1. The responsible authority is directed to amend the permit and issue an amended permit to the owner of the subject land pursuant to section 91 of the Planning and Environment Act 1987.

Ms Nicola Collingwood, Barrister, instructed by Best Hooper Solicitors.

This is an application to amend Permit 5/2010/232/1, a permit for a large mixed use development by amending endorsed plans and permit conditions. The most controversial aspect of the proposed amendment is the proposal to increase the height of the highest portion of the existing building from 8 stories to 10 stories

Application under section 87A of the Planning and Environment Act 1987 for amendment of a permit

The subject land is located on the south side of Bay Road, midway between Bluff Road to the west and Reserve Road to the east in Sandringham. The land is within and on the western periphery of an area of strategic importance known as the Bayside Business Employment Area .The land is a combination of two lots with a frontage to Bay Road of 159 metres and an area of 2.35 hectares.

The Tribunal inspected the land and locality on 28 August 2010.

1. This is an application under section 87A of the Planning and Environment Act 1987 to amend Permit 5/2010/232/1 by amending endorsed plans and permit conditions to generally give effect to the following changes:

1. An increase in height from the 8 storeys approved by the Tribunal for the central building to 10 storeys, to accommodate 12 double storey / mezzanine penthouse apartments (6 x 1 bedroom and 6 x 2 bedroom); 2. The division of the previously proposed general commercial space in the west building into 6 shop / office spaces and 1 medical / office facility. The medical centre is proposed to be reduced from 20 to 10 practitioners;

1. The conversion of other approved commercial space in the west building to 13 additional apartments; and

1. The sale of liquor from both the café and shop (packaged liquor) in the central building, between the hours of 9am to 11pm Monday to Saturday, 10am to 11pm Sunday, and 12pm to 11pm on Good Friday, ANZAC Day and Christmas Day.
2. On 10 June 2014, the Council considered the application and resolved to advise the Tribunal that it opposes the amendment of the permit, on the following grounds:

1. The proposed inclusion of two additional storeys to contain 12 apartments will detrimentally impact on the neighbourhood character of the area through visual bulk, excessive height and prominence. 2. The proposed inclusion of two additional storeys to contain 12 apartments will directly and detrimentally impact upon Sandringham College and from public areas to the south and through excessive height and visual bulk will unreasonably impact the visual amenity of these areas.

1. The proposed siting of the two additional storeys to contain 12 apartments and the design of the cantilevered roof profile made the proposal more pronounced on the landscape and will result in an element that significantly contributes to overall silhouette of the approved development.

1. The two additional storeys is also directly contrary to policy provision at Clause 22.04-3 of the Business Employment Area policy to apply height limits as indicated in diagram S1 (14m maximum) to maintain appropriate building scale in the area. 2. The proposed two additional storeys do not improve the urban design outcome achieved by the development, and are contrary to the objectives of Clauses 15.01-1, 21.06 and 22.04 of the Bayside Planning Scheme as they relate to the achievement of high quality urban and building design.
2. For the reasons are set out below we have decided to allow all aspects of the application to amend the permit other than the proposal to increase the height of the highest portion of the existing building from 8 stories to 10 stories. In relation to the two story extension we formed the view that the extension will result in an inappropriate departure from the preferred height limit specified in clause 22.04 and the strategic purpose to respect the generally low rise nature of development throughout Bayside, whilst providing some incentive for redevelopment of former industrial sites.
3. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality.

1. The subject land is located on the south side of Bay Road, midway between Bluff Road to the west and Reserve Road to the east. The land is within and on the western periphery of an area of strategic importance known as the Bayside Business Employment Area.

1. The land is a combination of two lots with a frontage to Bay Road of 159 metres and an area of 2.35 hectares. The land is currently being redeveloped for a large mixed-use development in accordance with a permit granted by this Tribunal[1]. Stage I of the development, the large central building, is substantially complete.
2. The land directly surrounding the review site is as follows:
   • To the east is a public open space known as the Bay Road Heathland Sanctuary Reserve a large parcel of land owned and managed by Council for conservation of remnant native vegetation.
   • To the south of the site is the VCE campus of Sandringham Secondary College and its playing fields. The sports ground belongs to the school but is also informally used as public open space.
   • Directly adjoining the site to the west is a laneway which is an important pedestrian connection between the Sandringham College and Bay Road. Across the laneway is another large apartment building also substantially complete.
   • To the north is Bay Road, an arterial road within the Road Zone Category 1. The 822 bus route runs along Bay Road, connecting the land to Southland Principal Activity to the east and Sandringham Major Activity Centre to the west.
   • Across Bay Road, west of Sydenham Street are 1 to 2 storey buildings used for industrial purposes east of Sydenham Street there are 1 and 2 storey dwellings part of a broader residential hinterland.
3. North and south of the immediate environs described above are the conventional suburban residential areas of Sandringham and Highett. These areas where primarily developed during the post war years and the modest dwellings of that period are only in the last few years being replaced with larger 2 storey dwellings and townhouses..
4. The Sandringham Major Activity Centre and Sandringham Railway Station are located 2.1 kilometres to the west of the review site. The Southland Principal Activity is located 2.4 kilometres to the east. The state government has announced that a new railway station is to be constructed at Southland.

Figure 2 - Plan of Business Employment Area[2].

1. The Business Employment Area is a large industrial area also primarily developed in the decades following the Second World War. Within the last decade or so there has been some 1 and 2 storey redevelopment, while in more recent years there has been a small number of 3 and 4 storey commercial developments, which respond to the policy now relating to the Business Employment Area. The Business Employment Area was land previously within a variety of industrial zones. The area is now the land at the centre of figure 2 within the Commercial 1 Zone, Commercial 2 Zone and the Mixed Use Zone.

