Relocation of services on adjoining land as sought by Vertex Pty Ltd

1. The permit applicant came to an agreement with this objector party who is a joint owner of the adjoining property at 246 and 254/256 Bridge Road. The agreed position was that the objector would withdraw their objection subject to the permit applicant agreeing to a number of permit conditions forming the conditions proposed to the tribunal. These conditions generally relate to relocating services on the objector property, but overhang, or sit on the review site.
2. The conditions agreed to between the parties, as quoted directly from emails received by the tribunal on 13 February 2018 are[13]:
   1. All windows within the East facing void against the adjoining property (246 Bridge Rd) must be a minimum of 1700mm above finished floor level and only openable via awning system hinged from the top and opening to a maximum of 7 degrees.
   2. Void area facing East to be increased to 11.85m x 1.6m. The void is to have a length of 11.85m and is to be measured from 600mm north of Grid line D and continue South to clear all four of the first floor glass brick windows of the adjoining property.
   3. A notation on the plan noting that the existing Storm water drains currently fixed to the outside western face of the adjoining building at 246 Bridge Rd are to be modified/re-designed and incorporated within the drainage system of the proposed project at 242 Bridge Rd to the satisfaction of the responsible authority.
   4. A notation of the plan noting that the existing air conditioning units and pipes currently affixed to the roof of the subject property which belong to the adjoining building are to be relocated to an appropriate location onto 246 Bridge Road with the pipe work being affixed to the western face of 246 Bridge road within the void space.
   5. A further notation creating an easement for the service and maintenance of the storm water s drains and pipes, air conditioning units and pipes and windows. Belonging to 246 Bridge Rd.
3. We have incorporated the first and second of these conditions into condition 1 as set out in Appendix A, but modified the wording to be consistent with generally accepted permit writing. Notably in condition 2, we accept Mr Tobin's comment that 'at least' should be added before the measurement of 11.85m to allow for minor flexibility what the endorsed plans may become.
4. We have not included conditions 3 to 5. While these matters may be agreed privately between the land owners, they are not matters we think can or should be placed on the planning permit. The conditions relate partly to works that are not on the review site, but another private property. They also direct the creation of an easement that may generate a separate, unassessed permit trigger. This is not to say the agreed terms cannot be enacted between the parties, just simply that we do not see the planning permit is the appropriate mechanism for them to be implemented.

1. Mr Tobin submitted that the car parking condition required amendment or a new condition to confirm that the parking for the two dwellings must be maintained and used for such purposes. The applicant was not opposed to this and we have included such a condition at condition 14. We have also added a condition 1l that this is also notated on the plans to be endorsed.

• Ground floor use of dwelling.
• Part demolition of an existing building and construction of a five storey addition.
• Reduction in car parking requirements.

1. Before the development commences, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of this 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 prepared by ElevliPlus, TP00-TP02, TP06-TP09, TP12-18, TP18A, TP25, Rev D, dated 17.01.18, but modified to show:
   • (a) On TP02, under the heading "Development Summary" deletion of the reference to "including roof terrace" after the words "5 levels average above natural ground level (N.G.L.)".
   • (b) An amended car parking layout to accommodate disabled access in accordance with ElivliPlus plan TP06 - Revision E dated 29.01.18.
   • (c) An amended living room layout as depicted in ElivliPlus plan TP09 Revision F dated 29.01.18, or similar arrangement to locate the kitchen area closer to the window line.
   • (d) A schedule of colours and materials with photographic quality depiction of all external materials and finishes;
   • (e) Material '9' being obscure glazing or otherwise providing no more than 25% visual transparency;
   • (f) Window operation to ensure all habitable rooms contain at least one operable window;
   • (g) Specifications for the proposed car stacker and swept path diagrams for the B85 design vehicle demonstrating vehicle turning movements into and out of the individual stacker platforms with the on-street car parking on the north side of Alban Street depicted/superimposed on the swept path diagrams;
   • (h) Adjustable, external screening to all exposed, west-facing windows;
   • (i) All windows within the east facing void against the adjoining property (246 Bridge Rd) to be a minimum of 1700mm above finished floor level and only openable via awning system hinged from the top and opening to a maximum of 7 degrees.
   • (j) The void area facing east increased in dimension to at least 11.85m x 1.6m, with its northern edge commencing from not less than 600mm north of Grid line D on ElivliPlus plan TP 07, continuing south, so as to retain clearance to all four of the first floor glass brick windows of the adjoining property.
   • (k) Any changes necessary to accommodate the realignment and the reconstruction of the stormwater drain at the east end of Alban Street as set out in condition 9.
   • (l) Notation that four car parking spaces are to be maintained for use of the two dwellings.
2. The use and development as shown on the endorsed plans must not be altered (unless the Yarra Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.

1. Before the plans are endorsed, an amended Sustainability Management Plan (SMP) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the amended Sustainability Management Plan will be endorsed and will form part of this permit. The amended SMP must be generally in accordance with the SMP prepared by GIW and dated 7 October, 2016, but modified to:
   • (a) Reflect the approved height and design of the building.
   • (b) Demonstrate that all dwellings have a cooling load less than 30 MJ/m2/pa.
   • (c) Delete the terminology 'where appropriate' and definitively list all commitments to be met.
2. The provisions, recommendations and requirements of the endorsed Sustainability Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.

