1. To determine the scope of our consideration we need to determine why a planning permit is required. We agree with the applicant and the council that:
   • A permit is needed for the buildings and works, both in accordance with HO333 and C1Z. The consideration of buildings and works in accordance with C1Z are exempt from third party review rights.
   • A permit is needed for the reduction in car parking requirements, but there is no dispute by any party about the proposed reduction.
2. The council also considers the residential use of the proposal needs a planning permit. In turn, it gave notice of the use component of the proposal to adjoining landowners. The council submits a permit is required for the use of 'dwelling' as it forms part of the broader use of accommodation. The use of accommodation requires a planning permit in C1Z if a condition that 'any frontage at ground floor level must not exceed two metres' is not met.
3. The council contends that as the condition refers to 'any' frontage, and the dwelling use only faces Easey Street, this street is also a frontage within the C1Z. The council concludes that therefore the dwelling use requires a planning permit because it has more than two metres of frontage at ground level to this street. The applicant does not dispute that the residential use, as it faces Easey Street, extends for more than two metres at ground level, but asserts that the 'frontage' of the site is to Smith Street and therefore the dwelling use has no frontage at ground level.
4. Clause 73.01 of the planning scheme defines 'frontage' as:

The road alignment at the front of a lot. If a lot abuts two or more roads, the one to which the building, or proposed building, faces.

1. The decorative parapet of the existing building at 378 Smith Street turns the corner into Easey Street. There is also a domestic front door from Easey Street, which we surmise may in earlier times have been to what would have been an upper floor residence. The proposed building relocates and widens the ground floor entry in Easey Street for residential use, and includes carparking for the residential use at ground floor. Notwithstanding this, the building clearly retains its frontage to Smith Street. 380 Smith Street has only one frontage, which is to Smith Street. As a question of fact we find that both the existing buildings and the proposed new and altered buildings face Smith Street.
2. In making this finding we note the comments made in Semmens v East Gippsland SC[3], as referred to us by both the council and the applicant. In this decision the tribunal commented that the land subject to that proceeding could be concluded as having an abuttal to three roads but the 'frontage' was the road to which the building faced, not the other two roads. This affirms that while the review site may have two road abuttals, it is only the road to which the building faces that is its frontage. The fact that the residential use, including its entry, exists at ground floor to another road does not mean it has a second frontage, it simply means the use only faces the side of the building.
3. Even if it were found that the ground floor residential use facing Easey Street required a planning permit for use, we find that it would be acceptable, because of its secondary street nature. The council and objectors are also not opposed to the ground floor use as dwellings. While the adjoining landowners to the north raise some issues with external amenity, the use itself does not create these amenity impacts. The standing of the objectors in this matter remains essentially unchanged even if the use required a permit. Therefore nothing ultimately turns on this. For reasons we set out below it is issues of building design, not its use, that lead us to conclude that the proposal fails.