1. The application as originally submitted to Council proposed a large mixed use development for 499 apartments and a variety of commercial uses primarily at ground floor level on the Bay Road frontage. The development comprised three large buildings. At its highest point the central building rose to a height of 11 stories towards the centre rear of the land.
2. An application for review in respect of this permit application was made to the Tribunal. Prior to the hearing the applicant elected to amend the application plans, primarily to reduce the height of the central building at its highest point to 8 stories. The diagram in Figure 3 is a massing diagram of the amended 2010 proposal tabled at the hearing. Ultimately this Tribunal decided to direct the grant of a permit in respect of the amended proposal.

Figure 3 - Massing Diagram of Amended 2010 Proposal

1. This is a proposal to amend the permit granted by this Tribunal in 2010. The broad scope of the amendments now before the Tribunal is described in the introduction to these reasons at paragraph 1. From the Council's perspective the aspect of the amendment which is of concern is the proposal to add another two stories to the existing 8 story building element[3]. The current height of the central building at 8 levels is approximately 28 metres from ground to parapet level. The proposed addition of 2 storeys, would increase the height to 33.30 metres and the low point of the butterfly roof and to 34.40 metres to the high point.

Figure 4 - Massing Diagram - Central Building with Additional Floors

1. The design for the additional two stories includes 12, two level, apartments accessed internally from a double loaded corridor, with the apartments orienting primarily east and west. The bottom level of these proposed apartments comprise the living/dining areas, with the larger apartments having one bedroom at this level. External decks at this lower level extend to the perimeter of the parapets to level 7 below. In plan view, these angled decks vary in depth from 2-4 metres. The upper level of these apartments includes bedrooms, which are labelled as "mezzanines" with associated bathrooms.
2. The "footprint" of this proposed 2-storey extension including deck space, conforms to the footprint of level 7 below. There is a "butterfly" roof on top of this extension, which is angled in both plan and elevation, presumably as a design feature, as it has no practical purpose. At the highest point to this angled roof, the overall height to the existing building would be increased by approximately 6.40 metres. The 2-storey extension would surround or encapsulate the existing lift overrun, so there would be no visual projection higher than this proposed "butterfly" roof.
3. The external materials proposed for this 2 storey extension, include some rendered finishes, charcoal coloured metal cladding, clear glass glazing to balustrades, and predominantly a tinted glass façade with charcoal coloured powder coated aluminium frames. These materials differentiated this extension from the existing.

1. Council's submissions focused exclusively on the proposal to add an additional two stories to the existing eight story element of the already constructed central building. Council attacked this aspect of the proposal by reference to the policy framework, in particular Clause 22.04 Business Employment Area Policy and on the basis of urban design considerations, relying on the evidence of Mr Czarny.
2. The preferred maximum building height specified in Clause 22.04 is 14 metres. The height of the central building at 8 levels is approximately 28 metres from ground to parapet level. The proposed addition of 2 storeys, would increase the height by 6.50 metres to an overall height of 34.50 metres above ground.
3. We agree that the proposed increase in height of the already constructed central building is the main issue in this application for review. Ultimately it is this issue and its relationship to clause 22.04 which is determinative. However, we also have reservations about the architecture of the proposed extension and the effect that the extension as proposed will have on how the building is perceived within its urban environment.
4. We discuss these issues below before turning to a number of other less determinative considerations.

1. Clause 22.04 provides that for the Mixed Use Zone within the policy area the preferred maximum in height is 14 metres and the preferred minimum frontage setback is 15 metres. Clause 22.04 is in effect implementing the Bayside Industrial Area Strategy - 2004. The following extract from that industrial strategy is the most relevant extract for the purposes of this discussion.

7.6 Bay Road South Side - Height (14m), Setback, Landscaping and Design Guidelines

Bay Road is the key road that provides access to the industrial area. Whilst it has a reasonable appearance at present (in parts), further opportunities exist to upgrade the appearance and landscape qualities of both the road reserve and of abutting properties.

Controls should be applied to all properties along the south side of Bay Road. Requirements should include a maximum building height (14 metres), a generous standard front setback for buildings (15 metres), the requirement for landscaping in the frontage and design guidelines for new buildings. The aim should be to provide high quality medium to low rise buildings in a strongly landscaped setting.

A 14m maximum building height has been identified at this time to respect the generally low rise nature of development throughout Bayside, whilst providing some incentive for redevelopment of former industrial sites.

Detailed urban design guidelines will need to be prepared to provide further guidance regarding the image and built form to occur throughout the area in the future.

We consider that the paragraph we have underlined is a relevant statement of the strategic purpose of the preferred height limit of 14 metres.

1. Referring to the preferred height of 14 metres in our original decision permitting the now constructed eight story building, we said the idea that buildings might exceed this limit on a very large site with an area of 2.35 hectares and with no significant sensitive interfaces should be uncontroversial.
2. The reality is that within the Bayside community the original proposal for 11 stories and the current proposal for 10 stories are both controversial. Indeed, even when the height of the original 11 storey building was reduced to 8 stories its height remained controversial.
3. The original proposal for the development of the land[4] attracted in the order of 1000 objections and in the subsequent appeal in respect of this application the Tribunal received 147 statements of grounds. In the current application to amend the permit the Council gave notice of the application to all the original objectors and as a consequence of this the Tribunal received 62 statements grounds.
4. These reactions to the original proposal and the current incremental amendment reflect a continuing antipathy within the Bayside community to the development of higher buildings, at least on this site but more probably within the municipality generally.
5. Bayside is not unique as consequence of its low-rise development, it is an almost universal characteristic of suburban development in Melbourne from the end of the 19th century through to the 1960s when the boom in the development of three-storey walk up flats changed the dominance of single story dwellings in some parts of the city. Bayside is also not unique in the prevalence of the community's antipathy to any development in excess of two stories. What is important in this case is that the community's attitude to building height, its preference for the preservation of the low-rise character of the city, has obviously informed the development of the design guidelines within the Bayside Industrial Strategy 2004 and then the provisions of clause 22.04.
6. Therefore while the size of the opposition to this current proposal reflected in the number of statements of grounds received is not a relevant consideration per se[5], it is relevant that the preferred height limit in this case has been so directly related to a community aspiration to preserve the low-rise character of Bayside. An aspiration which would appear to a continuing aspiration of the Bayside community.
7. Another controversy in respect of this current application to amend the existing permit relates to the argument that, to put it colloquially, the application to amend the permit an improper second bite of the cherry. For example, Mr Martin submitted:

