Mr N J Tweedie of counsel appeared by direct brief. Mr Tweedie called Mr Lloyd Elliot, Town Planner, Mr John Kiriakidis, Traffic Engineer and Mr Mark Sheppard, Urban Designer to give evidence.

Mr J Glossop, Town Planner. Mr Glossop called Mr J Holdsworth, Urban Design to give evidence.

Mr P Masulans appeared for himself and Elisabeth Masulans, Charles Dougall, Jo Prior, Fiona Wyborn, Tim Hayes, Richard Young and Felicity Nabbs.

Mr Greg Shelley appeared for A Dalianis, Marie Fram, Michael Zavitsanos, Dana Falcini, Bernard Falcini, Jim Dollas & family and Nick Chiridis.

Messrs Garvan Long, James Merrett and Wayne Heywood appeared in person.

Six storey building with a basement car park for two shops and 40 dwellings above, accessed by a residential lobby on Lygon Street.

Five levels containing 40 dwellings are proposed above ground level, comprising 22 x 1 bedroom; 5 x 1 bedroom + study; and 13 x 2 bedroom.

Car parking at ground level and within a basement consisting 44 car spaces, 30 of which are independently accessible car stackers, is accessed off the rear laneway. Bicycle storage area for 20 bicycles, and amenities are located at ground level. The basement level also contains two separate storage areas and an area for 80 cubic metres of water storage.

Application under Section 79 of the Planning and Environment Act 1987.

Business 1 zone and Design and Development Overlay - Schedule 19 (DDO19). Lygon Street and half the rear ROW is also zoned Business 1. Land west of the ROW is zoned Residential.

Use of the land for dwellings under Clause 34.01-1, development of buildings and works under Clause 34.01-4 and development of buildings and works under clause 43.02.

Clauses 11, 14.02-3, 15.01, 15.02, 16.01, 17.01-1, 18.02-1, 21.04-2, 21.05-1, 21.05-3, 21.05-5, 21.05-9, 21.05-10, 22.02, 22.09, 22.11, 22.15, 52.06, 52.07, 52.34 and 65.

The subject site consists of three properties in an irregular shaped with a 27 m Lygon St frontage by 32.7m (northern) - 41.1m (southern) depth totalling 947m2 with a stepped western boundary (dog leg) to rear ROW. The Lygon St site sits between Stewart Street, Albion Street and a ROW separating dwellings on Stanley Street to the west.

2 and 27 December 2010 unaccompanied by representatives of the parties.

Carlos Constructions PL v Moreland CC [2005] VCAT 2718; Grange Development Group (GDG) PL v Moreland Planning Scheme P1877/2010 unreported 27 October 2010 per Bilston-McGillen and Chase, MM; Walsh Building Services PL v Darebin CC [2009] VCAT 1361 per Read M.

1. The developer reviews council's failure to support its application for a six storey building containing two shops and a residential lobby at ground level and 40 dwellings above in the Business 1 zone along Lygon Street Brunswick. While 44 car spaces are provided, a reduction of 62 car spaces is sought (this includes the shop areas). Rear residential neighbours support council's deemed refusal.
2. The building has an architectural style that rakes back at the fourth, fifth and sixth levels creating the effect of a mansard roof. To achieve this effect it employs a dramatically different built form for these upper three levels comprising steel linking beams, vitreous enamel and high performance solar glass curtain walls.
3. The six storey 20-metre high building includes a podium level of three storeys (11.335 metres high) and three levels above with the following setbacks from Lygon Street:
   1. 2.7 metre fourth level setbacks (with two small 1.8m protrusions)
   2. 6.2 metre fifth level setback (with two small 4.465m protrusions)
   3. 6.9 metre sixth level setback to the balustrade but 9.645m setback to the façade or wall of this sixth level.
4. At the immediate rear of the site there is a varying 3.5 - 4.5m wide dog-leg shaped laneway running between the site and single storey dwellings in the residential zone fronting Stanley Street.
5. The key questions for determination are the sixth level of the building at a height of 20m given DDO19's preferred 18m height limit; the podium setback; the development's impact on the amenity of neighbouring dwellings to its rear and internal amenity for proposed residents. Traffic circulation and the building's future impact to the north and south are minor issues.
6. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Moreland Planning Scheme, I have decided to uphold the review and direct the grant of a permit. My reasons follow.

