitable for the creative industries office use it proposes, as the architects have expressed a desire to have their Melbourne office located there. Professor McGauran also stated that the site had an important role for delivering accommodation for the innovation industry. In his opinion the development:

...through the design expression and design articulation sought to both enrich the quality of the urban environment and the reading of corner sites as preeminent ordering elements of the reimagined commercial neighbourhood.

1. Ms Roberts opinion was that the built form responded positively to the mix of policies of the site and was highly articulated and responded well to the eclectic neighbourhood.

1. The building has been designed as a tapered form rising from a set of two notional street-wall elements at Moray Street, which as a pair form an asymmetrical composition. They are related in form-outline and proportions, but the southern element is smaller, responding to the southern interface, while the northern element is larger terminating at the corner of Moray and York streets.
2. We find that this Moray Street elevation responds to the commercial setting by providing glazed curtain wall elements within the two form-outlines which also break up what would have been a large expanse of east facing glazed curtain walling. The built form rises behind this façade but is stepped at each change of level above the fifth storey (level 4) and has been

demonstrated by the architects as not being visible from a 1.5 metre height above ground level.

1. The York Street elevation adopts a different architectural language and has an expressed faceted façade rising from the 19.5 metre street wall at the Moray Street end, to the maximum overall building height of 32.3 metres setback 4.5-5.5 metres at the abutting west boundary. The extent of building that achieves the maximum height is confined to a portion at the western edge of the north façade as viewed from York Street or the York Street Moray Street intersection.
2. The combination of the tapering of the built form executed in the faceted north façade will in our view provide a dynamic and expressive built form adding an architecture of unconventional but well thought through form-making. We find that this will achieve the aspirations of the DDO8 controls for high quality architecture and agree with the Applicant that "this building is an exemplar of good design".

1. During the hearing the Tribunal questioned why the first four levels of this faceted façade had a darker glass specification than the upper tapered levels. The Applicant submitted that this had occurred in response to Council officer concerns at the lack of a street wall expression at York Street and a suggestion to specify a darker glazing at these levels. We disagree with the notion that the darker glazing expresses a street wall and find that it undermines the design intent and overall integrity of the tapered and faceted façade.
2. We also requested in our interim order that the architect review the glazing selection of all facades to ensure that the internal daylight amenity was not compromised for occupants. We discuss this further below.
3. On this basis, the architect revised the glazing selection and provided the Tribunal with two options at the further hearing. The architect and ESD consultant expressed a preference for a lighter green tint glazing, and we find that this has provided a more coherent design expression than the two types of glass submitted previously to the York Street façade. The Moray Street façade is also in our view improved with the revised glazing selection and offers a more appropriate urban design response.

1. Ms Roberts' opinion was that the response to the corner provided emphasis, in line with urban design principles and the DDO. Our interim order required the architect consider whether the corner condition could better respond to the DDO design guidelines. The architects provided a revised corner treatment and Façade Map showing the corner modified by a solid

framing element in champagne tinted metal cladding panel (CL01). They submitted that:

This framing element architecturally addresses both street frontages, turning the corner and providing continuity and visual cohesion between the two facades.

1. The Tribunal finds this to be a positive design response and accepts that the corner condition satisfies the design objectives of DDO8 without compromising the design integrity of the architecture in general.

In terms of setbacks to the southern and western boundaries?

1. At the west the building is setback 4.5-5 metres, with the end of the highest point of the tapered form occurring at these points. As the west façade of the exposed upper levels also feature the faceted façade design, we find there is sufficient design interest and intrigue to mitigate the height. The architecture adds a combination of varying angles, shapes, forms and particularly heights to an otherwise urban environment of rectilinear elements. We find that the additional height and reduced setbacks are acceptable with this design.
2. To the south, we find that for similar reasons given above for the west, the heights and setbacks are acceptable, and we accept the evidence by Professor McGauran and Ms Roberts that the design is worthy of support.

1. The Tribunal finds that the revised materials palette following the interim order that now specifies a consistent palette of glazing and metal cladding, simplifies the overall reading of what we consider to be already highly detailed and rich facades. The darker grey glazing has been removed and replaced with a light green tint glazing and champagne tint metal cladding that in our view will enhance the faceted expression on the York Street façade and offer a more sympathetic urban design response to the Moray Street façade. We are comforted by the architect's submission that these changes were supported and did not conflict with the overall design integrity of the architecture. We will require as a permit condition, that these materials and corner expression be included in our decision.

