GFM Investment Group Pty Limited in its capacity as trustee of the GFM BTS Trust Subtrust No.1

GFM Investment Group Pty Limited in its capacity as trustee of the GFM BTS Trust Subtrust No.1

671 Chapel Street & Part 1 Forrest Hill SOUTH YARRA VIC 3141

10, 11, 12, 13, 16 & 17 October 2023; 17 & 21 November 2023

Box v Stonnington CC [2024] VCAT 149

1. Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the responsible authority's notice of decision dated 15 December 2022 is amended. For the 'Address of the Land' substitute:

671 Chapel Street plus part 1 Forrest Hill, South Yarra

1. I declare that the permissions granted in the responsible authority's notice of decision dated 15 December 2022 must be characterised as:
   • Permission to use for dwellings, office and a community facility under clause 37.08-2 of the Stonnington Planning Scheme.
   • Permission to construct a building or to construct or carry out works under clauses 37.08-5 and 37.08-6 of the Stonnington Planning Scheme.
   • Permission to create or alter access to a road in the Transport Zone 2 under clause 52.29-2 of the Stonnington Planning Scheme.
   • Permission to reduce the statutory car parking requirements under clause 52.06-3 of the Stonnington Planning Scheme.

1. I declare that the Tribunal does not have jurisdiction to review the grant of:
   • Permission to use for dwellings, office and a community facility under clause 37.08-2 of the Stonnington Planning Scheme.
   • Permission to create or alter access to a road in the Transport Zone 2 under clause 52.29-2 of the Stonnington Planning Scheme.

1. For the avoidance of doubt, the amendment of the permit application in order 2 of the orders dated 19 October 2023 does not apply to the grant of permissions referred to in order 3.

1. I declare the conditions under review in the grant of permission to use land for dwellings, office and a community facility are conditions 1(y), 10(d), 10(e) and 11(a) in the responsible authority's notice of decision dated 15 December 2022.
2. I declare the conditions under review in the grant of the three other permissions referred to in order 2 are the conditions 1(b), 1(d), 1(e), 1(w), 1(x), 1(z), 3(a) and 10(a) specified in the responsible authority's notice of decision dated 15 December 2022..

1. I declare the respondents in application P101/2023 are not parties in the review of the conditions referred to in order 5.

1. The decision of the responsible authority dated 15 December 2022 to grant the following permissions is varied:
   • Permission to use for dwellings, office and a community facility under clause 37.08-2 of the Stonnington Planning Scheme.
   • Permission to create or alter access to a road in the Transport Zone 2 under clause 52.29 of the Stonnington Planning Scheme.

1. The Tribunal directs that permit 0321/22 granting the permissions referred to in order 8 must contain the conditions set out in the notice of decision to grant a permit issued by the responsible authority on 15 December 2022 with the following modifications:
   • Conditions 1(y) and 11(a) are deleted.

1. For consistency with order 9 and the reasons for these orders, for what the permit allows in the permit issued in accordance with order 9, substitute:

Use for dwellings, office and a community facility under clause 37.08-2 of the Stonnington Planning Scheme

1. The responsible authority must issue a modified planning permit in accordance with order 9 and 10.

1. Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the application is amended. For the description of the land in section 14 of the application form, substitute:

671 Chapel Street plus part 1 Forrest Hill, South Yarra

1. In accordance with section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the grounds relied on by the applicant and respondents as they relate to the permissions referred to in order 8 are struck out because they are misconceived.

1. The decision of the responsible authority dated 15 December 2022 to grant the following permissions is varied:
   • Permission to construct a building or to construct or carry out works under clauses 37.08-5 and 37.08-6 of the Stonnington Planning Scheme.
   • Permission to reduce the statutory car parking requirements under clause 52.06-3 of the Stonnington Planning Scheme.

1. In application 0321/22 a permit is granted and directed to be issued for the land at 671 Chapel Street plus part 1 Forrest Hill, South Yarra in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:
   • Construction of a building and construction or carrying out works under clauses 37.08-5 and 37.08-6 of the Stonnington Planning Scheme.
   • Reduction of car parking requirements under clause 52.06-3 of the Stonnington Planning Scheme.

For Dianna Box, Anja Wiersing, Charles Williams & Rebecca Jones

Tiphanie Acreman of Counsel, instructed by Gadens Lawyers

• Alistair Campbell, urban designer, Hansen Partnership Pty Ltd

For GFM Investment Group Pty Limited in its capacity as trustee of the GFM BTS Trust Subtrust No.1

Nick Tweedie SC and Robert Forrester of Counsel, instructed by Rigby Cooke Lawyers

• Carolynne Baker, heritage consultant, Urbis Pty Ltd
• Jan Talacko, Ark Resources Pty Ltd
• Amanda Roberts, urban designer, LAT studios
• John Kiriakidis, traffic engineer, Stantec Australia Pty Ltd
• Amanda Ring, town planner, Urban Planning Collective Pty Ltd
• Mark O'Dwyer, architect and urban designer, H2O Architects Pty Ltd

They tendered a statement of evidence dated 22 September 2023 regarding visual amenity prepared by Christopher Goss of Orbit Pty Ltd. Neither the other parties nor the Tribunal required attendance for examination.

At the start of the hearing on 10 October 2023, Julian Anderson, architect, Bates Smart Pty Ltd gave a 'design presentation' of the amended plans in the permit application.

As stated in these reasons, GFM withdrew the filed statement of lay evidence prepared by Anthony Mordini dated 21 September 2023.

Rebecca Jones (10, 11, 12, 13, 16 & 17 October 2023; 17 November 2023); In person (21 November 2023)

No appearance (10, 11 & 13 October 2023; 17 & 21 November 2023); In person (12, 16 & 17 October 2023)

Salim Bahloul (10 & 11 October 2023 & part of 17 October 2023); In person (12, 13 & 16 October 2023 & part of 17 October 2023; 17 & 21 November 2023)

Application under section 82 of the Planning and Environment Act 1987 (Vic) - to review the decision to grant a permit

Application under section 80 of the Planning and Environment Act 1987 (Vic) - to review conditions 1(b), 1(d), 1(e), 1(w), 1(x), 1(y), 1(z), 3(a), 10(a), 10(d), 10(e) & 11(a) contained in the notice of decision to grant a permit

Activity Centre Zone Schedule 1 (Chapel Street Activity Centre) ('ACZ1')

Development Contributions Plan Overlay Schedule 1 ('DCPO1')

Clause 37.08-2 (use in ACZ1 for office and dwellings if ground floor frontage exceeds two metres)

Clause 37.08-2 (use in ACZ1 for a 'community facility)

Clause 37.08-5 (construction of a building and construction or carrying out of works in ACZ1)

Clause 37.08-6 (construction of a building and construction or carrying out of works in ACZ1 which are 'not in accordance with any design and development requirement in the schedule unless the schedule to this zone specifies otherwise)

Clause 52.06-3 (to reduce the statutory requirement of 178 car parking spaces for 130 dwellings to 161 and to reduce the statutory requirement of 46 car parking spaces for office and food and drink premises to 4)

Clause 52.29-2 (to create or alter access to a road in Transport Zone 2) (being Chapel Street)

Clauses 11, 15, 16, 17, 18, 19, 37.08, 45.03, 45.06, 52.06, 52.29, 52.34, 53.18, 58, 65 and 71.02

The subject land is on the west side of Chapel Street, about 100 metres south of Alexandra Avenue. It comprises 671 Chapel Street and (abutting to its north) part of 1 Forrest Hill.

Source: Alistair Campbell, statement of evidence, p 3

671 Chapel Street is largely rectangular in shape with a frontage of 38.4 metres, a depth of 53.9 metres and an area of 2,070 square metres. Forrest Hill is the address of the land occupied by Melbourne High School ('MHS'). This land is located to the rear of 671 Chapel Street, which extends from Alexandra Avenue (to the north) to Yarra Street (to the west) to Claremont Street (to the southwest) and to Forrest Hill/Daly Street (to the southeast) ('the MHS site').

1 Forrest Hill is the address of a four-storey 21-metre maximum height building used primarily as a MHS sports centre ('the gymnasium'). It fronts Chapel Street and abuts 671 Chapel Street to its north. It is accessed from both Chapel Street and the MHS site to the rear.

The part of 1 Forrest Hill that is part of the subject land is an 'L' shaped ground-level piece at the front of the gymnasium facing Chapel Street and along the gymnasium's south boundary ('part 1 Forrest Hill'). This part has dimensions of about 3 metres depth and about 46 metres wide (fronting Chapel Street) and between about 3.4 metres and 4.4 metres wide and 53.9 metres long (along the southern boundary of the gymnasium).

671 Chapel Street is currently developed with a two-storey commercial building. Part 1 Forrest Hill is an open paved area containing a few ground level car parking spaces (facing Chapel Street) and an open paved area providing emergency access between the MHS site and Chapel Street. It provides pedestrian access to existing doors and external stairs along the gymnasium southern boundary.

In the past, 671 Chapel Street was excavated to create a generally flat site for the existing building. It now falls a relatively gentle 1.6 metres towards the northwest corner. At the northwest corner of 671 Chapel Street the land is about 6.7 metres below a steep embankment located on the MHS site.

Abutting the land to the south at 669 Chapel Street is a recently-built four-storey building occupied by the Centre for Higher Education Studies ('CHES') and used by MHS (and other) students. It is on a narrower site (about 18 metres wide) and it is built to both its north side boundary (that abuts 671 Chapel Street) and south side boundary (abutting 663-665 Chapel Street).

671 Chapel Street is encumbered by two easements - a 2.29 metres wide drainage and sewerage easement along the north boundary and a 1.83 metres wide drainage easement along the western boundary.

The subject land is located in the Forrest Hill precinct of the Chapel Street Activity Centre which is part of the Prahran/South Yarra Major Activity Centre.

The MHS site (ie neither the subject land, nor the gymnasium and CHES) is listed on the Victorian Heritage Register (VHR H1636) and is included in Heritage Overlay HO2.

On 15 November 2023 I inspected the subject land from the public realm in Chapel Street, Alexandra Avenue, Yarra Street and Claremont Street unaccompanied by the parties. This inspection included views from each of seven viewing points in photomontages prepared by Mr Goss. I had planned to conduct that inspection shortly after the hearing on 17 October 2023 but I then delayed that inspection pending determination of Dr Kirkham's reconstitution application.

On the final hearing day, I told the parties that I would be assisted by inspecting the subject land from MHS (especially in the vicinity of the boundary with the subject land and including the CHES building) and from apartment 701 at 663-665 Chapel Street, which directly faces the subject land across and above the CHES roof. The parties agreed these inspections could be unaccompanied, if the relevant representatives providing access to MHS and apartment 701 observed the Tribunal's normal inspection protocols. Those undertakings were given and observed. Those inspections took place on 6 December 2023.

1. On 12 December 2022, Stonnington City Council ('the Council') determined an application lodged by GFM Investment Group Pty Limited in its capacity as trustee of the GFM BTS Trust Subtrust No.1 ('GFM') for permission under the Stonnington Planning Scheme ('the planning scheme') to construct a 22-storey mixed use building on the subject land.
2. The Council's officers recommended the Council grant a permit subject to conditions. The Council resolved to grant permission with changes to the conditions recommended by the officers ('the Council's decision'). The Council's decision was contained in a notice of decision issued under section 64 of the Planning and Environment Act 1987 (Vic) ('the PE Act') and dated 15 December 2022.[2]
3. I will not set out all the changes made by the Council to the conditions recommended by the officers, but will briefly mention two important changes that I will refer to later in these reasons.
4. The first change was an additional condition (condition 1(x)) that required amended plans showing a reduction in the maximum height of the building to 18 storeys (i.e. the removal of four storeys).
5. The second change was additional conditions (including conditions 1(y), 11(a), 11(b), 11(d)) the effect of which were that floor space at the rear of level 1 identified as 'community asset' be a 'community facility' to be managed by the Council in accordance with a management plan.
6. This proceeding involves two applications.
7. The first is lodged by Ms Box and three other people who objected to the Council against the grant of permission and they have applied to the Tribunal to review the Council's decision to grant permission ('the merits review').
8. The second is lodged by GFM and it has applied to review 12 conditions included in the Council's decision ('the conditions review').
9. Other persons who objected are respondents in one or both applications.
10. The proceeding has involved the issue of many orders, including those after hearings, to determine interlocutory matters and after a compulsory conference.[3]
11. In one of those hearings, GFM successfully applied to amend the permit application. The main part of the amendment was substituted plans showing a 20-storey building i.e. a reduction of two storeys from the plans on which the Council made its decision ('the decision plans'). I granted that application in an earlier hearing and the plans were substituted.[4]
12. In these reasons, I will refer to the development as shown in the substituted plans as 'the proposal'.

1. The main features of the proposal may be summarised as follows.
2. There are four basement levels containing 166 car parking spaces (162 for residents) and other facilities, accessed from a ramp at the rear of 671 Chapel Street from a circular driveway off Chapel Street, including 14 two-level stacker spaces at the topmost basement level (12 of which are EV charging spaces).
3. On the ground level there is retail space (272 square metres), commercial and residential lobbies, bicycle storage (for 116 residents and visitor bicycles), waste storage and a loading dock.
4. On level 1 there is shared residential amenities, including a gym, pool and meeting rooms. There is also what is identified as a 'community asset', with a floor area of 352 square metres.
5. On level 2, there are offices (1,246 square metres).
6. On levels 3 to 19, there are 130 apartments (82 one and two bedroom and 48 three bedroom).
7. The proposal has a maximum building height of 65.2 metres from Chapel Street,[5] plus 3.2 metres high roof top equipment.
8. There is a three-level podium that is 12.2 metres high at Chapel Street.[6] It is set back about three metres from Chapel Street, 6.32 metres from the northern boundary of 671 Chapel Street, 2.22 metres from the rear boundary, and zero metres from the southern boundary.
9. There is a 17-level tower above the podium in two cleaved rectilinear forms, separated by a recessed (or inset) east-west aligned passage. The northern form is set back between three metres and 5.9 metres from Chapel Street, a minimum of 8.3 metres from the gymnasium, and 7.45 metres (excluding balconies) from the rear boundary. The southern form is set back between six metres and 8.3 metres from Chapel Street, six metres from the south boundary, and between 4.8 metres and 7.5 metres from the rear boundary.
10. On level 19, there are two three-bedroom penthouse apartments with increased setbacks from Chapel Street in the northwest corner, from the north and south boundaries and from the rear boundary in the building's northern form.
11. The building design is contemporary and both the podium and tower façades have light warm colour masonry frames. The distinction between the podium and tower is reinforced by, in the podium, accentuation of the grid at every level and by textured finishes and, in the tower, by accentuation of the grid at every third level and by smooth finishes.
12. On part 1 Forrest Hill, there is a new path from Chapel Street to the MHS site along the south side of the gymnasium. There are improvements to Chapel Street in front of 671 Chapel Street and in front of part 1 Forrest Hill with new paving and street plantings.

1. It is necessary to first identify what permissions are required under the planning scheme for the proposal. This involves determining what is the subject land and characterising the use.

1. GFM's permit application identified the land (and what is commonly referred to as 'the planning unit') as 671 Chapel Street and part 1 Forrest Hill. This is confirmed by no less than the application documents, including the decision plans.
2. The Council fell into error when assessing the application in deciding part 1 Forrest Hill did not 'technically' (as it said) form part of the application. The Officer's report stated:

The [part 1 Forrest Hill] land is owned by the Department of Education and Training and forms part of a public school (MHS). The Planning Scheme is not binding on the use or development of land carried out by or on behalf of the Minister for Education.

1. Consistent with that error, the Council's decision only referred to 671 Chapel Street, even though the Council did not require the plans to be amended to delete or exclude works on part 1 Forrest Hill. It is clear the Council did not oppose the proposed works on part 1 Forrest Hill.
2. There are many Tribunal authorities on whether works on public land should be construed as being for or on behalf of the public authority that owns or manages the public land. It suffices to state that, even though the Minister for Education would need to separately authorise the works, the proposed works will be carried out by or on behalf of GFM, not the Minister. Accordingly, there is no reason why the subject land (or 'planning unit') in the Council's decision should exclude part 1 Forrest Hill.
3. The next question is whether permission is required under the planning scheme for the use or development of part 1 Forrest Hill.
4. No permission for use is required because the purpose of the proposed use of part 1 Forrest Hill is access to the MHS site west of the gymnasium (the southern portion of part 1 Forrest Hill) or access to the gymnasium (the Chapel Street portion of part 1 Forrest Hill). This is ancillary to the existing use of part 1 Forrest Hill and the MHS site for an 'education centre', so no use permission is required.
5. Permission for the works is required under the Activity Centre Zone (the ACZ).[7] The Council is the responsible authority for part 1 Forrest Hill.[8]
6. In a related submission made at the conclusion of the hearing, Dr Kirkman said 'MHS' (but did not clarify whether he was referring to the MHS site, 1 Forrest Hill or both) is Crown land and not within the municipal district of the Stonnington City Council for the 'purposes of planning'. This submission is wrong if it purports to claim the planning scheme does not apply to the MHS site or part 1 Forrest Hill.
7. I will amend the Council's decision to include part 1 Forrest Hill because it is clear the Council lawfully assessed the works for part 1 Forrest Hill as the responsible authority in deciding to grant permission and to issue the notice of decision.
8. The conditions review identifies the subject land as 671 Chapel Street plus part 1 Forrest Hill, but the merits review identifies the subject land as only 671 Chapel Street. As a housekeeping matter, I will amend the description of the land in the merits proceeding.
9. Ms Box and others (for simplicity, I will refer to them as 'Ms Box' in these reasons) also contend that the subject land should include, and the Council's decision does not currently include, the MHS site. As I describe in more detail later in these reasons, the proposed 'community asset' may be accessed from the MHS site across a 'removable deck' (that crosses the void in the ground floor rear setback below the deck) and through doors leading directly to the community asset.[9]
10. Ms Box contends permission is required to use and develop the MHS site for access to, and in conjunction with, the community asset.
11. Ms Box relies on Mr Merlo's plans showing planting, bench seating and 'concrete paving' on the MHS site near the rear of 671 Chapel Street to the west of the deck.
12. Ms Box also relies on images of an upgraded forecourt to the proposal on the MHS site, as shown in figure 1.

Figure 1: Entry to level 1 from MHS site. Source: Julian Anderson, 'design presentation', 'West Podium - Community Hub Entre - Artist's impression only', p 39.

1. The image in figure 1 faces east to the rear (west-facing) elevation of the proposal (both the podium and lower parts of the tower). The MHS site is in the foreground and includes the sub-station shown as a white structure on the right. The boundary of the subject land is about 2.2 metres in the front of the podium in this image. The pedestrian entry via an elevated deck is hard to discern but is located in the centre of the image. It is also unclear if the figure shows all the plantings in this location shown on Mr Merlo's landscaping plan.
2. Ms Box also relies on necessary demolition of a cyclone wire boundary fence along the rear boundary of 671 Chapel Street and its replacement with 1000 mm balustrading atop the existing retaining wall with a gap where the timber deck access is located.[10]
3. I do not agree with Ms Box's contentions. There is no change of use of the MHS site and therefore the need for use permission does not arise. Proposed pedestrian access to the subject land from the MHS site does not change the use of the MHS site. No permission under the planning scheme is required for the foreshadowed works on the MHS site. Most, if not all, these works will be necessary to provide a workable interface with the development from the MHS site.

1. I must characterise the 'community asset' to determine what permissions, if any, are required for that component of the application. The plans for the proposal show 352 square metres of floor space at the rear of level 1 as a 'community asset'.
2. GFM submits the 'community asset' is intended to be used by both MHS students and staff (and students from other schools as facilitated by MHS) and by the 'community'. It says MHS would be the 'primary' user because it is anticipated that use by others would be allowed when not being used by MHS, for example, outside school hours or outside school terms.
3. Ms Ring also added that her instructions were that:

[T]he Applicant proposes to explore opportunities [for the community asset to] be used by ... other educational, training providers and not-for-profit organisations consistent with the Department of Education & Training's Schools as Community Facilities - Policy Framework and Guidelines.

