Blue Earth v Moreland CC & Ors [2011] VCAT 1211

1. The Tribunal's order of 6 May 2011 is corrected to refer to the substituted plans as:

TP01 - TP13 inclusive all VCAT-1, TP14 VCAT, TP16 & TP17 both VCAT-1.

1. The decision of the Responsible Authority is set aside. In permit application no. MPS/2010/859, a permit is granted and is to be issued.
2. The permit relates to the land at No. 37-43 Breese Street, Brunswick. The permit will allow the use and development of the land for a seven storey building plus basement comprising multiple dwellings, retail (shops) and a reduction in parking in accordance with the endorsed plans.
3. The permit is subject to the conditions contained in Appendix A.

Mr J Cicero, solicitor, and Ms R Davido of Best Hooper solicitors. They called expert evidence from:

• Mr C Czarny, urban designer, Hansen Partnership;
• Mr D Crowder, town planner, Ratio Consultants;
• Mr D Hancox, traffic engineer, TTM Group; and
• Mr B de Waard of Sustainable Development Consultants Pty Ltd.

For Alastair Macinnes & Jennifer Barber, Rachel Carbonell & Mic Looby (Day 1)

Section 79 of the Planning and Environment Act 1987.

Building of seven storeys comprising a four storey podium with a distinctive decorative free form frame along the Breese Street façade with three recessed floors above. Two additional basement levels would provide 116 car spaces and bicycle parking. The building comprises 109 dwellings and four shops. Access to the basement is from the rear lane.

Business 2 Zone. Design and Development Overlay (DDO13). Environmental Audit Overlay. Special Building Overlay.

• Clause 34.02 to use and develop the land for shops and dwellings.
• Clause 43.02 [DDO13[1]] for buildings and works.
• Clause 44.05 for buildings and works.
• Clause 52.06 to reduce car parking.
• Clause 52.07 to waive a loading bay requirement.

Clauses 10, 11, 15, 16, 17, 18, 21, 22.02, 22.03, 22.05, 22.09, 22.10, 22.11, 22.15, 52.34, 52.35 and 65.

The review site comprises four lots with a total area of 1,882 square metres in area. It is located on the west side of Breese Street and also abuts a rear lane accessed off Florence and West Streets. The land is to the west of Sydney Road and east of the Upfield railway corridor. It is within an area that contains older single storey dwellings, such as Nos. 33 - 35 Breese Street to the south and No. 2 West Street, to which the site abuts. The area also comprises commercial and manufacturing uses and recent multi-level residential developments including the large development on the Whelan site. Other developments in the area have been approved[2].

Prior to the hearing, as parties at the hearing were advised, and again subsequent to the hearing.

1. Blue Earth Group applied to the Moreland City Council to develop an eight storey mixed use building on the review site. The Council failed to determine the permit application within the prescribed time leading the permit applicant to lodge this proceeding with the Tribunal.[4]
2. Based on an amended seven storey proposal shown in the plans substituted by the Tribunal, the Council has determined to support the proposal subject to conditions. The primary change is removal of the top floor. Respondent Objectors have also raised concerns with respect to the building's scale and height as well as a number of other matters including the traffic and parking implications of the number of large development projects that are occurring in the area. Residents are concerned that the proposal is higher than the 5 storey preferred height in DDO13 and that a seven storey building would set a precedent to exceed the 5 storey height referred to in the Brunswick Structure Plan. The Applicant challenges all of the grounds opposing the proposal through the evidence of its expert witnesses.
3. We must decide whether to grant a permit for the proposal and, if so, what conditions should apply. The key issues for our determination are:
   • What are the relevant physical and planning contexts?
   • Does the land use mix achieve the purpose of the Business 2 Zone?
   • Does the design response achieve an acceptable outcome given the physical and planning contexts?
   • Is there an unacceptable impact on abutting properties?
   • Are impacts on traffic and car parking acceptable?
   • Would any other matters warrant rejection of the permit application?

What are the relevant physical and planning contexts?