1. The core issue in dispute is whether the design of the new building strikes the right balance between the planning aspirations for Melbourne generally, and the City of Yarra in particular, in the context of the permit triggers of the C1Z and HO333. These competing drivers of decision making seek, amongst other things, to achieve more housing close to services and transport as part of a sustainable city model, whilst at the same time delivering quality design that focuses on people, environment and cultural identity, reflecting the history and the future of Melbourne[4].
2. We agree with Mr Tweedie that the issue can be assessed most succinctly through the lens of strategy 21.1 of clause 21.05 of the Yarra Planning Scheme, which seeks 'development within Yarra's activity centres to respect and not dominate existing built form'. We consider that this respect needs to encompass character and urban design, in addition to the heritage considerations arising from the location of the site within a heritage overlay.
3. There was much debate through the hearing about whether the building meets specific elements of local heritage and urban design policy. This included reference to heritage policy at clause 22.02 that has a general policy for new additions to be 'visually recessive' and a specific requirement for commercial areas that directs new upper level additions to respect the scale and form of the existing heritage place by setting them back from the lower built form. The specific requirements require higher elements to be set back from the lower heritage form, and incorporate treatments to make them 'less apparent'. These policy directives need to be read as part of the objectives and decision guidelines of the heritage overlay that seek to ensure that the location, bulk, form or appearance of the new building do not adversely affect the significance of the heritage place.
4. We agree with the Tribunal's comments in Zak Group Pty Ltd v Yarra CC[5] that the requirement for a building to respect the scale and form of the existing heritage place does not necessarily mean the addition must be visually recessive in the quantitative manner that local policy at 22.02 suggests. On this site, we consider the relevant test is to determine whether the additions sufficiently respect the significance of the heritage place, both the individually listed building and the broader streetscape, as well as addressing the emerging urban character of Smith Street. This is a qualitative assessment and one that needs to consider the building as a whole.
5. Our analysis of the design response below emanates from a review of the broader policy, provisions and objectives of the planning scheme, not an assessment of whether or not the proposal meets particular standards of clause 22.02. We have examined the qualitative assessments of the expert witnesses in this context.
6. This is also a circumstance where the Tribunal's comment in SMA Projects Pty Ltd v Yarra CC & Ors that 'where there is no strategic guidance about the appropriate height of pockets of taller development (in those cases where the relevant tests allow greater heights in principle), local context becomes increasingly important'[6] is apposite. The local context in this case is north of Johnston Street. Here it is partly informed by the larger buildings near Alexander Parade, but more significantly by closer buildings related to the finer grain heritage streetscape in which the site sits. We therefore consider the most relevant comparisons between the proposal before us and other approved and/or constructed contemporary buildings are derived from those approved at 366, 368-372 and 365 - 379 Smith Street.

1. The site comprises two lots, 378 and 380 Smith Street Collingwood. Both are within heritage overlay HO333 and the Smith Street Major Activity Centre as defined by the Yarra Planning Scheme.
2. The corner lot, 378 Smith Street, is an individually listed, highly embellished two storey late Victorian shopfront on the north-east corner of Easey Street. As set out in Mr Gard'ner's evidence, this building has been consciously designed to address its Smith Street frontage and Easey Street through its elaborate return façade. The building demonstrates the 'particularly ornate and exuberant Italianate and Edwardian details...reflecting the importance of this retail strip'[7]. 380 Smith Street to its north has contributory significance to the broader heritage precinct. It is a single storey shopfront with a parapet remodelled in the interwar period. The two heritage experts called to give evidence agree that the corner site is of particular note, and that its listing as individually significant is warranted. The two sites, taken together, have an approximate 15 metre frontage to Smith Street.
3. To the direct north are two small lots, 382 and 382A Smith Street. 382 Smith Street is a narrow, double storey shopfront with contributory heritage significance. It operates as a bakery owned by Mr Trang. To the rear of this bakery is a contemporary two-storey house, owned by Ms Morton. This site has a small garden sitting between the house and the bakery. Both sites rely on a narrow fenced lane that runs along the north side of the bakery for access. This lane is the sole access to the rear lot, and provides rear access to the bakery.

Figure 2 - Aerial close up image of site Image from Nearmap date 23 February 2019

Figure 2 - Aerial close up image of site Image from Nearmap date 23 February 2019

Figure 1 - Aerial Image of site in context of Smith Street from Nearmap - Image date 7 April 2019.

