1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

TP-01, TP-02, TP-03, TP-03A, TP-04, TP-05, TP-06, TP-07, TP-08, TP-09, TP-10, TP-11, TP-12, TP-13 and TP-14.

1. The decision of the Responsible Authority is set aside.

1. In permit application 2012/730/1 a permit is granted and directed to be issued for the land at 329- 331 New Street Brighton in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • Construction of two or more dwellings on a lot in the Neighbourhood Residential Zone (NRZ3).
   • Construction of a building or construction or carrying out of works in the Special Building Overlay (SBO).
   • Reduction in the carparking requirements in Clause 52.06.

Ms Susan Brennan SC and Ms Emily Porter of Counsel instructed by SJB Planning Pty Ltd. They called the following witnesses:

• Ms Catherine Heggen, Town Planner of Message Consultants Australia Pty Ltd.
• Ms Hilary Marshall, Traffic Engineer of Cardno Victoria Pty Ltd.

Construction of a three storey building containing 32 dwellings over basement car parking for 65 vehicles.

Application under Section 77 Planning and Environment Act 1987 - to review the refusal to grant a permit.

Cl. 32.09-5 (Construction of two or more dwellings on a lot in NRZ3).

Cl. 44.05 (Construct a building or construct or carry out works in SBO).

Clauses, 10, 11, 15, 16, 18, 21.02, 21.03, 21.05, 21.06, 21.09, 21.11, 22.06, 22.08, 55 and 65.

The site is on the north western corner of New and Bay Streets. It is rectangular in shape, has a frontage to Bay Street of 24.82 metres, a frontage to New Street of 47.07 metres and a total area of 1,176m2. The site is cleared and used for at-grade car parking in association with the nearby New Bay Hotel.

A most unusual set of circumstances applies to this permit application

1. In March 2011, a consent order signed at mediation by Council asked the Tribunal to direct that a permit be granted for a three storey building containing 11 dwellings over a basement car park on the review site ('2011 permit'). The Council subsequently agreed to an extension of time which now requires development to commence by March 2015. The land at that time was zoned Residential 1. It was also affected by a Special Building Overlay and a Design and Development Overlay (DDO2). The proposal included 32 car spaces to replace the existing at-grade parking required for patrons of the New Bay Hotel.
2. Council also issued a permit in March 2014 allowing the relocation of the existing hotel car park to 64 Bay Street, immediately adjoining the western side of the New Bay Hotel. That permit has not yet been acted upon, hence the need to include hotel parking as part of the latest permit application on the review site.
3. The current permit application largely replicates the built form of the building approved by the 2011 permit. The main difference is that the number of dwellings has increased to 32 dwellings and a three level basement provides parking for 65 vehicles including 32 for New Bay Hotel patrons.
4. The most significant change since 2011 does not relate to the physical characteristics of the site, its locational context or even the fundamental design response and uses proposed for the site.
5. Instead, the most significant change since 2011 is the rezoning of land in the area to Neighbourhood Residential 3 and the inclusion of a new Strategic Framework Plan that designates the site and locality as an area of Minimal Residential Growth. The DDO2 has changed to DDO3 but that is of no relevance as a permit is not required under the new DDO3.
6. The permit application I am reviewing is affected by the transitional provisions in the Neighbourhood Residential Zone. In the absence of those provisions, the maximum number of dwellings which could be built on this site of 1,176 square metres would be two, assuming no prior approval for subdivision, each dwelling with a maximum height of 8 metres.
7. Council staff recommended conditional approval of the application. Council decided not to follow that recommendation and instead refused the application. That refusal in March 2014 predated the introduction of the new residential zones and changes to State and local policies referred to in paragraph 5. Council has since modified its grounds of refusal based on the amended plans and the new planning scheme provisions.
8. I find Council's initial refusal in March 2014 difficult to understand given its previous consent to a building which in built form and character terms is very similar to the current proposal. Whilst I accept that the dwelling numbers have increased from 11 to 32, in all other respects the application in March 2014 was still being assessed under the same planning scheme provisions that existed in 2011 and 2013. I acknowledge that the planning controls and some of the policy provisions have changed since March 2014, but I agree with Ms Brennan that the Council seems to have given little or no weight to the transitional provisions which have been specifically included to allow consideration of applications which would otherwise be prohibited.
9. I consider that refusing the current proposal would not be in the best interests of either the Bayside community or the landowner. Unless the 2011 permit is acted upon, refusal would result in the wasteful and irretrievable loss of a very limited resource if the site was only able to be developed for two dwellings in accordance with the Neighbourhood Residential Zone. At the hearing Mr Kane acknowledged that developing the site for just two dwellings (or perhaps four if the site was subdivided into two lots first) would not necessarily be a desirable outcome given the site context.

