Broadland Capital Pty Ltd v Port Phillip CC & Ors [2010] VCAT 1007

1. Leave is given to join Tina Morrison as a party to the proceeding.
2. The decision of the responsible authority in relation to permit application no. 905/2009 is set aside. A permit is granted and is to be issued. The permit relates to the land at No. 41-49 Bank Street, South Melbourne. The permit will allow the following - "Use and develop the site for a convenience restaurant, residential hotel and dwellings in a 16 storey building, a reduction in car parking, and waiver of a loading bay, in accordance with the endorsed plans". The permit is subject to the conditions included in Appendix A.

Mr J Cicero, solicitor of Best Hooper solicitors. Expert evidence was called from Mr S McGurn, town planner, Fulcrum Town Planners, and Ms C Dunstan, traffic engineer, Traffix Group. An overview of the plans was presented by the project architect, Mr J Hare, Artisan Architects.

Application under Section 79 of the Planning and Environment Act 1987. [1]

Use and develop the site for a convenience restaurant (100 square metre café), residential hotel (88 serviced apartments) and dwellings (126 one and two bedroom units) in a 16 storey building. A total of 113 on-site car spaces is proposed over several levels, 26 in 13 dependent tandem car stackers to service the hotel.

Mixed Use Zone. Design and Development Overlay (Schedule 5 Albert Road, Kings Way North, St Kilda Road North). Special Building Overlay.

Cl. 32.04 for buildings and works, Cl. 43.02 for buildings and works, Cl. 44.05 for buildings and works, Cl. 52.06 for a reduction in car parking, Cl. 52.07 for a waiver of a loading bay for the café, and Cl. 52.34 for the provision of bicycle parking.

The site is located on the south-east side of Bank Street. It is 1,434 square metres in area. It contains a three storey building with mostly rear car parking. The site also abuts Little Bank Street to its rear. A private lane, associated with the abutting Officeworks site, is to the west[2]. The area comprises a mix of low and higher rise residential and commercial buildings.

6 June 2010 as parties were advised at the hearing.

1. A planning permit application was lodged with the Port Phillip City Council to construct a 16 storey building for a hotel (88 rooms) and dwellings (126) as well as a ground level convenience restaurant (café). As the Council failed to determine the permit application within the prescribed time, the permit applicant lodged this proceeding with the Tribunal requesting the grant of a permit. Since the application was lodged, the Council has resolved to support the proposal whereas a number of property owners in the vicinity of the site oppose the permit application on multiple grounds.
2. Based on the grounds advanced by the parties, and having regard to the applicable provisions of the Port Phillip Planning Scheme, the key questions for our determination are:
   • What is the planning context that provides the basis for assessment?
   • Is the proposal an acceptable response to the design objectives and outcomes of DDO3?
   • Is the proposal otherwise acceptable in its context?
   • Are the amount of car spaces and the operation of on-site parking acceptable?
   • Would there be unreasonable impacts on traffic movement on Banks Street and any other street?
   • Would potential off-site amenity impacts be acceptable?
   • Do any other matters warrant refusal of the permit application?
3. We must decide whether to grant a permit. Having considered all submissions with regard to the applicable policies and provisions of the Port Phillip Planning Scheme[4], we have decided to allow the Application. Our reasons follow.

WHAT IS THE PLANNING CONTEXT THAT PROVIDES THE BASIS FOR ASSESSMENT?

1. The review site is within an area targeted by the City of Port Phillip for new residential growth as part of a wider housing strategy that guides intensive development to nominated areas and tempers development in more sensitive locations (such as for heritage reasons).[5]
2. Amendment C62 is not at a stage that it can be regarded as a seriously entertained proposal, however, it demonstrates that the Council's current strategic planning does not depart from the view that the precinct is focus for growth. This part of South Melbourne is identified as an area for substantial growth in the exhibited document.
3. The application of DDO3 and Clause 22.06 provide the bases for pursuing the Council's strategic outcomes for the area and related strategies in the Scheme such as those addressing urban design and the public realm. We have also had regard to the Guidelines for Higher Density Housing as required by Clause 19.03. We have further had regard to other State and local policies relevant to the matters in dispute such as tourism and traffic management but do not recite them in these reasons.
4. We are aware that Clause 21.05 refers to neighbourhood character and identifies the review site as being within Character Area 74. It is policy to assess proposals in terms of the Urban Design For Non-Residential and Multi-Unit Residential Development Policy (Clause 22.06) "to encourage new development to respond to the site and its context, contribute positively to neighbourhood character, be energy efficient and minimise detrimental impacts on neighbouring properties". That policy has a series of performance measures which we have considered in detail. It is also a purpose of the Mixed Use Zone to encourage residential development that respects the neighbourhood character. An assessment of character and off-site impacts must have regard to the applicable planning context, as we have discussed above. Existing lower scale, two and three storey, buildings in the DDO3 area are not, therefore, the benchmark for assessment.

