A Genser & Associates (Aust) Pty Ltd v Yarra CC [2012] VCAT 695

1. David Tregambe is joined as a party.
2. For all the plans included in the permit application, substitute the following plans -
   • Prepared by: A Genser & Associates Pty Ltd Architects
   • Titled: Proposed Residential Development at 381 Punt Road Richmond Job no 2850
   • Drawing Nos: 00, 01 Rev D, 02 Rev D, 03 Rev D, 04 Rev D, 05 Rev D, 06 Rev D, 07 Rev D, 08 Rev D, 09 Rev D, 11 Rev D, 12 Rev E, 13 Rev E, 14 Rev E, 15 Rev E, 16 Rev D, 17 Rev D, 18 Rev D, 19 Rev D, 20 Rev B, SA Rev A, DR Rev A, SS01 Rev A, SS02 Rev C, SS03 Rev C, S-08 Rev A, S-09 Rev A, S-10 Rev A, S-11 Rev A, S-12 Rev A, S-13 Rev A, S-14 Rev A
   • Dated: 24 June 2011 (01 to 20 Rev D inc) & 30 August 2010 (SA, DR, SS01 Rev A to S-14 Rev A inc)
3. The decision of the Responsible Authority in relation to permit application no. PLN10/1037 is set aside.
4. A permit is granted in relation to land at 379-387 Punt Road, Cremorne. The permit will allow -
   • Construction of dwellings and an office, and a reduction in the car parking requirements, in accordance with the endorsed plans
5. The permit is subject to the conditions contained in Appendix A to these reasons.

Mr Ian Pitt SC, Best Hooper (14, 15 & 16 May 2012) and Ms Tania Cincotta, Best Hooper (17 May 2012). They called the following expert witnesses:

• Mr Andrew Biacsi, town planner, Contour Consultants Australia Pty Ltd
• Ms Charmaine Dunstan, traffic engineer, Traffix Group Pty Ltd
• Mr Tim Biles, urban designer, Message Consultants Australia Pty Ltd
• Mr Jan Talacko, environmental scientist, Ark Resources Pty Ltd

Mr Chris Goss, architect, Orbit Solutions Pty Ltd prepared photomontages but he was not called to give evidence.

Mr Paul Connor of counsel, instructed by Maddocks. He called the following expert witnesses:

• Mr Andrew O'Brien, traffic engineer, O'Brien Traffic
• Mr Craig Czarny, urban designer, Hansen Partnership Pty Ltd
• Mr Simon McPherson, architect & urban designer, SJB Urban Pty Ltd

Mr James Livingston, town planner, for David Tregambe and Brett McGuirk & Hannah Rouse.

Ms Belinda Donaldson, in person (14 & 15 May 2012).

Mr Phillip Vlahogiannis, in person (14 & 16 May 2012).

No appearance on behalf of other Respondents.[1]

In broad terms, the proposal is a mixed use development comprising 91 dwellings and an office in an eight-storey building.

The dwellings include five three-storey townhouses each with two-bedrooms plus study (plus roof terraces) fronting Huckerby Street. Each townhouse has two tandem car spaces for residents. The townhouses are setback 1.55 m from Huckerby Street, effectively widening that street by 1.55 m. In an eight-storey tower behind the townhouses are 42 one-bedroom apartments, 27 one-bedroom plus study apartments, and 17 two-bedroom apartments. The tower fronts and is setback 1 m from Punt Road. The tower rises to a maximum height of 27.6 m. There is a 490 sq m office at ground level fronting Punt Road. A three-level basement provides 86 car spaces for the apartments, 13 spaces for apartment visitors and 10 spaces for office staff. There is a total of 109 spaces in the basement and, together with 10 spaces for the five townhouses, 119 on the subject land. Access to the basement is provided from a ramp on the corner of Rout Street and Huckerby Street. There is storage for 118 bicycles (106 for residents and office staff, and 12 for visitors) on the ground level

Application under section 79 of the Planning and Environment Act 1987

Residential 1 Zone (R1Z); Design and Development Overlay Schedule 2 (DDO2) (Main Roads and Boulevards); City Link Project Overlay (CLPO); Special Building Overlay (SBO)

The land adjoins land in a Road Zone Category 1 (RDZ1) (Punt Road)

Clause 32.01-4 (buildings or works for two or more dwellings on a lot in R1Z)

Clause 52.06 (reduction in car parking requirements for office)

Clause 63.05 (buildings or works for an existing office section 3 use in the R1Z)

Clauses 10, 11, 13, 15, 16, 17, 18, 19, 21, 21.02, 21.03, 21.04, 21.05, 21.06, 21.07, 21.08, 21.10, 22.03, 22.05, 22.10, 22.13, 52.06, 52.34, 52.35, 52.36, 63 & 65

The land is on the east side of Punt Road, about 100 m south of Swan Street. It is on the south-east corner of Rout Street. The rear boundary abuts Huckerby Street. It is rectangular in shape with a frontage of about 53.3 m to Punt Road and an abuttal to Rout Street and Huckerby Street of about 36.6 m and 53.3 m (respectively). The area of the land is about 1,968 sq m. There are five separate parcels comprising the land. There is a double-storey and single-storey building on the land used as an office and dwellings and there is open car parking at the rear. The land falls about 0.5 m from west to east and about 1 m from north to south.

1. The north-west section of Cremorne (NW Cremorne), bounded by Swan Street, Punt Road, Kelso Street and Cremorne Street, is a tightly packed, largely residential, inner suburban area.
2. The high volumes of traffic on Punt Road create a hostile environment along that road and functionally NW Cremorne tends to turn its back on Punt Road. There are few road connections to Punt Road into or out of NW Cremorne. Many of the narrow roads are not much more than lanes and traffic restrictions are designed to limit penetration of non-resident traffic from Cremorne Street.
3. NW Cremorne has many advantages including convenient access to -
   • Melbourne's CBD (about 2 km).
   • The Swan Street major activity centre (the Swan Street MAC) (about 400 m to its retail core).
   • Excellent public transport (including about 150 m to the Richmond Railway Station).
   • The parklands and sports facilities on the west side of Punt Road.
4. This is a proceeding mainly about the challenges of constructing a larger building along Punt Road in NW Cremorne and whether it properly responds to the physical and policy context of Punt Road and the more sensitive residential hinterland to the rear. The key issues for consideration are strategic policy, built form & design quality, amenity impacts and traffic & parking.