Is a more intensive development justified on this site?

1. Despite the zoning of the land as Neighbourhood Residential 3 and its designation in local policy as being within an area for Minimal Residential Growth, it is also necessary to consider what State policies have to say about development possibilities on a site such as this within an established urban area.
2. The recent approval of Plan Melbourne continues to emphasise urban consolidation and the importance of infill housing in meeting anticipated demand for new dwellings. There is acknowledgement that up to two thirds (960,000) of the anticipated 1.57 million new dwellings required by 2051 will be provided within established areas.[2] It also introduces the concept of the 20-minute neighbourhood.
3. State policies in the Planning Scheme also support the intensification of development.[3] They include policies aimed at increasing the proportion of housing in Metropolitan Melbourne to be developed within the established urban area, reducing the share of new dwellings in greenfield and dispersed development areas, increasing housing supply near services and public transport, facilitating increased housing yield in appropriate locations including under utilised urban land, facilitating social and affordable housing and encouraging higher density housing development on well located sites. This is without question a strategic redevelopment site when assessed against the criteria for such sites in Clause 16.01-3.
4. Therefore, based on my understanding of what State policies are seeking to achieve, I consider that there is justification for a more intensive residential development on the review site.
5. However, the zoning of the land and local policies also need to be considered. The Neighbourhood Residential Zone[4] recognises areas of predominantly single and double storey residential development and seeks to:
   • Limit opportunities for increased residential development.
   • Manage and ensure that development respects the identified neighbourhood character, heritage, environmental or landscape characteristics.
   • Implement neighbourhood character policy and adopted neighbourhood character guidelines.
6. Decision guidelines for dwellings in the Neighbourhood Residential Zone also require consideration of the objectives, standards and decision guidelines of Clause 55. Schedule 3 varies Clause 55 requirements for street setback, site coverage, side and rear setbacks and front fence height. Ms Heggen advises that these are the same ResCode variations that were in the former Residential 1 Zone when Council supported the 2011 permit for a three storey building.
7. One of the purposes of the Neighbourhood Residential Zone is to implement neighbourhood character policy and adopted neighbourhood character guidelines. For Bayside these are included at Clause 22.06-4. The review site is in Precinct C1 and the preferred future character is described as:

The mix of dwelling styles, including a substantial presence of pre WW2 dwellings, sit within spacious gardens and do not dominate or overwhelm the streetscape. Garden plantings, and well-articulated façades and roof forms, assist in minimising the dominance of buildings from within the street space, as well as providing visual interest. Front setbacks allow planting of substantial trees and shrubs and side setbacks on both sides maintain a sense of spaciousness in the area. Trees are a mixture of exotic and natives, with an increasing frequency of traditional coastal and indigenous species, strengthening the visual connection of the area with the coast. Open style front fences retain an ability to view buildings from the street. Buildings fronting the foreshore reflect their setting and provide a visually attractive built form interface with the reserve.

1. Separate objectives and related design responses and things to avoid are listed for Precinct C1. Ms Heggen commented that what the character statement describes is typically the nature of development that occurs in the residential hinterland and that it is different from the character attributes in the immediate vicinity of the site. It is apparent that an apartment style building of the type proposed here does not reflect the detached or semi detached medium density style to which the guidelines seem to be focussed. This proposal does not maintain and enhance the garden settings of dwellings, does not maintain the rhythm of spacious visual separation between dwellings and provide space for front gardens, and only partly respects the dominant building form and scale of buildings in the precinct through innovative architectural responses.
2. But it is important to note that in Clause 22.06-3 (Exercising Discretion) there is recognition that a different approach may be acceptable depending on site context:

The extent to which the characteristics of the built and natural environment in the immediate vicinity of the site may determine a preferred future character that is different from that applying to the remainder of the precinct in which the site is located.

1. In my view it is the influence of the site context or the built and natural environments in the immediate vicinity of the site which are fundamental influences in deciding whether this proposal can be approved.

What has the Tribunal said about transitional applications?

