Each apartment would comprise three bedrooms and an open plan living area with access onto a balcony. Two car parking spaces for each apartment would be allocated from surplus spaces within the existing basement car park of the building.

Application under section 87A of the Planning and Environment Act 1987 - to amend a planning permit issued at the direction of the Tribunal.

Clause 32.04 Construction of dwellings on common property

The site is located on the southern side of Bay Road, and has an overall area of 2.35 hectares. It has already been developed with three separate mixed use buildings which were authorised by planning permit No. 5/2010/232/1 (as amended) issued at the direction of the Tribunal on 20 December 2010.

The first of these buildings to be constructed is central to the site, is eight storeys in height and is now occupied. The top floor of this building (i.e. where the proposal is to be constructed) is managed by a body corporate which we understand is controlled by the applicant. Access to the top floor is via arrangement with different body corporates which have also been established to manage part of the broader site.

The second of these buildings to be constructed is located to the west of the central building and is five storeys in height. This second building has also been constructed and occupied.

Construction of the third building, which is located to the east of the central building and is also five storeys in height, is almost complete.

The permit has been subsequently amended a number of times, including as a result of a further decision of the Tribunal in 2014 and more recent decisions of Council.

We carried out an unaccompanied inspection of the site and surrounds on 6 June 2018.

1. The applicant has almost finished developing the land with three mixed use buildings which were authorised by a planning permit issued in 2010 at the direction of the Tribunal (the Permit).[2] While it had originally applied for a permit for a more intensive development of the site (with a central building of 11 storeys in height) by the time that the matter was considered by the Tribunal in 2010, the applicant sought to amend its proposal in a way which reduced the height of the central building to eight storeys. The Tribunal allowed the amendment and accordingly, the planning assessment carried out by the Tribunal in 2010 was for a proposal which involved a central building of eight storeys in height. Ultimately, the Tribunal decided to grant a permit for the proposal, subject to conditions (the 2010 Tribunal decision).
2. The applicant commenced the staged development of the land pursuant to the Permit, starting with the development of the central building on the site. In 2014, while it was still constructing the central building, the applicant applied to the Tribunal to amend the Permit it had granted in a number of ways, including by increasing the height of the central building from eight storeys to ten storeys. The Tribunal refused to allow the increased height of the central building, but allowed the other amendments to the Permit which had been sought by the applicant (the 2014 Tribunal decision).[3]
3. The applicant now has applied to the Tribunal to increase the height of the central building from eight storeys to nine storeys. This additional level is proposed to comprise a further three apartments on the top of the now constructed and occupied central building.
4. Council has considered the proposal and, contrary to the recommendation of its officer, decided to oppose it. Its reasons for opposing the additional apartments primarily relate to what it says is the proposal's inappropriate response to the 2014 Tribunal decision, the built height policies of clause 22.04 of the Bayside Planning Scheme (scheme) and neighbourhood character. It also opposes the proposal on the basis of what it considers unreasonable and excessive building bulk and mass, and a failure to deliver a high quality urban design outcome for existing and future residents.
5. Residents of the central building have also objected to the amendment of the Permit. These residents all have apartments on the existing top level of the central building on the site (i.e. existing 8th storey). The proposed additional apartments would create a new top level of the building, above their apartments. The residents object to the new apartments for a range of reasons, including construction impacts, noise of future residents and overlooking. They also have concerns which, for reasons we will explain, we consider to be matters which are of little relevance to our assessment of the proposal which we must carry out under the planning regulatory framework.
6. Having inspected the site and considered the submissions and evidence of the parties, and the documents filed with the Tribunal, we have decided to grant the application to amend the Permit. Our reasons follow.

1. Having considered all of the material before us, we consider that the main issues which are relevant to our determination of the matter are:
   • What is the relevance of the previous Tribunal proceedings?
   • Is the proposed additional storey an appropriate response to the built form and policy context?
   • Will the proposed additional storey give rise to unacceptable amenity impacts to third parties?
   • Will the proposed additional storey provide acceptable internal amenity for its future occupants?
   • Are the other concerns raised by the respondents relevant to our consideration of the matter, including concerns relating to the structural integrity of the building, the owners corporation, circumstances surrounding the purchase of their apartments and property value?

1. At the commencement of the hearing, the applicant sought to amend the plans it had filed with its application to the Tribunal. It had given notice of its intention to substitute its plans in accordance with Orders of the Tribunal dated 16 March 2018. These Orders required the amended plans to be served by 23 March 2018 in accordance with the details of the Order.
2. All parties consented to the substitution of the plans apart from Mr Docking.
3. Mr Docking objected to the substitution of the plans for two main reasons. The first was that he had not been present at the Practice Day Hearing on 16 March 2018 and had been away and out of email contact. He said that this meant that he had only had around a month to consider the amended plans. The second reason that he objected was that he said that the amendments were not material in nature as the footprint of the proposed apartments had not changed.
4. For reasons given at the hearing, we decided to substitute the plans. In summary, our reasons for substituting the plans were that we were satisfied that Mr Docking, on his own admission, had had around a month to consider the amended plans. This is not an unusual amount of time to be afforded to a party for the consideration of amended plans, and we considered it to be adequate in this instance given the nature and extent of the changes proposed by the amended plans.
5. In terms of Mr Docking's concern that the changes were not material, we considered this concern to be something that Mr Docking could explain to us in his submissions about the plans. There is no requirement for amended plans to only be substituted if they involve material changes. However, it is open to any party to explain, as part of their submissions on the merits of those amended plans, why they think that a set of plans does or does not make changes which materially improve town planning outcomes.

