Construct a building or construct or carry out works in the Heritage Overlay, Schedule 440.

Construct a building or construct or carry out works in the Design and Development Overlay, Schedule 8.

Reduce the number of car parking spaces required under Clause 52.06-5.

1. Before the development starts including demolition, 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 and dimensioned. The plans must be generally in accordance with the VCAT amended plans by Warren and Mahoney Living Australia Pty Ltd, Drawing No. TP00.01, TP00.02, TP00.03, TP00.04, TP00.05, TP10.01, TP10.02, TP10.10, TP10.11, TP10.12, TP10.13, TP10.14, TP10.15, TP10.16, TP20.01, TP20.02, TP02.03. TP02.04, TP20.10, TP30.01, TP30.02, TP30.03, TP30.04, TP30.10, TP30.11, TP50.01, TP50.02, TP50.03, TP50.04, TP50.05, TP50.06, TP50.07, TP60.01, TP60.02, TP60.04, TP60.05, TP60.06, TP60.07, TP60.08, TP60.09, TP60.10, TP60.11, TP60.12, TP60.13, TP60.14, TP60,15, TP60.16, TP60.17, all dated 14 February 2025, all revision F, but modified to show:

(a) Relocation of the proposed Ground Floor booster cabinetry to Park Street to the 'Office/Commercial' space, and replacement with full height glazing to match the balance of the 'Retail/Café' façade.'

(b) Substitution of obscure glazing for the western ground floor boundary window of the 'Office/Commercial' space with transparent glazing.'

(c) A reduction in downward views and overlooking to 5A Church Street and 62 Dow Street by including a planter along the western edge of dwelling 3.04 private open space and a 1.7m high privacy screen along the western edge of dwelling 2.04's private open space.

(d) Column drawing error to carpark no. 2.03 (Basement 02 Plan) and the carpark Office 04 (Basement 01 Plan) corrected.

(e) All obscured glass windows adjacent the lightwells to be fixed to a minimum height of 1.7 metres above the finished floor level.

(f) Not less than 9 cubic metres internal storage volume provided to dwelling 3.03.

(g) Provide design details for green roof as detailed in the Sustainable Management Plan (SMP) prepared by EcoResults.

(h) Notation to show the provision of a ceiling fan to floor plans associated to apartment 3.01 living room and apartment 4.02 bedroom 3 as detailed in the Sustainable Management Plan (SMP) prepared by EcoResults.

(i) Add note on floor plans for tap and drain provision to balconies as detailed in the Sustainable Management Plan (SMP) prepared by EcoResults.

(j) External shading to the west-facing living room glazing of apartment 4.01 as detailed in the Sustainable Management Plan (SMP) prepared by EcoResults.

(k) Modification to apartment 2.04 to demonstrate the clear path extends to the living area as per standard D18, as per the annotated apartment changes depicted at page 124 of the town planning report prepared by Urban Planning Collective, dated 24 March 2025.

(l) Confirmation that the roof top terrace achieve Standard D8 of clause 58.03-3, including additional shadow diagrams to demonstrate compliance.

(m) Details of the glazing recommended at Appendix A of the acoustic report prepared by Enfield Acoustics, dated 11 July 2024.

(n) Provide details on plans of light-coloured roof materials as detailed in the Sustainable Management Plan (SMP) prepared by EcoResults.

(o) The street wall must be modified as follows:

(1) The planter boxes at the edges of the balconies to dwellings 3.01 and 3.02 must be converted to upstand balustrades so as to largely conceal planting at this level from Park Street;

(2) The setback of the northern balustrade of the balcony to dwelling 3.01 must be a minimum 1.95 metres behind the street wall;

(3) The parapet height of the entire street wall must be reduced by 560 millimetres so that the western red brick parapet matches the parapet height of the building to the west at 223 Park Street but the height relationship between the eastern and western street wall elements remains unchanged;

(4) The overall building height is to be reduced by a corresponding 560 millimetres. The height reduction is to be achieved by lowering the floor to floor heights within the lower levels at ground, 1 and 2 in a manner that does not materially alter the proportions of the expressed floor levels and façade arrangement within the street wall and does not result in floor to floor levels of residential levels lower than 3.2 metres.

(p) Any changes required by condition 6 (Sustainable Management Plan).

(q) Any changes required by condition 9 (Waste Management Plan).