1. The community asset has three pedestrian access points. As stated, the first is from an elevated deck from the MHS site. The second is from Chapel Street via a path adjoining the vehicle entry/drop off zone that extends to a dedicated lift.[11] The third is an emergency exit (only) into the level 1 residential lobby and lifts down into Chapel Street.
2. The parties agree the 'community asset' is a separate use. I find it is a separate use having regard to its dimensions, the access arrangements (above) and its use primarily by persons not residing or working in, or otherwise attending, the proposed building.
3. The Council does not adopt GFM's language of a 'community asset' for reasons that are unclear. It adopts inconsistent and somewhat confusing language in describing the 'community asset'.
4. The Council's officers' report characterises the 'community asset' as an unspecified use for a 'community room', although it characterised it as an 'education centre' and 'place of assembly' (as those uses are defined) for the purposes of car parking assessment. As the 'community asset' will be shared by school students primarily during school times and by other persons and groups outside those times, I agree with the Council that it should be characterised as an unspecified use rather than the two defined uses.
5. In what the permit allows, the Council's decision allows use for a 'community room'. In the permit conditions, it is referred to as a 'community facility'. On top of that, condition 1 does not require the plans to be amended to change the description of the 'community asset' to either a 'community room' or a 'community facility'. The inconsistency is unfortunate.
6. However, the Tribunal has authority to change the description of what the permit allows in a conditions review if that is necessary because of modifications to conditions or in a merits review.
7. For consistency with the conditions in the Council's decision, I will characterise the 'community asset' as a 'community facility' for the purposes of this proceeding.

1. Having regard to what is the subject land and characterisation of the use of the 'community asset' as a 'community facility', the permissions required under the planning scheme are those under clauses 37.08-2, 37.08-5, 37.08-6, 52.06-3 and 52.29-2 as identified in the information section at the start of these reasons.
2. The application for permission may therefore be characterised as an 'omnibus' application because it sought permissions under two or more clauses of the planning scheme. The grant of permission in the Council's decision may also be characterised as an 'omnibus' permission for the same reason.[12]

1. An application for permission under clauses 37.08-2 or 37.08-5 is exempt from notice and review rights unless otherwise specified in the schedule to clause 37.08-2.[13]
2. The schedule relevantly provides that an application for 'buildings and works' permission (i.e. under clause 37.08-5) is not exempt if, relevantly, they are 'within 30 metres ... of an education centre' or they 'exceed ... the preferred maximum height'. Both these conditions are met in the application and so there is no exemption under clause 37.08-5.
3. The schedule is silent about an application for use under clause 37.08-2. Accordingly, the application for permission to use the subject land for 'office' and 'dwellings' and for a 'community facility' ('the three purposes') is exempt from notice and review rights.[14] The main legal effects of this exemption are as follows.

1. First, in her merits application, Ms Box cannot seek to review the Council's decision to allow use of the subject land for the three purposes.
2. In the written submissions on behalf of Ms Box, use for a community facility is opposed on grounds that I would summarise as follows:

(a) MHS use of the community facility is opposed by, and will not be permitted by, either the Minister for Education or Department of Education.[15] Although Ms Box did not expressly refer to 'futility', Ms Box's inference was that granting permission to use the subject land for a community facility was futile because MHS would not obtain the necessary permission.

(b) It is unclear how MHS would lease or own the community facility and how it would fund the fit out of the facility for education purposes.

(c) The design of the community facility is unsuitable for use by groups other than MHS, primarily through poor access from Chapel Street.

1. To the extent that Ms Box relies on these grounds in contending permission should not be granted to use the community facility, I cannot consider those grounds.

1. Second, in accordance with the Supreme Court's decision in Myers v Southern Grampians SC,[16] the Tribunal does not have authority (i.e. jurisdiction) to review the Council's decision to grant permission to use the subject land for the three purposes or to create or alter access to Chapel Street.[17]
2. The Court's decision was handed down on the day before the final two days of the hearing of this proceeding and the parties did not therefore bring it to my attention before the hearing concluded. The parties also did not bring it to my attention after the hearing. However, as the ruling on the Tribunal's jurisdiction is part of the ratio decidendi of the decision and follows earlier Supreme Court and Court of Appeal authority, I am bound by that ruling in this proceeding.
3. That means I cannot direct the issue of a permit to use the subject land for the three purposes or to create or alter access. To use the language of the Court, the Council's decision to grant permission to use for the three purposes and to create or alter access has been 'established' and is separate from any grant of permission under other clauses.[18]
4. It also means that the Tribunal's earlier decision in the merits review to amend the permit application by substituting amended plans does not apply to the permissions to use the subject land for the three purposes and to create or alter access.
5. If the outcome of the merits review is to affirm or vary the Council's decision to grant the buildings and works permission and the parking permission, the permissions remain separate.[19] It would then be up to the Council to consider whether the permissions should be issued in a consolidated permission.
6. For completeness, the Council's grant of permission under clause 52.29-2 to create or alter access to Chapel Street is also exempt from review rights.[20] This permission also is established and the Tribunal does not have authority to direct the issue of a permit under that clause.

1. Third, it follows that if Ms Box cannot seek to review the Council's decision to grant permission to use the subject land for the three purposes or to create or alter access, the respondents to Ms Box's application cannot rely on grounds relating to whether those permissions should be granted, including use for the purpose of the community facility.[21]

1. GFM has applied to review 12 conditions in the permission granted in the Council's decision.
2. Having regard to Myers, I must determine which of the conditions apply to the permission to use the subject land for the three purposes or to create or alter access and which apply to the other permissions.
3. I will then proceed in two steps.
4. The first step is to determine the conditions review in relation to the permission to use the subject land for the three purposes. This step will then resolve that permission. I must only consider the submissions and evidence on the disputed conditions made by GFM and the Council.
5. The second step is to determine the merits review in relation to the other permissions (i.e. the buildings and works and parking permissions) and the balance of the conditions review relating to those permissions.

1. In determining the merits review, I may consider grounds relating to the buildings and works permission and the parking permission relied on by Ms Box and the respondents to Ms Box's application, as well as the Council and GFM.
2. The Council's decision to grant the permission to use the subject land for the three purposes, including for the community facility, is a relevant consideration in the merits review.[22]
3. In the context of this proceeding, this would include the Council's decision with conditions as may be deleted or modified by the Tribunal in the conditions review related to the permission to use the subject land for the three purposes. I must have regard to that decision in deciding the other non-exempt permissions.[23] This does not require a 're‑examination of the merits' of that decision. I must determine what weight to give to that decision in determining the merits review application.[24]
4. It is well-established that permission to develop land may include conditions affecting the use of that land as developed.
5. It therefore follows that I may consider the grounds relied on by the parties to the merits review relating to the use of the land as developed in accordance with any buildings and work permission (or parking permission) I direct to be issued.
6. Before I consider the first step, I need to deal with preliminary matters such as the previous decision, the strategic context for the proceeding, the lawfulness of the Council's decision, whether there are federal law issues affecting the Tribunal's jurisdiction, whether the Council's decision should be set aside on grounds of failing to protect a human right, and some notice and service failures.

1. On 21 January 2019, the Tribunal refused planning permission to construct a 22-storey mixed use building on 671 Chapel Street with a parapet height of 68.36 metres ('the previous decision').[25] The permit applicant in that case was Lantern River Pty Ltd ('Lantern River'). There is no evidence that GFM had or has any relevant association with Lantern River.
2. I will not repeat the well-established authorities for repeat appeals. It suffices to state that a repeat appeal must still be determined on its merits. Nonetheless, the Tribunal may proceed to refuse permission if:

(a) the new application has not materially changed from the application rejected by the previous Tribunal or does not respond to shortcomings identified by the previous Tribunal, and

(b) there are no changes to relevant circumstances that might explain why a similar application should now be favourably considered such as a change in the physical context or a change in the relevant planning scheme.

1. In these circumstances, a new application may be characterised as a 'classic repeat appeal' in which an applicant is effectively forum shopping in a bid for a different outcome from a differently constituted Tribunal.
2. I do not characterise the proposal in the new application as a classic repeat appeal for the following reasons.
3. First, there are material changes to the proposal. I will not repeat all the Tribunal's findings in the previous decision. The Tribunal said the height, breadth and materiality had a significant adverse impact on cultural heritage significance of MHS and was an unacceptable planning outcome.[26] It suffices to record that the proposal is lower in overall height, narrower in overall breadth and adopts different materiality than the proposal in the previous decision.
4. Second, there are also changes to the physical and planning context. The Council pointed out that CHES was constructed after the previous decision. It also pointed to five relevant amendments to the planning scheme that commenced after the previous decision.[27]

1. The strategic context is not materially different to that described by the Tribunal in the previous decision.[28] I adopt those descriptions.
2. The subject land is in the Activity Centre Zone Schedule 1 ('ACZ1'), within the Chapel Street Activity Centre ('the AC'), within Precinct 1 (Forrest Hill) ('the Precinct') and within Sub-Precinct FH-2 ('FH-2').
3. The previous decision refers to the relevant precinct guidelines for FH-2, the relevant built form and other guidelines for the ACZ1 and FH-2.
4. As the Tribunal said in the previous decision, 'it is not in dispute that there is strong strategic support for higher density development on the subject land given the zoning and broader policy directives'.[29]

1. Dr Kirkham submitted the Council's decision should be set aside because it was 'unfair', 'undemocratic' and 'unlawful' under the Local Government Act 2020 (Vic) ('the LG Act').
2. In support of those submissions, he tendered a recording of the Council meeting in which there was debate on the application including the officer's report and recommendation. He submitted it shows the Council improperly considered what the Council thought was the likely outcome of a Tribunal review of its decision and shows the Council failed to consider all objections. He also said the Council had displayed 'obstinate incompetence'.[30]
3. He also criticised the merit of the officers' report. He claimed officers in the planning department improperly refused to allow councillors to discuss the application with objectors. His submissions went as far as to allege that the Council's planning department 'controlled' and 'dominated' the Council. He says there is evidence of public sector misconduct about which the Tribunal must investigate and have regard.
4. During the hearing, I ruled that the recording of the Council's debate was not relevant to the proceeding. The Tribunal consistently regards the circumstances in which responsible authority considers an application before it is decided as not relevant in a merits review proceeding. This includes discussion that might have occurred between the responsible authority and the permit applicant and objectors about the permit application. It also includes what individual councillors (as members of a responsible authority) may have said in debate at a meeting before a decision is made.
5. It is to be recalled that a responsible authority is not required to give reasons for its decision to grant permission. Of course, if a review application is subsequently lodged with the Tribunal, the responsible authority officer's report must be provided to the parties under practice note requirements and this provides the reasons for the recommendations in the report. Of course, other grounds may be relied on in any hearing. This has been the case in this proceeding.
6. I did not listen to the tendered recording, consistent with my ruling. I also declined to make orders requested by Dr Kirkham for production of further documents relating to the Council's conduct.
7. After the first six days of hearings and after those rulings, Dr Kirkham applied to reconstitute the Tribunal and the President subsequently heard and determined that application before the hearing resumed.
8. At the reconstitution hearing, Dr Kirkham submitted the Tribunal should be reconstituted to include a judicial member because of what he described as 'political issues' associated with the Council's conduct. He said these issues meant there was a need for judicial independence and because my conduct to date had 'gone up to the line of demonstrating apprehended bias, but had not yet crossed that line'.[31] The President rejected the reconstitution application on these grounds.[32]
9. Dr Kirkham's specific ground about unlawfulness of the decision under the LG Act warrants separate but brief consideration.
10. Dr Kirkham made detailed submissions about this question, including the Council's failure to comply with various obligations under the LG Act.[33] His underlying arguments were that these obligations constrain the Council in making decisions under the PE Act and that the Tribunal inherits those obligations in a de novo review proceeding when it 'stands in the shoes' of the Council. He also relied on the Court of Appeal's observation that (footnotes omitted):

The Tribunal, in exercising its review jurisdiction exercises the functions of the responsible authority as the decision maker.[34]

1. Dr Kirkham falls into error with his underlying arguments. The LG Act is a separate statutory regime and the PE Act does not expressly or impliedly apply any requirements in that regime to a decision on a permit application under the PE Act.
2. The Court of Appeal's observation does not support Dr Kirkham's submission because 'the functions of the responsible authority' do not extend to functions of the Council in its capacity as a municipal council.
3. It is also useful to recall that the PE Act is framed around the potential for a responsible authority to not be a municipal council, which is presently the case in various parts of the State.

1. Dr Kirkham's grounds in the merits review application included that the Tribunal lacked jurisdiction to determine the proceeding because, having regard to Thurin v Krongold Constructions (Aust) Pty Ltd,[35] there is a federal law issue related to the Disability Discrimination Act 1992 (Cth). At any earlier phase of this proceeding, the President found no foundation to this argument.[36] At the hearing, Dr Kirkham did not press this argument with any force.
2. During this proceeding, Dr Kirkham has also maintained that GFM is the 'Singaporean Government' and an entity to which the Foreign Relations (State and Territory Arrangements) Act 2020 (Cth) applies. He claims that, under that law, GFM cannot negotiate an agreement (for example, with MHS for the use of the community facility) without the Foreign Minister's agreement and could not implement an agreement without that Minister's approval. He added that the Tribunal would be 'acting illegally' if it facilitated the arrangement regarding use of the community facility.
3. Dr Kirkham repeated these submissions at the hearing despite earlier findings by the then President of the Tribunal that:

Any contractual or other arrangements between [MHS] and [GFM] (and any of its associated entities that may be internationally based) are irrelevant to [the proceeding]. The identity of [GFM] or arrangements it enters into are not relevant matters for the Tribunal nor is it open to the Tribunal to consider them.[37]

There is no question of federal jurisdiction genuinely raised by these submissions.[38]

1. I agree with the President that the submissions are not relevant. Based on that ruling, I reject Dr Kirkham's submissions.
2. The submissions are also not relevant based on the reasoning in Myers. I must consider the Council's decision to grant permission to use the subject land for a community facility as 'established' in the manner proposed by GFM and subject to the conditions in the Council's decision.
3. Dr Kirkham's submissions are, in effect, that the community facility cannot be used as proposed based on 'foreign relations' grounds. I would give considerable weight to the existence of that permission and to the Tribunal's lack of jurisdiction to review that permission. Dr Kirkham is, in effect, inviting me to impermissibly re-examine the merits of that decision.
4. Even if the submissions were relevant, they amount to a futility submission. That is, it is futile to grant permission under the planning scheme because the Federal Minister's approval is necessary and has not been sought and obtained. A futility submission (if put) must also fail because, even if GFM's status is correct and even if the need for permissions under that law are correct (and I make no finding about those matters), there cannot be futility if permission has not even been sought.

1. Dr Kirkham submits the Victorian Charter of Human Rights and Responsibilities ('the Charter') is breached having regard to:

(a) the proposal's privacy, disability and amenity impacts that will be visited upon many people;

(b) the Tribunal's failure to offer an online hearing format and therefore restricting participation in the proceeding; and

(c) the Council's failure to respect privacy.

1. The Charter applies to the Tribunal in determining a proceeding such as this.[39] It is unlawful for the Tribunal to act in a way that is incompatible with a human right.[40]
2. I do not accept Dr Kirkham's submissions for two reasons.
3. First, I do not accept that the grant of permission for the non-exempt matters would be incompatible with any human right.
4. For example, in the 'privacy and reputation' right, a person has the right not to have that person's 'privacy, ... [or] home ... unlawfully or arbitrarily interfered with'.[41] There is no unlawful or arbitrary interference with allowing apartment habitable room windows and balconies facing each other across the distance in the proposal or with allowing construction of buildings on nearby land, as claimed by Dr Kirkham.
5. As another example, the Tribunal's decisions about participation by people in this proceeding do not breach the rights of 'taking part in public life' or for a 'fair hearing' for the reasons I gave in earlier phases of this proceeding.[42] Conducting this hearing in person is consistent with the principles of access to justice.[43]
6. Dr Kirkham did not identify or articulate the relevant human right relating to disability discrimination, so it is unnecessary to further consider that submission.

1. Dr Kirkham claims this proceeding should have been struck out or dismissed much earlier because of wide ranging claims about errors in the giving of notice of the permit application and errors in serving a copy of the application for review on objectors.
2. In these submissions, Dr Kirkham is revisiting claims considered and rejected by the Tribunal in earlier phases of this proceeding.[44] Dr Kirkham cannot continue to rely on them. Dr Kirkham may think that by 'forum shopping', he might persuade me to disagree with the Tribunal's earlier decisions. If so, he is mistaken. Dr Kirkham's opportunity was to appeal to the Supreme Court if he believed the Tribunal's earlier orders were infected with legal error. He has not done so.

1. The use permission allows use for three purposes ie the dwellings, office and the community facility.
2. The conditions that GFM has applied to review that apply to permission to use the subject land for the three purposes are conditions 1(y), 10(d), 10(e) and 11(a). Each of these conditions relate to the use for the purpose of the community facility.
3. These four conditions, in effect, require the community facility to be managed by the Council, require construction costs to be met by the owner, and require access to be maintained to the Council's satisfaction.

1. A 'height and massing requirement' applies across the whole of the AC and must be met unless the Council (and this Tribunal, on review) is satisfied that an alternative proposal is acceptable. It relevantly provides:

The preferred maximum building height may be exceeded in some circumstances if:

• It can be demonstrated that a significant community benefit can be achieved; and[45]

1. In effect, the Council contends such a benefit cannot be achieved without the Council managing the facility. Among other concerns, the Council submits that MHS management means the facility will be 'underutilised outside school hours because local residents [will] not know that it is available and/or may have easy access to it, particularly during school holidays when the school office ... may be unstaffed'.[46]
2. The Council also contends the requirement responds to the Tribunal's observations about 'significant community benefit' in the previous decision. In the previous decision, the proposal included a maternal and child health centre, which the Tribunal ultimately found achieved the relevant benefit. The Tribunal said:

... [W]e do not agree with Ms Peterson that the provision of the space for any community activity would necessarily be appropriate and result in significant community benefit.

1. I have carefully considered the whole of the Tribunal's observations about 'significant community benefit' and find them helpful and compelling.
2. The Council does not submit that use of the community facility by MHS and by others (as may be determined) is not a community benefit but that its management of the facility is necessary to ensure the benefit is 'clearly defined'[47] and, impliedly therefore, 'significant'. The Council submits it (the Council) currently provides spaces it manages for 'public events' through venue hire arrangements.
3. Size of the facility is a relevant consideration for 'significance' and the Council did not submit the facility is of a size that could not be 'significant'. On the facts, the 352 square metres of floor space for the facility (as shown on the decision plans[48]) is significant, if only because it occupies about one quarter of the podium footprint on level 1. It clearly cannot be characterised as a 'small and inadequate room'.
4. However, on the material in this proceeding, the Council's management is not necessary for a significant community benefit to be achieved.
5. First, the Tribunal's observations in the previous decision were obiter. In any event, they were qualified by 'necessarily'. The need for precise and full details about the intended use of floor space is not a requirement. Whether the requisite benefit can be achieved depends on the circumstances in each case. The requirement for precise and full details does not accord with the reality that community needs will change over time and precise use of the facility will accordingly change over time.
6. Second, the lack of clarity is not as extensive as the Council contends because the Council ultimately accepted that MHS is part of the Victorian and Stonnington 'community'. Accordingly, there is clarity for the primary use of the community facility. The achievement of benefit is not defeated by lack of identity of other non-MHS users.

I therefore accept that MHS is part of the relevant community even if some or most students and staff reside outside the Stonnington municipal district. If the primary user is MHS or others allowed by MHS for school or educational related activities, the primary use is use by the community. It does not defeat the concept of benefit to the community if secondary use by others is not identified and detailed in an applicant's proposal.

Third, the Council's contention does not give sufficient weight to other conditions relevant to use of the community facility that GFM does not challenge.

Condition 11 requires the owner to prepare a Community Facility Management Plan (a 'CFMP') to the Council's satisfaction before the use commences.[49] It must provide 'operational details'. These details can be as fulsome as the Council considers are necessary to ensure the benefit is significant. When approved, the community facility must operate in accordance with the CFMP. If it not operated in that way, there may be a breach of the permit and the permit could be enforced by the Council.

Condition 11(b) states these details may include 'the proposed hours in which the Facility will be available to the public for community use'. The word 'public' suggests that the Council intended that to mean available to users other than MHS, although it may be said that students and staff of MHS are part of the 'public'.

In any event, the condition allows the Council to determine (as part of the CFMP) the hours in which use by MHS and others may occur. This allows the Council to ensure MHS use does not unreasonably limit times for other use, as well as ensuring overall hours are an acceptable planning outcome, and compatible with condition 11(f) regarding 'managing noise and amenity complaints'.