Representation of additional persons by Mr Docking

1. At the commencement of the hearing, Mr Docking indicated that he appeared on behalf of Mr Holland, as well as on his own behalf. He also indicated that he had the signatures of 72 residents of the existing buildings on the site confirming that they wanted him to represent them in objecting to the proposal. Of these, only Mr Holland was a party to the proceeding.
2. We asked Mr Docking to make submissions on this matter at the commencement of his submissions to us on the proposal. He did this, informing us that he had obtained the 72 signatures from people over the course of a number of weeks. He made no request to join these people as parties to the proceeding, nor did he submit that the applicant failed to give notice of its application. However, he said that he had always reserved his rights to add additional persons to those he represented and that is what he was now seeking to do. He also suggested that while notice of the application had been given, he considered the notice process to be inadequate in this instance and lead to people not knowing that the application was on foot. We discuss this matter further below.
3. For reasons given at the hearing, we decided to allow Mr Docking to table the document which showed the signatures of the persons which he had obtained. We noted that the document was similar in nature to a petition and we would give it similar weight.

1. Both Mr Docking and Mr Durkin, during the course of the proceeding, submitted that people within the existing building on the site had been unaware of the proposal. In response to questions from the Tribunal on this, Mr Docking and Mr Durkin confirmed that they were not aware of any failure on the part of the applicant to give notice of the application in accordance with previous Tribunal directions.
2. However, Mr Docking and Mr Durkin indicated that despite this, people within the existing building remained unaware of the proposal. Mr Docking submitted that this may have been a result of the timing of the notice, the fact that original notice of the application occurred in two rounds, and the body corporate not deciding to hold another meeting about the application after the second round of postal notice had been given.
3. Orders of the Tribunal dated 13 November 2017 required notice of the application to be given. The effect of this Order was that notice was required to be separately posted to around 437 persons and signs were required to be placed on the site.
4. On 29 November 2017, Council advised the applicant and the applicant advised the Tribunal that there had been an error in the list Council had previously provided of people to be given postal notice of the application. The error meant that postal notice of the application had not been given to owners and occupiers of the central building on the site. A Practice Day Hearing was held to consider this issue on 15 December 2017, and on 21 December 2017, the Tribunal ordered that postal notice be given to those additional owners and occupiers (around 297 persons).
5. Statements of service filed with the Tribunal confirm that service was carried out in accordance with both the Orders of 13 November and 22 December 2017.
6. There is nothing before us which indicates any failure of the applicant to give notice of the application in accordance with the directions of the Tribunal. On the contrary, all indicators point to notice having been given. These include the respondents' own acknowledgement that they received postal notice of the application, our receipt of statements of grounds from other persons, and the respondents' advice to us that one meeting of the body corporate was held in response to the first round of notice.
7. As all evidence pointed to extensive notice of the application having been given, we were satisfied that it was appropriate to proceed to hear the merits of the application, without requiring any further notice of the application to be given.

WHAT IS THE RELEVANCE OF THE 2010 & 2014 TRIBUNAL DECISIONS?

1. The legal principles which apply in civil proceedings to provide some finality to litigation processes, do not apply to planning litigation. Nor is the Tribunal bound to follow its previous decisions. However, there are a set of principles developed over a number of Tribunal and Supreme Court cases which do provide guidance in circumstances, like the present, where there are repeated applications made in respect of the same site.
2. In Amoco Australia Limited v City of Berwick[4], the Planning Appeals Board (a predecessor of the Tribunal) recognised the problems that can arise where there are repeat planning applications for a site. It found that, in this context, previous decisions should be given great weight unless there are changed circumstances which warrant a different view, stating that:

Although the Board believes that it should deal with this appeal on its merits it also holds that, in determining the appeal, it should pay regard to the previous decision of the Board and give great weight to that decision. Public policy demands that there be some end to litigation. If applicants were to repeatedly come before the Board, perhaps seeking to exhaust the patience of the Board or even in an attempt to pick and choose a suitable division of the Board to hear the appeal, then it would be to the detriment of the appeals system. Moreover repeated appeals would impose unnecessary costs on respondent parties including, in some cases, psychological costs. One can imagine a case where a developer wears down both a Responsible Authority and objectors by repeatedly making fresh applications. This ought to be discouraged......

...the Board believes that an applicant can make repeated applications for a permit and repeated appeals to this Board. However in determining any subsequent appeal the Board should take the earlier determination into account and give it great weight. Generally speaking the earlier decision should not be reversed unless the applicant can show a change in circumstances which warrant a different view.