IS THE PROPOSAL AN ACCEPTABLE RESPONSE TO THE DESIGN OBJECTIVES AND OUTCOMES OF DDO3?

1. The provisions of DDO3 are intended to achieve specific urban design outcomes for the area generally to the south of Dorcas Street. Design objectives apply to the whole Overlay area. DDO3 is divided into eight precincts, each with a preferred maximum height. The preferred maximum height for DDO3-5 is 35 metres at a setback of 5 metres or more from a road boundary[6]. Less then 5 metres from a road boundary, the maximum preferred height is 9 metres.
2. Design outcomes for each precinct must be achieved where a development is proposed to exceed the preferred maximum height. That is the case in this proceeding where the podium form (1-3 metres above the preferred height); the setback from Little Bank Street (4.3 metres); and overall tower height (46.6 metres, 11.6 metres above the preferred maximum height) vary from the preferred maxima.
3. While the Council and Applicant agree that the proposal achieves the design objectives and outcomes, that is challenged in submissions and statements of grounds by Respondent Objectors. They submitted there is no justification for the building to exceed 35 metres. Some say the required transition is not achieved. Some say the development will be significantly taller than the immediately adjacent properties including Officeworks. A number recommend that the building should be lowered to 35 metres and the podium limited to 9 metres.
4. We do not consider the proposal must be lowered to achieve the design objectives and outcomes of DDO3 and DDO3-5. Rather, we accept the submissions of the Council and Applicant that the proposal meets all of the required objectives and outcomes. The conclusions of our assessment with respect to achievement of the design objectives of DDO3 follows:

To provide for medium to high rise development in the area zoned Business 5 to the north east of Kings Way, and the area zoned Mixed Use that supports the strategic role of these areas as a location for office development in the municipality, and residential developments at a higher density and larger scale than in established residential areas of the municipality.

Achieved. The site is within the Mixed Use Zone. The proposal includes a hotel and higher density private dwellings at a scale that would not be acceptable in most established residential areas. The proposal would support the land use and urban design strategies being pursued by the Council for this area.

To create a stepping down in built form as a transition between the high rise buildings in St Kilda and Queens Roads, and the residential scale of the surrounding neighbourhood.

Achieved. The proposal will step down from the existing higher forms along St Kilda Road and the maximum preferred height of 60 metres that applies in DDO3-7. While the preferred maximum height in DDO3-6, along the south side of Dorcas Street, is 45 metres, existing development in this area and along the north side of Bank Street near the site (DDO3-5) range in height from 36.6 - 50.1 metres. The building adopts the same height at No. 36 Bank Street opposite (46.6 metres) but would be higher than No. 88 Park Street (35 metres) to the south-west. We find the proposal achieves the urban design strategy contained in DDO3 and the Scheme.

To minimise amenity impacts upon Albert Park, streets and other open space and public places in the area as a result of overshadowing, wind tunnelling or visual bulk.

Achieved. The design provides reasonable setbacks from the public roads and boundaries to ensure a pedestrian scale is achieved and amenity impacts are minimised. The public interface is activated through the café, gym, and design detailing.

To maintain and consolidate the landscaping as an important and distinctive feature of the area by requiring consistent front and side road boundary setbacks and high quality landscaping.

The design outcome for DDO3-5 (see below) requires a hard solid edged character. Other properties along Bank Street do not provide landscaped front setbacks. The proposal is consistent with the established pattern in new development. A contribution to the public realm is to be made through street trees and visual interest associated with the façades.