1. As previously noted this is a transitional application that could not, without the benefit of those provisions, be approved. At the hearing parties made reference to a number of recent Tribunal decisions dealing with transitional applications. These most relevantly include Verbuk and Bayside Property Projects Pty Ltd.[5]
2. As foreshadowed at the hearing, I was aware of two Tribunal decisions dealing with transitional applications that were to be published a short time after the last day of hearing on 18 September 2014. As also foreshadowed at the hearing, I gave parties an opportunity to provide written comments on those two decisions.[6] Responses were received from Bayside City Council and from Ms Brennan and Ms Porter on behalf of the permit applicant.
3. I do not recite at length these four decisions or the comments made by parties about The Town Hall Consulting Group Pty Ltd and Whitefeather Group Pty Ltd.
4. My summary of the position taken in these decisions is the importance of responding to site context and the specific circumstances applying in each case. The Tribunal's summary in Bayside Property Projects Pty Ltd provides a succinct statement equally relevant to my assessment of this application.

• Different outcomes can be considered for transitional sites;
• No mandatory density or height controls apply;
• All other purposes and provisions of the zone apply;
• The scope of the third purpose has less application in a transitional proposal to the extent that it may be implemented through the mandatory density and height controls;
• What is meant by "limited" will turn on the individual circumstances of each case.
• The purposes of the zone have a strong emphasis on neighbourhood character considerations.
• The emphasis on neighbourhood character considerations weighs heavily in balancing the strategic considerations for a proposal in the Neighbourhood Residential Zone.

1. I agree with Senior Member Baird's observation in The Town Hall Consulting Group Pty Ltd that:

[8] Bayside Property Projects therefore contextualises what is 'limited' having regard to the fact that the transitional provisions are in the Scheme.

1. I also agree with her further comments about 'limited' and the need to respond to the Zone purposes concerning neighbourhood character.

[10] "Limited" in the Zone purpose reflects the provisions of Clause 32.09 that restrict and/or allow restrictions on subdivision, height, density and some Clause 55 standards. The provisions in the Clause allow a proposal that does not meet mandatory provisions to be lodged, assessed and approved.

[11] There can, therefore, be a different outcome on land that is the subject of a transitional application compared with other properties in the same Zone but I do not read the provisions as advocating that. A decision on the merits of any application must involve an assessment against the Zone purposes including to "Ensure that development respects the identified neighbourhood character" and "Implement neighbourhood character policy and adopted neighbourhood character guidelines" (my emphasis added). These purposes make clear that transitional applications must respond positively to and achieve the identified neighbourhood character outcomes which, in this case, are within Clause 22.06 of the Scheme. Character assessments are, by necessity, contextual. Clause 22.06-3 makes this point when it states under the exercise of discretion:

The extent to which the characteristics of the built and natural environment in the immediate vicinity of the site may determine a preferred future character that is different from that applying to the remainder of the precinct in which the site is located.

[12] Consequently, I find the argument included in the Council's submission (that because the proposal has five rather than four dwellings it must fail) does not sufficiently recognise that it is possible for a proposal that departs from the density and height restrictions in Clause 32.09 to still respond positively to, and achieve, the specified neighbourhood character outcomes in Clause 22.06.

1. I have previously made reference to the decision guidelines in Clause 22.06-3 cited by Senior Member Baird and the support that provides for a development which results in a different character to that applying in the remainder of Precinct C1.
2. Council's later written submission about The Town Hall Consulting Group Pty Ltd and Whitefeather Group Pty Ltd emphasised that in both applications the Tribunal was considering two storey developments and that consequently neither offended the important purpose 'to recognise areas of predominantly single and double storey residential development'. Whilst I accept that the Neighbourhood Residential Zone is applied to recognise single and double storey residential development, I am not persuaded that the term 'recognition' necessarily means the same as replicate or repeat. One interpretation of the purpose may be that it simply refers to or acknowledges an existing condition - a statement of where the zone will be applied. In contrast, the other four purposes look to a future condition or future outcome and include the words 'implement', 'manage', 'limit' and 'allow'.
3. I also agree with the permit applicant's comments in response to The Town Hall Consulting Group Pty Ltd and Whitefeather Group Pty Ltd that in a case concerning the transitional provisions one cannot use or apply the zone purpose dealing with limiting opportunities for increased residential development in a manner that achieves the same outcome as would be achieved by the provisions which have been set aside. The transitional provisions are specifically directed at exempting density and height. To limit height to two storeys would negate the benefits of the transitional provisions. Although not as relevant in this case as in The Town Hall Consulting Group Pty Ltd where Council was opposing five dwellings on two lots, I am also not persuaded that density should be severely limited where the transitional provisions are operative. As with height, to do so would negate the benefits of such provisions.
4. What is required, as is the case with all medium density housing applications, is an appropriate response to site context. That is a common theme in all of the transitional decisions referred to previously and is something specifically acknowledged in the decision guidelines in the neighbourhood character policy at Clause 22.06-3.
5. I will now discuss issues concerning site context and the main design aspects of the building.

