Baracon Equity Pty Ltd v Yarra CC [2008] VCAT 926

1. The amended plans included in the booklet "VCAT Submission" all marked Revision F are substituted as the application plans in permit application PL07/0556 and in this proceeding.
2. In permit application no. PL07/0556, the decision of the Responsible Authority is set aside. A permit is granted and must be issued. The permit relates to the land at No. 7-15 Judd Street, Richmond. The permit allows:
   • construction of a multi-storey building with basement for up to 96 dwellings;
   • construction of eight townhouses;
   • a reduction in car parking;

1. The permit is subject to the conditions contained in Appendix 1 to these reasons.

Mr J Gobbo QC with Mr P Connor of counsel. They called expert evidence from:

• Mr V Connor, town planner.
• Mr J Walsh, traffic engineer.
• Mr S McGurn, town planner.
• Mr T Biles, urban designer.

Mr J Rantino, solicitor of Maddocks lawyers. He called expert evidence from :

• Mr A Hutson, architect.
• Ms C Dunstan, traffic engineer.

Mr A Norris, Ms L Gropp, Mr C Murray (with Mrs Murray), Mr E Kombotis, Mr J Athinis all in person.

1. Baracon Equity Pty Ltd lodged a permit application with the Yarra City Council for a substantial residential development comprising more than 100 dwellings on a former industrial site to the north of Bridge Road, Richmond. The proposal provides for an extension of McGoun Street to become a through road with development on either side of the road link. A multi-level building with basement parking would be upslope to the south and two-three storey townhouses would be downslope to the north.
2. A review against the Council's failure to decide upon the permit application within the prescribed time was lodged by Baracon.[1] The Council has since determined to support the proposal subject to modifications. Those changes are sought to address the interface with the existing residential areas in Judd, McGoun and Thomas Streets; to improve the internal amenity of some dwellings; to improve the operation of the car park; and to address the potential for overlooking. Respondent Objectors hold more substantial concerns about the scale and extent of the proposed development in terms of its visual impact as well as additional traffic and parking within the area. Some are also concerned about the loss of views from their dwellings and the potential for overlooking.[2] The Applicant challenges grounds opposing the proposal as well as Council's desired changes to the form and layout.
3. The Tribunal must decide whether to grant a permit and, if so, what conditions should apply. Having considered all submissions, assisted by my inspections[3], I will set aside the Council's decision. My reasons follow.

1. Bridge Road is a major activity centre associated with Richmond Hill. The land falls from the Hill to the north where there was traditionally a large area of industrial and warehouses uses. These are gradually being converted or redeveloped for various purposes including housing. The review site is very large, in four titles, with a brick saw-toothed warehouse/ factory. The area is over 2,820 square metres. The land fronts Judd Street, a narrow one-way street off Bridge Road, and McGoun Street, a residential no-through road extending westwards from Thomas Street. The site is elongated and extends through to the rear of several properties fronting Cameron Street. It also abuts a Council car park to the east/south-east.
2. To the west, on the west side of Judd Street, are two large buildings that front Lennox Street. One is known as the Quest apartments. It contains four levels of apartments with a top floor comprising 18 private dwellings. The second large building is a medical centre in a stepped form to five main levels. The two large buildings are separated by a single storey service building. Single storey dwellings are further north along the east side of Lennox Street.

1. Approval is sought to construct an apartment building with a basement and a separate group of townhouses. The site would be divided into two as a result of the proposed extension of McGoun Street to join with Judd Street.
2. The northern part of the site would provide for eight attached townhouses focused around the north-east corner of the newly opened McGoun Street and Judd Street. Four would front the east side of Judd Street and four would front the north side of McGoun Street. All would be three storeys except the northern-most unit fronting Judd Street that would be two storeys. The eastern-most unit would be recessed from its side boundary. Four units would have two car spaces and four would have one space. Garages for five units would be accessed via Judd Street while three townhouses would access their garage from the McGoun Street extension.
3. The southern part of the site would provide for a three to seven storey apartment building containing 100 dwellings. There would be 25 bed-sitters, 38 one bedroom units with a study nook and 37 two bedroom units. The building would be three storeys to its north-east. This portion of the development would contain multiple units with a common area above (pool, gymnasium and deck). The seven storey form would be across the balance of this part of the site. Access to all dwellings would be via a lobby from McGoun Street except for some dwellings that would have direct access from that street. The basement with 136 car spaces would have three access points - one from McGoun Street, one from Judd Street and one to a right of way off Thomas/Hull Street. A total of 131 car spaces are allocated while five are "spare" to be offered to purchasers within the development. As the basement is contained over several levels as a result of the slope, traffic associated with the car park would be distributed between the access points. A total of 11 visitor spaces is proposed within the car park accessed from McGoun Street.
4. The apartment building adopts an L shape with the lower, three storey, portion to the north-east. It would have a maximum height of 24 metres (RL44) associated with the sixth floor and 22 metres to Judd Street. Details of all setbacks for the apartment building and townhouses are set out in the Council officer's report.[4]