1. With respect to the required outcomes for height at DDO3-5, we find:

A pedestrian scale exists at the street frontage and amenity impacts as a result of overshadowing, visual bulk or wind tunnelling are minimised.

Achieved. The podium height and form would achieve a pedestrian scale unified by the soundwave motif and other elements in the façade design (subject to some additional detailing that can be dealt with by permit conditions as proposed by the Council).

The streetscape in streets other than Kings Way has a hard edged solid character.

Building height forms as a transition between St Kilda Road and Kings Way.

We agree with Respondent Objectors that the proposed development will be taller than some of its neighbours such as Officeworks. However, redevelopment of sites with 2 and 3 storey buildings can be expected in time mindful that they are not constrained by factors such as a Heritage Overlay. The existing built form represented by this scale of development is not how the Council envisages this area remaining or developing into the future and therefore cannot set the benchmark for assessment.

1. The architectural expression of the proposed building and its lower façade were criticised. Notable among these comments by Objectors was reference to the soundwave motif that is intended to provide a link with the use of the site by radio station 3AW. We are satisfied that the podium form, with the motif façade detailing, and articulation through the tower element, are acceptable. While not to everyone's taste, we find the styling would make a positive contribution to the locality.
2. There was a submission about the garage door to Bank Street and its appearance in the streetscape. Some degree of permeability is required by the Council for safety reasons but we consider the detailed design of this element can be addressed through permit conditions.
3. For these reasons, we conclude the built form and urban design outcomes of the proposal accord with the provisions of DDO3 and applicable policies within the Scheme.

ARE OTHER POLICIES WITH RESPECT TO MULTI LEVEL DEVELOPMENT ACHIEVED?

1. We have referred to other applicable policies and provisions such as Guidelines for Higher Density Housing and Clause 22.06. We do not intend reciting every point in those policies.
2. It will suffice for us to record that the proposal performs well when tested against both the Guidelines and Clause 22.06 including in terms of its relationship to the public realm, its lack of impact on any landmarks, its architectural quality and façade treatments, its activation and passive surveillance of the public realm, and planning for the location of air conditioning. The design relies on car parking accessed in part from Bank Street with the balance from Little Bank Street. We are satisfied this is an acceptable arrangement in design terms considering the extent of property frontage that would otherwise be occupied by the café and lobbies.

ARE THE AMOUNT OF CAR SPACES AND THE OPERATION OF ON-SITE PARKING ACCEPTABLE?

1. Another of the main grounds relied upon by Respondent Objectors is that insufficient car parking is proposed on-site to service the hotel and dwellings.
2. We do not agree. The proposal seeks a reduction from the standard rates contained in Clause 52.06. It is proposed to provide one car space for each two bedroom unit, 0.62 spaces for each one bedroom unit, 0.3 spaces per room for the hotel and one space (staff) for the café. The hotel spaces would be in the form of dependent car stackers operated through a valet system as described in Ms Dunstan's evidence. Several motorcycle/motor scooter spaces and a very large number of bicycle parking units are also proposed in addition to arrangements to facilitate a car share scheme.
3. Parking in the area is pressured, particularly during the day and when events are occurring in the near and wider area. Despite that, we accept the submissions made by the Council that a reduction from the standards set in Clause 52.06 is entirely appropriate in this location given the excellent access to public transport, pedestrian and bicycle facilities. In addition, options such as parking for bicycles and motorcycles/scooters and access to a car share scheme are further, desirable, alternatives to on-site car parking for each dwelling. The empirical data indicates the proposed level of on-site parking is suitable for the style of units proposed; less could be acceptable as demand may well be lower based on current trends within the City of Port Phillip as explained by Mr Hewet.
4. Our attention was drawn to other apartment buildings in the area that have a higher ratio of car parking per unit. We have noted those examples but do not consider they provide a precedent that must be followed. Importantly, the housing product is not necessarily the same. In addition, we expect attitudes by the responsible authority and some in the community to vehicle use have changed since a number of those developments were built.
5. Doubt was raised about reliance on a private car share scheme which may not always be available. We agree with Ms Dunstan's observation that these schemes are growing. Even if this option was not available for occupants of the development we would find the parking allocation to be acceptable given the small unit sizes and desirability of offering some units at a more affordable price without car parking.
6. Doubt was also raised about the workability of the valet stackers. We are satisfied that this aspect of the car parking provision can work as proposed and there is space within the access area associated with this part of the car park for vehicle waiting/manoeuvring without impacting upon Little Bank Street. We are also satisfied on Ms Dunstan's evidence that the amount of parking for the hotel component is acceptable.
7. Finally, we find the layout of the car park to be acceptable based on Ms Dunstan's evidence. We accept her evidence that the access arrangements from Little Bank Street do not require adjustments.
8. For these reasons, we find the amount of car parking and operation of parking to be acceptable in terms of Clause 52.06 and applicable policies.