Is the building an acceptable response to the site context and are there any unacceptable internal and external amenity impacts?

1. Council submits that the proposed height, bulk and breadth of the building are too great for this sensitive setting and that the height will only accentuate the building's bulk and breadth particularly when viewed from adjacent properties. I do not agree with that assessment.
2. For a start I do not agree that this is a sensitive setting. I distinguish the review site from other sites in neighbourhood character Precinct C1. I have already commented that although the site is in the Neighbourhood Residential 3 Zone, it is not a site within the residential hinterland where the preferred future character described for Precinct C1 is much in evidence. I accept that along Bay Street to the west and in nearby residential side streets the preferred future character, which in reality is as much about the existing character as about the future character, is a reasonably accurate commentary about that character.
3. But the review site is different. The gravelled surfaced site has a very bare and harsh appearance with little or no landscaping. Although the site is not zoned Commercial 1 as is other land around this intersection, its visual and physical relationship is to the commercial land around the five way intersection rather than to the residential areas surrounding the Commercial 1 Zone. In a functional and physical sense it forms part of the small cluster of commercial and non-residential activities located around the Bay Street and New Street intersection. That activity is primarily located along the New Street axis although it also extends eastwards on the north side of Bay Street towards the central part of the Bay Street activity centre.
4. The centre is not identified as a small neighbourhood activity centre on either Maps 1 or 2 attached to Clause 21.02. Nor is it recognised in Clauses 21.03-1 and 21.11 as a Major or Large Neighbourhood Activity Centre. Whilst I have to accept that the Bayside Planning Scheme does not recognise the activity centre, I consider it erroneous that Map 1 to Clause 21.02 (Existing Land Use Types) ignores the reality that the centre exists. This is not a defunct centre comprising unoccupied or underutilised commercial buildings. It appears to be commercially vibrant and the commercial zoning recognises it as distinct from the adjoining residential areas. The reality that it exists cannot be simply air brushed away or ignored since failure to acknowledge it creates a policy vacuum at the local level.
5. The review site has a hard edged, two storey hotel opposite on the southern side of the intersection and a disused service station site on the opposite eastern side of the intersection which is likely to be redeveloped with a tall, hard edged building given its Commercial 1 zoning. Adjacent that site to the north is a two storey vehicle service centre. On the south western corner of the intersection facing New Street is a group of two storey commercial buildings. All these two storey commercial buildings are taller than modern two storey residential buildings. The one exception to these corners developed or zoned for commercial purposes is the group of double storey dwellings on the southern side of Bay Street, east of Barkly Street. Because they are set back behind a treed public open space at the intersection, they appear visually recessive and do not have the same hard edged relationship to the intersection as does the review site.
6. Given these mostly hard edged interfaces I consider that the proposal comprising an apartment style development, rising to three storeys with zero or relatively small setbacks to the street frontages is an acceptable response. The necessity to raise floor levels to avoid flooding is a further factor suggesting that an apartment style development is appropriate on this site.
7. The notion of trying to provide, for example, front setbacks, side and rear setbacks, site coverage and permeability that achieved the standards referred to in Council's grounds of refusal would result in a development which would appear out of character in this context and moreover, be quite difficult to achieve given the need to raise floor levels well above footpath level. I accept that it is always possible to take a different approach to elevating buildings above defined flood levels, but I consider that the approach used in this application is acceptable, even if it results in a building different to the other residential development in the vicinity.
8. Ms Heggen provided a comparison summary of the height and setbacks of the building approved by the 2011 permit and the proposal I am considering. In general terms, boundary setbacks are much the same although there are relatively minor variations - some have decreased and some have increased. The overall height has been reduced from 12 metres to 10.5 metres which largely reflects the removal of pitched roof elements on the latest proposal. Although the top floor setback to the western boundary has been reduced from 12.7 metres to 7.2 metres, the roof angles away from this boundary to reduce visual bulk. The proposed building adopts a more contemporary design than the building approved under the 2011 permit.
9. Council is critical of the extent of building footprint. As a result of the minimal setbacks, site coverage is relatively high at 72% against 50% for the varied ResCode standard. Permeability is 10%. Clearly they represent a radical change from the existing gravel surfaced car park which has site coverage of zero and permeability of 100%. But comparisons with what exists are not very helpful given the site does not contain a building and has not done so for approximately four decades. I note that these varied ResCode standards in the Neighbourhood Residential 3 Zone have not changed since Council consented to the 2011 permit.
10. High site coverage is not necessarily unacceptable although it is usually indicative of small boundary setbacks and limited opportunities for in-ground planting as is the case in this application. However, depending on the site context, site coverage of 72% may well be acceptable. It does not automatically mean that a proposal is an over development and therefore unacceptable. What is important in terms of the ResCode standard referred to in Council's reasons for opposing the development, is whether the related objective for site coverage is satisfied. That objective for Standard B8 is:

To ensure that the site coverage respects the existing or preferred neighbourhood character and responds to the features of the site.