1. Strategic policy in the Yarra Planning Scheme (the scheme) and the built form design response do not support the grant of a permit in respect of the amended application.
2. The scale of the tower component is the main concern. It has broad 55 m long east and west-facing facades. The tower overpowers its surrounds, including land to the south and east, and unreasonably imposes itself into Punt Road and into Gosch's Paddock on the opposite side of Punt Road.
3. There are aspects of the design response that we support, particularly the location of the tower close to Punt Road with a setback of about 14 m to Huckerby Street at the rear, and the three storey[2] townhouses as a transitional element.
4. If the tower was reduced to six storeys and appropriate conditions included dealing with a range of other matters, the proposal deserves a permit. We have therefore granted a permit subject to conditions requiring these changes. Our reasons follow.

1. On 22 September 2011, A Genser & Associates (Aust) Pty Ltd (the Applicant) applied to the Yarra City Council for a permit to construct dwellings and an office in a twelve-storey building on the subject land.[3] The Council received 89 objections on a variety of grounds against the granting of a permit.
2. The Applicant has applied to the Tribunal to review the Council's failure to decide the permit application within the prescribed period. The Council's failure to decide is a deemed refusal of a permit. After the Applicant applied to the Tribunal, the Council resolved that had the Application not been filed it would have refused a permit on four specified grounds.
3. After the Council made that resolution, the Applicant filed with the Tribunal an application to amend the permit application by substituting plans. The substituted plans incorporate several design changes to the proposed building, including a reduction in the number of storeys from twelve to eight and a different architectural treatment to the facades.
4. Before the start of the hearing, the Council and some of the Respondents confirmed their opposition to the grant of a permit in respect of the amended application.[4] At the start of the hearing, no party opposed the application to amend the permit application and we amended the application accordingly.

1. We have referred, above, to some of the advantages of the physical context of the subject land.
2. It suffices to state that around the subject land is mainly fine grain residential development of between one and three storeys with minimal street setbacks. Non residential use in NW Cremorne is limited and includes a car wash on the corner of Swan Street and Punt Road, car repairs in Wellington Street, an office on the subject land, and a petrol filling station in Punt Road on the corner of Blanche Street.
3. South of Kelso Street is a pocket of former industrial land around the east bound entrance to the Monash Freeway. It includes a five storey (plus semi-basement storey) office on the corner of Kelso Street and Punt Road, the Barrett Burston silos (about 42 m high) on top of which is fixed the iconic Nylex sign, and the ten-storey ERA apartment building on the corner of Cremorne and Balmain Streets.

1. There is considerable State and local policy that is relevant to the proceeding. We do not intend to recite or discuss the voluminous nature of this material. We will instead make brief reference to the main threads and draw our conclusion.
2. The subject land is not in, but is near, the Swan Street MAC.[5] We also find the subject land is a strategic redevelopment site (SRS) because, although not expressly defined in the scheme as such, it meets the relevant scheme criteria of being within easy walking distance to a MAC, well served by public transport, and can provide ten or more dwellings. We would also give some weight to the proposed consolidation of five lots to form the subject land in making this finding.
3. The proposal is consistent with State policy for new housing to be located near a MAC and on land in a SRS, and for higher densities and mixed use developments near railway stations.[6]
4. Local policy is more nuanced, complex and evolving. The three main policy topics relate to development of a SRS, development in and around the MAC, and development along Punt Road.

1. Vision statements contemplate areas of higher development in the municipal district, including on land in a SRS even if the land is outside a MAC.[7] Land in a SRS 'should generally be no more than 5-6 storeys' unless a proposal 'can achieve specific benefits' such as (relevantly in this proceeding) -
   • Significant upper level setbacks.
   • Architectural design excellence.
   • Best practice environmental sustainability objectives in design and construction.
   • Positive contribution to the enhancement of the public domain.
   • Provision of affordable housing.[8]
2. It must be remembered that this provision is policy and other benefits may be relevant in particular circumstances and that none of them are a pre-condition to approving a building taller than five to six storeys.[9]
3. In relation to upper level setbacks, we summarise by stating that although there are appropriate setbacks in the tower form from Punt Road, Huckerby Street and Rout Street, the setbacks to adjoining land to the south at 389-391 Punt Road on which is a two-storey building containing twelve apartments are not 'significant'.
4. In relation to design issues, we deal with this in the section headed 'built form & design quality' later in these reasons.
5. In relation to ESD, we do not consider it a specific benefit. We accept Mr Talacko's opinion that an average 6.9 star rating per apartment and an average 6 star rating per townhouse is achievable. However, the design changes needed to achieve that rating are not yet resolved and, even if made, Mr Talacko confirms the proposed achieves an acceptable ESD standard and no higher.
6. The contribution to public realm enhancement is not a special benefit. It is largely confined to enhancements to Huckerby and Rout Streets.[10]
7. In Huckerby Street, the carriageway is widened on the west side along the whole of the east boundary of the subject land by a minimum of 1.55 m to an overall minimum of 5.4 m. While this creates space for better two way flow, it is necessary to enable vehicles to access the townhouse garages and is therefore not a significant enhancement.
8. In Rout Street, the proposal is constructed to the Rout Street boundary and removes kerbside parking on the south side and replaces it with a narrow footpath. The Council opposes this change and the Applicant could not proceed to implement it without the Council's consent. The Council prefers a new ground level footpath on the subject land along this frontage. In these circumstances, the Rout Street changes could also not be characterised as an enhancement.
9. In relation to affordable housing, there is nothing in the proposal that is a special benefit. The dwellings range in size between one bedroom and two bedroom plus study plus generous roof terrace. Each apartment is provided with a basement car park and each townhouse with two garage car spaces. They aim to meet current market demand, not a special market for lower cost housing.
10. In summary, the proposal does not adequately respond to SRS policy because it is two to three storeys higher than the policy aspiration and the 'special benefits' in the proposal do not justify the additional storeys.