Other conditions strengthen arrangements for non-MHS use of the community facility. For example, condition 10(c) requires a registered agreement to be entered into before the development starts that provides for allowing 'public access free of charge' to the community facility. In other words, MHS could not manage the community facility in such a way as to deter non-MHS use by fees and charges.

Fourth, the community facility is not the only element of the proposal that is a benefit. While I do not need to make a finding about whether each and every feature of the proposal is a benefit or a community benefit and to what extent, I am content to find the proposal will be a benefit in helping to achieve the objectives for the AC.

1. Fifth, the Council's concern about lack of clarity is mitigated by the track record of MHS in making its facilities available to non-MHS groups. GFM pointed out that MHS currently allows use by various community sporting clubs of its hockey field, netball courts, oval, swimming pool and gymnasium. Other parts of the school are used by external choirs, culture schools and language schools.
2. GFM submits that MHS intends to extend opportunities for use of the community facility in a similar way. The Council should draw comfort from MHS's track record that MHS will support non-MHS use of the community facility.
3. Sixth, the Council's concerns are over-stated about MHS being an unsatisfactory manager because Stonnington residents will not know the facility is available and will be disadvantaged in making booking because the school office will not be staffed outside school hours and school terms. Booking arrangements may be resolved as part of the CFMP. In any event, I understand school offices remain open during term breaks, although they may be closed for a limited time during the Christmas/New Year break.
4. The Council made no submission that the permit should be cancelled in the circumstances set out in section 85(1)(g) of the PE Act. I therefore do not need to consider this question.

1. Condition 10(e) provides that the registered agreement must require the owner to bear the construction costs of the community facility. GFM submits this is 'unlawful and unreasonable' because it is not the owner and the agreement should not bind an entity that is not involved in the permit application or the proceeding.
2. These contentions are unpersuasive. The community facility cannot be used until it is constructed. The facility will be constructed on behalf of the owner, being the then current owner of that part of the subject land in 671 Chapel Street, as part of the construction of the overall development.
3. There may be argument as to who bears the facility 'fit out' costs and whether they are 'construction' costs. The Council can ensure the endorsed plans for the development detail what fit out (if characterised as buildings or works) should be reasonably provided in the development, including bathroom and kitchen facilities, for the community facility. MHS may be required to complete the fit out for its use and how it funds this work. How this may be consistent with non-MHS use does not to be resolved in this proceeding.

1. Condition 10(d) provides that the registered agreement must require the owner 'to maintain access to the [facility] as shown on the endorsed plans and to a standard that is safe and fit for public access' to the Council's satisfaction.
2. The decision plans show pedestrian access directly from the MHS site via an elevated deck and from Chapel Street a path along the northern edge of the ground floor and a dedicated lift.[50]
3. GFM opposes this condition, not because it opposes the owner maintaining such access, but because it is 'undesirable and unnecessary' in an agreement because a permit condition outside an agreement would 'suffice' and be 'potentially' clearer.
4. These contentions are unpersuasive. As the development, if constructed, may be later subdivided and the community facility included in a separate lot, the ownership of the lot may change over time. An agreement obligation will be more likely to be brought to a prospective owner's attention. There should be a high priority given to maintaining safety and convenience for a wide range of users, including those with disabilities.

1. The Council does not need to manage the community facility for the facility to be a significant community benefit. I will delete condition 1(y) and 11(a).
2. The owner should bear construction costs of the community facility and the agreement requirement maintaining appropriate public access is acceptable. Accordingly, I will not delete conditions 10(d) and 10(e).

1. I now move to the second step of considering and determining the merits review. This includes determining the conditions review as those conditions do not relate to the permission to use the subject land for the three purposes or to create or alter access. I will proceed to consider the main issues in the merits review.

1. I have already described in these reasons some of the main built form aspects of the proposal.

1. I will start with how the proposal responds to the main built form requirements relevant to the subject land:

(a) The proposal's maximum height is 65.5 metres[51] and exceeds the preferred maximum height of 38 metres.

(b) The proposal's street setback is three metres, which is the preferred setback.

(c) The proposal's street wall height is 12.2 metres and exceeds the preferred maximum height of 12 metres.

(d) The proposal's setback above the street wall is between three metres and six metres and is less than the preferred setback of 12 metres.

(e) The proposal's setback from side and rear boundaries above the podium is six metres from the northern boundary of 671 Chapel Street, between 4.8 metres and 7.4 metres from the rear boundary, and six metres from the southern boundary. The preferred setback is six metres.

(f) The proposal's upper level setback between towers above the street wall is about 24 metres (to the towers to the south at 661 & 663-665 Chapel Street) and the preferred setback is 12 metres.

1. In determining whether the built form is acceptable, I must consider relevant matters, including relevant decision guidelines which include relevant policies. I have considered these matters but, in the interests of space, I will not include or refer to them all.
2. The parties made a range of submissions about these matters, but I will not summarise them here. However, I will mention that the Council only opposes the proposal's built form response in respect of maximum building height. In condition 1(x) of its notice of decision, it requires a reduction in building height to '18 storeys (maximum 60 metres above NGL)', which is a reduction of between 6.2 metres and 6.5 metres[52] or about two storeys. GFM seeks the deletion of this condition in the conditions review.
3. I have had the benefit of expert evidence on built form matters from the town planning, urban design and architecture witnesses.

1. In determining whether the proposal is an acceptable response to these requirements, it is relevant to first consider whether the proposal responds to the existing built form context.[53] That context is built form along both sides of Chapel Street in the vicinity of the subject land. I will not detail the range of those buildings and their heights and setbacks.
2. Some respondents submitted the structure of ACZ1, based on text in the explanatory report for the planning scheme amendment that introduced ACZ1, supports a lesser role for existing context. A lesser role is not evident in the text.
3. It is not in dispute that the existing context is 'tall, robust' buildings. I agree with GFM that it is 'common' that built form exceeds preferred maximum heights across the AC.[54]
4. The two main disputes relating to context were whether the tower setback from the rear boundary responded to the setbacks of the 33-storey tower at 661 Chapel Street (about 18 metres south of the subject land) and the 16-storey tower at 681 Chapel Street (about 40 metres north of the subject land and on the southwest corner of Chapel Street and Alexandra Avenue). Relevantly, these two towers are also located in FH-2.
5. The rear boundary tower setback at 661 Chapel Street ranges between 0.8 metres and 12.9 metres due to the curved building form, but most of the tower is set back about 4.3 metres and I would adopt that as the average setback. The rear boundary setback at 681 Chapel Street is about 31 metres.
6. The proposed tower setback is acceptable in context because, even though the southern cleaved tower form is setback 4.8 metres, the average setback of both proposed forms is six metres and meets what is preferred. As well, the more important comparator in context is 661 Chapel Street rather than 681 Chapel Street. The 4.8 metres setback responds to the average 4.3 metres setback at 661 Chapel Street.
7. Although Mr Campbell gave more weight to the setback at 681 Chapel Street, I would give it less weight having regard to its particular circumstances, including its corner location and the provisions of the planning scheme as they existed when it was approved. Finally, the proposed setback does not deliver a significant precedent value given this is probably the last development site in FH-2.[55]
8. While acknowledging and considering the preferred built form requirements,[56] I find that each of the variations in the proposal from what is preferred is an acceptable response to the existing context.

To provide tall, slender building forms rather than bulky, monolithic buildings in order to minimise visual bulk.[57]

1. Neither the Council nor Mr Campbell said the proposal failed to respond to this objective, but some respondents (including Dr Kirkham) insisted the proposal's form was anything other than slender.
2. I have found Mr Goss' photomontages of the proposal of assistance in determining the response to this objective.
3. Figure 2 shows the proposal from Yarra Street, directly opposite the MHS main building tower.

Figure 2: View of proposal from Yarra Street. Source: Chris Goss, statement of evidence, photomontage 06.04.

1. The proposal is shown to the right of the MHS central tower. The building to the left of the tower is 681 Chapel Street. The buildings further to the right are 661 Chapel Street (in the foreground) and 663-665 Chapel Street (in the background).
2. Interpreting the objective is not without difficulty because concepts of 'tall' and 'slender' are relative and intertwined. In my opinion, the objective is more relevant from the public realm and more relevant in views from the street in which it fronts and the rear and less relevant from side views.
3. The proposal may be tall in the sense of exceeding the height of 681 Chapel Street, but is clearly shorter than 661 Chapel Street. It is also more slender in appearance than both buildings from this viewpoint. If the height of the proposal was reduced (eg by two storeys, as sought by in the Council's decision), it would appear less slender.
4. Figure 3 shows the proposal from Chapel Street on the oblique.[58]

Figure 3: View of proposal from Chapel Street. Source: Chris Goss, statement of evidence, photomontage 04.03.

1. The existing blue/grey building in the centre of the image in figure 3 is 663-665 Chapel Street. The existing four storey CHES is to its right. The proposal is to the immediate right of CHES. Somewhat more of the south side of the proposal is apparent from this viewpoint because of the intervening lower form of CHES.
2. Figure 2 is instructive because it emphasises the cleaved form of the tower which creates an appearance of two relatively slender forms. A closer inspection of figure 2 also shows the cleaved form helps create light and shadow on the façade. It also shows the apparent taller form of the southern form. This is created simply by the greater rear boundary setback of the northern cleaved form at level 19.
3. In conclusion, the proposal is an acceptable response to this objective.

1. The next relevant consideration is whether the proposal responds to two guidelines relating to impact on viewlines.
2. The first is an ACZ1-wide guideline that 'buildings and works should be designed to protect and preserve significant view lines ...'.[59]
3. The second is a FH-2-wide guideline to:

Ensure new buildings do not confuse the [MHS] building roofline as viewed from Yarra Street, at a point directly perpendicular to the midpoint of the main hall.[60]

1. The first guideline must be interpreted in context. Having regard to the ACZ1 provisions as a whole and to the FH-2 built form guidelines in relation to building height, it would be incorrect to interpret 'protect' and 'preserve' as meaning that new buildings must not appear above the MHS roofline.
2. While all viewlines have relevance, the planning scheme does not recognise all as significant. The viewline from Yarra Street at the boundary of the MHS oval looking east is the relevant significant viewline.[61] The second guideline confirms the significance of this viewline, emphasising that a proposed building should ensure it does not confuse the MHS roofline.
3. In determining whether the proposal responds to the guideline, I consider it necessary to assess the existing and proposed impact. The existing impact from the most significant viewline is depicted in figure 4.

Figure 4: Existing view from Yarra Street. Source: Chris Goss, statement of evidence, photomontage 06.01.

1. The existing building to the left of the central tower of the MHS building in figure 4 is 681 Chapel Street. It is a relatively wide building and appears to rise about seven floors above the roofline for most of the roof north of the central tower. However, I do not observe any 'confusion' in the sense that there is no material blurring in the appearance of the roof line below that building. None of the planning and design witnesses said there was any relevant confusion.
2. Figure 2 shows the impact of the proposal. The proposal occupies a lesser portion of the backdrop of the roof line south of the central tower than 681 Chapel Street occupies of the backdrop of the roofline north of the central tower. There is more unobscured roofline in the south than the north.
3. The appearance of the MHS central tower, being the focus of the viewline, is unaffected. The rear façade of the proposal is clearly distinguished from the roofline, particularly due its cleaved form, the three-storey grid and the darker appearance of the corner balconies. There is no confusion.
4. I have also considered other viewpoints. The Council was particularly concerned about a viewline from the northwest on Alexandra Avenue. Figure 5 shows impact on the MHS roofline from the north side of Alexandra Avenue, opposite the vehicle entrance to MHS.

Figure 5: Existing and proposed views from Alexandra Avenue. Source: Chris Goss, statement of evidence, photomontages 07.01 and 07.02 showing existing (left) and proposed (right) views from Alexandra Avenue.

1. This is a relevant viewpoint but is not a significant viewpoint. From this viewpoint, 661 & 663-665 Chapel Street (together with 31-storey building at 670 Chapel Street to their immediate left) forms a complete backdrop to the MHS central tower.
2. The proposal occupies the backdrop to the left half of the central tower (positioned in front of 661 Chapel Street) but does not confuse the roof of this part of the central tower. The proposal does not confuse the roofline of the MHS building that is north of the central tower because the viewline is obscured by evergreen vegetation on the MHS site.
3. Again, there is nothing in the materiality or design of the western or northern façades of the proposal that creates confusion with the MHS roofline from this viewpoint.
4. At the hearing, the Council put more weight on a submission that, from the Alexandra Avenue perspective, the proposal would unreasonably remove a part of the sky view above the MHS building and/or result in an unacceptable 'conglomeration' of buildings in the backdrop to the MHS building.
5. Impact on sky views and building conglomeration (or agglomeration) are not impacts of significance under the planning scheme in the AC, the Precinct or FH-2. The planning scheme prioritises impact on the MHS roofline from Yarra Street.
6. Impact on viewlines does not support the removal of two storeys, as sought by the Council, or the refusal of permission for the buildings and works, as sought by Ms Box and most of the respondents.

1. In FH-2, the planning scheme includes the following guideline:

Avoid buildings having an overbearing presence on the [MHS] building.[62]

1. It is be recalled this is a 'guideline' and is not a mandatory or preferred requirement. A guideline, as with policy, must be applied flexibly having regard to the particular circumstances.
2. MHS comprises many separate buildings. The focus should be on the original 1920s building, the nearest part being the short eastern wing at the southern end of the original building (about 15 metres from the northern part of the rear boundary of the subject land.
3. Much less focus needs to be given to other MHS buildings more proximate to the subject land, such as:

(a) the gymnasium;

(b) the substation, which is located about three metres from the southern part of the rear boundary of the subject land; and

(c) the more recent (non-heritage significant) classroom building behind the southern wing of the 1920s building, which is located about six metres from the northern part of the rear boundary of the subject land, and which is oriented away from the rear boundary.

1. The relevant MHS building has State heritage significance. Whether the proposal has an overbearing presence is relevant to heritage impact, which I will address later in these reasons.
2. In the previous decision, the Tribunal said that to determine if a building is overbearing for the purposes of this provision, it is necessary to have regard to 'the combined effect of the building elements, including materiality, articulation and the fluidity and simplicity of the form'.[63] I agree that a range of elements must be considered and adopt what the Tribunal said.
3. After considering those factors, the Tribunal held the proposed building in the previous decision 'looms over, and indeed overwhelms' the MHS building in part because it occupies what remains of the unimpeded silhouette of the MHS building'. It said its finding was based on its inspections and the photomontages, which were also prepared by Mr Goss.
4. The key vantage points on which the parties and the witnesses principally relied were the same two vantage points in the viewlines consideration (above).
5. Extracts of those photomontages are in figure 6.

Figure 6: Images of proposed building in previous decision. Source: Chris Goss, statement of evidence in previous decision, photomontages 2 and 3 from Yarra Street (left) and from Alexandra Avenue (right).

1. Mr Campbell's opinion was that the proposal would be overbearing because it is too tall and would 'rise notably' above the 'historic' MHS building and this is 'emphasised' by its 'close proximity' to the rear boundary.[64] The opinions of Ms Ring, Mr O'Dwyer, Ms Roberts and Ms Baker were that the proposal would not have an overbearing presence.
2. I do not prefer Mr Campbell's evidence. He relied on doubtful dimensions for the height of the roofline (including the flag pole about the central tower), on a misunderstanding that the preferred maximum height was based on an objective that no built form should protrude above the historic MHS building, and did not consider and balance other provisions of the planning scheme, especially for the AC.
3. Mr Campbell also inadequately considered factors other than height and rear setback. He correctly acknowledged that the extent to which the proposal overbears the historic MHS building from Alexandra Avenue is diminished by 661 & 663-665 Chapel Street in the backdrop (figure 5).
4. While the reduction in the maximum height of the proposal is relatively modest 'vis-à-vis' the building in the previous decision, it does not have an overbearing presence partly because of its lesser bulk. In part, this is due to the reduction in maximum width and to its rectilinear and not curvilinear form. The façades are also more articulated with their three-level grid, and have warmer colours. All of these features are more responsive to the historic MHS building western façade.
5. It follows that a two-storey reduction in maximum height is unnecessary to respond to the 'overbearing' guideline in the planning scheme.
6. Some respondents made somewhat muted submissions about how the proposal would overbear the historic MHS building from points on the MHS site close to the rear boundary of the subject land. As this is not a public realm point, it has less significance. On the MHS site, with its closely spaced buildings between the historic MHS building and the subject land, any potential overbearing presence is lost in a relative sense.

1. The next relevant consideration is 'a height and massing requirement' that applies across the whole of the AC and must be met unless the Council (and this Tribunal, on review) is satisfied that an alternative proposal is acceptable.
2. The 'requirement' provides:

The preferred maximum building height may be exceeded in some circumstances if:

• It can be demonstrated that a significant community benefit can be achieved; and
• It continues to meet the objectives, requirements and guidelines in relation to visual impact and overshadowing with increased upper level setbacks.[65]

1. As I have stated, the proposal exceeds the preferred maximum height by about 27 metres.
2. The Council was not satisfied the proposal was an acceptable alternative but would be if two storeys were removed from the proposal in the substituted plans. Ms Box and the respondents submitted that both limbs were not met for a range of reasons and that the proposal should therefore not exceed a maximum height of 38 metres.
3. The first limb of the requirement concerns demonstration of a 'significant community benefit'. I have already considered the submissions of the Council and GFM in the application of this guideline in my assessment of GFM's challenge to conditions relating to the permission to use the subject land for the community facility.
4. In this second stage of determining this proceeding, Ms Box and the respondents made extensive submissions about this first limb. I will return to this 'community benefit' limb later in these reasons.
5. The second limb is a guideline to the effect that if 'objectives, requirements and guidelines' regarding 'visual impact' and 'overshadowing' continue to be met with 'increased upper level setbacks', the preferred maximum building height may be exceeded.
6. The overshadowing objectives, requirements and guidelines are not relevant in this proceeding because the proposal does affect the specified streets or the open space, village squares and urban plazas as shown on the Precinct Maps.[66]
7. It is more difficult to find if the visual impact objectives, requirements and guidelines continue to be met. It is not always clear which ones relate to visual impact because none are defined to relate visual impact.
8. The Precinct objectives[67] include 'tall, slender' building form and, as I have stated, the proposal is a satisfactory response to that objective. The Precinct objectives also refer to building articulation, variations in materials, openings and colours and (particularly relevantly) 'vertical design elements'. These are all satisfied having regard (for example) to the façade grid, podium materials and balcony openings.
9. The height and massing requirements are circular in application, and the height and massing guidelines refer to qualitative matters such as articulation, distinctive appearance, and building scale and form. Those matters are also satisfied.
10. It therefore follows that increased rear boundary tower setbacks beyond the preferred minimum six metres are not necessary (being the relevant 'upper level setbacks' under this second limb). This finding is made with one exception. The western penthouse on level 19 is set back about 2.6 metres from the floor below in the northern cleaved form but is not set back from the floor below in the southern cleaved form.
11. There is a need for a greater setback in the southern form at this level to meet visual impact objectives. I will refer to this setback later in these reasons.

1. Having regard to the relevant considerations considered in this section of the reasons, the proposal's built form response is acceptable. Having regard to those considerations, the Council's requirement for a two-storey reduction in maximum height and Ms Box and the respondents' submissions for a reduction to meet the preferred maximum height are unnecessary. GFM's challenge to condition 1(x) will be allowed and I would delete that condition.