WOULD THERE BE UNREASONABLE IMPACTS ON TRAFFIC MOVEMENT ON BANKS STREET AND ANY OTHER STREET?

1. Traffic is another concern identified by existing residents. The statements of grounds, and Mr Scaramuzzino's submission, referred to the potential of the proposal to exacerbate existing difficulties with respect to traffic movement in the area and along Little Bank Street. This was said to add significant dangers and nuisance for residents, pedestrians and drivers.
2. We have considered the existing situation of traffic in this area with the benefit of own experience of travelling into and through the locality and various times of the day and night, weekdays and weekends. We are aware that traffic can be congested and accept that the proposal would add to traffic in Bank Street, Little Bank Street and the nearby streets compared with the existing operation of the site. This is, however, an expected outcome of the policies set in the Scheme for growth in this part of South Melbourne and, as road manager, it is something we understand the Council is mindful of. In this context, we do not accept submissions that there will be a need to upgrade road infrastructure that should be borne by the proponent. This is a matter for the Council and, if involving roads for which VicRoads is responsible (eg. Kings Way), that authority as well.
3. We received competing submissions with respect to the proposed access arrangements to parking areas. The proposal utilises both Bank Street and Little Bank Street whereas some parties wish all access to be from the rear while others say all access should be from Bank Street.
4. Little Bank Street is a one way street relied upon today to service 26 car spaces on the review site. The proposed arrangements involve 44 spaces being accessed from Little Bank Street for the hotel, café and some dwellings. We consider the split in parking access is reasonable and does not represent an unacceptable increase in traffic using Little Bank Street even when being mindful that future development in the area may also add to vehicle movement.
5. There is no reliance in the proposal on use of the private lane which the site abuts. That is appropriate as it is associated with another land owner.
6. Ms Dunstan's evidence addresses loading arrangements for the café and hotel. We accept her evidence that the use of on-street loading (such an area is currently available along the site's frontage) for the café is acceptable given the café's small size and the fact that most loading would involve vans. We also accept her evidence that the hotel could use its parking area for loading on occasion if necessary. We consider loading can work satisfactory without undue impact on other users of the road/lane network or on nearby residents such as those at No. 88 Bank Street.

1. Residents raised a number of concerns with respect to the potential for the proposal to impact on the amenity of properties surrounding, near to, and opposite the review site. We address these matters next in the context of the Guidelines for Higher Density Housing. Clause 55, referred to in some submissions, does not technically apply although it is referenced in the Guidelines with respect to some design suggestions.
2. Loss of privacy/overlooking from windows, balconies and gym. Residents near to the site referred to their concerns about overlooking from occupants of the proposed development including the gym and communal areas around the gym. The nearest affected windows are some 30 metres away. Clause 55 is referred to in the Guidelines where Design Suggestion 2.9.1 that states in part: "Existing dwellings should be protected from potential overlooking in accordance with the requirements of Clause 55 of planning schemes." Standard B22 of Clause 55 would require screening for windows and balconies within a 9 metre arc. Given the separation distances, we do not accept recommendations made in some statements of grounds for balconies, windows and the gym to be modified to protect the privacy of existing dwellings. Reorienting these elements away from the street is unnecessary to protect the privacy of existing residents and would reduce the level of passive surveillance of the public realm.
3. Impact on daylight and sunlight access. Several statements of grounds referred to impacts on daylight and sunlight as a consequence for other apartments in the area notably the south-facing units in The Capri. Reference was made to the provisions of Clause 55 with respect to daylight to existing habitable rooms. We have been guided by the policies at Clause 22.06 and Guidelines for Higher Density Housing in reaching our conclusion that the substantial separation distances between existing dwellings and the proposed development means that any daylight and sunlight impacts are within acceptable degrees of change.
4. Impacts on views. While not strongly advanced in statements of grounds, we expect some residents might be concerned about a loss of view. While this is understandable, we have indicated above that the area is earmarked for higher density development and that will bring a change in outlook for existing residents who enjoy views over under-developed lots.
5. Noise. Several parties referred to the potential for noise emissions from the site to impact on the amenity of the area. Reference was made to the likely occupants of the dwellings as younger people who would add to current problems with respect to late night noise. Concern was expressed about the potential for disturbance arising from the collection of waste.
6. These matters do not cause the proposal to fail or demand modifications to the development. Waste collection will be dealt with through a waste management plan for approval by the Council. The Council will determine suitable collection hours having regard to other users and activities in the area. The potential for noise from occupants of the development is likely to be an issue for other occupants in the same building that would be able to be addressed through the body corporate. Noise emissions beyond the site would need to be dealt with through other avenues as there is nothing fundamentally flawed in the design in this respect.