1. Local policy for development in and around the MAC is evolving. The Council adopted a policy in 2007 for Cremorne called the Cremorne and Church Street Precinct Urban Design Framework (UDF). It supported, relevantly, site consolidation and taller buildings along Punt Road to respond to the hostile traffic conditions and the opportunities for city and park views. Subject to superior design quality and public domain improvements, there could be building heights of four to five storeys along Punt Road set above a two to three storey base and a transition to the rear of two storeys.[11]
2. Implementing some of the policy outcomes of the UDF is on hold pending finalising of the Swan Street MAC structure plan (the structure plan).
3. Council has prepared, but not yet adopted, the structure plan. It includes the MAC and broad areas surrounding the MAC, including NW Cremorne. The public will soon have an opportunity to comment on the draft structure plan. The future character statement in the draft structure plan encourages an intensification of development along Punt Road to respond to the hostile traffic conditions and take advantage of views, provided new buildings are respectful of the sensitivity and heritage values of the residential hinterland and encourage ground level active uses. It supports the building height outcomes in the UDF.
4. We are unable to give the UDF and structure plan any weight as they are not seriously entertained planning proposals. However, we acknowledge they reinforce the policy threads relating to development of a SRS, referred to above.

1. It is policy to improve the built form character and the consistency of the built form along Punt Road.[12] Otherwise, most of the policy for development along Punt Road is referred to above. However, in this section of the reasons, we briefly refer to DDO2, some of the witness evidence and the landmarks policy.
2. Care needs to be taken with applying DDO2 because it is a provision of the scheme (not a policy) that relates to many main roads in different contexts in the municipal district. For example, it applies to roads through business and industrial areas, as well as those (as in this case) dividing largely residential areas from State-significant sports precincts outside the municipal district.
3. DDO2 again emphasises the importance of design and quality architecture. In a residential context, it also has an objective 'to maintain and where needed, create, a high level of amenity to adjacent residential uses through the design, height and form of proposed development'.[13] The proposal does not adequately respond to this objective, particularly in the relation to the south interface. We deal with this more thoroughly under amenity issues later in these reasons.
4. In relation to the witness evidence, Mr Biles' opinion is that there is an opportunity to transform this section of Punt Road into a higher amenity boulevard lined with well designed mixed use built form of at least eight storeys. He drew our attention to boulevards in Barcelona, Spain. We do not give this opinion significant weight in this proceeding because:
   • It is not soundly based in existing policy.
   • It relies on the more robust five or six-storey built form to the south on the corner of Kelso Street and ten-storey built form in Cremorne Street. Only the first of these abuts Punt Road and its context is very different, being in a non-residential area, and adjoining the silos and Monash Freeway overpass.
   • We are not persuaded the amenity of the Barcelona example is readily achievable because Punt Road must continue to carry existing high traffic volumes and has a much narrower footpath.
   • It relies on adopting the advice to the Council of its external urban design consultant, Mr Rob McGauran, about building height. Little weight can be given to that reliance because Mr McGauran did not give evidence in this proceeding.
   • On our inspection of the subject land from Gosch's Paddock on the west side of Punt Road, we did not agree with Mr Biles' opinion that a six-storey building would 'barely be seen ... above the trees lining the west side of Punt Road which are approximately 15-20 m in height'.[14] From a viewing point about 150 m from Punt Road on our inspection, the proposal would be visually dominant, irrespective of the existing trees.
5. In relation to the landmarks policy, the proposal fails to maintain the prominence of the Nylex sign as the sign would be obscured from various vantage points to the north, including parts of the Richmond station platforms. This issue was not in serious dispute between the parties. Having regard to the distance between the subject land and the sign, and the relatively narrow obscured viewing line just from the immediately north of the subject land, any non-compliance does not warrant refusal of a permit or significant modifications if a permit was granted.

1. We find the proposal is broadly consistent with an evolving policy of qualified support for stronger built form along Punt Road. The need to respond to and transition to the fine-grained (including narrow streets) residential hinterland to the rear means built form needs to be tempered. SRS policy is for a maximum of six storeys unless there are special benefits in a proposal. Punt Road policy, as it currently exists, is not significantly different. Those benefits are minimal in the proposal and do not justify approval for an eight-storey building.

1. The approach to how the varying built forms juxtapose themselves to each other and to their context is to provide a taller built form edge to Punt Road and a lower scale transitional element to Huckerby Street and the residential hinterland. The Council and Respondents generally agree with that approach. So do we.
2. However, all the planning and urban design witnesses also agreed that all four interfaces warrant close examination. Mr Czarny submitted that the building is not designed in the round. Although we agree that the built form requires design consistency, each interface presents individual challenges that must be considered.

1. Mr McPherson's opinion was that the immediate street façade should be further articulated vertically providing a finer grain, although the other experts appeared to be generally satisfied. Huckerby Street is a rear access lane at this time though newer built forms are emerging with setbacks to widen it and, over time, it will take on a new life.
2. We find this predominately three-level form, with a subservient fourth level, is an appropriate interface to Huckerby Street and a visual transition to the higher form behind it and there is no reason to interfere with it.
3. We understand Mr McPherson's opinion about the façade design, but we consider the vertical divisions between the townhouses both within the horizontal upper façade element and below it, to be sufficient to break down the mass and indeed, on the (better rendered) streetscape elevation on drawing no SS01, we observe that this division is illustrated.