1. The broader Smith Street heritage precinct, HO333, extends from well south of Johnston Street, north to Westgarth Street on the west side of Smith Street and just short of Mater Street on the east side. On the east side of Smith Street the overlay contains finer grain retail facades, whereas on the west, the finer grain heritage shopfronts end at Argyle Street and buildings north of this reflect the warehouse and industrial past of Fitzroy.
2. To the east of the site are former industrial buildings of Easey Street, some of which have a heritage character but are not listed as having heritage significance. These are generally two storey and industrial in scale.
3. A number of buildings in and out of the heritage overlay have been developed, or have approval for more intensive building form. The closest, and those we consider most relevant, are:
   • The 'Prism' building, approved at 365 - 379 Smith Street, south-west of the site. This provides for an 8 - 9 storey building sitting behind a retained heritage warehouse façade with an approximate 37.2 metre wide frontage to Smith Street. The heritage façade has an effective two storey height, with two levels above set back four metres from the street and the following four levels set in a further two metres. The topmost level is set in approximately eight metres from Smith Street. Along Argyle Street, the building is set back 3.2 metres above a four storey street wall.
   • The 'Gurner' building, approved at 368 - 374 Smith Street, directly south of the Robert Burns Hotel at the south-east corner of Easey Street. This site comprises four existing period shop fronts with a 24 metre frontage to Smith Street. This approval is based on plans generally dated 12 September 2018. The council provided these plans to us along with a copy of the permit which includes a permit condition to delete level 8. Our reading of these plans and condition is that the result is a retained two storey shopfront façade with six levels above. Of these upper levels, five are set in 6.5 metres from Smith Street with a projecting central section set back 5 metres from Smith Street. The design has rounded corners at either side boundary, so that the building edges further recede from Smith Street than 6.5 metres. Level 7 is set back 10 metres from Smith Street, creating an eight-storey building with a rooftop terrace above.
4. Both of these buildings we estimate to rise approximately 27 metres above the Smith Street footpath. These two developments both have a sense of horizontality as a result of their materiality and massing.
5. South of the Gurner approval is a seven storey building approved at 366 Smith Street. The part of the building above the street wall is set back approximately 11 metres from a retained two storey heritage façade to Smith Street. The site at 366 Smith Street is narrow, but the upper form is well recessed from the street, so we expect over time it will be less exposed as it is located mid-block.
6. There is a series of larger footprint buildings approved and constructed in Smith Street north of the site. The 'Haus' building at the north-east corner of Hotham Street is the closest, approximately 140 metres from the review site. This is within in HO333 but on a non-contributory site. It is a nine storey building with a two storey street wall behind which there are six levels, set back 7 metres[8] from Smith Street and 3 metres from Hotham Street. An upper level is then set back 10 metres and six metres from these same streets.
7. North-west of Leicester Street and Smith Street is an approved eight storey office building with new building rising above a retained two storey warehouse form. The new form is set back six metres (5.4 metres to edges of fins) for all but the top level that is set back 8.85 metres from Smith Street. There are another two new buildings north of Mater Street, outside the heritage overlay. At seven and 10 storeys, they are clearly visible in the Smith Street skyline.
8. There are also a number of approved and constructed buildings sitting behind Smith Street in Kerr Street, Keele Street, Gore Street, Rose Street and Johnston Street.

What is the proposal's response to the site context?

1. The proposal is for a nine-storey building. This includes two levels that sit behind the heritage façade of 378 Smith Street. Level 2 is exposed behind the single storey street front of 380 Smith Street. The more obvious new form is at level 3 and above, where the setback from Smith Street is 5 metres to the face of the wall. Fins project 0.25 metres proud of the wall. The visual appearance will therefore be closer to a 4.75 metre setback from the street edge, as appreciable on drawings such as TP 2-102 and evidenced in Figures 3 and 4 below. Behind 378 Smith Street a three storey high corner recess set back 8 metres from Smith Street and 3 metres from Easey Street is proposed. The rear 7.5 metres of the building to Easey Street has no setback, but the 'cut out' nevertheless forms a distinct break in the built form above the corner heritage element of the proposal.
2. Levels 6 and 7 then pick up the 4.75/5 metre setback so that they appear to 'wrap around' the corner recess behind 378 Smith Street. These levels have a wall setback of 1.8 metres from Easey Street, with fins again projecting 0.25 metres forward resulting in an apparent 1.55 metre setback to the street edge. Levels 8 and 9 adopt an 8 metre front setback and a 3.7 metre side setback, reflecting those on levels 3 to 5, so that the core of the building appears to extrude through the lower levels, emphasising the cantilever at levels 6 and 7. The overall building height is 30.55 metres, with a lift over-run on the northern boundary of 1.2 metres. The composition has thoughtfully detailed elements, including its window proportions and materiality. New work is also clearly distinguishable from the retained facade.

Figure 3 - Photomontage of proposed building from in front of 377 Smith Street. the 'House' building is visible in the distance.