1. The review site is located between the main Sydney Road commercial strip centre and Upfield railway corridor. Further to the west of the Upfield line is an established low rise residential area including heritage precincts. That contrasts with the area of the review site that is undergoing significant change and where further change is expected. The older building fabric and land uses include dwellings, industrial and commercial buildings with some open at grade parking including public car parks. Newer buildings include mixed use and residential developments of three storeys and more with the nine storeys Whelan project being visually prominent in some street views.
2. The review site is in the Brunswick Major Activity Centre[5], the Anstey Station Urban Village[6], the Upfield Corridor[7], and the Sydney Road transport corridor[8]. It is a strategic redevelopment site[9] where higher density housing is encouraged[10]. Local policies call up the Anstey Village Structure Plan 2000[11] and Brunswick Structure Plan [BSP][12]. Policy and the BSP pick up the themes of the Anstey Village Structure Plan that encourage residential development and mixed use buildings. Policy seeks to ensure use and development within the Major Activity Centre is generally in accordance with the BSP, the current overarching plan.
3. Policy is carried through to DDO13 where an objective is to ensure that development is consistent with the BSP and Anstey Village Structure Plan. Unlike interim DDOs affecting the Major Activity Centre, DDO13 was introduced in 2009 and has no sunset clause. It also operates differently insofar as it specifies that any new development should be limited to a height of 5 storeys (18 metres)[13] whereas interim DDOs (such as DDO18 that applies to the east side of Breese Street) adopts 5 storeys (18 metres) as the permit trigger. Other design objectives for DDO13 focus on, inter alia, enhancements to the public realm, high quality and innovative design, environmentally sustainable design and high-density forms of residential accommodation above ground floor commercial spaces. Consistent with these aims, the BSP[14] includes the site within an activity node; identifies Breese Street as an activity street; and adopts a 5 storey maximum building height in the form of a 4 storey podium and a 3 metre front setback above.
4. These BSP themes are relevant to our final decision. We say this knowing that the Plan has not been tested via a Scheme amendment. Importantly many of the BSP's general aims are addressed in broader terms through Scheme policies such as Clauses 15.01, 22.02, Clause 22.11, the Activity Centre Design Guidelines, and the Guidelines for Higher Density Housing.

Does the land use mix achieve the purpose of the Business 2 Zone?

1. The proposed land uses require a planning permit although the land use mix is not in dispute between the parties. The land is zoned Business 2, with a focus on commercial use, and other policies such as Clause 22.03 also apply. However, it is most relevant that DDO13 expressly supports residential development above ground floor commercial spaces. The proposal wholly accords with that objective. Thus, we find the land use mix to be acceptable and to accord with policies and the aim of DDO13.

Does the design response achieve an acceptable outcome given the physical and planning contexts?