If VCAT allows this extension of floors, and roof, then the original VCAT decision has been overturned by an application based on inputs that the developer purposely caused (such as constructing an ugly building) to ensure the application meets the legislative requirements.

A Tribunal that allows this type of behaviour really loses its respect with the community as they become completely confused on the overall purpose of VCAT.

1. We accept that this is the conclusion that might be drawn by some in the community but such a conclusion completely misunderstands the legal framework within which the Tribunal must act. The Planning and Environment Act 1987 enables an owner of land to make an application to amend a permit. When such an application is made the Tribunal is obliged to decide the application on the basis of the merits of the application. It would rarely be proper for the Tribunal to find that a proposal to amend a permit was inappropriate because the amendment applied for should have been included in an earlier application.
2. In this case it was prudent of the applicant to modify the original proposal so it had a very high chance of success. In this way a permit is granted and work could proceed enabling a proposal for the more controversial aspects of the applicant's original scheme to be considered by the Tribunal without causing delay to those aspects of the proposal already approved and which have been judged to be acceptable.

1. Mr Finanzio in his submission argued that while there was some flexibility on large sites for building heights greater than 14 metres, there must remain a limit beyond which a proposal should be regarded as being unacceptably inconsistent with clause 22.04 and the preferred height limit. Mr Finanzio submitted:
   1. It is true that clause 22.04 does not "dictate" height limits on the subject land. It is also the case that on this particular part of the subject land greater flexibility in relation to the application of the nominated height limit can be expected.

1. Notwithstanding the existence of "flexibility" sufficient to depart from the policy guidance contained in clause 22.04, it must be the case that there remains a limit.
2. The delineation of the limit is not an easy matter.
3. Mr Townshend on the other hand relied on our earlier decision as evidence of the appropriateness of a flexible approach to the application of the preferred height limit. It was also submitted that this approach was supported by the age and the limited origins and purposes of the Bayside Industrial Area Strategy which predates the decision to incorporate a larger area of Mixed Use Zone within the Business Employment Area.[6]
4. It is true that the Bayside Industrial Area Strategy and the amendment proposing the adoption of the precursor to clause 22.04 proceeded on the basis that there would be no residential development within this part of the Business Employment Area. However, neither the panel considering the planning scheme amendment nor the Council subsequently considered it necessary to revisit the proposed design guidelines in respect to height.
5. One could anticipate that the flexibility available on a large site referred to above may indeed be greater for residential development that it would be for a commercial building in which large single level floor areas are usually considered to be preferable. But in our view none of this changes the fact that in exercising the discretion to be flexible about height, in the face of the specified preferred height of 14 metres, then there must be a point of which the height of the building becomes unacceptable having regard to the strategic purpose of the preferred height limit.
6. In relation to this debate about the proper application of clause 22.04 we acknowledge that:
   1. If clause 22.04 did not exist, then having regard to the site characteristics of the land and the much more general state and local planning policies relevant to a strategic redevelopment sites, then a 10 storey or even higher building may result in an acceptable outcome[7].
   2. It is perhaps strongly arguable that the implementation of the new residential zones makes it even more important that large sites in Mixed Use Zones are redeveloped to their full potential.
   3. The pace of change represented by the construction of large apartment buildings in this relatively newly created Mixed Use Zone is at least suggestive of the idea that there is a significant unmet demand for this housing type within Bayside.
   4. The apartments proposed in the additional two floors would provide a very high standard of accommodation of a type not commonly available within Bayside.

Nevertheless, it is our opinion that clause 22.04 is the most specific expression of local planning policy relevant to this land and that a balanced decision must seek to give effect to the policy.

1. In this case we were able to inspect the substantially complete central building of the three buildings originally permitted. Notwithstanding the fact that the completed building is the largest of the three permitted buildings and is viewed without the four and five story context which will be provided by these other buildings, it was apparent to us that the six and eight story elements of this building will be viewed as being relatively unremarkable variations from this basic level of development. In our opinion the building as it currently stands should not be properly regarded as being an inappropriate departure from the strategic purpose of the preferred height limit.
2. On the other hand we are concerned that the two additional stories proposed will render the existing eight story portion of the building a distinctly different building element. Instead of being an unremarkable variation in height, comfortably consistent with the four and five stories inherent to the preferred height limit it becomes an obviously different element standing out from the conventional building heights which are to emerge as a consequence of the operation of the preferred height. Ultimately we consider that the proposed two-storey extension will result in an inappropriate departure from the preferred height limit specified in clause 22.04 and the strategic purpose to respect the generally low rise nature of development throughout Bayside, whilst providing some incentive for redevelopment of former industrial sites.

