1. The Council advised that if it had been in a position it would have refused the application on 11 grounds. Since the lodgement of the amended plans several grounds of concern have been addressed. The Council now relies upon the following grounds:
   1. The proposed development by virtue of its excessive building and street wall heights, scale, form, minimal setbacks, and unsympathetic detailing and materials, constitutes an overdevelopment that is unacceptable at this site context and lacks policy justification.
   2. The proposed development fails to accord with the purpose of the Heritage Overlay (Clause 43.01), the objectives of Council's Heritage Policy (Clause 22.04) and Heritage Guidelines of the City of Stonnington as it will significantly detract from the heritage value of the heritage place.
   3. The proposed development will cause unreasonable off-site amenity impacts through the loss of daylight, visual bulk, overlooking and overshadowing.
   4. ...
   5. The proposed development will result in an unreasonable flooding risk.
   6. The proposal does not provide an adequate level of internal amenity and fails to achieve a satisfactory sustainable design outcome.
   7. ...
   8. The proposal will unreasonable impact on the quality of potential future open space at 27 Clifton Street through overshadowing and visual bulk.
   9. ...
   10. ...
   11. The proposed development may generate unreasonable wind impacts and adversely impact on the public realm, including the potential future open space at 27 Clifton Street.

2. Several statements of grounds were lodged with the Tribunal by objectors to the proposal who did not wish to participate in the hearing. These statements raised issues of height, overshadowing, traffic and amenity impacts on nearby apartments.
3. One objector to the proposal, Cecil Place Pty Ltd (Cecil Place), the owner of the heritage building at 8 Cecil Place sought to participate at the hearing and raised a number of grounds regarding the proposal's response to the heritage context of the site, amenity impacts and response to State and Local Policy.
4. Cecil Place also raised a question of law to be considered regarding the extent of consideration to the exceedance of the preferred maximum building height and to the meaning to be given to the phrase 'significant community benefit' as it appears in clause 4.4 Schedule 1 to clause 37.08-6 (ACZ1).
5. The main issues to be considered by the Tribunal fall under the following headings:
   • Legal
   • Built form
   • Amenity
   • Traffic and Car Parking

LEGAL ISSUE - IS THE DEMONSTRATION OF THE ACHIEVEMENT OF A 'SIGNIFICANT COMMUNITY BENEFIT' A JURISDICTIONAL FACT?

1. The question of law set out above is determined pursuant to Clause 66(1) (b) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 by the Legal Member of the Tribunal constituted for the purposes of the proceeding.
2. Clause 4.4 Schedule 1 to ACZ1 'Design and development' has a heading 'Height and massing guidelines'. One of the dot points under the heading provides:
   • The preferred maximum building height may be exceeded in some circumstances if:
     • It can be demonstrated that a significant community benefit can be achieved; and
     • It continues to meet the objectives, requirements and guidelines in relation to visual impact and overshadowing with increased upper level setbacks.
3. Cecil Place submits the Tribunal does not have jurisdiction to approve the proposal in its current 12 storey form as it exceeds the preferred maximum height of 8 storeys referred to under ACZ1.
4. Cecil Place submits that to exceed the preferred maximum height the above first sub dot point must exist as a pre-condition before discretion can be exercised to consider the exceedance of height and this pre-condition, namely demonstration that 'a significant community benefit can be achieved', has not been demonstrated. Use of the wording 'demonstrated' it was submitted suggests this is a jurisdictional fact.
5. Cecil Place describes the second sub dot point as a policy or guideline intended to assist in exercising the discretion provided the first circumstance exist.
6. Clause 37.08-6 provides 'a permit may be granted to construct a building or construct or carry out works which is not in accordance with any design and development requirement in the schedule to this zone unless the schedule to this zone specifies otherwise'.
7. Clause 4.4 Schedule 1 provides that 'a permit cannot be granted to vary a requirement specified as mandatory within this schedule (including the Precinct Maps and Precinct Built Form Requirements at Clause 5.0). All other requirements this schedule [sic] are to be met unless the responsible authority is satisfied that an alternative proposal is acceptable. The Guidelines should be met, where appropriate'.
8. There are no mandatory requirements. Bensons contends that the two sub dot points are guidelines that can be taken into account in assessing the appropriateness of the height that exceeds the preferred maximum height. The first sub dot point is not a mandatory precondition or limit to the exercise of discretion.
9. The Council contends the guideline amounts to a test and the preferred height may only be exceeded where the test is satisfied. Whether it is classified as a 'test' or 'guideline' these must be exercised prior to the discretion to exceed the preferred height. Although the Council considered there remains the 'ability to issue a planning permit for a height that exceeds the preferred building height and which did not meet the two limbed test for exceedance above the preferred height', this should only be exercised in exceptional circumstances given the clear parameters set out for the exercise of discretion to exceed the preferred height.
10. Relying upon the Supreme Court decision in Abercrombie v Salter Architects[3], Cecil Place submits the specification 'otherwise' may occur by implication provided such implication be 'necessary, definite and precise' it is therefore not necessary to include the words that expressly state 'a permit cannot be granted' or a 'permit cannot be granted unless ...' The use of the word 'otherwise' in this context clearly means 'other than the default position that it can be done'.
11. In Abercrombie, Emerton J considered the wording of Design and Development Overlay Schedule 1-A2 which provides:

The maximum height of any part of a building is four storeys or 15 metres above natural ground level, whichever is the lesser height. A permit may be granted to increase the height of any roof structure or chimney by 1.5 metres provided no more than 20% of the roof area exceeds 15 metres in height.