1. The parties generally agreed that the scale and massing of the podium form is acceptable even though there are different opinions about the distinctive decorative frame treatment.[15] The focus of the dispute about the building form is the height of the proposed development above 5 storeys:
   • Residents submitted a five storey limit is appropriate as it would be consistent with the recommendations of the BSP and height referenced in DDO13. Residents are concerned that the higher form pre-empts any review of the BSP and will set a precedent for other development above the heights referred to in the BSP and DDO.
   • The Council sought a six storey building by requiring the top floor to be removed. It argued this is necessary to achieve a distinction between development in DDO13 and the adjacent DDO18 where higher forms are referred to[16] and that a seven storey building will affect the legibility of the precinct. Mr Crawford said that the Council determined that six storeys is acceptable given the amalgamation of sites, quality of design and otherwise high level of compliance with policy notably environmentally sustainable design [ESD].
   • The Applicant submitted that the seven storey form is acceptable based on expert evidence and the assessment of the Council's planning officer (including urban design advice). In summary, the evidence was that the seven storey form, with its very strong podium form and recessed cap (particularly the top floor) on a large mid block site is an excellent response to the emerging and anticipated site context. The design was said to be innovative, with excellent ESD credentials, adding positively to the public realm, and achieving superior internal amenity with its use of multiple large light courts.
2. We consider the front façade, and overall appearance of the building in the round, are carefully considered and resolved. We also find the podium design to be well executed even though it is marginally higher than the 14.5 metres preferred in DDO13.
3. We also consider the proposal displays a high level of compliance with many aspects of the design and built form policies and Overlay decision guidelines including with respect to the following:
   • Inclusion of a mix of uses with activation of the Breese Street frontage at ground level with shops [we refer to access to the shops below].
   • Vehicle access from the rear to avoid a gap or break in the Breese Street frontage.
   • An excellent ESD outcome as demonstrated through the evidence of Mr de Waard including multiple sizeable light courts, ventilated corridors and other features that will provide a level of amenity that is sometimes less apparent in multi-storey residential buildings.
4. We have reviewed the extent to which the two top floors would be seen, whether they would have an unreasonable visual impact on the public and private realms, and whether they would read as a discordant element or in some manner undermine the aims set by policy, the BSP and DDO13.
5. The podium scale and height and fourth level (fifth floor setbacks) closely correspond with the numerical provisions of DDO13. The sixth floor adopts the same floor plate as the fifth floor. The top, seventh floor, is more extensively glazed than the fifth and sixth levels and adopts deeper setbacks from its four boundaries, ranging from 9 to 9.8 metres. Consequently, the top floor is very well recessed below the lower two levels although it is self-evident that the three top floors would be seen, to varying degrees, dependent on the viewing location and distance. Being a mid block site, over time, more new buildings will be positioned around the proposed development therefore masking or limiting its visibility to varying extents. We do not consider the top levels dominate or are visually intrusive when read in the context of the recent development projects and approved proposals nor in terms of expectations of further intensive development along this important corridor positioned between Sydney Road and Upfield. The proposed development will not be intrusive to the Sydney Road spine or impact upon the traditional shopping strip character.
6. The scale of the development will be more obvious in middle and more distant views. We do not find this to be unacceptable having regard to the ambitions set for the area and we do not consider this visibility to be a fatal blow to either of the sixth or seventh floors. The height difference above 5 storeys or 18 metres would be noticeable but is not a radical departure in the site's emerging context. The upper levels are setback, the top floor significantly so, and adopt different materials assisting the manner in which the proposal can appropriately integrate with the area.
7. Consequently, we do not find the outcome to be pre-emptive of any further review of the BSP or statutory provisions associated with it. Nor do we accept submissions that the seven storey format is unacceptable because it would blur built form ideals for different areas having regard to the aims set by the two DDOs. The ambitions of the DDOs are quite similar. Moreover, as other Tribunal decisions[17] have noted, the BSP does not explain the strategic basis for the specific heights selected to enable us to form a view that the additional two, recessed levels, would offend a particular urban form outcome that is sought for this part of the Major Activity Centre. The Whelan building to the south-east of the review site will remain as the largest and highest on a site identified as a landmark.
8. The BSP itself notes that the height maxima are a guide[18] based on long term development opportunities. The BSP places significant emphasis on excellent design and ESD outcomes. Thus, it must be recognised that the proposal's ESD outcomes and internal amenity are important factors in favour of the development, as indicated by the Council's position.
9. We also do not consider a decision to allow the proposal sets a precedent insofar as each site will have its own opportunities and constraints. Smaller sites may not be able to accommodate a building of this scale for various reasons. A different design of seven storeys without the ESD benefits may also not be acceptable. The development on the review site will be part of a context that any future proposal in the area will need to respond.
10. For these reasons, we find the design response would achieve an acceptable outcome given the physical and planning contexts.

Is there an unacceptable impact on abutting properties?

1. The proposal would introduce a substantial building adjacent to single storey residences at No. 35 Breese Street and No. 2 West Street. Other residences in the area would also be exposed to the proposed building mass.
2. Based on the Overlay provisions and BSP, large buildings next to older dwellings are not unexpected as the desired character emerges. The dwellings are in a Business 2 Zone where substantial change is targeted. These circumstances do not mean existing dwellings should be disregarded. However, an outcome with a large building juxtaposed to rear gardens is acceptable particularly when noting that a five storey building under DDO13 would have a significant impact. Obviously, the proposed development is higher but we do not consider the extra visual bulk to be a factor warranting rejection of a proposal that otherwise accords with the specific outcomes being pursued through the Scheme and adopted policy for this location. Similarly, there will be increased shadowing of adjacent properties but not significantly so above a five level building module. We also do not consider the permit application can fail for this reason.
3. Overlooking can be addressed by conditions proposed by the Council. Mr Crowder's evidence questioned whether such preventative measures are necessary. We consider downward views to the adjacent residential properties should be limited, as accepted by Mr Cicero when discussing permit conditions. This can be achieved without detracting from the internal amenity of proposed dwellings.
4. Mr Crowder referred to the equitable sharing of development potential. We have considered the relationship of the proposal with abutting sites and have noted the application lodged for No. 33-35 Breese Street. We consider this matter has been addressed satisfactorily by appropriate setbacks to the north and south.