1. An explosion of development in the form of multi storey shop top apartment buildings is beginning to occur along and to the rear of the Lygon Street Brunswick spine ('Lygon spine') from Brunswick Road to Albion Street. Existing or permitted built form examples are:
   1. The preferred 25 m or 7 storey high development on the former Spicer factory at the corner of Lygon with Brunswick Street abutting the linear park[2] - although I was advised a planning application has been lodged seeking 9 storeys;
   2. The five-storey apartment building on the corner of Lygon and Pitt Street[3];
   3. The eight storey shop top apartment La Strada[4] building on the corner of Lygon and Albert Street;
   4. The eleven storey shop top apartment Carlos[5] building on Lygon between Albert and Victoria Streets;
   5. The ten storey shop top apartment Metaxas[6] building on Lygon between Albert and Victoria Streets;
   6. The five storey 'Equus' shop top apartment building between Blythe and Victoria Streets[7];
   7. The five storey shop top apartment building between Stewart and Queen Streets[8].
2. This is an area clearly in transition with shop top apartments about to reinvigorate a rundown shopping strip with life and activity, as residents return to live in what was a run down area with a depleted population[9]. This explosion that has, in part, led to DDO19 for this part of the Lygon spine, which I discuss later.

1. Council made the point that in a "character" sense the site has to serve two masters because the surrounding area has two very distinct characteristics. There is the Lygon Street commercial precinct ('Lygon spine') which although still predominantly single and two storey shops, is establishing taller buildings, particularly to the south.
2. As council admitted at the hearing, many Lygon spine sites are underutilised and the area has considerable development potential.
3. To the rear of the site on Stanley Street is a completely different character. It contains predominantly single storey detached dwellings with open rear yards and a strong landscape character.

1. The subject site comprises two large single storey brick shops of 100% site coverage. At the immediate rear of the site there is a varying 3.5 - 4.5m wide dog-leg shaped laneway running between the proposed basement car park and single storey dwellings fronting Stanley Street.
2. The site enjoys excellent public transport including the Lygon Street tram, Albion Street bus 180 m to the north, Blyth Street bus 300m to the south and the Anstey Railway Station 1.5km away.
3. Most buildings along this section of the Lygon spine are single storey; with the Cyprus Club approximately 3 storeys and the Lyndhurst Club Hotel 4 storeys (3 storey Victorian) to the north.
4. To the south are single or double storey shops with a modern three storey shop with dwellings above, near the corner of Stewart Street.
5. To the south again are the sites described above under 'General site context' interspersed between lower bulky commercial and industrial buildings.