1. It is something of a circular argument given that I have already commented that a different preferred neighbourhood character is acceptable given the particular locational characteristics of the site.
2. I accept that the street setbacks are very small and may well be inappropriate in a suburban street. However, in this particular site context, I support the concept of extending the building almost to the street frontages. Not only does it maximise the useable space above flood level and space for basement parking but it provides dwellings that have a very close relationship with the street frontages and one that is very different to that normally available in the municipality. On the New Street frontage the steps leading up from footpath level give access to small terraces that provide outlook to the street. These are positioned approximately 500mm above the footpath. Whilst providing elevated terraces in this manner is uncommon, it responds to the particular context, provides for diversity in housing type and is not unacceptable for that reason. The two floors above ground floor are not setback further from the street frontages except that they are articulated by the materials, finishes and balconies which will provide visual interest and break up the mass of built form when viewed along the two street frontages.
3. The western boundary is the most sensitive as it adjoins the two side-by-side double storey dwellings at 65 and 65A Bay Street. The owners of these two properties were not parties to the hearing. To the west of No 65 Bay Street is the double storey dwelling occupied by Ms Regos and her family. Although she does not share a direct interface with the review site she is concerned about overlooking from west facing balconies and noise from those balconies. As discussed at the hearing, her side boundary is over 20 metres away from the review site. Given that the relevant overlooking standard in Clause 55 only applies within 9 metres there is no justification to require screening to prevent views into her property. In any event, balconies are screened to prevent overlooking into the nearest dwelling at No 65A Bay Street and that screening will have benefits for Ms Rego as well. It is also the case that most overlooking to her property is blocked by the intervening dwellings at Nos 65 and 65A Bay Street. The same also applies to noise emanating from the balconies where to a large extent the intervening dwellings will block out direct noise transmission to Ms Rego's property. I would not refuse the application because of the potential for noise to be heard by neighbours.
4. Although there are minor non compliances along the western boundary with the relevant ResCode side and rear setback standard as varied in the Neighbourhood Residential 3 Zone, these are primarily caused by the lift overrun and the lobby.
5. To the north, the single storey duplex pair of dwellings on the corner of New Street and Hayball Court is orientated away from the review site. The dwelling at the corner of New Street has been converted into a medical centre and is no longer used for residential purposes. The dwelling behind is still used for residential purposes but only has very short interface with the review site and is mostly behind No 65A Bay Street. Although Mr Kane suggested that the medical centre could revert to a dwelling, such a scenario seems most unlikely given its location opposite a car service centre and now disused service station, next to an open hotel car park and close to a busy intersection.
6. I accept that the proposed building will result in a very different outlook from the neighbouring properties and from the adjoining streets. One of the notable things about this application for review is the presence of only one third party. In my experience that is an unusual situation in Bayside. Although there may be a number of reasons for that absence, it seems to me that removal of an open air hotel car park with people and cars coming and going at all times of the day and night and its replacement with dwellings will result in a significant improvement in the amenity for nearby residents.
7. Council was also critical about the lack of landscaping opportunities, including the absence of substantial trees. I accept that landscaping is limited. Small planting strips, garden planters at ground level and climbers provide limited opportunities for softening the building from the street frontages. This is not a proposal for a building positioned within a landscaped setting with extensive gardens and canopy trees. My inspection confirmed that there is little vegetation around this intersection except for the small park in the south east corner of Bay and Barkly Streets. Street trees along both New and Bay Streets tend to be relatively small although in time they may grow and help contribute to a leafy character.
8. Although one of Council's grounds of refusal concerned inadequate private open space, I consider that the open space is acceptable in an apartment style development. Unlike many multi storey apartment developments none of the balconies or open space areas face south and all have access to sunlight at various times of the day. All lead off living areas and some also provide direct access/light from bedrooms. These are not designed as more spacious town house style dwellings and I consider these spaces will provide a reasonable level of amenity for future residents.
9. Section 3.3 of Ms Heggen's evidence statement dealt in some detail with internal and external amenity. I agree with her assessment and consider that these relatively small dwellings provide an alternative housing option to the more traditional free standing and generally much larger housing in this locality. To that extent the proposal accords with planning policies seeking to increase housing supply near services and public transport, to facilitate increased housing yield in appropriate locations including under utilised urban land, to facilitate social and affordable housing and to encourage higher density housing development on well located sites

Is there any parking or traffic reasons to refuse the application?