DO ANY OTHER MATTERS WARRANT REJECTION OF THE PERMIT APPLICATION?

1. Dwelling Mix. We have alluded to this matter in the context of submissions about noise. Several statements of grounds referred to the number of one and two bedroom apartments in the proposed development that was said to fail to comply with the dwelling diversity objective of Clause 55.02-3 and would be likely to attract transient residents and students.
2. As noted, Clause 55 does not apply to this permit application but housing diversity is brought into consideration through the Guidelines for Higher Density Housing and policies at Clauses 21.05-1 and 22.09. It is true that the majority of dwellings are small one bedroom units. That, in itself, does not mean the proposal should be rejected. That the building might house tenants, students or others deemed undesirable by some residents is not a factor that carries weight in a balanced assessment.
3. Rather, as noted in the Guidelines, higher density residential development is expected to cater for a diverse range of household types in the future, particularly smaller households. The municipality and location would be attractive to many different occupant profiles and the format offered would add to the diversity and affordability in housing in the City as sought by the Council.
4. Bedroom layouts. Several parties referred to the layout of the proposed dwellings and questioned the extent to which natural light would be achieved given the small size and layouts.
5. Corner units are well placed to receive daylight and sunlight and this issue instead relates to the east and west facing dwellings. We have considered this aspect of the design and layout of the dwellings mindful that there would be scope to vary the internal layout of some units so that less floor area is devoted to a corridor of light to achieve a bedroom window on an external wall. While Mr Cicero submitted there are inconsistencies in approach as to the use of borrowed light, we consider the suitability of such a layout is usually a function of the design itself. Factors such as the orientation of units, the depth of the room across which light would be borrowed, what else might intervene between the window and internal bedroom (such as a bathroom wall), the number of units relying on borrowed light, and the overall amenity of other habitable spaces might all be relevant to a decision on this point. In small units, sliding glazed panels can assist to integrate the bedrooms into the living areas or to close them off from the living areas, depending on individual preferences.
6. In the current case, we would have no issue with some units being modified to provide for borrowed light given the modest length of the living areas and good access to light in those living areas. We will include this as a condition on the basis that any fixed or moveable panel that separates the bedroom from the living area be translucent in nature so as to allow penetration of light into the bedroom while providing privacy.
7. Open space for smaller dwellings. The balconies for some units are small but were found to be acceptable by the Council given communal balconies at Level 4 and the proximity of public open space. We accept those submissions.
8. Construction. Concerns about noise, traffic congestion and other problems arising from the construction of the development were identified in a number of statements of grounds.
9. Construction will give rise to noise and inconvenience insofar as the operation of the road and footpath networks may be disturbed during this phase. This is not, however, a ground upon which the permit application should be rejected. A construction management plan can address the logistics of the construction process as is a usual requirement on permits involving larger scale projects.
10. Structural issues. Some parties referred to the potential for the development to affect the foundations of nearby buildings. This is not a matter we need to investigate in this proceeding. It is a matter that will be addressed through a building approval.
11. Television reception. There is no evidence that reception will be adversely affected. Although large buildings may have the potential to create shadows and affect television reception, reception could be affected by a variety of factors including buildings near to the transmission source. It is not a matter that warrants conditions on a permit or rejection of the proposal.