1. The form of the proposed additional 2 levels is a rectangular box shape, with an angled shaped roof in both plan and elevation. The rectangular box is clad in tinted glass. This shape and dark glazing is visually juxtaposed to the angular concrete balustrade forms to the existing building, in both its shape and materiality. The "butterfly" roof/eave is a form reflecting the angular shapes of the balustrades. This roof element appears to have no functional purpose, as its size and position will have little effect on minimizing sun penetration to the glazed facade, particularly to the north and west elevations. This roof shape is not visually recessive, performs no practical use, is primarily a decorative feature, and is not "visually discreet."
2. As noted previously, the overall profile of the Central building has been changed from the original 4 level stepped to 11 level building, to a more incrementally stepped 4 level, 6 level, stepped up to an 8 level building, which we approved. What is now proposed is a 4 level, 6 level, stepped up to 10 level Central Building. This incremental creep nearly matches the height of the original building that was rejected prior to the first hearing.[8]
3. From an architectural perspective we have reservations about the design resolution of the proposed additional levels. It was suggested that the proposed levels would provide the building with a cap enhancing the appearance of the building. We are concerned that the design proposes a new structure which is too large and does not respond well enough to the articulation or stepped design to be a successful addition to the existing building.
4. Mr Czarny analysed the visual impact of the proposed additional two stories from various viewpoints around the subject land. Mr Czarny was of the opinion that the taller building when viewed from what could be loosely described as the north-western quadrant of Sandringham College's playing fields would have an unacceptable impact on the experience of people within this space. He was not otherwise concerned about the visual impact of the proposed building.
5. In our 2010 decision[9] we concluded that the proposed buildings including the eight story element would not be unduly prominent saying:
   1. In our view the building will not be unduly prominent viewed from the surrounding environment i.e.:
      • There are only a handful of dwellings north of Bay Road which would have an unobstructed view to the eight storey element. These dwellings are more than 100 metres from the building and in time this view will be of substantially filtered by the proposed vegetation;
      • A number of dwellings on the south side of Holloway Road and Wangarra Road have views towards the eight storey element without intervening buildings, these views are filtered through the existing vegetation on the southern edge of the Sandringham Secondary College's sports ground and all these dwellings are more than 200 metres from the building;
      • A pedestrian in Bay Road will have an oblique view of the eight storey element where they are able to view the building through the proposed landscaped spaces between buildings, the eight storey element would otherwise be substantially screen from the view of users of Bay Road;
      • The eight storey element will not be visible from the pathways which traverse both the east and west boundaries of the subject land;
      • From more distant view points, the building will from time to time be visible through gaps between fore ground objects but would otherwise be invisible;
      • The eight storey element will be clearly visible from within the Sandringham Secondary College sports ground.

In 2010 we did not view the College or its playing fields as a sensitive viewpoint and this remains our opinion.

1. Viewed from Holloway Road the building as it is presently constructed is viewed in the gaps between the trees in Holloway Road itself and on the edge of the playing fields. The additional two stories will be a readily discernible difference in height viewed from the various viewpoints along Holloway Road.
2. However, these views are relatively distant views and if the height of the building at 10 stories was justifiable from a planning policy perspective, and the architecture was acceptable from an urban design perspective, then viewed from this distance the higher building could not be regarded as being so overbearing that it would outweigh a positive assessment of the proposal from the planning policy perspective. The difficulty in this case is that we have concluded that the local planning policy does not support the building of this height.

1. As previously stated, one of the primary concerns at the first hearing was the effect of overshadowing onto the adjacent school grounds. We agreed that the overshadowing to these grounds was not unreasonable. However, what was not a serious consideration at that time, were the effects of overshadowing within the site. Mr. Fender's original evidence was that the wide-open spaces between the proposed buildings were integral part of the original design. It would provide landscaped external semi private open space for the residents. The 30 metres open space between buildings, would allow more than adequate distances with regards to overlooking and overshadowing between buildings.
2. The proposed Shadow Studies-September, TP901 Revision P2, by Watson Young Architects, compared the shadows from the Endorsed Plan with the shadows from the Proposed Level 8/9, 2-storey extension.
3. The shortcoming of this drawing is that shadows that affected the adjacent proposed buildings to the east and west are not immediately appreciable. What should have been shown in conjunction with these horizontal shadow projections, were vertical projections onto these flanking buildings to the east and west. At the most critical times of 9 am and 3 pm, the shadow projections from the "butterfly" were more than 4 metres longer horizontally than the existing buildings shadow. Mr. Czarny's evidence, showed one diagram in section with the vertical overshadowing affecting more than one additional level than what was affected by the existing building.
4. This additional overshadowing should not be considered inconsequential, as it will further impact not only on more apartments internal to this complex, but on the landscaped open space between buildings, so important to this design. We acknowledge however, this diminution of amenity resulting from the extent of access to sunlight for a number of apartments is a diminution from a very high standard resulting from the decision to have very large spaces between buildings.

1. The materiality of the proposed 2-storey extension would differentiate it from the overall appearance of the external materials used on the existing 8 storey building. However, it should not be considered "visually discreet".
2. The proposed "butterfly" roof to the extension is non-functional and decorative only. It provides very minimal solar shading.
3. The "footprint" of the proposed extension is very similar in area to the roof to Level 7 below, with only a modest 2-metre building alignment setback to the south elevation.
4. There is a progressive increase in setbacks to the south elevation of the Central Building, from the ground floor up, stepping from 5 metres at level 4, to approximately 10 metres at Level 6. This same progressive setback rhythm was not applied to the south elevation of the proposed 2-storey extension.
5. The additional overshadowing from this 2-storey extension onto the landscaped open space and adjacent buildings is problematic.