(r) Any changes required by condition 11 (Landscape Plan).

(s) Any changes required by condition 17 (Acoustic Report).

1. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

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

1. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.

1. Any plant, equipment or domestic services visible from the primary street frontage and side street (other than a lane), or public park must be located and visually screened to the satisfaction of the Responsible Authority.

1. Before the development starts, an amended Sustainable Management Plan (SMP) based on the advertised report prepared by EcoResults dated 19 March 2025 must be submitted to and approved by the Responsible Authority. The report must be amended to detail:

(a) All condition 1 changes where relevant.

(b) Provide design details for green roof.

Where alternative ESD initiatives are proposed to those specified in this condition, the Responsible Authority may vary the requirements of this condition at its discretion, subject to the development achieving equivalent (or greater) ESD outcomes.

When approved, the updated SMP will be endorsed and will then form part of this permit. The ESD initiatives in the endorsed SMP must be fully implemented and must be maintained throughout the operational life of the development to the satisfaction of the Responsible Authority.

Implementation Report for Environmentally Sustainable Design

1. Before the development is occupied, an ESD Implementation Report (or reports) from a suitably qualified person or company, must be submitted to and endorsed by the Responsible Authority. The Report must confirm that all ESD initiatives in the endorsed SDA/SMP and WSUD report have been implemented in accordance with the approved plans to the satisfaction of the Responsible Authority.  The ESD and WSUD initiatives must be maintained throughout the operational life of the development to the Satisfaction of the Responsible Authority.

Construction Management Water Sensitive Urban Design

1. The developer must ensure that throughout the construction of the building(s) and construction and carrying out of works allowed by this permit;

(a) No water containing oil, foam, grease, scum or litter will be discharged to the stormwater drainage system from the site.

(b) All stored wastes are kept in designated areas or covered containers that prevent escape into the stormwater system.

(c) 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.

(d) No mud, dirt, sand, soil, clay or stones are washed into, or are allowed to enter the stormwater drainage system.

(e) 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.

1. Before the development starts, an amended Waste Management Plan based on the advertised Waste Management Plan by EcoResults dated 7 March 2025 must be submitted to and approved by the Responsible Authority. The report must be amended to detail:

(a) Confirmation of the number of operational days for each commercial tenancy.

(b) Revise the waste generation for dwellings in line with Table 1 of the COPP Guidelines for Preparing a Waste Management Plan.

(c) Include glass generation calculations for the café.

(d) Review the chute system output design to ensure waste is correctly sorted into the appropriate bins.

(e) Provide detail regarding washdown area for bins

(f) Each type of waste stream colour coded;

(g) Bin locations;

(h) Number of bins;

(i) Size of bins;

(j) Hard waste storage area;

(k) E-waste bin; and

(l) Bin wash area.

Once submitted and approved, the waste management plan must be carried out to the satisfaction of the Responsible Authority.

1. An adequate waste management arrangement must be provided for the premises, in accordance with Community Amenity Local Law 2023 to the satisfaction of the Responsible Authority.

1. Before the development starts, an amended Landscape Plan must be submitted to, approved by and be to the satisfaction of the responsible authority, generally in accordance with the Landscape Plan submitted with the application. The plans must be generally in accordance with the advertised Landscape Plan by John Patrick Landscape Architects dated 26.06.2024 but modified to show:

(a) Water sensitive urban design.

(b) Increase the size of the planters proposed on Juliet balconies to support plants to thrive.

(c) Increase the size of the planter's area for proposed vines.

(d) Landscape plan to demonstrate drought-tolerant species selection

1. The landscaping on the subject land as shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the responsible authority before the occupation of the development and/or the commencement of the use or at such later date as is approved by the responsible authority in writing.

1. The landscaping as shown in the endorsed Landscape Plan must be maintained, and any dead, diseased or damaged plant replaced in accordance with the landscaping plan to the satisfaction of the responsible authority.
2. The splay on the western side of the driveway must be kept clear of vegetation so as to ensure that driver sightlines are maintained.
3. All landscaping shown in the approved landscape and public realm plans must be carried out and completed prior to occupation of buildings and thereafter maintained to the satisfaction of the Council.

