It is the order of the Tribunal that the decision of the Responsible Authority in permit application No 0754/06 is set aside.[1] A permit is granted and directed to be issued pursuant to Section 85(1) (b) of the Planning and Environment Act 1987 for the land at 162-164 Commercial Road, Prahran.

Use and development of land for a multi-storey building comprising a residential hotel with 115 rooms, basement parking for 40 vehicles, a licensed premises (tavern/bar), licensed food and drink premises (café and restaurant), gymnasium and pool, works to a road in a Road Zone (Category 1), partial dispensation of car parking requirements, partial dispensation from bicycle parking requirements and waiving of loading and unloading area requirements in accordance with the endorsed plans.

1. Before the development starts, amended plans must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and form part of the permit. The plans must be generally in accordance with plans prepared by Jackson Clements Burrows Architects, referenced as Project No.06-006, Drawing No's TP1.101, TP1.102, TPI.103, TPI.104, TP1.105, TPI.106, TP1.107, TPI.108, TP1.109, TP2.101 and TP3.101 dated August 2006 but modified to show:
   • (a) A note stating that the Gymnasium and Pool are for the exclusive use of patrons of the Residential Hotel and not available for use by the general public, and the location of signage within the building to convey this message to the general public.
   • (b) Schedule of materials, finishes and colours, including the submission of a materials board.
   • (c) A detailed layout of six bicycle spaces to Council's satisfaction.
   • (d) The proposed parking bays, circulation roadways, parking aisles are dimensioned and are designed in accordance with the Planning Scheme and/or Section 2.4 of AS 2890.1. Access to the car stacker spaces is to be demonstrated by the BBS design vehicle.
   • (e) The gradients within the proposed parking bays are to be in accordance with Section 2.4.6 of AS 2890.1.
   • (f) Pedestrian access to the proposed disabled parking spaces is in accordance with Section 4.1 of AS 2890.1 during normal and emergency situations, such as a fire.
   • (g) The minimum gradient of the parking area must be in accordance with AS 2890.1.
   • (h) The ramp grades and width are in accordance with Section 2.5 of AS 2890.1. This is to be demonstrated by providing a longitudinal section of the proposed ramps.
   • (i) All proposed column locations and spacing within the car park for the development are in accordance with Clause 52 of AS 2890.1.
   • (j) All blind aisles are in accordance with Section 2.4.2 of AS 2890.1.
   • (k) All proposed parking bays abutting an obstruction such as a wall are in accordance with Section 2.4 of AS 2890.1.
   • (l) All disabled parking spaces are in accordance with AS 2890.1.
   • (m) The headroom at the entry point and throughout the car park is in accordance with Section 5.3 of AS 2890.1 and is to be demonstrated by providing a cross section.
   • (n) The proposed vehicle, crossing is to have a minimum width of 3 metres as per Council's Vehicle Crossing Policy.
   • (o) The sight distance at access driveway exits is to meet the requirements as per Section 3.2.4 of AS 2890.1.
   • (p) The proposed vehicle crossing is to be designed and constructed in accordance with Council's standard vehicle crossing details.
   • (q) That barriers are provided within the development's Car Park as required by Section 2.4.5 of AS 2890.1.
   • (r) Landscape Plan, providing detail including but not limited to; a planting schedule detailing - species, height at planting, height at maturity and a maintenance schedule detailing how the landscaping is be maintained both in the short and long term. The landscape plan must also show the location of the commemorative plaques referred to in Condition 1(t).
   • (s) Changes as required by the recommendations of the Environmentally Sustainable Development Report required and approved under Condition 3 of this permit, Waste Management Plan required and approved under Condition 4 of this permit and Parking Management Plan required and approved under Condition 7 of this permit.
   • (t) Retention and relocation of all commemorative plaques currently located on site.
2. The use and development allowed by this permit and shown on the drawings endorsed to accompany the permit must not be amended for any reason without the consent of the Responsible Authority.
3. Prior to the commencement of the development, an Environmentally Sustainable Development Management Plan (ESD Management Plan) must be prepared by a suitably qualified person.
   • (a) The ESD Management Plan must address the following:
     • (i) Energy Management;
     • (ii) Water Conservation and Re-use;
     • (iii) Demolition and Construction Waste Management.
   • (b) Where appropriate, the ESD Management Plan should:
     • (i) Identify relevant statutory obligations, strategic or other documented sustainability targets or performance standards.
     • (ii) Document the means by which the appropriate target or performance will be achieved.
     • (iii) Identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring.
     • (iv) Demonstrate that the design elements, technologies and operational practices that comprise the ESD management plan can be maintained over time.
4. Prior to the commencement of any buildings and works allowed by this permit the owner and/or developer must submit a Waste Management Plan to the satisfaction of the Responsible Authority. The Waste Management Plan must include details on how the waste, storage and collection will be undertaken so it has minimal impact on the amenity and the environment. Details to be provided in the Waste Management Plan must include, but not be limited to:
   • (a) That adequate storage space for waste bins has been provided on site.
   • (b) That adequate provision has been made for access to recycling facilities.
   • (c) That ramps within the building are of a suitable gradient that they can be used for the egress of waste bins and able to be negotiated by a fully loaded wheelie bin manoeuvred by a single person.
   • (d) Details of waste and recyclables collection frequency adequate for the quantity generated by the proposed uses.
   • (e) The Waste Management Plan must specify how the available bin storage capacity and the bin collection frequency will be managed.