1. This part of the building presented us with the biggest challenge, not only because of the divergent witness evidence but also because our decision may influence future decisions for this section of Punt Road streetscape. The already completed building at 449 Punt Road is in a different setting, being in the foreground of the silos and the freeway. The subject land is very isolated (because of the currently smaller scale of its neighbours) and highly visible.
2. To resolve the diversity of submissions and evidence about building height and architectural quality, we were greatly assisted by the site inspection. We viewed the subject land from Richmond station, from the freeway, and from short and long range points across Gosch's Paddock. We viewed the building at 449 Punt Road (and kept in mind that a permit had been granted to construct an additional level), the silos and the trees in the parklands to determine how the building will relate to them. We also viewed Mr Goss's montages in their actual context.
3. The subject land abuts a hostile main road environment. Irrespective of the arguments about drivers whizzing by and not paying attention to the built form along Punt Road, this streetscape will be a very important marking edge for the City of Yarra and is and will continue to be highly visible from the public domain.
4. The opinion of the Applicant's and the Council's witnesses was an eight-storey building was possible if it was architecturally excellent. However, our finding is that an eight-storey building in this location would be too high irrespective of its architecture. We consider local policy, preferring a five to six storey building, is appropriate.
5. Given the 55 m length of this building in its context, a six-storey building is appropriate for the subject land. We agree with Mr Biles that this is a 'pioneer' project for this section of Punt Road (with the possible exception of the building at 449 Punt Road) and, given the dominance of the subject land, this building may influence decisions about future built form in this streetscape.
6. From our longer range views of the subject land in its context, including the building at 449 Punt Road, we make the observation in passing that there would be benefits in a consistent height in built form along the entire streetscape as an edge to the sports precinct and the city. Higher built form at the Swan Street and freeway ends of the streetscape to mark the corners should not be precluded, subject to assessment of individual merits.
7. Mr McPherson and Mr Czarny considered the building an interesting concept but insufficiently resolved, particularly its west façade. Mr Biles and Mr Biasci supported the concept and the design resolution. The façade was not shown correctly on the plans and, at our request, the Applicant provided an altered façade layout during the hearing. This was not a serious adverse factor to the proposal because, due to its repetitive nature, it did not have a significant impact on the overall appearance of the building.
8. In many different proceedings, we hear submissions about the notion of design excellence and design acceptability. Architecture, as art, is about opinion and the very subjectivity of design allows the Tribunal to think about design issues very carefully. Architecture, however, is not just about building appearance. It is about the complex cocktail of design considerations that contribute to the ultimate built space and form from the satisfaction of planning policy, through the resolution of space planning and building layout, access, technical resolution, user comfort and amenity, to name a few. Indeed, a highly resolved building may assume a nondescript architectural presentation and conversely, an exciting visual solution may be poorly resolved and technically flawed.
9. Mr Czarny preferred a podium and tower, or at least a base to anchor the building. Mr McPherson supported the concept but that it needed more design resolution. We respect these divergent views from the Council's expert witnesses for their impartiality.
10. We do not agree that a podium, or even an anchor created by a small setback, is appropriate in this instance. The design illustrates that a flat façade is the best solution for this 'city edge' streetscape, particularly from its long range views from which the building will be most appreciated.
11. We are also convinced that the light 'cellular like' façade floating atop its fine sloping fascia represents a delicate and a high quality architectural outcome. Whilst there was some criticism by Mr McPherson of where it started and where it finished (as unresolved) we concluded that this is one of its redeeming features, that is, it just starts and stops as if it were a piece of mesh cut to the profile. It is an honest approach.
12. We also add that, when the Applicant gave us the altered and corrected façade layout elevations during the hearing, the use of precast concrete was clarified rather than 'feature panel (white)'. We see this as a positive outcome due to the monolithic properties of concrete.

1. We agree with Mr McPherson and Mr Czarny that the eastern façade is less resolved and more brutal. The lowering the building by six metres and effectively removing two of the horizontal masonry like balcony elements will ameliorate these factors and this elevation of the taller building, will be acceptable.

1. We have dealt with the interface issues of these elevations elsewhere in these reasons. Nonetheless, we add that these elevations would benefit from some lightening in colour. The black horizontally textured walls may lose their texture in shadow. Additionally, these walls are very tall as presented to Rout Street and Cremorne Court and we believe to lighten them would be a polite gesture to these interfaces. These elevations should include two varying concrete colours and two varying textures.

1. There is no unreasonable overlooking from the east-facing balconies of the tower element of the rear secluded private open space (SPOS) of the dwellings to the east fronting Wellington Street, including 18 & 20 Wellington Street that we inspected. This is because the distance is well in excess of the 9 m ResCode standard.
2. There is also no unreasonable overlooking from the east-facing windows in the second level bedrooms and third level living rooms in the townhouses. This is because there are intervening on-boundary garages, the distance is a little over 9m and there is screening vegetation. The roof terraces are screened with east-facing walls at least 1.7 m high so there is also no overlooking from this level.

1. To the east, there is no unreasonable overshadowing of SPOS at 18 & 20 Wellington Street and other land fronting Wellington Street, given compliance with ResCode standards.
2. To the south, the tower element has a 11 m long and seven-storey high boundary wall on the south boundary. It also has a 11 m long and seven storey high section of wall setback 2.5 m off that boundary, to the west of the on-boundary section. The eighth storey is setback between about 6 m and 7 m from that boundary.
3. The shadow impact on the two storey apartments abutting to the south at 389-391 Punt Road is not easy to assess, having regard to the U-shaped presentation of that building to Punt Road. No SPOS is involved, but we need to consider the shadow impacts on the habitable room windows in the two-storey north-facing wall of both the south and north wing of the building.
4. The north wall of the north wing is setback about 1.6 m from the common boundary with the subject land. There are a total of eight bedroom and kitchen windows in the six dwellings abutting this wall. The total shadowing of all these windows between 9 am and 3 pm at the equinox (but for possibly the two westernmost bedroom windows after 2 pm) is a severe but acceptable outcome because they are not living rooms and any multi-level development of the land (regardless of setback) would impact those windows.
5. The north wall of the south wing is more sensitive. It is setback about 16 m from the common boundary with the subject land. Living room windows face north into the common courtyard. At the equinox, both levels on the north wall are not in the shadow of the north wing between 9 am and 3 pm. The proposal results in windows at both levels being progressively impacted from 10 am at the equinox so that by midday all of them are in shadow until some time after 1 pm. The impact is then progressively eased so that by 2 pm the windows are not in the shadow of the proposal.
6. In assessing this impact, we have considered this is a residential zone to residential zone interface, that shadow to north-facing habitable room windows is not specifically included in the Higher Density Guidelines and that about five of the twelve apartment owners in this building objected to the Council against the grant of a permit.[15] We have also considered that policy supports new buildings of five to six storeys along Punt Road.
7. In this latter respect, Mr Biles urged us to accept that 389-391 Punt Road was a development site having regard to policy, the age of the building (about 70 years), and the statements by several of the owners to him at meeting to discuss the proposal that they were prepared to sell their apartments for redevelopment of the land. We give no weight to this hearsay evidence. Title particulars tendered by Mr Connor show each apartment is separately owned. The building is in good repair, based on our external observations at our inspection. For all these reasons, we do consider it a development site.
8. Weighing up all these factors, we find that the shadow impact on the north facing habitable windows in the south wing is a severe amenity impact. Our decision to require removal of two storeys in the tower will overcome that impact.

