1. Based on the material before me, the issues which are key to my determination of the matter are:
   • Is the proposal an appropriate response to its strategic policy and built form context?
   • Will the proposal provide acceptable internal amenity?
   • Does the proposal give rise to unacceptable external amenity outcomes?
   • Will the proposal allow equitable development outcomes on adjoining sites?

Relevance of the 2015 Tribunal decision to my determination of the key issues

1. The 2015 Tribunal decision is of relevance to my consideration of the key issues before me and is something which I have considered. However, I am not bound by that decision and must determine the matter before me afresh.
2. As I explain below, there have been significant changes to the planning policy context and the design of the proposal since the time of the 2015 Tribunal decision. Applying the principles outlined in previous cases which have considered instances where there have been repeated appeals in relation to the same site,[3] changes such as these are matters which may warrant me reaching a different conclusion to that of the 2015 Tribunal decision.
3. Below, I discuss the implications of these changes as they relate to the key issues.

IS THE PROPOSAL AN APPROPRIATE RESPONSE TO ITS STRATEGIC POLICY AND BUILT FORM CONTEXT?

1. The site is located on the western side of Plenty Road, between its intersections with Tyler Street to the north, and Hawker Avenue, to the south.
2. It is located within the Tyler Street activity centre, which as discussed below, is recognised as a neighbourhood activity centre in the scheme.
3. There is a tram service which runs along Plenty Road in front of the site. This means that the site is in immediate proximity to the Principal Public Transport Network (PPTN) as identified in the PPTN Area Maps (State Government of Victoria, August 2018) which are an incorporated document in the scheme.
4. To the north of the site, along Plenty Road, are a number of existing shops and commercial buildings, which are generally on narrower sites and of two storeys in height.
5. To the immediate south of the site, also fronting Plenty Road, is a site which is a similar size to the site. It is currently developed with a single storey building comprising a shop front with a dwelling behind. I was advised at the Tribunal hearing that there is an intention for the redevelopment of this site with an apartment development of a design which largely mirrors the proposal before me.
6. Further to the south, on the corner of Plenty Road and Hawker Avenue is an older style two storey mixed use development containing a number of flats as well as some commercial tenancies fronting Plenty Road.
7. On the other side of Plenty Road, opposite the site, are other commercial developments and a church, also generally of a one or two storey scale.
8. The rear of the site abuts a conventional residential area, which as I explain below, is identified in the scheme as an area of 'incremental housing change'. The site's rear boundary comprises part of the rear side boundary of No. 237 Tyler Street, and part of the rear side boundary of No. 2 Hawker Avenue. Both No. 237 Tyler Street and No. 2 Hawker Avenue are developed with detached single houses. The secluded private open space of these dwellings abuts the part of their boundary that they share with the site.
9. The easement which provides vehicle access to the site from Hawker Avenue, runs along the rest of the side boundary of No. 2 Hawker Avenue, in between No. 2 Hawker Avenue and the commercial/residential developments to the south of the site which front Plenty Road.

1. When the Tribunal considered the previous proposal for the site in 2015, elements of the strategic policy context relating to the site were similar to their current form. For example, the site was and remains in a Commercial 1 Zone (C1Z). There was also some strategic policy support in 2015 for a higher density development on the site.
2. However, there have also been a range of substantial and smaller amendments to the scheme since the 2015 Tribunal decision. These amendments have changed the overall strategic planning policy context to a significant degree. There was no real dispute between the parties that the strategic policy context relating to the site is now significantly different to that considered by the Tribunal when assessing the previous proposal for the site.
3. One of the main changes is the application of a Design and Development Overlay, Schedule 17 (DDO17) to the site and other areas designated for substantial change. The intention for DDO17 to be applied to the land was known at the time of the 2015 Tribunal decision, however its form was uncertain. This lead to the Tribunal finding that it could give it limited weight.[4]
4. DDO17 now applies to land along the Plenty Road corridor and aims to support and guide urban redevelopment to achieve higher residential densities along that corridor. It sets out design objectives for the corridor, as well as building envelope requirements, building design requirements and access/parking requirements.
5. The building envelope requirements relevant to the site, in summary, include:
   • Minimum frontage width for land in the C1Z should be 15 metres.
   • A mandatory maximum building height of 6 storeys (which DDO17 defines to equate to 20 metres) for the part of the Murray Road to Albert Street precinct which includes the site.
   • Zero front setback for sites in C1Z for the first four storeys. Boundary to boundary development toward the frontage and alongside boundaries is encouraged for this site, as it is in an area which clause 6.0 designates for active frontages. Higher storeys should be setback from the front and side boundaries at an adequate distance to create a separation from the lower and upper parts of the building.
   • Rear setback of 3 metres at ground level, 5.5 metres at first floor level and other upper levels contained within a 45 degree setback envelope.
   • Detailed site layout conditions, which encourage orientation of dwellings toward front and rear boundaries, internal courtyards on deeper sites, setting back of upper levels to allow good daylight access to lower levels, use of light courts for secluded private open space and, design and siting so that adjacent lots can be developed in a similar manner creating a cumulative development pattern that has a consistent street edge condition, mid-lot separation of built form and/or light court locations and side setbacks as described in the schedule.
   • For the site, in a C1Z, a maximum site coverage of 100%, permeability of 0% and 100% of the length of the side boundary able to be developed with walls on boundary.
6. Another key change since the 2015 Tribunal decision is the introduction of clause 58 into the scheme. This clause now applies to the proposal and provides specific guidance on the design of apartment developments. It includes a number of objectives which must be achieved by the proposal, including objectives relating to the response of apartment developments to their urban context and to their internal amenity.
7. There are also a range of policies in the scheme which are relevant to the proposal, some of which have been altered since the 2015 Tribunal decision. Relevant policies include a number of clauses (e.g. clauses 11.01-1S and 11.03-1R) in the Planning Policy Framework which seek to provide for housing growth and diversity in appropriate locations which are well serviced.
8. These clauses are built upon by local policies, such as the Strategic Housing Framework Plan at clause 21.03-1 which identify the Tyler Street activity centre and the Plenty Road corridor as a place to accommodate a mix of commercial and higher density residential development. At the time of the 2015 Tribunal decision, this clause was a draft which was being considered as part of Amendment C138 to the scheme. Amendment C138 has now been finalised and the final form of clause 21.03 and other revised clauses of the municipal strategic statement are included in the scheme.
9. The Strategic Housing Framework Plan now in clause 21.03 of the scheme identifies the site and other land along Plenty Road as being within a 'substantial housing change area', while land to the west of the site, along Hawker and Tyler Avenue is shown as being within an 'incremental housing change area'.
10. Clause 21.03 provides the following about substantial housing change areas:

Residential, commercial and designated activity centres that have the capacity to accommodate substantial residential development over time. Substantial Change Areas will support increased residential densities and increased housing diversity. It is expected that the character of these areas will change substantially in the future. Substantial Change Areas generally display one or more of the following characteristics:

• Have an evolving character where there is an eclectic mix of new and old forms of architectural style and housing typologies. This includes more recent apartment developments at higher densities and in mixed-use formats.
• Are identified locations for increased residential densities to support economic investment and growth in the La Trobe National Employment Cluster.
• Are within or immediately adjacent to activity centres that possess superior access to the Principal Public Transport Network.
• Have a frontage to a strategic corridor.
• Are generally within 400 metres of a train station or tram route.