It is common ground that the requirement that the Schedule 'specify otherwise' in clause 43.02-2 requires that which is 'otherwise' specified to be clearly and precisely stated. In this case the Schedule does not expressly state that a permit may not be granted to vary the requirements in the Schedule. However, I accept that specification otherwise may occur by implication, as was submitted by the applicant, with the caveat that any such implication must be 'necessary, definite and precise'.

1. Bensons also relies upon the Court's decision in Abercrombie referring to the Court's conclusion that:

... in combination with the word 'should' at the beginning of cl 2.1 and the clear intention in the parent clause that the height restriction be discretionary unless clearly specified to the contrary, the Schedule stipulates a discretionary height limit for buildings, and a discretionary height limit for roof structures and chimneys. The maximum building height may be varied and the maximum height of roof structures and chimneys may be varied.

1. In this case Cecil Place submits it is not a matter of whether a permit can or cannot be granted to exceed the preferred maximum height, rather the question to be considered is 'if a permit can be granted are there any limits or pre-conditions to the exercise of that discretionary power?'
2. I accept that even if the two limbs are met there may be circumstances where it is not appropriate to allow the exceedance of the preferred height.
3. The relevant provisions fall under the heading 'guideline' and it is provided that 'guidelines should be met, where appropriate'. This suggests that discretion can be exercised as to whether, where appropriate, either one or both limbs referred to above are met.
4. Schedule 1 refers to 'requirements' and to 'guidelines' and distinguishes between the two. In relation to 'requirements' it is stated that 'all other requirements in this schedule are to be met unless the responsible authority is satisfied that an alternative proposal is acceptable'. In relation to 'guidelines' it is stated that 'the Guidelines should be met, where appropriate'. Whilst the terminology is different with the use of 'are to be met unless' and 'should be met' the outcome is the same - they are both discretionary. With regard to requirements, there is a discretion for the decision maker if 'satisfied that an alternative proposal is acceptable'. With regard to the guidelines these should be met, but there is discretion to consider 'where appropriate'.
5. The particular provision referring to exceeding the preferred height sits under what is termed a 'guideline'. A reading of the provisions suggest that as a guideline it cannot amount to a precondition or test that is required to be met in every application where the preferred height is exceeded. It 'should be met, where appropriate'.
6. Cecil Place submits that to specify otherwise is not limited to a power to absolutely prohibit the grant of a permit to vary a requirement. It includes the power to specify any necessary precondition such as the requirement of a 'significant community benefit'.
7. Much was said regarding what constituted 'significant community benefit'. There is nothing in the planning scheme that provides any assistance regarding this phrase. The common phrase used is 'net community benefit' referred to in all planning schemes at clause 10.
8. The provision is an outcome of consideration of Amendment C172 by a Panel. It is noted that the Panel recommended that 'the preferred maximum building height may be exceeded if:

It can be demonstrated that a significant community benefit can be achieved in relation to improvements to the public realm.

It meets the objectives in relation to visual impact and overshadowing and increased upper level setbacks.[4]'

1. The reference to 'in relation to improvements to the public realm' have not been translated into the planning scheme. This was also commented upon in the Tribunal determination Third Street Pty Ltd v Stonnington CC[5].
2. I accept that a 'significant community benefit' is not established by merely delivering benefits or planning outcomes that would be reasonably required to be provided under the zone provisions such as improvements to the public realm at street level and ground floor articulation. Nor would the provision of additional dwellings within the added height be considered a significant community benefit.
3. The Council submitted 'it requires an Applicant to demonstrate a substantial benefit to the community (not to the Applicant) than would otherwise be required from an acceptable planning outcome to obtain the benefit or bonus of being able to develop higher than contemplated by the preferred building heights'. Council also considered that the benefit should be relevant to the exceedance. The more substantial the exceedance the greater the community benefit expected to be delivered.
4. It is understood that Bensons offered the upgrading of the abutting Council car park into a park as envisaged in the Chapel Re-vision 2013-2031 Structure Plan. This was not accepted by the Council due in some respects it is understood to the issues about the relocation of the car spaces.
5. The outcome of this offer would have been a 'significant community benefit' and would have also met what was envisaged by the panel 'in relation to improvements to the public realm'. However, as the phrase is not now confined to 'improvement to the public realm' a significant community benefit could come in a variety of forms.
6. Both Mr McGurn and Mr Biles expressed concern that as there was no definition of what constituted a 'significant community benefit' and that this could lead to a defacto development contribution when there was no provision for the imposition of such a levy. Both looked at this phrase as relating to whether the building at the proposed increased height provided a significant community benefit.
7. It cannot be read into the guideline that the reference to the exceedance of the preferred maximum building height 'may occur in some circumstances' translates into only when 'demonstrated a significant community benefit'.
8. There is no indication of what circumstances may lead to the exceedance of the preferred maximum height if it is demonstrated that a significant community benefit can be achieved. 'Some circumstances' suggest there may be other circumstances where the preferred maximum height can be exceeded without the requirement to demonstrate a significant community benefit. The whole phrase is rather unsatisfactory as there is no confinement in the phrase to permitting the exceedance of height only in circumstances where a significant community benefit is demonstrated.
9. This clause is distinguished from the provision referred to by Cecil Place in Clause 2 of Design and Development Overlay Schedule 63 to the Melbourne Planning Scheme which provides:

Development should not exceed the Preferred maximum height in Table 1.