1. It is important to note that vehicular ingress is denied from Lygon and Stewart Streets into Stanley Street, so vehicles wishing to enter Stanley Street must enter from Albion Street to the north. This discourages non-residential parking in Stanley Street.
2. Stanley Street comprises single storey detached dwellings. Their backyards overlook the rear of the subject site with clear views to open sky overlooking the rear of shops, various roof top protrusions and equipment.
3. Mr Merrett at no. 6 does have vehicular access off the ROW. He has space in his backyard to plant trees to screen views. Because of the dog-leg in the laneway, the northwest portion of the development moves away from his view altogether.
4. Zavitzanos at no. 8 is located directly across the laneway from the southern half of the development at 457 Lygon Street. A double garage is located between the dwelling and the rear boundary fence, occupying a substantial portion of the rear open space to the east of the dwelling. Because Zavitzanos has garage access off the ROW and a fully concreted rear yard there is no ability to plants trees to soften the impact of the development. The perimeter vegetable patch might hold pittosporum shrubs. This development will remove clear views to sky across the ROW and they already have clear views to the 3-storey flats at 447 Lygon. Diagonal views from balconies or windows will need to be screened.
5. Oldfields at No. 10 enjoy clear views to sky across the ROW which this development will remove. Their elevated decked outdoor eating area will not be affected by overlooking because it is screened by their own pergola and vine. The southwest corner of development is screened from view by their tree and storage shed. There will be clear views into garden from the northwest edge of development. From their indoor eating area, they will have very shielded views to the bulk of the development because of an overhanging vine over their roof eave.
6. Hayes & Wyborn at no. 12 are setback 10m from the rear boundary of the property. They enjoy clear views to sky across the ROW which this development will remove. They have no car access to the ROW. They tend a beautiful backyard including vegetable patch with room to plant canopy trees to further soften any impact of bulk. Close neighbors are shielded by Hayes & Wyborn' trees.
7. The Masulans at no. 14 have clear views towards rear air conditioning units, plant and equipment at the rear of 1-2 storey Lygon shops. Their elevated decked outdoor eating area will not be affected by overlooking but they will clearly experience the visual bulk of the development. The Masulans do not park off the ROW, although they have a paved gated area plus roller door to a garage. Because of this garage they cannot plant trees to soften the development.

1. There are numerous relevant State, metropolitan and local planning policies that apply. Clause 16.01-3 identifies strategic redevelopment sites for large residential development in Metropolitan Melbourne, such as in Major Activity Centers and along tram and train lines that are part of the Principal Public Transport Network. This site fits the bill.
2. Amendment VC75 gazetted on 16 December 2010 has not altered any of this strategic state-wide policy, although it has deleted the reference to Melbourne @ 5 Million.
3. Relevant local policies are Clause 22.02 (Development within Designated Activity Centres and Urban Villages), Clause 22.15 (Brunswick Activity Centre) and particularly local policy at Clause 22.11-1 (Development above four or more storeys) which encourages increased land use densities close to tram or train services and within urban villages and activity centres. This site is one such activity centre; the Brunswick Activity Centre.
4. Decision guidelines for the Business 1 zone require me to consider the interface and relationship with residential areas.
5. Clauses 22.02 and Clause 22.15 require me to take Structure Plans into account. The site is affected by Design and Development Overlay - Schedule 19 (DDO19) which is known as the "Interim[10] Brunswick Major Activity Centre Height Limit Area - Lygon Street" and which has the sole design objective:

To ensure that the height and form of new development is compatible with[11] the Brunswick Structure Plan.

1. DDO Schedule 19 was gazetted into the planning scheme by Amendment C105 on 23 September 2010 and expires one year later. The schedule to the overlay specifies different height and setback-above-podium controls along various sections of the Lygon Brunswick spine. I note that the different heights for different sections of the spine bear little relationship to existing or proposed developments permitted over the last five years. For example, seven storeys are specified for a node containing or with permits for ten and eleven storeys.
2. On the subject site a maximum height of 18 metres (5 storeys) is specified. Schedule 19 operates in such a way that no permit is required for a building up to that height but a permit is needed beyond that height. Additionally, if the podium of the building is a maximum of 11 metres (3 storeys) with the upper floors setback from the frontage by 7m, no permit is required. The three numerical components of the overlay are 5 storey overall height, 3 storey street wall and 7 metre setback above podium.
3. It is within this context that I assess this proposal. It anticipates five storey future built form at a minimum. I disagree with Mr Holdsworth's contrary opinion that Schedule 19 means that no building can exceed 18 metres.
4. If a building exceeds the above three provisions in the overlay then it needs a permit under DDO19. Any permit application would then activate consideration of the decision guidelines which are:
   1. The Brunswick Structure Plan;
   2. Whether the site is identified as a landmark site in the Brunswick Structure Plan;
   3. The extent to which any application demonstrates exemplary architectural design, and best practice environmental sustainable design.
5. It was agreed by all expert witnesses that the site is not identified as a landmark site in the Brunswick Structure Plan and does not demonstrate exemplary architectural design and best practice environmental sustainable design. That leaves the Brunswick Structure Plan.
6. The reference document mentioned in the clause 4 of Schedule 19 is the "Draft Brunswick Structure Plan 2008" which was adopted by council in October 2008, although the hearing revealed that in August 2010 council adopted a 2010 version of the Draft Structure Plan.
7. There are also relevant particular provisions to consider especially Clause 52.06 (Car Parking), Clause 52.07 (Loading and Unloading) and Clause 52.34 (Bicyles).