The scale and intensity of residential growth will differ across Substantial Change Areas depending on their strategic capacity to accommodate municipal growth and future housing needs as described at Clause 21.01-6. Generally, residential growth in Darebin adheres to the following hierarchy:

• Preston Central and Northland East Preston Activity Centres
• Reservoir and Northcote Activity Centres
• Neighbourhood Centres
• Strategic Corridors including Plenty Road and St Georges Road
• Other substantial change areas as identified in the Strategic Housing Framework Plan.

1. The above hierarchy places the Tyler Street neighbourhood centre as a third-tier area, within the broader fourth tier area of the Plenty Road corridor. The Tyler Street neighbourhood centre is also now expressly recognised as a neighbourhood activity centre in clause 21.04 of the scheme in the Strategic Economic Development Framework Plan contained in that clause. This clarifies the status of this activity centre compared with the situation at the time of the 2015 Tribunal decision.
2. Clause 21.03 also contains the following objectives relating to housing:
   • Objective 1 - Housing Provision: To facilitate housing development that has an appropriate scale and intensity in locations across the municipality
   • Objective 2 - Housing Density: To achieve higher density housing outcomes in identified locations to accommodate Darebin's projected population growth.
   • Objective 3 - Residential Amenity: To facilitate residential and mixed use developments that display a high standard of design, limit off-site amenity impacts and provide appropriate internal amenity for residents.
3. Strategies to achieve these objectives are also set out in clause 21.03 and include those which discourage underdevelopment in substantial housing change areas and also those which ensure a sensitive transition between substantial housing change areas and incremental housing change areas.
4. There are also a range of other policies of the scheme which are relevant to the proposal, including those relating to apartment and urban design (e.g. clauses 11.03-1S, 15, 22.06-3.1).

1. One of the main reasons the Tribunal refused to grant a permit for a six storey apartment development on this site in 2015, was because of its concern that the scale of such a development was a significant change from the existing built form context of the site, and there was a lack of strategic policy support for such a substantial change.
2. The existing built form context of the site, remains largely unchanged since 2015. However, policies which were only being formulated in 2015 have now been finalised and incorporated into the scheme. These policies now provide clear strategic planning support for substantial change to occur on the site, consistent with the guidance provided by the DDO17 and other policies of the scheme.
3. The policies which are now in the scheme, provide detailed guidance on the building envelope which is appropriate for the site. The DDO17 now provides clear policy support for the six storey scale of the proposal given the designation of this part of the Plenty Road corridor for development of up to 20 metres in height. The proposal has a maximum building height of 18.8 metres from natural ground level, so fits comfortably under the mandatory maximum height limit of DDO17.
4. Mr Midgely said that Council had sought a four storey height limit in this area and referred to Council minutes from 2015. It is not uncommon for there to be changes to proposed planning policies, indeed this is one of the key reasons the Tribunal in 2015 did not give DDO17 as it was proposed at the time significant weight.
5. However, there is no longer a proposed policy before me. Rather, the policies to guide built form outcomes for this site which were proposed in 2015 have now been finalised and the scheme has been amended to apply the DDO17 to the site. It is this current form of DDO17 which is relevant to my decision, not any previous forms of DDO17 which may have been sought by Council in the past.
6. In my view, the building envelope which is proposed to be occupied by the proposal is an appropriate response to the requirements of the DDO17 and other relevant clauses of the scheme (e.g. clause 22.06) as it:
   • Comfortably complies with the mandatory maximum height limit of 20 metres, with a maximum height of 18.8 metres;
   • Complies with the rear setback requirements of the DDO17, including the requirement for upper levels to be contained within the 45 degree setback envelope described in the DDO17.
   • Provides boundary to boundary development which is consistent with the allowance in the DDO17 for walls on boundaries along the entire length of side boundaries, and is also consistent with the encouragement of DDO17 for this site, as one which is designated by the DDO17 for active frontages
   • Provides a zero front setback for the lower four storeys, with a stepping back of the proposal from the front boundary by 4.4 metres which in my view, is adequate to provide appropriate separation between the lower and upper parts of the building.
   • Orients the dwellings toward the front and rear boundaries of the site and provides a substantial internal courtyard which, as I explain further below, provides a good level of daylight to all levels.
   • Allows for similar development outcomes, particularly on the similarly sized site to the south, as I explain in more detail below.
   • Avoids underdevelopment of land in a substantial housing change area.
7. I also consider the overall design of the proposal to be an acceptable response to its built form and policy context. From its front and rear elevations, the proposal is well articulated. As called for by the DDO17, it achieves this articulation primarily by use of fenestration, balconies and architectural features, rather than by being overly reliant on a complex application of a variety of materials or colours.
8. While a blank wall is proposed to the southern side boundary, this is likely to be an interim condition as the land adjoining to the south is of a similar size to the proposal and I was advised by the applicant that the architects involved in the proposal before me are also assisting with a development proposal for the site to the south. The blank wall itself, is consistent with DDO17 which says that a mid-block blank wall which is an interim condition subject to future adjoining development, should be coloured, textured or finished to provide visual interest to passing pedestrians. In my view the proposal does so by providing a patterned finish to the wall.
9. To the north, an expanse of blank wall is avoided as a result of the central light well. I consider the avoidance of an expanse of blank wall to this elevation a positive feature of the development, particularly as the smaller lot sizes of the land to the north of the site make future development of a similar scale a more complex proposition.
10. In my view, the proposal also provides a reasonable diversity of dwelling size and layout consistent with the scheme. While the respondents pointed to data suggesting a need for more three bedroom dwellings in the municipality, I do not accept the submission of the respondents that the scheme calls for a greater number of three bedroom dwellings to be delivered by the proposal.
11. As also called for by the DDO17 and other relevant policies, the proposal also provides an active street frontage to Plenty Road which provides ground level commercial tenancies, as well as a distinct pedestrian entry to the residential apartments.
12. The respondents suggested that the proposal should be more tempered to its rear, adopting a setback in excess of the 45 degree envelope called for by the DDO17. However, there is nothing in the strategic policy context which, in my view, calls for a greater setback for this site. The DDO17 provides quite specific requirements for development in this area. There are parts of the Tyler Street activity centre where a greater setback to the rear is required. However, this greater setback requirement has not been applied to the site. While there is a general policy call for development to provide a sensitive transition between areas of substantial change and areas of incremental change, I consider that this general policy is achieved by the proposal in this instance in its compliance with the DDO17 setback requirements.
13. It is, however, a separate question as to whether there are specific amenity issues which may need to be addressed by way of a setback over and above the requirements of the DDO17. I consider the amenity impacts of the proposal on adjoining properties separately below.
14. It follows from the above, that I consider the proposal an acceptable response to its strategic policy and built form context. The changes to the scheme since the 2015 Tribunal decision have strengthened the strategic policy support for substantial change to be delivered on this site, and the proposal is consistent with the degree of change which is now supported on this site by the scheme.