Does the development provide an acceptable ESD response?

1. The Applicant submitted that the proposal included a range of sustainable design features and achieves a Best Practice environmental design standard. Mr Talacko's assessment demonstrated that, in terms of performance outcomes, the development could achieve a 5-star Green Star & As Built rating and a 5-star NABERS energy rating.
2. The Tribunal was satisfied that this level of achievement was acceptable, however as we questioned the selection of dark grey tinted glazing and fixed windows (with no openings) as a design solution on the basis of

internal amenity (daylight) for occupants, they were discussed in the hearing. The interim order we issued requested that a revised glazing schedule be provided with a minimum visible light transmittance (VLT) of 40%. We also requested that the architects explore incorporating openable windows (particularly on the north façade) in our order, to provide natural ventilation to the internal spaces if practicable.

The amended façade design (of two options) both incorporated these measures. Mr Talacko's revised assessment found that with both these revised options, the development continued to achieve a 5-star Green Star rating. His analysis also found that the NABERS energy rating had risen to 6-stars, which in his opinion was a substantial improvement on the previous 5-star NABERS rating.

Mr Talacko stated that his analysis confirms that both options will now achieve an Australian Excellence standard in relation to ESD. Mr Talacko also stated that it must be noted that in order to achieve the NABERS and Green Star ratings, high performance double glazed units must be specified with a maximum system U-value of 2.5 and a solar heat gain coefficient (SHGC) of 0.23. In his opinion:

These performance values can be achieved by specifying a light grey tinted glass with a VLT of 40% ...Our analysis also indicates that substituting the grey glass with a green tinted glass which has an inherently higher ratio of light transmission to solar heat gain (for equivalent thermal properties) will result in improved internal daylight penetration within the office floor plates whilst maintaining the 6-star NABERS rating.

1. We accept the evidence of Mr Talacko and the architect's preference for the option of the green tinted glass and note that the development now achieves a higher than required benchmark in ESD terms due to the refinements of the façade treatment. We also accept Mr Talacko's evidence that the level of thermal performance achieved by the façade glazing system precludes the necessity for external shading devices.

1. The Tribunal raised concerns regarding the uppermost mezzanine level as having only stair access which would exclude access for people with disabilities. The Applicant provided written advice from DDA consultant Bernie Clifford of Before Compliance Pty Ltd who advised that:

A lift can be omitted dependant on that both Level 8 and Level 9 is a sole tenant and cannot be leased or sold separately without a lift service between level 8 and level 9.

1. The Tribunal finds that, as these matters are to be dealt with at the building permit stage and controlled under the requirements of the Building Code of Australia, there is sufficient reason to defer these matters until that time.

We also note that there are a number of alternate solutions and modifications available in the building permit regime to be assured that the development will satisfy the DDA.

1. Permission is required under clause 52.06 to reduce the number of car parking spaces provided in the development. The Council did not take issue with the car parking dispensation sought. The Council noted during the returned hearing that Amendment VC148 has changed the dispensation such that it is now less than initially required and sought.
2. A Green Travel Plan has been prepared by Ratio[14] for the Applicant, and Ratio has also prepared material that was submitted to the Council in relation to the proposed number of car parking spaces to be provided in the development, their layout and the access arrangements for vehicles entering and exiting the site and the likely traffic impact of the development.
3. Mindful of the site's location, zoning, availability of means of alternative transport (including bicycle parking) and time-controlled on-street parking, along with the Council's position regarding this matter, we find that the amount of car parking to be provided for the development is acceptable and the dispensation sought should be granted. Having regard to the material on the file, we are content that the traffic likely to be generated by the development will not unreasonably impact traffic flow within the area.

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

• Construction of a ten storey commercial building above one level of basement carpark, comprising a ground floor café and commercial display area and upper office floors and a reduction in the statutory car parking requirement.