Figure 4 - Photomontage of proposed building from tram stop at 397 Smith Street

1. Over five hearing days we heard expert opinion about whether the proposal achieves an appropriate balance between promoting the consolidation and activity aims of its C1Z location whilst respecting the heritage significance of the site. Its 'fit' within the emerging character of Smith Street and its impact on the heritage significance of that street, as well as its capacity to address its Easey Street context were all explored in detail. All experts expressed their opinions as qualitative assessments, and all agreed that this is a case where heritage and urban design considerations coalesce. Our consideration of the proposal has been informed by these opinions as well as our own qualitative assessment of the proposal against the relevant policy and provisions of the planning scheme applying to the site and assisted by our site visits

1. Expert witnesses had differing views as to how well the new building responded to its site and the relevant heritage and urban design directives of the planning scheme. Opinions about the Smith Street context varied:

1. Mr Blades' evidence is that the building height is broadly consistent with other buildings and approvals in the area that vary from seven to 10 storeys, but acknowledges that how the height responds to the nuances of each of the two street interfaces is critical. His view is the proposed cut out of levels 3 to 5 emphasises 'the visual primacy' of the retained street wall. He says that, combined with the increased setbacks of the two upper levels, this results in a setback which is 'generally consistent to that which is emerging in proximity to the subject site, such as that which is approved at 368 - 374 Smith Street'. 2. Mr McPherson's evidence is that although the emerging character of Smith Street includes buildings rising up behind heritage facades, in the immediate area these are more 'grounded' buildings with more recessive upper levels, and are generally on larger lots than the review site. He acknowledges the new building creates a clear visual distinction and separation from its heritage fabric, but that the proposed building has an 'overt, abrupt and over-scaled form' in relation to the retained heritage building and adjoining streetscapes. His view is that the recession at levels 3 to 5 and cantilever section above and around, 'creates a looming, overbearing presence in the streetscapes'. He says that the prominence of the upper floors is emphasised by the significant height of the proposal, 'given the relatively small site area and the vertical emphasis of the building form and façade articulation'.

1. In contrast, Mr O'Dwyer's opinion is that the five metre primary setback of the main fin embossed upper form 'relates to the Smith Street setback of the lower and central section of the new upper forms for the recently approved nine storey Gurner Apartments at 23 Johnston Street,'[9]. His view is the recessed mid-section 'provides spatial relief' to the heritage host and that the cantilever frames and highlights the lower corner building.

1. Mr Gard'ner's evidence is that from a heritage perspective, the height and limited setbacks of the building 'will diminish the legibility of these heritage buildings...within the fine-grained commercial section on the Collingwood side of Smith Street'. His view is the recession at levels 3 to 5 will do the opposite of that suggested by Mr O'Dwyer. Mr Gard'ner's view is the cut-out and cantilever 'will draw visual attention away from the heritage streetscape' and that the use of vertical panels and the horizontal glazing in the recessed elements 'do not adequately respond to the relationship of solid to void proportions of the existing building or the built form characteristics identified in the statement of significance for the precinct'. 2. Mr Raworth considers the setbacks are 'carefully considered' to 'reduce the apparent dominance of the new envelope', and that 'while the new volume is clearly much larger than the existing shops, the elevations have been articulated into smaller components that reference the scale of the Victorian shop facades' of the host and nearby buildings.
2. All experts acknowledged, and we agree, that the building needs to be considered as a whole and any specific elements of it cannot be viewed in isolation.
3. Assessing the proposal as part of the Smith Street streetscape, our review of other approvals and recent constructions leads us to agree with Mr McPherson that the dominant and emerging character in the street is for building additions that have more 'squat' proportions, with setbacks that have the visual appearance, or actually are, greater than those proposed on the review site. We consider that in this context the proportion of new to old of the proposed additions is too top heavy and undermines the prominence of the host. In a different context an architectural statement such as this may be celebrated, but here we consider the heritage streetscape of the immediate area requires a less bold response.
4. Whilst the projection of the 'core' element through the building is a skilful design technique in moulding the building form, we consider the resultant emphasis it gives the projecting cantilever overwhelms the existing building. Its impact also distracts from the heritage streetscape to an unacceptable degree, drawing the eye to the new build. We acknowledge that in part this is due to the high quality of the design and the site's corner location, but we consider it has more to do with the bulk of the upper built form.
5. Mr McPherson's evidence, in part, is that at least a three metre setback to Easey Street is needed to achieve an appropriate relationship with the existing building at the corner. We agree that as one approaches from the south there is clear view of the extent of the cantilever observed over the Robbie Burns Hotel and this contributes to the visual prominence of the upper levels which are exposed not only from the front of the building, but also along much of its side. We therefore find Mr Blade's comment that the upper two levels will only be partly seen on a direct view across Smith Street does little to aid our assessment. Even on this direct view the upper levels will be eye catching.
6. We consider that the issues raised by the design cannot be simply resolved by increasing a setback or reducing the height of the building. We do not wish to prescribe specific setbacks or height, and we do not ascribe to Mr Gard'ner's comments that the building needs to be setback at least six metres, and reduced by up to four levels. However, neither are we convinced that simply by asserting a five-metre setback is the dominant setback of other new buildings in the area makes it the appropriate setback for the review site. In any event we are not convinced that the dominant setback in Smith Street is five metres.
7. The coherent resolution of the design before us is in large part why we do not wish to be prescriptive about the necessary changes. An alternative design more suited to the site is best left to the applicant to resolve. Suffice to say, we find the current proposal too big for the site in terms of both its bulk and the site context.