All developments that exceed the Preferred maximum height in Table 1 must demonstrate each of the following:

A demonstrable benefit to the broader community that include among others: [sic]

• Exceptional quality of design.
• A positive contribution to the quality of the public realm.
• High quality pedestrian links where needed.
• Good solar access to the public realm.

1. It was noted that in applying the above provision on two occasions an offer was made to contribute towards affordable housing[6] . In both decisions of the Tribunal the attributes nominated above were found to exist, as well as the offer in relation to the contribution towards affordable housing.
2. In this case there are no guiding provisions, it is merely a matter of weight to be given in each case in initially determining whether the exceedance of the preferred maximum height is one of the circumstances where consideration should be given as to whether 'it can be demonstrated that a significant community benefit can be achieved'. This consideration is not a jurisdictional fact but a guideline to be considered in exercising discretion as to whether the preferred maximum height can be exceeded.

1. The subject site is located within the Chapel Street Activity Centre 70 metres to the east of Chapel Street and sits between two smaller streets, Cecil Place and Anchor Place. Abutting the site immediately to the east is an area currently used as a car park but identified within the 2013-2031 Chapel Re-Vision Structure Plan as a 'potential future park'. To the south and south east of the site across Anchor Place are 13 storey and 5 storey apartment buildings. To the east on the other side of the car park fronting Clifton Street is an 8 storey apartment building. Immediately abutting the site to the west in Cecil Place is a two storey Victorian-era heritage building and opposite the site is a car park.
2. Mr Biles observed three principal influences on the physical context of the site being a series of short streets running east from Chapel Street terminating in closed or constrained access to the eastern hinterland; redevelopment of generally taller buildings behind the Chapel Street frontage and a strong juxtaposition of building height, massing and grain size ranging from single storey to 12 storeys.
3. Mr Shepherd's evidence was that state and local policy clearly envisage substantial change and the creation of a new high-density character to accommodate intensification, whilst also requiring respect to the existing and preferred character of the area. ACZ1 one contains general and precinct specific design objectives. The subject site sits within Precinct PG-1. The following discretionary requirements for built form are nominated:
   • A preferred maximum building height of 27 metres (8 storeys)
   • At Cecil Place, a preferred 12 m street wall height, with materials and form to be differentiated above that height and a 4m setback above 21 metres
   • At Anchor Place, a preferred three metre building setback, a maximum 12 metre street wall height, a 3 metre setback above the street wall and a further 3 metre setback above a height of 21 metres
   • At the east-west oriented common boundary with the adjoining car park, a maximum height of 9.5 metres, with development above this setback within a 29° plane.

1. Of importance under ACZ1 is consideration of the transition of a building to nearby heritage buildings and places.
2. The Council considered the proposed development fails to accord with the purpose of the Heritage Overlay (Clause 43.01), the objectives of Council's Heritage Policy (Clause 22.04) and Heritage Guidelines of the City of Stonnington as it will significantly detract from the heritage value of the heritage place.
3. Whilst the subject site is located within Chapel Street Precinct Heritage Overlay (HO126) the buildings occupying the subject site are ungraded modern buildings. Immediately to the west of the subject site is the A2 graded double storey Victorian era building at 8 Cecil Place.
4. Mr Raworth, an architectural historian who gave evidence on behalf of the Council, considered the amended plans to be 'generally satisfactory with regard to heritage considerations, including at the interface with Anchor Place'. He however raised an issue in relation to the built form presentation to Cecil Place and the adjoining heritage building to the immediate west at 8 Cecil Place. In his view the amended proposal presents a sheer four-storey podium façade to Cecil Place that would, due to its façade height, visually dominate the streetscape and the adjacent heritage building. He recommended the fourth level of the podium be either deleted or setback from the street boundary.
5. Bensons presented a Level 3 Floor Plan - Option to Mr Raworth which showed the previous two apartments fronting Cecil Place at this level combined into a one x 2 bedroom apartment setback from Cecil Place 4m and from the western boundary between 5 and 5.7metres. By incorporating this element within the tower portion of the proposal, the podium height more closely aligns with the cornice and frieze of the adjoining heritage building.
6. We agree with Mr Raworth that this suggested change addresses the visual domination of the podium and results in an acceptable outcome in terms of the relationship to the heritage building.
7. In our view this respects the built heritage within the precinct and meets policy in Clause 22.04 which seeks to ensure that new buildings 'complement the ground and first floor proportions and street wall height of adjoining significant or contributory buildings'.