1. Before the plans are endorsed, an amended Acoustic Report to the satisfaction of the Responsible Authority must be prepared by a suitably qualified acoustic engineer and must be submitted to and approved by the Responsible Authority. When approved, the Acoustic Report will be endorsed and will form part of this permit. the amended acoustic report must be generally in accordance with the report by SLR and dated 7 February, 2017 but modified to show/address:
   • (a) The endorsed floor layout.
   • (b) Details of the octave-band spectrum used to calculate glazing requirements.
   • (c) Details of the noise attenuated fresh air vent;
   • (d) Details regarding the proposed 100mm gap between apartment walls and the existing building at 252 Church Street where music is played at a dance studio.
2. The provisions, recommendations and requirements of the endorsed Acoustic Report must be implemented and complied with to the satisfaction of the Responsible Authority.

1. The provisions, recommendations and requirements of the endorsed Waste Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.

1. Before the development commences engineering drawings of the drain realignment and the reconstruction of the east end of Alban Street must be submitted to and approved by the Responsible Authority.
2. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the drain realignment and reconstruction at the east end of Alban Street must be completed:
   • (a) at the permit holder's cost; and
   • (b) to the satisfaction of the Responsible Authority.
3. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, any damage to Council infrastructure resulting from the development must be reinstated:
   • (a) at the permit holder's cost; and
   • (b) to the satisfaction of the Responsible Authority.

Except with the prior written consent of the Responsible Authority, Council assets must not be altered in any way.

1. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, any new vehicle crossing must be constructed:
   • (a) in accordance with any requirements or conditions imposed by Council;
   • (b) at the permit holder's cost; and
   • (c) to the satisfaction of the Responsible Authority.
2. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, any redundant vehicular crossing must be demolished and re-instated as standard footpath and kerb and channel:
   • (a) at the permit holder's cost; and
   • (b) to the satisfaction of the Responsible Authority.

1. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the area set aside on the endorsed plans for the car parking spaces, access lanes, driveways and associated works must be:
   • (a) constructed and available for use in accordance with the endorsed plans;
   • (b) formed to such levels and drained so that they can be used in accordance with the endorsed plans;
   • (c) treated with an all-weather seal or some other durable surface; and
   • (d) line-marked or provided with some adequate means of showing the car parking spaces;

1. Four car parking spaces must be designated and maintained for use of the two dwellings.

1. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, external lighting capable of illuminating access to the car park, and dwelling entrances must be provided within the property boundary. Lighting must be:
   • (a) located;
   • (b) directed;
   • (c) shielded; and
   • (d) of limited intensity,

1. Before the development is occupied, or by such later date as approved in writing by the Responsible Authority, all screening and other measures to prevent overlooking as shown on the endorsed plans must be installed to the satisfaction of the Responsible Authority. Once installed the screening and other measures must be maintained to the satisfaction of the Responsible Authority.

1. The amenity of the area must not, to the satisfaction of the Responsible Authority, be detrimentally affected by the use, including 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.
   • (d) The presence of vermin.
2. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, all new on-boundary walls must be cleaned and finished to the satisfaction of the Responsible Authority.

1. Except with the prior written consent of the Responsible Authority, demolition or construction works must not be carried out:
   • (a) Monday-Friday (excluding public holidays) before 7 am or after 6 pm;
   • (b) Saturdays and public holidays (other than ANZAC Day, Christmas Day and Good Friday) before 9 am or after 3 pm; or
   • (c) Sundays, ANZAC Day, Christmas Day and Good Friday at any time.

1. Before the development commences, 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 and will form part of this permit. The plan must provide for (as appropriate):
   • (a) a pre-conditions survey (dilapidation report) of the land and all adjacent Council roads frontages and nearby road infrastructure;
   • (b) works necessary to protect road and other infrastructure;
   • (c) remediation of any damage to road and other infrastructure;
   • (d) containment of dust, dirt and mud within the land and method and frequency of clean up procedures to prevent the accumulation of dust, dirt and mud outside the land,
   • (e) facilities for vehicle washing, which must be located on the land;
   • (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 including, but not limited to,:
     1. contaminated soil;
     2. materials and waste;
     3. dust;
     4. stormwater contamination from run-off and wash-waters;
     5. sediment from the land on roads;
     6. washing of concrete trucks and other vehicles and machinery; and
     7. spillage from refuelling cranes and other vehicles and machinery;
   • (i) the construction program;
   • (j) preferred arrangements for trucks delivering to the land, including delivery and unloading points and expected duration and frequency;
   • (k) parking facilities for construction workers;
   • (l) measures to ensure that all work on the land will be carried out 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; and
   • (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.

1. This permit will expire if:
   • (a) the development is not commenced within two years of the date of this permit; or
   • (b) the development is not completed within four years of the date of this permit.
   • (c) the use is not commenced within five years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within six months afterwards for commencement or within twelve months afterwards for completion.

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

[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] [2018] VCAT 103 (24 January 2018)

[4] Genser & Associates (Aust) Pty Ltd v Yarra CC [2007] VCAT 2261 [29]. This decision considered impacts on views to the Nylex sign.

[5] Cremorne Corporation Pty Ltd v Yarra CC [2008] VCAT 1202 [50].

[6] Richmond Icon Pty Ltd v Yarra CC [2011] VCAT 2175 [66]. This decision considered impact on views to the Nylex sign.

[7] As set out in clause 10.04 of the Yarra Planning Scheme.

[8] Renaissance United Assets Management Pty Ltd v Yarra CC [2018] VCAT 103

[9] [2013] VCAT 1799 (21 October 2013)

[10] Particularly those made in Rescom

[11] Ms Dunstan's evidence is that post development, Alban Street traffic will double, but only from 6 to up to 12 vehicles in the hour (or one per five minutes). This remains well below the expectations of a small street such as this.

[13] We have quoted from this email direct. It retains some typographical and grammar errors.