Should the setback above podium and overall height be made to strictly comply with the DDO19 envelope?

1. The six storey 20-metre high building includes a podium level of three storeys (11.335 metres high). No one was troubled by this 30cm exceedance in podium height.
2. The raking setbacks[12] of the fourth, fifth and sixth levels above are:
   1. 2.7 metre fourth level setbacks (with two small 1.8m protrusions)
   2. 6.2 metre fifth level setback (with two small 4.465m protrusions)
   3. 6.9 metre sixth level setback to the balustrade but 9.645m setback to the façade or wall of this sixth level.
3. Given the intent of the Schedule 19 Built Form diagrams for there to be a strong 7m break between the podium and upper levels, the upper levels were criticised for not being sufficiently subservient to the three podium levels, thus not creating a distinct break between the podium and upper levels.
4. Additionally, upper floors boast a number of add-on elements, such as steel linking beams or frames and raked glass walls which are criticised as blending the building into one form, inconsistent with the objectives to create a distinct break with the upper levels.
5. Analysing the above criticisms, I have formed the opinion that the development should not be made to strictly comply with the DDO19 envelope for the following reasons. Firstly, the Structure Plan is an interim control, and as seen above, is fluid and can be updated from time to time. Secondly, its objective is to ensure compatibility, not precision, with the Structure Plan; to ensure the Lygon spine or axis is developed in a coherent manner.
6. I follow the weight to be given the Brunswick Structure Plan as expressed by the Tribunal in Grange[13] and in Walsh[14]. Being a reference, not an incorporated, document in the Planning scheme, it should not displace planning policies expressed in the scheme. It has not, as yet been tested by an independent Planning Panel. The Brunswick Structure Plan provides background information explaining the context within which a particular policy or provision has been framed. It is designed to guide, not dictate, decision making.
7. I find these raking back six levels a respectful mediation between the harder core ten and eleven storey high walls in section 2.4 of the Structure Plan and Albion Street and therefore compatible with the Structure Plan.
8. There are many different ways to create a break between a podium and upper levels. The building's pseudo-mansard shape for the upper three levels, raking back from the podium below, clearly distinguishes the upper three levels from the podium levels below. The dark coloured mansard form also contrasts and distinguishes it from the lighter coloured podium levels. It is my opinion that its receding raking form makes it acceptably compliant with the Structure Plan.
9. Despite the fact that the fourth level setback of this proposed building is mainly 2.7 metres instead of 7 metres, 3-D images illustrate it is only a shallow component of the building's upper levels which are then setback 6.2 metre and 9.645 m respectively. That 9.645 m setback to Lygon Street significantly minimises the impact of the non-compliant sixth level, centring it within the building.
10. Another criticism is that the podium presents a very 'frame-like' façade to the street that does not do justice to the area's existing character. But the character of this area is already changing, there is no heritage overlay protecting a particular style or character and DDO19 does not pass judgement on podium style, just its height. In fact, DDO19 envisages a new style and character for the Lygon spine.
    1. The broken-up verandah was criticised for not providing any functional benefit but I see it as providing, as well as distinguishing, a sense of entry to the wide residential lobby component of the development.
    2. The broken-up verandah was also criticised for not fitting in with the generally simple, but strong, continuity of verandahs along the retail strip which is part of the character and adds to the sense of horizontality on the street. I can see this point of view, but would not eschew this different architectural approach.
    3. On balance, there are a significant number of reasons to depart slightly from the schedule and allow one more level given the site's excellent location in an urban village and major activity centre, along excellent transport corridors where higher density housing is encouraged. This sort of development will add life and vibrancy to the Lygon/Albion urban village and support existing shops.