1. Along Easey Street the proposal has a three-storey street wall at its easternmost edge above the carpark entry, a three-metre setback above level 2 for the 'cut-out' that reduces to 1.55/1.8 metres above and around it.

Figure 5 - Photomontage of proposal from Easey Street

1. Mr Gardner and Mr McPherson were of the opinion that the projection of levels 6 and 7 along Easey Street, above the cut out, diminished the reading of the building as part of the Smith Street heritage streetscape. Mr O'Dwyer, Mr Raworth and Mr Blades were not concerned about this aspect, supporting the recession as a successful means of distinguishing the old from new, noting that buildings in Easey Street are not within a heritage overlay.
2. We accept that the key heritage view is from Smith Street, but share Mr Gard'ner's concern that the limited side setback results in the upper levels imposing themselves on the side elevation of an individually significant heritage building. It is the overweight proportionality of the new building compared to its heritage host that the view west along Easey Street highlights. If a new proposal is put forward this side setback should be reviewed.
3. The proposal also relies on an extensive blank wall to the eastern boundary, abutting 2 Easey Street. Mr O'Dwyer advised that he had sought further articulation of this wall, but on balance he was satisfied that the patterning proposed was an acceptable outcome at the interface with a Commercial 2 Zone (C2Z).
4. As noted, properties facing Easey Street are in C2Z and are not constrained by a heritage overlay. Mr Blades' evidence relied on commentary in the council adopted Johnston Street Local Area Plan (JSLAP) that sets a maximum height of 5 - 6 storeys (24 metres) for buildings facing Easey Street. That plan also notes that taller built form may be acceptable on larger sites and the built form guidelines direct that street wall facades are to be in scale with the precinct streets. The preferred future character for the area states that the 'industrial/warehouse character has been retained with new development responding to its context'.
5. We place limited weight on the JSLAP given that, although it is an adopted policy of the council, it has not been translated to any policy or built form controls in the planning scheme[10]. We accept that the area is likely to see some redevelopment. Indeed, redevelopment is already occurring in the street, but not at 5 - 6 storeys. It is unlikely that every site in this street, many of which are small sites, will redevelop as six storey buildings, or have a six storey street wall as suggested in the applicant's submissions.
6. We acknowledge that as a C2Z interface the impact of a blank wall is less concerning than that at the northern interface in Smith Street. However, it cannot be assumed that any building on the review site will not be highly visible in the street in the medium to long term.