1. The majority of the review site is within a Mixed Use Zone where a permit is required for the development of multiple dwellings under the Yarra Planning Scheme.[5] A permit is also required for the development of multiple dwellings within a Residential 1 Zone.[6]
2. The site is affected by an Environmental Audit Overlay.[7]
3. Car parking requirements are at Clause 52.06. A permit is required to reduce the amount of parking for dwellings within the development. Bicycle parking is to be provided and no permit is required under Clause 52.34. Referral was required to the Department of Infrastructure. There was no objection to the proposal subject to a condition.[8]
4. A number of other Clauses of the Scheme are relevant to a decision and have been considered by the Tribunal including Clauses 11, 12, 14.01, 15.12, 16.02, 17.01, 18.02, 18.03, 19.03, 21, 22.10 (Built Form and Design Policy) and the general decision guidelines at Clause 65. I was referred to Amendment C84 including proposed height limits.

What is the planning context for the assessment of this proposal?

1. The planning context for the development of the review site is not in issue between the parties. However, it is important to distil the key themes as this is relevant to an assessment of the merits of the proposal.
2. Bridge Road is a major activity centre. Activity centres have a pivotal role for the achievement of additional housing to support wider planning objectives. Melbourne 2030 and Clause 12 would include the site as a "strategic redevelopment opportunity" and a candidate for a large residential development given its size, potential yield, relationship to the activity centre focused on Bridge Road and ready access to public transport.[9] The land is in an area that was traditionally developed and used for industry and warehousing with low scale residential areas to the immediate north. Over time, larger older buildings have been converted and sites redeveloped, often for residential purposes. The area around the review site is not affected by heritage controls and there is considerable scope for redevelopment. That is recognised through the frameworks plans within the Council's Municipal Strategic Statement where the site's zoning has been applied to facilitate new residential development.
3. Indeed, these are the types of locations where intensive residential development is specifically directed and encouraged as part of the wider housing strategy that includes a more restrained approach in established residential and heritage areas.
4. Within this context, the Municipal Strategic Statement seeks a number of outcomes for new development including high quality design that has an emphasis on matters such as the amenity of occupants and neighbours, energy efficiency and a positive contribution to neighbourhood character. The surrounding residential area has an inner suburban residential character that the policy seeks to maintain with respect to matters such as minimal front and side setbacks.
5. Clause 22.10 has similar themes relating to ensuring new development responds to the context and respects the scale and form of surrounding development where these are valued elements; makes a positive contribution to the streetscape; limits amenity impacts on surrounding land; increases accessibility and "walkability"; and encourages environmentally sustainable development. There is a strong emphasis on maintaining and extending the fine grain form. Reading Clause 22.10's policies for setbacks, massing and heights, there is an acknowledgement of the specific circumstances of larger sites and where it is appropriate to establish a different character to that existing with the intent of achieving planning objectives. There remains, however, a focus on design treatments to avoid excessive visual bulk and respect the scale of surrounds as well as achieving a suitable transition in certain circumstances.

Are the design and form of the apartment building and townhouses acceptable?