1. Visual bulk is a significant concern. We have considered Mr Goss' photomontages. We have also inspected the rear yards of 18 & 20 Wellington Street and the surrounding area, including from Gosch's Paddock on the opposite side of Punt Road and from Punt Road south near the freeway.
2. We have concluded that the proposal is too tall and bulky. It is overbearing from land closer to the east and south of the subject land. The relatively unrelieved south façade of the tower, the significant width and length of the tower, and the utilitarian east façade of the tower, all contribute to an unsatisfactory response.
3. If two storeys were deleted from the proposal, it would be a much more comfortable fit into Punt Road and NW Cremorne.

1. We agree with the Council that the local street network in the area is very constrained and is characterised by use of a number of lanes and one-way streets. Vehicle access can be difficult to navigate. Access must essentially be from within NW Cremorne rather than Punt Road. The use of small streets is therefore inevitable and reasonable use of those streets cannot be refused on traffic and parking grounds. Having regard to current planning policy for more development along Punt Road, parking cannot be the 'tail' that wags the planning policy 'dog'.
2. There is little on-street visitor parking in NW Cremorne. The Council was not opposed to the numeral adequacy of the on-site car parking provision for the dwellings and office, but was opposed to the access and parking arrangements and the amenity and safety impact on surrounding streets.
3. The Council relied on Mr O'Brien's opinion in submitting that the respective spaces for dwellings, visitors and office staff were insecure and there would be problems with particular vehicles being parked in the wrong area. We prefer the opinion of Ms Dunstan that this is a management issue, able to be controlled by a card or intercom system to the Council's satisfaction.
4. The Council also relied on Mr O'Brien's opinion in submitting that it would be unsafe for townhouse vehicles to reverse into Huckerby Street. Having regard to Huckerby Street's function as a rear vehicle access lane for many dwellings and the low speed environment, we do not share this concern. Appropriate additional width has been provided adjoining the townhouses garages for entering and reversing.
5. There was a disagreement between Mr O'Brien and Ms Dunstan about access routes to the subject land and the effect of this on the surrounding traffic environment. Mr O'Brien's opinion is that about 15% of all entering movement will be from the south from Cremorne Street, Parkins Lane and finally Wellington or Huckerby Streets. Ms Dunstan considers that virtually all entering movements will be from the north and Wellington and Swan Streets intersection and then west on Rout Street. We navigated these access routes on our inspection and having regard to the convulated nature of Parkins Lane, we prefer Ms Dunstan's opinion.
6. Consequently, the overall traffic impact on NW Cremorne will not, in our view, be as adverse as the Council anticipates. We consider the Applicant has adopted the preferred approach in minimising use of the smaller streets primarily by entry from Swan, Wellington and Rout Streets and exit primarily via Rout (to Punt Road) or Huckerby (north of Rout) to Wellington and Swan Streets.
7. The immediate road abuttals will require reconstruction. Huckerby Street is to be widened for townhouse vehicle access. The primary pedestrian access point for the apartments and office is on the corner of Rout Street and Punt Road.[16] This means there will be significant increase in pedestrian traffic along Rout Street back towards the MAC and the railway station. At the moment there is a small about 800 mm wide footpath on the north side of Rout Street (obstructed by a pole) and parking for about five vehicles (including one disabled space[17]) on the south side.
8. The Applicant proposes to construct a 1 m wide footpath on the south side of Rout Street and remove the parking spaces. The Council opposes the removal of the spaces and, even if we grant a permit, the way the Applicant proposes to reconstruct Rout Street could not be completed without the Council's consent. The Council wants the Applicant to construct a 1.8 m footpath on the subject land at ground level.
9. We intend to include permit conditions that require the reconstruction to the Council's satisfaction. However, on the evidence and submissions in this proceeding, we agree with Ms Dunstan that a shared zone without parking is a preferable outcome. Hence, we will not require a new footpath on the subject land.
10. The proposal supports heavy use of bicycles by residents, visitors and staff. The basement includes significant space for bicycles. Having regard to the available spaces, the bicycles will need to be vertically mounted. Ms Dunstan conceded a one-way system in the basement (rather than the proposed two-way system) would probably be preferable to improve access to the ramps, and we will include a condition to require this.
11. The Council was opposed to the location of north-east corner of the townhouses and concern that vehicles could not enter the basement from the north or south without risk of building damage. We rely on Ms Dunstan's swept path diagrams to be satisfied this will not be the case for vehicles up to standard family sedan size.

1. The parties made detailed submissions about the Council's draft permit conditions. We have modified the Council's draft in a number of ways that we do not intend to individually record. We briefly mention that we have excluded a green travel plan condition in line with the Tribunal's reasoning in Merri Merri Developments Pty Ltd v Darebin CC,[18] and have retained the standard two year period for starting the development.

1. The scheme requires us to consider whether the proposal will achieve an acceptable outcome.[19] It also requires us to balance competing and conflicting policies in favour of net community benefit and sustainable development to achieve an acceptable (if not ideal) outcome for the community.[20]
2. Our distillation of policy is that a larger building on the subject land is supported having regard to the proximity to the MAC and to the subject land's status as a SRS, provided the design response respects the residential interfaces to the east and south and appropriately marks a new built form edge from a Punt Road and sports precinct viewpoint. The proposal does not adequately respond to this distilled policy and there are no special benefits or features in the proposal that warrant a taller and bulkier building than six storeys.
3. The decision of the Council will be set aside and a permit granted subject to conditions, including a requirement to remove two storeys in the tower element.

Construction of dwellings and an office, and a reduction in the car parking requirements, in accordance with the endorsed plans

1. Before the development starts, amended plans and documents 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 substituted by order of the Victorian Civil and Administrative Tribunal in Proceeding P295/2012 but further modified to show -

(a) Deletion of the whole of the fifth and sixth floors.

(b) The sub-station at the ground floor setback no less than 400 mm from the Rout Street boundary to provide a planter enabling the planting of a climber to soften the sub-station wall.

(c) Further vertical articulation of the façade of the townhouses facing Huckerby Street, generally in accordance with the streetscape elevation drawing no. SS01.

(d) The precast concrete panel oblique cellular façade design in accordance with the plans tendered to the Victorian Civil and Administrative Tribunal in Proceeding P295/2012 being drawings prepared by A Genser & Associates Pty Ltd Architects drawings nos. 12, 13, 14, 15, 17, 18 & 19 all revision E and the six undated drawings entitled '381 Punt Road, Cremorne' further illustrating the façade's features.