1. The principles adopted in Amoco, have been adopted and expanded upon in other decisions of the Tribunal and the Supreme Court. Circumstances which have been found in subsequent cases to be matters which may justify a different view being taken to that of a previous Tribunal include:
   • significant changes in the application itself;
   • changes in the circumstances of the land and its surrounds;
   • changes in planning policy; and/or
   • changes in the interpretation of the facts or law relevant to the Tribunal's consideration.[5]
2. The principles outlined above seek to prevent applicants repeatedly making the same or a very similar application in the hope of having it approved by a differently constituted Tribunal or in the hope of wearing down opposition. However, past decisions of the Tribunal[6] have recognised that care must be taken not to apply these principles in an over-zealous manner as:
   • where a past decision of the Tribunal has refused an earlier application but indicated a modified form of development or changes that might be acceptable, and the repeat appeal comprises a genuine attempt to address those issues, equity or fairness demands that considerable weight be given to the fact that the applicant has endeavoured to accommodate suggestions as to what would be appropriate. Appeals which seek to address the findings of past Tribunal decisions on previous applications for a site are sometimes referred to by those practicing in the planning jurisdiction as 'correcting repeat appeals' to distinguish these types of cases from the 'classic repeat appeal' which was the concern of the Board in Amoco.
   • irrespective of whether the appeal before it is a 'repeat appeal', the role of the Tribunal is still to consider the new application before it on its merits, even though in doing so it may give great weight to the previous decision of the Tribunal on the earlier application having regard to the principles established in the relevant case law on 'repeat appeals'.
3. While the principles developed in these 'repeat appeal' cases are not strictly applicable to an application under section 87A application, the decision of the Tribunal in The King David School v Stonnington CC & Ors (includes Summary) (Red Dot) [2011] VCAT 520 confirmed that some of these principles are still relevant, where at paragraph 16 and 17 it said:
   1. That said, there are some aspects of the principles that apply to 'repeat appeals' that are relevant to the Tribunal's consideration of a s 87A application to amend a permit, particularly only a very short time after it has issued. Public policy seeks to ensure that there is some finality to litigation. It is to the detriment of the planning system generally, and to the certainty of the permit review process, if permit applicants are able make repeated applications to the Tribunal on similar subject matter, as a basis for simply seeking to change an earlier Tribunal decision with which they do not agree. It undermines confidence in the planning system by affected parties (primarily responsible authorities and objectors) and the community at large, as well as imposing an additional cost burden on them...
   2. We consider that the flexibility afforded by s 87A should not be used to undermine the intent of the original Tribunal decision unless there is some sound justification for doing so. In short, s 87A should not be used as a de facto review of the original Tribunal decision in order to seek a more favourable outcome, or as an attempt to 'win back' development aspirations that were not supported in the original Tribunal decision. In our view, this would rarely (if ever) be "appropriate" for the purposes of s 87A, as it would undermine the finality and certainty of the review process. We therefore consider a degree of caution should be exercised by the Tribunal under s 87A in making substantive changes to key permit conditions upon which an original Tribunal decision was predicated - at least in the immediate period following the original Tribunal decision and in the absence of a change of circumstance or some other good reason that makes it "appropriate" to do so.
4. Council submitted that the application before us is at odds with the 2014 Tribunal decision and was another attempt by the applicant to 'get another "bite of the cherry" to increase the height of this development'[7]. It submitted that approving the application before us in light of the 2010 and 2014 Tribunal decisions, has the potential to undermine public confidence in planning and Tribunal processes. It also submitted that residents have a fair and legitimate expectation that additional storeys or height would not be approved. The respondents made similar submissions to us.
5. We consider these concerns of the Council and respondents about repeated applications in respect of the site to be similar to the concerns about 'repeat appeals' which have been expressly recognised by the decisions we have referred to above. As such, we consider that these concerns are appropriately addressed by us applying the principles which have been developed in those above decisions to ensure fairness in situations where repeated town planning applications have been made.
6. In our view, the principles relating to repeat applications that we have outlined above, make it clear that we are required to consider the application before us on its merits. They also make it clear that we are to give the decisions of the Tribunal on previous applications for the site great weight, unless there are significant changes in circumstances which warrant us coming to a different view. We consider these principles in relation to each of the 2010 and 2014 Tribunal decisions below.

1. The 2010 decision of the Tribunal decided to grant a planning permit for the proposal. It did not consider the merits of any development higher than eight storeys and so, in this respect, it contains no assessment of the building height which is currently before us to consider. Given this, the 2010 Tribunal decision makes no direct findings on the appropriateness of a taller central building for us to consider or give weight to.
2. However, to the extent that the 2010 Tribunal decision discusses broader matters which are also raised in the proceeding before us, its findings on these matters are potentially of relevance.
3. We have considered this decision in full, and make reference to it, as appropriate, in our discussions of the merits of the application set out below in our reasons.

1. The 2014 decision of the Tribunal considered a proposal for an additional two storeys to be constructed on the same rooftop that is to be utilised for the proposal. The key issue in that proceeding was, therefore, the appropriateness of this additional built form. Ultimately, the Tribunal considered the additional built form to be inappropriate.
2. The proposal considered by the Tribunal in 2014 is similar to that being considered by us, in that it proposes additional residential apartments within new upper levels on the central building on the site. However, the applicant submitted that the circumstances relating to the application before us are significantly different to those before the Tribunal in 2014 in a number of respects. These include:
   • changes to the relevant planning policy, including changes to the State Planning Policy Framework as a result of Plan Melbourne 2017-2050 (DEWLP, 2017);
   • changes to the built form context, including approvals for development on land to the west of the site; and
   • a significant redesign of the proposal which reduce its scale and mass, and alters its appearance.
3. We agree with the applicant that the facts before us differ in significant respects to those before the Tribunal in 2014. In particular, having considered the plans before us and the plans before the Tribunal in 2014, we find that the two proposals differ in substantial respects including:
   • the proposal now seeks an additional one, rather than two storeys; and
   • the design of the proposal is significantly altered, including the proposed roof form.
4. These differences between the two proposals, together with the time which has elapsed since the 2014 Tribunal decision and the changes which have occurred to the planning and built form context during that period, allay any concern that we may have had that the application before us is seeking a 'defacto review' of the 2014 Tribunal decision or that the application is in the nature of a 'classic repeat appeal' or 'another bite of the cherry'.
5. That said, we consider the 2014 Tribunal decision to remain highly relevant to our determination of the matter. In our reasons below, we discuss the details of the 2014 Tribunal decision in more detail, together with the implications that changes to the proposal and to the policy and built form context since the time of the 2014 Tribunal decision, as they relate to the key issues before us.