1. As I have stated, the subject land is not in a Heritage Overlay. The proposal does not need to respond to any heritage significance of the subject land. However, the abutting MHS site is in HO2.
2. Across the AC, the following relevant guidelines apply:

For sites ... adjoining a Heritage Overlay, appropriately respond to the heritage significance of the heritage place.[68]

Where built form has a sensitive interface [or] is ... adjoining land in the Heritage Overlay, setbacks greater than the preferred minimum setbacks at Clause 5 should be provided'.[69]

1. As I have stated, the MHS site is included in the Victorian Heritage Register. Ms Baker tendered the registered statement of significance. I will not reproduce it here. It suffices to state the 'main school building' is of historical, architectural and aesthetic significance. The aesthetic significance derives from its 'prominence and vistas from the north and west' and the 'careful siting of all later buildings to avoid any interferences with these significant sight lines'.
2. Extensive submissions about the history and significance of MHS were made on behalf of Tony Wheeler and Maureen Wheeler and those submissions supported the registered statement of significance.
3. The statement of significance cannot be relied on to support a view that the ACZ1 should restrict development above the roofline of the MHS 'main school building'. The preferred maximum height of 38 metres for the subject land applies to FH-2 being land to the immediate east of the MHS site. Any building of the preferred height would significantly exceed the roofline in views from the north and west.
4. The previous Tribunal identified the relevance of State planning policy to:

Ensure an appropriate setting and context for heritage places is maintained or enhanced.[70]

1. In the previous decision, the Tribunal said the 'fundamental' consideration was the impact of the proposal on the 'integrity' of the main school building when viewed from Yarra Street.[71] This has a close relationship to the viewlines guideline impacts that I have addressed.
2. The previous Tribunal found the proposal in that case would not 'overwhelm' the main school building. However, it found the proposal in that case would nevertheless have an 'overbearing presence' on MHS and would impact the MHS main building's cultural heritage significance to such an extent that it contributed to the Tribunal's ultimate finding that the proposal in that case was an unacceptable planning outcome.[72]
3. I have already found the proposal in this proceeding does not confuse the roofline of the MHS main school building, preserves 'significant' and relevant viewlines, and does not overbear that MHS building. This contributes to a finding that the proposal responds to the MHS heritage place and does not affect its setting.
4. In addition, I give some weight to both Ms Baker's and Mr O'Dwyer's opinions that the vertical façade articulation in the two cleaved ('bifurcated') vertical forms both support a slender appearance and reflect the recessed central MHS tower. This is illustrated in figure 7.

Figure 7: Massing of MHS central tower and the proposal. Source: Julian Anderson, Design Presentation p 17.

1. I also agree with Ms Baker's opinions that the three-level vertical façade grids helps break down mass, and that the proposed colours and proportions reflect elements in the façade (including fenestration) of the main school building.
2. These elements respond to the historical significance of, including the setting of, the main school building.
3. Ms Baker's evidence is that the impact on the significance of the main school building from Alexander Avenue is not adversely affected by the proposal. Ms Baker was not challenged by the parties on this opinion. Any concern about such an adverse effect is muted and has little weight.
4. There is another aspect of the proposal's design that responds to this significance. First, the northern form of the two cleaved vertical forms is set back from the rear boundary more than one metre greater than the preferred six metres minimum setback. The northern form is closer to (being directly opposite) the end of the southern wing of the main school building, whereas the southern is more distant (and is not directly opposite).
5. Accordingly, subject to one feature to which I will shortly refer, there is no need for additional rear boundary setbacks for tower elements on heritage grounds. To the extent that the Council relies on heritage grounds in support of its requirement to delete two storeys, that reliance is without sufficient justification.
6. At level 19, there is a four metre minimum setback from the subject land's rear boundary in the southern tower form. This setback applies to a section of wall about 5.5 metres long in the wardrobe and ensuite of the master bedroom in penthouse 1.
7. This setback is insufficient and results in an overbearing presence to the MHS site and I do not support it on heritage grounds. The setback needs to be a minimum of 7.5 metres to reflect the setback in the northern form from the floor below, which is also part of penthouse 1. This means the adjoining balcony in the southwest corner could be enlarged.
8. I will include a condition that requires this additional setback. I will leave it to the Council and GFM to resolve any internal layout consequences.

1. As I have stated, one of the considerations relevant to whether the preferred maximum building height should be exceeded is whether it 'can be demonstrated that a significant community benefit can be achieved'.
2. Although this is a height and massing 'requirement', it needs repeating that it is a discretionary requirement and a permit may be granted to construct buildings or works which are not in accordance with the requirement,[73] and if an alternative proposal is acceptable.[74] It is not a jurisdictional fact. This is consistent with other Tribunal decisions.[75]
3. There is also some overlap with the consideration of whether the proposal results in a 'net community benefit' within the overall assessment under the planning scheme.[76]
4. The issue of significant community benefit occupied significant time in the hearing of the proceeding and significant space in the submissions and evidence. While I accept that other features in the proposal could contribute to community benefit,[77] the focus of submissions and evidence was on whether the community facility could achieve a 'community benefit' and was 'significant'.
5. I have already referred to the Tribunal's observations about what is 'significant community benefit' in the previous decision and those observations were helpful and compelling.

1. Earlier in these reasons, I detailed what is proposed. It is unnecessary to repeat those details, other than to confirm that in the merits review I must consider what is proposed by reference to the substituted plans and the submissions and evidence in the hearing.[78]
2. The space has a floor to ceiling dimension of four metres which is greater than other parts of the proposed building. The substituted plans show a door between the community space and the rest of the building at level 1.
3. GFM agreed the substituted plans had omitted a set of stairs in the community space adjoining this door that were necessary to respond to different floor levels and tendered a plan during the hearing adding the necessary stairs.[79] GFM confirmed this access would only be for use in emergencies.

1. An overview of the submissions and evidence is as follows.
2. The Council has granted permission to use the subject land for the community facility. The use for that purpose is established. While the Council accepts that the community facility is a community benefit, its primary submission was (in effect) that it was not a 'significant' benefit in the absence of the condition in the Council's decision requiring the Council to manage the facility to ensure, among other things, groups other than MHS can have convenient access to the facility.
3. I have already determined in the conditions review relating to the use permission that management by the Council is not necessary to characterise the community facility as a significant community benefit.
4. Ms Box and other respondents (in particular, Dr Kirkham, Tony Wheeler and Maureen Wheeler) made detailed submissions. I will shortly briefly address some their grounds. Ms Box relied on a memorandum prepared by an experienced town planner, Sandra Rigo.
5. Following an objection by GFM, I ruled Ms Rigo's statement would be accepted but, in the normal way, it would not have the weight of tested expert evidence. The statement was not prepared in accordance with the Tribunal's usual practice note requirements for expert evidence. The statement has the weight only of part of Ms Box's submissions.
6. GFM relies on the opinions of Ms Ring whose evidence was tested. GFM did not rely on the evidence of the MHS principal Dr Mordini whose written evidence was withdrawn.

1. While I granted leave for this withdrawal, I found it necessary to invite submissions as to whether an adverse inference should be drawn that Dr Mordini's evidence would not have assisted GFM.[80]
2. After considering the submissions by several parties, I would not draw such an inference.
3. An inference may be drawn if there was an expectation the witness would be called. In other words, was it expected that GFM would call Dr Mordini? GFM filed Dr Mordini's statement of evidence and was intending to call Dr Mordini. However, GFM says it does not rely on Dr Mordini to make its case. In effect, GFM is content that Dr Mordini, on behalf of MHS, supports the proposal and MHS intends to use the community facility.
4. An inference may also be drawn if there was no explanation for not calling a witness. GFM said Dr Mordini was unavailable and, that based on foreshadowed extensive cross examination of Dr Mordini, the cross examination would be oppressive.
5. Dr Kirkham's submissions were extremely critical of Dr Mordini's conduct, including that Dr Mordini had acted on an unlawful 'frolic' in supporting the proposal; that Dr Mordini did not have the support of the MHS Council; and that Dr Mordini should be investigated for 'public misconduct'. I regret to record that Dr Kirkham also made wholly unnecessary allegations about Dr Mordini's career and standing as an education leader.
6. More importantly, Dr Mordini's evidence was unnecessary because use for a community facility in accordance with the permit application had been established by the Council's decision to grant permission to use the subject land for that purpose subject to conditions. I will say more about this matter shortly.

1. There need be no argument that there is uncertainty about use of the community facility on the grounds that:

(a) MHS is not a party to the proceeding, or

(b) the community facility cannot be satisfactorily adapted for MHS use on the withdrawal of Dr Mordini's written statement.

1. There is adequate certainty because GFM submits, based on a tendered letter of support signed by Dr Mordini, the design of the community facility has 'been developed with the express support and in collaboration with the MHS'.[81]
2. In a flourish of hyperbole, Dr Kirkham submitted MHS does not need the community facility for educational purposes because 'in five years, it will all be online'. As well, Dr Kirkham inconsistently insisted that the space was too small for MHS use and it needed to be 'at least 1,000 square metres' (i.e. about three times the proposed size). Dr Kirkham cannot speak with any authority as to MHS's current and future needs and there is no weight to his submissions on this matter.
3. Dr Kirkham, Tony Wheeler and Maureen Wheeler submitted there is no certainty about non-MHS use of the community facility because, in effect, 'no one wants it' and 'there are plenty of under-used facilities for non-MHS community use'. While they are correct that no statements from non-MHS groups have been tendered expressing their intention to use the community facility, such statements are unnecessary and premature in the context of the preparation of a CFMP.
4. As I have stated, MHS makes its facilities (sporting and non-sporting) available to a significant number of groups. I accept the submission on behalf of GFM, given in response to my questions, that it is possible that those existing groups could be interested in using the community facility for related purposes such as annual general meetings and awards functions.
5. The issue of uncertainty also loses weight because, in accordance with Myers, I must have regard to permission having been established for the use and that I have determined challenges to conditions relating to the use.
6. Some respondents submitted, without great force, that there can be no certainty following construction and subdivision of the building because the facility may be subject to owners corporation rules that conflict with the CFMP. This is speculative. It is akin to 'jumping at shadows'. It is no basis to conclude that a significant community benefit could not be achieved. In any event, if there were to be future conflict, there are mechanisms under other legislation to resolve any conflict.

1. Dr Kirkham, Tony Wheeler and Maureen Wheeler contended MHS is not part of the 'local' community and therefore MHS use of the community facility should be excluded in considering community benefit.
2. I disagree. MHS is part of the local community, however that is defined. The provision itself is wider because it contains no qualification relating to 'local'.
3. Ms Box accepts MHS is part of the community but submits there is little benefit because MHS is a 'narrow' part of the community and the benefit to the 'Stonnington community' is 'more nebulous'. I do not accept and the Council does not accept that the MHS community is not part of the Stonnington community and I have already said lack of certainty about non-MHS use is not a reason to reject existence of a community benefit.
4. Dr Kirkham referred to an earlier Tribunal ruling in the proceeding that refused his request that MHS students and parents be given notice of the application for review. The Tribunal refused the request because it said 'those groups are transient to the area and are not the same as residents in the area'.[82] Dr Kirkham said GFM cannot now submit that MHS was part of the local community.
5. I do not discern any necessary inconsistency between the ruling and GFM's submission.
6. First, GFM's primary submission was that 'community' for the purposes of 'significant community benefit' was not limited to 'local', however 'local' would be defined. The primary submission was that 'community' was a wider concept and that MHS comfortably fell within that wider concept.
7. Second, I understand the ruling was in the context of whether MHS students and parents were entitled to notice of the permit application and, if not, whether they should be given notice of the application for the conditions review. I understand the ruling to be that MHS students and parents were not affected in the relevant way, even if MHS itself might be affected.

1. Muted submissions were made that non-MHS use of the community facility will not be wide enough to constitute a significant benefit. A facility that is made available to particular groups on request can be a significant benefit. By analogy, the helicopter pad at the Alfred Hospital might be considered a significant community benefit even if the community who benefits (being people from a broad area needing hospital treatment) is a narrow section of the community.

1. According to submissions on behalf of Tony Wheeler and Maureen Wheeler, GFM submitted a valuation report to the Council in support of its permit application. The Council's officers, in their report, did not refer to this valuation report.
2. The officers nevertheless considered:

(a) the value of the streetscape upgrades;

(b) the value of the community facility to non-MHS users based on an assumed availability for 50% of the time over the course of a year; and

(c) a cash contribution of $500,000 offered by GFM and included by way of requirement in condition 10(a),

'to represent a significant community benefit to satisfactorily offset the proposed increase sought by the application' (i.e. as sought in the decision plans).[83]

1. After estimating the combined financial value of these benefits, the officers were satisfied there would be a significant community benefit based on an analogy with contributions made for an office building at 627 Chapel Street. In that case, the officers reported that the cash contribution was offered in lieu of an open space contribution for residential development and in exchange for a greater exceedance in maximum height and overall density than in this proceeding.
2. In its submissions in this hearing, the Council submitted that the cash contribution required by condition 10(a), together with the streetscape works (required by condition 10(b)), free of charge access to the community facility (required by condition 10(c)), ongoing safe access to the community facility (required by condition 10(d)) and requiring the owner to construct the community facility (required by condition 10(e)) were all necessary to ensure the proposal could achieve a significant community benefit.
3. Tony Wheeler and Maureen Wheeler made extensive criticisms of the valuation report and the officers' report and the value of the benefits in both reports. I will not repeat them. Dr Kirkham went as far as to submit there can be no significant community benefit without a cash contribution to the Council of at least '$20 million' or, as I discerned, a financial value of all relevant benefits of at least that figure.
4. There is no authority for the proposition that there needs to be a specified financial value of benefits contributing to a 'significant community benefit'. There is no express or implied requirement of that type in the provisions of the planning scheme relating to significant community benefit in clause 4.4 of the ACZ1. The officers' report can be characterised as a guide to the estimated value of selected benefits. It was apt to confuse the submissions of the respondents on this provision of the planning scheme.
5. Significance requires judgment about what can be achieved and not calculation of present or future financial value.
6. A close examination of the officers' report shows that the main purpose of valuing benefits was to justify the cash contribution offered by GFM and required by condition 10(a). I further consider this contribution shortly as part of the infrastructure contributions assessment.

MHS use is unlawful and is based on public misconduct

1. Ms Box tendered a range of documents released under the Freedom of Information Act 1982 (Vic) relating to MHS's proposed use of the community facility.
2. She said those documents showed what Ms Box described as a 'principal terms agreement' between MHS and GFM or one of its related entities and which she said provided for MHS use at no cost in exchange for MHS support for the proposal.
3. She said the agreement appeared inconsistent with other documents suggesting that the Department of Education ('the Department'), or that the Victorian Schools Building Authority ('the Authority'), did not support MHS use of the community facility and what was proposed in the agreement. She ultimately submitted the lack of clarity goes towards a finding of that a significant community benefit could not be achieved.
4. Dr Kirkham, Tony Wheeler and Maureen Wheeler went further. They claimed:

(a) MHS use of the community facilities was unlawful, was not supported by and could not obtain the necessary support of either the Authority, the Department or the Minister for Education.

(b) Dr Mordini's role in securing the agreement with GFM amounted to public misconduct.

1. In another flourish of hyperbole, Dr Kirkham said MHS use of the community space was 'akin to opening the school to squatting' and, in an explained comparison, 'wasn't much different to China's Belt and Road Initiative'. These claims have no weight.
2. Dr Kirkham contended that because, in his submission, MHS use would be unlawful, the Tribunal has no jurisdiction to make any finding about whether a significant community benefit can be achieved. If the Tribunal were to make any finding, he went further and warned of grave risks of reputation damage to MHS, to the Victorian planning system and to the Tribunal. I do not accept the premise of these extreme and incorrect claims.
3. Dr Kirkham urged me to investigate in significant detail the agreement or other arrangements between MHS and GFM and to investigate Dr Mordini's conduct, including urging me to order production of many further documents he claimed existed. I declined to do so.
4. The nature of any agreement or the arrangement between MHS and GFM for MHS use of the community facility are not relevant considerations. Whether there has been any misconduct is not for me to consider.
5. My findings about this are consistent with orders arising from an earlier hearing of this proceeding in which the President heard argument about the relevance of these matters. The President ruled:

The only matters which the Tribunal can legitimately take into account are those which are set out in section 84B of the P&E Act. The alleged arrangements between Melbourne High School and the permit applicant do not fall within any of the categories set out in section 84B. Again, the matters raised by Dr Kirkham are not capable of legal argument in the context of a planning review. Moreover, the Tribunal would fall into error if it were to consider extraneous matters such as those urged upon it by Dr Kirkham.[84]

1. Ms Box and the respondents (and Dr Kirkham in particular) submitted pedestrian access to the community facility was unsatisfactory for non-MHS use mainly because:

(a) the facility was at the rear of the subject land (being a significant distance from Chapel Street) and therefore would be difficult to find;

(b) access along the walkway on the north side of the ground floor residential lobby was not wide enough for wheelchair traffic (or other people with other mobility needs);[85] and

(c) the single lift access, albeit designed for disability access, was not sufficient for use by a significant number of people with disabilities.

1. The first submission overstates the difficulty. The distance is only about 40 metres from Chapel Street. Signage can guide users to mitigate any disorientation. Familiarity will assist those in groups with regular bookings. More importantly, people with mobility needs can be dropped off close to the lift.
2. There may be some merit in the second submission, but the width of the walkway is fundamentally a building regulation matter.
3. GFM submits the National Construction Code related to disability access does not prescribe a minimum accessway width. On the evidence and submissions, the outcome under building regulation may be a need to marginally increase the walkway width. There is scope for the planters along the walkway to be narrowed to increase, if necessary, the width without a fundamental re-design of the ground floor.
4. The third submission is not accepted. There is no evidence as to the relationship between the amount of wheelchair bound users and delays in accessing the single lift.
5. It is unreasonable that access be designed for the circumstances that the maximum number of users that may be permitted under the CFMP are all users with mobility needs. It is reasonable that, if there are a small number of users with mobility needs, those users arrive a little earlier to ensure timely access. A group with a significant number of such users may choose to use a different facility. By itself, that does contribute to a finding that a significant community benefit cannot be achieved.
6. It also needs to be remembered that condition 10(d) requires access to be maintained that is safe and fit for purpose to the Council's satisfaction. The Council's expertise on access under building law can be brought to bear to satisfy this requirement.
7. In the first step of determining this proceeding, I found that there was no need for a requirement that the Council manage the facility. In support of that finding, I referred to the benefits of an enforceable management plan. I give weight to that finding in the merits review.

1. Dr Kirkham says there is a real risk community facility permit conditions will not be complied with. The Council has granted permission to use the community facility subject to conditions. I cannot therefore refuse to grant permission for that use based on a risk that conditions will not be complied with.
2. The critical point is that the conditions require the community facility to be used in accordance with a community facility management plan. After that plan is prepared by GFM or its agent and after it is approved by the Council, any non-compliance with the provisions of that plan is a contravention of the permit and will be subject to possible prosecution or other enforcement action.

1. The respondents have not persuaded me that permission to construct buildings and works should be refused on grounds that a significant community benefit cannot be achieved or should be granted subject to materially different conditions.

1. In summary, the Council's decision requires the following infrastructure upgrades or contributions.[86]
2. First, condition 10(a) requires the owner to enter an agreement to provide that the owner will:

Prior to the occupation of the development, make a monetary contribution to Council for the amount of $500,000 for the purpose of Council's Chapel Street Transformation Project (or similar) in exchange for the agreed building height.

1. Second, condition 10(b) requires the owner to enter an agreement to provide that the owner will:

Further fund the streetscape and public realm works in front of the site and in front of the adjoining site to the north at 1 Forrest Hill as shown on the endorsed plans.

1. GFM disputes condition 10(a) but does not dispute condition 10(b).
2. There is an uncertain reference in condition 10(a) to 'agreed' building height. I will proceed on the basis that that height is the 'required' building height under condition 1(x), being, in effect, four storeys lower than the height in the decision plans and two storeys lower than the height in the substituted plans.
3. The legal landscape for infrastructure contributions has changed since the Council's decision.
4. After the date of the Council's decision and before the start of the hearing of this proceeding, a relevant amendment was made to the planning scheme. On 23 August 2023, provisions to implement the Stonnington Municipal Wide Development Contributions Plan 2020 ('the DCP') commenced. The provisions apply to the subject land (and all other land in the municipal district) in a Development Contributions Plan Overlay (a 'DCPO').
5. The DCPO imposes a development infrastructure levy (a 'DIL') on all new development of a kind that includes the proposal in this proceeding and a community infrastructure levy (a 'CIL') on 'increases to residential developments'. According to the Council, the DIL funds 'roads, cycling infrastructure and footpaths, drainage and public realm improvements' and the CIL funds childcare centres, maternal and child health services, recreation and sporting facilities, libraries and shared community facilities'.[87]
6. Neither the Council nor GFM tendered a reliable estimate of the quantum of the DIL and CIL for either the proposal in the substituted plans or the proposal that is subject to the conditions in the Council's decision. There were some suggestions that the quantum was about $100,000 less than the condition 10(a) amount.
7. The Council submits the contribution in condition 10(a) is necessary because the DIL and the CIL are now a separate statutory requirement and are not linked to whether or not a building exceeds a preferred maximum height.
8. GFM opposes condition 10(a) on the following grounds. First, it is a prohibited condition under section 62(6) of the PE Act. This is a legal ground. Second, it does not relate to the proposal in the substituted plans or as required to be amended to meet condition 1(x) and was calculated by the Council on the decision plans. This is a merits ground.
9. The Council officers' report states GFM offered to pay $500,000 towards the 'full transformation of Chapel Street' as part of the permit application and before the Council made its decision.[88] The Council's submissions in this proceeding said the offer 'would have' contributed towards the proposal providing a significant community benefit under clause 4.4 of ACZ1. According to the Council, the condition in effect crystallised the offer.
10. In its grounds opposing the condition, GFM does not refer to or acknowledge its offer. It does not expressly dispute it made the offer and therefore I will proceed on the basis that it made the offer. I make no finding about the robustness of the offer. I will proceed on the basis that it was not made in a deed or otherwise in a legally enforceable agreement.
11. Prima facie, there is something less than acting in good faith for GFM to oppose a requirement to make a contribution that it offered.
12. Nonetheless, the condition is prohibited under section 62(6) of the PE Act. Under that subsection:

The responsible authority must not include in a permit a condition requiring a person to pay an amount for or provide works, services or facilities except -

(a) in accordance with subsection (5), section 46N(1) or 46GV(7);

...