WILL THE PROPOSAL PROVIDE ACCEPTABLE INTERNAL AMENITY?

1. Amended plans resolved all of Council's concerns with the proposal, other than some of its concerns about the internal amenity provided by the proposal for its future residents. Mr Midgely also provided a detailed and helpful analysis of his concerns about the internal amenity of the proposed development.
2. The 2015 Tribunal decision also had concerns about the internal amenity of the proposal before it, in terms of the solar access of the apartments. However, the proposal before me has a significantly different apartment layout compared with the proposal before the Tribunal in 2015. Also, since the 2015 Tribunal decision, provisions of the scheme relating to internal amenity of apartments have changed significantly with the introduction of clause 58 into the scheme and changes to design guidelines applying to higher density apartment developments. The differences between the proposal and scheme provisions reduce the relevance of the 2015 Tribunal decision to my assessment of the internal amenity of the proposal before me.
3. There are a number of aspects of the proposal which the Council and the respondents say fall short of the requirements of the scheme relating to internal amenity. For the reasons discussed below, I do not consider any of these matters give rise to unacceptable internal amenity outcomes which would warrant my refusal of the application. Rather, having considered these matters as well as all of the requirements of clause 58 and other provisions of the scheme relating to internal amenity, I am satisfied that the proposal provides an acceptable level of internal amenity, subject to some minor modification which I consider can be appropriately addressed by way of permit condition.

1. Council says that the proposal should provide waste chutes for residents either in their apartments or on each level of the building. The Council and the respondents also say that there are accessibility issues with the proposed waste bin storage area, which is proposed at the rear of the ground level car park.
2. I was referred to other past decisions of the Tribunal for other apartment developments on other sites, some of which required a waste chute to be provided as a permit condition and others which did not. Waste chutes are referred to section 8.4 in the Apartment Design Guidelines for Victoria (2017) (the Apartment Guidelines) as being something to be provided in 'taller' buildings. These guidelines are referred to in the Planning Policy Framework (see e.g. clause 16.01-1S), as relevant to achieving integrated housing outcomes.
3. Waste chutes are not specifically referred to in clause 58.05-3, which now also sets out objectives and standards relating to waste and recycling. However, they may be something which may be relevant to the accessibility of the proposed waste and recycling facilities.
4. The objectives of clause 58.05-3 are:
   • To ensure dwellings are designed to encourage waste recycling.
   • To ensure that waste and recycling facilities are accessible, adequate and attractive.
   • To ensure that waste and recycling facilities are designed and managed to minimise impacts on residential amenity, health and the public realm
5. Standard D23 sets out detailed requirements for the provision of waste and recycling facilities for apartment developments. I consider the proposal generally meets the requirements of Standard D23 and therefore the objectives of clause 58.05-3, without the need for the provision of waste chutes in this instance, as:
   • It includes an appropriately sized and designed waste and recycling enclosure to service the residential and commercial uses which is capable of appropriate ventilation and bin washing facilities (the details of which I have required to be included in the waste management plan to be prepared under the permit conditions), is integrated with the development and will not give rise to unacceptable external amenity impacts to adjoining residential properties;
   • The bin enclosure is relatively conveniently accessed being on the ground floor of the proposal which is a level that people must access when leaving the building. The relatively convenient accessibility of the bin enclosure, together with the relatively small scale of the proposed apartment development, minimises the distance over which future residents will need to carry waste. In my view, this means that the proposed waste and recycling facilities are acceptable without the need for a waste chute as suggested by Council.
   • While the plans only allow access between the lift and car park by steps, the applicant via its traffic expert has put forward a minor design change which would provide for improved accessibility to this area and remove the stairs from the ground floor lift lobby to the car park. I consider that this change is required to achieve Standard D23. I also consider this change capable of being achieved by way of permit condition and have included a condition to this effect. As discussed at the hearing, I have also required the dimension of the doorway to the bin enclosure to be shown on the plans to ensure this clearly provides for access by persons with limited mobility.
   • I accept the expert traffic evidence of Mr Furness that there is adequate circulation for private waste collection vehicles, which will enable the vehicle to leave the site in a safe manner and without reversing, subject to the inclusion of a permit condition confirming arrangements in the waste management plan for the bin contractor to have access to the car park for bin collection and vehicle access purposes.
   • There is adequate space in the kitchens of the apartments for the storage of waste pending its removal to the communal bin enclosure.
   • The permit conditions will require a waste management plan to be approved by the Council to ensure appropriate ongoing waste management is achieved on the site in accordance with best practice principles.

1. There is no dispute that the orientation of the apartments to the front and rear of the site provides a good level of solar access to the living areas of those apartments. This was confirmed by the modelling of Mr Richardson.
2. However, Council raised concerns about the solar access provided to bedrooms with windows facing into the proposed internal courtyard.
3. DDO17 says that buildings on a site of this depth should be separated mid-lot to create an internal courtyard. It also says that upper levels should be set back to allow good daylight access to dwellings at lower levels.
4. In this case, the upper levels are not stepped back within the courtyard. However, I do not consider this to be necessary in this instance given the overall size of the internal courtyard, which has dimensions of 9 x 10 metres. I accept the evidence of Mr Richardson that the size of the proposed light court is sufficient to ensure appropriate levels of daylight to all habitable rooms. Mr Richardson gave evidence as to the daylight modelling work that he has carried out to establish this, including confirming that his assumptions upon which his modelling was based reflect the plans of the proposal. There were, however, a number of assumptions about the colours of elements of the proposal which are important to the way in which daylight is reflected into the windows facing the internal courtyard. I have imposed a permit condition which requires the final colours and finishes to be consistent with those adopted in Mr Richardson's modelling to ensure the modelled daylight outcomes are achieved in practice.
5. Council also raised concerns about the solar access provided to a number of studies which are not provided with windows, and also to a bedroom 2 of apartments 5.04 which is not provided with a window.
6. Clause 58.07-3 has an objective of allowing adequate daylight into new habitable room windows. Standard D26 of that clause says that habitable rooms should have a window in an external wall of the building. I am not satisfied that either this standard or objective is achieved by bedroom 2 of apartment 5.04 given the absence of any window in that room. I do not accept in this instance that a Velux skylight is an appropriate alternative which will provide acceptable levels of daylight and ventilation into this room. Rather, I consider it appropriate to adopt the applicant's alternative suggestion that this bedroom be converted to an open study area, giving the apartment a similar internal layout to that of apartment 4.05 below it. This is a matter I consider can be dealt with by way of permit condition and I have, therefore, included a condition to this effect.
7. I am less concerned about the studies of apartments 1.01, 1.04, 2.01, 2.05, 3.05 not being provided with their own windows. These spaces are small study nooks rather than substantial rooms. The larger study nooks in apartments 1.04, 2.05 and 3.05 will be provided with sufficient light from other windows within the apartment.
8. The study in apartment 4.05 is a different matter. This is proposed as a separate, substantially sized room. In order to ensure sufficient daylight to this space, I accept the suggestion of the applicant that this study be converted to an open nook rather than a closed room so as to enable it to maximise access to daylight from the windows to the open plan living area. I have required this by way of permit condition, with this layout also to apply to the study to be created for apartment 5.04 in place of bedroom 2.