1. One of Council's grounds concerned lack of visitor parking and Ms Regos is also concerned about traffic and parking. Based on the parking requirements set out in Clause 52.06, the only reason a permit is required for parking is the shortfall of six visitor car spaces.[7]
2. A total of 65 spaces are being provided (33 for residents and 32 for patrons of the New Bay Hotel). The parking is to be provided in three basement levels accessed via a crossover and ramp to New Street at the northern end of the site. Twenty bicycle spaces are also provided. Council's Traffic Engineer supported both the reduction in visitor parking and, subject to conditions, the layout of the basement car park.
3. Ms Marshall prepared a witness statement and attended to explain her opinions and answer questions. The Planning Scheme allows for a reduction in on-site parking subject to the preparation of a Car Parking Demand Assessment. Clause 52.06-6 sets out what must be taken into account in such a Demand Assessment and Section 8 of Ms Marshall's evidence statement provided such an assessment. Based on her analysis she estimates a peak demand of 2 visitor spaces during business hours and 3 spaces during the weekends and evenings.
4. As part of her assessment, a series of parking surveys were undertaken in New and Bay Streets within 200 metres of the site. The surveys reveal that at the busiest time at 3pm on a Friday the minimum number of vacant spaces is 34. Even excluding the less conveniently accessible spaces south of the intersection and on the south side of Bay Street, the minimum number of vacant spaces at 3pm on a Friday is 19. Even allowing for an underestimation of demand, it is clear that the requirement for six visitor spaces will not result in on-street parking reaching saturation point.
5. I agree with Ms Marshall that the extra traffic generated by the development will have minimal impact on New Street and the surrounding road network.

1. The proposal benefits from transitional provisions applying to the application but it also largely replicates the built form which Council has previously supported on this site and for which a current permit exists. Although the number of dwellings in the building has almost tripled, I am not persuaded there are any negative impacts arising from that increase in dwelling numbers. Indeed the additional, smaller sized dwellings provide more diversity in housing supply in this locality and potentially more affordable housing in a very well serviced location. The proposal also supports achievement of a 20 minute neighbourhood - a key outcome sought by Plan Melbourne.
2. Clause 10.04 of the Bayside Planning Scheme requires me to endeavour to integrate the range of 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. Despite the introduction of the Neighbourhood Residential Zone and changes to local policies, I consider that on balance the proposal does achieve a net community benefit.
3. However, achieving that net community benefit does not mean that there will not be a very significant change to the appearance and character of the existing open, gravel car park. Development of the review site for any type of housing will significantly change the existing character but I consider there will be amenity benefits to nearby neighbours in replacing the hotel car park with dwellings.

1. In assessing Council's draft permit conditions I have made a number of changes to reflect submissions and discussion about them at the hearing. In particular I have modified or deleted a number of parking related conditions that were discussed with Ms Marshall.

1. Having regard to the above I will direct that a permit issue subject to the conditions set out in Appendix A.

• Construction of two or more dwellings on a lot in the Neighbourhood Residential Zone (NRZ3).
• Construction of a building or construction or carrying out works in the Special Building Overlay (SBO).
• Reduction in the carparking requirements in Clause 52.06.

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:
   • (a) A schedule of all external materials and finishes. The schedule must show the materials, colour and finish of all external walls, roof, fascias, window frames and paving (including car park surfacing).
   • (b) Basement ramps designed in accordance with conditions 17-21 of this permit.
   • (c) The communal space to have screening to 1.7m above finished floor level around the perimeter.
   • (d) The sightline requirements of conditions 23 and 24.
   • (e) All balcony screens to the New Street elevation are to have a minimum 25% transparency. Varying materials or techniques should be used.
   • (f) Privacy screens between balconies are to be a minimum 1.7m high.
   • (g) All screens across west elevation first floor balconies to be 1.7m high.
   • (h) Details of window treatments to habitable room windows abutting the light wells.
   • (i) Details of locations and dimensions of all storage areas.
   • (j) The location of mailboxes for all dwellings.
   • (k) Details of car parking signage in accordance with condition 27-28.
   • (l) A Landscape Plan in accordance with condition 4 of this permit. The Landscape Plan must show appropriate planting within the New Street and Bay Street frontages. (Banksia Integrifolia are not to be planted along the western boundary, a more suitable plant is to be chosen).
   • (m) Tree protection fencing for the street tree to Bay Street in accordance with condition 5 of this permit.
   • (n) The provision of a disabled persons car parking space.
   • (o) The locations of all plant and equipment, including air conditioning units.
2. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3. Before the occupation of the site commences or by such later date as is approved in writing by the Responsible Authority, all buildings and works and the conditions of this permit must be carried out and completed to the satisfaction of the Responsible Authority.
4. Before the development starts, a Landscape Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The Landscape Plan must show:
   • (a) A survey (including botanical names) of all existing vegetation to be retained and/or removed.
   • (b) Buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary.
   • (c) Details of surface finishes of pathways and driveways.
   • (d) Details of water sensitive urban design elements to be incorporated and the plant species to be used.
   • (e) 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.
   • (f) Landscaping and planting within all open areas of the site.
   • (g) An in-ground irrigation system to all landscaped areas.