IS THE PROPOSED ADDITIONAL STOREY AN APPROPRIATE RESPONSE TO THE BUILT FORM AND POLICY CONTEXT?

1. The site is located on the south side of Bay Road, around 2 km east of the Sandringham activity centre and train station and 2.4 km west of the Southland shopping centre and train station. It is serviced by buses along Bay Road which provide connection to the Sandringham and Southland. It is also serviced by a local neighbourhood activity centres around 400 metres to the west, as well as the IGA X-Press located at the ground floor of the central building on-site.
2. The site and its surrounds have, since the 2010 and 2014 Tribunal decisions, been the subject of redevelopment activity. In addition to the significant residential development which has occurred on the site, there is now a four-storey mixed use development at No. 218 Bay Road, adjoining the west of the site. Also, a planning permit has been issued at the direction of the Tribunal allowing a mixed use development comprising three buildings ranging from six to eight storeys on Nos. 212- 216 Bay Road, also to the west of the site.[8]
3. Immediately adjoining the site:
   • To the east, is the Bay Road Heathland Sanctuary which is a vegetated reserve, open to the public at specified times.
   • To the west, is No. 218 Bay Road, which, as outlined above, is developed with a mixed use, four storey development. The development comprises office space and around 112 apartments.
   • To the south is Sandringham Secondary College and its associated playing fields.
   • To the north, on the other side of Bay Road, directly opposite the central and western building, is a mix of low scale light industrial/commercial development. East of this, opposite the eastern building partly constructed on the site, are conventional residential dwellings.

1. The site is within a Mixed Use Zone (MUZ) under the Bayside Planning Scheme (scheme). The purposes of the MUZ are to:
   • To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
   • To provide for a range of residential, commercial, industrial and other uses which complement the mixed-use function of the locality.
   • To provide for housing at higher densities.
   • To encourage development that responds to the existing or preferred neighbourhood character of the area.
   • To facilitate the use, development and redevelopment of land in accordance with the objectives specified in a schedule to this zone.
2. There are no objectives specified in the schedule to the MUZ.
3. A permit is required under the MUZ for the development of dwellings on common property.
4. The MUZ provides that the requirements of clause 58 apply to apartment developments of more than five storeys. However, this clause does not apply to the application before us for the reasons outlined in detail by the Tribunal in W Property Group Pty Ltd v Boroondara CC [2017] VCAT 740.
5. While there is the ability for the schedule to the MUZ to set a maximum building height, this has not been taken up by the schedule.

1. A Special Building Overlay (SBO) applies only to the north-western corner of the site. This is not the part of the site on which the additional apartments that we are considering are proposed. This means that no planning permit is required under the SBO for the amendment before us.
2. An Environmental Audit Overlay applies over the whole of the site and requires certain confirmation of the environmental condition of the land to be in place prior to the use of the land for residential purposes. As the site has already commenced use for residential purposes, these requirements do not apply to the application before us.
3. A Development Contribution Plan Overlay also applies to the site and requires certain conditions to be imposed on permits. As the requirements of this overlay are relevant to permit conditions, we discuss it in more detail in the part of our decision which discusses permit conditions.

1. There are a range of State and local policies which are relevant to the application before us. Many of these policies provide support for the housing growth in appropriate locations.
2. However, policy support for housing growth is not unfettered, with other provisions of the scheme setting out policies which seek to provide further guidance to the location and form of housing growth. These include the following policies, to which Council particularly drew our attention:
   • Clause 21.02, which includes a "Residential Strategic Framework Plan" that shows the site as being located in an area designated for "Minimal Residential Growth".
   • Clause 21.03, which includes a strategy that suggests that new medium density housing should be directed to major activity centres, residential opportunity areas.
   • Clause 21.06, which sets out local policies on built environment and heritage. It includes an overview of character and identity of the municipality which records its "low rise residential suburbs". It also includes objectives and strategies in respect of residential areas, including objectives which seek to achieve quality design outcomes which make a positive contribution to the character of residential areas.
   • Clause 21.11-9, which relates to the Bayside Business Employment Area. Map 1 of this clause includes the site within this Area. The clause sets out a vision for this Area of a business precinct which is integrated seamlessly into the urban fabric of the municipality and includes a range of policies which seek to encourage business activities within the Area. It provides that residential development within the Area should be discouraged from locating at ground level fronting Bay Road, in order to maintain the business/commercial focus of the area. It also sets out policies which seek to generally guide built form, and also, to protect the flora and fauna values of the Bay Road Heathland Reserve which abuts the eastern boundary of the site.
   • Clause 22.04, which builds on clause 21.11-9 and provides further policy guidance on development within the Bayside Business Employment Area, including the site. In addition to setting out general policies for the Area, it includes policies which are specific to the small area of Mixed Use Zone land on the south side of Bay Road and west of the Heathland Reserve, which includes the site. These policies provide support for a more intensive development, for residential development at upper levels in areas that will avoid conflict with other uses, and for a height limit of 14 metres.
3. We were advised by Council that Amendment C150 seeks to implement changes to the local policies of the scheme to implement the recommendations of Council's Bayside, Retail, Commercial and Employment Strategy (August 2016). This will include changes to all of the clauses referred to above. However, Council informed us that none of the changes proposed by Amendment C150 were material to the application before us. For example, only minor wording changes were proposed to the policies of clause 22.04 which relate to the Mixed Use Zone part of the Bayside Business Employment Area which includes the site. While a version of the proposed new clause 22.04 provided to us by Council included a new line which stated that the preferred height limits set out in clause 22.04 were only to be varied in 'exceptional' circumstances, we were advised by Council that it was no longer seeking the inclusion of these words within clause 22.04.