1. Clause 58.07-1 contains the following objective relating to the functional layout of apartments:
   • To ensure dwellings provide functional areas that meet the needs of residents.
2. Standard D24 provides that one way in which this objective can be achieved is by meeting certain quantitative requirements for bedrooms and living areas.
3. For bedrooms, Standard D24 requires minimum internal dimensions to be achieved, with an additional area provided for a wardrobe. The dimensions are specified as 3 x 3 metres, other than for a main bedroom which is to have a minimum width of 3 metres and a minimum depth of 3.4 metres.
4. For living areas, Standard D24 also says certain minimum internal room dimensions should be achieved. These minimum dimensions are not described in terms of width and depth as they are for bedrooms, which is perhaps reflective of the likelihood of living areas being a space in a larger open plan room. Rather, Standard D24 requires living area to be of a:
   • minimum area: which for studio and one bedroom apartments is 10m2 and for apartments with two or more bedrooms is 12m2; and
   • minimum width: which is 3.3m for studio and one bedroom apartments and for apartments with two or more bedrooms is 3.6 m.
5. Given the prevalence of open plan kitchen/dining/living areas, in most situations the 'living area' identified for the purposes of Standard D24 will be a part of a larger open plan room. Standard D24 says that living areas are not to include dining and kitchen areas.
6. Council and the respondents say that the proposed living areas of almost all the apartments do not comply with Standard D24 of clause 58.07-1 of the scheme.
7. The applicant reads Standard D24 in a different way and says that the proposed living areas comply with Standard D24 as it interprets it. But it also says that if it is wrong about the meaning of Standard D24, then the proposed living areas comply with the objective of clause 58.07-1 of the scheme in any event.
8. There are essentially two main areas of dispute between the parties about the meaning of Standard D24:
   • Whether the area immediately in front of some of the galley kitchens can be included in the 'living area'; and
   • What dimension is the 'minimum width' of the living area.
9. For the reasons I explain below, on both of these matters in dispute I consider Council's and the respondents interpretation of Standard D24 to be the preferable one, and find that:
   • The area immediately in front of some of the proposed galley kitchens cannot be included in the 'living area' where this space is needed for the use of the kitchen (e.g. space to open cupboards, refrigerators, ovens, stand at the sink etc); and
   • The 'minimum width' of the living area is the smaller of the two dimensions of that area (e.g. where the living area is depicted as a rectangle of 3.3 x 3 metres, then the minimum width is 3 metres, irrespective of the way in which the living area is oriented within the open plan room).
10. My findings also mean that I agree with Council and the respondents that the proposed living areas generally do not achieve Standard D24.
11. However, this is not the end of the matter. Standard D24 is only one way of achieving the objective of clause 58.07-1. In this case and having regard to the decision guidelines set out in clause 58.07-1, for reasons I also explain below, I consider all of the proposed apartments achieve the objective of clause 58.07-1 in providing a functional living space which will meet the needs of residents.

1. Standard D24 clearly says that for its purposes, the 'living area' is not to include kitchens or dining areas.
2. In my view, a kitchen has to include not only the space taken up by cupboards, ovens, pantries, fridges and the like, but also the space reasonably needed to use those items. In a galley kitchen, this will mean that some space immediately in front of the kitchen cupboards etc is properly considered to be part of the kitchen.
3. How much space in front of the cupboards is part of the kitchen, is another question. But it is not a question that I think needs to be answered precisely in the proceeding before me.
4. The purpose of Standard D24 is not to provide a detailed future layout of an apartment which is to be locked in as part of the planning process. Rather, the purpose of Standard D24, is for plans to demonstrate that there is a sufficient envelope of space available for the reasonable needs of future occupants.
5. In the proposal before me, in all instances where the living area envelope is shown in a space that I consider to be too close to the galley kitchen, there is sufficient room within the broader open plan area for an acceptable living area to be provided. In most instances (i.e. in apartments 2.04, 3.04, 4.04, 4.05 and 5.03), there is sufficient room for an alternative living area envelope to be depicted which complies with Standard D24. The main reason it is not shown this way on the plans was because of the applicant's differing interpretation of Standard D24.
6. There are a small number of apartments in which the overall living space is 'tighter', namely apartments 1.02, 2.02, 3.02 and 4.02 and it is unlikely that a living area envelope which complies with Standard D24 can be provided. Most of these are also apartments with a larger number of bedrooms which creates an extra demand on the living area space of those apartments. In considering whether these living areas meet the objectives of clause 58.07-1, the decision guidelines in that clause require me to consider the design response, as well as the useability, functionality and amenity of these rooms. Having considered these matters and also plans handed to me during the course of the hearing indicating alternatively drawn living area envelopes, I am satisfied that these apartments will also provide living areas which comply with the objectives of clause 58.07-1, in that they will provide a space which will have an area of at least 12 m2 which is useable and functional, despite being a little shorter and wider than that contemplated by Standard D24.

1. The term width is used in a number of places throughout the scheme in general, and in clause 58 in particular. It is often used in conjunction with 'depth' or 'length'. None of these terms are defined in clause 73.01 of the scheme.
2. In the absence of any general definition of 'width' in the scheme, it should be given its ordinary meaning. The Macquarie Dictionary (6th ed) defines 'width' as 'the extent from side to side; breadth; wideness'. 'Breadth' is relevantly defined to mean:

the measure of the second principal dimension of a surface or solid, the first being length, and the third (in the case of a solid) thickness

1. In accordance with well established principles of statutory interpretation, the meaning of 'width' should also be ascertained with regard to the purpose of the part of the scheme in which it appears and with regard to the particular context in which it is used.
2. As I explained above, the purpose of Standard D24 is not to lock in an internal apartment design, but rather to ensure that there is sufficient space within an apartment for future occupants to enjoy a reasonable level of internal amenity.
3. Clause 58 confirms that the purpose of standards such as Standard D24 is to set out a way of achieving the relevant objective, which for Standard D24 is set out in clause 58.07-1 and relates to the provision of functional areas that meet the needs of residents. I consider the focus of Standard D24 therefore, to be on the size and shape of those areas, not on their general orientation or level of solar access. There are other parts of clause 58 which focus on solar access. Standard D24 is focused on the relatively simple question of whether there are appropriately sized spaces within the apartment to serve as bedrooms and living areas with reasonable amenity, and it should be read as such.
4. Bearing this in mind, where Standard D24 refers to a main bedroom as having a minimum depth of 3.4 metres and a minimum width of 3 metres (not including wardrobes), I interpret this as simply requiring a room which is 3.4 x 3 metres, with the depth being the longer and the width being the shorter of the two dimensions, irrespective of how they are oriented.
5. Similarly, I consider living area requirements of Standard D24 should be interpreted as simply requiring an envelope to be provided within the broader open plan room, which can be of any shape, size and orientation, so long as the area of the envelope meets the relevant minimum area and the shape of the envelope is of the relevant minimum width.
6. This is the way that Council and the respondents read Standard D24. They say that 'minimum width' is the smaller dimension of the living area envelope depicted on the plans. So, in the example extracted below, where the living area is depicted as a rectangle of 3.05m x 3.3m, Council says its minimum width is 3.05m.