1. For the above reasons, we find that the proposal would produce an acceptable outcome having regard to the site's context and directions of the Port Phillip Planning Scheme. We will direct the issue of a permit subject to conditions.

Use and develop the site for a convenience restaurant, residential hotel and dwellings in a 16 storey building, a reduction in car parking, and waiver of a loading bay, in accordance with the endorsed plans.

Before the use and/or 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 advertised plans but modified to show:

1. All changes shown on plans received on 18 January 2010 being TP00, TP01 Rev B, TP02 Rev A, TP03 Rev A, TP04 Rev A, TP05 Rev A, TP06 Rev A, TP07 Rev A, TP08 Rev A, TP09, TP10 Rev A, TP11, TP12, TP13 Rev A, TP14 Rev A and TP15 Rev A drawn by Artisan Architects and showing changes including raising the floor level of the car parking areas to satisfy Melbourne Water conditions, continuation of the soundwave motif to the rear, introducing balcony cantilevering over the footpath, additional recesses at the ends of the corridors and minor internal changes and relabelling.
2. A note adjacent to the proposed and adjacent existing laneway vehicle crossing stating: "Remove existing kerb, channel, footpath and laneway vehicle crossing and construct new triple width crossing in accordance with Council's standard drawing number SD 4101".

1. The proposed vehicle crossover to be constructed at least 2.2m from the base of the existing street tree, reducing the width of the vehicle crossover to 5m.

1. A notation stating that the existing vehicle crossover will be reinstated prior to the commencement of the development.
2. The incorporation of Urban Art in the development, in accordance with Council's Urban Art Strategy, viewable from the frontage/public realm.
3. The proposed ground and upper level car park roller doors to have at least 50% transparency to ensure sightline of vehicles and footpath is maintained. The roller door fronting Bank Street is to be treated in a manner that provides visual interest rather than a standard grille.
4. The layout of dwellings at levels 8 - 14 may be varied to allow one bedroom in a dwelling to rely on borrowed light. Where a bedroom relies on borrowed light, the fixed or moveable panel that separates the bedroom from the adjoining living area (from which the light is being borrowed) must include a translucent panel to allow the penetration of daylight.
5. Stormwater treatment works as required under Condition 22.
6. Clearance height to the front and rear car parking areas to be clearly shown above the roller doors and visible from the street and laneway respectively.
7. The notation of any sustainable design initiatives or services required under Condition 5.
8. A full schedule of materials, finishes and paint colours, including colour samples in a form that is able to be endorsed and held on file. Glazing must have low reflectivity.

The development and the layout of the uses as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

Once the development has started it must be continued and completed to the satisfaction of the responsible authority.

All external materials, finishes and colours as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

Before the development commences a Sustainable Design Statement that outlines proposed sustainable design initiatives must be submitted to and approved by the responsible authority. The design initiatives must be generally in accordance with the Sustainability Statement prepared by Ark Resources and received on 18 September 2009 but modified to the satisfaction of the responsible authority.

Upon approval the statement will be endorsed as part of the planning permit and the project must incorporate the sustainable design initiatives listed.

The management of waste on the premises must conform to the endorsed Waste Management Plan to the satisfaction of the responsible authority.

Prior to the commencement of the development allowed by this permit, a construction management plan must be prepared, including a works program, with the objective of minimising the impact of construction works on the nearby residential properties to the satisfaction of the responsible authority. The plan must specify the means of reducing the construction impact (at the cost of the applicant) of dust and noise on the nearby properties, and must provide that hours of work be in accordance with any relevant Local Law.

During the construction of the buildings and works allowed by this permit, the laneway(s) adjacent to the subject land must be kept free of parked or standing vehicles or any other obstruction, including building materials, equipment etc. so as to maintain free vehicular passage to abutting benefiting properties at all times, unless with the written consent of the responsible authority.

The value of the urban art required by Condition 1(e) must be at least 0.3% of the total building cost of the development.