The Waste Management Plan must be approved by the Responsible Authority prior to commencement of construction. Waste storage and collection must be carried out in accordance with the approved Waste Management Plan.

1. The collection of rubbish from the premises (other than normal Council collection) must be conducted between the hours of 8am to 6pm Monday to Fridays.
2. The garbage bins for the subject premises must be stored in the garbage storage areas delineated on the plans endorsed under this permit at all times other than the times of normal garbage collection to the satisfaction of the Responsible Authority.
3. Prior to the commencement of any buildings and works allowed by this permit a Parking Management Plan is to be submitted to the satisfaction of Council and must:
   • (a) Detail the signing and line marking of parking spaces.
   • (b) Detail how the proposed parking spaces will be secured for their intended users.
   • (c) Detail any access controls to the parking area, such as boom gates that must take into account the required queue length required as per Section 3.4 of AS 2890.1.
   • (d) The provision of six bicycle parking spaces is in accordance with Clause '52.34 Bicycle Facilities' of the Planning Scheme.
   • (e) Detail the provision of an electronic system or a convex mirror that must be installed, and maintained in good working order at all times, to warn drivers about to access the circulation roadway and as to whether there is a car currently on the roadway to the satisfaction of the Responsible Authority.
4. Prior to the commencement of any buildings and works allowed by this permit the owner and/or developer must submit a Construction Management Plan to the satisfaction of the Responsible Authority. The Construction Management Plan must include details on how the construction will be undertaken so it has minimal impact on the environment. Details to be provided in the Construction Management Plan will include, but are not be limited to:
   • (a) Full work schedule/construction management plan to ascertain impacts on surrounding properties.
   • (b) Public/worker access and safety issues.
   • (c) Hours of construction activity (including at what stage "out of hours works" are proposed and what type of works are to be conducted outside the hours of operation.
   • (d) The location of hoardings, hoists and workers amenities.
   • (e) The location of public precautions, 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.
   • (f) Details as to how traffic and pedestrian safety and amenity will be controlled within the vicinity of the site and its surrounds.
   • (g) The provision of a traffic management plan, including detailed plans that show all items to be placed on any street during all stages of construction in accordance with approval by the responsible Building Surveyor, entry and exit points for construction vehicles (including temporary and permanent vehicle crossings), traffic management during construction including road closures road occupation/footpath closures, work zones/construction zones to accommodate vehicles and deliveries.
   • (h) Service connections/road and footpath openings and anticipated impact on public land during the connection of different services.
   • (i) Measures to be used to protect Council infrastructure from damage.
   • (j) Existing services and environmental management.
   • (k) A list of all environmental hazards that the activities on- site pose i.e.; contaminated soil, materials and waste, dust, stormwater contamination from run-off and wash-waters, sediment from the site on roads, construction noise, hours of operation, vibration, washing of concrete trucks and other vehicles and machinery, spillage from refuelling cranes and other vehicles and machinery etc.
   • (l) Protection measures that will be undertaken to minimise the risk of the above hazards being realised.
   • (m) Regular monitoring/inspections of the above protection measures.
   • (n) Identification as to who will be responsible for managing all of the above issues.