1. The key area in which the proposal departs from relevant planning policies is its height.
2. The current height of the central building on the site is around 27 metres (not including plant and lift/stairwell overruns).
3. The proposal will add a further level onto this central building, resulting in a total building height of around 29.5 metres. This is well beyond the preferred height limit of 14 metres specified by clause 22.04 of the scheme.
4. In both the 2010 and the 2014 Tribunal decisions, the Tribunal found that the height of the existing central building, at six and eight storeys, was an appropriate departure from the preferred height limit in clause 22.04. It considered the central building would be viewed as a "relatively unremarkable variation" from the basic four and five storey building height surrounding it.
5. However, it was primarily the additional height of the proposal before the Tribunal in 2014 which led to its refusal of an additional two storeys being developed on top of the central building. The additional two storeys would have provided an additional 12 apartments and resulted in a building height of around 33.3-34.4 metres.
6. In refusing to approve those additional storeys, the Tribunal acknowledged that given the preferred height of 14 metres, there must be a point at which "the height of the building becomes unacceptable having regard to the strategic purpose of the preferred height limit." [9]
7. In the 2014 Tribunal decision, the Tribunal considered the two additional storeys would render the existing eight storey portion of the central building a distinctly different building element, which stood out from the four and five storey buildings which are to emerge as a consequence of the 14 metre height limit in clause 22.04.
8. The 2014 Tribunal decision also expressed concerns about the design of the proposed two-storey addition proposed in 2014. The basic design of the proposal was described by the Tribunal as a "rectangular box shape, with an angled shaped roof in both plan and elevation". The roof was in a butterfly shape, which the Tribunal found to be unnecessary and not visually recessive. The Tribunal also expressed concerns that the proposed additional levels were too large and did not respond well enough to the articulation or stepped design to be a successful addition to the existing building.
9. Ultimately, the Tribunal found the proposed two-storey extension would

...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.[10]

1. The question now before us is whether the proposed single storey addition will similarly cause the existing central building to stand out in a manner which results in an inappropriate departure from the preferred height limit.
2. Having regard to the design of the proposal before us, the provisions of the current planning scheme and other development which has occurred in the area since 2014, we do not consider the proposal before us to be an inappropriate departure.
3. Rather, we agree with the expert evidence of Mr D'Amico that the additional storey will be appropriate, as:
   • the single storey addition will be a much more recessive element of the overall built form, compared with the proposal considered by the Tribunal in 2014. The simple flat roof design, the smaller footprint and the greater setbacks of the proposal before us, together result in a design response that is a much more successful and discrete addition to the existing built form, compared with the 2014 proposal;
   • from within the site, the additional level will be barely noticeable, given that it is elevated well above all vantage points and is set back from the edge of the building;
   • from Bay Road, the additional level will also be barely noticeable, given it is located toward the rear of the site, well away from the Bay Road frontage;
   • from the Heathland Reserve to the east of the site, the additional level will also be difficult to discern, given that it is located centrally within the site, there is a five storey building between it and the Reserve and views to the site from the Reserve are somewhat obscured by the vegetation within the Reserve;
   • while the additional level will be more visible from the rear of the site, we agree with and adopt the findings of the Tribunal in 2014, that the college and its playing field which immediately abuts the rear boundary of the site are not sensitive viewpoints. From further afield, along Holloway Road, the views of the proposal are distant and only form a small portion of the overall viewshed. Given this, we do not consider the addition of a single, recessive, storey onto the rear of the existing central building will make any discernible change to how the building is perceived from vantage points along Holloway Road or to impact on the low rise character of the residential area along Holloway Road. From this vantage point, the existing lift overrun of the central building is already quite apparent. The proposed additional storey will not increase the height of the building beyond this lift overrun. While it will be wider than the current lift overrun, in our view, this additional mass is mitigated by the improved architectural design and finish of the proposal which we consider will soften the top of the built form and reduce the extent of visible rooftop plant; and
   • it provides additional housing on a site which is identified in the scheme by the detailed local policies of clauses 21.11-9 and 22.04, as being appropriate for a more intensive form of development. While the site is also shown on the higher level 'Residential Strategic Framework Plan' contained in clause 21.02 as being within an area designated for 'minimal residential growth', we accept and agree with the evidence of Mr D'Amico that it is appropriate in this instance to give greater weight to the policies set out in clauses 21.11-9 and 22.04. This is because these policies seek to provide quite detailed policy guidance for the site and others in its immediate vicinity, while the Framework Plan is a higher level plan which seeks to provide broader guidance across the whole of the municipality.