1. The site is clearly one where a substantial development is possible and desirable to achieve planning objectives. The land is within a setting that includes some 4-5 storey structures but is also at a sensitive interface with low scale traditional residential forms to its east and north. It is this transitional situation that is at the core of part of the dispute in this proceeding; that is, the proposal's response to the urban form and context.
2. Before turning to that issue and other matters that are central to this dispute, it is important to refer to a series of positive elements of the layout and design. Those significant positive features include:
   • the extension of McGoun Street to become a through road;
   • the activation of the ground level to McGoun and Judd Streets with residential uses, public spaces and streetworks that will improve the quality and safety of the public realm;
   • the architectural approach including a hard-edged response and graduation to existing dwellings in McGoun and Thomas Streets;
   • the diversity of dwelling styles and sizes;
   • the inclusion of lower scale townhouses to the north side of McGoun Street that reflect the fine grain residential character of that area and reflect the scale of the existing building on the land;
   • the scale and siting of the townhouses, at mainly three storey with two storey transition points to the east and north[10];
   • the contrasting large footprint and higher structures to the south that respond to commercial developments and subdivision pattern;
   • concealing parking for the southern development and siting garages for townhouses that respond to the site's different contexts.
3. Opening McGoun Street is of concern to some existing residents. While those concerns are understandable given the dead-end nature of the street at present, there is no doubt in planning terms that the creation of the road makes a positive contribution to the Council's aims of improving connectivity, permeability, accessibility and walkability. The contribution of this road formation and construction, paid for by the proponent, is a significant design outcome and has an important community benefit.
4. I now turn to the key matters in dispute with respect to the built form and its response to the site's physical and planning context.
5. First I refer to concerns about the form of the seven storey component to its northern end. The Council submitted the massing of the proposal generally responds to the site's context but, through the evidence of Mr Hutson, submitted there is a disproportionate relationship between the seven storey building and three storey townhouses given limited physical separation between them. Mr Hutson felt this would be too dominating in the streetscape. He recommended the deletion of four units to provide a transition of five levels at the interface with McGoun Street. The Council officer raised similar concerns in her assessment although an alternative response was suggested involving the removal of units only from the sixth floor. The Council had also obtained urban design advice at an earlier stage from Mr Robert McGauran who, I note, did not criticise the apartment form other than suggesting one unit be removed to provide datum point for a redevelopment of the land to the south of the review site.
6. In response, witnesses for the Applicant considered the transition is reasonable given the context including the Quest building and the medical centre that will terminate the McGoun Street vista when viewed from the east. Mr Gobbo QC submitted the proposal maintains a pedestrian scale and transitions of the extent proposed are not unusual in the wider locality or unacceptable given the planning context. He said changes referred to by the Council would water-down the architectural response.
7. I have very carefully considered the transition point mindful of the fairly narrow width of McGoun Street, the position of single storey dwellings in the residential zone along McGoun Street, the visual relationship with other structures from various viewing points near to the site and from afar, and broader questions of urban form that arise from the planning objectives for this locale.
8. I agree with the Council that a transitional 'zone' has been formed by developments in Hull Street and the medical centre. That 'zone' is around 4-5 storeys. The developments in Hull Street are separated from low scale dwellings by a road that is wider than the McGoun Street extension will be. However, those existing multi-storey structures are much larger and broader than the seven storey element that would front McGoun Street. The proposed form is around 20 metres wide across a site frontage of more than 45 metres. Two parts of the seven storey form that would be closest to the street are each one room wide, at around 4.5 metres, separated by a recessed space of around 7.5 metres deep (in part with a terrace) and another terrace at the eastern edge of this section of the structure. The balance of the McGoun Street frontage would comprise a three level structure.
9. When viewed from the east, the proposed seven storey building would be seen with the medical centre terminating the view at the end of the street. When viewed from the north, along and up Judd Street, the form would be framed with the medical centre. When viewed further eastwards, say in Hull Street, there again would be tall structures in the frame of reference.
10. Thus, even though higher than those existing structures, and although the proposal pushes the limits, I am not persuaded it oversteps what can be regarded as an acceptable outcome in the site's physical and planning context. Most influential to my conclusion are the existing taller structures around the site. I have not been persuaded that removing several units either in the form recommended by Mr Hutson or the Council officer is warranted or would make a significantly appreciable difference when viewed in the public realm. Moreover, the change is not needed to protect the visual scale along Bridge Road as the seven storey building would not be seen over existing structures. The proposed building would be seen along Judd Street at the intersection with Bridge Road but I do not find that to be unacceptable.
11. I am also not persuaded that a change to the northern portion of the apartment building is required because of the transitional response or 'zone' that can be read in Hull Street and with the medical centre. That format is not prescribed in any way through the Planning Scheme and the physical circumstances differ (for example, the re-use of existing building fabric, topography and existing building stock). Furthermore, there may have been other considerations directing an appropriate outcome including a lower scale setting than is the case for the review site. Thus, even though there is an appreciable transition point I find no reason to conclude that the five storey scale must be replicated in the circumstances of the review site.
12. The idea of removing an apartment at the south-west corner (5.04) was not pursued by the Council at the hearing although it was referred to by some Respondent Objectors. I am not persuaded this is required. However, I accept the Council's recommendation for south-facing units to be setback by 4.5 metres to assist to provide a reasonable separation should the land to the south be redeveloped.
13. Next I refer to the form of the projecting element along the Judd Street streetscape. This was another aspect of the design of concern to the Council and some Respondent Objectors. Mr Hutson referred to this element as dominating in the street and said the projection should be reduced by one metre. In response, witnesses for the Applicant felt the projection is acceptable, noting it does not extend beyond the title, and is desirable to break up the western elevation. Despite this, Mr Gobbo conceded the projection could be narrowed by around 500mm without unduly affecting the architectural response, albeit that was not regarded by Mr Biles as necessary. Mr Gobbo urged against making any change to this element for reasons relating to off-site amenity impacts, stating there is no basis for the change for that reason, a matter which with Mr Murray disagreed.
14. The projecting black box, as it was described for convenience at the hearing, frames four units; two at the fifth level and two at the sixth level. It is a collar detail around the terraces for these units. It serves to break up the visual mass associated with the lengthy elevation. It overhangs the balance of the western elevation by 1.4 metres and the colour adds to the visual weight it seems to have. I consider there are benefits to narrowing the form both in a streetscape view and to provide a very small additional separation from the Quest apartments facing this form. I am satisfied by the evidence of Mr Biles and Mr Hutson that this can be achieved without impacting on the integrity of the design.
15. Another matter raised by the Council concerned the retention of three street trees in McGoun Street. While it is correct that it is a matter for the Council as to whether their removal would be authorised, in my view, the retention of the trees would not produce a good long term outcome. There is the chance here to create a new streetscape with new and co-ordinated landscaping to complement the built form. The trees are growing hard-up against an existing brick boundary wall. As identified in a short letter prepared by Mr Robert Galbraith, arborist, tendered by Mr Gobbo, two of the trees have structural deficiencies and one is a weed. I will not require the street trees to be retained.
16. For the above reasons, I am persuaded that the proposal represents an acceptable response to the site's physical and planning context subject to minor changes that can be addressed by permit conditions. I am satisfied the design response accords with the objectives of Clause 19.03, the Guidelines for Higher Density Housing, and the purposes of the applicable Zones.