1. Sections 46N(1) and 46GV(7) are not relevant for present purposes, but are relevant for a subsequent purpose to which I will shortly return. The relevant paragraph in subsection (5) for present purposes is paragraph (b), which provides:

In deciding to grant a permit, the responsible authority may:

(b) include a condition requiring specified works, services or facilities to be provided or paid for in accordance with an agreement under section 173; or

...

1. Condition 10(a) does not come within section 62(5)(b) because, although the requirement is in accordance with an agreement, the works are not 'specified'. The condition refers to 'works in the Council's Chapel Street Transformation Project (or similar)'. This is a general and not specific description of the works.
2. I must therefore delete condition 10(a) on legal grounds and it is unnecessary to consider GFM's merits grounds.
3. However, as I have stated, the DCPO now applies. Under the DCPO, a permit must 'include any conditions required to give effect to any contributions or levies imposed, conditions or requirements set out in the relevant schedule to this overlay'.[89]
4. Neither the Council nor GFM explained to me the provisions of the DCP. On my reading of the DCP, the strategic basis for the DCP includes the Chapel Revision Structure Plan and the Chapel Street Masterplan ('the Masterplan').[90] The Masterplan identifies and prioritises public domain upgrades and assists in implementing the former. In particular, it:

... includes a number of initiatives relating to improving the public realm and open space of the Chapel Street Activity Centre and has informed several public realm and open space projects listed within the DCP.[91]

1. I am therefore satisfied that the DIL and CIL will implement some or all of the infrastructure in the 'Chapel Street Transformation Project (or similar)' referred to in condition 10(a). I therefore do not agree with the Council that the condition 10(a) and the DCP contributions are not linked.
2. As part of the conditions review, I will therefore direct that the permission to construct buildings and work must contain a condition requiring contributions in accordance with the DCP.

1. The planning scheme has various objectives and requirements relating to internal amenity of dwellings. Ms Ring's evidence included a comprehensive assessment against the clause 58 objectives relevant to internal amenity.[92] I will confine my findings only to matters in dispute.

1. The proposal does not include practical or useable communal outdoor open space. Ms Ring's evidence is the required minimum of 30 square metres of this this form of open space in Standard D7 is therefore not met.
2. Dr Kirkham opposed the granting of any variation from the standard for outdoor communal space. He submits that the building footprint (in a tower only format) must be significantly smaller and confined to the northeast corner of 671 Chapel Street, resulting in the balance of the land (about three quarters of that area, being about 1,500 square metres) being set aside for communal outdoor space.
3. In addition, Dr Kirkham submits additional outdoor communal space should be provided on the roof of the building, which would take the total area for this space to nearly 2,000 square metres.
4. I support a variation having regard to the relevant decision guidelines.[93]
5. First, in considering the 'design response', it is relevant that the proposal includes indoor communal open space comprising a swimming pool (253 square metres), gym (136 square metres) and 'amenities' (411 square metres) on level 1. This significantly exceeds the minimum of 220 square metres of additional outdoor or internal space in Standard D7.
6. Dr Kirkham submits little or no weight should be given to this indoor provision because 'there are too many underused indoor spaces' in the vicinity of Chapel Street. There was no evidence for this submission. The Council did not support this submission.
7. Second, in considering policy in the planning scheme, the standard applies broadly to apartments in most residential and commercial zones and there is greater justification for a variation for development in an activity centre in which very intensive development is encouraged.
8. Third, having regard to 'the availability of and access to public open space', the apartments will be only about 100 metres from extensive linear public open space off Alexandra Avenue and along the Yarra River.[94]
9. I also take into account that the contributions the owner will need to make to comply with the DCP are designed to assist in provision of more public open space in the vicinity of Chapel Street.
10. I therefore find the objective for communal open space is met and a variation to part of Standard D7 is justified.

1. GFM disputes conditions 1(b), 1(c), 1(d) and 3(a).
2. Conditions 3(a) and 1(b) together require updated daylight modelling to demonstrate that 80% of apartment living rooms and bedrooms meet the Built Environment Sustainability Scorecard ('BESS') best practice standard and changes to the plans to accord with the recommendations of that modelling.
3. Conditions 1(c) and 1(d) seek to ensure that an acceptable level of Visual Light Transmittance ('VLT') is achieved by specifying minimum VLT and surface reflectance values of materials in the daylight modelling and require balcony wing walls and soffits finishes to be light coloured and a minimum specified reflectance.
4. I will deal with this issue in a later section of these reasons relating to Environmentally Sustainable Design.

1. The Council does not agitate any unreasonable external amenity impacts. Ms Ring's evidence included a comprehensive assessment against the clause 58 objectives relevant to external amenity.[95] I will confine my findings only to matters in dispute.

1. Dr Kirkham and some respondents advocated refusal of permission to construct buildings and works because GFM failed to include any arrangements for reasonable construction management.
2. At the hearing, I ruled that a planning decision could be properly made without a statement by (or evidence called by) a permit applicant on amenity impacts of construction, such as construction start and finish dates, hours of works, the number of building staff, number and location of temporary buildings such as site offices, noise from construction activities, the number and timing of truck movements bringing materials to and from the building site, closure of footpaths, soil deposition on streets, to name but a few.
3. I explained to Dr Kirkham that these arrangements are more closely managed under building law and/or local law made under the Local Government Act 2020 (Vic) and it is the practice of responsible authorities and the Tribunal to only include a condition in any planning permission for preparation of a construction management plan ('a CMP') if warranted in particular circumstances.
4. Dr Kirkham relied on more people working from home in this post-pandemic period and therefore greater potential impact of working hours construction activities on such people, as well as the scale of excavation for the basements.
5. Dr Kirkham considered my ruling as evidence of borderline apprehended bias that I reject. The President referred to claims of borderline apprehended bias in his decision on Dr Kirkham's reconstitution application to which I will briefly refer later in these reasons.
6. Although the Council does not have such a separate local law for construction activities, I observe that many construction activities are regulated in a broader local law.[96] The Council does not support a construction management plan and prefers construction be managed by the local law.
7. In any event, I would follow practice and include in this case a construction management plan condition having regard to the intensity of development in the vicinity of the subject land.
8. The Council's approval of a construction management plan is what is known as a 'secondary consent' under the permit and no notice to potentially affected persons is required. The Council may choose to informally consult before deciding a construction management plan.

1. There is no overshadowing objective in clause 58 relating to existing private open space (e.g. balconies) or habitable rooms in existing dwellings. Mr O'Dwyer and Ms Ring assessed the impacts under the relevant guidelines and their opinion is that the impacts are acceptable.
2. Some of the respondents who reside in north-facing apartments at 661 and 663-665 Chapel Street at levels at or below the maximum height of the proposal submits the overshadowing impacts were unreasonable.
3. Ms Buckley said she resides in a level 14 apartment at 661 Chapel Street and submitted that the proposal 'will ... block most of the sunlight that currently streams into our apartment ...' and would 'block all the natural light coming into [two of the] bedrooms ...'.
4. GFM's shadow analysis does not show shadow impacts on the vertical face of 661 and 663-665 Chapel Street. Nevertheless, it is reasonable to conclude from the analysis that any impact to Ms Buckley's apartment is limited to the morning at the September equinox. The impact is acceptable having regard to the planning objectives for the activity centre.
5. The only other overshadowing issue concerned the impact on the central lightwell and rooftop communal open space at CHES. Both these areas are located on the boundary immediately south of the proposal and are therefore materially impacted. GFM tendered an impact analysis during the hearing. Neither MHS nor any of the CHES occupiers objected to possible impacts.
6. The lightwell is covered by a semi-opaque skylight. The rooftop open space is at the western edge and receives sufficient solar access, particularly in the afternoon. Whether the building has a maximum height of 20 storeys or 18 storeys is irrelevant. This is because the impacts are similar even if a building with the same footprint and the preferred maximum height were to be constructed, which would also be exempt from notice and review rights.
7. There was muted concern about shadow impacts on the public realm. The ACZ1 requirements refer to avoiding additional shadows on east-west streets between 9 am and 3 pm at the equinox and minimising overshadowing of existing and potential future open space, village squares and urban plazas shown on the Precinct maps at the winter solstice. These requirements are not engaged by the proposal.

1. Some of the respondents who reside in north-facing apartments at 661 and 663-665 Chapel Street opposed the loss of some northern and northwestern outlooks.
2. The relevant building setbacks objective in clause 58 is 'to provide a reasonable outlook from new dwellings'. Standard D14 provides that 'buildings should be set back from side and rear boundaries, and other buildings within the site to ... provide an outlook from dwellings that creates a reasonable visual connection to the external environment'. This objective and standard do not apply to existing dwellings. The planning scheme does not seek to protect or preserve existing outlook or views from existing dwellings.
3. The ACZ1 interface guidelines are to provide separation between buildings for 'the protection of view lines'. I do not construe this guideline as seeking to preserve all viewlines from existing dwellings.
4. Some oblique outlooks to the west and northwest for north-facing apartments at 661 and 663-665 Chapel Street are preserved and existing apartments in those buildings closer to the western boundary are less impacted.
5. Greater rear boundary tower setbacks would marginally extend those outlooks but greater setbacks are not required having regard to considerations to which I have already referred.

1. Some of the respondents who reside in north-facing apartments at 661 and 663-665 Chapel Street also opposed what they submitted was an unreasonable loss of privacy from south-facing balconies and lower-sill habitable room windows in the proposed tower.
2. Those balconies and habitable rooms are set back six metres from the south boundary and a further 18 metres across the void above the four-storey CHES. In total, the minimum setback between existing and proposed sensitive parts of dwellings is about 24 metres.
3. The relevant standard in clause 58 relates to building setback and to limit views into habitable room windows and private open space of new and existing dwellings.
4. In conclusion, there would be no unreasonable overlooking.
5. Under standards applicable for apartment developments up to five storeys, the distance should be a minimum of nine metres for unscreened windows or balconies in new development.

1. The relevant clause 58 wind impacts objective is:

To ensure the built form, design and layout of development does not generate unacceptable wind impact within the site or on surrounding land.[97]

1. Standard D17 relates to this objective and is for development to not cause specified unsafe wind conditions and to achieve comfortable specified wind conditions in public land and publicly accessible areas on private land.
2. An FH-2 objective is:

To reduce wind turbulence at ground or podium level through using appropriate building forms and articulation of the building mass.[98]

1. There are related ACZ1 provisions such as creating pleasant, walkable and safe environments, and improving the public realm at street level.
2. GFM's permit application included a wind analysis dated September 2022 ('the wind analysis'). The Council's officers' report stated this analysis included a wind tunnel study model to assess the wind environment of pedestrian areas within and around the proposal. The report states that it found a general increase in wind activity, which is of course unsurprising. The report also concluded that wind conditions at critical locations would be suitable for passive use but some measures to reduce wind speeds were recommended but were not modelled in the analysis.
3. I provide this summary as background to:

(a) Condition 12 in the notice of decision, which requires further analysis to the Council's satisfaction in confirming 'that all measures specified in the [2022] report have been implemented in accordance with the approved plans'.

(b) Condition 1(a) in the notice of decision, which requires modifications to some apartment balconies in the northwest corner of the building and some other mitigation measures in the wind analysis to achieve the comfortable conditions standards in clause 58.

1. GFM does not dispute these conditions. It says the condition 1(a) modifications are included in the substituted plans.
2. None of the parties adduced expert wind evidence in the hearing.
3. It was unsurprising that Ms Ring relied on the wind analysis in expressing the opinion there would be no unacceptable wind conditions, but she conceded that she did not have a copy of the wind analysis and did not consider it carefully in forming her opinion.
4. Ms Box submitted the wind analysis is unreliable because it modelled the decision plans instead of the substituted plans. The unreliability is over-stated because the substituted plans lower the height and mass in the proposal. A tendered memorandum about the substituted plans from the authors of the wind analysis states the proposal would:

... effectively decrease the volume of redirected wind towards the lower levels [and the] reduction [in height] will significantly contribute to improving overall wind conditions.[99]

1. Some respondents referred to what they said was existing unreasonable wind impacts in lower level north-facing apartments at 661 & 663-665 Chapel Street, particularly balconies. They claimed the proposal would increase those wind impacts.
2. Ms Box submitted that figure 2B in the wind analysis show that wind speeds in the safety category would exceed safety levels at two points on the CHES roof (at 24.3 metres AHD) directly below north-facing balconies at 663-665 Chapel Street and below, further to the west, north-facing balconies at 661 Chapel Street.
3. In my opinion, the authors of the wind analysis have adopted a very conservative approach because the two points on the CHES roof are not publicly accessible.
4. The analysis states these points are 'generally not accessible and might be used for maintenance purposes only'.[100] There is a rooftop terrace at CHES but it occupies a relatively small part of the roof further to the west of the two points. Based on my site inspection, the roof at these two points is not 'publicly' accessible but, as stated in the analysis, it might be 'privately' accessible for maintenance purposes. So, there is a real doubt in my mind as to whether the unsafe conditions at these two points is a non-compliance with the standard.
5. In any event, the nearest balconies above the two points are about 4.7 metres away at 663-665 Chapel Street and about 3.3 metres away at 661 Chapel Street.[101]
6. Ms Box claimed the proposal would result in unacceptable wind impacts at those balconies, and the most affected would be Ms Jones' north-facing apartment at level 7 (the lowest residential level) at 663-665 Chapel Street.
7. I inspected Ms Jones' apartment on a day when there was little wind so I could not appreciate worst-case existing impacts. Nonetheless, as she submitted at the hearing, some wind seemed to funnel upwards between the multiple 'open' car parking levels below level 7 and the four-storey CHES building sited on or close to the common side boundary. The proposal clearly does not need to ameliorate this existing situation at 663-665 Chapel Street.
8. The relevant question is whether wind impacts on these balconies would exceed comfort levels set out in Standard D17. The standard may be met, having regard to the fact that the balconies are bordered by balustrading, wing walls and apartment doors and windows, and that speeds would be expected to be lower at points above the CHES roof.
9. Nonetheless, as the wind analysis is inconclusive and some of the balconies are engaged by the standard, I will modify condition 12 so that some further analysis is completed to demonstrate impacts will be acceptable at the balconies relevant to the standard.
10. The CHES rooftop terrace is publicly accessible communal open space and is to the west of the two rooftop points (numbers 55 & 56) in the wind analysis. The terrace is engaged by the standard, but following my inspection of the terrace, it is highly likely that it complies with the safety criteria, given its built features, including eastern entry structure, pergola, solar panels, elevated balustrading and landscaping.
11. Dr Kirkham submitted the wind impacts would also have acoustic impacts that would unreasonably affect the amenity of the balconies. He relied on tendered audio recordings of wind noise outside at unspecified points at 661 Chapel Street but these were not probative, even of existing conditions.
12. Ms Box also submitted that the wind analysis shows that there would be unsafe conditions and a failure to achieve comfortable conditions in the MHS sports fields about 84 metres from the boundary of the subject land. It suffices to state this does not warrant any building redesign because, at that distance, the standard does not apply.

1. There is one additional public realm matter that I will briefly address, concerning the awning on the Chapel Street elevation.
2. The public realm interface guidelines in the planning scheme encourage provision of 'continuous and functional weather protection for pedestrians without compromising the existing or future presence of street trees'.[102] As well, the Precinct objectives seek to ensure development 'incorporates a continuous awning'.[103]
3. The proposal includes a 3.15 metres deep awning about three metres above the ground on this elevation. As the building is set back from the frontage of the subject land, the awning does not project over Chapel Street but would project over the widened footpath accessible to pedestrians. The awning is discontinuous in that are small gaps (about 200 mm) between the seven sections of the awning.
4. Condition 1(z) in the Council's decision requires amendments to the substituted plans that show:

Provision of a continuous canopy along the building frontage for weather protection.

1. At the hearing, the Council says that, although the canopy is not continuous, the awning in the substituted plans is acceptable because the intent of condition 1(z) is met 'through the inclusion of a deeper canopy area' and no longer requires the condition.[104]
2. Having regard to the design of the awning, including its dimensions, the way it fits into the architectural composition and the relatively minor gaps in the awning, the awning is acceptable and I will delete the condition.

1. In the previous decision, the Tribunal found the tower rear setback of 1.83 metres required 'further consideration' to ensure equitable development of the MHS site, which it recognised was constrained by its heritage significance.[105]
2. GFM has responded to this finding by increasing the tower setback from the rear boundary in the proposal to between 4.8 metres and 7.5 metres, being an average of at least six metres.
3. The ACZ1 interface setbacks guidelines seek to provide 'appropriate separation between buildings for ... the provision of equitable development opportunities'.[106]
4. The interface setbacks requirements help achieve this objective. The preferred minimum setback of six metres is met, having regard to the average setback in the proposal. As I have already stated, the guidelines provide that if land adjoins a Heritage Overlay, the preferred minimum setback should be increased.[107]
5. Some of the respondents submitted the proposal failed to respond to the previous decision and did not ensure equitable development opportunities for the MHS site. In applying the guidelines for land in a Heritage Overlay, I need to consider relevant circumstances, which include:

(a) The Council's acceptance that the tower setback from the rear boundary is a satisfactory response to the previous decision and the guidelines.

(b) MHS's view as to whether the proposal would remove opportunities for equitable development opportunities. Having received notice of GFM's permit application and not objecting to the Council, having prepared a short statement in support of the proposal, and not participating in this proceeding, MHS's acceptance may be implied.

(c) Although the MHS site has heritage constraints that would restrict construction of buildings west of the 1920s main building, the MHS site is large and there are opportunities for new buildings to the west and south-west of the subject land, even if some demolition (e.g. of the electrical substation) might be involved.