1. Respondent Objectors raised a number of concerns about the proposal with respect to traffic and parking matters. Their grounds included increased congestion, increasing problems at intersections, the cumulative impact of multiple developments on traffic and parking, and safety, including that of pedestrians. There was some criticism of the traffic and parking evidence including the scope and extent of surveys undertaken.
2. Car parking is proposed at the rate of one space per dwelling and one space per shop. Thus, all customer and residential visitor parking would occur off-site. We find this to be acceptable given the location and consider the reduction from Clause 52.06 rates for retail and dwellings is justified given the excellent access to public transport and the policy context. As discussed at the hearing, we consider several car spaces can be removed to provide for additional bicycle and motorbike parking although we will not direct one bike space per unit as the Council had requested. We consider more bicycle parking above the rate prescribed in Clause 52.34 is appropriate to support the reduction in parking. Having regard to the decision guidelines at Clause 52.06-1, we consider the on-site provision of alternative transport means such as bicycles and motorbikes/scooters is a relevant consideration in allowing a reduction in car parking.
3. Increased traffic and on-street parking will occur in areas such as this consistent with the growth that is being promoted through policy. We accept the evidence of Mr Hancox, that was not contested by the Council, that the traffic and parking impacts are acceptable including with respect to approved developments whose impacts are not addressed in surveys of existing conditions.

1. A number of other matters were raised in submissions and statements of grounds. We refer to these next.
2. Lack of open space. Residents expressed concern about a lack of open space within the proposal and insufficient public open space in the area to compensate.
3. We note that the BSP has some recommendations with respect to new public open space however it may be some time before those recommendations come to fruition. We consider the proposal provides sufficiently for the needs of occupants with respect to private open space consistent with the Guidelines for Higher Density Housing. It is a matter for the Council as to how it expends open space contributions obtained through subdivision approvals, a matter referred to in submissions.
4. Access to shops. The floor levels of the shops are raised because of the floor level requirements requested by Melbourne Water under the Special Building Overlay.
5. We are satisfied access for persons of limited mobility can be provided through the proposed front ramp and then rear access doors. We agree with Mr Czarny that this is preferable in terms of the public realm outcome while also ensuring access reasonable is achieved.
6. Bike parking. The plans show a number of bicycle parking hoops along the Breese Street frontage perpendicular to the building.
7. The Council's draft conditions seek these to be parallel to the footpath. We discussed this matter with Mr Czarny who suggested a rebate could be provided into the street wall (where that wall is raised because of the Special Building Overlay) to provide hoops. This seems a good outcome that frees the footpath of clutter but provides visitor bike parking. We will require this by condition but give flexibility should an alternative be considered by the Council and Applicant to be more appropriate.[19]
8. Parking management. Based on the evidence of Mr Hancox there is a prospect that not all dwellings will require a car space. We consider it desirable for some flexibility to be available in the allocation of parking spaces to provide for this circumstance. It would be desirable to avoid empty spaces when, for example, a resident might wish to have individual motor bike parking in a bay. We will therefore require a parking management plan to provide a means by which the efficient allocation of on-site car spaces can occur.
9. Relationship between apartments. At the hearing, the Tribunal noted several units whose bedroom window was closely positioned to air condition units on the balcony of a different unit. This is a matter that can be addressed through conditions to ensure visual privacy and limit the potential for noise from air conditioning units affecting another dwelling.