Would off-site amenity impacts be acceptable given the planning context?

1. The main issue in opposition to the proposal by nearby residents and Council with respect to off-site amenity impacts is the potential for overlooking. This was a particular concern for residents of the top floor of Quest, such as Messrs Murray and Norris, as issues with respect to other relationships were resolved to the satisfaction of those involved.
2. The Guidelines for Higher Density Housing seek to ensure that the privacy of existing residents is protected and rely on Clause 55 standards with respect to overlooking. They seek suitable daylight access to adjacent private open spaces.[11]
3. The habitable room windows and terraces for most units within the apartment building would be more than 9 metres from a window or terrace associated with dwellings close to the site or would be provided with screening as agreed in mediation. While Mr Hutson was also concerned about views into Quest's serviced apartments, submissions mainly emphasised the top floor of private apartments. These units are open plan in layout with a terrace facing the review site or, in the case of the corner unit, also north-east, north and north-west. The Applicant urged against screening devices to protect views from the proposed dwellings mindful of the separation distances that would, at minimum, be over 9 metres, whereas the Council and Objectors expressed concern about interviewing.
4. In my view, screening the terraces of Units 4.06, 4.07, 4.08, 5.04, 5.05, 5.06, 6.04 and 6.05 that face the Quest's private dwellings is appropriate to protect downward, lateral and upward interviewing with occupants of the proposed units. I consider this is necessary given the separation distances are around 10-11 metres, the number of units involved and the absence of alternative private spaces for the Quest dwellings or the proposed dwellings. I have confidence in the abilities of these architects to craft screening treatments that capture views likely to be desired by occupants of the proposed units but (dependent on the terrace position) avoid lateral, upward or downward interviewing with the Quest units. I am also confident that can be achieved in a way that integrates with the architecture. It may be possible to re-orient 6.04 and 6.05 instead. I have less concern about the Quest serviced apartments given the short term nature of the use.
5. I have also considered the loss of views from Quest units and the added visual presence of the proposed building. Views are part of the amenity of the dwellings and the proposal would take away sometimes considerable views, dependent on the apartment's position, and add built form in their place. For example, Mr Murray's dwelling currently enjoys expansive views to the Dandenongs in addition to views to the north and north-east that are only impeded by the top of the medical centre.
6. I do not think loss of views is an irrelevant consideration (unlike submissions about devaluation that do not carry weight) having regard to the principles applied by the Tribunal.[12] I also have concern about the visual bulk of the development in close range to the dwellings opposite. Both of these considerations have been very significant in my review. However, and while acknowledged the impacts, I consider the ability to retain long distance views from all units in perpetuity is not a reasonable expectation given the planning context that applies and will continue to result in substantial development within the Mixed Use Zone. On balance, taking these factors into account and mindful of the separation provided by Judd Street, I am persuaded an acceptable outcome is achieved.
7. I record that concerns by Respondent Objectors with respect to other parts of the proposed development appear to have been resolved through mediation as noted. I do not, therefore, intend to analyse the relationship of the townhouses and other apartments to existing dwellings, suffice to say that I find the balance of the development would also produce an acceptable outcome subject to some matters of detail being addressed by conditions.

Is an acceptable level of internal amenity achieved?

1. One of the Council's main issues with this proposal is the level of internal amenity for a number of the units. That is in terms of the adequacy of daylight to bedrooms. This arises primarily in relation to a number of units that are bed-sitters or have one bedroom that relies on borrowed light. The Council also expressed concern about solar access to, and the size of private open spaces, for some units.
2. The importance of achieving an acceptable level of internal amenity is set out in various policies and reference material including Clause 22.10 and the Guidelines for Higher Density Housing. On my assessment, the Council's concerns with respect to several south-facing units are valid but I am not persuaded to reconfigure other units that face north or east. All of the units in issue, and my findings in relation to them, are referred to in the table below.