WILL THE PROPOSED ADDITIONAL STOREY GIVE RISE TO UNACCEPTABLE AMENITY IMPACTS TO THIRD PARTIES?

1. Particular concerns were raised by either the Council or the respondents about the following amenity impacts which they say will arise as a result of the proposal:
   • impacts arising from the construction of the proposal
   • traffic and car parking impacts
   • visual amenity impacts
   • noise
   • overlooking
2. For the reasons outlined below, we do not consider any of these issues to give rise to unreasonable amenity impacts which warrant our refusal of the application. Rather, having considered these matters as well as other potential amenity impacts (such as the potential for increased shadowing of the other buildings within the site), we consider the proposal to be appropriately designed so as to mitigate unreasonable impacts to third parties.

1. The respondents submitted that their amenity will be compromised during the construction of the additional level. This was acknowledged by the applicant and its town planning expert, Mr D'Amico. Mr D'Amico gave evidence to the effect that the relatively unusual circumstance of constructing an additional level on an occupied apartment building did give rise to potential amenity impacts, particularly noise, during construction which he considered relevant town planning considerations.
2. Mr D'Amico suggested that these impacts could be appropriately managed by permit condition and we agree. We have included conditions on the Permit which require a construction management plan to be approved by Council for the works. In the particular circumstances of this case, and having regard to the submissions from the applicant as to what it considers to be workable, we have also included a condition requiring the construction management plan to limit construction hours to 8am - 5pm Monday - Friday and 9am - 5pm Saturday. We consider these hours to strike an appropriate balance in this case between allowing the development to progress at a reasonable rate, while providing some respite for residents of the level below during the construction period, from noise and construction impact.

1. There is an existing surplus of car parking spaces within the basement of the central building. It is proposed to use six of these spaces for the additional three apartments, each of which has three bedrooms.
2. The proposed car parking provision of two car parking spaces for each apartment accords with the car parking requirements of clause 52.06 of the scheme. Given this, we are satisfied that the proposal provides appropriate on-site car parking.
3. While the respondents also suggested that traffic from the proposed apartments would give rise to congestion, particularly within the accessways around the site, we are not persuaded that the additional traffic which will arise as a result of three additional apartments being developed on this large site, will result in any real change to traffic conditions, both within the site and the wider road network.

1. As we have already explained, the proposal will be barely noticeable from vantage points within the site. It will be at its most visible from upper floor apartments within the eastern and western buildings on the site that look toward the part of the central building on which the proposal is to be developed. However, even from these apartments, we do not consider it to give rise to unreasonable visual bulk, given the distance between the apartment buildings and the recessive nature of the design.
2. From vantage points outside of the site, we have already explained that the distance between the site and sensitive uses is significant and from many vantage points views of the proposal will be obscured. We consider these factors to be sufficient to ensure that unreasonable visual bulk impacts do not arise.

1. The Apartment Design Guidelines for Victoria (2017) provide guidance on measures which are appropriate to be adopted in order to reduce overlooking into habitable room windows or private open spaces.
2. We are satisfied that the proposal is generally consistent with those guidelines and appropriately mitigates overlooking impacts, with the exception of the potential for overlooking from the southern outdoor terrace/balcony of one of the proposed units, down to an existing balcony on the level below. In order to protect the privacy of users of this existing 8th storey balcony, we have included a permit condition which requires access to the edge of the proposed terrace to be limited via a planter box, so as to prevent downward views to the balcony.

1. The respondents were particularly concerned about the noise associated with use of the apartments travelling through the floor to their apartments below.
2. We are satisfied that the proposal has appropriately mitigated potential noise impacts for future and existing residences in accordance with planning policy, including the Apartment Design Guidelines for Victoria (2017). As such, we do not consider there to be unacceptable noise impacts arising from the design of the proposal. The interface between the proposed apartments and the existing 8th storey apartments is a residential interface which we do not consider to give rise to unacceptable noise impacts, subject to standard noise attenuation measures (which may already be sufficient owing to the thickness of the rooftop slab). Council has proposed a permit condition requiring these noise attenuation measures be indicated on the plans which was not suggested to be deleted by the applicant in its further submission on conditions. We have therefore included this as a permit condition.

WILL THE PROPOSED ADDITIONAL STOREY PROVIDE ACCEPTABLE INTERNAL AMENITY FOR ITS FUTURE OCCUPANTS?

1. While no party raised any significant concerns about the internal amenity of the dwellings, we have nonetheless considered this and find the internal amenity of the additional apartments to be appropriate.
2. While transitional provisions mean that the additional apartments do not need to comply with clause 58 of the scheme, we accept the evidence of Mr D'Amico that they would perform well against the measures of clause 58 if it did apply and are appropriate, having regard to clause 15 and the Apartment Design Guidelines for Victoria (2017). In particular, we consider the apartments to provide generous open plan living areas, appropriate access to daylight to all rooms, adequate cross ventilation, and good connectivity between internal living spaces and generously sized balconies.

ARE THE OTHER CONCERNS OF THE RESPONDENTS RELEVANT TO OUR CONSIDERATION?