The proposed works must not cause any damage to the existing street tree. Any tree root pruning of this tree must be carried out by a Council contractor to the satisfaction of the responsible authority prior to the construction of the crossover. Future maintenance and repair of this cross over and damage caused by the tree is the responsibility of the property owner/s. Pruning of the branches that project over the new proposed crossover must be pruned by a Council contractor to the satisfaction of the responsible authority. The Contractor and the responsible authority representative are required to be scheduled for a site meeting 2 weeks prior to the commencement of works.

Following the reinstatement of the existing vehicle crossover and before the development (including demolition) starts, a tree protection fence must be erected around the existing street tree at 10 metres from the new proposed crossover south, the whole nature strip is required to be fenced. This area is defined as a 'Tree Protection Zone'. The fence must be constructed from Temporary fence panels to prevent intrusion into the tree protection zone to the satisfaction of the responsible authority.

The tree protection fence must remain in place until construction is completed. The ground surface of the Tree Protection Zone must be covered by a 100mm deep layer of mulch before the development starts and be watered regularly to the satisfaction of the responsible authority.

1. Regulation of activities in Tree Protection Zone

No vehicular or pedestrian access, trenching, storage of materials or equipment or soil excavation is to occur within the Tree Protection Zone without the written consent of the responsible authority.

Prior to the commencement of the use, two (2) new street trees must be planted, the species, maturity and location of which must be to the satisfaction of the responsible authority. The new trees must be planted and maintained to the satisfaction of the Street Tree Coordinator at no expense to the Council.

Vehicular crossings must be constructed in accordance with the endorsed plans to the satisfaction of the responsible authority, before the use is commenced or building occupied:

1. Standard vehicular crossings must be constructed and/or widened at right angles to the road to suit the proposed driveways incorporating bluestone pitchers or suitably shaped and coloured concrete kerb and channel to match the existing laneway or kerb and guttering (as appropriate).
2. At the commencement of development, the redundant crossing must be removed and the footpath and kerb reconstructed incorporating bluestone pitchers or suitably shaped and coloured concrete kerb and channel to match existing kerb and guttering (as appropriate) to specifications to the satisfaction of the responsible authority and a cost borne by the applicant/owner. Any new car space(s) created along the street frontage of the site as a result of the removal of the crossing must be line marked to the satisfaction of the responsible authority. Any surplus bluestone pitchers must be returned to Councils depot, at cost to the applicant or owner.

1. Any proposed vehicular crossing must have satisfactory clearance of any side-entry pit, power or telecommunications pole, manhole cover or marker, or street tree. Any relocation, alteration or replacement required must be in accordance with the requirements of the relevant Authority and must be at the applicant's expense.

Prior to the completion of the development, the Applicant/Owner must do the following things to the satisfaction of the responsible authority:

1. Pay the costs of all alterations/reinstatement of Council and Public Authority assets necessary and required by such Authorities for the development.
2. Obtain the prior written approval of the Council or other relevant Authority for such alterations/reinstatement.

1. Comply with conditions (if any) required by the Council or other relevant Authorities in respect of alterations/reinstatement.

Prior to the commencement of the uses, there must be provision of a 'car share' space provided immediately outside the premises on Bank Street or within 50m of the subject site to the satisfaction of the responsible authority.

In lieu of a space not being able to be provided on the street by a registered car share company, a share car space may be allocated within the on-site car park with the written consent of the responsible authority.

Before the use commences, two (2) circular stainless steel bike racks must be installed at the applicant/owner's cost on the adjacent footpath to the satisfaction of the responsible authority. Prior to the installation the location of the bike racks must be approved by Council's Traffic Engineers and two copies of a street layout plan must be submitted indicating the agreed location of the bike racks to the satisfaction of the responsible authority.

Once the bike racks are installed, they become Council assets and the applicant/owner of the adjacent land has no further, ongoing obligations or responsibilities to the bike racks.

Before the use of the development starts, the area(s) set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be constructed, line marked to indicate each car space and access lane, and clearly marked to show the direction of traffic along access land and driveways, all to the satisfaction of the responsible authority.

Prior to the commencement of the use of the residential apartments and hotel rooms, noise attenuation works to the external façade of the building designed to achieve a maximum noise level of NR 25 in bedrooms or such higher level which will avoid sleep disturbance to the satisfaction of the responsible authority and the NR in bedrooms plus 5 in living areas within apartments must be completed to the satisfaction of the responsible authority.