1. We find that the proposal would achieve an acceptable outcome in terms of the applicable provisions of the Moreland Planning Scheme. Consequently, we will allow the Application and we will set aside the decision of the Moreland City Council.

Use and development of the land for a seven storey building plus basement comprising multiple dwellings, retail (shops) and a reduction in parking in accordance with the endorsed plans.

1. Before the use or development commences, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of 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 received by the Responsible Authority on 14 April 2011 but modified to show:
   • (a) The following apartment balconies and windows to include adequate screening measures to minimise direct downward views into the secluded open space of 35 Breese Street and 2 West Street, but allow for horizontal/outward views:
     • (i) 1.09; 1.10; 1.11; 1.12; 1.13; 2.09; 2.10; 2.11, 2.12, 2.13; 3.09; 3.10; 3.11; 3.12; 3.13; 4.07; 4.08; 4.09; 4:10; 5.07; 5.08 and 5.09
   • (b) Screening to a height of 1.7 metres above finished floor level for the bedroom window or the elevation of the adjacent balcony associated with another unit to provide for privacy between dwellings:
     • (i) 1.02 (abuts balcony to 1.01); 1.05 (abuts balcony to 1.06), 1.10 (abuts balcony to 1.11) and 1.15 (abuts balcony to 1.16);
     • (ii) 2.02 (bedroom abuts balcony to unit 2.01); 2.05 (abuts balcony to 2.06), 2.10 (abuts balcony to 2.11) and 2.15 (abuts balcony to 2.16);
     • (iii) 3.02 (abuts balcony to 3.01); 3.05 (abuts balcony to 3.06), 3.10 (abuts balcony to 3.11) and 3.15 (abuts balcony to 3.16).
   • (c) All habitable room windows facing the internal light court to be clear, openable and floor to ceiling height.
   • (d) The visitor bike racks on Breese Street to be repositioned as rebates into the façade wall unless an alternative is to the satisfaction of the Responsible Authority.
   • (e) Deletion of three car spaces within the basement that must be replaced with additional bicycle parking and/or motor cycle parking facilities to the satisfaction of the Responsible Authority.
   • (f) The bike store room dimensioned 2.7 metres wide to allow sufficient room for 'Ned Kelly' bike racks in a manner that accords with the specifications in Bicycle Victoria's Bicycle Parking Handbook, to the satisfaction of the Responsible Authority.
   • (g) The columns in the car park located in accordance with the Australian Standard for Off-Street car parking AS2890.1, so that sufficient room is provided for car drivers and passengers to pass between the column and the car in an acceptable manner.
   • (h) The internal light court glazing to be architecturally treated to a height of 1.7 metres from the floor level, on all floors to limit overlooking into the habitable room windows. The glass must not be more than 25 per cent transparent.
   • (i) The provision of equitable disability access for each shop via rear access corridors and doors.
   • (j) A landscape plan in accordance with condition 3 of this permit.
   • (k) Any modifications required by the amended ESD Management Plan in accordance with condition 4 of this permit.
   • (l) The recommendations of the Accessibility Report in accordance with condition 9 of this permit.
   • (m) Any alterations required by the Waste Management Plan in accordance with condition 10 of this permit.
   • (n) Any modifications required by the Parking Management Plan in accordance with condition 12 of this permit.
   • (o) The location of any air-conditioning units and other plant equipment, including any screening. Air conditioning units must not be visible from the public realm and not located adjacent to a habitable room window in another dwelling.
   • (p) A schedule of all proposed exterior decorations, materials, finishes and colours, including the details of the of the first floor void treatment and ground floor open space of dwellings G.01- G.03 and G8-G11, including colour samples (3 copies in a form that can be endorsed and filed).
   • (q) Details of the decorative screen facade to Breese Street, including colours, finishes, materials that must be durable, and an explanation of the construction methods or means by which the screen will be fixed to the building.
   • (r) The slope of the accessway to the basement car park must be in accordance with the Australian Standard for Off-Street Parking (AS2890.1).
   • (s) A public area's development plan detailing the works in Breese Street and associated street furniture. This plan shall then become part of the endorsed plans under the permit. The plan(s) must be implemented prior to the occupation of the development to the satisfaction of the Responsible Authority.
2. The use and development as shown on the endorsed plan(s) must not be altered or modified unless with the further written approval of the Responsible Authority.
3. Prior to the endorsement of plans, a landscape plan must be submitted to and approved by the Responsible Authority. The landscape plan must provide the following:
   • (a) a schedule of all proposed trees, shrubs, ground covers and climbers as applicable on the ground floor (including numbers, size at planting, size at maturity and botanical names), as well as sealed and paved surfaces
   • (b) details of the location and type of all paved and sealed areas. Extensive hard surfaces are not supported. The adoption of porous/permeable paving is encouraged.
   • (c) integration of water sensitive urban design (WSUD) features (eg. raingarden, bio-swales etc) contained within the endorsed ESD Town Planning Report.