All species selected must be to the satisfaction of the Responsible Authority.

1. Tree protection fencing must be established around the street trees being retained prior to commencement of any works and maintained until all works on site are complete. The fencing is to be constructed and secured so its position cannot be modified by site workers. The fencing is to encompass the entire nature strip adjacent to the trees with the exception of the crossovers. The Tree Protection Zone is to be established and maintained in accordance with Australian Standards 4970 Protection of trees on development sites.
2. The applicant must apply for the nominated legal point of discharge for the development where stormwater run-off must be collected and free drained to Council's drainage assets to Council standards.
3. Stormwater discharge must be retained for the portion above the discharge calculated using a Coefficient of Runoff of 0.35. The development is to have a Stormwater Detention System installed, the design capacity to be to the satisfaction of the Responsible Authority.
4. Any seepage/agricultural drainage water must be filtered to rain water clarity and must be pumped to the nearest Council Drain/Pit and not be discharged to the kerb and channel unless directed otherwise. The design must meet the requirements of Council's discharge of Pumped Subterranean Water Associated with Basements or Below-Ground Structures.
5. All on-site stormwater is to be collected from the hard surface areas and must not be allowed to flow uncontrolled onto adjoining properties. The on-site drainage system must prevent discharge from each driveway onto the footpath. Such a system may include either:
   • (a) A trench grate (150mm minimum internal width) located within the property and/or Shaping the driveway so that water is collected in a grated pit on the property;

1. Before the development begins, three sets of detailed plans indicating the method of stormwater discharge to the nominated Legal Point of Discharge (and Stormwater Detention Systems where applicable) must be lodged with Council's Engineering Services department for approval.
2. The driveway/parking areas/paved courtyards/paths and 'pervious' pavements must be graded/drained to prevent stormwater discharge onto the front footpath and into adjacent properties.
3. There are two Council pits currently located within the property with a short length of drainage pipe to a nearby pit under the footpath that would become redundant. The developer must cover any costs associated with the removal, sealing and backfilling of these assets to the satisfaction of the Responsible Authority.
4. Before the occupation of the development, the area set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:
   • (a) Constructed.
   • (b) Properly formed to such levels that they can be used in accordance with the plans.
   • (c) Surfaced with an all-weather-seal coat.
   • (d) Drained.
   • (e) Line marked to indicate each car space and all access lanes.
   • (f) Clearly marked to show the direction of traffic along access lanes and driveways.

to the satisfaction of the Responsible Authority.

1. Car spaces, access lanes and driveways must be kept available for these purposes at all times.
2. All car parking spaces must be designed to allow all vehicles to drive forwards both when entering and leaving the property.
3. Vehicular crossings must be constructed to the road to suit the proposed driveways to the satisfaction of the Responsible Authority and any existing crossing or crossing opening must be removed and replaced with footpath, nature strip, and kerb and channel to the satisfaction of the Responsible Authority.
4. The vehicle ramp is to be designed generally in accordance with the Australian Standard AS2890.1 and be to the satisfaction of the Responsible Authority.
5. The minimum height clearance at the entrance and throughout the car parks is 2.2m as per AS2890.1.
6. The kerb height of the main ramp to be limited to 150mm (max) on either side.
7. For all basement columns, the offset from parking aisle is 0.25m for 4.9m long car parking bays.
8. A 5.5m wide vehicle crossing is to be constructed with a minimum 1m offset from the northern property boundary, centred to the driveway/ramp. A 60-deg splay is to be provided along the southern edge of the vehicle crossing.
9. The owner must bear the cost to remove and reinstate any street furniture or infrastructure items to provide the required access to the proposed development.
10. All structures including foliage, front fences etc within the triangle must be limited to a maximum height of 900mm or kept clear.
11. If the northern boundary fence is replaced, the height for the first 3 metres (measured from the footpath) is to be limited to 900mm.