1. The Council submitted the proposed development, by virtue of its excessive building and street wall heights, scale, form, minimal setbacks, and unsympathetic detailing and materials, constitutes an overdevelopment that is unacceptable at this site context and lacks policy justification.
2. In this respect the Council submitted as an outcome of an extensive process for the introduction of ACZ1 via Amendment C172 now applying to the subject site preferred heights, street wall heights, setbacks and overall guidelines were incorporated into the planning scheme. ACZ1 provides that 'the preferred maximum building height may not be achievable on every site, particularly smaller sites and/or constrained sites'
3. The preferred maximum building height is identified in the map at clause 5.3-3 Schedule 1 as 27m (8 storeys) under Prahran Built Form requirements. The overall height of the proposed building, not including the two level plant and equipment area, is around 40m (12 storeys). This exceeds the preferred maximum height by 13m or 4 storeys.
4. A consideration of a building that exceeds the preferred maximum height identified in the planning scheme must be considered as a whole and not just the elements of the additional height[7]. We adopt the views expressed by the Tribunal in Garden Street Investments and David Earle Architects. What is proposed must ultimately be site responsive with preferred maximum heights identified in the planning scheme in order to provide guidance and an expectation of the built form outcome sought.
5. The expectation is that built form under Schedule 1 to the zone will be setback 4m from Cecil Place above a 12m street wall rising to 21m and a setback of 3m to Anchor Place, a 12m street wall with a setback of 3 metres above that height, with a further of 3 metres above a height of 21metres.
6. What is now contemplated, incorporating the amendments proposed as a result of Mr Raworth's evidence, is a street wall to approximately 10m to Cecil Place then a 4m setback up to level 9 with an 8m setback to the upper two levels. A street wall of approximately 12m is contemplated to Anchor Place with a 0.9m setback at the ground floor level then above the street wall a setback of 6m rising to 21m with an 11m setback for the upper two levels.
7. Consideration is required as to the context of the site and as to whether the context provides justification for the additional height above the preferred 8 storeys. It was submitted that although located in a side street off Chapel Street, consideration is required to be given to the heritage context of Chapel Street and the views of the built form from within Chapel Street. Clause 4.4 Schedule 1 'Heritage sites guidelines' relates to respecting the built heritage and sympathetically responding to the urban fabric identity and character of the Activity Centre.
8. In relation to visual bulk the scheme seeks 'to ensure that new developments response appropriately to the Activity Centre's historic fabric and character'. Council contends that a significant higher built form is inappropriate in this context, that the built form visible from Chapel Street is still excessive. Additionally it says that the proposed height will impact adversely on the amenity of the nearby residents and the potential future open space through visual bulk, overshadowing and loss of daylight. Whilst Council acknowledges it the modulating effect of the curved form, it says the tower portion of the building presents as a singular mass of considerable bulk. It says the projecting balconies further emphasise the bulk.
9. From the perspective of the relationship with the heritage building to the west Mr Raworth took no issue with the height as proposed of 12 storeys as he considers that, in heritage terms, the lower level relationship to the streetscape is more importance than the overall height of the building.
10. Mr Sheppard from an urban design perspective supported the overall scale of the proposed development at 12 storeys. He observed that whether at the preferred maximum of 8 storeys or the proposed 12 storeys, the building will be visible, but in his view the additional height will not result in a dominant visual impact in Chapel Street. He says that the sculptural form of the upper part of the proposal and its articulation by vertical copper-coloured metal fins responds to what is sought in ACZ1.
11. The original height proposed was for 14 storeys and it was Mr Sheppard who recommended the overall height be lowered, as well as an increase to the setbacks from Cecil and Anchor Place at the uppermost levels to, in his view, lessen the visual impact of the additional height above the preferred 27m.
12. Reference and reliance was made to the nearby Trilogi building[8] which is one storey higher than the proposed development and is located across Anchor Place immediately to the south east. Mr Biles considered 'the introduction of a 12 storey building on the subject site opposite an existing building of a similar height fronting Anchor Place and abutting structures that, although lower in height, serve to transition building mass and height to Chapel Street, cannot be seen as 'out of context' with the prevailing pattern of development existing and. encouraged in policy'.
13. We agree that the visual impact as seen from Chapel Street is important. The increased setback at level 4 in Cecil Place and the reduction in height, coupled with the proposed façade treatment have reduced the impact of the proposal from this and other viewpoints. The building will be readily seen down Cecil Place from Chapel Street but only in passing. The upper levels will be seen above the generally 2 and 3 storey built form along Chapel Street but so also are the recessed upper levels of the Trilogi Building to the south east.
14. In addition to the Trilogi building, the existing 8 storey building to the east on the other side of the car park at 25 Clifton Street is of relevance to the consideration of the context of the site. Council in particular sought to differentiate the Trilogi building, submitting it is on a substantially greater site with three street frontages, is not encumbered by heritage controls, has a direct abuttal to High Street, a main road, and was approved under a different, albeit earlier set of planning controls.
15. The presentation of the building to the east to the Council car park is of particular concern to Council. Whilst not part of Amendment C184 which seeks to apply a Public Acquisition Overlay over a number of properties, as it is already in Council ownership, the car park has been designated under Chapel Re-Vision as a 'potential future park' and is proposed to be part of a series of green pedestrian links. The proposed scale of the built form particularly the presentation of the tower as an extensive breadth and bulk to the public realm is considered by Council to be unacceptable in relation to the future park.
16. Mr Sheppard included a useful illustration of the 'sightlines' from opposite the building in both Anchor and Cecil Place, generated from the preferred envelope, observing that the narrow streets would limit the visual impact of the projection of the upper levels beyond the line of sight, as the proposed street wall would fill the normal pedestrian field of view from within Cecil Place and Anchor Place. We observe, however, that from even the narrowest section of the potential future open space, the full width of the building would be visible of every level above level 4.
17. The subject site is surrounded by highly varied built form, both in height and bulk, even ignoring the irregularly shaped existing car park. For example, the visual impact of the Trilogi building when viewed from the east and north is substantially reduced by the upper-level setbacks. We note that land immediately to the west of the site has a 6 storey preferred maximum building height, that there has been a recent application on 8 Cecil Place for a 6 storey development. It appears that the east side of the proposal will be exposed over the long-term.
18. We acknowledge the applicant's success in moderating the bulk of the building by reducing the size of the upper levels. The design treatments proposed and choice of materials of the exterior is also successful in adding interest and in responding at ground level to the unresolved carpark interface. We are not persuaded, however, that at 12 storeys the proposal is acceptable following the recently adopted ACZ1 which nominates 8 storeys in this location and the demonstration of a 'significant community benefit' has not been resolved.
19. We have reached this conclusion based on our assessment of the visual impact of the built form when viewed from Chapel Street, the visual bulk to the east, and in other oblique views. Notwithstanding this conclusion, based on the evidence we consider that we should exercise the discretion available to us to allow an additional two levels above that preferred for the site. The recession of the top two levels and the design treatment of the exterior of the building as a whole has influenced our decision to allow an increase in height above the preferred maximum. We will require that two of the levels 7, 8 or 9 be deleted.