Apartments on the south side of McGoun Street LG.01 - LG.04 and UG.01 - UG.04 - Council seeks the number of apartments to be reduced to enable re-design to improve daylight access to bedrooms.

These apartments face north and, taking into account that orientation as well as the width of the units and depth to the bedrooms, I am satisfied an acceptable outcome would be achieved. That is provided the glazing is not too darkly tinted to limit sunlight and daylight access.

Council seeks apartments 1.01 to 1.05 to be reconfigured for access to direct light. This layout is sought to be repeated to the floor above (apartments 2.01 to 2.05, 3.01 to 3.05).

1.03, 2.03, 3.03 and 1.06, 2.06 and 3.06 all have bedroom windows with direct daylight. The balance of these units face east or north and, given the unimpeded daylight/sunlight access and the unit depths, I am satisfied an acceptable outcome would be achieved.

Council seeks apartments 1.07, 1.08 and 1.09 to be re-configured to two apartments instead of three apartments, for the apartments to be setback 4.5m from the south boundary, and for private open spaces to be rearranged to allow for a lightcourt adjacent to the bedrooms. This layout is to be repeated to the two floors above.

This is appropriate to ensure these south-facing units have an improved level of amenity and to ensure sufficient spacing from any redevelopment of the land to the south of the review site. It will result in the loss of four units, one per floor (first, second, third and fourth floors).

Council seeks apartments 2.01 and 2.02 to have balconies increased in size to approximately 8.0sqm.

Additional open space can simply be achieved by increasing the depth of the balconies as proposed by Mr Hutson. I will require them to be a minimum of 1.6 metres in depth resulting in an additional minor overhang of the communal courtyard. This should be repeated for units 3.01 and 3.02. This would be beneficial despite the sizeable communal area.

Council seeks apartment 4.02 to be setback a minimum 4.5m from the south boundary.

This is appropriate to ensure sufficient spacing from any redevelopment of the land to the south of the review site.

1. Thus, I find north and east-facing bedsitters and units containing bedrooms with borrowed light should have an acceptable level of amenity given the unit depth and unimpeded daylight/sunlight access. They borrow light across habitable areas and not corridors. I have not reached the same view with respect to the south-facing units that I will require be modified.
2. The final matter is storage facilities for each unit. The Council seeks six cubic metres per unit although the Applicant contends smaller areas would suffice. Convenient storage areas and dedicated spaces for bicycles are shown on the plans. I will require a storage area for each unit to be identifiable and marked without prescribing six cubic metres per unit. The Guidelines for Higher Density Housing do not prescribe a precise figure but say storage in small units is limited and thus good storage is appropriate.

Is traffic generation associated with the development acceptable?

1. Some parties referred to the increased traffic that could be expected with the proposal and the impacts on the amenity of the area including in terms of noise and congestion.
2. The proposal will cause additional traffic given the existing premises is vacant. I am satisfied that the additional traffic can be safely absorbed into the existing road network, aided by the McGoun Street extension to link with Judd Street. I am not persuaded any specific road works are required to manage traffic in McGoun Street or at Judd Street, other than moving some bollards to ensure access is convenient to one townhouse (TH.08A).
3. This brings me to the question as to whether the proposal gives rise to traffic impacts that warrant works on several local streets. Having regard to the evidence of Ms Dunstan, Mr Rantino submitted the proponent should provide the following works:
   • McGoun Street and Thomas Street intersection - 'at grade' pedestrian crossing.
   • Thomas Street and Cameron Street intersection - introduction of splitter islands.
4. In response, Mr Gobbo submitted the Council's proposed conditions that the proponent provide these works is unlawful as the works are, on Mr Walsh's evidence, not necessary to be provided for the development.
5. I accept Mr Gobbo's submission that the works are not necessary as a consequence of the development. Unlike the works associated with McGoun Street, I have not been persuaded that the pedestrian ramp - drop kerbs already exist - or the splitter islands are required a direct result of this development. The works may be desirable but that is not the test.[13]

1. Another of the grounds relied upon by some parties is that insufficient parking is included within the development; the reduction in parking sought is too great. Respondent Objectors were particularly concerned about parking infiltrating local streets.
2. Having regard to the evidence of Ms Dunstan and Mr Walsh, I find sufficient parking is proposed for both parts of the development in accordance with standards usually adopted by Rescode (Clause 55). A reduction in the parking requirements of Clause 52.06 is acceptable. Visitor parking is not provided at the Rescode rate but I accept the proposal for 11 spaces within the apartment building is acceptable.
3. In reaching these conclusions, it is important to note that access to public transport is excellent and provision is made within the development for bicycle parking (45 spaces).
4. A number of matters were raised by Ms Dunstan with respect to the detailed layout of the accessway and car park for the apartment building. Most were agreed by Mr Walsh. Having considered the evidence of both witnesses, I will require the following changes with the aim of enhancing the useability of the car park and public footpath on McGoun Street:
   • re-position the gate associated with access from McGoun Street to no less than 5 metres into the site when measured from the kerb and provide details of intercom or other contact facilities to facilitate access for visitors.
   • redesign the accessways to McGoun and Judd Streets so there is no grade associated with the accessways within the footpath space.
   • widen spaces abutting walls and storage areas to 2.9 metres where possible.
   • position the boom gate between visitor and resident parking and/or vary the bicycle storage facility to improve access to car spaces #37 and 38.
5. Mr Walsh's evidence also demonstrates a footpath can be provided around the north-west corner of townhouse TH.04, up to 1.2 metres wide, while still retaining access to the garage of the unit to its north.