1. The respondents raised a range of other concerns about the proposal and also about procedural matters. We have considered all of these matters and concluded that, to the extent that those matters are relevant, none of them warrant us deciding to refuse to grant the application before us.
2. While we do not endeavour to individually address each of these concerns in our reasons, we note that:
   • many of these other concerns, such as the impact of the proposal on property values, have been consistently found by this Tribunal to not be a relevant planning consideration.
   • our views as to concerns raised by the respondents about procedural matters, including the effectiveness of the notice given of the application, were provided orally at the hearing, with some of these also summarised earlier in our reasons.
   • concerns about the applicant's rights to use common property to access and construct the building are not relevant to the planning merits of the application, this is a matter between the applicant and the owners corporation.
   • there was a substantial portion of the hearing occupied with concerns relating to the structural integrity of the existing building, and, to the fairness of allowing the application given the circumstances surrounding the respondent's purchase of their apartments. Because of this, we have discussed each of these concerns individually below.

Structural integrity of the existing building

1. Mr Docking says that he feels tremors from within the building. He is concerned that this is an indicator of structural problems with the existing building. He considers cracking and movement evident in the basement may also indicate structural problems. He says that we should not approve a further storey to be developed on the existing building, in circumstances where it may not have the structural capacity to support it.
2. Mr Docking sought to substantiate his concerns by asking Dr Hoult to provide expert evidence about the structural integrity of the existing building and the tremors observed by Mr Docking. We note that while Dr Hoult gave evidence that tremors and cracking in the basement could indicate structural issues, he acknowledged that they may not. Dr Hoult had not himself carried out any investigation which indicated that there were any structural issues with the existing building.
3. We have no doubt that Mr Docking's concerns about the structural integrity of the existing building are genuinely held.
4. However, quite simply, these are not matters which are relevant to our decision in this instance.
5. We are considering whether to issue a planning permit under the Planning and Environment Act 1987. A planning permit is not the only approval that will need to be obtained for the proposal before it can be constructed. Another permit that will need to be obtained is a building permit issued under the Building Act 1993. The focus of the building permit process is squarely on structural matters, including the capacity of the existing building structure to support any additional development that we may permit.
6. While we need to have regard to a wide range of matters in exercising our discretion as to whether to issue a planning permit for the proposal, the matters to which we can properly have regard and give weight to in reaching our decision is not limitless. We consider that Mr Docking's concerns about the structural integrity of the existing building are matters which are properly left to be resolved via the building permit process which will follow the grant of an amended planning permit for the proposal. If the end result of that process is that the existing building cannot support the proposal, then we would expect the building permit process to prevent its construction. Similarly, the question of any structural defects with the existing building are matters which are the focus of building regulation.

1. Various submissions were made by the parties as to the basis upon which the respondents decided to purchase their apartments. In essence, we understood the respondents to contend that they purchased their apartments on the understanding that they would be the top floor apartments, that the top floor nature of those apartments is of importance to them and that had they known that another level was potentially to be developed above them, they would not have purchased their apartment. The applicant made it known to us, as a matter of record, that it contested any suggestion that the respondents' understanding was contributed to by it, but quite rightly in our view given that we were considering a town planning application, did not go into significant detail on the matter.
2. We accept that any person who purchases a property based on an understanding of what is likely to be built around them in the future and who then finds their understanding to have been misplaced, may consider the situation unfair. This is particularly so if the person feels that they arrived at their understanding of what was to be built around them after what they considered to be appropriate due diligence.
3. Fairness in commercial transactions is something which is sought to be achieved by a range of laws which operate separately to the town planning framework which we are considering.
4. However, fairness is something which is also sought to be achieved by the regulatory framework relating to town planning. This is made clear by section 4 of the Planning and Environment Act 1987 which includes the following as one objective of planning in Victoria:

to provide for the fair, orderly, economic and sustainable use, and development of land.

1. In our view, fairness in a town planning context is achieved by us carrying out our town planning assessment of the proposal, as we have done, based on the overall guidance of the suite of applicable laws and regulations, including the Bayside Planning Scheme.
2. Fairness is not achieved by us giving any weight in our assessment, to what the respondents alone may have understood about the future development potential of the roof above them at the time they purchased their apartments.

1. The Council circulated without prejudice permit conditions prior to the hearing and these were discussed at the end of the hearing. Complications about the way in which to resolve existing requirements of condition 1 which may have already been included on the plans lead to us providing leave for further submissions about the without prejudice conditions, which we have now received and considered. We have generally adopted the version of Condition 1 provided to us by the applicant, noting that Council did not provide any reply which indicated that it contested this version.
2. At the hearing, submissions were also made by all parties as to additional conditions that we should also include in the permit if we decided to allow the additional storey. We have included those which we consider to be consistent with our above findings, including conditions relating to construction management and overlooking.

1. We have also included a condition requiring a development contribution, in accordance with the requirements of the Development Contribution Plan Overlay, Schedule 1 (DCPO1). The DCPO1 requires "a permit granted" to include certain conditions relating to development contributions.
2. At the hearing, the applicant made a brief submission to the effect that it did not consider the requirements of the DCPO1 to apply to an application to amend an existing planning permit. We gave Council leave to provide a submission after the hearing in response. It has now done so in a short letter. In that letter, Council acknowledged that the DCPO1 was not in force at the time that the Permit was issued. However, it now is in force with no transitional provisions.
3. Section 90A and 84B(2) of the Planning and Environment Act 1987 require us to have regard to a range of matters in determining the application before us as if it was an application for review. These matters include DCPO1, as it forms part of the scheme. In this context, we consider that the requirements of DCPO1 to include certain conditions on 'a permit granted', include a requirement to include those conditions in respect of development allowed by any amendment to a permit. Furthermore, we consider it to be inconsistent with the intent of the DCPO1 to read it in a way that did not require development contributions to be made for additional dwellings authorised via an amendment to a permit, rather than in the original grant of the Permit.