1. The proposal is a satisfactory response to the equitable development guidelines.

1. I have briefly referred to the relevant features of the proposal, being a circular drop off driveway on the north side of the building that also provides access to the basement ramp. The basement comprises four levels and provides 162 car spaces for residents and four spaces for other uses, including 28 in double stackers on the first basement level. 24 of the 28 spaces are designed for EV charging.
2. I have also referred to GFM seeking permission under clause 52.06-3 of the planning scheme to reduce the required number of car spaces. The parties do not dispute the reduction of spaces for office and food and drink from 46 to 4.
3. It is Council policy to prioritise non-private vehicle use as means of transport in the vicinity of the subject land. The Council considered the advice of its traffic engineers and found the proposal acceptable and granted permission for the reductions. The Council included some conditions but they did not require material changes.[108]
4. The main issue in dispute, as contended in considerable detail by Dr Kirkham, is whether the parking provision is excessive and whether a greater reduction from statutory rates in the provision of spaces for residents should be required.
5. Other issues are whether vehicle movements will unreasonably add to traffic congestion, and whether there will be a loss of on street parking.
6. Dr Kirkham submitted and relied on a six-page document filed as part of his closing submissions. It was an analysis he prepared of usage of basement car parking in the apartment block in which he lives at 661 Chapel Street. In that block, he says there are 122 basement spaces for residents of 98 apartments. He says his data was collected over 62 recent days. I will not set out all the results. It suffices to state that he says that nearly half the spaces are only used twice per week and that 25 car share spaces would satisfy demand in his building.
7. Dr Kirkham submits that there should be no allocated spaces for residents and that the reduction in the number of spaces for residents must be extended to zero. Dr Kirkham submits that 25 EV car share spaces would be a satisfactory provision for all residents. This would involve removing of three levels of the basement and providing the car share spaces in one basement level.
8. Dr Kirkham submits his alternative provision would make apartments more affordable and would reduce carbon emissions in constructing the car parks. I will refer to the latter consequence later in these reasons.
9. GFM relies on the evidence of Mr Kiriakidis that the parking provision and traffic impacts are acceptable having regard to the provisions of the planning scheme.
10. Mr Kiriakidis carried out a brief demand assessment which he says supports a reduction and brief assessment of the parking provision.
11. He accepts that there will be a lower level of car use by residents in this proposal, as is the case with most inner urban areas, and especially for journeys to and from work (ie in peak hours). This is based on traffic generation surveys. Mr Kiriakidis' opinion is that there is a convenience to car ownership that does not translate to higher usage.[109] That opinion, in general terms, is consistent with Dr Kirkham's submissions. Mr Kiriakidis also relies on significant provision of bicycle parking spaces and bicycle facilities
12. An objective throughout the Precinct (not just FH-2) is to 'reduce car dependency and car parking rates within Forrest Hill' and to 'reduce vehicle congestion by encouraging sustainable forms of transport [and] car free development'.[110]
13. The reduction for dwellings that is sought is relatively modest, i.e. a reduction of 17 spaces or about 10%. The provision exceeds the 0.66 spaces per dwelling rate in an amendment to the planning scheme that the Council had proposed for the Precinct but had lapsed several years ago.[111] There is no proper basis to require this reduced rate in this proceeding.
14. I must decide whether I prefer the relatively modest reduction in required car spaces for residents that is supported by the Council and Mr Kiriakidis (and not opposed by most other parties) or the extensive reduction from 162 allocated spaces to 25 EV car share spaces advocated by Dr Kirkham. I have no basis in the submissions or evidence for requiring something in between or that is otherwise different.
15. The proposed reduction is a modest gesture in responding to policy. There are policy grounds for thinking a greater reduction was warranted and should have been proposed, at least based on Mr Kiriakidis opinion that, among other things, the demand for use of the spaces will be lower.
16. Nonetheless, I cannot support Dr Kirkham's submissions, although the greater reduction has policy support.
17. First, they are a significant change with unknown consequences for the design and operation of the basement and for the proposal. I do not read policy as supporting what is in effect a provision of about 0.2 spaces per dwelling (across the proposed range of apartments) for a multi-storey largely apartment development.
18. Second, there are procedural difficulties. The six-page analysis was filed with Dr Kirkham's 36-page closing submission. Both went beyond a reply to GFM's closing submissions on matters that Dr Kirkham had addressed in his primary submissions. The closing submission included, in effect, criticism of the demand modelling in Mr Kiriakidis' evidence on which GFM relies. As Mr Kiriakidis and GFM had no opportunity to consider this material, it would be procedurally unfair for me to give it any weight.
19. On conditions submissions, Dr Kirkham sought a condition that would require, in effect, removal of at least three basement levels, provision of at least 21 EV car share spaces with appropriate 'fire protection', provision of share EVs for those spaces, maintaining access to those vehicles - all of which must be 'certified to the Tribunal' each year the building is occupied. I will not include a condition to that effect.
20. In relation to 'fire protection', Dr Kirkham in his primary submissions and his cross examination of witnesses referred to some EVs in some places in the world igniting into fireballs when left too long charging and the particular risk this posed in a double stacker basement setting. To mitigate the risk, he urged larger dimensions for those spaces (an extra 900 mm width and an extra two metres in length), among other things.
21. If the fire risk is related to faulty or sub-standard batteries, that is not a reason to make the design changes. There is little merit in imposing standards for worst case scenarios that would not apply to most EVs or to batteries that would be replaced in the normal course.
22. On the 'certification' suggestion, it hardly needs to be stated that the Tribunal has no role in ongoing monitoring of conditions. If there is evidence of contravention of a condition, a person might lodge an enforcement order application which the Tribunal may be required to determine.
23. On whether the provision of parking will add to traffic congestion, I accept Mr Kiriakidis' evidence that the proposal is expected to generate a maximum of 26 vehicle movements in each of the road network peak hours, which equates to less than 2% of existing Chapel Street volumes and would hardly be noticeable.
24. On whether the proposal will impact street parking, Mr Kiriakidis points out that that the replacement of the existing crossover at the northern end of 671 Chapel Street with the separate entry and exit crossovers would result in a loss of two on street spaces. I accept his opinion that a loss of two spaces is acceptable having regard to current parking restrictions and existing policy, including policy for residential visitors spaces in the principal public transport network area.
25. On submissions on conditions, Dr Kirkham also sought a condition that required amendment of the ground floor and basement plan to remove the circular driveway/drop off. He claimed this was designed purely to provide a de facto MHS student drop off area, given the new nearby access on the south side of the gymnasium. His condition also sought a 'small' basement ramp to the front of the building off Chapel Street. As a consequence, he wanted the drop area to be entirely pedestrianised.
26. I cannot include this condition for various reasons, including that Mr Kiriakidis was not questioned about it, that it would adversely affect access for community use by non-MHS users, and would involve a major building redesign.

1. In this section of the reasons, I consider whether the proposal is a satisfactory response to the planning scheme's environmentally sustainable development provisions.

1. I will not set out all the relevant provisions. They may be characterised as policies, guidelines and objectives.
2. The policies include the following:

(a) It is policy to achieve building design and siting outcomes that support environmentally sustainable development.[112] The policy sets out strategies around energy performance, resource recovery, use of recycled materials, water efficiency, stormwater and landscaping.[113]

(b) It is a policy objective to 'achieve best practice in environmentally sustainable development from the design stage through to construction and operation'.[114]

(c) It is a policy strategy to 'facilitate development that minimises environmental impacts' and to encourage environmentally sustainable development that 'adopts best practice through a combination of methods, processes and locally available technology that demonstrably minimise environmental impacts', particularly in the areas of energy performance, integrated water management, indoor environment quality, transport, waste management, and urban ecology.[115]

(d) For a 'mixed use' development (such as the proposal), it is policy to 'consider, as relevant' various specified tools such as Built Environment Scorecard ('BESS'), Green Star, the Nationwide House Energy Rating Scheme ('NatHERS') and Model for Urban Stormwater Improvement Conceptualisation ('MUSIC') to support a sustainability management plan ('a SMP').[116]

1. Environmentally sustainable design ('ESD') guidelines apply in the ACZ1. They seek to 'incorporate environmentally sustainable design measures in the areas of energy efficiency, water resources, indoor environment quality, stormwater management, transport, waste management, innovation and urban ecology'.[117]
2. Some ESD-related objectives are included in Statewide apartment development provisions. A development 'must' meet these objectives. Some standards relate to these objectives and a development 'should' meet these standards.[118] Decision guidelines are specified.
3. The policies emphasise the achievement of 'best practice'. They do not define or specify what is best practice and how it must be achieved.
4. The planning scheme contains no ESD-related prescriptive requirements either of a mandatory or discretionary nature. There are no mandated performance outcomes or standards.[119]
5. ESD related requirements can and do apply under other statutory regimes, such as building law, but it is unnecessary to refer to or consider them for present purposes.

1. In accordance with these provisions, GFM engaged consultants to prepare a SMP as part of the application materials given to the Council.[120]
2. The Council was broadly supportive that the SMP responded satisfactorily to ESD provisions. The relevant extract from the Council's officers' report states:

The building has generally been designed with the intent of meeting the objectives of Council's ESD Policy at Clause 22.05 and Stormwater Management (WSUD) Policy at Clause 22.18, as outlined in the submitted Sustainability Management Plan (SMP). The development incorporates a number of good ESD commitments including:

• A 5 Star Green Star Rating (formal certification) under the GBCA Green Star Buildings V1 tool.
• 100% of the base building's energy will be obtained through renewables.
• Provision of 5 EV charging stations with commitment of 50% of the car parks to be 'EV ready'.
• A target recycling rate of 90% of construction and demolition waste.

Council's ESD Officer is supportive of the proposal, subject to conditions of permit which seek to ensure that the development will achieve an appropriate sustainable design outcome. These conditions are included within the recommendation.

1. The Council's decision included the following two relevant conditions:

1. Prior to the endorsement of any plans pursuant to Condition 1 a Sustainable Management Plan (SMP) must be submitted to and approved by the Responsible Authority. When approved the SMP will be endorsed and will then form part of the permit. The development must incorporate the sustainable design initiatives outlined in the SMP to the satisfaction of the Responsible Authority. Amendments to the SMP must be incorporated into plan changes required under Condition 1. The SMP must be generally in accordance with the report prepared by Stantec dated 6 May 2022, but modified to include the following:

(a) Updated daylight modelling, inclusive of but not limited to levels 3, 7, 12, 13 and 20, demonstrating that a minimum of 80% of the living rooms and bedrooms in the development meet the BESS (Built Environment Sustainability Scorecard) Best Practice Standard for daylight. > > (b) External shading devices to north and west facing glazing. > > (c) Preliminary NatHERS certificates provided for one apartment on each level assessed (apartment L12-05-2D, L19-01-3A and L21-01-3E). > > (d) Provision of Carbon Monoxide (CO) monitoring to the basement carpark. > > (e) A brief statement outlining construction measures to prevent litter, sediments and pollution entering the stormwater system. The statement should include the types of measures required to be implemented on site (such as adoption of 'Keeping our stormwater clean' guide by Melbourne Water and typical measures suggested). > > (f) A brief statement outlining operational and maintenance measures to check the effective operation of all stormwater systems. > > (g) Demonstrate how Best Practice measures from each of the 10 key Sustainable Design Categories of Stonnington Council's Sustainable Design Assessment in the Planning Process (SDAPP) have been addressed. > > (h) Identify relevant statutory obligations, strategic or other documented sustainability targets or performance standards. > > (i) Document the means by which the appropriate target or performance is to be achieved. > > (j) Identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring. > > (k) Demonstrate that the design elements, technologies and operational practices that comprise the SMP can be maintained over time.

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

1. Prior to the occupation of the development approved under this permit, a report from the author of the Sustainability Management Plan, approved pursuant to this permit, or similarly qualified person or company, must be submitted to the Responsible Authority. The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the Sustainability Management Plan have been implemented in accordance with the approved plan.
2. GFM has applied to review condition 3(a).

1. GFM engaged Mr Talacko to provide an independent opinion on the proposal's ESD outcomes. Mr Talacko did his own assessment. He considered BESS, Green Star, NatHERS and MUSIC as the relevant tools from those specified in the planning scheme for the proposal because he said they were able to assess all the ESD elements in policy. I agree those tools were relevant. I agree they address the relevant elements.
2. Mr Talacko assessed energy ratings for a representative sample of apartment using NatHERS. In his opinion, the 7.5 star rating exceeds the Council's 'best practice' 6.5 star rating and complies with the energy efficiency standard in clause 58 of the planning scheme.
3. Mr Talacko carried out MUSIC modelling and concluded the best practice standard in the Urban Stormwater Best Practice Environmental Management Guidelines can be met, having regard to such features such as rainwater harvesting and treatment, rainwater storage tanks, reuse of captured water for toilet flushing, and a (modest) rain garden.[121]
4. Mr Talacko also assessed daylight in apartment habitable rooms on levels 3, 4, 5, 10, 11, 12, 13 and 16. The Council disagreed with his assessment and I will address the dispute shortly.
5. Most of his evidence concerned whether the substituted plans provided for a building design that achieves ESD best practice having regard to the Green Star tool. He used the Green Star framework to assess best practice achievement because 'its rating scale had been determined by reference to industry practices'.[122]
6. The conclusion of Mr Talacko's assessment was that the building design 'has the preliminary design potential to achieve a 5 star Green Star standard which is defined as Australian Excellence by the Green Building Council'.[123] This exceeds the 4 star Green Star standard which is defined as 'Best Practice' by the Green Building Council.
7. In forming his opinions that best practice could be exceeded, he pointed out this was mainly due to all electric service (no gas); 7.5 Star NatHERS average; high performance façade glazing; rainwater harvesting; rooftop solar PV system with peak capacity of 70Kw; sustainable transport bicycle facilities; energy efficient mechanical and electrical system; and water efficient fixtures and fittings.
8. GFM relied on the evidence of Mr Talacko in submitting that the proposal 'meets and materially exceeds' the relevant objectives, including best practice.

1. Dr Kirkham submits Green Star is a deeply flawed ESD tool and should not be used to benchmark for best practice. He says it should not be considered as a ESD tool. Among Dr Kirkham's many criticisms, he says Green Star awards points 'for all kinds of things that are little to do with sustainability', the scoring lacks 'alignment', it discourages innovation, it fails to consider carbon dioxide or traffic issues, and that achieving 'best practice' under the Green Star is 'too easy'.
2. Furthermore, he says the Green Building Council (that prepared the Green Star tool) has been 'captured by the building industry' and therefore the tool lacks any independence. He says that obtaining a Green Star rating of at least 4 stars is no evidence the best practice standard is met. It only offers 'at best some suggestions' about matters to consider. He also said it 'promotes bad practices', such as unnecessary car parking and use of concrete. As a result, he says Green Star facilitates 'greenwashing'.[124]
3. I accept there can be differences of opinion about what constitutes 'best practice' in present circumstances, as the term is not defined.
4. Best practice is necessarily an evolving concept. Best practice would be higher now than years ago. I understand the Green Star tool is reviewed by the Green Building Council and has been amended from time to time.
5. The Green Star tool has been incorporated into all Victorian planning schemes as an appropriate ESD tool. If Dr Kirkham considers it was always an inappropriate tool or is now an inappropriate tool having regard to contemporary thinking, he should agitate for a change in the law by requesting its removal as a tool in planning schemes. I cannot ignore the tool. Alternatively, he could promote amendment of the tool to address what he believes is its shortcomings or he could promote an alternative tool.
6. Dr Kirkham does not advocate use of alternative tool to guide best practice assessment.
7. His submissions are to the effect of 'if modifications to the proposal could provide better sustainability outcomes, those modifications must be made to achieve best practice'. Those submissions are flawed. That is illustrated by reference to design failings identified by Dr Kirkham.

1. Dr Kirkham submitted there are three main building design failings in the proposal that result in a failure to achieve best practice.
2. First, Dr Kirkham submits the four basement levels provide unnecessary car parking and will require massive carbon emissions to construct, including carbon embodied in concrete. He says the proposal should be modified to include a single level basement in which the owner or building manager should provide about 25 EVs for residents to share.[125]
3. Second, Dr Kirkham submits 'modular glulam construction' (in what I understand is use of glued timber laminates) is a more sustainable alternative than concrete, is increasingly used in multi-storey buildings in Australia and overseas, and should replace the concrete construction material in the proposal.
4. Dr Kirkham may be correct that replacing a four-level basement providing spaces for the parking 130 vehicles with a single-level basement with 25 EV share cars and a modular glulam construction would be a more sustainable outcome.
5. However, it does not logically follow that the proposed basement parking and the proposed concrete construction means that the proposal cannot achieve best practice.
6. I also give some weight to Mr Talacko's evidence that timber construction is not the only way to reduce embodied carbon, and to Mr O'Dwyer's evidence that timber construction is currently less suitable for residential use having regard to acoustic issues.
7. Best practice requires assessment and judgment as to whether the proposal can achieve superior outcomes to those under current industry practice. It requires consideration of what Mr Talacko describes as a 'reference case' and the extent to which a proposal can achieve improvements to that reference case. I understand that Mr Talacko's reference case is a building design similar to the proposal built to basic industry standards, including meeting requirements under current building law. Mr Talacko's opinion is that the proposal can achieve a 20% improvement upon the reference case.
8. Taking Dr Kirkham's approach to its logical conclusion, a building design comprising a small timber, single-storey dwelling with no car parking and a large surrounding garden would be a more sustainable outcome for the subject land and is therefore best practice. The approach is illogical.
9. It ignores the necessary focus on whether the proposal is acceptable. The Supreme Court has established that planning permission may be granted if the proposal is held to be an 'acceptable' rather than 'ideal' outcome having regard to the relevant considerations in the planning scheme.[126] It also ignores the need for integrated decision making by balancing objectives. It ignores the planning objectives for the Precinct.
10. Dr Kirkham submits the potential to reach a 20% level of improvement on a reference case is entirely speculative based on Mr Talacko's agreement that his assessment is a draft and has not yet been 'validated'. Dr Kirkham seizes on this admission as 'fatal' and shows Mr Talacko's evidence is unreliable.
11. However, Dr Kirkham overlooks that the assessment that must be made is on the proposal based on the material in the permit application that has been filed for a planning decision. A wealth of further highly-complex detail must be prepared for many reasons, including obtaining building approval and obtaining 5 star certification. That level is not required for a planning decision.
12. Third, Dr Kirkham submits the proposal must have a significantly reduced building footprint to achieve best practice. He tendered a sketch showing a footprint of about one quarter of 671 Chapel Street (i.e. a site coverage of about 25%). The footprint is located in the northwest corner of the site and is bordered to its west and south by communal or public open space. It replaces the podium tower format with a taller tower format. In addition, it replaces the rooftop solar PV array with communal 'green space'.
13. Dr Kirkham submits the overall environmental footprint would therefore be minimised. Again, the submission overlooks the fundamental point that the Tribunal's task is to assess the proposal and is not to assess alternative building designs. As I said to Dr Talacko at the hearing, the subject land could be developed in many ways. The previous decision assessed one way. This proceeding is assessing a different way.
14. Putting aside the fact that Dr Kirkham's sketch is not a proper planning proposal and would result in more exceedance of the preferred maximum building height, I cannot consider his alternative design, even if I thought it is preferable in some way. I told Dr Kirkham that I could not and would not consider his alternate proposal. I reject Dr Kirkham's submission that a 'failure to seriously consider my proposal as a reasonable alternative would be an act of considerable vandalism to the area of Forrest Hill'.[127]
15. I should add that Dr Kirkham promotes his alternative as preferable on grounds other than ESD, because he said (among other things) that it minimises external amenity impacts and improves outlooks from existing nearby apartments. He also claims it would be commercially viable.
16. Dr Kirkham's three main design failings are not a basis to refuse planning permission.
17. As I have stated, the Supreme Court has established that permission may be granted under a planning scheme if the proposal is assessed as an 'acceptable' rather than 'ideal' outcome having regard to the relevant considerations in the planning scheme.

1. Dr Kirkham submits Mr Talacko's evidence is flawed for wide ranging reasons. I will briefly mention three of them.
2. First, Dr Kirkham claims Mr Talacko's evidence is no more than speculation, in the absence of computational modelling that must be undertaken by the decision maker (now, the Tribunal) or by independent experts appointed by the decision maker, the costs of which must be met by a permit applicant.
3. Second, he claims Mr Talacko may have expertise in 'physically implementing an initiative' but is not an expert on what is 'best [sustainability] practice'. Mr Talacko is qualified and experienced in ESD assessments. If I must decide whether to prefer Mr Talacko's opinions to Dr Kirkham's personal views, the former must prevail.
4. Third, Dr Kirkham claims Mr Talacko lacks independence because his evidence supports 'a developer' (GFM in this case) and because Mr Talacko is an 'advocate' not an expert. These claims are misguided. In this proceeding, Mr Talacko is not part of the 'GFM team' and he is not an advocate for GFM. He did not prepare the SMP for GFM. He has not assisted GFM in seeking planning permission. He was engaged after the Council's decision to provide evidence for the hearing. He is well aware of his primary obligation to the Tribunal and not to GFM. He has a good understanding of the Tribunal's practice note regarding the duties of experts and has complied with it.[128]
5. I have considered the totality of Mr Talacko's evidence. Mr Talacko made appropriate concessions about how the Green Star tool might be enhanced to realise developing concepts of best ESD practice. Mr Talacko indicated the matters that might be covered in any enhancements but recognised the significant policy and technical issues that would need to be first resolved.
6. Nevertheless, Mr Talacko's evidence is persuasive because it:

(a) proceeded on the basis that the planning scheme identified the Green Star tool as acceptable in determining what is best practice having regard to industry practice;

(b) was based on a thorough consideration of all current relevant factors in a proposal to be assessed under the tool;[129] and

(c) reasonably concluded that the proposal could achieve a Green Star rating that exceeded 'best practice' for buildings.