1. The focus of the debate before me in this proceeding was relatively confined given the size of the project. I have been persuaded to allow the seven storey apartment building and lower-scale townhouses in their designed form (subject to changes agreed at mediation and some other minor design variations). However, I will require several south-facing units in the apartment building to be reconfigured to provide for an improved level of internal amenity. This will result in the loss of four dwellings, one per level.
2. For the above reasons, I am satisfied that, subject to some modifications, the proposal represents an acceptable outcome taking into account the physical and planning context of the site and locality. I will set aside the decision made by the Responsible Authority and order that a permit be issued subject to conditions.

• construction of a multi-storey storey building with basement for up to 96 dwellings;
• construction of eight townhouses;
• a reduction in car parking;

1. Before the development starts, 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 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 marked as Revision F "VCAT Submission May 2008" but further modified to show:
   • (a) Reconfigure apartments 1.07, 1.08 and 1.09 to two apartments instead of three apartments and setback the apartments 4.5 metres from the southern boundary. Repeat this layout to the floors above for apartments 2.07 to 2.09, 3.07 to 3.09, 4.03 to 4.05;
   • (b) Increase the depth of the balconies to apartments 2.01 and 2.02 to 1.6 metres (that may be achieved by projecting the balcony further northwards);
   • (c) Setback apartment 4.02 a minimum 4.5m from the south boundary;
   • (d) Setback the terraces associated with apartments 5.05, 5.06, 6.04 and 6.05 a distance of 500mm from the west boundary with a corresponding reduction in the width of the architectural collar surrounding the terraces and with or without a corresponding decrease in size of the apartments;
   • (e) Provide a 1.2m wide footpath between the building line and back of kerb abutting TH.04;
   • (f) Provide bin and recycling areas, concealed from street view, for the townhouses;
   • (g) Provide screening measures to townhouse TH.04 in accordance with amended plans SK11.01 to 05 presented at the VCAT mediation hearing;
   • (h) Provide screening measures for the terraces of Units 4.06, 4.07, 4.08, 5.04, 5.05, 5.06, 6.04 and 6.05 to prevent unreasonable interviewing with the top floor of the Quest apartments at No. 185 Lennox Street unless an alternative is to the satisfaction of the Responsible Authority (such as re-orientation of Units 6.04 and 6.05).
   • (i) Provide a staging plan that must include (but is not limited to) the order in which the development is to be staged, including the extension of McGoun Street, landscaping and car parking facilities.
   • (j) Provide the following changes to access and car parking arrangements:
     • (i) Re-position the gate associated with access from McGoun Street to no less than 5 metres into the site when measured from the kerb and provide details of intercom or other contact facilities to facilitate access for visitors.
     • (ii) Redesign the accessways to McGoun and Judd Streets so there is no grade associated with the accessways within the footpath space.
     • (iii) Widen spaces abutting walls and storage areas to 2.9 metres where possible.
     • (iv) Position the boom gate between visitor and resident parking and/or vary the bicycle storage facility to improve access to car spaces #37 and 38.
   • (k) Provide individually identifiable storage for each dwelling.
   • (l) Modify the north walls to townhouses TH.07A and TH.08A to have articulation and greater variation in surface alignment for visual interest.
   • (m) Modify the east wall on the boundary of TH.01 to have an appropriate combination of variations in surface alignment of materials and finishes to avoid a blank wall and to achieve an appropriate level of visual interest when viewed from the adjoining eastern property.
   • (n) All proposed external plant and equipment (including roof top plant and equipment) concealed from view from street level and be acoustically baffled or otherwise sound treated to the satisfaction of the Responsible Authority.
   • (o) All heating and cooling systems not to be visible from surrounding streets.
   • (p) Provide an area set aside within the property boundaries for pits, meters and essential services.
   • (q) Provide details of all acoustic and noise attenuation measures prepared by a suitably qualified acoustic engineer to protect the internal amenity of the dwellings from external noise sources.
   • (r) Provide an updated schedule of all external materials and finishes (including colour samples). The schedule must show the materials, colour and finish of all external walls, roof, fascias, window frames, glazing types, doors and fences. No reflective glass or reflecting material is to be used. The materials are to be modified to show:
     • (i) the townhouses to be finished in accordance with the amended plans SK11.01 to 05 presented at the VCAT mediation hearing.
     • (ii) window tints that allow light to bedsitters and units relying on borrowed light to bedrooms.
   • (s) Provide an updated landscape plan to the satisfaction of the Responsible Authority prepared by a suitably qualified person. When approved, the landscape plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. It must be generally in accordance with the plans prepared by Hansen Partnership drawing nos. LCP-001 (13.03.08) Revision F, LCP-001 (30.05.07) Revision B, LCP-002 (30.05.07) Revision D and LCP-004 (29.05.07) Revision A. The plan must show:
     • (i) the location of all areas to be covered by lawn or other surface materials;
     • (ii) the location of any permanent structures, furniture or other facilities, including seating adjacent to Judd Street;
     • (iii) the botanical and common names of proposed plant species, quantity, size at planting and maintenance regime;
     • (iv) alternative native species for Acanthus and Choisya;
     • (v) the location and specification of a tank for rainwater collection and re-use in irrigation of landscaping (or alternative).
     • (vi) provision of lighting;
     • (vii) detail and location of fencing;
     • (viii) detail and location of seating;
     • (ix) the street trees on the south side of McGoun Street in an aligned row;
     • (x) additional street trees in Judd Street towards the Bridge Road end of the street;
     • (xi) street trees to have tree hoops instead of tree frames;
     • (xii) the bollards in Judd Street relocated as required to ensure convenient access to townhouse TH.08A;