Does the development compromise amenity of rear neighbours?

1. Most objectors opposed the development because of its failure to comply with the Structure Plan and because of its overbearing impacts on their residential amenity especially by way of bulk, height, scale, massing, overshadowing, overlooking and inadequate car parking.
2. Directly affected Stanley Street neighbours are nos. 8 (Zavitsanos) & 10 (Oldfield) with nos. 12 (Hayes & Wyborn) 14 (Masulens) and 6 (Merrett) diagonally affected. Mr Masulens illustrated the considerable impact of the six storey building from Stanley Street.
3. But even if the Structure Plan envelope were complied with, the impact of a five storey building on rear residents instructs the decision making context. And it must be said that DDO19 sets a Lygon spine height that reflects council's desire for a new built form in this vicinity, given the site's location in a major activity centre.
4. Firstly, according to Map 1 of Schedule 19, the five storey envelope expected along Lygon Street, continues all the way back to the rear ROW. That being the case, rear residents must expect to see a tall building from Stanley Street as well as from their backyards, even if the proposal were five instead of six storeys. Given the width of the subject land, that will also result in a bulky building, although most objectors will only see a portion of the building as it moves around the dog-leg in the laneway.
5. Secondly, the sixth level is well centred in the building, with the northern half set back 9.815 metres from the title boundary and 13.415 metres from Oldfield at no. 10 and the southern half set back 18.45 metres from Zavitsanos at no.8.
6. Thirdly, no rear numerical setback is nominated in DDO19 for the rear interface, contrary to how council handled the Coburg activity centre.
7. Even though the Rescode Standard B17 setback guidelines to not apply to buildings over 4 storeys, Mr Sheppard's setback envelope indicates that, expect for the steel linking beam and some of the vitreous glass curtain wall with mullions, the building comes close to conforming, indicating that it does not loom over its rear neighbours.
8. In the final analysis, neighbours who are able will have to plant canopy trees in their backyards to soften the impact of the new building.
9. Shadow diagrams prove that the proposal has no overshadowing impacts to the open space of the dwellings to the west by 10.00am during the equinox.

1. As for overlooking, there is no doubt that the proximity of the building to residents across the ROW would be disconcerting from the perspective of invasion of backyard privacy. The overlooking prevention screens are primarily directed to prevent overlooking the balconies of the apartments below, within the building, not neighbours across the laneway.
2. To that end, I have increased overlooking prevention measures as reflected in the conditions. I record that despite Mr Tweedie's opposition, Mr Sheppard confirmed that the developer acceded to 1.7m high balcony screens for the lower levels.

1. On balance, the cross-flow ventilation criticism does not warrant rejection of the development. Cross-flow ventilation cannot be provided for all units in a development that achieves Melbourne 2030. Whereas corner apartments comply, only the central spine of apartments does not comply.
2. What is overlooked is the fact that no units require borrowed light or ventilation, a big plus for this development.

Is traffic circulation and access to the rear car park acceptable?

1. The development was criticised for relying on a ROW with a dog-leg, preventing clear sightlines from the south in the event the lane was blocked. But approaching from the south, clear sightlines exist for entry to the basement component of the car park. Approaching the site from the north (Albion Street) winding ones way along the ROW abutting the Hotel and its bottle shop, clear sightlines also exist for entry to the ground level car park.

Do any other matters warrant rejection of the proposal?