Following completion of the development the areas designated as garden areas on the endorsed landscape plan must be maintained and used as garden areas.

1. Prior to the endorsement of plans, the Environmentally Sustainable Development (ESD) Management Plan prepared by Sustainable Development Consultants dated 16 March 2011 (Rev 7 April 2011) must be amended to the satisfaction of the Responsible Authority, to include further initiatives including, but not limited to, the following:
   • (a) Common area corridors windows to be openable and to have a clear opening of not less than 1m2 in size.
   • (b) All internal doors in apartments that form a breeze path are provided with door catches to prevent the doors from being blown shut.
   • (c) Operable louvers or openable window to be provided above foyer entrance door with a clear opening of not less than 1m2 in size.
   • (d) Light courts for ground floor south facing apartments (G.03, G.02, G.01) to be reconfigured to have the same configuration as apartments on the first floor.
   • (e) Bicycle and motor cycle parking facilities consistent with Condition 1.
   • (f) At least a 6 star average energy rating.
   • (g) Gas boosted solar hot water system (minimum 50% annual solar contribution) for all apartments which includes a 5 -star rated instantaneous gas unit.
   • (h) Ceiling fans for living areas of each apartment.

When submitted and approved to the satisfaction of the Responsible Authority, the amended Environmentally Sustainable Development (ESD) Management Plan and associated notated plans will form part of this permit.

The recommendations of the plan must be incorporated into the design and layout of the development and must be implemented to the satisfaction of the Responsible Authority prior to the occupation of the development.

1. All works must be undertaken in accordance with the endorsed Environmentally Sustainable Development (ESD) Management Plan to the satisfaction of the Responsible Authority. No alterations to the ESD Management Plan may occur without written consent of the Responsible Authority.
2. Prior to the occupation of any dwellings approved under this permit, a report from the author of the Environmentally Sustainable Development (ESD) 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 Environmentally Sustainable Development (ESD) Management Plan have been implemented in accordance with the approved Plan.
3. Prior to the commencement of construction or carrying out works pursuant to this permit, or any works associated with a sensitive use, or where no works are proposed, prior to the commencement of the permitted use, either:
   • (a) A Certificate of Environmental Audit for the land must be issued in accordance with Section 53Y of the Environment Protection Act 1970 and provided to the Responsible Authority; or,
   • (b) An Environmental Auditor appointed under Section 53S of the Environment Protection Act 1970 must make a Statement in accordance with Section 53Z of that Act that the environmental conditions of the land are suitable for the use and development that are the subject of this permit and that statement must be provided to the Responsible Authority.

Where a Statement of Environmental Audit is issued for the land, the buildings and works and the use(s) of the land that are the subject of this permit must comply with all directions and conditions contained within the Statement.

Where a Statement of Environmental Audit is issued for the land, prior to the commencement of the use, and prior to the issue of a Statement of Compliance under the Subdivision Act 1988, and prior to the issue of an Occupancy Permit under the Building Act 1993, a letter prepared by an Environmental Auditor appointed under Section 53S of the Environment Protection Act 1970 must be submitted to the Responsible Authority to verify that the directions and conditions contained within the Statement have been satisfied.