all to the satisfaction of the Responsible Authority.

1. All development must accord with the endorsed plans. Any alterations must be approved 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.

1. Before the use of the land commences, a Green Travel Plan must be prepared to the satisfaction of the Responsible Authority following consultation with the Department of Infrastructure (Public Transport Division). The Plan must be prepared by a suitably qualified person and must encourage the use of non-private vehicle transport modes by the occupiers of the land. The Plan must include, but not be limited to the following:
   • (a) a description of the location in the context of alternative modes of transport and objectives for the Green Travel Plan;
   • (b) outline Green Travel Plan measures for the development including, but not limited to:
     • (i) household welcome packs - tram, train and bus timetables relevant to the local area must be included in the pack of information provided to purchasers and/or occupiers upon occupation of an apartment;
     • (ii) bicycle parking and facilities available on the land; and
     • (iii) monitoring and review.

1. Any existing vehicular crossings made redundant by the building and works depicted on the endorsed plans must be broken out and re-instated as standard footpath and kerb and channel to the satisfaction of the Responsible Authority and at the permit holder's expense.
2. The McGoun Street extension and associated drainage infrastructure is to be designed and constructed in accordance with Council's Standard and all relevant Austroads Standards. The applicant is to submit detailed engineering design drawings to Council's Engineering Services Unit for assessment and approval one month prior to the commencement of works.
3. The installation of a new vehicle crossing servicing the basement car park is subject to compliance of the following:
   • (a) the proposed vehicle crossing is to be constructed in accordance with City of Yarra Standard Drawings and Specifications; and
   • (b) the design and construction of the proposed vehicle crossing must also satisfy the requirements of Council's Services Contracts Unit's Vehicular Access into Properties (Info Sheet and Application Form) before a vehicle crossing permit can be issued.
4. The grated pit at the east end of the Right of Way is to be fitted with a galvanised safety grate at a cost borne by the permit holder.
5. Within one month of the completion of the construction works, the east footpath is to be reconstructed in accordance with City of Yarra Standard Drawings and Specifications. The applicant is to submit detailed engineering design drawings to Council's Engineering Services Unit for assessment and approval one month prior to the commencement of works.
6. Any damaged road(s) and footpath(s) and other infrastructure adjacent to the development site must be reinstated to the satisfaction of the Responsible Authority.
7. The permit holder must not commence any civil infrastructure works on any Public Highway without obtaining official consent from the Responsible Highway Authority.

1. No fewer than 136 car parking spaces must be provided on the land at all times unless otherwise with the written consent 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:
   • (a) be provided and completed to the satisfaction of the Responsible Authority prior to the occupation of the development hereby permitted in accordance with the staging plan endorsed under Condition 1;
   • (b) thereafter be maintained to the satisfaction of the Responsible Authority;
   • (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. Unless otherwise with the written consent of the Responsible Authority, the provision of dedicated on-site car parking as follows:
   • (a) 1 space per 1 and 2 bedroom dwelling;
   • (b) 2 spaces per 3 bedroom dwelling; and
   • (c) a total of 11 visitor spaces.
4. Prior to the occupation of any dwelling, car parking must be allocated to each unit or townhouse in accordance with the endorsed staging plan (Condition 1).

1. The development must be provided with external lighting capable of illuminating access to each car parking space, motorcycle parking space, bicycle parking space, store, rubbish bin, recycling bin, pedestrian walkways, stairwells, lift, 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, to the satisfaction of the Responsible Authority.