1. As for overshadowing any new development to its south - that is a function of the building envelopes anticipated by DDO19 to achieve Melbourne 2030 housing needs and public transport utilisation. Planning for any new development to its north and south will have to respond to this building. Windows and decks have been designed to achieve this and the adjoining buildings would mirror these setbacks.
2. Given the site's position on a tram line near buses and a train station, adequate parking is supplied for the development.
3. I agree with the criticism that there should be in-built provision for service ducts such as exhaust risers for the bin room and ventilation for odour in the event shops are used for food and drink premises, rather than post-factum provision. I have addressed this by permit conditions.
4. I agree that loading and unloading can be reasonably accommodated from Lygon Street.

1. A number of other matters about permit conditions were raised by the parties. With respect to those matters, other than those already addressed above, I summarise my conclusions as follows.
2. As to the height of stackers providing for 4WD vehicles, I adopt Mr Kiriakidis' evidence that such owners need to negotiate a non-stacked car space, and 3.25m basement height is adequate for the stackers.
3. I have adopted the standard for environmentally sustainable design as expressed in the Grange[15] decision.
4. I have accepted Disability Access Plan prepared by Blythe Sanderson Group dated 29 April 2010.

1. The site is well located in the Brunswick Major Activity Centre on the Principal Public Transport Network providing access along Lygon Street with convenient public transport access to the Melbourne Central Activities District. Being in an area highlighted by planning policy for future change, its height is consistent with the built form expectations for this area, and contributes in a reasonable manner to the preferred character of this area as contemplated by policy and DDO19.
2. Its provides adequate podium setbacks in that it differentiates between the street wall and upper levels by means of its mansard architectural form and colour contrast. It is a development that provides good internal amenity for future residents.
3. Although it will certainly be a dramatically different scale to that currently appreciated by the rear neighbours in the residential zone, its bulk is consistent with the built form expectations in DDO19. Additional overlooking conditions ensure it will not result in any unreasonable amenity impacts on the adjoining properties.
4. The decision of the responsible authority will be set aside and a permit subject to conditions directed to be issued.

The permit will allow use and development of the land for a six storey building with basement car park, shops, 40 dwellings, a reduction in the standard car parking requirement and a waiver of the loading bay requirement generally in accordance with the endorsed plans and subject to the conditions contained in Appendix 1 to these reasons.

1. Before the use or development commences, 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 three copies must be provided. The plans must be generally in accordance with the plans by D'Orio Architects Pty Ltd, Sheets TPO1-TP17 (inclusive), VCAT Revision (Plot date 26 October 2010), but modified to show:

1. Cooking odour exhaust measures for the shops and refuse odour exhaust measures for the bin room must be incorporated into the plans and must not exhaust out to any existing or future residential neighbours; 2. Each dwelling provided with 6m³ of storage external to the dwelling.

1. The car park to have a floor to ceiling height of 3.25m and each car stacker designed to contain a standard 1.50m high vehicle.

1. The columns in the car park are to be placed in accordance with the Australian & New Zealand Standard for Off-Street Parking (AS/NZS2890.1), which includes: 1. no portion of the column to be inside the car parking space; and 2. placed between points 0.25 and 1.25 metres from the aisle. 2. The location of any substation required by the power company for this development. Any substation must be incorporated within the building (i.e. not free standing or pole mounted in the street) to ensure minimal impact on the visual amenity of the public realm. 3. A schedule of all proposed exterior decorations, materials, finishes and colours, including colour samples (3 copies in a form that can be endorsed and filed). 4. Bicycle parking areas dimensioned in accordance with the specifications of Bicycle Victoria's Bicycle Parking Handbook. 5. Full length windows for the bedroom windows of apartments 6, 9, 34 & 35. 6. Obscure glass screens 1.7m above finished floor level to all sides of the balconies to Apartments 4, 5, 6, 15, 16, 17. 7. Obscure glass 1.7m above finished floor level to the west facing windows of Apartments 6, 15. 8. Increased screening measures for the west facing apartments on the third and fourth floors by increasing the height of the overlooking prevention ledge from 1200mm to 1350mm and increasing the width of its shelf from 450mm to 600mm.