1. It is relevant to add that Mr Talacko's ultimate opinions about best practice were also informed by an assessment of the proposal under other tools such as BESS and NatHERS and having regard to the energy efficiency requirements in clause 58.

1. After cross-examining Mr Talacko, Dr Kirkham made submissions to the effect that the Tribunal cannot rely on Mr Talacko's evidence and, consequently, the Tribunal must independently consider whether the proposal achieves ESD best practice by understanding the science behind ESD and undertaking computer modelling of the relevant factors.
2. He claimed I was not qualified to carry out this task because I did not have science qualifications and experience. The submission caught me by surprise but the effect of my response at the hearing was that while I accept I did not have those qualifications and experience, I did not accept the need to have them to determine the proceeding.
3. Shortly afterwards, Dr Kirkham applied for a reconstitution of the Tribunal. The President heard and rejected the reconstitution application and gave detailed reasons.[130]
4. For completeness, Dr Kirkham expanded on what qualifications the Tribunal needed in this proceeding. They included an 'ability to engage with substantive mathematics and statistics' and to deal with an 'optimisation problem which requires computation and modelling'. They also included an ability to understand that the Green Star tool 'is based on pseudoscience and is greenwashing'.[131] In oral submissions, he added that the Tribunal would need to 'do science, which would include writing some basic computer code and running statistics and computer modelling'.[132]
5. In rejecting reconstitution on these qualification grounds, the President found that Dr Kirkham's submissions were misconceived.
6. Dr Kirkham had mischaracterised the Tribunal's task which was whether the proposal realised the principles of environmentally sustainable development and achieves best practice in environmentally sustainable development and adopts best practice, as set out in clause 15.02-1L-02 and schedule 1 to clause 37.08 of the planning scheme.[133] These are the provisions to which I have referred in these reasons.
7. The President said Dr Kirkham may wish to use this proceeding as a 'vehicle to embark on a "wholesale attack of the Green Star system" and promote the acceptance of alternative schemes' but that misunderstands the Tribunal's true task.[134] The President set out that task, which I summarise as to consider the factual and expert evidence, assess its weight and reliability, receive submissions on its reliability 'including by critically examining any tools or models (such as the Green Star Scheme)', and determine if the proposal realises the relevant principles in the planning scheme.[135]
8. I have had regard to Dr Kirkham's criticisms of the Green Star tool, as encouraged by the President. I recognise that it is not a perfect assessment tool. I recognise that it must evolve and adapt to scientific advances and greater understanding, as it has and as it continues to do.
9. The President made clear that the Tribunal does not need to 'reach beyond the evidence' by, for example, 'undertaking [its] own qualitative and quantitative assessment of whether the proposal realises [those principles].[136]
10. I have carried out the task in the manner identified by the President. I have not undertaken my own qualitative and quantitative assessment of whether the proposal realises the relevant principles and achieves best practice, because that is not required and it would not accord with principles of procedural fairness.
11. My overall finding is that although a wide range of changes of varying significance could be made to the proposal to enhance its ESD credentials, such changes are unnecessary to realise the relevant principles and achieve best practice.

1. I have already referred to the effect and reasons for conditions 1(b), 1(c), 1(d) and 3(a) and that GFM disputes these conditions.[137]
2. The Council maintains the conditions 3(a) and 1(b) are based on indoor environment quality[138] and BESS best practice standards for daylight access to living rooms and bedrooms.
3. The Council submits GFM has not used default reflectance values, but that they should be used because 'internal finishes are beyond the control of statutory planning', 'internal finishes can change over time', 'internal finishes are generally decided later in the building process', 'predictive simulation models are simplified representations and not necessarily reflective of real-life representations' and 'furniture and fixtures are not part of the model geometry'.[139]
4. GFM opposes conditions 3(a) and 1(b). It contends they are vague and unreasonable. It states the proposal will be constructed to a 5 star Green Star rating which contemplates performance based measures for achieving acceptable daylight outcomes.
5. GFM relies on Mr Talacko's evidence.[140] Mr Talacko estimated daylight levels using 'Radiance software' which he says is widely used and industry-acknowledged as an accurate modelling tool. He said the results of the simulation he carried out (and set out in numerous contour plots in his evidence) were that:

On an overall development basis, the proposal development complies with BESS daylight performance standards as:

• 82% of living/kitchen areas meet the relevant daylight BESS 'best practice' standard.
• 100% of bedrooms meet the relevant daylight BESS 'best practice' standard.

14 rooms (Apartments 302, 306, 307, 308, 406, 407, 408, 506, 507, 508, 1008, 1108, 1206 & 1207 kitchen/living areas) have minor daylight constraints with more than 60% of each room exceeding the threshold 1% daylight factor.

Based on these results, in my opinion, the daylight levels within all habitable rooms will be satisfactory and will contribute to good internal amenity for future residents.

1. In Mr Talacko's opinion the conditions are inconsistent with the Council's published policy that other reflectance values may be used 'but must be outlined and in accordance with proposed design'.[141] He also states the current Green Star tool for buildings does not nominate default values and that the BESS values have not been 'calibrated with Better Apartments Design Standards ('BADS') room depths'. He also points out that the BESS tool recommends the use of lightly coloured materials and high VLT glazing.
2. Mr Talacko's opinion is that default values are inappropriate in present circumstances because bright finishes optimise internal daylight levels and should be encouraged, there are many paints that exceed the default values, and relevant BESS requirements cannot be met in built up areas based on BADS-compliant modelling.
3. The reasons for a more performance-based approach is compelling in these circumstances and, on balance, I prefer Mr Talacko's opinions to the Council's submissions. I will delete the conditions.

1. Condition 3 of Council's decision includes various requirements designed to ensure a satisfactory ESD outcome for the proposal.
2. Dr Kirkham made detailed submissions about 10 additional conditions for any permission that is granted. Most relate to ESD matters to which I have referred. None of them are necessary.

Condition 3 of the Council's decision did, however, overlook including a sub-condition requiring details of all relevant design initiatives that enable achievement of a Five Star Green Star Building rating. To mandate achievement, I will include a condition to that effect.

1. I will keep external shading devices. Although Mr Talacko did not consider them necessary for the building to achieve best practice or excellence under Green Star, they are consistent with ESD energy objectives.

1. At the conclusion of the hearing, each of the parties had an opportunity to file written submissions on changes to the draft conditions in the notice and in the amendments to the draft conditions sought by GFM. I have considered those submissions as they relate to permission to construct buildings and works and to permission to vary car parking requirements.
2. Throughout these reasons, I have included findings on the main conditions in dispute. It is unnecessary to refer to my findings on other conditions and the conditions in the Appendix to these reasons reflects all my findings.

1. Planning decision making involves balancing competing objectives in a task known as integrated decision making. The planning scheme recognises this and provides that decision makers:

... should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.[142]

1. In line with the authorities, a 'finding' of the relevant benefits is not required but is rather a matter that must be considered.
2. In preparing the reasons for these orders in relation to both the conditions review and the merits review, I have been mindful of this task. It has been a challenging task, which should be apparent from the length of these reasons.
3. 'Net community benefit' involves considerations that are wider than 'significant community benefit' under ACZ1. It brings into consideration matters such as provision of additional housing in an area, among others. 'Sustainable development' involves considerations that are wider than ESD and to contributions to sustainable development of metropolitan Melbourne.

1. Permission to use the subject land for the community facility has been established and the Tribunal has no jurisdiction to direct that permission be set aside. I cannot consider the grounds and submissions on behalf of Ms Box and the respondents that the subject land cannot or should not be used for the community facility. This is consistent with the reasoning in Myers.
2. In accordance with these reasons:

(a) In the conditions review for the permission to use the subject land for the purpose of the three uses, including the community facility, and for permission for access to Chapel Street, I will modify the conditions and direct that a modified permit be issued.

(b) In the merits review, I will vary the decision to grant permission for buildings and works and for the car parking reduction and direct the issue of those permissions subject to varied conditions.

1. I will leave it to the Council as to whether the permissions should be consolidated into one document and, if so, how that might be achieved.

671 Chapel Street & Part 1 Forrest Hill SOUTH YARRA VIC 3141

• Construction of a building and construction or carrying out works under clauses 37.08-5 and 37.08-6 of the Stonnington Planning Scheme
• Reduction of car parking requirements under clause 52.06-3 of the Stonnington Planning Scheme

1. Before any construction of a building starts and before any carrying out or construction of works starts - excluding any remediation of the site and excavation and construction of the basement up to ground level - one (1) electronic copy of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the plans prepared by Bates Smart Architects all dated 7 July 2023 drawing numbers TP03.00, TP03.01, TP03.03, TP03.13, TP03.21, TP03.B1, TP03.B2, TP03.B3, TP03.B4, TP09.00, TP09.01, TP09.02, TP09.03 all Rev C, TP03.04, TP03.22, TP03.23, TP10.00, TP10.01, TP10.04, TP10.05 all Rev B and TP03.18 Rev A, but modified to show each of the following:

(a) Any changes and annotations on ESD commitments required by Condition 4 (Sustainable Management Plan).

(b) Detailed dimensioned façade details (sections/plans) are to be proved demonstrating the effectiveness of the external shading strategies to the north, east and west facing glazing to habitable rooms. These details must prevent passive solar gain in summer while enabling warming winter sun access and ensure windows are shaded from the spring equinox till the autumn equinox (21 September to 21 March). For north facing glazing a fixed overhang (such as an eave) depth should measure 25% of the height from the window sill to the bottom of the shading device.

(c) Allocation of bicycle parking spaces to residential, office, retail and visitors.

(d) Landscaping within pedestrian sight triangles adjacent to the exit lane limited in height to 900mm.

(e) Doors to the sub-station designed to not encroach the access aisle when in the open position.

(f) The 'community asset' on level 1 notated as 'community facility'.

(g) The DDA lift opening directly to the community facility and not to the pool lift as shown on the plan prepared by Bates Smart Architects drawing TP03.01 rev D with a plot date of 10 October 2023.

(h) An internal stair in the community facility leading to the emergency door to the residential lobby, generally in accordance with the plan prepared by Bates Smart Architects drawing TP03.01 rev D with a plot date of 10 October 2023.

(i) An indicative location of a kitchenette and amenities within the community facility, notated as subject to change in fit out.

(j) Screening between terraces on level 03.

(k) 50% of dwellings with at least one adaptable bathroom that meets all of the requirements of either Design A or Design B specified in Table D7 of clause 58.05-1 of the Stonnington Planning Scheme.

(l) The type and location of lighting to car parking and internal accessways.

(m) Allocation of external storage within the basement levels and at level 01 to dwellings as required to demonstrate compliance with Standard D21 at clause 58.05-4 of the Stonnington Planning Scheme.

(n) A setback of penthouse 1 on level 19 no less than 7.4 metres from the rear boundary.

(o) Any changes required by Condition 7 (Green Travel Plan).

(p) Any changes required by Condition 8 (Landscape Plan).

(q) Any changes required by Condition 10 (WMP).

(r) Any changes required by Condition 13 (CFMP).

(s) Any changes required by Condition 14 (Wind)

(t) Any changes required by Condition 16 (Façade Strategy).

All these modifications to the plans must be to the satisfaction of the Responsible Authority.

1. Before the development starts (excluding remediation works), an Early Works Plan and Basement Plans (including dimensions of the support columns in the basement to demonstrate appropriate clearance to car parking spaces) must be submitted to and approved by the Responsible Authority. Once approved, the plans will form part of the Permit.

1. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified, without the prior written consent of the Responsible Authority. This does not apply to any exemptions that are listed in Clause 62 of the Stonnington Planning Scheme or a change of use if the proposed use is a Section 1 use in the applicable Activity Centre Zone.

1. Before any plans pursuant to Condition 1 are endorsed - excluding any remediation of the site and excavation and construction of the basement up to ground level - a Sustainable Management Plan (SMP) must be submitted to and approved by the Responsible Authority. When approved the SMP will be endorsed and will then form part of the permit. The development must incorporate the sustainable design initiatives outlined in the SMP to the satisfaction of the Responsible Authority. Amendments to the SMP must be incorporated into plan changes required under Condition 1. The SMP must be generally in accordance with the report prepared by Stantec dated 6 May 2022, but modified to include each of the following:

(a) External shading devices to north and west facing glazing.

(b) The measures and specifications set out and assumed for the purposes of modelling and assessment in the witness statement of Jan Talacko dated 14 August 2023.

(c) Preliminary NatHERS certificates provided for one apartment on each level.

(d) Details of the Photovoltaic (PV) total capacity and inclination angle (from horizontal) the panels are to be installed.

(e) Provision of Carbon Monoxide (CO) monitoring to the basement carpark.

(f) A brief statement outlining construction measures to prevent litter, sediments and pollution entering the stormwater system. The statement should include the types of measures required to be implemented on site (such as adoption of 'Keeping our stormwater clean' guide by Melbourne Water and typical measures suggested).

(g) A brief statement outlining operational and maintenance measures to check the effective operation of all stormwater systems.

(h) Details of the sustainable design initiatives that achieve a Five Star Green Star Building rating (pursuant to Green Star - Buildings v1).

(i) Demonstrate how Best Practice measures from each of the 10 key Sustainable Design Categories of Stonnington Council's Sustainable Design Assessment in the Planning Process (SDAPP) have been addressed.

(j) Identify relevant statutory obligations, strategic or other documented sustainability targets or performance standards.

(k) Document the means by which the appropriate target or performance is to be achieved.

(l) Identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring.

(m) Demonstrate that the design elements, technologies and operational practices that comprise the SMP can be maintained over time.

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

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

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

1. Before any plans pursuant to Condition 1 are endorsed, a Green Travel Plan must be submitted to and approved by the Responsible Authority. When approved, the Green Travel plan will be endorsed to form part of the permit. The Green Travel Plan must include actions and recommendations designed to reduce the use of cars and increase the use of alternative travel methods to the satisfaction of the Responsible Authority. The development must operate in accordance with the Green Travel Plan.

1. Before any plans pursuant to Condition 1 are endorsed, a landscape plan to be prepared by a landscape architect or suitably qualified or experienced landscape designer, must be submitted to and approved by the Responsible Authority. When approved, the landscape plan will be endorsed and will then form part of the permit. The landscape plan must be drawn to scale with dimensions. The landscape plan must be generally in accordance with the plans prepared by Jack Merlo Design & Landscape dated 23 June 2023 Rev E, and include each of the following:

(a) Updates to the Public Realm Enhancement Works plan as shown on the drawing TP06 revision E prepared by Jack Merlo dated 23 June 2023, to show details of the pavement along the Chapel Street frontage and the northern boundary of the subject land (such as material, size and pattern), and details of any street furniture and street tree planting, to the satisfaction of the Responsible Authority.

(b) Soil volume details of all planter boxes.

(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 and irrigation details for all planting.

(d) The extent of any cut, fill, embankments or retaining walls associated with the landscape treatment of the site.

(e) Details of all proposed hard surface materials including pathways, patio or decked areas.

(f) Relocation or removal of the planter box shown on drawings TP01 and TP04 in the location of the entry to the commercial lobby from Chapel Street.

(g) Deletion of landscaping works shown within Melbourne High School site to the west of the subject land.

1. Before the occupation of the development, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority. Landscaping must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.

1. Before any plans pursuant to Condition 1 are endorsed, a Waste Management Plan must be submitted to and approved by the Responsible Authority. When approved, the Waste Management Plan will be endorsed and will then form part of the permit. The Waste Management Plan must be generally in accordance with the Waste Management Plan prepared by One Mile Grid dated 23 June 2023 but updated to include:

(a) Organic waste generation rates revised to match 'Sustainability Victoria Better Practice Guide for Waste Management and Recycling in Multi-unit Development' allocation - 35% of garbage is comprised of organics. The size and number of organic waste bins required is to be amended accordingly.

(b) The designated bin stores to allow space for glass recycling as per 'Recycling Victoria Guidelines', should such a service be available in the future.

(c) Retail organic waste generation rates revised to match 'Sustainability Victoria Better Practice Guide for Waste Management and Recycling in Multi-unit Development' allocation - 73L per full time equivalent.

(d) The location of the hard waste collection area is to be clearly signed and communicated to residents and tenants.

(e) Waste collection times to match the 'VIC EPA Noise Control Guidelines' which restrict collections occurring more than once a week to between 7am to 6pm Monday to Saturday for residential waste collection, and 7am to 8pm Monday to Saturday for industrial waste collection.

(f) Information regarding how commercial tenants will transfer their waste into the bin room.

(g) Details of the way all residential tenants will dispose of their organic waste.

(h) Use of 240L bins for organic waste.

Waste collection from the development must be in accordance with the Waste Management Plan, to the satisfaction of the Responsible Authority.

1. Before the development starts, the owner of the land must enter into an agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987 to covenant that it will:

(a) Further fund the streetscape and public realm works in front of the site at 671 Chapel Street and in front of the adjoining site to the north at 1 Forrest Hill as shown in the endorsed plans.

(b) Allow public access free of charge to the Community Facility located on Level 1 of the building as shown on the endorsed plans and in accordance with the Community Facility Management Plan referenced in Condition 12.

(c) Maintain access to the Community Facility as shown on the endorsed plans and to a standard that is safe and fit for public access to the satisfaction of the Responsible Authority.

(d) Costs for construction of the Community Facility are to be borne by the landowner.

1. The agreement must be registered with the Registrar of Titles in accordance with section 181 of the Planning and Environment Act 1987 and will run with the land, including any common property that may be created as part of the subdivision of the land. All costs (including legal costs) associated with the preparation and review of the agreement and registration of the agreement on the Certificate of Title for the land must be paid by the owner.

1. Before use for the community facility starts, a Community Facility Management Plan (CFMP) must be submitted to and approved by the Responsible Authority. When approved, the CFMP will be endorsed and will then form part of the permit. The CFMP must provide operational details for the Community Facility (the Facility) located on Level 1 of the building as shown on the endorsed plans including, but not limited to, each of the following information:

(a) The responsibility for the management of the Facility.

(b) The proposed hours in which the Facility will be available to the public for community use.

(c) Accessibility and wayfinding signage to access the Facility from the public realm.

(d) Measures to ensure security of the Facility and safety of users.

(e) Arrangements and responsibilities for the cleaning and maintenance of the Facility.

(f) How noise and amenity complaints from the Facility will be managed.

(g) How users of the Facility will be made aware of minimising noise from the premises.

(h) Details of public liability insurance.

The use of the Facility must operate in accordance with the Community Facility Management Plan to the satisfaction of the Responsible Authority.

1. Before plans pursuant Condition 1 are endorsed, an addendum to the Pedestrian Wind Study prepared by RWDI Australia dated 5 September 2022 and/or the addendum letter dated 10 July 2023 must be submitted to the satisfaction of the Responsible Authority and must show that comfortable wind conditions can be achieved on north-facing apartment balconies at 661 Chapel Street and 663-665 Chapel Street that are located within the distances from the proposed building referred to in clause 58.04-4 of the Stonnington Planning Scheme.
2. Before the development is occupied, a report from the author of the Pedestrian Wind Study prepared by RWDI Australia dated 5 September 2022 and the addendum letter dated 10 July 2023, or similarly qualified person or company, must be submitted to the Responsible Authority. The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the report and addendum letter and addendum submitted under condition 14 have been implemented in accordance with the approved plans.

1. Before any plans pursuant to Condition 1 are endorsed, a Façade Strategy must be prepared to the satisfaction of the Responsible Authority and must be submitted to and approved by the Responsible Authority. Once approved, the Façade Strategy will be endorsed and will then form part of the permit. The Façade Strategy must include each of the following:

(a) A concise description by the architect of the building design concept and how the façade works to achieve this.

(b) Example prototypes and/or precedents that demonstrate the intended design outcome as indicated on plans and perspective images, to produce a high-quality built form outcome in accordance with the design concept.

(c) A schedule of colours, materials and finishes, including the colour, type and quality of materials showing their application and appearance and confirmation that no material will have more than 20% reflectivity or otherwise to the satisfaction of the Responsible Authority.

(d) Detailed elevations showing the location of the proposed materials, colours and finishes, building details, entries and doors, utilities and any special features.

(e) Cross sections or other method of demonstrating the façade systems, including fixing details indicating junctions between panels.