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and an electronic copy must be provided. The plans must be generally in accordance with the VCAT amended plans dated 11 May 2018 being TP01 Rev. 2, TP02 and TP03 Rev. 3, TP04 Rev. 4, TP05 Rev 3, TP5.01 Rev.1, TP06-TP09 Rev. 3, TP10-17 Rev. 2 prepared by Hayball Pty Ltd but modified to show:
   • (a) Option 1 of the revised design adopted in accordance with Architectural Plans by Hayball dated 30 July 2018 to include:
     1. The Façade Map by Hayball Architects describing the corner condition to Moray and York streets;
     2. Glazing to the north façade to be of one type shown as GLO4 as light green tinted high performance double glazed units, with a minimum visible light transmittance of 40%, maximum system U-value of 2.5 and a solar heat gain coefficient (SHGC) of 0.23;
     3. The north façade to incorporate operable glazing elements to assist with passive ventilation strategies generally in accordance with TP14 by Hayball Architects;
     4. Glazing to all other facades to be type shown as GLO4 as light green tinted high performance double glazed units, with a minimum visible light transmittance of 40%, maximum system

U-value of 2.5 and a solar heat gain coefficient (SHGC) of 0.23; and

The east and west facades to incorporate operable glazing elements to assist with passive ventilation strategies generally in accordance with architectural drawings TP16 by Hayball Architects;

(b) External operable shading to the roof lights;

(c) The proposed location of Urban Art;

(d) A full schedule of materials, finishes and paint colours, including colour samples;

(e) All plant and equipment which are to be located externally; and

(f) A door in the south face of the café to the lobby zone to provide access to toilet facilities.

1. 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, unless the Port Phillip Planning Scheme exempts the need for a permit

1. All external materials, finishes and colours as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

1. Before the development starts (other than demolition or works to remediate contaminated land) an amended Sustainable Management Plan that outlines proposed sustainable design initiatives must be submitted to, be to the satisfaction of and approved by the Responsible Authority. The amended Sustainable Management Plan must be generally in accordance with the Sustainable Management Plan (6 June 2018) and the Option 1 Façade Deign (10 August 2018) both by Ark Resources. When approved, the Plan will be endorsed and will then form part of the permit and the project must incorporate the sustainable design initiatives listed

Incorporation of Sustainable Design initiatives

1. The project must incorporate the sustainable design initiatives listed in the endorsed Sustainable Management Plan to the satisfaction of the Responsible Authority.

Implementation of Sustainable Design Initiatives

1. Before the occupation of the development approved under this permit, a report from the author of the Sustainable Management Plan approved

pursuant to this permit, or similarly qualified person or company, must be submitted to the satisfaction of the Responsible Authority. The report must confirm that all measures and recommendations specified in the Sustainable Management Plan report have been implemented and/or incorporated in accordance with the approved report to the satisfaction of the Responsible Authority.

Site Management Water Sensitive Urban Design (larger Multi-Unit Developments)

1. The developer must ensure that:
   • (a) No water containing oil, foam, grease, scum or litter will be discharged to the stormwater drainage system from the site;
   • (b) All stored wastes are kept in designated areas or covered containers that prevent escape into the stormwater system;
   • (c) The amount of mud, dirt, sand, soil, clay or stones deposited by vehicles on the abutting roads is minimised when vehicles are leaving the site.
   • (d) No mud, dirt, sand, soil, clay or stones are washed into, or are allowed to enter the stormwater drainage system;
   • (e) The site is developed and managed to minimise the risks of stormwater pollution through the contamination of run-off by chemicals, sediments, animal wastes or gross pollutants in accordance with currently accepted best practice.

1. Prior to the occupation of the development, a warning light system must be installed to prevent conflicting vehicle movements along the narrowed section of the ramp. The warning light system must be installed and maintained to the satisfaction of the Responsible Authority.

Car Parking Stacker Maintenance and Provision

1. The mechanical car stackers are to be maintained in a good working order and be permanently available for the parking of vehicles in accordance with their purpose, to the satisfaction of the Responsible Authority.

1. Before the use commences three circular stainless steel bike racks must be installed at the cost of the applicant/owner on the adjacent public footpath on Moray Street in a location to the satisfaction of the Responsible Authority. Once the racks have been installed they will become a Council asset and the developer will have no further ongoing obligations or responsibilities regarding the racks.

1. The endorsed Green transport plan must be implemented to the satisfaction of the Responsible Authority.

1. Before the occupation of the development allowed by this permit, vehicle crossings must be constructed in accordance with Council's current Vehicle Crossing Guidelines and standard drawings to the satisfaction of the Responsible Authority. All redundant crossings must be removed and the footpath, naturestrip, kerb and road reinstated as necessary at the cost of the applicant/owner and to the satisfaction of the Responsible Authority.