1. Obscure glass screens 1.7m above finished floor level to the north and south sides of the balconies to Apartments 24, 26, 32 and 34.

1. Obscure glass screens 1.7m above finished floor level below for the following apartments with the potential for internal overlooking of balconies: 1. The balconies between apartments 15 and 16 and between apartments 25 & 26; 2. The balcony of apartment 17 looking north towards apartment 16 (if not already required by another condition); 3. The bedroom of apartment 17 looking towards the balcony of apartment 18; 4. Bedroom 1 of apartment 20 looking towards the balcony of apartment 19; 5. The downward view from the bedroom to apartment 40 to the balcony of apartment 35; 6. The downward view from the kitchen to apartment 39 to the balcony of apartment 35. 2. Any consequent changes required by the Access plan endorsed pursuant to Condition 2 of this permit. 3. Any consequent changes required by Condition 3 of this permit. 4. Any design details or modifications to the plans arising from the recommendations of the Acoustic report in accordance with Condition 6 of this permit.

1. The Access Plan prepared by Blythe Sanderson Group dated 29 April 2010 and associated notated plans must be endorsed to form part of this permit.
2. Prior to the endorsement of plans, the Sustainability Statement/ Environmentally Sustainable Development (ESD) Management Plan prepared by Ark Resources submitted to Council on May 2010 must be amended to relate to the modified plans, without limiting the scope of features and initiatives, to the satisfaction of the responsible authority.

When submitted and approved to the satisfaction of the responsible authority, the amended Sustainability Statement/Environmentally Sustainable Development (ESD) Management Plan and associated notated plans will form part of this permit.

The recommendations of the plan must be incorporated into the design and layout of the development and must be implemented to the satisfaction of the responsible authority prior to the occupation of the development.

1. All works must be undertaken in accordance with the endorsed Sustainability Statement/Environmentally Sustainable Development (ESD) Management Plan to the satisfaction of the responsible authority. No alterations to the Sustainability Statement/ESD Management Plan may occur without written consent of the responsible authority.
2. Prior to the occupation of the development approved under this permit a report from the author of the endorsed Sustainability Statement/ Environmentally Sustainable Development (ESD) 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 Statement/Environmentally Sustainable Development (ESD) Management Plan have been implemented in accordance with the approved Plan.

1. Prior to the commencement of the development approved by this permit, a report prepared by a qualified Acoustic Engineer must be submitted to the satisfaction of the responsible authority outlining specific noise attenuation measures to ensure the building includes noise attenuation measures to minimise the impact of noise from the adjacent arterial road and tram route as well as possible use of the ground floor shops as food and drink premises. Construction and maintenance of the buildings must be in accordance with the recommendations contained in this report to the satisfaction of the responsible authority.

1. a) All waste must be collected from Lygon Street.
   1. The Waste Management Plan prepared by Leigh Design Pty Ltd dated 20 April 2010 must be endorsed as forming part of this permit and must be implemented and complied with at all times to the satisfaction of the responsible authority unless amended with the further written approval of the responsible authority.
2. All waste/recycling areas and stores must be provided with ventilation in accordance with Australian Standard AS1668.

1. The car parking spaces provided on the land must be solely associated with the development allowed by this permit and must not be subdivided or sold separately from the development for any reason.