1. On the other hand, the applicant reads 'width' as a reference to the orientation of the open plan room as a whole, rather than the living area envelope the subject of Standard D24. In the example extracted above, the applicant says that the width of the overall open plan room is the dimension which runs across the face of the external window. It then says this is the direction to measure the width of the living area envelope - which leads it to conclude that the width of the living area is 3.3m. In determining the width of the open plan room, the applicant refers to a definition of 'depth' which is provided in a different clause of the scheme, clause 58.07-2.
2. I consider the applicant's interpretation focuses on the orientation of the envelope in a way which is inconsistent with the purpose of Standard D24.
3. I also do not consider it appropriate for the definition of 'depth' used in clause 58.07-2 to be used to interpret Standard D24. The purpose of Standard D24 is quite different to the purpose of clause 58.07-2. Clause 58.07-2 and its related Standard D25 seek to achieve the object of ensuring adequate daylight into single aspect rooms. Standard D25 adopts a definition of 'depth' which is specific to this object and this clause. It is not a definition of broader application. This Standard D25 specific definition of 'depth' should not be used, as the applicant suggests, to say that references to 'depth' in Standard D24 should also be measured from windows back into the apartment. Nor should it be used, as again the applicant suggests it should, as a basis to suggest that references in Standard D24 to 'width' should be measured across windows.
4. The other main reason I prefer the approach of Council and the respondents is that the applicant's interpretation of 'minimum width' would result in absurd outcomes. This is because its interpretation would allow a very narrow living area envelope to comply with Standard D24, so long as it was oriented across the face of the window in a single aspect room. For example, using the applicant's interpretation, a space which was 10 metres long and 1 metre wide would comply with Standard D24 in a one bedroom apartment, so long as the space ran across the face of the window. It cannot have been intended that a space which would clearly not operate as a functional living area, could meet the requirements of Standard D24 in this way. This absurd situation does not arise when the Council's and respondent's interpretation of 'minimum width' is adopted, as the same envelope would be considered to have a minimum width of only 1 metre, which falls well short of the requisite 3.3 metres.
5. In support of its preferred interpretation, the applicant raised concern about the way in which the interpretation of 'minimum width' that I have adopted tends to require living area envelopes to be larger than the 10m2 or 12m2 minimum area specified by Standard D24. The applicant says that in requiring the minimum width of the living area envelope itself to be 3.3m or 3.6m (depending on bedroom numbers) this means that a living area envelope of at least 10.89m2 (i.e. 3.3 x 3.3) or 12.96 m2 (i.e. or 3.6 x 3.6) must be provided to meet Standard D24. I accept that this is the case if the living area is shown as being a square/rectangular shape. However, as the 'living area' will in most cases be a space within a larger open plan room, it is not necessarily the case that it will be shown as a regular, square or rectangle shaped area. If a proponent elected to show the 'living area' space in an open plan room as another shape then it may be that the above outcome does not arise.[5] Accordingly, I do not consider these concerns of the applicant are a matter which indicates a real issue with the interpretation of 'minimum width' that I have preferred. Furthermore, even if my preferred interpretation does end up requiring living area envelopes over the minimum area specified in Standard D24, as I have already explained, there is no mandatory requirement for a proposal to achieve Standard D24. Rather, an alternative which still achieves the objective of clause 58.07-1 is able to be provided.
6. In the proposal before me, all but one of the proposed living area envelopes have a minimum width which is less than that set out in Standard D24. However, having reviewed the general open plan rooms of each of the apartments, I am satisfied that they all provide an acceptable living area which is useable and functional. Apart from the small number of apartments I have already identified, I consider that all apartments have sufficient room for an alternative living area envelope to be depicted which would comply with Standard D24. And as I have already explained, I am satisfied that those apartments which do not appear to have sufficient space within their open plan area for a living area envelope which achieves Standard D24, nonetheless provide useable, functional living areas of sufficient amenity to meet the needs of future residents consistent with the objectives of clause 58.07-1.
7. It follows from the above, that I consider the proposal achieves the objectives of 58.07-1 in providing functional areas which meet the need of future residents.

1. Council says that corridors to some apartments are not wide enough and also give rise to noise conflicts.
2. Apartments on levels 2 to 5 of the proposal are accessed via a central lift or stairwell which opens onto a covered walkway. There are five apartments on each of these levels, except for level 5 which only has four apartments.
3. The covered walkway is over 1.5 metres wide in front of the lift. It reduces to 1.2 metres wide after it turns a corner on either side of the lift. Generally, two apartments have a doorway off the walkway where it is at least 1.5 metres wide. The other apartments on each level have an access off the walkway where it is 1.2 metres wide.
4. Council says this is inadequate and that the width of the walkway should be wider. In response to my question as to how wide Council said the walkway should be, it suggested 1.5 metres. Council was unable to point to any part of the scheme or other standard that required the accessway to be 1.5 metres.
5. Given the lack of any requirement suggesting that 1.2 metres is inadequate, that 1.2 metres is a standard width to assess accessibility, and the low numbers of apartments to be accessed of these narrower parts of the walkway (i.e. only one or two apartments are accessed off each of the narrower arms of the walkway at each level), I consider that the proposed accessway is acceptable in terms of being of a suitable width to ensure accessibility into each apartment.

1. The Council also raised concerns about the details of the windows of bedrooms facing the internal light court and common area, including whether they opened and how this may affect ventilation and noise.
2. During the hearing the applicant confirmed that the bedroom windows in question were openable. Given this, the proposal complies with Standard D27 and, therefore, clause 58.07-4 in respect of natural ventilation.
3. Clause 58.04-3 contains objectives which seek to protect residents from noise sources. Standard D16 includes a requirement which provides that noise sensitive rooms should be located to avoid noise impacts from mechanical plants, lifts, building services, non-residential uses, car parking, communal areas and other dwellings.
4. Notwithstanding the difficulties with resolving a design which achieves the above requirement of Standard D16 and also balances other design objectives of the scheme, I consider the applicant has largely achieved Standard D16, with a number of exceptions.
5. One exception is the location of bedroom windows facing into the light court, which also contains communal accessways and areas.
6. However, I consider that future residents will nonetheless be protected from noise consistent with the objective of clause 58.04-3 because:
   • While there is the possibility that a person passing one of these windows may be heard within the adjoining bedroom, given the limited number of apartments at each level, I do not consider this to be likely to result in significant amenity impacts in this case.
   • As the communal area at the base of the light court is to be managed by the body corporate, this will enable rules about the time and manner of its use to be put in place. I am satisfied that this will sufficiently protect future residents from unacceptable noise from this area.