1. Prior to occupation of the development, all landscaping works must be carried out in accordance with the endorsed landscaping plan and endorsed staging plan, and thereafter be maintained to the satisfaction of the Responsible Authority.
2. The carrying out of street tree planting works for Judd Street and McGoun Street must be in accordance with the endorsed landscaping plan and endorsed staging plan to the satisfaction of the Responsible Authority.

1. Provision must be made for the drainage of the site including landscaped and pavement areas all to the satisfaction of the Responsible Authority.
2. All piping and ducting, other than for drainage above the ground floor storey of the building must be concealed to the satisfaction of the Responsible Authority.

1. Prior to the occupation of the dwellings the applicant must submit in consultation with Council approval by the Responsible Authority a waste management plan. Once approved the waste management plan must be complied with. Collection may be undertaken by private contractors or by Council Service.
2. Rubbish, including bottles and packaging material, shall at all times be stored within the building and screened from external view. All waste collection and recycling collection to be undertaken by private contractors or Council Service between the hours specified in Council's Local Law No. 3.

Department of Infrastructure - Director of Public Transport Condition

1. No more than 136 car parking spaces are to be provided on site without the prior consent of the Director of Public Transport.

1. Before the commencement of the development hereby approved either:
   • (a) Certificate of Environmental Audit indicating the land is suitable for residential use must be issued for the land in accordance with Section 53Y of the Environment Protection Act 1970; or
   • (b) an environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Section 53ZS of the Act that the environmental conditions of the land are suitable for residential use.
2. A copy of the certificate of environmental audit and/or statement, and the complete audit report and audit area plan must be submitted to the Responsible Authority.
3. The use and/or development/buildings and works allowed by this permit must comply with the directions and conditions of any statement of environmental audit issued for the land.
4. Prior to the occupation of dwellings a letter must be submitted to the Responsible Authority by an Environmental Auditor accredited with the EPA, to advise that all construction and remediation works necessary and required by an environmental audit or statement have been carried out.

1. Any handling and disposal of contaminated site soil must be in accordance with the requirements of any statement of environmental audit issued for the land, the requirements of the Environment Protection Authority and the Environment Protection Act 1970.

1. Prior to commencement of construction works, a pre construction site inspection and condition assessment of all right of ways and road ways abutting the development is to be prepared and in the event of damage during construction will be required to be repaired by the developer, at the developers cost and to the satisfaction of the Responsible Authority.
2. Before any 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 for or include the following:
   • (a) a pre-conditions survey of all adjacent Council roads and footpaths;
   • (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) methods for management of noise and general nuisance;
   • (g) site security;
   • (h) waste and stormwater treatment;
   • (i) construction program;
   • (j) preferred routes for trucks delivering to the site;
   • (k) parking facilities for construction workers;
   • (l) delivery and unloading points and expected frequency;
   • (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) traffic management measures 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. During the construction, the following must occur:
   • (a) any stormwater discharged into the stormwater drainage system to 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; and
   • (f) All site operations must comply with the EPA Publication TG302/92.
2. The development, once commenced, must be completed to the satisfaction of the Responsible Authority.

1. 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. This permit will expire if the development is not commenced within two years from the date of this permit. All development must be completed within four years from the date of this permit. The Responsible Authority may approve extensions to these time limits if requests are made within three months of expiry.

[1] A review against failure is a deemed refusal under Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998.

[2] An agreement was reached with some Respondent Objectors for changes to address concerns such as overlooking. The agreement is reflected in plans marked up at a Tribunal mediation and tendered to me by Mr Rantino. Any permit to issue is to include these changes.

[3] I inspected the site and locality prior to the hearing. I also undertook an accompanied inspection on Wednesday 14 May 2008 viewing from the Murray property at the top floor of the Quest apartment building (No. 185 Lennox Street).

[5] Pursuant to Clause 32.04. The Guidelines for Higher Density Housing are relevant pursuant to Clause 19.03.

[6] Pursuant to Clause 32.01. The requirements of Clause 55 would apply to two-three storey dwellings although the proposal has been approached as a single development by the Council and Applicant. I have considered Clause 19.03 and been mindful of the requirements of Clause 55 when assessing this aspect of the proposal.

[8] That condition is no more than 131 car parking spaces be provided on site without the prior consent of the Director of Public Transport. I note there is a total of 136 spaces in the plans and I have adopted that figure instead.

[10] There was a concern by the Council that the north and east elevations require additional visual interest and that was agreed by the Applicant. It can be dealt with by permit conditions.

[11] Design Suggestions 2.6.2 and 2.9.2.

[12] Healy v Surf Coast SC [2005] VCAT 990.

[13] Parkmore Properties Pty Ltd v Macedon Ranges SC [2004] VCAT 488 at paragraphs 1 and 5.