(e) Provision of highlight windows to each apartment in the western panel of the southern elevation.

(f) Reconfiguration of apartments to avoid entry doors being directly opposite each other.

(g) Screening of all north and east facing windows where within 9 metres of habitable windows or private open space of adjoining properties. Details of the proposed screens must be submitted, screens are to be permanently fixed to a height of 1.7 m above finished floor level or a suitable alternative.

(h) Screening of all terraces where within 9 m of habitable windows or private open space of adjoining properties. Details of the proposed screens must be submitted, screens are to be permanently fixed to a height of 1.7m above finished floor level or a suitable alternative.

(i) A 1.7 m high obscure screen, or suitable alternative mechanism to prevent inter-looking between dwelling balconies and terraces.

(j) The specification and location of all proposed external plant and equipment (including roof top plant and equipment, car park ventilation and individual air conditioning and hot water units). All plant and equipment must be screened to prevent views from the street and habitable room windows of nearby dwellings.

(k) Detailed drawings showing/confirming the lift overrun has been incorporated into the overall building design.

(l) An area set aside within the property boundaries for pits, meters and essential services.

(m) Details and provision of storage for each dwelling to be a minimum of 6 cubic metres.

(n) The recommendations of the Sustainability Report (27 April 2012) prepared by Ark Resources or equivalent measures must be implemented into the development to the satisfaction of the Responsible Authority with details submitted to the Responsible Authority demonstrating compliance with condition 9.

(o) all works recommended in the report of the professional acoustic engineer referred to in conditions 6, 7 and 8.

(p) A redesign of the basement consequential on condition 1(a) so that one car space per dwelling (other than the townhouses) and 0.14 visitor car spaces per dwelling and one storage unit per dwelling are provided in the basement.

(q) A redesign of the basement accessways to provide for one-way internal movement for vehicles.

(r) Demonstrate that adequate clearance height is achieved to the vehicle entrance, without damaging the first floor overhang.

(s) Plans to show the new locations of moved electricity poles.

(t) Width of bicycle storage area (resident) to be correctly shown as 2.7 m wide.

(u) Provision of an intercom system or card swipe system at the car park entry so that the number of apartment visitors or staff or visitor office vehicles that may enter the car park does not exceed the then-available vacant spaces set aside in the basement for those vehicles.

(v) Plans to show clearance lines to demonstrate that there is sufficient room at the top of the ramp to allow for the passing of vehicles.

(w) A mirror at the top and bottom of the internal ramps.

(x) An updated schedule of all external materials and finishes (including materials samples, colours and coloured elevations/perspectives). The schedule must show the materials, colour, finish and application methods (where relevant) of all external walls, roof, fascias, window frames, glazing types, cladding, doors. The schedule must include two varying and lighter colours and two varying concrete textures on the north and south elevations.

1. All development must accord with the endorsed plans. Any alterations must be approved in writing by the Responsible Authority.
2. Floor levels shown on the endorsed plan(s) must not be altered or modified without written consent of the Responsible Authority.
3. All new on boundary walls must be cleaned and finished to the satisfaction of the Responsible Authority.
4. Privacy screens, as shown on the endorsed plans, must be installed prior to occupation of the building to the satisfaction of the Responsible Authority and maintained to the satisfaction of the Responsible Authority thereafter.

1. Before the plans are endorsed, an updated acoustic report to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The report must be prepared by a suitably qualified acoustic engineer to show how the requirements of State Environment Protection Policy N-1 and relevant Australian Standards will be met and must prescribe -
   • (a) The form of acoustic treatment to -
     • (i) Protect dwelling occupants with a specific interface to the commercial tenancy below from associated commercial noise sources including but not limited to associated plant and equipment.
     • (ii) Protect all dwelling occupants from external noise sources from Punt Road.
   • (b) The mechanical plant equipment and ventilation mechanisms installed or constructed as part of the development.
2. No later than two months after any part of building is occupied, an updated acoustic report prepared by a suitably qualified acoustic consultant must be submitted to the satisfaction of the Responsible Authority demonstrating that the required level of noise attenuation has been achieved in accordance with condition 6 of the permit or, if not, set out the works that must be undertaken to achieve the required levels of noise attenuation.
3. The acoustic report recommendations must be incorporated into the development to the satisfaction of the Responsible Authority and where the recommendations are of an ongoing nature, such recommendations must be implemented and thereafter maintained to the satisfaction of the Responsible Authority.

1. Before the plans are endorsed, an updated ESD report 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 report must be prepared by a suitably qualified professional specifically addressing the following -
   • (a) Review of opportunity for reduced area of glazing and fixed external shading devices to the eastern façade of the townhouses.
   • (b) A reduction in the size of the north-facing bedroom window of the north-eastern apartment at each level.
   • (c) Provision of openable windows to common area corridors.
   • (d) Installation of an adjustable shading device to east-facing apartments from Level 2 and above.
   • (e) Incorporate horizontal shading devices and insulated spandrel glazing into the ground floor western façade up to 1.0m from the internal finished floor level.

1. Before any part of the building is occupied, the development must be provided with external lighting capable of illuminating access to each car parking space, bicycle parking space, store, rubbish bin, recycling bin, pedestrian walkways, stairwells, dwelling entrances and entry foyer. Lighting must be located, directed, shielded and of limited intensity so that no nuisance or loss of amenity is caused to any person within and beyond the site, all to the satisfaction of the Responsible Authority.

1. Before the development is completed or by such later date as is approved by the Responsible Authority in writing, a Landscape Plan prepared by a suitably qualified person to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. Once approved, the plan will then form part of the permit. The plan must address the planter areas at both the ground and first floor. The plan must be drawn to scale with dimensions with three copies provided and must show -
   • (a) The location, quantity and maturity of all proposed plants including communal areas.
   • (b) The botanical name of all new planting.
   • (c) Details of all proposed design features such as paths, paving and fencing for all communal areas.
   • (d) Details of proposed watering and ongoing maintenance methods for all proposed planting, including use of recycled water.
2. Before any part of the building is occupied or by such later date as is approved by the Responsible Authority in writing, the landscaping works shown on the endorsed plan must be carried out and completed to the satisfaction of the Responsible Authority.
3. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority including that any dead or diseased or damaged plants are to be replaced.