1. Mr Midgely also raised concerns about the location of some bedrooms proximate to the lift well, over the car stackers and garage door, and to laundries within other apartments.
2. I do not consider it likely in this instance, that a bedroom which is proximate to the relatively small laundry facilities proposed for the apartments will suffer any greater noise impacts than a bedroom located proximate to another part of the apartment. So too, apartments on a level above car stackers and garage doors is not uncommon and there is no evidence before me to suggest that this layout will result in unacceptable noise within apartments.
3. There is greater potential for noise impacts for bedrooms located abutting the central lift well, noting that this is one of the type of potential impacts specifically recognised by Standard D16. However, I agree with the applicant that this is something which can be addressed by way of a permit condition which requires appropriate acoustic insulation to be provided to those bedrooms and I have included a permit condition to this effect.

1. Standard D20 of clause 58.05-4 requires a certain level of internal storage to be provided within apartments. During the course of the hearing, the applicant provided me with information as to the compliance of the proposal with Standard D20. On this basis, I am satisfied that the proposal provides appropriate internal storage for future residents. I have included a permit condition to confirm compliance with internal storage requirements on the plans.

1. Council raised what it agreed was a technical non-compliance with Standard D17 as to the location of the toilet in many of the accessible bathrooms. There was no dispute, and I agree with the parties, that apart from this the proposal complies with the requirements of Standard D17 in terms of accessibility.
2. In the apartments which use 'Design Option A' (i.e. apartments 1.01 & 2.01) requirements set out in Standard D17, the toilets are not located in a corner. The Apartment Guidelines provide guidance on the purpose of this requirement as providing the ability for a grab rail to be affixed if required by residents. The Apartment Guidelines also say that this outcome can be achieved by way of a nib wall which extends out along the side of the toilet by 700mm. In this instance, toilets are located next to a nib wall which runs into a shower. It may be possible to achieve 'Design Option A' of Standard D17 in those bathrooms by extending the length of the nib wall and reducing the length of the shower, or alternatively, by relocating the toilet. The applicant agreed that modifications could be required by way of permit condition to bathrooms to achieve Standard D17 and I have included a permit condition to this effect.
3. In the apartments which use 'Design Option B' (i.e. apartments 1.02, 1.03, 2.02, 3.01, 3.02, 4.03, 4.04, 4.05, 5.02, 5.03), the toilet is not located closest to the door opening in accordance with Standard D17. Again, the applicant agreed that modifications could be required to these bathrooms by way of permit condition to achieve Standard D17 and I have included a permit condition to this effect.
4. I do not accept the submission of Mr Midgely that Standard D17 requires accessible bathrooms to be provided off main bedrooms. Rather, I find that Standard B17 only requires an accessible bathroom somewhere within the apartment. Therefore, I do not consider the proposal to fall short in this respect.
5. It follows from the above that I find the proposal to provide an acceptable level of accessibility, subject to minor modifications which I have required by permit condition.

1. Mr Midgely raised concerns about the proposed balconies of apartments 3.04, 3.05, 4.02, 4.04 and 5.04 being less than the area specified by Standard D19 in that they provide less than 1.5 metres of additional space for an air conditioning unit.
2. The proposed balconies have a slightly irregular shape along their external sides which makes their exact area difficult to calculate by scaling off the plans. However, the plans clearly show that each has a width of at least 2 metres, a generally rectangular space of over 8m2 for use as private open space, and an overall area of at least 9 m2.
3. To the extent that some of these balconies fall short of providing the additional 1.5 m2 space for air conditioning units required by Standard D19, I am satisfied that the proposal still meets the objective of clause 58.05-5 in providing adequate open space for residents given the overall functionality of the balconies, the amenity of the balcony spaces given their orientation to the front or rear of the site, and the provision of an additional area of communal open space within the internal courtyard for use by residents of the apartments.

DOES THE PROPOSAL GIVE RISE TO UNACCEPTABLE EXTERNAL AMENITY OUTCOMES?

1. The 2015 Tribunal decision considered the potential for the previous proposal to give rise to amenity impacts to the adjoining properties to the rear, particularly in terms of overlooking, overshadowing, visual bulk and noise. In that case, the Tribunal found that overlooking, overshadowing and visual bulk impacts were unacceptable in circumstances where there was a lack of strategic support for a proposal of the scale then proposed.
2. Overlooking, overshadowing, visual bulk and noise impacts to the residential properties to the rear were also raised by the respondents in respect of the proposal before me. However, the strategic support for the scale of the proposal, together with the different design response of the proposal have lead me to reach a different conclusion on these matters to that reached by the Tribunal in 2015. For the reasons I explain below, I find that the proposal will not give rise to unacceptable external amenity impacts to the residential dwellings to the rear of the site.

1. Unlike the proposal considered in 2015, the proposal before me provides screening in the form of fixed horizontal balcony shelves. These shelves prevent overlooking down into the private open space of adjoining dwellings to the rear of the site, within 9 metres of those balconies.
2. This complies with the usual standards applied in respect of overlooking and I find that as a result of these screening measures, overlooking impacts are acceptable. The prevention of overlooking in a way which does not prevent the apartment retaining a reasonable outlook is also a positive design outcome.

1. The visual bulk of the proposal, including as a result of screening treatments, is different in the proposal before me compared with that considered by the Tribunal in 2015. The current proposal is stepped back in accordance with the specific rear setback guidance now contained in DDO17, with the balconies of apartments at levels 1 being set back 5.5 metres from the rear boundary and upper levels set back in accordance with the 45 degree setback envelope detailed in DDO17.
2. This results in the upper levels of the apartment being well setback from the rear boundary, for example with level 4 balconies set back between 8.5-9 metres and level 5 balconies set back at least 11.5 metres from the rear boundary.
3. Compliance with the requirements of DDO17 in my view, mean that the proposal is consistent with the preferred future urban character of this area now described in the scheme.
4. The proposal is also well articulated along its rear elevation, with the building designed in a stepped manner, with further articulation provided by the balconies and selection of materials and finishes.
5. In my view, the proposed setbacks, together with the articulation of the built form as it presents to the rear of the site, will ensure that no unreasonable visual bulk impacts arise.

1. The proposal before the Tribunal in 2015 resulted in overshadowing of No. 2 Hawker Avenue which the Tribunal found to be unacceptable in the circumstances of that case, including the lack of strategic policy support for the proposal.
2. The proposal before me will result in less overshadowing of No. 2 Hawker Avenue, so that there is only a minor shadowing impact at 10am and no shadowing impact later in the day.
3. I consider this degree of overshadowing of No. 2 Hawker Avenue will not result in an unacceptable amenity impact. This is particularly so in circumstances where there is now also strong strategic policy support for the scale of the proposal.

1. The respondents also raised concerns about the traffic using the easement to access the proposal, particularly in respect of the noise along the easement.
2. I accept the position of Council and the evidence of Mr Furness that the use of the easement for access is acceptable, subject to appropriate permit conditions requiring the upgrading of the easement pavement. I also accept the position of Council and the evidence of Mr Furness that the car parking to be provided is acceptable both in terms of the number of spaces to be provided and the proposed car stacker arrangements.
3. In terms of the concerns of Ms Royals about potential impacts associated with the increased use of the easement, such as the noise of vehicles, the potential for vehicles to collide with the side fence and drainage, I consider that these matters will not give rise to unacceptable impacts, subject to the inclusion of conditions proposed by Council which require the final details for the improvements to the access along the easement to be resolved and constructed (including the drainage of the easement) prior to the development of the site.
4. I do not consider noise associated with the increased use of the easement to be unreasonable, given the existing nature of the easement, and the context of the No. 2 Hawker Avenue at the edge of an activity centre. I therefore, do not consider it appropriate to impose a condition requiring an acoustic fence to be constructed along the boundary of the easement, as requested by Ms Royals.