1. We dealt with the issue of what constituted a reasonable proportion of commercial activity in a mixed-use development on this land within the Business Employment Area in considerable detail in the 2010 decision[10].
2. There is proposed a fairly significant reduction in the amount of commercial activity proposed as part of this application to amend the permit. The most significant reduction is the reduction in the size of the proposed medical centre from 20 practitioners to 10 practitioners. There continues to be commercial activity at ground floor level fronting onto Bay Road in accordance with the expectations of policy. The applicant submits that these changes are driven by its experience since 2010 in attracting investors or tenants to the proposed commercial tenancies.
3. Council did not oppose the change to the mix of residential versus commercial floor spaces within the development. It was an issue raised by a number of objectors in their statements of ground and it was an issue referenced by the Minister for Planning in his submission to the Tribunal[11].
4. While losses in commercial floorspace within the Business Employment Area are to be avoided where possible, considering the area as a whole the implications of the proposed changes are not significant. Particularly in the context of a proposal on a site within the Mixed Use Zone where a significant residential outcome is also an objective of policy.
5. On balance we consider that for the reasons we outlined in our earlier decision the mix of uses proposed in this application remains in the acceptable outcome from a policy perspective.

1. Two of the commercial tenancies proposed are a shop and a cafe. The shop is a large convenience shop or small independent grocery. The application to amend the permit seeks to extend the permissions granted by the permit to include permission for the sale of packaged liquor from the shop and the sale and consumption of liquor within the cafe. In both cases permit conditions proposed ensure that liquor will not be able to be sold or consumed after 11pm on any night.
2. Council does not oppose this aspect of the application to amend the permit. In the officer's report in respect of the current application it was reported that Council's social planner does not consider that the sale and consumption of liquor associated with the cafe or the shop would result in social harm in the community.
3. Submissions on behalf of Sandringham College strenuously oppose the licence for the sale of packaged liquor from the shop. It is argued that the presence of these licensed premises will increase the risk of underage drinking by their students and/or the consumption of alcohol by students who are 18 years of age during school hours.
4. The school in particular refers to the proximity of these proposed premises to the laneway which abuts the western boundary of the land and which is used by staff and students to access the school premises from Bay Road and to move between the school campuses during the school day. It is submitted that the effect of this that students will pass these premises on a day-to-day basis.
5. All licensed premises within a reasonable radius of a school pose some risk in respect of the inappropriate use of alcohol by students of the school. The level of risk is unquantified. A countervailing consideration is the benefit that these licensed premises will bring to the residential community emerging in this Mixed Use Zone to the South Bay Road.[12]
6. On balance we consider that the readily understandable benefits which arise from the liquor licences sought in this case outweigh any concern arising from an uncertain and/or unquantifiable risk to the students of the College. Our conclusion in this regard was reinforced by our inspection. When we considered the location of the proposed shop and its relationship to Bay Road and the laneway to the west the land we did not have any sense that the outcome would be inherently inappropriate.

1. For the reasons are set out above we have decided to allow all aspects of the application to amend the permit other than the proposal to increase the height of the highest portion of the existing building from 8 stories to 10 stories. In relation to the two story extension we formed the view that the extension will result in an inappropriate departure from the preferred height limit specified in clause 22.04 and the strategic purpose to respect the generally low rise nature of development throughout Bayside, whilst providing some incentive for redevelopment of former industrial sites.

220 - 224 Bay Road & 226 - 228 Bay Road, Sandringham

The construction of buildings and associated works, the use of the land for accommodation (serviced apartments), medical centre, shop, licensed shop, licensed food and drink premises (cafe), and office, sale and consumption of liquor, a reduction in required car parking, bicycle and loading facilities and the removal of native vegetation in accordance with the endorsed plans and subject to the following conditions.