1. Before the development is completed, drainage of the site including landscaped and pavement areas must be provided all to the satisfaction of the Responsible Authority.
2. The permit holder must apply for a Legal Point of Discharge under Regulation 610 - Stormwater Drainage of the Building Regulations 2006 from Yarra Building Services Unit
3. Areas must be provided inside the property line and adjacent to the footpath to accommodate pits and meters. No private pits, valves or meters on Council property will be accepted.
4. All piping and ducting, other than for drainage above the ground floor storey of the building must be concealed.
5. Any storm water drainage within the property must be provided and be connected to the nearest Council pit of adequate depth and capacity (legal point of discharge), to Council's satisfaction under Section 200 of the Local Government Act 1989 and Regulation 610.

Reconstruction of Huckerby Street and Rout Street Road Pavement

1. Before any part of the building is occupied, the sections of road pavements of Huckerby Street and Rout Street abutting the land must be reconstructed (full-depth pavement) to the satisfaction of Council.
2. Before any part of the building is occupied, all infrastructure works undertaken by the owner of the land on the Public Highways of Huckerby Street and Rout Street must be carried out in accordance with Council's engineering standards and guidelines as required under the provisions of the Road Management Act 2004 to the satisfaction of the Responsible Authority or carried out in accordance with the engineering standards and guidelines of the Roads Corporation.

1. All waste from the commercial component of the development must be collected via a private collection service, to the satisfaction of the Responsible Authority.
2. Before any part of the building is occupied, the permit holder must submit an amended Waste Management Plan must be submitted to the satisfaction of the Responsible Authority in consultation with and to the approval of the Responsible Authority. The Waste Management Plan must be amended to show/include -
   • (a) The time and frequency of waste collection.
   • (b) Complete set of waste truck turning movements from Wellington Street, Huckerby Street, Rout Street and Punt Road to the land.
   • (c) The waste truck to be a medium rigid vehicle.
   • (d) Residents Waste Management Information Pack, including information on waste management practices, collection procedures, fee information, waste minimisation information, etc.
3. Once approved, the endorsed Waste Management Plan must be complied with at all times unless with the further written consent of the Responsible Authority.

1. Before any part of the building is occupied, a Car Parking Management Plan prepared by an appropriately qualified traffic consultant to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Car Parking Management Plan will be endorsed and form part of this permit. The Car Parking Management Plan must address all of the following -
   • (a) An internal signage plan distinguishing permanent parking areas from visitor parking areas, clearly marking all disabled spaces and height clearances.
   • (b) Mechanisms to ensure non-permanently allocated car parking spaces will only be available for visitors to the site.
   • (c) The number and location of the car parking spaces to each commercial tenancy and dwelling, and the clear identification of dwelling or commercial uses without any car parking.
   • (d) The number and location of car spaces for shared use, including time of shared use.
   • (e) The management of visitor car parking spaces and security arrangements for occupants of the development.
   • (f) Policing arrangements and/or formal agreements.
   • (g) A schedule of all proposed signage including directional arrows and signage, informative signs indicating location of disabled bays, small parking bays, bicycle parking, exits, restrictions, pay parking system.
   • (h) Details regarding the management of loading and unloading of goods and materials for the commercial and residential uses.
2. Before any part of the building is occupied or by such later date as is approved by the Responsible Authority in writing, the Car Parking Management Plan must be implemented to the satisfaction of the Responsible Authority and thereafter complied with at all time to the satisfaction of the Responsible Authority. No alterations may be made without the prior written approval of the Responsible Authority.

1. Once the development is completed, no fewer than the number of car parking spaces and the number of bicycle parking spaces shown on the endorsed plans must be provided on the land at all times, to the satisfaction of the Responsible Authority.
2. The area set aside for the parking of vehicles, together with the associated access lanes as delineated on the endorsed plan must, to the satisfaction of the Responsible Authority -
   • (a) be designed, provided and completed before the development starts;
   • (b) thereafter be maintained;
   • (c) be made available for such use at all times and not used for any other purpose;
   • (d) be properly formed to such levels that it can be used in accordance with the endorsed plan; and
   • (e) be drained and sealed with an all-weather seal coat.
3. Car spaces, access lanes and driveways must be kept available for these purposes at all times.
4. Bicycle access must at all times be clearly signed and marked, to the satisfaction of the Responsible Authority.
5. The development must provide for a minimum of two shower and change rooms for use by all employees of the commercial components of the development, to the satisfaction of the Responsible Authority.

1. Before any part of the building is occupied, alarms associated with the commercial premises must be directly connected to a security service and must not produce unreasonable noise beyond the premises, all to the satisfaction of the Responsible Authority.
2. The amenity of the area must not be detrimentally affected by the use or development, through -
   • (a) the transport of materials, goods or commodities to or from land;
   • (b) the appearance of any buildings, works or materials;
   • (c) the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, or
   • (d) the presence of vermin.
3. All buildings must be maintained in good order and appearance to the satisfaction of the Responsible Authority.
4. Noise emanating from the development, including plant and other equipment, must comply with the State Environment Protection Policy N-1 to the satisfaction of the Responsible Authority.

1. Before any part of the building is occupied, any damaged road(s) and footpath(s) and other infrastructure adjacent to the development site as a result of the construction works including but not limited to trenching and excavation for utility service connections must be reinstated to the satisfaction of the Responsible Authority.
2. Before any part of the building is occupied, any portions of redundant vehicle crossing must be broken out and removed and reinstated with kerbing and paving of the surrounding area to the satisfaction of the Responsible Authority.
3. Before any part of the building is occupied, the proposed new vehicle crossings must be constructed in accordance with City of Yarra Standard Drawings and Specifications, to the satisfaction of the Responsible Authority.
4. The development's finished floor levels for pedestrian access and car parking areas must be such that pedestrian and vehicular access accords with Australian Standards.
5. Existing footpath, kerb and channel, and road pavement surface levels must not be altered unless with the approval of the Responsible Authority.
6. The permit holder must not commence any civil infrastructure works on any Public Highway without obtaining formal consent from the Responsible Highway Authority.
7. The permit holder must not commence any civil infrastructure works, repair works or upgrading works on Council land without obtaining formal consent from the Responsible Authority.
8. Upon completion of all building works and underground service connections, the footpath extending along the property's Punt Road frontage must be reconstructed in accordance with Council standards and to the satisfaction of the Responsible Authority.