1. Local policy at clause 21.05 includes an objective to retain Yarra's identity as a low-rise urban form with pockets of higher development. This is directed through strategy 17.02 of this objective and has been the subject of consideration by a number of divisions of the tribunal. In summary, this states that a new building that is more than 5- 6 storeys should only be accepted if it can demonstrate specific benefits such as significant upper level setbacks, architectural excellence, adaptive re-use of heritage buildings or other design features[11]. As with our consideration of clause 22.02, we do not seek to rely on this as the only and prescriptive test for the proposal, as it is the overall proportionality and massing that we find unacceptable, for the reasons we have set out above. It follows that the architectural excellence that clause 21.05 seeks is not achieved, despite the high architectural quality of aspects of the design.
2. Many well-resolved elements of the design, including the materiality and detailing of the building are, in isolation, more than acceptable. However, overall we consider the proposal seeks too much from the site. This is borne out most notably in the relationships between the new form and the broader streetscape, and to its heritage host.

1. The council is not opposed to the internal amenity of the dwellings and most dwellings meet the acceptable standards of Clause 58. However, two dwellings, 3.04 and 4.04, that are 'type 2G' apartments, have living areas that arguably do not meet the requirements of Clause 58.07-1 in that they rely on space immediately in front of a galley kitchen as part of their usable living space. As discussed by the tribunal in 631 Plenty Road Preston Pty Ltd v Darebin CC [12] such a response may be deemed to fail the objective to provide functional areas that meet the needs of residents.
2. We also note that eight of the 26 dwellings rely solely on south orientation of their living spaces due to the alignment of the building. A number of these dwellings sit under the cantilevered upper form. Their solar efficiency is therefore limited in context of the objectives of clause 58.03-1 for site layout of apartments.

1. We accept the building has addressed questions of equitable development, but to achieve this it relies on substantial blank walls to its northern and eastern boundaries. To the north, the adjoining land is held in small lots, with an intervening council owned lane. The directly adjacent property at 382 Smith Street is a narrow lot and includes a contributory heritage building. None of the lots benefit from the corner aspect of the review site, which provides it with greater opportunity for light and ventilation. These elements constrain site accumulation and development to the north. The solid northern wall to boundary, that includes the highest portion of the building, the lift over-run, will remain largely exposed to Smith Street for some considerable time.

Environmentally Sustainable Design (ESD) assessment

1. An ESD assessment of the application plans using BESS[13] was considered by the council and identifies that the building meets 'best practice' as sought by policy at clause 22.17 and the defined benefit of strategy 17.2 in clause 21.05. We note, however, that meeting 'best practice' is a policy sought for any building assessed by the Yarra Planning Scheme. In the broader context of architectural excellence, achieving beyond best practice, toward environmental excellence may be deemed a greater benefit. It is the built form response of this proposal we take issue with, not its environmental credentials. We simply note the there are no highly extenuating environmental credentials about the design that outweigh the built form concerns we have with the building.

1. The evidence of Mr Gard'ner, Mr McPherson and Mr O'Dwyer's was critical of the three metre[14] setback from the street to level 1, directly behind the single storey parapet wall of the shopfront at 380 Smith Street. Mr Gard'ner and Mr McPherson were also critical of the inclusion of a window to the sidewall of 378 Smith Street to access a balcony included as part of the setback, because of its visibility when viewing south down Smith Street.
2. On the last day of hearing, the applicant tabled an indicative realignment of level 1 to provide for a five-metre setback to the wall of this level behind 380 Smith Street and a two metre deep balcony, so that three metres of non-trafficable roof space would distance activity on the balcony to the immediate street environs. It would also set back the north facing window in 378 Smith Street by three-metres.
3. The indicative Level 1 plan does not include an internal layout for the associated dwelling so we do not make conclusive comments about whether the new alignment is acceptable in total, but agree that the amended setback is an overall improvement to the design.

1. Mr Tweedie referred to a Supreme Court ruling of Cavanough J in relation to W Property Group Pty Ltd v Boroondara CC[15] that the 'provision for additional accommodation is capable of being regarded by a responsible authority or VCAT as a specific design benefit of additional height'. The proposal before us is for 26 dwellings with the top two levels comprising three dwellings, and the level below accommodating a further four dwellings.
2. The three levels (above the strategy 17.2 preferred six storey limit) provide a benefit of an additional seven dwellings. We consider that the benefit derived from these additional dwellings is small, relative to the ability of the remainder of the Smith Street Activity Centre and the broader City of Yarra to deliver benefits to metropolitan Melbourne for additional housing close to services. It is a benefit we consider does not outweigh the dis-benefit that we have concluded results from the design of the proposal on the streetscape.