Where a Statement of Environmental Audit is issued for the land, and any condition of that Statement requires any maintenance or monitoring of an ongoing nature, the Owner(s) must enter into an Agreement with Council pursuant to Section 173 of the Planning and Environment Act 1987. Where a Section 173 Agreement is required, the Agreement must be executed prior to the commencement of the permitted use, and prior to the certification of the plan of subdivision under the Subdivision Act 1988. All expenses involved in the drafting, negotiating, lodging, registering and execution of the Agreement, including those incurred by the Responsible Authority, must be met by the Owner(s).

1. Prior to any remediation works being undertaken in association with the Environmental Audit, a 'remediation works' plan must be submitted to and approved by the Responsible Authority. The plan must detail all excavation works as well as any proposed structures such as retaining walls required to facilitate the remediation works. Only those works detailed in the approved remediation works plan are permitted to be carried out prior to the issue of a Certificate or Statement of Environmental Audit.
2. Prior to the endorsement of plans, the Accessibility Plan prepared by Equal Access Pty Ltd dated 19 April 2011 must be amended by a suitably qualified access consultant to outline the compliance of the proposed development with the relevant Australian Disability Standards. The report must conclude that 10% of the dwellings are adaptable dwellings pursuant to AS 4299 (Adaptable Housing) and all other dwellings are visitable as per AS 4299 (Adaptable Housing). This including floor plan(s) of the adaptable dwelling layout(s) to the satisfaction of the Responsible Authority.

When submitted and approved to the satisfaction of the Responsible Authority, the Accessibility Plan and associated notated plans will be endorsed to form part of this permit.

The recommendations of the plan must be implemented to the satisfaction of the Responsible Authority prior to the occupation of the development.

All proposed adaptable apartments must be constructed to comply with the relevant standards.

No alterations to the Disability Access Plan may occur without the written consent of the Responsible Authority.

1. Prior to the commencement of the development, a Waste Management Plan must be submitted to and approved to the satisfaction of the Responsible Authority. The Plan must include, but is not limited to the following:
   • (a) Calculations showing that all occupiers will be sufficiently catered for with the proposed number of garbage and recycling bins.
   • (b) The size and location for the storage of general waste and recyclables on the ground/basement floor levels and details of screening from view.
   • (c) A plan showing that the storage area is sufficient to cater for the number of bins, which must include the option of the manager or any Body Corporate opting for Council collection.
   • (d) The size and location for the storage of recyclables on each floor.
   • (e) Details of ventilation if garbage bins are in enclosed areas.
   • (f) The provision of dual bins provided in cupboards in each unit to encourage the separation of recyclables from garbage.
   • (g) Design details of the built-in waste/recycling system for the building indicating the provision made for the separate disposal of garbage and recycling streams.
   • (h) A description of the ease of disposal for residents that does not disadvantage recycling.
   • (i) The consideration of the east of taking fully laden bins to the collection points.
   • (j) Private contractor options, if applicable, detailing the methods of collection with regard to the site and road network constraints and the potential requirement to manoeuvre garbage trucks including a collection plan by the proposed collection agencies that meets Council's Waste Management Plan.
   • (k) Confirmation of the hours and frequency of pick-up for general and recyclable waste, with regard to potential noise impacts to the surrounding neighbourhood.

When submitted and approved to the satisfaction of the Responsible Authority, the amended Waste Management Plan and associated notated plans will form part of this permit.