WILL THE PROPOSAL ALLOW EQUITABLE DEVELOPMENT OUTCOMES ON ADJOINING SITES?

1. In response to my questions about equitable development opportunities to the north of the site, I accept the evidence of Mr Richardson that the proposal will not unreasonably impede future development of proprieties to the north, noting that consolidation of these sites may be required before a development of six storeys could be achieved. In particular, I accept the evidence of Mr Richardson, that even in the situation where the northern sites were developed with a sheer six storey wall along the northern boundary of the internal courtyard, the size of the internal courtyard means that it would still allow for acceptable levels of daylight to reach habitable room windows.
2. I understand that development of the south of the site is likely to be pursued in the short term. This site is of a similar size to the subject site. Based upon the evidence of Mr Richardson, a proposal designed to be a mirror image to the proposal would achieve the same daylight outcomes as the proposal if it incorporated a similarly sized internal courtyard. Further, even with a similarly oriented proposal, Mr Richardson's evidence was that appropriate daylight access could be achieved with a similarly sized internal courtyard.
3. The adjoining owner of the land to the south has not objected to the proposal or to the works to be carried out as part of the proposal on the rear of the site to the south.
4. All of these matters together give me comfort that the proposal will not unreasonably constrain the future development of the site to the south.

1. Without prejudice permit conditions were circulated by Council prior to the hearing and discussed at the conclusion of the hearing. I have included conditions consistent with that discussion and also with my above findings on the merits of the permit application. In respect of the following matters raised by the parties about conditions I note that:
   • I have not included a permit condition requiring linemarking of the pedestrian routes in the car park or a mirror near the waste area as requested by Mr Midgely. The safety and appropriateness of the car park has been assessed by both Mr Furness and Council's traffic engineers and neither have considered such measures necessary in this instance.
   • I have not included a requirement for the construction of a new fence along the easement, adjoining 2 Hawker Avenue. For the reasons outlined above, I do not consider this to be necessary as a result of the development.

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

629, 631 and 631A Plenty Road, the rear of 625-627 Plenty Road and the rear of 2A Hawker Avenue (also known as 621 Plenty Road)

• use and development of the land for a six storey building comprising 23 dwellings and two retail spaces over basement car parking; and
• a reduction of the car parking requirements.

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. The plans must be drawn to scale with dimensions and must be generally in accordance with the plans submitted with the application (identified as TPA03 - TPA015, Revision D1, prepared by Cornetta Partners Architects, Job No 15-24, and dated 24.08.2018) but modified to show:
   • (a) The northern elevation of the internal courtyard
   • (b) 50% of apartments to comply with Standard D17, including in the location of the toilets within accessible bathrooms.
   • (c) Obscure/privacy glazing of the windows facing the internal courtyard is to be of a product which has a visual light transmission of at least 70% (for the glass component)
   • (d) The deletion of the stairs from the lobby to the ground floor car park and the reconfiguration of that wall (without reducing the car park area) to provide for, a lobby with the same finished floor level as the car park with a glass sliding door from the lobby to the car park, and with the pedestrian access from Plenty Road to the lobby to be graded at no more than 1:14 (all to be generally in accordance with the sketch of Mr Furness filed with VCAT on 5/10/2018).
   • (e) The study of apartment 4.05 to be opened into a study nook so as to receive some level of daylight access from the windows to the open plan living area.
   • (f) Bedroom 2 of apartment 5.04 to be replaced with a study nook with a similar configuration to that in apartment 4.05.
   • (g) Details of compliance with Standard D20 for each apartment.
   • (h) Dimensions of the doors to the bin enclosure which are sufficient to allow access by persons with limited mobility.
   • (i) Further detail with respect to window sizes and operability, particularly where habitable room windows interface with the internal light-court
   • (j) Any modifications in accordance with the Waste Management Plan required by Condition 18
   • (k) Any modifications in accordance with the Sustainable Design Assessment required by Condition 21
   • (l) A notation confirming that the area on level 1 at the bottom of the light court is to be an area of communal open space.
   • (m) Any modifications in accordance with the Landscape Plan required by Condition 23.
   • (n) Details of construction of the carriageway easement and modifications to the footpath along Hawker Street as required by Condition 32a.
   • (o) A comprehensive schedule of construction materials, external finishes and colours (including colour samples and details of the colour of the underside of external balconies and walkways) which is generally consistent with the schedule set out in the plan prepared by Cornetta Partners Architect, Rev D1 dated 24.08.2018, together with confirmation from a suitably qualified expert that the colours and finishes will provide daylight outcomes to apartment windows which is consistent with the expert evidence of Mr Richardson filed with the Tribunal in VCAT Proceeding No. P590/2018.
   • (p) The height of fences on the west boundary to be a minimum height of 1.8 metres as measured above natural ground level.
   • (q) The location of all plant and equipment (including air conditioners and the like). These are to be co-located where possible, screened to be minimally visible from the public realm and adjacent properties, located as far as practicable from site boundaries and integrated into the design of the building.

When approved, the plans will be endorsed and form part of this Permit.

1. The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
2. This Permit will expire if either:
   • The development does not start within three (3) years from the date of this Permit; or
   • The development is not completed within five (5) years of the date of this Permit.

As relevant, the Responsible Authority may extend the times referred to if a request is made in writing:

• Before this Permit expires;
• Within six (6) months after the expiry date; or
• Within twelve (12) months after the expiry date if the request relates to the completion of the development or a stage of the development.

1. The land must be drained to the satisfaction of the Responsible Authority.
2. Floor levels shown on the endorsed plans must be confirmed. The confirmation of the ground floor level must take place no later than at the time of the inspection of the subfloor of the development required under the Building Act 1993 and the Building Regulations 2010. This confirmation must be in the form of a report from a licensed land surveyor and must be submitted to the Responsible Authority no later than 7 days from the date of the sub-floor inspection. The upper floor levels must be confirmed before a Certificate of Occupancy is issued, by a report from a licensed land surveyor submitted to the Responsible Authority.
3. Before the development commences, the owner of the subject site, known as 629, 631 and 631A Plenty Road/ permit holder must enter into an Agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987 to the satisfaction of the Responsible Authority to the effect that, without the written consent of the Responsible Authority and affected land owners:
   • (a) No buildings and works are to take place within the carriageway easement (which runs between Hawker Avenue and the south western corner of the subject site); and
   • (b) No buildings and works are to take place within Hawker Avenue;

until such time as plans detailing the re-construction, re-grading and/or re-surfacing (including drainage) of the carriageway easement (which runs between Hawker Avenue and the south western corner of the subject site) and the lowering of the Hawker Avenue footpath, is submitted to and approved by Council.

Before the development is occupied, application must be made to the Registrar of Titles to enter a memorandum of the Agreement on Title to the land and the owner must pay the costs of the preparation and execution of the Agreement and entry of the memorandum on Title.