(f) Information about how the façade will be accessed, maintained and cleaned, including details of the ongoing maintenance, inspection and where necessary treatment of the façade.

The provisions, recommendations and requirements of the endorsed Façade Strategy must be implemented and complied with to the satisfaction of the Responsible Authority.

1. Upon submission of plans to be endorsed pursuant to condition 1, a digital 3D massing model of the development hereby approved in accordance with the specifications of Council's GIS Unit must be submitted to the satisfaction of the Responsible Authority.

1. Before the development is occupied, the walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.

1. Before a sensitive use (residential use, childcare centre, pre-school centre, primary school, secondary school or children's playground) commences or before the construction or carrying out of buildings and works in association with a sensitive use commences:

(a) A preliminary risk screen assessment statement in accordance with the Environment Protection Act 2017 must be issued stating that an environmental audit is not required for the use or the proposed use; or

(b) An environmental audit statement under Part 8.3 of the Environment Protection Act 2017 must be issued stating that the land is suitable for the use or proposed use.

Before the building is occupied all the conditions of the Statement of Environmental Audit must be complied with to the satisfaction of the Responsible Authority.

1. The use and development allowed by this permit must comply with the directions and conditions of any statement of environmental audit issued for the land.
2. All the conditions of the Statement of Environmental Audit must be complied with to the satisfaction of the responsible authority, prior to commencement of use of the site. Written confirmation of compliance must be provided by a suitably qualified environmental professional or other suitable person acceptable to the responsible authority. In addition, sign off must be in accordance with any requirements in the Statement conditions regarding verification of works.

1. External lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the Responsible Authority.
2. Security lighting, including to the new path along the southern wall of the building at 1 Forrest Hill, must be installed and maintained to the satisfaction of the Responsible Authority.

1. The loading and unloading of vehicles and the delivery of goods to and from the premises must at all times be conducted in a manner that limits interference with other vehicular traffic to the satisfaction of the Responsible Authority.

1. All buildings and structures, with the exception of the proposed decking, must be clear of the easement at the rear of the property. Before a building permit is issued for the decking, consent to build the decking over the easement must be obtained from the Responsible Authority.

1. Before a building permit is issued, a report for the legal point of discharge must be obtained from Council and a drainage design for the development must be prepared by a suitably qualified Engineer in accordance with all 'recommendations' and requirements contained in that report. All drainage must be by means of a gravity based system and not pumped, with the exception of runoff from any basement ramp and agricultural drains which may be pumped. The relevant building surveyor must check and approve the drainage design and ensure that protection of the building is provided from a 1 in 100 A.R.I. rainfall event as required by the Building Regulations.
2. Before an 'Occupancy Permit' is issued, a suitably qualified Engineer must carry out a detailed inspection of the completed stormwater drainage system and associated works including all water storage tanks and detention (if applicable) and must certify that all works have been constructed in accordance with the approved design and the relevant planning permit conditions. Certification of the completed drainage from the Engineer must be provided to the Responsible Authority.

1. The existing footpath levels must not be lowered or altered in any way to facilitate access to the site, unless with the consent of the Responsible Authority.
2. Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the owner or person constructing or carrying out the development and subject to the relevant authority's consent.

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

1. All redundant vehicular crossing must be removed and the footpath, and kerb reinstated at the owners cost to the satisfaction of the Responsible Authority

1. Before the building is occupied, access for persons with disabilities must be provided in compliance with the Disability Discrimination Act 1992 (Cth) and such access must be maintained at all times the building is occupied or in use.

1. Noise emanating from the subject land must not exceed the prescribed limits specified in the Environment Protection Regulations under the incorporated Noise Protocol (Publication 1826.2, Environment Protection Authority, November 2020). Any works required to ensure and maintain the noise levels are in compliance with the regulations must be completed before the use or occupation of the building starts and then maintained, all to the satisfaction of the Responsible Authority.

1. All fixed plant and equipment (including air-conditioning units) must be screened to visually integrate into the development to the satisfaction of the Responsible Authority.

1. Before a building permit is issued, a Development Infrastructure Levy pursuant to Schedule 1 to the Development Contributions Plan Overlay of the Stonnington Planning Scheme and the approved Stonnington Municipal - Wide Development Contributions Plan (2020-2040), January 2023, must be paid to Stonnington City Council. The levy amount payable will be annually adjusted on 1 August each year in accordance with the Consumer Price Index (CPI) and calculated at the time of payment.

1. Before a building permit is issued, a Community Infrastructure Levy pursuant to Schedule 1 to the Development Contributions Plan Overlay of the Stonnington Planning Scheme and the approved Stonnington Municipal- Wide Development Contributions Plan (2020-2040), January 2023, must be paid to Stonnington City Council. The levy amount payable will be annually adjusted on 1 August each year in accordance with the Consumer Price Index (CPI) and calculated at the time of payment.

1. Before any works start, including demolition and excavation, a Construction Management Plan (CMP) must be prepared to the satisfaction of the Responsible Authority, detailing how the environmental and construction issues associated with the development will be managed. No works may start until the CMP is approved. The CMP when approved will form part of the permit and must be implemented to the satisfaction of the Responsible Authority. The CMP must include:

(a) The contact name and phone number(s) of the site manager.

(b) Bulk excavation.

(c) Management of the construction site.

(d) Hours of construction, including program/duration of works.

(e) Control of noise, dust, water and sediment laden run-off.

(f) Public safety.

(g) Traffic management.

(h) Construction vehicle road routes and measures for construction vehicles to safely enter and exit the site.

(i) Largest vehicles expected to the site.

(j) Soiling and cleaning of roadways.

(k) Security fencing, disposal of site waste and any potentially contaminated materials.

(l) Crane locations during construction.

(m) Site offices and amenities and areas for storage of wastes

(n) Onsite staff and contractors' car parking.

(o) Redirection of any above or underground services; and

(p) Site lighting during any night works.

(q) Other matters as may be required by the Responsible Authority.

1. Before the development is occupied, amended plans must be submitted to and approved to the satisfaction of the Responsible Authority at no cost to Head, Transport for Victoria showing appropriate signage and linemarking to delineate the separate vehicular entry and exit points and restrict vehicular entry to left in only and restrict vehicular exit to left out only onto Chapel Street.

1. Disruption to tram operations along Chapel Street during the construction of the development must be avoided. Any planned disruptions to tram operations during construction and mitigation measures must be communicated to and approved by the Head, Transport for Victoria and Yarra Trams a minimum of thirty-five days (35) prior.
2. All track, tram and overhead infrastructure must not be damaged. Any damage to public transport infrastructure must be rectified to the satisfaction of the Head, Transport for Victoria at the full cost of the permit holder.

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

(a) The development is not started within three years of the date of this permit.

(b) The development is not completed within five years of the date of this permit.

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

[1] The submissions and evidence of the parties, the material in the proceeding Tribunal Book, 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 this material will be cited or referred to in these reasons.

[2] I will not include this notice as part of these reasons, but it can be accessed online as an appendix to the Tribunal's earlier orders dated 26 May 2023 in Box v Stonnington CC [2023] VCAT 598.

[3] The orders with published reasons were Box v Stonnington CC [2023] VCAT 289, Box v Stonnington CC [2023] VCAT 598, Box v Stonnington CC [2023] VCAT 715 and Box v Stonnington CC [2023] VCAT 1258.

[4] Order 2 of the orders dated 19 October 2023.

[5] This is in accordance with how building height is to be measured under the planning scheme in clause 4.4 of ACZ1 i.e. from natural ground level to the top of the roof. It is the figure adopted by the Council and not disputed by the parties. Mr O'Dwyer adopted a more conservative approach and, in adopting a building height of 65.5 metres, measured from the lowest natural ground level of RL 8.45 metres in the southeast corner of the land at Chapel Street to the roof of level 19.

[6] Again, this is the figure adopted by the Council and not disputed by the parties. Again, Mr O'Dwyer adopted a more conservative approach and, in applying the same measuring point, adopted a height of 12.5 metres.

[9] It is apparent the deck is removable because it is located above an easement.

[10] This balustrading is not apparent in figure 1.

[11] For completeness, pedestrian access to the lift is also available from the proposed path along the south side of the gymnasium.

[12] As is common (and perhaps unfortunate) current practice, the conditions included in the grant of permission do not expressly identify which are attached to each permission.

[14] For completeness, a decision on an application under clause 52.29 is exempt from review.

[15] In paragraphs 48 to 55 and Appendix B of the written submissions on behalf of Ms Box dated 3 October 2023, she relies on documents released under the Freedom of Information Act 1982 (Vic). One of those documents shows that the Department (through the Victorian Schools Building Authority) informed the Minister on 4 August 2021 that it did not support 'gifting' space in the building to MHS because the Authority should not 'facilitate a planning outcome for a private developer' and there would be ongoing owners corporation costs.

[16] [2023] VSC 658 (16 November 2023) ('Myers').

[17] Ibid [71], [101], [148], [149], [152].

[18] Ibid [26]-[27], [148], [149], [152].

[19] It is to be recalled that, for example, there would be differences between the permissions, if only because the use permission would be in relation to the decision plans and the buildings and works permission (and the parking permission) would be in relation to the substituted plans. As the Court in Myers said at [158] and [168], any difficulty of that type can be overcome by the Council by endorsement of amended plans under condition 1 of the permit for the three uses or by amendment of the permit to use the subject land for the three purposes under PE Act s 72. I would add that for practical reasons relating to administration of the permits, the Council should consider giving the two permissions different numbers. For example, the Council may decide to issue the modified permit to use the subject land for the three purposes and for access with the number 0321/22.1 and to issue the permit for buildings and works and parking variation with the number 0321/22.2.

[21] I will not set out the numerous grounds relied on by respondents but they include those relied on by Ms Box. But one submission made by Dr Kirkham warrants mention. Dr Kirkham claims there is no benefit to MHS in the community facility having regard to MHS's educational needs and there cannot therefore be a significant community benefit. I cannot consider those claims.

[25] C&L International Holdings Pty Ltd v Stonnington CC [2019] VCAT 69 ('C&L International').

[27] Written submissions on behalf of the Council [86]. It is unnecessary to refer to these amendments for the purposes of these reasons.

[28] C&L International above n 25 [18]-[27].

[30] Box v Stonnington CC [2023] VCAT 1258 [12].

[33] These included reference to sections 8, 9, 12 and 28 of the LG Act. He also submitted the Tribunal 'may want to consider' sections 88, 89 and 106 of that Act.

[34] Sweetvale Pty Ltd v VCAT [2003] VSCA 83 [17].

[35] [2022] VSCA 226.

[36] Box v Stonnington [2023] VCAT 715 [13].

[42] Box v Stonnington CC [2023] VCAT 289 [51]-[54].

[43] Leon Park Pty Ltd v Mornington Peninsula SC [2022] VCAT 1373 [21].

[44] See Box v Stonnington CC (unreported, 9 May 2023) (Practice Day Hearing).

[45] Planning scheme cl 37.08 sch 1 cl 4.4.

[46] Closing written submissions on behalf of the Council [8].

[47] Written submissions on behalf of the Council [109].

[48] It is to be recalled that the notice of decision is made on the decision plans and that the substituted plans do not apply to the conditions review in relation to the community facility. Ultimately, this is not determinative because the plans are consistent in the size, location and access for the community facility.

[49] The 'use' in the context of this condition must be use for the facility and not the uses otherwise permitted by the Council's decision ie the dwellings and office.

[50] For completeness, there is a second path to the dedicated lift along the southern edge of the gymnasium on the part 1 Forrest Hill land. It involves descending some stairs and crossing the vehicle drop off and pick up and so it is unclear to what extent it would be used.

[51] As measured from the lowest natural ground level of RL 8.45 metres in the southeast corner of the subject land at Chapel Street to the roof of level 19.

[52] This depends on whether the Council's calculation or Mr O'Dwyer's calculation is adopted.

[53] Context is relevant - see planning scheme cls 15.01-1S, 15.01-2S.

[54] Closing submissions on behalf of GFM [6].

[55] The four-storey MHS gymnasium would theoretically have redevelopment potential, but its particular circumstances make it less likely to be redeveloped in the foreseeable future.

[56] Including acknowledging that the preferred maximum height 'may not be achievable on every site, particular smaller sites and/or constrained sites' (planning scheme cl 37.08 sch 1 cl 4.4 'Height and massing requirements' where second appearing, dot point 1. I do not consider the subject land to be either a smaller site or a constrained site. The only relevant constraints are those relating to context or the planning scheme, which are constraints affecting all sites.

[57] Planning scheme cl 37.08 sch 1 cl 5.1-2 dot point 20.

[58] The oblique view is more relevant than from directly opposite because the viewing point for the latter is too close to get a proper appreciation.

[59] Planning scheme cl 37.08 sch 1 cl 4.4 'Views and landmarks guidelines'.

[60] Ibid cl 37.08 sch 1 cl 5.1-4 'Within Sub-Precinct FH-2' dot point 1.

[61] Ibid cl 37.08 sch 1 cl 5.1-1. In the previous decision at [43]-[44], the Tribunal referred to the viewline as the 'crucial' viewpoint and I agree with that description.

[63] C&L International above n 25 [41].

[64] Alistair Campbell, statement of evidence [79]-[81].

[65] Planning scheme cl 37.08 sch 1 cl 4.4 'Height and massing requirements' where first appearing, dot point 2.

[66] Ibid cl 37.08 sch 1 cl 4.4 'Overshadowing requirements', 'Overshadowing guidelines' and Precinct Maps at cl 5.1 and cl 5.1.3.

[68] Ibid cl 37.08 cl 4.4 'Heritage sites guidelines'.

[69] Ibid cl 37.08 cl 4.4 'Interface setback guidelines' dot point 5.

[70] Ibid cl 15.03-1S, Strategies, dot point 7.

[71] C&L International above n 25 [78].

[75] See e.g. Bensons Property Group Pty Ltd v Stonnington CC [2017] VCAT 2155 [38]-[39], [42], although that case concerned the provision when it was characterised as a guideline rather than a requirement, and this qualification was considered in some later cases, including Healthscope Operations Pty Ltd v Stonnington CC [2019] VCAT 1155 [51], [56] and what I have described in these reasons as the 'previous decision'.

[77] For example, GFM pointed out that there are Supreme Court and Tribunal cases in which it was held that additional housing could be a benefit in a building that exceeds a discretionary height limit. GFM said these cases include W Property Group v Boroondara CC (Supreme Court of Victoria, Cavanough J, 6 March 2018) [in this case, at part 3143 of the Tribunal Book]; W Property Group Pty Ltd v Boroondara CC [2017] VCAT 1238; ATJ Holdings Pty Ltd v Yarra CC [2019] VCAT 1189 at [57]; San Domenico Pty Ltd v Stonnington CC [2022] VCAT 909; Queens Avenue Developments Pty Ltd v Boroondara CC [2018] VCAT 629. Nonetheless, I must be cautious in applying these authorities because all, except San Domenico, related to provisions in other planning schemes that differed from clause 4.4.

[78] It will be recalled that the assessment in the condition review relating to the use permission involved an assessment of the application including the decision plans, although I found there was little material difference with the substituted plans.

[79] Internal stairs for this door were shown on the decision plans, which supports the conclusion that they were inadvertently omitted in the preparation of the substituted plans.

[80] In accordance with the rule of evidence in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. Although the Tribunal is not bound by the rules of evidence (Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1)(b)), I would consider this rule on this point in this proceeding.

[81] Closing written submissions on behalf of GFM [44]

[82] Box v Stonnington CC [2023] VCAT 598 [25].

[83] Officers' report, Tribunal Book p 900.

[84] Box v Stonnington CC [2023] VCAT 715 [22].

[85] The occasional planters on the south side of the walkway shown on Mr Merlo's landscape plan mean the minimum width is about one metre.

[86] It is relevant to observe that other contributions may separately be required. If the building in the proposal were to be constructed and subdivided to facilitate the sale of apartments, a public open space contribution would be payable under clause 53.01 of the planning scheme. The contribution is not tied to permission to construct a building that exceeds the preferred maximum building height.

[87] Written submissions on behalf of the Council [71]-[72].

[88] Officers' report, Tribunal Book p 900.

[92] Amanda Ring, statement of evidence [256].

[94] I have not taken into account access to the nearby MHS oval because that is not 'public' open space, even though on my inspection I saw public use of the oval for dog walking.

[95] Amanda Ring, statement of evidence [256].

[96] City of Stonnington General Local Law No. 1 2018 (as amended).

[98] Ibid cl 37.08 sch 1 cl 5.1-2 dot point 17.

[99] RWDI Australia Pty Ltd, memorandum 10 July 2023 p 1.

[100] RWDI Australia Pty Ltd, Pedestrian Wind Study 671 Chapel Street, South Yarra, 5 September 2022 p 8.

[101] The nearest balconies at 661 Chapel Street are not directly below the two points but are at least 10 metres to the west.

[102] Planning scheme cl 37.08 sch 1 cl 4.4 'public realm interface guidelines' dot point 10.

[103] Ibid cl 37.08 sch 1 cl 5.1-2 'precinct objectives' dot point 15.

[104] Written submission on behalf of the Council [152]-[153].

[105] C&L International above n 25 [106].

[106] Planning scheme cl 37.08 sch 1 cl 4.4.

[108] The Council's decision required carbon monoxide monitoring in the basement (condition 1(l)), allocation of bicycle parking spaces (condition 1(m)), EV charging infrastructure in the basement (condition 1(n)), dimensioned basement entry headroom (condition 1(q)), provision of a bollard next to the accessible car space (condition 1(s)), dimensions of basement support columns (condition 1(t)), details of basement substation doors and bicycle parking dimensions (condition 1(v)). None of these conditions is in dispute.

[109] John Kiriakidis, statement of evidence, p 19.

[110] Planning scheme cl 37.08 sch 1 cl 5.1-2, dot points 7 & 8.

[111] Amendment C139 to the Stonnington Planning Scheme, prepared in 2012 but subsequently lapsed - see John Kiriakidis, statement of evidence, p 13.

[112] Planning scheme cl 15.01-2S 'Objective'.

[114] Ibid cl 15.02-1L-02 'Objective'.

[115] Ibid cl 15.02-1L-02 'Strategies'.

[119] See eg objectives for energy efficiency in cl 58.03-1 of the planning scheme.

[120] Stantec Australia Pty Ltd, Sustainability Management Plan, 6 May 2022.

[121] Mr Talacko recommended a notation on the plans to ensure best practice for re-use of harvested rainwater by specifying connection to all toilets in all apartments on levels 3 to 9. The parties did not oppose that recommendation. I have not included it in the SMP condition because it appears the condition can include that requirement without specific mention.

[122] Jan Talacko, statement of evidence, p 5.

[124] Although he did not define that term, I will take it as a reference to 'environmental and sustainability claims which are false, misleading, or have no reasonable basis': ACCC, Environmental and sustainability claims - Draft guidance for business (July 2023). Dr Kirkham included a checklist of indicia of 'greenwashing' from United Nations climate science publications.

[125] In his closing submissions, Dr Kirkham also contended that the basement car spaces needed more space, comprising an extra 900 mm in width and two metres in depth. He then submitted that provision of EV charging spaces (as outlined in the SMP and condition 1(n)) is not a 'green' (which I take to mean, an ESD) initiative, when the fire risk is considered. As I have stated, that risk is no basis to refuse planning permission.

[126] Knox City Council v Tulcany Pty Ltd [2004] VSC 375 [13(d)].

[127] Dr Reuben Kirkham, closing written submissions [27].

[128] Practice Note PNVCAT2 Expert Evidence (8 December 2022).

[129] Jan Talacko, statement of evidence, Appendix B.

[130] Box v Stonnington CC [2023] VCAT 1258 (Woodward J, President) (13 November 2023).

[137] I record what appears to be a typographical error in condition 1(c), with its reference to 'visible' rather than 'visual' light transmittance. I also record that condition 3(a) includes a reference to 'level 20' which was relevant for the decision plans but does not exist in the substituted plans.

[139] Written submissions on behalf of the Council [169].

[140] Jan Talacko, statement of evidence 14 August 2023 & Jan Talacko, Response to Council Daylight Referral Comments, 671 Chapel Street (undated, tendered to hearing).

[141] Stonnington City Council, Sustainable Design Assessment in the Planning Process, Fact Sheet, section 1.1 'Daylight'.