1. Before the development starts, a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed as evidence of its approval. The plan must provide the following -
   • (a) A pre-conditions survey (dilapidation report) of the subject site and all adjacent Council roads frontages and nearby road infrastructure.
   • (b) Protection works necessary to road and other infrastructure (limited to an area reasonably proximate to the site).
   • (c) Remediation of any damage to road and other infrastructure (limited to an area reasonably proximate to the site).
   • (d) Containment of dust, dirt and mud within the site and method and frequency of clean up procedures in the event of build-up of matter outside the site.
   • (e) On site facilities for vehicle washing.
   • (f) The location of loading zones, site sheds, materials, cranes and crane/hoisting zones, gantries and any other construction related items or equipment to be located in any street.
   • (g) Site security.
   • (h) Management of any environmental hazards that the activities on site pose including but not limited to contaminated soil, materials and waste, dust, stormwater contamination from run-off and wash-waters, sediment from the site on roads, washing of concrete trucks and other vehicles and machinery, spillage from refuelling cranes and other vehicles and machinery.
   • (i) A construction program.
   • (j) Preferred arrangements for trucks delivering to the site including delivery and unloading points and expected frequency.
   • (k) Parking facilities for construction workers.
   • (l) Measures to ensure that sub-contractors/tradespersons operate in accordance with the Construction Management Plan.
   • (m) An outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services.
   • (n) An emergency contact that is available for 24 hours per day for residents and the Responsible Authority in the event of relevant queries or problems experienced.
   • (o) The provision of a traffic management plan to comply with provisions of AS 1742.3-2002 Manual of uniform traffic control devices - Part 3: Traffic control devices for works on roads.
   • (p) A noise and vibration management plan showing methods to minimise noise and vibration impacts on nearby properties and to demonstrate compliance with Noise Control Guideline 12 for Construction (Publication 1254) as issued by the Environment Protection Authority in October 2008, to the satisfaction of the Responsible Authority. In this regard, consideration (amongst other matters) must be given to -

(i) Using lower noise work practices and equipment.

(ii) The suitability of the site for the use of an electric crane.

(iii) Silencing all mechanical plant by the best practical means using current technology.

(iv) Fitting all pneumatic tools operated near a residential area with an effective silencer on their air exhaust port.

(a) Any stormwater discharged into the stormwater drainage system must comply with EPA guidelines.

(b) Stormwater drainage system protection measures must be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises enters the stormwater drainage system.

(c) Vehicle borne material must not accumulate on the roads abutting the site.

(d) The cleaning of machinery and equipment must take place on site and not on adjacent footpaths or roads.

(e) All litter (including items such as cement bags, food packaging and plastic strapping) must be disposed of responsibly.

(f) All site operations must comply with the EPA Publication TG302/92.

1. The development, once commenced, must be completed to the satisfaction of the Responsible Authority.
2. Except with the written consent of the Responsible Authority, demolition or construction works must only be carried out between: 7.00 am - 6.00 pm, Monday-Friday (excluding public holidays) and 9.00 am - 3.00 pm, Saturday and public holidays. No work is to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environmental Protection Authority's Guidelines on Construction and Demolition Noise.

1. Projections over the title boundary of Punt Road must not exceed 300 mm.
2. No soil nails must extend into the Punt Road road reserve without the written approval of VicRoads.
3. No waste collection must occur from Punt Road.

1. The permit holder must take all reasonable steps to ensure that disruption to bus operations along Punt Road is kept to a minimum during the construction of the development. Foreseen disruptions to bus operations and mitigation measures must be communicated to the Director of Public Transport at least fourteen days beforehand.

1. The dwellings must be constructed with finished floor levels a minimum of 300 mm above the applicable flood level.
2. The forecourt, lobby, waste room and office must be constructed with finished floor levels a minimum of 300 mm above the applicable flood level.
3. The entry / exit driveway of the basement carpark must incorporate a flood proof apex of a minimum of 300 mm above the applicable flood level.
4. All doors, windows, vents and openings to the basement car park must be a minimum of 300 mm above the applicable flood level.
5. Before the development plans are endorsed and the work start, amended plans must be submitted to the Responsible Authority and Melbourne Water addressing Melbourne Water's conditions. Plans must be submitted with ground and floor levels to Australian Height Datum (AHD).

1. This permit will expire if either of the following occurs -
   • (a) The development is not commenced within two years from the date of this permit.
   • (b) The development is not completed within four years from the date of this permit.

The Responsible Authority may approve extensions to these time limits if requests are made before the permit expires or within three months afterwards.

[1] We considered all statements of grounds in deciding the Application.

[2] Each of these townhouses has a rooftop terrace that is not a storey, but also has a roofed lift and stairwell lobby as a small part four-storey element.

[3] This was the date the Applicant amended the original application in accordance with s 57A of the Planning and Environment Act 1987.

[4] One Respondent withdrew its statement of grounds after being served with a copy of the application to amend the permit application.

[5] The area of the MAC is not clearly defined in the scheme. It is illustrated on the strategic framework plan at figure 1 of clause 21.03 and the Burnley, Cremorne and South Richmond neighbourhood map at figure 7 of clause 21.08. The subject land appears to be about 20 m from the MAC, which at its western end includes the land on the south-east corner of Punt Road and Swan Street.

[7] The scheme cl 21.05-2 strategy 17.1.

[8] The scheme cl 21.05-2 strategy 17.2.

[9] In this respect, we agree with similar views expressed by the Tribunal in Richmond Icon Pty Ltd v Yarra CC [2011] VCAT 2175 at [43]- [44], in respect of the redevelopment of the Dimmey's Store site in the Swan Street MAC.

[10] We do acknowledge that the office fronting Punt Road does offers some additional daytime activation of the Punt Road frontage, but that benefit is not a significant one.

[12] The scheme cl 21.05-3 objective 26 and strategy 26.3.

[13] The scheme, cl 43.02 schd 2 cl 1.0 objectives, eighth dot point.

[15] We acknowledge that none of those owners filed statements of grounds contesting the Application.

[16] There is a secondary pedestrian access off Rout Street about 11 m from Punt Road that goes via a mail room to the lift lobby.

[17] At the accompanied inspection, the Applicant's representative stated the space was provided at the Applicant's request for an elderly family member. Accordingly, it is unlikely the space would be needed if the proposal was approved and constructed.

[18] [2010] VCAT 1045.