Prior to the occupation of the building(s) allowed by this permit, all new or extended walls on or facing the boundary of adjoining properties and/or the laneway must be cleaned and finished to a uniform standard. Unpainted or unrendered masonry walls must have all excess mortar removed from the joints and face and all joints must be tooled or pointed to the satisfaction of the responsible authority. Painted or rendered or bagged walls must be finished to a uniform standard to the satisfaction of the responsible authority.

The public access to the building (including to the lobby and the convenience restaurant) shall be designed and constructed to provide convenient access to all people.

The development of the site must be provided with stormwater treatment works which must incorporate water sensitive urban design principles (including re-use) to improve stormwater discharge quality and minimise any increase in runoff as a result of the approved development. The system must be maintained to the satisfaction of the responsible authority.

The kitchen(s) mechanical exhaust system must be constructed in accordance with the Australian Standard number 1668 and/or to the satisfaction of the responsible authority.

All air conditioning and refrigeration plant must be screened and baffled and/or insulated to minimize noise and vibration to other residences to ensure compliance with noise limits determined in accordance with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No.N-1.

All piping and ducting (excluding down pipes, guttering and rainwater heads) must be concealed to the satisfaction of the responsible authority.

Any plant, equipment or domestic services visible from a street (other than a lane) or public park must be located and visually screened to the satisfaction of the responsible authority.

The mechanical car stackers are to be maintained in a good working order and be permanently available for the parking of vehicles in accordance with their purpose, to the satisfaction of the responsible authority.

Without the further written consent of the responsible authority, the car parking allocation for this development must be:

• not less than 0.62 car spaces for each one bedroom dwelling;
• not less than one (1) car space for each two bedroom dwelling;
• not less than 0.3 car spaces for each residential hotel lodging room;
• not less than one (1) car space for the convenience restaurant;
• each dwelling must be allocated 6m³ of storage.

No goods are permitted to be stored or left exposed outside the building so as to be visible from any public area.

This permit allows use of Levels 4-7 of the building for residential hotel rooms only, meaning the provision of temporary accommodation mainly for travellers and tourists. Nothing in this permit must be construed as permitting long term residential occupation of the rooms nominated as "hotel apartments".

All lighting of external areas must be suitably baffled so as not to cause nuisance or annoyance to nearby residential properties.

The amenity of the area must not be detrimentally affected by the development through the:

1. Transport of materials, goods or commodities to or from the land
2. Appearance of any building, works or materials

1. Emissions of noise, artificial light, vibration, smell, fumes, smoke, steam, soot, ash, dust, waste water, waste products, grit or oil;

1. Presence of vermin;
2. Change to television and/or radio reception;
3. In any other way.

Without the further written consent of the responsible authority, the convenience restaurant use may operate only between the hours of 7am and 6pm everyday.

Without the further written consent of the responsible authority, the convenience restaurant must not contain more than 40 seats.

1. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses. 2. Finished floor levels must be a minimum of 300mm above the applicable flood level.

1. Finished floor levels of the ground level car parking area must be constructed with finished floor levels a minimum of 150mm above the applicable flood level.

1. Prior to the issue of a Certificate of Occupancy, a certified survey plan, showing finished floor levels (as constructed) reduced to the Australian Height Datum (AHD), must be submitted to Melbourne Water to demonstrate the floor levels have been constructed in accordance with Melbourne Water's requirements.
2. Time for starting and completion

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

1. The development is not started within two (2) years of the date of this permit.
2. The development is not completed within two (2) years of the date of commencement of works.

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

[1] A review against failure is a deemed refusal under Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998.

[2] We are aware of the site's off-set orientation but have simplified directional references for ease.

[3] At the end of the hearing, we announced our decision to allow the Application. We indicated we would publish our decision with reasons. We have considered all submissions presented by the parties although we do not recite all of the contents in these reasons.

[4] Relevant policies and decision guidelines from the Port Phillip Planning Scheme include Clauses 11, 12, 14, 15.12, 16.02, 16.05, 17.02, 17.04, 19.03, 21, 22.06, 22.09 and 65. We were referred to the provisions of Amendment C62 as exhibited.

[6] Different provisions apply to sites fronting Kings Way.