1. Within 120 days of the issue of the amended permit as directed by the Tribunal in VCAT Ref No. P815/2014, 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 this permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be in accordance with the endorsed plans but modified to be generally in accordance with the following plans:TP101 Rev J; TP102 Rev H; TP103 Rev L; TP104 Rev G; TP105 Rev G; TP106 Rev G; TP107 Rev G; TP108 Rev G; TP111 Rev D; TP112 Rev A; TP113 Rev A; TP200-1 Rev G; TP200-2 Rev G; TP202-1 Rev E; TP202-2 Rev E; TP203 Rev D, all prepared by Watson Young Architects Pty Ltd and amended to show:
   • (a) Deletion of the upper two levels of the central building;
   • (b) Improvements to the aesthetics and/or amenity of the long central hallways in the central building and associated improvements to the natural lighting and ventilation of the these hallways;
   • (c) A notation on the plan indicating that the area shown as being used for the purpose of medical centre can alternatively be used in whole or in part for the purpose of office;
   • (d) A notation on the plan indicating that the area shown as being used for the purpose of any SOHO apartment can alternatively be used solely for the purpose of office;
   • (e) Water Sensitive Urban Design features in accordance with the requirements of Condition 12 of this permit.
   • (f) Environmentally sustainable design measures in accordance with and environmentally sustainable design report and implementation strategy, prepared by a suitably qualified expert, submitted to and approved by the Responsible Authority;
   • (g) Each SOHO apartment to be provided with an independent secluded area of private open space.
   • (h) A minimum of 6 cubic metres of storage must be provided in the basement for each dwelling/tenancy.
   • (i) A 2 metre high opaque fence on that part of the boundary with Sandringham Secondary College that does not adjoin the school's sports ground;
   • (j) Landscape plan in accordance with condition 2 of this permit.
   • (k) The provision of underground services and the provision of an on-site substation.
   • (l) Any proposed staging of the development including a detailed works programme.
   • (m) All building heights to be shown on the plans in metres above Natural Ground Level.
   • (n) Relevant plan related outcomes arising from Melbourne Water and VicRoads conditions;
   • (o) Basement ramps, transitions and headroom clearances; car parking spaces disabled spaces and loading bays to comply with the relevant Australian Standards and all dimensions to be shown on the plans.
   • (p) The location of all plant and equipment including baffling as required to ensure compliance with State Environment Protection Policy (Control of Noise from Commercial, Industrial or Trade Premises within the Melbourne Metropolitan Area) No. N-1.
   • (q) All pipes, fixtures, fittings and vents servicing any building on the site except downpipes must be concealed in service ducts or otherwise hidden from view.
   • (r) Lift structures (including lift overruns mounted above the roofline of the buildings) must be shown on the plans and must not exceed 2.4 metres in height above the finished roof level.
   • (s) A detailed schedule and description of construction materials, external finishes and colours (incorporating samples). The exterior colour and cladding must be of a non-reflective nature.
   • (t) The internal layout and proposed seating plan for the cafe.
2. The use and development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
3. Prior to the commencement of works a Landscape Plan must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of this permit. The plan must be generally in accordance with the Landscape Master Plan by Tract Consultants. The plan must be drawn to scale with dimensions and three copies must be provided. The landscaping plan must incorporate planting that is complementary and compatible with the Heathland species and must show:
   • (a) trees to be removed, both on-site and in the road reserve, generally in accordance with the plan CG109230 T 01 rev. P1 tabled at the hearing of Victorian Civil And Administrative Tribunal application P2392/2010,
   • (b) details of surface finishes of pathways and driveways.
   • (c) a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant.
   • (d) landscaping and planting within all open areas of the site.
   • (e) All species selected must be to the satisfaction of the Responsible Authority.
   • (f) The landscape plan must also indicate that an in-ground irrigation system is to be provided to all landscaped areas.
4. Before the occupation of any building, all works relevant to that building including landscaping shown on endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
5. The landscaping shown on the endorsed plans must be maintained (including that any dead, diseased or damaged plants are to be replaced) to the satisfaction of the Responsible Authority.
6. Before any land use commences, a Green Travel Plan must be prepared to the satisfaction of the Responsible Authority following consultation with the Department of Transport (Public Transport Division). The plan must be prepared by a suitably qualified person and must encourage the use of non-private vehicle transport modes by the occupiers of the land. The plan must include, but not limited to the following:
   • (a) A description of the location in the context of alternative modes of transport, including walking, cycling and objectives for Green Travel Plan;
   • (b) Outline Green Travel Plan measures for the development including but not limited to:
     • (i) Household welcome packs - train and bus timetables relevant to the local area must be included in the pack of information provided to purchasers upon a purchaser's occupation of an apartment;
     • (ii) Include a minimum of 10 x 2 hour metcard (zone 1 & 2) within the household welcome pack or a myki rail pass (of equivalent value) and registration information;
     • (iii) Bicycle parking and facilities available on the land;
     • (iv) Local walking paths and networks to key destinations;
     • (v) Monitoring and review; and
     • (vi) A plan showing the bicycle parking areas to be provided for use by residents
7. The Green Travel Plan must not be amended without written consent of the Responsible Authority following consultation with the Department of Transport (Public Transport Division).
8. Once approved the Green Travel Plan must form part of the planning permit and any ongoing Management Plan for the land to ensure the Green Travel Plan continues to be implemented by residents/owners to the satisfaction of the Responsible Authority.
9. Prior to the commencement of any works, a Construction Management Plan shall be submitted to and approved by the Responsible Authority. When approved, the Construction Management Plan will then form part of this permit. The Construction Management Plan, is not limited to but must include measures relating to:
   • (a) Hours of construction;
   • (b) Control of noise, dust and litter;
   • (c) Vehicle access and deliveries;
   • (d) Protection of public assets;
   • (e) Communication with the council and the public;
   • (f) The management of construction vehicles and construction vehicle parking;
   • (g) Prevention of the deposition of mud or other materials on roadways.
   • (h) The protection of pedestrian access along the laneway to the west on the land;
   • (i) The protection of the natural values of Heathland flora and fauna.

The Construction Management Plan must be implemented to the satisfaction of the Responsible Authority. The Construction Management Plan must not be modified unless with the prior written consent of the Responsible Authority.

1. Before commencement of works, a Traffic and Parking Management Plan to the satisfaction of VicRoads and Bayside must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of this permit. Three copies of the plan must be submitted. The plan must include but is not limited to:
   • (a) The allocation of car parking for commercial uses in accordance with endorsed plans;
   • (b) Signs and pavement markings to direct and control the flow of traffic within and exiting the site including for the basement and loading areas. This includes warning signs for drivers and pedestrians.
   • (c) Lighting and security arrangements within the basement.

The Traffic and Parking Management Plan must be implemented to the satisfaction the Responsible Authority. The parking management plan must not be modified unless with the prior written consent of the Responsible Authority.

1. Before commencement of works, a Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of this permit. Three copies of the plan must be submitted. The plan must include but is not limited to:
   • (a) No bins stored on Bay Road.
   • (b) Provision on the site for the collection of garbage and other solid waste by private contractor. This area must be graded and drained and screened from public view.
   • (c) All waste material not required for further on-site processing must be regularly removed from the site. All vehicles removing waste must have fully secured and contained loads so that no wastes are spilled or dust or odour is created.
   • (d) No vehicles permitted to obstruct the pedestrian access to the school.

The Waste Management Plan must be implemented to the satisfaction the Responsible Authority. The Waste Management Plan must not be modified unless with the prior written consent of the Responsible Authority.

1. Before the commencement of works, a detailed Stormwater Plan must be submitted to and be approved by the Responsible Authority. When approved, the Stormwater Plan will be endorsed and will then form part of this permit. The Stormwater Plan must include plans be drawn to scale with dimensions and three copies must be provided. The plans must be in accordance with the guidelines outlined in Clause 22.10 of the Bayside Planning Scheme and must show:
   • (a) The type of water sensitive urban design stormwater treatment measures to be used;
   • (b) The location of the water sensitive urban design stormwater treatment measures in relation to buildings, sealed surfaces and landscaping areas; and
   • (c) Design details of the water sensitive urban design stormwater treatment measures, including cross sections.