1. For the reasons given above, we have decided to grant the application under section 87A of the Planning and Environment Act 1987 to amend the permit which was issued at the direction of the Tribunal. An amended permit is granted subject to conditions.

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 (café), 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

1. Before the development of level 8 of the central building 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 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 (as at the date the permit is amended pursuant to the Tribunal Order in proceeding no. P2524/2017), but modified to show the changes shown on the following plans: TP111 Rev H; TP112 Rev E; TP113 Rev A; TP200-1 Rev P; TP200-2 Rev P; TP202-1 Rev J; TP202-2 Rev J; TP203 Rev D, all prepared by Watson Young Architects Pty Ltd and amended to show:
   • (a) Water Sensitive Urban Design features in accordance with the requirements of Condition 12 of this permit.
   • (b) 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;
   • (c) A minimum of 6 cubic metres of storage must be provided in the basement for each dwelling/tenancy.
   • (d) Landscape plan in accordance with condition 3 of this permit.
   • (e) The provision of underground services and the provision of an on-site substation.
   • (f) Any proposed staging of the development including a detailed works programme.
   • (g) All building heights to be shown on the plans in metres above Natural Ground Level.
   • (h) Relevant plan related outcomes arising from Melbourne Water and VicRoads conditions;
   • (i) 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.
   • (j) 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.
   • (k) 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.
   • (l) 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.
   • (m) Provision of noise attenuation measures to ensure that the new dwellings proposed (on level 8 of the building) do not unreasonably compromise the amenity of the lower level dwellings of the building.
   • (n) An updated construction management plan in accordance with Condition 9
   • (o) An updated Traffic and Parking Management Plan in accordance with condition 10
   • (p) An inward planter box, at balustrade height, located along the southern edge of the balcony to the southern apartment on level 8, which prevents overlooking from the level 8 balcony down to the level 7 balcony below.
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.
   • (g) Provision of a canopy tree to the satisfaction of the Responsible Authority in each private garden area for the eastern facing ground floor dwellings in stage 3.
   • (h) Details of the fencing on the eastern side of the private garden areas of the easternmost building adjacent to the common walkway to the satisfaction of the Responsible Authority. The fencing must be 25% transparent for each lot.
   • (i) Details of the fencing on the eastern boundary of the site adjacent to the heathland reserve to the satisfaction of the Responsible Authority. The fencing must have a high degree of openness.
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:
     1. 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;
     2. 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;
     3. Bicycle parking and facilities available on the land;
     4. Local walking paths and networks to key destinations;
     5. Monitoring and review; and
     6. 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.
   • (j) The impact that the proposed works associated with VCAT Reference P2524/2017 will have on common areas (including those internal and external to the building) and on existing apartments within the site. The measures to mitigate these impacts must include:
     1. hours of construction to be limited to 8am to 5pm Monday to Friday, and 9am to 5pm Saturday, with no construction to occur on Sundays.

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.
   • (d) The location of the car spaces associated with the dwellings approved within VCAT Reference P2524/2017 to be appropriately located to ensure convenient access between the dwellings and car spaces.
   • (e) The provision of car parking associated with the dwellings approved within VCAT Reference P2524/2017 to be in accordance with Clause 52.06 (car parking) of the Bayside Planning Scheme.

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 14 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
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. Plans for the construction of the outfall drain must be approved by the Responsible Authority in writing prior to the commencement of any works.
9. 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.
10. 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.

1. An amended Landscape plan must be submitted and approved within 90 days from the date Amendment 8 of this permit is issued. The amended Landscape Plan must be generally in accordance with Condition 3 but updated to show changes approved under Amendment 8 of this permit.
2. An amended Traffic and Parking Management Plan must be submitted and approved within 90 days from the date Amendment 8 of this permit is issued. The Traffic and Parking Management Plan must be generally in accordance with Condition 10 but updated to show changes approved under Amendment 8 of this permit.

1. Prior to the endorsement of the plan/s approved within VCAT Reference P2524/2017 required under Condition 1 of this permit, the permit holder must pay a drainage levy for three dwellings in accordance with the amount specified under the Bayside Drainage Development Contributions Plan (in accordance with the amendments approved). The levy amount payable will be adjusted to include the Building Price Index applicable at the time of payment.
2. The levy payment shall be submitted to Council with the Bayside Drainage Development Levy Charge Sheet and it must include the Building Price Index applicable at the time of payment.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

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

[3] Blueprint Developments (Vic) Pty Ltd v Bayside CC [2014] VCAT 1251.

[4] (1983) 1 PABR 166 at 169.

[5] See eg Reichert v Banyule City Council (1996) VICCAT 44.

[6] Sprut Pty Ltd v Stonnington CC [2012] VCAT 1675

[7] Paragraph 23 of the submissions of Council.

[8] Auyin Property Development Pty Ltd v Bayside City Council (VCAT Ref No. P2385/2016, Order dated 9 May 2017).

[9] Blueprint Developments (Vic) Pty Ltd v Bayside CC [2014] VCAT 1251, at paragraph 34