1. It was submitted that the proposed development will cause unreasonable off-site amenity impacts through the loss of daylight, visual bulk, overlooking and overshadowing,

1. As highlighted by Mr Biles there are three areas that raise concerns regarding shadowing from the proposed development; shadowing to Anchor Place; shadowing to the north elevation of the apartments in Anchor Place and shadowing impacts to the car park/future park to the east.
2. With regard to potential shadowing to Anchor Place, ACZ1 requires that 'buildings and works should not cast additional shadow to the south side footpath of east-west streets between 9.00am and 3.00pm at the Equinox. This guideline may not be achievable if the building heights and setbacks specified at Clause 5 would result in overshadow to this part of the footpath'.
3. Due to the narrowness of Anchor Place, at 8 storeys a building on the subject site would cast a shadow. Shadow from the 12 storey proposal falls across existing shadows, the roof and north elevation of nearby buildings.
4. Shadowing will be increased to the north elevation of apartments at 4-10 and 12 Anchor Place. This to some extent must be expected given the preferred maximum height of buildings in this location is now 8 storeys and Anchor Place is narrow. Although the setback of the proposal is not compliant at the ground level interface, opposite these apartments the proposed development adopts a 3 storey street wall with a setback of 3m at level 3 up to a height of 6 storeys. It is then setback 6m to the tower form. The height of the street wall and setback are as contemplated under ACZ1.
5. The shadow that occurs from the current low scale building on the subject site is limited. As a result of the proposal there will be an increase in shadow particularly to apartments at 4-10 Anchor Place between 9.00am until 12.00pm with the north elevation of the apartments not in shadow from approximately 2.00pm. There will also be an impact on apartments at 12 Anchor Place, particularly to the upper two levels until approximately 3pm. We find that in this location, the additional shadow is acceptable.
6. ACZ1 requires that 'buildings and works should minimise overshadowing of existing and potential future open space ... at the winter solstice'. Council considered the proposed development will have an unreasonable impact on the quality of the potential future open space through overshadowing.
7. The planning scheme contemplates a building of 8 storeys to the east of the car park. An 8 storey building has already been developed on the eastern side of the car park at 25 Clifton Street.
8. As highlighted by Mr McGurn

The 'existing' overshadowing plans prepared for the Winter Solstice show that:

• The car park is already substantially in shadow from existing buildings at 9am.
• The area in shadow diminishes at 10am and there are reasonable areas in sun at 11am. At both times there is no impact from the proposed building.
• At 12 midday the building at 22 Cecil Street [Place] continues to cast moderate shadows over the car park, but with some areas remaining in sun. At this time the proposed building does not overshadow this area.
• At 1pm the shadow from 22 Cecil Street [Place] is similar and the available areas in sun are diminished by shadow cast by the proposed building, nut not in my opinion in a significant way.
• At 2pm the proposed building will have the greatest shadow impact on the car park/future park, with some more limited areas remaining in sun. At this time notable shadow impacts are caused by the building at 22 Cecil Street [Place].
• At 3pm on the Winter solstice the car park/future park will be entirely in shade, generated substantially by the proposed building at [and] the existing building at 22 Cecil Street [Place].
• At the September Equinox, the proposed shadow impact on the car park is relatively limited until 2pm and 3pm. At each time, there remain some areas in sunlight and my observation is that the shadow impacts are largely attributable to the lower and middle levels of the building.

1. In terms of the car park/future open space area to the east the additional 4 storeys will have little or no impact with regards to overshadowing at the winter solstice/equinox with the shadow diagrams indicating there is little or no difference in the extent of shadow up until 2pm. Given our decision to lower the building by two levels, a marginal improvement could be expected in the impact of shadows at the Winter Solstice. Given the context and policy expectations of built form within this location it is considered the overshadowing impact is acceptable.

1. There is the ability for views between the proposed building and the habitable room windows and balconies of the 5 storey building at 4-10 Anchor Place directly opposite. Mr McGurn made some recommendations regarding screening to be included on the southern elevation of the podium levels to provide some limiting of views towards the apartments on the opposite side of Anchor Place. Mr Sheppard suggested that, for example, where the existing and proposed dwellings directly face each other, some angled vertical fins could be introduced on the Anchor Place façade at levels 1 and 2 to limit the potential for direct views across the street, although he says full compliance with ResCode B22 is unnecessary in this location.
2. We agree that some additional privacy screening would be beneficial where dwellings are directly opposite.