The Stormwater Plan must demonstrate compliance with the Urban Stormwater Best Practice Environmental Management Guidelines, CSIRO 1999 to the satisfaction of the Responsible Authority.

1. The water sensitive urban design stormwater treatment system as shown on the endorsed Stormwater Plan must be implemented, retained and maintained at all times in accordance with the Urban Stormwater - Best Practice Environmental Management Guidelines, CSIRO 1999 to the satisfaction of the Responsible Authority.

1. Except with the consent of the Responsible Authority, the number of medical practitioners in the Medical centre must not exceed 10 medical practitioners at any one time.
2. Except with the consent of the responsible authority the café can only be open to the public between 7.00am and 11.00pm any day.
3. Except with the consent of the responsible authority, the sale of packaged liquor from the shop and the sale and consumption of liquor associated with the food and drink premises (café) within the Central Building may only be carried out between the hours of:
   • (a) 9am to 11pm Monday to Saturday;
   • (b) 10am to 11pm Sunday;
   • (c) 12pm to 11pm Good Friday, ANZAC Day and Christmas Day
4. The predominant activity carried out in the food and drink premises (café), must be the preparation and serving of meals for consumption on the premises to the satisfaction of the Responsible Authority.
5. Before any building is occupied, the area(s) set aside for the parking of vehicles and access lanes as shown on the endorsed plans for that building, must be:
   • (a) Constructed;
   • (b) Properly formed to such levels that they can be used in accordance with the plans;
   • (c) Surfaced with an all-weather-seal coat;
   • (d) Drained;
   • (e) Line marked to indicate each car space and all access lanes; and
   • (f) Clearly marked to show the direction of traffic along access lanes and driveways.

Car spaces, access lanes and driveways must be kept available for these purposes at all times to the satisfaction of the Responsible Authority.

1. Vehicular crossing(s) must be constructed to the road to suit the proposed driveway(s) to the satisfaction of the Responsible Authority and VicRoads. Any redundant existing crossing or crossing opening must be removed and replaced with footpath, nature strip, and kerb and channel to the satisfaction of the Responsible Authority and VicRoads. All costs associated with compliance with these requirements must be borne by the permit holder.
2. At no cost to VicRoads or the Responsible Authority, the permit holder is responsible for the relocation of any power poles, trees, guard posts, road furniture or services that may be required to construct the approved development.
3. Prior to the commencement of any works (including demolition), tree protection fences must be erected around the street trees and must be retained to define a 'Tree Protection Zone'. The fences must be constructed of star pickets and chain mesh or similar to the satisfaction of the Responsible Authority. The tree protection fences must remain in place until all construction works are completed.

The ground surface of the Tree Protection Zone must be covered by a 100 mm deep layer of mulch before the development starts and be watered regularly to the satisfaction of the Responsible Authority.

1. No vehicular or pedestrian access, trenching or soil excavation is to occur within the Tree Protection Zones without the written consent of the Responsible Authority. No storage or dumping of tools, equipment or waste is to occur within the Tree Protection Zone.
2. Any pruning that is required to be done to the canopy of any street tree and any pruning of the root system of any street tree must only be carried out by or on behalf of the Responsible Authority to the satisfaction of the Responsible Authority.
3. Noise levels emanating from the premises must not exceed those required to be met under State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1 to the satisfaction of the Responsible Authority.
4. All security alarms or similar devices installed on the site must be of a silent type in accordance with any current standard published by Standards Australia International Limited and be connected to a security service.
5. External lighting (domestic and commercial) must be designed, baffled and located so as to prevent any adverse effect on adjoining land and in particular the Heathland, to the satisfaction of the Responsible Authority.
6. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building(s) without the written consent of the Responsible Authority.
7. Plans for the construction of the outfall drain must be approved by the Responsible Authority in writing prior to the commencement of any works.
8. Drainage must be to the satisfaction of the Responsible Authority. Any paved areas must be graded/drained to prevent stormwater discharge into adjacent properties. No polluted and/or sediment laden run-off is to be discharged directly or indirectly into drains or watercourses and pollution or litter traps must be provided on site to the satisfaction of the Responsible Authority.
9. The use and development must be managed so that the amenity of the area is not detrimentally affected, including through the:
   • (a) transport of materials, goods or commodities to or from the land;
   • (b) appearance of any building, works or materials;
   • (c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; and
   • (d) presence of vermin.

1. The permit holder must ensure that public transport infrastructure is not altered without the consent of the Director of Public Transport or damaged. Any damage to public transport infrastructure must be rectified to the satisfaction of the Director of Public Transport at the full cost to the permit holder.
2. The east and west access streets must not impact on the existing bus movements in Bay Road to the satisfaction of the Director of Public Transport.

1. No polluted and / or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
2. Any new building must be constructed with finished floor levels a minimum of 300mm above the applicable flood level.
3. The entry / exit driveway of the basement car park must incorporate a flood proof apex of a minimum of 300mm above the applicable flood level.
4. All doors, windows, vents and openings to the basement car park must be a minimum of 300mm above the applicable flood level.
5. Any drainage system to the basement must be designed such that stormwater is unable to penetrate the basement.
6. Prior to the issue of a Certificate of Occupancy, a certified survey plan, showing finished floor levels (as constructed) reduced to the Australian Height Datum, must be submitted to Melbourne Water to demonstrate that the floor levels have been constructed in accordance with Melbourne Water's requirements.
7. Prior to the commencement of any works, detailed landscaping plans must be submitted to Melbourne Water for approval that shows the location, density and species.
8. At least 21 days prior to commencement of works, a Site Management Plan detailing pollution and sediment control measures, must be submitted to Melbourne Water.
9. The building/structure including footings, eaves etc must be set outside any easement or a minimum 1.5 metre laterally clear of the outside edge of the main drain, whichever is greater.
10. Prior to the commencement of works, the depth of the footings must be adequate to satisfy the angle of repose relative to the drain as per Melbourne Water's specification.
11. Prior to the commencement of works, direct to Melbourne Water, must be made for any new or modified storm water connection to Melbourne Water's drains or watercourses.