The Construction Management Plan must be approved by the Responsible Authority prior to commencing construction and all buildings and works must be carried out in accordance with the approved Construction Management Plan.

1. A maximum 150 seats may be provided in the food and drink premises (indicated as restaurant on drawing No TP1. 102) at any one time, except with the written consent of the Responsible Authority.
2. A maximum 50 seats may be provided in the food and drink premises (indicated as café on drawing No TP1. 102) at any one time, except with the written consent of the Responsible Authority.
3. Without the prior written consent of the Responsible Authority, the licensed premises must only operate during the following hours:

1. Noise levels emitted from the premises must not exceed the permissible noise levels for entertainment noise as specified in the State Environment Protection Policy (Control of Music Noise from Public Premises No N-2), to the satisfaction of the Responsible Authority.
2. There are to be no activities conducted in the public areas involving sexually explicit adult entertainment.
3. Exterior lighting must be provided with suitable baffles and/or located to minimise the emission of light outside the site, to the satisfaction of the Responsible Authority.
4. The vehicle crossing must be constructed to Council's standard vehicle crossing specifications.
5. All vehicular crossings made redundant by the development must be removed and in conjunction with the development at the owner's cost and the footpath and kerb and channel must be reinstated to the satisfaction of Council
6. Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.
7. All drainage from the development must be constructed and connected to the satisfaction of the Responsible Authority.
8. Plant and equipment on the rooftop must be screened from view or incorporated in the overall building design to the satisfaction of the Responsible Authority.
9. All walls on or facing the boundaries of the site must be cleaned and finished to the satisfaction of the Responsible Authority.
10. All services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
11. A detailed Traffic Impact Assessment Report, including but not limited to an analysis of the impact of traffic generated by the proposal on Commercial Road/Grattan Street intersection, must be prepared to the satisfaction and approval of VicRoads.
12. This permit will expire if one of the following circumstances applies:
    • (a) The development is not commenced within two years of the date of this permit; and
    • (b) The development is not completed within four years of the date of this permit and the uses commenced.

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

Mr Ian Pitt, SC of Best Hooper Solicitors. He called written and oral evidence from Mr Robert Kelderman, Town Planner of Contour Consultants Australia Pty and from Mr Robert Stent, Architect of Hayball Leonard Stent Pty Ltd. Mr Jason Walsh, Traffic Engineer of Cardno Grogan Richards provided a written statement but was not called.

Ms Susan Brennan, Barrister instructed by Maddocks Lawyers

1. At the conclusion of the hearing, we gave an oral decision to grant a permit and this summary contains the reasons for that decision.
2. We do not detail the proposal, the site context and planning scheme provisions as these are identified in the various documents contained on the Tribunal file.