1. Prior to the commencement of any works, a Construction Management Plan must be submitted to and be approved by the Responsible Authority. The Construction Management Plan must address, but is not limited to:
   • (a) Control of noise and airborne matter, deliveries, vehicle access, worker car parking, damage to public assets, and contact numbers for complaints;
   • (b) No water containing oil, foam, grease, scum or litter to be discharged to the stormwater drainage system from the site;
   • (c) All stored wastes are kept in designated areas or covered containers that prevent escape into the stormwater system;
   • (d) The amount of mud, dirt, sand, soil, clay or stones deposited by vehicles on the abutting roads is minimised when vehicles are leaving the site;
   • (e) No mud, dirt, sand, soil, clay or stones are washed into, or are allowed to enter the stormwater drainage system;
   • (f) The site is developed and managed to minimise the risks of stormwater pollution through the contamination of run-off by chemicals, sediments, animal wastes or gross pollutants in accordance with currently accepted best practice.

All works must accord with the approved Construction Management Plan to the satisfaction of the Responsible Authority.

1. Prior to the commencement of any works, a Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must state that all waste will be collected from within the site by private contractor and not Council contractors.

1. Before the commencement of works a Parking Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plan must include:
   • (a) Be signed to identify the upper basement level as it is to be used by hotel patrons only.
   • (b) The means by which the direction of traffic and pedestrian flows to and from car parking areas will be controlled both on and off site.
2. Signage must be provided within the New Bay Hotel directing patrons to the location of the hotel carpark to the north at 329-331 New Street.

1. Prior to the commencement of works, detailed plans to the satisfaction of the Responsible Authority must be submitted to and be approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be in accordance with the guidelines outlined in Clause 22.08 of the Bayside Planning Scheme and must show:
   • (a) The type of water sensitive urban design stormwater treatment measures to be used.
   • (b) The location of the water sensitive urban design stormwater treatment measures in relation to buildings, sealed surfaces and landscaping areas.
   • (c) Design details of the water sensitive urban design stormwater treatment measures, including cross sections.
   • (d) These plans must be accompanied by a report from an industry accepted performance measurement tool, which details the treatment performance achieved a minimum 100% STORM rating and demonstrates the level of compliance with the Urban Stormwater Best Practice Environmental Management Guidelines, CSIRO 1999.

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

1. All pipes, fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
2. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building without the written consent of the Responsible Authority.
3. Any security boom, barrier or similar device controlling vehicular access to the premises must be located a minimum of six metres inside the property to allow vehicles to stand clear of the street, pavement and footpath.

1. No Polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
2. Finished ground floor levels must be no lower than 7.38 to Australian Height Datum (AHD). The applicable flood level is 7.08 metres to AHD.
3. The entry/exit driveway of the basement car park must incorporate a flood proof apex of a minimum of 7.38 metres to Australian Height Datum.
4. All doors, windows, vents and openings to the basement car park must be a minimum of 300mm above the applicable flood level.
5. A minimum setback of 1.15 metres must be provided from the east (New Street) property boundary. Any steps located within this setback must be of open style and any landscaping must be in-ground with no change to existing surface levels.
6. Any new fencing or gates along the east (New Street) property boundary must be of an open style of construction to allow for the passage of overland flows.
7. Prior to the commencement of works a separate application, direct to Melbourne Water, must be made for any new or modified storm water connection to Melbourne Water's drains or watercourses. Prior to accepting an application, evidence must be provided demonstrating that Council considers that it is not feasible to connect to the local drainage system. Contact Asset Services on telephone 9679 6614 for Melbourne Water's connection requirements, including payment of appropriate fees.

1. This permit will expire if one of the following circumstances applies:
   • (a) The development is not started within two years of the issued date of this permit.
   • (b) The development is not completed within four years of the issued date of this permit.

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

--- End of Conditions ---

[1] I have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I do not recite or refer to all of the contents of those documents in these reasons.

[3] For example, Clauses 11.04 and 16.01.

[5] Verbuk v Bayside CC [2014] VCAT 967 and Bayside Property Projects Pty Ltd v Bayside CC [2014] VCAT 958.

[6] The Town Hall Consulting Group Pty Ltd v Bayside CC [2014] VCAT 1146 and Whitefeather Group Pty Ltd v Bayside CC [2014] VCAT 1193.

[7] One additional resident space is being provided in excess of the rate required by Clause 52.06. Hence the request to waive the requirement for six visitor spaces.