1. Prior to the commencement of any road works detailed engineering layout must be submitted to and approved by VicRoads. The plan must be generally in accordance with the functional layout CG109230 (Revision P1) dated 22 November 2010 prepared by Cardno Grogan Richards.
2. Prior to the commencement of road works, public lighting and traffic signal layouts consistent with the approved functional layouts must be submitted to and approved by VicRoads.
3. An independent Road Safety Audits (RSA's), conducted by a VicRoads pre-qualified consultants and in accordance with Austroads Road Safety Audit Guidelines (2009), shall be completed at that Detailed Design Stage (including traffic signal, public lighting layouts) and Post-Opening Stage, and the associated reports are to be submitted to VicRoads for approval. Any identified issues must be addressed to VicRoads' satisfaction.
4. The signal installation works must be carried out to VicRoads' standards by a VicRoads pre-qualified signals contractor (STS Metro). VicRoads will arrange for the supply and installation of traffic signal controllers and telecommunications and power connections, at an appropriate time, and all at the Permit holder's expense.
5. Prior to the commencement of the road works the developer must:
   • (a) Apply for and receive written consent from VicRoads, for the road works in accordance with Section 63 of the Road Management Act
   • (b) Provide a payment to VicRoads for all costs associated with the installation of public lighting, including the predetermined cost of 10 years maintenance, where public lighting is required.
   • (c) Provide a payment to VicRoads for all costs associated with the installation of traffic signals, including the predetermined cost of 10 years maintenance.
   • (d) Provide a bank guarantee, without a termination date, in favour of. VicRoads for a sum equal to the estimated cost of roadworks associated with access arrangements to Bay Road.
   • (e) Provide evidence that the contractor has a public liability Insurance policy for at least $10 million that will be effective for the duration of the works.
   • (f) Provide VicRoads with the name, address business and out-of- hours telephone numbers of the principal roadworks contractor.
   • (g) Submit to VicRoads for approval, a Traffic Management Plan showing the proposed provision for traffic and signing for the duration of the works at least 21 days prior to the commencement of works.
   • (h) Arrange for the contractor to contact the VicRoads surveillance coordinator on telephone number 9881 8079, at least (14) working days prior to the commencement of roadworks. Please note that the contractor will be charged for the actual cost of VicRoads surveillance which may be undertaken at certain key times during the works.
6. Where any road works, footpath or other road features lie outside of the existing declared road reserve, a widening of the road reserve will be required, at a cost borne by the permit holder. A licensed surveyor must be engaged to prepare a plan of subdivision to the satisfaction of VicRoads showing the affected land labelled "ROAD", which is to vest the Roads Corporation without any encumbrances. Subsequent to the registration of the plan, the permit holder shall ensure that the original Certificates of Title that issue in the name of the Roads Corporation shall be forwarded via registered post to: VicRoads - Property Services Department, 60 Denmark Street KEW, 3101
7. Prior to the occupation or use of the permitted development, the proposed accesses and the associated roadworks must be completed in accordance with the approved detailed engineering plans to the satisfaction of VicRoads.
8. The developer must arrange for and pay the full costs of all roadworks including service relocations, drainage works, traffic signals, pavement markings, public lighting and surveillance, and other costs that may arise as a result of the proposed development.

1. This permit will expire if one of the following circumstances applies:
   • (a) the use and development and use is/are not started within two years of the date of this permit.
   • (b) the development is not completed within six years of the date 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.

APPENDIX B - EAST ELEVATION - PERMITTED & PROPOSED

[1] Permit 5/2010/232/1 issued as a result if the decision of the Tribunal in Bay Road Pty Ltd v Bayside CC [2010] VCAT 2062.

[2] The subject land and adjoining land is now within the Mixed Use Zone as a result of a recommendation of the Independent Panel considering the planning scheme amendment to implement the Bayside Industrial Strategy 2004. The land which was originally put in the Business 3 Zone is now in the Commercial 2 Zone.

[3] See appendix B for comparative east elevations.

[4] A proposal for an 11 story building later to be reduced to 8 stories.

[5] Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd[2013] VSC 505 at

[6] See paragraphs 11 and 12 of Mr Townshend's submissions.

[7] Provided of course that external and internal amenity impacts could be satisfactorily resolved.

[8] We note that the current endorsed plans indicate spaces for the installation of plant and equipment on the roof above level 7 and on the roof above level 5 between the six and eight story elements of the central building. It would appear from our inspection that all plant and equipment has been located on the roof above level 5.

[9] Bay Road Pty Ltd v Bayside CC [2010] VCAT 2062

[10] Bay Road Pty Ltd v Bayside CC [2010] VCAT 2062

[11] The applicant submitted that the Tribunal should give no weight to the Minister's submission submitting that the letter did not constitute an example of the Minister intervening in a hearing in accordance with the special powers afforded to him under the Act. Council did not resist this submission. In the event it was unnecessary for us to determine this question.

[12] There are 470 dwellings proposed on the subject land, there is a large four-storey apartment building nearing completion on the adjoining land to the west and a 4 to 6 story mixed-use development beyond that. There will ultimately be a significant residential population immediately approximate to these proposed licensed premises.