1. Council submitted the proposal does not provide an adequate level of internal amenity and fails to achieve a satisfactory sustainable design outcome. Referring to a number of apartments with a westerly aspect that in its view have a poor level of amenity in relation to daylight. It was critical of some apartments with long narrow living areas, kitchenettes within hallways and wholly enclosed open space.
2. With respect to daylight, a daylight assessment was provided with the permit application. This assessment predicted that 98% of bedrooms and 69% of living rooms achieved the desired daylight levels outlined in the Sustainable Design Assessment in the Planning Process (SDAPP). The assessment highlighted that due to the narrowness of Anchor Place and development opposite daylight access to south facing apartments on levels 1-5 were obstructed. To achieve an acceptable outcome a significant setback from the south boundary is required. L-shaped kitchens do not provide adequate daylight and reconfiguration was recommended. The addition of windows to the north in the southwest living spaces was also recommended.
3. As a result of the amended plans there was no updated assessment, however Bensons provided an email from Mr Lindsay Richardson, Director Sustainable Development Consultants Pty Ltd[9] indicating that

As discussed yesterday I've reviewed the change in plans and have compared the previous modelling results to the revised plans. Based on this assessment and assuming that there are no major changes in surrounding conditions I believe that if we were to remodel the development the likely outcome would be that 83% (or 56 out of 67) living zones would meet the requirements.

So it performs a little better than previously. Bedrooms will still be fine like they were in the original modelling.

1. We consider the amended plans provide acceptable internal amenity, noting that in areas such as kitchens, task lighting is required even where daylighting criteria are met.

1. The statutory requirement for the proposed development is a total of 109 car spaces comprising 83 resident, 13 resident visitor, 13 office, 6 shop/retail and 7 food and drink.
2. A total of 87 car spaces are proposed resulting in a shortfall from the statutory requirement of 22 car spaces accordingly a reduction in the number of car spaces is sought. Of the 87 car spaces to be provided 79 are for residents, 1 each for the shop/retail and food and drink premises (3) and 5 for office use.
3. Council raised concerns regarding the impact that increased traffic movements are likely to have in Anchor Place and the nearby streets, particularly as these streets are relatively narrow and one way. In particular the Council considered the increased traffic would result in the daily expected maximum being exceeded on Clifton Street. The reduction in the height of the proposed development, along with the reduction in the number of dwellings, would in Council's view reduce the likely impact of traffic in the area and particularly in Clifton Street. As Clifton Street is one way northbound, vehicles from Anchor Place wishing to travel north are required to use Clifton Street but if vehicles wish to travel south or onto Chapel Street, the car park off Clifton Street is likely to be used as a shortcut.
4. Mr Kiriakidis, an expert traffic engineer, gave evidence that 'the traffic generated by the proposed development is low at 26 vehicles per hour during peak periods (1 vehicle every two minutes) and 229 vehicles over the course of a typical weekday'. He acknowledged that the proposed development would increase daily activity on Anchor Place to around 307 vehicles per day that is 174 vehicles per day, but at the same time with no vehicle access proposed from Cecil Place in the substituted plans, traffic activity will be reduced in this location by 36 vehicles per day.
5. Clifton Street, according to Mr Kiriakidis currently carries around 1,567 vehicles per day. Clifton Street is classified under clause 56.06-8 as an Access Street Level 1 with a limit of up to 2,000 vehicles per day. There is no classification for Anchor Place but in Mr Kiriakidis' view equates to an Access Place with a carrying capacity of 300 to 1000 vehicles per day.
6. We accept Mr Kiriakidis' post development (net) estimate of 174 vehicles per day, and that the combined in and out movements can be absorbed into the existing street network in this location. In accepting his evidence we are mindful that the area has been recently rezoned with strong expectations of more intensive development close to public transport with residents in such areas not necessarily owning a car.
7. The requirement for short term car spaces for residential, office and retail visitors generated by the proposed development is estimated to be 11 car spaces on a weekday and weekend during the daytime with a demand for 7 car spaces during the weekday and weekend evening period. Council considers that at least 7 on site spaces should be provided for residential visitors.
8. Whilst there is on street parking nearby the evidence indicated these car spaces are highly utilised with limited vacancies throughout the day. There are three Council-owned off street car parks including on the south side of Cecil Street immediately to the east of the subject site comprising 37 car spaces; a ground level car park to the north side of Cecil Place comprising 17 car spaces and sits within the larger King Street car park comprising 340 car spaces. The only off street car park in the vicinity that is open at night and weekends is the one immediately to the east with the others either closed in the evening or on Sunday.
9. On our assessment and the evidence of Mr Kiriakidis, who concluded at least 15 accessible or vacant car spaces are available within the nearby area, there are sufficient car spaces provided on-street or within the nearby Council car parks to accommodate the short term demand without the need to provide on-site car spaces. We also note Mr Kiriakidis' comments regarding the underutilisation of the Council car parks compared to the over utilised on street car parking, a situation that may require redress by the Council.
10. Following our consideration above that two levels should be deleted we have concluded that although there is a reduction in the number of dwellings there should not be a consequential reduction in the number of resident car spaces to be provided. We consider this may give the permit applicant an opportunity to change the mix of dwelling sizes.
11. A loading facility 7.9m by 4m is to be located on site in an area at the ground floor adjacent to the refuse room. The area proposed exceeds the requirements of clause 52.07 however the clearance height at 3m does not meet the minimum height clearance requirements and a permit is required to waive this aspect.
12. Having heard the evidence of Mr Kiriakidis we are satisfied that waste collection and other low-level loading activities can occur within the proposed loading area using a 6.4m truck or similar. As highlighted by Mr Kiriakidis there are on street loading areas in Cecil Place and we would agree that any loading or unloading activities requiring vehicles over 3m in height could be readily accommodated within this area.
13. A total of 82 bicycle spaces are to be provided, including 65 at the basement levels and 17 at the ground floor. This exceed the statutory requirements under clause 52.34-5.