1. Once commenced, the development must be continued and completed to the satisfaction of the Responsible Authority.
2. Before the development is occupied a rain water tank must be provided on the land to the satisfaction of the Responsible Authority.
3. All dwellings that share dividing walls and floors must be constructed to limit noise transmission in accordance with Part F(5) of the Building Code of Australia.
4. All security alarms or similar devices installed on the land must be of a silent type approved by the Standards Association of Australia and be connected to a registered security service.
5. All outdoor lighting must be designed, baffled and/or located to ensure that no loss of amenity is caused to adjoining and nearby land to the satisfaction of the Responsible Authority.
6. Before the development is occupied, an automatic external lighting system capable of illuminating the entry to each unit, access to the basement and car parking spaces and all pedestrian walkways must be provided on the land to the satisfaction of the Responsible Authority.

The external lighting must be designed, baffled and/or located to ensure that no loss of amenity is caused to adjoining and nearby land, to the satisfaction of the Responsible Authority.

1. With the exception of guttering, rainheads and downpipes, all pipes, fixtures, fittings and vents servicing any building on the land must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
2. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.
3. The plant and equipment proposed on the roof of the building must be screened in a manner to complement the appearance of the building to the satisfaction of the Responsible Authority.
4. Provision must be made for the storage and collection of garbage, bottles and other solid wastes in bins or receptacles, to the satisfaction of the Responsible Authority.
5. The waste storage/collection area must not be used for any other purpose and must be maintained in a clean and tidy condition, and free from offensive odour, to the satisfaction of the Responsible Authority.
6. Before the development starts, a Waste Management Plan, to the satisfaction of the Responsible Authority, and demonstrating the operation of the garbage and recyclables storage area must be submitted to the Responsible Authority.

The plan/documentation must demonstrate the means by which garbage and recyclables will be stored on the site and must clearly detail: what waste services will be provided (i.e. cardboard, paper, plastic and metals recycling or comingled waste, general waste, hard rubbish and organic waste etc), types of bins, types of collection vehicles, frequency of collection, times of collection, location of collection point for vehicles, arrangements to ensure collection vehicles exit the site in a forwards manner, location of on-site bin storage, location of bins for collection, appropriate ventilation within the bin on-site bin storage, bin washing facilies and any other relevant matter.

1. Provision must be made on the land for letter boxes and receptacles for newspapers to the satisfaction of the Responsible Authority.
2. No goods, equipment, packaging material, or any other material/object must be stored, or left exposed, outside a building so as to be visible from any public road or thoroughfare, to the satisfaction of the Responsible Authority.
3. Before the development starts, a Sustainable Design Assessment (SDA) detailing sustainable design strategies to be incorporated into the development to the satisfaction of the Responsible Authority must be submitted to, and approved in writing by the Responsible Authority. The SDA must outline proposed sustainable design initiatives within the development such as (but not limited to) energy efficiency, water conservation, stormwater quality, waste management and material selection. The SDA must be accompanied by a report from an industry accepted performance measurement tool.

The development must be constructed in accordance with the requirements/ recommendations of the SDA to the satisfaction of the Responsible Authority.

1. Before the commencement of the development, a detailed Water Sensitive Urban Design (WSUD) Plan must be submitted to the satisfaction of the Responsible Authority and be approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must show:
   • (a) The type of WSUD stormwater treatment measures to be used;
   • (b) The location of the WSUD stormwater treatment measures in relation to buildings, sealed surfaces, neighbouring properties and landscaping areas;
   • (c) Design details of the WSUD stormwater treatment measures, including cross sections, materials, plants and drainage directions;
   • (d) A construction and maintenance schedule.

The plans must be accompanied by a report from an industry accepted performance measurement tool.

The WSUD treatments as shown on the endorsed WSUD Plan must be completed to the satisfaction of the Responsible Authority before the development is occupied and/or the use starts or at such later date as is approved by the Responsible Authority in writing.

The WSUD treatments as shown on the endorsed WSUD Plan must be maintained in accordance with the endorsed WSUD Plan to the satisfaction of the Responsible Authority.

1. Before buildings and works start, a detailed landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. The landscape plan must be prepared by a suitably qualified person and must incorporate:
   • (a) Details of the plantings and layout of the communal open space area on level 1, including location of seating and other facilities;
   • (b) A planting schedule of the proposed vegetation, including the botanical name, common name, size at maturity, pot size and quantities of all plants. The schedule must contain a diversity of plant species and forms.
   • (c) Annotated graphic construction details showing all landscape applications and structures including retaining walls, raised planter beds and decking.
   • (d) Details of the maintenance and irrigation of the plantings within the communal open space area.
2. The landscaping as shown on the endorsed landscape plan must be completed to the satisfaction of the responsible authority before the development is occupied or at such later date as is approved by the responsible authority. No later than seven days after the completion of the landscaping, the permit holder must advise Council in writing, that the landscaping has been completed.
3. The landscaping shown on the endorsed landscape plan must be maintained, and any dead, diseased or damaged plant replaced in accordance with the endorsed landscape plan to the satisfaction of the responsible authority.
4. Before the development starts, an acoustic assessment of the development, to the satisfaction of the responsible authority, must be submitted to the responsible authority. The assessment must be prepared by a suitably qualified acoustic engineer and must detail recommended treatments of the development and/or the adoption of appropriate measure to ensure that noise emissions from the development (including the operation of plant) do not impact adversely on the amenity of dwellings within the development.
5. Boundary walls facing adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.
6. Protective kerbs or the like must be installed to the satisfaction of the Responsible Authority to prevent vehicle damage to the fences of adjoining properties.
7. External lighting of the areas set aside for vehicle waiting, access lanes and driveways must be designed, baffled and located to the satisfaction of the Responsible Authority.
8. The car parking area must be lit to the satisfaction of the Responsible Authority. All lights in the car park must be designed, located and baffled to prevent loss of amenity to adjoining and nearby land, to the satisfaction of the Responsible Authority
9. Any modification to existing infrastructure and services within the road reservation (including, but not restricted to, electricity supply, telecommunications services, gas supply, water supply, sewerage services and stormwater drainage) necessary to provide the required access to the site, must be undertaken by the applicant/developer to the satisfaction of the relevant authority. All costs associated with any such modifications must be borne by the applicant/developer.
10. Prior to commencement of the development:
    • (a) Plans detailing the construction and surfacing (including drainage) of the carriageway easement, road opening, and footpath required footpath lowering, must be submitted to and approved by Council.
    • (b) Works associated with the above must be constructed and surfaced in accordance with the approved plans.

All works must be to the satisfaction of the responsible authority, and costs must be borne by the applicant.

[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] RF Nominees Pty Ltd v Darebin CC [2015] VCAT 816.

[3] See eg Zumpano v Banyule City Council [2016] VSC 420.

[4] RF Nominees Pty Ltd v Darebin CC [2015] VCAT 816, [33].

[5] For example, if the living area was depicted by a circle with a minimum width of 3.3m or 3.6m then the area of that circle would be below 10m2 and 12m2 respectively.