1. The development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.
2. All pedestrian paths and access lanes shown on the endorsed plans must be constructed and maintained to the satisfaction of the responsible authority.
3. All telecommunications and power connections (where by means of a cable) and associated infrastructure to the land must be underground to the satisfaction of the responsible authority.
4. A mailbox, with separate aperture for newspapers and other non-mail articles must be provided for each of the premises at the street frontage. The mailbox dimensions, placement and numbering must comply with the Australia Post - General Post Guide 2004 (Point G4.3) as published on its website to the satisfaction of the responsible authority.
5. Prior to the occupation of the development, all boundary walls must be constructed, cleaned and finished to the satisfaction of the responsible authority.
6. Unless with the prior written consent of the responsible authority, any plumbing pipe, ducting and plant equipment other than external guttering or associated rainwater down pipes must be concealed from external views.
7. Bicycle facilities must be installed in accordance with the specifications in Bicycle Victoria's Bicycle Parking Handbook, to the satisfaction of the responsible authority.
8. Bicycle signage at least 300mm wide and 450mm high showing a white bicycle on a blue background must be erected at the entrances to residential foyer and the shops directing cyclists to the location of the bicycle parking as required by Clause 52.34-5 of the Moreland Planning Scheme.
9. Prior to the occupation of the development, all visual screening measures shown on the endorsed plans must be installed to the satisfaction of the responsible authority. All visual screening and measures to prevent overlooking must be maintained to the satisfaction of the responsible authority. Any screening measure that is removed or unsatisfactorily maintained must be replaced to the satisfaction of the responsible authority.
10. Air-conditioning and other plant and generator equipment must be screened from the view of adjoining properties and the street to the satisfaction of the responsible authority.

1. No portion of the building is to project into the road reserve to the satisfaction of the responsible authority.
2. Prior to the occupation of the development, access to the site, any vehicle crossover and any ancillary road and road drainage works must be constructed in accordance with any requirement the responsible authority.
3. Prior to the occupation of the development, any Council or service authority pole or pit within 1 metre of a proposed vehicle crossing must be relocated or modified at the expense of the permit holder to the satisfaction of the responsible authority and the relevant service authority.
4. The area set aside for the parking of vehicles and access lanes shown on the endorsed plan must to the satisfaction of the responsible authority:

1. Be completed prior to the occupation of the development. 2. Be maintained.

1. Be properly formed to such levels that it can be used according to the endorsed plan.

1. Be drained and surfaced. 2. Have the boundaries of all vehicle parking spaces clearly marked on the ground to accord with the endorsed plan. 3. Not be used for any other purpose other than the parking of vehicles.
2. Prior to the occupation of the development, the car park entry door must be automatically remote controlled.

1. The entry into the basement car park needs to be provided with a 50mm lip to reduce the opportunity for stormwater to flow from the right-of-way into the basement.
2. All stormwater from the land, where it is not collected in rainwater tanks for reuse, must be collected by an underground pipe drain approved by and to the satisfaction of the responsible authority.
3. Prior to the commencement of the development, a legal point of discharge is to be obtained, and where required, a stormwater drainage plan showing how the site will be drained from the property boundary to the stated point of discharge, must be submitted to and approved by the responsible authority.

1. This permit will expire if one of the following circumstances applies:
   • the development is not commenced within three (3) years from the date of issue of this permit;
   • the development is not completed within five (5) years from the date of issue of this permit;
   • the use is not commenced within five (5) years from the date of issue of this permit.

The responsible authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

[1] In accordance with Section 4 (2) (d) of the Victorian Civil and Administrative Tribunal Act 1998 a failure to make a decision is deemed to be a decision to refuse the application.

[2] which went through a planning panel process culminating in DDO11 to the Moreland Planning Scheme

[4] 240 Lygon Street La Strada Investments PL v Moreland CC [2010] VCAT 1274

[5] 304-310 Lygon Street Carlos Constructions PL v Moreland CC [2005] VCAT 2718

[6] 326 -350 Lygon Street Metaxas Architects (for Carlos Constructions PL) v Moreland CC [2004] VCAT 1752

[9] Carlos Constructions PL v Moreland CC [2005] VCAT 2718 @ para 55 per Gibson DP & O'Leary, M

[13] Grange Development Group (GDG) PL v Moreland Planning Scheme P1877/2010 unreported 27 October 2010 per Bilston-McGillen and Chase, MM

[14] Walsh Building Services PL v Darebin CC [2009] VCAT 1361 per Read M.

[15] Grange Development Group (GDG) PL v Moreland Planning Scheme P1877/2010 unreported 27 October 2010 per Bilston-McGillen and Chase, MM