1. The Waste Management Plan approved under this permit must be implemented and complied with at all times to the satisfaction of the Responsible Authority unless with the further written approval of the Responsible Authority.
2. Prior to the endorsement of plans, a Parking Management Plan shall be submitted to the satisfaction of the Responsible Authority. The plan must address, but is not limited to, the allocation of car, motorbike and bicycle spaces within the development. When approved the Plan will form part of this permit and must be complied with to the satisfaction of the Responsible Authority.
3. Prior to the occupation of the development, any vehicle crossing not to be used in the approved use or development must be removed and the kerb and channel, footpath, and nature strip reinstated to the satisfaction of the Responsible Authority.
4. Prior to the occupation of the development, the footpath must be constructed to Council's standards using construction plans approved by the Responsible Authority and supervised on behalf of the Responsible Authority.
5. The car parking spaces provided on the land must be solely associated with the development allowed by this permit and must not be subdivided or sold separate from the development for any reason without the written consent of the Responsible Authority.
6. No habitable portion of the building, including any balcony, is to project more than 300 millimetres into the road reserve to the satisfaction of the Responsible Authority.
7. Prior to the occupation of the development, all visual screening measures shown on the endorsed plans must be installed to the satisfaction of the Responsible Authority. All visual screening and measures to prevent overlooking must be maintained to the satisfaction of the Responsible Authority. Any screening measure that is removed or unsatisfactorily maintained must be replaced to the satisfaction of the Responsible Authority.
8. All stormwater from the land, where it is not collected in rainwater tanks for re-use, must be collected by an underground pipe drain approved by and to the satisfaction of the Responsible Authority.
9. Prior to the commencement of the development, a legal point of discharge is to be obtained, and where required, a stormwater drainage plan showing how the site will be drained from the property boundary to the stated point of discharge, must be submitted to and approved by the Responsible Authority. Stormwater from the land must not be directed to the right-of-way.
10. Where applicable, any stormwater treatment measures (eg. raingarden, bio-swale etc) contained within the endorsed ESD Town Planning Report or landscape plans must be included on the stormwater drainage plan.
11. All telecommunications and power connections (where by means of a cable) and associated infrastructure to the land must be underground to the satisfaction of the Responsible Authority.
12. Unless with the prior written consent of the Responsible Authority, any plumbing pipe, ducting and plant equipment must be concealed from external views. This does not include external guttering or associated rainwater down pipes.
13. A mailbox, with separate aperture for newspapers and other non-mail articles must be provided for each of the premises at the street frontage. The mailbox dimensions, placement and numbering must comply with the Australia Post - General Post Guide 2004 (Point G4.3) as published on its website to the satisfaction of the Responsible Authority.
14. All titles to the land must be consolidated into one title and certified plans lodged with the Land Registry Office within twelve months of the date of this permit to the satisfaction of the Responsible Authority.
15. This permit will expire if one of the following circumstances applies:
    • (a) the development is not commenced within two (2) years from the date of issue of this permit;
    • (b) the development is not completed within four (4) years from the date of issue of this permit;
    • (c) the use is not commenced within four (4) years from the date of issue of this permit.

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

[1] DDO13 is "Land Bounded by Florence Street to the North, Hope Street to the South, Breese Street to the east and Upfield Path to the west, Brunswick".

[2] For example, No. 7-9 Florence Street (5 storeys with 24 dwellings) within DDO13. Within DDO18, there are approvals for No. 30-32 Breese Street (5 storeys), No. 10 Breese Street (6 storeys) and 10-14 Hope Street (6 storeys). A permit application has been lodged for a seven storey development at No. 33-35 Breese Street (DDO13) but it has not yet been advertised.

[3] In reaching our decision, we have considered all submissions, statements of grounds and statements of evidence presented by the parties but do not recite all of that material here.

[4] Failure to determine an application is a deemed refusal under the Victorian Civil and Administrative Tribunal Act 1998.

[10] Clauses 16.01, 21.05, 22.02, 22.05.

[11] Clause 22.05 where the Structure Plan 1999 is a reference document and DDO13

[12] Draft 2008 and adopted document April 2010. Clause 2215 and DDO13 refer to the Draft. The parties addressed both the Draft and adopted documents and the differences are not critical to a decision in this proceeding.

[13] This is a discretionary provision.

[14] The parties addressed both the Draft and adopted documents. The differences are not critical to a decision in this proceeding.

[15] The Council did not suggest this element was unacceptable but Mr Looby alluded to different opinions in the community.

[16] For example, 6 storeys on the southern side of Hope Street and 7 storeys for the north-east corner of Florence and Breese Streets in the broader DDO18.

[17] For example, Damfine Pty Ltd & Anor v Moreland CC [2011] VCAT 96.

[18] Page 27 of Volume 2 Part 1 of the 2010 BSP.

[19] We have noted since the hearing, on further review of the plans, that there may have been some misinterpretation of the drawings with respect to the position of ground level and its degree of inset from the footpath. This is a further reason why we have provided flexibility with respect to this matter.