1. Two other issues were raised by the Council they related to possible flooding risk and unreasonable wind impacts as a result of the proposed development.
2. The flood level for Cecil Place is 15.5 AHD and for Anchor Place the flood level varies slightly. The floor level for the building fronting Cecil Place must have a level of at least 15.7 AHD which is achieved. In relation to Anchor Place Council has indicated that 'no openings, windows, doors, vents are allowed to the car park below 16.31 AHD'. This can be dealt with by way of condition.
3. The Council submitted the proposed development may generate unreasonable wind impacts and adversely impact on the public realm, including the potential future open space at 27 Clifton Street. No wind impact assessment was submitted. This can be addressed by way of condition and as with the nearby buildings any recommendations to address wind impact should be incorporated into the building.

1. Draft conditions were presented for discussion at the conclusion of the hearing. We have considered the submission made by the parties and have either added, modified or deleted conditions.

1. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

• Demolition; use of the land as dwellings, offices; and buildings and works in an Activity Centre Zone, Heritage Overlay and Special Building Overlay; and reduction in car parking requirements and loading bay requirements.

1. Before the commencement of the use and development, one (1) electronic copy of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the plans prepared by Fender Katsalidis Architects and are dated 13 September 2017 but modified to show:

1. deletion of two levels of levels 7, 8 or 9;
2. modifications to the podium fronting Cecil Place as shown on the plans prepared by Fender Katsalidas Architects titled 'Level 3 Floor Plan - Option dated 18 October 17 and 1 November 2017';

1. The eastern side of the development waterproofed and with a minimum finished floor level of 16.31m AHD;

1. no openings, windows, doors or vents are to be provided along the east elevation below 16.31m AHD;
2. location and capacity of the rainwater tanks and, subject to the requirements of the SMP, an annotation that confirms the rainwater tanks will be connected to toilets (including the residential toilets) for flushing;
3. any changes as required by condition 4 (WMP), 5 (SMP), 7 (wind assessment report) and 8 (WSUD);
4. a convex mirror on the western wall adjacent to the loading bay;
5. the placement of angled vertical fins on level 2 balconies of south facing apartments to reduce direct views;

all to the satisfaction of the Responsible Authority.

1. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason (unless the Stonnington Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.

1. Except with the consent of the responsible authority, Fender Katsalidas Architects (or another architectural consultancy to the satisfaction of the responsible authority) must be retained to provide architectural oversight prior to and during construction of the project as shown in the endorsed plans to the satisfaction of the responsible authority.

1. Concurrent within the endorsement of plans, a Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan must include:

1. Dimensions of waste areas. 2. The number of bins to be provided in accordance with the 'City of Stonnington Residential Waste Management Guidelines'.

1. Hours of waste and recyclables collection. 2. Method of presentation of bins for waste collection. 3. Sufficient headroom within the car park to allow the passage of waste collection vehicles. 4. Sufficient turning circles for the waste collection vehicles to drive out in a forward direction. 5. Strategies for how the generation of waste and recyclables from the development will be minimised. 6. Clarification on how residents and retail tenants will dispose of their wastes. 7. Provision of internal access for all commercial tenants to dispose of their wastes.

When approved, the plan will be endorsed and will then form part of the permit. Waste collection from the development must be in accordance with the Plan, to the satisfaction of the Responsible Authority.

1. Concurrent with the endorsement of any plans, a Sustainable Management Plan (SMP) must be submitted to and approved by the Responsible Authority. The SMP must be generally in accordance with the SMP prepared by Sustainable Development Consultants dated October 2016 (and updated as necessary to reflect the plans prepared by Fender Katsalidis Architects dated 13 September 2017, 18 October 2017 and 1 November 2017). Upon approval the SMP will be endorsed as part of the planning permit and the development must incorporate the sustainable design initiatives outlined in the SMP to the satisfaction of the Responsible Authority. Amendments to the SMP must be incorporated into plan changes required under Condition 1. The report must include, but not necessarily limited to, the following:

1. demonstrate how Best Practice measures from each of the 10 key Sustainable Design Categories of Stonnington Council's Sustainable Design Assessment in the Planning Process (SDAPP) have been addressed.
2. identify relevant statutory obligations, strategic or other documented sustainability targets or performance standards.

1. document the means by which the appropriate target or performance is to be achieved.

1. identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring.
2. demonstrate that the design elements, technologies and operational practices that comprise the SMP can be maintained over time.
3. demonstrates how the policy objectives of Clause 22.18 are achieved, including details on plans of how each impervious area is treated, and that all toilets and the irrigation system are connected to the water tank.
4. commitment to the development of a construction phase stormwater pollution reduction strategy.
5. commitment to minimum insulation values and glazing performance.
6. commitment to a minimum efficiency rating of the reverse cycle systems.
7. specification of the heating and cooling systems to be used for the non-residential spaces.
8. commitment to the provision of a Building Users Guide to future occupants of both the residential and non-residential components of the development.

All works must be undertaken in accordance with the endorsed Sustainability Management Plan to the satisfaction of the Responsible Authority. No alterations to the Sustainable Management Plan may occur without written consent of the Responsible Authority.

1. Prior to the occupation of the development approved under this permit, a report from the author of the Sustainable Management Plan, approved pursuant to this permit, or similarly qualified person or company, must be submitted to the Responsible Authority. The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the Sustainable Management Plan have been implemented in accordance with the approved plan.

1. Concurrent with the endorsement of plans, a suitably qualified person must undertake a comprehensive wind tunnel test of the entire development and a Wind Climate Assessment Report must be provided for the written endorsement of the Responsible Authority. Any modifications required to the development in order to ensure acceptable wind conditions must be submitted to and approved by the Responsible Authority as part of the plans for endorsement. The design details of any wind mitigation works must receive the endorsement of the owner/applicant's wind climate experts, referencing the use of architectural features and planting to resolve any issued identified.

1. Concurrent with the endorsement of plans, the applicant must provide a Water Sensitive Urban Design Response addressing the Application Requirements of the Stormwater Management (Water Sensitive Urban Design) Policy to the satisfaction of the Responsible Authority.

1. The project must incorporate the Water Sensitive Urban Design initiatives detailed in the endorsed plans and/or stormwater management report.

1. Prior to the occupation of the building, a Car Parking Allocation Plan must be submitted to and approved by the Responsible Authority. The Car Parking Allocation Plan must specify how the car spaces will be allocated to individual dwellings and commercial staff, to the satisfaction of the Responsible Authority. When approved, the Car Parking Allocation Plan will be endorsed and form part of the permit.

1. Concurrent with the endorsement of plans, the Applicant is to provide to Council's GIS department a digital 3D model of the development site to specification.

1. Prior to the occupation of the building/ commencement of use, the walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.

1. The provision of music and entertainment on the ground floor food and drinks premises must be limited to background music or entertainment by performers using non-amplified instruments unless with the written consent of the Responsible Authority.

1. Prior to the occupation of the building, fixed privacy screens (not adhesive film) designed to limit overlooking in accordance with the endorsed plans must be installed to the satisfaction of the Responsible Authority and maintained to the satisfaction of the Responsible Authority thereafter for the life of the building.

1. Any projection over the street must have a minimum vertical clearance above the footpath level of 2.7 metres and a minimum horizontal clearance of 750 millimetres from the street kerb unless otherwise approved in writing by the Responsible Authority.

1. 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.

1. All utility services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority by completion of the development.

1. The collection of wastes and recyclables from the premises (other than normal Stonnington City Council collection) must be in accordance with Council's General Local Laws.

1. All plant and equipment (including air-conditioning units) must be located or screened so as to minimise visibility from any of the surrounding footpaths and from overhead views and shall be baffled so as to minimise the emission of unreasonable noise to the environment in accordance with Section 48A of the Environment Protection Act 1970 to the satisfaction of the Responsible Authority. Ventilation systems must be designed and installed in accordance with the relevant Australian Standards.

1. A report for the legal point of discharge must be obtained from Council and a drainage design for the development must be prepared by a suitably qualified Engineer in accordance with that report prior to a building permit being issued. The drainage must be constructed in accordance with the Engineer's design.

1. The level of the footpaths and/or laneways at the property line must not be lowered or altered to facilitate access to the site.

1. Prior to occupation of the building or commencement of use, any existing vehicular crossing made redundant by the building and works hereby permitted must be broken out and re-instated as standard footpath and kerb and channel at the permit holders cost to the approval and satisfaction of the Responsible Authority.

1. The crossover must be constructed to Council's Standard Vehicle Crossover Guidelines unless otherwise approved by the Responsible Authority. Separate consent for crossovers is required from Council's Building and Local Law Unit.

1. This permit will expire if one of the following circumstances applies:

1. The development is not started within three (3) years of the date of this permit.
2. The development is not completed within five (5) years of the date of this permit.

1. The use is not commenced within five years of the date of this permit.

1. The use is discontinued for a period of two years or more.

In accordance with Section 69 of the Planning and Environment Act 1987, a request may be submitted to the Responsible Authority within the prescribed timeframes for an extension of the periods referred to in this condition.

[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] [2017] VSC 180

[4] Stonnington C172 (PSA) [2015] PPV 67 (18 June 2015) at page 103

[5] [2015] VCAT 1768

[6] Haines Street Holdings Pty Ltd v Melbourne CC [2015] VCAT 1428; Shiel FCP Pty Ltd v Melbourne CC [2017] VCAT 1060

[7] Garden Street Investments v Stonnington CC [2016] VCAT 2016; David Earle Architects & ors v Stonnington CC [2012] VCAT 83

[8] High Street Investment Partners Pty Ltd v Stonnington CC [2009] VCAT