1. From our review of the impact of the building on the heritage streetscape, assessed both as an urban design and heritage issue, we consider the design response is too bold and 'top heavy' for the context of the site. There are no other overriding or extenuating circumstances drawn from design criteria of clause 21.05 to lead us to deviate from this view. We therefore find the proposal fails as a design response. A more modest form is required that better responds to the emerging Smith Street character and its heritage context.

1. The council submits the building will unreasonably overshadow Easey Street due to the building height. Easey Street is not a main pedestrian thoroughfare. We note that other buildings in the area would cast similar shadow over side streets. The issue of shadow to the south side of Easey Street is not one on which we find the proposal fails.
2. The evidence of Mr Gard'ner and Mr Raworth generally concurred that demolition and restoration work to the existing heritage fabric of the buildings was appropriately managed or could be managed through a conservation management plan. This would need to address issues such as returning the façade to a concrete render, rather than painted finish, detailing of verandah restoration and parapet detailing. We note Mr Raworth's investigation and Mr Gard'ner's acceptance of evidence that the parapet wall of 378 Smith Street originally had some form of decorative urns or similar feature, consistent with other buildings designed by the original architect of the building. There is also evidence to suggest that detailing under the upper level windows has been removed and could be reinstated.
3. These are all aspects of the proposal that we support, but they are not of such substantive importance to outweigh the concerns we have with the building proposed above the heritage fabric.
4. Mr Trang and Ms Horton expressed concerns about the impact of the building on the amenity of their properties. In particular Ms Horton expressed concerns about overlooking, overshadowing and visual bulk. Having determined that we consider no permit is needed for the use of the dwellings the only review rights of these neighbours relates to impact of the building is on the heritage streetscape of the area. This goes to the question of visual bulk as viewed in the street, as we have discussed above. The council is not opposed to the building due to issues of external amenity impact. We agree that the sensitive interfaces are limited. In a C1Z context we are satisfied that reasonable amenity could be maintained to existing properties. This is not an issue on which we refuse the proposal.
5. It was agreed between the council and the applicant that the development could, subject to permit condition, reasonably protect itself from any noise emanating from the Robert Burns Hotel to the south. So whilst this was a ground of refusal of the council, we are satisfied this matter could be addressed through permit conditions, as acknowledged in the council's own submissions.
6. Finally, the neighbours question the impact of construction on their properties. These are issues beyond the scope of their review rights. We note that had we formed a view to grant a planning permit this is a matter that a planning permit condition for a construction management plan and other relevant requirements through the Building Act 1993 would come into play. This is also not a reason why we would refuse this proposal.

1. For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

[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] Semmens v East Gippsland SC (Red Dot) [2006] VCAT 683 (21 April 2006) - See paragraph 15.

[5] [2017] VCAT 1124 (27 July 2017) - Paragraph 65.

[6] Paragraph 35 - SMA Projects Pty Ltd v Yarra CC & Ors (Includes Summary) (Red Dot) [2013] VCAT 436 (27 March 2013)

[7] Paragraph 85 of Mr Gard'ner's evidence statement, in turn quoting the statement of significance for HO333.

[8] The endorsed plans show a seven metre setback to balconies and a small central solid wall. The main façade line is setback 8.2 metres from Smith Street.

[9] Paragraph 55 of Mr O'Dwyer's written evidence. We assume he is referring to 468 - 475 Smith Street that has a 5 - 6.5 metre setback for what we view is an eight-storey building. 23 Johnston Street has a minimum 6 metre setback to a part six and part nine storey building but is well away from the review site.

[11] Including best practice environmental sustainability objectives, positive contribution to the public domain and provision of affordable housing.

[12] 631 Plenty Road Preston Pty Ltd v Darebin CC (Red Dot) [2018] VCAT 1849 (22 November 2018). See paragraphs 76 - 80.

[13] BESS is one of the relevant assessment tools referred to in clause 22.17.

[14] 2.18 metres from the balustrade to the edge of the fins.

[15] RULING Boroondara City Council 18-0281, dated 06/03/18