1. Although this was an application for review against failure, Council has subsequently decided to support the application subject to a number of draft conditions. The other party in the proceeding, Ms Wood, opposed the granting of a permit. She raised many issues some of which were outside the scope of our discretion. Her valid planning reasons primarily involved what she saw to be the environmental shortcomings of the proposal.
2. At the commencement of the hearing Ms Brennan explained that her submission focussed on the eight draft conditions which Council would like to see included on any permit that may issue, but which are not supported by the Permit Applicant - being conditions 1(a), 1(v), 3, 4(a), 6, 7(a), 12 and 24. (Council and the permit applicant agreed that the amended VicRoads condition 24 would be acceptable. We agree and do not further discuss this condition).
3. Based on the submissions by parties, expert evidence and our site inspection, we have formed the view that a permit should issue. We consider that policy provides very strong support for a development of this type within a centre identified as Principal Activity Centre in Melbourne 2030 and a Group 1 centre in local policy (Clause 22.09 - Retail Centres Policy). This site located centrally within the Prahran/South Yarra Principal Activity centre has excellent access to all the facilities within the Activity Centre - including retail, office and entertainment uses, parkland, community facilities and tram and train routes. Given our support for granting a permit, we have therefore focussed our attention on the draft conditions in dispute between Council and the permit applicant. We consider that our decisions on the conditions also addresses the valid planning issues raised by Ms Wood, particularly her concerns about environmental sustainability.
4. It was very clear at the outset that the main issue in dispute between Council and the permit applicant results from Council seeking to reduce the height of the building by two levels -draft condition 1(a). The Permit Applicant submitted that there were no valid planning reasons why the building should be reduced by two levels and Mr Kelderman and Mr Stent gave evidence as to why the building is acceptable as now designed.
5. We agree with the submission of the Permit Applicant that the building is appropriate as submitted. We can find nothing in planning policy that would encourage us to support the deletion of two levels. It was common ground that the existing planning policy at clause 22.02 referencing 8 metres is no longer relevant, although we acknowledge its status in the planning scheme. There was consensus that despite it not yet being adopted by Council, the guiding policy document is Chapel Vision.
6. The Chapel Vision policy recommends that the site support a 6-8 storey building with setbacks. The document however is silent on where it wants the setback (at what level) or by how much. Council has been prepared to forego any setbacks provided the height of the building is reduced to 5 storeys.
7. In requiring the lowering of the building, Ms Brennan submitted that the site context and in particular the visual relationship with the Prahran Market warranted the reduction in height. We are not convinced that this relationship warrants special attention and we agree with Mr Stent that:

New buildings need not be deliberately small or passive in deference to what will always be a prominent element in the street, all in the name of respect for Heritage.

1. Having regard to the Chapel Vision policy which represents Council's latest strategic direction, together with our appreciation of the site context, we are satisfied that a building of 7 storeys without additional setbacks is appropriate.
2. We are further encouraged in this view by what we consider is an outstandingly designed building that will add real 'sparkle' to this part of the Activity Centre.
3. As to the other conditions, we make the following findings.
4. Condition 3 requires the preparation of an ESD report. Ms Brennan sought to substitute this condition with one approved by Deputy President Gibson and Member Kearney in Jolin Nominees Pty Ltd v Moreland CC [2006] VCAT 467. Mr Pitt submitted that unlike in Jolin, there was no highly developed local statutory or strategic basis for applying such a condition. We disagree. We note that both the Planning and Environment Act 1987 and the state planning policy framework give support to sustainable use and development. Clause 11.03-2 establishes principles concerning ecologically sustainable development. Although Stonnington's local policy isn't as well developed as the City of Moreland's, the Chapel Vision policy has a strong commitment to ESD. The detailed initiatives are found at 4.10 and include objectives and strategies targeting individual building design. We will therefore include an amended condition 3 to reflect condition 8 in Jolin.
5. Condition 4(a) requires a Waste Management Plan incorporating information as to how the building will assist Council in achieving the waste reduction and diversion targets in the state government waste reduction strategy. There is no evidence as to what Council is doing in achieving waste reduction or diversion targets or what those targets are. We therefore agree with Mr Pitt and will not include condition 4(a).
6. Mr Pitt raised a concern about including reference to 'Council' in condition 6 since a private contractor may be engaged to provide waste collection services. Ms Brennan agreed that the reference to 'Council' should not be included. We agree that the reference to 'Council' in condition 6 should not be included to recognise that waste management might be by a private contractor.
7. Draft condition 7(a) requires the designation of parking spaces to individual tenancies/lodging rooms. Council has accepted a waiver of the full provision of on-site parking and although we did not hear from Mr Walsh, we accepted this position. However, in accepting this lower rate of parking, we note that there are not enough on-site spaces to allocate to each individual tenancy and lodging room. How this allocation is to occur is a matter of detail that is yet to be refined. We are content to leave the allocation of spaces to a discussion that is yet to occur between the Council and Permit Applicant. Therefore, we will not include condition 7(a).
8. Condition 12 restricts music and entertainment to background music or non-amplified instruments. We accept that condition 13 requiring compliance with SEPP N-2 will address the amenity concerns of Council. We note that the building contains both a commercial and residential component. We agree with Mr Pitt that it is in the interests of the management that entertainment noise does not adversely affect the serviced apartments. We will not include condition 12.

1. Having regard to the above we will therefore direct that a permit issue subject to conditions as set out in our order.

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