1. Before the occupation of the development allowed by this permit, the applicant/owner must do the following things to the satisfaction of the Responsible Authority:
   • (a) Pay the costs of all alterations/reinstatement of Council and Public Authority assets necessary and required by such Authorities for the development.
   • (b) Obtain the prior written approval of the Council or other relevant Authority for such alterations/reinstatement.
   • (c) Comply with conditions (if any) required by the Council or other relevant Authorities in respect of alterations/reinstatement.

1. Before the development starts (other than demolition or works to remediate contaminated land), an amended Waste Management Plan based on the City of Port Phillip's Waste Management Plan Guidelines for Developments must be prepared by a Waste Management Engineer or Waste Management Planner to the satisfaction of the Responsible Authority and endorsed as part of this permit. Once submitted and approved, the waste management plan must be carried out to the satisfaction of the Responsible Authority.

1. The landscaping as shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the Responsible Authority before the occupation of the development and/or the commencement of the use or at such later date as is approved by the Responsible Authority in writing.

1. The landscaping as shown the endorsed Landscape Plan must be maintained, and any dead, diseased or damaged plant replaced in accordance with the landscaping plan to the satisfaction of the Responsible Authority.

1. Before the development starts, a Construction Management Plan must be submitted to, approved by and be to the satisfaction of the Responsible Authority. The Plan must include details of (but not be limited to):
   • (a) Construction hours;
   • (b) Control of construction noise to minimise impact on neighbouring properties;
   • (c) Maintaining cleanliness in abutting streets;
   • (d) Minimising disruption to pedestrian access along footpaths;
   • (e) Management of parking of construction worker vehicles (including construction machinery), management of site deliveries and traffic management;
   • (f) The waste removal process and duration, including the positions of trucks, equipment and rubbish bins, including the on-site storage of waste construction bins as much as practicable during the project's construction stages.

Once submitted and approved the works detailed by the Construction Management Plan must be carried out to the satisfaction of the Responsible Authority.

1. The minimum clearance to the underside of any projection over the footway surface in Moray and York streets must be 2.7 metres.

1. Before the occupation of the development allowed by this permit, all new or extended walls on or facing the boundary of adjoining properties and/or a laneway must be cleaned and finished to a uniform standard to the satisfaction of the Responsible Authority. Unpainted or unrendered masonry walls must have all excess mortar removed from the joints and face and all joints must be tooled or pointed also to the satisfaction of the Responsible Authority. Painted or rendered or bagged walls must be finished to a uniform standard to the satisfaction of the Responsible Authority.

1. Before the occupation of the development allowed by this permit, an urban art plan in accordance with Council's Urban Art Strategy must be submitted to the satisfaction of and approved by the Responsible Authority. The value of the urban art must be at least 0.5% of the total building cost of the development to the satisfaction of the Responsible Authority. Urban art in accordance with the approved plan must be installed prior to the occupation of the building to the satisfaction of the Responsible Authority.

1. This permit will expire if one of the following circumstances applies:
   • (a) The development is not started within two (2) years of the date of this permit.
   • (b) The development is not completed within two (2) years of the date of commencement of works.

The Responsible Authority may extend the periods referred to if a request is made in writing:

• before or within 6 months after the permit expiry date, where the use or development allowed by the permit has not yet started; and
• within 12 months after the permit expiry date, where the development allowed by the permit has lawfully started before the permit expires.

[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] See 244 Dorcas Street Pty Ltd v Port Phillip City Council [2013] VCAT 1487 at [16].

[4] We note that the overall building height at 31.3 metres is greater than this, but the 10th storey is stepped in from the York Street boundary, such that the street wall reaches 28.130 metres at its highest point on the north facade.

[6] Being Amendment C52 to the Port Phillip Planning Scheme.

[7] The examples given were of Schedules 12, 13 and 23 to the DDO.

[8] See, for instance, Gurner 278 Kings Way Pty Ltd v Port Phillip CC [2016] VCAT 28.

[9] Submissions on Behalf of the Applicant for Review at [48].

[10] Assuming a mandatory provision is equivalent to a mandatory requirement and noting that Planning Practice Note 59 also refers to the term "mandatory requirement", seemingly interchangeably.

[11] Department of Environment, Land, Water and Planning, dated June 2015.

[12] Although we acknowledge that DDO8 pre-dates Planning Practice Note 59.