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

1. Prior to the endorsement of plans, an acoustic report generally in accordance with the Acoustic Report prepared by Enfield Acoustics, dated 11 July 2024, must be submitted to and approved by the Responsible Authority. The revised acoustic report must be updated to provide for an assessment of noise related to mechanical and plant and equipment in accordance with EPA Noise Protocol 1826.4 - Part 1. Once submitted and approved, the acoustic report will be endorsed to form part of the planning permit.
2. Before occupation of the development approved by this permit, or as otherwise agreed in writing by the Responsible Authority, a Post Commencement Acoustic Report is to be submitted to the Responsible Authority. The report must detail the following matters to the satisfaction of the Responsible Authority:

(a) Confirmation that all of the recommendations of the endorsed Acoustic Report have been implemented.

(b) Confirmation that any noise emissions from mechanical plant and equipment complies with the EPA Noise Protocol; and

(c) Confirmation that the building achieves satisfactory internal noise levels (in accordance with Standard D16).

1. Before the development is occupied, all disused or redundant vehicle crossings must be removed and the area re-instated with footpath, nature strip and kerb and channel at the cost of the applicant/owner and to the satisfaction of the Responsible Authority.
2. Bluestone kerbs and gutters/channels to the street boundaries of the subject site must be protected, reconstructed and repaired in accordance with the guidelines provided in the Heritage Kerbs, Channels and Laneways Guidelines (City of Port Phillip, 2006). Applicant to Pay for Reinstatement.
3. Before the development is occupied_,_ the applicant/owner must do the following things to the satisfaction of the Responsible Authority:
4. Pay the costs of all alterations/reinstatement of Council and Public Authority assets necessary and required by such Authorities for the development.
5. Obtain the prior written approval of the Council or other relevant Authority for such alterations/reinstatement.
6. Comply with conditions (if any) required by the Council or other relevant Authorities in respect of alterations/reinstatement.

1. Before the development is occupied, any modification to existing infrastructure and services within the road reservation (including, but not restricted to, electricity supply, telecommunications services, gas supply, water supply, sewerage services and stormwater drainage) necessary to provide the required access to the site, must be undertaken by the applicant/owner to the satisfaction of the relevant authority and the Responsible Authority. All costs associated with any such modifications must be borne by the applicant/owner.

1. Before the development is occupied, an urban art plan in accordance with Council's Urban Art Strategy must be submitted to, be to the satisfaction of and approved by the Responsible Authority. The value of the urban art must be at least 0.5% of the total building cost of the development to the satisfaction of the Responsible Authority, unless otherwise agree in writing by the Responsible Authority. Urban art in accordance with the approved plan must be installed before the building is occupied.

Parking, bicycle and access lane must be available

1. Car and bicycle parking areas and access lanes must be developed and kept available for those purposes at all times and must not be used for any other purpose such as storage to the satisfaction of the Responsible Authority.

1. Any new apartment development allowed by this permit must not be connected to a reticulated gas service (within the meaning of 53.03 of the planning scheme). This condition continues to have force and effect after the development authorised by this development has been completed.

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

(a) The development is not started within 3 years of the issued date of this permit.

(b) The development is not completed within 5years of the issued date of this permit.

(c) The use does not start within 2 years of completion of the development.

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.

[1] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) states a failure to make a decision is deemed to be a decision to refuse to make the decision.

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

[3] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[4] Knox City Council v Tulcany Pty Ltd [2004] VSC 37.

[6] Salta Park Street Pty Ltd v Port Phillip CC [2022] VCAT 1127.

[10] Where the Tribunal has refused an earlier application but indicated a modified form of development or changes that might be acceptable, and the repeat appeal comprises a genuine attempt to address those issues.

[12] Zumpano v Banyule CC [2016] VSC 420, [23]-[29].

[13] [2015] VCAT 109 ('Burton & Carter').

[15] Salta Park Street Pty Ltd v Port Phillip CC [2022] VCAT 1127.

[16] Salta Park Street Pty Ltd v Port Phillip CC [2022] VCAT 1127.

[18] Evidence of Mr Briggs, paragraph 34 (in part), page 18.

[19] Port Phillip Council Delegates report page 10, dated 14 January 2025.

[21] Tables to Schedule 8 of Schedule 8 to the Design and Development Overlay.

[23] K Twite evidence statement, paragraph 80, page 30.

[24] Port Phillip Council delegate report dated 14 January 2025, page 38.